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Gangabai Joshi Vs. Hari Ganesh Joshi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 131 of 1920
Judge
Reported inAIR1921Bom446; (1921)23BOMLR500
AppellantGangabai Joshi
RespondentHari Ganesh Joshi
Excerpt:
hindu law-adoption-conditional adoption-adopting widow having life interest only-adopted son cannot agree to give her absolute interest- reversioner-contingent interest of reversioner during widow's life-time.;a hindu testator devised his property to his daughter (plaintiff) for life and after her death to her son. on the death of the son, the plaintiff adopted the defendant, who was a major, on condition that he would not claim any right to the property. the defendant having asserted, his right to the property against the plaintiff:-;that, while the plaintiff was not the absolute owner of the property she was still entitled to an injunction restraining the defendant from taking possession of the property or interfering with her possession during her life-time, since though it was clear..........interfering with her possession or entering upon the property. the facts are not in dispute. the suit property originally belonged to the plaintiff's father who devised it by will dated the 5th of december 1892 to the plaintiff for life and after her death to her son trimbak ganesh, and any other sons that might be subsequently born to her. the testator died twenty-six or twenty-seven years ago, and trimbak who was then alive took a vested remainder in the suit property. when he died his mother, the plaintiff, became his heiress. than the plaintiff determined to adopt the defendant who was a major. before the adoption the defendant executed an agreement in favour of the plaintiff to the effect that in the event of his being adopted he would not claim any right to the suit property......
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued for a declaration that the plaint property was of her full and absolute ownership, and that the defendant had no sort of interest in it, and for an injunction restraining him from interfering with her possession or entering upon the property. The facts are not in dispute. The suit property originally belonged to the plaintiff's father who devised it by will dated the 5th of December 1892 to the plaintiff for life and after her death to her son Trimbak Ganesh, and any other sons that might be subsequently born to her. The testator died twenty-six or twenty-seven years ago, and Trimbak who was then alive took a vested remainder in the suit property. When he died his mother, the plaintiff, became his heiress. Than the plaintiff determined to adopt the defendant who was a major. Before the adoption the defendant executed an agreement in favour of the plaintiff to the effect that in the event of his being adopted he would not claim any right to the suit property. After the adoption a further agreement was entered into ratifying the previous agreement. It is quite clear that as soon as the defendant was adopted he would be the nearest reversioner on the death of the plaintiff, but he would have no right to surrender the reversion in favour of the life-tenant, and so block out the interests of any one who might at the date of the widow's death be the nearest reveraoner. The case does not seem to have been viewed from this aspect by the learned judge in the Court below, who considered that although a conditional adoption was allowed by law and the rights of the adopted son could be curtailed by an agreement, it could not in any way enlarge the estate of the adoptive mother. Defendant's' admission could not give the plaintiff an estate which she did not possess. Undoubtedly, if the adopted son had taken a vested remainder in this property, he could have conveyed that remainder to his adoptive mother so as to enlarge her life estate into an absolute estate. But it makes all the difference if the defendant took only a contingent interest in the property after his adoption.

2. The Court was right in refusing the declaration asked for by the plaintiff that she was the absolute owner of the suit property, because undoubtedly she was only a life-tenant, and there was no one in position to make her an absolute owner. During the life of a Hindu widow the reversion remains contingent, and there is no one who possesses a vested interest in the remainder which can be disposed of by any means known to law. It will be sufficient for the purposes of this case if we amend the decree of the lower Court by giving the plaintiff an injunction restraining the defendant from taking possession of the property or interfering with the plaintiff's possession or enjoyment thereof during her life-time.

3. Each party to bear her and his own costs.


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