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2000 DIGILAW 1282 (ALL)

SATYA GUPTA v. OM PRAKASH (DECD. ) THROUGH L. RS.

2000-09-29

P.K.JAIN

body2000
P. K. JAIN, J. ( 1 ) THIS is defendants second appeal against the judgment and decree dated 27. 2. 1998 passed by the Additional District Judge, Ghaziabad whereby the judgment and decree dated 5. 3. 1990 passed by the Additional Civil Judge. Ghaziabad, dismissing the suit of the plaintiffs-respondents was reversed by the lower appellate court and the suit of the plaintiffs-respondent No. 1 (now represented by heirs and legal representatives, respondent Nos. 1/1 and 1/2) and respondent No. 2 was decreed by the lower appellate court. ( 2 ) OM Prakash and Salekh Chand filed Suit No. 699 of 1984 against appellant Smt. Satya Gupta and one Brijesh Kumar, respondent No. 3 in this appeal. Shiv Om Banshal and Mahendra Kumar banshal appellant Nos. 2 and 3 were added as defendant Nos. 3 and 4. The plaint allegations were that house No. 104 (old number) with its new Nos. 175 and 176 described in the plaint belonged to one Paras Ram who had four sons, namely, Jagannath, Dina Nath, Anand Swaroop and Battu Mal. The pedigree is given as follows : pedigree Paras Ram jagannath Dina Nath Anand Swaroop Battu Mal (died issuless) Chandra Bhan Surendra Kumar (adopted son) (son)Smt. Shanti Devi (widow)Chawati Devi Smt. Satya Gupta Brijesh Kumar (widow) (daughter of (adopted son)defendant No. 1) defendant No. Dina Nath died issueless but diring his life time he had sold his 1/4th share to Battu Mal. Surendra Kumar and his mother (widow of Anand Swaroop) had sold their 1/4th share to Smt. Satya Gupta by registered sale deed. Brijesh Kumar defendant No. 2 is adopted son of Battu Mal. On the death of Jagannath, his son Chandra Bhan succeeded to share of Jagannath in the suit property. On the death of Chandra Bhan, his widow Smt. Shantl Devi succeeded to the 1/4th share of Chandra Bhan in the suit property. She executed a sale deed dated 26. 7. 1979 of her share in the suit property in favour of the plaintiffs. At the time of execution of the sale deed. Shanti Devi was in possession of her share in the suit property. Thus, the plaintiffs are co-sharers of 1/4th share in the suit property whereas defendant Nos. 1 and 2 are co-sharers of 3/8th share each in the suit property. It is alleged that Jagannath had no issue. At the time of execution of the sale deed. Shanti Devi was in possession of her share in the suit property. Thus, the plaintiffs are co-sharers of 1/4th share in the suit property whereas defendant Nos. 1 and 2 are co-sharers of 3/8th share each in the suit property. It is alleged that Jagannath had no issue. He had adopted Chandra Bhan who happens to be the son of his real sister and the sisters husband name was also Jagannath. Ceremony adoption was performed in accordance with the customs of the community prevalent among the parties in the month of Falgun Sambat, 1985. There was a custom in the community of the co-sharers to adopt sisters son and Smt. Shanti Devi was wife of Chandra Bhan. The plaintiffs wanted to get the suit property partitioned and have their separate 1/4th share in the suit property. On the above pleadings the relief claimed was that the suit property be partitioned by metes and bounds and the plaintiffs be given possession on the separate share allotted to them. ( 3 ) DEFENDANT No. 2 did not file any written statement and suit against him proceeded ex-parte. ( 4 ) DEFENDANT No. 1 (present appellant No. 1) and defendant Nos. 3 and 4 contested the suit by filing separate written statements. Defendant No. 1 in her written statement denied the claim of the plaintiffs and it was pleaded that plaintiff No. 1. Om Prakash was tenant of Smt. Chawali devi on part of the land of the disputed property at the rate of Rs. 65 per month as rent. He inducted plaintiff No. 2 as subtenant. Smt. Chawali Devi was mother of defendant No. 1 and on the death of Smt. Chawali Devi defendant No. 1 Smt. Satya Gupta succeeded to the share of chawali Devi in the suit property. She filed Suit No. 31 of 1985 for ejectment of the plaintiffs, which is pending. The family pedigree was accepted subject to the correction that Chandra Bhan and Shanti Devi were wrongly shown as son of Jagannath and widow of Chandra Bhan. Jagannath died issueless. Likewise Battu Mal had not adopted any son, Brijesh Kumar, and defendant No. 2 Brijesh Kumar was not adopted son of Battu Mal. The family pedigree was accepted subject to the correction that Chandra Bhan and Shanti Devi were wrongly shown as son of Jagannath and widow of Chandra Bhan. Jagannath died issueless. Likewise Battu Mal had not adopted any son, Brijesh Kumar, and defendant No. 2 Brijesh Kumar was not adopted son of Battu Mal. At the time of his death Battu mal was owner of the entire suit property and on his death his widow Smt. Chawali Devi became owner in possession and on Chawali Devis death defendant No. 1 Smt. Satya Gupta being her daughter became owner in possession of the entire suit property. The plaintiffs and other defendants have no share in the suit property. The plaintiffs and other defendants have no share in the suit property. The sale deed executed by Smt. Shanti Devi in favour of the plaintiffs is null and void. Jagannath had not adopted Chandra Bhan son of his sister and according to the Hindu mythology and vaishya community sisters son cannot be adopted. No such custom was prevalent in the vaishya community of Hapur. Hence the alleged adoption was illegal. Jagannath died issueless about 50 years back and on his death Dina Nath, Anand Swaroop and battu Mal alias Jagat Swaroop became owners in possession by survivorship and their names were mutated in the Municipal records on the application moved by Dina Nath and Battu Mal in the year 1936. Thereafter Battu Mal had purchased the share of Dina Nath and Anand Swaroop and thus Battu Mal became sole owner of the suit property. Such entries were made in the municipal records for the assessment years 1946-51. Battu Mal was murdered. One Surendra kumar and Smt. Basanti Devi had no share in the suit property but in order to avoid any dispute defendant Smt. Satya Gupta had purchased 1/4th share from Surendra Kumar and Smt. Basanti devi. Battu Mal had never adopted Brijesh Kumar and Brijesh Kumar is son of one Shambhu saran who was distantly related to Battu Mal. Brijesh Kumar was sentenced to life imprisonment for committing the murder of Battu Mal in the year 1956 and thus Brijesh Kumar was not entitled to succeed to the property of Battu Mal. One Sri Hari Shanker Bansal (father of defendant Nos. Brijesh Kumar was sentenced to life imprisonment for committing the murder of Battu Mal in the year 1956 and thus Brijesh Kumar was not entitled to succeed to the property of Battu Mal. One Sri Hari Shanker Bansal (father of defendant Nos. 3 and 4) was tenant of Smt. Chawali Devi on part of the suit property for about last 25 years and he had constructed one pucca room on the land under his tenancy. Plaintiff No. 1, Om Prakash was also given 7 x 7 feet land of suit property on rent by Smt. Chawali Devi on which a temporary wooden Khokha was kept by Om Prakash in which he was doing on Crockery and Shamiyana business. It was also pleaded that Smt. Chawali Devi executed a Will dated 21. 6. 1962 in favour of defendant No. 1 in respect of her entire property. She died on 23. 5. 1980 and on her death defendant No. 1 filed Testamentary Suit No. 1 of 1981 in the High Court on the basis of the will dated 21. 6. 1962 and she was granted letters of administration on 9. 4. 1984. Defendant No. 1 is in possession of the suit property for last about 20 years and her name is entered in the Municipal Records as owner of the disputed property. Plaintiffs never objected to it. The answering defendant by a registered sale deed sold the suit property to Shiv Om Bansal and Mahendra Kumar Bansal (defendant Nos. 3 and 4) and they are necessary parties to the suit. ( 5 ) DEFENDANT Nos. 3 and 4 in their written statements adopted the pleadings of defendant No. 1 and categorically alleged that according to the Hindu mythology sisters son cannot be adopted, hence alleged adoption of Chandra Bhan by Jagannath was against law. ( 6 ) PLAINTIFFS filed replication in which it was reiterated that in the township of Hapur, where jagannath, Anand Swaroop etc. lived, there was a custom prevalent among Vaish community to adopt son of sister. It was also pleaded that since only Battu Mal lived in Ghaziabad, he got his name mutated in the Municipal records, but that will not affect the right of the co-sharers. lived, there was a custom prevalent among Vaish community to adopt son of sister. It was also pleaded that since only Battu Mal lived in Ghaziabad, he got his name mutated in the Municipal records, but that will not affect the right of the co-sharers. In the sale deed executed by Surendra Kumar Bansal and Basanti Devi in favour of defendant No. 1, 1/4th share is shown to have been sold and it was wrong to allege that they had sold 1/3rd share to defendant No. 1. ( 7 ) ON