1. This appeal arises out of a suit forestablishment of title, recovery of possession, mesneprofits and accounts.
2. One Raj Chandra Saha of Brahmanberiah died on the 19th Chait, 1308 (2-4-1902) leaving him surving his son Kailash Chandra Saha and a widow Mahamaya. Kailash married one Radharani and died on the 5th Poush, 1310 (December, 1903). Radharani died on the 12th Aswin, 1319, that is, the 28th of September, 1912.
3. By his will dated 9th Poush, 1307 (24th December, 1900), Raj Chandra dedicated his 4 annas share in a certain brahmottar mouza to the service of certain deities, and directed that' Mahamaya should be shebait and that on her death the son Kailash should succeed her in that office. His other immoveable properties he divided between Kailash and Mahamaya, bequeathing 12 annas to Kailash, and 4 annas to Mahamaya for her life. He next authorised Mahamaya to adopt three sons in succession, whether in the lifetime of Kailash or after his death, and provided that on Mahamaya's death, the adopted son, if any, and failing any adopted son, Kailash should succeed to her 4annas share. His moveables, it may be mentioned,he bequeathed to his son Kailash.,
4. After the death of Kailash, acting in pursuance of the authority thus given to her, Mahamaya adopted one Ramesh Chandra Saha who is the plaintiff in the suit and the respondent in this appeal. In the month of Bhadra, 1319, about a month before her death Radharani adopted a boy, Kumud Bandhu Shaha, who was the defendant No. 1 in the suit and is now the appellant before us. Defendants Nos. 2, 3 and 4 are brothers of Radharani. In the suit the plaintiff claims the estate of Kailash.
5. It was part of the case for the plaintiff that at the time of his father Raj Chandra's death, Kailash was suffering from leprosy of a virulent or sanious and incurable type and so was disqualified from inheriting or by the necessary sacrifices, from conferring upon his ancestors the spiritual benefit required or expected of the son of a Hindu father. It was further his case that Kailash had died without conferring upon his wife, Radharani, any power to adopt.
6. In the trial Court, the learned Subordinate Judge has found that Radharani had received no authority from her husband to make an adoption and that her formal adoption of the defendant appellant, Kumud Bandhu, was invalid. At the hearing of this appeal the learned pleader appearing for the appellant did not find himself in a position to place before us the evidence bearing on this question, and we may say, therefore, that the Subordinate Judge's finding as to the appellant's adoption goes unchallenged.
7. But the plaintiff-respondent can succeed only on proof of his own title, and the contentions of the appellant have thus been two, namely, first, that on the evidence it should be held that at the time of his father's death, Kailash in fact was not disqualified from succeeding or from the performance of religious rites; and, secondly, that the authority to make an adoption given by Raj Chandra to Mahamaya was invalid, or, in the presence of Kailash's widow could not be exercised after the death of Kailash.
8. At a later stage of the hearing, the learned pleader for the appellant further contended that the plaintiff was precluded from questioning the validity of appellant's adoption by reason of a compromise or settlement entered into by the two widows on the 26th Assar, 1315 (July, 1908).
9. We have been taken over the whole of the evidence bearing on the first contention and we, are of opinion that it is not sufficient to show that at the time of his father's death Kailash was suffering from leprosy of the sanious, virulent and incurable type. The Subordinate Judge relies on the evidence of 4 witnesses, all pleaders of Brahmanbariah, namely, plaintiff's witnesses No. 7, Raj Kumar Ghose, No. 8, Jagat Chandra Nandi, No. 12, Dinabandhu Dutta and No. 21, Hira Lal Ray. Now the last of these, Hira Lal Ray, says that he saw sores on Kailash's finger and on the tip of his nose, but did so only once and that in the year 1903 that is sometime after the death of Raj Chandra. Dinabandhu Dutta says that Kailash was afflicted with leprosy and that for the 9 or 10 years preceding his death he had seen sores on his fingers. He says nothing of the nose and does not describe the sores. Jagat Chandra Nandi says that for the 5 or 6 years preceding the death of Kailash he had seen 'scabs and swellings' on Kailash's face and that 'he took these to be symptoms of leprosy'. Similarly, Raj Kumar Ghose says that (apparently from the year 1891) he had seen something like ringworm on the face of Kailash and parts of the face swollen. He, therefore, thought, but not being a medical man, could, not positively say that Kailtsh was suffering from leprosy.
