YADAVALLI TRIPURAMBA (DEAD) Vs. YADAVALLI VENKATARATNAM (DEAD)

JUDGEMENT

(1.) The facts of this case are, one Venkata Somayajulu died leaving a widow and a son, Subbanna Sastri. The son died 26 years ago unmarried at the age of 25. In 1913, the widow adopted the second defendant with the consent of the sapindas as the son of her late husband. The question to be decided is whether this adoption is good or bad.

(2.) That a Hindu widow can adopt a son in order to carry on the line and provide for the due performance of the obsequies of her husband, either with the authority of the husband or with the consent of the husband's sapindas, is well established in this Presidency. It is also well established that this power of adoption can be exercised on the death of a son or adopted son, as often as occasion arises: but it is also established that there is some limit to the exercise of this power and that it can become exhausted. It is argued in this case that the limit is reached as soon as a son, natural or adopted, either marries or attains an age, which is put alternatively as that of attaining majority, that is 18, or that of attaining full legal capacity to himself adopt a son, which was held in Tarachurn Chatterjee V/s. Sureshchunder Mukerjee (1889) I.L.R. 17 Cal. 122 to be sixteen. No direct authority for this proposition can be found in any of the Indian Reports, but it is based on a dictum of the Privy Council in Madana Mohana Deo V/s. Purushottama Deo (1918) I.L.R. 41 Mad. 855: 35 MLJ 138, which I will deal with more fully hereafter. The limit to the authority to adopt is stated in the judgment of the Privy Council in Mussammat Bhoobunmoyee Debia V/s. Ramakishore Acharj Choudhnry (1865) 10 M.I.A. at p. 279, which judgment was explained and the principle re-affirmed in Pudma Coomari Debt V/s. The Court of Wards (1881) L.R. 8 I.A. 229: 8 C. 302 and Thayammal v. Venkatarama (1887) L.R. 14 I.A. 67: 10 Mad. 205. The prin ciple to be deduced from these three cases is stated in the judgment of Chandravarkar, J. in the Full Bench case of Kamakrishna V/s. Sham Rao (1902) I.L.R. 26 Bom. 526 at 537 thus: "Where a Hindu dies leaving a widow and a son, and that son himself 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. "The principle so laid down has the approval of the Privy Council in Madana Mohana Deo V/s. Purushothama Deo (1918) I.L.R. 41 Mad. 855: 35 MLJ 138. No subsequent adoption will be allowed, which will divest a right vested by inheritance in some person other than the son or the mother herself as representing the son. So, if a son dies leaving either a son or a widow, the mother can no longer adopt as the estate is vested in the son's son or if there be no sons, in his widow, she having a right to adopt a son to her husband. There is direct authority that the limit is not reached when the son dies though of age without leaving a son or widow in Venkappa Bapu v. Jivaji Krishna (1901) I.L.R. 25 Bom. 306 where a son had attained the age of 30 before his death and had married but left no widow, and in Sangappa V/s. Vyasappa 8 Bom. P.J. 684, where he attained the age of 30 and died unmarried. This very point was also mentioned in Mussammat Bhoobun Moyee Debia V/s. Ram Kishore Acharji Choudhury (1865) 10 M.I.A. at p. 279 in the judgment of Lord Kingsdown, where he stated, "If Bhowanee Kishore (that is, the son) had died unmarried his mother 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. "The ordinary rule referred to there is, as I understand it, the rule subsequently so clearly stated in the judgment of Chandravarkar, J. This statement was obiter, but that is a clear indication of the then view of the Privy Council.

(3.) Turning now to Madana Mohan Deo V/s. Purushothama Deo (1918) I.L.R. 41 Mad. 855: 35 MLJ 138, in that case a widow adopted a son who died leaving a widow, and it was held following the cases quoted above that the right of adoption by the first widow had been exhausted. But after approving the principle laid down in the judgment in Rama Krishna Ramachandra V/s. Shamrao Jeshwant (1902) I.L.R. 26 Bom. 526 at 537, their Lordships stated that they were of opinion that "the principle must be taken as applying so as to have brought the authority to adopt conferred on the first widow to an end when the son whom she had 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. " It is to be observed that it does not say, "after himself attaining full age or the right to adopt a son. "Their Lordships however went on to say that "they do not desire to be understood to say that, even in the absence of authority in the son's widow to adopt, the succession of the son and his dying after attaining full legal capacity to continue the line would not in themselves have been sufficient to bring the limiting principle into operation, and so to have so determined the authority of the first widow, who was not the widow of the last owner, and could not adopt a son to him. "I understand this to mean that their Lordships wish it to be understood that they do not give any decision on the point, which is the point in this case, and perhaps indicate that the inclination of their minds was against the contention that such adoption was permissible. But the point was not before the Council and did not arise in that case, and it would be most dangerous to treat a dictum of that kind as an authority.