1. It is necessary in this case to state briefly the facts out of which the present second appeal arises.
2. One Venkappa had four sons, Melgirappa, Konappa, Ramappa and Gurappa. These four brothers were divided many years ago. Ramappa, the third Son of Venkappa, had a son Hanmappa; and the fourth son Gurappa had two sons, one of whom was Kristappa. Kristappa had two sons Lakshmipati-rao and Hanmappa. This Hanmappa was adopted by Ramappa's son Hanmappa. He (the adopted son of Hanmappa) had a son Shriniwasrao and two daughters by his first wife Gangabai and one daughter by his second wife also named Gangabai. Lakshmipatirao had no male issue and is said to have taken Shriniwasrao in adoption in the year in 1846. It is the adoption of Shriniwasrao that is in dispute in this litigation. Lakshmipatirao died in 1846 leaving a widow Lakshmibai and the boy Shriniwasrao. Hanmappa, the natural father of Shriniwasrao, died in 1852, leaving a young widow Gangabai (his second wife) and three daughters. His first wife had predeceased him. The surviving widow Gangabai died in 1898.
3. The plaintiff Timappa, who is a great-grandson of Konappa, the second son of Venkappa, filed the present suit in 1902 as a reversioner claiming Hanmappa's estate after Gangabai's death. He joined all the members of the four branches of the family of Venkappa including Hanmappa's daughters and their sons as defendants.
4. Defendants 1 and 2 are the sons of Shriniwasrao and are principally interested in contesting the plaintiff's claim. Defendants 3, 4, 5 and 6 are Hanmappa's daughters and their sons. Defendants 7, 8, 9 and 10 represent Melgirappa's branch. Defendants 11 and 12 belong to Gurappa's branch but to a sub-branch other than that of defendants 1 and 2 and are opposed in interest, to defendants 1 and 2. Defendant No. 13 belongs to Kolappa's branch and is the brother of the plaintiff. The relationship of the parties is given in detail in the genealogical table (Exhibit 813) attached to the judgment of the lower appellate Court.
5. The plaintiff 'a claim relates to the property of Hanmappa who was adopted in Ramappa's branch. The property with which we are concerned is vatan property. The plaintiff claims to be entitled to a fifth share in the property and seeks to reoover possession thereof with mesne profits after partition. His claim is made on the footing that the daughters of Hanmappa cannot inherit the vatan property in consequence of the provisions of Bombay Act V of 1886, that Shriniwasrao, the natural son of Hanmappa, was given away in adoption to Lakshmipatirao and that Shrinivasrao' s sons, defendants 1 and 2, have been in wrongful possession of the property after Gangabai's death in 1898.
6. It is common ground now that defendants 3 to 6 have no right to the property in question; and it is not necessary to notice the defence made on behalf of some of them in the trial Court.
7. Defendants 7 to 13 sided with the plaintiff and claimed their respective shares as reversioners in the trial Court.
8. Defendant No. 2 did not appear. Defendant No. 1 contended, among other things, that Hanmappa (Lakshmipatirao's brother) was not adopted by Hanmappa, the son of Eamappa, as alleged by the plaintiff', that Shriniwasrao's adoption by Lakshmipatirao in 1846 was in the dvyamuahyayana form, that their father Shriniwasrao, and, after his death in 1885, they had been in adverse possession of the property since 1852 and that the plaintiff s claim was time-barred.
9. The trial Court found that Hanmappa, was in fact adopted by Hanmappa, son of Ramappa, that Lakshmipatirao adopted Shriniwasrao in 1846 in the simple form (as a kevala dattaka) and not as a dvyamushyayana son of himself and Hanmappa, that the property belonged to Hanmappa at the time of his death and that the claim was not time-barred. Accordingly a decree was passed in favour of the plaintiff and other defendants-sharers for partition and possession with mesne profits against defendants 1 and 2 in 1908.
10. In the appeal by defendant No. 1 to the District Court, the findings of the trial Court were affirmed except as to a part of the property. The lower appellate Court confirmed the decree of the trial Court subject to a variation as to a part of the property in 1911.
11. The defendant No. 1 preferred the present appeal to this Court in 1911.
12. As regards respondent No. 12 (Ramchandrappa),the appeal abates, as no steps have been taken in time by the appellant to bring the legal representatives of Ramchandrappa on the record, who died during the pendency of the appeal.
