JUDGMENT
Broomfield, J.
1. This is an appeal by the defendants in a suit brought by the respondent to recover possession of certain land.
2. The land at one time belonged to two undivided brothers, Balagouda and Basagouda, who formed a joint Hindu family. Basagouda died in the year 1907 and soon after his death Krishnabai, one of his two widows, adopted a boy named Iragouda who died in or about the year 1911. The plaintiff claims to have been adopted by Krishnabai on April 29, 1931, and he claims also that by that adoption he became a coparcener with Balagouda and on the death of Balagouda, which took place in August, 1936, he became the sole surviving coparcener. In this suit he seeks to set aside two gifts which were made by Balagouda in July, 1934. These gifts were in favour of two daughters of Balagouda, who are the defendants in the suit. He also. made, gifts to his other two daughters, one of whom is the wife of the plaintiff, but; we are not concerned in this suit with those transactions. It is: common, ground that if the adoption of plaintiff is proved and valid, the gifts are invalid and plaintiff is entitled to recover the property gifted.
3. The defendants denied the adoption. They also alleged that it was invalid on the ground that Krishnabai was the junior widow of Basagouda and could not adopt without the consent of the senior widow Parvatibai. It was further contended that Basagouda had prohibited his widows from adopting anybody in a will which he made shortly before his death.
4. The trial Court found that the adoption of plaintiff is proved and valid as Krishnabai was Basagouda’s senior widow and as there was no prohibition of the adoption. The suit was therefore decreed.
5. In this appeal the factum of the adoption has not been challenged. The points urged on behalf of the appellants are (1) that Krishnabai was the junior widow and Parvatibai the senior widow did not consent to the adoption, (2) that the adoption was impliedly prohibited by Basagouda’s will, (3) that the plaintiff is bound by an award decree in certain litigation between Balagouda and Krishnabai in 1908 by which Balagouda was declared to be the owner of the estate after the death of Krishnabai.
6. On the first question whether Krishnabai was Basagouda’s senior widow the evidence is conflicting and not very satisfactory, but we see no reason to differ from the decision of the trial Court. The most important piece of evidence on which the learned trial Judge has, quite rightly, strongly relied is. a statement made by Giriappa, the father of Parvati, in the year 1908. In that year Krishnabai made an application to obtain a succession certificate on behalf of her adopted son Iragouda and Giriappa was examined in those proceedings. He said:
My daughter’s name is Parvati. She is the second wife of Basagouda., She is about twenty or twenty-two years old. The; name of the first wife of Basagouda , is Krishna. She is four or five years younger than my daughter. She has taken in adoption the son of Sardar Ramgouda.
It has been argued on; behalf of the appellants, as it was in the trial Court, that there may have been ill-feeling between Giriappa and Balagouda, and the reason suggested is that in the year 1904 a man named Yelagouda brought a suit against Giriappa: for partition and in that suit Balagouda gave evidence in favour of the plaintiff, It seems to us, however, to be unreasonable and far-fetched to suppose that for this reason Giriappa made a false statement in 1908 when he said that his daughter Farvati was the junior wife of Basagouda. The statement was or might have been detrimental to his daughter and cannot be explained, we think, by the suggestion of spite against Balagouda.
7. In this same year 1908 there were disputes between Balagouda and the two widows of Basagouda about the amount of their maintenance. Basagouda in his will had fixed the amount of their maintenance at Rs. 50 a year and they were not unnaturally dissatisfied with this. The dispute was referred to arbitration and there were two award decrees, one between Balagouda and Krishnabai and the other between Balagouda and Parvatibai. It was provided that Krishnabai’s maintenance was to be Rs. 300 a year and Parvati’s Rs. 200 and some land was handed over to Krishnabai out of the Income of which she was to pay both her own maintenance and that of Par-vati. The award decree also provided that on the death of Krishnabai the land was to go back to Balagouda who was declared to be the owner of the whole estate. The fact that Krishnabai’s maintenance was fixed at Rs. 300 and that she was given the land out of which maintenance of both widows was to be paid rather points to the conclusion that she was the senior widow, although no great stress perhaps can be laid upon it.
