MALGAUDA PARAGOWDA PATIL Vs. BABAJI DATTU BHAKARE

JUDGEMENT

(1.) But issue No. 1 as to whether the plaintiffs can sue is yet to be tried. The Courts below have refrained from finding on it. Batchelor, J.

(2.) The suit giving rise to tins appeal was instituted by the present appellants for a declaration that the adoption of the 1st defendant Babaji by the 2nd defendant, the widow of one Kalagauda, was null and void. The appellants claimed as nephews to be the reversionary heirs of Kalagauda Kalagauda died on the 13th March 1885, having made a will dated the 9th of March of that year

(3.) The only question between the parties is whether the lower Courts are right in holding that under the terms of that will there was no implied prohibition barring the widow from adopting the first defendant, who is the son of one of the testator s daughters. Both the Courts below appear to admit that there is to be collected from the will an implied prohibition of one sort or another, but they are of opinion that in the special circumstances disclosed in this case the effect of the adoption is to carry out either the provisions of the will which Kalagauda did make or the provisions of the will which he would have made had all the present facts been before him and upon that footing they have allowed the adoption to stand. The will in question is Ex. 59, and in it the testator recites that he has no male issue, but that ha has a wife and two daughters living By the first clause he provides that the ownership of the lands, most of which were vatan "should, after me, go to the said daughters Tani and Bhima the manner written below and remain with them in perpetuity. In the second clause he gives his wife power to household and to make proper arrangements in litigation that may ensue, but he says: "My wife has authority to make over the property of our house hold to any body except to my daughters." The seventh clause is, follows: "My daughters have authority to make over the property right of ownership to or to relinquish the same in favour each other. Or else should any occasion arise one may go to the other only, but not to any body else have I taken any body in adoption."