1. One Chanbasappa Sangappa Deshmukh, a wealthy inamdar, was a resident of Kesapur in the Muddebhihal taluka of the Bijapur District, In respect of a Deshmukh Vatan which is known as 'Talikote Paraganna Vatan' he was owner of two entire villages of Kesapur and Hagargund. He was also owner of lands known as 'Chavrat lands' in 43 villages in different taluks of the district.
He was also the holder of a cash allowanceof Rs. 481/- which was received from differenttaluka treasuries. Besides these properties, hewas owner of the immoveable property consistingof Goudki (Patilki) lands, Government lands, Devasthan lands, wadas, houses and open sites. Likewise, he was owner of considerable moveable property. All this property was in his possession and enjoyment until his death in 1944.
Chanbasappa was a much married man, having had no fewer than six wives. He died on 8-1-1944, sonless, leaving him surviving three widows, Nagamma, Guramma and Venkamma and two widowed daughters, Shivalingamma and Neelamma, children of Chanbasappa from a predeceased wife of his. Neelamma, one of the two widowed daughters, lived with Chanbasappa. On 30-1-1944 Nagamma, the senior widow, took Melappa, her sister's son, in adoption as a son to her deceased husband.
Nagamma had been married in 1926 and Chanbasappa had executed in her favour an authority to adopt, in 1927. It appears that the plaintiff i.e. Nagamma, Guramma and Venkamma lived together in the house or wada after the death of Chanbasappa. It seems that in about April or May 1944 Venkamma left Kesapur and went to Ingalgi to reside with her parents.
It is the case of defendant 2 that she was pregnant when her husband died and she gave birth to a male child on 4-10-1944 and the male child is defendant 4 in the suit.
2. Prior to his death, Chanbasappa had effected certain transfers. On 4-1-1944 he executed a deed conveying to defendant 1 property comprised therein. On the same day he executed another deed in favour of defendant 2 conveying to her, property comprised in that deed. On the same day he executed in favour of defendant 6 property comprised in that document. Similar deeds were executed by him in favour of defendants 7 and 8.
3. On 1-2-1944 the plaintiff applied to the Collector of Bijapur to effect mutation in favour of defendant 3. On 10-2-1944 defendant 3 made a similar application to the Collector of Bijapur. On 17-6-1944 defendant 2 made an application to the Collector, disputing the validity of defendant 3's adoption and stating that since she had been pregnant at the time of her husband's death, proceedings in the applications made by the plaintiff and defendant 3 should be stayed.
On 13-7-1944 defendant 2 made another application asking that mutation should be postponed till she was delivered of a child and on 19-10-1944 defendant 2 applied to the Collector, stating that she had given birth to a male child on 4-10-1944 and that the name of the child viz. Sangappa should be mutated in the Government record.
The Collector then made an enquiry and on 8-9-1946 he made an order directing that the name of Sangappa i.e. defendant 4 minor by his guardian, Venkamma should be entered as entitled to four-fifths of the partible estate and that the name of the adopted son Mellappa i.e. defendant 3 should be entered as entitled to one-fifth share of the estate.
He further directed that In respect of the impartible property the name of Sangappa by his guardian mother Venkamma should be entered as entitled to it as heir.
4. On 9-12-1946 the plaintiff filed this suit to recover, by partition, possession of her one-sixth share in the suit property. In the plaint the plaintiff stated that her husband had given her authority to adopt and in accordance with that authority she had adopted defendant 3 on 30-1-1944 as a son to her deceased husband.
It was averred that by virtue of the adoption of defendant 3, defendant 3 became the heir of deceased Chanbasappa as if he was his 'Auras' son and he had become owner of Chanbasappa's property. In the plaint the plaintiff further alleged that the plaintiff had come to know that after defendant 2 left the village of Kesapur and went to live in the village of Ingalgi in the Hungund taluka defendant 2 was declaring falsely that she had been pregnant.
In the plaint it was stated that defendant 2 was not pregnant and there was not even a likelihood of her becoming pregnant by Chanbasappa. The plaint went on to recite that Chanbasappa was an old man of 75-76 years of age, suffering from kidney trouble, passing pus through the urine and that he had accordingly lost virility and had not even enough strength left in him to have sexual intercourse with his wives.
The plaintiff accordingly asserted that defendant 2 when she went to the village of Ingalgi pretended to have given birth to defendant 4 on 4-10-1944, but defendant 4 was not born of the womb of defendant 2. It was also stated that if at all defendant 2 had given birth to defendant 4, he was born of adulterous sexual intercourse and he was not the legitimate son of Chanbasappa.
5. The plaintiff's claim was resisted by defendants 1, 2 and 4. In the written statement they stated that defendant 4 was born to defendant 2 and that defendant 4 was the legitimate offspring of Chanbasappa and defendant 2. In the written statement it was stated that Chanbasappa enjoyed normal health and that he had sufficient strength to have sexual intercourse with his wives.
It was also stated that the plaintiff had been prohibited by her husband from adopting any person as a son to her deceased husband and that the adoption, assuming that it had taken place, was invalid on the ground that defendant 2 was pregnant and, therefore, the plaintiff could not make a valid adoption of defendant 3. Defendant 3, the adopted son, supported the plaintiff. Defendant 5 in his written statement relied upon a deed of gift executed in favour of defendant 2 and he stated that the property was to go to him after the death of defendant 2.
Defendant 5, who is the son of defendant 5, also relied upon a deed of gift executed in his favour. Similar contentions were made by defendants 7 and 8. The alienees contended that the alienations were made by deceased Chanbasappa voluntarily and that they were not the result of any pressure put upon deceased Chanbasappa.
6. The learned trial Judge raised several issues and his findings were as follows: He held that the factum of defendant 3's adoption was proved, but it was invalid. He held that defendant 4 was born to defendant 2. He further held that Chanbasappa Deshmukh was ill from 21-12-1943 and that his illness did not render sexual intercourse impossible before 21-12-1943.
He further held that the deeds executed by Chanbasappa on 4-1-1944 in favour of defendants 2, 5, 6, 7 and 8 were not fraudulently passed as alleged in the plaint. Upon these findings, he passed in favour of the plaintiff a decree as set out in the order.
