Norman Macleod, Kt., C.J.
1. The plaintiffs sued to recover as owners possession of the plaint house and open site and land from the defendants.
2. The property originally belonged to one Akkagauda who died about 1846 leaving a daughter Kashibai, and two widows, Lingava, who died before 1868, and Tayava, who died in 1912. Tayava, therefore, succeeded on the death of Lingava to a widow's interest in Akkagauda's property. Kashibai was married to one Shivgauda and had by him a son Shidgauda who was six years old, when Akkagauda died.
3. In 1868, Tayava alienated most of her husband's property by virtue of three deeds :- By one she gifted certain property to her brother Basappa; by the second she sold half of five Survey Numbers to Annagauda, a bhauband of her husband; and by the third she sold the other half of those properties to Shivgauda.
4. Kashibai the daughter died in 1907 a few days after the death of Shivgauda. Pirgauda, another son of Kashibai, had been given in adoption into another family some years before. Shidgauda adopted Bhau the son of Pirgauda. He is the first defendant in the suit and Pirgauda is the second defendant. The plaintiffs are the son and grandsons of Annagauda. The whole pedigree is set out at page 4 of the print.
5. The first issue was : 'Do the plaintiff's prove that the deceased Annagauda was the next reversionary heir to Akkagauda when his widow Tayava died in 1912?' That was found in the affirmative and that decision cannot be questioned.
6. The next issue was 'Are the plaintiffs estopped from bringing this suit?'
7. That issue was found in the negative, and we think rightly, as no question of estoppel arises in the case.
8. But the learned Judge found that the plaintiffs were entitled to recover possession of the property in suit by setting aside the alienations made by Tayava as not extending beyond her. life, and that decision depended on the question whether the gift to Basappa and the sale to Shivgauda by Tayava were binding on the plaintiffs. It is important to notice that the plaintiffs presumably were in possession of the lands sold by Tayava to Annagauda, and the real question is whether Annagauda, having consented to the gift of property to Basappa and to the sale of property to Shivgauda, and having at the same time obtained a considerable portion of the property from Tayava, his descendants can now be allowed to reprobate the consent which he then gave.
9. In Basappa v. Fakirappa (1921) 23 L.R. 1040 it was held:
Where a Hindu widow makes a gift of a portion of her husband's property to her husband's brother's grandson, with the consent of the next reversioner, another brother of her husband, the gift is valid, and cannot be impeached by the consenting brother.
10. Mr. Justice Shah said (p. 1045):
So fat as the consenting reversioner is concerned, I see no substantial difference between a gift and an alienation by way of sale when the legal necessity is negatived on the evidence apart from the consent. In Vinayak v. Govind (1900) 2 Bom. L.R. 820 though the plea of legal necessity was negatived the alienation of two plots by the widow was upheld on the ground of Venkatesh's consent In both the judgments delivered in that case, it has been pointed out that if Venkatesh had survived the widow, he would undoubtedly have been bound by his own consent; and on the facts of that case the Court held that Venkatesh's consent was sufficient to validate the sale as against the reversioner who was Venkatesh's son. Apart from the decisions it seems to me that where, as in the present case, we have a gift by a Hindu widow in favour of the grandson of her deceased husband's brother foe whom she would naturally have affection, and where that gift is consented to by the next reversioner, there is no reason why at least the consenting reversioner should not be held bound by his consent, and why he should not be estopped from questioning the validity of such a gift.
11. It seems to us that this is a still stronger case. The transactions which were effected by Tayava with the consent of Annagauda and Shidgauda were evidently pre-arranged as a proper disposition of Akkagauda's property between these parties, and those transactions must be considered as a whole; and since Annagauda received considerable advantage from giving his consent to Tayava's alienations, it would be most inequitable if his descendants, while retaining that advantage, should be allowed to set aside the other alienations. One property Survey No. 207, which is now in the possession of the second defendant and which had remained with Tayava, was not included in any of the three documents executed by her in 1868, and the plaintiff's were clearly entitled to possession of that property.
12. Apart from the question, whether the plaintiffs were bound j by Annagauda's consent, it has been contended that the second defendant, although adopted into another family, could still succeed to the property of his maternal grandfather in his natural family. Dewan Bahadur Rao relied on a passage in Colebrooke, Vol. II, p. 395. Whatever authority might be given to that passage in Bengal, the authorities in this Presidency are perfectly clear. We need only refer to the latest decision of the Privy Council in Nagindas Bhugwandas v. Bachoo Hurkissondas where their Lordships, while referring to a decision in Kali Komul Mozoomdar v. Uma Shunkur Moitra , cited with approval the following passage in the judgment of Mr. Justice Romesh Chunder Mitter:
The theory of adoption involves the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and the maternal line, and his complete substitution into the adoptor's family as if he were horn in it.
13. In the judgment of the lower Court in Kali Komul Mozoomdar v. Uma Shunkur Moitra, various passages in Dattaka Mimansa were referred to, from which it is clear that the appellants' contention cannot be sustained. Section VI, p. 51, in Dattaka Mimansa says:
The funeral cake follows the family and estate,' the family and estate are declared to be the cause of performing the funeral repast; and the estate of the maternal grandfather also, like that of the father, lapses from the son given. His incapacity to perform a funeral repast in honour of his original maternal grandfather is properly declared.
14. This passage is in direct conflict with the passage in Colebrooke, Vol. II, p. 395, on which Dewan Bahadur Rao has relied. Again it is stated in that judgment:
It is, therefore, dear that the adopted son confers the same spiritual benefit upon the relatives of his adoptive mother as a legitimate son does, and that he is out off from the inheritance of the relatives of his original mother.
15. We think, therefore, defendant No. 2 by virtue of his adoption cannot succeed to the estate of his maternal grandfather Akkagauda, The appeal, therefore, must be allowed except with regard to Survey No. 207. In other respects it is dismissed.
16. There will be the usual inquiry as to mesne profits of Survey Number 207.
17. Plaintiffs should pay three-fourths of defendants' costs throughout.
18. By consent, we direct that in the trial Court defendants Nos. 1 and 2 between themselves ought to have one set of pleader's fees, and that defendants Nos. 4 to 7 between themselves ought to have another set.