1. [The judgment after setting out the facts proceeded :] It is urged on behalf of the plaintiffs, firstly, that the lower appellate Court made out a new case in appeal and reliance was placed on the rulings in Lala Rup Narain v. Gopal Devi I.L.R. (1909) Cal. 780: 11 Bom. L.R. 833 and Shivabasava bin Amingavda v. Sangappa bin Amingavda and, secondly, that the lower appellate Court ought to have held that the adoption of Ishwargowda had been acquiesced in and its validity could not be impugned after a lapse of more than forty years. On behalf of the respondents it was urged that Ishwargowda with reference to his dealings described himself as Ishwargowda Ningangowda, that the adoption by Somawa with regard to watan lands was invalid under the ruling in Bhimabai v. Tayappa Murarrao I.L.R. (1913) Bom. 598: 15 Bom. L.R. 783, that the onus was on the plaintiffs to prove not only the factum but the validity of the adoption and that Somawa could not adopt as she succeeded to the estate of Mudigowda as the widow of a gotraja sapinda.
2. In Lala Ru Narain v. Gopal Devi and Shivabasava kom Amingavda v. Samgappa bin Amingavda, it was held that a new point which involved the solution of questions depending upon an appreciation of evidence, ought not to be allowed to be raised for the first time in appeal. But, in the present case, it was incumbent on the plaintiffs not only to prove that Ishwargowda was in fact adopted by Gundappagowda, but also that his adoption was valid in order to establish that his rights in the natural family had ceased and he could not act as the manager of the joint family in which he was born. The question of the validity of Ishwargowda's adoption was not only a proper but a necessary issue in the case. The question, therefore, in this case is whether the adoption made by Somawa who succeeded to Mudigowda as a step-mother is valid. The step-mother is not one of the heirs in the compact series, and except in Bombay she has no right of inheritance, and in other provinces she is not even recognised as an heir. See Trevelyan's Hindu Law, p. 374; and Mayne'a Hindu Law, paragraph 566, p. 830; Man v. Chinnammal I.L.R. (1884) Mad. 107, f.b. and Seethai v. Nachiar I.L.R. (1912) Mad. 286. A step mother is not included by the Mitakshara within the term 'mother.' See Mitakshara Ch. II, Section 3, pl. 3. But, although the step-mother could not be introduced as an heir under the in 'mother,' it was held in Kesserbai v. Valab Raoji I.L.R. (1879) Bom. 188 and Russoobai v. Zoolekhabai I.L.R.(1895) Bom. 707 that as the widow of gotraja sapinda of the propositus, and therefore, according to the doctrine of the Mitakshara and the Mayukha, as a gotraja sapinda herself, she could not be regarded as altogether excluded from the succession to her step-son. She was, therefore, allowed to come in as an heir in Bombay on the strength of the cases of Lakahmibai v. Jayram Hari (1859) 6 B.H.C.R.152 and Lallubhai Bapubhai and Ors. v. Manhnvarbai and Ors. I.L.R. (1876) Bom. 388. The stepmother, however, would come in as heir as the widow of gotraja sapinda after the grand-mother, the sister and the half sister. The step-mother, however, stands on a different footing in the matter of partition and is allotted a share. See Mitakshara, ch.I, sec. vii, pl. 1, Gharpure's translation, p. 202; and Mayukha, ch. IV, sec. iv, pi. 15 and 18, Gharpure's translation, p. 57, which refers to the text of Vyasa relating to a share allotted to the step-mother and grand-mother: 'The sonless wives of the father are declared equal sharers; so are all paternal grand-mothers declared equal to the mother.' The right of sharing at the time of partition was not considered by the Madras High Court as a safe ground for concluding that she had any heritable right in the estate of her step-son. See Mari v. Chinnammal I.L.R. (1884) Mad 107, f.b. The right of the step-mother is, however, recognized in Bombay as an heir of her step-son in her capacity of a widow of a gotraja sapinda.
