JUDGMENT 1. A manual Bull Dozzer and not a sophisticated computer of precedents and customs, has resulted in the hasty turn out of this decision. A Bar of section 100 Civil Procedure Code is its bedrock and not any authoritative painstaking scholary research, as the learned members of the Bar have also barred any indepth research on "CUSTOM" amongst Agarwal, Vaishnwaits on 'age' of adopted boy. 2. The resultant drop is this decision which should not be treated as any authoritative pronouncement on 'Custom' but to be limited to 'YOKES' and 'JAIL' fetters of section 100 Civil Procedure Code. The mounting arrears reaching half a lakh now from 3,000 of 1951 and pendency of year 1969 civil appeals yet has generated 'Clearance and Disposal' Mania which is bound to be at the cost of quality. All this constitute triology of Jail of 100 Civil Procedure Code with Bar's bar of indepth study and research. 3. Judges disposal mania under duress and distress of an Ass with record load of fifty thousand pending Dockets, has frustrated into this "on the spot" judgment, like "Spot News". 4. These two appeal Nos. 143/74 and 369/79, though arising fram different suits in different judgments, are bound to swim or sink together depending upon the adjudication whether the alleged adoption of Radhey Shyam Agrawal to Kaluram was valid. 5. In order to appreciate the controversy, it would be necessary to mention the facts giving rise to the first civil suit No. 146/70. Radhey Shyam Agrawal filed the suit alleging that he was adopted son of Kaluram as per customs prevalent in Agrawal Community. He was 30-32 years of age in 1958 at the time of adoption. The custom allowed it. After adoption, he resided with Kaluram and his marriage was performed by Kaluram. 6. There were some differences in the life time of Kaluram between them. 7. The building described in para 3 of the plaint was ancestral property in the hands of Kaluram which he could not have gifted to Gomati Devi. Since the gift was invalid, Gomati Devi could not have mortgaged this property to Radhey Shyam Brahmin who obtained the decree for sale of the property and put his decree to execution and took steps for auction of the said property. Later sale deed was executed in between Gomati Devi and Radhey Shyam Brahmin. 8. Since the gift was invalid, Gomati Devi could not have mortgaged this property to Radhey Shyam Brahmin who obtained the decree for sale of the property and put his decree to execution and took steps for auction of the said property. Later sale deed was executed in between Gomati Devi and Radhey Shyam Brahmin. 8. The prayer was made that the gift deed dated 22.1.1960 and the sale deed 7.11.1964 be declared illegal and void and ineffective against the plaintiff. 9. Kaluram defendant admitted the plaint allegations, but after admitting adoption and the fact that it was ancestral property, challenged the right of the sun to challenge his actions. Other defendants denied adoption and custom by them. 10. Issues were framed and evidence was recorded. 11. Both the lower courts have held that there was custom of adoption amongst Agrawals where age of the boy was not material and that Radhey Shyam was adopted to Kaluram. Both the courts have found the plaintiff's allegations to be correct and proved. It has been found that Kaluram adopted Radhey Shyam Agrawal, "Dattak Home" was performed and coconuts were distriouted and a feast was held. 12. The only serious objection pressed before me by learned counsel for the appellant is regarding the validity of adoption on the ground that Radhey Shyam was more than 15 years of age at the time of adoption and there was no custom amongst Agrawals to permit adoption at this age of 32. 13. Both the lower courts have held that the plaintiff's evidence proves that Moolchand was adopted by Jaganji Mehra and Damodarji was adopted by Suraji. In all four instances of adoption of more than 15 years of age boys have been held to be proved. 14. The first appellate court has discussed that there series of decisions wherein it has been held that Agrawals known as Marwadis of Rajasthan, either in Rajasthan or wherever they are living in India, follow the customs of Jainism in the matter of adoption and there is no bar of any age or adoption of a married boy, as the adoption is trend as a secular affair and not a religious or spiritual one. 15. 