1. The fads, which have given rise to these appeals, are few and undisputed. The following table indicates the relationship of the parties.
Adgouda, the second son of Tatya Patil, was given in adoption in another branch of the family. He suffered from leprosy during the last few years of his life and on the 7th June 1909 he executed a vyavasthapatra whereby he made a provision for the maintenance of his wife and motlier and gave the rest of his property to his natural brother, Narsagouda, who is defendant No. 2 in the suit, by way of gift, lie changed his mind later and on the and September 1909 adopted his natural sister's son who is defendant No. 1 in the suit. Ho cancelled the vyavasthapatra on that very day and subsequently in July 1910 obtained a release from his natural brother, whereby all his property given by way of gift was reconveyed to him except certain land and a moiety of the house, which defendant No. 2 retained for himself. We are not concerned with the portion thus retained by defendant No. 2 in this litigation. Adgouda died in 1911 leaving a widow Sitabai and the adopted son Bhujgounda. In November 1912, Sitabai adopted the plaintiff, Bhau.
2. On behalf of Bhau and as his guardian Sitabai filed the present suit in October 1914 to recover possession of the property of Adgouda from defendant No. 1, the boy adopted by Adgouda during his life-time, and defendant No. 2 who was said to be in wrongful possession of the property in collusion with defendant No. 1.
3. In the trial Court and in the Court of first appeal, the plaintiff succeeded on the ground that the adoption of defendant No. 1 by Adgouda was invalid, and that., therefore, the subsequent adoption of the plaintiff by Sitabai was valid. Both the defendants appealed to this Court and the learned Chief Justice, who heard the appeals, held that the adoption by Sitabai during the life-time of defendant No. 1 wan invalid, and dismissed the plaintiff's suit with costs throughout. The plaintiff has preferred separate appeals under the Letters Patent. I do not quite understand why there are separate appeals, when they arise out of the same suit, We are not concerned, however, with that point.
4. On the facts as stated above, it is urged on behalf of the plaintiff that the adoption of defendant No. 1 was invalid, as he was the son of Adgouda's natural sister, and that Sitabai the widow of Adgouda was entitled to ignore that adoption as being invalid and to effect another valid adoption.
5. As regards the first point I do not desire to express any opinion. No special custom is proved, and both the trial Courts and the Court of first appeal have held that the Hindu law applicable to the three regenerate classes is applicable to the present parties. It is also settled now that the adoption of a sister's son is invalid among the regenerate classes in the absence of any special custom to the contrary. The question that arises is whether the rule applies to the case of an adoption of a sister's son, when the adoptive father long before the date of the adoption has left his family of birth and passed by adoption in another family or in another branch of the same family as in the present ease. In other words the question is whether the restrictive rule is to be limited strictly to cases of brother and sister or whether it could apply to a case whether the brother has passed by adoption into another family and the former relationship is modified to that extent. No decision on the point has been cited to us : and in spite of opinions against the validity of such an adoption I am not' prepared to decide the question without a full argument and consideration of the scope of the rule whereby the adoption in three specific cases including the case of a sister's son is prohibited.
6. Assuming, without deciding, that the adoption of defendant No. 1 by Adgouda was invalid, the question is whether Sitabai, the widow of Adgouda, could make another adoption to her husband during the life-time of the boy adopted by her husband. The point is one of first impression. No reported precedent on the point has been cited to us: and it must be considered in the light of the power, which the widow has in this Presidency to adopt, in the absence of any prohibition expressed or implied by her husband.
7. It seems to me clear that the widow is bound by the act of her husband and to accept all the implications of an adoption by him valid or invalid. In spite of the liberal interpretation of her powers to adopt in this Presidency, I do not think that the Hindu law contemplated, and certainly it has not provided, that the widow could practically ignore and supersede her husband's act of adoption. There is no authority for it: and I think that the general effect of the Hindu law of adoption is against such a power. Even an invalid adoption may become effective under certain conditions; and the wife-or rather the widow-cannot go against her husband's wishes so unequivocally expressed or treat the adoption by her husband as non-existent.
8. According to the decisions of this Court she can adopt only in the absence of a prohibition by her husband. That prohibition may be express or implied; and in the present case the least that is implied by the husband's act of adoption is that his widow shall not adopt any other boy to him during the life-time of the adopted boy or until the adoption is declared invalid by a competent Court at the instance of somebody other than the widow interested in the estate.
9. The law of adoption as administered in this Presidency does not interfere with the complete control of the husband over the adoption: that control can be exercised even after his dentil over his widow as to whether there shall be any adoption to him and if be, whether the selection of the boy shall be regulated in any way. The widow is of course free to act where the control is not exercised by the husband : but it seems to me that it would be inconsistent with the control which the husband has over the act of adoption to him, to allow his widow to give a complete go-by to his act and to let her act as she has done in this case.
