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That authority is in terms narrated in the deed of adoption of defendant No. 1 of April 13, 1903. The original will has not been produced, but a copy has been produced, which was made in 1897, under circumstances which will be referred to later.

7. Khushal Singh and his family were Hindu Jats, and the appellants maintain that they were governed by the Mitakshara law, under which the adoption of an orphan is admittedly invalid. But the respondents maintain that, at the time of his migration in 1858, Khushal Singh was governed by the customary law of the Delhi District, that he carried it with him to the Meerut District, and retained it till his death. It is not disputed that, if the customary law applied to Khushal Singh when he left the Delhi District in 1858, he retained it till his death. The appellants, however, maintain that the customary law did not apply to Khushal Singh in 1858, on two grounds, namely, that its application was limited to agricultural village communities among the Jats, and that, in any event, it did not apply to Nahar Singh, who was a ruling chief with sovereign powers, or his family.

21. In their Lordships' opinion the respondents are entitled to the benefit of the principles above referred to, and that, in that view, the genuineness of the will is sufficiently established. Accordingly, the Rani had authority to adopt, provided that the adoption is valid in other respects.

22. Their Lordships agree with the view of the High Court that the adoption of defendant No. 1 was warranted by the terms of the authority given in the will.

23. The next question is whether Khushal Singh, when he left Ballabgarh in 1858, was governed by the customary law of the Delhi District. The respondents rely mainly on the riwaj-i-am prepared for the Delhi District in 1880, certified extracts from which have been produced, and the Manual of the Customary Law of the Delhi District published officially in 1911 from the riwaj-i-am completed shortly before. It is clear that the Jats are included and also that the enquiries included Ballabgarh as part of the Delhi District. The value of the riwaj-i-am as evidence of customary law is well established before this Board ; the most recent decision is Vaishno Ditti v. Rameshri (1928) L.R. 55 I.A. 407, in which the judgment of the Board was delivered by Sir John Wallis, who states (p. 421) :-

It has also been found by this Board that, though such customary law is to be found principally amongst the agricultural classes, it is also to be found amongst classes which are not agricultural : Ramkishore v. Jainarayan (1921) L.R. 48 I.A. 405, 410. Their Lordships agree with the High Court that such customary law, if found to exist in 1880 and 1910, must be taken to have the ordinary attribute of custom that it is ancient, and that, unless the contrary is proved, it must be assumed to have existed prior to 1858, when Khushal Singh left the Delhi District. Accordingly, it is for the appellants to rebut the prima facie evidence of the riwaj-i-am that the customary law of the Delhi District applied to Khusha Singh, as a Jat resident therein, at the relevant date.

25. Accordingly, their Lordships are of opinion that the respondents have established that the customary law applied to Khushal Singh when he left the Delhi District in 1858. But the appellants maintain that the adoption of defendant No, 1 was invalid in that it did not comply with the customary law in two respects, viz., that defendant was an orphan, and that he was not of the same gotta as Khushal Singh, either of which would invalidate the adoption.

26. The reason that under the Mitakshara law, an orphan cannot be adopted, is because a boy can be given in adoption only by his father or his mother, and such giving is an essential part of the ceremonies, but answer 87 in the 1911 manual docs not prescribe such giving as a formality necessary to constitute a valid adoption, answer 83 shows that a brother can be given in adoption, and answer 86 shows that a sister's son or a daughter's son may be adopted ; and, further, answer 8 shows that a boy may be adopted even after tonsure or investiture with the sacred cord, and that there is no age limit, except, that the age of the adoptive son should be less than that of the adoptive father. This- makes it clear that the conditions of adoption under the Mitakshara law are completely superseded by the customary law, and there is no reason for excluding an orphan under the latter ; but, if it were necessary, their Lordships agree with the High Court that the evidence in the present case is sufficient to place the validity of the adoption of an orphan beyond question.