- (1.) THIS is a first appeal by Heeralal and Hansraj against the judgment and decree of the Civil Judge, Churu.
(2.) THE suit, out of which this appeal has arisen, was brought by Mahadeo, Tarachand and Rameshwar. THEir case was that they had 3/4ths share in certain property situate in Sujangarh and that this share was not liable to be attached in the decree obtained by Heeralal and Hansraj defendant appellants against Ladhuram and his son Jairam. THE defendants had attached one house and half share in another in Sujangarh in execution of the decree which they had obtained against Laduram and his son Jairam on the 31st October, 1936. THE plaintiff's case was that 3/4ths share in one house and 1/2 of the attached share in the other house were not liable to be attached as the plaintiffs had 3/4ths share in the entirely of both the houses. THE plaintiffs based their case on the following pedigree - Balooram Binjraj Nanagram (died sonless) Jagannath Laduram (Deft.) Mahadeo (Pltf. 1) Gordhan Jairam (Deft.) Ghanshyam Doongar Ram Rameshwar (Went in Adoption) The case of the plaintiffs was that the two houses in dispute were ancestral property coming on in their family from the time of Baluram. After the death of Nanagram, the entirely of the property came to Binjraj, After Binjraj's death, Laduram and his three brothers had 1/4 share each in the two houses. Consequently the plaintiffs claimed that they were entitled to the release of 3/4th share belonging to them. The suit was resisted by the defendants. Their case was that Laduram was adopted by Nanagram and therefore, Laduram had 1/2 share in the ancestral property. They also claimed that one of the houses belonged entirely to Nanagram and, there foce, Laduram was the owner of the whole house. A number of issues were framed by the trial court but the two main issues which now require consideration are (1) whether Laduram was an adopted son of Nanagram deceased and (2) whether the property in suit was joint or the exclusive property of Laduram. The trial court came to the conclusion that Laduram had not been adopted by Nanagram. It also came to the conclusion that the property was joint property and not the exclusive property of Laduram. It, therefore, decreed the suit, Heeralal and Hansraj have come in appeal against this decree and it is contended on their behalf that the adoption of Laduram to Nanagram has been proved, and, therefore, in any case, the court was not right in releasing 3/4ths share in both houses. Further, it is contended that the defendants have succeeded in proving that Laduram was exclusively entitled to one of the houses and, therefore, the decree of , the court to that extent is also wrong. We shall first consider the issue as to whether Laduram was an adopted son of Nanagram. On that point, there is documentary evidence to show that Laduram had been adopted in the khola from by the widow of Nanagram to her husband in Svt. 1969. It seems that in the former Bikaner State it was usual for those making an adoption to get the adoption recognized by the State. There was a charge in the shape of a fee which was paid in this connection, and a certificate signed by some member or the other of the State Council was issued in that connection. There is documentary evidence to prove that there was an application on behalf of Mst. Sundri, widow of Nanagram, for taking Laduram in adoption in the khola from to her husband Nanagram and that that application was allowed and a certificate, Ex. D-22, was issued. There levant documents in that connection are Exs. D-5 to D-17. Then we have the evidence that Laduram called himself the son of Nanagram in the suit in which the decree was passed against him in October. 1936. In the written statement that was filed by him, he described himself at the end of Ex. D-24 as the adopted son of Nanagram. As against this evidence by the defendants, there is only the oral testimony of the three plaintiffs and their cousin Mst. Jamni, and two neighbours to the effect that Laduram never went in adoption to Nanagram. We are not prepared to accept this oral testimony as it is obviously in the interests of the plaintiffs now to deny the adoption so that they might be able to save 3/4ths of the property, There is no reason why the adoption, of Laduram to Nanagram should not be accepted as proved by the certificate, Ex. D-22, issued by the former State of Bikaner under the signatures of some of the members of the State Council. The learned Civil Judge did not accept this certificate on the ground that no notice of the proceedings resulting in the issue of the certificate was given to the relations of Laduram and that it had not been proved that Mst. Sundri had the authority of her husband to adopt or that the adoption had taken place with the consent of the other coparceners. We are of opinion that these reasons have no force. No law has been pointed out to us which required that before a certificate was issued by the former Bikaner State, it was necessary to serve the relations with notice. Khola in that State was a form of customary adoption, and its incidents were set out in Ramanlal vs. Mst. Nandan (l ). A Full Bench in that case while pointing out the distinction between an adoption under the Hindu Law and adoption under the Customary Law of khola observed as follows: - "under khola system none of the conditions of the Hindu Law noted above are essential. Grown up and married persons having children are made kholas.------- The rule of Hindu Law that adopted son's mother in her maiden state be marriageable to the adoptive father is totally ignored and daughter's sons and sister's sons are generally adopted as kholas. Giving and taking of the boy do not take place and Datta Homam is never performed.-------- Widows adopt kholas without the authority or permission of their husbands. " In this view of the matter, the Civil Judge was not right in holding that the adoption could not take place because there was no authority in the widow to adopt, or that the consent of the other coparceners had not been taken. We are therefore, of opinion that the adoption of Laduram to Nanagram by the latter's widow Mst. Sundri has been amply proved in this case. As the property was not divided, Laduram would have half share in the two houses and not one-forth as alleged by the plaintiffs. The defendants-decree-holders have attached half of one house and so far as that is concerned, there is nothing wrong with that attachment, as we have just held that Laduram had half share in the property of the family which was not divided; but so far as the other house is concerned, the whole of it has been attached. The case of the defendants is that during the proceedings relating to grant of khola certificate, it was stated in the list of property Ex. D-10 that Nanagram was owner of one Haveli. This was, in our opinion, a mere statement of Nanagram's widow. This list was prepared at the instance of Mst. Sundri and can, at best, amount to an admission by her in her, own favour, We are not prepared to accept this admission as proof of the fact that this house belonged solely to Nanagram and therefore, came in its entirety to Laduram. It is true that the family divided about 30 to 35 years ago. But it is clear from the statements of various witnesses for the plaintiffs that the house property remained joint and there is nothing on behalf of the defendants to show that this was not so. We prefer to accept the statements of the plaintiffs and their witnesses, P. Ws. 5 and 6, which show that the house property was never divided. In this view of the matter, Laduram had only half share in this house also. The result of these findings is that the suit must be dismissed with respect to one house, half share of which only has been attached. It will be decreed with respect to half share of that house the whole of which has been attached. We, therefore, party allow the appeal and dismiss the suit so far as that house is concerned of which only half share has been attached. So far as that house is concerned the whole of which is attached, we modify the decree of the court below and reduce the share to be released to half of the house instead of 3/4ths. As parties have lost and won almost equally, we order them to bear their own costs of this appeal and of the trial court. . ;