1994 Supreme(Bom) 246

IN THE HIGH COURT OF BOMBAY
Bhattacharjee A.M., C.J.
Amruta Babaji Mozar..... Appellant.
Versus
Kondabai Babaji Mozar another..... Respondents.
Second Appeal No. 104 of 1984, decided on 15-6-1994.
Advocates appeared :
M.A. Rane, for appellant.
V.A. Thorat, for respondent No. 1-D.

Headnote:Section 100 (as stood prior to its amendment in 1976)-Scope of second appeal.

       Held-Both the trial Court and the first appellate Court have come to a concurrent finding that the factum of adoption has not been satisfactorily proved and the Deed of Adoption purports to record a sham transaction. Even assuming amendo that the finding is wrong or even grossly erroneous, a second appellate Court must fold its hands over even under the provisions of Section 100 of the Code of Civil Procedure, as it stood prior to its amendment in 1976. unless the finding is such as could not be arrived at by any Court on the materials on record. The judgments of the Courts below clearly demonstrate anxious advertence to all the materials on record and the concurrent finding arrived at by them as to the factum of adoption not having been proved is not such a one which cannot be arrived at in any view of the matter. This finding, therefore, is unassilable in Second Appeal even under Section 100 of the Code of Civil Procedure, as it stood before ]976, and what was then a restricted area for the second appellate Court bas now become almost a prohibited area or no-entry area under Section 100 as amended in 1976.

       Articles 141 and 372-Supreme Court and Privy Council-Decision of Whether binding on all High Courts and subordinate courts?

       Held-The law declared by the Supreme Court is no doubt of paramount precedence and is binding on all the Courts notwithstanding any decision to the contrary of the High Court to which a Court may be subordinate. This would have been the position even without Article 141 of the Constitution because of the precedent oriented system of our judicial administration received by us from the British and followed by us with. utmost devotional rightly. Article 141 was necessary not so much for making the decisions of the Supreme Court binding on all other Courts, but to enable the Supreme Court to deport from any pre-constitution decision of the Privy council which would have otherwise continued. under Article 372 of the Constitution as the Jaws in force, to be binding even on the Supreme Court and Article 141 clothes the Supreme Court to alter such law as envisaged in Article 372 itself. There should be no doubt that when faced with contrary decisions of the Supreme Court and the High Court, the High Court and all Courts subordinate are bound to follow the decision of the Supreme Court III preference to that of the High Court. But when the High Court, far from proceeding per incuriam, considered a decision of the Supreme Court and has put its own glass is binding on all the Courts in the State concerned until on weighed by a later decision of the Supreme Court or a larger Bench of the High Court.

       It would be an act of gravest impropriety for the sub-ordidate Court to proceed on its own reading of the decision of the Supreme Court and to hold, or even to suggest, that the High Court decision to be contrary thereto. That the law declared by the High Court, right or wrong, is binding on all Courts and Tribunals in the State, even without any provision analogous to Article 141, is too obvious from its appellate, revisional, supervisory and other jurisdictions over all Courts and other authorities and the citation should at all be necessary for such an obvious proposition.

       Mother-Right of -Sons marriages on his own son, mother not entitled to adopt even if that wife or that son dies.

       Where a Hindu diesleaving a widow and a son and that son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived.

       If the son himself died sonless and unmarried, the duty would still be upon the mother and the power in her, which was necessarily suspended duting the sons life, would review. If the power of the widow, which remained suspended during the life time of the son, could review on the son dying sonless and unmarried, loxically, the power must also revive when the son and his widow and the grandsons and his widow all died out. The power once extinguished, cannot afterwards be revived and that though the death of her son in an unmarried state would empower the mother to adopt, but once the son marries or has his son, the mother can no longer adopt even if that wife or that son dies.

       A deceased sons widow or son extinguishes the mothers power to adopt not to be revived even on the death of sons widow or sons son. A fortiori therefore, the remarriage of such a widow daughter-in-law also would make no difference as such remarriage, at its most, is no more than death of that daughter-in-law vis-a-vis her former husbands family. Even remarriage of the daughter-in-law would not empower the mother to-law to adopt even though the deceased son had no son and the daughter-in-law has, by her remarriage, incapacitated herself to continue their of the her former husband by adoption of otherwise.

       Interposition of a sons widow would bring their mothers power the adopt to an end would apply only when there was one son only, but would not apply when there was another son also and if such other son in his turn died unmarried without a son. The mothers power to adopt would revive notwithstanding the existence of the widow of the former son.

       The predeceased sons widow will debar a mother from exercising her power to adopt only where the predeceased son was the only son but it there was another son, the existence of the predeceased sonss widow would be irrelevant and the mother would be entitled to adopt notwitstanding the existence of such sons widow, if the other son subsequently died unmarried and without a son.