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Zadavalli Tripuramba (Dead) and anr. Vs. Zadavalli Venkataratnam (Dead) and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in72Ind.Cas.278
AppellantZadavalli Tripuramba (Dead) and anr.
RespondentZadavalli Venkataratnam (Dead) and anr.
Cases ReferredVenkappa v. Jivaji Krishna
Excerpt:
.....by widow--precedents--obiter dicta of privy council, value of. - - 2. that a hindu widow can adopt a son in order to carry on the line and provide for the due performance of the obsequies of her husband either with the authority of the husband or with consent of the husband's sapindas, is well-established in this presidency. it is also well-established that this power of adoption can be exercised on the death of a son or adopted son, as often as occasion arises, but it is also established that there is some limit to the exercise of this power and that it can become exhausted. ' the ordinary rule referred to there is, as i understand it, the rule subsequently so clearly stated in the judgment of chandavarkar, j. 43, and therefore held that this adoption is bad. the purpose..........and a son, subbanna sastri. the son died 26 years ago unmarried at the age of 25. in 1913, the widow adopted the second defendant with the consent of the sapindas as the son of her late husband. the question to be decided is whether this adoption is good or bad.2. that a hindu widow can adopt a son in order to carry on the line and provide for the due performance of the obsequies of her husband either with the authority of the husband or with consent of the husband's sapindas, is well-established in this presidency. it is also well-established that this power of adoption can be exercised on the death of a son or adopted son, as often as occasion arises, but it is also established that there is some limit to the exercise of this power and that it can become exhausted. it is argued in.....
Judgment:

Walter Schwabe, C.J.

1. The facts of this case are, one Venkatasomayajalu died leaving a widow and a son, Subbanna Sastri. The son died 26 years ago unmarried at the age of 25. In 1913, the widow adopted the second defendant with the consent of the sapindas as the son of her late husband. The question to be decided is whether this adoption is good or bad.

2. That a Hindu widow can adopt a son in order to carry on the line and provide for the due performance of the obsequies of her husband either with the authority of the husband or with consent of the husband's sapindas, is well-established in this Presidency. It is also well-established that this power of adoption can be exercised on the death of a son or adopted son, as often as occasion arises, but it is also established that there is some limit to the exercise of this power and that it can become exhausted. It is argued in this case that the limit is reached as soon as a son, natural or adopted, either marries or attains an age, which is put alternatively as that of attaining majority, that is 18, or that of attaining full legal capacity to himself adopt a son, which was held in Tarachum Chatterji v. Surashchunder Mukerji 17 C. 122 : 16 I.A. 166 : to be sixteen. No direct authority for this proposition can be found in any of the Indian Reports, but it is based on a dictum of the Privy Council in Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 481 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 177 : which I will deal with more fully hereafter. The limit to the authority to adopt is stated in the judgment of the Privy Council in Bhoobun Moyee Debia v. Ram Kishore Acharji Chowdhry 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 Which judgment was explained and the principle re-affirmed in Padmakumari Debi v. Court of Wards 8 I.A. 229 : 8 C. 302 : 6 Ind. Jur. 148 : and Thayammal v. Venkatarama :5 Sar. P.C.J. 10 : 3 Ind. Dec. 895 . The principle to be deduced from these three cases is stated in the judgment of Chandavarkar, J., in the Full Bench case of Ramkrishna v. Shamrao 26 B. 526 : thus: 'where a Hindu dies, leaving a widow and a son and that son himself dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived 'This principle so laid down has the approval of the Privy Council in Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 28 C.L.J. 403 : 20 Bom. L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 . No subsequent adoption will be allowed, which will divest a right vested by inheritance in some person other than the son or the mother herself as representing the son, so if a son dies leaving either a son or a widow the mother can no longer adopt as the estate is vested in son's son or if there be no son, in his widow, she having a right to adopt a son to her husband. There is direct authority that the limit is not reached when the son dies though of age without leaving a son or widow in Venkappa v. Jivaji Krishna 25 B. 306 : 2 Bom. L.R. 1101, where a son had attained the age of 30 before his death and had married but left no widow, and Sangapa v. Vysapa (1896) P.J. 528 when lie attained the age of 30 and died unmarried. This very point was also mentioned in Bhoobun Moyee Debia v. Ram Kishore Acharji Chowdhry 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth P.C.J. 574 : 2 Sar. P.C.J. 111 : in the judgment of Lord Kingsdown, where he stated: 'If Bhowanee Kishore, (that is the son) had died unmarried, his mother would have been his heir and the question of adoption would have stood on quite different grounds. By exercising the power of adoption she would have divested no estate but her own, and this would have brought the case within the ordinary rule.' The ordinary rule referred to there is, as I understand it, the rule subsequently so clearly stated in the judgment of Chandavarkar, J. This statement was obiter but that is a clear indication of the view of their Lordships of the Privy Council.

