1. This reference which was argued before the long vacation raises a question of considerable difficulty which has given rise to much difference; of opinion. On the one hand we have the judgment of Davies and Bhashyam Iyengar, JJ., in Sreeramulu v. Krishnamma I.L.R. (1902) M. 148 which is supported by Sadasiva Aiyar, J. in the order of reference. On the other hand we have the current of Bombay decisions ending with Ramakrishna v. Tripura Bai with which Spencer, J., agrees.
2. With reference to the decisions of the Privy Council which have been cited on either side, I may say at once that I do not consider Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 M.I.A. 169 and Moniram Kolita v. Kerrikolitany as of any assistance because the point now in question did not in any way arise for consideration by their Lordships and was not considered by them. As regards the first case it had been held by the Bengal Sudder Dewani Adawlat in Ranee Krishnamonee v. Rcbjah Oodwunt Singh (1824) 3 S.D. Ad. Rep. 228 that an alienation for necessary purposes made by a widow before adoption could not be questioned by the adopted son. This was all that was decided and that the head-note seems to go far beyond the decision. The judgment no doubt proceeded on the view that the alienation would not have been binding at all upon the adopted son, if it had not been for a necessary purpose, but the point really did not arise. In the course of this case a pundit expressed the somewhat extravagant opinion that a widow who had a power of adoption but had not yet exercised it was in the position of a femme enciente, and more than twenty years later the right of such a widow to the possession and enjoyment of the estate left by her husband was questioned on the strength of this opinion in Bamundoss Mooherjea v. Mussamut Tarinee (1858) 7 M.I.A. 169. The Sudder Dewani in 1850 overruled this contention in an elaborate judgment, which is set out at page 177 etc., of Moores report, in which they pointed out that the decision in Ranee Krishnamonee v. Rajah Oodwant Singh : I.L.R. 5 C. 776.was no authority for such a proposition and observed, it seems to me, obiter, ' In that case the son who was adopted became the undoubted heir; and it was of course the correct doctrine that no sale by a widow who possesses only a very restricted life interest in the estate, could have been good against any ultimate heir, whether an adopted son or otherwise, unless made under circumstances of strict necessity.'
3. Though their Lordships expressed their agreement with the principles laid down in the judgment of the Sudder Court and their entire concurrence in it, it seems to me to be going too far to regard them as having adopted as their own the obiter dictum of the Sudder Court on a question which did not arise. More weight attaches to the observation of their Lordships in the well-known case in The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 that ' the rights of an adopted son are not prejudiced by any unauthorized alienation by the widow which precedes the adoption,' but this observation again was purely obiter. On the other hand I am unable to agree with Bhashyam Iyengar, J. in regarding the observation of their Lordships in Moniram Kolita v. Kerrikolitany (188O) L.R. 7 IndAp 115 : I.L.R. 5C 776 as direct authority the other way. In considering the question whether the well-known texts about the widow keeping unsullied the bed of her lord required them to hold that her estate was forfeited by an act of unchastity committed after succession to the estate, their Lordships observed that, if it were so held, a purchaser or mortgagee from her would lose his estate in consequence of an act of unchastity committed by her prior to the sale or mortgage. The implication that in such a state of the law mortgages and alienations made by the widow before the act of unchastity would remain unaffected appears somewhat far-fetched, even if it be assumed for the moment that the same considerations would be applicable in the case of adoption as in the case of unchastity.
4. The more recent decision of their Lordships in Bonomali Roy v. Jagat Chandra Bhowmic (1904) L.R. 32 IndAp 80 : I.L.R. 32 C. 669, is, however, much more in point. The alienation in that case was said to have been made in 1837 by the widow's mother-in-law acting on her behalf. The widow subsequently in 1846 adopted a son who attained majority in 1856. The widow having died in 1894 the adopted son's representative sued for possession in 1897. The present contention that an alienation by a widow enures for her life-time and is not divested by a subsequent adoption does not appear to have been raised for the plaintiff, the argument being that under the dispositions of the original owner the mother-in-law had the power to alienate the property for the term of the widow's life. Their Lordships however appear to have held expressly that the adopted boy's cause of action for the recovery of the alienated property arose on the date of his adoption, and that time began to run against him in 1856 on his attaining majority, and that the suit became barred in 12 years under Regulation II of 1803 and Act XIV of 1859.
