JUDGMENT Newaskar, J. 1. This is an application for permission to appeal in Forma pauperis submitted by the plaintiff-appellant who was allowed to file the present suit in Forma pauperis for partition and possession of the property left by the husband of the defendant valued at Rs.25,511-8-0 but bad not succeeded. The claim of the petitioner was based on the allegations that be had been adopted by defendant Radhabai after her husband's death in pursuance of the authority conferred upon her by him during his lifetime. Custom regarding adoption of a married boy was alleged and it was also alleged that although there was specific and express authority of her husband to adopt no such authority was needed amongst the members of their community and that a widow could make an adoption in the absence of specific authority. A deed of adoption said to have been executed by the defendant was also relied upon. The defendant denied the alleged adoption, as also the existence of the alleged authority to her to take the plaintiff in adoption. The alleged custom regarding adoption of a married boy as also one dispensing with the necessity of husband's express authority for adoption were also denied. Besides these facts she also pleaded existence of a will dated 14-12-1942 by her deceased husband in her favour whereby he had bequeathed absolutely all his property in her favour. The deprivation of possession in 1955 as alleged by the plaintiff was denied and it was asserted that she was always in possession. The trial Court found against the plaintiff of ail disputed points and consequently dismissed the suit. 2. The plaintiff preferred the present petition for leave to appeal in Forma pauperis. On 19-9-1961 this court admitted the petition after hearing Mr. Bharucha for the petitioner and directed issue of notice to the respondent as well as to the Government Advocate. A report is received from the State accepting the fact that the petitioner is not possessed of sufficient means to pay the court fees. The respondent however on appearance contends that the petition deserves to be dismissed as the decision of the Court below is not contrary to law or to any usage having the force of law nor is it otherwise erroneous or unjust. The matter was thereupon placed for hearing. 3. Mr. The respondent however on appearance contends that the petition deserves to be dismissed as the decision of the Court below is not contrary to law or to any usage having the force of law nor is it otherwise erroneous or unjust. The matter was thereupon placed for hearing. 3. Mr. Bharucha for the petitioner contends that the stage, for examining whether the decision was contrary to law etc. as provided in Order 44 Rule 1(2), had passed as the petition had been admitted after it had been set up for hearing as provided in Order 44 Rule 1(2) C.P.C. and that it is not now open for this Court to exercise powers of rejecting the petition under that provision. Reliance was placed by the learned counsel upon the decisions reported in Shib Krishna Vs. Panchanan Ganguly [AIR 1961 Cat 346-FB], M.A. Azeem Vs. Syed Miram [ AIR 1961 AP 65 ] and Abdul Majid Vs. Bhaurao [ AIR 1959 Bom. 67 ], in support of his contention. It was pointed out that the view expressed in Bhaironlal Vs. Ambikaprasad [I], is not approved in the aforesaid Bombay decision in a case coming from the region which was formerly under the jurisdiction of the Nagpur High Court prior to the coming into force of the States Re-organisation Act of 1956. 4. On the other hand it was contended by Mr. Malgawa that it is open for the opponent to induce the Court to hold that there is no reason to think that the decision is contrary to law etc. and the requirements of second clause of Order 44 Rule 1 are not satisfied in spite of the fact that the Court had admitted the petition initially after hearing the petitioner. Reliance was placed upon the decision of Pollock, J., in Bhairanlal Vs. Ambikaprasad [21 MPLC 514=AIR 1937 Nag 150], as also upon the decisions in Tilak Vs. Akhil [AIR 1931 Pat 183 (FB)]. Mst. Powdhari Vs. Mst. Ram Sanwari [AIR 1934 All 1004], Narsingh Dass Vs. Mool Raj [ AIR 1958 Raj 133 ] and Mohd. Un-Nisa Begum Vs. Fayaz Ali [AIR 1958 Panj 437]. 5. Ambikaprasad [21 MPLC 514=AIR 1937 Nag 150], as also upon the decisions in Tilak Vs. Akhil [AIR 1931 Pat 183 (FB)]. Mst. Powdhari Vs. Mst. Ram Sanwari [AIR 1934 All 1004], Narsingh Dass Vs. Mool Raj [ AIR 1958 Raj 133 ] and Mohd. Un-Nisa Begum Vs. Fayaz Ali [AIR 1958 Panj 437]. 