G.C. Das, J.
1. This is an appeal by the plaintiffs against a reversing judgment of the learned Subordinate Judge of Berhampur dated 31-1-1953. The plaintiffs commenced an action for recovery of possession of certain lands with mesne profits. The disputed lands originally belonged to one Pandaba Behera who died in about 1925 leaving behind him his widow Draupadi, plaintiff-1 and son, Dukha. Dukha married one Rekha Beherani, defendant-2; On 11-9-1948, Dukha died leaving behind him his widow (defendant No. 2) and his mother, plaintiff No. 1.
The plaintiffs case was that while Draupadi was still mourning the death of her son, she was prevailed upon by defendant-3, Benu Behera, totake his son Sombari Behera (defendant-1) in adoption, and got him married to her widowed daughter-in-law, defendant-2. It was further represented to her that in that event defendants 1 and 2 would be of considerable assistance to her in her old age. Plaintiff-1 fell a prey to these proposals and accordingly on 24-9-1948, she executed a deed of adoption in favour of defendant-1 (Ext. A ). Between September 25 and 26, 1948, plaintiff-1 got defendant-1 married to defendant 2.
The further allegation of the plaintiffs was that although plaintiff-1 executed a deed of adoption in favour of defendant-1, she had not in fact adopted him since by that time defendant-1 had already been married elsewhere. Accordingly she challenged the adoption, on the ground that the consent of the nearest reversioner had not been obtained. Shortly after the execution of the deed of adoption, defendants 1 and 2 began to ill-treat plaintiff-1.
Hence on 23-7-1949, plaintiff No. 1 executed a registered deed cancelling the deed of adoption dated September 24 and subsequently took plaintiff-2 in adoption, and executed another deed of adoption in his favour on 24-11-1949. On 2-8-1949, defendants 1 and 2 having come to know about the cancellation of the deed of adoption in favour of defendant-1, they executed a registered deed of conditional sale in favour of defendant-3, the natural father of defendant-1 in respect of the disputed properties for a consideration of Rs. 700/-.
The plaintiff further alleged that this document is not a genuine one and there was no necessity for executing the same. In pursuance of the deed of sale, defendants 1 and 2 along with de-fendant-3 and his sons, defendants 4 and 5, were in unlawful possession of the disputed properties which compelled the plaintiff to commence the present suit.
2. The defence of the defendants was that after the death of Dukha Behera the suit properties vested in his widow, Rekha Beherani (D.2) and that with a view to divert the property from her, plaintiff-1, Draupadi, with the consent of the reversioners did in fact adopt defendant-1 and got him married to defendant-2, and it is not true that by the time of the adoption detendant-1 had already been married. Thus, the adoption of defendant-1 by plaintiff-1 was perfectly valid and accordingly he acquired a valid title to the disputed properties.
The adoption of plaintiff-2 by plaintiff-1 is neither true nor valid since her power to adopt had been exhausted by then. It was further averred that plaintiff-1 having executed the deed of adoption in favour of defendant-1 and having by her representations caused a change in the latter's status as well as of defendant-2, plaintiff-1 is now estopped from disputing the validity of the adoption of defendant-1. They also stated that the deed of conditional sale executed by defendants 1 and 2 in favour of defendant-3 is not a fictitious document and in fact the amount of Rs. 700/-was secured to be utilised in discharging the family debts, the major part of which was contracted by plaintiff-1 herself.
3. The learned trial Judge on a consideration of the above pleadings and the evidence on recordheld that the adoption oE defendant-1 was void on the ground that plaintiff-1 was incompetent to adopt in the presence of her widowed daughter-in-law (defendant-2), and further she had no authority from her husband to make such an adoption as also the consent of the reversioners was not obtained before defendant-1 was actually taken in adoption. The trial judge also held that in view of the fact that Dukha died leaving behind him his widow who at the time of the alleged adoption had not been remarried, plaintiff-1 had no power to make such adoption.
Thus, accordingly he held that the adoption of defendant-1 was void ab initio. He further held that since after the adoption,, defendant-1 remarried defendant-2, the latter had suffered a civil death which gave power to plaintiff-1 to make an adoption, to her husband. In fact, she adopted plaintiff-2 with the consent of the reversioners and consequently plaintiff-2 is the legally adopted son of plaintiff-1. In view of the above findings the trial Court directed the plaintiffs to recover possession of the suit-properties after ejecting the defendants therefrom. With regard to the claim for mesne profits, he found that the claim had not been proved and accordingly he rejected the same. The defendants being aggrieved by the decision with regard to the recovery of possession preferred an appeal and the plaintiffs preferred a cross-appeal against the disallowance of the mesne profits.
