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Gyanendro Chunder Lahiri Vs. Kalla Pahar Hajee and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal50
AppellantGyanendro Chunder Lahiri
RespondentKalla Pahar Hajee and anr.
Cases ReferredS.M. Money Dassee v. S.M. Prosonomoye Dassee
Excerpt:
hindu law - adoption--simultaneous adoption. - .....a future world, but the context shows that the learned judge really meant that the exorcise of the power of adoption must be limited by the necessity of the case.8. applying that rule, it follows that, as the adoption of one son alone is actually necessary, and is in itself wholly sufficient to satisfy the purpose of the law, the adoption of two is not within the scope of the power; and that where such a thing is attempted, neither of the children is the legally adopted son of the deceased, although the ceremonies of adoption may have been performed as regards each and also at the same time.9. such being our opinion, the result will be that the adoption of the plaintiff is invalid. our decision on this point will not affect the other son, who is alleged to have been adopted with the.....
Judgment:

White, J.

1. This is an appeal by the plaintiff in the first Court against a decision of the Officiating District Judge of Rungpore, reversing a decree of the First Munsif of Gaibanda passed in favour of the plaintiff.

2. The lower Appellate Court has found that the two widows of Kali Kristo Lahiri--namely, the defendant Shyama and one Brohmomoyi, who has since died,--adopted two sons at the same time under a written authority conferred upon each of them by Kali Kristo; and that the son adopted by Brohmomoyi is the plaintiff, and the son adopted by the defendant Shyama is one Norendro, who, however, is not a party to the suit. The lower Appellate Court holds, according to Hindu law, that a simultaneous adoption is bad, and that the plaintiff has, therefore, no right to bring the suit.

3. Against this decision the plaintiff appeals. As the point is one of great and general importance, we should have been glad to avoid deciding such a question in the present suit, which is only what is called a rent-suit. But as the ryot-defendant has never attorned to, or paid rent to the plaintiff, and the plaintiff has not proved that the relation of landlord and tenant ever subsisted between himself and the ryot, the plaintiff can only recover his share of the rent on proving his title, and this depends on the validity of the simultaneous adoption.

4. This question has been very ably and exhaustively argued by Mr. Branson for the Appellant and Mr. Evans for the Respondents. They placed before us, and discussed at great length, all the ancient and modern authorities on the subject, and we have come to the conclusion that a simultaneous adoption is not valid according to Hindu law.

5. Phear, J. in the case of Sidessury Dossee v. Doorga Churn Sett 2 I.J. N.S. 22 decided on the 14th of July 1865, came to the same conclusion. His reasons for the decisions are to be found in an elaborate judgment which that learned Judge gave in Monemolhonath Dey v. Ononthnauth Dey 2 I.J. N.S. 24 in the previous February. The latter case was appealed to a Bench consisting of Peacock, C.J., Trevor, J., and Sumbunath Pundit, J., who reversed, indeed, the judgment of Phear, J., but on another and a distinct ground. As regards the validity of simultaneous adoption, Peacock, C.J., says: 'It is not necessary to go to the extent to which the learned Judge below went, or to say that a simultaneous adoption must be bad.' In another case S.M. Money Dassee v. S.M. Prosonomoye Dassee 2 I.J. N.S. 18 decided on the 20th of September 1866, the same question again arose before Peacock, C.J., and Norman, J., but was again not decided, the Court there saying: 'It is not necessary to say whether, if the widow had adopted two sons at the same time, they would have been regularly adopted sons according to Hindu law and so capable of being heirs of the testator.' The judgment of Phear, J., therefore, on this point, has never been overruled, although it has not been affirmed by an Appeal Court.

6. Phear, J.discusses the conflicting authorities with the greatest fulness and minuteness. Having read and considered that judgment, we think that the learned Judge has deduced the right rule from the authorities.

7. He lays down the rule in these words: 'The power to adopt rests solely upon the religious necessities, so to speak, of the father, and is limited by them. It does not extend to enabling him to do more than is, at the time of exercising it, reasonably sufficient to satisfy the purpose for which the law exists. Consequently, supposing the occasion for exercising the power to have arisen, one son and one alone can be adopted.' The words reasonably sufficient' might be taken to mean what a reasonable man might think sufficient to ensure his happiness in a future world, but the context shows that the learned Judge really meant that the exorcise of the power of adoption must be limited by the necessity of the case.

8. Applying that rule, it follows that, as the adoption of one son alone is actually necessary, and is in itself wholly sufficient to satisfy the purpose of the law, the adoption of two is not within the scope of the power; and that where such a thing is attempted, neither of the children is the legally adopted son of the deceased, although the ceremonies of adoption may have been performed as regards each and also at the same time.

9. Such being our opinion, the result will be that the adoption of the plaintiff is invalid. Our decision on this point will not affect the other son, who is alleged to have been adopted with the plaintiff at the same time, inasmuch as he is not a party to the suit, unless, indeed, his adoptive mother Shyama, who is a party, can be held to represent him in the present suit, upon which question we pass no opinion.

10. The appeal will be dismissed with costs.

11. This decision will govern Special Appeals Nos. 687 to 697, both inclusive.


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