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Ranbir Karam Singh Vs. Jogindra Chandra Bhattacharji and ors. - Court Judgment

LegalCrystal Citation
Subject Family
CourtAllahabad
Decided On
Reported inAIR1940All134
AppellantRanbir Karam Singh
RespondentJogindra Chandra Bhattacharji and ors.
Excerpt:
- - although we are not satisfied that the requirements of the law as to the proof of ex. section 2(d) defines 'indian christian' as meaning a native of india who is, or in good faith claims to be, of unmixed asiatic decent and who professes any form of the christian religion. 13. it is not denied that sardar karam singh as well as his wife were of unmixed asiatic descent, were natives of india and professed the christian religion. dinanath, states that he always thought that both of them were good christians and that, as far as his knowledge went, none of them ever professed either hindu or sikh belief. karam singh, to the best of his knowledge, was a member of the indian christian community at lahore and that he and his wife belonged, as far as he knew, to the church of england and.....verma, j.1. this is an appeal by defendant 1. the plaintiff's suit was thatit be declared that defendant 1 is neither the adopted son of the deceased, mrs. surendri helen karam singh or her husband, nor is the legal heir to her estate in the hands of the administrator-general and official trustee, united provinces, allahabad, which is divisible according to law only amongst the plaintiff and defendants 2 to 4 who are her legal heirs.2. the court below has decreed the suit. the plaintiff and the persons who were originally defendants 2 to 4 are brothers. mrs, surendri helen karam singh deceased was their sister. dr. j.c. bhattacharji, who was originally defendant 2, seems to have died after the institution of the suit and a number of persons have been brought on the record as his legal.....
Judgment:

Verma, J.

1. This is an appeal by defendant 1. The plaintiff's suit was that

it be declared that defendant 1 is neither the adopted son of the deceased, Mrs. Surendri Helen Karam Singh or her husband, nor is the legal heir to her estate in the hands of the Administrator-General and Official Trustee, United Provinces, Allahabad, which is divisible according to law only amongst the plaintiff and defendants 2 to 4 who are her legal heirs.

2. The Court below has decreed the suit. The plaintiff and the persons who were originally defendants 2 to 4 are brothers. Mrs, Surendri Helen Karam Singh deceased was their sister. Dr. J.C. Bhattacharji, who was originally defendant 2, seems to have died after the institution of the suit and a number of persons have been brought on the record as his legal representatives.

3. The plaintiff and his brothers are Christians. So were their sister, Mrs. Surendri Karam Singh deceased, and her husband, Mr. Karam Singh. These facts are admitted. It is also common ground that Karam Singh died intestate on 2nd September 1931, and all his property was inherited by his widow, the sister of the plaintiff. It is again common ground that this lady, Mrs. Surendri Helen Karam Singh, also died intestate on 11th April 1932. At the time of her death she was possessed of moveable and immovable property and the dispute in this case relates to this property. The case of the plaintiff is that the deceased Mrs. Karam Singh being a Christian, he and his brothers are the legal heirs in accordance with the provisions of the Indian Succession Act. Defendant 1, who is a minor under the guardianship of one Dr. Miss C.M. John, contested the suit. The principal pleas raised on behalf of defendant 1 were that the property did not belong to the lady, Mrs. Surendri Helen Karam Singh; that all the property was owned by her husband, the late Mr. Sardar Karam Singh; that defendant 1 was the legally adopted son of the late Mr. and Mrs. Karam Singh, and as such was entitled to the estate left by them; that Mr. Karam Singh and his wife were competent to adopt the contesting defendant as their son and heir under the Punjab Customary Laws; and that the plaintiff was estopped from denying the adoption. In para. 24 of the written statement it was further pleaded that

the deceased Sardar Karam Singh was a Sikh by caste before his conversion to Christianity and in the matter of succession was governed by rules of Hindu law and Punjab Customary Law. The plaintiff and his brothers are no heirs to the late Mr. Karam Singh.

