Sree Sree Sree Madana Mohana Ananga Bheema Deo Kesari Gajapati late a minor, by Sree Sree Sree Kundana Devi Putta Mahadevi vs Sree Sree Sree Purushothama Ananga Bheema Deo

Arnold White, C.J.—The material facts for the purposes of this appeal are set out in the judgment of my learned brother which I have had

the advantage of reading. I need not repeat them. The questions for determination are--

(1) Was the second adoption within the powers conferred by the authority to adopt (Exhibit B) ?

(2) If so, (a) was the adoption though not made to the last male holder effective for the purpose of divesting the estate an interest which, at the date

of the adoption had become vested in the defendants ?

(b) Was the fact that Adikonda''s son''s widow was alive when the adoption was made to Adikonda a bar to the exercise of the power?

As pointed out by their Lordships of the Privy Council in Suryanarayana v. Venkataramana ILR (1906) M. 382 : 16 M.L.J. 276 "" the main

factor for consideration in these cases is the intention of the husband. I think the only safe rule is to try and ascertain the intention of the donor of

the power from the terms in which the authority is given viewed in the light of such extrinsic evidence as would be admissible if the question for

consideration were the construction of a will. In the present case for instance in my opinion evidence that the husband who gave the authority was

at enmity with his brother and was anxious to exclude him from the succession would be admissible extrinsic evidence as evidence of an attendant

circumstance. Evidence that the first adopted son lived for 36 years, and that events happened between the giving of the authority and the second

adoption which if the testator could have foreseen them might have made it likely he would restrict the authority to one adoption, seems to me to

be extrinsic evidence which is not admissible.

As regards the argumentatum ab inconvenienti on which the learned Judge lays considerable stress I think considerations of convenience have

more relevance in connection with the second and third questions than with the question of construction. No doubt there are passages in some of

the judgments in the cases to which the learned District Judge refers which lend support to his view that for the purposes of ascertaining the

intention of the donor of the power subsequent events might be looked to. The learned Judge cites a passage from the judgment in Mussamat

Bhoobun Moyee Debia v. Ram Kishore Acharji Chowdhry (1885) 10 M.I.A. 279. ""It could hardly have been intended that after the lapse of

several successive heirs, a son should be adopted to the great grandfather of the last taker."" This was an observation with reference to the

particular case before their Lordships. I do not think Their Lordships intended to lay down any general canon of construction.

With all respect to the learned District Judge, I think the authority in the present case, read by the light of the Judgment of the Privy Council in

Suryanarayana v. Venkataramana ILR (1906) M. 382 is sufficiently wide to include a second adoption.

As regards the 2nd question it is common ground that the adoption was not made to the last male holder, and that when it was made, the

Zamindari had vested in Vaishnava Deo and his son successively. The contention on behalf of the appellant was that the rules suggested by Mr.

Mayne in paragraph 191 of his book are not applicable to joint Hindu families living under the Mitakshara law.

As regards this question whilst I do not desire expressly to dissent from the view which my learned brother takes, I am not satisfied that the view

which I took though the point did not then actually arise for decision in Sivagnanam Servaigar v. Ramasawmy Chettiar (1911) 22 M.L.J. 85 was

wrong. I do not think it necessary to discuss this question further since I agree with my learned brother''s conclusion with reference to the 3rd

question viz., that in the present case the power is not exercisable by reason :6f the fact that Brojokishore''s widow was alive when the adoption in

question was made by Adikonda''s widow.

I would dismiss this appeal with costs.

Seshagiri Aiyar, J.