the pleadings of the parties, the trial court framed a number of issues. Relevant issues for purposes of disposal of this appeal are issue Nos. 1 and 2 which were as follows : (1) Whether a custom was prevalent in Vaish community to validly adopt son of the sister? (2) Whether Jagannath had legally adopted Chandra Bhan as a son, if so its effect? ( 8 ) BOTH the parties adduced oral as well as documentary evidence. The trial court on consideration of the evidence adduced before it and also on consideration of legal position recorded finding that the plaintiffs have failed to establish that Jagannath had legally adopted chandra Bhan as his son. They have also failed to establish that in the township of Hapur a custom was prevalent in Vaish community to validly adopt son of sister. The trial court also recorded a finding of fact that the plaintiffs have failed to establish that the formalities of adoption were observed in accordance with law. On the other issues also, the trial court recorded finding of fact against the plaintiffs. The trial court accordingly dismissed the suit. ( 9 ) THE lower appellate court on reappraisal of evidence and consideration of the case law cited before it, reversed the findings of the trial court on issue Nos. 1 and 2 and held that the custom of adoption of sisters son prevalent among Vaish community has been established by the plaintiffs and Chandra Bhan was legally adopted son of Jagannath and, therefore, he had succeeded to 1/4th share of Jagannath in the suit property and on his death Smt. Shanti Devi (widow of chandra Bhan) became co-sharer of 1/4th share in the suit property. The lower appellate court, therefore, decreed the suit of the plaintiffs by setting aside the Judgment and decree passed by the trial court and directed for framing of preliminary decree. ( 10 ) AGGRIEVED by the judgment and decree passed by the lower appellate court the defendants have filed the present appeal against the preliminary decree. The appeal was admitted by order dated 23. 3. 1998. However, no substantial question of law was framed. In the memo of appeal. the appellants have formulated following substantial questions of law : (1) Whether in view of the fact that none of the witnesses of the plaintiff could cite even a solitary instance of a sisters son being adopted by a person of Vaish community at or around hapur, the burden of proof to establish the alleged custom, has been discharged by the plaintiffs? (2) Whether the decisions relied upon by the lower appellate court (1923 ALJ 478 and AIR 1960 pun 542) applies to the facts and circumstances of the instant case or had any corroborative value in the absence of any evidence by the plaintiff to prove the alleged custom? (3) Whether a Hindu belonging to regenerated class could be adopted after performance of janew ceremony? (4) Whether the plaintiff had succeeded in proving the factum of alleged adoption in the absence of any evidence regarding the ceremony of giving and taking of the adopted child? (5) Whether the recital in a document regarding alleged adoption is sufficient to establish the factum of adoption? (6) Whether the finding of the lower appellate court on issue No. 2 is perverse and against the evidence on record? ( 11 ) HOWEVER, during arguments, the learned counsel for the appellants has pressed the appeal on the following substantial questions of law : (1) Whether the plaintiffs/ respondents have successfully discharged the burden of proof to establish that there existed a custom in the Vaish community to which the lineal descendants of paras Ram belonged, to adopt the son of sister? (2) Whether a Hindu belonging to the regenerated class could be adopted after performance of janew ceremony? (3) Whether for proving the factum of adoption it was necessary to lead evidence of giving and taking of an adopted child at the time of ceremony of adoption? (4) Whether recital in a document regarding alleged adoption is sufficient for proving of the factum of adoption? (3) Whether for proving the factum of adoption it was necessary to lead evidence of giving and taking of an adopted child at the time of ceremony of adoption? (4) Whether recital in a document regarding alleged adoption is sufficient for proving of the factum of adoption? ( 12 ) SRI Manoj Mishra, learned counsel for the appellants was heard at length. Sri B. D. Mandhyan, learned counsel for the plaintiffs-respondents was given sufficient opportunity to argue on behalf of respondents. He has submitted written submissions. Thereafter, opportunity was granted to him to make oral submissions also, but no oral submissions have been made by sri Mandhyan. ( 13 ) ONE of the preliminary objections taken by Sri Mandhyan in the written arguments is that no substantial question of law is involved and there are pure findings of fact which cannot be disturbed by this Court while hearing an appeal under Section 100 of Code of Civil Procedure. It is also stated that even if it is mixed question of fact and law, it would not amount to substantial question of law within the meaning of Section 100 of Code of Civil Procedure. Reliance has been placed on the following two decisions of the Apex Court in Ishwar Dass Jain (dead)through L. Rs. v. Sohan Lal (dead) by L. Rs. , JT 1999 (9) SC 305 and Taherakhatoon v. Salamoin mohammad, AIR 1999 SC 1104 . ( 14 ) THERE can be no dispute with regard to the legal position that pure findings of fact cannot be reversed by the High Court in second appeal under Section 100, C. P. C. except where such findings are influenced by non-consideration of material or relevant evidence which if considered would be led to a different conclusion or a situation in which the lower appellate court relied upon inadmissible evidence while reaching to a particular finding of fact. This position of law has been settled down by the Apex Court by catena of decisions. In Ishwar Dass jains case itself, the Apex Court held that : "11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. . . . . 12. In Ishwar Dass jains case itself, the Apex Court held that : "11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. . . . . 12. The second situation in which interference with finding of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which. If it was omitted an, opposite conclusion was possible. . . . . " The Honble Court referred to the decisions of the Apex Court in Dil Bagadai Punjabi v. Sarat chand, JT 1998 (3) SC 308 ; Jagdish Singh v. Nathu Singh, 1992 (1) SC 647 ; Surendra naichavabyal v. Ramaswamy Aiyyer, 1995 (Suppl) (4) SC 534 ; Mehrulnisha v. Visham Kumar, jt 1997 (9) SC 616 and Sri Chand Kumar v. Gulzar Singh, JT 1991 (5) SC 400. ( 15 ) THUS, the law as it stands now is that normally the pure findings of fact cannot be interfered with while hearing a second appeal under Section 100, C. P. C. However, such interference with finding of fact is permissible where material or relevant evidence is not considered or in a situation where while arriving at a finding of fact reliance is placed upon inadmissible evidence, which if omitted, an opposite conclusion would be arrived at. The question whether in the instant appeal, such a situation arises or not shall be considered while dealing with the arguments advanced on behalf of the appellants. ( 16 ) NOW I proceed to decide the substantial questions of law formulated above. Finding : ( 17 ) QUESTION No. 3 : With regard to the finding on question No. 3, submission of Shri Manoj mishra, learned counsel for the appellants is that for proving factum of adoption, it was necessary to lead evidence of giving and taking in adoption. In the instant case, Shri Mishra submits that the evidence of giving in adoption has been led by the plaintiffs, but no evidence relating to taking in adoption at the time of ceremony of adoption has been led. Shri Mishra has referred to statements of P. W. 1 and P. W. 2 who have been examined during the trial. P. W. 1 is smt. Shri Mishra has referred to statements of P. W. 1 and P. W. 2 who have been examined during the trial. P. W. 1 is smt. Shanti Devi widow of Chandra Bhan, the alleged adopted son of Jagannath. After considering her evidence, the trial court recorded a finding of fact that it is only a hearsay evidence. She was not a witness of adoption ceremony. The other witness examined by the defendant was P. W. 2 Murari Lal who claimed that Battu Mal son of Paras Ram predecessor in interest of appellant. Smt. Satya Gupta was his real brother-in-law (Bahnoi ). He stated that the adoption ceremony was performed around 60 years back and he had attended the adoption ceremony which was performed in Hapur. This witness has stated that at the time of ceremony, chandra Bhan whose real fathers name was also Jagannath, had seated Chandra Bhan in the god (lap) of Jagannath son of Paras Ram and had declared that : ^^esa vius ym+ds dks vkidks xksn ns jgk gw vksj vktls ;g ym+dk vkidk gks x;k gs vksj ym+ds dk esjs ifjokjls dksbz lecu/k ugha jgk A** ( 18 ) THERE is no doubt that there is nothing in the evidence of P. W. 2 stating that the adoptee father had accepted the