15. I expected from both the learned counsel to enlighten and assist me by citations from the authoritative treatises of Manu Smriti, Yajnavalkya, Teekas and Datlak Meemansas, Brihaspati, and Kotivan in respect of the principles of adoption. I also expected that they would assist me from some standard books showing the origin and customs of adoption amongst Agrawals in Rajasthan, and specially those Agrawals who are aon-Jain and who are alleged to be much more conservative than the Jain Agrawals as they follow the Brahminic religion and spiritual philosophy, as against other philosophy. Unfortunately, both the learned counsel have choosen not to do any research in this particular branch of personal law, and with arrears & pendency of appeals of 1969 yet I am compelled to avoid luxurious research study of my own by research from Kane's Dharamshastras or tracing history of Agrawals from the great Agarsen. 16. Be that as it may, whatever scanty material is available has been discussed by the late Lala Chiranjilal Agrawal, a Senior Advocate of this Court, as back as in 1937, when he was practising in the Chief Court at Jaipur under the caption 'Adoption Amongst Marwari Agrawals' AIR 1937 (Journal 60). 17. It is true that the article as such cannot be a precedent but the precedents mentioned in it certainly can be looked into and the deductions drawn by late Shri Agrawal can be examined for their correctness and validity. 18. One of the deductions drawn by the said Shri Agrawal is that Marwadis Agrawals on account of their business have developed indifftrence towards Shastric texts, and therefore, even the Privy Council has gone so far as to term them as Jains. It would be useful to quote hereunder what their Lord- ships of the Privy Council observed in (1) Dhanraj Joharmal v. Sonibai, AIR 1925 PC 118 : "These Agrawals as has been pointed out in 10 Bombay High Court Reports 241 generally adhere to Jainism and repudiate the Brahminical doctrines relating to obsequial ceremonies. the performance of Shradh, the offering of oblations for the salvation of the soul of the deceased, nor do they believe that a son either by birth or adoption confers spiritual benefit on the father." 19. the performance of Shradh, the offering of oblations for the salvation of the soul of the deceased, nor do they believe that a son either by birth or adoption confers spiritual benefit on the father." 19. Late Shri Agrawal, then commented on the obove judgment and said that Jain Agrawals are in minority and other Agrawals do perform Shradh and offer oblations for the salvation of the soul of the deceased. According to late Shri Agrawal, most of the Agrawals are followers of Brahminic faith and are generally styled as Vaishnavas, while the others who follow Jainism are called Saraogi Agrawals. 20. In (2) Manoharlal v. Banarsidas, AIR 1929 All 495 , their Lordships observed as under: "It is to be borne in mind that the Jains are mostly engaged as traders and shop keepers. They are not land-owners, and therefore, we cannot expect to find any records of adoption such as are to be met within conveyances and transfers of land or in khewats and other land records......... Proof of instances is the only class of proof which they could ordinarily adduce, and this is the proof which we are asked to accept." 21. Again in (3) Ashrafi Kunwar v. Roop Chand, AIR 1930 All. 197 , it was held that amongst Agrawal Jains, adoption is purely secular. Privy Council confirmed this decision. 22. It is true that all the above cases were of Agrawal Jains. 23. The non-Jain Agrawals case was of an orphan and the Chief Court in (4) Chiman Lal v. Hari Chand, AIR 1940 Cal. 878 observed as under; "Upon an examination of the evidence in the case we cannot hold that these Agrawals strictly follow Hindu Law. Not only in other matters are they lax, but also in the matter of adoption." 24. Another case of Agrawal Vaishnavas is (1) Dhanraj v. Sonibai 1925 PC 118 . It was in this case that their Lordships of Privy Council observed that Agrawal Vaishnavas generally follow Jainism. 25. Late Shri Agrawal commenting on the above judgment of the Privy Council, observed that their Lordships' opinion was sound and reasonable as Agrawal Jains and Vaishnavas are more akin to one another than Agrawal Jain and Oswal belonging to different communities. 26. The emphasis was on the Agrawals being business-men and traders, who termed adoption as secular instead of rather religious one. 27. 26. The emphasis was on the Agrawals being business-men and traders, who termed adoption as secular instead of rather religious one. 27. In Dhanraj Joharmal v. Sonibai (supra), their Lordships of the Privy Council held that tha qualifying age for adoption extends to 32 years meaning thereby that amongst Agrawals, age and marriage are no bar to adoption. 