William Watkins Phillips, Officiating C.J.
1. I have had the advantage of reading the judgment about to be pronounced by my learned brother and I entirely agree in his conclusions that the estate left by her husband to the plaintiff was an absolute estate and not a mere widow's estate, and that there was no prohibition by the husband against the adoption of a son. I also agree that an adoption is not necessarily invalid on the ground that the father to whom the adoption is made left no estate, In the present case, therefore, the adoption was valid; and if my learned brother is right in holding that the adoption did not divest the widow of her absolute estate, I agree with him that the estate has now vested in the adopted son by reason of a deed executed by her, Ex. III, I am, however, inclined to think that, although the widow held an absolute estate from her husband, the adoption of the 1st defendant would have the effect of vesting that estate in him. In a recent case from this Court it has been held by their Lordships of the Judicial Committee in Krishnamurthi Ayyar v. Krishnamurthi Ayyar : (1927)29BOMLR969 that '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 subsequenly 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.'
2. This proposition is to a certain extent a modification of the theory of adoption, namely, that the adopted son takes the place of a natural son and succeeds by survivorship to the estate of the father as it stood at the time of his death, for the decision that devises by Will of the father are not to be affected by a subsequent adoption postpones the accrual of the adopted son's rights. No distinction has been drawn by their Lordships between, a devise to a widow and a devise to a third party, but 1 think that some distinction has always been recognized between the two in considering the effect of an adoption. If a widow has vested in her a widow's estate, undoubtedly she is divested of that estate by the mere act of adoption, and there is an observation so far back as 1865 in Bhoobun Moyee Debia v. Ramkishore Achatj Chowdhry 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 which supports the proposition that the widow stands in a different position to other persons when there is a question of the divesting of an estate. In that case it was held that where the adopted son had died leaving a widow and the estate vested in such widow, the adopted son's mother had no longer any power to make further adoption which would defeat the son's widow's estate. Their Lordships then observe:
If Bhowanee Kishore had died unmarried, his mother, Chundrabullee Debia, 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....
3. This would seem to imply that if there had been no widow and the son's estate had become vested in his mother, she could have made an adoption which could have divested herself of her estate. The point has been discussed at considerable length in Rai Jatindra Nath Chaudhuri v. Amrita Lal Bagchi 5 C.W.N. 20 and the view taken by the learned Judges was that:
A Hindu widow adopting a son under the authority of her deceased husband upon the death of a son begotten or adopted whose estate she inherited as mother, divests herself of that estate by the act of adoption in favour of the son last adopted by her and such son takes the estate immediately on his adoption.
4. When a widow succeeds to a widow's estate on the death of her husband who is the sole member of a family she is divested of that estate by adoption and it seems to me that no distinction, can be drawn between the divesting of a widow's estate and the divesting of an absolute estate. By adopting a son the widow realises that that son will be relegated to the position of a natural born son and will have all the rights of such a son. If this notion is accepted, the son would take the whole of his father's estate at it was at the time of his death. The exception grafted on to the Hindu theory of adoption that bequests to other people by Will are not affected by the subsequent adoption appears to be baited upon the theory that the father, before the adoption, was in a position to make effective gifts and bequests and that such dispositions should not be disturbed by the intervention of the widow in making an adoption, that is to say, that the rights properly obtained by third parties are not to be defeated by the mere will and pleasure of the widow. This is quite different from saying that a widow shall divest herself of her own free Will. She can make an adoption or she can refuse to make an adoption and this is entirely question of her own will and pleasure. If she wishes to make an adoption and thereby divest herself of her estate, is there any principle of law which could prevent her from doing so? I think not. Nor does there appear to be any principle according to which any distinction can be drawn between a widow's estate and an absolute estate held by a widow, It is not so much the nature of the estate, that is to be divested as the person by whom it is held. When that person divests herself of her own free will, I think, that there can be no objection to that being done. Theoretically an adoption has the effect of depriving all subsequent owners of the deceased's estate of that estate; and because in equity an exception is made in certain cases; I can see no reason why this exception should be extended to the case of a widow at whose will and pleasure the adoption is made, for in her case there can be no question of any equity arising. If this view is correct, as I think it is, the adoption of the 1st defendant would have the effect of divesting the widow even of the absolute estate left by her husband. On this ground also the plaintiff's suit must fail and be dismissed with costs throughout.
