Macpherson and Banerjee, JJ.
1. This is an appeal from an order passed by the Subordinate Judge of Murshidabad, under Section 313 of the Code of Civil Procedure, setting aside a sale of immoveable property, on the ground that the judgment-debtors had no saleable interest in it.
2. The decree, in execution of which the sale was held, was obtained by the appellants before us against Golap Kumari Barmania and Bhabani Kumari Barmania, widows of the late Narain Singh, upon a mortgage executed by them in favour of the decree-holders. After the sale had taken place, applications were made by the judgment-debtors and by the auction-purchaser for setting aside the sale, the former contending that the sale was vitiated by irregularity resulting in loss to them, and the latter contending that the judgment-debtors had no saleable interest in the property sold. The application of the judgment-debtors was disallowed, but that of the auction-purchaser was granted by the Court below, the learned Subordinate Judge being of opinion that the judgment-debtors, Golap Kumari and Bhabani Kumari, had no saleable interest in the property sold, as the property, which originally belonged to the husband of those ladies, had vested in one Janki Singh, who had been adopted by Bhabani Kumari in accordance with the permission of her husband, Narain Singh.
3. In appeal it is contended, on behalf of the decree-holders, that this decision is wrong, and that, firstly, the Court below ought to have held that the judgment-debtors, or rather one of them, Golap Kumari, was entitled to the estate as heiress of her deceased son, Shib Persad, in whom the estate had vested on the death of Narain Singh; and, secondly, the Court below ought further to have held that even if the estate was vested in Janki Singh, the adopted son, still it was saleable in execution of the decree obtained by the appellants, as that decree was based upon a mortgage executed by the widows for the satisfaction of the debts of their deceased husband.
4. The facts upon which the first contention is based, and which are not disputed before us, are shortly these : The property in dispute belonged to one Narain Singh, a Hindu governed by the Mitakshara law, who died, leaving him surviving two widows Golap Kumari and Bhabani Kumari, and a son, Shib Porsad, by the former. The property was the ancestral property of Narain Singh, having been inherited by him from his father. Narain Singh, by a document which is styled a will, authorized his widow, Bhabani Kumari, to adopt a son, in the event of his son Shib Persad dying unmarried; but he made no disposition of his property, which was left to devolve according to Hindu law. Upon the death of Shib Persad, who died unmarried, Bhabani Kumari, according to the permission of her husband, adopted Janki Singh in the year 1290. The mortgage-bond, upon which the decree in favour of the appellants is based, was executed in Chait 1296, and the decree is dated the 9th December 1892, that is, some time in 1299. Upon these facts the learned vakil for the appellants contends, that, as the family is governed by the Mitak-shara law, and as the property in question was Narain Singh's ancestral property, he could not have disposed of it in any way, even if his so-called will contained, or could be construed to contain, any provision relating to the disposal of his property, and controlling or limiting the estate to be taken by his son; that, on his death, the property vested absolutely in his son, Shib Persad; that, on Shib Persad's death, the property was inherited by Golap Kumari as his mother; and that the adoption by Bhabani Kumari of a son to Narain Singh could not divest the estate that was vested in Golap Kumari as heiress of Shib Persad. In support of this argument, several cases were cited, of which we may notice here only the case of Lakshman Dada Naik v. Ramchandra Dada Naik I.L.R. 5 Bom. 48 : L.R. 7 I.A. 181, which is clearly an authority for the proposition that a Hindu, governed by Mitakshara law, cannot dispose of his property in whole or in part by will, if he has a son or any other co-parcener joint with him; and the cases of Bhoobun Moyee Debia v. Ram Kishore Acharjee Chowdhry 3 W.R. P.C. 15 : 10 Moo. I.A. 279, Annammah v. Mabbu Bali Reddy 8 Mad. H.C. 108, and Drobomoyee Chowdhrain v. Shama Churn Chowdhry I.L.R. 12 Cal. 246, which establish the proposition that an estate vested by inheritance in any person cannot be divested by a subsequent adoption to a person other than the person from whom the first mentioned party claims. On the death of Shib Persad, the property, which originally belonged to Narain Singh, and had vested completely in Shib Persad, passed by inheritance to his mother, Golap Kumari; she was not a party to the adoption of Janki Singh, and the adoption of Janki Singh by Bhabani Kumari, as an adopted son to Narain Singh, cannot have the effect of divesting Golap Kumari of the estate she inherited from her son.
5. The learned vakil for the respondents relied strongly upon the cases of Mondakini Dasi v. Adinath Dey I.L.R. 18 Cal. 69 and Surendra Nandan v. Sailaja Kant Das Mahapatra I.L.R. 18 Cal. 385, but those cases are clearly distinguishable from the present. In both those cases, the adopted son who claimed the property, divesting the estate of a person in whom it had already become vested, was the adopted son of the last male proprietor, the person whom he claimed to divest being his step-mother by adoption (if one may use that term), in the one case, and a co-parcener of his adoptive father in the joint estate, in the other case. The person whose adoption is said to have a divesting effect in the present case, namely, Janki Singh, is however, not the adopted son of the last male owner, Shib Persad, but is the adopted son of his father, Narain Singh, who owned the estate before Shib Persad; and in our opinion this constitutes an important point of distinction. The rule of law that was followed in the case of Mondakini Dasi v. Adinath Dey I.L.R. 18 Cal. 69 is stated in these words: 'A son adopted to the last male proprieter, 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 rested before his adoption in some heir other than the widow who adopts him.' We think the present case comes clearly within the scope of the latter part of the rule thus enunciated.
6. It was argued that Golap Kumari, the elder widow of Narain Singh, was under a religious obligation to assent to the adoption by Bhabani Kumari; and that if that was so, the adoption by Bhabani Kumari ought to be regarded as an adoption with the implied assent of Golap Kumari; and thus there would be no injustice in the adoption having the effect of divesting her of the estate. It is not alleged that Golap Kumari gave any express consent to the adoption of Janki Singh by Bhabani Kumari. That being so, and Golap Kumari having inherited the property, not from her husband, but from her son, we think it would be going too far to hold that she was under any such obligation to give her assent to the adoption by her co-widow as should have the effect of divesting her of her estate in this case.
7. Upon the authorities, therefore, we must hold that the adoption by Bhabani Kumari would not have the effect of divesting the estate of Golap Kumari, and, if that was so, it could not be said that the judgment-debtors had no saleable interest in the property.
8. It was contended for the respondents that one- of the judgment-debtors, at any rate, namely, Bhabani Kumari, had no interest of any kind in the property sold upon any view of the case. That may be quite true, but that does not in any way improve the respondents' position; for though Bhabani Kumari, in the view we take of the case, had no interest in the property sold, Golap Kumari, the other judgment-debtor, owned the entire interest in it.
9. In this view of the case, it becomes unnecessary to consider the second contention raised on behalf of the appellants.
10. The order of the Court below, setting aside the sale, on the ground that the judgment-debtors had no saleable interest in the property sold, must be reversed, and the sale confirmed. The appellants are entitled to their costs.