PRABHULAL Vs. RATAN SINGH

JUDGEMENT

(1.) THIS is an appeal by the defendant Prabhumal against the judgment of the Civil Judge, Jodhpur, dated the 22nd September, 1952, in a suit for declaration.

(2.) THE following pedigree table will explain the relationship of the parties. Bagh Singh Tikam Singh Brijlal Singh Rampratap Singh Damodar Singh (Widow Laxmi Bai Deft. No. 2) Rajpal Singh Bachraj Singh Shivlal Singh Shankarlal (Mst. Narbada Bai Widow Deft. 4) Ratan Singh (Plaintiff) (Mst. Jiji Bai (Widow Deft. 5) (Widow Mst. Kashi Bai Deft. 3) Bapulal (Deft. 6) Raghuwar Pd. (Deft. 7) Dalpat Singh Jagannath Singh Prabhulal (Deft. 1) Himmat Singh Dalpat Singh, Himmat Singh and Jagannath Singh (respondents No. 7, 8 Bapulal died during the pendency of the suit and is represented by his sons and 9 ).

(3.) LEARNED counsel for the appellant invited our attention to the decision of the Cine; Court of the former State of Jodhpur, dated the 18th March 1916, in Vakil Thikana Mudiyar vs. Widow of Ramnath Singh. The parties in that case were Charans. The widow of Ramnath Singh adopted one Chimansingh and the plaintiff challenged his adoption on the ground that the adoption had been made from outside the Muris-ala line. The defendants appear to have contended by virtue of an earlier judgment of the Chief Court, dated the 9th July, 1886, that the rule of Muris-ala did not apply to Charans. The learned Judges repelled this contention and held that the rule of Muris-ala was applicable to holders of Sansan or charitable grants from the State. While discussing some of the cases in this connection, they referred to a case relating to the community of Charans in which it appears to have been held that among Charans it was not necessary to adopt a near relation or to reject a distant one. " LEARNED counsel for the appellant places his reliance on this observation in the certified copy of the judgment in the Vakil Thikana Mudiar case, and asks us to hold on the strength of this observation that the adoption of Prabhulal in the presence of a nearer relation Ratan Singh in the case before us is valid. We are afraid we cannot accede to this argument. In the first place the judgment of the Chief Court wherein the observation relied on occurs has not been brought to our notice and a mere reference thereto in the judgment in the Mudiar case is and can be no justification for us to accept the view that among holders of charitable grants such as Charans or Raos to which community the parties before us belong, the Jagirdar Adoption Rules do not apply. Nor are we informed as to the reasoning on which such a view was or could be based. As to the judgment in the Mudiar case, the point for decision simply was whether an adoption among Charan Jagirdars was or was not subject to the rule of Muris-ala and it was held that it was. This decision, in our opinion, is and can be no authority for holding that in the community of Raos, to which the parties in the present case belong, the general rule applicable to Jagirdars which excludes the adoption of a remote heir in the presence of a nearer one is not applicable.