Wanchoo, C.J.—This is a first appeal by Nozi and her sons Lichmi-chand and Ganeshmal against the dismissal of their suit by the Civil and Additional Sessions Judge, Merta,

2. The case of the plaintiffs appellants was that one Shivnarain deceased was the maternal-uncle of Mst. Nozi. She used to look after him in his old age, and consequently he was pleased with her. To show that pleasure, he gifted a house belonging to him to Mst. Nozi and her sons who are the three plaintiffs in the suit. The gift deed was written on the 27th of April, 1944 and registered on the 29th of April, 1944, Shivnarain continued to live in the house in dispute with the consent of the plaintiffs till he died in December, 1944. Defendant Mohanlal had come to Jaswantgarh, where Shivnarain used to live and where the house is situated, some months before Shivnarains death when Shivnarain was ill, and had stayed with Shivnarain for sometime. Thereafter, he had gone away leaving his wife with Shivnarain. The defendant came again to Jaswantgarh after the death of Shivnarain, and began to live in the house. The plaintiffs asked him to vacate the house. He agreed to do so after sometime, and also agreed to pay Rs. 5/- as rent. Later, however, the defendant refused to vacate the house. Consequently notice was given to the defendant on the 31st of May, 1946. As the defendant did not vacate the house even thereafter, this suit was filed in March, 1949. The plaintiffs prayed for possession of the house which was valued at Rs. 5,000/-, and also for a sum of Rs. 190/-for use and occupation of the house at the rate of Rs. 5/- per month.

3. The suit was resisted by the defendant. His case was that he was the adopted son of Shivnarain, and that there was no gift deed by Shivnarain in favour of the plaintiffs. He also said that he and his wife were looking after Shivnarain, and not Mst. Nozi. He denied that he had ever agreed to pay Rs. 5/- p. m, as rent to the plaintiffs for the house, and said that he was in possession of it in his own right as the adopted son of Shivnarain. He further alleged that the gift deed was invalid as Shivnarain never handed over possession of the house to the plaintiffs ; nor did he hand over the title deeds relating to the house to them. He also pleaded that there was a joint Hindu family consisting of Shivnarains brother Jagannaths widow, Shivnarain himself, his other brother Asaram, and the defendant who was the adopted son of Shivnarain, and as such Shivnarain could not make a gift of this house which was the property of the joint family.

4. On these pleadings, the following issues were framed by the court below—

(1) Did the deceased Shivnarain make a gift of the house in question in favour of the plaintiffs ?

(2) Is the house in question a part of the coparcenary property and so the gift is invalid?

(3) Did the deceased Shivnarain make the gift of this house for legal necessity?

(4) Is Mohanlal the adopted son of the deceased Shivnarain and is his adoption valid even without a registered document on the ground that it was executed in Hyderabad ?

(5) Relief.

(6) Was the possession not delivered at the time of the gift and so the gift is invalid ?

(7) Whether the defendant took the house in question from the plaintiffs on rent of Rs. 5/p.m. and so the plaintiffs are entitled to recover Rs. 190/- on account of rent from him ?

(8) Is the value of the house in question Rs. 15,000 so the court fee is insufficient ? if so how much ?

The trial court held that Shivnarain had made a gift of the house, and that the house was the personal property of Shivnarain, and not the property of any joint family. The issue as to legal necessity was meaningless, for there could be no question of any legal necessity in connection with gift, and therefore the issue was not pressed. The court also held that the adoption of Mohanlal was not valid for want of a registered instrument. It further held that the house was not taken on rent by Mohanlal on Rs. 5/- per month as allege

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