1. These two appeals arise out of two suits brought by an adopted son against certain alienees to have the alienations made by his adoptive mother before his adoption set aside on the ground that they were not made for legal necessity. The defence alleged that there was in fact legal necessity and that the adoption of the plaintiff, if proved, was invalid, because his mother was unchaste, and an unchaste widow according to Hindu law is not competent to adopt. Both the Courts have found want of legal necessity. The trial Court found that the unchastity of the plaintiff's adoptive mother, which admittedly resulted in the birth to her of an illegitimate son more than twenty years before the adoption and some four years after her husband's death, had in fact ceased before the adoption took place. It also found that even on the assumption that she was still unchaste at the time of the adoption, the unchastity would not have the effect of making the adoption invalid, because in the first place she had delegated the ceremonies which otherwise she would have had to perform but which owing to unchastity she was incompetent to perform, and in the second place no ceremonies were necessary apart from the ordinary giving and taking, since the adopted son and his adoptive father belonged to the same gotra. The Assistant Judge who heard the appeal found on the facts that the unchastity continued up to the time of the adoption, at which time he thought on the evidence that the widow was still living with one Naru Bhagoji, the father of the illegitimate son of many years before; and he thought that on a true view of the Hindu law and the authorities cited on the point an unchaste widow in the regenerate classes (to which the parties here belong) would not be capable of adopting. But he left untouched the argument relied upon by the lower Court as to the parties being of the same gotra and of the adoption therefore requiring no ceremonies to be performed by the widow. The order of the trial Court was therefore set aside and the suits were dismissed. In these appeals by the plaintiff we come to the conclusion that the adoption must be upheld.
2. It seems that on the evidence the learned Assistant Judge was right in his conclusion that the widow was living in unchastity at the time of the adoption. There is not very much by way of authority one way or the other on the question of an unchaste widow's power to adopt. On behalf of the alienees in this case it has been contended, on the general principles of Hindu law as laid down in the texts, that any implied authority to adopt which the widow might be taken to possess can no longer be implied when she behaves in this way, since it is her duty to continue to be as chaste as she was in the lifetime of her husband. But there is the recent current of decisions to the effect that a widow in the Bombay Presidency has an inherent right to adopt unless prohibited by her husband (whatever may be the origin of that right, whether implied authority or something else); and it is therefore urged that the inherent right to adopt ought not to be assumed to continue in the case of a woman who has ceased to live in the way that her husband would expect her to live. It is argued that the whole idea of an unchaste widow performing a religious act of this kind in a state of unchastity, even though it be for the benefit of her husband's soul, is repugnant to Hindu ideas; that a woman of this sort is a degraded woman within the meaning of the texts; and that though the authorities say that a woman who becomes unchaste after the death of her husband does not forfeit any property of which she may have become vested on his death, nevertheless there is no authority to be found against her forfeiting her power to adopt in similar circumstances.
3. It seems however that the authorities, so far as they go, are against her forfeiting her power to adopt. There is a case of 1870 which has been relied upon by the learned Assistant Judge for his view that a widow's unchastity disentitles her from adopting: Sayamalal Dutt v. Saudamini Dasi (1870) 5 Beng. L.R. 362 . That was a case of a woman in the regenerate classes making an adoption while living in concubinage and in a state of pregnancy resulting from that concubinage; and the learned Judge who tried the case came to the conclusion that she was incompetent for that reason to receive a son in adoption. But we are not bound by this case; and, with due respect, its authority is perhaps doubtful. It was a decision of a single Judge, and it appears from the judgment that the learned Judge received a good deal of assistance from one of the Court translators in elucidating the Hindu law. Moreover it was a stronger case than the one with which we have to deal at present, since the widow was at that time in a state of pregnancy. But the reasoning upon which that case proceeded, assuming it to be good authority, has been interpreted by a bench of this Court as based upon the widow's incompetency to perform the necessary ceremonies while in a state of unchastity: see Basvant Mushappa v. Mallappa Kallappa (1920) I.L.R. 45 Bom. 459. In that case it was held that the Bengal case could be distinguished upon the ground that ceremonies which the widow was incompetent to perform were necessary in the one but not in the other, the parties being Shudras. It is argued that this case has not been correctly decided; but it is at any rate binding upon us so far as Shudras are concerned, and the reasoning upon which it proceeded is also binding upon us. It would follow that if the difficulty of the ceremonies necessary in the case of the regenerate classes can be got over, then, so far as this Court is concerned, the adoption would not be regarded as invalidated by the widow's unchastity. That the difficulties arising out of the ceremonies can be got over is clear. Sir Dinshah Mulla, at p. 546 of his 9th edn. of 'Hindu Law', says that the ceremony of datta homam may be performed by the parties who give and receive a boy in adoption, or the performance of it may be delegated by them to others; and therein he accepts the authority of this Court in Lakshmibai v. Ramchandra (1896) I.L.R. 22 Bom. 590. It is clear from the evidence in this case that the widow did in fact delegate to others that and other ceremonies. She says in her evidence that she did nothing but sit near the priest and delegated her duties to one Dnyanu. Dnyanu in his evidence says that he supplied the necessary materials to the priest. Apart from that it is a fact that the parties here are members of the same gotra; and for members of the same gotra no ceremony beyond giving and taking is necessary even among Brahmins: see Govind prasad v. Rinabai (1924) I.L.R. 49 Bom. 515 and Bal Gangadhar Tilak v. Shrinivas Pandit (1915) L.R. 42 IndAp 135
4. The learned Assistant Judge stressed a passage from Sarkar's 'Hindu Law' in which it is said that unchastity becomes very grave if followed by conception and that then a widow's right to her husband's estate must cease. The learned Judge takes this to mean that from the time of her fall she ceases to be the lawful heir to her husband if she belongs to a twice born caste, and he goes on to say that in the light of this the decision of the Bombay High Court in Basvant v. Mallappa is not applicable to the present case. Whether any inference bearing on the present question can be drawn from the position of a widow as regards inheritance to her husband is, I think, doubtful. Merely because she lost the privilege of inheriting her husband's property, it would not necessarily follow that she lost the duty of adopting to him. But however that may be, the learned author cited in the Court below evidently takes a different view as regards the effect of a widow's unchastity on her power to adopt. In his Tagore Law Lectures of 1888 on the Hindu law of Adoption, 1916 edn., he says that the early cases, in particular Sayamalal Dutt v. Saudamini Dasi, were decided at a time when it was thought that unchastity in a widow divested her of the estate inherited by her from her husband, and that it is now settled by the Privy Council that subsequent unchastity is no cause for divesting her of the estate which is already vested in her: see Moniram Kolita v. Kerry Kolitany (1879-80) L.R. 7 IndAp 115 and also Parvati v. Bhiku (1867) 4 B.H.C.R. 25. He concludes with the following sentence:--
Considering, however, the present state of law as to the effect of a widow's unchastity, there is no cogent reason against an adoption by an unchaste widow, for it would rather be an act of self-sacrifice on her part.
And observations to much the same effect are made by Sir Ernest Trevelyan in his 'Hindu Law', 2nd edn., p. 132, where he says:--
As [however] a widow adopts, not for her own benefit, but for that of her deceased husband, it may seem hard that her want of chastity should deprive his manes of the benefits which, according to Hindu ideas, accrue from an adoption.
5. We think that there is no reason for holding in this case that the widow was incompetent to adopt the plaintiff. We must therefore set aside the decree of the lower appellate Court and restore that of the trial Court, with costs throughout in each of the appeals.