Judgment

HEGDE, J.:- In this appeal by special leave though number of contentions were taken, we have not thought it necessary to go into all of them as in our judgment High Court s conclusion that Shyam Behari Lal (1st defendant) had been validly adopted by Gopal Das is well founded.

2. The suit from which this appeal arises is for possession of the suit properties on the basis of title. The 1st plaintiff Debi Prasad claims title to the properties as the nearest heir to Gopal Das, his maternal uncle who died in 1934. The 2nd plaintiff is an alienee from the 1st plaintiff.

3. In order to properly understand the controversy in the present case, it is necessary to have before us the family pedigree. The admitted pedigree is as shown below:

4. The common ancestor of the family was Lajja Ram who died in 1874. We are now concerned with the branch of Kedar Nath, the father of Gopal Das who died on February 18, 1934. His widow Bhagwan Dei died on October 19, 1934. The contention of Debi Prasad is that Gopal Das had separated from his family; he died intestate and, therefore, being the nearest heir of Gopal Das, he is entitled to the properties left by Gopal Das. The plaintiff s claim was resisted by the 1st defendant Shyam Behari Lal, who claimed to be the adopted son of Gopal Das. According to Shyam Behari Lal, he had been adopted by Gopal Das in about the year 1892 when he was only an infant. He also resisted the suit on the ground that Gopal Das was an undivided member of his family and therefore the 1st plaintiff in any event cannot claim any rights to the suit properties. His further contention was that the 1st plaintiff was estopped from contending that he was not the adopted son of Gopal Das. Shyam Behari Lal died during the pendency of the appeal before the High Court and his legal representatives are contesting this appeal. Debi Prasad also died during the pendency of this appeal. The trial Court substantially accepted the claim made in the plaint but in appeal the High Court reverted the decree of the trial Court and dismissed the suit.

5. The principal question that we have to decide in this case is whether the adoption pleaded by Shyam Behari Lal is true and valid. According to Shyam Behari Lal, Gopal Das took him in adoption on February 8, 1892, on the very day he was born. He says that very soon after his birth, his natural parents handed him over to Gopal Das and his wife who took him over as their adopted son and thereafter performed the necessary ceremonies according to the custom of their community. He also pleaded that in the community of Gopal Das, there is a custom of taking a child in adoption on the very day of its birth. The plaintiffs have denied both the factum of adoption as well as the custom pleaded.

6. We may at the very outset mention that Shyam Behari Lal had not been able to establish the custom pleaded by him. Nor was he able to adduce any satisfactory evidence about the actual adoption but he has produced considerable documentary evidence to show that Gopal Das was treating him for over a quarter of century as his son. There is also plenty of reliable evidence to show that close relations of Gopal Das including Debi Prasad treated Shyam Behari Lal as the son of Gopal Das both during the lifetime of Gopal Das and also thereafter till about the time the suit from which this appeal arises was instituted. As mentioned earlier Gopal Das as well as his wife died in 1934 and the suit from which this appeal arises was filed in 1946.

7. While considering the question of proof the adoption pleaded, we must bear in mind the fact that the same is alleged to have taken place in 1892 nearly 54 years before the present suit was instituted. Therefore, naturally, it was extremely difficult for Shyam Behari Lal to adduce any oral evidence in proof of that adoption. All the persons who could have known about the adoption are likely to have died. Shyam Behari Lal himself could not speak to that adoption. His evidence is at be