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PETITIONER: SAU ASHABAI KATE

       Vs.

RESPONDENT: VITHAL BHIKA NADE

DATE OF JUDGMENT17/10/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) THOMMEN, T.K. (J)

CITATION:  1990 AIR  670            1989 SCR  Supl. (1) 464  1989 SCC  Supl.  (2) 450 JT 1989 (4)   163  1989 SCALE  (2)866

ACT:     Hindu  Law:  Remarriage of son’s widow--Power  of  son’s mother to adopt--Whether revives.

HEADNOTE:     The disputed property belonged to a joint Hindu  family, governed  by  Mitakshra law of which one Bhiku and  his  son were  coparceners.  Bhiku died leaving  behind  Parvati  his widow  and a son, Balu. Soon after, Balu too  died,  leaving behind  his  widow Lilabai who gave birth  to  a  posthumous daughter,  the  present appellant.  Sometime  later  Lilabai remarried. Thereupon Parvati, Bhiku’s surviving wife adopted Vithal,  the present respondent in this appeal.  The  appel- lant,  Ashabai on attaining majority filed the present  suit for a decree for possession of properties with mesne profits and  a  decree  for money and challenged the  power  of  her grand-mother to adopt.     The trial court upheld the adoption of the defendant  as valid  and dismissed the suit. The plaintiff  Ashabai  chal- lenged  the decision by an appeal. The Appellate  court  al- lowed the appeal and passed a decree in her favour  granting the reliefs claimed. Thereupon the defendants challenged the decree  of the first appellate court in the High Court.  The High  Court  ruled that a Hindu widow’s power  to  adopt  is revived the moment there is nobody to continue the line, and thus  the  adoption of the respondent was  found  legal  and valid  and the decree in favour of  the  plaintiff-appellant was  set aside and her suit dismissed. Hence this appeal  by special leave by the plaintiff.     Allowing  the appeal in part by decreeing the  suit  for half  share in the suit properties with mesne  profits  this Court,     HELD: There does not appear to by any scope for  holding that on the remarriage of the son’s widow the power of son’s mother to adopt revives. [467F]     In the instant case, on the death of Balu, the responsi- bility  for the continuance of the family line fell  on  his widow  Lilabai by the power of adoption vesting in  her  and the power of Parvati to adopt was extin- 465 guished  permanently  and is not revived even  on  Lilabai’s

