S. P. BHARGAVA, J.

( 1 ) THIS appeal arises out of an application under Section 25 (1) and (2) of the Guardians and Wards Act (VIII of 1890) read with Section 6 of the Hindu Minority and Guardianship Act, 1956, made in the Court of the Second Additional District Judge, Jabalpur. The application of the applicants was rejected by the said Court. Being aggrieved by the said decision, this appeal has been preferred.

( 2 ) THE relevant facts of the case are that the applicants are husband and wife and belong to Bengali Brahmin community. The applicants were the parents of three children before 11-2-1956. Their 4th child was born on 11-2-1956 in some hospital at Jabalpur. This child was a girl and was named 'mana'. It is admitted that on the 9th day after her, birth, the child was handed over to the custody and care of the non-applicants (respondents) who also are the husband and wife. The respondents belong to the Bengali Kayastha community. This is also admitted that at the time of the handing over of the child, the relations between the parties were very cordial. The present dispute ranges round the custody of this child 'mana'.

( 3 ) THE case of the applicants was that at the time when Mana was born, her mother (applicant No. 2) was in a very weak state of health. She was not expected to feed the child properly. Under these circumstances the applicants were required to make suitable arrangement for getting the child properly brought up. The applicants say that ultimately they approached the respondents with the request that they may assume responsibility for bringing up the child till its mother (applicant No. 2) was in a fit state of health to assume her responsibility of nurturing the child. It is averred by the appellants (applicants) that the respondents (nonapplicants) gladly acceded to their request and brought up the child satisfactorily. About seven or eight months after however, when the applicants desired the child to be restored to them, the non-applicants on one ground or the other put off the handing over of child and ultimately, refused.

( 4 ) THE case of the non-applicants on the other hand was that a few days before the birth of the child, there was an agreement entered into between the parties to the effect that in case a female child was born to the applicant No. 2, the child would be given in adoption to the non-applicants who were issue-less. It was further stated that it was agreed upon that the ceremony of adoption would be performed about a year after. In pursuance to the agreement, the ceremonies of giving and taking in adoption took place on 6-1-1957. As a consequence of adoption, the applicants, it was alleged, were not entitled to the restoration of the custody of child, It was further alleged that the return of Mana to the applicants was not in her own interest considering her welfare and so it was urged that the application of the applicants deserved to be rejected.

( 5 ) A further point was urged in this Court to the effect that the application as laid in Court did not fall within the purview of section 25 of the Guardians and Wards Act.

( 6 ) THE lower Court had framed four issues covering the objections raised. Issue No. 1 pertained to tile factum of handing over of the child because applicant No. 2 was not in a proper state of health. Issue No. 2 was with regard to the factum of adoption. In my view, the facts covered under issue No. 1 fall properly within the purview of the rebuttal of issue No. 2 and, therefore, I propose to deal with the evidence led by the parties with regard to these two issues together.

( 7 ) THE most important question for consideration in this case is as to whether the girl Mana was given in adoption on 6-1-1957 as alleged by the non-applicants, It may be recalled that the Hindu Adoption and Maintenance Act, 1956 (Act No. 78 of 1956) came into force on 21st December 1956. It would, therefore, appear that the adoption which is alleged to have taken place, is said to have t

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