Mukta Narahari vs Mukta Rajiah and Another

Vithal Rao Deshpande, J.—The facts out of which this reference to the Full Bench arises are as follows:

In order to understand the facts of the case it is necessary to give the following pedigree of the parties to the suit:

MUKTARAJIAH _______________________|_______________________ | | Posetti Kistanna ___ Pullamma | (died 1331F.) (Deft. 1) Narharl _________|________ (died on 21st Thir 1353 F,) (Appellant) | | | Bapu ___ Poshakka Rajiah Namdev (died 1328 F) (Deft. 3) (died 1342F.) (Deft. 2 adopted son)

The Appellant''s case is that the last male holder of the estate was Rajiah who died in the year 1342 F. After his death Pullamma, his mother succeeded to the estate of her own son. She made a will stating that her daughter-in-law, Poshakka, who was Defendant 3, had her husband''s permission to adopt & that she will be the owner of the property after her death. On hearing about this will the Appellant, Narhari, filed a suit for the cancellation of the will and for a declaration that he is the reversionary. This suit was decreed by the trial Court on 26-9-1938.

Pullamma and Poshakka appealed against this decree; but the appeal was dismissed on 18-6-1940. After the decree of the trial Court Pullamma without any permission by her husband to adopt & with an intention to deprive the Appellant of his right to the property of the deceased took Namdev, Defendant 2, in adoption and executed an adoption deed in his favour which is dated 25-1-1939.

The Appellant''s contention is that the statement in the adoption deed that Pullamma had permission to adopt in case Rajiah, the son, died is unless is false and that the Appellant gave them notice regarding such an adoption being invalid. Therefore he prayed for a declaration to set aside the adoption. The Defendants (Respondents) In their joint written statement mentioned that Pullamma had her husband''s permission to adopt and that the Appellant had consented to the adoption.

In support of this claim the Defendants produced six witnesses. The Appellant led no oral evidence in rebuttal. The trial Court decreed the suit holding that neither the permission by the husband to adopt nor the allegation of the Appellant having consented to the adoption was proved. The lower appellate Court upheld the finding of the trial Court as regards the permission to adopt but reversed the rending regarding the consent of the Appellant and allowed the appeal having held that such a consent was established from the deposition of the witnesses, Nos. 3 and 4.

Aggrieved by this judgment the present appeal was filed in this Court, which initially came up for hearing before a Division Bench which on 8-8-1951 ordered that the case be remanded to the trial Court for recording the evidence of the witnesses of the Plaintiff. After remand the statement of the Plaintiff was recorded and the file was returned.

During the pendency of the appeal Pullamma died and the Appellant filed an application to amend the plaint by adding the relief for possession of the suit property as he became entitled to it after the death of Pullamma. This application was allowed on 21-9-1954 and necessary amendments were made. Afterwards arguments were heard by the Division Bench which on 21-3-1955 referred the case to the Full Bench owing to the fact that it involved an important question of Hindu law.

There are three questions involved in this appeal, two pertaining to facts and one of law. The factual questions are (i) whether Pullamma had authority to adopt and (ii) whether the Appellant had consented to the adoption of Namdev, Defendant 2, and the legal question involved is (iii) whether in view of the existence of Poshakka, predeceased son''s widow, Pullamma''s power to adopt has come to an end. Before going to the factual questions we would like to deal first with the legal question.

The facts necessary to understand the contentions of both the parties regarding this question of Hindu Law lie in a short compass and are nearly admitted by both the parties. It is admitted that Pullamma is the widowed mother of Rajiah, the last male holder of the estate, who succeeded him. Plaintiff-Appellant is the reversionary. Pullamma succeeded Rajiah. After he died leaving his mother and Poshakka, his predeceased brother''s widow, Pullamma adopted Namdeo.

Now the contention of the Appellant is that as Poshakka, the predeceased son''s widow, is living, Pullamma''s power to adopt had come to an end. In support of this proposition learned advocate for the Appellant relies on several authorities which have been referred to by their Lordships of the Supreme Court in their judgment in Gumnath v. Kamalabai (S) AIR 1955 SC 200(A). On the other hand the advocate for the Respondent contends that mother''s power to adopt comes to an end in case the deceased son on whose death the succession opened dies leaving a son or a widow, and as Rajiah died without leaving any son or a widow, Pullamma''s power to adopt does not come to an end but revives and that the exist ence of the widow of the predeceased son does not ex tinguish the power of the wiaowed mother to adopt Reliance was placed on Anant Govind Ginde Vs. Dnyaneshwar Balkrishna Ginde, and Pandurang Bhau Balvadkar Vs. Changunabai, . We shall now consider these respective submissions.

