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Radhabai Damodar Shukla Vs. Rajaram Trimbak Shukla - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 167 of 1933
Judge
Reported inAIR1938Bom383; (1938)40BOMLR559
AppellantRadhabai Damodar Shukla
RespondentRajaram Trimbak Shukla
DispositionAppeal dismissed
Excerpt:
.....law-adoption-death of last coparcener-widow of a gotraja sapinda succeeding to estate-adoption by widow-adoption valid-devolution of property not affected by such adoption.; under hindu law the power of a widow to adopt depends on considerations of a religious character ; and any widow of a hindu can adopt to her husband so long as she is the person entitled to carry on the line.; amarendra mansingh v. sanatan singh (1933) l.r. 60 i.a. 242 : s.c. 35 bom. l.r. 859, followed.; an adoption by a widow, where the coparcenery is at. an end, does not operate to divest property vested in or through the heir of the last holder.; balu sakharam v. lahoo sambhaji i.l.r. [1937] bom. 508 : s.c. 39 bom. l. r. 382, f.b. followed.; the widow of a gotraja sapinda, who succeeds under the rule established..........of defendant no. 2 did not affect the devolution of the property. the right of a widow of a gotraja sapinda like defendant no. 1 to inherit was established by the decision of the privy council, affirming the decision of this court, in lullaobhoy bappoobhoy v. cassibai , and it is not disputed that defendant no. 1's interest was a limited estate similar to the ordinary widow's estate.4. the law relating to powers of adoption in this presidency by widows and the effect of such adoptions on the devolution of property was considered recently by a full bench of this court in balu sakharam v. laboo sambhaji i.l.r. [1937] bom. 508 : 39 bom. l.r. 382, the majority of the court in that case held that having regard to recent decisions of the privy council, and particularly amarendra.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from a decision of the First Class Subordinate Judge of Nasik. The plaintiff sued to obtain a declaration that the adoption of defendant No. 2 made by defendant No. 1 on December 7, 1929, is illegal and void and not binding on him and other reversionary heirs who are in the same category as himself. Admittedly on the arguments on this appeal it may be necessary to extend that declaration by declaring that the adoption, if valid, does not affect the devolution of the property which defendant No. 1 had inherited.

2. The material facts are these. One Keshav was the owner of the suit property. He died leaving a widow Bhagirathibai, a son named Dhondiram, a daughter whose existence is not I think material, and the widow of a deceased son, who is defendant No. 1. Dhondiram died in 1899 leaving a widow, Laxmibai, and an infant son who died in 1900, and thereupon the property passed to the mother of the infant son, Laxmibai. Laxmibai died in 1901 and thereupon the property passed to the mother of Dhondiram, Bhagirathibai. She died in 1908 and the property then passed to defendant No. 1. Her claim is made through the last male-holder, i.e. the infant son of Dhondiram, and she takes as the widow of the paternal uncle of the last male-holder. In the lower Court part of the suit property was said to have descended to defendant No. 1 through Gopal, who was a nephew of Keshav, but it is admitted that defendant No. 1's power of adoption and the effect of that power on the devolution of the property is the same whether the estate devolved upon her through the infant son of Dhondiram, or through Gopal.

3. Defendant No. 1 adopted defendant No. 2 in the year 1929, and the questions which arise are, first, whether that adoption is valid, and, secondly, if it is, what effect, if any, does it have on the devolution of property after the death of defendant No. 1. She has in fact died pending the suit. The plaintiff claims through a collateral branch of the family, and it is not disputed that he is one of the reversioners entitled to the property on the death of defendant No. 1, if the adoption of defendant No. 2 did not affect the devolution of the property. The right of a widow of a gotraja sapinda like defendant No. 1 to inherit was established by the decision of the Privy Council, affirming the decision of this Court, in Lullaobhoy Bappoobhoy v. Cassibai , and it is not disputed that defendant No. 1's interest was a limited estate similar to the ordinary widow's estate.

4. The law relating to powers of adoption in this Presidency by widows and the effect of such adoptions on the devolution of property was considered recently by a full bench of this Court in Balu Sakharam v. Laboo Sambhaji I.L.R. [1937] Bom. 508 : 39 Bom. L.R. 382, The majority of the Court in that case held that having regard to recent decisions of the Privy Council, and particularly Amarendra Mansingh v. Sanatan Singh , it must be taken as established that the power of a widow to adopt depends on considerations of a religious character, and that any widow of a Hindu can adopt to her husband so long as she is the person entitled to carry on the line. But it was held that an adoption by a widow, where the coparcenery is at an end, does not operate to divest property vested in or through the heir of the last holder. So long as that decision stands it must be taken as settled that in this Presidency you may have an adoption by a widow which is valid, but which does not place the adopted son in the same position in regard to property as a natural born son would have been in.