5. This decision which is in accordance with the decisions of the Bombay Court and in accordance with their Lordships' dictum in The Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 is later than the decision of this Court in Sreeramulu v. Kristnamma I.L.R. (1902) M. 143, and, so long as it stands unexplained, I feel bound to follow it.
6. At the same time I feel considerable reluctance in differing from the judgment of Bhashyam Iyengar, J., in Sreeramulu v. Krishnammd I.L.R. (1902) M. 143, and the opinion of Sadasiva Aiyar, J. one of the referring Judges, because I think there is much to be said for the view taken by them that in the present state of the Hindu Law a Hindu widow, who, it is now well-settled, has full powers of disposition over the income and accumulations of her widow's estate, should not be permitted, when in the exercise of such powers of disposition she has alienated for consideration her interest in whole or in part, to abridge the interest which she has parted with and derogate from her own grant by the subsequent exercise of a power of adoption which she is under no legal duty to exercise. It is well settled that a widow who has been authorised to adopt is at full liberty to adopt or not as she pleases and cannot be compelled by law to do so. Whether she is under a moral duty to adopt seems to me to be a matter for her own conscience, especially in these days when it is certainly open to question whether the old views as to the religious necessity of adoption to a sonless man are so universally strongly held and whether the temporal inconveniences attending it are not more fully realised. Moreover, to hold that the adopted son takes subject to the widow's prior alienations for the duration of her life would not interfere with the exercise of her powers of adoption unless the alienations were so considerable as to deter the boy's parents from giving him in adoption, and this I think is a consideration which should be regarded by the widow at the time of the alienation.
7. It has been held by this Court in Subbamma v. Subrahmanyam (1915) 30 M.L.J. 260 that a widow cannot by surrendering her interest in the estate to the next reversioner deprive prior alienees for consideration from her of their right to enjoy the alienated property during her life-time, and I think there is much to be said for applying the same rule to adoptions. I do not pursue the question further, because in the present state of the authorities and especially in deference to the dictum in The Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 and the decision in Bonomali Roy v. Jagat Chandra Bhowmick I.L.R. (1904) C 669 I feel bound to answer the reference in the affirmative.
8. The question referred is whether a son, adopted by a Hindu widow under her husband's authority, can during her life-time recover property alienated by her for no necessary purpose before the adoption was made. In answering it in the affirmative, I confine myself to what, with all respect, seems to me only safe ground of decision in such cases, the current of judicial authority. For of the other grounds relied on, it is not clear on which side the weight of the argument from inconvenience would preponderate, if the uncertainty of the law authorised its consideration : and it is useless to recur to the very general wording of ancient texts, which have been dealt with frequently by the Courts.
9. It will facilitate the application of the authorities and define the issue before us, if the first citation is from the decision of this Court, which has occasioned the reference and from which we are asked to dissent, Sreeramulu v. Krishnamma I.L.R. (1902) 143 Its foundation, as I understand it, is the statement that 'a Hindu widow has an absolute right to the fullest beneficial interest in her husband's property for her life and that she has a personal interest therein, which she can exercise at her will and pleasure by giving or transferring the estate to another for her own life or, speaking more accurately, for the term of her widowhood ': and no doubt this statement gives with sufficient accuracy the general effect of the nine cases and of Act XV of 1856, which are referred to as supporting it. But it is useless, as justified by them, for the present purpose, because they relate only to cases of the widow's death or re-marriage, in which her widowhood and her estate ended together and the distinction between the duration of the one and the other would not have affected the determination of the estate she had conveyed. It is otherwise, when the making of an adoption is in question. For there is no dispute but that it terminates the widow's estate, although her Widowhood continues. Dhurm Das Pandey v. Musamat Shama Soondri Debiah (1843) 3 M.I. 229. If therefore the distinction proposed is valid; if, that is, the widow's power is correctly defined as being to dispose only of a widow's estate subject to all its legal incidents, not of an estate for the term of her widowhood, the authorities referred to, are inconclusive and the statement of law founded on them must be rejected for the present purpose.
10. This distinction and the first of these views can in my opinion be sufficiently supported by reference to the principle enunciated in general terms in Dhurm Das Pandey v. Mussamat Shama Soondari Debiah (1843) 3 M.I.A. 242 For in view of those terms I cannot follow the suggestions that the widow can by unnecessary alienations diminish even temporarily the estate, which the son inherits at once on his adoption, and that the making of an adoption is to be excluded from the contingencies, which, like the widow's death or remarriage, her alienee must face as determining his rights, if necessity for the alienation cannot be proved. Before however turning to the arguments, by which those suggestions are supported and they are in fact identical with those employed in Sreeramulu v. Krishnamma I.L.R. (1902) M. 143. I deal with the decisions, which favour the contrary conclusion.
