JUDGMENT <NAME>, J.

1. This is a suit for a declaration that plaintiff is the adopted son of one <NAME> and as such entitled to his estate. There is also the prayers for possession, for injunction, damages and accounts. The defendants impleaded are, <NAME> daughter of <NAME> and her husband <NAME>. The allegations made are that <NAME> widow of <NAME>, on 25-9-1950 adopted the plaintiff as a son of <NAME>. It is alleged that <NAME> had authority to adopt though it is not stated when such authority was given and whether it was oral or in writing. The. plaintiff is the grandson of <NAME> by his daughter <NAME>. <NAME> died in December 1949 prior to the adoption. It is pleaded that "according to the custom and practice prevailing amongst <ORG> to which the parties belong, a daughter's son can be validly given and taken in adoption." <NAME>, <NAME>'s widow died on 5-3-1956. On <NAME>'s death, <NAME> along with her son <NAME> became entitled to the estate of <NAME> in equal share in 1940. On the death of <NAME> in 1943, <NAME> inherited <NAME>'s estate as well and till her death <NAME> was in control and management of the entire estate. It is alleged that <NAME> had no stridhan property. After <NAME>'s death the defendants are alleged to have wrongfully taken possession of the estate of <NAME> and <NAME>, to have surreptitiously removed the moveables including Ornaments, jewelleries and utensils, have realised and are still realising the rents of the immovable properties in denial of the plaintiff's title as the adopted son of <NAME>. As part of the estate left by <NAME> is situate outside the jurisdiction of this <ORG>, leave under Clause 12 of the Letters Patent has been obtained. <NAME> had another daughter Sm. <NAME> by a predeceased wife. At the time of death of <NAME>, <NAME> had no son living, but two daughters, namely, the defendant and the said <NAME>. The only other daughter, namely. <NAME>, the mother of the plaintiff died in November 1949 prior to the death of <NAME> On the application of <NAME> this <ORG> by an order dated 20-3-1957, directed that <NAME> be added as a defendant and the plaint amended accordingly. Subsequently on the plaintiffs application the plaint was further amended by an order dated 2-2-1959. The object of the last amendment is to challenge the deed of trust executed by <NAME> inter alia in favour of her daughter <NAME> in respect to a very valuable immovable property of the estate being premises Nos. 1 and 2, Tagabandhu Bural Lane purchased on 15-5-1928. The property appears to have been purchased by <NAME> and the conveyance is in her name. Allegations are introduced in the plaint by the subsequent amendment that the said property was purchased by <NAME> in the benami of his wife <NAME> and that the defendant <NAME> had no title of her own to create the trust in favour of her daughter <NAME>. It is to be noted that though the suit was instituted originally after obtaining leave under Clause 12 of the Letters Patent, no further leave under Clause 12 was obtained for either of the amendments effected.

2. In due course <NAME> and <NAME> filed a written statement jointly. Leave was given to them to file additional written statements after the amendments. The defendant <NAME> filed her own written statement after being added as a party. There are altogether four written statements on record-- three by the two original defendants <NAME> and <NAME> and one of <NAME>.

3. In their written statements, the defendants <NAME> and <NAME> denied that <NAME> had any authority to adopt, that there was any custom to give and take a daughter's son in adoption, or that there was in fact an adoption. All allegations of wrongful conduct made against them have been denied. It is contended that <NAME> had inherited the estate of <NAME> as his heir at law after the death of <NAME>. Benami is denied and it is alleged that the premises Nos. 1 and 2, Jagabandhu Bural Lane was the property of <NAME> purchased with ber stridhan money and as such she was competent in law to create the trust in favour of <NAME>. It is further pleaded in the additional written, statement that even if the property was purchased by <NAME> with his own money in 1928, he by his act and conduct led the defendant <NAME> to believe that the property belonged to <NAME> having been purchased with her stridhan money and that the defendant <NAME> acted upon the said belief. In consequence <NAME> and his successors in interest are estopped from denying that the property was purchased with <NAME>'s own money. A further case is made that in any event <NAME> acquired title to the said property by adverse possession. It is pleaded that the suit is not maintainable, is bad for non-joinder of necessary parties and is barred by limitation and that! this <ORG> has no jurisdiction to entertain this suit.

4. <NAME> in her written statement also denied that <NAME> had any authority to adopt or that she could or in fact did adopt the plaintiff. She contended that as the heir of <NAME> she is entitled to one quarter of the estate on this basis that on <NAME>'s death <NAME> inherited half the estate, the remaining half having been inherit-

ed by <NAME> and that on the death of <NAME>, <NAME> along with <NAME> as the two heirs of <NAME> inherited equally to the estate of <NAME>. In the result, she is entitled to a quarter of the estate and the remaining three quarters belong to <NAME> as the heir of <NAME> one quarter and as the heir of <NAME> half inherited from <NAME>. <NAME> denied that the premises Nos. 1 and 2, Jagabandhu Bural Lane belonged to <NAME> or that the same was purchased with the stridhan money of <NAME>.

5. On these pleadings the following issues were settled:

1. (a) Did <NAME> have authority from her husband to adopt the plaintiff as a son unto her husband?

(b) Did <NAME> adopt the plaintiff as a son unto her husband on 25-9-1950 ?

(c) Is there any custom and practice prevailing amongst the Agarwal Community to which the parties belong that a daughter's son can be validly given and taken in adoption ?

(d) Was the plaintiff's adoption, if any, valid ? 2. Were premises Nos. 1 and 2, Jagabandhu Bural Lane purchased by <NAME> out of his own money and in the benami name of <NAME>? 3. (a) Is the Deed of Trust dated 29-7-1949 in respect of premises Nos. 1 and 2 Jagabandhu Bural Lane void for uncertainty ? (b) Does the said deed amount to a gift of the said premises ? (c) Has not the said deed been acted upon or give effect to? 4. Did the defendant No, 2 take possession of the assets and properties of <NAME> or <NAME> ? 5. Has this <ORG> jurisdiction to try this suit? 6. Is the suit maintainable ? 7. Is the suit barred by limitation ? 8. To what relief, if any, is the plaintiff entitled ? 6. At the trial a number of witnesses have been examined, some of the witnesses having been examined de bene esse prior to the trial. A number of documents have been tendered. The case has been argued with thoroughness by the learned counsel for all the parties' and I record my appreciation of the assistance rendered by the <ORG> in this case.

7. It is convenient at this stage to consider a point of law raised by Mr. <NAME> on behalf of the defence which, if upheld, must lead to the dismissal of the suit. The point of law raised is that this <ORG> has no jurisdiction to give any relief to the plaintiff in this suit. The suit was originally instituted against two defendants, namely, the defendant <NAME> and her husband <NAME>. Relief claimed is that the plaintiff is the adopted son of <NAME> and as such entitled to his entire estate and possession thereof. Leave under Clause 12 of the Letters Patent was obtained on the averment that part of the estate left in respect to which relief is sought is situate outside the jurisdiction of this <ORG>, Mr <NAME>'s contention is that the suit as originally instituted was bad for non-joinder of <NAME>, another daughter of <NAME>, who along with <NAME> inherited to the estate if the plaintiff is not the adopted son of <NAME>. <NAME> was a necessary party in a suit for declaration of plaintiff's title to the estate of <NAME>. His alternate submission is that the suit really is a declaration of the plaintiffs status as the adopted son of <NAME>. The other reliefs in this suit are consequential dependent on the establishment of the plaintiff's status as the adopted son. There are averments in the plaint to the effect that the plaintiff's title has been denied by the defendants and the defendants <NAME> arid <NAME> are dealing with the estate situate at Calcutta in denial of the plaintiff's title. A part of the cause of action to institute this suit, therefore, arose within the jurisdiction of this <ORG>, and in order to give jurisdiction to the <ORG> to try this suit leave under Clause 12 would be necessary. Leave though asked for and obtained however is not on that basis. The plaintiff has proceeded on the basis that it is a suit for land and inasmuch as part of the land is situate outside jurisdiction leave under Clause 12 has been obtained. Whichever, way the plaint is read, <NAME> is a necessary party and in the absence of <NAME> no relief could be granted to the plaintiff in this suit as originally framed, <NAME> was however added as a party on her own application by an order dated 20-3-1957. No leave was obtained under Clause 12 by the plaintiff after this amendment. It is contended that this leave is imperative in law to enable this <ORG> to entertain this suit and grant a decree against <NAME>. If no decree can be granted against <NAME> even though she is added as a party to the suit, the original defect of the suit remains. The suit was further amended at the instance of the plaintiff to challenge the deed of settlement effected by <ORG> in respect to premises Nos. 1 and 2, Jagabandhu Boral Lane. For this amendment also leave under Clause 12 was imperative in law. No leave to amend however was obtained by the plaintiff. In the absence of such leave the suit as amended cannot be entertained by this <ORG>.

