Macleod, C J

[1] The plaintiff sued for a declaration that he was the adopted son of Dadu Babaji and owner of the plaint property, and to recover joint possession of those lands, which were joint between himself and Defendants Nos. 2 and 3, or in the alternative for separate possession of his half share by partition. The following pedigree shows the relationship of the parties :

[2] The plaintiff alleged that Balabai, widow of Dada, took him in adoption from his natural father, Defendant No. 3, on September 25, 1919, and Defendants Nos. 1 and 2, acting in collusion denied his adoption and dispossessed him of his property. Defendants No. 1 and 2 filed a joint written statement. They denied the factum of plaintiff s adoption; they disputed that Balabai, as a widow in a joint Hindu family, was competent to adopt; they alleged that, after the death of Babaji and Krishna, their sons continued joint; and that Dadu, husband of Balabai, died while the family was still joint. Defendant No. 3 and Defendants Nos. 4 to 7, who were joined as tenants of some of the suit lands, did not appear. The trial Judge found that the plaintiff was adopted, but that his adoption was not valid, that Dadu and Babaji died in union with Defendants Nos. 2 and 3, and dismissed the suit with costs on February 26, 1923.

[3] The plaintiff has appealed.

[4] The trial Judge has dealt with the evidence adduced by the plaintiff to support his contention that Dadu and Babaji were separated from Defendants Nos. 2 and 3 carefully and in considerable detail. It was alleged that this separation took place between Babaji and Krishna by a partition by metes and bounds of the family property. It is sufficient for me to say that the plaintiff failed entirely to prove such a partition, which, if it took place, must have been effected thirty-five years ago. On the contrary, the defendants proved to the satisfaction of the Judge that the family had remained undivided.

[5] The Judge then considered that the adoption by the widow of a member of a joint Hindu family could not be valid with regard to the joint family property, though it might be valid for religious purposes, relying on the opinion expressed by this Court in Yeknath v. Laxmibai A.I.R. 1922 Bom. 347 [LQ/BomHC/1922/94] .

[6] The appellants contend that, according to the decision of the Privy Council in Yadeo v. Namdeo A.I.R. 1922 P.C. 216, the plaintiff s adoption was valid and was, therefore, valid for all purposes. It is necessary, therefore, to consider whether that decision is binding upon us, or whether we are still bound by the Full Bench decision of this Court in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.).

[7] In that case the pedigree of the parties was as follows:

[8] Narayan and Jivaji were undivided brothers. Narayan died first, leaving a widow Kondai. Jivaji died leaving a widow Ghamau and two sons. Kondai adopted Bamji after Jivaji s death, without the consent of his sons. On their death Ghamau claimed the estate as the heir of the last surviving son. Bamji claimed to be entitled to the estate as having been adopted to Narayan, who it was admitted, had not given any permission or direction to Kondai to adopt. Westropp, C.J., said at P. 50

1.

There has not been any text quoted to us from the books to the effect that the widow of a parcener in a hindu undivided family may adopt, without the authority of her husband or the assent of his co-paroeners.

[9] Reference was then made to Narayan Babaji v. Nana Manohar [1870] 7 B.H.C.A.C. 153 in which the effect of the Hindu authorities was briefly recapitulated, and the learned Chief Justice continued at p. 503, as follows:

Accepting, however, the view which the cases, seem to establish, viz., that the widow where the husband dies separated, and she herself is the heir, or she and a junior co-widow are the heirs, may adopt without the sanction of the husband, (if he have not expressly, or by implication, indicated his desire that she shall not do so), and without the sanction of his kindred, we are not (as has been previously said in this Court) disposed to carry the deviation from ordinary Hindu Law further than it has been already established by precedents.... Assigning to the Maratha deviation from ordinary Hindu Law the limit-which we have above suggested, viz, that the widow of a Hindu, dying without leaving male issue, may, if her husband were separated from his family in estate (or, in other words, when she is his heir) adopt, without any express authority from him, (if he have not prohibited her from so doing or otherwise implied his intention that she should not adopt), and without the consent of his relatives and believing that there is not any sufficient text or precedent for conceding any wider range to that deviation and concurring in the remarks of Melvill, J., in Rupchand Hindumal v. Rakhmabat [1871] 8 B.H.C.A.C. 114, we feel ourselves at liberty to adopt the following passages from the judgment of the Privy Council in Sri Viruda Pratapa Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69, in which, after approving of the principles recognized by the Travancore case Ramaswaml v. Bhagali [1873] 8 Mad. Jur. 58, viz., that the requisite authority is, in the case of an undivided family, to be sought within that family, their Lordships say : The joint and undivided family is the normal condition of Hindu society. An undivided family is ordinarily joint, not only in estate but in food and worship; therefore, not only the concerns of the joint property, but whatever relates to their commensality and their religious duties and observances, must be regulated by its members, or by the manager to whom they have expressly, or by implication, delegated the task of regulation. The Hindu wife, upon her manage, passes into and becomes a member of that family. It is upon that family that, as a widow, she has her claim for maintenance. It is in that family that she must presumably find such counsellors and protectors as the law makes requisite for her. There seem to be strong reasons against the conclusion that, for such a purpose as that under consideration, she can, at her will, travel out of that undivided family and obtain the authorization required from a separated and remote kisman of her husband (6); and again; it may be the duty of a Court of Justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption, and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property, and it may be in the case of collateral succession, as in the present instance the rights of parties in actual possession, dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of, exercising dominion over property.

[10] To appreciate properly the facts in Yadao v. Namdeo A.I.R. 1922 P.C. 216, which was a suit filed in the District Court of Akola, West Berar, Central Provinces, it is necessary to set out the following pedigree:

[11] Pundlik, at the time of his death, was a member of a joint Hindu family consisting of himself, his cousin Namdeo, and Namdeo s two sons, Pandurang and Rambhau. Pundlik died childless, and thereafter Champabai, the senior wife, adopted Pandurang. The validity of that adoption was not disputed. Pandurang died in childhood, unmarried, in 1907.

[12] In 1908, Champabai adopted the plaintiff to her husband without having obtained the consent of anyone except plaintiff s natural father. Namdeo refused his consent, and his contention was that Champabai, as a widow, had no power, under the Hindu Law applicable to the family, to make the adoption, and also that such adoption by her had been prohibited by Pundlik.

[13] The trial Judge found that, after the adoption of Pandurang, the family had separated, and that, afterwards, when the contingency for a second adoption arose by reason of Pandurang s death, Champabai could validly adopt without the consent of Namdeo who was then separate. The learned Judges of the Court of the Judicial Commissioner held that there had been no separation of the joint Hindu family; that Pundlik intended that only Pandurang should be adopted and had given no general permission as regards the adoption of a son; that, on Pandurang s death, Namdeo and his son Rambhau became by survivorship sole owners of the joint family estate; and that Champabai could not make a valid adoption without the consent of Namdeo.

[14] Their Lordships considered that, under the terms o- the adoption deed executed by Namdeo, on April 23, 1905, when Pandurang was adopted, it was declared that Namdeo separated from Pandurang whom he had given in adoption. It was not merely an expression of an intention to separate, although an unequivocal intimation of an intention to separate by a member of a joint Hindu family governed by the Mitakshara would operate as a severance of the joint status : Girja Bai v. Sadashiv Dhunderaj [1916] 43 Cal. 1031 and Kewal Nain v. Budh Singh [1917] 39 All. 496. On the contention that Pundlik had prohibited the adoption of any other boy except Pandurang, their Lordships held that Pundlik gave no direction as to what should be done if Pandurang should be unavailable or should die after he was adopted. It was, therefore, necessary to consider what power, if any, Champai bai had under the Hindu Law applicable to the Maratha country of the Presidency of Bombay to adopt the plaintiff as a son to her deceased husband.

[15] After stating that it was not disputed that, according to that law, a Hindu widow, who is sole or joint heir to her; husband s estate, may adopt to her deceased husband without authority from her husband, and without the consent of his kindred or of the caste or ruling authority, but that she cannot adopt when her husband has expressly forbidden an adoption, and after referring to the decisions of this Court in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and Dinkar Sitaram Prabhu v. Ganesh Shivram Prabhu [1881] 6 Bom. 505 (F.B.) and the judgment of Sir Lawrence Jenkins in Lakshmibai v. Sarasvatibai [1899] 23 Bom. 789 in which the only question was whether the husband by implication had prohibited his widow from adopting, and the learned Chief Justice expressed the opinion, though it was not necessary for the decision of the case, that a widow s power to adopt did not rest on any delegation from her husband, but was her inherent right, their Lordships continued (pp. 616, 617):

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 unseparated 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.

[16] With due respect the meaning of this passage is not quite clear. If the husband died undivided no property could vest in his widow, but still their Lordships refer to property vested in the widow after her husband s death which might have vested in her either as her husband s heir or in some other capacity, If the husband were joint and had self-acquired property that property would vest in the widow as his heir, but other-wise nothing would vest in the widow. It is difficult then to see how the right of the adopted son to any property vested in a widow might be different, or to know for certain whether their Lordships were considering the possibility of no property having vested in the widow at the time she made the adoption. However, their Lordships then proceeded to refer to the case of Pratapsing Shivsing v. Agarsingji Raisingji [1919] 46 I.A. 97 where their Lordships said (p. 107):

The right of the widow to make an adoption is not dependent on her inheriting, as a Hindu female owner, her husband s estate. She can exercise the power, so long as it is not exhausted or extinguished, even though the property was not vested in her.

[17] But in that case the question whether the widow of a parcener in an undivided Hindu family could adopt, without ,any authority from her husband and without the consent of his co-parceners, did not arise.

[18] The case of Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 seems hardly in point, as the suit was between two widows of a Hindu in the Maratha country of this Presidency who had died childless and apparently separate. But their Lordships rely on the decision in that case as one to be applied in-the case before them as showing that the power of a Hindu widow to adopt was not based on the fact that her deceased husband was separated, or on the fact that at the time of the adoption the estate of the husband was vested in the widow, but on the inherent right of the widow to adopt if the act was done by her in her proper and bona fide performance of a religious duty. But the learned Judges in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 also referred to the decision of the Privy Council in Collector of Madura v. Muttu Ramalinga Satthupathy [1868] 10 W.R. 17 where their Lordships said (pp. 23, 24):

According to the doctrine of the Benares and Mahratta Schools, prevailing in the Peninsula it [assent of the husband] may be supplied by that of his kindred, her natural guardians.... The question who are the kinsmen whose assent will supply the want of positive authority from the deceased husband is the first to suggest itself. Where the husband s family is in the normal condition of a Hindu family - i.e., undivided, that question is of comparatively easy solution. In such a case the widow, under the law of all Schools which admit his disputed power of adoption, takes no interest in her husband s share of the joint estate, except a right to maintenance. And though the father of the husband, if alive, might as the head of the family and the natural guardian of the widow, be competent by his sole assent to authorize an adoption by her, yet, if there be no father, the consent of all the brothers, who, in default of adoption, would take the husband s share, would probably be required, since it would be unjust to allow the widow to defeat their interest by introducing a new co-parcener against their will. Where however, as in the present case, the widow has taken by inheritance the separate estate of her husband, there is greater difficulty in laying down a rule. The power to adopt, when not actually given by the husband can only be exercised when a foundation for it is laid in the otherwise neglected observance of religious duty, as understood by Hindus. Their Lordships do not think there is any ground for saying that the consent of every kinsman, however remote, is essential. The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption. In such a case, therefore, their Lordships think, that the consent of the father-in-law, to whom the law points as the natural guardian and venerable protector of the widow would be sufficient. It is not easy to lay down an inflexible rule for the case in which no father-in-law is in existence. Every such case must depend upon the circumstances of the family. All that can be said is, that there should be such evidence of the assent of kinsmen as suffices to show that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive.

[19] Reference was also made in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 to the decision of Westropp, J., in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 the general effect of which had been represented to the Court, though the judgment was not a written one and there was no report of it. Their Lordships in Yadao v. Namdeo A.I.R. 1922 P.C. 216 then dealt with the manner in which the judgment of Sir Michael Westropp in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 came to be reported, although it appears to have been delivered on March 7, 1866, expressing the opinion that no judgment was written in that case until after the judgment in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 delivered on August 26, 1868, had been reported in 1869.

[20] The main point discussed by Westropp, J., was the power of a Hindu widow to adopt a son to her deceased husband without an authority from him to do so. The other questions discussed were questions of fact, and it was found that the widow had been forbidden by her husband to adopt. Their Lordships may not have been aware that Sir Michael Westropp was in the habit of taking a very considerable time in writing his judgments, and further of delaying their delivery, and it may well have been that when he referred in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) to Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 as one of the cases in which all the authorities relating to the adoption by Hindu widows in this Presidency were collected, he had in his mind a judgment which he was either writing or had written but had not delivered.

