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Vishnu Bapu Shinde Vs. Lakshmi Sakharam Shinde - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number Second Appeal No. 655 of 1930
Judge
Reported in(1935)37BOMLR193
AppellantVishnu Bapu Shinde
RespondentLakshmi Sakharam Shinde
DispositionAppeal dismissed
Excerpt:
.....of estate on adoption-adoption cannot affect estate already vested in third person.;a joint hindu family consisted of father and two sons. the elder son died leaving a widow ; thereafter the father died ; and then the younger son died leaving a widow (plaintiff). the widow of the elder son thereafter adopted defendant no. 1 :-;that the adoption was invalid as the estate of the joint family had already vested in the plaintiff.;chandra v. gojarabai (1890) i.l.r. 14 bom. 463, followed.;the case of chandra v. gojarabaf is not affected by bhimabai v. gurunath-gouda khandappagouda (1932) l.r. 60 i. a. 25, 41, s.c. 35 bom. l.r. 200 and is not overruled by amarendra mansingh v. sanatan singh (1933) l.r. 60 i.a. 242, s.c. 35 bom. l.r. 859. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka,..........he was entitled to the land.6. the trial court held, that bhavani and his sons formed a joint hindu family, that the plaintiff's husband got the land exclusively as the last survivor of the family, and that as a consequence plaintiff was entitled to recover possession of the land excluding one acre given to the illegitimate son of bapu, that court did not record a finding as to the adoption of defendant no. 1, as it was of opinion that he would not be entitled to the property even if the fact of adoption was proved. defendants appealed. the appellate court held that the adoption was proved but was not valid. that court confirmed the rest of the findings of facts arrived at by the trial court and dismissed the appeal. defendant no. 1 appealed to this court.7. both the courts had.....
Judgment:

Shingne, J.

1. The following pedigree will be useful to appreciate the facts of this case :-

Bhavani---------------------------------------------------------| | |Bapu = Dhondai Sakharam = Laxmi Tukaram.| present plaintiff. Bapu's illegitimate son Tukaram. Dhondai adopted defendant No. 1.

2. Tukaram died some time prior to 1901. Bapu died in March, 1901, Bhavani in December, 1901. Sakharam was the last to die. He died in 1904. Bapu had an illegitimate son by name Tukaram. In 1915 Dhondai adopted the present defendant No. 1.

3. The land in suit was purchased in 1900. The sale-deed is in the name of Bapu. It has been found that out of the land in the sale-deed, land measuring one acre was given to Tukaram, the illegitimate son of Bapu, and the finding is that the rest of the land in the sale-deed was given to Dhondai for her maintenance.

4. The plaintiff brought this suit to obtain possession of the land in the sale-deed alleging that the land belonged to the joint family of Bhavani and his sons and was given to Dhondai for her maintenance and that on the death of the latter, she (the plaintiff) was entitled to the land as the widow of the last surviving male member of the family. Defendant No. 2 claims as a. mortgagee from Dhondai and defendant No. 3 is a tenant of a portion of the suit land.

5. The contention on behalf of defendant No. 1 was that the land belonged to Bapu who was separate from the other members of the family and that by reason of his adoption he was entitled to the land.

6. The trial Court held, that Bhavani and his sons formed a joint Hindu family, that the plaintiff's husband got the land exclusively as the last survivor of the family, and that as a consequence plaintiff was entitled to recover possession of the land excluding one acre given to the illegitimate son of Bapu, That Court did not record a finding as to the adoption of defendant No. 1, as it was of opinion that he would not be entitled to the property even if the fact of adoption was proved. Defendants appealed. The appellate Court held that the adoption was proved but was not valid. That Court confirmed the rest of the findings of facts arrived at by the trial Court and dismissed the appeal. Defendant No. 1 appealed to this Court.

