Judgement

Appeal (No. 42 of 1939), by special leave in forma pauperis, from a decree of the High Court (August 20, 1935) which reversed a decree of the Subordinate Judge at Satara (December 21, 1931).

The following facts are taken from the judgment of the Judicial Committee —

MADHAVRO

(died in 1894)

|

| | |

Anandrao (died Rangrao (die d i)n 1894 Govinda (died in 1894)

in 1928) |

Vinayak (died in 1921) = Trimbak Died in | |

Sarawatibai 1910) Gopala (died in Warman

(Defendant No. 2) | 1994) (Defendant No.

| | 1)

Law. Rep. 69 Ind. App. 64 ( 1941- 1942) Appa Trimbak Deshpande V. Waman Govind Deshpande

107

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Madhav alias Govind (adopted Raghunath Appa (Plaintiff) Govind (adopted

Bapu (died in son. Defendant (Defendant No. by Defendant

1925) No. 3) 4) No. 2)

In 1865 the appellants grandfather, Rangrao, was given by his father, Madhavrao, to the widow of one Vishnu in adoption to her deceased husband. Madhavrao had two other sons, Anandrao and Govinda, and by a deed, dated May 18, 1868, to which the father and all three sons were parties, the terms on which the adoption had been made were expressed. A main term was to the effect that on Madhavraos death the total income from his ancestral immovables should be divided —not into thirds or shares of 5 annas 4 pies—but in proportions as follows to Rangrao, notwithstanding his adoption, 4 annas 8 pies, and to each of his brothers, 5 annas 8 pies and that as regards certain property expected to come to Rangrao from his new family, the income from the immovables should be divided so that Rangrao should get a 6 annas 8 pies share, and the share of each of his brothers should be 4 annas 8 pies. Rangrao was during his fathers lifetime to live with him. By the eighth clause of the deed his share of the income from his fathers property was to continue to his descendants, save that it should not go to any adopted son unless he had been taken from among the issue of Anandrao or Govinda. [This clause is here mentioned because it has some bearing on the question whether on a true view of the effect of the deed Rangraos interest in his fathers property was an interest in income only, or whether it extended to the capital or corpus of the property—a question which may become important.] Rangrao did not succeed in obtaining possession of any of the properties of Vishnu, and he was equally unsuccessful when in 1890 Vishnus brother Keshavrao died, in obtaining recognition as his heir. Rangrao died in 1894 without having brought the validity of his adoption to the test of a civil suit. His father Madhavrao and his brother Govinda died in the same year, leaving Anandrao as the senior member of that branch of the family.

In 1894, also, Anandrao as next friend brought a suit (No. 97 of 1894) in the court at Wai, on behalf of Trimbak (only son of Rangrao and father of the present appellants) laying claim to the properties of Vishnu and his brothers Keshavrao and Ganpat, on the footing that they had all been joint and that the two latter had died without leaving issue. That suit was dismissed by the trial court (June 19, 1897), and on first appeal (August 3, 1898), and by the High Court on second appeal (March 1, 1899). The ground on which those decisions proceeded was that as Vishnu was joint with his brother Keshavrao, his widow could not validly adopt a son to him unless she had either his permission or the consent of Keshavrao. That was at the time, and had been since 1879 at least, the rule of Hindu law accepted as prevailing in the Mahratta country of the Bombay Presidency and thus applicable to the parties. On the questions of fact, whether Vishnu had given permission and whether Keshavrao had consented there was no reason to doubt the correctness of the concurrent decisions in the negative.

Trimbak died in 1910, leaving two sons, the second appellant, born in 1908, and the first appellant (plaintiff), born in 1910. Anandrao continued in the management of the family property till his death in 1928, wh