K. Jagannatha Shetty, J.
1. The question raised in this second appeal is whether the power of widow to adopt comes to an end by the interpretation of a son's widow, the son pre-deceasing his father.
2. The facts are not in dispute. The question can properly be appreciated by reference to the following genealogy:
Balappa (died in 1947)
= 1st wife = 2nd wife
Basalingawwa Shettawwa (Deft. 2)
Gangappa (died Kallappa (deft. 1)
in 1939)--Nelawwa (adopted by Shettawwa
(Deft. 3). in 1947).
Balappa, son of Basawanneppa, had two wives Basalingawwa and Shettawwa. Basalingawwa died long back leaving a son Gangappa behind her. After the death of Basalingawwa, Balappa married Shettawwa. defendant. No. 2 and Gangappa married Neelawwa, Defendant No. 3. Gangappa died in the year 1939 without issues, as a member of the joint family leaving surviving him the widow Neelawwa. Balappa died in September 1947. leaving his second wife Shettawwa. The family continued to remain joint.
3. Ten or fifteen days after the death of Balappa. that is, on 15-9-1947, Shettawwa took Kallappa defendant No. 1 in adoption to Balappa. On 6-12-1949, defendant No. 3 Neelawwa adopted the plaintiff. On 6-2-1950, the plaintiff brought the suit challenging the factum and validity of adoption of Kallappa and also for recovery of possession of the family properties, with the alternate relief for partition and separate possession of his share in case the adoption of Kallappa is held to be valid, and, if for any reason separate possession cannot be granted, he prayed for joint possession.
4. The trial court held that both the above said decisions were valid, and the same view has been taken by the appellate Judge. The suit for alternate relief for partition and possession was decreed. During the pendency of the appeal before the lower appellate court, the plaintiff died and his widow Chinnawwa was brought on record and the present appeal has been preferred by Chinnawwa alone with her mother-in-law Neelawwa. During the pendency of this appeal Shettawwa died and her adopted son Kallappa was already on record.
5. Mr. Shirgurkar, learned counsel for the appellant relying on the decision of the Supreme Court in Guru-nath v. Kamalahai, : 1SCR1135 urged that Shettawwa on the death of Balappa had no power to adopt Kallappa as Balappa died interposing his son's widow Neelawwa. The contesting respondent is unrepresented. I therefore requested Shri M. S. Gopal to assist me in the case. His very useful assistance deserves to be appreciated.
6. The leading case on the question is that of Gurunath. Reviewing all the previous decisions Mahajan. C. J., in summing up the law has stated at para 14 as follows:--
'The result of these series of decisions is, that now for about three quarters of a century the rule that 'the power of a widow to adopt comes to an end by the interpretation of a grandson or the son's widow competent to adopt' has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several iudgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consist* ent with these principles.'
The learned Judge continued:
'In this situation we are bound to hold that it is too late in the day to sav that there are no limitations of any kind on the widow's power to adopt excepting those that limit the power of her husband to adopt, i. e., that she cannot adopt In the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widow powers of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widow's power to make an adoption comes to an end by the interposition of a grandson or the son's widow competent to continue the line by adoption.'
7. The facts giving rise to Guru-nath's case, : 1SCR1135 are a little different from those of the present case. In that case, one Krishtarao died in 1890. leaving him surviving two widows Radhabai and Gangabai and a son Dattatraya. Dattatraya died in 1913 leaving him surviving a widow Sundarabai and a son Jagannath. Sundarabai died shortly after Dattatraya while Jagannatha died in the year 1914. After an interval of about 30 years, it was alleged that Gangabai who survived both her son and grandson adopted Gurunath who instituted a suit on the allegations that he was the adopted son of Krishtarao, adopted to him by Gangabai, his junior widow, and as such, was entitled to the possession of his adoptive father's properties. The defendants in that suit who were the sons and grandsons of the first cousin of Krishtarao disputed the plaintiff's adoption on the ground that Gangabai's power to adopt was extinguished when Dattatraya died in 1913 leaving behind him widow Sundarabai and a son Jagannath who could continue the family line. The High Court of Bombay and the Supreme Court held that Gangabai's power to adopt came to am end at the time when her son died leaving son and a widow to continue the family line.
8. Both the courts below in the case before me, have held that the principles enunciated by the Supreme Court In Gurunath's case, : 1SCR1135 are not applicable to the present case as Gangappa pre-deceased his father Balappa and the power to adopt a son to Balappa by Shettawwa did not come to end. It was argued that the adoption depended on the theory of spiritual benefit and that it was only Shettawwa that could adopt a son to her deceased husband Balappa and that right cannot be deprived of by the interposition of Neelawwa who was not the widow of the last male holder.
9. I do not think that this argument could be accepted. Neelawwa is undoubtedly the widow of the son of Balappa. It matters little whether Gangappa died before or after the death of his father i. e., Balappa. Neelawwa was competent to adopt a son to her husband and continue the line. In such a case, it would be proper to hold that the power of the widow, that is, Shettawwa, to adopt a son to her husband comes to an end. Opinion to the contrary finds no support from any decision or authority.
10. The above view of mine is supported by the decision of the Full Bench of the erstwhile High Court of Hyderabad in Mukta Narahari v. Mukta Rajiah, AIR 1957 Hyd 1 and also a bench decision of the High Court of Madras in Venkatalakshmi Ammal v. Jagannathan. : AIR1963Mad316 .
11. The result, is, that the adoption of Kallappa must be held to be invalid and he has no right in the suit properties,
12. The appeal, therefore, is allowed; the judgments and decrees of the courts below are set aside; the plaintiff's suit for possession is decreed as prayed for, subject to the existing mortgage rights in favour of defendant No. 4. There will be no order as to costs in this court and in the courts below.