VITHOBA Vs. AMRITA

JUDGEMENT

(1.) 1. One Kondji died a separated member of his family leaving a widow Saijai and a son Maroti. His estate devolved upon his son. The lower Courts have found that Maroti died in 1912 leaving a widow Mt. Punjai alias Muktai who remarried and died shortly afterwards. On her death the estate devolved upon Maroti's mother Saijai, who purported to adopt the defendant Vithoba as a son. In the memorandum of appeal the appellants have contested the finding that Maroti left a widow surviving him, but that finding of fact has not been seriously challenged in the course of the argument and must be accepted in second appeal. The question therefore is whether, where a Hindu dies leaving a widow and son and that son himself dies leaving his own widow the former widow on the death of the second widow has power to make a valid adoption. The parties are residents of Basim taluk in Berar and it seems to have been assumed that they are governed by the Bombay school of law. Until the decision of their Lordships of the Privy Council in Bhimabai v. Gurunathgouda Khandappagouda AIR 1933 PC 1, it would not I think, have been disputed that a widow in such circumstances could not adopt, and the question is whether that view must be deemed to have been overruled by this decision. In Ramkrishna v. Shamrao (1902) 26 Bom 526, Chandavarkar, J., who delivered the judgment of the Full Bench, relying on the decision of the Privy Council in Bhoobun Moyee Debia v. Ram Kishore (1863) 10 MIA 279 (PC), held that the principle to be deduced from the reasoning in that case was: Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived."

(2.) IN Amarendra Man Singh v. Sanatan Singh AIR 1933 PC 155, their Lordships of the Privy Council cited this dictum with approval and remarked that the interposition of a grandson or the son's widow brings the mother's power of adoption to an end. It is true that in the latter case the parties were governed by the Mitakshara law, but from the unqualified approval given by their Lordships to the dictum of Chandavarkar, J., in Ramkrishna v. Shamrao (1902) 26 Bom 526, I am of opinion that that is still good law. The point did not arise for decision in Bhimabai's case and I therefore consider that the lower Courts were correct in holding that the adoption was invalid and that the defence must therefore fail. The appeal is dismissed without notice to the opposite party.