Basil Scott, Kt., C.J.
1. In my opinion the question referred is one not necessarily involved in the decision of the case, and one which should not now be considered. The alternative suggestion in the referring judgment is that the question for our decision should be limited with reference to the facts of the case. I agree that it should be so limited but I do not think that in that condition it is uncovered by sufficient authority.
2. The document which purports to transfer the absolute interest in certain immoveable property to the daughter of the adopting mother also reserves for the use of the latter all the rest of the property then in her possession for life subject to certain outstanding charges for maintenance of other widows. Notwithstanding this reservation, the adopted son sued for the Hrtroteof the property of his adoptive father in Suit No. 212 of 1895 immediately he attained majority and obtained possession of that property under a decree of the Court from his adopting mother. For this reason the facts of the case do not give rise to the general question stated in the referring judgment.
3. We must take the question for our decision to be, whether a settlement of immoveable property by an adopting widow in favour of her daughter to take effect upon the daughter attaining majority assented to by the natural father of the adopted boy at the time of the adoption can be enforced by the daughter against the adopted son who repudiates it on attaining majority ?
4. The exact terms of the settlement were as follows :- 'My daughter is entitled to immoveable property valued as above. Until she attains majority it should be in my possession. I myself shall carry on Vahivat of the same. When she attains majority and marries it should be given into her possession. Even if I subsequently adopt a son he has no ownership and right to this share.' As observed in the referring judgment an agreement, by which the adopting widow is to be allowed to retain her life-estate notwithstanding the adoption, differs in fact and in principle from an agreement under which power 13 conferred on her which as a widow enjoying the life-estate she could by no other means obtain.
5. In Ravji Vinayakrav v. Lakshmibai ILR (1887) 11 Bom. 381, Farran J. stated that if the stipulations of an agreement contemporaneous with an adoption were unreasonable such as giving to the widow an absolute power of disposition over the property they should be rejected as ultra vires of the father of the adopted boy. In Venkappa v. Fakirgowda : (1906)8BOMLR346 an appellate Bench of this Court following the test suggested by Farran J. held that stipulations in an agreement made on the occasion of adoption between the natural parent and the adoptive mother whereby the latter was invested with a power to make a gift of her husband's property to her brother were not binding upon the adopted son. This decision appears to have escaped the notice of the referring Bench. It has never been questioned in this Court nor I believe in any other Court in India and it is certainly not in conflict with the decisions of the Privy Council alluded to in the referring judgment: Ramasawmi Aiyan v. Vencataramiyan and Bhaiya Rabidat Singh v. Maharani Indar Kunwar .
6. The learned pleader for the plaintiff has, however, sought to justify the gift to his client by reference to certain texts which were acted upon in Churaman Sahu v. Gopi Sahu ILR (1909) Cal. 1, in which it was held that it is competent to a Hindu widow governed by the Mitakshara law to make a valid gift of a reasonable portion of the immoveable property of her husband to her daughter on the occasion of the daughter's gavna ceremony (at which the marriage of the daughter would be completed and consummated) and that such a gift is binding on the reversionary heirs of her husband.
7. The texts in question are Manu, Book IX, verse 118, 'But to the maiden sisters the brothers shall severally give portions out of their shares each out of his share one-fourth part. Those who refuse to give it will become outcastes,' and Yajnyavalkya, verse 124, ' Uninitiated sisters should have their ceremonies performed by those brothers who have already been initiated giving them a quarter of one's own share.' It is to be observed that the verse of Manu is one of a group of verses (111 et seq.) relating to partition.
8. I am unable to hold that the decision of the Calcutta High Court has any application to the present case where by reason of the adoption a brother would be in existence who could perform such duties as are imposed upon him by the texts in question. Nor can they apply to a case where the settlement of property is made upon the sister neither on the occasion of a partition nor on the occasion of her marriage.
9. For the above reasons I would answer the amended question in the negative.
10. I concur.
11. I concur.
12. I agree.