8. In the year 1916 Balagouda applied to the Mamlatdar in connection with some change which he wanted made in the khata in the revenue books. He made a statement, exhibit 126, in which he said referring to his deceased brother Basagouda: “He has only two wives. They are Krishnabai his wife by marriage and Parvatibai his wife by pat. Parvati is the senior and Krishnabai is the junior wife.” The question of the seniority of Basagouda’s two widows would hardly seem to have been material for the purposes of Balagouda’s application. Nevertheless no doubt this statement made in 1916 is important, but we agree with the learned trial Judge that it is not entitled to as much weight as the statement of Parvati’s father in 1008. ‘
9. In the year 1925 there was litigation between Parvatibai and Krishnabai and in that suit the question which was the senior widow fell to be decided. The decision was that Krishnabai was the senior. This again cannot be described as a very cogent piece of evidence as against the defendant, although it is a relevant fact.
10. The oral evidence given in this suit is conflicting. There are several witnesses on both sides who say that they were present at both marriages. Plaintiff’s witnesses say that Krishnabai’s marriage took place first and was followed not long after by Parvati’s. Defendants’ witnesses say that Par-vati’s marriage was the first and Krishnabai’s took place two or three years later. The best of the defendants’ witnesses and in some respects the best of all the witnesses on. this question of the marriages is Ramagouda, who is the watandar patil of the village where the parties reside. But his evidence can hardly be regarded as disinterested because his own son is married to Balagouda’s daughter’ and he might be inclined therefore to take Balagouda’s side in this dispute. His daughter-in-law is one of the persons to whom Balagouda has made a gift of property. We rely particularly on the statement of Giriappa and we think that the balance of evidence is in favour of the view taken by the trial Court viz., that Krishnabai was the senior widow.
11. Even if Krishnabai was the junior widow, the adoption of the plaintiff would be valid if Parvati consented. An issue was raised on that point in the trial Court, but the trial Judge did not think it necessary to decide it in view of his finding that Krishnabai was the senior. If necessary we should be prepared to hold on the evidence that Parvati did consent. Both the plaintiff and Krishnabai have, deposed that she did and their statements derive strong support from the fact, which is admitted even by the defendants’ witness Ramagouda, that Parvati was present at the adoption ceremony. It is quite true, as pointed out in Bhimappa v. Basawa (1905) 7 Bom. L.R. 405, that a person’s presence at an adoption ceremony is not necessarily equivalent to consent to it. But we have on record a group photograph of the ceremony which shows that Parvati took a prominent part. She is shown right in the front and the plaintiff, the adopted son, is between Krishnabai on one side and Parvati on the other. We think it would be unreasonable to hold under the circumstances that Parvati merely acquiesced.
12. The most important and difficult point in the case is whether the adoption of the plaintiff has been impliedly prohibited by Basagouda. That depends on the construction of Basagouda’s will The plaintiff has not admitted that the will is genuine. But the trial Court found that it was, and we feel no doubt; upon that point. At one time the will was admitted by Krishnabai and it is proved by the evidence of Ramagouda, who is one of the two attesting witnesses, the other being dead. The will is as follows:–
To, Tirtharupa Rajamanya Rajeshri Balagouda Viragouda Herewade of Sulkud, Petha Alte, Kolhapur State.
Deed of arrangement; to operate after death and will passed by me, Basagouda Viragouda Herewade of same village is as under:–
I have no male issue. You are my elder brother and we are undivided. I am now attacked by plague and I fear that I may not survive the illness. Therefore, there are lands, etc. standing against my khata. The arrangement about that to operate after my death is as follows:–Rayatawa lands, houses, wadas, etc. standing in my name at Sulkud, Kolhapur State.
(Description of lands is given.)
The lands, houses and two wadas are there. The boundaries of the entire property are set out; in two decrees of Shirol Court. Accordingly all the estate, pots, clothes, cattle also the entire property are joint. You are the only heir of the property and the said property is in your possession. I have two wives and they live with you in one family. If they do not live with you, Rs. 50 should be given to them each for their maintenance. Ornaments worth Rs. 1,000 are on the person of each of them. Let them remain on their persons during their lifetime. After their death, they are yours only. Excepting maintenance, they have no other right whatsoever. I have a daughter’s daughter. She should be brought up, and when grown up, she should be married into a family of good income. About Rs. 500 should be given as dowry for the marriage. In order that my name should remain after my death, Rs. 100 per annum should be spent on religious acts, Jangams, Naivedya, etc You should do this, and you and your descendants, heirs and legatees should enjoy the ownership of the entire estate from generation to generation. On the strength of this will, you should get the khata transferred to your name in respect of the above lands. In regard to that my wives and anybody else whatever have no sort of right at all, I have passed this to you of my own free will and accord. Consequently, all the rights go to you only and are with you. You and I were living with one mind and I lived in accordance with your wishes and intended to live like that in future also. But there is no remedy for the wrath of God. Thus the will is passed, dated August 29, 1907.
