JUDGMENT 1. Makhan Singh, who died during the pendency of this second appeal and whose legal representatives are present appellants, has knocked the doors of this Court by preferring this second appeal under section 100 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 18th March, 1997 passed by the learned Additional District Judge, Shujalpur, District Shajapur dated 18th March, 1997 whereby Civil Appeal No. 75-A/95 of defendants has been allowed by reversing the judgment and decree passed by learned Civil Judge Class-I, Shujalpur in Civil Suit No. 168-A/90 decreeing the suit of plaintiff on 29.3.1993 has been reversed and set aside, as well as dismissing Civil Appeal No. 12-A/95 of plaintiff Makhan Singh for the grant of mesne profit. 2. Makhan Singh whose LRs are present appellants filed suit for partition and delivery of possession in respect to the immovable property, the description whereof has been mentioned in Para 1 of the plaint against defendants. According to the plaintiff, Mst. Muniyabai widow of Ganpat was the Bhoomiswami of the suit property on the death of her husband Ganpat. This position has not been disputed by the parties that Ganpat died in the year 1940. Muniyabai also died on 18.6.1979. The family tree of the parties is as under: Balwant Singh Ganpat (dead) Kanhaiyalal (dead) Muniyabai (Wd/o Ganpat) Devbaksh Makhan Singh (Def.No.2) (Plaintiff) Parvat Ajudhyabai Ramprasad (dead) (dead) Bapu Mangilal Mohan Sajjan Singh Pappu (dead) (dead) (Def.4) (Def.1) 3. According to the plaint averments, plaintiff and defendant No.2 Devbaksh are the sons of Kanhaiyalal, who was the real brother of Ganpat and whose wife was Muniyabai. Ganpat was having a son namely Parvat, who was having two sons Bapu and Mangilal. Parvat, Bapu and Mangilal died long back. Ajudhyabai was the daughter of Ganpat who had died during the life time of her mother Muniyabai widow of Ganpat. 4. It is the further case of plaintiff that in order to grab the property of Muniyabai defendant No.2 Devbaksh, in collusion with Patwari of the village got the name of defendant No.1 Sajjan Singh mutated on the basis of alleged adoption by keeping plaintiff in dark and concealing this fact from him. It has also been pleaded by the plaintiff that during the life time of Muniyabai the suit property was recorded in the name of Ajudhyabai, which is also wrong and was without any conveyance deed. It has also been pleaded by the plaintiff that during the life time of Muniyabai the suit property was recorded in the name of Ajudhyabai, which is also wrong and was without any conveyance deed. Indeed the suit property was of Ganpat and after his death in the year 1940 the suit property was succeeded by his widow Muniyabai. 5. After filing of the written statement plaintiff came to know that according to defendants grand sons of defendant No.2 Devbaksh namely Mohanlal and Sajjan Singh were given in adoption by their father Ramprasad to Muniyabai and Ajudhyabai respectively. The plaintiff thereafter amended his plaint by adding para 5A in the plaint that neither defendant No.4 Mohanlal was given in adoption to Muniyabai nor defendant No.1 Sajjan Singh was given in adoption to Ajudhyabai and the alleged adoptions were not made in accordance with law and the customs and these defendants are not the legally adopted sons of Muniyabai and Ajudhyabai and, therefore, no rights have been vested in defendant 1 and 4. It has been prayed by plaintiffs that since the suit land was of Muniyabai and after her death plaintiff and defendant No.2 who are the real brothers became joint owner of the suit property and, therefore, by filing suit it has been prayed that the suit property be partitioned and possession of half share be delivered to plaintiff. 6. The defendant No.1 Sajjan Singh and defendant No.2 Devbaksh filed joint written statement on 21.10.1981 and after Mohanlal was arrayed as defendant No.4, he had filed separate written statement on 24.4.1990. The defendants No.1 and 2 namely Sajjan Singh and Devbaksh in para 1 of their written statement firstly pleaded Ajudhyabai to be the widow of Parvat son of Muniyabai and Ganpat but by way of amendment deleted the word widow and amended by pleading that Ajudhyabai was the sister of Parvat which would mean that she was the daughter of Muniyabai. According to these defendants, Muniyabai took Mohan in adoption vide registered adoption deed dated 21.7.1976 from his natural father Ramprasad son of Devbaksh and similarly another son of Ram prasad namely Saijan Singh was given in adoption by Ramprasad to Ajudhyabai vide registered adoption deed dated 21.7.1976 and eventually Mohanlal and Sajjan Singh became adopted sons of Muniyabai and Ajudhyabai respectively. Since the suit property is of Muniyabai, Mohanlal being the adopted son of Muniyabai and Sajjan Singh being the adopted son of Ajudhyabai who was the daughter of Muniyabai and who died during the life time of Muniyabai, becan1e Bhoomiswami of the suit property and, therefore, the present suit be dismissed. 7. The learned trial Court on the basis of averments made in the plaint and denial in the written statement framed necessary issues. The parties thereafter led their evidence. The learned trial Court on the basis of oral and documentary evidence placed on record came to hold and found the suit to be proved eventually decreed the suit but did not pass the decree of mesne profits. 