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Thakurji by Budhsen and anr. Vs. Parmeshwar Dayal, After Him His Son Lal Chandar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal Nos. 45, 76 and 195 of 1947
Judge
Reported inAIR1960All339
ActsUttar Pradesh Court of Wards Act, 1912 - Sections 37, 38 and 53; Hindu Law; Evidence Act, 1872 - Sections 11, 32 and 157; Code of Civil Procedure (CPC) , 1908 - Sections 35
AppellantThakurji by Budhsen and anr.
RespondentParmeshwar Dayal, After Him His Son Lal Chandar and anr.
Appellant AdvocateG.S. Pathak, ;S.N. Sen, ;S.N. Katju and ;D.D. Seth, Advs.
Respondent AdvocateG.P. Bhargava, ;S.B.L. Gaur, ;R.N. Sen, ;Shadi Lal Nigam, ;Kripa Shanker Sinha, ;Shanker Sahai Verma, ;Ganesh Prasad, ;K.L. Misra, ;Harnandan Pd., ;S.C. Khare and ;R.K. Shukla, Advs.
Excerpt:
(i) family - adoption - sections 37 and 53 of u.p court of wards act, 1912- sanction to adopt granted to a hindu widow - can be challenged on ground of absence of authority from husband. (ii) hindu law - alienation by widow - widow may alienate for two purposes - firstly for certain essential and obligatory purposes - empowered to sell the whole property to meet expenses - secondly for non essential or non obligatory purposes - allowed to alienate to a limited extent. (iii) coparcener - section 35 of code of civil procedure, 1908 - property held in co-ownership - suit by co-parceners against trespassers without title to the property - decree for the benefit of all co-parceners - held, separate costs not to be paid by proforma defendant who is one of the coparceners. - - the.....roy, j.1. these are three connected first appeals by the defendants. they arise out of a suit which had been instituted by two plaintiffs, parmeshwar dayal and rai amar nath agarwal, in which various relief were claimed inclusive of possession over certain property and mesne profits. parmeshwar dayal claimed as the nearest reversioner of rai partap chandra who was the last male-holder of this property, and rai amar nath agarwal came as an assignee from parmeshwar dayal to the extent of 6/16th share in the said property by a deed dated the 21st of november, 1944, executed in his favour.2. rai pratap chandra, who was the last male-holder of this estate known as the phulpur estate, was a twice-born hindu governed by the mitak-shara school of hindu law. he was the only son of rai manik chand......
Judgment:

Roy, J.

1. These are three connected First Appeals by the defendants. They arise out of a suit which had been instituted by two plaintiffs, Parmeshwar Dayal and Rai Amar Nath Agarwal, in which various relief were claimed inclusive of possession over certain property and mesne profits. Parmeshwar Dayal claimed as the nearest reversioner of Rai Partap Chandra who was the last male-holder of this property, and Rai Amar Nath Agarwal came as an assignee from Parmeshwar Dayal to the extent of 6/16th share in the said property by a deed dated the 21st of November, 1944, executed in his favour.

2. Rai Pratap Chandra, who was the last male-holder of this estate known as the Phulpur estate, was a twice-born Hindu governed by the Mitak-shara School of Hindu Law. He was the only son of Rai Manik Chand. The collaterals of the family lived separate from them for a long period. Rai Pratap Chandra died on the 3rd of January, 1901 at the age of about thirty years, leaving behind his widow Rani Gomti Bibi aged about twenty-five years. Upon the death of Rai Pratap Chandra, she came into possession of the entire estate as a Hindu widow; and within six years of her husband's death, she made four transfers involving considerable property of the deceased.

Two such transfers were evidenced by the document Ex. 70 dated 24-11-1901 and by the document Ex. 30 dated 17-12-1907 made in the form of gifts to Baldeo Prasad and Bhagwan Prasad who were members of the family of the spiritual Guru, covering property worth Rs. 1400/- and Rs. 7,582/9/6 respectively which had been held by defendants nos. 3 to 8 at the date of the suit. This property, although the subject of claim, was abandoned at the trial when the plaintiffs gave up their claim in 'respect of the same. The Other two transfers made by her were evidenced by the document Ex. 20 dated 25-9-1902 and by the document Ex. A-5 dated 19-8-1904 by which she purported to endow properties worth Rs. 5,00,000/- and Rs. 1,76,000/- respectively to certain deities and to officer charitable objects,

Under both these deeds she constituted her brother Gaya Prasad as mutwalli and manager of the properties. In one of these deeds a salary of Rs. 250/- per month together with certain other perquisites and allowances were given to Gaya Prasad; and in the other a salary of Rs. 100/- per month were given to him. These two transfers were challenged in the suit on the ground that they were illusory, colourable and sham transactions, made without any authority with the object of benefiting the favourites of Rani Gomti Bibi and to defeat the reversionary interest in the estate.

3. It would be necessary to give a brief history of the matter culminating in the present litigation. By a Notification dated July 17, 1920, Rani Gomti Bibi was disqualified to manage her estate; and under the U. P. Court of Wards Act of 1912 the Court of Wards assumed superintendence of so much of the said estate as was then recorded in the name of Rani Gomti Bibi after excluding the properties which were the subject of the aforesaid transfers of 1901, 1902, 1904 and 1907. During the management of, and superintendence by, the Court of Wards Rani Gomti Bibi under colour of an oral authority alleged to have been given to her by her late husband to adopt a son to him, adopted one Bindeshari Prasad, a boy of her husband's family, on the, 21st of February, 1923.

The adoption was made without the consent in writing of the Court of Wards despite the disability which attached to the ward under Section 37(b) of the U. P. Court of Wards Act (No. IV of 1912), which enjoined that a ward shall not be competent to adopt without the consent in writing of the Court of Wards. The Court of Wards made an inquiry through the Collector of Allahabad as to the existence of the alleged oral authority of Rai Pratap Chandra. The Collector recorded the statements of the witnesses cited on behalf of Rani Gomti Bibi, and found that evidence so conflicting and unreliable that ho was driven to the conclusion that the alleged authority did not in fact exist.

The Court of Wards, therefore, refused to recognise the adoption. Rani Gomti Bibi had specified the names of seven persons before whom the alleged authority to adopt had been given. But out of those persons three were dead. Of the persons who were alive. Mr. Kanhaiya Lal, the legal adviser of the family, did not appear before the Collector as a witness. The statements of the other three who were examined by the Collector were, according to the Collector, 'conflicting, unacceptable and Unreliable.'' The Collector, therefore, reported againsf the permission; and the Board of Revenue refused to grant consent under Section 37 of the Court of Wards Act to Rani Gomti Bibi to adopt a son.

In making that refusal the Board of Revenue and the Court of Wards had kept in view the guiding principles contained in Section 37, which provided that the Court of Wards shall not withhold its consent if the adoption is not contrary to the personal law applicable to the ward and does not appear to cause pecuniary embarrassment to the property or to lower the influence or respectability of the family in public estimation.

4. It may be stated here that the exercise of any discretion conferred on the Court of Wards by Section 37 of the Act could not be questioned in any civil court in view of Section 53 of the same Act. Rani Gomti Bibi had adopted Bindeshari Prasad without caring to obtain the sanction of the Court of Wards. The sanction which, she sought from the Court of Wards or the Board of Revenue alter making that adoption was, therefore, not in the nature of a sanction to make an adoption but in the nature of something to put a seal to the adoption already made.

Indeed the anxiety on the part of Rani Gomti Bibi, influenced as she was by her brother Gaya Prasad, to stick to that adoption in spite of the infraction of the provisions of Section 37 of the Act was so keen that in the proceedings before the Collector in 1923 she had to resort to conflicting and untrue submissions, at one time saying that 'she had really adopted Bindeshri Prasad on 21-2-1923' and at another time saying that in view of the permission to adopt given to her by her husband she allowed Bindeshri Prasad to live in her house from the 21st of February 1923, and that she desired to perform the rights and ceremonies according to law in the month of Baisakh next.''

