1. Widow's power of adoption — Validity of adoption made after the death of son and grandson who had previously left heirs competent to continue the family line. (Para 1 , 2 , 3 , 4 )
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1954 Supreme(SC) 176
SUPREME COURT OF INDIA
(Constitutional Bench)
Mehr Chand Mahajan, CJI., B. K. Mukherjea, S. R. Das, Vivian Bose, N. H. Bhagwati, B. Jagannadhadas, T. L. Venkatarama Ayyar, JJ.
Gurunath – Appellant
Versus
Kamlabai and others – Respondent
Civil Appeal No. 105 of 1953
Decided On : 10-12-1954
Advocates appeared
Messrs. K. R. Bengeri and Sardar Bahadur, Advocates, for Appellant; Messrs. S. B. Jathar and I. N. Shroff, Advocates, for Respondents (Nos. 3, 4 and 5)
Messrs. K. R. Bengeri and Sardar Bahadur, Advocates, for Appellant; Messrs. S. B. Jathar and I. N. Shroff, Advocates, for Respondents (Nos. 3, 4 and 5)
A widow's power to adopt is permanently extinguished upon the interposition of a grandson or a son's widow competent to continue the line. This power does not revive even if the interposing heir subsequently dies without leaving a widow or a son.
Headnote:(A) Hindu Law - Power of adoption by a widow - Extinguishment of power - The interposition of a grandson, or the son's widow, competent to continue the line by adoption brings the mother's power of adoption to an end (Paras 11, 13).
(B) Hindu Law - Power of adoption - The power to adopt does not depend upon any question of vesting or divesting of property (Paras 11, 13).
(C) Hindu Law - Power of adoption - A mother's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence (Para 13).
(D) Hindu Law - Revivability of power - Once the power of adoption is extinguished by the interposition of a grandson or a son's widow competent to continue the line, it cannot be revived even if such interposing heir subsequently dies without leaving a widow or a son (Paras 11, 15).
Facts of the case:
A widow of a deceased man adopted a son after her son and grandson had both died. The son had previously died leaving behind a widow and a son (the grandson). The grandson subsequently died without leaving a widow or a son. The adoption was challenged on the ground that the widow's power to adopt was extinguished when the son died leaving a widow and a son to continue the family line.
Findings of Court:
The court found that the power of a widow to adopt is extinguished upon the interposition of a grandson or the son's widow who is competent to continue the line. This power does not revive even if the interposing heir dies without issue.
Issues: Whether a widow can exercise a power of adoption after a grandson has come on the scene but subsequently died without leaving a widow or a son, and whether the power of adoption revives upon the death of such interposing heirs.
Ratio Decidendi: The court held that the duty of providing for the continuance of the line for spiritual purposes, which was upon the father and conditionally laid upon the mother, is assumed by the son and passed on to the grandson or the son's widow. Once this duty is passed on, the mother's power is extinguished and cannot be revived. In the absence of clear Shastric texts, the court relied on established judicial principles of justice, equity, and good conscience to maintain this limitation on the widow's power.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether a widow's power of adoption is absolute during her lifetime or extinguished upon the interposition of a son's heir competent to continue the family line. (Para 4 , 6 )
3. Analysis of spiritual versus temporal aspects of adoption — Determination that the duty to continue the line, once passed to a subsequent generation, extinguishes the mother's power. (Para 6 , 7 , 8 , 9 , 10 , 11 , 13 , 14 , 15 )
4. A widow's power to adopt is extinguished by the interposition of a grandson or the son's widow competent to continue the line by adoption. (Para 11 , 13 , 14 )
5. Appeal dismissed — Adoption held invalid. (Para 16 )
6. When is a widow's power of adoption extinguished?
A widow's power to adopt is extinguished by the interposition of a grandson or the son's widow who is competent to continue the family line by adoption. (Para 11 , 13 , 14 )
