SHIVBASAPPA LAGMAPPA MANOLI Vs. NILAVA SATAPA MANOLI

JUDGEMENT

(1.) [After dealing with questions of fact and holding that Basvanta was the last to die and that the factum of adoption was proved, the judgment proceeded:-] In the lower Court no question was raised as to the effect of the finding that Basvanta and Lagmappa were members of a joint family of whom Lagmappa died first and Basvanta afterwards. It was accepted that the result of that finding would be to negative the plaintiff's claim; and in the memorandum of appeal before us no such point as has been raised in the course of the argument has been taken. After the filing of the appeal, however, the decision in Yadao V/s. Namdeo (1921) L.R. 48 I.A. 513; 24 Bom. L.R. 609 has rendered it possible for the appellant to raise the contention that the adoption would have the effect of divesting the estate vested in defendants Nos. 2 and 8 on the death of Basvanta. It is urged that, though, according to the decisions of this Court, the plaintiff would have no case, in view of the observations of their Lordships of the Privy Council in Yadao V/s. Namdeo relating to the Fall Bench ruling of this Court in Ramji V/s. Ghamau (1879) I.L.R. 6 Bom. 498, those decisions are no longer good law, and that as a logical consequence of the observations relating to the decision in Ramji V/s. Ghamau, it follows that the adoption would be good even after the death of the last surviving co-parcener of the joint family so as to have the effect of divesting the estate vested in the widow or widows of the last co-parcener.

(2.) On behalf of the respondents it is urged that whatever the effect of the observations in Yadao V/s. Namdeo may be as regards the power of the widow during the continuance of the joint family the current of decisions of this Court with regard to the inability of a widow to adopt so as to divest the estate vested in a third party is not touched in any way, and that that current of decisions cannot be treated as having been overruled by the observations which are directly made with reference to the decision in Ramji V/s. Ghamau. The current of decisions referred to begins from the year 1871 when Rupchand Hindumal V/s. Rakhmabai (1871) 8 B.H.C.R.A.C.j. 114 was decided; then we have the decision in Chandra v. Gajarabai (1890) I.L.R. 14 Bom. 463, which is strongly relied upon by the respondents. They also rely upon the observations in Vasudeo V/s. Ramchandra (1896) I.L.R. 22 Bom. 551 and Payapa V/s. Appanna (1898) I.L.R. 23 Bom. 327.

(3.) The question that arises in virtue of the observations in Yadao V/s. Namdeo is that if the widow of a deceased coparcener in a joint family could adopt validly, even in the absence of any express authority from her husband, without the consent of the surviving coparceners, whether it is necessarily implied that that adoption, even when effected after the death of the last surviving coparcener of the joint family, and after the estate has vested in the widow or widows of that last deceased coparcener, would be valid or rather have the effect of divesting the estate so vested in the widows. It is not necessary for the purpose of this case to examine the point decided in Ramji V/s. Ghamau along with the earlier and later decisions on that point in the light of the observations in Yadao V/s. Namdeo (1921) L.R. 48 I.A. 513; 24 Bom. L.R. 609. It is clear, however, that for a long time in this Court the rule is accepted as stated in Tejrani V/s. Sarupchand Chhaganbhai (1919) I.L.R. 44 Bom. 483; 22 Bom. L.R. 209. But where the cirCumstances are, us they are here, it seems to me quite plain that we must follow what is well-understood as the ordinary law in this Presidency and apply it to the facts. The widow of a deceased coparcener of a joint Hindu family cannot, in the absence of any specific authority, make an adoption subsequent to the death of a coparcener who survived her husband; and more particularly when, as here, that later surviving coparcener left widows.