10 December 1954
Supreme Court


Case number: Appeal (civil) 105 of 1953






DATE OF JUDGMENT: 10/12/1954


CITATION:  1955 AIR  206            1955 SCR  (1)1135

ACT: Hindu  Law-Adoption-Widow’s power to adopt-When  such  power terminates.

HEADNOTE: It  is  well-settled according to Hindu Law that  a  widow’s power  to  adopt comes to an end by the interposition  of  a grandson  or the son’s widow competent to continue the  line by adoption. The  mother’s authority to adopt is not extinguished by  the mere fact that her son had attained ceremonial competence. The  power  to adopt does not depend upon  any  question  of vesting or divesting of property. The decision of the Judicial Committee of the Privy  Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil (L.R. 70 I.A.  232)  is  not sound in so far as  it  relates  to  the properties inherited from collaterals prior to adoption.  In respect of such properties the adopted son can lay no  claim on the ground of relation back. Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955]  1 S.C.R. 1), followed. Amarendra  Mansing v. Sanatan ([1933] L. R. 60 I.  A.  242), explained. Anant  Bhikappa Patil v. Shankar Ramchandra  ‘Patil  ([1943] L.R. 70 I.A. 232), not relied on in part. Bhoobun  Moyee v. Ram Kishore ([1865] 10 M.I.A. 279);  Pudma Coomari  v.  Court  of  Wards  ([1881]  L.R.  8  I.A.  229); Thayammal  and Kuttisami Aiyan v. Venkatarama Aiyan  ([1887] L.R.  14 I.A. 67); Tarachurn v. Suresh Chunder ([1889]  L.R. 16 I.A. 166); Ramkrishna 1136 Ramchandra  v. Shamrao ([1902] I.L.R. 26 Bom.  526);  Madana Mohana  v.  Purushothama  Deo ([1918]  L.R.  45  I.A.  156); Vijaysingji v. Shivsangji ([1935] L.R. 62 I.A. 161);  Bapuji v  Gangaram ([1941] I.L.R. Nagpur 178); and Prem Jagat  Kuer v.  Harihar  Bakhsh  Singh ([1945]  I.L.R.  21  Lucknow  1), referred to.



JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 105 of 1953. Appeal by Special Leave granted by this Court’s Order  dated the 24th September, 1951 from the Judgment and Decree  dated the  2nd  day  of  September, 1949  of  the  High  Court  of Judicature at Bombay in Appeal No. 274 of 1948 from Original Decree arising out of the Decree dated the 30th day of July, 1946  of the Court of Civil Judge, Senior Division at  Hubli in Special Suit No. 56 of 1944. K.   R. Bengeri and Sardar Bahadur for the appellant. S.   B.  Jathar and I. N. Shroff for respondents Nos.  3,  4 and 5. 1954.  December 10.  The Judgment of the Court was delivered by MEHR  CHAND MAHAJAN C. J.-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". The situation in which this question arises can properly  be appreciated by reference to the following genealogy: 1137                                 Dyamappa                                    I -----------------------------------------------------------      I      I Kalasappa      I      I Krishtarao Radhabai=Gangabai (deft.2)                          (Deft.1) (Senior widow)                     (Junior window)                                      |  Gurunath                                      |  (Appellsnt adopted                                      |   by Gsngsbai on      |                               |   18-11-53)      |                               |      |                        Dattatraya (son) ------------------               (died 1913) |                |            =Sundarabai (died after |                |               her husband in 1913) Kamalabai   Yamunabai (Resp.1)      (Resp.2)             |                                    |                                    |                     ------------------------------------                     |                                 |                     |                                 |                    Kalasappa                     Jagannath                   (predeceased                  (died 1914)                    Dattatraya) ----------------------------------------------------------------                         Girimaji                            |                        Hanamanta                            |                            | ------------------------------------------------------



