Dattatraya Pandurang Patil Paregaonkar vs Radhabai (since deceased by LR) and others

R.M. Lodha, J.—At the outset the learned counsel for the appellant submitted that the respondent No.2 and 3 viz., Smt Kashibai and Smt. Chandrabhaga had died during pendency of appeal and their names be deleted form array of parties. Order accordingly.

The interesting question of consideration importance that arise in the second appeals is Whether in the erstwhile Kolhapur State a brother could be taken in adoption by his brother or such adoption a was prohibited in view of Vat Hukum of 1920 issued by the then Kolhapur State?"

The facts so far as material are capable of being stated with utmost brevity .One Dattaji resident of village Shiroli taluka Hatkanangle within the then Kolhapur State died in they year 19-07 leaving behind his widow Radhabai. The said Radhabai in the year 1920 adopted Pandurang as their son. Pandurang had two wives Smt. Kashibai and Smt. Chandrabhaga. No issue was born to the Pandurang form either of the wives and on 14-12-1944 he adopted his brother Shankar. The adoption was notified in the Kolhapur State Gazatte on 13-121945. On 25th June 1949 the partition is alleged to have taken place between Pandurang and his adopted son Shankar. On 1st June 1967 Pandurang died leaving behind his mother Radhabai, his two wives Smt. Kashibai and Smt . Chadrabhaga and, adopted son Shankar alias Dattatraya Smt. Radhabai( original plaintiff filed a suit for partition and separate possession of the properties, details of which were given in the plaint, and, according to her she had half share in the property and the remaining half share belonged to Smt. Kashibai and Smt. Chandrabhaga, two wives of Pandurang. The case set out but the original plaintiff was that Shankar alias Dattatraya has no interest in the property and was not entitled to any share since this adoption was not legal and valid. In the suit, the two wives of Pandurang viz., Smt. Kashibai and Smt. Chadrabhaga were impleaded as defendants Nos. 1 and 2 respectively, Shankar alias Dattatraya was impleaded as defendant No. 3 and one Rangrao Rajharam Patil who is alleged to have purchased some property from defendant No.2 was impleaded as defendant No. 4 of the plaintiff''s case has been resisted by the defendant Nos 2, 3 and 4 and according to tem the defendant No. 3 was validly adopted by Pandurang. A plea a of adverse possession was also set out by defendant No. 3 with the regard to R.S. No 183/2 and 225/7-B. The defendant No. 1 Smt. Kashibai one of the wives of Pandurang supported the plaintiff case.

The trial Court after trial decreed the plaintiff suit on 29th April 1978 by holding that plaintiff was entitled to partition and separate possession of the half share in the suit a land described in paragraph 1 of the plaint and defendant Nos. 1 and 2 may levy the decree in execution for their 1/4 the share each on payment of requisite court fees. The judgement and decree passed by trial court came to be challenged by defendant No.3 as well as by defendant No. 1 separately in Civil Appeal No 161/78 and Civil Appeal No. 158/78 separately before the Assistant Judge, Kolhapur and the appellate Court heard both the appeals together and the judgment and decree and dated 24th July 81 dismissed both the appeals and confirmed the judgment and decree passed by the trial court. The concurrent judgment and decree passed by the two courts below is under challenged in the second appeal at the instance of defendant No. 3.

Turning back to the question involved in the second appeal it may be observed that in the then Bombay State the rule of Hindu Law relating to person who may be lawfully taken in adoption to the effect that the he must not be a boy whose mother the adopting father could not have legally married was always restricted to the daughter''s son, sister son or his mother''s sister son. In Mallappa Parappa Hospeti Vs. Gangava Gangappa Hospeti, Division Bench of this court was considering whether the adoption of the father''s first cousin was valid under Hindu Law and the answer was affirmative. The Division Bench held that the doctrine of puttrachhayavham (reflection of a son) and virudh sambandh (improper relationship) are now confined to three categories only viz., (i) daughter''s son, (ii) sister''s son and (iii) mother''s sister''s. While reaching this conclusion the Division Bench relied upon two decisions of this Court in Ramchandra Krishna Joshi v. Gopal Dhondo Joshi : (1908) 10 BOM LR 948 , and Yamnava Govind Appaji Vs. Laxuman Bhimrao Kulkarni, . The view of this Court is consistent from Ramchandra''s case (supra) to cases subsequently viz. Mallappa Parappa Hospeti Vs. Gangava Gangappa Hospeti, , Gajanan Balkrishna Deshpande Vs. Kashinath Narayan Deshpande, Shripad Dattatraya Kamat Vs. Vithal Vasudevshet Parker, , and, other cases.

