ANJIRABAI GULABRAO POWAR Vs. PANDURANG BALKRISHNA POWAR

JUDGEMENT

(1.) The genealogy of the parties in this appeal is as follows:- Gopal and Kesu, the sons of Babaji, were divided. The plaintiff in this case is the grandson of Gopal. Kesu died leaving a widow Lakshmi, the first defendant, and a son Maruti. Maruti had two wives, but both died before him, so that on Maruti's death his mother Lakshmi succeeded to him as his heiress. Subsequently she adopted the second defendant. The plaintiff seeks to obtain a declaration that the second defendant is not a validly adopted son of the first defendant. The trial Judge said:- As Maruti left no widow or issue, the defendant No. 1 bad authority according to Hindu law to adopt a son to her husband. I therefore find the third issue in the affirmative.

(2.) The appellate Judge considered himself bound by the authority in Madana Mohana V/s. Purushothama (1918) L.R. 45 I.A. 156, s.c. 20 Bom. L.R. 1041. and consequently, held Lakshmi's power of adoption had come to an end on the ground that Maruti had attained full legal capacity to continue the line, either by the birth of a natural born son or by the adoption to him of a won by his own widow. On a careful consideration of the judgment in that case, it seems to me that the question now in issue was not decided, for, in that case admittedly Brojo Kishore left a widow, and consequently, his estate would go to her and not to his mother.

(3.) The point in issue was decided in Venkappa Bapu V/s. Jivaji Krishna. (1900) I.L.R. 26 Bom. 306; 2 Bom. L.R. 1101. The head-note runs:- A mother succeeding as heir to her deceased son who has left neither widow nor issue, is competent to adopt, notwithstanding the fact that her deceased son bad attained ceremonial competency by marriage, investiture or otherwise before his death.