The validity of an adoption deed and the applicability of the Hindu Succession Act, 1956 and Hindu Adoption and Maintenance Act, 1956 in determining inheritance rights.

Amol Rattan Singh, J.

This is the second appeal of the plaintiff in a suit, instituted by him seeking a declaration that he is the owner in possession of a 2/3rd share in the suit property (fully described in the head note of the plaint), comprising 233Ks and 7Ms of land, falling in village Pajju, Tehsil Loharu, District Bhiwani, and that mutation no.317 dated 12.01.1972, entered in the name of the defendants, be declared to be null and void and not binding on the rights of the plaintiff.

The civil suit instituted on 30.06.1981 having been dismissed by the learned Sub Judge Ist Class, Bhiwani, and the first appeal of the plaintiff against that judgment and decree also having been dismissed by the learned Additional District Judge, Bhiwani, this second appeal has come to be filed.

2. As per the case of the plaintiff, Kalu and Jhabar were brothers, son of Khetu, with Jhabar remaining unmarried. Kalu had three sons and two daughters, i.e. the plaintiff, Jas Ram, Pehlad (defendant no.1), Lekh Ram (not a party to the lis as he is stated to have died earlier, unmarried and issueless), and two daughters, Burji and Khema, i.e. the defendants no.2 and 3, all born from the womb of Smt. Anchi, defendant no.4.

Kalu is stated to have died in the year 1952 and a mutation of inheritance was sanctioned in favour of his three sons, i.e. the plaintiff, Pehlad and Lekh Ram in equal shares, the Hindu Succession Act, 1956, not having come into force at that time, as contended, (and therefore the daughters not getting any share in the property).

Hence, the plaintiff inherited a 1/3rd share of the property left by Kalu, which he continued to be in possession of, as per his averment.

3. It was further contended in the plaint that thereafter, Jhabar, i.e. the brother of Kalu, took the plaintiff in adoption in accordance with law and customs prevalent in the village, in the presence of respectables of the village, as also close relations of the family. An adoption deed was thereafter contended to have been got registered by Jhabar, on 09.09.1958.

The plaintiff lived with Jhabar as his adopted son, also in possession of the whole property of Jhabar, but “somehow or the other mutation of the property of Jhabar could not be sanctioned in favour of the plaintiff”, even though the plaintiff remained in possession of that property after Jhabar died.

4. It was further averred by the plaintiff that he is an illiterate villager, not aware of the fact that a mutation of inheritance was not sanctioned in his favour. It was further averred that he came to know of this fact only in the year 1979, after which the mutation was sanctioned in his favour by the concerned revenue officer.

The plaintiff had therefore earlier also filed a suit for declaration regarding his rights, but that suit was withdrawn with permission to file a fresh one, leading to the filing of the suit in the instant lis.

5. Upon notice issued, the defendants filed a written statement contesting the plaint and alleging that the plaintiff was not the adopted son of Jhabar and in fact he was residing in village Siswala, Tehsil Dadri, as a “Ghar-Jamai” with his father-in-law, and was actually not a resident of village Pajju.

It was further denied that Kalu had died in the year 1952 and in fact, it was contended that he died after the Hindu Succession Act came into effect and as such, the plaintiff succeeded to a 1/6th share in the property of Kalu, because the widow and daughters of Kalu were also entitled to equal shares in his estate.

6. It was further alleged that the mutation of inheritance qua the estate of Jhabar was sanctioned in favour of the plaintiff as also the defendants in the year 1972 and that the plaintiff was very much present at the time when it was sanctioned by the Tehsilar.

Further contending that a fictitious adoption deed was got prepared by the plaintiff, he had also, in the year 1978, in connivance with the village Patwari, got the khasra girdawaries changed in his favour, which