KISHEN SINGH Vs. TARU

JUDGEMENT

(1.) The dispute out of which this appeal has arisen relates to the inheritance of Mahain Singh who owned a 1/6 share in 354 kanals and 12 marlas of land situate in village Ohogwan Rupowali and 1/6 share in 244 kanals 15 marlas situate in village Chowinda. He died in the beginning of the year 1943 and the mutation in respect of the land left by him was sanctioned on 20 January 1944 in favour of Taru defendant 1 as the adopted son of the aforesaid Mahain Singh. The plaintiffs who are collaterals of the deceased Mahain Singh in the second degree instituted a suit on 4 April 1944 for possession of 1/8 share of the lands in the two villages on the allegations that Taru defendant 1 was not the adopted son of Mahain Singh and that he was not entitled to succeed to the property left by the said Mahain Singh in preference to themselves. The land left by Mahain Singh was alleged to be ancestral qua the plaintiffs. The suit was resisted by Taru, defendant 1, on a number of pleas, on which the following issues were framed by the trial Court: 1. Whether defendant 1 is validly adopted son of Mahain Singh deceased? 2. If issue 1 is decided in favour of the defendant 1, is the land in dispute ancestral qua the plaintiffs? 3. If issue 2 is decided in favour of the plaintiffs is the suit within time? 4. If issue 2 is decided in favour of the plaintiffs was Mahain Singh competent to adopt? 5. If the above issues are decided in favour of the plaintiffs what is their share in the land in dispute? 6. Whether the plaintiffs are estopped from suing by their conduct? 7. Relief. The trial Court found that Taru was "adopted by Mahain Singh deceased during the former's infancy and in the presence of the brotherhood. On the second issue, it was held that the land situate in village Chogwan Rupowali was ancestral, but that the land situate in village Chowinda had not been proved to be ancestral qua the plaintiffs. The trial Court further held that the suit to contest the factum as well as the validity of the adoption was barred by limitation. The fourth issue was decided in the defendant's favour. The trial Court did not give any decision on the fifth and the sixth issues and in the result, the plaintiffs suit was dismissed.

(2.) On an appeal by the plaintiffs, the learned District Judge held that even the land situate in village Chowinda had been proved to be ancestral qua the plaintiffs. He further held that the alleged adoption of Taru by Mahain Singh during the former's infancy had not been proved and that the deed of adoption executed and registered on 10 October 1941 by itself was insufficient to constitute Taru the adopted son of the deceased. The decision of learned trial Judge on the question of limitation was also reversed and it was held that in view of the decision on the question of the factum of adoption, the question of limitation did not arise. The plaintiffs were found entitled to a 3/5 share in the inheritance of Mahain Singh and in the result their appeal was accepted and they were granted a decree for possession of a 1/10 share in the two holdings which amounted to a 3/5 share of Mahain Singh's 1/6 share in the aforesaid holdings.

(3.) Taru defendant 1, came up in second appeal to the High Court and the sole question that arose for determination in the second appeal was whether the appellant's adoption by Mahain Singh had been proved. The learned Single Judge came to the conclusion that Mahain Singh deceased did intend to appoint the appellant as his heir and that such intention had been quite unambiguously and unequivocally manifested by him by executing and registering the deed D. 1 and by his treatment of the appellant as his son. He accordingly, allowed the appeal and set aside the judgment and decree of the learned District Judge and restored the decree of the trial Court dismissing the plaintiffs suit.