1. The issue involved in this appeal is as to the validity of the adoption of the appellant Chanbasappa, defendant No. 1, by a Hindu widow who was defendant No. 2.
2. The material facts bearing on that issue are these. One Rachappa possessed considerable property some of which was property assigned as remuneration for the officiating watandar in the watan known as the pyati shetti watan of Dharwar. Rachappa at the time of his death in 1900 was the officiating watandar. He left behind him no issue. His widow Irawwa, defendant No. 2, according to the rules of devolution, succeeded to the watan. In 1904, she adopted one Channappa who did not survive long after the adoption and died in 1905 before his marriage. The successor of the deceased Channappa in respect to the watan property was his collateral Gurushiddappa shown in the genealogy given in the lower Court's judgment. Gurushiddappa gave his son San-Shivappa in adoption to Irawwa in 1906. San-Shivappa assumed office as watandar and was in possession of all the watan estate till his death in February, 1928. His wife predeceased him and he left two daughters and no son.
3. On August 21, 1928, the said Irawwa adopted the appellant Chanbasappa for the third time to her husband Rachappa from a family unconnected with his branch or the branch of Gurushiddappa. That adoption has been challenged by Gurushiddappa's son, the plaintiff Madivalappa.
4. The factum of adoption was questioned by the plaintiff who also- urged that Irawwa's power of adoption was extinguished first on the death of Channappa in 1905 inasmuch as the estate had vested in Gurushiddappa and again upon the death of the second adopted son San-Shivappa inasmuch as he had then attained full age and full legal capacity to continue his line and that the appellant's adoption could not divest the estate which had vested in San-Shivappa's two daughters as his nearest heirs. The plaintiff also contended that San-Shivappa's possession of the watan property was on behalf of the joint family and that the plaintiff was, therefore, entitled to succeed to it. The plaintiff, therefore, maintained that the appellant Chanbasappa had no right over the property left by San-Shivappa, that his recognition as the watandar of the pyati shetti watan by Government was illegal, that the proper person to hold the watan property according to the rule of succession was the plaintiff, and that consequently the possession of the property now in the possession of the adoptive mother and the adopted son Chanbasappa should be handed over to him.
5. The learned trial Judge has held that although San-Shivappa was formally and duly adopted, he could not legally inherit the watan property vested in Gurushiddappa, his father, notwithstanding the latter's consent to the adoption, but that he being in possession of the watan estate since his adoption in 1906 had perfected his right to the property as the adoptive son of Rachappa by adverse possession extinguishing the claims of Gurushiddappa and other members of the latter's family. With regard to the question of the validity of the Chan- appellant's adoption, the learned Judge held that although he was duly adopted. according to the ceremonies required by law by Irawwa, who had also passed a deed of adoption in his favour, the adoption was not legal and valid inas- much as Irawwa's power of adoption came to an end in view of the fact that San-Shivappa died leaving two daughters who were entitled to inherit his Estate. Accordingly the plaintiffs prayer for a declaration that the appellant's adoption was unauthorized and illegal was granted, the lower Court also holding that defendant No. 1 had acquired no right or interest in any of the properties in dispute.
6. It has been conceded in argument that if San-Shivappa at the time of his. death had perfected his title to the estate as the adopted son of Rachappa independently of his brother the plaintiff and if Rachappa's widow Irawwa could validly adopt the appellant upon the death of San-Shivappa, the plaintiff's claim could not be sustained.
7. With regard to the question of the nature of San-Shivappa's possession of the property, there is no doubt whatsoever that he was in possession in his own right as the adopted son of Rachappa. The plaintiff himself has. admitted the fact that San-Shivappa consistently described himself as the adopted son of Rachappa, subscribed his signatures to official documents in that manner and was recognized by his family members including the plaintiff as the adopted son of Rachappa. His name was entered in the watan register and he officiated as the shetti of the place. The suggestion that probably he represented his brothers in the natural family is unreasonable. All that the plaintiff has succeeded in proving is that he had acted as San-Shivappa's deputy for some time in 1913 and that San-Shivappa had after the adoption preferred to live with Gurushiddappa's family including his brother. The utmost that could be urged upon that circumstance is that perhaps the plaintiff's family derived some benefit from the profits of the watan estate which were received by San-Shivappa; but that would not alter the character of San-Shivappa's possession of the watan property in his capacity as watandar which capacity was derived from his adoption by Irawwa. I think the conclusion of the learned trial Judge that San-Shivappa's possession was. adverse since 1906 and was sufficient to extinguish the title of Gurushiddappa and his heirs must be accepted.
