1. The subject-matter of this appeal is part of the property admittedly left by one Venkataohala Pillai who died in May 1890. At that time Venkataohala Pillai was a young man, married to defendant 1 who was shortly expecting a child. She was delivered of a still born female child in July. It is not now seriously disputed that shortly before he died Venkataohala Pillai orally authorized his wife to make an adoption in case the child she was expecting should prove to be a girl. On 9th February 1891 defendant 1 adopted one Pichai Pillai who lived to become a major, but shortly afterwards (in February 1907) was murdered while still unmarried. In 1922 defendant 1 executed Ex. W, by which the estate which had originally belonged to Venkatachala Pillai and was then in her hands, was divided into two portions, the larger half being retained by defendant 1 and the smaller conveyed to Muthukumara Pillai, the nearest reversioner. In May 1926 defendant 1 made a second adoption to her deceased husband, the person chosen as adopted son being the plaintiff who happens to be the natural son of the man who was convicted and hanged for the murder of Pichai Pillai. In 1934 plaintiff filed the present suit for recovery of the property conveyed to Muthukumara Pillai and his principal opponent is defendant 2, Muthukumara Pillai's widow. The suit has been decreed by both Courts below and defendant 2 has filed this second appeal. The first point taken in the appeal is to contend that the adoption of plaintiff is invalid. It is so contended on two grounds : (i) that defendant 1's motive in making the adoption was a corrupt one. It is asserted that she adopted plaintiff only because she had been living in criminal intimacy with his father; and (ii) that the authority to adopt given by Venkatachala Pillai was confined to the adoption of Pichai Pillai. I have had to disallow any argument on the first ground. The intimacy was found against as a fact by the first Court, and the Subordinate Judge's judgment shows that no attempt whatever was made before him to challenge that finding.
2. The second ground also seems to me to be equally barred by the provisions of Section 100. No doubt there is no precise finding of the exact words used by Venkatachala Pillai in conferring the authority upon his wife, and two views are certainly possible on an examination of some of the exhibits filed in the case which refer to the authority (see Ex. B, Ex. G and Ex. J); but the learned Subordinate Judge has definitely found that Venkatachala Pillai's intention was to confer a general power of adoption on his wife and that he 'simply indicated preference' for Pichai Pillai. This finding, it seems to me, is unquestionably a finding of fact with which I cannot interfere in second appeal. The second point taken in the appeal, however, is equally undoubtedly one of law. It relates to the effect of plain, tiff's adoption upon the title to the subject-matter of this suit. The argument is put in this way: When Pichai Pillai died defendant 1 succeeded to his estate in her capacity as his adoptive mother. Plaintiff's relationship to Pichai Pillai is that of brother. Of the two relations, defendant 1 and plaintiff, defendant 1 is the preferential heir. Her estate cannot therefore be divested by the adoption, and must continue till she dies. So long as she is alive defendant 2, whose title is good for her lifetime, cannot be dispossessed.
3. Now, if one considers this matter solely from the point of view of the devolution of property this argument would appear to be unanswerable; but unfortunately for the appellant, the authorities in this matter are almost uniformly against her. The only direct authority in her favour is found in Gobindo Nath Roy v. Ram Kandy Chowdhry (1975) 24 W.B. 183, a judgment delivered so long ago as 1875. Against her is a direct authority in Rai Jatindranath v. AmritlaL 5 C.W.N. 20 followed in Hamed Gazi v. Sadat Ali : AIR1940Cal241 ; and also the opinion of Mayne in para. 197 of Edn. 10, of his Hindu law, where it is stated that
where on the death of an aurasa or adopted son the estate which has descended to him from his father vests in his mother as heir, and she makes an adoption to her deceased husband, it is well settled that the estate so vested in her will be! divested.
4. The principle of this, according to Mayne, is either that the mother elects to hold the property as her husband's property when she exercises her power of adoption or that the title of the adopted son relating back to his father's death is the necessary legal result of the power to substitute another son for the deceased. I need now refer only briefly to other cases which have been cited before me by the appellant's learned advocate. They are Subramania Chettiar v. Somasundaram Chettiar A.I.R.(1936) Mad. 642 Amarendra Man Singh v. Sanatan Singh and Radha Bai v. Bajaram : AIR1938Bom383 . The first of these is a case in which it was found that though a custom amongst Nattukottai Chetties permitted the adoption of a second son even when the first adopted son had died leaving a widow that adoption did not affect the rights of that widow, to the estate. The facts there are thus different and there is no direct pronouncement by the learned Judges which could be applied to the present facts. Amarendra Man Singh v. Sanatan Singh is a judgment of the Privy Council in which the question at issue was the right to succeed to an impartible estate. The rival claimants were an adopted son, who was adopted after the death of a natural son who had survived his father, and a reversioner who claimed to be next in succession to the natural son. The reversioner's suit was dismissed by the Privy Council. This case affords no support to the view that the devolution of this property was unaffected by the adoption - and is of little assistance either way as no woman could ever be entitled to the property. Radha Bai v. Bajaram : AIR1938Bom383 again deals with quite different facts. The widow who made the adoption in that case, was the widow of a man who never himself had any exclusive title to the property in dispute. Her adoption therefore could obviously never affect the devolution of her property which descended to her only through her husband's brother. In the result I see no reason at all to interfere with the decree of the lower Appellate Court and dismiss this appeal with costs. Leave granted.