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Thakarana Tejrani Vs. Sarupchand Chhaganbhai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number First Appeal No. 155 of 1917
Judge
Reported in(1920)22BOMLR209; 55Ind.Cas.964
AppellantThakarana Tejrani
RespondentSarupchand Chhaganbhai
DispositionAppeal dismissed
Excerpt:
.....to the death of a co-parcener who survived her husband; and more particularly when that later surviving co-parcener has left a widow. - - if he was not validly adopted, the plaintiffs suit must fail, because it is brought by one who has no right to redeem the mortgage. but where the circumstances are, as 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......were that the adoption had been made within the period of gestation succeeding the death of the widow's husband. those facts were the subject of argument in the case. they were expressly mentioned in the judgment, and it appears the only thing that was decided was that in circumstances of that kind an adoption would be valid. but where the circumstances are, as 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, an here, that later surviving coparcener left widows. it.....
Judgment:

Heaton, J.

1. In this case we have the Talukdari Settlement Officer on behalf of a person described as a Talukdar suing to redeem a mortgage. The mortgaged property, it is admitted, was part of the jivai estate which up to the year 1847 was vested in one Raisang, who in that year died. He left a nephew, the son of his brother, and a widow, and it was the widow and the nephew who joined in making the mortgage to redeem which this suit has been brought. The defendants opposed the claim on the ground that Narsang, the Talukdar whose estate is under the management of the Talukdari Settlement Officer, has no right to redeem the mortgage. Narsang himself is dead and was succeeded by a son Fulsangji. But the question is whether Narsang was or was not validly adopted by Surajrani, the widow of Raisang. If he was validly adopted, then the plaintiff's suit must succeed. If he was not validly adopted, the plaintiffs suit must fail, because it is brought by one who has no right to redeem the mortgage. The adoption was made by Surajrani the widow of Raisang after the death of Manbhai, the nephew of her husband. Manbhai or his father, it would seem, had held the jivai subsequent, to Raisang's death in 1847. Manbhai died in 1882 and in 1884, i. e., nearly forty years after her husband's death, Surajrani made the adoption. By the law, as it is understood in this Presidency, an adoption of this kind in a family which constituted a joint Hindu family, although the property was impartible, could not be validly made. We were, however, referred to a very recent case decided by the Privy Council last year, Partapsing v. Agarsinghji (1918) 21 Bom. L. R. 496. In that case, however, the facts were that the adoption had been made within the period of gestation succeeding the death of the widow's husband. Those facts were the subject of argument in the case. They were expressly mentioned in the judgment, and it appears the only thing that was decided was that in circumstances of that kind an adoption would be valid. But where the circumstances are, as 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, an here, that later surviving coparcener left widows. It seems to me, therefore, quite plain that the decision of the Court below[is correct and that this appeal must be dismissed with costs. One set of costs to respondent No. 1 only.

Norman Macleod, Kt., C.J.

I agree.


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