These latter and inconsistent allegations were made by her in her petition dated the 13th of March, 1923, to the Collector, and it was later on sought to be explained on her behalf in Suit No. 245 of 1925, to which she was a party, by the affidavit Ex. 37 of her servant Ramdhan, who stated that at the time of sending the petition dated 13-3-1923 she got it written by Bishambhar Nath, her Sarbrahkar, who had suggested the contents and had advised her that if she stated that the adoption had already taken place, the Court of Wards might blame her for taking that stop without reference to them and that, acting upon that advice and thinking that it would facilitate the securing of the permission of the Court of Wards, she agreed to submit that petition. Be that as it may, the affidavit Ex. 37 referred to above furnished proof of the fact that Rani Gomti Bibi was prone to influences and was susceptible to advancing wrong allegations in order to suit the exigencies of the situation.

5. The Suit No. 245 of 1925 aforesaid had been instituted in the court of the Subordinate Judge of Allahabad by Parmeshwari Dayal the present plaintiff No. 1, along with the reversioners of that time including the present defendants nos. 11 to 13, for declaration that the adoption of Bindeshri Prasad was invalid. The suit was resisted by Rani Gomti Bibi and others and, inter alia, it was pleaded that Rai Pratap Chand had given her the permission to adopt and that the adoption was valid. The Subordinate Judge, without going into the question as to whether Rai Pratap Chandra had given the necessary permission, held that the adoption by a Hindu widow, during her disability as a ward, in contravention of Section 37 of the Court of Wards Act, was invalid.

The adoption of Bindeshri Prasad was therefore not upheld, The decision of the Subordinate judge in that matter was given on the 21st of August, 1926. Rani Gomti Bibi was undeterred by that decision; and, again under the influence of her brother Gaya Prasad, of which there is ample proof on the record, made another bid in the year 1927 to make a fresh adoption of Dwarka Nath, the present defendant No. 10; and with that end in view she made a fresh move to the Court of Wards for the necessary sanction under Section 37 of the Act.

This Dwarka Nath was the son of Sarda Prasad, the real brother of Bindeshri Prasad, who was formerly adopted by her without the consent of the Court of Wards. The Board of Revenue by a letter Ex. B-12 dated the 4th of May, 1928, desired the Commissioner to ascertain whether the boy suggested by the lady was fit for adoption in all respects, and whether his selection conforms to the religious usages of her caste.

Whilst that matter was under investigation report Ex, B-16 had been made by the Sub-Divisional Officer of Phulpur to the Collector of Allahabad, stating that as desired by the Collector the S.D.O. had a talk with Rani Gomti Bibi and with Gaya Prasad about the desirability of their applying to the Board of Revenue for taking over the entire management of the endowed property under the management of the Court of Wards; that neither of them were agreeable to the proposal; that Gaya Prasad was averse to the management of the endowed property passing out of his hands, that Gomti Bibi was also averse to the proposal of the Court of Wards taking management of the endowed property so long as Gaya Prasad was the manager; that she was greatly under the influence of Gaya Prasad and his men and was keen on adoption and that the best course would be that permission to adopt is given to her and that when the Rani dies the adopted son would be the ward of the Court of Wards and the Court of Wards can then on behalf of the ward take possession ot the endowed property and even challenge its validity.

The Board of Revenue by its letter Ex. 11-21 dated September 22/24, 1928 to the Commissioner of Allahabad stated that the previous proceedings before the Collector by which permission was refused were of a purely formal character, and that Rani Gomti Bibi should bo given a fresh opportunity to prove that she had the necessary authority to adopt; that the validity of the adoption now proposed hinged entirely cm this question of valid authority and that it seemed possible that she realty had reliable evidence at her command.

The Board further stated in that letter that certain witnesses were mentioned in the statement of Gaya Prasad given in Suit No. 245 of 1925 of the court of the Subordinate Judge of Allahabad, and the Board required the Collector to question and record the statements of the witnesses who were named in that statement of Gaya Prasad, or of as many as are available, and to weigh up the value of their statements alter careful questioning and scrutiny. When the matter was pending before the Collector, two lists were submitted to him on 13-10-1923 by Gaya Prasad of persons in whose presence the alleged permission to adopt was said to have been given by Rai Pratap Chandra.

One such list was Ex. B-22 consisting of the names of six persons who were dead, They were Pandit Sita Ram, Rai Bahadur Sitla Baksh Singh retired Tehsildar, Babu Datti Lal Vakil legal adviser of the Phulpur estate, Babu Mahesh Prasad Vakil and Munshi Kanhaiya Lal Vakil, both legal advisers of the estate, and Raja Uagho Prasad Narain Singh of the Baroan estate in the district of Allahabad. In that list Ex. B-22 it was mentioned that Rai Bahadur Sitala Baksh Singh & Raja Ragho Prasad Narain Singh were intimate friends of the late Rai Pratap Chandra, and that Raja Ragho Prasad Narain Singh was alive at the lime when Gaya Prasad had made his statement in the earlier Suit no. 245 of 1925,

The other list submitted by Gaya Prasad to the Collector on 13-10-1928 was the list Ex. B-23 consisting of another six names of living persons be/ore whom the alleged permission was said to have been given by Rai Pratap Chandra. These names consisted of La]a Madho Prasad, Babu Ram Kishan, Shital Shukul, Bhojraj, Dr. Chunni Lal Dube and Thakur Jagmohan Singh. The Collector after examining the six surviving witnesses submitted a report Ex, B-31 dated the 20th of December, 1928, and his conclusion was that

'it may be accepted that Rai Bahadur Pratap Chandra did make a public mention of his desire that his widow should adopt a son.'

We have already referred to the report Ex. B-16 dated the 2nd of June, 1028, by the Sub-Divisional Officer of Phulpur to the Collector of Allahabad. A few days after the date of that report, the Board of Revenue by a letter Ex. B-15 dated the 22nd of June, 1928, to the Commissioner mentioned that it seemed probable that as soon as the adoption takes place under the Hindu Law the adopted boy becomes the full 'proprietor of the property and the adoptive mother is reduced to the status of a Guzaredar and that therefore the Collector of Allahabad should report whether Rani Gomti Bibi realised that position, and, if so, her statement should be obtained and forwarded to the Board. Rani Gomti Bibi's statement Ex. B-17 was thereupon recorded by the Special Manager, Court of Wards, who was also the S.D.O. of Phulpur, on the 8th of July, 1928, and it was forwarded by the Collector to the Commissioner of Allahabad under letter Ex. B-18 dated 10-7-1928.

The Board of Revenue ultimately by its letter Ex. B-33 dated the 7th of March, 1929, to the Commissioner gave permission to Rani Gomti Bibi to adopt Dwarka Nath as proposed by her. It is not now disputed before us that after that permission was obtained by her she adopted Dwarka Nath on 27-11-1929 with due ceremonies.

6. After the adoption of Dwarka Nath the Court of Wards released the estate of Rani Gomti Bibi, and again assumed superintendence of the estate, with effect from the date of adoption, on behalf of Dwarka Nath. Rani Gomti Bibi died on 5-1-1943, and on 21-5-1945, the present suit was filed. The plaintiffs alleged that upon the death of Rai Pratap Chandra, Rani Gomti Bibi inherited a widow's estate; that Rani Gomti Bibi was an ignorant, illiterate and pardanashin lady greatly under the influence of the Brahmins and the priests, and particularly Gaya Prasad her brother, who taking advantage of the situation and to serve their own selfish ends, made her commit various acis of waste and mismanagement as a result of which the bulk of the personal estate left by Rai Pratap Chandra was dissipated and a large portion of the estate was colourably and fraudulently transferred to the prejudice of the reversionary heir.