4. The Court below has held that the property in question belonged to Mrs. Surendri Helen Karam Singh; that defendant 1 was not the adopted son of Mr. or Mrs. Karam Singh; that he was not their heir and was not entitled to inherit the property in question; that no custom of adoption governing Indian Christians had been proved, and that there was no estoppel against the plaintiff.

5. The case of the plaintiff was that defendant 1 was a foundling whom the late Mr. Karam Singh had taken over from the police at Lahore with the intention of protecting him and bringing him up. In proof of this assertion, the plaintiff has filed Ex. 4, which is a certified copy of a police report dated 27th June 1929. Mr. Muhammad Sadiq, one of the witnesses produced by defendant 1, admits that this report bears his signature. He was the Kotwal at Lahore at that time. It is stated in this report that the maintenance and care of 'the newly born child' (the word in the original is 'tifl' and the verb used in the original denotes that the child was a male child) had been at first made over to one Hafiz Lohar, but afterwards, on account of the unsatisfactory manner in which Hafiz looked after the child, it had been entrusted to Mr. Karam Singh, Station Superintendent of the office of the Inspector-General of Police, Lahore. It is also stated in this report that Mr. Karam Singh expressed a desire that the child be made over to him. This report was put up before a Magistrate who sanctioned the making over of the child to Mr. Karam Singh. The case put forward on behalf of the appellant, on the other hand, is that he was born on 19th June 1929, and nine days after his birth he was 'given in adoption' to Mr. Karam Singh and his wife by the appellant's mother and her sister. We have not been referred to any evidence to show who the appellant's mother was or who her sister was. As to the manner in which the adoption was performed, the case put forward on behalf of the appellant is that no ceremony of any sort is required by the Punjab Customary Law governing the Sikh community to which Mr. Karam Singh belonged before his conversion to Christianity, that Customary law must be applied to Mr. Karam Singh, and that therefore it was not necessary for Mr. Karam Singh to perform any ceremony whatsoever. It is argued that the facts that Mr. Karam Singh took over the appellant, brought him up and used to describe him as his 'adopted son,' are sufficient to confer on the appellant the legal status of sonship and to entitle him to succeed to the property left by Mrs. Surendri Helen Karam Singh.

6. Of the witnesses produced on behalf of the appellant, the only person who claims to be an eye-witness of what may be described as the factum of adoption is one Feeroz Din who says that he was Mr. Karam Singh's official orderly. His story is that the adoption took place in the evening in the month of June or July about eight years before 6th January 1937, when he was giving evidence, and that the witness

was massaging the legs of Mr. Karam Singh at the time when a Sikh couple came to him and said that they had brought a boy for the said Mr. Karam Singh. The couple said they would not be able to bring up the child and asked Mr. Karam Singh to adopt the boy.

7. He states that Mr. and Mrs. Karam Singh agreed to the proposal of the Sikh couple, who went away leaving the child behind with Mr. and Mrs. Karam Singh. After having carefully perused the statement of this witness, we have not the slightest hesitation in agreeing with the opinion of the Court below that the evidence given by this witness is a 'tissue of lies.' It will also be noticed that the allegation in the written statement is that the appellant was given in adoption by his mother and her sister, whereas the witness's story is that a Sikh couple came to Mr. Karam Singh with the boy and left him behind. Baba Mani Ram is one of the witnesses examined by defendant 1 on commission and he states that, as far as he could recollect, Mr. Karam Singh had said in the presence of all the other clerks of the office that he had got the boy 'through the agency of the police.' In view of this statement of a witness of the appellant himself, and in view of the inherent improbability of the story related by Feeroz Din, we are not prepared to place any reliance on his evidence. As already stated, there is no other eye-witness of the alleged adoption. It is argued however that the appellant's case of adoption is proved by the fact that Mr. and Mrs. Karam Singh had this boy baptized on 2nd February 1930, and reliance is placed on a copy of the baptismal certificate (Ex. A) printed at p. 39 of the paper book. The Rev. Dinanath, who was the Vicar of the Holy Trinity Church where the baptism took place, has been examined on commission by the appellant. He states that he performed the baptism and that Ex. A is a true copy of the entries in his register which he had before him when he was making his statement.

