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Full Bench Opinion Summary — Chagla, C.J.

Factual and Procedural Background

The opinion concerns title to an estate originally of one Balappa. Balappa died in 1908 leaving a widow, Shrimati, and a daughter, Ratna (who died in 1911). On 24 June 1920 Shrimati executed a deed of surrender by which she surrendered the whole estate of her husband to Vasant, who was Ratna's son. Vasant died on 1 July 1935, leaving a widow, Rajubai. Rajubai adopted the plaintiff on 4 March 1936. Separately, Shrimati adopted the person styled in the record as defendant No. 2 on 15 September 1935.

The plaintiff filed this suit claiming the property that had been surrendered by Shrimati under the 1920 deed. The Trial Court dismissed the plaintiff's suit. The plaintiff appealed, and the First Appeal before Mr. Justice Gajendragadkar and Mr. Justice Vyas referred the following question to the Full Bench:

“If, prior to his adoption a valid surrender has been effected by his adoptive mother, can the subsequently adopted son divest the property which has already vested in the surrenderee?”

The opinion is delivered by Chief Justice Chagla for the Full Bench, which analyses (i) the validity of the September 1935 adoption and (ii) the legal nature and effect of a widow's surrender under Hindu law, and then answers the referred question.

Legal Issues Presented

  1. If, prior to his adoption, a valid surrender has been effected by his adoptive mother, can the subsequently adopted son divest the property which has already vested in the surrenderee?
  2. What is the true legal nature of a surrender by a Hindu widow (i.e., is it an act of alienation or an act of self-effacement/renunciation), and what is the effect of a subsequent adoption on a title that has arisen as a result of such a surrender?

Arguments of the Parties

Arguments advanced by Mr. Datar (for the respondent side)

  • Mr. Datar contended that the widow had a legal right to surrender her husband's estate to the next reversioners and that such a surrender could not be defeated by the mere possibility of a subsequent adoption.
  • He relied on a line of decisions of the Bombay High Court (notably Rama Nana v. Dhondi Murari and cases that followed it) which held that a subsequent adoption will not divest a title created in the next reversioners by a prior surrender.
  • He further relied on Privy Council authority (notably Veeranna v. Sayamma) for the principle that the validity of an alienation must be determined at the date of the alienation and not by a subsequent adoption.
  • He also relied on other Privy Council and High Court passages which use language suggesting the widow "conveys absolutely" or "destroys her life estate" to argue that surrender confers a title which the adopted son cannot displace.

