1. These are two cross-appeals from a decision of the First Class Subordinate Judge at Satara in a suit brought by the plaintiff for a declaration that defendant No. 2 was not validly adopted by defendant No. 1, and for consequential reliefs.
2. The genealogical tree of the family is set out in the print and it appears from it that Appasaheb and Balasaheb were brothers. Appasaheb died leaving a son Tatyasaheb who died about forty-five years ago leaving his son Yeshwantrao and a widow Yesubai, who is defendant No. 1 in the suit. Yeshwantrao died in May 1914, his wife Anusuyabai having predeceased him. Yeshwantrao left a son Shankar who died on May 24, 1914. The plaintiff in the suit is the grandson of Balasaheb, the brother of Appasaheb.
3. The plaintiff's case was that there was no separation in the family, and, therefore, the adoption of defendant No. 2 by Yesubai was invalid as it was not consented to by him, he being the only coparcener in the family. Plaintiff further contended that Yesubai's power to adopt a son to her husband. Tatyasaheb was extinguished in the events which had happened and could not be revived, and on that ground also the adoption of defendant No. 2 was invalid.
4. Several issues were raised and the question of the validity of the adoption was first considered. The learned Judge held on the evidence that the branch of Balasaheb had separated from that of Appasaheb and therefore no consent of the plaintiff was necessary. He further held that the adoption of a son to Tatyasaheb by Yesubai was invalid on the ground that her power to adopt had come to an end. From this decision both the plaintiff and the defendants appeal.
5. The plaintiff's appeal is No. 561 of 1927 and the only point in the appeal is that the learned Judge was wrong in holding that Yesubai's husband had separated from the rest of the family. As regards that appeal Mr. Karandikar who appears for the appellant stated at the outset that he accepted the finding of the learned Judge that the parties were separate and that he does not press the appeal. The result, therefore, is that that appeal would be dismissed.
6. The other appeal by the defendants is No. 36 of 1928, and, as far as I can see, the only question in the appeal is whether on the facts of the case it does not come within the principle laid down by a full bench of this Court in Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 4 Bom. L.R. 315 It is argued by Mr. Koyajee that the facts in the present case differ from those in the full bench case. He further says that the full bench decision went beyond the facts in that case and that the test of determining the validity of an adoption under circumstances such as these is whether by such an adoption the widow divests the estate of any person other than her own. Mr. Koyajee also relies on a decision of a division bench in Narhar Govind v. Balwant Hari I.L.R. (1924) Bom. 559 26 Bom. L.R. 528
7. In Pratapsing Shivsing v. Agarsingji Raisingji (1918) L.R. 46 IndAp 97 21 Bom. L.R. 496 their Lordships of the Privy Council observed that a Hindu widow can exercise a power to adopt which is vested in her so long as the power is not extinguished or exhausted and although her husband's estate is not vested in her. It has been also held by the Privy Council that there is a limit to the period within which a widow can exercise her power of adoption and that once that limit is reached 'the power is at an end.' The question as to when the power is at an end, or when it becomes extinguished and the limit is reached, arose in Ramkrishna v. Shamrao. The judgment of the full bench was delivered by Mr. Justice Chandavarkar who, after considering various authorities, observed as follows (p. 532):-
Where a Hindu dies leaving a widow and a son, and that son 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.
8. The learned Judge also observed on the same page as follows :-
In the view we take of the law as laid down by the Privy Council-viz., that widow's power of adoption comes to an end and can never be revived after the inheritance has vested in some heir of her son other than the widow herself-it is immaterial whether the estate which she takes when the inheritance comes to her after that vesting is absolute or limited.
9. We are bound by this decision, and, taking the principle laid clown therein and applying it to the facts of this case, the position seems to be as follows. Tatyasaheb a Hindu died leaving his widow Yesubai and a son Yeshwantrao. The son Yeshwantrao died leaving a natural son Shankar. Shankar then died and the former widow, that is Yesubai, adopted a son to her own husband. On these facts it is difficult to see how the present case is not governed by the full bench decision. The only distinguishing fact on which Mr. Koyajee relies is that in the full bench case the widow of the son died after him, and in the present case Yeshwantrao's wife predeceased him. That, in my opinion, on principle, makes no difference and does not take away the case from the principle laid down by the full bench.
