Judgment:
1. The L.Rs of the original plaintiff Lingappa, in a suit for partition, claiming half a share, is the appellant herein. The suit was dismissed by the Court below. Hence, the second appeal.
2. Claiming that one Kedari and his sons Bhima and Balu were the original owners of the suit property, it was alleged that all of them died in 1980 (sic), within a span of five days. Kedari's widow Siddalingawwa, survived representing that branch, and she took the plaintiff in adoption on 16-11-1937. Kedari and his brother Mahadu were members of the joint family and no partition took place between them. Mahadu was managing the family affairs and after him, his son Ningappa and after Ningappa's death, his younger brother Shivappa. There was a sham partition in 1941 without giving any share to Kedari's branch and it was therefore claimed that such partition was not binding on the plaintiff.
3. The second defendant, natural father of the plaintiff, admitted the claim, while the other defendants, that is, L.Rs of Shivappa and L.Rs of Ningappa. It was contended that the plaintiff was not adopted by Siddalingawwa and he was not entitled to the share. There was a partition between defendants 1 to 4, in 1938, and the plaintiff is entitled to the share to the property allotted to his natural son, the second defendant. The question of limitation was also raised. Holding the adoption as not proved, the suit was dismissed by the Trial Court. However, the appellate Judge holding the adoption is proved, held that the adoption is not valid in the eye of law. The partition also is held to be binding as the natural father the second defendant was allotted his share in all the joint family properties.
4. The question of law that is framed is:
'Whether the judgment of the learned District Judge is illegal for the reason that he has made out a new case not pleaded by the defendants when the validity of adoption had not been challenged by the defendants?'
5. The only question is whether the adoption is valid or not. If the adoption is found to be valid, then the plaintiff succeeds, otherwise the plaintiff must fail.
6. Ningappa had two sons by name Bhimsha and Balu, who were married and the said two daughters-in-law of Kedari were alive on the date of adoption of deceased Ningappa by Shivalingawwa, widow of Kedari. The question is whether the mother-in-law's power to adopt a son to her husband comes to an end when the daughter-in-law is alive. The answer is available in the dictum of the Supreme Court in Gurunath v Kamalabai, to the following effect:
'That the interposition of a grandson or the son's widow, competent to continue the line by adoption brings the mother's power of adoption to an end'.
This view of the Supreme Court is followed by the decision of the Full Bench of the erstwhile High Court of Hyderabad in Mukta Narahari v Mukta Rajaiah and Another, and also a bench decision of the High Court of Madras in Venkatalakshmi Ammal and Others v Jagannathan (minor) and Others.
This view also followed by Neelawwa and Another v Kallappa Basappa Nhavi and Others , to the effect that power of widow to adopt comes to end by the interposition of a son's widow whether the son dies before or after the death of his father.
7. In this case, no documentary or any other evidence is produced to find out whether the widows of the sons were remarried, even otherwise there is no question of revival of the right to adopt by the mother-in-law, even if the daughters-in-law are remarried.
8. In this legal view, confirming the concurrent findings of the Courts below, and answering the question against the appellant, the second appeal is dismissed.