Sivamma vs Malamma

Manohar Pershad, J.—A Division Bench of this Court consisting of myself and my learned brother, Qaliluzzaman Siddiqui, J., referred the case to the Full Bench because of the importance of certain question of law relating to adoption by a Hindu widow in pursuance of authority given to her by her husband.

The facts upon which the decision turns may be stated quite shortly: The parties are Lingayats by caste and are governed apart from special family customs by the Dravida School of the Mitakshara Law. The following pedigree will show the relationship of the persons to whom reference will have to be made:

HANMAPPA (Deft.) = MALLAMMA (Deft. 1) | | ______________________________________ Bandappa | | | | (Adopted son) Shivnmma Rudramma Gurbasamma Ehimanna Deft 2 (Plff.) (Deft. 8) (Deft. 4) (Deft.)

The Plaintiff states inter alia that Hanmappa the last holder of the suit property, died on 7th Khurdad 1343 Fasli. He was the watandar and Moqadam Mali and Kotwali Patel. After his death the virasat was sanctioned in the name of his son Bhimanna who died on 7th Aban, 1349P. and his virasat was sanctioned in the name of Defendant No. 1, the mother. Thereafter she started proceedings for sanction of the adoption of Defendant No. 2 alleging that sometime prior to his death, her husband had given her permission to adopt a son to him, stating that his son Bhimanna was sickly and in case he died she should adopt Bandappa to continue his line. It is alleged by the Plaintiff that as a matter of toot Hanmappa had not given any permission to Defendant No. 1 nor does the question of such permission arise especially when Bhimanna was alive.

It is not correct that Bhimanna was sick. Defendant No. 1 had on 26th Shehrewar, 1351 F. executed an adoption deed and got it registered though as a matter of fact no adoption had taken place. Defendants Nos. 3 and 4 have colluded with Defendant No. 2 and as they refused to join with the Plaintiff in the suit, they are impleaded as Defendants. The Plaintiff, therefore, prayed for a decree for declaration that the adoption of Bandappa was invalid and liable to be cancelled as no adoption has taken place.

Defendant No. 1 admitted the claim of the Plaintiff. Defendant No. 2 denied the allegations of the Plaintiff and alleged that his adoption had taken place in pursuance of the authority given to the widow by her husband. A legal objection was also raised that the Plaintiff has no right to sue. Defendants 3 and 4 did not file any written statements; and as against them the proceedings were ex-parte.

On these pleadings, the Court of first instance after framing the necessary issues and recording evidence of the parties, dismissed the suit holding that the adoption by Defendant No. 1 was valid and that she had the requisite authority to adopt. Aggrieved by this judgment, the Plaintiff went in appeal to the District Court, Raichur, which was dismissed and she has come here in second appeal.

This appeal was first argued before me and my learned brother, Qaliluzzaman Siddiqui J. It was urged that the adoption by Defendant No. 1 is not valid as the widow had no authority to adopt and, that as a matter of fact the adoption has not taken place. Next, it was contended that Hanmappa had died leaving a son Bhimanna and after his death the Defendant No. 1 got the property as his heir, and hence she was not entitled to adopt as she could only adopt to her husband.

The Division Bench did not accept the first contention of the Appellant and agreed with the concurrent findings of the Courts below on the second question and held that the adoption is valid as the widow had the requisite permission to adopt. As regards, however, the validity of the adoption by the widow after the death of a son, the Division Bench was of the opinion that having regard to the importance of the question, the whole case should be referred to the Pull Bench. In the result, the whole case has come up before the Pull Bench for disposal.

Shri Abdullah Timmapuri, Advocate, appearing on behalf of the Appellant urges firstly that the widow had no authority to adopt. His second contention is that the adoption is not proved. The third contention is that the power of the widow to adopt came to an end once Hanmappa died leaving a son and it could not be revived on the death of the son. The learned Advocate insisted and took us through the entire evidence.

After going through the record, I am of the opinion that the contentions of the learned Advocate so far as the factum of adoption and the authority to adopt are concerned, are incorrect, and still hold the same view as I had held earlier in the Division Bench and I do not see any reason to resile from that position. The learned Advocate drew our attention to certain discrepancies in the statements of the witnesses regarding the authority given by Hanmappa to his wife. In my opinion these discrepancies are not of much moment no material. The learned Advocate lays emphasis on the improbability of Hanmappa''s giving his wife permission to adopt when there was a son alive. I see no force in this contention for the simple reason that the authority alleged to have been given to the widow, was only a conditional one: that if the child who, it may be pointed out, was only seven months old and was ailing, died she might take a son in ad-option. I may point out that it is not uncommon for persons to direct their wives to take a son in adoption in the event of a natural son''s death. Therefore, in my opinion, the existence of the son does not make the giving of permission improbable, because it is always the cherished de-sire of Hindus that their line should continue. As regards the child being always sickly, I am not inclined to differ with the findings of the lower| Courts which are concurrent. The strong factor which the Plaintiff has to reckon with and which supports the Defendant as regards the authority to adopt is evidence of Defendants Nos. 1 and 3 in the Adoption Statement (Takhte Tabniat) in the Revenue Courts Defendant No. 3 is the daughter haying a share in the property of Hanmappa equally with the Plaintiff. If Mallamma had no permission to adopt, Defendant No. 3 would not have stated in the Revenue Court that she had such authority which would be tantamount to jeopardising her own right to inheritance. This disposes of the first contention.

