GANGADHAR TUKARAM AKUL Vs. RACHAPPA NAGAPPA KINAGE

JUDGEMENT

(1.) This appeal requires determination on a very unusual state of facts. The suit was brought by the plaintiff as the adopted son of Nagappa, who died in 1894, to recover the suit property which was alienated by Nagiappa a widow Nagawa in 1906 in favour of the defendants. Nagawa purported to adopt the plaintiff on June 27, 1910, but it is clear, although she has denied it, that she had formed an illicit intercourse with one Sharnappa after, if not before, the death of her husband Nagappa and that there were two or more children born of that union. The contention of the defendants is that Nagawa in fact married Sharnappa by Udki marriage in 1907. They further contend that the adoption of the plaintiff in June 1910 never took place or alternatively it was invalid because Nagawa had remarried, and in any event they claim that they were entitled to be allowed the value of certain improvements made by them in 1918.

(2.) Now, as regards the question whether Nagawa could in law adopt the plaintiff, it is conceded for the purpose of this case that by the law of this Presidency she could not adopt if prior to that date she had remarried. On the other hand it has been laid down by Sir Norman Macleod and Mr. Justice Fawcett in Basvant Mushappa V/s. Mallappa Kaliappa (1920) I.L.R. 45 Bom. 459, s. c. 22 Bom. L.R. 1400. that in the Presidency of Bombay a Shudra widow though unchaste can make a valid adoption. The evidence goes to show that Nagawa was leading an unchaste life with Sharnappa right away down from 1894 to 1910, but on the above ruling this would not affect her power to adopt.

(3.) Ought we then on the evidence in this case to find that she went through the alleged Udki marriage in 1907 ? [His Lordship discussed the evidence bearing on the Udki marriage and proceeded :] Taking then the case as a whole, I think the oral evidence is insufficient to establish the truth of the Udki marriage, and there is no documentary evidence at all in support of it.