1. The question of law in this second appeal is whether the adoption of the plaintiff by Parvatibai after the death of her grand-son Dattu is valid. The relationship of the parties may be indicated by the following table:--
Sakharam|__________________________________| |Govind=Parvati Hari| |Anant=Annapurnabai ___________________ | | |___________________ Balvant Vaman| | (Deft. 1) (Deft. 2)Dattu Anasuya
2. Govind and Hari were divided: Govind's son Anant and Anant's wife Annapurnabai predeceased Govind. Govind died leaving a widow Parvati and a grandson Dattu and a granddaughter Anasuya. On Govind's death Dattu became the owner of the property. Dattu died unmarried: and his grandmother Parvati succeeded him. She adopted the plaintiff, who has filed the suit to enforce his rights as the adopted son of Govind against the representatives of Hari's branch. The fact of the adoption was held proved by the trial Court and not challenged in the lower appellate Court. Both the lower Courts have held the adoption to be invalid on the authority of Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom 526, 4 Bom. L.R. 315 The lower appellate Court was of opinion that the fact that Parvati's son Anant never succeeded would not make any difference as to the applicability of the said decision.
3. In the appeal before us the correctness of this view is questioned. It is urged that in Ramkrishna v. Shamrao the grandmother adopted after the estate had vested in her son and had descended to the grandson on the death of the son, that while the grandmother would have no authority in such a case to adopt on the death of the grandson, the present case is essentially different in so far as her position was exactly the same on Dattu's death as that of a mother who would inherit the estate on the death of her son, who has left no other nearer heirs.
4. There is no decided case so far as I have been able to ascertain, and none has been cited to us at the bar, dealing with the question of the power of the grand-mother to adopt to her husband under circumstances such as we have in this case.
5. The decision in Ramkrishna v. Shamrao requires to be closely examined in order to see whether it can apply to a case of of this kind. In that case the essential facts were that Sitabai's husband Ramchandra died in the lifetime of his father Anandrao leaving a son Sakharam. On Anandrao's death the estate passed to his grandson Sakharam. Then Sakharam died leaving a widow Gangabai and a son Dattatraya. Then Gangabai died and subsequently Dattatraya died unmarried. On his death his grand-mother Sitabai succeeded to his property. Sitabai then adopted a boy: and the question that was referred to the Full Bench was 'whether a grand-mother succeeding as heir to her grandson dying unmarried is entitled to adopt in the circumstances of the present case.' Unfortunately the question referred to the Full Bench has not been accurately stated, and the words 'in the circumstances of the present case' have been omitted in the report at p. 527. The judgment of the Full Bench delivered by Chandavarkar J. makes the position clear. After stating the case the learned Judge has pointed out as follows (p., 528):--
The real question which we have to decide is whether, apart from the general principles of Hindu Law bearing on the subject of a widow's power to adopt a son to her deceased husband, the decision of this Court in Hasabnis's case I.L.R. (1892) 17 Bom.164., has interpreted the law correctly as expounded by the privy Council in Bhooban Moyee's case (1865) 10 M.I.A. 279., and reaffirmed in their later decisions in Pudma Coomari's case ., and Thayammal's case. .
6. These cases are then examined in the judgment and the principle deduced therefrom is stated as follows:--'Where a Hindu dies leaving a widow and a son, and that son dies leaving natural born son 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 after be revived.' The argument based on the consideration that the grandmother took an absolute estate as heir of her grandson was advanced but negatived; and the basis of that argument is not well founded as it has been held by this Court in a later decision that the grand-mother like the mother takes only a widow's estate (see Dhondi v. Radhabai. I.L.R. (1912) 36 Bom. 546, 14 Bom. L.R. 569.) In the result the Full Bench held that the decision of this Court in Hasabnis's case correctly interpreted the law as laid down in the Privy Council with reference to the power of a widow to adopt and answered the question referred to that bench in the negative It is clear that the question of the grand-mother's power to make a valid adoption when the estate has passed directly from the husband to the grand-son and has come back to her directly from her grand-son without the intervention of any other heir did not arise and was not considered in the case.
7. The question that we have to decide is really one of first impression. In the very nature of things such a case could not frequently arise. It is clear that Govind's widow Parvati would have been entitled to adopt if Govind had died sonless, i. e., without a grandson or great-grand-son. (See Bharmappa v. Ujjangauda. I.L.R. (1921) 46 Bom. 455, 23 Bom. L.R. 1320.) If he had left only a son and if that son died too without leaving any heir nearer than his mother Parvati, Parvati would have been entitled to adopt according to the decisions of this Court. In the present case, however, the son and his wife predeceased Govind. When Govind died he had a grand-son. So he did not die sonless The grandson continued the line: but on the death of the grand-son without any son or widow behind him, i. e., without any nearer heir, the estate went to Parvati as his grand-mother. The line of Govind became extinct on Dattu's death and the considerations which apply to a mother in that position in favour of letting her continue the line apply to the case of a grand-mother. Mr. Justice Ranade has observed in Gavdappa v. Girimallappa I.L.R. (1894) 19 Bom. 331. with reference to the case of a mother that 'if a widow cannot adopt after the death of her natural or adopted son under any circumstances, half the adoptions that take place would have to be declared invalid.' This observation cannot apply with the same force or anything like it to the case of a grand-mother. But on principle her position is not distinguishable from that of a mother where the devolution of the estate has followed the course as in this case. On the other hand it is urged that the case of a mother is an exception to the general rule and it is not proper to extend the exception in favour of the grand-mother. In this Presidency no express power enabling the widow to adopt to her husband is essential. The mother inheriting the estate of her son, who has left no son or widow is placed exactly in the same position as a widow of a Hindu who has died son-less. On the facts of the present case it seems to me that Parvati was placed on Dattu's death exactly in the same position as a mother would be on the death of her son without any nearer heir. On the whole it seems to me that it would be in keeping with the liberal interpretation of the widow's power to adopt, accepted in this Presidency, to hold that a grand-mother could make a valid adoption to continue the line of her husband under circumstances such as we have in this case.