With regard to the factum of adoption the learned Advocate drew attention to the depositions of the witnesses, but as stated above, I do not see any reason to differ from the concurrent findings of the Courts below.

The next question, which is of real importance, is the validity of the adoption by Mallamma. The learned Advocate points out that the real object of the alleged adoption was to get hold of the property. He contends strenuously that since after the death of Hanmappaj the estate had vested in his son Bhimanna, the]] power of adoption of the widow was at an end It is also urged that where the husband, from whom the power to adopt was derived, left a son to succeed him, the power of the mother came to an end. The two lines of reasoning are, in my opinion, distinct. The first approaches the question from the point of view of vesting or divesting of rights in property. The second pertains to the religious or ceremonial efficacy.

On behalf of the Respondent it is contend ed that the power to adopt does not in the least depend on the vesting or diverting of property and the sole object is that the line should be continued and in this regard he has cited a number of authorities.

Before discussing the case-law, I would like to mention the essential features of the doctrine of adoption among the orthodox Hindus:

The origin of the custom of adoption is lost in antiquity, and may well have been no more than the natural desire for a son as an objects of affection, a protector in old age, and lastly an heir. However, this may be, it is certain that through all the centuries which have seen the spread of Brahminical influence, and among all classes which have come under Its sway, a peculiar religious significance has attached to the son. He is so essential to the spiritual welfare of the souls of his immediate ancestors that an extensive class of subsidars sons was admitted to the family, all of whom could perform the necessary ceremonies, though only some of them were allowed full rights of inheritance. Of these among the orthodoxy classes only the adopted son is now recognised who is, in the absence of an Aurasa, or natural born son, clothed with all the attributes of a son, and is from the date of his adoption regarded as having been born in his adopted family.

In the words of Manu:

the father by the birth of a son discharges his debt tourist progenitors: through him he attains immortality: by a son a man attains victory over all people: and afterwards by the son of that grandson he reaches the solar abode; a son [is called ''putra'' because he delivers his father from the hell known as ''Put''. In the Dharma Sutra of Bhoudhayana, the formula prescribed for adoption is--''I take thee for the fulfilment of my religious duties: I take thee to continue the line of my ancestors.

It is clear, therefore, that the foundation of the Brahmanical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of his line and the solemnisation of the necessary rights. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the father''s duty has been performed and the means provided by him for its fulfilment is spent: The ''debt'' he owed is discharged and it is upon the new generation that the duty is now cast and the burden of the debt is now laid. It can, hardly, be doubted that in this doctrine the devolution of property, though recognised as the inherent right of this son is altogether a secondary consideration. Sir James Colville, in delivering the judgment of the Board, in the case of Sri Raghunadha v. Sri Brozo Kishore 3 Ind App 154 (PC) (A) observed at. p. 192 that:

A distinction which is founded on the nature of property seems to belong to the law of property and to militate against the principle which Holloway J. has himself strenuously insisted upon elsewhere, viz. 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 con-sequent devolution of property a mere accessory to it.

Having regard to this well-established doctrine as to the religious efficacy of sonship, I feel that great caution should be observed in shutting the door upon any authorised adoption by a widow of a sonless man. I may refer to, in this connection, to ''Suryanarayana v. P. Venkatramana 33 Ind App 145 (PC) (B). I may further point out that the Hindu Law itself sets no limit to the exercise of the power during the lifetime of the donee, and the validity of the successive adoption in continuance of the line is now well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property. But I feel that there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance or inequitable in the face of other rights to allow it to take effect. This has been recognised by the Courts in India and the Privy Council and it is a difficult question as to where the line should be drawn, and upon what principle. In sport of the line of reasoning based upon the testing of property in an heir other than the adapting widow, counsel for the Appellant relied Eon the often quoted judgment delivered by board, Kingsdown in Bhoobun Moyee v. Ram Kishore 10 Moo Ind App 279 (PC) (O).

There one Gorikishori died leaving a son Shavani and a widow Chandravali Devi to whom Be-gave authority to adopt in the event of Bhavani''s death. Bhavani died at the age of 24 without issue but leaving a widow Bhuban Moyee to succeed by inheritance to his property. Chandravali Devi then adopted Ramkishore who sued Bhuban Moyee for the recovery of the estate. It was held by their Lordships that his claim, failed. The parties were governed by the Daya-Dhag Law and Bhuban Moyee would have succeeded to Bhavani''s property in preference to Ramkishore even if he had been a natural born son of Gorikishori and it was held that: "It was contrary to all reason and to all principles of Hindu Law that he should displace the rightful heir". After the death of Bhuban Moyee, Ramkishore got possession of the property and if his adoption was good he was undoubtedly the next heir. His title was, however, disputed by distant collateral and the validity of his adoption was the subject of another suit. The High Court of Bengal held in favour of the title of Ramkishore considering that the Privy Council in the previous casehad only affirmed the prior right of Bhuban Moyee and had not held the adoption to be invalid. This case again came up before the Privy Council in the case of Padma. Kumari Debi v. Court of Wards 8 Ind App 229 (PC) (D). It was held that: "upon the vesting of the estate in the widow of Bhavani, the power of adoption was at an end and incapable of execution".

