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PETITIONER: GOSWAMI SHREE VALLABHALALJI

       Vs.

RESPONDENT: GOSWAMINI SHREE MAHALAXMI BAHUJI MAHARAJ

DATE OF JUDGMENT: 13/09/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS WANCHOO, K.N.

CITATION:  1962 AIR  356            1962 SCR  (3) 641

ACT: Adoption-Goda Dattak Customs-Widow’s sister’s husband-If can be adopted as son.

HEADNOTE: The  first respondent on the death of her husband who was  a descendant of the famous Vaishnava teacher  Vallabhacharyaji and  was possessed of certain Devattar properties belong  to the Thakur of which be was the Shebait, adopted her sister’s husband  as a son under the Goda Dattak Custom  of  adoption which  prevailed amongst the Vallabhacharya community.   The appellant  who was the own brother of the deceased  adoptive father  contended  inter  alia that under  the  Goda  Dattak custom a widow could not adopt her sister’s husband as a son to her husband, that the adoptee should belong to the family of the adopter and that the widow should obtain the ,consent of her husband’s sapindas for the adoption. Held, that the rule in Dattaka Mimansa against the  adoption of  the son of a woman who could not be married  because  of Viruddha Samandha relationship is recommendatory and even if the limitation of the orthodox Dattak adoption apply to Goda adoption  there  is  no bar to the adoption  of  the  wife’s sister’s husband. Mst.  Abhiraj Kuer v. Devendra Singh, C. A. No. 379 of  1961 decided on 15-9-61, referred to. In  the present case it has not been proved that  under  the Goda Dattak customs a custom existed barring the adoption of members of other Vallabhachari families if it were  possible to  adopt members from the adoptive father’s family.  As  in the  present  case there was authority from the  husband  to adopt  the question of the consent of the sapindas  of  the’ husband did not arise even if he was governed by the  Madras School of Mitakshara.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 143 of 1956. Appeal  by special leave from the judgment and decree  dated September 23, 1952, of the Bombay High Court in First Appeal No. 57 of 1949. S.   P. Desai and I. N. Shroff for the appellant.

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A.   V.   Viswanatha Sastri, J. B. Dadachanji, S.N.  Andley, Rameshwar Nath and P.L. Vohra, for  the respondents. 642 1961.   September  13.   The  Judgment  of  the  Court   was delivered by DAS  GUPTA, J.-The appellant and the Second  respondent  are both  descendants  of Vallabhacharyaji,  a  great  Vaishnava teacher   who   flourished   more  than   400   years   ago. Vallabhacharyaji  left his native place near Champaranya  in South India, and coming to Gujarat and other parts of  India established  shrines  for the worship of Vishnu  at  several places.  His descendants became the priests and Shebaits  of such   shrines  and  also  of  other   shrines   established thereafter.  These came to be known as Gadis.  While each of these  Gadis  had  a  temple  for  the  worship  of  Vishnu, considerable properties, movable and immovable were acquired for  them from time to time by gift or otherwise.  One  such shrine was established more than 100 years ago at Nadiad and about  the year 1899 A. D. a descendant of  Vallabhacharyaji who on adoption took the name of Anniruddhalalji Murlidharji became the head of the Nadiad shrine and was thus  possessed of the movable and immovable properties appertaining to  the Gadi.   This  gentleman  also became by,  adoption  head  of another  shrine known as the Moti Haveli at Jamnagar in  the year   1913  and  then  took  a  slightly   different   name Annirudhalalj’i  Brijeshji.   Both these adoptions  were  in accordance  with  the Goda Dattak custom of  adoption  which prevailed among the members of the Vallabhacharya community. Aniruddhalalji Murlidharji (alias Aniruddhalalji  Brijeshji) died on December 17, 1935 leaving a widow Mahalaksbmi Bahuji Maharaj, who is the first respondent before Us. The  question of adopting an heir to him assumed  importance immediately on his death and it appears there was some talk. of adopting by the Goda Dattak custom one of the sons of the present  appellant, who it is necessary to mention. was  the natural brother of Aniruddhalalji.  The talks however proved fruitless and ultimately on June 1, 1946, 643 the  second  respondent  who as already stated  was  also  a descendant of Vallabhacharya was adopted.  The present  suit was  brought by the appellant in respect of the  Haveli  and other properties left by Anniruddhalalji at Nadiad.  In this he,  challenges the validity of the adoption of  the  second respondent  by  the  first  respondent,  Mahalakshmi  Bahuji Maharaj. The  main  prayer  in the suit is  for  a  declaration  that respondent  No.  2  was  not  the  legally  adopted  son  of Aniruddhalalji  and did not acquire  any right or shares  in his  property  by the alleged adoption.  The  other  prayers included one for a declaration that he the appellant was the nearest heir of the deceased, that the first respondent  had no other right in the property except as a Hindu widow,  for an  injunction  restraining  her from  frittering  away  the property or any part thereof, for an order on her to produce the balance of the sale proceeds of Maharaja’s Bag which she had sold off and for an order on both these respondents , to render accounts of the properties of Goswami Anniruddhalalji which might have come into their hands. It  is no longer in dispute that the plaintiff would be  the nearest heir on the death of the widow if there has been  no valid  adoption of the second respondent to  Aniruddhalalji. The  appellant  challenged the validity of the  adoption  on three main grounds.  The first was that under the custom’ of the  Vallabharcharya  community  under  which  Goda   Dattak adoption is made, the adoptee (using that word to denote the

