NARAYAN LAL MAHTHA Vs. BULAK LAL CHAUDHARY

JUDGEMENT

(1.) This appeal arises out of a suit for partition between members of a Gayawal family of Gaya governed by the Mitakshara School of Hindu law. Plaintiff 1 Bulak Lal Mahtha who is the father or grandfather of the remaining plaintiffs is the younger uterine brother of defendant 1 Narayan Lal Mahtha who is the father or grandfather of the remaining defendants. The plaintiffs claim half-share in the disputed properties mentioned in Schedules B,C and D of the plaint, which, they say, are the joint family properties of themselves and the defendants. The suit was contested by defendant 1 alone, his defence being that plaintiff 1, though his uterine brother was adopted into another family and that he (defendant l) has been in adverse possession of the disputed properties. The learned Subordinate Judge, overruling these defences, has decreed the suit. Hence this appeal by defendant 1.

(2.) The only question raised in this appeal is that of adoption. One Damaji Hall had three sons--Ganga Bishun, Radha Kishun and Hira Lal. Radha Kishun was adopted into a Mahtha family and was known as Radha Kishun Mahtha. Narayan Lal (de, fendant l) and Bulak Lal (plaintiff l) are the sons of Radha Kishun Mahtha. Hira Lal is said to have been adopted into a Choudhuri family and was known as Hira Lal Choudhuri, though it appears that he got the properties both of his natural and adoptive families. According to the defence Bulak Lal was adopted by the said Hira Lal Choudhuri some time in 1887 during the lifetime of Radha Kishun who died in 1889. The adoption is said to have been in the usual Dattaka form. Both oral and documentary evidence has been adduced on both sides. But considering the fact that the adoption is said to have taken place about 47 years before the trial of the suit, it will not be safe to act upon the oral evidence. I shall therefore confine myself primarily to the documentary evidence.

(3.) The earliest document in support of the adoption is Ex. A, a registered deed of gift dated 30 November 1905, executed by Hira Lal Choudhuri in favour of Bulak Lal. It recites that about 18 years ago the executant Hira Lal having no son asked his brother Badha Kishun to give his second son Bulak Lal in adoption to him and accordingly Radha Kishun and his wife gave Bulak Lal in adoption to him and since then he brought up Bulak Lai as his own son and performed his churakaran (tonsure), janeu (sacred thread) and marriage ceremonies. By this deed, Hira Lal gave away to Bulak Lal the properties mentioned therein including the books relating to his Jatri business. The deed further recites that the said Babu Bulak Lal Mahtha shall get his feet worshipped by all the Jatris of me, the executant, for which I have given him the right under this deed, in place of me, the executant. He should bring into his own use whatever offerings and property he would get from the Jatris.