Norman Macleod, C.J.
1. The genealogy of the parties in this appeal is as follows:-
=Lakshmi (Def. 1)
(adopted) Maruti (died) Gulabrao
=(1) Putala (died) (adopted)
=(2) Manjula (died) (Def. 2.)
Gopal and Kesu, the sons of Babaji, were divided. The plaintiff in this case is the grandson of Gopal. Kesu died leaving a widow Lakshmi, the first defendant, and a son Maruti. Maruti had two wives, but both died before him, so that on Maruti's death his mother Lakshmi succeeded to him as his heiress. Subsequently she adopted the second defendant. The plaintiff seeks to obtain a declaration that the second defendant is not a validly adopted son of the first defendant. The trial Judge said:-
As Maruti left no widow or issue, the defendant No. 1 bad authority according to Hindu law to adopt a son to her husband. I therefore find the third issue in the affirmative.
2. The appellate Judge considered himself bound by the authority in Madana Mohana v. Purushothama . and consequently, held Lakshmi's power of adoption had come to an end on the ground that Maruti had attained full legal capacity to continue the line, either by the birth of a natural born son or by the adoption to him of a won by his own widow. On a careful consideration of the judgment in that case, it seems to me that the question now in issue was not decided, for, in that case admittedly Brojo Kishore left a widow, and consequently, his estate would go to her and not to his mother.
3. The point in issue was decided in Venkappa Bapu v. Jivaji Krishna. I.L.R. (1900) 26 Bom. 306; 2 Bom. L.R. 1101. The head-note runs:-
A mother succeeding as heir to her deceased son who has left neither widow nor issue, is competent to adopt, notwithstanding the fact that her deceased son bad attained ceremonial competency by marriage, investiture or otherwise before his death.
4. So that the plaintiff's adoption was valid inasmuch as it only affected the mother's interests, and did not affect the vested rights of others.
5. In Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom. 526; 4 Bom. L.R. 315. the converse was held, namely, that:-
Where a Hindu dies, leaving a widow and a son, and that son himself 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.
6. The opinion expressed by the Court in that case appears to be obiter as the point in issue was whether, where a Hindu grandmother succeeds as heir to her grandson who had died unmarried, her power to make an adoption was at an end. However the principle laid down by Chandavarkar J. with regard to the case of a Hindu dying leaving a widow and a son was approved of in the case mentioned by the learned appellate Judge, viz., Madana Mohana v. Purushothama .
7. In the Privy Council case of Verabhai Ajubhai v. Bai Hiraba I.L.R. (1903) 27 Bom. 492; 5 Bom. L.R. 534 a Hindu died leaving a widow and a son, who died between fifteen and sixteen years of age and unmarried. The widow then adopted a son to her husband, and it was held that the adoption was valid. But the question did not arise how the case would have stood if it had been proved that the son had attained ceremonial competence. Their Lordships said that that question might be open to controversy, and they saw no reason for pursuing the inquiry.
8. In Madana Mohana v. Purwhothama, it is clear that Brojo Kishore left a widow, and the passage in the judgment, which I think might give ri.se to some difficulty, is as follows:-
That widow was not a party to the suit, and, whether ov not she had power to adopt to Brojo it has not been established against her that she had no such power. Their Lordships think it right to draw attention to this circumstance, but they do not desire to be understood as saying that even in its absence the succession of Brojo and his dying after attaining full legal capacity to continue the line would not in themselves have been sufficient, to bring the limiting principle into operation, and so to have so determined the authority of Adikonda's widow, who was not the widow of the last owner and could not adopt a son to him.
9. Although obiter it is suggested in the last edition of Mayne, p. 154, that that passage left no doubt what their Lordships view would have been if Brojo Kishore had died having attained full legal capacity to continue the line (by which I presume that their Lordships meant his being capable of begetting a son). The case came from Madras and the circumstances to which their Lordships thought it right to draw attention was the existence of a widow with a power to adopt and the word 'absence' refers to the power and not to the widow. Whether the son's widow has or has not a right to adopt, the decisive factor is her survival of her husband and the vesting in her of a life estate in her husband's property. Whether the son has attained ceremonial competence or was capable of begetting a son would only be matters of importance as affecting his mother's right to adopt if he died unmarried or if his wife predeceased him, and with all due respect to the learned editor of Mayne, in my opinion these questions in this presidency have remained beyond controversy since the decision in Venkappa Bapu v.Jivaji Krishna I.L.R. (1900) 25 Bom 300, 2 Bom. L. R 1101, the correctness of which has never been disputed in this Court and has not been in any way disturbed by the obiter dicta in Madana Mohana v. Purushothama. It seems to me that we must follow the ratio decidendi in the judgment of Mr. Justice Ranade at p. 312, where he discusses whether the attainment of ceremonial competence of a son could affect the rights of his mother to adopt in case he died without leaving a son or a widow:-
The limitation on the widow's powers has reference more to the ceremonial law than to the civil law as administered by the Court, and the whole current of recent decisions has been to base this limitation solely on the question whether the widow's act of adoption derogated from her own rights or the vested rights of others. The vested rights of no other relations were affected by Tulsava's adoption of the plaintiff.
10. I think, therefore, this appeal must he allowed and the suit must be dismissed with costs throughout.
11. I agree. I desire to make it clear that Gopal and Kesu were divided, and that the contention of the plaintiff is that the mother had no right to adopt after the death of her son, Maruti, as he died after attaining the age of ceremonial competence and after he was married. ' It is found in the case that Maruti'a wives predeceased him, and when Maruti died there was no nearer heir to him than his mother. Lakshmi inherited Maruti's estate as his mother and afterwards adopted defendant No. 2. An adoption effected by the mother under such circumstances according to the decisions of this Presidency is valid. (See Gacdappa v. Girimallappa I.L.R. (1894) 19 Bom. 331. Sangapa v. Vyasapa (1896) P.J. 528. and Venkappa Bapu v, Jivaji Krishna I.L.R. (1900) 25 Bom. 306, 2 Bom L.R. 1101,). It is quite true that in Verabhai Ajubhai v. Bai Hiraba I.L.R. (1903) 27 Bom. 492, 5 Bom. L.R. 334, P.c. this question as to the power of the mother to adopt after the son had attained the age of ceremonial competence was raised, but their Lordships of the Privy Council did not decide that question; and it may be said that in fact there is no decision up to the present day in which the power of the mother to adopt after her son's death when the son has left no nearer heir than herself, has been held to come to an end in consequence of the circumstance that at the time of his death the son had attained the age of ceremonial competence or was marrried. The observations of their Lordships of the Privy Council in Madana Mohana v. Purushothama , relate to a different state of facts. In that case it is clear that the son had left a widow, and it is not disputed, and cannot be disputed, that if the son leaves a widow or any other heir except the mother, then the power of the mother to adopt would come to an end. These observations do not suggest, in my opinion, that if the son had attained the age of ceremonial competence or was married before his death and if the mother inherited his estate, the mother would not be competent to adopt or that in such a case the ower of the mother to adopt would come to an end. In the absence of any decisions to the contrary, it seems to me that the view taken by Mr. Justice Eanade in Venkappa Bapu v. Jivaji Krishna that the mother is entitled to adopt, when the son has died without leaving any other nearer heir even though he may have attained the age of ceremonial competence and may have been married before his death, must be accepted.