1. This appeal arises out of a suit brought under Section 92 of the CPC. The allegations in the plaint were that Lala Shib Lal had by Will, dated the 18th of September 1911, and also by another deed executed during his life-time, created a trust of certain property, that Raghu Nath Das in collusion with Nathu Mal and two other trustees had taken possession of the trust property and misappropriated the same and converted it to their own use. The defence of Raghu Nath was that he was the adopted son of Shib Lal, that the family was a joint family, that the property was anoestral and that Shib Lal had no power to create the trust (Raghu Nath himself brought the suit out of which the connected Appeal No. 265 of 1913 arises). Nathu Mal put in no written statement the Court below has found that Raghu Nath and Shib Lal were separate at the time of Shib Lal's death. It also found that the trust was validly created and that a breach of trust was committed by some of the trustees and, amongst others, by Nathu Mal. Nathu Mal did not appeal against this decree by which he was ordered to render accounts. The suit brought by Raghu Nath was of course also dismissed, both suits being tried together.
2. It has not been seriously contended that Shib Lal did not know and approve of the contents of his Will, or that the same was not duly executed by him. The evidence on the point is overwhelming and we entirely agree with the decision of the Court below. As to whether the property was ancestral, the Court below has found that Shib Lal was the sister's son of Bansidhar who was the original owner and from whom the property is said to have descended. Shib Lal was not the natural Bon of Bansidhar, and accordingly the property would not be ancestral in his hands unless he was the validly adopted son of Bansidhar. We see no reason whatever to differ from the view taken by the Court below on the evidence that Shib Lal was the sister's son of Bansidhar. In the absence of a special custom (which would require to be proved), the adoption of a sister's son is invalid according to Hindu Law. The property was not, therefore, ancestral if the hands of Shib Lal. In addition to this, there is the clearest admission under the hand of Raghu Nath Das himself that he and Shib Lal had separated prior to the death of the latter. The result is that the decree of the Court below is correct. We accordingly dismiss the appeal with costs, including in this Court fees on the higher scale.
3. Appeal dismissed.