MADHAVSANG HARIBHAI PATEL Vs. DIPSANG JIJIBHAI PATEL

JUDGEMENT

(1.) ONE Adesang Himdas died in 1892 after making a will. He left two widows; and some months after his death one of the widows gave birth to a posthumous son, who died less than two years later. Adesang also left two daughters, Bai Suraj and Bai Mongh. By his will he provided that his property should go to his daughters unless a posthumous son were born to him. He had been predeceased by a divided brother Jijibhai, who at his death left a widow Bai Sada and also a daughter Bai Chanda. The present plaintiff is Bai Chanda's grandson, and he was adopted by Bai Sada to her husband Jijibhai on December 4, 1938. In 1897 Bai Sada' relinquished all her husband's property in favour of her daughter Bai Chanda. In 1937 Bai Mongh, who was then the survivor of the two daughters of Adesang, surrendered the properties in suit to the defendant. Those properties are admittedly the ancestral properties of Adesang, and by a custom relating to bhag properties in the Broach district the preferential heir to such properties after the death of Adesang's posthumous son would be not Adesang's daughters but Bai Sada, the widow of Adesang's brother, who was the posthumous son's uncle. Some months after the surrender of the suit properties by Bai Mongh, Bai Sada relinquished to the defendant (who admittedly is the nearest reversioner after the death of Bai Sada) any interest that she might have in those properties, assuming that she had any interest at all. The deed recites the consideration of Rs. 600, but the defendant says that there was no consideration in fact. On the same day the defendant executed a lease of part of the property for 999 years to the brother of the plaintiff, and shortly afterwards he executed a release in favour of Bai Chanda of any right that he might have to the property of Jijibhai which Bai Sada had surrendered to Bai Chanda in 1897.

(2.) THE plaintiff by virtue of his adoption has sued for the possession of Adesang's property now in the hands of the defendant as the result of the release deeds executed by Bai Sada and Bai Mongh. He said in his plaint that Bai Mongh had no right to any of the property, since it was ancestral property and Adesang had therefore no right to make a will; and assuming that he had the right to make a will, the will itself displaced Bai Mongh in the event of a posthumous son being born. Apart from, the will he contended that Bai Mongh had no right to the property by reason of the local custom which I have mentioned. He then said that the surrender or relinquishment by Bai Sada in favour of the defendant was illegal on various grounds. In the written statement various defences were taken; one was that the adoption was invalid and in any case would be powerless to divest property which had already vested, the adoptive mother being the widow of a gotraja sapinda; another was that Bai Suraj and Bai Mongh had become owners of the property by adverse possession if not as actual heirs, and the custom which would make Bai Sada a preferential heir was denied. THE trial Court held that the adoption was valid but that it could not affect the interest of the reversioner. Relying however upon the decision in Shivappa v. Kariyappa (1938) 41 Bom. L.R. 208 and thinking that to be the effect of the decision, the learned Judge allowed the plaintiff to dispossess the defendant for the period of Bai Sada's lifetime, apparently on the view that the plaintiff acquired his mother's rights in a limited estate. THE defendant now comes in appeal.

(3.) WE were referred by the plaintiff's learned counsel to Rajah Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya (1876) L.R. 4 I.A. 1., where an adopted son sued his adoptive mother for property which she had inherited before the adoption from her natural son. The principal question for decision was the validity of the adoption, and it was held that the adoption was valid. The fact that the adopted son was allowed to take the property does not establish the contention now put forward that an adopted son in every case takes the estate of his adoptive mother. In that particular case he did take it; but he did not take it qua the estate of his adoptive mother. Whenever an adoptive son takes property by virtue of his adoption, what he takes is the property of the last male holder; and although the widow had inherited the property from her son, what the adopted son took in Rajah Vellanki v. Venkata Rama was in fact the property of the last male holder. This case is of no help to the plaintiff, who on the authorities is excluded from the properties of the last male holder; it does not show that he can acquire them by the expedient of divesting his mother of her limited estate in them. Thus the plaintiff has no right to sue, and it is not necessary to consider the other defences to the suit. They have been briefly touched upon by the defendant's learned counsel, but they have not been discussed in the reply from the other side.