Alfred Henry Lionel Leach, C.J.
1. This appeal raises a question of importance and also of difficulty relating to the Hindu law of adoption. Venkatachalam Pillai, the husband of the second respondent, died in 1890. No child had then been born to him, but two months after his death his widow was delivered of a still-born female child. Before his death Venkatachalam Pillai authorised his wife to make an adoption in case the child she was expecting should prove to be a female. Although Venkatachalam Pillai indicated a preference for a boy named Pichai Pillai should it become necessary to adopt a son to him it has been found as a fact that the power was of a general nature and conferred authority on the second respondent to make another adoption should the adopted boy die. On the 9th February, 1891, the second respondent adopted Pichai Pillai, who was murdered in the month of February, 1907. Pichai Pillai had attained majority, but was unmarried. On the death of Pichai Pillai the nearest male reversioner to the property which had formed Venkatachalam Pillai's estate was one Muthukumara Pillai. In 1922 the second respondent entered into an agreement of partition with Muthukumara Pillai under which the estate was divided between them, the intention being that each should have an absolute interest in the allotted portion. It is common ground that this transaction did not operate as a surrender of the estate to Muthukumara Pillai and did not bind the reversion.
2. In 1926 the second respondent adopted the first respondent in exercise of the power conferred upon her by her husband. She had also received the consent of the nearest sapinda. On attaining majority the first respondent filed a suit in the Court of the District Munsif of Mayavaram to recover the property which was delivered to Muthukumara Pillai as the result of the partition in 1922. This is the suit out of which the present appeal arises. The defendants were the second respondent, the appellant (the widow of Muthukumara Pillai) and the third, fourth and fifth respondents, who were joined as alienees of the property in suit. The District Munsif held that the adoption of the first respondent was valid, that the partition deed entered into by the second respondent with Muthukumara Pillai was invalid and that the first respondent was entitled to sue for the recovery of the property which had passed to Muthukumara Pillai without waiting for the death of the second respondent. There were other findings, but it is not necessary to refer to them. The appellant appealed to the Subordinate Judge of Mayavaram, who concurred in the findings of the District Munsif. The appellant then appealed to this Court, again without success, but the learned Judge who heard the second appeal (King, J.) gave a certificate under Clause 15 of the Letters Patent which has permitted of the present appeal.
3. Mr. Rajah Aiyar, on behalf of the appellant, desired to raise the question of the validity of the first respondent's adoption, but this was not open to him. Whether Venkatachalam Pillai gave his wife oral authority to make a second adoption in the event of the first adopted son dying is a question of fact and the judgment of the Subordinate Judge is conclusive on the point. But even if it were not, the right of the second respondent to make a second adoption cannot be challenged as the second respondent received the consent of the nearest sapinda before she adopted the first respondent. The only question which arises in this appeal is whether the adoption of the first respondent gave him an immediate right to sue to recover the property taken by Muthukumara Pillai under the partition deed, or whether his right of action is postponed until the death or re-marriage of the second respondent. There is no decision of this Court directly bearing on the question and the decisions of other High Courts in India which have bearing cannot be deemed to have settled the law. In these circumstances, it is necessary to consider what are the principles which apply.
4. When a Hindu dies leaving a widow and no issue, the widow takes the estate as his heir and she has, to use the words of Bhashyam Aiyangar, J., in Sriramulu v. Kristamma : (1902)12MLJ197 :
an absolute right to the fullest beneficial interest in her husband's property for her life and she has a personal interest therein, which she can exercise at her will and pleasure, by giving, selling or transferring the estate to another for her own life, or speaking more accurately, for the term of her widowhood.