5. Defendant No. 2 instituted C.S. No. 635 of 1922 in this Court against defendant No. 1 and obtained an order attaching before judgment two houses as the property of the defendant No. 1. The houses, it is admitted, were owned as ancestral property by the plaintiff's late husband, Govarahan Doas Motha, who had no coparcener at the date of his death. It is alleged by defendant No. 2 that defendant No. 1 became the owner of these houses when he was adopted by the plaintiff as the son of her late husband in 1917. In the present suit the plaintiff prayed for declarations that defendant No. 1 was not validly adopted and that she is the absolute owner of the two houses and for an injunction restraining defendant No. 2 from proceeding against the houses as the property of defendant No. 1. Kumaraswami Sastriar, J., who tried the suit, has made a decree declaring that the plaintiff is entitled to the houses under the Will of her husband, Ex. A, that defendant No. 1 has no right, title or interest in the houses and that defendant No. 2 is not entitled to proceed against them in execution of the decree which he has now obtained against defendant No. 1 in C.S. No, 635 of 1922. Defendant No. 2 appeals.
6. It is not now disputed before us that the plaintiff did adopt defendant No. 1 in 1917, in due form and executed the original of Ex. III recording the adoption. It is also admitted that the adoption was not invalid either because defendant No. 1 was a married man at the date of the adoption or because the plaintiff had not been authorised by her husband to make an adoption as the plaintiff and defendant No. 1 are Maheswaris of Bikanir governed by Mayuka as followed in the Bombay Presidency. But under the law in that Presidency the plaintiff could not make a valid adoption if she had been prohibited from doing so by her husband. For the plaintiff it is contended that there is an implied prohibition in the Will Ex.-A. as by that Will Govardhan Doss Motha devised and bequeathed all his property to his wife, the plaintiff absolutely. For defendant No. 2 it is contended that under the Will the plaintiff got no more than a widow's estate. The learned Judge has found that the Will gave her an absolute estate, and I see no sufficient reason to differ from him on that point. The Will declares the plaintiff to be the malik of all the testator's property and that expression is used by a man of Bikanir; there is no word in the Will to suggest that the plaintiff is to take less than an absolute estate; no one else than the plaintiff takes the benefit under the Will, and there was no object In the testator making such a Wilt at all if he intended his wife to take only a widow's estate But is there any implied prohibition of adoption in the testator's disposition of his whole estate in favour of his widow absolutely? Mr. T.M. Kriahnaswami Aiyar for defendant No. 2 suggests that the judgment, of the Privy Council in Yadao v. Namdeo 64 Ind. Cas 536 : 49 C. 1 : 17 N.L.R. 145 : 30 M.L.T. 53 : 26 C.W.N. 393 1923 42 M.L.J. 219 : 15 L.W. 565 : 20 A.L.J. 481 : 1923 24 Bom. L.R. 609 : A.I.R. 1923 P.C. 216 : 43 I.A. 513 shows that a prohibition of adoption according to the Bombay Law must be explicit. In that case their Lordships dealing with parties governed by Bombay Law, expressed the opinion that, if a husband authorized or directed his wife to adopt a certain boy it would require an explicit prohibition to prevent her from adopting any other boy, should the boy named by the husband die or be unavailable. They did not lay down generally that under the Bombay Law the prohibition of adoption must always be express. It maybe noticed that the head note in the Indian Law Reports is not accurate in that case. In Gopal Balakrishna v. Vishnu Raghunath 23 B. 250 : 12 Ind. Dec 166; Lakshmibai v. Sarasvatibai 23 B. 789 : 1 Bom. L.R. 420 : 12 Ind. Dec.528 and Malganda Paragowda Patil v. Babaji Dattu Bhakare 17 Ind. Cas. 746 : 37 B. 107 : 14 Bom. L.R. 1121 it was recognized that the prohibition need not be expressed but might be merely implied. That view of the law in the Bombay Presidency has never been overruled, and we must, therefore, adopt it In this case there was no express prohibition and the question is whether the disposition of the testator's property in the Will, Ex A, implies a prohibition of adoption. Prom the Will it appears that the plaintiff's husband did not contemplate any adoption being made. But that is very different from prohibiting one. Without for the moment discussing the question whether such a prohibition can ever be implied in a mere disposition of property, even of the whole of the husband's estate a question to which it will be necessary to refer later, it appears to me that we cannot find such an implied prohibition in a diposition in favour of the widow, which leave her able, if she wishes, to endow an adopted son with her husband's property. In my opinion there was no implied prohibition by her husband which would make the adoption of defendant No, 1 by the plaintiff invalid.