13. In support of the appeal Mr. Jayakar on behalf of the appellant has urged, firstly, that the adoption of Shriniwasrao by Lakshmipatirao must be presumed to have been in the dvyamushyayana form according to Hindu Law, unless a stipulation to the effect that it was to be in the simple form was alleged and proved by the plaintiff; secondly, What apart from this presumption the documentary evidence in the case establishes the fact that Shriniwasrao was a dvyamushyayana son of Lakshmipatirao and Hanmappa; thirdly, that the plaintiff's claim is barred on account of the property having been in the adverse possession of Shriniwasrao and defendants 1 and 2 since 1852; and, lastly, that no mesne profits should have been allowed to the defendants-sharers.
14. It is not disputed now that Hanmappa (brother of Lakshmipatirao) was adopted in Eamappa's branch as alleged by the plaintiff and found by the lower Courts.
15. It will be convenient to deal with the appellant's contentions in the order in which I have stated them.
16. As regards the first contention, it is based on the argument that according to Hindu Law when the only son of a brother, divided or undivided, is adopted he becomes a dvyamushyayana son of both the brothers, the adopter and the giver, in the absence of a stipulation to the contrary. It is further argued that though Hanmappa became a distant cousin of Lakshmipatirao after his adoption in Ramappa's branch, he still remained the brother of Lakshmipatirao with the result that the above rule of Hindu Law would apply to Shriniwasrao's adoption: Mr. Coyaji for the plaintiff has urged that the rule of Hindu Law as stated by Mr. Jayakar has no application to the present case as Hanmappa's natural rela-tionship with Lakshmipatirao terminated on his adoption and that he was related to Lakshmipatirao as a divided and distant cousin, when he gave his only son Shriniwasrao in adoption to Lakshmipatirao. In other words he maintains that Hanmappa was not Lakshmipatirao's full brother in 1846 when Shriniwasrao was given in adoption. He further contends that there is no such rule of Hindu Law as stated by Mr. Jayakar, that a dvyammhyayana adoption is the result of a stipulation, that the stipulation must be proved in every case by the person who'relies upon such an adoption, including the case of the adoption of an only son of a brother and that unless the stipulation constituting the boy a dvyamushyayana son is proved, the adoption must be held to be in the simple form.
17. After a careful consideration of the arguments on both sides it seems to me in the first place that Hanmappa cannot be treated as the uterine brother of Lakshmipatirao at the date of Shrinivas's adoption in 1846. It is undisputed and indisputable that Hanmappa lost all rights to the property of his natural father on his adoption in Ramappa's branch, that though the gotra did not change in this particular case, the degree of relationship was altered for the purposes of inheritance and the obligation to offer oblations underwent a similar change, Manu's verse No. 142 in the Ninth Adhyaya of his Smriti, which is quoted with approval both in the Mitakshara and the Vyavahara Mayukha, is clear on the point, Mr, Jayakar, however, argues that the tie of blood or natural relationship, which is not included in the terms gotra, riktha, pinda or svadha used in the above verse, subsists even after the adoption. It is urged that for the purposes of marriage, for instance, the existence of the blood-relationship, has to be recognised and there is no reason why it should not be recognised for the purposes of adoption under such circumstances as we have in the present case. It seems to me, however, that the whole argument is opposed to the conclusions in the Vyavahara Mayukha, Dattaka Mimansa and Dattaka Chandrika. It is not suggested that there is anything in the Mitakshara bearing on this point, After referring to the above text of Manu the conclusion is thus stated in the Vyavahara Mayukha : ' Even by the terms gotra (family) pinda (funeral oblation) riktha (heritage) and svadha (shradha & c) are to be understood all the acts connected with the pinda or funeral oblation due to the natural father; their extinction is pronounced. From this also follows [as a matter of course] the cessation of family connection with the uterine brother and the father's brother and the rest.' (See Mandlik's Hindu Law, p. 59). It is significant that the word sambandha (sic) is used in the original text by Nilkantha for the expression ' family connection' in the translation. The conclusion is also emphasised later on at p. 61 of the book by referring to the text of Manu as involving ' an entire cessation of connection with the natural father and the rest,' the expression corresponding to the words 'entire cessation of connection' being (sic) Further on in the same chapter with reference to marriage the conclusion is thus stated at p. 61 of Mandlik's Hindu Law:-' Further a marriage in the family of the natural father within seven degrees is altogether illegal according to this text of Gautama : with the paternal Bandhus or