Walter Salis Schwabe, K.C., C.J.
1. The facts of this case are, one Venkata Somayajulu died leaving a widow and a son, Subbanna Sastri. The son died 26 years ago unmarried at the age of 25. In 1913, the widow adopted the second' defendant with the consent of the sapindas as the son of her late husband. The question to be decided is whether this adoption is good or bad.
2. That a Hindu widow can adopt a son in order to carry on the line and provide for the due performance of the obsequies of her husband, either with the authority of the husband or with the consent of the husband's sapindas, is well established in this Presidency. It is also well established that this power of adoption can be exercised on the death of a son or adopted son, as often as occasion arises: but it is also established that there is some limit to the exercise of this power and that it can become exhausted. It is argued in this case that the limit is reached as soon as a son, natural or adopted, either marries or attains an age, which is put alternatively as that of attaining majority, that is 18, or that of attaining full legal capacity to himself adopt a son, which was held in Tarachurn Chatterjee v. Sureshchunder Mukerjee I.L.R. (1889) Cal. 122 to be sixteen. No direct authority for this proposition can be found in any of the Indian Reports, but it is based on a dictum of the Privy Council in Madana Mohana Deo v. Purushottama Deo 35 MLJ 138 , which I will deal with more fully hereafter. The limit to the authority to adopt is stated in the judgment of the Privy Council in Mussammat Bhoobunmoyee Debia v. Ramakishore Acharj Choudhnry (1865) 10 M.I.A. 279 , which judgment was explained and the principle re-affirmed in Pudma Coomari Debt v. The Court of Wards 8 C. 302 and Thayammal v. Venkatarama 10 Mad. 205. The prin ciple to be deduced from these three cases is stated in the judgment of Chandravarkar, J. in the Full Bench case of Kamakrishna v. Sham Rao I.L.R.(1902) 26 Bom. 526 thus: 'Where a Hindu dies leaving a widow and a son, and that son himself dies leaving a natural born or 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 can never afterwards be revived. 'The principle so laid down has the approval of the Privy Council in Madana Mohana Deo v. Purushothama Deo 35 MLJ 138. No subsequent adoption will be allowed, which will divest a right vested by inheritance in some person other than the son or the mother herself as representing the son. So, if a son dies leaving either a son or a widow, the mother can no longer adopt as the estate is vested in the son's son or if there be no sons, in his widow, she having a right to adopt a son to her husband. There is direct authority that the limit is not reached when the son dies though of age without leaving a son or widow in Venkappa Bapu v. Jivaji Krishna I.L.R.(1901) 25 Bom. 306 where a son had attained the age of 30 before his death and had married but left no widow, and in Sangappa v. Vyasappa 8 Bom. P.J. 684 , where he attained the age of 30 and died unmarried. This very point was also mentioned in Mussammat Bhoobun Moyee Debia v. Ram Kishore Acharji Choudhury (1865) 10 M.I.A. . 279 in the judgment of Lord Kingsdown, where he stated, 'If Bhowanee Kishore (that is, the son) had died unmarried his mother would have been his heir and the question of adoption would have stood on quite different grounds. By exercising the power of adoption she would have divested no estate but her own, and this would have brought the case within the ordinary rule. 'The ordinary rule referred to there is, as I understand it, the rule subsequently so clearly stated in the judgment of Chandravarkar, J. This statement was obiter, but that is a clear indication of the then view of the Privy Council.
