Judgement Appeal (No. 51 of 1930) from a decree of the High Court at Bombay (February 28, 1928) affirming a decree of the Subordinate Judge of Dharwar (April 8, 1925). The suit, in which the respondent was plaintiff and the two appellants were defendants Nos. 1 and 2, related to the succession under Hindu law to certain watan lands situate in the Dharwar District where the authority of the Mayukha is predominant. The main point in dispute was whether the adoption of Narayan (defendant No. 2) by Bhimabai (defendant No. 1) in September, 1919, was valid. Bhimabai was the widow of Jivangouda, who died in 1913, and it was found concurrently (contrary to the defendants contention) that Jivangouda at his death was joint with his brother Nilkanthagouda, who died in 1915. Nilkanthagouda left an adopted son Dyamangouda, who died in August, 1919, leaving a son Dattatraya, born in 1918, who died unmarried in 1920. The plaintiff respondent was the adopted son of Khandappagouda, a brother [@ page LRIA Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 26] of Nilkanthagouda and Jivangouda, who separated from them in 1896 and died in 1912. It was concurrently found that Bhimabai had not the express authority of her husband Jivangouda to make an adoption. The consent of his kinsmen was not sought. The High Court, affirming the trial judge, held that the adoption was invalid. The learned judges (Patkar and Baker JJ.) followed the Full Bench decision of the Court in Ishwar Dadu v. Gajabai (( 1926) I. L. R. 50 B. 468.), that in the Bombay Presidency the widow of a Hindu who dies un-separated cannot validly adopt without her husbands authority or the consent of her father-in-law or the surviving members of her husbands joint family, and that the decision of the Full Bench to that effect in Ramji v. Ghamau (( 1879) I. L. R. 6 B. 498.) had not been overruled by the Privy Council in Yadao v. Namdeo. (( 1921) L. R. 48 I. A. 513.) 1932. June 28, 30 ; July 1, 4, 5, 7. De Gruyther K.C. and Parikh (with them Khambatta and A. G. Desai) for the appellant. (( 1921) L. R. 48 I. A. 513.) 1932. June 28, 30 ; July 1, 4, 5, 7. De Gruyther K.C. and Parikh (with them Khambatta and A. G. Desai) for the appellant. The judgment appealed from is based ultimately upon the Full Bench decision in 1879 in Ramji v. Ghamau (( 1879) I. L. R. 6 B. 498.), but that case was wrongly decided and was disapproved by the Board in Yadao v. Namdeo. (( 1921) L. R. 48 I. A. 513.) In Rakhmabai v. Radhabai (( 1868) 5 Bom. H. C. (A. C. J.) 181.) a Full Bench, upon a consideration of the texts and the then recent judgment of the Board in Collector of Madura v. Sathupathy (the Ramnad case) (( 1868) 12 Moo. I. A. 397.), held in 1868 that in the Mahratta country of the Bombay Presidency a widow could adopt without the permission of her husband and without the consent of his kindred. Neither the texts nor the decisions draw any distinction between a separated and an un-separated family. The Mayukha lays stress upon the religious duty of a widow to adopt a son to her husband; the view that in the absence of the husbands consent that of his kindred is necessary is referred to but is rejected. The Dattaka Mimansa, which takes that view, is not of authority in the Bombay Presidency. [Reference was made to the Mayukha, ch. iv., sec. 5, pi. 16, 17, 18 (Mandlik, p. 57 ; Stokes, pp. 63, 64), and to Mandlik, pp. 462-465; also, as to the texts having authority in Bombay, to Mayne, paras. 28, 30, and West and Buhler, 3rd ed., i., 9.] The decision in Ramji v. Ghamau (I. L. R. 6 B. 498.) was not based upon the texts but upon the judgments of the Board in the Ramnad case (12 Moo. I. A. 397.) and Sri Raghunadha v. Sri Brozo Kishoro. (( 1876) L. R. 3 I. A. 154.) Both those cases, however, arose in the Madras, not the Bombay, Presidency. In the former the judgment expressly states (12 Moo. I. A. 397, 438.) that their Lordships had excluded from their consideration the " peculiarly Maratha treatises (the Mayukha and Koustabha)." The principle there laid down as applicable in Southern India was that the authority of the husband, where not given, could be supplied by the consent of his kindred. In the former the judgment expressly states (12 Moo. I. A. 397, 438.) that their Lordships had excluded from their consideration the " peculiarly Maratha treatises (the Mayukha and Koustabha)." The principle there laid down as applicable in Southern India was that the authority of the husband, where not given, could be supplied by the consent of his kindred. That principle is not applicable under the Bombay school of Hindu law, because thereunder the widow has the implied authority of her husband, if not an inherent power Lakshmibai v. Sarasvatibai. (( 1899) I. L. R. 23 B. 789.) The view that a widow can adopt only where the estate is vested in her was rejected by the Board in Pratapsing Shivsing v. Agarsingji Raisingji. (( 1918) L. R. 46 I. A. 97.) Moreover Ramji v. Ghamau (I. L. R. 6 B. 498.) was overruled by the Board in Yadao v. Namdeo. (L. R. 48 I. A. 513.) The majority of the Full Bench in Ishwar Dadu