BALGONDA APPANNA PATIL Vs. BHIMGONDQ APPAYA PATIL

JUDGEMENT

(1.) In this appeal, Mr. Justice Shah and myself had, on the application of the appellants, heirs of original plaintiff, sent down an issue as to whether the adoption of the plaintiff had been duly sanctioned by a competent authority. The adoption of the plaintiff took place in 1900 and the trial Court has recorded a finding that Government have accorded ex post facto sanction to plaintiff's adoption and the same is valid. Some objections were raised before the trial Court as to the procedure followed in obtaining this sanction from Government. Those objections were negatived and Mr. Bhasme, learned advocate appearing on behalf of respondent No. 1, has not raised these objections before us.

(2.) But Mr. Bhasme has raised an interesting point of law as to whether the State Government was competent to accord ex post facto sanction to plaintiff's adoption in view of the provisions of the Hindu Adoptions and Maintenance Act, 1956. Though this point was not taken before us before we sent down the case for a finding and though the point was also not raised before the trial Court. We have allowed Mr. Bhasme to argue the point as it is a pure point of law. Mr. Bhasme's contention is that the Hindu Adoptions and Maintenance Act, 1956, which will hereafter be called as the Adoptions Act, came into force on 21st December 1956. The sanction was given by Government on 26th June 1957. But Mr. Bhasme contends that on the date that the sanction was given government were incompetent to accord that sanction by virtue of the provisions of S. 4 of the Act.

(3.) In order to examine Mr. Bhasme's argument, we shall have to refer to the position of adoptions in the former Kolhapur State. Plaintiff's adoption took place in 1900 and the Degest of Hindu Law in the Kolhapur State came into force in 1919, but that part of it which deals with adoptions by Hindus, known as Hindu Dattak Nabandh. came into force on 11th November 1920. S. 2(3) of this Nabandh saved the effect of the Vat Hukums passed by the Kolhapur Government in connection with adoptions. Under Political Agent judi Niyam of Fasli 1281, published in Volume 2 of the Kolhapur Vat Hukums, at at page 317, there was a provision under which the Kolhapur Darbar could accord sanction to adoptions which affected Inam properties. It appears from this Vat Hukum that the kolhapur Government had power to accord ex post facto sanction to adoptions which were made without getting such a sanction. Then there is Sarsubhe Vat No. 18 of 1907 which dealt with the procedure which was to be followed in order to get the sanction of the Kolhapur Government in such matters. There are other Vat Hukums also to which Mr. Bhasme drew our attention in this connection, but it is not necessary to refer to them for the purpose of this case. Mr. Bhasme argues that as a result of S. 4 of the Adoptions Act, the Diegest of Hindu Law at Kolhapur as well as the Vat Hukums dealing with adoptions were repealed, and Mr. Bhasme contends that, if that be so, the Government had no power to accord ex post facto sanction to the present adoption on 26th June 1957.