C.B. Bhargava, J.
1. This appeal by the plaintiff and directed against the judgment and decree of the Senior Civil Judge No. 1. Jodhpur. dated the 11th December, 1962. involves a question of unusual character for decision.
2. The parties to the case are known as Bhagats that is offsprings of dancing girls. Chaterdas and Girdharidas were real brothers, the former being the elder one. Chaterdas had only one son that is Dhansukhdas the plaintiff. Plaintiff's case is that on Migsar Vadi 1st Smt. 1954. corresponding to 25th November. 1897 he was adopted as Dwvamush-yayana son by Girdharidas whose first wife had died about a year after the marriage and since then the latter gave UP the idea of remarrying and adooted an attitude of renunciation. However, near about Smt. 1962. he married Mst. Sigrati and from her a daughter named Ramrakhi who is defendant No. 1 was born. Defendant No. 2 is the son of Ramrakhi. Girdharidas and Chaterdas remained joint till Jeth Sudi 15. Smt. 1987 when they divided their properties and started living separately. Plaintiff being the son of both brothers, used to live with both of them as their son. On 12-9-1949. under the influence of respondent No. 1 and her mother. Girdharidas made a gift of his properties mentioned in para 6 of the plaint in favour of respondent No. 1 and her son respondent No. 2 and executed a registered document in their favour. Girdharidas died on Posh Sudi 8 Smt. 2006 (correspondent to 27th December 1949 and his last rites were performed by the plaintiff. Plaintiff instituted a suit for cancellation of the said gift-deed but it was dismissed by the trial court on 16-10-1958 on the ground that no consequential relief for possession was prayed. Hence the plaintiff instituted the present suit on 1-9-1959 for recovery of the properties gifted by Girdharidas in favour of the respondents.
3. The suit was contested by the respondents and plaintiff's status as Dwyamushvayana son of Girdharidas and the fact of his adoption in Smt. 1954 was denied. It was stated that Girdharidas at the age of 16 years had married one Mst. Anandi in Smt. vear 1954 but the latter died in Samwat Year 1955. On her death. Girdharidas married Mst. Sigrati in 1956. It Was denied that Girdharidas bad given up the idea of re-marrying or had adopted an attitude of renunciation. It was also denied that any agreement regarding the plaintiffs adoption was executed in Smt. 1954, and if such document was in possession of the plaintiff it was false and fabricated. It was also stated that Girdharidas being a minor in Smt. 1954 was incompetent to enter into any contract and the plaintiff too was not even born on the alleged date of adoption. It was also stated that Girdharidas and Chaterdas had separated in Smt. 1965 although a division of immovable property took place in Smt. 1987. It was admitted that Girdharidas made a gift of the disputed property in favour, of the respondents but it was stated that the gift was made voluntarily and not under the undue influence of the respondent No. 1 and her mother. It was stated that the respondents were in possession of the disputed properties from the time of the execution of the gift-deed in their favour. It was also stated that the plaintiff never lived with Girdharidas nor did he give any part of his earnings to the latter. It was admitted that the plaintiff had filed a suit for the cancellation of the sift deed but it was stated that the plaintiff had intentionally omitted to sue for the consequential relief of possession and so the present suit was barred under Order 2 Rule 2 C. P. C. Plea of res iudicata and the bar of limitation was also raised.
4. The learned Senior Civil Judge on the pleadings of the parties framed as many as 10 issues but for the decision of this appeal, only issue No. 1 needs be set out:
'Did Girdharidas execute the writing dated Miesar Vadi 1 Smt. 1954 and is the plaintiff Dwvamushvavana son of Girdharidas?'
Learned counsel for the respondents has not pressed his objection regarding the plea of res iudicata. limitation and the suit being barred under Order 2 Rule 2 C. P. C.
