- (1.)This second appeal is by the three defendants against the judgment and decree passed by the Court below in favour of plaintiff/respondent No. 1.
(2.)The plaintiff filed a suit for declaration that the sale and mortgage-deeds executed by his adoptive father Ganpatsingh defendant No. 1, in favour of other defendants are not binding on him to the extent of his 1/3rd interest, partition of his share and possession together with mesne profits on the ground that on 18-4-1960 according to the caste custom he was given by his natural father Kalaya (PW.9) and taken by Ganpatsingh in adoption and also executed a registered deed of adoption (Ex.P.18). Plaintiff and Ganpatsingh also entered into an agreement that if the plaintiff repaid the outstanding dues of Rs. 3000/- he shall not transfer without plaintiff's consent any land belonging to him, which was reduced to writing Ex.P.15. Ever since then he started living with the adoptive father and mother. Later on Ganpat with intent to deprive the plaintiff of his rights as adopted son in his property executed a usufructuary mortgage in favour of defendants 5 and 6 on 29-10-1967 without any legal necessity in breach of S.165 of M.P.L.R. Code. He also executed a sale deed on 29-10-1967 which is illegal and inoperative to the extent of his 1/3 in it. The sale deed so also the mortgage deed were without consideration and his 1/3rd interest in the suit property is not affected by those transfers. He prayed for a partition, possession, permanent injunction restraining the defendants not to interfere with his possession and mesne profits from the date of suit till the delivery of possession @ Rs. 5000/- per year.
(3.)Defendant Ganpatsingh and his wife Ramkooverbai defendant No. 3 denied the factum as also validity of adoption, on the ground that no consent from the two wives, Jatibai defendant No. 2 and Ramkooverbai defendant No. 3 were taken. The plaintiff did not repay loan of Rs. 3000/- or any other amount nor Ganpat entered into any agreement with him undertaking not to transfer any property. The transfers made in favour of defendants 4, 5 and 6 are for consideration. The defendants also raised other objections which are not material for this appeal. Defendant 2 Jatibai did not file her written statement and was proceeded ex parte on 10-5-1968.