1. This appeal arises from a suit brought by several of the members of a joint Hindu family for a declaration that an adoption of defendant-respondent 1, Piarey Lal by defendant-respondent 2, Mt. Champa Devi, widow of Durga Prasad, was invalid. Darga Prasad was, as is now admitted, a member of the joint Hindu family to which the plaintiffs belong, when he died in August 1921. A deed of authority to adopt a son was executed in favour of Mt. Champa Devi on 1st August 1921, and registered at the office of the Sub-Registrar on the same day. But it was claimed that at that time Durga Prasad was delirious and unconscious, and that the deed could not be considered to be legally valid. On the facts the lower Court has found that the deed was valid. But before considering this part of the case we propose to deal with the legal point that has been argued at some length before us, viz., that even if it be assumed that Durga Prasad gave authority to his widow to adopt a son, the power to adopt became extinguished on the death of Durga Prasad because his property vested in the plaintiff by survivorship.
2. For this proposition, which has been pressed very strongly by Sir Tej Bahadur Sapru on behalf of the appellants, no authority of this Court has been cited, nor does it appear that any case raising this particular question of law has ever come before this Court. If the proposition were to be accepted it would follow that a large proportion of the adoptions in this province must be held to be invalid. In the well-known case of Bhoobun Moyee Debia v. Ram Kishore Acharjee [1863-66] 10 M.I.A. 279 it has been laid down by their Lordships of the Privy Council that the estate of a deceased son vested in possession cannot be defeated and divested by the mere gift of power of adoption to a widow, and it has been sought to extend this principle and to argue that because Durga Prasad's share in the joint family property became vested at his death in the remaining members of the family the widow could not defeat or divest them. There are certain obvious objections to this argument, the first of which is that Durga Prasad was not the owner of a defined estate; he could only be said to be the owner of a fluctuating interest in the joint family property, and it does not therefore appear to be accurate to say that on his death his estate vested in the surviving members. The number of sharers in the joint family property became diminished by one on his death, and the number of cosharers would be increased by one if the adopted son be held to be validly adopted. But that is not the same thing as to say that the estate of Durga Prasad which never had any separate existence, became vested in the other members of his family. Sir Tej Bahadur Sapru claims that the authority of the Bombay High Court is in favour of his argument, and he has quoted the cases of Bhimabai Krishnappa v. Tayappa Murarao  37 Bom. 598, and of Adiveva Fakirgowda v. Chanmallgowda Ramangowda A.I.R. 1924 Bom. 393. Both these cases, however, refer to vatan property and not to joint family property under the Mitakshara law.
3. It was held that on the death of the last male owner the property vested immediately in his heirs, and could not be subsequently divested by an adoption made by his mother. In the case of Madana Mohana Ananga v. Purushothama Ananga  38 Mad. 1105, (the decision of which is clearly against the present appellants) the learned Chief Justice refers to a previous opinion of his own expressed in the case of Sinnachami v. Ramaswamy Chettiar  22 M.L.J. 85, to the effect that there is no authority to show that the principle of the decision in Bhoobun Moyee's case does not apply in the case of a joint family, and this has been quoted in favour of the appellants in the present suit; but the Madras case was concerned with an impartible estate, in which the succession was not by survivorship but by inheritance, and the circumstances of taking in adoption would, therefore, be entirely different from those of a family in which succession is by survivorship. In the case of Chandra v. Gojarabai  14 Bom. 463 there is no real analogy to the present case, because Nana as the last surviving member of a joint Hindu family had become the full owner of the property and his widow could not be divested by the adoption of a son by his brother's widow. Finally some reliance has been placed on certain sentences in Mayne's Hindu Law, 9th edn., p. 153. It is there remarked that although the distinction between the cases of vesting by inheritance and by survivorship had been the basis of a number of decisions in India, it may be doubted whether this distinction can still be maintained in view of the recent decisions of the Privy Council. The conclusion of the commentator, however, is that the only question hereafter will be whether or not the power has become extinguished by reason of circumstances which have arisen since the grant of power to adopt. If the authority is alive the question of the vesting of an estate whether by inheritance or by survivorship is immaterial.