11. It is not worth while to consider in detail those, which deal with the widow's powers generally and without reference to the effect of an adoption on their exercise, because, although some of them refer explicitly to her alienations as of a widow's estate, others refer to them as of an estate for her widowhood: and, as already observed, the maintenance of the distinction between these descriptions would have had no effect on the conclusion. There are however three cases in which an adoption was in question; and they are in my opinion decisive in favour of the adopted son's immediate right to recover from the alienee. In Bamundoss Mookerjee v. Mupssamut Tarinee (1858) 7 M.I.A. 169 the Privy Council adopted comprehensively the judgment of the Sudder Dewani Adalat under appeal before it, endorsing the following reference to another case, Ranee Kishenmunee v. Rajah Oodwunt Singh (1824) 3 S.D.A. Rep. 228: 'The point was whether a retrospective right could be claimed by a son, after he had been adopted, so as to bar a sale made by his adoptive mother previous to his adoption to the injury of his rights, at that time contingent and eventual, but which actually accrued to him upon his adoption. In that case the son, when adopted, became the undoubted heir; and it was of course the correct doctrine that no sale made by the widow, who possesses only a very restricted life interest, could hold good against any ultimate heir, whether an adopted son or otherwise unless under circumstances of strict necessity.' This recognition of the adopted son's right was, though the fact is not expressly referred to in Bamundoss Mookerjee v. Mussamat Tarinee (1858) 7 M.I.A. 169. accorded, as reference to the Sudder Dewani Adalat Report shows, in a suit instituted during the life-time of the widow. Next there is a similar statement of the law in Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) 12 M I.A 897 made explicitly in the judgment of the Privy Council, though no doubt merely obiter. These two authorities are of course only indirect, the first being important mainly as evidence of an early recognition of the principle it involves. But to the remaining case, Bonomali Roy v. Jagat Chandra Bhowmick I.L.R. (1904) C. 669 no such objection is available, since the question dealt with in the judgment of the Privy Council was whether the suit brought by a person claiming under the adopted son was in time and it was held that, if the latter had a cause of action, it arose on the date of his adoption. The fact that the law of limitation then in force was Act XIV of 1859 is no ground of distinction from the present case, since the question was of the starting point for, not the period of, limitation; and, since a reversioner's cause of action arose under the earlier Act, as it does now, on the widow's death, the distinction in favour of the adopted son is marked clearly. Sambasiva v. Raghava I.L.R. (1889) M. 512 and in review, 1 M.L.J. 392. These decisions of the Privy Council are accordingly irreconcileable with Sreeramulu v. Krishnamma. It must be added that the last mentioned case has been dissented from by the only other High Court, which has considered it, Ramakrishna v. Tripura Bai I.L.R. (1908) B. 88.
12. It remains to deal shortly with the other considerations, by which the decision in Sreeramulu v. Krishnamma I.L.R. (1902) M. 143 has been supported. They include first an argument from the explanation given in Lakshman Rau v. Lakshmi Ammal I.L.R. (1881) M. 160 of the decision in Bamundoss Mookerjee v. Mussamat Tarinee (1858) 7 M.I.A. 169 already referred to, in which it seems to me (with all respect) that the connection in which that explanation was given is overlooked. The Court was dealing with a point very similar to the main point dealt with in the earlier case, the effect on the widow's power of alienation of her possession of an authority to adopt; and it therefore had no occasion, especially as it held that the alienation in question before it was made for a necessary purpose, to define an adopted son's rights, to decide the date from which he could assert them or to consider the portion of the judgment extracted above, in which Ranee Krishnamonee v. Rajah Oodwunt Singh (1823) 3 S.D.A. 228 is referred to. The reference, which follows in Sreeramutu v. Kristnamma I.L.R. (1902) M 143 to the decision in Ganapathi Aiyar v. Snvitriammal I.L.R. (1897) M. 10 appears to disregard the fact that no alienation by the widow was in question in the latter case, her action, as the court found, consisting only in the creation of documentary evidence of the oral devise by her husband, under which the alienee claimed; and therefore nothing at present material was decided. Next an extract from the judgment in Moniram v. Kerrykolitany (1880) L.R. 7 I.A. 115 : is relied on as showing that the validity of a widow's alienation can be affected only by her conduct prior to it and not, it is to be inferred, by her subsequently making an adoption; but the dictum in question, which no doubt actually mentions only prior conduct, is not statedly applicable to it alone and occurs in the course of a hypothetical argument from inconvenience, in connection with which any conclusion ex silentio would be unsafe. Lastly it is argued that Article 125, Schedule II of the Limitation Act, 1908 impliedly postpones the right to recover possession from a widow's alienee until after her death or remarriage. The answer is firstly that substantive rights under Hindu Law cannot be regarded as curtailed by mere implication from a provision relating to procedure; and secondly that an adopted son is not and has not been shown to be on the same footing as a reversioner and that his suit for possession will be covered by Article 144.
