VAIDYANATHA SASTRI Vs. SAVITHRI AMMAL

JUDGEMENT

(1.) This reference which was argued before the long vacation raises a question of considerable difficulty which has given rise to much difference; of opinion. On the one hand we have the judgment of Davies and Bhashyam Iyengar, JJ., in Sreeramulu v. Krishnamma (1902) I.L.R. 26 M. 148 : 12 M.L.J. 197 which is supported by Sadasiva Aiyar, J. in the order of reference. On the other hand we have the current of Bombay decisions ending with Ramakrishna v. Tripura Bai with which Spencer, J., agrees.

(2.) With reference to the decisions of the Privy Council which have been cited on either side, I may say at once that I do not consider Bamundoss Mookerjea v. Mussamut Tarinee (1858) 7 M.I.A. 169 and Moniram Kolita v. Kerrikolitany (1880) L.R. 7 I.A. 115 : I.L.R. 5 C. 776 as of any assistance because the point now in question did not in any way arise for consideration by their Lordships and was not considered by them. As regards the first case it had been held by the Bengal Sudder Dewani Adawlat in Ranee Krishnamonee v. Rcbjah Oodwunt Singh (1824) 3 S.D. Ad. Rep. 228 that an alienation for necessary purposes made by a widow before adoption could not be questioned by the adopted son. This was all that was decided and that the head- note seems to go far beyond the decision. The judgment no doubt proceeded on the view that the alienation would not have been binding at all upon the adopted son, if it had not been for a necessary purpose, but the point really did not arise. In the course of this case a pundit expressed the somewhat extravagant opinion that a widow who had a power of adoption but had not yet exercised it was in the position of a femme enciente, and more than twenty years later the right of such a widow to the possession and enjoyment of the estate left by her husband was questioned on the strength of this opinion in Bamundoss Mooherjea v. Mussamut Tarinee (1858) 7 M.I.A. 169. The Sudder Dewani in 1850 overruled this contention in an elaborate judgment, which is set out at page 177 etc., of Moores report, in which they pointed out that the decision in Ranee Krishnamonee v. Rajah Oodwant Singh (1880) L.R. 7 I.A. 115 : I.L.R. 5 C. 776.was no authority for such a proposition and observed, it seems to me, obiter, " In that case the son who was adopted became the undoubted heir; and it was of course the correct doctrine that no sale by a widow who possesses only a very restricted life interest in the estate, could have been good against any ultimate heir, whether an adopted son or otherwise, unless made under circumstances of strict necessity."

(3.) Though their Lordships expressed their agreement with the principles laid down in the judgment of the Sudder Court and their entire concurrence in it, it seems to me to be going too far to regard them as having adopted as their own the obiter dictum of the Sudder Court on a question which did not arise. More weight attaches to the observation of their Lordships in the well-known case in The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 at p. 443 that " the rights of an adopted son are not prejudiced by any unauthorized alienation by the widow which precedes the adoption," but this observation again was purely obiter. On the other hand I am unable to agree with Bhashyam Iyengar, J. in regarding the observation of their Lordships in Moniram Kolita v. Kerrikolitany (188O) L.R. 7 I.A. 115 : I.L.R. 5C 776 as direct authority the other way. In considering the question whether the well-known texts about the widow keeping unsullied the bed of her lord required them to hold that her estate was forfeited by an act of unchastity committed after succession to the estate, their Lordships observed that, if it were so held, a purchaser or mortgagee from her would lose his estate in consequence of an act of unchastity committed by her prior to the sale or mortgage. The implication that in such a state of the law mortgages and alienations made by the widow before the act of unchastity would remain unaffected appears somewhat far- fetched, even if it be assumed for the moment that the same considerations would be applicable in the case of adoption as in the case of unchastity.