Norman Macleod, Kt., C.J.
1. The plaintiff filed this suit as the adopted son of one Murari Tarade to recover possession of the suit properties, which had been gifted by his adoptive mother to her daughter Rakhma who died prior to the suit. Murari died leaving a widow Dhondai and three daughters. The date of his death does not appear on the record but it was prior to November 23, 1910, when Dhondai executed a gift deed (Exhibit 52) in favour of Rakhma, her youngest daughter. The document recites that the ether two daughters were married and had ample means, while Rakhma and her husband had been residing with Dhondai, serving her and looking after her comforts and the arrangement of her maintenance, and as she hoped that both of them would continue to do the same to the last she gave to Rakhma in gift the property described below. Then in the operative part it was stated that the donee should go on looking after the arrangements of the donor's feeding, etc., and should render service to her by way of looking after her comforts as she had been doing all along to the end of the donor's life and should perform the last religious rites in accordance with their religion. Rakhma died first and thereafter Dhondai, having fallen out with Rakhma's husband, defendant No. 1, adopted the plaintiff, nearly twelve years after her husband's death.
2. It has been found as a fact that plaintiff was adopted by Dhondai and that Rakhma's sisters consented to the alienation by Dhondai to Rakhma who was the sole next reversioner as being the poorest of the three married daughters.
3. The trial Judge said : 'A son by adoption stands in very much the same position as a natural born son and traces his rights to the property of his adoptive father as they existed at the time of his death though he might be adopted by the widow long after and would divest all estates created by the widow during the interval between the time of the death of the last male owner and of his adoption by the widow of such owner'. He then dealt with the argument that the consent of the next reversioners was presumptive proof of necessity and therefore made the alienation good against the plaintiff, coming to the conclusion that in the case of a gift without consideration no question of necessity could arise.
4. Accordingly he passed a decree in favour of the plaintiff. The learned Judge, though he referred to the fact that on the same day that the deed of gift was executed defendant No. 1 passed a potgi-patra (maintenance deed) agreeing to provide Dhondai with maintenance, did not consider that amounted to consideration for the gift.
5. The learned District Judge, however, was of opinion that there was consideration for the gift and following the decision of this Court in Adiveppa v. Tontappa I.L.R. (1919) 44 Bom. 255 : 22 Bom. L.R. 94 held that there was no acceleration of the reversion and so the adopted son was entitled to have it set aside.
6. The appeal accordingly was dismissed and the plaintiff succeeded on the ground that there was no acceleration.
7. Now the agreement by Rakhma's husband could not be treated as consideration passing from Rakhma, and the provisions in the deed of gift that Rakhma should go on looking after the arrangements for Dhondai's feeding would not be considered & objectionable according to the ruling of the Privy Council in Sureshwar Misser v. Maheshrani Misrain , which would appear to be inconsistent with the decision in Adiveppa v. Tontappa. With the very greatest respect it would appear as if this decision has afforded a very wide scope for future litigation. It offers a temptation to next reversioners to induce young widows to surrender their life estate in return for maintenance, and it will be difficult to draw the line between a promise to pay maintenance, and an arrangement which is a device to divide the estate between the reversioner and the widow. If the real test is the complete surrender by the widow of the right to hold the property, the loss of the right acting as a deterrent against a too frequent use by widows of the power of surrender so as to favour the next reversioner to the detriment of the more remote who still have a chance of being the nearest when the reversion falls in, it seems to me that if the widow is able to secure her maintenance, the forces operating on her mind to prevent her exercising her power of surrender have been rendered extremely small. Provided the surrender is total and not a device to divide the estate with the reversioner, it is effective. The question then arises whether the title of Rakhma was absolute or was liable to be divested in the event of Dhondai adopting. The learned Counsel who appeared for the parties could find no direct authority on the point, though it is certainly strange that it has not hitherto come before the Courts for decision.
