Friday 17 July 2020

How is gloss theory applicable to the precedential value of the case?

There should be no doubt that when faced with contrary decisions of the Supreme Court and the High Court, the High Court and all Courts subordinate are bound to follow the decision of the Supreme Court in preference to that of the High Court. But when the High Court has, far from proceeding per incuriam, considered a decision of the Supreme Court and has put its own gloss thereon, that gloss is binding on all the Courts in the State concerned until outweighed by a later decision of he Supreme Court or a larger Bench of the High Court. 


Second Appeal No. 104 of 1984

Decided On: 15.06.1994

Amruta Babaji Mozar  Vs.   Kondabai Babaji Mozar and Ors.

Hon'ble Judges/Coram:
Anandamoy Bhattacharjee, C.J.
Citation: AIR 1994 Bom 293

1. The two questions that have been argued by the learned Counsel for the parties in this Second Appeal are :--

(1) Whether there was in fact an adoption as alleged ? and

(2) Whether there could in law be any such adoption?

A negative answer to any of the questions would warrant dismissal of the appeal, while the appeal would have to be allowed if both these questions are to be answered in the affirmative.

2. For far too long, the Hindus were under the hypnotic spell of the belief that marriage and sonship ensure great religious benefit. If this was true, then Brahmacharya and Sanyas could not be regarded to be highest religious Orders in Hindu religion. This was a myth fostered and nurtured to. persuade people to lead a normal married life and to have children as our entire society has germinated around these two institutions of marriage and sonship. The tendency of our Courts have, therefore, been to approach the questions relating to marriage and sonship ut res magis valeat quam pereat so that both marriage and sonship may flourish and not perish. As early as in 1869, the Privy Council declared in Inderun v. Ramaswamy, 13 MIA 141 that once you get that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. Courts used to have drawn extremely strong presumption in favour of legitimacy of children even before Section 112 of the Evidence Act enacted in 1872 providing to the effect that a child born to a woman shall be conclusively presumed to be the legitimate child of herself and her husband, unless non-access between the parties at the relevant time stares at the face. As to sonship by adoption, a Division Bench of the Calcutta High Court ruled in 1891 in Surendra Nandan v. Sailaja Kant, ILR 18 Cal 385, that a Court, far from being too astute to defeat an adoption, should rather do its utmost to support it and this view appears to have been approved by the Privy Council in 1906 in K. Suryanarayana, 33 IA 145. Even in 1933 in Amarendra Mansingh, 60 IA 242, accepted by a seven-Judge Bench of the Supreme Court in Gurunath MANU/SC/0125/1954 : [1955]1SCR1135 , as a leading decision on the point, the Privy Council, after referring to the doctrine as to religious efficacy of adoption, advised us to support an adoption, if we can and to defeat it only when we cannot.

3. But in the case at hand, both the trial Court and the first appellate Court have come to a concurrent finding that the factum of adoption has not been satisfactorily proved and the Deed of Adoption purports to record a sham transaction. Even assuming argue do that the finding is wrong, or even grossly erroneous, a second appellate Court must fold its hands even under the provisions of Section 100 of the Code of Civil Procedure, as it stood prior to its amendment in 1976, unless, as pointed out by the Supreme Court in Mattulal v. Radhelal MANU/SC/0010/1974 : [1975]1SCR127 , the finding is such as could not be arrived at by any Court on the materials on record. The judgments of the Courts below clearly demonstrate anxious advertence to all the materials on record and the concurrent finding arrived at by them as to the factum of adoption not having been proved is not such a one which cannot be arrived at in any view of the matter. This finding, therefore, is unassailable in Second Appeal even under Section 100 of the Code of Civil Procedure, as it stood before 1976, and what was then a restricted area for the second appellate Court has now become almost a prohibited area or no-entry area under Section 100 as amended in 1976.

4. This is sufficient to dispose of this Second Appeal and it would not have been necessary to consider the other question as to whether, assuming that the adoption as alleged did in fact take place, the same could have been validly made in law. But I still propose to advert to the same for the reasons as stated hereunder.

5. Even though in matters relating to positive law, our Hindu Law Jurists showed no less, if not better, legal acumen and grasp of legal principles than their Roman or other western counterparts, their unconcealed bias for masculine supremacy made the laws harshly discriminatory against women quite in tune with the Aryan patriarchal system which ruled in Northern India. The non-Aryan culture of the Southern India, however, could mollify the rigours of that law and as is well-known, Vyavahara Mayukha of Nilkanta Bhatta of Maharashtra, which professing to supplement the Mitakshara, has supplanted it in many places, had, while accepting the text of Vasistha prohibiting giving or taking in adoption by a woman without consent of the husband, construed the same to mean that such consent would be necessary only when the husband is living and, therefore, a widow would require no authority from the deceased-husband or the consent of her husband's Sapindas to enable her to adopt to her husband, as in some of the other Schools. In the case at hand, therefore, the parties being governed by the Maharashtra School of Hindu Law, the widow Manjulabai could in law take in adoption without any authority from her husband or the consent of her husband's Sapindas.

