# Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil

- **Citation:** [1955] 1 S.C.R. 1135
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 105 of 1953
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/council-in-anant-bhikappa-patil-v-shankar-ramchandra-patil-315
- **Pages:** 16

## Headnote

-
' '
:s.c.R.
SUPREME COURT REPORTS
1135
227. A.s a result of our decision, the
Election Commis-
·sion will now proceed to hold a fresh election.
This appeal must accordingly be allowed,
the decisions of the
High Court and the
Tribunal
quashed
.and the whole election set aside. The parties will bear
their own costs throughout.
Appeal allowed.
GURUNATH alias BHIMAJI
ti.
KAMALABAI, KOM KENCHANGAUDA
NADGAUDAR AND OTHERS.
:[MEHR CHAND MAHAJAN C.J., MuKHERJEA, S. R. DAs,
VIVIAN BosE, BHAGWATI, JAGANNADHADAS and
VENKATARAMA AYYAR JJ.]
Hindu Law-Adoption--Widow's power to adopt-When such
power terminates.
It is well-settled according to Hindu
Law that
a widow's -
power to adopt comes to an end by the interposition of -a grandson
or the son's widow competent to continue the line by adoption.
The mother's authority to adopt is not extinguished by the mere
fact that her son had attained ceremonial competence.
The power to adopt does not depend upon any question of vesting or divesting of property.
The
decision
of
the
Judicial
Committee
of the
Privy
Council in Anant Bhikappa Patil v.
Shankar Ramchandra Patil
(L.R. 70 I.A. 232) is not sound in so far as it relates to the properties inherited from collaterals prior to adoption. In respect of such
properties the adopted son can lay no claim on the ground of relation back.
Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1
S.C.R. 1), followed.
Amarendra
Mansing v. Sanatan ( [ 1933] L. R. 60 I.A. 242),
explained,
Anant Bhikappa Patil v. Shankar Ramcliandra Patil ([1943]
LR. 70 I.A. 232), not relied on in part.
Bhoobun Moyee v. Ram Kishore ([1865] 10 M.I.A. 279); Pudma
Coomari v. Court of Wards ([1881] L.R.81.A.229); Thayammaland
Kuttisami Aiyan v. Venkatarama Aiyan ([1887] L.R. 14 I.A. 67);
Tarachum v. Suresh Chunder ( [ 1889] L.R. 16 I.A. 166); Ramkrishna
'I954
Hari Vishnu
Karnath
v.
Syed Ahmad
lshaque and Ot/ws.
Venkatarama
Ayyar J·
Dtcemb..- 10.
1954
Gurunath
V•
Kamalabai.
1136
SUPREME COURT REPORTS
(19551
Ramchandra v. Shamrao
([1902]
l.L.R. 26 Born. 526);
Madana
Mohana v. Purushothama Deo ([1918] L.R. 45 I.A. 156); Vijaysingji
v. Shivsangji ([1935] L.R. 62 I.A. 161); Bapuji v. Gangaram ([1941J
l.L.R. Nagpur 178); and Prem fagat Kuer v. Harihar Bakhsh Singh
([1945] l.L.R. 21 Lucknow 1), referred to.
C1v1L
APPELLATE
JuR1smcTioN:
Civil Appeal No.
105 of 1953.
Appeal by Special Leave granted by this Court's
Order dated the 24th September, 1951 from the
Judg.
ment and Decree dated the 2nd
day of
September
1949 of the High
Court of Judicature at
Bombay in
Appeal No. 274 of 1948 from Original
Decree
ansmg
out of the Decree dated the 30th day of
July, 1946 of
the Court of
Civil Judge, Senior Division at Hubli in
Special Suit No. 56 of 1944.
K. R. Bengeri and Sardar
Bhadur for the appellant.
S.
B.
fathar and I. N. Shroff for
respondents
Nos. 3, 4 and 5.
1954.
December 10.
The Judgment of the Court
was delivered by
MEHR
CHAND
MAHAJAN C. J.-This appeal
ra1Ses
a question of importance "whether a widow
can exercise a power of adoption conferred on her or possessed
by her at any time during her life irrespective of any
devolution of property or changes
in
the family
or
other
circumstances
and
even after
a grandson has
come on the scene but
has subsequently died
without
leaving a widow or a son".
