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Venkatiah Vs. Kalyanamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 450 of 1947-48
Judge
Reported inAIR1953Kant92; AIR1953Mys92; ILR1953KAR357
ActsMysore High Court Act, 1884 - Sections 15(2); Mysore High Court (Amendment) Act, 1952; Hindu Law; Hindu Law Women's Rights Act, 1933 - Sections 8, 9, 9(2), 10, 10(2) and 11(1);
AppellantVenkatiah
RespondentKalyanamma and ors.
Appellant AdvocateNittoor Srinivasa Rao, Adv.
Respondent AdvocateA.R. Somnatha Iyer, Adv.
Excerpt:
- religious endowments act, 1863 [repeal by act ii /1927] section 6 of act ii of 1927 & section 8; [a.s. bopanna, j] application of the repealing act held, section 8 would clearly indicate that the repeal of religious endowments act would apply in so far as hindu religious endowments to which the act applies. but in so far as the jain religious endowments, the repeal by act (ii) of 1927 is not applicable. further, the religious endowments act 1863 has been repealed only in so far as it applies to hindu religious endowments and the repeal is specific to that extent and therefore the applicability of the act to the jain religious endowments act, 1863 is still applicable to the jains of dakshina kannada. section 10; maintainability of application under power of the district judge to.....ordervasudevamurthy, j.1. i and ray learned brother mallappa j. referred to the full bench two questions of law arising in this second appeal. the matter was heard by the full bench of all the judges of this court and orders were reserved. 2. such a reference is governed by section 15(2), mysore high court act, i of 1884. as that sub-section stood at the time of the reference any bench could refer to a full bench any question of law or usage having the force of law, the construction of any document or admissibility of any evidence in any proceeding pending before it on which there was no further appeal under the law for the time being in force. 3. under articles 133 and 134 of the constitution of india appeals have now been provided to the supreme court against the decisions of this court.....
Judgment:
ORDER

Vasudevamurthy, J.

1. I and ray learned brother Mallappa J. referred to the Full Bench two questions of law arising in this second appeal. The matter was heard by the Full Bench of all the Judges of this Court and orders were reserved.

2. Such a reference is governed by Section 15(2), Mysore High Court Act, I of 1884. As that sub-section stood at the time of the reference any Bench could refer to a Full Bench any question of law or usage having the force of law, the construction of any document or admissibility of any evidence in any proceeding pending before it on which there was no further appeal under the law for the time being in force.

3. Under Articles 133 and 134 of the Constitution of India appeals have now been provided to the Supreme Court against the decisions of this Court in civil and criminal cases though subject to certain limitations. A question has been raised as to whether a reference could have been made under Section 15(2) in view of this circumstances. There appears to be some force in that objection, though it may also be argued that as an appeal does not lie to the Supreme Court as a matter of course in this second appeal, the reference to the Full Bench may not be incompetent.

4. Recently in order to remove any doubt in this matter the Mysore High Court Act has been amended by Act 24 of 1952 by omitting the words 'on which there is no further appeal under the law for the time being in force' with the result that there can now be no objection to the making of a reference to the Full Bench in such cases. It is unnecessary to go into any discussion of the question about the legality or otherwise of the reference already made as the question has now become purely academic; and to avoid any possible objection I am of opinion that the reference should be returned to the Bench which heard and made the reference so that it may either make a fresh reference under Section 15(2) as amended, or otherwise deal with the second appeal in accordance with law, and it is ordered accordingly.

Medapa, C.J.

5. I agree.

Venkataramiah, J.

I agree.

Balakrishnaiya, J.

I agree.

Mallappa, J.

I also agree.

(Note--The Fuller Bench by its order dated 30-10-52, having referred the matter to the Division Bench which made the reference, the appeal came on for hearing on 12-11-52 and the Court delivered the following judgment :)

Mallappa, J.

6. The property in dispute in this case belonged to one Marianna who died leaving two sons Dasanna and Kariyanna. Kariyanna died leaving a son by name Dasap-pa, who is defendant 1 in the case. Dasanna who survived his brother Kariyanna lived together with his son Chikkamariyappa and his brother's son Dasappa, defendant 1, as members of a joint family. Thereafter Dasappa (Dasanna?) died, but his son Chikkamariyappa continued to live with defendant 1 as member of a joint family till the former died, leaving his two widows Kalyanamma, defendant 2 and Kempamma defendant 3. Thus the entire property came to the hands of defendant 1 Dasappa the sole surviving coparcener.

7. As usually happens in cases of this kind disputes arose between defendant 1 Dasappa and the widows of his uncle's son and criminal proceedings under Section 145, Criminal P. C., ensued. The result was that defendant 1 was forced to file a suit for partition of all the joint family properties between himself and the present defendants 2 and 3 the widows of Chikkamariappa. Defendants 2 and 3 contended that their husband was divided from defendant 1 and they were entitled to a half share. They were, however, unable to prove the division with the result that they got 1 share, while defendant 1 got 3 share. An appeal was filed but was also dismissed. Thereafter in execution of the decree partition was effected. But one of the widows not being content with depriving defendant 1 of the share is said to have taken the plaintiff in this case in adoption under the registered deed dated 11-2-42.

8. Courts below have dismissed the suit on the ground that even if the adoption is true the adoption cannot divest property vested in defendant 1 after partition between him and the widows of his uncle's son. There is no longer any joint family property after the partition and the theory of the adoption relates back to the death of the adoptive father, was not accepted in -- 'Sankaramma v. Krishna Rao', 43 Mys H C R 415 (B). Moreover it was pointed out that if the adoption must be deemed to have taken place at the time of the death of the adoptive father, the adopted boy would be entitled to a share in the shares the widows got subsequent to their husband's death and the Hindu Law Women's Rights Act which states that an adoption does not divest the estate a widow gets in partition has recognized the correctness of the decisions such as -- 'Rudramma v. Sangana Basappa', 17 Mys C C R 145 (C) followed in '43 Mys H C R 415 (B)'. The learned Munsiff also refers to the fact that when an attempt was made to refer the question to a Full Bench Abdul Ghani J. and Nageswara Iyer J. refused to do so on the ground that the law in Mysore as enumerated in '17 Mys C C R 145 (C)' has prevailed in Mysore for over 30 years and that if any other view is to be adopted now, at least so far as the divesting of property is concerned, title based on the law as stated in -- 'Rudramma v. Sangana Basappa', (C) would get unsettled. These were some of the reasons which induced the Courts below to come to the conclusion that even if the adoption is true, the adopted son gets no title to the property which defendant 1 and the widows of his uncle's son got in the partition effected in accordance with a Court decree.

