1. The facts material for our purpose in this second appeal are these.
2. It arises from a suit for possession of certain land that once belonged to a joint family consisting of three brothers, Ramrao, Subhanrao and Vishwasrao, They had a step-brother named Ganpatrao, but he was separate from the rest of them. Ramrao died first, and then Subhanrao. The evidence is not as clear as one would like it to have been as to what happened to Vishwasrao. The plaintiffs, who are the descendants of Ganpatrao and are claiming the property as collateral heirs, have alleged in their plaint that he was unheard of. after the death of Subhanrao and had not been heard of for twenty-five years before they brought their suit in 1928. But defendant No.' 4, who is the son of one Vinayak, alleged to be adopted by the widow of Ramrao in 1908, says in his written statement that at the time of his adoption the estate had vested in his adoptive mother Sakhubai. No reference was made to Vishwasrao expressly, but it was clearly implied that at the time of the adoption he was dead ; otherwise of course the estate could not have vested in Ramrao's widow. Not only that, but defendant No. 5, who is both the natural uncle and the tenant of defendant No. 4, has stated in his evidence (exhibit 42) that at the time of the adoption none of Ramrao's brothers was living. The only other piece of evidence is a statement made in the plaint of a previous suit brought by the plaintiffs in 1903 (exhibit 58), to the effect that at the time of the adoption Vishwasrao had become a sanyasi and was civilly dead. The trial Judge has found as a fact that after the civil death of Vishwasrao, the succession to the estate of Ramrao's branch went to the sons of the step-brother Ganpatrao. He has also found that Sakhubai was the widow of Ramrao ' surviving alone in the joint family of Ramrao's branch on the date of adoption '. It may be doubtful whether Vishwasrao was civilly dead or physically dead, but, at any rate, we must take it as a finding of fact based on the admissions of the parties at the trial that Vishwasrao survived Ramrao and Subhanrao and then died before the date of the adoption. According to the finding of the Court of first appeal, the estate remained in the possession of Ramrao's widow Sakhubai, in spite of the adoption, until her death in 1928. The adopted son Vinayak died in the same year, leaving a son defendant No. 4.
3. The plaintiffs then brought a suit to recover possession of the property. Defendants Nos. 1, 2 and 3 are other descendants of Ganpatrao having the same interest as the plaintiffs but made formal defendants. Defendant No. 4, as I have said, is the son of the adopted son. Defendant No. 5 is a tenant. The suit was contested by defendants Nos. 4 and 5 on the ground that the adopted son was entitled to the estate, on the ground of an alleged family arrangement, and on the ground that the adopted son had acquired title by adverse possession.
4. The trial Judge held on the material issues that the adoption set up by the defendants was illegal and invalid, that the alleged family arrangement was not binding on the plaintiffs, and that the plaintiffs and defendants Nos. 1 to 3 would have been entitled to the property as reversionary heirs had their claim been in time. He held, however, that the claim was time-barred and that the defendants had become owners by adverse possession.
5. On appeal to the District Court, the only point argued before the Assistant Judge was that of limitation. On that issue he differed from the trial Court. He held that the defendants had not established adverse possession, that Sakhubai and not the adopted son had been in possession, and that her possession was permissive and not hostile to the plaintiffs, who were entitled to recover the property.
6. In second appeal two points have been argued : (1) that the adoption of Vinayak by the widow of Ramrao was valid, and (2) that the decision of the Court of first appeal on the issue of adverse possession is erroneous.
7. The first point involves some difficult and important questions in connection with the Hindu law of adoption. The adoption was clearly invalid as the law was then understood in the Bombay Presidency. That no doubt was the reason that there was no argument on that issue in the Court of first appeal. But the law of adoption has been materially changed by recent pronouncements of the Privy Council. The principle on which the trial Judge decided that the adoption was invalid, viz. : that ' Sakhutiai's power to adopt was extinguished because the property of the coparcenery of Ramrao's branch vested in others, who could not be divested of the same' is no longer tenable in view of Bhmabai's case Bhimabai v. Gurunathgouda Khandappagouda (1932) L.R. 60 IndAp 25 : 35 Bom. L.R. 200 ; Amarendra's case, Amaren-dra Mansingh v. Sanatan Singh , and the still more recent and so far unreported case, Vijayasingji Chhatrasingji v. Shivsangji Bhimsangji , (since reported).
8. In Amarnadra's case their Lordships have held that ' The foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites ' and that ' in this doctrine the devolution of property, though recognized as the inherent right of the son, is altogether a secondary consideration'.
