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Advi Fakirappa Chalwadi Vs. Fakirappa Adiveppa Chalwadi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 223 of 1917
Judge
Reported inAIR1918Bom168; (1918)20BOMLR703
AppellantAdvi Fakirappa Chalwadi
RespondentFakirappa Adiveppa Chalwadi
Excerpt:
.....he remained in his natural family. 339. in the former case what i have said was strongly disapproved by buckley j. i think that this case, in which we have to decide whether a son who is in his mother's womb at the time of his father's adoption is born into his father's adoptive family or into his father's natural family, can be best decided by the simplest way of looking at the case......this case, in which we have to decide whether a son who is in his mother's womb at the time of his father's adoption is born into his father's adoptive family or into his father's natural family, can be best decided by the simplest way of looking at the case. i think the simplest way of all is to remember that a child when born becomes the son of his father. this is illustrated by a hypothetical case, the case of the son of a man who becomes a peer, that son being begotten while the father is still a commoner but born after the peerage has been conferred. the son, i apprehend, is from his birth the son of a peer and not the son of a commoner. there are, it is true, exceptions to this very simple conception of the position of a child ; but as my learned brother has pointed out those.....
Judgment:

Beaman, J.

1. The general rule of jurisprudence by which the existence of a child as a legal entity is dated from his conception and not from his birth will, on examination, be found to have been intended, I believe in almost every case, for the benefit of the child, and this somewhat fictional extension of the notion of birth to have been devised in order to connect him directly with his father both for the purposes of inheritance and legitimacy as at the time of his conception, where, if the date of his birth should be the date of his coming into being as a legal entity, consequences less favourable to him would necessarily fellow. Here we have to deal with the converse case, although it is easy to decide it if the principle I have stated be the true principle. It is, as far as so know, a new case, upon which no Court has yet adjudicated, and it involves a double fiction, if indeed it be a fiction, to say that in law a child is born when he is conceived. For here it is complicated by the Hindu law of adoption under which when a man is adopted, although he continues in every sense a 'persona capable of civil rights, he dies in civil law to his natural family. Speaking for myself, the refined dialectics which eminent Hindu lawyers delight to spin about the ancient texts seem to me utterly unconvincing. There is no single text directly in point. Those which are usually handled for the purpose are so vague that they lend themselves, as it appears to me, to almost any form of dialectical use. A very little ingenuity would turn the argument as easily the other way. It is certain that none of the accredited Hindu lawyers of the past ever directly contemplated such a case. Their attempts at definition often appear to me to be defective and the weakest point in the Hindu law might perhaps be thought to be its efforts at scientific classification. I do not, therefore, propose to dwell upon those texts which are commonly cited in connection with allied topics and have been exhaustively dealt within a judgment of Chandavarkar J. in the case of Kalgavda Tavanappa v. Somappa Tamangavda I.L.R. 1909 Bom. 669 : 11 Bom L.R. 797 L.R. 83, where the point was whether when a man was adopted his son then in being remained in his natural or followed his father into his adoptive family. Every effort to obtain clear authority from this confused medley of rather inconsequent pronouncements upon other legal relations is, in my opinion, of little more real value than the interpretations of the prophecies in the Old Testament and the revelations, intended to verify them in later historical events. I think the object of all the Courts to-day should be to lay down as far as possible a principle that can be generally applied, a principle too which rests upon an intelligible reason. Now, if it be granted that the reason underlying the well-known and generally accepted rule of our jurisprudence is to overcome the difficulties which might otherwise arise to the prejudice of the child in question, then its application in converse cases would have to be modified with reference to that paramount consideration. And this can very easily be done when we remember that the rule, though general and wide enough, is by no means universal. For instance, we have statutory authority for disregarding it in the case of domicile. Other cases might also be put, as for example, where the father and mother change their religion during the wife's pregnancy, in which if the Courts were called upon to decide they would probably be guided by the considerations to which I propose to give effect.

2. Now, in this country I believe that it is so generally true that I might without exaggeration say that it is universally true, that sons taken in adoption are taken from a poorer into a richer family. After the adoption circumstances may of course change. But at the time of the adoption it is extremely unlikely that any parents would consent to give a son at the time vested with wealth or expectancies of wealth into a family where he could have neither wealth nor any expectation of it. It, therefore, becomes apparent that an adoption will give the father, and after him his son, a better position than he would have had, had he remained in his natural family.

3. I see, therefore, no reason at all why in the very rare cases, of which this is the first, I believe, that has come up for judicial decision, we should not hold in the interest of the after-born child that for all purposes of succession and inheritance his legal entity must be taken to date from the date of his birth. It is upon that principle, and not upon any nice analysis of the Hindu texts, that I should prefer to put my decision. I do not believe that kind of analysis is really profitable. Wherever it is pursued at any length, I detect many points in the reasoning which I at least think may easily be proved to be fallacious. But the rule I am laying down is so simple and rests upon so simple a reason that while it will not conflict as far as I can see with any accepted principle of English jurisprudence or any sentiments of the Hindu law, it can very easily be applied to any set of facts to which it is applicable.

4. I would, therefore, hold in this case that the plaintiff was born into the family into which his father was adopted and is entitled to succeed to his father in that family. The result of this is that the decree of the learned Judge below must be reversed and that of the trial Judge restored with all costs throughout.

Note.-With reference to the opening sentences of this judgment I may note that after it was delivered my attention was drawn to the English cases, 'In re Wilmer's Trusts (1903) 72 L.J. Ch. 378 and Villar v. Gilbey (1907) 76 L.J. Ch. 339. In the former case what I have said was strongly disapproved by Buckley J. and his view was also taken by the Court of Appeal. But in the latter case the House of Lords emphatically affirmed the general principle upon which I have based this judgment.-F.C.O.B is.

Heaton, J.

1. I concur. I think that this case, in which we have to decide whether a son who is in his mother's womb at the time of his father's adoption is born into his father's adoptive family or into his father's natural family, can be best decided by the simplest way of looking at the case. I think the simplest way of all is to remember that a child when born becomes the son of his father. This is illustrated by a hypothetical case, the case of the son of a man who becomes a Peer, that son being begotten while the father is still a commoner but born after the Peerage has been conferred. The son, I apprehend, is from his birth the son of a Peer and not the son of a commoner. There are, it is true, exceptions to this very simple conception of the position of a child ; but as my learned brother has pointed out those exceptions are invariably for the benefit of the child, and they are in the nature of fictions working in favour of the ' child and created in order to protect the child against such thing as illegitimacy, and poverty. But where no consideration of that kind operates, then I think that the rule must be the natural rule that a child becomes a legal entity at the time of its birth and not at some time prior to its birth.

2. Such, very briefly stated, are the reasons for which I think the judgment of the lower appellate Court in this case must be set aside and the judgment of the first Court restored.


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