1. [After setting out facts as above the judgment proceeded]: The first question arising in the case is whether the oral wills of Chennappa and Eudrappa are proved, According to the decision of the Privy Council in Venkat Rao v. Namdeo (1931) L.R. 58 IndAp 362 the onus would be on the defendants to establish the oral wills of Chennappa and Rudrappa and they would have to discharge it as if they were propounding a will for probate. Such an onus is always a heavy one as observed by their Lordships of the Privy Council in Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee (1867) 12 M.I.A. 1
But if any party is bound to strictnes of pleading, it is he who seta up a nuncupative Will, He who rests his title on so uncertain a foundation as the spoken words of a man, since deceased, is bound to allege, as well as to prove, with the utmost precision, the words on which he relies, with every circumstance of time and place.
2. [At this point the evidence as to the oral wills by Chennappa and Rudrappa was discussed and the conclusion reached was:] The evidence, therefore, on the point of Chennappa's will is reliable as it is highly probable that Chennappa should make the oral will in the manner deposed to by the witnesses, and the likelihood of the presence of the witnesses at Chennappa's death is undoubtedly beyond question...The story of the oral wills of Chennappa and Rudrappa is, in my opinion, fully established on the evidence... Though the onus is very heavy on the defendants to establish the oral wills, I think on the whole that onus has been discharged by the defendants....
3. The next question is as to the effect of the oral wills of Chennappa and Rudrappa. It is contended on behalf of defendant No. 3 that the oral will amounted to a separation of the interest of Chennappa according to the decisions of the Privy Council in Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 : 18 Bom. L.R. 621 Kawal Nain v. Prabhu Lal and Ramalinga Annavi v. Narayana Annavi on the ground that there was an unequivocal intention to separate and that the separation was established by reason of the conduct of Chennappa. In the judgment of the lower Court, paragraph 7, it is stated that it is not disputed that there was no division of the property between Chennappa and Rudrappa. The learned Subordinate Judge held in paragraph 29 that the instructions left by Chennappa about the giving of the share and making the adoption do not amount to any intention of Chennappa that he should from that moment be separate from Rudrappa. It appears to me, after making due allowance for exaggeration in the evidence of witnesses for defendant No. 2 who have given different and not quite consistent versions of the oral wills, that the instructions given by Chennappa amount to this that he directed Rudrappa to give a share to his wife Rudrava and authorised Rudrava to adopt. If Chennappa had said that he intended to separate from his brother Rudrappa and gave his eight annas share to his widow and also permission to adopt, there would have been an unequivocal and unambiguous declaration of his intention to separate. But he asked his brother to give a share to his widow and gave permission to his widow to adopt. This declaration indicates that he intended his brother Rudrappa to get the property by survivorship and directed him to give eight annas share to his widow and gave authority to his widow Rudrava to adopt. I have come to the conclusion that though Rudrava and Rudrappa were not on good terms, Rudrappa was on the best of terms with his brother Chennappa and was anxious to loyally carry out Chennappa's directions, It appears that an amount of Rs. 159-8-0 was due to the father of Chennappa and Rudrappa in respect of the contract of forest coups in the year 1903. Exhibit 179 shows that on March 2, 1914, two months after Chennappa's death and a month before Rudrappa's death, Rudrappa claimed the amount on the ground that he was entitled to it by survivorship. If Chennappa had made an unequivocal declaration that he was separate from his brother and if Rudrappa was anxious to give effect to Chennappas oral directions, he would not have claimed the amount exclusively for himself but would have divided the amount between himself and the widows of Chennappa, who claimed the whole amount by Exhibit 180, dated March 29, 1914, on the ground that they wore living separate from Rudrappa, but did not set up the separation effected by the oral will of Chennappa and claim half the amount. Chennappa did not intend to effect a present severance of interest with the intention of separate enjoyment, but his oral will amounted to a direction to Rudrava to adopt and a direction to Rudrappa to give a share to his widows. At least the intention to separate is not clearly and unequivocally expressed. If Ohennappa had expressed an unequivocal and clear intention to separate, the consent of Rudrappa was not necessary. Exhibit 214, a letter by Rudrappa dated February 3, 1914, shows that there was no amicable settlement with Rudrava, who was told by Rudrappa to go to Court on February 1, 1914, and indicates that Rudrappa did not think that Rudrava was entitled to a share by reason of Chennappa's declaration of intention to separate, but her right to a share depended on his own volition to give her a share according to his brother's directions. It appears that Rudrappa on his deathbed carried out his brother's directions and gave eight annas share by bequest to Rudrava and eight annas to his own widow Kalyanava. Chennappa did not express an unequivocal and clear intention to separate from Rudrappa, According to the decision of the Privy Council in Bal Krishna v. Ram Krishna a separation may be effected by a clear and unequivocal intimation on the part of one member of a joint Hindu family to his co-sharers of his desire to sever himself from the joint family.' And after referring to the cases in Suraj Narain v. Ikbal Narain (1912) L.R. 40 IndAp 40 : 15 Bom. L.R. 450 and Oirja Bai v. Sadaahiv Dhundiraj, reference is made to the dictum of Lord Haldane in Kawal Nain v. Prabhu Lal that (p. 161) ' the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate.' It does not appear from the evidence and the statement made by Chennappa that there was an unequivocal intention on his part to separate or an assertion of his right to separate. According to Vyavahara Mayukha (ch. iv, Section 3, pl. 2, Mandlik's Translation, p. 38) ' even when there is a total absence of common property, a partition is effected by the mere declara 0tion 'I am separate from thee': for partition is but a particular condition of the mind, and this declaration is indicative of the earne.' It does not appear from the evidence on the record that Chennappa intended to declare that he was separate. He asked Rudrappa to give a share to Kudrava and asked Kudrava to adopt. In pursuance of those instructions Rudrappa made an oral will giving a share of eight annas to Kudrava and the remaining moiety to his widow. The widows, however, exceeded the intention of Rudrappa by effecting a partition, Exhibit 78, by dividing the property not only between Rudrava and Kalyanava but also between the two widows of Chennappa and the widow of Rudrappa, and gave full ownership to the two widows of Chennappa to the extent of four annas each instead of annas eight to Rudrava, and gave an absolute estate of eight annas belonging to Rudrappa to Kalyanava and agreed that the three widows should adopt. The effect, therefore, of the oral dispositions of Chennappa and Rudrappa, in my opinion, is that there was an oral will by Chennappa directing Rudrappa to give a share to his .widow and also authorising Rudrava to adopt. The instructions do not, in my opinion, effect a severance of the joint property. Rudrappa gave effect to his brother's instructions by giving a share of eight annas to Rudrava and allowing her to adopt.
4. The next question argued before us is whether the adoption of defendant No. 3 by defendant No. 2 is valid. If the oral will of Chennappa were considered to have effected a severance of interest between Chennappa and Rudrappa on the day he made the oral disposition, Rudrava could make a valid adoption and there would be no objection to a widow of a separated member of a joint family making an adoption, and the adoption of defendant No. 3 would be valid. But I find difficulty in holding, as I have already indicated, that Chennappa's instructions amount to a separation of interest.
