SHAMRAO BABAJI LOKARE Vs. BHIMRAO KONDI LOKARE

JUDGEMENT

(1.) This appeal raises a very interesting question concerning the Hindu law of adoption. The facts giving rise to the appeal are that one Babaji died leaving a widow Anubai and a son Krishna. Krishna married Vitha. Krishna died on October 27, 1918, leaving a son Changdeo. Changdeo died on October 28, 1918, and Vitha died in 1928. Anubai adopted to her husband defendant No. 1 on May 14, 1934, and the suit was filed by the next reversioners challenging the adoption. Both the lower Courts took the view, that the adoption was bad.

(2.) It is urged by Mr. Desai on behalf of the adopted son that since the recent Privy Council decision a revolutionary change has taken place with regard to the view taken by the Courts in India as to the nature and effect of adoption. Originally decisions on adoption emphasised the property aspect of adoption and those decisions were also coloured by the English view of the law of property. The idea was shocking to an English lawyer that a property which had become vested for a long time should become divested on an adoption taking place. But the Privy Council has now emphasised that primarily the adoption must be looked at from the point of view of its religious and spiritual efficacy and that considerations with regard to the vesting and divesting of property are merely incidental. The Privy Council has also emphasised the Brahminical doctrine that it is the duty of a Hindu to see that his male line is continued and adoption is resorted to in order to give effect to that Brahminical doctrine. Now, in this case it will be realised that it is the grandmother who is adopting, as when her son Krishna died on October 27, 1918, he left both a son and a widow. Mr. Desai's contention is that on the death of Vitha there was no one who could continue the male line of Babaji and, therefore, the power of Anubai to adopt which was merely suspended so long as Vitha was alive revived and she became capable of adopting after 1928, and, therefore, what she did on May 14, 1934, was with a view to continue the male line of Babaji which, but for the adoption, would have become extinct.

(3.) Now, this view, if accepted, would be wholly contrary to a full bench decision of this Court in Ramkrishna V/s. Shamrao (1902) I.L.R. 26 Bom, 526, s.c. 4 Bom. L.R. 315, f.b. In that case Mr. Justice Fulton, Mr. Justice Crowe and Mr. Justice Chandavarkar held that where a Hindu dies leaving a widow and a son, and that son himself 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. Mr. Justice Chandavarkar delivering the judgment of the bench mainly relied for the decision on the judgment of the Privy Council in Mussumat Bhoobun Moyee Debia V/s. Ram-kishore Achraj Chowdhary (1865) 10 M.I.A. 279, and Mr. Justice Chandavarkar points out that in the decision of the Privy Council Lord Kingsdown gives three illustrations to point out when the power of a widow to adopt is extinguished. The first case is where a Hindu dies leaving a widow and a son and where through that son the line is continued down to a grandson. The second illustration is where a Hindu dies leaving a widow and a son and where the line has been continued to a great grandson. And the third illustration was that of the actual facts of Bhoobun Moyee's case where a Hindu died leaving a widow and a son and that son died married, leaving a widow as heir. It was pressed upon this bench that the principle that they were laying down was not in accordance with either the letter or the spirit of the Hindu law as expounded in the books or as understood by the Hindus themselves. Mr. Justice Chandavarkar rejected that contention saying that it was not open to the learned Judges to go into that question as they must accept the law as laid down in Bhoobun Moyee's case. It is also necessary to point out that Mr. Justice Chandavarkar takes the view that there is and there must be some limit to the power of the widow to adopt, because Mr. Chaubal at the bar argued that a widow could adopt without any limit as to the period within which adoption may be made and her power was never at an end it was only suspended so long as the estate was vested in others, but directly it came to her from those others it was revived.