- (1.) THIS second appeal arises out of a suit filed by Bansi and others against Mst. Ami Kaur and others for a declaration that the adoption of Dalip was void and was not binding on the plaintiffs. The Suit was brought in the court of the Munsif, Bahror, on the 24th of April, 1948 The plaintiffs, Bansi and others, and the defendants, Jaswant, Balbir, Nandlal and Sriram are collaterals of one Ratiram, who died, leaving behind him a son named Nauchand and his widow Ami Kaur. Nauchand also died after the death of his father leaving behind him his widow Mst. Har Bal alias Sarwan and his mother Ami Kaur, Ami Kaur adopted Dalip on the 28th of February, 1948, which has given rise to the present suit.
(2.) THE case of the plaintiffs is that adoption of Dalip or Ami Kaur was invalid and not binding on them because : (1) Ami Kaur had no right to adopt while Mst. Har Bai alias Sarwan, the widow of her son, was still alive, (2) no ceremony of adoption had been performed in accordance with the custody of the family, and (3) the adoption of Dalip was in conflict with the custom recorded in the wajib-ul-arz, according to which a boy could not be adopted in preference to one nearer in degree. Defendants, Jaswant, Balbir, Nandlal, and Shri Ram were made pro forma defendants, because they did not join in the suit as plaintiffs. They did not contest the suit and the proceedings were taken ex parte against them. The suit was contested by Ami Kaur, Sarwan and Dalip only. Their reply was that the necessary ceremonies of adoption had been duly performed and that Sarwan having remarried had severed her connections with the family of Ratiram. Thus Ami Kaur had a right to adopt Dalip who was from the same family. The locus standi of Bansi and Mst. Chand Kaur was also challenged on the ground that they were not the collaterals of Ratiram. Both courts below decreed the suit, firstly on the ground that Ami Kaur had no right to adopt a son while Sarwan alias Har Bai, widow of Nauchand continued in the family of Ratiram, and secondly because the adoption of Dalip was held to be contrary to the custom recorded in the wajib-ul-arz. It was held by both the courts below that Sarwan did not remarry Dalip before Dalip's adoption. The appellate court also held that if Dalip's marriage with Sarwan previous to adoption is assumed, the adoption would be invalid also on the ground that a married boy cannot be taken in adoption. Bansi and Chand Kaur, it was held no right to sue and his finding as regards the right of Bansi and Chand Kaur is not challenged in this appeal nor was it contested in the lower appellate court. It is urged by the learned counsel of the appellants that the lower court was wrong in giving a finding on the supposed assumption of the marriage of Dalip with Sarwan prior to Dalip's adoption. It is also urged that the interpretation of the entry of the wajib-ul-arz made by both the lower courts is not correct. It may be noted that both the courts below have arrived at a concurrent finding of fact that Dalip did not marry Sarwan before his adoption and this finding which has been based on a discussion of the oral evidence has been held to be supported by the contents of the adoption deed which mentions that Dalip would also inherit the property of Sarwan which could not have been written had he married at that time and the adoption deed further describes that the adoption had been performed with the consent of Sarwan. This finding of fact is not seriously challenged before this Court in this second appeal and the case can be decided on the basis of the aforesaid finding of fact. In view of such a finding of fact it is not necessary to assume the reverse of it and to decide the case on that basis. The lower appellate court has proceeded to express its opinion on such an assumption but it may be observed that the observations of the lower appellate court are obiter. Coming to the next point, it may be mentioned that the relevant portion of the wajib-ul-arz is as follows, which is given in *** The spirit of the entry of wajib-ul-arz which has been reproduced above is not as has been interpreted by both the lower courts. It does not mean that a nearer in degree will exclude the more remote even in the matter of adoption. What is meant is that selection of a boy for adoption should be made from among those who are near relations of the deceased. What it meant by near relations is a matter to be determined in the light of the circumstances of each case. Dalip in the present case is related to the family of Ratiram, the deceased, within seven degrees and it cannot be said that he is not a near relation of the deceased in the meaning of the term "near relation" used in the entry of the wajib-ul-arz. There may be other relations of the deceased who may be nearer to him but his adoption cannot be held to be invalid on the ground that there are other relations more nearly placed to the deceased then the one who has been adopted. Near relation has been used in con-tra-distinction with the term "relations" not connected with the family. For instance, it has been expressly provided that relations of the widow shall not be adopted or that, unless consent is obtained of the collaterals, daughter's son or sister's son would not be eligible for adoption. The meaning which has been but by the courts below on the language of the wajib-ul-arz seems to be far fetched and does not appear to be far warranted from the language used. Even after the appellants succeed on the two points which have been pressed in this appeal, there remains a major hurdle for them which it has been conceded cannot be got over. The finding of both the courts below is that Dalip was adopted before Sarwan served her connection with the family of Nauchand by contracting a marriage with him and as such Ami Kaur at that time had no right to adopt. In view of the decisions in the case of Vijaysinghji vs. Shivsangji (1) and Bapuji Patel vs. Gangaram Madhaorao Deshpande and other (2) Mr. Ram Avtar for the appellants concedes that the adoption in the present case by Ami Kaur was not in accordance with law. With these observations, the appeal is dismissed with costs. .;