SHAMRAO BABAJI LOKARE Vs. BHIMRAO KONDI LOKARE

JUDGEMENT

(1.) THIS appeal raises a very interesting question concerning the Hindu law of adoption. The facts giving rise to the appeal are that one Babaji died leaving a widow Anubai and a son Krishna. Krishna married Vitha. Krishna died on October 27, 1918, leaving a son Changdeo. Changdeo died on October 28, 1918, and Vitha died in 1928. Anubai adopted to her husband defendant No.1 on May 14, 1934, and the suit was filed by the next reversioners challenging the adoption. Both the lower Courts took the view, that the adoption was bad.

(2.) IT is urged by Mr. Desai on behalf of the adopted son that since the recent Privy Council decision a revolutionary change has taken place with regard to the view taken by the Courts in India as to the nature and effect of adoption. Originally decisions on adoption emphasised the property aspect of adoption and those decisions were also coloured by the English view of the law of property. The idea was shocking to an English lawyer that a property which had become vested for a long time should become divested on an adoption taking place. But the Privy Council has now emphasised that primarily the adoption must be looked at from the point of view of its religious and spiritual efficacy and that considerations with regard to the vesting and divesting of property are merely incidental. The Privy Council has also emphasised the Brahminical doctrine that it is the duty of a Hindu to see that his male line is continued and adoption is resorted to in order to give effect to that Brahminical doctrine. Now, in this case it will be realised that it is the grandmother who is adopting, as when her son Krishna died on October 27, 1918, he left both a son and a widow. Mr. Desai's contention is that on the death of Vitha there was no one who could continue the male line of Babaji and, therefore, the power of Anubai to adopt which was merely suspended so long as Vitha was alive revived and she became capable of adopting after 1928, and, therefore, what she did on May 14, 1934, was with a view to continue the male line of Babaji which, but for the adoption, would have become extinct.

(3.) OUR attention has been drawn to two cases which, according to Mr. Desai, go counter to the principle laid down in Ramkrishna v. Shamrao, The first is a decision which I gave sitting singly reported in Pandurang Bhau v-Changimabai (1944) 46 Bom. L. R. 913. The facts of that case were very peculiar. There a Hindu father had two sons and he died leaving those two sons and his widow. The elder son died leaving a widow and two days later the younger son died unmarried and the mother made an adoption, and the question was whether the adoption was good, and the view I took was that as the younger son had died without leaving a widow or a son, the mother's power of adoption had not come to an end and she could, therefore, validly adopt the plaintiff. It will be noticed that at the date of the death of the younger son there was neither a widow, either his or the elder brother's, nor a grandson who could continue the male line, and it should also be noticed that so long as the younger son was alive there would be no question of the power of the widow of the elder son as far as the continuation of the line of the father was concerned because the younger son was there to continue the line. The next case on which reliance was placed is a decision of the Nagpur High Court in Bapuji v. Gangaram [1941] Nag. 178. In that case a Hindu died leaving a widow and a son and the son died leaving a widow only. It was held that on the remarriage; of the widow of the son the power of the mother to adopt revived. Now, with very great respect to the Nagpur High Court, what the learned Judges attempted to do was logically to extend the principle in Amarendra's case. It is not always safe to extend logically the principle to be deduced from a particular decision. A decision is good for the facts of that particular case, and to apply it to a different set of facts with regard to which different considerations would apply is not always a sound principle. It is perfectly true that every case does not merely decide with regard to the particular facts, but there also can be enunciated and deduced a principle arising out of that case. But to extend that principle merely because logic requires it, is an attempt which is always a rather hazardous one, and according to the Nagpur High Court the true rule that they deduced from the Privy Council decisions and the other decisions of Indian High Courts which they considered, is that the grandmother's power is suspended by the interposition of various persons, son, son's widow, son's son, and revives with the removal of the obstacle. Now, with great respect again, this rule is quite contrary to what is expressly stated by the Privy Council in Amarendra's case to which we have drawn attention. OUR High Court also considered Amarendra's case in Ramchandra v. Murlidhar (1936) 39 Bom. L. R. 599, and on facts similar to the facts before the Nagpur High Court came to a contrary conclusion.