- (1.) THIS is a second appeal by the defendant Budharam in a suit for cancellation of adoption and for possession.
(2.) IT is necessary to give a brief pedigree table explaining the relationship between the parties in order properly to understand and appreciate the contentions between them: - Khiyani Moola = Mst. Rukma (widow) Mukhram | Daughter = Daughter's husband Doongra Beerbal & others (plaintiffs) Budhram (Deft. No. 1 Appellant) Khyali (Deft. 2 Chetram (Deft. 3) The dispute relates to the property of the deceased Moola. The plaintiff's case was that Moola had died without any male heir but that on 18. 7. 1925, her widow Mst. Rukma took in adoption her son-in-law Doonga. It was contended that this adoption was invalid in law and contrary to the custom prevalent in the family of the parties. It was also alleged that the property in dispute was the joint ancestral property of the common ancestor Khiyani. Mst. Rukma died some time in Baisakh of Svt. 2003 corresponding to April, 1945. The plaintiffs brought their present suit on her death on 18th February, 1946, in which they prayed for a declaration that the adoption of Doonga was against law and custom and they also prayed for possession as the nearest reversioners of the last holder Moola. The suit was resisted by Budhram, as his father Doonga was dead. The suit was contested on a number of grounds but it is only necessary to refer to two of them for the purposes of the present appeal, and these were that the adoption was valid, both in law and in accordance with custom, and further that the plaintiff's suit was barred by limitation, as they had knowledge of the adoption right from 1925 when it was made. The trial court found that according to the custom in vogue in the family of the parties, the adoption of a daughter's husband was invalid. It also found that the suit was within limitation and consequently decreed the suit. The learned District Judge Ganganagar on appeal upheld the judgment and decree of the trial court. This appeal has been filed from that judgment and decree. It has been strenuously contended by learned counsel for the defendant appellant before me that the judgment of the learned District Judge was quite unsatisfactory and that he had disposed of the case under the belief that the burden of proving the validity of adoption lay upon the defendants. Learned counsel further urged that the learned District Judge had not dealt with the question of custom at all, nor with the question of limitation. I am of opinion that although the judgment of the learned District Judge is not as satisfactory as it should have been, there is no escape from the conclusion that this appeal must be dismissed. I have arrived at this conclusion mainly on the ground that the adoption on which learned counsel for the defendant relies is not a valid adoption in law. The adoption in the present case was made of Doonga by Mst. Rukma by a deed dated 18th July, 1925. The learned District Judge found in his judgment that Mst. Rukma had taken by this deed Doonga in adoption to herself and not to her husband. I have carefully read the deed of adoption and have come to the same conclusion Mst. Rukma in this deed has stated that as she had no son of her own body, she was taking her son-in-law Doonga in adoption. She further stated that Doonga would remain in her "tith". It is significant that the does not mention the "tith" of her husband. It is further remarkable that there is not the slightest reference to her husband by Mst. Rukma in this deed. In these circumstances, it is impossible to resist the conclusion that what Mst. Rukma wanted to do in the present case was to take a son in adoption to herself and not to her husband. Learned counsel for the appellant vehemently contended that there was no specific issue on this point, that there was no evidence on it either and that a presumption must be made in favour of the validity of the adoption, and, therefore, it must be presumed that the adoption made by Mst. Rukma was really made by her to her husband and not to herself. Having given my most careful consideration to these points. I have come to the conclusion that there is no force in any one of them. In the first place, the point is merely one of interpretation of the deed of adoption and this Court is in as good a position to interpret this document as the courts below might have been. In the second place, oral evidence would not be of any use in the interpretation of the document. It is just possible that the parties might have produced witnesses on one side to show that the adoption was made to the husband and on the other that it was made to the wife; but such evidence, in my opinion, would be of no consequence at all, as witnesses produced by either party would be found to support the case set up by it. This question, therefore, has to be principally decided with reference to the deed of adoption itself, and that, what is of real moment, in arriving at the conclusion whether the adoption was made by Mst. Rukma to herself or to her husband. Even if it be assumed for the sake of argument that oral evidence might have been of some assistance in the solution of the present question, it has been brought to my notice by learned counsel for the plaintiff-respondents that defendant Budharam himself stated in his deposition that his father had been taken in adoption to his grand-mother. It clearly appears, therefore that the adoption of Doonga was most probably made by Mst. Rukma to herself and not to her husband to whom no reference whatsoever has been made in the deed of adoption. As I understand this aspect of the case, it seems to me that once the deed of adoption is properly interpreted according to its own language, the rest is a matter of mere law, and the law is well settled that the adoption by a widow to herself and not to her husband is of no consequence in law, and is invalid and it confers no legal right on the person adopted. See Chowdhry Pudum Singh vs. Koer Oodey Singh (1) (12 M. I. A. 350) and Jagannath Pershad vs. Hanuman Pershad (2) (ILR XXXVI Cal. 833. ). I have, therefore, no hesitation in coming to the conclusion that the adoption of Doonga by Mst. Rukma did not and cannot confer any rights upon him or his son Budharam, the defendant appellant. Learned counsel next urged that the suit was in any case barred by time under Art. 118 of the Limitation Act, or its equivalent Art. 105 of the Bikaner Limitation Act. His argument was that a suit for obtaining a declaration as to the invalidity of an adoption must, under the article, be filed within the period of six years from the date of the knowledge of adoption, and the present suit was brought after 21 years of the adoption, and the plaintiffs had knowledge thereof, and, therefore, the suit was barred by time. In my opinion, this contention is also without any force. The plaintiffs brought their suit not only for a declaration as to the invalidity of adoption but also for possession. It is admitted that a suit for possession as such would not be barred by time if the starting point for such a suit was the date of Mst. Rukma's death. It appears to me that the plaintiffs' suit was really for possession although it also contained a prayer for a declaration that the adoption was inoperative against their interests, and that being so, such a suit does not fall within the four corners of Art. 118 of the Indian Limitation Act or Art. 105 of the Bikaner Limitation Act. The reason to my mind is that where an adoption is void and is insufficient to confer any rights upon the adopted son it should really not be necessary to file any suit for getting a declaration as to the invalidity of the adoption, and it is open to the plaintiffs to ignore such an adoption, and bring a suit for possession. In this connection, reference may be made to Umar Khan vs. Niaz-ud-din Khan (3) (39 I. A. 19.); Kalyanadappa vs. Chanbasappa (4) (51 I. A. 220.), Dooddawa vs. Yellawa (5) (AIR 1922 Bom. 223.) and Asa Ram vs. Fatima Begum (6) (AIR 1939 Lah. 135. ). In Kalyandappa vs. Chanbasappa (4), their Lordships of the Privy Council held that the adoption of the defendant was void and the plaintiff was entitled to brush it aside and sue for possession within 12 years from the death of the widow. I, therefore, hold that the present suit was not barred by time as it was brought within a year of the death of Mst. Rukma. In this view of the matter, it is not necessary to go into other questions raised by learned counsel for the appellant, because, once the adoption relied upon by him is found to be invalid and the plaintiffs' suit is held to be within limitation, all other points raised on behalf of the defendant appellant are of no importance or consequence in the circumstances of this case. Under these circumstances, this appeal fails and is hereby dismissed with costs. . ;