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Huchrao Timmaji Vs. Bhimrao Gururao Deshpande - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberJoint Appeal Nos. 327 and 395 of 1914
Judge
Reported inAIR1917Bom10(2); (1918)20BOMLR161
AppellantHuchrao Timmaji
RespondentBhimrao Gururao Deshpande
Excerpt:
.....by an adult brother on behalf of joint family consisting of minor co-parceners-suit to recover arrears-cash allowance.;under hindu law adoption must be presumed to be in the ordinary (levala) form, except where there is an express agreement to the effects t hat the adoption is in the dryamuhyayana form.;laxmipatirao v. venkatesh (1916) i.l.r. 41 bom. 315 : 19 bom l.r. 23 followed.;where plaintiffs are jointly interested in a cash allowance, they can sue to recover arrears for three years only even though one of them is a minor at the date of the suit.;ganpat v. sheshgiri 1904 6 bom l.r. 647 distinguished. - - it is clearly stated by the lower court that there is no evidence of any such stipulation. it is urged in support of the view taken by the lower appellate court that the..........form. the trial court found that he was adopted in the simple form and not in the dvyamushyayana form. the appellate court, however, came to the conclusion that he must be presumed to be the dvyamushyayana son of bhimrao and kattapa. the learned district judge, however, has pointed out that there is no evidence of any stipulation that gururao was to be treated as the son of both fathers made at the time of the adoption; but he relied upon a certain observation in sarkar's hindu law and the case of krishna v. paramshri i.l.r. (1901) bom. 537 : 3 bom. l.r. 73 cited by the learned author in suppport of his observation. this observation and the case referred to by the lower appellate court were considered in the case of laxmipatirao v. venkatesh i.l.r. (1916) bom. 315 : 19 bom. l.r. 23 and.....
Judgment:

Shah, J.

1. The first point urged in support of these appeals relates to the share of the plaintiffs in the cash allowance in dispute. The plaintiffs contend that they are entitled to three-fourths of the whole allowance and the defendants contend that the plaintiffs are entitled only to one-half. This point entirely depends upon the question whether the plaintiffs' father Gururao was adopted by Bhimrao in the dvyamushyayana form or in the ordinary (i.e. kevala) form. The trial Court found that he was adopted in the simple form and not in the dvyamushyayana form. The appellate Court, however, came to the conclusion that he must be presumed to be the dvyamushyayana son of Bhimrao and Kattapa. The learned District Judge, however, has pointed out that there is no evidence of any stipulation that Gururao was to be treated as the son of both fathers made at the time of the adoption; but he relied upon a certain observation in Sarkar's Hindu Law and the case of Krishna v. Paramshri I.L.R. (1901) Bom. 537 : 3 Bom. L.R. 73 cited by the learned author in suppport of his observation. This observation and the case referred to by the lower appellate Court were considered in the case of Laxmipatirao v. Venkatesh I.L.R. (1916) Bom. 315 : 19 Bom. L.R. 23 and for the reasons given there we are of opinion that in the absence of any express agreement to the effect that the adoption was to be in the dvyamushyayana form it must be presumed to be an ordinary adoption. It is clearly stated by the lower Court that there is no evidence of any such stipulation. It is urged in support of the view taken by the lower appellate Court that the property has been enjoyed in a manner which would show that Gururao was treated as a dvyamushyayana son. Thers is no evidence, however, to that effect; and it is not denied that the allowance in question has never been divided before on the footing of Gururao being a dvyamushyayana son. The lower appellate Court has proceeded on a certain admission supposed to have been made by the defendant No. 1 (Exh. 105). But the statement of the defendant is clear that the property has been enjoyed half and half. In any case it is sufficient that there is no evidence whatever of the adoption of Gururao having been made in the dvyamushyayana form. The conclusion of the lower appellate Court on this point cannot be accepted.

2. The result is that the plaintiffs are entitled only to a half share in the cash allowance.

3. The second point relates to the arrears of the allowance. The plaintiffs claim arrears for six years and the defendants contend that the arrears for three years only should be allowed. Both the lower Courts have allowed arrears for six years. It is clear that the plaintiffs were jointly entitled to sue and that plaintiff No. 1 was in a position to give a discharge on behalf of himself as well as his minor brother plaintiff No. 2 within the meaning of Section 7 of the Indian Limitation Act. The minority of plaintiff No. 2, therefore, cannot help the plaintiffs. Mr. Kelkar has not been able to cite any authority in support of the view that an elder brother, who is in the position of a manager of a joint Hindu family, cannot give a valid discharge without the concurrence of his minor brother, who is joint with him in interest. The case of Ganpat v. Sheshgiri (1904) 6 Bom. L.R. 647 referred to by the lower Courts is a case of joint decree-holders, which stands on a somewhat different footing. It follows that the plaintiffs are entitled to arrears for three years only.

4. The result, therefore, is that the decree of the lower appellate Court is reversed and that of the trial Court restored subject to the modification that the defendants are to pay Rs. 243 instead of Rs. 486 as arrears of cash allowance.

5. The parties to bear their own costs throughout.


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