8. The principal argument advanced at the bar was that according to the principles of Hindu law when a son dies leaving female heirs in the direct line in whom the inheritance vests the mother's power of adoption comes to an end. Now as a general rule the power to adopt by a Hindu widow continues-during her lifetime provided her husband dies sonless. In cases where the husband has left a son if that son dies without leaving a wife or a son or grandson, then his widow can by adopting a son continue the line. The leading authority on the point is Amarendra Mmsingh v. Sanction Singh . In that case a Hindu was survived by an infant son and by a widow who was; authorized to adopt in the event of the son dying. The son died unmarried at the age of twenty years. Thereupon the widowed mother made an adoption. By a custom of the family females were excluded from the inheritance, Chan-and the estate, therefore, had vested in a distant agnate. The basis upon which the claim was laid in the plaint was, firstly, that when once the estate had vested in an heir of the last male holder other than the adopting widow, the power of adoption was at an end; and, in the second place, that a where the husband from whom the power to adopt was derived left a son to succeed him, and that son attained full legal capacity to continue the line, the power of his mother was equally at an end, and that this would be the case whether the family was separate or joint. The first line of reasoning which approached the question from the point of view of rights in property and the second from the ceremonial point of view were considered by their Lordships of the Judicial Committee, and it was held that as the natural son had left no son to continue the line nor a widow to provide for its continuance by adoption, the adoption by the mother was valid, although the estate was not vested in her and although the son had attained majority. The important considerations which weighed with their Lordships have been thus expressed (p. 248) :-
In their Lordships' opinion, it is clear that 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 and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the father's duty has been performed and the means provided by him for its fulfilment spent : the ' debt' he owed is discharged, and it is upon the new generation that the duty is now cast and the burden of the ' debt' is now laid.
Upon that view the doctrine of devolution of property and divesting of estate was altogether a secondary consideration.
9. The learned trial Judge thought that as the last male holder had left two daughters as his heirs, the right of adoption was exhausted. The discovery or existence of heirs could never be regarded as material in the consideration of the widow's power to adopt, for in the absence of an ' aurasa' or natural born son it is always possible to find heirs to succeed unless there was an escheat to the Crown propter dejectum sanguinis. In view of the decision in Amatendrds case, the general proposition stated by the learned Judge below that when a son dies leaving heirs nearer than the widowed mother, the latter's power to adopt comes to an end at his death could no longer be supported. As to when that power comes to an end has been authoritatively settled in Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 : 4 Bom. L.R. 315..
Where a Hindu dies, leaving a widow and a son, and that son himself 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 afterwards be revived.
That rule was approved of in Madana Mohana v. Pumskothama .
10. The suggestion that the mother's power came to an end upon the attainment by San-Shivappa of ceremonial competence and full legal capacity is not based upon textual authority or principle. The former point was left open in Amarendra's case, but their Lordships held that there was no foundation for the contention that a mother's authority to adopt was extinguish-Changed by the mere fact that the son had attained majority or that at the date of adoption the estate had been vested in a third party. The full legal capacity of the son depriving a mother of her right implies the capacity to continue the line either by the birth of a natural son or by the adoption to him of a son by his own widow. The question is whether those conditions existed here? (See Madana Mohana v. Pumshothama.)
11. There is no good reason to distinguish Amarendra's case from the present one on principle. If the purpose of affiliation of a son is founded upon religious and ceremonial doctrine, Irawwa had the legal power to adopt. Some decisions of our Courts create a doubt as regards the capacity of the widow to divest upon adoption an estate except her own. But since the decision in Amarendra's case the doctrine of divesting does not come into operation in the consideration of the capacity of the widow to adopt. On general principles, therefore, the existence of daughters will be no obstacle to Irawwa's right to adopt.
12. But it has been urged on behalf of the plaintiff, and the argument is interesting on account of its novelty, that just as a son could continue the line so a daughter could provide for the continuance of that line and could through her son minister to the religious requirements of the deceased. One of the most essential conditions of a person's capacity to adopt is that he should be sonless. That basic necessity of adoption has been laid down by writers such as Atri and Manu. 'By a man destitute of a son only must a substitute for the same always be adopted.' (Dat. Mim. 1, 3; Dat. Chand. 1, 3). The expression 'destitute of a son' (aputra) implies a person having no male issue. A text of Qankha expresses thus : 'One to whom no son has been born or whose son has died, having fasted for a son, etc.' (See Dat. Mim. 1, 4). The term 'aputra' (sonless) has never been understood to imply a person to whom no son or daughter is born. That would mean that the birth of a daughter is sufficient to remove ' the curse of destitution.' The term ' son' in the said verse includes a son's son and grandson. Perhaps the foundation of the argument is the indiscriminate use of the word 'grandson' which might imply also a daughter's son. According to the text of Manu (see Dat. Mim. 1, 9) 'A son of any description must be anxiously adopted by one who has none : for the sake of the funeral cake, water, and solemn rites; and for the celebrity of his name. He who has no son may appoint his daughter in this manner to raise up a son for him.' That passage obviously indicates the object of appointment and nowhere suggests that the existence of a daughter or daughter's son removes the need of a sonless person. There is no text to support the view that the reason for the affiliation of a son ceases by the birth of a daughter or a daughter's son. If the existence of a person capable of performing the exequial rites debarred a person from adopting, the whole basic theory of adoption of a son would be destroyed, for someone could always be found among sagotrajas or bandhus to perform the ceremony. No person has been prevented from adopting a son owing to the existence of a daughter to succeed him as heir, nor could a widow be prevented from adopting on similar grounds. There is no suggestion in any text that a daughter is a good substitute for a son. Ac-cording to Manu's text 'By a son, a man obtains victory over all people; by a son's son he enjoys immortality and afterwards by the son of a grand-son he reaches the solar abode' (see Manu, c. IX, v. 137; Dat. Mim. Sections I, 4 v. 13). Obviously the merit lies in having a son either natural or adopted, and a daughter or daughter's son, who might under certain circumstances be competent to perform the religious ceremonies necessary for the salvation of the soul of the deceased, will not satisfy the thirst of ' a person destitute of a son.' Therefore it seems to me that the adoption of the appellant by Irawwa cannot be questioned.