[21] However that may be, the question before us now is whether the Pull Bench decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), which has never been considered otherwise than as accurately determining the Hindu Law in this Presidency regarding the restriction on a widow s power to adopt when her husband dies a member in an undivided family, can be considered as overruled by their Lordships remarks in Yadao v. Namdeo A.I.R. 1922 P.C. 216.

[22] On the facts of the case there was, with all due respect, no necessity to consider at all the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.).

[23] Champabai succeeded as heir to her son Pandurang, and she was only divesting her life estate by adopting again to her husband. It has never been disputed that in this Presidency a widow of a separated Hindu has the power to make such an adoption, and the fact that when the first adoption was made the husband was unseparated appears to have no bearing on the question whether the second adoption was valid or not.

[24] In Yeknath v. Laxmibai A.I.R. 1922 Bom. 347 [LQ/BomHC/1922/94] it was held that the decision of the Bombay High Court in Datto Govind v. Pandurang Vinayak [1908] 32 Bom. 499, that the widow of a gotraja sapinda cannot adopt so as to defeat the rights of the reversieners, had not been in apy way shaken by the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216, following the expression of opinion to that effect by Sir Lallubhai Shah in Dattatraya v. Gangabai A.I.R. 1922 Bom. 321 [LQ/BomHC/1921/149] .

[25] That learned Judge also considered the case of Yadao v. Namdeo A.I.R. 1922 P.C. 216 in Shivbasappa v. Nilava A.I.R. 1923 Bom. 17 [LQ/BomHC/1922/145] . A joint Hindu family consisted of two brothers, one of whom died leaving a widow. After the death of the other brother who left two widows him surviving, the widow of the first brother adopted, without the consent of the other two widows, and her adoption was held to be invalid. It seemed to be an anomaly that an adoption by the widow of the first brother before the death of the second brother would have been good according to the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216 and had still to be held invalid if made after the death of the second brother, but it was not considered advisable to carry the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216outside the case of a widow of a deceased coparcener adopting during the lifetime of the surviving coparceners.

[26] Again, in Bhau v. Narsagouda A.I.R. 1922 Bom. 300 [LQ/BomHC/1921/138] and Dattatraya Bhimrao v. Gangabai A.I.R. 1922 Bom. 321 [LQ/BomHC/1921/149] it was held that, except as to the effect of Yaiao v. Namdeo A.I.R. 1922 P.C. 216 on the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), it had not been considered that any other decision of this Court with regard to a widow s right to adopt in different circumstances had been overruled.

[27] We have now a case in which the question directly arises whether Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has been overruled by Yadao v. Namdeo A.I.R. 1922 P.C. 216, a case which arose outside the Presidency. My own opinion is that, although it may be gathered that if the facts in Yadao v. Namieo A.I.R. 1922 P.C. 216 had been the same as in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) the Board, as then constituted, would have held that Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was wrongly decided, the decision of the Board that a widow of a decaasei copircaner can adopt of her own inherent right was obiter, and that we are still bound to follow our own Pull Bench decision.

[28] It would appear from the judgment in that case of Westropp, C.J., that, according to the texts, some authority was required to enable a Hindu widow to adopt, but that in the Maritha country, by the decisions of this Court, a deviation from that rule hid been established, so as to allow the widow of a separated Hiudu dying without leaving mile issue to adopt without authority unless prohibited. With all due respect, therefore, it is difficult to see how it can be said that there is any authority in the texts for the doctrine that a Hindu widow has an inherent right to adopt, and to hold that this right could be established by judicial decision would certainly be treating a further deviation from strict Hindu Law of a somewhat startling character. The mere fact that a Hindu widow cannot adopt if her husband leaves a will, which would take effect at his death, containing a prohibition against his widow adopting, would appear to be sufficient to show that the right was not inherent in her status as a widow.

[29] If Yadao s case A.I.R. 1922 P.C. 216 had come before this Court, the plaintiff s adoption would have been held valid without any reference to the decisions in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) being necessary : Mallappa v. Hanmappa [1920] 44 Bom. 297 [LQ/BomHC/1919/100] . It is possible, however, that if the same question arose in another case, the judges might from the opinion that they were bound to follow the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216, and it is, therefore, expedient that the following question should be referred to a Full Bench:

Has the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) been overruled by the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216, so that this Court is bound to hold that the widow of a deceased co-parcener in this Presidency can validly adopt under her own inherent right without the authority of her husband, or th.3 consent of her father-in-law, or the consent of the surviving co-parceners of her husband, unless her husband has expressly or by implication prohibited her from adopting

[30] If Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is still good law, the appeal must fail.

Coyajee, J.

[31] In my opinion, if the decision of a Full Beach of this Court in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is not overruled by higher authority, this appeal must fail. (After stating facts His Lordship said.) In Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) a Full Bench of this Court, consisting of Sir Michael Westropp, Chief Justice, and Melvill and Kemball, JJ., held that, in the Maratha country, a Hindu widow who has not her husband s estate vested in her, and whose husband was not separated at the time of his death, was not competent to adopt a son to her husband without his authority or the consent of his kindred. It is, however, contended by the learned pleader for the appellant (plaintiff) that that decision has been disapproved by the Privy Council in Yadao v. Namdeo A.I.R. 1922 P.C. 216 and must be regarded as having been overruled.

[32] The facts of Yadao s case A.I.R. 1922 P.C. 216 need to be stated. One Pundlik died childless in 1905, leaving his widows, Champabai and anapurnabai, and also his first cousin Namdeo, surviving him. On March 31, 1905, Champabai, with the concurrence of her co-widow, adopted Namdeo s son Pandurang, On April 23, 1905 Namdeo executed a deed of adoption which is set out in their Lordships judgment. Pandurang died in childhood in 1907. Thereafter, in 1908, Champabai adopted Yadao without having obtained the consent of any other member of the family. Yadao then brought a suit claiming, as the adopted son of Pundlik, to recover property from Namdeo who disputed the adoption and claimed to retain property as the surviving member of the joint Hindu family. The trial Court passed a decree holding that the adoption was valid; it was reversed by the Court of the Judicial Commissioner on the ground that the agreement made at the time of Pandurang s adoption did not evidence any severance of interest, and that, therefore, Champabai could not adopt without the consent of Namdeo. On appeal to the Privy Council it was contended on behalf of Yadao that the limitation sought to be imposed on the widow s power, namely, that it could only be exercised when the estate was separate and vested in the widow, rested solely on the judgment in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) : the limitation there proposed was not supported by any text or commentator and was rejected by the Board in Pratapsing v. Agarsingji [1919] 46 I.A. 97 ; but, if the widow s power depended upon the estate not being joint, then, upon the evidence, the estate WJ,S not joint at the time when Yadao was adopted. Their Lordships found as a fact and held in law that, on the date of the deed of April 23, 1905, Namdeo and his son Eambhau had separated from Pandurang, and had ceased to be members with Pandurang of the joint family, although, no partition of the family property had been effected ; and they upheld the adoption. On those facts, this Court, consistently with the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), would have arrived at the same conclusion. I would refer to Mallappa v. Hanmappa [1920] 44 Bom. 297, [LQ/BomHC/1919/100] where the facts bear a close similarity to those in Yadao s case A.I.R. 1922 P.C. 216. The Privy Council, however, proceeded to examine the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and observed (pp. 616, 617):

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 unseparated 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. It has, however, been held by the Board in Pratapsing Shinning v. Agarslnjl Baialngji [1919] 46 I.A. 97 which was a case from the Ahmedabad District of the Presidency of Bombay, that : "The right of the widow to make an adoption is not dependant on her inheriting as a Hindu female owner her husband s estate. She can exercise the power, so long as it is not exhausted or extinguished, even though the property was not vested in her." The Board was not then dealing with a case in which the deceased husband had expressly or impliedly prohibited his wife from making any adoption.

[33] The decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has hitherto been accepted and acted upon in this Presidency. With the vie"v expressed by the Full Bench of this Court, I respectfully agree, and would give effect to it unless it was clearly overruled by higher authority. There is a difference of opinion between the several schools of Hindu Law as to the power of a woman to adopt. All of them accept as authoritative the text of Vasistha which says : "Nor let a woman give or accept a son unless with the assent of her lord." In Collector of Madura v. Moottoo Ramalinga Sathupathy [1868] 10 W.R. 17 their Lordships explain the said difference and say (p. 436 of 12 M.I.A.).

Thus upon a careful review of all those Writers, it appears that the difference relates rather to what shall be taken to constitute, in cases of necessity, evidence of authority from the husband. The duty, therefore, of a European Judge who is under the obligation to administer Hindu Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular School which governs the district with which ha has to deal and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.

[34] In Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) the learned Judges expressed the opinion that the doctrine which they laid down was a deviation from ordinary Hindu Law, and they were not disposed to carry the deviation further than it had been already eatablished by precedents. They referred to and quoted the following passage from the judgment of the Privy Council in Sri Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69 (p. 193):

[35] It may be the duty of a Court of justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption; and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property and it may be in the case of collateral succession as in the present instance, the rights of parties in actual possession-dependent on the caprice of a woman subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Court to keep the power strictly within the limits which the law has assigned to it.

[36] The question, whether a widow in a joint Hindu family has power to adopt a son so as to introduce into the family a co-parcener without any authority from her husband and irrespective of the assent of the other members of the coparcenary is one which demands careful consideration.

[37] Having regard to the observations of their Lordships in their judgment in Yadao v. Namdeo A.I.R. 1922 P.C. 216 I agree that the question formulated by my Lord the Chief Justice should be considered by a Pull Bench.

Macleod, C.J.

[38] I have had the privilege of reading the very exhaustive judgments of my Hindu colleagues, Shah and Madgavkar JJ., and agreeing with them as I do, there is no occasion for me to add much to my referring judgment. In Yadao v. Namdeo A.I.R. 1922 P.C. 216 the fact that the lower appellate Court had found that Pandurang died as a member of the joint family made it necessary for the appellant s counsel to refer to the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and to argue that, even if Pandurang died joint, Champabai was entitled to adopt again to her husband. But once, it was held by the Privy Council that Pandurang separated at the time of his adoption, the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was no obstacle to the success of the appellant, and the power of a Hindu widow in a joint family to adopt was no longer in issue. The appellant asks us to hold that it has been definitely decided by the Privy Council that such a widow, according to the principles of Hindu Law prevailing in the Southern Maratha country, has an absolute right to adopt in the absence of any prohibition by her husband. It may be that much of the reasoning in the judgment in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) which was relied upon during the argument before their Lordships in Yadao v. Namdeo A.I.R. 1922 P.C. 216 as supporting the proposition that the adoption of Yadao was invalid, was held to be unsound. But it cannot be implied from that, that their Lordships laid down a principle which was not applicable to the facts of the case before them, that, under the Hindu law prevailing in the Maratha country, a Hindu widow in a joint family has unrestricted powers of adoption, if not prohibited by her husband. I am fully aware of the responsibility attaching to us to observe the injunction laid upon the Courts in India by their Lordships remarks in Kuar Mata Prasad v. Kuar Nageshar Sohai against questioning any principle enunciated by the Board, but, at the same time, the right is conceded to the Courts in India to examine the facts of any case before them to see whether and how far the principle, on which stress is laid, applies to the facts of the particular case. But it is also necessary to examine the circumstances in which those remarks were made. One Kuar Narindra Bahadur died on June 18, 1905, leaving a widow Jagrani Kuar. Shortly after his death, the widow propounded a Will alleged to have been executed by her husband giving her power to adopt a son. In 1906 one Baja Durga Prasad, claiming as a reversioner of Narindra Bahadur, filed a suit against the widow for a declaration that the Will was a forgery and that he was entitled to the estate by virtue of his reversionary right. The suit went to the Privy Council when their Lordships held that the Will had been proved and the plaintiff s suit was dismissed. Jagrani then adopted a son.

[39] In 1918 one Mata Prased, also claiming as a reversioner, and his assignee filed a suit claiming inter alia a declaration that the Will under which Jagrani had adopted a son was false and that the adoption was invalid.

[40] On a plea of res judicata being raised, the Subordinate Judge refused to be bound by the decision of the Privy Council in Venkatanarayana Pillai v. Subbammal [1915] 38 Mad. 406, to the effect that, in a suit by the next presumptive reversioner to set aside an adoption or an alienation by a Hindu widow, the plaintiff sues in a representative capacity and the result of the suit, favourable or otherwise, affects the reversioners as a body. The Subordinate Judge, therefore, considered that he was entitled to entertain the question regarding the genuineness of the Will against the previous decision of the Privy Council and held that the Will was not proved. The course adopted by the Subordinate Judge was said by their Lordships to be unprecedented and irregular, and it was with special reference to the conduct of the Subordinate Judge that their Lordships at the end of their judgments made the remarks I have already set out.