13. The arguments, by which the conclusion in Sreeramulu v. Krishnamma I.L.R. (1902) M 143 is supported, failing, I would dissent from the decision in that case and answer the question referred in the affirmative.
Kumaraswami Sastri, J.
14. The question referred to us for decision is whether an adopted son who has been adopted by a widow acting under the authority of her husband can during the widow's life-time set aside alienations made not for necessary purposes before he was adopted and recover the property so alienated.
15. It has now been well settled that an adopted son has all the rights of a natural son in his adoptive father's estate. He acquires by right of adoption an interest in his adoptive father's ancestral property and the same right to question his alienations as the aurasa son. He succeeds to collaterals of his adoptive father and holds the same position as the natural son unless his right has been specially curtailed by express texts.
16. When a widow adopts a son under authority from her husband the son adopted succeeds to the estate of his adoptive father by right of inheritance just in the same way as the natural born (aurasa) son. The estate which the widow had between the date of her husband's death and the date of the adoption is at once divested and becomes vested in him not as succeeding to the widow making the adoption but to the deceased person in pursuance of whose authority the adoption was made. Though his rights arise only from the date of his adoption they are paramount to those of the widow who is at once relegated to the position of a female member of the family entitled only to maintenance and residence in the family house. The position of such an adopted son is clearly and accurately set out by Farran, J. in Moro Narayan Joshi v. Balaji Baghunath, I.L.R. (1891) B. 809 where he observes as follows: 'Now an adopted son claims from and through his adoptive father. His adoption however does not relate back to the death of his adoptive father Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 M.I.A. 169. He comes in bound by such acts of the widow as would bind the natural heirs of the husband after her and entitled to set aside (in the absence at all events of stipulations to the contrary) such unuthorised alienation of the widow as they succeeding upon her death would be entitled to set aside. The only difference between him and other full-heirs of the husband for the purpose I am considering seems to be that his rights spring into existence the moment of his adoption and displace the rights of the widow while the rights of other reversioners await the determination of the widow's estate by her death.'
17. In Ranee Krishnamonee v. Rajah Oodwunt Singh (1824) 3 MS.D.A. 228 it was held that a sale made by a widow to the prejudice of her late husband's property before the adoption made by her under authority given by her husband will not be valid as against the adopted son unless made under circumstances of necessity and that he was entitled to possession. This case was referred to by the Calcutta Sudder Court in Bamundoss Mookerjee v. Mussumat Tarinee (1858) 7 M.I.A. 169 which was affirmed by the Privy Council, Bamundoss Mookerjee and Mussumut Raj v. Mussumut Tarinee (1858) 7 M.I.A. 169 Referring to Rani Kishunmonee's case (1823) 3 S.D.A.R. 228 the Judge of the Sudder Court observed as follows; 'The point in that suit was whether a retrospective right could be claimed by a son after he had been adopted so as to bar a sale made by his adoptive mother previous to his adoption to the injury of the rights at that time contingent and eventual but which actually accrued to him upon his adoption. In that case the son when adopted became the undoubted heir, and it was of course the correct doctrine that no sale made by a widow who possesses only a very restricted life interest in the estate would have been good against any ultimate heir whether an adopted son or otherwise unless made under circumstances of strict necessity'. Their Lordships of the Privy Council simply confirmed the judgment of the Sudder Court with the remark that they entirely agreed in the principles laid down in the judgment which was in their opinion most able and elaborate, Bamundoss Mookerjee v. Musst. Tarinee (1858) 7 M.I.A. 206. In The Collector of Madura v. Muthu Ramalinga Setupati (1838) 12 M.I.A. 397 their Lordships distinctly lay down that the rights of an adopted son are not prejudiced by any unauthorised alienation by the widow which precedes the adoption.
