1. This is a Letters Patent appeal against the decree of Hidayatullali, J. confirming the respondent 1's claim to property on the basis of his adoption.

2. The fields in dispute are S. Nos. 691/1, 807/2 and 742/4, and their accretion S. No. 691/2, of ‘mouza’ Shegaon, Taluq Khamgaon, District Buldana. We shall, therefore, treat all these four fields on the same footing. The fields belonged to one Krishnaji Shegokar who gifted them to Jairam, son of his daughter Punjabai who is the appellant. Jairam died on 6-8-1945 leaving behind him Iris father Baliram, his mother Punjabai, his step-mother Shewantabai (respondent 2), and his minor widow Chandrabhaga who was then aged about 15. After his demise, Chandrabhaga, wihle still a minor, adopted Shamrao who was older in age, as a son to her husband on 11-8-1947.

3. Shamrao filed the suit, out of which the present appeal arises, for possession of the fields left by his adoptive father and impleaded Baliram and Punjabai as defendants. Baliram died during the pendency of the suit on 22-9-1949 and was substituted by his widow Shewantabai as his legal representative. The suit succeeded in the trial Court, and the decree was upheld in the first and second appeals. Punjabai has, therefore, preferred the present appeal and challenges the validity of Shamrao's adoption.

4. The parties are governed by the Bombay School of Hindu Law which entitles a widow to adopt in the absence of an express or implied prohibition from her husband. It is not disputed that even a minor widow can vahdly adopt a person older in age than herself, provided she had attained the age of discretion and was able to form an independent judgment in selecting the boy to be adopted.

5. See — ‘Basappa v. Sidramappa’, AIR 1919 Bom 107 (A). The adoption is solely challenged on the ground that while Baliram was alive, Chandrabhaga could not adopt without his consent and authority, particularly as it affected his own right to adopt a son unto himself.

6. The power of a Hindu widow under the Bombay School of Hindu Law to adopt without the consent of her husband's ‘Sapindas’ where he was separate from the family at the time of his death has been etsabhshed from a long time and has never been questioned. See — ‘Rakhmabai v. Radhabai’, 5 Bom HCR 181 (B). In this case the learned Judges of the Bombay High Court observed:

“Upon the review which we have made of the authorities applicable in this part of India, we are of opinion that in the Maratha country, wherein the property in question in this suit is situate, a Hindu widow may, without the permission of her husband and without the consent of his kindred, adopt a son to him, ‘if the act is done by her in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive’.” (Underlining here into ‘???’ is ours).

7. The restriction enunciated in the statement underlined has never been enforced and was, it appears, mentioned only as a rule of caution so that the rights accruing prior to the adoption may not be lighdy distmhed. In fact, as has been held, in — ‘Govinda v. Shenfad’, AIR 1952 Nag 199 (C) the motive of a widow in making an adoption is not material upon the question of its vahdity.

8. In the instant case the property vested in Jairam and was inherited by his widow Chandrabhaga on his demise. This is not, therefore, a case in which any person other than the widow was divested of the estate by the adoption, and consequently the cases on the question of the right of a widow to adopt when it divests others of property do not arise for consideration.

9. Nor does any question of competing rights between a mother-in-law and daughter-in-law to make the adoption arise in the case. The sole question for decision is whether Chandrabhaga was competent to adopt without taking the consent of her father-in-law who was joint with her husband at the time of his death.

10. The earliest case on the point arose in 1879 when a Full Bench of the Bombay High Court held in — ‘Ramji v. Ghamau, 6 Bom 498 (FB) (D), that a widow whose husband was joint at the time of his death cannot adopt, when she has not the audiority of her husband or the consent of his undivided coparceners. This ruling was followed in — ‘Dinkar v. Ganesh’, 6 Bom 505 (FB) (E), which was also a Full Bench case.

11. On the same authority it was held in — ‘Vithoba v. Bapu’, 15 Bom 110 (F), that in such a case the consent of the father-in-law at the time of adoption was sufficient.

