Decided on September 12,1938


Referred Judgements :-



Divatia - (1.)THIS appeal has been preferred by defendant No. 2 in a suit by the plaintiff to recover possession of certain property. The plaintiff is the adopted son of one Ramappa and he has been adopted by his widow Karibasawa in 1921. The suit property belonged to one Sabu who died in 1904 or 1905 leaving a widow named Basawa. THIS widow was a minor and her guardian sold it in the first instance to one Shivappa in 1905 and the latter in turn sold the same to Mallappa. After1 his; death, the property has been sold by Mallappa's brother to the present defendant No. 2 who is the appellant before us. After the said sale by Basawa's guardian to Shivappa, Basawa remarried in 1906, and as a result the heir to Sabu's estate was the said Karibasawa, the widow of Ramappa who had died before Sabu in 1903. The relationship between Ramappa and Sabu is shown in the following pedigree: Yenkappa ______________________________ : : Sakreppa Fakirappa ____________________ Sabanna : : : : Yenkappa (adopted) Kareppa Sakreppa : : Ramappa = Karibasawa __________________ : : : : Yellapa Ramappa Kariyappa (plaintiff) : (given inadoption(adopted by Karibasawa) Sabu = Basawa to Venkappa)
(2.)THE present suit has been filed by the plaintiff as the adopted son of Ramappa to get possession of the suit property in the hands of the second defendant on the ground that by virtue of his adoption to Ramappa he has become entitled to the estate of Sabu and that the alienations by Basawa's guardian were unauthorised as they were not justified by legal necessity and therefore not binding on the holders of Sabu's estate. Both the lower Courts have come to the conclusion that the alienations by Basawa's guardian were not justified by legal necessity. It is, therefore, clear that if the plaintiff has proved that he has succeeded to the estate of Sabu, he would be entitled to recover the property from the appellant.
The trial Court had dismissed the suit holding that the plaintiff's adoption had been proved but that it was invalid in law inasmuch as the adoption was made by the widow of a gotraja sapinda of Sabu, that such an adoption was invalid, and that therefore it cannot affect Sabu's estate. The appellate Court has differed from that conclusion and has held that the plaintiff's adoption by Karibasawa is valid, that the suit is in time, and that the defendants had not acquired any title to the property by adverse possession.

With regard to the plaintiffs title, it is conceded now on behalf of the appellant that in view of the recent full bench ruling in Radhabai v. Rajaram (1937) 40 Bom. L.R. 559 F.B., the plaintiff's adoption by Karibasawa must be deemed to be valid. That decision is to the effect that the power of a Hindu widow to adopt depended upon considerations of a religious character and that any widow can adopt to her husband so long as she is the person entitled to carry on the line. It is, however, contended relying on another point decided by this full bench that although the adoption is valid, it has not the effect of vesting the suit property immediately in the plaintiff on his adoption. The point decided by the full bench is that an adoption by a widow, where the coparcenary was at an end, did not operate to divest the property vested in or through the heir of the last holder, and that the widow of a gotraja sapinda, who succeeded to any property as such cannot by adoption alter, after her own death, the devolution of the property to which she was entitled as such widow. It may be stated here that in that case the contest was between the adopted son and a reversioner, and it was held that although the widow succeeded to the family property as the widow of a gotraja sapinda, and had only a life estate in her, she cannot by her adoption divest the family property which had devolved upon the reversioner although the adoption itself was good for religious purposes. In fact that decision is based upon the principle of Hindu law that the widow of a gotraja sapinda took merely a life estate and that the property had become vested in the reversioner. In the present case, however, there is no contest between the son adopted by the widow of a gotraja sapinda and the reversioner, but the contest is between the adopted son of such widow and an alienee from the widow of the last male owner. The learned advocate on behalf of the appellant concedes that after the death of the adoptive widow Karibasawa, the plaintiff as her adopted son would be entitled to take possession of the property from the alienee, but he contends that so long as Karibasawa is alive, she alone is entitled to retain possession of the property in her capacity as the widow of a gotraja sapinda, and that the adoption of the plaintiff by her to her husband has no effect, during her lifetime of vesting the property in the plaintiff, although the property of her husband Ramappa would be vested in the plaintiff immediately on the adoption. In other words, he draws a distinction between the property enjoyed by the widow Karibasawa as the widow of her husband and the property which she would enjoy in her capacity as the widow of a gotraja sapinda and as the heir of her husband's agnate. It is conceded that both would be life estates in her hands, but it is contended that with regard to the latter kind of property, she being entitled to its possession during her lifetime, the plaintiff has no right to ask1 for possession of that property from the defendants. If at all, Karibasawa may file a suit to recover the property from the defendants. In other words, the appellant's contention is that the suit is premature and should be thrown out on that ground.