5. The question is some what complicated because of sharp conflict of views disclosed in the decisions cited on either side although left to myself I would not be disposed to consider that it any way involves the question of jurisdiction as suggested in the Full Bench decision of the Calcutta High Court in A.I.R. 1961 Calcutta 346. It may no doubt involve the question of property and a Court if it has once applied its mind and held that the decision appeared to it as satisfying the condition laid down in Sub-rule (2) of Order 44 Rule 1 C.P.C., it would not be disposed to reconsider the question since all that it need be satisfied about is that the decision of the Court below is apparently contrary to law etc. The phrase 'reason to think' in sub-clause (2) of Order 44 Rule 1 implies Prima facie and not conclusive assessment. The power of admission is not confined to those cases where the decision is contrary to law or to some usage having the force of law but extends even where the decision appears to the Court to be other wise erroneous or unjust. Elastic as these terms are and leave a large amount of discretion to the appellate Court yet there appears to be practical consensus of judicial opinion that where the decision turns upon mere assessment of evidence i.e. upon the question as to which set of witnesses should be believed and which set should be disbelieved, it cannot be said that the decision is contrary to law or to any usage having the force of law or is otherwise erroneous or unjust, Vide Arunendra Nath Vs. San at Kumar [93 Cal LJ 165], Jagat Ram Vs. Ganga [AIR 1951 Punj 30] and Swaminatha Pillai Vs. Balasubramanya [ AIR 1952 Mad 173 ]. 6. San at Kumar [93 Cal LJ 165], Jagat Ram Vs. Ganga [AIR 1951 Punj 30] and Swaminatha Pillai Vs. Balasubramanya [ AIR 1952 Mad 173 ]. 6. As absorved aboved above there is sharp conflict upon the question whether when a Court admits a petition after hearing the counsel for the appellant it has any power left in him to reject the application on the ground that there is no reason to think that the decision is contrary to law etc. 7. Before examining the reasoning upon which these conflicting views are based it will be useful to refer to the material provisions in the Code bearing upon the point. Order 44 which lays down procedure regarding pauper-appeals contains two rules. They are- Rule 1 "(1) Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all matters, including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable: (2) The Appellate Court, after fixing a day for hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and upon a perusal of the application and of the judgment and decree appealed from, shall reject the application, unless it sees reason to think that the decree is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust." Rule 2. "The inquiry into the pauperism of the applicant may be made either by the appellate Court or under the orders of the Appellate Court by the Court from whose decision the appeal is preferred. Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court from whose decree the appeal is preferred, no further inquiry in respect of his pauperism shall be necessary, unless the Appellate Court sees cause to direct such inquiry." 8. Rule 1 as it stood prior to its amendment by the Civil Procedure Code (Amendment) Act 1956, did not consist of two sub-rules but had the main part as it is in sub-rule (1) and a proviso. Rule 1 as it stood prior to its amendment by the Civil Procedure Code (Amendment) Act 1956, did not consist of two sub-rules but had the main part as it is in sub-rule (1) and a proviso. Unlike the present sub-rule (2) it did not contain a provision for a hearing being given to the applicant or his pleader before rejection of the application under the same. 9. Now sub-Rule (1) of Order 44 Rule 1 reference to three stages (1) presentation of an application along with a memorandum of appeal by a pauper, (2) the presentation and consideration of the application is to be subject to the provisions relating pauper suits, and (3) allowing of the petition. The appellate Court's duty and power of rejection is referable to the 2nd stage. 10. The object of the proviso as it stood before and of sub-rule (2) as it stands now, can best be put in the words of Jankins, C.J., in Sakubai Vs. Ganpat Ramkrishna [ILR 28 Bom 451-452]. In actual practice just as there was the possibility of the proviso being overlooked as was observed by the learned Chief Justice, there was even greater danger of these appeals being rejected summarily without the aggrieved party being afforded any hearing what soever. This possibility was there because on the terms of the proviso the application could be rejected merely on the perusal of the judgment and decree as also the memorandum of appeal. To avoid this danger sub rule (2) now provides that such application cannot be rejected unless a date is