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Ramchandra Swaminaik Jorapur Vs. Manubai Ramdas Gujar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 250 of 1917
Judge
Reported inAIR1919Bom92; (1919)21BOMLR776
AppellantRamchandra Swaminaik Jorapur
RespondentManubai Ramdas Gujar
Excerpt:
decree-execution-application to execute the decree-application made by adopted son of decree-holder-decree-holder having daughter's son-right to apply.;a decree permitted the decree-holder to open a new door in a wall of his house. the decree-holder died afterwards leaving him surviving a son who was given in adoption in another family and a daughter's son. the decree-holder's son applied to execute the decree :-;dismissing the application, that the applicant, by virtue of his adoption, must be treated as non-existent in the family of his natural father for the purposes of the execution of the decree, and that the neatest heir of the decree-holder was the daughter's son. - - for these reasons the objection to the application appears to be a good one......date of the decree has no right to take out execution. the decree presumably was in respect of his natural father's house and for the benefit of that house. it was passed in 1908. the decree-holder was subsequently adopted, and after his adoption sought to execute the decree. it is contended that he by his adoption had lost his rights in his natural family, and the only person entitled to execute the decree was the person entitled to the house, and that person must be the heir of narsidas, the natural father of the applicant. now the applicant was adopted by his natural father's first cousin bhagwandas. therefore his relation to his natural father was no higher than that of bhagwandas. narsidas, however, had left a daughter who has a son, and the daughter's son is to be preferred to a.....
Judgment:

Basil Scott, C.J.

1. This is an application in execution which gives rise to a rather original position. It was presented by the decree-holder in a suit in which it had been decreed that the applicant might open a new door in the southern wall of his house. The person against whom the decree was passed Opposes the application on the ground that the applicant having been given in adoption since the date of the decree has no right to take out execution. The decree presumably was in respect of his natural father's house and for the benefit of that house. It was passed in 1908. The decree-holder was subsequently adopted, and after his adoption sought to execute the decree. It is contended that he by his adoption had lost his rights in his natural family, and the only person entitled to execute the decree was the person entitled to the house, and that person must be the heir of Narsidas, the natural father of the applicant. Now the applicant was adopted by his natural father's first cousin Bhagwandas. Therefore his relation to his natural father was no higher than that of Bhagwandas. Narsidas, however, had left a daughter who has a son, and the daughter's son is to be preferred to a first cousin in the western India. The only ground on which the applicant after his adoption could be entitled to execute the decree in respect of property inherited from his natural father would be on the theory that he lived in his natural family until his adoption and then died, having acquired a vested interest descendible to his heir. The daughter's son of Narsidas would then be the sister's son of the applicant, and the son of Bhagwandas, i. e., the applicant himself, would be a preferential heir. Any such fiction, however, appears to be untenable having regard to the definite pronouncement of the Privy Council in Nagindas Bhagwandas v. Bachoo Hurkis Sondas . At the close of the judgment is cited a passage from a judgment of Mr. Justice Mitter in which it is stated that the theory of adoption involves the principle of a complete severance of the child adopted from the family in which he is born, both in respect of the paternal and the maternal line, and his complete substitution into the adopter's family as if he were born in it. Then the Privy Council observes that with that statement as to the Hindu law of adoption their Lordships agree. The result is that the fiction goes the length of treating the adopted son as having been from his birth in the family of his adoptive father, and, therefore, he cannot for any purpose be regarded as having existed so as to acquire a vested interest in the property of his natural father. The consequence is that he must be treated as non-existent for the purpose of the execution of the decree, and the nearest heir of Narsidas will be the daughter's son. For these reasons the objection to the application appears to be a good one. We must set aside the decree of the District Court and dismiss the Darkhast, As it is a very novel and technical point, we think that each party should bear his own costs.


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