5. By adopting a son to her husband a widow divests herself of this estate and the property devolves upon the adopted son unaffected by any alienation made by her, unless made as the result of necessity. In Sriramulu v. Kristamma : (1902)12MLJ197 , Bhashyam Aiyangar, J., sitting with Davies, J., held that by adopting a son to her deceased husband the widow could not defeat alienees of her interest in the property and that the son could not sue to recover possession from alienees until her death or the termination of her widowhood. This decision was, however, overruled by a Full Bench of this Court (Wallis, C.J., and Oldfield and Kumaraswami Sastri, JJ.) in Vaidyanatha Sastri v. Savithri Ammal : AIR1918Mad469 . In view of the observations of the Privy Council in the Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) 12 M.I.A. 397 and Bonomali Roy v. Jagat Chandra Bhowmick it was clear that the decision in Sriramulu v. Kristamma : (1902)12MLJ197 could not be allowed to stand. In the Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) 12 M.I.A. 397 Sir James Colvile in delivering the judgment of the Board said:
The rights of an adopted son are not prejudiced by any unauthorised alienation by the widow which precedes the adoption which she makes,
and this rule was applied by the Judicial Committee in Bonomali Roy v. Jagat Chandra Bhowmick when deciding a question of limitation. In overruling Sriramulu v. Kristamma : (1902)12MLJ197 , the members of the Full Bench were not detracting anything from what Bhashyam Aiyangar, J., had said with regard to a widow's rights in the estate up to the time of the adoption by her of a son to her husband, but in view of the judgments of the Privy Council in the cases referred to they were bound to decide that by the adoption she divests herself of the estate, which thereupon devolves upon the adopted son unaffected by alienations made by her without necessity.
6. A Hindu widow has a right of surrendering her interest in her husband's estate in favour of the nearest male reversioner or reversioners, but in Subbamma v. Subramaniam (1915) 30 M.L.J. 260 : I.L.R. Mad. 1035 this Court held that a surrender by a Hindu widow does not affect alienations made by her before the surrender. Such alienations are binding on the reversioners so long as she is alive. In Sundarasiva Rao v. Viyamma : (1925)49MLJ266 , this Court held that the judgment in Vaidyanatha Sastri v. Savithri Ammal : AIR1918Mad469 , did not affect the validity of the decision in Subbamma v. Subramaniam (1915) 30 M.L.J. 260 : I.L.R. Mad. 1035.
7. When an adopted son dies and the widow makes a second adoption in pursuance of authority given to her in that behalf the position is not exactly the same as it was when she made the first adoption, because she no longer holds the estate as the heir of her late husband, but as the heir of the deceased adopted son. In Ramaswami Aiyan v. Venkataramayyan a case in which there was a second adoption, the Privy Council observed:
The first adopted son became his father's heir; on the death of that son after that of his father, the widow became the heir, not of her late husband but of the adopted son. Whether by the act of adopting another son she in point of law divested herself of that estate in favour of the second son may be a question of some nicety, on which their Lordships give no opinion.
8. That on the death of the first adopted son the widow holds the estate as his heir is emphasized in Madana Mohana Deo v. Purushothama Deo . In delivering the judgment of the Board, Viscount Haldane, after pointing out that when Brojo Kishore, the first adopted son, succeeded he became the full owner of the estate from whom heirship must be traced instead of as from the widow's husband, Adikonda, went on to say:.the widow of the latter was therefore in a different position when she endeavoured to effect the second adoption from that which she occupied on the former occasion. She could on that occasion, by exercising the power conferred on her, establish a direct succession to the estate of her husband Adikonda, which related back to his death. On the second occasion the ownership which had become vested in Brojo Kishore had intervened, and it was only to his estate that she could possibly establish a succession.
9. As the result of the judicial decisions given since the judgment of the Privy Council in Ramaswami Aiyan v. Venkataramayyan it is conceded on behalf of the appellant that when the widow lawfully makes a second adoption she again divests herself of her interest in the property, but it is not conceded that the divesting affects alienations made by her after she had gained possession of the property as the heir of her son. It is contended that in the case of a second adoption the principle stated in Subbamma v. Subramaniam (1915) 30 M.L.J. 260 : 1.L.R. Mad. 1035 should be applied. The reasons given for asking the Court to differentiate between a first and a second adoption are these. A son is superior to a widow as an heir and when a widow makes a fresh adoption she is creating an heir who comes in front of her. In adopting a second time the widow is not creating an heir to her deceased husband's estate. That estate no longer exists; it has become the estate of the first adopted son. By the second adoption she creates an heir to her son's estate and here she is in a superior category, because a mother comes before a brother under the Hindu law of Succession. In these circumstances it is said that the principle stated in Ramaswami Aiyan v. Venkataramayyan and applied in Bonomali Roy v. Jagat Chandra Bhowmick cannot be applied here.
