1. The plaintiff, Nani Durgabai, is the daughter of one Rajaram Trimbak deceased. Defendant No. 1, Umabai, is the widow of Bhagwant, Rajaram's only son. Defendant No. 2, Murlidhar, called Murlidhar Bhagwant, is a boy adopted by Umabai as the son of Bhagwant after Bhagwant's death.
2. The family consisted of Rajaram, his son Bhagwant, his daughter Nani, his wife Krishnabai, and his daughter-in-law Umabai. On March 6, 1915, Rajaram died, and the first question which we have to decide is whether his son Bhagwant predeceased him, as Nani says, or whether Bhagwant, died on March 25, 1915, as Umabai says. If Umabai is correct, then Bhagwant, who was joint with his father, was the last male member of the joint family and his estate came to Umabai, his widow, and Murlidhar as the adopted son. But if, as Nani says, Bhagwant predeceased his father, we will have to consider the question of law whether the adoption made by Umabai in 1927 was valid and whether by that adoption Nani was divested of the property.
3. [After discussing the evidence as to when Bhagwant died, his Lordship proceeded:] Generally we agree with the learned Subordinate Judge that the evidence given by the plaintiff on this question of fact is better than that given by the defendant and we find that Bhagwant died before his father.
4. I come now to the issues of law: first, whether the adoption made by Umabai in 1927 was valid; and, secondly, whether the estate which had vested in Nani was thereby divested. At the time the joint family had come to an end, and Nani had succeeded as heir of her father Rajaram, on the death of her mother Krishnabai who had had a widow's estate. The learned Subordinate Judge followed the decisions of this Court, summarized by Sir Dinshah Mulla at pages 520 and 523 of his Principles of Hindu Law, 7th Edn:-
In the Bombay Presidency, a widow may adopt to her husband if an authority to adopt was given to her by her husband. Even in the absence of such authority, she may adopt, if the husband was separate at the time of his death, without the consent of her husband's sapindas. But if he was joint, she can adopt only with the consent of his undivided co-parceners.
Section 471 adds that it is only in one or other capacity (i.e. as a widow or mother) that the widow can adopt and in such a case she divests no estate except her own.
5. These authorities have been reviewed by the Privy Council in the recent cases of Bhimabai v. Gurunathgouda Khandappagouda (1932) L.R. 60 IndAp 25 : 35 Bom. L.R. 200 and Amarendra Mansingh v. Sanatan Singh In Bhimabai & case stress was laid on the religious duty of adoption, and their Lordships held that the view taken by a full bench of the Court in Ramji v. Ghamau I.L. R(1879). 6 Bom. 498 was erroneous. In that case it had been held that a widow in a joint family was not entitled to adopt without the consent of her deceased husband's surviving coparceners. It is now clear that consent is implied in all cases. The importance of this case for our present purpose is the insistence on the duty of adoption. This is still more clearly expressed by Sir George Lowndes in Amarendra Mansingh v. Sanatan Singh. A Hindu governed by the Benares school of the Mitakshara law died leaving a son and a widow to whom he gave authority to adopt in the event of the son's death. The son died unmarried. By a family custom females were excluded from inheritance and on the son's death the estate vested in a collateral heir. The widow then adopted. The question was whether an adoption by a widow in whom the estate had not vested was invalid. His Lordship in an exhaustive judgment restated the ruling in Bhimabai's case that adoption is a duty, and stated that ' great caution should be observed in shutting the door upon any authorized adoption'. He added that there must be some limit to the exercise of the power, and the considered the argument that the power to adopt was extinguished on the vesting of the property in an heir other than the adopting widow. Amongst the cases discussed was that of Pratapsing Shivsing v. Amarsingji Raisingji (1918) L.R. 46 IndAp 97 : . 21 Bom. L.R. 496 and I cannot do better than quote his lordship's observations (p. 254):-
In Pratapsing Shivsing v. Agarsingji Raisingji the litigation related to a village which had formed part of an impartible estate in the Bombay Presidency, and had been the subject of a maintenance grant to a junior branch of the family. By the custom of the family such grants reverted to the estate upon failure of male descendants of the grantee. The last holder, Kaliansing, died in October, 1903, childless, but leaving a widow who some five months later adopted the appellant The respondent, the owner of the principal estate, sued for recovery of the maintenance lands on the allegation that they vested in him on Kaliansing's death, and that consequently the adoption was invalid ... Notwithstanding that the property had vested in the respondent, the adoption was held to be good, and the suit was dismissed... It necessarily follows, their Lordships think, from this decision, that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another co-parcener of the joint family, or an outsider claiming by reverter, or, their Lordships would add, by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. If in Pratapsing's case the actual reverter of the property to the head of the family did not bring the power to an end, it would be impossible to hold in the present case that the passing by inheritance to a distant relation could have that effect any more than the passing by survivorship would in a joint family.
