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Durga Das Pan and ors. Vs. Santosh Kumar Pan Minor Represented by Sm. Uma Sundari Ghose and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1944Cal428
AppellantDurga Das Pan and ors.
RespondentSantosh Kumar Pan Minor Represented by Sm. Uma Sundari Ghose and ors.
Cases ReferredSubrao v. Radha
- .....two sons, krishnadhone and durgadas. krishna dhone married twice. by his first wife he had a son kamalakanta and a daughter uma sundari and by his second wife, nivarani, he had a son bimalakanta. uma sundari has been married to benoy krishna ghosh, and santosh, the plaintiff in the suit, is their son. krishnadhone died intestate on 6th october 1931 leaving him surviving his two minor sons kamalakanta and bimalakanta and his father mohendra. in 1982 on his own application mohendra was appointed guardian of the person and property of the said two minor sons of krishnadhone by the district judge of howrah. on 14th august 1933 he as guardian of the said two minors joined in the execution of two documents-ex. 9, a daed of partnership, and ex. 10, a deed of relin quishment. the first.....

1. Mahendra Nath Pan had two sons, Krishnadhone and Durgadas. Krishna dhone married twice. By his first wife he had a son Kamalakanta and a daughter Uma Sundari and by his second wife, Nivarani, he had a son Bimalakanta. Uma Sundari has been married to Benoy Krishna Ghosh, and Santosh, the plaintiff in the suit, is their son. Krishnadhone died intestate on 6th October 1931 leaving him surviving his two minor sons Kamalakanta and Bimalakanta and his father Mohendra. In 1982 on his own application Mohendra was appointed guardian of the person and property of the said two minor sons of Krishnadhone by the District Judge of Howrah. On 14th August 1933 he as guardian of the said two minors joined in the execution of two documents-Ex. 9, a daed of partnership, and Ex. 10, a deed of relin quishment. The first mentioned document was executed by Jotindra Mohan Mondal as first party, by his son Durgadas Pan as second party and by himself as guardian of Kamala Kanta and Bimala Kanta as third party. The second document was executed by Durgadas Pan and was accepted by Mohendra as guardian of his wards.

2. There was a flourishing business in cane carried on under the name and style of James Pyne & Co. at 71/e Olive Street, Calcutta. It was admittedly a partnership business and Jotindra Mohan Mondal was admittedly a partner with 8 annas share. It is the plaintiff's case that the other partner was Krishna, dhone and neither Mohendra nor Durgadas had any interest in that firm, and the latter was only a paid assistant. In Ex. 9, the deed of partnership, it is recited that the said business was a partnership business of Krishna, dhone and Jotindra Mondal and that Krishnadhone and Jotindra had equal shares therein, that after Krishnadhone's death his minor sons, Kamala Kanta and Bimala Kanta, were in possession of 8 annas share, and Jotindra Mohan Mondal of the other 8 annas share of the said business, that thereafter a serious quarrel arose between Durgadas and the said two minor sons of Krishnadhone over the 8 annas share which belonged to Krishnadhone. The deed further recites that those quarrels were settled by Mohendra agreeing to give to Durgadas l/6th share in the business. By the terms of the deed Jotindra Mohan Mondal was to have half share, Kamala Kanta and Bimala Kanta were to have l/8rd share between them and l/6th share was to belong to Durgadas. Exhibit 10 was executed by Durgadas on the same date on which Ex. 9 was executed. By it Durgadas relinquished his claim to comparatively small items of property in favour of the minors Kamala Kanta and Bimala. In consideration thereof Mohendra as their guardian gave l/4th share of many valuable properties which stood in the name of Krishnadhone to Durgadas and the remaining 3/4th share therein was retained by him for the said two minors. All the properties which were the subject-matter of that deed had been acquired in Krishnadhone's name out of the profits of the cane business carried on in the name and style of James Pyne & Co. In 1984 Mohendra died. According to the plaintiff Kamala Kanta adopted him on 3rd July 1935. It is the com. mon case that Kamala Kanta was then just over 17 years of age and was a bachelor. He was in the last stage of tuberculosis and died a bachelor on 13th July 1935, ten days after the alleged adoption. On 18th February 198C Santosh claiming as the adopted son of Kamala Kanta instituted the suit in which this appeal arises. Bimala Kanta, Durgadas, Nivarani (Krishnadhone's surviving widow) and Jotindra Mohan Mandal are defendants 1 to 4 respectively. In the plaint he challenged Exs. 9 and 10 as fraudulent documents and prayed for cancellation thereof. He prayed for a declaration that the business of James Pyne & Co., has been dissolved, alternatively for its dissolution, and for accounts of the business. He also prayed partition of other properties, moveable and immovable-which are mentioned in schedules Kha to Uma of the plaint, on the footing that he and Bimala have each eight annas share therein on the basis that they were Krishnadhone's properties.