28. The Calcutta High Court in case of Maheshwaries, (5) Mathuradas Karnani v. Shrikishan Karnani, AIR 1918 Cal. 98 held that adoption is not limited to children of tender age and can be of a person of full age irrespective of marriage. 29. Late Shri Agrawal commenting on the above judgment opined that there is practically no difference between Marwadis Agrawal and Marwari Maheshwaris. 30. On the above, deduction was drawn that there is no bar of marriage or age for the purpose of adoption amongst Agrawals and this applies to Agrawal Vaishnavas also and not to Agrawal Jains only. 31. I have got my own doubt about the above proposition, because basically as admitted by late Shri Agarwal in this article (supra), Agrawal Vaishnavas follow Brahminic doctrine in matter of religion as they are Vaishnavas except those who are Agrawal Jains. It appears that their Lordships of the Privy Council as well as the cases which were examined by them did not provide an in-depth study of customs amongst Agrawals who are Vaishnava Agrawals. 32. However, as I have stated at the beginning that the learned counsel have not provided any more enlightenment by any in-depth study of the text or Shastras or historical treatise of origin and custom amongst Agrawals which would have provided a rich data. 33. In view of the above handicap, and the fact that the lower courts on consideration of evidence lave come to the conclusion that there was a custom amongst Agrawals to which caste Kaluram and Radhey Shyam belong to adopt a person irrespective of age and marriage, I would not venture to disbelieve he evidence accepted by the two courts, in view of bar of section 100 Civil Procedure Code. 34. 34. Whatever judicial precedents have been referred to by late Shri C.L. Agrawal in his article (supra), only support the deductions which have been made by him & further, which the lower courts have adopted on the "basis of evidence in the case.The defendant Radhey Shyam did not make any serious attempt either at the level of trial court or in the first appellate court or even now, to provide the data and material in the form of text books or other precedents to come to a different conclusion. Whereas the Privy Council confined themselves to the data on the record of that case and the various other judgments referred above, did only generalisation: the specific issue of custom amongst Agrawal Vaishnavas against adoption only of a boy of tender age and permitting adoption of person of any age, may be adjudicated in a proper perspective in some other case. 35. The fetters of section 100, Civil Procedure Code and the scanty material or rather absence of any material to show anything to the contrary than whatever has been placed by the plaintiff, have placed me in a position where I have to accept the findings of both lower courts but with a word of caution that this matter requires much more detailed examination in a proper case, and the issue is left open. 36. The question whether the property is ancestral one, is again a question of fact and is binding in second appeal u/s 100, Civil Procedure Code. 37. The result of the above discussion is that Appeal No. 143/74 cannot succeed and is dismissed. 38. In so far as appeal No. 369/ 79 is concerned, as a legal and logical corralary of the above decision, it must succeed. The suit No. 194/76 - for eviction of Radhey Shyam Agrawal was based on the fact that there was a rent-deed in pursuance of the gift and subsequent will as mentioned above. Since it has been held that the adoption of Radhey Shyam was valid and therefore, the subsequent gift by his father Kaluram to Gomati Devi and further mortgage by Smt. Gomati Devi to Radhey Shyam followed by a sale deed, were all invalid, inoperative, illegal, therefore, the relationship of Radhey Shyam Agrawal and Radhey Shyam Brahmin cannot be that of a tenant. Radhey Shyam Agrawal has become full owner. 39. Radhey Shyam Agrawal has become full owner. 39. As a matter of fact, when the earlier suit was pending, the suit No. 194/76 should have been stayed by the trial court. 40. Be that as it may, now its fate is sealed. 41. The result of the above discussion is that the appeal No. 369/79 succeeds and judgments of both the courts below in appeal No. 118/79 and suit No. 194/76 are set aside. The suit is dismissed. 42. Both the parties would bear their own cost in all the litigation in these two suits throughout in view of the peculiar circumstances of these two cases.Appeal No, 143/1974 Dismissed. Appeal No. 369/ 1979 Allowed. *******