1. This appeal from the judgment and decree of the Court of the First Class Subordinate Judge, Ahmedabad, in civil suit No. 893 of 1937 raises, on the findings made by the lower Court and submissions made to us, an important question of law. The dispute related to an undivided one-anna share in the Talukdari estate of the village of Kharad in Dhandhuka taluka of the Ahmedabad District. The relationship of the parties to the suit is shown by the genealogy in the judgment of the lower Court. The ancestor of the parties was one Akhabhai who died leaving two sons, Abhesang and Dehabhai. Although the matter was in dispute before the trial Court, it is now conceded, as found by the learned trial Judge, that Abhesang and Dehabhai were divided and that the property in suit came to the share of Dehabhai. Dehabhai had a son, Dajibhai. Dajibhai died leaving two sons, Ramabhai and Balubhai. In the trial Court a question arose whether Ramabhai and Balubhai were joint or divided. It has been found by the learned trial Judge that they were joint, and this finding is not disputed before us. Balubhai died in 1902 leaving his widow Bai Faiba, defendant No. 1. Ramabhai had a son, Vakhatsing, who died in 1913 leaving a son Anupsing who died in 191 & during his minority. Thus so far as Dehabhai's branch is concerned, Anupsing was the sole surviving coparcener. On Anupsing's death the property vested in defendant No. 1 as the widow of a gotraja sapinda succeeding to the estate of Anupsing, the sole surviving coparcener. In 1931 Bai Faiba, defendant No. 1, adopted defendant No. 2. Thereupon the plaintiffs who are the representatives of the branch of Abhesang filed the present suit for a declaration that defendant No. 1 had no right to adopt and that the adoption of defendant No. 2 by her was not valid and lawful. They also asked for a declaration that defendant No. 2 did not acquire any rights over the properties as a result of his adoption. In support of this contention, the plaintiffs relied not only upon the law on the subject but also based their case on an agreement, exhibit 69, dated December 9, 1920, passed by defendant No. 1 to. plaintiffs Nos. 3 and 4. The plaintiffs alleged that by exhibit 69 she surrendered her right of adoption.
2. The defendants resisted the suit on the ground that the deed dated December 9, 1920, was obtained by the plaintiffs by means of fraud and misrepresentation, was opposed to public policy, and was void for absence of consideration. It was contended that there was a partition between Ramabhai and Balubhai, that Ramabhai's property had come by way of inheritance to Anupsing and that on Anupsing's death defendant No. 1 had succeeded to the estate. It was asserted that she had every right to adopt in spite of the document exhibit 69 and that the adoption had in fact taken place. The adoption, it was contended, was legal and valid, conferred title to the property on defendant No. 2, and that, therefore, the plaintiff's suit should be dismissed with costs.
3. The learned Judge disbelieved the defence contention that the document was obtained by fraud and misrepresentation but held that it was not binding on the defendant as it was opposed to public policy and was void for absence of consideration. He also rejected the defence contention that Ramabhai and Balubhai were divided and held that they formed a joint Hindu family. On this view he held that Anupsing was the full owner of the property as the sole surviving coparcener and that on his death defendant No. 1 was entitled to the properties, although she obtained only a widow's estate over them. He found that the adoption of defendant No. 2 by Defendant No. 1 was proved and valid. But relying on the decision of the full bench of this Court in Balu Sakharam v. Lahoo (1936) 39 Bom. L.R. 382. he held that by reason of the adoption defendant No. 2 did not obtain any interest in the property. He accordingly declared (1) that defendant No. 1 had a right to take defendant No. 2 in adoption, (2) that the adoption of defendant No. 2 by defendant No. 1 was proper and legal, and (3) that defendant No. 2 did not acquire any rights over the suit properties as a result of his adoption. He directed that the parties should bear their own costs in the circumstances of the case. It is against this order that the defendants have come in appeal.