10. Mr. Koyajee says that the test is whether the adoption divests the estate vested in any person other than the widow. This argument is answered in Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 4 Bom. L.R. 315 In fact the appellant's argument in that case was that a widow can adopt so long as she does not divest the estate which is vested in some person other than herself. Mr. Justice Chandavarkar, with regard to this argument, says as follows (p. 529) :-
That, according to Mr. Chaubal's contention, is the only condition defining the widow's power to adopt, so that whenever, after the estate has become so vested in that person and subsequently in other persons as his heirs, it cornea to the widow herself as his or their heir, her power of adoption to her deceased husband is capable of execution, because in that event she divests no estate but her own. The difficulty of accepting this argument as a correct exposition of the law laid down by the Privy Council in Bhoobun Moyee's ease (1865) 10 M.I.A. 279 and in their two later decisions reaffirming the decision in that case lies both in the language used and the line of reasoning adopted by their Lordships in their judgments in all the three cases.
11. The learned Judge further observed as follows (p, 529):-
If Mr. Chaubal's contention be correct, a widow can adopt without any limit as to the period within which such adoption may be made and her power is never at an end-it is only suspended so long as the estate is vested in others, but directly it comes to her from those others it is revived. The language in the judgment in Bhoobun Moyee's case, however, is so explicit that it is impossible to construe it otherwise than as meaning that there is a limit to the period within which a widow can exercise her power of adoption, and that once that limit is reached the power 'is at an end.'
We agree, therefore, with the division bench of this Court which decided Hasabnis's case, Krishnarav Trimbak Hasabnis v. Shankarrav Vinayak Hasabnis I.L.R. (1802) Bom. 164 that the language of the Privy Council is 'altogether inconsistent with any idea of the right to adopt being merely suspended during the widow's life.' The full bench case was approved by their Lordships in Madana Mohana v. Purushothama Their Lordships observed as follows (p. 161):-
In the present case their Lordships do not consider it necessary to decide whether the document before them can be construed as by its terms enabling a second adoption to be made. For the vital question here is whether after the adoption of Brojo Deo the power still survived in the widow of Adikonda Deo.
When and under what circumstances the authority ceases to be exercisable has been considered in a number of cases both by this Board and the Courts in India. The High Court at Bombay took the view that the power must be looked on as extinguished under analogous circumstances in the case of Ramkrishna v. Shamrao, where Chandavarkar J., delivering the judgment of the Full Bench, examines the authorities closely. Ho interprets earlier decisions of the Judicial Committee as having established conclusively that, quite apart from any question of construction, there is a limit imposed by law to the period within which a widow can exercise a power of adoption conferred on her, and that when that limit is reached the power is at an end. That limit may arise from circumstances such as those already referred to. The authorities on which he founds are the judgment of this Board as delivered by Lord Kingsdown in Bhoobun Moyee v. Ram Kishore and the subsequent judgments in Pudma Coomari Debi v. Court of Wards and Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan
Their Lordships are in agreement with the principle laid down in the judgment of the Full Court of Bombay as delivered by the learned Judge, and they are of opinion that, on the facts of the present case, the principle must be taken as applying so as to have brought the authority to adopt conferred on Adikonda's widow to an end when Brojo, the son she originally adopted, died after attaining full legal capacity to continue the line either by the birth of a natural-born son or by the adoption to him of a son by his own widow.
12. Ramkrishna v. Shamrao has also been recently approved in Bhimabai v. Gurunathgouda (1932) 35 Bom. L.R. 200 Sir Dinshah Mulla, who delivered the judgment of the Board, observes as follows (p. 210) :-
Another argument for the respondent against the validity of the adoption was that if the adoption of appellant No. 2 were upheld, the result would be that while a paternal grandmother could not adopt, a grandaunt could adopt. It is true that Nilkanthagouda having died leaving a son, and that son having himself died leaving a son, Nilkanthagouda's widow could not have adopted a son to her husband. But that is because her power to adopt came to an end the moment Dyamangouda died leaving a son : [see Ramkrishna v. Shamrao.]
13. The full bench decision seems to me to cover the facts of the present case and is a complete answer to the argument on behalf of the appellant. That being the position, I do not think it is necessary to go into the judgment in Bhoobun Moyee's case itself. In my opinion, as this is the only question in the appeal, the appeal must fail. I think the learned Judge has taken a correct view and I see no reason to interfere.
14. The result would be that Appeal No. 561 will be dismissed with costs. Appeal No. 36 also will be dismissed with costs.
15. I agree and have nothing to add.