JUDGMENT This appeal under section 96 of the Code of Civil Procedure 1908 has been preferred by the appellants/defendants No. 2, 3, 5 and 6 against a judgment and decree dated 16th August, 2005 rendered in Civil Suit No. 16-A/2003 by the First Additional District Judge Dabra, district Gwalior (M.P.) whereby decreeing the suit holding that plaintiffs and defendants No. 1, 3 and 4 are the legal representatives of the deceased Parmanand, owner of agricultural lands under suit and defendant No. 5 Vrindawan is not adopted son of Dakhoobai and therefore the sale transactions made by Vrindawan in excess to his share in favour of Ramveer Singh, defendant No. 6/appellant No. 4 against other co-sharers are declared as void and ineffective. Consequently, the plaintiffs and defendants named above have been declared as entitled to get the partition of the suit lands as per revenue laws. 2. The facts, in short, for adjudication of this appeal are that deceased Parmanand was owner of the agricultural lands comprised in different survey numbers as mentioned in the plaint schedule, having total area of 3.134 hectare situated in village Akwai Badi Tahsil and district Dabra. After death of Parmanand, the aforesaid agricultural lands were inherited by his sons/plaintiffs Bholaram, Kalyan Prasad, Gendalal and daughters namely Smt. Dakhoobai, Mahadevi and Bhagwati. Parmanand died near about 25 years ago. After death of Parmanand and prior to institution of the suit, Smt. Dakhoobai daughter of Parmanand and her husband Rameshwar also died issueless. Defendant/appellant Vrindawan who is son of Smt. Bhagwati claimed himself as adopted son of Smt. Dakhoobai on the basis of forged Will executed in his favour during lifetime of Dakhoobai. On the basis of aforesaid, he successfully mutated his name over the property belonging to deceased Dakhoobai in the revenue records. It is further stated that the plaintiffs and defendants No. 3, 4 and 5 submitted an application before Naib Tahsildar in which the order was passed on dated 27th February, 2003 in Revenue Case No. 29/2001-2002 A-27 by Naib Tahsildar, Pichhore and the partition between the heirs of the deceased Parmanand was done on metes and bounds as per list of partition. The aforesaid partition order was challenged under appeal before Sub Divisional Officer (Revenue) Dabra in which order of stay was granted by the appellate authority. The aforesaid partition order was challenged under appeal before Sub Divisional Officer (Revenue) Dabra in which order of stay was granted by the appellate authority. Meanwhile, prior to the suit on 26th May, 2003 defendant Vrindawan and Smt. Bhagwati both sold the lands to Ramveer Singh. It is further alleged that Gendalal son of deceased Parmanand also sold 1/6th share of the property under dispute to Bittobai by sale-deed after death of his father. Thereafter, Bittobai sold that 1/6th share in favour of Vachan Singh by executing sale-deed on 23-3-1993. Hence, by filing the suit for declaration as above it is prayed by the plaintiffs that the sale deed executed by defendants No. 3 Smt. Bhagwati and No. 5-Vrindawan in favour of defendant No. 6-Ramveer Singh in respect of the property belonging to deceased Dakhoobai and the sale-deed executed by defendant No. 1-Gendalal, son of the deceased in favour of Bittobai in regard to 1/6th share in the suit property be declared as null and void having exceeded to the shares of other shareholders in suit property. After trial, the learned trial Judge decreed the suit for title over the property and also declared the sale deed executed by defendants No. 3 and 5, namely, Smt. Bhagwati and Vrindawan in favour of defendant No. 6-Ramveer Singh as null and void. By the aforesaid impugned decree, the learned trial Judge also held entitled the plaintiffs Bholaram, Kalyan Prasad and defendants No. 1-Gendalal, No. 4-Smt. Mahadevi and No. 3-Smt. Bhagwati to receive their share after getting partitioned the suit property through revenue authority each to the extent of 1/5th share being legal heirs of the deceased Parmanand. Being aggrieved by the judgment and decree of the learned trial Judge, the appellants have come up in this appeal. 3. It is submitted by the appellants that the judgment and decree under appeal is patently illegal and perverse to the evidence on record and therefore same is liable to be set aside. It is further contended that the trial Court fell in error in not holding that the property after partition by the competent revenue Court was not joint property and therefore it cannot again be partitioned. The trial Court again erred in holding that the burden of proof of the issues as framed were duly proved by evidence of the plaintiffs. It is further contended that the trial Court fell in error in not holding that the property after partition by the competent revenue Court was not joint property and therefore it cannot again be partitioned. The trial Court again erred in holding that the burden of proof of the issues as framed were duly proved by evidence of the plaintiffs. On these grounds, it is prayed that by allowing the appeal the judgment and decree may be set aside. 4. On the other hand, learned counsel appearing on behalf of the respondents contended that the appellant No. 3/defendant Vrindawan, son of Smt. Bhagwati had a share of his mother Bhagwati and by leading cogent evidence as per law he could not prove that he was adopted by Smt. Dakhoobai in her lifetime. So, he could not transfer more than his share in the suit property. It is further submitted that the order of partition passed by Naib Tahsildar under appeal was stayed by the appellate authority. The revenue Courts had no authority in respect of the declaration of ownership of the parties. Hence, it is prayed that the appeal is liable to be dismissed by maintaining the judgment and decree. 5. Having heard counsel for the parties following questions came up for consideration of this appeal:-- (i) Whether the appellant No. 3-Vrindawan (defendant No. 5) being the adopted son of Smt. Dakhoobai and heir on the basis of alleged Will executed by Smt. Dakhoobai is entitled to claim her share in the suit property? (ii) Whether appellant No. 3-Vrindawan (defendant No. 5) without partition on metes and bounds can validly transfer the land to vendees? 