1. This Second Appeal has opened a very wide field in the Hindu Law of adoption and we have had a very learned and instructive argument on both sides and I should like to say personally that I feel very much indebted to the learned Advocates who appeared. The question opened up by the arguments have been very far-reaching and several topics perhaps not strictly germane to the actual point for decision have been touched upon, but this is only an illustration of the way in which the different elements in the Hindu Law of adoption interact upon each other and it is almost impossible in discussing the case-law, on which after all the law of adoption is developed at least as far as this Presidency is concerned and on which it now depends, not to discover a great variety of elements which largely overlap. Thus we shall find in the cases to be examined that most of them deal with more than one of these elements and the question which presents the greatest difficulty is as to how far the decisions and particularly the dicta on which the decisions seem to be based are reconcilable and whether it is possible to obtain from the present state of those decisions any really definite line to guide us to a decision on this and similar cases.
2. The facts of this case can be stated in a very few words. The 1st defendant had a son called Abbulu and they formed a joint Hindu family. This son Abbulu on the 30th August, 1918, gave his wife an authority to adopt. A month afterwards, namely, on the 29th September, 1918, the son Abbulu died and four days after that on the 3rd October, 1918, the father settled practically the whole of the family property on his daughters. On the 22nd Nov. 1918, the plaintiff was adopted by Abbulu's widow and in 1919 this suit was brought on behalf of the minor adopted son claiming a half share on partition with his adoptive grandfather who died while the suit was pending in the First Court. Hence the plaintiff now claims to be entitled to the whole of the family property. The question thus arises whether the plaintiff receives practically nothing, i.e., takes the family property subject to the settlement of the 3rd October, 1918 or whether his adoption can relate back to the date of his adoptive father's death, namely, the 29th September, 1918 in order to defeat the grandfather's settlement. The Munsif decided that the plaintiff was entitled to the properties. The Subordinate Judge decided on the other hand that the plaintiff must take subject to the disposition by the grandfather, i.e., as I understand it, practically nothing.
3. This appeal therefore opens up questions of the highest importance which owing, as I think, to the interaction of the elements in the Hindu Law of adoption do not perhaps appear very clearly from the decided cases, so that we shall have to consider (a) the nature of the estate taken by the surviving member of a coparcenary when the only other member has died leaving a widow with power to adopt, and (6) the position of a donee of the surviving member in competition with a subsequently adopted son; in other words, does the settlement by the grandfather of the 3rd October, 1918 divert the course of devolution of the property under the Hindu Law? And this of course opens the first of these questions, namely, the estate of the surviving member.
4. Perhaps it is as well to begin an examination of the authorities with a text and the text that I would begin with can be found in Mayne, para. 198 (9th Edition). This paragraph of Mayne comes after a discussion, of which there are many examples in the cases, on the power of an adopted son to challenge alienations made prior to his adoption by the widow who adopts him. Mr. Mayne says:
I am not aware of any case which has raised the same question, where the person whose estate was divested by adoption was a male, and therefore a full owner. But I conceive the same principles would apply. Until adoption has taken place he is lawfully in possession, holding an estate which gives him the ordinary powers of alienation of a Hindu proprietor. No doubt he is liable to be superseded; but on the other hand, he never may be superseded. It would be intolerable that he should be prevented from dealing with his own, on account of a contingency which may never happen. When the contingency has happened, it would be most inequitable that the purchaser should be deprived of rights which he obtained from one who, at the time, was perfectly competent to grant them.