The leading case on this question is that of AIR 1933 155 (Privy Council) , in which it has been held 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 son''s widow, the mother''s power is gone. But if the son dies himself sonless and unmarried, the duty will still be upon the mother and the power in her which was necessarily suspended during the son''s lifetime will revive.

The three propositions that the Privy Council laid down in that case may be summed up in these terms:

That the interposition of a grandson, or the son''s widow competent to continue the line by adoption brings the mother''s power of adoption to an end:

that the power to adopt does not depend upon any question of vesting or divesting of property; and

that a mother''s authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence. The rule so stated has been understood in different ways but it has now been conclusively settled by the Supreme Court in Gurunath alias Bhimaji Vs. Kamalabai, Kom Kenchangauda Nadgaudar and Others, . In that case Mahajan C.J. in summing up the law stated:

In other words the true rule is this; that son dies before attaining. competence and does not leave either a widow or 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 the authority to Anr. the mother can never take it.

After discussing the Privy Council decisions is Mt. Bhoobun Moyee Debia v. Ramkishore Acharja 10 Moo Ind App 279 (E), Padma Coomari Debi v. The Court of Wards 8 Ind App. 229 (F), Thayammal v. Venkatarama Aiyan 14 Ind App. 67 (G), Tarachurn Chatterji v. Suresh Chunder Mookerji 16 Ind App 166 (H), AIR 1933 155 (Privy Council); AIR 1935 95 (Privy Council) and AIR 1943 196 (Privy Council) , Mahajan CJ observed:

The power of the widow to adopt comes to an end by the interposition of a grandson or the son''s widow competent to adopt has become par 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 was further observed that:

It is too late in the day to say that there are no limitations of any kind on the widow''s 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 grand son. Hindu law generally and in particular in matters of inheritance, alienation and adoption gives to the widow powers 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 Widow''s power to make an adoption comes to an end by the interposition of a grandson or the son''s widow competent to continue the line by adoption.

In view of this authoritative pronouncement of the Supreme Court it is now settled that by the interposition of a son''s widow the power of the widowed mother comes to an end is not revived at any time.

Applying this dictum to the present case, the presence of Poshakka, the son''s widow, who is alive and interposing, it must be held that the power of the mother, Pullamma, to adopt had come to an end but it is argued that the son''s widow means the widow of the son who WHS the last male holder and not the widow of the predeceased son.

The learned advocate has not stated how the son''s death leaving a widow prior to that of the father makes any difference to the application of the clear principles enunciated by their Lordships of the Supreme Court. No direct case is available which would throw light on this question. There are two rulings of the Bombay High Court indirectly referring to this question.

In one of them, viz., Anant Govind Ginde Vs. Dnyaneshwar Balkrishna Ginde, it was held that the interposition of a widow of one of the two sons is not fatal to the mother''s power of adoption. The reason for this exception is given by their Lordships of the Bombay High Court as follows:

In fact in all the decisions bearing on this point, the owner died leaving a widow and one son only, and the question can arise in that case alone, because so long as the deceased has Anr. son living there is no necessity for the widowed daughter-in-law to perpetuate the father-in-law''s line by making an adoption and her mother-in-law''s power to adopt to her husband would terminate only when the duty for continuing the line of the father-in-law devolves on the daughter-in-law as heir of husband.

The other Bombay case is that of Pandurang Bhau Balvadkar Vs. Changunabai, . These cases were referred to and distinguished by the same High Court, in the case of Shamrao Babaji Lokare Vs. Bhimrao Kondi Lokare, . The case of Pandurang v. Changunabai (C) was decided by Chagla C.J. mainly relying on the case of Anant v. Dnyaneshwar (B) but in Sham Rao v. Bhimrao (L), the learned Chief Justice has distinguished Anant v. Dnyaneshwar (B) in these words:

The facts of that case were very peculiar. There a Hindu father had two sons and he died leaving those two sons and his widow. The elder son died leaving a widow and two days later the younger son died unmarried and the mother made an adoption, and the question was whether the adoption was good, and the view I took was that as the younger son had died without leaving a widow or a son, the mother''s power of adoption had not come to an end and she could, therefore, validly adopt the Plaintiff.

