Judgment : S. P. Srivastava, J. 1. THIS Is the plaintiffs second appeal directed against the judgment and decree passed by the first appellate court where under allowing the appeal and setting aside the decree passed by the trial court, the suit filed by the appellant had been dismissed. 2. I have heard the learned counsel for the plaintiff-appellant as well as the learned counsel representing the contesting respondent and have carefully perused the record. The facts, shorn of details and necessary for the disposal of this case lie in a narrow compass. The plaintiff had filed a suit claiming a decree for declaration to the effect that the deed of adoption dated 21.1.76 in favour of the defendant No. 2 was invalid. The plaintiff had alleged, inter alia, that he had no male issue and his two daughters were already married and resided in the house of their father-in-law. He was not keeping good health and In December, 1974 during his illness he had called his son-in-law Ram Singh, the defendant No. 1 to accompany him to Rai Bareli for his treatment. Ram Singh accompanied the plaintiff and visited Rai Bareli where the plaintiff was got medically examined in the Sadar Hospital there. His treatment continued for some time and the expenses in that regard were paid by the plaintiff. It was further asserted that the his son-in-law the defendant No. 1 who is the father of the minor defendant No. 2 had planned to take advantage of the advanced age of the plaintiff and his Illness and at a time when the plaintiff was quite 111 and was not able to understand the correct nature of things in view of his Unbalanced mental State, the defendant No. 1 instead of taking the plaintiff to the Sadar Hospital took him to the civil courts where while he was unconscious and could not understand anything, got his thumb-impressions on an adoption deed without explaining the contents of the same to him and got it registered. The plaintiff claimed that he never adopted the defendant No. 2 as a son nor any ceremony in that regard was performed, it was clearly Indicated that there was no giving and taking of the defendant No. 2 and the alleged transaction was fictitious. The plaintiff claimed that he never adopted the defendant No. 2 as a son nor any ceremony in that regard was performed, it was clearly Indicated that there was no giving and taking of the defendant No. 2 and the alleged transaction was fictitious. The plaintiff further claimed that it was only in order to usurp the property of the plaintiff that the defendant No. 1 had got the adoption deed prepared. 3. THE aforesaid suit was contested by the defendants denying the plaint allegations. It was asserted that the eldest daughter of the plaintiff was married with defendant No. 1 and he had three sons. THE defendant No. 1 claimed that the plaintiff had been persuading the answering defendant to give one of his sons In adoption to him and the defendant No. 2 was taken in an adoption by the plaintiff after performing all the requisite ceremonies. THE adoption deed was claimed to be genuine and duly executed by the plaintiff when he was in his full senses. 4. THE plaintiff had examined himself as PW-1 disclosing his age to be 60-70 years and Chandrabhan Singh as PW-2. Defendant No. 1 had examined himself as DW-1 and Dr. S. K. Mallik as DW-2 as well as Sri Parmanand as DW-3, and Tej Narain as DW-4. A certified copy of the adoption deed executed and registered on 21.1.75 Is also on the record which contained a recital showing that the alleged adoption had taken place on 20.1.75. The trial court noticed that the defendant had not produced the original adoption deed, and the presumption available under Section 16 of the Hindu Adoptions and Maintenance Act which was only rebuttable one could not be raised. After careful consideration of the evidence and the materials on the record, the trial court came to the conclusion that no actual adoption had taken place as claimed by the defendant. The trial court noticed that in the written statement, the defendant No. 1 had asserted that the actual adoption had taken place in the month of January but in his deposition, he had stated that it was after a month of actual adoption that the adoption deed had been executed. The trial court noticed that in the written statement, the defendant No. 1 had asserted that the actual adoption had taken place in the month of January but in his deposition, he had stated that it was after a month of actual adoption that the adoption deed had been executed. This assertion stood belied from the fact that the adoption deed in question was itself executed on 21.1.75 and contained a recital therein that the actual adoption had taken place just a day before, la, 20.1.75. Considering the circumstances brought on record, the trial court recording a finding that no actual giving and taking of the defendant No. 2 had taken place so as to complete an adoption as contemplated under the law, and the relief claimed by the plaintiff could not be denied and accordingly, it was declared that the adoption deed dated 21.1.75 in favour of the defendant No. 2 was invalid. 