8. Defendants Sajjan Singh, Devbaksh and Mohanlal filed first appeal against the judgment and decree passed by the learned trial Court praying therein that the suit of plaintiff be dismissed. The appeal of defendants was registered as Civil Appeal No. 75-A/95 before learned First Appellate Court. Plaintiff also filed Civil Appeal No. 12-A/97 against that part of the judgment of learned trial Court whereby mesne profit have not been allowed to him. 9. The learned First Appellate Court decided both the appeals by a common judgment. The appeal of plaintiff for the grant of mesne profit has been dismissed while the appeal of defendants has been allowed and plaintiff's suit has been dismissed. 10. In this manner the present second appeal has been filed by plaintiff Makhan Singh. During pendency of the second appeal plaintiff-appellant Makhan Singh died, as a result of which his LRs were brought on record as appellants. 11. On 19.11.1997 this Court admitted the appeal on the following substantial questions of law : (a) "Whether the first appellate Court was justified in holding that the suit filed by the appellant, was barred by limitation"? (b) Whether the first appellate Court was justified in holding that Ayodhyabai had also succeeded along with her mother to the estate left by her father Ganpat who died in 1940 when Qanoon Mal Gwalior was in force"? and (c) Whether under the facts and in the circumstances of the case, the first appellate Court was justified in holding that respondents No.1 and 3 were legally adopted sons of Ayodhyabai and Muniyabai, respectively"? 12. and (c) Whether under the facts and in the circumstances of the case, the first appellate Court was justified in holding that respondents No.1 and 3 were legally adopted sons of Ayodhyabai and Muniyabai, respectively"? 12. It has been argued by Shri M.L. Agrawal, learned senior counsel for the appellant that the suit property is situated in Shujalpur, which was a part of earstwhile Gwalior State and since Ganpat, who was the owner of the agricultural land (suit property) and who died in the year 1940, at that juncture the law prevailing was Qanoon Mal of Gwalior State in which the daughter was not having any right to succeed the property of his father and, therefore, Ajudhyabai being the daughter of Ganpat did not succeed the property in dispute but the entire property devolved in his widow Muniyabai according to section 253 of Qanoon Mal of Gwalior State Samvat 1983. In plaint para 3 specific pleading of plaintiff's is that Ajudhyabai died in the life time of Muniyabai and, therefore, since defendants No.1 and 4 Sajjan Singh and Mohanlal never taken an adoption by Ajudhyabai and Muniyabai respectively, therefore, the property left by Ganpat and which was devolved in Muniyabai after her death, devolved in plaintiff and his brother defendant No.2 Devbaksh and, hence, rightly suit has been filed by plaintiff claiming one half share in this suit property. 13. The further contention of learned senior counsel for appellant is that it was not in the knowledge of plaintiff that any adoption of defendants 1 and 4 by Ajudhyabai and Muniyabai respectively has taken place. On the contrary on going through the plaint averments it is revealed that plaintiff was under impression that some story of adoption has been cooked by defendant No.2 Devbaksh that defendant No.1 Sajjan Singh had gone in adoption by Parvat. However, when plaintiff came to know about the story of adoption set up by defendants of taking Sajjan Singh and Mohanlal in adoption by Ajudhyabai and Muniyabai respectively the plaint was amended, therefore, according to learned senior counsel the suit cannot be said to be time barred. Apart from this it has also been put forth by learned senior counsel that if the suit for possession is being claimed of the property under alleged adoption, article 57 has no application because the relief is merely incidental to the principal relief claimed in the suit. Apart from this it has also been put forth by learned senior counsel that if the suit for possession is being claimed of the property under alleged adoption, article 57 has no application because the relief is merely incidental to the principal relief claimed in the suit. In this context he has invited my attention to the Division Bench decision of this Court Jamnadas v. Mst. Radhabai [1963 JLJ 817 = AIR 1963 MP 348 ] and, therefore, the suit of plaintiff cannot be said to be barred by time as held by the learned First Appellate Court. 14. By putting his emphasis on substantial question of law (B) it has been argued by learned senior counsel for the appellant that admittedly Ganpat was the owner of the suit property and this is also an admitted fact that he died in the year 1940. The suit property being agricultural land and is situated in district Shajapur, which was a part of erstwhile Gwalior State, and therefore, in the year 1940 when Ganpat died the revenue law of Gwalior State, Qanoon Mal was applicable and under section 253 of the said law on the death of Kashtkar Sakitlll Milkiyat or Mallrusi Kashtkar (holder) his property would devolve in his widow, and Ajudhyabai being the daughter of Ganpat, would not succeed the property and on coming into force of Hindu Succession Act, 1956 (in short "1956") Muniyabai became absolute owner under section 14 of the Act of 1956. Therefore, since Ajudhyabai died in the life time of her mother Muniyabai, she did not acquire any right in the suit property. 