The presumption of authority under Mysore Act 10 of 1933, S. 9(1) can be rebutted by establishing that the husband had expressly prohibited the widow from making an adoption.

Judgement

MUDHOLKAR, J. : The point in dispute amongst the parties to this appeal by certificate from a judgment of the High Court of Mysore pertains to the adoption of the plaintiff-respondent No. 1, Muddappa. Muddappa who was the natural born son of Ganga Gowda (Jr.) and his second wife Ramamma (defendant No. 2) and according to him, was adopted by Eramma (Sr.) as a son to her deceased husband Chenne Gowda (Sr.). The fact as well as the validity of the adoption were denied by the defendant Eramma (Jr.) who was defendant No. 5 to the suit and by her brothers Purade Gowda and Nanjunde Gowda who were defendants 6 and 7 to the suit being donees from her of property belonging to the family. The relationship between the parties to the suit would be apparent from the following genealogy which is set out in the plaint :Ganga Gowda (Senior)

It is common ground that Channe Gowda (Sr.) died some time in the year 1911 leaving behind him his widow Eramma. (Sr.) but without leaving any male issue. It is said that he had left two daughters, one of whom died shortly after his death but the other probably is still alive. According to the plaintiff he was adopted by Eramma (Sr.) on September 22, 1950. But the deed of adoption which was executed on that very day was registered on October 31, 1950. After the adoption, however, Eramma (Jr.) the 5th defendant executed a deed of gift in favour of her brothers Purande Gowda and Nanjunda Gowda, defendants 6 and 7, on September 28, 1950 whereunder she conveyed the joint family property which at family partition in the year 1940 had been allotted to her share. The plaintiff being a minor, instituted a suit on December 2, 1950 for a declaration of his status as a validly adopted son of the deceased Channe Gowda (Sr.) through his next friend, his adoptive mother Eramma (Sr.). The plaint alleged that even though several demands were made to deliver possession of half of the joint family property to which the plaintiff was entitled, the defendants did not deliver it to him. He, therefore, claimed a partition of the joint family property, possession of his half share therein and mesne profits.

2. The suit was resisted by defendants 5, 6 and 7 but not by the other defendants who, it may be mentioned, are the other members of the family. It will be seen from the genealogy that the plaintiff Muddappa is no stranger. He is a son of Gange Gowda (Jr.), the elder son of Shive Gowda. Shive Gowda was the elder brother of Channe Gowda (Sr.) Eramma (Jr.) is the widow of Shivaganga Gowda who was the second son of Shive Gowda. The only other male members of the family existing at the date of suit were Muddappa and his natural brother Sivanna defendant No. 3.The former claimed half share in the family property. According to the contesting defendants, however, no adoption at all took place on September 22, 1950, that the adoption deed was antedated, that in any case Eramma (Sr.) had no authority to make the adoption, that even if the fact as well as the validity of the adoption is found in favour of the plaintiff the adoptive mother was divested of her interest in the family property by reason of a partition which took place in the year 1940 during the lifetime of Gange Gowda (Jr.). This last contention, however, was not raised before the High Court and we have not permitted it to be raised in the appeal before us. It was faintly suggested that the alienation by Eramma, defendant No. 5, in favour of her brothers of certain family property which was in her possession was not affected by the adoption. This contention, however was not persisted in for the obvious reason that it is plainly unsustainable. The only points which were argued before us were, therefore, (1) whether the adoption had in fact been made; and (2) whether Eramma (Sr.) was not authorised to take a son in adoption to her deceased husband.

3. In so far as the fact of adoption is concerned there is ample evidence. In the first place there is the evidence of Era