HEGDE, - (1.) THE Judgment of the Court was delivered by
(2.) IN this appeal by special leave though number of contentions were taken, we have not thought it necessary to go into all of them as in our judgment High court's conclusion that Shyam Behari Lal (1st defendant) had been validly adopted by Gopal Das is well-founded. The suit from which this appeal arises is for possession of the suit properties on the basis of title. The 1st plaintiff Debi Prasad claims title to the properties as the nearest heir to Gopal Das, his maternal uncle who died in 1934. The 2nd plaintiff is an alianee from the 1st plaintiff. In order to properly understand the controversy in the present case, it is necessary to have before us the family pedigree. The admitted pedigree is as shown below : JUDGEMENT_677_1_1970Image1.jpg 680
(3.) THE common ancestor of the family, was Lajja Ram who died in 1874.We are now concerned with the branch of Kedar Nath, the father of GopalDas who died on 18/02/1934. His widow Bhagwan Dei died on 19/10/1934. THE contention of Debi Prasad is that Gopal Das hadseparated from his family ; he died intestate and, therefore, being the nearestheir of Gopal Das, he is entitled to the properties left by Gopal Das. THEplaintiff's claim was resisted by the 1st defendant Shyam Behari Lal, whoclaimed to be the adopted son of Gopal Das. According to Shyam BehariLal, he had been adopted by Gopal Das in about the year 1892 when he wasonly an infant. He also resisted the suit on the ground that Gopal Das wasan undivided member of his family and therefore the 1st plaintiff in anyevent cannot claim any rights to the suit properties. His further contentionwas that the 1st plaintiff was estopped from contending that he was not theadopted son of Gopal Das. Shyam Behari Lal died during the pendency ofthe appeal before the High court and his legal representatives are contestingthis appeal. Debi Prasad also died during the pendency of this appeal. THETrial court substantially accepted the claim made in the plaint but in appealthe High court reversed the decree of the Trial court and dismissed the suit. The principal question that we have to decide in this case is whetherthe adoption pleaded by Shyam Behari Lal is true and valid. According toShyam Behari Lal, Gopal Das took him in adoption on February 8, 1892, onthe very day he was born. He says that very soon after his birth, his naturalparents handed him over to Gopal Das and his wife who took him over as theiradopted son and thereafter performed the necessary ceremonies according tothe custom of their community. He also pleaded that in the community ofGopal Das, there is a custom of taking a child in adoption on the very dayof its birth. The plaintiffs have denied both the factum of adoption as wellas the custom pleaded.;