Mir Iqbal Husain, J.:— This appeal raises several interesting issues, and is against differing judgments of the Courts below; the trial Court decreed the plaintiff's suit. The District and Sessions Judge, Bidar, reversed that decision and held in favour of the second defendant Madhava Rao who is the contesting respondent in this appeal. Plaintiff Revappa, minor by guardian Karibasappa has come up by way of second appeal.

2. The facts of the case are briefly as follows: It is contended on behalf of the plaintiff Revappa, minor by his natural father Karibasappa that he is the adopted son of Madappa, the first defendant in the case. According to the plaint, the adoption has taken place on the 18th of Kurdab 1356F. But there is no document to evidence the adoption. It is contended on behalf of the plaintiff that due to certain circumstances Madappa came under the influence of the second defendant Madhava Rao, the contesting respondent in the present appeal and while he was so under his influence, on the 11th of Aban, 1358F Madappa executed a gift deed in favour of the second defendant, Madhava Rao giving the second defendant 8 acres 36 guntas in survey No. 57 and 7 acres and 5 guntas in survey No. 51 of Kamalnagar village.

3. This gift is evidenced by a registered gift deed which is marked as Exhibit IB in the case. The second defendant, on the 24th of Aban 1358F obtained a decree against Madhappa, his donor declaring that he (the second defendant) Madhava Rao, viz., the Donee is entitled to shikmi rights in those two survey numbers. The decree also granted him perpetual injunction restraining Madhappa from interfering with his possession.

4. In the present suit filed on behalf of the plaintiff, he has prayed for a declaration of his adoption as the son of Madhappa and for the cancellation of the gift deed dated 11th of Aban 1358F executed by Madhappa in favour of the second defendant Page: 98Madhava Rao, the contesting respondent before us. In that suit, the first defendant filed a statement consenting to the claim put forward on behalf of the plaintiff. But the second defendant viz., Madhava Rao contested the plaintiff's suit.

5. He admitted no doubt that the plaintiff is the maternal grand-son of Madhappa but he denied the adoption. He stated therein that the gift was executed for the maintenance of the first defendant for the services that lie rendered, to the first defendant and for love and affection. He further alleged that the properties were the self-acquired properties of Madhappa and not the ancestral properties as alleged by the plaintiff. He also alleged that he is a close relation of the said Madhappa.

6. On the basis of these pleadings, two important issues were raised in the case:

“1. Whether the plaintiff is the adopted son of Madhappa, defendant 1 and the ceremony was duly performed according to Law?

2. Whether the property in suit is the ancestral property of Madhappa and the plaintiff has got a right in it from the date of his adoption and he is in possession of it with Madhappa?”

7. It is needless to refer to the other issues in the case, as the two issues referred to above cover the whole ground of the arguments addressed at the Bar.

8. As I have stated, the trial Court held that the adoption is proved. With regard to the second issue, it also held that the property is the ancestral property of Madhappa and not the self-acquired property. In appeal, however, the learned District Judge has reversed the findings of the Munsiff and has dismissed the plaintiff's suit.

9. The important point to be considered in this appeal is whether the plaintiff has satisfactorily proved his adoption. I may straightway say that the burden of proving that issue is on the plaintiff. There is no documentary evidence that he could produce in his support. But the plaintiff relies upon the evidence of his natural father who is examined as P.W 1 in the case and five more witnesses.

10. As has been held by the District Judge, all these witnesses are interested. P.W 1 is naturally interested to support the claim of his minor son. In fact, he is the contesting party on behalf of the plaintiff and it is to his advantage as well as to that of his natural born son that the adoption should be held as valid. P.W 2 Shabuddin is a person who has instituted a suit against the second defendant (contesting respondent) restraining Madhava Rao from interfering with the suit lands.

11. Amrutha Rao, the third witness, in this case has given evidence against the second defendant's brother in a murder case. P.W 4 Anna Rao has given evidence against Madhava Rao in the case filed against the latter by Shabuddin. P.W 5 Kantappa has given evidence against the present respondent Madhava Rao in a criminal case. The last witness P.W 6 Malla Setty has given evidence against Madhava Rao in a civil case and against Madhava Rao's brother in a murder case and Madhava Rao has given evidence against this witness in a dacoity case.

12. Thus, it is clear that no independent evidence has been placed before the Court to prove the adoption. The learned Munsiff has not duly considered this aspect of the case. This fact assumes certain importance in view of some other circumstances in the case viz., (1) the absence of an adoption deed or any other document to evidence the adoption; (2) the non-examination of the adoptive father, viz., the first defendant.