15. By putting a deep dent on the authenticity and hallmark on the adoption it has been argued by learned senior counsel for the appellant on substantial question (C), that unless and until the requisites of section 6 of Hindu Adoptions and Maintenance Act, 1956 (in short "the Adoptions and Maintenance Act") is proved by defendants, since they are coming forward with a story of adoption of defendants No.1 and 4, therefore, it cannot be said that there was any valid adoption. It has also been put forth by learned senior counsel that no where in the. It has also been put forth by learned senior counsel that no where in the. registered adoption deed there is any iota that the wife of Ramprasad who is the natural mother of defendants 1 and 4 gave any consent to give her sons in adoption and this fact is neither mentioned in the adoption deed nor it has been pleaded in the written statement and, therefore, it cannot be said that defendants 1 and 4 were given in valid adoption to Ajudhyabai and Muniyabai respectively. Thus, according to learned senior counsel Ramprasad who is the natural father of defendants 1 and 4 alone was not competent to give his sons in adoption. By inviting my attention to the finding of learned trial Court particularly para 30,31 and 32. It has been argued by learned counsel that if the finding is taken into consideration in proper perspective which is based on correct appreciation of evidence it is revealed that before the execution of documents of adoption deed Ex. 0-1 and 0-2, the mandatory ceremony of giving and taking which constitute a valid adoption was not taken place though this fact is mentioned in this document and, therefore, it cannot be said that there was a valid adoption and defendants 1 and 4 were validly given in adoption and were transferred from the family of natural parents of defendant 1 and 4 to the family of Ajudhyabai and Muniyabai. Learned senior counsel has also put forth before me that there is material discrepancy in the evidence of defendants' witnesses, the place where the adoption ceremony took place and, therefore, it cannot be held that valid adoption took place. In support of his contention he has invited my attention to the decision of Supreme Court Mudhusudan Das v. Narayanibai [1983 JLJ 131 = AIR 1983 SC 114 ]. It has also been put forth by learned senior counsel that the documents of registered adoption deed Ex. 0-1 and 0-2 are also not proved because it has not been proved by any witness saying that after these documents were written they were read over and explained to Muniyabai and Ajudhyabai and after hearing and understanding the contents thereof they put their thumb impression on the respective documents and, therefore, these documents are also not proved. 0-1 and 0-2 are also not proved because it has not been proved by any witness saying that after these documents were written they were read over and explained to Muniyabai and Ajudhyabai and after hearing and understanding the contents thereof they put their thumb impression on the respective documents and, therefore, these documents are also not proved. In support of his contention, learned counsel has placed reliance on Single Bench decision of this Court Bansilal v. State of M.P., 2003 (4) MPLJ 169. Learned senior counsel has also placed heavy reliance on the decision of the Supreme Court Jaysingh v. Shakuntala, 2002 (3) SCC 634 and argued that actual or physical giving and taking of the child concerned is an essential feature of a valid adoption under the Adoptions and Maintenance Act and if the adoption itself has given cause for suspicion, it would be hazardous to place reliance on the said document. 16. Learned senior counsel on the same proposition also placed reliance on Single Bench decision of this Court Bholooram and others v. Ramlal and others [ 1989 JLJ 387 ], as well as on Govind Prasad Agrawal v. Chhannobai [1991 (I) MPWN 55]. 17. By hammering on the findings rendered by learned First Appellate Court it has been argued that merely on the basis of presumption as envisaged under section 16 of the Adoptions and Maintenance Act, it cannot be presun1ed that on account of registration of adoption deeds, the alleged adoptions are proved. On these premised submissions it has been argued by learned senior counsel for appellants that by allowing this appeal the judgment and decree passed by the learned First Appellate Court dismissing the suit of plaintiff be set aside and the judgment and decree passed by the learned trial Court decreeing the suit be restored. 