The situation in which this question arises can properly be appreciated
by
reference to
the
following·
genealogy:
'y
..
r
-
'
' •
' ·v
Dyamappa
I
-------
'
Kalasappa
I
Krishtarao
Radhabai = Gangabai
(Deft. 2)
(Deft. l)
(Senior widow)
(Junior widow)
---~I ____
/ Gurunath
!
J
•
(Appellant adopted
Kamalabai
Yamunabai
J
by Gangabai on
(Resp. l)
(Resp. 2)
I
18-11-53)
Dattatraya (son)
(died 1913)
=Sundarabai (died after
her husband in 1913)
I
I
(
Kalasappa
(predeceased
Datta tra ya)
I
Jagannath
(died 1914)
I
I
I
Girimaji
I
,
Hanamanta
i -,
Malhar
Ganesh
(Resp. 5)
(Resp. 3)
I
I
Venkate1h Hanamant
(Resp. 4)
(Resp. 6)
1954
Gurnnath
,.
Kamalabai.
.Ma!iajan C.J.
1138
SUPREME COURT REPORTS
F19"55]
Gurunath, the p

## Text

-
' '
:s.c.R.
SUPREME COURT REPORTS
1135
227. A.s a result of our decision, the
Election Commis-
·sion will now proceed to hold a fresh election.
This appeal must accordingly be allowed,
the decisions of the
High Court and the
Tribunal
quashed
.and the whole election set aside. The parties will bear
their own costs throughout.
Appeal allowed.
GURUNATH alias BHIMAJI
ti.
KAMALABAI, KOM KENCHANGAUDA
NADGAUDAR AND OTHERS.
:[MEHR CHAND MAHAJAN C.J., MuKHERJEA, S. R. DAs,
VIVIAN BosE, BHAGWATI, JAGANNADHADAS and
VENKATARAMA AYYAR JJ.]
Hindu Law-Adoption--Widow's power to adopt-When such
power terminates.
It is well-settled according to Hindu
Law that
a widow's -
power to adopt comes to an end by the interposition of -a grandson
or the son's widow competent to continue the line by adoption.
The mother's authority to adopt is not extinguished by the mere
fact that her son had attained ceremonial competence.
The power to adopt does not depend upon any question of vesting or divesting of property.
The
decision
of
the
Judicial
Committee
of the
Privy
Council in Anant Bhikappa Patil v.
Shankar Ramchandra Patil
(L.R. 70 I.A. 232) is not sound in so far as it relates to the properties inherited from collaterals prior to adoption. In respect of such
properties the adopted son can lay no claim on the ground of relation back.
Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1
S.C.R. 1), followed.
Amarendra
Mansing v. Sanatan ( [ 1933] L. R. 60 I.A. 242),
explained,
Anant Bhikappa Patil v. Shankar Ramcliandra Patil ([1943]
LR. 70 I.A. 232), not relied on in part.
Bhoobun Moyee v. Ram Kishore ([1865] 10 M.I.A. 279); Pudma
Coomari v. Court of Wards ([1881] L.R.81.A.229); Thayammaland
Kuttisami Aiyan v. Venkatarama Aiyan ([1887] L.R. 14 I.A. 67);
Tarachum v. Suresh Chunder ( [ 1889] L.R. 16 I.A. 166); Ramkrishna
'I954
Hari Vishnu
Karnath
v.
Syed Ahmad
lshaque and Ot/ws.
Venkatarama
Ayyar J·
Dtcemb..- 10.
1954
Gurunath
V•
Kamalabai.
1136
SUPREME COURT REPORTS
(19551
Ramchandra v. Shamrao
([1902]
l.L.R. 26 Born. 526);
Madana
Mohana v. Purushothama Deo ([1918] L.R. 45 I.A. 156); Vijaysingji
v. Shivsangji ([1935] L.R. 62 I.A. 161); Bapuji v. Gangaram ([1941J
l.L.R. Nagpur 178); and Prem fagat Kuer v. Harihar Bakhsh Singh
([1945] l.L.R. 21 Lucknow 1), referred to.