The opinion sets out Mr. Datar's submissions in detail. The opinion does not contain a comparably detailed, articulated set of arguments by the plaintiff's counsel in the same manner; the plaintiff's position is principally reflected in the referred question and in the Full Bench's analysis accepting the prospective adopted son's position.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Amarendra's case That in considering validity of adoption the Court must give importance to spiritual rather than temporal considerations (i.e., the standards of adoption law). The Court relied on this principle to treat Shrimati's adoption of defendant No. 2 on 15 September 1935 as a valid adoption.
Natvarlal Punjabhai v. Dadubhai (Full Bench) Holds that surrender by a Hindu widow is primarily a renunciation/self‑effacement of her life interest, not a conventional transfer; the destruction of the life estate is the basic principle. The Court cited this Full Bench formulation to support the view that surrender operates by extinguishing the widow's life interest and that the next reversioner's title arises by succession, not by the widow's conveyance.
Natvarlal v. Dadubhai (Supreme Court) Described the doctrine of surrender as analogous to the widow's death: by voluntary self‑effacement she removes the obstacle to succession and the heirs step in by operation of law. The Court relied on the Supreme Court's language to reinforce that surrender effects succession by operation of law and is not essentially an act of alienation conferring title on a grantee.
Pandu Lote v. Shrimati (Full Bench) Considered a surrender embodied in a document and held that where the document contravenes law it is void; left open the specific question of the right of an adopted son to challenge a surrender. The Court distinguished that Full Bench decision, noting that the validity of the document is separate from the underlying doctrine of surrender and emphasizing that the question now before the Full Bench had been expressly left open previously.
Rama Nana v. Dhondi Murari Held that a subsequent adoption will not divest the title created in the next reversioners by a prior surrender; the decision rested on the notion that adoption lacks retrospective effect (constructive pregnancy). The Court concluded Rama Nana was wrongly decided because it treated the surrenderee's title as founded on an alienation by the widow rather than on succession; the Full Bench reverses that position and departs from Rama Nana.
Yeshvanta v. Antu; Pandurang v. Ishwar; Krishna Mhatarba v. Baban Cases that followed the principle in Rama Nana that a subsequent adoption does not divest the reversioner's title. The Court noted these cases followed Rama Nana without independent reasoning and therefore did not persuade the Full Bench to adhere to Rama Nana's approach.
Shantaram Abasaheb Powar v. Keru Krishna Koli (Division Bench) Took the same view as Rama Nana and characterized surrender as operating not as succession but as an act of alienation. The Full Bench regarded that conclusion as erroneous, reiterating the position that surrender is fundamentally extinction of the widow's life estate, not an alienation.
Vishnu Pandu v. Mahadu Baburao Expressed that surrender was not strictly an alienation but a voluntary extinction of the widow's estate; relinquishment would not bring the case within the rule that an heir's lawful alienation confers indefeasible title against an adopted son. The Full Bench approved this characterization as correctly stating the principle underlying surrender by a widow.
Babanna v. Channappa Held that surrender by a widow to reversioners operates to defeat a subsequently adopted son because the widow has, in effect, voluntarily operated her own death and accelerated the reversioners' interest. The Full Bench disagreed with the reasoning as stated there: if the widow merely accelerated succession by inheritance, that interest can still be displaced by a subsequently adopted son under the law as expounded by later Privy Council decisions.
Veeranna v. Sayamma (Privy Council) Principle that the validity of an alienation is to be judged at the date of the alienation and not by a subsequent adoption; applied to lawful alienations by last male holders. The Full Bench accepted the principle for cases of lawful alienation by a last male holder but distinguished it from a widow's surrender, holding that the widow's act is not an alienation in the same sense and therefore the Privy Council principle does not govern the present situation.
Behari Lal v. Madho Lal (Privy Council) Uses the expression that the widow can "convey absolutely" and "destroy her life estate" — language sometimes used to describe surrender. The Court observed that the Privy Council's language sometimes loosely used "alienation," but noted that in the same passage Their Lordships emphasised withdrawal of the widow's life estate; the Full Bench cautioned against reading such phrases to mean that surrender is, in substance, a regular alienation that an adopted son cannot challenge.
Rangasami Gounden v. Nachiappa Gounden Example where the Privy Council used the term "alienation" loosely when describing the widow's relinquishment of her life interest. The Full Bench cited this to support its point that the term "alienation" has sometimes been used loosely and should not be read to displace the characterisation of surrender as renunciation leading to succession.

Court's Reasoning and Analysis

The Court's analysis proceeds in distinct steps, each grounded in the text of prior authorities and the facts before the bench:

  1. Validity of the adoption: The Court accepts (citing Amarendra's case) that the adoption of defendant No. 2 by Shrimati on 15 September 1935 was valid. The Full Bench therefore treats the adoption as legally effective.
  2. Nature of surrender under Hindu law: The Court carefully examines what a "surrender" by a Hindu widow really is. It adopts the view (from Natvarlal Punjabhai v. Dadubhai and the Supreme Court's exposition) that surrender is primarily an act of renunciation or self‑effacement — a voluntary destruction of the widow's life interest — rather than primarily a transfer or alienation whose legal effect is to create a grantee's title.
  3. Consequence for the reversioner's title: Because surrender operates by extinguishing the widow's life estate and thus opening succession by operation of law, the title that vests in the next reversioners is a title by inheritance (as heirs), not a title derived from a conveyance by the widow. Hence the foundation of the reversioner's title is succession to the last male holder.
  4. Distinction from lawful alienation: The Court draws a contrast with cases of alienation by a limited owner for legal necessity where the alienee's title depends on the widow's alienation and may be protected. That concept of alienation does not describe a surrender as properly understood.
  5. Retrospective effect of adoption and its consequence: The Court accepts the well‑established retrospectivity of a valid adoption — the adopted son is deemed by law to have been in existence at the death of the husband. Where the adopted son thereby occupies the position of preferential heir against other claimants, the adopted son can displace any title that arises by reason of inheritance (i.e., succession). Thus, if a reversioner's title is purely an inheritance effected by the widow's self‑effacement, a subsequent valid adoption by the widow can divest that title.
  6. Treatment of precedents that took the opposite view: The Court analyzes the contrary line of High Court authorities (notably Rama Nana) and finds that those decisions proceeded on an erroneous assumption that the reversioner's title depended on an alienation by the widow. The Full Bench considers certain Privy Council passages and more recent High Court decisions and concludes that the better view (consistent with the Privy Council and other authorities) is that surrender is extinguishment of the widow's life estate and thus that a subsequently adopted son can displace a title arising by inheritance.
  7. Stare decisis and departure: The Court acknowledges the force of stare decisis and the need for legal stability, but explains that the change is not a radical innovation; rather, it brings the Court's law into conformity with recent Privy Council decisions and with the proper understanding of surrender and adoption. On that basis, the Full Bench departs from the Rama Nana line of decisions.
  8. Conclusion of analysis: Because the reversioner's title in the present facts arose by inheritance following the widow's surrender, and because a subsequent valid adoption is retrospectively effective to make the adopted son a preferential heir, the adopted son can divest the title vested in the surrenderee.

