The power of a widow to adopt comes to an end by the interposition of a grandson or the son's widow competent to adopt.

( 1 ) THE question raised in this second appeal is whether the power of a widow to adopt comes to an end by the interposition, of a son's widow, the son pre-deceasing his father.

( 2 ) THE facts are not in dispute. The question can properly be appreciated by reference to the following genealogy : Balappa, son of Basawanneppa, had two wives Basalingawwa and shettawwa. Basalingawwa died long back leaving a son Gangappa behind her. After the death of Basalingawwa, Balappa married Shettawwa, defendant no. 2 and Gangappa married Neelawwa, Defendant No. 3. Gangappa died in the year 1939 without issues, as a member of the joint family leaving surviving him the widow Neelawwa. Balappa died in september, 1947, leaving his second wife Shettawwa. The family continued to remain joint.

( 3 ) TEN or fifteen days alter the death of Balappa, that is, on 15-9-1947, shettawwa took Kallappa defendant No. 1 in adoption to Balappa. On 6-12-1949, defendant No. 3 Neelavva adopted the plaintiff. On 6-2-1950, the Plaintiff brought the suit challenging the facturn and validity of adoption of Kalappa and also for recovery of possession of the family properties, with the alternate relief for partition and separate possession of his share in case the adoption of Kallappa is held to be valid, and, if for any reason separate possession cannot be granted, he prayed for joint possession.

( 4 ) THE trial court held that both the above said adoptions were valid, and the same view has been taken by the appellate Judge. The suit for alternate relief for partition and possession was decreed. During the pendency of the appeal before the lower appellate court, the plaintiff died and his widow Chinnawwa was brought on record and the present appeal has been preferred by Chinnawwa along with her mother-in-law neelawwa. During the pendency of this appeal, Shettawwa died and her adopted son Kallappa was already on record.

( 5 ) MR. Shirgurkar, learned Counsel for the appellant relying on the decision of the Supreme Court in Gurunath v. Kamala Bai, AIR 1955 SC 206 urged that shettawwa on the death of Balappa had no power to adopt Kallappa as balappa died interposing his son's widow Neelawwa. The contesting respondent is unrepresented. I therefore requested Sri M. S. Gopal to assist me in the case. His very useful assistance deserves to be appreciated.

( 6 ) THE leading case on the question is that of Gurunath (1 ). Reviewing all the previous decisions, Mahajan C. J. , in summing up the law has stated at para 14 as follows:"the result of these series of decisions is, that now for about three quarters of a century the rule that 'the power of a widow to adopt comes to an end by the interposition of a grandson or the son's widow competent to adopt' has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consistent with these principles. "the learned Judge continued:"in this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widow's power to adopt excepting those that limit the power of her husband to adopt, i. e. , that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widow powers of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widow's power to make an adoption comes to an end by the interposition of a grandson or the son's widow competent to continue the line by

Click Here to Read the rest of this document