KARTAR SINGH AND ANOTHER Vs. BHAG SINGH

JUDGEMENT

(1.) This second appeal is directed against the concurrent decision of the Courts below dismissing plaintiffs suit.

(2.) The plaintiffs are the collaterals of the last maleholder, Sunder Singh. The defendant claims to be the adopted son of Sunder Singh. He is the son of the Natha Singh. The trial Court held that Sunder Singh had adopted Bhag Singh defendant and in this view of the matter dismissed the plaintiff's suit for possession of the property left by Sunder Singh. On appeal, the learned Senior Subordinate Judge reversed the finding of the trial Court as to the factum of adoption. On consideration of the evidence, the learned Senior Subordinate Judge came to the conclusion that, in fact, the defendant had not been adopted by Sunder Singh. In support of this finding, the learned Judge relied upon Exhibit 'P.9' a registered will executed by Sunder Singh in favour of the plaintiffs. In case, as alleged by the defendant, he had been adopted, there was no reason why Sunder Singh would have made the aforesaid will. Moreover, after the death of Natha Singh, the natural father of the defendant, he succeeded to his estate. If the defendant had been adopted by Sunder Singh, he would not have succeeded to his father's estate. Another fact, that was taken into consideration was that the defendants mother did not appear in the witness-box. In any case the finding that there was no adoption, to support the case of adoption of the defendant by Sunder Singh, being a finding of fact and being based on evidence, is binding on me in second appeal. It may be that on appreciation of evidence, this Court may have taken a different view. But that is no ground for interference in second appeal. After recording this finding the learned Judge proceeded to dismiss the appeal because he was of the view that the deed of adoption would operate as a testamentary disposition of property and, therefore, even if there was no adoption, the defendant would take under that deed - the deed being treated as a will. It is this finding of the learned Judge which has been vehemently contested by Mr. H.S. Gujral, learned counsel for the plaintiff-appellants. He basis himself on the decision on the Privy Council in Lali v. Murlidhar,1906 28 AIR(All) 488. This decision was considered in Ishar Singh v. Surat Singh, 1924 AIR(Lah) 103, and Shadi Lal, Chief Justice, while dealing with this case, observed as follows :-

(3.) For the reasons recorded above, I allow this appeal, set aside the judgments and decrees of the Courts below and decree the plaintiff's suit. There will be no order as to costs.