1. This was a suit instituted on behalf of the minor, Adinath Dey, one of the respondents before us, for a declaration that he was the adopted son of the late Raj Narain Dey, and for possession of the properties left by Raj Navain. The plaintiff alleged that the adoption was made according to the permission given by Raj Narain by his younger widow, Biraj Mohini Dasi, defendant No. 2, upon the refusal of the elder widow, Mondakini, defendant No. I. The defendant No. 1 denied the fact of adoption, as well as the existence of any authority to adopt, and the defendant No. 2, while admitting that there was permission to adopt, questioned the validity of the adoption on the ground that she was a minor and could not make a valid adoption.
2. The first Court held that the adoption was valid, and it gave the plaintiff a decree. That decree was reversed by the District Judge on appeal; but on second appeal, this Court set aside the decision of the District Judge on the ground of improper admission of evidence, namely, certain papers on the record of a will case, and it sent the case back to the Lower Appellate Court for a fresh trial. The Lower Appellate Court has now affirmed the decree of the first Court, and the defendant No. 1, Mondakini, has preferred this second appeal.
3. The point urged before us are--first, that the Lower Appellate Court has erred in law and acted contrary to the directions contained in the remand order of this Court, in referring to the record of the will case of Mondakini, which as a whole was not properly made evidence in this case; secondly, that the adoption was invalid, as the alleged power could only be exercised either by the two widows jointly or by the elder widow alone; thirdly, that the adoption was invalid, as the younger widow by whom it was made was a minor; and fourthly, that even if the adoption was valid, it could not divest the estate of the elder widow who was no consenting party to it, and that the plaintiff was not entitled to recover the eight annas share of the estate of Raj Narain which had been inherited by her.
4. Upon the first point, though the learned District Judge in one part of his judgment observes that the will case requires to be carefully looked into, there is nothing to show that he has used any part of the record of that case which was not properly in evidence. It appears from the remand order that some portions of that record were properly used as evidence; and the learned Judge in the decision now appealed against distinctly says that in deciding the case he has put aside the evidence wrongly considered by his predecessor. We do not therefore think that there is anything in the first ground.
5. The second point is, in our opinion, settled by the findings of fact arrived at by the Courts below. The first Court has found as a fact (and its finding has been accepted as correct by the Court of Appeal below) that the permission given by Raj Narain to his wives was to the effect that either of them should adopt the youngest son of Prankrishno, whose name was Ashu, and that that boy was adopted by the younger widow on the refusal of the elder to take him in adoption. We do not see any reason for holding that an adoption so made is contrary to law.
6. Nor is there anything in the third point urged before us. The Indian majority Act (IX of 1875) provides that nothing contained in that Act shall affect the capacity of a person to act in matters relating to adoption. It has been decided by this Court in the case of Rajendra Narain Lahoree v. Saroda Sundari Dabee 15 W.R. 548 that a minor who has arrived at the age of discretion is competent to give permission to adopt, and this decision has been approved by the Privy Council in Jumoona Dassya v. Bama Sundari Dassya I.L.R. 1 Cal. 289. What is meant by the age of discretion in these cases is not clearly stated, nor is there anything to show that at the date of the adoption in question Biraj Mohini had not attained sufficient maturity of understanding to comprehend the nature of the act. It should also be borne in mind that in this case the authority to adopt was given by a person of full age, and the validity of the adoption is questioned on the ground that the person who exercised that authority was a minor. Upon this point there is a case given in Macnaghten's Precedents of Hindu Law (chapter VI, case V) in which the pandit's opinion was to the effect that the nonage of the widow is no obstacle to an adoption by her. Moreover, as the boy taken in adoption in this case was definitely named in the authority as the person to be adopted, we do not see how the minority of the widow who exercised that authority can affect the validity of the adoption.
7. The fourth point does not appear to have been raised in the Courts below. But as it in a point of law not requiring for its disposal any further enquiry into facts, we allowed it to be raised and argued here. The sum and substance of the argument on behalf of the appellant is that an estate vested in any person by inheritance cannot be divested by a subsequent adoption, except where the adoption is made by such person; and that the plaintiff is not therefore entitled to recover anything more than the share of Raj Narain's estate inherited by his younger widow by whom the adoption was made; and in support of this argument the cases of Bhoobumnoyee v. Ramkishore Acharjee 10 Moore's I.A. 279 and Kally Prosunno Ghose v. Gocool Chunder Mitter I.L.R. 2 Cal. 295 were relied upon. There can be no doubt that as a general rule an estate vested in any person by inheritance is not divested by a nearer heir subsequently corning into existence see Kalidas Das v. Krishna Chandra Das 2 15. L.R. F.B., 103; 11 W.R., O.C. 11. But there are exceptions to this rule, and the question is whether the present case is one of those exceptions. Upon that question the cases cited are not exactly in point, as in those cases the adoptions which were held inoperative in divesting vested estates were made not to the last full owners to whom inheritance had to be traced, but to other persons, that is, to the father of the last full owner in the first-mentioned case, and to his brother's son in the second. The cases of Annammah v. Mabbu Bali Reddy 8 Mad. 108 Drobomoye v. Shamacharan I.L.R. 12 Cal. 246 and Rupchand v. Rakhmabai 8 Bom. A.C. 114 are similarly distinguishable from the present, the adoption having been made to the father of the last full owner in the first and the second, and to his brother in the third.