8. The point for consideration is whether the plaintiff should have obtained leave under Clause 12. of the Letters Patent when either of the amendments were effected. I propose to consider the two amendments separately inasmuch as the firsh amendment was effected not at the instance of the plaintiff but by a stranger to be added as a party while the second amendment was effected at the plaintiffs instance. Mr. <NAME> contends that when a new party is added as a defendant it is a new suit as against this defendant and fresh leave is imperative to give jurisdiction to this <ORG>, if part of the land is situate outside jurisdiction in case the suit is one for land or if part of the cause of action arose outside jurisdiction if the suit is not for land. In support of this argument Mr. <NAME> strongly relies on the decision of the Appeal <ORG> in the case of <NAME> v. <NAME>, 84 Cal LJ 200. There was a partition suit instituted by <NAME> and his three infant sons against <NAME> and his infant son and one <NAME>., <NAME> contended in his written statement that he along with his two infant sons ware entitled to one-third of the half share in the joint estate and claimed separate allotment and possession. The suit was settled in terms of a settlement filed in <ORG>, and a decree was passed in terms of settlement. <NAME>, <NAME> and <NAME> the sons of <NAME> were added parties and <NAME> was appointed their guardian. <NAME> was paid a certain sum of money and was declared along with others to have no share in the four valuable properties allotted to <NAME> and Tulsiprosad which last two were entitled to get owelty from certain defendants. <NAME> acted as the next friend and guardian of the minor sons. Usual leave was given to the next friend and guardian to settle the suit on terms filed and the settlement was certified to be for the benefit of the minors. Subsequently a suit was filed by <NAME>, <NAME> and <NAME> inter alia for a declaration that the consent decree was void and that it be see aside so that the suit may be reheard. The ground on which the consent decree was sought to be set aside is that no leave under Clause 12 having been obtained when <NAME>, <NAME> and <NAME> were added as defendants, the consent decree was without jurisdiction and void. <NAME> who heard the suit held that as <NAME> was the father and karta of his branch of the family, though not so described, <NAME>, <NAME> and <NAME> were "dormantly as it were parties to the suit. Therefore, bringing mem on the record did not amount to addition of new parties but only clarified the position by making explicit what was implicit." In this view of the matter His Lordship held that no party was added and no leave was necessary. The appeal <ORG> took a different view and held that it was a case of addition of new parties and by the amendment the scope of the suit was enlarged, and reliefs which, could not be given in the suit as originally framed could be given after the amendment. In that view of the matter the Appeal <ORG> held that leave was imperative and in the absence of such leave the <ORG> had no jurisdiction to pass a decree against <NAME>. <NAME> and <NAME>. This is a decision of the Appeal <ORG> in which the point was directly raised for decision and as such a compelling decision on me. It is a clear authority for the proposition that when a new party is added, fresh leave under Clause 12 must be obtained, and the leave originally obtained would not suffice.

9. Mr. <NAME>, learned counsel for the plaintiff has cited the case of <CITATION> 24 Cal 190 in which <ORG> held that the restrictive words of Clause 12 of the Letters Patent apply to the case of plaintiff but that there is no similar restraining provision applicable to a case where the person seeking the exercise of the <ORG>'s jurisdiction is the defendant. In this case a Calcutta property was mortgaged twice. The second mortgage was with respect to the Calcutta property along with a property outside jurisdiction. In the mortgage suit instituted by the first mortgagee in respect to the Calcutta property the second mortgagee was impleaded as a defendant. There was the usual decree that the Calcutta property be sold. Pursuant to that decree the property was sold. The sale-proceeds of the Calcutta property after fully satisfying the claim of the first mortgagee, satisfied partly the claim of the second mortgagee as well. The second mortgagee thereupon applied for the sale of the other outside property under the liberty reserved by the decree for the balance of his claim. The question was whether he could do so without obtaining leave under, Clause 12 of the Charter. <NAME>, J. took the view that the words in Clause 12 of the Letters Patent restrictive of the exercise by the <ORG> of its jurisdiction must be construed strictly. The restrictive words being only applicable to the plaintiff and there being no similar restrictive provision applicable to a person seeking the exercise of the <ORG>'s jurisdiction who is the defendant, no leave was necessary. The point raised in the instant case is different and the case is clearly distinguishable. We are not called upon in this case to consider whether the added defendant <ORG> is entitled to any relief in the plaintiffs suit. The decision of the Bombay High <ORG> in the case of <NAME> v <ORG>, ILR 17 Bom 466 has also been cited by Mr. <NAME> in support of the proposition that <ORG> alone, the added defendant, is entitled to take the objection and the objection is not open to any other party. The original defendants, therefore, are not entitled to take the point that this <ORG> has no jurisdiction by reason of the fact that no leave was obtained when <ORG> was added as a party by the order of this <ORG> on her own application and the plaint amended accordingly. If cannot however be contended that the point as to jurisdiction, has not been taken by <ORG>. It is true that Mr. <NAME> the learned counsel for <ORG> and <ORG> argued the point and not Mr. <NAME>, the learned counsel for <ORG>. Mr. <NAME> however while arguing the case made it clear that though he is addressing his argument not on all issues raised in the case, he is doing so to avoid repetition. He expressly stated that on the issues on which he did not address any argument he would adopt the arguments to be addressed by Mr. <NAME> the learned counsel appearing for defendants Nos. 1 and 2. In that view of the matter this argument of Mr. <NAME> loses its force and the authority cited appears to have no application. Since, however, the case has been cited and strongly relied on by Mr. <NAME>, it is proper that I should deal with the Bombay case cited by Mr. <NAME>. In the Bombay case cited in answer to the plaintiff's claim against a firm, the defendant <NAME> pleaded that she was not the owner of the firm and that it belonged to her son's daughter <NAME>. Plaintiff thereupon made an application for adding <NAME> a party defendant and the order was made adding <NAME> a party. Agaimst this order adding <NAME> a party an appeal was taken by <NAME> on the ground that the effect of adding <NAME> as a party was the institution of a new suit without obtaining the necessary leave under Clause 12 of the Letters Patent. The <ORG> held that the only party competent to appeal against the order adding her a party is <NAME> and not the original defendant <NAME>. <NAME> would be entitled to take the point at the proper time and may be at the trial the suit might be dismissed on that ground as against her. That had, however, nothing to do with the suit against <NAME>. The claim now made after addition is that either <NAME> or <NAME> was liable and there are really two suits rolled into one. If the claim against <NAME> is proved, a decree will follow against her and the suit as against <NAME> will be dismissed. If, however, <NAME> is held to be liable as the owner of the firm, then the question will arise whether in the absence of leave the <ORG> had jurisdiction to pass a decree against <NAME>. But that is a matter entirely between the plaintiff and <NAME> and the original defendant <NAME> had no say in the matter. The Bombay case is clearly distinguishable from the instant case inasmuch as in the Bombay case a decree could not be passed against both the defendants, the claim against either being clearly distinct and separate. In the instant case the suit must be either decreed or dismissed as against all and the suit cannot be decreed against the original defendants and dismissed against the added defendant. This case, therefore, is hardly of any assistance to Mr. <NAME>.