8. The argument on behalf of the appellant is that in the column 'parents' names' the entry is as follows: 'Adopted by Stephen Karam Singh, Surendri Karam Singh,' and it is urged that this entry must have been made on a statement by Mr. and Mrs. Karam Singh that they had adopted the boy. Although we are not satisfied that the requirements of the law as to the proof of Ex. A have been strictly complied with, we shall deal with this document on its merits. We may also accept the argument that Mr. and Mrs. Karam Singh in all likelihood told Rev. Dinanath that the child to be baptised had been 'adopted' by them. It must however be remembered that adoption in the technical legal sense is one thing, and the bringing up of a child, even with the intention of ultimately giving one's property to that child, and loosely describing him as having been adopted, is quite another. Although Dr. Miss John, the certificated guardian of the appellant, has made in the Court below the startling statement that 'the custom of adoption prevails very freely amongst the Christians' and that 'by adoption I mean perpetuating of the line and that the adopted boy becomes the owner of the adoptive parents' (the word 'property' seems to have been left out by oversight) it has not been argued before us that adoption is a recognized institution among Christians in the sense in which it is understood and recognized among the Hindus and in Hindu law.

9. It is possible that Mr. and Mrs. Karam Singh, who, it is common ground, had no children of their own and had taken over this boy from the police with the intention of bringing him up, had grown very fond of him and used to describe him as their adopted son, but that would not make the boy Mr. Karam Singh's adopted son in the sense in which that expression is used in Hindu law. It is further urged that the fact that Mr. and Mrs. Karam Singh had this boy baptised goes to support the case of the appellant. In this connexion reliance has been placed on Ex. C, p. 33, which is alleged to have been the invitation card which Mr. and Mrs. Karam Singh are alleged to have issued at the time of the baptism. The witness Feeroz Din has stated that he was given this invitation card 'to join the ceremony' and that it remained with him and he made it over to the guardian of the appellant when she visited Lahore. As we have already stated, we do not consider Feeroz Din to be a truthful witness at all. It may further be pointed out that appellant's witness Baba Mani Ram states that he was present at the time of the ceremony of baptism. But no question was put to him as to whether he received any such invitation card. The suit was instituted in January 1935; the appellant's written statement was filed in May 1935, and issues were framed in December 1935. This invitation card was not produced in Court until 6th December 1936. Muhammad Sadiq, another witness produced on behalf of the appellant, states that he does not remember if any invitation card to join the ceremony of baptism was issued at the time, although he says that he was present at the ceremony. We do not in these circumstances consider that Ex. C has been proved to be a genuine document. But even if we take it to be a genuine invitation card which was really issued by Mr. and Mrs. Karam Singh at the time of the appellant's baptism, that cannot help the defendant. The appellant relies on the words 'adopted son of S. Karam Singh....'

10. The observations which we have made with regard to the entry in the baptismal certificate apply to the use of these words in this invitation card also. Further, the adoption is alleged to have taken place in June 1929, and the baptism took place in February 1930. The position thus is that there is no contemporaneous documentary evidence in proof of the alleged adoption. The oral evidence to prove it consists of the testimony of a solitary witness Feeroz Din which is wholly unsatisfactory. In this connexion a statement of the appellant's witness, Mr. J.T.M. Bennet, is significant. A question was put to him in cross-examination:

What did you understand by his saying that he had adopted the boy? Was it in the ordinary sense amongst Europeans that he was going to bring up the boy as his son; and eventually to make him his heir, or was it in any other special sense

11. The answer to this question is in these words:

I understood that his adoption was in the ordinary sense understood amongst Europeans that he was going to bring up the boy as his son and make him his heir.

