The burden of proving adoption lies heavily on the person claiming to have been adopted, and the evidence must be free from suspicion and consistent and probable.

Bela M. Tirvedi, J.

The challenge in the instant appeal is to the judgment and decree dated 6.12.90 passed by the learned Addl. District & Sessions Judge No.2, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 36/77, whereby the trial court has decreed the suit of the respondent-plaintiff seeking possession of the suit property from the appellant-defendant.

2. The case of the respondent-plaintiff before the trial court was interalia that late Shri Durga Prasad had two sons, named Shri Devkinandan and Shri SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. Ghasi Lal and one daughter named Narayani Devi. The plaintiff was the daughter of the said Narayani Devi. The said Devkinandan and Ghasi Lal died issueless in the year 1974 and 1934 respectively. One Shri Gaindi Lal and Shri Motilal were the owners of the suit, being three storied house, bearing Municipal No. 1368 situated at Gangapole, Jaipur Chowkri (hereinafter referred to as 'the suit property'). The said owners gifted the said property to the said Shri Devkinandan and Ghasi Lal by executing a registered gift deed dated 18.11.32. It was further case of the plaintiff that her parents died at a very young age and she was brought up by her maternal uncle Devkinandan. The said Devkinandan therefore, had executed a Will dated 9.11.74 bequeathing the said property to the plaintiff and he died on 6.12.74. According to the plaintiff since the said Devkinandan did not have any son, his obsequies ceremonies were performed by the defendant, being a distant male relative, and the SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. defendant therefore stayed in the suit property for some days after the death of Shri Devkinandan. The plaintiff subsequently came to know that the defendant was trying to take possession of the moveable properties and he also tried to open the locker of Devkinandan and that he was also trying to occupy the suit property illegally. According to the plaintiff, she being the sole survivor and being the beneficiary of the Will executed by the said Devkinandan in her favour, was the owner of the suit property. When the defendant refused to vacate the suit property and handover the possession of the same to the plaintiff, the suit for possession was filed by the plaintiff.

3. The appellant-defendant resisted the suit by filing his written contending interalia that he was taken in adoption by the said Devkinandan on 2.5.55 after performing rites and rituals as per the Hindu Law, and hence he had become the owner of the suit property after the death of Devkinandan. It was further contended that he had performed all the SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. obsequies as a son would perform after the death of the father and, therefore, was a lawful occupant of the suit property. According to the defendant, the said Devkinandan had not executed any Will as alleged by the plaintiff and even otherwise he was not keeping a good health in his last days. The alleged Will being not free from suspicion, and having been concocted by the plaintiff, the same could not be relied upon. In short, the defendant had urged to dismiss the suit.

4. The trial court after framing as many as 5 issues and appreciating the evidence on record decreed the suit of the plaintiff vide the impugned judgment and decree as mentioned hereinabove.

5. It has been sought to be submitted by the learned counsel Mr. Amod Kasliwal for the appellant that the trial court had failed to appreciate the evidence on record and decreed the suit in utter disregard of the settled legal position as regards the proof of Will. He submitted that as per the settled SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. principles of law, the burden of proving the attestation and execution of the Will heavily lied on the propounder of the Will i.e. the plainti