JOTIRAM EKOBA PATIL Vs. RAMCHANDRA TRIMBAK PATIL

JUDGEMENT

(1.) THIS is an appeal from a decree of the First Class Subordinate Judge of Jalgaon in a suit by the adopted son of one Trimbak and by the latter's widow the adoptive mother against T'rimbak's cousins and a nephew, the defendants, for partition of the family lands and other property. The precise relationship of Trimbak with the defendants will be apparent from the following genealogical table:- Laxman (dead)__________________|_________________| | Ekoba (dead) Kautik (dead) | = Guntabali (exhibit 159)_________________|_________________| | | |Trimbak (died onJyotiram Baliram Bajirao (dead)August 5, 1927)(Defendant No. 1) (Defendant No. 2) |=Narmadabai Pandalik (Plaintiff No. 2) (Defendant No. 3)| Ramachandra Plaintiff No. 1 (adopted son) The principal dispute relates to the legality and validity of the adoption of Ramchandra, plaintiff No. 1, said to have been made on March 31, 1935. The factum of adoption, although not disputed here, was disputed in the trial Court. The evidence on that point is sufficient and reliable and we accept the conclusion of the learned trial Judge that the plaintiff was duly adopted.

(2.) AMONG the numerous other defences raised to the plaintiff's claim were, first, that according to the caste custom amongst the Tilone Kunbis to which sect the parties belong, the only person, who could be legally and properly adopted is the person born in the same gotra or family of the adopter and inasmuch as plaintiff No. 1 does not belong to the adopter's family--his family name or gotra being Ahire whilst that of the defendants' is Borase--the adoption is illegal; secondly, that the deceased Trimbak, who succumbed to cholera after a few days' illness, had some hours before his end expressly communicated to his mother Guntabai that he intended to prohibit his wife from making any adoption to him and that in consequence the adoptive mother was incompetent to make the adoption; thirdly, that a few months prior to the alleged adoption all the defendants had separated and divided the ancestral property in their hands and had terminated the coparcenery and that consequently the plaintiff could not upon adoption become a member of any subsisting coparcenary or participate in its property; and, lastly, that the. suit must fail because the plaintiff's grandmother Guntabai, who it is said would be entitled to a share on partition between the plaintiff, the adopted grandson, and the other collaterals of his father, was not impleaded as defendant. The first three objections involve pure questions of fact. The learned Subordinate Judge has disallowed them holding that the special caste custom, the alleged prohibition and the extinction of the coparcenary were not established. On the question of law involved in the last point he found that the plaintiff's grandmother was not entitled to a share on partition and was therefore not a necessary party to the suit. Accordingly the plaintiffs' suit was decreed.

(3.) IN the text and the commentary the only female who is declared to be entitled to a share is the wife (patni) of the father. It is not disputed that that term would not include a mother of the father and the text therefore has no application to the present case.