3. Turning now to Madana Mohan Deo v. Purushothama Deo 35 MLJ 138 , in that case a widow adopted a son who died leaving a widow, and it was held following the cases quoted above that the right of adoption by the first widow had been exhausted. But after approving the principle laid down in the judgment in Rama Krishna Ramachandra v. Shamrao Jeshwant I.L.R.(1902) I.L.R. 26 Bom. 526 , their Lordships stated that they were of opinion that 'the principle must be taken as applying so as to have brought the authority to adopt conferred on the first widow to an end when the son whom she had 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. ' It is to be observed that it does not say, 'after himself attaining full age or the right to adopt a son. 'Their Lordships however went on to say that 'they do not desire to be understood to say that, even in the absence of authority in the son's widow to adopt, the succession of the son and his dying after attaining full legal capacity to continue the line would not in themselves have been sufficient to bring the limiting principle into operation, and so to have so determined the authority of the first widow, who was not the widow of the last owner, and could not adopt a son to him. 'I understand this to mean that their Lordships wish it to be understood that they do not give any decision on the point, which is the point in this case, and perhaps indicate that the inclination of their minds was against the contention that such adoption was permissible. But the point was not before the Council and did not arise in that case, and it would be most dangerous to treat a dictum of that kind as an authority.
4. When a point directly arises for decision it is the duty of the Court to consider the point for itself, giving of course due weight to any words which fell, although obiter from their Lordships. I can find no authority in any decided case and the respondents have been unable to call our attention to any authority from the usual sources for ascertaining Hindu Law, in support of the proposition. If there is any such limits it is not in my judgment, open to us to find. it on the material before us. It is to be observed that in Veerabhai Ajubhai v. Bai Hirabai 27 Bom. 492, Lord, Lindley, in delivering the judgment of the Privy Council remarked referring to this point that no authority had been produced before the Privy Council in support of it. I wish to refer to two cases which give some appearance of support to the suggestion of the existence of this limit, viz., Ananda Bheema Deo v. Kunja Behari Deo (1918) 25 M.I.T. 204, the head note of which runs as follows: 'The power of a widow to adopt is not limited in point of time by the fact that a line of her husband's heirs have in succession come into possession of the estate. The limit to such power is when the husband's adopted son attains full age and so full capacity to continue the line by natural born sons or by adoption. That headnote is, in my judgment, incorrect, for the case does not decide anything of the kind. It is true that Wallis, C.J. in his judgment states that the Privy Council in Mussammat Bhoobun Moyee Debia v. Ram Kishore Acharji Choudhury (1865) 10 M.I.A. 279 so decided: but that observation does not appear to be borne out by a study of the judgment of the Privy Council in the case. It was unnecessary for the decision of the case in Ananga Bheema Deo v. Kunja Behari Deo (1918) 25 M.I.T. 204 , and must be treated as obiter. In Venkatarama Aiyar v. Gopalan : (1918)35MLJ698 , the decision in which case appears to be right, both the Judges explained what they understood to have been decided by the Privy Council in Madana Mohana Deo v. Purushottama Deo 35 MLJ 138 . They took the dictum which I have discussed above and read it as though it were a judgment. I do not agree with the observations of either Judge on the true meaning to be attached to the judgment of the Privy Council in that case. The District Judge in this case took the interpretation put upon the words in Madana Mohan Deo v. Purushothama Deo 35 MLJ 138, by this Court in Venkatarama Aiyar v. Gopalan : (1918)35MLJ698 and therefore held that this adoption is bad. For the reasons stated above I think his conclusion is wrong.
5. The appeal will be adjourned a fortnight for further consideration and for enquiries to be made as to what took place in the Court below, so that we can decide whether to enter judgment or to send the case back to the District Judge. The respondent must pay the costs throughout.
6. The respondent relies, as the District Judge has relied, on the phraseology in certain passages in the Privy Council judgment in Madana Mohana Deo v. Purushothama Deo 35 MLJ 138 and on the interpretation of those passages by a Bench of this Court in Venkalarama Aiyar, v. Gopalan : (1918)35MLJ698 . The first passage is that the mother's authority to adopt must have come 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 naturalborn son, (as distinguished from an adopted son) or by the adoption to him of a son by his own widow. The events which put an end to the mother's power to adopt to her husband in that view are either that her son or adopted son should have a legitimate son or should leave a widow, that is, the essential pre-requisite is not the attainment of his majority or even his succession to the estate, but that he has or has had a wife with the result that he leaves either a son to her or that she survives him as his widow. The common result in either event is that the deceased son's estate is on his death vested not in his mother but in his son or widow.
