KRISHNABAI SHIVRAM PATIL Vs. ANANDA SHIVRAM PATIL

JUDGEMENT

(1.) In this Second Appeal, the appellant was the defendant in the suit filed by the plaintiff-respondent for partition and possession of the plaintiff's alleged 1/2 share in the suit properties. The facts of the case are as follows:

(2.) The plaintiff alleged that one Shivram Patil was the owner of the suit property. He was a widower. The defendant was a widow. She came and stayed with him as his mistress. In due course he executed a maintenance deed, Ext. 37, in her favour giving to her 1/2 share in the suit lands and a house which were to be in her possession for her lifetime. Shivram had a natural brother Govinda, who was separated from Shivram long ago. The plaintiff was the son of said Govinda. Shivram had no issue and hence, on 21st May 1957, he took the plaintiff in adoption and executed a registered adoption-deed in his favour on 28th May 1957. According to the plaintiff, the possession of all the properties was handed over by Shivram to him; but in the Revenue Records the properties continued to remain in his possession. Shivram died on 28th March, 1970, but before his death sometime after the adoption, Shivram got a consent-deed executed from the plaintiff with a view to ensure the maintenance of the defendant. It was the plaintiff's case that after Shivram's death, the defendant kept possession of all the properties and refused to give the plaintiff his share. This, according to the plaintiff, was the genesis of the suit, which was filed by him against the defendant for partition and possession of the suit lands.

(3.) The defendant filed a written statement and denied that there was any valid adoption of the plaintiff by Shivram. She denied that the necessary ceremonies, which must inevitably attend upon a valid adoption, ever took place. She also contended that since the plaintiff was more than 15 years of age at the time of the adoption, the adoption was in fact invalid. She contended that there existed no custom in the community or in the family to which Shivram belonged, of a boy more than 15 years of age being taken in adoption. She contended that Shivram was not in a fit mental condition at the time of the alleged adoption. She further contended that immediately after that adoption. Shivram repudiated the same by giving a public notice. She contended that the plaintiff had usurped the possession of land, Gat No. 877, at Dhavali and hence Shivram had in fact filed Civil Suit No. 193/63 against the plaintiff and his alienee. In that suit the factum and validity of the adoption were challenged by Shivram. In that litigation he succeeded and he got a decree for possession of the land in question in his favour. As a matter of fact he even executed the decree and got back possession of the said land. In these circumstances the defendant contended that the present suit filed by the plaintiff was barred by the principles of res judicata. She denied the fact that she was the mistress of Shivram, She contended that she had remarried Shivram by Pat marriage. For all these reasons she strenuously contended that the plaintiff had no claim whatsoever in the suit property.