4. In the appeal before us the respondents-plaintiffs have filed no cross-objections with respect to the first two declarations given by the lower Court, although the findings were against the stand taken by the plaintiffs. The appeal must, therefore, proceed on the basis of the correctness of those findings. The only grievance that the appellants, therefore, make is that in view of those findings, it should have been held that defendant No, 2 obtained an interest in the properties by reason of the adoption and that the third declaration that the plaintiffs had asked for should also not have been given. In other words, the question that arises in this appeal is this : although defendant No. 1 has a right to adopt and had legally and validly adopted defendant No. 2, whether such an adoption does or does not confer upon defendant No, 2 the right to the suit properties.
5. The lower Court has dealt with the matter as follows :
As there was no partition between Balubhai and Vakhatsing, Vakhatsing alone as a member of a joint family with Balubhai got whole estate in 1902. Anopsing, however, died in 1919 unmarried at the age of 15 and the whole estate came to defendant No. 1 as the only widow of a coparcener alive in that year. The plaintiffs say that they are entitled to get this estate as reversioners of Anopsing subject to the life estate of defendant No. 1 and the defendants allege that defendant No. 1 was entitled to inherit the estate of Anopsing on his death as a widow of a coparcener. The adoption of defendant No. 2 took place after the termination of the co-parcet nary on the death of Anopsing in 1919 and so it had not the effect of reviving the co-parcenary and defendant No. 2 does not get any interest in the property which was once enjoyed by Balubhai and Vakhatsing and which is now in the management of defendant No. 1 as a widow of a coparcener after the death of Anopsing (vide the case of Balu Sakharam v. Lahoo, 39 Bom. L.R. 382 followed in the case of Rudrappa Yellappa Sattennabar v. Mallappa Malleshappa, 41 Bora. L.R. 1277. The adoption by the widow of a co-parcener who was not the last male holder is regarded valid by the above mentioned decisions but such an adoption does not divest the property.
The full bench decision of Balu Sakharam v. Lahoo has since been overruled by the Privy Council in Anant Bhikappa Palil v. Shankar Ramchandra Patil (1943) 46 Bom. L.R. 1c. and the question, therefore, arises whether as a result of this Privy Council decision, the view taken by the lower Court, based as it was on Balu Sakhamm v. Lahoo, is correct or not.
6. The genealogy in the case of Balu Shakaram v. Lahoo Wgiven at page 384 of the report. The joint family there consisted of Balu and his three sons, Babaji, Laxman and Vithal. As a result of the various deaths in the family the last male member was Shiva who died in the year 1919 leaving three widows in the joint family : Tayaji, Bayaji and Gauri. Four years later, i.e., in. 1923, Bayaji adopted Balu, defendant No. 1, and in May 1930 he took possession of the property. In August 1930 Lahoo the plaintiff filed a suit to recover possession of the property. His case was that after the death of Shiva, the last surviving co-parcener, the family property was inherited by Shiva's widow, Gauri, that as she had remarried, the property had devolved on Shiva's sister Audi, and that as he was a purchaser from Audi, he was entitled to the possession of the property. The suit was resisted by defendant No. 1 Balu, his contention being that as he was adopted by Bayaji before Gauri's remarriage, he became the only coparcener in the family and as such was entitled to the property and that Audi had no title to convey the property to the plaintiff. The suit was ultimately decided by a full bench of this Court. The majority view of Beaumont C.J. and N.J. Wadia J. was expressed in the judgment delivered by the Chief Justice, Rangnekar J. dissenting. The majority held that 'where a Hindu coparcenary had come to an end on the death of the last surviving coparcener, and the family property had vested in his heir, a subsequent adoption by the widow of a predeceased coparcener was valid.' According to the learned Judges this was a necessary implication of the Privy Council decisions in Prolapsing Shivsing v. Agarsingji Raisingji 21 Bom. L.R. 496 Yadao v. Namdeo 24 Bom. L.R. 609. Bhimabai v. Gurunathgouda Khandappagouda 35 Bom. L.R. 200. Amarendra Mansingh v. Sanatan Sing 35 Bom. L.R. 859 and Vijaysingji Chhatrasingji v. Shivsangji Bhimasangji 37 Bom. L.R. 562. But they held that such an adoption does not revive the coparcenary and does not vest the coparcenary property in the adopted son to the exclusion of the heir of the last holder other than the widow herself. In giving the decision, the majority of the Judges formulated the following propositions :
(1) A widow of a deceased member of a Hindu joint family can adopt to her husband without obtaining the consent of her husband's relations.
