SHRINIVAS SARJERAO SHOLAPURKAR Vs. BALVANT VENKATESH SHOLAPURKAR

JUDGEMENT

(1.) The property in dispute originally belonged to one Balwant Venkatesh, who died childless on the 12th of November 1881, leaving as his heiress his widow, Gopikabai. She having died on the 12th of April 1901, the suit resulting in the present appeal was brought on the 14th of January 1908 by the appellant in the Court of the Subordinate Judge, First Class, Belgaum, claiming the properties as reversionary heir of Balwant Venkatesh. The first respondent, who was the first defendant, is the son of one Venkatesh who as the adopted son of Balwant Venkatesh sold the properties to the other respondents. The real contesting parties, both in the Court below and here, are the appellant and respondents 2 to 4. These latter, both at the trial and here, defended their right to and possession of the properties under a title derived from the father of the first respondent. They also pleaded limitation.

(2.) The first question on appeal is, whether the adoption of the first respondent s father, relied on by the other respondents in support of their title to the properties, is proved in fact and is valid in law. The Subordinate Judge has found in the negative on that question, holding on the evidence that at the time the adoption is alleged to have taken place the first respondent s father was an orphan. If he was an orphan, there was no adoption valid in law : Balvantrav Bhashar v. Bayabai and Chintaman Maddan (1869) 6 Bom. H.C.O.C.J. 83 and Bashetiappa bin Baslingappa v. Shivlingappa bin Ballapar (1878) 10 Bom. H.C.R. 268.

(3.) The question, therefore, is whether the natural mother of Venkatesh, father of the first respondent, known as Keshav, the name given to him in his natural family, was alive on the 29th of January 1884 when the adoption is alleged to have been made by Gopikabai, widow of Balwant Venkatesh, at Nipani, where she lived. It is common ground that at that date the natural father of Venkatesh was not living ; and the case of the respondents is that it was the natural mother who gave Venkatesh in adoption to Gopikabai.