12. 6 Bom 498 (FB) (D), was considered by their Lordships of the Privy Council in — ‘Yadao v. Namdeo’, AIR 1922 PC 216 (G), and after referring to a passage in the judgment of Sir Lawrence Jenkins, C.J, in — ‘Lakshmibai v. Saraswatibai, 23 Bom 789 (H), in which he expressed the view that in the Presidency of Bombay the right of a widow to adopt was inherent and not merely delegated, their Lordships observed:

“There does not appear to Their Lordships to be any sound reason why in the Mahratta country of the Presidency of Bombay the Hindu Law as to the power of a Hindu widow who has not the authority of her deceased husband to adopt a son to him, should depend on the question whether her husband had died as a separated Hindu or as an un-separated Hindu, or on the question whether the property which was vested in her when she made the adoption was or was not vested in her as his heir.

If it was her religious duty to adopt a son to her husband, that duty would be the same in either case, although possibly the right of the adopted son to the property vested in, the widow might be different.”

13. Similarly, after referring to the passage from ‘Rakhmabai v. Radhabai (B)’, quoted above, their Lordships observed:

“That decision was not based upon the fact that the deceased husband was a separated Hindu, nor was it based upon the fact that at the time of the adoption, the widow who made the adoption had vested in her the whole or any part of the properly which had belonged to her husband.

Their Lordships regard it as equally applicable to an adoption by a Hindu widow of the Mahratta country of the Province of Bombay, whether her husband at the time of his death was joint or separate, and whether his property was or was not vested in her as his heir at the time when she made the adoption, and consider that it is a decision to be applied in this appeal.”

14. How far ‘Yadao v. Namdeo (G)’% had affected the decision in ‘Ramji v. Ghamau (D)’, and the subsequent decisions which followed it came up for consideration by the Full Bench of the Bombay High Court in — ‘Ishwar Dadu v. Gajabai’, AIR 1926 Bom 435 (FB) (I), and it was held by a majority of four against one that the observations of the Judicial Committee were obiter and that the earlier decisions of the Bombay High Court beginning from ‘Ramji v. Ghamau (D)’, were not overruled.

15. This question came up before the Judicial Committee of the Privy Council in — ‘Bhimabai v. Gurunathgouda’, AIR 1933 PC 1 (J), in which, after referring to the above passages from ‘Yadao v. Namdeo (G)’ their Lordships observed that in the first passage “the Board expressed its disapproval of the decision in ‘Ramji v. Ghamau (D)’, “and the second” was a clear approval of the decision in ‘Rakhmabai v. Radhabai (B)’.”

16. It was contended in ‘Bhimabai v. Gurunathgouda (J)’, that in view of the decision in ‘Ramnad case’, — ‘Collector of Madura v. Moothoo Ramalinga Satihupathy’, 12 Moo Ind App 397 (PC) (K), and in — ‘Sri Virada Pratapa Ragbunad Deo v. Sri Brozo Kishoro’, 3 Ind App 154 (PC) (L); ‘Ramji v. Ghamau (D)’, could not be deemed to be overruled. On this point their Lordships of the Privy Council observed:

“Now both these cases were from Madras, and according to the law as stated in the commentaries of that school, a widow, who has not the express authority of her husband, cannot adopt a son to him without the consent of his kinsmen. The commentaries, however, do not specify all the kinsmen. All that they say is that the consent to be obtained must be the consent of ‘the husband's father, etc’

In both the cases the High Court at Madras considered that, in the absence of the husband's father, the consent of any kinsman was sufficient, but the Board intimated its dissent from that view. The Board held that the consent to be obtained, when the family was undivided, must be the consent not of a separated kinsman who had no interest in the property, but of his (the husband's) co-parceners to whom his interest had passed on his death by survivorship, and it was in this connection that the observations of the Board quoted above were made.