Holding and Implications

Holding: The Full Bench answered the referred question in the affirmative. In the words of the Court, an adopted son can divest a title which the next reversioner had as a result of a prior surrender by the adoptive mother, where the reversioner's title arose by inheritance consequent upon the widow's self‑effacement.

Direct implications for the parties in this case:

  • The legal consequence is that the plaintiff (the subsequently adopted son through Rajubai) can challenge and displace the title that had vested in Vasant (the surrenderee) if that title arose by inheritance following the widow's surrender.
  • The Full Bench thereby departs from and reverses the effect of the earlier decision in Rama Nana v. Dhondi Murari (and subsequent decisions that followed it), holding that those precedents were founded on an incorrect assumption about the nature of surrender.

Broader doctrinal implication noted by the Court:

The Court explained that the decision is not intended as an arbitrary disturbance of settled titles but rather as a correction to bring the High Court's law into conformity with the Privy Council's exposition of adoption and with decisions that characterize surrender as an act of self‑effacement rather than a conventional alienation. The Full Bench thus treats its ruling as aligning local precedent with the correct principles of Hindu law as accepted by higher authorities.

Answer accordingly.
K.B.S

    Bahubali Vasant Katage v. Gundappa Tatya Duge

    Chagla, C.J:—

    One Balappa died in 1908 leaving a widow Shrimati and a daughter Ratna who died in 1911. On June 24, 1920 Shrimati executed a deed of surrender by which she surrendered the whole estate of her husband to Vasant, son of Ratna. Vasant died on July 1, 1935, leaving a widow Rajubai. Rajubai adopted the plaintiff on March 4, 1936. Shrimati adopted defendant No. 2 on September 15, 1935, and the plaintiff filed this suit claiming the property which had been surrendered by the widow under the deed of surrender. The trial Court dismissed the plaintiff's suit. The plaintiff appealed to this Court. The First Appeal came before Mr. Justice Gajendragadkar and Mr. Justice Vyas and they have referred to the Full Bench the following question:

    “If, prior to his adoption a valid surrender has been effected by his adoptive mother, can the subsequently adopted son divest the property which has already vested in the surrenderee?”

