WANCHOO, C.J.— This is the second part of the judgment in this appeal, the first part of which was delivered by us on the 18th November, 1952. ((See Bhajandas vs. Nanuram (1953 RLW. 92)) The facts have all been given in that judgment and it is, therefore, unnecessary to repeat points which have been urged before us and give our decision on them.

2. The first point, that is urged, is that one Sitaram, who was adopted by Budhrajs widow Mst. Shanti was a necessary party to the suit, and as he had not been made a party and this was a suit based on mortgage, it should be dismissed. We find, however, that Sitaram was adopted pendente lite by Mst. Shanti. He applied for being made a party on the ground of adoption, That application was opposed by the plaintiff and was dismissed. Bhajandas, appellant, neither supported nor opposed that application. Bhajandas case therefore, never was either in the trial court or in the first appellate court, that Sitarani was a necessary party, and that the suit should be dismissed because Sitaram was not made a party by the trial court. The question then arises whether we should permit the appellant to raise this point relating to Sitaram, for the first time, in second appeal. We are of opinion that we should not permit this, because the questions whether Sitaram is a necessary party in this suit or not depends upon the decision of mixed questions of fact and law which have not yet been decided, namely whether Sitaram was in fact adopted by Mst. Shanti, and whether that adoption was valid. In this view of the matter we refuse to allow this point to be raised, and hold that the suit cannot be dismissed on this point.

3. The next point, that is urged on behalf of the appellant, is that he was bona fide purchaser for value without notice of Nanurams adoption. This plea also was not taken in the trial court or in the first appellate court, nor was the foundation for taking such a plea laid in the written statement filed by Bhajandas. The facts necessary to be proved to bring the case within the four corners of sec. 41 of the Transfer of Property Act were not alleged by Bhajandas in the written statement, nor was this plea raised in the first appellate court. Under these circumstances, we are of opinion that this plea is also not available to the appellant in second appeal.

4. The next point, that is urged, is that in view of what we have said in our judgment, dated 18th November, 1952 (Bhajandas vs. Nanuram (1953 RLW.92)) the suit may be remanded for giving an opportunity to the appellant to prove that there was no giving and taking in adoption. In this connection, we may refer to a part of our previous judgment which runs as follows:—

"In our opinion, in Marwar, where the deed itself mentions that the boy had been given and received in adoption and nothing is shown whereby it may be inferred that the physical act could not take place as mentioned in the deed, a presumption does arise that the recitals in the deed have been truly made ; since when a person goes to the length of sending for a scribe and executing the document and getting it registered, there is nothing to prevent him from performing the actual physical act of giving and taking. But if any party to the litigation can prove circumstances which would show that the physical act of giving and taking could not have been performed as recited in the deed of adoption, then it would be for the party setting up the adoption to prove by positive evidence that the physical act of giving and taking had taken place. In other words, it would be for the party challenging the adoption evidenced by a registered deed to plead specifically that the physical act of giving and taking had not been performed and also to indicate the particular circumstances which would negative the presumption as to recitals being correct and thereafter to lead evidence which would show that the physical act could not have taken place as mentioned in the deed, and then the party rely

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