9. After the lower Courts decided the case and before this appeal came up for arguments the decision relied on by the lower Courts has been overruled by the Full Bench decision in '54 Mys HCR 12 (A)' on the basis of which the lower Courts dismissed the suit. We, however, thought that the decision in '54 Mys H C R 12 '(A)' requires reconsideration for the following reasons :

10. The recent Full Bench decision, -- 'Chik-kavva v. Chikkappa', reported in '54 Mys H C R 12 (A)' which holds that the law laid down in '43 Mys HCR 415(B)' and 'Dasappa v. Se-shagiri Rao', 16 Mys L J 301 (D) as regards the effect of adoption on the property is not correct and that an adoption divests estates vested in the heir of the last surviving coparcener has upset the law prevailing in the State for a very long time till the date of that decision is causing considerable hardship. Sometimes it happens that the husband dies when the wife is hardly 12 or 13 years old and it is not unusual for the widow living till she is 90 years old. 'Vyankatrav Anandrav v. Jayavantrao', 4 Bom II C A C 191 (E) is a case in which a boy was adopted by a widow 71 years after the death of her husband. In a recent case in this Court an adoption was claimed to have taken place by a widow 72 years after the death of her husband. In some Bombay cases the periods were twenty, twenty-five and fifty-two and even seventy-one years after the husband's death as observed by Mayne in his book on Hindu Law. Cases in which a widow takes a boy in adoption three-fourths of a century after the death of the husband may not be common, but adoption a quarter of a century after the death of the husband is not unusual. By that time a dry land might have been converted into a wet land, a wilderness might have been converted to a coffee estate and a waste land might have become a cocoanut garden. If the adoption by a widow divests the estate vested in the heir of the last coparcener of a joint family, one fourth of a century or a half a century after the death of the husband, persons who have spent all their energy in improving the property would be ruined. Set up by mischievous persons, widows who had not thought of saving the souls of their deceased husbands for a score of years or more, suddenly get anxious about them and adoptions evidenced by registered documents come into existence. Act 10 of 1934 raises a presumption of the widow having the permission of her husband for an adoption. Persons who have inherited the property a good many years prior to the adoption and have improved the estates will be deprived of them. Those who are careful would sell away the property and realise some money to avoid the widow taking any boy in adoption and depriving them of the property, as according to the Full Bench decision adoptions do not affect such alienations.

11. If the view taken by the Full Bench decision is the correct exposition of Hindu Law on the point, the only remedy is legislation. Fortunately it has to be stated with great respect that there is nothing in Hindu Law which supports the view that an adoption divests the estate vested in the heirs of the last coparcener of the joint family to which the property originally belonged. It is commonly believed that various methods of acquiring subsidiary sons when no son is born to a Hindu, were thought of, as it was believed that a son is needed for the salvation of the soul of the father. It is unnecessary at this stage to show that this statement is not quite correct, and that Hindu religion only recognized the prevailing practice of people without sons acquiring subsidiary sons by adoption etc., but that it discouraged the practice. It is, however, at the same time clear that, whatever the origin may be for acquisition of sons by these methods, Hindu religion recognized that the adapted son acquires the family name and the property of the adoptive father while he is under the obligation of offering Pinda to the deceased ancestors of the family into which he is adopted.

12. It has to be stated with respect that it is necessary to reconsider here the correctness of the following observation in the Full Bench decision as regards the time from which these rights and obligations arise:

'To our mind, the learned Judges in '43 Mys HCR 415 (B)' and '43 Mys HCR 438 (D)' in taking the view that an adoption, so far as it affects property, cannot relate back to the death of the adoptive father though, (or the continuance of the family line and the religious and secular consequences of that continuance, it must so relate back overlooked a very important feature of the Hindu Law of adoption that, according to Dharma Sastras the effect of an adoption as regards the Gotra the Riktha and the Pinda should be the same and the three things cannot be dissociated from each other. It is, therefore, impossible according to the Dharma Sastras to say that for purposes of continuance of the family line and religious ceremonials or acts (Gotra and Pinda) the adoption must relate back to the death of the adoptive father, while as regards property (Riktha) it cannot have that effect. In this connection, we may refer to verse 142 in Chapter 9 of Manu Smriti which runs thus:

xks=fjDFk tuf;rquZ gjf=e% fpr A

xks=fjDFkkuqx% fi.Mks O;iSfr nnr% Lo/kk AA**

That verse is translated thus in the Sacred Books of the East edited by Max Muller, Vol. 25 :

'An adopted son shall never take the family (name) and the estate of his natural father; the funeral cake follows the family (name) and the estate, the funeral offerings of him who gives (his son in adoption) cease (as far as that son is concerned).' 13. A very important feature of Hindu Law of adoption that is stated to have been overlooked in the two decisions overruled is 'that according to Dharma Sastras the effect of adoption as regards Gotra, Riktha and Pinda should be the same and the three things should not be dissociated from each other.'

