PUNAMCHAND Vs. KANHYALAL

JUDGEMENT

(1.) THIS is a second appeal from the decision of the learned District Judge of Churu dated the 23rd July, 1948.

(2.) THE appellant, Punamchand, was the defendant in the suit. THE plaintiff respondent, Kanhyalal, is his brother's son. On the nth February, 1947, the defendant appellant executed a deed of Khola, stating that he had taken Kanhyalal as his Kholayat, that is, as his adopted son, and had it registered. On the 29th March, 1947, Punamchand executed a deed, which he described as Ibtalnama, and purported to cancel thereby the Khola deed of the nth February, 1947. This deed also was registered. Kanhyalal, who was a minor, thereupon brought a suit, with his mother Mst. Rukma as his next friend, and prayed for a declaration that the Ibtalnama was null and void and was not effective for the purpose of cancelling the Khola deed. He had also asked for a decree granting a perpetual injunction restraining the defendant from encumbering and transferring the family property. THE Munsiff dismissed the suit on the ground that the Khola had not been acted upon. THE decision was based on the ground that the plaintiff was not present at the house of the defendant at the time of the execution of the Khola deed and that he had not come to live with the defendant upto the 29th March, 1947, when the Ibtalnama was executed. THE Munsiff had placed reliance on the case of Ganesha v Sasi Ram, reported in 19 B. L. R. at page 19. THE plaintiff appealed and the, learned District Judge reversed the Munsiff's decree and granted a declaration to the plaintiff to the effect that he was the Kholayat (adopted son) of the defendant and that the Ibtalnama, which the defendant had executed on the 29th March, 1947, was null and void. THE learned judge placed reliance on a later ruling of the Bikaner High Court in the case of Kripalsingh v Sarjitsingh which was decided on the 30th September, 1947. THE defendant has accordingly filed this second appeal.