TILOKCHAND Vs. BHAGIRATH

JUDGEMENT

(1.) THIS appeal by the defendant No. 1 is directed against the judgment and decree dated 7-12-1967 passed by the First Additional District Judge, Dhar in Civil First Appeal No. 100-A of 1966 arising out of the judgment and decree dated 31-3-1964 passed by the Civil Judge, Class I, Dhar, in Civil Suit No. 2 of 1963.

(2.) DECEASED Babulal was the husband of defendant No. 2 Lilabai. He was elder brother of defendant No. 1 Tilokchand. Plaintiff Bhagirath obtained a decree against defendant No. 2 Lilabai for Rs. 5870 in Civil Suit No. II of 1960 of the Court of Civil Judge, Class I, Dhar. In execution of the aforesaid decree, agricultural land bearing survey No. 321 area 57-f bighas situate in village Labrawada was attached Defendant No. 1 Tilokchand preferred are objection under Order 21, rule 58 of the Code of Civil Procedure alleging that land measuring 18* and 4 biswas out of the attached land was not liable to be attached and sold in execution of the decree against Lilabai. This objection was allowed and the land objected to was released from attachment. Thereafter the plaintiff filed the present suit under Order 2 f, rule 63 of the Code of civil Procedure. His case was that after the death of Babulal, the husband of Lilabai, in the year 1950 51, Lilabai defendant No. 2 inherited the said land as the heir of Babulal and that the claim of Tilokchand that be was entitled to the said land as heir of Babulal being his adopted son was not tenable. The plaintiff averred that Tilokchand was not adopted by Lilabai as alleged by him and further that the alleged adoption was invalid. According to the plaintiff adoption of a brother to a brother was prohibited by Hindu Law. The plaintiff claimed a decree that the land objected to was liable to attachment and sale in execution of his decree against Lilabai.

(3.) THE defendant No. 1 Tilokchand contested the suit on the ground that he was the adopted son of Babulal having been adopted by Lilabai after the death of Babulal and as such he was entitled to the lands left behind by babulal as his heir. He denied that the adoption was invalid as alleged by the plaintiff and further contended that there was a custom in the community of the defendant No. 1 which permitted adoption of a brother. Lilabai defendant No. 2 remained ex parte. The trial Court held that the adoption was proved and that it was valid. The suit was, therefore, dismissed. On appeal by the plaintiff the appellate Court has held that adoption of Tilokchand to babulal by Lilabai was not proved and that such an adoption was not valid. The appellate Court, therefore, allowed the appeal, set aside the judgment and decree of the trial Court and has passed a decree in favour of the plaintiff that the lands objected were liable to attachment and sale in execution of the plaintiff's decree against defendant No. 2 Lilabai.