10. On the 25th November, 1902, letters of administration to the estate of Raj Chandra with copy of the will annexed were granted to Kailash. After the death of Kailash, on the 6th of May, 1904, Radharani applied for letters of administration to the estate of her husband, and she also applied for letters of administration de bonis non to the estate of Raj Chandra, while on the 22nd of June Mahamaya applied for the revocation of the letters granted to the deceased. Kailash. The proceedings arising out of the two last mentioned applications were contentious, and in the course of his judgment (Ex. 52) the District Judge referring apparently to the time when Raj Chandra's will was executed, says 'Kailash was attacked with leprosy', Similarly in the appeal from his order in this judgment (Ex. 42) a Divisional Bench of this Court made the following observations:--'Raj Chandra had a son who was afflicted with incurable leprosy'--again 'the testator made such provisions notwithstanding that his son was afflicted with incurable leprosy... It is curious that notwithstanding that Kailash was afflicted with leprosy he was allowed to perform the monthly sradh ceremony as if not so (afflicted).'
11. In the present case the learned Subordinate Judge has admitted these two judgments in evidence and has relied on the observations just set out. He has similarly admitted, and relied upon the evidence given in the said proceedings by a Government Hospital Assistant, one Trailakhya Nath Sen, who is now dead. Now though the factum of Kailash's leprosy may have had some bearing on the question, whether the will made by Raj Chandra was a natural and probable will, yet the question whether Kailash suffered from leprosy and whether such leprosy was of the disqualifying type was not a question substantially at issue in the former proceedings, and in our opinion neither the judgment nor the deposition of Trailakhya Nath Sen should have been admitted. Even if admissible, it has not been and cannot be contended that the question is res judicata, and the evidence of Trailakhya Nath Sen does not appear to carry the case much beyond the point where it is left by the four witnesses first referred to. No doubt, in examination-in-chief, he says 'I treated him (i.e., Kailash). His general disease was leprosy. There were swollen marks, on his face, his ringers and nails were all worn off. There were marks, leprosy marks, on his face. In this condition I have found him since I came here (4th August, 1897) till his death. This leprosy cannot be cured, i.e., is incurable.'
12. But in cross examination, he tones this down.He says 'There was an ulcer under his foot. Afterlong treatment it got cured but shortly after theulcer extended again. When I first saw Kailash thenails on his hands were uneven... Kailashperformed the (Raj Chandra's) sradh. Whether or nothe had his nails at the time of the sradh [ cannot say.From what I found at the beginning, his nails wouldappear to have been uneven.'
13. Other witnesses on both sides speak of Kailash's leprosy or other disease, but these witnesses have not been believed by the Subordinate Judge. We have, however, been taken over the whole of the evidence given by these witnesses, and as we agree with the Subordinate Judge in his estimate of its value, we need not here discuss it further.
14. In support of his conclusions based on the oral evidence, the Subordinate Judge refers to the authority given to Mahamaya to adopt even in the life-time of
Kailash, and to the fact that having regularly attended Municipal meetings from February, 1891, he ceased to be a Commissioner in May, 1900. Against the provision in the will for adoption in the life-time of Kailash, may be set his appointment as shebait in succession to Mahamaya, and the provision may have been made in ignorance of the law. In any case, we further think that the circumstances in which the Subordinate Judge finds corroboration of his conclusions are outweighed by the fact that Kailash did in fact publicly perform his father's sradh without objection taken and that to explain this the, plaintiff's witnesses are driven to saying that Mahamaya also performed the sradh.
15. In our opinion, it has not been shown that at the time of Raj Chandra's death, Kailash was suffering from leprosy in a virulent and incurable or sanious form.
