JUDGMENT
M.C. Chagla, C.J.
1. In this appeal the question that arises for decision is the succession to certain lands which are governed by the Bombay Hereditary Offices Act, V of 1886. The facts briefly are these. One Madhavrao Shinde was the owner of these lands. On his death they devolved upon his two sons Shripatrao who is the plaintiff and Ganpatrao. Ganpatrao died leaving his widow Parvatibai who is defendant No. 1. Ganpatrao had a son Ramehandra who died on July 22, 1921, issueless and unmarried. On April 28, 1928, Bajirao was adopted by Parvatibai, and the question is whether by reason of the adoption Bajirao, defendant No. 2, is entitled to the watan lands.
2. There can be no doubt that if succession was governed by the ordinary principles of Hindu law, in view of the recent decisions of the Privy Council, although on the death of Ramehandra the property would go to the next reversioner of Ganpatrao, viz. plaintiff, on the adoption of Bajirao on April 23, 1928, the property vested in the plaintiff would be divested and Bajirao would become entitled to those properties. But Mr. Walavalkar contends that the ordinary and normal rule of the Hindu law of succession cannot and should not apply to properties which are watan lands and governed by Act V of 1886. In support of his contention he first relies on a passage in the case of Anant Bhikappa Fatil v. Shankar Bamchandra Patil (1943) 46 Bom. L.R. 1, 4, p.c. Sir George Rankin in delivering the judgment points out that the -properties in that suit were governed by Act V of 1886 and he goes on to say that that Aet imposes -a special rule of succession whereby every female, other than the widow of the last male owner, is postponed to every male member of the watan family qualified to inherit, and Sir George Rankin adds (p. 4):
No other feature special to watan property was relied on or discussed in the Courts in India or mentioned in the printed case lodged by the parties upon this appeal, and their Lordships are not called upon or prepared to consider whether upon other grounds the law applicable to watandars or watan property varies from the ordinary Hindu law.
3. The question, therefore, I have got to consider is whether there is any special feature in the Watan Act which would induce me to hold that the law applicable to watandars or watan property is different from the ordinary Hindu law. Section 2 of Act V of 1886, which is relied upon, is to the following effect:
Every female member at a, watan family other than the widow of the last male owner, and every person Claiming through any female, shall be postponed in the order of succession to any watan, or part thereof or interest therein, devolving by inheritance after the date when this Act comes into force to every male member of the family qualified to inherit such watan, or part thereof or interest therein.
4. Therefore, apart from authority it is clear to my mind that the section prefers male heirs to female heirs excepting the case of the widow of the last owner as far as succession to watan land is concerned.
5. Now, on the adoption of Bajirao by the first defendant he became the male heir of Ganpatrao next in succession to Ramchandra, and therefore, when a claim is put forward by him, it is put forward as the male heir of Ganpatrao who is nearer in succession than the plaintiff. The whole fallacy in Mr. Walavalkar’s argument lies in this that it is not through the widow of Ganpatrao, the first defendant, that Bajirao claims. If he was claiming through any female, undoubtedly under Section 2 he would be postponed, but his claim, although it arises by reason of the adoption by defendant No. 1, is not through her but his title is paramount, and on adoption he becomes the male heir of Ganpatrao. Therefore, I see nothing whatever in Section 2 which suggests that the line of male heirs as laid down under ordinary Hindu law should be altered as far as watan lands are concerned and the ordinary Hindu law as now declared by the Privy Council is that on adoption the adopted son divests the property vested in the next reversioner.
6. Mr. Walavalkar has strongly relied on the decision of Mr. Justice Parsons and Mr. Justice Ranade in Krishnaji v. Tarawa (1900) I.L.R. 24 Bom. 484, s.c. 2 Bom. L.R. 276. They were considering also Section 2 of this very Act and the facts of that case undoubtedly were very similar to the facts before me. In that case the watan in question was owned by the brothers Rango and Bhimaji. Bhimaji died and thus Rango became the last male holder. Rango died in 1881 leaving a widow Laxmi, who held until her death in 1892. The widow of Bhimaji, Tarawa, who was still surviving, adopted the plaintiff No. 2 in 1893, and the plaintiff claimed the watan as against the defendant, who was a male member of the family and had been registered by the revenue authorities as the watandar on the death of Laxmi, and the Court there held that the plaintiff was-not entitled to succeed. Mr. Justice Parsons in his judgment stated that in a case where there is a male member qualified to inherit, he inherits, and a widow other than the widow of the last male owner acquires no rights by succession or inheritance, and consequently she cannot create, transfer or revive any by adoption. It is perfectly true that the widow in that case and defendant No. 1 in this case could not acquire any right by succession or inheritance as female heirs are disqualified under Section 2. But with very great respect, I do not see how it follows that she cannot create, transfer or revive rights by adoption. Mr. Justice Ranade in a concurring judgment points out that the chief object of the Watan Act was to ensure that the watan property should be in the hands of male heirs who can render personal service in preference to females. But that object of the Act is satisfied by the adopted son who is the heir and the preferential heir succeeding to the watan. The disability imposed by Section 2 is on female heirs. I see no disability placed upon the widow from adopting, and as the Privy Council has now clearly and emphatically laid down the power of the widow to adopt is not exhausted until those circumstances arise which have been indicated by the Privy Council and in this case the power of the widow of Ganpatrao to adopt was certainly not exhausted as Ramchandra died issueless and without leaving a widow.
7. My attention has also been drawn to Amarendra Man Singh v. Sanatan Singh . and at p. 871 Sir George Lowndes delivering the judgment of the Privy Council referred to the case of Bhimabai v. Tayajppa Murarrao (1913) I.L.R. 37 Bom. 598, s.c. 15 Bom. L.R. 783 and he pointed out that unless there was something in the nature of watan property which made the decision in Pratapsing’s case inapplicable, their Lordships thought that the case can no longer be regarded as authoritative.
8. If Mr. Walavalkar’s contentions were sound, then the decision in Bhitnabai’s case should still be good law because there also the plaintiff as the next reversioner sued to recover possession of the watan property against the defendant who had been adopted by the widow, and the Court held that the property vested in the plaintiff could not be divested by the adoption made by the widow. But it is clear that Bhimabai’s case no longer lays down the correct law. In ray opinion therefore the decision in Krishnaji v. Tarawa is no longer good law in view of the recent decisions of the Privy Council and therefore on the adoption of defendant No. 2 by defendant No. 1 defendant No. 2 became entitled to watan lands.
9. The appeal must, therefore, fail and must be dismissed with costs.
