1. Antaji and Sadashiv were two joint Hindu brothers and the property in suit was the estate of the joint family consisting of the two brothers. Sadashiv died in 1876, leaving a widow Pavvati and two daughters. AfterSadashiv death his widow continued to live with Antaji, who had become by survivorship the sole owner of the family property. Antaji s wife died during his life-time, and in 1877 Antaji himself died, leaving no issue or nearer heir than his brother's widow Parvati, who, as the nearest gotraja sapinda alive, succeeded him. Parvati took only a widow's estate in the property she thus inherited and was in possession and enjoyment of it till 1899, in the July of which year she died. She had, however, a few days, before her death, adopted Pandurang, defendant 1, and the present dispute is between Pandurang, the adopted son, and the plaintiffs some of whom are the reversioners entitled to succeed to Antaji as his heirs after the termination of Parvati's widow's estate. The fact of the adoption has been held established by both the Courts, and there is no question that plaintiffs 2, 4, 5,6, 7, 8 and defendant 3 are entitled to succeed if the adoption of Pandurang by Parvati is held to be invalid.
2. The Courts below have decided against the plaintiffs, holding the adoption by Parvati to be valid in law. This decision in favour of the validity of the adoption is mainly based on the authority of Rupchand v. Rakhmabai (1871) 8 Bom. H.C.R. 114 and Surendra v. Sailaja Kant ILR (1891) 18 Cal. 385. The lower Courts hold, and we think so far rightly, that during Parvati's life, the plaintiffs, as reversioners, could not be said to have any vested interest in the property. They further hold that though Parvati's adoption is not one to the last male holder, still that would not make it spiritually invalid, and as her action does not divest any estate vested in third parties and was derogatory of no other rights but her own, the adoption was perfectly valid.
3. It is the soundness of this latter position which is mainly attacked before us, and which in our opinion, requires further and more careful consideration than is apparently bestowed upon it in the lower Courts.
4. The decision of the lower Courts no doubt has some support in the observations of this Court in the case of Amava v. Mahad-gauda ILR (1896) 22 Bom. 416 and Payapa v. Appanna ILR (1898) 23 Bom. 327. But it appears to me that the judgment of the Full Bench of this Court in Ramhrishna v. Shamrao ILR (1902) 26 Bom. 526 is so absolutely inconsistent with the main ground of the decision in these cases, that it seems to me doubtful if they can now be regarded as binding authorities.
5. At any rate the Full Bench decision, clearly lays it down, that the consideration of the adopting widow not divesting any estate but her own cannot be accepted as the sole criterion of the validity or otherwise of an adoption by a widow : and the adoption by a grand-mother succeeding as heir to her grandson, who died unmarried, was held to be invalid. Their Lordships held that after the decisions of the Judicial Committee in the cases of Bhoobun Moyee (1865) 10 M . I.A. 279, Pudma Coomari and Thayammal it was not open to this Court to consider how far the principle laid down by these cases was in accordance with either the letter or spirit of the Hindu Law as expounded in the books or as under' stood by the Hindus themselves : and they hold that the grandmother's power to adopt was extinguished and could not afterwards be revived.
6. In the case before us the question of Hindu law arising categorically stated is 'can a Hindu widow, who succeeds to an estate not her husband's but as a Gotraja Sapinda of the last male holder under the rule established by Lulloobhoy v. Cassibai and in consequence of the absence of nearer heirs such as the mother and grandmother, make a valid adoption.'
7. It is admitted that the widow Parvati had never any express authority from her husband adashiv ssuch as would entitle her to adopt in a joint family: it is also admitted that Antaji while alive never authorised any adoption by her to her husband. It is therefore clear that Parvati never had the power of adoption before Antaji's death : and any possibility of her having such became extinct on his death. He was the last sole owner of the family property: and it is his estate which she got by inheritance as a sapinda. The fact that Antaji left no widow behind him is a mere accident, which, I do not think, improves her status: and the considerations under which a mother succeeding to a son dying unmarried is held entitled to adopt have, in my opinion, no place here. If Antaji had left a grandmother surviving, she would have succeeded him in preference to Parvati: and I think it would be absurd to hold that while a mother or grandmother could not have adopted, a more distant female coming in as a sapinda can validly adopt.
8. It was indeed urged by Mr. Kelkar for the respondent that a power to adopt was inherent in every Hindu widow: that she may be temporarily incapable of acting upon it that it-was in suspension during Antaji's lifetime, and that it revived when she got the estate as a sapinda, when her act of adoption would not have the effect of divesting any estate but her own. But I feel that every one of these considerations applied to the case of the grandmother in the case of Ramkrishma v. Shamrao. It may also be noticed that this was exactly the argument urged before their Lordships of the Judicial Committee by Mr. Mayne in Thayammal's case (vide at p. 69 of L.R. 14 I.A.) and was not acceded to. I do not think there is any authority for the proposition that the right to adopt is a necessary incident of inheritance. In an undivided Hindu family, the widow of a coparcener can only get it by the express authority of her husband, or with the assent of the survivors in their life-time. Parvati never having acquired it in either way, I think it could not start afresh in her after Antaji's death. And Mr. Kelkar had practically to admit in argument that unless the decision in Ramkrishna v. Shamrao was taken to be a special one with respect to a grandmother only or was taken to be wrongly decided, he could not differentiate the case of a sapinda widow. But we feel we are bound by the Full Bench decision and cannot go behind it.
9. The result is that in my opinion the adoption of Pandurang by Sadashiv's widow was invalid: and that the plaintiffs Nos. 2, 4,5,6,7, 8 and the defendant 3 are entitled to the declaration they seek. I would therefore reverse the decrees of both the Courts below and decree possession of the suit property to the plaintiffs and defendant named above. Costs on defendant throughout.
10. I agree. The case for the adoption seems to me weaker here than it was in Ramkrishna v. Shamrao ILR (1902) . 26 Bom. 526 since Bai Parvati is a remoter heir of Antaji than was the grandmother of her grandson in Ramkrishna's case. Yet the grandmother's ' adoption was pronounced invalid by the Full Bench of this Court, and by that decision we, as a Division Bench, are bound. As, in my opinion, the law laid down by the Full Bench governs the facts of the case before us, I concur in the decree proposed by my learned colleague.