LAWS(BOM)-1970-9-20

DNYANU GOPAL POWAR Vs. JIJABA BABA POWAR

Decided On September 22, 1970
Dnyanu Gopal Powar Appellant
V/S
Jijaba Baba Powar Respondents

JUDGEMENT

(1.) THIS is an appeal against the appellate judgment dated December 31, 1962 of the learned District Judge, Satara. The appeal was originally filed by the three defendants in the suit from which the present appeal arises. Defendant No. 1 died during the pendency of this appeal and his heirs and legal representatives were joined as respondents No. 2 to 7. The appeal was dismissed against respondent No. 6 for want of prosecution. Respondents Nos. 2 to 5 and 7 have not appeared. Respondent No. 1 is the original plaintiff.

(2.) THE dispute is about three properties. They formed a part of the estate of one Shivaba who died in or around 1920. He was succeeded by his son Baba who died leaving him surviving his widow Goja. Goja alienated three of the properties of which her late husband Baba was the full owner. One of the properties was sold on May 2, 1942 to defendant No. 1, another on January 4, 1943 to defendant No. 2 and a third on March 23, 1943 to defendant No. 3. After these alienations she adopted the plaintiff as a son to her husband on April 22, 1959. Thereafter she died.

(3.) THE learned trial Judge held that there was a custom in the community of Goja to adopt a boy who was more than 15 years of age at the date of adoption and therefore under section 10 (iv) of the Hindu Adoptions and Maintenance Act, 1956, the adoption was valid. He held the fact of adoption proved. The learned trial Judge also held that the alienations by Goja were for legal necessity and were for consideration and were bona fide. He also held that notwithstanding the proviso (c) to section 12, the plaintiff was entitled to sue. Having come to the conclusion that the alienations were for legal necessity, the learned trial Judge dismissed the suit. Against the said decision, the plaintiff appealed to the District Court at Satara,