10. Of the cases cited, the Calcutta case cited above has direct bearing on the question. It is a decision of <ORG> and hence a compelling decision on me. The only way the instant case can be distinguished from the cited case is, that in the instant case the party was added on her own application and not on the application of the plaintiff. In the cited case a stranger to the suit was added on the application of the plaintiff and the defendants who in a partition suit occupies the same position as that of the plaintiff. Where the plaintiff seeks leave to amend his own plaint by adding a party, he institutes a new suit as against the added party. But a party can be added on his own application as in the instant case or the <ORG> itself may direct that a party be added. In either case, such addition may be made in spite ot the opposition of the plaintiff. In such a case, should the plaintiff ask for and obtain leave under Clause 12 of the Letters Patent? The Calcutta decision gives no answer to this question. There is substantial argument on either side. It may be argued as it has been argued with force that inasmuch as leave is the foundation of jurisdiction, leave must be obtained no matter whether the amendment is made at the instance of the added defendant or that of the <ORG>. An application for amendment made on behalf of the plaintiff and an application for amendment made on behalf of the defendant must be treated on the same footing. On the other hand when the <ORG> adds a party suo motu or on the application of the added party in spite of the plaintiffs objection, why should the plaintiff be required to obtain leave to vest jurisdiction in the <ORG> to try the suit? By reason of the addition, the scope of the suit might well be expanded but the plaintiff cannot be held responsible if the addition of party is not at his instance. The <ORG> when it adds a party suo motu on its own responsibility, cannot say at the trial that the addition of party made at its instance was without jurisdiction. Nor can the added defendant be heard to raise objection to jurisdiction when he himself applied to be added as a party in a suit originally instituted by the plaintiff after duly obtaining leave under el. 12 of the Letters Patent. I therefore hold, but not without hesitation that in the absence of the plaintiff's obtaining leave when <ORG> was added as a party this <ORG> has jurisdiction to entertain the suit and pass a decree against <ORG>. I have not followed the decision in <NAME>'s case, 84 Cal LJ 200 on the sole ground that in <NAME>'s case, 84 Cal LJ 200 amendment wag effected by the plaintiff to the suit along with other parties who occupied the same position as the plaintiff's while in the instant case addition of parties were made at the instance of the stranger.

11. The second amendment challenging the deed of settlement executed by <NAME> was effected at the instance of the plaintiff and as such the position is different. The amendment undoubtedly adds a new cause of action. But the new cause of action is in respect to the same land in respect to which the suit was instituted after obtaining leave under Clause 12 of the Letters Patent. In the case of <CITATION> recently decided by me and , I expressed my view that in a suit for land partly situate within and partly outside jurisdiction, instituted after obtaining leave under Clause 12 of the Letters Patent, no fresh leave for amendment is necessary if the plaint is subsequently amended. Further, the new cause of action introduced by the amendment in the instant case relates to land situate wholly within the jurisdiction of this Court. It follows that if by the amendment a new suit, as it were, is being instituted, it relates to a land situate wholly within the jurisdiction of this Court. For the institution of such a suit, in any event, no leave under Clause 12 of the Lettters Patent is necessary.

12. In my judgment this Court has jurisdiction to entertain this suit even though no leave under Clause 12 of the Letters Patent was obtained for either of the amendments effected.

13-18. The case of adoption as made in the plaint is that there is a custom and practice prevailing amongst the <NAME> community that at daughter's son can be validly given and taken in adoption, that <NAME> gave authority to his wife to adopt a son to him and that in fact <NAME> did adopt the plaintiff as a son on 25-9-1950. These are questions of fact and considerable evidence -- oral and documentary -- has been tendered. I should state at once that in this case the oral evidence tendered has to be accepted with a considerable amount of caution. (His Lordship considered the evidence and proceeded:)

19. The plaintiffs case is that about a fortnight before 25-9-1950 <NAME> accompanied by <NAME> went to Ghatoa. Two days prior to 25th September, <NAME> went to Ghatoa. <NAME> decided to perform the adoption ceremony at Ghatoa, because at 16, Mullick Street <NAME>, <NAME> and <NAME> died. On 25th the ceremony wa9 performed. On the previous day <NAME> went round to invite people. No invitation letters were printed. After adoption <NAME> gave a sheet of stamped paper to <NAME> to draw up a deed which was done and the deed was signed by <NAME>. After <NAME>'s signature, <NAME>, <NAME> and <NAME> put their signatures on the document. There were other persons present including <NAME>. After the deed was executed, <NAME> was distributed amongst the persons present. <NAME> came away two days after. <NAME> went on living with <NAME>, now the adoptive mother and stayed there for six months and came to Calcutta thereafter, again with <NAME>. This document was registered about a month after the deed of adoption. The original deed has not been tendered in evidence, but a certified copy is exhibited in this case. The certified copy exhibited bears the date 8-5-1956. <NAME> stated in <ORG> that he procured himself the certified copy in early May. He said that two other certified copies were also obtained on his behalf which he had in his possession and which were shown to the <ORG> by his counsel Mr. <NAME>. Either side is alleging that the original is being suppressed by the other side.

20. The document is short and reads as follows:

"I, <NAME>. widow of <NAME> son of <NAME>, of Ghatoa, with a view to continuing the line of descent of my deceased husband <NAME> and for the purpose of spiritual welfare of his departed soul, by this deed of adoption adopt, in the line of my deceased husband, the son of. <NAME> of Chirawa district Zbunjhunu, Rajasthan, by the name of <NAME> who is my real and natural gandson, and declare that from this day the abovenamed <NAME>, as the natural son of myself and my husband, has acquired all lands of and entire rights in all my own, my husband's own and ancestral moveable and immovable properties which (would have belonged) to our natural son. And the abovenamed <NAME> shall consider me to be his mother who bore him and I will consider him to be my natural son. No heirs or relations of my husband shall be competent to challenge this deed of adoption--if they do, they shall be deemed to be liars. I have executed this deed of adoption out of my own accord, in possession of intellect and sense, and, without being under the influence of intoxication or ire, so that there be proof and the same may be of use at the proper time."

21. It is dated 25-9-1950 and witnessed by 1. <NAME> of Ghatoa, 2. <NAME> of Ghatoa and 3. <NAME>. <NAME> according to the evidence is the scribe. On 21-10-1950, the deed was presented for registration before the Sub-Registrar, Nawah, <NAME> by <NAME>. <NAME> was identified by <NAME> pleader. <NAME> admitted the same and declared that she having no son adopted <NAME> and executed the deed which might be registered. The deed shows the signature of <NAME> and <NAME>. Two witnesses at the time of registration are (1) <NAME> and (2) <NAME>. The certificate then indicates as follows:

"Registered in pp. 156 and 157 of Vol. 2 of Register Book No. 5 dated 21-10-50 and fee charged as under:

Rubber Stamp True Copy Sd. Illegible Sub-Registrar - Sambhar Date 8-5-1956."

