Appeal No 105 of 1953
Appeal by Special Leave granted by this Court s Order dated the 24th September 1951 from the Judgment and Decree dated the 2nd day of September 1949 of the High Court of Judicature at Bombay in Appeal No 274 of 1948 from Original Decree arising out of the Decree dated the 30th day of July 1946 of the Court of Civil Judge Senior Division at Hubli in Special Suit No 56 of 1944
K R Bengeri and Sardar Bahadur for the appellant
section B Jathar and I N Shroff for respondents Nos 3 4 and 5
December 10
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C J
This appeal raises a question of importance whether a widow can exercise a power of adoption conferred on her or possessed by her at any time during her life irrespective of any devolution of property or changes in the family or other circumstances and even after a grandson has come on the scene but has subsequently died without leaving a widow or a son
The situation in which this question arises can properly be appreciated by reference to the following genealogy 1137 Dyamappa I I I Kalasappa I I Krishtarao RadhabaiGangabai deft2 Deft1 Senior widow Junior window  Gurunath  Appellsnt adopted  by Gsngsbai on   18 11 53    Dattatraya son died 1913   Sundarabai died after   her husband in 1913 Kamalabai Yamunabai Resp1 Resp2        Kalasappa Jagannath predeceased died 1914 Dattatraya Girimaji  Hanamanta       Malhar Ganesh Resp3 Resp5 Venkatesh Hanamant Resp4 Resp6 1138 Gurunath the plaintiff claims that he was adopted in 1943 by Gangabai widow of Krishtarao
Krishtarao died in 1890 leaving him surviving two widows Radhabai and Gangabai and a son Dattatraya
Dattatraya died in 1913 leaving him surviving a widow Sundarabai and a son Jagannath
Sundarabai died shortly after Dattatraya while Jagannath died in the year 1914
After an interval of about 30 years since his death it is alleged that Gangabai who survived both her son and grandson adopted the plaintiff and thus raised the problem which we are called upon to solve
On the 15th of March 1944 the appellant instituted the suit out of which this appeal arises in forma pauperis on the allegation that he was the adopted son of Krishtarao and adopted to him by Gangabai his junior widow and as such was entitled to the possession of his adoptive father s properties comprised in the suit
He also claimed a declaration regarding the amount of compensation money payable to the plaintiff s family for the land acquired by Hubli Municipality
The defendants who are the sons and grandsons of the first cousin of Krishtarao disputed the plaintiff s adoption on the ground that Gangabai s power to adopt was extinguished when Dattatraya died in 1913 leaving behind him a widow Sundarabai and a son Jagannath who could continue the family line
Gangabai in her written statement supported the plaintiff s claim and asserted that the senior widow Radhabai had given consent to her adopting the plain tiff
The trial judge upheld the defendants  contention and dismissed the plaintiff s suit
The factum of the plaintiff s adoption was however upheld and it was further held that Radhabai did not give her consent to the adoption
On appeal this decision was affirmed by the High Court and it was held that Gangabai s power to adopt came to an end at the time when her son died leaving a son and a widow to continue the family line
No finding was given on the question whether Radhabai had given her consent to the adop tion
That perhaps would have been the simplest way to end the dispute
Against the decision of the High 1139 Court this appeal in forma pauperis is now before us by special leave
The only question canvassed in the appeal is in respect to the validity of the plaintiff s adoption
It was contended that Hindu Shastric Law itself sets no limit to the exercise of the widow s power of adoption once she has acquired that power or is possessed of it and that being so the power can be exercised by her during her life time when necessity arises for the exercise of it for the purpose of continuing the line of her husband
On the other hand it was argued that though Hindu Shastric Law itself sets no limit to the exercise of the power yet it has long been judicially recognised that the power is not an unlimited and absolute one and that it comes to an end when another heir has come on the scene and he has passed on to another the duty of continuing the line
The question at what point of time the widow s duty of continuing the line of the husband comes to an end has been the subject matter of a number of decisions of Indian High Courts and of the Privy Council and the point for our consideration is whether the limits laid down in these decisions have been arbitrarily fixed and are not based on sound principles and should be reviewed by us
A brief reference to the different decisions of the Privy Council is necessary for a proper appreciation of the state of law on this subject at the present moment
The two leading cases on this point are the decisions of the Privy Council arising out of the adoption made by Shrimati Chundrabullee and decided in 1876 and 1878
The judgment in the first of these cases ie in Bhoobun Moyee vs Ram Kishore1 was delivered by Lord Kingsdown
What happened there was that one Gour Kishore died leaving a son Bhowanee and a widow Chundrabullee to whom he gave authority to adopt in the event of his son s death
Bhowanee married and died at the age of 24 without issue but leaving him surviving his widow Bhoobun 1 1965 10 MIA 279 146 1140 Moyee
Chundrabullee then adopted Ram Kishore
Ram Kishore brought a suit against Bhoobun Moyee for the recovery of the estate
The Privy Council held that the claim of Ram Kishore failed on the ground that even if he had been in existence at the death of Bhowanee he could not displace the widow of the latter
It was further held that at the time when Chundrabullee professed to exercise her power of adoption the power was incapable of execution on the ground that Bhowanee had married and left a widow as his heir
