BAI FAIBA Vs. CHUDASMA JORUBHA GAJUBHA

JUDGEMENT

(1.) This appeal from the judgment and decree of the Court of the First Class Subordinate Judge, Ahmedabad, in civil suit No. 893 of 1937 raises, on the findings made by the lower Court and submissions made to us, an important question of law. The dispute related to an undivided one-anna share in the Talukdari estate of the village of Kharad in Dhandhuka taluka of the Ahmedabad District. The relationship of the parties to the suit is shown by the genealogy in the judgment of the lower Court. The ancestor of the parties was one Akhabhai who died leaving two sons, Abhesang and Dehabhai. Although the matter was in dispute before the trial Court, it is now conceded, as found by the learned trial Judge, that Abhesang and Dehabhai were divided and that the property in suit came to the share of Dehabhai. Dehabhai had a son, Dajibhai. Dajibhai died leaving two sons, Ramabhai and Balubhai. In the trial Court a question arose whether Ramabhai and Balubhai were joint or divided. It has been found by the learned trial Judge that they were joint, and this finding is not disputed before us. Balubhai died in 1902 leaving his widow Bai Faiba, defendant No. 1. Ramabhai had a son, Vakhatsing, who died in 1913 leaving a son Anupsing who died in 191 & during his minority. Thus so far as Dehabhai's branch is concerned, Anupsing was the sole surviving coparcener. On Anupsing's death the property vested in defendant No. 1 as the widow of a gotraja sapinda succeeding to the estate of Anupsing, the sole surviving coparcener. In 1931 Bai Faiba, defendant No. 1, adopted defendant No. 2. Thereupon the plaintiffs who are the representatives of the branch of Abhesang filed the present suit for a declaration that defendant No. 1 had no right to adopt and that the adoption of defendant No. 2 by her was not valid and lawful. They also asked for a declaration that defendant No. 2 did not acquire any rights over the properties as a result of his adoption. In support of this contention, the plaintiffs relied not only upon the law on the subject but also based their case on an agreement, exhibit 69, dated December 9, 1920, passed by defendant No. 1 to. plaintiffs Nos. 3 and 4. The plaintiffs alleged that by exhibit 69 she surrendered her right of adoption.

(2.) The defendants resisted the suit on the ground that the deed dated December 9, 1920, was obtained by the plaintiffs by means of fraud and misrepresentation, was opposed to public policy, and was void for absence of consideration. It was contended that there was a partition between Ramabhai and Balubhai, that Ramabhai's property had come by way of inheritance to Anupsing and that on Anupsing's death defendant No. 1 had succeeded to the estate. It was asserted that she had every right to adopt in spite of the document exhibit 69 and that the adoption had in fact taken place. The adoption, it was contended, was legal and valid, conferred title to the property on defendant No. 2, and that, therefore, the plaintiff's suit should be dismissed with costs.

(3.) The learned Judge disbelieved the defence contention that the document was obtained by fraud and misrepresentation but held that it was not binding on the defendant as it was opposed to public policy and was void for absence of consideration. He also rejected the defence contention that Ramabhai and Balubhai were divided and held that they formed a joint Hindu family. On this view he held that Anupsing was the full owner of the property as the sole surviving coparcener and that on his death defendant No. 1 was entitled to the properties, although she obtained only a widow's estate over them. He found that the adoption of defendant No. 2 by Defendant No. 1 was proved and valid. But relying on the decision of the full bench of this Court in Balu Sakharam V/s. Lahoo (1936) 39 Bom. L.R. 382, F.B. he held that by reason of the adoption defendant No. 2 did not obtain any interest in the property. He accordingly declared (1) that defendant No. 1 had a right to take defendant No. 2 in adoption, (2) that the adoption of defendant No. 2 by defendant No. 1 was proper and legal, and (3) that defendant No. 2 did not acquire any rights over the suit properties as a result of his adoption. He directed that the parties should bear their own costs in the circumstances of the case. It is against this order that the defendants have come in appeal.