1. The question is as to the validity of the adoption in 1898 of the 1st defendant by the 2nd defendant on behalf of her husband who died in 1861. This was a second adoption, a prior adoption having been made in 1885 but the son then adopted died shortly afterwards. Both adoptions were made on the authority of the 2nd defendant's husband, together with the assent of some of his sapindas, on each occasion.
2. We have no hesitation in agreeing with the District Judge in finding that the 2nd defendant's husband did authorise his wife to adopt to him. The authority as proved by the witnesses was in general terms requiring her to adopt so as to continue his line and to provide for his spiritual benefit. He did not indicate any particular person for adoption either by name or otherwise and placed no restrictions whatever on his wife's discretion.
3. Such being the case, the first question is whether to authority so given was exhausted by the first adoption, or whether on the death of the son then adopted, the authority of the husband survived so as to enable the widow to make the present--that is, a second--adoption.
4. We are not aware of any judicial decision which would bind us to hold that the husband's authority in circumstances like the present is so completely worked out by the first adoption as to prevent the widow from acting upon it when necessity arises for a fresh adoption, the estate being still vested in her, and being liable to be divested by such adoption. We are of opinion that the husband's authority held good for the second adoption also. The object and purpose of the authority given by the husband was to perpetuate his family as well as to secure his spiritual benefit, and it would be unreasonable to hold that an accident such as the early death of the boy first adopted should be allowed to frustrate the fulfilment of his object and to preclude the widow from making another adoption in the absence of any legal impediment to her doing so. When the general intention of a Hindu to be represented by an adopted son is clear, as in this case, there seems no reason why effect should not be given to such intention, if it is possible to do so without contravening the law. Each case must be decided on its own merits, without applying too strict a rule of construction in regard to powers of this description.
5. We are supported in our view by the decision of Sir Thomas Strange in Veeraperumal Pillai v. Narain Pillai 1 Str. N.C. 78 where a widow was held entitled to adopt a boy in furtherance of her husband's general intention in lieu of another indicated by him but who was not available ; the same principle has been adopted by the Bombay High Court in Lakshmibai v. Ragoji I.L.R. 22 B. 996 where the boy who was indicated for adoption not being available, the adoption of another was upheld.
6. It would appear from the note 3 at page 14 of Morley's Digest that 'instances have occurred in which a widow has made a second adoption on the failure of the first by death in fulfilment of a single injunction or authority from her husband, the object of such injunction being unattained unless the child lives. ' Another instance of the husband's general intention being acted on by the widow without disapproval even where the. husband did not directly give authority for the adoption, is to be found in the case from this Presidency, Ramasami v. Venkatarama L.R. 6 IndAp 196, So that the practice of the community has been in accordance with our view of the law.
7. The Cases in Calcutta to which our attention has been drawn adopt what appears to us to be too artificial a rule of construction in that they practically disregard the question of intention in such cases.
8. We must, therefore, hold that the adoption in dispute in this case was valid, apart from the assent of the sapindas which was also relied on. In this view, it is not necessary for us to enter into a discussion as to the validity of that assent, but we may state that our conclusion is that that assent was not valid for several reasons, the most important of which is that it was too general in its nature ' any boy at any time ' and was not acted on for 9 years, during which circumstances, had materially changed, one of them being that two out of three assenting sapindas and two dissenting sapindas had died in the meantime.