1. [His Lordship, after setting out the facts of the case, proceeded.] The validity of the adoption of defendant No. 2 would depend, firstly, on the question whether the authority set up by defendant No. 1 was proved, and, secondly, if the authority was not proved, whether the adoption of defendant No. 2 was valid. It is urged on behalf of the appellants that even if the authority alleged by Bhimabai is not proved, and even if Jivangowda is held not to have separated from Nilkanthagowda, the adoption would be valid according to the ruling in Yadao v. Namdeo (1921) L.R. 48 IndAp 513: 24 Bom. L.R. 609 and Harigir v. Anand Bharathi. , p.c. It is urged on the other hand that if the authority alleged by Bhimabai is not proved, and if Jivangowda and Nilkanthagowda continued to be joint, the adoption of defendant No. 2 would be invalid according to the decision of the Full Bench in Ishvar Dadu v. Gajabai (1925) 28 Bom. L.R. 782 that the decision of the Privy Council in Harigir v. Anand Bharathi was delivered prior to the decision of the Full Bench in December 1925, and did not affect the decision of the Full Bench on the special facts of that case and that the whole of the property in suit being watan property, the adoption of defendant No. 2 was invalid on the authority of the rulings in Bhimabai v. Tayappa MurarraoI.L.R. (1913) 37 Bom. 598: 15 Bom. L.P. 783 and Adiveva v. Chanmallgowda. : AIR1924Bom393 .
2. [His Lordship next considered whether the authority alleged by Bhimabai was proved, and held that it was not proved. The judgment then proceeded :]
3. It is urged on behalf of the respondent that Nilkanthagowda and Jivangowda continued to be joint after the separation of Khandappagowda in 1895, that the adoption of defendant No. 2 would be invalid unless Jivangowda had given express authority to Bhimabai to adopt or unless Nilkanthagowda ov Dyaman-gowda consented to the adoption, and that the adoption of defendant No. 2, which would have the effect of divesting Dattatraya of one-half of his property, would be invalid as no such consent is alleged or proved in this case.
4. On the question as to the jointness or separation between Nilkanthagowda and Jivangowda, it is urged on behalf of the appellants, relying on the case of Balabuso Ladhuram v. Rukehmabai . that the separation of Khandappagowda, one of the members of the joint family, was virtually the separation of all, and the question whether the remaining coparceners remained joint or united would depend upon the agreement between the parties, and that such agreement must be proved like any other fact. Having regard to the decisions of the Privy Council in Jatti v. Banwari Lal and Palani Ammal v. Muthwenkatacharla Moniagar (1924) L.R. 52 I.A, 83: 27 Bom. L.R. 735 and the decision in Babanna v. Parava : (1926)28BOMLR1446 . I think it is clear that when a member of a joint family separates, the remaining coparceners without any special agreement among themselves may continue to be coparceners and enjoy as members of a joint family the remaining property after such a partition of the family property, and the question whether or not the other members of the family continue to be joint or separate is to be determined on the evidence in the case.
5. [His Lordship next discussed the evidence at great length and concluded :] We hold, therefore, that after Khandappagowda separated, Nilkanthagowda and Jivangowda continued to be joint.
6. The next question is whether the adoption of defendant No. 2 is valid. It is urged on behalf of the appellants that the adoption of defendant No. 2 is valid even if the authority to adopt alleged to have been given by Jivangowda is held not proved on the authority of the Privy Council decisions in Yadao v. Namdeo and Harigir v. Anand Bharathi. The case of Yadao v. Namdeo has been considered in the Full Bench decision in the case of Ishvar Dadu v. Gajabai (1925) 28 Bom. L.R. 782, f.b. and it was held that, under Hindu law, in the Bombay Presidency, the widow of a deceased coparcener in a joint family has no inherent right to make a valid adoption, without either the authority of her husband or the consent of the surviving coparceners of her husband, and that the decision in Ramji v. Ghamau I.L.R (1879) Bom. 498. has not been overruled by the decision of the Privy Council in Yadao v. Namdeo.
