KANAIYALAL AND JAMNADAS Vs. GAURISHANKAR

JUDGEMENT

(1.) THE only point arising for decision in this second appeal by the plaintiff, who has failed in both the lower courts is whether the adoption of the defendant Gaurishanker to Bakshi Ram by the latter's widow Smt. Janki is proved? It is the admitted position of the plaintiffs that if Gaurishanker's adoption to Bakshiram is establish d, they have no case. But their contention is that Gaurishanker's adoption to Bakshiram by Mst. Janki has not been proved according to law.

(2.) IT is not disputed before me that Mst. Janki had executed an adoption deed (Kholanama) in favour of Gaurishanker as the adopted son to her deceased husband Bakshiram and this adoption deed (Ex. A. 1) contains an unequivocal declaration by Mst. Janki that she had adopted Gaurishanker to her deceased husband Bakshiram.

(3.) IT may be observed that the defendant had specifically stated in para No. 11 of his written statement that he is a 'Kholayat' son of Bakshiram and that a 'Kholanama' dated 27 -5 -1955 was executed and got regitered on 28 -5 -1955. The trial court struck an issue with respect to this contention which is issue No. 2 and which reads as follows; (2) Whether the defendant is a valid 'Kholayat' of the deceased Bakshiram This system of 'Khola' appears to be well known in Bikaner and has received judicial recognition. In these circumstances it cannot be said that the plaintiffs have been prejudiced in any way in absence of specific mention of the customary 'Kholayat' system in the written statement by the defendant. Moreover no such objection was taken either before the trial court or before the first appellate court that the defendant was not entitled to rely on the customary adoption known as 'Khola' on account of the absence of pleading to that effect in the written statement. In these circumstances no case is made out for rejecting the defendant's claim as the adopted son of Bakshiram solely on the ground that the pleading on the point is not exact and specific.