7. From the decree made in the suit defendant 3 and the plaintiff have come up in appeal.
8. In support of the appeal Mr. Purushottam for the appellants has addressed a most elaborate and lengthy argument, and before I deal with the evidence in the case, it would be con-venient, I think, to mention the questions which arise for decision in this appeal. The first question is whether the adoption of defendant 3 is proved.
The next question is whether his adoption is valid, but the principal question which Mr. Purushottam has argued in support of the appeal is that defendant 4 was not the natural born son of Chanbasappa from defendant 2. It is also argued that the alienations which were effected by Chanbasappa on 4-1-1944 in favour of defendants 2, 5, 6, 7 and 8 were not binding upon the plaintiff and defendant 3, and the remaining question argued is one as regards the shares of the parties in relation to the suit property.
9. The question about the factum of adoption does not present any difficulty and the learned advocates who appear for the respondents have not challenged defendant 3's adoption. Indeed, the factum of adoption of defendant 3 cannot be disputed since there is abundant evidence in the case to show that there was an adoption made by the plaintiff on 30-1-1944 of defendant 3 as a son to her deceased husband. It will however, be convenient to refer briefly to that evidence. (His Lordship referred to the evidence and concluded:) We hold, therefore, that the factum of defendant 3's adoption is amply proved in this case.
10. The next question is whether the adoption of defendant 3 is valid. In considering this question, I will assume for a moment that defendant 4 is the natural son of Chanbasappa from defendant 2. The challenge to the validity of adoption is based upon the ground that inasmuch as defendant 2 was pregnant at the date when defendant 3 was adopted, his adoption is not valid.
In other words, the contention is that where there is a son in the womb, then a widow cannot make a valid adoption. In this connection, it will be convenient first to refer to a statement in Mayne's Hindu Law and Usage. At page 260 of Mayne on Hindu Law and Usage, Edn. 10, Section 192, this is what the learned author stated:
'Where after an adoption a legitimate son is born to the adopter, the adopted son does not, amongst the twice-born classes, share equally with the 'Aurasa' son but is entitled to a lesser share on a partition of joint family property as well during his father's lifetime as after his death.'
Section 192 deals, no doubt, with the share of an adopted son after a natural son is born to the adopter. But there is nothing to suggest that the adoption would be invalid. Similarly, in Mulla's Principles of Hindu Law, Edn. 11, Section 497, p. 596, this is what the learned author stated:
'Where a son is born after adoption to the adoptive father, the adopted son does not, on a partition between him and the after-born natural son, share equally with him as he would have done if he were a natural son, but he takes in the Bombay and Madras States, one-fifth of the estate.'
This also shows that there is no suggestion that the adoption of a son to an adopter before the birth of a natural born son is invalid. Mr. Purushottam who appears for the appellants relies strongly upon a decision of this Court in --Hanmant Ramchandra v. Bhimacharya (1837) 12 Bom 105 (A). In that case the facts were these. One Ramchandra died in 1882, leaving him surviving his widow who was then pregnant, and the defendant, whom he had adopted three or four days before his death.
By his will Ramchandra directed that, in the event of a son being born to him after his death, his property should be divided equally between such son and the defendant, but otherwise all his property was to go to the defendant. Shortly after Ramchandra's death the plaintiff was born. The suit was then brought by the guardian of the plaintiff, who was still a minor, to recover possession of the property from the defendant.
It was contended for the plaintiff that the defendant's adoption was invalid, having taken place during the pregnancy of Ramchandra's wife. Upon these facts this Court held that the adoption of a son by a childless Hindu was valid, although at the time of adoption his wife was pregnant and that the possibility that a son may afterwards be born to him, did not invalidate the adoption.
It is true that in 'Hanmant Ramchandra'a case (A) the adoption was made by Ramchandra i.e. the owner of the property and not by his widow. But, in our opinion, that makes no difference to the principle. It is to be remembered that an adoption is made for a religious purpose and cases have consistently taken the view that the object of an adoption is religious and not secular.
Now, the decision in 'Hanmant Ramchandra's case (A)' is based upon a decision of the Madras High Court reported in -- 'Nagabhushanam v. Seshammagaru' 3 Mad 180 (B). In that case the facts were these. The plaintiff in the suit, as the adopted son of one Venkata Reddi, sought to recover possession of a village from the defendant.
The defendant, in answer, contended that the plaintiff's adoption was invalid and the Madras High Court held that 'an adoption by a Hindu with knowledge of his wife's pregnancy is not invalid.' At page 182 of the report this is what the Madras High Court stated:
'If by the analogy of these instances the suspension of the exercise of the power during the pregnancy of the wife is supported, the validity of the adoption can hardly be made to be dependent on knowledge or ignorance of the fact of pregnancy.
But unless the condition of ignorance of thefact of pregnancy be imported, for which thereis no authority, the validity of a rite, second tonone in importance, must, in many cases, remainfor a season in uncertainty. Again, the limitationon the power of adoption for which the respondent contends can only be supported by holdingthat the term 'destitute of sons' includes sonsyet in the womb; but inasmuch as the term 'destitute of sons' includes son's son and grandson,it follows that, if the expression includes alsothose who are in the womb, the exercise of thepower must be suspended not only during thepregnancy of a wife, but during the pregnancy ofa son's wife or grandson's wife, when the son orgrandson has died leaving his wife pregnant.'Then the next case to be referred to is -- 'Giriapa v. Ningapa' 17 Bom 100 (C). 'HanmantRamchandra's case (A)' was decided by a Benchcomposed of Sir Charles Sargent and NanabhaiHaridas J. The case in 17 Bom 100 (C) was decided by a Bench composed of Sir Charles Sargent and Telang J. It is to be noted that 'Hanmant Ramchandra's case (A)' has not been referred to in the later case of 'Giriapa v. Ningapa (C).'
But 'Giriapa's case (C)' is important from the point of view of the share which is to be given to an adopted son and I will have to referto the latter case in another connection hereafter. The next case is -- 'Tukaram Mahadu v. Ramchandra Mahadu' AIR 1925 Bom 425 (D). That was also a case which was principally concerned with the question of the share to be given to an adopted son and the case in 17 Bom 100 (C) has been followed in that case.
I will have to refer to that case in another connection, but these two cases viz. 'Giriapa v. Ningapa (C)' and 'Tukaram Mahadu v. Ramchandra Mahadu (D)' go to show that there has been never any doubt or dispute about the validity of adoption. It is, therefore, legitimate to hold that so far as the Bombay High Court is concerned, cases have consistently taken the view that even if a wife is pregnant at the date of adoption, an adoption made by the husband is not invalid.
