Bapna, J.—This is a second appeal in a suit for redemption.

2. One Prayagdas and his son Budhraj mortgaged a house with Hukamdas as a security for the loan of Rs. 1,500/- on Baisdkh Vadi 12, Svt. 1984 (17th April 1928). Prayagdas delivered possession of the property to the mortgagee and executed a lease of the same in favour of the latter at a rent of Rs. 15/- per mensem. Prayagdas had another son Deo Kishen who had died in his lifetime leaving a widow Shrimati Suraj Kanwar. Suraj Kanwar adopted Nanuram on 20th March 1929. Budhraj died leaving a widow Mst. Shanti. Hukamdas sued Prayagdas for arrears of rent and a decree was passed on the 15th of December 1931 against Mst. Suraj and Mst. Shanti as legal representatives of Prayagdas and in execution of that decree the house was put up for sale. Mst. Suraj Kanwar applied to the court for permission to raise money on security of the house and on such permission being granted Suraj Kanwar mortgaged the house for Rs. 600/- to Chhotmal on the 5th of June 1934. In the meantime, Hukamdas died and his son Jethmal assigned his mortgagee rights in the property to Chhotmal on 16th April 1944. Chhotmal sub-mortgaged his rights under the two mortgages to Samarathmal on the 14th of August 1944.

3. On 21st of November 1944, Nanuram, the adopted son of Deo Kishan, brought a suit for redemption of the first mortgage which had been made in favour of Hukamdas and assigned to Chhotmal. During the pendency of the suit, Chhotmal sub-mortgaged the property a second time with Bhajandas and paid off Samrathmal on the 27th of May 1945. Bhajandas also took a sale-deed of the property from Mst. Suraj Kanwar for Rs. 6,000/- and thereafter made an application for being made a party to the suit. The application was allowed whereafter Bhajandas filed his written-statement and took several pleas by way of defence to the suit one of which was that Nanurams adoption by Mst. Sura] Kanwar was not valid as there had been no ceremonies of giving and taking. The trial court decreed the suit for redemption on payment of Rs. 1,500/-. On appeal the decree was modified by increasing the amount to Rs. 1,594/3/-.

4. The defendant has filed this second appeal and the first point raised is that the lower courts have erred in holding the adoption of the plaintiff to Deo Kishan as proved merely on proof of the deed of adoption executed by Mst. Suraj Kanwar. It was contended that in the absence of proof of the ceremony of giving and taking having been performed, the issue as to adoption should have been found against the plaintiff. It was urged by learned counsel for the respondent that a deed of adoption had been executed by Mst. Suraj Kanwar and this was the only requisite condition for an adoption under the law in force in Marwar. The validity of the deed was also challenged by the appellant on other grounds with which we are not concerned at present.

5. The question whether the ceremonies of giving and taking were necessary for the validity of an adoption in Marwar was argued as a preliminary question in this case and we propose to give a finding on that question at this stage before proceeding to hear arguments on various other questions which are involved in this appeal. It may be pointed out that in another case which came before us, the same question had been argued and the judgment in that case had been reserved as before conclusion of the arguments this appeal had been filed and learned counsel appearing for the appellant stated that he would place much more material before this court than had been done in the earlier case.

6. Under Hindu Law, except as modified by custom, no adoption is valid unless—

(1) the person giving in adoption is competent to give in adoption;

(2) the person adopting is competent to take in adoption;

(3) the person to be adopted is capable of being given and taken in adoption and;

(4) the formalities essential to the validity of an adoption are carried out

The appellants contention is in respect of the l

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