Bapna, J.
1. This is a second appeal in a suit for redemption.
2. One Prayagdas and his son Budhraj mortgaged a house with Hukamdas as a security for the loan of Rs. 1,500/- on Besakh Vadi 12, Smt. 1984 (17-4-1928). Prayagdas delivered possession of the property to the mortgagee and executed a lease of the same in favour of the latter at a rent of Rs. 15/- per mensem. Prayagdas had another son Deo Kishen who had died in his lifetime leaving a widow Shrimati Suraj Kanwar. Suraj Kanwar adopted Nanuram on 20-3-1929. Budhraj died leaving a widow Mst. Shanti.
Hukamdas sued Prayagdas for arrears of rent and a decree was passed on 15-12-1931 against Mst. Suraj and Mst. Shanti as legal representatives of Prayagdas and in execution of that decree the house was put up for sale. Mst. Suraj Kanwar applied to the court for permission to raise money on security of the house and on such permission being granted. Suraj Kanwar mortgaged the house for Rs, 600/- to Chhotmal 9n 5-6-1934. In the meantime, Hukamdas died and his son Jethmal assigned his mortgagee rights in the property to Chhotmal on 16-4-1944. Chhotmal sub-mortgaged his rights under the two mortgages to Samarathmal on 14-8-1944.
3. On 21-11-1944, Nanuram, the adopted son of Deokishan, brought a suit for redemption of the first mortgage which had been made in favour of Hukamdas and assigned to Chhotmal. During the pendency of the suit, Chhotmal 'sub-mortgaged the property a second time with Bhajandas and paid off Samrathmal on 27-5-1945. Bhajandas also took a sale deed of the property from Mst. Suraj Kanwar for Rs. 6,000/- and thereafter made an application for being made a party to the suit.
The application was allowed whereafter Ehajandas filed his written statement and took several pleas by way of defence to the suit one of which was that Nanuram's adoption by Mst. Suraj Kanwar was not valid as there had been no ceremonies of giving and taking. The trial Court decreed the suit for redemption on payment of Rs. 1,500/-. On appeal, the decree was modified by increasing the amount to Rs. 1,594/3/-.
4. The defendant has filed this second appeal and the first point raised is that the lower courts have erred in holding the adoption of the plaintiff to Deokishen as proved merely on proof of the deed of adoption executed by Mst. Suraj Kanwar. It was contended that in the absence of proof of the ceremony of giving and taking having been performed, the issue as to adoption should have been found against the plaintiff. It was urged by learned counsel for the respondent that a deed of adoption had been executed by Mst. Suraj Kanwar and this was the only requisite condition for an adoption under the law in force in Marwar. The validity of the deed was also challenged by the appellant on other grounds with which we are not concerned at present.
5. The question whether the ceremonies of giving and taking were necessary for the validity of an adoption in Marwar was argued as a preliminary question in this case and we propose to give a finding on that question at this stage before proceeding to hear arguments on various other questions which are involved in this appeal. It may be pointed out that in another case which came before us, the same question had been argued and the judgment in that case had been reserved as before conclusion of the arguments, this appeal had been filed and learned counsel appearing for the appellant stated that he would place much more material before this Court than had been done in the earlier case.
6. Under Hindu Law, except as modified by custom, no adoption is valid unless
(1) the person giving in adoption is competent to give in adoption;
(2) the person adopting is competent to take in adoption;
(3) the person to he adopted is capable of being given and taken in adoption; and
(4) the formalities essential to the validity of an adoption are carried out.
The appellant's contention is in respect of the last requirement. The various formalities are, (i) the physical act of giving and receiving in adoption, (ii) the 'datta homam', and (iii) other minor ceremonies such as 'putreshti yag' It has been held by their Lordships of the Privy Council in -- 'Shoshinath v. Krishnasunderi', 7 Ind App 250 (PC) (A), that the physical act of giving and receiving is absolutely necessary to the validity of an adoption and this is so not only in the case of twice-born classes but also in the case of Sudras. It is the operative part of the ceremony, being that part of it which transfers the boy from one family to another.