3. In Datto Govind v. Pandurang Vinayak I.L.R.(1908) Bom. 499, s.c. 10 Bom. L.R. 692 it was held that a Hindu widow who succeeded to an estate not her husband's but as a gotraja sapinda of the last male holder under the rule established by Lulloobhoy Bappoobhoy v. Cassibai and in consequence of the absence of nearer heirs, could not make a valid adoption. That case related to an adoption made by a brother's widow. It was argued in Datto Govind's ease that the power to adopt was inherent in every Hindu widow, and the widow of a gotraja sapinda may be temporarily incapable of acting upon it, and that the power to adopt which was in suspension revived when she got the estate of a gotraja sapinda and when her act of adoption would not have the effect of divesting any estate but her own. That argument was not accepted on account of the decision of the Full Bench in Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526: 4 Bom. L.R. 315, f.b. and the decision in the case of Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan (1887) L.R, 141 A. 67. In the present case if Gundappagowda's mother had been living, she would have inherited the estate in preference to Somawa the step-mother, and she could not have made a valid adoption according to the decision of the Pull Bench in Ramkriehna v. Shamrao which has been approved by the Privy Council in Madana Mohana v. Purushothama .
4. It would, therefore, follow, from the decision in Datto Govind v. Pandurang Vinayak, that Somawa, the step-mother, coming in as an heir as a gotraja sapinda, would be incapable of making a valid adoption. The decision in Datto Govind v. Pandurang Vinayak has been followed in Teknath Narayan v. Laxmibai I.L.R. (1922) Bom. 37 : 24 Bom. L.R. 836 where it was held that the decision of the Bombay High Court that the widow of a gotraja sapinda could not adopt so as to defeat the rights at the reversioners has not in any way been shaken by the decision in Yadao v. Namdeo (1921) L.R. 48 IndAp 513: 24 Bom. L.R. 609. The case in Mallappa v. Hanmappa I.L.R. (1919) Bom. 297: 22 Bom. L.R. 203 was the case of a natural mother making the adoption after the death of her son who died unmarried. An adoption can be made to the last male holder and an exception is made in the case of a mother inheriting the property from the son without leaving any son or a widow. In Narhar Govind v. Balwant Hari I.L.R. (1924) Bom. 559: 26 Bom. L.R. 528 it was held that a grandmother could validly adopt when the estate hag passed directly r. from her husband to the grandson and come back to her directly from the grandson without the intervention of any other heir. The exception in the case of a mother to the general rule that an adoption by a widow must be to the last male holder has been extended in favour of the grandmother where the estate has come directly from the grandfather to the grandson and has gone back to the grandmother directly from the grandson without the intervention of any other heir. Some of the remarks in the judgment in Narhar Govind v. Balwant Hari might be construed in favour of the right of adoption by a step-mother, where the estate has come from the father to the son and gone back directly to the step-mother without the intervention of any other heir, but having regard, however, to her right to come in as an heir only as the widow of a gotraja sapinda, we think, we are bound by the decision in Datto Govind v. Pandurang Vinayak based on the Full Bench ruling in Ramkrishna v. Shamrao.
5. We think, therefore, that the adoption of Ishwargowda by Somawa was invalid.
6. It is urged on behalf of the appellants that the lower 'Court ought to have gone into the question whether Gundappagowda gave Somawa authority to adopt after the death of Mudigowda. This point was not urged before the lower appellate Court, and from the circumstances of the case, it appears that Gundappagowda having left a son Mudigowda, it is not likely that he would have authorized Somawa to make an adoption. It is, therefore, unnecessary in this case to go into the question whether Gundappagowda gave any authority to Somawa and whether any such authority would validate the adoption.
7. The argument on behalf of the respondents that the adoption of Ishwargowda by Somawa would be invalid on the ground that the watan property of Gundappagowda would vest in the reversioners and not the step-mother, according to the decision in Bhimabai v. Tayappa Murarrao I.L.R. (1913) Bom. 598: 15 Bom. L.R. 783 cannot be accepted, as the alleged adoption took place in 1879, and the disqualifying Act V of 1886 cannot be given a retrospective effect.