4. None of the cases quoted by Sir Tej Bahadur provide us with sufficient authority for giving what would in these provinces be considered a somewhat revolutionary pronouncement, and we should not be disposed to do so even if there were no decisions on the other side. Before referring briefly to one or two of these decisions, however, we may remark that the commentators agree in holding that a widow in a joint Hindu family may adopt a son if she has authority from her husband. On pp. 152 and 153 of Mayne's Hindu law (9th edn.) the author remarks:
The vesting of estate in an undivided brother or the son of such brother does not terminate the power of adoption.... A widow's power of adoption was held to be extinguished for ever as soon as the estate is vested by inheritance in an heir.... Where however the husband to whom the adoption is made was a member of an undivided family and on his death his share devolved by survivorship on the surviving member or members other than a son the power would be alive and would continue to be alive until the last surviving member died and the estate vested by inheritance in the next heir.
5. It is after this passage that the one on which the appellants have relied occurs. But as we have pointed out the whole of the passage taken together by no means conveys the meaning that the appellants would have us give to it. In Sarkar's Hindu Law of Adoption, 2nd edn., the matter is discussed at some length. On p. 252 the learned author remarks:
The joint family being the normal condition of the Hindus the adoption by widows of its members with the deceased husband's assent presents some difficulty; for the undivided interest of the deceased husband pauses from the moment of his death to the surviving male members of the family, and an adoption by his widow of a son to him by his assent alone has the effect of divesting his estate from his coparceners in whom it was already vested; in fact it has the effect of an alienation of the undivided co-parcenary interest in favour of an adopted son, who may be a perfect stranger, without the concurrence of the other members of the family.... But however anomalous an adoption by a widow with her deceased husband's assent may be it is now recognized in all the minor schools of Mitakshara... Therefore it would appear that so long as the whole family or that branch of the family to which the widow's husband belonged remains joint there is no bar to the widow's exercising the power of adoption given by her husband.
6. We have already referred to the case reported in Madana Mohan Ananga v. Purushothama Ananga  38 Mad. 1105, in which the remarks of Seshagiri Ayyar, J., are entirely antagonistic to the contention of the appellants in the present case. Other cases which have been referred to and which favour the respondents are those of Venkatramier v. Gopalan : (1918)35MLJ698 and Bachoo Hurkisondas v. Mankorebai  31 Bom. 373. This last case is of special importance in view of the fact that the appellant's learned Counsel claimed the authority of the Bombay High Court as supporting him. He would distinguish that case from the present one on the ground that it is not a genuine case of a joint family property. In this we are unable to agree, but at any rate it is not a case that can be quoted in the appellants' favour. In the case of Pratapsingh Shivsingh v. Shri Agarsingji Rajasangji A.I.R. 1918 P.C. 192, their Lordships of the Privy Council have held that unless there is a time limit imposed by the authority which empowers a Hindu widow to adopt, or she is directed to adopt promptly she may make the adoption so long as the power is not extinguished or exhausted. Her right to make an adoption is not dependent on her inheriting as a Hindu female owner her husband's estate. She can exercise the power even though the property is not vested in her. What circumstance was there in the present case which exhausted the power of Durga Prasad's widow to adopt a son. The only reply to this question on behalf of the appellant is that it was the death of Durga Prasad and the vesting of his estate in the joint family. It certainly cannot have been the intention of Durga Prasad that his death should exhaust his widow's power to adopt. On the contrary, it is only on his death that the authority is to be exercised. If any fresh inference is to be drawn from the latest rulings of the Privy Council it is this, that even if the estate of Durga Prasad did vest in the remaining members of the joint family, that circumstance in itself would not be sufficient to invalidate an adoption by the widow. It may be remarked that in Bhoobun Moyee's case their Lordships were guided by other considerations be sides the fact that the estate had vested in a third person, and one of those considerations was that the natural son of the adopting widow had grown to man's estate and had been in a position to perform all those duties which an adopted son would have been called upon to perform, and the inference might well be that the power of adoption which it had been intended to confer on the widow had been exhausted. There is no such circumstance here, and on a general review of the authorities and of the opinions of the commentators we are satisfied that where a member of a joint Hindu family has been proved to have given his widow power to adopt, that authority is not automatically exhausted by his death.