The plaintiffs further contended that the deed Ex. 20 dated 25-9-1.902 and the deed Ex. A-5 dated 19-8-1904 (with which alone we are now concerned, the case with regard to the other two deeds Ex. 70 and Ex. 30 dated 24-11-1901 and 17th December 1907 respectively having been abandoned at the trial) though executed ostensibly to confer spiritual benefit on Raj Pratap Chandra were actually executed to benefit Gaya Prasad and his descendants.

7. Budhsen, the son of Gaya Prasad, who by then was dead, contested the suit on his own behalf and on behalf of the deities, He pleaded that according to the custom prevailing in the family of Rai Pratap Chandra, a widow who succeeds to her husband has full power of disposal over the assets inherited by her, and according to that custom it was open to Rani Gomti Bibi to make alienations which would enure beyond her life-time. He contended that the endowments dated 25-9-1902, and the 19th of August 1904, were valid transactions and were not open to challenge by the reversioner.

He further contended that Rai Manik Chand and Raj Pratap Chandra were both of very charitable disposition and devoted to religion and they spent large sums of money over objects of charity and that Rai Pratap Chandra had declared his intention of endowing a large part of his estate for Sadabrat and for the benefit of different idols, and that before his death he had given instructions to Rani Gomti Bibi to create trusts and endowments., the subject matter of the two aforesaid documents. It was asserted that as the endowments were created in pursuance of the will of the last male-holder, the said trusts and endowments were binding upon the reversioner.

Apart from the alleged oral will of Rai Pratap Chandra, it was contended by these defendants that Rani Gomti Bibi was competent under the Hindu Law to create these endowments with a view to confer spiritual benefit upon the soul of Rai Pratap Chandra, and that they were not illusory or colourable ones. It was farther contended by them that Rani Gomti Bibi was not an illiterate lady and was not under the influence of Gaya Prasad or of the Brahmin priests. The pedigree set up by Parameshwar Dayal, although denied by these defendants, was held amply proved, and it is not now disputed before us that plaintiff No. 1 is one of the nearest reversioners of Rai Pratap Chandra deceased, the other reversioners being defendants Nos. 11 to 13.

8. The Collector of Allahabad, in charge of the Phulpur estate, did not admit the validity of the alienations made by Rani Gomti Bibi and reserved his right to seek remedy in future. The Collector asserted on behalf of the estate and on behalf of Dwarka Nath, the adopted son, that Rai Pratap Chandra had given authority to Rani Gomti Bibi to adopt a son to him and that the adoption was, therefore, valid and binding.

A point of law had been raised by the Collector to the effect that, in view of the sanction given by the Court of Wards under Section 37 of the Court of Wards Act, the validity of the adoption and the factum of any previous permission having been given under the Hindu Law could not be brought into question in a court of law in view of Section 52 of the Court of Wards Act, and that when the sane-lion was given by the Court of Wards, the Court of Wards did as a matter of fact consider the question whether the husband had given permission and that, having satisfied itself that such permission was in fact given, the sanction was given and the question cannot therefore be reagitated in a civil court as it would be tantamount to questioning the discretion exercised by the Court of Wards, which is prohibited by Section 53 of the Act,

Some of the other defendants also contested the suit and a number of issues were raised. The court below found that Section 37(b) of the U. P. Court of Wards Act (No. IV of 1912) creates only a disability in the ward in so far as it says that a ward shall not be competent to adopt without the consent in writing of the Court of Wards; that proviso 1 to that section which says:

'Provided, first, that the Court of Wards shall not withhold its consent .... it the adoption. . .. . .is not contrary to the personal or special law applicable to the ward, and does not appear likely to cause pecuniary embarrassment to the property or to lower the influence or respectability of the family in pubilc estimation;'

only provides a guiding principle upon which the Court of Wards is to act in granting or in withholding consent; that under Section 53 of the same Act, which says:

'53(1) The exercise of any discretion conferred on the State Government or the Court of Wards by this Act shall not be questioned in any civil court,'

what the civil court is prevented from questioning is the discretion given to the Court of Wards in giving consent to the ward to adopt or not to adopt, and that it does not forbid the civil court to question the validity of the adoption upon the suit of a reversioner on the ground that there was want of permission to adopt by the husband. The court below also found that Rai Pratap Chandra did not give any authority to Rani Gomti Bibi to adopt a son to him after his death and the adoption of Dwarka Nath was, therefore, contrary to law and was void.

The Court below further found that the transfers for charities having been beyond the powers of the widow, were also void. Findings were reached by the court below in certain other issues as well; but we arc not concerned with those findings now as they have not been assailed before us by learned counsel. The court below granted a decree in the following terms:

'Suit decreed for possession of the properties entered in Schedule A, B, C, D and F against the defendants 1(a), l(b), 2(a), 2(b), 9 and 10 and for recovery of mesne profits to the extent of Rupees 1,30,830/- against the defendants l(a), l(b). 2(a), 2(b) and pending and future mesne profits at the rate of Rs. 52,000/- per year till the date of possession, and for mesne profits to the extent of Rs. 88,000/- against the defendant No. 9 and pending and future mesne profits at the rate of Rupees 35,400/- per year till the date of possession.

The possession and mesne profits arc decreed for the benefit of the plaintiffs and that of the defendants 11 to 13. The claim as to properties comprised in Sch. A is dismissed. The plaintiffs shall get their proportionate costs from the defendants l(a), l(b), 2(a), 3(b) and the defendant No. 9 calculated separately. The fee for lawyers to be taxed shall include the fee payable to the juniors under the rules. The defendants Nos. 3 to 8 shall bear their own costs'.

9. Aggrieved by that decree these three first appeals have been filed by the defendants. First Appeal No. 45 of 1947 is by Budhsen the son of Gaya Prasad, and by the deities. First Appeal No. 76 of 1947 is by the Collector of Allahabad in charge of the estate of Dwarka Nath and also by Dwarka Nath. And First Appeal No. 195 of 1947 is by Murlidhar defendant No. 13.

10. The first question which has been urged before us is that the adoption cannot be questioned in the civil court in view of Sections 37 and 53 of the Court of Wards Act, and it was urged that it was not open to the civil court to enter into a determination as to whether or not permission had been granted by Rai Pratap Chandra to Rani Gomti Bibi to adopt a son to him. In order to examine this matter the relevant parts of Sections 37 and 53 of the Court of Wards Act may be reproduced. They are as follows;

'37. A ward shall not be competent--

(a) . . ...

(b) to adopt without the consent in writing of the Court of Wards;

(c) ......

Provided, first, that the Court of Wards shall not withhold its consent under Clause (b) . . . .if the adoption ... is not contrary to tiic personal or special law applicable to the ward, and does not appear likely to cause pecuniary embarassment to the property or to lower the influence or respectability of the family in public estimation.'

'53. (1) The exercise of. any discretion conferred on. . . . the Court of Wards by this Act shall not be questioned it any civil Court.'

11. Section 37 creates a disability in the ward to adopt a son unless it it backed by the sanction or the consent in writing of the Court of Wards, The first proviso to that section lays clown the principles which the Court of Wards must follow in the, exercise of its discretion in granting or withholding the consent. The proviso says that if the adoption is not contrary to the personal law or special law applicable to the ward, and does not appear likely to cause pecuniary embarrassment to the property or to lower the influence or respectability of the family in public estimation, the Court of Wards shall not withhold its consent. In considering the question whether or not the adoption is contrary to the personal law Or special law applicable to the ward, various considerations would arise. Adoption is not recognised by the Mohammedan Law, nor is it recognised by the English or the Parsi Law. It is recognised by the Hindu Law; but even in that system of law there may be a family or caste custom prohibiting adoption, and, if such custom is proved, effect will be given to it by the Courts. The law as to adoption by a widow is different in different States. In Mithila a widow cannot adopt at all, not even if she lias the express authority of her husband. In Bengal, Banaras and Madras, a widow may adopt under an authority from her husband in that behalf. In the Madras State a widow may also adopt without her husband's authority, if where the husband was scpaiate at the time of his death she obtains the consent of his Sapindas, and where he was joint she obtains the consent of his undivided co-parceners. In the Bombay State, a widow may adopt even without any authority. In all parts of India, except Madras and Punjab, the Jains observe the custom by which a widow is entitled to adopt to her husband without bis authority.

12. The difference of opinion between the various School of Hindu Law arises from different interpretations put upon a text of Vashisht which says ''Nor let a woman give or accept a son unless with the assent of her lord.' Ali the Schools accept the above text as authoritative; but the Mithala School takes it to mean that the assent of the husband must be given at the time of the adoption and, therefore, a widow cannot adopt at all. The Banaras and Bengal Schools interpret the text a.s requiring an express permission given by the husband in his life-time, but capable of taking effect after his death. The Bombay School explains the text away by saying that it applies only to an adoption made in the husband's life-time, and is not to be taken to restrict the widow's power to do that which the general law prescribes as beneficial to her husband's soul. According to this School, the assent of the husband is presumed. The Law in Madras stands intermediate between the Law in Bengal and the Law in Bombay, and according to that School the word 'husband' or ''lord' in the above text is merely illustrative and means the guardians of the widow for the time being, so that the assent of the husband's Sapindas who are the widow's guardians after her husband's death is sufficient to enable her to adopt, but she cannot adopt without their assent, even if he was separate at the time of his death,

13. The factors enumerated above have necessarily to be considered by the Court of Wards in the process of the exercise of its discretion under Section 37 of the Court of Wards Act in finding out whether the adoption is not contrary to the personal law or special law applicable to the ward. Evidently, therefore, when the Court of Wards has to give its consent to adoption by a widow governed by the Mitakshara School of Hindu Law, it has to bear in mind and to find out whether she has an authority from her husband in that behalf. Section 37 of the Court of Wards Act further makes it clear that there may be a case where there is the express authority 0f the husband, yet the Court of Wards may be justified in withholding assent where the adoption is likely to cause pecuniary embarrassment to the property or to lower the influence or respectability of the family in public estimation. The granting of the consent by the Court of Wards, therefore, depends upon a variety of considerations. The express authority of the husband can in certain cases be ignored by the Court of Wards in withholding its assent. The Court of Wards in granting assent cannot be said to substitute an express authority of its own in place of any authority of the husband where in fact such authority of the husband was never expressed or given. Can it therefore be said that where there was really no express authority of the husband, and the Court of Wards on an application by the widow chooses to give her the consent in writing under Section 37(b) of the Act, such written consent gives the final seal to the adoption and its validity on the ground of want of assent by the husband cannot be determined by a court of law, Section 37 of the Court of Wards Act does not, in our opinion, confer upon the consent in writing of the Court of Wards any such effect of a far-reaching character. What Section 53 of the Act says is that the granting of the consent or the withholding of the consent by the Court of Wards in the exercise of its discretion under Section 37 shall not be questioned in any civil court. The Legislature in enacting Section 53 never intended to say that once a consent is given by the Court of Wards under Section 37(b), the civil court is precluded from determining the question as to whether or not there was the express authority of the husband. Section 53 must be given its plain meaning. As we have already indicated, it says that the exercise of any discretion conferred on the Court of Wards shall not be questioned in any civil court. It is obvious that under this section what the civil court is precluded from questioning is the exercise of the discretion and not the reasons which bear upon the sanction. In other words, where the Court of Wards in the exercise of its discretion grants or refuses a sanction, the exercise of that discretion, either one way or the other, cannot be questioned in any civil court. Manifestly, therefore, no suit will lie in a civil court questioning the exercise of the discretion of the Court of Wards under Section 37 of the Act; and no suitor, in view of Section 53 of the Act, would be entitled to come to the civil court to question that discretion and to compel the Court of Wards to exercise its discretion in a manner favourable to him where the discretion has initially been exercised against him.

14. In interpreting a Statute, one of (he cardinal principles is that the Legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication. In ail general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the Legislature would shirk fundamental principles, infringe rights, or depart fom the geneal system of law without expressing its intention with irresistable clearness. Only where the language of an Act is clear and explicit, the court must give effect to it, for in that case the words of the Statute speak the intention of the Legislature. A Statute cannot be extended to meet a case for which provision has clearly and undoubtedly not been made. It is therefore clear to us from an examination of the provisions of Sections 37 and 53 of the Court of Wards Act. that the Act docs not lay down that the adoption made in pursuance of the consent in writing of the Court of Wards shall not be challenged anywhere1 in a civil court. We may conceive of a case where, even alter the consent of the Court of Wards, an adoption might fail because o the non-performance of the ceremonies of giving and taking, so vital to to an adoption. Undeniably in such a case the adoption can be challenged in a civil court.

15. Certain decisions bearing upon Section 38 of the Court of Wards Act have been relied upon for the purpose of interpreting the scope of Section 37. It would not be our object to examine all these decisions, for in our opinion it would not serve any useful purpose to do so. Section 38 is radically different from Section 37 in its scope, Section 37 creates disabilities in wards. Section 38 confers powers on the Court of Wards as to property under its superintendence. If the powers so conferred by the Statute upon the Court of Wards are exercised within the limits of Section 38, it cannot legitimately be urged that those powers could not have been exercised, because the ward could not exercise them before the disability came to be attached to him by reason of the estate coming under the superintendence of the Court of Wards. Section 38, inter alia, provides that the Court of Wards may mortgage or sell the whole or any part of any property under its superintendence, and may give leases or farms of the whole or any part of such property for such terms as it thinks fit, and may mate such remissions of rent or other dues, and may generally pass such orders and discharge acts not inconsistent with the provisions of the Act or any other Act in force for the time being as it may judge to foe for the advantage of the ward, or for the benefit of the property. The construction which we place upon the provisions of Section 38 is that where it is established that the Court of Wards has done an act or made a transfer, after having directed its mind to the question as to whether the act is for the benefit of the property and the advantage of the disqualified proprietors and has decided that such an act or transfer is for the benefit of the property and the advantage of the disqualified proprietor, the ward is not in a position, on the disability having ceased, to challenge the validity of the act or of the transfer upon the ground that the act or the transfer was not to his' benefit or to the benefit of the property. That this will be the inevitable position, flows from a plain reading of Section 38 read with Section 53 of the Court of Wards Act. Section 38 therefore being radically different from Section 37 in its scope, it cannot be brought into action in order to interpret Section 37. From what we have already said, we are clearly of opinion that Section 37 of the Court of Wards Act creates a disability in the ward to adopt and where such disability is removed by the consent in writing of the Court of Wards in the exercise of its discretion under proviso (1) to Section 37, it is only the exercise of such discretion which shall not be questioned in any civil court in view of Section 53 of the Act. Section 53 does not enact that once a consent is given by the Court of Wards under Section 37(b), the civil courb is precluded from determining the question as to whether or not there was the express authority of the husband.

16-21. This brings us to the question as to whether Rai Pratap Chandra had given Rani Gomti Bibi any express authority to adopt a son to him. Closely connected with that question is the other question, namely, whether the disposition of property by the deeds of endowment had been made with or without the consent of Rai Pratap Chandra and are those dispositions otherwise valid. (After considering the evidence on this question, the judgment proceeded).