3. All the defendants contested the suit. All of them contended that the plaintiff had not been adopted by Kamala Kanta at all and that at the time of the alleged adoption Kamala Kanta had no mental capacity, he having become unconscious some days before the alleged date of adoption and remained so till his death. Alternatively, they pleaded that if the fact of adoption be proved and that Kamala Kanta had at that time mental capacity the adoption was in law invalid, their case being that the plaintiff being a sister's son of Kamala Kanta was ineligible for adoption as the parties who are Sadgopes by caste are not Sudras but Vaisyas. Defendant l and his mother defendant 8 remained neutral with regard to the deeds Exs. 9 and 10, but defendant 2 Durgadas and 4 Jotindra Mohan Mondal made a common cause. Their case was that Mohendra and not Krishna-dhone was the partner of Jotindra Mohan Mondal in the business of James Pyne & Co. On that footing Durgadas claimed 1/4th share therein. The learned Subordinate Judge has held that Kamala Kanta had in fact adopted the plaintiff and that he had at the time full mental capacity, that the business belonged to Krishnadhone and Jotindra Mohan Mondal in equal shares and not to Mohendra and Jotindra Mohan Mondal, that the deeds Bxs. 9 and 10 were fraudulent deeds executed by Mohendra with the reprehensible motive of benefiting his own son, Durgadas, at the expense of his wards, Kamala Kanta and Bimala Kanta. He has set aside those documents. He declared the business carried on under the name of James Pyne & Co. to be dissolved and directed the taking of accounts of that business and distribution of the assets thereof in the proportion of 4 annas to the plaintiff, 4 annas to defendant 1 and 8 annas to defendant 4. He directed partition between plaintiff and defendant 1 in equal shares of all the properties in suit, save and except those described in schedule uma (amended, vide Order of Court dated 22nd May 1914) and some items of immovable property in which persons other than the parties to the suit also had shares. Against the decree two appeals have been filed, one, No. 142 of 1942, by Durgadas and the other no. 208 of 1942 by Bimala Kanta and his mother Nivarani. Both sets of appellants admit before us the correctness of the finding of the learned Subordinate Judge that the plaintiff was in fact adopted by Kamala Kanta and that Kamala Kanta had at the time full mental capacity. They challenged the adoption on two grounds only, namely (i) that the adoption is invalid on the ground that a bachelor is incompetent to adopt, and (ii) that Sadgopes are Vaisyas and so the plaintiff being the sister's son of Kamala Kanta was ineligible.

4. The appellants in Appeal No. 208 of 1942 have not urged any other point. Mr. Sen appearing for the appellant in the other appeal, namely, for Durgadas, states before us that he cannot on the evidence as it stands challenge the finding of the learned Subordinate Judge that Krishnadhone and not Mohendra was the co-partner of Jotindra Mohan Mondal and that he cannot also challenge the finding of the learned Subordinate Judge that the properties in respect of which the learned Subordinate Judge has passed his decree for partition in favour of the plaintiff were Krishnadhone's. He, however, contends that the deeds Exs. 9 and 10 are deeds binding on the minors, as those deeds were executed by Mohendra with the intention of benefiting his wards and not with a fraudulent intention, and they had in fact benefited them. We may at once say that we cannot accept this con tention of the appellant for the following reasons:

(i) that it is a new case set up for the first time before us. His client's case in the lower Court was that business belonged to Mohendra and Jotindra Mohan Mondal, a case which is now abandoned; (ii) on the admission that the business belonged to Krishnadhone and the immovable properties which had been acquired in Krishnadhone's name were Krishnadhone's, there can be no question that Ex. 10 was a fraudulent document. In his application for guardianship Mohendra admitted the properties covered by Ex. 10 to be Kriahnadhone's The recitals in Ex. 10 to the effect that Krish nadhone in whose name those properties stood was his benamdar was a false statement and known to Mohendra to be false; (iii) Exhibit 9 was also a fraudulent document. It was executed on the same date as Ex. 10. The two documents were parts of the same design, which was to deprive the minors, Kamala Kanta and Bimala Kanta of their just rights and at their expense to enrich Durgadas. There were gross dereliction of duty on the part of Mohendra, their certificated guardian. He executed the documents Exs. 9 and 10 on false recitals. There was no dispute or quarrel with Durgadas at or before the execution of those documents or at any time during Mohendra's life-time. That is the admission of both Durga. das and Jotindra in their evidence.

