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Shivbasappa Lagmappa Manoli Vs. Nilava Satapa Manoli - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 14 of 1921
Judge
Reported inAIR1923Bom17; (1922)24BOMLR1162
AppellantShivbasappa Lagmappa Manoli
RespondentNilava Satapa Manoli
DispositionAppeal dismissed
Excerpt:
.....which had already vested in the widows of the last surviving co-parcener.;per shah acting c.j.- yadao v. namdeo (1921) l.r. 48 i.a. 513; 24 bom. l.r. 609 cannot be taken as overruling the current of decisions of which chandra v. gajarabai (1890) i.l.r. 14 bom. 463 is a type. - - 498 those decisions are no longer good law, and that as a logical consequence of the observations relating to the decision in ramji v. ghamau, it follows that the adoption would be good even after the death of the last surviving co-parcener of the joint family so as to have the effect of divesting the estate vested in the widow or widows of the last co-parcener. 209. but where the circumstances are, us they are here, it seems to me quite plain that we must follow what is well-understood as the ordinary law..........course of the argument has been taken. after the filing of the appeal, however, the decision in yadao v. namdeo (1921) l.r. 48 indap 513; 24 bom. l.r. 609 has rendered it possible for the appellant to raise the contention that the adoption would have the effect of divesting the estate vested in defendants nos. 2 and 8 on the death of basvanta. it is urged that, though, according to the decisions of this court, the plaintiff would have no case, in view of the observations of their lordships of the privy council in yadao v. namdeo relating to the fall bench ruling of this court in ramji v. ghamau i.l.r. (1879) 6 bom. 498 those decisions are no longer good law, and that as a logical consequence of the observations relating to the decision in ramji v. ghamau, it follows that the adoption.....
Judgment:

Lallubhai Shah, Acting C.J.

1. [After dealing with questions of fact and holding that Basvanta was the last to die and that the factum of adoption was proved, the judgment proceeded:-] In the lower Court no question was raised as to the effect of the finding that Basvanta and Lagmappa were members of a joint family of whom Lagmappa died first and Basvanta afterwards. It was accepted that the result of that finding would be to negative the plaintiff's claim; and in the memorandum of appeal before us no such point as has been raised in the course of the argument has been taken. After the filing of the appeal, however, the decision in Yadao v. Namdeo (1921) L.R. 48 IndAp 513; 24 Bom. L.R. 609 has rendered it possible for the appellant to raise the contention that the adoption would have the effect of divesting the estate vested in defendants Nos. 2 and 8 on the death of Basvanta. It is urged that, though, according to the decisions of this Court, the plaintiff would have no case, in view of the observations of their Lordships of the Privy Council in Yadao v. Namdeo relating to the Fall Bench ruling of this Court in Ramji v. Ghamau I.L.R. (1879) 6 Bom. 498 those decisions are no longer good law, and that as a logical consequence of the observations relating to the decision in Ramji v. Ghamau, it follows that the adoption would be good even after the death of the last surviving co-parcener of the joint family so as to have the effect of divesting the estate vested in the widow or widows of the last co-parcener.

2. On behalf of the respondents it is urged that whatever the effect of the observations in Yadao v. Namdeo may be as regards the power of the widow during the continuance of the joint family the current of decisions of this Court with regard to the inability of a widow to adopt so as to divest the estate vested in a third party is not touched in any way, and that that current of decisions cannot be treated as having been overruled by the observations which are directly made with reference to the decision in Ramji v. Ghamau. The current of decisions referred to begins from the year 1871 when Rupchand Hindumal v. Rakhmabai (1871) 8 B.H.C.R.A.C. 114 was decided; then we have the decision in Chandra v. Gajarabai I.L.R. (1890) 14 Bom. 463 which is strongly relied upon by the respondents. They also rely upon the observations in Vasudeo v. Ramchandra I.L.R. (1896) 22 Bom. 551 and Payapa v. Appanna I.L.R. (1898) 23 Bom. 327.

3. The question that arises in virtue of the observations in Yadao v. Namdeo is that if the widow of a deceased coparcener in a joint family could adopt validly, even in the absence of any express authority from her husband, without the consent of the surviving coparceners, whether it is necessarily implied that that adoption, even when effected after the death of the last surviving coparcener of the joint family, and after the estate has vested in the widow or widows of that last deceased coparcener, would be valid or rather have the effect of divesting the estate so vested in the widows. It is not necessary for the purpose of this case to examine the point decided in Ramji v. Ghamau along with the earlier and later decisions on that point in the light of the observations in Yadao v. Namdeo (1921) L.R. 48 IndAp 513; 24 Bom. L.R. 609. It is clear, however, that for a long time in this Court the rule is accepted as stated in Tejrani v. Sarupchand Chhaganbhai I.L.R. (1919) 44 Bom. 483; 22 Bom. L.R. 209.