22. The circumstances which lead us to the conclusion that Rai Pratap Chandra gave no express permission to his wife to adopt or to make endowments may be briefly stated. As we have already said, the endowments were questioned by the Court of Wards and by Dwarka Nath the adopted son. Budhsen, the son of Gaya Prasad, the brother of Rani Gomti Bibi, contended on his behalf and on behalf of the deities that the two endowments dated the 25th September, 1902, and the 19th August, 1904, were made in pursuance of the will of the last male owner. We have already indicated above that no reliance was placed upon any express testamentary disposition before us, and what was tried to be proved by oral evidence was that eight or nine days before his death Rai Pratap Chandra made a vague expression of idea to his wife that she should make certain dedications without disclosing the extent of the property that should be dedicated. It should be remembered that within about eleven months of the death of Rai Pratap Chandra, Rani Gomti Bibi executed the deed Ex. 70 dated 24-11-1901 by way of a gift of 31 bighas of land, valued at Rs. 1400/-, situate in Mauza Chalaundah in Pargana Jhusi, in the district of Allahabad, in favour of Pandit Baldeo Prasad and Pandit Bhagwan Prasad, the sons of Pandit Behari, who was the Guru of the family. In this document it was stated that about more than thirty-four years ago during his life-time Rai Manik Chand, the father of Rai Pratap Chandra, made a Sankalp of 31 bighas of land in favour of his Guru Behari Prasad, but he died before he could execute the deed of Sankalp; that Rai Pratarj Chandra was born after the death of Rai Manik Chand and his entire estate came under the management of the Court of Wards; that the aforesaid Guru presented several applications to the Court of Wards in respect of the Sankalp aforesaid, but no heed was paid; that her husband was fully determined to execute and to register a deed or Sankalp in respect of 31 bighas of land and to put Baldeo Prasad and Bhagwan Prasad in proprietary possession and occupation, but before he could do so he died in January, 1901. Rai Pratap Chandra as the evidence discloses, survived for several years after his estate was released by the Court of Wards from its superintendence.

It is not alleged that during all those years he remained under a state of sickness so as to prevent him from making any Sankalpnama. The contents of this Sankalpanama Ex. 70 are therefore not supported by the circumstances, namely, that the Sankalp had originally been made by Rai Manik Chand but the deed could not be executed by him, nor could it be executed by his son Rai Pratap Chandra in spite of his anxiety to do so because of his death in January, 1901.

23. The next deed, which had been executed by Rani Gomti Bibi in favour of the same persons, namely, Baldeo Prasad and Bhagwan Prasad, was Ex. 30, dated the 17th of December, 1907 .making-over property valued at Rs. 7,532/9/6. In this document she stated that as it was incumbent upon her, according to Hindu Law, that she should do all the acts of charity for the benefit of the souls of her father-in-law and husband hi the next world so that their souls as well as her own soul may rest in peace in the next world, she made this endowment.

Although these documents were in point of time the earliest to the date of death of Rai Pratap Chandra neither of them made any expressions of the fact, if indeed such fact existed, that it was in furtherance of a testamentary disposition of Rai Pratap Chandra that the endowment was being made, or that a few days before his death Rai' Pratap Chandra had given expression to wish that the wife should adopt a son and should make the endowment. In the document Ex. 70 of 24-11-1901 what was stated was that Rai Pratap Chandra was fully determined to execute and to register a deed of Sankalp in respect of 31 bighas of land. The document does not bear out that a few days before his death Rai Pratap Chand in a gathering of respectable gentlemen had authorised Rani Gomti Bibi to adopt a son and to make endowment of specific property.

24. The validity of the deed Ex. 70 dated the 24th of November, 1901, and the deed Ex. 30 of 17-12-1907, is not now in question, because the plaintiffs abandoned their claim in respect of them at the trial.

25. The next document in point of time is the deed of endowment Ex. 20, dated the 25th of September, 1902, made by Rani Gomti Bibi in favour of the deities. Tin's covered a large amount of property, the value of which was put in the deed itself at Rs. 5,00,000/-. The preamble of the document says that Rai Manik Chand had a great inclination for charitable acts; that during his life-time a sum of Rs. 11,500/- used to be spent every year on sadabrat and other charitable purposes; that Rai Pratap Chandra his son, was also inclined towards charitable acts and during his time a sum of Rs. 10,000/- was spent per year on charitable purposes; that Raf Pratap Chandra intended to make a waqf of a major portion of his property for the purposes of sadabrat, Thakurji, Mahadeoji and others; that he 'often' used to express his intention in that respect to Rani Gomti Bibi, that Rai Pratap Chandra did noC live long enough to give a practical shape to his intention, and Rani Gomti Bibi was, therefore, making the bequest of the zamindari and other properties given in the document,

26. The different beneficiaries were given specific sums of money per year. Under the document, Gaya Prasad, the brother of Gomti Bibi, was appointed as Mutwalli and manager. He was to receive an allowance of Rs. 250/- per month and was to be provided with a carriage, a horse, a clerk, and two peons, the expenses of which and the salaries of whom were to be paid out of the endowed funds. This document, although said to have been drafted by Babu Kanhaiya Lal the legal adviser of the estate, in whose presence it was contended on behalf of the deities and the Mutwalli that express permission had been given by the deceased in a formal meeting about ten days before his death, makes no mention either of that formal meeting on of the express permission. What the document says, as we have already observed, is 'He often used to express his intention to me, the executant.''

These words arc couched in a general form, and they do not give any indication to the effect that on a 'formal' occasion ten or twelve days before his death Rai Pratap Chandra summoned witnesses and in their presence gave Rani Gomti Bibi an 'express' command to adopt or to make an endowment.

27. Two years later, namely, On the 19th of August, 1904 another deed of endowment Ex. A-5 was made by Rani Gomti Bibi, in respect of property valued at Rs. 1,76,000/- with a view to 'benefit the soul of her deceased husband and his ancestors in the next world.' The object for which this endowment was made was, as expressed in the deed, charity for general benefit, Chhattar, and other at fairs relating to the Hindu religion, ay specified below and mentioned below in List C. so that all this amount may be spent according to the details mentioned in List C and offered to the deities and the poor and needy persons, Sadhus Sanyasis and others may get food daily and it might be spent on them and for the Pathshala for purposes of its general benefit.'

Under this document Rani Gomti Bibi constituted herself as the Mutawalli for her life, and after her death the Mutwalliship was to go to Lala Gaya Prasad, her brother' who during his managership was to get an additional sum of Rs. 100/- per month an cash.

28. The document Ex. 20 was indicative of the fact that the lady made a waqf of a major portion of the property of Rai Pratap Chandra, We have already given the value of the properties contained in the deeds EX.s. 20 and A-5, dated 25-9-1902 and 19-8-1904 respectively, which alone are now the subject of controversy before us.

29. The whole of the property covered in the plaint to the present suit has been valued at Rs. 33, 00,000/- and odd, apart from the valuation of mesne profits put at Rs. 2,18,850/- We have upon the record the statement of Parmeshwar Dayal P.W. 4, who stated that the annual gross income out of the property left by Rai Pratap Chandra is about 21/2 lacs of rupees, and the annual income of the property given in the waqfs is about Rs. 1,35,000/-. We also have it in the evidence of Abdul Haq, D.W. 4, that the waqfs made by Rani Gomti Bibi bear a proportion of 101/2 annas out of the entire estate left by Rai Pratap Chandra.

30. There is therefore ample evidence on the record to show that the properties conveyed by the two deeds of waqf Ex. 20 dated 25-5-1902 and Ex. A-5 dated 19-8-1904 bore a proportion of about 101/2 annas to the entire estate left by Rai Pratap Chandra. How far a dedication to such a large extent was permissible is open to serious doubt. We may in this connection refer to the statetment of Abdul Hasan, a witness produced on behalf of defendants 1 and 2, who stated that these deeds were faired out by him from drafts prepared by Munshi Kanhaiya Lal, Babu Datti Lal and Bubu Mahesh Prasad, Vakils, under instructions from Rani Gomti Bibi after they were read over and explained to Rani Gomti Bibi; and that Rani Gomti Bibi was. an illiterate 'pardanashin lady, but she could only sign her name. We do not doubt that these documents were made by Rani Gomti Bibi of her own will, but that will was to a large extent dominated by her brother Gaya Prasad, who was to have dominion over the property during his life-time and who was to get a substantial sum of money a.s pay and allowances, and which was to go after Gaya Prasad to his successors.

