Arijit Pasayat, J. - (1.) Second appeal filed by the defendants having been allowed by the learned single Judge of the Allahabad High Court one of the plaintiffs Salekh Chand has filed this appeal. The legal heirs of the another plaintiff Om Prakash, who died on 28-2-1998 (pro forma respondent No. 4) have been im pleaded in this appeal. Om Prakashs widow Smt. Ram Kumari died on 2-6-1999 and, therefore, their son Munna Lal is pro forma respondent No. 4.
(2.) Background facts in a nutshell are as follows : A suit filed by the plaintiffs Om Prakash and present appellant Salakh Chand was dismissed by learned Additional Civil Judge, Ghaziabad in Suit No. 699/84. Learned Additional District Judge, Ghaziabad reversed the judgment and decree dated 5-3-1990 by judgment and decree dated 22-2-1998. The plaint averments refer to the following facts : Om Prakash and Salekh Chand filed suit No. 699 of 1984 against Smt. Satya Gupta and one Brijesh Kumar. Shiv Om Banshal and Mahendra Kumar Banshal (Respondent Nos. 2 and 3 in this appeal) were impleaded as defendant Nos. 3 and 4. The plaint allegations were that House No. 104 (old number) with its new numbers 175 and 176 described in the plaint belonged to one Pares Ram who had four sons namely, Jagannath, Dina Nath, Anand Swaroop and Battu Mal. The pedigree was as follows : Dina Nath died issueless out. During his lifetime he had sold his 1/4th share to Battu Mal. Surendra Kumar and his mother (widow of Anand Swaroop) had sold their 1/4th share to Smt. Satya Gupta by registered saledeed. Brijesh Kumar defen dant No. 2 is the adopted son of Battu Mal. On the death of Jagannath his son Chandra Bhan succeeded to share of Jagannath in the suit property. On the death of Chandra Bhan his widow succeeded to the suit property. She executed a sale deed dated 26-7-1979 of her share in the suit property. Thus the plaintiffs are co-sharers of 1/4th share in the suit property whereas defendant Nos. 1 and 2 are co-sharers of 3/8 share each in the suit property. It is alleged that Jagannath had no issue. He had adopted Chandra Bhan who happens to be the son of his real sister and the sisters husbands name was also Jagannath. Ceremony of adoption was preformed in accordance with the customs of the community prevalent among the parties in the month of Flagun Samvat 1985. There was a custom in the community of the co-sharers to adopt sisters son and Smt. Shanti Devi was wife of Chandra Bhan. The plaintiffs wanted to get the suit property partitioned and have their separate 1/4th share in the suit property. On the above pleadings the relief claimed was that the suit property be partitioned by metes and bounds and the plaintiffs be given possession on the separate share allot ted to them. Defendant No. 2 did not file any written statement and suit against him proceeded ex parte. Defendant No. 1 (present respondent No. 1) and defendant Nos. 3 and 4 contested the suit by filing separate written statements. Defendant No. 1 in her written state ment denied the claim of the plaintiffs and it was pleaded that plaintiff No. 1 Om Prakash was tenant of Smt. Chawali Devi on part of the land of the disputed property at the rate of Rs. 65/- per month as rent. He inducted plaintiff No.2 as sub-tenant. Smt. Chawali Devi, mother of defendant No. 1 Smt. Satya Gupta succeeded to the share of Chawali Devi in the suit property. She filed suit No. 31 of 1985 for eject ment of the plaintiffs, which was then pending. The family pedigree was accepted subject to the correction that Chandra Bhan and Shanti Devi were wrongly shown as son of Jagannath and widow of Chandra Bhan. Jagannath died issueless. Likewise Battu Mal had not adopted any son, Brijesh Kumar, and defendant No.2 Brijesh Kumar was not adopted son of Battu Mal. At the time of his death, Battu Mal was owner of the entire suit property and on his death his widow Smt. Chawali Devi became owner in possession and on Chawali Devis death, defendant No.1 Smt. Satya Gupta being her daughter became owner in possession of the entire suit prop erty. The plaintiff and other defendants have no share in the suit property. The sale deed executed by Smt. Shanti Devi in favour of the plaintiffs is null and void. Jagannath had not adopted Chandra Bhan son of his sister and according to the Hindu custom in Vaishya community sisters son cannot be adopted. No such cus tom was prevalent in the Vaishya community of Hapur. Hence the alleged adop tion was illegal. Jagannath died issueless about 50 years back and on his death Dina Nath, Anand Swaroop and Battu Mal alias Jagat Swaroop became owners in posses sion by survivorship and their names were mutated in the Municipal records on the application moved by Dina Nath and Battu Mal in the year of 1935. Thereafter Battu Mal has purchased the share of Dina Nath and Anand Swaroop and