18. Combating the aforesaid submissions of learned senior counsel for the appellant, it has been argued by Shri Chafekar learned senior counsel for respondents that plaintiff was quite aware about the factum of the adoption of defendants No.1 and 4 which took place by adoption ceremony in the village followed by the registration of the document of adoption deeds Ex. D-l and D-2 on 21.7.1976 and, thereafter the names of defendants 1 and 4 were also mutated in the year 1979 and, therefore, the suit which has been filed on 16.3.1981 the same is ex facia time barred. D-l and D-2 on 21.7.1976 and, thereafter the names of defendants 1 and 4 were also mutated in the year 1979 and, therefore, the suit which has been filed on 16.3.1981 the same is ex facia time barred. By inviting my attention to the evidence of defendants' witnesses it has been put forth by learned senior counsel for the respondents that several persons were invited to participate in the adoption ceremony of defendants 1 and 4 and, therefore, in view of the decision of Supreme Court Laxman Singh Kothari v. Smt. Roop Kunwar, AIR 1961 SC 1378 it should be held that ceremony of giving and taking has been validly taken place because no particular form is prescribed for the ceremony and the object of adoption is corporeal giving and receiving in adoption is to secure due publicity. By inviting my attention to the testimony of attesting witness Mohanlal (DW3) (not defendant No.4 but a witness) it has been argued that thumb impressions were put by Muniyabai and Ajudhyabai on Ex. D-l and D-2 before him and, therefore, these two documents are emphatically proved and if that is the position, the statutory strong presumptive value under section 16 of the Adoptions and Maintenance Act would come into play and the Court shall presume that the adoption has been made in compliance with the provisions of the Adoption and Maintenance Act unless and until it is disproved and, therefore, according to learned senior counsel it was for plaintiff to disprove that there was no valid adoption. In support of his submission learned senior counsel has placed heavy reliance on the Division Bench decision of this Court Naresh v. Ichrajbai [ 1979 JLJ 314 ]. By taking the aid of Privy Council decision Seth Biradh Mal and others v. Sethani Prabhabhati Kunwar and others, AIR 1939 Privy Council page 152, it has been argued that it is always not necessary to perform the ceremony of giving and taking physically and if it is understood that person being taken in adoption is given in adoption, it is the literal compliance of the law. Hence, it has been argued by learned senior counsel for the respondents that learned First Appellate Court after taking into consideration the entire oral and docun1entary evidence from every angle has dismissed the suit of plaintiff-appellants and for no rhyme or reason the judgment should be set aside and this appeal be dismissed. Regarding substantial question of law (A) 19. On going through the pleadings of defendants in the written statement no where it is revealed that they have raised any plea about the limitation by pleading that the suit is time barred. Since, there is no pleading of defendants in this regard, the issue was also not struck by learned trial Court. It appears from the judgment of learned trial Court that the plea of limitation was not even raised at the time of arguments and, therefore, learned trial Court did not deal this aspect of the matter. But merely because the plea of limitation has not been raised in the written statement and was not pressed in the trial Court would in itself is no ground that it cannot be raised at a later stage. In this context section 3 of the Limitation Act is very clear wherein it has been enacted that if a suit instituted, appeal preferred and application made after the prescribed period it shall be dismissed, although limitation has not been set up as a defence subject to the provisions contained in section 4 to 24 (inclusive). Thus, according to me there is no bar under the law to raise this plea even at a later stage. The question would now arise is to whether suit, indeed is barred by prescribed period of limitation. The learned First Appellate Court in para 16 of the impugned judgment has held that the adoption deeds Ex. D-1 and D-2 were registered on 21.7.1976 and the suit is filed on 16.3.1981 which is not within three years of prescribed period of limitation and no application under section 5 of the Limitation Act has been filed to condone the delay, therefore, according to learned First Appellate Court under Articles 57 and 59 of the Limitation Act the suit is time barred. To me, the approach of learned First Appellate Court in this regard is not in accordance with law. 20. To me, the approach of learned First Appellate Court in this regard is not in accordance with law. 20. On conjoint reading of plaint averments para 5 and 5A of the plaint as well as reply of defendants in their written statement, it can be inferred that it was not in the knowledge of plaintiff that adoption has taken place and adoption deeds have been executed by Muniyabai and Ajudhyabai in respect to taking defendants Mohanlal and Sajjan Singh respectively in their adoption. The defendants in special plea of their written statement para 2 has pleaded that the factum of adoption of defendants 1 and 4 was in the knowledge of plaintiff despite he has filed the present suit. Plaintiff Makhan has specifically stated in his evidence that defendants 1 and 4 were never given in adoption. The suggestion put to him that it was in his knowledge has been emphatically denied by him. In rebuttal none ofthe witnesses of defendants states that the factum of taking defendants 1 and 4 in adoption was known to plaintiff