JUDGMENT : ( 1. ) THIS appeal by the defendant No. 1 is directed against the judgment and decree dated 7-12-1967 passed by the first Additional district Judge, Dhar in Civil First Appeal No. 100-A of 1966 arising out of 4he Judgment and decree dated 31-3-64 passed by the Civil Judge Class I, dhar, in Civil Suit No. 2 of 1963. ( 2. ) DECEASED Babulal was the husband of defendant No. 2 Lilabai, he was elder brother of defendant No 1 Tilokchand. Plaintiff Bhagirath obtained a decree against defendant No. 2 Lilabai for Rs. S870 in Civil Suit no. 11 of 1960 of the Court of Civil Judge Class I, Dhar. In execution of the aforesaid decree, agricultural land bearing survey No. 321 area 57 3/4 big has situate in village Labrawada was attached. Defendant No. 1 Tilokchand preferred an objection under Order 21, rule 58 of the Code of Civil Procedure alleging that land measuring 18| and 4 biswas out of the attached land was not liable to be attached and sold in execution of the decree against Lilabai. This objection was allowed and the land objected to was released from attachment. Thereafter the plaintiff filed the present suit under Order 21, rule 63 of the Code of Civil Procedure. His case was that after the death of Babulal, the husband of Lilabai, in the year 1950-51, Lilabai defendant no. 2 inherited the said land as the heir of Babulal and that the claim of tilokchand that he was entitled to the said land as heir of Babulal being his adopted son was not tenable. The plaintiff averred that Tilokchand was not adopted by Lilabai as alleged by him and further that the alleged adoption was invalid. According to the plaintiff adoption of a brother to a brother was prohibited by Hindu Law. The plaintiff claimed a decree that the land objected to was liable to attachment and sale in execution of his decree against Lilabai. ( 3. ) THE defendant No. 1 Tilokchand contested the suit on the ground that he was the adopted son of Babulal having been adopted by Lilabai after the death of Babulal and as such he was entitled to the lands left behind by Babulal as his heir. ( 3. ) THE defendant No. 1 Tilokchand contested the suit on the ground that he was the adopted son of Babulal having been adopted by Lilabai after the death of Babulal and as such he was entitled to the lands left behind by Babulal as his heir. He denied that the adoption was invalid as alleged by the plaintiff and further contended that there was a custom in the community of the defendant No. 1 which permitted adoption of a brother. Lilabai defendant No. 2 remained ex-parte. The trial Court held that the adoption was proved and that it was valid. The suit was, therefore, dismissed. On appeal by the plaintiff the appellate Court has held that adoption of Tilokchand to Babulal by Lilabai was not proved and that such an adoption was not valid. The appellate Court, therefore, allowed the appeal, set aside the judgment and decree of the trial Court and has passed a decree in favour of the plaintiff that the lands objected were liable to attachment and sale in execution of the plaintiffs decree against defendant No. 2 lilabai. ( 4. ) SHRI J. W. Mahajan, learned counsel for the appellant contended that the finding of fact of the lower appellate Court that the adoption of tilokchand to Babulal by Lilabai was not proved is vitiated on account of misreading of material evidence by the Court. He further submitted that the finding of the Court, that the adoption of Tilokchand was invalid because he was the real brother of Babulal and such an adoption was violative of the rule that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, is contrary to law. ( 5. ) SHRI G. M. Chafekar, learned counsel for the respondent has supported the decree of the lower Court. ( 6. ) AS regards the first point the lower Court has found as a fact that the adoption of Tilok Chand by Lilabai to Babulal has not been proved. This being a finding of fact is binding on this Court. However, Shri Mahajan, learned counsel for the appellant has submitted that this finding is vitiated because material evidence has been misread by the appellate Court. This being a finding of fact is binding on this Court. However, Shri Mahajan, learned counsel for the appellant has submitted that this finding is vitiated because material evidence has been misread by the appellate Court. The lower Court has found that the witnesses examined by the appellant has failed to prove the essential ceremony of giving and taking. The witnesses examined to prove the factum of adoption were Mangilal (D. W. 3), Shankar (D. W. 5) and Narsingh (D. W. 6 ). Shri Mahajan, who has read the evidence of these witnesses before me was unable to point out that their statements have been misread by the lower appellate Court. These witnesses have not deposed that giving and taking ceremony was performed at the time of the alleged adoption. Then Shri Mahajan submitted that the evidence has been misappreciated by the lower Court. But this cannot be a ground for interference in second appeal. How-so-ever grossly erroneous the finding of fact may be it is binding on this Court in second appeal. It has come on record that a sum of Rs. 21 was paid as an offering to the temple on the occasion of adoption and an entry was made in the register to that effect. This entry in the register has not been produced. It has also come in the evidence that a deed of adoption was executed; but that has also not been proved. The appellate Court has considered the failure of the appellant to produce material documentary evidence that was available and on appreciation of the oral evidence produced in the case has come to the conclusion that the alleged adoption of Tilokchand by Lilabai to Babulal has not been proved. This finding of fact arrived at by the Court below on appreciation of evidence produced in the case is binding on this Court and no ground has been made out which may vitiate the finding. ( 7. ) IT was then submitted by Shri