C1v1L
APPELLATE
JuR1smcTioN:
Civil Appeal No.
105 of 1953.
Appeal by Special Leave granted by this Court's
Order dated the 24th September, 1951 from the
Judg.
ment and Decree dated the 2nd
day of
September
1949 of the High
Court of Judicature at
Bombay in
Appeal No. 274 of 1948 from Original
Decree
ansmg
out of the Decree dated the 30th day of
July, 1946 of
the Court of
Civil Judge, Senior Division at Hubli in
Special Suit No. 56 of 1944.
K. R. Bengeri and Sardar
Bhadur for the appellant.
S.
B.
fathar and I. N. Shroff for
respondents
Nos. 3, 4 and 5.
1954.
December 10.
The Judgment of the Court
was delivered by
MEHR
CHAND
MAHAJAN C. J.-This appeal
ra1Ses
a question of importance "whether a widow
can exercise a power of adoption conferred on her or possessed
by her at any time during her life irrespective of any
devolution of property or changes
in
the family
or
other
circumstances
and
even after
a grandson has
come on the scene but
has subsequently died
without
leaving a widow or a son".
The situation in which this question arises can properly be appreciated
by
reference to
the
following·
genealogy:
'y
..
r
-
'
' •
' ·v
Dyamappa
I
-------
'
Kalasappa
I
Krishtarao
Radhabai = Gangabai
(Deft. 2)
(Deft. l)
(Senior widow)
(Junior widow)
---~I ____
/ Gurunath
!
J
•
(Appellant adopted
Kamalabai
Yamunabai
J
by Gangabai on
(Resp. l)
(Resp. 2)
I
18-11-53)
Dattatraya (son)
(died 1913)
=Sundarabai (died after
her husband in 1913)
I
I
(
Kalasappa
(predeceased
Datta tra ya)
I
Jagannath
(died 1914)
I
I
I
Girimaji
I
,
Hanamanta
i -,
Malhar
Ganesh
(Resp. 5)
(Resp. 3)
I
I
Venkate1h Hanamant
(Resp. 4)
(Resp. 6)
1954
Gurnnath
,.
Kamalabai.
.Ma!iajan C.J.
1138
SUPREME COURT REPORTS
F19"55]
Gurunath, the plaintiff, claims that he was adopted
in 1943 by Gangabai, widow of Krishtarao.
Krishtarao
died in 1890, leaving him surviving two widows Radhabai and
Gangabai and
a son
Dattatraya.
Dattatraya
died in 1913 leaving him surviving a widow
Sundarabai and a son
Jagannath.
Sundarabai
died
shortly
after Dattatraya while Jagannath died in the year
1914.
After an interval of about 30 years since
his
death, it is alleged that
Gangabai who survived
both
her son, and grandson adopted the plaintiff,
and thus
raised the problem which we are called upon to solve.
On the 15th of March, 1944 the appellant instituted .
the suit out of which this appeal
arises in forma pauperis on the allegation that he was the adopted son
of Krishtarao and adopted to him by Gangabai, his
junior widow, and as such was entitled to the possession of his adoptive father's properties comprised
rn
the suit.
He also claimed a declaration regarding
the
amount of
compensation
money payable to the plaintiff's family for the land acquired by Hubli
MuniCipality.
The defendants who are the sons and grandsons of the
first
cousin of Krishtarao disputed
the
plaintiff's adoption on the ground
that
Gangabai's
power to adopt was
extinguished
when
Dattatraya
died in 1913, leaving "behind him a widow
Sundarabai
and a son
Jagannath who could continue
the family
line.
Gangabai in her
written
statement
supported
the plaintiff's claim and asserted that the senior
widow
Radhabai had given consent to her adopting the plaintiff.
The trial judge upheld the
defendant's
contention
and dismissed the plaintiff's suit. The factum of the
plaintiff's adoption was
however upheld, and it was
·further held that Radhabai did not give
her
consent
to the adoption.
On appeal this decision was affirmed
by the
High Court and it was held that
Gangabai's
power to adopt came to an end at the time when her
.son died leaving a son and a widow to continue
the
family line.
No finding was given on
the question
whether Radhabai had .given her consent to the adoption. That perhaps would have
been the simplest way
to end the dispute.
