Decided on May 17,1935



Thankerton, J. - (1.) THESE are consolidated appeals from four decrees of the High Court of Judicature at Allahabad, dated January 16, 1929, which substantially reversed a decree of the Additional Subordinate Judge of Meerut, dated March 2, 1925.
(2.) THE property in suit is the Sahanpur estate, situated in the District of Meerut, and the last male holder was Kunwar Khushal Singh, a Hindu Jat, who died on August 6, 1879, leaving surviving him a widow, Rani Raghu-bir Kunwar, who died on November 24, 1920. THE present suit was instituted on May 1, 1923. The right of succession to the estate lies between the plaintiff-appellants Nos. 1 to 5, who are now admitted to be the nearest; reversioners, and the original respondent in the leading appeal, Kunwar Brijraj Saran Singh, defendant No.1 in the suit, who is now deceased, and whose representative is now respondent, Defendant No.1 was in possession, and claimed as adopted son under an adoption made by the said Rani on April 13, 1903. The fact of the adoption is not disputed, but its validity is challenged by the appellants, and this forms the main issue in the appeal. The remaining plaintiffs and defendants claim under rights derived from plaintiffs Nos. 1 to 5 and defendant No.1 or Rani Raghubir Kunwar respectively, but no separate question arises as to their lights, unless the appeal succeeds. The validity of the adoption of defendant No.1 is challenged in respect of (1) the widow's authority to adopt, and (2) the fact that defendant No.1 was an orphan at the time of his adoption.
(3.) KHUSHAL Singh was the adopted son of Raja Nahar Singh of Ballabgarh in the Delhi District, at that time in the North Western Provinces. Nahar Singh joined the mutineers during the mutiny and was hanged ; his estate was confiscated in 1858 by the Government, who granted allowances to his dependants on condition that they left their home. KHUSHAL Singh migrated to Kuchesar, a large estate in the Bulandshahr and Meerut Districts, and married Bhup-Kunwar, the daughter of Gulab Singh, the last male, owner of that estate. On the death of Bhup Kunwar about 1859, there: was litigation amongst various claimants to the estate, including KHUSHAL Singh, which ended in a compromise, which was recorded in a decree dated May 29, 1868, and under which a five anna share was carved out of the estate and allotted to KHUSHAL Singh and was thereafter known as the Sahanpur estate, the succession to which is now in dispute. After the compromise KHUSHAL Singh married Rani Raghubir Kunwar, who was the daughter of Umrao Singh, to whom a six anna share had been allotted under the compromise which retained the name of the Kuchesar estate. The remaining five anna share went to one Partab Singh, and is known as the Muhiuddinpur estate. It is alleged that on July 26, 1879-eleven days before his death- Khushal Singh executed a will, under which, by paragraph three, he gave authority to his widow to adopt a boy, in the event of his having no son or adopted son living at his death, in accordance with the custom prevailing among the Jats, in the first place from the family of the present rais of Kuchesar, in the second place a descendant of Rao Maharaj Singh, resident of Muhiuddinpur, and in the event of this being impossible, in the third place, any boy belonging to the brotherhood. She should bring up the boy, educate him and perform his marriage. From the time of adoption that son shall be like the begotten son of my wife and me. But when a boy of one family has been adopted, a boy of another family shall not have any right to urge his claim for being adopted. That authority is in terms narrated in the deed of adoption of defendant No.1 of April 13, 1903. The original will has not been produced, but a copy has been produced, which was made in 1897, under circumstances which will be referred to later.;

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