HINDU SINGH Vs. RADHABAI

JUDGEMENT

(1.) THIS is an application for permission to appeal in Forma pauperis submitted by the plaintiff -appellant who was allowed to file the present suit in Forma pauperis for partition and possession of the property left by the husband of the defendant valued at Rs.25,511 -8 -0 but bad not succeeded. The claim of the petitioner was based on the allegations that be had been adopted by defendant Radhabai after her husband's death in pursuance of the authority conferred upon her by him during his lifetime. Custom regarding adoption of a married boy was alleged and it was also alleged that although there was specific and express authority of her husband to adopt no such authority was needed amongst the members of their community and that a widow could make an adoption in the absence of specific authority. A deed of adoption said to have been executed by the defendant was also relied upon. The defendant denied the alleged adoption, as also the existence of the alleged authority to her to take the plaintiff in adoption. The alleged custom regarding adoption of a married boy as also one dispensing with the necessity of husband's express authority for adoption were also denied. Besides these facts she also pleaded existence of a will dated 14 -12 -1942 by her deceased husband in her favour whereby he had bequeathed absolutely all his property in her favour. The deprivation of possession in 1955 as alleged by the plaintiff was denied and it was asserted that she was always in possession. The trial Court found against the plaintiff of ail disputed points and consequently dismissed the suit.

(2.) THE plaintiff preferred the present petition for leave to appeal in Forma pauperis. On 19 -9 -1961 this court admitted the petition after hearing Mr. Bharucha for the petitioner and directed issue of notice to the respondent as well as to the Government Advocate. A report is received from the State accepting the fact that the petitioner is not possessed of sufficient means to pay the court fees. The respondent however on appearance contends that the petition deserves to be dismissed as the decision of the Court below is not contrary to law or to any usage having the force of law nor is it otherwise erroneous or unjust. The matter was thereupon placed for hearing.

(3.) ON the other hand it was contended by Mr. Malgawa that it is open for the opponent to induce the Court to hold that there is no reason to think that the decision is contrary to law etc. and the requirements of second clause of Order 44 Rule 1 are not satisfied in spite of the fact that the Court had admitted the petition initially after hearing the petitioner. Reliance was placed upon the decision of Pollock, J., in Bhairanlal Vs. Ambikaprasad [21 MPLC 514=AIR 1937 Nag 150], as also upon the decisions in Tilak Vs. Akhil [AIR 1931 Pat 183 (FB)]. Mst. Powdhari Vs. Mst. Ram Sanwari [AIR 1934 All 1004], Narsingh Dass Vs. Mool Raj [AIR 1958 Raj 133] and Mohd. Un -Nisa Begum Vs. Fayaz Ali [AIR 1958 Panj 437].