Jagdish Sahai, J. - (1.) This is a defendant's first appeal. The plaintiff-respon-dent Srimati Kishan Dei is the widow of one Lala Madan Gopal who was admittedly the last mate owner of the properties in dispute. The defendant-appellant Lala Babu Ram alias Brij Kishore is the son of Srimati Sohini Devi, daughter of Lala Narain Dass, who was the paternal uncle itatners brother) of Lala Madan Gopal aforesaid. The plaint allegations are as follows :-- Lala Ram Dass, the father of the defendant-appellant Lala Babu Ram had considerable influence upon Lala Madan Gopal with the result that the latter declared the aeren-dant-appellant to be his adopted son on the 21st of May, 1940 and changed his name from Babu Ram to Brij Kishore. Lala Madan Gopal died on the 8th of October, 1942, and the plaintiff as also the defendant entered into possession or the property in dispute. The property was managed By the defendant-appellant. With the lapse of time the defendant-appellant became indifferent to the plaintiff and started ill-treating her with the result that the plaintiff had to start a separate mess. The defendant-appellant also started destroying the property left by Lala Madan Gopal. In April 1946, the plaintiff had legal consultation and was advised that under the Mitakshara law La!a Madan Gopal could not have adopted the defendant-appellant who was his causin sister's son with the result that the adoption was invalid and void and that she was the exclusive heir of Laia Madan Gopal. The relief claimed in the plaint was for possession over the property in dispute to the exclusion of the defendant ana in the alternative to one-half share in the same if the Court found the adoption of the defendant to be valid. A decree for Rs. 2,000/- was also prayed for as mesne profits.
(2.) In the written statement filed by the defedant-ap-pellant it was admitted that his mother's father Lala Narain Dass was the uncle of Lala Madan Gopal. It was also admitted that on the death of Madan Gopal the plaintiff and the defendant became the owner of the property left by Laia Madan Gopal. The suit was contested mainly on the pleas that Lala Madan Gopal had adopted the defendant as the former inherited the entire property belonging to Lala Narain Dass, that the adoption of the defendant was valid both under the Mitakshara law as also under the custom prevailing among the Rastogi Banias, that the adoption having taken place on the 11th of May, 1940, and not on 21st May 1940, the suit was barred by limitation and that Lala Madan Gopal having adopted the defendant in the presence of the plaintiff and after the adoption having married him with the consent of the plaintiff, the plaintiff was estopped from pleading that the adoption was invalid on this ground as also on the ground that after the death of Lala Madan Gopal the plaintiff and the defendant executed a deed of gift in favour of Smt. Rajeshwari, the plaintiff's (laughter, in wmcn the defendant was described as the adopted son of Lala Madan Gopal.
(3.) The learned Civil Judge framed the following nine issues in the case: "1. Did Madan Gopal deceased leave the movable property detailed in the list A of the plaint? If so, are items 6 to 8 and. 14 and 15 in the possession of the defendant? 2. Did Madan Gopal deceased leave movable property detailed in the list fifed with the written statement? 3. Was the defendant, adopted by Madan Gopal on 11th May, 1940, as alleged by the defendant? 4.Is the adoption of the defendant void as alleged by the plaintiff? If so, its effect? 5.Is the adoption of the defendant valid as alleged by the defendant. If not is the plaintiff barred from impeaching it by limitation? 6.Is there a custom of the adoption of sister's sons prevalent in the caste of Rastogis as alleged 7by the defendant In para 14 of his written- statement? 8.is the plaintiff entitled to any mesne profits? If so at what amount? 9.To what relief, if any, is the plaintiff entitled? Is plaintiff estopped from questioning the validity 01 the adoption? "On issue No. 1 the learned Civil Judge recorded the finding that Lala Madan Gopal left behind certain debts as aiso some moveables which are mentioned in the inventory prepared by the Commissioner and the defendant is in possession of the same. The learned Civil Judge decided issue no. 3 and the second part of issue No. 5 in the negative. On issue No. 2 the learned Civil Judge recorded the finding that me ornaments mentioned in the list attached to the written statement were stridhan property of the plaintiff and did not belong to Lala Madan Gopal. He also held that the defendant had failed to prove that any cash belonging to Lala Madan Gopal was in possession of the plaintiff. Issue No. 9 the learned Civil Judge answered against the defendant and in favour of the plaintiff by holding that the plaintiff was not estopped from raising the plea of the defendant's adoption being illegal and invalid. The learned Civil Judge answered issue No. 4 in the affirmative. He also held that the plaintiff is the sole heir of Madan Gopal and decided the first part of issue No. 5 and issue No. 6 also against the defendant. He answered issue No. 8 in favour of the plain-tiff and substantially decreed the suit on the 19th of December, 1960. This first appeal is directed against that decree.;