5. The question is whether the adoption of defendant No. 3 would be valid after the death of Rudrappa. It is contended on behalf of defendant No. 3 that by the adoption defendant No. 8 did not divest the interest of Kalyanava, and therefore the adoption is not invalid according to the decision in Chandra v. Gogarabai I.L.R. (1890) Bom. 463 and that, according to the decision of the Calcutta High Court in Kumud Bandhu Saha v. Ravnesh Chandra Saha I.L.R. (1919) Cal. 749 the adoption of defendant No. 3 by Rudrava would be valid. It was held in the latter case that where a person made a bequest of four annas to his widow and twelve annas to his son, the widow could make an adoption even after the son left a widow to succeed to him because the adoption by the widow would not divest the estate vested in the widow of the son as she herself got an interest in the property by bequest. The decision in Chandra v. Gojarahai proceeds on two grounds: (1) that the adoption made to Nana'a brother Bhau after the estate had vested in Nana'a widow would be invalid as the joint family pro-perty ceased on Nana's death; and (2) on the ground that the adoption made by a widow in a joint Hindu family would be invalid if it divested the estate of one on whom the inheritance devolved from a person other than her husband, and that the adoption by Bhau's widow would be invalid as it would divest the estate which had devolved on Nana's widow. In the full bench decision in the case of Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 : 4 Bom. L.R. 315 which related to a Hindu grandmother who succeeded as heir to her grandson who died unmarried, it was held that the power of the grandmother to make an adoption came to an end. It was observed in that case that according to Mussuraat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10M.I.A. 279 a widow's power to adopt is limited and that the power would be limited both where a widow had a written authority from her husband to adopt and also where, though she had no such authority, she adopted, as a widow can in the Bombay Presidency under the law giving her the power of adoption in the absence of express or implied prohibition from her husband. It was further observed at p, 532 as follows:-
Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural born or adopted eon 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.
The question, therefore, in such a case is whether, in the event of the last surviving owner of the property leaving a widow to continue the line by means of an adoption, the power of adoption of any other widow in the joint family would be extinguished and would never afterwards be revived. The full bench decision in Ramkrishna's case has been approved by the Privy Council in Madana Mohana v. Purushothama where it was held that an authority to adopt given by a Hindu governed by the Mitakahara to his widow cannot be exercised to make a second adoption when the son first adopted has died after attaining full legal. capacity to continue the line, either by the birth of a natural born son or by the adoption to him of a son by his own widow. The full bench decision in Bamkrishna's case was followed in Adivi Suryaprakam Bao v. Nidamarty Gangaraju I.L.R. (1909) Mad. 228 where it was held that a power given to a widow to adopt is absolutely at an end when once the estate has vested in the heir of her deceased son and is not revived even if she afterwards succeeds to the estate, and that in such a case the consent of the son's heir in whom the estate was vested will not validate the adoption, and the sama rule was held by Wallis J. to apply in the case of an adoption by a widow of a coparcener who has lost her right to adopt by reason of the estate having devolved on the widow of the last coparcener. In Pratapsing Shivsing v. Agarsingji Raisingji (1918) L.R. 46IndAp 97 : 21 Bom. L.R. 496 it was held that a Hindu widow can exercise a power to adopt which is vested in her so long as the power is not extinguished or exhausted, although her husband's estate is not vested in her. It would, therefore, appear that the trend of recent decisions is that the test as to the validity of an adoption is not merely whether the adoption does or does not divest the estate of any other person but also involves the question whether the power of adoption of the widow is merely suspended or is at an end and has become incapable of being revived.
6. The power given by Chennappa in this case to his widow Rudrava could be exercised during the lifetime of Rudrappa till the joint family was in existence, but it could not be exercised after Kudrappa left a widow to continue his line. This will be clear from the decisions in the cases of Chandra v. Gojarabai, Adivi Suryapralcasa Bao v. Nidamarty Gangaraju, and the case in 8hivba8ccppa v. Nilava I.L.R. (1922) Bom. 110 : 24 Bom. L.R. 1162 Having regard to the decisions to which I have referred I doubt whether the view taken by the Calcutta High Court in Kumud Bandhu Saha v. BameshChandra Saha is correct. The decision in Kumud Bandhu Saha's case can also be distinguished on the ground that according to the Bengal School Kailash's widow had no power to continue the line as Kailash had given no authority to adopt to his widow. But in the Bombay Presidency a widow has a right to adopt to her husband in the absence of express or implied prohibition. After Rudrappa's death, defendant No. 1 had the right to continue the line of Eudrappa. If the adoption of defendant No. 3 had been made byEudrappa during the lifetime of Rudrappa it would have been valid, but I think it is invalid when Rudrappa left a widow defendant No. 1 to continue his line by adoption. The fact that Rudrappa made a bequest dividing the property between his own widow Kalyanava and Rudrava, widow of Chennappa, would not make the adoption of defendant No. 3 valid. I think, therefore, that the adoption of defendant No. 3 is not valid as I have come to the conclusion that Chennappa's oral instructions do not effect a severance of estate from Rudrappa, and, secondly, because the authority given by Chennappa could only be exercised during the lifetime of Rudrappa and could not be exercised after Rudrappa left a widow to continue his line. Though Chennappa desired that his line should be continued by Rudrava after receiving a share by adopting a son to him, I think, having regard to the authorities to which I have referred, his intentions cannot be given effect to, and the adoption of defendant No. 8 must be held to be invalid.
7. The decision of the Privy Council in Yadao v. Namdeo (1921) L.R. 48 IndAp 513 : 24 Bom. L.R. 609 which appears to recognise the inherent right in the widow of a member of a Hindu joint family to adopt, was considered in the full bench decision in the case of Ishwar Dadu v. Gajahai I.L.R. (1925) Bom. 468 : 28 Bom. L.R. 782 and it was held that under Hindu law in the Bombay Presidency the widow of a deceased coparcener in a joint family has no inherent right to make a valid adoption without either the authority of her husband or the consent of the surviving coparceners of the husband, and that the decision in Ramji v. Ghamau I.L.R. 1879 Bom. 498 is not overruled by the decision in Yadao's case. The decision of the Privy Council in Yadao v. Namdeo was considered in Shivbasappa v. Nilava I.L.R. (1922) Bom. 110 : 24 Bom. L.R. 1162 as not overruling the current of the decisions of which Chandra v. Gojarabai is a type. The power given by Chennappa could have been exercised so long as the joint family continued till the death of Rudrappa, but since Rudrappa died leaving a widow to continue his line, the power of adoption of Rudrava came to an end, and, therefore, the adoption of defendant No. 3 is invalid on that ground.
8. The trial Judge held that the adoption of defendant No. 3 by defendant No. 2 is invalid On the ground that it was not made to the last male holder Rudrappa. The same contention is again urged before us on behalf of the plaintiff, and derives support from the decisions in the cases of Vasudeo v. Ramchandra I.L.R. (1896) Bom. 551 and Payapa v. Appanna I.L.R. (1898) Bom. 827 The decision of the Privy Council in Tadao v. Namdeo, which appears to recognize the inherent right of the widow in a joint Hindu family to adopt, was considered in the full bench decision in the case of Ishwar Dadu v. Gajabai. The decision of the full bench in Ishwar Dadu's case has been followed in subsequent cases of this Court: Ganesh v. Gurnath : (1926)28BOMLR1188 , Bala v. Akubai : (1926)28BOMLR1254 , Babanna v. Parava : (1926)28BOMLR1446 and Bhimabai v. Gwrunathgouda : AIR1928Bom367 There is a difference in the Bombay Presidency as to the power of adoption by a widow in a joint family and by a widow of a separated member or a person who is not a member of a joint family. The rule that an adoption can be made only to the last male holder does not apply to coparcenery property as a widow in a joint family can adopt with the authority of her husband till the joint family subsists and before the death of the last surviving coparcener leaving a widow to continue the line by adoption. In the case of a separated member, the rule that an adoption can be made to the last male holder is modified so as to allow adoption by a mother succeeding as heir to her eon who died without leaving any heir except herself (see Gavdappa v. Girimallappa I.L.R. (1894) Bom. 331 and Mallappa v. Hanmappa I.L.R. (1919) Bom. 297 : 22 Bom. L.R. 203 or an adoption by a grandmother where the estate has passed directly from her husband to her grandson and has devolved on her directly from the grandson without the intervention of any other heir: Narhar Govind v. Balwant Hari I.L.R. (1924) Bom. 659 : 26 Bom. L.R. 538 The rule can be said to have been applied even in cases where the adopting widow has got the estate vested in her by Inheritance as in the case of a grandmother when the estate has not gone directly from her husband to the grandson and come back directly to her (Ramhrishna v. Shamrao I.L.R. (1902) Bom. 626 : 4 Bom. L.R. 315 or a step mother (Basmngowda v. Rudrappa I.L.R. (1928) Bom. 393 : 30 Bom. L.R. 691 or a widow of a gotraja sapinda (Datto Govind v. Pandurang Vinayak I.L.R. (1908) Bom. 499 : 10 Bom. L.R. 692 but the adoption was held invalid on the ground that the power of adoption came to an end and became incapable of being revived. The question in each case, as I have already stated, is whether the power of adoption is in abeyance or merely suspended, or is at an end and has become incapable of being revived. It has been put in the same way by Beaumont C. J. in the case of Sangangauda v. Hanmantgauda (1931) 33 Bom. L.R. 1825
The question really has been whether the power should be treated as having been in abeyance while the estates were vested elsewhere than in the widow and as having revived on the estates descending upon the widow, or whether the power should be treated as having come to an end.
9. It was held in that case that where the power of adoption is in abeyance, the adoption can be validated by the consent of the party in whom the estate has vested according to the decision in Payappa's case, but when the power of adoption has come to an end, the adoption is invalid and falls within the principle of the decision in Ramkrishna v. Shamrao and cannot be validated by consent.
10. In the present case the power of adoption of defendant No. 2 on account of authority of her husband was in abeyance till the joint family was in existence and could have been exercised by her during the lifetime of Rudrappa, but it came to an end on the death of the last surviving coparcener leaving a widow to continue his line according to the decision in Chandra v. Gojarabai, Adivi Suryaprahasa Rao v. Nidamarty Gangaraju I.L.R. (1909) Mad. 228 and Shiv-basappa v. Nilava I.L.R. (1922) Bom. 110 : 24 Bom. L.R. 1162 The adoption of defendant No. 3 is, therefore, invalid.
11. The adoption of defendant No. 5 is invalid in any event, for there cannot be two adopted sons to the same person Chennappa, and an adoption made by a junior widow after the senior widow had made an adoption to Chennappa would be invalid.
12. The only remaining question is as to the nature of the estate taken by Rudrava and Kalyanava. The learned Subordinate Judge has reserved that question for decision in a suit, if any, brought by the plaintiff, the adopted son, after the death of Rudrava and Nagava, as he held that Rudrappa made an oral will binding upon the plaintiff, and that so long as Rudrava and Nagava were in existence plaintiff had no right to bring a suit to recover the property in possession of Rudrava and Nagava. I think according to the will of Chennappa he intended that an ab-solute share should be given by Rudrappa to his widow Rudrava and thereafter she should adopt a son to him, Rudrappa also made an oral will by which he gave eight annas share to Rudrava. The wishes of Chennappa and Rudrappa were exceeded by all the widows when they entered into a partition by which they gave not eight annas share to Rudrava and eight annas to Kalyanava but they proposed to divide eight annas between Rudrava and Nagava as absolute owners each with a four annas share, and allotted the other eight annas share to Kalyanava as full owner. It is difficult to hold that Rudrappa intended to give four annas to Nagava. It appears to be the intention of Chennappa and Rudrappa to give eight annas absolutely to Rudrava and the statement in the partition deed that the widows of Chennappa were to get the property as absolute owners supports the inference that Chennappa and Rudrappa intended that an absolute estate should be given to Rudrava. I think, having regard to the decisions of the Privy Council inRamachandra Rao v. Ramachandra Rao Shalig Ram v. Charanjit Lal : (1930)32BOMLR1578 and Jagmohan Singh v. Sri Nath : (1930)32BOMLR1609 the intention of Rudrappa was to give an absolute estate to Rudrava, It may be that after Rudrappa died all the widows came to an understanding that the eight annas share which was to be given to Rudrava should be divided between Rudrava and Nagava. That partition deed is, in my opinion, binding as between the parties to the deed, and though the partition deed in itself may not be binding upon the present plaintiff the oral will of Rudrappa made by the last surviving owner of a joint Hindu family would be binding upon the plaintiff as it was made by his father before his adoption by defendant No. 1. Rudrava takes absolute estate under the will of Rudrappa and Nagava takes absolute estate as regards her four annas share, in virtue of the partition deed.
13. I, therefore, agree with the findings of the lower Court on all points except that the estate which fell to the share of Rudrava in accordance with the will of Rudrappa as well as the estate taken by Nagava under the partition deed was an absolute estate.
14. On these grounds I would confirm the decree of the lower Court and dismiss the appeals with costs.
15. [His Lordship, after setting out the facts at length, went on :] The question arises whether in accordance with the principles laid down by their Lordships of the Privy Council in Baboo Beer Pertab Sahee v. Maharajah Rajender Pertab Sahee (1867) 12 M.I.A. 1 recently again referred to by their Lordships in Venlcat Rao v. Namdeo (1831) L.R. 68IndAp 362 the directions given by Chennappa on his death-bed can be held to be sufficiently clear and unambiguous, for being considered as a nuncupative will.
16. [After referring to the evidence his Lordship continued:] I must, nevertheless, observe that the question we have to consider is not of granting probate of a nuncupative will, but the question is rather whether the arrangements that were made in May 1914, under Exhibit 73, should be upset, on the ground that they were made on the supposition of there having been a nuncupative will, which did not exist...The present case is not one in which there has been delay on the part of a person who ought to have obtained probate. Here, omission to obtain probate, is not itself a fact throwing suspicion on the alleged will. ...It is not, as if the propounded of the will were doing at a late stage, what ought to have been undertaken long before. When a person is bound to take certainsteps e.g., to propound and prove a will-and he does not do so for a long time, it is natural that his delay and negligence should throw a shadow over his belated evidence. The case is different where no duty is cast on any one to bring the matters to the cognizance of the Court. The Court then considers the probability of the events alleged to have taken place without any feeling of suspicion.
