HARI DAS MINOR Vs. LACHHMI
HIGH COURT OF HIMACHAL PRADESH
HARI DAS MINOR THROUGH BALAK RAM AS HIS NEXT FRIEND
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Chowdhry, J.C. -
(1.) This is a second appeal by the minor plaintiff Hari Das through his natural father Balak Ram as his next friend. Dhani Ram made a gift of his property to Jiwanu and Moti Ram. A report for mutation of this gift was made by the Patwari on 14-7-1948 and, despite the objection of Balak Ram on behalf of the minor, sanctioned on 2-8-1948. The present suit was then filed against the donor and the donees on .18-6-1949 by the minor, claiming to be an adopted son of the donor Dhani Ram, and alleging the property to be ancestral, for a declaration that the gift is invalid and ineffectual against the interests of the plaintiff. The adoption was alleged to have taken place on 28-1-1946.
(2.) The plaint mentioned both the Hindu Law and custom. One of the issues framed by the trial Court therefore was: Are the parties governed in the matter of succession and alienation by custom, and if so, what is that custom, and what is its effect on the suit? The matter in respect of which custom had been pleaded was adoption, and therefore the issue was wrong in omitting adoption and mentioning succession and alienation. That is, however, immaterial since in spite of the said mistake the parties produced evidence in regard to adoption. The trial Court came to the conclusion that as no rule of custom prescribing any special ceremonies for adoption different from those laid down by the Hindu Law had been proved, the case must be decided according to the provisions of the Hindu Law. According to the Hindu Law the ceremony of giving and taking was necessary, but there was no evidence to that effect on behalf of the plaintiff. The trial Court held that the oral evidence produced on behalf of the plaintiff was not reliable, but that even if it be held to be reliable the plaintiff had, in the absence of proof of the necessary ceremony of the physical act of giving and receiving, failed to prove that he was the adopted son of Dhani Ram and dismissed the suit. During the pendency of the suit in the trial Court Dhani Ram died and his widow Mt. Lachchmi was brought on the record as his legal representative. She adopted the joint written statement which her husband had filed along with the donees. Hari Das minor through Balak Ram as his next friend vs. Mt. Lachhmi and Ors.
(3.) The plaintiff went up in appeal, but the District Judge dismissed the appeal. He did not go into the question of whether custom or the Hindu Law should govern the case, but held that the suit was liable to dismissal in either case since, if it was governed by the Hindu Law, the plaintiff had failed to prove the essential ceremony of giving and receiving, and, if by custom, he had failed to prove permission of the Koti State which, according to him, was a condition precedent to adoption, in view of the terms of the Wajibularz recording the custom.;
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