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boy  taken in adoption) must be only from the family of  the adoptive father if this be possible and in the present  case even  though the plaintiff himself as well as his  two  sons were  available  for  adoption  the  second  respondent  was adopted  in preference to them.  The second ground was  that under  the  Goda Dattak custom the wife’s  sister’s  husband cannot  be  validly  adopted.  The  third  around  was  that Aniruddhalalji 644 had expressed his desire in this matter of adoption in  such a  manner that there was an implied prohibition by him  from taking  in adoption anybody except the present appellant  or one of his sons. The  first two grounds were raised in Issue No. 8 of the  19 Issues  that were framed by the Trial Court while the  third ground was raised in Issue No. 12.  These Issues are in  the following words :-- Issue No 8 Does the. plaintiff prove the custom that in Goda adoption:--               (i)   a   widow  cannot  adopt  her   sister’s               husband as a son to her husband ?               (ii)  the adoptee should belong to the  family               of    the adopter ? Issue No. 12:  Does the plaintiff prove that  the  Defendant No. 1 was prohibited by Anniruddhalalji from adopting in the Goda form any one except the plaintiff or one of his sons ? It may be mentioned that an Issue was framed as, regards the factum of adoption in Issue, No. 6, viz., whether  Defendant No.  2’s  adoption is proved, in view of what  was  said  in paragraph  14  of the plaint that he was not  aware  whether Defendant  No.  1  and Defendant No.  2  had  performed  any ceremonies  or  rites according to the Goda Dattak  form  of adoption  or  as  required by Hindu  Law.   This  issue  was answered  in  the affirmative and the  correctness  of  that answer has not been challenged before us. The  Trial Court held that the plaintiff had riot been  able to establish the alleged custom for Goda Dattak that a widow could not adopt her sister’s husband as a son to her husband nor  that  the adoptee should belong to the  family  of  the adopter  and  accordingly  answered  Issue  No.  8  in   the negative.  As regards Issue No. 12 the plaintiff relied on a letter which was marked Ex. 115, apart from his own evidence and  evidence  of some of his witnesses.   The  Trial  Court accepted  Defendant No.-- 1’s contention that  this  letter had 645 been  inspired by the plaintiff himself and so no.  reliance could  be  placed on’ it.  The oral testimony given  by  the plaintiff  and other witnesses in support of the story  that Aniruddhalalji had in his life time given certain directions in the matter of adoption of a son to him was also found not reliable.   Accordingly, Issue ,No. 12 was also answered  in the negative. One  other  argument addressed to the Trial Court  was  that Defendant  No.  1  had  not  obtained  the  consent  of  her husband’s sapindas for this adoption and so under the Madras School  of  Mitakshara Law, which it is  said  governed  the parties,   the  adoption  was  invalid.   The  Trial   Court considered  this argument even though the, question  whether the Madras School of Mitakshara governed the parties and  so the  adoption  was  invalid  without  the  consent  of   the husband’s,  sapindas had not been specifically raised in the pleadings  nor  had any issue been framed  on  ,-,his.   The learned  Judge  however  rejected  the  argument,  being  of opinion  that  "the  ordinary law  of  adoption  which  puts restrictions on the widow’s right to adopt in Madras  cannot

