DIPAK MISRA,J - (1.)IN this appeal preferred under Section 96 of the Code of Civil Procedure the plaintiff-appellant has called in question the propriety of the judgment and decree dated 30.7.1998 passed by the learned District Judge, Seoni in Civil Suit No. 1-A/78 whereby he has dismissed the suit of the plaintiff filed for declaration, partition and separate possession.
(2.)THE plaintiff filed the suit in forma pauperis for declaration, partition and separate possession. The admitted facts of the case are that the deceased Ramrichhpal had four sons namely, Jagan Prasad, Motilal, Suraj Prasad and Harishchand. The plaintiff is the only son and heir of his deceased father, Jagan Prasad. His uncle Suraj Prasad died as a widower and issueless. His another uncle Motilal expired sometime in the month of February-March, 1971. The defendants Nos. 3 and 4 are the daughters of Motilal. His last uncle Harischand died on 19.1.1974. The defendant No. 1 has adopted defendant No. 2. To appreciate the factual scenario it is apposite to give the family genealogy.
Ramrichhpal Jagan Prasad, Motilal, Suraj Prasad (died widower and issueless), Harishchand Uma Prasad (Plaintiff), Gyarsi Bai (defendant No. 3), Kamla Bai (defendant No. 4), Smt. Padmavati (defendant No. 1) Nirmal Kumar (defendant No. 2) From the above it becomes clear that the defendants No. 3 and 4 are daughters of Motilal. The defendant No. 1 on 8.12.1974 adopted defendant No. 2, Nirmal Kumar. It is not disputed that the parties to the suit are Agrawals by caste having Aron as their 'Gotra' and they are governed by Mitakshara School of Hindu Law. It is also an admitted fact that they are originally the residents of village Bhalot of Rajasthan State and they had migrated themselves to the State of M.P. and while so doing they had brought their customs with them. It is to be noted here that initially a Civil Suit No. 110/A/74 was filed in the Court of Civil Judge, Class-II, Seoni, against the defendants No. 1 and 2 for permanent injunction restraining the defendants Nos. 1 and 2 from taking the defendant No. 2 in adoption. By the time the order of injunction could be served on the defendants the adoption had taken place, and therefore, the plaintiff had withdrawn the suit with permission to bring a separate suit.

According to the plaintiff the Joint Hindu Family consisting of his grandfather, Ramrichhpal; his father, Jagan Prasad; and his uncles, Motilal Suraj Prasad and Harishchand carried the business of 'Hemp' at Seoni. After the death of his grandfather, Ramrichhpal, the four sons with the capital of Joint Hindu Family started separate business. His deceased uncle Harishchand started 'Kirana' business with the funds of the said Joint Hindu Family, and therefore, the properties purchased by him and as mentioned in Schedules 'A' and 'B' annexured to the plaint belong to the Joint Family. It is also put forth in the plaint that he is the sole surviving coparcener of the Joint Hindu Family. It was pleaded by him that the defendant No. 2 was above 15 years of age at the time of adoption, and therefore, the adoption is void being hit by the provisions of Hindu Adoptions and Maintenance Act, 1956. In the alternative it was set forth by the plaintiff that even if the adoption was found to be valid he was entitled to the half share in the suit property.

(3.)THE defendant Nos. 1 and 2 filed their written statement denying the claim of the plaintiff. They disputed that the plaintiff is the sole surviving coparcener of the Joint Hindu Family or is entitled to half of the property mentioned in Schedule A and B annexed to the plaint. Their positive plea before the Court below is that in or about the year 1924-25 late Ramrichhpal faced a financial crisis and at that juncture the father of the plaintiff, Jagan Prasad had withdrawn himself from the family business with a view to escape from the liability and separated himself and started a new business in the name and style of 'Jagan Prasad and Uma Prasad'. The rest of the family remained joint. As alleged, late Ramrichhpal has disposed of all the assets belonging to the Joint Hindu Family to discharge the debts. Late Motilal, Suraj Prasad and Harishchand started their business from the borrowed capital and slowly improved their financial position. On the death of Suraj Prasad his share in the Joint Hindu Family business devolved upon his two surviving brothers, namely, Motilal and Harishchand. It is also pleaded by the said defendants that the defendant No. 1 from her own resources purchased some land in village Paunar and installed Rice Milling Factory. This property is self-acquired property. They have denied that Harishchand had owned golden ornaments weighing 200 tolas and silver ornaments weighing 500 tolas. The positive plea put forth is that the defendant No. 1 owned some gold and silver ornaments of her own as her 'Stri Dhan'. These two defendants have also put forth that late Motilal had bequeathed all his property to the deceased Harishchand and late Harishchand had also executed a Will on 14.6.1973 in favour of the defendant No. 1 who is his wife. It is also set forth in the written statement that Agrawals migrated from Rajasthan and Haryana and had settled in Madhya Pradesh and Nagpur and Wardha regions of Maharashtra State. They had brought their ancient and well established customs on usages to take in adoption boys even over 15 years of age. Thus, Agrawals, as claimed by them, brought their customs from their State to their place of stay. In this backdrop it is pleaded that the adoption of P.W. 2 is just and valid. Lastly it was urged by the defendants that the earlier suit i.e. Civil Suit No. 28- A/96 does not operate as res judicata and the plaintiff should value the suit for the purpose of court fees and jurisdiction at Rs. 1,30,000/-. Their further plea is that late Jagan Prasad the father of the plaintiff had ceased to be a member of Joint Hindu Family almost five decades back, and therefore, at his instance a suit for declaration, partition and separate possession is liable to be dismissed.