7. In regard to the facts, very little has been said in argument to induce us to believe that the decision of the lower Court is incorrect. Durga Prasad died prematurely at the age of about 25 or 26, and it is certain that he had for many years been an invalid. He was married at the age of about 16, and one son was born who died in infancy. His own people were residents of Mansurpur and his wife's people lived in Nethla, Hasanpur. Towards the end of June 1921 Durga Prasad was seriously ill. The complaint that he was said by most of the witnesses to have been suffering from was bleeding piles and indigestion. He was persuaded by his wife to go for treatment to Nethla Hasanpur, where he was when he executed the deed of authority to adopt on 1st August. On the same day he executed a will which was also registered. This will has been produced in evidence, though it is not of direct importance in the case. It does appear, however, that it must have been propounded in the mutation proceedings, for, on the death of Durga. Prasad, the patwari reported that Durga Prasad's widow and mother were both entitled to mutation, while the order of the Subdivisional Officer (Ex. A dated 23rd December 1921) shows that the name of Mt. Champa Devi, the widow alone was recorded on the basis of the will, and that a notice had been sent to the mother, Mt. Har Devi, and that she raised no objection.
8. In the plaint it is stated that the plaintiffs allowed Mt. Champa Devi's name to be recorded for consolation, &c.;, because she was of tender age. But it is clear that if the plaintiffs and Mt. Har Devi had been alert they must have known that a will had been put forward, and if there was really any truth in the story of Durga Prasad having been unconscious and delirious and incapable of executing a deed of authority to adopt he must also have been unfit to execute a will, and objection would almost certainly have been taken in the mutation proceedings. Ganga Sahai the brother of the widow attested both deeds of the 1st August and two other attesting witnesses came forward to prove the deeds and also the fact that Ram Chandra, one of the attesting witnesses, and the scribe were both dead. The signature of Durga Prasad on the deeds is in Urdu and is written in a firm hand; there is nothing on the face of the deed to suggest that the executant was in a particularly weak state of health. The plaintiffs stated in their plaint that Ganga Sahai had obtained the ijazatnama in favour of his sister
by taking false and fictitious proceedings and Shaving practised fraud on the Sub-Registrar of Bulandshahr or having influenced him in some other way, presented the ijazatnama aforesaid before him on behalf of Durga Prasad and got it registered.
9. All that Hira Lal could state in evidence, however, was that Durga Prasad was of weak intellect and that a few days after 1st August (8th or 9th of Sawan) Durga Prasad was unconscious and was taken back to Mansurpur from Nethla Hasanpur and died 8 or 9 days thereafter. The suggestion that the deed was obtained from Durga Prasad in any irregular way is, therefore, a pure conjecture based on the fact that Durga Prasad was in a critical state of health. Mt. Har Devi has also stated that she went to Nethla Hasanpur and saw Durga Prasad there and that he was unconscious and could not speak. The exact date to which these witnesses allude is not very clear, and indeed as they are speaking to events four years' old it is very unlikely that they should have remembered it. Three other witnesses appearing for the plaintiffs have stated that they saw Durga Prasad when he was unconscious. They also are not in the least clear as to the date, or even in some cases as to the identity of Durga Prasad, and they make it appear that Durga Prasad was being taken about in a carriage to considerable distances in an unconscious state.
10. We agree with the learned Subordinate Judge that their statements are worthless in the face of the clear evidence of the witnesses to the deeds. These witnesses say that although Durga Prasad had been suffering from piles he was in full possession of his faculties and had no fever, and Durga Prasad's signature on the documents corroborates these statements. Some stress has been laid on the statement of one witness, Hashmat Ali, who was produced on behalf of the defendant. The hakim who was attending Durga Prasad at Nethla Hasanpur having died, Hashmat Ali who is his grandson was produced to prove the condition of Durga Prasad, but he apparently did not make the statement that he was expected to. He said that Durga Prasad had fever and delirium, that he was unconscious and that the witness cured him. Babu Mohan Lal, a vakil appearing for the defendants, went into witness-box and gave evidence to the fact that Hashmat Ali had made a very different statement to him as he said that Durga Prasad had no fever and was in his right senses although he was suffering from bleeding piles.
11. It has been suggested that it was most unprofessional for Babu Mohan Lal to go into the witness-box, but if the witness went back on the statement that he had made to him in such a barefaced manner it seems to us that Babu Mohan Lal was justified in giving up his brief and appearing as a witness to contradict what he believed to be a falsehood. It was in fact his duty to his client to do so. In any case we do not believe the statement of Hashmat Ali to be worth much but as he says that he cured the patient it is not shown even by his statement that Durga Prasad was unconscious or delirious at the time when he executed these deeds. In short the plaintiff's case appears to be based entirely on conjecture and has been bolstered up by false or exaggerated evidence. We agree with the lower Court that the execution of the deed of authority to adopt is clearly proved, and it follows, therefore, that the adoption of Piarey Lal was a perfectly valid one and the plaintiffs' suit was rightly dismissed. We dismiss the appeal with costs.