1. The facts which are necessary to be stated to elucidate the points taken before us in this appeal, and the reasons of our decisions upon them, are as follow:
2. The property claimed in this suit is admitted to have been held and owned at one time by Gour Kishore, father of Bhowani Kishore and husband of Chundraboli (see the genealogical tree given below).
Ram Chundee Chowdhary.
Krishna Nath Krishna Mohun,
(Marr. Dayamoye). |
| | |
Daughter Gogun Chunder Son
Chundraboli (Defdt. No. 2). Shib Kishore
(Marr. Gour (Marr. Gungamoni).
Kishore Acharjee). _________|________
| | |
Son Brojo Kishore. Joy Kishore
Bhowani Kishore (Plaintiff No. 1).
3. On the death of Gour Kishore it devolved upon his son Bhowani Kishore by the Hindu law of succession. On the death of Bhowani Kishore without issue, a contest arose in respect of it between Chundraboli and her alleged adopted son, Ram Kishore, on the one hand, and Bhoobunmoye, widow of Bhowani Kishore, and his alleged adopted son Rjendro Kishore on the other. It was alleged by Chundraboli that, under an anumati pattro granted by her husband, she adopted Ram Kishore after the death of Bhowani Kishore. Ram Kishore was originally the defendant No. 1 in this suit, and has died since its institution. He is now represented in this appeal by his minor son, Juggut Kishore.
4. On that occasion Bhoobunmoye, the widow of Bhowani Kishore, similarly set up an anumati pattro from her husband, and put forward the claim of Rajendro Kishore, who was alleged to have been adopted by her in pursuance of the aforesaid authority.
5. This contest was finally settled by the decision of the Judicial Committee, reported at page 279, Moore's Indian Appeals, Vol. X. One of the questions raised before us in this appeal is, whether or not their Lordships of the Judicial Committee finally decided that the adoption of Ram Kishore by Chundraboli was invalid for all purposes. This question will be dealt with in its proper place; but it is not disputed by any party that the Judicial Committee found that Bhoobunmoye's alleged authority to adopt was not established, and consequently Rajendro Kishore's adoption was not valid. As regards the property in dispute, Bhoobunmoye, as the next heir of her husband, Bhowani Kishore, was held to be entitled to succeed in preference to Chundraboli or Ram Kishore.
6. A few years after this decision Bhoobunmoye died; and there is no dispute between the parties that the estate then devolved upon Chundraboli, the mother of Bhowani Kishore.
7. Chundraboli, after the property had thus become vested in her, executed a document, by which she made it over in her lifetime to her adopted son Ram Kishore. Gogun Chunder, defendant No. 2, was a consenting party to this arrangement. After thus making over the disputed property to Ram Kishore, Chundraboli died on the 21st Bysack 1277 (3rd May, 1870).
8. It is alleged that, on her death, the estate devolved on the next heirs-at-law, viz., the plaintiff No. 1 Joy Kishore, and his brother Brojo Kishore, since deceased. It will be seen from the genealogical tree given above, that Joy Kishore and Brojo Kishore are the grandsons of Krishna Mohun, who was the brother of Bhowani Kishore's maternal grandfather; whereas Gogun, defendant No. 2, is the son (whether natural born or adopted, is one of the questions raised in this suit) of Krishna Nath the maternal grandfather of Bhowani Kishore.
9. The plaintiffs in this suit viz., the aforesaid Joy Kishore and Hurrosoonduri Debea, who is alleged to have purchased a share of the disputed property from the former since Chundraboli's death, further allege, that Gungamoni, the mother of Brojo Kishore and Joy Kishore, who inherited Brojo Kishore's share, made it over to her other surviving son, viz., plaintiff No. 1, by a deed, dated 24th Assa 1281 (June 1874). The present suit was brought by Joy Kishore and Hurrosoonduri against Ram Kishore and Gogun on the 11th July 1874. Against the apparent preferential right of Gogun, defendant No. 2, the plaintiffs allege, among other things, that he was the natural born son of Krishna Mohun, but was adopted by his uncle Krishna Nath, maternal grandfather of Bhowani Kishore. Their contention is, that, as an adopted son, he is neither entitled to succeed to the relatives of his natural father, nor to such relatives of his adoptive father as are sprung from a different gotra, or family.