'It is not clear what Dharma Sastras lay down that these are invariably connected. As observed in -- 'Tevanappa v. Somappa Tammun-gauda', 33 Bom 669 at p. 691 (F) 'It is not always necessary for funeral ceremonies that the person performing them should be of the same Gotra as the deceased. A sister's son and a son-in-law can per form those ceremonies and yet they are not of the Gotra.' It will thus be seen that all that is stated in the text of Manu is that while the duty to offer funeral cake to the natural father ceases along with the right to his property if any and to his family name, the duty to offer funeral cake to the ancestors of the adoptive family arises along with his right to take the Gotra, i.e., family name of that family and Riktba, i.e., properties, if any, of that family. The duly to offer funeral cake in the natural family 'does not depend upon that family having some property. Similarly the duty to offer the funeral cake does not depend upon the adoptive family having some property at the time of adoption. The duty is independent of the right to take the property. An adopted son cannot shirk his liability to offer Pinda by his refusing to take the property. Similarly his right to the property is not affected by his failure to perform his duty. A Sudra has no Gotra; still adoption by a Sudra is recognized in Hindu Law. Vyavahara Mayukha states that a Sudra can take a boy in adoption but that he must get Datta Homa performed by a Brahmin. The adopted son of the Sudra gets the property of his father though he has no Gotra to give him. The above text of Manu does not say that the Gotra, Riktha and Pinda are invariably connected with each other. It only says that Pinda follows Gotra and Riktha and the reverse proposition is not laid down. As observed in --'33 Bom, 669 at page 691 (F)' :

'Manu's text says that the funeral oblation follows the inheritance, not the inheritance the funeral oblation. Nilakantha in the Vyavahara Mayukha makes this clearer. The funeral rites of the deceased, as far as the 10th day inclusive, should be performed by whoever takes his wealth, including the king himself. And Vishnu says the same : He who takes the wealth is declared (to be) the giver of the Pinda or funeral oblations' (Mandlik's Hindu Law P. 84 lines 15 to 20). And Balabhatta explains in his commentary on the Mitakshara that 'the right to offer funeral oblations and the right to take the deceased's property by right of heirship are not always co-extensive but they may be opposed fiaMnRoa u fjD;gkfjRoa O;kI;eki rq foijhr** The Viramitrodaya also states that

'The capacity for presenting funeral oblations is not alone the criterion of the right to heritage, since the younger brothers are entitled to the heritage although they are not competent to offer oblations, while there is the eldest brother'. 14. It is clear from the above reasoning that it is not correct to say that according to Dharma Sastras the effect of an adoption on gotra; Riktha and Pinda should be the same and the three things cannot be dissociated. But assuming it is so, all that follows is that after adoption, Gotra, Riktha and Pinda are equally affected. It does not mean that these are affected from the date of the death of the person whose widow takes a boy in adoption. On the other hand, the Gotra of the adopted sort changes only after the adoption. Similarly the duty of the boy to offer Pinda to the ancestors of his natural family does not cease front the date of the death of the man to whom he is adopted. it ceases only from the day of his adoption. Similarly the duty to offer Pinda to the person of whom he becomes an adopted son arises on the date of adoption and not from the date of his death. If Gotra, Pinda and Riktha cannot he dissociated and the text of Manu referred to above shows that the effect of adoption on these three should be same, the adopted son's right to what can be said to be his adoptive father's properties arises, not on the date of his death but on the date of adoption. In fact the adoption ceremony itself makes it clear that he becomes the son of the adoptive parents from the date of adoption and it is incorrect to say that he must be deemed to have been conceived on the death of the person to whom he is given in adoption or that his rights and duties arise even before the adoption. This is made clear from the ceremony of adoption iq=nku izfr& xzgfof/k%

As stated in Vyavahara Mayukha, the vow of the person who gives the boy in adoption is as follows :

^^vLenknhukeL; p iq=L;----orZekufi=iq=k&fnrklaca;/k fufekdkkRdk;Z fuo`k;s----p iq=nkua dfj';bfr** The vow of the person who takes the boy in adoption is as follows:

^xzgh';ek.kiq=L;rTt%dknhukap ijLija orZekufi=&iq;=kfn rkRlaca/kfuo`k;sLenknhuka pijLija fi=iq=kfn&rklaca;/kfufekdrkRdk;Zizo`k;s p izfrxzfg'; bfr*

The vows taken by the giver and acceptor of the boy in adoption at the time of the adoption show that the boy is given and taken in adoption for the cessation of the several duties that were at the time of adoption existing between the procreator tud and his son as well as for bringing into existence the duties arising from the connection between the son and the adoptive father on account of the adoption. Tile word ^^orZeku** underlined (here in ' ') in the above text emphasises the fact that the duties and rights of the adopted son in his natural family cease and the duties and rights in the family of adoption arise only with effect from the date of adoption and not earlier. It follows from the adoption coremony itself that not only for the purpose of Gotra and Pinds which is treated in the Full Bench decision as equivalent to continuance of family line and religious ceremonials, but also as regards Riktha, i. e., property, it has to be said that the adoption is effective only from the date of adoption and not from the data of the death of the person to whom the boy is given in adoption. It is, therefore, necessary to reconsider the correctness of the following observations in the judgment of the Pull Bench:

'It is therefore impossible, according to the Dharma Sastras, to say that for purposes of continuance of the family line and religious ceremonials or acts (Gotra and Pinda) the adoption must relate back to the death of the adoptive father, while as regards property (Riktha) it cannot have that effect'. The texts ^^vkRek o iq=ukekfl** and ^^;L;SokRek rFkk iq=%**

'relied on in the judgment on the Full Bench merely support the Hindu notion that the father himself is born as the son and the wife is therefore known as 'Jaya'. Evidently the text of Manu Smriti that supports this is IX 8'. ifrHkkZ;k laizfo'; xeksZ HkwRosg tk;r A

tk;k;kLrf) tk;kRoa ;nL;ka tk;rs iqu% AA

The reference is clearly to the birth of a natural son and not an adopted son as is clear by the Bhashya of Bhatta Medhatiti

^^'kjhjHkkjHkwr 'kq}kj.k xq.kokur% izo'kk;eqP;rsvkRek oS iq=ukekfl**

There is nothing in this to support the contention that a widow must be deemed to have been pregnant for three fourths of a century or less after the death of her husband and before a boy is taken in adoption. No other text which supports such a contention is relied on or has been brought to our notice. There is much less authority in Hindu Law for holding that adoption divests the estate vested before adoption in a person other than the adoptive mother.

