Citation: Sau Ashabai Kate V. Vithal Bhika Nade, 1990 AIR 670, 1989 SCR Supl. (1) 464
Date of Judgement: October 17, 1989
Equivalent citations: 1990 AIR 670, 1989 SCR Supl. (1) 464
Case No.: Civil Appeal No. 1846 of 1974
Case type: Civil Appeal
Appellant: Sau Ashabai Kate
Respondent: Vithal Bhika Nade
Bench: Hon’ble Justice L. M. Sharma and Hon’ble Justice Dr. T. K. Thommen
Court: Supreme Court of India
Statue Referred:
- Hindu Women’s Rights to Property Act
- Section 3
- Hindu Succession Act 1956
- Ram Chandra v. Murlidhar, [1937] 39 Bom. L.R. 599
- Guru Nath v. Kamlabai, [1955] 1 SCR 1135
- Amrendra Mansingh v. Sanatan Singh, [1933] L.R. 60 I.A. 242
- Ramkrishna Ram- chandra v. Shamrao, [1902] I.L.R. 26 Bom. 526
- Bapuji v. Gangaram, [1941] I.L.R. Nagpur 178
Significance– This appeal by the plaintiff is directed against the decision of the Bombay High Court for dismissing her suit for possession of the properties.
Facts:
- The disputed properties belonged to a joint Hindu family which was governed by Mitakshara law wherein Bhiku and his son Balu were coparceners.
- Bhiku died on 06/06/1942 leaving his widow Parvati, (Respondent 2) within the present suit, and Balu died soon after the demise of his father on 24/07/1942.
- In the month of November 1942, Balu’s widow Lilabai gave birth to a daughter who is the present Appellant.
- Lilabai remarried after a while and thereupon Parvati adopted Vithal, (Respondent 1) within the present suit, within the year 1949.
- After attaining majority, Appellant Ashabai filed this suit for a decree for money for Rs. 3000 as expenses of her marriage.
- Appellant challenged the facility of her grandmother to adopt (Respondent 1) on the bottom that her right to adopt was lost on the death of Balu leaving his widow Lilabai
- The subsequent court accepted the case, and upheld the adoption of Respondent 1 as valid, and dismissed the suit.
- The Appellant, Ashabai, challenged the choice by an appeal which was heard by the additional Assistant Judge, Poona, who allowed an equivalent and passed a decree for possession of the suit properties alongside mesne profits.
- The Appellant then moved to the Apex Court under Article 136 of the Constitution of India.
Issue involved:
Whether there’s a relief which the Plaintiff is entitled to get?
Contention of Appellant:
The Counsel for the Appellant Contended that:
N/A
Contention of Respondent:
The counsel of Respondent contended that:
N/A
Ratio decidendi:
The argument primarily belonged to the Hindu joint family property of which Bhiku was a coparcener. If there had been a partition, Bhiku would have received half of the properties, which would have passed to Parvati after his death.
Whereas Parvati is still alive and is supporting her granddaughter’s claim. As a result, she cannot be deprived of her half-share in the properties. The first attention that devolved on Parvati was, however, limited in scope and was referred to as Hindu woman’s estate. She became the sole owner of the property once the Hindu Succession Act of 1956 was passed. Similarly, on her mother’s remarriage, the Appellant received the remaining half portion of Balu’s interest in the properties, and she or he received a Hindu woman’s estate therein, which ripened fully ownership under Section 14(1) of the Hindu Succession Act.
Obiter dicta:
“Where a Hindu die leaving a widow and a son, which son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the road by means of adoption, the facility of the previous widow is extinguished and may never afterwards be revived.”
Judgement:
The first appeals 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, Court ordered an inquiry to be made under Order XX, Rule 12, Civil Procedure Code. Her claim for a money decree for Rs. 3000 wasn’t allowed even by the primary appeals court and stands finally rejected.
The Plaintiff’s suit for half share within the suit properties with mesne profits as also for partition is decreed. The appeal is accordingly allowed partially, but the parties are directed in touch their own costs throughout.
Conclusion:
The case comes from Maharashtra where a Hindu widow may adopt even with none authority. The argument of the plaintiff was 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 didn’t revive. She was additionally entitled to a decree for half share within the suit properties, as prayed for by way of an alternate relief within the plaint.
Drafted by: Bharti Verma, Chanderprabhu Jain College of higher studies and school of law
Edited By: Tanvi Mahajan, Publisher, Law Insider
Published On: February 11, 2022 at 23:00 IST