Kinsmen on the progenitor's side up to the seventh degree and with those on the mother's side up to the fifth & c.' Thus it is clear that the natural relationship is recognised for the purpose of prohibiting marriages within certain degrees of relationship in virtue of an explicit text and opinion based thereon. The conclusions in the Dattaka Mimansa and the Dattaka Chandrika on this point are generally to the same effect [see Dattaka Miraansa, Section vi, paragraphs 6, 7, 8, 10 and 11 and Dattaka Chandrika, Section II, paragraphs 17 and 18-Stokes' Hindu Law Books, pp. 599-600 and 640 respectively]. These passages establish clearly that though the natural relationship is recognised for the purpose of prohibiting marriages within certain degrees of relationship, there is an entire cessation of connection of the adopted boy with the natural father's family after adoption. It is not necessary in this case to decide-and I am far from deciding-that the disabilities arising from the recognition of natural relationship are confined to the question of marriage. I have, however, no hesitation in holding that in spite of the natural relationship which originally subsisted between Laxmi-patirao and Hanmappa, Hanmappa's natural son Shrinivas, born long after Hanmappa's adoption, would belong to Ramappa's branch and would not be treated as Lakshmipatirao's natural brother's son as if Hanmappa had not been adopted.
18. This conclusion becomes clearer when regard is had to Manu's text (Manu, IX, 182) and the opinions based thereon, upon which Mr. Jayakar has relied mainly in connection with his first contention. The opinions expressed in the Mitakshara and the Vyavahara Mayukha in favour of the brother's son are expressly based upon Manu's text (Manu IX, 182), which has been translated as follows: ' If among several brothers of the whole blood, one have a son born, Manu pronounces them all fathers of male issue by means of that son.' (See Stokes' Hindu Law Books, p. 424-Mitakshara, Ch. I, Section XI, para 36). It is quite clear to my mind that no Hindu brother can be pronounced to be a father of male issue within the meaning of this text, if a son is born to his brother, who is already given away in adoption long before the birth of the son. This text can refer only to the case of a son of a brother who is a brother of the whole blood at the time of the birth of the son and whose connection with the family of his own birth has not ceased on account of adoption; and as pointed out by Vijnaneshvara ' it is not intended to declare him son of his uncle, ' but ' to forbid the adoption of others if a brother's son can possibly be adopted.'
19. It follows, therefore, that the very foundation which is essential for Mr. Jayakar's first contention does not exist in this case. Shrinivasrao, when born, was not Lakshmipatirao's brother's son, but his divided and distant cousin's son.
20. Assuming, however, in favour of the appellant that Hanmappa, in spite of his adoption in Ramappa's branch, can be treated as Lakshmipatirao's brother of the whole blood at the time of Shrinivasrao's adoption by Lakshimipati, Mr. Jayakar's cou-tention that the adoption must be presumed to be in the dvyamushyayana form as a matter of law unless a contrary stipulation in favour of a simple adoption is established, cannot be accepted. I have already set forth the rival contentions of the parties on this point. Mr. Jayakar relies upon the observation in Mayne's Hindu Law (Section. 145, p. 185, 8th Ed.) that an only son can be adopted as a dvyamushyayana either by an express agreement that his relationship to his natural family shall continue or when he is the only son of a brother taken in adoption by another brother, in which case the double relationship appears to be established without any special contract. There are similar observations in other modern books, which Mr. Jayakar has referred to. [See for example, Sarkar's Hindu Law, p. 162, 4th Ed. and Tagore Law Lectures for 1888 on Adoption at p. 302]. Mr. Mayne has referred to several texts and cases in the foot-note in support of this observation; and it will be necessary to examine them briefly to see whether in Hindu Law without proof of an agreement a brother's only son can be held to be a dvyarnushya-yana when adopted by another brother. Before I do so, however, it will be appropriate to state Mr. Jayakar's argument briefly, as it may help to restrict the scope of the examination of the toxts and other authorities. His argument is that adoptions are of two forms, one simple (kevala) and the other dvyamushyayana. The dvyamushyayana adoptions are of two kinds, nitya and anitya. According to him the nitya dvyamushyayana is the result of a stipulation that the boy shall be the son of both (fathers.) The anitya dvyamushyayana is not the result of any agreement but arises when the ceremony of tonsure has been performed in the natural family of the adopted boy and when the boy belongs originally to a different gotra. This form of dvyamushyayana, it is conceded by Mr. Jayakar, is obsolete and in any case, it has no application to the present case.