5. BEFORE the first appellate court, it was urged that the presumption could be raised under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 in favour of the defendant. The provision contained in this Section makes available a presumption in regard to the adoption having been made in compliance with the provisions of the Act where, a document registered under any law for the time being in force is produced before any court purporting to record an adoption made and assigned by the person giving and the person taking the child in adoption. This presumption is, however, rebuttable. Admittedly, in the present case, the original registered adoption deed had not been brought on record by the defendants. The first appellate court was, however, of the view that even if the presumption as warranted by Section 16 of the Hindu Adoptions and Maintenance Act was not available to the defendant, that could not make any difference as the plaintiff who had come up with the case that he had actually not executed the document, that fact had to be proved and in case the plaintiff did not succeed in establishing his case as set up in the plaint, he could not be held entitled to the declaration as claimed. The first appellate court observed that the ailment of the plaintiff was not such which could make him unconscious or to result in the losing of control over his mind and, therefore, his assertion that the thumb-mark was obtained on the deed of adoption when he was unconscious was not liable to be accepted. Placing reliance on one of the two attesting witnesses of the deed of adoption, the first appellate court came to the conclusion that the deed had been properly executed and the suit was liable to be dismissed. 6. IT may be noticed that the first appellate court had reversed the decree passed by the trial court merely on the ground that the defendants had succeeded in proving the due execution of the deed of adoption. But this, by itself, could not be deemed to be enough as in the absence of the production of the registered deed of adoption in court, the defendants could not get the benefit of the presumption available in regard to the compliance of the requirements of a valid adoption superscribed under the Hindu Adoptions and the Maintenance Act One of the main requirements stipulated under the provisions of the Act as contained in Section 11 (vi) thereof is to the effect that the child to be adopted must be actually given and taken in adoption by the parents or the guardians concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an absconded child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption. The trial court had recorded a clear cut finding to the effect that the actual giving and taking of the child as required under Section 11 (vi) of the Hindu Adoptions and Maintenance Act had not been established. In the absence of the availability of the presumption envisaged under Section 16 of the Act this requirement could not have been assumed to have been complied with. The finding of the trial court to the effect that the defendant had failed to prove the giving and taking of the child to be taken in adoption as provided for under Section 11 of the Act has not been disturbed by the first appellate court. The finding of the trial court to the effect that the defendant had failed to prove the giving and taking of the child to be taken in adoption as provided for under Section 11 of the Act has not been disturbed by the first appellate court. The said court has not even noticed that the observations made by the trial court showing the discrepancy In the assertions made In Paras 14 and 15 of the written statement filed by the defendant and In his deposition before the court wherein he had clearly stated that the adoption deed had been executed one month after the actual adoption were amply borne out from the record. The certified copy of the deed of adoption which was filed by the plaintiff contained a recital that the actual adoption had taken place on 20.1.75 and the endorsement of the Sub-Registrar concerned as appearing on the aforesaid deed of adoption Indicated that the deed had been presented for registration the very next day, i.e., 21.1.75 and registered on the same day. The finding of the trial court on the question In regard to the total absence of actual giving and, taking of the child to be taken In adoption could not be deemed to have been disturbed by the finding of the first appellate court that the deed had been duly executed. Even If the original deed of adoption had been produced before the court, it could only made available a rebuttable presumption about the compliance of the aforesaid condition but the failure of the defendant to produce the original deed of adoption coupled with his own statement totally belying the recital made in the deed of adoption itself about giving and taking amply supported the finding of the trial court on the question which could not In any manner be taken to have been disturbed by the finding relating to the execution of the deed as recorded by the first appellate court. In the aforesaid view of the matter, the non-compliance of the essential requirement provided for in Section 11 (vi) of the Act was more than sufficient for sustaining the decree of the trial court granted in favour of the plaintiff-respondent. 7. In the aforesaid view of the matter, the non-compliance of the essential requirement provided for in Section 11 (vi) of the Act was more than sufficient for sustaining the decree of the trial court granted in favour of the plaintiff-respondent. 