Decided on October 03,1946


Referred Judgements :-



Macklin, J. - (1.)IN the action which has given rise to this second appeal a junior widow sued a person adopted by her senior widow for the property which went to the adopted son by adoption. It was agreed at the trial that the issue relating to the validity of the adoption should be determined first, on the assumption for the sake of argument that the adoption had in fact taken place. Both the Courts below have held that the adoption was an invalid adoption and, there being no other effective defence to the suit, the plaintiff was bound to succeed. They therefore passed a decree for possession of the property in favour of the plaintiff and the defendant has appealed.
(2.)THE only question with which we are concerned in this appeal is whether the adoption, assuming that it took place, is valid. It is to be noticed that the adoption was by a step-mother of the last male holder. THE late husband of the two widows, Dhondi, died leaving a son to his junior widow in addition to the two widows. THE son died himself childless and unmarried, and on his death the property went to his mother, who has accordingly been divested by the adoption set up by the defendant. In holding that the adoption is invalid being an adoption by a step-mother of the last male holder, the Courts below have relied on three decisions of this Court: Anandibai v. Kashibai (1904) I. L. R. 28 Bom. 461, s. c. 6 Bom. L. R. 464, Hirabharthi v. Bai Javer (1928) 30 Bom. L. R. 1555, and Bassangowda v. Rudrappa (1928) I. L. R. 52 Bom. 393, s. c. 30 Bom. L. R. 591. On behalf of the unsuccessful defendant it has been argued that all three cases have been impliedly overruled by reason of the decision of the Privy Council in Amarendra Mansingh v. Sanatan Singh (1933) L. R. 60 I. A. 242, s. c. 35 Bom. L. R. 859, followed as it was by a later decision of the Privy Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil (1943) L. R. 70 I. A. 232, s. c. 46 Bom. L. R. 1.
It will be convenient to deal with the decision of the Privy Council before dealing with the decisions of this Court, In Amarendra's case it was laid down with a good deal of emphasis that great caution should be observed in shutting the door upon any authorized adoption by the widow of a sonless man; and since the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line, the true basis of an adoption must be spiritual considerations rather than considerations of property. There had been a long line of decisions of this Court in which the vesting and devesting of property had been regarded as in one way or another a test of the validity of certain classes of adoption; but the Privy Council held that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it another co-parcener of the joint family or an outsider claiming by reverter or even by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. Amarendra's case was a case of an adoption to her husband by the mother of a son who himself died sonless and unmarried, and the adoption was upheld by the Privy Council in spite of the fact that the property had vested absolutely before the adoption in a person other than the adopting widow. It is true that in one part of their judgment their Lordships agreed that there must be some limit to the exercise of the power of adoption, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit the continuance of the power to adopt or inequitable in the face of other rights to allow it to take effect; see p. 249. But it is evident that their Lordships did not consider it inequitable to disturb the rights of the person holding the property ostensibly as an absolute owner in Amarendra's case. It is argued with some force that a fortiori the case with which we are now dealing, being a case of disturbing the rights of one who is only a limited owner, cannot be regarded as a case where it would be inequitable to allow the ordinary consequences of an adoption to take effect. Not long after the decision in Amarendra's case a full bench of this Court in dealing with a case of adoption agreed to the validity of the adoption but refused to give effect to it on the ground that to do so would be divesting someone other than the adopting widow of property which had legitimately vested in him. But in Anant Bhikappa Patil v. Shankar Ramchandra Patil the decision of the full bench was overruled, their Lordships holding that it was necessary to allow the ordinary consequences of adoption to take place.

In view of these decisions the question is whether the decisions relied upon by the plaintiff can any longer be considered to be good law. Anandibai v. Kashibai decided that the consent of the junior widow is necessary to an adoption by the senior widow if the junior widow has inherited the property of her son as last male holder; and since it would be too much to expect her to give consent to an adoption by the senior widow in such circumstances, the case is really a case of the ordinary power of the senior widow to adopt without the consent of the junior widow being limited in the special circumstances of that case. Hirabharthi v. Bai Javer is an authority for the view that a power to adopt given to a junior widow by her husband comes to an end on the death of the son of the senior widow, since the property of the senior widow's son then vests in the senior widow. The third case, Bassangawda v. Rudrappa, was a case of a step-mother adopting after she had inherited the property from her step-son, who had died sonless and unmarried and motherless. It was nevertheless decided that the step-mother could not adopt.

(3.)WE have examined these cases, and we are satisfied that the ultimate basis of the decision in every one of them was the vesting or devesting of property, which in the light of the decision of the Privy Council in Amarendra's case cannot be considered to be a good basis and in so far as there is no other basis for the decisions, the cases must be considered as impliedly overruled. WE are unable to find any other basis in Hindu law or in logic for these decisions other than the vesting and devesting of property; and we therefore think that they are no longer authorities which ought to be followed, still less authorities which we are bound to follow.
On behalf of the plaintiff it has been argued that Amarendra's case does not in terms overrule any of these cases and that we ought not to treat them as no longer good law if that can possibly be avoided. The Privy Council, in a passage occurring at p. 256, say that the interposition of a grandson or a son's widow brings the mother's power of adoption to an end, but the mere birth of a son does not do so, and this is not based upon a question of vesting or devesting of property. Their Lordships thought 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 dies 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 lifetime will revive.


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