HARIBHAU S/O. GANPATRAO Vs. AJABRAO RAMJI INGALE

JUDGEMENT

(1.) THE plaintiff who is the principal appellant before us, Kisanrao, appellant 2, being only a transferee, brought a suit for partition, claiming to be the adopted son of Ganpatrao, against Ramji, Ganpatrao's elder brother, who was the manager of the joint family consisting of Ramji, his son Ajabrao, his grandson Tulshiram, and Ganpatrao and the plaintiff. Ramji died during the pendency of the suit which was continued against his son, his grandson and his widow Bhimabai, who were already on the record. Associated with the plaintiff was his adoptive mother Radhabai, plaintiff 2; the adoptive father Ganpatrao had died in 1927.

(2.) IN resisting the claim for partition the defendants pleaded that the adoption was invalid for two reasons, first that Mt. Radhabai was incapable of making an adoption in 1939 as she had remarried one Laxman before that date. The other ground was that Mt. Mirabai who gave the plaintiff, Haribhau, in adoption was not his mother but his step-mother and consequently was incapable of giving Haribhau in adoption and as Haribhau's father had died long before, he was an orphan who could not in Hindu law be given in adoption. As regards the first, point, the alleged marriage of Mt. Radhabai with Laxman, the objection by the defence failed both in the trial Court and in first appeal. In respect of the second point, the trial Court held on a detailed analysis of the evidence that the defendants' objection failed in this respect also, that Mirabai was actually Haribhau's mother and that Haribhau was not the son of an earlier deceased wife of his natural father Domaji. In appeal, however, the learned District Judge of Amraoti held, also after an analysis of the evidence, that Mirabai was not Haribhau's mother and that he was in fact the son of Domaji by an earlier wife Mt. Sarji, who had died in October 1911, some two years after the plaintiff's birth.

(3.) THAT there was an adoption ceremony in 1939 has been established and is not disputed. The finding of the lower appellate Court that the plaintiff Haribhau is not the son, but is the step-son of Mt. Mirabai is a finding of fact, and a finding of this nature, as has been repeatedly held in this Court, is not open to challenge in second appeal. The argument advanced as to the burden of proof, namely, that it should, once the factum of the adoption ceremony was established, be shifted, as to the capacity of Mt. Mirabai to give in adoption, on to the defendants is not valid. As remarked by the learned District Judge, adoption, which disturbs the natural succession to property, must be proved by very strict evidence and a very heavy onus lies on him who tries to divest the natural heir. The question too is academic inasmuch as all the evidence was before the Court, and the plaintiff led evidence, which the lower appellate Court has not accepted, in an attempt to establish that Mirabai was the plaintiff's actual mother. Objection was also taken to the fact that the plaintiff was not allowed to call for the original Kotwar's book in which the death of Mst. Sarji, who was alleged by the defendants and who was found by the lower appellate Court to be the plaintiff's mother. This contention is of no value since the lower appellate Court itself called for the book in question, examined the entry and found it to be a genuine entry, and also found that the book had been in the custody of the Tahsil record room for many years before the plaintiff's adoption and there was no possibility of a fraudulent entry by the defendants after that date.