B.K. Mullick, J.

1. The plaintiff is a person who claims to be the adopted son of defendant No. 1; and defendants Nos. 2 and 3 are the natural sons of defendant No. 1. The parties belong to one of the twice-born castes, and the reliefs claimed by the plaintiff are:--

1. That it be declared that defendant No. 1 and his wife adopted this plaintiff after due performance of the rites enjoined under the Shastras and they treated him as their son.

2. That it be declared that since the date of adoption this plaintiff became a son of defendant No. 1 and is so even now, that he has been living jointly with the defendant No. 1 and that this plaintiff has no more any connection or concern either with Harbans Rai, his family, or even with the property belonging to Harbans Rai's family.

2. It is alleged by the plaintiff that defendants Nos. 1 and 3 are displeased with the plaintiff and wish to deprive him of the family estate.

3. The learned Judge framed the following issues:--

1. Is the Court-fee paid sufficient

2. Is the suit barred by section 10 of the Civil Procedure Code

3. Was the plaintiff adopted by defendant No. 1 Is the adoption valid

4. Do the plaintiff and defendants form members of a joint family

5. What relief, if any, is the plaintiff entitled to

4. The learned Subordinate Judge found all the issues in favour of the plaintiff and decreed the suit in full, giving the plaintiff all the declarations he sought.

5. In appeal the learned District Judge arrived at the same result and the defendants now prefer, this second appeal before us.

6. The first point taken is that the adoption was not valid because the putrishta jag ceremony was not performed. It is contended that this ceremony is essential to make an adoption valid in any of the twice-born castes.

7. It was held so far back as 1871, by Dwarka Nath Mitter, J., in the case of Luchmun Lal v. Mohun Lall 16 W.R. 179 that the performance of putrishta jag was essential in order to validate an adoption in dattaka form at least among the three superior castes. Apparently there is no other authority so directly in point, but we find that the above ruling was considered by Mookerjee and Beachcroft, JJ., in Katki v. Lakpati Pujari 27 Ind. Cas. 39 : 20 C.W.N. 19 : 20 C.L.J. 319 and it was there explained that the dictum, of Dwarka Nath Mitter, J., to the effect that putrishta jag was an essential ceremony was an error in the nature of a lapsus linguos and that what the learned Judge must have really meant to say was that the dattahoma ceremony, and not the putrishta jag ceremony, was essential to a valid adoption in the dattaka form among the three superior twice-born castes.

8. It is contended on behalf of the appellant that the learned Judges proceeded on mere speculation in finding this explanation and that so high an authority as Dwarka Nath Mitter, J., must be presumed to have known what the Hindu Law on the subject was.

9. On the other hand the opinion of the Bench which decided the case in Katki v. Lakpati Pujari 27 Ind. Cas. 39 : 20 C.W.N. 19 : 20 C.L.J. 319 is entitled to the greatest weight and, in my opinion, their interpretation of the tests is correct and supports the view that the putrishta jag ceremony is a matter of form and not essential to an adoption. Following this view Chaudhuri and Newbould, JJ., have recently held in Asita Mohan Ghose v. Nirode Mohan Ghose 35 Ind. Cas. 127 : 20 C.W.N. 901 that the puhishta jag ceremony is nut essential among sudras. The reply of the learned Vakil for the appellant is that it follows by implication that it is essential among the higher castes, but, in my opinion, this conclusion does not necessarily follow.

10. We are not required, however, for the purposes of the present case to decide the larger Question as to what is the position where the adopter and adoptee belong to different gotras.

11. It has been settled by the Privy Council* as also by the Calcutta High Court [see Katki v. Lakpati Pujari 27 Ind. Cas. 39 : 20 C.W.N. 19 : 20 C.L.J. 319] that even the dattahoma is not necessary among the higher castes if the adopter and adoptee are members of the same gotra, and I take it that the rule applies with greater force to the putrishta jog which is certainly a less important ceremony.

12. In the present case it has not been proved, the burden being on the defendants, that the plaintiff was not of the same gotra as defendant No. 1. In fact there are indications on the record which show that they are members of the same gotra and we are entitled to draw the inference that the plaintiff and the defendant No. 1 are members of the same gotta and that in their case at any rate the putrishta jag ceremony was not necessary to validate the adoption set up by the plaintiff.