5. Of course if that text can be taken to be literally true and correct, there is an end of the matter and till the adoption has taken place, the grandfather was in the position of full owner and could do what he liked with the property and therefore pass by his settlement a perfectly valid and indisputable title to his donees. But Mr. S. Varadachariar challenges the accuracy of this absolute statement and undertakes to show from the authorities that it needs very considerable modification. In fact his contention may be fairly indicated by saying that no Hindu is an absolute owner so long as there is a power of adoption outstanding which, if and when exercised, will diminish his interest in the family property by one-half. This has been called by Mr. Justice Seshagiri Aiyar in Madana Mohana v. Purushothama : (1914)27MLJ306 , 'an estate subject to defeasance.' With great respect, I rather doubt if that is the correct expression to apply to an estate of this kind which is of course familiar to every Hindu--I mean the possibility of the interest of one--coparcener in joint family property being increased or decreased on partition according as more coparceners come into being or coparceners go out of being. That is inherent in the conception of a Hindu joint family. What I take the learned Judge meant is, that, where you have a single coparcener, though he still remains owner of the whole on the birth or coming into existence of a second coparcener, still on a division he has lost the absolute estate which he had as sole surviving member of the coparcenary but will now only be able to take as his separate property one-half of the whole or less according to the number of new members, so that the theory with regard to the surviving member of a coparcenary in the position of the grandfather in this case is that so long as the power to adopt is outstanding he has really only got an absolute estate in a half because, if and when an adoption to his deceased son takes place, that adopted son becomes immediately a coparcener with himself, entitled to half of the property on a partition. So that what we have to see is whether this theory is supported by the decision, and even supposing it is so supported, is it to apply to alienations made by the adoptive grandfather before the adoption took place? It is settled that an after-born aurasa son cannot question the alienation made, e.g., by the manager of his coparcenary, his father, prior to his birth and it seems startling- if it is true that an adopted son should be in any better position. Many inconveniences suggest themselves to the mind if this theory is true as, for instance, the effect it would have on succession, for it would make all succession provisional. It would add a further element of infirmity to titles to immoveable property in this country because it would be necessary to enquire on every transaction involving immoveable property whether there was an outstanding authority to adopt because, if there were, on this theory the transferor would not have absolute power to alienate more than one-half. However, inconvenience is of course by way of being an argument in the last resort. Although enough has been said to show that, if the argument is adopted, an extremely serious state of things may ensue, yet if the law is as stated in the proposition, then of course the fact that it entails inconveniences or infirmities of title is no excuse for evading its recognition.
6. This theory advanced by Mr. Varadachariar is according to his contention illustrated in a number of cases and, as I have already stated, the cases are what we have to look to in a matter of this sort, because as is well known, the ancient texts are singularly bare of authority with regard to adoption and the law on this subject has been practically entirely Judge-made. The cases, I have analysed under three heads. Although as will presently appear the decision in any particular case may overlap more than one head, that is an illustration of what I was saying just now as to the interaction of the various elements in this branch of the Hindu Law. The heads that I propose to examine the cases under I have called
(a) as affecting inheritance,
(b) with regard to the doctrine of relation back, and
(c) as affecting alienations.
7. I have dealt with the cases under each head repeating if necessary reference to the same case when it falls under more than one head.
(a) The earliest case to which our attention has been called is the well-known case in Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 Moo. I.A. 169. That was a case in which the Sudder Dewanny delivered a very full judgment covering a number of points in the law of adoption and which the Privy Council adopted in its entirety both upon the question of law and the question of fact save for one incidental observation which is not material. That decision inter alia laid down that until a widow exercised the power of adoption vested in her, she is possessed of the property from the death of her husband and can therefore sue in her character as widow in order to claim succession to the estate of her husband in spite of the fact that she possesses an unexecuted power of adoption. In Mussamut Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 Moo. I.A. 279 we have an example of the limit on the power to adopt. Several cases were quoted with regard to the limit of the power, (i.e.), as to when it comes to an end because as their Lordships laid down in the case last cited, there must be some limit, but that seems to me to be a definite topic that we can dispense with in considering the case before us. Then we have the cases from the Chinnakimidy Zamindari beginning with Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo I.L.R. (1876) M. 69 : L.R. 3 IndAp 154, where it was contended that the widow could not displace by adoption an heir in whom the estate had once vested. It was a case of an impartible estate where the widow of the senior coparcener and late Zamindar adopted two years after his death and divested the late Zamindar's next younger brother who had succeeded to the Zamindari on his death in 1868. The Privy Council held that on the widow exercising the power conferred on her by the late Zamindar to adopt, the adopted son divested his uncle, though in the case of the youngest brother of the late Zamindar who also had an adopted son, it was held that there was no