These authorities were again considered in a case from Madras--Thayammal v. Venkatarama 14 Ind App 67 (PC) (E). The question there was of the right of succession to the estate of one Kuttisami who had died without any issue leaving his widow Thangammal as his heir. After his death, his mother Thayamal with the permission of the sapinda adopted a son to the father of Kuttisamy and the validity of the adoption was disputed on the ground that the survival of the son''s widow and the vesting of the estate, in her put an end to the right of Thayamal, and, their Lordships were of the opinion that this objection was fatal to the adoption, and that the learned Judges of the High Court who had so decided were correct in considering that the case was governed by the authorities referred to above. ''Thayammal''s case (E)'' was followed in--Tara-churn v. Suresh Chunder 16 Ind App 166 (PC) (F) where Sir Richard Couch observes at p. 170:

On the son''s death after coming to age leaving Matangini his widow, Madhub Chander''s wife would not have power to adopt a son, the estate of Kali Charan having become vested in his widow.

It appears, therefore, that it was well established that a power of adoption in a mother was extinguished when her son had died leaving a widow to whom the son''s estate passed by inheritance. Relying on this judgment it is urged that it was upon the vesting of the property that the determination of the power of adoption de-, pended. Undoubtedly, certain passages in the judgment relied on seem to suggest that it was the succession to the estate by the son''s widow that was the determining factor, yet it was never so laid down by their Lordships in precise terms. The dominant consideration might have been the right of property and equitable claims may not have been without their influence, but the ceremonial side was not altogether ignored. In--Bhooban Moyee''s case (C)'' Lord Kingsdown evidently relied upon the fact that Bhavani had died at an age which enabled him to perform--and It was to be presumed that he had performed, all the religious services which a son could perform to a father and refers to the doctrine of Hindu Law that the husband and wife are one and that in the widow half of the husband survives. It is at least material that in each of the other cases it was the existence of the son''s widow that stood in the way of the adoption, and that in none of them '' was there any suggestion that the same rule would apply if the heir in whom the property had vested were some one other than her.

In 3 Ind App 154 (PC) (A)--Bachu v. Manlcorbai 34 Ind App 107 (PC)(G); and Yadao v. Namdeo AIR 1922 PC 216 (H), it has been held by their Lordships of the Privy Council that:

the vesting in any other coparcener does not put an end to the power of adoption. That is so, and cannot be questioned. It also appears to be settled law that where the son dies in infancy or before attaining what is referred to as ''ceremonial competence'', leaving his mother ,as his heir, her power of adoption is still exercisable.

I may refer to the following cases in this connection: Vellanki Venkata v. Venkatarama 4 Ind App 1 (PC) (I); Vera Bhai v. Bai Hirabai 30 Ind App 234 (PC) (J) and Malappa v. Hanmappa AIR 1920 Bom 238 (K).

This question came up later for consideration in--Pratap Sing v. Agarsinghji AIR 1918 PC 192 (L). In this case the litigation related to a village which had formed part of the impartible estate of the Bombay Presidency and had been the subject of a maintenance grant to a junior branch of the family. By the custom of the family such grants reverted to the estate upon the failure of the male grantee. The last holder Kaliasingh died in October 1903 childless but leaving a widow who five months later adopted the Appellant. The Respondent, the owner of the principal estate, sued for recovery of the maintenance lands on the allegation that they vested in him on Kaliasingh''s death, and that consequently the adoption was invalid. The Subordinate Judge dismissed the suit but his decision was reversed by the High Court on the ground that the land having once vested in the Respondent, the subsequent adoption could not divest it. It was held by their Lordships that:

notwithstanding that the property had vested in the Respondent, the adoption was good.

It was further observed that:

the right of the widow to make an adoption is not dependent on her inheriting as a Hindu female owner her husband''s estate.

It follows, therefore, that the vesting of property on the death of the last holder in some one other than the adopting widow, be it another coparcener of the joint family or an outsider claiming by reversion, cannot be in itself the test of the, continuance or extinction of the power of adoption. For these reasons I am of the opinion that the reasoning of vesting and divesting of property upon which the Appellant relies for setting aside the decision must fail.

To my mind, the true principle must be found upon the religious side of the Hindu doctrine already adverted to, and not upon a question of vesting or divesting of property. The true reason must be that where the duty for providing the continuance of the line for spiritual purposes which was on the father and laid by him upon the mother has been assumed by the son and by him passed on to his grandson or son''s widow, the mother''s power is gone, but if the son dies sonless and unmarried, the duty will still be in the mother, and the power in her which was necessarily suspended during the son''s life time will revive. There is, in my opinion, noth- ing in the Hindu Law which is contrary to this and nothing in the decisions of the Privy Council which would induce me to hold otherwise. It is I think, in accord with the acceptance by Mr. Amir Ali in ''AIR 1918 PC 192 (L)'' of the view that among Hindus the male line is not regarded as extinct, or a man to have died without issue un- til the continuation of the line by adoption is pos- sible. A certain amount of misimderstanding was created by the aforesaid judgment of the Privy Council that the right of adoption depended on the vesting and divesting of the property and which came to an end when the property vested in another person. All these points were considered in the case of AIR 1933 155 (Privy Council) (M) wherein-it was held by their Lordships that:

the vesting of the property on the death of some one person other than the adoptive widow be it either another coparcener of the joint family or an outsider claiming by reversion or, be inheritance cannot be in itself the test of the continuance or extinction of the power of ad- option.

