1. The plaintiff sued for a declaration that he was the lawfully adopted son of the deceased Vishnudas, who died in 1911, leaving the first defendant, the widow, him surviving. On an application to the District Court under Act VIII of 1890, defendants Nos. 2 tc5 were appointed guardians of the person and property of defendant No. 1, and in that capacity defendants Nos. 2 to 5 took the property in their possession and began to manage it. The plaintiff claimed that he was adopted on the 2nd May 1914 sihen the first defendant, the widow, was sixteen Years and eight months old. There is no doubt that the adoption ceremony took place. But We should have thought that the very fact that the adopted son was the son of a certificated guardian would be quite sufficient to throw suspicion on the whole transaction, and would throw the onus on the plaintiff to show that it was a valid adoption brought about with the free consent of the first defendant.
2. In the Trial Court various issues were raised. The principal issue was : Is it proved that the, alleged adoption was brought about by fraud, coercion and undue influence exercised on defendant No. 1. After a very careful lengthy consideration of the evidence on that point, the learned Subordinate Judge came to the conclusion that the proper finding on that issue was in the affirmative. Consequently, the plaintiff's claim was rejected.
3. Then in appeal the question arose whether the suit as framed was tenable. Eventually, the Assistant Judge directed a remand of the suit to the lower Court for taking necessary action in the light of his judgment and returning the record and proceeding together with its fresh findings on Issues Nos. 12 and 15, if necessary, within two months. Now, Issues Nos. 12 and 15 were as follows : (12) Is the plaint properly stamped? and (15) Is the claim property valued for purposess of jurisdiction? The remand was made to enable the plaintiff to elect whether he should amend the plaint and pay the additional Court-fees.
4. When the case was returned to the Subordinate Judge, the plaintiff was not prepared either to add a prayer for possession or to pay the Court-fees on the value of the property. The Subordinate Judge, therefore, returned the. record of the suit just as it stood to the Appellate Court.
5. Then two preliminary objections were raised against the competence of the appeal. It was pointed out that the Trial Judge held that the proper claim of the plaintiff was worth Rs. 56,000 and hence his finding on the question of adoption was recorded in his capacity as a First Class Subordinate Judge; so that an appeal lay to the High Court, and not to the District Court. The Assistant Judge did not agree with that view. He thought the lower Court had found that the claim should have been for possession, and in that case its value would be Rs. 56,000. But the plaintiff did not choose to make that claim, and if the plaint was not amended, the value of the claim was not enhanced by the mere finding that it required to be amended. So that, as the suit as framed was not one of special jurisdiction, and as the plaintiff refused to amend his plaint, the appeal lay to the District Court. He, therefore, ordered the appeal to be set down for hearing on merits; and, eventually, it came on before the District Judge.
6. Unfortunately, the points argued in appeal are not set out. But in appeal, as in the lower Court, the important issue must have been the original Issue No. 9 which was purely a question of fact, and the District Judge in dealing with the remarks of the Judge in the Court below came to the conclusion that the findings were correct; and it appears to us that there is no question with regard to one whom the onus lay, as all the evidence and everything that the defendant could urge on the question of undue influence Was supported by the evidence she adduced and it was on that evidence that the Subordinate Judge found, that the adoption was not made with the consent of the first defendant.
6. But we also think the Judge was right in referring to the case of Bayabai v. Bala 7 B.H.C.R.. 1 and we are not justified in disregarding what was said by the learned Judges in that case. At page 20 their Lordships say :
Not only, was the appellant a Hindu female, whom the law only barely recognises as sui juris--so careful does it require that the Court should be in ascertaining that she has full knowledge of the nature and consequences of any acts affecting her legal rights, which she has been induced to perform--but she was only seventeen years of age at the time of the alleged adoption (as was, admitted in the course of the argument), and she could have had little more experience or knowledge of the world than a mere child. If she adopted or assented to the adoption of, the infant plaintiff at all she manifestly did so at the suggestion of the Brahmans, Gumastas, and clerks who surrounded her, and who were the real actors on the occasion, and who were disirous to transfer to their own hands the control and management of Ramakant's property and firm during the minority of the infant plaintiff. Looking at the effect of adoption upon the rights of a Hindu woman who succeeds to the property of her husband, we should expect clear evidence that she was fully informed of those lights, and of the effect of adoption upon them;--an act which reduces her from the position of complete and absolute distress of her husband's moveable property, and tenant, for life at least, of his immoveable property, to a mere right of maintenance. Hindu women should be shielded from cajolery and, undue influence with nearly all the jealous strictness with which the rights of a minor or other persons not sui juris are watched--not an iota of which strictness should be abated in the instance of a widow just emerging from infancy, as was the case with the appellant at the time of the alleged adoption. Some relaxation of this strictness would, of course, be allowable in the case of a Hindu woman whose husband has directed that she should adopt. She is then under at least a moral duty to adopt, and the act of adoption by her is one which may justly be expected. It is different in the case of a woman whose husband leaves no such direction, because the act is one in derogation of her own right, and not in obedience to any order of her husband, and especially so in this case, in which the husband, from an anxiety to preserve his estate in tact for his wife, has positively refused to adopt. If the conscience of the Court were satisfied that the widow voluntarily performed the ceremonies absolutely essential for adoption, and had been previously fully informed, first, of her rights and secondly, that the effect of an adoption upon them would be wholly to divest her of those rights and to reduce her to a maintenance, it would be the duty of the Court to uphold that act, of adoption, supposing the law to be that a widow may, at this side of India, adopt ,a son without the express authority of her husband-a question on which we do not consider it necessary, nor do we propose now, to express any final opinion.
7. Therefore, that case is clear authority for the proposition that in the case of a Hindu widow of immature age, the Court is bound to consider all the circumstances surrounding the adoption set up, which she disputes as not having been made by her of her own free will; and it is difficult to imagine a stronger case than this, in which the adopted son is the son of a certificated guard an. We should have thought ourselves that the onus would certainly lie1 on the plaintiff to satisfy the Court that all the precautions had been taken which were necessary to satisfy the Court that the adoption was made with the free consent of this girl. The appeal must be dismissed with costs. Separate sets of costs.
8. Nothing that we have said above is meant to diverge from the view we stated at the commencement of the judgment that it is a pure question of fact from which no second appeal is competent.