Judgment

UNTWALIA, J.: - In this appeal filed by certificate of the Rajasthan High Court we are concerned with the question of the legality and validity of the adoption of the appellant by the husband of the respondent. Amichand, respondent s husband, adapted the appellant with the consent of the respondent an the 18th November, 1959 and executed a registered deed evidencing the fact of adoption. The appellant at that time was 21 years of age. Both his natural father and mother were dead. He had a step-mother Bhuri Bai with whom the appellant was residing at the time of the impugned adoption. The appellant was given in adoption by his step-mother. Subsequently the respondent s husband and the respondent filed a suit in the year 1963 against the appellant impeaching his adoption on various grounds and for a declaration that the adoption was illegal and invalid. The appellant contested the suit and, inter alia, pleaded a custom applicable to the parties according, to which a person being of the age of 15 years or more could be taken in adoption. The custom was pleaded in view of the provision of the law contained in clause (iv) of Section 10 of the Hindu Adoptions and Maintenance Act, 1956 - hereinafter referred to as the Act. The appellant also stated in his written statement that under the Act the step-mother was competent to give him in adoption.

2. Several issues were framed including an issue regarding the custom as pleaded. Issue No. 1-A by agreement of the parties without the adducing of any evidence was tried as a preliminary issue by the trial Court. The said issue runs as follows :

"whether the adoption of Dhanraj is invalid on the ground that he has been given in adoption by his step-mother Mst. Bhuri Bai."

The trial Court decided the issue in favour of the plaintiffs and against the defendant. The latter filed a first appeal in the High Court. During the pendency of the appeal, plaintiff No. 1 died. The only respondent left was his widow. The High Court has held that the step-mother was not competent to give the appellant in adoption and maintained the dismissal of the suit on that preliminary issue. Hence this appeal.

3. The only point, therefore, which falls for determination in this appeal is whether the step-mother was competent to give the appellant in adoption. If not, whether the adoption is void ?

4. In Mayne on Hindu Law and Usage, eleventh addition is found a passage at page 226 to say -

"No other relation but the father or mother can give away a boy. For instance, step-mother cannot give away her step-son, a brother cannot give away his brother. Nor can the paternal grandfather or any other person. Nor is a woman competent to give in adoption her illegitimate son born of adulterous intercourse. It is well settled that the parents cannot delegate their authority to another person for instance, a son, so as to enable him, after their death, to give away his brother in adoption, for the act when done must have parental sanction. And, therefore, even an adult orphan cannot be adopted. because he can neither give himself away nor be given by anyone with authority to do so."

In Papamma v. V. Appa Row, (1893) ILR 16 Mad 384, Muttusami Ayyar and Best, JJ. have held that under the Hindu Law the step-mother could not give her step-son in adoption. An identical view has been expressed in the case of Haribhau v. Ajabrao Ramji, AIR 1947 Nag 143.

5. The question for consideration is whether the law that a step-mother could not give a step-son in adoption is changed after coming into force of the Act.

6. Section 4 (1) of the Act provides :

"Save as otherwise expressly provided in this Act. -

(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act".

7. Section 5 (1) says :

"No adoption shall be made after the commencement of this Act by or to a Hindu e