7. But Mr. Gopalaratnam for the plaintiff contends that the adoption was invalid for another reason. His argument is that adoption by a widow divests rights which have, passed on the death of her husband by inheritance or survivorship but not rights acquired by Will; by her husband's Will the plaintiff had acquired the whole of his property, and no property of her husband was left over, of which the adoption itself Could divest her; there being no property to be affected by the adoption or in respect of which the adoption would create any right in the adopted son, the adoption it self was invalid. With the first two stages of this argument I agree. Divestment on adoption, when it occurs, is a legal consequence of the adoption, not a voluntary act of the person divested. With great respect, as I understand the matter, adoption divests only estates which have come into existence as a legal consequence of there being no son. When a son subsequently appears by adoption, estates which are incompatible with this existence are divested. Whether the widow who has taken as her husband's heir is divested or a co-parcener of her husband who has taken by survivorship, the divestment is the result of the adopted son coming into such a position in relation to the deceased husband as defeats the widow's claim to inherit or the co-parcener's right to exclusive succession by survivorship. There are limits to the divestment which results from the subsequent appearance of a son by adoption--for instance alienees from the surviving co-parcener will not be divested. But, as I understand it, except where a widow has made alienations which as a widow she is not entitled to make, the divestment affects only rights which have devolved by inheritance or survivorship. It has been recognized clearly by the Privy Council in Krishnamurthi Ayyar v. Krishnamurthi Ayyar : (1927)29BOMLR969 that, when by his Will the husband has disposed of part of his property, that disposition cannot be affected by the adoption of a son after his death; a similar legal effect must follow in my opinion from the disposition by Will of the whole of his property which in that case cannot be affected by a subsequent adoption. So far as I can see, there is no legal principle on which an absolute estate created by the husband's Will in favour of his widow or any one else can be divested by a subsequant adoption unless we can treat the adoption as so relating back to the lifetime of the husband as to destroy in respect of ancestral property hie power of disposition by Will, a view which the opinion expressed by the Privy Council in Krishnamurthi Ayyar's case : (1927)29BOMLR969 precludes us from taking, Mr. Gopalaratnam is, in my opinion, right in his contention that at the time of the defendant's adoption by the plaintiff, there was no property of Govardhan Doss Motha to be affected by the adoption or in which defendant No. 1 could obtain any right by the adoption itself. But as I need hardly add, I quite agree with my Lord that the plaintiff, having an absolute estate, was at liberty to divest herself of it by a gift to her adopted son. That kind of voluntary divesting however is not the technical and automatic divesting consequent on adoption to which I have been referring.
8. But, if defendant No. 1 got no property by his adoption itself, does it follow, as contended for the plaintiff, that the adoption was, therefore, invalid? That would be so only if it is a principle of Hindu Law that a valid adoption to a deceased father is impossible when the father has left no property to which the adopted son can succeed by inheritance or survivorship. That is a very serious and sweeping proposition, which we should be slow to accept unless we are clearly forced to do so Mr. Gopalaratnam admits that he can quote no text to that effect nor any case in which it is directly so decided. It is true that in an obiter dictum in a recent case, Erram Reddy Chenchu v. Marak Reddy Lakshminarayana : AIR1928Mad271 , in which the actual decision rested on the construction of the particular Will there in question, Srinivasa Ayyangar, J., said:
9. 'I, for my part, am not sure whether an adoption can be held vaild if there is no question of any inheritance to property' and whether a Court of Law would not refuse to recognize an adoption when there is no question of inheritance to property.
10. It is not very likely that the validity of an adoption would ever come into question before a Civil Court unless directly or indirectly it affected a right to property. And only in rare circumstances would a natural father consent to give his son in adoption to a pauper or to the widow of a pauper. But we cannot avoid the question which has been raised by saying that in respect of adoption the Civil Court is concerned only with its effect upon property and not at all with the religious results of making it or failing to make it. An adoption made by a widow to a husband who had left no property which the adopted son could claim by inheritance or survivorship, if valid, might years afterwards or generations afterwards affect a reversionary claim to property of great value. In such a case it would be the duty of the Court investigating the reversionary claim to decide whether the adoption was valid; and to say that it was not valid merely because it affected no property of the husband would be a most serious decision not to be made without some compelling authority or reason. And are we to declare it to be the law that a Hindu widow, however convinced she may be that an adoption is necessary for her husband's salvation, cannot make a legally valid adoption merely because he had left no property or no undisposed of property, even though she herself as in this case, may have ample means with which to endow an adopted son? That would indeed be a hard saying. The only real basis which Mr. Gopalaratnam has