fixed for hearing at which either the applicant or his counsel is heard. It is clear that at this stage before the pauperism is allowed the appellate Court has to form a Prima facie opinion as to whether the same satisfies the requirements of sub-rule (2). This Prima facie opinion may be formed at an early stage by merely hearing the applicant or his counsel and if at that stage it sees reason to think that the decision is contrary to law etc. it can direct issue of notice under Form 11 Appendix G. When the respondent is given opportunity to show because why the application be not allowed there is nothing in law to prevent him from urging that the case does not fulfill the requirements of sub-rule (1). it can direct issue of notice under Form 11 Appendix G. When the respondent is given opportunity to show because why the application be not allowed there is nothing in law to prevent him from urging that the case does not fulfill the requirements of sub-rule (1). Since what the Court has to do at this stage is not to make conclusive determination (vide Chudaman Shamrao Vs. Babaji Daduappa) [31 MPLC 27=AIR 1944 Nag 357] but to have a prima facie appraisal as to the existence of legal error in the judgment, the Court more often than not will be unwilling to mode its views but in any particular case if it chooses to do so on hearing the respondent it cannot be said that this is without jurisdiction. The reason is obvious. The appellate Court at the stage when the respondent appears on issue of notice under form 11 of Appendix G is still in the seisin of the case as it has neither rejected the application nor allowed the same by then. It is one thing to say that the Court having once applied its mind as to Prima facie nature of the case would not be disposed to after its view and it is another thing to say that it has no jurisdiction to do it. 11. It will be useful at the present stage of discussion to examine the conflicting views of different High Courts on this point. 12. In Mst. Powdhari Vs. Mr. Tam Sanwari [AIR 1934 All 1004-FB]. Sulaiman, C.J., considered this question on a reference to the Full Bench. He held. "No doubt there is no express provision in O. 44 applicable to appeals for the issue of a notice, but the provisions, in so tar as they are applicable, contained in Order 35, ought to be understood to be incorporated inasmuch as Rule 1 expressly lays down, It is therefore difficult to hold that a Court has no jurisdiction to order notices to issue before deciding the question. It would follow that it cannot be seriously contended that a mere order directing notice to issue implies a final adjudication as to the right of the applicant to appeal as a pauper, provided he establishes the fact of his pauperism. It would follow that it cannot be seriously contended that a mere order directing notice to issue implies a final adjudication as to the right of the applicant to appeal as a pauper, provided he establishes the fact of his pauperism. Appendix (G), Form No. 11 which is part of the Code contains the form of notices of appeal in forma pauperism which may be issued under Order 44, Rule 1 in some judgment it has been wrongly supposed that notice on this form is issued under Rule 2 and not under Rule 1. The form itself expressly States that it is a notice under Order 44, Rule 1. Under this notice the opposite parry is called upon to show cause why the applicant should not be allowed to appeal as a pauper and that opportunity would be given to him of so doing. It is therefore quite clear that when notice has been ordered to be issued to the opposite party the latter is expected to appear and show cause against the whole application which would necessarily include the question not only whether the applicant is a pauper, but also whether the judgment and decree are also contrary to low or to some usage having the force of law or is otherwise erroneous or unjust". The principal reasoning emphasised by the learned Chief Justice is that even after the issued of notice to the respondent the Court does not become functus officio and it is not the case of absence of jurisdiction if he ultimately dismisses the application on the ground open to him even before the issue of notice. Analogy of Order 33, Rules 5 and 7 was considered apposite in this connection. 