9. In Vijayasingji Chhatrasingji v. Shivsangji Bhimsangji there is the following passage in the judgment of Sir Shadi Lal. After referring to the doctrine that a widow cannot adopt a son to her deceased husband, if by so doing she would defeat an estate other than her own, and stating that this view cannot now be regarded as a correct exposition of the law, he then proceeds (p. 165):-
As observed by this Board in Amarendra Mamingh's case, the power of a widow to adopt does not depend upon the question of vesting or divesting of the estate. The purpose of an adoption is to secure the continuance of the line, and when the natural son has left no son to continue the line, nor a widow to provide for its continuance by adoption, his mother can make a valid adoption to her deceased husband, although the estate is not vested in her. It was on this ground that the adoption in that case, which was made by a widow after the death of her natural son without leaving a son or a widow, was found to be valid, though the estate had vested in a collateral of the son. In the present case the natural son with his wife having ceased to exist for the purpose of continuing the line in the Ahima family, his mother was entitled to make an adoption to secure that object. The adoption of Mansangji undoubtedly served the purpose in question, and it cannot be impeached simply because it would defeat the estate which had vested in some other person.
It is impossible to hold, therefore, as the learned trial Judge held here that Sakhubai's power to adopt was extinguished merely by the fact that the property of the coparcenary, that is, the property which had formerly belonged to the coparcenery, had vested in Ganpatrao and his descendants. It has been suggested in the argument before us that the principle now laid down by the Privy Council does not operate to empower a widow of a coparcener to adopt to him after the joint family is extinct and after what was formerly joint family property has already passed to a collateral. The argument is based mainly on Chandra v. Gojarabai I.L.R (1890) . 14 Bom. 463. There it was laid down as a rule established by authority in this presidency that ' Adoption by a widow under her husband's authority has the effect of divesting an estate vested in any member of the undivided family of which the husband was himself a member. But it does not divest the estate of one on whom the inheritance has devolved from a lineal heir of the husband.' It was further held as a supplementary addition to the rule that ' the adoption, though authorised by the husband, cannot divest the estate vested in a collateral relation of the husband in succession to some other person who had himself become owner in the meantime.' Now the case referred to in the supplementary rule is precisely the case here on the finding which we must accept, viz., that the last male member of the joint family had died and his estate had passed to his step-brother Ganpatrao before the adoption.
10. Chandra v. Gajarabai was referred to in Bhimabai's case, but distinguished on the facts. It was pointed out that the adoption with which their Lordships had to deal was not made after the extinction of the coparcenar but during its subsistence and therefore the principle of the decision in Chandra v. Gojara-bai did not apply. No comment was made on the principle itself. It may be noted that: their Lordships were not then concerned with any limitation on the power of a widow to adopt other than the alleged requirement of the consent of the coparceners. The limitations on the widow's power to adopt were considered for the first time in any detail in Amarendra's case. It was held there that the power to adopt might be extinguished if there had been a son who himself had a son or left a widow. It was suggested that possibly in some circumstances the mere fact that there had been a son who had attained ' ceremonial competence' might suffice to put an end to the widow's power, but that particular question was left open. In the case with which we have to deal no question of this particular kind arises, for Ramrao died childless. Consequently Amarendra's case is not exactly a direct authority. But the principle that the validity of the adoption depends on spiritual considerations and has nothing to do with vesting or divesting of property is so broadly stated in the two most recent decisions that there seems to be no basis left for the operation of the rule laid down in Chandra v. Gojarabai, if that case be taken to be an authority for the proposition that an adoption in the circumstances referred to is invalid. If the adoption were held to be invalid it could only be on the ground that the estate of the person to whom the adoption was made had already vested in another person, which their Lordships of the Privy Council have clearly held to be an untenable ground.
11. It is by no means clear to me, however, that the Court in Chandra v. Gojarabai really intended to decide or did decide that the adoption itself was invalid. What was held was that the plaintiff was not by virtue of his adoption entitled to oust the defendant from the estate of her husband, that is to say, it was held that the adoption had not the effect of divesting an estate already vested in those particular circumstances, not, I think, that the adoption itself was an invalid one.
12. That an adoption may be legal and valid for the purpose of continuing the line and for spiritual purposes and yet ineffective for the purpose of divesting a vested estate is, I think, indicated by some observations in Sir Dinshah Mulla's ' Principles of Hindu Law ', which may usefully be cited in view of the fact that it was Sir Dinshah Mulla who delivered the judgment in Bhimabai's case, the first of the Privy Council cases in which what I may call, from the Bombay point of view, the new law of adoption has been developed. At page 544, of the 7th Edition, he deals with the topic of ' Divesting of estate on adoption by widow'. He says:- ..when an adoption is made by a widow after her husband's death, it may be that his estate is, at the date of adoption, vested in the widow as his heir or it may be that it has passed to others and vested in them. The question then arises whether the Adopted son is entitled to the estate of his adoptive father in whosesoever hands it may be at the date of adoption The answer is in the negative ; he is entitled to it 'in certain cases only....
