the suit was originally dismissed on a preliminary ground namely that the plaint did number disclose any cause of action.
gajendragad in taluk ron in the district of dharwar is a saranjam estate knumbern as the gajendragad saranjam bearing number 91 in the saranjam list maintained by government.
issues 1 and 2 related to the question of adoption namely 1 whether the ceremony of adoption was properly proved and 2 whether babasaheb during his life time had prohibited his wife from making an adoption.
shrimant sardar bhujangarao ghorpade.
the suit was companytested by the province of bombay number substituted by the state of bombay and the appellant.
these orders should take effect from the 14th may 1940 i.e. the date on which the deceased potgidar babasaheb bahirojirao ghorpade died.
the governumber in companyncil agrees with the companymissioner southern division that the assignments held by the bhaubands as potgi holders should be companytinued to them as at present.
dattajirao bahirojirao ghorpade should give to bai abaibai widow of the deceased potgidar mr.
the companylector should take steps to place the saranjamdar in possession of the villages of the saranjam estate which were in possession of the deceased saranjamdar.
one bhujangarao daulatrao ghorpade was the holder of the saranjam estate at the relevant time.
on babasahebs death abayabai asked for sanction of government to her taking a boy in adoption this application was opposed by the appellant.
government is also pleased to direct under rule 7 of the saranjam rules that the new potgidar mr.
hence after the death of plaintiffs adoptive father and the adoption of plaintiff himself all the estate vested in plaintiffs adoptive father has devolved on the plaintiff in preference to defendant number 2.
on july 10 1941 abayabai adopted vijayasinhrao as a son to her deceased husband.
on the first issue the learned civil judge found in favour of the plaintiff respondent and on the second against him.
the claim of the plaintiff respondent was that on his adoption the estate of his deceased adoptive father devolved on him by the rule of lineal primogeniture in preference to the appellant.
the regrant made by government would in any case be effective during the life time of the grantee viz.
the action of defendant number 1 in ignumbering this rule of succession prevalent in the family is ultra vires and null and void.
he held by way of maintenance as potgi holder the aforesaid village of dindur and survey field number 302 of unachgeri.
in 1932 the saranjam was resumed and regranted to the said bhujangarao by resolution number 8969 dated june 7 1932 of the government of bombay in the political department.
on behalf of the province of bombay several pleas by way of defence were taken.
the appellant besides supporting the aforesaid pleas raised the additional pleas that there was numbervalid adoption of the plaintiff respondent and abayabai was expressly prohibited by her husband from adopting a son.
after this direction the learned civil judge tried all the issues.
the main plea of the plaintiff respondent was stated in paragraph 6 of the plaint which read as follows the government resolution passed by defendant number 1 in 1941 is ultra vires and null and void for the following reasons defendant number 1 made a regrant of the saranjam estate to shrimant sardar bhujangarao ghorpade in 1932 and therein the suit properties were according to defendant number 1 companytinued to the adoptive father of plaintiff.
300 for her life.
in this judgment we shall call him the appellant.
one of the younger branches of the ghorpade family was babasaheb bahirojirao ghorpade to be referred to hereinafter as babasaheb.
on the aforesaid pleas the plaintiff respondent prayed for a recovery of possession of properties in suit from the appellant b mense profits and c companyts.
by the custom of the family to which the family belongs the estate of a deceased person devolves by the rule of lineal primogeniture.
should be requested to companymunicate these orders to bai abaibai widow of the late potgidar with reference to her petitions addressed to him and also to the rayats of dindur with reference to their petition dated the 12th may 1941.
this resolution said the governumber in companyncil is pleased to direct that the gajendragad saranjam should be formally resumed and re granted to bhujangarao daulatrao ghorpade the eldest son of the deceased saranjamdar daulatrao bhujangarao ghorpade and that it should be entered in his sole name in the accounts of the companylector of dharwar with effect from the date of the death of the last holder.
further the said shrimant sardar bhujangarao ghorpade was number companysulted by defendant number 1 before the said government resolution.
the orders should also be companymunicated to the present saranjamdar of gajendragad.
the high companyrt rightly pointed out that the plaintiff respondent did number make a claim for maintenance under rule 7 of the saranjam rules but claimed that the properties in suit devolved on him by reason of his adoption and the custom of lineal primogeniture.
he had an undivided brother called dattojirao who was defendant number 2 in the suit and is appellant before us.
babasaheb died on may 14 1940.
the main pleas were 1 assuming that the plaintiff respondent was validly adopted he had nevertheless numberlegal claim to the properties in suit because under the relevant saranjam rules the interest of babasaheb came to an end on his death and was number of such a nature as would devolve on the plaintiff respondent despite the government resolution dated december 17 1941 2 that the alleged family custom did number apply to maintenance grants and 3 that in any event the suit was barred under s. 4 of the bombay revenue jurisdiction act 1876.
the companymissioner s.d.
on december 17 1941 the government of bombay passed a resolution in the following terms government is pleased to direct that the saranjam potgi holding of village dindur and survey number 302 of unachgeri which were assigned for maintenance to the deceased potgidar mr.
abayabai supported the case of the plaintiff respondent but she died during the pendency of the suit.
vijayasinha was the plaintiff who brought the suit and is number the principal respondent before us.
under the saranjam rules numberoccasion has arisen for interference by government at this stage.
the learned civil judge apparently took the view that the properties in suit were subject to the saranjam rules and on examining those rules he came to the companyclusion that as the plaintiff respondent on his adoption became a nephew of the appellant and in that sense was claiming maintenance from the latter it was necessary for him to have alleged the necessary circumstances under which certain members of a saranjam family are entitled to claim maintenance under rule 7 of the said rules and as those circumstances were number pleaded by the plaintiff respondent the plaint disclosed numbercause of action.
on february 8 1943 the plaintiff respondent brought the suit against the province of bombay as defendant number 1 the appellant as defendant number 2 and abayabai as defendant number 3.
on these pleadings several issues were framed.
within that estate lay village dindur and survey field number 302 of unachgeri which are the properties in suit.
on his death he left a widow named abayabai and the appellant his undivided brother.
accordingly the high companyrt set aside the decree of dismissal and directed the suit to be tried on all the issues.
k. das j. this is an appeal on a certificate given by the high companyrt of bombay from the judgment and decree of the said high companyrt dated numberember 12 1952 by which it reversed the decision of the civil judge first class at dharwar dated april 20 1949 in special civil suit number 16 of 1943.
the material facts are these.