5. The question of Dwvamushvavana kind of adoption has seldom been raised before this Court Dwvamushvavana son is the son of two fathers. The Dwvamushvavana son or son of two fathers is a modern relic of the old but now obsolete institution of Nivoe. 'It has passed through four stages. In the first stage, he was the Kshetrai son of the wife who belonged both to the begetter as well as to his mother's legitimate husband, the rule being that if any one sows on my land, he shares the crop with me. In the second stage he was the son of Niyog by a relation or a priest appointed to procreate him on the wife. In the, third stage he being the only son of his father, he was permitted to be shared by his brother who would have formerly been entitled to the Niyog company of his wife and who therefore, was entitled to a share in his brother's son even though begotten by him without his assistance. In the fourth and present stage he is merely the son of two fathers whether these be brothers or not and (the only condition required for their joint paternity is that they should, before the adoption, have agreed to treat the son as the common son of both.) Such an agreement may be express or implied.' (See Sir Hari Singh Gour Hindu Code. Third Edition, page 442 para 835). It was further observed in the same book in para 836:
'Though the practice of filial partnerships is on the wane, the reported cases show that it is not yet dead, and amongst certain people as in the case of Nambudri Brahmins of Malabar it appears to be the usual form of adoption. It is practised amongst Lingayats whether the brothers are joint or divided and in the southern districts of the Bombay presidency and is not unknown in Bengal, the United and the Central Provinces, though it is held to be unknown in the Punjab.'
In Narsi Reddi v. Kami Reddi. (1964) 1 Andh WR 261. Gopalakrishnan Nair J. held:
'The Dwyamushayavana form of adoption had long become obsolete in Madras on the East Coast. Therefore, an adoption in that form is not now valid.
Several forms and practices in the ancient texts of Hindu Law have been abandoned in later times. In other words, they have become obsolete. It is idle to seek to revive them now when we have advanced and developed modern social and ethical standards and outlook.
The Dwvamushvavana form of adoption was never recognised by Mitak-shara. The ancient texts or source books of Hindu Law did not recognise Dwyamushvayana now recognised in parts of Bombay State and State of Uttar Pradesh. This form of adoption seems to have been a contribution or gloss of commentators who came much after Vijnaneswara. The only Dwvamushyayana (son of two fathers) snoken of in Mitakshara is the Kshetraia. i.e., the son begotten by a person on the wife of another person. And this species of son is now obsolete in Hindu Law.'
It is true that Kshetraia form of adoption has become obsolete, but Dwvamushvavana form of adoption in the present form has been recognised by many courts. See Vasudevan v. Secretary of State. (1888) ILR 11 Mad 157. Chenava v. Basangavda. (1897) ILR 21 Bom 105 Basava v. Lingangauda. (1895) ILR 19 Bom 428. Kilmadhub Doss v. Bishum-ber Doss. (1869) 13 Moo Ind APD 85 (PC). Uma Devi v. Gokoolanund Das Mahapatra. (18771 5 Ind ADD 40 (PC) and Behari Lal v. Shib Lal (1904) ILR 26 All 472.
6. In the History of Dharma-sastra by P.V. Kane. Vol III at page 685. it has been said:
'A dattak is of two kinds, kevala (simple or ordinary) and dwyamushya-yana (the son of two fathers). When a man gives his only son in adoption to another under an agreement that he is to be considered as the son of both the natural father (janaka or janakapitr) and of the adoptive father (palaka) the son so given is called dwvamushvav-ana.'
7. In the Principles of Hindu Law. Second Edition by R. Sarvadhi-kari it has been stated at page 418 that:
'There is a variety of the dattaka son to whom the name of dwvamushva-yana has been applied. Dwvamushva-yana means the son of two fathers. The term is applicable to an adopted son (dattaka) retaining his filial relation to his natural father with his acquired relation to his adoptive parent. Where a mutual agreement between the natural father and the adopter exists, to the effect that the adopted should be the son of the natural father and the adopter likewise, the son so adopted is tech-nically called a dwyamushvayana.'