The following quotation from the judgment of Lord Kingsdown may be cited as indicating the reasons for the decisions In this case Bhowanee Kishore had lived to an age which enabled him to perform and it is to be presumed that he had performed all the religious services which a son could perform for a father
He had succeeded to the ancestral property as heir he bad full power of disposition over it he might have alienated it he might have adopted a son to succeed to it if he had no male issue of his body
He could have defeated every intention which his father entertained with respect to the property
On the death of Bhowanee Kishore his wife succeeded as heir to him and would have equally succeeded in that character in exclusion of his brothers if he had any
She took a vested estate as his widow in the whole of his property
It would be singular if a brother of Bhowanee Kishore made such by adoption could take from his widow the whole of his property when a natural born brother could have taken no part
If Ram Kishore is to take any of the ancestral property he must take all he takes by substitution for the natural born son and not jointly with him 
The question is whether the estate of his son being unlimited and that son having married and left a widow his heir and that heir having acquired a vested estate in her husband s property as widow a new heir can be substituted by adoption who is to defeat that estate and take as an adopted son what a legitimate son of Gour Kishore would not have taken
1141 This seems contrary to all reason and to all the principles of Hindoo law as far as we can collect them 
If Bhowanee Kishore had died unmarried his mother Chundrabullee Debia would have been his heir and the question of adoption would have stood on quite different grounds
By exercising the power of adoption she would have divested no estate but her own and this would have brought the case within the ordinary rule but no case has been produced no decision has been cited from the Text books and no principle has been stated to show that by the mere gift of a power of adoption to a widow the estate of the heir of a deceased son vested in possession can be defeated
and divested
In the result the suit of Ram Kishore was dismissed
After the deaths of Bhoobun Moyee and Chundrabullee Ram Kishore got possession of the property under a deed of relinquishment executed in 1869 in his favour by Chundrabullee who herself had entered into possession of the property as mother and next heir of Bhowanee Kishore after the death of Bboobun Moyee in 1867
If Ram Kishore s adoption was good he was undoubtedly the next heir to the property
A distant collateral however claimed the estate on the ground that his adoption was invalid
The Privy Council then held that upon the vesting of the estate in the widow of Bhowanee the power of adoption of Chudrabullee was at an end and incapable of execution and that Ram Kishore had therefore no title
This was the decision in Padma Coomari vs Court of Wards1 wherein a second effort to maintain the validity of his adoption by Chundrabullee was made but without success
The High Court in its judgment in Padma Coomari s case1 remarked that the decision in Bhoobun Moyee vs Ram Kishore2 did not decide that Chundrabullee could not adopt on the extinction of the issue either of natural born son or of the first to be adopted son and that if Chundrabullee had on the death of Bhoobun Moyee made the adoption and so divested her own estate there would be 1 1881 LR 8 IA 229
2 1865 10 MIA 279 1142 nothing in the judgment of the Privy Council and nothing in the law to prevent her doing that which her husband authorised her to do and which would certainly be for his spiritual benefit and for that of his ancestors and even of Bhowanee Kishore
The learned Judges of the High Court proceeded then to observe as follows With all respect therefore we imagine that Lord Kingsdown must have said by inadvertence in reference to the idea of adopting a son to the great grandfather of the last taker that at that time all the spiritual purposes of a son according to the largest construction of them would have been satisfied  and again Bhowanee Kishore had lived to an age which enabled him to perform and it is to be presumed that he had performed all the religious services which a son could perform for a father
There is really no time at which the performance of these services is finally completed or at which the necessity for them comes to an end
To this Sir Richard Couch who delivered the judgment of the Privy Council gave a very emphatic answer in these terms The substitution of a new heir for the widow was no doubt the question to be decided and such
substitution might have been disallowed the adoption being held valid for all other purposes which is the view that the lower Courts have taken of the judgment but their Lordships do not think that this was intended
They consider the decision to be that upon the vesting of the estate in the widow of Bhowanee the power of adoption was at an end and incapable of execution
And if the question had come before them without any previous decision upon it they would have been of that opinion
The adoption intended by the deed of permission was for the succession to the zemindary and other property as well as the performance of religious services and the vesting of the estate in the widow if not in Bhowanee himself as the son and heir of his father was a proper limit to the exercise of the power
The question of limitations upon the power of the 1143 widow to adopt thus stated in the Chundrabulle series of decisions was again affirmed by the Judicial Committee in Thayammal and Kuttiswami Aiyan vs Venkatarama Aiyan1 decided in 1887 and in Tarachurn vs Suresh Chunder2 decided in 1889
In the year 1902 this question came up for consideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra vs Shamrao3
There a grandmother succeeded to her grandson who died unmarried andit was held that her power to make an adoption hadcome to an end and that the adoption was invalid