15. It is not correct to say that in Hindu Law an adopted son has been conceived exactly like a son born to the parents. In the Full Bench case itself, it is pointed out that if a son is born to the parents after they take a boy in adoption, the adopted son should only take one fourth share in the family property. Why is this difference made between an adopted son and a natural son if the conception in Hindu Law is that the adopted son must be regarded as if the adoptive mother became pregnant and gave birth to a child? Unlike the case of a natural son, the sapinda relationship of an adopted son extends only to three degrees in the adoptive family and determines prohibited degrees for marriage, the period of mourning, etc. An adopted son cannot marry a girl born in the family of his natural father. According to some authors an adopted son is polluted by impurity on the death of his natural parents though it is agreed that he is not polluted at all on the death of the other members of his natural family. In the case of a legitimate son the period of impurity in such cases is 10 to 30 days according to the caste of the persons concerned while in the case of an adopted son the period of impurity is only 3 days. If after the adoption another son is born to the adoptive father the adopted son cannot perform the sixteen shradhas beginning with Adya ending with Sapindikarma while these are to be performed by the legitimate son. An adopted son unlike the legitimate son can be a Dwamushyavana or the son of two fathers by agreement at the time of adoption & in such a case he has to observe pollution in his natural family and offer funeral cakes to the ancestors in that family also. The adoptive father after adoption cannot give the boy in adoption as he could give a natural son even if another son is born to him. If Upanayana of the adopted son had been performed in his natural family it need not be performed again after adoption in the family of adoption. It is easy to add to these differences between the legitimate son and the adopted son but for the purpose of this case it would be unnecessary to proceed further on this aspect of the matter.

16. As regards the view taken by Courts in India outside Mysore, it has to be stated that the trend of the decisions of those Courts has been mostly against the view that adoption divests estates vested in heirs of the last coparcener of the joint family to which the property belonged before the death of the adoptive father but the Privy Council decisions by which they were guided have always forced them to give up that view. It has to be observed that the validity of an adoption depends upon its being made in accordance with rules of Hindu Law. If it is so made, the adopted son gets certain rights and is liable to perform certain duties. Its validity does not depend upon, on the estate of the father being vested in some one other than his widow or on the adoption divesting the estate vested in that person. It was observed by their Lordships of the Privy Council in -- 'Amarendra Mansingh v. Sanatan Singh' as follows:

'It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognized as the inherent right of the son, is altogether a secondary consideration. So Sir James Colvile, in delivering the judgment of the Board in -- 'Raghunada v. Brozo Kishore', 1 Mad 69 (H) (a case to which further reference will be made later) observes:

'a distinction which is founded on the nature of property seems to belong to the law of property, and to militate against the principle Which Mr. Justice Holloway has himself strenuously insisted upon elsewhere, viz., that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it'. 'Having regard to this well-established doctrine as to the religious efficacy of son-ship, their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a son-less man : see in this connection -- 'Surya-narayana v. Venkataramana', 29 Mad. 382 (I). The Hindu law itself sets no limit to the exercise of the power during the lifetime of the donee, and the validity of successive adoptions in continuance of the line is now well recognized. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property. But that there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect, has long been recognized both by the Courts in India and by this Board, and it is upon the difficult question of where the line should be drawn, and upon what principle, that the argument in the present case has mainly turned'.

17. It is thus made clear by their Lordships that the limit they propose to put to the power of a Hindu widow to make an adoption is not what 'the Hindu law itself sets'. The first line of reasoning was that a limit must be put to the exercise of the right of a Hindu widow when the continuance of such a right is contrary to the spirit of Hindu law based upon the often-quoted judgment by Lord Kingsdown in -- 'Bhoobun Moyee v. Ramkishore', 10 Moor Ind. App. 279 (P. C.) (J). The adoption was by a widow Chandrabala to her deceased husband Gour Kishore after the death of her son Bhowanee leaving his widow Ehooban Moyee. Lord Kingsdown observed that:

'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'. Referring to her power of adoption, their Lordships were of opinion, 'that at the time when Chandrabala professed to exercise it, the power was incapable of execution'. In -- 'Puddo Kumaree Debee v. Juggut Kishore', 5 Cal. 615 (K) it was held by their Lordships of the Privy Council in a case with reference to the same property that 'Upon the vesting of the estate in the widow of Bhawanee, the power of adoption was at an end and incapable of execution'. On the basis of this reasoning the adoption was held invalid and this is how it was understood in all the Courts of India as pointed out by their Lordships in -- ' after referring to -- 'Padmakumari Debi v. Court of Wards', 8 Cal. 302 (L); -- 'Thayammal v. Venkatarama', 10 Mad 205 (P. C.) (M); -- 'Tarachurn Chatterji v. Suresh Chunder', 17 Cal. 122 (P. C.) (N); -- 'Sakrabhai v. Maganlal', 26 Bom 206 (O), in the last of which it was observed by Ranade J.:

'The whole current of recent decisions has been to base the limitation solely on the question whether the widow's act of adoption derogated from her own rights or the vested rights of others'. It was held in -- 'Ramkrishna v. Sham Rao', 26 Bom 526 (P) by a Full Bench that

'Where a Hindu dies leaving a widow and a son, and that son himself dies having 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'. This case was noticed in -- ' in a careful analysis of the older decisions of the Board. This Full Bench decision was approved by the Privy Council in -- 'Madana-Mohana v. Purushothama', A. I. R. 1918 P. C. 74 (Q). In the Privy Council decision, --Pratapsingh Shivsingh v. Agar Singji Raisin-ghji', A. I. R. 1918 PC 192 (R) it was, however, held 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'. Their Lordships concurred with the observation of Wallaces J. that

'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 to be 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'. The limit to the widow's power to take a boy in adoption based on the question of vesting or divesting the property, as recognized for a long time both in the Privy Council decisions and in the decisions of High Courts of India following the Privy Council decisions was held in -- 'Amarendra's case (G)' to have not been based on the true principle. Their Lordships thought 'The true principle must be found upon the religious side of the Hindu doctrine'. It was there held:

'That the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone. But if the son dies himself sonless' and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the son's lifetime will revive.' In their Lordships' opinion there is 'nothing in Hindu Law contrary to this' but they have not, as already stated, based the limit they have set to widow's power of adoption, on Hindu Law. In fact as observed in Mayne 'The Hindu Law itself sets no limit to the exercise of her power'. It may be stated with respect that there is no need to set any such limit to the widow's power of adoption. There, was, as realised in the later Privy Council decisions, no reason to connect her power to adopt with vesting or divesting of estates. Sir James Colvile in '1 Mad 69 (H)' agreed with the principle insisted upon by Holloway J. viz., that