and, therefore, it can be inferred that it was not in the knowledge of plaintiff that defendants No.1 and 4 were given in adoption to Muniyabai and Ajudhyabai and, therefore, on the death of Muniyabai on 18.6.1979 the cause of action accrued to plaintiffs to file suit for partition, because after the death of Muniyabai suit property devolved equally in plaintiff and his brother Devbaksh (defendant No.2). Hence, the present suit for partition arid declaration of half share in the suit property and to obtain separate possession has been filed by the plaintiff and in this suit making and raising the plea that the adoption is invalid, is only ancillary to the principal relief claimed in the suit and, therefore, according to me Articles 57 or 59 of the Limitation Act, 1963 has no applicability in the present factual scenario. In this context, I may profitably place reliance on the Division Bench decision of this Court Jamunadas (supra) where in para 15 and 16 it has been held that the claim in the suit is not in substance one for declaring invalid an adoption but it is in substance a suit for recovery of possession of immovable property. In this context, I may profitably place reliance on the Division Bench decision of this Court Jamunadas (supra) where in para 15 and 16 it has been held that the claim in the suit is not in substance one for declaring invalid an adoption but it is in substance a suit for recovery of possession of immovable property. The question as to the validity of adoption, under which the defendant claims the property, is merely incidental to the principal relief claimed in the suit. The Division Bench of this Court laid down the law on the basis of the law laid down by the Privy Council in Kalyandappa & others v. Chanbasappa & others, AIR 1924 Privy Council 13 7. Thus to me the suit cannot be said to be barred by prescribed period of limitation. 21. One important fact which cannot be marginalized and blinked away is that since plaintiff has come forward with a suit for partition of the suit property left by Muniyabai, the same could not have been filed during her life time and it could be filed only after her death because the property in dispute if at all would devolve in plaintiff and his brother Devbaksh (defendant No.2), the same would devolve only after the death of Muniyabai. Therefore, there was no occasion to the plaintiff to file suit earlier to the date of death of Muniyabai and since Muniyabai died on 18.6.1979, the present suit which has been filed by plaintiff cannot be said to be time barred. 22. I must mention here that the approach of learned First Appellate Court in para 16 that plaintiff by not filing an application under section 5 of the Limitation Act did not seek condonation of delay in filing the suit, is wholly unwarranted under the law for the simple reason that section 5 of the Limitation Act is applicable only to the appeal and application other then an application under any of the provisions of Order XXI of the Code of Civil Procedure and, hence, section 5 of the Limitation Act has no applicability on the suit and if the suit is barred by time even for a single day it has to be dismissed as such, subject to the provisions contained in section 4 to 24 (inclusive) of Limitation Act. The substantial question of law(A) is thus answered that learned First Appellate Court was not justified in holding that the suit filed by appellate for partition was barred by prescribed period of limitation. Regarding substantial question of law (B) 23. The learned trial Court while deciding issue No.1 came to hold that the owner of the suit property was Ganpat Singh whose widow is Muniyabai. Indeed there is no dispute to this proposition and learned counsel for the parties also submit that the owner of the suit property was Ganpat Singh. The trial Court while deciding issue No.1 came to hold in para 10 of its judgment that Ganpat Singh died some where in between the year 1933-34. However, according to learned First Appellate Court he died some where in the year 1940, in this regard para 11 of the judgment of the learned First Appellate Court may be seen. If it is taken to be true that Ganpat died in the year 1940 as held by the learned First Appellate Court, even then Qanoon Mal of Gwalior State Samvat 1983 was in force and according to section 253 of the said law after death of Kashtkar Sakitul Milkiyat or Maurusi Kashtkar (holder) the property would not devolve in his daughter but would devolve in his wife along with the heirs mentioned in the said section. Thus according to me, on the death of Ganpat Singh the property in dispute devolved exclusively in Muniyabai, who was the widow of Ganpat Singh and not to Ajudhyabai who was his daughter. Since Muniyabai died on 18.6.1979 viz. after the commencement of "Act of 1956" she because absolute owner of the suit property in terms of section 14 of the said Act and after her death the property will devolve in the heirs in accordance with the provision contained in section 15 of the Act of 1956. Looking to this legal position I am of the view that learned First Appellate Court in para 12 and 13 incorrectly held and its approach is not in accordance with law that Ajudhyabai also became the Bhoomiswami along with Muniyabai. Looking to this legal position I