Judgment

HEGDE, J.:- This is a plaintiffs appeal by certificate. Plaintiff Daulatrao who died during the pendency of this appeal sought several reliefs in suit No. 5-A of 1955 in the court of the Second Additional District Judge, Amravati. But at present we are primarily concerned with relief No. 1 claimed in the plaint viz:

"That it be declared that defendant No. 3 has no right or title to the property in Schedules A, B and 1/2 share in Schedule D and permanent injunction be issued to him not to interfere with plaintiff s enjoyment and possession of property shown in Schedules A, B and 1/2 share in Schedule D.

2. The relief claimed does not properly bring out the controversy between the parties. The plaintiff really wanted a declaration that he had not adopted the third defendant, Harishchandra and as such the said Harishchandra has no interest in the plaintiff s properties. The third defendant claimed that he had been adopted by the plaintiff on January 5, 1955. The trial Court held that the adoption pleaded by the third defendant is neither true nor valid. The High Court of Bombay (Nagpur Bench) reversing the judgment of the trial court upheld the adoption put forward by the third defendant.

3. There was a controversy between the parties as to whether the plaintiff and his brother Champatrao, Defendant No. 1 were members of an undivided family or whether they were divided. Both the trial court as well as the High Court came to the conclusion that there was partition between the plaintiff and his brother in the year 1948. That conclusion was not even challenged before the High Court. Hence there is no need to go into it.

4. In paragraph 7 of the plaint, the plaintiff had definitely averred that if the court is pleased to upheld the adoption put forward by the third defendant, he does not wish to remain joint with the third defendant. It was further averred therein that in the notice issued by him on January 29, 1955 to Defendants 1 and 3, he had expressed his intention to separate and he had effected severance between him and the third defendant. As an alternative relief he claimed partition of the properties that fell to his share in 1948 between himself and the third defendant. No proper issue was raised on this plea. Evidently the trial court having granted the main relief in favour of the plaintiff did not think it relevant to go into the alternative relief asked for. No arguments relating to that relief appear to have been advanced before the High Court. The High Court has also not considered that question. But in this court Mr. V. S. Desai appearing for the appellants pressed that alternative contention. We shall consider that contention at a latter stage.

5. In order to decide the question whether the third defendant was in fact adopted by the plaintiff on January 5, 1955, and whether the adoption pleaded was a valid one, it is necessary to stage a few more facts. The plaintiff and the 1st defendant Champatrao are direct brothers. They are the sons of one Jairam. The plaintiff had two wives Mankarnika (Defendant 4) and Deokabai (Defendant 5). He had no sons. But he had a daughter by name Vatsala (Defendant 6). This daughter had a son and a daughter. The plaintiff had also a mistress by name Savitri, who was defendant No. 7 in the suit. Champatrao had three sons. Abarao (Defendant 2), Harishchandra (Defendant 3) and Vasant (Defendant 8). Vasant had been adopted by one Khushalrao Deshmukh.

6. The case for defendants 1 to 3 is that the plaintiff adopted defendant No. 3 on January 5, 1955 at Amravati in the compound of Dr. Mudaliar s nursing home. Thereafter a photo was taken. A deed of adoption was also written up on that day and registered on January 7, 1955. The plaintiff and Defendants 4, 5 and 6 denied the adoption pleaded. According to them the plaintiff had a paralytic stroke sometime in the year 1954. At that time he was treated by Dr. Mudaliar but he was nursed by his brother Defendant No. 1. In about the beginning