MAIKAPPA Vs. MALLAPPA

JUDGEMENT

(1.) Respondent 1-plaintiff filed the suit in the Trial Court for partition and possession of his half share in the suit properties. Defendants 2 to 4 were impleaded as alienees of some of the joint family properties. Defendants 1 to 3 are the appellants. Second respondent is defendant 4.

(2.) One Siddappa who died on 21-6-1898 had two sons, Basappa and Kulappa. Basappa died on 2-8-1930 and Kulappa died on 23-9-1909. Defendant 1 is the only son of Basappa and he was bom in 1916. The plaintiff is the only sen of Kulappa and he was born in 1910. Defendant 1 has an only daughter who is married. Defendant 1 had also got two sisters, Chandrawwa and Dundawwa, the former died about three months pior to the suit and the latter about three years prior to the suit. Dundawwa adopted the plaintiff. The plaintiff alleges that his adoption was in Dwyamushyayana: form and claims right in the properties of the natural family also and that he is entitled to partition and possession of half share in the suit properties. Defendant 1 pleaded that the plaintiff was not adopted in Dwyamushyayana form, there Was a prior partition in the family in 1880 or 1890 and that the suit properties belong to him exelusively since they had fallen to the share of Basappa in the partition between Basappa and Kulappa. The trial Court held on issue-1 that there was no partition between Basappa and Kulappa in 1880 or 1890. On the second issue it held that the plaintiff was adopted in Dwyamushyayana form, after an agreement that he should retain his share in his natural family also. On issue-3, it held that the alienations in favour of defendants 2 to 4 are not for legal necessity. It accordingly decreed the suit with a direction to allot in the partition Sy Nos.210 and 77, as far as possible, to the share of defendant 1 and to allot, as far as possible, the house VPC.770 of Nagathan to the plaintiff and VPC.771 of Nagathan to defendant 1.

(3.) It is urged by Mr. Desai, learned Counsel for the appellants, that the adoption of plaintiff in Dwyamushyayana form is not valid since such an adoption would be valid only if it takes place as a result of an agreement between the natural father and the adoptive father. Ex.P59 is the adoption deed. It is styled as Dwyamushyayana adoption deed. It is a registered deed. It is in evidence that Dundawwa, the adoptive mother and others approached a lawyer and adopted the plaintiff on his advice is Dwyamushyayana form. According to the plaintiff's case the adoptive mother asked his real mother to give him in adoption and his natural mother agreed to give the plaintiff in adoption provided he should continue to be the son for his natural family also as he was the only son to his father. The contents of Ex.P59 show that there was an agreement between the adoptive mother and the natural mother to that effect and that the ceremony of adoption took place. PW.2 is .an attestor of the adoption deed. He is 72 years of age. He has spoken to the circumstances under which the adoption took place. It was suggested to him in cross-exmina- tion that the fact that plaintiff should retain his status of a son in both the families was mentioned in the adoption deed without the knowledge of the adoptive mother, Dundawwa. The witness denied the suggestion. The lower Court relied on the evidence of this witness. It is to be noticed that there is no plea in the written statement of defendant 1 that Dundawwa was not aware of the above recital in Ex.P59. There is no reason to differ from the view of the lower Court that the adoption in Dwyamushyayana form did take place as alleged by the plaintiff.