1. Respondent 1 plaintiff filed the suit in the trial Court for partition and Possession of his half share in the suit properties. Defendants 2 to 4 were impleaded as alienees of some of the joint family Properties, Defendants 1 to 3 are the appellants. Second respondent is defendant 4.
2. One Siddappa who died on 21-6-1898 had two sons. Basappa and Kulappa. Basappa died on 2-8-1930 and Kulappa died on 23-9-1909. Defendant 1 is the only son of Basappa and he was born in 1916. The plaintiff is the only son of Kulappa and he was born in 1910. Defendant 1 has an only daughter who is married. Defendant 1 had also got two sisters. Chandrawwa and Dundawwa. the former died about 3 months prior to the suit and the latter about 3years Prior to the suit. Dundawwa adopted the plaintiff. The plaintiff alleges that his adoption was in Dwyamushyayana form and claims right in the Properties of the natural family also and that he is entitled to Partition and possession of half share in the suit Properties. Defendant 1 pleaded that the plaintiff was not adopted in Dwyamusliyayana form, there was a prior Partition in the family in 1880 or 1890 and that the suit properties belong to him exclusively since they had fallen to the share of Basappa in the partition between Basappa and Kulappa. The trial Court held on issue 1 that there was no partition between Basappa and Kulappa in 1880 or 1890. On the second issue it held that the plaintiff was adopted in Dwyamushyayana form. after an agreement that he should retain his share in his natural family also. On issue 3, it held that the alienation in favour of defendants 2 to 4 are not for legal necessity. It according decreed the suit with a direction to allot in the Partition Surrey Numbers 210 and 77. as far as possible, to the share of defendant 1 and to allot. as far as Possible. the house V. P. C. 770 of Nagathan to the Plaintiff and V. P. C. 771 of Nanthan to defendant 1.
3. It is urged by Mr. Desai, learned counsel for the appellants. that the adoption of plaintiff in Dwyamushyayana form is not valid since such an adoption would be valid only if it takes place as a result of an agreement between the natural father and the adoptive father. Exhibit P-59 is the adoption deed. It is styled as Dwyamusliyayana adoption deed. It is a registered deed. It is in evidence that Dundawwa. the adoptive mother and others approached a lawyer and adopted the Plaintiff on his advice in Dwyamushyayana form. According to the plaintiff's case the adoptive mother asked his real mother to give him in adoption and his natural mother agreed to give the plaintiff in adoption provided he should continue to be the son for his natural family also as he was the only son to his father. The contents of Ex. P-59 show that there was an agreement between the adoptive mother and the natural mother to that effect and that the ceremony of adoption took place. P. W. 2 is an attest or of the adoption deed. He is 72 years of age. He has Spoken to the circumstances under which the adoption took place. It was suggested to him in cross-examination that the fact that plaintiff should retain his status of a son in both the families was mentioned in the adoption deed without the knowledge of the adoptive mother. Dundawwa. The witness denied the suggestion. The lower Court relied on the evidence of this witness. It is to be noticed that there is no plea in the written statement of defendant 1 that Dundawwa was not aware of the above recital in Ex. P-59. There is no reason to differ from the view of the lower Court that the adoption in Dwyamushyayan form did take place as alleged by the plaintiff.
4. Mr. Desai. learned counsel, relied on a decision reported in , (Dhanibai v. Neem Kanwar). The following passage from Sir Hari Singh Gaur's Hindu Code. Third Edition, 13. 442 relating to Dwyamushyayana form of adoption was referred to with approval:-
'It has passed through four stages. In the first stage. he was the Kshetraj son of the wife who belonged both to the begetter as well as to his mother's legitimate husband the rule being that if any one sows on my land, he shares the crop with me. In the second stage. he was the son of Nivog by a relation or a priest appointed to procreate him on the wife. In the third stage. he being the only son of his father, he was permitted to be shared by his brother who would have former been entitled to the Nivog company of his wife and who. therefore, was entitled to a share in his brother's son even though begotten by him without his assistance. In the fourth and present stage. he is merely the son of two fathers whether these be brothers or not and the only condition required for their appoint paternity is that they should. before the adoption. have agreed to treat the son as the common son of both. Such an agreement may be express or implied.'
5. It was held that since Dwyamughyayana form of adoption is only a variety of the Dattaka form of addition. it is essential, that the ceremony of giving and taking should be proved to have been performed even in this kind of adoption and further it should be proved that there was an agreement between the natural father and the adoptive father that the boy shall be regarded as a son of both. Relying on this observation, it is contended by Mr. Desai that it is only the natural father and the adoptive father who can enter into an agreement in order to validate an adoption in Dwyamushyayana form. In (1901) ILR 25 Bom 537, (Krishna v. Paramshri) it has been heed that--
' the power of giving and taking an only son in adoption in the Dwyamushyayana form is not confined to brothers, but may also be exercised by their widows.'
And it has been further observed as follows:
'The ceremonies prescribed in Dwyamushyayana form of adoption are the same as in the case of an absolutely adopted son or a Shudha Dattaka. . The only addition is of an undertaking or stipulation that the.child should belong to both the giver and the adopter. If an only son be given in adoption by a brother of adopter, Vasistha's prohibition of the gift of an only son is not violated. Nanda Pandit has indeed remarked that the gift of an only son is limited to the case of two brothers, but the Dattaka Mimamsa and the Dattaka Chandrika alike lay down that the Dwyamushyayan form of adoption is not confined to brothers, but is general in its application just as much as the case of a son begotten on a woman by other Person than her husband is not confined to brothers. This is laid down in the Mitakshara.'
6. In AIR 1933 Bom 137, (Basappa Dandappa Patil v. Gurulingawa Shivashankarappa Patil) the plaintiff dopted his father-in-law's brother's son in the Dwyamushyayana form. While upholding the validity of the adoption it was observed as follows:
'In every case of nitya dwyamushyayana form of adoption, whether it be by the brother of the natural father of the adopted son or by a stranger, there must be an agreement to the effect that he shall be the son of both, and such an agreement must be proved like any other fact by the party alleging it.'
7. Hence, it cannot be said that an adoption in the Dwyamushayana form can be valid only if the adoptive father and the natural father are brothers. Hence, this contention of Mr. Desai has to be rejected and the finding of the lower Court in this regard has to be upheld,
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10. The plaintiff has rightly been held by the lower Court to be entitled to a half share in the suit properties. This appeal is, therefore, dismissed with costs of respondent-1-plaintiff.
11. Appeal dismissed.