Bapna, J. - (1.) THIS is a second appeal by the plaintiffs in a declaratory suit.
(2.) RAM Kanwar, who was defendant in the suit and has since died, adopted RAM Swaroop respondent on 21st May, 1945, and the plaintiffs instituted the present suit on the 24th of August, 1945, for declaring the adoption to be invalid on the ground that the adoption had been made contrary to the Wajib-u!-Arz of the village, and further that RAM Swaroop was married at the time of adoption and could not have been legally adopted. The defendants contested the suit, and it was held by the trial court that the adoption of a married person was permitted by custom, and the conditions in the Wajib-ul-Arz were only directory and not mandatory. The suit was accordingly dismissed. The same judgment was upheld on appeal. The Wajib-ul-Arz, Ex. P. B. , produced in the case in respect of the adoption is as follows - "every owner has power to adopt in case of there being no male issue. He can adopt any person from his family within four decrees, but if there is no near relation or the near relations refuse to give a son in adoption, any person from the same gotra can be adopted, but no person who is not of the same gotra can be adopted. The rule is the same from men and women who want to adopt. " It is clear from a perusal of the above that a person of the same gotra, though not in four degrees, has the capacity to be adopted. The Wajib-ul-Arz only puts a restriction on choice. Thus it is clear that the power to adopt is provided in the Wajib-ul-Arz, and the person who is not related within four degrees has also the capacity to be adopted. The direction for preference to be given to a person within four degrees cannot but be considered to be only directory and not mandatory. The two courts have rightly held that the doctrine of factum valet comes into play, and the adoption of Ram Swaroop having been 'made cannot be held to be invalid. Learned counsel for the appellant did not challenge the validity on the second ground, viz, that the adopted son had been married before the date of adoption. This appeal has no force, and is accordingly dismissed. In view of the particular circumstances of this case, the parties will bear their own costs in all the courts. .;