According to Dattaka Mimansa and Dattak Chandrika, the 'datta homam' is the most important rite in the case of the three higher classes and is necessary to the establishment of filial relation. But according to a course of decisions, it has been held that 'datta homam' is not essential even in the case of twice-born classes when the adopted son belongs to the same 'gotra' as that of the adoptive father (Mayne on Hindu Law, 11th Edition, page 238). There is a difference of opinion among the High Courts in India whether 'datta homam' is essential among the twice-born classes in other cases. It is settled that the other minor ceremonies are not essential to the validity of an adoption.
7. Learned counsel for Nanuram respondent argued that according to the decisions of the Chief Court of Marwar it was not necessary to perform the physical act of giving and taking and only a registered deed of adoption was necessary. He cited a number of reported and unreported cases in support of his contention. The earliest case is an unreported decision in -- 'Jaswant Dan v. Mst. Agran'. Civil Appeal No. 33 of 1931-32 (Jodh CC) (B) decided by the Chief Court on 6-10-1932. This decision was by Topan Ram C. J. and Noratanmal J. They observed:
'Here in this State a registered adoption deed is considered necessary for adoption and other ceremonies are not so much insisted upon. In Hindu Law strictly an orphan could not be adopted as the ceremony of giving a child in adoption was considered essential; but as this aspect of the adoption ceremonies is not now so much strictly adhered to, we don't think an orphan can be debarred from adoption on this score.''
8. In -- 'Ram Singh v. Baney Singh', Civil Appeal No. 64 of 1935-36 (Jodh. CC) (C), which is also an unreported case, decided on 12-8-1937, Nawal Kishore C. J. and Ranjitmal J. while dealing with the contention that the defendant's adoption was invalid as he was an orphan, observed as follows :
'The general rule of Hindu law is no doubt against the adoption of an orphan and is based on the bread principles that there is no possibility of giving the boy as an adopted son. In Marwar, however, the ceremony of giving and taking is not an essential requisite of a valid adoption and therefore this strict principle of Hindu law has no force here.'
They referred to the decision in Civil Appeal No. 33 of 1931-32 (B) and proceeded further that
'Even under strict Hindu law this principle is modified by custom, and so far as Marwar is concerned, it has been authoritatively held by His Highness the Maharaja Sahib Bahadur in a judgment, in -- 'Mst. Gogi v. Jodhraj', that the general custom of Marwar does not debar an orphan from adoption.'
The same Bench decided another case --'Baktawarlal v. Godawari', 1939 MLR 30 (D), in which it was observed :
'The next question is whether Kishorilal was an orphan on the date of his adoption and if so, is his adoption invalid. We consider that so far as the first part of this question is concerned, it is wholly unnecessary to go into it as according to law now prevailing in Marwar the ceremony of giving and taking is not at all necessary and all that is required is a registered deed of adoption. Consequently the adoption of an orphan, if evidenced by a registered deed of adoption-must be held to be valid in Marwar.'
9. Learned counsel for the appellant argued that neither by law in Marwar nor by any local custom the ceremony could be dispensed with. He relied on certain observations in the decision of the Chief Court dated 18-3-1914 in -- 'Mst. Hastu v. Bodia (E)', published in the Marwar Gazette of 16-5-1914 :
'Now we come to the larger issues in the case. In the first place, was the adoption legal? Was there an adoption at all? We have a registered deed of adoption. Now Marwar observes the general principles of Hindu law. We would refer to the Administrative Report of A. D. 1886 to show that the country is governed by the general principles of Hindu Law. It is true that the State demands certain things over and above what is required under the Hindu Law, viz., in an adoption case, the Hindu Law is silent about any deed being required, whether (registered) or unregistered, but in Marwar, for the general safety of the community a law has been passed whereby the Courts are precluded from recognising an adoption unless the same has been duly registered.'