3. Turning now to Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 24 M.L.T. 231 : 28 C.L.J. 403 : 45 I.A. 156 (P.C.), in that case a widow adopted a son who died leaving a widow; and it was held following the cases quoted above that the right of adoption by the first widow had been exhausted. But after approving the principle laid down in the judgment in Ramkrishna v. Shamrao 26 B. 526 : 4 Bom. L.R. 315, their Lordships stated that they were of opinion that 'the principle must be taken as applying, so as to have brought the authority to adopt conferred 'on the first widow to an end when the son, whom she had originally adopted, died after attaining full legal capacity to continue. the line, either by the birth of a natural born son or by the adoption to him of a son by his own widow.' It is to be observed that it does not say, 'after himself attaining full age or the right to adopt a son.' Their Lordships, however, went on to say that 'they do not desire to be understood to say that, even in the absence of authority in the sort's widow to adopt, the succession of the son and his dying after attaining full legal capacity to continue the Hue would not in themselves have been sufficient to bring the limiting principle into operation and so to have determined the authority of the first widow, who was not the widow of the last owner and could not adopt a son to him.' I understand this to mean that their Lordships wish it to be understood : that they do not give any decision on the point, which is the point in this case, and perhaps indicate that the inclination of their minds was against the contention that such adoption was permissible. But the point was not before the Council and did not arise in that case, and it would be most dangerous to treat a dictum of that kind as an authority.

4. When a point directly arises for decision, it is the duty of the Court to consider the point for itself, giving, of course, due weight to any words which fell, although obiter from their Lordships. I can find no authority in any decided case and the respondents have been unable to call our attention to any authority from the usual sources for ascertaining Hindu Law, in support of the proposition. If there is any such limit, it is not, in my judgment, open to us to find it on the material before us. It is to be observed that in Verabhai v. Bai Hiraba 5 Bom. L.R. 534 : 7 C.W.N. 716 (P.C.) Lord Lindley in delivering the judgment of the Privy Council remarked, referring to this point, that no authority had been produced before the Privy Council in support of it. I wish to refer to two cases which give some appearance of support to the suggestion of, the existence of this limit, viz., Jaganntdha Gajapati v. Kunja Bihari Deo 9 L.W. 385. The head-note of which runs as follows: 'The power of a widow to adopt is not limited in point of time by the fact that a line of her husband's heirs have in succession, come into possession of the estate. The limit to such power is when the husband's adopted son attains full age and so full capacity to continue the line by naturally born sons or by adoption.' That head-note is in my judgment incorrect, for the case does not decide anything of the kind. It is true that Wallis, C.J., in his judgment states that the Privy Council in Bhoobun Moyee Debia v. Ram Kishore Acharji Chowdhry 10 M.I.A. 279 . 3 W.R.P.C. 15 : 1 Suth P.C.J. 574 19 E.R. 978 so decided; but that observation does not appear to be borne out by a study of the judgment of the Privy Council in the case. It was unnecessary for the decision of the case in Jagannadha Gajapati v. Kunja Behari Deo (1919) M.W.N. 52 : 9 L.W. 385 and must be treated as obiter. In Venkataramier v. Gopalan 24 M.L.T. 440 : 9 L.W. 43 the decision in which case appears to be right, both the Judges explained what they understood to have been decided by the Privy Council in Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 24 M.L.T. 231 : 20 Bom. L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.). They took the dictum which I have discussed above and read it as though it were a judgment. I do not agree with the observations of either Judge on the true meaning to be attached to the judgment of the Privy Council in that case.

5. The District Judge in this case took the interpretation put upon the words in Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 481 : 41 M. 855 : 35 M.L.J. 138 by this Court in Venkaiaramier v. Gopahn M.W.N. 79 : 24 M.L.T. 440 : 9 L.W. 43, and therefore held that this adoption is bad. For the reasons stated above I think his conclusion is wrong.

6. The appeal will be adjourned for a fortnight for further consideration and for enquiries to be made as to what took place in the Court below, so that we can decide whether to enter judgment or to send the case back to the District Judge. The respondent must pay the costs throughout.

Wallace, J.

7. The respondent relied, as the District Judge has relied, on the phraseology in certain passages in the Privy Council judgment in Madana Mohana Ananga Bheema Deo v. Pwushcthama Ananga Bheema Deo 46 Ind. Cas. 481 : 41 M. 855 : 35 M.L.J. 138 and on the interpretation of those passages by a Bench of this. Court in Venkataramier v. Gopalan M.W.N. 79 : 9 L.W. 43.