31. Under the Hindu Law a widow may alienate the estate for certain religious or charitable purposes. These purposes may be divided into two classes:

(a) the performance of the obsequial ceremonies of the deceased owner and the payment of his debts (which are essential and obligatory); and

(b) the performance of religious ceremonies of persons other than the deceased owner and religious and charitable acts which are supposed to conduce to the spiritual welfare of the deceased owner (which are non-essential and non-obligatory),

32. With reference to the first class of acts, the powers ot the Hindu widow are wider than in respect of the acts which are simply pious. As regards acts of the first class, if the income of the estate, or the estate itself, is not sufficient to cover the expenses, she is entitled to sell the whole of it. As regards the second class, she can alienate a small portion only for the religious or pious purpose she may have in view, -- the expense that is allowable as regards this class of acts must be limited by a due regard to the entire bulk of the estate, and may even be totally disallowed where it is not warranted by the circumstances of the family.

33. In Sardar Singh v. Kunj Bihari Lal, ILR 44 All 503: (AIR 1922 PC 2611 their Lordships ot the Privy Council, after reviewing the cases on the subject, said:

'There can be no doubt upon a review of the Hindu Law, taken in conjunction with the decided cases, that the Hindu system recognises two sets of religious acts. One is in connection with the actual obsequies of the deceased, and the periodical performance of the obsequial rites prescribed in the Hindu Religious Law, which are considered as essential for the salvation of the soul of the deceased. The other relates to acts, which although not essential or obligatory, are still pious observances which conduce to the bliss of the deceased's soul. In the later cases this distinction rims clearly through the views of the learned Judges. The confusion which has arisen in this case arises from mixing up the indispensable or obligatory duty with a pious purpose, which although optional is spiritually beneficial to the deceased.

With reference to the first class of acts, the powers of the Hindu female who holds the property arc wider than in respect of the acts which are simply pious and if performed are meritorious so far as they conduce to the spiritual benefit of the deceased. In one case, if the income of the properly, or the property itself, is not sufficient to cover the expenses, she is entitled to sell the whole of it. In the other case she can alienate a small portion of the property for the pious or charitable purpose she may have in view. . . .

In their Lordships' opinion the Hindu Law recognises the validity of the dedication or alienation of a small fraction of the property by a Hindu female for the continuous benefit of the soul of the deceased owner.'

34. It was pointed out by the plaintiffs-respondents that the dedications in the present case were far in excess of what could properly be devoted to pious or charitable purposes and it was contended that they were not bona fide acts of the Rani, but only a device to confer benefits upon Gaya Prasad and his descendants. The dedicated property, as we have already said, constituted, roughly speaking, 101/2 annas of the entire property. We cannot justifiably call the dedications in the present case as of a small portion only and we cannot, therefore, uphold them.

35. It has been contended on behalf of the defendant-deities and the Mutawallis, relying upon an observation of the Oudh Chief Court in Prem Jagat Kuer v. Harihar Bakhsh Singh AIR 1946 Oudh 103 at p. 183, that the.se dedications must be upheld to an extent which the Court may consider reasonable. In that case a dedication was made to one particular idol, and the dedicated property constituted, roughly speaking, a little less than one-fourth of the entire estate. The Chief Court, 'taking all the circumstances of the case into consideration,' observed that; 'the dedication should be upheld to the extent of one-fourth part only.'

The learned Judges did not advance any reasoning in support of that view, nor did they rely upon any precedent or reported decision to support it. We arc of opinion that where a dedication or dedications offend against the rule of Hindu Law, it, or they, must be turned down as a whole and not partially, more especially upon the circumstances of the present case where the beneficiaries are a number of deities and the amounts of benefactions to them are varied, besides there having been the additional factor that the deeds provide that the Mutwalli and other servants of the waqf shall get a fixed salary and allowance per month. In dedications of this nature it cannot be said that the properties can be cut down, and so also the salaries and allowances, to an extent so that, the dedications may not offend against the Rules of Hindu Law. Nor can it be said in such circumstances that the scaling down would be based upon any reasonable or rational hypothesis. We are therefore unable to uphold the dedications.

36. Reliance was placed by the parties in support of their respective claims upon the statements made by the witnesses on previous occasions or upon what had been expressed by Rani Gomti Bibi in the documents made or in the written statement in the former suit, and also upon the written statement of Gaya Prasad made in that suit, and further upon the statement of Gaya Prasad and upon certain other papers with which we will presently deal. The use to which such statements may be brought is regulated by the provisions of the Indian Evidence Act. To begin with we may deal with the statement Ex. B-4 made by Madho Prasad D. W. 2 on the 18th of December, 1928, before the Collector when the second inquiry before the Collector was made, and the statement Ex. B-3 of Ram Kishan D. W. 1 in that inquiry on the same date. These statements were relied upon in order to corroborate the testimony of the witnesses in the present suit. Section 157 of the Evidence, Act lays down as follows:

'In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.'

37. This section is based On the principle that if there is consistency between the previous statement and present statement of a witness, it may be considered a ground for believing him. The corroborative value of such previous statement depends upon the fulfilment of the conditions laid down in Section 157 and it is of a varying character dependent upon the circumstances of each case. The section requires that the former statement must relate to the same fact, that the statement was made at or about the time when the fact took place, or before any authority legally competent to investigate the fact. The statements Ex. B3 and Ex. B4 were made in the year 1928 before the Collector with respect to facts said to have taken place in the year 1901. The Collector was not legally competent to investigate whether or not authority had been expressly given by Rai Pratap Chandra to his wife to adopt a son to him. Defence witnesses Ram Kishan and Madho Prasad were not produced or examined before the Collector in the inquiry that was held for the first time in 1923. Apart, therefore, from the fact that both these witnesses by reason of their relationship with Gaya Prasad are interested in setting up the theory that such an express authority had been given by Rai Pratap Chandra to his wife and that he had further given her some sort of authority to make the endowments so that if the endowments are upheld the managership or the Mutwalliship of the endowed property would continue to vest in the descendants of Gaya Prasad their previous statements made on the 18th of December, 1928, before the Collector could not be taken as corroborative as those statements did not fulfil the conditions of Section 157 of the Indian Evidence Act.