According to the facts found by the Chief Court, Bodia had been adopted by Mst. Hastu by a registered deed of adoption but the adoption was stated to be to Mst. Hastu and not to her husband. By another registered deed Bodia's natural father had agreed three days after the adoption that if Bodia ill-treated Mst. Hastu or her daughter the adoption was liable to cancellation. The Chief Court submitted the case to the Council of Regency for a decision on two questions :
'(1) In Marwar does the broad principle of Hindu Law prevail, viz., that a widow adopts to her husband and not to herself?
(2) Can an adoption once made be cancelled for any reason such as cruelty or misconduct on part of the person adopted?'
and further recommended that it may be declared that the Marwar Darbar still enforces the principle that a valid adoption in order to be recognised by the courts must be in writing and duly registered. The Council decided on 11-4-1914 :
'(1) In Marwar the law of adoption is governed by broad principles of Hindu Law. A widow when making an adoption adopts not for herself but for her husband.
(2) A valid adoption cannot be cancelled.
(3) The Darbar enforced the principle that a valid adoption in order to be recognised by the Courts must be in writing and duly registered.'
10. So far as the judgment of the Council of Regency is concerned, the observation that in Marwar the law of adoption is governed by broad principles of Hindu law would seem to refer to the particular point in dispute as to whether a widow when making an adoption adopts not for herself but for her husband. In the judgment of the Chief Court, however, the observations do support the view that the requirement of a registered deed of adoption is over and above what is required under the Hindu law for the validity of an adoption.
11. Learned counsel for appellant relied on a few unreported cases. The first is -- 'Bha-but Singh v. Raj Advocate', Civil Original case No. 10 of 1914-15 (F) decided by the Chief Court on 30-1-1915. The claim of Bhabut Singh was that he had been adopted by the widow of Fateh Singh. The ceremony of adoption had been gone through and a deed of adoption was executed but it was not registered. Dul Singh a collateral claimed that he had been adopted by Fateh Singh in his lifetime.
The claim of the State was that the landed property of Fateh Singh lapsed to the State on failure of heirs in the line of the original grantee. As regards Dul Singh, it was held that at the time of the alleged adoption no ceremonies were performed and there was no deed either in his favour. Dul Singh's claim was negatived. It was also found that no case of lapse to State was made out. As regards the claim of Bhabut Singh, the observations of the Chief Court were :
'Our previous findings have shown that the Durbar is precluded from claiming this Thikana as having lapsed for want of an heir in the Moris Ala. We are of opinion that the interests of the Durbar will not be affected by the recognition of any particularone of the many heirs to this Thikana. We therefore advise the Durbar to acknowleage the adoption of Bhabut Singh and to order the completion of the same by the registration of the adoption deed ............ In theseso-called adoption cases, which so far as State interests are concerned are really cases of succession, and it rests with the Durbar to recognise any particular person as the successor or not ............... To set asideBhabut Singh's adoption merely on the ground of want of registration would not be equitable, for it has again to be repeated that this rule regarding registration was made not to bind the Durbar but to protect the litigating parties in Court.'
The orders of the Council were passed by Resolution No. 1 on 4-8-1915 :
'Resolved that Bhabut Singh's adoption be recognised and the village of Odit be given back to him. The Vice-president dissented.'
This case is no authority for the proposition that ceremonies were necessary for adoption although ceremonies were gone through in this case. All that this case purports to show is that an adoption without the accompaniment of a registered deed was given effect to on the ground that it was up to the Durbar to recognise an adoption even if the deed was unregistered if the matter related to a State grant.