These observations cannot apply to an adoption by a widow in Bombay. The Mayukha and the Kaustukha, which govern the Mahratta School, regard adoption by a widow as a religious duty, which does not require the authority either of the husband or of his kinsmen. If no consent is required, no question of injustice or hardship to the kinsmen can arise.”

17. In the end the Judicial Committee held that. ‘Ramji v. Ghamau (D)’, was overruled by Yadao v. Namdeo (G), and that the decision in ‘Ishwar Dadu's case (I)’, was erroneous. The rule was regarded as firmly established in later decision of the Judicial Committee in — ‘Vijaysingji v. Shivsangji’, AIR 1935 PC 95 (M).

18. In — ‘Amarendra Mansingh v. Sanatan Singh’, AIR 1933 PC 155 (N), their Lordships of the Privy Council drew attention to the essentially religious basis of the law of adoption. This warning was necessary as the case law in India was drifting towards introducing extrinsic considerations of the rights in properly as the basis for deciding the validity of adoptions. After referring to certain texts, their Lordships observed:

“In their Lordship's opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites.” They further observed:

“Having regard to this well-established doctrine as to the religious efficacy of son-ship, their Lordships feel that great caution should be observed in shutting the door upon, any authorised adoption by the widow of a sonless man: See in this connection — ‘Suryanarayana v. Venkataramana, 29 Mad 382 at p. 388 (PC) (O). The Hindu law itself sets no limits to the exercise of the power during, the lifetime of the donee, and the validity of successive adoptions in continuance of the line is now well recognized.

Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property.”

19. It is no doubt true that their Lordships referring to the scope of the power of adoption further observed that there must be some limit to its exercise. No such limit has, however, been indicated in the ruling, and so far-as the Bombay School of Hindu Law is concerned, their Lordships of the Privy Council have recognised clearly in — ‘Bhimabai v. Gurunathgouda’, (J), the absolute right of a widow in the Mahratta country to adopt without reference to any authority either of her husband or his kinsmen, on the basis of a religious duty.

20. It is obvious that where the observance of a religious duty is concerned, no obstruction of a secular nature can prevail. The strictly religious nature of adoption was also stressed in — ‘Mst. Draupadi v. Vikram’ AIR 1938 Nag 423 (P); and — ‘Govinda v. Shenfad’, (C), (cit sup.). In — ‘Bajirao v. Ramkrishna’, AIR 1942 Nag 19 at p. 24 (Q), it has been observed:

“We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member.”

21. This passage was cited with approval by their Lordships of the Privy Council in — ‘Anant Bhlkappa v. Shankar Ramchandra’, AIR 1943 PC 196 (R).

22. It was, however, urged that under Article 141 of the Constitution, it is only the law declared by the Supreme Court that is binding on the Courts in India, and, therefore, the Privy Council decisions which are contrary to the original text of the Mayukha, are open to review. It was also urged that these decisions do not relate to a joint family and do not consequently apply to the instant case, and further that Chandrabhaga could not exercise her right as it affected that of her father-in-law to make the adoption for himself.

23. Section 212 of the Government of India Act, 1935, invested the Privy Council decisions with binding authority. Article 225 of the Constitution lays down that the law administered in any existing High Court remains the same as immediately before the commencement of the Constitution. Therefore, the law laid down by the Privy Council, which does not conflict with any decision of the Supreme Court would be binding on us.

24. The relevant texts in Nilakantha Bhatta's Vyavahara Mayukha, which bear on the subject, are the following:

25. There is no difference in the translation of the first text by both Borrodaile and Mandlik. In the words of Mandlik it means:

“The husband's permission is intended only for a woman whose husband is alive, for evident worldly reasons. But a widow may adopt even without if by the assent of her father, or (in his absence) by that of her ‘jnati’ (clansmen).”

