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2. The view taken by the District Judge as to the senior widow's consent is in accordance with a subsequent and very recent decision of Sankaran Nair and Spencee, JJ., in Kakerla Chukkamma v. Kakerla Punnamma (1914) 28 M.L.J. 72, where it was held that the senior widow has a preferential right to adopt, and that, so long as such preferential right subsists, the junior widow has no right to adopt. The learned Judges, one of them a Hindu Judge of long experience, based the decision not only on the decisions of the Bombay and Calcutta Courts but also on the preferential right of the senior widow to perform religious acts such as adoption.

3. The question which is one of considerable importance and had not previously come before this Court has again been very ably and elaborately argued before us by Mr. A. Krishnaswami Ayyar for the appellant and by Mr. T.V. Venkatarama Ayyar for the respondent; and after a careful consideration of their arguments I see no reason to differ from the conclusions arrived at by the learned Judges or the grounds on which it was based.

4. The preferential right of the senior wife as regards religious acts is in my opinion clearly established. The Mitakshara, Book 1, Chapter III, verse 88, which has been specially translated for us, first cites the text of Yagnavalkya "when there is a wife of an equal class present, never do acts of religion with any other. When there is more than one wife of the same class as yourself in matters of religion never employ any but the eldest." On this Vignaneswara comments as follows: "When there is a wife of equal class never do acts of religion with wives of any other class, When there are several wives of the same class in matters of religion do not pass over the eldest wife and do not employ either the second or the third (lit. the middle or the youngest one)." See also Colebrook, volume 2, Digest, pages 124 to 126. The senior widow's preferential right of adoption is expressly recognised in Steele's Law and Custom of Hindu Castes, page 48, which embodies the results of an enquiry held in the year 1831 as to the Hindu customs and usages prevailing in fie Deecan; and in Padaji Rao v. Rama Rao (1888) I.L.R. 13 Bom. 160 at p. 166, Sargent, C.J., after referring to this passage observed that the superior right of the elder widow was doubtless based on her being the patni (sic) and as such entitled to take part with her husband in all religious ceremonies. I think that here the learned Judge was only offering an explanation of the usage prevailing in the Deccan, and even if, as contended by the appellant, he was mistaken in supposing that the senior wife alone was entitled to be styled patni, I do not think that matters much, as it does not affect the preferential right of the senior wife to perform religious acts. As regards the meaning of patni (sic) it appears from the passages in the Mitakshara and Viramitrodaya referred to in Janokinath Mukhopadhya v. Mathuranath Mukhopadhya (1883) I.L.R. 9 Calc. 580 at p. 583, that the celebrated grammarian Panini considered that the word had been formed by affixing the particle ni (sic) to pati (sic) (husband) to signify one who partakes in the holy sacrifices. Fanciful as this may be, it was of course accepted on Panini's authority by the commentators, and Vignaneswara after referring to it states that all the wives were to be regarded as patnis and as such entitled to share in the inheritance. The omission in Colebrook's translation of the Mitakshara of this passage which is now accepted as genuine was responsible for Strange's view that the senior widow alone was entitled to succeed, a view which had been overruled by Kissen Lata v. Javallah Prasad Lala (1867) 3 M.H.C.R. 346 at p. 351, and by the Privy Council in Gajapathi Nilamani v. Gajapathy Radhamani (1876) I.L.R. 1 Mad. 290 at p. 293 (P.C.), which only left her the exclusive right of management until partition. Admitting howover that the junior wives are patnis in the sense of being capable of partaking in sacrificial acts, it still remains true on the express authority of the Mitakshara already cited, that the senior wife has the preferential right, as regards religious acts, and this appears to me to be a sufficient foundation for her preferential right as to adoption.

5. It is then said that the learned Judges were wrong in applying the Bombay rulings--Rakkhmabai v. Radhabai (1868) 5 Bom. H.C.R. 192 (A.C.J.), and Padaji Rao v. Rama Rao (1888) I.L.R. 13 Bom. 160 at p. 166--to this Presidency and that these decisions are opposed to the decisions of the Privy Council with reference to adoption in this part of India beginning with The Ramnad Case (1886) 12 M.I.A. 397. Bat, as pointed out by their Lordships in that case, the law of adoption in all these presidencies rests on the text of Vasishta; " nor let a woman give or accept a son without the consent of her lord," and the main difference is as to the circumstances in which such consent should be considered to have been given, evidence of express authority being required in Bengal, whereas in Bombay it is presumed except in cases where the husband was the member of a joint family where the consent of the managing member is required, while in Madras, as held by their Lordships in the Ramnad case on a variety of ' considerations the want of the husband's consent may be supplied by the consent of his kindred. Following Bombay decisions the Calcutta High Court has recently held that, where the husband authorized his two widows to adopt, he must be held to have intended the senior widow to have the preferential right. The Bombay decisions, Jenkins, C.J., observed "rest upon fundamental principles and on views of Hindu life and economy which appear to me to be fully applicable here. Any other view would merely lead to an unseemly scramble for the purpose of performing this solemn act." Ranjit Lal v. Bijoy Krishna (1912) I.L.R. 39 Calc. 582 at p. 586. These observations in my view are equally applicable in this Presidency...where, as observed by their Lordships in Sri Virada Pratapa Raghunada Deo v. Sri Brozo Kishoro Patta Deo (1876) I.L.R. 1 Mad. 81, the law in this respect is something intermediate between the stricter law of Bengal and the wider law of Bombay. Further in view of the inconveniences attendant on simultaneous rights of adoption, and in the significant absence of any evidence that such an equal right has ever been claimed in our Courts for junior widows prior to these two cases, I think the onus is on those who assert it to show that the law in Madras differs in this respect from that which prevails in the adjoining presidency. In the case of impartible estates the estate necessarily vests in the senior widow, and the result of holding that the junior widow with the consent of a majority of the sapindas has the right to adopt without reference to the senior widow would be to render the latter's tenure of the estate exceedingly precarious. The absence until now of any such attempt by the junior widow and sapindas goes far to show that the rule in this presidency has been the same as in Bombay, and that we should effect an innovation by holding otherwise.

7. The decision of the Bombay High Court in Rakkhmabai v. Radhabai (1868) 5 B.H.C.R. 192 (A.C.J.) that the senior widow is entitled to adopt without the consent of the junior widow, and the decision of this Court in Narayanasami Naik v. Mangammal (1905) I.L.R. 28 Mad. 315 that in this part of India the senior widow with the consent of the kinsmen may proceed without the consent of the junior widow must be considered as proceeding on a recognition of the senior widow's preferential right, and are no authority for holding that the junior widow may adopt without the senior's consent.