[After setting out the facts as reported at p. 308 supra.] The first question for determination is whether under Exhibit B Kundana Devi can make

a second adoption. The genuinenesg of the document is not in question. It does not specify any particular individual as the boy to be adopted and it

imposes no other restrictions. It was rightly conceded by Mr. S. Srinivasa Aiyangar, the learned vakil for the respondent that the use of the words

a son, was not intended to be restrictive of the number: Similar words were held to authorise successive adoptions. (Vide 16 CWN 675 (Privy

Council) ) It was argued however, that Adikonda could never have contemplated the death of the first adopted son and the necessity for a second

adoption, and therefore the document should not be construed as conferring such a power. The canon of construction regarding powers to adopt

is not different from that of ordinary testamentary dispositions; the intention of the testator has to be gathered from the language employed by -him

and from the circumstances existing at the time of the grant of the power. If Adikonda was capable of looking far ahead, I am prepared to hold

that he cbntemplated that his brother Raghunada Deo and his descendants should not succeed to the Zamindari under any circumstance. In the

earlier litigation it is pointed out by Sir James Colville delivering the judgment of the Judicial Committee (Sri Raghunada v. Sri Brojokishore (1876)

L.R. 3 IndAp177) that the brothers ""were long on bad terms with each other...the strife was embittered by subsequent quarrels between the

brothers and by the desperate attempt of Raghunada as late as 1852 to oust his brother by proving him to be illegitimate."" The judgment goes on to

say ""that Adikonda would desire to retain by all means in his power the Zamindari in his own line."" If therefore, it is permissible to speculate upon

what Adikonda would have desired in case his adopted son died, the probabilities are that he intended his widow to make a second adoption if the

law permitted her to do so. See Bhagawath Pershad v. Murari Lal 15 C.W.N. 524 It is clear that Adikonda was anxious that he should have a son

worthy of his throne""; and the fact that the authority was given at a time when his wife was pregnant accentuates the position that his intention was

that his line should be continued by an adopted son in case his wife gave birth, to a female child. The case is covered by the decision of the Judicial

Committee in Suryanarayana v. Venkataramana ILR (1902) M. 681. The learned vakil for the respondent contended that the authority given to the

widow in that case was more general and comprehensive in its terms than is contained in Exhibit B. But the principle enunciated in that decision

applies with equal force to this case: Their Lordships of the Judicial Committee have indicated that the authority given by a Hindu husband to his

wife should be regarded as being general in its nature, unless conditions, have been imposed or limitations placed upon it by him. At page 387,

Their Lordships say that they are unable to attach much weight to the opinion of Sir William Macnaughten to the effect that a second adoption is

invalid. This disapproval is based on the fact that Sir William Macnaughten ignored the opinion of the pandit and did not quote any precedents for

his conclusion. The Vyavastha of the pandit which is cited with approval expressly says that as "" the deed put in does not restrict the adoption to

one son only "" another may be adopted : the view of the learned Judge who decided Suryanarayana v. Venkataramana ILR (1902) M. 681, which

was confirmed in Suryanarayana v. Venkataramana ILR (1906) M. 382 is in entire accordance with the dictum of the pandit. Bhagawat Pershad

v. Murari Lall 15 C.W.N. 524 and Rani Dharam Kunwar v. Balwant Singh (1912) L.R. 89 I. A. 142 also proceed on the same ground. I am

therefore of opinion that Exhibit B did confer a power to make a second adoption. The learned District Judge''s conclusion to the contrary is

largely based upon two considerations (1) that no question of spiritual benefit could have been in the contemplation of Adikonda, as it was

customary in Uriya Zamindari families to appoint a Brahmin priest to conduct the funeral ceremonies of the deceased and to perform his annual

Sradhas; and (2) that as the adopted son lived to the age of 36 years the spiritual cravings of the deceased must; have been fully satisfied. It is true

that a priest known by the appellation of the Puo Brahmin is generally appointed by these Zamindars to perform their obsequies and Sradhas. He

also takes the gotram of the deceased. It is impossible to argue from this that this hired priest exhausts all the spiritual benefits which a son is

expected to confer uport a Hindu father. The performance of these two ceremonies is hot the only object of having a son : I have no desire to

discuss at any length the religious precepts relating to this question.