What those cases are the learned commentator explains in paragraph 502, which begins at the bottom of the same page. Briefly what he says is that adoption by the widow cannot divest any estate of inheritance, unless the estate is at the time of adoption vested in the adopting widow, either as her husband's heir or as the heir of her son, and if the estate is vested in a person other than the adopting widow, the adoption will not have the effect of divesting the estate. Further he says that if the adoptive father was a member of a joint family -governed by the Mitakshara law at the time of his death, it may be that his interest which passed to his coparceners by survivorship is still vested in them at the date of adoption by the widow, or it may be that it has passed from the sole surviving coparcener on his death to his heirs. It is only in the former .case that adoption vests in the adopted son the coparcenary interest of his adoptive father. It does not in the latter case. That case is further considered in paragraph 506 at page 549. There the learned commentator says that after the joint property has passed by succession from the sole surviving coparcener to his heirs, the adoption is not valid and no coparcenary interest arises in favour of the adopted son, for in all those cases the coparcenary has become extinct and there can therefore be no coparcenary property. One of the authorities referred to for this proposition is the case of Chandra v. Gojarabcd.
13. Now the statement in this latter paragraph that the adoption is not valid seems to me to be inconsistent with the principles which have been now laid down in the most recent cases. But I do not find anything in those cases which is necessarily inconsistent with the proposition that the adoption, though valid, nevertheless does not in the circumstances divest an estate already vested. In my opinion the actual rule laid down in Chandra v. Gojarabai may be perfectly good. It is only the contention sought to be based upon it that the adoption is itself invalid, which in view of the latest pronouncements must be regarded as no longer tenable.
14. A question similar to that which we have to consider in this case recently came before Mr. Justice Shingne in Vishnu v. Lakshmi (1933) 37 Bom. L.R. 193. The facts were that in a joint Hindu family consisting of father and two sons the elder son died leaving a widow ; thereafter the father died, and then the younger son died leaving a widow, who was plaintiff. The widow of the elder son thereafter adopted defendant No. 1. The learned Judge held that the adoption was invalid as the estate of the joint family had already vested in the plaintiff. He followed Chandra v. Gojarabai, which he held is not affected by Bhimabai's case nor overruled by Amarendra's case. With respect, I find myself unable to accept the learned Judge's view that the adoption was invalid. As I have pointed out, the adoption does not appear to have been held invalid in Chandra v. Gojarabai, and to hold it invalid is in my opinion contrary to the principles laid down in Amarendra's case and Vijayasingji's case. On the other hand I entirely agree with the learned Judge that Chandra v. Gojarabai is not affected by the rulings referred to so far as the rule laid down there as to the effect of the adoption upon property is concerned.
15. The result is, therefore, that I think we must hold that the trial Court was-wrong in its view that the adoption of Vinayak by Sakhubai was ah invalid adoption. But practically the result is the same because on the authority of Chandra v. Gojarabai it must also be held that the adoption had not the effect of divesting the estate which had already vested in the plaintiffs.
16. It follows then that the defendants cannot be entitled to this property unless they have established their right to it by adverse possession. That brings me to the second question which has been argued in this appeal. I do not think, it necessary to go into this point at any length. The grounds for the learned Assistant Judge's decision that adverse possession has not been proved were that possession had remained with Sakhubai until her death in 1928, that the adopted son himself was not in possession, and that Sakhubai's possession was-capable of explanation as being with leave and license of the plaintiffs. On this point he says :-
Sakhubai as the widow in a joint Hindu family had the right to continue in possession of the property both in respect of her maintenance as well as her residence ;.. and neither the plaintiffs nor their fathers could remove her or recover possession of the property without making sufficient provision for her maintenance and for her residence. In these circumstances they were perfectly justified in allowing her to continue in possession as the widow in a joint family till her death.
I think that this was a reasonable view to take. Whether Sakhubai was strictly speaking entitled to remain in possession or not, it was perfectly natural in the circumstances that the plaintiffs should allow her to do so. They were not bound to evict her, and the learned Assistant Judge was entitled to infer from the circumstances that her possession was permissive. It was pointed out by the learned advocate for the appellant that there was no issue as to the nature of Sakhubai's possession, and the plaintiffs have not strictly proved that it was permissive. But the burden of proof of course would be on the defendants to show that their possession had been adverse and hostile to the plaintiffs for the necessary period. In holding that they have not proved this the learned Assistant Judge has not, in my opinion, been guilty of any error of law.