4. The Court of appeal below held that plaintiff-2 was not validly adopted by plaintiff No. 1, since her power having been once exhausted by adopting defendant-1 it could not be revived again. He also found that the adoption of defendant-1 was void; but dismissed the plaintiffs' suit on the ground that it was barred by principles of estoppel and also dismissed the plaintiff's cross-appeal in respect of the mesne profits.
5. Mr. B. K. Pal, learned counsel appearing on behalf of the appellants did not challenge the finding that the 1st plaintiff's power to adopt was exhausted in view of the decision in Gurunath v. Kamalabai, (S) AIR 1955 S.C. 206 (A); wherein following the decision of the Judicial Committee in Amarendra Mansingh v. Sanatan Singh 60 Ind App 242 : (AIR 1933 PC 155) (B), it was held by the Supreme Court that the interposition of a grandson or the son's widow competent to continue the line by adoption brings the mother's power of adoption to an end.
Their Lordships further held that for about three quarters of a century, the rule that the power of a widow to adopt comes to an end by the interposition of a grandson or the sons's widow competent to adopt has become a part of Hindu Law though the reasons for limiting the power may not be traceable to any Shastric text; and the rule is neither inequitable nor unjust nor is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption.
But with regard to the other finding in respect of the adoption of defendant-1 having been made in his favour, he argued with some vehemence that the plaintiff-1 was not estopped from going behind the terms as embodied in Ext. A andthe Court of appeal below is wrong in reversing the judgment of the trial Judge. Therefore, the sole question that was canvassed at the bar was whether or not the suit was barred by the rule of estoppel.
6. It may be remembered that the whole defence of the defendant was that plaintiff-1 having in fact adopted defendant-1 and having executed the deed of adoption, Ext. A, in his favour she is now estopped from contending that defendant-1 is not the validly adopted son and that in any case Ext. A must be viewed as a deed of family settlement which must be binding on plaintiff-1, although in the written statement this plea that Ext. A may be viewed as a deed of family settlement was not taken.
Plaintiff 1 by her own action brought about a change in the status of her daughter-in-law, defendant 2 as a result of which the latter had lost her right to the properties of her deceased husband, Dukha Behera. Secondly, the properties having been vested in defendant 2, Rekha Beherani being the widow of the last male-holder, plaintiff 1 bad no manner of right in those properties. In the deed of adoption Ext. A it was provided that after the adoption of defendant 1 he would become the sole owner of the disputed property.
Admittedly on the date of the execution of the deed of adoption defendant 2 had not remarried defendant 1. It appears to have been celebrated either on the day following or a day thereafter, and this remarriage was brought about by none-else than plaintiff 1 herself. The plaintiff 1 having taken this step should not be allowed now to take advantage of her own wrong.
7. Mr. Pal on the contrary urged that all that was alleged by the defendants was that the plaintiff 1 adopted defendant 1 after taking the consent of the reversioners. The 1st defendant was not married by the date of adoption; and the defendants are not trespassers. Thus, the 1st plaintiff is estopped from challenging the adoption. They further averred that a change in the position of the 1st defendant was brought about due to the representation of the 1st plaintiff.
Accordingly she is estopped from challenging the adoption (vide paragraph 6 of the written statement). Therefore Mr. Pal contended that it was never pleaded that there was any change in the status of Rekha, D-2. Thus, the whole question that falls to be considered now is whether plaintiff 1 can now challenge the validity of the adoption,
8. The law of estoppel has been embodied in Section 115 of the Indian Evidence Act and it runs as follows :
'When one person has, by his declaration, act or omission, intentionally 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 betweeft himself and such person or his representative, to deny the truth of that thing.'
The principle underlying this section is that estoppel may be described as a rule by which a person, in some cases will not be allowed to plead the contrary of a fact or state of things which he has formerly asserted by words or conduct. Inplain words, a person shall not be allowed to say one thing at one time and the opposite of it at another time.
Mulla in his book 'Principles of Hindu Law' in Section 513 dealt with the question of estoppel. According to him a person who is otherwise entitled to dispute an adoption may, by his declaration, act or omission, be estopped from disputing it. The rule of estoppel is laid down in Section 115 of the Indian Evidence Act. Estoppel thus operates merely as a personal disqualification and does not bind any one who claims by an independent title. A person may be so estopped although he was acting in good faith or without full knowledge of the circumstances or under a mistake or misapprehension. The misrepresentation to operate as an estoppel must be of a matter of fact.
An erroneous expression of opinion that an adoption was valid in law cannot lead to an estoppel. Mere acquiescence in an adoption, or mere presence at an adoption, does not create an estoppel or even subsequent conduct recognising the adoption.