18. In Lakshmana Rau v. Lakshmi Ammal I.L.R. (1881) M. 160 the decision of the Privy Council above referred to was considered and it was held the decision established that during the period of her husband's death and the adoption, only such acts as are authorised and would be effective against reversioners, would bind the sons taken in adoption and that acts in excess of her powers under Hindu Law may be challenged by the adopted son.
19. The decision of the Privy Council, Bamundoss Mooherjee v. Mussamut Tarinee (1858) 7 M.I.A. 169 was also considered by the Bombay High Court in Nathaji Krishnaji v. Hari Jogoji I.L.R. (1881) M. 160 where relying on the authority of the case, the Court upheld the right of the adopted son to set aside unauthorised alienation made by a Hindu widow between the date of her husband's death and the adoption made in pursuance of authority given by him. So far as the Bombay High Court is concerned a series of well-considered decisions clearly establish the adopted son's right to recover immediate possession. I need only refer to Lakshman v. Radhabai I.L.R. (1887) B. 609, Narayan Joshi v. Balaji Raghunath I.L.R. (1894) B. 809 and Ramakrishna v. Tripura Bai I.L.R. (1908) B. 88.
20. Though the rights of the adopted son commence only from the date of his adoption it is undoubted law that he divests the estate of the widow making the adoption and her co-widows and the interest (wholly or partially) of all persons in possession of the property of his adoptive father to whom he would have a preferential title if he had been in existence as adopted son at his adoptive father's death. In Dhurm Das Pandey v. Mussammut Shama Soondri Debia (1843) 3 M.I.A. 229 their Lordships of the Privy Council observe (p, 243) ' an objection has been made that pending the suit an act of adoption was executed by the respondent whereby the whole property was divested from the mother and vested in the adopted son. Now upon the authorities there can be no doubt that that is the result of an act of adoption because the property is in the widow from the death of the husband till the power of adoption is exercised. Then that adoption divests it from the widow and vests it in the adopted son'. The authorities in my opinion clearly establish the view that an adoption puts an end to the widow's estate as fully and effectually as her death.
21. Such being the rights of an adopted son who on adoption claims under a title paramount to that of the widow and divests her of the estate she held, the question is whether the widow who alienates properties without any legal necessity and the alienee from such widow have any rights or equities which would entitle the alienee to possession as against the adopted son. I find it difficult to see how the purchaser from a Hindu widow who has only limited powers of alienation and who alienates property without any necessity or justifying circumstances such as would bind the reversioners after her death or re-marriage can invoke any principles of Hindu Law or any equity to prevent the adopted son (whose adoption has put an end to the widow's estate just as effectively as her death or remarriage) from claiming possession of properties which were alienated. I can see very little equity in postponing the adopted son to a purchaser from the widow who contrary to the principles of Hindu Law and the directions of Smithy writers alienates the estate for no necessity. Whatever may be the nature of the estate taken by a Hindu widow succeeding to her sonless husband it is clear that her powers of alienation are restricted. As pointed out by the Privy Council in The Collector of Masulipatam v. Cavaly Venkatanarayanappa (1861) 8 M.I.A. 529 the estate she takes is a qualified proprietorship with powers of alienation for purely worldly or secular purposes only where there is justifying necessity and the restrictions to the powers of alienation are inseparable from her estate. So far as the texts and Smrithis go they do not countenance the view that a widow can make a valid alienation of any kind or to any extent without justifying necessity and no distinction is drawn as to alienations purporting to be for her life-time only. The text of Katyayana is specific and enjoins her to keep the bed of her lord unsullied to enjoy with moderation his estate and pass it on to his heirs. Brihaspathi observes that she has not got property therein to the extent of gift, mortgage or sale except for spiritual or religious purposes. The restraints on powers of alienation by a Hindu widow are based as pointed out by their Lordships of the Privy Council in The Collector of Masulipatam v. Cavaly Venkatanarayanappa (1861) 8 M.I.A. 529 not merely for the protection of the material interests of her husband's relations but by reason of the opinion of all the Smrithi writers as to the necessity of a Hindu widow being under the advice and protection of her husband's elderly relations. 1 can find nothing in any of the Smrithis or commentaries to warrant the view that they empower a Hindu widow to do what she likes with her limited estate. On the contrary the limitations imposed and the reasons given for the imposition thereof show to my mind clearly that such an idea was repugnant to the minds of the Smrithi writers. So far as judicial decisions go all they decide is that a Hindu widow may deal with her interest in the property inherited at the pleasure so long as such dealing enures for the term she is entitled to the estate as widow succeeding to her sonless husband and no prejudice to the reversion is caused thereby, See Muthu Naicken v. Srinivasa Iyengar (1911) 1 M.W.N. 82 This is chiefly due to the fact that there is in existence no person who can demand present possession of the estate (the reversionary heirs having only a spes successionis) and the widow is estopped from contesting the validity of her own grant. The title of the alienee is therefore incapable of being defeated by any superior title arising during the widow's life.