21. Mr. Jayakar, however, argues that the case of an only son of a brother is an exception to the general rule that there should be a stipulation in the case of a nitya dvyamushyayana adoption and that in his case it should be presumed to be a dvyamushyayana adoption without proof of any stipulation. Thus it is necessary to consider whether such an exception is recognised in any of the texts and decided cases and whether apart from texts and precedents on principle such an exception could be recognised,
22. As regards the texts, the Mitakshara is silent on the point. The dvyamushyayana son mentioned by Vijnanesvara is not the dvyamushyayana son which later writers refer to and admittedly the species of a dvyamushyayana son referred to by Vijnanesvara is obsolete and has nothing to do with our present point.
23. The Vyavahara Mayukha does not refer to any such exception. It lays down that 'dattaka or given son is of two sorts; (1) hevala (simple) and (2) dvyamushyayana,son of two fathers. The first is one given without any condition, the second is one given under the condition that son belongs to us both'. (Mandlik's Hindu Law, p. 58). The word used for condition is sanvid (sic). Then after a long discussion about the doubt raised by some that the simple (kevala) adopted son does not exist, the conclusion is thus stated at p. 62 :-'Thus the simple adopted son and a son of two fathers being established, the Sanvit or condition (in the case of the dvyamu-ahyayana) to the effect that he shall belong to us both is likewise established, because (in the condition there is a visible object, namely, that) the adopter may know him to be the son of both the fathers'.
24. There is no exception to this rule stated anywhere by Nil-kantha in the chapter on adoption. The rule is stated in unequivocal terms. Mr. Mayne refers to the Vyavahara Mayukha in his foot-note, but I am unable to say that the reference supports the conclusion stated there. I attach great importance to the circumstance that the Vyavahara Mayukha recognises no such exception, as in point of authority, so far as the present point is concerned, the Vyavahara Mayukha ranks next to the. Mitakshara.
25. The Dattaka Mimansa also fails to lend any support to the contention. The passages relied upon areas. II, paragraphs 37, 38, 44 and Section VI, paras 34-36 and 47 and 48 (Stokes' Hindu Law Books at pp. 554, 555, 608, 609 and 612). It is really not necessary to examine these passages in detail. They refer to the propriety or even the necessity of adopting the son of a brother, when there is one, even if he be the only son and it is pointed out that the prohibition against the adoption of an only son does not apply to the case of a brother's only son. There is nothing in these passages, so far as I can see, to indicate whether in the opinion of the author in the case of a brother's only son there is no need for a stipulation or condition. On the contrary in Section vi, paragraph 41 there is an indication that a nitya dvyamushyayana adoption is the result of the 'stipulation that this is the son of the two (the natural father and the adopter).' In the Dattaka Chandrika the passages referred to are Section I -27, 28, in-17 and Section v-33. (Stokes' Hindu Law, pp. 635, 636, 650 and 651 respectively). The passages most favourable, to the appellant are paragraphs 27 and 28 in Section I. No doubt the adoption of a brother's son is directed and the difficult)' arising from Vasishtha's text relating to the prohibition against the adoption of an only son is avoided by a reference to the dvyamushyayana form of adoption in these terms:-'For the text in question is applicable to a case other than that of the dyyamuuhyayana, the extinction of the lineage contemplated in the clause of the text containing the reason, would not take place. ' There is nothing to show that in the opinion of the author, there is no need for a stipulation in the case of the adoption of the only son of a brother in the dvyamushyayana form.
26. It seems to me that these texts taken as,a whole do not support the appellant's contention, but establish that in the dvyamushayayana form of adoption a stipulation that the boy is the son of both the adopter and the natural father is necessary. In fact such a stipulation forms the distinguishing feature of a dvyamushyayana adoption, there being no other difference in the ceremony between kevala and dvyamuehyaya-na adoptions.