am of the view that learned First Appellate Court in para 12 and 13 incorrectly held and its approach is not in accordance with law that Ajudhyabai also became the Bhoomiswami along with Muniyabai. The substaintial question of law (B) is answered that learned First Appellate Court was not justified in holding that Ajudhyabai had also succeeded along with her mother to the estate left by her father Ganpat, who died in the year 1940 when Qanoon Mal of Gwalior State was in force. Regarding substantial question of law (C) 24. According to the stand of defendants, Sajjan Singh (defendant No.1) was given in adoption to Ajudhyabai while defendant No.4 Mohanlal was given in adoption to Muniyabai. After a ceremony of adoption, registered document of adoption deeds Ex.D-1 and D-2 were also executed. Ex. D-1 is in respect of taking Mohan in adoption by Muniyabai on the other hand Ex.D-2 pertains to Sajjan Singh by taking him in adoption by Ajudhyabai and these two documents were executed on 20.7.1976 in the village. The Sub Registrar documents came to the village and thereafter these two documents were registered on the next day on 21.7.1976 in the office of Sub Registrar. 25. On going through document Ex. D-1 it is revealed that Mohanlal aged 8 years was given in adoption by his father Ramprasad to Muniyabai as her son. On this document Muniyabai the adopted mother put her thumb impression and Ramprasad the natural father put his signature. The attesting witnesses to the documents are Ramchandra and Mohanlal and they also put their signatures as witnesses on this document. 26. Similar is the position of adoption deed (Ex.D-2) in which adoptive mother of defendant Sajjan Singh Ajudhyabai put her thumb impression and Ramprasad, the natural father of Sajjan Singh as well as attesting witnesses Ramchandra and Mohan put their signatures. 27. In very specific words it has been pleaded by plaintiff in his plaint that defendants 1 and 4 were not taken in adoption by Ajudhyabai and Muniyabai respectively and these pleadings he has pleaded in order to disprove the statutory presumption of a valid adoption envisaged under section 16 of the Adoptions and Maintenance Act. 27. In very specific words it has been pleaded by plaintiff in his plaint that defendants 1 and 4 were not taken in adoption by Ajudhyabai and Muniyabai respectively and these pleadings he has pleaded in order to disprove the statutory presumption of a valid adoption envisaged under section 16 of the Adoptions and Maintenance Act. Not only plaintiff Makhan, who appeared as PW 1 but his witnesses Harinarayan (PW 2) and witness Devbaksh son of Gheesalal (PW 3) who are the residents of the same village where the parties reside have categorically stated that no ceremony of adoption took place in the village. The statement of these witnesses is being mentioned here because it has been argued by learned senior counsel for respondents that in order to rebutt the statutory presumption enunciated under section 16 of the Adoption and Maintenance Act, it should be disproved by the plaintiff that adoption did not take place in compliance to the provision of the Act. 28. Section 11 of the Adoptions and the Maintenance Act speaks about the condition of a valid adoption. On going through section 11(vi) it is revealed that one of the essential condition is that the child to be adopted must be actually given in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. No where in the adoption deed Ex. D-l and D-2 it has been mentioned that the member of Sajjan Singh and Mohanlal gave her consent or any authority to give her sons in adoption. These boys were given in adoption only by their father Ramprasad who was examined as DW 1. In these two documents it has also not been mentioned that mother of defendants No.1 and 4 even gave her consent or authority to her husband Ramprasad to give these boys in adoption. In these two documents only this much is mentioned that Ramprasad is voluntarily giving defendants 1 and 4 in adoption to Ajudhyabai and Muniyabai respectively. In these two documents it has also not been mentioned that mother of defendants No.1 and 4 even gave her consent or authority to her husband Ramprasad to give these boys in adoption. In these two documents only this much is mentioned that Ramprasad is voluntarily giving defendants 1 and 4 in adoption to Ajudhyabai and Muniyabai respectively. To me, since there is nothing in these two documents in order to show that the mother of defendants 1 and 4 gave her consent or any authority to her husband Ramprasad and because she is not the executent of these two documents, this Court is unable to read in between the lines in order to hold that natural mother of defendants 1 and 4 also gave her consent along with her husband Ram Prasad to give these defendants in adoption. 