12. The second unreported case is --'Amkanwar v. Ganpat Singh', Civil Appeal No. 351 of 1924-25 (G) decided on 7-6-1927. In this case, Ganpat Singh was adopted by Aney Singh some time in Smt. 1958 attended with all ceremonies but the deed of adoption was executed in Smt. 1970. Aney Singh died before getting the deed registered and his widow adopted Govind Singh under a registered deed, Following the decision in 'Bhabut Singh's case (F)', the adoption of Ganpat Singh was upheld by the trial Court. On appeal by the widow and Govind Singh, various decisions of the Chief Court were produced in which the claim of adoption unaccompanied by registered deed was negatived and in one of them --'Pusaram v. Shankerlal (H)', decided by the Chief Court on 11-1-1921 -- it was observed.,
'By laws of Marwar, it is required for an adoption in order to be considered valid that there should over and above other proofs be an adoption deed duly registered.'
The Chief Court, however, was of opinion that the case was on all fours with that of Bhabut Singh and agreed with the lower court. One more reason was added by reference to certain provisions of the Marwar Registration Act that the unregistered deed of adoption executed by Aney Singh was not inadmissible in evidence in that case. This decision by itself only Shows that in this case also an adoption was given effect to in the absence of a registered deed but does not touch the question whether the ceremony of giving and taking was essential for the validity of adoption.
13. Learned counsel next relied upon --'Nagji v. Kesha', 1931-32 MLR 56 (I) where a Division Bench of the Chief Court of Jodhpur referred three questions to Full Bench :
'(1) Whether the Resolution dated 11-4-1914 to the effect that 'Darbar enforces the principle that a valid adoption in order to be recognised by the courts, must be in writing and duly registered' has a retrospectiveeffect and all adoptions whether in writing or oral before introduction of the Marwar Registration Act are invalid for want of duly written and executed registered deeds.
(2) Whether the adoption made after the passing of the Marwar Registration Act and before the promulgation of the said Resolution can be proved by oral evidence of ceremonies etc. when there is no written adoption deed.
(3) Whether in case of the execution of an unregistered adoption deed before the passing of the said resolution and after passing of the Marwar Registration Act, the fact of adoption can be allowed to be proved by oral evidence of ceremonies, etc. ignoring the adoption deed.'
The Full Bench which consisted of Topan Ram C. J. and Ranjitmal and Noratanmal JJ,, answered all the three questions in the negative although an opinion was expressed in the body of the judgment that adoptions could be made with or without a document in writing; but if there was a document it must be registered before it could be admitted in evidence. The Judges, however, felt bound by a decision of the Ijlas-i-khas in case No. 19 of 1927-28 where it was held that to make an adoption legal according to the local law, it should have been reduced to writing and also registered.
14. Strictly speaking that judgment only decided that no adoption could be recognised in the absence of a registered deed ot adoption after the introduction of the Marwar Registration Act and it did not consider the question that is now before this Court, viz., whether the existence of a registered deed of adoption was a requirement in addition to the requirement of the ceremony of giving and taking the boy in adoption under the Hindu law.
15. We have had the advantage of consulting the record of Ijlas-i-khas case -- 'Ram Singh v. Baney Singh', (case No. 19 of 1927-28) and it appears that the Special Committee appointed to decide the Uzardari came to the conclusion that Ramsingh had been adopted by the deceased Mansingh some time after 1899 but without any accompaniment of a registered deed of adoption. The Committee recommended that the defect of non-registration be condoned according to certain precedents.
As regards the claims of the rival claimant Baney Singh, the Committee's finding was that although he had in his favour a registered deed of adoption executed by the widow of Man Singh, the adoption was invalid as being contrary to the directions of the husband of the widow. The Maharaja decided on 28-3-1928 that
'to make the adoption legal according to local law, it should have been reduced to writingand also registered'
and therefore Ram Singh could not be accepted as the adopted son. As regards the adoption of Baney Singh, it was held that the widow having been a Darty to the deed could not be permitted to deny the same but Ram Singh was left to contest its validity in a court of law. It may be noted that the entire proceedings in this case were on the executive side.
