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Girijabai Shambhudixit Athavale Vs. Sadashiv Vishvanath Joolekar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number First Appeal No. 283 of 1917
Judge
Reported in(1920)22BOMLR974; 58Ind.Cas.394
AppellantGirijabai Shambhudixit Athavale
RespondentSadashiv Vishvanath Joolekar
DispositionAppeal allowed
Excerpt:
.....could not be, after his death, any circumstances which would amount to an interference of his rights as such adopted son;;(2) that, therefore, article 119 of the indian limitation act had no application to the case; and the case fell within the purview of article 141:;gangabai v. tarabai (1902) i.l.r. 26 bom. 720 : 4 bom. l.r. 516, applied:;(3) that there was no estoppel against the plaintiff preventing her from asserting her right, for even assuming that she had induced the defendant to believe that she had no claim to her husband's property, there was nothing to show that he had acted on such belief. - - 7. the plaintiff, so far as her title is concerned, has made good her case, and she is entitled to succeed except for two possible objections, one of limitation and the other of..........shambhu after shambhu's adoption into the athavale family, remained in his father's old jogleker family. shambhu died in 1904.2. the defendants oppose the paintiff's claim mainly on two grounds, one of limitation, the other of estoppel. it was contended that article 119 applied, and that although the suit was one to recover possession of the property, the plaintiff, before she could succeed, had to obtain a declaration that her husband's adoption was valid. therefore she was bound to bring the suit within six years after the rights of sambhu, the adopted son as such, had been interfered with. the learned judge found that such interference took place when vishwauath was entered as the owner of the athavale estate in the record of rights in 1904. assuming that the plaintiff is bound to.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover possession of the plaint property as the widow of one Shambhudixit who was adopted in 1878 by a family of the name of Athavale. The defendants are the grandsons of Shambhu by their father Viahwanath who was born in 1877 before the adoption. Therefore according to Hindu law Vishwanath, the son of Shambhu after Shambhu's adoption into the Athavale family, remained in his father's old Jogleker family. Shambhu died in 1904.

2. The defendants oppose the paintiff's claim mainly on two grounds, one of limitation, the other of estoppel. It was contended that Article 119 applied, and that although the suit was one to recover possession of the property, the plaintiff, before she could succeed, had to obtain a declaration that her husband's adoption was valid. Therefore she was bound to bring the suit within six years after the rights of Sambhu, the adopted son as such, had been interfered with. The learned Judge found that such interference took place when Vishwauath was entered as the owner of the Athavale estate in the Record of Rights in 1904. Assuming that the plaintiff is bound to obtain a declaration that Shambhu'a adoption was valid, we do not think that after his death there could be any circumstances which would amount to an interference of the rights of Shambhu as such adopted son. The facts in Gangabai v. Tarabai I.L.R (1902) Bom. 720 : 4 Bom. L.R. 516 are somewhat similar. It seems the learned Judges were of opinion that in that case until the death of the adopted son it was not suggested that his right as such adopted son had ever been interfered with, and they came to the conclusion that Article 119 did not apply to the facts of that case. Although the point we have had to decide may not have been actually decided in that ease, we certainly think that Article 119 cannot be applied to the facts of this case, so that the plaintiff, the widow, would have twelve years within which to bring her suit, and admittedly in that case the suit is within time.

3. The second point on which the defendants succeeded in the lower Court was one of estoppel. It appears that after Shambhu's death Vishwanath and then the defendants were in possession of the property, and in 1913 the plaintiff gave to Vishwanath's widow Umabai a receipt whereby she declared: 'According to agreement, whereby I am to receive Rs. 70 for my maintenance, I have this day received in all Rs. 33 for the year 1835 Pramadi. The balance to be paid by you is Rs. 36.' No doubt at that time it appears that the plaintiff thought that she was only entitled to maintenance. It is suggested that she thereby induced the defendants to give up any rights that they might have had to the Joglekar property by representing that they were entitled to succeed to the Athavale property on the death of Shambhudixit. There is no evidence whatever, even assuming that the plaintiff had induced them to believe that she had no claim to Shambhu's property, that they acted on such a belief. There is no evidence that there was any Jogleker property, or, if there were, that they made any claim to it, and gave up any rights they had in it, because they thought that owing to representation made by the plaintiff they were entitled to Shambhu's property. In the absence of that evidence we do not see how in any event there could be an estoppel. But apart from that there was in this case at the beat a mistake on the part of the plaintiff, and also of the defendants, with regard to the rights which the Hindu law gave her over her husband's property in the circumstances of the case.

