Judgment :- 1. This Second Appeal is directed against the judgment of the learned District Judge, Ramanathapuram, at Madurai, in A.S. No. 46 of 1984 dated 27.9.1984, reversing fee judgment of the learned District Munsif, Madurai in O.S. No. 132 of 1980 dated 25.11.1983. The plaintiff in the suit is the appellant in the above Second Appeal. 2. The appellant herein filed the suit for declaration of title to the suit property and for consequential injunction directing the defendants to vacate and hand over the possession 6f the ground portion of the property to him. According to the plaintiff, the suit property belonged to his mother Sankarammal having inherited the same from her father Singamuthu Pillai. The plaintiff, defendants 1 and 2, Gnana-varadhan, Natarajan, Sankaran and Raja-rajeswari are the sons and daughter of Sankarammal and her husband Sundaraja Pillai. By a registered settlement deed dated 31.7.1968, Sankarammal divided all her properties including the suit property on her issues and each were entitled to a specific portion of the said properties. According to the plaintiff, as far as the suit property was concerned, northern portion was allotted to him, while the southern portion was allotted to Natarajan. The adjacent property on the south was allotted to Sankaran and as far as the first defendant, Gnanavaradhan, Rajeswari are concerned, they were given other properties and thus each of them was in possession of their respective properties in their own right. The first defendant was in management of the property before the settlement and hence, tax receipts were in his name, but otherwise he had no independent rights over the properties. After the execution of the settlement, the plaintiff and other sharers in the properties have been paying taxes for their portions and had also taken steps before the Municipal Authorities for transfer of the name in the Municipal Register. They have also been letting out their portions on lease to third parties. Natarajan, the other sharer of the suit property died in the year 1970 issueless and hence the property in his occupation reverted back to their mother Sankarammal. Sankarammal by virtue of a settlement deed dated 29.9.1979 conveyed the said share also in favour of the plaintiff and thus the plaintiff had become the owner of the entire suit property. Natarajan, the other sharer of the suit property died in the year 1970 issueless and hence the property in his occupation reverted back to their mother Sankarammal. Sankarammal by virtue of a settlement deed dated 29.9.1979 conveyed the said share also in favour of the plaintiff and thus the plaintiff had become the owner of the entire suit property. The plaintiff would further contend that the first respondent sold the property given to him and went away to Paramakudi, to live there. But, as a result of certain misunderstandings in the family, he had joined hands with the second defendant, and attempted to interfere with the plaintiffs peaceful possession of the property and hence a legal notice was sent to him for which a reply was sent containing false and frivolous claim to the effect that he was adopted by Singamuthu Pillai and his wife Silambayee. According to the plaintiff there was no such adoption as alleged by the first respondent and the first defendant himself had acknowledged the rights of Sankarammal and therefore, estopped from disputing Sankarammals rights. The claim by the first defendant, that their own father and mother have been witnesses to two documents substantiating the status of the first defendant as the adopted son of Singamuthu Pillai, was also denied. The plaintiff would further claim that he had perfected title to the suit properties by adverse possession also. According to him, the ground floor portion of the suit property was forcibly occupied by the first defendant after evicting the tenant who was in possession of the said premises. Hence the suit. 3. In the written statement, the first defendant contended that all the claims in the suit were false including the alleged settlement on 31.7.1968 by Sankarammal and consequent enjoyment of separate properties by all the parties concerned. But the entire property belonged to Singamuthu Pillai and he had adopted him being the son through his daughter and after his death in 1937, as the sole legal heir he had become entitled to all the properties. The contentions regarding the management and enjoyment of the properties as alleged in the plaint were denied. But the entire property belonged to Singamuthu Pillai and he had adopted him being the son through his daughter and after his death in 1937, as the sole legal heir he had become entitled to all the properties. The contentions regarding the management and enjoyment of the properties as alleged in the plaint were denied. The first defendant would further state that it was true that he had left for Paramakudi and stayed there for a period of seven or eight years and it was also true mat at that time he had permitted the plaintiff to be in occupation of upstairs portion and to collect rent from the tenants and to pay taxes on his behalf. Therefore, the plaintiff was not entitled to any relief. 4. The second defendant filed a written statement supporting the case of the plaintiff, but denying that he ever tried to interfere with the plaintiffs possession of the property. 5. The learned trial Judge, on a consideration of the pleadings and the evidence in the suit, agreed with the plaintiffs case, upholding the settlement in his favour and with the result the suit was decreed as prayed for. However, the learned appellate Judge disagreed with the findings of the trial Court and upheld the plea of adoption as put forth by the first defendant and with the result the appeal by the first defendant was allowed. Hence, the above Second Appeal by the plaintiff. 