P.N.SHINGHAL, J. - (1.) THIS appeal was filed by plaintiff Shivchand against the appellate judgment and decree of the learned District Judge of Jodhpur dated October 21, 1965. Shivchand died during the pendency of the appeal and his legal representatives are now on the record.
(2.) THERE has been much controversy about the subject matter of the suit and it is necessary to state the facts but before doing so it will be better to mention the genealogy (for genealogy see below) of the parties so as to bring out their relationship. HATHI RAM | _____________________________________________________________________________________________ | | Gopinath Hardeo | | ________________________________ _______________________________________________________ | | | | | | Sawaldas Motilal Chandlal Banraj Chunilal Fatehraj | | | | ________________________ Meghraj Shrinath __________________ | | | | | | Mansaram Maidas | | Moolraj Deoraj | | | | Shivchand | | Gangshyam (Plaintiff) | _______________________________________________ (by adoption) | | | | | | Shiv Harak Bijay Laxman | Chand Chand Raj Das _______________________________ | | Gulraj Madohdas | ________________________________________________ | | | Madanlal Daulal Narsinghdas (Defendent) Hathi Ram, the common ancestor of the parties, was admittedly the 'jagirdar' of village Polawas. He was a Purohit and had two sons, Gopinath and Hardeo. Mansaram and Maidas were the grandsons of Gopinath, being sons of Motilal. The dispute relates to the adoption of Madanlal (defendant), a great great grandson of Hardeo, by Mansaram. That adoption was challenged by plaintiff Shivchand by this suit on May 2, 1950. It was alleged by him that defendant Madanlal's grandfather Meghraj went in adoption to his maternal grandfather Kaniram alias Gunraj Chhangani so that he and his descendants ceased to have anything to do with Hathi Ram's 'jagir' or other property, and could not be validly adopted by any of the descendants of Hathi Ram under the law of 'mooris -i -ala.' It was stated that Mansaram instituted a suit for partition against Maidas, but compromised it by an agreement (Ex. 1) dated March 21, 1917 under which he got only an allowance of Rs. 7 per mensem for his maintenance and made Maidas the exclusive owner of the rest of the 'jagir' and the other property. It was pleaded that Mansaram became a lunatic sometime thereafter, and remained so throughout his life, so that the sum of Rs. V which was deposited by Maidas every month under the aforesaid agreement (Ex. 1) was withdrawn by Fatehraj or Mool -raj as his guardians. It was the case of the plaintiff that Mansaram was under their influence and was afraid of them, and was not in a position to understand what was good or bad for him. Maidas had no son and his widow adopted the plaintiff on October 14, 1939, under a registered deed of adoption. Thereupon Fatehraj, Moolraj, Gulraj and Madhodas got a deed of adoption written regarding the adoption of Madanlal by Mansaram. That document was presented for registration, but the Registrar held that Mansaram was of unsound mind and refused to register it on January 29, 1940. On appeal, the document was sent back to the Registrar, but he again refused to register it by his order dated July 14, 1940 on the ground that Mansaram was a lunatic. Madanlal then instituted a suit on September 11, 1940 in the Court of Joint Kotwal No. 1 for the compulsory registration of the deed of adoption. The Joint Kotwal held on January 4, 1944 that Mansaram was a lunatic, appointed Mr. Hukamchand, Advocate, as his guardian ad litem and ultimately dismissed the suit on August 3, 1944. A week thereafter, another deed or adoption (Ex. P. W. 10/1) was got executed by Mansaram. It was presented for registration on October 10, 1944 and was registered the next day in spite of the objection of the plaintiff. As Madanlal gave himself out to be the adopted son of Mansaram on the basis of that document and wanted to take his share in Gopinath's 'jagir' and other property, he filed a suit against the plaintiff in the District Court alleging that the plaintiff was not the son of Maidas. That suit was opposed by the present plaintiff on the ground, inter alia, that Madanlal was not the validly adopted son of Mansaram. Thereafter the plaintiff himself raised the present suit alleging that the deed of adoption Ex. P. W. 10/1 cast a cloud on his rights and there was reason to apprehend that Madanlal might withdraw his suit and thereby prevent a trial of the dispute regarding the validity of his own adoption by Mansaram. The plaintiff therefore prayed for a declaration that the defendant had no right to the 'jagir' and other property of Gopinath and his descendants and the deed of adoption in favour of the defendant was illegal and inoperative against him.
(3.) DEFENDANT Madanlal denied the claim altogether. He denied that the plaintiff was the adopted son of Maidas and pleaded that he himself ceased to be the son of Madhodas because of his adoption by Mansaram. He admitted however that Hathi Ram was their common ancestor and was the 'jagirdar' of Polawas, but denied Meghraj's adoption by Kaniram alias Gun -raj. It was admitted that Mansaram and Maidas were the two descendants of Gopi -nath and that Maidas died in the life time of Mansaram. It was alleged that Mansaram filed a suit for partition of the property against Maidas which was finally decided on June 29, 1904, and Mansaram was held entitled to a half share. The defendant denied that Mansaram entered into any compromise with. Maidas or presented it before any Court. In the alternative, it was pleaded that even if any such compromise was proved, it could not have any effect on Mansaram's descendants and came to an end on his death. At the same time, it was pleaded that after the death of Maidas, Mansaram became the owner of the entire property. It was denied that Mansaram became a lunatic at any time or remained in that state of mind until his death or that Fatehraj and Moolraj withdrew any money because of his lunacy. So also, it was denied that they had any influence on Mansaram, or that he was afraid of them. It was pleaded that Mansaram was able to think what was good or bad for him and that, on the other hand, any deed of adoption executed by Maidas's widow in favour of the plaintiff under undue influence was not legal and was void and invalid. It was pleaded that Mansaram executed the deed of adoption after taking the defendant in adoption of his own free -will and choice, but the Registrar did not register it and the defendant had to file a suit in the Court of Joint Kotwal No. 1 for its registration. A question arose whether it was necessary to appoint a guardian ad litem of Mansaram for purposes of that suit and Mr. Jukam -chand was appointed as the guardian until the decision of that question. Ultimately, the suit was dismissed on the ground that it was barred by limitation and it could not have any adverse effect on the rights of the defendant. It was pleaded in paragraph 11 of the written statement that thereafter on August 10, 1944, Mansaram took the defendant in adoption and wrote the deed of adoption (Exhibit P.W. -10/1) in his own hand. It was presented for registration and was registered in spite of the objection of the plaintiff. The defendant pleaded that as he wanted to take his share in Gopinath's 'jagir' and other property as the adopted son of Mansaram, he filed a suit against the plaintiff in the Court of the Civil Judge, and that the plaintiff raised the present suit to bring undue pressure on him although all the points in controversy between the parties could well be decided in his own suit. It was, however, admitted that the 'mooris -i -ala' law was binding on the parties.;