This settles the question finally, and it is clear that the vesting of the property in Nani the plaintiff in our case did not extinguish the right of Umabai to :adopt, a right which was co-extensive with her duty to provide a- son for her husband Bhagwant.
6. But it is contended by Mr. Rege that the adoption was only valid for spiritual purposes and that it did not have the effect of divesting the estate which was held vested in Nani. The learned counsel for the respondent has relied on the case of Chandra v. Gojarabai I.L. R(1890) 14 Bom. 463 This case was alluded to by Sir Dinshah Mulla in his judgment in Bhimabai's case. The question, he says, was whether an adoption by the widow of a coparcener, after the death of the last surviving coparcener, and after the estate had vested in his widow or another person as his heir, was valid, and it was held that it was not. The reason for the decision was thus stated by Telang J. (p. 471):-
When the inheritance devolved from Nana (the last surviving coparcener) upon his widow Gojarabai, it devolved, not by succession, as in an undivided family, but strictly by inheritance, as if Nana had been a separated house-holder. Strictly speaking, according to the view taken by our Courts, there was at Nana's death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption.
This case, then, merely decided that after an undivided family has come to an end the adoption by a widow of one deceased coparcener cannot give the adopted son the status of a coparcener so that he will be able to divest the estate vested in a nearer heir to the last male holder. This case we ourselves have followed recently in Dhondi Dnyanoo v. Rama Bala (1935) 38 Bom. L.R. 94 where we held that although an adoption was legal and valid, it did not entitle the adopted son to the property which was in the hands of a senior heir. The same view has been taken by Broomfield and Macklin JJ. in Shankar v. Ramrao : AIR1935Bom427
7. Mr. Rege would distinguish Amarendra's case by the fact that in that case the widow had been given authority to adopt in the event of her son dying. The learned counsel argues that in this case as Umabai had no express authority to adopt, no fresh adoption by her was invalid. We do not agree with this view. Amarendra's case was one from Benares and according to the Benares school of Hindu law no widow can adopt without authority. In-Bombay the authority is presumed and therefore it may be said that Umabai had authority.
8. The third argument of the learned counsel for the respondent is that Umabai's power to adopt came to an end on the death of Rajaram because Rajaram's widow, Krishnabai, took the property as hers, and he contends that a widow can only adopt to the last male holder. This view, we think, is inconsistent with the decisions of Bhimabai's case and Amarendra's case, which, as I have said, lay stress on the duty of adopting and do not restrict the power of adopting to the widow of the last male holder.
9. Lastly, the learned counsel for the respondent has urged that there is no Bombay authority for the view that an adoption, even if valid, can divest the estate of any one but the adopting widow. This is correct. The question has always been as to the validity of the adoption. In no case has the question been what is the effect of a valid adoption. But it has always been, assumed that the effect of a valid adoption is to give the adopted son the Status of a natural son of his father for all purposes. Therefore, if, as we hold, the adoption by Umabai was a valid adoption, then naturally Murlidhar, the adopted son, must have the rights which are due to him as the son of Bhagwant and grandson of Rajaram. In Bhimabai's case and in Amarendra's case, which follow closely the case of Pratapsing Shivsing v. Agarsingji Raisingji, the adopted son obtained a decree for possession, and apparently was never argued that if the adoption was valid the adopted son was not-entitled to possession. We must, therefore, hold that the adoption in this case was legal and valid and that the adopted son (Murlidhar) is entitled, to the estate of Rajaram. As the son's son of Rajaram he is a nearer heir than Nani, Rajaram's daughter.
10. The appeal, therefore, will succeed. We reverse the decree of the lower. Court and dismiss the suit. In the circumstances of this case each party will, bear its own costs throughout.
11. I agree.