An adopted son, as a reversioner, is entitled to challenge an alienation made by the adoptive mother prior to his adoption if it is established that the alienation was not for legal necessity.

JUDGMENT - 1. This is an appeal against the appellate Judgment dated 31st December, 1961 of the learned District Judge, Satara. The appeal was originally filed by the three Defendants in the suit from which the present appeal arises. Defendant No. 1 died during the pendency of this appeal and his heirs and legal representatives were joined as respondents 2 to 7. The appeal was dismissed against the respondent No. 6 for want of prosecution. The respondents 2 to 5 and 7 have not appeared. Respondent No. 1 is the original plaintiff.

2. The dispute is about three properties. They formed a part of the estate of one Shivaba who died in or around 1920. He was succeeded by his son Baba who died leaving him surviving his widow Goja. Goja alienated three of the properties of which her late husband Baba was the full owner. One of the properties was sold on 2nd May, 1942 to Defendant No. 1, another on 4th January 1943 to defendant No. 2 and a third on 23rd March 1943 to Defendant No. 3. After these alienations she adopted the plaintiff as a son to her husband on 22nd April 1959. Thereafter she died.

3. On 19th September, 1960 the plaintiff as such adopted son filed in the court of the learned Civil Judge, Junior division, Karad, the suit from which the present appeal arises challenging the three alienations as being without legal necessity. The defendants denied the adoption and further contended that the plaintiff was in any case past of age of fifteen years on the date of his adoption and therefore by virtue of Section 10 of the Hindu Adoptions and Maintenance Act, 1956, the adoption was invalid. They further contended that as these properties had vested in them prior to the adoption by virtue of proviso (c) to Section 12, the plaintiff could not divest them. They further pleaded that there was legal necessity for the alienations by Goja.

4. The learned trial Judge held that there was a custom in the community of Goja to adopt a boy who was more than fifteen years of age at the date of adoption and therefore under Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, the adoption was valid. He held that fact of adoption proved. The learned trial Judge also held that the alienations by Goja were for legal necessity and were for consideration and were bona fide. He also held that notwithstanding the proviso (c) to Section 12, the plaintiff was entitled to sue. Having come to the conclusion that the alienations were for legal necessity, the learned trial Judge dismissed the suit. Against the said decision, the plaintiff appealed to the District Court at Satara.

5. The learned District Judge held that there was a custom in the community of Goja whereby a boy above 15 years of age could be validly adopted. He further held that proviso (c) to Section 12 did not stand in the way of the plaintiff. He, however, reversed the finding of fact as to the legal necessity and held that the legal necessity was not proved. In the result, he allowed the appeal and set aside the alienations subject to repayment of certain small amounts of consideration to the alienees. Against the said decision, the defendants, who are the alienees, have filed the present appeal.

6. The first point taken before me by Mr. Shrikhande on behalf of the appellants is that the legal necessity for the alienations should be held to have been proved. I am afraid that the finding of fact to the contrary of the District Court is binding upon me and in a second appeal it is not open to the appellants to challenge it. This contention must therefore be rejected.

7. The second contention taken on behalf of the appellants is that the custom or usage applicable to the parties which would permit persons who have completed the age of 15 years being taken in adoption has not been proved and, therefore, the adoption is void under Section 10 of the Hindu Adoptions and Maintenance Act. In the judgment of the learned District Judge reliance for proving the custom has been placed on two insta

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