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Lachhmi Prasad, Minor, Through Bhagwan Singh Vs. Musammat Parbati - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in54Ind.Cas.910
AppellantLachhmi Prasad, Minor, Through Bhagwan Singh
RespondentMusammat Parbati
Cases ReferredVenkaia Narasimha Appa Rote v. Partha
Excerpt:
hindu law - adoption--widow--power given to two widows jointly to adopt--junior widow, death of--senior widow, whether competent to adopt. - - 1. by will, dated the 21st of july 1907, din dayal directed that after his death his two wives musarnmat sarupi and musarnmat ram dei 'will by all means be like myself the owners of, and have authority over, the properties of whieh i am up to this time in possession without the participation of any one else. , like myself. they may, if necessary, adopt a boy of good family according to their necessity. c). that was a case very like the present one, with this exception that the testator by his will specifically gave a one-half share to each of his two wives......we ought to follow the propositions which the privy council laid down as regards the exercise of joint powers. we refer speoially to page 225, page of 37 m.--ed. where their lordships lay down in general terms the intelligible principle that where a power is given to a and b jointly, that power can be exercised only in the way directed by the donor, namely, by a and b together doing the necessary acts. if it should happen that one of the joint donees dies, the survivor is not competent to perform the act which by the very directions of the testator requires the concurrence of both. in this case the power to take in adoption ceased at the moment of the junior widow's death in 1911. as regards the disposition of the testator's property, we are of opinion that the will gave the two ladies.....
Judgment:

1. By Will, dated the 21st of July 1907, Din Dayal directed that after his death his two wives Musarnmat Sarupi and Musarnmat Ram Dei 'will by all means be like myself the owners of, and have authority over, the properties of whieh I am up to this time in possession without the participation of any one else. They will have all powers of transfer, gift, etc., like myself. They may, if necessary, adopt a boy of good family according to their necessity.' The testator died on the 19th of August 1907. Both wives survived him. Musarnmat Ram Dei had a daughter Musarnmat Parbati, who was the plaintiff in the original action. Musarnmat Ram Dei died in or about the year 1911 and on January 3rd, 1916, Musarnmat Sarupi executed a deed whereby she purported to adopt the appellant. The question in this appeal is whether on the true construction of the Will it was competent for the senior widow to adopt to her late husband. If she were competent, then the appellant is, as he claims to be, heir to the estate of Musarnmat Ram Dei. We are of opinion that the power of adoption given by the Will was a joint permissive one. It created no obligation to adopt : but it did require, first, a joint agreement to adopt : next,' a selection of an heir by both of the wives, and finally a formal legal adoption. Our attention has been called to the case of Venkaia Narasimha Appa Rote v. Partha-sarathy Appa Bow 23 Ind. Cas. 166 : 37 M.199 : (1914) M.W.N. 299 : 12 A.L.J. 315 : 18 C.W.N. 554 : 26 M.L.J. 411 : 15 M.L.T. 285 : 41 I.A. 51 : 16 Bom.L.R. 328 (P.C). That was a case very like the present one, with this exception that the testator by his Will specifically gave a one-half share to each of his two wives. We however, are of opinion that that difference does not oreate any real distinction and that we ought to follow the propositions which the Privy Council laid down as regards the exercise of joint powers. We refer speoially to page 225, Page of 37 M.--Ed. where their Lordships lay down in general terms the intelligible principle that where a power is given to A and B jointly, that power can be exercised only in the way directed by the donor, namely, by A and B together doing the necessary acts. If it should happen that one of the joint donees dies, the survivor is not competent to perform the act which by the very directions of the testator requires the concurrence of both. In this case the power to take in adoption ceased at the moment of the junior widow's death in 1911. As regards the disposition of the testator's property, we are of opinion that the Will gave the two ladies the whole of Din Dayal's property absolutely. It follows, therefore, that in our view the appellant is a complete stranger as far as regards any rights to any share in the property of the late Musammat Ram Dei, and, therefore, agreeing as we do with the finding of the learned Subordinate Judge, we dismiss the appeal with costs and fees on the higher scale.


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