Bombay High Court
Balabai Tukaram Babar vs Mahadu Krishna Babar on 7 January, 1924
Equivalent citations: (1924)26BOMLR222, AIR 1924 BOMBAY 349
JUDGMENT Norman Macleod, C.J.
1. The only question of law that arises in this second appeal is whether the adoption of plaintiff No. 1 by Putlabai, the widow of Krishna, is valid. Its validity is questioned by defendant No. 1, the mother of Krishna, on the ground that the age of the adopted boy is greater than the age of the adoptive father Krishna. The adoption was effected by Putlabai, the widow of Krishna. But that circumstance does not affect the question of the validity of the adoption. She could not validly adopt, if Krishna could not have made the adoption on account of the plaintiff No.1 being older than himself.
2. The trial Court in this case has taken the view that such an adoption is invalid, while the lower appellate Court has accepted the view that the adoption is not invalid, though it is opposed to the Hindu sentiment, and to a rule which, though it has not the force of law, is recommendatory as to the propriety of the adoption. There is no express text directly bearing on this point, at any rate none has been cited to us. But it is urged on behalf of the appellant that it is a necessary inference from the provision that the adopted boy should be the reflection of a natural son. That no doubt is true, and the inference which is suggested also is undoubtedly a fair inference. Hut the question is whether it has the force of law in the sense that if that condition is not fulfilled, the adoption becomes invalid.
3. No decision is cited in support of this contention; and according to the observations in different cases, of which Mallappa Parappa v. Gangava (1918) I.L.R. 43 Bom. 209, s.c. 21 Bom. L.R. 17. is only an example, these various rules, which are deducible from the expression that the adopted son should be the reflection of a natural son, including the rule as to the age of the adopted boy, have been treated as recommendatory and not mandatory. The observations of Ranade J. in Gopal v. Vishnu (1898) I.L.R. 23 Bom. 250, which have been referred to in the judgments of the lower Courts, do not directly bear on this point, though the inference which is suggested on behalf of the appellant is referred to. It would appear, however, from the observations taken as a whole that the consideration as to the age limit would be a matter of recommendation, and not a positive rule of law.
4. It is quite true that the adoption of a boy who is older than the adoptive father is contrary to the recognised notions of Hindus as to adoptions, and to the fundamental idea of an adopted son. That is the reason why such adoptions are very rare. But having regard to the lines on which these rules relating to adoption have been interpreted by the Courts, it is difficult to hold that the consideration that the adopted boy should not be older than his adoptive father, can be treated as having the force of a prohibitive rule. We think that the learned Assistant Judge has taken a correct view as to the validity of this adoption, and that the contention of defendant No. 1 on this point must be disallowed. The decree for partition must, therefore, be accepted as correct.
5. It is, however, necessary to make provision for the maintenance of defendant No. 1, the widow of Tukaram, before she is dispossessed of any property. We, therefore, amend the decree by directing that adequate provision for the maintenance of defendant No. 1 should be made before the properties in suit are partitioned and possession given to the respective parties in pursuance of the partition decree. If the parties do not agree within a fortnight as to the amount of maintenance to be awarded to defendant No. I that question should be determined in execution. The amount of maintenance to be a charge on the properties to be partitioned. The appellant to pay the costs of respondent No. 1.