12. We are therefore not prepared to hold that the appellant has proved the factum of adoption. It has been argued on behalf of the appellant that Mr. Karam Singh, although he renounced Sikhism and embraced Christianity, continued to retain what is described as 'the right of adoption.' As stated above, it was alleged in para. 24 of the written statement that in the matter of succession Sardar Karam Singh was governed by rules of Hindu law and the Punjab Customary Law, it is argued that among the class of sikhs to which Sardar Karam Singh belonged before his conversion to Christianity and in the locality where his family had originally resided, there was a custom of adoption and that Mr. Karam Singh continued to be governed by that custom. Now, the Succession Act (39 of 1925) states in its Preamble that it was expedient to consolidate the law applicable to intestate and testamentary succession in British India. Section 2(d) defines 'Indian Christian' as meaning

a native of India who is, or in good faith claims to be, of unmixed Asiatic decent and who professes any form of the Christian religion.

13. It is not denied that Sardar Karam Singh as well as his wife were of unmixed Asiatic descent, were natives of India and professed the Christian religion. Defendant's own witness, the Rev. Dinanath, states that he always thought that both of them were good Christians and that, as far as his knowledge went, none of them ever professed either Hindu or Sikh belief. He has further stated that Mr. Karam Singh, to the best of his knowledge, was a member of the Indian Christian community at Lahore and that he and his wife belonged, as far as he knew, to the Church of England and attended the Holy Trinity Church, Lahore. Baba Mani Ram has stated that the funeral ceremonies of Mr. Karam Singh were performed according to Christian rites at Lahore by an Indian Christian padri. Thus, there can be no doubt whatsoever that Mr. and Mrs. Karam Singh were Christians not only in name and form, but they followed the tenets of the Christian religion sincerely and faithfully. It is difficult to believe therefore that Mr. Karam Singh could possibly ever have had any intention of retaining any customs, traditions or practices of the religion which he had deliberately renounced. Section 5(1) of the Indian Succession Act provides:

Succession to immovable property in British India of a person deceased shall be regulated by the law of British India, wherever such person may, have had his domicile at the time of his death,

and Sub-section (2) of that Section provides that succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death. There is no question that Mr. Karam Singh as well as his wife had their domicile in British India. Succession to their property, immovable as well as movable, is therefore governed by the law of British India. Part IV of the Act deals with consanguinity, and by Sec. 23, which is the first Section in that part, it is provided that nothing in that part shall apply to any will made or intestacy occurring before 1st January 1866, or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi. It follows therefore that the provisions of that part apply to Indian Christians. Sec. 24 runs thus: 'Kindred or consanguinity is the connexion or relation of persons descended from the same stock or common ancestor,' and Section 25(1) provides that

lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the direct descending line.

14. Section 26 deals with collateral consanguinity. It will thus be noticed that there is absolutely no mention of adoption as creating any kind of relationship whatsoever. Part 5 deals with the intestate succession and by Sub-section (1) of Section 29 succession to the property of any Hindu, Mohamedan, Buddhist, Sikh or Jain is excepted. Sub-section (2) of Section 29 provides:

Save as provided in Sub-section (1) or by any other law for the time being in force, the provisions of this part shall constitute the law of British India in all cases of intestacy.