Further at pase 420 the learned author also states with regard to Dwyamush-yavana:
'It is only a variety, as we said, of the dattaka form of adoption, and so long the dattaka form of adoption is recognised by Hindu Law. 'the son of two fathers' will receive his rights, shall belong to both as a son, and shall succeed to the estate both of his adoptive and natural parents.'
8. In this case the plaintiff for the proof of his adoption principally relies on Ex. P-2. the adoption deed dated Migsar Vadi 1st Smt. 1954. He has also produced an entry from the Bahi Bhat Ex. P-3 to support his adoption. Oral evidence has also been given to prove the adoption. The defendants, on the other hand, produced oral evidence as well as a large number of documents to show that the adoption never took place nor was any agreement executed by Girdharidas and till the latter's death, plaintiff was never treated or recognised as his son.
9. The learned Senior Civil Judge on a consideration of the evidence before him came to a somewhat contradictory finding. He held that even in the case of Dwyamushvavana adoption, ceremony of giving and taking was essential and because it has not been so proved in the present case, the plaintiff cannot be regarded as Girdharidas' adopted son. He found that execution of Ex. P-2 was proved but at the same time he held that the document was not genuine and appeared to be fabricated. He further found that Ex. P-2 was a unilateral document executed only by Girdharidas and Chaterdas was not a party to it. and hence it was not an agreement between the natural father and the adoptive father. He further found that in Smt. 1954. Girdharidas was a minor and was incompetent to enter into any contract. Further the circumstance that Girdharidas had married Anandi in Smt. 1954 who had died in 1955 further shows that Ex. 2 was a fabricated document. Besides this, the learned Judge found that the various documents produced by the respondents showed that the plaintiff was always treated as a son of Chaterdas and not of Girdharidas.
10. Learned counsel for the appellant has strenuously contended in this Court that firstly the ceremony of giving and taking was not essential in the case of Dwyamushvavana adoption. But even if that be so. it should be presumed from the contents of Ex. P-2 that all necessary ceremonies including that of giving and taking had been duly performed. He points out that once the trial Judge came to the finding that Ex. P-2 was executed by Girdharidas he was bound to hold that the plaintiff was his Dwyamushvavana son, regardless of the subsequent conduct of the adoptive father. Lengthy arguments were addressed on the Question whether the ceremony of giving and taking was essential in this form of adoption or not. But no direct authority was cited either for or against the proposition.
11. It is well settled that the most essential ingredient in adoption is giving of the boy by his natural father and the taking of the boy by the adoptive father with the intention to transfer the boy to the family of the adoptive father. This ceremony is the essence of all adoptions and the law does not accept any substitute for it. In Bhajan Das v. Nanu Ram, ILR (1953) 3 Rai 720 = (AIR 1954 Raj 17) which was a case from Marwar (former Jodhpur State) it was held that
'Under the Hindu Law, the physical act of giving and receiving is absolutely necessary to the validity of an adoption and this is so not only in the case of twice-born classes but also in the case of Sudras. In Marwar (former Jodhpur State) also the ceremony of giving and receiving is absolutely necessary to the validity of an adoption, although no particular form is required as far as giving and acceptance are concerned. All that Hindu Law requires is that the natural parent shall be asked by the adoptive parent to give his son in adoption and that the boy shall be handed over and taken for this purpose.'
