Norris and Beverley, JJ.
1. These issues 4, 5 and 6 were tried together, and as to them the Subordinate Judge says: 'I am of opinion that there is abundant evidence in the case that No. 1 defendant, Santomoni, the widow of the late Bissonath Das Mahapatra, according to the directions contained in her husband's will, dated 3rd Falgoon 1290, which gave her authority to adopt, really adopted as her son the minor plaintiff, who was the natural son of Radha Kant Das Mahapatra, on 8th Kartick 1292, Amli (22nd October 1884) by performing religious ceremonies as provided in the Shastras.' This finding is appealed against in the grounds of appeal, but at the bar here it was admitted that it could not be successfully attacked, and therefore it must stand confirmed.
2. The Subordinate Judge then discusses the question as to the validity of the adoption upon the assumption that Krishna Gobind Das had not advised it or consented to it, and upon this point he says: 'It is urged that as the adoption of plaintiff did not take place with the consent of the executor or manager Krishna Gobind, it is invalid. Plaintiff tried to prove that Krishna Gobind gave secret consent to such adoption, though outwardly he did not give consent as he was most unwilling to incur the displeasure of Raghu with whom he was on friendly terms. The evidence of plaintiff's witnesses, Radha Kant and Ram Parshad, that in Assin 1291 Krishna Gobind advised Santomoni to take protection of Radha Kant and Gopi Mohun and to adopt a son of Radha Kant, cannot be believed, for Radha Kant and Gopi Mohun were then on ill terms with Krishna Gobind, as litigation was then going on between them in the High Court, Then the evidence adduced by the plaintiff that Krishna Gobind's consent was taken before the adoption of plaintiff in Kartick 1292 is also untrustworthy, for it is improbable that Krishna Gobind would give such consent when at that time he applied for revocation of the letters of administration taken out by Santomoni. It rather appears that Santomoni wrote a registered letter (Ex. VI) on 14th Assar 1291 to Krishna Gobind to give his consent to the adoption, and Krishna Gobind refused to take the letter. Hence it is clear that Krishna Gobind did not give his consent to the adoption. Santomoni's statement in her petition of objection in the probate case brought by Krishna Gobind that she adopted plaintiff as her son with the consent of Krishna Gobind was only made to give more validity to the adoption of the plaintiff. The will of Bissonath in the first part of its 9th paragraph directs that if Santomoni does any illegal act without any cause, or make any alienation without the consent of Krishna Gobind, her act and alienation would be void. It further directs in the second part of that paragraph, that she should adopt with the of Krishna Gobind, i.e., with the good advice of Krishna Gobind. It will therefore appear that with respect to the first part of the 9th paragraph, penalty is provided if the directions of that part are not complied with, but there is no penalty provided if the directions of the second part of that paragraph are not fully taken into consideration. The spirit of the will (vide the 2nd paragraph of the will) is that Santomoni should adopt a son, and in accordance with such directions she adopted the plaintiff as her son. She tried her host to take the consent of Krishna Gobind before such adoption, but Krishna Gobind, on the grounds shown above, refused to give consent. Santomoni under such helpless condition was obliged to adopt plaintiff as her son in order to save her property by paying off the debts of her husband by taking advances from plaintiff's natural father, Radha Kant. Under such circumstances, the adoption cannot be said to be invalid, merely because Krishna Gobind withheld giving his advice to such adoption. Further, there is no penalty provided if the adoption be made without the consent of Krishna Gobind. The primary desire of the testator, Bissonath, was that his widow should adopt, and the widow carried out such desire by adoption. The case of Beem Churn Sen v. Heera Lall Seal 2 I.J.N.S. 225 has, I think, no application to this case, for in that case consent was a condition precedent to adoption, and there was a provision in the will that on failure to get consent to the adoption the property would pass over to another. But no such penalty is prescribed in Bissonath's will in the present case. Hence the adoption of plaintiff by Bissonath's widow, Santomoni, is valid '.
3. This finding is attacked in the fifth ground of appeal, and we think, as we intimated in the course of the argument yesterday, that the judgment of the Subordinate Judge on this point is correct and should be confirmed. We think that all the testator intended was to suggest that his wife would exercise a sound discretion if in the matter of choosing a boy to be adopted she consulted Krishna Gobind, a man in whom he, the testator, seems to have reposed confidence. Looking at the religious efficacy that ensues from the adoption of a son by a widow to her deceased husband, we think the Court should not be too astute to defeat an adoption, but should rather do its utmost to support it, unless such adoption is clearly in excess or in breach of the power to make it. There was a case referred to by Baboo Mohini Mohun Roy upon this point Rangubai v. Bhagirthibai I.L.R. 2 Bom. 377 but, as pointed out in the course of the argument, the power of adoption there was entirely different from the power of adoption here, and we think that that case is not applicable to the facts of the case with which we are at present dealing.