15. The rules as to succession in the case of an intestacy then follow in Chap. II. It is not denied that, but for the adoption set up on behalf of the appellant, the plaintiff and his brothers are the heirs of the deceased lady under the provisions of the Succession Act. It is argued, however, that as Sardar Karam Singh was a resident of the Punjab, he must be taken to be governed by the Punjab Customary Law even on his conversion to Christianity. It is alleged, on the basis of a statement made by Baba Mani Ram, that Mr. Karam Singh was a Khattri by caste before his conversion to Christianity. It is then argued on the authority of a book called 'Customary Law in the Gujranwala District, Vol. XXVI' by Dalip Singh, Settlement Officer, that the custom of adoption did prevail among the Khattris in that district. Now, in the first place we are not satisfied that there is really any clear and convincing evidence that Mr. Karam Singh was a resident of the district of Gujranwala or was a Khattri by caste. But even accepting these allegations for the sake of argument as true, the question still remains as to whether it can be held that even after Mr. Karam Singh was converted to Christianity he continued to be governed by the customs prevailing among the Khattris of the district of Gujranwala. It seems to us that the argument that succession to the estate of an Indian Christian can be governed by the rules applying to the community to which he belonged before his conversion to Christianity is not sound. Their Lordships of the Privy Council have had occasion to deal with this matter in Kamawati v. Digbijai Singh (1922) 9 AIR PC 14. The relevant portions of their Lordships' judgment are at pp. 533 and 534 of the Report. Their Lordships observe that an argument was submitted to them to the effect that even accepting the view that the deceased was a Christian, still he had by his acts made such an indication as the law would respect, to the effect that his succession was not to be governed by the Succession Act. Their Lordships then observe:

Their Lordships can give no countenance to such a principle. It is unavailing to quote the cases of Abraham v. Abraham (1861-63) 9 MIA 195 or Sri Gajapathi Radhika Patta Maha Devi Garu v. Sri Gajapathi Nilamani Patta Maha Devi Garu (1869-70) 13 MIA 497. These cases preceded the Succession Act and cannot modify or interpret it.

16. Proceeding further, their Lordships say:

The question accordingly is, was the late owner of this estate, or was he not, a Hindu? If he was, the Mitakshara law would apply. If he was a Christian, the Succession Act rules would apply.

17. Then their Lordships state that the argument before them was that, notwithstanding the fact that the deceased was proved beyond question to have been a Christian at the time of his death, the Hindu law of succession should apply to his estate. The pronouncement of their Lordships with regard to this argument is in these words:

A situation of nothing but confusion could be thus produced. The plain law of the Succession Act would be eviscerated, and in each case inquiry might have to be entered upon as to whether a deceased subject of the Crown wished or by his acts compelled that the law of the land should not apply to his case. A particular subject can settle that in India, as in other parts of the Empire, by exercising whatever be his religion his power of testacy, and definitely declaring how he desires his affairs to be regulated so far as his own individual property is concerned.

18. It will be noticed that the argument pressed upon us is of the same type as was submitted to their Lordships, and in our opinion such an argument cannot, in view of the observations of their Lordships of the Privy Council quoted above, be accepted. It is argued however that so far as a resident of the Punjab is concerned, the question of succession to his estate must be decided in accordance with the provisions of the Punjab Laws Act, 4 of 1872. Now, Section 5 of that Act provides that:

In questions regarding succession...adoption...the rule of decision shall be (a) any custom applicable to the parties concerned...(b) the Mohamedan law, in cases of Mohamedans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment or is opposed to the provisions of this Act or has been modified by the provisions of any such custom as is above referred to.

19. It is obvious that Clause (b) has no application to the case before us, but it is argued on the basis of Clause (a) that the succession to the estate of Mrs. Karam Singh must be held to be governed by the customs prevailing among the Sikhs and the Khattris of the Gujranwala district. This argument however completely loses sight of the important words 'applicable to the parties concerned.' Learned counsel appearing for the appellant has invited our attention to two cases decided by the Punjab Chief Court, viz., Mukerji v. Alfred (1909) 36 PR 1909 and Sohan Lal v. A.Z. Mukuin (1929) 16 AIR Lah 230. These very cases however are in our opinion against the contention of the learned Counsel. It was held in the first case mentioned above that in the absence of any custom, as provided by Section 5(a), Punjab Laws Act, the rule of law applicable to the case of Hindu converts to Christianity is as provided for in the Succession Act. It was further held that:

The test for applying the rule of equity and good conscience to regulate succession in the case of a convert is to ascertain the course of conduct and usage adhered to since conversion.

