MARUTI DHONDI SHINDE Vs. GUNA DHONDI SHINDE

JUDGEMENT

(1.) In the action which has given rise to this second appeal a junior widow sued a person adopted by her senior widow for the property which went to the adopted son by adoption. It was agreed at the trial that the issue relating to the validity of the adoption should be determined first, on the assumption for the sake of argument that the adoption had in fact taken place. Both the Courts below have held that the adoption was an invalid adoption and, there being no other effective defence to the suit, the plaintiff was bound to succeed. They therefore passed a decree for possession of the property in favour of the plaintiff and the defendant has appealed.

(2.) The only question with which we are concerned in this appeal is whether the adoption, assuming that it took place, is valid. It is to be noticed that the adoption was by a step-mother of the last male holder. The late husband of the two widows, Dhondi, died leaving a son to his junior widow in addition to the two widows. The son died himself childless and unmarried, and on his death the property went to his mother, who has accordingly been divested by the adoption set up by the defendant. In holding that the adoption is invalid being an adoption by a step-mother of the last male holder, the Courts below have relied on three decisions of this Court: Anandibai V/s. Kashibai (1904) I.L.R. 28 Bom. 461 Hirabharthi V/s. Bai Javer , and Bassangowda V/s. Rudrappa (1928) I.L.R. 52 Bom. 393 On behalf of the unsuccessful defendant it has been argued that all three cases have been impliedly overruled by reason of the decision of the Privy Council in Amarendra Mansingh V/s. Sanatan Singh (1933) L.R. 60 I.A. 242 followed as it was by a later decision of the Privy Council in Anant Bhikappa Patil V/s. Shankar Ramchandra Patil (1943) L.R. 70 I.A. 232

(3.) It will be convenient to deal with the decision of the Privy Council before dealing with the decisions of this Court, In Amarendra's case it was laid down with a good deal of emphasis that great caution should be observed in shutting the door upon any authorized adoption by the widow of a sonless man; and since the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line, the true basis of an adoption must be spiritual considerations rather than considerations of property. There had been a long line of decisions of this Court in which the vesting and devesting of property had been regarded as in one way or another a test of the validity of certain classes of adoption; but the Privy Council held that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it another co-parcener of the joint family or an outsider claiming by reverter or even by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. Amarendra's case was a case of an adoption to her husband by the mother of a son who himself died sonless and unmarried, and the adoption was upheld by the Privy Council in spite of the fact that the property had vested absolutely before the adoption in a person other than the adopting widow. It is true that in one part of their judgment their Lordships agreed that there must be some limit to the exercise of the power of adoption, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit the continuance of the power to adopt or inequitable in the face of other rights to allow it to take effect; see p. 249. But it is evident that their Lordships did not consider it inequitable to disturb the rights of the person holding the property ostensibly as an absolute owner in Amarendra's case. It is argued with some force that a fortiori the case with which we are now dealing, being a case of disturbing the rights of one who is only a limited owner, cannot be regarded as a case where it would be inequitable to allow the ordinary consequences of an adoption to take effect. Not long after the decision in Amarendra's case a full bench of this Court in dealing with a case of adoption agreed to the validity of the adoption but refused to give effect to it on the ground that to do so would be divesting someone other than the adopting widow of property which had legitimately vested in him. But in Anant Bhikappa Patil V/s. Shankar Ramchandra Patil the decision of the full bench was overruled, their Lordships holding that it was necessary to allow the ordinary consequences of adoption to take place.