- (1.) THIS is a second appeal from the decision of the learned District Judge of Churu dated the 23rd July, 1948.
(2.) THE appellant, Punamchand, was the defendant in the suit. THE plaintiff respondent, Kanhyalal, is his brother's son. On the nth February, 1947, the defendant appellant executed a deed of Khola, stating that he had taken Kanhyalal as his Kholayat, that is, as his adopted son, and had it registered. On the 29th March, 1947, Punamchand executed a deed, which he described as Ibtalnama, and purported to cancel thereby the Khola deed of the nth February, 1947. This deed also was registered. Kanhyalal, who was a minor, thereupon brought a suit, with his mother Mst. Rukma as his next friend, and prayed for a declaration that the Ibtalnama was null and void and was not effective for the purpose of cancelling the Khola deed. He had also asked for a decree granting a perpetual injunction restraining the defendant from encumbering and transferring the family property. THE Munsiff dismissed the suit on the ground that the Khola had not been acted upon. THE decision was based on the ground that the plaintiff was not present at the house of the defendant at the time of the execution of the Khola deed and that he had not come to live with the defendant upto the 29th March, 1947, when the Ibtalnama was executed. THE Munsiff had placed reliance on the case of Ganesha v Sasi Ram, reported in 19 B. L. R. at page 19. THE plaintiff appealed and the, learned District Judge reversed the Munsiff's decree and granted a declaration to the plaintiff to the effect that he was the Kholayat (adopted son) of the defendant and that the Ibtalnama, which the defendant had executed on the 29th March, 1947, was null and void. THE learned judge placed reliance on a later ruling of the Bikaner High Court in the case of Kripalsingh v Sarjitsingh which was decided on the 30th September, 1947. THE defendant has accordingly filed this second appeal. We have heard Mr. Lalta Prasad on behalf of the appellant and he has said all that could be said in support of this appeal. We have, however, no hesitation in coming to the conclusion that the decision of the learned District Judge is quite correct. It was held in the case of Ganesha, v Sasi Ram that a Khola may be set aside if it is found that it had not been acted upon. In Kripalsingh v Sarjitsingh it was held that all that was necessary to establish the Kholayat relationship was that the person taking a boy as his Kholayat should express his intention in some unequivocal and clear manner. In view of the facts of the case before us, we do not consi-der it necessary to express any opinion as to the respective merits of the decisions in these two cases. As has been stated above, the deed of Khola was executed on the nth of February, 1947. Kanhyalal was a minor and was admittedly not living with Punamchand at that time. It is obvious that Punamchand, when he executed the Khola deed, expressed his intention of taking Kanhyalal as his Kholayat in the most unequivocal and clear manner and in solemn form, The mere fact that Kanhyalal did not come to live with Punamchand for a period of a month and a half can be no ground for allowing Punamchand to set aside his solemn deed. It has not been contended before us that Punamchand sent for Kanhyalal at any time during that period of a month and a half and that Kanhyalal refused to come or that his mother refuse bring or send him. The learned counsel for the defendant appellant says that the ground on which the Ibtalnama was executed was that Kanhyalal had not served Punamchand and that the principal object which Punamchand had in taking Kanhyalal as his Kholayat was that Kanhyalal would serve him. In the first place, the period intervening between the two deeds was so short that it would not be right to hold that Kanhyalal had failed to serve Punamehand. Secondly it is not easy to see what exactly is meant by saying that this minor boy should have served Punamchand and that he failed to do so. Thirdly, as we have said, above, it is not alleged that Punamchand took any steps to send for Kanhyalal to live with him and that Kanhyalal or his mother disregarded his (Punamchand's) wishes. In all the circumstances of this case, the ground on which Punamchand purported to cancel the Khola deed is flimsy and it is not open to any one to repudiate his solemn deed in this manner. The appeal fails and is dismissed with costs. .;