10. At this stage it will be convenient to refer to the cases which have been quoted in argument and have direct bearing on the question under discussion. These comprise three decisions of the Calcutta High Court, namely, the decisions in Govindo Nath Roy v. Ram Kanay Chowdhry (1875) 24 W.R. 183 Rai Jatindranath Chowdhuri v. Aniritlal Bagchi 5 C.W.N. 20 and Hamed Gazi v. Sadat Alt Sikdar 44 C.W.N. 443 the decision of the Bombay High Court in Hanmant Subbayya v. Krishna Manjinath I.L.R.(1925) 49 Bom. 604 and the decision of the Allahabad High Court in Lakhmi Chand v. Gatto Bai I.L.R.(1886) All. 319.
11. In Gobindo Nath Roy v. Ram Kanay Chowdhry (1875) 24 W.R. 183 the Calcutta High Court held that where a Hindu widow succeeds to the estate of her adopted son on his death, and before making a second adoption she alienates the property, the adopted son cannot divest the alienee of his rights, and this was said to be the decision of the Privy Council in Bhoobun Moyee Debia v. Ram Kishore Acharjee (1865) 10 M.I.A. 279. I am unable to read the judgment in Bhoobun Moyee Debia v. Ram Kishore Acharjee (1865) 10 M.I.A. 279 in the same way. The facts in that case were shortly these. In 1811 a Hindu gave his wife power to adopt a son, but before he died his wife bore him a son. In 1819 by a written instrument the husband gave the wife power to adopt should the son die. The son survived his father, but died without issue. He had married and his wife survived him. After the death of the son his mother exercised the power given to her by the instrument of 1819 and adopted a son to her husband. The question which fell for decision by the Privy Council was whether the mother could lawfully make a second adoption inasmuch as on the death of the natural son the estate vested in his widow. It was held that in these circumstances, she was precluded from exercising the authority to adopt given in 1819. The decision did not go beyond that, and therefore the judgment does not help in deciding the question now before the Court.
12. In Rai Jatindranath Chowdhuri v. Amritlal Bagchi 5 C.W.N. 20 the Calcutta High Court held that when a Hindu widow adopts a second son upon the death of a first son the second son takes the estate because by adopting a son to her husband in those circumstances the widow must be taken to intend the vesting of the estate which originally belonged to her deceased husband in the second son. It was also held that where a widow makes a second adoption the second adopted son takes the estate immediately on his adoption. Full approval of the judgment in that case was expressed in Homed Gazi v. Sadat Ali Sikdar 44 C.W.N. 443.
13. The Bombay High Court in Hanmant Subbayya v. Krishna Manjinath I.L.R.(1925) 49 Bom. 604 expressly held that a second adopted son acquires by virtue of his adoption an inherent right to question alienations made by his adoptive mother before his adoption and that the fact that there was a previous adoption in no way affects his rights. The Court was of the opinion that the second adopted son did not succeed to the first adopted son, but this conflicts with what is said in the passages which I have quoted from the judgments of the Privy Council in Ramaswami Aiyan v. Venkataramayyan and Madana Mohana Deo v. Purushothama Deo .
14. The Allahabad High Court held in Lakhmi Chand v. Gatto Bai I.L.R.(1886) All. 319 that the effect of the second adoption being to make the second adopted son the son of the deceased husband, he must be treated as if he had been born, or at all events conceived in the husband's lifetime, and that his title relates back to the death of his elder brother, the first adopted son.