(2) A Hindu widow's right to adopt is based on religious considerations, and is not affected by any considerations as to the vesting or divesting of property.
(3) Where a coparcenary exists at the date of the adoption, the adopted son becomes a member of the coparcenary, and takes his share in the joint property accordingly. This principle applies although the coparcenary is a Zamindari having the peculiar feature of being governed by the rule of primogeniture.
(4) Where the adoption takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a predeceased coparcener has not the effect of reviving the coparcenary, and does not divest property from the heir of the last surviving coparcener (other than the widow) or those claiming through him or her.
The minority view of Rangnekar J. was (p. 443):
Where the coparcenary is extinct and the estate of the last surviving coparcener has passed by inheritance to his heir, the power of a widow of a predeceased coparcener to adopt a son to her husband is at an end and she can not make a valid adoption to her deceased husband... [But] if the adoption was valid, it was valid for all purposes, and the adopted son had all the rights of a posthumous son.
The principles so enunciated came up for consideration of the Privy Council in Anant v. Shankar. The genealogy in that case is given at page 41 of the report. Dhulappa had two sons Punappa and Hanamantappa who were divided long time ago. In the branch of Punappa the last surviving coparcener was Keshav who died in 1917. On his death, his nearest heir was the defendant Shankar who belonged to the branch of Hanamantappa. He obtained possession of the properties from the Collector in 1928. In 1930 Keshav's mother Gangabai adopted the plaintiff Anant and in 1932 the plaintiff by his next friend filed a suit for recovering possession of the properties from defendant Shankar. Following the decision in Balu Sakharam v. Lahoo, the Division bench of this Court held that the coparcenary had come to an end on the death of Keshav and that the subsequent, adoption by the widow in the joint family although valid did not have the effect of reviving the coparcenary and did not divest the property from Shankar who was the heir to the last surviving coparcener. The plaintiff's suit was accordingly dismissed. The matter was then taken in appeal before the Privy Council. Upon the initial question of the validity of the plaintiff's adoption, their Lordships approved the view of the majority of the full bench in Balu Sakharam v. Lahoo-and rejected the view taken by Rangnekar J. They did not accept the view that Gangabai's power to adopt came to an end on the death of her son Keshav by reason of the fact that she was the sole surviving coparcener in the joint family. As regards the effect of the adoption on the devolution of the property, their Lordships observed as follows (p. 8):
Her [Gangabai's] power to adopt could not have been exercised in his lifetime, and if exercised after his death, cannot, as their Lordships think, be given any less effect than would have attached to an adoption made after his death by the widow of a predeceased collateral. It must vest the family property in the adopted son on the same principle, displacing any title based merely on inheritance from the last surviving coparcener.
In coming to this conclusion, their Lordships observed as follows (p. 7):
If then the plaintiff's adoption was valid, can it be held that it does not take effect upon the property which had belonged to the joint family because there was no coparcenary in existence at the date of the adoption On this point their Lordships, differing from the majority decision in Balu Sakharam's case (supra), hold that the adoption being valid cannot be refused effect. Tiiat the property had vested in the meantime in the heir of Keshav is not of itself a reason, on the principles laid down in Amarendra's case, why it should not divest and pass to the plaintiff... Keshav's right to deal with the family property as his own would not be impaired by the mere possibility of an adoption... But in his lifetime adoption by the widow of a collateral coparcener would have divested him of part of his interest and the same right to adopt subsisting after his death must, in their Lordships' view, have qualified the interest which would pass by inheritance from him. As Appwier v. Rama Subba Aiyar (1866) 11 M.I.A. 75 made clear, the fraction which is at any time employed to describe the quantum of the interest of a male member of the family does not represent his rights while the family is joint, but the share which he would take if a partition were then to be; made. His interest is never static but increases by survivorship as others die and lessens as others enter the family by birth or adoption. What principle requires that the death of the last surviving coparcener should present any further fluctuation of the interest to which he was entitled notwithstanding that a new member has since then entered the family by adoption?