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be taken to be prevailing in the case of customary  adoption in the Goda form by widow in the Goswami families." Holding that the Defendant No.2’s adoption could not be held to  be  invalid  the Trial Court dismissed  the  suit with costs. The  plaintiff’s  appeal to the High Court of Bombay  met  a similar fate.  The learned Judges of High Court agreed  with the  Trial  Court that the plaintiff had not  been  able  to prove  either  that  the wife’s  sister’s  husband  was  not eligible for adoption under- the Goda Custom or that the son to be adopted must if possible come from the family of-their adoptive  father.   On  the question whether  there  was  an implied   prohibition  to  adopt  anybody  other  than   the plaintiff  or his sons, .also, they agreed with,  the  Trial Court even though they were not prepared to 646 say  that the letter (Ex. 115) was written by the  Defendant No., 1 under undue influence of the plaintiff., The learned Judges of the High Court refused to consider the further question raised on behalf of the appellant that  the adoption  was  invalid  in the absence  of  consent  of  the Sapindas  as the proper. pleading on which, such a  question could  have been raised had not been made in the plaint  and no  issue had been framed.  The High Court refused to  frame an  issue  then, but Rave time to the plaintiff to  make  an application for amendment of the plaint.  An application for amendment  was  duly made but was rejected  by  the  learned judges who were of opinion that the application had not been made in good faith.  The-appeal was dismissed with costs. The  plaintiff  has  filed the present  appeal  against  the decision  of  the High Court after obtaining  special  leave from this Court. The  appellant contends that the Courts below were wrong  in holding, firstly. that a custom which barred the adopted  of the wife’s sister’s husband in the Goda form of adoption had not been proved. secondly that a custom that if possible the adoptee  must be from the family of the adoptive father  had not  been  proved;  and  lastly  that  the  alleged  implied prohibition against adopting anybody excepting the plaintiff and one of his sons had not been established. It was also urged that the High Court was wrong in  refusing to  entertain the plea that the adoption was invalid in  the absence of the consent of the husband’s sapindas and in  any case totally wrong in allowing the application for amendment of the plaint seeking to raise such a plea. Before coming to the several grounds urged on behalf of  the appellant we have to consider a preliminary objection raised on  behalf of the respondent.  It is urged that this  appeal has  become  infructuous  by reason  of,  the  operation  of section 14 of the Hindu Succession Act, It is said that, as 647 admittedly respondent No. 1, Mahalakshmi Bahuji Maharaj, was in  possession of the properties in suit at the date of  the commencement  of  the Hindu Succession Act, she  became  the full  owner  of  the  properties in  question  in  case  the adoption by her of respondent No. 2 is invalid.  There maybe some  force in this argument if the properties  in  question are the private secular properties of Anniruddhalalji.   The position  may well however be different if these  properties were  the  Devattar properties belonging to  the  Thakur  of which Anniruadhalalji was a Shabeit. It appears that a suit has actually been brought by  certain Vaisnavas  seeking a declaration that these  properties  are all  Devattar-properties  of the Thakur.  In  view  of  this position  we are of opinion that it would not proper for  us to  decide in the present case whether under section  14  of