22. That the estate of the widow is not an indefeasible life estate but only an estate durante viduitate is clear. It is not disputed that the adopted son would divest the widow of all the properties which remain unalienatedat the time of the adoption and it is well settled law that her remarriage will have the same effect so far as the reversioners of her husband are concerned. It is difficult to see how the widow can under these circumstances be said to have an absolute indefeasible estate in the property inherited by her from her husband during the term of her natural life. If she has not got such an estate it is still more difficult to see how any alienation by her can last a moment longer than the cessation of the widow's estate either by death, remarriage or an adoption which certainly divests her as completely as if her husband had left a male issue. To speak of any portion of the estate which has been alienated by her without any legal necessity as having been ' lawfully severed' for the period of her natural life is with all respect unsupported by any texts of the Hindu Law or any principle of Hindu Jurisprudence. It has not been suggested by any body that a gift of the whole or any part of the estate would if made prior to the adoption disentitle the son to claim possession from the donor. As pointed by Chandavarkar, J. in Ramakrishna v. Tripura Bai I.L.R. (1908) 38 Bom. 88 the doctrine enunciated in Sreeramulu v. Krishnamma I.L.R. (1902) Mad. 143 would be equally applicable if the widow alienated the whole of the properties before adopting a son and yet it can hardly be contended that such a result was ever contemplated by Smrithi writers.
23. There seems to me to be no real analogy between the position of a father to whom a son is born after an alienation and a Hindu widow who adopts under authority of her husband after making an unauthorised alienation. Though the fiction of constructive pregnancy through permission to adopt has been exploded by a series of decisions, the adopted son on his adoption becomes the son and heir of hia father and the adoption has retrospective effect in so far as it divests wholly or partially the estate of all persons whom he would have either excluded from the inheritance or shared with. The estates held by a sonless father and a Hindu widow with authority to adopt are essentially different in nature and extent, and the difference has been pointed out by Chandavarkar, J. in Ramakrishna v. Tripura Bai I.L.R. (1908) 38 Bom. 88 and by Collins, C.J. and Handley, J. in Jagannadha v. Papamma I.L.R. (1892) M. 400 : 3 M.L.J. 193. So far as reversioners are concerned their position is quite different from that of an adopted son. Till the death of the widow or the termination of her estate it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband as the property under Hindu law descends to those who would have been heirs to the husband if he had lived up to and died at the moment of her death. When however the widow makes a valid adoption a son is by fiction of law born to her husband the moment she adopts and he by virtue of his sonship succeeds immediately to his father's property as effectually as if he was a posthumous son.