|                                                    | |                                                    | Malhar                                            Ganesh (Resp.3)                                         (Resp.5) Venkatesh                                       Hanamant (Resp.4)                                        (Resp.6) 1138 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 and 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 raised the problem which we are called upon to solve. On the 15th of March, 1944 the appellant instituted the suit out  of  which this appeal arises 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 Dattatraya 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  plain- tiff. The  trial  judge  upheld  the  defendants’  contention  and dismissed   the  plaintiff’s  suit.   The  factum   of   the plaintiff’s 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 adop- tion.  That perhaps would have been the simplest way to  end the dispute.  Against the decision of the High                             1139 Court  this  appeal in forma pauperis is now  before  us  by special leave. 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. A  brief reference to -the different decisions of the  Privy Council is necessary for a proper appreciation of the  state of law on this subject at the present moment. The two leading cases on this point are the decisions of the Privy  Council arising out of the adoption made by  Shrimati Chundrabullee and decided in 1876 and 1878.  The judgment in the  first  of  these cases, i.e. in Bhoobun  Moyee  v.  Ram Kishore(1)  was delivered by Lord Kingsdown.  What  happened there was that one Gour Kishore died leaving a son  Bhowanee and  a  widow, Chundrabullee, to whom he gave  authority  to adopt in the event of his son’s death.  Bhowanee married and died  at  the  age  of 24 without  issue,  but  leaving  him surviving his widow Bhoobun (1)  (1965] 10 M.I.A. 279. 146 1140 Moyee.  Chundrabullee then adopted Ram Kishore.  Ram Kishore brought a suit against Bhoobun Moyee for the recovery of the estate.   The  Privy  Council held that  the  claim  of  Ram Kishore  failed  on the ground that even if he had  been  in existence  at the death of Bhowanee  he could  not  displace the  widow of the latter.  It was further held "that at  the time  when Chundrabullee professed to exercise her power  of adoption, the power was incapable of execution on the ground that  Bhowanee  had married and left a widow as  his  heir". The following quotation from the judgment of Lord  Kingsdown may be cited as indicating the reasons for the decisions: "In  this case, Bhowanee Kishore had lived to an  age  which enabled him to perform-and it is to be presumed that he  had performed-all  the  religious  services which  a  son  could perform  for  a father.  He had succeeded to  the  ancestral property as heir; he bad full power of disposition over  it; he  might have alienated it; he might have adopted a son  to succeed to it if he had no male issue of his body.  He could have  defeated every intention which his father  entertained with respect to the property. On the death of Bhowanee Kishore, his wife succeeded as heir to him and would have equally succeeded in that character in exclusion of his brothers, if he had any.  She took a vested estate,  as  his widow, in the whole of  his  property.   It would  be  singular if a brother of Bhowanee  Kishore,  made such by adoption, could take from his widow the whole of his property,  when a natural-born brother could have  taken  no part.   If  Ram  Kishore is to take  any  of  the  ancestral property, he must take all he takes by substitution for  the natural-born  son,  and  not jointly  with  him........  The question  is whether the estate of his son being  unlimited, and  that son having married and left a widow his heir,  and that  heir having acquired a vested estate in her  husband’s property as widow, a new heir can be substituted by adoption who  is  to defeat that estate, and take as an  adopted  son what a legitimate son of Gour Kishore would not have taken.                             1141 This seems contrary to all reason and to all the  principles of Hindoo law, as far as we can collect them......... If   Bhowanee  Kishore  had  died  unmarried,  his   mother, Chundrabullee  Debia,  would  have been his  heir,  and  the question  of  adoption would have stood on  quite  different grounds.   By  exercising the power of adoption,  she  would have  divested  no estate but her own, and this  would  have brought  the case within the ordinary rule; but no case  has been  produced,  no decision has been cited from  the  Text- books, and no principle has been stated to show that by  the



