1. The District Judge has clearly found that the deceased expressed his unwillingness to accede to the suggestion that he should adopt a boy, and, in my opinion, his finding cannot in second appeal be legitimately taken further than that. It is argued for the appellant that some of the witnesses, who have been believed by the District Judge on the above point, have stated that the deceased said that his estate should devolve in a certain manner after his death, for instance, that his two wives should divide the estate half and half or that it should go to his daughter on their death. But the District Judge has not found any such statement proved, and I do not think that in second appeal we can assume any such finding. The question, therefore, in my opinion, is whether the mere fact that the deceased set his face against himself adopting a boy prior to his death amounts to an implied prohibition against either of his two widows adopting. Looking at the case from a general point of view, unaffected by any decisions, it seems to me that it would be dangerous to say that, in every case where a deceased has refused to adopt, he must be taken to be thereby prohibiting his widow from adopting. For instance, in this particular case the suggestion was made to the deceased when he was practically in a dying state, and one can easily realize that a man in that position might not want to have the bother of an adoption, without thereby meaning that his widow should not adopt after his death. The main testimony in this case was that one Yekobashet asked the deceased whether he wanted to adopt and he replied he did not ; and as I have already said I do not think the finding of the lower Court can be taken beyond that. No doubt in Bayabai v. Bala Venkatesh Ramakant (1866) 7 B.H.C. 1 Westropp C.J. did hold that a refusal by a deceased to adopt in somewhat similar circumstances, viz., his saying, 'I do not wish to adopt ; I have a wife' and so on, would prevent his widow from subsequently adopting. I refer particularly to the remarks at pages iii, iv, v, as also at page xx. But it is to be remarked that at the last named page, Westropp C.J. says:-'I am clearly of opinion that in this case the language of the husband has been such as to render 'it impossible to imply any authority in his wife, or any other person, to adopt,' which supports the contention of Mr. Abhyankar for the respondent that Westropp C.J. was mainly looking at the case from the point of view whether there was an express authority from the husband to adopt, rather than whether his conduct amounted to an implied prohibition. However that maybe, it is to be noted that in that particular case the two other Judges are reported to have differed from the view taken by Westropp C.J. Tucker J. said that he was inclined to think that the widow had a right to adopt unless her husband expressly prohibited her from adopting, and that a mere refusal by him would not be sufficient ; and Warden J. concurred in the observations of Tucker J., so that in any case this was not a decision by this High Court that a mere refusal to adopt does prohibit the widow of the deceased from herself adopting. The case of Bayabai v. Bala has also been commented upon in Yadao v. Namdeo. (1921) L.R. 48 IndAp 513 Those remarks, as I read them, do not in any way affect the law laid down by this Court that the conduct of a deceased may impliedly prohibit his widow from adopting. But their Lordships point out that really the decision in Bayabai's case went entirely upon another point, viz., that the widow had been cajoled into making the alleged adoption. Therefore, there Is nothing in the decided cases, which, in my opinion, binds us to hold that this mere refusal was tantamount to an implied prohibition to the deceased's widows against any adoption. The view taken by the District Judge seems to me, therefore, to be quite correct. I would dismiss the appeal with costs.
2. We add, in view of what the appellant's pleader says, that the direction of the lower Court about the Subordinate Judge determining what is a proper and sufficient maintenance for the defendant &c.;, will cover the provision of a suitable residence for her, or if such a residence is not provided for, the cost of her residence is to he taken into consideration in the maintenance awarded. No further orders of this Court on this point are necessary.
3. I only desire to add that in this case the finding of the lower appellate Court amounts to this, that Ramrao refused to make any adoption and that there was no implied or express prohibition to adopt. The learned pleader for the appellant relied on the case of Bayabai v. Bala Venkatesh Ramakant. (1866) 7 B.H.C. 1That case has been noticed by the Privy Council in Yadao v. Namdeo (1921) L.R. 48 IndAp 513 and their Lordships have decided that that case rested upon the ground that the widow was cajoled into making the adoption. The unanimous opinion of all the Judges which was the basis of the final decision rested upon the ground that the widow had been cajoled into making the alleged adoption by being kept in ignorance of her righs and of the effect of an adoption. Tucker and Warden JJ. are reported to have expressly dissented from the view of Westropp C.J. on the other points in the case and were inclined to think that the widow of a separated Hindu had a right to adopt without any authority from her husband, and she had that right unless her husband expressly prohibited her from adopting and that a more refusal by him to adopt would not be sufficient. In the Full Bench case of Ishvar Dadu v. Gajabai (1925) 28 Bom. L.R. 782 Madgavkar J. has expressed the opinion that in Yadao v. Namdeo their Lordships of the Privy Council approve of the view in Rakhmabai v. Radhabai (1868) 5 B.H.C.R. 181 and disapprove of the remarks of Westropp C.J. in Bayabai v. Bala that refusal to adopt by the husband in his life-time is of itself tantamount to a prohibition and at p. 835 deduces the only principle from Yadao v. Namdeo as follows :-
In a family which is undivided at the time of her husband's death but which is subsequently separated in status, even though the property is not actually partitioned, a Hindu widow in the Maratha country can, after the separation in status and when the property vests in her and her co-widow, adopt without the consent of the collaterals, so long as there is no prohibition, express or implied, by the deceased husband to that particular adoption. Absence of express authority, or refusal to adopt in his life-time, is not of itself a prohibition in a Maratha country.