It appears on the margin of the first page that the stamp paper was sold by <NAME>, Tahsil Nawah, to <NAME> widow of <NAME> of <ORG> through <NAME> on August 28, 1950.

22. There are some/ mistakes in the translation originally filed. Subsequently it has been corrected by tile translator who made the translation. The translator present in my Court approved of the corrected copy as being the correct translation of the original.

23. Objection has been taken to the admissibility of the certified copy as evidence in this case by the learned counsel for the defendants. It is alleged that the plaintiff is in possession of the ori ginal and is suppressing it. The reason for sup pression is that to the knowledge of the plaintiff, the document is not a genuine deed executed by <NAME>. It is however impossible for me to hold on the evidence before me that the plaintiff is in possession of the original and is withholding the original from the Court. If the original is not in the possession of the plaintiff, then it may be in the possession of the defendants <NAME> and <NAME> and, if not, in somebody else's possession --

not known to' the plaintiff. If it is in the possess ion of the defendants, then secondary evidence is admissible without any notice, otherwise the plain tiff is entitled to tender the certified copy as secon dary evidence on the footing that the original is lost. The copy shows that it is a copy of an entry in Book No. 5. Book No. 5 required to be kept under Section 51 of the Regis tration Act is the "Register of deposit of wills." The instant document should have been entered in Book No. 4 "Miscellaneous Register."

There is no doubt that the entry has been made in the wrong book. It should have been entered in Book No. 4 but has in fact been entered in Book No. 5. This is not a document which must be re gistered to be an effective document in law. The mistake is obvious and I am unable to hold that because of the entry having been made in the wrong book, registration is invalid and no certified copy of such an entry in the wrong book is admissible in evidence, (see <NAME> v, <NAME> and <NAME> in the matter of, 40 Cal WN 1012 : (AIR 1936 Cal

212). Otherwise the certified copy is ex facie re gular bearing the certificate of the registering au thority as being a true copy. The certified copy is, in my judgment, admissible in evidence under Section 76 of the Indian Evidence Act. I am not con sidering the question now whether the original of the certified copy was a genuine document executed by <NAME>.

24. This document ex facie is nothing more than a bare admission on the part of <NAME> that she has taken in adoption <NAME>. The document does not state when the adoption was taken though it does suggest that it took place on the same date. It does not state how she has done it, what, if any ceremony was performed. It does not re-

record that <NAME> gave away the boy in adoption and all the necessary and usual ceremonies have been performed. It does not state that <NAME> had authority from her husband to adopt. I should imagine that the authority of the husband being the condition precedent to adopt, such a document to evidence a valid adoption by the widow should record clearly the authority with full particulars. Again, <NAME> is not a party to the document nor is he a witness to it. It is indeed strange that if as the evidence is that the document was written out immediately after <NAME> gave away the boy in adoption and the document was intended to evidence this fact and considered so important as to be registered, why <NAME> should not be a party to it or at least be a witness to it. No explanation has been given to explain this absence of <NAME> in not being a party to the document. The stamp papers appear to have been purchased in the name of <NAME> by one <NAME> long before <NAME> came to Ghatoa. <NAME>. according to the evidence of the plaintiff and his father <NAME>, came ten or fifteen days before the date of adoption. About A fortnight before the stamp papers were purchased. <NAME> must have therefore written to <NAME> or any other man to purchase the stamped papers. No such letter, if any, has been produced. <NAME> has not been, called. There is no evidence who this <NAME> is. Of the witnesses to the document, only <NAME> gave evidence. <NAME> the scribe witness is dead. <NAME> has not been called. Apart from these witnesses, <NAME> who is a witness to registration gave evidence of execution of the document. <NAME> gave his reason for not being a witness to the execution of the deed. The explanation is that since his brother <NAME> was a witness, he did not become a second witness from the same family. <NAME> and <NAME> also gave evidence on the point. No explanation acceptable to the <ORG> has been given as to why <NAME> was not a witness to the document. According to <NAME>, immediately after the ceremony of giving and taking was finished, the stamped paper was given by <NAME> to <NAME> the scribe who wrote out the deed which was then executed. <NAME> was present then at Ghatwa. <NAME> left Ghatwa two days alter. This deed appears to have been presented for registration about a month after by <NAME> herself who went to Nawah for the purpose. <NAME> who identified her to the Sub-Registrar has nofi been called and no explanation has been given of this failure to call <NAME>. It should be kept 5n mind that the defence case all along had been that the document wag not a genuine document. Of the two witnesses present at the time of registration, <NAME> gave evidence. The other witness <NAME>, according to <NAME>, is dead. The witnesses who gave evidence that the necessary ceremonies had been performed are <NAME>, <NAME>, the plaintiff and his father <NAME> Churiwalla. The only living daughter of <NAME>, viz.. <NAME> or her husband or any other agnates like <NAME>, <NAME> and others who were living in Calcutta were neither invited to attend nor did they attend, if such, a ceremony was held. So also no intimation of this fact was given to <NAME> or the near agnates either before or after the alleged adoption.

25. Did <NAME> execute the deed of adoption dated 25-9-1950? The defence case is that <NAME> never executed this deed. The original deed is not forthcoming to enable me to compare the signature of <NAME> in the deed with the signature in the deed of settlement executed in respect to pre-

mises Nos. 1 and 2, Jagabandhu Boral Lane. I have, therefore to come to my decision on the evidence on record as to whether <NAME> executed a deed, the certified copy of which has been exhibited in this case. That a deed was executed which purported to be a deed executed by <NAME> in September 1950 is a fact proved beyond doubt. There is the evidence of registration and there is the certified copy which proves that on 21-10-1950 the original of the certified copy was registered. The fact that it was entered in the wrong book is hardly material on the point. It was suggested on behalf of the defence that this document was created after the present dispute started and registered surreptitiously and an ante-dated entry has been made in the Registration Book. This is hardly acceptable. It must be held on the present evidence tendered by the plaintiff on this point, which I accept, that the document was executed on 25-9-1950 which was subsequently registered on 21-10-11950. If the document was in fact executed, who other than <NAME> could have done it ? It is to be noted that there is clear proof that in the middle of 1949 June-July <NAME> was anxious to take! <NAME> in adoption. The oral evidence tendered on behalf of the plaintiff by <NAME>, a witness to the document, and of <NAME> of its registration by <NAME> becomes therefore acceptable. Accepting this evidence I hold that <NAME> executed the document on 25-9-1950.

26. This original document I hold is not in the possession of the plaintiff. The suggestion made by the defence that the document is in the possession of the plaintiff and he is suppressing it because the document is not genuine is not acceptable to me. If as I hold that the document was genuine, there could hardly be any reason for the plaintiff to withhold it assuming he had the document. Defendant <NAME> may or may not be in possession of the original and it is not necessary for me to record a rinding as to whether <NAME> is in possession of it. In order to enable the plaintiff to tender the certified copy as a secondary evidence, it is enough for the plaintiff to prove that the original is not in his possession and so far as he is concerned it is lost. There is ample evidenced to that effect which I accept.

