1. One Ramasami Sastri died, leaving joint and separate property. Subsequently his widow under an authority given by him adopted two boys in succession, the second, now plaintiff-respondent, after the death of the first at the age of four. The question is whether plaintiff is entitled against 1st defendant, here appellant, the undivided brother of Eamasami Sastri, to a share in the joint property by partition and to the latter's separate property by inheritance. It is conceded that the widow would not be debarred merely by the failure of the first adoption from making a second; and it is not disputed that authority would be in plaintiff's favour, if there were only separate property. The question is whether he is entitled to a share in the joint property. Considerations of ' convenience and symmetry are on his side, since it would be anomalous that his adoption should be recognized to enable him to inherit one description of property and not to entitle him to partition of the other. It is not however necessary to resort to those considerations in order to find ground for a decision in his favour.
2. At page 251, Mayne's Hindu Law and Usage, 8th edition, the rules deducible from the authorities regarding divestiture of estates in consequence of adoption are stated. But it is better to attempt to reach the principle, on which such rules may be founded, if only because the learned author's references to the divesting of estates are not always strictly applicable to joint family property, such as is now in dispute. That principle has been formulated differently on each side. 1st defendant contends that the widow can adopt after the estate of a deceased adopted son or other person entitled has intervened between the death of her husband and the date of the adoption, only if she has herself succeeded in the absence of a successor to such son or person; plaintiff that the principle is, as stated by Chandavarkar, J., in Ramkrishna v. Shama Rao I.L.R. (1902) Bom. 526 that, 'where a Hindu dies leaving a widow and a son and that son dies leaving a natural born or an adopted son or leaving no son, but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and cannot afterwards be revived'. And this must, it will be seen, be extended to cases, in which the son did not actually leave a widow or give his widow authority, but died after reaching an age, at which he was capable of doing either. Shortly the decisive consideration is on the one view the existence at the date of the disputed adoption of some one, other than the adopting widow, immediately entitled to the estate; on the other the previous extinction of the widow's power in consequence of other possibilities of the continuance of the line having arisen, In the present case on the one hand 1st defendant is such a person; but on the other, the first adopted son having died at the age of four, no such possibilities are in question and the widow's power is still exercisable.
3. The point does not fall to be decided on any text; and the doubt regarding it arises from the alleged ambiguity of the earliest authority on it, Chundrabullee's case (1865) 10 M.I.A. 279. The question arose there between the son adopted by the widow of and the son's widow of one Gour Kishore, no co-parcener being in question. The material part of the judgment consists first in reference to the extinction of the widow's power, to the son's marriage, to his having lived to an age, which enabled him to perform ceremonies for his father's benefit or to adopt a son; and his failure to actually beget or adopt a son is explicity treated as immaterial. All this supports plaintiff's argument. But there follows a reference, on which 1st defendant relies, to the facts that the son's widow had acquired a right to the estate and that in her absence Gour Kishore's widow would by the adoption have divested no estate but her own. And defendant's contention is no doubt reconcilable with the description of the decision in Vellanki Venkata Krishna Rao v. Venkatarama Lakshmi I.L.R. (1876) Mad. 174 as not governing a 'case, in which the adoption was made in derogation of the adoptive mothers estate' but deciding that 'the son having died leaving a widow, in whom the inheritance had vested, the mother could not defeat the estate so vested by making an adoption'.
4. The arguments addressed to us traced the current of authority in the High Courts, which have dealt with these alternative principles, Madras, Calcutta, and Bombay showed that its direction has varied, particularly in the last mentioned. But it is unnecessary to go through the cases, because all doubt has now been set at rest by the recent judgment of the Privy Council in Madana Mohana Ananga v. Purushothama Ananga (1918) 35 M.L.J. 138 : I.L.R. 41 Mad. 855 in plaintiff's favour. There the succession to an impartible Zemindari was in dispute between a second adopted son and a reversioner, the first adopted son having died leaving a widow, who was not a party. Reference was made to Ghundrabullee's case. The dictum of Chandavarkar, J., waa explicitly adopted; and it was held, as the sole ground of decision, that the widow's power came to an end, when the son she first adopted died after attaining full legal capacity to continue the line, either by the birth of a natural born son or by the adoption to him of a son by his own widow. And this, it was stated explicitly, in no degree depended on the fact that there was no evidence as to whether the widow had or had not authority to make such an adoption.
