DHONDI GANAPATI PATIL Vs. MARUTI GOVIND PATIL

JUDGEMENT

(1.) A short but interesting point is raised in this second appeal as to the law which is applicable to the parties with regard to adoption after the Jath State was merged in the Province of Bombay. The District Judge of Jath held that a widow of a deceased coparcener was not entitled to adopt without the consent of the other coparceners and in doing so he followed a very early decision of this Court reported in Ramji v. Ghamau, 6 Bom. 498 (F. B.) and he also followed a decision of the Supreme Court of Jath. Now, the Notification issued by the Government of Bombay on 2nd March 1948, under the Extra-Provincial Jurisdiction Act, 1947, makes provision as to the jurisdiction of the High Court and what law it has to administer when cases which were pending before Jath Courts stand transferred to this Court. By Section 4 of that Notification any law relating to any of the matters enumerated in Lists II and III in Schedule 7 to the Government of India Act, 1935, or any notification, order, scheme, rule, form or by-law issued, made or prescribed under any law of the class referred to in Clause (a) as were in force immediately before the appointed day in any Deccan State shall continue in force until altered, repealed or amended by an order under the Extra Provincial Jurisdiction Act, 1947. The appointed day in case of Jath State was 8th March 1948. Now, adoption is one of the subjects that appear in List III of Schedule 7 to the Government of India Act, 1935, and therefore it is clear that unless altered, repealed or amended by a proper order under the Extra-Provincial Jurisdiction Act, 1947, all laws relating to adoption which were in force in the Jath State before 8th March 1948, would continue in force, Section 5 of the Notification confers jurisdiction upon this Court to deal with matters which were pending in the Jath Courts and Sub-clause (2) of that section provides that the High Court of judicature at Bombay shall dispose of the same in accordance with the law continued in force or applied under Para, 4 as if the cases, suits, appeals and other proceedings were instituted before it. Therefore, reading Sections 4 and 5 we must dispose of this appeal in accordance with the law of adoption which was in force in the Jath State prior to 8th March 1948, and the narrow point that we have to consider is what was the law with regard to adoption in force in the Jath State before the appointed day.

(2.) THE parties before the District Judge, Jath, were governed by the law of Mitakshara and the law of adoption according to Mitakshara applied to the parties. THEre is no statute law which has amended or altered or repealed any of the provisions of the law of Mitakshara relating to adoption, and therefore what we have to determine is what is the law of adoption according to Mitakshara and which would govern the rights of the parties. Is it permissible under the law of Mitakshara for a widow of a deceased coparcener to adopt a son to her husband without the consent of her husband's other coparceners ? Now, the Privy Council in a series of decisions has clarified and elucidated the law of adoption, It would be erroneous to say that the Privy Council has in any way altered or amended the Hindu law of adoption. All that the Privy Council has done is that it has interpreted the Hindu law and has laid down what the law really was and what it should always have been and according to the Privy Council decision Ramji v. Ghamau, 6 Bom. 498 (F. B.) is no longer good law and a widow governed by the law of Mitakshara can adopt to her husband without the consent of her coparceners. If that be the law, then that was the law which was prevalent in the Jath State before the appointed day and the decision of this appeal must be given according to that law.