GIRIJABAI SHAMBHUDIXIT ATHAVALE Vs. SADASHIV VISHVANATH JOOLEKAR

JUDGEMENT

(1.) The plaintiff sued to recover possession of the plaint property as the widow of one Shambhudixit who was adopted in 1878 by a family of the name of Athavale. The defendants are the grandsons of Shambhu by their father Viahwanath who was born in 1877 before the adoption. Therefore according to Hindu law Vishwanath, the son of Shambhu after Shambhu s adoption into the Athavale family, remained in his father s old Jogleker family. Shambhu died in 1904.

(2.) The defendants oppose the paintiff s claim mainly on two grounds, one of limitation, the other of estoppel. It was contended that Article 119 applied, and that although the suit was one to recover possession of the property, the plaintiff, before she could succeed, had to obtain a declaration that her husband s adoption was valid. Therefore she was bound to bring the suit within six years after the rights of Sambhu, the adopted son as such, had been interfered with. The learned Judge found that such interference took place when Vishwauath was entered as the owner of the Athavale estate in the Record of Rights in 1904. Assuming that the plaintiff is bound to obtain a declaration that Shambhu a adoption was valid, we do not think that after his death there could be any circumstances which would amount to an interference of the rights of Shambhu as such adopted son. The facts in Gangabai v. Tarabai (1902) I.L.R. 26 Bom. 720 : 4 Bom. L.R. 516 are somewhat similar. It seems the learned Judges were of opinion that in that case until the death of the adopted son it was not suggested that his right as such adopted son had ever been interfered with, and they came to the conclusion that Article 119 did not apply to the facts of that case. Although the point we have had to decide may not have been actually decided in that ease, we certainly think that Article 119 cannot be applied to the facts of this case, so that the plaintiff, the widow, would have twelve years within which to bring her suit, and admittedly in that case the suit is within time.

(3.) The second point on which the defendants succeeded in the lower Court was one of estoppel. It appears that after Shambhu s death Vishwanath and then the defendants were in possession of the property, and in 1913 the plaintiff gave to Vishwanath s widow Umabai a receipt whereby she declared: "According to agreement, whereby I am to receive Rs. 70 for my maintenance, I have this day received in all Rs. 33 for the year 1835 Pramadi. The balance to be paid by you is Rs. 36." No doubt at that time it appears that the plaintiff thought that she was only entitled to maintenance. It is suggested that she thereby induced the defendants to give up any rights that they might have had to the Joglekar property by representing that they were entitled to succeed to the Athavale property on the death of Shambhudixit. There is no evidence whatever, even assuming that the plaintiff had induced them to believe that she had no claim to Shambhu s property, that they acted on such a belief. There is no evidence that there was any Jogleker property, or, if there were, that they made any claim to it, and gave up any rights they had in it, because they thought that owing to representation made by the plaintiff they were entitled to Shambhu s property. In the absence of that evidence we do not see how in any event there could be an estoppel. But apart from that there was in this case at the beat a mistake on the part of the plaintiff, and also of the defendants, with regard to the rights which the Hindu law gave her over her husband s property in the circumstances of the case.