The last case to be mentioned is -- 'Sahebgouda v. Shiddangouda' AIR 1939 Bom 166 (E) and it is to be noted that 'Giriapa's case (C)' has been referred to at p. 167 of the report. It is also to be noted that the question about the validity of adoption was never in issue in that case. The only question was about the share to be given to an adopted son in the presence of a natural born son.
Mr. Desai for respondents 2 and 3 contends that there is a point of distinction between 'Hanmant Ramchandra's case (A)' and the present case. He says that so far as 'Hanmant Ramchandra's case (A)' is concerned, that was a case where Ramchandra himself made the adoption, whereas in this case the adoption was made by the widow of Chanbasappa. But that distinction is, in our view, not material. According to him the more important point of distinction is this.
He says that the question about the validity of adoption is to be considered not with reference to the date when the son is actually born but with reference to the date of his conception and he argues that as in this case on 30-1-1944 defendant 2 was pregnant, the adoption made by the plaintiff of defendant 3 on 30-1-1944 was invalid.
In this connection he points out that a natural born son has certain rights given to him as regards partition of the family property and as regards alienations made by his father during the time when he was conceived, and he argues that if in relation to these subjects a natural born son has certain rights, there is no reason as to why a natural born son should not also object to the adoption as though made in his presence. One answer to this contention is that an adoption is to be considered not from the point of view of its secular character.
An adoption is to be considered from the point of view of a religious purpose. An adoption, when made, involves the status of an adopted son. The other answer is that in considering the validity of adoption one must see the position as it existed at the date of adoption. It is argued that so long as the wife is pregnant, the power to adopt is suspended and the power to adopt is revived as soon as the wife who is pregnant gives birth to a female child.
Now, it has been established by authority that, in the absence of a prohibition from the husband, the widow has an inherent right to adopt. It is also established by authority that the adoption is to be made for a religious purpose. Bearing these two fundamental ideas in mind, there is no difficulty in holding that the validity of adoption has to be considered as on the date of adoption.
It is also to be noted that a wife may be pregnant, but one does not know whether the woman will give birth to a male child or to a female child. If she gives birth to a female child, the adoption will be valid. If, on the other hand, the woman gives birth to a male child, the adoption will be invalid. In our opinion, the question about the validity of adoption should not be made to depend upon a future event which is not a certain event.
It is not a certain event in the sense that a child will not be born, but it is uncertain because nobody knows whether a male child or a female child will be born and also because there may be a still-born child, and we, therefore, take the view that the validity of adoption must be considered as at the date of adoption and the validity cannot be considered from the point of view of what may happen in future.
On these grounds, we think, differing from the learned Judge below, that the adoption of defendant 3 is valid. In this connection Mr. Desai pointed out a case reported in -- 'Bala Anna v Akubai' : AIR1926Bom584 (P). There the fact were that there were two brothers who formed a joint Hindu family. One of the brothers died leaving his widow pregnant. Then the other brother died leaving a widow.
The widow of the latter adopted the plaintiff and after the adoption the widow of the first brother gave birth to a son. A suit was filed by the plaintiff to recover a half share of the property left by the two brothers, and it was held that the son was in law a coparcener from the date of his conception, and that the adoption of the plaintiff, while the natural son was in the womb, without the authority of the husband was not valid. In this connection Mr. Desai relied upon a passage which occurs at pp. 534-585 of the report.
But the answer to the contention raised by Mr. Desai is this. Whatever rights a natural born son may have with respect to partition and alienations, so far as the adoption is concerned, that question has to be considered from a different point of view because the adoption rests for its validity upon a religious purpose and, therefore, such an adoption constitutes an exception to the general rule viz. that where there is a natural born son, an adoption cannot be made as a valid adoption. We think, therefore, that the adoption of defendant 3 is a valid adoption.
11. The most disputed question which then arises is whether defendant 4 is a natural son of Chanbasappa from defendant 2. In this connection it is well to set forth certain facts. Chanbasappa had in his lifetime married no less than six women. In 1944 Chanbasappa was about 68 years of age. In 1940 and 1941 Chanbasappa had been taken ill, but there is no evidence to show that between 1941 and December of 1943 Chanbasappa was at any time ill.
It is also to be remembered that defendant 2 was in 1943 about 23 years of age. She was then quite young. Further, Chanbasappa had a daughter from defendant 1 in 1942. That daughter was Shivalingamma who was born on 4-3-1942. There is a dispute between the plaintiff and defendants 1 and 2 about the age of Chanbasappa.
According to the plaintiff, Chanbasappa was about 76 or 77 years of age, but if one has regard to the several documents which were executed by Chanbasappa from 1927 right up to 1943, it will appear that Chanbasappa was about 66 years of age in 1944 when he died. The result, therefore, is that although Chanbasappa was oldin the sense of being in the 66th year in 1944, he had a child only in the year 1942 i.e. just two years prior to his death and that defendant 2 was quite young.
Now, the challenge to the legitimacy of defendant 4 has been made upon several grounds. The principal ground, according to Mr. Purushottam, is that Chanbasappa was not then in a position to procreate a child and this contention is based upon the illness from which Chanbasappa was suffering towards the end of 1943.
At the outset, it may be observed that there is no evidence that Chanbasappa was ill at any time prior to December 1943. It is true that he had gone to Bijapur and Hyderabad in 1940 and 1941 to receive medical treatment. But then there is an interval of two years between 1941 and 1943 and whatever evidence is to be found as regards the Illness of Chanbasappa, that evidence is entirely confined to and from December of 1943. I will consider the question of the illness of Chanbasappa first. (His Lordship discussed the evidence and proceeded :)
12-13. Mr. Purushottam for the appellants contends that Chanbasappa was taken ill long before 21-12-1943. He says that he must have been taken ill some time before 8-12-1943 and in this connection he relies upon a letter written by Venkaji, a clerk of the family, to defendant 3. That letter has become the subject of controversy between the parties.
