Judgement Key Points

RANAWAT, J.—This is second appeal by Nandkishore and Mst. Birji against the judgment of the District Judge, Kotah, of the 31st of October, 1949, by which the judgment and decree passed by the court of the Civil Judge, Kotah, on the 30th of September, 1947, were set aside and the suit of the plaintiffs was decreed for possession of the disputed property with costs.

2. A suit was filed by Mst. Ramnathi as next friend of her two minor sons Brijbehari, and Bhawani Shanker against Nandkishore and his wife Mst. Briji in the court of the Sub-Judge, Kotah, for recovery of possession of a house of which the details were given in the plaint and which belonged to one Sheonarain who was an uncle in relationship to the plaintiffs. After the death of Sheonarain in January, 1944 his widow Mst. Surja Bai inherited his property as limited owner. She died on the 11th of March, 1945 and after her death Mst. Briji and her husband Nandkishore took possession of the properties left by her in pursuance of a will executed by her during her life time in favour of Mst. Briji. It was claimed by the plaintiffs that as they are the heirs of Sheonarain they are entitled to inherit the property left by Sheo Narain on the death of his widow. The plaintiffs therefore prayed for a decree for possession of the house left by Sheonarain at Kotah. It was also alleged that Srikishan, father of Briji, was also related to the deceased Sheo Narain by blood but he had gone in adoption to another family at Jhalawar and his relations with the deceased had therefore been severed. The genealogical table of Sheonarains family was stated to be as follows:—

Ganesh alias Bakshuram

Onkar Gordhan

Sheonarain

Srikishan(Went in adoption toMannalal at Jhalawar) Badri||

Nathi Briji Brijbehari Bhawani Shanker

Mt. Briji has been married to Nandkishore defendant No. 1.

3. The defendants admitted that the plaintiffs were the sons of Badri and grandsons of Gordhan. It was also admitted by them that Srikishan became an heir of Mannalal at Jhalawar but it was denied that any ceremonies of Srikishans adoption were performed. It was also denied that Gordhan and Onkar, the father of Sheo Narain, were brothers. It was alleged by the defendants that Mt. Suraja Bai, the widow of Sheo Narain, made a will before her death in favour of the defendant No. 2 Mt. Biriji on the 7th of March, 1945 in respect of the properties of Sheo Narain as well as her own.

4. The first court held that Srikishans adoption to Mannalal had not been proved by the plaintiffs and that the defendants had also failed to prove the execution of a will by Surjabai. It was further held that Onkar and Gordhan were real brothers. The suit of the plaintiffs was dismissed on the ground that Srikishan was nearer in degree to the deceased then the plaintiffs and he excluded the plaintiffs from inheriting the property left by Sheonarain. On appeal, the learned District Judge of Kotah held that the adoption of Srikishan to Mannalal at Jhalawar had been sufficiently proved and the suit of the plaintiff was therefore, decreed. The defendants have come in second appeal to this Court. They have not taken their stand on the will of Surja Bai set up by them in the trial court and it is not necessary to deal with that aspect of the case. They have challenged the finding of the lower court above the adoption of Srikishan. The decision of this case hinges on the fact of adoption of Srikishan to Mannalal. If his adoption to Mannalal is held proved the claim of the plaintiffs to the property left by Sheonarain would succeed. In case, the findings on the issue of adoption is otherwise, Srikishan being nearer Sheonarain would exclude the plaintiffs from succeeding Sheo Narain as his heir under the Hindu Law.

5. In this appeal, it has been urged as follows.

(1) that the lower appellate court failed to appreciate the evidence of Srikishan on the point of his adoption to Mannalal. According to Sri Kishan Mannalal died before he was taken to Jhalawar by K

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