1. This appeal raises the question of the validity of an adoption. The properties in question formed part of the estate of one Sampanghi Rame Gowdu who had a son Byre Gowdu. The father and the son separated and it was agreed as one of the terms of the partition that the father's estate should be held during his lifetime by his second wife Lakshmakkal and on her death should go to Byre Gowdu, the son by the first wife. Lakshmakkal during her lifetime transferred those properties to her nephew the first defendant. Byre Gowdu had two wives, the first was the plaintiff and the second was one Ramakkal. Neither of them had any children. Byre Gowdu died in 1909 leaving a will which concludes with the following sentence:.if after my lifetime, both of you (that is, the two wives) do not agree to live together dividing the said properties into two equal shares, you shall separately make adoptions....
2. Apparently this was regarded as giving each of the widows power to adopt without regard to the other. At any rate in 1909 shortly after the death of Byre Gowdu, the junior widow, Ramakkal adopted the second defendant. There is no doubt about the fact of the adoption, which is embodied in a deed, Ex. II. At the time of the adoption, the two wives who are sisters were living together. The plaintiff made no objection to the adoption; but it has been found as a fact that she did not consent to it. The adopted son lived with the two widows for ; many years without his status being questioned. However, after the first defendant got a transfer of Lakshmakkal's property, he also got a surrender from the second defendant of the latter's interest thereon. Ramakkal died in 1950 and Lakshmakkal died in 1932. Byre Gowdu's father had died long before. So that at the time of the suit there were living, the plaintiff who is the senior widow of Byre Gowdu, the second defendant adopted by the junior widow Ramakkal and the first defendant, the nephew and transferee of Byre Gowdu's father's second wife.
3. We are no longer concerned with the plaintiff's right to the half of Lakshmakkal's property which goes to her as the widow of her husband. The appeal relates only to the right of the plaintiff to the half of the property which would have devolved upon Ramakkal had she been alive When Lakshmakkal died and is now claimed to have devolved upon the first defendant by reason of the surrender by the second defendant, the adopted son of Ramakkal.
4. The main question in the appeal is whether this adoption was valid. Fortunately there is no longer any difficulty about the facts and the only trouble relates to the effect of the provision in Byre Gowdu's will, Ex. B, which has already been extracted authorising each of the widows to adopt. It seems to me that this difficulty can be resolved by reference to authorities. The Privy Council in Akhoy Chunder Bagchi v. Kalapahar Haji , dealing with a case in which two widows were each authorised to make adoptions and in pursuance of that authority made simultaneous adoptions, held firstly that the instrument should be construed on the assumption that the person giving the authority intended his widows to do that which the law allowed and not to do something which was if not absolutely illegal, very unusual and not practiced among Hindus. Secondly, their Lordships held that simultaneous adoptions by two widows were contrary to law.
5. Next there is the case of Bijoy Krishna Karmakar v. Ranjit Lal Karmakar I.L.R (1911) 38 Cal. 694, the decsion being confirmed in appeal by the Bench whose judgment is reported in Ranjit Lal Karmakar v. Bijoy Krishna Karmakar I.L.R(1912) 39 Cal. 582. That case concerned an instrument which authorised two widows to act according to their religious tenets by adopting three sons successively. It was held following the Privy Council decision just cited that the instrument must be read not as authorising an illegal simultaneous adoption but as giving power of adoption to the widows successively and that this being so the elder widow had the prior right to exercise the power of adoption and that the younger widow had no right to adopt before the elder widow had exhausted her right or refused to use it. The reasoning is that such a construction is not contrary to the terms of the instrument and is in accordance with the ordinary rule of Hindu law, which may be assumed to have been in the mind of the person giving the authority at the time when the instrument was drafted. The confirming decision has been quoted with approval in a Madras case Rajah Venkatappa Nayanim Bahadur v. Ranga Rao (1915) 29 M.L.J. 18 : I.L.R. 39 Mad. 772, though the point actually arising in that case was rather different.
6. It seems to me that these decisions dispose of the contention that the adoption of the. second defendant by Ramakkal was valid. Ex. B on its face might be read as authorising each of the widows to make an adoption either simultaneously or one after the other, in which case there might be living contemporaneously two adopted sons to one man, a notion repugnant to Hindu law. Similarly it is contrary to the ordinary rule of Hindu law that when there are two widows they should be permitted to indulge in an unseemly scramble for priority in adopting a son to their deceased husband, the rule being that in such a case the senior widow should have the right which will only pass to the junior widow if the senior widow refuses to adopt or consents to an adoption by her co-widow. Applying this rule to the construction of Ex. B, we must, I think, infer an intention to authorise each of the widows to adopt, the procedure contemplated being that prescribed by the ordinary rules of Hindu law whereby the refusal to adopt by the senior widow or her consent would be a necessary preliminary to a valid adoption by the junior widow. On the findings of fact it must be held that there was no such refusal to adopt by the plaintiff nor was there any consent to the adoption. It follows that the adoption is invalid.
7. It has also been contended that the second defendant would be entitled to the property if not as an adopted son at least as a persona designate,. There is no force in this contention. The deed of adoption Ex. II makes it clear that the rights thereby con ferred upon the second defendant are conferred solely and only by virtue of the adoption made under it. It is not the case of a gift to an individual with an erroneous description of that individual but a case of the performance of a formal act by virtue of which, the rights in the property would accrue. The formal act being invalid no rights can pass under it.
8. In the result therefore the appeal is dismissed with costs of the first respondent (plaintiff).
9. Leave to appeal is refused.