(3.)THIS point had been urged before the learned appellate Judge but he rejected it on the ground that the widow of a gotraja sapinda succeeding as heir stood in the same place as her husband, if living, would have occupied, and that she inherited the estate as a widow in the right of her husband and that that interest was therefore divested when she adopted a son to her husband. In my opinion, the learned Judge below was correct in this view. In our presidency widows of gotraja sapindas are given the right of inheritance mainly on the ground of usage, and that right has been recognised ever since the decision in Lulloobhoy Bappoobhoy v. Cassibai (1880) L.R. 7 I.A. 212 : S.C. I.L.R. 5 Bom. 110. It has been held, however, that although such widows are entitled to inherit in certain cases, they cannot do so until after the compact series of heirs was exhausted, and that when such a widow did inherit, she did so because she stood in the same; place as her husband, if living, would have1 occupied, and that if she succeeded to the estate of a male,, she took a widow's estate, and if she succeeded to the estate of a female, she took an absolute estate. It is conceded that Karibasawa, when she succeeded to the estate of Sabu, took a widow's estate. But it is urged that when she inherited the property, she did not do so as representing her husband's estate although she took it as she stood in the same place as her husband, if living, would have stood, but at the same time she got the property in her own right and that it did not form part of her husband's estate with the result that it would not vest in the adopted son immediately on his adoption. In my opinion, the distinction sought to be drawn between the two kinds of estates enjoyed by Karibasawa has no basis in Hindu law. If she inherited the property of Sabu in her capacity as the widow of a gotraja sapinda, she did so because as such she represented the estate of her husband Ramappa. It is clear that if Ramappa had been alive when Basawa remarried in 1906, he would have been entitled to the property. But Karibasawa got it because she was his widow and stood in the same place as her husband would have occupied if he was living. Therefore, if Karibasawa adopted a son to him, that son would be entitled to the estate of Ramappa or to any estate to which Ramappa would have been entitled if he had been living. It therefore follows that the property of Sabu would also vest in the plaintiff. In fact, the full bench decision to which I have referred above gives support to this conclusion in an indirect manner. If the adoption by the widow of a gotraja sapinda cannot affect the property vested in a reversioner, it does so because the widow is only enjoying a life estate, while the property is even contingently vested in the reversioner. If, however, as it is now held, the adoption is valid, it must follow, in my opinion, that the estate to which Ramappa would have been entitled if he were living is transferred from Karibasawa to the plaintiff as the adopted son. Karibasawa does not become any absolute owner or fresh stock of descent of the property. She would have the right to the possession of the property only in the absence of any absolute owner of this property, and the moment there is an absolute owner, her right must cease. The plaintiff becomes such absolute owner by virtue of the adoption, and hence he is entitled to recover the property from the defendants.
That being so, the other questions with regard to adverse possession by the defendants do not arise, because the plaintiff gets his right to recover the property on his adoption, and the suit has been brought within twelve years from that date. It appears that in 1931, that is, ten years after the plaintiff's adoption, the adopting widow Karibasawa had filed a suit against the defendants to recover possession of this suit property. She had claimed there to be the owner of the property and had not joined the plaintiff as a party presumably because after the adoption she had not been on good terms with him. That suit was dismissed on the ground of the defendants' adverse possession against her. But that decision would not in any way affect the plaintiff whose right to the property came into existence in 1921, even though the defendants might have enjoyed the property for more than twelve years as against Karibasawa. Besides, the plaintiff, who had become owner of the suit property and entitled to its possession, had not been joined by Karibasawa as a co-plaintiff in that suit. In fact that suit was filed ignoring the adoption of the plaintiff. Any decision in that suit, therefore, would not be binding on him. There is, therefore, to my mind, no doubt that the defendants are not entitled to urge the plea of adverse possession as against the plaintiff.


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