7. Both the Courts had evidently the cases of Ramji v. Ghamau I.L.R. (1879) Bom. 498 and Ishwar Dadu v. Gajabai I.L.R. (1925) Bom. 468 28 Bom. L.R. 782 in view. It was held in these cases that under Hindu law in the Bombay Presidency the widow of a deceased coparcener in a joint family has no inherent right to make a valid adoption without either the authority of her husband or the consent of the surviving coparcener of her husband. Prior to the decision in Ishwar Dadu's case, their Lordships of the Privy Council had in Yadao v. Namdeo (1921) L.R. 48 I. A. 513 24 Bom. L.R. 609 criticised the ruling in Ramji v. Ghamau, but in Ishwar Dadu's case the High Court of Bombay held that the decision in Ramji v. Ghamau was not overruled by the decision in Yadao v. Namdeo. However, all doubt on the point has now been set at rest by the decision of the Privy Council in Bhimabai v. Gurunathgouda Khandappagouda (1932) L.R. 60 I. A. 25 35 Bom. L.R. 200 As to the material facts, the pedigree given in Bhimabai's case shows that D and his three sons N, K and J constituted a joint Hindu family. D died leaving him surviving his three sons. Thereafter K separated from the family but the other two brothers remained joint. K died and his widow adopted a son in 1915. J died in 1913 leaving a widow Bhimabai. On J's death N took the family estate by survivorship. N then adopted a boy and died. On his death the property passed by survivorship to his adopted son who also died and his son D took the property. In the meantime Bhimabai adopted a boy in 1919. Thereafter D died and his mother handed over the property to K's son, as it was watan property. The latter brought a suit for a declaration that he was lawfully in possession of the property. Bhimabai was defendant No. 1 and her adopted son defendant No. 2. Plaintiff succeeded up to the High Court. Bhimabai and the adopted son appealed to the King in Council and succeeded and the suit was dismissed. It was held that under the Hindu law, as prevalent in the Maratha country of the Bombay Presidency, the widow of a coparcener in a joint Hindu family has power to make a valid adoption without either the express authority of her husband or the consent of the surviving coparcener. Their Lordships followed Yadao v. Namdeo and observed that the full bench decisions of this Court referred to above were no longer good law.

8. In Yadao v. Namdeo it was held that according to the western school of Hindu law, as prevailing in the Bombay Presidency, a widow in a joint Hindu jamily can adopt a son (unless she has been expressly prohibited by her husband from doing so) without the consent of her husband's coparceners, independently of the fact that her husband's estate is not vested in her. In an earlier case-Bachoo Hurkisondas v. Mankorebai (1907) L.R. 34 LA. 107 9 Bom. L.R. 646-a Hindu died leaving considerable property and two sons by name Hurkisondas and Bhagwandas. They held the property as members of a joint Hindu family governed by the Mitakshara law. Hurkisondas died in September, 1900. His widow gave birth to a son on December 18, 1900. Bhagwandas died a day earlier on December 17, 1900, leaving him surviving a widow and a daughter. A year after his death, Bhagwandas' widow adopted a boy. A suit was filed on behalf of the posthumous son of Hurkisondas. It was prayed that he was entitled to the whole property. His suit was dismissed by the High Court (vide 6 Bom. L.R. 268). An appeal was filed against the decree. Their Lordships of the Privy Council held that the adoption was valid and the appeal came to be dismissed.

9. It was argued by Mr. Chitale on behalf of defendant No. 1 that, having regard to the three rulings of the Privy Council referred to above, the adoption of defendant No. 1 must be held valid and the suit dismissed. Before considering this contention, it is necessary to refer to Chandra v. Gojarabai I.L.R. (1890) Bom. 463 In that case, Krishnaji and his two sons, Bhau and Nana, were members of an undivided Hindu family. Bhau died first. Then Krishnaji died. On his death Nana' succeeded to the family property. Nana died leaving him surviving his widow Gojarabai, who went into possession of the property. There-after Bhau's widow adopted the plaintiff, who brought a suit against Gojarabai to recover the property. The adoption was made in accordance with the authority given by Bhau as found by the first Court. But there was no rinding of the District Court on the point. The suit was thrown out in the District Court and the High Court confirmed the decree of the District Court. It was held in that case that an adoption by a widow under her husband's authority has the effect of divesting an estate vested in any member of the undivided family of which the husband was himself a member, but the adoption, though authorised by the husband, cannot divest the estate vested in a collateral -relation of the husband in succession to some other person who had himself become the owner in the meantime. This decision was considered in Bhimabai's case and their Lordships distinguished it and with reference to the facts in the later case observed thus (p. 41) :-

The adoption of appellant No. 2 was not made after the extinction of the coparcenary but during its subsistence.... Their Lordships are, therefore, of opinion that the principle of the decision...does not apply.

The decision in Chandra v. Gojarabai was thus distinguished but was not overruled. It is important to note that Telang J. in his judgment in Chandra v. Gojarabai had observed that the case of Sri Raghunadha v. Sri Brozo Kishoro (1876) L.R. 31. A. 154 I.L.R. 1 Mad. 69 which will be referred to in para. 15 hereafter, was a clear authority for the proposition that if the question had arisen between the adopted son and Nana, the deceased coparcener in Chandra's case, the former would have been entitled to succeed. It may be noted that in Bhimabai's case, as stated above, Chandra v. Gojarabai was distinguished on the same line of reasoning as the one adopted by Telang J. Evidently, therefore, the abovementioned contention urged by Mr. Chitale cannot be accepted.

