GANESH AMRIT DHOKRIKAR Vs. RANGNATH MANOHAR PANSARE

JUDGEMENT

(1.) The suit out of which this appeal arises was brought for a declaration that the alleged adoption of the 1st defendant by the 2nd defendant Yamunabai was invalid, and for an injunction restraining the 1st defendant from using the name of the alleged adoptive father Amrit. The genealogy is given at the beginning of the trial Court s judgment. Amrit, the husband of Yamunabai, died in 1903. In December 1911, his widow gave birth to a child, the offspring of adultery, as the lower Courts have hold. On the 15th June 1911, the adoption of the 1st defendant by Yamunabai was made. The plaintiff, who is a daughter of Yamunabai, objects to the adoption that inasmuch as the adopting widow was unchaste at the time of the adoption, the adoption is invalid. In the Court of trial the plaintiff s suit was dismissed, that order being made by reason of the trial Court s finding upon the first two issues, namely, that the plaintiff was not entitled to bring this suit, and that the adoption was invalid by reason of the widow s unchastity.

(2.) When the case was taken in appeal to the First Class Subordinate Judge, he agreed that the adoption was invalid by reason of the widow s unchastity, but he held that the plaintiff s suit was component, even though the plaintiff s father Amrit died in union with his family. The learned Judge, therefore, reversed the trial Court s decree, and gave the plaintiff a declaration that the 1st defendant s adoption was invalid. He granted also an injunction as prayed by the plaintiff.

(3.) From this decree the 1st defendant brings the present appeal. The first, and indeed the only substantial, point, which falls to be decided, is whether, on the assumption that Amrit died in union with his family, the plaintiff is competent to bring this suit. The plaintiff" on this assumption is an unmarried daughter in an undivided family. The learned Judge below in deciding in favour of the plaintiff s competence has based himself upon Sir Michael Westropp s decision in Kalova horn Bhujangrav v. Padapa valad Bhujangrav (1876) I.L.R. 1 Bom. 248, 251 where the Chief Justice observed that "independently of any claim to the property of Bhujangrav, we think that a suit to set aside the adoption of Balapa would lie for the plaintiff; if he be the son of Bhujangrav, inasmuch as, if the claim of the plaintiff to the property were, as against Kalova, barred by lapse of time, and the plaintiff bring, as he has done, his suit to set aside the adoption within time against Balapa, the plaintiff would be entitled to obtain an injunction against any intervention of Balapa in performing the Shradh or other ceremonies for the benefit of Bhujangrav, or assuming the status of adopted son of Bhujangrav. The Legislature seems distinctly to have recognized the right of a person to bring a suit to set aside an adoption as a substantive proceeding, independent of any claim to property, and to have fixed a special Court fee for such a suit (Act VII of 1870, Schedule II, Article 17, clause V); and in the new Limitation Act (IX of 1871), Article 129, the right to bring such a suit has since been again distinctly recognized.