17. [After examining the evidence his Lordship held that there was no intention of bringing about a severance of interests at any time between Chennappa andRudrappa : that no such severance took place in fact or in law: and that the latter willed that his own widow and his brother's widows should take the property in moieties. In the course of the examination of the evidence his Lordship observed :] But it is difficult to proceed on the basis that Rudrappa or Chennappa had a clear conception of the law as to partition by the expression of an unequivocal desire toseparate, when even the experienced bond-writer Fakirappa proceeded on such erroneous notions as the partition deed discloses. The law as it was then understood is well illustrated by Sakharam Mahadeo Dange v. Hari Krishna Dange I.L.R. (1881) Bom. 113 where a decree for partition in the Subordinate Judge's Court was not understood to effectuate a partition, since it was subject to appeal.
18. Still, to consider the question, I will adopt the words of the Mayukha quoted by my learned brother : ' Partition is a particular condition of the mind and the declaration is indication of the same.' (Ch. IV, Section 3, pl. 2, Mandlik, p. 38), These words contain a rule not different from that laid down in Bal Krishna v. Ram Krishna and Kawal Nain v. Prabhu Lal (1917) L.R. 44 IndAp 159 : 19 Bom. L.R. 612
19. [In coming to the conclusion that the widows took under the partition deed absolute estates as full owners and not mere life-estates as Hindu widows, his Lordship observed :] Under the Indian Succession Act, 1865, Section 82 (which in Act XXXIX of 1925, is re-enacted as Section 95), a bequestmust be interpreted as carrying the whole interest unless it appears that only a restricted interest is intended. Apart from that, it seems to me that Rudrappa's declaration makes it clear that he wished to give the widows absolute estates. This view is strengthened when the preceding declaration of Rhennappa is borne in mind, and it is remembered that Eudrappa expressly intended to carry out the desires of Chennappa. It is true that these declarations were to the effect that Rudrava as the elder widow of Chennappa, and Kalyanava as the widow of Eudrappa, should each take moieties of the estate,-whereas by the partition deed the moiety to be taken by Rudrava is equally divided between heraelf and her co-widow Nagava....
20. The only question that is left over is, whether the adoption of the third defendant by the second defendant was valid. If the two brothers Chennappa and Eudrappa had effected a severance of the estate of each from that of the other, no such question would have arisen. In the events, however, that have taken place, we have the widow of a predeceased coparcener ( the elder brother's widow) purporting to adopt, after the only other surviving coparcener (the younger brother) had died; and, consequently, after his estate had devolved upon the last coparcener's widow or, to be accurate, would have devolved but for his will. If the circumstances had been, as I have stated, un-complicated by the will of the younger brother and the partition deed, which itself provides for the adoption, I presume there would have been no difficulty in deciding the case. The events that have happened, however, place the widows of Chennappa (the predeceased elder brother) in the very situation in which they would have been had Chennappa separated his share in the joint family estate from Rudrappa's : as it is, the widows of the two brothers are each in possession of half the estate. Why, then, it is argued, should not the adoption stand on the same footing as though separation had taken place ?
21. It is necessary to go back to the principles on which the power of the widow to adopt (1) is placed under restriction as to the period during which it can be exercised,(2) is made subject to determination on the happening of certain events, and (3) is considered in some cases to have revived after having once become incapable of being exercised, or to come into operation after having been in abeyance during the existence of some obstacles.
22. On the whole subject the decision in Mussumat Bhoobun Moyee Dehia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279 is extremely important.
23. The facts there were, that the original owner of the properties was one Gour Kishore. He died in 1821, leaving a widow Chundrabullea Debia, and a son Bhowanee Kishore. The latter was four years old. Bhowanee Kishore in the natural course succeeded to his father. The son died in 1840, leaving a widow Bhoobun Moyee. The widow of the son and her mother-in-law, Chundrabullee, were at first friendly. They took in 1840 joint possession of the estate of Bhowanee Kishore. But in 1848, the two widows fell out; and Bhoobun Moyee, the daughter-in-law, set up a will and an authority to adopt: these were held to be forged. Ohundrabullee in her turn set up a power of adoption, said to be given to her on November 9, 1819, by Gour Kishore the original owner (to whom I shall refer as the father), Under this power she purported to adopt Ram Kishore as the son of Gour Kishore. It was held that this power to adopt was genuine. The question remained whether it could be brought into operation twenty-four years after it had been executed, after the donor of the power (viz., the father) had died, after his eon had succeeded to the estate, and had himself died leaving as his heir his own widow. Their Lordships were dealing with the law of Bengal under which ' a widow is heir of her husband dying without issue ; even though he has an undivided brother' : Mayne, Section 185.
24. The question is considered by Lord Kingsdown delivering the opinion of the Privy Council at pages 310, et seq. of the report.
25. Adoption is referred to by their Lordships in regard to both its aspects: its religious significance, as well as the effect of making the adopted son the heir to the property of the adoptive father.
26. In the first paragraph of page 310, in construing the document authorizing the adoption, dated November 9, 1819, their Lordships say that some limits must be assigned to the period within which the adoption may be made: and that it could hardly have been intended (by the father) to be prolonged for such a period as to make it continue in force even after all the spiritual purposes of a son, according to the largest construction of them, had been satisfied,-as might have happened, if (a) the son of Gour Kishore, the original owner, had succeeded to his father, leaving a natural or an adopted son, and(b) that son had himself left a son, (c) who had attained majority. (This last would be the great graudson of the father, the donor of the power of adoption), This was a possibility that their Lordships contemplated as not un-worthy of consideration, a possibility which the terms of the document giving the power to adopt, taken literally, did not exclude. They come to the conclusion that this could not have been the real intention of Gour Kishore, the donor of the power.
27. So far in regard to the interpretation of the document and the intention of the donor of the power.
28. They then go on to the second point, and ask ' whatever may have been the intention, would the law allow it to be effected ?' They answer that question also in the negative. In doing so, they refer, first, to the fact that the Judges in India conceded (and their Lordships held, conceded correctly) that in the hypothetical circumstances suggested above, the power of adoption given on November9, 1819, to Chundrabullee Kishore, the widow of Gour Kishore, would have come to an end. Secondly, their Lordships held that the circumstances which had actually taken place were such that the same result must take place as in the hypothetical case put by them.
29. It is, therefore, clear that their Lordships were considering the limits to the period within which the adoption under a specific power to adopt could be made, not merely on a construction of the specific document, but under the general law.
30. They observed that in that case there were present three or four main considerations: (1) the donor of the power (the father Gour Kishore) had left a son (Bhowanee Kiahore) who came to an age when all the religious services that a son has to perform for a father could be performed by him; (2) he (Bhowanee Kishore) succeeded to the ancestral property as heir (a) having full power of disposition and alienation over it; (b) he might have adopted a son to succeed to it, if he had no male issue of his body; and (c) he could have defeated every intention which his father (Gour Kishore) entertained with respect to the property; (3) on the death of the son, his widow (Bhoobun Moyee) succeeded as heir to him, and would-under the law of Bengal-have equally succeeded in that character in exclusion of his (her husband Bhowanea Kishore's) brothers, if he had had any, taking a vested estate, as his widow, in the whole of his property; (4) their Lordships later add a fourth circumstance-I shall presently cite their words- which it is convenient, though perhaps not quite necessary, to state as distinct from the third consideration, viz., that the adopted son takes by inheritance, not by devise; that by Hindu law in the case of inheritance, the person to succeed must be the heir of the last full owner: consequently the person that was entitled to succeed in that case was the heir of Bhowanee Kishore, the son; but if the adoption were upheld, the heir of Gour Kishore, the father, would succeed. In such circumstances, their Lordships say that it would be singular if a person brought into the family by adoption (viz., the plaintiff, whom Chandrabullee Debi, the widow of the father, purported to adopt) could take the whole of the property from the widow (Bhoobun Moyee) then in possession of it, although a natural brother of the deceased Bhowanee Kishore could have taken no part of it. This last observation in the form in which it is put is (it need hardly be said) applicable only to the law of Bengal.
31. Their Lordships recapitulate the circumstances in Bhoobun Moyee s case in these terras (p. 311):-
The question is, whether the estate of his son being unlimited, and that son having married and left a widow his heir, and that heir having acquired a vested estate in her husband's property as widow, a new heir can be substituted by adoption who is to defeat that estate, and take as an adopted son what a legitimate son of Gour Kishore would not'-under the law of Bengal -'have taken.
This, their Lordships held, ' is contrary to all reason and to all the principles of Hindu law.' They proceed: (p. 311)-
It must be recollected that the adopted Bon, as such, takes by inheritance and not by devise. Now, the rule of Hindoo law is, that in the case of inheritance, the person to succeed must be the heir of the last full owner. In this case, Bhoimnee Kishore was the last full owner, and his wife succeeds, as his heir, to a widow's estate. On her death, the person to succeed will again be the heir at that time of Bhowanee Kishore.
32. This last is the consideration that I anticipated a short while ago calling it the fourth consideration : the implication of this is, that if the widow of an earlier owner takes a son in adoption, the son so adopted, not being the son of the last owner, would not succeed to the estate since he would not be the heir of the last owner, but he would be the son of an earlier owner: 'meaning, as we apprehend, that the son adopted by the mother could not succeed as he would, as such, be primarily the heir of her husband and not of his son' : Krishnarav Trimbak Hasabnis v. Bhankarrav Vinayak Hasabnis I.L.R. (1892) Bom. 161 per Sargent C.J.. The limits to which this principle is subject are explained by their Lordships in what I will state immediately below. These limits are also significant in considering the exception to the general rule under which the present case is sought to be brought (p. 311):-
If Bhowanee Kiahore had died unmarried, his mother Chundrobullee Desia, would have been his heir, and the question of adoption would have stood on quite different grounds. By exercising the power of adoption, she would have evested no estate but her own, and this wouldhave brought the case' within the ordinary rule; but no case has been produced, no decision has been cited from the Text-books, and no principle has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated and devested.
33. Later cases have established the principles on which ' quite apart from any question of construction' (of the document giving power to adopt) ' there is a limit imposed by law to the period within which a widow can exercise a power of adoption conferred on her'; and that 'when that limit is reached, the power is at an end ': Madana Mohana v. Purushothama At the same time, that which I referred to as the implication of the fourth consideration has also been very definitely laid down in subsequentcases, 'An estate which has once vested in a previous heir to the last full owner, cannot now be divested by the adoption of a person who would have been a nearer heir, had his adoption taken place previously to the death': Mayne, Section 191, citing Rally Promnno Chose v. Gocool Chunder Mitter I.L.R. (1877) Cal. 295 Bhubaneswari Debi v. Nilcomul Lahiri Faizuddin Ali Khan v. Tincowri Saha I.L.R. (1895) Cal. 565 and Anandibai v. Kashibai I.L.R. (1904) Bom. 461 : 6 Bom. L.R. 464 Similar decisions are given in Annammah v. Mabbu Bali Reddy (1875) 8 M.H.O.R. 108 Shri Dharnidhar v. Chinto I.L.R. (1895) Bom. 250 and Ramkrishna v. Shamrao I.L.R. (1902) Bom. 526 : 4 Bom. L.R. 315 which is approved in Madana Mohana v. Purushothama and Shivbaeappa v Nilava I.L.R. (1922) Bom. 110 : 24 Bom. L.R. 1162
34. The two aspects in which their Lordships considered an adoption : its spiritual aspect, and for the purpose of inheritance to property, have occasionally not been kept in mind. But they have not always been lost sight of: see Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi I.L.R. (1876) Mad. 174Sri Raghunadha v. Sri Brozo Ki-shore and Yadao v. Namdeo (1924) L.R. 48 IndAp 613 : 24 Bom. L.R. 609 Shri Dharnidhar v. Ghinto 13 InShivbasappa v. Nilava I.L.R. (1922) Bom. 110 the validity of the adoption is more than once pointedly distinguished from the effect of divesting the estate : see pp. 112, 113, 114, 116. So in Babu Anaji v. Ratnoji I.L.R. (1895) Bom. 319 it is mentioned that the adoption might be valid for other purposes, though it might not operate to divest the property already vested in a third person.
35. In this connection I must advert to some observations of Sir John Edge delivering the judgment of the Privy Council in Tadao v. Namdeo (1921) L.R. 48 IndAp 513 : 24 Bom. L.R.609 They contain a disapproval of the view that the power of a Hindu widow (in the Mahratta country), who has not the authority of her husband to adopt a son to him, should depend on the question whether her husband had died separated or unseparated, or whether the property which was vested in her when she made the adoption, was or was not vested in her as his heir. 'If it was her religious duty to adopt a son to her husband that duty would be the same in either case, although possibly the right of the adopted son to the property vested in the widow might be different'. The remarks from the earlier cases were reaffirmed to the effect that ' the right of the widow to make an adoption is not dependent on her inheriting, as a Hindu female owner, her husband's estate :' Pratapsing Shivsing v. Agarsingji Raisingji (1018) L.R. 46 IndAp 97 : 21 Bom. L.R. 496 that it may be the duty of a Court of justice to consider the religious duty of adopting a son as the essential foundation of the law of adoption : and to hold the effect of an adoption upon the devolution of property to be a mere legal consequence: Sri Raghunadha v. Sri Brozo Kishore With reference to the effect to be given to these observations, this Court is bound by the Full Bench decision in Ishwar Dadu v. Gajabai I.L.R. (1925) Bom. 468 : 28 Bom. L.R. 782 to hold that Yadao v. Namdeo does not overrule Ramji v. Ghamau and other decisions, which do make the right to adopt dependent on her inheriting, as a Hindu female owner, her husband's estate. I accordingly proceed, in the rest of my judgment, on the basis that the observations of the Privy Council do not in any manner affect the decisions referred to. Even assuming, however, that this basis is incorrect, I presume that in the absence of a more definite disapproval of the said decisions from the highest tribunal, the proper course for this Court is to consider that the decisions need be corrected only to the extent to which they lay down that the devolution of property is the essential foundation of the law of adoption. If this attitude on my part is justified, it does not follow-giving the fullest effect to the observations of the Privy Council- that property which has already vested in third persons should be divested because a valid adoption is made: the observations of the Privy Council are best interpreted (it is submitted) in the sense that an adoption may be valid though it may not be effectual to the extent of divesting any property already vested in third persons, except in the circumstances in which the decisions hold the adoption to be valid and to have the effect of divesting any vested estates: that these two legal effects are not inextricably wedded to each other.
