Housabai And Others v. Jijabai Baba Powar And Others

1. This is an appeal against the appellate Judgment dated 31st December, 1961 of the learned District Judge, Satara. The appeal was originally filed by the three Defendants in the suit from which the present appeal arises. Defendant No. 1 died during the pendency of this appeal and his heirs and legal representatives were joined as respondents. 2 to 7. The appeal was dismissed against the respondent No. 6 for want of prosecution. The respondents 2 to 5 and 7 have not appeared. Respondent No. 1 is the original plaintiff.

2. The dispute is about three properties. They formed a part of the estate of one Shivaba who died in or around 1920. He was succeeded by his son Baba who died leaving him surviving his widow Goja. Goja alienated three of the properties of which her late husband Baba was the full owner. One of the properties was sold on 2nd May, 1942 to Defendant No. 1, another on 4th January, 1943 to defendant No. 2 and a third on 23rd March, 1943 to Defendant No. 3. After these alienations she adopted the plaintiff as a son to her husband on 22nd April, 1959. Thereafter she died. On 19th September, 1960 the plaintiff as such adopted son filed in the court of the learned Civil Judge, Junior division, Karad, the suit from which the present appeal arises challenging the three alienations as being without legal necessity. The defendants denied the adoption and further contended that the plaintiff was in any case past the age of fifteen years on the date of his adoption and therefore by virtue of Section 10 of the Hindu Adoptions and Maintenance Act, 1956, the adoption was invalid. They further contended that as these properties had vested in them prior to the adoption by virtue of proviso (c) to Section 12, the plaintiff could not divest them. They further pleaded that there was legal necessity for the alienations by Goja.

3. The learned trial Judge held that there was a custom in the community of Goja to adopt a boy who was more than fifteen years of age at the date of adoption and therefore under Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, the adoption was valid. He held that fact of adoption proved. The learned trial Judge also held that the alienations by Goja were for legal necessity and were for consideration and were bona fide. He also held that notwithstanding the proviso (c) to Section 12, the plaintiff was entitled to sue. Having come to the conclusion that the alienations were for legal necessity, the learned trial Judge dismissed the suit Against the said decision, the plaintiff appealed to the District Court at Satara.

4. The learned District Judge held that there was a custom in the community of Gaja whereby a boy above 15 years of age could be validly adopted. He further held that proviso (c) to Section 12 did not stand in the way of the plaintiff. He, however, reversed the finding of fact as to the legal necessity and held that the legal necessity was not proved. In the result, he allowed the appeal and set aside the alienations subject to repayment of certain small amounts of consideration to the alienees. Against the said decision, the defendants, who are the alienees, have filed the present appeal.

5. The first point taken before me by Mr. Shrikhande on behalf of the appellants is that the legal necessity for the alienations should be held to have been proved. I am afraid that the finding of fact to the contrary of the District court is binding upon me and in a second appeal it is not open to the appellants to challenge it. This contention must therefore be rejected.

6. The second contention taken on behalf of the appellants is that the custom or usage applicable to the parties which would permit persons who have completed the age of 15 years being taken in adoption has not been proved and, therefore, the adoption is void under Section 10 of the Hindu Adoptions and Maintenance Act In the judgment of the learned District Judge reliance for proving the custom has been placed on two instances one of 1942 and another of 1948 and certain oral evidence. These instances may not be sufficiently ancient to establish a custom. But what Section 10 c(iv) of the Hindtt Adoptions and Maintenance Act, 1956, talks of is not only custom, but also usage. The instances and the evidence would be sufficient to establish a usage. However, this sufficiency of evidence for establishing a custom or usage loses all importance in territories which were formerly part of State of Bombay, such as Satara District. Even prior to the passing of the Hindu Adoptions and Maintenance Act in 1956. the Hindu Law applicable to the Bombay State was that a person may be adopted at any age even though he may be older than the adoptor and even though he may be married and had children. It is well-known that Hindu law in India is derived from various texts and commentaries some of which have by custom held the field in various parts of India. Hindu law, therefore is by itself customary law, except to the extent to which it has been subsequently codified. In my opinion, therefore, the prohibition contained in Section 10(iv) against the person adopted who has completed the age of 15 years has no meaning in relation to male persons adopted in the territories which were comprised in the former State of Bombay which include the District of Satara from where this appeal comes. The custom or rule of Hindu law prevailing in these territories permitting adoption of males over the age 15 years is expressly saved by Section 10(iv). The position with regard to the adoption of females may be different as there was no rule of Hindu law permitting adoptions of females prior to the Hindu Adoptions and Maintenance Act, 1956. This contention of Mr. Shrikhande must therefore be rejected.

