History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.162
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t1.162
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v4.c63.t1.162.1
But these decisions have been dissented from in *'Bajirao v. Ramkrishna* I. L. R. (1941) Nagpur 707 and in *K. R. Sankarlingam Pillai v. Veluchami Pillai* I. L. R. (1943) Mad. 309 (F. B.), where it has been laid down that when the surviving coparceners of a joint Hindu family were in possession of the joint family properties which they obtained in a partition among themselves after the death of a coparcener and subsequent to the partition a valid adoption was made to the deceased coparcener by his widow the adopted son was entitled to reopen the partition. They rely by way of analogy on the provisions of Yāj. that the posthumous son can reopen a partition already made and also on that of the disqualified heir when the disqualification is removed and on the dicta in some cases that an adoption dates back to the date of the death of the adoptive father. But no smṛti text and no digest has extended the exceptional rules about the posthumous son and the disqualified heir to a son adopted after partition. Their reasoning as regards the Bombay cases is not satisfactory. It amounts to this that as between the separating co-parceners the coparcenary may be extinct but as to the subsequently adopted son it exists i. e. a coparcenary is extinct and existing at the same time, which, to use no stronger expression, appears rather strange. Besides the general rule is that partition is made only once (Manu IX. 47).
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The cases of the posthumous son and of the disqualified heir are expressly provided by way of exceptions. The usual rule is that exceptions are to be strictly limited to the matters expressly stated and are not to be extended by analogy to cases not covered by the words of the exception and that other cases are governed by the general rule. It is a canon of interpretation in Hindu Law that a special text forming an exception to a general text should be construed strictly and applied only to the cases clearly falling within it (*Gangu v. Chandrabhagabai* 32 Bom. 275, 283, *Hanmant v. Ganesh* 43 Bom. 612, 624). Further, a Hindu widow is not compelled to adopt at any particular time; she may adopt at any time during her life. In *Raje Vyankatrao v. Jayavantrao* 4 Bom. H. C. R. (A. C. J.) 191 it is noticed that the widow in that case adopted 71 years after her husband's death. If the reasoning of the learned Judges of Nagpur and Madras is correct then when three or four generations have succeeded to the separating coparceners, an adopted son can reopen the partition after three quarters of a century This result, to say the least, would be most unreasonable. The Nagpur High Court observes that every Hindu widow is a potential mother. This is a fiction which has been carried too far by that court and by the Privy Council.
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A woman in the order of nature can hardly ever have an *aurasa* son beyond the age of fifty or so, but when a fiction is employed a woman can bring into existence a son even when she is 80 or 90. The Privy Council have approved of the Nagpur and Madras decisions recently in *Anant v. Shankar* 46 Bom. L. R. 1. They hold that a Hindu family cannot be brought to an end while it is possible in nature or law to add a male member to it or while there is still a potential mother if that mother in the way of nature or law brings in a new member. In *Ramchandra v. Shankar* 47 Bom. L. R. 121 (F. B.) the Privy Council decision in *Anant v. Shankar* has been followed and it is held that the decision in *Balu v. Lahoo* has been expressly overruled by the Privy Council. The consequences of these latest decisions will be most disastrous for Hindus. In Amarendra's case the P. C. state that there must be some limit to the power of a widow to adopt or some conditions in which it would be contrary to the spirit of the doctrine to admit its continuance or inequitable in the face of other rights to allow it to take effect (L. R. 60 I. A. 242 at p. 249). In *Madana Mohana v. Purshothama* L. R. 45 I. A. 156 the P. C. approving of *Ramkrishna v. Shamrao* 26 Bom. 526 (F. B.) held that, when a man dies leaving a widow and a son and that son dies leaving his own son or a widow to continue the line by adoption, the power of the former widow comes to an end and cannot be revived;
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that is, they were prepared to hold that the grandmother succeeding to her grandson who died unmarried could not make a valid adoption and allowed the grandfather and his ancestors to remain without the religious benefits that a son adopted by the grandmother would have conferred (in spite of the 9th chapter of Manu on which they rely in Amarendra's case). According to the recent rulings any widow whose husband died a member of a joint Hindu family may adopt *at any time* even when the other members become separate and may remain separate for 50 years or more and yet a large slice of the estate may be taken away after several generations have succeeded, laboured and acquired a vast estate. Further, it is not clear how far the P. C. will go in their solicitude for the adopted son. Suppose three brothers separate and one of them sells the property that came to his share. If the partition is to be opened for the benefit of a son subsequently adopted by a predeceased member's widow, will the purchaser be affected or not (supposing the sale is within 12 years of the adoption)?
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Supposing that the last surviving member of a family dies leaving a married daughter and a predeceased son's widow and the daughter inherits an absolute estate (as she does in Bombay) and remains in possession for 30 years, is it meant that a son thereafter adopted by the widowed daughter-in-law can divest an estate vested for thirty years in a married daughter who is not a member of the family at all after her marriage? The recent P. C. decision in *Anant v. Shankar* appears to indicate that whatever the length of time the adopted son will oust a collateral to whom the estate may have gone by inheritance. Intending purchasers have become afraid that there is no knowing how far the P. C. may go. These decisions will lead on to hurried sales of joint family property at whatever price may be fetched immediately a coparcener dies leaving a widow. The result of the several decisions of the P. C. has been that properties of Hindu families in which widows of predeceased coparceners exist are not easily saleable and do not yield their proper market value. The inroads on the ancient joint family system of the Mitākṣarā have been so many that only the shell remains; the burdens are there, but the soul is gone, what with the right of each coparcener to alienate his share for consideration, the Gains of learning Act, Act 18 of 1937, the decisions of the P. C. about adoption, sec. 39 of the Transfer of Property Act.
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It would be better if the Legislature declared that the joint family system of the Mitākṣarā type has been abrogated, if all the innovations introduced by legislation and judicial decisions are to be kept intact.