A deed of adoption does not make a testamentary disposition of property in favor of the adopted son unless there is an independent testamentary disposition of property in his favor.

D.K.Mahajan, J.

1. This second appeal is directed against the concurrent decision of the Courts below dismissing plaintiffs suit.

2. The plaintiffs are the collaterals of the last maleholder, Sunder Singh. The defendant claims to be the adopted son of Sunder Singh. He is the son of the Natha Singh. The trial Court held that Sunder Singh had adopted Bhag Singh defendant and in this view of the matter dismissed the plaintiffs suit for possession of the property left by Sunder Singh. On appeal, the learned Senior Subordinate Judge reversed the finding of the trial Court as to the factum of adoption. On consideration of the evidence, the learned Senior Subordinate Judge came to the conclusion that, in fact, the defendant had not been adopted by Sunder Singh. In support of this finding, the learned Judge relied upon Exhibit P.9 a registered will executed by Sunder Singh in favour of the plaintiffs. In case, as alleged by the defendant, he had been adopted, there was no reason why Sunder Singh would have made the aforesaid will. Moreover, after the death of Natha Singh, the natural father of the defendant, he succeeded to his estate. If the defendant had been adopted by Sunder Singh, he would not have succeeded to his fathers estate. Another fact, that was taken into consideration was that the defendants mother did not appear in the witness-box. In any case the finding that there was no adoption, to support the case of adoption of the defendant by Sunder Singh, being a finding of fact and being based on evidence, is binding on me in second appeal. It may be that on appreciation of evidence, this Court may have taken a different view. But that is no ground for interference in second appeal. After recording this finding the learned Judge proceeded to dismiss the appeal because he was of the view that the deed of adoption would operate as a testamentary disposition of property and, therefore, even if there was no adoption, the defendant would take under that deed - the deed being treated as a will. It is this finding of the learned Judge which has been vehemently contested by Mr. H.S. Gujral, learned counsel for the plaintiff-appellants. He basis himself on the decision on the Privy Council in Lali v. Murlidhar, (1906)28 Allahabad 488. This decision was considered in Ishar Singh v. Surat Singh, (1923)4 Lahore 356, and Shadi Lal, Chief Justice, while dealing with this case, observed as follows :-

"Now, it has been repeatedly held, vide inter alia, Fanindra Deb v. Rajender Das, (1884) I.L.R. 11 Cal. 463 and Lali v. Murlidhar (supra) that, where a deed contains a testamentary disposition in favour of a person believed to be the adopted son, it is a question for consideration whether on the failure of adoption the gift also fails. The Court had to decide in each case, after considering the language of the document and the surrounding circumstances, whether the adoption was the reason or motive for making the gift or bequest, or whether the mention of the donee or legatee as an adopted son was merely descriptive of the person to take under the gift or bequest and he was to take the property even though his adoption may not be valid. This is the law with respect to cases where there is an express gift or bequest in favour of an alleged adopted son.

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Therefore, the short question that arises for determination is whether the deed of adoption makes a testamentary disposition in favour of the defendant irrespective of the fact whether he was an adopted son or his adoption was valid or not.

2. This takes me to the consideration of the language used in the deed of adoption. The relevant part of the deed on which both the parties rely for their respective conclusions is as follows :-

Ab mazhir bazria tanbiat nama haza iqrar karta hun aur likh deta, hun ke Bhag Singh mazkur mera pisar mutbana hai. Aur meri wafat ke baad meri jumla jaibad manqula wa ghair-manqula ka Bhag Singh mazkur bataur mere pisar silbi he waras va