MALOJIRAO ABAJIRAO Vs. TARABAI NATHAJIRAO

JUDGEMENT

(1.) THIS appeal arises out of a judgment and decree passed by the learned Civil Judge (S. D.) at Satara in Special Suit No. 15 of 1950. This suit has been filed by the plaintiff-appellant Kalojirao Abajirao Bhoite for a declaration that he is the Owner of the suit properties and accordingly entitled to enjoy the income and recover possession of these properties from the defendants. The suit properties comprise of serial numbers 1 to 24 and a Wada situated at Hingangaon, a village in the district of North Satara. The suit had been filed upon a contention that the plaintiff was adopted by Abajirao Nathaji as a son to himself on 12-9-1913. The suit has been resisted by the defendants upon the grounds (1) that the plaintiff's adoption by Abajirao was invalid as Abajirao was an idiot and of unsound mind and also a leper and that therefore the plaintiff is not entitled to succeed to the estate of Abajirao, (2) that Maruti Tukaram the husband of defendant 1, was adopted by Bai Babai, widow, of Maruti Abajirao as a son to her deceased husband and was thereafter known as Nathaji Maruti, (3) that after the death of Maruti Tukaram, whose name changed to Nathai Maruti after his adoption by Bai Babaisaheb, his widow, defendant 1, adopted defendant 2 as a son to her deceased husband, (4) that the suit properties had become Stridhan properties of Bai Babai by reason of her adverse possession thereof, and (5) that defendants 1 and 2 being the stridhan heirs of Bai Babai are entitled to succeed to the suit properties. The learned trial Judge has held all the three adoptions proved, namely, the adoption of the plaintiff by Abajirao, the adoption of Maruti Tukaram, the husband of defendant 1, by Bai Babai, the widow of Maruti Abajirao, and the adoption of defendant 2 by defendant 1. He has further held that the properties at serial Nos. 1 and 2 and the Wada were given by the plaintiff to Bai Babai for her maintenance in the year 1931 and therefore the plaintiff is entitled to the exclusive possession of these properties. So far as the properties at serials Nos. 3 to 24 are concerned, the learned Civil Judge has found that Bai Babai was in adverse possession thereof from 1933 till her death in 1947, that therefore these properties ensured to the estate of Abajirao upon the death of Bai Babai and that accordingly the plaintiff, as the adopted son of Abajirao, is entitled to half share therein and the defendants, by virtue of the adoptions made by Bai Babai and by defendant 1, are entitled to the other half share therein. The plaintiff and defendants 1 and 2 being dissatisfied with these findings have appealed and cross-objected against them. The plaintiff con tends in the appeal that there was no valid adoption of Maruti Tukaram, the husband of defendant 1, by Bai Babai, that there was no valid adoption of defendant 2 by defendant 1, that even if the adoption of defendant 2 by defendant - 1 be held proved, it would be of no avail in the absence of a valid adoption of Maruti Tukaram by Bai Babai, that the possession of the proper ties at serial Nos. 3 to 24 by Bai Babai was not adverse, that even if it was adverse, possession by Bai Babai, the plaintiff is the only stridhan heir of Bai Babai, as Bai Babai had no issue from her husband and as there was no valid adoption of Maruti Tukaram by Bai Babai and that therefore the plaintiff is entitled to the exclusive possession of the suit properties. The defendants, on the other hand, challenge the validity of the plaintiff's adoption by Abajirao. They contend that the plain tiff's adoption was invalid and therefore the suit must fail.

