The rule of factum valet applies to adoptions made in disregard of the preferences prescribed in the riwaj-i-am. The adoption of a stranger is not invalid merely because he does not belong to the same got as that of the adopter.

1. In order to appreciate the dispute between the parties a reference to the following pedigreetable would be useful. There seems to be a mistake in the pedigree-table set out in the judgment of the trial Court. It is admitted before me by the counsel for the parties that the correct pedigree-table would be as follows:

KANWAR

____________|_____________

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Shibu Hira

__________|__________

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Jaswant Data Ram

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Sunder Singh=Mst. Dakhan (Widow)

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Girja Singh (brother of Mst. Dakhan).

On 28th September 1948 Data Ram adopted Girja Singh, who admittedly was not a kinsman of Data Ram. On 28th September 1950 Mst. Dakhan and Data Ram gifted the land in dispute to Girja Singh. The plaintiffs claiming to be the collaterals of Data Ram and Sunder Singh filed this suit on 4th October 1950 for a declaration that the adoption dated 28th September 1948 was invalid according to custom and that the same be set aside. On 11th December 1950 the plaintiffs filed another suit for a declaration that the gift by Data Ram and Mst. Dakhan in favour of Girja Singh was ineffective and not binding on their reversionary rights. Both the suits were consolidated and were disposed of together.

2 As regards adoption, the trial Court found that it had been proved to have taken place but that the adoption was invalid. As the property was not found to be ancestral, it was held that the gift was nothing but an acceleration of succession and that both the suits were barred by time. Consequently the suits were dismissed. The learned Additional District Judge in appeal held that part of the property was ancestral and part of it was non-ancestral.

In the suit relating to adoption he gave a finding that the suit was not barred by time. As regards the adoption or a stranger it was held that according to the riwaj-i-am of Jagadhri Tehsil compiled in the settlement of 1919-20, an adopted son should be amongst the relatives and even amongst relatives the brothers son, grandson and great grandson were to be given preference, and if no collateral was living then any one from the same got could be adopted. The learned Judge came to the conclusion that Girja Singh being a stranger could not have been validly adopted in the presence of nearer relations. He, therefore, granted a declaration to the effect that the adoption of Girja Singh by Data Ram was invalid.

As regards gift, a decree was granted with regard to the khasra numbers which had been found to be ancestral and the suit of the plaintiffs was dismissed with regard to the land which had been found to be non-ancestral. The plaintiffs as well as the defendants have come up in second appeal to this Court, and both the appeals (R. S. As. Nos. 679 and 591 of 1953} will be disposed of by this judgment.

3. The first question that has been raised on behalf of the defendant-appellants in their appeal (R. S. A. No. 679 of 1953) is that the adoption was perfectly valid and the mere fact that Girja Singh was not a kinsman of Data Ram could not make the adoption invalid. The decision of the learned Addl. District Judge is not very clear on the question as to whether the factum of adoption had been proved. It seems, however, that the finding of the trial Court that the adoption had in fact taken place was not questioned, but the validity of adoption was attacked. The question of consent of the collaterals having been obtained was also considered by Mm and he came to the conclusion that consent had not been proved.

Before me the factum of adoption has not been disputed on behalf of the plaintiffs. The only question, therefore, that has to be decided is the validity of such a