4. In my opinion, therefore, the decision of the learned Judge on issues Nos. 7 and 8 was wrong, the appeal succeeds and the plaintiff is entitled to the decree which she asked for in her plaint with costs in both the Courts.

5. Usual order as to costs in the ease of a successful pauper appellant.

Heaton, J.

6. There is no doubt that Shambhu was the adopted son of Krishnadixit. That is found as a fact by the lower Court and has not been contested before us. Sharnbhu as such adopted son succeeded to the property of the Athavale family. He died in 1904. His own son Vishwauath was born before Shambhu's adoption, so that for the purposes of inheritance Vishwauth ceased to be the son of Sharnbhu after the lettor's adoption. He remained a member of his own natural family, the Joglekar family, and never became a member of the Athavale family. Therefore on Shambhu's death, so far as the facts proved tell us, the successor to the Athavale property was the plaintiff, the widow of Shambhu. It happened, however, that the property actually passed to Vishwanath and his sons, and the plaintiff, the widow, only received maintenance. She argued receipts for this maintenance and accepted the position that I have described.

7. The plaintiff, so far as her title is concerned, has made good her case, and she is entitled to succeed except for two possible objections, one of limitation and the other of estoppel, which the Court below held to be good objections.

8. The objection of limitation is based on Article 119 of the Schedule. It is said that seeing that after Shambhu's death in 1904 a Joglekar succeeded to the property, there was an interfereace with the rights of Shambhu as an adopted son. Now we have been asked to treat the words 'rights of the adopted son as such' as meaning the rights of the adopted son during his lifetime. If that is the correct reading, then certainly Article 119 cannot apply here, because there was no interference with Shatnbhu's rights as an adopted son so long as he was alive. The interference, if any, came after he died. But setting aside that possibly correct but certainly narrow interpretation of the words, and taking them in their wider sense, I still think the plea of limitation is not made out. If the words be taken in their wider sense, still there must be something done which is incompatible with the recognition of the adoption, otherwise there cannot be any interference with the rights of the adopted son. Now what was done here was in no sense whatever a refusal to recognize the fact that Shambhu was the adopted son. What was done was based on the acceptance of that fact. It was only because Shambhu was adopted into the Athavale family that Vishwanath, his natural son, could possibly have been allowed to take the Athavale property on Shambhu's death. Therefore there was no interference with the rights of the adopted son but an actual recognition of those rights and I think that Article 119 Cannot be said to have any application here. The true reason why Vishwanath was allowed to take the property was that everybody concerned misunderstood the law. They thought-I am bound to say I am not the least surprised-that seeing that Vishwanath was the natural son of Shambhu, he would succeed to his natural father's estate when his lather died. But unhappily for Vishwanath, that is not so. When you have an adoption of a man who has a son alive, the man passes into the family of his adoption, the son remains in his natural family. And seeing that this is the true legal state of affairs here, it seems to me to be Opposed also to the point of estoppel. It is perfectly true that the widow, the plaintiff, accepted the position that Vishwauath was to succeed to the property, but in so doing she merely shared in common with the other members of the family an erroneous belief. The sharing with others of an erroneous belief is not a circumstance from which it can be said that the widow caused or permitted another person to believe that to be true. There was no causing and no permitting in the sense in which those words are used in Section 115 of the Indian Evidence Act. They shared a mistaken belief in common. And if responsibility for such a mistaken belief is to be attributed to any one, it certainly ought not to be attributed to the widow.

9. I agree with the order proposed by my Lord the Chief Justice.


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