[41] If it is contended that their Lordships in Yadao v. Namdeo A.I.R. 1922 P.C. 216, enunciated, as a general principle of the Hindu Law prevailing in the Maratha country of this Presidency, that any Hindu widow has an inherent right to adopt, then, with all respect, I cannot concede that their Lordships judgment can he read as having that effect especially having regard to their Lordships judgments in the Ramnad case [1868] 10 W.R. 17, and in Sri Baghunadha v. Sri Brozo Krishore [1876] 1 Mad. 69 and the admitted power of the husband to prohibit his widow from adopting. Bather, I should be inclined to think that their Lordships only meant that the right to adopt was the natural concomitant of widowhood amongst Hindus, subject to the restrictions which were imposed varying according to various Schools of Hindu Law, with regard to that right becoming effective. I do not think we should consider that their Lordships, without a review of the Hindu texts and their own decisions, would have gone so far as to make a complete departure from them and lay down a principle so entirely subversive of the spirit and the principles of Hindu Law as hitherto recognized in this Presidency. As their Lordships have remarked, a state of union is the natural state of a Hindu family. All the Schools accept as authoritative the text of Vasishtha which says : "Nor let a woman give or accept a son unless with the assent of her lord." See the Reamnad case [1868] 10 W.R. 17, (p. 435). The basis, therefore, of a woman s right to adopt is the consent of her husband, and if in this Presidency a woman has less restricted powers of adoption than in other parts of India, it is due only to the wider construction placed upon the texts by the Courts and not to the creation by judicial decision of an entirely new basis. In my opinion, their Lordships have not decided by their judgment in Yadao v. Namdeo A.I.R. 1922 P.C. 216 that a widow in a Hindu joint family can, in the absence of any directions by her husband, adopt without the consent of her husband s coparceners, and the decision of the Pull Bench of this Court in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), has not been overruled.

Shah, J.

[42] The question referred to the Pull Bench is in these terms:

Has the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), been over ruled by the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216, so that this Court is bound to hold that the widow of a deceased coparcener in this Presidency can validly adopt under her own inherent right, without the authority of her husband, or the consent of her father-in-law, or the consent of the surviving coparceners of her husband, unless the husband has expressly or by implication prohibited her from adopting

[43] The facts of the case, which have given rise to this question, have been stated in the referring judgments. Ex hypothesi we are dealing with a case in which the deceased coparcener died in union, and in which at the time of the adoption the property of the family was vested in the surviving members by survivorship, and in which the adoption was effected without the consent of the coparceners surviving at the date of the adoption in whom the property was vested. I wish to make it clear that we are not concerned on this reference with the particular fact that in this case the adoption of the plaintiff would be with the consent of the natural father, who is one of the surviving coparceners.

[44] Before proceeding to deal with the question, I may state that we are bound by any decision of the Privy Council and to give effect to it. But, apart from the decision, if there are observations not necessary for the decision of the case, we are not relieved from the obligation of considering how far these observations can be and should be given effect to on the facts of a particular case.

[45] In the recent case of Kuar Mata Prasad v. Kuar Nageshar Sahai , their Lordships have pointed out

that it is not open to the Courts in India to question any principle enunciated by this Board although they have a right of examining the facts of any case before them to sea whether and how far the principle on which stress is laid applies to the facts of the particular case.

45. At the same time, it is clear that a case is an authority for what it decides and not for what may appear to follow logically therefrom. The following observations of the Lord Chancellor in Quinn v. Leatham [1901] A.C. 495, are useful (p.506):

There are two observations of a general character which I wish to make and one is to repeat what I have vary often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides, I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.

[46] The facts in Ramji v. Ghamau A.I.R. 1922 Bom. 347, [LQ/BomHC/1922/94] were briefly these:

Narayan and Jivaji were two Hindu brothers undivided in estate. Narayan died first leaving a widow named Kondai. Jivaji died next leaving two sons and a widow, named Ghamau.

46. Kondai requested Ghamau to give to her one of Jivaji s sons in adoption, and, Ghamau having refused to do so, adopted Ramji as son to Narayan and herself, without the consent of either of the two sons of Jivaji or his widow Ghamau. On the death of Kondai and the two sons of Jivaji, the plaintiff Ramji sued Ghamau, widow of Jivaji. Ghamau claimed the property as heir of her last surviving aon. The validity of the adoption of Ramji was in queation. It was admitted that Kondai had not received from her husband Narayan any permission or direction to adopt a son.

[47] The learned Judges (Melvill and Kemball, JJ.) referred the question to a Pull Bench having regard to the observations of their Lordships of the Privy Council in Sri Raghunadha v. Sri Brozo Kishore [1876] 1 Mad. 69.

[48] The Full Bench consisting of Westropp C.J., and Melvill and Kemball JJ., held the adoption of Ramji by Kondai to be invalid, as Kondai was not authorized by her husband to adopt, nor did she hold any estate in the property or interest beyond her right to maintenance, nor did she obtain the consent of the manager or other members of the undivided family to which the deceased husband belonged.

[49] Thus, on the facts of the case, it is clear that the husband of the adopting widow had died in union, that, at the time of the adoption in question, the widow had no estate vested in her and no interest beyond the right of maintenance, and that she had not obtained the consent of the surviving members of the undivided family at the time of the adoption. The fact that at the date of the suit the surviving members had died and the estate was vested in Ghamau as an heir to her last surviving son could not and was not supposed to affect the question and, in any case, it was admitted that Ghamau had never consented to the adoption.

[50] The facts in Yadao v. Namdeo A.I.R. 1922 P.C. 216 are important for our present purposes. I prefer to take the statement thereof from the judgment of their Lordships as far as possible (pp. 517, 518, 519):

The following short pedigree shows the position of the parties : (see page 437)

[51] At the time of his death Pundlik was a member of a joint Hindu family, which consisted of himself, his cousin Namdeo, and Namdeo s two sons Pandurang and Bambhau. The property mentioned in the schedule to the decree of the trial Judge, was the property of that joint family. Thu parties to the suit are Hindus to whom the Hindu law applicable to Hindus of the Mahratta country of the Presidency of Bombay applies, and the question upon which the result of this appeal depends is whether Mt, Champabai had, under circumstances which later will be mentioned in some detail, power validly to adopt the plaintiff as a son to her deceased husband Pundlik.

[52] Pundlik died childless in January, 1905, leaving his two wives, Mussamat Champabai and Mussamat Annapurnabai, surviving him, Mussamat Champabai was the senior wife, and she, with the concurrence of Mussamat Annapurnabai adopted in 1905 as a son to her deceased husband Pandurang, who was one of the two sons of Namdeo, the defendant. The validity of that adoption is not disputed. Pandurang whose adopted name was Vithalrao, died in childhood and unmarried in 1907, and Mussamt Champabai in December, 1908, in fact adopted to her deceased husband the plaintiff without having obtained the consent of anyone, except the consent of the plaintiff s natural father, who had given him to her to be adopted by her to her deceased husband. Namdeo had refused to give his consent to the adoption, and his contention was and is that Mussamat Champabai had, under the Hindu Law which was applicable to their family no power as a widow to make the adoption, and also that any such adoption by her had been prohibited by Pundlik. The trial Judge came to the conclusion that after the adoption of Pandurang the joint family had separated, and - that afterwards, when the contingency for a second adoption arose by reason of Pandurang s death, Mussamat Champabai could validly adopt the plaintiff without the consent of Namdeo who was then separate, and made the preliminary decree for partition. The learned Judges of the Court of the Judicial Commissioner came to the conclusion that there had been no separation of the joint Hindu family; that Pundlik intended that Pandurang only should be adopted, and had given no general permission as regards the adoption of a son; that on Pandurang death Namdeo and his son Rambhau became by survivorship sole owners of the joint family estate; and that Mussamat Champabai could not under such circumstances make a valid adoption of the plaintiff without having obtained the sanction of Namdeo; and, holding that the adoption was invalid, they, by their decree, dismissed the suit. Prom that decree of the Court of the Judicial Commissioner this appeal has been brought.

[53] Their Lordships then proceed to consider the facts and on a consideration of the deed, dated April 23, 1905, relating to Pandurang s adoption

[54] Their Lordships find as a fact and hold in law that on the date of that deed Namdeo and his son Rambhau had separated from Pandurang, and had ceased to be members with Pandurang of the joint family, although no partition of the family property had been effected (p. 521).

[55] The circumstance that it was common ground that the adoption of Pandurang was a valid adoption is again referred to. Their Lordships point out that Champabai had the authority of her husband Pundlik, if she chose to exercise it, to adopt to him Pandurang. She acted upon that authority in 1905. Then their Lordships deal with the point as to whether she was prohibited by the husband from adopting any boy other than Pandurang (p. 523):

The conclusion which their Lordships draw from the evidence is that Pundlik intended if he adopted any boy as his son, to adopt Pandurang, and if his statements can be construed as a direction to his wife, that direction was that she should adopt Pandurang, and that he gave no direction as to what should be done if Pandurang should be unavailable or should die after he was adopted.

[56] Then the question for consideration is thus stated (p. 523):

Under these circumstances and Pandurang having died in childhood and unmarried, it is necessary to consider what power, if any, Mussamat Ghampabai had under the Hindu law applicable in the Mahratta country of the Presidency of Bombay to adopt the plaintiff as a son to her deceased husband.

[57] Then after referring to the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) their Lordships refer to the point for their decision in these terms (p. 524):

In the present case Pundlik had not separated; he had died a member of a joint Hindu family, and the estate which was vested in Mt. Champabai at the time when she adopted the plaintiff as a son to her husband was not the interest which Pundlik had in the joint family property, but was the estate which had vested in Pandurang on the separation of the joint family.

[58] These facts clearly show that the question in the case was whether the adoption of Yadao by Champabai, after Pandurang had become a separate member of the family, and after the estate of Pandurang had vested in her on Pandurang s death, was valid. This is essentially a different question from that involved in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). For instance, if Pandurang s adoption had been made without the authority of Pundlik, or in the absence of such authority without the consent of his surviving coparceners, and if Pandurang s adoption had been in dispute, the question that arose in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) would have arisen. But that adoption was not in dispute. It was made with the authority of Pundlik, and with the consent of Namdeo. The adoption in dispute was the adoption of Yadao under circumstances found by their Lordships. If their Lordships had found that Pandurang was not separated from the other members of the family, and if Ghampabai had adopted Yadao, without reference to Namdeo and his son Rambhau, the question involved in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) might have arisen, though under some what different circumstances. But the Lordships differed from the view taken by the Court of appeal in India, and, agreeing with the trial Court held that Namdeo and his son Rambhau had separated from Pandurang and had ceased to be members with Pandurang of the joint family, though no partition of the family property had been effected. Thus, the question that arose for decision and was decided was as to the validity of Yadao s adoption under the circumstances already indicated.

[59] It was, however, contended in that case that the decisions in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and Dinkar Sitaram Prabhu v. Ganesh Shivram Prabhu [1881] 6 Bom. 505 (F.B.) were wrong in law, and their Lordships examined the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). It would appear from the report of the arguments for the respondents at p. 516, that it was contended that in any case there was no doubt that Pundlik died joint, and if at his death his widow had not the power to adopt without his authority the fact of a subsequent separation could not give her authority, and Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was relied upon as establishing that the widow s power to adopt without her husband s authority was limited to cases in which she succeeded her husband as heir. With reference to the arguments before their Lordships Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has been examined by their Lordships. But the observations must be read in the light of, and with reference to, the facts of the case and the point for consideration.

[60] The question whether the widow of a deceased coparcener in this Presidency could adopt, in the absence of any express authority from her husband, without the consent of her father-in-law as representing the family, or the consent of the surviving coparceners in whom the property would be vested by survivorship on the death of the husband, did not arise in the case. The question in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was really that question. Speaking with the utmost respect, it is difficult to hold that the question above stated has been decided by their Lordships in Yadao v. Namdeo A.I.R. 1922 P.C. 216 or that Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has been overruled so far as it bears on that question. No doubt, to the extent to which Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) would be in conflict, if at all with the view taken by their Lordships as to the validity of Yadao s adoption, it must be taken to have been overruled. But beyond that the examination of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) would not be necessary for the decision of the case before their Lordships, and it cannot be assumed that their Lordships, by implication, decided that the widow of a deceased coparcener in an undivided family in the absence of any express authority from her husband, could adopt without the consent of the surviving coparceners, so as to create an interest in property vested in them exclusively by survivorship. Indeed, if the question of the validity of the adoption of Yadao had arisen in this Presidency, quite consistently with Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) this Court could have, and would have, held that the adoption was valid as was done in Mallappa v. Hanmqppa [1920] 44 Bom. 297 [LQ/BomHC/1919/100] . Between the facts of that case and those of Yadao v. Namdeo A.I.R. 1922 P.C. 216 there is no essential difference. In that case, the deceased coparcener left a natural son, and in Yadao v. Namdeo A.I.R. 1922 P.C. 216 Pandurang was adopted. But the subsequent adoptions in both cases were under similar circumstances.

[61] I am, therefore, humbly of opinion that Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is not overruled so as to make it necessary for us to hold that the widow of a deceased coparcener can adopt, in virtue of her inherent right, without the consent of the father-in-law as representing the family of the surviving coparceners.