Extracts from the smritis and from the Mahabarata bearing on this subject are collected in Sarcar''s Vyavastha Darpana Chapter IX. These

however do not exhaust the materials--but they are fairly representative of the shastraic injunctions on the subject. A Hindu father desires a son in

order that he may discharge his obligations to his ancestors, to his creditors and to the Gods. A Puo Brahmin can discharge only a small portion of

the first function. The debt to the Gods which the smritis and the Vedas speak of as being incumbent upon the son to discharge consists not only in

the worship of the family Gods, but also in the performance of good and pious acts...building and endowing temples, going on pilgrimage, feeding

the poor, relieving the needy and the distressed, the digging of, tanks, etc., the appointed priest is not expected to perform any of these duties, nor

can he1 pay the debts of the deceased. The idea that the Po Brahmin can be a substitute for a son is altogether foreign to Hindu notions. The

second objection must now be taken to have been set at rest by Their Lordships of the Judicial Committee endorsing the considered opinion of

Romesh Chunder Mitter in Ram Soonder Singh v. Surbanee Dossee (1874) 22 W.R.121. It is enough to say that that view is fully supported by

the statement of sage Yagnavalkya, an authority paramount in this Presidency who says "" the attainment of worlds, Immortality and Heaven depend

on a son, grandson and great grandson."" That a son who lived for 36 years must be taken to have satisfied this craving for three generations of

descendants can find no support in Hindu Theology. I have therefore come to the conclusion that the authority conferred by Exhibit B should not

be construed as restrictive of the powers of Kundana Devi to make a second adoption.

The next question is whether the fact that the plaintiff was adapted to Adikonda who was not the last male holder and after the zamindari had

vested in Vaishnava Deo and his son successively invalidates the adoption. The only limitation placed by the text writers on the power to adopt is

that "" the man should be destitute of a son :"" the word son has been construed; in the Dattaka Mimamsa (Section 1, paragraph 13) following a text

of Manu, to include a grandson and a great grandson of course there is the obvious limitation of the death of the donee of the power. She cannot

delegate. These are the only qualifications which the ancient lawgivers have recognised: but the courts have from considerations of expediency

imposed further restrictions on the exercise of the power to adopt. They are attributable to a desire that property should not be divested frequently

and capriciously; and are the outgrowth of ideas tending, to the preservation of peace and quieting of title. Such being according to my opinion, the

principle of Judicial pronouncements relating to the divesting of property, I consider that it will not advance justice, to crystallise them into inflexible

and rigid rules and then to endeavour to engraft exceptions on them : I shall presently examine the decisions bearing on this question. Before doing

so it is necessary to state that the. term ""vesting of property "" as applied to a Mitakshara joint family is liable to be misunderstood : all that is

connoted by the phrase is that in the absence of preferential heirs, the presumptive heir is entitled to possession of the estate without prejudice to

the rights of others which may accrue at some future time. He takes the surviving intere t conditionally. See Krishna v. Sami ILR (1885) M. 64 and

per Russell J. in Bachoo v. Manhorebai ILR (1904) B. 51. He gets no absolute property in it. In Hindu law property cannot be in abeyance but

must vest in some one; but the intermediate holder is not to be regarded as the absolute owner of the property If this view of the position of the

person who takes possession pending-further development is kept in mind there will not be much difficulty in reconciling ? the various rulings upon

the point.

