1943 (7) TMI 5 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the adoption of the plaintiff by Gangabai.
2. Effect of the adoption on the vested property of Keshav.
3. Plaintiff's claim to the watan property and separate property of Keshav.

Detailed Analysis:

1. Validity of the adoption of the plaintiff by Gangabai:
The court examined whether Gangabai's power to adopt ended with the death of her son Keshav, the sole surviving coparcener. The judgment referenced Amarendra's case, which established that the power of a widow to adopt does not depend on the vesting or divesting of the estate. The court found that Gangabai's authority to adopt continued despite Keshav's death, aligning with the majority opinion in Balu Sakharam's case and rejecting Rangnekar J.'s dissenting view in Chandra's case. The court concluded that the adoption was valid.

2. Effect of the adoption on the vested property of Keshav:
The court considered whether the adoption could divest property that had vested in Keshav's heir. The judgment noted that an adoption made after the death of a sole surviving coparcener should not be denied effect, as it would have divested Keshav of part of his interest if made during his lifetime. The court rejected the notion that the death of the last surviving coparcener should prevent further fluctuation of interest in the family property. It emphasized that a Hindu family cannot be considered extinct while it is possible to add a male member through adoption. The court held that the adoption by Gangabai vested the family property in the adopted son, displacing any title based on inheritance from Keshav.

3. Plaintiff's claim to the watan property and separate property of Keshav:
The court addressed the plaintiff's claim to the watan property governed by the special rule of succession, which prioritizes male members over females except the widow of the last male owner. The court also considered the separate property of Keshav, which included two plots inherited from Narayan. The court referenced Amarendra's case and Vijaysingji's case to conclude that an adoption by the mother of the last male owner can divest the estate from a collateral heir and make the adopted son the next heir. The court held that the plaintiff's adoption as son to Bhikappa put him in the position of the nearest male heir to Keshav, entitling him to both the watan and separate properties.

Conclusion:
The court advised that the appeal should be allowed, the decree of the High Court set aside, and the decree of the Subordinate Judge of Dharwar restored. The respondent was ordered to pay the appellant's costs of the appeal and those of both the courts in India.