1. This is plaintiff's appeal.
2. The following genealogical tree will be helpful in understanding the questions involved in this case:
GOVINDRAO = window, Sakhu Bhagirthibai
(d.on 10-3-24) (d.on 3-9-34)
Bapurao= window Tulsi Anusaya = husband, Bapurao
| (d. on 3-9-44) (Deft. 1)
Ganeshrao (Plff.) |
(Adopted by Tulshi to her -----------------------
husband Bapurao on 7-7-46) | |
(Deft 2) (Deft. 3)
3. Facts which are not in dispute in brief are. Bapurao predeceased Govindrao. Govind-rao died on 10-3-1924 leaving behind his widow Sakhu, daughter Anusaya and agricultural fields NOS. 4.20/2. 47/2, 69/1, 19 and 10, situated at village Gangaon, and field No. 20/1, situated at village Sakur. He also left behind certain house properties which are now in possession of the 4th and 5th and 6th defendants but we are not concerned therewith in this appeal. On the death of Govindrao, his widow Sakhu succeeded to the said property. Sakhu, during her life time, gifted fields Nos. 19 and 20/2 of Tillage Gangaon to the 6th defendant and later in 1934 the 6th defendant mortgaged field No. 19 with the 7th defendant, who, prior to the date of the suit, had obtained a preliminary decree for foreclosure against the 6th defendant. Sakhu also, during her life time, gave field No. 10 of Gangaon to Tulshi, This field is still in possession of Tulshl and is not the subject-matter of the appeal. On the death of Sakhu on 3-9-1934 her daughter Anusava succeeded and came in possession of the remeining estate of Govindrao, viz., fields Nos. 4. 47/2 end 69/1 of village Gangaon and field No 20/1- of village Sabur During her life time fields Nos. 21 and 23, situated at Tillage Gangaonwere acquired in her name. She, by her will dated 14-8-1944, bequeathed these 2 fields to her husband Bapurao, the first defendant, and the remaining 4 fields inherited by her from Govindrao, to her 2 daughters Bungi and Bibi, defendants 2 and 3. Thus, on the death of Anusaya on 3-9-1944 Bungi and Bibi succeeded to the fields Nos. 4, 47/2, 69/1 and 20/1 and Bapurao succeeded to the fields Nos. 21 and 25 under the will of Anusaya, and they are since then in possession of that property. Nearly 2 years after the death of Anusaya, Tulshi adopted plaintiff Ganeshrao as a son to her deceased husband Bapurao on 7-7-1946. The plaintiff is Claiming possession of the aforesaid property on the strength of his adoption.
4. it is also now not in dispute before us that the parties are governed by Bombay School of Law. The plaintiff's case is that his adoptive father Bapurao and Govindrao constituted a Hindu joint family owning the aforesaid property. On the death of Govindrao Sakhu succeeded to the property. The alienations made by her of fields Nos. 19 and 20/2, which were not supported by legal necessity, are not binding on him. On Sakhu's death, Anusaya obtained possessionof the remaining property and during her life she made accretions to the joint family property from the funds and income of the property left in her hands. Field No. 25 was purchased from the sale proceeds of gold of the joint family which came in her hands, and field No. 21 was purchased by her out of the income of the joint family property which came into her possession. The possession of these 2 fields is claimed on the ground that, they are accretions to the alleged joint family property. The plaintiff, being the adopted son of Bapurao, son of Govindrao, is entitled to the possession of the whole property left behind by Govindrao, the adoption having retrospective effect as from the date of his father's death.
5. Defendants 1 to 3 inter alia pleaded that the property left behind by Govindrao was his exclusive property and was not the coparcenary property of Govindrao and his predeceased son Bapurao. The plaintiff, therefore, had no right in the said property. On the death of Govindrao his widow Sakhu succeeded to the property and on her death Govindrao's daughter Anusaya succeeded to the property as an absolute and exclusive owner thereof, and she was in enjoyment of the property till her death. She executed a will on 14-8-1944 by virtue of which she gave fields Nos. 21 and 23 to her husband, defendant No. 1, and fields Nos. 4, 47/2, 69/1 and 20/1 to her two daughters, defendants 2 and 3. In fact, fields Nos. 21 and 23 were purchased from the funds of defendant No. 1 nominally in the name of Anusaya and he was really the owner of the said property. The adoption of the plaintiff, even if proved, cannot relate back to the date of the death of his adoptive father for purposes of enforcing the alleged right of in. heritance on the facts and circumstances of the case. The right arose only at the time of the adoption but prior to that the title of the defendants has been perfected by adverse possession Inasmuch as the said property was the Keif-acquired property of Govindrao and was not the coparcenary property in which his son Bapurao could claim any interest by birth.
6. The trial Court found that field No. 21 only was purchased out of the income of the property inherited by Anusaya from Sakhu and Govindrao, while field No. 23 was purchased by the first defendant benami in the name of his wife Anusaya. The property left behind by Govindrao was his self-acquired property and his son Bapurao hart no share therein. He, therefore, had no right to divest the property in the hands of the defendants. The trial Court further held that Anusaya had validly bequeathed the property as pleaded by defendants 1 to 3. On these findings, it held that even if the property had been a coparcenary property of Govindrao and Bapurao, the plaintiff could not obtain possession of the property in possession of defendants 1 to 3 as thp bequest made hy Anusaya was binding on him. As regards the property in possession of 6th and 7th defendants, the trial Court hold that had the property been a coparcenary property, the plaint iff could have obtained possession of fields Nos. 19 and 20/2 in possession of the 6th and 7th defendants, but as these fields were the exclusive properties of Govindrao, the plaintiff could not lav his hands thereon. Trip trial Court, in the result, dismissed the plaintiff's suit. Hence this appeal.
