John Beaumont, Kt., C.J.
1. This is an appeal by the plaintiff from a decision of the District Judge of Belgaum. The plaintiff sues for a declaration that he is the validly adopted son of Lingappa Jayappa Sardesai of Sirsangi. The facts giving rise to the claim are these: Lingappa died on August 23, 1909, and defendant No. 2 is his widow. By his will he gave his property in a certain manner if he should have issue born of his body. If he should have no issue born of his body (which event happened), then he gave all his moveable and immoveable property for chari-ty, and then there were certain directions as to adoption to which I will refer presently. On December 12,1906, the widow purported to adopt the plaintiff. In the year 1909 probate of the will was granted to the Collector of Belgaum as the executor named in the will. In 1909 by suit No. 50 of 1909 the widow applied to revoke the probate, her contention being that the testator's property was inalienable. She further alleged that the will had been revoked by the testator shortly before his death, and that she had been given an express power to adopt. In the trial Court the plaintiff obtained a decree but the Collector appealed and it was held by the High Court that the will was valid as to all property of which the testator was competent to dispose, but that it did not pass the watan property which the testator could not dispose of. The decision was confirmed by the Privy Council, but certain observations were made by their Lordships as to the validity of the plaintiff's adoption, and in order to remove any doubt as to the validity of the adoption defendant No. 2 in the year 1922 made a second adoption of the plaintiff. That adoption was reported to the Collector of Dharwar and to the Collector of Belgaum, some of the watan property being situated in each of those Districts. The Collector of Dharwar accepted the adoption and registered it under Section 34 of the Watan Act, but the Collector of Belgaum refused to recognise the adoption, considering that the Privy Council had hold that the plaintiff was not validly adopted. Thereupon the plaintiff commenced this suit asking for a declaration that he had been validly adopted, but he does not ask for any specific relief.
2. The trial Judge framed certain issues, the first of which was, ' Is the adoption of the plaintiff by defendant No. 2 as a fact proved', and the second one was, 'Whether the last testament of deceased Lingappa contained an express or implied prohibition against adoption', and the third issue was, 'Whether the point involved in the second issue is concluded by the final decision in Suit No. 50 of 1909'. It is, however, to be noticed that no issue was raised by defendant No. 1, the Secretary of State, as to the jurisdiction of this Court The plaintiff in this plaint had referred to the refusal of the Collector of Belgaum to register the adoption, and his plaint shows that he sues the Secretary of State as really representing the Collector. Now, inasmuch as the plaint does not ask for any directions on the Collector to register the adoption-an omission which was no doubt based on sufficient grounds-I think it might have been open to the Secretary of State to contend that he was not interested in the question upon which the plaintiff desired a declaration, and to ask that his name might be struck out as a defendant, but the Secretary of State did not adopt that attitude. In his written statement, signed by the local Government Pleader, he maintained that the order passed by the Collector refusing to enter the plaintiff's name was legal and proper, and he has throughout fought this action. Mr. Rao on behalf of the Secretary of State in this Court desired at the conclusion of his argument to maintain that the Secretary of State had no interest in the subject-matter, but in my opinion it is too late to take that point now. He has throughout fought the action, and he has submitted to the jurisdiction of the Court.
3. Returning now to the issues, the learned Judge answered the first issue as to the fact of adoption in the affirmative, and I see no reason whatever to differ from his decision on that point. The third issue is really a preliminary issue to the trial of the second issue, the third issue being whether the point involved in the second issue is precluded by the decision in suit No. 50 of 1909. The learned Judge answered that issue in the negative, and I agree with his decision. In the suit of 1909 the widow was contending that the will had been revoked and that she had been given an express power to adopt, and a good deal of evidence was called on those points, and the Court held that those claims of the widow were not proved, But, as far as I can see, the question whether the widow could adopt-assuming the will not to have been revoked, and assuming no express power of adoption to have been given-was not argued or considered by the Court. It is true that the Privy Council in their judgment (Sunderabai v. Collector of Belgaum (1918) 21 Bom. L.R. 1148 say this (p. 1155):-.the High Court rightly found that the widow of the testator had no authority to adopt a son to her deceased husband, and consequently the suit, so far as it claimed a declaration that Jayappa Lingappa was an adopted son of the testator, must be treated as dismissed.
4. Their Lordships were not there themselves dealing with the point expressly, they merely say that they agree with the High Court's decision. The High Court did not go into the question of the construction of the will; they seem to have assumed that it prohibited adoption. I think, therefore, that we are at liberty in this suit to deal with the question of construction which is raised in the second issue.
