MAHAJAN .C. - (1.) THE Judgment of the court was delivered by
(2.) 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: JUDGEMENT_206_AIR(SC)_1955Image1.jpg 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 form a 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 adoption. That perhaps would have been the simplest way to end the dispute. Against the decision of the High court this appeal in form a pauperis is now before us by special leave.
(3.) 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, i.e. in Bhoobun Moyee v. Ram Kishore(1) 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 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. 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 Textbooks, 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. ;