1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO.260 OF 2007 Gopichand Pandurang Jalgaonkar & ors. Appellants vs. Pralhad Govind Jalgaonkar & ors. Respondents Mr.S.E.Kazi for the Appellant. Ms.Parasnis for Mr.G.S.Godbole for Respondent no.1. CORAM : ANOOP V. MOHTA,J. DATED : 30th April, 2008 P.C. This Second Appeal is filed by original defendant No.1 claiming to be adopted son of deceased Pandurang. Both the Courts below, after considering the material as well as evidence placed on record, concluded that the Appellant failed to prove the same. In the result, the suit filed by the plaintiff-respondent has been decreed and granted the partition to all concerned being joint Hindu family property consisting of his two sons-Govind and Pandurang. 2. The Suit is decreed in the following terms: " O R D E R 1) The suit of plaintiff is hereby decreed. 2) It is hereby declared that plaintiff has 9/56th share in the suit properties. The defendants no.1 to 3 have 9/56 share each. Defendants no. 4 to 6 have 9/56th share jointly defendants no. 7 to 9 have 9/56th 2 share jointly. Defendant no. 11 has 1/56th share and defendant No.12 has 1/56th share in the suit properties described in the plaint para no.3. 3) The defendants are hereby directed to deliver the possession of plaintiff’s 9/56th share. 4) The precept be sent to the Collector Ratnagiri to effect the partition of agricultural suit properties. 5) The plaintiff is hereby directed to get effect the partition of the suit houses by appointing the Court Commissioner. 6) The separate enquiry be held for future mesne profits under Order 20 Rule 12 of C.P.C. 7) It is hereby direct that the properties described at Sr.No.16 Sy.No.10/1 area 0-33-0 and property described at Sr. 16A Sy.10 Hissa No 1/1 area -6-38 be allotted to the share of the defendant no.3. 8) Defendant no.13 claim in respect of suit property Sy. No 1/3 stands dismissed as Gift not proved. 9) In view of the facts and circumstances of case parties to bear their own costs. 100 Preliminary decree be drawn up accordingly." 3. Except defendant No.1 no other original defendants challenged the said decree in Appeal. In the result, the findings and the reasoning so given with regard to the fact that the entire suit property is of Joint Hindu family property and, therefore, plaintiff is entitled to partition and separate possession along with others, remained undisturbed and as confirmed by the Appellate Court also. 3 4. Defendant No.1 resisted the said partition Suit mainly on the ground that he is the adopted son of deceased Pandurang. Therefore, burden lies heavily upon him to prove the factum of adoption. Both the courts below, after considering the evidence led by the parties and specially of Sagunabai (defendant no.10), the mother of defendant no.1 i.e. the Appellant also not supported the fact and even denied such adoption. There is no procedure, proof of ceremony and giving and taking under the Hindu Law which need to be followed or at least recorded with regard to the adoption. Those ingredients are missing. 5. The heavy burden lies upon the person who alleges or claims factum of adoption and it’s validity. The evidence to prove factum of adoption must be clear and undoubtful and unimpeachable and must be free from all suspicious of fraud. It must be consistent and probable as to leave no occasion for doubting it’s truth. In the present matter, there is a wide gap between alleged adoption and the date of suit. Still there is no material to give allowance to any missing links or evidence. 6. Therefore, as concurrently held that the Appellant failed to prove the said factum of adoption, the findings given by the courts below, therefore, with 4 regard to the grant of partition in favour of the plaintiff and other defendants in no way need interference. It is within the frame work of law and the record. There is no perversity. 7. The Second Appeal is, therefore, dismissed. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]