BASVANT MUSHAPPA HUBLI Vs. MALLAPPA KALLAPPA HUBLI

JUDGEMENT

(1.) THE plaintiff is the adopted son of Kallappa having been adopted after his death by his widow Dyamawa. He claims the suit property as the sole heir of Kallappa. THE defendants originally were the widow Dyamawa, the minor daughter, Baswant, the brother of Kallappa and the natural father of Dyamawa. THE first two died during the suit and it was alleged that the lands in suit were in the possession of Baswant and the cattle with Shankargowda, the fourth defendant. THE defendants disputed the adoption. THEy also alleged that if the adoption had actually taken place it was invalid, because the widow Dyamawa was pregnant and in a polluted state at the time of the adoption. THE trial Judge found that the adoption had taken place and he also held that the unchastity of the widow did not invalidate the adoption. THE defendants relied on the authority of Sayamalal Dutt v. Saudamini Dasi (1870), 5 Beng. L.R. 362 in which an adoption was declared void by reason of the unchastity of the giver, but the ground of that decision was that the widow could not perform the necessary religious ceremonies. THE parties in this case are Shudras and therefore that argument does not apply.

(2.) IN first appeal the only point argued was whether or not the plaintiff proved his adoption. The District Judge agreed with the decision of the trial Court that the adoption had been proved. It was not argued that the adoption having taken place it was invalid on the ground of the widow s unchastity and we are told that as the District Judge threatened the defendants with prosecution for perjury, that legal argument was dropped. However that may be, it has been argued now that the unchastity of the widow invalidated the adoption. Apparently the argument is that if the husband could have known in his life-time that his widow would not behave properly after his death, he would have expressly revoked the authority to adopt. But in this Presidency the widow has implied authority to adopt from the date of her husband s death unless it can be shown that her husband had either expressly or impliedly revoked such -authority. Therefore any conduct of the widow after the husband s death cannot affect the authority which she acquired at the time of his death. The facts in the case of Dnyanoba v. Radhabai (1894) P.J. 22 to which we have been referred, were entirely different. The widow had been deserted by her husband for thirty years on the ground that she had misconducted herself and her husband had taken to himself another wife. It was, therefore, quite open for the Court in that case to come to the conclusion that the husband had revoked expressly any authority his wife would otherwise have to adopt after his death. IN my opinion, therefore, the decision of the Court below was right and the appeal must be dismissed with costs.