Their Lordships quoted with approval the observations of the Nagpur High Court in Bajirao v. Ramkrishna  Nag. 707 :
We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member.
In view of this pronouncement the conclusion arrived at by the learned Judge, based as it is on the dictum in Balu Sakharam v. Lahoo that the adoption though valid, does not give to the adopted son any interest in the property, must be held to be incorrect. If these principles had been applied in Balu Sakharam v. Lahoo Balu's adoption by Bayaji would have resulted in his obtaining full interest in the property of the joint family and the plaintiff would have been non-suited. In the present case also defendant No. 2's adoption by defendant No. 1 would give him immediate interest in the property and divest defendant No. 1, and the plaintiffs' prayer for a declaration that defendant No. 2 acquired no right over the suit properties must be rejected.
7. Although the trial Court did not rely upon it, a case almost exactly on all fours with the case that we have to decide was considered by a full bench of this Court in Krishnaji Raghunath v. Rajaram Trimhak Bom. L.R. 559. The genealogy in the case is given at page 680 of the report. The branches of Keshav, Hari and Rajaram the plaintiffs were divided. In the branch of Keshav the last surviving coparcener was the infant son of Dhondiram. On the death of the infant son in 1900, the property passed to his mother Laxmibai. On Laxmibai's death in 1901 the property passed to his grand-mother Bhagirathibai, and on Bhagirathibai's death, to his paternal aunt, Radhabhai (defendant No. 1). Itadhabhai-who was a widow in the joint Hindu family-then adopted defendant No. 2 and thereupon Rajaram a representative of another branch sued for a declaration that the adoption of defendant No. 2 by defendant No. 1 was illegal and void and that defendant No. 2 obtained no title to the property by virtue of the adoption. This case is exactly like the present one where on the death of the last sole surviving coparcener Anupsing, the property vested in the widow of a collateral who succeeded to him as a gotraja sapinda and thereupon adopted a son, i.e., defendant No. 2, to her husband. As in the case of Krishnaji Raghunath v. Rajaram Trimbak in the present case also the adoption is challenged by a representative of some other braneh in the family and the same declarations as were asked for in Krishnaji Raghunath v. Rajaram Trimbak are being asked for here. If therefore Krishnaji Raghunath v. Rajaram Trimbak is still good law, the decision in the present case must be governed by the decision in that case. The full bench of this Court held that 'under Hindu law, a widow of a gotraja sapinda, who succeeds under the rule established by Lalloobhoy Bappoobhoy v. Cassibai (1880) L.R. 559. cannot by adoption alter, after her own death, the devolution of property to which she is entitled as such widow.' It was further held that 'on the death of the last coparcener in a joint Hindu family, the widow of his paternal uncle succeeded to the family property as the widow of a gotraja sapinda, and the adoption though valid had no effect on the devolution of the property as against the plaintiff.' In coming to this decision the full bench purported to follow the case in Balu Sakharam v. Lahoo and Beaumont C.J. at p. 690 of the report observed as follows :.it was held [in that case] that an adoption by a widow, where the coparcenary is at an end, does not operate to divest property vested in or through the heir of the last holder. So long as that decision stands it must be taken as settled that in this presidency you may have an adoption by a widow which is valid, but which does not place the adopted son in the same position in regard to property as a natural born son would have been in.
It was on this footing that the case was discussed and the full bench came to the conclusion that the adoption of defendant No. 2 was valid but did not affect the devolution of the property inherited by defendant No. 1 as the widow of a gotraja sapinda as against the plaintiff.
8. In view of the Privy Council decision in Anant v. Shankar we think that the decision in Krishnaji Raghunath v. Rajaram Trimbak cannot any longer be held to be good law. It is true as stated by Broomfield J. in that case (p. 695):
There is a strong eurrent of authority in this Presidency to the effect that the widow of a gotraja sapinda cannot adopt so as to defeat the rights of the reversioners. The authority of these cases should not be disturbed unless it is necessary to do so.
