1. This is an appeal in a suit instituted by the plaintiff for declaration of his title to a one-third share in certain property purchased by him from Rashmoni and her adopted son Purna Chandra Roy in the year 1896 (1303 B.S.). The other property in suit has not been alluded to in the argument on this appeal. Rashmoni was the daughter of Jugal Kishore who was one of three brothers. Both the lower Courts have given plaintiff a decree for the one-third share.
2. In second appeal two contentions have been raised: first that the authority to adopt conferred on Rashmoni by her husband, by means of an 'Anumatipatra' has not been strictly proved; and secondly that the share of Jugal Kishore was not one-third but one-sixth in the lakhraj property in suit.
3. It is true that the Anumatipatra was not produced in evidence, but in our opinion it was not necessary to prove that document. Purna Chandra Roy was taken in adoption by Rashmoni some thirty-four years ago and all parties including the defendant-appellant herself by their acts and conduct recognize the validity of the adoption. It is the case of no one that the power to adopt was not strictly pursued. To facts like these, Section 91 of the Indian Evidence Act has no application and the decision in Krishna Kishori Chaudhrani v. Kishori Lal Roy 14 C. 486 (P.C.); 14 I.A. 71 cited for the defendant-appellant does not assist her, because secondary evidence of the contents of the Anumatipatra has not been given. It has been sufficiently found that the adoption duly took place in virtue of an Anumatipatra.
4. With regard to the second contention, we observe that it is now raised for the first time. All we need say is that Exhibit--2 on which the argument is founded does not prove that the share of Jugal Kishore was only one-sixth. He being one of three brothers was entitled to a one-third share and that was the share purchased by the plaintiff.
5. The appeal fails on both the points taken and is dismissed with costs.