Mr. K. Srinivasa Aiyangar contends that the rules suggested by Mr. Mayne in paragraph 191 are not applicable to families living in co-

parcenary under the Mitakshara System of law I think the contention is well-founded: The paragraph in question has a marginal note ""Bengal

Decisions"" and the rules themselves are obviously inapplicable to joint property. The reference to Madras decisions is explainable on the ground

that they relate to separate property obtained by inheritance. The authorities : bearing on the question may be considered under two heads Those

relating to separate property and to inheritance proper: and those dealing with co-parcenary property and to survivorship. Mussumat Bhuban

Moyee Debia v. Rama Kishore Acharj Chowdri (1865) 10 M.I.A. 279 and Sri Raghunada v. Sri Brojo Kishore (1876) L.R. 31. A. 174

represent the two classes. It will be convenient before proceeding further to deal with the argument of Mr. S. Srinivasa Aiyangar that the.

distinction between survivorship and inheritance is arbitrary and that the decided cases lead to the conclusion that joint Hindu family property is

really taken by inheritance. He has drawn our attention to stray observations in some of the judgments of the various High Courts; Krishna v. Sami

ILR (1885) M. 64 Surendra Nundan alias Gyanendra Nandan Das v. Sailaja Kant Das Muhapatra ILR (1891) C 385 Bachoo v. Mankorebai

ILR (1904) B. 51. It has often been pointed out that sentences should not be detached from the main context an3 quoted as precedents. I do not

think the quotations themselves bear the interpretation placed upon them, by the learned vakil. He made a further. point that whether survivorship is

the rule. of law in joint Hindu families or not, it is not so in the case of impartible Zamindaries. The course of decisions in this presidency has

established that the heir to a Zarnindari is to be found by regarding the estate as co-parcenary family property; See Rajah of Kalahasti v. Achigadu

ILR (1905) M. 154 Zamindar of Karvetnagar v. Trustee of Triumalai, Tirupati, etc, Devastanams ILR (1909) M. 429 Maharaja of Bobbili v.

Zamindar of Chundi ILR (1910) M. 108 and Sir Abhinava Purna Priya Vedaji Bhaskar Thirumal Rao Saheb. Vs. Arni Rangadani Rao Saheb, . It

is true as pointed out by Mr. S. Srinivasa Aiyangar that in Section 2, Sub-clauses 2 and 3 of the Madras Impartible Estates Act (II of 1904), the

successor is spoken of as the heir: it does not follow there from that he takes by inheritance. Section 4 of the Act introduces practically the same

restrictions upon the power of the proprietor of the estate to make alienations as fetter the acts of the managing member of a joint Hindu family.

The law has thus practically been brought into conformity with the estate of affairs which existed before the decision of the Judicial Committee of

the Privy Council in the Mahuli alienation case Sartaj Kuari v. Deo Raj Kuari (1888) ILR 10 A. 272. (P.C.). It is true that the zemindari in the

hands of the successor has been decided to be assets for the purpose of enabling the decree-holder to proceed against it for the realisation of the

amount due to him; to this extent, there is a divergence from the normal rule applicable to a joint Hindu family. On the other hand, every incident

which attaches to survivorship exists either by virtue of legislation or by judicial pronouncements in an impartible estate. I, therefore"" see no reason

to hold that the Zemindari of Chinnakimidiis not governed by the rule of survivorship relating to joint family property.

Turning now to the two classes of cases mentioned by me, I shall first deal with those relating to co-parcenary property. The decision in Sri

Raghunatha v. Sri Brojo Kishore (1876) L.R. 3 IndAp 171 does not directly bear upon the question; but it is authority for the position that even

when the estate had vested in a male owner who was capable of transmitting it to his heirs in full proprietary right the adoptee was entitled to divest

such person. The next case is the Guntur case reported in Vellanki Venkata Krishna Rao v. Venkata Rama Lakshtni (1876) 4 I.A. 1. In that case,

the property vested in the first adopted son who died an infant and unmarried. The mother succeeded and made a second adoption. This was

upheld by the Privy Council. The theory that the adoption should be to the last male holder fails in this case. The case in Suryanarayana v.