The letter is dated 8-12-1943. This letter was not produced by defendant 3. The letter was put to Venkaji in the course of his evidence. Venkaji's evidence was that Chanbasappa was ill only for 18 days in December and this letter was put to Venkaji to contradict his testimony. It will be convenient first to refer to that letter. It reads as follows :
'Thousand salutations. The master (Dhani) was ill and had to undergo much difficulty. At present he seems to be a little better. If your health is all right please come and meet (him). If your health is all right you send information to me to Muddebihal through the motor people. I will be at Muddebihal alone in the office of the pleader, Navadagi.'
It is to be noted that defendant 3 has not made even the faintest suggestion regarding the receipt of this letter in the course of his evidence. Defendant 3, when asked as to when he came to know about Chanbasappa's illness, stated that he came to know of the last serious illness of Chanbasappa some 20 or 22 days before his death. Chanbasappa died on 8-1-1944 and 20 or 22 days would take one to about 18-12-1943, so that upon this evidence it is clear that defendant 3 had not in his mind this letter of 8-12-1943.
It was to contradict the evidence of Venkaji that this letter was put to him. Mr. Purushottam has argued as 'though this letter of 8-12-1943 was substantive evidence in the case. But, in our view, that argument is wrong. In the first place, according to Order 13, Rule 1, Civil P.C., the parties are required to produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on Which they intend to rely.
Then under Rule 2 of Order 13 documentary evidence in the possession or power of any party which should have been, but has not been produced will not be allowed to be received at any subsequent stage of the proceedings unless good cause is shown. If, therefore, defendant 3 wanted to rely upon this piece of evidence, it was up to him to produce this letter, in the first instance,at the initial stage or to produce it at a subsequent stage upon good cause being shown.
When this letter was put to Venkaji in order to contradict the witness' testimony, that was by reason of Section 145, Evidence Act and it is obvious that the use of that letter was for a limited purpose viz., for contradicting the witness' testimony. In other words, the position was that Venkaji wanted to establish by reference to this letter that Chanbasappa was ill long before 21st December 1943. His evidence, in the first instance, was that he was ill for 18 days, suggesting that he was ill either from 18th December or from 21st December.
If, therefore, there was a previous statement of Venkaji which went to show that he was ill long prior to 8-12-1943, obviously the intention was to use the letter for the limited purpose of contradicting the testimony of the witness. In our view, this letter cannot be used as substantive evidence, but it can be used for testing the veracity of Venkaji, and so far as Venkaji is concerned, there will be two rival versions: Was Chanbasappa ill either from 18th or 21st December 1943 or was he ill from 8-12-1943 or sometime before it?
Even if the letter is looked at, it only means this that Chanbasappa, was ill for some time and there was some difficulty but that he was improving. If, therefore, on 8-12-1943 Chanbasappa was showing improvement, that only means that Chanbasappa was not ill after 8-12-1943, though ill prior to that date, and there is no evidence in this case that between 8-12-1943 and 18 or 21-12-1943 Chanbasappa was in any way seriously ill.
Apart from these considerations, it is I think, legitimate to infer that this letter appears to us to be a suspicious document. The address is written upon the reverse of the letter itself. This letter, according to the evidence in the case, was sent with a messenger, but that messenger has not been called. There is no postal cover and the letter, Ex. 455, is such a type of letter as can be written at any time.
Looking, therefore, at the way in which it was sought to be produced through Venkaji, we think that the letter, Ex. 455, is a suspicious document and if we take that view, we are not going to attach importance to the probative value of that letter. The result, therefore with respect to the evidence of the illness of Chanbasappa is this. Chanbasappa was ill from about 18-12-1943. There is no evidence that he was seriously ill prior to that date. Chanbasappa was suffering from chronic pneumonia, but the nature of the disease was discovered not on 21-12-1943 but on 5-1-1944 when the medical treatment was stopped.
According to Dr. Vaidya, Chanbasappa was in a position to have sexual intercourse prior to 21-12-1943. The opinion of Dr. Ugrankar is based upon the case papers of Dr. Vaidya and if we take the view on Dr. Vaidya's evidence that Chanbasappa was suffering from chronic pneumonia not from 21-12-1943, it would, I think, be fair to hold that Chanbasappa was in a position to have sexual intercourse with his wife prior to 21-12-1943.
The result, therefore, is that Chanbasappa was not ill so as to preclude him from having sexual intercourse with his wife prior to 21-12-1943. In this connection it will be helpful to refer to a Privy Council case reported in -- 'Narendra Nath v. Ram Gobind' 29 Cal 111 (PC) (G). A part of the head-note in that case is as follows:
'The fact that the husband was, during the period within which the child must have been begotten, suffering from a serious illness which terminated fatally shortly afterwards was held, under the circumstances, not sufficient to rebut the presumption'.
There, their Lordships of the Privy Council were considering the effect of Section 112, Evidence Act and they said that merely because a person was suffering from a serious illness, that was not a sufficient reason for holding that the presumption which arose under Section 112 Evidence Act could not be attracted. (His Lordship discussed further evidence and proceeded:)
14-16. But defendant.2 has sought to give the evidence of one Dr. Vispute to show that she had given birth to a child. This evidence has a history of its own. Since the dispute between the parties was as to whether defendant 4 was the natural son of Chanbasappa or was a substituted child, the importance of medical evidence would be absolutely clear,
Therefore, on 8-4-1948 the plaintiff's pleader applied to the Court, asking that the Court should ask defendant 2 to submit to medical examination of an expert and the name of a lady doctor of the J.J. Hospital, Bombay, was suggested. This application was opposed by defendant 2. It was opposed principally upon the ground that nobody would be in a position to take her to Bombay and she apprehended danger and foul play to her life.
This was on 19-4-1948. Then on 19-7-1948 the plaintiff came up with another proposal. The plaintiff applied, asking that defendant 2 should be examined by one Dr. Mrs. S.V. Mahajan, Hubli, and if defendant 2 insisted that she be examined by Dr. Mahajan in the presence of Dr. Vispute, it was suggested that defendant 2 might be ordered to be examined by Dr. Mahajan in the presence of a lady doctor working in the Civil Hospital, Bijapur.
On 30-8-1948 defendant 2 stated to the Court in answer to the application made by defendant 3 that she was not willing to get herself examined. There was, therefore, an insistence on the side of the plaintiff to have defendant 2 examined by a medical practitioner and an equal insistence on the side of defendant 2 not to be so examined.
