A widow's power to adopt is not extinguished upon the death of her son leaving a son and a widow, if the grandson dies without leaving a son or a widow.

JUDGMENT-An interesting question regarding the vexed controversy about the limits of a Hindu widows power to adopt is involved in this case. Respondent minor plaintiff, Vasant Abaji filed on October 10, 1961, through his guardian a suit against the defendant, who is the appellant in the above second appeal, for a declaration that the said plaintiff is the owner of the suit properties and for possession thereof with mesne profits. The plaintiff claimed to have been adopted by Gunabai the widow of Abaji on November 7, 1953.

2. The defendant resisted the suit denying the factum and the validity of the adoption. He challenged the validity of the adoption on the ground that Gunabais powers to adopt had come to an end, as Abaji, her husband had left behind a son Tulsiram who had two sons Bhaurao and Rajaram; and alt of them died leaving Muktabai the widow of Rajaram. In other words, although on the date of the adoption, the sons and grandsons were dead, the power of Gunabai which had come to an end was contended to have been distinguished forever.

3. The defendants contentions were overruled by the Civil Judge, Ausa, on September 26, 1963 and a decree was passed in favour of the plaintiff. That decree was confirmed in appeal by the Assistant Judge, Osmanabad, on November 30, 1964. The two Courts below held that Bhaurao and Rajaram, sons of Tulsiram having pre-deceased him and Tulsiram himself having died in 1947 and Rajarams widow Muktabai having re-married in 1948, Gunabai could validly adopt the plaintiff. The said concurrent findings are challenged in the above second appeal.

4. Civil Application No. 2265 of 1972 is filed by the appellant for leave to produce additional evidence in the form of extracts of death register relating to Rajaram and Tulsiram, issued by the Tahsildars office, Latur. The said extracts do show that Rajaram died on July 13, 1356 F, and Tulsiram died on june4, 1356 F. This application was filed in this Court on September 15,1972, 7 years after the above appeal was filed. The extracts appear to have been taken on September 13, 1972. The reason given for non-production of these extracts in the lower Courts is that the Police Patil of the village, who had maintained the Register of deaths, was murdered immediately after the police action and when the defendant asked the son of that Police Patil, the son could not give any· information. This is hardly a reason for non-production of the extracts which could have been easily obtained from the Tahsildars office. In any event, I do not find any reason to admit the additional evidence at this stage when Mr. Kulkarni, learned counsels for the respondent- plaintiff, says that he was served with the copies only on September 20, 1972. Such conduct Oil the part of the parties cannot be encouraged by condoning unnecessary delay and creating further delay, particularly in this case, as the defendant appears to be in possession of the property. Civil Application No. 2265 of 1972 is, therefore, rejected and the additional evidence sought to be produced by the appellant must be, therefore, ignored.

5. Even assuming for a moment that this additional evidence falsifies the findings recorded by the two Courts that Rajaram pre· deceased Tulsiram, I do not think that it would be sufficient to set aside the decrees passed against the appellant by the two Courts by law. The main point in this case is whether on November 7, 1953, when the adoption of the plaintiff took place, Gunabai, the widow of Abaji had Power to adopt him.

6. On behalf of the defendant, it was contended both in the Court and in the lower Court that in view of the decision of Supreme Court in Gurunath v. Kamlabai Kanchangauda,1 Gunabai could not adopt Vasant as she had a son and grandson and grand-sons widow notwithstanding the death of the son and grand-son before the adoption and re-marriage of the widow of Rajaram, Muktabai in 1948. It is true that after reviewing the various decisions dealing with the limits o

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