The appeal filed against the judgment and decree passed in R.A.No.18/85 on the file of the Principal District Judge, Mysore arising out of the judgment and decree passed in O.S.No.41/82 on the file of Civil Judge (JR.Dn) Nanjangud. The appellant is the third defendant in the suit. The respondents No.1 and 2 are the plaintiffs filed a suit for declaration of title in respect no.1 and 2 are the plaintiffs filed a suit for declaration of title in respect of the suit properties and for permanent injunction against the defendants not to interfere with the possession and enjoyment of the suit properties and for permanent injunction against the defendants. The plaintiff in alternative seek relief of possession. The plaintiff claims to be the foster daughter of one Siddegowda (Senior) the propositus from whom she has purchased the suit properties under registered sale deed at Ex.P.1 dated 17.5.1972 for valuable consideration of Rs.4000/- since then claims to be in possession and enjoyment. The second plaintiff is the husband of the first plaintiff. In view of the interference with her rights, suit came to be filed. Defendants No.2 to 5 are the sons of the first defendant. The defendants contend that the propositus Siddegowda had adopted the third defendant Siddegowda (Junior) as his son. The properties are ancestral property, the sale of the property is not for legal necessity or for the family benefit. Therefore would not bind the third defendant who is the adopted son and had become the co-parcener along with the propositus Siddegowda by legal fiction. Therefore, the claim of exclusive title in respect of the properties is stoutly resisted. Besides several other technical defence contentions are taken.

2. The trial court finds that the third defendant has failed to prove the valid adoption in law. Accordingly upholds the claim of the plaintiff and decreed the suit against the defendants to deliver possession. The first appellate court confirmed the finding in the judgment and decree of the trial court, dismissed the appeal of the third defendant. Hence, the second appeal.

3. The judgment and decree of this court has been set aside by the Supreme Court in Civil Appeal No. 782/01, remanded the matter for fresh disposal in accordance with law.

4. At the time of admission by order dated 23.8.90 the following substantial question of law was formulated by the admission Judge:

Whether the courts below were justified in disbelieving or discarding the adoption plea set up by the appellant in the facts and circumstances of the case

5. There is a concurrent finding of fact by the courts below that the find defendant has failed to prove the adoption. The appellants court finds that D.W.6 a witness to the adoption does not refer to the presence and consent of the natural mother at the time of adoption. Secondly finds that the necessary religious rites and customs required for adoption is not pleaded and proved. Thirdly finds that according to the evidence of D.W.3 and D.W.1 at the time of adoption D.W.3 was aged more than 15 years. In view of the provisions contained in Section 10 of the Hindu Adoption and Maintenance Act holds that the defendants have failed to plead and prove the custom of community to adopt a boy who is aged more than 15 years. For the said reasons the appellate court disbelieves the theory of adoption set up by the defendants No.1 to 3.

6. Admittedly the parties belong to Kuruba Community which forms a part of Chaturtavarna i.e., shudra. The Division Bench Ruling of the Bombay High Court in Haribai Vs. Baba Anna AIR 1977, 289 at para 31 the following observations are made:

31. The history of the evolution of the rule in this country is dealt with great scholarship and precision by Dr. Kane in History of Dharmashastra at pp.679 to 681, as follows;