[62] But, as the ratio decidendi of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has been examined in Yadao v. Namdeo A.I.R. 1922 P.C. 216, and as there are observations of their Lordships disapproving of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) generally, it is necessary for us to reconsider the point involved in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) in the light of the observations of their Lordships in Yadao v. Namdeo A.I.R. 1922 P.C. 216 though the point which has arisen in this case, and which arose in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), has not been decided in Yadao v. Namdeo A.I.R. 1922 P.C. 216. The observations must be taken to have been made with reference to the facts and to the point for decision in the case before their Lordships. It cannot be assumed as to how their Lordships would have applied the principle contained in these observations to a different set of facts such as we have in this case. Before Yadao v. Namdeo A.I.R. 1922 P.C. 216 was decided, it was taken as settled law in this Presidency that the widow of a deceased coparcener could not adopt, in the absence of an authority from her husband, without the consent of the surviving coparceners. In Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) it was so decided ; and, even before that, there is no reported case in which such an adoption was made and acquiesced in by the parties concerned or held to be valid after contest. The learned pleaders, who have argued this reference, have not been able to draw our attention to any such case. In Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181, which was decided in 1868, the question did not arise for consideration. The deceased was not a member of a joint family at the time of his death in that case, and the effect of his being a member of a joint family, upon the power of the widow to adopt, was not adverted to and could not be taken to have been decided. In fact, the question was as to whether a senior widow was competent to adopt, if the junior widow did not concur in the adoption. The conclusion that was reached was expressed in general terms; but the general terms would have to be read with reference to the point that was under consideration. Before the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216 that decision was never understood in this Court to apply to the case of a widow of a deceased coparcener in an undivided family. This appears clearly from the observations of Melvill, J., in Rupchand Hindumal v. Rakhmabai [1871] 8 B.H.C.A.C. 114 which was decided in 187

1. In that case the widow of a deceased brother adopted after the death of the surviving brother and after the estate had vested in the widow of the surviving brother. It was argued, on the authority of Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 that the adoption, without the consent of the widow in whom the estate had vested, would be valid.

[63] Melvill, J. dealt with that point in these terms (p. 118):

In Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 it was certainly laid down in the broadest terms that in the Maratha country a Hindu widow may without consent of her husband s 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. But the Judges by whom that case was decided were not dealing with an adoption which would have the effect of divesting an estate vested in a relative other than a widow; nor in any of the decided cases on which they relied was the validity of such an adoption in issue. It does not appear to me that the authorities quoted would be sufficient to support the validity of an adoption working such manifest injustice.

[64] Then, after referring to the passage in Collector of Madura v. Moottoo Ramalinga Sathupathy [1868] 10 W.R. 17, which has been also referred to in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 Mr. Justice Melvill makes the following observations (p. 119):

[65] In other words, when the estate is vested in the widow, she may adopt without the consent of reversioners; but when the estate is vested in persons other than the widow, and the immediate effect of an adoption would be to defeat the interest of those persons, then justice requires that their consent should be obtained. This proposition seems very reasonable and just; and it is based upon authorities which, though not regarded with so much respect here as in the Dravida country, are not without weight in this Presidency. The decision in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181, and the authorities on which it is based, may be accepted without hesitation as showing that in the Maratha country a widow in whom the estate is vested may show by other evidence than the assent of a responsible kinsman that (to use the words adopted by the learned Judges from the decision of the Privy Council above referred to) the act of adoption was done by her in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive. But where the estate is vested in another than the widow. I should be disposed to hold that justice would require us to follow the opinion of the Privy Council as to the necessity of the assent of the person whose interest would be defeated by the adoption. It has not escaped me that in referring to the remark of the Privy Council, Couch, C.J., says (p. 193):

[66] The interest of the younger of two widows cannot, we think, be regarded in the same light as that of a member of an undivided family, and probably their Lordships would not consider the remark applicable in cases where, by the law which governs them, no consent of kinsmen is required.

[67] I, too, think that their Lordships would probably not consider their remark applicable in the particular case of the two widows which the Chief Justice was considering : for, as I have remarked, that was an exceptional case, in which an argument founded on injustice could not be maintained. But in cases in which a deviation from the opinion expressed by the Judicial Committee would work manifest injustice, I am disposed to think that their Lordships would consider their remark applicable.

[68] Then the Court considered the question of the consent of the defendant. Kemball, J., concurred in this reading of Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 18

1. I have referred to these observations as showing how Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 was understood by this Court soon after it was decided by Judges of this Court, and as showing that not a single one of the earlier cases referred to n Rakhmabai s case [1868] 5 B.H.C.R.A.C. 181 involved the question of an adoption which would have the effect of divesting an estate vested in a relative other than the widow. I respectfully desire to add that I have examined these earlier cases referred to in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 and the observations of Melvill, J., appear to me to be fully justified.

[69] Though the decision in Rupchand Hindumal v. Rakhmabai [1871] 8 B.H.C.A.C. 114 was ultimately based on the finding that the widow in whom the estate was vested had consented to the adoption, the observations above referred to related to a point which was argued and decided.

[70] I need not refer to the observations of Westropp, J., in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1, as it was decided in 1866 before Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181, though it may be, as pointed out by their Lordships in Yadao v. Namdeo A.I.R. 1922 P.C. 216 that the judgment was probably written after the decision in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 18

1. I have tried to get the original judgment in this appeal in the hope that it might throw some light on the question as to when it was written, but the only record of that appeal now left is the decree. Rrom the note put up by the office and endorsed by the Registrar, it appears that the judgment has been destroyed (apparently by mistake) along with other old papers of the appeal in May 1921 under the rules framed under the. Destruction of Records Act (V of 1917). This mistake is unfortunate nor has the Registrar been able to get any copy of the judgment made about that time for the purpose of the report. Anyhow the fact is that we cannot get any further materials from the records which can throw any light on the question as to when the judgment was actually written by Westropp, J., in Bayabai s case [1866] 7 B.H.C.R. App. .

[71] But, there is no such difficulty with regard to the observations of Westropp, C.J., in Narayan Babaji v. Nana Manohar [1870] 7 B.H.C.A.C. 15

3. That case was decided by Westropp, C.J., and Gibbs, J., in 1870. The point in that case was as to the right of the wife to adopt during the life time of the husband. It is, no doubt, a totally different point from that involved in Yadao v. Namdeo A.I.R. 1922 P.C. 216 or Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). But the observations at pp. 172 and 173 of the report relating to the necessity of express or implied assent of the husband to validate an adoption by the widow, based upon the observations in Collector of Madura v. Moottoo Ramalinga Sathupathy [1868] 10 W.R. 17, show that apparently the view taken by the learned Judges in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 was understood by Westropp, C.J., as being in consonance with that view. The decision in Rupchand Hindumal v. Rahhmabai [1871] 8 B.H.C.A.C. 114 was shortly after this case. Thereafter, until the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), there is no case in which Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 was understood as affirming the right of the widow to adopt without any reference to the rights of the parties other than the widow in whom the estate might be vested on the death of the husband. In deciding Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) the learned Judges followed the observations in Rupchand v. Rakhmabai [1871] 8 B.H.C.A.C. 114; and in the two Privy Council cases. Collector of Madura v. Moottoo Ramalinga Sathupathy (otherwise known as the Ramnad case) [1868] 10 W.R. 17, and Sri Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69, Westropp, C.J., observes in his judgment as follows (p. 503):

[72] Assigning to the Maratha deviation from ordinary Hindu Law the limit which we have above suggested, viz., that the widow of a Hindu, dying without leaving male issue, may if her husband were separated from his family in estate (or, in other words, when she is his heir), adopt without any express authority from him, (if he have not prohibited her from so doing or otherwise implied his intention that she should not adopt) ; and without the consent of his relatives, and believing that there is not any sufficient text or precedent for conceding any wider range to that deviation, and concurring in the remarks of Melvill, J., in Rupchand Hindumal v. Rakhmabai [1871] 8 B.H.C.A.C. 114, we feel ourselves at liberty to adopt the following passages from the judgment of the Privy Council in Sri Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69 in which, after approving of the principle recognized by the Travancore case Ramaswami v, Bhagati [1873] 8 Mad. Jur. 58, viz., that the requisite authority is, in the case of an undivided family, to be sought within that family, their Lordships say : The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate, but in food and worship ; therefore not only the concerns of the joint property, but whatever relates to their commensality and their religious duties and observances, must be regulated by its members, or by the manager to whom they have expressly or by implication delegated the task of regulation. The Hindu wife, upon her marriage, passes into and becomes a member of that family. It is upon that family that, as a widow, she has her claim for maintenance.... It is in the members of that family that she must presumably find such counselors and protectors as the law makes requisite for her. There seem to be strong reasons against the conclusion that for such a purpose as that under consideration she can at her will travel out of that undivided family and obtain the authorization required from a separated and remote kinsman of her husband (1); and again : It may be the duty of a Court of justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption; and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property - and it may be in the case of collateral succession, as in the present instance the rights of parties in actual possession dependent on the caprice of a woman, subject to ail the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Court to keep the power strictly within the limits which the law has assigned to it.

[73] This decision was followed on the same day in Dinkar Sitaram Prabhu v. Ganesh Shivram Prabhu [1881] 6 Bom. 505 (F.B.). Since then the basis of the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has been followed in various cases.

[74] For instance, as regards the necessity and sufficiency of the father-in-law s consent in an undivided family, the point was considered in Vithoba v. Bapu [1890] 15 Bom. 110 by Birdwood and Candy, JJ. Birdwood, J., based his decision upon the observations in the Ramnad case [1868] 10 W.R. 17 (see page 115); and Candy, J., examined the decided cases in detail in his judgment. Subsequently, in Lakshmibai v. Vishnu Vasudev [1905] 29 Bom. 410, it was held by Jenkins, C.J., and Batty, J., that the consent of the father-in-law would not be operative after his death. The judgments, in both these cases, are useful as throwing light on the question as to how the right of the widow to adopt in an undivided family has been accepted, subject to the limitation as to the necessity of the consent of the father-in-law as representing the family.

[75] Then, we have a similar limitation recognized in another class of cases of which Rupchand v. Rakhmabai [1871] 8 B.H.C.A.C. 114 is a type. I may refer to the cases of Chandra v. Gojarabai [1890] 14 Bom. 463 decided by Sargent, C.J., and Telang, J., and of Tejrani v. Sarupchand Chhaganbhai [1919] 44 Bom. 483 decided by Macleod, C.J., and Heaton, J. The case of Chandra v. Gojarabai [1890] 14 Bom. 463 was a stronger case inasmuch as the authority of the deceased husband was pleaded; but it was held to be ineffective after the estate had vested in the widow of the last surviving coparcener. Then, up to the time Yadao v. Namdeo A.I.R. 1922 P.C. 216 was decided, Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was accepted in this Presidency as laying down a correct rule as to the limitation of the right of the widow to adopt in an undivided family, and its ratio decidendi was followed in other cases which I have mentioned. It is not without significance, that, in Yadao v. Namdeo A.I.R. 1922 P.C. 216 their Lordships refer at page 527 of the report to the observations in Sri Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69 referred to in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and hold them to be inapplicable to the case before them in the following terms:

That case came from Travancore, where the Hindu Law as interpreted in the Province of Madras as to the power of Hindu widows to adopt, who have not had the authority of their husbands to adopt a son to him, is much more restricted than it is in the Mahratta country of the Presidency of Bombay and in Gujarat, where it is the law that the widow of a separated husband, who has not prohibited her from making any adoption to him, can validly adopt a son to him without the consent of anyone except that of the parent of the boy. In the present case, owing to the family having separated, the rights of Namdeo and his son Ramhhau were merely the rights of collaterals in unpartitioned property.

[76] Their Lordships did not say that the observations were altogether inapplicable to the Presidency of Bombay whether the family was divided or undivided, but held them to be inapplicable to the particular case, on the ground that the widow of a separated Hindu in the Maratha country had a right to adopt without the consent of any one except the parent of the boy, and that, the family having separated, the rights of Namdeo and Rambhau were merely the rights of collaterals in unpartitioned property.

[77] Thus, we have the broad fact that certain observations in the Ramnad case [1868] 10 W.R. 17 and in Sri Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69 have been held to apply to this Presidency, practically since the decision in Rupchand v. Rakhmabai [1871] 8 B.H.C.A.C. 114, and in terms since the decision of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) to the case of an adoption by the widow of a deceased coparcener in an undivided family, without the consent of the coparceners in whom the property is vested at the time of the adoption or of the father-in-law, if alive, at the time. Since the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) it has been accepted as a settled proposition in this Presidency that, in the case of a Hindu dying in union with his coparceners, in the absence of an express authority from him the adoption by his widow would not be valid, unless made with the consent of those whose rights in the property would be affected (i.e., of. the surviving coparceners or the father-in-law as representing the family). Neither from the observations in the earlier decisions of the Privy Council, nor from the proposition above stated, there is any express dissent in Yadao v. Namdeo A.I.R. 1922 P.C. 216 though there are observations disapproving of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and approving of the general conclusion reached in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 18

1. It may be that the proposition in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), that the widows right to adopt in the Maratha country was dependent upon the husband being a separated member, i.e., upon the estate being vested in her as her husband s heir, at the time was somewhat broadly stated. And, in Yadao v. Namdeo A.I.R. 1922 P.C. 216, their Lordships disapprove of that proposition at page 529 of the report. They quote the conclusion reached m Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 and proceed to observe as follows:

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 property 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.

