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Bombay High Court
Jamnabai Widow Of Nahalchand vs Raychand Nahahalchand on 20 February, 1883
Equivalent citations: (1883) ILR 7 Bom 225
Author: Melvill
Bench: Melvill, Pinhey


JUDGMENT

Melvill, J.

1. The evidence, in our opinion, is sufficient to establish the factum of the adoption. The witnesses for the plaintiff state that the defendant went to the plaintiff’s natural father Giga, and asked him to give his eldest son in adoption–the eldest son being preferred by the defendant, because he was of an age to assist her in her business; that Giga consented; that the defendant afterwards sent for the boy; and that a ceremony of adoption was gone through in defendant’s house. Defendant afterwards spent a large sum of money on plaintiff’s marriage, and her own explanation of this is absurd. The only reasonable explanation is that she recognized the plaintiff as her son. Three months after the adoption we find plaintiff deposing in suits brought by the defendant that he was the defendant’s adopted son. The evidence of the defendant and her witnesses on the other side, to the effect that no adoption took place, is utterly unreliable.

2. It is contended that even though an adoption took place, it would not have the effect of divesting defendant of her estate, because she inherited from her son, and not from her husband. But this question was considered by the Judicial Committee in Vellanki Venkata Krishna v. Venkata Rama Lakshmi L.L.R. 1 Mad. 174 and it was evidently their Lordships’ opinion that a widow, who adopted a son after the death of her natural-born son, would divest herself of her estate.

3. Another objection taken to the adoption is that the ceremony was invalid, because the father of the boy was not himself present, but was represented by his brother. But there had been previously a formal consent to the adoption by the father; and, in the absence of authority to the contrary, we are not disposed to differ from the opinion of the Subordinate Judge, that the father, being prevented by sickness from attending at the ceremony, might delegate to his brother the duty of making the formal presentation to the adoptive mother.

4. The last objection taken to the adoption was that the plaintiff was the oldest son of his father, and, therefore, could not be adopted. This question has been set at rest by the recent decision of this Court in Kashibai v. Tatia Ante p. 221.

5. For these reasons we think the decree of the Subordinate Judge was right. But there have been several decisions of this Court which have recognized the propriety of not allowing a plaintiff to recover the whole property from a widow, until proper provision has been made for her maintenance. One of those decisions is that of Vrandavandas v. Yamunabai 12 Bom. H. C Rep. 229. In accordance with this practice we confirm the Subordinate Judge’s decree in all particulars, but we add to it a declaration that the plaintiff takes the property awarded to him, subject to the obligation to provide a sufficient maintenance for the defendant; and we direct that, when executing the decree in the plaintiff’s favour, the Subordinate Judge do determine what is a proper and sufficient maintenance for the defendant, and do secure the same, either by directing an investment of a sufficient part of the estate in trust for that purpose, or by such other means as he may deem sufficient.

6. The defendant must pay the costs of this appeal.


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