12. Learned counsel for the appellant however contends that a mere agreement between the natural and the adoptive father that the boy shall be regarded as a son of both of them is enough to prove Dwyamushvayana adoption and no other ceremony is essential in this kind of adoption. In support of his contention, he has placed reliance upon (1904) ILR 26 All 472 (supra) and Ganpatrao v. Balkrishna. AIR 1942 Bom 193. However, in both the above cases, their Lordships were not dealing with the Question whether the ceremony of giving and taking was essential for Dwyamushvayana adoption or not
13. In (1904) ILR 26 All 472 (supra) there was no dispute about the adoption of Raghunandan Prasad by Naubat Ram according to Nitva Dwva-mushyayana form. There the auestion was whether Raghunandan Prasad's natural mother was entitled to succeed to her son in preference to that of Ban-dhus or Sapindas. A contention was raised in that case that as none of the initiatory ceremonies were performed by the natural father of Raehunandan Prasad, his connection with his natural family was severed, save that he continued to be the son of his natural father for the purpose of inheriting his property and performing his obsequies and that in other respects the relations with his own family were severed, and that he could not transmit the property which he might inherit from his natural father to any member of the fami-1y of that father. Their Lordships on a consideration of various books on Hindu Law and ancient texts on Hindu Law repelled the contention and held that 'the natural mother of a Hindu adopted into another branch of his family by the nitya dwvamushvavana form of adoption does not on account of such adoption, lose her right of succession to her son in the absence of nearer heirs. (An adoption in the absolute dwvamushvavana form depends upon and has its efficacy in the stipulation entered into at the time of adoption between the natural father and the adoptive father and does not depend upon the performance of any initiatory ceremony by the natural father.' This decision is, therefore, no authority for the proposition that ceremony of giving and taking is essential in the case of dwvamushvavana form of adoption. Learned counsel had some mis-understanding about the initiatory ceremony and thought that it also included the ceremony of giving and taking. But that is not so. Initiatory ceremony refers to the ceremony of tonsure and investiture of thread.
14. The following observations of their Lordships may on the other hand suggest that the ceremony of giving and taking is also essential in this kind of adoption:
'In the case before us the gift was a qualified gift. The son was given and accepted in adoption upon the clear stipulation that he should continue the son of his natural father, and hence that his relations with the family of his natural father should not be severed.'
So in that case there was a gift and the boy was both given and accepted. It shows that the ceremony of giving and taking took place and there was further stipulation between the natural father and the adoptive father that the boy be treated as the son of both.
15. In Ganpatrao v. Balkrishna (supra) also the question was about the right of the sons of the person adopted to succeed in the adoptive family and participate in the inheritance of the adopter. Whether the ceremony of giving and taking in such form of adoption is essential was not the point in controversy in that case too. Their Lordships relying upon the decision of the Allahabad High Court in (1904) ILR 26 All 472 (supra) also held:
'The efficacy of the nitya dwyamushyayana would depend upon the stipulation entered into at the time of his adoption and not upon the performance of the initiatory ceremonies such as chuda and upanayana as in the case of incomplete or anitya dwvamushvavana. Therefore, in the case of a nitya dwyamushyayana son whose double relationship depends on an express agreement the question by whom the ceremonies were performed is irrelevant.'
The following observations, however, of Wassoodew J. at page 196 indicate that the stipulation was in addition to the other ceremonies necessary for adoption:
'These intricacies need not be considered, in my opinion, in the present case, for here the adoption has taken place after marriage, that is. after the investiture and the necessary 'sanskaras' and with a stipulation attending the dattaka' ceremoney.' (The underlining is mine)
16. However, in Krishna v. Par-amshri, (1901) ILR 25 Bom 537. Ranade J. while dealing with the question whether a Hindu widow can make a valid gift of her only son in adoption observed:
'The ceremonies prescribed in the Dwyamushvayana form of adoption are the same as in the case of an absolutely adopted son or a Shudha Dattaka. The only addition is of an undertaking or stipulation that the child should belong to both the giver and the adopter.'
These observations coming from a very eminent Judge deserve great weight and respect and in my opinion, clinch the issue. This judement has been quoted by various commentators on Hindu Law in support of the proposition that for dwyamushvayana adoption the forms and conditions are the same as in Dattaka adoption. See Gour's Hindu Law para 837 page 443 (Third Edition). Hindu Law in British India by S.V. Gupte (Second Edition) page 1028. Hindu Law by Sir E. J. Tre-velyan. 1929 Edition, at page 207 and 'Principles of Hindu Law by J. C. Ghose. 1917 Edition at page 733.
