Divatia, J.
1. These two appeals arise out of two cross suits and there is a common question to be decided in both. The appellant claims as the adopted son of one Waman by his senior widow Bhagirathi. The claim is made against the junior widow Reshma and her daughter. The appellant's claim is resisted by the junior widow on the ground that the senior widow had passed a deed of relinquishment or release called bedavapatra on December 23, 1929, in her favour by which it was agreed that the senior widow should relinquish all her right, title and interest in half of the estate left by her husband including her right of heirship and maintenance and her right to adopt according to Hindu law in lieu of a payment of Rs. 3,000 and odd. It was stated in the deed: 'My right as senior widow as regards adoption has also been given to you by me by virtue of this deed. You may, if you like, take a boy in adoption; or you may not adopt if you like. I have no objection to that.' The deed was acted upon and the payment was duly made. Subsequently, however, the senior widow adopted the appellant on December 10, 1931, in spite of the relinquishment of her right to adopt. The junior widow's case is that after the relinquishment, the adoption is invalid and not binding against her. The plaintiff-appellant's case was that his adoption was valid, that the deed of relinquishment was passed by his adoptive mother, the senior widow, under fraud and undue influence and that it was not binding against him.
2. One suit was filed by the junior widow for a declaration that she was the sole owner of the suit property and that the adopted son had no right to recover the property from her, and the other suit was filed by the adopted son for a declaration that he was the legally adopted son of Waman and for possession of the whole of Waman's estate from the junior widow. The principal question therefore is whether the adopted son, who is the appellant in both appeals, is entitled to the suit property by virtue of his adoption.
3. The lower Court held on the evidence that there was no undue influence or fraud on the part of the junior widow, that the senior widow, who had the preferential right to adopt, had relinquished her right by the deed, which has been acted upon, that on account of such relinquishment she had lost her right to adopt a son, that such relinquishment was not against public policy, and that having passed that deed1 of her own choice, she was not entitled to resile from it and make an adoption contrary to the terms of the deed. It, therefore, decided against the adopted son in both suits and hence these appeals.
4. The finding that there was no fraud or undue influence in the execution of the deed of relinquishment has not been seriously challenged in these appeals, and it is clear on the evidence that there was neither fraud nor undue influence on the part of the junior widow. It is, however, contended on the construction of the deed that the senior widow only gave permission to the junior widow to adopt but that she did not renounce her own right to adopt, that the deed is void as being opposed to public policy, and that the right of a senior widow is not 'property' under Section 6 of the Transfer of Property Act and as such it cannot be transferred. It is also urged that the deed passed by the senior widow is not binding against the appellant as he does not claim through the senior widow but claims through his adoptive father.
5. The point to be decided in these appeals has not been the subject-matter of decision by any of the High Courts, and it is, therefore, necessary to examine what exactly is the nature of the right of adoption as between a senior and a junior widow. In the Bombay Presidency it is not necessary for a widow to have any permission of her husband or of any of his kinsmen for making an adoption, and under the latest pronouncements of the Privy Council even in a joint family a widow can adopt unless she has been prohibited by her husband. As between co-widows it has been laid down in a series of cases that a senior widow has a preferential right of adoption and that a junior widow cannot adopt without the senior widow's consent, and if she does, the adoption is invalid. The leading cases on this point are Muthusami Naicken v. Pulava-ratal I.L.R. (1921) Mad. 266 Rajah Venkatappa Nayanim Bahadur v. Renga Rao I.L.R. (1915) Mad. 772 Rakhmabai V. Radhabai (1868) 5 B.H.C.R. 181 Padajirav v. Ramrav I.L.R. (1888) Bom. 160 Driyanu v. Tanu I.L.R. (1919) Bom. 508 : 22 Bom. L.R. 390 and Ranjit Lal Karmakar v. Bijoy Krishna Kmmakar I.L.R. (1922) Cal. 582. It is, however, competent for the senior widow to waive her preferential right or give her consent to an adoption by the junior widow, and if such adoption is made, it is valid and cannot be subsequently challenged by the senior widow or by a son adopted by her. This position is conceded on behalf of the appellant. But it is contended that even if the senior widow waives her right of adoption by an agreement or gives her consent to the junior widow, she can still make an adoption so long as the junior widow has not adopted in pursuance of the consent or relinquishment, and to that extent it is open to the senior widow to resile from any arrangement under which she might have relinquished her rights. It is also contended that an absolute relinquishment is against the policy of Hindu law.