Following the principle laid down in the case of AIR 1933 155 (Privy Council) (M)'', the Bombay High Court in the case of Anant Govind Ginde Vs. Dnyaneshwar Balkrishna Ginde, (N), Pandurang Bhau v. Changuna Bai AIR 194 Bom 104 (O) and Maruti Dhondi v. Guns Dhondi AIR 1948 Bom 182 (P), held that:

The adoption by the mother is valid.

This question of the power of adoption came up for consideration before the Privy Coun cil again in the case of-- AIR 1943 196 (Privy Council) (Q), AIR 1945 16 (Privy Council) (R) and in both these cases it has been helf that:

the power of a Hindu widow to adopt does no come to an end on the death of the sole sur viving coparcener. Neither does it depend up on the vesting or divesting nor can the righ be defeated by partition between the coparceners.

In other words, the principle laid down in ''All 1933 PC 155 (M)'', has been approved by these later decisions.

This question came up for consideration in the Nagpur High Court in the case of Bapuji Ramjl v. Gangaram Madhao Rao AIR 1941 Nag 116 (S) and it has been held by Stone C.J. and Clarke J. that:

where A dies leaving behind him his widow and his son B, B dying leaving behind widow D, D remarrying, C''s power to adopt son revives as is desired by her husband A.

In this case also the Privy Council decision, of ''Amarendra Man Singh v. Sanatan Singh (M) has been discussed and relying on that authority it has been held that the adoption by the moths was valid.

Similar discussion is found in the case Mt. Prem Jagat Kuer v. Harihar Bakhe Singh AIR 1946 Oudh 163 (T) wherein if the been laid down by Misra and Kaul JJ. that:

A widowed mother cannot adopt if she the son and the son dies leaving a widow to continue the line by making an adoption but why the son''s widow dies without adopting to mother''s power of adoption is revived and can adopt.

In this case also the Privy Council case of AIR 133 PC 155 (M) and the case in ''AIR 1941 Nag 116 (S)'' have been relied on.

The Bombay High Court in the case of Shamrao Babaji Lokare Vs. Bhimrao Kondi Lokare, (U), has taken a different view from the previous authorities, and has held that:

the test to determine whether the widow has the power to adopt or not on the death of her son, is, has that son left a son or has that son left a widow If either of the contingencies is present, then the widow has no longer the power to adopt. It comes to an end and is not revived after the death of both the grandson and the son''s widow.

his Court also in the case of Kashi Garu v. Basant Rao 31 Deccan LR 11 (V) and 32 Deccan LR 594 (W)'' has taken a similar view, but there are three other cases of this Court--one an unreported case of Balaji v. Sundra Bai No. 337/4 of 1355P. (Hyd)(X) & the others are the judgments of the Judicial Committee reported in Venkat Kishan Rao v. Venkat Kishtia 22 Deccan LR 337 (Y) and Guna v. Baba Rao 34 Deccan LR 449 (Z).

In the unreported case the decision of the Privy Council in-- AIR 1933 155 (Privy Council) (M), has been followed and it has been held that "the right of the widow to adopt does not depend on her inheriting the property from her husband", but in this case the fact whether the right of the widow is extinguished or kept in abeyance has not been discussed. In ''22 Deccan L R 337 (Y) it has been laid down by the Judicial Committed that:

though adoption is regarded as a religious act having for its purpose, the creation of a son who could offer oblations for the future well-being of the father and that though it is not necessary that the widow should inherit any property, still the, adopted son cannot deprive the other members of the family from the property which they had acquired prior to the adoption.

Similar observations have been made in 34 Deccan LR 449 (Z)'', But in both these cases the question of the widow and the fact whether her right to adopt is extinguished or kept in abeyance have not been discussed. Thus these two cases are not direct to the point.

If the Bombay case in-- Shamrao Babaji Lokare Vs. Bhimrao Kondi Lokare, (U)'', is taken to be the test then it would in my opinion defeat the very idea of the continuance of the line. The Hindu Law itself sets no limit to the exercise of the power to adopt during the lifetime of the donee and the validity of successive adoptions in continuance of the line is'' now well recognised. Nor do the authoritative'' texts appear to limit the exercise of the power by any considerations of property.

West and Buhler pointed out in the Treatise on Hindu Law that:

The Hindu lawyers do not regard the male line to be extinguished or a Hindu to have died without a male issue until the death of the widow renders the continuance of the line by adoption impossible.

(West and Buhler, 3rd Edition, 996) It would follow that the power of the widow (mother) is never extinguished but is only kept in abeyance and it will revive in case she is the only one left in the family.

In the light of this discussion if we consider the facts of the present case, we find that Hanmappa died leaving a widow Mallamma and a son Bhimanna. Mahamma alleges that her husband had given her the permission to adopt. After the death of Hanmappa, Bhimanna became the owner. The right to continue the line devolved on Bhimanna and in his lifetime the widow could not have adopted. Bhimanna, however, died at an early age before attaining ceremonial competence and Mallamma succeeded to the property and she has adopted Defendant No. 2. In other words the authority given to Mallamma, which was in abeyance during the lifetime of Bhimanna, revived on his death; and an adoption by her would be deemed to continue the line. I am not concerned here to consider what would have been the position if Bhimanna had left a widow. I am, therefore, of the opinion that the adoption of Defendant No. 2 is not only proved, but valid. In the result, the cases decided by this Court in--''31 Deccan LR 11 (V), and--''32 Deccan LR 594 (W) cannot be held to lay down the correct law and they cannot be followed. The appeal is, therefore, dismissed with costs.