    Now, we do not think it can be disputed that the adoption of defendant No. 2 by Shrimati on September 15, 1935 was a valid adoption. Amarendra's case(20) laid down that in considering the validity of adoption the Court has to give importance to spiritual and not temporal consideration; and it cannot possibly be suggested that Shrimati was not a potential widow who had the right to adopt, which right she exercised on September 15, 1935. The real question that we have to consider is, what is the effect of this adoption upon the deed of surrender executed by the widow on June 24, 1920, and upon the right of Vasant who got the property as the heir of his grandfather Balappa? In order to decide this question one has got to determine the true nature of a surrender under Hindu law. A widow stands between her husband's estate and her husband's heirs and by an act of self-effacement she destroys her own life estate, removes the obstacle that exists between her husband's estate and her husband's heirs, accelerates the succession, and makes it possible for her husband's heir to succeed to her estate. It is very important to note that the title of the next reversioners does not depend upon any act of transfer or conveyance by the widow. As soon as the widow effaces herself and destroys her life interest by operation of law, the next reversioners succeed to the husband's estate. Therefore the title of the next reversioners depends not upon any conveyance or transfer by the widow, but it depends upon their inheriting to the estate of the husband. Therefore, title which is vested in the next reversioners is a title by inheritance and not by a conveyance or transfer executed by the widow. It is also pertinent to bear in mind the vital distinction between an alienation by a widow for legal necessity and a surrender by a widow. In the case of legal necessity the widow alienates the property of her husband and the title of the alienee depends upon the alienation by the widow supported by justifying necessity; whereas in the case of a surrender it is not the alienation which is the foundation of the title of the next reversioner, but, as already pointed out, it is the fact that he is the heir of the husband and the fact that the succession has opened up by operation of law that constitutes the foundation of his title. If therefore the title of the next reversioner is based upon inheritance, the question is, what is the effect of a subsequent adoption by the widow?

    Now, it is well settled that a subsequent adoption has a retrospective effect in the sense that in the eye of the law the window must be deemed to be enciente and the adopted son must be deemed to be in existence at the death of the husband. It is rue any lawful alienations made by the limited owner would be binding upon the adopted son. It is equally true that a last male holder would be entitled to deal with the property as his own without taking into consideration the possibility of a future adoption, and in such a case the adopted son would take the property subject to the alienation made by the last male holder. But it is equally well established that an adopted son would be able to displace any title which arises by reason of inheritance. If in this case the title of Vasant arose by reason of inheritance, the question is whether the adopted son could displace that title by reason of the fact that he was adopted by Shrimati. There is no doubt that if the adopted son was in the eye of the law in existence at the death of Balappa, he was a preferential heir to Balappa's daughter's son, Vasant and there seems to be no reason in principle whatsoever why defendant No. 2 as the adopted son of Balappa should not in law be entitled to displace the title vested in Vasant by inheritance. Once the distinction between title by alienation and title by inheritance is borne in mind, this case presents no difficulty whatever. The decisions that have taken a contrary view, with respect, have proceeded on an erroneous assumption that Vasant's title depended upon an alienation made by the widow and not upon the succession opening up by operation of law and Vasant succeeding as the heir of Balappa. If the act of surrender on the part of Shrimati was an alienation, then only the further question would arise whether the alienation was a lawful alienation which was binding upon the adopted son in law. But if the act of Shrimati was self-effacement and a voluntary destruction of her own life estate, then no question of alienation arises.

    Now, we had occasion to consider the nature of surrender in Hindu Law in a Full Bench in Natvarlal Punjabhai v. Dadubhai,(21) and there we pointed out that

    “Under Hindu law a surrender by a Hindu widow is not so much a transfer or an assignment of her life interest to the next reversioners as a renunciation in favour of the next reversioners. The basic principle of surrender is the destruction by the widow by her voluntary act of her life interest in her husband's estate. The act of transfer or the act of conveyance is a subsidiary thing to which the same importance cannot be attached as the destruction of the life estate.”

    This view has found favour in a recent decision of the Supreme Court in Natvarlal v. Dadubhai.(22) As pointed out by Mr. Justice Mukherjea at p. 66,

    “The whole doctrine of surrender is based upon this analogy or legal fiction of the widow's death. The widow's estate is an interposed limitation or obstruction which prevents or impedes the course of succession in favour of the heirs of her husband. It is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband's estate altogether. If she does that, the consequence is the same as if she died a natural death and the next heirs of her husband then living step in at once under the ordinary law of inheritance.”

    Further on, the learned Judge says (p. 66):

    “Thus surrender is not really as act of alienation by the widow of her rights in favour of the reversioner. The reversioner does not occupy the position of a grantee or transferee, and does not derive his title from her. He derives his title from the last male holder as his successor in law and the rights of succession are opened out by the act of self-effacement on the part of the widow which operates in the same manner as her physical death.”

