GULAB Vs. DEVILAL GOKAL CHAND

JUDGEMENT

(1.) THE resp. brought a suit for a declaration that he was the adopted son of one Motilal Mahajan of Bijoliyan & for an injunction that the applt. & Mt. Motiya Bai be restrained from wasting the property of Motilal. He alleged in his plaint that Motilal called him from his village Dhangao in Asoj St. 1995, & kept him as an adopted son & that after Motilal death he performed all the rites & ceremonies relating to his (Motilal) death. THE defts. denied the factum as well as the validity of the alleged adoption. THE learned munsif Bijoliyan who filed the case came to the conclusion that the adoption was in fact made & it was valid according to the custom prevailing among the Jains to which religion Motilal & the parties belonged. He consequently decreed the suit against both the defts. On appeal the learned Dist. J. , Bhilwara modified the decree in that he disallowed the relief for injunction & refused declaration as against Mt. Motiya Bai. So fat as the applt. is concerned, the decree for declaration was confirmed. Against the decree of the learned appellate Ct. the deft. Gulab Bai has coma in appeal to this Ct.

(2.) THE points raised on behalf of the applt. against the judgment of the appellate Ct. are that the pltf. has not alleged in his plaint that the adoption was in fact made by Motilal & there is also no evidence to this effect, & that it has neither been alleged nor proved what ceremonies were necessary to validate the adoption & that they were performed. On behalf of the resp. it has been urged in the first instance that the finding of the lower appellate Ct. about adoption is a finding of fact & cannot be disturbed in S. A. It has also been contended that the parties are Jains & therefore no particular ceremonies were necessary to validate the adoption. Reliance was placed on Sections 617 & 624 Mulla's Hindu Law, Edn, 10. the following rulings were also cited : (a) Moroti v. Radha Bai, A. I. R. (32) 1945 Nag 60 : (I. L. R. (1944) Nag. 796) (b) Ram Kishore v. Jai Narayan, A. I. R. (9) 1922 P. O. 2 : (48 I. A. 405 P. C.) (c) Pannalal v. Chiman, A. I. R. (34) 1947 Lah. 54 : (225 I. C. 8) (d) Subramaniam Chettiar v. Soma Sundaram, A. I. R.-23 1936 Mad. 642 : 59 Mad. 1064 (e) Chimanlal v. Hari Chand, 40 Cal. 879 : (40 I. A. 157 P. C) (f) Parshottam v. Veni Chand, 45 Bom. 754 : (A. I. R. (8) 1921 Bom. 147) (g) Biradh Mal v. Prabhavati, A. I. R. (26) 1939 P C. 152: (I. L. R. (1939) Kar. 258) (h) Dhanraj v. Soni Bai, A. I. R. (12) 1925 P. O. 118 : (52 Cal. 482 ).