BASAWANT GOWDA Vs. CHANNABASAWWA

JUDGEMENT

(1.) This appeal is by the plaintiff from the decision of the Civil Judge, Hubli, in Special Suit No.18 of 1965.

(2.) The facts leading to this litigation may briefly be stated as under. One Nagangouda Patil was the owner of the schedule properties. It appears he married three wives one after another, but did not get any male issue. His last wife is Channabasavva, the 1st defendant in the suit. He owned considerable landed and house property in Hulgur and Basanal villages. He was the holder of hereditary watan lands, he being the descendant of patil's family. He died on 21-1-1937 leaving the 1st defendant behind him. A few days prior to his death, he executed a deed of authority to defendant 1 to adopt any son to be born of one Sekhargouda Patil, who it is stated belonged to Nagangouda's (watandar) family. The plaintiff is the 'dasi putra' of Nagangouda. Shortly after the death of Nagangouda, disputes arose between the plaintiff and defendant 1. Plaintiff brought Spl. Suit No.50 of 1945 in the Court of the Civil Judge, S.D., Hubli, for partition and possession of half share in the estate of Nagangouda against the 1st defendant alleging that he was a legitimate son of Nagangouda Patil or in the alternative his 'dasi putra'. The 1st defendant resisted the suit and contended that the plaintiff was neither a legitimate son, nor a 'dasi putra' of Nagangouda Patil. In that suit the 1st defendant got produced into Court the deed of authority to adopt executed by her husband and relied upon that document for the purpose of proving her contention that Nagangouda Patil died issueless. The trial Court held that the plaintiff was a 'dasi putra' of deceased Nagangouda Patil and was entitled to half share in the estate of his father and granted a decree for partition and possession. That decree was confirmed in F.A. No.250 of 1947 in the High Court of Bombay preferred by defendant 1. In the final decree proceedings, the plaintiff and defendant 1 arrived at a compromise on 17-11-1950 by which defendant 1 retained the suit schedule properties while the plaintiff was given some other properties. After this compromise, on 5-2-1952 defendant 1 adopted defendant 2 who was her brother. On 8-6-1953 defendant 2 brought Spl. Suit No.22 of 1953 alleging that he had been validly adopted by defendant 1 as a son of Nagangouda Patil for recovery of possession of the properties delivered to the possession of the plaintiff pursuant to the decree in Spl. Suit No.50 of 1945. The suit was dismissed and the judgment and decree in the suit were confirmed by this Court in R.A.(B) No.304 of 1956. After the dismissal of the suit filed by Dyapangouda (defendant 2), the plaintiff in this case brought the present suit for declaration that he was the nearest heir to defendant 1 in whom patelki rights and properties were vested after the death of her husband and for an injunction against defendant 1 not to do any act which would jeopardise the rights and properties which would vest in him after the death of defendant 1. According to the plaintiff, both the defendants were attempting to alienate the suit properties with a view to defeat his claim.

(3.) Defendants 1 and 2 filed written statement contending inter alia, that defendant 1 had been in possession of the suit properties from 17-11- 1950 and that she had not committed any acts of waste, nor had she attempted to dispose of the suit properties. They further contended that the suit properties were not given to the husband of the 1st defendant as service inam lands. According to them, the plaintiff being a 'dasi putra', would not be a reversioner, and in any event, the 1st defendant had become the full owner of the suit properties by virtue of S.14(1) of the Hindu Succession Act, 1956 which came into force in June 1956. The 1st defendant also contended that restrictions on her rights as a female watandar which were Imposed on watan lands under the Bombay Hereditary Offices Act. stood removed by reason of Art.15 read with Art.13 of the Constitution.