27-37. The adoption is proved by <NAME> and <NAME> of <NAME>, <NAME> and <NAME>. The other witnesses like <NAME>, <NAME> and <NAME> only heard of it and their evidence cannot be considered to be evidence, if at all, of any value on the point. (His Lordship reviewed the evidence and continued :)

38. It is clear that only after he received the certified copy of the deed of adoption that <NAME> decided to set up the title of his son to the estate of <NAME> as his adopted son. It appears from the <NAME> correspondence that a number of busy bodies were out to get certified copies of the deed. Mr. <NAME> stated that in fact three certified copies were obtained including one obtained by <NAME> himself. The one tendered in this case is dated 8-5-1956, which, according to <NAME>, he obtained himself after going to <NAME>. Other certified copies also were obtained in or about the same period. The first overt act took place on 6-5-1956 when <NAME> lodged a diary to the effect that on the same date at 10 a.m. <NAME> came and was trying to get possession of the household articles left by <NAME> at 16, Mullick Street and thereby threatening the complainant to deprive him of his legal rights of getting possession of the deceased's articles. He further added that he being the son of her elder daughter <NAME> is the legal heir to the property." It is noted by the police officer that the dispute being over civil matters the party has been referred to court. This diary entry is proved by the police officer who made it. The signature of <NAME> Churiwalla is there in Hindi. <NAME> was confronted with this diary which showed that upto date he put forward title as a grandson of <NAME> by his daughter <NAME>. <NAME> did not put forward his claim as the adopted son of <NAME>. At first <NAME> stated that on 6-5-1956 <NAME> did not come back on that date. On the following day he corrected his evidence and stated that <NAME> was there. In an affidavit affirmed on 25-6-1956 by <NAME> in a proceeding in this suit he stated in paragraph 22(b) that he <NAME> locked the room in the occupation of <NAME> on 17-4-1956 and he locked the other rooms on 7-5-1956. <NAME> on returning back broke open all the locks in the absence of <NAME> and took possession of the rooms wrongfully. His attention was drawn to this affidavit. In court he stated that of the dates given April 17, is alright but May 7, is wrong. <NAME>'s evidence in answer to Q. 328 is as follows :

"No, I stated before the police that I was the son of the late '<NAME> and that there was a deed of adoption and I was the rightful owner of her properties and that the defendant <NAME> had wrongfully and forcibly entered the house. But the police officer said, 'I am not going to admit what you say; where is the deed of adoption?"

Objection was taken that this statement before the police officer is not admissible in evidence under the Criminal Procedure Code and the Evidence Act . It has not been disputed that the statement is relevant evidence which would have been admissible had it been made before any other person. But it is contended that such a statement when made to a police officer is not admissible. I find -neither reason nor authority in support of such a proposition. The authorities cited are in connection with criminal proceedings. No doubt a statement made to a police officer cannot be admissible as an evidence of confession of guilt. It is absurd to invoke the authorities and reasoning in support of an argument that such a statement before a police officer cannot be proved as an admission under Sections I5 to 21 of the Evidence Act , in a civil case. I hold they are admissible. The police diary does suggest that even on 6-5-1956, <NAME> was not asserting his title to the estate of <NAME> as his adopted son though undoubtedly he put forward a claim. If his evidence is accepted that he did refer to the deed of adoption to the police, then for the first time on 6-5-1956 he asserted his title as the adopted son of <NAME>. It is however difficult to believe that <NAME> stated to the police that he was the adopted son and that the police officer stated that he was not going to admit that and that he demanded to see the deed of adoption. There was no reason why the police officer should not record what <NAME> stated. The police officer would all the same be entitled to refer the parties to <ORG> on failure of <NAME> to produce the daed of adoption. There was no reason whatsoever for the police officer not to record <NAME>'s statement, if in fact such a statement was made. <NAME>'s evidence that he signed the diary without knowing the contents is hardly acceptable. In the police diary an overt) act is alleged to have been done by <NAME> on 16-4-1956 when he locked the doors of the room at 16, Mullick Street in proof of <NAME>'s title. The diary was made only for the purpose of creating evidence and it was felt that the overt act in proof of <NAME>'s title must be ante-dated to strengthen the plaintiff's case. I do not believe the story put forward by <NAME>.

39. Certified copy of the. deed of adoption was obtained On 8-5-1956. Thereafter, in May Mr. <NAME> acting for <NAME> wrote letters to the officer-in-charge, Burra Bazar Police Station and <ORG> not to grant trade license to <NAME> of <ORG>', to the tenants not to pay rent to <NAME>. He also advertised in the papers that <NAME> was the adopted son of <NAME> and as such heir to his estate. On 11-5-1956 <NAME> filed a petition in the Court of the Chief Presidency Magistrate to the effect that <NAME>, <NAME> and <NAME>'s step-mother had started since the beginning of May 1956, creating disturbance in the family and are Sending undesirable persons to intimidate your petitioner to give up the property in favour of the accused persons.' In answer <NAME> filed a petition after the institution of the present suit, putting forward the claim of <NAME> to the entire estate of <NAME> as his adopted son. The present suit was filed on 17-5-1956.

39-A. I have not the least doubt that till May 1956, the parties were living in amity and it is only after <NAME> obtained the certified copy of the deed of adoption that disputes started and <NAME>'s title as the adopted son to inherit the estate of <NAME> was asserted. I am unable to accept the plaintiff's case that he was driven out from <ORG> on the day after the death of <NAME> by <NAME> and her husband. There is a discrepancy in the evidence as to the time when the altercation look place between <NAME> and <NAME> when <NAME> was alleged to be removing the title deeds and movables. According to <NAME> it took place at about 9 p.m. that is to say, two hours after the party returned back from the burning ghat. According to <NAME> it took place in the early hours of the following morning. Nothing happened, however, after this serious event. According to <NAME>, he went to <NAME> to plead for <NAME> but after <NAME> peremptorily rejected <NAME>'s claim nothing happened. <NAME> advised his son to see the solicitor Mr. <NAME> and the son's evidence is that he saw the solicitor. This story of <NAME> and <NAME> is unacceptable. The solicitor <NAME> was approached in early May and from early May the solicitor took all necessary steps to protect the interest of <NAME>. <NAME> when hard pressed in cross-examination stated that on the day following his expulsion from <ORG>, he lodged a complaint with the police. This is patently false. Had there been such an important piece of evidence, the plaintiff would have tendered it. The story of locking the doors of <ORG> on April 16, as contained in the police diary of (3-5-1956 is clearly an afterthought and manufactured for the purpose of evidence. I have no hesitation in holding that the funeral and sradh of <NAME> were performed by <NAME> the nearest agnate. All the ceremonies were performed by <NAME> including the sradh at 16. Mullick Street. I further hold that <NAME> & <NAME> both participated in the sradh ceremony performed at <ORG> on the 12th day. No parallel sradh was performed at 19, Amratolla Street as alleged by the plaintiff. The whole story is a myth. When the party went to Ghatwa for performing! the Mauser ceremony and it was performed with great pomp, it is then that we get an indication of setting up the title of <NAME> and a small group of <NAME>'s relations were on the move in the matter. <NAME> was being regailed with the fantastic story of <NAME> having dug up large quantity of valuable ornaments and utensils -- sold some of them after melting and met the lavish expense incurred at Ghatwa from the sale proceeds. There was not merely the mauser expenses to be met but liberal bribes were given to the village folk. <NAME> was told that there was a registered document which will prove his case. Though urged by <NAME> and others, <NAME> did nothing till he got the certified copy of the deed of adoption in May. Immediately on receipt of the deed, <NAME> acted and acted with vigour. We find the solicitor is sending letters to the tenants, to the <ORG>, to the police and all and <NAME> setting up <NAME>'s title. Advertisements were issued in the papers and shortly thereafter the suit was instituted on 17-5-1956.