8. The rights of a Hindu widow in her late husband's estate, as pointed out by their Lordships of the Privy Council in Rangasami Gounden v. Nachiappa Gounden , are not aptly represented by any of the terms of English law applicable to what might seem analogous circumstances. Her estate is neither a fee nor an estate for life nor an estate tail. At p. 84 their Lordships, summarised the result of the considerations of the decided cases on the question of a widow's powers of alienation distinguishing between the alienation, which could be shown to be a surrender of her whole interest in the whole estate in favour of the nearest reversioner or reversioners at the time of alienation, where no question of necessity would fall to be considered, and the alienation of a whole or part of the estate on the ground of necessity, when the consent of such reversioner as might be fairly expected to be interested to dispute the transaction would be held to afford presumptive proof which, if not rebutted by contrary proof, would validate the transaction as a right and proper one.
9. With regard to the power of surrender their Lordships said at page 79:
The foundation of the doctrine has been sought in certain texts of the Smritis. It is unnecessary to quote them.... But in any case it is settled by long practice and confirmed by decision that a Hindu widow can renounce in favour of the nearest reversioner if there be only one or of all the reversioners nearest in degree if more than one at the moment. That is to say, she can so to speak by voluntary act operate her own death.
10. The questions which might arise when a woman after such a voluntary act bore a son to her husband or adopted to him were not considered. But the real issues are liable to be confused as they were in the trial Court by the widow purporting to convey not her whole interest in the whole estate, but the whole estate itself as if she were full owner, and this is what Dhondai purported to do by Exhibit 52. There was therefore an alienation which prima facie the widow was incompetent to make. But it is curious that no distinction appears to have been drawn between the transfer by a widow of her life estate which she is competent to make in favour of any one, and a transfer of what 1 may call the fee which she cannot do without some justification. If a widow by deed conveys her life estate to the next reversioner, is there any necessity of making use of a legal fiction in order to make the next reversioner the full owner?
11. As pointed out by Beaman J. in Moti Raiji v. Laldas Jebhai I.L.R. (1916) 41 Bom. 93 : 18 Bom. L.R. 954 the true doctrine of acceleration is no more than the English doctrine of merger subjected to the peculiar conditions and requirements of the law of the joint Hindu family. If then the widow does not convey her life estate to the next reversioner for which she is competent, but purports to convey the fee for which she is not competent, the real result of the authorities is that the conveyance is split up into its component parts and effect is given to that part which is valid. When treated in this way it may be said that no question arises with regard to the attempted alienation of the fee, which would be as a matter of fact unnecessary for bringing about the merger.
12. In the above mentioned case it was held that there was in effect a reservation at the time of the intended acceleration by the life tenant of a substantial interest in the estate so accelerated, in other words, there was a division of the estate between the widow and the reversioner and therefore the transaction violated the fundamental basis of the doctrine of acceleration. If she had not done so the Court would have had to consider the question whether an after-made adoption could divest an estate which had vested in the meantime. Beaman J., however, as the question had been discussed in the arguments, made certain observations upon it and those though obiter may usefully be referred to. The learned Judge said (p. 115):
The point of difficulty is to find any single, clear and uniform principle upon which (a) to rest the law commonly favoured in the Courts where it is a case of after-adoption, and (b) to distinguish such a case from that of a posthumous natural son. In the latter case, it could only be on the assumption that his rights arise upon his conception, that he could be put upon a different footing from an after-adopted son. But I doubt whether that ground can be justified in the Hindu law proper.... Reasoning to be found in some of the reported oases against allowing an after-adopted son to divest estates vested in the meantime, will not do. There we find it said that the true reason is, that until a widow does adopt no one can say whether she will or not. But it is as true to say that a widow left pregnant cannot say, nor can any one say, whether she will give birth to a child at all, or if she does whether that child will be a son. A son adopted fifteen years after his adoptive father's death would certainly not be allowed to divest estates which during that period might have vested more than once in others. But a posthumous son born a week after his father's death almost certainly would. Yet a very little reflection will show that the element of time has really nothing to do with the operation of any uniform principle rightly applicable to all cases of the kind. Nor upon a rigorous analysis is it easy to discover any ground upon which to distinguish the case of an after-adopted from that of an after-born son.
