JUDGMENT Kaushal Kishore, M. - This is a plaintiff's second appeal against the judgment and decree dated August 31, 1977 by the learned Additional Commissioner, Faizabad Division, Faizabad, dismissing the first appeal against the judgment and decree dated December 9, 1975 by the learned trial court in a case under Section 229-B 209 of the U.P. Zamindari Abolition and Land Reforms Act. 2. I have heard the learned counsel for the parties and have also perused the record. 3. During the pendency of this appeal, an application for substitution of heirs of Bansraj respondent number 2 was filed along with an application for condonation of delay and the explanation being satisfactory, the substitution application is allowed. 4. Both the courts below have dismissed the suit after holding the adoption of Jogendra as good and rejected the claim of the plaintiffs that they were co-tenants along with the other branch of the descendants of Ram Manorath on the share of third brother Bhagwati deceased heir less. The dispute relates only to the share of Bhagwati which according to the respondents had devolved on him on the basis of adoption by Bhagwati. The question to be decided in this appeal is whether the adoption was good or invalid. Bhagwati's real brother was Ram Manorath and Paras Nath is great grand son of Ram Manorath. Jogendra is the second son of Paras Nath and it is alleged that vide the alleged adoption deed dated December 26, 1967, Jogendra alias Manager was adopted by Bhagwati. The learned trial court held that the ceremony of giving and taking of the child in adoption was duly held and the adoption deed is valid and dismissed the suit. The learned Additional Commissioner relied upon the presumption of the correctness of the adoption-deed under Section 16 of the Hindu Adoption and Maintenance Act and dismissed the appeal. 5. The learned counsel for the appellant has argued that the courts below have given no finding about the validity of the adoption-deed and since it is a question of law, the appeal is maintainable. The learned counsel argued that according to the school leaving certificate, Jogendra was born on August 31, 1958 and got admission on October 5, 1964 when about 6 years old. The learned counsel argued that according to the school leaving certificate, Jogendra was born on August 31, 1958 and got admission on October 5, 1964 when about 6 years old. According to the adoption-deed which is registered, the adoption ceremony was held on December 5, 1967 when the boy was over 9 years old but the Godnama gives the age seven years. The learned counsel has pointed out the statement of Paras Nath when he says that at the time of adoption, Jogendra was not a student and was admitted in the school after adoption and argued that this showed that there had been an adoption before October 5, 1964 with the result that the adoption on December 5, 1967 was a second adoption, prohibited under Section 10(2) of the Hindu Adoption and Maintenance Act. He has further argued that for want of any issue on marriage, he could not ask any question on the point. The counsel further argued that the conduct of Jogendra and Paras Nath after adoption pointed out that the adoption was fictitious and was not genuine and that there had been no actual transfer of the child. The learned counsel for the respondent had argued that the adoptive father had died after about 4 years of the adoption and so Jogendra went to his natural father and lived there. The counsel has cited a ruling reported in 1974(2) SCC 559 in which it was held that after coming into force the Hindu Adoption and Maintenance Act, the customary law of adoption becomes ineffective and the ceremony of giving and taking is sufficient to prove adoption. 6. The learned counsel for the appellant has cited ruling reported in A.I.R. 1964 S.C. 134 in which it was held that it is well settled that a person who seeks to displace the natural succession of property by alleging adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. The Hon'ble Supreme Court has held on the basis of the conduct of the parties subsequent to the alleged adoption in the reported case that there had been no adoption, observing that in this state of evidence, it is not possible to say that there had been consistent pattern of conduct from which a court could drawn the inference that the adoption must have taken place'. The learned counsel further cited rulings reported in AIR 1966 Calcutta 13 and A.I.R. 1957 Orissa 191 in support of his argument that mere registration of the adoption-deed is not conclusive to proof the fact of adoption or its validity. It was held that the adoption if challenged must be established by oral testimony of the persons who were present at the ceremony deposing to the effect that all formalities of giving and taking of the boy in a lawful manner had taken place and that the fact of actual adoption must be proved by cogent evidence. It was further held that where there are witnesses on either side on the question of performance of ceremony of adoption, the conduct of the parties after the date of the alleged adoption may tilt the scale one way or the other. This established the importance of the conduct of the concerned parties after adoption. 7. The learned counsel further argued that Badri Prasad a marginal witness of the adoption-deed had deposed that Jogendra was not adopted by Bhagwati and that the adoption-deed was a fraudulent substitution in place of a sale-deed. Badri Prasad subsequently died and the learned counsel argued that the copy of the statement was admissible in evidence under Section 33 of the Evidence Act and the learned Additional Commissioner wrongly discarded it as inadmissible. 