relation back in the case of an adoption by a male. Now this case is cited to show that the estate of the next younger brother was only conditional till a possible adoption took place. At the same time their Lordships point out at page 83 that 'at that time Raghunada (that is to say, the next younger brother) was in default of a son of Adikonda (the deceased Zamindar) natural or adopted, unquestionably entitled to the Zamindari.' The case is also of importance from the fact that their Lordships of the Privy Council decreed mesne profits against Raghunada only from the date of suit, which shows of course that he was not a trespasser as he was entitled in default of a nearer heir of Adikonda. It is important to note this feature in the case as it is relied on in a subsequent case for another proposition under one of the several heads. Madana Mohana v. Purushothama : (1914)27MLJ306 referred to supra and Madana Mohana Deo v. Purushothama Deo are further cases as to the succession to this same Chinnakimidy estate. These cases involved the power of the widow of Adikonda to adopt when there was the son's widow alive who might have adopted to that son. The plaintiff who had been adopted in 1907 by the widow of Adikonda claimed the property as against the son's sons of Raghunada, the younger brother of Adikonda. Mr. Justice Seshagiri Aiyar pointed out that a Hindu estate can never be in abeyance but must vest in somebody or other. The 'intermediate holder' as he was called is not to be regarded as the absolute owner of the property. This case went up to the Privy Council in Madana Mohana Deo v. Purushothama Deo where their Lordships held that the succession of Raghunada was only provisional and that the widow of Adikonda can have had no further right to adopt after the death of her original adopted son who had attained full legal capacity to continue the line. The third of the Chinnakimidy cases is Bheema Deo v. Behari Deo (1921) L.R. 48 LA. 482 : I.L.R. 44 M. 733 : 41 M.L.J.(pc) 648 where it was held that the estates of Viswanatha and Purushottam, that is, the son and grandson of Raghunada, were defeasible estates. The question involved in this case was the validity of the adoption made by Ratnamala, the widow of the first son adopted to Adikonda. To continue the cases in the order of date Krishna v. Sami I.L.R. (1885) M. 64 shows that the existence of the power creates the potentiality of inheritance. As pointed out in Babu Anaji v. Ratnoji Krishnarav I.L.R. (1895)B. 319 the effect of adoption must always be to divest to some extent an estate vested elsewhere. Venkappa Bapu v. Jivaji Krishna I.L.R. (1900) B. 306 was a case of limitation on a widow's power to adopt which the learned Judges said depended upon the question as to whether by such adoption she derogates from any other rights but her own and in Bachoo v. Mankorebai I.L.R. (1904) B. 51 on appeal I.L.R. 31 B. 373 which went to the Privy Council in Bachoo v. Mdnkorebai I.L.R. (1904) B. 51 on appeal I.L.R. 31 B. 373,it was decided that the estate had not absolutely vested in one Bachoo, the plaintiff in the suit, owing to the existence of a power in the widow of Bhagwandas to adopt. Their Lordships applied the decision in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo I.L.R. (1870) M. 69 : L.R. 3 IndAp 154 that the estate did not absolutely vest and this may be an example of the diminution of the interest of a sole coparcener by the emergence of another which was referred to in the opening of this judgment. Pratapsingk Shivsingh v. Agarsingji Rajasingji (1918) L.R. 40 IndAp 97 : I.L.R. 43 B. 778 : 36 M.L.J. 511 in the Privy Council was a question of succession to a Jivai grant. There it was held that there was no hiatus in the succession and no extinction of the line until the death of the widow without having adopted. Now, it will be apparent from a consideration of these cases and the decisions which have been extracted above that all these cases have in view mainly the question of inheritance and as Mr. Varadachariar suggested and as we shall see when we come to consider the class (b) cases as to relation back that two theories are possible, namely, that the existence of the deceased husband is fictionally prolonged in his widow or that the adoption of the son is fictionally related back to the death of his adoptive father. As to which if either is the correct theory I am rather doubtful whether it can be established from the decisions. The former theory is favoured by Messrs. West and Buhler who on page 983 of their work state:
It is true that in many instances the supposed prohibition (i.e., against adoption) coincides in its operation with the actual principles of the Hindu Law as drawn from the Hindu sources, but in others it docs not. It is desirable, therefore, that these principles and their bearing on the matter in question should, if possible, be ascertained and established. The sacra of a Hindu family arc regarded as descending regularly with its estate from father to son for ever.
8. The widow's life is, in the view of the learned authors, a prolongation of her husband's and her adoption to her deceased husband simply a deferred act of the husband himself.
(b) I want now to take the second class of cases and see if the decisions in which this theory of relation back has been applied has, as Mr. Alladi Krishnaswami Aiyar contends, nothing to do with any question of validating or invalidating alienations but only to do with the question of divesting intermediate holders by the fiction that the adoption took place either at the same moment or prior to the possession obtained by the person or persons so divested. I gather there arc only some eight decisions on this point of relation back. The earliest and the one very often relied on is Bamundoss Mookerjea v. Mussamul Tarinee (1858) 7 Moo. I.A. 169, though how far this reliance is now well founded may perhaps be questioned owing to the view of the Privy Council in Pratapsingh Shivsingh v. Agarsingji Rajasingji (1918) L.R. 46 IndAp 97 : I.L.R. 43 B. 778 : 36 M.L.J. 511, where they held that this case only decided as to a widow's right to maintain an action in her own name when she possesses a power to adopt. There the Sudder Dewanny said:
The after-born soil's right is to his share of the estate as it stands at the time of his birth, and not retrospectively with reference to its state at any supposed period of his conception.
