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Subrao Baji Patil Vs. Dada Bhiwa Chawan - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 459 of 1939
Judge
Reported inAIR1941Bom323; (1941)43BOMLR492
AppellantSubrao Baji Patil
RespondentDada Bhiwa Chawan
DispositionAppeal dismissed
Excerpt:
hindu law--adoption--widow of gotraja sapinda inheriting immovable property--adoption by widow--whether right to sue in respect of property vests in adopted son.;under hindu law the widow of a gotraja sapinda cannot by adoption alter the order or inheritance of the property inherited by her as such and divest the reversioner, although consists of a right to sue for possession of immoveable property.;radhabai v. rajaram (1937) 40 bom. l.r. 559, f.b., followed.;shivappa v. kariyappa (1938) 41 bom. l.r. 208., disapproved. - - ahilya, as the widow of a gotraja sapinda, according to the law in force in this presidency, enjoyed only a widow's estate, and in 1928, she adopted the plaintiff. the suit failed in both the lower courts, though for different reasons......is made out in this way. as long ago as the year 1892 jana, who was the widow of tukaram, sold the suit property to the defendant's father. in 1913 she endeavoured to recover the property on the ground that the transaction was a mortgage and not a sale, but she died soon after that suit was started, and the suit abated. on the death of jana in 1913 the property passed to ahilya, who was the widow of tukaram's divided brother baji, who had died before jana. ahilya, as the widow of a gotraja sapinda, according to the law in force in this presidency, enjoyed only a widow's estate, and in 1928, she adopted the plaintiff. in 1936 the plaintiff filed this suit seeking to recover the property from the defendant, who had been in possession since 1892,on the ground that the sale by jana was not.....
Judgment:

John Beaumont, C.J.

1. This is an appeal against a decision of the Assistant Judge of Satara. The plaintiff sues to recover certain immoveable properly, and hiss title is made out in this way. As long ago as the year 1892 Jana, who was the widow of Tukaram, sold the suit property to the defendant's father. In 1913 she endeavoured to recover the property on the ground that the transaction was a mortgage and not a sale, but she died soon after that suit was started, and the suit abated. On the death of Jana in 1913 the property passed to Ahilya, who was the widow of Tukaram's divided brother Baji, who had died before Jana. Ahilya, as the widow of a gotraja sapinda, according to the law in force in this Presidency, enjoyed only a widow's estate, and in 1928, she adopted the plaintiff. In 1936 the plaintiff filed this suit seeking to recover the property from the defendant, who had been in possession since 1892,on the ground that the sale by Jana was not for legal necessity. The suit failed in both the lower Courts, though for different reasons. In the trial Court the learned Judge held that the adoption of the plaintiff did not divest the estate of Tukaram, which was vested in Ahilya; whilst in the lower appellate Court it was held that the adoption did divest any estate then in Ahilya, but that the plaintiff's suit was barred by limitation under Article 141 of the Indian Limitation Act, 1908.

2. I think that the ground taken in the lower appellate Court cannot be supported, because the plaintiff's claim undoubtedly arose in 1928, and, although at that date any right which Ahilya had to claim possession was unquestionably barred by limitation, the plaintiff does not claim through Ahilya. But I think that the plaintiff's claim fails on the authority of the full bench decision in Radhabai v. Rajaram,1 In that case the full bench held that the widow of a gotraja sapinda could not by adoption divest the estate of a reversioner and thereby alter the inheritance.

3. Mr. Dixit for the appellant relies on a later decision of Mr. Justice Divatia in Shivappa v. Kariyappa? In that case the facts were practically the same as in the present case. The adopted son was seeking to recover possession against a purchaser from a former widow on the ground that the sale was not for necessity, and Mr. Justice Divatia distinguished the full bench case on the ground that in the full bench case the contest was between the adopted son and the reversioner, whilst in the case before him the contest was between the adopted son and the purchaser. But with all respect to the learned Judge, 1 think that that is a wrong way of looking at it, and that in fact his decision is impossible to reconcile with the full bench decision. In the full bench case, the question was whether the adopted son or the reversioner was entitled to immoveable property. In the present case, as in the case decided by Mr. Justice Divatia, no doubt the actual contest is between the adopted son and the purchaser, but the defence of the purchaser is that the plaintiff cannot sue, because it is the reversioner to Tukaram's estate who has the right to sue. Who that reversioner may be, the evidence does not show, but there must be some reversioner who would have taken but for the adoption, and from the full bench decision it follows that the adoption did not oust the title of that reversioner. The only distinction between this case and the case decided by Mr. Justice Divatia on the one hand, and the full bench case on the other, is that the property to be divested in the latter case was the immoveable property itself, whereas in the former cases the property to be divested was the right to sue for possession of immoveable property. But the principle of the full bench case applies. The widow of a gotraja sapinda cannot by adoption alter the order of inheritance of the property and divest the reversioner. That applies just as much to a chose in action as to immoveable property, and I think that on that ground the appeal fails and must be dismissed with costs.

Sen, J.

4. I agree.


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