Siadat Ali Khan, J.

This is Appeal No. 5, Register No. 4, Full Bench of 1359 P. The Appellant, Sivamma''s suit for the declaration of right and title to suit property was dismissed by the Munsiff Court, Devodurg, on 22nd Isfandar 1355 P. and an appeal to the District Court, Raichur, was dismissed on 21st Aban 1355 P.

On second appeal, the Division Bench of this Court referred the case and the following question of law namely, whether a Hindu widow who has inherited property from her son can make a valid adoption. Thus, the case has come up before us. We have heard the arguments of the learned Advocate Shri Mohd. Abdullah, for the Appellant, and the learned Advocate Shri Sadasiva Rao, for the Respondent.

I have had the advantage of perusing the elaborate judgments of my learned brothers, Manoher Pershad and Shrinivasa Chari, JJ., and as I agree with them, I need not write much. But as the learned Advocate for the Appellant has greatly emphasised the factual side of the appeal and as the old Hyderabad CPC is applicable to this case and under it questions of fact determined by two Courts were also revisable in second appeal, I may add a few lines mainly on this.

The learned Advocate argued that as the deceased Hanumappa had left surviving him Bhimanna, a son with three other daughters, it was not probable that he could have authorised his wife Malamma to adopt a son and that too, the particular child, Bandappa, who was his sister''s son. He has argued that a scrutiny of evidence will show that no authority was given and in fact, no adoption did take place. He has pointed out that after the death of her own son Bhimanna, Mallamma applied for the registration of the numerous lands of her husband in her name. In that application to the Collector, she did'' not mention that she was so authorised. He has also stressed that no father can visualize the death of his child of tender age, who has not been shown to be sickly or of ill-health and who, as a matter of fact, lived to be a boy and died in the epedimic of Plague.

He has referred to the three witnesses of the Plaintiff, Devappa, Hanumanth Rai and Kar Basappa who have all deposed that the boy Bhimanna was hale and hearty all through his life and only died by Plague in 1349 P. The last mentioned witness has also deposed that the deceased expressed his last desire that the lands should be registered in the name of his son Bhimappa. Coming to the evidence of the Defendant''s witnesses, he has argued that D. W. 1 and 2 Pampanna and Basan Guda have not said a word in their depositions about the authority to adopt and confined themselves to an account of the illness of Malamma and of her treatment. D.W. 3 Dr. Laxman Rao, has deposed that he treated Malamma. The text 2 witnesses D.W. 4 Subba Rao and D.W. 5 Vasana have deposed about the authority to adopt. The former has deposed that he went to the deceased in his illness and he related to him that the child Bhimanna was sickly and that he fears that he might not live long.

The learned Advocate argued that the child was at that time 6 to 7 months of age and the deceased died more than two months after the conversation; that in such circumstances, there was no occasion to fear the death of the child who was according to the Plaintiff''s witness quite hale & hearty & that this witness has deposed to the incident after 12 years; that the way in which he has given his evidence shows that he was speaking as if the conversation had taken place only yesterday. Similarly, the learned Advocate pointed out that D.W. 5 also spoke to the giving of authority to adopt at the time when the child was 4 months old, but that it should be noted that the witness was not of the same village as of the deceased and was speaking after 11 years of the conversation.

The rest of the Defendant witnesses are about the factum of adoption. D.W. 6 is Purbiah, D.W. 7 is S. Vaniary, D.W. 8 is Malayya, D.W. 9 is Chandrayya, D.W. 10, a Vakil and D.W. 11 Basalingamma. The comments of the learned Advocate on these witnesses are that it should be noted that among the witnesses the parents of the adopted son are very active. There appears to be no reason why when the deceased had a grandson living, he should have preferred Bandappa who was the child of his sister; usually Hindus give preference to their daughter''s son and there was a daughter''s son already born to the deceased. The learned Advocate argued that having regard to the decision of their Lordships of the Privy Council in-- AIR 1933 155 (Privy Council) (M) much emphasis should not be laid on the spiritual benefit derived from adoption as the element of inheriting property is never absent.

I have carefully considered the arguments of the learned Advocate for the Appellant. I cannot forget that among Hindus the desire to continue the line is very strong. I tried hard to agree with the learned Advocate that no father can ''contemplate the demise of his child of tender age, but could not do so as this is not the only case in which such a story has been put up. Numerous, cases have come to our notice wherein fathers have been found making provision in the contingency of their sons of tender age. The fact that Malamma did not mention the authority in the succession proceedings to her son is not conclusive also. She was bound under no law to disclose it at that stage and regard should also be, had to the natural desire of Malamma to get the extensive and valuable lands of her husband registered in her own name as against Bandappa whom she had the authority to adopt. It cannot be denied, that in fact, the registration of lands in her own name gives her an advantage over her minor adopted son.

I agree, that the Hindus give preference to a daughter''s son but in my opinion, this is not sufficient basis for holding that no Hindu can have any other preference. It does not appear to me on a perusal of the evidence that there are sufficient reasons for disbelieving the Defendant''s Wit-nesses who have deposed to the deceased''s preference to the son of his own sister. I am of the opinion, that though it may not be impossible to form a different opinion from the concurrent findings of both the Courts, still, on the whole, I do not think, that the concurrent findings of both the Courts are so perverse as to justify my coming to a different conclusion. Hence this factus aside of the case, in ray opinion also, should Be decided against the Appellant.

