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Shidappa Bapu Biradkar Vs. Ningangauda Siddangauda - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 103 of 1913
Judge
Reported inAIR1914Bom107; (1914)16BOMLR663
AppellantShidappa Bapu Biradkar
RespondentNingangauda Siddangauda
Excerpt:
hindu law-adoption-detesting of estate-adoption by widow of pre-deceased son-estate vested in mother-in-law-assent of mother-in-law to adoption.;under hindu law, the widow of a predeceased son can make a valid adoption with the contemporaneous consent of her mother-in-law in whom the estate of the last full owner is vested as an heir. ;payappa v. apanna (1898) i.l.r. 23 bom. 227 followed - - 5. i consider it essential that a rule affecting the devolution of property after it is laid down definitely and clearly should not be lightly disturbed unless there are clear and cogent reasons to do so. it matters nothing to the reversioners whether their rights are defeated by the adopted son of the last full owner or of a predeceased son of the last full owner. i do not wish to express any..........with the consent of avabai in whom the estate was vested at the time as the heir of the last full owner. shidava died in 1904. avabai apparently had predeceased shidava. the present plaintiff who is the adopted son of shidappa claims to be the owner of the property in suit, while the defendants claim the property as the reversioners of ramangauda. it is common ground that the plaintiff is entitled to succeed, if the adoption of shidappa by shidava is valid. the lower courts have held the adoption to be valid mainly relying upon the case of payapa v. appanna i.l.r. (1898) 23 bom. 327.2. in the appeal before us, the same question has been raised, and it is argued on behalf of the defendants that the adoption by shidava is invalid as the adoption is not to the last full owner, and that the.....
Judgment:

Shah, J.

1. The facts out of which this second appeal arises are few and undisputed. One Ramangauda had a son Ningangauda, who died during his lifetime leaving a widow Shidava. Thereafter Ramangauda died leaving a widow Avabai, who inherited the property of her husband. In 1878 Shidava adopted Shidappa with the consent of Avabai in whom the estate was vested at the time as the heir of the last full owner. Shidava died in 1904. Avabai apparently had predeceased Shidava. The present plaintiff who is the adopted son of Shidappa claims to be the owner of the property in suit, while the defendants claim the property as the reversioners of Ramangauda. It is common ground that the plaintiff is entitled to succeed, if the adoption of Shidappa by Shidava is valid. The lower Courts have held the adoption to be valid mainly relying upon the case of Payapa v. Appanna I.L.R. (1898) 23 Bom. 327.

2. In the appeal before us, the same question has been raised, and it is argued on behalf of the defendants that the adoption by Shidava is invalid as the adoption is not to the last full owner, and that the consent of Avabai cannot validate it. In other words it is contended that the case of Payapa v. Appatma, which is admittedly on all fours with the present case, is not correctly decided. It is conceded-and I think rightly conceded-that there is no decision of this Court or of the Privy Council which is in conflict with Payapa's case. But Mr. Nilkanth has relied upon certain dicta in Shri Dharnidhar V. Chinto I.L.R. (1895) 20 Bom. 250. Ramchandra v. Mulji Nanabhai I.L.R. (1896) 22 Bom. 558., Ramkrishna v. Shamrao (1902) 4 Bom L. R 315; I.L.R. 26 Bom. 526. and Datto Govind v. Pandurang Vinayak (1905) 10 Bom. L.R. 692; I.L.R. 32 Bom. 499., as Bhowing that the decision in Payapal's case cannot now be accepted as a binding authority. He has also drawn our attention to the criticism on these cases in paragraphs 194 and 195 of Mayne's Hindu Law (8th Edn. pp. 255-258).

3. In dealing with these cases it is necessary to bear in mind the particular facts of each case, and the point for decision with reference to which the observations must be deemed to have been made. It is also necessary to remember that a case is only an authority for what it actually decides, and that it cannot be quoted for a proposition which may seem to follow logically from it. Viewed in this light it is clear that Payapa's case is an authority for the proposition that a widowed daughter-in-law (I mean the widow of a predeceased son) can make a valid adoption with the contemporaneous consent of her mother-in-law, in whom the estate of the last full owner is vested as an heir. We are not concerned in this case with the exact scope of the general propositions enunciated in the case as third and fourth exceptions to the rule by Ranade J. The observations in the two earlier cases were obiter dicta and considered by the Court which decided Payapa's case. The Full Bench ruling in Ramkrishna v. Shamrao does not touch the point actually decided in Payapa's case. The Full Bench considered the question of the power of the grand-mother to make a valid adoption and held that her power to adopt was at an end, when her son died leaving a grandson as his heir.

4. The considerations which would apply to the limited proposition with which we are concerned in this appeal, and with which the learned Judges in Payapa's case were concerned, would be quite different, and, so far as I can see, there is nothing in the Full Bench case which is in conflict with the main ground of Payappa's decision. The same may be said of the case of Datto Govind v. Pandurang Vinayak in which, as I read the observations of Chaubal, J., it was merely suggested that the general propositions stated as the third and fourth exceptions to the ordinary rule were not universally true and could not apply to certain widows adopting under certain conditions. In any case I see nothing in these two cases which is in conflict with the decision in Payapa's case. On a careful consideration of the arguments urged by Mr. Nilkanth, I am unable to see any reason to dissent from the decision in Payapa's case.

5. I consider it essential that a rule affecting the devolution of property after it is laid down definitely and clearly should not be lightly disturbed unless there are clear and cogent reasons to do so. Payapa's case was decided in 1898. Mr, Justice Ranade then observed as follows (p. 332):-'Nothing is more common in this country than to find that parents, when they grow old, and have the misfortune of losing an only son in their old age, leaving a young widow behind, think it their duty to console that widow for the loss she has suffered by permitting her to adopt a son in preference to adopting a son themselves.' To adopt any other view now would have the effect of unsettling many titles settled on the footing of Payapa's case. I would, therefore, follow the decision in Payapa's case.

6. Apart altogether from Payapa's case, I see nothing in such an adoption as we have in this case, which is opposed to the Hindu sentiment or Hindu usage or any specific and inflexible rule of Hindu law. In this case Avabai was unquestion ably competent to adopt to Ramangauda at the time when she consented to Sidappa's adoption by Shidava and to defeat the rights of the reversioners. Instead of following that method of doing so, she allowed her daughter-in-law to do so by giving her consent to the adoption at the time. It matters nothing to the reversioners whether their rights are defeated by the adopted son of the last full owner or of a predeceased son of the last full owner. The rule as to the adoption being to the last full owner for the purposes of inheritance is subject to certain exceptions. For instance, a mother is allowed to adopt, though her adoption is not to the last full owner, so as to enable the adopted son to inherit the property of her son. An exception in favour of the widow of a predeceased son when she adopts with the contemporaneous consent of her mother-in-law seems to be just and in accordance with Hindu law. The result, therefore, is that the decree of the lower appellate Court is confirmed with costs.

Heaton, J.

7. I concur. I do not wish to express any opinion at all on the general principles which were discussed and which it is far from easy to determine, but I am quite satisfied that in this case we should decide as was done in Payapa's case.


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