Sadasiva Aiyar, J.
1. The 2nd defendant is the appellant in this case. The plaintiff brought the suit for possession of the plaint lands as lessee from the 1st defendant who, the plaintiff alleges, was the adopted son of one Subbarayadu who died in 1907, having by his registered Will, executed shortly before his death, given authority to his widow, Viyyammal, about 11 years old at that time, to make an adoption, if, and when, she chooses. The 1st defendant is still a minor and the lease relied upon by the plaintiff was by his alleged adoptive mother's father acting as guardian of the 1st defendant and is dated July 1912. Viyyammal attained majority in February 1914, about If years after this suit was brought. The 1st defend-ant's adoption is said to have taken place in May 1907 very soon after her husband's death. One of the defences raised in the case is that the 1st defendant was not validly adopted to Subbarayadu by Viyyammal and that, there fore, the plaintiff cannot maintain the suit as the 1st defendant's lessee. The District Munsif held that the 1st defendant's adoption was invalid and dismissed the suit. I think it convenient to consider at this stage some of the important precedents on this point, (a) In Mondakini Dasi v. Adinath Bey 9 Ind. Dec. 47 it was held that an adoption by a widow who was a minor at the time (that is, who had not attained her 18th year according to the Indian Majority Act) would be valid, provided the widow had attained sufficient maturity of understanding to comprehend the nature of the act, especially if her husband had indicated the boy to be adopted and left her no discretion in the matter of 1st defendant's adoption, and it is found by both Courts that (Viyyammal was only about 11 years old) she had not attained sufficient maturity of understanding to exercise a proper discretion as to the boy to be adopted. Hence the adoption was invalid if her discretion was a sine qua non. (b) In Banganayakamma v. Alwar Setti 13 M.K 214 it was held that a 13 years' old widow had not sufficient discretion of 'her own to choose a proper boy for adoption, but that the intelligent and disinterested guidance of her legal guardian seeking bona fide to provide for a spiritual necessity with due regard to her interest, so far as it is compatible with such necessity,' can take the place of her own discretion. 'There must, however, be cogent evidence of such intelligent and disinterested guidance.' These observations were, however, obiter dicta as the adoption in that case was set aside on the ground that the consent of the widow of 13.years of age was obtained by coercion and she repudiated the adoption in the suit, (c) In Jumoona Dassya v. Bamasoondari Dassya 25 W.R. 235 it was held that a youth of 15 or 16 had attained years of discretion according to Hindu Law and is capable of giving permission to his widow to adopt though, not having attained the age of 18 years, he was a minor for most other purposes, (d) in Sri Rajah Venkata Narasimha Appa Bow v. Sri Rajah Bangayya Appa Row 16 M.L.J. 178 this Court (Davies and Benson, JJ.) held that an adoption made by a major widow under coercion is only voidable by her and can be ratified by her; but when that case went up on appeal to the Privy Council Venkata Narasimha Appa Row v. Parthasarathy Appa Row 23 Ind. Cas. 166 the adoption was set aside on some other ground (namely, that the power given by the husband to the two widows jointly had lapsed by the death of one of them) and their Lordships had not to consider the question whether an adoption made under coercion can be ratified by a major widow. (e) In Amrito Lal Dutt v. Surnomoye Dasi 27 C.K 996 their Lordships of the Privy Council state that a husband could not give power to anybody except his widow to make an adoption. I shall quote the following passages from that judgment:-'That no one can adopt a son to a dead man except his widow is such a rudimentary principle of Hindu Law, and one so constantly occurring in ordinary life, that it is difficult to suppose any educated man to be ignorant of it. That the widow's choice of a boy may be restricted in various ways, and among them by requiring the consent of persons named by the husband; is also familiar law.' The learned District Munsif found as a fact in this case (a) that Viyyammal exercised no discretion in the matter of the adoption and (at her age at the time) was not capable of exercising any discretion; (b) that her father who acted as her guardian did not give disinterested advice to her in the matter of the adoption; (c) that ,the authority to adopt given by the husband required as a sine qua non the exercise of her own discretion, that is, the power to adopt was so restricted by the husband that it could be exercised only according to her own discretion and that even if the substitution of the guardian's disinterested advice allowed by Banganayakamma v. Alwar Setti 13 M.K 214 could be applied, there was no such disinterested advice given in this case, the advice (if any was given) having been very much interested.
2. On appeal, the learned Subordinate Judge 'quite' agreed with the District Munsif that Viyyammal was not at the time of the alleged adoption of an age which rendered her capable of exercising her own discretion in the matter of the adoption and that the advice of her legal guardian was not at all disinterested.
3. He did not deal with sufficient clearness with the question whether the power given to her by her husband did not require as a sine qua non the exercise of her own discretion. He found that Viyyammal's father did not give her an opportunity to exercise her own discretion in the matter and did not even consult her about the desirability of adopting a boy. But he remanded the suit to the District Muhsif in order that, as she was, on the date of the Subordinate Judge's judgment, nearly 19 years old and was in a position to state whether she would ratify the act that was done when she was 11 years old, she might be asked whether she ratified the act of adoption and that then the suit might be decided. Against this remand order, the present appeal has been filed by the contesting defendants. Several interesting questions of Hindu Law were discussed during the course of the arguments in this case, and I shall shortly state my views thereon, though I believe that for the decision of this case, it is unnecessary to express a final opinion upon most of these questions.
4. The Indian Majority Actfixing 18 years as the age of majority says in Section 2: '.Nothing herein contained shall affect the capacity of any person to act in the following matters:-(a) marriage, dower, divorce and adoption:' We have, therefore, to turn to the Hindu Law as to the age of capacity of a person to make a valid adoption. The age of majority for both males and females according to Hindu Law, in my opinion, commences at the age of 16 (Praptetu Shodase Varshe), that is on the completion of the fifteenth year. See Methoormohun Roy v. Soorendro Narain Deb 1 C.K 108 and also Madhuspdhan Manji v. Debt Govinda Netvgee 1 B.L.R. 49 Though the parents can give a girl in marriage before she completes her fifteenth year, the real and final marriage in the days of the old Hindu Law took place when both bride and bridegroom were majors over 15 years of age. Even when the damsel becomes 'marriageable', that is has attained her 15th year, she is recommended in Chapter 9, Sloka 90 of Manu, to wait three years before she chooses for herself; ever that: is only a moral precept as is shown by the next Sloka 91, which says that she does not commit any offence if she chooses her bridegroom after she attains her marriageable age. The gloss of 'eight years' in Sloka 88 of Mahu is that of the ingenious commentator and is not in the text. (See also Sloka 93, which says that the father's dominion ceases when the damsel is toi full marriageable age.) In the Privy Council case of Jumoona Dassya v. Bama-soondari Dasiya 25 W.R. 235 also, it is said that a male youth of the age of 15, of 'the full age of adolescence', is regarded as having Attained the age of discretion according to Hindu Law and capable of adopting. I do not think that Mr. Justice Mitter in Rajendro Narain Lahoree v. Sooroda Soomdnree Dabee 15 W.R. 548 intended to State that even before 15, a male Hindu could adopt, and if he meant it, I respectfully dissent from that Opinion. 1 am Also clear that, according to Hindu Law, a widow has not got the legal discretion to adopt a proper boy to her husband before she finishes the 15th year of her age. The obiter dictum also in Ranganayakamma v. Alwar Setti 4 Ind. Dec. 861 is that a widow of 13 years was not possessed of such discretion. There is nothing in that judgment to indicate that she is capable of exercising such discretion before she completes her 15th year. The Privy Council having held in Amrito Lal Dutt v. Surnomoye Dasi 27 Ck. 996 .Sar. P.C.J. 14 Ind. Dec. 652 that the only person Who could make ah adoption 16 her hustband is the widow, I am inclined to hold that the obiter dictum in Ranganaya-kamma v. Alwar Setti 4 Ind. Dec. 861 that her discretion could be replaced (when she is less than 15) by her guardian's intelligent and disinterested advice, cannot be supported. Apart from the decision of the Privy Council also, T am Clear on the Hindu Law that it is only the widow's discretion exercised after she attains majority and is thus capable of legal discretion in civil matters that can validate the adoption made by her to her husband. I am further of opinion that the dictum in Sri Rajah Venkata Narsimha Appa Row v. Sri Rajah Rangayya Appa Row 29 M.k 437 (the decision in which as I said was reversed by the Privy Council on another point) that an adoption under coercion may be ratified just as a contract under coercion can be ratified is not, with the greatest respect, sustainable as the act of adoption is not an act in the nature of a contract and the validity of an act changing the status of a person cannot be made to remain in suspense at the option of the acters in the transaction. The question of coercion and voidability again does not arise in the present case. It is not alleged that the adoption of Viyyammal was brought about through coercion and hence is voidable, but the contention is that she was incompetent to give a valid legal consent to take a boy in adoption and to accept the gift made of a boy in adoption to her husband having then not attained the legal age of discretion according to the Hindu Law. The analogy applicable (if analogy from the law of contract is at all legitimate) is rather that of a contract made by a minor than that of a contract made by a major under coercion.
5. Even assuming for the sake of argument (a) that Viyyammal's guardian's advice, if disinterestedly given, could supply the place of her own consent and discretion, (b) that the Hindu Law does not require her to have passed her 15th year before she could make a Valid adoption, I must hold, on the finding that she Was not asked her consent at all and that her guardian's advice was not disinterested, that the adoption was wholly invalid and would not be ratified. I am also dear that if her consent was an indispensable requirement under her husband's Will, her guardian's advice cannot be substituted for it. Where the widow was directed to adopt a particular boy by her husband and she had no discretion at all in the Matter, then it may be that she might have validly adopted that particular boy even though she was less than 15. See Mondakini Dasi v. Adinath Dey 9 Ind. Dec. 47.
6. Before concluding, I should like to fortify myself with the opinions of the two text writers (whom I consider as the best Sanskritists among English knowing Hindu Lawyers) on the questions of minority and the age of competence to adopt. Jogendra Ohunder Ghose says in his book on Hindu Law at page 851: 'There is a divergence among Bengal and Benares writers about the age of majority under Hindu Law. The former says that it is the beginning and the latter that it is the end of the I6th year. The text of Angira shows that the Bengal writers are right.' And then he quotes at page 855 texts of Angira, Manu, Vishnu, Sankha, Lakhita, Narada and Brahaspati, which, read as a whole, clearly establish that till the end of the l5th year (Una Shodesa) a person is a bala and then become a major on entering the 16th year. At page 584 the learned author says:-' The Privy Council have held that a minor of the age of 15 or 16 can give a Valid permission to his wife to adopt. Mr. Maybe has interpreted the judgment of Mr. Justice Mitter on this matter to hold that a toy between the years of 10 and 16 can adopt. But the act of taking in adoption is not Only a religious act but a legal transaction (vyavahara) and one who has not attained the 16th year is incapable of validly entering into such a transaction under the Hindu Law. (See Narada, XIJI, 32 to 36).' I shall now quote a few paissages on the Hindu Law of adoption, Tagbre Law Lectures, 1888, by Golap Chandra Sarkar Sastry, M.A., B.L. At page 207 e.i., seq. that learned author says:- 'An important question arises whether there is any limit as to the minimum age under which a person should not be permitted to adopt. The question is beset with considerable difficulty in consequence of there being no express rule of Hindu Law on the matter; and the solution of ft must, therefore, depend upon general principles of law and analogies.' 'It is worthy of remark here that as adoption imitates nature, the relative age of the adoptor and the adoptee should be such that the one may be looked upon as the son of the other. Accordingly it was required by Roman Law that the adoptor should be older than the person adopted by full puberty, that is, 18 years. The same thing appears to be implied by Saunaka's text, which Say3 that the boy adapted should bear the reflection of a son, though it has been explained by Nanda Pandita in quite a different way. Be says that the boy should be one who is capable of being begotten on his natural mother by the adoptive father. This explanation is, no doubt, given for a different purpose but it has also an important bearing on this question. Judged by this test an adoption by a minor appears most unreasonable.' 'The boy adopted is entitled to become an heir not only of the adoptor but also of his relations and to become his co-parcener under the Mitakshara school. Therefore, the same reasons that require majority of a man for his competency to bequeath his property by a Will, apply with greater force to an adoption; for both are acts requiring judgment and reflection.' 'The religious duty of adoption attaches to a married man failing to get male issue. And regard being had to the provisions of the Codes, relating to the religious duties in the successive stages of life, there cannot be any doubt that a man cannot contract a marriage during his minority without a breach of religious duties. He is to commence the study of the sacred literature at the 8th year, (Manu II, 36), to prosecute his studies for a period at the lowest of 12 or 9 years (Manu III, 1) and after the studentship is over, he is to become a householder by marrying a damsel before her puberty. He may, on the lowest calculation, get a son at the age of 20, and failing to get one, may adopt. It follows, therefore, that religious considerations can by no means be put forward for supporting an adoption by a minor.' 'There is nothing to be found in the Shastras contemplating marriage by a man in his minority. The Hindu Law does nowhere provide guardianship of a male for the purpose of his marriage. On the other hand, its provisions on the subject show that a man is to choose his own wife and to maintain and protect her himself. A perusal of the prescribed ceremonial law of marriage cannot leave any doubt on the mind that the bridegroom passing through the rites must be a grown-up man of mature understanding. Manu ordains, a man aged 80 years may marry a girl of 12 years; or a man of 24 years a damsel of 8; but if he finishes his studentship earlier, let him marry earlier.' Whatever interpretation you may put upon this passage, it shows beyond the shadow of a doubt that the marriage of men during minority cannot be justified on religious ground's. Far less can an adoption by a minor be supported by religious considerations,' At page 249 in the same work it is said: ' An act of adoption by a widow, which she is not legally bound to perform, which is not conduoive to her spiritual welfare' (as a widow may attain to heaven by practising religious austerities though destitute of male issue') 'but which is highly detrimental to her temporal interests by causing divestment of her estate, must, in order to be legally binding on her, be shown to be done by her as a perfectly free agent.' 'When an adoption by a young widow is set up against her, the Court will expect clear evidence that at the time she adopted, she was fully informed of those rights and of the effect of the act of adoption upon them.' Regard being had to the above principles, it appears to be clear that an adoption by an infant widow, if not ab initio void, is voidable in law.' To hold that an adoption in which an infant widow is caused to take a part mechanically is valid in law, would be legalizing a pious fraud; for it must virtually be the act of those under whose custody the infant widow may be placed, and who abuse the authority they possess over the widow by making her to adopt when she is incapable of understanding the effects of the act on her own rights, apprehending that she may refuse to do so, after attaining majority, being influenced more by her personal interests than by the pious duty of adopting a son to her deceased husband. A Bombay Sastri gave his opinion that a widow while under puberty cannot adopt. (See Steele's Law and Customs, page 48.) The reason for the rule may be that she is incompetent to bring forth a son then, an adoption by a woman being supposed to be analogous to the production of a son'. Then the author refers to the absurdity of the idea of a girl having a fictional son when she is naturally incapable of having a real son. Though I have quoted at length these two writers to support my views as against the views in Ranganayakamma v. Alwar Setti 13 M.k 214 : 4 Ind. Dec. 861; Rajendro Narain Lahoree v. Saroda Soonduree Dabee (9) and Sri Rajah Venkata Narasimha Appa Raw v. Sri Rajah Rangayya Appa Row 29 M.k 437 I think, on the facts found in this case by both the lower Courts, that there is no valid adoption even if the dicta found in these eases are accepted in their entirety. I would, therefore, allow the appeal and restore the deoree of the District Munsif with costs here and in the lower Appellate Court.
Oldfield, J.
7. I agree with the conlusions reached in my learned brother's judgment, which I have had the advantage of reading. But I prefer to rest my decision on narrower grounds.
8 .Plaintiff sued 2nd to 8th defendants for possession of certain properties, alleging that he held them on lease granted by the guardian of 1st defendant, alleged adopted son of one Subbarayudu. Second to eighth defendants, who claim under Subbarayudu, now deceased, denied that 1st defendant had been validly adopted. The adoption is said to have been made by Viyyammal, widow of Subbarayudu, in pursuance of a permission to adopt contained in his Will. First defendant is Viyyamma's brother. The first question is whether 1st defendant had been validly adopted, as he alleges, in 1907 before the plaintiff's lease in 1912.
9. In 1907 Viyyammal was aged between eleven and twelve and I respectfully adopt my learned brother's reasons for holding that for the purpose of adoption she was still a minor. No clear authority having been shown for the view that with reference to any special period of minority she had attained competency to adopt at the time in question, the decisions in Monddkini 'Dasi v. Adinath Bey ; (1) and Banganayakamma v. Alwar Setti 13 M.k 214 are relevant. No doubt in each a decision as to the circumstances in which a minor widow could adopt was unnecessary since in the one the boy to be adopted was specified in the Will containing the authority to adopt and in the other the adoption was held to have been procured by coercion. But in the absence of any more reoent or direct authority, the conclusion based on these two cases must be that 'sufficient maturity of understanding to enable the widow to comprehend the nature of her act' is necessary, and further that, as this Court held in the second, there must be 'cogent evidence of her having acted under the intelligent and disinterested guidance of her legal guardian seeking bono, fide to provide for a spiritual necessity with due regard for her interest so far as it is compatible with such necessity.' I agree with my learned brother that in the present case the lower Court's findings of fact entail that the adoption in 1907 was invalid. There is more room for controversy in connection with the remainder of its judgment, in which it remanded the case in order that Viyyammal might be impleaded and a re-trial might be held with reference to the possibility of her having validated or being able and willing to validate the adoption- with effect from a date prior to plaintiff's lease. This remand will plainly be useless, if no such validation is legally possible. We have had Viyyamma, made a party to the appeal, and she supported the contentions of plaintiff and 1st defendant;
10. The question is one of some difficulty-, regarding which there is very little authority: and the value of that authority is impaired by the fact that in some cases the term ' ratification' is used loosely, apparently as equivalent to conduct which would amount to evidence that a valid adoption had been made, or to an estoppel against the denial of one. Again we clearly have no concern with such interpretations of the term as that by Lord Maenagbten in Stewart v. Kennedy (1890) 15 A.C. 75 where its use in a private letter was in question; or with cases of acceptance by one person of the acts of another, as for instance of an agent or guardian. What plaintiff requires is judicial recognition or ratification or some doctrine akin to it, as applicable to the case before us; such a doctrine in fact as is implied in the definition of ratification given by Lord Watson in the case just referred to; to quote the relevant portion of it, 'the confirmation of an imperfect obligation by the party, who was not legally bound by it.' I refer to a doctrine akin to ratification, because the accuracy of the description of an adoption as an obligation cannot be assumed. It is further material with reference to Indian Law that this definition is applicable to no power ordinarily exercisable by a minor, because a minor can incur no sort of obligation during minority, his contractual acts being void ab initio. Mohori Bibee v. Dharmodat Ghose 7 C.W.N. 411 : 8 Sar. P.C.J. 374 and Navdkoti Narayana Chetty v. Loyalinga Chetty 4 Ind. Cas. 383.
