Sir Madhavan Nair.-

This is an appeal by the plaintiff from a judgment and decree of the High Court of Judicature at Bombay dated 12 - 11 - 1942, affirming a judgment and decree of the Subordinate Judge at Dharwar dated 26 - 6 - 1940.

[2] The appeal arises out of a suit brought by the appellant for a declaration inter alia that he is the validly adopted son of one Limbangouda deceased, and has thereby acquired the right to recover possession of one half share in the suit properties which are in the possession of defendant - respondent 1. The factum of adoption though raised in the issues was abandoned at an early stage, and does not arise for decision.

[3] Only two questions remain for decision before the Board, these being:

(1) Has the appellant by virtue of his adoption acquired the right to recover possession of one half share in the suit properties?

(2) Had defendant - respondent 2, the adoptive mother of the appellant, lost her right to adopt to her husband in view of the maintenance deed executed in her favour by defendant - respondent 1?

[4] Question No. 1 was answered by the learned Judges of the Courts in India against the appellant on the strength of the Full Bench decision of the Bombay High Court in ILR (1937) Bom 508,1 and of another decision in 41 Bom LR 12772 which followed it. The decision of the Full Bench has since been overruled by the Privy Council in 70 IA 232.3

[5] Question 2 was answered in favour of the appellant by the trial Court, but was not considered by the High Court.

[6] The facts of the case may be stated briefly. The relationship of the parties to the suit appears from the following pedigree:

Basanagouda

Shankargouda Limbangouda Channagouda Rudragouda

(d. 29 - 7 - 1906) (d. 1903) (d. 1903) (d. 1902)

=Neelawa =Savantrewa =Siddawa (d. 1916) =Ningawa (d. 1914)

(Defendant - Respondent 2)

Shivabasangonda (d. 4 - 12 - 1906)

Neelangouda (Plaintiff - Appellant)

Ujjangouda (Defendant - (adopted on 30 - 1 - 1936)

Respondent 1) (adopted 1908)

Rudragouda (Defendant - Respondent 4)

[7] Shankargouda, Limbangouda, Channagouda and Rudragouda who were four brothers formed members of an undivided Hindu family governed by the Mitakshara School of Hindu law. Of these, Rudragouda died in 1902, and Channagouda died in 1903, leaving behind them their widows who died issueless in 1914 and 1916 respectively. Limbangouda died in 1903, leaving behind him his widow Savantrewa (defendant - respondent 2). Shankargouda died on 29 - 7 - 1906, leaving behind him his infant son, Shivabasan - gouda and his widow Neelawa. Shivabasangouda died on 4 - 12 - 1906, leaving behind him his mother, Neelawa, who succeeded to the inheritance, and she, in 1908, adopted Ujjangouda (defendant - respondent 1), who is in possession of the suit properties. Rudragouda (defendant - respondent 4), is his minor son. C. H. Patil (defendant - respondent 3) is the father - in - law of Ujjan - gonda, and is added as a party as the alienee of the suit property shewn in schedule "C."

[8] In February 1908, defendant - respondent 1 executed in favour of the appellant's adoptive mother (defendant - respondent 2) a maintenance deed, Ex. 145.

[9] On 30 - 1 - 1986, the widow of Limbangouda (Savantrewa) adopted the appellant to her deceased husband. As stated before, the factum of this adoption is not now in question.

[10] Defendant - respondent 1 pleaded that the adoption would not confer any right to the appellant to the estate in his possession, and that the right of defendant - respondent 2 to adopt, was extinguished in view of the maintenance deed.

[11] On behalf of the appellant, it is contended that since the Full Bench decision of the Bombay High Court on which the decision in this case was based has been reversed by the Privy Council, he is entitled to succeed in this, appeal. Whether this is so, or not is the first question for the Board to decide.

[12] It will appear from the facts stated above, that at the time of, the adoption of Ujjangouda (defendant - respondent 1) there