SALEKH CHAND DEAD Vs. SATYA GUPTA

JUDGEMENT

(1.) Second appeal filed by the defendants having been allowed by the learned single Judge of the Allahabad High Court one of the plaintiffs Salekh Chand has filed this appeal. The legal heirs of the another plaintiff Om Prakash, who died on 28-2-1998 (pro forma respondent No. 4) have been im pleaded in this appeal. Om Prakashs widow Smt. Ram Kumari died on 2-6-1999 and, therefore, their son Munna Lal is pro forma respondent No. 4.

(2.) Background facts in a nutshell are as follows : A suit filed by the plaintiffs Om Prakash and present appellant Salakh Chand was dismissed by learned Additional Civil Judge, Ghaziabad in Suit No. 699/84. Learned Additional District Judge, Ghaziabad reversed the judgment and decree dated 5-3-1990 by judgment and decree dated 22-2-1998. The plaint averments refer to the following facts : Om Prakash and Salekh Chand filed suit No. 699 of 1984 against Smt. Satya Gupta and one Brijesh Kumar. Shiv Om Banshal and Mahendra Kumar Banshal (Respondent Nos. 2 and 3 in this appeal) were impleaded as defendant Nos. 3 and 4. The plaint allegations were that House No. 104 (old number) with its new numbers 175 and 176 described in the plaint belonged to one Pares Ram who had four sons namely, Jagannath, Dina Nath, Anand Swaroop and Battu Mal. The pedigree was as follows : Dina Nath died issueless out. During his lifetime he had sold his 1/4th share to Battu Mal. Surendra Kumar and his mother (widow of Anand Swaroop) had sold their 1/4th share to Smt. Satya Gupta by registered saledeed. Brijesh Kumar defen dant No. 2 is the adopted son of Battu Mal. On the death of Jagannath his son Chandra Bhan succeeded to share of Jagannath in the suit property. On the death of Chandra Bhan his widow succeeded to the suit property. She executed a sale deed dated 26-7-1979 of her share in the suit property. Thus the plaintiffs are co-sharers of 1/4th share in the suit property whereas defendant Nos. 1 and 2 are co-sharers of 3/8 share each in the suit property. It is alleged that Jagannath had no issue. He had adopted Chandra Bhan who happens to be the son of his real sister and the sisters husbands name was also Jagannath. Ceremony of adoption was preformed in accordance with the customs of the community prevalent among the parties in the month of Flagun Samvat 1985. There was a custom in the community of the co-sharers to adopt sisters son and Smt. Shanti Devi was wife of Chandra Bhan. The plaintiffs wanted to get the suit property partitioned and have their separate 1/4th share in the suit property. On the above pleadings the relief claimed was that the suit property be partitioned by metes and bounds and the plaintiffs be given possession on the separate share allot ted to them.

(3.) The High Court found that question No. 3 as formulated above was not a sub stantial question of law but held that there was no prevalent custom permitting adop tion of the sisters son and, therefore, the appeal was allowed.