KAUSALYABAI JAGDEORAO Vs. DEVKABAI JAIWANTRAO DESHMUKH

JUDGEMENT

(1.) HIS Lordship after setting out the facts of the case, and dealing with the evidence not material for this report, proceeded. Mr. Deo then contended that even if the defendant was born on February 3, 1923, she was hardly a child of one year and two months on April 2, 1924 the date of the adoption of her father; and she must be, therefore, considered to have passed, along with her mother, into the adoptive family of the deceased Abaji.

(2.) HE also submitted that, irrespective of whether she passed into the adoptive family or not, in accordance with the old Hindu Law, Section 4 of the Hindu Succession Act, 1956, overruled such rule, if any, with regard to the status of a daughter; and Section 8 of that Act entitled the defendant as a daughter of the deceased Abaji to succeed Abaji as an heir in class I along with Devkabai and Jankabai No. 2, both the widows having one share; and she having the other.

(3.) THE points raised by Mr. Deo were not raised on behalf of the defendant in the lower Court, as already stated above. But the point that the defendant was an heir of Abaji under the Hindu Succession Act, was taken in the memorandum of appeal filed in this Court; and Mr. Paranjpe, the learned Counsel found it impossible to repel the same, having regard to the Full Bench decision of this High Court in Martand Jiwajee v. Narayan Krishna [1939] Bom. 586 : 41 Bom. L.R. 845, decided by Sir John Beaumont C.J., and Wadia and Lokur JJ. where it was said (p. 609): It may be that in ancient and primitive society the son was regarded as hardly better than his father's slave, and the prominent idea involved in an adoption was the transfer of dominion or patria, potestas to the person adopting. But when the times changed and the status of the son was raised, the father's power to give in adoption came to be founded on a different conception. The text of Vasishtha quoted in Dattaka Mimansa (Section V, pl. 31), which is said to afford the foundation of the Hindu law of adoption, and which I have already referred to, recognizes the power of the father and mother to 'give or sell or abandon' their son as he is 'produced from their virile seed and uterine blood.' This paternity of the father cannot be shaken off even though he may leave the family, as, according to the Hindu Shastras 'By no means can you make your father cease to be,'