K.B. Panda, J.
1. The two plaintiffs who are son and mother respectively are in appeal against the order oi the Subordinate Judge, Navasarh dt. 28-8-1971 dismissing their suit for partition and giving possession of their 1/4th share in the ancestral properties as per schedule 'Ka' in the plaint, with certain incidental reliefs.
2. Admittedly, Sahadeb Naik, plaintiff No. 1. is the son of Raghunath Naik who is the natural son of Lingaraj Balabantrai, defendant No. 1, Plaintiff No. 2 is the mother of plaintiff No. 1 and widow of Raghunath. Defendant No. 2 is an agnatilc brother of defendant No. 1. They come from the common ancestor, one Arta. Schedule 'Ka' properties are the ancestral properties of the two branches, viz. defendant No. 1 and defendant No. 2. During the pendency of the appeal defendant No. 2 has died and his sons have been brought on record as legal representatives. Defendant No. 1 also died during the pendency of the appeal and a petition has been filed bringing to the notice of the Court about the same.
3. Both the plaintiffs claimed initially 1/4th share in the ancestral properties in which defendant No. 2 had eight annas share. Evidently out of the eight annas share of defendant No. 1 both the plaintiffs claimed a half share, i. e. 1/4th each, of the total ancestral properties. On 4-3-1970 defendant No. 1 had alienated under Ext. B Ac. 1.86 decimals of land in favour of defendant No. 2 under a registered deed. The plaintiffs in the suit claimed for a declaration that this was a nominal transaction which was not binding on them.
4. The case of defendants 1 and 2 is that the plaintiffs belonged to the branch of defendant No. 1 yet Rashunath, the husband of plaintiff No. 2 and father of plaintiff No. 1 having been adopted away to one Ananta. the father-in-law of defendant No. 1, they have lost their share in the natural family. Hence they claimed a dismissal of the suit.
5. The learned lower court framed five issues. On the plaintiff's side there are six witnesses out of whom P. W. 5 is plaintiff No. 2. and on the defendant's side there are five witnesses of whom defendant No. 2 is D. W. 4. On an assessment of the oral and documentary evidence the learned lower court held that the family to which the parties belong is Sudra; that adoption of a daughter's son in such a family is permissible; that Raghunath. father of plaintiff No. 1, had been adopted to his maternal grandfather while he was aged about two and therefore the plaintiffs are not entitled to any share in the natural family. Also he held that Ext. B executed by defendant No. 1 in favour of defendant No. 2 is a valid transaction with passing of consideration and hence not a nominal deed.
6. Mr. Kar. the learned counsel for the plaintiff-appellants, contended that there is no evidence worth the name to justify the finding of the learned Lower Court that Raghunath had been given in adoption to Ananta. his maternal grandfather; that in, the absence of any such proof the admitted position being that the plaintiffs belong to the family of the defendants, they have a legitimate share in the ancestral properties which on no account can be denied to them.
In view of the contentions of the parties, the crucial point for consideration is if the plaintiffs have continued to be in the family of the defendants, i. e. their natural family, or Raghunalh had been given in adoption to another family and therefore they have lost their interest in the properties of the family to which they belonged originally. From this it can be safely held that the hub of the question is whether Raghunath had been given in adoption to Ananta. and the entire controversy revolves round that point.
On the defendant's side evidence had been led to the factum of adoption by p. Ws. 1. 2 and 4. Out of them, as already indicated. D. W. 4 is none but the natural grandfather of plaintiff No, 1 According to the defence version, the adoption was while Raghunath was aged about two and it was towards the year 1922. D. W. 1 who is a man of the same village namely Gadadhar Prasad and is aged about 65 states that Raghunath while he was aged two years was given in adoption and he was present at that time. The adoption took place in summer. By that time the mother of Raghunath had died. The other persons who were present at the time of adoption according to him are Budhi Swain. Bhagirathi Samantara, himself, Hazari (D. W. 2) and Senal. His further evidence is that after the adoption Raghunath remained in Itamati with his adoptive father, was educated there and got married there. The comment against his evidence was that in corse-examination he has stated that he was not present at the time of adoption. This is a misreading of the evidence of the witness in cross-examination. He states this with reference to the custom of taking daughter's son in adoption referred to in paragraph 4 of his statement.
