BHUPAL MAHALING KAMBLE Vs. GANPATI JOTI KAMBLE

JUDGEMENT

(1.) BY this Appeal, the appellant challenges the judgment dated 28th February 1979 passed by the Civil Judge, Senior Division, Sangli in Special Civil Suit No.13 of 1974. That civil suit was filed by the appellant, claiming partition and separate possession of his one-fourth share in the joint family property. It was the claim of the appellant that the original owner of the property was one Babaji, who had four sons by name, Joti, Shankar, Shivling, and Mahaling. The appellant claims to be the adopted son of Mahaling and others are the heirs of other sons of Babaji. It was the case of the plaintiff-appellant, that Mahaling expired in the year 1932 without any issue and that his widow-Gangubai, the defendant No.10, adopted him as his son. Other defendants by their written statement contested the claim of the appellant and denied the factum of adoption. They also raised other defences by way of the written statement. The trial court on the basis of the evidence on the record has found that the plaintiff has not proved that the defendant No.10 had adopted him with express authority of her deceased husband and therefore, the suit has been dismissed by the trial court.

(2.) SHRI Rajure, the learned counsel appearing for the appellant urged before me that according to Section 8 of the Digest of Hindu Law, as in force in the then existing Kolhapur State, a Hindu widow can adopt a son/boy in respect of the property of her husband with express authority from her deceased husband. Therefore, Rajure urged before me that the trial court had committed gross error in not accepting the factum of adoption-deed wherein it is specifically stated that the plaintiff was adopted by the defendant No.10 pursuant to an express authority given to her by her deceased husband. Perusal of the judgment of the trial court as also the evidence on the record shows that so far as the recitals in the adoption deed are concerned, it is an admitted position that the adoption deed was scribed by one Joshi, who had come from Ichalkaranji. The information given to him by the natural father of the appellant and his adoptive mother are that the appellant was taken in adoption by the defendant No.10 and he was given in adoption by his father. No other instructions are given to the scriber to write the adoption-deed. On the basis of this evidence the court has come to the conclusion that Shri Joshi, a usual writer of bonds, must have incorporated these recitals in general without there being any instructions. The trial court has found that in the plaint there is no allegation made that deceased Mahaling gave express authority to defendant No.10 to adopt the appellant. It is further to be seen here that perusal of the evidence on the record shows that except the defendant No.10, who is adoptive mother of the appellant, there is no other witness examined to prove the express authority given by deceased Mahaling to the defendant No.10 to adopt a son. The trial court who had an occasion to watch the demeanour of the witness has dis-believed the deposition of the defendant No.10 and has recorded a finding that the appellant has failed to prove that he was validly adopted by the defendant No.10 as her son. It is now a settled law that when a finding recorded by the trial court, which had an opportunity to watch the demeanour of the witness and on the basis of that demeanour, if the trial court dis-believed the deposition, then the appellate court cannot lightly disturb the findings recorded by the trial court. I further find that Mahaling had expired in the year 1932 and the claim for share in the property was made in the year 1970. The court has observed that due to inaction on the part of the defendant No.10 and the plaintiff, the other defendants who inherited the property in question, dealt with the property as their own for a long period of 38 years and therefore, the court has declined to grant a decree of possession in favour of the appellant, I find no fault in the reasons given or adopted by the trial court.