JUDGMENT 1. - This special appeal by the plaintiff Smt. Imarti widow of Gordhan is directed against the judgment of V.P. Tyagi, J., dated July 28, 1975 dismissing the plaintiff's suit for declaration that the mortgage deed dated 16.6.1955, exhibit 25, executed by the defendant No. 1 Kishanlal and his two minor sons defendant Nos. 2 and 3, in favour of the defendant Nos. 4 to 8, was not valid and binding on her. 2. During the pendency of the appeal, the plaintiff Mst. Imarti died and, therefore, her daughter Mst. Mohini was substituted as for L.R. She also died and her son Nemi Chand has been brought on record as Mst. Mohini's L.R. 3. The facts giving rise to the appeal in brief are as follows : On 27. 11.1959, the plaintiff Mst. Imarti widow of Gordhan brought the suit for declaration that she was the owner of the property described in para No 1 of the plaint viz. Pol and four shops situated at Nagaur and the defendant No. Kishanlal had no right, title or interest therein and, therefore, the mortgage deed dated 16-6-1955, exhibit 25, was null and void; and for possession of shop No. 3 The plaintiff's case was that she had purchased 3 plots from Premraj, Ramratan and the State for Rs. 175/-, Rs. 45/- and Rs. 21/- respectively with her own money and that the construction of the disputed shops and the Pol was effected by her. Since she wanted to take Kishanlal in adoption to her husband Gordhan, she got the name of Kishanlal entered benami in the sale deeds and the Patta thereof. The plaintiff avers that the suit property was her. Her case was that Kishanlal was a minor at the time of the purchase as well as of the patta, and he was still a minor at the time of construction of the Pol and the inner apartments as also the shops. She alleges that as the defendant No. 1 Kishanlal did not be have well, she changed her mind and did not adopt him, and therefore he left Nagaur and began residing at Bikaner. After some time, he returned to Nagaur and prevailed upon the plaintiff to permit him to reside in the Pol. The plaintiff allowed him to do so and the defendant No. 1 taking advantage out of it mortgaged the suit property with the defendant Nos. After some time, he returned to Nagaur and prevailed upon the plaintiff to permit him to reside in the Pol. The plaintiff allowed him to do so and the defendant No. 1 taking advantage out of it mortgaged the suit property with the defendant Nos. 4 to 8 on 16-6-1955. The plaintiff further avers that though the defendant No. 1 Kishanlal asserts himself to be the adopted son of her husband Gordhan, but that was not so. 4. The plaintiff's claim was contested by the defendant No. 1 Kishan Lal and the mortgagees defendant Nos. 4 to 8. Their defence was common, though they filed separate written: statements. They pleaded, inter alia, that the defendant No. 1 Kishanlal was adopted by Gordhan in the year 1908 or 1909 when he was 21/2 years of age and as such he was the owner of the suit properly. Their case was that the plaintiff Mst. Imarti during her life-time upto 1955 when the dispute actually arose about the mortgage treated the defendant No 1 Kishanlal as her own son. Further their defence was that Kishanlal, with his own funds, had not only purchased the suit land from Premraj, Ramratan and the State, but also had constructed the Pol and the shops in dispute out of his own earnings and, therefore, he was the ownes thereof and he rightly mortgated the suit property. 5. Without framing an issue on the question of adoption, the learned District Judge decreed the plaintiff's suit holding that she had purchased the there plots with her money and that she got the name of the defendant No. 1 Kishanlal entered benami in the sale deeds and the patta. He accordingly upheld the plaintiff's claim for declaration of her title to and possession of the Pol and shop Nos. 1 and 3, but dismissed the same with respect to shop Nos. 2 and 4 since she claimed no consequential relief for possession in respect thereof. Being aggrieved, the defendant Nos. 1, 4 to 8 preferred an appeal to this Court. 6. The most crucial question to be tried in the suit was one of adoption and since no issue was framed in regard thereto, Bhargava, J., by his remand order dated 5-5-1970, remitted four additional issues under Order 41 Rule 25 of the Code of Civil Procedure. 1, 4 to 8 preferred an appeal to this Court. 6. The most crucial question to be tried in the suit was one of adoption and since no issue was framed in regard thereto, Bhargava, J., by his remand order dated 5-5-1970, remitted four additional issues under Order 41 Rule 25 of the Code of Civil Procedure. One amongst the other issues was the one regarding adoption to the effect:- "Whether Gordhan husband of the plaintiff had adopted the defendant as his son in his left-time in the year 1908 or 1909 ?" By his judgment dated 25-11-1972, the learned District Judge came to the conclusion that it was not proved that Kishanlal was adopted by Gordhan during the year 1008 or 140(l) and that the documents mentioning him to be the son of Gordhan did not prove the fact of adoption since they related to later dates than the year 1914 when the deed of adoption was compulsorily registrable under section 7(4) of the Marwar Law of Registration, meaning thereby the Marwar Durbar Notification dated 11-4-1914. 