1. One Adesang Himdas died in 1892 after making a will. He left two widows; and some months after his death one of the widows gave birth to a posthumous son, who died less than two years later. Adesang also left two daughters, Bai Suraj and Bai Mongh. By his will he provided that his property should go to his daughters unless a posthumous son were born to him. He had been predeceased by a divided brother Jijibhai, who at his death left a widow Bai Sada and also a daughter Bai Chanda. The present plaintiff is Bai Chanda's grandson, and he was adopted by Bai Sada to her husband Jijibhai on December 4, 1938. In 1897 Bai Sada' relinquished all her husband's property in favour of her daughter Bai Chanda. In 1937 Bai Mongh, who was then the survivor of the two daughters of Adesang, surrendered the properties in suit to the defendant. Those properties are admittedly the ancestral properties of Adesang, and by a custom relating to bhag properties in the Broach district the preferential heir to such properties after the death of Adesang's posthumous son would be not Adesang's daughters but Bai Sada, the widow of Adesang's brother, who was the posthumous son's uncle. Some months after the surrender of the suit properties by Bai Mongh, Bai Sada relinquished to the defendant (who admittedly is the nearest reversioner after the death of Bai Sada) any interest that she might have in those properties, assuming that she had any interest at all. The deed recites the consideration of Rs. 600, but the defendant says that there was no consideration in fact. On the same day the defendant executed a lease of part of the property for 999 years to the brother of the plaintiff, and shortly afterwards he executed a release in favour of Bai Chanda of any right that he might have to the property of Jijibhai which Bai Sada had surrendered to Bai Chanda in 1897.
2. The plaintiff by virtue of his adoption has sued for the possession of Adesang's property now in the hands of the defendant as the result of the release deeds executed by Bai Sada and Bai Mongh. He said in his plaint that Bai Mongh had no right to any of the property, since it was ancestral property and Adesang had therefore no right to make a will; and assuming that he had the right to make a will, the will itself displaced Bai Mongh in the event of a posthumous son being born. Apart from, the will he contended that Bai Mongh had no right to the property by reason of the local custom which I have mentioned. He then said that the surrender or relinquishment by Bai Sada in favour of the defendant was illegal on various grounds. In the written statement various defences were taken; one was that the adoption was invalid and in any case would be powerless to divest property which had already vested, the adoptive mother being the widow of a gotraja sapinda; another was that Bai Suraj and Bai Mongh had become owners of the property by adverse possession if not as actual heirs, and the custom which would make Bai Sada a preferential heir was denied. The trial Court held that the adoption was valid but that it could not affect the interest of the reversioner. Relying however upon the decision in Shivappa v. Kariyappa (1938) 41 Bom. L.R. 208 and thinking that to be the effect of the decision, the learned Judge allowed the plaintiff to dispossess the defendant for the period of Bai Sada's lifetime, apparently on the view that the plaintiff acquired his mother's rights in a limited estate. The defendant now comes in appeal.
3. The main contention argued on behalf of the defendant in the appeal is that whatever may be the defendant's position with regard to this property and even if his possession of the property be wrongful, the plaintiff merely by reason of his adoption has no right of suit against the defendant. His learned counsel relies upon the decision of a full bench of this Court in Radhabai v. Rajaram (1937) 40 Bom. L.R. 559. and on a later decision Subrao Baji v. Dada Bhiwa (1940) 43 Bom. L.R. 492 which disapproved of 'the decision relied upon by the trial Court in Shivappa v. Kariyappa. In the first of these cases the Court reaffirmed the principle that an adoption made when a coparcenary is at an end cannot divest property which has already vested in or through the heir of the last holder, and this principle was extended so as to decide that a widow of a gotraja sapinda who succeeds to property as such cannot by an adoption alter after her own death the devolution of that property to which she became entitled as the widow of a gotraja sapinda, This case was considered by Mr. Justice Divatia sitting alone in Shivappa v. Kariyappa (1938) 41 Bom. L.R. 208. That was a case where the property had been alienated and the contest was between the adopted son and the alienee, and the learned Judge thought that this distinguished the case from the earlier case decided by the full bench, and that the adopted son could succeed to the property. He also took the view that the widow of a gotraja sapinda succeeding as an heir holds the same position as her husband would have held with respect to the property; in other words she inherits the right of her husband, and on adoption she. therefore divests herself of that estate also just as she would divest herself of her husband's personal estate upon adoption. In other words there is no real difference between her husband's estate and the estate of the gotraja sapinda so far as the adopted son is concerned; each estate must be taken to be the estate of her husband as at the time of the adoption, and the adopted son therefore would take them both. But in the later decision of a bench of this Court in Subrao Baji v. Dada Bhiwa it was thought that the distinction sought to be made between the last two cases was unsound, and it made no difference whether the contest was between an adopted son and the reversioner or the adopted son and an alienee; in neither case would the person who had a right of suit with respect to the property of a gotraja sapinda gone to a widow by inheritance be the adopted son, and the principle was again reaffirmed that the widow of a gotraja sapinda cannot by an adoption alter the order of inheritance of the property and deprive the reversioner of his rights, whether vested or contingent.
