Judgement

Appeal (No. 143 of 1927) from a decree of the High Court (September 15, 1925) reversing a decree of the Subordinate Judge of Dharwar (June 25, 1923).

The appeal arose out of a suit by the respondents, the sons and grandsons of one Somappagowda deceased, against the two widows of his brother Baswantrao, and defendants each of whom also claimed to be the adopted son of Baswantrao. The plaintiffs claimed possession of watan lands in the village of Hallikeri, and a declaration that no adoption had taken place.

The only question material to this report was whether the defendants had established that a separation had taken place between the two brothers. The determination of that question depended in part on the weight to be given to entries in the registers kept under the Bombay Land Record-of-Rights Act (IV. of 1903).

The High Court (reversing the trial judge) held that the separation was not proved, and made a decree in favour of the plaintiffs.

1929. July 12, 15. Dunne K.C. and Colombos for the appellants.

E. B. Raikes K.C. and M. M. Bhatt for the respondents.

Dec. 3. The judgment of their Lordships was delivered by

SIR BINOD MITTER. This is an appeal from a decree of the High Court of Judicature at Bombay dated September 15, 1925, reversing a decree of the Subordinate Judge of Dharwar dated June 25, 1923.

The following pedigree will show the relationship of the parties to the litigation and their ancestors—

Dod-Baswantrao, d. 1893. |

|| Somappagowda. Baswantrao. ||

| |||

Nilapagowda. Fakirapagowda. Second First Wife,

| Plaintiff No. 1. Wife, Gangabai.

| Basava. Defendant

| Defendant No. 1.

| No. 2. |

||

| | | | |

Irbasapgowda Bapusaheb Chikkappa. Virupax Shankargowda.

Defendant Defendant

No. 3. No. 4.

Alleged adopted sons

Dod-Baswantrao died in 1893. He left two sons, Somappa gowda (hereinafter referred to as Somappa) and Baswantrao. Dod-Baswantrao owned and possessed considerable watan land in the villages of Hallikeri and Annigeri, Bhadrapur and Basapur. Somappa died on February 28, 1911, and Baswantrao on October 11, 1911. Baswantrao left two widows, Gangabai, defendant No. 1, and Basava, defendant No. 2. Gangabai is said to have adopted either the 3rd or 4th defendant in litigation between them a compromise was effected by which the adoption of the 3rd defendant was upheld.

Only two questions have been debated before the Board, and they are (1.) was there a partition between Somappa and Baswantrao between the years 1898 and 1900? and (2.) are [@ page LRIA

63] the plaintiffs (the respondents in this appeal) entitled to a declaration that Gangabai did not adopt either defendant No. 3 or defendant No. 4 as a son to Baswantrao ?

After Dod-Baswantraos death Somappa became patel, and he appointed as his deputy, as he was entitled to do, Baswantrao, who resided at Hallikeri and acted as the officiating patel there from 1902 to 1911.

On September 15 and 16, 1896, two self-reducing mortgages were executed by Somappa and Baswantrao jointly of land situated in Bhadrapur and in Hallikeri.

It appears that from and after June 9, 1898, various sums were borrowed by Somappa on his own personal responsibility, and ultimately he executed two self-reducing mortgages, both dated September 26, 1905, of lands situate in Bhadrapur and Basapur. During this time Somappa was living apart from Baswantrao. These last two mortgages recited the previous loans incurred by Somappa. On July 2, 1900, Baswantrao mortgaged some lands in Hallikeri, describing them to be in his sole ownership and his sole enjoyment, and appropriated the moneys so raised to his own use. From the last mentioned date down to December 9, 1910, Baswantrao on many occasions transferred various other plots of land in Hallikeri by executing instrumets of mortgage and lease and appropriated the consideration thereof to his own use, and in many of them he asserted that he was the sole owner of the land and that it was in his sole enjoyment.

After the death of Baswantrao in October, 1