7. On appeal, the learned Single Judge has come to the following conclusions:- - 1) The documents leave no room for doubt that Kishanlal was treated not only by Mst. Imarti but by all the members of the family of Gordhan including his son in-law and the daughter as the son of Gordhan for a period of over 45 years and, therefore, the presumption was in favour of the validity of adoption as laid down by the Supreme Court in L. Debi Prasad v. Smt. Triveni Devi and others, ( AIR 1970 SC 1286 ). 2) The consistency with which the age of Kishanlal has been recorded in various documents by the Registrar and given out by Kishanlal himself before the court goes to show that Kishan Lal was born som where in the year 1908 or 1909 and not in the year 1915. 3) The preponderance of evidence is in favour of the defendant No. 1 Kishanlal to be the owner of the Pol and the shops in question. As the patta of the land on which the property was constructed stands in his name, it cannot be accepted that the property mortgaged by Kishanlal in favour of the defendant Nos. 4 to 8 was the personal property of Mst. Imarti. As the patta of the land on which the property was constructed stands in his name, it cannot be accepted that the property mortgaged by Kishanlal in favour of the defendant Nos. 4 to 8 was the personal property of Mst. Imarti. On these findings, the learned Single Judge reversed the decision of the District Judge and dismissed the plaintiff's suit. 8. Three questions fall for determination in the appeal. The first is, whether the defendant No. 1 Kishan was actually born in the year 1915 as is evidenced by the horoscope, exhibit 7 and, therefore, the factum of adoption cannot be proved in the absence of a deed of adoption duly registered as required by the Marwar Durbar Notification dated 11-4-1914. The second question is, whether the question of age is a question of relationship within the meaning of sub-section (5) of section 32 of the Evidence Act and, therefore, the previous statements of Kishan Lal as to the date of his birth vide exhibits 20, 21, 25, A/34 and A/37 were admissible in evidence under section 21 of the Act ? The last question is, whether the defendant No. 1 Kishanlal was a mere benamidar? 9. The factum of adoption was rightly not challenged before us. The learned Single Judge rightly observes that the oral testimony of Heeralal DW/34, a man aged 84 years who witnesses the ceremony of adoption some 65 years before, cannot be lightly brushed aside. It needs deep scrutiny and there is no reason for us to differ from the learned Single Judge that the documents exhibits 14, 15, 16, 17, 19, 20, 21 and 25 lead to no other inference than that, not only Mst. Imarti, but all the members of the family of Gordhan including his son-in-law Bhanwarl, the father of the appellant and his daughter Mst. Mohini and his mother had treated him to be the son of Gordhan. These documents pertain to the acquisition of the plots from Premraj, Ram Ratan and the State on the one hand and the execution of the three mortgage deeds by the defendant No. 1 Kishanlal on 13-1-1931, 31-10-1930 and 25-4-1931 on the other. In all these documents, Kishanlal has been described to be the son of Gordhan. These documents pertain to the acquisition of the plots from Premraj, Ram Ratan and the State on the one hand and the execution of the three mortgage deeds by the defendant No. 1 Kishanlal on 13-1-1931, 31-10-1930 and 25-4-1931 on the other. In all these documents, Kishanlal has been described to be the son of Gordhan. Shri Lodha appearing for the appellants raised a contention that the admissions made by Kishanlal about his age in his previous statements exhibits A/34, A/37, 20 and 21 were not admissible in evidence. The same argument has been repeated before us. The submission is that admission of age does not fall within exception 1 to section 21 of the Evidence Act and, therefore, the statement regarding age cannot fall within the purview of section 32(5) of the Act. There is no warrant for the contention. The matter is squarely covered by the decision of this Court in Madan Singh v. The State (AIR 1954 Rajasthan 38) and that of their Lordships of the Supreme Court in Kalidindi's case ( AIR 1968 SC 947 ) . The learned Single Judge rightly holds that the question of age is a question of relationship by blood and, therefore, the recitals about the age can be made admissible under the provisions of section 32 (5) of the Evidence Act. It was observed by their Lordships in Kalidindi's case, supra:- "It is clear from sub-section (5) that if construed literally it is possible to contend that a statement regarding the age of the person concerned is not one relating to the existence of any relationship by blood or marriage or adoption. But such a literal construction is not a proper of as has been ruled in more than one decision." 