ASHABAI KATE Vs. VITHAL BHIKA NADE

JUDGEMENT

(1.) This appeal by the plaintiff-appellant is directed against the decision of the Bombay High Court dismissing her suit for possession of the properties detailed in the plaint.

(2.) The disputed properties belonged to a joint Hindu family governed by Mitakshara law of which one Bhiku and his son Balu were coparceners. Bhiku died on June 6, 1942 leaving behind his widow Parvati, the defendant No. 2 in the present suit, and Balu who died soon after his father's demise on July 24, 1942. In November 1942 Balu's widow Lilabai gave birth to a posthumous daughter who is the present appellant. Sometime later Lilabai remarried and thereupon Parvati adopted Vithal, the first defendant in the present suit, in the year 1949. After attaining majority, appellant Ashabai filed the present suit for a decree for possession of the properties with mesne profits and a decree for money for Rs. 3,000 / - as expenses of her marriage. She challenged the power of her grandmother to adopt the first defendant on the ground that her right to adopt was lost on the death of Balu leaving behind his widow Lilabai.

(3.) The trial Court accepted the defence case, upheld the adoption of the defendant No. 1 as valid, and dismissed the suit. The plaintiff, Ashabai, challenged the decision by an appeal which was heard by the Extra Assistant Judge, Poona, who allowed the same and passed a decree for possession of the suit properties along with mesne profits. Now, it was the turn of the defendants to question the decree of the first appellate Court before the High Court under S. 100 of the Code of Civil Procedure. After considering a number of Privy Council and Supreme Court decisions, the High Court ruled that a Hindu widow's power to adopt is revived the moment there is nobody to continue the line, and since Lilabai incapacitated herself in doing so by her remarriage, the right of her mother-in-law to adopt a son to her husband revived. The adoption of the first defendant was thus found legal and valid. Accordingly the decree in favour of the plaintiff was set aside and her suit dismissed. The appellant then moved this Court under Art. 136 of the Constitution and special leave has been granted.