9. Mr. Pal relied upon certain decisions of the Privy Council in Dhanraj Joharmal v. Soni Bai, AIR 1925 PC 118 (C) and Kalawati Devi v. Dharam Prakash, AIR 1933 PC 71 (D), to show that plaintiff 1 cannot be held to be bound by the principle of estoppel in this case.
He also relied upon two other decisions of the Bombay and Nagpur High Courts reported in Shamlal v. Jiyabai, AIR 1944 Nag 62 (E) and Tirkangauda v. Shivappa, AIR 1944 Bom 40 (F). In the case of AIR 1925 PC 118 (C), their Lordships of the Judicial Committee held that the plaintiffs were not estopped from questioning the adoption and denying that the adopted son acquired any rights of collateral succession by the adoption. Their Lordships followed a previous decision of the Board in Gopi Loll v. Mt. Sree Chundrobee, 19 Suth WR 12 (G). The facts of that case were that one Ramdhan and Jhoharmal were two brothers carrying on business at different places. They were Agarwallas by caste. Joharmall died in September, 1912 and the defendant Dhanraj claimed to have been adopted by him some years before his death. On the death of Ramdhan in 1914 this Dhanraj claiming to be the adopted son of Joharmull took possession of his estate claiming also to be entitled to Ramdhan's property. The plaintiff Soni Bai who was the daughter of Ramdhan filed a suit for declaration that she was entitled to the estate of her father, Ramdhan Marwari, by inheritance and challenged the adoption of Dhanraj.
Thus, it appears that it was a suit by the reversioner challenging the adoption by her father's brother and accordingly their Lordships held that the plaintiffs were not estopped from questioning the adoption. The next decision referred to was a case reported in AIR 1933 PC 71 (D). In that case the factum of adoption was not disputed at all and the only question for their Lordships' consideration was as to the proper construction of a clause of prohibition in the will; and the respondent conceded that he was unable to support the judgment appealed against on the ground of estoppel, and their Lordships while considering thata will which authorised a widow of the testator to adopt contained the prohibition against adoption of 'any son of the relations of her family, which was the translation of the expression 'khandani ristadaran' and the appellant adopted her brother's daughter and it was held that the word 'khandan' was used by the testator in a general sense as applying to blood relations and not as applying only to his lineal ascendants and descendants and his collaterals in the male line, and that the boy adopted fell within the prohibited clause and accordingly the adoption was invalid.
Thus these cases do not help the contention of Mr. Pal at all. In the case of AIR 1944 Bom 40 (F), the facts were that in 1921, one Shida-lingangouda Konchangauda adopted the defendant who is the son of his sister Maralshidawa and died on 17th March, 1926. But for the adoption his heirs would have been his nearest agnates Naganagauda, Ujjanagauda and Chanabagappa.
Out of these three, only Naganagauda and Ujjanagauda filed this suit for possession of Shidalingappa's property with mesne profits alleging that the defendant's mother Maralshiddawa had been deserted by her husband Rasappa and that she led an unchaste life and that the defendant was born to her of an adulterous intercourse as a result of which the defendant and his mother were ex-communicated from the Lingayat community and hence he could not be the legally adopted son of Shidlingappa.
The defence was that his mother had not been deserted by her husband Basappa and she was never unchaste and that he was the legitimate son of Basappa by Maralshiddawa and that he and his mother were never ex-communicated. Maralshiddawa had a right to give and that the plaintiffs themselves were present in the adoption and took part in it and hence his adoption was legal and valid. A further plea of limitation was taken by the defence, and at the trial the plea was taken that the plaintiffs are estopped from challenging the validity of the adoption of the defendant by reason of their conduct both at and subsequent to the adoption.
It was proved that the deceased plaintiff 1 attended the adoption ceremony, procured the stamps for the deed of adoption and himself attested it and brought the sub-registrar to the house of Sidlingappa for its registration. It was further proved that ever since the adoption the plaintiffs looked upon the defendant as Shidlingappa's validly adopted son and allowed him to enjoy such a name including his right to have his name entered in the patilki watan register. In the circumstances their Lordships held that the above facts created no estoppel between the parties.
The plaintiff's presence at the adoption or his subsequent acquiescence in the adoption cannot estop him from challenging its validity and relied upon a previous decision by their Court reported in Ramchahdra Narayan v. Murlidhar Yeshwant, 39 Bom LR 599: (AIR 1938 Bom 20) (H). Their Lordships also took into consideration the case in AIR 1925 PC 118 (C), and held that even if it be assumed that the plaintiffs represented that the defendant could be validly given in adoption, there was no representation of a fact to constitute anestoppel under Section 115 of the Evidence Act. Similarly their subsequent conduct in recognising the defendant as Shidlingappa's adopted son for a number of years, though giving rise to an inference that the conditions necessary for an adoption are duly fulfilled, does not operate as an estoppel.
