(1) This appeal arises out of a suit instituted by plaintiff for possession of certain immoveable properties which originally belonged to one Madhavrao.
(2) The following pedigree will show the relationship of the persons to whom reference will have to be made in the course of this judgment:
MADHAVRAO - BHIVRABAI___________\__________ Kondbarao - Banubai Ramrao Sahebrao(Plaintiff)________________ (Adopted) Rangrao (Defendant No.2)(Adopted)
Kondbarao died during the lifetime of his father Madhavrao and his mother Bhivrabai. He left behind him widow Banubai. Thereafter Madhavrao died, leaving behind him his second son Ramarao his widow Bhivrabai and his daughter-in-law Banubai, the widow of his pre-deceased son Kondbarao. Some time after the death of Madhavrao, Ramarao also died.
(3) It is the case of the plaintiff that Ramarao died unmarried and his mother Bhivrabai became his heir and thereafter she adopted him as a son to her deceased husband Madhavrao and executed a deed of adoption in his favour of 10th March 1950; as such adopted son he claims the property in suit.
(4) Defendant No. 2 alone contested the suit. He contended in his written statement that Ramarao was married at the time of his death and after death his widow went to her parents' house and never returned to her husband's place. He pleaded that Kondbarao's widow Banubai adopted him as a son to her deceased husband and executed a deed of adoption in his favour on 8th July 1950. He further contended that plaintiff's adoption was invalid as at the time of his adoption Bhivrabai had no power to adopt a son to her deceased husband.
(5-7) It is admitted in this appeal that Kondbarao died first and then his father Madhavrao and that Ramarao died last. There is also no difficulty in holding that Ramarao died unmarried.
(After discussion of evidence His Lordships held that Ramarao died unmarried, that plaintiff had duly proved his adoption as having been performed on or about 2nd March 1950, and that defendant No. 2's adoption must have been performed some time in June 1950.)
(8) The facts proved therefore are that Ramarao died unmarried and his natural mother Bhivrabai became his heir; then she first adopted plaintiff in March 1950 and thereafter in June 1950 her daughter-in-law adopted defendant No. 2. The question then arises : Are the adoptions of plaintiff and defendant No. 2 valid?
(9) According to the Maharashtra School of Hindu Law by which the parties in this case are governed a widow has in herself power to adopt, subject only to such restriction, if any, as may have been imposed upon her by her husband. In Amarendra Mansingh v. Sanatan Singh their Lordships of the Privy Council observed that having regard to the well-established doctrine as to the religious efficacy of adoption (sonship) great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man (page 249 (of Ind App) : (p. 158 of AIR). In K. Suryanarayan v. P. Venkata Ramana, 33 Ind App 145, their Lordships of the Privy Council referred with approval to a passage in the judgment reported in ILR 18 Cal 395, Surendra Nandan v. Sailaja Kant Das Mahapatra where the learned Judges of the High Court at Calcutta stated:
'Looking at the religious efficacy that ensues from the adoption of a son by a widow to her deceased husband we think the Court should not be too astute to defeat an adoption but should rather do its utmost to support it unless such adoption is clearly in excess or in breach of the power to make it.'
(10) In paragraph 471 of Mulla's Principles of Hindu Law (XII Edition) it is stated:
'(1) A widow's power to adopt continues all her lifetime-
(i)in all cases where her husband has died without leaving any son;
(ii) in cases where her husband has left a son, if the son dies leaving her (his mother) as his nearest heir.'
(11) In the present case, Madhavarao left his son Ramarao behind him and Ramarao died leaving behind him his mother Bhivrabai as his nearest heir. This case therefore is directly covered by paragraph 471 (1) (ii) mentioned above and then can be no question that Bhivrabai could validly adopt the plaintiff as a son to her deceased husband, Madhavra. their Lordships of the Privy Council observed that it was 'settled law that where the son 'dies in infancy' or before attaining what is often referred to as 'ceremonial competence' leaving his mother as his heir, her power of adoption is still exercisable.'
