Har Lal, etc. vs Ganga Ram, etc.

Kapur, J.—This is a second appeal against the appellate decree of Mr. Maharaj Kishore, District Judge, Hissar, confirming the decree of the trial Court.

A reference to the undermentioned pedigree table will show the relationship of the parties:

Gordhan | ________________________________________ | | Bhola Raja Ram | married to Mt. Nanho _____________________________ who adopted Hazari. | | | Hazari Chet Ram Rati Ram

Plaintiffs are the descendants of Rati Ram and Chet Ram and Defendants Nos. 1 to 4 are the descendants of Hazari. The Plaintiffs'' suit is that Hazari was adopted by Raja Ram''s widow, Mt. Nanho, and therefore the estate which had vested in him before the adoption must be taken to have been divested. Both the Courts below have found that according to custom the estate which has vested in a son after the death of his father does not get divested on his adoption into Anr. family and it is this question which. has to be decided in the present appeal.

The adoption of Hazari took place as long ago as the year 1895. At that time his real father Bhola was dead and he had already inherited one-third share of the estate of his father. The general rule is given in a judgment of the Lahore High Court Changa v. Jai Lal AIR 1924 Lah 480, where it was held that according to Hindu Law or custom an adopted son was not deprived of the estate which he had inherited before his adoption unless a contrary custom was proved. In the present case the Plaintiffs have tried to set up a special custom and in support they have produced four Witnesses. (After considering evidence his Lordship proceeded:) On this evidence it is very difficult to hold that the special custom has been proved that an estate which has vested in a person who is subsequently adopted is divested as a result of his adoption.

Mr. Charanjiva Lal Aggarwal then submitted that there was really no custom on the point and therefore the parties were governed by Hindu Law and he relied on a para in Mulla''s Hindu Law at p. 569, where it is said that according to Bombay High Court where property:

has vested in a person as heir of his father and such person is subsequently adopted into Anr. family he loses by adoption his right in the property which he inherits on the ground that this property is the estate of his natural father.

But the Calcutta Court has taken a different view in Rakhalraj Mondal v. Debenra Nath AIR 1948 Cal. 356. In that case it was held that a son given in adoption. would not be divested of any property of which he had become an absolute owner by inheritance prior to his adoption and the law is the same in both Mitakshra and Dayabhaga. In my opinion, the better view seems to be that which was followed by Calcutta. Estates which have vested ordinarily do not get divested by adoption and I cannot see how the property which has already vested could be divested, and the view of the Bombay High Court which is relied upon by Mulla seems to be opposed to the view taken by the same Court in Mahableshwar Narayan v. Subramanya'', 47 Bom 542, and by a later case Manakbai v. Gokaldas Ramdas'', 49 Bom 520.

I am therefore of the opinion that neither under Hindu Law nor under custom can an adopted son be divested of the estate which has already been vested in him before his adoption.

There was a previous suit between the parties but the question now raised was not taken there and that would be ''res judicata'' under Explanation 4 of Section 11 of the Code of Civil Procedure, and in the Court of first instance it was admitted by the Plaintiffs that the previous judgment operated as ''res judicata.'' In view of this finding I fail to see how the present suit could proceed at all.

For the reasons given above I am of the opinion that the District Judge has come to a correct conclusion and rightly dismissed the appeal of the Plaintiffs. This second appeal fails and is dismissed with costs throughout.