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remarriage. Consequently the adoption of the first defendant was invalid in the eye of law and he did not get any  inter- est in the suit properties. [468B]     The  properties  belonged to the joint family  of  which Bhiku  was a coparcener. On his death in 1942 his wife  Par- vati  got  under  S. 3(2) of the  Hindu  Women’s  Rights  to Property  Act, 1937, the same interest as Bhiku had  in  the joint family properties. [468C]     The interest which initially devolved on Parvati, howev- er, was limited in nature known as the Hindu Women’s estate. On passing of the Hindu Succession Act, 1957 she became full owner thereof. [468D]     Ram  Chandra  v.  Murlidhar, [1937] 39  Bom.  L.R.  599; Gurunath  v. Kamlabai, [1955] 1 SCR 1135; Amrendra  Mansingh v.  Sanatan Singh, [1933] L.R. 60 I.A. 242; Ramkrishna  Ram- chandra v. Shamrao, [1902] I.L.R. 26 Bom. 526 and Bapuji  v. Gangaram, [1941] I.L.R. Nagpur 178, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1846  of 1974.     From  the  Judgment  and Order dated  25.9.1972  of  the Bombay High Court in Appeal No. 512 of 1965. V.N. Ganpule and Mrs. Urmila Sirur for the Appellant.     V.A.  Bobde, Uday U. Lalit and A.G. Ratnaparkhi for  the Respondent. The Judgment of the Court was delivered by     SHARMA,  J.  This appeal by the  plaintiff-appellant  is directed  against  the  decision of the  Bombay  High  Court dismissing  her  suit for possession of the  properties  de- tailed in the plaint.     2.  The  disputed properties belonged to a  joint  Hindu family governed by Mitakshara law of which one Bhiku and his son Balu were coparceners. Bhiku died on June 6, 1942  leav- ing  behind  his widow Parvati, the defendant No. 2  in  the present  suit  and  Balu who dies soon  after  his  father’s demise  on  July  24, 1942. In November  1942  Balu’s  widow Lilabai  gave  birth  to a posthumous daughter  who  is  the present  appellant.  Sometime later  Lilabai  remarried  and thereupon Parvati 466 adopted Vithal, the first defendant in the present suit,  in the  year 1949. After attaining majority, appellant  Ashabai filed  the present suit for a decree for possession  of  the properties  with  mesne profits and a decree for  money  for Rs.3,000  as  expenses of her marriage. She  challenged  the power  of her grand-mother to adopt the first  defendant  on the ground that her right to adopt was lost on the death  of Balu leaving behind his widow Lilabai.     3. The trial court accepted the defence case, upheld the adoption of the defendant No. 1 as valid, and dismissed  the suit. The plaintiff, Ashabai, challenged the decision by  an appeal which was heard by the Extra Assistant Judge,  Poona, who  allowed the same and passed a decree for possession  of the  suit properties along with mesne profits. Now,  it  was the  turn  of the defendants to question the decree  of  the first appellate court before the High Court under s. 100  of the  Code of Civil Procedure. After considering a number  of Privy  Council and Supreme Court decisions, the  High  Court ruled  that  a Hindu widow’s power to adopt is  revived  the moment  there  is  nobody to continue the  line,  and  since Lilabai incapacitated herself in doing so by her remarriage, the right of her mother-in-law to adopt a son to her husband

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revived.  The  adoption of the first  defendant  was,  thus, found  legal and valid. Accordingly the decree in favour  of the  plaintiff  was set aside and her  suit  dismissed.  The appellant  then  moved this Court under Article 136  of  the Constitution and special leave has been granted.     4.  The case comes from Maharashtra where a Hindu  widow may adopt even without any authority. The contention of  the plaintiff  is that on the death of Balu his  mother  Parvati lost this power which vested in Balu’s widow Lilabai and  on Lilabai’s  remarriage  Parvati’s power did not  revive.  The adoption  of defendant No. 1 was, therefore, illegal.  Reli- ance  was  placed on several decisions of  the  Bombay  High Court including that in Ram Chandra v. Murlidhar, [1937]  39 Bom.  L.R. 599. In similar circumstances the Division  Bench held that the mother’s power to adopt a son was  permanently extinguished  on  the  death of her natural  son  leaving  a widow. The High Court in the present case refused to  follow the  said decision on the ground that the same must be  held to  have been impliedly over-ruled by the judgment  of  this Court  in  Gurunath v. Kamalabai, [1955] 1 SCR  1135.In  our view the High Court has not correctly appreciated the  deci- sion in Gurunath’s case.     5.  The relevant facts in Gurunath v. Kamalabai, may  be briefly put thus. The disputed property belonged to Krishta- rao who died leaving behind two widows--Radhabai and  Ganga- bai--and a son 467 Dattatraya. Dattatraya died in 1913 leaving behind his widow Sundarabai  and a son Jagannath. Sundarabai died soon  after the  death  of her husband and a year later  Jagannath  also died.  Gangabai,  the junior widow  of  Krishtarao,  adopted Gurunath, the appellant before this Court, who filed a  suit claiming  certain rights as the adopted son  of  Krishtarao. One of the issues arising in the case related to the validi- ty  of Gurunath’s adoption. A Bench of seven learned  Judges of this Court examined several decisions of the Privy  Coun- cil including the judgment in Arnarendra Mansingh v. Sanatan Singh, [1933] L.R. 60 I.A. 242, and said that the rule,                         "That the interposition of a  grand-               son, or the son’s widow, competent to continue               the line by adoption brings the mother’s power               of adoption to an end;" was  being  followed for a very long time and has  become  a part  of  Hindu law. They also approved the  observation  of Chandavarkar,  J.,  who delivered the judgment of  the  Full Bench  of the Bombay High Court in Ramkrishna Ramchandra  v. Shamrao, [1902] I.L.R. 26 Bom. 526, to the following effect:                         "Where a Hindu dies leaving 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." They also quoted with approval another part of the  judgment of  Chandavarkar,  J., stating that when a son  dies  before attaining full legal competence and does not leave either  a widow  or  a  son or an adopted son then the  power  of  the mother which was in abeyance during his lifetime revives but the moment he hands. over that torch to another, the  mother can no longer take it. In view of these observations in  the judgment in Gurunath’s case there does not appear to be  any scope for holding that on the remarriage of the son’s  widow the  power of the son’s mother to adopt revives. The  matter does not stop here. Reliance was placed by the appellant  on