24. The decision of the Privy Council in Bonamali Roy v. Jagat Chandra Bhowmick I.L.R (1905) Cal. 669 supports the view that the adopted son is entitled to immediate possession of property wrongfully alienated by a widow before his adoption. The facts of the case are fully set out at pages 669 to 671 of the report and the judgment of the High Court appears on pages 672 to 674 of the report. It will be seen that the adopted son sued to set aside a perpetual lease granted between the date of the death of his adoptive father and his adoption and recover possession. Various contentions were put forward which are fully dealt with in the judgment of the High Court. One of them was that the lease was executed by the mother-in-law of the widow acting as her guardian and that as the lease was not repudiated by her it must be taken to be the act of the widow and consequently limitation began to run as against the adopted son only from the death of the widow. If the view taken in Sreeramulu v. Krishnamnta I.L.R. (1902) Mad. 143 namely, that the cause of action for possession arose only on the widow's death were correct, it is clear that the suit would not have become barred at the date of its institution, assuming that the lease was one executed by the widow's guardian on her behalf and ratified by her. The following passage in the judgment of their Lordships of the Privy Council shows that they were of opinion that the right to possession arose immediately on adoption. ' On the most favourable view for the appellant she (Hemlate the mother-in-law of the widow making the adoption) granted the putni as manager of the estate for Brajeswari (the widow who adopted the plaintiff) the then legal owner. If the putni was void the period of limitation ran from the date on which it was granted under Regulation II of 1803 as amended by Regulation II of 1805 which was then in force. But if it was voidable only by Brajewari's successsor the right of action arose on the adoption of Banwari Lall and time would begin to run against him from the date when he attained majority in 1856. Under either Regulation II of 1803 or Act XIV of 1859 time ran from the date when the cause of action arose.' It was contended by Mr. Ganesa Aiyar in the course of his able argument that the question as to the right of the adopted son to set aside the alienation of his adoptive mother did not arise for determination as the Courts were only concerned with the lease granted by her mother-in-law acting under an anumati patra granted by adopting widow's father-in-law. A reference to the judgment of the High Court which deals with every possible alternative case or contention and the judgment of the Privy Council which deals with the point of view most favourable to the plaintiff and treats the lease as one by the widow making the adoption shows that the aspect of the case now before us was considered. It is no doubt true that the decision in Sreeramulu v. Krishnamma I.L.R. (1902) M. 143 was not cited at the bar or considered by their Lordships but this is hardly a ground for over-looking what is in my opinion the plain result of the decision of their Lordships. In Sivagnanam Servaigar v. Ramaswami Chetti (1911) 22 M.L.J. 85 Sir Arnold White, C.J. observed that the decision in Sreeramulu v. Krishnamma I.L.R. (1902) M. 143 does not seem to be reconcilable with the decision of the Privy Council and Spencer, J. is of the same opinion in the order of reference.
25. In Amrita Lal Bagchi v. Jatindra Nath Chowdry I.L.R (1904) Cal. 165 which was a suit to set aside an alienation by a widow who subsequently made an adoption it was held following Latchman v. Radhabhai I.L.R. (1887) 11 Bom. 609, Nathagi Krishnaji v. Hari Jagoji (1871) 8 Bom. H.C.R. 167, Moro Narayan Joshi v. Balaji Raghunath I.L.R. (1894) 19 Bom. 809 and Bijoy Gopal Mukerji v. Nil Batan Mukerji I.L.R. (1903) Cal. 990 that the cause of action which an adopted son has to set aside an alienation accrued as soon as he is adopted and that as he was barred, those who came after him were likewise barred even though the suit was within 12 years from the date of the widow making the alienation. The view taken was that as the adopted son divests the estate of the widow and becomes entitled to possession immediately he is adopted and not on her death, Article 141 of the Limitation Act has no application as it only provides for cases when the person suing is entitled to possession on the death of the female. In Kancharla Venkatraman v. Koganti Venkatramiah : (1914)27MLJ569 Wallis, C.J. and Seshagiri Aiyar, J. following Moro Narayan Joshi v. Balaji Raghunath I.L.R. (1894) 19 Bom. 809 Hari v. Waman 03, Harek Chand v. Bejoy Chand Mahtob 9 C W.N. 795 and the view taken in Sreeramulu v. Krishnamma I.L.R. (1902) Mad. 143 as to the article of the Limitation Act applicable, held that the adopted son is governed by Article 144 and has 12 years from the date of his adoption. The facts as appear on the judgment show that the widow before adopting the plaintiff entered into a partition with her mother-in-law which the learned Judges agree in holding was not binding on the adopted son. If the learned Judges intended to adopt the view of Bashyam Iyengar, J. in Sreeramulu v. Krishnamma I.L.R. (1902) Mad. 143 on the other question and to hold with him that the adopted son had no right to recover possession of property alienated by the widow prior to the adoption till the death of the widow it is difficult to see why Article 141 of the Second Schedule to the Limitation Act would not apply and exclude Article 144 which is only a residuary Article as quoad the property alienated the adopted son would be in the same position as any other Hindu entitled to the possession of immoveable property on the death of a Hindu female. Seshagiri Aiyar, J. in dealing with Runchordas v. Parvatibai I.L.R. (1899) 23 Bom. 725 observes: 'the principle of the decision is that until the plaintiff's right to immediate possession accrues his right to possession is not barred. In the case of a reversion the cause of action will accrue on the death of the widow; in the case of an adopted son, on his adoption' and the observations suggest that he was not in agreement with the view of Bashyam Iyengar, J. that the right to possession in case of alienation prior to the adoption accrues only on the death of the widow.