16. We now come to Mahamaya's authority to adopt.
17. Here in the first place it is faintly suggested that inasmuch as she was given power to adopt even in the life-time of her son, the whole power to adopt was vitiated. We are unable to accede to that contention. Authority to adopt in the event of the death of Kailash is expressly given, and remains unaffected by the power rightly or wrongly given to adopt in his lifetime.
18. A more difficult question is the question whether when Kailash died leaving a widow, Radharani, the power given by Raj Chandra, the previous holder, could still be exercised.
19. Now the facts as we have found them are these:--Kailash was a qualified son: When he died he was some 50 years of age: He had thus attained full legal capacity: He has left no issue, and though he has left a widow, he has given her no authority to adopt.
20. Thus the spiritual benefits desired by Raj Chandra can no longer be obtained through Kailash 'or his line.
21. In support of the appellant's contention that on the death of Kailash, leaving a widow him surviving, the power given by the father of Kailash to his, the father's, widow came to an end, we have been referred to the well-known case of Bfioobun Moyee Debia v. Ram Kislhore Acharj Choivdhry (1865) 10 Moo. I.A. 279 ; 3 W.R.P.C. 15 and to the subsequent cases Puddo Kumaree Debee v. Juggut Kishore Acharjee (1879) I.L.R. 5 Calc. 615, Thayammal v. Venkatctrama (1887) I.L.R. 10 Mad. 205; L.R. 14 I.A. 67, Tarachurn Chatterji v. Sureshchunder Mukerji (1889) I.L.R. 17 Calc. 122 ; L.R. 16 I.A. 166, Padma Kumari Debi Chowdhrani v. Court of Wards (1881) I.L.R. 8 Calc. 302 ; L.R. 8 I.A. 229, Amulya Charan Seal v. Kali Das Sen (1905) I.L.R. 32 Calc. 861, Manikyamala Bose v. Nanda Kumar Bose (1906) I.L.R. 33 Calc. 1306, and the latest case in the Privy Council Madctna Mohana Ranga Bheema Deo v. Parushotthama Ranga Bheema Deo (1918) I.L.R. 41 Mad. 855. But in all these cases the principle laid down appears to be that an adoption which would have the effect of divesting an estate already vested in a person other than the adopting mother, was not permissible and their Lordships of the Judicial Committee expressly refrained from deciding or expressing any opinion on the question that has here arisen.
22. The object of adoption among Hindus is not merely the due perpetuation of lineage, but is also to secure for the adoptive father and his ancestors the spiritual: blessings which only an heir male can confer. Here, on the facts found, Raj Chandra's heir cannot be continued and spiritual blessings cannot be obtained through Kailash. Moreover, the spiritual purposes of a son are not exhausted, in the person of a son who, though he attains maturity, yet dies without issue. In Hindu Law, the only express prohibition of adoption is in the case of a man who has either son, grandson, or great-grandson living. The present case is not within the prohibition of the texts and inasmuch as the adoption by Mahamaya did not have the effect of divesting Kailash's widow of the estate then vested in her, it does not appear to contravene the rule laid down in the cases we have cited. We have not been able to find any direct authority on the point we have to decide, but after consideration we are of opinion that on the general principles of Hindu Law the adoption now in question should be held to be valid.
23. We now come to the third contention. On the 26th Assar, 1315, to put an end to litigation and to settle the disputes that had arisen between them, the two widows Mahamaya and Radharani entered into the arrangement evidenced by Ex. C. In this it is provided, inter alia, that Radharani should not be competent to take objection to the adoption made by Mahamaya and that similarly Mahamaya should not be competent to raise any objection to the adoption to be made by Radharani 'according to the permission of her husband Kailash.' In this clause each widow apparently speaks for herself alone, but in the opening recital it is provided that their heirs and representatives should also be bound by the settlement.
24. The compromise was effected while a suit valued at about Rs. 46,000, brought by Radharani against Mahamaya, in the year 1906 was pending. Plaintiff who had been adopted on the 9th of Falgoon, 1310, was a party to the suit, but was no party to the compromise and as against him the suit was in fact dismissed. It is, however, urged, that it is binding upon him, as the settlement, of a family dispute made in good faith and also because he has accepted benefits under it.