mere  gift of a power of adoption to a widow, the estate  of the  heir  of a deceased son vested in  possession,  can  be defeated,. and divested". In the result the suit of Ram Kishore was dismissed. After  the  deaths of Bhoobun Moyee and  Chundrabullee,  Ram Kishore  got  possession  of the property under  a  deed  of relinquishment   executed   in  1869  in   his   favour   by Chundrabullee,  who herself had entered into  possession  of the  property  as mother and next heir of  Bhowanee  Kishore after the death of Bboobun Moyee in 1867.  If Ram  Kishore’s adoption  was good he was undoubtedly the next heir  to  the property.   A distant collateral however claimed the  estate on  the  ground that his adoption was  invalid.   The  Privy Council  then held that "upon the vesting of the  estate  in the widow of Bhowanee, the power of adoption of Chudrabullee was  at  an  end and incapable of execution"  and  that  Ram Kishore  had therefore no title.  This was the  decision  in Padma  Coomari v. Court of Wards(1) wherein a second  effort to  maintain the validity of his adoption  by  Chundrabullee was  made  but  without  success.  The  High  Court  in  its judgment  in  Padma  Coomari’s  case(1)  remarked  that  the decision  in Bhoobun Moyee v. Ram Kishore(2) did not  decide that Chundrabullee could not adopt on the extinction of  the issue  either  of  natural-born son or of the  first  to  be adopted  son, and that if Chundrabullee had on the death  of Bhoobun  Moyee  made the adoption and so  divested  her  own estate,, there would be (1) [1881] L.R. 8 I.A, 229. (2) [1865] 10 M.I.A. 279, 1142 nothing in the judgment of the Privy Council and nothing  in the  law  to  prevent  her  doing  that  which  her  husband authorised  her to do, and which would certainly be for  his spiritual benefit, and for that of his ancestors and even of Bhowanee  Kishore.   The learned Judges of  the  High  Court proceeded then to observe as follows: "With all respect, therefore, we imagine that Lord Kingsdown must have said by inadvertence, in reference to the idea  of adopting  a son to the great grandfather of the last  taker, that  at  that time ’all the spiritual purposes  of  a  son, according  to the largest construction of -them, would  have been satisfied’; and again, Bhowanee Kishore had lived to an age  which enabled him to perform, and it is to be  presumed that  he had performed, all the religious services  which  a son could perform for a father.  There is really no time  at which   the  performance  of  these  services   is   finally completed,  or at which the necessity for them comes  to  an end". To this Sir Richard Couch, who delivered the judgment of the Privy Council, gave a very emphatic answer in these terms: "The  substitution of a new heir for the widow was no  doubt the  question  to be decided, and such.  substitution  might have been disallowed, the adoption being held valid for  all other purposes, which is the view that the lower Courts have taken of the judgment, but their Lordships do not think that this  was intended.  They consider the decision to be  that, upon the vesting of the estate in the widow of Bhowanee, the power of adoption was at an end, and incapable of execution. And  if  the  question  had come  before  them  without  any previous  decision  upon it, they would have  been  of  that opinion.   The adoption intended by the deed  of  permission was for the succession to the zemindary and other  property, as  well as the performance of religious services;  and  the vesting  of  the  estate in the widow, if  not  in  Bhowanee himself,  as  the son and heir of his father, was  a  proper



