1. This is an appeal from the judgment of the District Judge of Bellary declaring the alleged adoption of the second defendant by the 1st defendant invalid. The husband of the 1st defendant who died on the 15th September 1910 executed a will Ex. A in which he said 'I have kept my moveable and immoveable properties under her (meaning his mother's) control. In future also they should be only under her control. My wife Basamma is now a young girl of 15 years of age. She should be under the control and guardianship of my mother Rudramma. I have given permission to the said Basamma to receive in adoption for me either Gavappa or Lingappa, minor sons of my junior paternal uncle Sindigi Rudrappa, whomsoever (of them) may be chosen by mother.' He died afterwards and there were disputes between the minor widow and her mother-in-law Rudramma and a petition was put in the District Court to remove Rudramma from the guardianship and appoint someone else. An Order to that effect was made on the 4th February 1911. Up. to that time Rudramma and Basamma had been at enmity. What-we find 'is then that, within two days of this order, an adoption not of one of the boys mentioned in the will but of another boy altogether was arranged and carried out by Rudramma, and Basamma in conjunction with Basamma's father and the 3rd defendant. The evidence is that the 3rd defendant paid to the widow's father Marreppa Rs. 22,000 on account of the widow to induce her to take his brother, the 2nd defendant in adoption. There is also evidence that a sum of Rs. 6,000 was paid to Rudrappa, the father of the boys mentioned in the will for executing a document Ex. II in which he expressed his refusal to give his sons in adoption. According to the evidence for the plaintiffs this sum was paid by the father Marreppa out of the Rs. 22,000 which had been paid him by the 3rd defendant on account of the widow. There is also evidence for the plaintiffs that when Rs. 6,000 was taken for that purpose jewels worth Rs. 6,000 belonging to Rudramma were pledged with Marreppa on behalf of the widow. There is some discrepancy in the evidence as to the exact time at which the sum of Rs. 6000 was paid, but Rudrappa has not been called to contradict the evidence that he was paid a certain sum and the evidence in the case points to his consent having been obtained in that way, Ex. II purports to have been executed on the 4th of February 1911. Exhibit I which is the deed of adoption refers to it as having been executed on the 4th and the oral evidence is that it was executed on the 6th after the adoption. There is no evidence in the case that any attempt really was made to get the consent of Rudrappa to the adoption. The evidence so far as it goes is that every endeavour was made to induce him not to give his sons. The 1st defendant, the widow says that she never asked him for his consent to the adoption and there is no evidence that anybody else ever asked him and hence the recital in Exhibit II is not proved. In this state of things we are clearly of opinion that the alleged adoption cannot stand.
2. An argument was addressed to us on the somewhat difficult question whether assuming that the widow was unable to adopt the boys mentioned in the will because their father would not give there in adoption, it was open to her to adopt another son in pursuance of the alleged presumed intention to be deduced from the will. It had been held in this Court and by the Privy Council in Suryanarayana v. Venkataramana I.L.R. (1906) M. 382 that where there is a general authority to adopt and the adopted boy dies, the widow is authorised under the general power to adopt another son in his place. Where the will gave power to adopt a particular boy, and that boy died and the widow adopted another boy in his place there was a difference of opinion in this Court in Chenga Reddy v. Vasudeva Reddy (1915) 29 M.L.J. 144 as to whether the authority to make the second adoption could be implied in the circumstances. In that case Sankaran Nair, J. relied in a passage in West and Buhler which had been cited with approval by Farran, C.J. in Lakshmi Bai v. Rajaji I.L.R. (1898) B. 996 and was of opinion that such authority might be implied. Oldfield, J. was of the contrary opinion. We do not think it necessary to decide the point in this case. What is laid down by their Lordships in Surynarayana v. Venkataramana I.L.R. (1906) M. 382 is that any instruction the husband might have given to his widow must be strictly followed. In the present case there was really no attempt to follow the instructions of the husband but every effort was made to avoid conforming to those instructions and we are clearly of opinion that on this ground the adoption is bad.
3. Then another point was taken. It was said that the widow was really prevented from adopting ones of the boys mentioned in the will because they were the younger brothers of the deceased who had himself been adopted. No such point was taken in the written statement. All that it said was that Rudrappa feared that the adoption might be against Hindu Law and there is no evidence to support that allegation. Mr. Ramesam for the respondent has contended that even in cases of Brahmins there is no prohibition against the adoption of a younger brother into another family. Whether that be so or not, we must decline to go into this question.
4. It appears from the passage in Minakshi v. Ramanadha I.L.R. (1888) M. 85 that adoptions of this sort are not unusual among Brahmins and in. a case in which we are about to give judgment we find amongst Sudras also an adoption of this sort, which was questioned and disallowed not on this ground but on the ground that at the time the boy was given in adoption he was an orphan. In these circumstances, we think that if it were intended to raise the question, it should have been specifically raised in the pleadings so that an issue might have been taken upon it and the plaintiffs might have had an opportunity of showing that such adoptions are permissible according to the custom of the community to which they belonged, a thing which it is quite possible that they would have been able to prove having regard to the fact that the will was prepared by a well-known vakil and was attested by members of their community who must be presumed to have known if there was anything in it which was opposed to the usages which govern the community. The case which has been cited to us Lala Rup Narain v. Gopal Devi I.L.R. (1909) C. 780 shows that in these circumstances, we should be wrong in allowing questions of this sort to be raised at this stage. It was also attempted to be argued that these persons were inhabitants of Bombay where no authority to adopt is required but no such point was raised here or in the Court below and we decline to go into it in this appeal.
5. In the result the appeal fails and is dismissed with costs payable by the 2nd appellant.