13. It is contended by Sri Jagirdar, the learned Counsel for the respondent that the best evidence in this case has not been placed before the Court. Madhappa, the adoptive father who has admitted in his written statement the claim of the plaintiff has not dared to enter the witness-box. His would have been the best evidence in this case.

14. It is also contended by him, that there is a certain statement of the said Madhappa in the criminal proceedings under Section 107 of the Code of Criminal Procedure in C.C.64/52 in the Court of the Munsiff-Magistrate, Bidar which is contrary to the statement made by this defendant, viz., the first defendant before this Court. The contention of Sri Jagirdar is that it is an earlier statement made by him in those proceedings.

15. Exhibit B-27 is an application by defendant 1 Madhappa dated 19-9-1952 wherein he has stated that he has no male issues and that he has only two daughters and the further statement made by him, viz. Exhibit B. 28 in the same case is to the effect that he has no son or wife and that Madhava Rao is looking after him and maintaining him. These statements are entitled to great consideration at the hands of the Court.

16. It is argued contra by Mr. Zakaulla, the learned Counsel for the appellant that these exhibits were not admitted by the plaintiff at the time when they were produced in the trial Court. These documents have not been put to the party. Hence, the evidentiary value of these exhibits is not much. No doubt these are admissions made by the party against his own interest.

17. What a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted, the fact admitted must be taken to be established. Mr. Jagirdar, however, relies on a decision of the Full Bench of the Lahore High Court reported in Firm Malik Des Raj Faqirchand v. Firm Piaralal Ayaram, AIR 1946 Lah 65, wherein his Lordship justice Mahajan (as he then was) has laid down certain principles for guidance in such circumstances which are as follows:

“(1) A party's previous admission is relevant under Section 21 and can be used as evidence against him if that party has not appeared in the witness-box at all. The value of that admission as a piece of evidence depends on the circumstances of each case. But ordinarily an admission is a valuable piece of evidence.

(2) Admission is a relevant piece of evidence and can be used as legal evidence against a party even in cases where the party appears in the witness-box but makes no statement inconsistent or contradictory to that admission and a denial of that admission is not involved in the statement made by the party in the witness-box by considering the statement as a whole”.

18. In this case there is no conflict between the sworn word in Court and the previous admission in the case, and therefore, is outside the ambit of Section 145 Evidence Act and therefore, it follows that it is outside the rule laid down by their Lordships of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit, ILR 39 Bom 441 : (AIR 1915 PC 7).

“(3) The previous admission of a party who has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission and the statement made in the witness-box is such which involves a denial of Page: 99the previous admission or runs counter to that admission then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in S. 145, the admission contained in the previous statement cannot be used as legal evidence against that party.”

19. Mr. Jagirdar relies on the first principle enunciated in this case. There is a Full Bench decision of the Allahabad High Court reported in Ajodhya Prasad v. Bhawani Shanker, (S) AIR 1957 All 1, where it is held that a previous admission is admissible without being put to the witness. In that case the Counsel for the respondent admitted the document and they were accepted by the Court as evidence in the case.

20. But when later on the respondent appeared in the witness-box, these admissions were not put to him in cross-examination. Still the majority of the Judges constituting the Full Bench held that the party producing such documents can be permitted under Section 21, Evidence Act, to use them as substantive evidence in the case without drawing in cross-examination the attention of the opponent to these admissions.

21. In this respect, the Full Bench decision of the Lahore High Court in Mallick Des Raj's case, AIR 1946 Lah 65, was dissented from. This Full Bench decision of the Allahabad High Court follows the Full Bench decision reported in Mst. Ulfat v. Zubaida Khatoon, AIR 1955 All 361, where it is held that an admission by a party in a previous suit is admissible in evidence in a subsequent suit and the burden is upon the party making it to show that it was wrong on the principle that what a party himself admits to be true may reasonably be presumed to be so, though the party making the admission may give evidence to rebut this presumption.

22. But unless and until that is satisfactorily done, the fact admitted must be taken to be established. This is true notwithstanding the fact that statement was not put to the party making it when she came into the witness-box. Even this decision dissents from the Full Bench decision of the Lahore High Court. It is not necessary for me to evaluate the merits of the decisions cited in view of the fact that even without the two documents Exhibits B. 27 and B. 28, there is ample evidence to support the contention of Mr. Jagirdar that the plaintiff has failed to prove the issue of adoption.