D. W. 2 also refers to the factum of adoption and as to how Ananta, maternal grandfather of Raghunath adapted Raghunath at village Gadadhar Prasad. The comment against his evidence is that he has not stated if any Purohit was there; that there was any Bhogras and that whether any caste-men were present. Also it was commented that he is a poor labourer and so his evidence is of little value.
7. On the side of the respondents it was contended that this adoption bein; rery old. positive evidence of the factum of giving and taking has become scarce; but according to the respondents there is ample evidence, circumstantial, to establish the fact of adoption. However, the respondents lay great stress and right so, on the evidence of the natural father of Raghunath who was alive and had deposed against the plaintiffs. Defendan No. 4 has categorically stated how his father-in-law asked him to give his son Raghunath in adoption and he agreed to the same. His further evidence is that his first wife had died and child Raghunath was then about two years old. He was intending to marry for the second time and so he willingly gave his son in adoption to his father-in-law. Thereafter his father-in-law looked after the education of Raghunath, performed his marriage and there Raghunath also breathed his last while staying with Ananta. His further statement is that the plaintiffs were all along at Itamati; that plaintiff No. 1 was born at Itamati and that both the plaintiffs had never come to their village claiming possession of the suit lands. He also states how there had been a partition of the ancestral properties in which defendant No. 2 had got nine annas share and himself seven annas share. This partition was about 25 years back from the date he was deposing. It is in his evidence that he did marrv for the second time and had a son and a daughter, but both did not live long. By the time he was deposing his second wife was also dead. A pertinent question, therefore, arises as to why this grandfather of plaintiff No. 1 who according to the defence case had given Raghunath in adoption to his father-in-law would depose against the plaintiff and in favour of defendant No. 2. No satisfactory explanation was given from the side of the appellants to explain this situation. The only insinuation was that defendant No. 1 is now depending for his food on defendant No. 2's wife and that is why he was interested in deposing in favour of defendant No. 2. This can hardly be a ground for defendant No. 1 to 'give up the cause of his grandson and lean in favour of a separated agnetic brother. Therefore, to conclude the comment that there is no oral evidence regarding the factum of adoption is not correct. True, this adoption is rather old. but since the father of the bov giving in adoption was living he has come and deposed about the factum of adoption. Nothing more is expected of the defendants to establish that fact. Coupled with it there are several circumstantial evidence which are very telling and they support the defence case of adoption of Raghunath bv Ananta. The learned lower court has elaborately discussed those circumstantial evidence and it would be unnecessary to reiterate the same here. All the same I would like to mention a few. To begin with in the school register at Itamati under Ext. A which is of the year 1928 it is shown that Ananta was the father of Raghunath. This document has been obtained from its proper custody and is a document which is more than 30 years old. There is nothing to disbelieve the contents of this document wherein Ananta has been described as the father of Raghu-nath and not defendant No. 1. That apart the consistent evidence is that Raghunath remained under the care and protection of Ananta all through till his death and it is Ananta who had got Mm married. This situation was endeavoured to be explained away bv saving that since defendant No. 1 accepted a second wife naturally the young child had to be brought up bv his maternal grandfather. But that did not mean anv adoption. This leads to another circumstance which goes against this alleged theory of merely bringing up of Raghunath bv Ananta. Ananta's surname is Naik though he had a title as Samanta-rai. Plaintiff No. 1 himself has described himself in the plaint as Sahadeb Naik, son of Ragbunath Naik. Defendant No. 2 is Biswanath Jena. The title of the family of defendants 1 and 2 is therefore Jena. Had Raghunath not been given in adoption he would be continuing his old title Jena and should not have assumed the title of Naik which is the title of Ananta's family. This change of title is also a factor to indicate that Raghunath had really been adopted by Ananta. After the death of Raghunath, in the year 1949 under Ext. 1 Ananta has alienated all his assets under a registered deed valued at Rs. 100 only in favour of plaintiff No. 1 while he was a minor of four. Admittedly, this Ananta survived seven years of the execution of the document. It is in the evidence of plaintiff No. 2 as P. W. 5 that the entire assets of Ananta were alienated under Ext. 1 in favour of plaintiff No. 1. If really Raghunath was being brought up by Ananta it is hard to believe that he would alienate all his assets in favour of Raghunath's son without keeping anything for himself or for his wife and that too in the manner he has done valuing the property at Rs. 100/- only and in favour of a child who was not represented by any guardian. All these circumstances taken together only indicate that really Ananta had adopted Raghunath and that is the only explanation that is compatible with the circumstances indicated above.