10. The following observations of Westropp J. in Bayabai v. Bala Vcnhitesh Ramakant (1866) 7 B.H.C.R. Appx, I, xvii, appear to me to be pertinent to the present point :--
Assuming, but not deciding, that the deviation of the Maratha school is established to the furthest extent to which any of the foregoing authorities reach (namely, that the widow may, without express auhority or order from her husband, and without the consent either of his or her relations, adopt a son), and without in the least degree wishing or intending to infringe on the law of adoption by a widow so fir as it can be considered as established in Maharashtra, cherished as I believe that law to be by the Hindu community, or a very considerable proportion of it, yet I am not disposed to extend it, or to depart from the general Hindu law one single step further than provincial or local usage has firmly settled as admissible. And I have not any doubti that we should extend it much beyond its present boundaries, were we to hold that the widow may adopt where the husband has, when perfectly in the possession of his senses, as well on the day preceding his death, as on the day of his death, in reply to suggestions that he should adopt a son, positively refused so to do.
11. I do not think that the observations of Sir Lawrence Jenkins, C.J. in Lakshmibai v. Sarasvatibai I.L.R (1899) Bom. 789; L.R. 420 on the question whether the widow's power to adopt rests on any delegation from her husband or is her own inherent right affect the present question. Taking the widow's right to be inherent and not merely delegated it is clearly subject to the control of the husband as stated in that case. In fact in that case the learned Chief Justice proceeded to consider whether the prohibition by the husband was implied or not. I do not think that the observations in Sri Balusu Gurulingaswami v. Sri Balusu Rama-lakshmamma on the decision in Lalcshmappa v. Ramava (1875) 12 B.H.C.R. 364 which have been referred to by Candy J. in Laxmibai's case, affect the present point in any way: and I see no reason to think that by those observations their Lordships of the Privy Council meant to cast any doubt on the proposition that the husband can control the power of the widow to adopt after his death expressly or impliedly by his acts.
12. I may refer to the following observations of their Lordships of the Privy Council in Yado v. Namdeo (not yet reported):-
The Hindu Law in the Maratha country of the Presidency of Bombay and in Gujarat as to the power of the widows to adopt to their deceased husbands differs widely from the Hindu Law as it has been variously interpreted in other parts of India but whether it is the original law on the subject or as the learned Judge in Ramji v. Ghamau (1879) I.L.R. 6 Bom. 498 assumed, a deviation from it is not now an easy question to decide with certainty: probably it is a deviation.
13. I may respectfully add that whether it is a deviation or not it cannot be extended in favour of the widow in the sense in which the appellant seeks to extend it in this case without deviating from the fundamental basis of the law of adoption.
14. It is urged by Mr. Coyajee that Adgouda himself could have repudiated this adoption as it was invalid in law, and that therefore it was open to the widow to do the same thing after her husband's death provided she did so within the period of limitation allowed by law. This argument ignores the fundamental difference between the power of the husband to adopt a particular boy or not to adopt at all and the position of the widow with reference to her husband's act. Assuming, without admitting, that Adgouda could have repudiated the adoption of defendant No. 1 during his life-time even though it had taken place in fact, it does not follow that his widow could do so after his death when he had given no indication whatever in his life-time that he ever intended to go back upon it. It seems to me that the widow was bound to accept the adoption by her husband as an existing and binding fact: and on that basis the adoption by her during the life-time of the adopted son is clearly invalid.
15. It is also urged en behalf of the appellant that the adoption of a sister's son is invalid, and does not require to be set aside and that therefore the widow could act as if it had not taken place. I have considered the decision in Gopal Narhar Safray v. Hanmant Ganeah Safray I.L.R (1879) Bom. 273 as bearing on this point. But the point which arises in the present case did not arise in that case: and the real answer to the argument is afforded by the consideration that the widow is bound by the act of her husband. It may appear somewhat anomalous that the widow should not be allowed to treat as non-existent an adoption by her husband which is invalid. But I do not think that there is anything anomalous in the widow being required to accept the act of adoption by her husband with all its implications at least so far as she herself is concerned.
16. I would, therefore, affirm the judgment appealed from and dismiss these appeals with costs.
17. I concur. In my opinion, the fact that Adgouda adopted defendant No. 1 and treated him as his adopted son till his death amounts to an implied prohibition against the widow adopting another boy during defendant No.l's life-time, at any rate until his adoption is declared invalid at the suit of some one interested other than the widow.