7. LEARNED counsel for the appellant has strenuously contended that the adoption In question was clearly Invalid in law as the defendant was the son of the daughter of the plaintiff whom he could not have married had she been maiden. In support of this submission, learned counsel has heavily relied upon the decision of this Court In the case of Lata Babu Ram v. Smt. Kishan Dei rendered by a Division Bench in AIR 1963 All 509 . This Court In its aforesaid decision after taking into consideration the various decisions of various High Courts including those of Privy Council and Hon"ble Supreme Court as well as the texts of Dattak Chandrika and Dattak Mimansa had observed that there could be no manner of doubt that one whose mother the adopter could not marry could not be adopted as a son observing that if the words "Putra Chhaya Waham or bearing the reflection of a son have the same meaning which have been assigned to them In the Dattak Chandrika and Dattak Mimansa, then it was obvious that any one, even other than a daughter's son, a sister's son or the mother's sister's son whose mother the adopter could not marry could not be adopted. It was further observed that the expression "Putra Chhaya Waham" dealt with the qualification of the boy to be adopted. In other words, the boy to be adopted must have the reflection or resemblance of a son that Is one who could be like a son In his pre- adoption or natural state. This Court in the aforesaid case found that the adoptive father could not have married the mother of the boy who had been adopted and the adoption of the latter by the former was Invalid. 8. This Court in the aforesaid case found that the adoptive father could not have married the mother of the boy who had been adopted and the adoption of the latter by the former was Invalid. 8. THE learned counsel for the respondent, however, has urged that the aforesaid decision strongly relied upon by the learned counsel for the appellant related to an adoption during a period prior to the enforcement of the Hindu Adoptions and Maintenance Act, 1956 and taking Into consideration the Implications arising under the provisions of the aforesaid Act, for an adoption taking place after the enforcement of the aforesaid Act, the principles relied upon in the aforesaid decision of this Court have to be taken as having ceased to be effective and since under the aforesaid Act, there does not exist either expressly or even Impliedly any prohibition in regard to the adopting of even a daughter's, son by the adoptive father, such an adoption as in question In the present case cannot be held to be Invalid in law. THE learned counsel for the respondent has placed reliance in support of the above submission on the provisions contained in Section 4 of the Hindu Adoptions and Maintenance Act, 1966 which is to the following effect: "4. Overriding effect of Act-Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu Law of any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindu in so far as it is inconsistent with any of the provisions contained in this Act. It has been urged by the learned counsel for the respondent that as provided under Section 4 of the Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act was to cease to have effect with respect to any matter for which provision had been made in the Act. Further any other law in force before the commencement of the Act was to cease to apply to Hindus insofar as that was inconsistent with any of the provisions contained in the Act. THE contention is that the principle of Hindu Law in regard to the invalidity of adoption which has been noticed in the decision of this Court in the case of Lola Babu Ram v. Smt. Kishan Del (supra) must be deemed to have ceased to have any effect with the enforcement of the Hindu Adoptions and Maintenance Act in view of the overriding effect of the Act as envisaged under Section 4 thereof. THE other contention is that in any view of the matter the aforesaid principle has to be taken as inconsistent with Sections 6, 7 and 11 of the Act and, therefore, cannot be taken to render the adoption in question as invalid. The provisions contained in Section 6 of the Act prescribe the requisites of a valid adoption while Section 7 indicates the extent of capacity of a male Hindu to take in adoption and the provisions contained in Section 11 prescribe other conditions for a valid adoption. It has been urged that since the adoption in question is well within the ambit of the aforesaid provisions, it cannot be held to be invalid in law. 9. I have given my anxious consideration to the rival contentions indicated herein above and have carefully perused the various provisions of the Hindu Adoptions and Maintenance Act. 10. THE learned counsel for the respondent has heavily relied, in support of his submissions, upon the observations of the Apex Court in its decision in the case of Kartar Singh (Minor) through guardian Bachan Singh v. Surjan Singh and others, 1974 (2) SCC 559 , wherein indicating that after the coming into force of the Hindu Adoption and Maintenance Act, 1956, there is no room for any customary adoption. THE Apex Court had negatived the claim based upon customary adoption as was in force in Punjab before that Act became effective. THE Apex Court had negatived the claim based upon customary adoption as was in force in Punjab before that Act became effective. A perusal of the judgment in that case indicates that in Punjab, before the enforcement of the Act there was prevalent a customary adoption which was a custom of appointing an