5. The consideration recited in those documents was accordingly false. It is unnecessary for us to discuss the point in greater detail. We agree with the learned Subordinate Judge that the evidence establishes the fact that both the documents, Exs. 9 and 10, are fraudulent documents executed by Mohendra with a view to prefer his own son Durgadas at the expense of his wards. By those documents he dealt with his wards' properties but the learned District Judge who appointed him their guardian was not informed and no sanction was applied for or obtained from him. The decree passed by the learned Subordinate Judge must therefore be maintained unless the adoption of the plaintiff be held to be illegal on the grounds urged before us, which we have noticed above. The Madras, Bombay and Allahabad High Courts have decided that a bachelor can adopt. There is no decision in this Court. In Monemothanauth v. Ouonthanauth ('67) 2 Ind. Jur. (N. S.) 24, a case of simultaneous adoption of two boys by a person having two wives- Phear J. in repelling the contention that a man having two wives could validly adopt two sons, one for each wife, observed that in an adoption the wife does not count, and supported his conclusion by saying that a bachelor could make a good adoption, but Peacock C. J., Trevor and Pundit JJ. who heard the appeal expressed no opinion on the point. Peacock C. J. expressly stated that be concurred with the decree made by the trial Judge without expressing entire concurrence with his reasonings. In this state of things the question whether a bachelor can adopt so far as this Court is concerned, is still an open question.

6. The cases in the Bombay, Allahabad and Madras High Courts in which the question has been considered are Nagappa Udapa v. Subba Sastri ('65) 2 M.H.C.R. 367, Chandrasekharudu v. Bramhanna ('69) 4 M.H.C.R. 270, at p. 278,Tulshiram v. Beharilal ('90) 12 All. 328 (F.B.), at p. 368, Gopal Anant v. Narayan Ganesh ('88) 12 Bom. 329, and Sownthara Pandian v. Periaveeru ('33) 20 A.I.R. 1933 Mad. 550, at p. 778. The view expressed in those decisions rests ultimately on the opinion expressed by Macnaugh-ten (Hindu Law, chap, VI), Strange (Hindu Law, vol. 1, pp. 65, 66,1825 Edn.), Sutherland (Appendix Note 4) and Jagannath (Colebrookes Digest, vol. 8, pages 330-81). They are very high authorities on questions of Hindu law. In ('67) 4 M.I.A. 1 (P. C). where the question was whether a man having an adopted son living could adopt another son the Judi cial Committee of the Privy Council recognized Macnaghten and Sutherland to be very high authorities. The view that a bachelor can adopt is also expressed by Mr. Shyama Charan Sarkar in his Vyavastha Darpan (vol. I, Section 828, pages 284-85). He supports his view by Vyabasthas (Vol. II, page 504, 3rd Edn.). Dr. Jogendra Chandra Bhattacharjya and Mr. Golap Chandra Sastri notice the fact, which Jagannath also does, that the boy adopted by a bachelor would have no maternal side in the adoptive family, with the result that no pindas can be offered to his maternal ancestors by adoption. Jagannath gets over the difficulty by the hypothesis, which in view of the decisions of this Court and of the Judicial Committee of the Privy Council, cannot be now held to be sound, that the natural mother of the boy would in such a case be regarded as his mother even after the adoption, but Mr. Golap Chandra Sastri considers that to be a real difficulty and though not quite definite in his opinion, indicates an inclination against the capacity of such a person to adopt. That is also the inclination of Dr. Bhattacharya but by expressing the view that a bachelor can adopt in exceptional circumstances he has in effect said that celibacy cannot be regarded as an absolute disqualification. West and Buhler and Mayne have expressed opposite opinions. There is no expression of opinion either way on the question in the Dattaka Mimansa or the Dattaka Chandrika. Stanzas 21 and 22 of Section 1 of the former book do not in our judgment suggest by necessary implication that a bachelor cannot adopt. In that part of Section l, Nanda Pandit was considering the question whether a wife can adopt without the consent of her husband. He expressed the view that she could not, for in the matter of filiation, as in the case of secondary sons of other descriptions recognized in the ancient Hindu law, 'the husband is the prime author of the act (of filiation) and the wife is only the instrumental means.' He pointed out that his view on the point was not inconsistent with the view that a husband could adopt without the concurrence of his wife, as 'by reason of superiority of the husband by his mere act of adopting the filiation of the adopted as son of his wife is completed.' Having regard to the question he was discussing existence of a wife must of necessity be assumed and in those stanzas the effect of the adoption by the husband without the wife's consent in relation to her is stated. Prom those stanzas, it does not therefore follow by necessary implication that a bachelor cannot adopt. If, however, that be taken to be the uecessary implication from those stanzas the necessary implication would also be that a man cannot adopt when his wife is dead and when he has not taken another wife, but it is settled law that a widower can adopt and the difficulty of finding the maternal line in the adoptive family is solved by making the dead wife of the adopter the mother of the adopted boy.