5. Now, the learned Judge answered the second issue, whether the last testament of the testator contained an express or implied prohibition against adoption, by saying that it contained an absolute express prohibition, and he says in the reasons for his judgment:-
There is no doubt that the will contained an express prohibition against adoption either by the widow or anyone else. This is clear from para. 8 of the will.
6. Now, with all respect to the learned Judge, it seems to me clear that paragraph 8 of the will does not contain any express prohibition against adoption. Whether it contains an implied prohibition is another matter. Having given the whole of his property, move-able and immoveable, for charity what the testator says is this:-
For this reason I am not going to adopt a son. And I have neither given nor am going to give authority to make an adoption either to my wife or anybody else. If anybody should take a son in adoption and say that there was my permission for it, it should be regarded as untrue and the disposition of all my property should he made in the way I describe below.
7. Now those words contain an expression of the testator's intention that he is not going to adopt a son and that he is not going to give authority either to his wife or to anybody else to adopt a son; and it also contains a statement of fact, that he has not up to now given authority to his wife or anybody eke to adopt a son. But it seems to me impossible to say that there is any express prohibition against adoption, No doubt the Court may in a proper case imply a prohibition against adoption, but it can only do that if it comes to the conclusion that on the true construction of the will the intentions of the testator can only be given effect to by treating the right to adopt as prohibited, and any implied prohibition must be restricted to the purposes for which prohibition is held to be required, The testator has himself explained why he puts in these provisions about adoption, He does it because he wishes the previous dispositions of his will, and particularly, I think, the dispositions for the benefit of charity, to take effect. I think we should be justified in holding that there is an implied prohibition against any such adoption as would prevent those dispositions from taking effect, but such a prohibition would be nugatory, since the widow admittedly has no power to defeat the provisions of the will by adoption. In this Presidency a widow can adopt without any authority from her husband after his death unless prohibited, The suggestion of the plaintiff is that in this case the widow can adopt as to watan property, that is to say, as to property which the testator could not leave to charity, and it seems to me that there is nothing in the will which can justify us in saying that the testator intended to prevent such an adoption as that. I rather doubt myself whether the provisions against adoption, which are contained in the will, were intended to have any operation after the testator's death. It is clear that an adoption by the widow after the testator's death would not affect the dispositions made by the testator in his will, because, broadly speaking, a widow cannot adopt so as to divest vested interests. I think what the testator was really aiming at in these directions in his will was the possibility of a case of adoption in his lifetime being set up. No writing is required to prove an adoption, and therefore it is very easy, and I am afraid not uncommon, in this country for false cases of adoption to be set up. If it had been established that the testator had made anadoption himself before his death, or that his widow with his express authority had adopted during his lifetime, then of course the adopted son would have become a member of the joint family, and on the testator's death the ancestral property would have passed to him, and would not have passed under the testator's will. I think the testator was anxious to prevent any such case being set up, and for that reason he recorded the fact that he had not adopted and did not intend to adopt himself or to authorise anybody else to adopt, But I cannot see any reason in the express desire of the testator to allow his property to go to charity after his death for holding that he did not intend his widow to adopt since such adoption could only affect property which was not included in the will. I think, therefore, that we must differ from the learned Judge in his answer to issue No. 2 and declare that the plaintiff is the validly adopted son of the Sardesai. The appeal will, therefore, be allowed with costs, the costs to be paid by defendant No. 1 in both the Courts.
9. The facts have been stated in the judgment of the learned Chief Justice. The first issue is, whether the adoption of the plaintiff by defendant No. 2 is proved as a fact. The evidence on that point is referred to by the learned District Judge. The fact of the adoption, by which is meant the second adoption on March 21, 1922, is sworn to by the plaintift himself and by his adopting mother defendant No. 2. There is also the deposition of Exhibit 28, an attesting witness to the adoption deed, who states that he was present at the ceremony, and that of Exhibit 29, who wrote the adoption deed, and also states that he was present. The adoption deed recites the fact that the giving and taking and other ceremonies were duly performed. The learned Judge says :-
I hold that the adoption did in fact take place, although the evidence is not as satisfactory as it might be.
10. By this I gather he means that the plaintiff's mother who gave him in adoption was not examined as a witness and no other persons other than those mentioned were called to depose to the facts. Under the circumstances of the case, however, I do. not consider that there can be the slightest doubt as to the factum of adoption. The ceremonies which are essential are of the simplest possible character. It cannot be denied that all the persons concerned were anxious that the adoption should take place. The plaintiff's mother is also the mother of defendant No. 2, the latter being the sister of the plaintiff; she was living in the same house and there was nothing whatever to prevent the ceremony of adoption being gone through almost at anytime which the parties chose to fix. I do not consider, therefore, that any more evidence was necessary, and I agree with the learned Judge that the fact of adoption is proved.