adoption and had acknowledged the taking of Chandra Bhan as adoptive son. The submission of Sri Mandhyan, learned counsel for the contesting respondents, however, is that this would amount to tacit consent and evidence of taking on adoption. It has also been pointed out that no such controversy was raised either before the trial court or before the lower appellate court. There cannot be doubt that under Hindu law, there cannot be a valid adoption until the adopted boy is transferred from one family to another and that can be done only by ceremony of giving and taking. Para 488 of Mullas Principles of Hindu Law, (Vol. I, 17th edition) provides that the ceremonies relating to an adoption are : (a) The physical act of giving and receiving with intent to transfer the boy from one family to another. . . . . (b ). . . . . (c ). . . . . Para 489 of Mullas Principles of Hindu Law, (Vol. I, 17th Edition) provides that : "physical act of giving and receiving is absolutely necessary to validity of an adoption. . . . . (b ). . . . . (c ). . . . . Para 489 of Mullas Principles of Hindu Law, (Vol. I, 17th Edition) provides that : "physical act of giving and receiving is absolutely necessary to validity of an adoption. This is not only in the case of twins parent classes, but also in the cases of Shudra class this ceremony is the essence of the adoption and law does not accept any substitute for it. Mere expression to consent, or execution of a deed of adoption, though registered, but not accompanied by actual delivery of the boy does not operate as a valid adoption. To constitute giving and taking in an adoption all that is necessary is that there can be some overt act to signify the delivery of the boy from one family to another. No particular form is prescribed for the ceremony, but law requires that the natural parent should hand over the adoptive boy and adoptive parent should receive him. The nature of ceremony may vary depending upon the circumstances of the case. However, the ceremony of giving and taking should necessarily be there. " These observations of Mulla in his aforesaid book on Hindu Law were quoted with approval by the Honble Supreme Court in Laxman Singh Kothari v. Smt. Roop Kunwar, AIR 1961 SC 1378 . It was held that the object of peripheral giving and taking in the adoption is to secure due publicity. To achieve this object, it is essential to have a formal ceremony. In the instant case, the factual controversy with regard to the performing of the ceremony of giving and taking in an adoption does not appear to have been raised by the parties at any stage of the arguments. From the judgment of the trial court, it would appear that the real controversy raised was whether the adoption was valid or not. The trial court recorded a finding that the plaintiffs have failed to establish the factum of adoption of Chandra Bhan by Jagannath the alleged adoptive father. Perusal of judgment of lower appellate court does not show that any controversy with regard to the giving and taking in an adoption was raised before the lower appellate court. The trial court recorded a finding that the plaintiffs have failed to establish the factum of adoption of Chandra Bhan by Jagannath the alleged adoptive father. Perusal of judgment of lower appellate court does not show that any controversy with regard to the giving and taking in an adoption was raised before the lower appellate court. The real controversy before the lower appellate court was whether real sisters son could be validly adopted and whether there existed a custom which was prevalent between the parties in accordance with which the adoption of Chandra Bhan by his adoptive father was valid. Whether there was a ceremony or not, in which requirement of giving and taking in adoption was observed, with intent to transfer the boy from one family to another is a question of fact and not question of law. When no controversy with regard to the giving and taking ceremony has been raised before the Court below, it cannot be allowed to be raised for the first time in second appeal. In my view, the question No. 3 raised by the learned counsel for the appellants is purely a question of fact and not a question of law. Question No. 1 : ( 19 ) THIS question relates to the validity of the adoption. There is no dispute that before adoption is held to be valid, when a dispute arises, it must be proved that the person adopted could be lawfully taken in adoption. Hindu law provided that the boy to be adopted must not be son whose mother the adoptive father could not have legally married. This rule is specially applicable to the cases of daughters son, sisters son and mothers sisters son. However, there is an exception and it has been held in respect of three upper classes that an adoption against the prohibition under this rule may be valid if sanctioned by the custom. Mulla in his Principles of hindu Law, Vol. I, 17th Edition, in paragraph 480 (3) observed as follows: "480. Who may be adopted-subject to the following rules : any person who is Hindu, may be taken or given in an adoption; (a ). . . . . (b ). . . . . Mulla in his Principles of hindu Law, Vol. I, 17th Edition, in paragraph 480 (3) observed as follows: "480. Who may be adopted-subject to the following rules : any person who is Hindu, may be taken or given in an adoption; (a ). . . . . (b ). . . . . (c) he must not be a boy whose mother the adopting father could not have legally married, but this rule had been restricted in many cases to the daughters son, sisters son and mothers sisters son. This prohibition, however, does not apply to Shudras. Even as to three upper classes, it has been held that an adoption though prohibited under this rule, may be valid, if sanctioned by custom. " ( 20 ) THE above rule is widely accepted by the Courts in India, and it has been accepted in large number of decisions that when there is a conflict between a custom and a text of Smritis, the custom overrides the text. It was held in Vennikund v. Venichiammal, AIR 1928, Mad 299, that under the Hindu system of law, clear proof of usage will outweigh the written text of law. According to the Mullas Principles of Hindu Law (supra), the Hindu customs recognised by the courts are : (1) local, (2) class and (3) family customs. From reading of the pleadings of the parties in the present case it would be found that the custom pleaded by the plaintiffs is a local as well as class custom. ( 21 ) IN para 6 of the plaint, the plaintiffs have stated that Jagannath son of Paras Ram had no issue of his own. Hence he had adopted Shri Chandra Bhan, son of his real sister the name of whose husband was also Jagannath. The adoption took place in presence of biradari in accordance with the custom of biradari after performing necessary ceremony. It was also stated that at the time of taking Chandra Bhan in adoption, there was a custom in the community to take the son of the sister in adoption. In para 9 of the replication, it was stated that in Kasba-Hapur to which place jagannath and Anand Swaroop, etc. belonged and in the nearby places, there was a custom prevalent in Vaish community to adopt the sisters son. In para 9 of the replication, it was stated that in Kasba-Hapur to which place jagannath and Anand Swaroop, etc. belonged and in the nearby places, there was a custom prevalent in Vaish community to adopt the sisters son. As against this, the defence set up by the defendant/appellant No. 1 in para 14 of her written statement was that according to the Hindu religious Books, a sisters son cannot be adopted in Vaish community. In Kasba-Hapur or in nearby places, there was no custom among Vaish community to give or take sisters son in adoption. This defence pleaded by defendant/appellant No. 1 was also adopted by defendant nos. 3 and 4, who made similar pleadings in para 14 of their written statements. ( 22 ) BEFORE adverting to the legal position as to how a custom is proved, it would be relevant to point out that P. W. 1 and P. W. 2, Smt Shanti Devi and Murari Lal have not stated even a single word about the existence of the custom as pleaded by the plaintiffs in their plaint and in the replication. It is only P. W. 3, Salekh Chand who has stated in his examination-in-chief that when chandra Bhan was adopted by Jagannath, there was a custom prevalent among the Vaish community to adopt the son of real sister and the custom continued thereafter also. During cross-examination, however, the witness stated that Murari Lal had told him that there was custom prevalent among Vaish community in respect of adoption of sisters son. He admitted that p. W. 2 is the person who had told him about the custom. He admitted that he never inquired in the township of Hapur if any Vaish had adopted his sisters son. He has also admitted that he does not know if any Vaish had adopted his sisters son except in the case of Chandra Bhan. On the other hand, the defendant/appellant No. 1 in her deposition as D. W. 1 also did not speak about the existence or otherwise of the custom as alleged by the plaintiffs. However, D. W. 3, hari Shanker has