    There was another Full Bench constituted recently which had also to consider the question or surrender, and the judgment is reported in Pandu Lote v. Shrimati.(23) There we were considering the specific case of a surrender being effected through a document, and the only question that we considered and decided was that the document on which reliance was placed by the defendant for his title was a document which contravened the law and was therefore void. We pointed out that as the document itself was void, no further question arose as to whether the surrender itself was valid or not valid according to Hindu law. It may be, as we pointed out in that judgment, that a Hindu widow may embody her act of self-effacement in a document, may get the document registered, and the question may arise whether such a document is valid or void in law. But it would be fallacious to suggest that the title of the next reversioner would arise by reason of this document. The document would merely embody the transaction as far as the widow herself was concerned, viz., the act of self-effacement or the act of extinguishing her own life estate. If the document was valid and if the act of the widow was done according to law, then the law would operate and the title of the next reversioner would arise, not as a result of the document, not as a result of any transfer or conveyance made by the widow, but as a result of the succession opening up and the next reversioner succeeding to the estate of the last male owner. In that Full Bench the question as to the right of the adopted son to challenge the surrender was also referred to us, but we expressly left that question open and although we may have expressed some tentative opinion, we did not decide the question which has now arisen and for the decision of which this Full Bench has been constituted.

    Now, Mr. Datar is right when he urges that there is a long line of authorities of this Court which has taken the view that a subsequent adoption will not divest the title created in the next reversioners as a result of the surrender, and this long line of authorities owes its validity and its force to the decision of Sir Norman Macleod and Mr. Justice Crump in Rama Nana v. Dhondi Murari.(24) In that case the learned Chief Justice points out at page 689:

    “As soon as we get rid of the notion of constructive pregnancy in the case of a widow with power to adopt, the result of an adoption upon prior alienations by the widow can be determined without any difficulty.”

    Unfortunately, this notion of constructive pregnancy is the very notion which was subsequently accepted by the Privy Council and which revolutionized the whole law of adoption as understood by this High Court. Therefore, with respect, the very basis of the judgment of the learned Chief Justice is that an adoption cannot have retrospective effect, that it is wrong to assume that the adopted son was in existence at the death of the husband, and therefore the adoption cannot disturb titles which were created prior to the adoption; and when we turn to the judgment of Mr. Justice Crump, at page 691 he points out:

    “The effect of the surrender by the widow was that the then reversioner took an absolute estate and as the surrender was an act which is by Hindu law within the competence of the widow it is not easy to see any ground on which the adopted son can challenge it.”

    With respect to the learned Judge, what we have to consider is not the competence of the widow to surrender the estate of her husband. What we have to consider is, what is the title which the surrenderee gets, and that the learned Judge has not considered. Therefore, in our view Rama Nana v. Dhondi Murari was wrongly decided and does not state the correct law as to the right of an adopted son when there is a prior surrender by his adoptive mother. This case has been followed in Yeshvanta v. Antu,(25) Pandurang v. Ishwar,(26) and Krishna Mhatarba v. Baban.(27). We find in these judgments no reason given for the principle enunciated and the learned Judges have merely followed the judgment in Rama Nana v. Dhondi Murari(28).

    Then we come to a recent decision of a Division Bench in Shantaram Abasaheb Powar…(Original Plaintiff), v. Keru Krishna Koli…(Original Defendant), .*.(29) That is a judgment of Mr. Justice Sen and Mr. Justice Gajendragadkar. That has taken the same view as Rama Nana v. Dhondi Murari, and the ratio of that judgment is to be found in the judgment of Mr. Justice Sen at page 286:

    “Though a surrender operates by accelerating the reversion, i.e, the succession, it would appear to operate not as a case of succession but an act of alienation…”

    With respect, as we have already pointed out, it is not an act of alienation on the part of the widow that results in title being conferred upon the next reversioner, and therefore once we accept the position that the basic feature of a surrender is not alienation but extinction of the life estate of the widow and the succession opening up therefrom by operation of law, it is clear that the case just referred to must be held to have been erroneously decided.

    Then there is a later judgment in Vishnu Pandu v. Mahadu Baburao,(30) of Mr. Justice Rajadhyaksha and my brother Mr. Justice Shah, and in this judgment the learned Judges took a view contrary to the view taken in Rama Nana v. Dhondi Murari and the view which is acceptable to us, and in the judgment Mr. Justice Shah points out at p. 602:

    “It was not, strictly speaking, an alienation of the estate by Bayaja but a voluntary act of extinction of her own estate. Consequently the relinquishment would not have the effect of bringing the present case within the rule that where an heir to the estate of a sole surviving corparcener has alienated property for a lawful purpose, the alienee acquires an indefeasible title and is entitled to retain the property contrary to the claim of an adopted son by a widow of the joint family.”

