TIRKANGAUDA MALLANGAUDA KASHIGAUDAR Vs. SHIVAPPA PATIL

JUDGEMENT

(1.) This appeal arises out of a dispute regarding the property of Shidlingappa alias Shidalingangouda Kenchanagauda, the watandar patil of Chelgeri in Dharwar District. In 1921 he adopted the defendant, who is the son of his sister Maralshiddavva, and died on March 17, 1926. But for the adoption his heirs would be his nearest agnates Naganagauda, Ujjanagauda and Chanabasappa. Out of these three, only Naganagauda and Ujjanagauda filed this suit for possession of Shidalingappa's property together with Rs. 900 as past mesne profits, future mesne profits and costs, alleging that the defendant's mother Maralshiddavva had been deserted by her husband Basappa, that she led an unchaste life, that the defendant was born to her of an adulterous inter course, that his father was unknown, that as he and his mother had been excommunicated from the Lingayat community, he could not be legally adopted, and that his adoption by Shidlingappa was illegal and invalid.

(2.) The defendant replied that his mother had not been deserted by her husband Basappa and was not unchaste, that he was the legitimate son of Basapipa by Maralshiddavva, that he and his mother were never excommunicated, that Maralshiddavva had a right to give him in adoption, that the plaintiffs themselves were present at his adoption and took part in it, that his adoption was legal and valid, that the suit was time-barred under Art. 118 of the first schedule to the Indian Limitation Act, 1908, that it was time-barred also under Art. 142 or 144, since Shidlingappa had relinquished all his right, title and interest in the property in his favour on April 24, 1922, and since then he was in possession of it as its exclusive owner, that the plaintiffs were estopped from challenging the factum and validity of his adoption and that the plaintiffs were not the heirs of Shidlingappa.

(3.) Plaintiff No. 1 Naganagauda died after filing this suit, and his heirs, plaintiffs Nos. 1A to ID, were brought on record as his legal representatives. The trial Court held that in the absence of the defendant's adoption the plaintiffs would be Shidlingangauda's heirs to the extent of two-thirds of his property, the third heir being Chanabasappa. It held that the defendant was born to Maralshiddavva by adulterous intercourse, but that as they were not excommunicated, she was competent to give him in adoption. The plaintiffs claim was held to be in time in respect of certain lands and time-barred in respect of others. But as the defendant's adoption was held proved and valid, the plaintiffs suit was dismissed with costs.