(12) Mr. V. S. Deshpande, however contends that at the time when Bhivrabai purported to adopt the plaintiff, her power to adopt a son to her husband was already gone as her daughter-in-law Banubai was there in the family competent to continue the line by adoption. It is true that there are some well-recognised limitations on the widow's power to adopt apart from those that limit the power of her husband, i.e., she cannot adopt so long as there is a son, grandson or great grandson, natural or adopted, of her husband, in existence. The question of widow's power of adoption and the limitations thereon came up for consideration before the Supreme Court in Gurunath v. Kamalabai : 1SCR1135 . After reviewing the leading decisions on the subject, their Lordships held that
'the result of these series of decisions is that now for about three quarters of a century the rule that the 'power of a widow to adopt comes to an end by the interposition of a grandson or the son's widow competent to adopt' has become a part of Hindu Law.'
On examination of the facts of the case which was before their Lordships and of the earlier cases reviewed by them it will be seen that they all deal with the question of the power of the mother to adopt when after her husband's death her son dies leaving behind him his own widow or his own son who also subsequently dies. It is on these facts that the true reason of the rule as to the termination of the widow's (mother's) power to adopt was stated to be that
'where the duty of providing for the continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone.'
(13) In the present case, however, the duty of providing for the continuance of the line which was upon the father Madhavrao was never assumed by his son Kondbarao as he died before his father. The distinguishing fact of the present case is that Kondbarao pre-deceased his father Madhavrao and the duty of providing for the continuance of the line was assumed by his other son Ramarao who survived his father and therefore the power of the widow which was in abeyance during the lifetime of her son Ramarao revived on Ramarao dying unmarried and leaving her alone as his nearest heir; the duty of providing for the continuance of the line of her husband will then be laid upon her.
(14) Mr. V. S. Deshpande relied upon the first of the three propositions affirmed and laid down by their Lordships of the Supreme Court, which is stated as follows:
'that the interposition of a grandson, or the son's widow competent to continue the line by adoption brings the mother's power of adoption to an end.'
He contended that the existence of Banubai, though a widow of a predeceased son, was 'interposition of the son's widow' within the meaning of the rule above stated and in support of his contention, he relied upon a Full Bench decision of the former High Court of Hyderabad reported in (S) AIR 1957 Hyd 1, Mukta Narhari v. Mukta Rajiah. It must be conceded that the facts of that case were similar to those in the instant case and the decision of the Full Bench fully supports the contention of Mr. V. S. Deshpande. In that case one Kistanna had two sons - Bapu and Rajiah. Bapu predeceased Kistanna and left behind him his widow Poshakka. Thereafter Kistanna died survived by his other son Rajiah, his widow Pullamma and Poshakka, the widow of his pre-deceased son Bapu. Rajiah was the last male holder of the estate and he died some years after, leaving behind him his mother Pullamma as his nearest heir and Poshakka his brother's widow. Pullamma then adopted one Namdeo as a son to her deceased husband Kistanna. On these facts the learned Judges considered the presence of Poshakka as
'interposition of a son's widow' and stated, 'in our view the test for determining whether the widowed mother's power to adopt has come to an end is at the time when the death of the last of her sons takes place. If at that time there is a living daughter-in-law; whether that daughter-in-law is (the widow) of the last male holder or of the pre-deceased son, her power to adopt will come to an end.'
Accordingly, it was held that the power of the mother, viz., Pullamma, had come to an end and that she was not entitled to adopt.