17. Since Dwvamushvavana form, of adoption is only a variety of the Dattaka form of adoption, it is essential, in my view, that the ceremony of giving and taking should be proved to have been performed even in this kind of adoption and further it should be proved that there was an agreement between the natural father and the adoptive father that the boy shall be regarded as a son of both.
18. In the present case it is conceded that apart from the document Ex. P-2. there is no other proof that the ceremony of giving and taking took place at the time of the plaintiff's adoption. As earlier stated, learned counsel for the appellant says that the adoption took place long back that is in Section 1954. No direct evidence could have been available to the plaintiff for proving the ceremony of giving and taking and as such it should be presumed on the basis of Ex. P-2 that such ceremony was performed.
19. In this connection, learned counsel relies on ILR (1953) 3 Rai 720 = (AIR 1954 Rai 17). In that case the adoption-deed mentioned that Nanuram had been given in adoption by his father Chhotmal and taken in adoption by Mst. Surai Kanwar. The learned Judge, therefore, observed that:
'In Marwar. in cases where the adoption deed itself mentions that the boy had been given and received in adoption, a presumption would arise that the recitals in the deed have been truly made. But if any party to the litigation can prove circumstances which would show that the physical act of giving and taking could not have been performed as recited in the deed of adoption, then it would be for the party setting up the adoption to prove by positive evidence that the physical act of giving and taking did take place.'
The next question, therefore, arises is whether the plaintiff has succeeded in proving the execution of Ex. P-2 by Girdharidas. In this connection, learned counsel has referred to the statements of Mst. Ram Kanwar. Bhivdas and Mahadeodas recorded in the previous suit between the parties (Exs. P-4. P-6 and P-7) and the statements of the plaintiff P. W. 1. Dharamdas P. W. 3 and Brii Mohan P. W. 4.
20. Mst. Ram Kanwar in her statement deposed that she had accompanied her father and had witnessed the adoption of plaintiff by Girdhari Dass. She was 11 or 13 years age at that time. At the time of adoption Gur was distributed and turban was tied. She does not speak of the ceremony of giving and taking nor does she say about the execution of any writing at that time.
21. Similarly Madhodas has deposed that plaintiff was adopted by Gir-dharidas when he was 7 or 8 years old. Ceremonies were performed at the time of adoption. He also does not say about the fact of giving and taking nor about the execution of any writing. On the other hand, according to him plaintiff was 7 or 8 years of age at the time of adoption when plaintiff himself says he was of four years.
22. Bhivdas has stated that Gulab Das was his uncle who expired in Smt. 1975 and that he was acquainted with his handwriting as he had seen him writing. He identified Gulab Dass' signature on Ex. P-2 which was marked as Ex. P-1 in the previous suit in which statement Ex. P-6 was recorded.
23. Dharamdas P. W. 3 deposed that he could identify his father Tolaram's signature and that there was the attestation of Tolaram on Ex. P-2 at A-B. Tolaram had died in Section 1970. Evidence of the above two witnesses does not prove the execution of Ex. P-2 by Girdhari Das because none of them has identified the signatures of Girdharidas on it.
24. Besides the plaintiff. Brii Mohan P. W. 4 is the only witness who has identified Girdhari Dass' signature on Ex. P-2. He has deposed that he had seen Girdhari Das reading and writing and he could identify his signatures. He has stated that Girdhari Das was distantly related to him as maternal uncle.' In cross-examination he has stated that Girdhari Das got his application written by him. He got one or two applications written by him for presentation in the Municipality but he could not say in what fear he had written these applications. Girdhari Das also sot written from, him rent notes in favour of his daughter Ramrakhi and that he had no writing of Girdharidas in his possession- Much reliance is placed on behalf of the arjpel-lant on the above evidence and it is argued that Ex. F-2 is an old document and the scribe and its attesting witnesses are all dead and in such circumstances its execution should be held proved on the evidence of this witness and that of P. W. 3 Dharamdas and Bhinvdass who have identified the signatures of the attesting witnesses of Ex. P-2 who had died lone back. This however is not an inflexible rule of law and is a Question of fact to be decided by the Court in the circumstances of each case.