6. But could the widow Manjulabai adopt when her pre-deceased son had left his own widow? I thought the law on the point to be well settled, not so much by the Shastric texts, but by the judicial decisions spreading over more than a century, that if there was a son and the son died leaving his own son or his own widow, the power of the mother to take in adoption would come to an end and would not revive even on the death of that son's son or the son's widow. In the Full Bench decision of this Court decided in 1902 in Ramkrishna Ramchandra v. Shamrao, ILR 26 Bom 526, Justice Chandavarkar, after referring to the earlier Privy Council decisions ruled that "where a Hindu dies leaving a widow and a son and that son dies leaving a natural born or adopted son or leaving 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". These observations were approved by the Privy Council in Madana Mohana v. Purushothama, AIR 1918 PC 74, and then again in Amarendra Mansingh v. Sanatan Singh MANU/PR/0022/1933 which has all along been treated as the leading decision on the point and has now been approved by a seven-Judge Bench of the Supreme Court in Gurunath v. Kamalabai (supra). In Amarendra Mansingh (supra) the Privy Council, however, observed that if the son himself died sonless and unmarried, the duly would still be upon the mother and the power in her, which was necessarily suspended during the son's life, would revive. It was accordingly contended in Gurunath (supra) that "if the power of the widow, which remained suspended during the lifetime of the son, could revive on the son dying sonless and unmarried, logically the power must also revive when the son and his widow and the grandson and his widow all died out. "I must frankly confess that the logic behind this contention has also impressed me, but the contention has been repelled by the Supreme Court in Gurunath (supra) relying on the observations of Justice Chandavarkar in Ramkrishna Ramchandra (supra) and on Madana Mohana (supra) of the Privy Council approving the latter and it has been ruled that the power, once extinguished, "cannot afterwards be revived", and that though the death of her son in an unmarried state would empower the mother to adopt, but once the son marries or has his son, the mother can no longer adopt even if that wife or that son dies. I must, therefore, accept this to be the position in law, however, strongly the logic of the other view may appeal to me. That shows the truth of the dictum of Lord Halsbury in Quinn v. Leathen, 1901 AC 495, cited with approval by the Supreme Court in State of Orissa v. Sudansa Sekhan Mosra MANU/SC/0047/1967 : (1970)ILLJ662SC , to the effect that law is not always a devoted follower of logic. A deceased son's widow (or son) extinguishes the mother's power to adopt not to be revived even on the death of son's widow or son's son. A fortiori, therefore, the remarriage of such a widow daughter-in-law also would make no difference as such remarriage, at its most, is no worse than death of that daughter-in-law vis-a-vis her former husband's family. That is why it has been ruled by the Supreme Court in Ashabai Kate, MANU/SC/0133/1989 : [1989]176ITR435(SC) , following Gurunath (supra) and the Bombay Full Bench decision in Ramkrishna Ramchandra (supra), that even remarriage of the daughter-in-law would not empower the mother-in-law to adopt even though the deceased son had no son and the daughter-in-law has, by her remarriage, incapacitated herself to continue the line of her former husband by adoption or otherwise. If I were going to decide the question, I would have held, following the decision of the Full Bench of this Court in Ramkrishna Ramchandra (supra) and the decisions of the Privy Council and of the Supreme Court referred to hereinbefore, that the widow Manjulabai had no power to adopt because of the existence of the daughter-in-law and even her remarriage before the date of the alleged adoption would not have changed the position. Be it, however, noted that the finding of fact is that the daughter-in-law remarried after the alleged adoption and not before.