Chandavarkar J who delivered the judgment of the Full Bench enunciated the principle in these words Where a Hindu dies leaving a widow and a son and that son dies 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
This principle was approved and applied by the Judicial Committee in Madana Mohana vs Purushothama Deo4 in these words Their Lordships are in agreement with the principle laid down in the judgment of the Full Court of Bombay as delivered by the learned judge and they are of opinion that on the facts of the present case the principle must be taken as applying so as to have brought the authority to adopt conferred on Adikonda s widow to an end when Brojo the son she originally adopted died after attaining full legal capacity to continue the line either by the birth of a natural born son or by the adoption to him of a son by his own widow
The next and the most important decision of the Judicial Committee in regard to this matter was given in the year 1933 in Amarendra Mansingh vs Sanatan5 where there was a departure from or at least a reorientation of the old doctrine and stress was laid on the spiritual rather than on the temporal aspect 1 1887 LR 14 IA 67
3 Bom
2 1889 LR 16 IA 166
4 1918 LR 45 IA 150
5 1933 L R 60 IA 242
1144 of adoption linking it up with the vesting and divesting of the estate
There a Hindu governed by the Benaras school was survived by an infant son and a widow to whom he had given authority to adopt in the event of the son dying
The son succeeded to his father s impartible zamindari but died unmarried at the age of 20 years and 6 months
By a custom of the family which excluded females from inheritance the estate did not go to his mother but became vested in a distant collateral
A week after the son s death she made an adoption
It was held that the adoption was valid and it divested the estate vested by inheritance in the collateral
All the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Board
At page 248 of the report it is said as follows In their Lordships  opinion it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites
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 spent the debt be 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 they think hardly be doubted that in this doctrine the devolution of property though recognised as the inherent right of the son is altogether a secondary consideration  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 consequent devolution of property a mere accessory to it
Having regard to this well established doctrine as to the religious efficacy of sonship their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man The Hindu law itself sets no limit 1145 to the exercise of the power during the lifetime of the widow 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
But 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 has long been recognised both by the Courts in India and by this Board and it is upon the difficult question of where the line should be drawn and upon what principle that the argument in the present case has mainly turned
In another part of the judgment their Lordships observed as follows It being clear upon the decisions above referred to that the interposition of a grandson or the son s widow brings the mother s power of adoption to an end but that the mere birth of a son does not do so and that this is not based upon a question of vesting or divesting of property their Lordships think that the true reason must be that where the duty of providing 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 die himself sonless and unmarried the duty will still be upon the mother and the power in her which was necessarily suspended during the son s lifetime will revive
The learned counsel for the appellant placed reliance upon the last sentence in the passage in the Privy Council judgment quoted above and contended that if the power of the widow which remained suspended during the lifetime of the son could revive on the son dying sonless and unmarried logically the power must also revive when the son and his widow and the grandson and his widow all died out
Reliance was also placed on the passage already cited in which 1146 their Lordships laid emphasis on the proposition that the substitution of a son of the deceased for spiritual reasons is the essence of the thing and the consequent devolution of property a mere accessory to it and it was contended that the grounds on which an outside limit was laid on the exercise of the widow s power in the Chundrabullee series of decisions no longer survived in view of the ratio in Amarendra s decision and that it having been held that the power of adoption did not depend on and was not linked with the devolution of property or with the question of vesting or divesting of property and could be exercised whenever necessity for continuing the line arose it should be held that when the son and his widow were dead and the grandson to whom he handed the torch for continuing the line also died the power of Gangabai to make the adoption revived and thus the adoption was valid
This argument in our opinion is not well founded as it is based on an incorrect apprehension of the true basis of the rule enunciated in this judgment the rule being that where the duty of providing 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 the grandson or to the son s widow the mother s power is gone
In the words of Chandavarkar J affirmed by the Judicial Committee in Madana Mohana vs Purushothama Deo1 the power having once been extinguished it cannot afterwards be revived
In other words the true rule is this When a son dies before attaining full legal competence and does not leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands over that torch to another the mother can no longer take it
The contention of the learned counsel therefore that even if the second generation dies without taking steps to continue the line the grandmother still 1 1918 L R 45 IA 156
1147 retains her authority and is still under a duty to continue the line cannot be sustained
