SAU ASHABAI KATEversusVITHAL BHIKA NADE

                            SAU ASHABAI KATE
A                                  v.
                           VITHAL BHIKA NADE

                             OCTOBER 17, 1989

B              [L.M. SHARMA AND T.K. THOMMEN, JJ.]

         Hindu Law: Remarriage of son's widow-Power of son's mother
    to adopt-Whether revives.

           The disputed property belonged to a joint Hiodu family, governed
    by Mitakshra law of which one Bhiku and his son were coparceners.
c   Bhiku died leaving behind Parvati his widow and a son, Balu. Soon
    after, Balo too died, leaving behiod his widow Lilabai who gave birth to
    a posthumous daughter, the present appellant. Sometime later Lilahai
    remarried. Thereupon Parvati, Bhiku's surviving wife adopted Vithal,
    the present respondent io this appeal. The appellant, Ashabai on attain-
D   ing majority filed the present suit for a decree for possession of proper-
    ties with mesne profits and a decree for money and challenged the
    power of her grand-mother to adopt.

          The trial court upheld the adoption of the defendant as valid and
    dismissed the suit. The plaiotiff Ashabai challenged the decision by an
E   appeal. The Appellate court allowed the appeal and passed a decree in
    her favour grantiog the reliefs claimed. Thereupon the defendants chal-
    lenged the decree of the first appellate court io the High Court. The
    High Court ruled that a Hiodu widow's power to adopt is revived the
    moment there is nobody to continue the line, and thus the adoption of
    the respondent was found legal and valid and the decree in favour of the
F   plaiotiff-appellant was set aside and her suit dismissed. Hence this
    appeal by special leave by the plaiotiff.

          Allowing the appeal io part by decreeing the suit for half share io
    the suit properties with mesne profits this Court,

G         HELD: There does not appear to by any scope for holdiog that on
    the remarriage of the son's widow the power of son's mother to adopt
    revives. [467F]

        In the instant case, on the death of Balu, the responsibility for the
  continuance of the family line fell on his widow Lilabai hy the power of
H adoption vesting in her and the power of Parvati to adopt was extin'

                                      464
                 S.A. KATE v. V.B. NADE [SHARMA, J.)                  465

guished permanently and is not revived even on Lilal!ai's remarriage.        A
Consequently the adoption of the first defendant was invalid in the eye
oflaw and he-did not get any interest in the suit properties. [468B]

     The properties belonged to the joint family of which Bhiku was a
coparcener. On his death in 1942 bis wife Parvati got under S. 3(2) of the
Hindu Women's Rights to Property Act, 1937, the same interest as             B
Bhiku had in the joint family properties. [468C]

      The interest which initially devolved on Parvati, however, was
limited in nature known as the Hindu Women's estate. On passing of
the Hindu Succession Act, 1957 she became full owner thereof. [4680]

 .    Ram Chandra v. Murlidhar, [1937] 39 Born. L.R. 599; Gurunath · C
v.Kamlabai, [1955] l SCR ll35; Amrendra Mansingh v. Sanatan
Singh, [1933] L.R. 60 I.A. 242; Ramkrishna Ramchandra v. Shamrao,
[1902] I.L.R. 26 Born. 526 and Bapuji v. Gangaram, [1941] I.L.R.
Nagpur 178, referred to.
                                                                     D
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1846
of 1974.

     From the Judgment and Order dated 25.9.1972 of the Bombay
High Court in Appeal No. 512 of 1965.
                                                                             E
      V .N. Gan pule and Mrs. Urmila Sirur for the Appellant.

    V.A. Bobde, Uday U. Lalit and A.G. Ratnaparkhi for the
Respondent.

      The Judgment of the Court was delivered by                             F

     SHARMA, J. This appeal by the plaintiff-appellant is directed
against the decision of the Bombay High Court dismissing her suit for
possession of the properties detailed in the plaint.

      2. The disputed properties belonged to a joint Hindu family            G
governed by Mitakshara law of which one Bhiku and his son Balu were
coparceners. Bhiku died on June 6, 1942 leaving behind his widow
Parvati, the defendant No. 2 in the present suit and Batu who dies soon
after his father's demise on July 24, 1942. In November 1942 Balu's
widow Lilabai gave birth to a posthumous daughter who is the present
appellant: Sometime later Lilabai remarried and thereupon Parvati            H
     466         SUPREME COURT REPORTS                I1989] Supp. 1 S.C.R.

     adopted Vithal, the first defendant in the present suit, in the year
A    1949. After attaining majority, appellant Ashabai filed the present suit
     for a decree for possession of the properties with mesne profits and a
     decree for money for Rs.3,000 as expenses of her marriage. She chal-
     lenged the power of her grand-mother to adopt the first defendant on
     the ground that her right to adopt was lost on the death of Iialu leaving
B    behind his widow Lilabai.
           3. The trial court accepted the defence case, upheld the adop-
     tion of the defendant No. 1 as valid, and dismissed the suit. The
     plaintiff, Ashabai, challenged the decision by an appeal which was
     heard by the Extra Assistant Judge, Poona, who allowed the same and
     passed a decree for possession of the suit properties along with mesne
c    profits. Now, it was the turn of the defendants to question the decree
     of the first appellate court before the High Court under s. 100 of the
     Code of Civil Procedure. After considering a number of Privy Council
     and Supreme Court decisions, the High Court ruled that a Hindu
     widow's power to adopt is revived the moment there is nobody to
     continue the line, and since Lilabai incapacitated herself in doing so by
D
     her remarriage, the right of her mother-in-law to adopt a son to her
     husband revived. The adoption of the first defendant was, thus, found
     legal and valid. Accordingly the decree in favour of the plaintiff was
     set aside and her suit dismissed. The appellant then moved this Court
     under Article 136 of the_ Constitution and special leave has been
     granted.
E
            4. The case comes from Maharashtra where a Hindu widow may
     adopt even without any authority. The contention of the plaintiff is
     that on the death of Balu his mother Parvati lost this power which
     vested in Balu's widow Lilabai and on Lilabai's remarriage Parvati's
     power did not revive. The adoption of defendant No. 1 was, therefore,
F    illegal. Reliance was jJlaced on several decisions of the Bombay High
     Court including that in Ram Chandra v. Murlidhar, [1937] 39 Born. L.R.
     599. In similar circumstances the Division Bench held that the
     mother's power to adopt a son was permanently extinguished on the
     death of her natural son leaving a widow. The High. Court in the
     present case refused to follow the said decision on the ground that the
G    same must be held to have been impliedly over-ruled by the judgment
     of this Court in Gurunath v. Kamalabai, [1955] 1 SCR 1135. In our
     view the High Court has not correctly appreciated the decision in
     Gurunath's case.
           5. The relevant facts in Gurunath v. Kamalabai, may be briefly
     put thus. The disputed property belonged to Krishtarao who died leav-
.H
     ing behind two widows~Radhabai and Gangabai-and a son
                 S.A. KATE v. V.B. NADE [SHARMA, J.]                  467

