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Vaijoba Shamrao Vs. Vasant Abaji - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 291 of 1965
Judge
Reported inAIR1974Bom111; (1973)75BOMLR663; ILR1973Bom1325; 1973MhLJ1004
ActsHindu Adoptions and Maintenance Act, 1956
AppellantVaijoba Shamrao
RespondentVasant Abaji
Appellant AdvocateS.P. Kurdukar, Adv.
Respondent AdvocateK.H. Kulkarni, Adv.
Excerpt:
.....a grandson, the deceased's duty to continue the line is passed to the son or the grandson and the widow's power to adopt is not extinguished forever but only remains in abeyance - if the son or the grandson dies before the widow without leaving anybody to continue the line, the power of the widow gets revived and adoption by her thereafter is valid - - 1. an interesting question regarding the vexed controversy about the limits of a hindu widow's power to adopt is involved in this case. in other words the supreme court laid down that she could not adopt in the presence of a son, grandson or great-grandson and further this limitation though not founded on the shastras was a well established limitation and was not repugnant to hindu law. but it is also well established that every case..........to rajaram and tulsiram, issued by the tahsildar's office. latur, the said extracts do show that rajaram died on 13.7.1356 f and tulsiram died on 4.6.1356 f. this application was filed in this court on september 15, 1972. 7 years after the above appeal was filed. the extracts appear to have been taken on september 13, 1972. the reason given for non-production of these extracts in the lower courts is that the police patil of the village, who had maintained the register of deaths, was murdered immediately after the police action and when the defendant asked the son of that police patil, the son could not given any information. this is hardly a reason for non-production of the extracts which could have been easily obtained from the tahsildar's office. in any event, i do not find any.....
Judgment:

1. An interesting question regarding the vexed controversy about the limits of a Hindu widow's power to adopt is involved in this case. Respondent minor plaintiff, Vasant Abaji filed on October 10, 1961, through his guardian a suit against the defendant, who is the appellant in the above second appeal, for a declaration that the said plaintiff is the owner of the suit properties and for possession thereof with mesne profits. The plaintiff claimed to have been adopted by Gangabai the widow of Abaji on November 7, 1953.

2. The defendant resisted the suit denying the factum and the validity of the adoption. He challenged the validity of the adoption on the ground that Gangabai's power to adopt had come to an end, as Abaji, her husband had left behind a son Tulsiram, who had two sons Bhaurao and Rajaram and all of them died leaving behind Muktabai the widow of Rajaram. In other words, although on the date of the adoption, the sons and grandson were dead, the power of Gangabai which had come to an end was contended to have been extinguished for ever.

3. The defendant's contentions were overruled by the Civil Judge. Auza, on September 26, 1963 and a decree was passed in favour of the plaintiff. that decree was confirmed in appeal by the Assistant Judge. Osmanabad, on November 30, 1964. The two Courts below held that Bhaurao and Rajaram, sons of Tulsiram having predeceased him and Tulsiram himself having died in 1947 and Rajaram's widow Muktabai having remarried in 1948, Gangabai could validly adopt the plaintiff. The said concurrent finding are challenged in the above second appeal.

4. Civil application No. 2265 of 1972 is filed by the appellant for leave to produce additional evidence in the form of extracts of death register relating to Rajaram and Tulsiram, issued by the Tahsildar's Office. Latur, The said extracts do show that Rajaram died on 13.7.1356 F and Tulsiram died on 4.6.1356 F. This application was filed in this Court on September 15, 1972. 7 years after the above appeal was filed. The extracts appear to have been taken on September 13, 1972. The reason given for non-production of these extracts in the lower Courts is that the Police Patil of the village, who had maintained the Register of Deaths, was murdered immediately after the Police Action and when the defendant asked the son of that Police Patil, the son could not given any information. This is hardly a reason for non-production of the extracts which could have been easily obtained from the Tahsildar's Office. In any event, I do not find any reason to admit the additional evidence at this stage when Mr. Kulkarni learned Counsel for the respondent-plaintiff, says that he was served with the copies only on September 20, 1972. such conduct on the part of the parties cannot be encouraged by condoning unnecessary delay and creating further defendant appears to be in possession of the property. Civil application No. 2265 of 1972 is, therefore rejected and the additional evidence sought to be produced by the appellant must be therefore, ignored.

