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Walbai Vs. Heerbai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in4Ind.Cas.277
AppellantWalbai
RespondentHeerbai and ors.
Excerpt:
hindu law - adoptions--mother's sister's son cannot be adopted. - .....6th issue whether the adoption of the third defendant is invalid on the grounds that he is son of ramji's mother's sister.3. it was held by the privy council in bhagwan singh v. bhagwan singh 21 a. 412: 26 i.a. 153 that the text of sakala cited by the authors of the dattaka mimansa and dattaka chandrika on the question who can be adopted is authoritative in all parts of india, that text is as follows, according to the literal translation given to the court during the argument:a son of a sapinda or also next a sagotra, a sonless twice born should adopt.in default of son of sagotra should adopt agotra, a daughter's son, sister's son and mother's sister's son excepting.4. but defendants nos. 1 and 3 argue that the verse should be divided into two parts, that the first permits the adoption.....
Judgment:

Macleod, J.

1. One Ramji Govindji died in February 1908 leaving two widows Heerbai and Walbai, his step-mother Bhagbai, and her daughter Velbai him surviving. In March 1908 Walbai the junior widow, filed this suit for the administration of the estate of Ramji, making Heerbai and Bhagbai defendants. After the suit was filed, Heerbai purported to adopt one Jadhowji the son of Ramji's father's brother and mother's sister. Jadhowji and subsequently Walbai were added as party defendants to this suit.

2. It remains for me to come to a finding on the 6th issue whether the adoption of the third defendant is invalid on the grounds that he is son of Ramji's mother's sister.

3. It was held by the Privy Council in Bhagwan Singh v. Bhagwan Singh 21 A. 412: 26 I.A. 153 that the text of Sakala cited by the authors of the Dattaka Mimansa and Dattaka Chandrika on the question who can be adopted is authoritative in all parts of India, That text is as follows, according to the literal translation given to the Court during the argument:

A son of a Sapinda or also next a Sagotra, a sonless twice born should adopt.

In default of son of Sagotra should adopt Agotra, a daughter's son, sister's son and mother's sister's son excepting.

4. But defendants Nos. 1 and 3 argue that the verse should be divided into two parts, that the first permits the adoption of all sapindas and those of the same gotra as the adoptive father without any restriction, and that the second confines the prohibition, against the sister's sons, daughter's sons and mother's sister's sons to persons who are neither sapindas nor sagotras, that, therefore, as the third defendant is the father's brother's son of Ramji, the fact that he is also the mother's sister's son, is immaterial.

5. I should not have been inclined myself to adopt this construction.

6. The prohibition seems to me to be general, but in any event I am precluded from holding otherwise by a decision of this Court in Ramchandra Krishna Joshi v. Gopal Dhondo Joshi 32 B. 619: 10 Bom. L.R. 948 where Chaubal, J. at p.632 construes the text as follows:

In the order of selection for adoption the first choice is directed in favour of a sapinda, failing him a Sagotra, and in default of these a stranger, excepting always the specific instances mentioned, viz., a daughter's son, a sister's son, and the mother's sister's son.

7. I find, therefore, that the adoption of the third defendant is invalid.


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