HANMANT SUBBAYA NAIK Vs. KRISHNA MANJUNATH YAJI

JUDGEMENT

(1.) The plaintiff sued to recover possession of the suit property with past mesne profits. He had been adopted by one Venkamma on May 26 1915. On April 25, ] 903, Venkamma had given the suit property on Mulgeni to one Manjunath. On April 30, 1903, she adopted one Ram-krishna born on June 14, 1900. On December 17, 1914, Ram-krishna died a minor. The present suit was brought on February 7, 1922. The lower Court dismissed the suit as time-barred

(2.) In first appeal it was contended that Venkamma could only adopt to her deceased husband, that the second adopted son was in no way the representative of the first adopted son and therefore the cause of action accrued on the date of his adoption. On the other hand the defendant argued that the second adopted son was the representative of the first adopted son and therefore the suit was time-barred. The District Judge held that by his adoption, plaintiff obtained the right to question his adoptive mother's alienations and that it was in virtue of his adoption an inherent right, and no valid ground had been shown for holding that the right had been barred. Accordingly the order of the lower Court was reversed and the suit was sent back to be tried on the merits. The defendant has appealed.

(3.) There is no direct authority for the point arising in this appeal. We have been referred to the case of Gobindo Nath Roy Vs. Ram Kanay Chowdhry (1875) 24 W.R. 183. A. Hindu widow succeeded to the estate of her adopted son on his death as his heir. She then alienated the suit property and subsequently adopted another son, It was held that a subsequent adoption could not divest the alienee of his rights under the alienation previously effected. , Jackson J. relied upon the decision of Mussumat Bhoobun Moyee Debia V/s. Ram Kishore Achraj Chowdhry (1865) 10 M.I.A. 279 in deciding that the subsequent adoption of another son by the widow could not divest the alience of his rights under the alienation made by her before adoption. But that case does not seem to be an authority for that proposition. The head-note runs thus:- In the year 1811, G being childless, executed a deed of ...permission by which he gave power to his wife, C, to adopt a son. He afterwards had a son, B, by his wife, C. In 1819, two years after his son's birth, and while he was living, G executed [another instrument giving the widow, his wife, permission to adopt]. ,...B, on corning of age, succeeded to the ancestral and other estate of his father who had died. On B's death, childless, his widow succeeded as heir to her deceased husband, taking a vested estate in the whole of his estate. Some time after B a death, C, his mother, exercised the power given her by the instrument of 1819, by adopting a son to G." It was held that " B, the son was the last full owner, and his wife succeeded at his death, as his heir to her widow's estate, and, consequently, that the adoption by 0, under the.[instrument] was void, as the power was incapable of execution.