APPA TRIMBAK DESHPANDE Vs. WAMAN GOVIND DESHPANDE

JUDGEMENT

(1.) This appeal has been brought in forma pauperis by the plaintiff and defendant 4, who are brothers. No one has appeared at the hearing to represent the respondents but Mr. Parikh has presented the case for the appellants with great care and fairness. In the result their Lordships are of opinion that the case should be remanded upon two points and they will say only what seems necessary to explain the scope and purpose of the remand. In 1865 the appellants' grandfather Rangrao was given by his father Madhavrao to the widow of one Vishnu in adoption to her deceased husband. Madhavrao had two other sons, Anandrao and Govind, and by a deed dated 18 May 1868 to which the father and all three sons were parties the terms upon which the adoption had been made were expressed. A main term was to the effect that upon Madhavrao's death the total income from his ancestral immovables should be divided - not into thirds or shares of 5 as. 4 ps. - but in proportions as follows: to Rangrao notwithstanding his adoption 4 as. 8 ps. and to each of his brothers 5 as. 8 ps. : and that as regards certain property expected to come to Rangrao from his new family, the income from the immovables should be divided so that Rangrao should get a 6 as. 8 ps. share, and the share of each of his brothers should be 4 as. 8 ps. Rangrao was during his father's lifetime to live with him. By cl. 8 of the deed his share of the income from his father's property was to continue to his descendants save that it should not go to any adopted son unless he had been taken from among the issue of Anandrao or Govind. This clause is here mentioned because it has some bearing upon the question whether upon a true view of the effect of the deed Rangrao's interest in his father's property was an interest in income only or whether it extended to the capital or corpus of the property - a question which may become important.

(2.) Rangrao did not succeed in obtaining possession of any of the properties of Vishnu and he was equally unsuccessful when in 1890 Vishnu's brother Keshavrao died, in obtaining recognition as his heir. Rangrao died in 1894 without having brought the validity of his adoption to the test of a civil suit. His father Madhavrao and his brother Govind died in the same year, leaving Anandrao as the senior member of that branch of the family. In 1894 also, Anandrao as next friend brought a suit (No. 97 of 1894) in the Court at Wai, on behalf of Trimbak (only son of Rangrao and father of the present appellants) laying claim to the properties of Vishnu and his brothers Keshavrao and Ganpat on the footing that they had all been joint and that the two latter had died without leaving issue. This suit was dismissed by the trial Court (19 June 1897) and on first appeal (3rd August 1898) and by the High Court on second appeal (1 March 1899). The ground upon which these decisions proceeded was that as Vishnu was joint with his brother Keshavrao, his widow could not validly adopt a son to him unless she had either his permission or the consent of Keshavrao. This was at the time and had been since 1879 at least the rule of Hindu law accepted as prevailing in the Mahratta country of the Bombay Presidency and thus applicable to the parties. Upon the questions of facts, whether Vishnu had given permission and whether Keshavrao had consented there is no reason to doubt the correctness of the concurrent decisions in the negative.

(3.) Trimbak died in 1910 leaving two sons, appellant 2 born in 1908 and appellant 1 (plaintiff) born in 1910. Anandrao continued in the management of the family property till his death in 1928, when defendant 1 Waman took over the management. From the findings of both the Courts in India in the present case it appears that the appellants had in Anandrao's time been receiving from him a share of the income, corresponding in fact to 4 as. 8 ps. and not to a one-third (5 as. 4 ps.) share. The learned Subordinate Judge was of opinion that what they got was paid to them in virtue of their right to a one-third share that, is in recognition, that Rangrao's adoption having proved invalid he had reverted to his original rights as a member of his natural family and not upon the view that he was relegated to the rights given to him by the deed of 1868.