However, defendant 2 in support of her case relied upon the evidence of Dr. Vispute. Dr. Vispute is a medical practitioner of Bijapur. She is only L.C.P.S., which, I apprehend, is a degree inferior to an M.B.B.S. degree. Her knoweldge does not seem to be extensive. When asked, she stated that she read a book on gynaecology of ten teachers, a text book for her at the examination.
Apparently, she wanted to give evidence as an expert, but as is well known, expert evidence is nearly always a weak type of evidence, much more so in the case of an expert who has not sufficient knowledge on that subject. (His Lordship considered the doctor's certificate and evidence as also other evidence and proceeded:)
19. Mr. Purushottam has, I think, rightly relied upon the period of gestation as affording a sound basis for finding out as to whether a person is legitimate or not. The law, so far as this aspect is concerned, is indicated in Section 112, Evidence Act. That section raises a conclusive presumption under certain circumstances The period of gestation being a period of 280 days, that period is a statutory period, the period commencing on and after the dissolution of the marriage.
in this case the dissolution would take placeon 8-1-1944 when Chanbasappa died, so that the period of 280 days would be computed from 8-1-1944. Here, however, the period of gestation from the date of the last menses of defendant 2 is a period of 307 days, counting the period from 2-12-1943 and here also, if I may say so, with respect, learned arguments have been addressed on the question.
Now, the period of gestation is a varying period and one case has gone so far as to suggest that the period may be a period of 365 days. But I think, the position is accurately summarised by Modi in his Medical Jurisprudence and Toxicology, Edn. 11 p. 302 under the heading 'The Maximum period of Pregnancy'. Various periods have been mentioned by him in that connection from a period of 315 days to a period of about 349 days.
But a fairly accurate basis is indicated in --'Tikam Singh V. Dhan Kunwar' 24 All 445 (H). There, the question was about the legitimacy of a child and the length to which the period of gestation went in that case was as much as 365 days. In that case the Court took the view that the child was not a legitimate child principally for two reasons.
One of them was that during the ten years of married life the woman had no child from her husband and secondly, there was evidence showing that the woman was of immoral character. But there is a striking passage at page 449 where the legal text books then available have been cited and the opinion as expressed was in the following terms:
'Dr. Lyon in his work on Medical Jurisprudence, for India sums up the matter thus:
On the whole, therefore, as regards the question what is the longest period which, in natural human gestation, may intervene between coitus and delivery -- the form which the question under consideration assumes for forensic purposes -- it may be stated that;
(1) it may be regarded as proved that this may be 296 days;
(2) most authorities agree in considering that the interval may be as long as 44 weeks or 308 days; indeed in the 'Gardner Peerage case' several eminent obstericians gave it as their opinion that the interval might extend to, at any rate, 311 days;
(3) some authorities consider that the interval may extend to the forty-sixth week--315 to 323 days'.
This view seems to coincide with the latest medical opinion and I am shown no authority that this medical opinion is not sound. If it is a case of 280 days, it is a clear case falling under Section 112, Evidence Act. Secondly, if the period of gestation is 296 days, then the view is that that period may be regarded as one being above normal and thirdly which is applicable to this case, that most authorities agree that the period may be as long as 308 days.
The present case is within that period and has the support of most authorities. Therefore, the majority of medical opinion is in support of the contention of Mr. Desai. In this case, as I said earlier, there is no evidence that defendant 2 was guilty of any immoral conduct. If one turns to the evidence of defendant 2, she was, it appears, married to Chanbasappa while she was 18. At the date when Chanbasappa died she was about 23. She had, therefore, a married life of about five years.
It is not, therefore, right to characterise that period of five years as a period from which wemust reach the conclusion that defendant 2 was of an age that she could not beget a child. The broad facts established, therefore, are these. So far as Chanbasappa was concerned, he was about 66 years of age. It would not be correct to suggest that that was an age when he would have no child because at the age of 64 he had a child from defendant 1. Defendant 2 was of an age when she too could beget a child.
Although much is made about the illness of Chanbasappa, the evidence is clear that he was having sexual intercourse with defendant 2 in the month of December 1943 and that his illness did not prevent him from having cohabitation with defendant 2 and one may be excused for saying that one would not know as to when exactly defendant 2 was conceived, but the period from 2-12-1943 to 20-12-1943 was a long interval of eighteen days and I have not heard it suggested that that would be a period in which defendant 4 could not be begotten. (His Lordship considered further evidence and concluded:)
20. We, therefore, hold on a consideration of the evidence adduced in the case that defendant 4 is the legitimate child of Chanbasappa from defendant 2.
21. On that footing we have next to consider the question about the shares of the parties, The adoption of defendant 3 is valid, notwithstanding that defendant 4 is the natural son of Chanbasappa from defendant 2. As to the shares, the position vis-a-vis the adopted son and the natural born son is clearly indicated in Mayne's Hindu Law at page 260.
It is unnecessary to refer 'in extenso' to that position because that question is now beyond dispute and is established by authority. On the question of shares, the earliest case is 12 Bom. 105 (A). In that case it was held by this Court that the share of the adopted son was one-fourth, while the share of the natural son was three-fourths.
But in 17 Bom 100 (C) the view taken by this Court was different, viz. that as between an adopted son and a natural son, the adopted son would take a fourth share of the share allotted to the natural son. The view taken in 'Giriapa v. Ningapa (C)' has been accepted as correct in AIR 1925 Bom 425 (D).
But Mr. Purushottam argues that the adopted son is entitled to an equal share with the natural son. In support of this contention there is clearly no authority. If anything, the authority is against him. Then he contended that the adopted son would take one-fourth share and in this connection he relied upon the case in --'Hanmant Ramchandra v. Bhimacharya (A)'.
It must be said that 'Hanmant Ramchandra's case (A)' does support Mr. Purushottam's contention, but the difficulty in the way of Mr. Purushottam is the decision in 'Giriapa v. Ningapa (C)' which has taken the view that a natural son would take four-fifths, while an adopted son would take one-fifth. 'Giriapa v. Ningapa (C)' was decided as long ago as 1892 and we have not been shown any authority subsequent to this decision which has taken a contrary view.
On the contrary, this view has been accepted as correct in AIR 1925 Bom 425 (D) and also accepted as correct in AIR 1939 Bom 166 (E). Both, therefore, on the ground of authority as well as on the ground of 'stare decisis' there is no reason to accept the decision in 12 Bom 105 (A) as giving the adopted son i.e. defendant 3 a fourth share, as claimed by Mr. Purushottam.
