DATTATRAYA SAKHARAM DEVLI Vs. GOVIND SAMBHAJI KULKARNI

JUDGEMENT

(1.) The facts, which have given rise to this second appeal, are briefly these: One Mahadev and his brother, Sambhaji, were divided in interest. Mahadev died more than twenty years ago, leaving a widow Parvatibai, a son Ramchandra, and daughters. After Mahadev s death Ramchandra was given in adoption to a different family at Gwalior. The properties in suit, which were originally assigned to the share of Mahadev, and which were vested in Ramchandra alone after Mahadev s death, were mortgaged by Parvatibai in 1909 to one Dattatraya, long after Ramchandra s adoption. Dattatraya filed the present suit in the Court of the Second Class Subordinate Judge at Devgad to enforce his mortgage, to recover possession and to obtain an injunction. It was filed against Sambhaji s sons, who were defendants Nos. 1 and 2, and Parvatibai represented by her heirs and daughters as defendant No. 3. Defendants Nos. 1 and 2 contested the plaintiff s claim, and urged, among other things, that the property being vested in Ramchandra at the time of his adoption remained vested in him even after he was given in adoption, and that Parvatibai had no right to mortgage the property, as Ramchandra was alive.

(2.) The trial Court as well as the lower appellate Court nave allowed this contention with the result that the plaintiff s suit is dismissed with costs.

(3.) Mr. Desai for the appellant (plaintiff) has questioned the correctness of this view, and has urged in support of the appeal that on Ramchandra s adoption, all his rights to the property of his natural father which devolved on him on his father s death, came to an end, that his connection with the family of his birth ceased, and that Parvatibai inherited the property as the next heir of Ramchandra or Mahadev, when Ramchandra was given away in adoption. The question of law that arises is whether or not according to Hindu Law a boy given in adoption loses after adoption all his rights which he may have acquired to the property of his natural father before the date of the adoption. The parties are governed by the Mitakshara; and it is conceded, indeed it seems to me to be indisputable, that if a boy is given in adoption during his father s life time, he would lose all the rights to the property of his natural father, even though he may have, as under the Mitakshara law he would have, a vested interest in that property from the date of his birth. That is, in the present case if Ramchandra had been given in adoption during Mahadev s life time he would have lost all vested interest in the property in dispute, and it would have devolved on Parvatibai on Mahadev s death. The point is, therefore, limited to a case, in which the property has become exclusively vested in the boy before the date of his adoption.