27. Among the treatises on Hindu Law, the passage in Strange'e Hindu Law, Vol. I, p. 86, no doubt appears to be in favour of the appellant. But it mainly rests upon the authority of the Dattaka Chandrika, which I have already dealt with. The passage at p. 107 of the second volume of the same work does not touch the point in question.
28. The passages in Steele's Law and Custom of Hindu Castes at pp. 45 and 183 refer to the prohibition to adopt ' an only son, a youngest or an eldest son ' and to the exception made in favour of a brother's son. But there is nothing therein which throws any light on the present point.
29. Sarvadhikari's treatise on the Hindu Law of Inheritance contains a reference to the subject of dvyamushyayana sons at pp. 533-536. It is stated at p, 535 that ' if it so happened that the adopted son belonged to the family of the adoptive father-if, for instance, he was the son of a brother, then the law regarding a dvyamushyayana may be called into operation and all its consequences must be strictly adhered to '. The proposition is brpadly stated and it is conceded that it is true, if at all, as regards the brother's son only. But if regard is had to the context, I do not think that it can be accepted as supporting the appellant's contention. The author observes that ' the son of two fathers seldom exists in practice and that there is a tendency to devise means to extinguish the double filial relationship altogether.'
30. The last treatise that I need refer to is Golap Chandra Sarkar Sastri's Hindu Law. At p. 162 of the fourth edition of this book, the learned author observes that ' if an only son of one brother be adopted by another brother or his widow, he becomes, by operation of law the son of two fathers, an express stipulation being unnecessary'. The only authority cited in support of this view is the case of Krishna v. Paramshri I.L.R. (1901) Bom. 537. But this case only decides that the power of giving and taking an only son in adoption in the dvyamushyayana form is not confined to brothers, but may also be exercised by their widows. There is no other authority cited in support of the proposition. I may here mention that the same learned author refers to the Mitakshara, c. I, Section x, paragraphs 1 to 3 in support of a somewhat similar remark in his book on Adoption (Tagore Law Lectures for 1888). But the dvyamushyayana son mentioned by Vijna-nesvara in this part of his commentary is quite different from the dvyamushyayana son we are dealing with. The dvya' mushyayana son in the sense of the Mitakshara is obsolete now. It is also significant that at p. 376 in the same book his observations about the nitya dvyamushyayana and anitya dvya' tnushyayana show that in the former there must be a stipulation to that effect.
31. The result is that there are observations in some of these books, which support the appellant's contention. But in this Presidency we have to be guided mainly by the Mitakshara and the Vyavahara Mayukha supplemented by the Dattaka Mimansa and the Dattaka Chandrika.
32. These learned authors do not deal with the Vyavahara Mayukha at all and so far as they refer to the Dattaka Mimansa and Dattaka Chandrika, I am of opinion that they, are not supported by them. But above all there is no precedent in favour of their view from this Presidency and it seems to me that it is not safe to accept their opinion on this point so far as Western India is concerned, where by far the common form of adoption is the simple (kevala) form and not the dvyamushyayana form. It is pertinent to note here that the view as to the prohibition against the adoption of an only son in this Presidency, which is to a large extent connected with the present point, has been somewhat different from that which obtained in other Presidencies until their Lordships of the Privy Council pronounced in favour of the validity of the adoption of an only son in 1899 : see Sri Batumi Gurulinga-Bwayni v. Sri Balusu Ramalakshniamma (1899) 26 L.B. 113. This consideration also affords a reason for not accepting too readily the opinions on this point expressed in these books on Hindu Law.
33. I now come to the decided cases, which Mr. Mayne refers to and some of which have been referred to in the course of the argument. The most important is the case of Srimati Uma Deyi v. Gokoolanund Das I.L.R. (1878) IndAp 42, Their Lordships, after referring to certain passages in the Dattaka Mimansa and Dattaka Chandrika, concede that ' they do in terms prescribe that a Hindu wishing to adopt a son shall adopt the son of his whole brother, if such a person be in existence and capable of adoption, in preference to any other person; and qualify the otherwise fatal objection to the adoption of an only son of the natural father, by saying that, in the case of a brother's son, he should, nevertheless, be adopted in preference to any other person as a dvyamiishyayana or son of two fathers''. The point that was decided was that the directions contained in these texts were not mandatory and that an adoption though not in conformity with them, was valid. So far it seems to me that their Lordships do not consider or decide the point, which we have to decide, in this case. But further on their Lordships observe as follows :- ' Again, to constitute a dvyamushyayana there must be a special agreement between the two fathers to that effect; or the relation must result from some of the other circumstances indicated by Sir William MacNaghten at p. 71 of his Principles and Precedents'.
