DATTO GOVIND KULKARNI Vs. PANDURANG VINAYAK

JUDGEMENT

(1.) Antaji and Sadashiv were two joint Hindu brothers and the property in suit was the estate of the joint family consisting of the two brothers. Sadashiv died in 1876, leaving a widow Pavvati and two daughters. After Sadashiv death his widow continued to live with Antaji, who had become by survivorship the sole owner of the family property. Antaji's wife died during his life-time, and in 1877 Antaji himself died, leaving no issue or nearer heir than his brother's widow Parvati, who, as the nearest gotraja sapinda alive, succeeded him. Parvati took only a widow's estate in the property she thus inherited and was in possession and enjoyment of it till 1899, in the July of which year she died. She had, however, a few days, before her death, adopted Pandurang, defendant 1, and the present dispute is between Pandurang, the adopted son, and the plaintiffs some of whom are the reversioners entitled to succeed to Antaji as his heirs after the termination of Parvati's widow's estate. The fact of the adoption has been held established by both the Courts, and there is no question that plaintiffs 2, 4, 5,6, 7, 8 and defendant 3 are entitled to succeed if the adoption of Pandurang by Parvati is held to be invalid.

(2.) The Courts below have decided against the plaintiffs, holding the adoption by Parvati to be valid in law. This decision in favour of the validity of the adoption is mainly based on the authority of Rupchand V/s. Rakhmabai (1871) 8 Bom. H.C.R. 114 and Surendra V/s. Sailaja Kant (1891) I.L.R. 18 Cal. 385. The lower Courts hold, and we think so far rightly, that during Parvati's life, the plaintiffs, as reversioners, could not be said to have any vested interest in the property. They further hold that though Parvati's adoption is not one to the last male holder, still that would not make it spiritually invalid, and as her action does not divest any estate vested in third parties and was derogatory of no other rights but her own, the adoption was perfectly valid.

(3.) It is the soundness of this latter position which is mainly attacked before us, and which in our opinion, requires further and more careful consideration than is apparently bestowed upon it in the lower Courts.