7. In the case of The Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397 their Lordships of the Privy Council said (pp. 433 and 441):-
According to the doctrine of the Benares and Maharashtra Schools, prevailing in the Peninsula, it (assent of the husband) may be supplied by that of his kindred, her natural Guardians;,.. The question who are the kinsmen whose assent will supply the want of positive authority from the deceased Husband, is the first to suggest itself. Where the Husband's family is in the normal condition of a Hindoo family,-i.e. undivided -that question is of comparatively easy solution. In such a case the Widow, under the Jaw of all the Schools which admit this disputed power of adoption, takes no interest in her Husband's share of the joint estate, except right to maintenance. And though the father of the Husband, if alive, might:, as the head of the family and the natural Guardian the Widow, be competent by his sole assent to authorize an adoption by her, yet, if there be no Father, the consent of all the Brothers, who, in default of adoption, would take the Husband's share, would probably be required, since it would be unjust to allow the Widow to defeat their interest by introducing a new coparcener against their will. Where, however, as in the present cage, the Widow has taken by inheritance the separate estate of her Husband, there is greater difficulty in laying down a rule.
Reference may also be made to the remarks of their Lordships of the Privy Council in Sri Raghunadha v. Sri Brozo Kishoro (1876) L.R. 31. A. 397.
8. In the Full Bench case of Ishwar Dadu v. Gajabai the facts in the case of Yadao v. Namdeo have been distinguished on the ground that Pandurang had separated and Yadao was adopted by Champabai when she inherited as the mother of Pandurang after his separation, and that the decision in Yadao v. Namdeo was in conflict with the decision in Ramji v. Ghamau, only on the point of the validity of the adoption by a Hindu widow in a joint Hindu family where the husband died in union, leaving an express authority to the widow to adopt, and where subsequently the estate came to be vested in the widow as the heir of her son adopted in pursuance of the said authority, on account of the subsequent partition between the son and the other Coparceners, and the estate was vested in her at the time of the adoption. It is not necessary that the husband of the adopting widow must be a separate member at the time of his death in order that the widow may have a right to adopt. Even if the husband died while he was united with his brothers and as a member of the joint family, the right may be exercised by the widow, when she inherited as the mother of her son who, in the meantime, had effected a partition with the other coparceners, See Mallappa v. Hanmappa. I.L.R (1919) Bom. 297, s. c. 22 Bom. L.R. 203 Shah J. in Ishwar Dadu v. Gajabai observes (p. 820):-
Thus, on a careful consideration of the observations in Yadao v. Namdeo, as also of tha basis of the rule in Ramji v. Ghamau, I am of opinion that, though Ramji v. Ghamau is overruled so far as it can be held to conflict with the decision in Yadao v. Namdeo, i. e., where the husband died in union, leaving an express authority to the widow to adopt, and where subsequently the estate same to be vested in the widow as the heir of her son adopted in pursuance of the said authority, on account of a subsequent partition between the son and other coparcener, and whom the estate was so vested in her at the time of the adoption, it is not overruled so far as the main point involved in Ramji v. Ghamau is concerned, viz., that where the husband died in union leaving no express authority to the widow to adopt, the widow cannot adopt without the consent of the surviving coparceners in whom the estate is vested by survivorship at the time of the adoption. In the absence of any decision of the Privy Council to the contrary, 1 think, we should still follow the rule in Ramji v. Ghamau that, in the absence of an express authority of her husband, the widow of a Hindu coparcener in an undivided family cannot adopt, without the consent of the surviving coparceners, in whom the property is vested by survivorship at the time of the adoption, as it is plainly our duty to give effect to it, if it still appears to us to represent the true limit of the widow's power to adopt in a joint Hindu family in this Presidency. The other view would expose joint families to risks of adoption by widows of deceased coparceners to which, according to the law as I understand it, they are not exposed, to which this High Court has consistently refused to expose them according to its interpretation of Hindu law, and to which according to the observations in the Ramnad case (1868) 12 M.I.A. 387 and Sri Raglmnadha's case (1876) L.R. 31 IndAp 154 they should not be exposed.
9. The decision of the Full Bench in Ishvar Dadu v. Gajabai has been followed in subsequent cases of this Court: Ganesh v. Gurnath : (1926)28BOMLR1188 Bala v. Akubai : (1926)28BOMLR1254 and Babanna v. Parava : (1926)28BOMLR1446 and the decision of the Full Bench is binding on this Court.