9. So in Lakshmana Rau v. Lakshmi Ammal I.L.R. (1881) M. 160 where Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 Moo. I.A. 169 is relied on, it was held that the title of an adopted son does not relate back to the death of the widow's deceased husband. Further in Moro Narayan Joshi v. Balaji Raghumath I.L.R. (1894) B. 809 which was a question of limitation, adverse possession was said not to begin to run till adoption and the adoption did not relate back to the adoptive father's death again relying on Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 Moo. I.A. 169. In Babu Anaji v. Ratnoji Krishnarav I.L.R. (1895) B. 319 it was held that for purposes of inheritance the adoption must be considered as relating back to the death of the adoptive father--compare Mata Prasad v. Nageshar Sahai (1925) L.R. 52 IndAp 398 : I.L.R. 47 A. 883 : 50 M.L.J. 18,where the adoption of a boy was related back to the death of the father to whom he was adopted. In Harek Chand Babu v. Bijoy Chand Mahatab (1905) 9 C.W.N. 795, another question of limitation, Harington, J., held that for certain purposes an adopted son is regarded as being in existence at the adoptive father's death. On the other hand, Mookerjee, J., held that the rights of an adopted son did not relate back to a period earlier than the date of adoption. Of authority in this Court as to relation back, there is but little. In Madana Mohana Deo v. Purushothama Deo , to which reference has already been made, it was observed that Adikonda's widow at one time by exercising her power could establish the direct succession to the estate of her husband which related back to his death. In Pratapsingh Shivsingh v. Agarsingji Rajasingji (1918) L.R. 46 IndAp 97 : I.L.R. 43 B. 778 : 36 M.L.J. 511 to which also reference has already been made, it will be remembered that the Privy Council held that there was no hiatus in the continuity of the line and that so far as this is concerned the adoption had a retrospective effect.
(c) Now it seems to me from my examination of the cases that the only case in which it can be said that the adopted son can on the theory of relation back object to alienations made before his adoption is confined to the case of alienations by a widow. It is well known that a reversioner may object successfully to a widow's alienations except for family necessity while the estate of her husband is in her hands, she possessing a Hindu widow's estate in the same. It is of course also well known that since Vaidyanatha Sastri v. Savithri Animal : AIR1918Mad469 an adopted son can set aside alienations by the widow not made for necessity during her life-time, his cause of action having arisen from the date of adoption. He is thus in a better position than the ordinary reversioner with regard to a widow's alienations and it is perhaps significant that in Sarkar's learned exposition on the law of adoption, to which we have been referred, in his paragraph on page 416 on the relation back of adoption and alienations made by a widow before adoption, his discussion is entirely confined to the rights and acts of the widow. As Sir Arnold White, C.J., said in Sivagnanam Servaigar v. Rama-swami Chettiar (1911) 22 M.L.J. 85 the question of the effect of an alienation by a man holding a full estate with reference to a subsequent divesting as the result of a subsequent adoption does not seem to have been considered in any reported case. That case is of importance because it is a clear authority for the decision that when an estate is divested by subsequent adoption, the adopted son's rights date only from his adoption and therefore he takes the estate subject to alienations by the holder for the time being. Bamundoss Mookerjee v. Mussamut Tarinee (18S8) 7 Moo. I.A. 169 is relied on as also Harek Chand Babu v. Bijoy Chand Mahatab (1905) 9 C.W.N. 795, Sir Arnold White also relies in his judgment on Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo where it will be remembered the Privy Council decreed mesne profits against the intermediate holder only since the date of the suit to show that the male owner can deal as he likes with his own. In Rambhat v. Lakshman Chintaman Mayalay I.L.R. (1881) B. 630 it was held that alienation by a Hindu without issue binds the subsequent born or adopted male issue and such issue take a vested interest in such property only as is that of the father at that time. In Moro Narayan Joshi v. Balaji Raghunath I.L.R. (1894) B. 809 it was held that the adopted son 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 unauthorised alienations of the widow. The well-known case in Sreetramulu v. Kristamma I.L.R. (1902) M. 143, which was subsequently overruled in this Court, contains Justice Sir V. Bhashyam Aiyangar's view that all alienations of any kind by a Hindu widow are valid at least for her widowhood. She takes an estate of inheritance only restricted as to her power of disposition and she is not guardian of the property, so that even an unauthorised alienation, i.e., one not for family necessity, cannot be questioned until after her death. In Ramakrishna v. Tripurabai I.L.R. (1908) 33 B. 88, Sreeramulu, v. Kristamma I.L.R. (1902) M. 143 was disapproved and the Court held that alienations not for necessity by a widow cease to have any effect after an adoption made by her as she has by then ceased to represent the estate. There is an obiter dictum in Maharaja of Bobbili v. Zamindar of Chundi I.L.R. (1910) M. 108 : 21 M.L.J. 593 to the effect that the 1st defendant's estate in that case was only that of a limited owner like a widow and not being absolute it could not validate loans and alienations but that cannot be regarded as a serious decision on the point as it is distinctly obiter and really turned on the question as to whether sufficient enquiry had been made by an intending lender. In Jaganndha Rao v. Kamayamma I.L.R. (1920) M. 189 : 1920 40 M.L.J. 46 a decision to which I was a party, a sole coparcener made a will having an absolute power of disposition. He appointed a guardian to manage the property and the son to be adopted after his death. We held that he had the power to do so. Finally, in Krishna-miirthi Aiyar v. Krishnamurthi Aiyar I.L.R. (1927) M. 508 : 53 M.L.J. 57 their Lordships of the Privy Council say as follows:
When a disposition is made intra vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For the will speaks as at the death of the testator, and the property is carried away before the adoption takes place.
