Skip to content

Anandibai Pandurangrao Bhide Vs. Vasudev Narsingrao Bhide - Court Judgment

LegalCrystal Citation
Decided On
Case NumberFirst Appeal No. 253 of 1935
Reported inAIR1939Bom81; (1938)40BOMLR1231
AppellantAnandibai Pandurangrao Bhide
RespondentVasudev Narsingrao Bhide
DispositionAppeal allowed
.....hindu family-coparcenery consisting of father and son-son predeceasing father and leaving mother, widow and daughter-father taking new wife on death of first wife-second wife inheriting as heir after father's death-subsequent adoption by son's widow of her daughter's son-validity of adoption-whether adoption divests property vested in second wife.;a hindu joint family consisted of father and son. the son predeceased his father, leaving behind him his mother, his widow and a daughter. on the death of the mother the father took a second wife, and she inherited the family pro-perty when the father died, thereafter the widowed daughter-in-law adopted plaintiff, who was her daughter's son. in a suit by the plaintiff against the widow for a declaration that his adoption was valid and..........upon the devolution of the property or rather the divesting of the property vested in narsingrao's widowed mother who was in possession thereof as the heir of her deceased husband pandurangrao. the property in dispute belonged to the said narsingrao and his father pandurangrao as members of a hindu coparcenery. narsingrao predeceased his father about thirty years ago leaving a widow saraswatibai and one daughter. narsingrao's mother janaki-bai, who survived him, died soon after and pandurangrao married a second wife anandibai, who is the defendant in this case. pandurangrao died within a year after that marriage. the entire property inherited by anandibai from her husband was in her possession till 1913 when upon the suit of saraswatibai, the plaintiff's adoptive mother, some portions of.....

Wassoodew J.

1. This appeal arises from a decree of the First Class Subordinate Judge of Dharwar. The question relates to the effect of the plaintiff's adoption by the widow of one Narsingrao Bhide, a Brahmin, upon the devolution of the property or rather the divesting of the property vested in Narsingrao's widowed mother who was in possession thereof as the heir of her deceased husband Pandurangrao. The property in dispute belonged to the said Narsingrao and his father Pandurangrao as members of a Hindu coparcenery. Narsingrao predeceased his father about thirty years ago leaving a widow Saraswatibai and one daughter. Narsingrao's mother Janaki-bai, who survived him, died soon after and Pandurangrao married a second wife Anandibai, who is the defendant in this case. Pandurangrao died within a year after that marriage. The entire property inherited by Anandibai from her husband was in her possession till 1913 when upon the suit of Saraswatibai, the plaintiff's adoptive mother, some portions of the property were given to the latter for maintenance during her lifetime. On July 28, 1933, Saraswatibai adopted the plaintiff who was her daughter's son. The plaintiff then instituted this action for a declaration of his adoption and for possession of the property in the hands of Anandibai.

2. Both the factum and the validity of the adoption were denied by the defendant. The learned trial Judge disallowed the defendant's contentions in both these respects and passed a decree in favour of the plaintiff for possession of the suit property after making suitable provision for the defendant's maintenance and residence. Mesne profits were also directed to be given to the plaintiff till recovery of possession. Against that decree the defendant has filed this appeal.

3. Prima facie the case will be governed by the decision of the Full Bench in Balu Sakharam v. Lahoo. (1936) 39 Bom. L. R. 382 : I.L.R. [1937] Bom. 508. There it was held that when the adoption takes place after the termination of the coparcenery by the death of the last surviving caparcener, the adoption by a widow of a predeceased coparcener has not the effect of reviving the coparcenery and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her. Upon the facts expressly admitted, after the termination of the coparcenery on the death of Pandurangrao, who was the last surviving coparcener, the adoption of the plaintiff was made by his son's widow. At that time the property of Pandurangrao was already vested in his widow the defendant. According to the ruling in Balu's case, therefore, the adoption, though valid for spiritual purposes, would not have the effect of divesting the property vested at the date of the adoption in, the heir of the last male holder. In that case upon the death of the last surviving coparcener Shiva in a joint Hindu family in 1919, his widow Gouri succeeded him. Upon the remarriage of Gouri in 1926 the property was inherited by Shiva's sister Avadi. There were two widows of two predeceased collaterals one of whom had adopted a son in 1927. It was held that though the adoption was valid it could not divest the estate which had already vested in the sister. The point in this case would therefore be covered by that authority.