shown for his proposition is the alleged implication of expressions used in certain Privy Council decisions. In Padmakumari Debi v. Court of Wards 8 C. 302 : 8 I.A. 229 : 4 Sar. P.C.J. 285 : 6 Ind. Jur. 148 : 4 Ind. Dec. 193 their Lordships of the Privy Council, expounding their' previous decision in Bhoobun Moyee Debia v. Ram Kishore-Acharji Chowdhury 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 relating to the same family, say that it was to the effect that, when the father's estate had on the death of his surviving son vested in that son's widow, the power of the father's widow to adopt was not, only insufficient to substitute a new heir for the son's widow but as a power to make any adoption at all 'was at an end and incapable of execution.' They go on to say that 'the adoption intended by the deed of permission (executed by the father) was for the succession to the zemindari and other property, as well as the performance of religious services, and the vesting of the estate in the widow (that is the son's widow), if not in Bhavani (the son) himself, as the son and heir of his father, was a proper limit to the exercise of the power.' 11. That was cited with approval and followed by their Lordships in Thayyatnmal v. Venhatarama 10 M. 205 : 14 I.A. 67 : 11 Ind. Jur. 271 : 5 Sar. P.C.J. 10 : 3 Ind. Dec. 895. Undoubtedly these decisions lay down that, when the father's estate has devolved on the surviving son's widow, the power of the father's widow to adopt is at an end. But are we justified in saying that the decisions lay down that it is at an end because the estate has devolved on the son's widow who cannot be divested by any adoption made by the father's widow or because an adoption by the father's widow can no longer invest the adopted son with the father's estate? It is not possible that their Lordships were fixing the stage at which the power of the father's widow to adopt came to an end rather than giving the reasons which made it come to an end? Is it a case of post hoc or propter hoc? Apart from any question of property is it not clear that the appropriate person to continue the family line by adoption at that stage was the son's widow, whose, adopted child would fulfil all family and religious obligations to the son as well as to the father? In each of the three cases the succession to the property was the question to be decided; and if the stage at which the power of the father's widow to adopt came to an end was described in terms of the devolution of the estate, is it necessarily to be inferred that the power to adopt is dependent on the vesting of the estate? In those cases the power to adopt and the vesting of the estate were coincident They are not always so. In Ram Krishna v. 'Shamrao 26 B. 526 : 4 Bom. L.B. 315 a Full Bench of the Bombay High Court declared the principle governing the limit of a widow's power to adopt as laid down in Bhoobun Moyees case 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 to be 'where a Hindu dies, leaving a widow and a son, and that son 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.'
11. If that is the real principle, then the power of the father's widow comes to an end, not because the estate is vested in the grandson or the son's widow but because the right to continue the line has passed to the grandson or son's widow. Towards the end of the same judgment the law laid down by the Privy Council is stated to be 'that a widows power of the adoption comes to an end can never be revived after the inheritance has vested in some heir of her son other than the widow herself.'
12. That is not in any way inconsistent with the earlier and fuller statement of the principle if the later statement is understood to describe the stage at which the limit is reached by one aspect of the matter--the venting of the estate--the aspect with which in all the three cases mentioned their Lordshipe of the Privy Council were Concerned. In Madana Mohana Ananga Bheema Doe v. Parashothama Ananga Bhetma Doe 46 Ind. Cas. 481 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 : (1918) M.W.N. 621 : 24 M.L.T. 231 : 28 CRI.L.J. 403 : 19198 20 Bom. L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 their Lordships in 15118 themselves declared that the Full Bench of the Bombay High Court were right in their statement of the principle in Ram Krishna v. Shamrao 26 B. 526 : 4 Bom. L.B. 315 and applying that principle they said 'the authority to adopt conferred on Adikonda's (the father's), widow (came) to an end when Bro Kishore, the son she 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.'
13. In the face of that recent and authoritative statement of the law how can it be maintained that the language used in Bhoobun Moyee Debia v. Ram Kishore Acharji Chaudhury 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 Padmakumari Debi v. Court of Wards 8 C. 302 : 8 I.A. 229 : 4 Sar. P.C.J. 285 : 6 Ind. Jur. 148 : 4 Ind. Dec. 193 and Thayyammal v. Venkatarama 10 M. 205 : 14 I.A. 67 : 11 Ind. Jur. 271 : 5 Sar. P.C.J. 10 : 3 Ind. Dec. 895 cases necessarily implies that there can be no valid adoption when there is no estate with which the son adopted will be invested--a question which never arose for consideration in those cases? It is quite clear that in some cases a widow can make a valid adoption without affecting her own interest in any property. That is so when the widow of a member of a joint family makes an adoption before the family is divided or the last surviving member alienates the family property or dies. As stated by their Lordships of the Privy Council in Pratapsing Shivsing v. Agorsingji : (1919)21BOMLR496 the right of the widow to make an adoption is not dependent on her inheriting, as a Hindu female owner, her husband's estate. She can exercise the power, so long as it is not exhausted or extinguished, even though the property was not vested in her.