7. Does the power of adoption revive if the subsequent heirs die without issue?
No. Once the duty of continuing the line is passed to a son and subsequently to a grandson or the son's widow, the mother's power is extinguished and cannot be revived. (Para 11 , 12 , 15 )
8. Is the widow's power of adoption linked to the vesting or divesting of property?
No. The validity of adoption is determined by spiritual considerations—the duty to provide for the continuance of the line—rather than temporal considerations regarding the devolution of property. (Para 11 , 13 )
9. Does the mere attainment of ceremonial competence by a son extinguish the mother's power to adopt?
No. The mere fact that a son has attained ceremonial competence does not extinguish the mother's authority to adopt. (Para 13 )
Judgement
MAHAJAN C.J.I.: This appeal raises a question of importance "whether a widow can exercise a power of adoption conferred on her or possessed by her at any, time during her life irrespective of any devolution of property or changes in the family or other circumstances and even after a grandson has come on the scene but has subsequently died without leaving a widow or a son."
2. The situation in which this question arises can properly be appreciated by reference to the following genealogy :
3. Gurunath the plaintiff, claims that he was adopted in 1943 by Gangabai, widow of Krishtarao. Krishtarao died in 1890, leaving him surviving two widows Radhabai & Gangabai and a son Dattatraya. Dattatraya died in 1913 leaving him surviving a widow Sundarabai and a son Jagannath. Sundarabai died shortly after Dattatraya while Jagannath died in the year 1914. After an interval of about 30 years since his death, it is alleged that Gangabai who survived both her son, and grandson adopted the plaintiff, and thus which we are called upon to solve.
4. raised the proolem On the 15th of March, 1944 the appellant instituted the suit out of which this appeal ariscs in forma pauperis" on the allegation,that he was the adopted son of Krishtarao and adopted to him by Gangabai, his junior widow, and as such was entitled to the possession of his adoptive father s properties comprised in the suit. He also claimed a declaration regarding the amount of compensation money payable to the plaintiff s family for the land acquired by Hubli Municipality. The defendants who are the sons and grandsons of the first cousin of Krishtarao disputed the plaintiff s adoption on the ground that Gangabai s power to adopt was extinguished when Dattaraya died in 1913, leaving behind him a widow Sundarabai and a son Jagannath who could continue the family line. Gangabai in her written statement supported the plaintiff s claim and asserted that the senior widow Radhabai had given consent to her adopting the plaintiff.
5. The trial judge upheld the defendants contention and dismissed the plaintiff s suit The factum of the plaintiffs adoption was however upheld, and it was further held that Radhabai did not give her consent to the adoption. On appeal this decision was affirmed by the High Court and it was held that Gangabai s power to adopt came to an end at the time when her son died leaving a son and a widow to continue the family line. No finding was given on the question whether Radhabai had given her consent to the adoption. That perhaps would have been the simplest way to end the dispute. Against the decision of the High Court this appeal in forma pauperis is now before us by special leave.
6. The only question canvassed in the appeal is in respect to the validity of the plaintiff s adoption. It was contended that Hindu Shastric Law itself sets no limit to the exercise of the widow s power of adoption once she has acquired that power or is possessed of it, and that being so, the power can be exercised by her during her life, time when necessity arises for the exercise of it for the purpose of continuing the line of her husband.
On the other hand, it was argued that though Hindu Shastric Law itself sets no limit to the exercise of the power, yet it has long been judicially recognised that the power is not an unlimited and absolute one, and that it comes to an end when another heir has come on the scene and he has passed on to another the duty of continuing the line. The question at what point of time the widow s duty of continuing the line of the husband comes to an end has been the subject-matter of a number of decisions of Indian High Courts and of the Privy Council and the point for our consideration is whether the limits laid down in these decisions have been arbitrarily fixed and are not based on sound principles and should be reviewed by us.
7. A brief reference to the different decision of the Privy Council is necessary for a proper appreciation of the state
