Guman Mal Lodha, J.
1. This is a plaintiff's civil second appeal against the judgment rejecting the first appeal and affirming the dismissal of the suit.
2. Before I proceed to consider the principal objection made by Shri K. K. Sharma, the learned Advocate for the plaintiff appellant, I would like to mention, in brief, the facts showing the genesis of the dispute and the important facts of this case as per its history so far.
3. The appellant filed a suit for redemption of mortgage of a Nohra which was mortgaged by deceased Mst. Jagannathi w/o Ram Chandra Brahmin with deceased Shri Bhanwar Lal s/o Chhaganlal Mahajan as alleged in the plaint. She had a son, Vishnu Dutt who has also died. The plaintiff appellant is the adopted son of Vishnudutt and is the sole heir of Vishnu Dutt. The mortgagee Bhanwar Lal has also died and the defendants are his sons and are in possession of the property.
4. The learned trial court held that the mortgage was not proved and, therefore, decided issue No. 1 that the plaintiff appellant was the heir of Ram Chandra and Vishnudutt. The trial Court decided this issue in favour of the plaintiff and held that the plaintiff was the adopted son of Vishnu Dutt and was the only heir of Ram Chandra and Vishnu Dutt. The issue was decided in favour of the plaintiff. The learned trial court, on the basis of the finding on issue No. 1 that the mortgage was not proved, dismissed the suit.
5. The appellant went in first appeal before the court of the District Judge, Bundi which, was decided by the Additional District Judge Bundi vide the impugned judgment dated 16-4-1974.
6. So far as the issue No. 1 is concerned, the learned first appellate court reversed the finding arrived at by the trial court and held that the mortgage was duly proved. It was also held that the plaintiff appellant has proved that the disputed Nohra is mortgaged with the defendant for Rs. 125/- on the basis of the above finding, it reversed the finding of the trial court on this point. The learned first appellate court, however, held that the plaintiff appellant was at the time of adoption married and, therefore, relying on the principles of the Hindu law by D.W. Mullah P. 650, 12th edition, held that, as it has come on record that the plaintiff was married at the time of adoption he could not be legally adopted and, therefore, the adoption was held to be invalid and the plaintiff has no right to maintain the suit. Hence this second appeal by the plaintiff before me.
7. Shri K.K. Sharma, the learned Advocate, has streneously argued that the defendant in pleadings did not take the objection of validity of adoption, on the ground that the plaintiff was married at the time of the adoption and, therefore, he could not have been adopted.
8. Shri Sharma pointed out that no issue was framed, in this respect, and unless an issue is framed, the first appellant court was not justified in treating the adoption to be invalid.
9. In this respect Shri Sharma relied upon the judgments reported in AIR 1945 Nagpur 60, wherein it was held as under:
A party relying on an adoption need only plead the bare fact of adoption and then the law may infer that all that was legally necessary and essential for the validity of adoption was duly performed and that a bare denial is a denial of adoption and not of its legal validity
Again, he relied upon the decision reported in AIR 1957 Madhya Bharat 179, wherein it was held:
The defendants did not in the written statement assert that the adoption was invalid in law and state the ground of invalidity. Their plea was of bare denial of the adoption. No issue was struck on the point whether the plaintiff was validly given in adoption or whether Raja Bhai had obtained the necessary permission.
10. Shri Sharma further placed reliance upon the decisions reported in AIR 1953 Nagpur 230(b), AIR 1945 Nagpur 60 and AIR 1941 Patna 77(d). Shri Sharma laid special emphasis on the principles laid down in the decision of Ganasahaya v. Lakh Raj Singh AIR 9 All. P. 253 wherein it was held as under:
The adoption took place as long ago as 1866 it has ever since been recognised to be valid and the plaintiff has ever since been in possession of his adoptive father's estate. Relying on Raja Haimun Chull Singh v. Koomar Gunshyam Singh WE (PC) 69 wherein the court held, that it may also be admitted on the assumption of the proof of undisputed possession for a long space of time that every presumption of fact should be made in favour of the validity of the act by virtue of which it took place, and thus the onus of proving those circumstances which render it invalid in point of law, if the nature of the case requires such proofs, ought to be on the other side. The other side upon whom the burden of proving the invalidity of the plaintiff's adoption would rest, is the defendant appellant, and though the question of law, I think the dictum of the Lords of PC is wide enough to be applicable to the case, and that because the appellant has failed to show undoubted authority against the validity of the plaintiff's adoption, we must hold the adoption to be valid.'.while on the one hand in the written defence, no objection to the validity of the plaintiff's adoption on the specific ground of the rigid limit of years was taken in the court below, on the other hand the evidence of Narayan Singh the natural father of the plaintiff, coupled with the action of Chandan Singh has a very strong tendency to show that no such rigid limit of age is observed by the Thakur Chhatriyas to which the parties belong.