There remains the legal side. The learned Advocate for the Defendants has given reference to the cases,--''10 MIA 279 (PC)(C) : 8 Ind App 229 (PC)(D) : 14 Ind App : 67 (PC) (E)'', AIR 1933 155 (Privy Council) : AIR 1943 196 (Privy Council) , Shamrao Babaji Lokare Vs. Bhimrao Kondi Lokare, .

My learned brother, Manoher Pershad J.''s judgment gives the facts and the decisions of these| cases in extenso. The conclusions of these cases are clear that among the Hindus, the adoption is a spiritual necessity which all Hindus who are not blessed with sons feel to subserve their spiritual needs. Having a son, whether natural or adopted, is considered a debt to forefathers and it is paid only when a son is born or failing that one is adopted; one who has not adopted in his life time gives the authority to adopt to his wife to be exercised after his death. This authority continues till the widow lives, and even if the deceased leaves behind him a son, at the time of his death, he can still empower his widow to adopt in case, anything happens to the son; that in SUCH cases the power to adopt is not extinguished and merely suspended during the lifetime of the son; If the son dies unmarried and issueless, the power of the widow to adopt revives.

There are complications when a son dies married and authorises his widow to adopt. But we are not concerned with them in this case, as Bhimanna has died at the tender age of about 9 years un-married and without any issue. In this context there can be no doubt whatsoever, that the power of the widow during the lifetime of the son is merely suspended and revives on the death of the son. There is no question here of vesting and divesting of property. The argument the property once vested in the son cannot be divested and succession should be traced from the son does not come in the way of the widow''s power to adopt where she has authority, to adopt in cases, it is required.

There are a few cases of the Bombay High Court against these general propositions in which it has been held that the power to adopt is extin-guished when there is a son. But having regards to the trend and weight of authority and to the texts of Hindu Law mentioned in the cases cited in the margin I do not think, that it will be correct to agree with the Bombay cases. In the re-suit I agree that this appeal should be dismissed with costs.

Srinivasa Chari, J.

This case has come before the Fun Bench on a reference having been made by the Division Bench by its referring order, dated the 29th Bahman 1359 P. by which the learned Judges of the Division Bench referred the whole case for the consideration of a question of Hindu Law arising therein. These proceedings arise out of a suit Instituted by one shivamma against Mallamma, Bandappa, Rudramma and Gurbasamma, for a declaration that the adoption of Bandappa by Mallamma was invalid and did not take place and was liable to be cancelled. Hanumappa was the just holder of the suit property, Mallamma, Dependant No. 1, is his widow. Shivamma, the Plain-tiff, Rudramma and Gurbasamma, Defendants 3 and 4 are the daughters, of the said Hanumappa. In. addition to these daughters, Hanumappa had a ''''son by name Bhimanna. It is stated that Hanumappa, sometime prior to his death, when he was ailing, gave permission to his wife, Mallamma, to adopt a boy to him stating that his son, Bhimanna was sickly and that if he died she might adopt Bandappa as a son to him in order to continue the lineage. Hanumappa died on 7th Khurdad 1343 P. leaving him surviving a son Bhimanna about 7 months old, his widow, Defendant 1 and three daughters mentioned above. Bhimanna the son died six years after i.e., on 7th Aban 1349 P. It is stated that Mallamma adopted Bandappa, Defendant 2 two years later on 26th Shehrewar 1351 F. in pursuance of the authority given to her by her husband.

The present suit filed on 26th Isfandar 1355 P. was brought by one of the daughters, Shivamma, praying for a cancellation of the adoption. She pleaded (a) that there was no permission to Mallamma to adopt a boy; (b) that no adoption took place; and (c) that even if the adoption could be regarded as having taken place it could not be held to be valid, because Mallamma could not have adopted because her husband, Hanumappa, had left a son, Bhimanna, surviving. The parties led both documentary and oral evidence and on the evidence on record both the trial Court and the lower Appellate Court came to the conclusion (a) that the : permission relied upon by Defendant 1 was proved, (b) that the adoption of Bandappa was established and (c) that the adoption could not be held to be invalid.''

Against the aforesaid judgments, the Plaintiff appealed to this Court and the learned Judges of the Division Bench agreed with the lower Courts with regard to the authority as well as the factum of adoption and held that both were proved. In so far as the question of the right of Mallamma to adopt a son was concerned, the learned Judges were of the opinion that inasmuch as there was conflict of opinion in the decisions of this Court, the matter should be considered by a Puller Bench. Hence they referred the whole case to the Full Bench. We heard the arguments of the respective Advocates in extenso.

It is clear that the person relying on an adoption has not only got to prove the authority of the widow to adopt but also the factum of adoption. We should not have gone into these I questions having regard to the fact that the Courts below were concurrent in their findings and the learned Judges of the Division Bench also expressed the same view but it was argued by the learned Advocate for the Appellant that this was an apt-peal which was filed before the application of the Indian CPC to Hyderabad and, therefore, Section 100 would not come in the way and it was open to us despite the concurrent findings of the Courts below to go into the evidence and come to a different conclusion if the evidence warranted the same. We, therefore, allowed the parties to take us through the evidence also.