limit to the exercise of the power". The question of limitations upon the power of the                             1143 widow  to  adopt thus stated in the Chundrabulle  series  of decisions  was again affirmed by the Judicial  Committee  in Thayammal  and  Kuttiswami  Aiyan  v.  Venkatarama  Aiyan(1) decided  in  1887  and in  Tarachurn  v.  Suresh  Chunder(2) decided in 1889. In  the  year 1902 this question came up  for  consideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra v. Shamrao(3).  There a grandmother succeeded  to her  grandson  who died unmarried andit was  held  that  her power  to  make an adoption hadcome to an end and  that  the adoption  was invalid. Chandavarkar, J., who  delivered  the judgment  of  the Full Bench, enunciated  the  principle  in these words: "Where a Hindu dies leaving a widow and a son, and that  son dies leaving a natural born or adopted son or leaving no son but his own widow to continue the line by means of adoption, the power of the former widow is extinguished and can  never afterwards be revived". This  principle  was approved and applied  by  the  Judicial Committee  in Madana Mohana v. Purushothama Deo(4) in  these words:  "Their  Lordships are in agreement with the principle  laid down  in  the  judgment  of the  Full  Court  of  Bombay  as delivered  by  the learned judge, and they  are  of  opinion that,  on the facts of the present case, the principle  must be taken as applying so as to have brought the authority  to adopt  conferred on Adikonda’s widow to an end  when  Brojo, the  son she originally adopted, died after  attaining  full legal capacity to continue the line either by the birth of a natural-born  son or by the adoption to him of a son by  his own widow". The  next  and the most important decision of  the  Judicial Committee  in  regard to this matter was given in  the  year 1933  in Amarendra Mansingh v. Sanatan(5) where there was  a departure  from  or  at least a  reorientation  of  the  old doctrine,  and stress was laid on the spiritual rather  than on the temporal aspect (1)  (1887] L.R. 14 I.A. 67. (3)  [1902] I.L R. 26 Bom. 526. (2)  [1889] L.R. 16 I.A. 166. (4)  [1918] L.R. 45 I.A. 150. (5) [1933] L R. 60 I.A. 242. 1144 of adoption, linking it up with the vesting and divesting of the  estate.  There a Hindu governed by the  Benaras  school was  survived by an infant son and a widow, to whom  he  had given authority to adopt in the event of the son dying.  The son succeeded to his father’s impartible zamindari but  died unmarried at the age of 20 years and 6 months.  By a  custom of  the family which excluded females from  inheritance  the estate  did  not  go to his mother but became  vested  in  a distant  collateral.  A week after the son’s death she  made an adoption.  It was held that the adoption was valid and it divested the estate vested by inheritance in the collateral. All the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Board.   At page 248 of the report it is said as follows: "In   their  Lordships’  opinion,  it  is  clear  that   the foundation  of the Brahminical doctrine of adoption  is  the duty which every Hindu owes to his ancestors to provide  for the  continuance  of the line and the solemnization  of  the necessary  rites.  And it may well be that if this duty  has



been  passed on to a new generation, capable itself  of  the continuance,  the father’s duty has been performed  and  the means  provided by him for its fulfilment spent: the  "debt" be  owed  is discharged, and it is upon the  new  generation that  the duty is now cast and the burden of the  "debt"  is now laid. It can, they think, hardly be doubted that in this  doctrine the  devolution  of  property,  though  recognised  as   the inherent  right  of  the  son,  is  altogether  a  secondary consideration............  that the validity of an  adoption is  to  be  determined by  spiritual  rather  than  temporal considerations;  that  the  substitution of  a  son  of  the deceased for spiritual reasons is the essence of the  thing, and  the consequent devolution of property a mere  accessory to it. Having  regard to this well-established doctrine as  to  the religious  efficacy  of sonship, their Lordships  feel  that great  caution should be observed in shutting the door  upon any  authorised adoption by the widow of a sonless man,  The Hindu law itself sets no limit                             1145 to  the  exercise of the power during the  lifetime  of  the widow   and   the  validity  of  successive   adoptions   in continuance of the line is now well recognised.  Nor do  the authoritative  texts  appear to limit the  exercise  of  the power  by  any considerations of property.  But  that  there must  be some limit to its exercise, or at all  events  some conditions  in  which  it would be either  contrary  to  the spirit  of the Hindu doctrine to admit its  continuance,  or inequitable in the face of other rights to allow it to  take effect, has long been recognised both by the Courts in India and by this Board, and it is upon the difficult question  of where  the  line should be drawn, and upon  what  principle, that the argument in the present case has mainly turned". In another part of the judgment their Lordships observed  as follows: "It  being clear upon the decisions above referred  to  that the interposition of a grandson, or the son’s widow,  brings the mother’s power of adoption to an end, but that the  mere birth  of a son does not do so, and that this is  not  based upon  a question of vesting or divesting of property,  their Lordships think that the true reason must be that where  the duty  of  providing  for the continuance  of  the  line  for spiritual  purposes which was upon the father, and was  laid by  him conditionally upon the mother, has been  assumed  by the  son and by him passed on to a grandson or to the  son’s widow,  the  mother’s  power is gone.  But if  the  son  die himself  sonless and unmarried, the duty will still be  upon the  mother,  and  the power in her  which  was  necessarily suspended during the son’s lifetime will revive". The  learned counsel for the appellant placed reliance  upon the  last  sentence  in the passage  in  the  Privy  Council judgment  quoted  above and contended that if the  power  of -the  widow which remained suspended during the lifetime  of the son could revive on the son dying sonless and unmarried, logically  the power must also revive when the son  and  his widow and the grandson and his widow all died out.  Reliance was also placed on the passage already cited in which 1146 their  Lordships laid emphasis on the proposition  that  the substitution of a son of the deceased for spiritual  reasons is  the essence of the thing, and the consequent  devolution of property a mere accessory to it and it was contended that the  grounds  on  which an outside limit  was  laid  on  the exercise of the widow’s power in the Chundrabullee series of



