UMABAI BHAGWANT RAJARAM Vs. NANI MAHADEV JAKHADI

JUDGEMENT

(1.) THE plaintiff, Nani Durgabai, is the daughter of one Rajaram Trimbak deceased. Defendant No.1, Umabai, is the widow of Bhagwant, Rajaram's only son. Defendant No.2, Murlidhar, called Murlidhar Bhagwant, is a boy adopted by Umabai as the son of Bhagwant after Bhagwant's death.

(2.) THE family consisted of Rajaram, his son Bhagwant, his daughter Nani, his wife Krishnabai, and his daughter-in-law Umabai. On March 6, 1915, Rajaram died, and the first question which we have to decide is whether his son Bhagwant predeceased him, as Nani says, or whether Bhagwant, died on March 25, 1915, as Umabai says. If Umabai is correct, then Bhagwant, who was joint with his father, was the last male member of the joint family and his estate came to Umabai, his widow, and Murlidhar as the adopted son. But if, as Nani says, Bhagwant predeceased his father, we will have to consider the question of law whether the adoption made by Umabai in 1927 was valid and whether by that adoption Nani was divested of the property.

(3.) THESE authorities have been reviewed by the Privy Council in the recent cases of Bhimabai v. Gurunathgouda Khandappagouda (1932) L. R. 60 I. A. 25 : S. C. 35 Bom. L. R. 200 and Amarendra Mansingh v. Sanatan Singh (1933) L. R. 60 I. A. 242 : S. C. 35 Bom. L. R. 859 In Bhimabai & case stress was laid on the religious duty of adoption, and their Lordships held that the view taken by a full bench of the Court in Ramji v. Ghamau (1879) I. L. R. 6 Bom. 498 was erroneous. In that case it had been held that a widow in a joint family was not entitled to adopt without the consent of her deceased husband's surviving coparceners. It is now clear that consent is implied in all cases. The importance of this case for our present purpose is the insistence on the duty of adoption. This is still more clearly expressed by Sir George Lowndes in Amarendra Mansingh v. Sanatan Singh. A Hindu governed by the Benares school of the Mitakshara law died leaving a son and a widow to whom he gave authority to adopt in the event of the son's death. The son died unmarried. By a family custom females were excluded from inheritance and on the son's death the estate vested in a collateral heir. The widow then adopted. The question was whether an adoption by a widow in whom the estate had not vested was invalid. His Lordship in an exhaustive judgment restated the ruling in Bhimabai's case that adoption is a duty, and stated that " great caution should be observed in shutting the door upon any authorized adoption". He added that there must be some limit to the exercise of the power, and the considered the argument that the power to adopt was extinguished on the vesting of the property in an heir other than the adopting widow. Amongst the cases discussed was that of Pratapsing Shivsing v. Amarsingji Raisingji (1918) L. R. 46 I. A. 97 : S. C. 21 Bom. L. R. 496 and I cannot do better than quote his lordship's observations (p. 254):in Pratapsing Shivsing v. Agarsingji Raisingji the litigation related to a village which had formed part of an impartible estate in the Bombay Presidency, and had been the subject of a maintenance grant to a junior branch of the family. By the custom of the family such grants reverted to the estate upon failure of male descendants of the grantee. The last holder, Kaliansing, died in October, 1903, childless, but leaving a widow who some five months later adopted the appellant The respondent, the owner of the principal estate, sued for recovery of the maintenance lands on the allegation that they vested in him on Kaliansing's death, and that consequently the adoption was invalid. . . Notwithstanding that the property had vested in the respondent, the adoption was held to be good, and the suit was dismissed. . . It necessarily follows, their Lordships think, from this decision, that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another co-parcener of the joint family, or an outsider claiming by reverter, or, their Lordships would add, by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. If in Pratapsing's case the actual reverter of the property to the head of the family did not bring the power to an end, it would be impossible to hold in the present case that the passing by inheritance to a distant relation could have that effect any more than the passing by survivorship would in a joint family. This settles the question finally, and it is clear that the vesting of the property in Nani the plaintiff in our case did not extinguish the right of Umabai to :adopt, a right which was co-extensive with her duty to provide a- son for her husband Bhagwant.