LALA BABU RAM Vs. KISHEN DEI

JUDGEMENT

(1.) This is a defendant's first appeal. The plaintiff-respon-dent Srimati Kishan Dei is the widow of one Lala Madan Gopal who was admittedly the last mate owner of the properties in dispute. The defendant-appellant Lala Babu Ram alias Brij Kishore is the son of Srimati Sohini Devi, daughter of Lala Narain Dass, who was the paternal uncle itatners brother) of Lala Madan Gopal aforesaid. The plaint allegations are as follows :-- Lala Ram Dass, the father of the defendant-appellant Lala Babu Ram had considerable influence upon Lala Madan Gopal with the result that the latter declared the aeren-dant-appellant to be his adopted son on the 21st of May, 1940 and changed his name from Babu Ram to Brij Kishore. Lala Madan Gopal died on the 8th of October, 1942, and the plaintiff as also the defendant entered into possession or the property in dispute. The property was managed By the defendant-appellant. With the lapse of time the defendant-appellant became indifferent to the plaintiff and started ill-treating her with the result that the plaintiff had to start a separate mess. The defendant-appellant also started destroying the property left by Lala Madan Gopal. In April 1946, the plaintiff had legal consultation and was advised that under the Mitakshara law La!a Madan Gopal could not have adopted the defendant-appellant who was his causin sister's son with the result that the adoption was invalid and void and that she was the exclusive heir of Laia Madan Gopal. The relief claimed in the plaint was for possession over the property in dispute to the exclusion of the defendant ana in the alternative to one-half share in the same if the Court found the adoption of the defendant to be valid. A decree for Rs. 2,000/- was also prayed for as mesne profits.

(2.) In the written statement filed by the defedant-ap-pellant it was admitted that his mother's father Lala Narain Dass was the uncle of Lala Madan Gopal. It was also admitted that on the death of Madan Gopal the plaintiff and the defendant became the owner of the property left by Laia Madan Gopal. The suit was contested mainly on the pleas that Lala Madan Gopal had adopted the defendant as the former inherited the entire property belonging to Lala Narain Dass, that the adoption of the defendant was valid both under the Mitakshara law as also under the custom prevailing among the Rastogi Banias, that the adoption having taken place on the 11th of May, 1940, and not on 21st May 1940, the suit was barred by limitation and that Lala Madan Gopal having adopted the defendant in the presence of the plaintiff and after the adoption having married him with the consent of the plaintiff, the plaintiff was estopped from pleading that the adoption was invalid on this ground as also on the ground that after the death of Lala Madan Gopal the plaintiff and the defendant executed a deed of gift in favour of Smt. Rajeshwari, the plaintiff's (laughter, in wmcn the defendant was described as the adopted son of Lala Madan Gopal.

(3.) The learned Civil Judge framed the following nine issues in the case: