Ranade, J.:— In this appeal the only point argued before us had reference to the validity or otherwise of the adoption of the plaintiff-respondent No. 1 by one Tulsawa. This Tulsawa had succeeded as heir to her natural son who died at the age of thirty in 1884, leaving no nearer heir to him than his mother as he left no issue and his wife had died before him. Tulsawa, it appears, had at first adopted her daughter's son, but this adoption was set aside by the Civil Court in 1893. Thereupon she adopted the present plaintiff No. 1 as her son in 1894. The natural son of Tulsawa, with this mother's consent, had mortgaged some vatan lands in 1879 with the defendants who were his distant cousins, and the present suit was brought to set aside this alienation.
The defence was that plaintiff No. 1's adoption was not valid, as Tulsawa had no power to adopt the plaintiff, when her natural son had died at the age of thirty. The other objections under the Vatan Act, &c., need not he noticed as they were not pressed in appeal. Both Courts held that plaintiff No. 1's adoption was valid as Tulsawa had succeeded as heir to her son who died without issue and whose wife had died before him, and she had therefore the right to adopt the plaintiff,
The only question we have to consider is whether under the circumstances the adoption was properly held valid. Mr. Shamrao, who appeared for the appellants, contended that a mother who succeeded as heir to her son might make a valid adoption if her natural son died unmarried. But if he was married, the mother's power to adopt was extinguished and the estate must go to the reversionary heir of the son, especially in the case of a Brahmin family such as the one to which the parties belonged. This contention of Mr. Shamrao was apparently based on what is stated in Payapa v. Appanna, where on page 331 occurs the remark that the widow's power to make an adoption is recognized when she succeeds as mother and heir to an unmarried son. In Sangapa v. Vyasapa there is a similar remark of Mr. Justice Fulton, which says that in such a case the test is whether the son died unmarried rather than whether he had attained ceremonial competency. This test of the son dying unmarried appeals to have been also mentioned in Ram Soondur Singh v. Surbanee Dossee In the leading case on the subject—Mussumtit Bhoobun Moyee v. Ram Kishore—the same test is suggested in the remarks of their Lor ships of the Privy Council. In West and Buhler, page 986, the remark appears that it is the investiture of the son which gives him ceremonial competency. If the son dies before that period the widow may adopt. But after that stage it aloes not appear that the capacity of adoption can revert to the mother. It will be noted that this passage from West and Buhler fixes the competency of the mother at a much earlier stage than even Mr. Shamrao admitted was reasonable and proper. Mr. Shamrao would fix the limit at marriage and not at the investiture as is done by the writers of the Digest. As regards ceremonial competency Mr. Justice Pulton would assign to it a more subordinate place than to the test of marriage—Arnava v. Mahadgauda
We have thus tried to sum up the points raised on behalf of the appellants. It appears to us, however, that the real limitation on the mother's right to adopt when she succeeds as heir to her son really does not depend upon either investiture, or marriage, or competency of the son to whom she succeeds, as heir. The mention of marriage or ceremonial competency or investiture may Lave had reference to the particular facts of each case. When the authors of the Digest laid down the limits of investiture or ceremonial competency they had obviously in mind the religious law. When they come to discuss the decided cases they refer to Bhoobun Moye v. Sam Kishore as lay in down the law that the widow can exercise the authority when her son dies unmarried or leaves no child or widow behind. The true principle was first enunciated in express terms by the Privy Council in Sajah Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya where the law was laid down that the mother may adopt when by such adoption she derogates from no other rights save her own as her son's heir. Whatever ceremonial defects there may be the principle that the widow succeeding as heir to her son—which implies that the son has left neither widow nor issue, may adopt—has been now confirmed by a series of decisions commencing with Bhoobun Moyee Debi's case and coming down to our own time—Bhoobun Moyee v. Ram Kishoro Rajendro Nath v. Jogendro Nath, Sri Raghunadha v. Sri Brojo Krishoie, Rajah Vellanki Venkata Kishna Row v. Venkata Hama Lakshmi Narsayya Pudma Coomari Debi v. The Court of Wards, Thayammal v. Venkalarama, Rvkhmabai v. Radhabai Rupchand v. Rakhmabai,(11) Annummah v. Mabbu Bali Kally Prosonno v. Gocool Chunder Sri Dharnidhar v. Chinto. The argument that the sara are in proper hands when the widow takes possession of them as heir to a son who dies before marriage but after investiture applies equally to a widow who adopts because her married son dies without leaving issue or widow.
The text writers on the Dattaka Law permit a man to adopt a son not only when he has no male issue born to him, but also when such male issue dies. The husband can confer this same double power on the widow, and though in this Presidency the husband's expressed permission is not required by the widow, the mother who adopts a son because the son born to her is dead and has left no issue or widow, behind, really exercises the authority conferred on her by implication by her husband. Where, therefore, she divests by her act of adoption no other estate but her own, her power cannot properly be questioned. This was the view taken by Ranade, J., in Gavdappa v. Girimallappa where he distinguished the decision in Kishnarav v. Shanharrav on the ground that in this last case the son's widow survived her husband and it was therefore held that the general rule that no vested interest can be divested by the act of adoption applied. Mr. Justice Parsons and Mr. Justice Ranade reaffirmed this view in Payappa v. Appanna. Mr Justice Fulton in Amava v. Mahadgauda took the same view. In Sangappa v. Vyasapa the Court (Bayley and Fulton, JJ.) was asked to holl that the mother's authority was at an end when the son dies unmarried after attaining full age and ceremonial competency. But it declined to lay down such a proposition. In Ram Soondur Singh v. Surbanee Dossee the second adoption was made after, the first adopted son had lived twelve years and was contended that the second adoption was invalid because the first adoption had served all religious purposes. This contention, however, was disallowed on the ground that the continuance of spiritual purposes was not exhausted by the first adoption. The second adoption was necessary to perform those rites which had to be repeated every year. The attainment of ceremonial competency by reason of investiture or marriage of the first sod, whether natural or adopted, could not dispense with this necessity of second adoption to continue these rites. As has been shown above the sacra represent not only the idols in the place of worship, but also the rites and the services to the manes which have to be performed in memory of the father at least twice a year though not more. The argument ceremonial competency is thus without much force. Spiritual efficacy of worship and oblation really represent the services the son has to render to his father all his life and that makes it necessary for the widow to adopt when her sou dies without issue. The mention of investiture, marriage or competency as limitations on the widow's power has reference more to the ceremonial law than to the civil law as administered by the Court, and the whole current of recent decisions has been to base this limitation solely on the question whether the widow's act of adoption derogated from her own rights or the vested rights of others. The vested rights of no other relations were affected by Tulsawa's adoption of the plaintiff.
We therefore confirm the decree of the Lower Court and dismiss the appeal with costs.
Appeal dismissed.