7. A son is desired for three reasons: (1) for continuing the lineage (2) for the purpo3e of spiritual welfare and (3) for secular purposes, and an adoption is sanctioned for the purpose of fulfilment of these objects when there is no natural born son. 'A son of any description should anxiously be adopted by a sonless man for the sake of funeral cake, libation of water and exequial rites and for the celebrity of the name'-Manu. A son taken by a bachelor fulfils the first and the third objects. From the secular aspect there cannot be any objection to the validity of such an adoption and as by his own progeny the adopted son would continue the line of his adopter the celebrity of the name of his adoptive father would be maintained. The only question is, can a son taken by a bachelor fulfil the second object-the spiritual object-an object that cannot be ignored, as has been pointed out by the Judicial Committee in 60 A. 242.8 It is necessary therefore to examine the precise scope of the spiritual aspect. It is obligatory for a Hindu to have a son. A ikahman, says Manu, is born a debtor to three classes-to the Rishis, to the Gods and to his ancestors, the first debt is discharged by reading the Sastras, the second by per-forming sacrifices and the third by begetting offsprings. By a son the father saves his soul from falling into the region of torment. Where therefore a person has no aurasa son but creates a substitute by adoption he does the act primarily for his own spiritual welfare. That act would no doubt result in conferring benefits on the adopter's ancestors, for the adopted son would offer to them pindas at the Parvana Sradh but the benefit so conferred is in a sense only consequential.

8. In Monemothanauth v. Ouonthanauth ('67) 2 Ind. Jur. (N. S.) 24, where a husband had adopted a boy without the concurrence of his wife the Right Hon'ble Mr. Pemberton Leigh in delivering the judgment of the Board observed that an adoption is solely made to the husband and for his benefit. All the texts which have been summarised by the Judicial Committee of the Privy Council in Amarendra v. Sanatan Singh of the report bring out the idea of prime benefit to the adopter. On these grounds we do not think a disqualification can be imposed where none is expressly imposed by either the Rishis or by the ancient commentators, on the ground that a son adopted by a bachelor cannot offer pindas to his maternal ancestors in the family of adoption. He would have no maternal ancestors in that family at the time of his adoption as his adopter was an unmarried man at the time. But the time for offering pindas would only arrive on the death of his adoptive father and there would still be a possibility of his having maternal ancestors, in that family, for after his adoption and before his death his adoptive father may well take a wife. That wife would be considered his. mother in the adoptive family and her paternal side would be his maternal ancestors.. The view we are taking is not against the text of Raghunandhan (Sradha Tatwa, p. 8, edition by Pandit Hrishikesh Sastri). The text which is based on Vriddha Jajnavalkya says, that no distinction is to be made between the paternal and maternal side in offering pindas, and if any is made the man so making it would go after his death to the place of greatest torment (Visesa Narak). It proceeds upon the assumption, which is a normal fact, that there is a paternal and a maternal side of the person offering pindas.

9. We accordingly overrule this point and hold that a bachelor can adopt. The next question is whether the parties are Vaisyas. They are Sadgopes by caste. In Risby's book (vol. I, p. 1 i and vol. II, page 212, and 261), also in the Census Report (vol. v, p. 404) they are classed as one of the Navasakhas of the Sudra community. Just before the last census a resolution was passed on 16th February 1936 by the All Bengal Sadgope Conference (ex. e) in which it was asserted that Sadgopes are Vaisyas. In our judgment no importance can be attached to that resolution for it is common experience that just before the decennial census operations, castes whose practices conform to the usages of Sudras make claims to higher status. The real tests in such cases would be to see (a) how they treat themselves (b) how persons of other communities treat them and (c) their own practices 9. Subrao v. Radha ('28) 15 A.I.R. 1928 Bom. 295, Naninal Ghosh, the Secretary of the All Bengal Sadgope Conference, has been examined as a witness for the defendants. He admits that marriages between boys and girls of the same gotra are prevalent in his community and are recognized as valid marriages. D.W.1, Debendra Kour, an old man of that community, admits that Sadgopes of Bengal are known as Sudras and all other communities treat them on that footing. The evidence of D.W.3 Benoy Ghoso is to the same effect. There is also one sided evidence that mourning is observed for 30 days. On this evidence we hold in agreement with the learned Subordinate Judge that Kamala Kanta was a Sudra. The adop tion of the plaintiff is a valid one and he is entitled to all that belonged to his adoptive father, Kamala Kanta. The result is that both the appeals are dismissed but without costs.

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