10. Since the decision in Bhimabai's case, their Lordships of the Privy Council delivered another judgment : vide Amrendra Mansingh v. Sanatan Singh : (1933)35BOMLR859 . Relying on that decision Mr. Chitale for defendant No. 1 argued that even if the aforesaid decision relied upon by him may not help him, still it is clear that the decision in Chandra v. Gojarabai, referred to above, has been practically overruled by the decision in Ainarendra Mansingh's case. In that case Raja Rajendra, a Hindu, governed by the Mitakshara school, had made a will authorising his wife to adopt in case of his death without a son. A son was subsequently born. Raja Rajendra died leaving the son and a widow. The son succeeded to his father's estate but died unmarried at the age of twenty years and six months. By a family custom females were excluded from inheritance, and on the son's death the estate was claimed by the plaintiff, his nearest collateral heir. Some time after the death of her son, Raja Rajendra's widow adopted the defendant as son to her deceased husband. Plaintiff thereupon sued for possession of the estate. He challenged the validity of the adoption.

Held ; that though the mother was precluded by custom from inheriting to her son, and the adoption by her had the effect of divesting the estate which had previously vested in the plaintiff, her power of adoption under her husband's authority was not exhausted at the death of her son, and that the adoption of the defendant was valid.

Asuming that the son, though unmarried, had attained full ceremonial competence, the mother's authority to adopt was not extinguished on his death,,. The mother's power of adoption would be extinguished on the son's death by the survival of either a grandson or the son's widow. In other words, it is the interposition of a grandson, or the son's widow, that brings the mother's power of adoption to an end.

Where, therefore, the son dies himself sonless and unmarried, the mother's power to adopt (which was necessarily suspended during the son's life-time) revives.

11. There were two contentions advanced in that case. They were : (1) When once the estate had vested in an heir of the last male holder, other than the adopting widow, the power of adoption was at an end ; and (2) where the husband, from whom the power to adopt was derived, left a son to succeed him and that son attained full legal capacity to continue the line, the power of his mother to adopt a son was at an end and that this would be the case whether the family was separate or joint.

12. As regards the first point, their Lordships at the outset observed that the foundation of the doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuation of the line and the solemnization of the necessary rites, and then their Lordsihips proceeded to consider how far the decided cases had accepted the principle and how far the principles deserved to be applied or limited. Their Lordships considered various rulings on the point as to whether the vesting of property in another person as the heir of the last male holder came in the way of adoption by a Hindu widow. Naturally, some of the rulings relate to cases where the adopting widow is the mother who succeeds to the son by inheritance. Some of them are of a different kind. The rulings were considered under different divisions : (1) when the son (who naturally succeeds to his father's property) dies during the lifetime of his mother leaving a son or a widow ; (2) when he dies sonless and unmarried leaving only his mother behind ; and (3) when on the death of the son without leaving male issue, owing to a custom excluding females from inheritance, the mother, who would ordinarily have succeeded, is passed over and the property goes to his nearest collateral heir. Besides the cases in these three divisions or groups, their Lordships also considered cases dealing with succession in a joint Hindu family where on the death of a coparcener, the estate, whether impartible or otherwise, passes to the surviving coparcener. In this class of cases, their Lordships observed that it has been held that the vesting of the family property in another coparcener of the joint Hindu family does not put an end to the power of adoption. In this group, their Lordships mentioned the following cases : Sri Raghunadha v. Sri Brozo Kishoro, Bachoo Hurkisondas v. Mankorebai, and Yadao v, Namdeo,

13. While considering the first of these divisions, their Lordships observed (p. 867) .-

So far then, their Lordships think, it was well established that a power of adoption in a mother was extinguished when her son had died leaving a widow to whom the son's estate passed by inheritance. But though undoubtedly certain passages in the judgments relied on seemed to suggest that it was the succession to the estate by the son's widow that was the determining factor, and, as was stated by a learned Hindu Judge in 1900, 'the whole current of recent decisions has been to base this limitation solely on the question whether the widow's act of adoption derogated from her own rights or the vested rights of others' (per Ranade J. in Venkappa Bapu v. Jivaji Krishna), yet it was never so laid down by the Board in precise terms. The dominant consideration may have been the right of property,, and equitable claims may not have been without their influence, but the religious and ceremonial side was not altogether ignored.

An observation subsequently made in the judgment may also be usefully mentioned here. It is (p. 871):-

It being clear upon the decisions above referred to that the interposition of a grandson, or the son's widow, brings the mother's power of adoption to an end, but that the mere birth of a son does not do so, and that this is not based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the son's lifg-time will revive.

14. As to the second division, their Lordships observed (p. 868):-

It must, be taken as settled law that where the son dies in infancy, or before attaining what is often referred to as ' ceremonial competence,' leaving his mother as his heir, her power of adoption is still exercisable :...It will, however, be necessary to consider the limits of this particular doctrine later on.

Towards the end of the judgment, the limits were laid down.

