MALLAPPA ADOPTIVE FATHER BHARMAPPA NATURAL FATHER MALLAPPA KENCH-RADI MINOR BY HIS GUARDIAN SHIVALINGAWA KOM BHARMAPPPA Vs. HANMAPPA BIN MARDEPPA KENCHRADDIAWAR, NATURAL HEIR OF THE DECEASED MARDEPPA BIN HANMAPPA

JUDGEMENT

(1.) The plaintiff; sued for possession of the house and. a one-fifth share of the lands as described in para. 1 of the plaint with mesne profits.

(2.) The first plaintiff is the adopted son of the second plaintiff who is the widow of one Bharmappa. Bharmappa admittedly died in union with Ms brothers, defendants Nos. 1 to 3 and the husband of defendant No. 4, leaving a minor son Mahadevappa. Thereafter there was a partition between Mahadevappa and Ms uncles. He died unmarried in 1907 leaving his mother the second plaintiff as his heir. In 1908 she demanded her share which the defendants refused, since when they have been in possession against her. In 1909 she adopted the 1st plaintiff.

(3.) The 2nd and 3rd defendants in their written statement contended inter alia that the adoption was invalid, and this is the, only question which has been argued before us in second appeal. The trial Court decided in plaintiff s favour. The lower appellate Court, however, modified the decree of the trial Courts, holding that the adoption was invalid, and awarded possession to the 2nd plaintiff only. It must be considered now as settled law that a widow succeeding as heir to her son who dies unmarried is entitled to adopt to her husband provided that her son has not attained ceremonial competence: Verabhai Ajubhai v. Bai Hiraba (1903) 27 Bom. 492.