Judgement Appeal from a judgment and decree of the High Court (April 22, 1912) affirming a decree of the District Judge of Ganjam (November 1, 1910). The suit was instituted by the appellant against the respondent claiming that he was entitled to succeed to an impartible zamindari estate, of which the respondent was in possession. The respondents younger brother, Kunja Bihari, was made a defendant and, on the decease of the respondent, represented him upon the present appeal. The appellant by his plaint alleged that " according to Hindu law and usage he, as the adopted son of the late Adikonda Deo, and as the sole representative of the senior branch of the undivided co-parcenary, has become entitled from the date of his adoption to” the property in suit. The respondent by his written statement pleaded (1.) that the authority given by Adikonda Deo to his Law Rep. 45 Ind. App. 156 ( 1917- 1918) Madana Mohana Deo V. Purushothama Deo 61 widow to adopt did not authorize her to make a second adoption; (2.) that, if it did so, it was incapable of being exercised at the date of the appellants adoption, in that the widow of the first adopted son was alive, and that she, if duly authorized, alone could validly adopt to her deceased husband ; (3.) that the adoption of the appellant having been to a person other than the last male holder (Brojo), and the estate having upon the death of Brojo vested in a person other than the adoptive mother, the adoption was invalid. The facts appear from the judgment of their Lordships. The District Judge dismissed the suit. He held (1.) that under the terms of the authority to adopt there was not power to make a second adoption; (2.) that, in any case, the authority had come to an end in that Brojo had left a widow surviving him; and (3.) that the estate being impartible, the principles governing separate property were applicable rather than those governing an undivided co-parcenary, and that upon the former principles the adoption was invalid. The High Court affirmed the decree. The learned judges (Sir Arnold White C.J. and Seshagiri Aiyar J.) agreed in holding that under the authority there was power to make a second adoption, but that the power was not exercisable in that Brojos widow was alive when the second adoption was made. The High Court affirmed the decree. The learned judges (Sir Arnold White C.J. and Seshagiri Aiyar J.) agreed in holding that under the authority there was power to make a second adoption, but that the power was not exercisable in that Brojos widow was alive when the second adoption was made. Upon the remaining question involved in the appeal the learned judges were not wholly agreed. The Chief Justice did not desire to dissent from the judgment of Seshagiri Aiyar J., but was not satisfied that the judgment of the District Judge was wrong. Seshagiri Aiyar J. was of opinion that the rule that an estate once vested can only be divested by an adoption when the adoption is to the last male holder was not applicable to co-parcenary property; and that the rule consequently did not apply, since, in his view, every incident which attached to survivorship existed in the case of an impartible estate in Madras either under the Madras Impartible Estates Act (II. of 1904) or by judicial pronouncements. The appeal is reported at I. L. R. 39 M. 1105. 1918. March 12. De Gruyther, K.C., and Dube for the appellant. The terms of the authority and the circumstances indicate that the intention was that a second adoption should be made if necessary ; the first adoption therefore did not exhaust the power Kannipalli v. Pucha Venkata(( 1906) L. R. 33 I. A. 145.); Bhagwat Per shad v. Murari Loll. (( 1910) 15 Cal. W. N. 524.) The existence of Brojos widow at the date of the adoption did not exclude the valid exercise of the power. Brojo himself was not adopted till after the death of Adikonda ; nevertheless the Board in Ragunadha v. Brozo Kishoro (( 1871) L. R. 3 I. A. 154.) held that he was entitled to succeed. There is no text to support the limit to the exercise of a power to adopt laid down in Ramakrishna v. Shamarao. (I. L. R. 26 B. 526.) In any case, that rule does not apply to this case, because it was not proved that Brojos widow had power to adopt, and because the widow herself took no estate, the family being joint. Nor does the rule that an estate once vested can only be divested by an adoption to the last holder apply, since the appellant took by survivorship. Nor does the rule that an estate once vested can only be divested by an adoption to the last holder apply, since the appellant took by survivorship. The decision of the Board in Raganatha v. Brozo Kishoro (2) shows that this family is to be treated as joint, subject