RUDRAPPA YELLAPPA SATTENNANAVAR Vs. MALLAPPA MALLESHAPPA

JUDGEMENT

(1.) THIS is a second appeal from the decree of the District Judge of Dharwar dismissing the plaintiff-appellant's suit for a half share of property in the possession of the defendant-respondent.

(2.) THE material facts are these. Yellappa and Mallappa were joint brothers. Yellappa died first leaving a widow Bandewa. Mallappa died leaving a widow Basava and a son Virappa. Virappa the last surviving coparcener died unmarried. Basava adopted the defendant and a few months afterwards Bandewa adopted the plaintiff who claimed a half share in the family property in the possession of the defendant-respondent.

(3.) MR. Murdeshwar has attempted by a very ingenious argument to show that in the present case the coparcenary has not terminated at all and that it is the third of the propositions laid down in the full bench case and not the fourth which really applies to the facts. His argument is this. If the coparcenary terminated on Virappa's death, his mother Basava became the owner of the property, having a widow's limited estate, and logically her adoption of a son to her husband should not have divested the estate which she derived not from her husband but from her son. But it is settled law [rajah Vellanki Venkata Krishna Row v. Venkate Rama Lakshmi Narsayya (1876) L. R. 4 I. A. 1 and Jamnabai v. Raychand Nahalchand (1883) I. L. R. 7 Bom. 225] that when a woman who has succeeded as heir to her son makes an adoption, the estate she has inherited from her son is divested and the adopted son becomes the owner. That is to say, the adopted son succeeds the natural born son. In this case the defendant succeeded Virappa and MR. Murdeshwar argues, applying the language used by the Privy Council in a somewhat similar connection in Madana Mohana v. Purushothama (1918) L. R. 45 I. A. 156 160 : S. C. 20 Bom. L. R. 1041, that the adoption must relate back to the death of Virappa and Basava's entering on the property should be regarded as a temporary interruption, operating merely to prevent the ownership of the estate being in abeyance. It is contended that on this view there has been fictionally no hiatus in the coparcenary.