6. I will take the latter argument first. There have been cases, for instance, Suriya Rau v. Raja of Pitiapur I.L.R. (1884) Mad. 772 and others, in which it has been held that the prohibition to adopt was against public policy. But all these cases were not between co-widows but between a widow on the one hand and some other person claiming to be interested in the estate on the other hand, in which the arrangement was that the widow should not adopt with the result that the line of succession would change. It is quite clear that such an arrangement under which a widow agrees not to adopt at all or is prohibited from adopting would be against public policy, and I need not go into the reasons why it is so. But the case of co-widows does not stand on the same footing. Both the widows have got the right to continue the line by adoption, but the senior widow has a preferential right. It is contended on behalf of the appellant that the senior widow's right to adopt is exclusive and that the junior widow cannot adopt unless the senior widow does not wish to exercise that exclusive right or gives consent to the junior widow at the time of adoption.
7. In order to test this argument it is necessary to examine the source of the senior widow's right to adopt. The texts bearing on the point are to be found summarized in Rajah Venkatappa Nayanim Bahadur v. Renga Rao and Muthusami Naicken v. Pulvaratah Vignaneswara in his commentary on Yagnavalkya's text says:-
When there are several wives of the same class in matters of religion do not pass over the eldest wife and do not employ either the second or the third,
and the commentary of Katyayana is:-
Let him who has many wives employ one of equal class in the case of the sacrificial fire, and in attendance on himself; but if there be many such let him employ the eldest in those duties, provided she be blameless.
8. Almost all the cases have construed these texts to mean that both the widows have the right to adopt but the senior widow has got a preferential right. There is an observation in Padajirav v. Ramrav to the effect that the superior right of the elder widow is based upon her being the patni wife, and as such entitled to take part with her husband in all religious ceremonies. There are other observations also in the judgment which might mean that the senior widow has an exclusive right to adopt, although the junior widow has power to adopt with the senior widow's consent. This observation relating to the senior widow alone being regarded as the patni has been discussed in Rajah Venkatappa Nayanim Bahadur V. Renga Rao I.L.R. (1915) Mad. 772 where the grammatical meaning of the word patni is considered, and the authority of Vignaneswara is cited to show that all the wives were to be regarded as patnis and as such entitled to share in the inheritance. I share the doubt which is expressed in that case as to whether it would be correct to say that the senior wife alone was entitled to be regarded as patni and as such exclusively entitled to adopt. In our Presidency all widows have got a right to adopt without any authority unless there is a prohibition from the husband: Yadav v. Namdeo (1921) 24 Bom. L.R. 609 It is a question of some nicety whether in our Presidency the widow's power is inherent or delegated from her husband. But that point does not arise for decision here. Whether the right of co-widows to adopt is in its origin inherent or delegated, it certainly exists in both in absence of a prohibition from their husband. The senior widow has a preferential right which is capable of being, waived in favour of the junior widow. That being so, it is difficult to see why a transfer by way of relinquishment of the right by the senior widow is favour of a junior widow, who has also got the right to adopt and thus continue the line of her husband, can be regarded as against public policy. The husband can deprive the senior widow of her power of adoption and confer it on the junior widow. So also the junior widow can adopt even during the lifetime of the senior widow where the husband dies leaving only a son by the junior widow and that son dies during the lifetime of the latter widow who succeeds as her son's heir. In that case even during the lifetime of the senior widow the junior widow can adopt because the property has become vested in her: see Anmdibai v. Kashibai I.L.R. (1904) Bom. 461 : 6 Bom. L.R. 464. I am referring to this case because it has been contended on behalf of the appellant that even after her relinquishment the senior widow continues to be a widow of her husband and as such there is a religious duty cast on her to make an adoption and continue her husband's line. In the circumstances of the case of Anmdibai v. Kashibai the senior widow does continue to be the widow of her husband and still she has lost her right of adoption. It may be said that that case, however, stands on a different footing from the present case where the junior widow has not succeeded as an heir to her dead son. But if the senior widow does retain her right to adopt in spite of a relinquishment of her right (so long as the junior widow has not actually adopted) because she continues to be her husband's widow, why should her right be at all extinguished when the estate is held by the junior widow as her son's heir? The relinquishment by the senior widow of her right to adopt would not put an end to her husband's line. The only effect is that instead of the senior widow it is the junior one who exercises the right of adoption and continues the line if she likes. I do not see any particular sanctity attached to an adoption by the senior widow as opposed to one by a junior widow. It is true that recent decisions of the Privy Council have laid stress on the religious aspect of adoption which is considered more as a matter of religious duty than a legal right connected with property. But that does not necessarily involve the result that the senior widow's power of adoption cannot be validly relinquished in favour of the junior widow or that she is entitled to resile from such relinquishment on the ground of public policy.