8. The first passage is that the mother's authority to adopt must have come to an end when the son she originally adopted1 died, after attaining full legal capacity to continue the line either by the birth of a natural born son, (as distinguished from an adopted son) or by the adoption to him of a son by his own widow. The events which put an end to the mother's power to adopt to her husband in. that view are either that her son or adopted son should have a legitimate son or should leave a widow, that is, the essential pre-requisite is not the attainment of his majority or even his succession to the estate, but that he has or has had a wife with' the result that he leaves either a son to her or that she survives him as his widow. The common result in either event is that the deceased son's estate is on his death vested not in his mother but in his son or widow. Therefore, their lordships, I consider, are not propounding any new principle but are taking their stand on the old principle enunciated by the Privy Council in Atchama v. Ramanadha Baboo 4 M.I.A. 1 : 7 W.R.P.C. 57 :18 E.R. 600 and Bhubun Moyee Debia v. Ram Kishore Acharji Chowdhry 1 Suth P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978, namely, that when the estate is vested in some heir succeeding to, but directly from the deceased son, his mother will not be allowed to adopt to her husband so as to divest that heir.

9. The second passage in their Lordships' judgment relied on does not seem to me to carry the case any further. It is to the effect 'that their Lordships do not desire to be understood as saying that even in the absence of any power in the son's widow to adopt, the succession to Brojo Kishore (that is the son) and his dying after attaining full legal capacity to continue the line would not in themselves have been sufficient to bring the limiting principle into operation, and so to have determined the authority of Adikonda's widow, who was not the widow of the last make owner, and could not adopt a son to him.' Here again the phrase 'succession to Brojo Kishore' does not to my mind mean anything more than that he has come into the estate. Had it meant attainment of his majority, that simpler phrase would have been used. I note further that that succession in itself is not sufficient to have determined the authority of Adikonda's widow, but that it must be coupled with the capacity to continue the line as previously explained, that is, coupled with a legal carriage. It is only from such a marriage that there will emerge an heir to continue the line in legitimate descent and, therefore, until such marriage, the full legal capacity to continue the line is not consummated. That marriage itself is not the whole test, but such a marriage as leaves an heir, a son or a widow, to the deceased has been laid down in Venkaappa v. Jivaji Krishna 25 B. 306 : 2 Bom.L.R. 1101.

10. That I think is the meaning of Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 481 : 41 M. 855 : 35 M.L.J. 138 in which their Lordships were dealing with a case, where the adoption pleaded before them would have divested the adopted son's widow of the estate, it not having been shown that the son's widow herself had no power to adopt to her husband, and the Board purported to follow and were even in full agreement with the decision in Ramkrishna v. Shamrao 26 B. 526 at p. 531 : 4 Bom. L.R. 315 based on Bhulun Moyee Debia v. Ram Kishore Acharji Chowdhry 10 M.I.A. 279 : 3 W.R.P.C. 15 : and Padmakumari Debi v. Court of Wards 8 I.A. 229 : Ind. Jur. 148 and Thayammal v. Venkatarama 11 Ind. Jur. 271 : 5 Sar. P.C.J. 10 : 3 Ind. Dec. (N.S.) 895 and held that the principle laid down in this case determined that case also. I find nothing in Madana Mohana Ananga Bh&cma; Deo v. Purushoihama Ananga Bheema Deo 46 Ind. Cas. 481 : 5 P.L.W. 179 24 M.L.T. 177 : 45 I.A. 156 (P.C). on which to find on principle that the mere attainment of majority by the son or the adopted son divested his mother of the power to adopt to her husband in the event of that son's death without heir. Under the Hindu Law a minor can many to get legitimate sons and his widow can adopt to him, so that even a minor may fulfil the tests laid down in Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 481 : 41 M. 855 : 8 L.W. 167 : 16 A.L.J. 725 . though he has not yet come into full disposing possession of his estate.

11. There is, therefore, nothing in that case to support the District Judge's interpretation of it, as meaning that the full legal capacity to continue the line is equivalent to attaining majority, in a case where the son has attained age but dies unmarried. In this matter there appears to be no virtue in law in the attainment of majority and hence, when that is the only bar pleaded, there seems no reason for distinguishing between a mother's power to adopt to her husband when the minor son or adopted son has died, from the power to adopt to him when the major son or adopted son has died leaving no heir to himself who will be ousted from the estate by such adoption. See again Venkappa v. Jivaji Krishna 25 B. 306 : 2 Bom. L.R. 1101.

12. Hence the mere attainment of majority introduces into the problem no new factor on which the respondent can rely for its solution. The purpose of adoption is to perpetuate the line, and if the only son dies without leaving any one to perpetuate the line, there seems no good reason for restricting the power of his mother to perpetuate it in the only way she can, by adopting a son to her own husband. No direct authority to the contrary has been produced by the respondent while there is much authority in its favour.

13. I therefore agree with the view of the learned Chief Justice.

This second appeal having been posted this day for further consideration the Court delivered the following


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