GOTEPATI SUBBAN Vs. GOTEPATI NARASAMMA

JUDGEMENT

(1.) This is an appeal by the plaintiffs from the decree of the Subordinate Judge of Masulipatam declaring that an alienation of the properties in suit in favor of the 2nd defendant by the 1st defendant, the widow of the last male owner is not binding on them and defendants 3 and 4 who are expectant reversioners. Bapanna the last male owner died in the year 1881. In 1882 his widow the 1st defendant sued to recover possession of the properties from the 2nd defendant who was then a minor. His father as his guardian contended in that suit that his son the 2nd defendant was adopted by the deceased. The Court found that there was no such adoption and decreed possession of the properties to the widow the plaintiff in that suit. In execution of the decree, she obtained possession and in 1897 she executed the registered deed of gift which the plaintiffs now seek to set aside.

(2.) The Subordinate Judge has held that the deed of gift is valid because the first defendant was entitled to a moiety of the properties in suit under a will executed!1 by her husband a few days before his death by which he left a moiety of his properties to the first defendant and the other moiety to the 2nd defendant who is his brother s son.

(3.) The first contention raised in appeal is that the 2nd defendant is barred by the proceedings in that suit from relying on this will. The Sub-Judge is of opinion that there was no bar as 2nd defendant s guardian was guilty of gross negligence in defending that suit. The facts necessary for the decision of that question are these :-In that suit the widow alleged that her husband executed a will on the 8th May 1881, but a few days after the execution of the will he revoked it. The defence set up by the 2nd defendant s father in the Court of first instance was that the 2nd defendant had been adopted by the 1st defendant, that he was not aware of the execution of the will and that even if the will was genuine it was not valid against the 2nd defendant. The Munsif found that the adoption set up by the 2nd defendant s guardian was not proved. He also added that it was unnecessary to take any notice of the will as the evidence showed in his opinion that it was executed at a time when the testator was distressingly ill" and as both parties deny the will. He accordingly decided in favour of the 1st defendant.