MUDI GOWDA GOWDAPPA SANKH Vs. RAM CHANDRA RAVAGOWUA SANKH

JUDGEMENT

(1.) THE Judgment of the court was delivered by

(2.) THIS appeal is brought by special leave from the judg-ment of the Bombay High court, dated 12/12/1962, in First AppealNo. 436 of 1958 by which the High court dismissed the appeal and allowedthe cross-objections filed by the respondents in the said appeal. <PG>387</PG>

(3.) THE first question to be considered in this appeal is whether thepartition deed executed by Goudappa and Apparaya on 28/04/1944, wasa sham transaction and not intended to be effective. Both the trial courtand the High court have reached a concurrent finding after an elaborateexamination of the evidence that the partition deed was not genuine, andthat it was effected for an ulterior purpose in order to defeat the rights ofthe widows in the joint family. It is manifest that the finding of the lowercourts upon this question is essentially a finding upon a question of fact) andin an appeal by special leave it is the normal practice of this court to acceptsuch a concurrent finding of fact as correct. It was, however, contendedby Mr. Sanghi that the finding of the lower courts is vitiated in law becausethere was no evidence in support of that finding. In our opinion, there isno justification for this argument. In the partition deed it is recited thatthe lands were partitioned with the help of Panchas but the names of Panchasare not mentioned in the document and none of the Panchas has signed it.As to the division of the properties, Goudappa has been given 101 acres and39 gunthas while Apparaya has been given 50 acres and 10 gunthas only.THE total assessment of lands given to Goudappa is Rs. 82.00/3.00 while theassessment of the lands given to Apparaya is Rs. 61/71-. THEre appears to beno division of the house at all, since nothing is mentioned in the partitiondeed about the house. THE unequal division of the lands in the so called<PG>389</PG>partition deed is a strong circumstance which indicates that the transactionwas not genuine. It should also be noticed that at the time of the partitiondeed there were widows of two sons in the family, Nenappa the second andRevagouda. At about this time, after Nenappa's death, the adoption ofNenappa by Goudappa was denied. THE scheme' of the partition was,therefore, to deprive the two widows of any claim for maintenance out ofthe joint family properties but to limit their rights to about 50 acres of landgiven to Apparaya. THEre is also evidence that after the partition deed,the two brothers continued to be in joint possession of the lands and theylived joint in the same house as before. It appears that the two brothershad a joint mess even after the date of partition. It was contended byMr. Sanghi that there was no evidence that the two brothers continued tobe in joint possession of the lands. But it is not possible to accept thisargument as correct. On a perusal of the evidence it is apparent thatP. Ws. 1 to 4 all supported the case of the joint possession of the two brothersand their evidence has been believed by both the lower courts. THEre isanother circumstance which strongly lends support of the plaintiff's case onthis point. It was at one time supposed that the doctrine of Mitaksharalaw was that if the last surviving coparcener died and the property passedto his heir, such as a widow or a collateral, the power of the widow of apredeceased coparcener to adopt was at an end. (Chandra v. Gojarabai andAdivi Suryaprakasarao v. Nidamarty Gangaraju. THE cases on this point wereconsidered in 1936 by the full bench of the Bombay High court in BaluSakharam Powar v. Lahoo Sambhaji Tetgura. It was held in that case thatwhere a coparcenery exists at the date of the adoption the adopted sonbecomes a member of the coparcenary, and takes his share in the join'property, but where the partition takes place after the termination of thecoparcenary by the death, actually or fictionally, of the last survivingcoparcener, the adoption by a widow of a deceased coparcener has not theeffect of reviving the coparcenary and does not divest property from the heirof the last surviving coparcener (other than the widow) or those claimingthrough him or her. But' the decision of the full bench of the BombayHigh court was expressly overruled by the Judicial Committee in Anant v.Shankar It was held that the power of a Hindu widow does note ome to anend on the death of the sole surviving coparcener. Neither does it dependupon the vesting or divesting of the estate, nor can the right to adopt bedefeated by partition between the coparceners. THE rights of the adoptedson relate back to the date of the adoptive father's death and the adopted sonmust be deemed by a fiction of law to have been in existence as the son of theadoptive father at the time of the latter's death. If, therefore, there was acoparcenary in existence when the adoptive father died, then whether itcame to an end by the death of the last surviving coparcener or by subsequentpartition among the remaining members, an adoption validly made by thewidow of the deceased coparcener would have the effect of divesting theestate in the hands of the heir to the last surviving coparcener in the first caseand of putting an end to the partition in the second case and enabling theadopted son to claim a share in the family properties as if they were stilljoint. THE decision of the Judicial Committee in Anant v. Shankar wasunexpected and revolutionary in character. It is likely that in view of thefluid and uncertain state of the law on.this point the two brothers Goudappaand Apparaya decided to execute a bogus deed of partition in order to avoidany legal consequence which may follow if either of the widows should take<PG>390</PG>a son in adoption. We are accordingly of the view that there is properevidence to support the concurrent finding of the lower courts and there isno reason to disturb that finding.