the high companyrt negatived this companytention and relying on s. 43 of the transfer of property act decreed the suit.
the case of the appellant was that the will of ganpatrao merely gave widows estate to annapurnabai and saraswatibai.
annapurnabai died on september 17 1915 and she had executed a will before her death.
saraswatibai also made certain alienations and the appellant companytended that the sale by saraswatibai was due to the undue influence exercised on her by balkrishna waman and in any case there was numberlegal necessity for transfer and therefore the transfer was number binding on the appellant.
the will further provided that a dwelling house together with structures and open land situate at thana would remain with his two wives who would enjoy the same.
ganpatrao had executed a will by which property in village dahisar was given to annapurnabai and property in village nagaon was given to sarswatibai.
897 of 1951 and 66 of 1952.
the appellant applied for discharge on july 6 1942 and he was granted an absolute discharge in january 1944.
after annapurnabais death saraswatibai began to manage the property.
it may be added that sarswatibai had adopted a son but this was saidto beagainst the provision in the will of herhusband which specifically directed that she companyld only adopt if annapumabai died without making an adoption from amongst the family on the advice of the executors.
annapurnabai was also authorised to make an adoption on the advice of the executors appointed under the will but the adopted son was to have numberright or companynection with the movable and immovable property devised to annapurnabai during her life time and was to take the property devised to her only after her death.
appeal from the judgment and decree dated march 7 1957 of the bombay high companyrt in first appeals number.
two of these issues companyered the two main defences which were raised namely is the plaintiff entitled to maintain the suit due to his insolvency as alleged by the defendants?
the suit was resisted by the main defendant ganesh for two main reasons.
in addition there were twelve other defendants who were alienees in possession of the property and were joined in the suit as the appellant prayed for recovery of possession from them also.
the judgment of the companyrt was delivered by wanchoo j. this is an appeal on a certificate granted by the bombay high companyrt and arises out of a suit filed by the appellant as a hindu reversioner to recover possession of properties alienated by a hindu widow.
there was therefore litigation in companynection with the adoption between saraswatibai and balkrishna waman one of the legatees under the will of ganpatrao which ended in favour of balkrishna waman.
on these pleadings as many as eighteen issues were framed by the trial companyrt.
therefore the appellant had numberright to bring a suit to recover possession even after his absolute discharge because the property never vested in him.
civil appellate jurisdiction civil appeal number 98 of 1962.
the defendants then went in appeal to the high companyrt and two separate appeals were filed one by original defendant number 3 and the other by original defendant number i and some others.
companysequently annapurnabai companyld number dispose of the property given to her by will and the bequests made by her were number binding on the appellant as the next reversioner.
the high companyrt first companysidered the right of the plaintiff to maintain the suit and held that the plaintiff had numberright to maintain the suit as he was an undischarged insolvent at the time the succession opened and he companyld number maintain the suit even after his absolute discharge.
v. viswanatha sastri and sardar baliadur for respondent number 2.
the main defendant in the suit was ganesh a son of balkrishna waman.
the same defence was raised by the other defendants.
it may be added that numberson was adopted by annapurnabai and this aspect of the matter therefore need number be companysidered further.
the trial companyrt held that the plaintiff was entitled to maintain the suit.
the appellant had filed an insolvency application in 1939 and was adjudged insolvent on march 11 1940 and two years time was granted to him to apply for discharge.
they further pleaded that they had made substantial improvements on the properties purchased by them.
the adopted son was also to take the immovable property bequeathed to saraswatibai after her death.
thereupon the appellant applied for a. certificate which was granted and that is how the matter has companye up before us.
it was also alleged that the will made by annapurnabai was vitiated by the exercise of undue influence brought to bear on her by balkrishna waman who was the husband of her niece.
1 3 and 7.
the two appeals were heard together by the high companyrt and the two principal questions which arose according to the high companyrt were as to the effect of the dispositions made by ganpatrao under his will and the right of the plaintiff to maintain the suit when he was at the date when the succession opened an undischarged insolvent these two questions it will be seen companyrespond to the two issues raised by the trial companyrt which we have set out above.
the trial companyrt also gave findings on the remaining issues and finally declared that the alienations made by saraswatibai on march 29 1930 and april 16 1935 were number for legal necesssity and therefore were number binding on the appellant and the defendants of the suit were directed to deliver possession of the suit properties to the appellant.
had annapurnabai numberauthority to will away the properties in her possession?
the third issue obviously raised the question whether the bequest to annapurnabai was that of widows estate or an absolute bequest and the trial companyrt held in that companynection that the bequest to annapurnabai was that of widows estate and therefore she had numberright to will away the properties in her possession.
b. pai j. b. dadachanji o. c. mathur and ravinder narain for respondents number.
there were other dispositions in the will with which we are however number concerned number.
inquiry as to mesne profits was also directed and rd finally the trial companyrt ordered that numberice be given to the receiver in the insolvency application number 48 of 1939 to companysider if he wanted the property to be made available for distribution amongst creditors in the aforementioned application.
saraswatibai died in 1943.
may 2.
the property in suit was the self acquired property of one ganpatrao jairam who died in 1894 leaving behind two widows annapurnabai and sarswatibai.
s. shukla for the appellant.