(15) With great respect to the learned Judges it does not seem to me that mere presence of a daughter-in-law as in the case before them or in the present case, can amount to 'interposition of the son's widow' so as to bring the mother's power of adoption to an end. The proposition that the interposition of a grandson or the son's widow brings the mother's power of adoption to an end was laid down by their Lordships of the Privy Council in Amarendra's case on a review of the earlier decisions of the Privy Council and of this Court. The earlier decisions made it clear that the widow whose interposition was held to terminate the mother's power of adoption was the widow of the son who was the last male holder. In ramkrishna v. Shamrao, ILR 26 Bom 526, it was held that
'where a Hindu dies leaving a widow and a son and that son dies leaving a natural born or adopted son 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 after words be revived.'
The important words in this proposition of law are 'but his own widow'. In Amarendra's case the son mentioned in the clause 'where a Hindu dies leaving a widow and a son' in the proposition mentioned above was characterised as the penultimate owner. If so, it would be either his own son or his widow who would be the last owner and whose interposition as such owner would bring his mother's power of adoption to an end.
(16) In Anant Govind v. Dnyaneshwar, : AIR1944Bom195 , the facts were that one Balkrishna died leaving behind him his widow Yesubai and two sons Anant and Vithal of whom Anant was married to one Sundarabai, while Vithal was not. Anand, died next and his wife Sudarabai died shortly after words. Then Vithal died unmarried; and thereafter his mother made the adoption. It was held by a Division Bench of this Court that the adoption was valid because on the death of Vithal without widow or issue, his mother was the only person in the family who could continue the line by adoption. This decision was followed in Pandurang Bhau v. Changunabai, 46 Bom LR 913: AIR 1945 Bom 164. In this case, Bhau and his two sons Kushaba and Lahu formed a joint Hindu family. Bhau died first, leaving his widow Manjulabai and his two sons. Kushaba died next leaving his widow Changunabai. The second son Lahu dies last. Manjulabai then adopted a son to her husband. It was held that as the younger son Lahu had died without leaving a widow or a son the mother's power of adoption had not come to an end and she could thereafter make a valid adoption. In the course of his judgment Mr. Justice Chagla (as he then was) observed:-
'As pointed out in it is only the interposition of a grandson or a daughter-in-law that extinguishes the power of the mother to adopt. Now that test has got to be applied when Lahu died on November 15, 1933. Lahu neither left a son nor a widow and there being no interposition, so far as Manjulabai was concerned, of a son or a widow of lahu, Manjulabai's power to adopt was not extinguished; nor did it come to an end. To my mind the fact that at the time of Lahu's death, another daughter-in-law was in existence is irrelevant.'
Thus, it is clear that the person 'interposing' would be the person who would subsequently come in and intervene as the last heir or owner after the death of the penultimate owner, the son, and the mere existence of another daughter-in-law would not be a relevant consideration in the determination of the mother's power of adoption and cannot bring such power to an end. These two decisions, in my view, apply to the present case and with respect I follow them and hold that plaintiff's adoption by Bhivrabai as a son to her deceased husband Madhavrao is perfectly valid. I do not think that the authority of these cases is in any way shaken by the subsequent decision of this Court reported in 51 Bom LR 466: AIR 1949 Bom 311, Shamrao Babaji v. Bhimrao Kondi, as suggested by Mr. V. S. Deshpande.
(17) I do not also feel any difficulty in holding that the adoption of defendant No. 2 by Banubai as a son to her deceased husband Kondbarao is valid. Kondbarao died without leaving any son and therefore, his widow could validly adopt a son to her husband as stated in paragraph 471 (1) (i) of Mulla's Principles of Hindu Law, mentioned above.
(18) Since I have held that plaintiff is the validly adopted son of Madhavrao and that defendant No. 2 is the validly adopted son of Kondbarao the suit properties. Accordingly, the appeal is partly allowed decrees of the lower Courts are set aside and I pass a decree for partition and separate possession of on-half share in the suit properties in favour of the plaintiff. The partition and possession of the properties assessed to the payment of revenue to the Government to be made by the Collector in accordance with the provisions of Section 54 of the Civil Procedure Code. No order of costs throughout.
(19) Appeal partly allowed.