40. Why <NAME> did nothing before the receipt of the certified copy? If he knew as a fact that <NAME> was given in adoption by him at <NAME> and taken by <NAME> and that a deed was executed immediately after evidencing adoption, if he knew all these facts, this inaction cannot be explained. I would have expected <NAME> to take all steps on behalf of his son immediately. He would not have allowed <NAME> and <NAME> to perform the sradh to the total exclusion of <NAME>. He would not have allowed <NAME> to take possession of the movable and immovable properties of <NAME> and <NAME> and be a mere idle spectator. If <NAME> knew that there, was a registered deed of adoption and his evidence is that he was shown this deed by <NAME>, then he need not have waited to receive the certified copy to decide his course of action. The more I consider the conduct of the parties, the more convinced I am that <NAME>, <NAME>, <NAME> and others did not know of the existence of this registered deed and would not believe of its existence, unless certified copv was shown. This is the reason why in spite of the urgings by <NAME> and his group, <NAME> did not move till the certified copy was obtained. This conduct throws very great suspicion on the story of adoption ceremony having been performed at <NAME> in which <NAME> took an active part. The oral evidence tendered is not of disinterested witnesses and for reasons set out before Cannot be accepted unless corroborated by dependable evidence -- either of documents or of conduct. The documents strongly relied on by Mr. <NAME> are the letters of <NAME> to <NAME> in the middle of 1949 and the deed of adoption. These two letters do indicate that <NAME> was anxious to take <NAME> in adoption. There is, however, no evidence that <NAME> or his wife <NAME> were also willing to give <NAME> in adoption. <NAME>'s evidence is that after the birth of <NAME> he was willing to give <NAME> in adoption. It follows that prior to the birth of <NAME> in December 1949 he was unwilling and that was the state of mind of <NAME> as well. <NAME> died a fortnight after <NAME>'s birth and it is difficult for me to believe that in the fortnight she lived she did apply her mind to the subject and changed her mind. I believe that <NAME> till the date of her death was unwilling to give her eldest son in adoption and that was the attitude of <NAME> as well. The oral evidence of <NAME> that he subsequently changed his mind is hardly acceptable. The only reason given to change his mind is the birth of <NAME>. How this event has anything to alter <NAME>'s decision is not intelligible to me. Had <NAME> been the only son of <NAME> then I can well understand Chi-

<NAME>'s unwillingness to give him in adoption and his reason for altering his decision when another son was bom. But such is not the case. Chi<NAME> had at that time two sons and <NAME> is the third. While however giving due importance to the letters of <NAME> to Chi<NAME> in the middle of 1949 as very strong evidence of the fact that <NAME> was anxious to take <NAME> in adoption, it falls short of being evidence of the fact of adoption in so far as it does not indicate any willingness on the part of Chi<NAME> to give away the boy in adoption. Further, Chi<NAME> could not altogether ignore his deceased wife's intention in the matter. I hold that the deceased wife was against giving her eldest son in adoption altogether. The third document on which reliance is placed by Mr. <NAME> is the deed of adoption. The deed, however, does not recite that the ceremony of giving and taking has been performed, nor is Chi<NAME> a party to it. He is not even a witness. If the deed was drafted immediately after the ceremony in the presence of Chi<NAME>. I would expect Chi<NAME> to be a party and I would expect that the document would record this essential fact in the deed that the boy was given away by Chi<NAME> and accepted by <NAME>. In the absence of Chi<NAME> being a party to the deed and in the ab-bence of averment in the deed that the ceremony of giving away and taking has been performed, I am unable to hold that the document is an evidence of the ceremonies having been performed. It may well be that in her anxiety to take <NAME> in adoption, <NAME> at the instance of her Ghatwa relations like <NAME> and <NAME> executed the document, even though she was aware that the father was not willing to give the boy in adoption. The deed of adoption, in any event, cannot be considered to be a clinching document in the absence of Chi<NAME> being a party to it and in the absence of any reference , of the ceremony of giving and taking has been performed. In this state of affairs subsequent evidence of conduct of the parties assumes very great importance. Witnesses may lie but evidence of conduct proved by cogent evidence is always dependable. I have indicated before that the conduct of all parties indicates in unmistakable terms that there was no adoption. <NAME> continues to be the son of Chi<NAME> Churiwalla even after adoption and was admitted in schools in the name of <NAME> Churiwalla, son of Chi<NAME> Churiwalla having residence at 19, Amratolla Street. I believe that <NAME> after the alleged adoption all along resided at 19, Amratolla Street and not at 16, Mullick Street and I believe the defence witnesses on this point. <NAME> and <NAME>'s conduct tended to show that there was no adoption. <NAME> could not have performed the funeral and sradh ceremonies had there been any adoption. So also <NAME> could not have been a party in the issue of invitation letters on the occasion of <NAME>'s sradh excluding, the name of the only son of Ramprotap. <NAME> could not have taken the four <NAME> of Ramprotap from <NAME> had <NAME> been the adopted son of Ramprotap, in which event <NAME> would have no title in the <NAME> to give to <NAME>. Oral evidence now of <NAME> and <NAME> loses all weight, in view of the above facts. It is clear to me that after the <NAME> ceremony. <NAME> and <NAME> enlisted the support of <NAME> and <NAME>. Prior to that date, <NAME> and <NAME> had not the slightest knowledge of the deed and the so-called adoption.

41. Mr. <NAME> strongly urged me to hold that <NAME> never went to Ghatwa. <NAME> evidence is that he twice went to Ghatoa.

once when the adoption took place when he resided there for six months and subsequently a few years after, when he resided there for a few days. When his knowledge of Ghatoa was tested by cross-examination, it transpires that his knowledge about Ghatoa is next to nothing. One who resided at Ghatoa first for six months and then for ten days subsequently is expected to have better knowledge of the place. On this basis, Mr. <NAME>, made his submission. I cannot hold that this argument of Mr. <NAME> is of no substance. I have previously discussed the evidence tendered as to authority to adopt given by <NAME> to <NAME>. The contradictions in the evidence of the different witnesses have already been noticed. Further, in my view, the whole story suffers from inherent weakness. At the time when the authority was alleged to have been given, <NAME>, the first son, died some three months before and the second daughter was born. <NAME>, though advanced in age, was still healthy and virile, impregnating his third wife practically every year. There was no occason for anybody to think that <NAME> would not have any other son. In fact, subsequently another son -- Ghasiram -- was born to <NAME>. In such state of fact, the question of adopting a son can hardly arise. The question of adopting a son only arises when the parents give up all hope of having natural sons. When the couple are sexually active and the female is regularly conceiving and giving birth to children, the question of adopting a son can hardly arise. If there was any talk at all of adoption, as deposed by <NAME>, <NAME> and <NAME>, it was a talk of the most casual kind and was not a solemn act of <NAME> giving authority to his wife to adopt a son. Further, if in fact such an authority was given by <NAME> and <NAME> was anxious to have a son adopted in the absence of a natural son, why need she have waited Still September 1950 to adopt a son ? <NAME> died in 1940; her only son died in 1943. Why need <NAME> have waited so long if she had authority? This is somewhat inexplicable. Mr. <NAME> argued that the letter of <NAME> to <NAME> proves that <NAME> intended to adopt <NAME> and <NAME> was urging <NAME> to give his son <NAME> in adoption. The nearest relations of <NAME>, therefore, were taking interest in the matter of adoption of a son by <NAME>. Unless <NAME> had the authority to adopt and this fact of <NAME> having authority was known to <NAME>, <NAME> and all concerned, how the question of <NAME> adopting a son would arise at all. This is undoubtedly an argument available to Mr. <NAME>. On the other hand, it should not be forgotten that the authority alleged was given by <NAME> when <NAME> was two months old. Neither <NAME> nor her husband! <NAME> could possibly have any knowledge of the authority <NAME> is alleged to have given <NAME> when <NAME> was two months old. Also <NAME> could not have personal knowledge of the authority. It is not in evidence that <NAME> or anybody else ever fold either <NAME> or <NAME> or <NAME> that she was authorised by <NAME> in 1921 to adopt a son, in case she had no son born or if born died leaving no issue. Having regard to this fact, the importance of this bit of evidence, namely, <NAME> writing to <NAME> whether he was willing to give his son in adoption to <NAME> practically vanishes. The letter, therefore, amounts to no more than this that <NAME> was anxious to adopt <NAME> and at her request <NAME> wrote to <NAME> stating <NAME>'s desire and enquiring whether <NAME> and <NAME> were agreeable to the proposal. Neither party at that time considered whether <NAME> had the necessary authori-