26. Reference has been made to cases where it has been held that a reversioner to whom the widow surrenders the estate (and there by accelerates the succession) cannot sue to set aside the alienation made by her till she dies. These cases have in my opinion no bearing or application to cases of adoption by the widow. The whole doctrine of surrender and consequent acceleration of the estate of the reversioners has no basis in Hindu Smritis but has been evolved by courts of justice on general principles of jurisprudence. An anticipation of interest involved by the theory of relinquishment or the defeasance of an ulterior interest by the intermediate acts on the part of the widow are hardly contemplated by the Hindu law-givers. It is clear that the surrender by the widow and the acceptance of the estate by the reversioner are purely matters of contract. The widow is not bound to surrender the estate nor is the reversioner bound to accept it except on terms which would apply to any other transfer of immoveable property so far as prior alienees are concerned and conditions which courts will impose on considerations of justice, equity and good conscience. To a voluntary relinquishment by the widow based on no considerations of duty to her husband or his spiritual benefit courts have very properly refused to annex the right to defeat alienations made by her which would enure longer but for her voluntary act. As between the widow, the prior alienee, and the reversioners claiming title under a subsequent surrender the alienee has a clear equity to retain possession and the fruits of his purchase till at least the widow dies. But what equity is there in favour of a person who purchases property from a Hindu widow knowing that there is absolutely no necessity for the sale and that she has authority to adopt which she could exercise at any time. It is his clear duty to enquire as to whether she has authority to adopt just as it is the duty of a person dealing with a qualified owner to enquire into the existence of necessity for the alienation. It is no doubt true that the power to adopt has no legal effect till it is actually exercised but the adoption made in pursuance does not put the adopted son in the same position as a volunteer. Having regard to the spiritual importance attached by Hindu law-givers to son-ship and the care and anxiety displayed by them to provide for a substitute in case a son is not born, there can be little doubt that a Hindu widow who has been solemnly enjoined by her husband to perform (what was in his eyes at least) the sacred duty of adopting a son so as to continue his name and lineage and to enjoy and transmit the property to his descendants is under a strong moral obligation sanctioned by the dictates of duty and the pieties of human life to carry out his wishes. It is true she cannot be compelled to adopt but this is due not to the unimportance of the duty but to the absence of any legal machinery by which she can be compelled to perform so personal an act. Self-interest often deters her from performing a duty which according to all Hindu law-givers and the views and sentiment of the great majority of Hindus is of paramount importance to the spiritual needs of her husband and his ancestors but the duty if performed is far from a purely voluntary act on her part but on the contrary one which she was bound to perform by all the dictates of duty and morality as understood by Hindu Law and sentiment. It has been argued that it would be a hardship on the widow to terminate the alienation made by her as it would place a difficulty in the way of her dealing with the estate. I have already shown that the theory that she could do what she pleases with the estate during her life- time finds no sanction in Hindu Law. From the point of view of the widow's interest I should think that any check on her power of squandering her husband's estate or alienating it without any necessity is for her benefit having regard to the ignorance of the vast majority of Hindu females. In an age when legislation has been directed towards and is being called for to protect ignorant people against their own imprudent acts, I think we can well preserve the rules of Hindu sages and law-givers who recognising the limitations of Hindu females and the temptations afforded by poverty have secured to them protection against their own improvidence. It is difficult to see why a purchaser who purchases without any necessity for the sale and who knows that death or remarriage would put an end to her rights should be encouraged in any ' reasonable expectation 'that the widow would violate a clear moral duty for her benefit.
27. Cases relating to agreements between the widow and the father or guardian of the adopted son or the adopted son himself if he is of age, whereby the rights of the adopted son are postponed or put on end to have also no bearing on the question. Where an adopted son is a minor the arrangement is supported on the ground that it was for his benefit and that but for the arrangement he would not have been adopted and so worse off. I doubt very much if courts would uphold an agreement which is distinctly disadvantageous to the minor. In cases where the adopted son is a major he is competent to contract so as to divest himself of rights which accrue to him under Hindu Law.
28. As observed by Mayne in his work on Hindu Law it would be cutting at the root of all well-recognised principles as to the status of an adopted son and the consequences of an adoption to hold that alienations without necessity would bind the adopted son during the widow's life-time. I feel little hesitation in following Ramakrishna v. Tripurabai I.L.R. (1901) B. 88 and answering the question referred to us in the affirmative.