Adoption among Sudras is a purely secular transaction, and no ceremonies are necessary in addition to the giving and taking of the boy in adoption. Adoption of a daughter's son is valid by custom, though not according to the general principle of Hindu Law.

Judgement

JUDGMENT :- The two plaintiffs who are son and mother respectively are in appeal against the order of the Subordinate Judge, Nayagarh dt. 28-8-1971 dismissing their suit for partition and giving possession of their 1/4th share in the ancestral properties as per schedule Ka in the plaint, with certain incidental reliefs.

2. Admittedly, Sahadeb Naik, plaintiff No. 1, is the son of Raghunath, Naik who is the natural son of Lingaraj Balabantrai, defendant No. 1. Plaintiff No. 2 is the mother of plaintiff No. 1 and widow of Raghunath. Defendant No. 2 is an agnatic brother of defendant No. 1. They come from the common ancestor, one Arta. Schedule Ka properties are the ancestral properties of the two branches, viz. defendant No. 1 and defendant No. 2. During the pendency of the appeal defendant No. 2 has died and his sons have been brought on record as legal representatives. Defendant No. 1 also died during the pendency of the appeal and a petition has been filed bringing to the notice of the Court about the same.

3. Both the plaintiffs claimed initially 1/4th share in the ancestral properties in which defendant No. 2 had eight annas share. Evidently out of the eight annas share of defendant No. 1 both the plaintiffs claimed a half share, i. e. 1/4th each, of the total ancestral properties. On 4-3-1970 defendant No. 1 had alienated under Ext. B Ac. 1.86 decimals of land in favour of defendant No. 2 under a registered deed. The plaintiffs in the suit claimed for a declaration that this was a nominal transaction which was not binding on them.

4. The case of defendants 1 and 2 is that the plaintiffs belonged to the branch of defendant No. 1. yet Raghunath, the husband of plaintiff No. 2 and father of plaintiff No. 1 having been adopted away to one Ananta, the father-in-law of defendant No. 1, they have lost their share in the natural family. Hence they claimed a dismissal of the suit.

5. The learned lower court framed five issues. On the plaintiff s side there are six witnesses out of whom P. W. 5 is plaintiff No. 2. and on the defendant s side there are five witnesses of whom defendant No. 2 is D. W. 4. On an assessment of the oral and documentary evidence the learned lower court held that the family to which the parties belong is Sudra; that adoption of a daughter s son in such a family is permissible; that Raghunath, father of plaintiff No. 1, had been adopted to his maternal grandfather while he was aged about two and therefore the plaintiffs are not entitled to any share in the natural family. Also he held that Ext. B executed by defendant No. 1 in favour of defendant No. 2 is a valid transaction with passing of consideration and hence not a nominal deed.

6. Mr. Kar, the learned counsel for the plaintiff-appellants, contended that there is no evidence worth the name to justify the finding of the learned Lower Court that Raghunath had been given in adoption to Ananta, his maternal grandfather; that in the absence of any such proof the admitted position being that the plaintiffs belong to the family of the defendants, they have a legitimate share in the ancestral properties which on no account can be denied to them. In view of the contentions of the parties, the crucial point for consideration is if the plaintiffs have continued to be in the family of the defendants, i. e. their natural family, or Raghunath had been given in adoption to another family and therefore they have lost their interest in the properties of the family to which they belonged originally. From this it can be safely held that the hub of the question is whether Raghunath had been given in adoption to Ananta, and the entire controversy revolves round that point. On the defendant s side evidence had been led to the factum of adoption by D. Ws. 1, 2 and 4. Out of them, as already indicated. D. W. 4 is none but the natural grandfather of plaintiff No. 1 According to the defence version, the adoption was while Raghunath was aged about two and it was towards the ye