Bombay High Court
Ganesh Apparao vs Gurnath Yeshvant on 18 June, 1926
Equivalent citations: (1926)28BOMLR1188, AIR 1926 BOMBAY 575
JUDGMENT Madgavkar, J.
1. This is a suit by the plaintiff-respondent claiming to be adopted by Krishnabai, widow of Yelgurd, for a half share in the joint family property of which Yelgurd and his brother Ganesh, defendant-appellant, were co-parceners. The respondent had set up a partition between Yelgurd and the appellant, but it was held not proved in both the lower Courts.
2. In the trial Court no authority by Yelgurd in his life-time to his widow to adopt the respondent was set up, and the trial Court dismissed the suit, holding that the observations of their Lordships of the Privy Council in Yadao v. Namdev (1921) L.R. 48 I.A. 513 S.C. : 24 Bom. L.R. 609, did not overrule the decision of this Court in Shivbasappa v. Nilava .
3. The lower appellate Court, however, took a different view of the law. It distinguished the last case on the ground that the last co-parcener there had died before the adoption, and held that, although the estate was not vested in Krishnabai, her adoption of the respondent was valid.
4. This view of the law is sought to be supported in this Court for the respondent by the observations of their Lordships of the Privy Council in Pratapsing v. Agarsingji (1918) 21 Bom. L.R. 496, 505, P.C.
5. On the facts found by both the Courts the law is clear. Yelgurd and the appellant were joint and Yelgurd was joint at the time of his death with the appellant; and he had given no authority to his widow Krishnabai to adopt the respondent. From the fact that the adoption was within nine months and about nine days of Yelgurd's death, it is argued that the adoption being made within the ordinary period of gestation was, therefore, valid. But that is not the law. It has been settled since the decision in Ramji v. Ghamau (1879) I.L.R. 6 Bom. 498, F.B. that in the absence of authority by her deceased husband Yelgurd or the consent of the co-parcener, the appellant Ganesh, Krishnabai's adoption of the respondent gave the latter no right in the joint family property. And, in the recent Full Bench decision of this Court, in Ishvav Dadu v. Gajabai (1925) 29 Bom. L.R. 782, F.B., it was held that Yodao v. Namdev (1921) L.R. 48 I.A. 513 S.C. : 21 Bom. L.R. 609 did not overrule the law in Ramji v. Ghamau (1879) I.L.R. 6 Bom. 498 F.B. It follows that the view of the law of the trial Court was right, and that of the lower appellate Court was incorrect. The case of Shivbasappa v. Nilava (1922) 21 Bom. L.R. 1152 it may be observed was entirely different, being concerned with the adoption by a widow who was not a widow of the last male-holder. That adoption, it was held, was invalid. It has no application to the facts of the present case.
6. We allow the appeal, set aside the decree of the lower appellate Court, and restore the decree of the trial Court, dismissing the suit with costs throughout on the plaintiff-respondent.