15. Proceeding to consider the cases in the remaining division, their Lordships referred to the case of Sri Raghunadha v. Sri Brozo Kishoro, where on the death of an elder brother in an undivided family the estate, which was impartible, had devolved on the younger brother. Two years after the death of her husband, the. widow of the elder brother adopted a son to him. It was held that the adoption had the effect of defeating the right of the younger brother to the estate and that the adopted son was entitled to possession. As to this case, if I am not mistaken, their Lordships observed that (p. 870):-.now the case law has arrived at a point where it would be impossible to say that the sole test of the validity of an adoption is the vesting or divesting of property.

Another case referred to on this point was that of Bachoo Hurkisondas v. Mankorebai I.L.R. (1900) Bom. 306 2 Bom. L.R. 1101 I have already referred to the case and to Yadao v. Namdeo above. The next case considered is that of Prolapsing Shivsing v. Agarsingji Raisingji (1918) L.R. 46 IndAp 97 21 Bom. L.R. 496 where the litigation related to a village which had formed part of an impartible estate in the District of Ahmedabad(Bombay Presidency) and had been the subject of a maintenance grant to a junior branch of the family. By the custom of the family, such grants reverted to the estate upon failure of male heirs of the grantee, widows not being entitled to inherit. In 1903 the last holder of the grantee's branch died leaving a widow. In 1904 the widow adopted a son. It was held by their Lordships that the adopted son was entitled to the estate. It was held that the right of the widow to make an adoption is not dependent on her inheriting her husband's estate and that Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without a male issue until the death of the widow renders the continuation of the line by adoption impossible. In connection with this case, their Lordships in Amrendra Mansingh's case observed as follows (p. 870) :-

It necessarily follows, their Lordships think, from this decision, that the vesting of the property on the death of the last holder in someone other than the adopting wi'dow, be it either another coparcener 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. If in Pratapslng's case the actual reverter of the property to the head of the iamily did not bring the power to end, it would be impossible to hold in the present, case that the passing by inheritance to a distant relation could have that effect any more than the. passing by survivorship would in a joint family.

Mr. Chitale relies on these observations in support of his argument.

16. The point to be considered is whether this expression of opinion is wide enough to overrule the decision in Chandra v, Gojarabai. The following points may be noted in this connection : (1) The case was not referred to in the judgment under consideration, that is to say in the judgment in Amrendra Mansingh's case. (2) Their Lordships observed in the judgment that in dealing with the succession in a joint jamily, it is clear under the decisions of the Board in Sri Raghunadha v. Sri Brozo Kishoro, Bachoo Plurkisondas v. Mankorebai and Yadao v. Namdeo that the vesting in another coparcener does not put an end to the power of adoption (p. 868). (3) In Bhimabai's1 case, after considering the case of Chandra v. Gojarabai, their Lordships observed that the adoption in Bhimabai's (1932) L.R. 60 I. A. 25 35 Bom. L.R. 200 case was not made after the extinction of the coparcenary, but during its continuance, and completed the consideration of the case by observing thus : ' Their Lordships are, therefore, of opinion that the principle of the decision mentioned above (that is to say the decision in Chandra v. Gajarabai) does not apply '. Having regard to these circumstances, the observations cited in para. 15 of my judgment will not, I respectfully say, lead to the overruling of the decision in Chandra v, Gojarabai. It no doubt appears that: in Amarendra Mansingh's case their Lordships took a survey of the law and expressed the view that the power of a Hindu widow to adopt is not dependent in any way on the vesting or divesting of property and held that the validity of an adoption must be determined by spiritual rather than temporal considerations, the consequent devolution of property on the adopted son being mere accessory to it and altogether a secondary consideration. But having regard to the way in which Chandra v. Gojarabai was dealt with in Bhimabai's case and noting at the same time that the case was not expressly overruled in Amarendra Mansingh's case, I am respectfully inclined to the view that Chandra v. Gojarabai is still good law. Moreover, having regard to what has been stated above, I do not think that the decision has been overruled by implication.

17. As already stated, the decision in Amarendra Mansingh's case lays down that the foundation of the doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the spiritual welfare of the souls of his ancestors. Even according to their Lordships, there is a limitation upon the power of adoption exercisable by the mother, however anxious she may be to promote the spiritual welfare of the souls of her deceased husband and others. In such a case, if, for instance, the son's widow, who succeeds to the property as the heir to her husband, does not adopt, the mother cannot, as the decisions go, adopt or compel the former to adopt. This will presumably lead to the absence of a male person in the family to perform the religious rites. Just as in such a case, the existence of the son's widow bars the mother from adopting a boy, It may be that in a case like the one which I am considering in this appeal, the existence of the plaintiff-the widow of the last male holder-can as well serve as an impediment in the way of adoption by Dhondai. I need not, however, pursue the point further, as I think that the reasons given by me in paragraph 16 of this judgment are, in my opinion, sufficient to decide this appeal.

18. I hold that the adoption of defendant No. 1 is invalid and confirm the decree of the lower appellate Court and dismiss this appeal with costs.


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