4. But it has been urged by Mr. Thakor for the respondent-plaintiff that the case before the full bench is distinguishable on the facts and that that decision in any event is not an authority for deducing the principle which may logically follow from it. It is pointed out that the last surviving male coparcener in that case was a collateral of the father of the adopted boy, that the question there was of divesting the heir of that collateral, and that therefore the ratio would not apply to this case where the persons concerned are the father, son, grandson and the widows of the first two and not distant agnates. It is argued that the rule in Balu's case affecting devolution of the property could not properly be applied to this case consistently with the recognized principles of Hindu law. The argument is principally based upon the doctrine of spiritual benefit. It is said that if the oblation theory were accepted, and the relative efficacy of adoption on the religious side considered an important if not the sole test of the validity of adoption, the merits of a daughter-in-law's adoption would have to be judged independently of the considerations which weighed in Balu Sakharam's case, for, the grandson is able to offer direct oblations to the last male holder, his grandfather, which would not be possible in the case of a collateral. Mr. Thakor has also contended that in this particular case it cannot properly be said that there was a termination of the coparcenery on the death of Pandurangrao, the father, either actually or fictionally, so long as the widows of both the father and son were alive who could by adoption revive the coparcenery.

5. The latter argument is based upon the observations in Pratapsing Shivsing v. Agarsingji Rasingji (1918) L. R. 46 IndAp 97 : 21 Bom. L. R. 496 to the following effect (p. 107) :-

Again, it is to be remembered that an adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect : whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible.

Notwithstanding those remarks which were referred to in argument before the Full Bench, it was assumed that the coparcenery was extinguished upon the death of the surviving coparcener. There is no dissentient note in the differing judgment of Rangnekar J., and I think it is not open to us to raise the same question over again. The test laid down of the termination of the coparcenery is the death of the last male coparcener except when a widow of a deceased coparcener is enceinte and a posthumous son was born. On the facts therefore the argument cannot be upheld.

6. As regards the other line of argument it is true that the Full Bench was dealing with the case of collaterals, and, the question is whether that fact would take this case out of the ruling. It seems to me that the doctrine of spiritual benefit has its limitations. There is no authority for the view that the quality of spiritual benefit or efficacy should be the determining factor. As pointed out upon the authorities by Rangnekar J. in Balu's case, spiritual efficacy is not the sole test although a primary consideration. It is doubtful whether the benefit which a grandson would confer on the grandfather could not be conferred by a collateral. In practice the entire ' pinda' or cake is offered directly to the three immediate paternal ancestors. The wipings or ' lepa ' are offered to the three paternal ancestors next above those who receive the cake, and libations of water are offered to paternal ancestors ranging seven degrees beyond those who receive the 'lepa'. Mr. Thakor's argument is that 'Shradha' can only be performed by the grandson of his grandfather, by offering the entire cake or pinda, and that therefore in this case: he would be directly conferring spiritual benefit on the last male coparcener. The true import of ' sapinda ' relationship has apparently not been kept in view by some of the writers in dealing with matters of affinity without reference to the capacity to offer religious oblations. That fact has perhaps inspired this argument. We are not referred to any authority showing that in the absence of a son or grandson the other sapindas or agnates cannot offer directly the fragments of the pinda or the entire pinda or that the efficacy of the pinda or ' lepa' or ' libation' offered by one is greater than that of the other. Mayne (7th edn., p. 679) in relation to the Bengal school has made reference in a ' note ' to the following text from Baudhayana (i., 5, 11) ' Relatively to mourning, marriage and the like, those too that partake of the remnants of oblations are denominated sapindas.' Mr. Colebrooke invariably translates the word ' sapinda ' by the phrase ' connected by funeral oblations'. Considerations of propinquity from the point of view of inheritance do not, in my opinion, apply to the same extent when dealing with the capacity to offer funeral oblations. Golapchandra Sarkar Sastri in his treatise on Hindu Law, 7th edn., at p. 94, points out the difficulties of the oblation theory followed on account of the judicial gloss on the texts and has expressed his opinion thus (p. 193) :-

