BAYAVA SHIDDAPPA DESAI Vs. PARVATEVA BASAVANEPPA BELLAD

JUDGEMENT

(1.) In this case the plaintiff sued to recover possession of the property in suit on the ground that it belonged to the plaintiff's father Bhojappa bin Shivbasappa, who died in May 1905 leaving a widow Tengava who remarried in 1912 and died in 1916, and that the plaintiff was born two months after Bhojappa's death in July 1905 and was the preferable heir as the unmarried daughter of Bhojappa.

(2.) The learned Subordinate Judge held that Tengava, the plaintiff's mother, was the udki wife of Bhojappa, and in that ease the plaintiff would be the sole heir of Bhojappa, but held that the decree in suit No. 229 of 1906 obtained by defendant No. 1, the daughter of Bhojappa by another wife who had predeceased Bhojappa, operated as res judicata, as in that suit Tengava's udki marriage was held not proved.

(3.) Bhojappa was adopted by Shivbasappa of Hirehattiholi and had two natural brothers Irappa and Baslingappa who lived at Gajapati. The plaintiff's case is that her mother Tengava was married to Bhojappa in the udki form two or three years before his death at the village of Gajapati. After the marriage Bhojappa died in May 1905 leaving his adoptive mother Balava, his wife by udki marriage Tengava alias Savantreva who was pregnant, and a daughter Parvateva, defendant No. 1, born of his first wife and married to Baswanappa a year before Bhojappa Shivbasappa's death. The plaintiff was born on July 25, 1905. Exhibit 63 is a copy of the birth register in which the father's name is given as Bhojappa Shivbasappa. After Bhojappa's death an heirship inquiry was held and various persons were examined including Tengava, Exhibit 66, the adoptive mother Balava, Exhibit 93, Irappa, the natural brother of Bhojappa, Exhibit 94, and another brother Baslingappa, Exhibit 95. The Assistant Collector ordered in September 1905 that Tengava's name should be entered as heir. In June 1906, the Collector reversed the order in favour of one Basvantappa, the son of Baslingappa, the natural brother of Bhojappa, who was alleged to have been adopted by Bhojappa shortly before his death. In 1906, suit No. 229 was brought by defendant No. 1, then a minor by her husband as the next friend, against Basvantappa, the adopted son, and Tengava, the mother of the plaintiff". In that suit Tengava was examined in May a July, 1907, see Exhibit 67. On July 4, Tengava made an application, Exhibit 103, and another application, Exhibit 72, for adjournment for engaging a pleader. It appears that Tengava did not examine any witnesses who were personally present at her remarriage, and in August 1907 the decision, Exhibit 71, was given in suit No. 229 of 1906, holding that Basvantappa was not the adopted son of Bhojappa and Tengava was not the udki wife of Bhojappa. The present suit was brought by the plaintiff within three years after her attaining majority.