NARAYAN JIVANGOUDA PATIL Vs. PUTTABAI

JUDGEMENT

(1.) These are consolidated appeals from a judgment and two decrees of the High Court of Judicature at Bombay dated 14 January 1938, affirming a decree of the First Class Subordinate Judge of Dharwar dated 31 October 1936, and an order of that Judge dated 21 November 1936, The questions which arise in the appeals are; (1) Whether the plaintiffs' suit is barred by limitation. (2) Whether Narayan (plaintiff 1, hereinafter referred to as the appellant) was entitled to restitution or other relief consequent upon a decision of the Privy Council in 60 IA 25,1hereinafter mentioned. The parties to the suit are Hindus governed by the Bombay School of the Mitakshara law. The table given below shows their relationship.

(2.) One Dyamangouda I and his three sons Nilkantgouda, Khadappagouda and Jivangouda formed a joint and undivided Hindu family. Dyamangouda died sometime before 1895 leaving him surviving, his three sons who took the family properties including the properties now in suit by survivorship. In 1895, Khadappagouda separated from his two brothers who continued joint, and the properties now in suit are those which were allotted to the two brothers jointly. The bulk of the properties consisted of watan lands. Khadappagouda died in 1912, leaving a widow but without a male issue. On 6 July 1915, she adopted Gurunath the defendant in the present suit who died on 20 February 1933, subsequent to the High Court judgment. His legal representatives have been since brought on the record and they are now respondents 1 to 3. oh 15 January 1913, Jivangouda died leaving his widow Bhimabai (plaintiff 2, now respondent 4) but without male issue. On 17 November 1919, she adopted the appellant who attained his majority on 5 March 1920. In December 1915, Nilkantgouda died leaving him surviving Dyamangouda II whom he had adopted as his son on 20 May 1915. Dyamangouda died in August 1919, leaving a son Dattatraya who was born in August 1918, and a widow Tungawa. On 6 February 1920, Dattatraya died unmarried and the appellant became entitled by survivorship to all the joint family properties subject to the rights of Tungawa and Bhimabai for maintenance. Tungava took possession of the properties to the exclusion of the appellant.

(3.) Disputes, however, arose between Tungawa and Gurunath, the latter claiming that he was entitled to watan properties in preference to Tungawa. These disputes were referred to two arbitrators who made an award on 23 February 1920, in terms of which a consent decree was afterwards passed by the First Class Subordinate Judge of Dharwar on 24 February 1920. On the same date, purporting to act under its terms Tungawa handed over the properties now in suit to Gurunath who has since been in sole and exclusive possession of them. Subsequently, Gurunath applied for mutation in his favour in the Revenue Records; a similar application had been made by the appellant also, who had by this time come of age on 5 March 1920. The Mamlatdar of Gadag ordered mutation in favour of Gurunath, but this order was set aside by the District Deputy Collector. Thereupon, on 25 November 1920, Gurunath filed a suit (Suit No. 588 of 1920) in the Court of the First Class Subordinate Judge of Dharwar against Bhimabai, the appellant, and some others challenging the adoption of the appellant, and praying for cancellation of the order of the District Deputy Collector, a declaration that he was in possession, and a permanent injunction restraining the defendants therein from dispossessing him and receiving rents from the tenants. On the same date, Gurunath filed an application for and obtained a temporary injunction to the same effect as the permanent injunction applied for by him. On 1 April 1921, Bhimabai and the appellant filed a written statement in which Gurunath's claim was denied and the title of the appellant was asserted. The order for temporary injunction was confirmed by the Subordinate Judge on 6 February 1922, and by the High Court in appeal, on 22 January, 1924. The main contest in the case was as regards the validity of the appellant's adoption. The Courts in India held that his adoption was invalid, but on appeal to His Majesty in Council, the Board set aside their decision holding that the appellant was validly adopted by Bhimabai as a son to her husband Jivangouda : see the decision in 60 IA 25.1The Order in Council giving effect to the judgment was made on 10 November 1932. The appellant's title to the lands in question was thus definitely established.