SUBRAO BAJI PATIL Vs. DADA BHIWA CHAWAN

JUDGEMENT

(1.) THIS is an appeal against a decision of the Assistant Judge of Satara. The plaintiff sues to recover certain immoveable properly, and hiss title is made out in this way. As long ago as the year 1892 Jana, who was the widow of Tukaram, sold the suit property to the defendant's father. In 1913 she endeavoured to recover the property on the ground that the transaction was a mortgage and not a sale, but she died soon after that suit was started, and the suit abated. On the death of Jana in 1913 the property passed to Ahilya, who was the widow of Tukaram's divided brother Baji, who had died before Jana. Ahilya, as the widow of a gotraja sapinda, according to the law in force in this Presidency, enjoyed only a widow's estate, and in 1928, she adopted the plaintiff. In 1936 the plaintiff filed this suit seeking to recover the property from the defendant, who had been in possession since 1892,on the ground that the sale by Jana was not for legal necessity. The suit failed in both the lower Courts, though for different reasons. In the trial Court the learned Judge held that the adoption of the plaintiff did not divest the estate of Tukaram, which was vested in Ahilya; whilst in the lower appellate Court it was held that the adoption did divest any estate then in Ahilya, but that the plaintiff's suit was barred by limitation under Article 141 of the Indian Limitation Act, 1908.

(2.) I think that the ground taken in the lower appellate Court cannot be supported, because the plaintiff's claim undoubtedly arose in 1928, and, although at that date any right which Ahilya had to claim possession was unquestionably barred by limitation, the plaintiff does not claim through Ahilya. But I think that the plaintiff's claim fails on the authority of the full bench decision in Radhabai v. Rajaram,1 In that case the full bench held that the widow of a gotraja sapinda could not by adoption divest the estate of a reversioner and thereby alter the inheritance.