WANCHOO, C. J. - (1.) THIS is the second part of the judgment in this appeal, the first part of which was delivered by us on the 18th November, 1952. ( (See Bhajandas vs. Nanuram (1953 RLW. 92)) The facts have all been given in that judgment and it is, therefore, unnecessary to repeat points which have been urged before us and give our decision on them.
(2.) 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. Bhajanda's case therefore, never was either in the trial court or in the first appellate court, that Sitarani 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 questions 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. The next point, that is urged on behalf of the appellant, is that he was bona fide purchaser for value without notice of Nanuram'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 sec. 41 of the Transfer of Property Act were not alleged by Bhajandas 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. The next point, that is urged, is that in view of what we have said in our judgment, dated 18th November, 1952 (Bhajandas vs. Nanuram (1953 RLW. 92)) 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: - "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. " 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, oh 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 allegation is made, evidence may be led to prove 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 last point is about the amount that is due on the mortgage deed. There are two sums which the appellant claims. The first is a sum of Rs. 600/-on the basis of the mortgage deed by Mst. Suraj Kanwar in favour of Choth Mal, dated 5th June, 1934. So far as that document is concerned, it is enough to say that the appellant, in his written statement, alleged that the transaction was fictitious, that nothing was really borrowed from Chothmal who was the brother of Mst. Suraj Kanwar's son-in-law, and the decretal amount had really been paid by Suraj Kanwar out of her own money (vide paragraph 8 of the additional pleas ). In the face of these allegations in the written statement, it does not lie in the mouth of Bhajandas appellant to claim this sum as due to him as if that mortgage represented a genuine transaction. The other amount, which the appellant Bhajandas claims, refers to the interest from Asoj Badi 12, Svt. 1987 to Sawan Badi 7 Svt. 1991. This is the second period mentioned in the judgment of the first appellate court. It appears that before Asoj Badi 12, Svt. 1987 the mortgagor was himself in possession, and the amount due as rent of the house for that period had been either paid or realized in execution of a decree for recovery of rent. It further appears that from Sawan Badi 7, Svt. 1991 Mst. Suraj Kanwar entered into possession of the house on a fresh rent note for Rs. 15/- per month. It is the period between these two dates, which is in dispute, and the appellant claims that during this period the mortgagor was in possession and the rent had not been paid, and therefore he was entitled to a sum of Rs. 660/- on that account. The lower appellate court says that it is not known who remained in possession of the house during this period. It is no one's case that the house was let to a third person during this period. It is clear that the mortgagors were in possession before Asoj Badi 12, Svt. 1987, and that Mst. Suraj Kanwar came in possession from Sawan Badi 7, Svt. 1991 under a first rent note. It seems that, in between, Mst. Suraj Kanwar must have remained in possession, because there is no evidence to show that any third person or the mortgagee came into possession after dispossessing Mst. Suarj Kanwar. As to the position of Mst. Suraj Kanwar during this period, it seems to us that she must be held to be representing the mortgagor. Nanuram, according to his own statement, seems to have been born at the end of 1914 or the beginning of 1915. He would, therefore, be minor up to the end of 1932 or the beginning of 1933. The possession of Mst. Suraj Kanwar, therefore, which had its origin from the time of her father-in-law Pragdas and which continued after his death must be held, under the circumstances, to be on behalf of her minor son, and it was only, for the first time, in Sawan Badi 7, Svt. 1991 that she took the house on rent, along with two other persons, in her own name. There is nothing to prove that any payment had been made to the mortgagees for this period. Under these circumstances, we are of opinion that the appellant is entitled to Rs. 660/- as claimed by him for this period. Then we come to the cross-objection. The plaintiff respondent has objected to the sum of Rs. 94/3/- which has been further allowed by the first appellate court as unrealized interest for the period of three years ending with the date on which the suit was filed. The finding of the first appellate court is that during this period the house was in possession of the mortgagees and was let to tenants on a total rental of Rs. 14/4/- per month. The interest to Which the mortgagees are entitled is Rs. 15/- per month. There was thus a deficiency of annas twelve per month only, and the lower court should therefore have decreed Rs. 27/- only on this account. The lower court however, decreed Rs. 94/3/- on the ground that only Rs. 445/13/- were collected out of a sum of Rs. 540/- which was due. However, when it is proved that the house was let at the rate of Rs. 14/4/- and the defendant appellant has not kept any account to show that he has not realized the entire amount of the rent, we must presume he had realized the entire amount. The cross-objection, therefore, roust be allowed to this extent that the amount decreed for this period of three years should be reduced from Rs. 94/3/- to Rs. 27/ -. We, therefore, partly allow the appeal and grant the plaintiff respondent a decree for redemption on payment of Rs. 2,187/- to the defendant appellant. The plaintiff will get his cost of the trial court from the contesting defendant appellant Bhajandas, and half his costs in the lower appellate court and in this Court. These costs will be calculated and deducted from the amount of Rs. 2,187/- which we have found due, and the balance would be payable in order to redeem the mortgage. We allow three months' time to the plaintiff respondent to deposit in the trial court the further amount due, if any, after the office has drawn up the usual decree under O. 34, r. 7. . ;