They cannot on that account dispute the fact of the adoption but its legality cannot be established by mere estoppel, and ultimately held that the Lingayats who are governed by Hindu Law as applicable to Shudras a woman in the absence of a custom to the contrary is incompetent to give in adoption her illegitimate son born of adulterous intercourse. In AIR 1944 Nag 62 (E), their Lordships of the Nagpur High Court held that the belief induced in the person who sets up an estoppel under Section 115 must be one in a fact, not in a proposition of law; hence a Hindu widow's conduct in adopting a boy without the authority from her husband and subsequently supporting the adoption does not give rise to an estoppel. Hence these two decisions can be of no avail to the contention of Mr. Pal.
10. Mr. Sen, learned counsel appearing for the respondents submitted that the kind of representation made by plaintiff 1 has been described in detail in paragraph 4 of the plaint. Reading paragraph 4 of the plaint with Ext. A it comes to this that you defendant 1 would remain as our natural born son after having married our widowed daughter-in-law Rekab Baherani. Mr. Sen contended that it was settled at that time that defendant 2 would remarry defendant 1 and in fact the remarriage took place the following day or the day after the execution of the deed of adoption.
Thus, on account of the representation made by plaintiff 1, defendant 2 had undergone a change in status. This certainly amounts to an inequitable consideration. Mr. Sen strongly relied upon a decision of the Privy Council' reported in Dharam Kunwar v. Balwant Singh, 39 Ind App 142: ILR 34 All 398 (1). The facts of that case were that the plaintiff Rani who was the widow of one Raja Kaghubir Singh sued the defendant, her adopted son, for a declaration that she had not adopted him as a son to her deceased husband and that in fact if any ceremony of adoption was performed it was invalid owing to absence of authority from her husband to make such adoption.
She further prayed that a document purporting to be a deed of adoption dated January, 13, 1899, should be declared void as being executed by her without such authority as aforesaid. The learned Subordinate Judge dismissed the suit and the High Court of Allahabad confirmed the decree of the Court of appeal below. Their Lordships of the Privy Council on appeal held :
'Their Lordships, in reviewing the facts of the case, are of opinion that the question may well be decided as one of fact on the Rani's own statements without recourse to the doctrine of estoppel In their view she was speaking the truth in Baldeo Singh's action when she was pleading as to her authority.
XX XX xxSo far as the Rani herself is concerned it would indeed be difficult to have a stronger case of estoppel. She has asserted her authorityin the most solemn manner under her hand and seal, and her conduct both before and after that assertion has been of a like unequivocal character. She could not now be allowed to change her story without grave injustice ensuing to those who have acted in reliance upon her deliberate and repeated representations.
The respondent is now severed from his natural family; he has undergone a change of social status which may or may not be beneficial to him, but which has certainly so altered his mode of life as to make a relapse into his former condition a grievous hardship upon him. He and his friends have been driven to expenses in the maintenance of the privileges with which the Rani purported to endow him. He married on the faith of his adoptive mother's word, and no doubt his creditors who have sold him goods or lent him money in like reliance on her good faith.'
Thus, the learned Judges held that the Rani's argument that the doctrine of estoppel does not apply because the defendant could show no loss or detriment cannot be upheld and they accordingly dismissed the appeal.
11. In the instant case, the plaintiff No. 1 had represented and brought about a change in the status of defendant 2 who was the legal heir on the date on which Ext. A was executed. No doubt, the formal ceremony of remarriage took place the following day or a day thereafter. The cumulative effect of the evidence of P. W. 1 and D. Ws. 1 and 2, comes to this that the factum of remarriage was settled before the actual adoption and that defendant 2 remarried defendant 1 accordingly. The defendants 1 and 2 relied upon the representation made by plaintiff 1 and had acted upto that. Therefore, the plaintiff 1 is estopped by her conduct both before and after the adoption, and she could not now be allowed to change her story without grave injustice ensuing to defendants 1 and 2. Thus the contention of Mr. Pal is bound to fail.
12. Mr. Pal contended that Ext. A cannot be construed as a deed of family settlement, since there was no dispute or any question of antecedent title was involved. Therefore he contended that no case of family arrangement was either raised in the pleadings nor was any evidence led at the trial. He relied upon two decisions of the Privy Council and of the Supreme Court in Ramayya v. Lakshmayya, AIR 1942 PC 54 (J) and Madho Das v. Mukand Ram, AIR 1955 SC 481 (K). Mr. Sen frankly conceded that Ext. A cannot be construed as a deed of family settlement. This does not, however, affect the ultimate decision in this case.
13. Thus, the main contention of Mr. Pal having failed, there is no merit in this appeal and it is accordingly dismissed with costs throughout.
S.P. Mohapatra, J.
14. I agree.