29. On going through above said two documents it is revealed that the factum of adoption ceremony of actual giving and taking took place before the execution of these two documents in the village, but, according to Ramprasad (DW 1) who is the natural father of defendants 1 and 4, after the execution of registered document of adoption deeds thereafter in the village, the ceremony of adoption took place. In very specific words this witness who is the natural father of defendants No.1 and 4 has stated that earlier to the registration of adoption deed the ceremony of adoption of defendants 1 and 4 did not take place. In this regard, para 3 as well as para 1 of the statement of Ram prasad is quite relevant. To me, the statement of Ram prasad somersault the entire case of defendants in regard to the adoption and also poses a big question mark on the authenticity and hallmark of the registered adoption deeds (Ex. D-l and D-2) in respect to the factum of valid adoption. According to the documents Ex. D-l and D-2 before the registration of adoption deed, ceremony of adoption already took place but according to Ramprasad (DW 1) after the registration and execution of the registered adoption deeds, the ceremony of adoption took place in the village. Needless to emphasise both the situation cannot coexist at one point of time and, therefore, it is difficult to hold that defendants No.1 and 4 were validly given in adoption to Ajudhyabai and Muniyabai respectively. 30. Needless to emphasise both the situation cannot coexist at one point of time and, therefore, it is difficult to hold that defendants No.1 and 4 were validly given in adoption to Ajudhyabai and Muniyabai respectively. 30. Apart from this, Ramprasad who is the natural father of defendants 1 and 4 no where in his testimony has stated that actual corporeal ceremony of giving and taking at the time of ceremony of adoption took place, which according to me, is the cardinal principle in order to hold a valid adoption as envisaged under section 11 (vi) of Adoption and Maintenance Act. On the contrary on going through the evidence of witness Kailashnarayan Sharma (DW 5), indeed he performed the corporeal ceremony as he gave Mohan in the lap of Muniyabai and Sajjan Singh in the lap of Ajudhyabai. No where this witness is saying that on the instructions of the natural parents of these boys this witness kept them in the lap of Muniyabai and Ajudhyabai respectively. Not even a single witness of defendants is saying that defendants 1 and 4 were given by Ramprasad and his wife in adoption to Muniyabai and Ajudhyabai. 31. Apart from this, according to Anokhilal (PW 2) and Jagannath (PW 4) the adoption ceremony took place in Ganpati Mandir while according to the testimony of attesting witness of Ex. D-1 and D-2 Mohanlal (DW 3) the said ceremony took place in the house of Ram prasad. Thus there is material discrepancy in the evidence about the place where actual corporeal ceremony of giving and taking took place and therefore it is difficult to infer that corporeal ceremony of adoption ever took place. 32. The Supreme Court in Madhusudan Das (supra) has categorically held that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. The evidence in proof of the adoption should be tree from all suspicion of fraud or so consistent and probable as to give no occasion for doubting its truth. In the same decision it has also been held by the Supreme Court that for a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. In the same decision it has also been held by the Supreme Court that for a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and the acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. In another decision Jaysingh (supra) the same principle has been reiterated by the Supreme Court holding that actual or physical giving and taking of a child concerned is an essential feature of a valid adoption as envisaged under section 11 (vi) of the Adoption and Maintenance Act. The Supreme Court further laid down the law that the statutory presumption made in section 16 of the Act will come into play only when the adoption deed has been made in compliance with the provisions of the Act and the said presumption is a rebuttal presumption. The opposite party challenging the adoption may adduce evidence challenging the validity of the deed of adoption and if the deed itself may give suspicion it should be carefully examined. By applying the ratio decidendi and principles laid down by the Supreme Court in the present case looking to the documents and evidence placed on record it is difficult to hold that before execution and registration of adoption deed Ex. D-l and D-2 valid ceremony of adoption including actual or physical giving and taking took place. In this regard evidence of Ram prasad (DW 1) is that firstly the document of adoption deeds were executed and later on after coming back to the village the adoption ceremony took place. While in the adoption deeds altogether different version is mentioned that adoption ceremony already took place earlier to the execution of the deed in the village and, therefore, in view of this decision of the Supreme Court, it cannot be held that valid adoption took place. 33. This Court in Bholooram (supra) has categorically held that the adoption should be proved strictly in accordance with the provisions and heavy burden lies to prove adoption who seeks to displace natural succession. This Court while holding so, placed reliance on the decision of the Supreme Court Madhusudan Das (supra). 