8. On the other hand, there are cases (some of which are exactly in point) which support the respondent's view that a son adopted by one of several widows to her deceased husband takes the whole of his estate, divesting the estates of all the widows.
9. In Virada Pratapa Raghunada Deo v. Brojo Kishoro Patta Deo I.L.R. 1 Mad. 69 the widow of Rajah Adikonda Deo, the holder of an impartible zemindari, having adopted a son under the authority of her deceased husband, the adopted son was held entitled to recover the estate from Raghunada, the half-brother of the deceased zemindar, who, as the Judicial Committee observed, must be taken to have been an undivided brother and the person who, according to the ordinary law of succession, was entitled to the zemindari on the death of Adikonda without a legitimate son, either procreated or adopted.
10. In Rukhmabai v. Radhabai 5 Bom. A.C. 181 it was held that a son adopted by an elder widow without the consent of the younger was entitled to take the whole estate of his adoptive father, and to defeat the interest of the younger widow. Sir RICHARD COUCH In delivering the judgment of the Court observed: 'It would seem to be unjust to allow the elder widow to defeat the interest of the younger by an adoption against her wish. But, on the other hand, if the adoption is regarded as the performance of a religious duty and a meritorious act, to which the assent of the husband is to be implied wherever he has not forbidden, it would seem that the younger widow is bound to give her consent, being entitled to a due provision for her maintenance; and if she refuses, the elder widow may adopt without it.' This is a case clearly in point.
11. The same view was taken by this Court in an unreported case decided on the Kith of February 1882 Appeal from Original Decree No. 97 of 1880--Bhuteswari Chowdhrani v. Siddheswari Chowdhrani--in which it was held that a son adopted by one of two widows according to the authority of her deceased husband was entitled to take the entire estate and to divest the estate of both the widows.
12. The true rule deducible from all these cases is, as stated by Mr. Mayne in his learned work on Hindu Law and Usage ( 179), this, namely, that a son adopted to the last male proprietor, who was the full owner of an estate, is entitled to take the whole of that estate and to divest the interest of any person in that estate whose title by inheritance is inferior to his, and who could not have inherited if the adoption had taken place before the death of the last full owner, though he is not entitled to claim as preferential heir the estate of any other person besides his adoptive father, when such estate has vested before his adoption in some heir other than the widow who adopted him. There is nothing unjust in this. Indeed, there would be great injustice if the opposite view were to prevail, and if the lawfully adopted son of the last full owner, who is to bear all the obligations of a son, were to be deprived of any part of his adoptive father's estate. The case is wholly different where an adopted son clams not the estate of his adoptive father, but that of another person after it has vested in some other heir who was entitled to it before the adoption. It would obviously lead to inconvenience and injustice to allow vested interests to be divested in such cases.
13. The contention of the appellant is therefore wholly opposed to the authority of decided cases. It is equally repugnant to the spirit of the Hindu law. According to the law of the Bengal school, an adoption by a widow according to the express permission of her husband is a perfectly valid adoption. [ See Dattaka Chandrika, I, 7; Macnaghten's Principles of Hindu Law, p. 91--The. Collector of Madura v. Muttu Ramalinga Sathapathy 1 B.L.R., P.C. 1; 10 W.R., P.C. 17; 12 Moore's I.A., 397]. Such an adoption, if it is to be of any effect, must lead to the divesting of some vested interest in the property left by the person to whom the adoption is made. It was not denied that if the appellant had joined in the act of adoption, it would have been operative in divesting her estate. Now when a man authorises an adoption by any of his widows, it is clearly the religious duty of all his widows to co-operate in bringing it about,; and it would be contrary to reason and justice to allow any one of them to gain an advantage by opposing or withholding her consent from that which it is her duty to accomplish.
14. The grounds urged on behalf of the appellant, therefore, all fail, and this appeal must consequently be dismissed with costs.