JUDGMENT
Norman Macleod, Kt., C.J.
1. The plaintiff sued to have it declared that defendant No 1 had not taken defendant No. 2 in adoption and that if taken, the adoption was invalid, that defendant No 1 was not competent to make alienations which would be valid beyond her lifetime, and that such alienations did not bind her reversioners. A pedigree of the family for the purpose of this suit may be set out as follows :-
Bhimraddi
|
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| | | | |
Somaraddi Adiveppa Venkappa Shaaawa Ningawa
= Bhimawa =Hanmawa (died 1902) (died 1901) |
| Deft. 1. = Chinnawa |
Huohappa Deft. 6. Venkappa
(died May 1903) Piff
2. The first defendant Hanmawa adopted a son, who is the second defendant. Chinnawa, defendant No. 6, adopted also a son who is not made a party to the suit. The trial Judge held that the adoption of the second defendant by the first defendant was invalid, and as the alienations by defendant No. 1 were not proved to have been for necessity, the plaintiff was entitled to the declarations sought.
3. The first defendant contended that the adopted son of Chinnawa was a necessary party to the suit, and that the plaintiff was not entitled to file his suit as he was not the next rever-sioner,
4. The Judge on this question held that:
As defendant No. 6 had herself made an adoption she was not in a position to Bay that defendant No. 1 who was in the same boat with her could not make an adoption. Hence in this case the next reversioner, i. e. defendant No. 6, was precluded from suing defendant No. 1 by her own act or conduct viz. the adoption by defendant No. 6. Hence plaintiff, a remote reversioner. was entitled to sue.
5. He also held there was no evidence as to collusion between defendants Nos. 1 and 2 and defendant No. 6. On appeal the Judge said:
It is not, at this moment, possible to say who will ho the nearest roversioner when the estate ultimately reverts. Future contingencies cannot be declared. This much however to clear. Shaaawa’s son has a hope of succession. Adiveppa’s adoptive son is interested to deny his right. Shasawa’s son can therefore come within the ambit of Section 42, Specific Relief Act. fchaaawa’s son can sue for a declaration. This is not the place to consider the position of Cbinnawa’s adoptive son. The plaintiff has not asked for any declaration about this adoption, and there is no reason why he should. I must not however be understood to accept the proposition that Chinnawa’s adoption has conferred upon her adoptive son an incontestable right, or a right of any kind to the revereioner of Huchappa’s estate. The appellant’s pleader found it impossible to contend that Hanmawa could by adoption confer any title to her nephew’s estate. Chinnawa’s position seems to be indistinguishable from the position of her sister. With Ohinnawa’s adoption I have however at this time no concern except this. Chinnawa’s adoption of a son does not debar plaintiff from suing for a declaration that Hanmawa’s adoption confers no title to Ituohappa’a estate.
6. It will be seen from the pedigree that Huchappa was the last male holder. He died on May 6, 1903. The inheritance then went to his mother Bhimawa who died on September 26, 1903. Hanmawa and Chinnawa, the widows of Adiveppa and Venkappa, then succeeded to a life estate of the property under the ruling established in Lulloobhoy Bappoobhoy v. Cassibai (1880) L.R. 7 I.A. 212. If their husbands had been alive, they would have succeeded absolutely to the estate as tenants-in-common. The position of the widows of two Gotraja Sapindas succeeding under the ruling I have mentioned has not been clearly laid down as far as I know in any of the reported cases.
7. It was contended for the appellants that they each took a life estate in one half of Hucbappa’s property. So that when one died the reversion of that half would fall to the other, and on this contention is based the argument that as Venkappa is not the nearest reversioner to the half shares held respectively by Hanmawa and Chinnawa, he cannot validly sue for the declaration he asks for. I doubt very much whether that is the true position, It would follow, if it were correct, that Venkappa would be precluded until the death of one of the widows from contesting any alienation by either of them.
8. But, in this case, we have this further complication that both of them have adopted sons. Under the decision in Datto Govind v. Pandwang Vinayak (1908) I.L.R. 32 Bom. 499 : S.C. 10 Bom. L.R. 692 those adoptions are invalid. It is clear they are invalid to this extent that a widow of a Gotraja Sapinda taking only a life estate cannot by an adoption defeat the rights of the next reversioners. whatever rights the adopted son may have against the estate of his adoptive father. There seems to be no reason why such an adoption should not be good so as to enable the adopted son to succeed to his father’s estate, though it would not entitle him to succeed to the estate in which his mother had a life interest as the widow of a Gotraja Sapinda.
9. In any event, we think, in the circumstances of this case, both widows having adopted, and HO having attempted to defeat the rights of Venkappa, who would certainly be in the position of the next reversioner on the death of both the widows, defendant No. 1 cannot object to the plaintiff’s suit as at present framed.
10. We think, therefore, that the decision of the District Judge was in effect correct, but the declaration in the decree, that the adoption of defendant No 2 is invalid, should be amended by adding the words “SO far as it purports to give the second defendant any interest in the estate of Huchappa.” The appeal . will be dismissed with costs.
Coyajee, J.
11. I am of the same opinion.
