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Bhala Nahana Vs. Parbhu Hari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom67
AppellantBhala Nahana
RespondentParbhu Hari
Excerpt:
.....out, a court of equity will take care that he is not disappointed, and will give effect to the proposal. that dictum, however, does not appear to have been indispensable--the suit there having been simply to recover possession, to which relief the court held the plaintiff (the alleged male heir) not to be entitled, the alienation being good, at least, so long as the widow lived and continued in a state of viduity. , 105, remarked that 'it is her duty to pay off the mortgage debt, as well as all other debts of her husband, provided there are assets, either real or personal......is found, as a fact, that the gift of the boy by his parents was made upon the express promise by gosai ramji, the adoptive father, to settle his property upon the boy. it has, indeed, been also found, as a fact, that an adoptive father may, according to the custom of the caste, for such reasons as would justify a natural father in disinheriting his son, repudiate the adopted son. it is, however, sufficient for us to say that not only is there a complete absence of allegation or evidence that any such grounds existed here, but gosai ramji, up to the time of his death, kept the boy in his house, treated him as his son, and never expressed any intention or desire to repudiate him, or to violate the promise on the faith of which the natural parents gave their boy in adoption. if any such.....
Judgment:

Michael Westropp, C.J.

1. It is not a necessary consequence of the circumstance that the spiritual motive for adoption, which exists among the Hindus of castes higher or other than the Talabda Koli caste, has no influence upon it, that its members may not lawfully adopt. The celebrity or perpetuation of the name and family of the adopter is recognized as a motive for adoption. Datt. Mim., Section 1., pl. 9.; Datt. Chand., Section 1., pl. 3. For instance, adoption, though not frequent in the Jaina community of Hindus, is practised and recognized, notwithstanding that they disbelieve in the efficacy of and discard the sraddha or paksha ceremonies; their solo motive for adoption being the perpetuation of the name and family of the adopter: Bhagvandas Tejmall v. Rajmal 10 Bom. H.C. Rep. 241;

