BALA ANNA GURAV Vs. AKUBAI BABU GURAV

JUDGEMENT

(1.) The question in this appeal is whether the adoption of the plaintiff-appellant Bala by Tanubai, widow of Anna Gurav, entitles him to a share in the joint family property of Anna and his predeceased brother Babu.

(2.) These two brothers formed a joint Hindu family. Babu died on October 22, 1918, leaving a widow Akubai enceinte. Anna died on November 4, 1918, leaving a widow Tanubai. On February 27, 1919, Anna's widow Tanubai adopted her brother, the plaintiff-appellant, without the consent of Babu's widow Akubai, who gave birth, on April 1, 1919 to Krishna, Defendant- Respondent No. 1. The appellant sued Krishna for the joint property, alleging that the family was divided in status before Anna had given Tanubai authority to adopt. Krishna died pendente lite and is represented by his natural mother Akubai. Defendants-respondents Nos. 2 and 3 were tenants. The lower Courts held, and, in our opinion, rightly, that the family was not divided in status and that Tanu had no authority from her husband, Anna, to adopt the plaintiff, and dismissed the suit. The plaintiff appeals.

(3.) It is contended in appeal for the appellant that even on these findings Tanu's adoption of the plaintiff is valid in law. It is argued that Tanu was the widow of the last full owner Anna and had power to adopt Payapa V/s. Appanna [1898] 23 Bom. 327 notwithstanding the pregnancy of Akubai, and Krishna should be taken to be non-existent till he was actually born later. And we are asked to extend to a Hindu widow, even the widow of a coparcener, the power of a Hindu father to adopt, notwithstanding the pregnancy of his wife, affirmed in Hanmant Ramchandra V/s. Bhimacharya [1888] 12 Bom. 105.