20. It would thus appear that this case is no authority for the proposition that the rule of law applicable in the present case should be the custom or practice which prevails in the community to which Mr. Karam Singh belonged before conversion. In the second case mentioned above it was observed that so far as the province of Punjab was concerned, under Section 5, Punjab Laws Act, 1872, the primary rule for decision in matters of succession was custom, which may be found to govern the parties, but it is for those who allege that there is such a custom to establish it. Thus, even according to the authorities cited by the learned Counsel for the appellant, it is at least necessary for the appellant to allege and to prove that there is any custom of adoption among the Christian community in the Punjab, or in any section of that community, before any question as to whether any such adoption confers on the alleged adopted boy the same rights as an adoption in Hindu law confers on him, can be considered. It is sufficient to state that no such custom has been set up, much less proved. It may be mentioned here that in Sohan Lal v. A.Z. Mukuin (1929) 16 AIR Lah 230, mentioned above, which is a decision by a learned single Judge, a somewhat restricted meaning has been given to the observations of their Lordships of the Privy Council in Kamawati v. Digbijai Singh (1922) 9 AIR PC 14. In view of the fact however that in the case before us no custom alleged to be applicable to Christians has either been set up or proved, we do not consider it necessary to express any opinion as to the soundness or otherwise of the view expressed on that point in Sohan Lal v. A.Z. Mukuin (1929) 16 AIR Lah 230. Reference has also been made to the Caste Disabilities Removal Act, 21 of 1850, and reliance has been placed on the word 'right' in Section 1. It has been urged that Mr. Karam Singh before he was converted to Christianity had the 'right' to adopt a son and that in view of the provisions of this Act he ought not to be held to have forfeited that right. In our opinion, this argument cannot be accepted. A Hindu has the 'right' to use the language of the learned Counsel for the appellant to marry, and to have at the same time as many wives as he likes. A Muslim has the 'right' to have at the same time four wedded wives. Can it be maintained for a single moment that a Hindu or a Muslim, after renouncing Hinduism or the Muslim faith and embracing Christianity, will under the Caste Disabilities Removal Act continue to possess the 'right' of having more than one wife? Various other considerations can be mentioned to show the incorrectness of the argument advanced on behalf of the appellant, but we consider it unnecessary to dwell on it any further. The Caste Disabilities Removal Act is:

An Act for extending the principle of Section 9, Regn. 7, 1832, of the Bengal Code throughout the territory subject to the Government of the East India Company.

21. The Preamble provides:

Whereas it is enacted by Section 9, Regn. 7, 1832, of the Bengal Code, that 'whatever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Mohamedan persuasion, or where one or more of the parties to the suit shall not be either of the Mohamedan or Hindu persuasion, the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled,' and whereas it will be beneficial to extend the principle of that enactment throughout the territories subject to the Government of the East India Company; it is enacted as follows:

22. It is clear therefore that the Act is intended to deal with the rights to property of the person who is converted and not with succession to the estate of the convert. The question that arises in the case before us is as to whether defendant 1 is entitled to succeed to the estate of the deceased, in preference to the persons entitled under the Succession Act, on the ground that he was taken in adoption by a person who, at the time when he is alleged to have taken him in adoption, was admittedly a Christian. There is absolutely no evidence to show that after his conversion to Christianity Mr. Karam Singh ever expressed any desire, or did anything which can be said to indicate an intention, to retain any custom that might have prevailed in the community to which he had belonged before his conversion. It is said that his mother, who was a Sikh by religion, used to come to see her son and used to stay with him and that Mr. Karam Singh used to permit her to stay in his house. But this can be no evidence of the expression of any intention on the part of Mr. Karam Singh. Reliance is further placed on the statement of Feeroz Din that Mr. Karam Singh performed the funeral ceremonies of his mother according to Sikh religion. In cross-examination this performance of the funeral ceremonies is whittled down to Mr. Karam Singh supporting the 'arthi' on which the dead body of his mother was taken. The witness further states in cross-examination that Karam Singh stayed there only for the night and returned to Lahore the next day. In addition to this, as we have already stated, we are not prepared to place any reliance on the testimony of Feeroz Din. The last point urged on behalf of the appellant is that the suit is barred by estoppel. According to the judgment of the Court below, the argument of estoppel was based on a statement of the present plaintiff in the proceedings for the guardianship of the appellant after the death of Mrs. Surendri Helen Karam Singh. In the Court below reliance was placed on the following statements which the plaintiff made in the Court of the District Judge of Meerut on 13th January 1933, (vide Ex. B, page 43):