Against the decision of the
High
..
r
..
·~
,f
..
'
-
S.C.R.
SUPREME COURT REPORTS
1139
Court this appeal in f orma pauperis is now before us
by special leave.
The only question canvassed in the appeal is in respect to
the
validity of the
plaintiff's adoption.
It
was contended that Hindu Shastric Law itself sets no
limit to the exercise of the widow's power of adoption
once she has acquired that
power or is
possessed of
it, and that being so, the
power can be exercised by
her during her life-time when necessity arises
for
the
exercise of it for the purpose of continuing the line of
her husband. On the other hand, it was argued
that
though
Hindu Shastric Law itself sets no limit to the
exercise of the power, yet it has long been
judicially
recognised that the power is not an
unlimited
and
absolute one,
and that it
comes to an
end when
another heir has come on the scene and he has passed
on to another the duty of continuing the line.
The
question at what point of time the widow's duty
of
continuing the line of the husband comes to an end has
been the subject-matter of a number of decisions
of
Indian High Courts and of the Privy Council and the
point for our consideration is whether the limits laid
down in these decisions have been
arbitrarily
fixed
and are not based on sound principles and should be
reviewed by us.
A brief reference to the different decisions
of the
Privy
Council is necessary for a proper
appreciation
of the state of law on
this subject at
the
present
moment.
The two leading cases on this point are the decisions of the Privy Council arising out of the adoption
made by Shrimati Chundrabullee
and decided in 1876
and 1878.
The judgment in the first of these cases,
i.e. in Bhoobun
Moyee v. Ram Kishore(1)
was delivered by Lord Kingsdown.
What happened there was
that one Gour Kishore died leaving a son Bhowanee
and a widow, Chundrabullee, to whom he gave
authority to adopt in the event of
his son's death.
Bhowanee married and died at the age of 24 without
issue, but leaving him surviving his widow
Bhoobun
(1) [1865] IO M.I.A. 279.
1954
.Gurunath.
V•
Kamalahai
Mahajan C·J·
1954
Gurunath
V•
Kamalabai.
Mahajan c. J·
1140
SUPREME COURT REPORTS
[1955]
Moyee.
Chundrabullee
then
adopted
Ram
Kishore.
Ram Kishore brought a suit against
Bhoobun
Moyee
for the recovery of the estate.
The Privy Council held
that the claim of Ram Kishore failed on the ground
that even if he had been in existence at the death
of
Bhowanee,
he
could not displace
the widow of the
latter.
It was further held "that at the
time
when
Chundrabullee professed to exercise her power of adoption, the power was
incapable
of execution
on the
ground that Bhowanee had married and left a widow
as his heir".
The following quotation
from the judgment of Lord
Kingsdown may be cited as indicating
the reasons for the decisions :
"In this case,
Bhowanee Kishore had lived to an
age which enabled him to perform-and
it is to be
presumed
that he had performed-all
the
religious
services which a son could perform for a father.
He
had succeeded to the ancestral
property as heir; he
had full power of disposition over it; he might
have
alienated it; he might have adopted a son to succeed
to it if he had no male issue of his body. He could
have defeated every intention which his father entertained with respect to the property.
On the death of Bhowanee Kishore, his wife succeeded as heir to him and would have equally succeeded in that character in exclusion of his brothers,
if he had any. She took a vested estate, as his widow,
m the whole of his property. It would be singular if
a brother of Bhowanee
Kishore, made such by adoption, could take from his widow the whole of his property, when a natural-born brother could have
taken
no part. If Ram Kishore is to take any of the ancestral property, he must take all he takes by substitution for
the
natural-born son, and not jointly
with
him ...... The question is whether the estate of his son
being unlimited, and that
son having married
and
left a widow his heir, and that heir having acquired a
vested estate m her husband's property as widow, a
new heir can be substituted by adoption
who
1s to
defeat that estate, and take as an adopted son what
a legitimate son of Gour Kishore would not h:ave
taken.
y
" '
•
..
...
..
-
~·
'
S.C.R.
SUPREME COURT REPORTS
1141
This seems contrary to all reason
and to all the
principles of Hindoo law, as
far as we can collect
them ..... .