10. The learned Single Judge repelled the contention of Shri Lodha on the ground that according to the law then prevalent in the Marwar State, there should not only be a document executed evidencing the factum of adoption but it must be registered as per the resolution adopted by the Council of the State Government. The argument was rightly rejected by the learned Single Judge stating:-- "This argument has been built on the assumption that Kishanlal was born in the year 1915 and, therefore, this adoption is governed by the notification of year 1914 of Marwar State. The argument was rightly rejected by the learned Single Judge stating:-- "This argument has been built on the assumption that Kishanlal was born in the year 1915 and, therefore, this adoption is governed by the notification of year 1914 of Marwar State. Since I have come to the conclusion that Kishanlal was born somewhere between the years 1907 and 1909 A.D. the base of this argument goes away. There is no warrant for this Court to hold that the adoption is invalid because no deed of adoption was executed and registered by the adoptive father." 11. We need not repeat the reasoning of the learned Single Judge for holding that the age of Kishanlal as recorded in the various documents, clearly show that he was born somewhere in the year 1908 or 1909 and not in the sear 1915. To our mind, the genuineness of the so called horoscope, exhibit 7, is not beyond question. It is mysterious how this document was brought to light. Mst. Imarti PW/1 would have us believe that Jeevrai, the natural father of the defendant No. Kishanlal made over the horoscope to her. The story besides being unnatural, appears to be untrue. It appears that the document has been got up to support the false case of the plaintiff. Besides, it is of no avail to her. For ought we know, they year 1915 which finds mention in it was the year in which the horoscope, if any, was prepared. That takes us nowhere. That being so, the adoption of Kishanlal is not hit by the Marwar Durbar Notification dated 11-4-1914. The decision in Bhanwarlal v. Mangilal, (AIR 1955 Rajasthan 129) is clearly distinguishable on facts. There, the adoption had taken place after the Council resolution had come into force. 12. In that view, the question of the defendant No. 1 Kishanlal being a benamidar of the suit property does not really arise. If the adoption of Kishanlal is established, the plaintiffs suit must fail. The plaintiff lmarti on examining as a witness after remand unequivocally admitted that she had inherited 15,000/- in cash and 2 seers of gold and 5 seers of silver from her husband Gordhan and it is out of that money that she had constructed the Pol and the shops in question. That being so; the suit property was impressed with the character of being ancestral property. That being so; the suit property was impressed with the character of being ancestral property. The defendant No. 1 Kishanlal being the adopted son of Gordhan the plaintiff Mst. Imarti was divested of the property. Faced with the difficulty, Shri Lodha appearing for the appellants, had rightly not pressed into service the plaintiff's contention that the transaction was benami. On the contrary, his argument was that suit property was the self-acquired property of the plaintiff Ms. Imarti. The plea of benami was, therefore, expressly abandoned. Learned course for the appellant cannot, therefore, be heard to say that the defendant No. 1 Kishan Lal was a mere benamidar. 13. Even otherwise, the fact that the consideration was paid by the plaintiff Mst. Imarti is not necessarily in itself sufficient to establish that the transaction was benami. The test is subject to the qualifications "in the absence of all other relevant circumstances", as held in Dariyaosingh and others v. Smt. Halkibai, ( AIR 1976 MP 194 ) . It is, therefore, of utmost importance in determining the question to consider (i) the surrounding circumstances, (ii) the position of the parties and their relations to one another, (iii) the motives which could govern their actions, (iv) their subsequent conduct, and (v) possession of the title deed. On a consideration of the surrounding circumstances and the probable cause likely to have operated on the minds of the parties to bring about the transaction, the conclusion is irresistible that the plaintiff purchased the property in the name of the defendant No. 1 Kishanlal, he being the adopted son of her husband Gordhan with the object that it should belong to him. There was apparently no reason for her to purchase the property benami in his name. 14. For all these reason, the appeal must fail and is hereby dismissed with costs.Appeal dismissed. *******