25. So far as the evidence of Brij-mohan is concerned, it is no doubt admissible to prove the execution of the document; but what value should be attached to it is the real question. He admits to have written one or two applications at the instance of Girdharidas and at what distance of time such applications were written, he was unable to say. Therefore much reliance cannot be placed on the evidence of a non-expert witness about the identification of the executant's signature, who had only seen the executant writing only once or twice, more so in this case when there is the question of the identification of the signature which are alleged to have been subscribed before the witness was born. Girdharidas the alleged executant of Ex. P-2 must have been 16 to 18 years of age in Smt. 1954 and it is difficult to say that he had reached graphic maturity in his handwriting at that time. We also do not know after how many decades from Samwat 1954 this witness saw Girdharidas writing and what variation had taken place in his handwriting during that interval of time. It is urged on behalf of the respondent on the basis of the statement of Mst. Sigrati, widow of Girdharidas Ex. A26 recorded in the previous suit that Briimohan was not on speaking terms with her and belonged to the rival group in their community. But this argument cannot be accepted because no such questions were put to the witness. However, the witness does not appear to be disinterested inasmuch as he stated that plaintiff used to live with Girdharidas who regarded him as his son. This part of the statement is not true as the discussion of the other evidence hereafter would show.
Name of the scribe is significantly absent from the document. Plaintiff's own statement regarding his own knowledge of the document is most damaging. He has stated that his father Chaterdas died on Man Sudi 8 Smt. 2000 and a few months before his death, he gave him some papers which included Ex. P-2 and then he came to know of it. That is to say that for a long period of 46 years plaintiff himself did not know of the existence of Ex. P-2 and for the first time came to know of it in Samwat 2000. Even then he did not show it to Girdharidas who had in the meantime separated from Chaterdas divided both movable and immovable property and obtained its pattas in his own name alone and even denied having any son. It is difficult to accept that the plaintiff and his father Chaterdas would have allowed all these hostile acts to be done by Girdharidas if the alleged agreement Ex. P-2 was in their possession.
It is frankly conceded on behalf of the appellant that there is not an iota of evidence of subseauent conduct of the plaintiff, his father Chaterdas or Girdharidas to corroborate the alleged adoption. The contention, however, is that in the case of Dwyamushvavana adoption, subseauent conduct of the parties is not material because the boy remains the son of both the natural father and the adoptive father. To some extent it may be true but acts which are inconsistent with the fact of adoption cannot be overlooked.
26. Before I proceed to consider the subseauent conduct of the parties. I would like to advert to one more document which has been produced on behalf of the plaintiff and that is Ex. P-3 an entry from Bhai Bhat. This document was sought to be proved by the evidence of P. W. 2 Ramdas. He has stated that Ex. P-3 was in the handwriting of Baldeo who was his grand-father's brother. He has admitted that the entry did not bear any date or month. He has also admitted that he did not see Baldeo writing. He has also admitted that the particular portion C-D of Ex. P-3 which pertains to the plaintiff's adoption by Girdharidas has been written in between the two lines. The trial court has also made a note of this fact See order-sheet dated 11-8-61. Thus there is a clear interlineation in Ex. P-3 to support the case of plaintiff's adoption. Therefore if the plaintiff is capable of producing forged documents in support of the alleged adoption, it would be very hazardous to act upon the meagre evidence produced on his behalf regarding the execution of Ex. P-2 and to hold it as proved.