8. As regards the point of second adoption, no specific necessary details of adopting father etc. of any other adoption have come from any side and this must, therefore, be deemed a mere conjecture based on incongruous portion of the statement by Paras Nath. 9. As regards the explanation of Jogendra of going back to his natural father to live, the learned counsel for the appellant has pointed out Section 7, 8(5) and 11 of the Hindu Minority and Guardianship Act to reveal the correct legal position. According to Section 7 of the Act, the natural guardianship of an adopted son who is a minor passes on adoption to the adoptive father and after him to the adoptive mother. According to Section 8(5) of the Act, any person for acting as guardian must obtain permission of the court for acting as guardian. According to Section 7 of the Act, the natural guardianship of an adopted son who is a minor passes on adoption to the adoptive father and after him to the adoptive mother. According to Section 8(5) of the Act, any person for acting as guardian must obtain permission of the court for acting as guardian. There is no doubt that the former natural father Paras Nath was no longer natural guardian of Jogendra and in every transaction he had to obtain court's permission to Act as guardian of Jogendra. Section 11 specifically provides that after the commencement of this Act, no person shall be entitled to dispose of or deal with, the property of a Hindu minor merely on the ground of his or her being the defacto guardian of the minor. There is evidence that Paras Nath had borne the expenses of mutation case and the present case, that he kept the boy Jogendra under his guardianship after Bhagwati died and that he acted as guardian cultivating the land received in adoption by Jogendra from Bhagwati, according to his own version. Paras Nath even stated that he was not certain whether Jogendra still had any share in his property including the cultivated land owned by him. This whole conduct casts a grave doubt on the validity of adoption for this whole conduct is inconsistent with the requirements of adoption. It is specifically laid down under Section 11(6) of the Act that the child shall actually be given and taken in adoption, with intent to transfer the child from the family of its birth to the family of its adoption. Therefore, mere taking and giving of the child in transfer is not sufficient, it must be backed by intention to transfer from his previous family to the family of adoptive father. The circumstances demand that this intention in the background of the conduct must be closely examined. 10. No doubt, various factors mentioned above show that after Bhagwati died, it was very clear that the intention was not there to transfer Jogendra from his original family. Whether this intention was there in 1967 or not can further be judged from the evidence available. There is a serious discrepancy in insistently changing the age of the boy. The courts below have relied on the school certificate and, no doubt, this is a valuable piece of evidence. Whether this intention was there in 1967 or not can further be judged from the evidence available. There is a serious discrepancy in insistently changing the age of the boy. The courts below have relied on the school certificate and, no doubt, this is a valuable piece of evidence. If Jogendra was seven years in December, 1967 according to the adoption-deed he would be less than four years in October, 1964 and it is highly improbable in a village school that Jogendra could have got admission. His date of birth August 31, 1958 is more consistent and likely. The contradictory oral evidence and discrepancies in age, non-production of the writer of the deed, all indicate to the natural discrepancies arrived at when something is not genuine. The only explanation is that no real ceremony had been there and that deed was written as a cover-up support for a mis-conceived fiction. The oral evidence does not give anything about living of Jogendra with his adoptive father for four years. There is nothing in the oral evidence to which of the village people were present in the ceremony. It is not indicated even if Bansraj Ram Surat or Munna were present at the ceremony. While the formal ceremony of adoption establishes the intention, it also casts a duty on the concerned as to follow-up action and if the adoption is not acted in its essence, such inconsistent part conduct only leads to one conclusion that the ceremony or registration or other formalities were only a disguise formal intention. Odds are much against a formal adoption on December 5, 1967. A doubt is strongly cast to the giving and taking ceremony in adoption, either this ceremony is fraudulent or is non-existent. In these circumstances, the adoption-deed is rendered a mere grab of concealed fraudulent intention. In case the adoptive father did not cherish such fraudulent intention, then certainly he was beguiled and misled in adoption by donor father who must have had the fraudulent intention from the very beginning and even with this one-side wrong intention, the fact of fraud was achieved. 11. The above discussion brings out that the courts below have failed to give a finding about the validity or otherwise of the adoption after duly considering the requirements of Section 11(6) of the Hindu Adoption and Maintenance Act. 11. The above discussion brings out that the courts below have failed to give a finding about the validity or otherwise of the adoption after duly considering the requirements of Section 11(6) of the Hindu Adoption and Maintenance Act. The courts below either held the ceremony of actual giving and taking to have existed or relying on the registered adoption-deed presumed the validity of adoption under Section 16 of the Act but failed to appreciate that the intention to transfer the child from the family of its birth to the family of the adoption was a very important factor and also had to be proved to establish a good adoption and the lack of this intention indeed amounted to dis-proving the presumption under Sec. 16 of the Act. For this reason, I am bound to hold the findings of the two courts below on the question of validity of adoption as defective and find that the judgments and decree of the two courts below cannot be upheld. In the result, this appeal succeeds and the suit has to be decreed. 12. Accordingly, this appeal is allowed, the judgments and decrees by the two courts below dated August 21, 1977 and December 9, 1975 are hereby set aside and the suit stands decreed with costs through out.