v. Gajabai (I. L. R. 50 B. 468.) was wrong in holding that the judgment of the Board was obiter so far as it disapproved Ramji v. Ghamau (I. L. R. 6 B. 498.). That Ramji v. Ghamau (I. L. R. 6 B. 498.) was wrongly decided was in the forefront of the appellants argument. The Board no doubt found that the family, though joint at the date of the husbands death, was separated at the date of the adoption, and it was therefore open to the Board to have distinguished Ramji v. Ghamau (I. L. R. 6 B. 498.). It is clear, however, from the judgment that the Board intended to overrule the decision and not to distinguish it. [Reference was made also to Bajabai v. Bala Venketish Ramakant (( 1866) 7 Bom. H. C. Appx. i.); Gopal Shridhar Patvardhan v. Naro Vinayak Patvardhan (( 1866) 7 Bom. H. C. Appx. xxiv.) ; Narayan Babaji v. Nana Manohar (( 1870) 7 Bom. H. C. (A. C. J.) 153.); Rupchand Hindumal v. Rakhmabai (( 1871) 8 Bom. H. C. (A. C. J.) 114.); Vithoba v. Bapu (( 1890) Law Rep. 60 Ind. App. H. C. Appx. i.); Gopal Shridhar Patvardhan v. Naro Vinayak Patvardhan (( 1866) 7 Bom. H. C. Appx. xxiv.) ; Narayan Babaji v. Nana Manohar (( 1870) 7 Bom. H. C. (A. C. J.) 153.); Rupchand Hindumal v. Rakhmabai (( 1871) 8 Bom. H. C. (A. C. J.) 114.); Vithoba v. Bapu (( 1890) Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 198 I. L. R. 15 B. 110.) ; Ramchandra v. Mulji Nanabhai (( 1896) I. L. R. 22 B. 558.) ; Madana Mohana v. Purushothama (( 1918) L. R. 45 I. A. 156.) ; Pandu v. Dhondi. (( 1920) 22 Bom. L. Repr. 1403.)] Dunne K.C. and Jahagirdar (with them Colombos) for the respondent. Ramji v. Ghamau (I. L. R. 6 B. 498.) was decided upon the texts though they are not set out in the judgment, and adopted the view which had already been laid down by Sir Thomas Strange (1 Strange H. L., pp. 79, 80) and Mr. Colebrooke (2 Strange H. L., Appx. p. 92). The decision, which was in 1879, was followed without question down to the decision of the Board in 1921. The text of the Mayukha properly construed does not support the appellant; it shows that in the absence of the husbands authority the consent of his kindred is necessary. The Bombay Court has always treated the vesting of the property as affecting the widows power to adopt Rupchand Hindumal v. Rakhmabai. (( 1871) 8 Bom. H. C. (A. C. J.) 114, 118-120.) In Rakhmabai v. Radhabai (5 Bom. H. C. (A. C. J.) 181, 191, 192.) the family was separated and the estate vested in the widow ; the judgment shows it was not intended to lay down a rule applicable in an undivided family. The decision of the Board in the Ramnad case (12 Moo. I. A. 397, 442.) was based upon the view that " it would be unjust to allow the widow to defeat their " (the coparceners) " interest by introducing a new coparcener against their will"; that was the view applied also in Sri Raghunadhas case (L. R. 3 I. A. 154, 193.), and the grave objections to a Hindu widow having an unfettered power in the matter were pointed out. Those principles, though stated in cases from Madras, are equally applicable in the Bombay Presidency and were rightly applied in Ramji v. Ghamau. In Yadao v. Namdeo (L. R. 48 I. A. 513.) the Board disapproved the decision in Ramjis case only so far as it made the vesting of the property in the widow as heir to her husband a condition to her power to adopt without the consent of his kindred, thus denying that power where there was a vesting in her] as heir of a deceased adopted son. Having regard to the series of decisions in Bombay following Ramji v. Ghamau the Board cannot have intended to go further, nor was it necessary to do so. Pratapsings case (L. R. 46 I. A. 97.) does not apply, because in that case the family was separaed, though owing to a family custom the estate did not vest in the widow. But even if Bhimabai had power to adopt, that power became exhausted upon the death in 1915 of her husbands last surviving brother Nilkanthagouda Chandra v. Gojarabai (( 1890) I. L. R. 14 B. 463.); Vasudeo v. Ramchandra (( 1896) I. L. R. 22 B. 551.) ; Tejrani v. Sarupchand Chhaganbai. (( 1919) I. L. R. 44 B. 483.) The joint family came to an end upon the death of Nilkanthagouda, because upon the true construction of the deed of adoption executed by him Dyamangouda took the property only upon the death of Nilkanthagouda and did not become a coparcener. [Reference was made also to Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (( 1865) 10 Moo. I. A. 297, 311, 312.) ; Bachoo Hurkisondas v. Mankorebai (( 1907) L. R. 34 I. A. 107, 113.) ; Ramkrishna v. Shamrao (( 1902) I. L. R. 26 B. 526.) ; Veeranna v. Sayamma (( 1928) I. L. R. 52 M. 398.) ; Madana Mohana v. Purushothama. (( 1918) L. R. 45 I. A. 156.)] De Gruyther K.C. replied. Nov. 4. The judgment of their Lordships was delivered by SIR DINSHAH MULLA. This is an appeal from the decree of the High Court of Judicature at Bombay, dated February 28, 1928, which affirmed the decree of the Court of the Joint First Class Subordinate Judge of Dharwar, dated April 8, 1925. Nov. 4. The judgment of their Lordships was delivered by SIR DINSHAH MULLA. This is an appeal from