27. The defendant at the earliest Stage in his written statement had stated that Girdharidas's first marriage took place in Smt. 1954 with Mst. Anandi who died in Smt. 1955 and his second marriage with Mst. Sigarti took place in Smt. 1956. But on behalf of the plaintiff no evidence was led to controvert these facts. Mst. Siearti in her statement Ex. A-6 has said that her marriage with Girdharidas took place in Smt. 1956 twelve months after the death of his first wife which shows that Girdharidas' first wife must have been alive in Smt. 1954 and as such there could be no occasion for him to take the plaintiff in adoption and to execute the agreement Ex. P-2.
28. Girdharidas has given his age as 70 years in the impugned gift-deed which was executed in 1949 and in his deposition Ex. A-15 which is admitted on behalf of the plaintiff and was recorded on 30-4-46. he gave his age as 60 vears while in Exs A21, A22 and A23 recorded in 1931. he gave his age as 50 years-Even if he was 70 Years of age in 1949. he must have been about 18 vears in 1897 and it does not stand to reason that at that young as he might have thought of taking any boy in adoption.
29. On behalf of the defendant. Jankilal. D. W. 1 and Bachrai D. W. 6 have denied Girdharilal's signature on Ex. P-2. No doubt Jankilal is an interested witness being the husband of respondent No. 1. At the same time, he is the son-in-law of Girdharidas and is also the brother-in-law of the plaintiff. Similarly Bach Rai has of course admitted that he has been helping the respondents in the litigation; but he is well acquainted with the hand-writing of Girdharidas because he was acting both on behalf of Girdharidas and Chaterdas is the Patta proceedings. Evidence of those witnesses as regards the identification of Girdharidas' signatures cannot be lightly brushed aside and in my view is sufficient to rebut the evidence led on behalf of the plaintiff on this count. Where there was a serious dispute about the execution of Ex. P-2 which was the principal document to support the plaintiff's case of adoption, plaintiff should have got the deceased's signatures on Ex. P-2 compared with the other signatures which were available on the record by some hand writing expert. But no such attempt was made.
30. Now I proceed to consider the documents produced on behalf of the defendants which throw considerable light on the matter in controversy. Ex. A-l dated Baisakh Sud Smt. 1965 corresponding to 24th April. 1909 is a deed of partition of movable properties executed between Chaterdas Dhansukhdas on the one side and Girdharidas on the other. This document is admitted by the plaintiff and it shows that Dhan-sukhdas plaintiff was a Party to the transaction of partition between the two brothers. It further shows that if Dhansukhdas the only son of Chaterdas had been adopted by Girdharidas in Smt. 1954 as alleged by the plaintiff, there could have been no question of dividing the movable properties between the two brothers because ultimately their common son Dhansukh Dass was to succeed to both of them. Ex. A-2 D/- 28-5 31 is the deed of partition of immovable properties between Chaterdas and his brother. This document is also admitted by the plaintiff. After the immovable properties had been partitioned between the two brothers, both of them took separate proceedings for preparation of pattas. Exs. A-3 and A-4 are the statement of Chaterdas dated 23-10-31 in which he made a request that patta be issued in his own name and that of his son Dhansukhdas and his two daughters. Exs. A-9. A-10 and A-11 are the pattas issued in the name of Girdharidas alone of the Properties which had come to his share in partition.
31. Ex. A-12 is a receipt dated 21st April. 1942, executed by Hans Kanwar daughter of Chaterdas in favour of Girdharidas regarding the ornaments which she had entrusted to him. This receipt is attested by the plaintiff. On behalf of the respondents it was pointed out that if the plaintiff had been the adopted son of Girdharidas he would not have got the receipt attested by him. But he was asked to attest it because he was the brother of Hans Kanwar and son of Chaterdas so that no objection might be taken about the return of ornaments to Hans Kanwar.