'The validity of all adoptions is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for the spiritual reasons is the essence of the thing, and the subsequent devolution of the property a mere accessory to, it.' This principle was accepted in -- 'Amarendra's case', (G). It is, therefore, clear that while an adoption of boy by a widow may be valid it may not divest the estate, in a person other than the person to whom he is adopted. While the earlier cases which held that an adoption which has the effect of divesting an estate vested in a person other than the widow is invalid are incorrect on the reasoning on which the decision was based, the actual decision itself according to which the adoption had not the effect of divesting property vested in a person other than the adopting widow at the time of adoption, is correct. This in effect is the decision of the Full Bench case, -- 'Balu Sakaram v. Lahu Sambhaii' : AIR1937Bom279 in which it was held that

'An adoption made by a widow of a predeceased coparcener after the termination of the coparcenary by the death of the surviving coparcener is a valid adoption but it would not have the effect of reviving the coparcenary and would not divest the property from the heir of the last surviving coparcener.' 18. It has to be stated with respect that the reasoning of the eminent Judge Sir John Beaumont has not been met by the later decisions of the Privy Council which overruled his decision and the point cannot be better stressed than by giving the following extract of his reasoning :

'In dealing with the law of adoption two aspects of the matter Lave to be borne in mind, first the right to adopt and secondly the effect 'of a valid adoption upon the vesting or divesting of property.. ... In the first place though the right of a Hindu widow to adopt may be based on considerations of religion and the paramount obligation of providing a son to her deceased husband so that there may be some one to perform the religious rites for the benefit of the souls of his ancestors, in actual practice, the very numercus cases of adoption which come before Court are all concerned with questions of property... The widow of a Hindu is frequently a girl of tender ago, who may survive her husband by fifty or sixty years. She is usually subject-ed to much advice of an interested and often dishonest character which takes no account of her own interest. Nevertheless adoptions are often long delayed. If it be held that the effect of a valid adoption by a widow is generally to divest in favour of the adopted son, estates which have become vested in or through an heir of the last male holder, it must mean that so long as the possibility of adoption exists, no one can safely deal with property the title of which may be affected by such adoption. This practical aspect of the matter was recognised by the Privy Council as long ago as 1876 in '1 Mad 69 (II)' in which their Lordships say (p. 193). 'It may be the duty of a Court of Justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption; and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property--and it may be in the case of collateral succession as in the present instance, the rights of parties in actual possession--dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it......'

That warning is, in my view, as appropriate now as it was in 1876.'

19. The principle laid down in this case was accepted in '43 Mys HCR 433 (D)'. It also refers to -- 'Subramanian Chettiar v. Somasundaram Chettiar', AIR 1936 Mad 642 (T) in which,

'though the adoption was held valid, the daughter-in-law of the last holder was not divested of the estate and the adopted boy was treated only as a collateral heir.' It was shown that

'even in Madras the trend of opinion thoughin favour of validity of adoption on religiousgrounds does not appear to definitely recognize that an adoption has the effect of divesting an estate which a collateral heir takesafter the extinction of the coparcenary butbefore the adoption.' The decisions of the Privy Council in 'Amarendra's case' (G) and -- 'Vijaysingji v. Shivasangji' were distinguished. Thefollowing portion of the judgment at p. 319 deserves perusal:

'In Mysore the effect of '17 Mys C C R 145 (C)' is against the adoption having any retrospective effect, in regard to the property. So recently as in 'Gurulingappa v. Dyaviah', 39 Mys H C R 27 (V) on a question of limitation, it was held that the adoption had no retrospective effect. If an adopted son cannot question an arrangement regarding property made at his adoption, or an alienation made by the will of the adoptive father, or even certain alienations made by the adoptive mother for consideration to a third party, it may be argued that he may not also be permitted to question the devolution of property by inheritance prior to his adoption. The state of authority in British India is such that the last surviving coparcener before adoption can do as he likes and even a collateral heir who succeeds to the property may convey a good title to a third party which cannot be questioned by the adopted boy later on. If so, the collateral heir can easily defeat the consequences of a subsequent adoption or an attempt to make an adoption by disposing of the property as soon as the inheritance falls in. One way to avoid such subterfuges would be to lay down that the adoption is valid on religious grounds but that it has not got the effect of divesting any estate which the heir to the last male holder has acquired before the adoption. This is the logical result if adoption has no relation back. It certainly appears to be desirable to accept the religious theory in relation to the validity of an adoption, not only on the ground that the adoption provides for the salvation of the souls of an ancestor, but also on the ground that the adoptive father may have left self-acquired property & the mother may have, property of her own to endow the adopted son with. There may be cases where such an adoption though not affecting the rights in property at the time, would affect reversionary interest later on and the adopted boy may succeed to some other property as heir to a distant relation by adoption. It is not apparent why the adopted boy should be deprived of such rights by holding the adoption to be invalid, particularly when it has taken place.' This decision was followed by '43 Mys H C R 415 (B)' I need only refer to pages 388 and 391 containing the cogent reasoning of Reilly C. J. in support of the judgment,

20. In the early cases before the Privy Council it may be stated with respect that it was rightly decided that properties vested in persons other than the adoptive mother prior to adoption were not divested though the reasoning that the adoption made after the property had been vested in others is invalid wag wrong as shown by their Lordships of the Privy Council in -- 'Pratab Singhji's case', (R) and --'Amarendra's case', (G). The pendulum swung from one wrong end to the other when they however, decided that such adoptions divest estates vested in others before the adoption. The Courts in India as in the Full Bench case of Bombay attempted to distinguish -- 'Pratap-singhji's case', (R) and -- 'Amarendra's case', (G) by adopting the reasoning given in them and stating that the actual decisions were based on the peculiar facts of those cases & were not intended to lay down a general rule that the effect of adoption is to divest estates vested in persons other than the adopting widow before adoption. This was an attempt made in the High Courts of India to construe the Privy Council decisions as consistent with the true principle of Hindu Law which does not contemplate adoptions divesting estates already vested. It is rather unfortunate that a later decision of the Privy Council in -- 'Anant Bhikkepa v. Shanker Ramachandra' , made it clear that what was intended by --'Pratapsinghji's case', (R) and -- 'Amarendra's case', (G) is that the adoption has a retrospective effect and must be construed as if the boy was born on the date of the death of the person to whom he was given in adoption and that it divests estates vested in others after the death of that person.

