LALLAN RAM Vs. GOBRI RAM

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for declaration that defendant No. 1 was not the adopted son of the plaintiff and that the property shown in list Kha and Da of the plaint was the exclusive property of the plaintiff. The suit was contested by the defendant No. 1 on various grounds and was partly decreed and partly dismissed by the trial Court. The trial Court found that the defendant No. 1 was the adopted son of the plaintiff and consequently it dismissed the suit so far as relief of declaration that defendant No. 1 was not the adopted son of the plaintiff is concerned. In regard to the relief about ownership of the property in dispute a dec ree was granted by the trial Court declaring the plaintiff and defendant No. 1 to be coowners of the said property. On appeal by the plaintiff the Lower Appellate Court has decreed the suit for declaration that the plaintiff was the exclusive owner of the pro perty in dispute. It has, however, dismissed the suit for the second relief, viz. , that the defendant No. 1 was not the adopted son of the plaintiff. Even though the Lower Appellate Court on appraisal of evidence has recorded a finding that the defendant No. 1 had not been proved to have been adopted by the plaintiff, it dismissed the suit so far as this relief is concerned on the ground that the suit qua this relief was bar red by time. Aggrieved the defendant has filed this second appeal.

(2.) IN the second appeal the finding of the Lower Appellate Court that the de fendant No. 1 was not the adopted son of the plaintiff has been challenged mainly on two grounds: (1) that the said finding is not borne out from the evidence on record and (2) that in any case the principle of factum valet was applicable to the facts of the case. So far as the first point is concerned the finding recorded by the lower Appellate Court being based on appraisal of evidence it is not open to this Court to reappraise the said evidence and record a contrary finding in second appeal. The plea of fac tum valet is also not sustainable. The mean ing of this doctrine is that where a fact is accomplished or an act is done and finally completed, though it may be in contraven tion of a hundred directory texts, the fact will stand, and the act will be deemed to be legal and binding. This doctrine will not apply where an act is done in contra vention of texts which are in their nature mandatory. IN the instapt case the Lower Appellate Court has recorded a categorial finding that the ceremonies of adoption in cluding that of giving and taking were not proved to have been performed. Under the Hindu Law performance of the cere mony of giving and taking is a mandatory requirement for a valid adoption. See Lakshman Singh v. Rup Kanwar, AIR 1961 SC 1378. Once this mandatory requirement is lacking the fact of adoption cannot be said to have been accomplished and there is consequently no scope of applying the doctrine of factum valet.

(3.) IN the result the appeal fails and is dismissed with costs. Appeal dismissed. .