16. Out of the cases cited by the parties, there are observations in two of them (i) --'Mst. Hastu v. Bodia (E)', and (ii) 'Pusaram v. Shankerlal (H)', which support the appellant'scontention that the requirement of the deed of adoption in Marwar was considered to be over and above the requirements of Hindu Law for the validity of an adoption. It also appears that although the Marwar Law of Registration which mentioned the deed of adoption to be compulsorily registerable was brought intc force some time in 1899, the definite pronouncement that a registered deed of adoption was necessary for validity of adoption was made in 1914 in 'Mst. Hastu's case (E)'.
Then there was a deflection and in the case of Bhabut Singh (F) in 1915 and of Amkan-war (G) in 1927, the adoptions came to be recognised even when not accompanied by registered deeds of adoption. This trend was arrested by the decision of the Maharaja in Ram Singh's case in 1928 when it was reiterated that
'to make the adoption legal according to local law, it should have been reduced to writingand also registered.'
In Nagji's case (I) all the three Judges of the Chief Court were inclined to reopen the decision in Hastu's case (E) by expressing an opinion that an adoption could be made with or without a document in writing but if there was a document, it must be registered before being admitted in evidence, but the learned Judges felt bound by the decision of His Highness in Ram Singh's case, (No. 19 of 1927-28) and gave answer to the reference accordingly.
It appears that the great emphasis on the existence of a registered deed of adoption given by the Regency Council in Mst. Hastu's case (E), reiterated by the Maharaja in Ram Singh's case in 1928, and accepted by the Full Bench of the Chief Court in Nagji's case (I) (though with reluctance) focussed all attention on the requirement of a registered deed of adoption and further in view of the observation of the Maharaja (in case No. 19 on the executive side) that a widow could not be permitted to. deny the adoption when she had executed a registered deed of adoption a somewhat hesitant remark was made in the case of Jaswant Dan (B) that
'In this State a registered deed of adoption is considered necessary for adoption and other ceremonies are not now so much insisted upon.'
This was a bare statement which was not supported either by reference to the evidence of custom led in the case or by reference to the earlier decisions of the highest Court.
17. In the case of Ram Singh (Chief Court Appeal No. 64 of 1935-36 (C) ), which was an off-shoot of the earlier case, the restricted nature of the observation jn the case of Jaswant Dan (B) was done away with and a broad statement was made that
'in Marwar the ceremony of giving and taking is not an essential requisite of a valid adoption.'
This observation was made purporting to follow the case of Jaswant Dan (B) but no such decision was clearly given in the earlier case.
18. In the meantime, however, an important decision had been given by Ijlas-i-khas in --'Mst. Gogi v. Jodhraj' (decided on 28-4-1934). In that case the adoption of Punam Chand by Mst. Gogi was challenged on various grounds and the Ijlas-i-khas in upholding the adoption decided 'inter alia' as follows :
(1) It is the universal custom in Marwar which has been recognised uniformly by the courts in Marwar that no sanction of husband is needed for validating an adoption by a widow, and a widow has authority to make an adoption without the authority of her husband.
(2) An orphan boy among Jains is not disqualified for being adopted. Similarly, the general custom of Marwar does not debar an orphan from adoption.
The main question in issue in Appeal No. 64 of 1935-36 (C) was whetner the adoption of an orphan was valid, and following the decision in Mst. Gogi's case, the adoption was upheld.
19. All the three cases relied upon by learned counsel for the respondent are however cases of adoption of orphans and it may be that under the custom prevailing among the particular communities or perhaps in Marwar in general the adoption of an orphan boy may be permissible and in that case it is obvious that the ceremony of giving the boy by the father or mother may not be capable of being performed.
20. But from this it does not follow that in cases of adoption of persons other than orpnans, the physical act of giving and taking should not be necessary to be performed. As stated in an earlier part of this judgment, some of. the formalities pertaining to adoption are not necessary under the Hindu Law as applied in India, but the physical act of giving and receiving in adoption is indeed the essence of adoption.
