LAXMIBAI VENKATRAO DESAI Vs. KESHAVRAO LINGANGOUDA DESAI

JUDGEMENT

(1.) THIS is an appeal from a decree of the First Class Subordinate Judge of Dharwar in a suit by the plaintiff to recover, upon partition, possession with mesne profits of his half share in certain properties mentioned in the schedules to the plaint which were admittedly the joints family estate of the plaintiff's adoptive father Lingangouda and his two brothers Venkatrao alias Kenchappaya and Nilkanthagouda. The facts which have given rise to this dispute are briefly these.

(2.) THE plaintiff's adoptive father Lingangouda died childless in 1923 leaving a widow Saraswatibai, defendant No.5 in the case, Lingangouda was predeceased by his younger brother Nilkanthagouda in 1918 who left a widow who is defendant No.4. Upon the death of these two brothers Venkatrao was left the sole surviving coparcener in the family. Venkatrao was thrice married and in 1928, which is an important period in the history of this litigation, only his last two wives the appellant Laxmibai, defendant No, 2, and Indirabai, defendant No.3, were living. THEy had no issue. THE first wife Bhagirathibai who died before 1928 had left three daughters, one of whom had a son Martand, defendant No.1 in the case, who was then a child aged four and is still a minor. It appears that Venkatrao on July 17, 1928, executed a document (exhibit 100) described as "vyavastha-patrack" in the nature of a testamentary disposition of his estate. By that document he authorised Laxmibai to adopt his daughter's son Martand. He also made provision for his daughters and widows and mother and also for the management of the estate during the minority of Martand and thereafter. THE material provisions in that respect are contained in cls. (2) and (7) of the deed which are reproduced below:- My second wife Laxmibai should bring up the said adopted boy and she alone should make vahiwat of the property in her independent right till her death and she alone should go on managing the household affairs (go on making vahiwat of the family). It is my wish that all the members of the family should remain in union. In case any dispute arises, then the lands as mentioned below out of our family property should be taken by the respective persons and should stay. Laxmibai should make vahiwat of all my property. During her lifetime and after the adopted son becomes major, any dispute arises, then in the remaining income Laxmibai should take half of the net income and should manage as she wills and the remaining half only should be taken by the adopted son who should make vahiwat and enjoy the same.

(3.) THEREAFTER disputes arose between Laxmibai on the one hand and the adopted son represented by his natural father on the other, in consequence of which Laxmibai instituted a suit in 1930 for a declaration that the adoption of Martand was invalid and illegal and that she was entitled to manage and enjoy the property under the adoption deed read with the earlier document the "vyavastha-patrak" executed in her favour by Venkatrao on July 17, 1928. The trial Court held that the adoption was valid and binding on the widow Laxmibai, but that she was entitled under the deed of adoption to the management of the estate for her life in terms of the "vyavastha-patrak" to which reference has been made therein. It was held that the arrangement, which was agreed to between Venkatrao and the natural father of the adopted son, was binding on the parties and the adoptive mother. Against that decision Laxmibai appealed to the High Court and there were cross-objections filed on behalf of the adopted son Martand. This Court on September 24, 1936, dismissed that appeal as well as the cross-objections maintaining the decree of the trial Court.