categorically stated in his examination-in-chief that sisters son is not adopted among Hindu Vaish community and no such custom or usage was prevalent. However, D. W. 3, hari Shanker has categorically stated in his examination-in-chief that sisters son is not adopted among Hindu Vaish community and no such custom or usage was prevalent. ( 23 ) IT is in the light of these pleadings and evidence adduced by the parties that the Court has to decide whether the plaintiff/ respondents have successfully discharged the burden of proof to establish that there existed a custom in the Vaish community, to which the lineal descendants of paras Ram belonged, to adopt the son of sister. ( 24 ) IT would be appropriate here to point out that the trial court discussed the evidence of the parties with regard to the custom alleged by the plaintiffs and recorded a categorical finding that the plaintiffs have failed to establish the custom whereby adoption of sisters son was permissible between the parties. The trial court was of the view that so far as Salekh Chand, P. W. 3 is concerned, his evidence with regard to the usage or custom was only hearsay evidence. He had admitted that Murari Lal had told him about the said custom and he himself did not inquire from anybody about the custom being prevalent in Hapur and he could not cite any instance in which any person belonging to the Vaish community had adopted his sisters son. The trial court also considered the evidence of D. W. 3 to whom it was suggested that Om Prakash plaintiff had adopted his sisters son. Though the witness admitted that Munna is adopted son of Om Prakash but he categorically denied that he was Om Prakashs sisters son, the witness had admitted that rewati Saran was the natural father of Munna Lal and Rewati Saran was brother-in-law of Om prakash. The trial court was of the view that by cross-examining the witness, it was not elicited from him that Rewati Saran had no other wife except real sister of Om Prakash and hence no inference can be drawn that Munna Lal was son of Om Prakashs real sister. It has also been observed by the trial court that if Munna Lal was son of real sister of Om Prakash, then Om prakash could himself had deposed the fact as a witness. Salekh Chand has also not deposed this fact in his evidence who is himself one of the plaintiffs and son of Rewati Saran. It has also been observed by the trial court that if Munna Lal was son of real sister of Om Prakash, then Om prakash could himself had deposed the fact as a witness. Salekh Chand has also not deposed this fact in his evidence who is himself one of the plaintiffs and son of Rewati Saran. The trial court also observed that one or two instances were not sufficient to establish a custom. The lower appellate court, however, reversed these findings of fact. It may be observed here that the lower appellate court in its judgment has wrongly observed that Smt. Shanti Devi P. W. 1 has stated in her deposition that at the time when Chandra Bhan was adopted by Jagannath son of Paras Ram, there was a custom prevalent whereby sisters son could be taken in adoption. The lower appellate court also referred to the statement of Salekh Chand. P. W. 3 during cross-examination wherein he stated that Murari Lal had told him about the custom prevalent in Vaish community regarding adoption of sisters son. The lower appellate court also referred statement of Hari shanker, D. W, 3 which has not been accepted by the trial court and inferred that the statement of hari Shanker establishes that Munna Lal, adopted son of Om Prakash, was his real sisters son. The lower appellate court held that it may be inferred from the testimony of D. W. 3 that Om prakash had actually adopted his sisters son, Munna Lal. The trial court had given sufficient and cogent reasons for holding that from the evidence of D. W. 3, no inference can be drawn that there existed a custom among Vaish community to adopt sisters son by the adopting father. The lower appellate court displaced that finding of fact on surmises and on misreading of statement of P. W. 1. P. W. 1 has nowhere stated in her deposition that there existed a custom among Vaish community of Hapur to adopt sisters son by the adoptee father yet the lower appellate court observed in its judgment that such a statement was made by P. W. 1. ( 25 ) THE lower appellate court appears to have confused between the proof of ceremony and proof of custom. ( 25 ) THE lower appellate court appears to have confused between the proof of ceremony and proof of custom. Some of the decisions of the Supreme Court and High Courts were cited by the lower appellate court in which it was held that where the adoption was quite old and the evidence of actual ceremony of giving and taking in adoption could not be given or if there were certain discrepancies with regard to such evidence, then such discrepancies or absence of evidence would be immaterial if there is other reliable evidence showing that the person adopted was being treated as such by near relations of the adoptee father as well as by the father adopting the boy. The decisions in those shall not be applicable to the proof of custom. ( 26 ) MULLA in his Principles of Hindu Law, Vol. I, 17th Edition has stated the essentials of a valid custom and the manner in which a custom could be proved. Paragraph 17 ; Essentials of a valid custom : (1) A custom is a rule which in a particular family or a particular class or community or in a particular district, has from long usage obtained the force of law. It must be ancient, certain, and reasonable and being in derogation of the general rules of law, must be construed strictly. It is further essential that it should be established to be so, by clear and unambiguous evidence, for it is only by means of such evidence that the Courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. It must not be opposed to morality or public policy and it must not be expressly forbidden by the Legislature. It must not be in derogation of the fundamental rights of citizen to hold and dispose of property by absolutely prohibiting alienation of property even after actual division. Where the evidence shows that the custom alleged was not followed in numerous instances, the custom could not be held to be proved. A custom derives its force from the fact that it has, from long usage, obtained the force of law. Where the evidence shows that the custom alleged was not followed in numerous instances, the custom could not be held to be proved. A custom derives its force from the fact that it has, from long usage, obtained the force of law. It must be ancient ; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established Government rule of a particular locality. (2) It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning since it is the usage that makes the law and not the reason of the thing. In Saligram v. Munshi Ram the Supreme Court was considering a case of custom under Section 5 of the Punjab Laws Act. (3) Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the Court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them ; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A Judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the Courts, the Courts, may hold that the custom was introduced into law without the necessity of proof in each individual case. ( 27 ) THE above comments of the commentary have been widely accepted by the Courts. Where, however a custom is repeatedly brought to the notice of the Courts, the Courts, may hold that the custom was introduced into law without the necessity of proof in each individual case. ( 27 ) THE above comments of the commentary have been widely accepted by the Courts. According to the above comments, a custom is a rule which in a particular family or a particular class or community or in a particular district has from long use obtained the force of law. In the instant case, as I have already pointed out above, the plaintiffs in their plaint pleaded a case of a custom of the community, however, in the replication the custom pleaded was a local custom. As already pointed out above. P. W. 1 did not speak anything on the position either of a local custom or of a custom or usage by the community, P. W. 2. Murari Lal was witness of the ceremony of adoption, he was brother-in-law of Jagannath son of Paras Ram who is said to have adopted chandra Bhan. This witness was 82 years old at the time of deposition in the Court. He does not speak a word either with regard to the local custom or the custom of the community. P. W. 3 as observed by the lower appellate court was only 43 years old at the time of his deposition whereas the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by P. W. 2, murari Lal. He himself did not speak of such a custom. The evidence of the plaintiff was thus insufficient to prove the usage or custom prevalent either in the township of Hapur and around it or in the community of Vaish. The evidence of D. W. 3 refers only to one instance from his evidence it cannot be inferred that Om Prakash plaintiff had adopted Munna