BHOLA CHAUBE Vs. MAN MATUN CHAUBE

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for a declaration that a deed of adoption executed on 21st of November, 1941, by the plaintiff-respondent, acknowledging the adoption of defendant No. 2, was invalid and inoperative on the ground that it was obtained by fraud perpetrated by defendant No. 1 upon the plaintiff. The plaintiff alleged that he was unable to manage his property and had, therefore, decided to appoint defendant No. 1 as his Nukhtare am by means of a deed. It was alleged that the defendant No. 1, taking advantage of his position, had obtained from the plaintiff what transpired, later on, to be a deed of adoption. The plaintiff also alleged that he had asked the defendants to get this deed cancelled, but, as they did not comply with this requirement, the plaintiff had to file his suit. The defendants pleaded that the deed of adoption was valid and executed after the performance of the necessary ceremonies without any fraud or undue influence. The plaintiff deposed that he was unwell at the time of the execution of the document and that it had not been read over to him at all. Similar was the evidence of Dular (P.W. 2) who was an, attesting witness of the deed of adoption. The trial Court disbelieved the plaintiffs version as it found that it did not tally with what was set out in the plaint and it relied upon the indorsement made by the sub-Registrar on the deed of adoption which was registered, showing that the plaintiff knew its contents full well. An attesting witness Bachan Chaubey had also supported the defendants version. The trial Court, therefore, dismissed the plaintiffs suit. The lower appellate court has reversed the decision of the trial Court. It held that, although the plaintiff Knew and understood the contents of the deed fully and no fraud was practised upon him, yet, the mere execution of the deed or adoption by the plaintiff-respondent could not bring about the adoption of defendant No. 2 as satisfactory proof of the"Datta Homam" ceremony was wanting. Evidence given by the defendants, showing that all the ceremonies had been duly performed, was disbelieved by the lower appellate Court which decreed the plaintiffs suit.

(2.) THREE questions have been argued before me on behalf of the defendant-appellant; firstly, that the lower appellate Court has misplaced the Burden of proof in allowing the plaintiffs appeal after holding that the plaintiff had duly executed the area of adoption; and, secondly, that the doctrine of factum valet is applicable in this case, but it was, erroneously, ignored by the lower appellate Court; and thirdly, that the ceremony of"Datta Homam" is not necessary at all to prove in the case of adoption of a son belonging to the same"gotra" as the adoptive father in the case of twice born classes.

(3.) IT was held in Narayan Bhagwantrao v. Gopal Vinayak, AIR 1960 SC 100 at p. 105.