the decree of the High Court of Judicature at Bombay, dated February 28, 1928, which affirmed the decree of the Court of the Joint First Class Subordinate Judge of Dharwar, dated April 8, 1925. The main question involved in the appeal is whether, according to the law prevalent in the Mahratta country of the Bombay Presidency, a Hindu widow, whose husband was undivided at the time of his death, and who has not the express permission of her husband, may adopt a son to him without the consent of the surviving coparceners. The parties are governed by the Mitakshara law, and, on questions on which the Mitakshara is silent, by the law as expounded in the Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 199 Vyavahara Mayukaha of Nilakantha. The following pedigree shows the relationship between the rival claimants — Dyamangouda | | | | = Bhimabai Nilkanthagouda Khandappagouda Jivangouda (Deft.-appt. (d. December, (d. 1912). (d. 1913) . No. 1). 1915.) | | | Dyamangouda = Tungabai | | (d. August, | Gurunathgouda Narayan 1919). | (Plf.-respt.) [adopted on 17-9-19], (Deft.-applt. No. 2). | Dattatraya (born, August, 1918), (died, February, 1920). The facts material to the appeal are no longer in controversy between the parties. Dyamangouda and his three sons, Nilkanthagouda, Khandappagouda and Jivangouda, constituted a joint Hindu family. Dyamangouda died some years ago leaving him surviving his three sons. In 1895 Khandappagouda separated from the family, but the other two brothers continued to be joint. Khandappagouda died in 1912, leaving a widow who adopted the respondent as a son to him on July 6, 1915. Jivangouda died in 1913 leaving a widow, Bhimabai, who is appellant No. 1 before this Board, and a daughter Tirkawa, but no male issue. On the death of Jivangouda his undivided interest in the joint family property passed to Nilkanthagouda by survivorship. On May 20, 1915, Nilkanthagouda, who had no male issue, took one Dyamangouda, who was then of the age of about twenty years, in adoption. On the same day Nilkanthagouda executed a writing purporting to be a deed of adoption in favour of Dyamangouda, which will be adverted to later. Nilkanthagouda died in December, 1915, and on his death the joint family property passed by survivorship to Dyamangouda. On the same day Nilkanthagouda executed a writing purporting to be a deed of adoption in favour of Dyamangouda, which will be adverted to later. Nilkanthagouda died in December, 1915, and on his death the joint family property passed by survivorship to Dyamangouda. Dyamangouda died in August, 1919, leaving a widow Tungabai and a son Dattatraya, and the joint family property passed to Dattatraya by survivorship. Dattatraya was then about a year old, and Tungabai managed the property on his behalf. On September 17, 1919, Bhimabai adopted appellant No. 2 as a son to her deceased husband Jivangouda. The adoption was not made under any express authority from her husband, nor was it made with the consent of Dattatraya, who was then the sole surviving coparcener. Dattatraya, in fact, was a minor at that date, and incapable of giving his consent. It is the validity of this adoption that is in question in the appeal. Dattatraya died a minor and unmarried on February 6, 1920. Shortly after his death, Tungabai delivered possession of the property to the respondent, purporting to do so under a consent decree in an arbitration proceeding between her and the respondent. Subsequently, on the application of the Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 200 respondent, the Mamlatdar of Gadag ordered the property to be entered in his name in the record of rights as owner thereof, but the order was set aside by the Deputy Collector of Dharwar. Thereupon the respondent brought the suit out of which the present appeal arises in the Court of the Subordinate Judge of Dharwar against the first and second appellants, and three others who are not parties to the appeal. Therein he claimed a declaration that he was lawfully in possession of the property, and asked for an injunction restraining the defendants from interfering with his possession. The plaint alleged that the adoption of appellant No. 2 was not valid, and that the respondent was entitled to the property as the next heir of Dattatraya. The defence, so far as it is material to the appeal, was that appellant No. 2 was validly adopted, and that he was entitled to the property by survivorship. The property is watan land, and it was agreed that Tungabai had no interest in it. The defence, so far as it is material to the appeal, was that appellant No. 2 was validly adopted, and that he was entitled to the property by survivorship. The property is watan land, and it was agreed that Tungabai had no interest in it. The Subordinate Judge held, following a Full Bench ruling of the High Court at Bombay in Ishwar Dadu v. Gajabai (I. L. R. 50 B. 468.), that the adoption of appellant No. 2 was invalid, and passed a decree for the plaintiff. On appeal, the High Court at Bombay (consisting of Patkar and Baker JJ.) confirmed the judgment