Venkataramana ILR (1906) M. 382. illustrates the same position; the first adopted sou lived for over 10 years : it was held that the mother was

competent to make a second adoption. Here again, the theory that the adoption should be to the last male holders falls to the ground. In Bachoo

Harkissen Das v. Mankore Bai (1907) L.R. 34 IndAp 107 : ILR 31 B. 373 there were two brothers, one of them died while his wife was

pregnant. The surviving brother gave power to his wife to adopt and died. The adoption was made after a son was born to the pre-deceased

brother. Overruling the contention that the case in Mussumat Bhoobun Moyee Debia v. Bam Kishore Acharj Chowdhry (1864) 10 M. I.A. 279

applied"", it was held that the adoption conferred title to the estate of his adoptive father.

The case in Rani Dharum Kunwar v. Balwant Singh L.R. 39 IndAp 112 is the last of the Privy Council rulings on the question. In that case

during the pregnancy of the wife, power to make successive adoptions was given: a male child was born but died soon. Two adoptions followed in

quick succession; both the adoptees died, a third adoption was made, but was questioned by the adopting widow herself as being invalid; the

decision itself was based upon the principle of estoppel as against the widow; but their Lordships take care to say that the adoption was otherwise

valid and binding. In page 148, there is this observation : "" Of course, the estoppel pleaded against the Rani must be taken as purely personal. It

does not bind any one who claims by an independent title, but, in view, of the decision now given, that the respondent was, in fact, duly adopted,

further ligitation on the point may be taken as happily out of the question.

These decisions of the Privy Council are consistent only with the principle that the theory that the adoption should be made to the last male

holder does not apply to joint Hindu families living in co-parcenary; I shall very briefly deal with the decisions of the High Courts. In Venkatappa

Bapu v. Jivaji Krishna ILR (1900) B. 306 it was held that where the mother succeeded after the death of the son''s widow, the adoption was valid.

In Surendra Nandan alias Gyanendra Nandan Das v. Sailaju Kant Das Mahapatra (1891) ILR 18 C. 385 an adoption by a predeceased

brother''s widow was held good. The same principle was applied where property had vested in a member of a joint family to the exclusion of a

disqualified member of that family. It was held that the son of this disqualified person succeeded to his share in the joint family property. 9 Mad.

These decisions show that the last male holder''s theory is inapplicable to joint Hindu families.

On the other hand, it is now settled law that where property had passed by inheritance and had vested in a full owner, subsequent adoptions

would not divest his property, Booban Moyee''s case decides this explicitly and has been followed in Pudma Coomari Debi v. Court of Wards

(1881) 8. I.A. 229 Bhubaneswari Debi v. Nilkomul Lahiri . (1887) L.R. 14 I.A. 67 (Privy Council) and in Rathna Mudaliar and Others Vs.

Ragunadha Bhattar, . The head note in the last case is incorrect. The case was one of inheritance and not of survivorship. These are all cases really

of collateral succession, Where property is taken by inheritance there is no equity by which it can be divested in favour of his person who had no

claim on the inheritance. To this class of cases, the rules enunciated by Mr. Mayne will apply; and I feel no doubt that it was never the intention of

that learned writer to formulate a set of rules applicable to joint and separate properties alike. Mr. S. Srinivasa Aiyangar pressed upon our

attention the case decided by the learned Chief Justice and Mr. Justice Phillips Sivagnana Servaigarar v. Ramasawmy Chettiar (1931) 22 M.L.J.

85 In that case the question was whether an adopted son can question the alienation made by a person in whom the property had vested prior to

the adoption. It was held that the intermediate holdar was not in the position of a trespasser: The learned Chief Justice points out at page 93 that

the language of the judgment in Mussumat Bhoobhun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M. I.A. 279 is not appropriate

to a case of survivorship: Without giving any decision on the point, his Lordship indicates that the weight of authority is in favour of applying that

decision to joint Hindu families; no final conclusion was arrived at, because it was not necessary for the decision of the case : and I do not think

that case helps the respondent. The learned Vakil for the respondent invited our attention to the ruling in 14 Bombay 463, Krishnarav v. Shankarav

