YESHVADABAI VAMAN KARANDIKAR Vs. RAMCHANDRA SHANKAR PATVARDHAN

JUDGEMENT

(1.) [His Lordship after setting out the facts of the case proceeded.] It is contended on behalf of plaintiff No. 1 that the adoption of defendant No. 1 was invalid on the grounds that lI the authority given by the father-in-law by his will could operate only during his life-time, that on the death of Keshav the estate vested in the widow, defendant No. 2, that the adoption could not divest the estate thus vested in defendant No. 2, and that the consent given by defendant No. 2 and the plaintiff was not a valid and free consent. It is further contended that the consent even if given is not sufficient to validate the adoption, and that the plaintiff is not estopped from disputing the adoption. The learned pleader on behalf of the appellant relied on the case of Lakehmibai V/s. Vishnu Vasudev (1905) I.L.R. 29 Bom. 410, s.c. 7 Bom. L.R. 436, where it was held that the father-in-law's assent did not survive beyond his life-time so as to enable the son's widow to divest the estate which had already devolved by inheritance on heirs who did not derive title through the son. It was contended on the other hand on behalf of the respondent that on the death of Keshav the estate did not vest in his widow, defendant No. 2, but vested in the panchas, and that the bequest in favour of the adopted son was valid according to the decision in Dinesh Chandra Roy Chowdhury V/s. Biraj Kamini Dasee (1911) I.L.R. 39 Cal. 87, It is not suggested in this case that the bequest in favour of the adopted son is invalid by virtue of Section 99 of the Indian Succession Act and the ruling in Dinesh Chandra Roy Chowdhury V/s. Biraj Kamini Dasee has no bearing on the present question. The bequest in favour of the adopted son would be valid only if the adoption was a valid, one. The question, therefore, that arises for decision is whether the adoption of defendant No. 1 by the daughter-in-law who was not the widow of the last male holder is valid on account of the authority given in the will of the father-in-law Keshav Hari. If that authority is insufficient to validate the adoption, the bequest in favour of the adopted son whould not operate. We think that the authority given by the father- in law by his will, Exhibit 95, did not survive beyond his life-time. The case of Lakshmibai V/s. Vishnu Vasudev has been followed in Datiatraya V/s. Gangabai (1921) 24 Bom. L.R. 69, 72 where it was held by Shah J. that under the Hindu law the daughter-in-law could only adopt with the consent of the father-in-law, that such consent is operative only during his life-time, and that the consent contained in his will is of no avail. We think, on these authorities which are binding on us, that the adoption of defendant No. 1 cannot be sustained on the authority contained in the will of Keshav.

(2.) It was argued on behalf of the appellant that on the death of Keshav the estate vested in his widow defendant No. 2, that the estate could not remain in abeyance, and that the authority of Keshav under his will, Exhibit 95, being insufficient to validate the adoption, plaintiff was entitled to succeed. It was argued on the other hand that even though the adoption may not be validated by the consent given by Keshav under his will, Exhibit 95, the adoption is validated by the consent given by defendant No. 2 and the plaintiff by Exhibit 74. This contention on behalf of the adopted son seems to bo well founded. It was held in Rupchand Hindumal V/s. Rakhmabai (1871) 8 B.H.C.R. (A.C.J.) 114, 119 that where the estate is vested in the widow, she may adopt without the consent of the reversioners, but when the estate is vested in persons other than the widow and the immediate effect of the adoption would be to defeat the interest of those persons, then justice requires that their consent should be obtained. In Payapa v. Appanna (1898) I.L.R. 23 Bom 327 Ranade J. laid down the general rule that it is only the widow of the last full owner who has a right to take a son in adoption to such owner, and a person in whom the estate does not vest cannot make a valid adoption so as to divest third parties in whom the estate has vested, and further laid down four exceptions of which the third appears at p, 331 to the effect that when an adoption takes place with the full assent of the parties in whom the estate has vested upon inheritance, the adoption is validated by such consent. In Siddappa V/s. Ningangavda (1914) I.L.R. 38 Bom. 724, s.c. 16 Bom. L.R. 663 it was held that the widow of a predeceased son can make a valid adoption with the contemporaneous consent of the mother-in-law in whom the estate of the last full owner has vested as an heir.

(3.) It is unnecessary to discuss the other cases cited in the judgment of the lower Court and in the arguments at the time of the hearing. We may refer to the recent case of Vaman Vithal V/s. Venkaji Khando (1921) I.L.R. 45 Bom, 829, s.c. 23 Bom.. L.R. 269 as laying down that the consent of the person in whom the estate is vested validates the adoption, and by such adoption the whole estate is vested in the adopted son. It was held by their Lordships of the Privy Council in Pratapsing Shivsing V/s. Agarsingji Raisingji (1918) L.R. 46 I.A. 97,'s c. 21 Bom. L.R. 496 that a Hindu widow can exercise the power to adopt which is vested in her so long as the power is not extinguished or exhausted and although her husband's estate is not vested in her, It is not suggested in this case that the power of adoption of the daughter-in-law, defendant No. 3, is extinguished or exhausted, and the trend of the decisions in this Presidency is that the consent of the person in whom the estate is vested and whose interest is likely to be defeated by the adoption is sufficient to validate the adoption, We think, therefore, that the adoption of defendant No. 1 with the consent of Gangabai, defendant No. 2, the widow of Keshav, is valid.