1. In the action which has given rise to this second appeal a junior widow sued a person adopted by her senior widow for the property which went to the adopted son by adoption. It was agreed at the trial that the issue relating to the validity of the adoption should be determined first, on the assumption for the sake of argument that the adoption had in fact taken place. Both the Courts below have held that the adoption was an invalid adoption and, there being no other effective defence to the suit, the plaintiff was bound to succeed. They therefore passed a decree for possession of the property in favour of the plaintiff and the defendant has appealed.
2. The only question with which we are concerned in this appeal is whether the adoption, assuming that it took place, is valid. It is to be noticed that the adoption was by a step-mother of the last male holder. The late husband of the two widows, Dhondi, died leaving a son to his junior widow in addition to the two widows. The son died himself childless and unmarried, and on his death the property went to his mother, who has accordingly been divested by the adoption set up by the defendant. In holding that the adoption is invalid being an adoption by a step-mother of the last male holder, the Courts below have relied on three decisions of this Court: Anandibai v. Kashibai . 6 Bom. L.R. 464 Hirabharthi v. Bai Javer : (1928)30BOMLR1555 , and Bassangowda v. Rudrappa 30 Bom. L.R. 591. On behalf of the unsuccessful defendant it has been argued that all three cases have been impliedly overruled by reason of the decision of the Privy Council in Amarendra Mansingh v. Sanatan Singh 35 Bom. L.R.859followed as it was by a later decision of the Privy Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil 46 Bom. L.R. 1.
3. It will be convenient to deal with the decision of the Privy Council before dealing with the decisions of this Court, In Amarendra's case it was laid down with a good deal of emphasis that great caution should be observed in shutting the door upon any authorized adoption by the widow of a sonless man; and since the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line, the true basis of an adoption must be spiritual considerations rather than considerations of property. There had been a long line of decisions of this Court in which the vesting and devesting of property had been regarded as in one way or another a test of the validity of certain classes of adoption; but the Privy Council held that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it another co-parcener of the joint family or an outsider claiming by reverter or even by inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. Amarendra's case was a case of an adoption to her husband by the mother of a son who himself died sonless and unmarried, and the adoption was upheld by the Privy Council in spite of the fact that the property had vested absolutely before the adoption in a person other than the adopting widow. It is true that in one part of their judgment their Lordships agreed that there must be some limit to the exercise of the power of adoption, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit the continuance of the power to adopt or inequitable in the face of other rights to allow it to take effect; see p. 249. But it is evident that their Lordships did not consider it inequitable to disturb the rights of the person holding the property ostensibly as an absolute owner in Amarendra's case. It is argued with some force that a fortiori the case with which we are now dealing, being a case of disturbing the rights of one who is only a limited owner, cannot be regarded as a case where it would be inequitable to allow the ordinary consequences of an adoption to take effect. Not long after the decision in Amarendra's case a full bench of this Court in dealing with a case of adoption agreed to the validity of the adoption but refused to give effect to it on the ground that to do so would be divesting someone other than the adopting widow of property which had legitimately vested in him. But in Anant Bhikappa Patil v. Shankar Ramchandra Patil the decision of the full bench was overruled, their Lordships holding that it was necessary to allow the ordinary consequences of adoption to take place.
4. In view of these decisions the question is whether the decisions relied upon by the plaintiff can any longer be considered to be good law. Anandibai v. Kashibai decided that the consent of the junior widow is necessary to an adoption by the senior widow if the junior widow has inherited the property of her son as last male holder; and since it would be too much to expect her to give consent to an adoption by the senior widow in such circumstances, the case is really a case of the ordinary power of the senior widow to adopt without the consent of the junior widow being limited in the special circumstances of that case. Hirabharthi v. Bai Javer is an authority for the view that a power to adopt given to a junior widow by her husband comes to an end on the death of the son of the senior widow, since the property of the senior widow's son then vests in the senior widow. The third case, Bassangawda v. Rudrappa, was a case of a step-mother adopting after she had inherited the property from her step-son, who had died sonless and unmarried and motherless. It was nevertheless decided that the step-mother could not adopt.
5. We have examined these cases, and we are satisfied that the ultimate basis of the decision in every one of them was the vesting or devesting of property, which in the light of the decision of the Privy Council in Amarendra's case cannot be considered to be a good basis and in so far as there is no other basis for the decisions, the cases must be considered as impliedly overruled. We are unable to find any other basis in Hindu law or in logic for these decisions other than the vesting and devesting of property; and we therefore think that they are no longer authorities which ought to be followed, still less authorities which we are bound to follow.
6. On behalf of the plaintiff it has been argued that Amarendra's case does not in terms overrule any of these cases and that we ought not to treat them as no longer good law if that can possibly be avoided. The Privy Council, in a passage occurring at p. 256, say that the interposition of a grandson or a son's widow brings the mother's power of adoption to an end, but the mere birth of a son does not do so, and this is not based upon a question of vesting or devesting of property. Their Lordships thought that the true reason must 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; but if the son dies himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the son's lifetime will revive.
