SHIVAPPA NARSAPPA PUJARI Vs. KARIYAPPA RAMAPPA DONUR

JUDGEMENT

(1.) THIS appeal has been preferred by defendant No. 2 in a suit by the plaintiff to recover possession of certain property. The plaintiff is the adopted son of one Ramappa and he has been adopted by his widow Karibasawa in 1921. The suit property belonged to one Sabu who died in 1904 or 1905 leaving a widow named Basawa. THIS widow was a minor and her guardian sold it in the first instance to one Shivappa in 1905 and the latter in turn sold the same to Mallappa. After1 his; death, the property has been sold by Mallappa's brother to the present defendant No. 2 who is the appellant before us. After the said sale by Basawa's guardian to Shivappa, Basawa remarried in 1906, and as a result the heir to Sabu's estate was the said Karibasawa, the widow of Ramappa who had died before Sabu in 1903. The relationship between Ramappa and Sabu is shown in the following pedigree: Yenkappa ______________________________ : : Sakreppa Fakirappa ____________________ Sabanna : : : : Yenkappa (adopted) Kareppa Sakreppa : : Ramappa = Karibasawa __________________ : : : : Yellapa Ramappa Kariyappa (plaintiff) : (given inadoption(adopted by Karibasawa) Sabu = Basawa to Venkappa)

(2.) THE present suit has been filed by the plaintiff as the adopted son of Ramappa to get possession of the suit property in the hands of the second defendant on the ground that by virtue of his adoption to Ramappa he has become entitled to the estate of Sabu and that the alienations by Basawa's guardian were unauthorised as they were not justified by legal necessity and therefore not binding on the holders of Sabu's estate. Both the lower Courts have come to the conclusion that the alienations by Basawa's guardian were not justified by legal necessity. It is, therefore, clear that if the plaintiff has proved that he has succeeded to the estate of Sabu, he would be entitled to recover the property from the appellant.

(3.) THIS point had been urged before the learned appellate Judge but he rejected it on the ground that the widow of a gotraja sapinda succeeding as heir stood in the same place as her husband, if living, would have occupied, and that she inherited the estate as a widow in the right of her husband and that that interest was therefore divested when she adopted a son to her husband. In my opinion, the learned Judge below was correct in this view. In our presidency widows of gotraja sapindas are given the right of inheritance mainly on the ground of usage, and that right has been recognised ever since the decision in Lulloobhoy Bappoobhoy v. Cassibai (1880) L.R. 7 I.A. 212 : S.C. I.L.R. 5 Bom. 110. It has been held, however, that although such widows are entitled to inherit in certain cases, they cannot do so until after the compact series of heirs was exhausted, and that when such a widow did inherit, she did so because she stood in the same; place as her husband, if living, would have1 occupied, and that if she succeeded to the estate of a male,, she took a widow's estate, and if she succeeded to the estate of a female, she took an absolute estate. It is conceded that Karibasawa, when she succeeded to the estate of Sabu, took a widow's estate. But it is urged that when she inherited the property, she did not do so as representing her husband's estate although she took it as she stood in the same place as her husband, if living, would have stood, but at the same time she got the property in her own right and that it did not form part of her husband's estate with the result that it would not vest in the adopted son immediately on his adoption. In my opinion, the distinction sought to be drawn between the two kinds of estates enjoyed by Karibasawa has no basis in Hindu law. If she inherited the property of Sabu in her capacity as the widow of a gotraja sapinda, she did so because as such she represented the estate of her husband Ramappa. It is clear that if Ramappa had been alive when Basawa remarried in 1906, he would have been entitled to the property. But Karibasawa got it because she was his widow and stood in the same place as her husband would have occupied if he was living. Therefore, if Karibasawa adopted a son to him, that son would be entitled to the estate of Ramappa or to any estate to which Ramappa would have been entitled if he had been living. It therefore follows that the property of Sabu would also vest in the plaintiff. In fact, the full bench decision to which I have referred above gives support to this conclusion in an indirect manner. If the adoption by the widow of a gotraja sapinda cannot affect the property vested in a reversioner, it does so because the widow is only enjoying a life estate, while the property is even contingently vested in the reversioner. If, however, as it is now held, the adoption is valid, it must follow, in my opinion, that the estate to which Ramappa would have been entitled if he were living is transferred from Karibasawa to the plaintiff as the adopted son. Karibasawa does not become any absolute owner or fresh stock of descent of the property. She would have the right to the possession of the property only in the absence of any absolute owner of this property, and the moment there is an absolute owner, her right must cease. The plaintiff becomes such absolute owner by virtue of the adoption, and hence he is entitled to recover the property from the defendants.