GANPATI SHANKRAPPA HEGDE Vs. KRISHNAPPA SHIVRAM HEGDE

JUDGEMENT

(1.) The plaintiff sued for possession of the suit property against the defendants after cancellation of the alienations made with respect to the same by the defendant No. 1's father, Paramaya bin Subhaya Hegde, during her minority. The property belonged to one Shivram Hegde who died leaving a widow, defendant No. 1, and no son. On the 22 August, 1919 the widow adopted the plaintiff. The first question raised in the suit was, whether the adoption had, as a matter of fact, taken place. That had been found against the plaintiff but the lower Court held the adoption had taken place. Then it was alleged that the adoption of the plaintiff was illegal as he was the only son, and so could not be given in adoption by a widow, his father at that time being dead. However, it was decided in Krishna v. Paramshri 25 B. 537 : 3 Bom. L.R. 73 that a Hindu widow pan make a valid gift of, her only son in adoption. Mr. Justice Ranade giving judgment said: "Now that the recent decisions have established the fact that the gift of an only son is not blamable, the implied defect ceases to be operative, and no restriction can be placed on the widow's power to make a valid gift of an only son."

(2.) The next question is, of what property should possession have been decreed to the plaintiff. The Trial Court held on issue 7(b) that certain properties only out of those claimed belonged to the estate of Shivram Hegde. The Appellate Court directed that the plaintiff should recover from defendants Nos. 2, 3 and 4 the lairds in suit without considering whether, -he decision of the Trial Court was erronepus. The respondent, however, does not dispute the finding of the Trial Court on issue 7(6). Therefore, the decretal order must make it clear that it is only the lands found to liave belonged to Shivram Judge by the Trial Court according to its finding, on issue 7(b) which could be recovered from defendants Nos. 2, 3 and 4, and that the plaintiff is entitled to possession of all lands in suit except Section Nos. 46 and 247 and such portions of Section Nos. 243, 244, 245, and 249 as have been held by the Subordinate Judge not to belong to the deceased Shivramgauda.

(3.) The appellants objected to the order that mesne profits should be recovered from the date of the adoption until delivery pf possession. Strictly speaking, as soon as the plaintiff was adopted, all the alienations of the estate made by the widow would become ineffective against him unless it could be shown that they were made for necessity. It seems that in the Trial Court it was suggested that there was legal necessity for these alienations, but the Judge has found that there is no satisfactory evidence to show that the alienations were for justifying legal necessity. We take that as meaning that there wag realty no evidence of all of necessity. If that were not so, then, as the Appellate Judge has not considered the question of necessity, it might have been necessary to remand the case, to that Court for decision of that question of fact. We do not believe ourselves that there was any evidence of necessity, otherwise it would have been considered by the Trial Court, and the fart that the Appellate Court makes no mention of the question of necessity would show that the question was never really contested before the District Judge. But it might have been said that the lease was good until, the adopted son chose to contest it. He might be willing to take advantage of the lease and receive rent under it. It would only be when he decided to contest the lease that the defendants would be liable to pay mesne profits in addition to the rent. Therefore, the inquiry as to mesne profits must commence from the date of the suit and not from the date of the adoption.