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the Hindu Succession Act Defendant No. 1 had become the full owner  of the properties in suit if the adoption by her  was invalid.   We shall therefore decide this appeal  on  merits leaving  it open to the 1st respondent to pursue  her  claim under section 14 of the Hindu Succession Act if that becomes necessary. Coming  now to the merits of the appeal it is  necessary  to consider first the question of the alleged limitation on the power  to  adopt  by Goda practice  as  regards  the  wife’s sister’s  husband  or a member from  another  Vallabhacharya family  even though members of the adoptive father’s  family be  available.  It will be helpful to consider in this  con- nection  first the objects of Goda adoption.  These  objects have  been  mentioned by plaintiff’s  own  witness  Chandras Shankar  Laxmishakar  Upadhyaya who appears to have  a  fair amount  of knowledge of Goda Dattaka adoptions, to be  three fold.  The primary object was mentioned by him to be that 1- &  "person  going in "Goda" adoption  can  perform  "several (worship) etc., of the Thakorji (idol) and that tradition of "sewa"  (worship  etc.,)  can be’  continued".   The  second object mentioned by him is "that, after. the death of the 648 person taking in adoption, the person going in adoption  can perform  his "shraddha" ceremonies etc "’ The  third  object according  to  him is "to continue the line  of  the  person taking in adoption." Other witnesses who have given evidence on this point have said more or less the same thing.  It  is obvious that if the above be the objects of Goda adoption it must be implicit In the nature of Goda adoption that anybody who would be incapable of accomplishing any of these objects would be ineligible for adoption.  It is on this basis  that it  was  urged that wife’s sister’s husband’s  son  was  not eligible.  The argument is that the wife’s sister’s  husband would  be  unable  to perform the Shradha  of  the  adoptive father  because the adoptee would not cease to be the  Shadu of the person to whom the adoption is made,- it was  further said that the adoptee would  the incapable of performing the Sradh  of the adoptive maternal grand father as  the  latter would be the adoptee’s father-in-law. Unfortunately   however  for  the  plaintiff’s   case   ’his witnesses  were unable to quote any authority  except  their own  ipso dixit for this proposition that the adoptee  would be incapable of performing the Sradh of his adoptive  father or  adoptee maternal grand father.  The plaintiff’s  witness Anantkrishna  Sastri  a Mahamahopadhyaya, made  a  statement that  according to Dharmashastras a wife’s sister’s  husband cannot  be  adopted.   As  authority  for  this  proposition he  relied on a passage in Dattak Mimanea which  prohibits the  adoption  of  a daughter’s son, a sister’s  son  and  a mother’s  sister’s son and adds thus:-"This  clearly  proves that  a daughter’s son and a mother’s sister’s son  are  (in this respect) equal to a sister’s son.  This is just  proper because  there  is  in  these  three,  the  same  degree  of (prohibited) marriageship (Viruddha Sambandha)." It  is true that Dattak Mimansa has in a later passage  gone further  and  said  that son of a  woman  who-could  not  be married because of Virudha Sambsndhar relationship should be excepted from adoption  649  We  have  however  held in Mrs. Abhiraj  Kuer  v.  Debendra Singh(1)  in which judgment has been delivered to-day  that this  rule  in Dattaka Mimansa  against  Viruddha  Sambandha putra is only recommendatory and not mandatory.  Apart  from that it is difficult to see how the wife’s sister’s  husband can be considered to be ViruddhaSambandha-putra.  It is thus

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clear  that even if the limitations of the  orthodox  Dattak adoption  apply  to  Goda adoption there is no  bar  to  the adoption of, the wife’s sister’s husband. On  the materials on the record we are also  satisfied  that there  is  no custom barring the adoption of  the  wife,  is sister’s husband in Goda Dattak form. On the question whether in Goda Dattak adoptions the adoptee must if possible be from the family of the adoptive  father, it is important to notice that the several objects for which Goda Dattak adoptions are made may well be satisfied even if the  adoptee  be  from  some  other  Vallabhacharya  family. Practically  the only evidence given in support of the  case that  there  is  a custom as alleged that  if  possible  the adoptee must be from the adoptive father’s family is by  the plaintiff  himself.  His witness Lakshmi  Shankar  Upadhaya, who,  as al. ready stated, appears to have considerable  ex- perience  of  Goda Dattaka adoptions does not speak  of  any such custom.  Even his witness Hari Krishna Virji Sastri who appears  rather partial to him--it may be mentioned that  he admits having read even the plaint on being sent for by  the plaintiff-does  not  speak of any such custom.  Against  the plaintiff’s  own  evidence that there is such a  custom  we, find defendant No. 2 giving three instances where boys  from other  families  were  adopted in Goda  Dattak  even  though members in the adoptive father’s family were present.  It is true that the evidence does not show whether such  adoptions from other family (1)  C.A. No. 379 of 1958 decided on 15.9,61, 650 took,  place  only after members in  the  adoptive  father’s family  who might have been available for adoption  declined to  be adopted.  It will be unreasonable however  to  expect such  evidence  as to the exact  circumstances  under  which adoptions were made from other families even in the presence of members in the adoptive father’s family.  But even if  it be  correct  to say that the defendant has  not  established clearly  that members from other families were adopted  even though members in the adoptive father’s family were  willing to  be adopted, the fact remains that the plaintiff has  not been able to establish by either any authoritative texts  or from the opinion of some person well learned about the  Goda Dattaka customs that a custom exists barring the adoption of members  from  other  Vallabhacharya  families  if  it  were possible to adopt members from the adoptive father’s family. This  brings  us  to the contention  most  vehemently  urged before   us  that  the  evidence  establishes   an   implied prohibition by Anniruddhalalji of the adoption of any person other  than the plaintiff or one of his two sons.   Reliance is  placed first on the letter Ex. 115.  We are inclined  to agree  with the High Court that this letter was  written  by Mahalakahmi  Bahuji Maharaj of her own accord and cannot  be brushed aside as having been written under the influence  of the  plaintiff.  All that the letter shows however  is  that Anniruddhalalji had expressed a desire that Gokul Nath  (who is  plaintiff’s  son) should be taken in  adoption  to  him. While  a reasonable reading of this letter would  show  that Anniruddhalalji  authorized  Mabalakshmi Bahuji  Maharaj  to make  an adoption and that he expressed his  preference  for the  adoption of Gokal Nath, the letter does not  show  even remotely  that  Anniruddhalalji indicated any wish  that  no body except Gokul Nath should be adopted.  It is interesting to remember in this connection that plaintiff’s own  in  the Plaint is not that Anniruddhalalji had 651 declared any wish that nobody other than Gokul, Nath  should