Now, the suit is filed by the plaintiff byvirtue of her position under the Hindu Women's Bights to Property Act, 1937. Under that Act the widow takes a share equal to that of her husband. In this case there are three widows, the plaintiff, defendant 1 and defendant 2. As between them they would be entitled to the share of their husband.
To find out the share of the husband, it would be necessary to find out the share of defendant 4 and after ascertaining the share of defendant 4, it would be possible to determine the share of defendant 3. Taking, therefore, a unit of nine, the shares of the parties would be as follows. The plaintiff, defendant 1 and defendant 2, between them, would be entitled to 4/9th share. Defendant 4 would be entitled to the other 4/9th share and since the adopted son i.e. defendant 3 takes a fourth share of the share falling to the natural son, defendant 3 would take 1/9th share.
As there are three widows, the plaintiff would be entitled to 4/27th share, defendant 1 would be entitled to 4/27th share and defendant 2 would be likewise entitled to 4/27th share. These shares will be in consonance with the shares as determined in AIR 1925 Bom 425 (D).
New, under the Indian Registration Act a duty is cast upon the Sub-Registrar to inquire about the execution of documents and unless the Sub-Registrar was satisfied that there was due execution of the documents by Chanbasappa, he would not have ordered registration of the documents, and Mr. Purushottam has fairly -- and if I may say so, very properly -- conceded that so far as the allegation of pressure is concerned, he was not in a position to establish that Chanbasappa was not in a conscious state of mind to execute the documents.
The result, therefore, is that Chanbasappa voluntarily executed these documents in favour of certain parties which I will next mention. The first of these documents is a deed of maintenance in favour of Guramma, viz. defendant 1. The document recites that Guramma was Chanbasappa's wife and it was his duty to maintain herand in order that there may not be any dispute after his death, he gave the properties mentioned in the document for defendant 1's maintenance.
The properties given under this document (Ex. 868) are lands and a house situate at Hagargund and it provides that defendant 1 should enjoy the aforesaid properties during her lifetime and after her death the properties were to go to Chanbasappa's heirs. The next document is a deed of gift (Ex. 369) which is in favour of one Imamsa, (defendant 6) son of defendant 5.
The document recites that Nabisa, who is defendant 5, was brought up by Chanbasappa in his house and he had great affection for him and to that end properties mentioned in the document were gifted away to defendant 6. By the document he made defendant 6 owner of the properties, fully entitled to the same, and defendant 6 and his children should go on making vahivat and enjoying the same as owners. The properties, consisting of Government Revision lands which are given under the document are situate at the village Amargol.
The next document (Ex. 370) is a deed of gift in favour of defendant 7. The document recites that Channappa, who is the donee, was a relation of Chanbasappa, living in his house, for 30 years or more and as a token of love, Chanbasappa gifted away the properties to Channappa. The document recites that Chanbasappa and his heirs should have no right or title to the said properties, adding that defendant 7 and his children should continue the vahivat and enjoy the same from generation to generation.
Then there is a deed of gift (Ex. 371) executed in favour of defendant 8, Neelamma. The document recites that Neelamma was Chanbasappa's daughter, whose husband was dead. It appears that Chanbasappa had previously given to Neelamma other property for her maintenance. By the document the property was conveyed to Neelamma for her life and after her death, the property was to go to defendant 5, adding that, after Chanbasappa's death, his own heirs had no right or title to that property.
Then the remaining transaction is also a deed of maintenance (Ex. 372) executed in favour of defendant 2. The deed comprises two sets of property. A part of the property was to be enjoyed by her during her lifetime and after the death of Venkamma, the property was to go to Chanbasappa's heirs.
Another part of the property was given by the same document and Venkamma was to enjoy the property during her lifetime and after her death, the property was to go to Nabisa, i.e., defendant 5. The document recites that Chanbasappa and his heirs had no right, title and interest in the said property and that Nabisa alone should be the absolute owner.
23. In the plaint filed by the plaintiff the alienations in favour of defendants 2, 5, 6, 7 and 8 have been challenged. Defendants 5 to 8 were originally not made parties to the suit, but by a subsequent application for amendment of the plaint, the alienees were joined as party-defendants and in para 9A of the plaint, the plaintiff alleges that the documents in favour of defendants 2, 5, 6, 7 and 8 arc not binding upon the plaintiff.
The property comprised in the deed in favour of defendant 2 is mentioned in Schedule A1 to the plaint. The property comprised in the deed in favour of defendant 6 is mentioned in Schedule A2 to the plaint. Similarly, the property comprised inthe deed of gift in favour of defendant 7 is mentioned in Schedule A3 to the plaint, while the property comprised in the deed in favour of defendant 8 is mentioned in Schedule A4 to the plaint.
So far as the deed in favour of defendant 1 is concerned, the plaintiff has not specifically averred that that deed also is not binding upon the plaintiff, but the deed in favour of defendant 1, which is Ex. 368, stands upon the same footing as the other deeds. Now, in regard to these deeds Exs. 368 to 372, a distinction has got to be made Because while the deeds, Exs. 368, 371 and 372 purport to be deeds of maintenance, the deeds, Exs. 369 and 370 are deeds of gift.
There is, however, a qualification in regard to the deed, Ex. 372, the qualification being that while the deed, Ex. 372, purports to be a deed of maintenance, there is after the death of defendant 2 a gift over in favour of defendant 5. Now, Mr. Purushottam's contention is that these alienations are not binding upon the plaintiff and upon defendant 3. The position of the plaintiff is the position of a Hindu widow having rights given to her under the Hindu Women's Bights to Property Act to claim a partition and to be allotted to her a share equal to the share of her husband. The plaintiff, as a widow, cannot challenge her husband's alienations.
When the deeds were executed by Chanbasappa on 4-1-1944, he was the absolute owner of the property, save, of course, for the finding which we have now recorded that there was, in existence at that time, defendant 4 who was then in the womb of defendant 2. So far, therefore, as defendant 4 is concerned, he is entitled to challenge the deeds of gift in favour of defendants 6 and 7. The deed of gift in favour of defendant 7 is described as a deed of gift in favour of a relation.