34. The passage at p. 71 of this book shows that a dvyamushyayana adoption ' may take place either by special agreement that the boy shall continue son of both fathers, when the son adopted is termed nitya dvyamushyayana; or otherwise, when the ceremony of tonsure may have been performed in his natural family, when he is designated anitya dvyamush' yayana '. Thus the observations of their Lordships of the Privy Council instead of favouring the appellant's contention, favour the view that a nitya dvyamushyaywna adoption can take place only by special agreement to that effect. No exception to this rule is mentioned either in the judgment or in Sir William MacNaghten's Principles and Precedents, apart from anitya dvyamushyayana adoption which stands on a different footing altogether.
35. The other case is the case of Nilmadhub Doss v. Binhuinber Doss (1869) 13 M.I.A.80,. The question that their Lordships had to decide was, as observed at p. 97 of the report, whether the respondents in the case had established that there was, in fact, an adoption of Ramlochan Dass by Goorooprashad Dass. On a consideration of the evidence their Lordships held against the respondents. The question to be considered was purely one of fact and the presumptions referred to at pp. 100 and 101 of the report are presumptions of fact and not of law. The presumption that no sonless Hindu will fail to adopt a son or to make provision for an adoption is not strong and the other presumption that he would not break the law by giving in adoption an eldest or only son or allowing him to be adopted otherwise than as a dvyamushyayana or son to both his uncle and his natural father referred to in contrast with the first cannot be treated as much stronger than the first. These observations must be taken with reference to the context and cannot be properly taken out of their context and treated as propositions of law. Their Lordships have decided in the case already referred to that these rules of law are not mandatory but merely directory. It may be that in appreciating evidence as to the fact of a particular adoption, the Court may be satisfied with less proof in the case of an eldest or only son of a brother than in any other case in deciding whether that adoption was in the dvyamushyayanti form or not. But the case cannot be treated as deciding that, as a matter of law there can be a dvyamtishyayana adoption without a stipulation or condition to that effect between the giver and the adopter, when both of them are brothers and when the boy happens to be the only son of the giver.
36. The other cases referred to by Mr. Mayne do not carry the point any further and need not Toe discussed. It will be enough to state that the decision in Permaul Naioken v. Pottee Ammal1849 M.S.D.A. 234. is based upon the remark in Strange's Hindu Law, Vol. I, p. 86, which I have already dealt, with,
37. There is no decision of this Court bearing on this point. Certain observations of Ranade J. in the-case of Basava v. Lingangauda I.L.R. (1894) Bom. 428, have been relied upon. But I feel quite clear on a consideration of these observations that they do not touch the point in question; and that there was no occasion then to consider the present point. It is significant that Mr. Justice Banade refers to this form of adoption as having become generally, if not altogether, obsolete in this Presidency. The result of all these decisions taken together seems to me to support the conclusion that a nitya dvyamuahyayana adoption is always the result of an agreement to that effect and that there is no exception to the rule.
38. If we consider the question apart from texts and precedents, it is clear that there is really no foundation for the appellant's contention. The theory is that according to certain texts of Hindu Law the adoption of an only son is absolutely prohibited. How is the adoption of a brother's only son, who would naturally and obviously be the most suitable boy to adopt, if he were otherwise eligible, to be justified The only way that the commentators could suggest was the one which in fact they did suggest, viz., that the adoption could be in the dvyamush-yayana form. But the supposed prohibition of the adoption of an only boy no longer exists. Therefore there is nothing to be avoided while giving an only son, or even an only son of a brother, in adoption. Besides the direction as to adopting a brother's son in preference to any other boy has been held long since to be a recommendation and not an imperative command; and there is no reason to suppose that the direction as to adopting a brother's son has been ever treated in this Presidency as anything more than a recommendation. Under these circumstances there would be no ground for presuming that the only son of a brother, if given in adoption, must be deemed to be given as a dvyamushyayana son. It is open to that brother to give his only son in adoption to a stranger if he chooses. It is equally open to him to give him to his own brother, if so minded. The pressure upon his conscience, if any, would be much the same in either case from the point of view of Hindu sentiment. If there is need to prove an agreement to support the plea of a dvyamnshyayana form of adoption in one case, there is in my opinion equal need for proof of such an agreement in the other case.
