B.P.JHA, J.

1. The plaintiffs preferred an appeal before this Court against the judgment of the trial Judge.

2. The point of law for consideration in this appeal is :

Whether a Hindu widow has been empowered after her remarriage to give in adoption a son by her first husband?

This decision will not affect the cases under the Hindu Adoptions and Maintenance Act, 1956. In the present case, the alleged adoption took place sometime in the year 1949.

3. The present appeal arises out of a partition suit. Plaintiff No. 1 is the widow of Harihar Mahto, and plaintiff No. 2 is the daughter of Harihar Mahto. Admittedly, Harihar Mahto died in the year 1957 after the Hindu Succession Act, 1956 came into force. Plaintiff No. 1 Ramasakhi Kuer was the first wife of Harihar Mahto. He also married Most. Chhathia as his second wife. After the marriage, Most. Chhathia gave her son Surya Mahto, who was the son of her previous husband, in adoption. It is the consistent evidence of D. Ws. 1, 2, 4, 6 and 8 that after Most. Chhathia was remarried with Harihar Mahto, she gave her son, who was the son by her previous husband, in adoption to Harihar Mahto. The question for consideration is: Whether such an adoption is a valid adoption or not?

4. The P.Ws. have denied the factum of adoption. It is pleaded in the written statement of Most. Chhathia that the adoption was in accordance with the Shastras as well as on the basis of the custom. It is an admitted position that there is no evidence adduced on behalf of the defendants to show that there was any custom amongst the Sudras that a remarried widow can give in adoption her son by her previous husband.

5. It has been held by certain decisions that a mother can give her son in adoption. After remarriage, the widow ceases to be the mother of the son and, as such, she cannot give in adoption a child who was by her first husband according to the Hindu law as it was prevalent before the Hindu Adoptions and Maintenance Act, 1956 came into force. A father had the authority to adopt a son and he could give his son in adoption to another person. When a widow remarries, she loses her status as a mother and, as such, after remarriage she cannot give her son in adoption who was by her first husband. According to Sec.2 of the Hindu Widows Re-marriage Act (Act XV of 1856), after remarriage, a widow dies a civil death so far as the rights and interests in the family of the previous husband are concerned. By giving in adoption such a son from her previous husband, she deprives her previous husband of the spiritual benefits to which her previous husband was entitled from a son. In this circumstance, I hold that Most. Chhathia loses her right of a mother of Surya Mahto (who was born by her previous husband). No doubt, as a mother she was entitled to give in adoption Surya Mahto according to some authorities; but as soon as she ceases to be the mother, Surya ceased to be her son. If Surya ceased to be her son, Chhathia had no authority in law to give Surya, who was a stranger to her., in adoption to Harihar. D.Ws. 1, 2, 4, 6 and 8 have stated that after remarriage Most. Chhathia had given in adoption her son by her first husband to Harihar. Even if the evidence of these D.Ws. be accepted, in law Most. Chhathia had no authority to give Surya in adoption on the grounds stated above.

6. The factum of adoption has been denied by the evidence of P. Ws. 1, 2, 3, 4, 5, 6 and 7.

7. It was contended by the learned counsel for the respondents that the defendants did not prove the factum of custom as no issue was framed to this effect. On a perusal of issue No. 4, it is clear that an issue was framed about the adoption. It is relevant to quote issue No. 4 which runs as follows :-

"Is Suraj Singh the adopted son of Harihar Singh?"

8. In paragraph No. 4 of the written statement of Most. Chhathia (defendant No. 1) and Surya Mahto (defendant No. 8), it is specifically pleaded that the adoption was done in accordance with the Shas