Dattatraya. Dattatraya died in 1913 leaving behind his widow
                                                                             A
Sundarabai and a son Jagannath. Sundarabai died soon after the death
of her husband and a year later Jagannath also died. Gangabai, the
junior widow of Krishtarao, adopted Gurunath, the appellant before
this Court, who filed a suit claiming certain rights as the adopted son of
Krishtarao. One of the issues arising in the case related to the validity
of Gurunath's adoption. A Bench of seven learned Judges of this              B
Court examined several decisions of the Privy Council including the
judgment in Amarendra Mansingh v. Sanatan Singh, [1933] LR. 60
I.A: 242, and said that the rule,
                 "That the interposition 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;"                       c
was being followed for a very long time and has become a part of
Hindu law. They also approved the observation of Chandavarkar, J.,
who delivered the judgment of the Full Bench of the Bombay High
Court in Ramkrishna Ramchandra v. Shamrao, [1902] I.LR. 26 Born.
526, to the following effect:                                                D
                  "Where a Hindu dies leaving a widow and a son, and
            that son dies leaving a natural born or adopted son or leav-
            ing 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."
                                                                             E
They also quoted with approval another part of the judgment of
Chandavarkar, J., stating that 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. "In view of these observations in the    F
judgment in Gurunath's case there does not appear to be any scope for
holding that on the remarriage of the son's widow the power of the
son's mother to adopt revives. The matter does not stop here. Reliance
was placed by the appellant on the decision of the Nagpur High Court
in Bapuji v. Gangaram, [1941] I.LR. Nagpur 178, where the facts
were identical to those in the present appeal. The Nagpur High Court         G
had held that the power of the mother revived on the remarriage of the
son's widow. This Court discussed the Nagpur judgment at some
length at pages 1148 and 1149 and disapproved it. This part of the
judgment does not leave any r.oom for doubt that this Court in
Gurunath's case has affirmed the decisions of the Bonibay High Court
in Ramkrishna Ramchandra v. Shamrao, [1902] I.LR. 26 Born. 526               H
    468          SUPREME COURT REPORTS                 [1989] Supp. l S.C.R.

    and Ram Chandra v. Murlidhar, I 1937] 39 Born. L.R. 599, as laying
A
    down the correct law and rejected the rule of law similar to the plea of
    the present respondent, recognised by Nagpur High Court in identical
    facts and circumstances. We accordingly hold that on the death of Balu
    the responsibility for the continuance of the family line fell on his
    widow Lilabai by the power of adoption vesting in her, and the power
B   of Parvati to adopt was extinguished permanently and did not revive
    even on Lilabai's remarriage. Consequently the adoption of first
    defendant was invalid in the eye of law and he did not get any interest
    in the suit properties.

          6. Now remains the next question as to the relief which the
    plaintiff is entitled to get in this suit. As has been observed earlier, the
c   properties belonged to the joint family of which Bhiku was a
    coparcener. On his death in 1942 his wife Parvati got under s. 3(2) of
    the Hindu Women's Rights to Property Act, 1937, the same interest as
    Bhiku had in the joint family properties. If a partition had taken place
    Bhiku would have got half share in the properties, which on his death
0   devolved on Parvati. Parvati is still alive and is defending the claim of
    her grant-daughter. She cannot, therefore, be deprived of her half
    share in the properties. The interest which initially devolved on
    Paravati, however, was the limited in nature known as Hindu
    Woman's estate. On the passing of the Hindu Succession Act, 1956,
    she became full owner thereof. Likewise the remaining half share of
H   Balu in the properties, devolved on the appellant on her mother's
    remarriage and she got a Hindu Woman's estate therein which ripened
    in full ownership under s. 14(1) of the Hindu Succession Act. She is
    thus entitled to a decree for half share in the suit properties, as prayed
    for by way o(an alternative relief in the plaint. She has also asked for a
    decree for partition in case of a partial decree which she is entitled to
    get. The first appellate court had also granted a decree for mesne
    profits, pendente lite and future, which should be restored but only in
    respect of her half share. Accordingly, an inquiry shall be made under
    Order XX, Rule 12, CPC. Her claim for a money decree for Rs.3,000
    was not allowed even by the first appellate court and stands finally
    rejected.
d
          7. In the result, the decision of the High Court is set aside and
    the plaintiff's suit for half share in the suit properties with mesne
    profits as also for partion is decreed. The appeal is accordingly allowed
    in part, but the parties are directed to bear their own costs throughout.

H R.NcJ.                                                      Appeal allowed.