1. This is an appeal against the decision of the First Class Subordinate Judge of Satara dismissing the plaintiff's suit to recover possession of the property mentioned in the plaint with future mesne profits and other consequential reliefs. The relation between the parties will be apparent from the undermentioned genealogy :-
Rowlaji|----------------------------| |Santoo Ranoo| |Hari Gopala| || ----------------------------------| | | || Dnyanoo m. Jana Balu (daughters)| Defendant No. 4 || (Died 8th July 1907) || |-------------------------------- || | | |Balu Bayabai Dnyanoo m. Balai (daughters) || Defendant No. 3 || || ---------------------------------------- | || | Nivritti BanuRamu Ganpati (Died 7th May 1909) Defendant No. 1 Defendant No. 2
2. The following are the relevant dates in the order of events: Dnyanoo died' on July 8, 1907. Nivritti, who is alleged to be the son of Balu, died on May 7, 1909. The gift-deed passed by Jana in favour of Dnyanoo son of Hari is dated May 15, 1913, and the deed of adoption adopting the plaintiff is dated September 15, 1919. On July 4, 1921, the plaintiff sold half his share in the plaint property (except items Nos. 10, 11 as specified in the plaint) to plaintiff No. 2.
3. The plaintiff's case was that he had been adopted by Jana, defendant No. 4, wife of Dnyanoo, and that therefore the alienations made by Jana were invalid and that accordingly he and his vendee, plaintiff No. 2, were entitled to the property in suit.
4. One of the contentions of the defendants was that Jana was not the widow of the last male holder, that Dnyanoo's nephew (Balu's son) Nivritti, who was a joint coparcener with Dnyanoo, had survived Dnyanoo and that therefore Jana could not legally make a valid adoption.
5. The learned Subordinate Judge held that Nivritti was proved to have been the son of Balu and to have died after Dnyanoo. He also held that the factum of the adoption was proved. But he found that plaintiff No. 1's adoption was clearly invalid, on the ground that Nivritti had survived Dnyanoo.
6. Mr. Koyajee, for the appellant, began his arguments by a reference to certain cases that have been decided by the Privy Council subsequent to the decision of the learned Subordinate Judge. In particular, he referred to Bhimabai v. Gurunathgouda Khandappagouda (1932) L.R. 60 I. A. 25 : 35 Bom. L.R. 200, Amarendra Mansingh v, Sanatan Singh (1933) L.R. 60 I. A. 242 :35 Bom. L.R. 859, and Vijayasingji Chhatrasingji v. Shivasangji Bhimasangji (1935) L.R. 62 I. A. 161 : 37 Bom. L.R. 562.
7. Now, one effect of these decisions is that they establish that according to the law prevalent in this province a Hindu, widow, unless she was expressly forbidden by her husband to adopt a son to him, can do so, although he died-undivided and she has not obtained the consent of his surviving coparceners. In the second case referred to, their Lordships observed that having regard to the well-established doctrine as to the religious efficacy of sonship great caution should be observed in shutting upon any authorised adoption, by the of widow of a Sonless man, as the Hindu law itself sets no limit to the exercise of suchower during the lifetime of the widow. Mr. Koyajee also relied on this case particularly in support of his contention that whether there were coparceners or not existing at the time of the adoption, and even whether the family of the deceased had remained a joint family or not at the time, the power of a widow to adopt a son remains altogether unaffected by such circumstances. One of the passages relied on in this connection runs thus (p. 255)-
It necessarily follows, their Lordships think, from this decision, that the vesting the property on the death of the last holder in someone other than the adopting widow, be it either another oparcener of the joint family, or an outsider claiming by reverter, or, their Lordships would add, by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption.
8. The contention of the learned advocates for the respondents on this point mainly is that even taking for granted that the widow has the power of adopting a son in such cases, it is the effect of such adoption that is important; and the effect, according to them, is that if the adoption is made after the joint property has passed by succession from the sole surviving coparcener to his heirs, the adoption cannot have the effect of divesting the estate. In support of this contention the learned advocates rely on Chandra v. Gojarabai I.L. R(1890) 14 Bom. 463, which is refer red to at page 40 in Bhimabai v. Gurunathgouda, where their Lordships quoted with approval the following passage in Chandra v. Gojarabai.
When the inheritance devolved from Nana (the last surviving co-parcener) upon his widow ..., it devolved, not by succession, as in an undivided family, but strictly by inheritance, as if Nana had been a separated house-holder. Strictly speaking, according to the view taken by our Courts, there was at Nana's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption.
Their Lordships approved of this decision, but distinguished it from the case under consideration, viz., Bhimabai's case, on the ground that the principle in the earlier case did not apply.
9. The contention of the learned advocates for the respondents, therefore, is that though Jana might have had a right to adopt a son-though they do not admit that she had such a right-the adoption could not have the effect of divesting the estate which had vested after Dnyanoo's death in Nivritti, and which later on after Nivritti's death vested in his sister Banu. This, it is contended, is not a case of property devolving by survivorship, as the plaint property, on Nivritti's death, went by rules of succession to his sister Banu, and the argument is that on the date of adoption the property in question having already been inherited by Banu, and the adopted son, being a more distant heir to Nivritti than Banu, viz., an uncle's son, could not claim the said property.
10. In our view this line of argument is in accordance with the principles applicable to the facts of this case, and is an effective answer to the arguments advanced by Mr. Koyajee.
11. Mr. Koyajee's arguments at their best may be put thus-that plaintiff No. 1, though he was adopted in the year 1919, must be taken to be and to have the rights of Dnyanoo's son right from the time of Dnyanoo's death in 1907, and that, therefore, he must be taken to have succeeded to the estate by right of survivorship. In our opinion this really amounts to a legal fiction, in support of which we find no legal authority or justification.
11. As regards the questions of fact, viz., whether Nivritti was the last male member of the family and whether the adoption of the plaintiff was a valid adoption, we are of opinion that as regards the first the learned Subordinate Judge's conclusion must be accepted, and as regards the second that not only the factum of adoption is proved but that the widow Jana must be held to have validly adopted plaintiff No. 1. The learned advocates for the respondents, contest both these propositions. It is, however, in our opinion, unnecessary to discuss the evidence on these points at great length. On the first point the question of the onus of proof does not appear to be very important, as both the sides have adduced their evidence and the learned Subordinate Judge, before whom the evidence was given and who had an opportunity of observing the demeanour of the witnesses, has, in our opinion, rightly come to the conclusion that Nivritti was the son of Balu, and that he survived Dnyanoo who died in the year 1907. As regards the second point, in view of the recent Privy Council rulings referred to, there is no doubt in our minds that the adoption of plaintiff No. 1 by Jana, defendant No. 4, was a valid adoption.
12. Now, starting from these two facts, it seems to us that the legal position as regards the effect of the adoption is, as I have already stated, that at the elate of the adoption the position of the adopted son could not be that of a son who came into a joint family; the family in the present case had already lost its character as joint family, there being no other male member of the family except Nivritti. The being so, the rights of the adopted son to succession must be postponed after those of Banu, the sister of Nivritti.
13. In view of this conclusion we must hold that the plaintiff is not in a position to challenge the alienations made by defendant No. 4 and cannot, during the lifetime of Banu, take his stand on his adoption for this purpose. Therefore the plaintiffs' suit must fail and the appeal must be dismissed with costs.