8. There can be no other possible theory available to explain the adverse circumstances appearing in evidence against the plaintiffs. Thus on the testimony of defendant No. 1, the natural father of Raghunath and the grandfather of plaintiff No. 1, coupled with the evidence of D. Ws. l and 2 and the circumstantial evidence, there is no escape from the conclusion that Raghunath, father of plaintiff No. 1. had really been given in adoption and had lost his interest and share in his natural family. That being the finding, the suit for partition of the assets in the ancestral properties of Ananta does not arise. Plaintiff No. 1 cannot enjoy the properties of the family to which his father had been given in adoption and also claim a share in the natural family to which his father belonged. Thus their suit claiming partition must fail.
9. The other question regarding declaration of Ext. B to be a nominal document does not arise for consideration in view of the above finding.
10. It was alternatively contended by Mr. Kar that the learned lower court has not framed any issue regarding the factum of adoption and as such the case be remanded for re-trial. From the pleadings it is clear that the sole controversy was over the fact as to whether Raghunath had been given in adoption to Ananta or not. It is on that basis that the defendants claimed dismissal of the suit. Both the parties being conscious of that situation adduced evidence. The learned lower court has given a positive finding that the plaintiffs are not entitled to a share in the properties of their natural family on the basis that Raghunath had already been adopted bv Ananta. Therefore the question of adoption was indissolubly linked up with the question of claiming a share in the suit for partition. The parties having adduced evidence and there being a finding on the question of adoption there is no justification for remanding the case for re-trial on the same issue which has been constructively decided and the res is no more open for challenge. In that view of the matter the contention of Mr. Kar can hardly be accepted.
11. Certain incidental questions were raised to throw some doubt over the factum of adoption which need not detain us much. For instance, it was said that Raghunath being the daughter's son could not have been adopted by Ananta which is against the general principle of Hindu Law. Secondly it was contended that Ananta is of a higher caste, namely Mahanayak whereas defendant No. 1 is a Chasa by caste and so there could not have been an adoption as alleged by the defence. It was also contended that there is absolutely no evidence of any ceremony having been performed at the time of the adoption. It is in evidence and admitted by the parties that both Ananta as well as defendant No. 1's familv are Chasae by caste, and that is borne out in the record of rights (Exts. C and D/1). P. W. 1 himself has admitted that Ananta and D. W. 1 belonged to the same oaste. Besides, defendant No. 1 had married the daughter of Ananta. So the question of a different caste does not arise in the circumstances. Chasas have been admitted by both the parties to be Sudras. For Sudras no ceremony is necessary to ac-company an adoption.
In Article 633 of Mulla's Hindu Law it has been said that adoption amongst Sudras is a purely secular transaction and no ceremonies are necessary in addition to the giving and taking of the boy in adoption. Adoption of a daughter's son is valid by custom, though not according to the general principle of Hindu Law. In this case evidence has been led that such custom is prevalent in the caste to which the parties belong.
12. Thus I do not find any merit in the contentions raised on behalf of the appellants regarding the invalidity of the adoption in this case.
13. In view of my above findings, which are concurrent with the findings of the learned lower court I would hold that the plaintiffs had no share in the properties claimed by them, and as such their suit for partition has been rightly turned down. As it appears, the plaintiffs being greedy have attempted to get a slice from the properties in this suit after enjoying all the properties belonging to the family to which Raghunath had been given in adoption. In the circumstances the defendant-respondents are entitled to exemp-lary costs.
14. Thus, while dismissing the ap-peal, I would award exemplary costs to the defendant-respondents. Hearing fee of Rs. 200/-.