1. This second appeal raises a very short and interesting question relating to the Hindu law of adoption. One Bhau Balvadkar died in 1932 leaving his widow Manjulabai and two sons Kushaba and Lahu. Bhau and his two sons constituted a joint Hindu family. Kushaba was married to Changunabai who is the defendant in the suit, Kushaba died on November 13, 1933, and Lahu died two days thereafter. On the death of Lahu, the joint family came to an end with the death of the last co-pafcener and Manjulabai inherited the property as the heir of Lahu. Manjulabai adopted the plaintiff on December 14, 1934, and the plaintiff filed the suit for a declaration that he was the lawfully adopted son of Bhau Balvadkar and for an injunction restraining the defendant Changunabai from interfering with the possession of Bhau's property.
2. The question that is raised in this second appeal is whether the adoption of the plaintiff by Manjulabai was a good and valid adoption. It is contended that as on the death of Lahu there was the widow of a son of Bhau in existence, the power to adopt of the mother had come to an end and the only person who can adopt is the widow of Kushaba, namely, the defendant. For this proposition reliance is placed on the full bench decision in Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom. 526 . In that case the Court consisting of Mr. Justice Fulton, Mr. Justice Crowe and Mr. Justice Chandavarkar 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. It is to be noted that in Ramkrishna v. Shamrao the Hindu had died leaving an only son and a widow, and what the Court held was that on the death of the son it was the duty of the widow of the son to continue the line for spiritual purposes and the power of the mother had come to an end. In the case before us the facts are very different. We have here Bhau dying leaving two sons. On the death of Kushaba on November 13, 1933, there was no duty cast upon his widow, the defendant, to continue the line of Bhau for spiritual purposes because Lahu was still alive and the duty would be on him as the son of Bhau to continue the line. The question that really arises for determination is whether on Lahu's death the duty to continue the line was on Kushaba's widow or on his own mother Manjulabai. If Mr. Desai's contention were to be accepted, it comes to this : that on Lahu'sdeath the duty to continue the line for spiritual purposes was on his brother widow and not on his own mother. That is a proposition which it is difficult to accept in the absent of any authority On the contrary there is a recent decision of our own Court in Anant Govind v. Dnyaneshwar Balkrishna (1943) 46 Bom. L.R. 353 which has taken a contrary view. In Anant Govind v. Dnyaneshwar Balkrishna the property in dispute belonged to one Balkrishna, who died leaving him surviving his widow Yesubai, and two sons Vithal and Anant. Anant, the younger son, was married to Sunderabai, but had no issue. Anant died on October 2, 1901, and Sunderabai died on October 18, 1901. Vithal died unmarried four or five years afterwards. The mother Yesubai adopted the plaintiff on December 7, 1933. The adoption was challenged on the ground that Balkrishna having a son Anant and Anant having died leaving a widow, the power of the mother Yesubai to adopt had come to an end and the power to adopt was vested in Anant's widow. That contention was negatived by Mr. Justice Divatia and Mr. Justice Sen after considering the decision in Ramkrishna v. Shamrao. Mr. Desai has pointed out one distinguishing feature in the case decided in Anant Govind v.Dayaneshwar Balkrishna and that distinguishing feature is that when Vithal died his brother's widow Sunderabai was also dead, and it is sought to be argued that the reason why the Court held that the mother had the power to adopt was because there was no brother's widow in existence who could exercise the power of adoption. In my opinion that fact does not really in any way detract from the principle that has got to be deduced from the decision in Anant Govind v. Dnyaneshwatr Balkrishna; and as pointed out by Mr. Justice Divatia at page 355, 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. Although Anant had a widow, Vithal being alive Anant's widow had no obligation to adopt for perpetuating Balkrishna's line. Similarly here on Kushaba's death although he left a widow, there was no obligation on her to adopt for perpetuating Bhau's line as Lahu was then alive. As pointed out in Amarendra Mansingh v. Sanatan Singh it is, only the interposition of a grandson or a daughter-in-law that extinguishes the power of the mother to adopt. Now that test has got to be applied when Lahu died on November 15, 1933. Lahu neither left a son nor a widow and there being no interposition, as far as Manjulabai was concerned, of a son or a widow of Lahu, Manjulabai's power to adopt was not extinguished nor did it come to an end. To my mind the fact that at the time of Lahu's death another daughter-in-law was in existence is irrelevant. Again at p. 256 their Lordships of the Privy Council observed :
But if the son die himself son-less and Unmarried, the duty will still be upon the mother;, and the power in her which was necessarily suspended during the son's life-time will revive.
Therefore on, Lahu dying son-less and unmarried, the duty was upon his mother and not upon his brother's widow.
3. The lower appellate Court took the view that the adoption was bad mainly relying on the-decision in Ramkrishna v. Shamrao. Unfortunately at the time the decision was given, Anant Govind v. Dnyaneshwar Balkrishna had not been decided and, therefore, the learned District Judge had not the benefit of considering that case. It is idle to speculate whether the decision of the learned District Judge would have been the same if he had this decision before him., But to my mind it is impossible to come to any other conclusion than the one at which the trial Court came, namely, that the adoption was good, bearing in mind the principle on which Anant Govind v. Dnyaneshwar Balkrishna was decided.
4. The appeal will, therefore, be allowed with costs throughout. The decree of the lower appellate Court will be set aside and the decree of the trial Court restored.