5. The actual decision in that case was that the adoption by a widow did not divest the estate previously vested in the heir of the last holder, and Mr. O'Gorman for the plaintiff maintains that that case has no application to the facts of the present case, because at the date of the adoption defendant No. 1 was the holder of the property. It was vested in her for a widow's estate. The interest of the reversioners was not a vested interest, because Hindu law does not recognise vested remainders. It was no more than a spes successionis, and Mr. O'Gorman contends that there is nothing in the full bench decision which shows that an adoption made by a widow cannot operate to affect the contingent interests of possible reversioners. I agree with him that the point which arises here is not covered by the full bench decision.

6. But Mr. Kane relies on certain decisions of division benches of this Court and he maintains that the effect of those decisions is to show that the widow of a gotraja sapinda is not entitled to adopt so as to alter the devolution of the property after her death. It would certainly seem in accordance with sound common sense, or to use the more resounding phrase, to be consonant with principles of justice, equity and good conscience, to hold that a woman who inherits property in the family of her husband, but which had never vested in him, for an estate terminable on her death, is not entitled by means of adoption to determine the destination of the property after her death. The first case on which Mr. Kane relies is Datto Govind v. Pandurang Vinayak I.L.R. (1908) 32 Bom. 499 : 10 Bom. L.R. 692, It was there held that a Hindu widow who succeeds to an estate not her husband's but as widow of a gotraja sapinda of the last male holder under the rule established by Lulloobhoy Bappaobhoy v. Cassibai , and in consequence of the absence of nearer heirs, cannot make a valid adoption. The reasoning in that case is certainly not convincing. The Court seemed to consider that it was bound by the decision of a full bench of this Court, which was afterwards approved by the Privy Council, in Ramkrishna v. Skamrao I.L.R. (1902) 26 Bom. 526 : 4 Bom. L. R. 315.But all that that case decided was that where a Hindu dies, leaving a widow and a son, and the son subsequently dies leaving a widow, the son's widow is the person to continue the line, and in those events the power of adoption of the widow of the original holder has come to an end and cannot be revived. Applying that principle to the facts of the present case, it would show that Bhagirathibai was not entitled to adopt because her husband had been survived by a son who died leaving a widow and a son. But it does not follow that defendant No. 1 cannot adopt because, although she inherits after Bhagirathibai, she does not claim through Bhagirathibai, and her husband did not die leaving a son. So that I think that the reasoning in Datto Govind v. Pandurang Vinayak cannot be supported, and it is moreover admitted by Mr. Kane for the respondent that in view of the Privy Council cases and the recent full bench case of Balu Sakharam v. Lahoo Sambhaji I.L.R. [1937] Bom. 508 : 39 Bom. L. R. 382. it is impossible to contend that adoption by a widow of a gotraja sapinda is invalid.

7. The next case is Dattatraya Bhimrao v. Gangabai I.L.R. (1921) 46 Bom. 541 : 24 Bom. L. R. 69. The judgment in that case was delivered by Mr. Justice Shah who was a learned Hindu lawyer. I think that the decision again was that the adoption by the widow of a gotraja sapinda was invalid, but Mr. Justice Shah does say that it is clear that the adopting widow could not adopt to her husband so as to affect the devolution of the estate inherited by her as a gotraja sapinda. So that he seems to recognise at any rate that an adoption by a widow of a gotraja sapinda could not affect the devolution of property after her death.

8. The third case is Yeknath Narayan v. Laxmibai I.L.R. (1922) 47 Bom. 37 : 24 Bom. L. R. 836. In that case the actual decision of the Court was that the husband of the adopting widow was the last male holder, and, if that were so, there would be no question of the widow's right to adopt and vest the property in the adopted son. But a, question had arisen as to whether the husband of the adopting widow had or had not survived his paternal uncle Ramchandra, and the Court discussed the question whether on the assumption that they were wrong in holding that the husband had survived, nevertheless the adoption by the widow would be good, and the Court expressed the view that the widow could not adopt so as to alter the devolution of the property. Sir Norman Macleod at the conclusion of his judgment says this (p. 44) : ' The question whether those widows could have adopted so as to secure religious benefit to their husbands is an entirely different question from the one whether by such adoption they could defeat rights of inheritance.' So that he foreshadowed the distinction on which Balu Sakharam's case rests.