15. Except for the judgment in Gobindo Nath Roy v. Ram Kanay Chowdhry (1875) 24 W.R. 183 which goes far beyond the decision of the Privy Council on which it is based--this was in effect also pointed out in Hanmant Subbayya v. Krishna Manjinath I.L.R.(1925) 49 Bom. 604--the trend of the decisions, it will be observed, is against the appellant's case. Mr. T. M. Krishnaswami Aiyar, on behalf of the respondents, has also relied on the following passage in the latest edition of Mayne's Hindu Law (tenth edition, page 267):
It will be observed that if the effect of the adoption is to introduce only a brother to the last male holder, the estate of the mother, who is a preferable heir would not be divested. The title of the adopted son however relates back to the death of the adoptive father and the adoption substitutes another son in place of the deceased son. He can be regarded as a coparcener with his brother only under the Mitakshara law, but not under the Dayabagha law, where also the mother's estate is divested by the adoption. The ground of the divesting must therefore be, either that the mother elects to hold the property as her husband's property when she exercises her power of adoption, or that the title of the adopted son relating back to his father's death is the necessary legal result of the power to substitute another son for one deceased. The Madras High Court has in one case held that a widow who had succeeded as heir to an adopted son and made a subsequent adoption after his death, was divested of the self-acquired property of the son first adopted by her (Suryanarayana v. Ramadoss (1917) 34 M.L.J. 87 : I.L.R. Mad. 604 . This decision does not appear to be sound in principle; the adopted son can only succeed to what is or could have been the property of the adoptive father, and the mother's interest in her husband's estate only could be divested.
16. Without entering on a discussion of the decision in Suryanarayana v. Ramadoss (1917) 34 M.L.J. 87 : I.L.R. Mad. 604 the Madras case referred to--Pichai Pillai left no separate property--there is here room for criticism. On a second adoption it is not the mother's interest in her husband's estate which is divested; it is her interest in the estate of her first son. It is also to be remembered that the existence of the deceased father's estate is not a condition precedent to an adoption. In Amarendra Man Singh v. Sanatan Singh the Privy Council said that it can hardly be doubted that the doctrine of the devolution of property, though recognised as the inherent right of the son, is altogether a secondary consideration when considering the question whether the widow should adopt. In the judgment in that case the Judicial Committee laid great stress on the spiritual side of the act of adoption. Bearing in mind that the validity of an adoption in no way depends on the existence of an estate, that the father's estate, if there is one, becomes the son's estate, when a son is adopted to him; and that on the death of the adopted son the mother succeeds to the property as the son's heir, if he leaves neither issue nor widow, it is difficult to see how the ground of the divesting of the property on a second adoption can be either the assumption that the mother elects to hold the property as her husband's property or that the necessary legal result of the exercise of the power to adopt a second son is that the second son's title relates back to his father's death. However much the widow may intend or even proclaim that she is holding the property as the property of her husband it will not alter its character. Neither intention nor act can change back her first son's property into the estate of her deceased husband. With respect I agree with the observation of Varadachariar, J., in Subramanian Chettiar v. Somasundaram Chettiar : AIR1936Mad642 , when he said that 'even a fiction cannot be carried to illogical limits.' Why could not the reason for the divesting be placed on the broad ground that the act of adoption implies it But the finding of the proper reason is not important when one is faced with a reality.
17. The right in the second adopted son to sue immediately to set aside an unlawful alienation made by his mother between the death of his brother and his own adoption cannot properly be based on legal fiction. If the right is to be recognised at all it must be because there exists no overriding reason why the rule which has been applied in the case of a first adoption should not be applied in the case of a second adoption. The conclusion at which I have arrived--and I must say, not without hesitation--is that there is no overriding reason and that therefore they should both be placed on the same footing with regard to the setting aside of unlawful alienations made by the widowed mother. The reasons for my conclusion are these:
(1) There is no authority to be found in the ancient texts for the rule that when the widow adopts a son to her deceased husband he takes the property which formed his father's estate unaffected by unlawful alienations made by his adoptive mother. The rule is of modern growth and seems to have been first stated in this form in the Collector of Madura v. Motoo Ramalinga Sethupathi (1868) 12 M.I. A. 397.
