The adoption of a sister's son is prohibited under Hindu Law and is not recognized as a valid adoption unless there is a specific custom permitting it.

The appellants in this Second Appeal are the widow and a minor daughters of one Lokanath Goswami, who died in the year, 1953. The first respondent Jayanta Kumar Goswami, is the son of one Ibeton Devi, (the deceased sister of Lokanath Goswami) and her husband Gourachandra Sarma (P.W. 4). Jayanta Kumar Goswami, brought the suit in 1958 as a minor against the appellants claiming that he was adopted by Lokanath Goswami when he was 3 months old, after the death of his mother Ibeton Devi at a time when Lokanath Goswami had no children of his own. The allegation in paragraph 2 of the plaint is that the adoption was done according to the rite and customs under Hindu Law with the agreement of the first appellant - Ketuki Devi and that after the said adoption Lokanath Goswami and Ketuki Devi, brought him up and all rituals for adoption, Upanayanam etc., were performed by Lokanath Goswami and he was known during the life-time of Lokanath Goswami as his son. It was further alleged that after the death of Lokanath Goswami, the first respondent performed the Sradha Ceremony. It was further alleged that sometime before his death, Lokanath Goswami made provision that the first respondent would as usual inherit the land of Lokanath Goswami and that the appellants would have the right to occupy the Ingkhol left by him. The first respondent filed the suit for declaration of his title to the lands as the adopted son and claimed khas possession of the land from the appellants and from the tenant, who was defendant No. 5.

2. The appellants disputed the case of adoption. They stated that when the first respondents mother died, he was brought from his fathers house by Lokanath Goswami s mother and sister and was brought up in a separate house adjacent to Lokanath Goswamis house and further that Lokanath Goswami had an intention to adopt the first respondent and perform the Upanayanam ceremony, but that the lather of the first respondent and the elder brother of Lokanath Goswami were not agreeable to the adoption, on the ground that one could not adopt the son of his sister as his son according to the Hindu Shastra and so the question of adoption was dropped and Upanayanam ceremony was performed in his own Gotra. They also denied that the first respondent performed the Sradha ceremony of Lokanath Goswami or that the first respondent was looked upon as the son of Lokanath Goswami. They also denied the alleged arrangement by late Lokanath Goswami that the first respondent should indent his properties.

3. The case went for trial on these averments toy the parties. The learned Subordinate Judge (II) framed an issue as issue No. 2.

"Issue No. 2 - Was the plaintiff adopted by Lokanath Goswami ? If so, was there any valid adoption under the local custom ? Is there any custom of adoption of sisters son ?"

One is unable to understand how such an issue was raised at all, in this case, as there was no pleading by the first respondent that there was any local custom or family custom of adoption of a sisters son. It is well known that under Hindu Law there can never be an adoption of a boy whose mother the adopting father could not have legally married and hence the adoption of a sisters son was against Hindu Law. Of course, such a prohibition under Hindu Law can be got over by custom in particular communities and the adoption of a sisters son can be valid by proof of such custom whether it be a local custom or a family custom. But if there was such a local custom or family custom, which would over-ride the Hindu Law, such a local custom or family custom has got to be specifically pleaded in the plaint. On the other hand, what we find in this case is that, no such custom was set up in the plaint and it was stated that the plaintiff was adopted according to the rite and customs under Hindu Law. No special local custom or family custom permitting the adoption of a sisters son was thus, pleaded. It was the appellants, who in their written statement stated tha