1. The District Judge has rejected the appellant's claim, holding, on the authority of Sreeramulu v. Kristamma 26 M. 143, that where a Hindu widow, who has inherited her husband's immoveable property, alienates part of it and then adopts a son, the son cannot sue to recover possession of the property until the termination of her widowhood, even though the alienation was not for a proper or necessary purpose, justified by Hindu Law. This Madras ruling is directly opposed to the decisions of this Court in Lakshman Bhan Khopkar v. Radhabai 11 B. 609 and Moro Narayan Joshi v. Balaji Raghunath 19 B. 809, which the District Judge has misread in thinking that they are not conclusive on the point. There is an earlier decision of this Court (Nathaji Krishnaji v. Hari Jagoji 8 B.H.C.R. a.c.j. 67), which is equally conclusive. (See page 73 of that report.) Besides, these decisions have been followed in this Court except in one case (Bhaudixit bin Bhaskardixit v. Ishwardixit bin Bhaskardixit S.A. 146 of 1905 (Unrep.)), in which Russell and Batty, JJ., followed the Madras decision. It does not appear to have been brought to the notice of those learned Judges that the law enunciated in Nathaji Krishnaji v. Hari Jagoji 8 B.H.C.R. a.c.j. 67 and, the other two decisions (Lakshman v. Radhabai 11 B. 609 and Moro v. Balaji 19 B. 809), has been followed in this Court in a number of unreported decisions and has been understood to be well established in this Presidency since the year 1871.
2. Where a Hindu widow, who has inherited her husband's property, adopts a son, the adoption has the effect of divesting her of the property and putting an end to her estate as heir of her husband. The adoption has the same effect as her death, with this difference that, after the adoption, she has a right of maintenance against the adopted son during the rest of her life, but that right, so long as it is not a charge on the estate or any portion of it, does not confer on her any right to the estate or entitle her to transfer it by way of sale or mortgage. These are indisputable propositions of law, and indeed they are admitted in the Madras judgment on the authority of the Privy Council ruling in Dhurm Das Pandey v. Mussumat Shama Soondri Debiah (1843) 3 Moo. I.A. 229 at p. 242 : 6 W.R. 43.
3. If the widow, before the adoption, severs a portion of the inheritance therefrom and transfers it to a stranger, without any proper or necessary purpose binding the estate absolutely according to Hindu Law, the transfer, logically speaking, must cease to have any effect after the adoption, since it could only operate during the time that the estate was represented by her as heir and the result of the adoption is to terminate that estate.
4. But in support of their view the learned Judges who delivered the judgment in Sreeramulu v. Kristamma 26 M. 143, rely on those decisions of the Privy Council and of our High Courts, in which it has been held that a Hindu widow has "an absolute right to the fullest beneficial interest in her husband's property for her life," that is, "during the term of her widowhood." Now, as a general proposition of Hindu Law, that is true. But the cases, in which it has been so held and which are cited in the Madras judgment, were cases in none of which was any question of an adoption by the widow and the effect it has on her estate as heir of her husband, involved. It is straining the language of those decisions, particularly the words "during her widowhood," to apply them to a state of facts not contemplated or covered by those decisions. That general proposition is qualified by the proposition laid down in other cases that such an adoption puts an end to that estate and divests her of it, though her widowhood continues.
5. The Madras judgment proceeds upon the analogy of an adoption made by a Hindu father after he has alienated any portion of his ancestral property. Now, it is true that the adopted son in such a case cannot question the alienation and that he becomes joint owner with the father only as to such ancestral property as the father was possessed of at the date of the adoption. But there can be no analogy between such a case and a widow making an adoption to her husband. In the case of the father, at the date of the alienation he was full proprietor of the property--he could do what he liked with it so long as there was then no son to restrict his right of alienation to purposes defined by Hindu Law. The alienee takes the property absolutely and the subsequent adoption cannot affect it: Rambhat v. Lakshman Chintaman 5 B. 630. It is otherwise with a widow. Though she represents the estate as heir at the date of an alienation by her, her right is of a limited character and she has no absolute right over if except in certain cases defined by law. She can confer an absolute right on her alienee only in those cases; otherwise the alienation has effect only during the time that her widow's estate lasts. That estate, according to Hindu Law, comes to an end either when she dies or when she makes an adoption. The alienee takes the property from her subject to that law, provided the alienation was not for a proper or necessary purpose according to Hindu Law. It is difficult to see how the case of a father can supply any analogy to the case of a widow, which rests on different principles.
6. But the learned Judges in the Madras judgment rely on certain observations of the Privy Council in the well-known case of Moniram Kolita v. Keri Kolitani L.R. 7 IndAp 115 at p. 155 : 6 C.L.R. 322 : 5 C. 776 as having "an important bearing on the question now under consideration" and as lending support to their view. The observations are:--
"But, further, the widow has a right to sell or mortgage her own interest in the estate.
......If her estate ceases by an act of unchastity, the purchaser or mortgagee might be deprived of the estate, if the surviving brother of the husband should prove that the widow's estate had ceased in consequence of an act of unchastity committed by her prior to the sale or mortgage."
7. Laying emphasis on the word "prior," the learned Judges in their judgment remark:--
"It will be noted that in this passage the Privy Council distinctly assume that even if the widow's estate should cease by her committing an act of unchastity and the succession of her husband's heirs should thereby be accelerated, the purchaser or mortgagee, from her, of her own life-interest in the estate, would not be divested of it, if the sale or mortgage had taken place prior to her act of unchastity, but only if it had been subsequent thereto." (P. 153 of the report.)
8. The observations of the Privy Council must be read by the light of the context in which they occur. The question in Moniram Kolita's case L.R. 7 IndAp 115 at p. 155 : 6 C.L.R. 322 : 5 C. 776 was whether unchastity in a widow causes forfeiture of the property which she has inherited from her husband, where such unchastity is subsequent to the inheritance. After dealing with the texts in the Hindu law books on the subject, and concluding on the strength of those texts that such unchastity does not cause forfeiture, their Lordships proceed to refer to Mr. Justice Jackson's judgment as pointing out "the mischief, uncertainty and confusion that might follow upon the affirmance of the doctrine that a widow's estate is forfeited for unchastity, particularly, in the present constitution, of Hindu society and the relaxation of so many of the precepts relating to Hindu widows." It is in this hitter connection that the observations in question occur in the judgment of the Privy Council. First, their Lordships point out that if unchastity in a widow were held to involve the consequence of forfeiture of her estate, the reversionary heir of her husband, if he happened to be her husband's brother, might lead her into temptation and thus accelerate the succession in his own favour. That is one mischief. Next it is pointed out that a person who had taken a purchase or mortgage from her after her unchastity might suffer. The hardship, uncertainty and confusion, in such a case is obvious. The purchaser or mortgagee might not know of the unchastity at the time of the alienation in his favour and to be deprived of the estate because the unchastity is subsequently proved, is hard upon the alienee, because, in that event, he must be treated as a trespasser ab initio, having taken the transfer without any title. These considerations do not exist in the case of a purchase or mortgage before the act of unchastity. There the purchaser or mortgagee takes a good title, subject to the condition that it will last until the widow's estate as heir is terminated in any of the modes recognised by Hindu Law. Upon the hypothesis that unchastity is one of those modes, the purchaser or mortgagee, who takes the property subject to that condition, cannot complain of hardship, if subsequently the widow turns out to be unchaste, because till then he has the right to the estate. It is in this light that the Privy Council would seem to have made the observations above cited.
9. There is nothing in the judgment of the Privy Council to warrant the inference that their Lordships intended the observations in question as more than mere "argumentum ab inconvenienti," or to convey more than they have said expressly by way of illustration. The inference drawn from them by the Madras High Court is directly opposed to the decision of the Privy Council in Bamundoss Mookerjea v. Mussamut Tarinee 7 M.I.A. 169 at p. 180 in which they entirely adopted the following dictum of the Bengal Sadar Divani Adalat: "In that case, the son, when adopted, became the undoubted heir; and it was of course the correct doctrine that no sale made by a widow who possesses only a very restricted life-interest in the estate, could have been good against any ultimate heir, whether an adopted son or otherwise, unless made under circumstances of strict necessity."
10. Article 125 of the second schedule to the Limitation Act, 1877, is also invoked by the learned Judges in the Madras judgment in support of their view. That Act, being a law of procedure, should not be presumed to have effected any change in the rights of parties given by the substantive Hindu Law. Article 125 applies only to a reversionary heir which indeed a son adopted by a widow is not. But Articles 118 and 119 specially provide for the case of such a son: and where those Articles do not apply, the case must fall within Article 144: see Moro v. Balaji 19 B. 809.
11. It is to be remarked that the judgment of the Madras High Court in Sreeramulu v. Kristamma 26 M. 143 throughout confines the principle of its decision to a case where the alienation by a Hindu widow made before the adoption of a son by her, is of only a portion of the property inherited by her from her husband. If the principle is sound, there is no intelligible reason why it should not equally apply to a case where the widow has alienated the whole and not merely a portion of the property. The distinction made throughout the judgment in that respect is purely arbitrary. No authority is cited for it and it rests on no principle derived from texts or decided cases. After this, it is not necessary to follow the judgment in the consideration of the question whether its ruling is "in consonance with justice and equity." Notions of justice and equity vary and the considerations on that head noticed at the conclusion of the judgment may well be counterbalanced by others equally, if not more, weighty. Most of those considerations are inapplicable to the law of adoption in this Presidency, where a widow is entitled to adopt a son, unless her husband has prohibited it, whereas in the Presidency of Madras she has to obtain the consent of her husband's sapindas to such adoption. In any case, such considerations as are pointed out in the judgment cannot outweigh the established principles of Hindu Law.
12. For these reasons, we adhere to the decisions of this Curt in Lakshman v. Radhabai 11 B. 609 and Moro v. Balaji 19 B. 809 not only on the ground of stare decisis, but also as being sound Hindu Law. Reversing the decree of the lower appellate Court, we remand the appeal for disposal according to law on the merits. Costs shall abide the result.