[78] Their Lordships point out that it is not essential that the property should be vested in the widow as her husband s heir at the time of adoption. It may be sufficient, as was the case in Yadao v. Namdeo A.I.R. 1922 P.C. 216 if it is vested in her as heir to her son. They point out that it is not essential that her husband must be a separated member at the time of his death in order that she may have the right to adopt. Even if he dies in union, it is not as if the right is non-existent, and it may be exercised under circumstances such as arose in Yadao v. Namdeo A.I.R. 1922 P.C. 216. But their Lordships do not say that even where the husband dies in union, and where the property goes to the surviving coparceners by survivorship, in the absence of any authority from her husband the widow can adopt without the consent of her father-in-law or those surviving coparceners in whom the property is vested at the time of the adoption. This last proposition is negatived in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and that negation is not disapproved, though the broad statement of the circumstances under which, according to the deviation in this Presidency, the widow of a Hindu can adopt without any express authority from her husband and in the absence of an express or implied prohibition from her husband is disapproved. If the approval of the conclusion reached in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181, and the disapproval of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) be carefully read in the light of the facts of Yadao v. Namdeo A.I.R. 1922 P.C. 216 it helps us materially in determining how far their Lordships meant to disapprove Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.).

[79] As an instance of an adoption by the widow of a Hindu coparcener under express authority of her husband who died in union. I may refer to the case of Bachoo v. Mankorebai [1905] 29 Bom. 51 which went up to the Privy Council, Bachoo v. Mankorebai [1907] 31 Bom. 37 [LQ/BomHC/1906/99]

3. The judgment of the Court of appeal here delivered by Jenkins, C.J., throws a useful light on the point involved in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and also shows how far Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has been acted upon in this Presidency.

[80] It is also important to remember that the part of the proposition accepted in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 relating to the act of adoption by the widow being done by her in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive, was considered and rejected by the Full Bench in Ramchandra v. Mulji Nanabhai [1898] 22 Bom. 558 (F.B.). Parsons and Ranade, JJ., in terms, referred to the right of the widow to adopt, in the absence of express or implied prohibition of the husband, as applicable to a separated Hindu.

[81] As regards the inherent power of the widow in this Presidency to adopt, in the absence of an express or implied prohibition of her husband, it is sufficient to refer to the following passages in the Ramnad case [1868] 10 W.R. 17 where the texts applicable to the Bombay Presidency have been expressly mentioned (pp. 435, 436, 443):

All the Schools accept as authoritative the text of Vasishta, which says, Nor let a woman give or accept a son unless with the assent of her lord. But the Mithila School apparently takes this to mean that the assent of the husband must be given at the time of the adoption, and, therefore, that a widow cannot receive a son in adoption, according to the Dattaca form, at all. The Bengal School interprets the text as requiring an express permission given by the husband in his lifetime, but capable of taking effect after his death, whilst the Muyookha and Koustubha Treatises, which govern the Mahratta School, explain the text away by saying, that it applies only to an adoption made in the husband s lifetime, and is not to be taken to restrict the widow s power to do that which the general law prescribes as beneficial to her husband s soul. Thus upon a careful review of all these writers, it appears, that the difference relates rather to what shall be taken to constitute, in cases of necessity, evidence of authority from the husband, than to the authority to adopt being independent of the husband....

[82] Again, it appears to their Lordships that, inasmuch as the authorities in favour of the widow s power to adopt with the assent of her husband s kinsmen proceed in a great measure upon the assumption that his assent to this meritorious act is to be implied wherever he has not forbidden it, so the power cannot be inferred when a prohibition by the husband either has been directly expressed by him, or can be reasonably deduced from his disposition of his property, or the existence of a direct line competent to the full performance of religious duties, or from other circumstances of his family which afford no plea for a supersession of heirs on the ground of religions obligation to adopt a son in order to complete or fulfil defective religions rites.

[83] As already stated, these passages are referred to in Narayan v. Nana [1870] 7

B.H.C.A.C. 153 by Westropp, C.J., after referring to the various texts applicable to this Presidency, and the observations there clearly go to show that the right of the widow to adopt, as recognized in this Presidency, is not inherent but based upon the implied consent of her husband. Further, it has been throughout accepted in this Presidency that the power of the widow is subject to the express or implied prohibition of her husband. It is in terms so stated in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181, and is accepted in Yadao v. Namdeo A.I.R. 1922 P.C. 216 and this proposition is not challenged.

[84] I do not consider it necessary to refer to the texts, which have been referred to in detail by Westropp, C.J., in Narayan v. Nana [1870] 7 B.H.C.A.C. 153, to indicate the nature of the right. In fact, the texts recognize some limitation upon her right. Further, the adoption is always to the husband. It is difficult to reconcile the theory of the inherent right of the widow in this Presidency to adopt with these basic propositions relating to the law of adoption.

[85] The following extracts from the judgments of Parsons and Ranade, JJ., in the Full Bench case of Ramchandra v. Mulji Nanabhai [1898] 22 Bom. 558 (F.B.), already referred to, are instructive. Parsons, J., says (pp. 565, 566):

We have, therefore, to see how far the law has limited the power of a widow in. a divided family to adopt.... The power of a widow to adopt at all must be ascribed to the fact that her husband has either expressly or impliedly allowed her to adopt. If he has not exercised his right either of prohibition or restriction, then it seems to me to follow necessarily that she is left free and unfettered to exercise her own choice in the matter.

[86] Ranade, J. observes (p. 567):

The widow of a separated householder, who adopts a son to continue the line of her

husband, performs this act under an express or implied authority from her husband,

and presumably her exercise of this right, independently of the wishes of reversionary heirs, must be as free as if the husband himself effected the adoption.

[87] In Lakshmibai Sarasvatibai [1899] 23 Bom. 789, Sir Lawrence Jenkins, C.J., did not decide the point but expressed the inclination of his opinion that in this Presidency the right of the widow to adopt was inherent and not merely delegated, though he reserved to himself the right to reconsider the matter if necessary. There is no reference to the observations in the Ramnad case [1868] 10 W.R. 17, already quoted, in the arguments as reported in that case; nor is there any reference thereto in the arguments or in the judgment of their Lordships in Yadao v. Namdeo A.I.R. 1922 P.C. 216 on this point.

[88] So far as it is necessary to decide this point, as involved in the question, the state of the authorities is distinctly in favour of the view that it is not an inherent but a delegated right.

[89] Their Lordships, as I read the judgment in Yadao v. Namdeo A.I.R. 1922 P.C. 216, have not decided this point. It is hardly likely that, if they were deciding it, they would not refer to the observations in the Ramnad case [1868] 10 W.R. 17 to the contrary. I am humbly of opinion that the right of the widow to adopt is derived from her husband, and that in this Presidency it is exercised by her, in the absence of any express authority from her husband, on the basis of his implied consent; and that is why, when there is not any reasonable scope for the inference as to his implied consent, that she has been held to have no power to adopt. For instance, when the husband disposes of his property in such a way as to indicate that he could not have desired or intended adoption to himself after his death, then he is held to have impliedly prohibited the widow from adopting; see Malgauda Paragauda v. Babaji Dattu [1912] 37 Bom. 107. In Lakshmibai v. Sarasvatibai [1899] 23 Bom. 789, Jenkins, C.J., observed that he was wholly unable to see that the husband, by any disposition of his property or in any other way, had so acted that a prohibition proceeding from him could be implied.

[90] Thus, the view of this Court that the widow of a deceased coparcener in an undivided family in this Presidency cannot adopt without the consent of her father-in-law, if alive, or of the surviving coparcener m whom the property is vested at the time of the adoption, appears to me to be based in its ultimate analysis upon the view that the consent of the husband cannot be implied where property goes to others by survivorship, and that either his express authority or the consent of the coparceners is necessary under such circumstances. This view is further based upon the observations of their Lordships in the two cases to which I have already referred : the Ramnad case [1868] 10 W.R. 17 and Sri Raghunadha v. Sri Brozo Kishoro [1908] 32 Bom. 499 and is practically independent of the consideration whether the right of the widow to adopt is treated as inherent or delegated in this Presidency. In the case of a joint family the deceased coparcener knows before his death that the property will go by survivorship to the surviving coparceners and that the religious rites of the family will be carried on by them. In such a case, there is nothing unreasonable in not implying his consent and in insisting upon an express authority from him to adopt, if he desires any adoption to himself after his death by his widow, or the consent of the surviving coparceners in whom the property is vested at the time of the adoption by the widow, or the consent of the father-in-law as representing the family. That is what the Courts have done so far in such a case; and, in doing so, they have proceeded upon considerations of justice and prudence referred to in the Ramnad case [1868] 10 W.R. 17 and Sri Raghunadha s case [1876] 1 Mad. 69 as being no less applicable to this Presidency than to the Madras Presidency. The case of a separated Hindu stands on a different footing. In his case there is scope fox-implying his consent, and the deviation in the Maratha country-and practically in this Presidency - is carried so far that no consent of his kinsmen is considered necessary. The deviation has not been carried further; and the observations in Yadao v. Namdeo A.I.R. 1922 P.C. 216, if read in the light of the facts of the case, do not appear to me to carry the deviation further so as to obviate the necessity of consent which arises in an undivided family for reasons which are applicable to that state of the family at the time of the adoption. I may add a word with reference to the following observations in Pratapsing Shivsing v. Agarsingji Raisingji [1919] 46 I.A. 97.

[91] The right of the widow to make an adoption is not dependent on her inherting as a Hindu female owner her husband s estate.

[92] This observation has to be read with reference to the facts of the case. The deceased in that case held a jivai estate, and the holder of the Gamph estate, succession to which was regulated by the rule of primogeniture, had the reversion in the absence of any male-lineal heirs of the deceased jivaidar. It was not clear that the estate vested, immediately on the death of the holder of the jivai estate, in the holder who had the ultimate reversion. The remarks of their Lordships, at the close of the judgment, make this abundantly clear.

[93] In any event, it was not the case of an ordinary undivided Hindu family. Thus the remark above referred to, which is quoted in Yadao v. Namdeo A.I.R. 1922 P.C. 216, taken at its best shows that, though it may not-be an essential condition of the widow s power to adopt that she must have-inherited the estate of her" husband as. his heir, it does not follow that limitations on her right to adopt may not arise; from other facts, which were wholly absent in Pratapsing s case [1899] 23 Bom. 789 and which did not exist in Yadao v. Namdeo A.I.R. 1922 P.C. 216. The observation in Pratapsing s case [1919] 46 I.A. 97, above referred to, was read subject to the limitation of the facts of the case in Tejrani v. Sarupchand [1919] 44 Bom. 483, to which I have already referred. In a case similar to, Tejrani s case [1919] 44 Bom. 483 - after the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216, - Crump, J. and I have held that when the estate is vested in the widow of the last surviving coparcener, the widow of the coparcener who died first cannot make a valid adoption so as to divest the estate vested in the other widow : see Shivbasappa v. Nilava A.I.R. 1923 Bom. 17 [LQ/BomHC/1922/145] .

[94] Thus, on a careful consideration of the observations in Yadao v. Namdeo A.I.R. 1922 P.C. 216 as also of the basis of the rule in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), I am of opinion that though Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is overruled so far as it can be held to conflict with the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216, i.e., where the husband died in union, leaving ah express authority to the widow to adopt, and where subsequently the estate came to be vested in the widow as the heir of her son adopted in pursuance of the said authority, on account of a subsequent partition between the son and other coparcener, and where the estate was so: vested in her at the time of the adoption; it is not overruled so far as the main; point involved in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is concerned, viz., that where the husband died in union leaving no express authority to the widow to adopt, the widow cannot adopt without the consent of the surviving coparceners in whom the estate is vested by survivorship at the time of the adoption. In the absence of any decision of the Privy Council to the contrary, I think, we should still follow the rule in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) that, in the absence of an. express authority of her husband, the widow of a Hindu coparcener in an undivided family cannot adopt without the consent of the surviving coparceners, in whom the property is vested by survivorship at the time of the adoption, as it is plainly our duty to give effect to it, if it still appears to us to represent the true limit of the widow s power to adopt in a joint Hindu family in this Presidency. The other view would expose joint families to risks of adoption by widows of deceased coparceners to which, according to the law as I understand it, they are not exposed, to which this High Court has consistently refused to expose them according to its interpretation of Hindu Law, and to which according to the observations in the Ramnad case [1868] 10 W.R. 17 and Sri Raghunadha s case [1876] 1 Mad. 69 they should not be exposed.

