1. We are of opinion that it is not Within the competence of a wife, according to the Hindu law prevailing in this part of India, to give a son in adoption against the will, express or implied, of her husband, the father of that son. The principal authorities are quoted in the judgment of Sir M. Westropp, C.J., In Narayan v. Nana.7 Bom. H.C. Rep. 153, and Bashetiappa v. Shivlingappa 10 Bom. H.C. Rep. 268. There is a certain degree of ambiguity in the original passage of Manu (ch. IX, 168), arising from the use of singular nominatives with a disjunctive particle along with a verb in the dual; but the two principal commentators, Medhatithi and Kulluka, have both construed the passage as requiring the concurrence of both parents to a giving in adoption. According to Vashista, quoted in the Dattaka Chandrika, a woman is not either to give or to take in adoption without the assent of her husband; and though Dewandha Bhat urges that non-prohibition may constitute assent, he applies this only to the cases of the husband's being dead, or having emigrated, or entered a religious order. The Dattaka Mimansa, which is of high authority on the subject of adoption, allows the father to give in adoption without the assent of the mother, but not the mother to give without the assent of the father. The Vyavahara Mayukha repeats the text: 'Let not a woman give or accept a son without the consent of her husband,' and the Mitakshara is to the same effect. A mother may give a son with her husband's consent during the husband's absence or after his death, though ordinarily he is to be given by the father or by both parents. The absence here contemplated is manifestly not such an absence as is compatible with the interchange of letters by post; it means an absence shutting out the mother from communication when some emergency has arisen which would justify the giving of the son. Even in that case, the Mitakshara and the Mayukha seem to regard the consent of the father as indispensable, though, possibly, the condition of absence in the intended sense may be read grammatically in the Mitakshara as a condition, the satisfaction of which would enable a woman on a proper occasion to act without the express assent of her husband.
2. It would be going far beyond this to allow that a woman may give away her and her husband's only son, while she is on a visit, having the child with her, and while her husband is within reach of communication in a few days by post, not only without his assent but against his will. If his dissent has been expressed, or can be inferred, there is no authority for reducing him through the folly or the caprice of his wife, who may be subjected to very injurious influences, to the painful condition of sonlessness.
3. In the present case the documents Nos. 31and 32 addressed to Gangabai, the intended adoptive mother and to her father and uncle, express in the most emphatic terms and repeatedly that the writer Krishnarav, father of the intended adoptive son, will consent to the adoption only if the assent of the British Government be previously obtained. 'Without the prior order of the British Government,' he says (31), 'you are not to make the adoption, because there have been former wrangles about your estate. Therefore, first get the order of Government, and then do the thing.' The father and uncle of Gangabai are (32) 'to obtain the prior assent of the British Government,' and not 'by proceeding without it to place the boy in a ruinous dilemma.' 'Without the prior order of the British Government,' he repeats, 'do nothing at all, as I have not five or ten sons; only this one.' These letters were received the day before the alleged adoption was carried out. Krishnarav has deposed that he had given permission to his wife Vithabai to give the boy in adoption. His examination contains statements which show that, notwithstanding his respectable social position, he is utterly unworthy of credit as a witness; but, even if any communication had passed orally or by letter between him and Vithabai. on the subject of the adoption, his instructions would be superseded by the letters Nos. 31 and 32 which immediately preceded the adoption. These expressed his will as it existed then. Vithabai was in. the house of her sister Gangabai when they arrived (135, 136), and they were read out at the adoption. She had not, and could not suppose she had, authority after these letters had been received, to give her son in adoption without the condition that Krishnarav had attached to his assent being satisfied. Until assent of the British Government had been obtained, and 'an order issued in the boy's favour as to all the possessions' of the family, his language conveyed an absolute prohibition to the proposed adoption.
4. It, has been contended before us, by Rav Saheb Vishvanath Narayam Mandlik for the respondent, that the condition as to the prior sanction of the Government being but one of three, (the other two being the assent of the family and the approval of the saukars), the other two of which were substantially complied with, a literal fulfillment of it was not to be exacted. If the group of conditions, viewed as a whole, was substantially satisfied, Krishnarav's desire was, it is said, sufficiently fulfilled, and the adoption must be taken to have been made with his assent. It is obvious, however, that he, having a right to impose his own terms, made the prior assent of the Government to the adoption an essential, if not the principal, condition of his own assent. It could not be dispensed with or relieved against. An adoption made in disregard of it was no adoption at all. But his requirement, it is further urged, was grounded on an entire mistake. The estate, having come under the summary settlement, had been reduced to the condition of private property. Krishnarav's principal object had already been attained, and there being thus no necessity to apply to Government for a sanction to the proposed adoption, the condition he had imposed was satisfied, or, being grounded on an erroneous conception, needed not to be satisfied. His assent, free from all conditions, was to be inferred when the condition he had imposed was one of no practical importance. But the only document (225) relating to the summary settlement of the estate dates from 1864. It is not to be supposed that, in the course of the negotiations connected with the adoption, Krishnarav had not become acquainted with it, and the reason he assigns, of family wrangles, might reasonably make him desirous of having the estate secured to his son by an express decision of the Government, even though it had been brought under the summary settlement. There was a part of the estate; too, the patilki inam at least, which was not included within the provisions of the Summary Settlement Act. It cannot then, we think, be assumed, that, even if Krishnarav had known all the facts, he would not still have insisted on his conditions. The important point, however, is, that he did insist on them down to the time of the adoption. They may have been based on erroneous conceptions and groundless fears on his part, but this did not make them less the expression of his present will; The mere fact that a man might have judged more wisely or have obtained more accurate information, does not justify those to whom his permission is requisite for a legal transaction to think and judge for him. His volition and its legal consequences are, in fact, not affected by a mistake under which he may labour. The business of the other parties concerned, is not to supersede but to persuade him. Krishnarav's prohibition, therefore, however ill-founded--the prior sanction of Government having admittedly not been obtained--made all the proceedings in the pretended adoption simply abortive. The claim of the respondent has not been rested on any other ground than that of a joint succession to the estate which, having by his adoption vested in the son of Krishnarav, descended to the respondent and her sister, the appellant, in equal moieties. As the adoption never was valid, Gangabai died sonless, and. the alleged right of the respondent Bhagirthibai, as against her unmarried sister Rangubai, never arose.
5. We must, therefore, reverse the decree of the. Subordinate Judge, with appellant's costs throughout on respondent.