1. The question of law argued in this second appeal is whether the adoption of Babu (defendant No. 11) by Tanu (defendant No. 2) is valid, according to Hindu law.
2. The facts relating to this point are briefly these: One Balaram Gujar had three illegitimate sons, Pandu, Eaoji and Krishna. We are not concerned with Raoji at all. Krishna left a son named Dnyanu. He is found to have been adopted by Pandu in 1907. Pandu had a son Bala, who died in 1903 leaving two widows named Banu and Tanu. It appears from the recitals in the document of authority passed by Pandu that Tanu had au infant son who died some time before 1910. Bala died in union with his father. The infant son does not appear to have attained the age of ceremonial competence. In 1910 Pandu authorised Tanu to make an adoption. She adopted Babu in 1911. Panda died in 1913. Dnyanu, the adopted son of Pandu, filed the present suit claiming the property of Pandu to the exclusion of defendant 11.
3. The question as to the validity of the adoption of defendant 11 was decided by the trial Court in favour of the plaintiff on the ground that Babu, who was a legitimate son of his natural father, could not be validly adopted as Pandu was an illegitimate son of his father and as there would be ' no inter-marriage and inter-dining between legitimately born Mahrathas and bastard Mahrathas'. In appeal the First Class Subordinate Judge with Appellate Powers did not accept the ground taken up by the trial Court, and held the adoption to be valid.
4. In the appeal before us it is contended that the adoption is invalid as Banu, the senior widow of Bala, had the preferential right to adopt, and that the consent given by the father-in-law to Tanu, the junior widow, was neither sufficient nor valid under the circumstance. In support of the adoption it is urged that the exception in favour of the power of the widowed daughter-in-law to adopt with the consent of her father-in-law is recognized in this Presidency, and that the ordinary rule of the senior widow having a preferential right to adopt has no application to the present case.
5. It is clear that if Bala, the predeceased son, had been a separated member of the family, there could be no doubt as to the right of Tanu to adopt even without the consent of her father-in-law on the footing of her having an infant son. After the death of her infant son she would take the property as the mother and heir of her infant son, and she would be entitled to make an adoption (see Gavdappa v. Girimallappa ILR (1894) 19 Bom. 331 and Verabhai Ajubhai v. Bai Hiraba .
6. In the present case, however, the predeceased son died in union with his father. Even in such a case it has been held that the widowed daughter-in-law could adopt with the consent of the father-in-law. (See Vithoba v. Bapu ILR (1890) 15 Bom. 110 The observations of Ranade J. in Oopal v. Vishnu ILR (1898) 23 Bom. 250 support this view.
7. It is urged, however, that the father-in-law cannot give his consent in derogation of the preferential right of the senior widow to adopt. The preferential right of the senior widow exists when the widows inherit the property of their husband, that is when the husband is a separated member of the family; and even then it is subject to any authority given by the husband to the junior widow to adopt or any express or implied prohibition by the husband against the senior widow. This is clear from the observations in Rakhmabai v. Radhabai (1868) 5 B.H.C.R 181. But no authority is cited in support of the contention that in the case of an undivided family where the father-in-law's consent is necessary to validate an adoption by a widowed daughter-in-law, the consent ought to be given to the senior daughter-in-law. The principle underlying the recognition of the preferential right of the senior widow to adopt, in my opinion, has no application to a case where the adoption can be justified only by the consent of the father-in-law. The preferential right of the senior widow does not exist, apart from the will of the father-in-law. The doctrine of the preferential right of the senior widow to adopt has not been extended to a case where the husband dies in union with his father, and where the widow can adopt, if at all, with the consent of her father-in-law; and I see no justification in Hindu law for such an extension.
8. The case of Rajah Venkatappa Nayanim, Bahadiw v. Renga Rao ILR (1915) Mad. 772, relied upon by Mr. Patwardhan, has no application to the present case. It has been held in this case that an adoption by a junior widow without the consent of the senior widow is not valid even though it purports to be made with the consent of the Sapindas. In this Presidency the exception recognised in favour of the validity of an adoption made by the daughter-in-law with the consent of the father-in law does not stand on the same footing as an adoption made by a widow with the consent of the Sapindas in Madras. This point is examined in Vithoba v. Bapu. The Madras case to my mind is clearly distinguishable, having regard to the different views that prevail in Madras and Bombay as to the basis of the widow's power to adopt after her husband's death. Though there may be apparently something common between the consent of the kinsmen which is required even when the husband is separated in interest from them, and the consent of the father-in-law required in this Presidency when the predeceased son dies in union with his father to validate an adoption by the widowed daughter-in-law, I do not think that the latter is subject to the same limitation as the former as regards the preferential right of the senior widow to adopt.
9. It is further urged that the consent of Pandu alone is not sufficient as he had already adopted the present plaintiff as his son, and as the plaintiff had a vested interest in the estate as a coparcener. I do not think that the consent of the plaintiff was necessary to validate the adoption. The consent of the father-in-law is recognized as sufficient on account of the position which he occupies as the head of the family. It makes no difference whether he has other sons or not, and whether they consent or not. His consent has a certain legal effect on the adoption and that is independent of the existence and consent of the other coparceners. That is the ratio decidendi in Vithoba v. Bapu.
10. Lastly, it remains to consider whether the fact that Tadu had ail infant son put an end to her power to adopt with the consent of her father-in-law. The infant son does not appear to have attained the age of ceremonial competence; and I do not think that the fact of her having an infant son, who died prior to the adoption, could put an end to her power to adopt with the consent of her father-in- law.
11. It is not necessary to consider in this case whether the adoption would be valid if the infant son had attained ceremonial competence: and I desire not to be understood as expressing any opinion on the question. I desire to add that the fact of Tauu having an infant on does not appear to have been relied upon by either side in the lower Courts: and there is no finding this point. It is recited as a fact in the deed executed by Pandu. Even if Tanu had no infant son I think that the adoption of defendant 11 by her with the consent of her father-in-law would be valid.
12. No question is raised in this litigation as to the validity of the plaintiff's adoption by Pandu on the footing of Tanu having an infant son at the date of the adoption.
13. I would, therefore, confirm the decree of the lower appellate Court and dismiss the appeal with costs.
14. I concur.