Lal who was his real sisters son. As already pointed out above, the trial court found that the evidence of D. W. 3 was not so clear and unambiguous as to lead to no other conclusion except that Munna Lal was son of real sister of Om Prakash. As already pointed out above, the trial court found that the evidence of D. W. 3 was not so clear and unambiguous as to lead to no other conclusion except that Munna Lal was son of real sister of Om Prakash. Besides, this solitary instance of adoption of his sisters son cannot amount to long usage which has obtained the force of law. Mulla has categorically commented that where the evidence shows that the custom was not valid in numerous instances, the custom could not be held to be proved. A custom derives its force from the evidence from long usage having obtained the force of law. . . . . . All that is necessary to prove is that usage has been acted upon in practice for such a long period with such invariability as to show that it has, by consent, been submitted so as to establish governing rule of a particular locality or community. These observations of the author were approved by the Honble Supreme Court in Gopal Chand v. Parveen Kumari, AIR 1952 SC 231 , and by the Privy Council in Subhani v. Nawab, AIR 1941 (PC ). ( 28 ) IN Subhanis case (supra), the Privy Council held as follows : "their Lordships are not convinced that Young C. J. s reference to the English rule, stated in blackstones Commentaries, that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" was either apposite or useful when applied to Indian conditions. It is undoubted that a custom observed in a particular district its force from the fact that it has, from long usage, obtained in that, the force of law. It must be ancient ; but it is not of the essence of this rule that its antiquity must in every case carried back to a period beyond the memory of man-still less that it is ancient in this English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular district. " ( 29 ) THE above observations of the Privy Council in Subhanis case (supra) were quoted with approval by the Honble Supreme Court and the Supreme Court held as follows : " (3) A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. (4) A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary law. " ( 30 ) IN yet another decision in Hem Singh and another v. Hakim Singh and another, AIR 1954 sc 581 , the Supreme Court observed that the custom recorded in the riwaj-i-am is in derogation of the general custom and those who set up such a custom must prove it by clear and unequivocal language. Similarly, when a custom is against the written texts of the Hindu law, then, in my view, one who sets up such a custom must prove it by a clear and unequivocal language. Similarly, when a custom is against the written texts of the Hindu law, then, in my view, one who sets up such a custom must prove it by a clear and unequivocal language. It may also be pointed out that the settled law is that for a valid adoption, not only the person adopting should be capable of lawfully taking in adoption ; but the person giving must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption. It is necessary that all these three conditions should be satisfied and that it is not sufficient that one of them be satisfied. In the case of Hem Singh (supra), Apex Court quoted with approval of some of the observations in Mullas Principles of Hindu Law at page 541 of XI edition with such observations in paragraph 434 to the following effect : "it has similarly been held that the texts which prohibit the adoption of an only son, and those which enjoin the adoption of a relation in preference to a stranger, are only directory ; therefore, the adoption of an only son, or a stranger in preference to a relation, if completed, is not invalid ; that in cases such as the above, where the texts are merely directory, the principle of factum valet applies, and the act done is valid and binding. " But just thereafter the following observations occurred in the same paragraph ;"but the texts relating to the capacity to give, the capacity to take, and the capacity to be the subject of adoption are mandatory. Hence the principle of factum valet is ineffectual in the case of an adoption in contravention of the provisions of those texts. " ( 31 ) A Division Bench of Calcutta High Court in Vishwa Nath v. Dhapu Devi, AIR 1966 Cal 13 , while quoting certain observations from the texts of Mullas Principles of Hindu Law observed that : "a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law, must be construed strictly. " ( 31 ) A Division Bench of Calcutta High Court in Vishwa Nath v. Dhapu Devi, AIR 1966 Cal 13 , while quoting certain observations from the texts of Mullas Principles of Hindu Law observed that : "a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law, must be construed strictly. It is further essential that it should be established that to be so by clear and unambiguous evidence, for it is only by means of such evidence that the Courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. . . . . A custom derives its force from the fact that it has, from long usage, obtained the force of law. It must be ancient ; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. It was held in para 50 of the judgment that, "a custom cannot be established by few instances of recent dates and reliance was placed upon the decision of K. Abbayya v. Venktayya, ILR 29 mad 24 and Hashim Ali v. Abdul Rehman, ILR 28 All 698. ( 32 ) IN the instant case, I find that the evidence adduced by the plaintiffs is highly insufficient and ambiguous so far as the existence of custom is concerned. On the basis of such evidence, it cannot be held that custom existed among the Vaish community of Hapur to which the parties belonged to adopt a sisters son. The lower appellate court has, however, relied upon two decisions. One is in the case of Ballo v. Ram Kishan and another. 1923 ALJ 478 and the other one is in the case of Devki Nandan v. Likkhi Ram, AIR 1960 Pandh 542. The lower appellate court has, however, relied upon two decisions. One is in the case of Ballo v. Ram Kishan and another. 1923 ALJ 478 and the other one is in the case of Devki Nandan v. Likkhi Ram, AIR 1960 Pandh 542. ( 33 ) IN Ballos case (supra), the facts were that in a suit for possession the defendant had pleaded that he had been adopted by one Kishor Mal in his life time some 24 years ago ; that there was a custom prevailing among the Agarwal Vaish to adopt a daughters son. In support of his plea the defendant had relied on the extract of Wajib-ul-arzis relating to some 13 villages in which a general custom to adopt daughters son or sisters son was recited, but there was no specific reference to Agarwal Vaish in them. In addition to above, the defendant had relied upon three judgments. In one case the custom was found to have not been established, in second case the trial court found that the custom had been proved, but on the appeal the High Court decided the case on another ground. In the third one and last case, the Additional Subordinate Judge of saharanpur in an elaborate judgment found that the custom had been fully established. 45 instances which had been proved in that case were cited. In the case before the High Court that is ballos case also 33 witnesses were examined by the defendant and 30 of them spoke of the general custom permitting the adoption of a daughters son prevailing among Agarwal Vaish and they were able to cite at least 34 instances out of which 20 instances were accepted by the Courts below as being instances where adoption either of a daughters son or a sisters son had taken place. Both the Courts below in that case accepted this evidence and the High Court in second appeal on the basis of the evidence adduced by the defendants, as concurrently accepted by the courts below, held that the Court was of the opinion that the defendant had satisfactorily established the custom set up by him, and in second appeal the Court was unable to hold that this evidence was legally insufficient to prove the custom or that the "courts below were not justified in accepting it. Though three judgments were cited before the trial court, in one of which 45 instances in support of the custom were cited. The matter related to district Saharanpur. However, the High Court on the basis of the evidence in the case in hand adduced by the defendant held that the evidence satisfactorily establish the custom set up by the defendant. It is not clear from the judgment at to which part of the State of Uttar Pradesh the said case related. There is nothing in the judgment to infer that the case related to district Meerut of which Hapur was part at the time when the adoption in the instant case is said to have been made by the adoptive father. The observation of the lower appellate court, that in case of Ballo the matter related to district Saharanpur whereas the present case relates to Hapur hence the decision is applicable, is not correct. The observations of the lower appellate court that it was not