KRUSHNA KAHALI Vs. NARANA KAHALI

JUDGEMENT

(1.) In a suit for partition the question whether the original appellant Krushna (since deceased and substitute by his legal heirs) was adopted son of one Bhramar Kohali arose for consideration. Plaintiffs-respondents Nos. 1 and 2 resisted the claim made in that regard by Krushna (defendant No. 2). Non-acceptance of the plea of adoption by the trial Court has brought the claimant before this Court.

(2.) The only question that needs answer in this appeal is whether the claim of adoption as raised was acceptable. For answering this question a brief reference to the respective averments is necessary. The undisputed genealogy is as follows : The plaintiffs prayed for partition of the suit properties claiming 2/9ths share in Schedule 'A', 1/3rd share in Schedule 'B'and 2/3rd share in Shedule 'C' properties. Krushna (defendant No. 2) claimed that he was adopted by Bhramar since his childhood in the year 1929, and was therefore entitled to half share in Schedule 'A' and Schedule 'B' properties along with the plaintiffs and defendant No. 1, defendants 3 to 5 are entitled to the remaining half share in Schedules 'A' and 'B' properties; plaintiffs and defendant No. 1 are jointly entitled to half share in Schedule 'C' properties and the balance half share belongs to him. He disputed the contention of the plaintiffs that defendant No. 1 became invalid in 1940 due to shark bite and was dependent on defendant No. 2 for management of the properties left by Bhramar. The stand of defendants Nos. 3 to 5 was defendant No. 2 is the son of Bhramar and not of Madhu. In other words they opposed the plea of adoption set up by defendant No. 2. Defendants Nos. 7 to 9 supported the case of the plaintiffs and they disputed the plea of adoption set up by defendant No. 2. Defendant No. 10 is a purchaser of a portion of the suit properties from defendant No. 1 and has supported the claim of the plaintiffs. It is not disputed by the contesting parties that at the point the appellant claims to have been adopted by Bharmar, there was a living son of Bhramar named Anant (defendant No. 1). During pendency of the appeal, appellant Krushna having died was substituted by his legal representatives. During pendency of the suit Anant had died. As indicated above, the sole point for determination is whether Krishna's adoption was valid in view of the undisputed position that at the time the alleged adoption took place Bhramar had a living son. On behalf of Krushna it was pleaded that though in law such an adoption is prohibited, yet by custom it was permissible. For adjudication of the dispute, I feel the following two questions emerge for consideration.

(3.) It would be desirable to refer to certain provisions of the Act, and the Hindu Code which governed the field prior to the enactment of the Act. S. 3(a) of the Act defines 'custom' as follows :