1. The plaintiff, the senior widow of Kakarla Lakshmipati sued for a declaration that the alleged adoption of the 2nd defendant made by the 1st defendant the junior widow, is neither true nor valid, as it was made without her consent. The defence is that it is true and valid. The Subordinate Judge has found that the plaintiff was not consulted by the 1st defendant about the adoption and that she was not present at it, but that as it was made with the consent of the majority of the sapindas it is valid.
2. In appeal it is argued that an adoption made without the consent of the senior widow (the plaintiff) and without even consulting her is not valid in law. There is no Madras decision directly in point. In Narayanaswami v. Mangammal I.L.R. (1905) M. 315 the learned Judges held that the omission by the senior widow to consult her co-widow, though no doubt improper, would not be sufficient reason for holding the adoption made by her to be invalid, because a junior widow, is bound as a matter of duty, to give her consent. In Bombay it has been held that where there are several widows the elder has a right to adopt even without the consent of the junior widow, (See Rukma Bai v. Badha Bai) (1868) 5 Bom. H.C.R.A.C.J. 18 but that the junior widow cannot adopt without the con-sent of the elder (See Padajirao v. Ramrao) I.L.R. (1888) B 160 except in certain circumstances to which it is unnecessary to refer. This view has been accepted by the Calcutta High Court (See Ranjit Lal Karmakar v. Bijoy Krishna Karmakar) I.L.R. (1912) C. 582. West and Buhler are the only text writers cited before us who deal with this question. They say that in the case of a difference of opinion between the widows 'the elder has the superior right; and the younger cannot, it would seem, adopt without her senior's authority, except in case of irregularity, on the senior's part causing interference by the caste.' Then the opinions of the Sastris to the same effect are quoted. But it has been urged before us that the law is different in Madras because, in Bombay an adoption may be made by a widow without the consent of the sapindas of her husband.
3. Now, when several widows inherit jointly, the senior widow, in the case of an ordinary co-parcenership, has a preferential right to the management of the joint property on behalf of all the widows unless by consent or decree the joint estate is converted into an estate in severally. If the property is impartible she is entitled to hold it subject to the rights of the others for maintenance. An adoption by the junior widow will thus have the effect of depriving her of the impartible property or the possession of the co-parcenary property. In Madras the law relating to the senior widow's right of management was laid down in the Tanjore case (1864) 3 M.H.C.R. 434. The learned Judges refer to the following statement of the law in Strange's Hindu Law, page 137, at page 435.
When a man has left more widows than one and no son by any, she who first married being the one who is considered to have been married from a sense of duty, succeeds the others inheriting in their turn, as they survive, being entitled, in the meantime to be maintained by the first.
4. Has she got the same preferential right in the performance of religious duties? In Colebrooke's Digest of Hindu Law, Book IV Chapter 1. Sloka 51, it is said that the first is the wife married from a sense of duty, and it is she ' whom acts of duty concern' which the commentator states, means ' who officiates in acts of religion and so forth. ' A sloka of Yagnavalkya is quoted as showing that if there are several wives of the same class, acts of religion are lawfully, performed ' by no other than the eldest' Clause 48 and 49 and the commentator Vignaneswara is cited as saying that in such a case the husband shall not employ another in business relating to religious duties and that the first married one must be preferred in all matters relating to acts of religion, even though, according to Vishnu there may be younger wives who are dearer to him. Certain exceptions are referred to in Sloka 50. It will be observed that this is the very ground on which her preferential right to manage the property left by the deceased husband is recognised by Strange in the passage cited above and extracted in the Judgment in The Tanjore Case (1868) 3 M.H.C.R. 424. A fortiori her preferential right to perform acts of religion should be recognised, and it is not denied that adoption is an act of religion. The decisions of the Bombay and Calcutta High Courts are based on sound principles and we are of opinion, therefore, that the plaintiff has got a preferential right to make the adoption and so long as the preferential right exists in the plaintiff, the 1st defendant has no right to adopt. The consent of the sapindas will not in the circumstances, give her a right to adopt and the adoption is therefore invalid.
5. We accordingly reverse the decree of the Lower Court and declare that the adoption of the 2nd defendant by the 1st defendant is not valid, and that the 3rd defendant is not, therefore, the adopted son of the deceased Kakarla Lakshmipati. The plaintiff is entitled to her costs from the defendants in both courts.