BASAPPA DANDAPPA PATIL Vs. GURLINGAWA SHIVASHANKREPPA PATIL

JUDGEMENT

(1.) These appeals raise a novel and important and at the same, time a difficult question of Hindu law which has not been covered by authority.

(2.) Shivlingappa, the father-in-law of the plaintiff, Basappa, defendant No. 1, and Shiddappa, father of defendant No. 2, were brothers and had separated long ago. The property in suit consists of the property which came to the share of Shivlingappa and which was acquired by him with the income of the property that came to him by partition. Shivlingappa died in 1921 and was succeeded by his son Shivshankreppa who died in 1922, The property was inherited by the plaintiff, the widow of Shivshankreppa and the daughter-in-law of Shivlingappa. In 1923 the plaintiff adopted Shidlingappa, the son of defendant No. 1, in dwyamushyayana form. Shidlingappa, after his adoption, died unmarried soon afterwards. The plaintiff, therefore, has brought the suit as heir of her deceased adopted son. Defendant No. 5 is the natural mother of Shidlingappa and the wife of defendant No. 1. The question involved in this appeal is whether the plaintiff, the adoptive mother, or defendant No. 5, the natural mother, is the preferential heir, or whether they are co-heiresses and jointly inherit the property of the deceased Shidlingappa.

(3.) It is contended by Mr. Thakor on behalf of the natural mother that she is the preferential heir on the theory of propinquity based on the sapinda relationship on account of possession of particles of the same body, and reliance is placed on the decisions in the cases of Lulloobhoy Bappoobhoy V/s. Cassibai (1880) L.R. 7 I.A. 212, Buddha Singh V/s. Laltu Singh, s.c. I.L.R. 37 All. 604. and Behari Lal V/s. Shib Lal (1904) I.L.R. 26 A11. 472. It is further urged that according to the theory of offering oblations, in the case of a dwyamushyayana adoption the descendant in the fourth degree need not offer oblations and priority is given to sires of natural mother, and this circumstance provides an adequate ground of preference for excluding the adoptive mother.