Subhro Kamal Mukherjee, J. - (1.) This is an appeal by the plaintiff against the judgment and decree passed by a learned Judge of this Court dismissing a suit for declaration and injunction.
(2.) The plaint allegations are that the plaintiff is the natural born son of one Budhmull Jain alias Nehata (since deceased). On or about 30th January, 1956 he was adopted by his maternal grandfather Shew Karan Jain (Kathotia) also known as Siwraj Singh and the adoption of the plaintiff was duly recorded in a registered deed of adoption executed by the said Shew Karan Jain (Kathotia), the adoptive father of the plaintiff. One Radha Rani Devi also known as Radha Devi who was in the exclusive keeping of the adoptive father of the plaintiff was the owner of Premises No.14/4, Sudhir Chatterjee Street, Calcutta and by a registered indenture of settlement executed on 14th February, 1971 she settled the aforesaid premises, inter alia, making the following provisions: a) The settler constituted herself as the trustee of the said trust and duly granted, transferred, assigned and conveyed said premises to the trustees; b) In the event of the death or retirement of the said trustee and of her incapacity to act, the said adoptive father of the plaintiff and failing him his eldest son shall be the trustee of the said trust and thereupon the said premises shall vest in him; Sri Shew Karan Jain the adoptive father of the plaintiff had left behind no other son than the plaintiff who died on 17th July, 1974 and shortly prior to his death, the defendants/respondents entered the said premises and the defendant No.1 claimed to be an executor of a Will dated 14th July, 1974 executed by the settler.
(3.) The defendants contested the suit by filing a written statement, inter alia, denying that the plaintiff/appellant was the adoptive son of Shew Karan Jain (Kathotia) and contended that the deed of adoption was not executed in accordance with law and even if the deed of adoption was, in fact, executed in accordance with law even then in view of the relationship between the adoptive father and the adopted son, the adoption deed could not have been executed in view of the prohibition under the Hindu Law. The learned Judge by the impugned judgment and decree dismissed the suit holding that the plaintiff could not prove the deed of adoption but held that the deed of settlement dated 14th February, 1974 was a valid piece of document. The learned Judge further held that since the will dated 15th July, 1974 was already probated by a competent court of law, such probate was binding and as such the plaintiff was not entitled to any relief in the present suit.;