The adoptive mother of the child was my sister.... The child is owner of all the property left by my sister. I have no claim.

23. We fail to understand how these statements can be said to create the bar of estoppel. One may say that the plaintiff, having made those statements on a previous occasion, should not be believed when he makes statements to the contrary in the present case. But that is totally different from saying that the plaintiff is estopped. We agree however with the Court below that the plaintiff has fully explained the statements quoted above on which reliance was placed in support of this argument of estoppel in the Court below. He states in his deposition in the present case that he made the statement (Ex. B) in the guardianship case as he was told by Yakub Ali Khan, Kotwal, Meerut, that there was a will in favour of defendant 1 and under that impression he stated, that defendant 1 was the owner of all the property which had been left by his sister. He further stated that he had been told by Mr. Mukerji, who was the vakil of Dr. Miss John in the guardianship proceedings, that defendant 1 had been adopted by Karam Singh and that he mentioned that fact in his statement and said that his sister was the adoptive mother of defendant 1. It is argued that it is not probable that the lawyer of Dr. Miss John would have had this conversation with the plaintiff. But we see nothing inherently improbable in the story that Mr. Mukerji, although he was appearing for a rival applicant for guardianship, namely Dr. Miss John, had mentioned to the present plaintiff that Karam Singh had adopted the boy. For one thing, Mr. Mukerji might have felt that an information like that might deter the present plaintiff from actively prosecuting his own application for the guardianship of the boy; and for another, there is nothing to show that Mr. Mukerji had given this information to the present plaintiff after the latter had made his application for guardianship. It may be mentioned that an unsigned and unattested writing purporting to be the last will and testament which Mrs. Surendri Helen Karam Singh is supposed to have intended to execute, has been produced on behalf of the defendant in this case. It is thus not unlikely that this story as to there being a will in existence in favour of the boy was circulated after the death of Mrs. Karam Singh. We agree therefore with the Court below that the explanation given by the plaintiff is sufficient. The argument on the point of estoppel advanced before us has gone somewhat further. It has been argued that the plaintiff as well as his brothers by their conduct in the lifetime of Mr. Karam Singh showed that they looked upon the appellant as Mr. Karam Singh's adopted son, and reliance has been placed on Section 115, Evidence Act. Granting for the sake of argument that the plaintiff and his brothers did show in the lifetime of Mr. Karam Singh that they looked upon this boy as the son of Mr. Karam Singh, we are at a loss to understand how Section 115 can be brought into play in this case and how it can be said that the provisions of that Section in any manner operate to bar the present suit. It is argued that by their conduct the plaintiff and his brothers created a certain belief in the mind of Mr. Karam Singh. But the creation of a belief alone is not what the Section requires. It is further necessary that the person who is made to believe something must act upon that belief. We are not told in what manner Karam Singh acted upon the belief which the plaintiff and his brothers are alleged to have created in his mind. Then again, the present suit is not against Karam Singh. To argue that the appellant is a representative of Karam Singh is to beg the whole question. For the reasons given above we hold that the appeal is devoid of any merit and dismiss it with costs.


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