9. The next argument is that the senior widow cannot lose her right of adoption under a contract of relinquishment as adoption is a question of status and not of contract, and that in spite of the contract the senior widow can adopt on general principles of Hindu law by withdrawing her consent and making an adoption by herself so long as the junior widow has not made any adoption. On the other hand, it has been contended on behalf of the respondent that there is no question of any transfer of an absolute right in this case but only a relinquishment of a preferential right, that neither widow is under any obligation to adopt and a widow may not adopt even though directed to do so, and that therefore the relinquishment of her right by the senior widow under an agreement which is otherwise enforceable operates as an extinction of her right to adopt even though the junior widow does not make any adoption.
10. The learned advocate on behalf of the appellant principally relies on the case of Padajirav v. Ramrav. The decision in that case is that the elder widow has not merely the right of selection of the son to be adopted but she has the right to adopt, and that even if she gives her consent, she has a locus penitentce of which she may avail herself by changing her mind. The facts of that case were different, and the decision does not exactly touch the point to be decided here. Three of the widows, including the senior widow, had unanimously selected the boy to be adopted. Subsequently the senior widow withdrew her selection and then the junior widow adopted that boy without the consent of the senior widow, and the question, therefore, was whether the adoption by the junior widow without the consent of the senior widow of a boy, who had previously been selected by all the widows for adoption, could be supported against the wish of the elder widow, and on those facts it was held that there was no complete adoption until the mutual acts of giving and receiving the child were accomplished, and until that took place there was necessarily a locus penitentice for the senior widow of which she may avail herself, although contrary to the wishes of the other widows,: by changing her mind and selecting another child. There was no executed agreement or arrangement in that case by which the senior widow had relinquished her right to adopt in favour of the junior widow. I do not think, therefore, that the observations about locus penitentice in that case would be applicable to the facts of the present case.
11. The question really is whether once the senior widow waives her preferential right of her own free will and gives consent to the junior widow to adopt under an agreement which has been acted upon, she should be allowed to resile from it by her arbitrary will. If such relinquishment is not against Hindu law or public policy as I have shown above, it can be the subject-matter of a valid agreement between the widows and enforceable as such irrespective of the fact that the junior widow has not made an adoption under the right which she gets by the senior widow's relinquishment. It has all the legal incidents of a valid and binding contract; especially when it is not merely executory but executed. Even in the case of Padajirav v. Ramrav it is observed that until the elder widow waived her preferential right to adopt, her right was exclusive, and so also the observation in the case of Mathusami Naicken v. Pulvaratal is to the effect that unless the senior widow waives or relinquishes her preferential right and authorises the junior widow to adopt, an adoption made by the latter without the consent of the senior widow was invalid. So that the power to adopt could be relinquished in favour of a person who has also the power to adopt and thus continue the line.
