- (1.) THIS is a first appeal by the contesting defendants in a declaratory suit. The pedigree table so far as relevant to the matter in issue is as under : ZORAWAR SINGH _______________________________|__________________ | | Budh singh, His deoen - Sawai Singh dant in many degrees is | Bijoy Singh, the present Jawan Singh Thakar of Thikana Makrana. | Nand Singh _________________________________________________|______ | | | Gopal Singh Sursingh Pratapsingh | | ___________________________|______ Prem Singh Balsingh | | | Gulab Singh Anand Singh Dhokal Singh | ___________|____ _________|__________ | | | | | | Himmatsingh P -5 Hanumansingh P -6 Mool Singh D -3 Deep Singh D -1 |___________________________________________ | | | | | | Shivjising D -4 Narainsingh D -2 Kalyan Singh Jorsingh Monsingh Agarsing P -1 P -2 P -4 | Dhulsingh P -3
(2.) KALYANSINGH , Jorsingh, Dhulsingh, Monsingh, Himmatsingh and Hanumansingh who are all descendants of Pratapsingh sued Deepsingh, Narsingh, Moolsingh and Shivjisingh in District Court No. 2, Jodhpur for a declaration that the deed of adoption executed by Balsingh in favour of Deepsingh on 17th March 1939 and registered on 4th April 1939 was Bull and void and inoperative against the plaintiffs. Under the law in Marwar, a registered deed of adoption is only necessary for the validity of an adoption and the relief prayed for amounts to a declaration that the adoption of Deepaingh by Balsingh be declared to be null and void. It was alleged by the plaintiffs that there was a custom amongst the Chhutbhais of Thikana Makrana, to which family the parties belong, by which a member of that family had no right to take any person in adoption. The defendants, Deepsingh and Moolsingh by their separate written statements denied the alleged custom and urged that the adoption was according to Hindu law and Marwar Rajput Adoption Rules and the deed had been duly registered and the adoption was quite valid. Only one issue was framed which though not happily worded covered the matter in dispute, namely, whether there was a custom among the Chhutbhais of Thikana Makrana whereby a member of the said family was not entitled to adopt any person and for that reason the adoption of defendant 1 was invalid. There is no documentary evidence in proof of the alleged custom or disproof thereof, but the parties have led oral evidence on the issue. The District Judge, Nagaur to which Court the case was transferred subsequently found in favour of the plaintiffs on the question of custom and decreed the suit. Deepsingh and his son Narainsingh defendants have preferred this appeal. Of the plaintiffs, Kalyansingh is dead and the remaining five plaintiffs have been made respondents in the appeal. It is argued by the learned counsel for the appellants that the learned District Judge has erred in coming to a finding as to the existence of the custom.
(3.) WE have carefully gone through the evidence and in our opinion, the finding arrived at by the trial Court is entirely erroneous if not perverse.;