[95] I would, therefore, answer the question referred to us in the negative.

[96] I need hardly add that I have considered the observations in Yadao v. Namdeo A.I.R. 1922 P.C. 216 with the utmost respect; and if I have not been able to follow them to their apparently logical conclusion, or if I have held them to be inapplicable to the case of an undivided family under circumstances, such. as we have in this case, or such as existed in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), I have done so under a sense of obligation to give effect to our view, in the absence of any decision of the higher tribunal on the point, particularly as that view has been accepted and acted upon in this Presidency since the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) in 1879, and apparently acquiesced in even prior to it, as the absence of any precedent to the contrary would tend to show, and is based upon the observations of their Lordships of the Privy Council in the earlier cases.

Crump, J.

100. In my opinion, the answer to the question propounded by the Divisional Bench can only be found by a careful consideration of the judgment of the Judicial Committee in Yadao v. Namdeo A.I.R. 1922 P.C. 216. We are not concerned with the question "what is the correct doctrine of the Hindu Law" upon the matter; we are bound to follow the law as expounded by their Lordships of the Privy Council. It is, however, necessary to state briefly what has hitherto been the established doctrine upon the point in this Presidency in order to understand the precise scope of the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216.

10

1. The facts in the case referred are briefly that the husband of the adopting widow died undivided, and his widow, the family still continuing in a state of union, made an adoption without the consent of the coparceners. Those facts bring the case precisely within the ambit of the decisions in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and Dinhar Sitaram Prabhu v. Ganesh Shivram Prabhu [1881] 6 Bom. 505 (F.B.). The rule laid down in those cases had stood since 1879, and it is that in this Presidency a widow, whose husband was not separated at the time of his death, cannot adopt without the consent of her father-in-law, and in his absence her husband s undivided coparceners. Per contra the rule where the husband died divided is equally well settled, and it is that the widow can adopt in two cases only.

Where her husband died without leaving any son.

Where her husband left a son and the son dies leaving his mother as the nearest heir.

10

2. The basic principle is this : that the widow can adopt where she succeeds to the estate as heir. But, in an undivided family, where she has a right to maintenance and no more, she cannot adopt without, the consent of those upon whom she is dependent. It is impossible to escape from the position that the determining factor is whether the estate vests in the widow or not, and that therefore the crucial point of time is, generally speaking, the time of the husband s death. That this is so is plain from the words used by Westropp, C.J., in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.)(p. 503):

The widow of a Hindu, dying without male issue, may, if her husband were separated from his family in estate (or, in other words, when she is his heir), adopt without any express authority from...and without the consent of his relatives.

10

3. The sole question for our decision is how far the rule in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is good law in view of the decision of their Lordships of the Privy Council. It is, in my opinion, beside the mark to observe that the facts in Yadao v. Namdeo A.I.R. 1922 P.C. 216 would not, in view of the decision of this Court in Mallappa v. Hanmappa [1920] 44 Bom. 297 [LQ/BomHC/1919/100] have been held to fall within the ambit of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.); nor can it be argued that on that ground the discussion of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is obiter. What we are bound to do is to examine the judgment in Yadao v. Namdeo A.I.R. 1922 P.C. 216 and to discover what, in the light of hitherto established law, is to be deduced from it; and, if that examination leaves no doubt, to follow the law as expounded by their Lordships of the Privy Council, however much it may conflict with our preconceived ideas, or however much it may appear to be at variance with what we believe to be the feeling of the Hindu community.

104. A brief analysis of the judgment in Yadao v. Namdeo A.I.R. 1922 P.C. 216 thus becomes necessary, and in particular it is most material to ascertain why their Lordships deemed it necessary to discuss the case of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). It is unnecessary to set out the facts in detail. First, it is said that the law applicable to the parties is the law applicable to Hindus of Maratha country of the Presidency of Bombay. Then it is found that the first adoption was valid, and that the first adopted son, Pandurang, became divided before his death. The position, therefore, was that, on Pandurang s death, his mother Champabai was his nearest heir. Their Lordships then say (p. 614):

Under these circumstances, and Pandurang having died in childhood and unmarried, it in necessary to consider what power, if any, Mt. Champabai had under the Hindu Law applicable in the Mahratta country of the Presidency of Bombay to adopt the plaintiff as a son to her deceased husband.

105. It must be noted here that Champabai s husband was not separated at the time of his death. That fact is emphasized over and over again in their Lordships judgment. That, as is pointed out above, was the ratio decidendi In Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and there seems no room for doubt that it was for this reason that their Lordships proceed immediately to an examination of that case. They held that Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was applicable to the facts before them, and it is not possible, in m opinion, to hold that their remarks upon that case are in any sense obiter. It is significant to observe that with reference to Dinkar v. Ganesh [1881] 6 Bom. 505 (F.B.) their Lordships remarks:

The District Judge had held that the consent of relations was unnecessary in the Presidency of Bombay.

106. As has been said, Dinkar v. Ganesh [1881] 6 Bom. 505 (F.B.) was also a case of an undivided family; and it is plain that their Lordships were considering, and did consider, the widow s right to adopt where her husband died undivided. Their Lordships then recognize that the Hindu Law in the Maratha country of the Presidency of Bombay differs widely from the Hindu Law elsewhere as to the powers of widows to adopt to their deceased husbands, and they then cite, apparently with approval, the dictum of Jenkins, C.J., in Lakshmibai v. Sarasvatibai [1899] 23 Bom. 789 to the effect that the widow s right to adopt is inherent and then they remark as follows (pp. 616, 617):

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 unseparated Hindu, or on the question whether the property which was vested in her when she made the adoption was not vested in her as his heir.

107. That statement of the law destroys the basis on which Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) rests. It will be observed that Westropp, C.J., to some extent, founded his judgment on the judgment of the Privy Council in Sri Raghunadha v. Shri Brozo Kishore [1876] 1 Mad. 69, but that foundation is also cut away, for their lordships go on to point out that that case is from Travancore where the right of the widow to adopt is much more restricted. Their Lordships then examine and approve the case of Rukhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 18

1. With reference to that case they say (p. 619):

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 property 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.

108. Such is the substance of decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216, and I find it impossible to hold that the case of Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is not overruled. It seems to me plain that their Lordships of the Privy Council have laid it down as a correct rule of law that the widow of a Hindu in the Maratha country of the Presidency of Bombay has, where there is no prohibition by the deceased husband, an inherent right to adopt which is not subject to any of those limitations which have, hitherto, (erroneously we must now say), been placed upon it. I cannot see that there is anything that is obiter in this authoritative pronouncement, and it is, therefore, unnecessary to consider whether, even so, we should not, as a Subordinate Court, be bound.

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9. I would answer the question propounded in the affirmative.

Madgavkar, J.

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10. On an ordinary question of Hindu Law, in which I had reached the same conclusion as my learned brother Shah, I might content myself with a mere expression of concurrence. The question referred is, however, of great importance, both in itself and in its implications. It concerns the Hindu Law of adoption in the Maratha country, which is so intimately connected with custom; and, as the only member of the Bench from that part of India, I may not exempt myself from stating the reasons for my conclusion.

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1. The question may be divided into two parts. The first part is, whether the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has or has not been overruled by Yadao v. Namdeo A.I.R. 1922 P.C. 216. The second part of the reference is dependent on the answer to the first part and amplifies it.

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2. Though such a question, as the effect of a decision of their Lordships of the Privy Council on a decision of this Court, is not often expressly referred to a Bench, these questions of interpretation have frequently arisen. For instance, in Shrinivas v. Balvant [1913] 37 Bom. 513 it was held that the Full Bench ruling in Shrinivas v. Hanmant [1900] 24 Bom. 260 was not overruled by the decision of the Judicial Committee of the Privy Council in Thakur Thribhuwan Bahadur Singh v. Raja Rameshar Bakhsh Singh [1906] 28 All. 727 and Muhammad Umar Khan v. Muhammad Niazudrdin Khan [1912] 39 Cal. 418; and Chandavarkar, J., even remarked:

Though this is obiter, yet as the definite expression of their Lordships opinion, it is binding upon us.

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3. The question of the full effect of the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216 itself has arisen in several cases, as observed in the reference. For instance, in Bhau v. Narsagouda A.I.R. 1922 Bom. 300 [LQ/BomHC/1921/138] a Hindu, who had himself been given in adoption adopted his natural sister s son, Defendant No,

1. On the death of the Hindu, his widow adopted the plaintiff, and it was argued that the adoption of the sister s son being invalid, the widow s adoption of the plaintiff was valid. It was held that the actual adoption by the husband in his lifetime was an implied prohibition against the widow s adopting another boy during the lifetime of the boy adopted by the husband or at least until the husband s act of adoption was declared to be invalid by a competent Court. Shah, J" at page 408, observed, after referring to Yadao v. Namdeo A.I.R. 1922 P.C. 216" that the power of deviation in the Maratha country could not be

114. extended in favour of the widow in the sense in which the appellant seeks to extend it in this case without deviating from the fundamental basis of the law of adoption.

115. In Dattatraya Bhimrao v. Gangabai A.I.R. 1922 Bom. 321, [LQ/BomHC/1921/149] though, strictly speaking, the question of the validity of the adoption did not arise, and the decision proceeded on a consideration of heir ship among atma handhus, Shah, J., in his remarks observed and foresaw (p. 547):

116. The recent decision of the Privy Council in Yadao v. Namdeo A.I.R. 1922 P.C. 216 was not referred to in the argument, and its effect upon the view accepted by the Pull Bench in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) may require to be considered hereafter.... The principle underlying the rulings in Ramkrishna v. Shamrao [1902] 26 Bom. 526 and Datto Govind v. Pandurang Vinayak [1908] 32 Bom. 499 is not in any way affected by the observations in Yadao v. Namdeo A.I.R. 1922 P.C. 216.

117. The decisions in Yeknaih Narayaii v. Laxmibai A.I.R. 1922 Bom. 347 [LQ/BomHC/1922/94] and in Shivbasappa v. Nilava A.I.R. 1923 Bom. 17 [LQ/BomHC/1922/145] in which Yadao v. Namdeo A.I.R. 1922 P.C. 216 was considered, are summarized in the referring judgment of the learned Chief Justice (p. 790).

118. In questions of interpretation, whether of a document or a judicial decision or a statute, the common question is as to the intention. In the interpretation of statutes, the question to be answered is what the Legislature intended to and did enact; and in questions of judicial decisions, what principle of law the Court intended to lay down and has applied.

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9. To repeat the oft quoted observations of Lord Halsbury in Quinn v. Leathem A.I.R. 1922 P.C. 216 (p. 506):

Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to he expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.... A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.

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20. In G. and C. Kreglinger v. New Patagonia Meat and Cold Storage Co. Limited [1914] A.C. 25, Lord Haldane, who was one of the Board which decided Yadao v. Namdeo A.I.R. 1922 P.C. 216, observed (p. 40):

To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a Court of co-ordinate jurisdiction are more binding in a. system of jurisprudence such as ours than in systems where the paramount authority is that of a code. But when a previous case has not laid down any new principle but has merely decided that a particular get of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent.

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1. These remarks apply with equal force to decisions on Hindu Law, and with greater force, as far as this Court is concerned, to decisions of the Privy Council which are, it goes without saying, binding on us.

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2. Lord Haldane went on to associate himself with the remarks of Jessel, M.R., in In re Hallett s Estate [1879] 13 Ch. D. 609 (p. 712):

The only use of authorities, or decided cases, is the establishment of some principle which the Judge can follow out in deciding the case before him.

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3. Again, in Cornelius v. Phillips [1918] A.C. 199 Lord Haldane remarked (p. 211):

Dicta by Judges, however eminent, ought not to be cited as establishing authoritatively propositions of law unless these dicta really form integral parts of the train of reasoning directed to the real question decided. They may, if they occur merely at large, be valuable for edification, but they are not binding.

124. It follows necessarily, I think, that remarks in a decision of a Court and of Judges, however eminent, which perhaps and at the most impliedly doubt or disapprove without overruling a positive principle laid down in another case, and do not themselves even definitely enunciate, much less apply, another principle instead, which can take the place of the principle doubted or disapproved, may be dicta of the greatest weight which may necessitate reconsideration of the former principle; but they cannot be considered binding or definitely overruling the decision doubted or disapproved or the principle laid down therein.

125. As illustrative of the dangers of construing dicta as a decision of principle, reference may perhaps be made to the remarks of their Lordships of the Privy Council in Rajah Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya [1876-78] 1 Mad. 174 [LQ/MadHC/1964/418] that the Madras High Court, in construing the words of the Privy Council in the Ramnad case [1870] 7 B.H.C.A.C. 153, that the act was done by the widow for the proper and bona fide performance of a religious duty " went beyond the proper scope of the words. They remarked as follows (p. 14):

Their Lordships think it would be very dangerous to introduce into the consideration of these cases of adoption nice questions as to the particular motives operating on the mind of the widow, and that all which this Committee in the former case intended to lay down was, that there should be such proof of assent on the part of the sapindas as should be sufficient to support the inference that the adoption was made by the widow, not from capricious or corrupt motives, or in order to defeat the interest of this or that sapinda, but upon a fair consideration by what may be called a family council, of the expediency of substituting an heir by adoption to the deceased husband.