(2.) IN order to appreciate the contentions of the parties to this litigation, it is necessary to set out the relevant facts. One Nathaji Maloji was the owner of a large estate including the suit properties. His only son Abajirao was a simpleton. He was suffering from the defects of inarticulate speech and deafness. He had married about five times and had a son of the name of Maruti. Maruti was married to Bai Babai. This Maruti predeceased his father Abajirao. He died on 15-5-1912. As Nathaji Maloji was getting advanced in age and as he felt that Abajirao was a simpelton, he applied in the year 1894 to the District Court; and in that application he prayed that the Collector of Satara in his capacity as Court of Wards should be requested to take over the management of his estate. In that application Nathaji Maloji alleged that he had become old and that his son Abajirao was a lunatic and incapable of managing a large estate. Upon the above mentioned application of Nathaji Maloji, the District Court at Satara directed the Collector to take charge of Nathaji's estate, but for reasons which are not clear on the record, the Collector of Satara did not take charge of Nathaji's properties. When Nathaji saw that the Collector for some reason was not willing to take over the management of his estate, he made a will of his entire estate on 10-7-1900. By that will he appointed his friend and creditor, one Rautimal, as an administrator of his entire estate. A fortnight later. on 25-7-1900, Nathaji died and Rautimal took possession of his entire estate in his capacity as an administrator appointed under the will of Nathaji. Rautimal filed Misc. Appln. No. 3 of 1900 for obtaining a probate of the will and for recovering possession of Nathaji's estate. In that application Rautimal obtained a probate of the will and also got possession of the entire estate of Nathaji Maloji. In the year 1902, Abajirao filed Misc. Appln. No. 89 to the District Court of Satara praying for accounts of the income of his estate from Rautimal. He also prayed for the revocation of the grant of probate of his father Nathaji's will to Rautimal. Upon that application, which was filed by Abajirao, the Court instituted an inquiry regarding sanity or soundness of mind of Abajirao. Abajirao was kept for several days under the observation of the Civil Surgeon of Satara and the Civil Surgeon opined that lie was of sound mind and was suffering from the defects of inarticulate speech and deafness. Ultimately Abajirao and Rautimal compromised their dispute, whereafter Rautimal managed the estate of Abajirao as the agent of Abajirao. On 12-9-1913, Abajirao adopted the present plaintiff. Malojirao and executed an adoption-deed in that connection. The adoption-deed itself Ex. 99 was executed on 22-9-1913. It may be noted that after the above-mentioned adoption-deed, both the plaintiff and his adoptive father, Abajirao started alienating some of the family properties. In the year 1916, Abajirao filed Suit No. 20.) against Rautimal and Bai Babai and in that suit he asked for a declaration that the kabulayats, which had been taken by Rautimal in respect of the suit properties, were wrongfully taken and were therefore void. He also asked for an injunction to restrain Rautimal from recovering the amounts of rent from the tenants under suit kabulayats. In the said suit Abajirao also asked for accounts of the income of the properties from Rautimal. It may be noted that Abajirao died in the year 1918. Thereafter the present plaintiff, Malojirao, as the adopted son of Abajirao, prosecuted the above-mentioned Suit No. 205 of 1916. The suit was decreed on 29-9-1919. By the decretal order the possession of the suit properties was ordered to be given to the present plaintiff. It was a decree which was passed against Rautimal and Bai Babai. After the decree was passed Bai Babai took the matter to arbitration for the settlement of her dispute With the present plaintiff. The arbitrators gave their award in the same year, that is, in the year 1919 and it was provided by the award that Bai Babai and the present plaintiff Malojirao should have a Wada in Hingangaon, where Bai Babai should be permitted to live according to the dignity of the family. It was provided that if Bai Babai and this plaintiff Malojirao could not agree, a portion of the Wada, namely, a portion of 10 khans, should be given to Bai Babai for her residence. It was further provided that the present plaintiff should go on paying Rs. 400/- a year towards the maintenance of Bai Babai. This amount of Rs. 400/-was to be paid in two instalments every year, the first instalment of Rs. 200/- falling at the end of January of each year and the next instalment of Rs. 200 falling at the end of March every year. It was also provided that a sum of Rs. 5000/-should be paid by Malojirao to Bai Babai for pilgrimage. This award was filed in the Court by Bai Babai herself and a decree was passed by the Court in terms of the award. Thereafter in the year 1931, on 28-5-1931 to be precise, an agreement took place between Malojirao and Bai Babai. Pursuant to this agreement three properties, namely, S. Nos. 25, 420 and 192 of Hingangaon were given to Bai Babai for maintenance. The total annual income from these properties was about Rs. 300/ -. These lands were, given to Bai Babai together with the trees, shrubs, well, water course, etc. , which were situated upon these lands. Five months later, on 24-8-1931, the above-mentioned agreement was substituted by another agreement, according to which two lands, namely, S. N. 26 and S. No. 38 of Hingangaon, were given to Bai Babai by the present plaintiff Malojirao for her maintenance. The area of S. No. 26 was 7 acres and 17 gunthas and its assessment was Rs. 32-8-0. The area of S. No. 33 was 7 acres and 24 gunthas. The approximate value of these two properties was Rs. 1500/ -. It would appear that the above mentioned two properties, namely, S. No. 26 and S. No. 38 of Hingangaon are the suit properties at serial Nos. 1 and 2.