“As to the age of the boy to be adopted there is great divergence among the medieval writers is also reflected in the case law. In this connection certain verses of the Kalikapurana assume great importance. The Vyavahramaukha and the Dattaka-chandrika hold that the passage is of doubtful authenticity (as the verses are not found in several mss.) while the D.M. (Dattaka Mimansa) and the Niryasndhu hold them to be genuine, and the Sam. K (Samskara Kausthbha) pp.(169-172) after referring to these views states those verses are opposed to what is stated in the Ait. Br.(Aitarya Brahmana) about Sunhasepa who was adopted by Visvamitra as a son even after Upanayana. The verses are. ‘O King, that son whose samskaras up to (including) the cuda (tonsure) ceremony are performed with the gotra of his (natural) father, does not (i.e., cannot) attain the status the adopted son of another. When the ceremonies of cuda and upanayana are performed under his own gotra (by the adoptive father) the dattaka and the other kinds become (recognized as) sons (in the adoptive family) otherwise they are called dasa (slave). After the fifth year the adopted son and the rest cannot be (recognized as) sons. Having taken one who is five years old one (the adopter0 should first perfoem the putresti. These verses state four propositions 1) if all smaskaras from jatakarma to cuda (i.e., including if0 have been performed in the family of birth that boy cannot be adopted in another family; (2) if a boys cuda and other later ceremonies are performed in the family of adoption he is fully an adopted son;(3) a boy over five years of age cannot be adopted at all; (4) a boy whose cuda has been performed in the family of birth may be adopted up to five years, provided the rite called putresti is first performed in the adoptive family before any other ceremony is performed in the adoptive family before any other ceremony is performed on the adopted boy. The D.M(Dattaka Mimamsa) say that the best time for adoption is up to three years, than from three years to five is the next best (gauna) and that after five no boy can be adopted. The D.C(Dattaka Chandrika)(p.36) holds that a boy of the three higher classes can be adopted up to upanayana and that a sudra boy can be adopted till his marriage. The Nirnyasindhu seems to be of the same opinion. The mayukha (Vyavahar mayukha) and Sam K.(Samskara Kaudubha) both hold that even a boy not of the same gotra may be taken in adoption after Upanayana or after marriage and even when the person to be adopted himself had a son. In Bengal, Banaras and Bihar courts hold that the boys must be adopted before Upanayana. The same rule holds good in Madras; but there it is further held that if the boy to be adopted is of the same gotra as the adopter, the adoption may be made after upanayana but before marriage. In Bombay a person may be adopted is of the same gotra as the adopter the adoption may be made after upanayana but before marriage. In Bombay a person may be adopted at any age, even after marriage and even after he has had children and he may be adopted only before his marriage, but in the Bombay Presidency the adoption of a married man and of one having even a child is allowed also among sudras”.

7. In Krishnayya Rao and another Vs. Venkata Kumara Mahipathi Surya Rao, AIR 1935 privy Council 190, at page 193 C1 the following observations are made:

“He was no doubt a major at the time, but this the parties being Sudras was no objection. Having regard to her age and the estate of which she was possessed, she may have thought it desirable to being into her husband’s family someone who could relieve her of the burdens of estate management rather than an infant whom she might never see in manhood.

8. Counsel for the appellant relied on the ratio of the Supreme Today, 2002 (1) Supreme 233. In the said decision at page 235 the following view of the full Bench of the Bombay High Court is approved.

“So long as the Supreme Court does not take a different view from the view taken by the Privy Council the decision of the Privy Council are still binding upon us and when we say that the decisions of the privy Council are binding upon us what is binding is not merely the point actually decided but an opinion expressed by the Privy Council which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given”.

9. In the light of the ratio the counsel for the appellant argued that amongst sudras, there is a custom prevalent in the entire India to adopt a boy over the age of 15 and not before his marriage. Whereas in the Bombay area, there is a custom recognizing adoption of a boy even after the marriage amongst sudra communities. The decision of the Privy Council in this behalf is a binding the ratio. Besides, the decision of the Division Bench of Bombay High Court reported in AIR 1977 has elaborately and succinctly discussed the several authoritative shastric texts which supports the propositions that amongst sudras a boy aged about 15 but not before his marriage could be adopted as per the custom in the entire part of India except Maharastra. Where a boy could be adopted even if he is married.

10. The provisions of Section 10 of the Hindu Maintenance and Adoption Act saves the cases of adoption of a person above the age of 15 if a custom to that effect is prevalent in the community. In Munnalal Vs. S.S.Rajkumar, AIR 1962 Supreme Court page 1493 at para 11 it is laid down thus.

“It is well settled that where a custom is repeatedly brought to the notice of the Courts of a country the courts may hold that custom introduced into the law without the necessity of proof in each individual case. Venkata mahipati Gangadhara Rama Rao V.Raja of Pittapur, 45 Ind App 148 (AIR 1918 PC 81)”.