heir but the heir so appointed was not to cease to be the member of the family of his birth and did not even become the member of the family of the person who appointed him as his heir. There was also another mode of adoption, a more formal one, which was recognised under the Hindu Law in which there was giving and taking and the adopted son became the member of the adoptive family. These two types of customary adoptions carried different consequences. It was in this context that the aforesaid observation was made negativing the claim based on an adoption where the adopting son became an appointed heir only as indicated above. This type of adoption with peculiar consequences in regard to succession and inheritance had been specifically done away with under the scheme of Hindu Adoption and Maintenance Act This type of adoption, it may be noticed, was totally Inconsistent with the provisions made under the Act. THE Apex Court had found in the aforesaid case that in fact the adoption in that case was of the other type, that is, as recognised under the Hindu Law with all the consequences which flow from a full and formal adoption contemplated under the Hindu Law, which was recognised even In the other type of special custom Indicted hereinabove which was also prevalent in Punjab before the Act came into force. THE ratio of the aforesaid decision is not at all attracted to the facts and circumstances of the present case and the said decision cannot come to the rescue of the contesting respondent. It is well-settled that the main object of adoption, so far as a person who is a Hindu by religion is concerned, is to secure spiritual benefit to the adopter though its secondary object is to secure an heir to perpetuate the adopter's name. It is well-settled that the main object of adoption, so far as a person who is a Hindu by religion is concerned, is to secure spiritual benefit to the adopter though its secondary object is to secure an heir to perpetuate the adopter's name. Taking into account the religious and sacramental aspect which is involved in the act of adoption and the benefits which the Hindus believe in, namely, that an adoption of a son in the case of a childless Hindu is necessary for his salvation and for performing religious rites, the contention urged by the learned counsel for the respondent has to be examined with reference to the above while considering the implications arising under Sections 4, 6, 7 and 11 of the Act. The question which further arises for consideration is as to whether the ancient sacramental institution of adoption with the prohibition as Indicated in the decision in the case of Lata Babu Ram v. Smt. Kishen Dei (supra) stands done away with and the aforesaid principle is no longer applicable to an adoption of a son subsequent to the enforcement of the Act and cannot invalidate an adoption as in question in this case. 11. AS observed by the Apex Court in its decision in the case of Daniraiji Vrajlalji, Junagadh v. Maharaj Sri Chandraprabha, AIR 1975 SC 784 , the lndentment and effect of Section 4 (a) of the Act is to abrogate the existing law or custom in so far as it to be replaced by the law enacted in the Statute. The Apex Court had emphasised in its aforesaid decision that if there be a provision made in the statute which operates on the same area covered by the existing law or custom, the statutory provision must prevail and the existing law or custom must give away. 12. IT may be noticed that Hindu Adoption and Maintenance Act has codified the law of adoption and this codified law has made several changes in the law of adoption. Although with respect to matters for which provision is made in the Act, the prior law ceased to have effect to the extent laid down in Section 4, yet in respect of matters for which no provision is made in the Act, the old law must continue to remain applicable. Although with respect to matters for which provision is made in the Act, the prior law ceased to have effect to the extent laid down in Section 4, yet in respect of matters for which no provision is made in the Act, the old law must continue to remain applicable. IT is, therefore, obvious that where the Act makes any provision for a given situation, the provisions of the Act shall govern it and not the previous law. The aforesaid situation is apparent from a perusal of Section 4 (a) and 4 (b) of the Act. The question, however, is as to whether the principle that a Hindu cannot adopt a son whose mother could not have been married with him in her maiden state as the adoptive son has to be a reflection of a son still continues to hold the field covering a case even where in an adoption of a son, the requirements contemplated under Sections 5, 7 and 11 of the Act stand satisfied, and whether this principle is in any manner inconsistent with any of the provisions contained in the Act. 13. FROM a careful examination of the provisions contained in the Act, it is apparent that neither the provisions contained in Section 6 not those contained in Section 7 or as contained even in Section 11 of the Act can be said to either expressly or even impliedly have the effect of lifting the prohibition in regard to the adoption of a son who cannot In any circumstance be taken to be the reflection or having resemblance of a son on account of his being a son of a woman who could not be married with the adoptive father as indicated hereinabove. The aforesaid provisions contained in Sections 6, 7 and 11 of the Act are regulatory in nature and prescribe various conditions regulating the procedure relating to an adoption laying down certain conditions regarding the eligibility and capacity but are totally silent in regard to the main object of the adoption of a son by a Hindu which field continues to be covered by the principles of Hindu Law as in force prior to the enforcement of the Act. 14. IT may be noticed that the object of marriage among Hindus is to procreate a son able to confer spiritual benefit and this cannot be done by the issue of an incestuous marriage. 