ILR (1892) B. 164 Manikyo Mala Bose v. Nand Kumar Bose ILR (1906) C 1906 and Adivi Surya Prakasa Rao v. Nidamarti Gangaraju ILR

(1906) C 1906 it is not necessary to discuss the question considered in these rulings especially in the Bombay cases, as to whether a co-parcenary

comes to an end when there are no male members in the family and that the property then passes to the widow of the surviving member of the joint

Hindu family by inheritance. The learned Judges seem to regard the joint family as a quasi corporation which loses this character by the death of

the last male member. Whether this position is correct or not, these cases cannot afford any assistance in deciding the question before us.

I have examined the authorities at some length, and my conclusion is that the estate taken by survivorship by a member of the joint Hindu family

is a conditional estate subject to defeasance on the coming into existence by adoption or otherwise of a new member into the co-parcenary, that

the rule of law that in order that an estate once vested may be divested the adoption should be made to the last male holder is not applicable to co-

parcenary property, and that an impartible Zamindari is joint family property subject to an exception.

There remains yet another question and that is whether the existence of Ratnamala, the widow of Brojokishore is a bar to the adoption made

by Kundana Devi. Mr. K. Srinivasa Aiyangar argues that the only limit to the power to adopt is that mentioned in the text of Dattaka Mimamsa

already quoted; it is true that the legislature has fixed no period of limitation and as pointed out in Mutasaddi Lal v. Kundan Lal ILR (1902) B.

526, there is no limit of time within which an adoption should be made. First adoptions made long after the granting of the authority have been

upheld on this ground. See also Mayne, paragraph 154 and the cases cited at the footnote; our attention has been drawn by the learned Vakil for

the respondent to the case in Rama Krishna v. Shamrao (sic) where Justice Ghandravarhar in delivering the opinion of the full Bench says where a

Hindu dies leaving a widow and a son and that son dies0 leaving a natural born or adopted son or leaving no son but his own widow to continue

the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived."" It is not easy to trace the

origin of this rule; it is stated in some of the decided cases that the law does not favour an unlimited, user of the power to adopt; although the

power to adopt must receive a liberal interpretation, it is not, in my opinion, inconsistent with this principle that some limitation should be placed on

the donee of the power. Law does not favour constant interruptions with possession; and it is desirable that some rule of equity should be enforced

against permitting successive adoptions. In the present case, Brojo Kishore was 36 years of age when he died. He had no male issue at the time of

his death. He made no adoption himself. As his widow Ratnamala is not a party to this litigation, we are not in a position to say whether he has

authorised her to make an adoption; nor can we assert that this lady is not in a position to make an adoption. If she adopts, the plaintiff, as

admitted by the learned Vakil for the appellant can have no claim to the estate; where the exercise of a power to make a second adoption will not

result in creating a new line of succession but will only transfer the estate from one intermediate owner to another with the prospect of the latter

being eventually divested, the courts might well lay down that the limit of the power to adopt has been reached; Mr. Justice Chandravarkar has

taken this view and I find he is supported by authorities; West and Buhler 984 and 985, Payapa v. Apphnna ILR (1898) B. 327 Thayammal v.

Venkatarama (1887) ILR 10 M. 205 (P.C.) Amulya Charan Seal v. Kali Das Sen ILR (1905) C. 861. It is true that in these latter cases, the

property Vested in the son''s widow. In the present case the property does not vest either in the mother-in-law or in the daughter-in-law. I do not

think this fact can affect the principle that where a person is in existence who is competent to adopt a boy in whom the full proprietary right will

vest, that must be taken to be the time of the exercise of the power by the do nee to make successive adoptions. I have therefore come to the

conclusion, though not without hesitation, that the power of Kundaria Devi to make a second adoption is not exercisable under the circumstances

of this case. It is upon this ground alone that I hold that the appeal fails; J agree in dismissing it with costs.