Haribhau v. Ajabrao Ramji Ingale

JUDGMENT

1. The plaintiff who is the principal appellant before us, Kisanrao, appellant 2, being only a transferee, brought a suit for partition, claiming to be the adopted son of Ganpatrao, against Ramji, Ganpatrao's elder brother, who was the manager of the joint family consisting of Ramji, his son Ajabrao, his grandson Tulshiram, and Ganpatrao and the plaintiff. Ramji died during the pendency of the suit which was continued against his son, his grandson and his widow Bhimabai, who were already on the record. Associated with the plaintiff was his adoptive mother Badhabai, plaintiff 2; the adoptive faiher Ganpatrao had died in 1927.

2. In resisting the claim for partition the defendants pleaded that the adoption was invalid for two reasons, first that Mt. Radhabai was incapable of making an adoption in 1939 as she had remarried one Laxman before that date.

3. The other ground was that Mt. Mirabai who gave the plaintiff, Haribhau, in adoption was not his mother but his step-mother and consequently was incapable of giving Haribhau in adoption and as Haribhau's father had died long before, he was an orphan who could not in Hindu law be given in adoption. As regards the first point, the alleged marriage of Mt. Radhabai with Laxman, the objection by the defence failed both in the trial Court and in first appeal. In respect of the second point, the trial Court held on a detailed analysis of the evidence that the defendants' objection failed in this respect also, that Mirabai was actually Haribhau's mother and that Haribhau was not the son of an earlier deceased wife of his natural father Domaji. In appeal, however, the learned District Judge of Amraoti held, also after an analysis of the evidence, that Mirabai was not Haribhau's mother and that he was in fact the son of Domaji by an earlier wife Mt. Sarji, who had died in October 1911, some two years after the plaintiff's birth.

4. The plaintiff Haribhau has appealed taking objection to the finding of the lower appellate Court on the question of the identity of his mother, and also pleading that it is competent for a step-mother in Hindu law to give her step-son in adoption.

5. That there was an adoption ceremony in 1939 has been established and is not disputed. The finding of the lower appellate Court that the plaintiff Haribhau is not the son, but is the step-son of Mt. Mirabai is a finding of fact, and a finding of this nature, as has been repeatedly held in this Court, is not open to challenge in second appeal. The argument advanced as to the burden of proof, namely, that it should, once the factum of the adoption ceremony was established, be shifted, as to the capacity of Mt. Mirabai to give in adoption, on to the defendants is not valid. As remarked by the learned District Judge, adoption, which disturbs the natural succession to property, must be proved by very strict evidence and a very heavy onus lies on him who tries to divest the natural heir. The question too is academic inasmuch as, all the evidence was before the Court, and the plaintiff led evidence, which the lower appellate Court has not accepted, in an attempt to establish that Mirabai was the plaintiff's actual mother. Objection was also taken to the fact that the plaintiff was, not allowed to call for the original Kotwar's book in which the death of Mst. Sarji, who was alleged by the defendants and who was found by the lower appellate Court to be the plaintiff's mother. This contention is of no value since the lower appellate Court itself called for the book in question, examined the entry and found it to be a genuine entry, and also found that the book had been in the custody of the Tahsil record room for many years before the plaintiff's adoption and there was no possibility of a fraudulent entry by the defendants after that date.

6. The only point then which can remain for argument is the contention that a step-mother can in Hindu law give her step-son in adoption, and it is contended on behalf of the appellant that a wife can, after her husband's decease, give in adoption any son of her husband even if she is not the mother of that son. A quotation from the text of Hindu soriptures, namely, verse 123 from the Mitakshara, chap. 8, in Setlur's translation is cited to the effect that the term ‘mother’ includes a step-mother. This text, however, relates to partition. It is certainly true that in partition a step-mother can take equally with the mother, but she takes not as a mother but as a widow of the father. Reliance was also placed on a dictum in a Full Bench decision of this Court, 20 N.L.R 57,1 to the effect that the authority to give or take comes from the husband and that a widow in giving her son exercises not an independent but a delegated authority. But the passage cited refers to a widow's son and not to her step-son. In this case, as in all the other cases cited by the learned counsel for the appellant such as 24 Bom. 89,2 33 Bom. 1073 and A.I.R 1921 Bom. 1,4 the question in issue was the capability of a widow in giving her own son by her former husband in adoption after her remarriage.

7. That a step-mother has no authority to give her Step-son in adoption, is conclusively proved by authority. This is also the view taken by the principal commentators on Hindu law, vide Mulla, Edn. 9, Article 474 on p. 538 in which reference is made to 83 Bom. 107. “Where the appropriate scriptures are cited, and it was held that according to the texts the right of the female parent to give the son in adoption results from the maternal relation and is not derived by delegation from her husband. Similarly, Mayne, Edn. 10, pp. 239-240, states,: “No other relation but the father or mother can give away a boy” and also cites as a specific instance that a step-mother cannot give away her stepson. That is the decision of the Madras High Court in 16 Mad. 384,5 a decision which has, so far as we are able to ascertain, never been questioned and where mention is made to the fact that in some of the scriptural texts a mother has been held to include a step-mother but that it does so only in the chapter on allotments made to widows in the Mitakshara and in the chapter on sapinda relationship.

8. The decision of their Lordships of the Privy Council in a case arising from this Court, 21 N.L.R 506 places the matter beyond doubt. It is there stated:

“Admittedly, under the Hindu law, it is essential to the validity of an adoption that the child should he “given” to the adopter by the father or, if he be dead, by the mother. No other person has the right, nor can such right be delegated to anybody else (Mayne's Hindu Law, para. 132.) Consequently, a boy who has lost both his parents cannot be adopted.”

9. It is clear that in this connexion it is impossible to include the term ‘step-mother’ in the term ‘mother’, and Haribhau at the time of his adoption was an orphan. It is indeed of some significance that in the Privy Council case the contention that a body who had lost both his parents could be given in adoption was not even suggested on behalf of the unsuccessful appellant who was driven to the contention that the adoption which occured in 1908 when his mother was dead was nothing more than a confirmation of a previous adoption which had taken place during the lifetime of his mother five years before. The result is that the appeal must fail and is dismissed with costs.

10. Appeal dismissed.