36. I return to the question, within what period the power to adopt must be exercised so as to affect the devolution of property: that is the only aspect of adoption, as I have just explained, with which I am concerned, The question has frequently arisen in the Courts, The considerations that seem to have affected the Judges who have dealt with it appear to fall under the following and similar heads-it is not suggested that the cases can be grouped under these heads:(1) extent of the authority derivable from an express power to adopt given by the husband; (2) fulfilment of the object of adoption; (3) unsettlement of rights to property by divesting of vested rights; (4) liability of a new coparcener being introduced by birth into a coparcenary, and analogy between adoption and new birth; (5) inconvenience of reviving a power once lost; (6) in the case of inheritance the person to succeed must be the heir of the last full owner.These, it will be oberved, are more or less re-statements or offshoots of the four considerations detailed above, relating to Bhoobun Moyee'scase.
37. I might begin with Ramkrishna v. Shamrao : it was held by a full bench that-
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.
Here, the reasoning seems to be based on the fact that the object underlying adoption-continuing the line-was capable of fulfilment otherwise than by the alleged adoption.
38. Previous to that, in Chandra v. Gojarabai I.L.R. (1890) Bom. 463 where the widows of two joint brothers came into competition, the widow of the predeceased brother was held to have no power to adopt: inasmuch as the surviving brother had succeeded to the whole estate, and the survivor's widow had on his death become his heir: the adoption would have ousted the surviving brother's widow.
39. The case before us is also that of the widows of two brothers. The distinction here, however, is that the younger brother (who survived) by his testamentary and other declarations had, if I may say so, to all intents and purposes, effected a partition between himself and his deceased elder brother, as represented by his sister-in-law, Rudrava. This disposition, it is argued, revives the power to adopt.
40. The argument is, that on the principles referred to in Bhoohun Hoyee's case there would neither be : (1) the objection that the religious objects of adoption had been fulfilled in the case of the predeceased brother; nor (2) the secular objection that there would be any divesting of estates ; nor (p) does the son adopted by the elder brother's widow desire to oust the widow of the younger brother from the half to which she has succeeded: that finally (4) even if the son adopted by the widow of the elder brother be taken to have been notionally brought into existence at a time when the elder brother was living, the events that have taken place may be considered to have brought about a severance of interests between the two, and that therefore the principles laid down in Bhoobun Moyee's case are in no wise offended by this adoption.
41. This argument, to be accurate, is not that the power to adopt must be taken to have revived, but rather that the will of the younger brother prevented the power from becoming extinct. Bearing the distinction in mind, it is convenient to speak as of a revival.
42. The argument is strengthened in this way : It is true (as is conceded) that as soon as the elder brother died, the whole of the property devolved upon the younger brother; and that, as an adoption by the elder brother's widow must be taken to refer back to the time when the adoptive father (the elder brother) was living, the adoption would have divested the younger brother from a half of the estate ; but that, since it is admitted (Sri Raghunadha v. Sri Brozo Kishoro Pratapsing shivsing v. Aganingji Raisingji (1918) L.R. 46 IndAp 97 : 21 Bom. L.R. 496 Surendra Nandan alias Gyanendra Nandan Das v. Sailaja Kant Das Mahapatra I.L.R. (1891) Cal. 385 and Vithoba v. Bapu I.L.R. (1890) Bom. 110 that, during the lifetime of the younger brother the widow of the elder could have adopted and introduced into the coparcenary a fresh member, there can in the presentcode (it is argued) be no objection, on principle, to a similar introduction by adoption after the death of the younger brother.
43. This argument-apart from the question whether the power can be held to have revived-has been considered, and rejected in Shivbaaappa v. Nilava I.L.R. (1922) Bom. 110 : 24 Bom. L.R. 1162 apparently on the ground that so long as the younger brother was living, the widow of the elder brother, by adopting a son to her deceased husband, would have brought about the same effect on thecoparcenery, as the birth of a son to a member of the coparcenary; that (speaking with reference to the facts of this case) though the younger brother was the sole surviving member of the coparcenery, he held the property, subject to his interest in it being diminished by new births; but that, once he died and his widow succeeded to him, the widow's interest was not of the same nature: it could not be halved by an adoption to a predeceased coparcener.
44. I may restate the decision as follows : (1) the younger brother, as the surviving member of the coparcenary, held the property as such survivor: the incidents of this tenure are similar to the tenure of allcoparceners : that tenure includes the liability to have the estate diminished by new births to coparceners : adoption (whether by a widow or the coparcener himself) stands on the same footing as new births : but (2) the widow of the last surviving coparcener holds the property under special terms which have their restrictions, but these do not include the liability to any diminution either by new births, or adoptions.
45. The question is thus put in Shivbasappa v. Nilava 2 (p. 113) : -'Whether after the death of the last surviving coparcener when the estate has vested in the widow of that coparcener the adoption effected by a widow of a predeceased coparcener could have the effect of divesting thatestate' and the question is answered in the negative.
46. These considerations, it will be observed, mainly depend on the effect of the adoption on the succession to the ownership of property. But there is another aspect of the matter, even from the secular point of view ought the duration of the power to adopt be considered only from the aspect of the effect it has on the devolution of property and ought the power to be considered as having a longer or shorter duration dependent on the existence or absence of such extraneous circumstances as have or have not the effect of making the property devolve in a manner similar to that which would be brought about by adoption Should the surviving brother's testamentary disposition leaving half the estate to his predeceased brother's widow have the effect of prolonging the time during which that widow may adopt Should A's will have the effect of prolonging the time during which B's widow may adopt These questions lead to an examination of the principles on which a revival of the power is recognized.