4. With regard to the 7th issue, the Subordinate Judge finds that the anumati-pattro is invalid, He says: 'It seems to me that the clause for deb-sheba in the so-called agreement of dedication is too general in its nature and cannot properly be given effect to'. This finding was attacked in the grounds of appeal, but the objection to it has not been pressed. It was contended, however, that it was in the nature of a family arrangement, and that such family arrangement could not and should not be disturbed by the plaintiff without proper notice being given. This specific ground is not taken in the grounds of appeal. No authority in support of it was cited by the learned pleader who has so ably argued the case for the defendant-appellant, and we cannot give any effect to it.
5. Issues 8th and 9th were found against the defendants, and the findings with respect to those issues have not been attacked in appeal.
6. On the 10th issue it has been found that the family is governed by the Mitakshara law, and that finding has not been impeached. But it has been contended, and very forcibly, by Baboo Mohini Mohun Roy for the appellant that as Raghunath succeeded by right of survivorship to Bissonath's share in the joint estate on his (Bissonath's) death in 1290, Raghunath was not liable to be divested of such share by the plaintiff even if the adoption was good. That point was urged in the Court below, and upon that point the Subordinate Judge says as follows: 'The question now is whether Raghu can be divested of such property by the subsequent adoption of the plaintiff by the widow of Bissonath. I think under the authority of the Privy Council ruling in the case of Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo I.L.R. 1 Mad. 69; L.R. 3 I.A. 154 which has been misunderstood, as pointed out by Mr. Mayne [note (c), article or Section 172, Hindu Law, fourth edition] in the case of Kally Prosunno Ghose v. Gocool Chunder Mitter I.L.R. 2 Cal. 295 and as also pointed out by the counsel on both sides in the case of Nilkomul Lahiri v. Jotendro Mohun Lahiri I.L.R. 7 Cal. 178 the subsequent adoption of plaintiff by the widow of Bissonath would divest Raghunath of Bissonath's estate vested in him. But this rule will not apply to the case of collateral succession as laid down in the case of Nilkomul Lahiri v. Jotendro Mohun Lahiri quoted above. Mr. Mayne vide article or Section 179 Hindu Law fourth edition says that some passages in the judgment of Kally Prosunno Ghose v. Gocool Chunder Mitter are more broadly expressed than they would have been if the Court had not misconceived the facts of the Privy Council case of Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo. Then he goes on to say that the decision itself, coupled with the other case cited, seems to lead to the following conclusions, one of which is 'that when an adoption is made to the last male holder, the adopted son will divest the estate of any person whose title would have been inferior to his if he had been adopted prior to the death'. Hence the plaintiff as adopted son of Bissonath is entitled to claim the property of his adoptive father Bissonath'.
7. In support of this contention Baboo Mohini Mohun Roy relied upon, first of all, the case of Kalidas Das v. Krishna Chunder Das 2 B.L.R. F.B. 103. That case was tried on the Original Side of this Court by Mr. Justice Norman. The facts were that 'Deb Chandra Das died in the year 1832, leaving an only son Bireswar Das, who had been blind from his birth, and two widows, the survivor of whom, Pyari Mani, died in 1849. Bireswar, the blind son, being according to Hindu law excluded from inheritance, on the death of Pyari Mani, Gurudas, the nephew of Deb Chandra, occupied the position of heir of Deb Chandra. Bireswar having married, a son, Krishnan Chandra, was born to him in 1858. Bireswar died in 1861.' Upon these facts, Mr. Justice NORMAN, at page 106 of the report, says: 'In my opinion, on the birth of Krishnan Chandra, he became entitled to the inheritance from which his father had been excluded.' The case was heard on appeal by Sir Barnes Peacock, the then Chief Justice, and Mr. Justice A.G. MACPHERSON, and it being found that the decision of Mr. Justice NORMAN was in conflict with a previous decision arrived at by BAYLEY and MACPHERSON, JJ., the case was referred to a Full Bench, and the Full Bench decided that 'by Hindu law an estate once vested cannot be divested in favour of the son of an excluded person born after the death of the ancestor. Such ruling does not apply to the case of the son of an excluded person if, having been begotten and being in the womb at the time of the ancestor's death, he is afterwards born capable of inheriting.'
8. The next cases relied upon were a case of Bhoobun Moyee v. Ramkishore Acharjee 10 Moore's I.A. 279 and the case of Kally Prosunno Ghose v. Gocool Chunder Mitter I.L.R. 2 Cal. 295 which was a case tried on the Original side of this Court by two learned Judges, Mr. Justice Pontifex and Mr. Justice (now Sir) ROMESH CHUNDER MITTER. Reference was also made to a case which in the course of the argument has been called 'the Madras case'--Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo I.L.R. 1 Mad. 69; L.R. 3 I.A. 154.