10. With regard to the decision of the Privy Council in Harigir v. Anand Bkarathi . the facts in that ease are similar to the facts in Yadao v. Namdeo, It was held in that case that before the death of Vishnu, Vishnu's uncle Ram Krishna had separated from his father Zingar. The plaintiff's father Vishnu was adopted in the year 1864 after the death of Jairam in 1863 by the widow of Jairam and before the death of the father-in-law Zingar in 1869. Earn Krishna, the brother of Jairam, had separated before the date of he adoption. At page 127, it appears that it was asserted by the plaintiff that after Jairam's death, his widow with the concurrence of Zingar adopted Vishnu. If Zingar, the father-in-law, consented to the adoption by his daughter-in-law, the adoption of Vishnu would be valid, and the consent of Ram Krishna would not be necessary. At page 128 it appears as if the finding of the Court was that Zingar consented to the adoption, for it is said : 'This ceremony could not be performed after the death of the widow, and the adoptive grandfather, Zingar-though he might concur with the widow-could not of himself make an adoption to his son.' It was not necessary in that case to consider the question whether Ram Krishna had consented to the adoption, for, according to the finding, he had separated before the date of the adoption in 1864, and a reference was made to Yadao v. Namdeo where their Lordships dealt with the contention that Ram Krishna had been adopted by his uncle Mana, when both parties appeared to have thought that there could be no adoption in a family where there were males, unless indeed with the consent of them all. There is no specific finding that Zingar consented, though it appears from the allegation of the plaintiff and the passage above referred to that Zingar consented to the adoption, and it was hold that the consent of the other males was not necessary, and therefore the question as to the adoption of Ram Krishna by Mana was not necessary to be considered. Their Lordships, however, clearly found in the following passage that Ram Krishna had separated from Zingar before the date of Vishnu's adoption. The facts, therefore, in the case of Harigir v. Anand Bharathi can be distinguished on the ground stated above, and the decision of the Full Bench in Ishvar Dadu v. Gajabai is binding on this Court and having regard to the decisions of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathy (1808) 12 M.I.A. 397. and in Sri Raghunadha v. Sri Brozo Kishoro . we think that the adoption of defendant No. 2 was invalid in the absence of an authority of Jivangowda.
11. It is not therefore, necessary to go into the question urged on behalf of the respondent that the adoption is also invalid on the ground that Dyatnangowda was the last owner of the watan property in suit which went to Dattntraya on his death, and the latter could not be divested by the adoption by defendant No. 1 of defendant No. 2 on September 17, 1919, on the authority of the ruling in Bhimahai v. Tayappa Murarrao I.L.R (1913) Bom. 598: 15 Bom. L.R. 783 and Adiveva v. Chanmallgowda. : AIR1924Bom393 .
12. We think, therefore, that the view of the lower Court is correct, and this appeal should be dismissed with costs.
13. [After setting forth the facts, the judgment proceeded :] The first point is whether Jivangowda and Nilkanthagowda were joint or separate and the second is whether the adoption by defendant No. 1 of defendant No. 2 is valid. The evidence on the question of the jointness or separation of Nilkanthagowda and Jivangowda has been discussed at great length by the Subordinate Judge. I do not propose to go into the details because there are certain outstanding facts in connection with it which can lead to only one conclusion.
14. Admittedly, Khandappagowda separated from his brothers in 1895. There in no partition deed. The learned pleader for the appellant has relied on Balahux Ladhuram v. Rukhmabai . as showing that the agreement to re-unite or to remain joint must be proved like any other fact. There is no suggestion of re-union here and there is a great deal of evidence on the question of the brothers remaining joint.
15. The latest case on the point is Palani Ammal v. Muthu-venkatacharla Moniagar which lays down that when one member of. a joint family has separated an agreement by the remaining members to continue undivided may be inferred from the way in which their business is carried on after the separation. In Babanna v. Parava : (1926)28BOMLR1446 . which follows that case, it is stated :-
A member of a joint; Hindu family can separate himself from the other members of the joint family, and is, on separation, entitled to have his share in the property of the joint family ascertained and partitioned off far him, but the remaining coparceners, without, any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family, what remained after such a partition of the family property. The question whether or not the remaining members of the family continue joint or separate e- is to be determined by evidence.
16. [After discussing evidence in detail the judgment concluded:] The documentary evidence and the circumstances of the case are altogether in favour of jointness and I agree with the finding that Nilkanthagowda and Jivangowda were joint.
17. This being the case defendant No. 1 had no authority to adopt defendant No. 2 without the consent of her husband's coparceners as has been held by this Court in the Full Bench decision in Ishvar Dadu v. Gajabai (1925) 28 Bom. L.R. 782. in which it was held that the decision in Ramji v. Ghamau I.L.R (1879) Bom. F.B has not been overruled by the decision of the Privy Council in Yadao v. Namdeo (1921) L.R. 48 IndAp 513: 24 Bom. L.R. 609. We are bound to follow this decision, and no authority in this case has been proved. This part of the case has been dealt with in detail by my learned brother and I agree that the adoption is invalid. The result is that the appeal must be dismissed with costs.