HARIDAS KISANDAS GUJARATI Vs. NARAYANDAS JAGMOHANDAS GUJARATI

JUDGEMENT

(1.) THE litigation out of which this appeal arises has been caused by the adoption of plaintiff No. 1 Narayandas by plaintiff No. 2 Parwatibai, widow of one Jugmohandas Kisandas Gujarati. Jugmohandas died at the age of about fifty on January 1, 1919. He had at the time of his death an elder brother Madhavdas, and a younger brother Haridas, who was defendant No. 1 in the trial Court and who is appellant No. 1 in this Court. Defendants Nos. 2 and 3, Govinddas and Goverdhandas, are the sons of Bhikoobai, the only daughter of Madhavdas. At the time when Jugmohandas: died, the three brothers were joint, and the family continued to be joint till the date of the suit. None of the three brothers had any son. Madhavdas. had an only daughter Bhikoobai; Jugmohandas and Haridas had no children.. Madhavdas died at the age of about seventy on May 24, 1931. THE plaintiffs allege that plaintiff No. 2 Parwatibai adopted Narayandas as a son to her deceased husband Jugmohandas on November 17, 1932. On that day the: formal giving and taking was done, and the actual adoption ceremonies took place on the following day, November 18. Narayandas is the son of Par-watibai's brother Tikamdas. On the same day, November 18, Haridas, who at the time was the only surviving coparcener in the joint family, passed two gift-deeds, exhibits 393 and 411, by which he gifted away the whole of the joint family property to Govinddas and Goverdhandas, the grandsons of his elder brother Madhavdas, and a few weeks later, on December 23, 1932, he took defendant No. 3 Goverdhandas in adoption as his own son. THE plaintiffs filed the suit for a declaration that plaintiff No. 1 Narayandas had been duly adopted by plaintiff No. 2 as a son to her deceased husband Jugmohandas and that he was therefore a coparcener with defendant No. 1 Haridas in the joint family, and as such owner of the joint family property. THEy further prayed for a declaration that the two gift deeds passed by defendant No. 1 in favour of defendants Nos. 2 and 3 on November 18, 1932, were unenforceable, bogus and not binding on them, and that they could not affect the legal rights of plaintiff No. 1 and could not convey any title to defendants Nos. 2 and 3. Plaintiff No. 1 asked for joint possession with defendant No. 1 of the dwelling house of the family, house No. 451 situate in Raviwar Peth, Poona. THEy prayed for an injunction that the defendants should be enjoined not to obstruct them in the joint possession and management of the rest of the family properties mentioned in the plaint. THEy further prayed that if the Court thought it in the interests of the minor plaintiff No. 1 to partition the property, the estate should be divided equitably into two equal shares and plaintiff ' No. 1 should be given separate possession of his half share in the moveable and immoveable properties of the family and mesne profits.

(2.) THE defendants denied the plaintiffs' claim. THEy alleged that plaintiff No. 2 Parwatibai had been expressly prohibited by her husband Jugmohandas from making an adoption, that she was aware of the prohibition and was not, therefore, entitled to make an adoption, and further that Madhavdas and Haridas had already disposed of the family property by a document purporting to be a will, exhibit 348, executed by Madhavdas on April 21, 1931, which had been consented to by Haridas ; that there had been no giving and taking of Narayandas on the 17th as alleged in the plaint, and that the adoption on the 18th was later than the execution of the gift-deeds by defendant No. 1 in favour of defendants Nos. 2 and 3. It was, therefore, contended that the adoption of plaintiff No. 1, even if valid, could not affect the property which had already been disposed of by Haridas, the sole surviving coparcener, prior to the adoption. According to the defendants no giving and taking had taken place on November 17, 1932, and even if it had taken place, their case was that as the parties were Vaishyas, a mere giving and taking was not sufficient to constitute a valid adoption. THE performance of religious ceremonies, especially the datta homam, was necessary, and as this ceremony did not take place till the following day, the 18th, there could be no valid adoption on the 17th. With regard to the will of Madhavdas by which, it is alleged, the property had been left to defendants Nos. 2 and 3 in equal portions after the death of Haridas, the defendants' case was that the will operated as a family settlement and was as such binding on the members of the family including Parwatibai. On this ground also, even apart from the gift-deeds executed on November 18, 1932, the property had already passed out of the joint family before the alleged adoption on the 18th, and the adoption could not, therefore, affect the property.

(3.) THIS evidence leaves no room for doubt that the parties are, and regard themselves as, Vaishyas and not Shudras, and that they observe most, if not all, of the customs and ceremonies peculiar to the three twice-born of regenerate castes. I am unable, therefore, to agree with the view taken by the learned Judge that they are not quite Vaishyas and, as he puts it, " almost Shudras." There is no authority for the view which the learned Judge has taken that because the ceremony of upanayanan is, according to some witnesses, not performed in this community, therefore they must be regarded as Vratyas and not Vaishyas.