5. It is then however argued that this result, the adoption of the rule proposed by plaintiff, which was all that was necessary in the case under disposal, does not in the present case negative the necessity for the application of that, for which 1st defendant contends, as a further test of the validity of the adoption. The question, it is said, to follow the words of Batchelor, J., in Bhimabai v. Tayappa I.L.R. (1913) Bom. 598 is not only whether the widow has power to adopt, but further whether, 'given that the adoption does divest another heir's vested estate, the adoption is valid.'' The latter question the Privy Council no doubt had not to consider. But its reference to two other cases, besides Chundrabullee's case indicates its attitude. In Padmakumari Debi v. Court of Wards I.L.R. (1881) Cal. 302 : L.R. 8 IndAp 229 Chundra-bullee's adoption, again came under consideration, the argument being that it might be valid, when it was relied on subsequently and for other purposes; and their Lordships explained their previous decision in words, which they quoted later in Thayammal v. Venkatrama (1887) L.B. 14 I.A. 67 : I.L.R. 10 M. 205 with reference to the ceremonial competence of the last male holder of the estate and on the consequent determination of the widow's power. This is the more significant, because in the judgments of the High Court under appeal, Puddo Kumaree Debee v. Juggut Kishore I.L.R. (1880) Cal. 615 that reference had been directly challenged as due to inadvertence and the challenge was met by no suggestion that the decision was reached also on another ground. It is not possible in these circumstances to follow Batchelor, J, in the case above referred to and to treat any rule based on the fact that no estate but the widow's own was divested as the ' summary and culmination ' of the judgment in Chundrabullee's case. Such a rule, if it is not authorized by that judgment cannot be founded on the short description of it given in Vellanki Venkatakrishna Rao v. Venkatarama Lakshmi I.L.R. (1876) Mad. 174 and we have been shown no alternative source, from which it can be derived.
6. Some argument has then been attempted with reference to the principle that an adoption by the widow cannot divest an estate, which has vested, as the estate had done in Madana Mohana v. Purushothama I.L.R. (1911) Mad. 1105 : 27 M.L.J. 306 in the person entitled by the ordinary rules of succession and it is further argued that divestiture of joint family property stands in any case on a different footing from that of impartible property. As regards the latter, the case cited is sufficient authority, since it contrasts the divesting on the occasion of a previous adoption by the same widow with that in question in it and explains the former on the ground that, so long as the widow's power was operative, the person divested had only a temporary right to enter, which operated merely to prevent the succession falling into abeyance. See also Surendra Nandan v. Sailaja Kant I.L.R. (1891) Cal. 385 a case decided with reference to joint family property and therefore relevant to 1st defendant's second contention just referred to. As regards that contention, it would serve no good purpose to follow the argument through the various authorities cited, since in this Court the reference obiter by White, C.J., in Sivagnana Servaigaran v. Ramasamy Chetty (1911) 22 M.L.J. 85 to the absence of authority to show that the principle of Chundranbullees case did not apply in the case of a joint Hindu family and the fuli Judgment of Seshagiri Aiyar, J., in Madana Mohana v. Purushothama I.L.R. (1911) Mad. 1105 : 27 M.L.J. 306 from which White, C.J., did not dessent and in which I respectfully concur, seem to me to place the point beyond doubt. True, the learned Judge was dealing in the latter case with the rather different question whether impartible property could be divested by an adoption not made to the last male-holder. But it was a part of his argument that the question would have been answered similarly jn the affirmative, if joint family property had been in dispute, because impartible property is merely joint family property subject to an exception as to enjoyment. The learned Judge's conelusion was apparently not assailed before the Privy Council and may be accepted as the law; and I cannot find and we have not been shown anything in the rule in the form, with which we are concerned, which makes the exceptions to which he referred, material. It follows from the considerations referred to by him that the existence of a co-parcener otherwise competent to take by survivorship is no obstacle to the widows exercise of the power of adoption recognized in Chundrabullee's case (1865) 10 M.I.A. 279 and in Madana Mohana Ananga v. Purushothama Ananga (1918) 35 M.L.J. 138 : I.L.R. 41 Mad. 855