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be adopted but that his desire was that, "no body other than the  1 plaintiff or any one of hit sons should be  adopted." The  plaintiff in his own testimony has no doubt  said  that Anniruddhalalji  after  asking  the plaintiff  to  give  his eldest son in Goda adoption told Mahalakshmi Bahuji  Maharaj that  ,only his brother’s son should be adopted".  if,  this was  true  it is difficult to understand why  the  plaintiff tried to make a case in the plaint that Anniruddhalalji  had declared a wish that nobody except the plaintiff himself  or one  of  his  sons  should  be  adopted.   The   plaintiff’s witnesses  who  have spoken as regards  the  declaration  by Anniruddhalalji of his wish in this matter of adoption  have not stated that Anniruddhalalji said that only his brother’s son  should be adopted.  His witness Nateswarji the  brother of Anniruddhalalji’s, first wife says that "during his  last illness Anniruddhalalji had spoken in my presence and in the presence  of  Defendant No. 1 that his desire was  to  adopt Bhaiya Raja and he had inquired of Defendant No. 1 what  her desire was".  Defendant No 1 had replied that her desire was the  same as his desire.  Such a talk had taken  place  only once in my presence." Accepting that Nateshwarji has  stated the full truth here his evidence does not show anything more than was indicated in the letter Ex. 115 itself and does not show that Defendant No. 1 prohibited even by implication the adoption   of  anybody  else  excepting  Bhaiya  Raja   (the plaintiff’s son).  The plaintiff’s witness Gobardhan  stated in  hip,  evidence  : Anniruddhalalji was  speaking  to  all persons in touch with him that he wanted to take Bhaiya Raja in "Goda Dattak" and later that "he was spoken to by Maharaj that he wanted to take Bhaiya Raja in adoption".  Even  this witness  who  goes to the length of saying that a  date  was actually fixed by Anniruddhalalji for the adoption of Bhaiya Raja-&  story which none of the other witnesses give-is  not prepared to say that Anniruddhalalji said to Defendant No. 1 or to anybody else that nobody other 652 than  Bhaiya Raj should be adopted.  It is not  possible  in this state of the evidence to accept as true the  plaintiffs uncorroborated   testimony  that  Anniruddhalalji  said   to defendant  No. 1, Mahalakshmi Bahuji Maharaj that  only  the plaintiff’s son should be adopted. We are therefore of opinion that the High Court is right  in its    conclusion   that   no   implied    prohibition    by Anniruddhalalji  of  adoption  of  anybody  other  than  the plaintiff or his sons has been proved. The  last  argument that the parties being governed  by  the Madras School of Mitakshara, the adoption is invalid in  the absence  of  consent  by  the  husband’s  sapindas  must  be rejected, for the simple reason that the letter Ex. 115  and the  evidence  of the plaintiffs own witnesses  justify  the conclusion that in his life time Anniruddhalalji  authorised Mahalakshmi  Bahuji  Maharaj to make an adoption  after  his death-though at the same time indicating his preference  for one  particular  boy.   The  necessity  of  consent  of  the husband’s  sapindas  would  arise if the  Madras  School  of Mitakshara  law  was  applicable-only  where  there  was  no authority from the husband. In the present case there was authority from the husband  to adopt  and so even if the rule of Orthodox  Dattak  adoption was  applicable  and  Anniruddhalalji was  governed  by  the Madras  School of Mitakshara the question of any consent  of husband’s  sapindas does not arise at all.  In the  view  we have  taken of this argument it is unnecessary for  us  to consider  whether the High Court was right in rejecting  the application for amendment of the plaint  that was made by th

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plaintiff in order to induce the High Court to consider this very  argument.   It is also not necessary for us  to  enter into  the  question on which some evidence appears  to  have been  led 1 though no issue was framed, viz.  whether   Goda Dattak adoption is a mere variant 653 of the orthodox Dattak adoption or an affiliation altogether different  from  Dattak adoption.  We therefore  express  no opinion on this question. The appeal is dismissed with costs.                                         Appeal dismissed.