VISHWASRAO VITHOBA Vs. SAHEBRAO YESHWANTRAO

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a decision of Mr. Justice Mudholkar, affirming the decree passed by the learned First Additional District Judge, East Berar Division, Amravati, in Civil Appeal No. 57-A of 1944. Civil Appeal No. 57-A of 1944 arose out of Civil Suit No. 111-A of 1940 which was heard and decided by the learned Additional Subordinate Judge, Second Class, Chandur. It was a suit for partition of joint family property, plaintiff No. 3 claiming partition as the adopted son of defendant No. 2. The trial Court held that the adoption of plaintiff No. 3 was a valid adoption and decreed the suit. On defendant No. 1 appealing from the decision of the trial Court, the first appellate Court confirmed the decree and dismissed the appeal.

(2.) ONE Balaji had three sons, Vithoba, Sheoram and Harba. Sheoram separated from the family, taking away his share in the joint family property. Thereafter, there remained Vithoba and Harba who continued to be Joint. Vithoba died on 2-12-1897, leaving behind him surviving three sons, Maroti, Ramrao and Vishwasrao. Vishwasrao is defendant No. 1. Ramrao's grandson Anandrao died, leaving behind him surviving his widow Geeta, who is defendant No. 3. Harba died on 24-9-1927, leaving behind him surviving his widow Annapurna, who is defendant No. 2. It is this Annapurna, defendant No. 2, who adopted Mahadeo, the present plaintiff No. 3, as a son to her deceased husband on 23-12-1939. Plaintiffs Nos. 1 and 2 are the transferees from plaintiff No. 3. The family of plaintiff No. 3 and defendants Nos. 1, 2 and 3 is a Maratha Kunbi family of Berar, and it may be noted that plaintiff No. 3 was a married person, at the date of his adoption by defendant No. 2. As I have just said, the plaintiffs have based the suit on the adoption of plaintiff No, 3 by defendant No. 2. The adoption has been held valid by the trial Court and also by the first appellate Court, and the said finding has been confirmed by Mr. Justice Mudholkar. It is that finding which is challenged in this Letters Patent Appeal.

(3.) THUS, this appeal raises an interesting point of law, and the point is whether amongst the Sudra community of Berar a married person can be validly adopted as a son. It is beyond controversy that the lex loci in Berar is the Mitakshara as interpreted in the Bombay Presidency. This position is not disputed and indeed it could not be disputed, in Ramprasad y. Mt. Sububai, 4 Nag LR 31 (A), decided on 4-1-1908, it was held that the lex loci in Berar was the Mitakshara as interpreted in the Bombay Presidency. It was a case from East Berar and the school of law which was applied was the Mitakshara as interpreted in the Bombay Presidency. In the case of Harigir Kisangir v. Anand Bharthl Vishnu Bharathi, 21 Nag LR 127: (AIR 1925 PC 127) (B), the Privy Council also took the view that except so far as the particular customs of the community to which the parties belonged applied, the parties were governed by the usual law as to Hindus, which in Berar was the same as the Hindu law in the Presidency of Bombay. It is apposite to remember that in making these observations, the Judicial Committee followed their own decision in the case of Balwant Rao v. Baji Rao, 16 Nag LR 187: (AIR 1921 PC 59) (C ). In Girjabai v. Vyankatesh, 2 Berar LJ 135 (D), the learned Judicial Commissioner stated it as the practice of the Judicial Commissioner's Court of Berar that the Hindu law compounded of Mitab-shara, Mayukha and custom which obtained in the Bombay Presidency was applicable to Mara-thas in Berar.