necessary to establish that the custom belonged to particular locality or community is not correct. As already pointed out above, according to the Mullas Principles of Hindu Law, the custom may be of community, or of a locality or it may be a family custom. What has been pleaded in the instant case, is that it was a local as well as class custom. This was required to be proved by cogent, clear and unambiguous evidence. The decision in Ballos case shall not be applicable for two reasons, firstly, that in that case sufficient evidence was given by the defendant who pleaded custom so as to establish it. It was accepted by the Court on fact, which is not the case in the present appeal. Secondly, the judgment in Ballos case does not relate to the local custom of hapur as pleaded by the plaintiffs. In my view, therefore, the lower appellate court has committed error in relying upon the decision in Ballos case (supra ). ( 34 ) THE other decision relied upon by the lower appellate court is of Punjab and Haryana High court which has only persuasive value. The matter related to Delhi and lower appellate court took the view that since Delhi is situated near Hapur, the decision in Devki Nandans case (supra) shall be applicable to the Vaish community of Hapur also. The matter related to Delhi and lower appellate court took the view that since Delhi is situated near Hapur, the decision in Devki Nandans case (supra) shall be applicable to the Vaish community of Hapur also. I think the lower appellate court has committed error in relying upon the decision in Devki Nandans case. It may be pointed out here that the Privy Council in two cases pointed out that in Punjab the Hindu Law of mitakshara was modified by custom prevalent in Punjab. In Ram Kishor v. Jai Narain, 48 IA 405 : AIR 1922 PC 2, the question was whether in Hindu caste of dhusars in Gudgaon district of punjab adoption of an orphan was valid. According to the customary law of Punjab modifying the rules of Hindu law in this respect, there being a recorded custom in Riwaz-i-am that adoption of an orphan in Gudgaon district of Punjab was regarded as valid. In another case, Durga Devi v. Shambhu Nath, AIR 1924 PC 113, the parties were Kashmiri Brahmins residing in Punjab. There was evidence that among the Kashmiri Brahmins adoption of a boy who had already been invested with sacred thread was invalid, but according to the Customary Law in the State of punjab adoption of a boy invested with sacred thread was valid. Their Lordships referred to section 5 of the Punjab Law Act, 1872 by which the validity of an adoption in Punjab depends on custom applicable to the parties. In view of that prevalent law and in view of the fact that validity of adoption of the boy had been accepted by friends of the family and other men of the same community, the adoption was held to be valid. It is evident from the last cited decision that in Punjab the basis of application of Customary Law is Section 5 of the Punjab Laws Act of 1872 under which a question relating to succession or adoption or any religious usage, the rule or decision shall be the custom applicable to the parties concerned, insofar as it is not contrary to the justice, equity and good conscience of the Hindu laws in case the parties are Hindu insofar as such law is opposed to the provisions of the Act or rule has been modified by such a custom. In the case of Sukh Deo Sahi and others v. Kapil Dev Singh and others, AIR 1960 Cal 597, brief facts in that case were that Ram Chandra Pandey claimed to be adopted son of Beeru Maharaj the Punjabi Brahmin. The claim of adoption of Ram Chandra Pandey by Beeru Maharaj was contested. One of the main grounds was that Ram Chandra Pandey belonged to Ballia district in u. P. and his father was governed by Benaras school of law and he could not give Ram Chandra pandey in adoption validly after Upnayan ceremony. The Court held that so far as Beeru maharaj is concerned, he might validly take a boy in adoption the boy whose sacred thread ceremony has been performed. But the evidence was that Ram Chandra Pandey had been invested with sacred thread before the alleged adoption by Beeru Maharaj. In fact he came and joined as a servant of Beeru Maharaj. The Court held that the law is that for a valid, adoption, not only person adopting should be capable of lawfully taking in adoption, but the person giving must be capable of lawfully giving in adoption and the person given in adoption must be lawfully taken in adoption. Thus, the custom prevalent in the State of Punjab in particular caste or tribe or the district to adopt the person who had been invested with sacred thread was held to be not applicable to a person who belonged to Brahmin community of Ballia district in U. P. The customary Law in the State of Punjab is recorded in Riwaz-i-am which is not applicable to the state of Uttar Pradesh. Therefore, the decision rendered by the Punjab and Haryana High Court in a case relating to the State of Punjab or Delhi cannot be pressed in service for holding that such a custom existed among the Vaish community of Uttar Pradesh also. In my view, therefore, the lower appellate court has misdirected itself in placing reliance upon the two decisions referred to above. I may refer to the decision of Honble Supreme Court in Saraswati Ammal v. Jagdammal and another, 1953 SCR 939 , the Court held that custom cannot be extended by analogy. It must be established inductively and not deductively, and it cannot be established by a priori method. It cannot be matter of mere theory. I may refer to the decision of Honble Supreme Court in Saraswati Ammal v. Jagdammal and another, 1953 SCR 939 , the Court held that custom cannot be extended by analogy. It must be established inductively and not deductively, and it cannot be established by a priori method. It cannot be matter of mere theory. It must always be a matter of fact and one custom cannot be deducted from another. ( 35 ) I, therefore, hold that the plaintiff/respondents have failed to successfully discharge the burden of proof to establish that there existed a custom in the Vaish community of township of hapur and around it to adopt the son of sister. Question No. 2 : ( 36 ) AS already pointed out earlier, P. W. 2. Murari Lal is the sole witness of the ceremony of adoption. During his examination-in-chief, the witness had stated that Janew ceremony was performed at the time of adoption ceremony. During cross-examination, he categorically stated that first of all Janew ceremony was performed and around half of an hour or an hour after the janew ceremony, the adoption ceremony was performed. On the basis of such admission/ statement of P. W. 2, the validity of the adoption is challenged on the ground that after performance of Upnayan ceremony adoption of boy governed by Benaras school of Hindu law, was invalid. There does not appear to be any dispute with regard to the legal position. ( 37 ) THE earlier decision in this regard is the decision in Ganga Sahai v. Lekhraj, ILR 9 All 256, wherein it was held that the performance of Upnayan (Janew ceremony) is absolute bar to the adoption. The decision in Ganga Sahais case was followed by a Division Bench of this Court in gopi Nath v. Musammat Krishni and others, AIR 1927 All 634, in which it was held that the view of law laid down in the case of Ganga Sahai v. Lekh Raj, has prevailed for a long number of years in this Court and we are bound to follow it. We may further point out that the view is not necessarily based on the passage of Kalika Puran which has been disputed. We may further point out that the view is not necessarily based on the passage of Kalika Puran which has been disputed. The Dattak mimansa which is a treatise of high authority in the Benaras school, has been recognised by the privy Council as having acquired by long acceptance and independent authority ; Bhagwan singh v. Bhagwan Singh, 26 IA 153 : 1899 21 All 412 at 419. Even according to the Dattak mimansa, the performance of the Upnayan (Janew ceremony) is an absolute bar to the adoption. The same view was taken in the case of Surabala Devi v. Sudhir Kumar, AIR 1944 (31) Cal 265, in which it was held that in Bengal, adoption of a son belonging to the twice born class made after Upnayan ceremony has already been performed in the family of birth, is not valid. The decisions in the aforesaid three cases ILR 9 All 253, AIR 1927 All 634 and AIR 1944 Cal 265 were followed by the Calcutta High Court in the case of Sukhdeo Sahi and others v. Kapil Dev singh and others. AIR 1960 Cal 597. It was held in Lala Babu Ram v. Smt. Kishan Devi, AIR 1963 All 509 that : "it is too late in the date to challenge the correctness or authenticity of the texts of Dattak chandrika and Dattak Mimansa. The Privy Council, the Supreme Court and the High Courts in india have held these treatises to be a very good source of law of adoption amongst the Hindus, but caution is required in accepting the class in Dattak Chandrika or Dattak Mimansa, when they deviate from and add to Smritis. " ( 38 ) THEREFORE, the consistent view has been that