6. The entire case depends upon the truth and validity of claim of adoption as pleaded by the respondents. Learned counsel for the appellant very strenuously contended that there was no proper pleading much less, proof of adoption. Learned counsel for the respondents also relied on certain rulings to emphasise the strong nature of the pleadings and proof required to sustain the case of adoption. So far as factum and proof of adoption is concerned, it cannot be stated that the defendant had not pleaded about the same. Consistent with his reply notice he has specifically pleaded in paragraph 9 of his statement that he was adopted by Singa-muthu Pillai and Silambayee Animal and that there were several documents relating to various transactions including documents to which Sankarammal and Sundararaja Pillai were attesting witnesses, disclosing his status as the adopted son of Singamuthu Pillai. Consistent with his reply notice he has specifically pleaded in paragraph 9 of his statement that he was adopted by Singa-muthu Pillai and Silambayee Animal and that there were several documents relating to various transactions including documents to which Sankarammal and Sundararaja Pillai were attesting witnesses, disclosing his status as the adopted son of Singamuthu Pillai. The appellate Court has given several reasons convincingly for upholding the claim of adoption as put forth by the respondents. In Ex. B-1 dated 9.2.1940 Silambayee had executed an othi document for herself and as guardian of the first defendant in which the first defendant is described as adopted son. In Ex. B-2 dated 21.2.1941 also a sale deed executed by Silambayee, the first defendant is also described as adopted son and in this document both Sundaraja Pillai and Sankarammal had signed as witnesses. Though the appellate Court may not be strictly right in stating that Sundararaja Pillai and Sankarammal were estopped from contending that the plaintiff was not given in adoption, yet the said fact would be one of the probable circumstances in proving the adoption. The learned appellate Judge had also taken note of the fact that the revenue records were changed in the names of the respondents even during the iifetime of Silambayee and therefore, rightly held that the contention of the plaintiff that the defendants name was entered only in the capacity as Manager of the properties on behalf of Sankarammal, cannot be accepted. He has also taken note of the communications sent by the first defendant in 1960 for the funeral and obsequies of Silambayee as the adopted son. The above are only some of the circumstances relied upon by the learned appellate Judge who has concluded that the first defendant had proved adoption. Therefore, as a question of fact, the said finding has to be upheld and it has not been shown before me as to how the said finding would suffer from any illegality or perversity. 7. The only substantial legal basis on which the validity of adoption was attacked is that Hindu Law did not recognise the adoption of a daughters son and that therefore, the adoption even if it is true, should be declared as null and void and nonest in the eye of law. Mr. 7. The only substantial legal basis on which the validity of adoption was attacked is that Hindu Law did not recognise the adoption of a daughters son and that therefore, the adoption even if it is true, should be declared as null and void and nonest in the eye of law. Mr. T.M. Hariharan, learned counsel for the appellant very analytically put forth the said plea by referring to several decisions and texts dealing with the conditions of adoption to be valid under Hindu Law. 8. It is true that this case would be governed by old Hindu Law of adoption prior to its codification in 1956. The general rule qualifying persons who may be lawfully taken in adoption prescribes that the person to be taken in adoption should not be a boy whose mother, the adopting father could not have legally married. Thus, a daughters son and a sisters son or mothers sisters son etc., cannot be adopted vide page No. 512 of Mullas Hindu Law - Sixteenth Edition. This prohibition is based upon Nandha Pandithas exposition of ancient text. A Full Bench of this Court has clearly emphasised the inviolable nature of Nandha Pandithas Rule in I.L.R. 11, Madras, 49 ( Minakshi v. Ramananda ). This view was later endorsed by Privy Council in Bhagwansingh v. Bhagwan Singh (I.L.R. 21 Allahabad, 412) (P.C.) However on this issue the Supreme Court had occasion to lay down as follows; in A.I.R. 1962 S.C., 351 (Abhiraj Kuer v. Debenbra Singh ):— “We are not aware of any decision of any of the High Courts where Nanda Panditas rule against Viruddha Sambanda adoption has been considered to be a mandatory prohibition. For the reasons discussed above, we are of opinion that this rule introduced by Nanda Pandita is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wifes sisters daughters son is invalid.” 