It will be noticed that at the date of the death of the younger son there was neither a widow either his or the elder brother''s, nor a grandson who could continue the male line, and it should also be noticed that so long as the younger son was alive there would be no question of the power of the widow of the elder son as far as the continuation of the line of the father was concerned Because the younger son was there to continue the line.

So these cases are distinguishable inasmuch as there was nobody existent to continue the line of the deceased, and that apart the reasons that as long as there is a son living the daughter-in-law of a predeceased son cannot adopt, can no longer be valid because even in an extreme case as in AIR 1943 196 (Privy Council) where though the adoption took place after the coparcenaries came to an end on the death of the last male holder it was held that the family cannot be at an end till 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.

But in this case there is the predeceased son''s widow to continue the line. Under such circumstances the Supreme Court''s dictum in Gurunath alias Bhimaji Vs. Kamalabai, Kom Kenchangauda Nadgaudar and Others, , that the interposition of the grandson or the son''s widow competent to continue the line by adoption brings the mother''s power of adoption to an end, applies, and, therefore, Pullamma cannot be said to be entitled to adopt as her power of adoption had come to an end.

In our view the test for determining whether the widowed mother''s power to adopt has come to an end is at the time when the death of the last of her sons takes place. If at that time there is living a daughter-in-law whether that daughter-in-law is of the last male holder or of the pre-deceased son her power to adopt will come to an end.

Thus, we are of the view that the power of the mother, viz., Pullamma had come to an end and she is not entitled to adopt. In view of this the other two questions need no elaborate discussion but as the (sic) case has been referred to this Bench, we shall deal with them also in brief.

Before dealing with the factual questions we must at the outset state that the additional evidence cannot be admitted as it was recorded before the examination of the evidence on record and before reaching a decision that the evidence as it stood disclosed a lacuna which the Court required to be filled up for pronouncing its Judgment.

The Supreme Court in the case of Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 has held that the appellate Court was not justified in admitting such additional evidence. Therefore, the question will be decided on the evidence already on the record. As regards the first question, viz., whether Pullamma had permission to adopt, both the Courts concurrently decided that such permission was not proved. Both the Courts have not believed the statements of the witnesses produced on behalf of the Defendants.

Further, the fact that Pullamma had made a will which was the subject-matter of the earlier suit itself supports the fact that there was no permission for her to adopt D.W. 2, Shande Dharma, D.W. 5, Venkatarajaram and D.W. 6, Sitaramrao are the witnesses, who are examined to prove the fact of permission having been granted. There are important discrepancies in their statements D.W. 2 states that Kistiah died 20 years ago but states that he gave permission to adopt seven year ago.

On the contrary D.W. 5 states that permission was given 20 years ago. The story told by the witnesses seems unnatural. D.Ws. 2, 5 and 6 are not reliable and they do not prove the fact of the permission. We see no reason to differ from the concurrent findings of both the. Courts below in this respect, and therefore, hold that permission is not proved.

In support of the contention that the Plaintiff consented to the adoption, the Defendants have examined two witnesses, D.W. 4, Maskahdi and D.W. 3, Venkat Rajiah. So far as D.W. 3 is concerned the Court has passed a remark that the witness is a partial one and is not reliable and the deposition of witness No. 4 is not such on which reliance can be placed. Further, the fact is that at the time when the consent is alleged to have been given there was a suit pending between the parties. The suit had ended against Defendant 1 and in favour of the Appellant. The relations between them were not cordial and the consent in these circumstances was highly improbable. In view of this fact the reasoning given by the lower appellate Court in holding that the consent is proved is incorrect and in our opinion the consent is not proved in this case.

In view of these circumstances we are of the opinion that the appeal must be allowed. Accordingly the appeal is allowed, and the judgment of the original Court restored setting aside that of the lower appellate Court. Having regard to the circumstances of this case it will be just if the parties do bear their own costs.