7. The result is that the second appeal must be dismissed with costs.
8. In this case the appellant, the 1st defendant, is the undivided brother of one Ramaswami Sastri and he appeals against the decree obtained by the plaintiff, the adopted son of Ramaswami Sastri, for his share in the family property. After Ramaswami Satri's death his widow adopted a boy who died at the age of 4 and she afterwards adopted the plaintiff. The factum of adoption is not disputed nor is it disputed that she had authority to make a second adoption provided it was not otherwise invalid in law. The sole question that has been argued before us is as to the validity of the plaintiff's adoption. The pleader for the appellant relying on the case of Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279 contend that a second adoption which is not to the last male-holder cannot be allowed to divest the undivided brother of the estate which vested in him on the death of the last male-holder. It is not disputed that the adoption of the first son was valid although it equally divested the brother of the estate. The argument is that when the adoption is not to the last male-holder its validity has to be determined on different principles to those which we should follow in considering an adoption to the last male-holder. In Sri Virada Pratapa Raghunada Deo v. Sri Brozo Krishore Patta Deo I.L.R. (1876) Mad. 69 the Privy Council upheld the validity of an adoption so as to oust a brother of the adoptive father in an impartible Zamindari, and in Bachoo v. Mankorebai I.L.R. (1804) Bom. 51 the widow of one deceased brother was allowed to adopt a son after the death of another brother who left a posthumous son. It cannot therefore be disputed that a widow has power in an undivided family to adopt a son to the prejudice of the surviving members of the family and it is difficult to see on what principle one can differentiate such an adoption when it is made to the last male-holder of an undivided share from an adoption made to the last maleholder but one, even if it can really be said, that the share of a son in an undivided family is identical with the share of his deceased father. If in an undivided family the share of a deceased member vests in the survivor the latter would be divested equally in both cases and to say that such a divestment is to be allowed in one case and not in the other does not seem to be based on any particular principle. The leading case on the validity of such adoptions is Mussumat Bhoobun Moyee Delia v. Bam Kishore Acharj Ghowdhry (1865) 10 M.I.A. 278 and it was there held generally that when a son had succeeded to the ancestral property as heir and had full power of disposition over it and might have alienated it or might have adopted a son to succeed to it if he had no male issue cf his body, then it is not open to his father's widow to make an adoption merely because the son died without male issue and without making an adoption because her authority to adopt had come to an end. In that case the son had left a widow and it was held that she could not be divested by an adoption to her father-in-law when a natural-born brother of her husband would not have divested her of her estate.