It is erroneous to suppose that the law of adoption owed its origin to the doctrine of spiritual benefit conferred by sons...On the contrary, the doctrine of spiritual benefit seems to have been invoked for the purpose of discouraging the institution of subsidiary sons.. If one carefully reads the passages of the Smritis, extolling the importance of sons in a spiritual point of view, he will find that they all relate primarily to the real legitimate sons, and not to the secondary sons.

To introduce an innovation of the kind urged before us into the complications of the law of adoption must necessarily occasion more harm by its novelty. So far as the question of devolution of coparcenery property goes, upon the death of the last male coparcener, in the event of adoption by a widow of one of the deceased coparceners, the rule laid down by the Full Bench in Balu's case must now be regarded as settled law and should be followed, even if it were possible to question the principle or policy of the rule. New and unusual distinctions are necessarily dangerous. Periculosum est res novas inusitatas inducere.

7. The case of Shri Dharnidhar v. Chinto I.L.R. (1895) Bom. 250 is practically on all fours with the present one. There one Dharnidhar died childless leaving three widows and a daughter-in-law Venubai, the widow of a predeceased son Chintaman. His estate was taken by his widows and ultimately became vested in the last surviving widow Laxumibai. Whilst she was yet alive and in possession, the daughter-in-law Venubai adopted a son. The adopted son filed a suit to recover a part of the estate which had gone out of the possession of Laxumi-bai on the ground of his adoption. The Court held that the adoption by Venubai was illegal and had not the effect of divesting the grandmother of the estate which had come to her as the heir of her husband. Although on the first question as regards validity, in view of the decision in Balu Sakha-ram, v. Lahoo the adoption must be treated as valid and the authority to that extent regarded as overruled, on the important question as to the effect of the adoption upon the vesting of the property that decision seems to be in accord with Balu's case. Candy J. in the judgment of the Court based his decision on the following among other grounds (p. 258) :-

Strictly speaking (to adopt the language of the judgment of this Court in Chandra v. Gojarabai I.L.R. (1890) 14 Bom. 463),... according to the view taken by our Courts, there was at Dharni-dhar's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption. Therefore, even if Laxumibai assented to the adoption of plaintiff by Venubai, the plaintiff's claim would not stand against the rights of Dharnidhar's collaterals who come in now that Laxumibai has died.

That reasoning is consistent with one of the propositions enunciated by the majority of the Full Bench in Balu's case. _

8. Ordinarily Anandibai the widow of the last surviving coparcener was the only widow competent to adopt and transmit the property. But it is urged that her power to adopt was at an end even after she had succeeded to the estate of her husband as his heir because there was the son's widow capable of continuing the line. The argument which was not seriously pressed is perhaps based upon a passage in the judgment of the Privy Council in Ama-rendra Mansingh v. Sanatan Singh. Their Lordships in dealing with the power of a widowed mother to adopt during the lifetime of the daughter-in-law who had succeeded to the inheritance on the death of her husband the last surviving male copracener made the following observations (p. 256) :-

It being clear upon the decisions above referred to that the interposition of a grandson, or the son's widow, brings the mother's power of adoption to an end, but that the mere birth of a son does not do so, and that this is not based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the son's lifetime will revive.

Those observations do not apply to a case where the estate has vested in the mother-in-law to the exclusion of the daughter-in-law. I think, therefore, there is no good reason for not following the principle of the decision in Balu Sakharam v. Lahoo. The adoption of the plaintiff though valid cannot have the effect of divesting the property vested in the appellant. Consequently we think that the lower Court's decision in that respect cannot be maintained. Accordingly the appeal must be allowed, the decree of the lower Court reversed, and the plaintiff's suit dismissed with costs throughout.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //