Judgement

MAHAJAN C.J.I.: This appeal raises a question of importance "whether a widow can exercise a power of adoption conferred on her or possessed by her at any, time during her life irrespective of any devolution of property or changes in the family or other circumstances and even after a grandson has come on the scene but has subsequently died without leaving a widow or a son."

2. The situation in which this question arises can properly be appreciated by reference to the following genealogy :

3. Gurunath the plaintiff, claims that he was adopted in 1943 by Gangabai, widow of Krishtarao. Krishtarao died in 1890, leaving him surviving two widows Radhabai & Gangabai and a son Dattatraya. Dattatraya died in 1913 leaving him surviving a widow Sundarabai and a son Jagannath. Sundarabai died shortly after Dattatraya while Jagannath died in the year 1914. After an interval of about 30 years since his death, it is alleged that Gangabai who survived both her son, and grandson adopted the plaintiff, and thus which we are called upon to solve.

4. raised the proolem On the 15th of March, 1944 the appellant instituted the suit out of which this appeal ariscs in forma pauperis" on the allegation,that he was the adopted son of Krishtarao and adopted to him by Gangabai, his junior widow, and as such was entitled to the possession of his adoptive father s properties comprised in the suit. He also claimed a declaration regarding the amount of compensation money payable to the plaintiff s family for the land acquired by Hubli Municipality. The defendants who are the sons and grandsons of the first cousin of Krishtarao disputed the plaintiff s adoption on the ground that Gangabai s power to adopt was extinguished when Dattaraya died in 1913, leaving behind him a widow Sundarabai and a son Jagannath who could continue the family line. Gangabai in her written statement supported the plaintiff s claim and asserted that the senior widow Radhabai had given consent to her adopting the plaintiff.

5. The trial judge upheld the defendants contention and dismissed the plaintiff s suit The factum of the plaintiffs adoption was however upheld, and it was further held that Radhabai did not give her consent to the adoption. On appeal this decision was affirmed by the High Court and it was held that Gangabai s power to adopt came to an end at the time when her son died leaving a son and a widow to continue the family line. No finding was given on the question whether Radhabai had given her consent to the adoption. That perhaps would have been the simplest way to end the dispute. Against the decision of the High Court this appeal in forma pauperis is now before us by special leave.

6. The only question canvassed in the appeal is in respect to the validity of the plaintiff s adoption. It was contended that Hindu Shastric Law itself sets no limit to the exercise of the widow s power of adoption once she has acquired that power or is possessed of it, and that being so, the power can be exercised by her during her life, time when necessity arises for the exercise of it for the purpose of continuing the line of her husband.

On the other hand, it was argued that though Hindu Shastric Law itself sets no limit to the exercise of the power, yet it has long been judicially recognised that the power is not an unlimited and absolute one, and that it comes to an end when another heir has come on the scene and he has passed on to another the duty of continuing the line. The question at what point of time the widow s duty of continuing the line of the husband comes to an end has been the subject-matter of a number of decisions of Indian High Courts and of the Privy Council and the point for our consideration is whether the limits laid down in these decisions have been arbitrarily fixed and are not based on sound principles and should be reviewed by us.

7. A brief reference to the different decision of the Privy Council is necessary for a proper appreciation of the state