ANANT BHIKAPPA PATIL Vs. SHANKAR RAMCHANDRA PATIL

JUDGEMENT

(1.) THE appellant Anant brought the present suit in 1932 to recover certain watan properties from the respondent Shankar to whom possession had been given in 1928 by order of a Revenue Court. THE properties in suit are the patilki right and the patilki watan lands of the village of Alnavar in the District of Dharwar in the Province of Bombay. Those properties are governed by the Bombay Hereditary Offices Act (Bombay Act III of 1874) as amended by Bombay Act V of 1886, which imposes upon them a special rule of succession whereby every female, other, than the widow of the last male owner, is postponed to every male member of the watan family qualified to inherit. No other feature special to watan property was relied on or discussed in the Courts in India or mentioned in the printed cases lodged by the parties upon this appeal; and their Lordships are not called upon or prepared to consider whether upon other grounds the law applicable to watandars or watan property varies from the ordinary Hindu law.

(2.) THE family are governed by the Mitakshara and the pedigree table hereunder given represents it sufficiently for the purposes of the case : Dhulappa |------------------------------| | Punnappa Hanmantappa d. 1904 | | | -----------------------Ramchandra | | | | Gundappa Bhikappa Narayan ------------------ d. 1902 d.1905 d. 1908 |=Gangabai Shankar |-------------- |Hamumant |Babu |Keshav |Anani d. 1917 adopted 1930plaintiff

(3.) IN Chandra v. Gojarabai (1890) I.L.R. 14 Bom. 463 it had been held that on the death of the sole surviving coparcener an adoption to a predeceased coparcener was ineffective to take property which had belonged to the joint family out of the hands of the former's heir and vest it in the adopted son. The decision was understood by the Board in Bhimabai v. Gurunathgouda Khandappagouda (1932) L.R. 60 I.A. 25, 40 : s.c. 35 Bom. L.R. 200 to mean that the adoption was invalid. IN Chandra's case Bhau and Nana were undivided brothers. Nana survived all the other male members of the family and on his death without issue his widow Gojarabai took the family property by inheritance from him. After that Bhau's widow adopted the plaintiff who sued Gojarabai to recover the property. The judgment of the Court (Sargent C.J. and Telang J.) was delivered by Telang J., a distinguished learned Judge of special competence on questions of Hindu law. The ultimate ground of decision was that " strictly speaking according to the view taken by our Courts, there was at Nana's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption." (p. 471). This reasoning had been questioned by Seshagiri Ayyar J. in Madana Mohana v. Purushothama (1914) I.L.R. 38 Mad. 1105, 1118; also by Venkatasubba Rao J. in Panyam v. Ramalakshmamma (1931) I.L.R. 55 Mad. 581,590 After Amarendra Mansingh v. Sanatan Singh (1933) L.R. 60 I.A. 242 : s.c. 35 Bom. L.R. 859 had cast further doubt upon it, a full bench of the High Court of Bombay had in Balu Sakharam v. Lohoo Sambhaji [1937] Bom. 508 : s.c. (1936) 39 Bom. L.R. 382, F.B. dealt with the matter, the judgment of the full bench being that of Beaumont C, J. with which N. J. Wadia J. agreed and from which Rangnekar J. dissented. IN that case as in Chandra's case the property at the date of the adoption to a pre-deceased coparcener had. already vested in an heir of the last male holder nearer to him than a natural born son of the predeceased coparcener would have been. The present case is different in that the plaintiff, if he is an heir of Keshav, is a nearer heir than the defendant. The learned Chief Justice dealt with both types of case and held that in neither case did the adoption have effect to vest the property in the adopted son. His view was that an adoption made after the termination of the coparcenary does not vest in the adopted son the interest in joint family property which would have vested in a natural born son of the adoptive father; also that Amaredra's case had not disturbed the rule of law that an adoption by the widow of a divided Hindu does not divest any estate of inheritance unless the estate was then vested in the adopting widow as heir either to her husband or to a deceased son. Upon that view it is irrelevant that as an heir to Keshav a brother would be nearer than the defendant Shankar.