decisions  no  longer  survived, in view  of  the  ratio  in Amarendra’s  decision and that it having been held that  the power of adoption did not depend on and was not linked  with the  devolution of property or with the question of  vesting or  divesting  of property and could be  exercised  whenever necessity  for continuing the line arose, it should be  held that  when the son and his widow were dead and the  grandson to  whom  he handed the torch for continuing the  line  also died, the power of Gangabai to make the adoption revived and thus the adoption was valid.  This argument, in our opinion, is  not  well  founded  as  it  is  based  on  an  incorrect apprehension  of  the true basis of the rule  enunciated  in this  judgment,  the  rule being that  "where  the  duty  of providing  for  the continuance of the  line  for  spiritual purposes  which  was  upon the father and was  laid  by  him conditionally  upon the mother, has been assumed by the  son and by him passed on to the grandson or to the son’s  widow, the mother’s power is gone".  In the words of  Chandavarkar, J.  affirmed by the Judicial Committee in Madana  Mohana  v. Purushothama Deo(1) "the power having once been extinguished it  cannot afterwards be revived".  In other words the  true rule is this: "When a son dies before attaining full legal competence  and does  not  leave either a widow or a son or an  adopted  son then  the power of the mother which was in  abeyance  during his lifetime revives but the moment he hands over that torch to another, the mother can no longer take it". The contention of the learned counsel therefore that even if the second generation dies without taking steps to  continue the line the grandmother still (1)  [1918] L R. 45 I.A. 156. 1147 retains her authority and is still under a duty to  continue the line cannot be sustained. The  three propositions that the Privy Council laid down  in Amarendra’s case therefore cannot now be questioned.   These propositions may be summed up in these terms: (1)  That  the  interposition of a grandson,  or  the  son’s widow, competent to continue the line by adoption brings the mother’s power of adoption to an end; (2)  that  the  power  to adopt does  not  depend  upon  any question of vesting or divesting of property; and (3)  that a mother’s authority to adopt is not  extinguished by  the  mere  fact that her  son  had  attained  ceremonial competence. The  rule  enunciated in Amarendra’s case  was  subsequently applied  in  Vijaysingji  v.  Shivsangji(1)  and  was  again restated  and  reaffirmed as a sound  rule  enunciating  the limitations on the widow’s power to adopt in Anant  Bhikappa Patil   v.   Shankar  Ramchandra  Patil(2).   One   of   the propositions enunciated in this decision was not accepted by this  court in Shrinivas Krishnarao Kango v.  Narayan  Devji Kango(3), but that apart no doubt was cast in this  decision on the above rule. The  result  of these series of decisions is, that  now  for about  three quarters of a century the rule that "the  power of a widow to adopt comes to an end by the interposition  of a grandson or the son’s widow competent to adopt" has become a  part  of Hindu Law. though the reasons for  limiting  the power  may  not be traceable to any Shastric text;  and  may have  been differently stated in the several judgments.   It is well known that in the absence of any clear Shastric text the  courts have authority to decide cases on principles  of justice,  equity and good conscience and it is not  possible to  bold that the reasons stated in support of the rule  are



