SUKDEVDOSS RAMPRASAD Vs. MUSAMMAT CHOTI RAI

JUDGEMENT

(1.) I have had the advantage of reading the judgment about to be pronounced by my learned brother and I entirely agree in his conclusions that the estate left by her husband to the plaintiff was an absolute estate and not a mere widow's estate, and that there was no prohibition by the husband against the adoption of a son. I also agree that an adoption is not necessarily invalid on the ground that the father to whom the adoption is made left no estate, In the present case, therefore, the adoption was valid; and if my learned brother is right in holding that the adoption did not divest the widow of her absolute estate, I agree with him that the estate has now vested in the adopted son by reason of a deed executed by her, Ex. III, I am, however, inclined to think that, although the widow held an absolute estate from her husband, the adoption of the 1 defendant would have the effect of vesting that estate in him. In a recent case from this Court it has been held by their Lordships of the Judicial Committee in Krishnamurthi Ayyar V/s. Krishnamurthi Ayyar 101 Ind. Cas. 779 : 50 M. 508 : A.I.R. 1927 P.C. 130 : 29 Bom. L.R. 969 : 53 M.L.J. 57 : 45 C.L.J. 620 : 4 O.W.N. 621 : 31 C.W.N. 910 : 28 L.W. 186 : (1927) M.W.N. 469 : 39 M.L.T. 52 : 8 P.L.T. 719 : 25 A.L.J. 945 : 54 I.A. 248 (P.C.) that "When a disposition is made intra vivos by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequenly adopted can affect that portion which is disposed of. The same is true when the disposition is by Will and the adoption is subsequently made by a widow who has been given power to adopt. For the Will speaks as at the death, of the testator, and the property is carried away before the adoption takes place."

(2.) This proposition is to a certain extent a modification of the theory of adoption, namely, that the adopted son takes the place of a natural son and succeeds by survivorship to the estate of the father as it stood at the time of his death, for the decision that devises by Will of the father are not to be affected by a subsequent adoption postpones the accrual of the adopted son's rights. No distinction has been drawn by their Lordships between, a devise to a widow and a devise to a third party, but 1 think that some distinction has always been recognized between the two in considering the effect of an adoption. If a widow has vested in her a widow's estate, undoubtedly she is divested of that estate by the mere act of adoption, and there is an observation so far back as 1865 in Bhoobun Moyee Debia V/s. Ramkishore Achatj Chowdhry 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 which supports the proposition that the widow stands in a different position to other persons when there is a question of the divesting of an estate. In that case it was held that where the adopted son had died leaving a widow and the estate vested in such widow, the adopted son's mother had no longer any power to make further adoption which would defeat the son's widow's estate. Their Lordships then observe: 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....

(3.) This would seem to imply that if there had been no widow and the son's estate had become vested in his mother, she could have made an adoption which could have divested herself of her estate. The point has been discussed at considerable length in Rai Jatindra Nath Chaudhuri V/s. Amrita Lal Bagchi 5 C.W.N. 20 and the view taken by the learned Judges was that: A Hindu widow adopting a son under the authority of her deceased husband upon the death of a son begotten or adopted whose estate she inherited as mother, divests herself of that estate by the act of adoption in favour of the son last adopted by her and such son takes the estate immediately on his adoption.