ty; that was not in the mind of anybody. It is not permissible from this fact to infer that there was in fact authority given to <NAME> in 1921 and that <NAME> and <NAME> and all concerned had full knowledge of this fact. In my view, <NAME>, <NAME> and <NAME> are not merely extremely partisan witnesses but they are also otherwise undependable. I have felt my inability to accept their evidence on other important points in this case. They are not, in my view, dependable witnesses of truth. Further, they contradicted each, other in material particulars. Finally, the story is inherently unacceptable. On the evidence, it is impossible for me to hold that <NAME> gave authority to <NAME> to adopt after the birth of <NAME> in 1921, in case <NAME> had no natural son or in case the natural son died after the death! of <NAME>.

42. On the question of adoption, the only other point that now remains to be considered is whether the custom as pleaded in the plaint has been proved to exist. This is a question of fact. The custom is pleaded in paragraph 10 of the plaint and reads as follows:

"According to the custom and practice prevailing amongst the Agarwal Community to which the parties belong, a daughter's son can be validly given and taken in adoption."

The custom pleaded is very wide in its terms, covering the entire Agarwal community of India, The custom pleaded is a community custom and not a local or family custom. This is certainly unfortunate. It was not necessary for the plaintiff's case to plead custom in such wide terms. Burden of proof of such a community custom is apparently much heavier than that of a family or local custom. It would require examples spread throughout India and the number must necessarily be correspondingly large. Instances of adpoption of grandsons by daughter sought to be proved in evidence by the plaintiff are seven in number. (His Lordship considered these instances and proceeded). The evidence ot adoption tendered, however, does not enable <NAME> to decide whether the custom relied on in each case was family custom or community custom. The number of cases tendered is comparatively few. Excluding the case of <NAME>, held against by <NAME>, <NAME> there are altogether six cases -- three of them very recent, one 50 years old and another 10 or 15 years. The cases are confined to a few families. No priest or cast dignitary or elder has been called to give general evidence as to the existence of this custom. On the defendant's side, <NAME> has tendered evidence denying the existence of this custom.

43. The Sastric Hindu Law lays down, inter alia, that any person who is a Hindu may be taken or given in adoption, provided he must not be a boy whose mother the adopting father could not have legally married. This is the general rule, but only applicable to the three upper classes and, excluding the Sudras. But even as to the three upper classes, this rule may be modified and adoption, though prohibited under this rule, would be upheld, if sanctioned by custom. The Agarwalas are not Sudras and they have been held to belong to one of the three upper classes. This has not been disputed. Reference may be made to the case of <CITATION> , 37 Ind App 93 (PC), where it is held that <NAME> belong to the twice-born classes. In the instant case, therefore, the adoption of the grandson by daughter, though prohibited by the general Sastric Law, can be upheld, if a custom is proved to exist sanctioning such adoption. Sir <NAME>, Sir <NAME> and Shri <NAME> in their treatises on Hindu Law record that this rule has been restricted in many recent cases to the daughter's son, sister's son and mother's sister's son. In the treatises above noted, no case is to be found of an adoption of a grandson by daughter among the <NAME> of Rajasthan. Mr. <NAME>, learned counsel appearing for <ORG>, strongly urged that the absence of reference to any case of such adoption in such authoritative treatises Is a strong piece of evidence of the fact that no such custom exists amongst the <NAME> of Rajasthan. Mr, <NAME> submitted that in order to establish that a custom exists to supersede the general law, it must be established not merely that there has been such adoption in fact, but that it must further be proved that the parties were conscious that under the general Hindu Law it is not permissible but has become permissible under the custom of the community or family whereby the general law is superseded. Mr. <NAME> urged that there must be evidence that such adoptions are recognised by the community to which the parties belong and for that purpose it is imperative to lead evidence not merely of certain specific cases of adoption but evidence of priests or leading members of the community that such a custom is recognised by the community. In the instant case, though there is evidence of adoption of grandsons by daughter, there is no! general evidence by a priest, pundit or leading member of the community in support of such custom. The only evidence of priest or pundit is that of <NAME>, who denies the existence of such custom. I agree with Mr. <NAME> to this extend that evidence of certain cases of adoption will not be enough to prove the existence of custom, but it must be proved further that such adoptions have been accepted and recognised by the community. Such acceptance may be proved by the general evidence of the priests, pundits or village elders. But, in my judgment, they may be proved by other evidence as well. If there is evidence that even after such adoption the adoptive father and the adoptive son or their respective families have not been socially ostracised or that the adoption has not been challenged and title of the adopted son to inherit the property of the adoptive father has not been disputed in a court of law or otherwise by anyone else who would otherwise be entitled to the estate and the adopted son has been allowed to enjoy the property of the adoptive father, that would be good evidence of approval of the community of such adoption and the existence of custom in modification of Sastric Law is thereby proved. I do not think it essential that the custom being in derogation to the general law, it must be proved that the parties to adoption must be conscious that they were acting contrary to Sastric Law pursuant to a custom which supersedes the Sastrio Law. In the instant case, there is no evidence that the families which were parties to the adoption of a grandchild by daughter have been socially ostracised or that in case of old adoption the right of the adopted son to inherit the property of the deceased father has been challenged. There is no rebutting evidence tendered by the defendants. In the absence of such evidence, it must be held that the adoptions of grandsons in the specific cases proved have not been disapproved of by the community. The next argument of Mr. <NAME> is that the Email number of cases proved is not enough to establish general community custom, as pleaded in paragraph 10 of the plaint. Mr. <NAME> strongly relies on the decision of <ORG> in <NAME> case reported in 37 Ind App 93 (PC), in support of his argument that to establish a general custom of the Agarwal community, a larger number of such adoptions in a number of centres of Agarwal population must be proved. In the case before <ORG>, the question was as to the existence of a custom prevailing amongst the <NAME> whereby a married man can be taken in adoption, regardless of age and marriage. To prove custom, 21 witnesses from Jaipur and 36 witnesses from other places were examined. These witnesses gave 43 instances of adoption of married men by <NAME>. Two of the cases cited were sub-judice; three admitted to have been not proved. Of the remaining 38 cases, there was the concurrent finding of both the courts that six have not been proved. Of the remaining 32 cases, 8 were from Saharanpur District, 9 from Muzaffarpur, 11 from Meerut and 3 from Delhi and I from Karnal. The Delhi cases were of very recent origin. The learned Subordinate Judge held that general custom has not been proved. <ORG> reversed the decision of the Subordinate fudge and held that the custom was proved. <ORG> upheld this finding of <ORG>, but did so with the following observation at page 104 of 37! Ind App. :

"The question in the present case was, and is, whether a custom, applicable to the parties concerned, and authorising the adoption of a married boy, has been established. This is strictly speaking pure question of fact determinable upon the evidence given in the case.

The custom alleged in the pleading was this : 'Among the Jains adoption is no religious ceremony, and under the law or custom there is no restriction of age or marriage among them'. And that appears to be the custom found by <ORG> to exist. But upon the argument before their Lordships it was strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centres of Jain population, was insufficient to establish a custom so wide as this, and that no narrower custom was either alleged or proved.

