PANDURANG SAKHARAM THAKUR Vs. NARMADABAI RAMKRISHNA KELUSKAR

JUDGEMENT

(1.) This is a second appeal from a decision of the District Judge of Ratnagiri, The plaintiff sued for possession of the suit property, and his case was that he had been taken in adoption by one Sakharam, and that the property in suit was part of Sakharam's ancestral property which had descended to the plaintiff, and that the defendants were wrongly in possession of it.

(2.) The facts are that Sakharam had a brother named Soire who died in 1893. Defendant No. 1 is the daughter of Soire, and defendant No. 2 is her husband; defendant No. 3, who died pending the suit, was the widow of Soire. In 1921 Sakharam adopted the plaintiff, and in 1924 Sakharam died. The defence to the plaintiff's claim to possession of the property was that at the time of the adoption Sakharam and the plaintiff agreed that the plaintiff should not claim more than half of the ancestral property. The learned trial Judge found in answer to the issues which he raised, that the plaintiff was taken in adoption on the express understanding and agreement that plaintiff was to get Sakharam's moiety only, and that defendants Nos. 1 and 3 were to get the other moiety, It is not clear from his judgment what the terms of the agreement were. It is not disputed that it was an oral agreement, and there is nothing in writing of any relevance. The learned Judge in the course of his judgment says:- The conclusion I then arrive at-on giving the case my beat and anxious consideration-is that there was an express agreement by which plaintiff on adoption was to get no more than the moiety of the immoveable property, and that Sakharam had given with plaintiff's knowledge and after due deliberation the other moiety to defendants, whom he naturally and tenderly loved. In the result he dismissed the plaintiff's claim for exclusive possession.

(3.) From the whole judgment it is not clear whether the adoption was made on the basis that half the property should thereafter be given to defendants, or whether such half had been given before the adoption. There was an appeal, and in the lower appellate Court it is again difficult to discover exactly what the agreement was which the Court held proved. The learned Judge says:- Considering the probabilities of the case I am of opinion that the lower Court's conclusion is correct and that the adoption took place on the understanding that defendant No. 1 was to have half the property. It is not disputed that under these circumstances plaintiff can obtain only one-half share. There was then an appeal which came on before Mr. Justice Madgavkar, and that learned Judge referred to the fact that since the decision in the lower Courts there had been a case before the Privy Council, Krishnamurthi Ayyar V/s. Krishnamurthi Aygar, s.c. 29 Bom. L.R. 969, which seemed to suggest that the admission as to the law which was made in the lower appellate Court was possibly not sound. The learned Judge was doubtful as to whether Sakharam and Soire had originally been joint or separate. If they were separate, no question would arise; the plaintiff could not get more than the half share of the property which belonged to Sakharam at the date of adoption. It is, I think, also clear that if the agreement on adoption between Sakharam and the plaintiff- was made after the half of the property of Sakharam had been made over to defendants Nob. 1 and 3 no question would arise, as the plaintiff would only be entitled in that event to Sakharam's moiety. But Mr. Justice Madgavkar thought that on the findings before him it was difficult for him to arrive at a conclusion, and therefore he referred the matter back to the trial Court to determine whether Sakharam and Soire were joint or separate in interest at the time of the plaintiff's adoption, The lower Court has found that they were joint.