7. THE Plaintiff challenged all the adverse findings of the trial Court. It is urged that thetrial Court ought to have given an opportunity to the plaintiff to examine Tulshi as his witness and ought to have admitted in evidence the certified-copies of purchase in respect of 2 fields which the plaintiff wanted to tender in evidence in support of his plea that the property left behind by Govindrao was a coparcenary property. It is also urged, that the rule laid down in Anant Bhikappa v. Shankar Ramchandra , that the adoption relates back to the date of the death of the adoptive lather is attracted to the facts of the present case. That rule' is modified by the decision of the Supreme Court in Shrinivas Krishrtarao V. Narayan Devji : 1SCR1 , only to the extent that when the question relates to the property inherited from the collaterals it has no application. The decision of the Supreme Court, therefore, is not in the way of the plaintiff in obtaining possession of the property.
8. in our opinion, none of these contentions has any force. In para 13 of the judgment, the trial Court has given good reasons for rejecting the documents, viz. purchase of two fields, sought to be tendered in evidence and for refusing the plaintiff's request for an opportunity to examine Tulshi.
9. We, however, in order to avoid any prejudice to the plaintiff proceed to examine the case on the basis that the property left behind by Govindrao was the coparcenary property of Govindrao and his predeceased son Bapurao, the adoptive father of the plaintiff. The recent Pull Bench decision of this Court reported in Ram-chandra v. Balaji, : AIR1955Bom291 (C), is a complete answer to the other contention raised on behalf of the plaintiff. The decision in Anant Bhik-appa v. Shankar Ramchandra (A) (Supra) and the decision of the Supreme Court in Shrinivas Krishnarao v. Narayan Devji (B), (Supra) were considered in that case. The facts of that case were that Balaji and Ramchandra were two separated brothers. Baiaji had predeceased Ramchandra. Ramchandra died on 10-10-1903 leaving behind his widow Tarabai who also died shortly after him On 19-10-1903. Ramchandra had a son by name Hanumant who had predeceased both his parents and had left behind a widow by name Sitabai. Balaji had a son named Dattu. who died on 20-l-191 i, and Balaji. the defendant, was the adopted son of Dattu. Sitabai adopted the plaintiff as a son to her husband on 21-1-1945. On the strength of his adoption, the plaintiff filed a suit against the dei'endant Balaji for recovery of the property of Kamchandra which had gone to Dattu on the death of Tarabai and which was in the hands of thp defendant in his capacity as the adopted son of Dattu on Dattu's death. The Pull Bench negatived the claim of the plaintiff and ruled that the legal fiction contemplated in thp decision in Anant Bhikappa Patil V. Shankar Ramchandra pat.il (A) (supra) that the adopted son would be deemed to be in existence on the date of the death of his adoptive father cannot be extended to s case of an adoption in the family of a sole surviving coparcener or the last male holder if the oroperty of the sole surviving coparcener has on his death devolved on his heir by inheritance on his death it has vested in his own heir prior to the date of adoption. This decision is binding on us.
10. in the instant case, it will be seen that the last surviving coparcener or male holder was Govindrao and after the death of the limited owner, viz. his widow Sakhu. the property left behind by Govindrao had vested in his daughterAnusaya. The family being governed by Bombay School of Law, Anusaya had become an absolute owner o the property subject to defeasance in the event of potential mother Tulsi adopting a son into the family of Govindrao. On Anusaya's death on 3-9-1944, the property vested in her husband and two daughters under her will. This had happened prior to the date of adoption. The plaintiff, therefore, is not entitled to divest the property which now has vested not in the heir of Govindrao but in the heirs of Anusaya.
11. Further, in considering the arguments advanced on behalf of the appellant before the Pull Bench, it has been observed that even if Dattu had made gift or willed away the property which he had inherited from Ramchandra, both the gift and the testamentary disposition would have been binding upon the plaintiff, in the instance case also, at any rate, there is a valid testamentary disposition by Anusaya in respect of fields Nos. 21, 23, 4, 20/1, 47/2 and 69/1. And the bequest had taken effect prior to the date of adoption. This testamentary disposition is binding on the plaintiff. -
12. AS regards the fields Nos. 18 and 20/2, no doubt, Anusaya had not succeeded to these fields as Sakhu during her life time had alienated them. True, these alienations were not supported by any legal necessity but this by itself does not mean that the alienations were altogether void; they were voidable at the instance of the next reversioner of Govindrao on the death of his widow Sakhu. The right to challenge the alienations vested in Anusaya as a next reversionary heir and on her death it vested in her legal heirs. On the reasoning of the aforesaid decision of the Full Bench of this Court, the plaintiff also cannot divest the legal heirs of Anusaya of this right on the strength of his adoption. In this view of the matter, the plaintiff is not entitled to obtain any relief claimed by him.
13. in the result, this appeal fails and is dismissed with costs.
14. Appeal dismissed.