If Bhowanee
Kishore had
died
unmarried,
his
mother, Chundrabullee Debia, would have
been
his
heir, and the question of adoption would
have stood
on quite different grounds.
By exercising
the
power
of adoption,
she
would have divested no estate
but
her own, and this would have brought the case
withjn the ordinary rule; but no case has been
produced,
no decision has been cited from the
Text-books, and
no principle has been stated to show that by the mere
gift of a power of adoption to a widow, the estate of the
heir of a deceased son vested in
possession,
can
be
defeated and divested".
In the result the suit of Ram Kishore was dismissed.
After the deaths of Bhoobun Moyee and Chundrabullee, Ram Kishore got possession
of
the property
under a deed of relinquishment executed in 1869 in
his favour by Chundrabullee, who herself had
entered into possession of the property
as mother and next
heir of Bhowanee Kishore after the death of Bhoobun
Moyee in 1867.
If Ram Kishore's adoption
was good
he was undoubtedly the next heir to the property.
A
distant
collateral
however
claimed
the
estate
on
the ground that his adoption
was invalid.
The Privy
Council then held that "upon the vesting of the estate
in the widow of Bhowanee, the power of adoption
of
Chundrabullee was at an end and incapable of execution" and that
Ram
Kishore had therefore
no title.
This was the decision in Padma Coomari v. Court
of
Wards( 1 ) wherein a second effort to maintain the validity of his adoption by Chundrabullee was
made
but
without
success.
The High Court in
its
judgment
in Padma Coomari's case( 1 ) remarked that the decision
in Bhoobun Moyee v. Ram Kishore(2) did not decide
that Chundrabullee could not adopt on the extinction
of the issue either of natural-born son or of the first
to be adopted son, and that if Chundrabullee
had on
the
death
of
Bhoobun
Moyee made the
adoption
and so divested her own
estate,
there
would
be
(1) (1881] L.R. 8 I.A. 229.
(2) [1865] 10 M.I.A. 279.
Gurunath
V•
Kamalabai.
Mahqjan C•J•
1954
Gurunath
. V•
Kamalabai.
Mahajan C·J·
1142
SUPREME COURT REPORTS·
[19551·
nothing in the judgment
of the
Privy
Council and·
nothing in the law to prevent her doing that which
her husband authorised her to do, and
which would
certainly be for his spiritual benefit, and for that of
his ancestors and even of
Bhowanee
Kishore.
The
learned Judges of the High Court proceeded
then to.
observe as follows :
"With all
respect,
therefore.
we
1magme
that
Lord Kingsdown must have
said by inadvertence, in
reference to the idea of adopting a son to the
great
grandfather of the last taker, that at
that time 'all
the spiritual purposes of a son, according to the lar-.
gest construction of them, would have been satisfied';
and again,
Bhowanee
Kishore had lived to an age
which enabled him to perform, and it is to be presumed that he had performed, all the
religious
services which a son could perform. for a father. There is.
really
no time at which
the
performance of these
services is finally completed, or at which the necessity·
for them comes to an end".
To this Sir Richard
Couch, who
delivered the judg,.
ment of the
Privy
Council, gave a
very
emphatic
answer in these terms :
"The substitution of a new heir for the widow
was no doubt. the
question to be decided,
and such,
substitution might
have been
disallowed,
the · adop-·
tion being held valid for all. other purposes, which is.·
the view that the lower Courts
have
taken
of the
judgment, but their Lordships do not think
that this
was intended.
They consider the decision to be that,.
upon the vesting of the estate in the widow
of Bhowanee, the power of adoption was at an en~; and in-.
capable of execution.
And if the question
had come·
before them without any previous decision
upon
it,.
they would have been of that opinion.
The adoption.
intended by the deed of permission was for the sue~.
cession to the zemindary and other property, as well.
as the
performance of religions services; and the vesting of the estate iq. the widow, if riot in
Bhowanee
himself, as the son and heir of his father, was a proper limit to the exercise of the power".
The question of
limitations upon the power of the
·l
"" ,. .} ..
I
•
.•
r
~
~
)'
"'
.. ..
-
S.C.R.
