HARI SADASHIV KHARE Vs. SITABAI RAMCHANDRA SADASHIV KHARE

JUDGEMENT

(1.) This is an appeal from a decree dated 29 February 1932, of the High Court of Judicature at Bombay, affirming with the exception of certain costs of defendant 2, who is not a party to this appeal, the decree dated 23 October 1929, of the Court of the First Class Subordinate Judge of Ratnagiri. The suit in which the said decrees were passed was brought by the respondent, Sitabai, against the appellant, Hari Sadashiv Khare (defendant 1), for partition of immoveable properties consisting of agricultural land and two houses of which the plaintiff and defendant 1 were in joint possession and for separate possession of her (plaintiff's) own share therein. Both Courts in India have given judgment in favour of Sitabai, who however has since died. The parties are Hindus of the Brahmin caste subject to the Mitakshara law as interpreted in Bombay. One Sadashivrao Khare, a retired Subordinate Judge, died on 4 May 1915, leaving him surviving his widow Yamunabai and the respondent (Sitabai) the widow of his only son Ramchandra who had predeceased him. Sadashivrao left a will dated 2 February, 1914 and a codicil thereto dated 5 January 1915. The testator by his will after stating that all his properties were acquired by himself proceeded to devise his entire immoveable property consisting of two houses and certain agricultural lands to the two widows in equal shares. He gave the bulk of his moveables, consisting of promissory notes, debts due to him and gold and silver ornaments, to his own widow (Yamunabai) but gave a part thereof of the value of Rs. 14,200 in addition to a large proportion of gold and silver ornaments to his son's widow (Sitabai). In the codicil the testator stated that the promissory notes of the amounts mentioned in his will to be given to the widows had already been transferred to them respectively. He also stated that the ornaments bequeathed to them were in fact ornaments which belonged to them as their stridhan.

(2.) On 6 April 1916, the testator's widow Yamunabai, obtained probate of both the testamentary documents. The two widows lived together in the dwelling-house left to them jointly on very amicable terms until the death of the elder widow on 9 July 1927. On 13th June 1916, Yamunabai adopted or purported to adopt the appellant as the son of her late husband. The appellant was a son of Yamunabai's sister and was at the time a married man of 30 years of age and a practising pleader. The appellant's name in his natural family was Maheshwar Dhondo Sathe and on adoption he was re-named Hari Sadashiv Khare though he continued to use the name of Maheshwar. Three documents were executed on the date abovementioned. The first was a deed of adoption executed by Yamunabai in favour of the appellant. It was afterwords registered. The second was a document executed by the appellant in favour of the adoptive mother to the effect that by his adoption he did not get any right to the moveable and immoveable property given to her as stridhan under the will of her late husband "excepting to the estate that you may of your own accord give me out of the same". The third document was executed by the adoptive mother. It is called "vyawasthapatra" which is a will. By it Yamunabai devised the whole of the immoveable property which she had got under her husband's will to the appellant and bequeathed to him a large portion of the moveable property.

(3.) On 20 July 1916, the younger widow, Sitabai, executed a deed of sale in favour of the elder widow Yumunabai in respect of the immoveable property which she had received under the will of her father-in-law for the consideration, as stated, of Rs. 2,000. It seems to be agreed that the sale deed was executed for a specific purpose though there is no agreement as to the nature of the purpose. In spite of this document, both widows remained in joint possession and enjoyment of the immoveable property which they had respectively received under the will of Sadashivrao. The parties are agreed that the price of Rs. 2,000 was not adequate. Both Courts have found that Yamunabai had no necessity to purchase the property, and that Sitabai had no need to sell it. On 17 August 1921, Yamunabai made another will revoking the will of 13 June 1916. It was in several respects in an unusual form and was apparently made without legal assistance. She began by referring to the will of her late husband and the property she acquired under it and then proceeded to give "the particulars of what I myself have up till now spent out of the said property as well as out of my own estate". These particulars are lengthy and comprised many gifts she had made to a number of institutions and persons amounting to over Rs. 50,000. These were to belong absolutely to the persons to whom they were given. She then recited that she had been obliged to obtain a probate of her husband's will ; and she proceeded as follows : 3. After having obtained the probate as stated above, I, with a view that the name of my husband, the late Mr. Sadashiv Hari Khare, should continue and the annual religious and charitable acts should be properly performed, took on the date 13 June, 1916, in adoption Chi (ranjiv) Maheshwar the son of my sister Chi (ranjiv) Sau. Bhimabai Bhratar (husband) Dhondu Sakharam Sathe residing at Shiral and changed his name Maheshwar and named him as Hari. However, by reason of the adoption the said adopted son has neither got nor acquired any right over the property which is the self-acquired immoveable property of my husband Sadashiv Hari Khare and which he has given me absolutely under the will and the codicil. I have preserved my right of ownership with respect to the same.