10. It is suggested that that decision of their Lordships cannot stand in view of what is said in their earlier decisions but it seems to me that if we construe the earlier decisions I have quoted, apart from those referring to alienations by a widow, as applying entirely to matters of inheritance, i.e., continuity of line, divesting of an intermediate holder, fiction that the adoption is a deferred act by the father, that his life is prolonged in the widow, or that the adoption relates back, we shall find that all these fictions are simply introduced for the purpose of introducing a new heir into the succession, the ordinary rule being that when the succession opens, there must be, as so often pointed out in the decisions referred to above, somebody to take the property even if he is only a temporary or intermediate holder. There must; in a word, be somebody to catch the property when the previous holder relaxes his possession of it. So that, adoption regarded of course by Hindus, as of the extremest importance from both spiritual and temporal points of view, is really an exception to the rule that the successor must be in existence to take the property immediately the succession opens. The fact cannot but be recognised that there is in reality no such successor in the case of adoption by a deceased coparcener's widow, so that various devices and fictions have had to be invented to place the adopted son in the same position as a natural son, that being according to the texts and the judicial authorities his proper position. See Pratapsingh Shivsingh v. Agarsingji Rajasingji (1918) L.R. 46 IndAp 97 : I.L.R. 43 B. 778 : 1918 36 M.L.J. 511
11. My opinion therefore is that the doctrine of relation back has nothing to do with a last male holder. It seems to me that a sole surviving coparcener has always been regarded as the owner of the coparcenary property. The theory of relation back has only to do with establishing a line of succession to the adoptive father and in order to establish that line, it is necessary that certain intermediate holders should give way to the adopted son's superior claims as that of a natural born son of his adoptive father. There are limits. We have seen some of them but I have not discussed all the cases in this connection regarding his power of divesting as for instance when the succession to the property gets into a collateral line. But within these limits, he can so to speak insist on the property devolving in a direct line as far as possible from father to son or from grandfather to grandson and it is in this connection and this alone that the doctrine of relation back and the cases I have quoted in the first category of inheritance are to be regarded. What authority there is with regard to alienations by a male holder is strongly, and it seems to me conclusively, against the contention argued by the appellant. We cannot conclude that the Privy Council in Krishnamurthi Aiyar v. Krishnamurthi Aiyar I.L.R. (1927) M. 508 : 53 M.L.J. 57 were oblivious of their previous decisions and it seems to me that their Lordships must clearly be held to distinguish the case of interference with alienations from cases of divesting on the theory of relation back or any theory of continuity of succession or no hiatus in the line as they put it in Pratapsingh Shivsingh v. Agarsingji Rajasingji (1918) L.R. 46 IndAp 97 : I.L.R. 43 B. 778 : 1918 36 M.L.J. 511.
12. For these reasons, I am of opinion that the learned Subordinate Judge was right and this Second Appeal must be dismissed. We think that each party should bear their own costs throughout.
Venkatasubba Rao, J.
13. I agree.
14. This appeal raises an important question, which may be stated in this form; when in a joint family, the property on the death of a coparcener is taken by the surviving member and he alienates it either wholly or in part, what are the rights of a son subsequently adopted by the deceased member's widow in regard to the alienations already made?
15. The facts of the case may be briefly stated. The 1st defendant and his son were the only members of a joint Hindu family. Before his death, the son (against the wishes of the father) gave his wife authority to adopt. In less than a month the son died and, on the fifth clay after his death, the father settled all the joint family property on his daughters. The son's widow, about fifty days thereafter, made an adoption and the minor plaintiff is the adopted son. He filed the present suit against his adoptive grandfather (1st defendant) for partition of the joint family property. He impleaded the alienees and attacked the settlement and asked for a declaration that it was not binding upon him. While the suit was pending, the grandfather (the 1st defendant) died and the action was converted into one for possession of the entire property. The Lower Appellate Court disagreeing with the District Munsif dismissed the suit holding that the plaintiff is not entitled to impeach the alienation made before his adoption. The question is, what is the effect of the adoption on the settlement previously made?
