JUDGMENT :- This is a first appeal by the plaintiff in a suit for partition and possession of immovable property situated at Jaipur in a locality which is called Chowkri Ghat Darwaza, Rasta Bhaironji Kundigaran, Gali Naiyan.

2. The plaintiffs case was that the houses whose description has been given in the plaint, belonged to his father Manak. About 45 years prior to the date of the institution of the suit (which was filed on 30.10.48 in the court of Civil Judge, Jaipur City), his father had adopted the defendant as his son, because he had no natural son of his own by that time from his first wife. After the death of his first wife, he married another wife, who gave birth to the plaintiff. A few years after, the plaintiffs father got angry with the defendant on account of some undesirable activities on his part and so he turned him out of his house.

The defendant then began residing in another house. The plaintiffs father died on 15-6-37 and after his demise, the defendant took forcible possession of certain movable and immovable properties of the deceased and started harassing the plaintiff in several ways. It was, therefore, prayed by the plaintiff that he, being the legitimate son of his father, should be declared heir to 3/4th of his property and should be put in possession thereof.

3. The defendant admitted in his written statement that the property in dispute belonged to Manak deceased and that he was his adopted son, but he denied that the plaintiff was the legitimate son of deceased Manak. According to the defendant, Manak was not legally married to the plaintiffs mother, but she lived with him only as his keep.

It was further averred that the plaintiff was adopted by one Ganesh and, therefore, he lost all his rights if any, in Manaks property. He also challenged the plaintiffs right to receive 3/4th share of the property of deceased Manak, even in case he was found to be his legitimate son. From the pleadings of the parties, the trial court framed the following 4 issues :

(1) Whether the defendant is a natural son of Manak?

(2) What share the plaintiff is entitled to?

(3) Whether the plaintiff was adopted by Ganesh?

(4) Relief?

After recording evidence of both the parties, the trial court decided issue No. 1 in plaintiffs favour. Issue No. 3 was also decided against the defendant. Regarding issue No. 2, it was held by the learned Civil Judge that the parties being Sudras by caste, the defendant, even though an adopted son of deceased Manak, was entitled to receive one-half share of the property left by him and, therefore, he declared the plaintiff entitled to receive only one-half share of the disputed property and passed a preliminary decree to that effect on 13-10-1953. He also directed the appointment of a commissioner to partition the disputed property half and half. It is against this decree that the present appeal has been filed by the plaintiff.

4. The only point which has been raised by the appellant in this Court is that the trial Court has committed an error of law in following the view prevalent in the States of Bengal and Madras which is based on Dattakachandrika and in not relying upon Dattakamimansa which is followed in the Benares School of law (which applies to Rajasthan) and according to which an adopted son gets only one-fourth share in the presence of a natural son who gets three-fourth share in the fathers property.

The defendants cross-objection is to the effect that the lower court has erred in holding the plaintiff as a legitimate son of Manak deceased. It is also mentioned in the cross-objection that the lower court has wrongly arrived at the conclusion that the plaintiff was not adopted by Ganesh, but this objection has not been pressed at the time of arguments.

5. Before deciding, the appeal, it would be proper to decide the cross-objection, because unless the plaintiff-appellant is found to be a natural son of deceased Manak, there would be no force in his appeal.

6. Therefore, to begin with the cross-o

Click Here to Read the rest of this document