GOVIND DHONDO Vs. GODUBAI DHONDO

JUDGEMENT

(1.) We feel unable to proceed with this matter, as there are certain matters of fact which are not before us, and so we propose to send the case back to the Joint First Class Subordinate Judge of Belgaum for him to take further evidence on the following issues: (1) Whether it is necessary for the due performance of the datta homa ceremony that the widow could take part in it? (2) This Court having decided as a matter of law, that if it is necessary for the widow to take part in the datta homa ceremony, she can, though unchaste, delegate her duties: whether that delegation can be made to the officiating priest or must be made to somebody else? (3) Whether on the facts of the present ease delegation took place to the officiating priest, or whether the widow herself took part in the religious ceremony? (4) Whether the datta homa ceremony is necessary when the giver and taker belong to Bharadwaj and Shrwatsa gotras respectively?

(2.) All parties to the appeal are to be at liberty to adduce any further evidence on these issues which they may see fit. Neither, party dissenting, we direct that the findings be returned within three months alter the record is received by the lower Court. The appeal will be adjourned sine die. On receipt of the findings on the above .issues the appeal was further heard by Lokur and Gajendragadkar JJ. Lokur, J.

(3.) This appeal arises out of a out filed by the minor plaintiff through his natural father Mr. Jamakhandi, pleader, as Ms next friend for a declaration that he is the legally adopted son of Dhondo Govind Kulkarni, the deceased husband of defendant 1, and for partition and possession of his half share in the suit property, on the ground that it was the joint family property of the said Dhondo and defendants 2 to 9 and that Dhondo had died in union with them. The plaintiff alleged that Dhondo having died without issue in 1910, his widow defendant 1 had taken him in adoption with all the necessary ceremonies on 28 October 1936. Defendant 1, Godubai alias Annapurnabai, supported the plaintiff's claim, but defendants 2 to 9 denied both the fact of his adoption by her and its validity. They alleged that as defendant 1 was leading a life of un-chastity after her husband's death, she was not competent to make any adoption and that the plaintiff's adoption was, therefore invalid. They admitted that Dhondo had died in union with them, but claimed that some of the properties in suit were their self-acquisition. The trial Court held that they had failed to prove that any of the properties in suit was their self-acquisition and that the plaintiff had proved the factum of his adoption by defendant 1. But it dismissed the suit on the ground that the adoption was invalid by reason of defendant 1's un-chastity after her husband's death. The plaintiff having appealed against the decree, this Court thought it necessary to have findings on certain issues regarding the performance of datta homa and its necessity for a valid adoption. Those findings have now been recorded by the lower Court and both parties have put in objections to them. But before dealing with them, it is necessary to consider whether the alleged un-chastity of defendant 1 has been established.