NANDKISHORE Vs. BRIJBEHARI

JUDGEMENT

(1.) THIS is second appeal by Nandkishore and Mst. Birji against the judgment of the District Judge, Kotah, of the 31st of October, 1949, by which the judgment and decree passed by the court of the Civil Judge, Kotah, on the 30th of September, 1947, were set aside and the suit of the plaintiffs was decreed for possession of the disputed property with costs.

(2.) A suit was filed by Mst. Ramnathi as next friend of her two minor sons Brijbehari, and Bhawani Shanker against Nandkishore and his wife Mst. Briji in the court of the Sub-Judge, Kotah, for recovery of possession of a house of which the details were given in the plaint and which belonged to one Sheonarain who was an uncle in relationship to the plaintiffs. After the death of Sheonarain in January, 1944 his widow Mst. Surja Bai inherited his property as limited owner. She died on the 11th of March, 1945 and after her death Mst. Briji and her husband Nandkishore took possession of the properties left by her in pursuance of a will executed by her during her life time in favour of Mst. Briji. It was claimed by the plaintiffs that as they are the heirs of Sheonarain they are entitled to inherit the property left by Sheo Narain on the death of his widow. The plaintiffs therefore prayed for a decree for possession of the house left by Sheonarain at Kotah. It was also alleged that Srikishan, father of Briji, was also related to the deceased Sheo Narain by blood but he had gone in adoption to another family at Jhalawar and his relations with the deceased had therefore been severed. The genealogical table of Sheonarain's family was stated to be as follows: - Ganesh alias Bakshuram Onkar Gordhan Sheonarain Srikishan (Went in adoption to Mannalal at Jhalawar) Badri | | Nathi Briji Brijbehari Bhawani Shanker Mt. Briji has been married to Nandkishore defendant No. 1.

(3.) ALL these points have been throughly dealt with by the learned lower appellate court in discussing the value of the statement of this witness. Srikishan is an interested witness and the evidence of Ramchandra cannot be discarded simply because it is contrary to the statement of Srikishan. It is true that the present of Gopal Dutt and Prabhu Dayal has been mentioned by Ram Chandra at the adoption ceremony and both these witnesses have not admitted their presence but have only stated that they heard that the ceremony took place. After a lapse of 45 years it should not be considered unnatural that a witness may not remember certain details relating to the occasion. This circumstance is not such as would render the entire statement of Ramchandra false. Prabhudayal who has given his age as 70 years stated that he could not attend the adoption ceremony because he was a child. This statement however does not appear to be correct. The adoption ceremony at the most had taken place about 45 years before he was examined as a witness and taking his age to be of 70 years as stated by him at the time of his examination he should have been of 25 years when the adoption ceremony took place. His statement that lie was only a child at the time of Srikishan's adoption is therefore obviously false. The relationship of Ganga to the plaintiffs' mother cannot necessarily be taken to influence Ramchandra. These points were throughly considered by the lower appellate court in coming to the conclusion that the evidence of Ramchandra was reliable. It is not disputed that Srikishan was taken to Jhalawar by Kunwara Bai for giving him in adoption to Mannalal and that throughout his life he was taken to be the son of Mannalal at Jhalawar. In filing a suit in a civil court and in a case of mutation proceedings in a revenue court he had described himself as a son of Mannalal. He also got an employment in Jhalawar State for the reason that he was considered to be the adopted son of Mannalal. ALL these circumstances were considered in favour of the validity of his adoption which was now being disputed by one of his daughters after a lapse of about 45 years.