13. It may be gathered from the above remarks that the learned Judge, if it had been necessary, would have decided in favour of the after-adopted son.
14. The question whether a widow who had been given authority by her husband to adopt but had not exercised that power could file a suit in her character as a widow claiming his succession in the family estates was considered in Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 M.I.A. 169. Their Lordships of the Privy Council concurred in its entirety with the judgment of the Full Bench of the Suddar Dewanny Court deciding that the authority to adopt did not, before an adoption had actually taken place, supersede and destroy her personal right to sue as widow, It was argued that a widow who had permission to adopt was to be regarded as enceinte, but the Court was of opinion that if no text could be shown for the suspension of the rights of a widow actually pregnant it was still more certain that there was no similar provision for divesture of the right in the case of a widow held only to be constructively pregnant of a son through the effect of a permission to adopt. After considering the authorities the judgment proceeds at page 183:
So that the after-born son's right is to his share of the estate as it stands at the time of his birth, and not retrospectively with reference to its state at any supposed period of his conception.... The clear inference is, that could a widow have been heir, as she can incontestably be in Bengal, she might have been admitted on her own right during pregnancy, the share devolving to her son only on his birth.
15. Reference was made to the opinion of Mr. Colebrooke in Strange's Hindu Law, Vol. II, p. 127, 1st Ed.:
Presuming the property here spoken of as the woman's to have been what devolved upon her by the death of her husband, it ceased to be hers at the moment of a valid adoption made by her of a son to her husband and herself; in the same manner as property, coming into the hands of a pregnant widow, by the same means, cannot be used by her as her own, after the birth of a son. An adopted son is in most respects precisely similar to a posthumous son. From the moment of the adoption taking effect, the child became heir of the widow's husband; and the widow could have no other authority but that of mother and guardian.
16. And the Court after considering whether it made any difference that that opinion was given in regard to a Madras case governed by the Mitakshara concluded:
There is nothing in that difference which affects the applicability of Mr. Colebrooke's opinion to the case of sons in Bengal, as well as elsewhere, antecedent to birth. See the dictum of the Privy Council in Dhurm Das Pandey v. Mussumat Shama Soondri Dibiah (1843) M.I.A. 229. Now, upon the authorities, there can be no doubt that that is the result of an act of adoption, because the property is in the widow from the death of the husband till the power of adoption is exercised. Then that adoption divests it from the widow and vests it in the adopted son.
17. Again at p. 189 the Court said:
The truth is, that the supposition of a positive and actual right vested in an embryo which may never come into full existence, is one which must almost be rejected on the mere abatement of it. It is particularly repugnant to common reason in the case of a possible adoption, which may be made after the lapse of many years, or may never be made at all.
18. As soon as we get rid of the notion of constructive pregnancy in the case of a widow with power to adopt, the result of an adoption upon prior alienations by the widow can be determined without any difficulty. As stated in Mayne's Hindu Law, 9th Edn., at page 270:
These restrictions [which fetter a widow's estate] exist quite independently of the adoption. The only effect of the adoption is that the person who can question them springs into existence at once, whereas, in the absence of an adoption, he would not be ascertained till the death of the woman. If she has created any encumbrances or made any alienations which go beyond her legal powers, the son can set them aside at once. If they are within her power?, he is as much bound by them as any other reversioner would be.
19. The alienation by a widow of her life-estate to any one other than the next reversioner can be set aside by her adopted son as the adoption puts an end to the life-estate and so divests the estate of any one claiming under a title derived from her, (Mayne, 9th Edn., p. 271) but the surrender of the life-estate to the next reversioner gives a title to him which is not dependent on the continuance of the life-estate but results from its extinction, and cannot, in my opinion, be questioned by the subsequently adopted son. It follows that the title of one claiming either by purchase or by inheritance from the next reversioner is equally indefeasible. The appeal must succeed and the suit must be dismissed with costs throughout.