126. It is, therefore, necessary to define, on the one hand, the precise principle enunciated and applied in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), and on the other in Yadao v. Namdeo A.I.R. 1922 P.C. 216. By principle I understand the rule of law which is applied to the facts admitted or held proved and results in the decision of the relief given or withheld.

127. In Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) the principle laid down was that if a Hindu widow in the Maratha country, whose husband was undivided at the time of his death, and who had not the family estate vested in her, adopted a son to her husband without his authority or the consent of his undivided coparceners, such an adoption conferred no rights to the joint family property on the son so adopted. In other words, a Hindu widow in a joint family can validly adopt only if one of two conditions is fulfilled : either authority, express or implied, by the husband, or the consent of the undivided coparceners. I use the word validly not in the religious sense with which the Courts are not concerned, but in the legal sense in which alone it has hitherto found expression in the Courts, viz., as affecting rights to the joint family property.

128. The Full Bench in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) carefully considered the facts in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 18

1. The principle of the actual decision in the latter case was not overruled, but, on the contrary, re-stated and re-affirmed, viz., that where the husband of a Hindu widow dies separated, and she herself is the heir or she and a junior widow are the heirs, she may adopt without the sanction of the kindred, that is, co-widow or collaterals, so long as the husband had not prohibited that adoption. But the Full Bench declined to apply the dicta of Couch, C.J., in that case Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 where the husband had died separated, to cases such as Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) where the husband had died undivided.

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2

9. As to the consent or sanction of the kindred, held necessary if they are coparceners in an undivided family, needless if they are collaterals in a separated family, nothing more need be said. But, as to the husband s authority, the phrase used in the decision in Ramji s case [1881] 6 Bom. 498 (F.B.), laying down the law for the undivided family, is slightly different from that in the case of the separated husband, being without his authority in the former case, and, in the latter, practically, in the absence of prohibition. I shall revert to the point later, contenting myself here with the observation that this Court has not laid undue stress on the difference, but has, in each case where the question of the husband s authority or prohibition was raised, treated it as a question of fact to be decided on the evidence as to what his wishes really were.

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30. I proceed to consider the principle or principles to be extracted from Yadao v. Namdeo A.I.R. 1922 P.C. 216. The facts are so fully stated in the decision and so fully summarized in the referring judgments as to need no reiteration. It was common ground that Champabai had express authority from her deceased husband Pundlik to adopt his undivided brother Namdeo s elder son Pandurang, if she chose, and t hat her adoption of Pandurang on March 31,1905, was valid. The two issues on which the lower Courts had differed were, firstly, whether the deed of April 23, 1905, between the two widows on the one hand, and Namdeo on the other, was or was not a deed of separation; and, secondly, whether there was or was not a prohibition, express or implied, by Pundlik against adoption of any one but Pandurang, in case the latter was unavailable or died.

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1. On both these issues their Lordships of the Privy Council agreed with the trial Court and held that the deed was a deed of separation in status and that, though there was no express authority, there was no prohibition either on 4he part of Pundlik to adopt a stranger such as Yadao, in case Pandurang died. The only question remaining was this : Whether, nevertheless, Pundlik having died joint with Namdeo, Champabai s right to adopt had been exhausted by her adoption of Pandurang or whether she had still power to adopt Yadao even against the wishes of Namdeo.

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2. For, it had been argued for Namdeo, as appears from the report (p. 516), that

if at his [Pundlik s] death his widow had not power to adopt without his authority the fact of a subsequent separation could not give her authority,

so that the deed of April 23 was immaterial, even if it was held to operate as a separation; and Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) had been cited in support of this contention of perpetual disability in Champabai to adopt anyone but Pandurang. It had been argued by the other side that Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) had been wrongly decided. In fact, the report of the arguments shows that for Yadao the argument was pushed to the other extreme, that unless his adoption was shown to have been expressly prohibited by Pundlik, it must stand on the widow s inherent power, also irrespective of the construction of the deed of April 23, even if it was held not to operate as a separation. And it is in the light of these arguments on this issue of law that I read their Lordships judgment on the power of Champabai to adopt (from p. 523 onwards) and particularly the passage (at p. 526) following the quotation from an early decision of Jenkins, C.J., in Lakskmibai v. Sarasvatibai [1899] 23 Bom. 78

9. That passage has been cited in extenso on pp. 787 and 795 of the referring judgments, and I need not recite it. That and the following passage at p. 529 after a quotation from Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181:

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 property which 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:

these two passages are the basis of the contention that Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has been - at least impliedly - overruled.

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3. There was clearly ample opportunity to do so explicitly, if their Lordships had so desired. It was only necessary to accept the whole contention for Yadao and to say that the deed of April 23 and its construction were immaterial as in their Lordships view the limitation on a joint widow s powers of adoption laid down in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was wrong, and no prohibition by Pundlik being proved, the adoption of Yadao was valid, though made without the consent of Namdeo, even if he still remained an undivided coparcener ; and Yadao was entitled to Pundlik s half share. But that is exactly what their Lordships have not done. On the contrary, they begin by construing and considering the deed of April 23, and. by finding that it effected a reparation in status. They observe (p. 524):

In the present case Pundlik had not separated ; he had died a member of a joint Hindu family, and the estate which was vested in Mt. Champabai at the time when she adopted the plaintiff as a son to her husband was not the interest which Pundlik had in the joint family property, but was the estate which had vested in Pandurang on the separation of the joint family.

134. And again (p. 527), after quoting from the case from Travancore, Sri Raghnadha v. Sri Brozo Rishoro [1876] 1 Mad. 69, as to

135. the duty of the Court to keep the power strictly within the limits which the law has assigned to it,

and remarking on the widow s wider powers in the Maratha country, they observe:

In the present case, owing to the family having separated, the rights, of Namdeo and his son Rambhau were merely the right of collaterals in unpartitioned property,

so that presumably even, in Travancore, and a fortiori, in the Maratha country, their consent was not necessary to validate the adoption of Yadao.

136. Then (pp. 527-529), after a reference to Narayan Babaji v. Nana Manohar [1870] 7 B.H.C.A.C. 153 and the facts in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 and a quotation from p. 191, follows the passage already cited, applying this quotation, which is referred to as a decision, to the facts in Yadao v. Namdeo A.I.R. 1922 P.C. 216. And lastly (p. 530) their Lordships consider Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 and Westropp, J. s observation therein on the power of a Hindu widow to adopt without authority from her husband and point out that the decision did not proceed on this power on which the other two Judges did not express a considered opinion, but was based on the point, held proved by all the three-Judges, that the widow Bayabai had been cajoled by misrepresentation into making the adoption. That suit was by the guardian of the infant adopted against the widow Bayabai, who had made the adoption and now sought to repudiate it on the three grounds mentioned in Yadao v. Namdeo A.I.R. 1922 P.C. 216.

137. Therefore, their Lordships of the Privy Council point out, the actual decision in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 is not itself based on any principle or extension of Hindu Law, but is based on a finding of fact, and Westropp, J. s review and observations on the power of a Hindu widow are obiter dicta not confined to the Maratha country.

138. In Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181, the decision itself was based on two principles; firstly, that the absence of prohibition by the husband sufficed and his express permission was not necessary to validate the adoption by the senior widow; and, secondly, that the consent of the junior widow was not necessary. In so far as the observations of Westropp, J., on a review of Hindu authorities in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 laid down that the husband s refusal in his lifetime, and even on the day preceding his death, to adopt a son was tantamount to a positive prohibition to the widow to adopt after his death, their Lordships of the Privy Council in Yadao v. Namdeo A.I.R. 1922 P.C. 216 hold that, whatever the case in other parts of India, in the Maratha country, these observations of Westropp, J., have no application ; and they prefer the decision and the principles in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 as applicable to the facts in Yadao v. Namdeo A.I.R. 1922 P.C. 216. The only manner in which that decision, as distinguished from the dicta therein, can be applied to the remaining issue of the power of Champabai, is, I think, this : The refusal by Pundlik to adopt in his lifetime was not a prohibition to Champabai to adopt another boy, such as Yadao, after the adoption and death of Pandurang. If she considered it her religious duty to adopt another boy, her power could not be said to be exhausted, and Pandurang having separated, Namdeo and his second son were collaterals and their consent was not necessary to the adoption of Yadao, who was entitled to the property of Pandurang.

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9. This is shortly how I understand the principle of the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216. It disapproves, I think, the obiter dicta of Westropp, J., in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 to the extent stated above. It rejects the contention for Namdeo sought to be supported from Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), that Champabai, because she had not the family estate vested in her and her husband was not separated at the time of his death, had no power of adoption left in her after the adoption and death of Pandurang. But, as I have already 3aid, neither did their Lordships accept the extreme contention of Yadao that the deed of April 23 was immaterial, and abolish the limits, on the power of adoption of a widow in an undivided family, laid down in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). On the contrary, they construe the deed of April 23, hold that it operates as a separation in status, and in more than one place refer to Namdeo s subsequent altered status as a collateral, so that, as pointed out in the referring judgments, on those findings as to the deed and the absence of the prohibition, even on the ratio decidendi in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and the vesting of the estate of Pandurang in the widows and the decisions such as Verabhai Ajubhai v. Bai Hiraba [1903] 27 Bom. 492, Mallappa v. Hanmappa [1920] 44 Bom. 297, [LQ/BomHC/1919/100] Anjirabai v. Pandurang Balakrishna A.I.R. 1924 Bom. 441, [LQ/BomHC/1924/23] the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216 would be exactly the decision actually arrived at.

140. To put it another way, the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216 has not in any way affected the main point of the principle in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), viz., the necessity of the consent of the undivided coparceners for a valid adoption by a widow in a joint family made without the authority of her husband. The question might have arisen, had Yadao been first adopted by Champabai. But, as Namdeo s son Pandurang was first given and validly taken in adoption and subsequently separated, the question did not arise and could not be decided. As a matter of fact, Pandurang s adoption complied with both conditions laid down in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) for a valid adoption by a widow in a joint family. But the construction of the deed of April 23, the references to Pandurang s half share and to Namdeo s being a collateral on Pandarang s death and the reference to the necessity of keeping the widow s powers within the limits assigned in Sri Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69, all these circumstances point, I think, if anything, to the approval of the Privy Council to one of the conditions laid down in Ramji s case [1881] 6 Bom. 498 (F.B.) as to the necessity of the consent of undivided coparceners.

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1. As to the other condition in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), viz., the husband s authority, it was settled before Yadao v. Namdeo A.I.R. 1922 P.C. 216 that his wishes, positive or negative, were binding on the widow : Sitabai v. Bapu [1920] 47 Cal. 101

2. What these wishes are and how far any word or act of his is authority for, or prohibition against, any particular adoption made by the widow, is a question of fact in each case on the evidence in regard to which no rule is laid down in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), not even the dictum of Westropp. J., in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 at pp. iii and xvii. In Yadao v. Namdeo A.I.R. 1922 P.C. 216 their Lordships approve of the view in Rakhmabai v. Radhabai [1868] 5 B.H.C.R.A.C. 181 and they disapprove of the remarks of Westropp, J., in Bayabai v. Bala Venkatesh [1866] 7 B.H.C.R. App. 1 that refusal to adopt in his lifetime is of itself tantamout to prohibition. As between express authority at one end and express prohibition at the other is the large space of implied authority and implied prohibition. The dividing line between the last two categories cannot be laid down by the Courts. That must be a question on the facts in each case and does not depend on the words with his authority, or in the absence of the prohibition.

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2. In this Presidency these two early decisions have never been regarded as conflicting or overlapping inter se or with the third decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). The first has been consistently treated as authority only for the proposition that the consent of the junior widow is not necessary to validate an adoption by the senior widow. On the facts stated therein and in the last case, it has never been applied to widows in a joint family. The observations of Couch, C.J., in the first case and of Westropp. J., in the second, as to the husband s refusal to adopt, have always been treated as obiter dicta and not as the principle of either decision, And the third case (Ramji s) has been regarded as laying down one of two conditions for the validity of an adoption by a widow in a joint family, either authority or at least absence of prohibition by the husband or the consent of the undivided coparceners, the former being a question of fact in each case as to the wishes of the husband.

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3. re is nothing in this third decision, nor has it been treated as carrying a personal and perpetual disability in a widow, because her husband died undivided, even after a valid adoption such as Pandurang s and a separation and vesting of property in the latter and on his death in the adopting widow.