But where the cirCumstances are, us they are here, it seems to me quite plain that we must follow what is well-understood as the ordinary law in this Presidency and apply it to the facts. The widow of a deceased coparcener of a joint Hindu family cannot, in the absence of any specific authority, make an adoption subsequent to the death of a coparcener who survived her husband; and more particularly when, as here, that later surviving coparcener left widows.

4. That undoubtedly was the law as understood and accepted in this Presidency before the decision in Yadao v. Namdeo. In the present case, we are not directly concerned with the, decision in Ramji v. Ghamau, We are concerned with another current of decisions to which I have referred, and the question is, whether after the death of the last surviving coparcener, when the estate has vested in the widow of that coparcener the adoption effected by a widow of a predeceased coparcener could have the effect of divesting that estate. On that point it seems to me to be quite safe to say that the decision in Yadao v. Namdeo is Silent. It is difficult to accept that the effect of that decision is to overrule by implication the current of decisions on that point. It is an oft-repeated caution that a decision is an authority for what it decides, and that it is not an authority for what may seem to be a logical consequence of that decision. In the present case I am not clear at all that because a widow of a predeceased coparcener can adopt without the consent of the surviving coparceners, even in the absence of any specific authority from her husband during the life-time of the coparcener, necessarily or logically even after the death of the last surviving coparcener when the joint family has ceased, and the property has devolved upon the heirs of the last surviving coparcener, she can make a valid adoption so as to divest the estate already vested in the heirs of the last male owner. Mr. Nilkanth has not been able to cite any authority in support of his argument for the appellant. But it is urged by Mr. Coyajee on behalf of the respondents that the decision in Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom. 526; 4 Bom. L.R. 315 which has been approved by their Lordships of the Privy Council in Madana Mohana v. Purushothama has the effect of recognising this principle that the right of a widow to adopt may be extinguished owing to certain events or circumstances, and where that is the case it does not matter whether she had originally a right to make an adoption to her husband. It is urged that in the present case when the last surviving coparcener, i.e., Basvanta, died the right of the widow of Lagmappa to adopt came to an end. The application of the principle accepted in Ramkrishna v. Shamrao with reference to the facts such as we have in the present case is not to be found in any reported case so far. But it is open to the respondents to urge with force that there is no reason why that principle should not be so applied as to put an end to the power of the widow to adopt, when the estate is vested already in others. Though no decision exactly bearing on the facts of the present case has been cited to show that the principle of Ramkrishna v. Shamrao can apply to facts such as we have here, it may be said that the principle has been applied under varying circumstances; for instance it has been applied to the case of widows who inherit property under the rule laid down in Lallubhai Bapubhai v. Mankuvarbai I.L.R. (1876) 2 Bom. 388. However that may be, I am entirely unable to give effect to the plaintiff's contention that Yadao v. Namdeo must be taken as overruling the current of decisions to which I have referred, and of which the decision in Chandra v. Gajrabai is a type.

5. I may mention with reference to this point that after the decision in Yadao v. Namdeo, I had more occasions than one to refer to that case. First it was referred to in Bhau v. Narasagouda : (1921)23BOMLR1272 to which Mr. Justice Fawcett was a party' and then in Dattatraya v. Gangabai (1921) 24 Bom. L.R. 69. It is also referred to in Yeknath v. Laxmibai : (1922)24BOMLR836 . I refer to these decisions for the purpose of showing that except as to the effect of Yadao v. Namdeo on the decision in Ramji v. Ghamau, it has not been go far accepted as overruling the decisions of this Court which may appear somewhat inconsistent with the view taken in that case, but which bear on a distinct point that did not arise and was not in terms considered in Yadao v. Namdeoi I am fully alive to the force of the contention of the appellant that in view of the observations in Yadao v. Namdeo, all these decisions, not only that in Ramji v. Ghamau but the others also to which I have referred, should be reconsidered. But in view of the settled rule on this point and of the effect which a reconsideration of it would have upon titles to property, I do not think that it ought to be departed from by this Court in the absence of a clear ruling of the Privy Council to that effect.

6. The facts in the present case are rather peculiar, and it may appear anomalous that, though according to the observations in Yadao v. Namdeo defendant No. 4 could have adopted after Lagmappa's death without Basvanta's consent during the three days that Basvanta survived Lagmappa, her power to adopt should have practically come to an end on Basvanta's death on October 25, or rather it should have become ineffective for the purpose of divesting the estate in the widows of Banvaota. But the principle and the dividing line are clear; and for the sake of a logical application of the theory of the inherent power of a widow to adopt in this Presidency which is probably a deviation from Hindu law as observed by their Lordships in Yadao v. Namdeo, and for which, speaking with, great deference, I am unable to find any support in any text of Hindu law, I do not think that it would be right to depart from a rule which is laid down in various decisions of this Court and which is clearly understood and uniformly followed up to now. On the contrary it would be carrying the probable deviation from Hindu law distinctly a step further as affecting the devolution of property for which it would be difficult to find a justification in the principles governing the law of adoption. The result is that the decree of the lower Court is confirmed and the appeal dismissed with costs.

Crump, J.

7. I concur.


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