38. We have already referred to the provisions of the deed of endowment Ex. 20 dated 25-9-1902, and the deed of endowment Ex. A-5 dated the 19th of August, 1904 with which we are concerned, and also with the other two deeds of endowment Ex. 70 of 24-11-1901 and Ex. 30 of 17-12-1907 with respect to which the claim has been given up, and we do not propose covering the same ground. We may next refer to the statement Ex. B-72 of Gaya Prasad made by him in the court of the Subordinate Judge at Allahabad in the earlier Suit No. 245 of 1925 instituted by Parmeshwar Dayal against Gomti Bibi, Gaya Prasad and others. This statement was used in evidence in the present suit after the death of Gaya Prasad, obviously under the provisions of Sections 9, 11 and 32 of the Evidence Act. In the statement Ex. B-72, Gaya Prasad appears to have said that about a week before coming to Allahabad Rai Pratap Chandra gave instructions to his wife about adoption and disposal of property, and that for about a year before that he had been frequently giving instructions to his wife to adopt a promising boy and to make a Dharmshala, Pathashala, wells, tanks and temples. In that statement he further appears to have said that Gava Prasad came to Allahabad two months before his death, If that statement of Gaya Prasad were to be relied upon, the formal permission was given by Rai Pratap Chandra to his wife seven weeks before his death. That statement was therefore inconsistent with the case which the defendants wished to propound in the present suit in which their contention was that this formal permission was given in the presence of witnesses and in the presence of Gaya Prasad himself a few days before the death of Rai Pratap Chandra. Again in the statement Ex. B-72, Gaya Prasad appears to have said that Rai Pratap Chandra while expressing his wishes to his wife enjoined upon Gaya Prasad to see that his wishes were carried out and that he should, after his death, keep on reminding his widow about his wishes. We may at this stage mention that when Rani Gomti Bibi executed the deed of adoption Ex. P-79 on the 6th of November, 1924, adopting Bindeshri Prasad, expressing that she had taken Bindeshri Prasad in adoption on the 21st of February, 1923, she further expressed that Rai Pratap Chandra ''suddenly fell ill and he lost all hopes of his life,' and that he expressed his desire in the presence of the Vakils, employees and certain persons' that Rani Gomti Bibi should have temples and Thakurdwaras built and should worship the same and have the worship done with a view to benefit the soul of the husband. In that document she further expressed that the deceased had said that if Rani Gomti Bibi failed to manage the property personally, she might, whenever she liked, adopt a boy from the family. If what was expressed by Rani Gomti Bibi in the deed of adoption Ex. P-79 was true, the statement given by Gaya Prasad, which is to be found in Ex. B-72, namely, that the deceased had enjoined upon him that he should keep Rani Gomti Bibi reminding of his wishes so that they may be carried out, becomes improbable to the extreme. In the deed of adoption the lady had said, as we have already noted, that the permission that had been given by the husband was conditioned upon 'If I, the executant, (namely, Rani Gomti Bibi), fail to manage personally, I might, whenever I like, adopt a boy from the family.'

This expression, to our mind, found place in the deed Ex. P-79 in order to afford an explanation of the circumstance as to why the adoption of Bindeshri Prasad had so long been delayed. It was, in a sense, contrary to the express injunctions of Rai Pratap Chandra, if those injunctions had at all been given and if Gaya Prasad's statement Ex. B-72 on that point is to be relied upon according to which the deceased was keen upon the adoption taking place as quickly as possible. The statement of Gaya Prasad referred to above read along with the deeds Exs. 20 and A-5 is totally inconsistent with the formal permission having been given.

39. The same criticism may be made in regard to the written statement Ex. 31 of Gaya Prasad made in Suit No. 245 of 1925 aforesaid. In that written statement Gaya Prasad stated about the endowments, and also stated that on 21-2-1923, Rani Gomti Bibi lawfully adopted Bindeshri Prasad 'according to the directions and will of her husband;' but in that written statement he did not allege that under those directions and will of her husband the two things, namely, the permission to adopt and the permission to endow were simultaneous. In her written statement Ex. 27 in the same case Rani Gomti Bibi stated as under:

'20. Rai Pratap Chandra Bahadur, husband of the contesting defendant, had no issue. He was much inclined towards religious and charitable deeds. During his life-time it was his heart-felt desire that he should make a waqf of a considerable portion of his property for religious and charitable purposes, so that his soul may have peace and be benefited after death. But this transitory world did not let Rai Bahadur fulfil his desire. Alter the death of Rai Bahadur it became necessary and obligatory for the contesting defendant to fulfil his wishes and carry out his instructions.

21. Rai Bahadur Pratap Chandra died after an illness of about six months. During his illness he often expressed his heart-felt desire to the contesting defendant and instructed her to get temples of Shri Dwarka Dhish Ji, Shri Ram Janki, and Shri Jagannath Swami constructed in the residential Kothi, and to instal the idols of the said deities therein, to pass the rest of her life in worship of, and devotion to the Almighty; to get tanks and wells built at proper places for public good, to give Sadabart to the poor and destitutes belonging to the Hindu community, and to adopt a promising boy from amongst the members of her family.'

40. Paras 20 and 21 of that written statement quoted above made no mention that On any formal occasion, in the presence of witnesses, permission to adopt and permission to make endowment had been given. The words used in para 20 were 'During his life-time it was his heart-felt desire that he should make a waqf of a considerable portion of his property;' and in para 21 the words used were:

''During his illness he often expressed his heartfelt desire ... .to adopt a promising boy.'

41. Section 11 of the Evidence Act lays down that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact, if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable Or improbable. Section 11 is controlled by Section 32 where the evidence consists of the statements of persons who are dead or cannot be found. But this rule is subject to certain exceptions. The test whether the statement of a person who is dead or cannot be found is relevant under that section, (presuming that it is in other respects within the intention of the section), although it would not be admissible under Section 32 is this. It is admissible under Section 11 when it is altogether immaterial whether what that dead man said was true or false, but highly material that he did say it. In these circumstances no amount of cross-examination could after the fact, if it be a fact, that he did say the thing, and if nothing more is needed to bring the thing said under Section 11, then the case is outside Section 32. There is a difference between the existence of fact and a statement as to its existence. Section 11 makes admissible the existence of facts and not statements as to such existence, unless the fact of making that statement is in itself a matter in. issue. See Mt, Naima Khatun v. Basant Singh : AIR1934All406 . We may also refer in this connection to a decision of the Calcutta High Court in Ambika Charan v. Kumud Mohan : AIR1928Cal893 , and to a decision of the Bombay High Court in R. D. Sethna v. Mirza Mohomed Shirazi, 9 Bom LR 1047.

42. We may next refer to the written statement Ex. B-76 of Chhedi Lal and Bhagwan Prasad who were defendants Nos. 3 and 4 in Suit No, 245 of 1925 of the court of the Subordinate Judge of Allahabad. This written statement was filed by them in the aforesaid suit. Bhagwan Prasad was the father of Ajodhya Prasad P. W. 2, and was the Guru of the family. The deeds of endowment Ex. 70 dated 24-1.1-1901 and Ex. 30 dated 17-12-1907 were made in favour of Bhagwan Prasad and his brother Baldeo Prasad. In paragraph 20 of that written statement Bhagwan Prasad had said:

'20. In accordance with the discretion of her husband, defendant No. 1 (namely, Rani Gomti Bibi) took defendant No. 6 (namely, Bindeshri Prasad) into adoption after performing all the ceremonies according to Hindu Law .... Defendant No. 1 had no need to obtain the permission of the Court of Wards, Defendant No. 6 has been taken into adoption according to law.'

43. What was said by Bhagwan Prasad in that written statement may again be taken into consideration under Section 11 of Evidence Act. It would be admissible under Section 11 when it is altogether immaterial whether what was said was true or false, but highly material that it was said.

44. Some criticism was made by the learned Judge of the court below upon the report that was made by the Collector pursuant to the inquiry that was made for the second time in 1923 at the instance of the Board of Revenue in order to determine whether or not Rai Pratap Chandra had given Rani Gomti Bibi the power to adopt a son. We do not think that it was at all necessary to go into that matter, because, as we have already paid, what the Court of Wards was entitled to do under Section 37 of the Court of Wards Act of 1912 was to give its consent in writing to adopt or to withhold its consent, and it was only the exercise of that discretion conferred upon the Court of Wards by Section 37 which could not have been questioned in any civil court; but the civil court was not precluded at all from going into the question when the adoption was assailed in a proper suit as to whether or not the widow had the authority to adopt. What therefore led the Collector to come to a conclusion in the year 1928 upon the inquiry made by him that the widow had been given the power to adopt, was not relevant to the suit, and it was not for the civil court to find as to whether the report of the Collector was justified or not and whether the report was based upon any reliable evidence or not.

