1. We think that the cause of action on which this suit was brought, as we read the plaint, was based on the fact that the 2nd defendant was adopted by the 1st defendant without due authority as the alleged authority of the sapindas other than the plaintiff, which was relied on by the widow (1st defendant), being alleged to be invalid under the rules of Hindu Law.
2. Now that the 2nd defendant is dead and that the 1st defendant is at present (whether we take the view contended for by the plaintiff or that contended for on behalf of the late 2nd defendant) a female heir owning a limited interest, the question of the validity of the adoption of the second defendant has to be decided merely for the purpose of considering whether the order as to costs made by the lower Court so far as that order is in favour of the 1st defendant in her individual right is supportable.
3. After hearing the appellant's learned Counsel we see no sufficient reason to accept his contention that the authority, Exhibit I, given by the sapindas is legally invalid on the ground that it was expressed too generally, that is that it gave the 1st defendant authority to adopt any boy at any time she liked. Reliance was placed for the above contention- on an obiter dictum in Suryanarayana v. Venkataramana 26 Ma. 681. Reading that dictum in the light of the facts of that case we think that all that was intended to be laid down in that case was, that an authority given in such general terms cannot be relied upon as validating an adoption made several years afterwards when several of the sapindas who gave that authority had died, when other sapindas interested in the estate and the affairs of the widow had come into existence and when other similar circumstances had intervened, before the adoption actually takes place. [See also Mani v. Subbarayar 19 Ind. Cas. 663 : 36 M. 145 : 24 M.L.J. 484.] We do not think that the learned Judges intended to lay down that merely because the sapindas had so much confidence in the widow's good sense and good faith as to give her the widest discretion as to the time of adoption and the boy to be adopted, the authority cannot be availed of by the widow when she made the adoption, almost immediately after she got the authority and when the sapindas who gave the authority were all alive and had not withdrawn their authority. Then it was contended that the authority is invalid because it gives power to make successive adoptions. That portion of Exhibit I which gives this power is clearly separable from the previous portions and forms a distinct 3rd paragraph in Exhibit I. If the authority given in the previous portion of Exhibit I to make an adoption is good, the second defendant's adoption is valid and we think it unnecessary for the purpose of this case to decide the question whether the further power to make successive adoptions is valid or not.
4. Lastly it was argued that the plaintiff's permission was not asked for or refused and as the plaintiff is the nearest reversioner the authority, Exhibit I, given by remote reversioners is useless in the absence of a request made to the plaintiff and his refusal to comply with that request. We agree with the lower Court that the evidence of the defence witnesses Nos. 1, 2, 5 and 6 proves that the plaintiff unreasonably refused to give permission to the 1st defendant to make the adoption of the 2nd defendant after repeated requests made, to him personally and through others.
5. We dismiss the appeal with 1st defendant's costs.