39. On a careful consideration of all the arguments for and against this point, I have come to the conclusion that in every case of a dvyamushyayana form of adoption, there must be an agreement to that effect and that the agreement must be proved by the person setting up the dvyamushyayana adoption, like any other question of fact as much in the case of the adoption of an only son of a brother as in any other case of such an adoption. I refer here of course to the case of a nitya dvyamushyayana. An anitya dvyamushyayana is undoubtedly independent of an agreement; but with that we have nothing to do in this case.
40. The second contention relates to the question of fact. Mr. Jayakar has urged that having regard to Exhibits 835, 833, 834, 144 and 120 it is' clear that the adoption of Shrinivas was in the dvyamushyayana form. Both the lower Courts. have considered this and other evidence and arrived at the conclusion that the adoption of Shriniwas was in the simple form and not in the dvyamushyayana form. These documents have been read to us and I am unable to say that the finding of fact is not justified. There is no evidence of any stipulation between Lakshmipatirao and Hanmappa that Shrinivas was to be the son of both of them. The yadi, which of in the nature of a will, of Lakshmipatirao (Exhibit 835) made in 1846, does not refer to any such stipulation. There is nothing to show that Hanmappa treated Shrinivas as a dvyamushyayana son during his life-time up to 1852. The statements of Lakshmibai, Shrinivas and Gangabai after Hanmappa's death do not establish the plea of a dvyamushyayana adoption. There is no reason to suppose that the presumption mentioned by their Lordships of the Privy Council in Nilmadhob's case above referred to has not been properly considered by the lower Courts in appreciating this evidence. Further with reference to this presumption it has to be remembered,.as pointed out by Sir Charles Sargent C.J. in the Full Bench case of Waman v. Krishnaji(X), 'that up to the time when Lahshmappa v. Ramava (1889) 1 I.R.Bom. 249. was decided with the exception of the opinion expressed by Sir Joseph Arnould,.the adoption of an only son had been regarded by the late Sadar Adalat and by this Court as valid'. The case of Lahshmappa v. Ramava (1875) 12 B.H.C.R. 364, was decided in 1875 and the opinion of Sir Joseph Arnould was expressed in 1869. The presumption, therefore, cannot be said to be particularly strong in favour of the appellant. For all these reasons, I think the concurrent finding of the lower Courts on this point must be accepted by us in second appeal.
41. The next contention relates' to the plea of limitation. This suit is admittedly governed by Article 141 of the Limitation Act of 1877 and the suit filed in 1902, within four years of the, widow's death, would be in time. The reversioners would not be affected by any adverse possession against the widow during her life : see Runchhordas v. Parvatibai I.L.R. (1899) IndAp 71. But it is argued for the appellant that before the Limitation Act of 1871 came into force, the title to this property was acquired by Shrinivas-rao and the right to sue him had become barred within the meaning of Section 2 of Act XV of 1877, in virtue of the Limitation Act, XIV of 1859, on account of Shrinivasrao's adverse possses-sion for over twelve years. The lower Courts have found that assuming Shrinivasrao's possession to have commenced in 1852, it was not adverse to the widow Gangabai and that her right to sue him had not become barred in 1873 when the Limitation Act of 1871 came into force and when Article 142 entitling a Hindu reversibner to sue within twelve years from the date of the widow's death was introduced for the first time in the Limitation Act of 1871. Mr. Jayakar has relied upon the same documents (Exhibits 833, 834, 144 and 120) and an order (Exhibit 846) made on the Mamlatdar's report, as showing that the possession of Shrinivas must be held to be adverse to Gangabai since 1852. This again is largely a question of fact. Though several cases have been cited in the course of the argument it is not necessary to refer to them. Both the lower Courts have come to the conclusion that the possession of Shrinivas was not adverse. Having regard to 'the fact that Gangabai was a young widow about twenty years old in 1852, it was quite natural that she would like the management to be carried on by Lakshmibai, who was about 32 years old then or by Shrinivas who was about 18 years of age. It did not matter to her that the Revenue authorities at the time declined to recognise Shrinivasrao's adoption by Laxmipatirao and entered Shrinivas's name in the revenue records in place of Hanmappa's name as his natural son. Out of all the agnates in the family, she would naturally turn to Lakshniipatirao's branch for