B. D. Agarwal, J. - (1.) THIS is defendant's appeal.
(2.) THE following pedigree serves to elucidate the relevant facts:- Ram Swarup Reoti Saran (plaintiff) Smt. Ramkali Smt. Kasturi Devi Smt. Ram Murti Devi (D. 1/4) (Dead) (D. 2) Ramesn Behari Shakuntala Chelan Kumari (D. 1/1) (D.1/2) (P. 1/3) Rewati Saran is the son of Ram Swarup from his first wife. The suit was brought by him on April 25, 1966 against the father for partition. The dispute in this second appeal is confined to a house situate within the municipal limits of Bulandhshahr. On the death of his first wife, Ram Swaup remarried. From the second wife he had three daughters, namely, Smt. Ramkali Smt. Kasturi Devi and Smt. Ram Murti Devi. Kasturi Devi predecessed the father leaving behind one son and two daughters. The allegations of the plaintiff Rewati Saran are that he constituted joint Hindu family with his father. There was large ancestral property in the town of Manglore and in Bulandshahr. The plaintiff used to pool his income with that of the father. The property in dispute was acquired from the joint family fund. Accordingly he claimed l/2 share in the aforementioned house by partition. Smt. Ram Murti defendant no. 2 was brought on the record by application dated May 24, 1968. On April 17, 1968 Ram Swarup executed a deed of gift in favour of the defendant no. 2 in respect of the disputed house. The plaintiff claims that this gift is void. Ram Swarup died on October 24, 1972 during the pendency of the suit whereupon his legal representatives were substituted and the plaintiff has amended the plaint claiming that his share is now accelerated to 5/8th in the said house. In defence, Smt. Ram Murti Devi-defendant no. 2 denied that the plaintiff constituted joint family with the father. It was asserted that there had been separation about 40 years earlier. The plaintiff had been married and the relations between his wife and the mother in law (the step mother of the plaintiff) were strained. The family was not possessed of ancestral property nor was there any poolling of the income. The earning of the plaintiff himself was not adequate. The plaintiff had himself accepted the gift of one house mads by the father during his life time. The house in question belong to Ram Swarup as his self acquired property. He had been Patwari nearly 42 years prior to his retirement in August 1937. The gift in favour of the defendant no. 2 was, it is alleged, validly made and the plaintiff could claim no share in this house.
(3.) BRIJ Kishore the defendant no. 3 raised the plea that he had been adopted as his son by the plaintiff on December 1, 1962. The registered deed of adoption was executed on May 18, 1964. The deed of adoption was, however, cancelled subsequently by the plaintiff on January 22, 1965 and the plaintiff maintained that the alleged adoption was invalid because the defendant no. 3 was born on February 11, 1947 and since he was over 15 years in age, he could not have been adopted under the law. Ram Swarup the plaintiff's father also filed written statement disputing the claim of the plaintiff on ground that there had been separation in the family and the house in dispute was his self acquired property. He also referred to a will made by him on April 11, 1967 in favour of the defendant no. 2 which, however, was followed by the deed of gift executed on April 17, 1978.;