5. Even assuming for a moment that this additional evidence falsifies the finding recorded by the two Courts that Rajaram predeceased Tulsiram. I do not think that it would be sufficient to set aside the decrees passed against the appellant by the Two Courts below. The main point in this case is whether on November 7, 1953, when the adoption of the plaintiff took place, Gangabai, the widow of Abaji had power to adopt him.

6. On behalf of the defendant, it was contended both in this Court and in the lower Court that in view of the decision of the Supreme Court in Gurunath v. Kamalabai, : [1955]1SCR1135 , Gangabai could not adopt Vasant as she had a son and grandson and grandson's widow notwithstanding the death of the son and grandson before the adoption and remarriage of the widow of Rajaram Muktabai in 1948. It is true that after reviewing the various decisions dealing with the limits of widow's power to adopt the Supreme Court laid down in the above case that it was too late in the day to say that there are no limitations of any kind on the widow's power to adopt excepting those that limit the power of her husband to adopt. In other words the Supreme Court laid down that she could not adopt in the presence of a son, grandson or great-grandson and further this limitation though not founded on the Shastras was a well established limitation and was not repugnant to Hindu law. But it is also well established that every case is an authority as to what it decides and every proposition made in the case cannot be logically extended without any regard for other well established principles.

7. In that particular case, Gurunath, the plaintiff claimed that he was adopted in 1943 by Gangabai junior widow of one Krishtarao, who died in 1890 leaving him surviving two widows. Radhabai and Gangabai and a son Datatraya. Dattatraya died in 1913 leaving him surviving a widow Sunderibai and a son Jagannath. Sunderibai died shortly after Dattatraya while Jagannath died in the year 1914. After an interval of about 30 years since his death, it was alleged that Gangabai who sur both her son and grandson adopted the plaintiff. Gurunath filed a suit on March 15, 1944, as the adopted son of Krishtarao for possession of the suit properties. the defendants who were the sons and grandsons of the first cousin of Krishtarao contended that the adoption of Gurunath was invalid as Gangabai's power to adopt was extinguished, when Dattatraya died in 1913, leaving behind him a widow Sunderibai and a son Jagannath who could continue the family line. The trial Judge upheld the defendant's contention and dismissed the plaintiff's suit thought the factum of adoption was held proved. this Court upheld that decision. The plaintiff thereafter appealed to the Supreme court. The supreme Court upheld the view of the High Court that Gangabai's power to adopt came to an end at the time when her sons died leaving a son and a widow to continue the family line.

8. That decision was held in applicable to this case by the appellate Court, because the two Courts found that Tulsiram died after Bhaurao and Rajaram. That is a finding of fact based on appreciation of evidence which will be binding on the parties in second appeal. It is that finding which the appellant seeks to challenge by producing additional evidence in the form of extracts showing that Tulsiram predeceased Rajaram. But even assuming that Rajaram died subsequent to Tulsiram in my judgment. Gurunath's case is inapplicable to the facts of the case because Rajaram did not leave behind a son and a widow to continue the line as in Gurunath's case.

9. It is to be noted that even Gurunath's case is founded on the earlier decision of the Privy Council in Amarendra Mansing v. Santhan singh. . In fact, the Supreme Court has, with respect, reiterated the law as stated by the Privy Council in Amarendra's case.

10. In Amarendra's case, a Hindu governed by the Banaras school was survived by an infant son and a widow to survived by an infant son and a widow to whom he had given authority to adopt in the event of the son dying. The son succeeded to his father's impartible Zamindari but died unmarried at the age of 20 years and 6 months. By a custom of the family which excluded females from inheritance the estate did not go to him mother but became vested in a distant collateral. a week after the son's death she made an adoption. it was held that the adoption was valid and it divested the estate vested by inheritance in the collateral. all the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Court observing as follows :

'In their Lordships opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide of the continuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance the father's duty has been performed and the means provided by him for its fulfillment spent, the 'debt' he owed is discharged and it is upon the new generation that the duty is now cast and the burden of the 'debt' is now laid'.