13. The decision in Tilak Vs. Akhil [AIR 1931 Pat. 183 (FB)], takes almost the same view. The decision in Basant Kuar Vs. Chandulal [AIR 1929 Lah 514] and other Lahore and Punjab decisions notably Mohd. Un-Nisa Begum Vs Fayaz Ali [AIR 1958 Punj 437], are similar Narsingh Dass Vs. Mool Raj, [ AIR 1958 Raj 133 ], also follows that view. So does the decision in Bhairanlal Vs. Ambikaprasad [21 MPLC 514=AIR 1937 Nag 150]. The Chief Court of Outh in Habshi Mian Vs. Nawab Mehdi Hasan [AIR 1937 Oudh 222 (FB)], also takes the same view. 14. However a recent Full Bench decision of the Calcutta High Court in Shib Krishna Vs. So does the decision in Bhairanlal Vs. Ambikaprasad [21 MPLC 514=AIR 1937 Nag 150]. The Chief Court of Outh in Habshi Mian Vs. Nawab Mehdi Hasan [AIR 1937 Oudh 222 (FB)], also takes the same view. 14. However a recent Full Bench decision of the Calcutta High Court in Shib Krishna Vs. Panchanan Ganguly [ AIR 1961 Cal 346 ], which takes account of its previous decisions to the contrary, holds that where at the stage prior to the issue of notice to the respondent the pauper application is not rejected on the grounds given in Sub-Rule (2) of Order 44 Rule 1 it is incompetent for it either to hear the respondent about the property or expediency of admission of the application and the appeal or to reject it under that sub-rule. The learned Chief Justice Lahiri, quoted the following observation of Sulaiman, C.J.:- "We do not of course mean to lay down that the court is bound to issue notice to the opposite party (in an application under Order 44, Rule 1) nor do we lay down that once notice has been issued the Court is compelled to hear the opposite party and cannot change its mind and review its previous order under section 151, C.P. Code. Our view is that there is nothing to prevent the Court from hearing counsel and dismissing the application ultimately on the ground that the decree and judgment are not contrary to law etc. even if notice has been issued and parties have appeared through counsel." and then said- "With all the respect that is due to an eminent Judge like Sulaiman, C.J., I venture to think that there observations lead us nowhere. If the Court has the power to grant leave to an applicant under Order 44, Rule 1 even without issuing any notice to the respondent, it is difficult to see how the Court can revoke that leave under section 151, Civil Procedure Code. If the Court has the power to grant leave to an applicant under Order 44, Rule 1 even without issuing any notice to the respondent, it is difficult to see how the Court can revoke that leave under section 151, Civil Procedure Code. It seems to me that the correct view is to issue a notice in all cases upon the respondent in Form No. 11 of Appendix (G) of Schedule I of Civil Procedure Code, if the application is not dismissed under the proviso to Order 44, Rule 1 but to restrict the right of the respondent to challenge the pauperism of the applicant on the grounds enumerated in clauses (a), (b), (c) and (c) of Order 33 Rule 5." He further observes in para 10 of the report:- "Most of the decisions which have taken the contrary view proceed upon the theory that when an application under Order 44, Rule 1 is presented before the Court, its first duty is to issue a notice upon the respondent to show cause why the petitioner should not be allowed to file the appeal as a pauper without considering the question under the proviso to Rule 1. Reliance has been placed in some of the decisions upon the practice prevailing in different High Courts. With respect I venture to think that on a matter like this it is not sate to rely on practice but to proceed upon a true interpretation of the language of the statute; because practice may differ in the different High Courts and also in the different Benches of the same High Court; and the practice may also be contrary to the true spirit of the language of the statute. As I have already said on a true construction of the language of Order 44, Rule 1 read with the proviso, the first duty of the Court on the presentation of an application under Order 44 Rule 1 is to apply its mind to the questions whether the conditions of the proviso have been fulfilled and it is only after that has been done that the Court is to Issue a notice in Form No. 11 of Appendix G of Schedule I of the Civil Procedure Code." 15. The Bombay High Court in its decision reported in Abdul Majid Vs. Bhaurao [AIR 1959 Bom. 57] follows the view taken in Panchu Bala Vs. The Bombay High Court in its decision reported in Abdul Majid Vs. Bhaurao [AIR 1959 Bom. 57] follows the view taken in Panchu Bala Vs. Nikhil Rajan [ AIR 1956 Cal 530 ] by the Calcutta High Court which the later Full Bench Calcutta case referred to above affirmed. The learned Judge Mudholkar, J., in the aforesaid Bombay decision seems to have been much impressed by the use of the word 'perusal' as it appeared in the proviso to Order 44 Rule 1 prior to its amendment in 1956. He also considered the reasoning of Ramesam, J., in Somasunoaram Chettiar Vs. Arunachalam Chettier [AIR 1932 Mad. 523] to the following effect:- “It seems to me that the Form appended to the Code should not be allowed to extend the meaning of the Section and the rules in the code. The Form has to be construed with reference to Order XLIV, Rule 1, and not that Order XLIV, Rule 1, should be construed with reference to the Form. In my opinion, Form No.11 only refers to cases where notice is given with reference to rules 1 and 2 and the respondent is given an opportunity; and, as the notice is given only with reference to pauperism, the Form itself only gives an opportunity to the respondent to show that the applicant is not a pauper. It has nothing to do with the question mentioned in the proviso.” to be correct. 