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Antu Navaji Salunke Vs. Yeshvant Bala Gaikwad - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 919 of 1928
Judge
Reported inAIR1932Bom430; (1932)34BOMLR811; 140Ind.Cas.258
AppellantAntu Navaji Salunke
RespondentYeshvant Bala Gaikwad
DispositionAppeal dismissed
Excerpt:
.....other surviving daughter made a gift of the whole property to defendant no. 1. subsequently the widow adopted the plaintiff, who sued to set aside the alienation :-;dismissing the suit, that the gift was valid as a surrrender by the widow being of the whole estate and the next reversioner having joined in the transaction:;rangasami gounden v. nachiappa gounden (1918) l.r. 46 i.a. 72 : s.c. 21 bom. l.r. 640, nobokishore sarma roy v. hari nath sarma roy (1884) i.lr. 10 cal. 1102, f.b., and rama nana v. dhondi murari (1923) i.l.r. 47 bom. 678 : s.c. 25 bom. l.r. 361. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act..........the plaintiff, who was the adopted son of one bala, sued to bet aside an alienation made by bala's widow jija in favour of her son-in-law defendant no. 1. the facts necessary for the disposal of the appeal are that bala died leaving a widow jija and two daughters chandra and ganga, of whom chandra was married to defendant no. 1. she died in 1915. in 1920 jija and ganga, the next reveraioner, both passed a deed of gift in favour of defendant no. 1. exhibit 17, dated june 4, 1920. in 1926 jija quarrelled with defendant no. 1, and took the present plaintiff in adoption on june 1, 1926. the plaintiff sued to set aside the alienation to defendant no. 1. the first court dismissed the suit on the authority of hem chunder sanyal v. sar-namoyi debi i.l.r. (1894) cal. 354 and chinnaewami pillai v......
Judgment:

Baker, J.

1. The facts of this appeal are simple. They raise a point of Hindu la v. The plaintiff, who was the adopted son of one Bala, sued to Bet aside an alienation made by Bala's widow Jija in favour of her son-in-law defendant No. 1. The facts necessary for the disposal of the appeal are that Bala died leaving a widow Jija and two daughters Chandra and Ganga, of whom Chandra was married to defendant No. 1. She died in 1915. In 1920 Jija and Ganga, the next reveraioner, both passed a deed of gift in favour of defendant No. 1. Exhibit 17, dated June 4, 1920. In 1926 Jija quarrelled with defendant No. 1, and took the present plaintiff in adoption on June 1, 1926. The plaintiff sued to set aside the alienation to defendant No. 1. The first Court dismissed the suit on the authority of Hem Chunder Sanyal v. Sar-namoyi Debi I.L.R. (1894) Cal. 354 and Chinnaewami Pillai v. Appaawami Pillai I.L.R. (1918) Mad. 25. On appeal, the decree of the lower Court was Reversed by the Assistant Judge of Satara on the ground that there could not be any surrender by the widow in favour of a total stranger like defendant No. 1, and he, therefore, awarded the plaintiff's claim. The defendant has made this second appeal, and two points were raised. The first was that the adoption of the plaintiff was not proved, because it was not shown that there had been giving and taking, which is a necessary formality even among Shudras, and, secondly, on the ground in law that the surrender of Jija in favour of defendant No. 1 of the whole estate could be supported.

2. The first point may be disposed of in a few words. I have read the depositions. Jija says she took the plaintiff on her lap after asking his natural father to give him in adoption. The father says he gave him, and in the absence of any cross-examination on the point, I take it that the necessary ceremony of giving and taking has been performed.

3. As regards the second point, although various cases have been quoted by the learned advocates on either side, the matter is very simple, and certainly covered by the case on which the learned Assistant Judge has relied, viz., the well-known PrivyGounoil case of Rangasami Gounden v. Nachiappa Gounden I.L.R. (1918) Mad. 523: L.R. 46 IndAp 72 21 Bom. L.R. 640 It is necessary to draw a distinction between an alienation by a widow consented to by the reversioner, which is regarded as proof of legal necessity, and a case like the present where there is a surrender by the widow of the whole estate in favour of the next reversioner. That distinction is drawn in the case referred to, Rangasami Gounden v. Naohiappa Gounden. The headnote begins by saying-

As to the power of a Hindu widow to deal with the property of her hug-band to which she has succeeded for a life-estate on his death, there is a dis-tinotion between the power of surrender or renunciation, which is the first head of the subjeot, and the power of alienation for certain specific purposes, as necessity, which is the second.

4. We are here concerned with the first, and it is of course established law, as laid down in that case, that an alienation by a widow of her deceased husband's estate held by her may be validated if it can be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner orreversioners at the time of the alienation. In such circumstancer the question of necessity does not fall to be considered. But the sur-render must be a bona fide surrender and not a device to divide (sic) not have been impugned, and if Ganga by a second deed transferred to defendant No. 1, then, the daughter being in Bombay a fall owner, that transaction would be good also, and the fact that the two transactions are contained in the same deed does not affect the principle, which, in my opinion, is in accordance with the view taken in Rangasami Gounden v. Naehiappa Gounden, That is quite sufficient for the decision of the case. At the time this transfer was made, the plaintiff was not adopted, but that would Hot make any difference, because he will be bound by the transaction entered into by the widow, as is shown by the ruling in Rama Nana v. Dhondi MurariI.L.R. (1923) Bom. 678 : 25 Bom. L.R. 361 The facts of that case are very similar to those of the present case. There a Hindu widow surrendered her husband's estate to her daughter, who was the next reversioner and who agreed to maintain the widow as long as she lived. The daughter having died first, the widow adopted the plaintiff. In a Suit by the plaintiff to recoverpossession of the property from the daughter's husband, it was held that the plaintiff was not entitled to question the surrender, and that the surrender was valid. The plaintiff, therefore, the subsequently adopted son, is bound by this transaction, and the view of the first Court must, therefore, be upheld, and the decree of the lower appellate Court set aside, and that of the first Court restored with costs throughout.


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