of the Subordinate Judge, and passed a decree on February 28, 1928, dismissing the appeal with costs. It is against this decree that the present appeal has been brought to His Majesty in Council. The question as to the validity of an adoption by a widow in a joint family was considered by the High Court at Bombay in Ramji v. Ghamau (I. L. R. 6 B. 498.), where it was held that an adoption by the widow of a deceased coparcener, who had not her husbands express authority to adopt, was invalid, if made without the consent of the surviving coparceners. This case was considered by the Board in Yadao v. Namdeo. (L. R. 48 I. A. 513.) Four years later, the same question again arose in Bombay in Ishwar Dadu v. Gajabai (I. L. R. 50 B. 468.), and it was referred to a Full Bench. It was argued in that case that Ramji v. Ghamau was overruled by the Board in Yadao v. Namdeo, and that the Board had in that case approved an earlier decision of the same High Court in Rakhmabai v. Radhabai. (5 Bom. H. C. (A. C. J.) 181.) The Full Bench, however, decided that Ramji v. Ghamau was still good law, and this was the ruling followed both by the Subordinate Judge and the High Court in the present case. The main question in this appeal is whether Ramji v. Ghamau (I. L. R. 6 B. 498.) was overruled in Yadao v. Namdeo (L. R. 48 I. A. 513.), as contended by the appellants, or whether the observations of the Board with reference to that case were obiter dicta, as is maintained for the respondent. The main question in this appeal is whether Ramji v. Ghamau (I. L. R. 6 B. 498.) was overruled in Yadao v. Namdeo (L. R. 48 I. A. 513.), as contended by the appellants, or whether the observations of the Board with reference to that case were obiter dicta, as is maintained for the respondent. It will be convenient first to examine Rakhmabai v. Radhabai and Ramji v. Ghamau, and then consider whether Ramji v. Ghamau was overruled in Yadao v. Namdeo. In Rakhmabai v. Radhabai (5 Bom. H. C. (A. C. J.) 181.), the suit was brought by the junior widow of a separated Hindu against the senior widow for possession of her equal half share in the estate of her deceased husband. The defendant in her written statement alleged that she had adopted a son to her husband, and contended that the adopted son was entitled to the entire estate. The adoption was made without (as it was found) the permission of her husband, and without the consent of his sapindas. Two questions were raised in the case— namely (1.) whether the adoption by the defendant, having been made without the permission of her husband and without the consent of his sapindas, was valid ; and (2.) if so, whether a senior widow had power to adopt without the concurrence of the junior widow. The trial judge passed a decree for the plaintiff. The defendant m appealed, and the appeal was heard by Sir Richard Couch C.J. and Newton and Warden JJ. The learned judges held that the adoption, though made without the permission of the husband and without the consent of his sapindas, was valid. They also held that a senior widow had power to adopt without the concurrence of the junior widow. The judgment of the Court was delivered by Sir Richard Couch. Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 201 On the first question, the learned Chief Justice observed that the Mitakshara was silent on the point, and that it was therefore necessary to resort to the Mayukha by which the parties were governed. He then quoted pi. 17 and 18, sec. 5, ch. Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 201 On the first question, the learned Chief Justice observed that the Mitakshara was silent on the point, and that it was therefore necessary to resort to the Mayukha by which the parties were governed. He then quoted pi. 17 and 18, sec. 5, ch. iv., of the Mayukha, which relate to adoption by a widow, and considered the earlier Bombay decisions on the subject and the opinions of Pandits which had been given in those cases, and said " Upon the review which we have made of the authorities applicable in this part of ndia, we are of opinion that in the Maratha country wherein the property in question in this suit is situate, a Hindu widow may, without the permission of her husband, and without the consent of his kindred, adopt a son to him, if the act is done by her in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive." The clause printed in italics represented the Madras view, which was held in a later case to be inapplicable in Bombay see Ramchandra v. Mulji. (I. L. R. 22 B. 558.) Omitting that clause, the rest of the passage quoted above represents the construction put upon the Mayukha by the Court. The case, no doubt, was one of an adoption by a widow in a divided family, but it was not suggested there that the Mayukha draws any distinction between an adoption by a widow in a divided family and an adoption by a widow in a joint family. In Ramji v. Ghamau (I. L. R. 6 B. 498.), the case which the appellants contend was overruled by the Board in Yadao v. Namdeo (L. R. 48 I. A. 513.), the widow of a deceased coparcener