BASANGOWDA SHIVANGOWDA DHARMAGOWDAR Vs. RUDRAPPA FAKIRAPPA GANIGER

JUDGEMENT

(1.) [The judgment after setting out the facts proceeded :] It is urged on behalf of the plaintiffs, firstly, that the lower appellate Court made out a new case in appeal and reliance was placed on the rulings in Lala Rup Narain V/s. Gopal Devi (1909) I.L.R. 36 Cal. 780, 795, s.c. 11 Bom. L.R. 833, p.c. and Shivabasava bin Amingavda V/s. Sangappa bin Amingavda (1904) L.R. 31 I.A. 154, 159, s.c. 6 Bom. L.R. 770 and, secondly, that the lower appellate Court ought to have held that the adoption of Ishwargowda had been acquiesced in and its validity could not be impugned after a lapse of more than forty years. On behalf of the respondents it was urged that Ishwargowda with reference to his dealings described himself as Ishwargowda Ningangowda, that the adoption by Somawa with regard to watan lands was invalid under the ruling in Bhimabai V/s. Tayappa Murarrao (1913) I.L.R. 37 Bom. 598, s.c. 15 Bom. L.R. 783, that the onus was on the plaintiffs to prove not only the factum but the validity of the adoption and that Somawa could not adopt as she succeeded to the estate of Mudigowda as the widow of a gotraja sapinda.

(2.) In Lala Ru Narain V/s. Gopal Devi and Shivabasava kom Amingavda V/s. Samgappa bin Amingavda, it was held that a new point which involved the solution of questions depending upon an appreciation of evidence, ought not to be allowed to be raised for the first time in appeal. But, in the present case, it was incumbent on the plaintiffs not only to prove that Ishwargowda was in fact adopted by Gundappagowda, but also that his adoption was valid in order to establish that his rights in the natural family had ceased and he could not act as the manager of the joint family in which he was born. The question of the validity of Ishwargowda's adoption was not only a proper but a necessary issue in the case. The question, therefore, in this case is whether the adoption made by Somawa who succeeded to Mudigowda as a step- mother is valid. The step-mother is not one of the heirs in the compact series, and except in Bombay she has no right of inheritance, and in other provinces she is not even recognised as an heir. See Trevelyan's Hindu Law, p. 374; and Mayne a Hindu Law, paragraph 566, p. 830; Man V/s. Chinnammal (1884) I.L.R. 8 Mad. 107, f.b. and Seethai V/s. Nachiar (1912) I.L.R. 37 Mad. 286. A step mother is not included by the Mitakshara within the term mother. See Mitakshara Ch. II, Section 3, pl. 3. But, although the step-mother could not be introduced as an heir under the in mother, it was held in Kesserbai V/s. Valab Raoji (1879) I.L.R. 4 Bom. 188 and Russoobai V/s. Zoolekhabai (1895) I.L.R. 19 Bom. 707 that as the widow of gotraja sapinda of the propositus, and therefore, according to the doctrine of the Mitakshara and the Mayukha, as a gotraja sapinda herself, she could not be regarded as altogether excluded from the succession to her step-son. She was, therefore, allowed to come in as an heir in Bombay on the strength of the cases of Lakahmibai V/s. Jayram Hari (1859) 6 B.H.C.R. (A.C.J.) 152 and Lallubhai Bapubhai and Ors. V/s. Manhnvarbai and Ors. (1876) I.L.R. 2 Bom. 388. The stepmother, however, would come in as heir as the widow of gotraja sapinda after the grand- mother, the sister and the half sister. The step-mother, however, stands on a different footing in the matter of partition and is allotted a share. See Mitakshara, ch.I, sec. vii, pl. 1, Gharpure's translation, p. 202; and Mayukha, ch. IV, sec. iv, pi. 15 and 18, Gharpure's translation, p. 57, which refers to the text of Vyasa relating to a share allotted to the step-mother and grand- mother: "The sonless wives of the father are declared equal sharers; so are all paternal grand- mothers declared equal to the mother." The right of sharing at the time of partition was not considered by the Madras High Court as a safe ground for concluding that she had any heritable right in the estate of her step-son. See Mari V/s. Chinnammal (1884) I.L.R.S. Mad 107, 124, f.b. The right of the step-mother is, however, recognized in Bombay as an heir of her step-son in her capacity of a widow of a gotraja sapinda.

(3.) In Datto Govind V/s. Pandurang Vinayak (1908) I.L.R. 32 Bom. 499, s.c. 10 Bom. L.R. 692 it was held that a Hindu widow who succeeded to an estate not her husband's but as a gotraja sapinda of the last male holder under the rule established by Lulloobhoy Bappoobhoy v. Cassibai (1880) L.R. 7 I.A. 212 and in consequence of the absence of nearer heirs, could not make a valid adoption. That case related to an adoption made by a brother's widow. It was argued in Datto Govind's ease that the power to adopt was inherent in every Hindu widow, and the widow of a gotraja sapinda may be temporarily incapable of acting upon it, and that the power to adopt which was in suspension revived when she got the estate of a gotraja sapinda and when her act of adoption would not have the effect of divesting any estate but her own. That argument was not accepted on account of the decision of the Full Bench in Ramkrishna V/s. Shamrao (1902) I.L.R. 26 Bom. 526, s.c. 4 Bom. L.R. 315, f.b. and the decision in the case of Thayammal and Kuttisami Aiyan V/s. Venkatarama Aiyan (1887) L.R, 141 A. 67, 69. In the present case if Gundappagowda's mother had been living, she would have inherited the estate in preference to Somawa the step-mother, and she could not have made a valid adoption according to the decision of the Pull Bench in Ramkriehna V/s. Shamrao which has been approved by the Privy Council in Madana Mohana V/s. Purushothama (1918) L.R. 45 I.A. 156, s.c. 20 Bom. L.R. 1041.