W. Comer Petheram, C.J. and Straight, J.
1. But it is said for the respondent, even if this be so, that is something short of proof of an adoption to Kishen Lal. We do not feel pressed by this contention; if there was an adoption, in fact, we think it must be taken that it was an ordinary adoption to her deceased husband. It is true that the powers of a Jain widow in the matter of adoption are of an exceptional character, namely, that she can make an adoption without the permission of her husband or the consent of his heirs, and that the may adopt a daughter's son; and further, that no ceremonies or forms are necessary. But, except that in these respects it is not controlled by the Hindu law of adoption, we think that in all others its principles and rules are applicable, and that the Kritima form of adoption not being recognised in the Jain community, or among the Hindus of these Provinces, it must, be assumed that she had the power to make a second adoption, and that such adoption was to her husband.
2. The only remaining question of law is, whether the defendant having once adopted Nemi Chand after the death of her husband, and the whole estate having vested in him, she had the power to make a second valid adoption to her husband, so as to divest herself a second time of the property, and to vest it in the second adopted son.
3. It is contended on behalf of the defendant that upon the death of Nemi Chand, the estate of Kishen Lal vested in her as his heir, and not as the heiress of her deceased husband, and that it could not afterwards be divested so as to vest in another person as a second adopted son of her husband. This, however, does not seem to be the case, as the effect of the second adoption being to make the second adopted son the son of her husband, he must be treated as if he had been born, or at all events conceived, in the lifetime of the husband, and his title relates back to the date of the death of the elder brother, the first adopted son so that if the elder brother has left no widow or child who would succeed him to the exclusion of his younger brother, a second adopted son succeeds as heir to the father.
4. This view seems to us to be the reasonable and necessary consequence of the fiction that the widow, by adoption, makes the adopted son the son of the deceased husband, and it appears to be in accordance with that taken by the Privy Council in the case of Sheo Singh Rai v. Dakho I.L.R. 1 All. 688 : L.R. 5 Ind. Ap. 87 and with the statement of the customs of the Jains as declared by Seth Raghunath Das and the other lay witnesses for the plaintiff. It is trua there is a difference of opinion on the question of the custom among the expert witnesses, but in our opinion that of the lay witnesses is of infinitively more value on this point; and for these reasons we think that the defendant had power to make a valid adoption to her husband a second time, and that the adoption of the plaintiff was valid and effective.