13. I hold, therefore, that Irawwa was competent to adopt and the appellant's adoption having taken place with due form and ceremony is valid in law. Accordingly I would allow the appeal, reverse the decree of the lower Court and dismiss the plaintiff's suit with costs throughout.
14. On the question of adverse possession I have nothing to add to the observations of my learned brother. That question, in my opinion, has little but academic interest seeing that Government have decided to apply the provisions of the Watan Act and consequently the watan property has been held to be assigned for the remuneration of the officiator. San-Shivappa officiated as shetti throughout his life, and must, therefore, be held to have been entitled to the property.
15. The reasons given by the learned trial Judge for holding that the adoption of defendant No. 1 by defendant No. 2 was invalid are, (1) that defendant No. 2's power to adopt came to an end on the death of the first adopted son Channappa in 1905, and (2) that San-Shivappa, the second adopted son, left two daughters surviving him, It is difficult to reconcile the finding that defendant No. 2's power to adopt came to an end on the death of Channappa with the finding twice repeated elsewhere in the judgment that the subsequent adoption of San-Shivappa was legal and valid. The learned Judge attempted to make a distinction between the validity of the adoption of San-Shivappa considered under the general principles of Hindu law on the one hand and considered with reference to the watan properties on the other. But the adoption must be either valid or invalid. There might be a question as to its effect on the transfer of property. That is a secondary and more or less irrelevant matter. The validity of an adoption by a widow according to the law as now expounded by the Privy Council depends on whether the widow's power to adopt has been extinguished or not in the manner explained in Amarendra's case. The judgment in this case was delivered before Amarendra's case was decided. It is conceded in the argument before us that defendant No. 2's power to adopt was not extinguished on the death of Channappa and that the adoption of San-Shivappa was valid.
16. The other reason given by the learned trial Judge for holding the adoption of defendant No. 1 invalid is not quite so easily disposed of because it is not covered by direct authority and because it is supported by certain passages in Sir Dinshah Mulla's Principles of Hindu Law, 8th edn., e.g. at
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 case where her husband has left a son, if the son dies leaving her (his mother) as his nearest heir, i.e., if the son dies without leaving his wife, children or any other nearer heir than the widow (his mother) 'desiring to adopt.
And then again :
If the son dies leaving an heir nearer than the widow desiring to adopt, such as a wife, a child, or, he being her step son, his own mother, the widow's power to adopt comes to an end at his death, and she cannot thereafter exercise it, though she may have been expressly authorized by her husband to adopt in the event of the son's death. The reason is that the estate then vests in an heir of the deceased son and the window cannot adopt to her husband so as to divest the estate taken by that heir.
But if, as is apparently the case, the learned commentator means to include female children under the term 'children' and 'child,' his view is not in my opinion in accordance with the law as now settled. My learned brother has cited Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 : S.C. 4 Bom. L.R. 315. which was approved in Madana Mohana v. Purushothama . The law was similarly laid down in Tripuramba v. Venkataratnam I.L.R. (1922) Mad. 423 where Wallace J. said (p. 433) :
The purpose of adoption is to perpetuate the line, and if the only son dies without leaving any one to perpetuate the line, there seems no good reason for restricting the power of his mother to perpetuate it in the only way she can by adopting a son to her own husband.
In Amarendra Mansingh v. Sanatcm Singh their Lordships said that they found themselves in complete agreement with this proposition. In the same case at p. 256 they summarized their conclusions as follows :-
It being clear upon the decisions above referred to that interposition of a grandson, or the son's widow, brings the mother's power of adoption to an end, but that the mere birth of a son does not da so, and that this is not based upon a question of vesting or divesting of property, their Lordships think 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 die himself son-less 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.
17. The paramount consideration is, therefore, whether the continuance of the line has been provided for. If it has, the widow mother in a case like this has no power to adopt to her husband. If it has not, she has that power. Now a daughter cannot continue the line of her father, at least in these days when the doctrine of the appointed daughter is obsolete-see Sir Dinshah Mulla's Principles of Hindu Law, 8th edn., p. 40. The daughter's son has a peculiar and privileged position in the matter of inheritance and in respect of the performance of funeral oblations. But he does not belong to the same family. He is not in the line. When the word 'son' is used in the authorities to which I have referred, there can be no doubt, I think, that 'son' is intended and not 'child.' The existence of a granddaughter no more deprives a man's widow of the power to adopt than the existence of a daughter does.
18. I agree, therefore, that the adoption of defendant No. 1 was valid, that the plaintiff is not entitled to the declaration granted to him and that his suit should be dismissed in its entirety.