BANSILAL SHANKARLAL Vs. SHANKARLAL RAMLAL

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. Defendant 1 is the natural son of defendant 2. The plaintiff alleged that he took defendant 1 in adoption as a son on 22nd February J 920, but defendant 3 had been denying this fact and giving out that he had adopted defendant 1 as a son to her deceased husband on 18th May 1926. The plaintiff therefore originally sued for a declaration that the adoption dated 18th May 1926, if any, be declared to be void and illegal and not binding on the plaintiff and defendant 1.

(2.) LATER on the plaintiff applied for amendment of the relief which was allowed and claimed that it be declared that the plaintiff is and continues to be the adoptive father of defendant 1.

(3.) ON the contrary it has been held in several cases that a suit for a declaration that a person is or is not the adopted or the natural son of a particular individual is always maintainable under Section 42, Specific Relief Act: Chinnasami Mudaliar v. Ambalavana Mudaliar (1906) 29 Mad 48 and Bai Shri Vaktuba v. Agarsinghji Raisingji (1910) 34 Bom 676. The present case is the converse of Chinnasami Mudaliar v. Ambalavana Mudaliar (1906) 29 Mad 48. In the Madras case the plaintiff claimed a declaration that the defendant was not his adopted son, while in the present case the plaintiff virtually claims a declaration that defendant 1 is his adopted son by formally claiming himself to be defendant 1's adoptive father. Agreeing with the two Courts below then I hold that the suit as laid is maintainable. The second contention advanced for the appellants that there is no finding by the lower appellate Court that as a matter of fact there was giving and taking so as to make the adoption of defendant 1 by the plaintiff valid in law. It is however conceded that there is evidence on this point on the record. It was not expressly pleaded by the contesting defendants that there was no valid giving and taking of defendant 1. Nor was the validity of the adoption by the plaintiff of defendant 1 expressly challenged on this ground, in the grounds of appeal before the lower appellate Court. The finding of the lower appellate Court that the plaintiff's evidence proved the adoption of defendant 1 by the plaintiff is therefore perfectly valid. It was lastly urged that the decreed passed in favour of the plaintiff by the trial Court and confirmed by the lower appellate Court goes much beyond the amended relief claimed by the plaintiff in that it also declares the adoption of defendant 1 by defendant 3 invalid. Although this objection is only technical it is undoubtedly valid and must be upheld; the words "and the adoption of defendant 1 by defendant 3 is illegal and void" will therefore be deleted from the first Court's decree Except for this modification the decrees of the two Courts below are confirmed and this appeal dismissed with costs.