the Division Bench of this Court in Shripad Dattatraya Kamat Vs. Vithal Vasudevshet Parker, was dealing with the question whether under Hindu Law a husband''s brother can be validly adopted by a widow. The question thus was whether adoption of brother was permissible under Hindu Law and the Division Bench of this court held thus:

"This decision was followed in Ramkrishna v Chimnaji (4) and Gajanan Balkrishna v. Kashinath Nayayan (5) and if we were to hold in the face of those decisions that the adoption of the husband''s brother was invalid, we should be going contrary to the opinion expressed by so many of the judges of this Court in the case we have referred to.

But the question appears to have been conclusively settled by the decision of the Privy Council in Puttu Lal v Musammat Parbati Kunwar (1) where it was held that a Hindu widow making an adoption by virtue of her deceased husband authority could validly adopt her brother son. Reference was made to the decision of Mr. Justice Benerji in Jai Singh Pal Singh v Bijai Pal Singh (2) where is was pointed out that on this question as to whether a widow can lawfully adopt to her deceased husband a son of her own brother, Nanda Pandita in the Dattaka Mimansa extended to adoption the by females the rule of Hindu law that no one can be adopted as a son whose mother the adopter could not have legally married an extension which was not based upon the authority of any of the Smrities or institutes of sages, and their lordship said ( p. 555) :--

"As Banerji J. further pointed out in the same case the extension of the rule by Nanda Pandiat is not supported by any text of the ''Dattka Chandrika '' or by any of the texts of the Dattaka Chandrika'', or by any of the texts of sages Saunaka and Sakala from which most of the rule of the ''Dattaka Mimansa'' were deduced. It has not been shown to their Lordship that the extension by Nada Pandita to which they are referring has been accepted as the law in the India, at least, so far as the adoption by widows to their deceased husband are concerned."

7.However, in the present case admitted the parties were governed by the then law prevailing in erstwhile Kolhapur State. Then ruler of Kolhapur State had issued Wat-Hukuma of 1920 and the said law also contained codified law on the point of adoption applicable to Hindu subjects of kolhapur State. Chapter IV, S. 20 of the said Wat-Hukuma, 1920 on English translation which has been supplied by translator of this Court reads thus :

"Who is eligible for adoption

Any sons (boy)

Requisites of adoption

(ka) Whose natural mother is not related to the ascendants of the adoptive father.

(kha) and had his adoptive father been eligible to marry his natural mother in her maidenhood , then such a son;

(ga) irrespective of his age

(gha) may be married or have born children.

(da) or may be the eldest son of the natural father or;

(cha) may be the only son of the natural father. Despite this he is eligible to be the adopted son of the adoptive father.

Exception:

(1) In respect of the daughter son and;

(2) Sister''s son;

The restrictions or the possibility as mentioned in sub-section (Kha) above is not applicable.

Illustration:--

(Sub-section Ka)

(1) A and B are step brothers . After A''s death his widow adopts ''B''. This adoption is illegal.

(2) A is B'' real uncle. B''s widow adopts A -- This adoption is illegal.

(3) X is Y''s real maternal uncle. X''s widow adopts Y. This adoption is illegal.

Illustration:

(Of sub section ''Kha)

(4) The person ''A'' is the real brother of B''s wife after the death of B, as he did to have any issue . B''s wife adopts her brother A -- This adoption is legal."

According to the aforesaid law enacted by the then, Kolhapur State which was governing the adoption at the relevant time, one of the requisites of valid adoption of a boy was whose natural mother was not related to the ascendants of the adoptive father. If the brother is adopted by brother obviously natural mother of adopted son shall be related to the ascendant of the adoptive father. To put it straight, the natural mother of adopted son (brother) shall be wife of father (ascendant) of adoptive father (brother). I do not think that there is nay doubt whatever as to the meaning or I find no ambiguity in clause (ka) of Section 20 of Wata-Hukuma, 1920. The illustrations appended to clause (ka) leave no manner of doubt where it is stated that if A and B are step brother and after A''s death his widow adopts B, the adoption was illegal. Similarly it is illustrated that A is B''s real uncle and B''s widow adopts A then such adoption was also illegal. The adoption of brother thus was also illegal. The adoption of brother thus was not permissible and cannot be said to be in accordance with the requisites of adoption of laid down by Wa-thukuma. In view of the specific law enacted by erstwhile ruler to Kolhpaur State which was applicable to the parties at the relevant time, a brother could not adopt this brother as his son. Clause (ka) of Section 20, Chapter IV of Wa-thukuma of 1920, therefore, did not permit adoption of brother by brother and such adoption was not legal and valid and in this view implication and effect of clause (Kha) is not needed to be gone into. The contention of the learned counsel for appellant that the rule that he must not be a boy whose mother the adopted father could be have legally married has been restricted by various decisions of this Court to three categories viz. daughter''s son sister son and mother sister''s son did not help the Appellant Defendant No. 3 since under the Wa-thukuma of 1920 of the adoption of brother was not permissible and had no sanction of the existing law in the then Kolhapur State.