12. Whether this relinquishment takes place with or without consideration is to any mind immaterial, and there is no question of the arrangement by which the senior widow relinquishes all her rights in her husband's family, including her right of adoption, by accepting a lump sum in consideration; of such relinquishment being regarded as a corrupt one and as such against public policy, if such arrangement is arrived at by the free consent of the relinquishing widow. If the right is waived or passed on in favour of the junior widow, it is waived once for all and cannot be revived. There is nothing in Hindu law against the extinguishment, of such right, as the power of continuing the line is still there. It only passes on from one widow to the other. In such cases it cannot be said that though the senior widow may be barred by personal estoppel, her adopted son would not be bound by such relinquishment. If the senior widow has no power to adopt left in her on account of a valid relinquishment, there can be no legal adoption by her, and there is, therefore, no question of her adopted son acquiring the status of a son at all.
13. For these reasons I am of opinion that the decision of the lower Court that the appellant's adoption is invalid is correct, and both the appeals should, therefore, be dismissed with costs.
Barlee, J.
14. The principal question in this case is whether a Hindu widow has an inherent power to adopt a son to her deceased husband, or whether, in making an adoption, she is exercising a power which has been delegated to her by him.
15. There is no direct text on the subject and we have to choose between the fiction that the power; to adopt is analogous to the physical power of bearing a son to her husband, and the fiction that it must be assumed in the absence of a prohibition from her husband that she has been directed by him to make an adoption.
16. Authority for the former view has been sought in an obiter dictum of Sir Lawrence Jenkins in the case of Lakshmibai v. Sarasvatibai I.L.R. (1899) Bom. 789 : 1 Bom. L.R. 420 where the learned Judge said (p. 794):-
It has been argued... that a widow's power to adopt does not rest on any delegation...but is her inherent right,.... The commentaries, which prevail in this Presidency, seem to me strongly to favour the view,... In the view I take... it is not necessary to decide the point, but the inclination of my opinion (though I reserve to myself the right to reconsider the matter,...) is that in this Presidency the widow's right is inherent....
17. This passage was quoted by the Privy Council in Yadav v. Namdeo, where their Lordships had to consider the question whether the power of a Hindu widow to adopt depends on whether her husband was separated or unseparated and on whether his property was vested in her as his heir. But their Lordships did not adopt Sir Lawrence Jenkins' dictum as a part of their argument, nor did they comment on it, I am unable, therefore, to look on it as an authority, more especially as the learned Judge merely spoke of the inclination of his opinion, and obviously did not want it to be looked on as authoritative. On the other hand there is the direct authority of Ranade J. for the other view in Verikappa Bapu V. Jivaji Krishna I.L.R. (1900) Bom. 306, Bom. L.R. 1101. He said (p. 311):-
The text writers on the Dattaka Law permit a man to adopt a son not only when he has no male issue born to him, but also when such male issue dies. The husband can confer this same double power on the widow, and though in this Presidency the husband's expressed permission is not required by the widow, the mother who adopts a son, because the son born to her is dead... really exercises the authority conferred on her by implication by her husband.
18. This, according to Sarkar Shastri (Edition of 1933), p. 220, is the modern view, and it is accepted by Trevelyan and West and Buhler (Edition 1919, p. 857). In my opinion it is the view which we ought to accept as it involves a far less violent fiction than that on which the 'inherent power'.argument has to be based, and is more reasonable. It is difficult to understand why a woman who has no inherent power to adopt while her husband is living should be supposed to be endowed with that power by the fact of his death, and granting that this be the correct view, it is 'not easy to explain the absence of the power when her husband has prohibited an adoption. It is simpler to base adoptions by a widow on delegated authority, which certainly is the basis for an adoption by a wife.
19. In this view of the law appellant must fail. A transfer of the right of adoption by a senior widow to her junior is recognized by Hindu law and this was a transfer and not merely a contract to convey. There is no authority for the proposition that she can revoke the transfer-whether it be looked on as a gift or sale. The case of Padajirao v. Ramrao I.L.R. (1888) Bom. 160 which the learned advocate has cited, was decided on different facts. A senior widow had resiled from a promise to adopt, but had not transferred her right. It is clear, too, that the appellant cannot succeed on the ground of public policy, for a transfer by a senior widow is recognized by Hindu law). In fact there seems to be no principle of Hindu law which runs counter to the ordinary rule that property sold or given away cannot be reclaimed at the will of the transferor.
20. For these reasons I agree that the appeal fails.