11. Therefore in view of the ratio laid down in AIR 1963 SC the necessity of pleading and proof of custom in every case does not arise when the Privy council has by law declared that there is a custom amongst the sudras to adopt a boy who is aged above 15 years.

12. “ In the History of Dharmasastra” by P.V.Kane at page 481 the following observations are made;

In the whole of India a Sudra may be adopted only before his marriage but in the Bombay Presidency the adoption of a married man and if one having even a child is allowed also among Sudras (1288 Lingayya Vs Chengalmmal 48 Mad 407 where it was held that even a Sudra cannot be adopted often his marriage (when decision follows the DC)

13. Therefore, the view taken by the appellate court that the third defendant was aged above 15 years and could not have been validity adopted in law, in the absence pleading and proof of custom is an untenable view. The defendants have produced Ex.D1 the pronote executed by propositus Siddegowda, it discloses that the loan under the pronote were borrowed for the purpose of the performing the marriage of the adopted son Siddegowda, obviously the third defendant. The index of land produced at Ex.D2 of the year 1966-67 discloses that the third defendant is the adopted son. The oral evidence also supports the case of adoption of the third defendant.

14. The ruling of the Supreme Court in Debiprasad vs. Smt.Tribeni Devi AIR 1970 C following the ratio laid down by Supreme Court in Laxman Singh Kothari V.Smt Rup Kanwar AIR 1961 SC 1378 [LQ/SC/1961/137] . The relevant extracts of the aaid facts and ratio are reproduced hereunder for convenient reference:

“Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be and giving and taking shall be part of it”.

15. The evidence of defendant witnesses DWs 1to9 fully support the case of adoption. DW 6 the natural father of the third defendant testifies the fact of adoption giving vivid account of the procedures following while giving his son in adoption. DW 5 in his evidence refers to the presence of the first defendant and his wife at the time of adoption and testified to the fact that both of them consented to deliver their son in adoption to the propositus Siddegowda and to his wife. (The view of the appellate court that DW 6 natural father does not speak to the presence and participation of his wife is not a strong and a fatal circumstance to conclude that there was no consent on the part of the natural mother. DE 5 has testified to the fact that natural mother was also present and gave consent. The plaintiff has not cross-examined DW5 to discredit his veracity about the consent and presence of the natural mother at the time of adoption. There is nothing in the evidence of D.W.6 to rule out the consent and presence of his wife at the time of adoption. In the ruling of the Supreme Court it is held that the essential part of the adoption ceremony lies in the delivery of possession of the adopted child by the natural parents to the adoptive parents. According to the evidence of D.W.6 the said essential requirement is fulfilled and established in this case).

16. The fact that the suit property is the ancestral property of propositus Siddegowda is borne out by Ex.D2 index of land and record of rights which shows that Siddegowda inherited the lands from his father Hutchgowda. It is not the case of the plaintiffs that the sale is for a legal necessity and family benefit. The third defendant by virtue of adoption becomes co-parcener by legal fiction. Therefore, the sale of entire extent of land by propositus Siddegowda under Ex.P1 in favour of the plaintiff is bad in law and cannot bind to the extent of share of the third defendant an adopted son.

17. The suit for declaration that the first plaintiff is the exclusive owner of the suit property and for relief of possession is untenable. The plaintiff could purchase only the share of propositus Siddegowda under Ex.P.1. In view of the ruling of this Court 1989 Kar 45 Smt. Neelavva Vs. Smt. Shivawwa, the relief can be appropriately moulded and decree for partition could be granted declaring half share in favour of the third defendant in the suit property. The first plaintiff ass an alienee can workout the remedy of equitable allotment in the final decree proceedings.

18. If there are any other properties available for partition, application can be made to the trial court to include such of the joint family properties in the fold of the suit for working out equitable allotment. The judgment and decree of the appellate court is set aside. Appeal is partly allowed in terms indicated above and preliminary decree to be drawn.