32. Ex. A-13 only shows that Bach Rai D. W. 6 was a Perokar of the plaintiff as well. Ex. A-15 is the statement of Girdharidas which is admitted on behalf of the plaintiff which shows that the relations between the two brothers were cordial till then and in this statement Girdharidas had also supported the case of Chaterdas for issuing pattas of the properties in his (Chaterdass') name and in the name of his son and two daughters as was desired by him. Exs. A-21. 22 and 23 are the statements of Girdharidas dated 3-9-31 in the patta proceedings in which he has clearly stated that he had no son. These statements were not admitted on behalf of the plaintiff but the trial court took them on record and marked them saving that they did not require any proof as would be clear from the order-sheet dated 4th July. 1961. During the course of arguments it was contended on behalf of the appellant that these statements had not been duly proved. But it appears that attempt was made on behalf of the defendant to prove that Exs. A-21, 22 and 23 were the statements of Girdharidas deceased. This will appear from the statement of Bachrai D. W. 6. from whose cross-examination it also appears that the attention of the witness was drawn to the statements to show whether this fact that he had no son was contained in it or not. But on a reference to his statement, it was found that it did contain such statement. It also appears that the file containing the original statements was also summoned and brought before the Court.
33. Having regard to all these circumstances, it seems to me that while Bachrai was under examination, the original statements were put to him by the counsel for the plaintiff and it was found that all of them contained this statement that he had no son. In 1931 there was no occasion for Girdharidas to deny the plaintiff's adoption if that had been a fact, because as stated earlier till 1946. relations of Chaterdas and Girdharidas were quite cordial.
Besides this there is the statement of Mst. Sigarati widow of Girdharidas Ex. A-26 wherein she has denied the adoption of the plaintiff by her husband and has also denied that the plaintiff ever lived jointly with her husband or that he ever save any part of the income to her or her husband. Mst. Sigrati may not have personal knowledge of the events which took place before her marriage with Girdharidas in Smt. 1956: but she was quite competent to depose about the facts which took place after her marriage. She has completely denied that the plaintiff was ever treated as a son of Girdharidas.
34. There is one more fact which has been brought out in evidence on behalf of the respondents by the production of Ex. A-27 and Ex. D. W. 3/1 to D. W. 3/4 that the plaintiff was always treated as a member of the family of Chaterdas by his community while Girdharidas and his wife were treated as members of a separate family. All these documents, specially the deed of partition Ex. A-1 and the statements of Chaterdas Exs. A-3 and A-4, pattas Exs. A-9. A-10. A-12 statements of Girdharidas. Exs. A-15, A-21, 22 and 23 and the statement of Smt. Sigarati Ex. A-26 all unambiguously show that the plaintiff was never treated as an adopted son of Girdharidas. On the other hand, they establish facts which are inconsistent with the fact of plaintiff's adoption.
35. Plaintiff's own statement in this connection is very significant. He has admitted that so far he had described his father's name as Chaterdas and never as Girdharidas. That no rent-note of Girdharidas' house was executed in Ms name. On the death of Girdharidas. Paeri was not tied on his head. After the death of Girdharidas. Kam-rakhi his daughter had been recovering rents of his houses. He also admits that he was President of Hanuman Balmitra Mandal and that there was kept a list of each member of their community's family and in that list in Girdharidas' family he and his wife were only shown, that he had distributed Thais only on the death of Chaterdas and not on the death of Girdharidas. This also confirms the conclusion that the plaintiff was never recognised as a son of Girdharidas.
36. Having regard to the entire evidence which has been discussed above and the circumstances appearing in the case, I am satisfied that the plaintiff has not succeeded in proving the execution of Ex. P-2 or the ceremony of giving and taking at the time of the alleged adoption.
37. The other contention of learned counsel for the appellant that the fact of giving and taking may be presumed on the basis of Ex. P-2 also cannot be accepted. The document Ex. P-2 appears to have been executed by Girdharidas in favour of Chaterdas and does not contain any admission by Chaterdas of his giving his son Dhansukhdas in adoption to Girdharidas. It was also not signed by him. So there is no recital in the document itself about the fact of giving the boy by the natural father to the adoptive father.
38. The appeal has therefore, no force and is accordingly dismissed with costs.