The three propositions that the Privy Council laid down in Amarendra s case therefore cannot now be questioned
These propositions may be summed up in these terms 1 That the interposition of a grandson or the son s widow competent to continue the line by adoption brings the mother s power of adoption to an end 2 that the power to adopt does not depend upon any question of vesting or divesting of property and 3 that a mother s authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence
The rule enunciated in Amarendra s case was subsequently applied in Vijaysingji vs Shivsangji1 and was again restated and reaffirmed as a sound rule enunciating the limitations on the widow s power to adopt in Anant Bhikappa Patil vs Shankar Ramchandra Patil2
One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango vs Narayan Devji Kango3 but that apart no doubt was cast in this decision on the above rule
The result of these series of decisions is that now for about three quarters of a century the rule that the power of a widow to adopt comes to an end by the interposition of a grandson or the son s widow competent to adopt has become a part of Hindu Law
though the reasons for limiting the power may not be traceable to any Shastric text and may have been differently stated in the several judgments
It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice equity and good conscience and it is not possible to bold that the reasons stated in support of the rule are not consistent with these principles
During the arguments no substantial grounds have 1 1935 LR 62 IA 161
2 1943 LR 70 IA 232
3  147 1148 been suggested for holding that the rule is either in equitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption
In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widow s power to adopt excepting those that limit the power of her husband to adopt ie that she cannot adopt in the presence of a son grandson or great grandson
Hindu Law generally and in particular in matters of inheritance alienation and adoption gives to the widow powers of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law
For the reasons given above we are unable to depart from the rule that a widow s power to make an adoption comes to an end by the interposition of a grandson or the son s widow competent to continue the line by adoption
The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendra s case had no application to the situation that has arisen in the present case and that on the death of the grandson the widow s power to adopt which was in abeyance during his life revived
Reference in this connection was made to the decision of the Nagpur High Court in Bapuji vs Gangaram1
There a Hindu died leaving a widow and his son and the son died leaving a widow only who re married
It was held that the power of the mother revived on the re marriage of the son s widow
Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendra s case as appears from the following quotation from that judgment If the observation quoted from Amarendra Mansingh vs Sanatan Singh2 be understood as limited to the case where the widow D or the grandson E stands between is interposed the grand widow C and her power everything is clear except for the 1 1941 ILR Nagpur 178
2 Pat
642 658
1149 words and can never be revived quoted from Ramkrishna vs Shamrao1
Strictly the above is the true meaning of their Lordships  words
That amounts to nothing more than this that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C
That leaves at large what happens when the interposition is ended
Logic says that as the death of the son removes his inter position whereupon C s power revives so the death of D removes her interposition and so C s power revives
In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendra s case
The reason for the rule in Amarendra s case was where the duty of providing 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
If that is the true reason obviously the duty having come to an end cannot be revived on logical grounds
We are therefore clearly of opinion that the ratio of the decision in Bapuji vs Gangaram2 was erroneous
The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer vs Harihar Bakhsh Singh3
The learned Judges in that case followed the decision of the Nagpur High Court above quoted and further added though under some misapprehension that this decision had been approved by their Lordships of the Privy Council
As a matter of fact there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to
The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case
1 Bom
2 3 Luck
1 1150 For the reasons given above this appeal fails and is dismissed but in the circumstances of the case we will make no order as to costs
Appeal dismissed


Summary:
It is well settled according to Hindu Law that a widow s power to adopt comes to an end by the interposition of a grandson or the son s widow competent to continue the line by adoption
The mother s authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence
The power to adopt does not depend upon any question of vesting or divesting of property
The decision of the Judicial Committee of the Privy Council in Anant Bhikappa Patil vs Shankar Ramchandra Patil LR 70 IA 232 is not sound in so far as it relates to the properties inherited from collaterals prior to adoption
In respect of such properties the adopted son can lay no claim on the ground of relation back
Shrinivas Krishnarao Kango vs Narayan Devji Kango 1955 1 SCR 1 followed
Amarendra Mansing vs Sanatan 1933 L R 60 I A 242 explained
Anant Bhikappa Patil vs Shankar Ramchandra Patil 1943 LR 70 IA 232 not relied on in part
Bhoobun Moyee vs Ram Kishore 1865 10 MIA 279 Pudma Coomari vs Court of Wards 1881 LR 8 IA 229 Thayammal and Kuttisami Aiyan vs Venkatarama Aiyan 1887 LR 14 IA 67 Tarachurn vs Suresh Chunder 1889 LR 16 IA 166 Ramkrishna 1136 Ramchandra vs Shamrao 1902 ILR  Madana Mohana vs Purushothama Deo 1918 LR 45 IA 156 Vijaysingji vs Shivsangji 1935 LR 62 IA 161 Bapuji v Gangaram 1941 ILR Nagpur 178 and Prem Jagat Kuer vs Harihar Bakhsh Singh 1945 ILR 21 Lucknow 1 referred to