26. It is the second text which is controversial. It is a commentary by Nilakantha Bhatta on the following texts of Yajnavalkya and Katyayana:

“The father should protect the maiden daughter, the husband, when (she is) married, the sons in (her) old age, in their absence their clansmen. A woman has no independence at any time.” (Yajnavalkya).

“Whatever spiritual acts (or acts relating to the future state) a woman performs without the permission of the father, the husband, or the son, to obtain a benefit after death, it shall become fruitless.” (Katyayana).

27. This is the rendering by Mandlik of these texts. They are translated by Borrodaile as below:

“Let a female be taken be taken care of, by her father while a child, by her husband when married, and by her sons, in her old age. If none of these exist, let her other relations (Nyati) take care of her. A woman is never fit for independence.” (Yajnavalkya).

“If a woman, without the orders of her father, husband, or son should perform obsequies, such obsequies are of doubtful validity.” (Katyayana).

28. The words underlined (here in ‘???’) by us above indicate the point of difference in the two renderings but the difference is not vital for the clansmen or relations of the female would not be different from those of her fadier, husband or sons. What further is evident is that a close relation like the husband's father would not be classed as ‘Jnati’ as put by Mandlik or ‘Nyati’ as Borrodaile has spelt it. This term which is rendered as kinsmen or clansmen usually denotes distant relations.

29. The word in the second text of Nilakantha Bhatta has been interpreted by Borrodaile as having reference “to difference of age”, whereas Mandlik has rendered it as a woman's dependence “in a particular state”. However, this does not affect the meaning of the text. The question is confined to the last two sentences of the text, which Borrodaile has translated as—

“Wherefore, at whatever age a married woman may (require to) receive the command of her husband, that very command is in the case of a widow not required ‘since the command of any other person, not here mentioned, is nowhere declared requisite’. Therefore the right of adoption, even without the order of her (late) husband, does pertain to a widow.”

30. And Mandlik as—

“Therefore that permission of the husband indicated for a particular state (by Yajnavalkya) is also laid down here (by Katyayana following Yajnavalkya), ‘and is not a new rule, laid down (without prior authority)’. Hence (it follows that) a widow has authority (to adopt) even without the permission of the husband.”

31. The portions underlined above mark the difference in the two translations. (See Mayne on Hindu Law and Usage, Edn. 1950, S. 161, p. 214, F.N (f)). It is contended that Mandlik's rendering is authentic and accordingly in determining the right of a widow to adopt, the first text should prevail, which requires the permission of her father, or in his absence, of the kinsmen.

32. Even according to Mandlik, the restrictions placed on the power of a widow have reference to her “particular state”. If, therefore, there be no husband, or father, or persons of the ‘jnati’, her right to adopt is absolute. It is, as already stated, doubtful if the term ‘jnati’ would cover a near relation like the father-in-law who has not been specifically mentioned in the texts as a person whose consent is necessary to taking a boy in adoption.

33. The consent of ‘jnati’ is not even referred to by Katyayana. ‘These texts, therefore, do not clearly establish that the consent of the father-in-law is essential to the validity of the adoption.

34. With ‘Rakhmabai v. Radhabai’, (B), as the starting point, it would be anomalous if in the case of a joint Hindu family, the widow's pious obligation to perpetuate her husband's lineage, which is as great as in the case of a divided family, be made dependent on the consent of his or her kindred. It was this anomaly which was removed by their Lordships of the Privy Council in — ‘Yadao v. Namdeo’, (G), and although it was not strictly necessary to do so in that case where the family was divided, the case of — ‘Rakhmabai v. Radhabai’, (B), if carried to its logical conclusion, would lead to the same result.

35. We do not find in the texts of Nilakantha Bhatta anything sufficient to justify a different conclusion. We are also of the opinion that the right of Chandrabhaga to adopt a son to her husband, after it was exercised, cannot be called into question on the ground that it affected the right of her father-in-law to adopt a son unto himself. The appeal fails and is dismissed with costs.

36. Appeal dismissed.