Mahajan that this being an old adoption the same should be held as proved although evidence of giving and taking was not forthcoming. He placed reliance upon the decision in l. Debiprasad etc. v. Smt. Tribeni Devi and others, AIR 1970 S C 1286. The facts of this case were quite different. ) IT was then submitted by Shri Mahajan that this being an old adoption the same should be held as proved although evidence of giving and taking was not forthcoming. He placed reliance upon the decision in l. Debiprasad etc. v. Smt. Tribeni Devi and others, AIR 1970 S C 1286. The facts of this case were quite different. In the present case the adoption is alleged to have taken place in the year 1950-51 and evidence was available and has been given to prove the adoption. Further there is no satisfactory evidence that tilokchand was treated as the adopted son of Babulal. This adoption has not been found proved on appreciation of evidence adduced in the case. Thus, there is no merit in this submission of the appellant. ( 8. ) AS regards the invalidity of the adoption learned counsel for the appellant submitted that the rule, that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state applies only to daughters son, sisters son and mothers sisters son and that the rule cannot be extended to other relations. In support of this submission shri Mahajan placed reliance upon the decisions reported in Shripad Datta traya Kamat v. Vithal Vasudevsmet Parker and others, A I R 1925 Bom. 399. and Abhiraj Kuer v. Debendra Singh, A I R 1962 S C 351. and Goswami Shree Vallabhalalji v. Goswamini Shree Maha-laxmi Bahuji Maharaj and another, A I R 1962 S C 356. The decision in Shripad Dattatraya kamat v. Vithal Vasudevsmet Parker and others (supra) no doubt supports the appellant in which it has been held that adoption of a brother is not invalid. However, in that case reliance was placed upon Jai Singh Pal Singh v. Bijai pal Singh, I L R 27 All. 417. Ramkrishna Gopal Joshi v. Chimnaji Vyankatesh, 21 Indian Cases 34. Puttulal and others v Parbati Kunwar and another, 42 Indian Appeals 155. Yamnaya v. Laxman Bhimrao, I L R 36 Bom. 533. Gajanan balkrishna v. Kashinath Narayan, I L R 39 Bom. 410. and Mallappa Paroppa v. Gangava, I L R 43 Bom. 209. but in none of these cases the adoption of a brother was involved. Puttulal and others v Parbati Kunwar and another, 42 Indian Appeals 155. Yamnaya v. Laxman Bhimrao, I L R 36 Bom. 533. Gajanan balkrishna v. Kashinath Narayan, I L R 39 Bom. 410. and Mallappa Paroppa v. Gangava, I L R 43 Bom. 209. but in none of these cases the adoption of a brother was involved. In Jai Singh Pal singh v. Bijai Pal Singh (supra) the adoption was of widows brothers grand son; in Ramkrishna Copal Joshi v. Chimnaji Vyankatesh (supra) the adoption was of fathers sisters son, in Puttulal and others v. Parbati Kunwar and another, the adoption was of brothers son, in Yamnaya v. Laxman Bhimrao the adoption was of mothers brothers son, in Gajanan Balkrishna v. Kashi-nath Narayan the adoption was of the half brother and in Mallappa Parappa v. Gangaya the adoption was of fathers first cousion. It is thus clear that in none of the cases on which reliance was placed by the Bombay High court in holding the validity of adoption of a brother in Shripad Dattatraya kamat v Vasudevsmet Parker and another (supra) the adoption of a brother was involved. I am unable to persuade myself to agree with the view taken in Shripad Dattatraya Kamat v. Vasudevsmet Parker and another. It is difficult to appreciate that if the prohibitory rule applies to mothers sisters son how it will not apply to a brother who is mothers son. Mothers son (brother) is nearer in relationship to mothers sisters son. ( 9. ) MAYNE in his treatise of Hindu Law and Usage (eleventh edition)in para 175 has discussed the law as follows: "there is another rule that no one can be adopted whose mother in her maiden state the adopter could not have legally married". After discussing the controversy about this rule at the end of the para he has observed as follows : "in Raghavendra Rao v. Jayarama Rao the Court treated it as the settled law, except where there is usage to the contrary, that the natural mother of the boy to be adopted, should be a person who, in her maiden state, might lawfully have been married to the man for whom the adoption is made. A judgment of the Judicial Committee reversing a Full bench of the Allahabad High Court has finally established the invalidity of adoptions contravening this rule in all cases to which the general hindu law applies in the absence of a custom to the contrary. On the same ground, it is unlawful to adopt a brother, a step-brother or an uncle, whether paternal or maternal. " ( 10. ) THE rule that there can be no legal adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, is stated to have been accepted by almost all the High Courts except the Bombay High Court in abhiraj Kuer v. Debendra Singh (supra ). Their Lordships of the Supreme court have assumed the correctness of this rule in the above case but held the adoption valid on the ground that a marriage with wifes sisters daughter was not invalid. Now it cannot be questioned that a marriage between babulal and his mother whose son Tilokchand is said to have been adopted for him is impossible. Such a marriage is unthinkable. In my opinion a brother would fall within the purview of the said rule and adoption of a brother in the absence of a custom to the contrary is invalid. The custom was pleaded but the lower Court on appreciation of evidence has found that no such custom has been established. I have gone through the evidence about the custom alleged by the appellant. In my opinion the finding of the learned Judge that the alleged custom has not been established is unassailable. ( 11. ) AS a result of the foregoing discussion there is no substance in this appeal which is dismissed with costs. Counsels fee according to schedule if certified. Appeal dismissed.