SHIVAPPA GURAPPA SHETTAR Vs. VIRBHADRAPPA SHIVARUDRAPPA KALASPUR

JUDGEMENT

(1.) THE facts of this case are undisputed. THE property in suit belonged to one Totappa Karabasappa who died in 1897 leaving behind him two widows Rachawwa and Rudrawwa but no issue. Before his death he made a will to the effect that after his death his two widows should enjoy his moveable property and the income from his immoveable property, that they should not alienate the immoveable property by sale or mortgage, that if they did not agree, they should divide the property equally between themselves, that on the death of one of them the survivor should enjoy the whole property and that on the death of both of them his next heir Gurappa or his heirs should take possession of and enjoy his immoveable property. Gurappa was Totappa's grand-father's brother's grandson.

(2.) RACHAWWA died in 1922 and then the surviving widow Rudrawwa took defendant No.1 in adoption on March 21, 1927. Gurappa died thereafter in 1934 during Rudrawwa's lifetime, and the plaintiff is his son and heir. Rudrawwa having died on April 1, 1936, the plaintiff brought this suit to recover possession of Totappa's immoveable property from defendant No.1 and his tenants, alleging that it had vested in his father Gurappa under Totappa's will, and that as the will contained an implied prohibition of adoption of a son by either of his widows, the adoption of defendant No.1 by Rudrawwa was invalid.

(3.) THESE are all the pertinent recitals in the will. If Totappa really wanted to prohibit his widows from adopting a son to him, it is strange that after giving all the detailed instructions with such meticulous care to his widows as to how they should behave after his death and what they should do, ho did not tell them what they should not do. It is not that the matter of adoption was not present before his mind or that it had slipped from his memory. He did refer to it and say that he had not taken anybody in adoption. He could have easily avoided all this litigation by adding one sentence that his widows also should not adopt anybody after his death. Possibly he did not want to fetter their discretion and left the matter to their choice.