Judgment

VENKATARAMA AYYAR, J.:

This appeal arise out of a suit for partition instituted by the appellant in the court of the Civil Judge, Senior Division, Bijapur. The relationship of the parties will appear from the following genealogical table :

Siddopant and Krishnarao were members of joint undivided family. Krishnarao died in 1897 leaving behind a widow, Rukminibai, who is the sixth defendant in the suit, Siddopant died in 1899 leaving surviving his son, Gundo who died in 1901 leaving behind a widow, Lakshmibai, who is the fifth defendant. On 16-12-1901 Lakshmibai adopted Devji, who died on 6-5-1935 leaving three sons, defendants 1 to 3, and a widow, Akkubai, the fourth defendant. On 26-4-1944 Rukminibai adopted the plaintiff, and on 29-6-1944 he instituted the present suit for partition claiming half share in the family properties.

2. Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands, to the whole of S. No. 138 and a half share in S. Nos. 133 and 136 in the village of Ukamnal and a half share in S. Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao, who was entitled for his half share of the Watan lands, to the whole of S. No. 137 and to a half share in S. Nos. 133 and 136 in the village of Ukamnal and to a half, share in S. Nos. 163 and 168 in the village of Katakanhallil.

Siddopant purchased a house under Exhibit D-36 and lands under Exhibits D-61 and D-64, and constructed two substantial houses. His grandson, Devji, also built a house. All these properties are set out in schedules A and B to the plaint, A schedule consisting of houses and house-sites and B schedule of lands. It is the plaintiffs case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao.

3. Swamirao died about 1903 issueless and on the death of his widow shortly thereafter, his properties devolved on Devji as his nearest agnate, and they are set out in schedule c to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest Devji of those properties, and sues to recover them from his sons. In the alternative, he claims a half share in them on the ground that they had been blended with the admitted joint and family properties.

4. The defendants denied the truth and validity of the plaintiffs adoption. They further contended that the only ancestral properties belonging to the family were the Watan lands in the villages of Ukamnal and Katakanhalli, that the purchases made by Siddopant were his self-acquisitions, that the suit houses were also built with his separate funds, and that the plaintiff was not entitled to a share therein.

With reference to the properties in schedule C, they pleaded that the plaintiff could not by reason of his adoption divest Devji of the properties which had devolved on him as heir. They denied that those properties had been blended with the joint family properties.

5. Both the Courts below have held that the adoption of the plaintiff is true and valid, and that question is no longer in dispute before us. They have also held that the purchases made by Siddopant and the houses built by him were his self-acquisitions, as was also the house built by Devji. The trial Court held that the plaintiff was entitled to a half share in S. No. 639 and 640 in schedule A on the ground that they belonged to the family as ancestral properties; but the High Court held that had not been established.

As regards the properties set out in schedule C, while the trial court decided that the appellant was entitled to them exclusively under the decision of the Privy Council in - Anant Bhikappa v. Shankar Ramchandra , AIR 1943 PC 196 (A), the High Court held following a Full Bench decision of that Court in - Jivaji Annaji v. Hanmant Ramchandra , AIR 1950 Bom 360 (FB) (B), th