The right to sue for a declaration of adoption accrues only when the adopted son's right is infringed or there is an unequivocal threat of infringement.

Judgement

JUDGMENT:- The unsuccessful defendants 1 to 5 are the appellants. This appeal arises out of a suit for partition in which the plaintiff has also sought for a declaration that he is the adopted son of late Mohan, which has been decreed.

2. The plaintiff and defendants are members of one family. The family genealogy is set out hereinbelow :-

The plaintiff claims to be the adopted son of Mohana and, therefore, wants to partition his one-third share in the entire joint family properties described in schedules A, B and C of the plaint. He further claims that his adoptive father Mohan got his Jyesthansa which he has separately mentioned in schedule G and that he is in possession of the properties set out in schedules D, E and F which may be allotted towards his share in the partition by metes and bounds.

3. Defendant No. 6 did not contest and has been set ex parte. The other defendants jointly filed a written statement. Their case is that even though all the parties are joint in mess and property and are in possession of different parcels of land for the sake of convenience, there has been no partition of the family properties by metes and bounds. Mohana never adopted the plaintiff and, as such, the plaintiff is not Mohana s adopted son and Surya, widow of late Mohana, never executed any document in favour of the plaintiff, and even if there is any such document, the same is fraudulent and not genuine. They deny that Mohan was given any Jyesthansa at any time. So they plead that the suit properties should be partitioned, but the plaintiff should be given 1/8th share as the natural son of late Sujana. They contend that the movables of the joint family were never partitioned previously and as in this suit the plaintiff has not included the movables of the family, the suit is defective and the plaintiff is not entitled to any relief. They admit that the plaintiff is in possession only of the properties stated in schedule A of their written statement and not the properties stated in schedules D, E and F of the plaint. They pray that the suit properties should be partitioned into two equal shares along with movables as shown in schedule B of the written statement and one share should be allotted to defendants 1 to 3 and the plaintiff should be allotted 1/8th share. Though not specifically raised in the written statement, an issue was framed as to if the suit was barred by limitation.

4. In decreeing the suit, the Subordinate Judge rendered the following findings:-

(a) The plaintiff is the adopted son of Mohana.

(b) The suit is not barred by limitation.

(c) The plaintiff is not entitled to get Jyesthansa which has become obsolete in Hindu Law and there is no proof of any custom. In partitioning the suit properties in schedules A, B and C, the properties in schedules D, E and F, of which the plaintiff is in possession, should be adjusted towards his share.

(d) The movable properties having been previously partitioned, the suit is maintainable in the absence of inclusion of movable properties in the hotchpot. There is no partition by metes and bounds of the immovable properties in suit. Claim for Jyesthansa cannot be entertained as the theory of Jyesthansa as understood in ancient Hindu Law has become obsolete.

5. Mr. K.N. Jena, learned counsel for the appellants, raised only three contentions, viz:-

(a) The finding of adoption rendered by the trial Court is erroneous;

(a) The suit is barred by limitation; and

(c) In the absence of bringing the joint family movable properties into hotchpot for partition, the suit for partial partition must fail.

6. I will now take up the question of adoption. As the evidence stands, the adoption appears to have taken place in the year 1932. The evidence of adoption was being led during the second part of the year 1968. So even though the normal rule is that one who seeks to deflect the natural line of succession to property by alleging adoption must discharge that heavy burden, in cases of ancient adoption e