7. Therefore their Lordships, I consider, are not propounding any new principle but are taking their stand on the old principle enunciated by the Privy Council in Rungama v. Achama and Atchama v. Ramanadha (1846) 4 M.I.A. 1 and Mussammat Bhoobun Moyee Debia v. Ram Kishore Acharji Choudhury (1865) 10 M.I.A.. 279 namely that when the estate is vested in some heir succeeding to, but directly from the deceased son, his mother will not be allowed to adopt to her husband so as to divest that heir.
8. The second passage in their Lordship's judgment relied on does not seem to me to carry the case any further. It is to the effect 'that their Lordships do not desire to be understood as saying that even in the absence of any power in the son's widow to adopt, the succession to Brojo Kishore (that is the son) and his dying after attaining full legal capacity to continue the line would not in themselves have been sufficient to bring the limiting principle into operation, and so to have so determined the authority of Adikonda's widow, who was not the widow of the last male owner, and could not adopt a son to him. 'Here again the phrase 'succession to Brojo Kishore'does not to my mind mean anything more than that he has come into the estate. Had it meant attainment of his majority, that simpler phrase would have been used. I note further that that succession in itself is not sufficient to have determined the authority of Adikonda's widow, but that it must be coupled with the capacity to continue the line as previously explained, that is, coupled with a legal marriage. It is only from such a marriage that there will emerge an heir to continue the line in legitimate descent and therefore, untill such marriage, the full legal capacity to continue the line is not consummated. That marriage itself is not the whole test, but such a marriage as leaves a heir, a son or a widow, to the deceased has been laid down in Venkappa Babu v. Jivaji Krishna I.L.R(1901) . 25 Bom. 306 .
9. That I think is the meaning of Madana Mohana Deo v. Purushothama Deo 35 MLJ 138, in which their Lordships were dealing with a case where the adoption pleaded before them would have divested the adopted son's widow of the estate, it not having been shown that the son's widow herself had no power to adopt to her husband, and the Board, purported to follow and were in full agreement with the decision in Ramakrishna v. Sham Rao I.L.R(1902) . 26 Bom. 526 based on Mussammat Bhoobun Moyee Debia v. Ramkishore Acharji Choudhury (1865) 10 M.I.A. 279 Padma Coomari Debi v. The Court of Wards 8 C. 302 and Thayammal v. Venkatarama 10 Mad. 205 and held that the principle laid down in this case determined that case also. I find nothing in Madana Mohana Deo v. Purushotham Deo 35 MLJ 138 on which to find on principle that the mere attainment of majority by the son or the adopted son divested his mother of the power to adopt to her husband in the event of that son's death without heir. Under the Hindu Law a minor can marry to get legitimate sons and his widow can adopt to him, so that, even a minor may fulfil the tests laid down in Madana Mohana Deo v. Purushothama Deo 35 MLJ 138 though he has not yet come into full disposing possession of his estate.
10. There is therefore nothing in that case to support the District Judge's interpretation of it as meaning that the full legal capacity to continue the line is equivalent to attaining majority, in a case where the son has attained age but dies unmarried. In this matter there appears to be no virtue in law in the attainment of majority and hence, when that is the only bar pleaded, there seems no reason for distinguishing between a mother's power to adopt to her husband when the minor son or adopted son has died from the power to adopt to him when the major son or adopted son has died leaving no heir to himself who will be ousted from the estate by such adoption. See again Venkappa Bappu v. Jivaji Krishna I.L.R(1901) . 25 Bom. 306.
11. Hence the mere attainment of majority introduces into the problem no new factor on which the respondent can rely for. its solution. The purpose of adoption is to perpetuate the line, and if the only son dies without leaving any one to perpetuate the line, there seems no good reason for restricting the power of his mother to perpetuate it in the only way she can, by adopting a son to her own husband. No direct authority to the contrary has been produced by the respondent while there is much authority in its favour.
12. I therefore agree with the view of the learned Chief Justice.
13. This Second Appeal having been posted for further consideration the Court delivered the following