SUKHBIR SINGH Vs. MANGEISAR RAO

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of a house situated at Hardwar which has been acquired by the plaintiff under a sale- deed, dated 27 October 1914, from one Madho Rao. The plaintiff's case is that this house, along with certain jagirs situated in the Gwalior State belonged to one Nil Kanth Rao who died sometime before 1913. His widow, Mt. Anandi Bai, with permission of the Darbar, adopted Madho Rao as her son. It is an admitted fact that at the time when Madho Rao was adopted namely in 1913, he was a married man having several children and his parents were dead. He, therefore, either gave himself in adoption or he was given in adoption by the prohit who performed the ceremonies. Among the contesting defendants was Ganga Prasad who is in actual possession of the house and who denied the validity of the alleged adoption. Defendant No. 5 is Mt. Anandi Bai, who has since this adoption repudiated it and adopted another son. Defendants 1, 2 and 3 are sons of Madho Rao who has since died.

(2.) The learned Subordinate Judge, after considering the entire evidence in the case, came to the conclusion thai it had not been established that there was a custom under which an orphan like Madho Rao could have been validly adopted. He has accordingly dismissed the suit. The plaintiff comes up in appeal and the question of custom is strongly pressed before us.

(3.) It may be mentioned at the outset that prior to the institution of the suit the plaintiff had first instituted another suit on the basis of the aforesaid sale-deed for possession of this very house. In the plaint of that suit there was no clear mention as to the way in which Madho Rao had succeeded to the estate of Nil Kanth Rao. It was therefore, felt that the plaint was defective. On 1 June 1916 an application was made for permission to withdraw that suit on account of the flaw with liberty to bring a fresh suit. This permission was granted and the suit withdrawn. It might therefore have been expected that the present plaintiff, before filing his new plaint would take care to formulate the alleged custom which is the basis of his claim. The only paragraph in the present plaint which mentions this custom is paragraph 2 which states that Defendant No. 5 namely Mt. Anandi Bai, "according to the practice in the Gwalior State and with the permission of the said State" adopted Madho Rao, and by virtue of which he became the owner of and entitled to the estate of Nil Kanth Rao. This statement amounts to an assertion that there is a territorial custom prevailing in the Gwalior State not necessarily confined to any particular family and that in addition thereto the permission of the Darbar has some efficacy. The issue which was framed by the trial Court on this question was Issue No. 2 which ran as follows: What is the custom or law of adoption obtainable in Gwalior State?