YADAO Vs. NAMDEO

JUDGEMENT

(1.) THIS is an appeal by the plaintiff, a minor through his guardian, from a decree, dated April 27, 1918, of the Court of the Judicial Commissioner of the Central Provinces, which reversed a preliminary decree of the partition of December 15, 1916, of the additional District Judge of Akola, in Berar, and dismissed the suit. By the preliminary decree it was declared that the parties to the suit were entitled to separate possession of the property mentioned in the schedule to that decree, and that : "The plaintiff, as a legally adopted son of the deceased Pundlik Patil, is entitled to a half share in the property immoveable and moveable, including the shop assets, and that he is entitled to the possession of that half share after a partition of it all by metes and bounds as against the defendant. If any other property besides that in the hands of the receiver available for partition is brought to the notice of the Court, till the passing of a final decree of partition it shall be put into the schedule," and a Commissioner was appointed to make partition of the said property.

(2.) THE plaint in the suit was not in the form of a plaint for partition, but in the Courts below the suit was treated as a suit for partition, and as a suit for partition their Lordships will consequently regard it.

(3.) PUNDLIK died childless in January, 1905, leaving his two wives, Mussamat Champabai and Mussamat Annapurnabai, surviving him. Mussamat Champabai was the senior wife, and she, with the concurrence of Mussamat Annapurnabai, adopted in 1905, as a son to her deceased husband, Pandurang, who was one of the two sons of Namdeo the defendant. The validity of that adoption is not disputed. Pandurang, whose adopted name was Vithalrao, died in childhood and unmarried in 1907 and Mussamat Champabai in December, 1908, in fact adopted to her deceased husband the plaintiff without having obtained the consent of any one, except the consent of the plaintiff's natural father, who had given him to her to be adopted by her to her deceased husband. Namdeo had refused to give his consent to that adoption, and his contention was and is that Mussamat Champabai had, under the Hindu law which was applicable to their family, no power as a widow to make the adoption, and also that any such adoption by her had been prohibited by PUNDLIK. The trial judge came to the conclusion that after the adoption of Pandurang the joint family bad separated, and that afterwards, when the contingency for a second adoption arose by reason of Pandurang's death, Mussamat Champabai could validly adopt the plaintiff without the consent of Namdeo who was then separate, and made the preliminary decree for partition. The learned judges of the Court of the Judicial Commissioner came to the conclusion that there had been no separation of the joint Hindu family; that PUNDLIK intended that Pandurang only should be adopted, and had given no general permission as regards the adoption of a son that on Pandurang's death Namdeo and his son Rambhau became by survivorship sole owners of the joint family estate; and that Mussamat Champabai could not under such circumstances make a valid adoption of the plaintiff without having obtained the sanction of Namdeo; and, holding that the adoption was invalid, they, by their decree, dismissed the suit. From that decree of the Court of the Judicial Commissioner this appeal has been brought.