23. There is also another fact that can be taken into consideration in this connection. It is urged on behalf of the plaintiff that the ceremony of adoption was performed by one Shanmukaiah. If so, it was incumbent on the plaintiff to have examined the said person. He has not done so. While, on the other hand, one Shanmukahaiah has been examined as D.W 4 on behalf of the defendant contesting respondent.

24. He states that he is the jangam who generally performs such ceremonies and he is of Kamalnagar, the native village of Madhappa where the alleged adoption seems to have taken place. He says mat he is the Matadhipathi of Kamalnagar and also a purohit for the last 12 years and all the lingayats get his services for the performance of ceremonies like adoption. In so many words he denies that any adoption has taken place in Madhappa's house, i.e, the house of the first defendant.

25. The evidence of this witness is entitled to great value. An argument has been advanced by Mr. Zakaulla in this connection and that is this: This evidence does not rule out the possibility of existence of another Shanmukaiah of Balki and the Balki Peetha is the head Peetha while Kamalnagar is only a subsidiary one. But if that is so, has any attempt been made to get Balki Shanmukaiah and examine him as a witness? It has not been done.

26. Even apart from that, the local Peetha and the purohit or the mathadhipathi of that peetha is the person whose services are generally resorted to for the performance of such ceremonies. On behalf of the defendants quite a number of witnesses have been examined and it is not necessary for me to refer to them. They deny that any adoption has taken place. This, together with the evidence that I have discussed above, leads to one and the only conclusion viz., that the plaintiff has failed to establish the factum of adoption.

27. At one stage, Mr. Zakaulla, the learned counsel for the appellant, argued that transfer of possession is an essential ingredient for completing and validating a gift deed and that without such a transfer, the gift is invalid. But on a further consideration he gave lip this contention and in my opinion, very rightly too.

28. Section 123 of the Transfer of Property Act lays down that for the purpose of making a gift of immoveable property, the transfer must be effected by registered instrument signed by or on behalf of the donor and attested by at least two witnesses, Contrasting this with the provision for transfer of moveable property, also mentioned later in the said section, which contemplates the transfer either by a registered instrument or by delivery of possession, I find that the emphasis so far as the transfer of immoveable property under the general law is on the execution of an instrument properly executed and not so much on the actual delivery of the property.

29. Under the Mohammadan Law, however, transfer of possession of the property which is the subject matter of the gift is an essential condition to validate the gift. In the absence of such a transfer, the gift becomes invalid. Further support is found for this view by the enactment of Section 129 of the Transfer of Property Act which categorically states as follows:

“Nothing in this chapter relates to gifts of moveable property made in contemplation of death or shall be deemed to affect any rule of Mohammadan Law.”

30. But gifts under Mohammadan Law are exempt from the purview of this chapter but not gifts under the Hindu Law. Section 123 of the Transfer of Property Act is applicable to such gifts which connotes that delivery of possession of the property gifted is not an essential ingredient for validating the gift under the latter law.

31. The second aspect of the case that requires consideration is whether the properties are the self-acquired properties of Madhappa or his ancestral properties. This has a certain bearing on the gift deed. If the properties are ancestral properties of Madhappa, whether the adoption is proved or not, Madhappa will not have the right to give, by way of a gift, the whole lot of the properties.

32. He could gift away only his share in the properties and nothing more than that. Mr. Jagirdar for the respondent has contended that the District Judge who has decided the issue has relied upon the very evidence placed before the Court by some Page: 100of the plaintiff's witnesses which he has considered at some length and which goes to show that these properties are the self-acquired properties of Madhappa.

33. In fact, he has relied upon the statement made by P.Ws 2, 3 and 5 in the case and also on the evidence of the defendants' witnesses. It is contended by Mr. Jagirdar that the plaintiff's witnesses themselves have stated in so many words that the properties are the self-acquired properties of Madhappa which is further supported by the evidence of the defence witnesses as well as the documentary evidence. A scrutiny of the oral and documentary evidence in the case leads me to the conclusion that his contention is correct.

34. As against this evidence Mr. Zakaulla relies on one statement and that is this. According to him the party stated that originally these properties belonged to one Soma, the father of Madhappa. May be at one time they may have belonged to Soma, but due to efflux of time and change in circumstances, such as non-payment of taxes etc., the property has left the hands of Madhappa and rater Madhappa has acquired it.

35. This leads to a change in the very character of the property instead of being ancestral, it has become the self-acquired property. Even this aspect has been duly considered by the learned District Judge. He has come to the conclusion that the plaintiff has failed to establish that the properties are the ancestral properties of Madhappa.