47. The rule is indeed so stated in some cases as to leave no room for a revival of the power to adopt. Thus, where the widow purported to adopt after, in the first place, the estate had already devolved on her husband's nephew, and, he having died leaving two widows, the estate had, in the second place devolved on the nephew's widows: the adoption was held invalid: Tejrani v. Sarupchand Chhaganbhai I.L.R. (1919) Bom. 483 : 22 Bom. L.R. 209 That a power given to a widow to adopt is absolutely at an end when once the estate has vested in the heir of her deceased son; and is not revived if she afterwards succeeds to the estate as the heir to the heir of her deceased son, was held in Adivi Suryaprakasa Rao v. Nidamarty Gangaraju I.L.R. (1909) Mad. 228 The proposition had been stated as a general rule in Annammak v. Mabbu Bali Reddy (1875) 8 M.H.C.R.108 in the form that an inheritance once vested in possession cannot be defeated and divested by an adoption,-following directly the words of the Privy Council in Bhoobun Moyee's case (1865) 10 M.I.A. 279
48. The case has, no doubt, been held by the Privy Council (in Vellanki Venhata Krishna Rao v. Venhata Rama Lakshmi I.L.R. (1876) Mad. 174 : L.R. 4 IndAp 1 to be different, and the adoption has been held valid, where the adoption was by a widow who had succeeded to the estate as the mother of her unmarried and minor son : in such a case (a) the widow succeeds as heiress to her son,(b) the adoption is in derogation of only the adoptive mother's estate : although she has taken the same in succession to her son, and not to her husband. The real distinction between Vellanhi Venhata Krishna Rao's case and that in Adivi Suryaprahasa Rao's case seems to be (if I may venture on expressing an opinion, however tentatively) that the widow's power was measured in the former case by the extent of the authority which she could have derived from an express power given to her by her deceased husband to adopt a son : (the power has been treated as being only in abeyance while the estate was vested elsewhere than in the widow : Sangangauda v. Hanmantgauda : AIR1932Bom8 and it is not disputed that the mother can have from her deceased husband an 'express power to adopt on in the event of his natural son dying under age and unmarried' (p.186) : Vellanbi Venkata Krishna Rao's case; but this power cannot be prolonged beyond a period when the son attains majority. This consideration seems to gain support from Lord Haldane's remark in Madana Mohana v. Purshothama that when the natural or adopted son (his Lordship was dealing with an adopted son) attains majority, be brings about a new situation. His mother in the latter case cannot establish a direct succession to her deceased husband, If the son (S) attains full legal capacity to (a) continue the line either by the birth to himself of a natural born son, or (b) by the adoption to himself of a son, by his own widow,-then the authority of S's mother to adopt, conferred on her by S's father comes to an end (see p. 161); and this is not dependent on S having empowered his widow to adopt. This line of reasoning is in direct descent from the fourth consideration set out above from Bhoobun Moyee's case.
49. Secondly, there is a decision of Sargent C.J. and Birdwood J. Krishnarav Trimbak Hasabnis v. ShanJearrav Vinayak Sasabnia I.L.R. (1892) Bom. 164in which an exception to the rule that the power to adopt must end as soon as an adoption would divest a vested estate, has been considered and rejected. Starting with the general rule laid down in Bhoobun Moyee Delia's case that by the vesting of the estate in another, viz., the widow of the son, the power of adoption (given by the deceased to his widow) is at an end, and incapable of execution: the Chief Justice considered whether an exception to the general rule was warranted on the ground and authority of Bykant Monee Roy v. Kisto Soondetee Roy (1867) 7 W.R. 392 The suggested exception (which is rejected) is this: that when the son's widow is dead, and the son's mother succeeds him, then the latter may be permitted to adopt: on the ground that adoption by her would only divest her (viz., the mother's) own estate. He concludes that the exception is not warranted; and relies for the conclusion upon the explanation put upon Bhoobun Moyee's case by the Privy Council in Pudma Goomari Debi v. Court of Wards and the confirmation of the explanation in Thayammal and Kuttisami Aiyan v. Venkatarama Aiyan (1887) L.R. 14 I.A. 67. Sargent C. J.'s judgment illustrates what I have stated just before: the son's mother takes a limited estate and the next heir is the heir of the son, not of themother the son having attained majority the new situation referred to by Lord Haldane is brought about.
50. Thirdly, Telang J, has also considered the principle and the exceptions. He points out (Chandra v. Gojarabai I.L.R. (1890) Bom. 463 that (1) though the principle that a widow cannot adopt so as to defeat a vested interest, is not to be found in that form in the Hindu authorities; yet the principle is too generally received to be now departed from : that (2) on the other hand there is distinct authority for this exception to the principle: an adoption under the husband's authority may divest the estate in an undivided coparcener (p. 467), or, put in another way: 'within a group of united brethren, the widow of one may adopt so as to divest an estate wholly or in part' (p. 471). Then it is explained that there is no real inconsistency if the rule is taken to be this- ' that adoption by a widow under her husband's authority has the effect of divesting an estate vested in any member of the undivided family of which the husband was himself a member, but it does not divest the estate of one on whom the inheritance has devolved from a lineal heir of the husband,' and a third rule is deduced: (3) ' the adoption though authorized by the husband, cannot divest the estate which has already vested in a collateral relation of the husband, in succession to some other person who had himself become owner in the meantime' (p. 470). Finally (4) 'an adoption in a separated branch cannot divest the estate which the law gave to the then nearest collateral, and which has passed unshared to him, who has it.' These rules and observations were from another aspect alluded to by me under the fourth and sixth heads mentioned in an earlier part of ray judgment.
51. To these considerations I need only add what was left doubtful by Miller J. in Adivi Suryapralcasa Rao v. Nidamarty Gangaraju, but cleared up in other decisions : that the widow's not being vested for the time being with the estate is not merely a removable or temporary obstacle in the way of adoption: but that-exoeptis exoipiendis: VellanM Venkata v. Venkata Ramathe vesting of the estate in another person is the limit of time till when the power of adoption derived by the widow continues : once that period is passed she has no more power to adopt. If I have not been too bold in throwing out the suggestion that the apparently anomalous cases may be reconciled to this rule by considering them to refer to adoptions made within such a period as could have been covered by an express power to adopt: so that the extent of the power to adopt (in regard to its duration) is deemed to have been measured in those cases by reference to the utmost duration that may be given to a plenary authority to adopt which a husband may expressly grant to hiswidow, including the authority to adopt, if a son dies under age and unmarried;in view of that suggestion, it would be anomalous to allow the younger brother by his will to extend the duration of a power to adopt, a power that is to be exercised not by his own widow but by the widow of his predeceased brother.
52. Fourthly, there is Ranade J.'s often considered decision : Payapa v. Appanna I.L.R. (1898) Bom. 327 In it the general rule is recognised, that it is only the widow of the last full owner who has the right to take a son in adoption to such owner; and that a person in whom the estate does not vest cannot make a valid adoption so as to divest (without their consent) third parties in whom the estate has vested. But to this general rule four exceptions are enunciated : the avenue through which these exceptions are introduced being mainly the consent of the person in whom the estate is vested. The third of these exceptions is, that the widow of the predeceased son may make a valid adoption with the contemporaneous consent of her mother-in law in whom the estate of the full owner is vested as an heir. Subsequent decisions establish that this exception is very special. It is true that the actual decision has been accepted and followed: Shiddappa v. Nin-gangauda I.L.R. (1914) Bom. 721 : 16 Bom. L.R. 663 and other cases. But the operation of the principles underlying the exception has been confined to the very facts. Those principles have been expressly held not to be universally true and not to be applicable to widows adopting under other conditions. Similar restrictions would be still more oppressive to the observations in the earlier case of Babu Annaji v. Ratnoji I.L.R. (1895) Bom 319 The difficulties of going into the question of consent are well illustrated by the case of Vasudev v. Ramohandra (1896) P.J. 784 in which six Judges participated, and gave judgments most of which seem to differ from each other.
