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1932 Supreme(SC) 54
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD ATKIN, LORD RUSSELL OF KILLOWEN, SIR JOHN WALLIS, AND SIR DINSKAH MULLA.
BHIMABAI - Appellant
Versus
GURUNATHGOUDA KHANDAPPAGOUDA - Respondents
On Appeal from the High Court of Bombay.
Decided On : November 4, 1932.
Solicitors for appellants :T. L. Wilson & Co. Solicitors for respondent: H. S. L. Polak & Co.
Under the relevant school of Hindu law, a widow may validly adopt a son for her deceased husband without his express authority or the consent of surviving coparceners, regardless of whether the husband died in a joint or separated family.
Headnote:(A) Hindu Law - Mitakshara Law and Vyavahara Mayukaha - Power of a widow to adopt - Validity of adoption by a widow of a deceased coparcener in an undivided family without the express authority of the husband or the consent of surviving coparceners - In the relevant jurisdiction, a Hindu widow may adopt a son to her deceased husband without the permission of her husband and without the consent of his kindred, provided the act is done in the proper and bona fide performance of a religious duty - No distinction is drawn between a separated and an un-separated family regarding this power.
(B) Precedents - Conflict between decisions regarding the necessity of coparceners' consent - Where a higher court has disapproved a previous ruling that limited a widow's power to adopt to cases of separated families, the ruling allowing adoption regardless of the family's joint or separate status prevails.
Facts of the case:
A widow of a deceased coparcener, who died while part of a joint family, adopted a son without the express authority of her deceased husband and without the consent of the surviving coparcener, who was a minor at the time. The lower courts had held the adoption invalid, relying on a precedent that required the consent of surviving coparceners in an undivided family.
Findings of Court:
The adoption was held to be valid. The court found that under the applicable school of law, the power of a widow to adopt is a religious duty and does not depend on whether the husband died as a separated or un-separated Hindu, nor on whether the property vested in her as an heir.
Issues: Whether, under the law prevalent in the relevant region, a Hindu widow whose husband was undivided at the time of his death, and who lacked express permission from her husband, could validly adopt a son without the consent of the surviving coparceners.
Ratio Decidendi: The court ruled that the widow's power to adopt is inherent and based on religious duty under the governing texts of the specific school of law. The requirement for the consent of coparceners, applicable in other regions, does not apply here. The distinction between a divided and undivided family for the purpose of a widow's power to adopt was rejected, and the adoption was deemed valid as the coparcenary still existed at the time of the act.
Result: Appeal allowed.
Legal Category Hierarchy
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family law
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hindu law
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adoption
- widow's power to adopt
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succession
- coparcenary and survivorship
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adoption
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hindu law
Judgement
Appeal (No. 51 of 1930) from a decree of the High Court at Bombay (February 28, 1928) affirming a decree of the Subordinate Judge of Dharwar (April 8, 1925).
The suit, in which the respondent was plaintiff and the two appellants were defendants Nos. 1 and 2, related to the succession under HINDU LAW to certain watan lands situate in the Dharwar District where the authority of the Mayukha is predominant.
The main point in dispute was whether the adoption of Narayan (defendant No. 2) by Bhimabai (defendant No. 1) in September, 1919, was valid. Bhimabai was the widow of Jivangouda, who died in 1913, and it was found concurrently (contrary to the defendants contention) that Jivangouda at his death was joint with his brother Nilkanthagouda, who died in 1915. Nilkanthagouda left an adopted son Dyamangouda, who died in August, 1919, leaving a son Dattatraya, born in 1918, who died unmarried in 1920. The plaintiff respondent was the adopted son of Khandappagouda, a brother [@ page LRIA
Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda
26] of Nilkanthagouda and Jivangouda, who separated from them in 1896 and died in 1912. It was concurrently found that Bhimabai had not the express authority of her husband Jivangouda to make an adoption. The consent of his kinsmen was not sought.
The High Court, affirming the trial judge, held that the adoption was invalid. The learned judges (Patkar and Baker JJ.) followed the Full Bench decision of the Court in Ishwar Dadu v. Gajabai (( 1926) I. L. R. 50 B. 468.), that in the Bombay Presidency the widow of a Hindu who dies un-separated cannot validly adopt without her husbands authority or the consent of her father-in-law or the surviving members of her husbands joint family, and that the decision of the Full Bench to that effect in Ramji v. Ghamau (( 1879) I. L. R. 6 B. 498.) had not been overruled by the Privy Council in Yadao v. Namdeo . (( 1921) L. R. 48 I. A. 513.)
1932. June 28, 30 ; July 1, 4, 5, 7. De Gruyther K.C. and Parikh (with them Khambatta and A. G. Desai) for the appellant. The judgment appealed from is based ultimately upon the Full Bench decision in 1879 in Ramji v. Ghamau (( 1879) I. L. R. 6 B. 498.), but that case was wrongly decided and was disapproved by the Board in Yadao v. Namdeo . (( 1921) L. R. 48 I. A. 513.) In Rakhmabai v. Radhabai (( 1868) 5 Bom. H. C. (A. C. J.) 181.) a Full Bench, upon a consideration of the texts and the then recent judgment of the Board in Collector of Madura v. Sathupathy (the Ramnad case) (( 1868) 12 Moo. I. A. 397.), held in 1868 that in the Mahratta country of the Bombay Presidency a widow could adopt without the permission of her husband and without the consent of his kindred. Neither the texts nor the decisions draw any distinction between a separated and an un-separated family. The Mayukha lays stress upon the religious duty of a widow to adopt a son to her husband; the view that in the absence of the husbands consent that of his kindred is necessary is referred to but is rejected. The Dattaka Mimansa, which takes that view, is not of authority in the Bombay Presidency.
[Reference was made to the Mayukha, ch. iv., sec. 5, pi. 16, 17, 18 (Mandlik, p. 57 ; Stokes, pp. 63, 64), and to Mandlik, pp. 462-465; also, as to the texts having authority in Bombay, to Mayne, paras. 28, 30, and West and Buhler, 3rd ed., i., 9.] The decision in Ramji v. Ghamau (I. L.
R. 6 B. 498.) was not based upon the texts but upon the judgments of the Board in the Ramnad case (12 Moo. I. A. 397.) and Sri Raghunadha v. Sri Brozo Kishoro . (( 1876) L. R. 3 I. A. 154.) Both those cases, however, arose in the Madras, not the Bombay, Presidency. In the former the judgment expressly states (12 Moo. I. A. 397, 438.) that their Lordships had excluded from their consideration the " peculiarly Maratha treatises (the Mayukha and Koustabha)." The principle there laid down as applicable in Southern India was that the authority of the husb
