BAI FAIBA Vs. CHUDASMA JORUBHA GAJUBHA

JUDGEMENT

(1.) THIS appeal from the judgment and decree of the Court of the First Class Subordinate Judge, Ahmedabad, in civil suit No.893 of 1937 raises, on the findings made by the lower Court and submissions made to us, an important question of law. The dispute related to an undivided one-anna share in the Talukdari estate of the village of Kharad in Dhandhuka taluka of the Ahmedabad District. The relationship of the parties to the suit is shown by the genealogy in the judgment of the lower Court. The ancestor of the parties was one Akhabhai who died leaving two sons, Abhesang and Dehabhai. Although the matter was in dispute before the trial Court, it is now conceded, as found by the learned trial Judge, that Abhesang and Dehabhai were divided and that the property in suit came to the share of Dehabhai. Dehabhai had a son, Dajibhai. Dajibhai died leaving two sons, Ramabhai and Balubhai. In the trial Court a question arose whether Ramabhai and Balubhai were joint or divided. It has been found by the learned trial Judge that they were joint, and this finding is not disputed before us. Balubhai died in 1902 leaving his widow Bai Faiba, defendant No.1. Ramabhai had a son, Vakhatsing, who died in 1913 leaving a son Anupsing who died in 191 & during his minority. Thus so far as Dehabhai's branch is concerned, Anupsing was the sole surviving coparcener. On Anupsing's death the property vested in defendant No.1 as the widow of a gotraja sapinda succeeding to the estate of Anupsing, the sole surviving coparcener. In 1931 Bai Faiba, defendant No.1, adopted defendant No.2. Thereupon the plaintiffs who are the representatives of the branch of Abhesang filed the present suit for a declaration that defendant No.1 had no right to adopt and that the adoption of defendant No.2 by her was not valid and lawful. They also asked for a declaration that defendant No.2 did not acquire any rights over the properties as a result of his adoption. In support of this contention, the plaintiffs relied not only upon the law on the subject but also based their case on an agreement, exhibit 69, dated December 9, 1920, passed by defendant No.1 to. plaintiffs Nos. 3 and 4 .The plaintiffs alleged that by exhibit 69 she surrendered her right of adoption.

(2.) THE defendants resisted the suit on the ground that the deed dated December 9, 1920, was obtained by the plaintiffs by means of fraud and misrepresentation, was opposed to public policy, and was void for absence of consideration. It was contended that there was a partition between Ramabhai and Balubhai, that Ramabhai's property had come by way of inheritance to Anupsing and that on Anupsing's death defendant No.1 had succeeded to the estate. It was asserted that she had every right to adopt in spite of the document exhibit 69 and that the adoption had in fact taken place. THE adoption, it was contended, was legal and valid, conferred title to the property on defendant No.2, and that, therefore, the plaintiff's suit should be dismissed with costs.

(3.) THE lower Court has dealt with the matter as follows : As there was no partition between Balubhai and Vakhatsing, Vakhatsing alone as a member of a joint family with Balubhai got whole estate in 1902. Anopsing, however, died in 1919 unmarried at the age of 15 and the whole estate came to defendant No.1 as the only widow of a coparcener alive in that year. THE plaintiffs say that they are entitled to get this estate as reversioners of Anopsing subject to the life estate of defendant No.1 and the defendants allege that defendant No.1 was entitled to inherit the estate of Anopsing on his death as a widow of a coparcener. THE adoption of defendant No.2 took place after the termination of the co-parcet nary on the death of Anopsing in 1919 and so it had not the effect of reviving the co-parcenary and defendant No.2 does not get any interest in the property which was once enjoyed by Balubhai and Vakhatsing and which is now in the management of defendant No.1 as a widow of a coparcener after the death of Anopsing (vide the case of Balu Sakharam v. Lahoo, 39 Bom. L. R. 382, followed in the case of Rudrappa Yellappa Sattennabar v. Mallappa Malleshappa, 41 Bora. L. R. 1277 ). THE adoption by the widow of a co-parcener who was not the last male holder is regarded valid by the above mentioned decisions but such an adoption does not divest the property. THE full bench decision of Balu Sakharam v. Lahoo has since been overruled by the Privy Council in Anant Bhikappa Palil v. Shankar Ramchandra Patil (1943) 46 Bom. L. R. 1, p. c. and the question, therefore, arises whether as a result of this Privy Council decision, the view taken by the lower Court, based as it was on Balu Sakhamm v. Lahoo, is correct or not.