A widow's authority to adopt granted by her deceased husband is extinguished once a previously adopted son succeeds to the estate and attains full legal capacity to continue the lineage, as the power to adopt is limited by the vesting of the estate in the last owner.

Judgement

Appeal from a judgment and decree of the High Court (April 22, 1912) affirming a decree of the District Judge of Ganjam (November 1, 1910).

The suit was instituted by the appellant against the respondent claiming that he was entitled to succeed to an impartible zamindari estate, of which the respondent was in possession. The respondents younger brother, Kunja Bihari, was made a defendant and, on the decease of the respondent, represented him upon the present appeal.

The appellant by his plaint alleged that " according to HINDU LAW and usage he, as the adopted son of the late Adikonda Deo, and as the sole representative of the senior branch of the undivided co-parcenary, has become entitled from the date of his adoption to” the property in suit. The respondent by his written statement pleaded (1.) that the authority given by Adikonda Deo to his

Law Rep. 45 Ind. App. 156 ( 1917- 1918) Madana Mohana Deo V. Purushothama Deo

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widow to adopt did not authorize her to make a second adoption; (2.) that, if it did so, it was incapable of being exercised at the date of the appellants adoption, in that the widow of the first adopted son was alive, and that she, if duly authorized, alone could validly adopt to her deceased husband ; (3.) that the adoption of the appellant having been to a person other than the last male holder (Brojo), and the estate having upon the death of Brojo vested in a person other than the adoptive mother, the adoption was invalid.

The facts appear from the judgment of their Lordships.

The District Judge dismissed the suit. He held (1.) that under the terms of the authority to adopt there was not power to make a second adoption; (2.) that, in any case, the authority had come to an end in that Brojo had left a widow surviving him; and (3.) that the estate being impartible, the principles governing separate property were applicable rather than those governing an undivided co-parcenary, and that upon the former principles the adoption was invalid.

The High Court affirmed the decree. The learned judges (Sir Arnold White C.J. and Seshagiri Aiyar J.) agreed in holding that under the authority there was power to make a second adoption, but that the power was not exercisable in that Brojos widow was alive when the second adoption was made. Upon the remaining question involved in the appeal the learned judges were not wholly agreed. The Chief Justice did not desire to dissent from the judgment of Seshagiri Aiyar J., but was not satisfied that the judgment of the District Judge was wrong. Seshagiri Aiyar J. was of opinion that the rule that an estate once vested can only be divested by an adoption when the adoption is to the last male holder was not applicable to co-parcenary property; and that the rule consequently did not apply, since, in his view, every incident which attached to survivorship existed in the case of an impartible estate in Madras either under the Madras Impartible Estates Act (II. of 1904) or by judicial pronouncements.

The appeal is reported at I. L. R. 39 M. 1105.

1918. March 12. De Gruyther, K.C., and Dube for the appellant. The terms of the authority and the circumstances indicate that the intention was that a second adoption should be made if necessary ; the first adoption therefore did not exhaust the power Kannipalli v. Pucha Venkata (( 1906) L. R. 33 I. A. 145.); Bhagwat Per shad v. Murari Loll . (( 1910) 15 Cal. W. N. 524.) The existence of Brojos widow at the date of the adoption did not exclude the valid exercise of the power. Brojo himself was not adopted till after the death of Adikonda ; nevertheless the Board in Ragunadha

v. Brozo Kishoro (( 1871) L. R. 3 I. A. 154.) held that he was entitled to succeed. There is no text to support the limit to the exercise of a power to adopt laid down in Ramakrishna v. Shamarao. (I. L. R. 26 B. 526.) In any case, that rule does not apply to this case, because it was not proved that Brojos widow had power to adopt, and because the widow herse