unless there is a custom to the contrary, the adoption of a boy who has been invested with sacred thread (Janew) in the family of his birth, there is absolute bar of such a boy to be given or taken in adoption. The trial court on consideration of evidence of P. W. 2, returned a finding that adoption of Chandra Bhan was invalid. The lower appellate court, however, observed in its judgment that the witness (P. W. 2)was an old man of 82 years and he might have committed a mistake in stating whether the upnayan ceremony was performed prior to the adoption or after the adoption. The lower appellate court, however, observed in its judgment that the witness (P. W. 2)was an old man of 82 years and he might have committed a mistake in stating whether the upnayan ceremony was performed prior to the adoption or after the adoption. It is also observed by the lower appellate court that when the adoption is an old one, in view of various decisions of the High Courts the evidence should not be scrutinised with strictness. It was also observed by the lower appellate court that the documentary evidence shows that some of the relations of jagannath had treated and accepted Chandra Bhan as adopted son of Jagannath. The evidentiary value of the document relied upon by the plaintiffs shall be considered while deciding question no. 4. It would suffice to state here that when the admission of P. W. 2 is clear and unambiguous, there was no warrant for the lower appellate court to infer that there might have been mistake on the part of the P. W. 2 in stating as to which of the two ceremonies (Upnayan ceremony and adoption ceremony) was performed first. It is no doubt true that the adoption had taken place around 60 years prior to the deposition of the P. W. 2, but the admissions made by P. W. 2 during his cross-examination go unchallenged and the same were clear and umambiguous. There is no sufficient ground for interpreting the admissions made by him in a different manner. The Apex court in Madhusudan Das v. Smt. Narayani Bai, AIR 1983 SC 114 , held that in an appeal against the trial court decree, when the appellate court considers an issue turning on oral evidence, it must bear in mind that it does not enjoy the power which the trial court had in having the witness before it and observing the manner in which they gave their testimony. Then there is a conflict of oral evidence on a matter in any issue and its resolution turns upon the credibility of the witness, the general rule is that the appellate court should permit the finding of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of particular witness has escaped the notice of the trial court or there is sufficient balance of improbability to displace its opinion as to where the credibility lies. ( 39 ) IN the instant case, no such factor or circumstance was available on the basis of which the lower appellate court could have displaced finding of fact arrived at the trial court on the basis of the clear and unambiguous statement/admission made by P. W. 2. The finding of fact has been displaced by lower appellate court only on conjectures and surmises and that the witness being quite an old one might have committed error in stating as to which of the two ceremonies was performed first. This was not permissible and was against the rule of appreciation of evidence. Having considered the material before me and the arguments advanced, I hold that Hindu belonging to the regenerated class could not be given or taken in adoption after performance of the Upnayan ceremony and for this reason the adoption of Chandra Bhan was invalid. Question No. 4 : ( 40 ) IN support of their claim that there was a valid adoption and relations of Jagannath son of paras Ram had been treating Chandra Bhan as adopted son of Jagannath, the plaintiffs have filed and relied upon three documents, which are paper Nos. 55a. 56a and 57a. The first document is a registered sale deed executed by one Lakhmi Chand in favour of Chandra Bhan on 18. 10. 1939. There is a recital in the document to the effect that Lala Chandra Bhan was adopted son of Lala jagannath. Paper No. 56a is a general power-of-attorney executed by Smt. Shanti Devi widow of Chandra Bhan whereby Lala Anand Swaroop son of Lala Paras Ram (brother of Jagannath adoptive father of Chandra Bhan) was appointed attorney on behalf of Smt. Shanti Devi. In this document also, there is recital that Smt. Shanti Devi is widow of Lala Chandra Bhan adopted son of Lala Jagannath. In this document also, there is recital that Smt. Shanti Devi is widow of Lala Chandra Bhan adopted son of Lala Jagannath. The third document, paper No. 57a is a deed of partition between Anand swaroop son of Paras Ram on his own behalf and on behalf of Shanti Devi being her power-of-attorney holder. In this document also, there is recital that Smt. Shanti Devi is widow of Chandra Bhan adopted son of Lala Jagannath. Paper Nos. 56a and 57a are also registered documents, which were executed in June 1941 and July 1947 respectively. There is no dispute as to the admissibility of these documents in evidence and admittedly the defendants/appellants or their predecessors-in-interest were not parties to these documents nor they are signatories as witnesses in these documents. The documents have not been admitted by the defendants/ appellants. ( 41 ) THE recitals in document are normally used as admission of a party to the proceedings in accordance with the provisions of the Indian Evidence Act or the same can be used as evidence of long recognition of the claim of the adopted son by the adoptive father or his close relations. Under Section 21 of the Indian Evidence Act, admissions are relevant and may be proved as against the person who makes them or his representative-in-interest. The admissions cannot be proved by or on behalf of the person who makes them or by his representative-in-interest except in three circumstances provided in Section 21 of the Indian Evidence Act. Admittedly, the recitals in the three documents are not admissions of the defendants-appellants ; they are admissions of the plaintiffs predecessor-in-interest or one of the close relations of the defendant-appellant No. 1. Therefore, such admissions could not be proved unless covered by any of the three exceptions under Section 21 of the Indian Evidence Act. Learned counsel for the respondents has not been able to point out that the admissions contained in the recitals in the three documents are in any manner covered by three exceptions of Section 21 of the Indian evidence Act. The trial court did not accept these documents as proving the ceremony of adoption. Learned counsel for the respondents has not been able to point out that the admissions contained in the recitals in the three documents are in any manner covered by three exceptions of Section 21 of the Indian evidence Act. The trial court did not accept these documents as proving the ceremony of adoption. The lower appellate court has, however, observed in its judgment that all these documents establish that the predecessor-in-interest of the defendants had admitted and treated chandra Bhan as adopted son of Jagannath and there was no reason to disbelieve the recitals in these documents and the same were made at a time when there was no dispute about the adoption of Chandra Bhan. Here I think the lower appellate court has committed error in treating the recitals in the said document as admission of Predecessor-in-interest of the defendants. It has already been pointed out above that paper No. 55a is a sale deed executed by one Laxmi chandra in favour of Lala Chandra Bhan. The pedigree reproduced at the beginning of the judgment does not show in any manner that Laxmi Chand was at all even distantly related to the parties of the present suit. No oral evidence has been led showing that Laxmi Chand was in any manner Predecessor-in-interest of the defendants-appellants. Therefore, this document at best can be treated as admission of Laxmi Chand or as admission of Lala Chandra Bhan in whose favour the sale deed was executed. This document would, therefore, not help the plaintiffs-respondents either as being admission of the defendants or their predecessor-in-interest or evidence of long recognition of adoption of Lala Chandra Bhan by Jagannath son of Paras ram or by close relations of the defendants or by Jagannath son of Paras Ram. Paper No. 56a is power-of-attorney executed by Smt. Shanti Devi in favour of Lala Anand Swaroop son of Paras ram. Anand Swaroop was one of the four sons of Paras Ram and by this document Smt. Shanti devi widow of Chandra Bhan had appointed Anand Swaroop as her general power-of-attorney holder. No doubt Anand Swaroop, one of the close relations of Jagannath, by recital in this document recognized Chandra Bhan as adopted son of Lala Jagannath, yet it cannot be treated as admission of Predecessor-in-interest of the defendants-appellants. No doubt Anand Swaroop, one of the close relations of Jagannath, by recital in this document recognized Chandra Bhan as adopted son of Lala Jagannath, yet it cannot be