7. Our High Court, however, in a series of decisions, has held that the above principle that interposition of a son's widow would bring the mother's power to adopt to an end would apply only when there was one son only, but would not apply when there was another son also and if such other son in his turn died unmarried without a son, the mother's power to adopt would revive notwithstanding the existence of the widow of the former son. Reference may be made to the Division Bench decision of this Court in Anant Govind v. Dnyaneshwara MANU/MH/0042/1943 : AIR1944Bom195 , and to the three single-Judge decisions in Pandurang v. Changunabai, MANU/MH/0057/1944 : AIR 1945 Bom 164, in Sahebrao Madhavrao v. Bangarao Dadarao MANU/MH/0139/1962 : AIR1962Bom1 , and in Vaijoba v. Vasant MANU/MH/0088/1974 : AIR1974Bom111 . It is to be noted that both in Sahebrao (supra) and in Vaijoba (supra), the decision of the seven-Judge Bench of the Supreme Court in Gurunath (supra) has been duly adverted to and it has still been ruled that the predeceased son's widow will debar a mother from exercising her power to adopt only when the predeceased son was the only son; but if there was another son, the existence of the predeceased son's widow would be irrelevant and the mother would be entitled to adopt notwithstanding the existence of such son's widow, if the other son subsequently died unmarried and without a son. With greatest respect, I fail to appreciate the ratio. If as laid down in Amarendra Mansingh (supra) and the other decisions referred to therein, a widow mother cannot adopt when there is predeceased son's widow or another son, the subsequent death of another son cannot remove the bar imposed by the existence of the predeceased son's widow. Such death of the other son may empower the widow of that son to adopt, but cannot confer on the mother a fresh right to adopt. I am, therefore, and this I say with great respect, inclined to hold that the law laid down in the aforesaid decisions of this High Court is not in accord with the decision of the Supreme Court in Gurunath (supra) and that the ascertainment of law to that effect by the Appellate Judge was correct.

8. But I have, however, no doubt that even then the Appellate Judge was bound to govern himself according to the decisions of this High Court in Sahebrao Madhavrao MANU/MH/0139/1962 : AIR1962Bom1 (supra) and Vaijoba MANU/MH/0088/1974 : AIR1974Bom111 (supra), whatever his own view may be and not according to his own reading of the decision of the Supreme Court in Gurunath (supra). The law declared by the Supreme Court is no doubt of paramount precedence and is binding on all the Courts notwithstanding any decision to the contrary of the High Court to which a Court may be subordinate. This would have been the position even without Article 141 of the Constitution because of the precedent-oriented system of our judicial administration received by us from the Britishers and followed by us with utmost devotional rigidity. Article 141 was necessary, not so much for making the decisions of the Supreme Court binding on all other Courts, but to enable the Supreme Court to depart from any pre-constitution decision of the Privy Council which would have otherwise continued ,under Article 372 of the Constitution as the "laws in force" to be binding even on the Supreme Court and Article 141 clothes the Supreme Court to alter such law as envisaged in Article 372 itself. There should be no doubt that when faced with contrary decisions of the Supreme Court and the High Court, the High Court and all Courts subordinate are bound to follow the decision of the Supreme Court in preference to that of the High Court. But when the High Court has, far from proceeding per incuriam, considered a decision of the Supreme Court and has put its own gloss thereon, that gloss is binding on all the Courts in the State concerned until outweighed by a later decision of he Supreme Court or a larger Bench of the High Court. Once the Appellate Judge found that our High Court has, in Sahebrao Madhavrao (supra) and in Vaijoba (supra), considered the decision of the Supreme Court in Gurunath (supra) and has distinguished the same to hold that a widow mother can still adopt in certain cases notwithstanding the existence of a predeceased son's widow, he, being a Court subordinate to the High Court, ought to have governed himself by the enunciation of law by the High Court and in such a case it would be an act of gravest impropriety for the subordinate Court to proceed on its own reading of the decision of the Supreme Court and to hold, or even to suggest, that the High Court decision to be contrary thereto. That the law declared by the High Court, right or wrong, is binding on all Courts and Tribunals in the State, even without any provision analogous to Article 141, is too obvious from its appellate, revisional, supervisory and other jurisdictions over all Courts and other authorities and no citation should at all be necessary for such an obvious proposition. But still, as it is our habit to move in the world of law only on the crutches of precedents, reference may be made to the decision of the Supreme Court in East India Commercial Co. Ltd. MANU/SC/0179/1962 : 1983(13)ELT1342(SC) .

9. I have no doubt that in the case at hand, if the alleged adoption was found to have taken place in fact and it was thus necessary to decide the question as to the right of the widow mother to take in adoption, I, sitting singly, would have also had to be governed by the decisions of this Court in Sahebrao (supra) and in Vaijoba (supra) and by the gloss put by them on the Supreme Court decision in Gurunath (supra) and not by my own reading thereof. But since both the Courts below have held the adoption not to have taken place, in fact, this aspect need not be pursued any longer.

10. I accordingly dismiss this Second Appeal, but make no order as to costs.

11. Appeal dismissed.

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