SHIVAPPA GURAPPA SHETTAR Vs. VIRBHADRAPPA SHIVARUDRAPPA KALASPUR

JUDGEMENT

(1.) The facts of this case are undisputed. The property in suit belonged to one Totappa Karabasappa who died in 1897 leaving behind him two widows Rachawwa and Rudrawwa but no issue. Before his death he made a will to the effect that after his death his two widows should enjoy his moveable property and the income from his immoveable property, that they should not alienate the immoveable property by sale or mortgage, that if they did not agree, they should divide the property equally between themselves, that on the death of one of them the survivor should enjoy the whole property and that on the death of both of them his next heir Gurappa or his heirs should take possession of and enjoy his immoveable property. Gurappa was Totappa's grand-father's brother's grandson.

(2.) Rachawwa died in 1922 and then the surviving widow Rudrawwa took defendant No. 1 in adoption on March 21, 1927. Gurappa died thereafter in 1934 during Rudrawwa's lifetime, and the plaintiff is his son and heir. Rudrawwa having died on April 1, 1936, the plaintiff brought this suit to recover possession of Totappa's immoveable property from defendant No. 1 and his tenants, alleging that it had vested in his father Gurappa under Totappa's will, and that as the will contained an implied prohibition of adoption of a son by either of his widows, the adoption of defendant No. 1 by Rudrawwa was invalid.

(3.) On both these grounds the trial Court found in favour of the plaintiff and decreed his claim, but in appeal the learned District Judge held that Totappa's will contained no bequest in favour of Gurappa, that the property did not vest in him on Totappa's death, and that there was no prohibition of adoption either express or implied, The plaintiff's suit was, therefore, dismissed. He has now come in second appeal, and its decision must depend mainly on the construction of Totappa's will.