21. The line of reasoning is that adopted in -- 'Pratapsinghji's case', (R) and it is as follows :

'Again it is to foe remembered that the adopted son is the continuator of his adoptive father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law (3rd Edn. p. 996, note (a)) the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible.' The reason is based on two assumptions: An adopted son is like an 'Aurasa' son and that so far as the continuity of the line is concerned an adoption has a retrospective effect. This is also the line of reasoning adopted in our recent Full Bench decision. It has already been shown how the adoptive ceremony itself makes it clear that it has no retrospective effect. It is, however, necessary to state that Hindu Law abhors extinction of a family ^^iztkrrqa ek O;oPNsPlh%** 'Do not break the line of progeny' is the injunction given in Taittareya Upanishad to students in what may now be referred to as a convocation address of those times. It is equally correct to state that by adoption, the idea as recognized in Hindu Law is that there is no break in the continuity of the adoptive father's line and this continuity is brought about by adoption though it has no retrospective effect. Though a son is not born to a married couple the line is not extinct as there is the possibility of a birth of a son or of a boy being taken in adoption. This is possible so long as one of them is alive as a widow could have continued the line by the method of Niyoga when that was in vogue and she can do so by adoption even now. Till the husband dies, it cannot be said that the line has come to an end. How can it be then said, it may be asked, that the line continues after his death & till the widow takes a boy in adoption unless the adoption has a retrospectve effect? As their Lordships of the Privy Council in 'Amarendra's case', (G) observed:

'In 'Bhooban Moyee's case' (J) Lord Kingsdown evidently relied or the fact that Bhawanee had died at an age which enabled him to perform -- and it has to be presumed that he had performed all the religious services which a son could perform for a father and he refers to the doctrine of Hindu Law that the husband and wife are one and in the widow a half of the husband survives.' There is hardly any doubt that this is the Hindu conception of marriage. This in fact is the significance of the vow taken by the husband. ^^/kesZ p vFksZ p dkes p ukfrpjkfe** As regards religion, the wealth and desires, the two are one is made clear from this vow:

^^/keZ% JwrkS iRU;ka lgksfnr% Religious rites are directed in the Vedas to be performed with the wife, says Manu in IX, 96 of his Srariti. It is because wife and husband are uniled in accordance with the rites prescribed for marriages l;qT;r ;Fkkfof/k .

It is said in Manu Smriti that the woman acquires the qualities of the man whatever they may be. In fact even Akshamala a woman of the lowest birth is referred to as being thus united to Vasista and similarly Sarangi to Mandapala and thus it is said they acquired high honour.

;k Xxq.ksu Hk=kZ h la;qT;sr ;Fkkfof/k A

rkXxq.kk lk Hkofr leqnz.kso fuEuxk AA

v{kekyk ofl'Bsu la;qk/ke;ksfutk A

'kkjaxh eanikyu txkekH;gZ.kh;rke AA

The commentary of Medahtithi on Manu Smriti on the point makes it clear that the wife acquires the qualities of her husband and the union is compared to a river becoming one with the sea and its sweet water becoming brine.

^^;Fkk leqanz.k fuEuxk unhla;qT;ekuk {kkjkndk Hkofr '''8.Oe/kqjjikfi lfr**

22. After stating that a man is perfect when he consists of three persons united, himself, his wife and son. Manu refers in IX-45 of his Smriti to the saying of Brahmins that the husband is one with her.

^^,rkokuso iq:'kks ;Ttk;kRek iztsfr gA

foizk% izkgqLrFkk pSr|ks HkrkZ lk Le`rkaxukAA**

The unity is so strong that he proceeds to add that a wife is not released from her husband either by sale or by desertion ^^u fu'; folxkZH;ka HkrqZHkkZ;kafoeqP;rs**

This is according to him the ancient law ofFrajapati. .Apastamba also says, ^^tk;kiR;ksfuZfoHkkxs fo|rs** i.e., there is no division,between husband and wife. It has alreadybeen shown how by adoption, the adopted boyloses the gotra of his natural father and getsthat of the family of adoption. Similarly asstated by Bruhaspati

^^ikf.kxzgf.kdk ea=k% fir`xka=kigkjdk% A

prqFkhZ gkseea=s.k RoM+ekaln;sfUnz;S% AA

Hk=kZ la;qTt;rs iRuh rnxks=k rsu lk Hkosr A**

The girl is deprived of her father's gotra by marriage mantras. By chaturtha homa mantras she gets into the gotra of her husband; in fact the wife gets united with the husband by the skin, heart and organs. There can be no better conception of unity between wife and husband. No wonder that Privy Council recognized as already stated that 'husband and wife are one and in the widow, a half of the husband survives'. If that be so it cannot be said that the line of progeny is at an end when half of the husband survives in the widow merely because she has not taken a boy in adoption as she can do so at any time before her death just as it cannot be said to have become extinct when her husband was alive, as though they had no children, a boy could be taken by him in adoption. Even after the death of the husband the line is not extinct and it is continued by her taking a boy in adoption at any time before her death. It is only by the death of the husband and the death of his surviving half without the birth of a son or without taking a boy in adoption, it can be said that the line has become extinct. It is, therefore, clear that the notion that an adoption by a widow must be deemed to have come into existence just before the death of her husband is wrong.

23. It remains to show with respect how the other assumption is also incorrect. It is necessary to explain how the view that the adopted son resembles the real legitimate son has gained ground. The explanation is found at page 384 in Sirkar's Hindu Law on Adoption, II Edition and it is as follows :

'We have already seen that in all other respects the adopted son's status in the adoptive family is based upon express texts; and although he is represented as the substitute for the real legitimate son, yet none of the Sanskrit writers appear to lay it down that he is entitled to all the rights and Privileges of the real legitimate son. There are, however, several passages in Sutherland's translation of the Dattaka-Chandrika, which appear to be of the effect; one of which is as follows:

