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Dharam Prakash Vs. Mt. Kalawati Devi - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtAllahabad
Decided On
Reported inAIR1928All459; 110Ind.Cas.665
AppellantDharam Prakash
RespondentMt. Kalawati Devi
Excerpt:
- - kalawati the absolute owner of his entire property and gave her a right to sell, mortgage, donate or otherwise transfer the property in any way she liked. kalawati should like to adopt a son, she shall not adopt any son of the relations of her family or of that of mt. 10. the subordinate judge held that the factum of adoption was proved by overwhelming evidence, that adoption was voluntary and without any outside influence, that the plaintiff's claim was not barred by limitation, that the plaintiff was not estopped from challenging the adoption, that the adoption was not bad in law on the ground that dharam prakash was the only son of his father but that the plaintiff was entitled to succeed on the short ground that on a true construction of the last clause of the will, the.....1. this is an appeal by one dharam prakash, minor under the guardianship of his natural mother mt. chandrawati, against the judgment of the subordinate judge of meerut, dated 21st may 1925, decreeing the claim of the plaintiff srimati kalawati devi for a declaration that dharam prakash, the defendant, was not the adopted son of the plaintiff and that his adoption was invalid.2. lala ram saran das owned considerable property, moveable and immovable. he died in december 1896 leaving two widows, mt. basanti and mt. kalawati devi, and a mother, mt. bhawan kuer. shortly before his death he executed a will on 6th december 1896 under which he made mt. kalawati the absolute owner of his entire property and gave her a right to sell, mortgage, donate or otherwise transfer the property in any way.....
Judgment:

1. This is an appeal by one Dharam Prakash, minor under the guardianship of his natural mother Mt. Chandrawati, against the judgment of the Subordinate Judge of Meerut, dated 21st May 1925, decreeing the claim of the plaintiff Srimati Kalawati Devi for a declaration that Dharam Prakash, the defendant, was not the adopted son of the plaintiff and that his adoption was invalid.

2. Lala Ram Saran Das owned considerable property, moveable and immovable. He died in December 1896 leaving two widows, Mt. Basanti and Mt. Kalawati Devi, and a mother, Mt. Bhawan Kuer. Shortly before his death he executed a will on 6th December 1896 under which he made Mt. Kalawati the absolute owner of his entire property and gave her a right to sell, mortgage, donate or otherwise transfer the property in any way she liked. He also authorized Mt. Kalawati 'to adopt, when she wished, any boy' of her choice, and if the adopted son died, he empowered her to adopt a second and a third boy in succession. He also fixed certain allowances for his mother Mt. Bhawan Kuer and his senior wife Mt. Basanti and made provision for their residence in a house known as 'Mahal Sarai.'

3. On 10th December 1896, he added an important clause to the will of which the following is the official translation:

Further it is stipulated that if Mt. Kalawati should like to adopt a son, she shall not adopt any son of the relations of her family or of that of Mt. Basanti or Bhawan Kunwar. If my brother Jiwan should give his son into adoption, she should adopt him; otherwise she should adopt some other boy, and she shall not have a power to make a gift. In case of necessity Mt. Kalawati shall have power to sell or mortgage a portion of the property.

4. The original of which the above is the translation runs as follows:

Mukarrar shart yeh hai ki agar Kalawati godlena pasandh kare to apne ya Mt. Basanti ya Bhawan Kunwar ke khandani rishtedaron men se kisi pisar ko god na legi. Agar Jiwan mera bhai apna larka god de to us ko warna dusre larke ko god le, aur hiba na kar sakaegi. Ba shart zarurat Mt. Kalawati juzwi jaidad bai wa rehan kar sakaegi.

5. Jiwan Ram had an only son of the name of Lalman. In the beginning of 1912 Mt. Kalawati Devi requested Jiwan Ram to give Lalman in adoption to her, but he refused and signified his refusal in a registered instrument dated 9th January 1912.

6. Kalawati had a brother of the name of Brij Ballabh Saran whose daughter a Mt. Chandrawati was married to one Raja Ram of Najibabad. The defendant appellant is the only issue of this marriage.

7. On 8th August 1918, Mt. Kalawati executed a deed of adoption, whereby she declared in unequivocal terms that she had taken Dharam Prakash in adoption to herself and her husband under his express authority.