SUPREME COURT REPORTS
1143
widow to
adopt
thus stated in the
Chundrabulle
series· of decisions was again affirmed
by the
Judicial
Committee in T hayammal and
Kuttiswami
Aiyan v.
Venkatarama Aiyan(t) decided in 1887 and in Tara.
churn v. Sursh Chunder(2) 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( 3 ). 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 Full Bench,
enunciated the
principle
in these words:
"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".
This principle was approved and applieJ by the Judicial Committee in
Madana Mahana v.
Purushothama
Deo( ~ ) in these words :
"Their
Lordships
are
in
agreement with
the
principle laid down in the judgment of the Full Court
of Bombay as delivered by the
learned
judge,
and
they are of opinion that, on the facts of the present
~case, the principle must be taken as applying so as to
have_ brought
the
authority to adopt
conferred
on
Adikonda's widow to an end when Brojo, the son she
originally adopted, died
after
attaining
full
legal
capacity to continue the line
either by
the birth of
a natural-born son or by the adoption to him of a son
by his own widow".
The 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( 5 )
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
(1) [1887] L.R. 14 I.A. 67.
(2) [1889] L.R. 16 I.A. 166.
(3) [1902] I.L.R. 26 Born. 526.
(4) [1918] L.R. 45 I.A. 156.
.
(5! [1933] L.R. 60 I.A. 242.
17-89 S. C. India/59
<1954
Gurunath
.
v.
Kamalabai.
Mahqjan C. ].
1954
··-
Cwunath
v.
Kamalabai.
Mahajan C. J,
.1144
SUPREME COURT REPORTS
[1955]
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
father's 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 son's 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' opm1on, 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
father's duty has 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.
It can, they
think,
hardly
be doubted
that
m
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
.(if property a mere accessory to it.
Having
regard to
this well-established
doctrine
a.s 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
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S.C.R.
SUPREME COURT REPORTS
1145
-) 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.
r
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
observed as follows :
judgment their
Lordships
"It being clear upon the decisions above referred
to that the interposition of a grandson, or the son's
widow, brings the mother's 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 son's widow, the mother's 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 son's 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
,.i
grandson and
his widow all died out.
Reliance
was
also placed on the passage
already
cited
in
which
1954
Gurunath
v.
Kamalabai,
Mahajan C.J.
1954
l:fa/wjan C. J.
1146
SUPREME COURT REPORTS
[1955)
their Lordships laid emphasis on the proposition that· y·
the substitution of a son of the deceased for spiritual
reasons is the essence of the thing, and the consec
quent 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 widow's )
power in
the
Chundrabullee
series
of decisions
no
longer survived, in view of the ratio in Amarendra's
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
y
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
son's widow,
the
mother's
power is gone".
In the words
_of
Chandavarkar,
J.
affirmed by the Judicial Committee in Madana Mohana
v. Purushothama Deo( 1 )
"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
(1) [19i8] L.R. 45 LA. _156.
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S.C.R.
SUPREME COURT REPORTS
1147
'y retains her ·authority and is still under a duty to continue the line cannot be sustained.
The three propositions that the
Privy Council laid
down in Amarendra's case
therefore
cannot now be
,
questioned.
These propositions
may be summed
up
in these terms:
'i ,
(1) That the interpos1t10n
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;
(2) that the power to adopt does not depend upon any question
of vesting or divesting of property;
and
(3) that a mother's authority to adopt is not extinguished by the mere fact that her son had attained
ceremonial competence.
The rule enunciated m
Amarendra's
case was subsequently applied in Vijaysingji v. Shivsangji (1) and was
again restated and reaffirmed as a sound
rule enunciating the limitations on the widow's power to adopt
in Anant
Bhikappa
Patil v.
Shankar
Ramchandra
Patil(2).
One of the propositions enunciated· in this
decision
was not accepted by this court in Shrinivas
Krishnarao Kango v. Narayan Devji Kango1 (9 ), but that
apart no doubt was cast in this decision on the above
rule.
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 son's
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 m the several judgments.
It is well
known that in the absence of any dear
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
(1) [1935] L.R. 62 I.A. 161.
(2) [1943] L.R. 70 I.A. 232.
(3) [I 955] I S.C.R. 1.
Gurunalh
"·
Kamalabai
Mahajan c. J.