not consistent with these principles.  During the  arguments no substantial grounds have (1) [1935] L.R 62 I.A. 161.  (2) [1943] L.R. 70 I.A. 232. (3) [1955] 1 S.C.R. 1. 147 1148 been  suggested  for  holding that the rule  is  either  in- equitable or unjust or is repugnant to or inconsistent  with any  doctrine or theory of Hindu Law of adoption.   In  this situation  we are bound to hold that it is too late  in  the day to say that there are no limitations of any kind on  the widow’s power to adopt excepting those that limit the  power of  her husband to adopt, i.e. that she cannot adopt in  the presence  of a son, grandson or great grandson.   Hindu  Law generally  and  in  particular in  matters  of  inheritance, alienation  and  adoption  gives to the widow  powers  of  a limited  character and there is nothing in  the  limitations laid  down  by  the course of decisions  above  referred  to repugnant to that law.  For the reasons given above, we  are unable to depart from the rule that a widow’s power to  make an  adoption  comes  to an end by  the  interposition  of  a grandson  or the son’s widow competent to continue the  line by adoption. The  learned counsel for the appellant  placed  considerable reliance  on  two  decisions of the Indian  High  Courts  in support  of his contention and suggested that the rule  laid down in Amarendra’s case had no application to the situation that has arisen in the present case and that on the death of the  grandson  the  widow’s  power to  adopt  which  was  in abeyance  during  his  life  revived.   Reference  in   this connection was made to the decision of the Nagpur High Court in  Bapuji  v. Gangaram(1).  There a Hindu  died  leaving  a widow and his son and the son died leaving a widow only  who re-married.   It  was  held that the  power  of  the  mother revived on the re-marriage of the son’s widow.  Reliance for this proposition curiously enough was placed on the decision of  the  Judicial Committee in Amarendra’s case  as  appears from the following quotation from that judgment:  "If  the  observation  quoted from  Amarendra  Mansingh  v. Sanatan Singh(2) be understood as limited to the case  where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear  except for the (1)  (1941)  I.L.R. Nagpur 178.  (2) [1933] I.L.R.  12  Pat. 642, 658.                             1149 words  "and can never be revived" quoted from Ramkrishna  v. Shamrao(1).  Strictly the above is the true meaning of their Lordships’  words.  That amounts to nothing more than  this: that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C. That leaves at  large  what happens when the "interposition"  is  ended. Logic says that as the death of the son removes his  "inter- position"  whereupon  C’s power revives so the  death  of  D removes her interposition and so C’s power revives". In our judgment there is not only an obvious fallacy in this reasoning  but  it is based on a wrong apprehension  of  the true  reasons stated for the rule in Amarendra’s case.   The reason for the rule in Amarendra’s case was "where the  duty of  providing for the continuance of the line for  spiritual purposes  which  was upon the father, and was  laid  by  him conditionally  upon the mother, has been assumed by the  son and  by him passed on to a grandson or to the  son’s  widow, the  mother’s power is gone".  If that is the  true  reason, obviously  the duty having come to an end cannot be  revived



on  logical  grounds.  We are therefore clearly  of  opinion that the ratio of the decision in Bapuji v. Gangaram(2)  was erroneous.  The second decision to which reference was  made is  a decision of the Lucknow Court reported in  Prem  Jagat Kuer v. Harihar Bakhsh Singh(3).  The learned Judges in that case  followed the decision of the Nagpur High  Court  above quoted,    and    further   added   (though    under    some misapprehension)  that  this decision had been  approved  by their Lordships of the Privy Council.  As a matter of  fact, there was another decision reported in the same report on  a different question that had been upheld by the Privy Council and  not the decision above referred to.  The  authority  of this later decision therefore is considerably shaken by this error  and even otherwise the decision gives no  independent reasons of its own apart from those contained in the  Nagpur case. (1) [1902] I.L.R. 26 Bom. 526.  (2) [1941] I.L.R. Nag, 178. (3)  [1945] I.L.R. 21 Luck. 1. 1150 For  the  reasons  given above, this  appeal  fails  and  is dismissed, but in the circumstances of the case we will make no order as to costs. Appeal dismissed.