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Giriowa Vs. Bhimaji Raghunath - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom58
AppellantGiriowa
RespondentBhimaji Raghunath
Excerpt:
.....a settlement of a family dispute must, according to a recognized principle, be supported, as far as possible, by the courts, and we think that it embodies, as a part of the compromise arrived at a perfectly distinct, though not express, recognition of giriowa's right as that of a widow of a brother separated in interest from raghunath. the family therefore might well have become extinct had not giriowa replenished it as she has done, by adopting pandurang......of the defendant giriowa, his brother raghunath endeavoured to appropriate the whole of the vatan estate. giriowa appealed to the revenue authorities, and then raghunath , yielded to an assertion of her right to a separate moiety of the estate. the terms of their agreement are embodied in the document (exhibit no. 55) which was produced at the trial by the plaintiff bhimaji, son of raghunath. by this agreement it is settled that on account of her share giriowa is to enjoy certain parts of the property while raghunath retains his. it is further said that she is to enjoy the part specified during her life, and not to trouble raghunath by any further complaints. this document cannot be reasonably construed otherwise than as fully admitting giriowa's ' separate right as owner on an equality.....
Judgment:

West, J.

1. In this case it appears that after the death of Balaji Kulkarni, husband of the defendant Giriowa, his brother Raghunath endeavoured to appropriate the whole of the vatan estate. Giriowa appealed to the Revenue authorities, and then Raghunath , yielded to an assertion of her right to a separate moiety of the estate. The terms of their agreement are embodied in the document (exhibit No. 55) which was produced at the trial by the plaintiff Bhimaji, son of Raghunath. By this agreement it is settled that on account of her share Giriowa is to enjoy certain parts of the property while Raghunath retains his. It is further said that she is to enjoy the part specified during her life, and not to trouble Raghunath by any further complaints. This document cannot be reasonably construed otherwise than as fully admitting Giriowa's ' separate right as owner on an equality for the time at least, with Raghunath himself; and her ownership implies a previous separation between her husband Balaji and Raghunath. The language which sets forth that she is to hold and enjoy far life, merely describes, according to the notions of the parties, the ordinary estate of a Hindu widow; it does not impose any restriction on the exercise of her powers As a widow she could not deal with the estate beyond her own life, save under special circumstances; but as a widow of a Hindu separated from his brother in Sacra and estate, she could adopt a son, and this right, even if she could validly resign it, she does not by exhibit 55 resign. That document being a settlement of a family dispute must, according to a recognized principle, be supported, as far as possible, by the Courts, and we think that it embodies, as a part of the compromise arrived at a perfectly distinct, though not express, recognition of Giriowa's right as that of a widow of a brother separated in interest from Raghunath. The fact of the separation thus be-'. came an element of the conclusion arrived at and of the jural relation between the parties. It has been acted on for about twenty-eight years, and Raghunath's son is not at liberty now, after be long a subsistence of a state of things resting on the agreement, to set up a. right contradicting it-The Collector of Madura v. Veeracamoo Ummal 9 M.I.A., 446 Bruce v. Bainbridge 2 B.& B. 128.

2. Giriowa, as the widow of Balaji separated in interest from Raghunath, might adopt a son without the sanction of Raghunath, or of his son Bhimaji, the plaintiff. Her motives are not so plainly spiteful towards her husband's family, so tainted with unconscientiousness that the boy adopted (Pandurang) could not -properly be given or taken by her. The ordinary presumption in favour of honesty and proper feeling where a duty has apparently been done must prevail. The fact that the boy Pandurang is son of the adoptive mother's brother is not relied on as unfitting him for adoption, the case being one from the Southern Marathji country. A long period was allowed to pass (25 years, or more) from the husband's death before she adopted, but this would not existinguish her power, or rather her duty, to adopt in circumstances calling for an adoption. During Raghunath's life he had a son to continue the family. Now Bhimaji is sonless and a leper. The family therefore might well have become extinct had not Giriowa replenished it as she has done, by adopting Pandurang.

3. The adoption thus appears in all respects above question by Bhimaji, and rejecting his claim, we reverse the decrees of the lower Courts, with all costs on the respondent.


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