SHANTARAM ABASAHEB POWAR Vs. KERU KRISHNA KOLI

JUDGEMENT

(1.) These are Letters Patent appeals against the decision of Mr. Justice Chagla summarily dismissing two second appeals Nos. 108 and 109 of 1944. Those appeals arose respectively out of civil suits Nos. 58 and 59 of 1938 in the Court of the Second Class Subordinate Judge, Vita. The question that arises in these appeals is whether the principle of Hindu law enunciated in Rama Nana V/s. Dhondi Murari (1923) I.L.R. 47 Bom. 678 that a valid surrender made by a Hindu widow of her husband's estate to the next reversioner cannot be defeated by the subsequent adoption of a son to her husband is affected by the decision of the Privy Council in Anant Bhikappa Patil V/s. Shankar Ramchandra Patil (1943) 46 Bom. L.R. 1 p.c so as to give the adopted son the right of challenging the surrender made by the widow.

(2.) The properties in these two suits belonged to one Aba Bajirao. He died leaving his widowed mother Laxmibai, his widow Sonubai and his daughter Tanubai. On his death his widow Sonubai succeeded to him, and on January 8, 1914, she surrendered all the properties to Tanubai. Thereafter Tanubai sold some of the properties on July 9, 1928, to the defendant in suit No. 58 of 1938 and she sold some other properties on April 25, 1929, to the defendant in suit No. 59 of 1938. - The plaintiff was thereafter adopted by Sonubai on January 31, 1936. The two suits were filed in 1938 by the plaintiff to recover possession of the lands which had been sold by Tanubai in 1928 and 1929. The defendants in those two suits contested the claim mainly on the ground that the plaintiff was not entitled to challenge the alienations made in their favour by Tanubai, inasmuch as the whole estate had been surrendered by Sonubai in favour of Tanubai, who was the next reversioner. The trial Court as well as the first appellate Court upheld this contention of the defendants, and the plaintiff's suits as well as his two appeals were dismissed. The second appeals were also dismissed summarily, as I have already stated, by Mr. Justice Chagla.

(3.) In Rama Nana V/s. Dhondi Murari a Hindu widow had surrendered her husband's estate to her daughter who was the next reversioner and who agreed to maintain the widow as long as she lived. The daughter having died first, the widow adopted the plaintiff. In a suit by the plaintiff to recover possession of the property from the daughter's husband, it was held that the plaintiff was not entitled to question the surrender, and that the surrender was valid. Macleod C. J. observed that the surrender of the life-estate to the next reversioner gave title to him which was not dependent on the continuance of the life-estate but resulted from its extinction and could not be questioned by the subsequently adopted son. In the same case Crump J. made the following observations (p. 691): An adopted son can challenge any alienation made by the widow without necessity, but it does not follow that necessity is the only validating circumstance. A widow can alienate for necessity, therefore such alienation is valid, but any act of a widow which is within her powers under Hindu law would apparently stand on just as good a footing. No doubt the adoption dates back to the death of the father but the adopted son would appear to be bound by acts done by the person in possession of the estate where those acts are within that person's authority. The effect of the surrender by the widow was that the then reversioner took an absolute estate and as the surrender was an act which is by Hindu law within the competence of the widow it is not easy to see any ground on which the adopted son can challenge it.