But in our opinion the case of a widow of a gotraja sapinda who belongs to the same-joint family stands on a different footing than the case of any other widow of a. gotraja sapinda. Both in the case of Krishnaji Raghunath v. Rajaram Trimbak and in Anant v. Shankar the adopting widow was a widow of a gotraja sapinda and the person who laid claim to the property was a representative of a different branch. In Krishnaji Raghunath v. Bajaram he was a plaintiff and asked for a 'declaration that the adopted son obtained no title to the property by virtue of the adoption. In Anant v. Shankar he was a defendant from whose possession the property was sought to be recovered by the adopted son. Even according to Jialu Sakharam v. Lahoo the adoption was good. But so far as its effects are concerned, the following observations of their Lordships of the Privy Council in Anant v. Shankar apply exactly to the case of Krishnaji Baghunath v. Bajaram Trimbak (p. 8):
Taking first the simpler case where the adoption has been made by the widow of predeceased collateral of the last surviving coparcener, their Lordships find it difficult upon the foregoing principles to discover in the death of the latter before the adoption any ground for denying that the interest of the adoptive father or any part of it passes to the adopted son.
The principle on which their Lordships proceeded was that a joint Hindu family does not come to an end while there is still in that family a potential mother, if that mother in the way of nature or in the way of law brings in a new male member. The view adopted in Balu Sakharam v. Lahoo that the coparcenary in a joint family comes to an end on the death of the sole surviving coparcener is no longer good law, and the adoption by a widow of a gotraja sapinda, so long as such widow is a member of the joint family of which the deceased was the sole surviving coparcener, can bring into the joint family a new member in whom the property vests immediately on adoption as it would have vested if he had been a member of the joint family when the sole surviving coparcener died. The observations of their Lordships of the Privy Council that 'the power of the mother of a sole surviving coparcener exercised after his death, cannot be given any less effect than would have attached to an adoption made after his death by the widow of a pre-deceased collateral 'emphasise the same point. It must vest the family property in the adopted son on the same principle, displacing any title based merely on inheritance from the last surviving coparcener. It must, therefore, be held that the adoption by the widow of a pre-deceased collateral in whom property has vested as a widow of a gotraja sapinda and whose husband was a member of the joint family, has the effect of divesting the property and displacing any title based merely on inheritance from the last surviving coparcener. To that extent it must be held that Krishnaji Raghunath v. Bajaram Trimbak has been impliedly overruled by Anant Bhikuppa Patil v. Shankar Romchandra Potil (1943) 46 Bom. L.R. 1. and is no longer good law. The same conclusion applies to the cases of Subrao Baji v. Dada Bhiwa (1940) 43 Bom. L.R. 492 and Madhavsang Hari-hhai v. Dipsang Jijibhai : AIR1942Bom280 both of which were decided on the authority of Krishnaji Baghunath v. Bajaram Trimbak.
9. Our attention has been invited to a decision of this Court in Sivangauda Bajan-gauda Patil v. Budragauda Ningangauda Patil (1945) S.A. No. 1013 of 1942, decided by Macklin and Rajadhyaksha JJ. On April 6, 1945 (Unrep.) to which I was a party. The genealogy in that case was as follows.
Ninbeppa had two sons Mangauda and Demangauda. These two brothers were divided, and we were concerned in that appeal with the property of the joint family consisting of Demangauda and his son and grand-sons. The sole surviving coparcener was one Shingappa who died in 1918. On his death the property went to his widow Mallawa and on her death in 1925 the property went to Shivgangawa the widow of Rayangauda defendant No. 4. Defendant No. 4 adopted the plaintiff in 1927 and he filed a suit to recover certain properties against persons who were found, as a fact, to be mere trespassers in possession of the estate, though they claimed to be reversioners after the death of Mallawa. It was held in that case that the Privy Council case of Anant v. Shankar had no application and that even though the adoption was made by the widow of a gotraja sapinda, it did not divest the property of the adoptive mother. That case is obviously very different from the one which we have to consider. There the widow who succeeded to the last male holder as the widow of a gotraja sapinda, was not a member of the joint family of Demangauda and could not, therefore, introduce a new member into that joint family by making the adoption of the plaintiff. The whole decision of Anant v. Shankar proceeds on the footing, as I have stated in an earlier part of the judgment, that where the widow of a collateral brings, by means of an adoption, a new member into the joint family, such an adoption has the effect of divesting the estate inherited from the last male holder. In Anant v. Shankar itself, this distinction has been made out for at page 9 their Lordships observe :
Neither the present ease nor Amarendra's case brings into question the rule of law considered in Bhubaneswari Debi v. Nilkomul Lahiri and stated by the Board to be that 'according to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral.