On going through the evidence exhaustively we feel that the conclusions arrived at by the Courts below are correct and are supported by the evidence on record. The learned Advocate for the Appellant invited our attention to certain discrepancies in the statements of the witnesses who have come to depose about the authority given by Hanumappa to his wife. I feel that the discrepancies pointed out by the learned Advocate are not very material and could be ignored. The Appellant''s learned Advocate laid stress upon the improbability of Hanumappa giving his wife permission to adopt when there was a son alive.

This argument also does not appeal to us for the reason that the authority given by him was only a conditional authority that if the child, 7 months old and said to be ailing, died she might adopt a son to him. It is not uncommon for persons to direct their wives to take a son in adoption in the event of the natural son dying. Therefore, the existence of the son does not make the question of the person giving permission to his wife an improbability, because it is always the cherished desire of Hindus that their lineage should be continued at any cost.

As regards the infant child being always ailing, the Defendant has produced evidence and the evidence produced on behalf of the Plaintiff, in my opinion, has not rebutted the evidence produced on behalf of the Defendant. Therefore, the infant son being sickly is well established. One strong and important factor in this case cannot be ignored and this factor, in my opinion, goes to strengthen the case of the permission very much. It would appear that Mallamma applied for permission to adopt Bandappa and therein she mentioned that she had been authorised by her husband to adopt and there is mention of this fact in the sanction that has been accorded by the Revenue Department and before the sanctioning authority the other members of the family, Defendants 3 and 4, viz., the daughters of Hanumappa, have given their statements wherein they admitted that their father had given their mother permission to adopt.

The application of Mallappa for permission to adopt has been proved by D.W. 7 Venkatappa, the Vakil, who appeared for her and the fact that the daughters as well as Mallamma stated in their statements before the Revenue Department that permission had been given by Hanumappa is embodied in the order giving permission to adopt. I do not see how these documents could be ignored especially when these statements and these proceedings took place ''ante litem motam''. The statements made by the daughters in those proceedings were against their interest and, therefore, it is a very strong circumstance supporting the case of the Defendant No. 2 regarding permission to Defendant 1 to adopt.

With regard to the factum of adoption, Defendant No. 2 has examined D.W. 6, D.W. 9 and D.W. 10 and the trial Court which had decision to record the statements of these witnesses and also watch their demeanour has believed their statements. The lower Appellate Court has agreed, with it. No strong grounds have been urged by the Appellant''s learned Advocate to induce me to differ from the opinion of the trial Court confirmed by the Appellate Court. That'' being so, in so far as the question of the actual permission, given by Hanumappa to Mallamma to adopt and the factum of the adoption are concerned, I am one with the. Courts below that both are established.

The next question which is really of impor-tance in this case is as to whether by reason of the fact that Hanumappa left a son, Bhimanna, surviving him, the right of Mallamma to adopt a son to Hanumappa in pursuance of the authority given to her could be regarded as having been extinguished. The old view before the case of AIR 1933 155 (Privy Council) , was that the power to adopt was a power which depended upon the property vesting in the adoptive mother and the widow''s power to vest the property in an adopted son by adoption was lost once the property vested in another. The decision in-- AIR 1933 155 (Privy Council) '', revolutionised the law of adoption and has once and for all firmly and clearly established that an adoption under Hindu Law is a religious institution in which no secular element enters.

Adoption in a sense was regarded as a religious act having for its purpose, the artificial creation of a son who could offer oblations for the future well-being of the father. It was also laid down that the object of the adoption was to continue the line. It was regarded as a need divorced from property. This view has been reinforced by another decision of the Privy Council in- AIR 1935 95 (Privy Council) '', wherein it has been clearly laid down that the power of a widow to adopt does not depend upon the question of vesting or divesting of the estate. The purpose is the continuance of the line. Their Lordships went to the extent of saying that the vesting of the property in a coparcener does not affect the right of the widow to adopt.

It may also be observed that the Hindu Law itself does not set any limit to the exercise of the power during the lifetime of the widow so long as there is no limitation in the terms of the authority given by the husband. The authoritative texts also do not appear to limit the exercise of the power by considerations of property or otherwise. The true reason why the possession of a son or a grandson''s widow was regarded as bringing the power of a widow to an end was that in those circumstances there was someone who was in a position effectively to continue the line of her husband which was the main object of adoption. But if the son or the son''s widow or that political being who is in a position to continue the hue dies, then if the original widow of the propositus were alive her right to adopt would revive. The existence of a son or a son''s widow does not extinguish the rights of the propositus wife to adopt but only keeps it in suspense & is revived in the event of the son or the son''s widow dying without adopting. The observations of their Lordship of the Privy Council in-- AIR 1933 155 (Privy Council) '', are very significant. They observe:

great caution should be observed in shutting the door upon any authorized adoption by the widow of a sonless man.

According to the Privy Council it is not enough merely to leave a son behind, to bring to an end the power of the mother to make the adoption. The limit, therefore, of the widow''s power to adopt would not be reached unless and until there is in existence a person capable of continuing the line either by birth of a son to himself or, if he leaves a widow, by an adoption by her. The full legal capacity enunciated by the Privy Council in--''AIR 1918 PC 74 (Z1)'' does not mean mere mental capacity, and it would not be enough in order to terminate the power of the widow, to establish that the last male person in the line attained the full age of discretion and, therefore, full legal capacity. The full legal capacity, according to the decision of the latest pronouncement of the Judicial Committee must be held to mean not mere age of discretion or even ceremonial competence but the capacity to continue the line viz., either by the birth of a son or by adoption. The test is to find out whether these conditions exist at the time of the son''s death. If they do not exist the power of the widow would not terminate.