7. It is argued for the plaintiff that this revival in the mother is a special exception to the rule that it is from the last male holder that the line is continued by adoption. We are not aware ourselves of any such rule, the rule in our opinion being that any widow has a right to adopt to her husband unless her power to adopt has come to an end. But whatever the rule may be, emphasis is laid in the argument upon the fact that the Privy Council refers only to the mother and does not refer to a stepmother. We are referred at the same time to some remarks of Mr. Justice Divatia in Sadashiv v. Reshma : AIR1938Bom1 , which treats Anandibai's case as being still good and by implication supports the argument that the Privy Council could have been referring only to mother as distinct from a step-mother. But I have already given reasons for holding that Anandibai's case is no longer an authority; and, in the absence of the three judicial decisions which in our view are overruled by Amarendra's ease, there is no reason that we can see for distinguishing between a step-mother and a mother for the purposes of the exception laid down by the Privy Council to the ordinary rule, if indeed it is an exception. The mother and the step-mother are equally widows of their husband and that the widows would normally have priority in the matter of adoption, each has power to adopt to her husband in the absence of special reasons to the contrary. After all the adoption is not to the son or step-son but to the late husband of the adopting mother. So far as we can see, it is impossible to exclude a step-mother on any principle except the outworn principle of devolution of property. We think therefore that the Courts below were wrong in rejecting the adoption as invalid and the case must therefore go back for determination on the rest of the issues that arise.
8. Our attention has been drawn to a statement at the beginning of the judgment of the lower appellate Court to the effect that the property in suit was the exclusive property of Dhondi, the adoptive father. We do not know how far that statement is accurate; nor do we know exactly its implications. But if it means that the property was the self-acquired property of Dhondi, then it would not necessarily follow that the adoption of the defendant gave him an interest in Dhondi's property from the date of his adoption to the extent of enabling him to divest the plaintiff of property which had come to her from her son. If there is any question of the property being the self-acquired property of Dhondi, there ought, we think, to be an issue to that effect.
9. The costs of the appeals will be paid by the respondent plaintiff.
10. All the three cases of this Court which are relied upon by the respondent proceeded upon the basis that the adoption was invalid, because it would have the effect of devesting a property which has once vested. The earliest ease, Anandibai v. Kashibai 6 Bom. L.R. 464 as a matter of fact, referred to two Calcutta cases which held, when holding that the adoption itself was valid, that it could not. have the effect of devesting the property which was once vested. It is quite clear that now that the basis of these cases has gone in view of the decision of the Privy Council in Amarendra's case as well as in the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil (1943) 46 Bom. L.R. 1 they are no longer any authority for the proposition that a step-mother has no authority to adopt when the mother is alive even if she is the senior widow.
11. The learned advocate, who appears for the adopted son, relies, however, on the judgment in Amarendra's case, page 256, which has been referred to by my learned brother. It is true that the word used there is 'mother'; but their Lordships were considering a case in which that word is proper. The question is as to whether there is any reason for supposing that the word does not include a step-mother. It has to he remembered that their Lordships of the Privy Council quoted with approval the full bench case of Ramkrishna v. Shamrac 4 Bom. L.R. 315 and the rule as to when the power of a widow came to an end was stated there with reference not to the words 'mother and son,' but 'widow and son,' and it is obvious that the word 'son' must include a step-son, because otherwise the widow's power would not come to an end even if her step-son died leaving a son or leaving a widow, and there is no authority whatsoever for the proposition that her power does not come to an end even in these circumstances.
12. The learned advocate who appears for the respondent has tried to make out that the power of a step-mother comes to an end immediately upon the birth of a son to a co-wife. That would lead to this anomaly that if the father died leaving two widows and a son by the junior widow and if the junior wife died before the son, the senior widow could not make any adoption at all, and we do not think that we should adopt a construction of the words which were used by their Lordships (assuming those words could be construed like the words of a statute) which would make a line extinct in certain circumstances.
13. The last point which was made was with regard to there being some sort of preference in this case. It was said that between the two widows after all the senior widow was given a preference when the junior widow had no son. It is said that in case a father died leaving two widows and the junior widow had a son, in that case the very fact that she had given birth to a son may entitle her to some preference over the senior widow who had no son when the father died. That might have been made a ground of preference, but even though there has been discussion and rulings on the question with regard to the powers of the two widows to adopt, and on the question whether consent of the one or the other was not necessary, nowhere has there been any mention made that the junior widow could make a valid adoption in case she had given birth to a son. No such preference can therefore be given to the junior widow on the ground that she had a son living when the father died. It is obvious therefore that the result of the Privy Council's decision in Amarendra's case as well as in the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil must be that the three cases of this Court are no longer good law.