BABGONDA RAMGONDA PATIL Vs. ANNA NEMGONDA PATIL

JUDGEMENT

(1.) THE short question which arises for consideration in this Second Appeal is whether the alienation by the sole surviving coparcener can be challenged by a subsequently adopted son to a predeceased coparcener in the family by the widow of the said coparcener.

(2.) ONE Babangonda Patil had two sons Ramgonda and Nemgonda. Ramgonda dies in 1921 leaving behind his widow Satakka Nemgonda died in 1929 leaving behind a son Appa and his widow Sonubai. Appa died a couple of years later while he was unmarried and still a minor and his mother Sonubai succeeded to the joint family property which consisted of six lands and a house at the village Samboli in Tasgaon Taluka of the Sangli District. In 1941, Sonubai adopted Anna the Defendant No. 1 as a son to her deceased husband. On the 26th of July 1945, Anna, the Defendant No. 1, alienated six of the seven joint family properties by Exs. 81 and 82. Therefore, on the 19th of September 1945, Satakka, the widow of Ramgonda, adopted the present plaintiff and on the 28th of October 1946, the plaintiff filed the present suit against the Defendant No. 1 and the alienees challenging the alienations and claiming his half share by partition in all the seven properties which had belonged to the joint family and six out of which had been alienated by the Defendant No. 1. The suit was resisted by the defendants on several grounds, all of which are not necessary to be mentioned for the purposes of this appeal. One of the contentions was that the Defendant No. 1 being the sole surviving coparcener at the time when the alienations were effected on the 26th of July 1945, had the right to deal with properties as if he was the absolute owner thereof and the plaintiff who came into the family by a subsequent adoption could have no right to challenge the said alienations. This contention was accepted by both the Courts below and they held that the plaintiff could have no right to challenge the alienations. As to the remaining property which had not been alienated, the plaintiff was undoubtedly entitled to have a half share in the interest which the joint family had in their property. It was found, however, that there were other co-shares in the property and partition and separation of the plaintiff's share in that property could not be made in the absence of the said shares. Since the plaintiff had not joined the other co-shares in the said property to the suit nor was he willing to do so, the Courts could not gave him a decree in respect of the said property also. In the result, both the Courts below have dismissed the plaintiff's suit.

(3.) IN our opinion, the proposition that lawful alienations of the joint family property made by the sole surviving coparcener could not be challenged by a coparcener who has come into the joint family either by birth or adoption subsequent to the date of the alienation is well settled. In Veeranna v. Sayamma, ILR 52 Mad 398 = (AIR 1929 Mad 296), it was held :