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Against them decree, Munnalal, Ramchand, Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High Court of Madhya Pradesh. During the pendency of this appeal Khilonabai died on July 3, 1956 and Ramchand and Munnalal applied to be impleaded as her legal representatives in respect of the interest in the property awarded to Khilonabai by the preliminary decree. By order dated December 12, 1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of ss. 15 and 16 of the Hindu Succession Act, 1956 which was brought into operation on June 14, 1956, and that the sons- of Munnalal, Ramchand and Padam Chand could not take a share in Khilonabai's interest.

Before the High Court two questions were canvassed: (1) as to the factum and validity of the adoption of Rajkumar, and (2) devolution of the share of Khilonabai declared by the preliminary decree on her death. The High Court upheld the finding of the trial Court that Rajkumar was in fact adopted by Bhuribai as a son to her husband on July 26, 1952, and that amongst the Jains residing in the North West Province, Central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in that behalf In so holding the High Court relied upon the judgments of the Privy Council in Pemraj v. Mst. Chand Kanwar and Mangibai Gulabchand v. Suganchand Baikamcand (1). But the High Court diclined to accept the view of the trial Court that the right of Khilonabai declared by the preliminary decree devolved upon Munnalal and Ramchand alone. In their view, Khilonabai's interest under the decree being incohate was not "Possessed" by her within. the meaning of s. 14 (1) (1947) L.R. 74 I.A. 254.

(2) A.I.R. (1948) P.C. 177.

of the Hindu Succession Act, 1956, and on her death it merged into the estate, The High Court observed : "The result is that the interest of Smt. Khilonabai remained incohate and fluctuating so that after her death, the interest declared by the preliminary decree is available for partition as joint family property and consequently ss.15 and 16 of the Hindu Succession Act are inapplicable to the interest. As the property never became her absolute property by virtue of s.14 of the Act, the same remained joint family property." Accordingly the decree of the trial Court was modified and 1/3rd Share in the joint family property was awarded to Rajkumar, 1/3rd to the branch of Munnalal and the remaining 1/3rd to the branch. of Ramchand and adjustments were made on that footing in the shares of the plaintiff and other members of the family. In this appeal by defendant No. 1 (Munnalal) 2 (Ramchand) and 4 to 10, three contentions were raised : (1) in the absence of express authority from her husband, Bhuribai could not adopt a son, (2) that the 'interest of Khilonabai under the preliminary decree became her absolute property by virtue of s.14 of the Hindu Succession Act, 1956 and on her death it devolved upon her grandsons Munnalal and Ramchand- defendants 1 and 2-and (3) the trial Court was in error in- delegating to a Commissioner judicial function, such as, ascertainment of property to be divided and effecting parti- tion.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or- under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

Section 15 provides:

"115 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-