adopted a son to her husband without his express permission and without the consent of the surviving coparceners. In Ramji v. Ghamau (I. L. R. 6 B. 498.), the case which the appellants contend was overruled by the Board in Yadao v. Namdeo (L. R. 48 I. A. 513.), the widow of a deceased coparcener adopted a son to her husband without his express permission and without the consent of the surviving coparceners. The case was heard by a Full Bench consisting of Sir Michael Westropp C.J. and Melvill and Kemball JJ, The learned Chief Justice, who delivered the judgment of the Court, said " Accepting, however, the view which the cases seem to establish, viz., that the widow, where the husband dies separated, and she herself is the heir, or she and a junior widow are the heirs, may adopt without the sanction of the husband (if he have not expressly, or by implication, indicated his desire that she shall not do so), and without the sanction of his kindred, we are not, as has been previously said in this Court (The name of the case was not mentioned, but the reference appears to have been to Bayabai v. Bala Venk atesh Ramak ant 7 Bom. H. C. Appx. i., xvii.), disposed to carry the deviation from ordinary Hindu law further than it has been already established by precedents." The Court held that the decision in Rakhmabai v. Radhabai (5 Bom. H. C. (A. C. J.) 181.) was confined to the case of an adoption by a widow in a divided family, and concluded that a widow, whose husband was undivided at the time of his death, and who has not his express authority to adopt, cannot make a valid adoption to him without the consent of his coparceners. It is nowhere suggested in the judgment that the construction put upon the Mayukha in Rakhmabai v. Radhabai was not correct. Their Lordships will now proceed to consider whether Ramji v. Ghamau was disapproved by the Board in Yadao v. Namdeo. The family in that case was a joint family consisting of Pundlik, his cousin Namdeo, and Namdeos two sons, Pandurang and Rambhau. Pundlik died childless in January, 1905. In March, 1905, his senior widow, Champabai, adopted Pandurang under an authority from him. That adoption was not disputed. The family in that case was a joint family consisting of Pundlik, his cousin Namdeo, and Namdeos two sons, Pandurang and Rambhau. Pundlik died childless in January, 1905. In March, 1905, his senior widow, Champabai, adopted Pandurang under an authority from him. That adoption was not disputed. In April, 1905, Namdeo executed a deed of adoption in which he stated that he and Pundlik were members of a joint family, and that the adopted boy was " sole heir of half the entire property on the authority of the deed of adoption, and half the property belongs to me." The deed further provided " My half share in the movable and immovable property may be kept as joint," if the widows of Pundlik approved. Pandurang died a minor and unmarried in 1907, and in 1908 Champabai adopted Yadao as a son to her husband without the consent of Namdeo. It was this adoption that was contested by Namdeo. Pundlik and his family had settled in the Central Provinces, but they were governed by the law applicable to Mahrattas in the Presidency of Bombay. Subsequently, Yadao brought a suit for partition against Namdeo in the Court of the Additional District Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 202 Judge at Akola. The trial judge held that the adoption was valid, and made a preliminary decree for partition. Namdeo appealed to the Court of the Judicial Commissioner, Central Provinces, which allowed the appeal and dismissed the suit. The learned Judicial Commissioners held (as would appear from the record of the case printed for the Board), first, that the adoption had been prohibited by Pundlik, secondly, that the deed of adoption did not show that Pandurang had separated from Namdeo and Rambhau, and, lastly, that the family being still joint at the death of Pandurang, and the adoption having been made without the consent of Namdeo, it was invalid according to the ruling in Ramji v. Ghamau, From that decree Yadao appealed to His Majesty in Council. Three points were argued before the Board on behalf of Yadao. First, it was argued on the authority of Rakhmabai v. Radhabai (5 Bom. Three points were argued before the Board on behalf of Yadao. First, it was argued on the authority of Rakhmabai v. Radhabai (5 Bom. H. C. (A. C. J.) 181.), that according to the law applicable to the parties, the widow had power to adopt to her husband without his permission and without the consent of his kinsmen, whether the husband was divided or undivided at the time of his death, and that the limitation sought to be imposed on that power—namely, that it could only be exercised when the estate was separate and vested in the widow—rested solely on the judgment in Ramji v. Ghamau, and was not supported by any text or commentator. Next, it was argued that the adoption had not been prohibited by Pundlik either expressly or by necessary implication. Lastly, it was contended that if the widows power depended upon