8. The present action was commenced by Mt. Kalawati on 28th May 1924. In the plaint, she studiously avoids committing herself to the statement that, as a matter of fact, she had taken Dharam Prakash in adoption. She impugns the deed of adoption on five grounds:

(1) She complains that the document was procured from her by undue influence.

(2) The adoption itself was invalid, as Dharam Prakash belonged to a class or category of persons adoption from whom was expressly prohibited by the testator in the last clause of the will.

(3) Mt. Chandrawati had no authority of her husband to give her son in adoption.

(4) The adoption was not acted upon; no mutation having been effected in favour of the defendant, who continued to reside with his mother Chandrawati at Najibabad and had never lived with the plaintiff.

(5) The adoption of an only son was opposed to Hindu law.

9. In defense, all these grounds were traversed by the defendant, who further pleaded limitation and estoppel.

10. The Subordinate Judge held that the factum of adoption was proved by overwhelming evidence, that adoption was voluntary and without any outside influence, that the plaintiff's claim was not barred by limitation, that the plaintiff was not estopped from challenging the adoption, that the adoption was not bad in law on the ground that Dharam Prakash was the only son of his father but that the plaintiff was entitled to succeed on the short ground that on a true construction of the last clause of the will, the defendant was a khandani rishtedar of the father of Mt. Kalawati and his adoption therefore contravened the express mandate of her husband.

11. The Subordinate Judge decreed the plaintiff's claim.

12. The defendant in his appeal urges three points before this Court: (1) The defendant, as son of Raja Ram belonged to a very different family from that of Mt. Kalawati's paternal relations and his adoption was not invalid as being in contravention of the will of Ram Saran Das, dated 10th December 1896; (2) the plaintiff's claim is time barred; and (3) the plaintiff is estopped from repudiating the adoption or having the deed of adoption set aside.

13. As has already been pointed out, the Subordinate Judge held that Dharam Prakash was a khandani rishtedar of Mt. Kalawati's father. This conclusion was based partly upon certain judicial decisions of this Court. In Radha Prasad v. Mt. Nanhwa [1910] 5 I.C. 669, Karamat Husain, J. held that in the Urdu language rishta meant relation either by blood or by marriage. In Khuman Singh v. Hardei [1889] 11 All. 41, it was held that a vendor's father's brother's widow was a reshtedar qaribi. In neither of these two cases the words khandani rishtedar occurred in the wajib-ul-arz. The question for determination in those cases was whether the expression rishtedar qaribi was wide enough, having regard to the entire context of the wajib-ul-arz, to include certain persons, who were claiming a preferential right to pre-emption.

14. It is not permissible to interpret one document by another, the terms of which are neither identical nor even parallel. It is extremely dangerous to pick out stray phrases from a document, which has been judicially interpreted and to extend the scope of the decision to a document of a different kind, couched in different terms, without any regard to the context, to the setting or to the surrounding circumstances.

15. The two rulings relied on by the Subordinate Judge were constructions of particular words in the wajib-ul-arz and the decisions proceeded upon the interpretation of the documents then before the Court, regard being paid to the relation of the particular words to the entire context. The Subordinate Judge also refers to the Fallon's English-Hindustani Dictionary and to Wharton's Legal Lexicon and finds that 'khandan' means 'family', that 'family' means 'lineage,' and 'lineage' means 'race,' family, progeny, 'ascendant or descendant.' From these he concludes that 'rishtedaran-i-khandani', means 'relations by blood, ascendant or descendant, whether in the male or female line of descent.'

16. The learned Judge further argues that if the testator had intended to place the ban upon the mala agnates of the family of the father of the three ladies and no further, he would have used the word 'ek jaddi' and not 'reshtedaran-i-khandan' in the will.

17. In construing the last clause of the will so as to gather the intention of the testator, one has to place himself in the testator's arm-chair. On 6th December 1896 Ram Saran Das had in the very first paragraph of his will provided that after his death Mt. Kalawati was to have an absolute estate with plenary powers of transfer. In para. 4 he arms Mt. Kalawati with the authority

to adopt when she wishes after my death any boy whom she likes.

It ought to be remembered that a power to adopt is in some ways analogous to a power of appointment and must be distinguished from trust. As has been observed by Wilmot, C.J.:

Power are never imperative; they leave the act to be done at the will of the party to whom they are given and are not obligatory upon the conscience of the party interested.