It can, they thought hardly be doubted that in this doctrine the devolution of property though recognised as the inherent right of the son is altogether a secondary consideration that the validity of an adoption is to be determined for spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing and the consequent devolution of property a mere accessory to it.

11. With regard to the widow's power to adopt, it was observed.

'The Hindu law itself sets no limit to the exercise of the power during the lifetime of the widow and the validity of successive adoptions in continuance of the line is now well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property.

But that there must be some limit to the exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect, has long been recognised both by the Courts in India and by this Board, and it is upon difficult question of where the line should be drawn, and upon what principle that the argument in the present case has mainly turned'.

In connection with that question, after consideration of the previous cases cited before them the privy Council ultimately laid down : (1) that the true principle must be founded upon the religious side of the Hindu doctrine to which they have already adverted : (2) that the interposition of a grandson, or the son's widow, bring the mother's power of adoption to an end, but that the mere birth of a son does not do so; that this is not based upon a question of vesting or divesting or property; and 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: (3) but that 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.

12. The same principles were followed in Vijaysingji Chatrasingji v. Shinvasnagi Bhimasangji, , Sir Shadi Lal observed at page 165:

'As observed by this Board in Amrendra Mansingh's case, the power of a widow to adopt does not depend upon the question of vesting or divesting of the estate. the purpose of an adoption is to secure the continuance of the line, and when the natural son has left no son to continue the line, nor a widow to provide for its continuance by adoption, his mother can make a valid adoption to her deceased husband, although the estate is not vested in her'.

These principles were considered by Divatia. J., in Anant Govind Ginde v. Dnyaneshwar Balkrishna Ginde, : AIR1944Bom195 . In that case, the property in dispute belonged to on Balakrishna. Balakrishna died leaving him surviving his widow yesubai and two sons Vithal and Anant. The younger son Anant was married to Sunderibai, but had no issue. Anant died on October 2, 1901, and Sunderibai died on October 18, 1901. Vithal died unmarried four or five years afterwards. The mother Yesubai was then in possession of the property. she adopted Dnyaneshwar (Plaintiff) on December 7, 1932, and died on December 18, 1932. On December 5, 1938, the plaintiff sued to recover possession of the property from defendant No. 1 who claimed to be an agnate of Balakrishana. It was held that the adoption was valid, because on the death of the second son without widow or issue his mother was the only person in the family who could continue the line by adoption.

13. The important question, therefore, is whether the line could be continued by any one other than Gangabai in the present case, when she adopted the plaintiff. The only answer to this question is that there was none to continue the line of Abaji on that day. There was also none to continue the line of Tulsiram or Rajaram on that day. In these circumstances, it should be held that Gangabai had power to adopt the plaintiff.

14. Dr. Kane, in his History of Dharma Shastra, Vol. III at pages 665-666, has made the following observations with reference to the revolution brought about by Amarendra's case. AIR 1933 PC 156.

'In one of the latest cases on adoption that revolutionised the law the privy Council emphasize the peculiar religious significance that has attached to the sons among all classes of Manu verses 106, 107, 137, 138 of which are instinct with this doctrine, hold that the foundation of Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites and that in this doctrine the devolution of property, though recognised as the inherent right of the son, is altogether a secondary consideration'.

15. Following therefore the decisions of the Privy Council and the principle which is to be followed after Amarendra's case in determining the power of a widow to adopt, it must be held in the facts and circumstances of the present case that when Gangabai adopted the plaintiff, there was no one else to continue the line of Abaji, her husband and hence the adoption of the plaintiff that the factum of adoption proved. That is a finding of fact and the same is binding on the parties in the second appeal.

16. In the result, second appeal is dismissed with costs.

17. Appeal dismissed.


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