treated as admission of Predecessor-in-interest of the defendants-appellants. Similar is the position with regard to paper No. 57a, which relates to the partition of certain properties to which the defendants or their Predecessor-in-interests are not parties. The partition was effected between anand Swaroop and Smt. Shanti Devi on one side and Trilok Nath and others on the other side. These documents, therefore, cannot be pressed in service as admissions of the predecessor-in-interest of the defendants. They can at best be considered or used as evidence of recognition of the factum of adoption of Chandra Bhan by Jagannath son of Paras Ram. ( 42 ) AT the outset, it may be pointed out that even though the factum of adoption is found to be proved by oral evidence or by other evidence, yet if the adopted son was not capable of being given in adoption, long recognition of the son as adopted son would not amount to estoppel against law. I may refer a decision of the Division Bench of this Court in Lala Babu Ram v. Smt. Kishan Devi, AIR 1963 All 509 . In paragraph 96 of the judgment, the Court held that it is well established that there can be no estoppel against law. We have already held above that under the law, the defendant-appellant could not have been validly adopted by Lala Madan Gopal. Consequently, any supposed conduct of the plaintiff-respondent cannot estop her from challenging the validity of the adoption of the defendant. That was a case in which the plaintiff herself had participated in the adoption ceremonies. She was also a party to certain documents in which the defendant-appellant had described himself as the son of Lala Madan Gopal yet, the court held that these circumstances cannot be a ground to estop her from challenging the adoption. On behalf of the respondents, reliance has been placed on decision of the Supreme court rendered in Lala Devi Prasad v. Smt. Tribeni Devi and others, AIR 1970 SC 1286 . On behalf of the respondents, reliance has been placed on decision of the Supreme court rendered in Lala Devi Prasad v. Smt. Tribeni Devi and others, AIR 1970 SC 1286 . That was a case in which the first defendant had pleaded to be the adopted son of one Gopal Das and it was also pleaded that in the community of Gopal Das there was a custom of taking a child in adoption on the very day of his birth. The Court had found that the defendant had not been able to establish the custom pleaded by him nor he was able to adduce any satisfactory evidence about the actual adoption. It may be pointed out at this stage that the validity of the adoption of a child on the very day of his birth was not under challenge. It is not shown that such an adoption was prohibited by Hindu law unless a custom was prevalent. The observation of the Honble supreme Court that in case of a Hindu long recognition of a adopted son, raised even a stronger presumption in favour of the validity of his adoption cannot be taken to mean that an adoption which is prohibited by law shall be treated as valid adoption. Besides this, that was a case in which there was ample evidence to the effect that the adopted son had without any controversy succeeded to the estate of his adoptive father and enjoyed the same till his death and a number of documents during his life time and after his death were framed upon the basis of the adoption. There was document of admission of Shyam Behari Lal to school and the application for admission was signed by Gopal Das in which there was recital that Shyam Behari Lal is son of gopal Das. There was another document with certified copy of the deposition of Gopal Das given in a regular suit in the Court of Subordinate Judge, Faizabad and in his deposition, Gopal das admitted in more than one place that Shyam Behari Lal was his adopted son. There was also copy of the nomination paper filed by Shyam Behari Lal for the election of Municipal Council and Gopal Das was one of the persons who had proposed his name and in the nomination paper shyam Behari Lal had described himself as son of Gopal Das. There was also copy of the nomination paper filed by Shyam Behari Lal for the election of Municipal Council and Gopal Das was one of the persons who had proposed his name and in the nomination paper shyam Behari Lal had described himself as son of Gopal Das. There were other documents in which there were admission of Gopal Das the adoptive father that Shyam Behari Lal was adopted son of Gopal Das. Considering all those circumstances, the Honble Court held that even though Shyam Behari Lal has not been able to substantiate the custom pleaded by him nor he has been able to adduce any direct evidence relating to the factum of adoption, yet there was satisfactory evidence of his being recognized as adopted son by the adoptive father and close relations. In these circumstances, the Honble Supreme Court held as follows : "in case of a Hindu, long recognition as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. . . . . In the case of an ancient adoption evidence showing that the body was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son: the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. " ( 43 ) IN the instant case except recitals in the aforesaid, there is no evidence showing that at any point of time Jagannath the adoptive father of Chandra Bhan had ever treated him as adopted son. Except Anand Swaroop also, there is no other evidence showing that close relations and friends of Jagannath had treated Chandra Bhan as adopted son of Jagannath son of Paras Ram. I may point out here that any recital In a document is, of course, a piece of evidence admissible in accordance with the provisions of the Indian Evidence Act. There is, however, no rule of law or prudence laying down the principle that such a statement must be treated as conclusive proof of the factum alleged. In Banwari Lal v. Trilok Chand and others, AIR 1980 SC 419 , the facts were that there were two brothers, namely, Govind Ram and Jagannath, who constituted a joint Hindu family having some joint assets. Jagannath died in the year 1940 leaving behind his widow who succeeded to the share of Jagannath having life interest. Govind Ram died in the year 1952 leaving a Will under which a estate (specified in the will) were to go to his brothers widow (Jagannaths wife) as a life-tenant with no power of alienation and after her death, it was to go to banwari Lal, his adopted son. The widow died in 1955 leaving a Will under which, she also devised the entire properties to Banwari Lal described as Govind Rams adopted son. A suit was filed by the plaintiff Banwari Lal, the adopted son claiming the properties on the basis of two wills which claim of the defendant was resisted by the plaintiff on the ground that the two wills were forged documents. The High Court in appeal was of the opinion that the recital in the Will of Govind Ram appellant-defendant No. 1 being his adopted son was not sufficient to prove the adoption which, therefore, was held not to have been established. That was a case in which the adoption was alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witnesses who were present at the time of actual adoption and had seen the ceremony of giving and taking would normally have been available. That was a case in which the adoption was alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witnesses who were present at the time of actual adoption and had seen the ceremony of giving and taking would normally have been available. However, no attempt was made to produce any such evidence nor any explanation was made why no such witness was forthcoming. It was in these circumstances, the Honble Supreme Court held that : "different considerations may have prevailed if proof of adoption was required to be submitted to the Court after a very long period of its having taken place, which is not the case here. The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratap Narain Singh. AIR 1927 Pat 61, cited by learned counsel for defendant No. 1 but there is no rule of law or prudence laying down the principle that such a statement must be regarded as conclusive, and this was also the view taken in that case. And the burden of proof of adoption was heavy on the defendant. " Therefore, the recital in a document cannot conclusively prove the factum of adoption. It is simply a piece of evidence, which has to be considered along with other evidence. Question No. 4 is decided accordingly. ( 44 ) FOR the foregoing reasons and discussions. 1 am of the view that the preliminary objection raised by Sri Madhyan holds good only with regard to question No. 3 as pressed by Sri Manoj mishra. Other questions raised are not pure questions of fact. They are substantial questions of law. In view of findings on question Nos. 1, 2 and 4 pressed by Sri Manoj Mishra learned counsel for appellants, the judgment of the lower appellate court cannot be upheld. The appeal is, therefore, allowed and the judgment and decree passed by the lower appellate court is set aside with costs. The judgment and decree passed by the trial court is restored. .