11. Unfourtunately, no one has appeared to oppose this appeal in this Court. I have kept the judgment reserved after hearing the arguments but nobody turned up and, therefore, I got the case listed a in the Court under the expectations that some one may appear against this Court on behalf of the respondents. However, the situation remains the same, as even today no one appeared.
12. In view of the above, I have considered the question, whether I should examine the validity of the objections of the appellant's counsel, regarding the absence of pleadings. It is well known that normally under the Hindu law a married boy cannot be adopted but Shri Sharma has tried to show that the Hindu texts have allowed it. He has referred to the Hindu law by Gopal Chandra Sarkar Shastri, 6th Edn. Shri Sharma has also referred to the following quotations from Duttak Chandrika in Sanskrit verse:
1firqxks=s.kk ;% iq=% laLd`r Ik`fFkoh;rs A
vkpwMkUr u iqu% l iq=rk ;kfr pk;Ur% AA
2 pwMk;k ifM laLdkjk futxks=s.k oS d`r% A
nkr|kLru;kLrs L;qju;;k nkl mPprs AA
3 ifM L;kr~ d`ra laLdkjks ifM okukfr 'ks'kok% A
xzg.ks iP;kn`o'kkZr~ iq=sf'B izFke pjsr~ AA
13. Duttak Mimansa quotes this passages of Kalika puran as under:
14. The above finds place in the decision reported in AIR 1944 Cal 256, and have been discussed in Kane's Dharamshastra Vol.III page 679.
15. Shri Sharma has placed reliance upon the decision in ILR 10 Bombay 80. Referring to the other decisions, at page 8, it was held that the judgment in Laxmana's case(12 Bombay High Court Reports 364), however, distinctly upholds the doctrine that amongst Sudras or Brahmins an adoption is not invalid merely because there is no prohibition for adoption of a married son.
16. I would not like to enter into the above discussion and hold that whether the submissions of Shri Sharma which are further elaborated in his written arguments by the various decisions, are tenable, so far as the question, whether the married boy can be adopted amongst the Hindus, is concerned, and more particularly, amongst Brahmins to which the litigants in the instant case belong.
17. In the interest of justice, I feel that such an important question should not be decided when shri Sharma, himself, objects to it without specific objection in pleadings.
18. Since I am inclined to accept the objection made by Shri Sharma, I would like to allow an opportunity to both the parties to lead evidence if any in case the defendant wants to plead on fact that the married son can not be adopted amongst Brahmin sect to which the litigants belong in the instant case.
19. Before doing so both the parties would be allowed two months time by the trial court after receipt of the record to amend the pleadings in a suitable manner to highlight and raise objection regarding this particular point.
20. The defendants would be at liberty to amend the pleadings to show or plead that the adoption in this particular case was invalid on the ground of marriage or any other grounds. The plaintiffs would be at liberty to rebut the above on any grounds, what so ever including the grounds that, there is custom of adoption of married boy and it is permissible amongst the parties' casta or, that there is custom of this nature, that even though in the alternative it is not permissible then also, it cannot be set aside on the ground of the invalidity after such a long time. The above only are illustrations Which can be taken and the plaintiff would beat liberty to take all the objections also.
21. The result of the above discussion is the the judgments of both the lower courts are set aside on all the points but so far as the pleadings and evidence are concerned, fresh pleadings would be limited to the adoption and its invalidity and objections.
22. Since the respondents are not present, the trial court would issue a notice to them after receipt of the record for amending the pleadings and informing them of this judgment.
23. In the net result, this appeal is allowed without any order as to costs and the case is remanded back to the trial court with the above directions for proceeding afresh.