4. In this case the trial Court has given the plaintiff a decree for the lifetime of Bai Sada as if the plaintiff were suing as the adopted son of Bai Sada rather than of her husband Jijibhai and as if by an adoption an adopted son necessarily took the estate of his adoptive mother. But even the decision in Shivappa v. Kariyappa relied upon does not go as far as this; the reasoning was to the exact contrary, namely that the estate was to be regarded as the estate of the widow's late husband and that what the adopted son took on adoption was the estate of his father. The idea of an adopted son taking his adoptive mother's life interest in an estate is an idea entirely unknown to Hindu law. Whatever estate an adopted son acquires on adoption it is an absolute estate, and any suit that he brings with respect to the property claimed must be brought upon that footing. But when he is adopted by the widow of a gotraja sapinda he cannot brine a suit on that footing because an adoption by the widow of a gotraja sapinda will not alter the order of inheritance of the property. The only possible conclusion is that it is not open to the adopted son to sue at all in respect of property which has gone to his adoptive mother as the widow of a gotraja sapinda.
5. We were referred by the plaintiff's learned counsel to Rajah Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya ., where an adopted son sued his adoptive mother for property which she had inherited before the adoption from her natural son. The principal question for decision was the validity of the adoption, and it was held that the adoption was valid. The fact that the adopted son was allowed to take the property does not establish the contention now put forward that an adopted son in every case takes the estate of his adoptive mother. In that particular case he did take it; but he did not take it qua the estate of his adoptive mother. Whenever an adoptive son takes property by virtue of his adoption, what he takes is the property of the last male holder; and although the widow had inherited the property from her son, what the adopted son took in Rajah Vellanki v. Venkata Rama was in fact the property of the last male holder. This case is of no help to the plaintiff, who on the authorities is excluded from the properties of the last male holder; it does not show that he can acquire them by the expedient of divesting his mother of her limited estate in them. Thus the plaintiff has no right to sue, and it is not necessary to consider the other defences to the suit. They have been briefly touched upon by the defendant's learned counsel, but they have not been discussed in the reply from the other side.
6. But on behalf of the plaintiff it is suggested that if it is found that the plaintiff has no right of suit, then this Court should allow Bai Sada to be substituted for him as plaintiff and the plaint to be suitably amended. We think it impossible to consider such a suggestion. The entire nature of the suit would be changed ; the cause of action would be changed; the relief's would be changed. It may be that the institution of the suit in its present form by the present plaintiff is due to an honest mistake as to his true legal position, but that is no reason why we should allow the whole matter to be gone into again by an amendment of this kind when the suit has failed.
7. The appeal must be allowed, and the suit must be dismissed with costs throughout.
8. The law as to adoption by widows of gotraja sapindas is laid down in Radhabai v. Rajaram (1937) 40 Bom. L.R. 559. and Subrao Baji v. Dada Bhiwa (1940) 43 Bom. L.R. 492. The adoption is valid for religious purposes, but it does not affect rights to property either vested or contingent.
9. The defendant in this case claims a vested right both as transferee from Bai Mongh (who according to him had acquired title by adverse possession) and as transferee from Bai Sada the nearest heir. If either of these alternative claims is good, the defendant's rights are manifestly unaffected by the adoption of the plaintiff. The learned trial Judge has come to the conclusion that Bai Mongh was not the owner, and the defendant acquired no interest by reason of the transfer from her. It has also been held that there was no valid transfer or surrender by Bai Sada. These points are not altogether free from doubt. This part of the case has not been fully argued, and as it is not necessary for the purpose of the appeal, we express no opinion.
10. Assuming for the sake of argument that the defendant has not a vested but only a contingent right in the estate, there is great force in the argument of the learned counsel for the appellant that the decree awarding the plaintiff possession during the lifetime of Bai Sada is really an infringement of that right. The learned trial Judge has professed to follow the decision of Mr. Justice Divatia in Shivappa v. Kariyappa (1938) 41 Bom. L.R. 208. He has not really done so, for Mr. Justice Divatia there held that the adopted son got an absolute estate displacing the widow's estate, whereas the trial Judge here has held that the plaintiff is entitled merely to the widow's limited estate.
11. In view of the decision in Subrao Baji v. Dada Bhiva, Shivappa v. Kariappa cannot be regarded as good law. The adopted son certainly does not get an absolute estate, which would obviously defeat the rights of the reversioner. But unless the plaintiff gets an absolute estate as the son of Jijibhai thereby displacing Bai Sada, he gets no estate at all. He is merely the son of a woman who has a widow's estate. The adoption does not operate as a transfer of that estate to him, a woman cannot adopt a son to herself, Bai Sada might have alienated her estate to the plaintiff and it would have been valid for her lifetime. But she has not done so. What she did do or purported to do was to alienate the estate to the defendant.
12. Rajah Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya , which was cited by the learned counsel for the respondent, seems to me to have no bearing on the present case. Because a son who gets the estate of the last male holder divests the estate of his adoptive mother, it does not follow that an adopted son who does not get the estate of the last male holder must necessarily divest the estate of the widow and step into her shoes. I agree that the suit fails and must be dismissed.