1. This is an appeal by the defendants in a suit to recover possession of certain lands belonging to one deceased Balkrishna. Both the lower Courts have decreed the plaintiff's claim on the ground that he is entitled to the lands by virtue of his adoption made by Balkrishna's widow, Yesubai.
2. The facts as found are that the suit property belonged to Balkrishna who died leaving behind him his widow Yesubai and two sons Anant and Vithal. Thereafter Anant died on October 2, 1901, without leaving any issue, and his widow also died a few days later on the 18th of the same month. About four or five years thereafter Vithal died unmarried, with the result that the only person surviving in the family was the widow Yesubai. She adopted the plaintiff on December 7, 1932, and died on the 18th of the same month. The suit properties were then taken possession of by defendant No. 1, who claimed to be an agnate of Balkrishna. The plaintiff's case is that by virtue of his adoption he was entitled to succeed to the property of his adopted father. He also challenged defendant No. 1 being an agnate of Balkrishna. The defence shortly was that the adoption had not taken place, that if it had taken place, it was invalid on the ground that Vithal had died before Anant, with the result that the last male owner was Anant who having died leaving behind him his widow, the power of Yesubai to adopt had been extinguished and it could not be revived after the death of Anant's widow. That contention has been repelled by both the lower Courts on the ground that Anant died before Vithal and that Yesubai having succeeded as heir to Vithal who died unmarried, her power to adopt was not extinguished.
3. The appellant's argument in substance is that on account of the existence of Anant's widow at the time' of his death, the power of Yesubai to adopt came to an end and once it was extinguished it could not be revived, even though she subsequently succeeded to the property of her own son Vithal. That contention would have been correct if Balkrishna had died leaving only one son Anant. But the existence of the other son, Vithal who survived' Anant, makes a material difference. The daughter-in-law's power to adopt in preference to the widow has been held as good in Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom. 526 in which it was held 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.
There the owner of the property died leaving a widow and an only son. This case has been approved of by their Lordships of the Privy Council in Amarendra Mansingh v. Sanatan Singh . Their Lordships observed on this point that ' the interposition of a grandson, or a son's widow, brings the mother's power to an end but that the mere birth of a son does not do so '. And the reason given was that ' where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone '. This principle would, in our opinion, apply where the owner dies leaving a widow and only one son as was the case in Amarendra Mansingh v. Sanatan Singh. In fact in all the decisions bearing on this point, the owner died leaving a widow and one son only, and the question can arise in that case alone, because so long as the deceased has another son living, there is no necessity for the widowed daughter-in-law to perpetuate the father-in-law's line by making an adoption and her mother-in-law's power to adopt to her husband would terminate only when the duty for continuing the line of the father-in-law devolves on the daughter-in-law as heir of her husband.
4. In the present case after Anant's death Vithal became the sole surviving coparcener of the joint family and it was in his power to continue the line by adoption. No doubt Anant had a widow. But Vithal being alive Anant's widow had no obligation to adopt for perpetuating Balkrishna's line although she might adopt to continue her husband's line. So long as Vithal was alive, Yesubai had also no power to adopt. At. the time of Vithal's death without widow or issue Yesubai was the only person in the family who could continue the line by adoption. The determining point of time; therefore, is the death of Vithal and not when Anant died leaving his widow. As their Lordships observed in Amarendra's case 'if the son died himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during son's lifetime, will revive '. Those observations would apply to the present case. It was Vithal's duty to adopt a son. But he died unmarried and that duty therefore devolved upon his mother, her right to adopt being suspended during the lifetime of her two sons.
5. We think, therefore, that the adoption made by Yesubai is valid and the decision of the lower Court is correct. The decree of the lower appellate Court is confirmed and the appeal is dismissed with costs.