14. IT may be noticed that the object of marriage among Hindus is to procreate a son able to confer spiritual benefit and this cannot be done by the issue of an incestuous marriage. The child to be adopted should be such as may be looked upon "as the reflection of a son" or has resemblance of a son in the sense that he could have been legally be gotten, that is, one whose mother the adoptive father might have legally married. It seems to me that the conditions as prescribed under Sections 6, 7 and 11 of the Act cannot be taken to be covering the field of operation of the Hindu Law so far as it relates to the principle in regard to the prohibition in the matter of taking of a son in adoption who cannot be a reflection of a son as noticed hereinabove. This prohibition had become necessary in order to achieve the main object behind the adoption by a male Hindu. It cannot be expected that the Legislature was not alive to the aforesaid aspect in regard to the main object of adoption while codifying the Hindu Law. It is in this view of the matter, it seems to me, that all those principles of Hindu Law contained in the text or rule or its Interpretation or any custom or usage as part of that law in force immediately before the commencement of the Act in respect of a matter for which- provision had not been made in the Act were saved which is clearly indicative of the fact that such law will continue to be operative if it was not inconsistent with any of the provisions contained in the Act. The contention of the learned counsel for the respondent that since the adoption in question satisfied the requirements contained In Sections 6, 7 and 11 of the Act, it had to be taken as a valid adoption irrespective of the defect of the fatal nature as noticed hereinabove and further despite the fact that such an adoption could never fulfil the main object behind an adoption as contemplated under the Hindu Law as in force prior to the commencement of the Act so far as the person who was a Hindu by religion is concerned, cannot be accepted. 15. 15. IT further seems to me that the fact that the provisions of the Adoptions and Maintenance Act which have made permissible certain adoptions which otherwise were not possible under the Hindu Law as in force prior to the commencement of the Act and the ambit of the adoption as understood in Hindu Law or the text and usage or custom having a part of Hindu Law now stands expanded, by itself is not sufficient to Indicate that the real or main purpose of adoption so far as a male Hindu was concerned, stands totally abrogated or nullified. Merely making possible for a female to be adopted or making it permissible for a female to adopt, even In the absence of consent of the husband or doing away or making it possible/permissible to take a child In adoption, with a purpose to have an heir to accused to the estate of the females regulating the procedure relating to actual adoption maintaining certain essentials doing away with the diversities in that matter as prevalent prior to the enforcement of the Act, cannot lead to an inference that the prohibition in regard to the adoption of a son in violation of the principle referred to hereinabove in respect whereof there had not been any diversity whatsoever was made permissible under the Act. 16. THE principle as noticed in the decision of this Court in the case of Lala Babu Ram v. Smt. Kishan Del (supra), it seems to me cannot be deemed to be inconsistent In any manner either expressly or even impliedly with any provision as contained in the Act and I am clearly of the opinion that it stands saved and must be taken to be continuing to be in force. It is, therefore, open to a male Hindu to adopt a son complying with the provisions contained in Sections 6, 7 and 11 of the Act but such a son should not be a son who can never be treated as a reflection of son on account of his being the son of a woman whom the adoptive father could never have married and, therefore, such a son could never fulfil the main object of adoption so far as a male Hindu is concerned to which a reference has already been made above. 17. 17. IN view of my conclusions indicated hereinabove in regard to the noncompliance of the requirement envisaged under Section 11 (vi) of the Act as well as the fatal defect in the adoption in question noticed hereinbefore, there can be no escape from the conclusion that the adoption in question was clearly invalid in law. 18. IN the aforesaid circumstances, sufficient ground has been made out for interference in the impugned decree. In the result, this appeal succeeds. The judgment and decree under challenge passed by the first appellate court is set aside and the decree of the trial court Is restored. However, the parties are directed to best their own costs throughout.