only to a custom of devolution to a single heir. That decision is not affected by the judgment in Sartaj Kuari v. Deoraj Kuari. (( 1887) L. R. 15 I. A. 51.) Further, the plaint alleged that Adikonda took by survivorship, and that fact was not put in issue. The respondent is therefore precluded by Order VIII., r. 5, from denying that the family was joint and that succession in it was by survivorship. Under a valid authority to adopt a new co-parcener can be added at any time Bachoo Hurkisondas v. Mankorebai. (( 1907) L. R. 34 I. A. 107.) The decision of the Board in Bhoobhun Moyee v. Kishore Acharj (( 1865) 10 Moo. I. A. 279.) does not apply, because there the family was separate, and the property had vested by inheritance. Sir Erle Richards, K.C., and Parikh, for the respondent, were not called upon. Law Rep. 45 Ind. App. 156 ( 1917- 1918) Madana Mohana Deo V. Purushothama Deo 62 April 26. The judgment of their Lordships was delivered by VISCOUNT HALDANE. This is an appeal from a decree of the High Court of Judicature at Madras which affirmed a decree of the District Judge of Ganjam. The main question to be decided relates to the validity of the appellants adoption. The suit is concerned with an impartible zamindari in the district of Ganjam called Chinnakimidi or Pratapgiri. In 1868 the holder of the zamindari was Adikonda Deo. who was a member of a joint Hindu family subject to the Mitakshara Jaw. The following pedigree shows the relationship of the parties to the suit to each other— CHANDRAMANI DEO | | | 040 | Adikond Raghunad Lokhan a Deo a a (died Deo(died) Deo 1868; | (died) married | | Kundana | | Devi(aliv | | e)) | | | | | | | Brojo Deo first Plaintiff(appellant), Vaisnava Brajaraj adopted son (died Whose adoption is Deo(died a september 3 1906; in question . September Deo married 18, 1906) Ratnamala(alive)) | | | Purusothama Kunja (defendant behari(defe respondent(decease ndant; d)) respondent) . September Deo married 18, 1906) Ratnamala(alive)) | | | Purusothama Kunja (defendant behari(defe respondent(decease ndant; d)) respondent) . Before his death in 1868 Adikonda Deo, the then zamindar, gave to his widow, who was at that time enceinte, a written authority to adopt in the following terms " As J know that my end, consequent upon the expiration of the terms fixed by fate is approaching, I do hereby declare that in case you, who are at present pregnant, be delivered of a male issue, the said child alone shall inherit my taluk as well as all my property, both movable and immovable. Becoming the owner of movable and immovable properties, till he arrives at the proper age you will look after him; or if a daughter be the result of your present pregnancy, you, adopting a son, who may be in your opinion worthy of the throne, and making him owner of the taluk, &c, shall, pending the attainment of the said boys majority, take care of him. This agreement is executed with my free will." On the death of Adikonda, his brother, Raghunadha Deo, took possession of the zamindari. The widow gave birth to a daughter, and, acting on the authority, adopted to her husband, a boy, Brojo Deo. in 1870. The adopted son instituted a suit to recover the zamindari from Raghunadha Deo, and this suit Law Rep. 45 Ind. App. 156 ( 1917- 1918) Madana Mohana Deo V. Purushothama Deo 63 was decided in his favour by this Board in 1876. Having recovered possession of the zamindari, Brojo held it until his death in 1906. He left a widow, Ratnamala; but no son. Possession of the zamindari was then taken by Vaishnava Deo, who died later in the same year, and was succeeded in the possession by the deceased respondent, Purushothama Deo. In 1907 the widow of Adikonda Deo purported to make a second adoption to her husband, under the terms of the authority already set out, by adopting the present appellant. The latter, as plaintiff, subsequently instituted the present suit to recover the zamindari. Several issues were framed, but that on which the result of the appeal must in any view turn is whether the adoption was legal. The latter, as plaintiff, subsequently instituted the present suit to recover the zamindari. Several issues were framed, but that on which the result of the appeal must in any view turn is whether the adoption was legal. .For if this question be answered in the negative other issues which were raised before the Courts below do not arise/and the root is cut from the appellants case. It is not in dispute that the zamindari was impartible and descended by the rule of primogeniture to a single heir. When Brojo was adopted, he succeeded as though he had been the actual son of Adikonda, and, as this Board decided in 1876 with reference to this very succession in a case