KAVERIBAI Vs. REWABAI

JUDGEMENT

(1.) THIS is a second appeal by the contesting defendant Kaveribai from the decision of the first appellate Court that she is not entitled to any share in the properties of one Rajaram because, though a sister by blood relationship, she had been born as found by the appellate Court after their father had been adopted into another family. Consequently, the entirety of the properties of Rajaram, who was admittedly born before his father's adoption were declared by the appellate Court now to be the property of another Sister Rewabai admittedly also the "pre -adoption" daughter of their father. The decision turns on the finding of fact that while the plaintiff Rewabai had been born to their father, Tejasingh before he had been adopted into another family, the defendant -appellant Kaverbai was born to him after that adoptions. The appellant has made a feeble attempt to question this finding of fact but her case here is the thesis that the "sister" mentioned as Class (XIV) of section 82 of the Madhya Bharat Land Revenue and Tenancy Act in the table of devolution of rights on the death of a male Pakka tenant should be understood as sister by blood relationship independently of whether or not the adoption of the father had intervened. This question does not seem to have been raised in the lower Courts, the lower Courts have applied the doctrine, that the word "sister" in section 82 should be understood as "sister" in accordance with the customs and the law applicable to the persons concerned" which in the instant case is the Hindu Mitakshara Law as interpreted by the Benaras School.

(2.) THE facts that have given rise to the controversy are somewhat unusual and can be summarised as follows. In the village called Khamki Barud in the District Mandleshwar there used to live two persons called Arjunsingh and Punaji neighbours but not apparently interrelated. Arjunsingh's son was Tejasingh who was adopted by Punaji's widow in June 1939. The peculiarity of the adoption was that Tejasingh was at that time already married and had at least one son Rajaram and one daughter Rewabai. Whether he had also another daughter Kaveribai at the time of the adoption was in controversy in the lower Courts. These people call themselves Rajputs but it is nobody's case that the adoption was invalid because of the adoptee being married and being himself a father; possibly, the law applicable to the twice -born among whom the Rajputs properly so called are included, does not apply to these people. Anyway, the question before us is not about the validity of the adoption by Punaji's widow of Tejasingh, born as the son of Arjunsingh, as the son to her husband. The factum and the validity of the adoption are common ground.

(3.) FROM this Rewabai went up in appeal. The appellate Court while following the same principles as the trial Court had done, found on the facts that Kaveribai was born after Tejasingh's adoption. Accordingly it declares that only Rewabai was entitled to the properties and made the declaration accordingly. From this decision Kaveribai has come up in second appeal alleging on the facts that the appellate Court's finding that she was born after her father had been adopted into Punaji's family is a perverse one. Further, it is urged that even on the assumption that she was born after the adoption, still she is in blood relationship a sister of Rajaram and as such entitled to share in his property equal to that of the plaintiff.