4. In the case of Rakhmabai v. Radhabhai, which has been approved by their Lordships of the Privy Council in Yadao v. Namdeo, it is laid down (p. 191):-
Upon the review which we have made of the authorities applicable in this part of India, we are of opinion that in the Maratha country, wherein the property in question in this suit is situate, a Hindu widow may, without the permission of her husband, and without the consent of his kindred, adopt a son to him, if the act is done by her in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive.
5. In Ramchandra v. Mulji Nanabhai I.L.R. (1896) 22 Bom. 558 it was held by a Full Bench that in the Bombay Presidency a widow having the power to adopt, and a religious benefit being caused to her deceased husband by the adoption, any discussion of her motives in making the adoption is irrelevant. It follows that the widow of a separated Hindu in the Bombay Presidency has the right to adopt in the absence of an express or implied prohibition by the deceased husband. The question whether the right of a widow to adopt as recognized in this Presidency is an inherent right or a delegated one has not been finally decided. In Ishvar Dadu v. Gajabai at p. 817 Shah J. is definitely of the opinion that the right of the widow to adopt as recognized in this Presidency is not inherent but based upon the implied consent of her husband and that it is difficult to reconcile the theory of the inherent right of the widow in this Presidency to adopt with the basic proposition relating to the law of adoption. On the other hand it is argued by Mr. Abhyankar for the respondents that in the case of Lakshmibai v. Sarasvatibai I.L.R. (1899) 23 Bom. 789 cited apparently with approval by their Lordships of the Privy Council in Yadao v. Namdeo, Sir Lawrence Jenkins was inclined to take the view that in this Presidency the widow's right is inherent and not merely delegated. It may bo contended that it is somewhat difficult to reconcile the right conceded to the mother to adopt (as in the case of Venkappa Bapu v. Jivaji Krishna I.L.R. (1900) 25 Bom. 306 or the right conceded to the grand-mother to adopt (as in the case of Narhar v. Balvant : AIR1924Bom437 with the theory of the widow's right to adopt being solely based on the implied consent of the husband. Vyahavara Mayukha, Ch. IV, Section V, pl. 16 to 18 (Stokes' Hindu Law Books, pp. 63 and 64) may also be referred to in this connection. It is not necessary to pursue the question further in this case. The solution of the difficulty as suggested by Madgavkar J. in Ishvar Dadu v. Gajabai at p. 834 of 28 Bom. L.R. may be accepted :-
As between express authority at one end and express prohibition at the other is the large space of implied authority and implied prohibition. The dividing line between the last two categories cannot be laid down by the Courts. That must be a question on the facts in each case and does not depend on the words 'with his authority' or 'in the absence of the prohibition'.
6. Applying this test to the present case it appears that there is a concurrent finding of both the lower Courts that there was no express or implied prohibition by the husband. There is evidence in the case to show that Ramrao stated that after his death the property should go to his widow and to his daughter. But that evidence has not been believed by the lower appellate Court. If that evidence had been believed, it might have amounted to an implied prohibition according to the ruling in Malgauda Paragauda v. Babaji Dattu I.L.R. (1912) 37 Bom. 107. The lower appellate Court has not noticed the evidence of witness (Exhibit 40) who says that he suggested that a daughter could not be the heir to the watan and that Ramrao said that in that case he ought to have an adopted son. There is conflict of evidence in the case as to whether there was an implied or express prohibition to adopt, but having regard to the finding of both the lower Courts, viz., that there was neither an implied nor express prohibition to adopt, the mere fact that Ramrao refused to take a son in adoption at the time of his death is not, in my opinion, sufficient to deprive the widow of the right to take a boy in adoption.