(3.) PROCEEDING further, in the year 1934, Bai Babai executed and adoption deed, Ex. 187 on 25-10-1934. By this deed, Bai Babai purported to adopt Maruti Tukaram, the husband of the present defendant 1 Tarabai, as a son to her deceased husband Maruti Abajirao. After the adoption the boy Maruti Tukaram, who was then (in the year 1934) about 10 years of age, was named Nathaji Maruti. After this alleged adoption of Maruti Tukaram by Bai Babai, a group photograph was taken. At that time, that is, in the year 1934, Maruti Tukaram was attending a school in Bombay. Two applications were sent to the authorities of that school. The first application was made on 5-7-1935 and the second application was made on 11-12-1935. By those applications, a request was made to the school authorities to change the name of Maruti Tukaram into Nathaji Maruti. The school authorities, however, did not agree. They replied to the first application, by Ex. 116. It was stated by the school authorities in this reply that unless a certificate of a Justice of the Peace or a Magistrate was sent to the School authorities in support of the change of name from Maruti Tukaram to Nathaji Maruti, the change could not be effected in the records of the school. It was pointed out by the school authorities in this reply that if for some reason such a certificate was not obtainable from a Justice of the Peace or a Magistrate, the original papers pertaining to the making of a change in the name of the boy Maruti Tukaram should be forwarded to them. By Ex. 117, the school authorities replied to the subsequent application. By this reply the school authorities stated that if the papers pertaining to the alleged adoption of the boy Maruti Tukaram were forwarded to them, then only the name of Maruti Tukaram could be changed to Nathaji Maruti in the records of the school. It may be noted that notwithstanding these replies of the school authorities, which were sent to Bai Babai, no attempt was made by Bai Babai or anybody else on her behalf to send the adoption deed, Ex. 187, or the group photograph in support of their contention that the boy Maruti Tukaram was taken in adoption by Bai Babai and that thereafter his name was changed to Nathai Maruti. In the same year, that is, in the year, 1934, Bai Babai filed Suit No. 92 against the present plaintiff Malojirao and Rautimal for recovering possession of Abajirao's properties. In that suit one Tukaram Bala Jadhav, purporting to act as the next friend of the alleged adopted boy Nathaji Maruti, applied to the Court that since Nathaji Maruti had been adopted by Bai Babai as a son to her deceased husband, his name should be entered as a co-plaintiff in the suit. This application was granted by the Court. Bai Babai also had applied to the Court in the same connection stating that on 25-10-1934 she had adopted Nathaji Maruti as a son to her deceased husband and that therefore his name should be entered along with that of herself as the plaintiff in the suit. It may be noted that the above-mentioned Suit No. 92 of 1934 was withdrawn later on by Nathaji Maruti, the alleged adopted boy, with permission to file a fresh suit on the same cause of action. Subsequently, Nathaji Maruti filed another Suit -No 125 of 1935 in which he asked for a declaration that he was the adopted son of Maruti Abajirao and that he had been adopted by Bai Babai. He also asked for accounts of the properties and for recovering possession thereof from Malojirao and Rautimal. It is important to bear in mind that this suit also was withdrawn in March 1939 by Nathaji Maruti with permission to file a fresh suit. No other suit, however, was subsequently filed by Nathaji Maruti against the present plaintiff, Malojirao, to recover possession of Abajirao's properties from him. At this stage, it may be noted that Nathaji Maruti had made an application, Ex. 121 under the B. A. D. R. Act to a Court at Wai against Gangaram for recovering a debt under a promissory-note, which was alleged to be due from the said Gangaram. The defendants rely upon this circumstance in support of their contention that Maruti Tukaram had become Nathaji Maruti by reason of his adoption by Bai Babai. A use is made by the defendants of the circumstance that in the above mentioned application Ex. 121, the name Nathaji Maruti, and not the name Maruti Tukaram, was used by the maker of the application.