25. The Subordinate Judge has given sufficient reasons,which we need, not here repeat, for holding thatthe settlement which defeats the provisions of RajChandra's will was entered into by Mahamaya, netfor the benefit of the estate, but for her own personaladvantage.
26. It has no doubt been shown that while plaintiff was still a minor and represented by one or others of his two brothers by blood, he obtained decrees for some of the debts covered by the compromise. In two instances [vide W. (17) and W. (19)] in suits brought while plaintiff was still a minor, decrees were obtained some four months after he had attained his age of 18. His evidence shows that he was then ignorant of the true state of things, and some months later we find, him (vide Ex. 28) withdrawing from or not proceeding with an appeal against a decree dismissing a claim brought during his minority and based on the deed of compromise. He repudiated the settlement within a reasonable time after his attainment of majority, and in fact he brought the present suit within the year. We hold that the plaintiff is not bound by the arrangement entered into by the widows on the, 26th Assar, 1315.
27. In the result this appeal is dismissed with costs.
28. Three points were urged on this appeal. First, it is said that Kailash having succeeded under the will to 12 annas of his father's estate and having left an heir (his widow Radharani), Mahamaya could not exercise the power to adopt given her by the will. Secondly, it is said that the Subordinate Judge was wrong in holding, as he has, that Kailashwas suffering from leprosy of an incurable nature, galita hushtha. Thirdly, it is said that the plaintiffis debarred from asserting his present claim by reasonof a compromise by way of family arrangement arrived at on the 10th July, 1908. between Mahamaya and Radharani whereby the validity of both adoptions was recognised, which compromise it is said has been acted on and adopted by the plaintiff who has taken benefits there under.
29. I will deal with the third point first. The Subordinate Judge has come to the conclusion for the reasons stated in his judgment on the fifth issue that the settlement was not a bond fide family settlement, but was for the present advantage of Mahamaya against whom a claim for money misappropriated to the extent of Rs. 33,873 had been made, and he also finds, for reasons which he has stated, that the plaintiff never ratified or adopted the compromise. He has dealt with the whole matter at considerable length and in great detail and it is sufficient to say that I agree with his conclusions, and I am also in substantial agreement with the reasoning by which he has arrived at his conclusions, and under these circumstances it is not necessary to deal with this part of the case in any detail. I feel some doubt whether for the purposes of this appeal it is necessary for us to decide whether or not Kailash was suffering from galita kushtha and incapable of giving a power to his widow to adopt. The question of the validity of Radharani's adoption was decided adversely to the appellant by the learned Subordinate Judge upon the facts and the appellant has not ventured before us to question the correctness of that decision and must therefore be taken to have abandoned it. But the nature of Kailash's illness may have some bearing upon the validity of the power of adoption given by Raj Chandra to Mahamaya in his will and I think therefore that 1 should express my opinion on the point. I have had an opportunity of seeing the judgment of my learned brother and it will be sufficient for me to say that I agree with the conclusion at which he has arrived, namely, that it: is not satisfactorily established that Kailash was suffering from leprosy of the kind, called galita kushtha with the consequences which would result, therefrom. It is of course curious that Raj Chandra should empower his wife to adopt in Kailash's life time, but as against this you have his appointment as shebait by the will after the death, of Mahamaya and the fact that he did perform his father's sradh which is quite inconsistent with his suffering from galita kushtha.
30. I now come to deal with the first point. Now whether Kailash was suffering from galita kushtha or not, I think that the power which Raj Chandra gave to his widow by his will to adopt upon Kailash's death was a valid power and I do not think that the fact that the testator coupled with it a power to adopt during Kailash's life-time (which was clearly bad if Kailash was not suffering from galita kushtha) vitiates this power. It is true that the testator does not make the exercise of the power contingent upon Kailash's death without male issue, but I do not think that this vitiates the power, if at the time it was exercised, this state of things in fact existed as it unquestionably did. The power then I think was in its inception a valid power and the only question which now arises for our decision is whether under the circumstances of this case Mahamaya was entitled to exercise the power conferred upon her by her husband's will.
