OM PRAKASH Vs. TARACHAND

JUDGEMENT

(1.) THIS special appeal by Om Prakash and others is directed against the judgment of Hon'ble the Acting Chief Justice dated October 23, 1975, whereby he upheld the decree for partition passed by the learned Additional District Judge, Churu in Civil Regular Suit No. 111 of 1968 on the ground that Tarachand was validly adopted son of Bhagirath.

(2.) TERSELY put shorn of unnecessary details the facts giving rise to this special appeal are that Khetaram had three sons, namely, Bhera Ram, Khuba Ram and Jairam. Jairam died issueless and Khubaram went in adoption to some other family. Bhera Ram had two sons : Bhagirath and Chhaganmal. Bhagirath died issueless. Chhaganmal had three sons : Tarachand Omprakash and Suryaprakash. It is alleged that Tara Chand went in adoption to Bhagirath in Samwat Year 1999, equivalent to year 1943 A.D. Tarachand filed the present suit against Chhaganmal, Omprakash and others for partition of the ancestral property and claimed one half share in that property on the ground that he was the adopted son of Bhagirath. In para No. 3 (Kha) of the plaint it was pleaded that defendant Chhaganmal had admitted Tara Chand to be validly adopted son of Bhagirath in Civil Regular Suit No. 260 of 1953 brought by Chhaganmal and Tarachand against the donee of Mst. Lichhmi, widow of Bhagirath.

(3.) LEARNED Counsel, appearing on behalf of the appellants, has challenged the judgment of the learned Single Judge on the following three grounds : Firstly, he has urged that there is no evidence on record worth the name to hold that Mst. Lichhmi had the authority to adopt a son after the death of her husband. This point was neither raised in the written statement nor it was argued before the trial court or the first appellate court. It is purely a question of fact and it cannot be allowed to be raised at this stage.