36. Considering the evidence as a whole I find there is no reason to differ from the findings of fact given by the Court below. There is one further circumstance which is a bar against the plaintiff succeeding in this appeal. The findings arrived at by the Courts below though they are differing ones, are findings of fact on the two issues dealt with above.

37. What then are the powers of this Court under the provisions of Section 100 of the Code of Civil Procedure? I may straightway say that the present Civil Procedure Code applies to this case because the suit was filed long after its application to the erstwhile Hyderabad State as well as to this 1 State. The suit was filed on 2-3-1953. The power of this Court, therefore, of upsetting a decision of facts arrived at by the first Appellate Court is very limited.

38. Unless that judgment is perverse, unless certain points of law have arisen which require consideration, unless the learned Judge has disregarded the procedure and there is a substantial error or defect in it or unless the Court below has failed to determine some material issue of law or usage or unless the decision is contrary to law, this Court should not easily upset the findings arrived at by the Court below.

39. In this connection I would like to refer to two decisions of the Privy Council which clinch the issue. The first case is the one reported in Ramji Patel v. Rao Kishore Singh, AIR 1929 PC 190, wherein his Lordship Sir Lancelot Sanderson has held as follows:

“The learned Judicial Commissioners on the hearing of the anneal entered into the consideration of questions which were not open to them having regard to the provisions of Ss. 100 and 101, Civil P.C”

40. After referring to these two Sections his Lordship states further as follows:

“With reference to these sections their Lordships find it necessary once more to refer to the well-known passage in the judgment of Lord Macnaghten in Mt. Durga Choudhrain v. Jawahir Singh Choudhari, (the case reported in ILR 18 Cal 23), which dealt with the material sections relating to second appeals in the Code of Civil Procedure, 1882. The passage is as follows:

“………It is enough in the present case to say that an erroneous finding of fact is a different thing from an error or defect in procedure and that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be. Where there is no error or defect in the procedure, the finding of the first appellate Court upon a question of fact is final, if that Court had before it evidence proper for its consideration in support of the finding.”

The provisions of the above mentioned Sections of the Code of 1908 and the above mentioned ruling, which is applicable to the present code, were disregarded in the present case.”

41. So says his Lordship and later on holds that:

“It is not open to the Court of the Judicial Commissioner to interfere with either of the above-mentioned findings of fact of the first appellate Court, inasmuch as there was ample evidence in support of his findings of the first appellate Court which was proper for its consideration.”

42. Taking the present appeal before us into consideration the learned District Judge has not only properly appreciated the evidence but his findings, to me, appear to be correct. He has given a reasoned judgment. I find the above principles enunciated by his Lordship of the Privy Council apply, in an ample measure, to the present case. Even in that case, there were different findings of the Court below on facts.

43. Therefore their Lordships of the Privy Council held that was not permitted under Section 100 of the Code of Civil Procedure and that decision was not maintainable under the provisions of Section 100 of the Code of Civil Procedure. Another decision reported in the same volume further supports this aspect of the case and that is the decision reported in Midnapore Zamindary Co. Ltd. v. Secy. of State, AIR 1929 PC 286. His Lordship Sir Binod Mitter who delivered the judgment of the Privy Council stated as follows:

“Their Lordships have to observe at the outset that no second appeal lies on the ground that the District Judge came to an erroneous finding of fact. The only question which the High Court could consider was whether the District Judge had before him any evidence proper for his consideration in support of his finding.”

44. Quoting with approval the decision in Anangamanjari Choudhrain v. Tripura Soondari, 14 Ind App 101, corresponding to ILR 14 Cal 740 (PC), which lay down the law, viz.

“It was in the opinion of their Lordships within their jurisdiction (that is to say within the jurisdiction of the Judges on a second appeal) to dismiss the case, if they were satisfied that there was, as an English lawyer would express it, no evidence to go to the jury, because that would not raise a question of fact such as arises upon the issue itself but a question of law for the consideration of the Judge.”

45. Later on his Lordship has stated as follows:

“If he (the District Judge) had evidence proper for his findings notwithstanding the statutory Page: 101presumption then it seems to their Lordships that his findings of fact were final and conclusive.”

46. So is the case in the present appeal. The findings of the learned District Judge on facts are final and conclusive. He has, in so many words, stated why the judgment of the Court below is wrong and has given ample reasons for his findings in support of the plaintiff-respondent's case. I have no reason to differ from the findings of the learned District Judge. In the result, this appeal is to be dismissed and is so ordered.

47. As regards costs, we order that each party should bear his own costs of this Court.

LC/V.S.B

Appeal dismissed.