the estate not being joint, it was not joint at the time when the adoption was made, as a separation had already been effected by the deed of adoption. On the other hand, it was argued on behalf of Namdeo that the adoption had been prohibited ; that the deed of adoption neither effected nor evidenced a separation ; and that in any case, Pundlik having died joint, if at his death 1 ,. mow had not power to adopt without his authority, the fact of a subsequent partition could not give her authority, and reliance was placed on Ramji v. Ghamau. The Board held that the deed of adoption showed that there was a separation between Pandurang and Namdeo, so that the estate of Pandurang passed to Champabai on his death as his heir. The Board also held that Pundlik had not prohibited the adoption. The estate being vested in her, and there being no prohibition to adopt, she was free to adopt another son to her husband without the consent of Namdeo, and she adopted Yadao. An adoption made in these circumstances was obviously valid, and required no further consideration. But both sides invited the Board to decide whether, even if Pandurang had not separated from Namdeo, Namdeos consent was necessary to the adoption, and this question was considered in the latter part of the judgment. The judgment of the Board on this part of the case begins with an examination of Ramji v. Ghamau. But both sides invited the Board to decide whether, even if Pandurang had not separated from Namdeo, Namdeos consent was necessary to the adoption, and this question was considered in the latter part of the judgment. The judgment of the Board on this part of the case begins with an examination of Ramji v. Ghamau. The Board first stated what the question to be decided in that case was, and after quoting some passages from the judgment and commenting on them, expressed its opinion thus " There does not appear to their Lordships to be any sound reason why in the Mahratta country of the Presidency of Bombay the Hindu law as to the power of a Hindu widow who has not the authority of her deceased husband to adopt a son to him, should depend on the question whether her husband had died as a separated Hindu or as an un-separated Hindu, or on the question whether the property which was vested in her when she made the adoption was or was not vested in her as his heir." Their Lordships are of opinion that in the passage quoted above the Board expressed its disapproval of the decision in Ramji v. Ghamau. The Board then examined the judgment in Rakhmabai v. Radhabai, and said " The decision was not based upon the fact that the deceased husband was a separated Hindu, nor was it based upon the fact that at the time of the adoption, the widow who made the adoption had vested in her the whole or any part of the property which had belonged to her husband. Their Lordships regard it as equally applicable to an adoption by a Hindu widow of the Mahratta country of the Province of Bombay, whether her husband at the time of his death was joint or separate, and whether his property was or was not vested Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 203 in her as his heir at the time when she made the adoption, and consider that it is a decision to be applied in this appeal." This, their Lordships think, was a clear approval of the decision in Rakhmabai v. Radhabai. In the result the Board held that the adoption of Yadao was valid. In the result the Board held that the adoption of Yadao was valid. This conclusion was based on two grounds (1.) that there was a separation between Pandurang and Namdeo, in which case Champabai could undoubtedly adopt without the consent of Namdeo ; and (2.) that even if there was no separation Champabai had the right to adopt Yadao without the consent of Namdeo. Counsel for the respondent contended that the question at issue in Yadao v. Namdeo did not turn on the actual decision in Ramji v. Ghamau, but on a single passage in the judgment, that " the widow of a Hindu, dying without leaving any male issue, may, if her husband were separated from his family in estate (or, in other words, where she is his heir), adopt without any express authority from him .... and without the consent of his relatives." He maintained that the whole question before the Board was whether Champabai, having the estate vested in her, not as her husbands heir, but as heir of her son, could make a valid adoption without the consent of amdeo, and that the Board held that she could. Their Lordships are unable to adopt this view. The Court of the Judicial Commissioner had held that Pandurang having died undivided, and his interest having passed by survivorship to Namdeo, the decision in Ramji v. Ghamau applied, and that the adoption having been made without the consent of Namdeo, it was invalid. The very first argument on behalf of Yadao, as appears from the report, was that Ramji v. Ghamau was wrongly decided, not that any particular proposition in it was incorrect, and Rakhmabai v. Radhabai was cited as laying down a rule of law directly contrary to the decision in