14. That her adoption to be valid must nevertheless affect some property, vested in the widow or in some one else, is a proposition for which no direct authority has been produced and which in my opinion does not necessarily follow by implication from any decisions which have been quoted before us. On the other hand, it may be noticed that in Sri Virada Pratapa Fiaghunada Deo v. Sri Brozo Kishoro Patta Deo 1 MA. 69 : 3 T.A. 154 : 25 W.R. 291 : 3 Sar. P.C.J. 583 : 11 Mad. Jur. 188 : 3 Suth. P.C.J. 263 : 1 Ind. Dec. 45 their Lordships of the Privy Council quoted with apparent approval an opinion of Holloway, J., to the effect that 'the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.' In my opinion Mr. Gopalaratnam's contention is not made out, and defendant No. 1's adoption by the plaintiff was not invalid because of itself it invested him with no property.
15. It may perhaps be argued--though I did not understand Mr. Gopalaratnam to put in that way--that in the Bombay Presidency it has been recognized that a testator by disposing of his whole property by Will may impliedly prohibit his widow from making an adoption and that, if the disposition of the property alone has that effect, there is a necessary implication that the existence of some property on which the adoption can take effect is essential for a valid adoption. The strongest case on the point is Malganda Paragowda Patil v. Babaji Dattu Bhakare 17 Ind. Cas. 746 : 37 B. 107 : 14 Bom. L.R. 1121. In the judgment it is said 'As it stands, the Will makes a complete disposition of all the property in favour of the daughters. There is no property left upon which an adoption can take effect' And the learned Judges found that the adoption was invalid. But even in that case there was something more than the bare disposition of the property from which the prohibition might be deduced. As the learned Judges say there was a sentence in the Will 'to the effect that the testator has not taken anybody in adoption which shows that it was present to his mind that any adoption made would pro tan to have the effect of running counter to the provisions of his Will. Not only was there a complete bequest of the whole estate to the daughters, but the widow was in terms prohibited from disposing of the property to any one except the daughters. It is plain, therefore, that the adoption now in question cannot be upheld without giving the goby to the testator's expressed wishes.' It was assumed in that case without discussion that the Will and the adoption were necessarily in conflict--probably because the learned Judges were of opinion that an adoption would override the disposition by the Will in favour of the daughters, a view which cannot be taken after Krisnamurthi Aiyar's case : (1927)29BOMLR969 But there was more in the Will than the mere disposition of the testator's property to discountenance an adoption; and I do not think that the case can be treated as an implied authority for the proposition that an adoption can never be valid when of itself it affects no right to property. Nor can that proposition be safely supported by a few words quoted by Mr. Gopalaratnam from an involved sentence which appears on page 443 Page of 12 M.I.A.--[Ed.] of the report of the Collector of Madura v. Moottoo Ramalinga Saihupathy 12 M.I.A. 397 : 10 W.R.P.C. 17 : 1 B.L.R. P.C. 1 : 3 Mad. Jur. 298 : 2 Suth. P.C.J. 135 : 2 Sar. P.C.J. 361 : 20 E.R. 389 : 1 Ind. Dec. (N.S.). 1. If an implied prohibition is to be established it must be gathered from the whole of what the husband said and did on the occasion or occasions in question, of which the disposition of his property in his Will may be an important part to be taken into consideration; and no doubt the disposition of his whole property in favour of persons other than his widow would be strong evidence that he did not intend an adoption to be made and little additional evidence might be needed to make out a prohibition.
16. My view of the case is that the plaintiff validly adopted defendant No. 1 although by the adoption itself she was divested of no property and defendant No. 1 was invested with none. But by the original of Ex, 3 the plaintiff transferred to defendant No. 1 the whole property in her husband which she took under the Will Ex. A As the adoption was valid, no, Objection can be maintained that the gift to defendant No 1 was invalid as in Famindra Deb Raikat v Rajesivar Das 11 C. 463 : 12 I.A 72 : 4 Sar. P.C.J. 610 : 9 Ind. Jur. 277 : 5 Ind. Dec. 1068 on the ground that he had not the character or capacity of an adopted son is which the gift was made to him. It is suggested for the plaintiff that, though it appears that the original of Ex. 3 was executed on a stamp paper of the value of Rs. 285 that may not be the correct amount for deed of gift under the Stamp Law of Bikanir, where it was executed. But as the document has been admitted at the trial, we cannot reject it on any such ground, even if made out, at this stage.
17. In my opinion the houses attached by defendant No. 2 were the property of defendant No. 1 and, therefore, this appeal Should be allowed and the plaintiff's suit should be dismissed with costs throughout.