9. The argument for the appellant in this case has been based almost entirely on the question of devolution of property, and it has been contended that the validity of an adoption depends entirely on its effect on the devolution of the property belonging to. the father to whom the adoption was made. This overlooks the other aspect of adoption, namely, that a son is adopted in order to perform certain ceremonies for his father and in order to continue his father's line for his father's benefit; and the principle underlying the decision in Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Ghowdhry (1865) 10 M.I.A. 278 has been stated in Ramkrishna v. Shama Bao I.L.R. (1902) Bom. 526 by Chandavarkar, J., on page 532 to be as follows:--' Where a Hindu dies leaving a widow and a son, and that son dies leaving a natural-born or adopted son or leaving no son but bis own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived.' This principle was approved by a recent Privy Council decision in Madana Mohana v. Purushothama (1918) 85 M.L.J. 138 and there their Lordships say that the authority to adopt conferred on the father's widow came to an end when the son she originally adopted died after attaining full legal capacity to continue the line either by the birth of a natural-born son or by the adoption to him of a son by his own widow, and their Lordships observe further that they do not base their decision on the power of the son's widow to adopt; for they say that even in its absence the succession of Brojo Kishore (i.e., the sonj and his dying after attaining full legal capacity to continue the line would in themselves have been sufficient to bring the limiting principle into operation. It would seem therefore that the principle in these cases is that the power to adopt comes to an end when the estate is vested in a person, who is a full owner and fully capable of himself continuing the line of succession and that when once an estate is so vested even though the last full owner has not taken steps to provide for its devolution after his death but has allowed it to devolve by process of law on a collateral, he has by his act or omission divested the succession and therefore the widow of his father cannot step in to divest the new heir in whom the property has vested. There is a case in Bhimabai v. Tayappa Murar Rao I.L.R. (1913) Bom. 598 where a widow adopted a son who died unmarried. She then adopted another boy which was held to be invalid, because under the Bombay Hereditary Offices Act a reversioner had succeeded to the property on the death of the first adopted son, but that decision appears to rest upon the peculiar nature of the property in the case as otherwise it would be opposed to the case in Vellanki Venkatakrishna Rao v. Venkatarama Lakshmi I.L.R. (1876) M. 174 where the Privy Council held that a widow could adopt a son on the death of her natural-born son under age and unmarried. Nearly all of these cases deal with separate property and the question whether a second adoption can be made in an undivided, family has not been definitely decided in any reported case. But the point has been considered in Madana Mohana v. Purshothama I.L.R. (1914) M. 1105 where Seshagiri Aiyar. J., is of opinion that the theory that an adoption should be to the last male-holder is not applicable to joint Hindu families living in co-parcenary. The late Chief Justice Sir Arnold White, was inclined to take a different view but was not prepared to assert it definitely and left the question open. In considering the case of an undivided Hindu family oue point for consideration is whether the surviving member can be said to be divested of the share of the deceased member by the adoption of a son to him. The exact interest in the family property of any particular member of an undivided family cannot be ascertained with any accuracy until the time of partition actually arrives. Any member's share is apt to be increased or decreased accordingly as the number of members in the family is increased or decreased and this point was considered in Bachoo v. Mankorebai I.L.R. (1904) . Bom. 51 where it was held by Russell, J., that the survivor was not the sole absolute proprietor or full owner of the estate of his deceased brother; and we see that in no decision has the principle that when the adoption is not to the last full owner of the estate the question of divesting the heir comes into play, been applied to undivided property. If a person who takes an estate by survivorship is not the full owner--and it is difficult to look upon him as such considering the fact that other members of the family may be born who will take an interest in the estate--the principle of adoption to any one not the last full owner would not apply to undivided families as pointed out by Seshagiri Aiyar, J., in Madana Mohana v. Purushothama I.L.R. (1914) Mad. 1105. The present case is further complicated by the fact that plaintiff's adoptive father had self-acquired properties as well as ancestral property. So far as the former are concerned the adoption would be valid in accordance with the. decision in Vellanki Venkatakirishna Rao v. Venkatarama Lakshmi I.L.R. (1876) M. 174 and the point is conceded in argument but if the contentions for appellant are accepted the adoption would not be valid in respect of the ancestral property. In this view plaintiff would take the separate property as his father's son, but in respect of the ancestral property would not be his father's son. This reductio ad absurdum is I think an additipnal reason for holding that the principle contended for by appellant is not sound.
10. In this view, I think the plaintiff's adoption in the present case must be held to be valid, for the first adopted son died as an infant at the age of 4 and unmarried and in the words of the Privy Council had not attained ' full legal capacity to continue the line.' Therefore the adoption of a second son had merely the effect of continuing the line of the last full owner and did not disturb any new line of the inheritance.
11. The circumstance requisite to determine the widow's power of adoption as laid down in Madana Mohana v. Purushothama I.L.R. (1918) Mad. 855 : 35 M.L.J. 138 had not come into existence, and the adoption is therefore valid.
12. The Second Appeal is dismissed with costs.