11. The case of an adoption by a minor widow is sui generis. The decisions in Monddkini Dasi v. Adinath Dey 18 C.c 69and Ranganaya-kanima v. Alwar Setti 13 M.k 214 already referred to, and that in Amrito Lal Duit v. Surnomoye Dasi 27 C.p 996 show that notwithstanding her minority, the legal act can and must be performed by her, not by her guardian on her behalf. This is borne out in the present case by the terms of the authority under which the widow professed to act, which empowered her, not only to choose the boy to be adopted, but also to decide whether there should be an adoption at ail. Does the right of independent action, conceded to the minor in this matter, place tier act on the same footing as that of an adult with reference to ratification or any similar doctrine? It seems to me that it cannot do so, where, as here, the defect in the original act, which has to be repaired, consists in the failure to obtain the guardian's disinterested advice. For though the grounds oh which such advice was insisted on by this Court in Ranganayakamma v. Alwar Setti 13 M.k 214 are not stated, that case to my mind lays down a condition precedent, which must be fulfilled before the act of the minor, a generally incapacitated person, can have any degree of validity, and does not, like the oases dealing with adult purdawashin ladies, merely lay down a rule of evidence. If the minor widow's act is ab initio totally invalid for want of independent advice, it isawftot be validated later by anything of the nature of ratification.
12. The foregoing assumes that an adult widow can validate an adoption originally imperfect by subsequent conduct. That position also, however, is in my opinion unsustainable. It is supported by one authority only Sri Rajah Vevkata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row 29 M.k 437. It is material that no one's interest was prejudioially affected in that case by the subsequent ratification in consequence of anything which happened before it, and that the lady, who made the adoption, was dead when the litigation began. And accordingly when the Court had found that during the years, for which she lived after the ceremony she fully agreed to the adoption and was anxious to establish it, it would naturally strive to uphold it. It did so very shortly on the grounds that Hindu Law did not treat an adoption as Void on account of coercion, the objection under consideration:, and that under the Law of Contract, it would be only voidable. This conclusion was reached without reference to the decisions to be cited infra and it was not disputed when the case went on appeal to the Privy Council, the judgment there proceeding on other grounds.
13. The decisions in question were given in Bombay; and no doubt they deal directly with the ratification of an imperfect adoption, not by the widow who made it but by the person, in whom the inheritance had vested and whose consent to an adoption has been held essential to its validity in that Presidency. They do not, however, turn on any merely local conception of the effect of an adoption, in so far as they are relevant for the present purpose; that is, in so far as they deal with the possibility of validation by subsequent acts or conduct. That .possibility is no doubt recognised in Fayapa Akkapa 'Patel v. Appanna 23 B.k 327where subsequent ratification by conduct or acquiescence on the part of the person!] in whom the estate was vested by inheritance is referred to, as one condition of the validity of an adoption and as an alternative to his contemporaneous consent. But it must be added with all respect that the reference to ratification was merely obiter, since none was relied on in the case before the Court, and that it is hardly reconcilable with the marked insistence on the contemporaneous character of the consent to be required in the portion of the judgment in which consent is dealt with. It is significant that of the oases relied on by Ranade, J., as authorising ratification, three were (evidently cases of estoppel and the fourth, Rajendro Naih Holdar v. Jogendro Nath Banerjee 14 M.I.A. 67 was decided mainly with reference to the Conclusion, based inter alia on the conduct of members of the family, that the 'Will containing the authority to adopt was genuine; and it is, therefore, possible that the learned Judge referred loosely to ratification as covering estoppels, which debarred the party from denying, or conduct, which would establish against him, a consent when the adoption was made. This interpretation of the judgment is supported by the absence of any attempt to reconcile the portion of it relating to ratification with the previous Pull Bench decision Vasudeo Vishnu Manohar v. Ramchandra Vinayak Modak 22 B.k 551 in which Ranade, J., bad concurred, though on grounds of his own. His colleagues held that in the words of Farran, C.J. 'The adoption in question must have been either valid or invalid at the time it took place and its validity could not depend on the subsequent action of one of the persons, in whom the estate had vested and who was alleged to have consented later.' As Fulton, J., observed, there was at that date no authority for holding that subsequent assent could validate an adoption, which was not valid when made. I am not able in the circumstances already stated to accept the later Madras decision above referred to, as conclusive in favour of an application of the doctrine of ratification, which appears to be objectionable on its merits. I, therefore, concur with my learned brother in deciding against it.
14. The result is that the appeal is allowed with costs here and in the lower Appellate Court and the decree of the District Munsif restored.