BHIMABAI KRISHNAPPA DESAI Vs. TAYAPPA MURARRAO NADGAUDA

JUDGEMENT

(1.) THE suit out of which this appeal arises was brought by the plaintiff to recover certain vatan property on the ground that he was the heir of the last male holder, one Bhogapa. THE parties concerned are related in the manner shown in the following tree : KRISHNAPPA | --------------------------------------| | Ramapa Bhosapa (plaintiff) | Krishnapa=Bhimabai(defendant) Krishnapa, son of Bhogapa died in April 1888. In 1899 Bhimabai, the defendant I, adopted a boy named Bhogapa, who in 1902 died unmarried. In 1904 Bhimabai made another adoption, this time of a boy named Jerav, the 10th defendant.

(2.) THE only question which falls to be decided in this appeal is whether this second adoption by Bhimabai is valid or not. THE contention for the plaintiff is that it is invalid, Bhimabai's power of adopting being at an end on the death of the first adopted son, Bhogapa.

(3.) IT is contended by Mr. Jayakar for the defendant-appellants that the decision in Bhoobun Moyee's case proceeded, not on the ground that Chandrabali's adoption divested the vested estate of the deceased son's heir, but upon the narrow grounds of ceremonial competence peculiar to that case ; that is to say, the argument is that Chandrabali's adoption was pronounced invalid because Bhavanikishor had lived to an age which enabled him to perform all the customary services for the benefit of his father and had left his widow surviving. And counsel points to the passage at p. 311 of the report, where their Lordships say: " If Bhowanee Kishore had died unmanied, his mother, Chundrabullee Debia, would have been his heir, and the question of adoption would have stood on quite different grounds." This passage, however, as I understand it, is adverse to the present appellants. In the present case, owing to the provisions of the Watan Act, Bhimabai was no more the heir of the last male holder, Bhogapa, than was Chandrabali the heir of Bhavanikishor ; and the case so far is exactly on all fours with the case before the Privy Council. Moreover, even if the test were merely ceremonial competence, it does not appear that the last male holder's widow would be in any better position than the agnate male heir, Ramapa. But the words which follow the passage just cited seem to me to leave no room for doubt as to the basis of their Lordships' judgment. Referring to the hypothesis that Chandrabali had been her son's heir, the judgment proceeds:-" By exercising the power of adoption, she would have divested no estate but her own, and this would have brought the case within the ordinary rule; but no case has been produced, no decision has been cited from the text-books, and no principle has been stated to show that by the mere gift of a power of adoption to the widow, the estate of the heir of a deceased son vested in possession, can be defeated and divested." Here I think we --have the summary and culmination of the judgment; and if this is the true ground and principle of the decision, then clearly the appellants are out of Court, for what the mother seeks to do by this second adoption is precisely to defeat and divest the estate of the deceased son's heir vested in possession.