9. In that state of the authorities the first question which arises, namely, whether the adoption in this case was valid must, in my opinion, be answered in the affirmative. The question then arises whether such adoption had the effect of vesting the property, which defendant No. 1 had inherited from her nephew, in defendant No. 2 or whether the adoption had no operation upon the devolution of the property after her death. I think that it would be possible to answer that question in either sense without offending against any Hindu text, and without disregarding any decision which we ought to follow. In my view the answer to the question must depend mainly on considerations of expediency with particular regard to the danger of upsetting titles. There is no doubt that the three cases, Datto Govind v. Pandurang Vinayak, Dattatraya Bhimrao v. Gangabai, and Yeknath Narayati v. Laxmi-bai, which have stood for a good many years, whether or not the actual decisions were correct and whether the reasoning on which they were based is sound, do recognise that the widow of a gotraja sapinda cannot by adoption alter the devolution of the property to which she is entitled as such widow after her own death. These cases have not been expressly overruled and many titles must depend on the law which they lay down. The cases are cited in paragraph 473 of the last edition of Mulla's Principles of Hindu Law, which was published after the recent decisions of the Privy Council, for the proposition that ' A widow in Bombay who succeeds to an estate not her husband's but as a gotraja sapinda of the last male-holder, cannot make a valid adoption to her husband.' The proposition may be too widely stated in relation to the validity of such an adoption, but can in my opinion be supported in its practical effect upon the devolution of property. In my judgment the correct answer to the question before us is that the adoption of defendant No. 2 by defendant No. 1 was legal but had no effect on the devolution of property as against the plaintiff. The appeal, therefore, should be dismissed with costs.

Broomfield, J.

1. In view of Amarendra Mansingh v. Sanatm Singh and the recent full bench decision in Balu Sakharam v. Lahoo Sambhaji I.L.R. [1937] Bom. 508 : 39 Bom. L.R. 382, it is I think clear that the question of a widow's power to adopt a son to her husband and the question of the effect of the adoption on the devolution of property are distinct questions which depend on different considerations. If the widow's power to adopt has not been extinguished, according to the principles laid down by the Judicial Committee, the adoption is valid irrespective of any question of the vesting or divesting of property. On the other hand because an adoption is valid on religious grounds, it does not follow that the adopted son acquires all the rights of a natural son in respect of property or that the adoption necessarily has any effect on the devolution of property.

2. In the recent full bench case it has been held that if the property in dispute has vested in anybody except the mother herself, whether in a nearer heir or a remoter heir than the adopted son would be, the adoption will not divest the estate. It is no doubt an extension, but I think on the whole a reasonable extension of that principle to hold that in the case of an adoption by the widow of a gotraja sapinda the adoption does not affect either vested or contingent interests in the estate. So that on the death of the widow the property will in spite of the adoption go to the reversioners.

3. There is a strong current of authority in this Presidency to the effect that the widow of a gotraja sapinda cannot adopt so as to defeat the rights of the reversioners,. The authority of these cases should not be disturbed unless it is necessary to do so. It is quite true that what the Courts actually decided in those cases was that the adoptions themselves were invalid, and so far it must now be held that they were wrong. But there are indications in the judgments that the learned Judges were more concerned to prevent any interference with the devolution of property by adoptions of that kind than to hold that the adoptions themselves were not valid for religious purposes. The widow of a gotraja sapinda was only admitted into the list of heirs reluctantly and with hesitation and the special rule admitting her is confined to this Presidency. There may be many such widows and they may easily be very remote from the last male holder of the property. The view that an adoption by such a widow should not in any way affect the devolution of property belonging to the family is not, therefore, an unreasonable one. The cases relied on by the plaintiff are not overruled so far as they deal with the effect of an adoption by such a widow, and I agree with my Lord the Chief Justice that in that respect these authorities should be affirmed. I agree also that this appeal should be dismissed with costs.

Wassoodew, J.

3. I agree and have nothing to add.

4. Per Curiam. We modify the declaration by declaring that the adoption is valid but does not affect the devolution of the property inherited by defendant No. 1 as the widow of a gotraja sapinda as against the plaintiff. Appeal dismissed with costs.


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