13. It is argued by learned counsel on behalf of the appellants that the disposition of his property which Basagouda made in this will indicates that he desired no adoption by either of his widows. It is pointed out that the widows’ rights are restricted to mere maintenance. Even their ornaments are to go to Balagouda after their death and the testator provides for his annual ceremonies, “in order that my name should remain after my death”, and Balagouda is directed to perform the ceremonies. It is urged that Basagouda must have intended to prohibit any adoption which would defeat the purposes of the will. Mr. Kane for the respondent on the other hand contends that the dominant object of the will was simply to prevent difficulties arising in respect of transference of the khata in the revenue books. There were some of the family lands standing in Basagouda’s name and it was anticipated that this might cause difficulty. The defendants’ witness Rama-gouda has himself said that this was the object of the will. “Basagouda said that some lands stood in his name and that he would pass a will with regard to them to avoid future trouble by his two wives at the instigation of others.” So the argument is that the testator was only emphasising the fact that the family was joint. There might be trouble with the revenue authorities if the widows applied to have their names entered as heirs. But there is nothing said about adoption and nothing from which any prohibition of an adoption can be inferred. According to Mr. Kane there was nothing in the testator’s mind except to make it clear that it was joint family porperty and in his will he has merely stated the normal consequences of that position. Therefore it cannot be inferred that the testator’s intention was that there should be no adoption to him.
14. There is a good deal of force in both of these arguments. There are also difficulties in both. If Basagouda’s desire was that his widows were not to have the right of adoption, it seems surprising that he did not say so. On the other hand, if his object merely was to avoid difficulties about the. khata, he obviously stated a great deal more than was necessary for that purpose.
15. We have been referred to several authorities. None of the cases cited has any very direct bearing on the facts, but they are useful no doubt in ascertaining the principles to be followed. There are some observations of Sir Lawrence Jenkins in Lakshmibai v. Sarasvatibai (1899) I.L.R. 23 Bom. 789, s.c. 1 Bom. L.R. 420 showing that a disposition of property by the husband inconsistent with the wife’s right of adoption may justify an inference that adoption was impliedly prohibited. In that case there was as a matter of fact no such disposition. But in a1 later case, Malgauda Paragauda v. Babaji Dattu (1912) I.L.R. 37 Bom. 107, s.c. 14 Bom. L.R. 1121, it was held that an adoption by a widow was impliedly prohibited because the husband by his will had left his property to his daughters. The wife in that case was enjoined by the will not to make over the property to anybody except the daughters. The adoption was held’ to be invalid as it could not be upheld without giving the go-by to the testator’s expressed wishes. It may be noted that the testator mentioned that he had not taken any one in adoption which showed that it was present to his mind that any adoption would run counter to the provisions of the will. We do not think that such cases can be distinguished on the ground that Basagouda’s will in the present case was invalid and of no effect, the family being joint. What is material is not the validity of the will but the intention of the testator as to the way in which the property is to devolve.. Whether it devolves by his own volition or independently of it is not important if the course of devolution would be altered by an adoption which he could prohibit.
16. Then we were referred to Yadao v. Namdeo (1921) L.R. 48 I.A. 513, s.c. 24 Bom. L.R. 609. In that case a Hindu husband had stated before his death that he did not wish to adopt a son, but that if an adoption were made, the son of his brother should be adopted. His widow did adopt the son of his brother but the boy died and she then made another adoption. It was objected that that adoption was impliedly prohibited by the husband. But their Lordships of the Privy Council over-rukid that contention and held that there was no direction to the widow forbidding her to make an adoption if the toy named was not available or died. In the course of the judgment their Lordships said (p. 522):–
… such a direction to operate as a prohibition against his widow adopting any boy to him as a son except the boy named by him must be explicitly made and clearly intended by the husband to limit the discretion of his widow for all time, and on every occasion on which otherwise after his death his widow might validty make an adoption to him.
17. The principle laid down in this case has been’ followed in a very recent case of this Court, Damodar Vishnu Juvekar v. Shriram Lakshman Juvekar .
18. In Vithagouda v. Secretary of State the testator said:
…I have formed the resolve of giving all my moveable and immoveable property for charity after my death. For this reason I am not going to adopt a son. And I have neither given nor am going to give authority to make an adoption either to my wife or to anybody else. If anybody should take a son in adoption and say that there was my permission for it it should be regarded as untrue and the disposition of all my property should be made in the way I describe below.