Mr. Pandit the learned counsel for the Appellant strenuously relied upon a Full Bench decision of this Court in Ramappa Vanappa Akale and Others Vs. Laxman Malyappa Akale, wherein the Full Bench observed thus:

"Incidentally we may add that what applies to these vat-hukums apples with the equal force to the rules and vat-hukums issued by the Kolhapur Government in the matter of Hindu Law. The main body of the rules of Hindu Law which are enacted in Kolhapur is based principally on the translation of an old edition of Sir Dinesh Mull''s Hindu Law published in 1919; and so the several important decisions which have since then substantially altered the earlier views in several branches of Hindu law cannot be applied by Courts administering Hindu law in Kolhapur. Government should consider whether it would not be expedient in the interest of justice to apply to Kolhapur the principles of Hindus law as they are administered in the rest of the State of Bombay ".

The said observations in Ramappa Akales a case were made entirely in different context. The Full Bench found the Wat Hukums were not artistically worded and presented difficulties in construction when it was seized of the question on the death of inam land-holder the lands reverted to State in view of Vat Hukums issued by the ruler of Kohlapur state. The observations made about Hindu applicable to Hindu subjects of Kolhapur State does not help the Appellant Defendant No. 3 and rather it shows that principles of Hindu Law as were administered in the Kolhapur State were different from the principles as were applicable and administered in the rest of the State of Bombay. The Full Bench thus suggested that government should consider whether it would not be expedient in the interest of justice to apply in the Kolhapur the principles of Hindu law as they are administered in the rest of the State of Bombay. The general observations made by Full Bench that the main body of the rules of Hindu Law which were enacted in Kolhapur is based particularly on the translation of old translation of Sir Dinshaw Mulla''s Hindu Law published in 1919 does not mean that Wa-thukuma of 1920 enacted by the then ruler of Kolhapur State, was the same Hindu law as of found in Sir Dinshaw Mull''s Hindu Law published in the year 1919. Rather section 20(ka) of Chapter IV of Wa-thukuma of 1920 referred to hereinabove clearly shows that law of adoption in Kolhapur State was distinct and different from the law applicable to the other parts of the region in State of Bombay.

In view of the discussion aforesaid , it can safely be held that in the erstwhile State of Kolhapur the adoption of the brother by brother was not permissible and legal and, therefore adoption of Shankar in the year 1944 by Pandurang was not legal and valid the two courts below, therefore, did not commit any error in holding that adoption of Defendant No. 3 was not valid and his adoption was illegal.

Having negative the contention of the learned counsel for the Appellant that that adoption of Defendant No. 3 was valid, the learned counsel sought to contend that the defendant No. 3 had become owner by adverse possession if it was held that his adoption was invalid. I do not find any merit in this contention of the learned counsel for Appellant . Firstly the second appeal has only been admitted only on the substantial question of law whether the adoption of Defendant No. 3 Appellant was valid in law? At the time of admission of second appeal, this court did not frame any other question. Presumably because the court did not think any other substantial question of law arising in the second appeal Sub section (5) of Section 100, C. P.C. provides a that though the appeal shall be heard on the question formulated but that shall not take away power of the Court to hear the appeal on another substantial question of law not formulated by it if , it is satisfied that the involves such question. A question of adverse possession is largely a question of fact. In the present case I am satisfied with the reasons recorded by two courts below that possession of defendant No. 3 over the land bearing R.S. No. 183/2 and 225/7-B was permissive and therefore question of adverse possession did not arise. This finding recorded by the Courts below is concluded on facts and does not give rise to any question of law, much less substantial question of law.

Second appeal, therefore, has no merit and it is dismissed with no order as to costs.

Appeal dismissed.