Second appeal limits on adoption findings: factual conclusions and unpleaded dwyamushyayana claims cannot be disturbed without legal error.

In second appeal, factual findings on adoption could not be disturbed absent a substantial question of law. The remand order was an open remand, so the earlier appellate findings on adoption did not attain finality, and the dismissed cross-objection did not amount to confirmation. The Court also held that a claim that the adoptee was given by Kishan Lal was not pleaded and could not be established through evidence alone. On the nature of the adoption, a dwyamushyayana adoption requires specific pleading and proof of an agreement that the son belongs to both fathers, which was not shown; the adoption was therefore treated as an ordinary adoption.

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Issues: (i) whether the earlier remand order and dismissal of the cross-objection had the effect of confirming the first appellate court's findings on adoption; (ii) whether the finding that Goverdhan Das was given in adoption by Moti Lal and not by Kishan Lal could be interfered with; and (iii) whether the adoption was proved to be in dwyamushyayana form or only in the ordinary form.

Issue (i): whether the earlier remand order and dismissal of the cross-objection had the effect of confirming the first appellate court's findings on adoption.

Analysis: The remand was held to be an open remand for reconsideration of the appeal on all issues. The earlier judgment of the first appellate court had been set aside in entirety, and the cross-objection against its findings on adoption became infructuous. No final affirmation of those findings could therefore be drawn from the remand order.

Conclusion: The earlier findings on adoption did not attain finality by reason of the remand order or dismissal of the cross-objection.

Issue (ii): whether the finding that Goverdhan Das was given in adoption by Moti Lal and not by Kishan Lal could be interfered with.

Analysis: The Court held that the pleadings contained no specific case that Goverdhan Das was given in adoption by Kishan Lal rather than Moti Lal. In the absence of a pleaded issue, no lis arose on that question, and evidence could not be used to establish a case never put forward. The first appellate court was therefore correct in rejecting that contention.

Conclusion: The finding that Goverdhan Das was not shown to have been adopted by Kishan Lal did not suffer from legal infirmity.

Issue (iii): whether the adoption was proved to be in dwyamushyayana form or only in the ordinary form.

Analysis: The Court explained that a dwyamushyayana adoption requires proof of an agreement that the adopted son shall be the son of both the natural and adoptive fathers, together with the ceremony of giving and taking. The first appellate court, as the final court of fact, had found on appreciation of the evidence that no such agreement was proved and that the adoption was an ordinary adoption. That finding was treated as a pure finding of fact, with no substantial question of law warranting interference under second appellate jurisdiction.

Conclusion: The adoption was not proved to be in dwyamushyayana form and was rightly treated as an ordinary adoption.

Final Conclusion: The High Court erred in interfering with the first appellate court's factual findings. The decree restoring the suit could not stand, and the first appellate court's dismissal of the suit was restored.

Ratio Decidendi: In second appeal, factual findings of the final court of fact on adoption cannot be disturbed absent a substantial question of law, and a dwyamushyayana adoption must be specifically pleaded and strictly proved by evidence of an agreement that the son shall belong to both fathers.

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