In a case which came up before the Nagpur Hight Court AIR 1911 Nag 115 (S)'', A died leaving a widow B and a son C. The son C died leaving a widow D. The son''s widow1 D remarried. The question arose as to whether. B could adopt to A. The learned Judges of the Nagpur High Court held that the power of B, to adopt was suspended while C was alive and revived on his death. This judgment of the Nagpur, High Court was approved of by the Privy Council in-- AIR 1943 196 (Privy Council) at p. 199 (Q) Their Lordships quoted with approval the observations of the Nagpur High Court:

that a Hindu family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. AIR 1941 Nag 116 (S).

The same question came up before the Bombay High Court. In that case a Hindu died leaving him surviving, his widow A and two sons. One of the sons died leaving no issue, while immediately after that his wife also died and shortly. After wards the other son who was unmarried also died. Thereupon ''A'' the widow of the original holder adopted a boy. On a question as to whether the adoption was valid the learned Judges held that inasmuch as after the death of the un-married son the mother alone was the person who could continue the line the adoption was valid, vide-- Anant Govind Ginde Vs. Dnyaneshwar Balkrishna Ginde, ''. In the above case, unlike the case now before us there were '' surviving on the death of the propositus, besides his widow a married son, and an unmarried son. | The Judges did not hold that the existence of a married son who was capable of continuing the line was enough to extinguish the right of the widow to adopt.

After the case of Anant v. Shanker (Q) was decided by their Lordships of the Privy Council they had occasion to reaffirm the same principle in-- AIR 1948 165 (Privy Council) ''. This was a case decided on 20-4-1948.

In July 1913, the Bombay High Court had to consider a case of the widow''s right to adopt leaving a son, who died, leaving his widow, and a son. Shamrao Babaji Lokare Vs. Bhimrao Kondi Lokare, In this case ''B'' died leaving his widow ''A'' and a son ''K''. ''K'' died leaving his widow ''V and son ''C. ''V died : and soon after ''C'' died. The widow ''A'' purported to adapt to ''B''. The learned Judges of the Bombay High Court held that the power of the widow ''A'' was extinguished when there were her son''s widow and her grandson capable of continuing. ''B''s line and that the power could not revive: after the death of the son''s widow and grandson. The learned Judges declined to follow the interpretation put upon the decision of the Privy Council in-- AIR 1933 155 (Privy Council) '', by the Nagpur High Court that the power is merely suspended and not extinguished.

With respect, I would differ from the learned Judges of the Bombay High Court, in that the learned Judges set a limitation on the widow''s power to adopt. I am of the opinion that there is ample scope and sufficient authority for the view that the widow''s power to adopt is suspended when there is a person capable of continuing, the line but the moment such person died without adopting, the widow''s power is revived and she could exercise her power of adoption. The following observations of Sir George Lowndes who delivered the judgment of the Board in-- AIR 1933 155 (Privy Council) at p. 161 (M)'', lead considerable support; to tins view;

Their Lordships think that the true reason must be that when the duty of proving for the continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother has been assumed by the son and by him passed on to a grandson or to the son''s widow, the mother''s power is gone. But if the son dies himself sonless & unmarried the duty will still be upon the mother & the power in her which was necessarily suspended during the sons lifetime will revive.

The came view was taken by the Lucknow High Court in--''AIR 1945 Oudh 163 (T)''. This was a case decided by L.S. Misra Coar present Chief Justice) and Kaul JJ. I am, therefore, inclined to adopt the view taken by the Nitgpur High Court in ''AIR 1941 Nag 118 (S)'' and the Lucknow High Court in AIR 1943 Oudh 163 (T).

West and Buhler point out in their learned treatise on Hindu Law that the Hindu lawyers do not regard the male line to be extinguished or a Hindu to have died without a male issue until the death of the widow considers the continuation of the line by adoption impossible. (3rd Edition, 993).

So, it may be taken to be settled law that the power of the mother is never extinguished but is only kept in abeyance by the presence of counter circumstances, if at any particular time it can be envisaged that there is no possibility of the continuance of the line except by the widow adopting, then the power of the widow to adopt which was kept in abeyance revives, it may, therefore, be said that the correct rule is (a) that the power of the grand-widow is only suspended by the coming in of persons such as the son, son''s widow, son''s son and son''s son''s widow and revives with the removal of the obstacle by the death of all of them without adopting and Co) that there is no attainment of full legal capacity unless the son who succeeds is married and is in a position to continue the line. The existence of an unmarried son would not put an and to the power of the widow to adopt. It must be stated that this case falls clearly within the decision of the Privy Council in-- AIR 1933 155 (Privy Council) (M) In that case also the propositus died leaving him surviving his widow and an infant son. He gave the widow power to adopt if the son died as in this case. Likewise as in this case the son succeeded the father and died soon after unmarried. Then the widow adopted. The adoption was held to be valid.

I am, therefore, of the opinion that the. decisions of this Court in--''31 Deccan LR 11 XV)'' and ''32 Deccan LR 594 (W)'', to the contrary can no longer be held to be good law in view of the pronouncements of the Privy Council and other High Courts of India. This appeal must, therefore, fail and is dismissed with costs.