'Next, the funeral rites, performed by a son given, are determined. In respect to these although the son given be first adopted yet the legitimate son existing, he is not competent, to officiate in the sixteen funeral repasts, ending with the Sapindi-karana; for, his superiority in rank is barred by Devala (who says) a teal legitimate son being subsequently born, superiority of rank from age does not vest in them. And a text of Yajnavalkya, recites--Amongst these, the next in order, is heir and presents funeral oblations, on failure of the proceeding. 'Otherwise, the adopted son, in every respect resembles the real legitimate one'.' The learned translator has erred in thinking that the original of the italicized words is a part of the text of Yagnavalkya, and also in translating it in the way he has done. Whereas the correct rendering is,--'In all other (Sradhas, the Dattaka son is competent to officiate) like the real legitimate son'. Ail that the author means to say is, that barring the sixteen Sradhas ending with the Sapindikarana, the Dattaka son is competent to perform all other Sradhas like the aurasa son. Similarly the following passage in Sutherland's translation is misleading:

'Thus the son of the wife, the son given, and the rest, receive the share prescribed for them, by the general law. For grounds for contracting the operation of the same are wanting.' The expression general law has been taken to refer to the general law of inheritance, such as is contained in Chapter II of the Mitakshara or Chapter XI of the Dayabhaga; whereas the correct meaning of the original of the passage is the general rule relating to the inheritance of the subsidiary sons, such as is propounded by Narada and others. The above passages, however, have led to the modern doctrine that except as otherwise expressly provided, an adopted son does, in every respect, resemble the real legitimate son,--a doctrine, which, considered from one point of view, appears to be perfectly consistent with the principles of equity and justice.

The Modern law of adopted son's right of inheritance -- The result of the decisions of our Courts of Justice is, that as regards inheritance an adopted son holds the same position as a real legitimate son, unless his right in any respect has been expressly curtailed.. The distinction based upon possession or otherwise of good qualities, has been ignored, or it is implied that every adopted son must be taken to be endowed with good qualities.'

24. Now to insist on the condition laid down by Manu (IX-141), that an adopted son should be virtuous before he can claim the properties of his father may be in accordance with the principles of equity and justice. To extend the principle opposed to Hindu Law, by stating that a widow must be deemed to have been pregnant from the death of her husband till she takes the boy in adoption dozens of years later and to divest properties vested in the heirs of the last coparcener is opposed to equity and justice. It is neither based on Hindu Law nor on equity and justice.

25. Thus both the assumptions on which the decision of the recent Full Bench case and the decisions relied on it are based, are, it may be stated with respect, incorrect. That a widow must be deemed to have been pregnant from the date of death of her husband for decades before adoption takes place, is a fiction and no useful purpose is served by the fiction. The fiction is raised on the ground that to hold that adoption does not divest an estate vested in persons other than the adopting widow is to refuse to give effect to a valid adoption. This reasoning is based on the assumption that a valid adoption has the effect of divesting property vested in persons other than his parents. This is an incorrect assumption again. In the the case of a coparcenary no member of it has a vested right to any particular shore. His interest fluctuates according to the addition of coparcener by birth or adoption or the death of one of the coparceners. If therefore a widow takes a boy in adoption, he becomes one of the members of the coparcenary according to the above rule. If on the other hand the coparcenary has come to an end by partition, his birth does not help him in respect of what was once coparcenary property. If he has any separate property of his father he gets it. The argument that coparceners can defeat the widow's right to take a boy in adoption by effecting a partition is correct but that is much better than to hold that a widow has, at any time she likes, the power to divest estates vested decades prior to adoption. Moreover, as pointed by Reilly C. J., in one of the cases over-ruled by the Full Bench, an adoption by a widow is only valid on the rebuttable presumption that the consent of her husband had been given. At the time of giving permission a coparcener can, by issuing a notice get divided with the result that a son adopted is sure to get the share he should get. Hindu Law does not say that an adopted son divests estates vested in persons other than his parents prior to his adoption. If a posthumous son gets a right to property as it was at the time he was in the womb of his mother, it is so as he was in fact in existence in the womb and not because such a fiction is raised. Moreover the right of a posthumous son is laid down in the Smrities. On the other hand, there is absolutely no basis for imagining that a widow who was not pregnant was pregnant. The fact, that, while Smrities go to the length of holding that the right of a posthumous son must be recognized from the date of conception, they do not say that adoption should have similar retrospective effect is significant. If Courts are bound to raise such a fiction, it follows that adopted sons have the right to question alienations not made for legal necessity or with the consent of adult coparceners. The decisions are not prepared to go to this length. It is clear that the Smrities did not think of saying that a boy adopted by a widow must be deemed to have been conceived on the death of the husband as the logical effect of that would be that even persons who have purchased properties from heirs of the last coparcener of a joint family would be divested of the property, There are, therefore, very good reasons for reconsidering the Full Bench decision reported in '54 Mys H C R 12 (A)'.

26. The case out of which the point arises for consideration is typical of the mischief a widow is capable of doing, if the view of the Full Bench is allowed to prevail. In the suit for partition the widow got her share. Then she claims to have taken a boy in adoption and he has filed this suit for partition against her and her husband's brother. It is clear she was not thinking of saving her husband's soul at all when she fought for half a share in the suit for partition before taking a boy in adoption. It is doubtful whether she would have thought of adoption if she got half a share. It is a point for consideration whether she is thinking of the property which fell to the share of her husband's coparcener in taking a boy in adoption. 'Property obtained by a female as her share at a partition' is stridhana as stated in Section 10(2f), Hindu Law Women's Rights Act, 1933, while under Section 9(2a) it is laid down that no adoption made by a widow shall divest her estate in any Stridhana property. The widow in this case feels sure that she is not divested of what she got from her husband's brother, and she is evidently thinking of taking a boy in adoption in order to deprive her husband's brother of some more property.

