PATEL VALLABH LAKHA Vs. PATEL PURIBEN LAKHA

JUDGEMENT

(1.) PRESENT Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant - original plaintiff challenging the judgment and decree passed by the learned Civil Judge, J. D. , Visavadar in Regular Civil Suit No. 5 of 1978 confirmed by the learned District Judge, Junagadh vide judgment and decree dated 07. 02. 1984 in Regular Civil Appeal No. 77 of 1982.

(2.) THE appellant herein - original plaintiff had instituted Regular Civil Suit No. 5 of 1978 in the Court of Civil Judge (JD), Visavadar for partition of the Hindu Undivided Property as a co-parcener of the Hindu Undivided Family of one Lakha Bogha i. e. natural father of the plaintiff. Suit was resisted by the respondents herein - original defendants by submitting that infact original appellant was adopted by his Uncle Tapu Bogha and even the plaintiff has received entire property of Tapu Bogha as heir of Tapu Bogha and therefore, the plaintiff had no right to claim share in the property of his real father i. e. Lakha Bogha. Accepting the same and on appreciation of evidence the learned Civil Judge (JD), Visavadar vide judgment and order dated 31. 03. 1982 dismissed the said suit. Being aggrieved and dissatisfied with the judgment and order passed by the learned trial Court in Regular Civil Suit No. 5 of 1978 in dismissing the suit, the appellant - original plaintiff preferred Regular Civil Appeal No. 77 of 1982 in the Court of District Judge, Junagadh and the learned District Judge, Junagadh vide impugned judgment and order dated 07. 02. 1984 dismissed the said appeal confirming the judgment and order passed by the learned trial Court. Hence, the original plaintiff has preferred present Second Appeal under Section 100 of the C. P. C.

(3.) MR. D. M. THAKKAR, learned Advocate for the appellant - original plaintiff has vehemently submitted that in the facts and circumstances of the case both the Courts below have erred in holding that the plaintiff is not entitled for obtaining share from the property of HUF of which the appellant - plaintiff is admittedly member. It is submitted that as such alleged adoption by his Uncle -Tapu Bogha was disputed by the appellant - original plaintiff. Under the circumstances, both the Courts below ought to have held that original plaintiff has not foregone his right to get share from the property of HUF on the death of his real father - Lakha Bhoga. It is submitted that both the Courts below have erred in interpreting section 12 of the Hindu Adoption and Maintenance Act while coming to the conclusion that since the appellant is adopted by some other person, the original appellant has no interest in the property of the original family. Therefore, it is requested to allow present Appeal.