11. As regards the validity of the adoption, which is the second and principal issue in the case, the adoption is valid according to the law which prevails in Bombay unless there is a prohibition by the husband, and we may go further and say that the adoption is valid unless there is a prohibition to be discovered in the will, because it is not suggested that except in a certain passage in the will there was any prohibition by the testator of an adoption by his wife or widow. The passage in the will which is relied upon is as follows:-
All this disposition m to be wade in case I get aurasa issue. If not I have formed the resolve of giving all my moveable and immoveable property for charity after my death. For this reason I am not going to adopt a son. And I have neither given nor am going to give authority to make an adoption either to my wife or anybody else. If anybody should take a son in adoption and say that there was my permission for it it should be regarded as untrue and the disposition of all my property should be made in the way I describe below.
12. The question is whether this passage contains an express prohibition of an adoption or whether such a prohibition can be implied from it. Although the learned District Judge took the other view, it seems to me obvious that there is no express pro hibition. The testator does not gay in so many words that his wife or widow was not to adopt a son, It has been argued that prohibition may be implied from the testator's assertion that no authority had been given or would be given by him and from the fact that lie purported to dispose of the whole estate. In my opinion, however, no absolute prohibition is to be implied, The intention of the testator must be inferred from the circumstances as they were understood and contemplated by him. He may perhaps have overlooked the watan lands which it seems form only an insignificant portion of the estate. More probably, in my opinion, he believed that the whole estate including these watan lands was his private property which he could dispose of as he pleased. In any case, I think, his understanding was that the whole of his estate would go to charity and it was on that footing that he set his face against the adoption of a son. If any attempt had been made to defeat his charitable bequest by an adoption, then it could certainly be said that he had impliedly prohibited it. But the decision of the High Court in Suit No. 50 of 1909 that the will was inoperative as regards the watan lands gave rise to a situation which was not within the contemplation of the testator at all. There was in effect an intestacy as to these watan lands and there is no reason, I think, to infer any prohibition of an adoption which would take effect as to these watan lands only. According to a statement in the will itself the testator had no bhaubands. On the death of the widow, therefore, these lands would escheat to Government. I think it is impossible to suppose that the testator either intended or desired this result.
13. In The Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397 their Lordships of the Privy Council had to deal with a somewhat similar situation and in the course of their judgment they remarked (p. 445):-
Ramasamy, no doubt, intended to be represented by his Daughters' line, should that line coulinue. But be made no express provision for its failure, and the same reasons which justify a presumption of authority to adopt in the absence of express permission are powerful to exclude a presumptive prohibition to adopt, when on anew and unforeseen occasion the religious duty arises.
14. I think that remark may fairly be applied to the present case.
15. As regards the further question whether the point involved in this issue is concluded by the final decision in Suit No. 50 of 1909, that is to say, by the decision of the Privy Council in Swnderabai v. The Collector of Belgaum I.L.R. (1918) Bom. 376 21 Bom L.R 1148 on appeal from the judgment of this High Court in Brendon v. Sundarabai I.L.R. (1913) Bom.272 16 Bom. L.R. 164 P.C. it is clear that the allegations in that suit were that there had been an adoption with the express authority of the testator and that in view of the fact that he had given his express authority he had revoked his will. The expression of opinion by the Privy Council must be considered with reference to the pleadings and the issues in the suit. The High Court negatived the contention as to express authority and as to revocation of the will and the Privy Council confirmed that judgment. It is no doubt true as Mr. Rao says that express authority not being necessary under the law in Bombay the absence of such authority would not ren-der an adoption invalid unless it was prohibited. He has argued, therefore, that the Privy Council must have construed the will as prohibiting an adoption in any event. With this view I am unable to agree. We have read the judgments of the High Court and the Privy Council, and as far as I can see, the will was not construed by either Court, The decision was not based upon a construction of the will, and that being so, the expression of opinion which has been referred to by the learned Chief Justice does not prevent this Court from construing the will now and deciding whether in the events which have happened there is an implied prohibition of an adoption.
16. As regards the point raised by Mr. Rao at the end of his argument that the plaintiff has no cause of action against the Secretary of State, I agree with the learned Chief Justice that as that point was not taken in the written statement, and as on the contrary the suit has been contested and vigorously contested by the Secretary of State on the merits, this plea cannot be allowed to be taken now, I, therefore, agree that the appeal must be allowed with costs.