33. This Court in Bholooram (supra) has categorically held that the adoption should be proved strictly in accordance with the provisions and heavy burden lies to prove adoption who seeks to displace natural succession. This Court while holding so, placed reliance on the decision of the Supreme Court Madhusudan Das (supra). The learned Single Judge in this decision of Bholooram (supra) has also held that the factum of adoption must be pleaded with all necessary ingredients required under the law. But in the present case on going through the joint written statement of defendants 1 and 2 as well as the written statement filed by defendant No.4, the factum of valid adoption as envisaged under section 6 particularly the condition embodied in section 11 (vi) has not been mentioned and, therefore, necessary pleadings constituting a valid adoption is also wanting in present case and, therefore, it cannot be held that in absence of necessary pleadings that defendants 1 and 4 were given in valid adoption. 34. Apart from what I have held here-in-above, the documents of adoption deeds Ex. D-l and D-2 are not proved in accordance with law. On the adoption deeds Ex. D-l and D-2 Muniyabai and Ajudhyabai respectively have put their thumb impressions. Thus it can be inferred that they are illiterate ladies. In order to prove the document executed by an illiterate person, it should be borne out from the evidence that the document was read over and explained to the said illiterate person and after understanding its contents thereof he or she has put his or her thumb impression. Otherwise it cannot be said that the said document is proved. In this context I may profitably place reliance on the following decisions: (1) AIR 1925 Privy Council 204 Mt. Farid-un-nisa v. Munshi Mukhtar Ahmad and another; (2) AIR 1937 Privy Council 274 Omanhene Kwamin Bassayin v. Omanhene Bendentu II; (3) AIR 1939 Nagpur 78, Udebhan Zangoji Pati! v. Vithoba Ukandaji Dhangar; (4) AIR 1963 SC 1203 Mst. Kharbuja Kuer v. langbahadur Rai and others; (5) 1992 RN 367 = AIR 1992 MP 22 Ramjan Khan and others v. Baba Raghunath Dass and others, and (6) 2001 RN 217, Kisna v. Hiralal and others, All these decisions have been placed reliance by this Court in Bansilal (supra). 35. v. Vithoba Ukandaji Dhangar; (4) AIR 1963 SC 1203 Mst. Kharbuja Kuer v. langbahadur Rai and others; (5) 1992 RN 367 = AIR 1992 MP 22 Ramjan Khan and others v. Baba Raghunath Dass and others, and (6) 2001 RN 217, Kisna v. Hiralal and others, All these decisions have been placed reliance by this Court in Bansilal (supra). 35. Thus according to me by his pleading and evidence it can be held and inferred that plaintiff has disproved the factum of statutory presumption of a valid adoption envisaged under section 16 of the Adoption and Maintenance Act and it was for the defendants to prove that there was a valid adoption. The decision of Laxman Singh Kothari (supra) placed reliance by learned senior counsel of respondent also speaks about the handing over of the adoptive boy by natural parents to the adoptive parents to receive the adoptive boy in their adoption. I have already held here-in-above that these essential ingredients have not been proved by the defendant particularly when the factum of valid adoption has been challenged in pleading by the plaintiff and in his evidence also. The Division Bench decision of this Court Naresh (supra) is not applicable in the present case because in that case adoption was found to be valid and proved and in that situation it was held by the Division Bench of this Court that statutory presumption of a valid adoption should be made drawn. Similarly the decision of Privy Council Seth Biradh Mal (supra) also speaks that in order to constitute a valid adoption the actual giving and taking must be inferred. I have already held here-in-above actual giving and taking has not been proved nor it can be inferred. 36. Similarly the decision of Privy Council Seth Biradh Mal (supra) also speaks that in order to constitute a valid adoption the actual giving and taking must be inferred. I have already held here-in-above actual giving and taking has not been proved nor it can be inferred. 36. Indeed learned trial Court assigned reasons in detail from Para 13 to 34 and categorically held that the defendants 1 and 4 were given in valid adoption is not proved, in these circumstances, learned First Appellate Court should be slow in setting aside the said finding of learned trial Court while reversing its judgment and if there is conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witness, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it is clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is sufficient place of improbability to displace its opinion as to whether the credibility lies. In this context I may borrow sufficient light from the decision of Supreme Court Madhusudan Das (supra). For the reasons stated here-in-above I am of the view that learned First Appellate Court erred in substantial error of law in holding that defendants 1 and 4 were given in valid adoption to Ajudhyabai and Muniyabai respectively. The substantial question of law (C) is thus answered accordingly. 37. Resultantly, this appeal succeeds and is hereby allowed. The judgment and decree passed by the learned First Appellate Court dismissing the suit of plaintiffs is hereby set aside and the judgment and decree passed by the learned trial Court decreeing the suit of plaintiff is hereby restored with costs. Counsel fee Rs. 3,000/- if pre certified.