9. With reference to the case of Kally Prosunno Ghose v. Gocool Chunder Mitter I.L.R. 2 Cal. 295 Mr. Mayne in his last edition of Hindu Law and Usage at p. 189 in a note, says: 'The facts of this case seem to have been misunderstood by the High Court of Bengal in Kally Prosunno Ghose v. Gocool Chunder Mitter post, Section 179 where they say at page 309 of I.L.R. 2 Cal --'The property in dispute in that case was not a joint-family property, and the surviving members of the joint-family unjustly took possession of it by excluding the widow of the owner, who was entitled by the Mitakshara law to succeed to it.' The property was joint, though impartible, and it was admitted that, as the brothers were undivided, the widow had no right to anything beyond maintenance.' And a reference to the facts of the Madras case would seem to show that Mr. Mayne has pointed out an error which really exists in the judgment of the Court in the case of Kally Prosunno Ghose v. Gocool Chunder Mitter. Then Mr. Mayne goes on to say at page 198, paragraph 179--'But the decision itself, coupled with the other cases cited, seems to lead to the following conclusions: First, where an adoption is made to the last male holder, the adopted son will divest the estate of any person whose title would have been inferior to his, if he had been adopted prior to the death,' and Mr. Mayne relies upon the Madras case, Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo I.L.R. 1 Mad. 69; L.R. 3 I.A. 154 as authority for that proposition.
10. Babu Mohini Mohun Roy argues that Mr. Mayne is mistaken in saying that the Privy Council decided any such question in that case; that all that they decided in that case was a pure question of fact: and he contends boldly that an estate once having vested in a male, who is capable of taking an absolute estate, such male is not liable to be divested of that estate except in the case of a subsequent heir being born who was conceived at the time such male who took the absolute estate entered into possession of it, or rather, unless such son who is subsequently born was conceived in the womb at the time of the death when the succession opened out. He says that such person is not to be divested of the estate, except in that one contingency.
11. We feel ourselves unable to accede to this proposition. It has been pointed out that there is a vast difference between an estate taken by a male and that taken by a female; that a male takes an absolute estate, a female a limited one; and that the divesting of an estate when once vested is repugnant to the Hindu law. It has been pointed out further that so repugnant is it to the Hindu law that even though a man may be guilty of such offences against the Hindu law as to be outcasted, or become a lunatic, or fall a victim to such physical maladies as would prevent his succeeding to an estate, yet once the estate is vested in him he cannot be divested: and it is urged that though there are authorities to show that a female who takes only a limited estate may be divested of it, a male who takes an absolute estate cannot be divested.
12. In principle we can see no real distinction between the two cases, between the divesting of a female who takes only a limited estate and the divesting of a male who takes a much larger estate than a female. That no such distinction, as a matter of fact, actually exists, we think we are warranted to say by reference to the judgment in the case of Mondakini Dasi v. Adinath Dey I.L.R. 18 Cal. 69. The head-note to that case which correctly represents the facts, is this: '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; but such adopted son 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 adopts him. When a man died leaving two widows and having given either of them the power to adopt a son, and the younger widow, on the refusal of the elder one to adopt, adopted a son: Held that the estate which was in the elder widow was divested by the adoption, and that the adopted son took all the estate of his adoptive father.' The judgment of the Court in that case was delivered by Mr. Justice GURU DAS BANERJEE; and at page 71 of the report, the learned Judge mentions what points were argued in appeal, and says that the fourth point argued was '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,' and at page 72 of the report, referring to that contention, the learned Judge says: 'The fourth point does not appear to have been raised in the Courts below. But as it is a point of law not requiring for its disposal any further inquiry 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 when 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 Bhoobun Moyee v. Ham Kishore Acharjee 10 Moore's I.A. 279 and Kally Prosunno Ghose v. Gocool Chunder Mitter I.L.R. 2 Cal. 295' (the case we have cited) '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 coming into existence see Kalidas Das v. Krishna Chandra Das 2 B.L.R. F.B. 103. 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; Drobomoyee v. Shama Churn I.L.R. 12 Cal 246 and Rup Chund 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. On the other hand, there are cases (some of which are exactly in point) which support the respondents' view that a son adopted by one of several widows to her deceased husband takes the whole of his estate, divesting the estate of all the widows. In Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo I.L.R. 1 Mad. 69; L.R. 3 I.A. 154 the widow of Raja 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. In Rukmabai 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 interests of the younger widow.' Then the learned Judge refers to an unreported case decided by this Court, and he goes on to say: 'The true rule deducible from all these cases is, as stated by Mr. Mayne in his learned work on Hindu Law and Usage (section 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 claims 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. 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.'
13. It is quite true that this paragraph which I have last read is an obiter dictum, and that it was not necessary for the decision of the precise case which the learned Judges had before them; but though it is an obiter, it is an obiter of a very learned Judge and one whose opinion upon a matter of this sort is entitled to the greatest possible respect; and it entirely coincides with our own view, because we are unable to appreciate the distinction which Baboo Mohini Mohun Roy has drawn between the relative value of an estate as taken by a male and that taken by a female, which is the basis of his argument.
14. We would desire to add this, that it seems to us that by acceding to the argument advanced by Baboo Mohini Mohun Roy, we should be striking an almost fatal blow at adoption, at any rate in Mitakshara families, and though Baboo Mohini Mohun has this morning in reply called our attention to certain passages in the Mitakshara and Dattaka Mimansa, which he says show that in the Mitakshara school adoptions are not to be favoured, it seems to us that, having regard to the religious efficacy which is said to result from an adoption to a deceased father, this is an additional reason for not acceding to the argument which he has laid before us.
15. Therefore in the result we think that the appeal fails, and must be dismissed with costs.