144. this view I am unable to see that Yadao v. Namdeo A.I.R. 1922 P.C. 216 even by implication, overrules Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) in regard to either condition precedent to the power of the widow in a joint family to adopt, unless in the case of ill five decisions the clear rule laid down by Lord Halsbury and Lord Haldane distinguishing the principle of an actual decision from the dicta in it, is to be disregarded and the distinction obliterated. There are, undoubtedly, remarks to be found in Yadao v. Namdeo A.I.R. 1922 P.C. 216, original and quotations, in regard to the religious duty of the widow or her inherent right to adopt (pp. 526, 527, 529). Some, as for instance, those of Jenkin s, C.J., in Lahshmibai v. Sarasvatibai A.I.R. 1922 Bom. 347, [LQ/BomHC/1922/94] are in express terms obiter dicta, phrased with the greatest caution; But, whatever the phraseology, these remarks are all in law obiter dicta equally with the remarks of Westropp, J., and Couch C.J., and at the most are on the point of prohibition, express or implied, by the husband. They are not the principles of the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216. They do not carry the power to adopt of a Hindu widow in a joint family further than Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). Her religious duty or her inherent right based thereon, and not affecting property, may not vary with the province and is not in itself a matter for the Courts. But, as regards the adoptions of Pandurang and Yadao the validity of the former was not disputed, and it was valid within the rule in Ramji s case [1881] 6 Bom. 498 (F.B.), and so, on the findings, was the adoption of Yadao. The only principle, which I can extract from Yadao v. Namdeo A.I.R. 1922 P.C. 216, is as follows : In a family which is undivided at the time of her husband s death, but which is subsequently separated in status, even though the property is not actually partitioned, a Hindu widow in the Maratha country can, after the separation in status, and when the property vests in her and her co-widow, adopt without the consent of the collaterals, so long as there is no prohibition, express or implied, by the deceased husband to that particular adoption. Absence of express authority, or refusal to adopt in his lifetime, is not of itself a prohibition in the Maratha country.

145. If their Lordships had desired to vary the principle in Ramji s case [1881] 6 Bom. 498 (F.B.), and to lay down that a son adopted by a widow in an undivided family, without the husband s authority and against the wishes of the undivided coparceners, obtained some rights to property, such as the right of the husband of the adoptive mother, they would assuredly have laid down a definite rule for the devolution of the property in such a case and would not have contented themselves with remarking (p. 526) that the right might be different.

146. The opposite conclusion would, in my opinion, be to fall into a similar error of interpretation as in the case of the judgment of the Privy Council on the law as to antecedent debt in Sahu Ram Chandra v. Bhup Singh [1917] 39 All. 437 into which the Courts in India fell, in Brij Narain Rai v. Mangal Prasad [1918] 41 All. 235 and in Badagala Jogi Naidu v. Bendalam Papiah Naidu . This last Madras decision was dissented from in Peda Venkanna v. Sreenivasa Deekshatulu [1918] 41 Mad. 136 and was overruled in Armugham Chetty v. Muthu Koundan [1919] 42 Mad. 711 in which the remarks of Wallis, C.J., at pp. 724 and 725 and of Seshagiri Ayyar, J., at p. 735, are apt in the present reference. The matter was placed beyond all doubt by their Lordships of the Privy Council in the appeal from the Allahabad decision in Brij Narain v. Mangla Prasad A.I.R. 1924 P.C. 50. In that case (as pointed out at p. 136) the conflict was between two principles : one, the interest of the joint sons in the joint family property even in their father s lifetime ; and the other, the pious obligation, that is, religious duty to pay their father s debts. These two principles are not easy to reconcile and they result in a state of the law which can hardly be called logical and in which the former has finally been subordinated.

147. In the present question, the religious duty of adoption on the one hand, and on the other, the principle that in a joint family a stranger co-parcener cannot be introduced from outside without the consent of the other coparceners, are principles not always easy to reconcile. But, from the point of view of the Courts, the latter is actually more fundamental. In practice they are reconciled by various circumstances such as the ties of affection between the coparceners who are born and bred together, the certainty on the part of each member that even without adoption the Shraddha and the religious ceremonies after death will be duly performed, the Pinda or oblation duly offered and the name of the family will remain. The result is that adoptions by a coparcener without a son such as Pundlik are more rare than in a separated family and a desire that his widow should adopt still rarer. But, apart from these considerations, it may be questioned, if I may say so with all deference, whether the solution is facilitated or even simplified by a Consideration of the inherent right of the widow to adopt "as opposed to a delegated right any more than by a rule with the widow s motives as a test. It is not necessary to stress the texts of Vasishtha (xv-5) as to the necessity of the husband s consent or of Narada, refer-ed to in the Mitakshara (Ch. II, Section 1, p. 7) as to the rights of brothers, to property in a joint family on the death of a brother and the chaste widow s right to maintenance only. But the rule in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) is a plain and a simple rule, and one, which, I might add, reflects the actual custom in the Maratha country. In fact, even in the two cases now under consideration, it will be noticed that in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.)(p. 499) it was the plaintiff Ramji s own allegation that he was adopted by Kondai only after the refusal by Ghamau to give Kondai one of the coparcener s sons in adoption. And, similarly, in Yadao v. Namdeo A.I.R. 1922 P.C. 216 not only did Pundlik refuse himself to adopt, and not only was the person designated by Pundlik and actually first adopted after his death, Pandurang, a minor coparcener, but on Pandurang s death Champabai tried to obtain the consent of Namdeo to her adopting Namdeo s Other son Rambhau (p. 521). This will suffice to show positively the custom in joint families of adopting, if at all, a coparcener and not an outsider, in other words, of obtaining the consent of the coparceners to the adoption.

148. Again, the grave social objections to-which their Lordships referred half a century ago in Sri Raghunadha v. Sri Brozo Kishoro [1876] 1 Mad. 69, already quoted, exist in full force in the present day. The number of cases in this Court resulting from adoptions by widows, and in some cases of successive adoptions by the same widow in the lifetime of the first adopted son, suffices to show, without reinforcement from the law of pardanshin women, the dangers that would result if the rule in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), which has obtained for fifty years, were abrogated. The temptation to adopt a child, if possible, from her parents family, would be great. Prom a bare claim to maintenance, she would, in the adopted child s name, obtain a right to possession to a share in the joint property, to be enforced by separation and disintegration of the joint family.

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9. The enunciation and administration of Hindu Law by the Courts is a delicate and a difficult task. If a rule, hitherto laid down by the Courts, offends Hindu interests or susceptibilities, there are now increasing facilities to correct such decisions by means of legislation. The rule in the Tagore case and the Hindu Disposition of Property Act 15 of 1916 are an instance in point. The rule in Ramji s case [1881] 6 Bom. 498 (F.B.) reconciles both principles as far as they can be reconciled. If a sonless coparcener, despite other considerations, feels it his duty or his interest to adopt, he can, by adoption in his lifetime, or upon death, by authority to his widow, ensure that his interest in the joint family property is not extinguished and passes to his adopted son. But, if he does not do so, then, on his death, that interest, under the very essence of the law of the joint family, re-vests in the joint family. It cannot lie dormant, to be revived at the will of his widow who has but a right to maintenance. To this law the Maratha country, by virtue of the rule in Ramji s case [1881] 6 Bom. 498 (F.B.), adheres. A deviation from that law, because in the Maratha country express authority has been by the Courts whittled down to absence of prohibition, necessarily involves such a revival of the interest of the deceased after and although it has revested in the joint family - a revival not ordinarily known to the law applying to a joint family estate. And until and unless the Legislature or the Privy Council expressly and clearly authorizes so grave a departure, this Court should not, in my opinion, take upon itself authority to do so. I adopt the words of the Privy Council in Brij Narain v. Mangla Prasad A.I.R. 1924 P.C. 50:

150. In such a matter as the present it is above all things necessary stare decisis, not to unsettle what has been settled by a long course of decisions.

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1. For these reasons, I would hold that the decision in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) has not been overruled by the decision in Yadao v. Namdeo A.I.R. 1922 P.C. 216. My answer to the reference is m the negative.

Coyajee, J.

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2. I have endeavoured to express my view on the subject in my referring judgment. Since then I have had the advantage of reading the exhaustive judgment of my learned colleagues. I concur in the opinion expressed by Shah and Madgavkar, JJ., and have but little to add.

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3. The question for determination in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was essentially different from the one which arose in Yadao v. Namdeo A.I.R. 1922 P.C. 216. In the former case the facts were these : (Here facts are given as in page 436.)

154. In Yadao v. Namdeo A.I.R. 1922 P.C. 216, Champabai, the senior widow of Pundlik, adopted Pandurang, one of the two sons of Namdeo, in the year 1905. The validity of that adoption was not disputed, as she had not only the authority of her husband to do so, but there was also the consent of his first cousin Namdeo. In April 1905, Namdeo and his son Rambhau separated from Pandurang and ceased to be members with him of the joint family. In 1907, Pandurang died unmarried. Thereafter Champabai tried to obtain the consent of Namdeo to her adopting Rambhau; but Namdeo refused to give him in adoption; and in December 1908 she adopted the plaintiff Yadao. Their Lordships were invited to consider the question of the validity or otherwise of the adoption of Yadao made under those circumstances. Their Lordships observed (p. 521):

It has not been and cannot be disputed that Mt. Champabai had the authority of her husband, Pundlik, if she chose to exercise it, to adopt, to him Pandurang. That authority she acted upon in adopting Pandurang in 1905, but on behalf of Namdeo it is contended that Pundlik s authority to his wife to adopt a son to him was limited to an adoption of his son Pandurang, and that Pundlik s expressed wish in his last illness was that no boy except Pandurang should be adopted to him. If it had been proved that Pundlik had in fact expressed as a direction to be followed by his wife his wish that no boy except Pandurang should at any time be adopted to him, their Lordships would hold that the direction prohibited Champabai from adopting the plaintiff, and consequently that the plaintiff s adoption was invalid.

155. Their Lordships then consider the evidence bearing on that question and say (p. 523):

The conclusion which their Lordships draw from the evidence is that Pundlik intended if he adopted any boy as his son, to adopt Pandurang, and if his statements can be construed as a direction to his wife, that direction was that she should adopt Pandurang, and that he gave no direction as to what should be done if Pandurang should be unavailable or should die after lie was adopted. Under these circumstances, and Pandurang having died in childhood and unmarried, it is necessary to consider what power, if any, Mt. Champabai had under the Hindu Law applicable in the Mahratta country of the Presidency of Bombay to adopt the plaintifi as a son to her deceased husband.

156. Their Lordships then refer to Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) and Dinkar Sitaram Prabhu v. Ganesh Shivram Prabhu [1881] 6 Bom. 505 (F.B.) and observe as follows (p. 524):

In the present case Pundlik had not separated ; he had died a member of a joint Hindu family, and the estate which was vested in Mt. Champabai at the time when she adopted the plaintiff as a son to her husband was not the interest which Pundlik had in the joint family property, but was the estate which had vested in Pandurang on the separation of the joint family.

157. The question, then, which arose in the case of Yadao v. Namdeo A.I.R. 1922 P.C. 216 was entirely different from the one which was decided in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.). In Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) it was held (to use the words of Sir Lawrence Jenkins, C. J., in Bachoo v. Manlcorebai [1905] 29 Bom. 51:

that for an adoption in a united family the husband s authority, or the sapinda s consent, is necessary.

158. The head-note to the report of that case in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.), which I have set out in my referring judgment, says:

A Hindu widow, who has not the family estate vested in her, and whose husband was not separated at the time of his death, is not competent to adopt a son to her husband without his authority or the consent of his undivided coparceners.

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9. It derives support from certain observations contained in the judgment namely (p. 503),

that the widow of a Hindu, dying without leaving male issue, may, if her husband were separated from his family in estate (or, in other words, when she is his heir), adopt without any express authority from him...and without the consent of his relatives.

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60. That proposition is rather broadly stated : see the decision of this Court in Mallappa v. Hanmappa [1920] 44 Bom. 297 [LQ/BomHC/1919/100] : and is disapproved by their Lordships in Yadao s case A.I.R. 1922 P.C. 216. The real question for determination, however, in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.) was : whether in a united family the widow of a deceased coparcener has the power to adopt a son, in the absence of authority from her husband, without the consent of the surviving coparceners. This Court decided that question in the negative. That decision is not overruled in Yadao v. Namdeo A.I.R. 1922 P.C. 216. For their Lordships of the Privy Council do not expressly Jay down the principle that a widow, in those circumstances, could make a valid adoption. And regard being had (a) to their Lordships earlier judgment in the Ramnad case [1868] 10 W.R. 17; (b) to their Lordships observations in Sri Raghunada s case [1876] 1 Mad. 69 as quoted in Ramji v. Ghamau [1881] 6 Bom. 498 (F.B.); and (c) to the grounds upon which those observations are distinguished in Yadao v. Namdeo A.I.R. 1922 P.C. 216 ; there is no justification for the view that their Lordships have laid down any such principle by implication.

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1. I may be permitted to say that I feel no embarrassment in answering the question referred to the Pull Bench in the negative. For, the respect which at all times is due to observations contained in the judgments of their Lordships of the Privy Council cannot absolve us from the duty of seeing for ourselves how far the observations on which stress is laid apply to the facts of the particular case before us.