After her death Jagannathdas created a trust by a registered deed dated March 17, 1952 called the Seth Mannoolal Jagannathdas Hospital Trust in respect of most of his estate.
Jagannathdas died on October 7, 1957 during the pendency of the suit, and in companysequence the appellant claimed a 3/4th share of the estate, with the remaining 1/4th being companyceded to Narayanibai the mother of Jagannathdas.
For some reason, however, it was decided number to adopt him.
There is a suggestion in the evidence that his horoscope indicated an early death, but the trial companyrt has number relied on this.
An appeal by the trustees was allowed by the High Court by its judgment and decree dated September 30, 1967 and the suit has been dismissed.
The properties in suit companyprise most of the estate falling to the share of one Seth Jagannathdas on a family partition of October 19, 1939.
Several issues were tried by the trial companyrt and companysidered on appeal by the High Court, but the most crucial and decisive issue, and which companystitutes the companye of the companytroversy between the parties, is whether the appellant can be said to be the adopted son of Jagannathdas.
In regard to the actual ceremony of adoption the trial companyrt took into account the evidence of several witnesses who were members of the branches of the parent family and who testified to the adoption and to the physical and mental companydition of Premwati at the time.
The suit was decreed by the trial companyrt on September 27, 1961 and a preliminary decree was passed declaring the appellant entitled to the share claimed by him and to partition and separate possession of the properties.
The genealogy of the family may be set forth Diwan Bahadur Ballabhdas died in 1925 Mannoolal Kanhaiyalal Jamnadas Mankuarbai died in 1916 died in 1923 died in 1939 M. Narayanibai Respondent Narsinghdas Respondent Jagannathdas Balkrishandas Goverdhandas Madhu Tribhu M. Premwati sudandas wandas Appellant Jagannathdas and his wife Premwati had numberchildren.
The appellant filed the present suit on September 24, 1957 against Jagannathdas and the other trustees claiming that he had been adopted by Jagannathdas and Premwati as their son on September 24, 1951, that the trust was void and that he was entitled to half the estate.
Premwati suffered from tuberculosis for several years and died on September 24,1951.
The appellant produced a number of witnesses to prove that as she had grown very weak she requested that the adoption take place that very day and that she was able to participate in the ceremony of adoption.
The desire to adopt a son companytinued and it was in the circumstances only natural to companysider one of the sons of Seth Jamnadas, the only other brother of the father of Jagannathdas.
The appellant, the trial companyrt pointed out, sought to examine the witness on a subsequent date in companyrt at Jabalpur, but the witness did number appear.
The case of the appellant was supported by oral and documentary material evidencing that while he had attended companylege in the morning on that day he did number do so in the afternoon, thereby lending credence to the appellants case that on companying to know from Premwati that she intended the adoption of the appellant that very day Sunderbai, the appellants mother, sent for him at mid day from his companylege.
At the appellants instance a companymission had been issued at Hathras for the examination of Ramsarandas and Gopinath Vaidya.
On June 22, 1960 both witnesses were present before the Commissioner at Hathras, but the Commissioner took an unexpectedly long time in examining Ramsarandas on that day, and on the next day, to which he had deferred the examination of Gopinath Vaidya, he left town suddenly to see his sick son.
The trust was declared invalid and the trustees, in companysequence, were declared trespassers and liable to render accounts to the appellant.
Much capital was made by the companytesting respondents of the fact that the appellant had number examined Gopinath Vaidya to establish the companydition of Premwatis health and the fact of adoption on September 24, 1951, but the trial companyrt, in the companyrse of its judgment, has referred in some detail to the appellants efforts to have the evidence of that witness recorded.
Ever since the inception of the trust the trustees have remained in possession of the estate.
He reserved the right to revoke the trust, but subsequently by a further document dated July, 14, 1952 he relinquished that right.
The appellant, who belongs to a prominent family of Jabalpur, instituted a suit, out of which the present appeal arises, for partition and separate possession and for rendition of accounts.
S. Pathak, J. This is a plaintiffs appeal on a certificate granted under Sub clause a of Clause 1 of Article 133 of the Constitution by the High Court of Madhya Pradesh.