8. I may add that I have not been able to find anything in modern works on Hindu Law which can throw any light on this question except in Mr. Justice Mulla's work on Hindu Law. In the 4th Edition of this book at p. 430 we find illustration (j), which is exactly the present case.
9. I may add that the Privy Council decisions, referred to in Rarnkrishna v. Shamrao, and the later case of Madana Mohana v. Purushothama , in which the decision of the Full Bench is referred to with approval, all deal with the question of the power of the mother to adopt, on the death of her son, when the son has left no nearer heir than the mother. There is no decision bearing on the question that we have to decide; and I am of opinion that the view taken by Mr. Justice Mulla in his book on Hindu Law accords with the powers of the widow to continue her husband's line as understood in this Presidency. If the ratio decidendi of Ramkrishna v. Shamrao is to be applied to this case it may be stated that on the facts the stage when Parvati's powers to adopt can be held to be extinguished has not been reached. I would therefore, allow the appeal and decree the plaintiff's claim as prayed with costs throughout on defendants Nos. 1 and 2.
Norman Macleod, Kt., C.J.
10. I agree, and I should like to add a few remarks with regard to the report of the decision in Ramkrishna v. Shamrao I.L.R. (1902) 26 Bom, 526, which appears to have prevented the Joint Subordinate Judge from deciding in the plaintiff's favour as he was evidently inclined to do. The pedigree in Ramkrishna v. Shamrao was as follows:
Anandrao, d.1878.|Ramchandra+Sitabai|Sakharam, d.1886=Gangabai|Dattatraya
11. Ramchandra died in the lifetime of his father leaving his widow Sitabai and a son Sakharam. When Anandrao died Sakharam succeeded to his estate. Sakharam died leaving his widow Gangabai and a son Dattatraya. Then Gangabai died and lastly Dattatraya died unmarried. His grandmother Sitabai succeeded as his heir, and she adopted the plaintiff to his husband Bamchandra. On Sitabai's death her husband's cousin took possession of the property disputing the plaintiff's status as adopted son. The plaintiff's suit was dismissed in both the lower Courts. In second appeal the Judge as reported referred the following question for the decision of a Full Bench.
Whether a grandmother, succeeding as heir to her grandson, who died unmarried can by Hindu Law make a valid adoption.
12. It would have been impossible for the Full Bench to have attempted to answer so general a question, and as a matter of fact the question referred was whether in the circumstances of the case (as detailed above) a grandmother succeeding as heir to her grandson dying unmarried was entitled to adopt.
13. Chandavarkar, J. was of opinion that the answer to the question depended on whether the inheritance had vested in some heir of the son other than the mother. Her power of adoption did not depend upon the mere vesting of the estate in herself at any time. Reference was made to the three hypothetical cases put by Lord Kingsdown in Bhoobun Moyee's case (1865) 10 M.I.A. 279. Really there were four cases including the one actually before the Court. These may be usefully set out as follows.
1 A=B| C|D|EIf A dies leaving a widow B and a son C, and C dies leaving a son D, and D dies leaving a son E, B cannot adopt to A on the death of E.
2 A=B|C|DIf D dies without leaving a son, B cannot adopt, as her power came to an end when the estate passed to her grandson D.
3 A=B| C=DIf C dies leaving a widow D as his heir B the widow of A cannot adopt so as to defeat the vested estate of D.
4. If however C dies without leaving a son or a widow, B's power to adopt has not come to an end.
14. It is clear, therefore, that the case we have before us is not covered by the facts of the case either in Ramkrishna v. Shamrao or any other reported case or by any of Lord Kingsdown's hypothetical cases in Boobun Moyee's case.
15. It does however appear as illustration (j) to section 386 of Mulla's Principles of Hindu Law. 'A dies leaving a widow and a grandson B. On A's death B succeeds to the estate as his grandson, B then dies without leaving any wife or children. On B's death the widow succeeds to the estate as his grandmother, the widow may adopt a son to her husband A.'
16. The learned author supports his opinion in this way. When a husband has left a son but the son dies leaving his mother as his nearest heir, she can adopt to her husband. 'Son' means a son, grandson or great grandson. Accordingly if the husband dies leaving only a son, or a grandson or a great grandson, and the son or grandson or great grandson dies leaving the first widow his nearest heir, her power to adopt has not been extinguished. It is otherwise if any intermediate estate intervenes, as that brings the first widow's power of adoption to an end. I see no reason why we should not accept this argument.
17. If there are only two steps in the inheritance (1) from the husband to the grandson and (2) from the grandson to the widow grandmother, she can adopt to her husband.