In their Lordships' opinion there is great weight in these criticisms, enough, to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the alleged custom should be forthcoming."

In the instant case, the number of adoptions proved is comparatively very small and such evidence as has been given does not cover all the centres of the Agarwal population, I agree with Mr. <NAME> that the cases proved are insufficient in number to establish the community custom as alleged in paragraph 10 of the plaint. The case of <CITATION> decided by <ORG> and reported in 68 Ind App 1 : has been cited by Mr. <NAME>. It was a case of succession and the question was whether there was a local custom applicable to a small class (Tula) in a district of Punjab whereby a collateral of the tenth degree takes precedence over a married daughter in succession to non-ancestral estate. In this case the court was called upon to consider the evidentiary value of 'Wilsons Manual on questions of Customary Law' and of entries in the riwaj-i-am. The court held that the Manual was admissible as evidence both under S. 48 and Section 35 of the Evidence Act. The entries in riwaj-i-am are held to raise a presumption of correctness^ but what evidence is required to rebut the presumption depends on the facts of each case. But this decision lays down that English rule of legal memory is not applicable to determining the validity of a custom in India. The observations in 68 Ind App 11 at page 31 : are in these terms :

"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 main -- still less, that it is ancient in the English technical sense. 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."

It is to be noted that neither party proved any specific instance in this case; so there was no rebutting evidence and the case was disposed of on presumptive evidence of the entries and the evidence of custom as recorded in the Manual. The original law as to adoption is to be found in the Sastric text. The restrictions imposed, however, have been modified by the Hindu society in the only way open, namely, by development of custom. This is the way of evolution of Hindu Law. The custom evolved to modify the Sastric Law must necessarily be subsequent in point of time. For Very cogent reason recorded by <NAME> J. in , the rule of legal memory evolved by <ORG> has no application in India to determine the existence and validity of the custom. To validate a custom in order to have the force of law in India, the custom need not be of such long standing 'that the memory of man runneth not to the contrary'. In argument I put this question to Mr. <NAME> that if for 50 years past it is proved that there is a custom in existence, would that have the force of law? Mr. <NAME> replied that from this proof of existence for the last 50 years the <ORG> will infer that it was in existence from time immemorial, hence ancient, and it has the force of law If, however, it is proved that previous to 50 years there was a case of such adoption but not approved of or accepted by the then Hindu society, then according to the reasoning of Mr. <NAME>, the proof of the custom for subsequent 50 years will not establish its antiquity and its validity as a customary law. This is hardly satisfactory. The Sastric Law must be held to be the law at the beginning and adoption of a grandson by daughter was then illegal. At some subsequent point of time this has changed by the evolution of a custom and if the date of change over is ascertained, then according to this reasoning the custom would lose its validity which without the ascertainment of the time of change over would have been valid. I confess that I do not understand far less appreciate this logic. Further, this would take away the flexibility of the Hindu society and make it rigid and hidebound bv the Sastric injunction. This argument will deny the evolution of Hindu society which has subsequently modified the original Sastric Law by the development of customary law. If the rule of legal memory does not apply to customary law in India, proof of the existence of custom for the last 50 years is enough to give it validity as customary law, even though it is proved or presumed that the law was otherwise previously. In my judgment, proof of the existence of custom for 50 years is enough to give it the validity of law, even though it is proved that previous to the period a different state of things existed.

44. It is unfortunate that the custom pleaded in this case is in such wide terms that it is impossible to record a finding in its favour on the comparatively scanty evidence tendered. Had the custom pleaded been only family custom I might have been persuaded to uphold it on the basis of the evidence, scanty as it is. <NAME> is a member of the family and he has stated that his brother <NAME> adopted his daughter's son in adoption. This is evidence of adoption of a grandson by daughter in the family and on this evidence I may be inclined to stretch a point in the plaintiff's favour and hold that in this family at least such a custom is proved to exist, provided I am satisfied that in fact such an adoption has taken place in the presence of the other members of the family present at Ghatoa who approved of it. Participation, by a large number of members of the family in the adoption ceremony raises an inference that such a family custom exists. Community custom, however, is of a much serious character and on the evidence on record I hold that community custom as pleaded in paragraph 10 of the plaint has not been proved.

45. The plaintiffs case as to premises Nos. 1 and 2 Jagabandhu Baral Lane is that it was purchased by <NAME> in the benami of his wife <NAME> in 1928 for Rs. 78,000/-. <NAME> having no beneficial interest in the property was, therefore, not competent to create a trust in respect to the property on July 29, 1949, whereby after <NAME>'s death. <NAME> and her heirs would get the property. A further case made is that the deed was not acted upon. In the conveyance dated 15th February, 1928. there is no recital that <NAME> purchased the property with <NAME> money. The property was purchased through Messrs. <NAME>, solicitor and <NAME>, an assistant of the solicitor's firm, proved the conveyance. Beyond proving the conveyance, he was not able to say whether the purchase money was <NAME>'s or <NAME>'s. The deed of settlement dated 29-7-1949, recites that the property was purchased by <NAME> with her <NAME> money. Comment of Mr. <NAME> is that this recital is an afterthought. In my judgment, neither the absence of recital in the conveyance of 1928 strengthens the plaintiffs case, nor its presence in the settlement deed of 1949 weakens it. The facts that the <ORG> rate bills were in the name of <NAME>. not as a trustee but as before or the rent receipts were granted to the tenants by <NAME> not as a trustee are not evidence of any great weight to prove that the deed was not acted upon. The evidence tendered by the plaintiffs witnesses <NAME>, <NAME> and <NAME> to the effect that <NAME> paid the consideration money is really no evidence at all, because they had no knowledge of it. It is wishful thinking, pure and simple, <NAME> might have been brought from a poor family, but I disbelieve <NAME> when he said that <NAME> had to pay several thousand rupees to <NAME>'s father at the time of marriage, I nave already noted that these witnesses are not dependable witnesses at all. I attach no importance to their oral testimony as to who was the owner of the property -- <NAME> or <NAME>. The mere fact that <NAME> came from a poor family led these witnesses to infer that in 1928 <NAME> could not have her own money to purchase this property <NAME> might well have been given money and ornaments by her husband after her marriage. Indeed, plaintiffs own witness <NAME> stated that <NAME> had considerable ornaments and jewelleries of her own. The plaintiffs own case is that <NAME> had ample ornaments, jewelleries and cash, which <NAME> and her husband is alleged to have misappropriated or secreted. The onus of proving benami is On the person alleging it. To prove benami the plaintiff must prove that it is <NAME> and not <NAME> who paid the purchase money. There is no evidence worth the name to that effect. Mr. <NAME> submitted that the doctrine of advancement by husband to wife or father to son does not apply to India. That question however can only arise when it is proved that <NAME> paid the purchase price when the Conveyance was taken not in his name but in the name of <NAME>, his wife. In the absence of any such evidence in the instant case, the doctrine relied on by Mr. <NAME> has no application. I hold that plaintiff has failed to establish benami and the ostensible owner <NAME> must be held to be the beneficial owner of the property as well. Once it is proved that <NAME> is the beneficial owner <NAME> inherits the property on <NAME>'s death as sole heir. It becomes imimaterial therefore whether the deed of settlement was acted upon or not. I am not however holding that the deed of settlement has not been acted upon. Such evidence as has been led by the plaintiff is not enough to enable me to record such a finding.

46. In the result, the suit is dismissed. Having regard to the relationship between the parties I make no order as to costs. I certify that this is a fit case for employment of two counsel.