IRAPPA LOKAPPA VASTRAD Vs. RACHAYYA MADIWALAYYA

JUDGEMENT

(1.) THIS appeal raises a short and interesting question with regard to the law of adoption. The plaintiff, who is the first respondent before us, claimed to be the adopted son of one Shivalingayya, and filed the suit to recover possession of his half share in the suit property from the first defendant Irappa, who was his paternal uncle, and the second defendant Gurbasappa, who was the son of Irappa. Shivalingayya, the plaintiff's adoptive father, and his younger brother Irappa were the sons of one Lokappa who died in the year 1915. Shivalingayya himself died in 1925. At the time of his death he was joint with his brother Irappa. He left a widow Parawwa who was defendant No.3 in the case and who is respondent No.2 before us. On September 18, 1933, Irappa and his son Gurbasappa, who were at the time the only members of the coparcenary, divided. The partition deed (exhibit 70) mentions that the partition had been effected because Gurbasappa, who had come of age, had taken to bad habits and bad company and was constantly quarrelling with his father and demanding separation. The property of the family was partitioned. The deed mentioned that Parawwa kom Shivalingayya, the widow of Irappa's brother, had obtained a decree in the Bijapur Court awarding her maintenance at Rs. 165 per annumand provided that this maintenance should be paid to her by Gurbasappa alone. About two months after this partition, on November 10, 1933, Parawwa adopted the plaintiff, and on January 24, 1935, the plaintiff filed the suit out of which this appeal arises to recover a half share in the family property from Irappa and Gurbasappa.

(2.) THE defendants had contended inter alia that in fact no adoption had taken place although an adoption deed had been executed, and that the adoption was also invalid because of the unchastity of Parawwa. THE learned Judge has found that unchastity on the part of Parawwa during the lifetime of her husband had not been proved, and this point was not seriously pressed before him. At the trial the defendants admitted the factum of the plaintiff's adoption, and the plaintiff admitted that there had been a partition between defendants Nos. 1 and 2 on September 18, 1933. But he added that that admission was subject to his right to show that the partition was not bona fide and was intended to defeat the rights of others. No issue was sought or raised with regard to the dishonest nature of the partition. THE learned Judge found on the admission of the plaintiff himself that the partition had taken place, and on the admission of the defendants, that the plaintiff's adoption had taken place on November 10, 1933. He held that the adoption was valid.

(3.) MR. Madbhavi for the respondent-plaintiff contends that his case is similar to Chanbasappa v. Huchappa, and that on the principle there laid down he is entitled to a share in the property which Irappa and Gurbasappa took at the partition. We are unable to accept this contention. The present case is clearly distinguishable. In that case there was a member of the plaintiffs branch who took a share at the time of the partition, and the view which the learned Chief Justice took was that by reason of the partition the original coparcenary came to an end, but new coparcenaries were created between the two dividing branches, one branch being represented by defendants Nos. 1, 2 and 4 in that case, and the other branch being represented by defendant No.3, and that a joint family continued within defendant No 3's own branch represented by himself and Virawwa, the widow of his predeceased uncle. In the case before us there was no representative of Shivalingayya's (i. e. plaintiff's) branch at the time of the partition. The only coparceners were defendants Nos. 1 and 2 representing the other branch and after the partition there could be no state of jointness between either of them and Parawwa, the widow of Shivalingayya. The mere fact that by the partition deed Gurbasappa undertook the liability to pay the maintenance which had been awarded to Parawwa, the widow of Shivalingayya, by the Civil Court, did not create any state of jointness between Gurbasappa and Parawwa, and the subsequent adoption of the plaintiff by Parawwa could not possibly have the effect of reviving the coparcenary between Gurbasappa and Irappa which had terminated by the partition ; nor could it give the plaintiff, the adopted son, any right to divest either of them of the property which they had taken at the partition. That property ceased to be joint family property from the date of the partition. The facts in this case are, in our opinion, exactly similar to the facts in Shivappa Jayappa v. Yagappa Shiddappa and the decision in that case is binding on us. On this view of the case, although Parawwa was legally entitled to adopt, and the plaintiff's adoption is therefore valid, the plaintiff would by the adoption acquire no right to a share in the joint family property which had already been partitioned two months before his adoption. His suit must fail. The appeal will therefore be allowed and the plaintiff's suit dismissed. Appellants Nos. 1 and 2 will get their costs throughout from the first respondent, plaintiff. 1. Under Order XXXIII, Rule 11, of the Civil Procedure Code, we direct that the plaintiff should pay the Court fees in the suit. .