Ramji v. Ghamau. That is what was argued before the Board, and that is the argument that was accepted by the Board. Counsel for the respondent also relied upon some passages in the judgments of the Board in the Ramnad case (12 Moo. I. A. 397.), and in Sri Raghunadha v. Sri Brozo Kishoro (L. R. 31. A. 154.), in support of his contention that the Board could not have intended to overrule Ramji v. Ghamau. Counsel for the respondent also relied upon some passages in the judgments of the Board in the Ramnad case (12 Moo. I. A. 397.), and in Sri Raghunadha v. Sri Brozo Kishoro (L. R. 31. A. 154.), in support of his contention that the Board could not have intended to overrule Ramji v. Ghamau. In the Ramnad case the Board held that, in the case of an undivided family, the father of the husband was competent, by his sole assent, to authorize an adoption by a widow, and if the father was not then living, " the consent of all the brothers who, in default of adoption, would take the husbands share, would probably be required, since it would be unjust to allow the widow to defeat their interest by introducing a new coparcener against their will." In Sri Raghunadha v. Sri Brozo Kishoro a widow in an undivided family adopted without the consent of the husbands coparceners and with the consent of a distant and separated sapinda. The Board observed that " there seem to be strong reasons against the conclusion that for such a purpose as that now under consideration, she can, at her will, travel out of the undivided family and obtain the authorization required from a separated and remote kinsman of her husband." The Board also observed that " there are grave social objections to making the succession of property dependent on the caprice of a woman, subject to all the pernicious influence which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property/ and that it v/as the duty of the Courts to keep the power strictly within the limits which the law had assigned to it. Now both these cases were from Madras, and according to the law, as stated in the commentaries of that school, a widow who has not the express authority of her husband cannot adopt a son to him without the consent of his kinsmen. The commentaries, however, do not specify all the kinsmen. All that they say is that the consent to be obtained must be the consent of " the husbands father, etc." In both the cases the High Court at Madras considered that, in the absence of the husbands father, the consent of any kinsman was sufficient, but the Board intimated its dissent from that view. All that they say is that the consent to be obtained must be the consent of " the husbands father, etc." In both the cases the High Court at Madras considered that, in the absence of the husbands father, the consent of any kinsman was sufficient, but the Board intimated its dissent from that view. The Board Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 204 held that the consent to be obtained, when the family was undivided, must be the consent not of a separated kinsman who had no interest in the property, but of his (the husbands) coparceners to whom his interest had passed on his death by survivorship, and it was in this connection that the observations of the Board quoted above were made. These observations cannot apply to an adoption by a widow in Bombay. The Mayukha and the Kaustabha, which govern the Mahratta school, regard adoption by a widow as a religious duty, which does not require the authority either of the husband or of his kinsmen. If no consent is required, no question of injustice or hardship to the kinsmen can arise. For the reasons stated above, their Lordships are of opinion that Ramji v. Ghamau was overruled by the Board in Yadao v. Namdeo, and that the opposite view taken by the Full Bench of the High Court at Bombay in Ishwar Dadu v. Gajabai (I. L. R. 50 B. 468.) is wrong. Their Lordships may add that they agree with their predecessors that Ramji v. Ghamau was wrongly decided, and that the correct view of the law is that expressed in Rakhmabai v. Radhabai. Their Lordships are therefore of opinion that the adoption of appellant No. 2 was not invalid on the ground that it was made by Bhimabai without the express permission of her husband and without the consent of the surviving coparcener. It was pressed on their Lordships that Ramji v. Ghamau had been accepted and acted upon in the Presidency of Bombay since 1879, and that the decision should not be disturbed. But this is a belated appeal. It should have been made when Yadao v. Namdeo was before the Board. Yadao v. Namdeo was decided so far back as 1921, and if the High Court at Bombay, after that decision, followed Ramji v. Ghamau, it was wrong in so doing. But this is a belated appeal. It should have been made when Yadao v. Namdeo was before the Board. Yadao v. Namdeo was decided so far back as 1921, and if the High Court at Bombay, after that decision, followed Ramji v. Ghamau, it was wrong in so doing. Their Lordships will now turn to the other contentions raised on behalf of the respondent. The first of