2. In the Subordinate Judge's Court the reasons for adoption in the Talabda Koli caste are found to be temporal, viz., the rendition by the adopted sons of domestic services, the commemoration, by those sons, of the adoptive fathers, by giving feasts on the anniversaries of their deaths to the caste, and that the adopted sons should become heirs of the adoptive fathers. In the present case there unquestionably has been a giving and receiving in adoption and it is found, as a fact, that the gift of the boy by his parents was made upon the express promise by Gosai Ramji, the adoptive father, to settle his property upon the boy. It has, indeed, been also found, as a fact, that an adoptive father may, according to the custom of the caste, for such reasons as would justify a natural father in disinheriting his son, repudiate the adopted son. It is, however, sufficient for us to say that not only is there a complete absence of allegation or evidence that any such grounds existed here, but Gosai Ramji, up to the time of his death, kept the boy in his house, treated him as his son, and never expressed any intention or desire to repudiate him, or to violate the promise on the faith of which the natural parents gave their boy in adoption. If any such grounds had existed, and the adoptive father had upon them repudiated the boy, it might be a question what would be the effect of such a repudiation upon the contract to settle, or upon the boy's right to resume his place in the family in which he was born, either as regards heirship or otherwise. It is unnecessary here to consider such questions. There not being any evidence of grounds which would have warranted repudiation, or any repudiation in fact, we must hold that Gosai Ramji was, at the time of his death, bound to perform his contract, on the faith of which the boy's natural parents permitted him to alter his status in life, and to forego his claim to inheritance from them. In Hammersley v. Baron De Biel 12 Cl. & F 45 Lord Cottenham said: 'A representation made by one party for the purpose of influencing the conduct of the other party, and acted on by him, will, in general, be sufficient to entitle him to the assistance of this Court for the purpose of realizing such representation.' And in the same case in the House of Lords, where his decision below was affirmed, he said: 'But the principle of law, at least, of equity, is this--that if a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a Court of Equity will take care that he is not disappointed, and will give effect to the proposal.' 12 Cl. & P. 78. See to the same effect Coverdale v. Eastwood L.R. 15 Eq. 121, and the cases collected in 1 White and Tudor, 3rd Ed. 705. Gosai Ramji having died, without making the promised settlement, the equity to compel his heir and legal personal representative specifically to perform his contract, survived him. The property, when it came into his widow's hands, was bound by the contract. It has been relied upon on behalf of the plaintiff that the contract remained unperformed for some thirty years after the death of Gosai Ramji. That circumstance, however, is immaterial, inasmuch as his widow, who fully, so long' as she lived and continued a widow, represented the inheritance (if the adopted son were not himself the heir), did not think proper to avail herself of any plea of lapse of time, but did, by the deed of settlement (Exhibit No. 9), carry her husband's contract into complete execution. Strictly speaking, however, the property of Gosai Ramji, on his death, vested in interest in the adopted son as his heir, who was then entitled to immediate possession, and the acts of the widow wore merely for the purpose and had the effect of vesting that property in him in actual possession. She never, apparently, wavered in her purpose; for she had previously caused the Gamatia lands to be transferred to the name of the adoptive son, and had endeavoured to induce the Collector to transfer her deceased husband's share in the Bhagdari land also to the adoptive son's name. She was not in anywise bound to avail herself of the plea of limitation, Tilakchand v. Jitamal 10 Bom. H.C. Rep 213, if such a plea were open to her. She honourably adhered to her husband's contract, and it is not competent for the person who, if Gosai Ramji had not adopted a son, would, on the death of the widow, have been Gosai Ramji's heir to set up such a plea, which has been, as we think, most properly waived by the widow. In saying that she was not bound to avail herself of that plea, we are not unmindful of a dictum in Melgirappa v. Shivappa 6 Bom. H.C. Rep., 270, that payment of a time-barred debt of a deceased husband was not a sufficient purpose to support an alienation by his widow against his male heir. That dictum, however, does not appear to have been indispensable--the suit there having been simply to recover possession, to which relief the Court held the plaintiff (the alleged male heir) not to be entitled, the alienation being good, at least, so long as the widow lived and continued in a state of viduity. The case of Grish Chunder Lahoory v. Koomaree Debea, cited by Norton 2 L.C. 642 from 1 Cal. W.R. Misc., 23, only shows the liability of the widow to pay the debts of her husband and does not in anywise support the proposition for which he quotes it, viz., that the payment of her husband's debt after it has been barred by limitation is not such a necessity as will support an alienation by her. In Gopalnarain v. Mudoomutty 14 Beng. L.R. 21, Couch, C.J., is reported as having said in the High Court at Calcutta that 'the manager of a joint Hindu family has no power to revive a debt by acknowledgment, except; as against himself.' That remark was made with reference to Section 4 of Act XIV of 1859, and may, perhaps, be regarded as the Court's view of the construction of that enactment, and akin to the ruling that an acknowledgment signed by an agent is not sufficient to bring a case within that Section (Budoobhoosun Bose v. Enact Moonshee 8 Cal. W.R. 1. It is another and different proposition to maintain that, if the manager of a Hindu family (ex. gr. a son or grandson of the deceased) pay a debt of his father or grandfather barred by the law of limitation, such manager would not be entitled to credit as against his coparceners for the amount or that a widow paying such a debt of her husband could not support her act against his divided male heirs. Whether we should concur in the above-quoted remark of Couch, C.J., it is unnecessary now to consider. The difference between a promise to pay and an acknowledgment should not be forgotten.!' We do not feel pressed by the distinction, taken in Gopalnarain v. Mudoomutty 14 Beng. L.R. 21, between an English executor and a Hindu manager or executor. Of the English executor Lord Lyndhurst says: 'The debtor may at any time pay the debt; and even his executor may pay it in spite of the statute, and in that way satisfy, in his [73] representative capacity, the conscience of his testator.' (Williamson v. Naylor, 3 Y & C. Exch. 211. See to the same effect Norton v. Frecker 1 Atk. 525, per Lord Hardwicke; Stahlschmidt v. Lett 1 Sm. and Giff. 415, Hill v. Walker 4 Kay & Joh 166, where Wood, V.C., expressly states that a dictum to the contrary in Mculloch v. Dawes 9 Dowl. & By. 43, is not law; and Lowis v. Rumney L.R. 4 Eq. 451. The religious law of the Hindu widow, which is even more urgent than the moral obligation of the English executor, enjoins upon her the duty of paying the debts of her husband if he be not a member of an undivided family. The Rishi Narada says:' The debts contracted by the husband shall be discharged by the widow, if sonless, or if her husband has enjoined her to do so on his death-bed, or if she inherits the estate; for whosoever takes the estate must pay the debts with which it is incumbered.'' The answer of the Shastri, in 1 West and Buhler 68, is to the same effect. And East, C.J., in Gopeymohun Thakoor v. Sebun Cower 2 Morley Big., 105, remarked that 'it is her duty to pay off the mortgage debt, as well as all other debts of her husband, provided there are assets, either real or personal.' If the adopted son be not himself regarded as the heir of his adoptive father, but merely as a person upon whom the latter had contracted to settle his property, then the alleged adoptive father, having died sonless, divided from his kinsmen, and without having performed his contract, his moveable and immoveable estate completely vested in the widow by way of inheritance, I although with a restriction on her power of alienation of immoveable property, I except for certain proper or necessary purposes specified by Hindu jurists. Amongst these, as we have seen, the payment of her husband's debts and performance of his contracts are included. She so completely represents the inheritance, that in a suit (in which she is a defendant) to foreclose a mortgage made by him, his next male heir is not a necessary party, although he has sometimes been made so ex majori cauteld. In Doe d. Goluckmoney Dabee v. Diggumber Dey 2 Bou Rul 198; and Nolinchunder v. Issurchunder, 9 Cal. W.R. 505, Civ. R.) Peel, C.J., observed: 'It has been invariably considered for many years that the widow fully represents the estate; and it is also the settled law that adverse possession, which bars her, bars the heir also after her, which would not be the case if she were a mere tenant for life, as known to the English Law; on the contrary, if such were her estate, her heir would have twenty years after her death for making his entry, which would be a most mischievous rule to establish.' The completeness of her title to the inheritance is further illustrated by the same learned Judge's observation and those of Colvile, J., in Mohar Ranee Essadah Bai v. The East India Company 1 Taylor & Bell 290, and the other cases mentioned in Lalchand Ramdyal v. Gumtibai 8 Bom. H.C.R. 155, and there quoted at pp. 155 to 157 of the report in 8 Bom. H.C. Rep.. In Ramchandra Tantra Das v. Dharmo Narayen Chuckurbutty 7 Beng. L.R. 341, it was held by a Full Bench in Calcutta that the interest of an heir, expectant on the death of a widow in possession, is so mere a contingency, that it cannot be regarded as property, and, therefore, was not liable to attachment and sale under Section 205 of Act VIII of 1859.

3. It follows, from what has been said, that we think the widow had full power to perform the contract of her husband with the parents of the adopted boy.

4. For these reasons we affirm the decree of the District Court with costs.


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