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Kausalyabai Jagdeorao Vs. Devkabai Jaiwantrao Deshmukh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 432 of 1969
Judge
Reported in(1978)80BOMLR620; 1978MhLJ357
AppellantKausalyabai Jagdeorao
RespondentDevkabai Jaiwantrao Deshmukh
DispositionAppeal allowed
Excerpt:
.....8 and 15(b) read with section 10 and rule 1 of the rules made under the act--daughter born to hindu father prior to his adoption--whether daughter ceased to be a daughter the moment her father was given in adoption--whether blood relation of daughter continued till the hindu succession act came into force.;a had been adopted by j in april 1924 and thereafter a married d, the plaintiff, a died in october 1965 leaving him surviving his two widows, jankabai (who died in september 1966) and d, and a daughter named k, who had been born in 1922 by a pre-deceased wife named drupada. d sued, k for a declaration that she was exclusive owner in possession of the suit land. the trial court decreed the suit. on appeal by k.;that there is no text of any dharmashashtra, which lays down that a..........under section 15(1)(6); and thus mr. deo submitted that the defendant was entitled to 5/8th share in the suit lands.4. the points raised by mr. deo were not raised on behalf of the defendant in the lower court, as already stated above. but the point that the defendant was an heir of abaji under the hindu succession act, was taken in the memorandum of appeal filed in this court; and mr. paranjpe, the learned counsel found it impossible to repel the same, having regard to the full bench decision of this high court in martand jiwajee v. narayan krishna [1939] bom. 586 : 41 bom. l.r. 845, decided by sir john beaumont c.j., and wadia and lokur jj. where it was said (p. 609):it may be that in ancient and primitive society the son was regarded as hardly better than his father's slave,.....
Judgment:

Vaidya, J.

1. His Lordship after setting out the facts of the case, and dealing with the evidence not material for this report, proceeded. Mr. Deo then contended that even if the defendant was born on February 3, 1923, she was hardly a child of one year and two months on April 2, 1924 the date of the adoption of her father; and she must be, therefore, considered to have passed, along with her mother, into the adoptive family of the deceased Abaji.

2. He also submitted that, irrespective of whether she passed into the adoptive family or not, in accordance with the old Hindu Law, Section 4 of the Hindu Succession Act, 1956, overruled such rule, if any, with regard to the status of a daughter; and Section 8 of that Act entitled the defendant as a daughter of the deceased Abaji to succeed Abaji as an heir in class I along with Devkabai and Jankabai No. 2, both the widows having one share; and she having the other.

3. After the death of Jankabai No. 2, even assuming that as a step-daughter she was not a daughter, she was entitled to an equal share of in the share of Jankabai along with Devkabai under Section 15(1)(6); and thus Mr. Deo submitted that the defendant was entitled to 5/8th share in the suit lands.

4. The points raised by Mr. Deo were not raised on behalf of the defendant in the lower Court, as already stated above. But the point that the defendant was an heir of Abaji under the Hindu Succession Act, was taken in the memorandum of appeal filed in this Court; and Mr. Paranjpe, the learned Counsel found it impossible to repel the same, having regard to the Full Bench decision of this High Court in Martand Jiwajee v. Narayan Krishna [1939] Bom. 586 : 41 Bom. L.R. 845, decided by Sir John Beaumont C.J., and Wadia and Lokur JJ. where it was said (p. 609):

It may be that in ancient and primitive society the son was regarded as hardly better than his father's slave, and the prominent idea involved in an adoption was the transfer of dominion or patria, potestas to the person adopting. But when the times changed and the status of the son was raised, the father's power to give in adoption came to be founded on a different conception. The text of Vasishtha quoted in Dattaka Mimansa (Section V, pl. 31), which is said to afford the foundation of the Hindu law of adoption, and which I have already referred to, recognizes the power of the father and mother to 'give or sell or abandon' their son as he is 'produced from their virile seed and uterine blood.' This paternity of the father cannot be shaken off even though he may leave the family, as, according to the Hindu Shastras 'By no means can you make your father cease to be,'

5. Mr. Paranjpe, however, relied on Full Bench decision of the Nagpur High Court in Sharadchandra v. Shantabai [1944] Nag. 544 , where the said Full Bench appears to have taken a view different from the above Bombay Full Bench. Both these Full Bench decisions conferred the status of a son in the genetive family after adoption. However, we are not concerned here with the case of the status of the son. We are here concerned, with the status of the defendant, a daughter, who was hardly a year old, and who had no right, title or interest whatsoever in the genetive family at the time when her father was adopted.

6. Mr. Paranjpe fairly stated that he could not find any authority taking the view that such a daughter would cease to be the daughter of her father because of his adoption. As far as we are aware, there is no text of any Dharmashashtra, which lays down that a daughter ceases to be a daughter the moment her father is given in adoption.

7. The blood relation of the daughter and the father continued till the Hindu Succession Act came into force; and hence we are of the view that Mr. Deo's contention that the daughter, the defendant, was entitled to 5/8th share in the suit lands, having regard to the provisions contained in Sections 8 and 15(b) read with Section 10, Rule 1, must be upheld. The decree must, therefore, follow in favour of the plaintiff; only to the extent of 3/8th share in the suit lands.

8. In the result, the First Appeal is partly allowed; and for the decree passed by the learned Civil Judge, the following decree shall stand substituted:

It is hereby declared that the plaintiff is entitled to 3/8th share in the suit lands. The said share shall be separated and she should be put in possession of her share by the Collector or any Officer authorised by him to do so under Section 54 of the Civil Procedure Code and for this purpose, the decree should be sent to the Collector or to his subordinate, who is authorised to execute the decree for the purpose of partition of the plaintiff's 3/8th share.

The plaintiff is also entitled to mesne profits and an enquiry under Order XX, Rule 12(1) is directed to ascertain the mesne profits from the date of the suit till the recovery of the possession of her share. The defendant shall continue to pay Rs. 100 per month to the plaintiff till delivery of possession, as and by way of provision for maintenance.

The amounts, if any, paid by the defendant appellant in pursuance of the order made by this Court on Civil Appeal Nos. 2479 and 3967 of 1969, and by this decree, shall be adjusted against the dues payable by the defendant to the plaintiff on account of mesne profits while determining the amount of the mesne profits.

So far as the trial Court is concerned, the plaintiff should recover the costs of the suit from the defendant, who should bear her own costs.

So far as the above Appeal and the Civil Applications are concerned, the parties do bear their own costs, having regard to the relations between them and also having regard to the payments of maintenance made by the appellant during the pendency of the above appeal.


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