A widow with step-sons can validly adopt a son under the Hindu Adoptions and Maintenance Act, 1956.

G. K. MISRA, J.

( 1 ) LATE Rai Bahadur Bhuyan Bhaskar Mohapatra died on 22-6-1938. Plaintiff luximani was his first wife. Defendants are his sons and step-sons of the plaintiff. Plaintiff filed Original Suit No. 16 of 1959 on 21-3-1959 in the Court of the subordinate Judge, Balasore, for partition of properties left by her husband. She died on 3-10- 1961. The petitioner filed an application on 2-1-1962 for being substituted in her place on the allegation that he was adopted by her on 14-41958 and that on 16-7-1958 she executed a registered deed of adoption (Ex. 1)which was signed by her and his natural father. The learned Subordinate Judge dismissed this application on 28-7-1962. On 30-8-1962 the defendants filed an application for dismissing the suit as it had already abated. On the very day the learned Subordinate Judge passed an order to the effect :

"defendant files a petition praying tnat the plaintiff died on 3-10-61 and one Bishnu Mohan Naik filed a petition for substitution of his own minor son Radha Mohan Naik (which ?) has been rejected on 28-7-1962. So they pray that orders be passed for dismissing the suit. The suit has abated. "

The Civil Revision is directed against the Order dated 28-7-1962 and no proceedings have been taken against the order dated 30-8-1962.

( 2 ) MR. Mohapatra opposed the Civil Revision on the following grounds -

(i) Luximani was not entitled to adopt a son to herself when the stepsons are alive. (ii) Even if the decision of the trial court that the petitioner is not the legal representative of Luximani is erroneous in law and fact, the High court cannot interfere in revision as the trial Court had not acted illegally or with material irregularity in the exercise of its Jurisdiction. (iii) The Order dated 30-8-1962, which conclusively determined the rights of the parties with regard to all the matters in controversy in the suit, is a decree under Section 2 (2), C. P. C. As no appeal has been filed against the decree, it ha? become final and the interlocutory order dated 28-7-1962 cannot be set aside in revision. Each of the aforesaid contentions requires close examination.

( 3 ) IT is not disputed that Luximani had the capacity to take in adoption. She was of sound mind. Her husband was dead and she had the capacity to take a son under section 8 of the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956), hereinafter to be referred to as the Act. Under Section 11 (1), if the adoption is of a son, the adoptive mother by whom the adoption is made must not have a Hindu son, son's son, or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption. This condition is mandatory. Luximani had no son or son's son or son's son's son; but she had step-sons, the defendants. The question is whether these step-sons are the sons of Luximani by legitimate blood relationship. There was no blood relationship between Luximani and her step sons. The defendants cannot, therefore, be the sons of Luximani by legitimate blood relationship. Section 11 (i) therefore did not stand in the way of Luximani validly adopting the petitioner. There is no force in the first contention.

( 4 ) FOR a proper appreciation of the second contention, the reason for which, the learned Subordinate Judge rejected the petitioner's claim as the legal representative of Luximani may be noted in his own words -

" (i) Since the fact of adoption does not find a place in the plaint, the question is to be viewed with suspicion. (ii) The focus of enquiry In the partition suit will shift to the question of adoption if the petitioner is permitted to be substituted. He came to the ultimate conclusion -- (iii) It is patent that in spite of Ex. 1 the petitioner cannot prosecute the cause of action as originally framed during the lifetime of the deceased plaintiff in the connected partition suit. "

It is to be noted that the learned Subordinate Judge did not at all consider the question whether the peti