VITHAL Vs. ANSABAI

JUDGEMENT

(1.) Plaintiff has filed this appeal against a concurrent decree passed by both the Courts dismissing his suit for a declaration that he is the adopted son of one Deobhan Buwa and that he is entitled to possession of Survey No. 384/C admeasuring 9 acres 20 gunthas situate at village Isad, Taluka Gangakhed, and for perpetual injunction, His case in the plaint was that Deobhan died leaving two widows Yashodabai and Ansabai defendant No. 1. Both these widows adopted him on 10-7-1350 Fasli after performing due ceremonies and an adoption deed was executed which was registered at Shirad-Shahpur. According to the plaintiff, the original registered adoption-deed was in possession of defendant No. 1. He, however, was unable to produce a certified copy thereof as the records at Shirad-Shapur were transferred to the Office of the District Sub-Registrar, Parbhani and the same were burnt. His case was that in view of his adoption he became the owner of the suit property and was in possession thereof until June 20, 1965, when he was dispossessed by the defendants. It is on these allegations that the plaintiff has filed a suit for possession and injunction. The suit was resisted by both the defendants. The trial Court took the view that the plaintiff's adoption was not proved. After the evidence of both the sides was completed before the trial Court, an application was made on behalf of the plaintiff to produce a certified copy of the Registered adoption-deed, but the same was rejected by the trial Court. As the adoption of the plaintiff was not proved, the suit was dismissed. In an appeal preferred by the plaintiff, the learned Assistant Judge, Parbhani, took the view that the trial Court ought to have permitted the plaintiff to produce the certified copy of the registered adoption-deed. In view of an application also made before the appellate Court, the certified copy was taken on record. The appellate Court, however, took the view that the adoption was invalid as, according to the plaintiff, the adoption was made by both, the widows which, under the Hindu Law, is not permissible. As the adoption was held to be invalid, the suit was dismissed and it is against this dismissal of the suit by both the Courts that the present appeal is filed by the plaintiff.

(2.) Mr. Deo on behalf of the plaintiff submitted that the appellate Court was in error in taking the view that the plaintiff was adopted by both the widows Vashodabai and Ansabai, defendant No. 1. He urged that the adoption was done by Yeshodabai, the entire ceremonies were performed by her and that was done with the consent of Ansabai. He, therefore, submitted that the appellate Court was in error in taking the view that the adoption was made by both the widows and was, therefore, invalid in law. He submitted that in the certified copy of the registered adoption-deed that was produced by the plaintiff it is clearly mentioned that the adoption was made by Yesliodabai and not by both the widows.

(3.) Question whether the adoption was by Yeshodabai, one of the widows, or by both will depend upon the facts of this case. In the present case it is quite clear that the plaintiff was hardly 4 or 5 years old when his adoption took place. To support the case of adoption, plaintiff has led oral testimony of three witnesses, Venkatrao, Sambhajt and Sukhalabuwa. Each one of the three witnesses has stated in the beginning of the deposition that both Yeshodabai and Ansabai, defendant No. 1, adopted the plaintiff. If that was so, it is not possible for this Court te re-appreciate the evidence with a view to see what the view ought to be taken. The appellate Court has come to a conclusion; that having regard to the evidence of witnesses adduced on behalf of the plaintiff, was taken in adoption by both the widows Yeshodabai and Ansabai defendant No. 1 Hindu Law does not permit an adoption by even two co-widows together, what is the effect or validity of the adoption when such adoption is made by two co-widows has been considered by their Lordships of the Privy Council in the case at Narasimha v. Parthasarathy, (1914) ILR 37 Mad 199 (PC), At page 220 it is observed:--.