thus Battu Mal became sole owner of the suit property. Relevant entries were made in the Municipal records for the assessment years 1946-51. Battu Mal was murdered. One Surendra Kumar and Smt. Basanti Devi had no share in the suit property. But in order to avoid any dispute defendant Satya Gupta had purchased 1/2 share from Surendra Kumar and Smt. Basanti Devi. Battu Mal had never adopted Brijesh Kumar and Brijesh Kumar is son of one Shambhu Saran who was distantly related to Battu Mal. Brijesh Kumar was sentenced to life imprisonment for committing the murder of Battu Mal in the year 1956 and thus Brijesh Kumar was not entitled to succeed to the property of Battu Mal. One Sri Hari Shanker Bansal (father of Defendants Nos. 3 and 4) was tenant of Smt. Chawali Devi on part of the suit property for about last 25 years and he had constructed one pucca room on the land under his tenancy. Plaintiff No. 1, Om Prakash was also given 7 x 7 feet land of suit property on rent by Smt. Chawli Devi on which a temporary wooden Khokha was kept by Om Prakash in which he was doing Crockery and Shamiyana business. It was also pleaded that Smt. Chawali Devi executed a will dated 21-6-1962 in favour of Defendant 1 in respect to her entire property. She died on 23-5-1980 and on her death defendant No. 1 filed Testa mentary Suit No. 1/81 in the High Court on the basis of the will dated 21-6-1962 and she was granted Letters of Administration on 9-4-1984. Defendant No. 1 is in pos session of the suit property for last about 20 years and her name is entered in the Municipal Records as owner of the disputed property. Plaintiffs never objected to it. The answering defendant sold by a registered sale deed properties to Bansals (De fendants Nos. 3 and 4) and they are necessary parties to the suit. Defendants Nos. 3 and 4 in their written statements adopted the pleadings of defen dant No. 1 and categorically, alleged that according to the Hindu custom sisters son cannot be adopted, hence alleged adoption of Chandra Bhan by Jagannath was against law. Plaintiffs filed replication in which it was reiterated that in the Township of Hapur, where Jagannath, Anand Swaroop etc. lived, there was a custom prevalent among Vaish community to adopt son of sister. It was also pleaded that since only Battu Mal lived in Ghaziabad, he got his name mutated in the Municipal Records. In the sale deed executed by Surendra Kumar and Basanti Devi in favour of defendant No. 1s 1/4th share is shown to have been sold as l/3rd share to defendant No. 1. On the pleadings of the parties, the trial Court framed a number of issues. Rel evant issues are issues Nos. 1 and 2 which were as follows : 1. Whether a custom was prevalent in Vaish community to validly adopt son of the sister 2. Whether Jagannath had legally adopted Chandra Bhan as a son, if so what is its effect Both the parties adduced oral as well as documentary evidence. The trial Court on consideration of the evidence adduced before it and also on consideration of legal position recorded finding that the plaintiffs have failed to establish that Jagannath had legally adopted Chandra Bhan as his son. They have also failed to establish that in the Township of Hapur a custom was prevalent in Vaish community, to validly adopt son of sister. The trial Court also recorded a finding of fact that the plaintiffs have failed to establish that the formalities of adoption were observed in accordance with law. On the other issue also the trial Court recorded finding of fact against the plaintiffs. The trial Court accordingly dismissed the suit. The First Appellate Court reversed the findings and held that the custom of adoption was prevalent amongst community and, therefore, Chander Bhan was the le gally adopted son of Jagannath in the suit property and on his death, widow of Chander Bhan had 1/4th share in the property. The plaintiffs suit was accordingly decreed. The High Court in the second appeal formulated the following questions for determina tion : 1. Whether the plaintiffs/respondents have successfully discharged the burden of proof to establish that there existed a custom in the Vaish community to which the lineal descendants of Paras Ram belonged, to adopt the son of sister 2. Whether a Hindu belonging to the regenerated class could be adopted after performance of Janeu ceremony 3. Whether for proving the factum of adoption it was necessary to lead evidence of giving and taking of an adopted child at the time of ceremony of adoption 4. Whether recital in a document regarding alleged adoption is sufficient for proving of the factum of adoption
(3.) The High Court found that question No. 3 as formulated above was not a sub stantial question of law but held that there was no prevalent custom permitting adop tion of the sisters son and, therefore, the appeal was allowed.;