    We are of the opinion that statement correctly sets out the principle underlying the act of surrender on the part of the widow.

    Mr. Datar also relied on a judgment of Sir Leonard Stone and Mr. Justice Divatia in Babanna v. Channappa,(31) and the learned Chief Justice at page 792 says:

    “The law is that a surrender or release by a widow of the whole of her estate and interest in the property of her deceased husband to the person or persons entitled in reversion operates to defeat a subsequently adopted son, because the widow has, so to speak, voluntarily operated her own death and thereby accelerated the interest of the reversioners.”

    With respect to the learned Chief Justice, if what the widow has done is to accelerate the interest of the reversioners by inheritance, then in view of the law as now settled by the Privy Council that is an interest which can certainly be displaced by the subsequently adopted son.

    It has been argued by Mr. Datar that the widow had the right in law to surrender her husband's estate to the next reversioners and that surrender cannot be defeated by the mere possibility of an adoption taking place subsequently. Mr. Datar asks us to apply the principle accepted by the Privy Council as laid down in the case of Veeranna v. Sayamma,(32) that the validity of an alienation has to be determined at the date of the alienation and not by a subsequent adoption. This argument again proceeds on the basis that the act of the widow constitutes an alienation. In the case of Veeranna v. Sayamma, what was emphasised was that the mere possibility of a subsequent adoption cannot prevent the last male holder from treating the property as his own, alienating it, and giving a good title to the alienee. It is difficult to understand how that principle can apply to the case of a widow who surrenders her husband's estate. In the first place, she is not alienating the property of her husband; in the second place, she is not conveying any title to an alienee. The adopted son is not seeking to defeat the title of an alienee; he is seeking to displace the title which arises by reason of inheritance.

    Mr. Datar has also relied on the expression used in some of the Privy Council cases which seem to suggest that Their Lordships looked upon the act of surrender as an alienation or a transfer or a conveyance. For instance, reference was made to the case of Behari Lal v. Madho Lal.(33) At page 32 this is what Their Lordships say:

    “It may be accepted that, according to Hindu law, the widow can accelerate the estate of the heir by conveying absolutely and destroying her life estate.”

    And what is emphasised is the expression used by Their Lordships “conveying absolutely.” But in the very next paragraph Their Lordships go on to say:

    “It was essentially necessary to withdraw her own life estate so that the whole estate should get vested at once in the grantee.”

    It must be borne in mind that in this case the Privy Council was not considering the right of the adopted son to divest the title of the next reversioner which arose as a result of surrender, and with respect to Their Lordships it is clear that in some of these cases e.g, Rangasami Gounden v. Nachiappa Gounden,(34) the expression “alienation” has been loosely used. The expression “alienation” is not used in the sense of a lawful alienation made by the widow which the adopted son cannot challenge as accepted by the authorities to which attention has already been drawn.

    It is indeed rather curious that no case of an adoption subsequent to a surrender has arisen for consideration in any other High Court than this Court, nor has the Supreme Court had occasion to consider this question and Mr. Datar has strongly pressed upon us not to depart from the view almost consistently held by this Court on the question of the right of the next reversioner as against the adopted son. Now, there is always force in the argument of stare decisis and a Court of law should never be in a hurry to alter well settled law which may result in disturbing titles based upon the law as understood by the litigant. But in reversing the decision in Rama Nana v. Dhondi Murari,(35) and in taking the view that an adopted son can divest a title which the next reversioner had, we are not really altering the law, but on the contrary we are bringing the law into conformity with the recent decisions of the Privy Council. As already pointed out, Rama Nana v. Dhondi Murari was decided at a time when the law of adoption was understood to be something very different from what ultimately the Privy Council expounded it to be, and therefore far from disturbing well settled law we are giving effect to principles which have been enunciated by the Privy Council in recent decisions and which are now accepted as the correct principles of Hindu law.

    The result therefore is that we must answer the question submitted to us in the affirmative.

    Answer accordingly.
    K.B.S
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    Bahubali Vasant Katage v. Gundappa Tatya Duge
    (Jan 19, 1954)