BHIMABAI JIVANGOUDA PATIL Vs. GURUNATHGOUDA, KHANDAPPAGOUDA PATIL

JUDGEMENT

(1.) This is an appeal from the decree of the High Court of Judicature at Bombay, dated 28 February 1928, which affirmed the decree of the Court of the Joint First Class Subordinate Judge of Dharwar, dated 8 April 1925. The main question involved in the appeal is whether, according to the law prevalent in the Mahratta country of the Bombay Presidency, a Hindu widow, whose husband was undivided at the time of his death, and who has not the express permission of her husband, may adopt a son to him without the consent of the surviving coparceners. The parties are governed by the Mitakshara law, and on questions on which the Mitakshara is silent, by the law as expounded in the Vyavahara Mayukaha of Nilakantha. The following pedigree shows the relationship between the rival claimants : The facts material to the appeal are no longer in controversy between the parties Dayamangouda and his three sons, Nilkanthagouda, Khandapagouda and Jivangouda, constituted a joint Hindu family. Dayamangouda died some years ago leaving him surviving his three sons. In 1895, Khandapagouda separated from the family, but the other two brothers continued to be joint. Khandapagouda died in 1912, leaving a widow who adopted the respondent as a son to him on 6 July 1915. Jivangouda died in 1913 leaving a widow, Bhimabai, who is appellant 1 before this Board, and a daughter Tirkawa, but no male issue. On the death of Jivangouda his undivided interest in the joint family property passed to Nilkanthagouda by survivorship. On 20 May 1915, Nilkanthagouda, who had no male issue, took one Dyamangouda, who was then of the age of about 20 years, in adoption. On the same day Nilkanthagouda executed a writing purporting to be a deed of adoption in favour of Dyamangouda, which will be adverted to later. Nilkanthagouda died in December 1915, and on his death the joint family property passed by survivorship to Dyamangouda. Dyamangouda died in August 1919, leaving a widow Tungabai and a son Dattatraya, and the joint family property passed to Dattatraya by survivorship. Dattatraya was then about a year old, and Tungabai managed the property on his behalf.

(2.) On 17 September 1919, Bhimabai adopted appellant 2 as a son to her deceased husband Jivangouda. The adoption was not made under any express authority from her husband, nor was it made with the consent of Dattatraya who was then the sole surviving coparcener. Dattatraya, in fact, was a minor at that date, and incapable of giving his consent. It is the validity of this adoption that is in question in the appeal.

(3.) Dattratraya died a minor and unmarried on 6 February 1920. Shortly after his death, Tungabai delivered possession of the property to the respondent, purporting to do so under a consent decree in an arbitration proceeding between her and the respondent. Subsequently, on the application of the respondent, the Mamlatdar of Gadag ordered the property to be entered in his name in the record of rights as owner thereof, but the order wag set aside by the Deputy Collector of Dharwar. Thereupon the respondent brought the suit out of which the present appeal arises in the Court of the Subordinate Judge of Dharwar against the first and second appellants, and three others who are not parties to the appeal. Therein he claimed a declaration that he was lawfully in possession of the property, and asked for an injunction restraining the defendants from interfering with his possession. The plaint alleged that the adoption of appellant 2 was not valid, and that the respondent was entitled to the property as the next heir of Dattatraya. The defence, so far as it is material to the appeal, was that, appellant 2 was validly adopted, and that he was entitled to the property by survivorship. The property is vatan land, and it was agreed that Tungabai had no interest in it. The Subordinate Judge held, following a Full Bench ruling of the High Court at Bombay in Ishwar Dadu V/s. Gajabai, AIR 1926 Bom 435, that the adoption of appellant 2 was invalid, and passed a decree for the plaintiff. On appeal, the High Court at Bombay (consisting of Patkar and Baker, JJ.) confirmed the judgment of the Subordinate Judge, and passed a decree on 28 February 1928, dismissing the appeal with costs. It is against this decree that the present appeal has been brought to His Majesty in Council.