45. From what we have stated above we have come to the conclusion that Rai Pratap Chandra gave no express permission to his wife to make an adoption or to make endowments; that the adoption of Dwarka Nath is invalid and that the endowments evidenced by the deed Ex. 20 dated 25-9-1902 and the deed Ex. A-5 dated l9-8-l904 cannot justifiably be called as dedications of a small portion of the property only, and they cannot, therefore, be upheld.

46. The plaintiff set out a genealogical table which was in Sch. G annexed to the plaint. With reference to that pedigree it was stated in para 15 of the plaint that plaintiff No. 1, namely, Parmeshwar Dayal was the nearest reversionaiy heir of Rai Pratap Chandra at the time of the death of Rani Gomti Bibi, that defendants Nos. 11 to 13, namely Ram Lakhan, Ram Lala and Murlidhar are illegitimate step-brothers of Parmeshwar Dayal and they have been made pro forma defendants to avoid future controversy. The defendant joined issue with the plaintiffs on those points. The court below by Issues Nos. 1 and 2 embarked upon the determination of the questions:

(1) Whether the plaintiff No. 1 is the nearest reversioner of Rai Pratap Chandra deceased, the last male holder of the estate? and

(2) Whether the defendants 11 to 13 are also reversioners of Rai Pratap Chandra deceased of equal status with the Plaintiff No. 1?

The Court below found that the plaintiff and defendants 11 to 13 are the nearest reversioners of Rai Pratap Chand of equal status. These findings have not been assailed before us by any party during the course of arguments. It was upon these findings that the court below granted a decree in the suit in favour of the plaintiffs and defendants 11 to 13.

47. In para 23 of their written statement Budh Sen for self and as Mutwalli of the endowed properties stated that according to the custom prevailing in the family of Rai Pratap Chandra. a widow who succeeds to her husband has full power of disposal over the assets inherited by her and according to that custom if was open to Gomti Bibi to make alienations which would enure beyond her life-time. The court below found that no evidence was given over this alleged custom and the custom was, therefore, not at all proved. This finding was also not challenged before us.

48. No argument was addressed to us gn the findings of the court below regarding limitation, res judicata and estoppel.

49. As regards mesne profits, there can be no doubt that the basis adopted by the court below to determine mesne profits was fundamentally wrong. Rani Gomti Bibi died on January 5, 1943. The cause of action for the suit arose on that date. The suit was filed in 1945. In Schedule H annexed to the plaint it was stated that the mesne profits of properties covered by the deed of waqf dated 29-9-1902 for the period beginning January 1943 up to May, 1945, calculated at the rate of 32,500/- a year, came to Rs. 81,250/- that the mesne profits in respect of properties covered by the deed of waqf dated 19-8-1904 for the same period, calculated at Rs. 19,700/- a year, came to RS. 49,600/- and that the mesne profits in respect of properties under the management of the Court of Wards on behalf of Dwarka Prasad for the same period reckoned at Rs. 35,400/- a year, came to Rs. 88,000/-. The total claim for mesne profits was in the sum of Rs. 2, 18, 850/-. The court below in dealing with Issue No. 16 relating to the mesne profits observed:--

There is no dispute on the point. In the Schedule 'H' the mesne profits accruing from each portion of the estate are entered. Parmeshwar Dayal has stated that the account is correct. The mesne profits about the endowed property are taken from the deeds of endowments themselves. It is quite clear that income out of the property must have increased during this interval, but the plaintiffs are content with only that amount. The reason is plain, the source of the income is the property in suit. Nothing can be realised from Budhsen. The Court of Wards represents only the estate, and the estate would alone be liable, but the estate is coming to the plaintiffs.

So I hold that the amount due from the defendants l(a), l(b) and 2(a), 2(b) is Rs. 1,30,850/- till the date of the suit, and they would be liable to pay Rs. 52,200/- per year for pending and future period till the date of possession. The defendant no. 9 would be liable to pay Rs. 88,000/- as mesne profits till the date of the suit, and at the rate of Rs. 35,400/- per year for pending and the future period till the date of possession.

50. A reference to the plaint would show that defendant no. 1 is Thakur Ji through Budhsen, and defendant no. l(b) is (i) Sri Maharaj Jagannath Ji situate at Jagannathi Ji, (ii) Sri Maharaj Jagannath Ji situate at Muthiganj, Allahabad (iii) Sri Maharaj Bail Nathi Ji situate at Baij Math, (iv) Sri Maharaj Badri Narain situate at Badri Nath, (v) Sri Maharaj Dwarka Dhish Ji situate at the temple at Phulpur, (vi) Sri Sangam Beni Madho Ji situate at Prayag Raj, Allahabad, and all these deities have been sued through Budhsen son of Gaya Prasad; and defendant no. 2(a) is Budhsen son of Gaya Prasad the Mutwalli and manager of property Pathshala Muthiganj, Allahabad; and defendant No. 2(b) is Budhsen son of Caya Prasad Mutwalli and Manager of the endowment of (i) Sri Madho Ji situate at Setu Bandh Rameshwar, (ii) Sri Dauji situate at Mathura, (iii) Sri Kanta Nath Swami Ji situate at Chitrakut, (iv) Sri Mahadeo Ji Bishwanath Ji situate at Banaras, (v) Sri Bind Basni Bhagwati Ji situate at Binddhyachal. (vi) Sri Ram Lakshman Janki Ji situate at temple Phulpur and Ajodhya, and expenses of Pitra Paksh and Shradh.

51. The mesne profits from January 1943 to May, 1945 have been worked out by the court below upon the basis of profits stated in the plaint which, in turn, had its basis on the profits stated in the deeds of endowment of the years 1902 and 1904. The basis taken was erroneous, furthermore, file presumption drawn by the court below that the income of the property must have increased during the interval was not quite correct. Again, the beneficiaries were to get benefits in fixed sums, and a conjoint decree against them was not justified. The same may be said about the mesne profits awarded against defendant no. 9, namely, the Court of Wards. The decree for mesne profits must therefore be vacated and the determination of the amount and also the determination of the question as to which defendant would be liable for what sum should be left for determination in the Execution Department.

52. Upon the findings reached by the court below that plaintiff Panneshwar Dayal along with defendants 11 to 13 were the nearest reversioners of Rai Pratap Chandra when the succession opened in 1943 upon the death of Rani Gomti Bibi, the court below was right in granting a decree for possession in favour of the plaintiffs with a direction that they shall hold the decree for the benefit of defendants 11, to 13 as well; which, in other words, amounts to decreeing the suit in favour of the plaintiffs and defendants 11 to 13. 'When property is held in co-parcenery or in co-ownership, it Is not necessary for all the co-parceners or co-owners to join in the suit as plaintiffs against trespassers or against persons who hold the property without any legal title. In such a suit the other co-parceners or co-owners may be arrayed as pro forma defendants. Again, if the title of such co-parceners or co-owners who are arrayed on the side of the defendants is disputed by the plaintiffs and it is found by ihe court that such persons have a title to the property equal to and joint with the plaintiffs, a decree may be given for the benefit of all the co-parceners or co-owners. In such an event one of such defendants who is a co-parcener or co-owner cannot be entitled to any separate costs because the decree against the trespassers is for his benefit as well.

53. No other point was argued before us in these appeals.

54. For reasons stated above First Appeal No. 195 of 3947 by Murlidhar defendant no. 13 for costs of the suit against the plaintiffs is dismissed and we make no order as to costs of that appeal in this Court. First Appeal No. 45 of 1947 by Thakurji and others and First Appeal No. 76 of 1947 by defendant no. 9, namely, the Collector in charge of the estate of Dwarka Nath and by Dwarka Nath defendant are allowed in part, namely, to the extent indicated below. The decree lor possession granted by the lower court is affirmed but the decree for mesne profits is vacated and it is directed that the mesne profits shall be determined in the Execution Department in the light of the observations made above. As these defendants appellants have substantially failed they shall bear their own costs in this Court and shall pay the plaintiffs their three-fourth costs.


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