VISHNU BAPU SHINDE Vs. LAKSHMI SAKHARAM SHINDE

JUDGEMENT

(1.) The following pedigree will be useful to appreciate the facts of this case:

(2.) Tukaram died some time prior to 1901. Bapu died in March 1801, Bhavani in December 1901. Sakharam was the last to die. He died in 1904. Bapu had an illegitimate son by name Tukaram. In 1915 Dhondai adopted the present defendant 1. The land in suit was purchased in 1900. The sale-deed is in the name of Bapu. It has been found that out of the land in the sale-deed, land measuring one acre was given to Tukaram, the illegitimate son of Bapu, and the finding is that the rest of the land in the sale-deed was given to Dhondai for her maintenance; The plaintiff brought this suit to obtain possession of the land in the sale-deed alleging that the land belonged to the joint family of Bhavani and his sons and was given to Dhondai for her maintenance and that on the death of the latter, she (the plaintiff) was entitled to the land as the widow of the last surviving male member of the family. Defendant 2 claims as a mortgagee from Dhondai and defendant 3 is a tenant of a portion of the suit land. The contention on behalf of defendant 1. was that the land belonged to Bapu who was separate from the other members of the family and that by reason of his adoption he was entitled to the land. The trial Court held that Bhavani and his son formed a joint Hindu family, that the plaintiff's husband got the land exclusively as the last survivor of the family, and that as a consequence plaintiff was entitled to recover possession of the land excluding one acre given to the illegitimate son of Bapu. That Court did not record a finding as to the adoption of defendant 1, as it was of opinion that he would not be entitled to the property even if the fact of adoption was proved. Defendants appealed. The appellate Court held that the adoption was proved, but was not valid. That Court confirmed the rest of the findings of facts arrived at by the trial Court and dismissed the appeal. Defendant 1 appealed to this Court.

(3.) Both the Courts had evidently the cases of Ramji V/s. Ghaman (1879) 6 Bom 498 (F.B) and Ishwar Dadu V/s. Gajabai 1926 Bom 435 in view. It was held in these cases that under Hindu law in the Bombay Presidency the widow of a deceased coparcener in a joint family has no inherent right to make a valid adoption without either the authority of her husband or the consent of the surviving coparcener of her husband. Prior to the decision in Ishwar Dadu V/s. Gajabai 1926 Bom 435 their Lordships of the Privy Council had in Yadao V/s. Namdeo 1922 P.C. 216 criticized the ruling in Ramji V/s. Ghaman (1879) 6 Bom 498 (F.B), but in Ishwar Dadu V/s. Gajabai 1926 Bom 435 the High Court of Bombay held that the decision in Ramji v. Ghaman (1879) 6 Bom 498 (F.B) was not overruled by the decision in Yadao v. Namdeo 1922 P.C. 216. However all doubt on the point has now been set at rest by the decision of the Privy Council in Bhimabai V/s. Gurunathgouda Khandappagouda 1933 P.C. 1. As to the material facts, the pedigree given in Bhimabai's case shows that D and his three sons N.K. and J constituted a joint Hindu family. D died leaving him surving his three sons. Thereafter K separated from the family but the other two brothers remained joint. K died and his widow adopted a son in 1915. J died in 1913 leaving a widow Bhimabai. On J's death N took the family estate by survivorship. N then adopted a boy and died. On his death the property passed by survivorship to his adopted son who also died and his son D took the property. In the meantime Bhimabai adopted a boy in 1919. Thereafter D died and his mother handed over the property to K's son, as it was watan property. The latter brought a suit for a declaration that he was lawfully in possession of the property. Bhimabai was defendant 1 and her adopted son defendant 2, plainitiff, succeeded up to the High Court. Bhimabai and the adopted son appealed to the King in Council and succeeded and the suit was dismissed. It was held that under the Hindu law, as prevalent in the Maratha country of the Bombay Presidency, the widow of a coparcener in a joint Hindu family has power to make a valid adoption without either the express authority of her husband or the consent of the surviving coparcener. Their Lordships followed Yadao v. Namdeo 1922 P.C. 216 and observed that the Full Bench decisions of this Court referred to above were no longer good law.