M. Y. Eqbal, J.-This second appeal is directed against the judgment and decree dated 21.7.87 passed by 3rd Additional District Judge, Dumka in Title Appeal No. 4/83 affirming the judgment and decree passed by 2nd Additional Subordinate Judge, Dumka in Title Suit No. 34/78 whereby the suit filed by the plaintiffs-appellants was dismissed.

2. At the time of admission of the appeal the following substantial question of law was formulated:-

"Whether the courts below have erred in law in placing the onus on the plaintiff to prove that there was no custom of adoption by females among the Santhals?"

3. The facts of the case lie in a narrow compass:-

The plaintiffs-appellants filed the aforementioned suit for declaring that defendant no. 3, Rani Hansda, wife of Sundar Soren has no right to adoption and Balak Murmu is not the adopted son of Rani Hansda. The plaintiffs' case is that the plaintiff no. 1 is the agnate of Chandar Soren, husband of Rani Hansda. Other defendants are members of the same family being agnates and claiming inheritance in the property of Sundar Soren. Sundar Soren died leaving behind his widow Rani Hansda, who allegedly was maintained by the plaintiffs. During lifetime Chandar Soren alleged to have executed a Jimmanama on 5th March, 64 with respect to his entire properties and since then the plaintiffs-appellants are in possession of the property of Sundar Soren. It is alleged that taking advantage of complicity and oldness of Rani Hansda, the defendant no. 1 who is grandson of the common ancestors, got a deed of adoption executed on 17.5.77. The plaintiffs' case is that in Santhal community a widow is not entitled to adopt any child and if her husband died issueless the properties are inherited by other surviving agnates.

4. The defendants contested the suit by filing written statement on the ground that according to Santhal custom a widow is also competent to adopt a child. It is pleaded that formal ceremony like Bonga Tola and Nim Da Mari were duly performed. Subsequently a deed of adoption was also registered. The defendants' case is that after the death of Sundar Soren the plaintiffs started creating trouble, which resulted in initiation of criminal proceedings and after the plaintiffs failed in their attempt, the instant suit has been filed.

5. The trial court framed five issues including the issue with regard to Santhal custom of widow adopting a child. The trial Court recorded a finding that a widow can adopt a child and all ceremonies were performed while defendant no. 1 was adopted by the widow. The trial Court, after considering both oral and documentary evidence, recorded a finding that a Santhal widow is fully competent to adopt a child. The Court further recorded a finding that all customs and ceremonies were performed at the time of taking delivery of a child from the mother.

6. Aggrieved by the said judgment and decree passed by the trial court, the plaintiffs-appellants preferred appeal before the District Judge, Dumka being Title Appeal No. 4/83. The appellate court after re-appreciation of the entire evidence affirmed the finding of the trial court and held that the defendants by adducing positive evidence proved that a Santhal widow is competent to adopt a child in absence of her husband.

7. Mr. Rajiv Sharma, learned counsel appearing for the appellants, assailed the impugned judgment and decree mainly on the• ground that the courts below have wrongly shifted the onus upon the plaintiffs to prove by evidence that the widow had not adopted the child. Learned counsel submitted that a Santhal widow has no legal right under the custom to adopt a son.

8. Before deciding the substantial question of law, I would like to discuss the customary law of Santhal and the right of female under their customary law with regard to adoption, although the finding has been conclusively recorded by two courts. It is worth to mention here that the counsel for the appellants has confined his argument on the question o