1. This second appeal arises out of a suit filed by the Appellant for a declaration of his title to and possession of a piece of land and a house. The plaintiff's case was that these suit properties and others belonged to one Gundabhatta who died on 11-6-37 leaving behind him a widow Shakambaramma and without any issue male or female. Shakambaramma had duly adopted the plaintiff on 20-6-1938 and had also executed a registered deed of adoption of the same date to evidence it. Thereby the plaintiff had become entitled to all the properties movable and immovable of the deceased Gundabhatta. He learnt that Shakambaramma had, prior to the adoption, gifted away the suit properties to the defendant by a registered deed of gift dated 24-5-1938 and he was in possession under the gift. The plaintiff was not bound by that gift which was wholly beyond the powers of the write make and, as his own rights as adoptive must be deemed to have accursed as from the date of Gundabhatta's death, he was entitled to have that alienation declared void and of effect and to recover possession of the properties.
2. The defendant admitted the adoption. His pleaded that he was also a close relation to Gunadabhatta who had brought him up to infancy and protected him and had express his desire that the suit properties should to him. In accordance with such wish, widow Shankambaramma, who became their (sic) and absolute owner after his death, had gifted those properties in his favour and the same was binding on the plaintiff as his adoption was admittedly after the gift.
3. The Munsiff of Davangere, in who Court the suit was filed, considerate that those pleadings the suit could be disposed without recording any evidence, and dismissed the suit after hearing arguments. He upheld the defendant's plea that as the adoption of the plaintiff was admittedly subsequent to the gift in favour of the defendant, the same way binding on the plaintiff and could not be questioned by him. The Subordinate Judge of Chitaldrogg, on appeal, affirmed that decision.
4. It is contended here before us by Mr. Krishna Murthy, learned Counsel for the Appellant, that the Courts below have not properly considered and applied to this case the principle of law which has been laid down in the case decided by a Full Bench of this Court reported in 'CHIKKAVVA v. CHIKKAPPA', 54 Mys HCR 12. He urges that, as decided in that case, the rights of the adopted son relate back to the date of death of the adoptive father Gundabhatta; and as a Hindu widow has no right at all to make a gift of her husband's properties, the gift in favour of the defendant is entirely void and inoperative. By reason of the adoption, the defendant became divested of his rights in the suit properties which became vested in the adopted son. He refers to Section 9(2)(a) of the Hindu Law Women's Rights Act of 1933 and argues that according to it the effect of the adoption is to divest the widow of her estate even in her stridhana property which she has got by inheritance from her husband.
5. It has no doubt been held in 'CHIKKAVVA v. CHIKKAPPA', 54 Mys HCR 12 which follows the decision of the Privy Counsel in 'ANANT BHIKKAPPA v. SHANKAR RAMCHANDRA' that an adoption made by a widow in pursuance of her husband authority dates back to the death of the adoptive father and will have the effect of adoptive father and will have the effect of divesting the estate vested in the heir of the last surviving coparcener and vesting it in the adopted son; but that decision as well as the decision it has followed make it clear that the vesting is however subject to lawful alienations made in the meantime by the person who was entitled to hold the estate until the adoption.
Moroever, in Mysore we are governed by the Hindu Law Women's Rights Act of 1933 v (sic) defines the rights of the widow in such (sic) Section 10(1) of that Act defines stridha(sic) as being property belonging to a Hindu female other than property in which she has by (sic) or under the terms of any instrument only limited estate and under Clause (2)(g) of his section 'stridhana' includes among others (sic) party taken by inheritance by a female for of her husband or son except when there is a and daughter or daughter's son of the propositus and alive at the time the property is so inherited. Section 11(1) describes the nature of the estate possessed by a female in such stridhana. A female owning stridhana property has over it absolute and unrestricted powers both the enjoyment and disposition inter vivos and by will subject only to the general law relating to (sic)gardianship during minority.
The Provision in Section 9(2) to the effect that adoption made by a widow shall divest her (sic) her estate in Stridhana property other than such as she may have taken by inheritance from her husband must be read along with the powers of the widow to deal with the stridhana property she has inherited from her husband over which she has unrestricted and absolute powers of alienation not merely inter vivos (sic) even by will. Immediately her husband (sic) dies, the property would vest in her by (sic); thee can be no holding in absence of such inheriting and even Section 9(2) refers to 'diversting' thereby obviously and properly recognizing the earlier vesting of the estate in the widow as an heir. The possible contingency of the widow adopting cannot prevent the vesting of the estate in her once it is so vested and inheritance carries with it all the rights, privileges and incidents conferred on her by Section 11(1). She can deal with the property as the chooses and the ordinary rule of Hindu Law that a widow with only a limited estate could not make a gift of the property but could alienate it only for purposes of necessity or benefit binding on the reversioner has no application and cannot curtail her rights under Section 11.
6. It has been held by the Privy Council in 'Krishnamurthi Ayyar v. Krishnamurthy Ayyar' that when a disposition is made inter vivos by one who has full power over property is carried away no rights of a son who is subsequently adopted can affect that portion which is disposed of and that the same is true even when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt, though it is different when the adoption is antecedent to the date at which the disposition is meant to take effect; see also 'Veeranna v. Sayamma'. 52 Mad. 398. To hold otherwise would open the door wide for fraud and be most unsettling in its effects on title to property. The widow after alienating the properties of her husband could by her own action of adopting either by her own action of adopting either by her own will or in collusion with the reversioner defeat her own alienations in favour of innocent purchasers years after it was made. The adoption may be made after any length of time and cases are not wanting and have come to our notice where the widow chose to adopt over 50 years after her husband's death. Even in those cases the alienation made by the widow at a time when she was full owner and perfectly competent to do so could be challenged on the strength of the fiction that the adoption son must be taken to have been born on (sic) date of the death of the adoptive father.
7. Mr. Krishnamurthy contends that Section 9, Clause (3) which provides for arrangements which can be made prior to or at the (sic) of the adoption whereby the rights of the adopted son can be limited curtailed or post(sic) son can be limited curtailed or post(sic) in the interest of the adoptive mother list be taken to have made sufficient provision for such a situation. But that section is obviously meant to enlarge the rights of the widow and to protect or place on a surer foundation the pre-adoption arrangements and contracts between the adoptive son or his guardian and the adoptive mother. This was: necessary in order to avoid such arrangements being questioned either absolutely or on the ground of the same being not reasonable or unsupported by custom as could have been done under the ordinary Hindu Law; vide 6 Mys. L.J. 425: 34 Mys. C.C.R. 54 following 'Krishnamurthi Ayyar v. Krishnamurthy Ayyar', 50 Mad. 508 P. C.; 'Hemendra Nath v. Jnanendra Prasanna', 63 Cal. 155 and 'Visalakshi Animal v. Sivaramien', 27 Mad 577 (F.B.).
8. In the result we hold that the decisions of the Courts below are correct. This appeal is therefore dismissed without notice to respondent.
9. Appeal dismissed.