1954
Gurunath
v.
Kamalabai
Mahajan C. ].
1148
SUPREME COURT REPORTS
[1955]
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 to 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 , Y
to adopt, i.e. that
she cannot
adopt m the presence
of a son, grandson or great grandson.
Hindu Law
generally and m particular in matters of inheritance, ·
alienation and adoption gives to
the widow
powers
•
of a limited character and
there is
nothing
m 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.
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 m Amarendra's case had no application to the situation that has arisen in the present
case and that on the death of the grandson the widow's
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(').
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 son's widow.
Reliance for this
proposition
curiously
enough
was
placed on the decision of the
Judicial
Committee in
Amarendra's case as appears from the following quotation from that judgment :
"If the
observation
quoted
from
Amarendra
Mansingh v. Sanatan Singh(')
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
(I) [1941] l.L.R. Nagpur 178.
. (2) [1933] l.L.R. 12 Pat. 642. 658.
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S.C.R.
SUPREME COURT REPORTS
1149
words "and can never be revived" quoted from
RamKrishna v. Shamrao(1 ).
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 C's power revives so the death
of
D removes her interposition and so C's 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 Amarendra' s case.
The reason for the rule in Amarendra's
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 son's widow,
the mother's 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
Bapuii v.
Gangaram(2) was erroneous.
The second
decision to which reference
wa~ made is a decision of
the Lucknow
Court reported in Prem Jagat
Kuer v.
Harihar Bakhsh Singh( 3 ).
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.
(1) [1902] I.L.R. 26 Born. 526.
(2) {1941] I.LR. Nag. 178.
(a) (1945] i.L;R. 21 Luck. 1.
1954
Gurunath
v.
Kamalabai
Mahajan C. J,
1954
Guhinath
v .
. Kamalabai
¥ahajiin" c .. J.
1954
December 14
1150
SUPREME COURT REPORTS
[1955]
·For the reasons given above, this appeal
fails and
jg dismissed, but in the
circumstances
of the case · we
will make no order as to costs.
Appeal dismissed.
H. N. RISHBUD AND INDER SINGH
tJ.
THE STATE OF DELHI
(And connected Appeals)
[MuKHERJEA, VIVIAN. BosE and JAGANNADHAMS JJ.]
Prevention of Corruption Act, 1947 (II of 1947), s. 5(4) .and protJiso to s. 3-Prevention of Corruption (Second Amendment) Act, 1952
(LIX of 1952), s 5-A-Whether mandatory or directory-Cognizance
taken on a police report vitiated by a breach of mandatory provisions
.,-Legal effect thereof.
Held, that s. 5(4) and proviso to s. 3 of the Prevention of Corruption Act, 1947 (II of 1947) and the corresponding s. 5-A of the
Prevention of Corruption (Second
Amendment) Act, 1952 (LIX of
1952) are mandatory and
not directory and that an investigation
Conducteq in violation thereof is illegal.
If cognizance is in fact taken on a police report in breach of a
mandatory provision relating to investigation, the resul~ which fol·
low cannot be
set aside
unless the illegality in
the investigation
c.an be sh.own to have brought about a iniscarriage of justice.
It is well-settled · that an· illegality committed in the course of
an investigation does not affect the competence and the jurisdiction
of the court for trial and where cognizance of the case has in fact
been taken and the case has proceeded to termination the invalidity
of the preceding
investigation does
not vitiate the
result unless
miscarriage of justice has been caused thereby.
When
any breach of
thi!
mandatory provisions relating to
irivestigation is brought to the notice of the Court at an early stage
of the trial the Court will have to consider the nature and _extent of
the violation and pass appropriate orders for such reinvestigation as
thay be called for, wholly
or partly, and by such officer as it con·
s~ders appropriate with reference to the requirements of s. -5-A of the
Prevention of Corruption (Second Amendment) Act, 1952.
·. Liverpool Borough Bank v. Turner ( [ 1861) 30 L.J. Ch. 379),
Prabhu v. Emperor (A.LR. 1944 P.C. 73) and Lumbhardar Zutshi
v. The King (A.1.R. 1950 P.C. 26), referred to.
. CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeals Nos. 95 to 97 and 106 of 1954.
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