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11. No school leaving certificate ever declared J.D. Dhingra as the father of the defendant No. 2. G.L. Dhingra did not even attend the marriage of the defendant No. 2. Nor did the plaintiff. In view of their opposition to the marriage, it was J.D. Dhingra who performed the marriage as the father of the defendant No. 2. The second defendant herself filled up the admission form of Miranda House wherein G.L. Dhingra was recorded as the father and the same was signed by G.L. Dhingra. In the record book of Pandit Shyam Sundar of Haridwar G.L. Dhingra got recorded that he had two sons and two daughters and named the plaintiff and the defendant No. 2 as his children and J.D. Dhingra on his visit to Haridwar gave the name of the plaintiff as well as the children born to G.L. Dhingra from his second marriage as children of G.L. Dhingra. The second defendant could not have been given or taken in adoption as per law prior to the coming into force of Hindu Adoption and Maintenance Act, 1956 and the adoption would be void. The last rites of J.D. Dhingra was performed by Gulshan Chandna, a nephew of late J.D. Dhingra. The plaintiff and the second defendant have no right to seek partition and the claim of the defendant No. 2 is liable to be dismissed.

28. Mr. V.B. Andley, learned Senior Counsel appearing for the plaintiff, has further said that there is no proof to show that the Judge had fulfillled the requirement of Section 23 of Hindu Marriage Act and that he had satisfied himself that there was no collusion between the parties. This argument again has only to be rejected as it was the onus of the defendant No. 2 (not of the plaintiff) to prove that the decree for some reason or the other was bad.

29. Mr. Andley has further cited judgment of the Supreme Court in the case of Lily Thomas and Ors. v. Union of India and Ors. reported as which held that change of religion did not dissolve a marriage between the two Hindus and that despite conversion to Islam the marriage subsists and second marriage of the person converting to Islam was not legal in law. The ruling has no relevance to the facts of this case. The ruling applies only where a man converts to Islam and taking benefit of Mohammedan Law takes another wife during the subsistence of the first marriage. In the present case the defendant No. 1 has been divorced by a decree of the court. She has remarried as a Hindu. There is proof that she reconverted to Hinduism before her marriage. As proved by her testimony as well as by the priest, Mr.Ram Krishan, D1WC2. Issues 5 & 6 are decided in favor of the defendant No. 1.

31. The defendant No. 1's allegation that the plaintiff's story regarding the date and details of the adoption ceremony including the execution of the deed is an afterthought cannot be said to be without force. While examining the evidence led by the plaintiff as well as the defendant No. 2 in respect of their adoption by J.D. Dhingra this factum has to be kept in mind.

32. There are certain other factors, which are to be kept in view while examining the case of the plaintiff. In the first place, G.L. Dhingra and J.D. Dhingra were real brothers and were living in a joint family and the children were being properly looked after. The mother of the two children was dead but they still had their grandmother as well as Sushila Dhingra @ Sheel Dhingra, the aunt, apart from the father & uncle. There was no need for any adoption just to enable J.D. Dhingra and his wife to look after the children or to bring them up in the absence of their mother. The excuse for this adoption is held out to be need of G.L. Dhingra to be free of the responsibilities of the children as he wanted to take another wife. The defendant No. 1, who could be well expected to be aware of the affairs of the family at that time being the real sister of J.D. Dhingra's wife, says that the second marriage of G.L. Dhingra was being contemplated to look after the children, who had lost their mother. It is claimed that the second wife of G.L. Dhingra had expressed a desire before marriage that G.L. Dhingra parts with the children. The second wife, the best witness, unfortunately has not been examined in Court. This allegation is thus not proved. The plaintiff has failed to prove that there was any need for adoption by J.D. Dhingra of the two children of G.L. Dhingra.

45. The third important witness to prove the adoption ceremony is PW-5, K.L. Ram Pal. He claims to have known the family ever since they lived in Lahore. He says that he knew them from 1940-41 and were on visiting terms. He could not remember the name of G.L. Dhingra's wife but said that the plaintiff and the defendant No. 2 were the two children of G.L. Dhingra. He then says that J.D. Dhingra, who was married at Lahore did not have any children when the two brothers came to Delhi on partition of the country. He proceeds to say that G.L. Dhingra remarried in the year 1954 as his wife had died on her way to India from Pakistan. He says further that before the remarriage the friends and relatives of the family advised a `transfer' of the children legally to the younger brother who was already bringing-up the two children. He proceeds to say that on 28.9.1953 the adoption ceremony took place at the Pusa Road house in a function in which he was present. He then says that after the religious ceremony the two brothers, the wife of J.D. Dhingra, the father of J.D. Dhingra and G.L. Dhingra, and another person whose name he could not recall came to the drawing room where a deed which had already been typed was signed by the two brothers in his presence and that he also signed the deed as a witness. On an adjourned date the witness corrected himself by saying that the second marriage of G.L. Dhingra took place in March, 1955 and the adoption ceremony took place about 5 or 6 months before the second marriage. He says that it was birthday of Mahesh which was held in the morning and after the birthday party in the morning there was hawan and puja. This statement of K.L. Ram Pal is contradictory to the statement of PW-4 Shakuntala Devi Myer who says that the tea party was held in the evening after the hawan in the day and not as stated by PW-5 K.L. Ram Pal, i.e., the birthday party in the morning followed by hawan. He could not remember the other person present in the room on the occasion when the deed was written. As per the plaintiff's witnesses the other witness was Harnam Singh. PW-5 himself referring to the marriage ceremony of the defendant No. 2 says that he attended the marriage ceremony of the defendant No. 2 which was held at the residence of a common friend, Harnam Singh, who at that time was living at Patel Nagar. If PW-5 had information that the marriage ceremony of the defendant No. 2 was held in the house of Harnam Singh and that Harnam Singh was a common friend he could not have forgotten the name of Harnam Singh, the other person who was also present on the occasion of the adoption. Coming to his cross-examination there are other instances where this witness has terribly faltered. Very interestingly he says that he met the second wife of G.L. Dhingra, Shanta, before her marriage at the residence of J.D. Dhingra at his defense Colony house. Admittedly, J.D. Dhingra shifted to the defense Colony house sometime in 1964 whereas the marriage of G.L. Dhingra with Shanta took place in 1955 and, therefore, there could have been no occasion for this witness to meet Shanta at the defense Colony house of J.D. Dhingra before 1955. In his Examination-in-Chief he stats that J.D. Dhingra was married at Lahore but in his cross-examination he attempts to improve his statement by saying that both the brothers got married at Rawalpindi.