16. On consideration of the reasoning underlying each set of decisions it seems to me that the reasoning of the Full Bench decisions of Allahabad, Patna, Oudh is correct and the decision of this Court in 21 MPLC 514= A.I.R. 1937 Nagpur 150 is in line with the same and ought to be followed. The line of reasoning upon which this view is based has already been set out at the outset before the conflicting decisions were reviewed. 17. It is then passed by tile learned counsel for the applicant that since he was heard and the case was admitted though it was not stated that there is reason to think that the decision sought to he appealed against is contrary to law etc. still it should be presumed that this is what is implied by the admission. 17. It is then passed by tile learned counsel for the applicant that since he was heard and the case was admitted though it was not stated that there is reason to think that the decision sought to he appealed against is contrary to law etc. still it should be presumed that this is what is implied by the admission. In my opinion in the absence of specific mention in the order to that effect it cannot be so implied as a necessary conclusion. Moreover even if that be so since there is neither rejection of the pauper application nor the allowing of it the matter is in the seisin of the Court and it is open for this Court to consider the applicability of conditions in sub-rule (2) for rejection of the application. 18. This takes us to the judgment and the grounds of appeal. We have to consider whether the decision is contrary to law or to any usage having the force of law or is otherwise erroneous of unjust. 19. We have perused the judgment and the decree as well as the memorandum of appeal. The dispute relates to the adoption of plaintiff by the defendant, existence of husband's authority for the purpose and existence of custom to make such adoption even in the absence of such authority. The learned trial Judge was not satisfied about the existence of custom alleged on the basis of the solitary witness Jugrajsingh a Mill Labourer whose statement did not appear to be worth relying and being acted upon. On the question of giving and taking, the natural probability of the case in the entire context together with the actual evidence of the persons said to be present at the time did not satisfy him that actual giving and taking did take place. Alleged subsequent execution of the deed acknowledging adoption was held to be unreliable. Perusal of the judgment and the memorandum does not satisfy us that the decision is contrary to law or the usage having the force of law or is otherwise erroneous or unjust. Mr. Bharucha emphasised that the defendant was estopped from denying the adoption since she took the plaintiff in adoption without disclosing to him the existence of the will in her favour and thereby induced her to change his position to his detriment. This has no substance. Mr. Bharucha emphasised that the defendant was estopped from denying the adoption since she took the plaintiff in adoption without disclosing to him the existence of the will in her favour and thereby induced her to change his position to his detriment. This has no substance. There is an assumption in this submission that adoption did take place. Apart from plaintiff's right to canvass this question of fact on payment of court fees, this could not be assumed for basing the contention as to estoppel. Secondly there could be no estoppel if an adoptive mother does not disclose a will in her favour. The adoption is meant for spiritual benefit of the deceased husband of the widow and the right to property is merely incidental and the widow is divested of the property held by her from her deceased husband as a limited owner. She cannot be divested of her own property. 20. There is consequently no reason to think that the decision in question is contrary to law or to come usage having the force of law or is otherwise erroneous or unjust. 21 The application is rejected with costs.