- (1.) THIS is a defendant's second appeal and the only question calling for determination is whether the suit had been instituted by a properly authorized person. The facts relating to this litigation are these :
(2.) HIMMATMAL had a certain sum of money due to him from Pokar and accordingly the latter executed a ckhata' in his favour. HIMMATMAL died leaving behind a widow. He also had a brother Bhikamchand and his son Mangilal who were both alive on the date HIMMATMAL died. After his death, the widow herself took no action in respect of the 'khata' in dispute but Mangilal son of Bhikamchand did, inasmuch as he assigned it to Surajmal and the suit, out of which , this appeal has arisen was instituted by the latter for the recovery of a certain sum of money against Pokar. Pokar raised a number of pleas with most of which this appeal is not concerned. The important plea raised by him was that plaintiff Surajmal was not competent in law to institute the suit inasmuch as he was the assignee of the Khata from Mangilal who was not authorized to make the assignment. Trial Court dismissed the suit. On appeal, the learned District Judge found in the plaintiff's favour on all the points and decreed the suit holding that Mangilal was the adopted son of HIMMATMAL and that accordingly the assignment in favour of the plaintiff had been properly made by him. The result was that he accepted the appeal and decreed the plaintiff's suit with costs throughout. The only contention which has been put forward on behalf of the defendant appellant is that on the date of the assignment, Mangilal was not the adopted son of Himmatmal and therefore, had no status to make the assignment in favour of the plaintiff. It appears that the suit was instituted on 2nd of January 1947 while the adoption deed was executed by the widow of Himmatmal and also registered on 17th of May 1948 i. e. nearly one year and five months after the institution of the suit as well as the assignment. Plaintiff led evidence to prove that certain ceremonies relating to adoption had been performed by Himmatmal himself about 9 years before the deed of adoption and that he was actually residing with him in his capacity as the adopted son during his life time. That may be absolutely correct so far as it goes but according to law of adoption as it prevailed in Marwar at that time, no amount of ceremonies could take the place of a registered-deed of adoption which was absolutely imperative in order to establish the factum of the adoption. In the circumstances, the evidence led by the plaintiff is of no avail in this case and there is no escape from the conclusion that till 17th of May 1948 Mangilal was not the adopted son of Himmtmal. Accordingly, it must be held that on the date the assignment was made the only person competent to do so was the widow of the deceased Himmatmal. This leads up to the conclusion that plaintiff took the assignment from a person who had no status on the date of the assignment. In view of the above, I nave no alternative but to hold that the deed of assignment in favour of the plaintiff had not been executed by the person authorised and that accordingly the suit instituted by him was incompetent. The result is that this appeal succeeds and is hereby accepted. The decree passed by the learned District Judge is set aside and that of the trial court restored with costs throughout. Prayer for leave for Letters Patent Appeal is hereby rejected. .;