JUDGMENT

KOSHAL, J.— ( The facts giving rise to these two cross appeals by special leave may, with advantage, be stated with reference to the following pedigreetable:-

The litigation between the parties started with Suit No. 1912 of 1958 instituted by Trilok Chand for partion of properties detailed in Schedules A, B and C forming part of the plaint. His case was that the property described in schedule A had been acquired by his great grandfather Chhitar Mal, that the property detailed in schedule B was jointly acquired by Salag Rams sons Jagannath and Govind Ram, the two of whom constituted a joint Hindu family, and that the property specified in schedule C had once belonged exclusively to Jagannath, son of Salag Ram and that it was from him that it had descended to his widow Smt. Chhoti.

Apart from defendants Nos. 2 to 6 whose names appear in the pedigreetable, Banwari Lal (who is the appellant before us in Civil Appeal No. 1742 (N) of 1969) was arrayed as defendant No. 1 and he has been the real contesting defendant whose claim was based on his adoption by Govind Ram, grandson of Chhitar Mal and on two registered wills, both dated the 25th of September, 1950, purporting to have been executed by Govind Ram and Smt. Chhoti respectively. He claimed that the two testators had bequeathed their entire property to him, that the property covered by schedule A was acquired not by Chhitar Mal but by Salag Ram and that the one embraced by schedule C had been purchased by Smt. Chhoti with her stridhana and was never the property of her husband Jagannath. He therefore claimed to be entitled to all the properties in suit exclusively for himself, it being common ground between the parties that those properties were the subject matter of the two wills.

The plaintiff denied the adoption set up by defendant No. 1 and challenged the two wills as forgeries.

The trial Court and the first appellate court found that the property covered by schedule A had been acquired not by Chhitar Mal but by his son Salag Ram. There was no contest in relation to the property embraced by schedule B which was therefore treated to have been acquired jointly by Govind Ram and Jagannath as part of their joint Hindu family assets. In relation to the property detailed in schedule C, the trial court held that it had been acquired by Jagannath but the finding was reversed by the first appellate court which found that the acquisition was made by Smt. Chhoti with funds of her own, her husband Jagannath having no interest therein.

On behalf of defendant No. 1 no evidence was led to prove that he had been given or taken in adoption. The trial court therefore held that the adoption had not been proved. In the will of Govind Ram however, there was a recital that defendant No.1 was his adopted son and the recital was considered by the first appellate court to be sufficient to prove the adoption. Both the wills were held to be genuine and legally valid and the suit was therefore dismissed by the trial court and the first appellate court in toto.

In second appeal the High Court upheld all the findings of fact arrived at by the first appellate court except the one relating to adoption. The High Court was of the opinion that the recital in the will of Govind Ram about defendant No.1 being his adopted son was not sufficient to prove the adoption which therefore was held not to have been established. It was further held by the High Court that a half share in the property specified in schedules A and B having descended from Jagannath to Smt. Chhoti as a life-tenant only, she was not competent to will it away and that the plaintiff, along with other members of the family, was entitled to succeed to that half share.

It was vehemently contended before the High Court that even if the wills be taken to be genuine, they would operate only if defendant No.1 was shown to have been validly adopted by Govind Ram because both Govind Ram and Smt. Chhoti had described him as Govind Rams adopted son