MARUTI DHONDI SHINDE Vs. GUNA DHONDI SHINDE

JUDGEMENT

(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.

(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.