13. This disposes of the first point put forward by the appellant.

14. The next point is a more difficult one. It is contended by the appellant that the suit is not maintainable as the relief claimed is a declaratory relief under section 42 of the Specific Relief Act. It is contended that the plaintiff was bound to ask for consequential relief either in the shape of confirmation of possession or joint possession or partition and that as he has not included in his plaint any relief of these kinds, the suit is not maintainable.

15. To-day we have not had the assistance of Sir Ali Imam who appeared on behalf of the respondent yesterday and consequently the appeal must to all intents and purposes be decided ex parte; but we have looked at the authorities relied upon on the respondent's side and we find that none of these authorities support the contention that the plaintiff is entitled to relief upon the plaint as it stands.

16. It is true that this is not a suit for declaration that the plaintiff is entitled to succeed to the joint family property on the death of his father. Sir Ali Imam's contention would probably have been that a prayer for declaration of the plaintiff's status is quite sufficient; that as the plaintiff has not been dispossessed he need not ask for any further relief, and that upon the death of his father he will succeed by survivorship. But in this case it is quite clear that there has been a denial of the plaintiff's right and although the plaintiff cannot be compelled to ask for partition which he says he does not want, yet the law requires that he should ask for at least one of the other reliefs which it is open to him to ask for. It is certainly open to him to ask for recovery of joint possession or for confirmation of possession jointly with defendants Nos. 1, 2 and 3. Having failed to do either, the suit is bad as at present framed.

17. The authorities all say that what is to be looked at is the real object of the suit. If the real object of the suit is to get a declaration which will enable the plaintiff hereafter to seek further relief to which the plaintiff is at present entitled, the Court will not grant the declaration. So when the plaintiff sued for a declaration in respect of what he described as a hereditary trust under the management of his adoptive father, it was held that if the devolution of the office of hereditary trustee was to be held as governed by the rules bearing on the holding of joint family property, the plaintiff could have claimed joint possession and management and a suit for a mere declaratory decree was unsustainable under the proviso to section 42, Specific Relief Act, Nataraja Chetty v. Kolandavelu Chetty 15 M.L.J. 436.

18. There are also authorities which explain how the discretion of the Courts, even though a mere declaration may be permissible under section 42 of the Specific Relief Act, should be exercised. It has been observed in all the High Courts in this country that the discretion should be used with the utmost caution.

19. This principle was recently affirmed by Jenkins, C.J., in Deokali Koer v. Kedar Nath  15 Ind. Cas. 427 : 39 C. 704 : 16 C.W.N. 838. That distinguished Judge observed that even in cases where section 42 of the Specific Relief Act does not limit the powers of the Court to give declaratory decrees, as when such a declaration is ancillary to the consequential relief and sanctioned by long established practice, the Court should be circumspect and even chary as to the declaration it makes. It is ordinarily enough that the relief should be granted without a declaration. In the present case the relief claimed is not even ancillary. The suit is for a mere declaration which the law forbids. No question of discretion arises.

20. The plaintiff is a Mitakshara son, who, if his adoption is proved, as it has been proved, is entitled to claim joint possession with the other members of the joint family; and this suit has obviously been brought in the declaratory form simply for the purpose of evasion of stamp duty.

21. The order, therefore, which I think we ought to make in this case is the same as that made by Jenkins, C.J., in the case cited above.

22. We will give the plaintiff leave to amend his plaint and to add a prayer for consequential relief, so as to bring his suit within the scope of section 42of the Specific Relief Act; and in order that he may have sufficient time to pay up the necessary Court-fees we will fix the first of May 1917 as the date on or before which such payment is to be made. Upon the appeal being put up before us on that date we will determine the nature of the issues to be framed and tried.

23. The plaintiff must come on the date fixed prepared to state the nature and scope of the amendment he wishes to make.

24. In the event of the plaintiff's failing to comply with this order, the appeal will succeed and the suit will be dismissed with costs in all Courts.