TARABAI BHIMGONDA PATIL Vs. BABGONDA BHAU PATIL

JUDGEMENT

(1.) THIS is the original plaintiffs' appeal that questions the concurrent judgments rendered by the Courts below in the suit initiated by them for the purpose of recovering property on the basis that upon the death of one Bhau Anna Patil on August 13, 1958, the plaintiffs inherited the same as the nearest heirs of the deceased. This entitlement was based on some undisputed facts and upon certain disputed, controversy.

(2.) THE claim to the nearest heirship to the deceased Bhau Anna Patil was based on the following genealogy: SAVANTA|| | |Appa Laxman Ramgonda(died in 1912) | || | Kausablal Bhau | | |(Adoption on Bhimgonda Ramgonda | 26 -6 -1912) (Pltff.1) (Pltff.2) |(Died on 18 -8 -1958) |Nomgonda| (Died issueless)Baggonda(Deft. 1) The plaintiffs set up the claim that they are the only sons in the family claiming through Laxman and upon the death of Bhau, would be entitled to inherit allthe estate of Bhau. They sought to exclude defendant No. 1 Babgonda from the family on the basis that Babgonda was born prior to the date of adoption, that is, prior to June 26, 1912 and, therefore, Babgonda would not be entitled to succeed to Bhau, he being the member of the natural family prior to the adoption of Bhau.

(3.) ON the aspects of facts, Mr. Gole, has strenuously argued that the Courts below have committed errors of law in concluding the facts in this manner placing reliance on the certificated entry of the Birth Register produced at Ex. 172, particularly when it was shown by the plaintiffs that there was everything to doubt about its genuineness, and he has referred to the letters produced at Exs. 186 and 187 for contending that as the original was not produced, the entry at Ex. 172 could not have any probative value. In the submission of the learned counsel, this is an error of law and the judgments are liable to be reversed. Secondly, it was submitted that defendant No. 1 did not enter the witness box and an adverse inference ought to have been drawn, particularly because on the earlier occasion before the Revenue Authorities he had given an admission and unless that admission was explained, the Courts below were not right, firstly, in not drawing the adverse inference and, secondly, in not giving effect to the said admission. For this reason, according to the learned counsel, the Judgments are infirm. Lastly, it was contended that the judgment of this Court rendered in Advi Fakirappa's case : AIR1918Bom168 should be reconsidered, for it does not lay down the correct legal rule.