MAHALINGAYYA BASAPPAYYA ULLAGADDIMATH Vs. SANGAYYA CHENNAYYA ULLAGADDIMATH

JUDGEMENT

(1.) THIS appeal arises from a suit instituted by the plaintiff Sangayya Chennayya Ullagaddimath to recover possession with mesne profits, by partition, in his capacity as the adopted son of one Chennayya, of his share in the properties specified in the plaint, and for an account of the family business consisting of an arms and ammunition shop, The contesting defendants are Chennayya's brother Mahalingayya and the letter's son. The properties in dispute were at one time part of the joint family properties of one Chanbasappayya and his descendants. The relationship of the parties to the said Chanbasappayya will be apparent from the subjoined pedigree: Chanbasappayya |---------------------------------| | Chanbasayya Basappayya | Gangadharayya (adopted son) ____________ | | Chandasayya Rajashekharayya (Deft. No. 3) (Deft. No. 4) -----------------------------------------------| | | | | | | | Gangadharayya Chanayya=Basawwa Chanbasayya Mahalinga (Deft No. 1)|| | Sangayya Gangadharayya(Plantiff, adopted son) (Deft No.2) It is common ground that after the death of the ancestor Chanbasappayya the family property, with the exception of some fields, was divided between the two branches represented by his sons Chanbasayya and Basappayya. After the adoption of Basappayya's son Gangadharayya into the other branch, the only surviving members in Basappayya's branch were his sons Chanayya, Chanbasayya and Mahalingayya. Chanayya died on July 29, 1925, leaving a widow Basawwa. Chanbasayya died unmarried on or about December 11, 1933. On his death the only surviving male coparcener in the branch of Basappayya was Mahalingayya, defendant No. 1. The only other member of the joint family was Basawwa, the widow of Chanayya. Basawwa adopted the plaintiff on August 5, 1935, and upon that adoption this suit was instituted by him on August 2, 1939, for claiming a share in the property in the hands of defendant No. 1 and his son, defendant No. 2, who was born in 1936.

(2.) IT is necessary to note that Chanbasayya was not quite normal in mind. On or about April 13, 1933, he agreed to relinquish his share in favour of his brother Mahalingayya who had applied to the Mamlatdar to delete Chanbasayya's name from the records as joint owner of the family property. Chanbasayya appeared before the Mamlatdar and stated his reasons for accepting the suggestion of his brother (vide exhibit 92). The effect of that statement to the Mamlatdar is the subject of controversy in this appeal and will be dealt with in considering Mahalingayya's contention founded upon that relinquishment. Mahalingayya denied the factum of adoption of the plaintiff and further contended that that adoption, even if proved, did not operate to create an interest in the property in dispute in the adopted son, inasmuch as the coparcenary had terminated upon the alleged relinquishment "under a family arrangement", prior to the plaintiff's adoption, of Chanbasayya's entire interest in the joint family estate. In regard to the claim for accounts of the arms and ammunition shop, it was urged that it was the individual business of Mahalingayya, he having started it out of his private funds, and alternatively that, if it were held to be family property, the plaintiff must be made to undertake the obligation to pay his proportionate share of the debt borrowed on a mortgage of certain lands by Mahalingayya to carry on the shop's business. Lastly it was contended that as a result of the alleged relinquishment of Chanbasayya's share in the family property, that share became the separate property of Mahalingayya in whose favour the relinquishment was made and therefore would not be liable to partition in the suit by the plaintiff.

(3.) IT is now well established that in this Presidency a Hindu widow, unless she is expressly forbidden by her husband to adopt a son to him, can make an adoption, notwithstanding the fact that the husband died undivided, without obtaining the consent of the surviving coparcener or coparceners [see Bhimabai v. Guruathgouda Khandappagouda (1932) L.R. 60 I.A. 25, s.c. 35 Bom. L.R. 200]. In regard to the limitations to that right I might refer to the following propositions laid down by a full bench of this Court in Balu Sakharam v. Lahoo (1936) 39 Bom. L.R. 382, F.B. (p. 414): ...where a coparcenery exists at the date of the adoption, the adopted son becomes a member of the coparcenary, and takes his share in the joint property accordingly,...where the adoption takes place after the termination of the coparcenery by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a predeceased coparcener has not the effect of reviving the coparcenery, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.