SANNAMMA Vs. EARAPPA

JUDGEMENT

(1.) This is an appeal against the judgment in O.S. 21 of 1946-47 on the file of the Subordinate Judge, Shimoga, dismissing the plaintiff-appellant's suit for declaration that the plaintiff is the owner of the plaint schedule properties and that the defendant is not the adopted son of her deceased father.

(2.) The properties in dispute are, according to the plaint, ancestral properties of plaintiff Rudramma's father Shivappa Gowda. He and his wife Basamma took Rudrappa in adoption, but he predeceased Shivappa Gowda who thereon took Isvarappa in adoption. The latter survived Shivappa Gowda, but died issueless soon after his father's death. Basamma, widow of Shivappa Gowda, is stated to have taken Errappa the defendant in adoption and it is the truth and validity of this adoption that the plaintiff disputes. The defendant-respondent has asserted that he is the adopted son of Isvarappa (sic) and that he is the owner of the properties in dispute and pleaded that the suit for declaration of plaintiff's title is bad as plaintiff is not in possession of the properties and has not filed the suit for possession of the same.

(3.) There is hardly any doubt that Basamma took the defendant is adoption. The adoption is evidenced by a registered document and the writer and attestors have sworn that the adoption ceremony took place. There is no reason to doubt their evidence. Apart from the presumption under Section 9(1), Hindu Law Womens's Rights Act (X (10) of 1933) that the widow had the authority of her husband to take the boy in adoption, it is likely that he authorised her to take in adoption a third boy as Rudrappa the first adopted son had died and the second adopted son who was sickly was expected to share the same fate. There is, therefor,e sufficient material for upholding the decision of the lower Court that the widow had authority of the husband to adopt. The next point that arises for consideration is whether there is any property of Shivappa Gowda to which his adopted son can lay claim. Isvarappa, the adopted son of Shivappa Gowda, survived the latter and thus became entitled to the entire estate of the joint family, after the death of his father. After Isvarappa's death his mother Basamma inherited them. Basamma took the defendant in adoption to her husband and the point for consideration is whether the adoption divests the estate vested in the heir of the last surviving coparcener.