The observations of the Chief Court of Mar-war in the three cases referred to above beginning with the case of Jaswant Dan (B) would seem to lay down a very wide proposition if they mean to say that the physical act of giving and taking is not necessary for adoption in Marwar even in cases other than those where the adoptee is an orphan. At any rate, those observations would not be justified according to the facts of those cases. It may be that formalities other than the physical act of giving and taking may not be necessary in Marwar where more importance has been laid on the execution of a registered deed of adoption.
21. If an existence of a registered deed is considered to be the only necessity in proof of adoption, various complications could arise as it is not clear whether such a deed of adoption has to be a bilateral document or a unilateral sne. Since a deed of adoption can be a unilateral document and is in most cases so, it would create a great anomaly if without the consent of the adoptee's father or of the adoptee himself in cases where by custom an adult person or an orphan could be adopted, the status of a person could be changed merely at the sweet-will of a third party. That would be a state of affairs which would be contrary to all notions of Hindu Law.
It would, therefore, be more in consonance with the principles of Hindu Law that there should be the physical act of giving and taking in the matter of adoption so that the agreement of all concerned may be known in such matters. It seems that the peculiar manners and custom of people in Marwar have favoured the setting up of adoptions inasmuch as in most communities a daughter is excluded from inheritance under the local custom and, there- fore, in the case of persons dying Sonless, there must have been too great an eagerness on the part of collaterals to put forward a claim to the entire property of the deceased on the basis of adoption and the State in order to put an end of irivolous claims insisted that deeds of adoption should be registered and interpreted the law in a manner which required that no adoption would be deemed to be valid unless evidenced by a registered deed.
The wide powers given to widows to adopt according to the customary law in Marwar is again responsible for insistence on a registered deed of adoption to prevent spurious claims of adoption after the death of widows. The performance of the physical act of giving and taking would further add to the precaution as to due publicity and prevent fictitious deeds of adoption from being brought into existence or deeds executed without full consciousness of the result of 'adoption.'
22. While giving and receiving are thus absolutely necessary to the validity of adoption. Hindu Law does not require that there shall be any particular form so far as giving and acceptance are concerned. For a valid adoption all that the law requires is that the natural father (or mother) shall be asked by the adoptive parent to give his son in adoption and that the boy shall be handed over and taken for this purpose-- (Mayne on Hindu Law, llth Edition, page 237).
23. Their Lordships of the Privy Council held in -- 'Biradhmal v. Mst. Prabhatahati', AIR 1939 PC 152 (J) that where a widow had entered into a deed of adoption whereby she purported to adopt a boy as a son to her deceased husband and the boy was present at the time when the Sub-Registrar put to his father and the widow the question whether they had executed the deed and the answer was in the affirmative, this was a sufficient proof to prove the giving and taking.
24. In our opinion, in Marwar, where the deed itself mentions that the boy had been given and received in adoption and nothing is shown whereby it may be inferred that the physical act could not take place as mentioned in the deed, a presumption does arise that the recitals in the deed have been truly made; since when a person goes to the length of sending for a scribe and executing the document and getting it registered, there is nothing to prevent him from performing the actual physical act of giving and taking. But if any party to the litigation can prove circumstances which would show that the physical act of giving and taking could not have been performed as recited in the deed of adoption, then it would be for the party setting up the adoption to prove by positive evidence that the physical act of giving and taking had taken place.
In other words, it would be for the party challenging the adoption evidenced by a registered deed to plead specifically that the physical act of giving and taking had not been performed and also to indicate the particular circumstances which would negative the presumption as to recitals being correct and thereafter to lead evidence which would show that the physical act could not have taken place as mentioned in the deed, and then the party relying on adoption is to prove by positive evidence that the physical act of giving and taking did take place.
25. It may be observed that in some of the decisions cited before us, the adoption of an orphan has been upheld, and a question would arise as to who can give an orphan in adoption. This question, however, need not detain us, as the present is not a case of an orphan having been adopted. That question can be left for decision according to the custom which may be proved in the particular case.
