Adoption by widows - validity

 Adoption by widows validity

The question of validity of the adoption is raised in this case.

The properties belonged to the father and his son (father Sampanghi Rame Gowdu and son Byre Gowdu). The father and son separated  and it was agreed as one of the terms of the partition that the father’s estate should be held during his lifetime by his second wife Lakshmakkal and on her death should go to Byre Gowdu (the son by the first wife).

After father’s death, his second wife Lakshmakkal transferred those properties to her nephew the first defendant. 

Son Byre Gowdu had two wives. The first wife was the plaintiff and the second wife was one Ramakkal. Neither of them had any children. 

Byre Gowde died in 1909 leaving a will which concludes the following sentence: “…if after my lifetime, both of you (that is, the two wives) do not agree to live together dividing the said properties into two equal shares, you shall separately make adoptions….”

After the death of Byre Gowde, the junior widow, Ramakkal adopted the second defendant. At the time of adoption, the two wives who are sisters, were living together. The first wife, the plaintiff, made any objection to the adoption; but did not consent to it. The adopted son lived with the two widows for many years without his status being questioned.

Father – Rame Gowde (two wives) 2nd wife Lakshmakkal (died in 1932).

Son – Byre Gowde (through first wife)

Byre Gowde - Two wives, Second wife Ramakkal. 

Byre Gowde’s second wife Ramakkal died in 1950. Only Byre Gowde’s senior widow (plaintiff) & the adopted son by the Junior widow (second defendant) alone were living at the time of this suit.

Senior widow questioned the adoption of that adopted boy, adopted by the Junior widow.

The Privy Council in Akhoy Chunder Bagchi v. Kalaphahar Haji (1885) LR 12 IA 198 (PC) dealing with a case in which two widows were each authorised to make adoptions and in pursuance of that authority made simultaneous adoptions, held (1) firstly that the instrument should be construed on the assumption that the person giving the authority intended his widows to do that which the law allowed and not to do something which was if not absolutely illegal, very unusual and not practiced among Hindus. (2) Secondly, their Lordships held that simultaneous adoptions by two widows were contrary to law.

Ranjit Lal Karmakar v. Bijoy Krishna Karmakar (1912) ILR 39 Cal. 582. That case concerned an instrument which authorised two widows to act according to their religious tenets by adopting three sons successively. It was held following the Privy Council decision just cited that the instrument must be read not as authorising an illegal simultaneous adoption but as giving power of adoption to the widows successively and that this being so the elder widow had the prior right to exercise the power of adoption and that the younger widow had no right to adopt before the elder widow had exhausted her right or refused to use it. The reasoning is that such a construction is not contrary to the terms of the instrument and is in accordance with the ordinary rule of Hindu law.

Therefore, in this case – second wife Ramakkal’s adoption was valid.  The instrument (Rame Gowde’s will) might be read as authorising each of the widows to make an adoption either simultaneously or one after the other, in which case there might be living contemporaneously two adopted sons to one man, a notion repugnant to Hindu law. 

Under the ordinary rules of the Hindu law, whereby the refusal to adopt by the senior widow or her consent would be a necessary preliminary to a valid adoption by the junior widow. On the finding of the fact, it must be held that there was no such refusal to adopt by the plaintiff nor was there any consent to the adoption. It follows that the adoption is invalid.

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