JUDGMENT : A. Misra, J. - Plaintiff is the Appellant against a reversing judgment in a partition suit. Her case, in brief, is that Ratnakar Matagagsingh, owner of the suit properties, die in the year 1961 leaving behind him his two daughters Plaintiff and Defendant No. 2 through his deceased first wife Satyabhama and his second wife is Defendant No. 1. Thus, Plaintiff, Defendant No. 2 and Defendant No. 1 each became entitled to 1/3rd of the properties of Ratnakar. She filed the suit for partition of the said properties and allotment of her share. 2. Originally, the suit was filed against Defendant Nos. 1 and 2. They raised the defence that Plaintiff is not the daughter of Ratnakar, that Ratnakar had adopted Defendant No. 2 son and that the case Plaintiff is found to be the daughter, she will be entitled to only 1/6th share. The trial Court found that Plaintiff is the daughter of Ratnakar; that Defendant No. 2?8 son had been adopted by Ratnakar, but the said adoption of a daughter?s son was invalid and as such decreed the suit as prayed for. On appeal, the lower appellate Court remanded the suit for fresh trial after impleading the alleged adopted son. Thereafter, Defendant No. 3 was impleaded and the suit proceeded afresh. 3. The trial Court after remand found that Plaintiff is the daughter of Ratnakar that adoption of Defendant No. 3 was not proved and that adoption of a daughter?s son among Khetriyas is invalid in law. On these findings, Plaintiff?s suit was decreed. On appeal, the lower appellate Court affirmed the finding that Plaintiff is the daughter of Ratnakar but reversed the rest of the findings holding that adoption of Defendant No. 3 by Ratnakar is proved and that the same is also valid. During the pendency of the appeal, Defendant No. 1 died and as such her share also devolved on the remaining parties. Accordingly, the lower appellate Court passed a preliminary decree declaring that Plaintiff and Defendant No. 2 are each entitled to 2/9th share, while Defendant No. 3 as adopted son is entitled to 5/9th Share Against this judgment and decree, the present second appeal has been filed. 4. Accordingly, the lower appellate Court passed a preliminary decree declaring that Plaintiff and Defendant No. 2 are each entitled to 2/9th share, while Defendant No. 3 as adopted son is entitled to 5/9th Share Against this judgment and decree, the present second appeal has been filed. 4. There is no dispute that the suit properties belonged to Ratnakar who died in the year 1961, The concurrent finding of the Courts below is that Plaintiff is a daughter of Ratnakar and this finding has not been assailed nor is assailable in second appeal. The only point urged by learned Counsel for Appellant is that the Courts below have committed a gross error in upholding the validity of adoption, in view of the admitted case of parties that they are Khetriyas, and as such, belong to the twice-born class. It is contended that though the finding of the lower appellate Court about the factum of adoption on an appreciation of evidence may not be open to challenge in second appeal, in the present case, that fact by itself is not sufficient to uphold the adoption as valid. To uphold the validity of an adoption of a daughter?s son, as in this case, it is further necessary that a valid custom sanctioning such an adoption should also be proved and found by the Court. The principle of law is well settled and is not disputed before me that the boy who is to be lawfully taken in adoption must not be one whose mother the adoptive father could not have legally married in her maiden state. In this case, Ratnakar is said to have taken his daughter?s son in adoption and such an adoption undoubtedly comes within this prohibitory rule. On the other hand it is argued on behalf of Respondents firstly, this rule of prohibition is not applicable to Sudras as it is restricted to the three twice-born classes and secondly, even in the case of latten, though such an adoption is prohibited under the rule, it will be valid, if sanctioned by custom. Defendant No. 1 in his written statement specifically Pleaded that, the custom prevalent in the caste to which the parties belong permitted adoption of a daughter?s son. No issue was framed by the trial Court as to whether such a custom exist sanctioning adoption of a daughter?s son nor any finding given. Defendant No. 1 in his written statement specifically Pleaded that, the custom prevalent in the caste to which the parties belong permitted adoption of a daughter?s son. No issue was framed by the trial Court as to whether such a custom exist sanctioning adoption of a daughter?s son nor any finding given. Under issue No. I, it observed that P.ws. 9 and 10 belong to the same caste as Defendant No. 3 and they claim to be khetriya, & by caste. Therefore, unless custom is proved, the adoption of, daughter?s son cannot be valid. While making the aforesaid observations, it has not referred to the evidence of if any, adduced in proof of such a custom nor given any specific finding. The lower appellate Court, in para 9 of its judgment, on the other hand, observed that from the evidence of d. ws. and p. we., it was inclined to believe that the family was khandayat by caste and as such could not belong to the twice-borne category. Similarly, it has referred to the evidence of the d. ws. in general and observed that there have been instances where a daughter?s son has been adopted validly. There is no discussion or specific finding on the evidence whether the parties are Sudras, while from the judgment of the trial Court it appears that the case of the parties is that they belong to the Khetriya caste. The lower appellate Court has also not given any finding about existence of any custom sanctioning adoption of a daughter?s Bon. Thus, in this case, though the factum of adoption has been accepted as proved by the lower appellate Court, there is absence of a finding by either of the Courts, below as to whether the parties are Sudras by caste or they belong to twice-born class, and secondly, in case they belong to the latter category, whether any custom sanctioning adoption of a daughter?s son has been proved. In these circumstances, the judgment of the lower appellate Court has to be set aside and the suit remanded to the trial Court to frame a specific issue on the question whether the parties belong, to the twice-born class and if so, whether a custom sanctioning, adoption of a daughter?s son? exists among them. In these circumstances, the judgment of the lower appellate Court has to be set aside and the suit remanded to the trial Court to frame a specific issue on the question whether the parties belong, to the twice-born class and if so, whether a custom sanctioning, adoption of a daughter?s son? exists among them. The trial Court will allow evidence only for we limited purpose of praying the aforesaid points relating to the caste of the parties and, the custom, if any, and dispose of the suit according to law. 5. In the result, the appeal is allowed, the judgment, and decree of the Courts below are set aside and the Suit, remanded, to the trial Court for fresh disposal according to law in the light of the above observations. Costs of this appeal will abide the final result. Final Result : Allowed