26. On the principles cited above, we find that the adoption deed Ex. P-l dated Falgun Sudi 10, Smt. 1985 executed by Mst. Suraj Kanwar in favour of Nanurarn mentions that Nanuram had been given in adoption by his father Chhotmal and taken in adoption by Mst. Suraj Kanwar. In the endorsement by the Registrar also, it is mentioned that the deed had been executed after taking Nanuram in adoption. There is, therefore, an initial presumption that the physical act of giving and taking took place and it will be for the appellant to show that that presumption can be negatived by circumstances on record which indicate that no giving and taking could take place.
27. As the question argued was only one of law and which has been decided as above, the case will be set down for further hearing.
(The second part of the judgment delivered on 4-8-1953 is as follows :)
Wanchoo, C.J.
28. This is the second part of the judgment in this appeal, the first part of which was delivered by us on 18-11-1952. The facts have all been given in that judgment, and it is, therefore, unnecessary to repeat them. We shall now take up the remaining points which have been urged before us and give our decision on them.
29. The first point, that is urged, is that one Sitaram, who was adopted by Budhraj's widow Mst. Shanti, was a necessary party to the suit, and as he had not been made a party and this was a suit based on mortgage, it should be dismissed. We find, however, that Sitaram was adopted pendente lite by Mst. Shanti. He applied for being made a party on the ground of adoption. That application was opposed by the plaintiff and was dismissed. Bhajandas. appellant, neither supported nor opposed that application. Bhajandas's case, therefore, never was, either in the trial Court or in the first appellate Court, that Sitaram was a necessary party, and that the suit should be dismissed because Sitaram was not made a party by the trial Court,
The question then arises whether we should permit the appellant to raise this point relating to Sitaram, for the first time, in second appeal. We are of opinion that we should not permit this, because the question whether Sitaram is a necessary party in this suit or not depends upon the decision of mixed questions of fact and law which have not yet been decided, namely whether Sitaram was in fact adopted by Mst. Shanti, and whether that adoption was valid. In this view of the matter we refuse to allow this point to be raised, and hold that the suit cannot be dismissed on this point.
30. The next point, that is urged on behalf of the appellant, is that he was a bona fide purchaser for value without notice of Nenurarn's adoption. This plea also was not taken in the. trial Court or in the first appellate Court,nor was the foundation for taking such a plea laid in the written statement filed by Bhajandas. The facts necessary to be proved to bring the case within the four corners of Section 41, Transfer of Property Act were not alleged by Bhajndas in the written statement, nor was this plea raised in the first appellate Court. Under these circumstances, we are of opinion that this plea is also not available to the appellant in second appeal.
31. The next point, that is urged, is that in view of what we have said in our judgment, dated 18-11-1952, the suit may be remanded for giving an opportunity to the appellant to prove that there was no giving and taking in adoption.
In this connection, we may refer to a part of our previous judgment which runs as follows:
(His Lordship quoted para 24 of the first judgment and proceeded :)
32. These observations clearly show that a mere denial by a party that giving and taking had not taken place when the adoption is by a registered deed and the deed mentions the fact of giving and taking is not enough. Along with this denial the party making the denial has also to allege the circumstances which would go to show prima facie that the physical act of giving and taking could not be performed. The party denying that giving and taking had taken place may, for example, show that, on the date on which the alleged adoption took place, the natural father, who was to give the child in adoption, was in Bombay while the person adopting was in Jodhpur where the adoption is alleged to have taken place. If such an allegation is made, evidence may be led to prcve that no giving and taking had taken place, and then the burden would shift on the person supporting the adoption to prove that in actual fact giving and taking had taken place.
In the case before us we asked learned counsel if his client could make any such allegation in writing; but as no such allegation is forthcoming, it is not necessary for us to remand the case for evidence because there is no point on which evidence can be led.
(The remaining part of the judgment is notnecessary for the purpose of reporting).