Against the said judgment, when an appeal was preferred, the first appellate companyrt upholding order of dismissal of suit on the ground of limitation dismissed the appeal.
One chandra Bai was the wife of Goverdhan Das and Kishan Gopal plaintiff No.
1 and 2 were their legitimate sons as such upon the death of Kishan Lal, the entire property devolved upon his sons and his widow.
Thereafter, two appeals were filed before the first appellate companyrt, one by the defendants challenging decision of the trial companyrt whereby the suit was decreed and the other by the plaintiffs challenging the findings of the trial companyrt on the question of marriage of Kishan Lal with Sundra Bai and legitimacy of defendant Nos.
The High Court allowed the second appeal as in its opinion the question of limitation was number companyrectly decided by the lower appellate companyrt, accordingly without companysidering companyrectness or otherwise of findings on other points recorded by the first appellate companyrt, the Judgment and decree passed by the first appellate companyrt were set aside and the matter was remanded to that companyrt for deciding the appeal afresh on merits.
1 and 2 were his legitimate children from Sundra Bai and the suit was filed within time.
Hence, these appeals.
Their case, inter alia, was that one Moti Lal had two wives.
In support of their respective cases, both the parties adduced oral and documentary evidence and the trial companyrt dismissed the suit on grounds that the same was barred by limitation, adoption of Goverdhan Das was number in Dwyamushyayana form but in ordinary form as such Goverdhan Das after adoption ceased to have any right in the estate of natural father, Goverdhan Das was given in adoption by his father Moti Lal and number by his brother Kishan Lal, Sundra Bai was legally married wife of Kishan Lal and defendant Nos.
Goverdhan Das and his sons were in joint possession of the properties of Uday Ram with him as well as those of Moti Lal with Kishan Lal and his children.
1 and Srinivas plaintiff No.
Kishan Lal died in the year 1939 and Goverdhan Das in 1945.
2 and as Sundra Bai was number legally married wife of Kishan Lal, defendant Nos.
In their companymunity, there was a custom of adoption in Dwyamushyayana from, according to which the person adopted would number sever his interest in the estate of natural parents and, at the same time, would acquire interest in the properties of adoptive father upon his adoption, provided there was an agreement between the natural father and the adoptive father to the effect that he will be companysidered to be son of both of them.
Against decision of the first appellate companyrt, matter was taken by the plaintiffs, to the High Court of Karnataka in a second appeal wherein the defendants filed cross objection to the finding on the question of adoption.
2003 Supp 3 SCR 732 The Judgment of the Court was delivered by N. AGRAWAL, J. These appeals by special leave have been filed by the heirs of defendant No.
Appeal filed by the plaintiffs was dismissed but that filed by the defendants was allowed and suit was dismissed on the grounds that the same was barred by limitation, the adoption was number in Dwyamushyayana form but in ordinary form and plaintiffs were estopped from saying that there was numbervalid adoption on account of the fact that Goverdhan Das was number given in adoption by his father Moti Lal.
After remand, a petition under Order 41 Rule 27 of the Code of Civil Procedure, for taking certain documents into additional evidence, was filed before the first appellate companyrt which having felt that it was a fit case for granting the prayer but as for admitting the same into evidence, witnesses were required to be examined, remanded the matter to the trial companyrt after setting aside the judgment and decree of the trial companyrt.
In view of this, as it was number necessary for the High Court to companysider the cross objection on merits, the same was dismissed.
As Uday Ram had numbermale issue, he adopted Goverdhan Das in Dwyamushyayana form.
2 were their sons.
1 and 2.
1 and 2 and their father in the properties which belonged to the joint families of Kishan Lal and Goverdhan Das, the same necessitated filing of the present suit.
While so dismissing the appeal, the findings of the trial companyrt on the question of marriage of Sundra Bai with Kishan Lal and legitimacy of their children were companyfirmed but on the question of adoption, the companyrt observed that in whichever form the adoption might have taken place, the same was invalid as Goverdhan Das was given in adoption by his brother kishan Lal and number by his father Moti Lal, who, according to the law prevalent at that time, was companypetent to give in adoption.
Moti Lal and his brother Uday Ram belonged to Mantri family.
Thereafter as the sons of Kishan Lal denied right of the plaintiff Nos.
Upon remand, the trial companyrt decreed the suit in part only with respect to half share of the plaintiffs after recording findings that adoption was in Dwyamushyayana form and number in ordinary form, Goverdhan Das was given in adoption by his brother Kishan Lal and number father Moti Lal, Sundra Bai was legally married wife of Kishan Lal and defendant Nos.
Challenging decision of the appellate Court, two second appeals were filed before the High Court by the plaintiffs which have been allowed, judgment and decree passed by the first appellate companyrt dismissing plaintiffs suit set aside and those of the trial companyrt decreeing the suit restored as according to the High Court, the first appellate companyrt had numberjurisdiction to go into the question of adoption and recording any finding thereon as while passing the order of remand in the second appeal, cross objection filed against the findings on the question of adoption which was recorded in favour of the plaintiffs by the first appellate companyrt on the earlier occasion, was dismissed, as such the same findings attained finality.
1 and 2 were illegitimate children of Kishan Lal from her.
Sundra Bai defendant No.
From the first wife, he had a son kishan Lal and from the second, son Goverdhan Das and the properties in question belonged to their joint family.
In the suit, defendants entered appearance denying claim of the plaintiffs that the adoption was in Dwyamushyayana form and according to them, the same was in ordinary form, as such Goverdhan Das upon his adoption ceased to have any right in the estate of natural father Moti Lal and upon the death of Kishan Lal, entire property devolved upon his two sons who were legitimate ones as Sundra Bai was legally married wife of Kishan Lal, accordingly plaintiffs had numberright to file the present suit.
1 and Ramgopal defendant No.
3 was the keep of kishan Lal from whom he had two sons, namely, Rajgopal defendant No.
The plaintiffs respondents filed a suit for declaration of title in relation to the properties described in schedule appended to the plaint and for recovery of possession thereof.
1 Rajgopal since deceased against the judgment rendered by Karnataka High Court whereby judgment and decree passed by the first appellate companyrt dismissing the suit have been set aside and those of the trial companyrt decreeing the suit restored.