18. It is a matter of some importance that the last clause in the will was added on 10th December 1896 and by this addition the original will was modified in three important particulars: (1) It restricted the field of Kalawati's choice by prohibiting the adoption of any son belonging to the family of the father of Kalawati or the other two ladies namely Mt. Basanti or Mt. Bhawan Kunwar; (2) it was directed that in making the choice preference must be given to the son of Jiwan who was the own brother of the testator. This direction was imperative and (3) the estate of Mt. Kalawati was cut down to a limited estate. She was to have no power to make a, gift. She was authorized to sell or mortgage only a portion of the property in case of necessity.

19. It is not difficult to imagine that the terms of the will dated 6th December 1898 had reached the ears of Mt. Bhawan Kunwar and Mt. Basanti, the senior wife. In Indian families it is a very rare occurrence that wills are kept under the seal of secrecy. It is not difficult to imagine that the senior wife and the mother felt very keenly not only the inequality of the legacies, but they felt aggrieved by the circumstance that Mt. Kalawati was made the absolute owner of the property with power of transfer and with a power of adoption unfettered by any limitations or restrictions whatsoever. It was felt that if the will, dated 6th December 1896, were allowed to stand there was nothing to prevent Mt. Kalawati from making a gift of the entire property to any member of her father's family. It was also fell that the same result could be reached by Mt. Kalawati taking a boy of her father's family in adoption. To avoid any jealousy or bitterness, festering in the minds of these three ladies after the death of Ram Saran Das and to prevent the possibility of his property vesting in the paternal relations of the junior wife, the last clause of the will was deliberately added. To hold the balance even between Kalawati and the two ladies, dictated perhaps by a rude sense of justice, he also provided that no bay belonging to the family of the father of the other two ladies could be taken in adoption.

20. By the words 'khandani reshtedar' the testator intended to mean the agnatic relations of the father. There is not much of divergence between the connotations of these words and of the words 'ek jaddi.'

21. The testator could possibly have no object in prescribing that not only the boys of the paternal house of these ladies should not be adopted, but that he should travel further a field by prescribing that boys of the family, connected with the paternal house of these ladies by blood, marriage or adoption should be placed in the same class or category as the former.

22. In the case of a Hindu, his khandan consists of his lineal ascendants and descendants and his collaterals in the male line. Sisters and daughters after their marriage are transplanted from the family. They acquired the lineage or gotra of their husbands. The family tie is almost completely cut asunder, excepting within very narrow limits for the purpose of marriage or adoption. In Mahomedan families, where sisters and daughters inherit property side by side with the males and where females acquire an absolute dominion in the inherited property, the word 'khandan' may have a more extensive meaning.

23. In the present case, it would be most unreasonable to expect that Ram Saran Das should have intended to exclude the adoption of a boy belonging to a family, which was connected with the family of the paternal relations of the three ladies by marriage. The wider the area, the greater is the chance of a good and proper selection. This rule of common-sense is very well understood by Hindus and is very fully appreciated by the Vaish class to which the testator belonged. By widening the area of exclusion, Ram Saran Das would be acting most irrationally, be doing no good to himself and would be placing barriers and difficulties in the way of Mt. Kalawati in the matter of making a proper selection. The mischief aimed at was that the family of the father of the three ladies should not be enriched at the expense of the testator and this consummation was amply secured by placing restrictions within the narrow limits indicated above.

24. If the construction contended for by respondent be accepted to its fullest extent and with all its implications, this would lead to very startling results. This would prohibit the adoption even of boys belonging to the family of the own brothers of the testator. The husband of Bhawan Kunwar was related to Bhawan Kanwar's father by marriage. Her husband's descendants or their progeny would, under the circumstances, come equally under the ban. A power to adopt where it happens to be a special as distinguished from a general power, has to be strictly construed and no limitation should be imported into the document, independently of what would flow from the plain etymological meaning of the document itself; where the words are clear and unambiguous, full effect has to be given to those words, without any regard to extraneous circumstances such as the conduct of the parties or the particular surroundings, which might have influenced the intention of the testator. 'Khandani rishtedaran men se kisi pizar ko' has to be construed with reference to the context and etymologically it clearly means any son of the agnatic relations of the persons indicated by name in the document. Assuming that the expression is equivocal and might include a son of a family connected by marriage with the family of the father of the ladies, in view of the circumstances set out above, it is not possible to hold that this could have been the sense in which the testator used those words.