6. On perusal of the record of case and as per averments of the parties following facts are admitted that Parmanand, owner of the property died leaving behind three sons, namely, Bholaram, Kalyan Prasad, Gendalal, and three daughters, namely, Smt. Bhagwati, Smt. Mahadevi and Dakhoobai. These heirs inherited the property left by Parmanand. After his death Smt. Dakhoobai and her husband Rameshwar also died issueless. Hence, question that remains is whether the appellant No. 3-Vrindawan has proved the fact by cogent evidence that he was adopted by Dakhoobai as per provisions of law? 7. Before considering the factual aspects, the law codified as "The Hindu Adoptions and Maintenance Act, 1956" must be considered. 3. Definitions. Hence, question that remains is whether the appellant No. 3-Vrindawan has proved the fact by cogent evidence that he was adopted by Dakhoobai as per provisions of law? 7. Before considering the factual aspects, the law codified as "The Hindu Adoptions and Maintenance Act, 1956" must be considered. 3. Definitions. -- In this Act unless the context otherwise requires-- (a) the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family; 5. Adoptions to be regulated by this Chapter. -- (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void. (2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family on his or her birth. 8. Having regard to above, this Court now has to consider the evidence and proof adduced for proving the alleged adoption of Vrindawan by his adoptive mother. Witness Vrindawan stated that he was adopted by Dakhoobai and thereafter by way of Will executed by Dakhoobai, he became owner of the property owned by her. He deposed that from his childhood he was living with Dakhoobai and was maintained by her as her son. In cross-examination, he clearly admitted that he did not know when he was adopted by Dakhoobai and whether any ceremony for his adoption was solemnized. He also had no knowledge whether an adoption deed was executed by the parties. However, he admitted to have knowledge of his adoption through Will executed by Dakhoobai. He also admitted that his name was mutated over the property during lifetime of Dakhoobai and her husband Rameshwar. So, it is apparent from the facts on record that no Will was proved as per requirement of law. 9. However, he admitted to have knowledge of his adoption through Will executed by Dakhoobai. He also admitted that his name was mutated over the property during lifetime of Dakhoobai and her husband Rameshwar. So, it is apparent from the facts on record that no Will was proved as per requirement of law. 9. In the case of Nathia Bai wd/o. Lt. Krishna and others vs. Gangaram s/o. Horal Singh and others, 2010 (1) MPLJ 140 this Court has observed in paragraph 11:-- “.................Thus, if suspicious circumstances would have been pleaded by the defendants, then only the plaintiffs, who are the propounder of the Will, were legally bound to remove those suspicious circumstances. The contestant opposing the Will, according to me, was required to bring the material on record so that the Will can be said to be a suspicious document and in that event the onus would shift back on the propounder of the Will to satisfy the Court by adducing positive evidence that the Will is not suspicious. 10. After consideration of the evidence as adduced, it is found that appellant No. 3 Vrindawan did not by his deposition or producing any witnesses who attested the unregistered Will has proved that the alleged Will was executed under directions of Dakhoobai. On the contrary, the plaintiffs have been able to make out a case of suspicion either in the pleadings or in the evidence. Since, the defendant/appellant No. 3 has been unable to prove the Will by examining the scribe as well as the attesting witnesses, the Will is not found proved in accordance with section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872 and consequently no right over the share of deceased Dakhoobai accrued to Vrindawan. In that case the share of Dakhoobai who died leaving behind no issue shall devolve upon her successors left either by her or rest heirs of the deceased Parmanand. Since no successor from side of Dakhoobai or her husband Rameshwar came forward to claim share of Dakhoobai received from her father with further fact that Vrindawan also could not successfully prove his adoption by Dakhoobai nor could he establish the execution of the Will in his favour, in such circumstances, the share of Dakhoobai after her death and on death of her husband Rameshwar certainly will devolve equally among the residue successors of Parmanand. 11. 11. Thus, upon considering all these aspects of the case emerged from evidence as adduced by the parties, the learned trial Court rightly declared that in the absence of cogent and convincing proof, defendant Vrindawan is not heir of the deceased Dakhoobai, daughter of Parmanand on the basis of adoption or on the basis of alleged Will, hence, on death of Parmanand, his three sons and three daughters including deceased-daughter Dakhoobai became successors of Parmanand who are legally entitled to get equal share in the property left by Parmanand and after death of Smt. Dakhoobai, in the absence of other successors, the rest successors of deceased Parmanand will be entitled to receive equal share from the share left by deceased Dakhoobai. This being so, the entire sale-deed executed by Vrindawan and Bhagwati dated 26th May, 2003 in favour of Ramveer Singh will not be declared as null and void, but it shall be ineffective only with reference to the share exceeding to the share of Smt. Bhagwatibai. Eventually, the equal share that may be received from the share left by Dakhoobai by other successors of deceased Parmanand would be in addition to the shares in property received by other successors. Accordingly, it is directed that all successors of the property left by Parmanand cum legal holders of the share received in the event of death of Dakhoobai and her husband including the purchasers of the property from other successors shall bring the legal proceedings for partition before the authority on metes and bounds. 12. With this modification in the impugned judgment and decree, the appeal stands partly allowed. 13. Parties shall bear their costs of the suit as well as appeal. 14. The decree be drawn up accordingly.