Case: Gurunath Alias Bhimaji Vs. Kamalabai, Kom Kenchangaudanadgaudar And Others

power of adoption to an end;(2) that the power to adopt does not depend upon any question of vesting or divesting of property; and(3) that a mothers authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence.16. The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji ([1935] L.R. 62 I.A. 161) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil ([1943] L.R. 70 I.A. 232). One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1 S.C.R. 1), but that apart no doubt was cast in this decision on the above rule.17. The result of these series of decisions is, that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the sons widow competent to adopt" has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consistent with these principles. During the arguments no substantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widows power of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption comes to an end by the interposition of a grandson or the sons widow competent to continue the line by adoption.The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendras case had no application to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this connection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram ([1941] I.L.R. Nagpur 178). There a Hindu died leaving a widow and his son and the son died leaving a widow only who re-married. It was held that the power of the mother revived on the re-marriage of the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgment :"If the observation quoted from Amarendra Mansingh v. Sanatan Singh ([1933] I.L.R. 12 Pat. 642, 658) be understood as limited to the case where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear except for the words "and can never be revived" quoted from Ramkrishna v. Shamrao ([1902] I.L.R. 26 Bom. 526). Strictly the above is the true meaning of their Lordships words. That amounts to nothing more than this : that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the "interposition" is ended. Logic says that as the death of the son removes his "interposition" whereupon Cs power revives so the death of D removes her interpositions and so Cs power revives".18. In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone". If that is the true reason, obviously the duty having come to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram ([1941] I.L.R. Nag. 178) was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh ([1945] I.L.R. 21 Luck. 1). The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added (though under some misapprehension) that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to. The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. The question of limitations upon the power of the widow to adopt thus stated in the Chundrabullee series of decisions was again affirmed by the Judicial Committee in Thayammal and Kuttiswami Aiyan v. Venkatarama Aiyan ([1887] L.R. 14 I.A. 67) decided in 1887 and in Tarachurn v. Suresh Chunder ([1889] L.R. 16 I.A. 166) decided in 1889.In the year 1902 this question came up for consideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra v. Shamrao ([1902] I.L.R. 26 Bom 526). There a grandmother succeeded to her grandson who died unmarried and it was held that her power to make an adoption had come to an end and that the adoption was invalid. Chandavarkar, J., who delivered the judgment of the FullThe next and the most important decision of the Judicial Committee in regard to this matter was given in the year 1933 in Amarendra Mansingh v. Sanatan ([1933] L.R. 60 I.A. 242) where there was a departure from or at least a reorientation of the old doctrine, and stress was laid on the spiritual rather than on the temporal aspect of adoption, linking it up with the vesting and divesting of the estate. There a Hindu governed by the Benaras school was survived by an infant son and a widow, to whom he had given authority to adopt in the event of the son dying. The son succeeded to his fathers impartible zamindari but died unmarried at the age of 20 years and 6 months. By a custom of the family which excluded females from inheritance the estate did not go to his mother but became vested in a distant collateral. A week after the sons death she made an adoption. It was held that the adoption was valid and it divested the estate vested by inheritance in the collateral. All the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Board. At page 248 of the report it is said as follows :"In their Lordships opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the fathers duty had been performed and the means provided by him for its fulfilment spent : the "debt" he owed is discharged, and it is upon the new generation that the duty is now cast and the burden of the "debt" is now laid.11. It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognised as the inherent right of the son, is altogether a secondary consideration....... that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.12. Having regard to thisdoctrine as to the religious efficacy of sonship, their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man. The Hindu law itself sets no limit to the exercise of the power during the lifetime of the widow and the validity of successive adoptions in continuance of the line is now well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property. But that there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect, has long been recognised both by the Courts in India and by this Board, and it is upon the difficult question of where the line should be drawn, and upon what principle, that the argument in the present case has mainly turned".In another part of the judgment their Lordships observed as followsbeing clear upon the decisions above referred to that the interposition of a grandson, or the sons widow, brings the mothers power of adoption to an end, but that the mere birth of a son does not do so, and that this is not based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the sons lifetime will revive".The learned counsel for the appellant placed reliance upon the last sentence in the passage in the Privy Council judgment quoted above and contended that if the power of the widow which remained suspended during the lifetime of the son could revive on the son dying sonless and unmarried, logically the power must also revive when the son and his widow and the grandson and his widow all died out. Reliance was also placed on the passage already cited in which their Lordships laid emphasis on the proposition that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it and it was contended that the grounds on which an outside limit was laid on the exercise of the widows power in the Chundrabullee series of decisions no longer survived, in view of the ratio in Amarendras decision and that it having been held that the power of adoption did not depend on and was not linked with the devolution of property or with the question of vesting or divesting of property and could be exercised whenever necessity for continuing the line arose, it should be held that when the son and his widow were dead and the grandson to whom he handed the torch for continuing the line also died, the power of Gangabai to make the adoption revived and thus the adoption was valid. This argument, in our opinion, is not well founded as it is based on an incorrect apprehension of the true basis of the rule enunciated in this judgment, the rule being that "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to the grandson or to the sons widow, the mothers power is gone". In the words of Chandavarkar, J. affirmed by the Judicial Committee in Madana Mohana v. Purushothama Deo ([1918] L.R. 45 I.A. 156)"the power having once been extinguished it cannot afterwards be revived". In other words the true rule is this :"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".The contention of the learned counsel therefore that even if the second generation dies without taking steps to continue the line the grandmother still retains her authority and is still under a duty to continue the line cannot be sustained.The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji ([1935] L.R. 62 I.A. 161) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil ([1943] L.R. 70 I.A. 232). One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1 S.C.R. 1), but that apart no doubt was cast in this decision on the above rule.17. The result of these series of decisions is, that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the sons widow competent to adopt" has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consistent with these principles. During the arguments no substantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widows power of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption comes to an end by the interposition of a grandson or the sons widow competent to continue the line by adoption.The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendras case had no application to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this connection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram ([1941] I.L.R. Nagpur 178). There a Hindu died leaving a widow and his son and the son died leaving a widow only whoIt was held that the power of the mother revived on theof the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgmentthe observation quoted from Amarendra Mansingh v. Sanatan Singh ([1933] I.L.R. 12 Pat. 642, 658) be understood as limited to the case where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear except for the words "and can never be revived" quoted from Ramkrishna v. Shamrao ([1902] I.L.R. 26 Bom. 526). Strictly the above is the true meaning of their Lordships words. That amounts to nothing more than this : that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the "interposition" is ended. Logic says that as the death of the son removes his "interposition" whereupon Cs power revives so the death of D removes her interpositions and so Cs power revives".In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone". If that is the true reason, obviously the duty having come to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram ([1941] I.L.R. Nag. 178) was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh ([1945] I.L.R. 21 Luck. 1). The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added (though under some misapprehension) that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to. The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case.