16. The main contention advanced by Mr. Varadachariar for the appellant in his able and interesting argument is, that the adoption whenever made by the widow dates back to the death of her husband and that the rights of the adopted son must, subject to a narrow exception, be determined on that footing. He presents the same argument in another form. When a Hindu dies leaving a widow, the estate, by whomsoever it is taken, vests in that person only provisionally. If the intermediate holder (as the person in whom the estate vests is called) is no more than a provisional heir, it follows, Mr. Varadachariar contends, that his alienee cannot be in a better position than himself, the alienor. He puts his argument somewhat thus. The legal effect of an adoption made by a widow is that the adopted son devests the estate in the hands of a third party, whether that person is the widow herself or some other inferior heir. How can this devesting be accounted for except on the hypothesis that the adoption dates back to the death of the husband? The governing principle according to him is, that so long as there is the widow alive, there is potentiality of inheritance, for by making an adoption, she brings an heir into existence whose title is retrospective. According to the Hindu Law, he contends, there is no gap between the adoptive father's death and the adoption itself. This is said to rest on one of two fictions : the personality of the deceased husband may be supposed to survive in the widow (that is, the dead husband never died); or, the adoption may be antedated (that is, the non-existing person existed), the result in either case being, that there is no hiatus in the continuity of the line.
17. Our attention has been drawn to various passages either in judgments or text-books, which have recognised one or the other of the theories to which. I have adverted. In Mussamut Bhooban Moyee v. Ram Kishora Acharj Chowdhry (1865) 10 Moo. I.A. 279 the Judicial Committee after negativing the power of a mother to adopt on the death of her son leaving a widow observed thus at the close of their judgment at p. 312:
An additional difficulty in holding the estate of the widow of Bhawani Kishore (the son) to be devasted may perhaps he found in the doctrine of Hindu Law, that the husband and wife are one, and that as long as the wife survives, one-half of the husband survives; but it is not necessary to press this objection.
18. In Krishna v. Sami I.L.R. (1883) M. 64 (F.B.) the sons of a deaf and dumb member of an undivided Hindu family were held entitled to a share of the family estate in the lifetime of their father, notwithstanding that they were born after the death of their grandfather. Sir Charles Turner, C.J., in delivering the judgment of the Full Bench referred by way of analogy to the position of an adopted son and after citing Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Palta Deo observed thus:
The existence of valid power created a potentiality of inheritance which may be likened to that of a son in the womb. The estate is taken conditionally.
19. This was referred to as an example in support of the conclusion that in certain cases the Hindu Law recognises devesting. Having thus cited the case of an adopted son as an instance, the learned Chief Justice, for further elucidation, compared an adopted son to a posthumous son.
20. In Babu Anaji v. Ratnoji Krishnarav I.L.R. (1895) B. 319 the adoption in regard to its effect was treated as relating back to the death of the adoptive father. The intermediate estate was referred to in the judgment as having vested conditionally. These are the observations that are now relied on by the appellant.
21. Then we come to two recent cases of the Privy Council on which he strongly relies. The first of them is Madana Mohana Deo v. Purushothama Das . To understand the argument founded on this case, one has to turn to the pedigree given in the judgment. Their Lordships refer to the adoption of Brozo Deo as relating back to the death of Adikonda. Raghunada's succession is described as being provisional and subject to defeasance by the emergence of a male heir, to Adikonda. It is on these expressions that the learned Counsel reliefs. We are not concerned in the present enquiry with the actual decision in the case or the reasons on which it rests; nor is it necessary to examine whether this case affects (as is suggested) the authority of any earlier rulings on the subject of adoption.
22. Now turning to the second Privy Council case, Pratapsingh Shivsingh v. Agarsingji Rajasingji (1918) L.R. 46 IndAp 97 : I.L.R. 43 15. 778 : 1918 36 M.L.J. 511,the point actually decided was that an adopted son, quite as much as a natural son, would prevent the grant from reverting. In affirming the right of the adopted son, their Lordships proceed on the analogy of a posthumous son and observed at page 108:
But it was admitted that a posthumous son would prevent the reversion. If the widow happened to be enceinte, the reversion naturally would remain in suspense until the birth of the child, to see whether it Vatti Kuti was a male or a female, ft is futile, therefore, to say that the property Veeranna reverts to the grantor's estate immediately the breath leaves the body of Katuri the Jivaidar.
