BHIMABAI JIVANGOUDA PATIL Vs. GURUNATHGOUDA KHANDAPPAGOUDA

JUDGEMENT

(1.) [His Lordship, after setting out the facts of the case, proceeded.] The validity of the adoption of defendant No. 2 would depend, firstly, on the question whether the authority set up by defendant No. 1 was proved, and, secondly, if the authority was not proved, whether the adoption of defendant No. 2 was valid. It is urged on behalf of the appellants that even if the authority alleged by Bhimabai is not proved, and even if Jivangowda is held not to have separated from Nilkanthagowda, the adoption would be valid according to the ruling in Yadao V/s. Namdeo (1921) L.R. 48 I.A. 513, s.c. 24 Bom. L.R. 609 and Harigir V/s. Anand Bharathi. [1925] A.I.R. (P.C) 127, p.c. It is urged on the other hand that if the authority alleged by Bhimabai is not proved, and if Jivangowda and Nilkanthagowda continued to be joint, the adoption of defendant No. 2 would be invalid according to the decision of the Full Bench in Ishvar Dadu V/s. Gajabai (1925) 28 Bom. L.R. 782 that the decision of the Privy Council in Harigir V/s. Anand Bharathi was delivered prior to the decision of the Full Bench in December 1925, and did not affect the decision of the Full Bench on the special facts of that case and that the whole of the property in suit being watan property, the adoption of defendant No. 2 was invalid on the authority of the rulings in Bhimabai V/s. Tayappa Murarrao (1913) I.L.R. 37 Bom. 598, s. o. 15 Bom. L.P. 783, F.B and Adiveva V/s. Chanmallgowda. .

(2.) [His Lordship next considered whether the authority alleged by Bhimabai was proved, and held that it was not proved. The judgment then proceeded :]

(3.) It is urged on behalf of the respondent that Nilkanthagowda and Jivangowda continued to be joint after the separation of Khandappagowda in 1895, that the adoption of defendant No. 2 would be invalid unless Jivangowda had given express authority to Bhimabai to adopt or unless Nilkanthagowda ov Dyaman-gowda consented to the adoption, and that the adoption of defendant No. 2, which would have the effect of divesting Dattatraya of one-half of his property, would be invalid as no such consent is alleged or proved in this case.