17. The result is that the appeal fails and must be dismissed with costs.
18. I agree. I accept the view taken by the trial Court as; regards the death of Vishwasrao before the adoption, and I accept the finding of the first appellate Court as regards the issue of adverse possession. I have no doubt that the plaintiffs were entitled to bring this suit and that it was not barred by limitation.
19. The main questions arising in this appeal are whether the adoption which has been found to be invalid by the trial Court was really valid, and, if so, whether it could have the effect of confirming defendant No. 4 in possession of the property in suit. In holding that the adoption is invalid, the learned trial, Judge has relied upon the case of Shivbasappa v. Nilava I.L.R(1922)47 Bom. 110 : 24 Bom. L.R. 1162. Having found that Vishwasrao was dead at the time of the adoption, he came to the conclusion that the property by then must have vested in Ganpatrao's branch of the family, and that on the authority of Shivbasappa v. Nilava any adoption which would divest an estate which had already vested in others would be invalid. That was undoubtedly regarded as a correct view of the law in the Bombay Presidency at the time when the learned trial Judge pronounced his judgment. But there have been certain recent cases before the Privy Council which have laid down an altogether different principle. It is true that , Shivbasappa v. Nilava has not been quoted in those recent cases and has not been expressly overruled. Nevertheless it was stated in Amarendrd'Mansingh v. Sanatan Singh , for reasons given at great length, that the validity of an adoption must be determined by spiritual rather than by temporal considerations and that the power of a Hindu widow to adopt is not in any way dependent on the vesting or divesting of property. In so far, therefore, as Shivbasappa v. Nilava holds that an adoption is invalid on the ground that the effect of the adoption was to divest property which had already vested in others, it appears that the decision must be incorrect. That this view is correct is strengthened by the still more recent case of Vijayasingji Chhatrasingji v. Shivsangji Bhimsangji , wherein it was laid down in express terms that the principle that a widow cannot adopt a son to her deceased husband if by so doing she would defeat an estate other than her own cannot now be regarded as a correct exposition of the law. If, therefore, the adoption in this case is to be held invalid, it must, I think, be invalidated on some other ground than that relied upon by the learned trial Judge. It was contended by the learned advocate for the respondents-plaintiffs that the case of Chandra v. Gojarabai I.L.R(1890) 14 Bom. 463 has not been overruled in these recent decisions of the Privy Council and is, therefore, still good law. That case laid down the rule that an adoption even when authorised by the husband cannot divest an estate Which has vested in a collateral relation of the husband in succession to some other person who has himself become owner in the meantime. That is the position here. Vishwasrao was the last male holder. He was dead at the time of the adoption and the estate had accordingly vested in a collateral relation of the adoptive mother's husband, i.e. Ganpatrao's branch of the family. The learned advocate, however, relied upon that case as enunciating the principle that any adoption which would have that effect would be invalid. If it can be held to mean that an adoption which had that effect would be invalid, then, with respect, I do not think that it can any longer be regarded as good law in view of the recent decisions of the Privy Council, which, in my opinion, are wide enough to cover every case of this kind.
20. I think that there can be no doubt as to the validity of the adoption in this case. But the effect of the adoption is the other matter in question ; and in this respect I think that the plaintiffs' learned advocate was entitled to rely on Chandra v. Gojarabai. In my opinion what that case decides is not that an adoption which has a certain effect is invalid but that an adoption which might have a certain effect must not be allowed to have that effect. In other words it implies that in certain cases a valid adoption cannot result in property which has already vested in certain persons being divested. It was contended on behalf of the appellant-defendant No. 4 that the recent decisions of the Privy Council deal with cases in which the facts did not differ greatly from the facts of the present case, and that their Lordships apparently acquiesced in the divesting of property already vested as a result of their holding that the adoptions in question were valid adoptions. It does not, however, appear that this aspect of the question was ever expressly before their Lordships, and I do not think that they have really decided that question. I think, therefore, that the, authority of Chandra v. Gojarabai still stands in spite of these recent decisions, because I can see no inconsistency between what that case really seems to me to decide and the questions which were in fact decided by the recent cases of the Privy Council. I may also refer to Vishnu v. Lakshmi (1983) 37 Bom. L.R. 193, in which it was held that the case of Chandra v. Gojarabai was not affected by Bhimabai's case and was not overruled by Amarendra's case.
21. From another point of view also I think that defendant No. 4 cannot be allowed to retain possession of this property. At the time of the adoption the adoptive father's joint brothers were both dead. The coparcenary had become extinct: and there was no coparcenary property in existence at the time of the adoption, and therefore no coparcenary interest would arise at that time in favour of the adoptive son, the father of defendant No. 4.