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Ramkrishna Gopal Joshi Vs. Chimnaji Vyankatesh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 581 of 1912
Judge
Reported in(1913)15BOMLR824
AppellantRamkrishna Gopal Joshi
RespondentChimnaji Vyankatesh
Excerpt:
hindu law - adoption - father's sister's son viruddha samhandha.;under hindu law it is competent to adopt a father's sister's son. - - the plaintiff is also entitled to mesne profits in respect of the fees which the defendant may have received during the turn of office which should have fallen to the plaintiff the amount of these profits must be left to be determined in execution, when also, should any dispute arise, it may be determined when precisely and at what intervals the plaintiff's turn of service is to occur......legally married, must be restricted to the cases of the daughter's son, the sister's son and the mother's sister's son. the present being a case of the father's sister's son is outside the prohibition, as that prohibition has been interpreted in these decisions. the decisions are binding upon us and we think it is, too late now to attempt to question these.2. having regard to the course which the suit has taken in; the trial court and the lower appellate court and the issues therein framed and found upon, the result of this decision as to the validity of the plaintiff's adoption is that the decree under appeal must be reversed and in its place there must be made a decree granting plaintiff the declaration that he is the validly adopted son of gopal joshi, that as such he is entitled.....
Judgment:

Basil Scott, Kt., C.J.

1. The parties to this case are Brahmins. The question involved in this appeal is as to the validity of the adoption of the plaintiff. The fact of his adoption is admitted. The adoption was made by one Radhabai, the widow of Gopal, and before his adoption the plaintiff was Gopal's father's sister's son. The question is whether the plaintiffs adoption is in law invalid by reason of the rule that no one can be adopted whose mother the adopter could not have legally married.' It is conceded that there could have been no legal marriage between Gopal arid the plaintiff's mother in her maiden state. But the point seems to us the have been set at rest by the decisions of separate Benches of v this Court, that is to say, the two decisions in Ramchandra v. Gopal I.L.R. (1908) Bom. 619 : 10 Bom. L.R. 948 and Yamndva v. Laxuman : (1912)14BOMLR543 . The basis of these decisions is that the rule, that no one can be; adopted whose mother the adopter could not have legally married, must be restricted to the cases of the daughter's son, the sister's son and the mother's sister's son. The present being a case of the father's sister's son is outside the prohibition, as that prohibition has been interpreted in these decisions. The decisions are binding upon us and we think it is, too late now to attempt to question these.

2. Having regard to the course which the suit has taken in; the trial Court and the lower appellate Court and the issues therein framed and found upon, the result of this decision as to the validity of the plaintiff's adoption is that the decree under appeal must be reversed and in its place there must be made a decree granting plaintiff the declaration that he is the validly adopted son of Gopal Joshi, that as such he is entitled according to his turn to worship and to receive the presents offered to the image of the God Murlidhar and others. There will be a perpetual injunction enjoining the defendants not to interfere with the plaintiff in the exercise of these rights. The plaintiff is also entitled to mesne profits in respect of the fees which the defendant may have received during the turn of office which should have fallen to the plaintiff The amount of these profits must be left to be determined in execution, when also, should any dispute arise, it may be determined when precisely and at what intervals the plaintiff's turn of service is to occur.

3. The plaintiff must have his costs throughout.


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