23. From those observations found in the various judgments, Venkata-can a principle of general application be deduced? Can it be subbarao, J. inferred, for instance, that the position of an adopted son is in every respect similar to that of a posthumous son? To explain certain legal results, this theory of relation back has been adopted. Can it be accepted as an inflexible legal formula on the ground that every rule must be logically applied? The theory is, that a Hindu cannot be said to have died without male issue, until the death of the widow, makes adoption impossible; in other words, so long as the widow is alive, there is the possibility of an heir coming into existence. (West and Buhler, 4th Ed., p. 890, Pratapsingh Shivsingh v. Agarsingji Rajasingji (1918) L.R. 46 IndAp 97 : I.L.R. 43 B 778 : 1918 36 M.L.J. 511 ). Supposing this doctrine is carried to its logical results, what follows? The mere fact that the widow of a deceased member exists, hinders the male owner from dealing with, what is presumably, his own property. The widow may never adopt and yet the fetter is quite effectual. If the widow happens to outlive the surviving coparcener, the restriction on his power lasts till his death. With the conception that a widow has limited powers over property, the Hindu Law has made us familiar; but the doctrine we are now asked to accept leads to the starting result that the position of a male proprietor is infinitely worse than that of the widow under the Law. As Mayne observes:
It would be intolerable that he (a Hindu proprietor) should be prevented from dealing with his own, on account of a contingency which may never happen. When the contingency has happened, it would be most inequitable that the purchaser should be deprived of his rights which he obtained from one, who at the time was perfectly competent : to grant them'--9th Ed., para. 198.
24. Granting that the alienee satisfies himself that the widow had no pre-existing authority from her husband to adopt, is he even then safe? She may adopt in the absence of her husband's authority in this province with the consent of the sapindas and in Bombay even without such consent. The result is, that in no circumstances can a male coparcener give a valid title, so long as there is a widow in the family alive. Then again, in a joint family any one at his will may sever himself from his coparceners and deal freely with the property that falls to his share; but, according to the theory put forward, the last survivor, where a widow exists, is helpless and without a remedy. Is there anything that compels us to enforce a rule leading to such strange results? The contention seems on the contrary to be inconsistent with well-established principles of the Hindu Law. It is a normal incident of a joint family that a bare possibility of a concurrent interest : coming into existence imposes no fetter on alienation. A sonless father enjoys power of alienation without restraint; with the son, the fetter comes into being and on his death the father's full rights re-emerge. But according to the contention advanced, the restriction depends not on the existence of a concurrent interest but upon the possibility of such an interest coming into being. That the rule. Mr, Varadachari contends for, cannot be applied without some reservation, he himself is constrained to admit. Any alienation for a necessary purpose, he concedes, would be binding on the adopted son. This is scarcely consistent with his main argument; for, where is the question of a necessary purpose in the case of a provisional owner? In other words, he is willing to import into this branch of the law considerations pertaining to a Hindu widow's estate. He is driven again to suggest that the theory of provisional vesting may be confined to the possible share of the future adopted son. This is a conception unknown to the Hindu Law.
25. The doctrine of relation back has been discussed in several reported cases and the Courts have refused to extend its application. In regard to a widow's alienation, a different test is not applied in the case of an adopted son from what is applied in the case of a reversioner; her dealing with the property is not dealt with on the footing of her being the guardian of a possible adopted son. In Lakshmana Rau v. Lakshmi Ammal I.L.R. (1881) M. 160 the contention was put forward that the title of the adopted son related back to the death of the adopting widow's husband (see page 162). The learned Judges observe:
In the interval then between the death of her husband and the exercise of the power, the widow's estate is neither greater nor less than it would ,be if she enjoyed no such power or died without making an adoption. She has the same power no greater and no less to deal with the estate. Such acts of hers as are authorised and would be effective against reversioners will bind the son taken in adoption. Such acts as are unauthorised and in excess of her powers may be challenged by the son adopted or by any other successor to the estate.
26. In that case Bamundoss Mookerjea v. Mussanut Tarinee (1858) 7 Moo. I.A. 169 was referred to and treated as authority for the proposition.
that an authority to adopt a son possessed by a widow does not supersede or destroy her personal rights as widow and that those rights continue in force until an adoption is actually made.
27. In Bhubaneswari Debi v. Nileomul Lahiri ,in the case of a succession to a collateral relation, the doctrine of relation back was not applied. It was laid down in that decision that an adoption after the death of a collateral does not entitle the adopted son to come in as an heir. In Moro Naram Joshi v. Balaji Raghunath I.L.R. (1894) B. 809 the question was whether the suit of the adopted son to recover possession was barred. Farran, J., after stating that under Article 144 limitation runs from the date when the possession of the defendant becomes adverse to the plaintiff, observes:
His adoption, however, does not relate back to the death of his adoptive father.