these rests on the decision of the High Court at Bombay in Chandra v. Gojarabai (I. L. R. 14 B. 463.), and other cases following it. The question in that case was whether an adoption by the widow of a coparcener, after the death of the last surviving coparcener, and after the estate had vested in his widow or another person as his heir, was valid, and it was held that it was not. The reason for the decision was thus stated by Telang J. " Where the inheritance devolved from Nana [the last surviving coparcener] upon his widow, it devolved, not by succession, as in an undivided family, but strictly by inheritance, as if Nana had been a separated householder. Strictly speaking, according to the view taken by our Courts, there was at Nanas death no undivided family remaining into which an adopted son could be admitted by virtue of his adoption/ Relying on this decision, it was argued that the last surviving coparcener at the date of the death of Jivangouda was Nilkanthagouda, and that the adoption of appellant No. 2 having been made after the death of Nilkanthagouda, it was invalid. But Nilkanthagouda was not the sole surviving coparcener at the date of his death which, according to the decision cited above, would be the material date. Nor did the estate pass to Dyamangouda by inheritance as his heir. The coparcenary at the death of Nilkanthagouda consisted of himself and Dyamangouda, and the estate passed to Dyamangouda by survivorship. The adoption of appellant No. 2 was not made after the extinction of the coparcenary, but during its subsistence, the last surviving coparcener being Dattatraya. Their Lordships are, therefore, of opinion that the principle of the decision mentioned above does not apply. Another argument for the respondent against the validity of the adoption was that if the adoption of appellant No. 2 were upheld, the result would be that while a paternal grandmother could not adopt, a grandaunt could adopt. Their Lordships are, therefore, of opinion that the principle of the decision mentioned above does not apply. Another argument for the respondent against the validity of the adoption was that if the adoption of appellant No. 2 were upheld, the result would be that while a paternal grandmother could not adopt, a grandaunt could adopt. It is true that Nilkanthagouda having died leaving a son, and that son having himself died leaving a son, Nilkanthagoudas widow could not have adopted a son to her husband. But that is because her power to adopt came to an end the moment Dyamangouda died leaving a son see Law Rep. 60 Ind. App. 25 ( 1932- 1933) Bhimabai V. Gurunathgouda Khandappagouda 205 Ramkrishna v. Shamrao. (I. L. R. 26 B. 526.) It was not so in the case of Bhimabai. Her power to adopt, when she adopted appellant No. 2, had not come to an end ; it was still subsisting. Their Lordships think that there is no force in this argument. The last argument for the respondent was founded on the deed of adoption executed by Nilkanthagouda in favour of Dyamangouda. The material portion of the document is as follows "So I have this day taken you in adoption according to our religion. (But the conditions that have been made are mentioned below —) During my lifetime I alone am to carry on vahivat of my entire movable and immovable property which has been in my possession from before the time of my taking you in adoption. You should live and be taken care of in my home. And after my death you should take my movable and immovable property into your possession and should carry on vahivat thereof as a son born of my loins. " It was argued for the respondent that on a true construction of this document, Dyamangouda did not take any interest in the property on adoption, that the property was given to him by way of gift which was not to take effect until after the death of Nilkanthagouda, and that all that Dyamangouda was entitled to during Nilkanthagoudas lifetime was maintenance. On this construction of the document, it was contended, that Dyamangouda did not enter the family as a coparcener, and that the coparcenary came to an end on the death of Nilkanthagouda. On this construction of the document, it was contended, that Dyamangouda did not enter the family as a coparcener, and that the coparcenary came to an end on the death of Nilkanthagouda. Their Lordships do not think that that is the true meaning of the document. Dyamangouda was an adult at the date of adoption, and all that Nilkanthagouda intended to do by this writing was to exclude Dyamangouda from the possession and management of the property in his lifetime, and to retain sole control thereof in his own hands. In the result, their Lordships are of opinion that appellant No. 2 was validly adopted by Bhimabai as a son to her husband. Their Lordships will, therefore, humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court, dated February 28, 1928, and that of the Subordinate Judge, dated April 8, 1925, should be set aside, and that the suit should be dismissed. The respondent must pay the appellants costs in the Courts below and before this Board.