27. A second adoption by the widow after the death of a son or a boy adopted earlier by her and her husband or by her after his death is valid. The theory that an adoption should divest the estate vested in others as if a son had been born at the time the husband died is inconsistent with the Hindu Law Women's Rights Act (1933) which appears to have been enacted consistently with the earlier Mysore view that no divesting of estates takes place. As observed by Sreenivasan in his Hindu Law in Mysore:

'In Mysore the position with respect to this subject has been radically altered by this Hindu Law Women's Rights Act, 1933, According to Sub-section 2(a) no adoption made by a widow shall divest her of her estate in any Stridhana property other than such as she may have taken by inheritance from her husband. It has been held by the Privy Council that on the death of the first adopted son the widow holds the property not as the heir of her late husband but as the heir of her adopted son, and whereas by the fast adoption she establishes a direct succession to the estate of her husband, by the second adoption it is only to the estate of the first adopted son that she can possibly establish a succession. As Leach C. J. observes : 'However much the widow may intend or even proclaim that she is holding the property as the property of her husband it will r.ot alter its character. Neither intention, nor act can change back her first son's property into the estate of her deceased husband. Further, unlike in British India, in Mysore a widow takes the estate of her adopted son as her Stridhana property, and not being an estate taken by inheritance from her husband, she cannot be divested of that Stridhana by any adoption made by her. Hence in Mysore, by virtue of her adoption, the second (or any subsequent) adopted son cannot even divest her of the first adopted son's estate vested in her (it is her Stridhana), much less is he entitled to dispute any alienation made by her after she got the property as heir of her son.' 28. The view taken by the Full Bench that an adoption should be considered as if the adopted boy was born to the adopting widow and her husband at the time of the latter's death and that his property vested in others after his death should be divested by the adoption deserves reconsideration by a Full Bench of five Judges in view of the considerations mentioned above. The following questions were, therefore, referred to Full Bench of five Judges.

(1) Whether the decision of the Full Bench reported in '54 Mys H C R 12 (A)' is correct.

(2) If it is correct what is the effect of adoptions on properties that have become Stridhana property on her getting a share at a partition or taken by inheritance from her son or acquired by her in a compromise in a dispute between her and the sole surviving coparcener of her husband.

29. The Full Bench of five Judges after considering that after appeals are allowed under the Constitution to the Supreme Court from the decisions of this Court felt that it vas doubtful whether a reference can be made to a Full Bench by a Bench on any point of law under the Mysore High Court Act. It was considered unnecessary to go into any discussion on the question of the legality or otherwise of the reference as the question was capable of being answered either way but was academical in view of the fact that amendment of the Act enabling such a reference was then pending. To avoid any possible objection the reference has been returned to the Bench which heard and made the reference so that it may either make a fresh reference under Section 15(2) after amendment or otherwise to deal with the second appeal in accordance with law.

30. The point now for consideration is whether it is desirable to make such a reference again to a Full Bench of five Judges, or to dispose of the case on its own merits. We are inclined to think that it is desirable to remand the case to the lower Court for disposal after recording evidence on the truth or otherwise of the adoption and dealing such other points that are in issue between the parties. The contention that parties have to adduce evidence on all the points at issue between them including the question of adoption and the case cannot be disposed of without evidence, merely on a point of law, in view of the recent Full Bench decision is not without substance. Then again though we do not like to express any definite opinion one way or the other on the question whether the partition between the sole-surviving coparcener and the widow or widows of the deceased coparcener puts an end to the coparcenary into which an adopted son can enter, in the sense it is said 'to put an end to' by Reilly C. J. in '43 Mys H C K -115 at p. 429 (B)' we think that the question of referring the point to a Full Bench of five Judges may be considered if the case comes up at a later stage to this Court or in some other proper case. In view of the fact that the decisions relied on by the lower Court have been overruled by a later Full Bench decision of this Court reported in '54 Mys H C R 12 (A)', the judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court for fresh disposal according to law after recording evidence on all the points at issue between the parties including the question of adoption. The costs of this appeal will be costs in the cause and will abide the final result.

Vasudevamurthy, J.

31. I agree with my learned brother that this case should be remanded to the trial Court for the purpose of taking evidence about the factum and validity of the adoption before applying the law relating to the legal effect of the adoption on the title to the suit properties. I think that as long as '54 Mys H C R 12 (FB) (A)' is in force and is not set aside formally by another Full Bench, neither this Court, much less the lower Courts, can differ from it and in that view I do not feel called upon just now to express any opinion of my own about that decision.

32. Moreover I think the decision of this case may also involve certain other aspects of law which I would briefly indicate here as the decision on the same would have to be by the lower Courts and subject to an appeal to this-Court.

33. In '54 Mys H C R 12 (FB) (A)' it has been held that where, after the death of the last surviving coparcener in a joint Hindu family, the family property passes by inheritance to his heir and subsequently the widow of a predeceased coparcener makes an adoption in pursuance of an authority to adopt given to her by her husband, the adoption dates back to the death of the adoptive father and will have the effect of divesting the estate vested in the heir of the last surviving coparcener or any persons claiming through such heir and vesting the property in the adopted son subject to lawful alienations made in the meantime-by the person who was entitled to hold the estate until the adoption. The decisions of the-lower Courts which were based on '43 Mys H C R 415 (B)' can no longer be supported on that ground. But in the later Full Bench case the effect of a partition between the widow of a deceased coparcener and the taking by her of a share to which she is entitled by a suit provided under Section S(d), Hindu Law Women's Rights Act, did not arise for consideration. Moreover Section 9(2) of that Act provides that no adoption made by a widow shall divest her of her estate in any 'stridhana' property, other than such as she may have taken by inheritance from her husband; and under Section 10(2) (f) property obtained by a female as her share at a partition would be 'stridhana' property over which under Section 11(1) she has absolute and unrestricted powers both of ejectment and disposition 'inter vivos' and by will. Recently it has been held in -- 'Gurunatha Bhatta v. Nadiga Nagesha Rao', AIR 1952 Mys 129 (X) that an alienation by a widow of such 'stridhana' property has preference over the rights of a subsequently adopted son, and Sections 9(2), 10, 10(g) and 11(1) were considered in that connection. The question, therefore, whether if a widow takes a share and subsequently makes an adoption, and her share cannot be divested by reason of Section 9(2), Hindu Law Women's Rights Act, the same adoption can divest the property in the hands of the coparcener would still have to be considered by the lower Courts.

34. The widow of a predeceased coparcener is not a coparcener though she has a right to demand a partition and claim her share as against a single coparcener to whom the joint property has passed by survivorship. This has been held in '51 Mys HCR 317 (Y)'. The effect of this decision may also have to be considered by the lower Courts.

35. In view of the above the judgments ofthe lower Courts are set aside and the Munsiffwill record evidence and dispose of the suit inaccordance with law. The costs of this appealwill be costs in the cause and will abide thefinal result.

36. Case remanded.


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