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 husband, where