20. The facts found in this case by the lower Courts are as follows:
21. The property in suit belonged to one Murari. He died leaving him surviving a widow Dhondai and three daughters, Abai, Kondai and Rakhma. Defendant No. 1 is the husband of Rakhma. After Murari's death his widow Dhondai gifted the whole estate to Rakhma. Rakhma was to a marked degree the poorest of the three and therefore the nearest reversioner : Totawa v. Basawa I.L.R. (1898) 23 Bom. 229. The other daughters gave their consent to the gift which was made in 1910. After Rakhma's death and some eight or ten years after the gift Dhondai adopted the plaintiff.
22. Plaintiff sues to recover possession of the property alleging that the gift is null and void and the questions which arise for decision are whether the gift was effectual at the time when it was made, and whether it is binding on a son subsequently adopted.
23. The alienation by a Hindu widow of her deceased husband's estate may be validated on two grounds : (a) on the ground of necessity and (b) as a surrender of her whole interest in favour of the nearest reversioner : see Rangasami Gounden v. Nachiappa Gounden . In the case of a gift no question of necessity can arise and therefore the second ground alone need be considered in this case. The lower appellate Court has held on the authority of Adiveppa v. Tontappa I.L.R. (1919) 44 Bom. 255 : 22 Bom. L.R. 94 that there was no complete surrender here because there was a provision for the widow's maintenance. But in view of the decisions of the Privy Council it is difficult to accept that conclusion. In Sureshwar Misser v. Maheshrani Misrain their Lordships of the Privy Council lay down that there must be total not a partial surrender, that is a bona fide surrender, not a device to divide the estate with the reversioner. In that case there was a provision in the deed which was there under consideration that the widow should retain one-hundred bighas of land for her maintenance, but the surrender was none the less held to be effective. Upon this point their Lordships say:
The conveyance of small portions of land to the widowed mother was unobjectionable, as it was only for maintenance. Their Lordships are therefore of opinion that the arrangements of the compromise cannot be stigmatized as a device to divide the estate between the surrendering lady and the nearest reversioner, and cannot now be taken exception to.
24. The same conclusion appears to follow from the judgment of the Privy Council in Bhagwat Koer v. Dhanukhdhari Prasad Singh . In that case also the two Ekrarnamas, which were held to amount to a complete surrender, contained a provision for the maintenance of the widow. There is nothing in the facts of the present case to remove it from the ambit of these decisions, therefore the surrender must be held to have been a total surrender and to have been effective.
25. The second question is, whether a son adopted after the death of the reversioner in whose favour the surrender was made can challenge that surrender. Upon this point there appears to be no authority. In the absence of authority the question must be considered with reference to the law of adoption in general. An adopted son can challenge any alienation made by the widow without necessity, but it does not follow that necessity is the only validating circumstance. A widow can alienate for necessity, therefore such alienation is valid but any act of a widow which is within her powers under Hindu law would apparently stand on just as good a footing. No doubt the adoption dates back to the death of the father but the adopted son would appear to be bound by acts done by the person in possession of the estate where those acts are within that person's authority! The effect of the surrender by the widow was that the then reversioner took an absolute estate and as the surrender was an act which is by Hindu law within the competence of the widow it is not easy to see any ground on which the adopted son can challenge it.
26. It may further be argued that the effect of the surrender coupled with the death of Rakhma was that the estate vested in the defendant as an estate of inheritance. The general rule is that adoption by a widow cannot divest any estate of inheritance unless the estate is at the time of adoption vested in the adopting widow : Krishnarav v. Shankarrav I.L.R. (1892) 17 Bom. 164.
27. On these grounds I am of opinion that the plaintiff is not entitled to succeed. I would, therefore, reverse the decree and dismiss the suit with costs throughout.