53. In Sangangauda v. Hanmantgauda : AIR1932Bom8 the principle of consent mentioned in payapa's case was not, in spite of great pressure of argument, extended to the converse case : the widow of a predeceased father may not adopt even with the consent of a surviving son's widow, the estate being vested in the son's widow. We are now invited to extend the principle underlying the observations inPayapa's case to the case of the widows of two brothers, As the Court was unwilling to extend the principle even to the case of the same parties (the mother-in-law and the daughter-in-law) where the party consenting and the party adopting were the converse of those in Payapa's case, it seems to me that we ought to resist any temptation we may feel to extend it to two sisters-in-law.
54. The reasoning that once the power to adopt has come to an end it ought not ordinarily to revive is in itself conducive to a clear and definite rule. It leads to certainty in the law. It avoids the inconvenience and embarrassment referred to by Telang J. in Chandra v. GojarabaiI.L.R. (1892) Bom.164 It must in addition be deemed to be clothed with the sanctity of religion itself, according to West and Buhler's Hindu Law (3rd edition, p. 984, 4th edition, p. 880):-
The sacra of a Hindu family are regarded,' they say 'as descending regularly with its estate from father to son for ever. The birth and the initiation of the son make him the joint or the sole depositary of this group of connected rights and obligations. He is hound to provide for his father's sraddhas : he is entitled to the due performance of his own, The proper celebrant is ason begotten or adopted ; but if the estate passes to a remoter heir the duty goes with it The lastholder though no ceremonies are so effectual as those performed by a son yet receives such benefit as is possible from the actual successor to the property. Now by an adoption higher in the line this bleasing is lost. The son adopted, for instance, by the mother of one deceased, performs a father's sraddhas for his ceremonial father, but not for his ceremonial brother. The latter is thus, according to Hindu sentiment, placed in a worse position than if there had been no adoption at all. If the deceased have left a widow, it is she alone who, as partner during his life of his saora, and capable of continuing them after his death, can in accordance with theory adopt a son.
55. These observations are referred to by Sargent C.J. in Krishnarav Trimbak Hasabnia v. Shankarrav Vinayak Hasabnis I.L.R. (1892) Bom. 164 The last sentence furnishes an explanation also of the theory that the adoption would be to the last holder of the property: it leads us back to the considerations underlying the decision in Bhodbun Moyee's case.
56. The only remaining point of distinction (if it is a point of distinction, and is not covered by what I have already said) is that the surviving coparcener (Rudrappa) had, by his own declaration, prior to his death, devised that the property should be divided between the widows. Ought then the power to adopt be taken to have revived-or rather to have been saved from extinction The authorities seem to show that, though, in such a case, the widow of the predeceasedcoparcener does not take any interest in the property as such widow, and though the property she thus acquires is acquired under the will of the surviving coparcener, nevertheless the acquisition of the property does not affect the right of adoption, and must be put out of consideration : Manikyamala Bose v. Nanda Kumar Boss I.L.R. (1906) Cal. 1306 and Adivi Suryaprakasa Rao v. Nidamarty Gangaraju I.L.R. (1809) Mad. 228; though here the last surviving coparcener, of his own volition brings about the state of conditions whose existence is necessary for making the adoption valid, the effect is brought about through a different agency,-an agency whose authority does not extend into the domain of the particular adoption which is in question: that which the last surviving coparcener can do by his will, is to effect a particular disposition of property ; there is no connection between this disposition of property and the power of adopting a son possessed by the widow of another predeceased coparcener. The consent to the adoption by the person in whom the estate is vested is ineffective to validate the adoption, if once the power to adopt has been extinguished: Sanganyauda v.Hanmantgauda : AIR1932Bom8 . The last coparcener's testamentary disposition inviting an adoption by the widow to a predeceased coparcener-assuming that it does contain an invitation to adopt-cannot in this respect stand on a higher footing than such a consent to the adoption as I have mentioned : nor is this the case of a power having been in abeyance and the obstruction having been removed : this is the case of a power that would in the natural course be at an end,-a case of giving to such a power a new life. There is no undivided family remaining into which an adopted son can be admitted by virtue of such an adoption. The devise cannot provoke to life the ashes of deceased coparceners. Turning again to the widow of the last surviving coparcener, she does not take from him by succession as in an undivided family, but strictly by inheritance: Chandra v. Gojarabai I.L.R. (1890) Bom. 463
57. Finally, Kumud Bandhu Saha v Bamesh Chandra Saha I.L.R. (1919) Cal, 740 has been relied upon as almost a direct authority in support of the adoption of the third defendant. In that case the father (R) bequeathed his property partly to his son (K), and partly to his widow (M). The son, K, died leaving a widow, who purported to adopt; but it was held that she had not been given any power to adopt, and the adoption by her (K's widow) was held to be void, The father's widow, M, thereafter, adopted under the powergiven to her which power expressly authorised her to adopt both in the lifetime of the natural born son, K, and on his death. The adoption by the father's widow, notwithstanding that the estate had already first devolved on the son, and the son had married and left a widow, was held to be valid. But the decision seems to have proceeded on various special grounds which are absent in ourcase : the father's widow had been bequeathed certain property by her husband, and she had been given power to adopt three sons in succession who were entitled to succeed to the property bequeathed to her, in priority to the natural born son, I have alluded more than once to the acceptance by the Privy Council of the principle that the extent of the widow's general power to adopt may in some respects be measured by the extent of the authority which she could have derived by an express power to adopt: Rajah Vellanhi Venkata Krishna Rao v. Venkata Rama Lakshmi Narasaya (1876) L.R. 4IndAp 1 : I.L.R. 1 Mad. 174 Again, the eon's widow, in Kumud Bandhu'a case, was not given any power to adopt (under the Bengal School of law express permission to adopt being necessary): she was, therefore, incapable of continuing the line : thus the spiritual benefits which adoption brings were not available unless the father's widow exercised her power. Finally, it seems that the decision proceeded on the basis (see p. 768) of the son having taken the property by bequest, and to have taken only a restricted interest-an interest so limited that a son adopted by the father's widow would prevail over him. If these circumstances do not distinguish this case, then it seems to me to be opposed to the authorities that I have cited and the principles to be derived from them.
58. It seems to me, therefore, that the adoption of the third defendant by the second defendant was invalid. Rudrava's right to adopt continued till the death of Rudrappa. That was the point of time up to which the power continued to have force. On the principles that the cases establish, Rudrappa's death did not merely cause a removeable obstacle to arise in the way of the widow (Rudrava) adopting to her deceased husband. Hence the fact that Rudrappa devised half the property to Rudrava did not prolong the life of Rudrava's power to adopt, any more than a power once dead would have been revived by the estate subsequently becoming vested in the widow. Assuming that Rudrappa's will may be taken as indicating his consent to the adoption, his consent cannot affect the life of a power derived from another coparcener: nor has the principle of consent validating adoptions been so favourably considered by the Courts as to permit of its being extended to cases not already covered by the decisions.
59. I accordingly agree that these appeals should be dismissed with costs.