John Beaumont, C.J.
1. This is an appeal under the Letters Patent from a decision of Mr. Justice Madgavkar in second appeal, and the case raises a short but interesting point of law. The plaintiff claims to succeed to certain watan property as the heir of his natural father Sangangauda. The answer of the defendants is that the plaintiff was adopted into the family of one Mudirangappa and that thereby he lost his right to succeed to his natural father. The reply of the plaintiff is that the alleged adoption was invalid.
2. The material facts are that the adoptive father Mudirangappa died in 1875 leaving a widow named Dandava, whom I will hereafter refer to as 'the father's widow.' He also left a son named Timappa who died in 1881. Timappa left a widow named Parvateva, whom I will refer to as ' the son's widow.' It is clear that on the death of the son the estate would vest in the son's widow, and that whether before or after the death of the son the father's widow could not herself exercise any power of adoption, because under the general rule of Hindu law the widow has no power to adopt if by so doing she will divest the estate of another. Therefore, the father's widow never actually had a power of adoption which she could have exercised at any given moment. On the other hand the son's widow could undoubtedly have adopted to her husband after his death. In 1902 the son's widow consented to the father's widow adopting the plaintiff, and it is not disputed that a form of adoption of that nature was gone through. The question is whether that adoption is valid.
3. Mr. Jayakar, to whom we are indebted for his very able argument, has referred us to a large number of cases commencing with the Privy Council case of Musswuat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279 and including Pudma Coomari Debi v. Court of Wards Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan Keshav Ramkrishna v. Govind Ganesh I.L.R. (1881) Bom. 94 Krishnarav Trimbak Hasabnis v. Shankarrav Yinayak Hasabnis I.L.R. (1892) Bom. 164 Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 4 Bom. L.R. 315 Anandibai v. Kashibai I.L.R. (1904) Bom, 461 6 Bom. L.R. 464 and Manikyamala Bose v. Nando, Kumar Bose I.L.R (1906) Cal. 1306 Those cases establish a rule which, I think, is accurately stated in the judgment of the lull bench of this Court in Ramhriehna v. Shamrao I.L.R. (1902) Bom. 526 4 Bom. L.R. 315 a judgment which was expressly approved by the Privy Council in Madana Mohana v. Purushothama The learned Judge Mr. Justice Chandavarksar delivering the judgment of the Court states the rule which he gathers from the Privy Council decisions at p. 532 in these terms:-
Where a Hindu dies leaving a widow and a son, and that son himself dies leaving a natural born or adopted eon 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 afterwards be revived.
4. Now it is clear that the facts of this case do come within the literal terms of that rule, because a Hindu died leaving a widow and a son and that son died leaving his own widow. But Mr. Jayakar says that in none of those cases was the question of consent to the adoption by the person in whom the estates were vested in any way raised. Of course the facts in the various cases differ, but putting it shortly I think they were all cases of this nature: A Hindu dies leaving a widow and descendants. So long as the descendants live the widow cannot exercise her power of adoption because of the general rule that she cannot divest the estate of others, Eventually by reason of the deaths of parties and the failure of issue, natural or adopted, the estates descend upon the original deceased owner's widow and the question which the Court has had to decide has been whether, when that event happens, the power of adoption which up to then the widow has not been able to exercise can then be exercised by her. The question really has been whether the power should be treated as having been in abeyance while the estates were vested elsewhere than in the widow and as having revived on the estates descending upon the widow, or whether the power should be treated as having come to an end, The Privy Council decided that in such cases the rule was that the power had come absolutely to an end, had been extinguished and could not be revived. I think, as appears from the Privy Council judgment in Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279 that the rule is rather one of convenience than of principle, and that the Court felt that at some time or other this power of adoption must come to an end and could not be kept in a state of suspended animation indefinitely. At any rate the cases do undoubtedly establish that that rule exists, but Mr. Jayakar is quite right in saying that in none of those cases was the question of consent by the owner for the time being of the estate discussed, and he says that this case really falls within the principle of Payapa v. Appanna I.L.R. (1898) Bom. 327 Now Payapa's case was the converse of the present case. In that case the son had predeceased the father leaving a widow. Therefore, on the father's death the estate descended-upon his widow, who had a power of adoption exercisable at any time. She consented to the son's widow exercising a power of adoption to the son, and it was held that that adoption was good. Mr. Justice Ranade who gave the judgment of the Court refers in the first instance to the settled rule that (p. 329):-
it is only the widow of the last full owner who has the right to take a son in adoption to such owner, and that a person in whom the estate does not vest cannot make a valid adoption so as to divest (without their consent) third parties, in whom the estate has vested, of their proprietary rights.
5. Then he says that there are four exceptions to this general rule and the third one is stated in these terms (p. 331):-' When the adoption takes place with the full assent of the party in whom the estate has vested by inheritance, the adoption is validated by such consent,' and in the course of his judgment Mr. Justice Ranade gives what he considers the justification for the rule. He says at page 332 of the report:-
Nothing is more common in this country that to find that parents, when they grow old, and have the misfortune of losing an only son in their old age, leaving a young widow behind, think it their duty to console that widow for the loss she has suffered by permitting her to adopt a son in preference to adopting a son themselves.
