Lawrence H. Jenkins, K.C.I.E. C.J.
1. The plaintiff, who is the respondent before us, has brought this suit against the defendant to have it declared that the alleged adoption of the defendant is void and inoperative in law. The case was heard before Mr. Justice Stephen, who has pronounced a decree in the plaintiffs favour. From that decree the present appeal has been preferred.
2. The points urged on behalf of the defendant are two--first, he says that the document of authority under which the adoption both of the plaintiff and himself purports to have been made is bad; and, secondly, that if it is good, then, his adoption, and not the plaintiff's, is valid, although made by the younger of the two widows of the deceased.
3. The facts are briefly these: one Shib Krishna Karmakar, a Hindu governed by the Bengal school of Hindu Law, died on the 29th of November 1903, leaving two widows, Biraja Sundari Dassi and Shasbibala Dassi, and no son. The day before his death he executed this authority to adopt in favour of his two widows. The junior widow, Sreemutty Shashibala Dassi, purports to have adopted the defendant on the 13th of April 1905, without even seeking the elder widow's consent. The elder widow purports to have adopted the plaintiff on the 9th of March 1908; and it is in these circumstances that the contentions to which I have referred arise. The argument by which the defendant would annihilate his own position by contending that the deed of the power of adoption is inoperative is, ia my opinion, one that cannot succeed. The document was executed under circumstances which may account for a certain degree of vagueness and uncertainty in its terms, and we are entitled to apply to it the canon of construction which has been laid down by their Lordships of the Privy Council in Akhoy Chunder Bagchi v. Kalapahar Haji (1885) I.L.R. 12 Calc. 406 : L.R. 12 I.A. 198, 202 where it was said in construing a document then before their Lordships, that they would consider that the person giving the authority intended his widows to do that which the law allowed and not to do something which was, if not absolutely illegal, very unusual and not practised amongst Hindus. It appears to me that it is a fair and reasonable interpretation to put on this document to say that it did not contemplate simultaneous adoption by the widows, but successive adoptions in accordance with the rules of law as now established and as established at the time when this document came into existence.
4. Treating the document as a valid document, was the junior widow entitled to adopt without the consent of the senior widow or without even asking for that consent? Now, it is well established in the Presidency of Bombay that, as between co-widows, it is the senior, that is to say, she, whose marriage was earlier, that has the preferential right to adopt in circumstances like the present. Those decisions rest upon fundamental principles and on views of Hindu life and economy which appears to me to be fully applicable here. Any other view would merely lead to an unseemly scramble for the purpose of performing this solemn act. In my opinion, the decision of Mr. Justice Stephen is correct, and we must dismiss the appeal with costs. The reserved costs will be costs in the appeal.
5. I agree.