MANGIBAI GULABCHAND Vs. SUGANCHAND BHIKAMCHAND

JUDGEMENT

(1.) THIS is an appeal from a judgment of the High Court at Bombay reversing a judgment of the First Class Subordinate Judge, Thana. The suit is for a declaration that the plaintiff (now respondent No. ]) is entitled as an adopted son to a half share and partition of certain joint family property in the Thana district, Bombay. The only question now in issue is whether the adoption of respondent No.1 by respondent No.2, the widow of one Bhikamchand, a member of the joint family, is valid. The Subordinate Judge held it invalid because it was made without the consent either of the adopter's deceased husband or of the nearest male member of his family, his brother Gulabchand, whose heirs are the present appellants. The High Court held that the adoption was valid notwithstanding the absence of these consents.

(2.) THE joint family are Marwari Jains of the Visa-Oswal community. THE family migrated some generations ago from Jodhpur State to the Thana district. THE two brothers, Gulabhchand and Bhikamchand, lived together till Bhikamchand died in April, 1926. In 1927 his widow Jadavbai wanted to adopt a son (not respondent No.1) but Gulabchand objected and she then abandoned the idea. On April 80, 1936, however, she sent a formal notice announcing her intention to make an adoption to Gulabchand, who replied that she had no right to make an adoption and that he was strongly opposed to it. Nevertheless she adopted respondent No.1 on May 8, 1936; a deed of adoption was executed on the same day and registered on June 2, 1936. THE appellants refused to admit the validity of the adoption and to give respondent No.1 a share of the family property. Accordingly on September 3, 1936, respondent No.1, through his natural father as guardian and next friend, instituted the suit.

(3.) COUNSEL for the appellants submitted that it would now be proper that they should have an opportunity of adducing further evidence to discharge the onus thus laid upon them. The argument was that the appellants might not have offered all the evidence available to them because they were entitled to assume that the onus lay on respondent No. I and to regard the evidence of his natural father, referred to above, as fatal to this case. Their Lordships are unable to assent to the appellants' submission. The appellants were in no way misled into withholding evidence ; they were not entitled to assume, when they were leading their evidence, that the onus would ultimately be found to rest on their opponent, and it was for them to adduce all the evidence that they deemed helpful for their case. They therefore cannot be allowed the indulgence of a second opportunity.