The deed of gift in favour of defendant 6 is a deed in favour of the son of defendant 5, but defendants 4 and 2 do not challenge these alienations. Mr. Purushottam argues that defendant 3 is entitled to challenge these alienations because even if defendant 4 does not challenge them he can challenge them because his share in the family property is affected, Defendant 3 gets a share which is one-fourth of the share to be allotted to defendant 4.
Just as the plaintiff, as a widow, cannot challenge the alienations made by her husband, defendant 3, as an adopted son, also cannot challenge the alienations which have come into existence prior to his adoption which took place on 30-1-1944. The rights of an adopted son arise on the date of his adoption although the status of an adopted boy relates back to the date of the death of the adoptive father.
Bearing in mind the distinction which I have referred to above, it is now necessary to examine the position of these deeds. Chanbasappa, as owner of the property, was entitled to make a provision for the maintenance of defendant 1. Similarly, he was entitled to make a provision for the maintenance of defendant 2.
In our view, neither the plaintiff nor defendant 3 nor defendant 4 can challenge these deeds of maintenance because they are provisions made for the maintenance of the widows, but so far as the two deeds of gift are concerned i.e. the deed of gift, Ex. 369, in favour of defendant 6 and the deed of gift, Ex. 370, in favour of defendant 7, these deeds of gift can be challenged by defendant 4. Similarly, defendant 4 can challenge the gift over in favour of defendant 5 under the document, Ex. 372, in favour of defendant 2.
Under Hindu law a Hindu father has power to make a gift within reasonable limits of ancestral immoveable property but only for pious purposes, but this power is conditioned by the qualification that the alienation must be by an act 'inter vivos', and not by will. This requirement as to deed is satisfied in this case. In the present case the deed of gift in favour of defendant 6 cannot be described as a deed of gift for pious purposes.
It is true that Chanbasappa was interested In defendant 5, being the father of defendant 5, whom Chanbasappa had brought up in his house; nor can the deed of gift in favour of defendant 7 be described as a deed of gift for pious purposes because the deed of gift in favour of defendant 7 is for the purpose of making a provision for a relation who also had grown up in the family of Chanbasappa.
Similar remarks apply to the gift over in favour of defendant 5 under document, Ex. 372, in favour of defendant 2. The position, therefore, is that while defendant 3, as an adopted son, cannot question the deeds of gift, defendant 4 can challenge these deeds of gift because he was in existence when the deeds were executed in favour of these parties. Mr. Datar who appears for defendant 1 says that defendant 4 has not chosen to question these deeds of gift.
That, no doubt, is true, but that does not affect the question about the invalidity of these deeds of gift because defendant 3 is entitled to say that inasmuch as he gets a one-fourth share of the share of defendant 4, he is entitled to object to these alienations because even if those alienations are not challenged by defendant 4; that would affect the share which he ultimately gets in the suit for partition.
The result is that although defendant 3 cannot challenge the deeds, Exs. 368 and 372 in the sense mentioned above, since defendants 1 and 2 are now given a share in the family property, defendants 1 and 2 cannot retain the property under the two deeds, Exs. 368 and 372, and, at the same time, claim a share in the family property. So far as defendant 8 is concerned, there is no doubt that the deed, Ex. 371, purports to be a deed of maintenance in favour of defendant 8.
But whatever may be the form of the document, it is obviously in the nature of a deed of gift in favour of defendant 8. Defendant 8 is the widowed daughter of Chanbasappa and Chanbasappa had no legal obligation to maintain defendant 8 after her marriage. It may be that he had a moral obligation, but if there was no legal obligation, the deed in favour of defendant 8 would be invalid.
If any authority is necessary for this position, that is afforded by a decision of this Court in -- 'Jinnappa Mahadevappa v. Chimmava' : AIR1935Bom324 . In that case Rangnekar J. has held that a Hindu father under the Mitak-shara school of Hindu law, has no right to make a gift even of a small portion of joint family immoveable property in favour of his daughter although it is made on the ground that she looked after him in his old age.
In the present case a reference to the deed in favour of defendant 8, Ex. 371, shows that Chanbasappa had already given her some property for her maintenance. So it is not as if defendant 8 would have no means with which to live. On the contrary, defendant 4 is, in view of our finding, her step-brother and it is up to defendant 4 if he so chooses to permit defendant 8 to stay with him and to maintain her.
Defendant 3 in his written statement has also challenged these alienations. This is a suit for partition. Every defendant is in the position of a plaintiff and even if technically, the plaintiff and defendant 3 are not entitled to challenge these alienations, defendant 3 is entitled to object because of the view which prevails that his share is a one-fourth share of the share to be awarded to defendant 4.
24. Mr. Datar argues that if the property comprised in the deeds, Exs. 368 and 372, is to be brought in the suit and to be made available for partition, there is no reason why the property comprised in the deed, Ex. 347, in favour of the plaintiff should not also be brought into the hotch-pot. One obvious answer to this contention is that the deed in favour of the plaintiff was executed by Chanbasappa in the year 1938,
At that time he had neither the adopted son nor the natural son in existence. This transaction had taken place at a time when Chanbasappa was the owner of the property and he was entitled to make a provision for the maintenance of the plaintiff. This deed cannot, therefore, be challenged either by defendant 1 or by defendant 2 or by defendant 4. Besides, a contention was taken on behalf of defendants 1 and 2 that the property comprised in the document, Ex. 347, should be brought into the hotch-pot.
The Court below has repelled that contention and has disallowed that claim and there is no appeal by defendants 1, 2 and 4 regarding the disallowance of that claim. On this ground also we think that the property comprised in Ex. 347 cannot be brought into the suit. Mr. Purushottam has pointed out that although there is no specific averment as regards the alienation in favour of defendant 1, the property is included in the suit property and has been described in Schedule A attached to the plaint.
We think, therefore, that the property comprised in Ex. 368 should also be part of the property in suit which is liable to partition. Mr. Purushottam says that the property comprised in the document Ex. 368 is not separately shown in the schedule though mentioned in Schedule A to the plaint. He says that he may be permitted to amend the plaint so as to show separately the property conveyed to defendant 1 under the document, Ex. 368. The Court below will permit him to suitably amend the schedule to the plaint so as to show precisely the property comprised in the deed, Ex. 368.
