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TMI Blog1943 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... from the ordinary Hindu law. 2. The family are governed by the Mitakshara and the pedigree table hereunder given represents it sufficiently for the purposes of the case : 3. Dhulappa's sons Punnappa and Hanamantappa separated long ago-in 1857, and the Alnavar watan with its lands went to Punappa Narayan, one of his three sons, separated from him in his lifetime taking as his separate share two plots or parcels of land represented by Revenue Survey numbers 173/2 and 174/1 which are included in the lands now claimed by the plaintiff. Thereafter Punnappa died in 1901 and his son Gundappa in 1902, so that in 1905 Bhikappa and his minor son Keshav were the only coparceners in the joint family. In 1905 Bhikappa died leaving his widow gangabai and his son Keshav. In 1908 Narayan died leaving a widow but no issue; and the widow having in or about that year remarried, the two plots which were his separate property devolved by inheritance upon Keshav as being his nearest reversioner at the date of the remarriage, Keshav lived till 1917 when he died unmarried. At that date his nearest heir was the defendant Shankar, a somewhat remote collateral, who obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly speaking according to the view taken by our Courts, there was at Nana's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption. (p. 471). This reasoning had been questioned by Seshagiri Ayyar J. in Madana Mohana v. Purushothama (1914) I.L.R. 38 Mad. 1105, 1118; also by Venkatasubba Rao J. in Panyam v. Ramalakshmamma (1931) I.L.R. 55 Mad. 581,590 After Amarendra Mansingh v. Sanatan Singh (1933) L.R. 60 I.A. 242 : s.c. 35 Bom. L.R. 859 had cast further doubt upon it, a full bench of the High Court of Bombay had in Balu Sakharam v. Lohoo Sambhaji [1937] Bom. 508 : s.c. (1936) 39 Bom. L.R. 382, F.B. dealt with the matter, the judgment of the full bench being that of Beaumont C, J. with which N. J. Wadia J. agreed and from which Rangnekar J. dissented. In that case as in Chandra's case the property at the date of the adoption to a pre-deceased coparcener had. already vested in an heir of the last male holder nearer to him than a natural born son of the predeceased coparcener would have been. The present case is different in that the plaintiff, if he is an heir of Keshav, is a nearer heir than the defendant. The learned Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging its character as an absolute right and founding on qualifications which impair its completeness. This argument will be considered first, 8. Upon the initial question of the validity of the plaintiff's adoption their Lordships must reject the view that Gangabai's power to adopt came to an end on her son Keshav's death by reason that he was the sole surviving coparcener in the joint family. This circumstance would seem, upon the principles declared in Amarendra's case, to have no bearing upon the continuance of Gangabai's authority. As stated by the Board in Vijaysingji Chhatrasingji v. Shivsangji Bhimsangji (1935) L.R. 62 I. A. 161 : s.c. 37 Bom. L.R. 562, the power of a widow to adopt does not depend upon the question of vesting or divesting of the estate. (p. 165), Their Lordships on this point agree with the majority of the full bench in Balu Sakharam's case and find themselves unable to accept the conclusion of Rangnekar J, who supported Chandra's case. The learned Judge seems also to have considered it to be settled law (p. 572) that the widow's power to adopt can be defeated by a partition between coparceners, a view which has since b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sens as others enter the family by birth or adoption. What principle requires that the death of the last surviving coparcener should prevent any further fluctuation of the interest to which he was entitled notwithstanding that a new member has since then entered the family by adoption ? There is, of course, some convenience in bringing fluctuations to an end, hut other principle it is difficult to find. There is force in the comment of Seshagiri Ayyar J. on the Bombay decisions : The learned Judges seem to regard the joint family as a quasi-corporation which loses this character by the death of the last male member. Madam Mohana v. Purushothama (1914) I.L.R.38 Mad. 1105 A broader, and as their Lordships think, a more adequate view, is that taken by the High Court at Nagpur (p. 718) :- We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. And in Pratapsing Shivsing v. Agarsingji Raisingji (1918) L.R. 46 I.A. 97 : s.c. 21, Bom. L.R. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the adopting widow was the mother of the last surviving coparcener. Her power to adopt could not have been exercised in his lifetime, and if exercised after his death, cannot, as their Lordships think, be given any less effect than would have attached to an adoption made after his death by the widow of a pre-deceased collateral. It must vest the family property in the adopted son on the same principle, displacing any title based merely on inheritance from the last surviving coparcener. On the latter's death it might well be, as already noticed, that his mother was not the only lady who as widow of a pre-deceased coparcener still retained the right to adopt a son. If the rights of both were exercised and the other adopted son claimed to exclude the plaintiff from any share in the family property, the plaintiff would have no logical defence on the footing that he was merely Keshav's heir. 12. In Bah. Sakharam's case the question whether the adoption does not divest property in favour of the adopted son was referred to the full bench in a double form (question II (a) and (b) [1937] Bom. at pp. 543-4) according as the person in whom the property at the date of the ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Krishan Chandra Das (1869) 2 Beng. L.R. (F. B.) 103) and stated by the Board to be that (p. 141) : According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. Their Lordships say nothing as to these decisions which appear to apply only to cases of inheritance and which do not seem to have proceeded on the footing that the adoptions in question were invalid. But in Amarendra's case, Faizuddin's case was among those cited to the Board (L. R. 60 I.A. at p. 243). Yet Bibhudindra, the last male owner of an impartible estate, having died 'unmarried, his mother adopted Amarendra, and it was held by the Board that this adoption divested Banamalai, in whom at Bibhudindra's death the estate had vested by virtue of the family custom. And in the later case of Vijaysingji Ghhatrasingji v. Shivsangji Bhimsangji (1935) L.R. 62 I.A. 161, s.c. 37 Bom. L.R. 562 the Board stated the effect of their previous decision by saying that (p. 165) : the adoption in that case, which was made by a widow after the death of her natural son without leaving a son or a widow, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom. The zemindari property claimed in Amarendra's case was adjudged to belong to the adopted son on this last mentioned principle-that is, as heir of the last male owner. 15. If the effect of an adaption by the mother of the last male owner is to take his estate out of the hands of a collateral of his who is more remote than a natural brother would have been and to constitute the adopted person the next heir of the last male owner, no distinction can in this respect be drawn between property which had come to the last male owner from his father and any other property which he may have acquired. Keshav's separate watan property devolves not on his mother who would be his heir at the general law but on the nearest male in the line of heirs; and if the plaintiff's adoption as son to Bhikappa puts him in that position, his right to succeed cannot be limited to such watan property as Keshav derived from Bhikappa. On this ground the appellant's suit succeeds as regards the two parcels of land which Keshav inherited from Narayan. 16. Their Lordships will humbl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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