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the decision of the Nagpur High Court in Bapuji v. Gangaram, [1941] I.L.R. Nagpur 178, where the facts were identical  to those in the present appeal. The Nagpur High Court had  held that  the power of the mother revived on the  remarriage  of the son’s widow. This Court discussed the Nagpur judgment at some length at pages 1148 and 1149 and disapproved it.  This part of the judgment does not leave any room for doubt  that this Court in Gurunath’s case has affirmed the decisions  of the  Bombay High Court in Ramkrishna Ramchandra v.  Shamrao, [1902] I.L.R. 26 Bom. 526 468 and  Ram Chandra v. Murlidhar, [1937] 39 Bom. L.R.  599,  as laying  down  the correct law and rejected the rule  of  law similar to the plea of the present respondent, recognised by Nagpur  High Court in identical facts and circumstances.  We accordingly hold that on the death of Balu the responsibili- ty for the continuance of the family line fell on his  widow Lilabai  by  the power of adoption vesting in her,  and  the power  of Parvati to adopt was extinguished permanently  and did  not revive even on Lilabai’s  remarriage.  Consequently the  adoption of first defendant was invalid in the  eye  of law and he did not get any interest in the suit properties.     6. Now remains the next question as to the relief  which the  plaintiff is entitled to get in this suit. As has  been observed  earlier,  the  properties belonged  to  the  joint family of which Bhiku was a coparcener. On his death in 1942 his  wife  Parvati got under s. 3(2) of  the  Hindu  Women’s Rights to Property Act, 1937, the same interest as Bhiku had in  the  joint family properties. If a partition  had  taken place  Bhiku  would have got half share in  the  properties, which  on  his death devolved on Parvati. Parvati  is  still alive and is defending the claim of her grant-daughter.  She cannot,  therefore,  be deprived of her half  share  in  the properties.  The interest which initially devolved on  Para- vati,  however,  was the limited in nature  known  as  Hindu Woman’s estate. On the passing of the Hindu Succession  Act, 1956, she became full owner thereof. Likewise the  remaining half share of Balu in the properties, devolved on the appel- lant on her mother’s remarriage and she got a Hindu  Woman’s estate  therein  which ripened in full  ownership  under  s. 14(1) of the Hindu Succession Act. She is thus entitled to a decree for half share in the suit properties, as prayed  for by way of an alternative relief in the plaint. She has  also asked for a decree for partition in case of a partial decree which she is entitled to get. The first appellate court  had also  granted a decree for mesne profits, pendente lite  and future, which should be restored but only in respect of  her half  share.  Accordingly, an inquiry shall  be  made  under Order  XX,  Rule 12, CPC. Her claim for a money  decree  for Rs.3,000  was not allowed even by the first appellate  court and stands finally rejected.     7. In the result, the decision of the High Court is  set aside  and the plaintiff’s suit for half share in  the  suit properties  with  mesne profits as also for portion  is  de- creed.  The appeal is accordingly allowed in part,  but  the parties are directed to bear their own costs throughout. R.N.J.                                   Appeal allowed. 469