25. What then remains is to record our conclusions. On the question of the factum of adoption of defendant 3, we hold, agreeing with the Court below, that the adoption of defendant 3 has been proved in this case. But we differ from the conclusion of the Court below that the adoption of defendant 3 is not valid. We hold that the adoption of defendant 3 is valid. We confirm the finding of the Court below that defendant 4 is the natural son of Chanbasappa from defendant 2.
Further, we reverse the finding of the Court below as regards the alienations. We hold that the gifts in favour of defendants 5, 6, 7 and 8 are not binding upon defendant 3. We hold also that the deeds of maintenance in favour of defendants 1 and 2 though they are binding upon defendant 3, the property comprised in these deeds should be made available for partition since we are awarding to defendants 1 and 2 a share in the family property.
We reverse the finding of the Court below as regards the shares. We hold that the plaintiff, defendant 1 and defendant 2 are each entitled to4/27th share in the suit property. Similarly, we hold that defendant 3 is entitled to 1/9th share in the suit property and finally we hold that defendant 4 is entitled to 4/9th share in the said property. It may be mentioned that under the decree made by the Court below the plaintiff is awarded a one-sixth share in the suit property. There is no appeal by defendants 1, 2 and 4 about that award made by the Court below. But this is a suit for, partition and since we are now ascertaining the shares of the parties, we must make a decree consistent with the rights of all the parties. We think, therefore, that we can fairly invoke the provisions contained in Order 41, Rule 33 Civil P.C. and say that the parties will be entitled to the shares indicated above.
26. Two other points require to be considered. One of them is about the question of mesne profits and the other is about costs. We under, stand that while the suit was pending, a receiver has been appointed of the property in suit and the Court below has given a direction in Its order that the amount In the hands of the receiver should be distributed in accordance with their respective shares.
There is no question, therefore, of any mesne profits arising while the receiver has been in possession. Mr. Purushottam argues that he is entitled to an order made in his favour as regards future mesne profits. We have held that the alienations in favour of defendants 6, 7 and 8 are not binding upon defendant 3. This means that these alienees have been in wrongful possession and that is the claim of mesne profits. 'Mesne profits' mean profits which a person in wrongful possession has actually received or might with ordinary diligence have received.
We do not see why defendant 3 should not be given future mesne profits as regards the properties in the possession of defendants 6, 7 and 8 and there will be an inquiry under Order 20 Rule 12, Civil P.C. As regards future mesne profits due to defendant 3 and arising between the date of the suit and the date when the receiver took possession of the property, there would also be an inquiry under the provisions of Order 20 Rule 12, Civil P.C.
27. The question of costs presents some difficulty. The main disputing parties are defendants 3 and 4 and each of them has partially succeeded and partially failed. Defendant 3 has failed to establish that defendant 4 is not the natural son of Chanbasappa from defendant 2. Defendant 4 has failed to establish the invalidity of the adoption of defendant 3.
The main contest, therefore, being between defendants 3 and 4, the question of costs has to be decided as between them. This is a suit for partition and ordinarily, the order of costs in a suit for partition is either that the parties should bear their own costs or that the costs should come jut of the property liable to be partitioned. But looking to the dispute between the parties we think that the fairest order to make would be that defendant 3 will pay defendant 4 half the costs of the suit as well as of the appeal.
Defendants 6, 7 and 8 have failed in their contentions. But the ground upon which the challenge was made to these alienations has been negatived in the Court below and has not been pressed by Mr. Purushottam in this appeal. We therefore, think that the fairest order to make would be that the rest of the parties will bear their own costs in the suit as well as in appeal.
28. The result of the aforesaid discussion is that the decree of the lower Court will have to bemodified and we substitute the following decree in place of the decree of the trial Court:
(1) It is declared that the deeds, Exs. 369, 370 and 371, and the gift over comprised in the deed (Ex. 372) are invalid and are not binding upon defendant 3. It is also declared that the properties comprised in the deeds, Exs. 368 and 372, are liable to be partitioned.
(2) It is further declared that the plaintiff, defendant 1 and defendant 2 are each entitled to 4/27th share in the suit property, that defendant 3 is entitled to 1/9th share in the suit property and that defendant 4 will be entitled to 4/9th share in the suit property.
(3) The plaintiff, defendant 1 and defendant 2 will hold the property to be allotted to them in accordance with their respective shares as under the Hindu Women's Rights to Property Act, 1937.
(3-A) Plaintiff and defendant 3 should get separate possession of their shares from the other defendants.
(4) The partition of the lands paying revenue to Government will be made by the Collector. The partition of the houses and house-sites will be made by the Commissioner appointed by the lower Court.
(5) While working out the partition, the properties in the possession of defendants 1 and 2 will, as far as possible, be allowed to remain in their possession.
(6) There will be an inquiry into future mesne profits under the provisions of Order 20 Rule 12, Civil P.C.
(7) The amount in the hands of the receiver will be distributed among the parties in accordance with their respective shares declared under this decree.
(8) Defendant 3 will pay defendant 4 half the costs of the suit as well as of the appeal. The other parties will bear their own costs both in the suit as well as in appeal.
29. I agree. I wish to add a few words with regard to the question whether defendant 4 is a son of Chanbasappa born to him after his death from defendant 2. (His Lordship discussed the evidence and proceeded:)
30-36. On behalf of the plaintiff and defendant 3 reliance has been placed upon Ex. 455, a letter which purports to have been written by witness Venkaji to defendant 3 on 8-12-1943, and in which it is stated that Chanbasappa had been ill and that he was feeling better. I am not inclined to attach much value to this document or to the statement of Venkaji that the contents of this letter are correct.
For in another part of his evidence Venkaji has stated that Chanbasappa's state of health was very good prior to his last illness. Exhibit 455 is a document which could be brought into existence at any time. It was not produced by the plaintiff or defendant 3 as one of the documents on which they wanted to rely. It is not referred to in defendant 3's evidence.
It was produced for the first time in the course of cross-examination of Venkaji. As this document must naturally have taken defendants 2 and 4 by surprise, I am personally of the view that the learned Judge was right in allowing the advocates for these defendants to cross-examine Venkaji. The cross-examination should, however, have been permitted only in regard to this letter i.e. in regard to its genuineness and its contents.
(His Lordship discussed further evidence and concluded.)
37-39. I, therefore, agree with the findingof ray learned brother on this point. I also agreewith his conclusions on the other points arguedin this appeal and with the order proposed byhim.