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Kiranbala Debi Vs. Kali Charan Singha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.29
AppellantKiranbala Debi
RespondentKali Charan Singha and ors.
Excerpt:
property, suit for recovery of - waiver--estoppel by conduct--adoption, validity of. - .....belonging to one shibaram singh. shibaram died on the 9th of august 1836 leaving a widow, chhaya kumari, aged about 14 years and a daughter, foodan kumari by a former wife. foodan was many years older than the widow. she was married to chait lal singh and had two sons, ram lal and behari lal. on the death of shibaram his widow succeeded to his properties. by a subsequent arrangement with foodan kumari and chait lal singh, chhaya kumari was left in possession of 8-annas share of the property, except one mehal which was made over to ram lal. the other 8-annas share in the property was made over to foodan kumari and chait lal singh.2. the present suit relates to the 8-annas share of the property retained by chhaya kumari. the defendants nos. 2 to 6 are in possession of the property.....
Judgment:

1. This is an appeal by the plaintiff against the judgment of the learned Subordinate Judge of Berhampore dismissing her suit. The plaintiff brought her suit to recover certain properties that represent one-half of the estate originally belonging to one Shibaram Singh. Shibaram died on the 9th of August 1836 leaving a widow, Chhaya Kumari, aged about 14 years and a daughter, Foodan Kumari by a former wife. Foodan was many years older than the widow. She was married to Chait Lal Singh and had two sons, Ram Lal and Behari Lal. On the death of Shibaram his widow succeeded to his properties. By a subsequent arrangement with Foodan Kumari and Chait Lal Singh, Chhaya Kumari was left in possession of 8-annas share of the property, except one mehal which was made over to Ram Lal. The other 8-annas share in the property was made over to Foodan Kumari and Chait Lal Singh.

2. The present suit relates to the 8-annas share of the property retained by Chhaya Kumari. The defendants Nos. 2 to 6 are in possession of the property No. 11 in schedule ha to the plaint under a purchase from Chhaya Kumari. The rest of the properties sued for are in the possession of the defendant No. 1. He claims them as heir of his father Nilkanta who, it is alleged, was adopted by Chhaya Kumari. Nilkanta was a son of Copal Sundari, a daughter of Foodan Kumari. The plaintiff is the widow of Shayama Charan Singh who was the so not Annapurna, another daughter of Foodan. It is not denied that if no son had been adopted to Siva Ram, the present plaintiff in the events that have happened would be entitled to the estate of Shibaram.

3. The plaintiff questions the alleged adoption of Nilkanta on the following grounds, first, that there was no such adoption in fact, secondly, even if there were, Shibaram gave no authority to Chhaya Kumari to adopt and, thirdly, the adoption would be void even if authority had been given to Chhaya Kumari, as Nilkanta's natural mother could not have married Shibaram if she had been a maiden.

4. The learned Judge in a very comprehensive judgment has dealt with all the matters raised in the suit. He has held, first, that the adoption was valid and, secondly, that the plaintiff is estopped from questioning the adoption of Nilkanta. A large part of the argument has been addressed to us as to whether or not the adoption of Nilkanta was valid.

5. In the circumstances of the present case we need not enter into this question. For we are of opinion that the plaintiff is estopped from questioning the adoption of Nilkanta. The facts relating to such estoppel may be briefly stated: In 1878 the plaintiff's late husband brought a suit against Chhaya Kumari and Nilkanta to set aside the adoption of Nilkanta. The suit was decreed in the primary Court, but on appeal to this Court the judgment was set aside, the question of the adoption being left open until the death of Chhaya Kumari. The plaintiff's husband was, therefore, fully aware of his rights. At the end of the year 1895 an application was made to the District Judge under Section 31 of Act VIII of 1890 for leave to raise certain moneys to pay off debts due from the defendant No. 1, then a minor. The first proposal was to raise the money by mortgage, but it was subsequently altered to a proposal to grant a putni of a certain portion of the estate. The proposal dragged on for a considerable time. On the application coming on the 2nd of March 1898, the District Judge granted time to enable the husband of the plaintiff to come in as he might contest the validity of the adoption of the father of the defendant No. 1.

6. On the 10th of March 1898 the plaintiff's husband appeared before the District Judge and expressed his desire to take the putni lease at a premium pf Rs. 10,000. The learned Judge sanctioned the proposal, subject to a condition that the plaintiff's husband together with a surety should give security to pay the expenses of any suit (up to Rs. 2,000) which might be brought by any other reversioner to question the title of the defendant No, 1. In pursuance of this order the putni lease (Exhibit D) and the security bond (Exhibit E) were executed. This seems to us to be a clear case of waiver by the husband of the plaintiff. With full knowledge of his rights lie obtained the putni (Exhibit D) which recognises the validity of the adoption of Nilkanta and the plaintiff, his widow, is still in possession of the property comprised in the putni. That being so, it is now too late for the plaintiff, who claims through her husband, to question the adoption.

7. The doctrine of estoppel by conduct has been applied in. many cases in India to invalid adoptions. The facts in this case raise a clear case of estoppel against the plaintiff. To hold otherwise would be lamentable. The defendant No. 1 has married the daughter of the plaintiff's late husband. If the plaintiff can question the adoption of Nilkanta, then the marriage of the defendant No. 1 will he invalid and the defendant No. 1 will be left as belonging to no family and with a wife to whom he is not legally married. We agree with the learned Judge in the Court below that the facts proved establish a clear case of estoppel against the plaintiff. Whether be adoption of Nilkanta be or be not valid the plaintiff cannot succeed in this suit. The appeal, therefore, fails and must be dismissed with costs. There will be two sets of costs, one to the defendant No. 1 respondent and the other to the defendants Nos. 1 to 6 respondents.


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