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Bijoy Krishna Karmakar Vs. Ranjit Lal Karmakar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal694
AppellantBijoy Krishna Karmakar
RespondentRanjit Lal Karmakar
Cases ReferredAkhoy Chunder Bagchi v. Kalapahar Haji
Excerpt:
hindu law - adoption--prior right of adoption as between elder and younger widows--anumatipatra, construction of--simultaneous or successive adoption. - .....for the rule which he suggests applies, namely, that the first adoption should prevail, whichever widow adopts, a rule the demerits of which i need not discuss.3. the result is, that i hold that, apart from the terms of the anumatipatra, the junior widow had no right to adopt before the senior widow had refused to do so.4. as to the terms of the anumatipatra, a consideration of their contents only makes the plaintiff's case stronger. it is to be observed that in the bombay cases there was no specific authority to adopt. in bengal, of course, there must be such an authority, and in this case it is the anumdtipatra that i have quoted. it is suggested by the defendant that that instrument gives a power to the two widows to adopt simultaneously, and that, as i understand the argument, the.....
Judgment:

Stephen, J.

1. The question I have to decide in this case is which of two adoptions is legal. The facts are simple and, if I accept all the evidence that has been given before me, are as follows: - One Shib Krishna Karmakar, a Hindu governed by the Bengal School of Hindu Law, and a Sudra by caste, died on the 29th November, 1903, leaving two widows, Biraja Sundari, the senior and Shashibala Dasee, the junior. The day before his death he executed an anumatipatra, the translation of which is as follows: 'Anumatipatra for taking adopted son is executed to the following effect by Sri Shib Krishna Karmakar, father's name the late Ramkristo Karmakar, by occupation gold and silversmith, inhabitant of Sabhar, in favour of the first wife Sreemutty Biraja Sundari Dasee and the second wife Shashibala Dasee. I am now ailing, having been attacked with cholera. There is no knowing what may happen to the transient body. I have no son born of my loin, although, in the hope of perpetuating the generation, I, have married two wives successively, but up till now no son has been born. Consequently by this anumatipatra I am giving permission in writing that when I shall be no more, each of my two wives shall be at liberty to act according to their own religious tenets by adopting three sons successively that is one after another. It is also permitted that each of my wives shall live in my ancestral dwelling-house with her adopted son. On the other hand, if she goes to live in another place with her adopted son, she shall not have any right to the moveable and immoveable properties to be left by me.' Acting under the power conferred on her by this instrument, Shashibala, the younger widow, adopted the defendant on the 13th April, 1905. Biraja Sundari, the elder widow, subsequently, that is, on the 9th March, 1908, adopted the plaintiff, for whom she is acting as next friend in the present suit. This suit is brought to have it declared that the adoption of the defendant is void and inoperative, and that the plaintiff has been validly adopted. The plaintiff has satisfactorily proved that his adoption was performed in a valid and regular manner, and it is not sought to impugn its validity on any ground except that the defendant had been previously adopted, a point which it is admitted is conclusive if it is substantiated. The plaintiff does not admit that the earlier adoption was satisfactorily proved alleging that the circumstances of the adoption are so suspicious that I ought not to accept such evidence as there is of the identity of the adopting woman with Shashibala. He also argues that supposing the earlier adoption was regular in point of form, the younger widow had no power to adopt till the elder widow had refused to adopt. The plaintiff bases his legal argument on the decision in Rakhmdbai v. Radhabai (1868) 5 Bom. H.C. (App.) 181. In that case the deceased husband gave no power to adopt, but by the law prevalent in Bombay it was held that a widow had a right to adopt, and the senior widow had a right to adopt without the consent of the junior. This case was followed in Amava v. Mahadgauda (1896) I.L.R. 22 Bom. 416, and was approved of in Mondakini Dasi v. Adinath Dey (1890) I.L.R. 18 Calc. 69, where it was held that when a power was given to two widows to adopt a particular person, the younger widow had power to adopt on the refusal of the elder to do so.

2. These cases do not, it will be observed, completely cover the present, but they recognise the prior claims of the senior widow in a way that suggests that where two widows have a power to adopt, the general rule is that the senior widow has a right to exercise her power of adoption before the junior one does so. In the text books it is laid down that the junior widow cannot adopt without the consent of the senior widow, unless the latter is leading an irregular life: see Mayne para. 118, and West and Buchler, Bk. iii, Section iii, B. 3, 16, p. 976. Counsel for the defendant does not deny that the law is so, as far as Bombay is concerned, but suggests that the law is not the same in Bengal. This contention seems to me to be baseless, particularly in a case like the present, where there seems to be no difference {in the classes of the husband and the two widows, for the law laid down in Rakhmabai v. Radhabai (1868) Bom. H.C. (App.) 181 depends ultimately on the text quoted from Vishnu in Article XLIX of Book IV of Colebrook's Digest, and perhaps on that quoted from Dackshaiyana, Article LI, and both of these writers are, I understand, of as much authority in Bengal as they are in Bombay. In addition to this, counsel for the defendant has not attempted to show me any authority' for the rule which he suggests applies, namely, that the first adoption should prevail, whichever widow adopts, a rule the demerits of which I need not discuss.

3. The result is, that I hold that, apart from the terms of the anumatipatra, the junior widow had no right to adopt before the senior widow had refused to do so.

4. As to the terms of the anumatipatra, a consideration of their contents only makes the plaintiff's case stronger. It is to be observed that in the Bombay cases there was no specific authority to adopt. In Bengal, of course, there must be such an authority, and in this case it is the anumdtipatra that I have quoted. It is suggested by the defendant that that instrument gives a power to the two widows to adopt simultaneously, and that, as I understand the argument, the whole deed is therefore bad, as simultaneous adoptions are illegal. The proper construction of the document seems to me, how ever, to be quite contrary to this view. According to the decisions in Akhoy Chunder Bagchi v. Kalapahar Haji (1885) I.L.R. 12 Calc. 406 : L.R. 12 I.A. 198, which is also the authority for saying that simultaneous adoptions are illegal, as also by the general rules of construction, I must read the anumatipatra as enjoining something in accordance with the law if I can. If it leaves the power to adopt to be decided by the question of which widow adopts first, it may sanction a simultaneous adoption. I therefore hold that it did not have this effect; but left the power of adoption to be exercised according to the general law, and enforced this by indicating which was the senior and which the junior widow: that its effect was to give a power of adoption to the two widows successively, and that under the terms used the junior widow had no power to adopt till the senior widow had exhausted her right or refused to use it. The terms of the document will fully bear this construction; and it probably accords with the testator's intention. The plaintiff must accordingly succeed on the point of law, and it is not necessary that I should decide the question of fact. I may say, however, that, while on Mr. J.C. Butt's evidence there can be no doubt that a ceremony of adoption was gone through in relation to the defendant, its circumstances were suspicious. It was performed in Calcutta, without the presence of any members of Shibkrishna's family, and seems never to have produced any practical consequences. A document of some kind was signed, but is not produced. Mr. Dutt is the only witness who speaks to the ceremony whose word I can trust, and he was present practically in his professional capacity. His identification of Shashibala as being the person who took the child in adoption is weak. These matters are all suspicious, and had I to decide the case on the question of fact, they would have to be carefully considered. As it is, however, I need not express any opinion on this part of the case.

5. I find for the plaintiff, and give judgment for him with costs on Scale No. 2.


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