assistance after Hanmappa's death. The statements above referred to show that Gangabai believed that she was an heiress to the property of Hanmappa and consented to the management by Lakshmibai. It would not matter to her whether Lakshimibfli managed the property or Shrinivas did so. They all agreed at the time as to the management of the property and there is no reason to suppose that the management was assumed by Shrinivas in 1852 in derogation of Gangabai's rights. Under the circumstances Shrinivas must be deemed to have been in possession of the property with the consent of Gangabai. There is nothing to show that the possession, which was permissive in the beginning became adverse more than twelve years before the Limitation Act of 1871 came into force. The earliest overt act, of which there is evidence, is the mortgage of 1862 effected by Shrinivas. There in nothing to show that Gangabai had notice of this act or that under the circumstances it was necessarily of such a nature as to alter the character of the possession. But this is well within twelve years prior to the Act of 1871. The Court would be slow to hold that possession which has commenced lawfully has subsequently become adverse to the rightful owner unless the evidence clearly and Unequivocally establishes the fact. There is nothing in the subsequent conduct of the parties or in the evidence to justify the inference that the permissive possession of Shrinivas became adverse to Gangabai more than twelve years before April 1873. Mr. Jayakar has argued that the possession, if shown to have been adverse in 1862, should be presumed to be adverse even prior to 1862. But I am quite unable to accept this argument. It is clear to my mind that the possession was permissive in 1852 and is not shown to have become adverse at any time for more than twelve years prior to April 1873. Thus assuming in favour of the appellant that prior to the Act of 1871 any adverse possession against the widow would be effective against the reversioners it is not shown that the widow's right to sue was barred under Claus 12 of Section 1 of Act XIV of 1859 before April 1873.
42. Mr. Coyaji has contended that having regard to the provisions of Bombay Regulation V of 1827, under which no title by prescription could be acquired without enjoyment of the immoveable property for thirty years, as also to the absence of any section in Act XIV of 1859 corresponding to Section 28 of Limitation Act XV of 1877, the defendant No. 1 or rather Shrinivasrao could not be said to have acquired a title to the property within the meaning of Section 2 of Act XV of 1877 before April 1873. He relies upon Rangacharya v. Damcharya I.L.R. (1912) Bom. 231. Shrinryasrao's possession commenced in 1852 and he had not enjoyed the property for more than thirty years in 1873. It is also contended by Mr. Coyaji that even if the widow's right to site may have been barred in 1873, the plaintiffs' right to sue could riot be treated as barred within the meaning of 'a. 2 of Act XV 1877, as the plaintiff claims as a reversioner in his own right and not under the widow. Thus his argument is that even if the possession of Shrinivas be adverse to the widow for over twelve years prior to April 1873, Shrinivas had acquired no title to the property and plaintiff's right to sue was not barred in April 1873 within the meaning of Section 2 of Act XV of 1877. It is really not necessary to consider this argument any further in view of the conclusion I have arrived at on the question of adverse possession. But I am not at all sure that the plaintiff's right to sue can be treated as barred, if the widow's right to sue was barred before 1873, within the meaning of Section 2 of Act XV of 1877, as contended by Mr. Jayakar and assumed by the lower Courts,.'see Lala Soni Ram v. Kanhaiya Lal I.L.R. (1913) IndAp 74.
43. Lastly, as regards mesne profits, apparently no objection was taken in the lower appellate Court to the decree of the trial Court on this point. The only ground upon which the claim of the defendants-sharers to mesne profits is now resisted is that they were not claimed by the sharers in their written statements. I do not think that it would be just to construe the pleadings strictly as contended by Mr. Jayakar. The defendans -sharers claimed their respective shares and it seems to me that on the pleadings it was open to the trial Court to allow mesne profits to all the sharers. The appellant has acquiesced in this decree in the lower appellate Court. I do not see any reason to disallow the mesne profits which have been allowed by the trial Court.
44. The result is that all the contentions in support of the appeal fail and that the decree of the lower appellate Court is affirmed with costs.
45. I concur both in the Conclusions and in the reasons of my learned colleague.