It was held that though there was a prohibition against any such adoption as would defeat the provisions of the will, there was no prohibition in respect of property which could not pass under the will, and an adoption by the widow as the result of which the adopted son became the owner of watan property not affected by the will was held to be valid.
19. Cases where the husband has given directions about the adoption of a boy and where the particular boy for some reason is not available are not very helpful here because, as I pointed out in my judgment in Damodar Vishnu Juvekar v. Shirk am Lakshmm Juvekar, there is a presumption in such cases that an adoption was desired by the husband. Obviously no such presumption can arise in the present case. But when, as in this case the husband has said nothing; about an adoption one way or the other and the prohibition of adoption is sought to be inferred from statements about other matters or from conduct, it stands to reason that the inference suggested, if it is to be acted upon, must be a necessary inference. The Court must be able to say with confidence that what the husband has said or done shows that he would have prohibited an adoption, either in any circumstances or in the circumstances existing at the material time, if he could have foreseen them. If the1 Court can say no more than that he might have, or even that he probably would have, prohibited adoption in any circumstances or in those particular circumstances, that we think is not enough. For in that case it cannot be said that his statements or his actions are equivalent to a prohibition, and in the absence of prohibition there is an inherent right to adopt.
20. The learned trial Judge thought that Basagouda could not have had the possibility of an adoption in his mind at all, because, as he says inaccurately, the law as understood then was that a widow in a joint family could not adopt. But that was never the law and it was never so understood. A widow in a joint family was always known to have the power’ of adopting with the consent of her husband’s relations, that is to say in the absence of any prohibition from her husband. The plaintiff in this case has alleged, but has not been able to prove, that Balagouda consented to his adoption. But suppose that Balagouda had consented, could it have been argued that the adoption was invalid because Basagouda in his will had impliedly prohibited it? We think not. Basagouda was obviously anxious that the family should continue to be regarded as what it was in fact, a joint family, and that the fact that some lands were in his separate name should not give rise to any claim of separate ownership. He therefore emphasised the rights of His brother as the sole surviving coparcener. But it does not necessarily follow from that that he was opposed to one of the ordinary incidents of a joint family or that he would have objected to an adoption by his widow if his brother himself did not object. It might perhaps be argued with some plausibility, in view of his obvious anxiety to safeguard his brother’s rights, that he would have objected to any adoption of a son to himself without his brother’s consent, supposing that he could have contemplated that as a possibility. But we think that that might very well have depended on the circumstances of the case. The plaintiff is Balagouda’s son-in-law. He was so at the time of his adoption, and from the family point of view that is cer-tainly an important circumstance. We do not think we can say with any confidence that Basagpuda would have prohibited such an adoption if he had foreseen it. At any rate the matter is far from clear and without wandering into the region of speculation, which we are not entitled to do, we cannot spell out any prohibition from the terms of this will. We therefore agree with the view taken by the trial Court on this aspect of the case.
21. The point that the plaintiff is bound by the award decree to which Krishna-bai was a party in 1908 is a new one, not taken at the trial nor even mentioned in the memorandum of appeal. It cannot be taken therefore without special leave of the Court under O, XLI, Rule 2. It is the practice of this Court not to allow such ‘new points to be taken, unless at any rate it is clear that the point is a pure question of law which can be determined on the materials already on the record. But this cannot be said to be a pure question of law. It is clear from the case which learned counsel for the appellants himself cited, Ravji Andu v. Rama (1927) 29 Bom. L.R. 1346, that the question whether a decree against a widow is to be regarded as one against her in a representative capacity, and therefore binding on the estate, depends partly on questions of facts, such questions for instance as whether the action of the widow was reasonable in the interests of the estate and the parties affected. From the papers relating to these proceedings which are on record it would seem that the widows were primarily concerned at any rate with the amount of their maintenance, a purely personal matter. Moreover, as Mr. Kane has pointed out, it seems that as the result of these award proceedings Krishnabai abandoned the proceedings which she had instituted in favour of her adopted son Iragouda. Exhibit 134 is an application made by a pleader on behalf of Iragouda in which it was stated that Krishnabai, Iragouda’s next friend, was colluding with the opponent Balagouda. There is some reason to suppose therefore that Balagouda won over the widows to his point of view by giving them more maintenance than was allowed by Basagouda’s will. The question raised is a complicated one which in our opinion could not be satisfactorily determined on the available materials. But so far as the evidence on the record does go, we are certainly not prepared to hold that Krishnabai represented the estate in these proceedings in such a way as to make the award decree binding upon the present plaintiff.
22. We hold therefore that the appeal fails and must be dismissed with costs.