25. The name of Kalawati's father was Sahu Nand Lal who had a numerous family at Moradabad. One of his sons was Brij Ballabh Saran. His daughter, Chandrawati, on her marriage to Raja Ram ceased to belong to the family or khandan of her own father. No Hindu testator would be expected to treat Dharam Prakash, the son of Chandrawati by Raja Ram, as a khandani rishtedar of Sahu Nand Lal. The adoption of Dharam Prakash, therefore, was clearly outside the prohibition imposed by the testator and was therefore valid in law.

26. It is next argued that the plaintiff's claim is time barred. The contention is that Mt. Kalawati, having duly executed and registered a deed of adoption on 8th August 1918, was not competent to maintain the declaratory suit without having the deed of adoption set aside. The deed of adoption not having been set aside within three years from the date, when the facts entitling Mt. Kalawati to have the instrument cancelled or set aside, became known to her, under Article 91, Lim. Act, the present suit was barred on 28th May 1921, the date when the action was commenced.

27. The specific article applicable to a suit to obtain a declaration that an adoption was invalid is Article 118 which prescribes six years from the date when the alleged adoption became known to the plaintiff. The suit having bean instituted within six years of the date of the adoption, it is clearly within time and is clearly within the scope of Article 118. The main relief claimed in the suit is a declaration about the invalidity or illegality of the adoption. The adoption deed by itself does not confer any status upon the defendant as an adopted son. It only recites a fact and is evidence of such a fact having already taken place. A relief for the avoidance of the deed of adoption was therefore neither necessary nor obligatory. It was merely ancillary to the main relief claimed. There is no force in the plea of limitation, which is accordingly rejected.

28. It is next pleaded that the plaintiff is estopped from challenging the adoption of Dharam Prakash.

29. Section 115, Evidence Act, which formulates the law relating to estoppel runs as follows:

Where one person has by his declaration, act or omission, caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.

30. It is immaterial for the purpose of this suit, whether this section is treated as a rule of evidence or a rule of equity. There is really no difference in substance between the two positions and the same legal result will flow from either.

31. A rule of estoppel is purely personal against the person estopped and cannot create any substantive right in rem except against the person estopped or his personal representative. By the operation of this rule, no status arises in favour of the defendant as an adopted son for all purposes under the Hindu law. In order to constitute estoppel, the following four conditions must be fulfilled:

(1) There must be a representation of the existence of a fact to another person; (2) the latter should believe in this representation; (3) he should act on this belief; and (4) by his so acting his position should be materially altered.

32. No estoppel can ensue upon a representation, not of a fact, but of a mere opinion or of a point of law. If therefore a person alters his position to his detriment, by acting on the representation of a mere question of opinion or a matter of law which would be equally accessible to both the parties, no estoppel could arise. But where there has been a representation as to the existence of a fact to a certain parson and the latter believes it and acts upon it and his position is altered, so that he cannot be put back to his original position at all, or, at any rate, without great loss and inconvenience, estoppel will undoubtedly ensue.

33. Mt. Kalawati, as the favourite wife of Ram Saran Das, was in a position to know his real intentions, a part from a recourse to the terms of the will.

34. The circumstances under which the last paragraph of the will was added can leave no room for doubt that the addition was made as the result of a debate in the family conclave, and the real object of the addition so made was fully known to all the members of the family concerned.

35. Mt. Kalawati appears to be a particularly cautious lady as is evidenced by the fact that she obtained from her brother-in-law Jiwan a formal document signifying his refusal to give his son in adoption. This goes to show that in the matter of the choice of a boy, she was not prepared to take any risks.

36. Exhibit B purports to be a letter sent by the plaintiff to Mt. Chaudrawati. This letter bears no date. This letter may be construed as containing an implied representation that the defendant was a boy of the class whose adoption was approved and not prohibited by her husband. The letter is not explicit, but the above conclusion may be implied from the following texts:

Lalli I intend to adopt a boy. As soon as you receive this letter, you should consult your father-in-law about my intention to adopt Dharm Prakash. Ascertain the matter and write to me at once.