9. The question whether the prohibition was mandatory or recommendatory would be relevant only to consider whether the principles of factum valet could be invoked to hold the adoption as valid notwithstanding the prohibition in the Texts. The question whether the prohibition was mandatory or recommendatory would be relevant only to consider whether the principles of factum valet could be invoked to hold the adoption as valid notwithstanding the prohibition in the Texts. The venture on the part of the learned counsel for the appellant is to emphasise that the prohibition is mandatory and therefore, the principle of factum valet cannot be invoked and it cannot be relevant, vide the observation contained in Mulla s Hindu Law 479 (16th Edition):— “But the Texts relating to the capacity to give, the capacity to take and the capacity to be the subject of adoption is mandatory. Hence the principles of factum valet is ineffectual in the case of adoption in contravention of the provisions of those Texts.” 10. Reference is also made to the observation contained in the same book at page No. 513. “It is founded upon the fiction that the adopting father has begotten the boy upon his natural mother; Therefore, it is necessary that she should be a person who might lawfully, his wife. For this reason a man cannot adopt his daughters son, or his sisters son or his mothers sisters son, for he cannot marry his daughter, his sister, or his mothers sister; Such an adoption cannot be validated by the application of doctrine of factum valet.” 11. Any further discussion as to whether the prohibition is mandatory or not need not detain us further having regard to the fact that the relevant texts, as well as several rulings have held that the prohibition does not apply to Sudhras and would apply only to the other three classes. There are many rulings to that effect and reference to the following would be sufficient. (i) Mullas Hindu Law - Sixteenth Edition - Paragraph 480 (3) at 512. (ii) I.L.R. (1876) I Madras 62 (Chinna Nagayya v. Pedda Nagayya) (iii) I.L.R. (1925) 48 Madras, 1 (Maharaja of Kolhapur v. S. Sundaram Ayyar) (iv) A.I.R. 1959 Andhra Pradesh 177 (G. Hanumaiah v. G. Mallayya). 12. There can be no dispute over the fact that the parties to the present case belong to Vellala community and thus they belong to Sudhra class and consequently the prohibition cannot apply to them. 12. There can be no dispute over the fact that the parties to the present case belong to Vellala community and thus they belong to Sudhra class and consequently the prohibition cannot apply to them. But according to the learned counsel for the appellant, to plead that the prohibition does not apply to Sudhras, would really amount to pleading factum valet, since the prohibition is mandatory. He would rely on the observation extracted above from Mullas Hindu Law to the effect that an adoption contrary to the prohibition cannot be validated by invoking factum valet. I have to disagree for two reasons. One reason is that according to the decision of the Supreme Court cited above, A.I.R. 1962 S.C. 351 the prohibition is not mandatory but recommen datory. The other reason is, the fact remains that there was no uniformity in the old Hindu Law as would be applicable to all the Hindus and there can be no dispute that different rules were framed for different classes. When there is no rule prescribing any such prohibition to Sudhras, there is no question of invoking the doctrine of factum valet . It is only when something is done which ought not to have been done, the doctrine of factum valet can be invoked. Even for other three classes other than Sudhras, the prohibition is not absolute, but is subject to custom. (Vide Pages 512 and 513 of Mullas Hindu Law) 13. Therefore, I am unable to hold mat the adoption was in any manner illegal or opposed to the tenets of the Hindu Law so as to render the adoption illegal and void. 14. Even so, learned counsel for the appellant chooses to be relentless and would state that the defendant had not established any custom to the contrary namely, that in their community, such an adoption was prevalent. This submission is made on the basis of the decision rendered by a Division Bench of this Court in 1984 II M.L.J. 397=97 L.W. 490 (Mariammat v. Govindammal). S. Swamikkannu, J. while delivering the judgment for the Division Bench, held that even in the case of Shudras to whom the prohibition is not applicable, once a custom is pleaded, then the said custom must be established by satisfactory evidence and this burden cannot be discharged by merely contending that the persons claiming the custom were classified only as Sudhras. That was also a case where the parties belonged to Vellala Community. With due respect, I will not be competent to comment on the correctness or otherwise of the decision of the Division Bench having insisted on the proof of custom in a case to which the prohibition did not at all apply and the Division Bench in having treated a mere superfluous pleading of custom as overriding the actual requirements of law as espoused by the various fillings cited above. But it would be within my discretion to point out that the observations of the Division Bench will not apply to the present case. The Division Bench was dealing with a case where custom was specifically pleaded and the Court held that even if the prohibition was only recommendatory, yet when once the custom was pleaded then it was necessary to establish custom by satisfactory evidence. In the present case, the first defendant had not at all pleaded any custom in his written statement and hence the ruling of the Division Bench to the extent it requires proof of any custom, cannot be applied. It is also seen that even in the grounds of appeal filed before lower appellate Court the first defendant has not pleaded any custom. 15. Therefore, I am unable to find any illegality in the judgment of the lower appellate Court and hence above Second Appeal is liable to be dismissed. 16. With the result, the above Second Appeal is dismissed. No costs.