7. The last contention taken on behalf of the appellants is that by various sale deeds executed in 1942 and 1943, Goja had alienated the properties which are the subject-matter of this litigation. On such alienations the properties completely vested in the respective appellants. Goja, although a Hindu widow, was full owner of the alienated properties subject to certain restrictions on her right of alienation and such alienations were valid until they were set aside at the instance of a proper person. Proviso (c) to Section 12 of the Hindu Adoptions and Maintenance Act, 1956 provides that the adopted child shall not divest any person of any estate which vested in him before the adoption. An adopted son was therefore not the proper person at whose instance the sales could be avoided.

8. This contention of the appellants does not appear to me to be correct. What had vested in the alienees as a result of the alienations by a Hindu widow was only her life estate. After her death, the adopted son as a reversioner became entitled to the reversion and was entitled to challenge an alienation in respect of which it has been established that it was not for legal necessity.

9. Mr. Shrikhande relied upon the following words in para 176 of Mulla's Hindu Law, 13th Edition:—

“A widow or other limited heir is not a tenant-for-life, but is owner of the property inherited by her, subject to certain restrictions on alienation, and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her and she represents it completely.” He also invited my attention to the commentary of Mulla on Hindu Law under paragraph 185 to the effect that a sale by a widow is not absolutely void as regards the reversioners, but is voidable at their option. It is true that a widow was even prior to 1956 the owner of the property of her husband. But she was its limited owner and not absolute owner. In this case as she alienated the properties in 1942 and 1943 and was not in possession in 1956, when the Hindu Succession Act, 1956 came into force, she never became the absolute owner of the property. But nonetheless she was an owner in a limited sense. The estate taken by a Hindu widow in property of her husband may be described by saying that she was the owner thereof, but she could not sell the corpus of the property or otherwise alienate it unless it was for legal necessity or for the benefit of the estate or with the consent of the next reversioners. It, was only when the alienation was made for legal necessity or for the benefit of the estate or with the consent of the next reversioners that it passed an absolute estate to the alienee to the same extent as an alienation made by full owner. In absence of legal necessity or benefit of the estate or the consent of the next reversioners what passed to the alienee was merely a life estate, The limitations imposed upon her estate were not imposed upon her for the benefit of reversioners. These limitations were inseparate from her estate so that, even if there was no reversioner, she could not alienate the corpus of the property except for legal necessity. If she did alienate the property without legal necessity and there were no reversioners, the alienation could be set aside by the Government taking the property by escheat. It is therefore wrong to say that prior to 1956 a Hindu widow was a full owner of her property in every sense. The restrictions on her power of alienation were a part of and inseparable from her estate. In this case the finding that the alienations were not for legal necessity has become final. Therefore, it appears to me that what passed to the alienees was merely the life interest of Goja and not an absolute estate.

10. When on 22nd April, 1959 the plaintiff was adopted as a son by Goia to her husband, the plaintiff succeeded to the property of his adoptive father and became a reversioner in respect of the reversion. Under Section 12 of the Hindu Adoptions and Maintenance Act, 1956, it is true that he becomes the child of his adoptive father with effect from the date of adoption. It is further true that he could not divest the appellants-alienees of any estate which vested in them before the adoption. But what vested in them was in my opinion, only the life interest of Goia and nothing more. There was, therefore, no question of divesting under proviso (c) to Section 12 of the Hindu Adoptions and Maintenance Act, 1956. The reversionary interest did no vest in the appellants and on his adoption the plaintiff became entitled to it and after the death of Goja when the life interest ceased, the plaintiff became entitled to claim possession of the property from the appellants. This contention also fails.

11. Mr. Shrikhande tried to take me through the reasoning of the learned District Judge in arriving at his conclusions on the two points of law argued before me. It is true that I do not agree fully with the reasoning of the learned District Judge, I have come to the same conclusions on these points of law by different processes of reasoning.

12. But that does not affect the correctness of the conclusions arrived at by the learned District Judge.

13. The appeal therefore fails and is dismissed. There will be no order as to costs. The decree dated 31st December 1962 of the District Court is confirmed.

14. Appeal dismissed.