Bombay High Court
Keshav Ramkrishna vs Govind Ganesh on 16 September, 1884
Equivalent citations: (1885)ILR 9BOM94
JUDGMENT West, J.
1. The District Judge in this case has been influenced by the same arguments that prevailed with the High Court of Calcutta in Padmakumari v. The Court of Wards I.L.R. 8 Calc. 302 : S.C. L.R. 8 Ind. Ap. 229. There it was supposed that the adoption of a son by a widow, though it had beta pronounced invalid for the purpose of divesting the estate of a deceased son's widow, might yet after the death of that widow be deemed valid or capable of validation for other purposes, and especially so as to give to the adopted son a preference as heir to the family estate over remoter descendants from the common ancestor. But the Judicial Committee in appeal declared that the previous decision had intended to declare, not only that the adoption could not effect the estate of the deceased son's widow, but that her existence and the vesting in her of her husband's estate had made the power of adoption incapable of execution by the elder widow, Now in Western India an express power is not necessary to authorize a widow to adopt, but that is because an authority is presumed in the absence of a prohibition. The implied authority, however, would be made incapable of ex-cution by the same circumstances that would prevent adoption under an express power. As the reason rests on the vesting of the estate in the deceased son's widow, and it is not divested by subsequent unchastity, it follows that in the present case the inquiry into Parvatibai's chastity would be irrelevant. No adoption could during her existence be made by her mother-in-law, Yamunabai.
2. We must, accordingly, reverse the order of the District Court remanding the cause to the Subordinate Judge; and as no other point was put in issue before the District Court, we restore the decree of the Subordinate Judge with costs throughout on the respondent.