28. It was held that the suit was not barred by limitation. In Harek Chand Babu v. Bejoy Chand Mahatab (1905) 9 C.W.N. 795 Mookerjee, J., examines the authorities on the subject fully and comes to the conclusion that the fiction that the adopted son was in existence at the death of the husband cannot be applied for the purpose of enabling the son to take the property as it stood at the moment of the death of the person to whom he was adopted by ignoring the previous acts of the adoptive mother or other persons whose estate is divested by the adoption. This point is discussed in connection with the question of limitation; but the observations made have a direct bearing on the present case. The learned Judge say's:
He (the adopted son) cannot dispute the previous acts of the adoptive mother unless they were in excess of her legal powers as widow in possession, nor can he question the acts of a previous male holder in whom as a member of a joint Mitakshara family the property had vested as full owner and whose estate was divested by adoption.
29. In Jagannadha Rao v. Ramayamma I.L.R. (1920) M. 189 : 1920 40 M.L.J. 46 it was argued that a son adopted by a widow under authority stands in exactly the same position as a posthumous son and that in his case also the appointment of a testamentary guardian is incompetent. For this proposition reliance was placed upon the case already quoted, Pratapsingh Shivsingh v. Agarsingji Rajasingji (1918) L.R. 46 IndAp 97 : I.L.R. 43 B. 778 : 1918 36 M.L.J. 511 , Ayling, J., and my learned brother who heard the case repelled that argument. Mr. Justice Ayling made an observation with which I entirely concur:
This process of argument is attractive, but we must be on our guard not to follow it too blindly.
30. In Ganapati Aiyan v. Savithri Ammal I.L.R. (1897) M. 10 a Hindu, shortly before his death, directed his widow to employ a part of his property in the upkeep of a charitable institution and at the same time empowered her to make an adoption. Accordingly, the widow, ten days after her husband's death, executed a document creating a charitable trust and some time later made an adoption. It was contended that the title of the adopted son related back to the date of his adoptive father's death, and that as the document was later, the alienation was not binding on the son. Subramania Aiyar, J., summarily rejects the contention remarking:
The first part of the contention may be dismissed from notice, for it it too late to question the doctrine that the adopted son's rights arise from the time of the adoption.
31. It is unnecessary to refer to the other cases cited, which have only an indirect bearing. The point directly arose in two cases. The first of them is Sivagnanam Servaigar v. Ramaswami Chettiar (1911) 22 M.L.J. 85. Arnold White, C.J., and Phillips, J., held that the adopted son took the property subject to the mortgage created by the intermediate holder. The passage from Mayne, which I have extracted above, is relied on by the learned Chief Justice. This case is a direct authority against the appellant's contention. The second case is Maharaja of Bobbili v. Zamindar of Chundi I.L.R. (1910) M. 108 : 1910 21 M.L.J. 593. Some dicta in this case which are obiter are relied on for the appellant. The case relates to an impartible zamindari. Certain debts incurred by an intermediate holder were held binding on an adopted son who divested the former's estate. In that case, the learned Judges (Abdur Rahim and Krishna-swami Aiyar, JJ.) held on the facts that there was enquiry by the lender, which was reasonably sufficient to justify the loan so as to make it recoverable from the estate. As the debts were held to be binding on the limited ground, it became unnecessary to deal with the contention that was put forward, namely, that the intermediate holder was the full owner and therefore could deal with the property just as he pleased. The rival contention advanced was, that the intermediate holder occupied the position of the holder of a life-estate. This contention was negatived and in the course of the judgment the following observation was made:
The analogy of the 1st defendant's (intermediate holder) estate is rather to that of limited owner like a widow than to that of a life owner.
32. It will thus be seen that in this case, although the learned Judges were inclined to hold that the powers of an intermediate holder were restricted, they did riot decide the point, whether or not he possessed plenary powers. With the obiter dicta in this judgment, with great respect, I am unable to agree.
33. In the view I take, it makes no difference whether the alienation was or was not for value--though I may state that I regard the alienation in the present case as purely voluntary.
34. The appellant's contention is thus against principle and opposed to authority. It introduces, as Mr. Krishnaswami Aiyar has forcibly pointed out, a novel and perplexing rule into the law of adoption. It is too obvious to need mention that the conduct of the 1st defendant was morally wrong; but that cannot affect our decision.
35. The judgment of the learned Subordinate Judge is upheld and the Second Appeal is dismissed. Each party shall bear his costs throughout.