દતકપુત્ર દ્વારા ગુજ. પિતાની મિલકતના એકમાત્ર વારસદાર તરીકે દાવો કરેલ. જે માટે દતકપુત્રએ સ્વતંત્ર પુરાવાઓથી દતક હોવાનું સાબિત કરવું પડે છે. દતકની સાબિતી માટે રજુ કરાયેલ મૌખિક પુરાવો રજુ થયેલ જે કોઈપણ રજીસ્ટર્ડ ડોક્યુમેન્ટના અભાવમાં સમર્થન તરીકે ગણી શકાય નહિ. તેમજ દતક અંગે કોઈ શંકા હોય તો તેની સાબિતી કોર્ટ સમક્ષ રજુ કરવી જોઇએ. દતકપુત્ર કોર્ટમાં વિટનેસ બોક્ષમાં જુબાની આપેલ નહિ અને દતક અંગેના કોઈ ડોક્યુમેન્ટ રજુ કરેલ નહિ. તેથી એ વાત સાબિત થયેલ કે તે દતક્પુત્ર નથી. ગુજરનારની મિલકતમાં તેને કોઈ ભાગ મળી શકે નહિ.(para-5)

રીલેટેડ પેરેગ્રાફ :

5. In the light of the above rival contentions, insofar as the primary contention on behalf of the appellant that the Trial Court had failed to frame an issue regarding adoption, but had proceeded to arrive at a finding that the appellant had not been adopted, could not preclude this court from determining the case finally in terms of Order XLI Rule 24 of the CPC, if the evidence on record is sufficient to enable this court to pronounce judgment and in order to do so, resettle the issues, if necessary, in finally determining the suit.

It is not in dispute that the appellant had filed a civil suit in O.S.No.349/1994, seeking partition and separate possession of the very suit properties, claiming as the adopted son of Bapurao, son of Govindrao and Radhabai. Radhabai had entered appearance and filed written statement denying that Girish was adopted by her and her late husband. This did give rise to an issue in that suit. But on account of Radhabai’s death before the issues could be framed and in view of other defendants having blindly conceded the prayer of the appellant, who was the plaintiff therein, the question was not addressed. But however, Girish, the appellant herein was required in law to independently establish that he was the adopted son, as claimed. As held in Rahasa Pandiani and others v. Gokulananda Panda and others, AIR 1987 SC 962 by the Apex Court, an adoption would divert the normal and natural course of succession. Therefore, the court has to be extremely alert and vigilant to guard against being ensnared by schemers, who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is not supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the court by the party contending that there was such an adoption.

Again in Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504, it is held that as an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no action for doubting its truth.

Therefore, in the absence of appellant Girish, ever having established by cogent evidence that he was the adopted son of Baburao and Radhabai, either in the suit in O.S.No.349/1994 or in the suit instituted by the present respondent no.1, it give rise to an important issue, which the court below had failed to frame.