37. This however is a minor point and need not be pursued any further. The next letter also bearing no date is Ex. C addressed by the plaintiff to Mt. Chandrawati. The material portion of the letter may be quoted:

I request you most respectfully to give Dharam Prakash in adoption to me. As soon as you receive this letter, please start for Najibabad with your brother Brij Lal and get Dharam Prakash for me from Govind Prasad (sic).... I have fully shown the papers to the pleaders and made thorough enquiries from them. The pleaders have advised me that I can gladly adopt my naphew's son. No one here will dispute with Dharam Prakash. Please go and fetch him soon; please do not delay it. Do this for me out of the old love.

38. The above letter is a clear representation that under the terms of her husband's will Mt. Kalawati was competent to adopt Dharam Prakash and that she had fortified her position in making the representation to Chandrawati by legal opinion sought and obtained.

39. It appears from the statement of one Basdeo Mal, who was the own uncle of Dharam Prakash, that a similar representation was made to him when he was deputed to the plaintiff for enquiry. He says:

My father sent me to enquire whether the plaintiff had authority to adopt. I came to Meerut and asked plaintiff if she had any authority by which she was going to adopt. She showed me the relinquishment of Jiwan Ram, brother of Ram Saran Das, saying that he did not want to give his son in adoption to plaintiff and another paper she showed me was the will of Ram Saran Das giving her authority to adopt.

40. The only interpretation which can be put upon this statement is that Mt. Kalawati was making a representation that the son of Jiwan Ram being now out of the way, she was competent to adopt Dharam Prakash as a person belonging to a class, whose adoption was authorized by the terms of her husband's will.

41. The adoption took place on 8th August 1918 with due formalities and a certain amount of pomp and ceremony. A photograph of the scene was taken, which has been produced in this case. A deed of adoption was executed by Mt. Kalawati which bars her signature in autograph. This document was scribed by Har Parshad and is attested by no less than 22 witnesses many of whom are man of respectability and position. It was presented for registration by Kalawati in person and she admitted its execution and completion before the registering officer.

42. This document contains amongst others the following recitals:

Under the will, my husband has also directed me that if I so like, I may in order to perpetuate his name and the family, adopt a boy according to my own desire and liking. I have been thinking of it for about six years, I am now about 46 years old and life is transitory and uncertain. I therefore wish to fully carry out the will made by my husband. I have therefore, of my own accord and free will and while in a sound state of body and mind, taken Dharam Prakash, begotten son of Raja Ram, resident of Najibabad in the district of Bijnor in adoption from Bibi Chandrawati, mother of the said Dharam Prakash according to the Hindu law, in compliance with the permission given to me by my husband Lala Ram Saran Das, deceased under the will referred to above and I have performed all the ceremonies in connexion with his adoption today. This is not all. The document proceeds the said adopted son is a minor aged seven years at this time. I shall be his guardian so long as I live.... I, the executant, have made the adoption according to the directions and the will made by my deceased husband in order to perpetuate his name.

43. It is to be borne in mind that the deed of adoption is a very solemn document and some sanctity attaches to the declarations made by the executant in view of the nature of the ceremony and the circumstances under which the document was drawn up.

44. It is clear from the evidence that a representation was made by Kalwati, that the said representation was believed by Chandrawati and that acting upon that belief she gave her son in adoption to the plaintiff.

45. An alteration of the position is inevitable from an adoption. The adopted son renounces his place in his natural family and acquires a legal status in the family to which he is introduced. It is not open to the adopted son to cast aside or renounce his status as an adopted son as though it were a mere cobweb by a mere sweep of the brush. Fresh avenues of responsibilities, domestic, religious and social open out for him in his new sphere of life. It would, therefore, be idle to argue that by the adoption the position of Dharam Prakash was not materially changed.

46. From the facts detailed above there is no escape from the position that all the incidents of estoppel are present in this case and that Mt. Kalawati is precluded from challenging the adoption of Dharam Prakash.

47. The Indian High Courts and the Judicial Committee of the Privy Council have in similar cases and under similar circumstances applied the rule of estoppel. In Rani Dharam Kuer v. Raja Balwant Singh [1908] 30 All. 549, Stanley, C.J., reviewed a large number of authorities of the Indian High Courts in support of estoppel. This decision was affirmed by the Privy Council in Rani Dharam Kunwar v. Balwant Singh [1912] 34 All. 398.

