KUNDAN LAL Vs. MUKUNDI KUNWAR

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of considerable property, together with mesne profits, against several sets of defendants. The plaintiff's case was that one Maheshwar Dayal, son of Sri Kishen Das, was the last male owner of the property and died in the year 1895. On his death he was succeeded by his mother Musammat Gomti Kunwar, who died in 1903; and on her death his grandmother Musammat Darab Kunwar remained in possession till 1906 when she also died. On the death of this second limited owner the plaintiff claimed to succeed as Maheshwar Dayal's nearest collateral, alleging that he was connected with him through Jwala Datt, who was Harsukh Rai's daughter's son and was alleged to be his adopted son also.

(2.) The suit was instituted just within 12 years of the death of Musammat Darab Kunwar. In the plaint there was no express mention as to when the alleged adoption of Jwala Datt took place, nor was it stated whether he had been adopted by Harsukh Rai himself or by his widows after his death, and in the latter case, whether the widow had any authority to adopt. The plaintiff contented himself by simply stating that he was the heir of Maheshwar Dayal according to the genealogical table given in the plaint. By subsequent oral, pleadings the plaintiff asserted that Jwala Datt had been adopted after the death of Harsukh Rai by his widows with his authority, and that there was a custom among Vaish Agarwals to adopt a daughter's son.

(3.) Separate written statements were filed on behalf of various defendants. Musammat Makundi Kunwar and Musammat Eachchi Kunwar, defendants Nos. 1 and 2, pleaded that Nihal Chand and Sri Kishen Das had been joint, that Jwala Datt had never been adopted by Harsukh Rai's widows, nor had the widows any authority to adopt him, nor could an adoption of a daughter's son be valid. They further set up the adoption of Jai Bhagwan Sarup, defendant No. 3., thereby denying that the plaintiff was the nearest collateral. Jai Bhagwan Sarup, defendant No. 3, asserted that Musammat Lachchi Kunwar, the widow of Bisheshwar Dayal, had adopted him and thus he became the nearest heir of Sri Kishen Das or Maheshwar Dayal and would in any case exclude the plaintiff. He also pleaded that the plaintiff was estopped from denying his adoption and. urged that the claim was barred by time. Lala Faten Chand, defendant No. 4, filed a separate written statement in which he admitted generally the pedigree given in the plaint, with the exception of the existence of Maheshwar Dayal. He pleaded, inter alia, that no son qualified to inherit was ever born to Sri Kishen Das, and set up a will of Sri Kishen Das in favour of Musammat Gomti Kunwar and a subsequent will of Musammat Gomti Kunwar in his own favour. By a subsequent oral pleading he denied the validity of the adoption and the existence of the alleged custom. Defendants Nos. 5--7 in addition set up their claim as bond fide purchasers for value from ostensible owners.