31. On behalf of the appellant it is contended that she could not, and it is said that Kailash having died leaving an heir, his widow, in whom his estate vested, the power could no longer be exercised and we were referred as authorities for this proposition to Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 Moo. I.A. 279 ; 3 W.R.P.C. 15, Ramkrishna Ramchandra v. Shamrao Jeshwant (1902) I.L.R. 26 Bom. 526, Amulya Gharan Seal v. Kali Das Sen (1905) I.L.R. 32 Cale. 861, Manikyamala Eose v. Nanda Kumar Bose (1906) I.L.R. 33 Calc. 1306 and Madana Mohana Ranga Bheema Deo v. Puriishotthama Ranga Bheema Deo (1918) I.L.R. 41 Mad. 855.
32. On behalf of the respondent it is urged that these cases are not authorities which cover the question in the present case, that Kailash took by devise and not by descent and only 12 annas of Raj Chandra's estate, and that as upon the deaths of Raj Chandra and Kailash 4 annas of the estate remained in Mahamaya the power to adopt conferred upon her by Raj Chandra's will was unaffected and was, as the Subordinate Judge has held, validly exercised. It is said that this point was left open in Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 Moo. I.A. 279 ; 3 W.R.P.C. 15 and is not covered by authority.
33. I think that the contention of the respondent that the point is not covered by authority is correct. Lord Kingsdown who delivered the judgment of the Board in Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 Moo. I.A. 279 ; 3 W.R.P.C. 15 states at page 311 'Whether under his testamentary power of disposition of Gour Kishore could have restricted the interest of Bhowani Kishore in his estate to a life interest or could have limited it over (if his son left no issue male or such issue male failed) to an adopted son of his own, it is not necessary to consider, it is sufficient to say that he has neither done or attempted to do this. And again at page 312 he, says 'We have already said that we express no opinion as to the power of Gour Kishore to have made the disposition now insisted on by the appellant by devise of his estate.'
34. The proposition in the present case is not of course exactly on all fours with that propounded by Lord Kingsdown. In the present case the question is whether a man can by a devise of a portion of his estate to his wife for life with remainder to her adopted son, in the event of her adopting, prevent the operation of the rule in Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 Moo. I.A. 279 ; 3 W.R.P.C. 15, namely that if a Hindu dies leaving a widow and a son and that son dies leaving no son, but his widow as his heir (he having inherited his father's estate) the power of the former's widow is extinguished and can never afterwards be revived. Having regard to the way in which this case was argued on behalf of the appellant I am, I think, as already stated, bound to assume that the Subordinate Judge has correctly decided that Kailasli's widow was not given any power to adopt by her husband. On behalf of the respondent it was urged that the basis of the rule was that to hold otherwise involved a divesting of the estate of the son's heir and that where, as here, the effect of adoption does not operate to divest an estate there is no extinguishment of the power. I think that the respondent's contention as to the basis of the rule is correct--that is to say that it depends upon the fact that to hold otherwise would involve a divesting of an estate vested in the heir. I think that where, as here, adoption involves no divesting of the heir's estate that the power has not been extinguished and that it is capable of being exercised. The fact that Kailash survived his father and performed the sradh does not exhaust the spiritual benefit which Raj Chandra could derive from a son and I see therefore no reason why in the events which have happened, the power was not capable of being exercised by Raj Chalidra's widow after Kailash's death without male issue. It is true that the claim in the present case is to the 12 annas which passed to Radharani, his widow, upon his death, but it is a claim put forward not to divest Radharani but a claim to the estate after her death, that is to say, it involves no divesting but only an ascertainment of Kailash's rightful heir after the death of Radharani. In so deciding I express no opinion as to the validity of the respondent's adoption if Kailash had by will or otherwise empowered his widow to adopt and I assume for the purpose of this judgment that no such power was given her.
35. In the result the appeal fails and must be dismissed with costs.