reported in L. R. 3 1. A. 154, he became entitled to oust Raghunadha, whose right to enter was only temporary, operating merely to prevent the ownershi|3 from being in abeyance pending any such succession to his elder brother as the adoption brought about. But when Brojo succeeded he became himself the full owner, from whom heirship must be traced instead of as earlier from Adikonda. The widow of the latter was therefore in a different position when she endeavoured to effect the second adoption from that which she occupied on the former occasion. She could on that occasion, by exercising the power conferred on her, establish a direct succession to the estate of her husband, Adikonda, which related back to his death. On the second occasion the ownership which had become vested in Brojo had intervened, and it was only to his estate that she could possibly establish a succession. The learned judges in the Courts below have all agreed in holding that any authority .she could originally be taken to have received to make a second adoption had become inoperative by reason of the changed circumstances, and their Lordships are of opinion that the conclusion so come to was right. The Hindu law no doubt recognizes the validity of an authority given to a Hindu widow by her deceased husband to make a second, or even a third or fourth, adoption on failure of the previous adoption to attain the object for which the power is given, namely, the perpetuation of the deceaseds line to discharge the obligations that rest on a pious Hindu. When the authority to make successive adoptions is alleged, two questions arise (1.) whether it was in fact given ; and (2.) if so given, did it still exist in the widow when the subsequent adoption is made. In the present case their Lordships do not consider it necessary to decide whether the document before them can be construed as by its terms enabling a second adoption to be made. For the vital question here is whether after the adoption of Brojo Deo the power still survived in the widow of Adikonda Deo. When and under what circumstances the authority ceases to be exercisable has been considered in a number of cases both by this Board and the Courts in India. The High Court at Bombay took the view that the power must be looked on as extinguished under analogous circumstances in the case of Ramkrishna v. Shamarao (I. L. R. 26 B. 526.), where Chandravarkar J., delivering the judgment of the Full Bench, examines the authorities closely. He interprets earlier decisions of the Judicial Committee as having established conclusively that, quite apart from any question of construction, there is a limit imposed by law to the period within which a widow can exercise a power of adoption conferred on her, and that when that limit is reached the power is at an end. That limit may arise from circumstances such as those already referred to. The authorities on which he founds are the judgment Law Rep. 45 Ind. App. 156 ( 1917- 1918) Madana Mohana Deo V. Purushothama Deo 64 of this Board as delivered by Lord Kingsdown in Bhoobhun Moyee v. Ram Kishore (( 1881) L. R. 8 I. A. 229.), and the subsequent judgments in Pudma Coomari v. Court of Wards (10 Moo. 1. A. 279.) and Thayammal v. Venkatarama. 45 Ind. App. 156 ( 1917- 1918) Madana Mohana Deo V. Purushothama Deo 64 of this Board as delivered by Lord Kingsdown in Bhoobhun Moyee v. Ram Kishore (( 1881) L. R. 8 I. A. 229.), and the subsequent judgments in Pudma Coomari v. Court of Wards (10 Moo. 1. A. 279.) and Thayammal v. Venkatarama. (( 1887) L. R. 14 I. A. 67.) 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 Adikondas 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. That widow was not a party to the suit, and, whether or not she had power to adopt to Brojo, it has not been established against her that she had no such power. Their Lordships think it right to draw attention to this circumstance, but they do not desire to be understood as saying that even in its absence the succession of Brojo and his dying after attaining full legal capacity to continue the line would not in themselves have been sufficient to bring the limiting principle into operation, and so to have so determined the authority of Adikondas widow, who was not the widow of the last owner and could not adopt a son to him. This conclusion is, in their opinion, in no way m conflict with the previous decision of this Board as to the succession to this zamindari. There the title of Adikondas widow to displace Raghunadhas succession was recognized. But Raghunadhas succession was of a character only provisional, and subject to defeasance by the emergence of a male heir to Adikonda. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.