ANIRUDH JAGDEPAO Vs. BABARAO IRBAJI

JUDGEMENT

(1.) This second appeal is filed against the judgment and Decree in first appeal of the District Judge, Nanded, for the decree in a suit decided by the Joint Civil Judge, Junior Division, Nanded. When this second Appeal reached hearing before Masodkar, J., in view of the fact that an earlier second appeal being Second Appeal No. 619 of 1971 in which an identical question of law was raised has been referred to a Division Bench by S. K. Desai, J., Masodkar, J., also passed an order directing that this second appeal should be heard along with second Appeal No. 619 of 1971. The said second appeal No. 619 of 1971 reached hearing before a Division Bench consisting of Chandurkar and Bhonsale, JJ., who, in view of the conflict between the judgments of two differant Division Benches of this High Court, framed a question of law and referred it for decision by a larger Bench. Parties to the said second Appeal No. 619 of 1971, however, compromised the said appeal. Meanwhile, the present appeal reached hearing before Shah and S. J. Deshpande, JJ., who in view of the aforesaid order of reference to a Full Bench made by Chandurkar and Bhonsale, JJ., also referred the present appeal to the full Bench framing an identical question of law.

(2.) The question of law which has been referred to the Full Bench in this appear is as follows ;- "Whether the words 'custom' or 'usage' occurring in section 10, (iii) and section 10 (iv) of the Hindu Adoptions and Maintenance Act, 1956, read along with section 3 (a) of the said Act includes within its sweep the rules of the Bombay School of Hindu Law (Mayukha) or interpretation of the text thereof by the Courts."

(3.) The facts which have given rise to this question of law may now be stated. One Irbaji, who was a Hindu belonging to Maratha community, residing at Nanded, died leaving him surviving four sons, namely, Narayan, Baburao, who is the first Respondent before us and was the original first plaintiff to the suit, Hiraman and Jagdevrao, who is the fourth Respondent before us and was the first defendant in the suit. Narayan had married one Ambubai and died without any issue. Hiraman also died leaving behind him one son, Bhujang, who too died leaving behind him two sons, Manika and Shankar, who are second and Third Respondents before us and were second and third plaintiffs to the suit. Jagdevrao, who is the Fourth Respondent before us and was the first defendant to the suit, has a son named Anirudh. Anirudh is the Appellant before us and was second defendant to the suit. In the suit the plaintiffs contended that a plot of land situated at village Vishnupuri, Taluka Nanded, was partitioned about 25 years prior to the date of the suit which was filed on December 7, 1967 and that Narayan had died prior to the partition. The plaintiffs' case was that Ambubai, Narayan's widow, was given a portion of the said land for her maintenance for life. This portion bears survey No. 81/B. Ambubai died on October 23, 1967 and the plaintiffs thereafter filed the suit out of which the present appeal arises being Regular Civil Suit No. 219 of 1967 in the court of the Joint Civil Judge, Junior Division, Nanded, for partition and possession against the . first Defendant Jagdevrao contending that he was in possession of the said property. Anirudh, the Appellant, was joined a second defendant to the said suit on an application made by him as he claimed that he had been adopted by Ambubai by a registered deed of adoption dated March, 2, 1966. The Defendants resisted the said suit claiming that the said survey No. 81/B was given to the share of Ambubai and not merely for her maintenance and that on the coming into force of the Hindu Succession Act, 1956, by reason of the operation of section 14 of that Act Ambubai had in any event became the the absolute owner of the said plot of land. It was further contended that Ambubai having adopted the Appellant, on Ambubai's death the said plot devolved by succession upon the Appellant. The Appellant also pleaded that there was a custom among the Maratha community to whic h the parties belonged to take in adoption any person even above the age of 15 years and even though such adopted person was married. It may be mentioned that on the date of adoption the Appellant was both above age of 15 years as also was married.