In Bhubaneswari Bebi's case the family consisted of three brothers Rammohun, Shibnath and Kalimohun who were all divided, and the question related to the separate property of Rammohun. After the death of Rammohun the property was inherited by his widow Chandmoni who died in 1867. Before Chandmoni's death, Kalimohun had adopted a son Nilkomul. But Shibnath had died leaving only a widow Bhubaneswari. On Chandmoni's death the property went to Nilkomul. Later on Bhubaneswari adopted a son Jotindra. Jotindra on adoption filed a suit claiming half share in the property of Rammohun, and it was held by their Lordships of the Privy Council that 'an adoption after the death of a collateral does not entitle an adopted son to come in as an heir to the collateral.' This case was very different from the case with which we have to deal. The adoption of the plaintiff in Bhubaneswari Bebi's case did not bring into the joint family a new member, and it was held that 'the plaintiff's adoption did not entitle him to come in as an heir of Rammohun after the property had already vested in Nilkomul as the legitimate heir on the death of Chandmoni.' Following this principle, we held in Sivangauda's case that the plaintiff's adoption did not entitle him to come in as heir after the property of Shingappa had already vested in his heir, who was defendant No. 4.
10. We are, therefore, of opinion, on the authorities as they stand at present, that the adoption by the widow of a gotraja sapinda whose husband was a member of the joint family, after the death of the sole surviving coparcener, displaces any title based merely on inheritance from such coparcener. In the present case, the adoption by Bai Faiba whose husband was a member of the joint family, though made by a widow of a gotraja sapinda in whom the property has vested as an heir confers on the adopted son the right to the property which was held by the sole surviving coparcener, Anupsing. The plaintiff, therefore, is not entitled even to the third declaration which was given to him by the lower Court. That being the ease, in our opinion the appeal succeeds and the plaintiff's suit must be dismissed with costs in this Court. The order of costs in the lower Court will stand.
11. One further point was argued by Mr. R.J. Thakor for the respondents. It was contended that the adoption of defendant No. 2 was bad as it was an adoption made after the property had been surrendered by her under exhibit 69. The lower Court has already held that the document was opposed to public policy and void for absence of consideration. Nothing was urged by Mr. Thakor against these conclusions of the lower Court, and if the document is bad for these reasons, it cannot be relied upon for suggesting that defendant No. 1 had surrendered her property. But even assuming that the document is not bad, it does not, in our opinion, amount to a surrender. Mr. Thakor frankly conceded that if the document was inter paries between the plaintiff and defendant No. 1, it would not amount to a surrender because the only right which the widow had given up under the document was the right to adopt. She retained complete management of the whole property during her lifetime. The learned Counsel however argued that because the document embodied the decisions of arbitrators who might have given nothing to defendant No. 1, it should be regarded as a surrender. In our opinion, there is no substance in this contention. The surrender must be voluntary and not brought about as a result of the widow's leaving the matter to arbitrator. It must be bona fide and total surrender of all the interests of the widow in favour of the nearest reversioners. It must be a voluntary act to efface herself from the succession as effectively as if she had then died. (See Bhagwat Koer v. Dhanukhdhari Prashad Singh 22 Bom. L.R. 477. Judged by these criteria, it seems to us obvious that the document does not amount to a surrender and cannot have the effect which follows from a surrender. In the result, therefore, in our opinion, the appeal succeeds, and the plaintiff's suit, must, as we have stated before, be dismissed with costs in this Court. The order regarding costs in the lower Court will stand.