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Hanmant Subbaya Naik Vs. Krishna Manjunath Yaji - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number Appeal from Order No. 1 of 1924
Judge
Reported inAIR1925Bom402; (1925)27BOMLR642
AppellantHanmant Subbaya Naik
RespondentKrishna Manjunath Yaji
DispositionAppeal dismissed
Excerpt:
hindu law - adoption-alienation by widow before adoption-death of first adopted son-second adoption-sight of second adopted son to impeach alienation - limitation.;a hindu widow alienated in 1903 a portion of the property which she inherited from her husband, and then adopted a boy. on the death of the boy, she adopted another in 1915, the second adopted son having sued in 1922 to set aside the alienation it was contended that as the second adopted son was the representative of the first adopted ton the suit was time-barred :;(1) that the second adopted sots acquired by virtue of his adoption an inherent right to question an alienation by his adoptive mother before his adoption, and that right of his was not affected in any way by the fact that there had been a previously adopted..........in his 'treatise on hindu law and usage,' 9th edition, at page 270 in the following passage :a widow adopted;, son under the authority of her husband. she succeeded him as his heir, and made an alienation, and then adopted another son. the court held that the alienation was good aa against the second adopted son (gobindo nath v. ram kiwity chowdhry). the decision was given without any inquiry as to the propriety of the alienation, and was rested on the authority of chandrabullee's case. it does not seem to have occurred to the court that a .nether had no more than a limited estate, which, upon the authority of the case cited, was devested by the adoption. the son when came in for all rights which had not been lawfully disposed of, or barred, during the continuance of that estate.........
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover possession of the suit property with past mesne profits. He had been adopted by one Venkamma on May 26 1915. On April 25, ] 903, Venkamma had given the suit property on Mulgeni to one Manjunath. On April 30, 1903, she adopted one Ram-krishna born on June 14, 1900. On December 17, 1914, Ram-krishna died a minor. The present suit was brought on February 7, 1922. The lower Court dismissed the suit as time-barred

2. In first appeal it was contended that Venkamma could only adopt to her deceased husband, that the second adopted son was in no way the representative of the first adopted son and therefore the cause of action accrued on the date of his adoption. On the other hand the defendant argued that the second adopted son was the representative of the first adopted son and therefore the suit was time-barred. The District Judge held that by his adoption, plaintiff obtained the right to question his adoptive mother's alienations and that it was in virtue of his adoption an inherent right, and no valid ground had been shown for holding that the right had been barred. Accordingly the order of the lower Court was reversed and the suit was sent back to be tried on the merits. The defendant has appealed.

3. There is no direct authority for the point arising in this appeal. We have been referred to the case of Gobindo Nath Roy v. Ram Kanay Chowdhry (1875) 24 W.R. 183. A. Hindu widow succeeded to the estate of her adopted son on his death as his heir. She then alienated the suit property and subsequently adopted another son, It was held that a subsequent adoption could not divest the alienee of his rights under the alienation previously effected. , Jackson J. relied upon the decision of Mussumat Bhoobun Moyee Debia v. Ram Kishore Achraj Chowdhry (1865) 10 M.I.A. 279 in deciding that the subsequent adoption of another son by the widow could not divest the alience of his rights under the alienation made by her before adoption. But that case does not seem to be an authority for that proposition. The head-note runs thus:-

In the year 1811, G being childless, executed a deed of ...permission by which he gave power to his wife, C, to adopt a son. He afterwards had a son, B, by his wife, C. In 1819, two years after his son's birth, and while he was living, G executed [another instrument giving the widow, his wife, permission to adopt]. ,...B, on corning of age, succeeded to the ancestral and other estate of his father who had died. On B's death, childless, his widow succeeded as heir to her deceased husband, taking a vested estate in the whole of his estate. Some time after B'a death, C, his mother, exercised the power given her by the instrument of 1819, by adopting a son to G.'

It was held that ' B, the son was the last full owner, and his wife succeeded at his death, as his heir to her widow's estate, and, consequently, that the adoption by 0, under the.[instrument] was void, as the power was incapable of execution.

4. There does not appear to have been any contest between an adopted son and an alienee from the widow before adoption. The Calcutta Court seemed to consider, on the authority provided by that decision, that the suit was time-barred because it ought to have been brought within three years from the date of the death of the first adopted son, although the alienation had been made after the first adopted son had died and while the widow was his heiress. This case is referred to by Mayne in his 'Treatise on Hindu Law and Usage,' 9th Edition, at page 270 in the following passage :

A widow adopted;, son under the authority of her husband. She succeeded him as his heir, and made an alienation, and then adopted another son. The Court held that the alienation was good aa against the second adopted son (Gobindo Nath v. Ram Kiwity Chowdhry). The decision was given without any inquiry as to the propriety of the alienation, and was rested on the authority of Chandrabullee's case. it does not seem to have occurred to the Court that a .nether had no more than a limited estate, which, upon the authority of the case cited, was devested by the adoption. The son when came in for all rights which had not been lawfully disposed of, or barred, during the continuance of that estate.... It may now be considered as settled law, first, that if a widow exceeds the powers conferred upon her by law, her acts in so far as they are in excess of those powers can be set aside by a subsequently adopted son as from the date of his adoption : secondly, that as the adoption immediately devests the widow's estate, it equally devests the estate of Any one claiming under a title derived from her.

5. The question really then in this case is whether the plaintiff acquired by virtue of his adoption an inherent right to question any alienation by his adoptive mother before his adoption, and it does not seem to me that the fact that there had been' a previously adopted son could in any way affect that right. The second adopted son did not succeed to the first adopted son. Whether the mother as widow of the original holder made the alienation before the first adoption while she held a widow's estate, or after the death of the first adopted son, when she would be holding as his heir, would raaka no difference to the rights of the second adopted son to question her alienation. We think, therefore, that the District Judge was right in holding that the plaintiff was not the representative of the first adopted son, and that the suit was not barred by limitation. The appeal, therefore, must be dismissed with costs.

Coyajee, J.

6. I am of the same opinion.


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