6. Mr. Nilkant has suggested that Payapa's case is not good law, and he relies on an observation of Mr. Justice Chaubal in Datto Govind v. Pandurang Vinayak I.L.R. (1908) Bom. 499 10 Bom. L.R. 692 But Payapa's case has been followed by this Court in Shidappa v. Ningangauda : AIR1914Bom107 and in Yeshvadabai v. Ramchandra : (1927)29BOMLR1320 . In particular, in the case of Shidappa v. Ningangouda, Mr. Justice Shah, a great authority on Hindu law, not only follows Payapa's case but expressly says that he approves of it. I think, therefore, that we must take Payapa's case as being an authority binding upon this Court. But I also think that the learned Judges who decided Payapa's case had not present to their minds any case of the exercise of a power of adoption which had come to an end. They state the rule by saying that the adoption is 'vahdated ' by the consent. The word ' validated ' would be an inappropriate word to apply to a power which had altogether ceased to exist. I think, therefore, we must take the rule as stated in connection with the facts of that particular case in which there is no suggestion that the power had come to an end and had been extinguished, The real question which we have to determine in this appeal is whether this case on its facts falls within Payapa'a case or whether it falls within the general rule established by the Privy Council as stated in Ramkrishna v. Shamrao I.L.R. (1992) Bom. 526 4 Bom. L.R. 315 Mr. Jayakar says, and I am disposed to agree with him, that there is no substantial difference between the adoption which was held valid in Payapa'a case and the adoption with which we are dealing in this case. It does not seem to matter to the reversioners whether the father's widow consents to the adoption by the son's widow or whether the son's widow consents to the adoption by the father's widow. In either case the adoption goes in the same line and the effect on the reversioners is the same. But there is, in my opinion, this essential difference between Payapa'a case and the present case, In Payapa'a case there was no question of the power to adopt of the son's widow having been extinguished. It is true that it had never become exercisable and could not be exercised at the moment when the particular adoption was made, because any such exercise would divest the estate of the father's widow. But if that is the only objection to the exercise of the power, it seems logical to hold that the objection can be removed with the consent of the person affected, namely, the father's widow. But in the present case, having regard to the decisions of the Privy Council, we are bound to hold that the power of adoption in the father's widow has absolutely come to an end, has been extinguished and cannot be revived; and if that is so, it seems to me impossible to say that it can be validated by the consent of anybody. However the case is put, it is clear that the power of adoption which was exercised in this case was the power of the father's widow, and not the son's widow. However much it may have been exercised with the consent of the son's widow, it is in no sense a delegation of the power which admittedly existed in the son's widow, because any adoption by the father's widow must be to her husband, the father, and any adoption by the son's widow must be to her husband, the son. On the whole, therefore, I have come to the conclusion that to apply the principle of Payapa'a case to the facts of this case would really be to go behind the rulings of the Privy Council, and that we must hold that the adoption by the father's widow in this ease was invalid, The appeal must accordingly be dismissed with costs.
1. The facts out of which this appeal arises are the occasion of a now point of Hindu law, or at any rate of one not directly included in existing decisions. The original plaintiff, Hanmantgowda, was adopted into another family by Dandava, a widow to her deceased husband. He, however, claimed to be the next heir to his natural father, on the ground that his adoption by Dandava had been invalid, because at the time she had no power to adopt, since her husband, who had died in 1875, had left a son Timappa who died in 1881 leaving a widow Parvateva, who on these facts was alone entitled to adopt a son to the family. The reply was that Dandava's adoption had been made with Parvateva's consent, which validated it. Whether Parvateva could, by consenting to the adoption, validate it, is the only point in the appeal.
2. I think the general rule is beyond dispute, that the person entitled to adopt in a Hindu family is the widow of the last male owner, with certain exceptions, such as a widow in an undivided Hindu family who adopts with the consent of her husband's surviving coparceners. The original Court dismissed the plaintiff's suit. The first appellate Court allowed it, and a single Judge of this Court agreed with the first appellate Court in second appeal. This appeal is under the Letters Patent.
3. The general rule to be derived from authoritative decisions is that where a Hindu dies leaving a widow and a son, and the son dies leaving a widow to continue the line by means of an adoption, the power of the first widow is extinguished and can never be revived. We have considered the cases of Pudma Coomari Debi v. Court of Wards Mussumat Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M. I.A. 279 Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan (1887) L.R. 14 I.A. 67 Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 4 Bom. L.R. 315 which was a decision of the full bench, Krishnarao Trimbak Hasabnia v. Shankarrav Vinayah Hasabnis I.L.R. (1892) Bom. 164 and Vaman Vithal v. Venkaji Khando I.L.R. (1920) Bom. 829 23 Bom. L.R. 269 and the cases relied on for the contrary, the original one being Payapa's case-which is the exact converse of the present one-Payapa v. Appanna I.L.R. (1898) Bom. 327 The facts there were that the widow of the last male owner, in whom the right vested, consented to an adoption by her predeceased son's widow, such an adoption being held valid, as being in agreement with Hindu sentiment, by the late Mr. Justice Ranade. The later Bombay cases are all on adjacent facts to those in Payapa'a case: see Vaman Vithal v. Venkaji Khando and Yeshvadabai v. Ramchandra : (1927)29BOMLR1320 . Mr. Justice Eanade's third exception, in Payapa's case, rests on an analogy drawn from the parallel instances where an adoption is permissible with the consent of the person in whom the estate vested at the time, and Mr. Jayakar's argument really is, that this is such a case, and therefore comes within that rule. On the facts in Payapa's case the widow of the predeceased son might have validly adopted with the consent of her father-in-law and the decision is really an extension of this power of consenting to the widow, in whom the estate vested on his death. But the facts are not so here. On those of the present case, Dandava never had a power of adoption, for on her husband's death her son stood in its way, and on his death, the estate vested in the son's widow, and if Dandava adopted, she was really doing so as deputy of her daughter-in-law, and there is no authority for holding such an adoption valid. The rule is clear that, in such circumstances, the power of the former widow, if it ever existed, is extinguished, and that it can never be revived. I agree that the appeal must be dismissed with costs, and the decree of the lower appellate Court confirmed.