8. On the question of estoppel and acquiescence, the Privy Council in Dhanraj v. Soni Baia : (1925)27BOMLR837 approving of the decision in Gopee Loll v. Mussamut Sree Chundraolee Buhoojee (1872) 19 W.R. 12 held that persons merely represented their conclusions of law as the validity of an assumed or admitted adoption, there was no representation of a fact which would constitute an estoppel under Section 115 of the Indian Evidence Act. No facts have been proved to substantiate the plea of estoppel. Mere lapse of time would not validate an invalid adoption, A long course of recognition and acquiescence on the part of the members of the family and peraon3 acquainted with the facts may give rise to an inference that conditions relating to the adoption were duly fulfilled. It is clear from the evidence in the present case that Ishwargowda retained his natural father's name and described himself as Ishwargowda Ningangowda, and always acted as the manager'of his natural family till his death.
9. We, therefore, think that the adoption of Ishwargowda by Somawa was not valid, and that Ishwargowda remained in the natural family and acted as the manager of the plaintiffs' joint family and the sale-deed was binding on the present plaintiffs.
10. We would, therefore, dismiss this appeal with costs.
11. The point in this appeal is one of Hindu law. The plaintiff sued to redeem a mortgage deed of 1878 passed by Ningang the father of plaintiff No. 1 and grandfather of plaintiffs Nos. 2 and 3. Ningangowda had a son Ishwargowda who died in 1994. In 1880 he sold one of two mortgaged lands to the mortgagee and got back the other land from him free from the mortgage. This plaintiff sued to redeem and recover possession of the other number on the ground that Ishwargowda was adopted prior to 1880 by Somawa the widow of Gundappa-gowda of Bhagwa 1 in the Sangli State and consequently had no authority to deal with the property of his natural father.
12. The lower appellate Court found that the adoption was proved, but is invalid under the Hindu law and consequently Ishwargowda must be deemed to have remained in his natural family, and so he had authority to sell or mortgage the survey number now in dispute and he was the manager of the family and the transaction his for the benefit of the family. The suit was consequently dismissed.
13. It has been contended appeal that this was a case not made out by either party and that the lower appellate Court had no authority to make it. In the present case, however, there is now no dispute as to the facts connected with the adoption and this being so, the Court is bound to hold the adoption invalid, if it was as a matter of fact invalid under the Hindu law, irrespective of whether the parties put forward the case of in-Validity or not. The Court is bound to apply the law to the facts proved or admitted whatever the case of the parties may be.
14. The facts of the adoption are that Gundappagowda of Bagwad had two wives, Chanbasava and Somawa, He died leaving a son by Chanbasava named Mudigowda. Mudigowda died in 1876 unmarried, and his mother Chanbasava having predeceased him, his step-mother Somawa succeeded to the property. She subsequently adopted Ishwargowda.
15. The lower appellate Court holds that Somawa who was Mudi-gowda's step-mother succeeded as his father's widow, and as such as the widow of his gotraja sapinda and consequently she could not make a valid adoption to her husband under the rulings in Datto Govind v. Pandurang Vinayah I.L.R. (1908) Bom. 499,: 10 Bom. L.R. 612 and Yehnath Narayan v. Laxmibai I.L.R. (1922) Bom. 37 : 24 Bom. L.R. 836. It has been contended that these cases are not on all fours with the present case, but they lay down the principle that a widow who succeeds to an estate not her husband's, but as a gotraja sapinda of the last male holder cannot make a valid adoption to her husband. It is clear that Somawa succeeded to her step-son as the widow of a gotraja sapinda (vide the Table in Section 51 of Mulla's Hindu Law, where the step-mother appears at serial No. 27). Consequently on the authority of the above quoted cases she cannot make a valid adoption. The case would have been different if Somawa had been Mudigowda's mother.
16. The learned pleader for the appellants has tried to extend the analogy of the mother in similar circumstances to the stepmother, but there is no warrant for doing so. The step-mother succsedad on a different principle. It is not alleged that Gundappagowda gave Chanbaaawa authority to adopt and as he died leaving a son no such authority could be presumed. The lower appellate Court has found as a fact that the adoption is not in the dvyamuahyayana form so that question does not arise. The fact that the adoption was recognized and acted upon cannot make that which was invalid under the Hindu law, valid.
17. In these circumstances the view taken by the lower appellate Court appears to be correct and the appeal is consequently dismissed with costs. Appeal dismissed.