Norman Macleod, C.J.
1. The plaintiff in this case is the widow of one Malgauda who died of plague on the 29th November 1915, and sues to recover possession of her husband's property against the first defendant who claims to be the adopted eon of Malgauda. Various objections have been raised to the adoption, first, that Malgauda having lost his brother Appu a few days previous to the data of the adoption was in mourning, and was, therefore, incapable of performing any religious ceremony; secondly, that the adopted son was the son of Malgauda's sister, and therefore could not be adopted; thirdly, that the adoption did not take place at all, although it had to be admitted that an adoption deed was executed and registered.
2. On the 14th December 1915, the plaintiff made a petition to the Mamlatdar to have her name inserted in C and D Registers since her husband had died a fortnight back. In that petition she said that there were factions in the village, and therefore, the village officers might enter any other name. But, on the 6th January 1916, she made a petition to the Collector admitting the adoption and requesting the first defendant's name to be entered in the Revenue Registers in place of the deceased Malgauda.
3. On the 7th January 1016, she was examined in connection with her petition and Varsa proceeding. She admitted the whole story which she now denies in the suit. The passing of orders on this petition was unfortunately delayed, so that the plaintiff for some reason or other made up her mind to dispute the first defendant's adoption.
4. On the 6th June 1916, she made a petition to the Collector saying that her husband did not adopt according to caste rites and customs, and that he could not adopt that boy according to Shastras. But she did not deny the fact that her husband had adopted the first defendant.
5. She was examined on 14th June 1916 when she pleaded that her previous, statements had been made under coercion and threats; and for the first time she alleged that the first defendant was not present when he was alleged to have been adopted.
6. At the outset we are met with the question whether a widow could be allowed to dispute an adoption made by her husband. In Bhau v. Narasagauda : (1921)23BOMLR1272 the plaintiff claimed as the adopted son of one Adgauda. He had been adopted by Adgauda's widow. The defendant was the son adopted by Adgauda in his life-time. Mr. Justice Shah at p. 1275 says:
Assuming, without deciding, that the adoption of defendant No 1 by Adgauda was invalid, the question is whether Sitabai, the widow of Adgauda, could make another adoption to her husband during the life-time of the boy adopted by her husband. The point is one of first impression. No reported precedent on the point has been cited to us : and it must be considered in the light of the power, which the widow has in this Presidency to adopt, in the absence of any prohibition expressed or implied by her husband. It seems to me clear that the widow is bound by the act of her husband and to accept all the implications of an adaption by him valid or invalid. In spite of the liberal interpretation of her powers to adopt in this Presidency, I do not think that the Hindu law contemplated, and certainly it has not provided, that the widow could practically ignore and supersede her husband's act of adoption. There is no authority for it: and I think that the general effect of the Hindu law of adoption is against such a power. Even an invalid adoption may become effective under certain conditions : and the wife-or rather the widow-cannot go against her husband's wishes so unequivocally expressed or treat the adoption by her husband as non-existent.
7. And at p. 1278 the learned Judge concludes:
It may appear somewhat anomalous that the widow should not be allowed to tread as non-existent an adoption by her husband which is invalid. But I do not think that there is anything anomalous in the widow being required to accept the act of adoption by her husband with all its implications at least so far as she herself is concerned.
8. It seems to me that an adoption by the husband whether valid or invalid would stand on much the same footing as a will, so that it would be considered as an implied prohibition against the widow adopting after the death of her husband. It was contended for the appellant that those remarks of the learned Judge were obiter, but they were directly in point, as they dealt expressly with the widow's power to adopt the plaintiff against the adoption by her husband, and if it could be said that the husband had impliedly prohibited an adoption by his widow by his having adopted in his life-time, it would necessarily follow that the validity of the plaintiff's adoption by the widow was directly in issue.
9. It does not seem necessary, therefore, to consider the other points which were raised in this case. But with regard to the factum of the adoption, all the evidence seems to point to the fact that it actually did take place, and that the suggestion by the widow seven months later that the adopted boy was not in Belgaum, when it was alleged he was adopted, must beconsidered as a desperate attempt to get rid of the first defendant's claim to succeed to Malgauda. There are several witnesses who deposed that they were present at the adoption and that the first defendant was adopted. If the plaintiff really thought that the first defendant was not present she would have made that allegation at once instead of waiting for seven months when she felt the necessity, if she wished to succeed to her husband's estate, of proving some fact which would put an end to the claim of the first defendant.
10. On the question whether amongst Jains the adoption of a sister's son is invalid, no doubt there is no judicial decision to the effect that Jains do not observe the same law as the regenerate classes. Therefore, if the question had to be decided in this case evidenee would have to be led to prove the custom that the adoption of a sister's son amongst Jains is acknowledged.
11. Then on the question whether Malgauda could not have adopted owing to his being in mourning, we have been referred to no direct authority on the question. But it is argued that as Malgauda was in mourning, he was not competent to perform any religious ceremony, and therefore, could not adopt. But the evidence certainly points to the fact that amongst Jains adoption is not looked upon in the same way as amongst the regenerate classes, and that adoption is really more a secular than a religious ceremony. The appeal, therefore, must be dismissed with costs.
12. I agree in holding that this appeal must fail. In Bhau v. Narasagauda : (1921)23BOMLR1272 which was a case decided by a Division Bench of this Court. Mr. Justice Shah observes at p. 1276 : 'It seems to me clear that the widow is bound by the act of her husband and to accept all the implications of an adoption by him valid or invalid.' I am bound to respect this opinion as coming from a learned Hindu Judge. I do so the more readily because we are in this case dealing with an adoption by a Hindu of his sister's son ; and it is matter of common knowledge that in the Bombay Presidency adoptions of daughter's sons and sister's sons are not uncommon. For this proposition we have the high authority of Mr. Mandlik who in his Vyavahara Mayukh, Part II at p. 493, observes :
I must note that the existence of a time-honoured custom, allowing the adoption of a dauhitra (daughter's son) or bhagineya (sisters's son) is testified to in distinct terms by the Dvaita Nirnaya and the Vyavahara Mayukh and also impliedly by Krishna Bhatta. I have made special inquiries on the subject, and I have no hesitation in stating that in this Presidency such adoptions are common, and not the slightest taint attaches to them on account of such relationship.
13. Special usages in favour of adoptions of daughter's sons and sister's sons have, moreover, been judicially recognised in some of the Districts of this Presidency. I need only refer to the judgments of Candy J. and Fulton J. in Manjunath v. Kaveribai (1902) 4 Bom. L.R. 140.
14. For these reasons I agree in holding that it is not competent to the plaintiff, who is the widow of Malgauda, to seek to set aside the adoption made by her husband.