48. The learned advocate for the respondent asks us to distinguish these rulings on the ground that in those cases the adoption had been acted upon for a large number of years. Evidence that adoption has been acted on for a large number of years may be very material on the question as to the factum of adoption but is not a necessary ingredient for its validity. In the case of Rani Dharam Kuer, the feud began very shortly after the adoption. In the case in hand, the plaintiff did not repudiate the adoption till about 31st July 1893, when she made an open challenge and published the same in the advertisement columns of the Leader news paper.

49. The defendant is still a minor. In view of his extreme youth, an arrangement appears to have been arrived at between Kalawati and Chandrawati that the natural mother was to live with the boy and the place of residence was divide between Meerut and Najibabad. It appears from the statement of Basdeo Mal, which may be accepted, that Dharam Prakash lived with Kalawati after his adoption and that he removed to Najibabad two years before the institution of the present suit.

50. Reliance is placed upon the further fact that in certain extracts from school registers (paper No. 189 and paper 30) the name of Dharam Prakash's father is entered as Raja Ram and not as Ram Saran Das. The adoption was made with utmost publicity at the time when the entries were made. There was no dispute as to the adoption. The entry of the father's name is on the very face of it a misdescription, and whoever may be responsible for this mistake, Dharam Prakash who is still a minor cannot be saddled with the consequence thereof. It is probable that the mistake was due either to the ignorance or incompetence of the person who caused the entries to be made in the school registers. It has already been noticed that the representation made by Mt. Kalawati was of a matter of fact and not on a matter either of law or of opinion. Assuming Kalawati was somehow or other misled in her interpretation of the last clause of the will nonetheless, if she made the representation to Mt. Chandrawati as she appears to have done and the latter believed and acted upon it, the former will still be debarred from impeaching the validity of the adoption. It was held in the case of Sarat Chander Day v. Gopal Chander Loha [1893] 20 Cal. 296, that the existence of estoppel did not depend on the motive or on the knowledge of the person, who was holding out the representation and that it was not essential that the intention of the parties whose declaration, act or omission had induced another to act, or to obtain from acting should have been fraudulent or that he should not have been under a mistake or misapprehension.

51. The following passage occurs in a well-known text book.

In every case.... the determining element ia not the motive or the state of the knowledge of the party estopped, but the fact of his representation or conduct as having induced another to act on the faith of such representation or conduct. Caspersz on Estoppel 1915, p. 42.

52. Lord Herschell remarks in the case of Frederick Bloomenthal v. James Ford [1897] A.C. 156.

I cannot myself think that where an unequivocal statement is made by one party to another of a particular fact, the party who made that statement can get rid of the estoppel which arises from another man acting upon it by saying that if the person to whom he made the statement had reflected and thought all about it, he would have come to see that it could not be true. Of course, if the person to whom the statement was made did not believe it, and did not act on the belief induced by it, there is no estoppel.

53. The law on the subject could not have been stated in clearer terms.

54. The learned advocate for the respondent has referred this Court to two Privy Council cases in support of the proposition that there could be no estoppel under circumstances similar to those of the present case. In Dhanraj Joharmal v. Sodi Bai , the factum of adoption itself was not established. Estoppel was sought to be raised not against the adoptive parents but against the niece of the adoptive father on the ground that her father had by his conduct treated the defendant as the adopted son of his own brother. Their Lordships held that estoppel was purely personal and the facts imputed to the father of the plaintiff did not constitute estoppel against him. The next case relied on was Gopee Lal v. Sree Chundraolee Bahoo Ji [1872] I.A. Supp. Vol. 131. Here, there was no representation of a matter of fact. The fact which was represented was admitted to be true but the parties, upon the assumption and admission of the said fact, arrived at the conclusion that the adoption was valid in law. It was held by their Lordships that these circumstances did not create any estoppel between the parties.

55. These two cases therefore are clearly distinguishable and are of no help to the respondent.

56. It was argued though not very seriously, that Mt. Chandrawati was not authorized by her husband to give away her son in adoption and therefore the adoption was not valid under the Hindu law. The contention is not sound. In the absence of an express prohibition of the husband, the natural mother was competent under the Hindu law to give away her son in the dattaka form. Lastly, it is argued that Dharam Prakash was the only son of his parent and that his adoption is opposed to Hindu law. This contention is equally without force. The injunction of the Shashtras against the adoption of an only son is only commendatory and not mandatory.

57. In view of what has been stated above, the appeal ought to prevail and the decree of the Court below should be vacated with costs throughout.

58. The appeal is decreed and the plaintiff's claim is dismissed with costs throughout.


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