Judgment

KRISHNA IYER, J. :- An intricate point of Hindu Law bearing on an adoption by a widow and its impact on an earlier partition in the coparcenary all prior to the Hindu Succession Act, 1956 arise for decision in this appeal by certificate against the decree of the Mysore (now Karnataka) High Court. The plaintiff succeeded in both the Courts and the aggrieved second defendant who is the appellant before us has confined his challenge to two major contentions, although a few minor matters also require our attention in working out the ultimate relief.

2. Now the facts : A small family of Gowd Saraswat Brahmins of Belgaum had, as its head, one Mahadev and as coparceners his two sons Gajanand (Defendant No. 1) and Kashi Nath, who died in 1921 leaving behind a widow, Rakhama Bai (Defendant No. 3) and a daughter Lilavati. The plaintiff is Lilavati s son, i.e. the daughter s son of late Kashi Nath. Gajanand, the first defendant had an only son, Shripad the second defendant. Long years after the demise of her husband the third defendant adopted the palintiff on Feb. 16, 1956. In the considerable interval that elapsed, a partition took place in the family on April 24, 1944 between the then two living coparcencers, namely, Mahadev and the first defendant. The former passed away in 1946 but before his death he gifted his entire share in the joint family derived under the partition of 1944 to the second defendant. For completeness sake it must be mentioned that at the partition in 1944, an allotment for the resident and maintenance of the third defendant had been made. The second defendant, the donee from Mahadev, alienated some of those properties but the alienees are not parties to the present appeal although they were defendants to the litigation. The adopted son, i.e., the plaintiff, filed the present suit on April 20, 1956 ignoring the partition of 1944 and praying for fresh partition by metes and bounds of his half share. His case was that the gift was invalid like the partition and that he was entitled to an equal share with the first defendant together with profits attributable to his share. The contesting defendant was the second defendant who challenged the factum and validity of the adoption and also the right of the adopted son to re-open the partition or impugned the gift effected prior to the adoption. Other contentions had been raised which need not be noticed now.

3. The Trial Court granted a decree more or less as prayed for upholding the factum and validity of the adoption and the right of the plaitiff to re-open the partition and ignore the gift. The decree declared that the plaintiff was entitled to 1/3rd share, the first defendant to a 1/6th share, the second defendant to a half share, and so on. Profits that fell to the share of the plaintiff were also decreed. The liability of defendants 1 and 2 to pay maintenance to the third defendant under the partition deed of 1944 was to cease from the date of the suit. The High Court in appeal upheld the adoption and the right of the palintiff to re-open the partition. Certain minor modifications were made which will be referred to, to the extent necessary, later.

4. Shri Gupte, appearing for the appellant (second defendant), has taken us through the evidence regarding the custom of adopting the daughter s son by the widow, and argued that as a source of law - undoubtedly, custom is a source of Hindu law - there was no sufficient material to hold on the trinue aspects of antiquity, adequacy and continuity. He urged that the adoption was, therefore, invalid even though there was concurrence in the conclusion of the courts below. He did not seriously argue on the factum of the adoption, and even otherwise this is a finding of a fact rendered by the courts below which we are not disposed to re-examine.

5. Counsel for the first respondent, Shri Javali, took us through the High Court s discussion of the evidence bearing on custom and we are satisfied that there is ample justificat