Abhimanyu Misra JUDGMENT
Abhimanyu Misra, J.
1. Plaintiffs are the Appellants. Their case, in brief, is that Maharga Mallik, the owner of the suit properties died about 30 years back leaving a widow Phula and six daughters, Two of the daughters died without any heirs. The two Plaintiffs and Defendants Nos. 2 and 3 are the surviving four daughters. On Phula's death on 16-12-1956, the properties devolved on the four daughters, i.e. Plaintiffs and Defendants Nos. 2 and 3. Defendant No. 1, a stranger to the family is alleged to have trespassed on those lands, and therefore, Plaintiffs prayed for declaration of their title along with Defendants Nos. 2 and 3 to the suit properties and recovery of possession. Defendant No. 1, who alone contested the suit, resisted the claim on two grounds. Firstly, as adopted son of Maharga he succeeded to the suit properties and in the alternative, he asserted his title on the basis of a will executed by Phula on (sic) bequeathing all the properties on him.
2. The trial Court found against the claim of adoption made by Defendant No. 1, but held that he acquired title to the properties under the win executed by Phula in 1949, and accordingly, dismissed the suit. The lower appellate Court dismissed the appeal by the Plaintiffs agreeing with the trial Court's finding that Defendant No. 1 acquired title to the suit properties on the basis of the will executed by Phula and further held that Defendant No. 1 is the validly adopted son of Maharga.
3. There is no dispute that Phula, widow of Maharga succeeded to the suit properties on her husband's death; that Plaintiffs and Defendants Nos. 2 and 3 are the surviving daughters of Maharga and that Phula died on 16-12-1956 after coming into force of the Hindu Succession Act. If both or either of the grounds taken by Defendant No. 1 is established, the Plaintiffs' suit must fail. On the other hand, if both the claims made by Defendant No. 1 fail, necessarily, Plaintiff will be entitled to a decree, because admittedly they are the natural heirs in the order of succession.
4. Learned Counsel for Appellants assails the judgments of the Courts below on the following three grounds: (1) that the finding of the lower appellate Court upholding the factum and validity of adoption of Defendant No. 1 is bad in law as the same is not based on evidence and has been arrived at on erroneous construction of the contents of the will (Ex. B); (2) assuming that the valid execution and attestation of Ex. B is proved, Defendant No. 1 will not acquire any title to the suit properties as at the time of execution of Ex. B, Phula was only a limited owner; (3) that the execution and attestation of Ex. B have not been legally proved, and as such, the claim of Defendant No. 1 on the basis of Ex. B is not sustainable.
5. Point No. 1 It is not necessary to deal in detail with the question of adoption. The trial Court in para 7 of its judgment under issue No. 3 on a consideration of the evidence held that the alleged adoption has not been proved. On the other hand, the lower appellate Court in para 4 of its judgment negatived this finding and found in favour of the adoption. In coming to this finding, it has not relied on the evidence adduced by Defendant No. 1 in proof of the alleged adoption, but mainly rested on the ground that such an adoption finds ample corroboration from the recitals in Ex. B. A perusal of Ex. B. shows that it has erroneously construed the contents of Ex. B and come to the aforesaid finding. Mr. R.N. Misra, learned Counsel appearing for Respondent No. 1 conceded that he cannot support the finding of the lower appellate Court in favour of the adoption, and confined his claim of title to the properties on the basis of Ex B. In these circumstances the finding of the lower appellate Court that Defendant No. I is proved to be the adopted son of late Maharga cannot be sustained, and as such, is set aside.
6. The second contention of learned Counsel for Appellants is that assuming the valid execution and attestation of Ex. B. Defendant No. 1 cannot claim any rights thereunder as by the date of execution of Ex. B, in 1949, Phula was only a limited owner without any powers of testamentary disposition........