MURGEPPA BASAPPA GAVANNAVAR Vs. KALAVA GOLAPPA TOTAD

JUDGEMENT

(1.) The only question in this appeal is whether a girl, a Hiudu widow, of the age of twelve who has not reached puberty could make a valid adoption. Both Courts have held that the adoption in those circumstances was invalid. As an authority paragraph 117 of Mr. Mayne s work, 8th Edn., has been cited. There Mr. Mayne says:" In Western India it is stated that a widow under the age of puberty cannot adopt." (The authority for that is Steele, p. 48; West and Buhler, p. 998). The author continues:-" I suppose the reason for the difference is that there the adoption is the act of the widow, for which no authority, or consent, is required." It seems to us that considering the importance of the act of adoption, it should be necessary that the adopting widow must have reached such an age of discretion that she must be able to realise the importance of her act, to make up her own mind as to the person she ought to adopt. There may be circumstances which will enable the Court to consider whether the widow has reached the age of discretion. That she has attained to puberty may be one circumstance but in this country not necessarily the only one. The actual age of the widow may be another test and probably the most important one. In this case I think both the tender age of the widow, and the fact that she has not reached the age of puberty, make it perfectly clear that she was not competent to know what she was doing. If we were to hold that such a person could adopt, we should open the door to all sorts of intrigue, so that the elder members of the family might be able to induce widows of tender age to make adoptions in the interests of those persons. If the adoption is invalid, as I think it is, in this case from the commencement, then the mere fact that after-wardfs when the adopting mother grew older she raised no objection to the adoption cannot in any way validate what was invalid ab initio. Therefore I agree with the opinion which has been expressed by the lower Courts, and think that the appeal should be dismissed with costs.

(2.) Since this judgment was delivered my attention has been drawn to the case of Basappa v. Sidramappa (1918) I.L.R. 43 Bom. 481 : 21 Bom. L.R. 217 and the cases therein cited which are in accord with the conclusion at which we arrived. Heaton, J.

(3.) I am of the same opinion. In our Courts we deal with adoptions, not as matters of religion, but as they affect property. If an adoption were a matter of religion and nothing more, it may be that a child would be capable of performing the adoption validly as soon as she was big enough and strong enough to take the adopted child in her lap. But if we come to look upon adoptions, as we do, not merely as matters of religion, but as matters affecting property, then we must consider, as my Lord the Chief Justice has said, whether a person making an adoption is capable of volition of his or her own. Certainly no ordinary child of twelve years of age is capable of volition of the kind here required unless he or she is a very exceptional person. There is nothing in this case to suggest that the young girl involved possessed such exceptional powers as that. I think, therefore, that the appeal must be dismissed.