(2) The rights of the widow in the property which she holds as the heir of her son are co-extensive with the rights which she possessed when she held it as the heir of her husband. In both the cases she possesses the right of alienating for the period of her life, but not beyond, except in case of necessity. In other words the quality of the estate is the same.
(3) If it is right that an alienee should be defeated by a first adoption, except in the case of necessity--and this must be regarded as being well settled--it is difficult to see why he should not be defeated in the case of a second adoption, the widow's powers of alienation being the same when she holds the property as a mother as when she holds it as a widow.
(4) A person contracting with a childless widow does so subject to the knowledge that she may possess, or may be given, a right to adopt.
(5) There is a difference between a widow surrendering the estate to the nearest reversioner and being divested of the property by reason of her own act of adoption. In adopting a son to her deceased husband she is fulfilling what is regarded as a religious duty. In surrendering the estate to the nearest reversioner duty plays no part.
(6) Excluding the case of Gobindo Nath Roy v. Ram Kanay Chowdhry (1875) 24 W.R. 183 which was based on a misconception, the High Courts of Calcutta, Bombay and Allahabad have recognised the immediate right of the second adopted son to set aside unlawful alienations, and the earliest of the decisions in which the right was recognised was given as long ago as 1886.
(7) The second adopted son is just as much the son of his father as was the first adopted son and to give him the same rights in the property which had formed his father's estate as were given to his deceased brother involves no undue straining of what is now an accepted doctrine in the case of a first adoption.
(8) To put the second adopted son on the same footing as his deceased brother is in accordance with Hindu conceptions of what is right and proper.
18. It follows that in my opinion the decision under appeal should not be disturbed and I would dismiss the appeal with costs.
19. The judgment of my Lord has analysed the result of a line of authority which, whilst at times approaching, has never with the possible exception of Hanmant Subbayya v. Krishna Manjinath I.L.R.(1925) 49 Bom. 604 directly decided the 'question of some nicety' with which the able arguments of Mr. Rajah Aiyar and Mr. T.M. Krishnaswami Aiyar have confronted us in this appeal. Even in Hanmant Subbayya v. Krishna Manjinath I.L.R.(1925) 49 Bom. 604 it does not appear from the report that the Courts were invited to consider the numerous cases to which we have been referred. Bhoobun Moyee Debia v. Ram Kishore Acharjee (1865) 10 M.I.A. 279 was cited but not the Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) 12 M.I.A. 397 nor Ramaswami Aiyan v. Venkataramayyan before the Bombay High Court. It is important to note that in Ramaswami Aiyan v. Venkataramayyan although the decision in the Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) 12 M.I.A. 397 was cited before the Board, Sir Robert Collier still treats as open for discussion the question which it is pressed upon us must be taken to be concluded by the dictum of Sir James Colvile in the Collector of Madura v. Mootoo Ramalinga Sethupathi (1868) 12 M.I.A. 397 .
20. I accordingly agree that this matter must be regarded as res integra so far as this Court is concerned. The ancient texts give us no assistance, a fact which is not surprising in this more material age. The blending of modern principles of inheritance with the purely spiritual idea underlying the Hindu conception of adoption must, as Varadachariar, J., in Subramanian Chettiar v. Somasundaram Chettiar : AIR1936Mad642 , has indicated, produce a position where fiction and logic are irreconcilable. It seems to me that only by allowing the modern law of inheritance to predominate in this welter of ideas can we decide this case in favour of the appellant.
21. Perhaps a modernist would prefer another result, but for the reasons which my Lord has given and with which I am in respectful agreement, I consider that the result of this-appeal is more in consonance with, and does no more than apply, the true principles of Hindu law which, as emphasised, are concerned with spiritual rather than material matters.
22. I therefore agree that this appeal must be dismissed With costs.