10. Both the defendants, viz., Ram Kishore and Gogun, alleged that he, Gogun, is the natural born son of Krishna Nath. They further assert that this is not a bona fide suit for the assertion of a disputed right, but, with a view to harass and annoy them, it has been caused to be instituted by the sons of Hurrosoonduri, the plaintiff No. 2, between whom and the defendant Ram Kishore there existed bitter enmity, and that this being the real nature of the suit, it ought to be dismissed as opposed to public policy. As regards Hurrosoonduri, the plaintiff No. 2, they object that she is a mere benamidar for her sons. They further contended that the Judicial Committee, in the decisions already referred to, upheld the adoption of Ram Kishore as valid, but negatived his right to immediate possession of the property then in dispute, on the ground that Chandraboli, by adopting him, could not divest Bhoobunmoye of the estate which had vested in her on the death of her husband. Lastly, they join issue with the plaintiffs on the question of Hindu law referred to above, and maintain, that, admitting all the facts stated in the plaint to be correct, the suit should still be dismissed on the ground that Gogun is preferential heir of Bhowani Kishore to Joy Kishore, plaintiff No. 1, and his brother.
11. This question of Hindu law has been decided by the lower Court in the plaintiffs' favor, although its ultimate decision has been against them.
12. The defendants (respondents) have again raised it before us, and as it goes to the very foundation of the plaintiffs' rights, we shall deal with it first.
13. The lower Court has decided this question in favor of the plaintiffs, solely on the authority of a gloss on a text of Menu by Kalluca Bhatta, the well-known commentator of the institutes of Menu. The text of Menu and the gloss in question are to be found at pp. 145 and 146 of Colebrooke's Digest, Vol. III, Bk. V, Chap. IV, Sec. I. Whether this gloss supports the conclusion of the lower Court is a question to which I shall revert hereafter. But it is beyond all doubt that it would not be a correct basis of decision, if the position laid down in it be found to be opposed to the authorities that are generally appealed to and govern the decision of questions of adoption arising in the Bengal school. These are the two well-known works on adoption, viz., the Dattaka Chandrika by Devandha Bhatta and the Dattaka Mimansa by Nunda Pundit.
14. Then, how does the question raised before us stand upon the authority of those two works of adoption? It appears abundantly clear from both these treatises, that the position and status of an adopted son are precisely the same as those of a natural born son, except in a few instances, which are expressly enumerated. In Section 3, para. 1 of the Dattaka Chandrika, the author, after laying down a special rule, viz., that an adopted son cannot 'officiate in the sixteen funeral repasts,' if the legitimate son exists, says: 'And a text of Yajnavalkya recites: Amongst these the next in order is heir, and presents funeral oblations, on failure of the preceding. Otherwise the adopted son in every respect resembles the real legitimate one.' The same author, in discussing the question--whether an adopted son succeeds to empire or not, says, in Section 5, para, 28: 'Thus the son of the wife, the son given, and the rest, receive the share prescribed for them by the general law. For grounds for contracting the operation of the same are wanting,' &c.; Again, in Section 6, para. 53 of the Dattaka Mimansa, it is laid down: 'The adopted son, as substitute for the real legitimate son, being the agent of rites performed by a legitimate son, it follows that he is the performer of funeral repasts, the objects of which are the manes, in honour of whom a legitimate son performs such repasts. For: without difference, relation to the father and other sires of the adopter, obtains; in the same manner, as relation to the general family, the sakha, the family deity, and family rules, of that person.'
15. From these passages it is evident that the rights of an adopted son, unless curtailed by express texts, are in every respect similar to those of a natural born son.
16. Have any texts been produced to show that an adopted son cannot succeed to the estate of such relatives of his father as are sprung from a different family? The learned Advocates, who argued this question before us in support of the plaintiffs' contention, have not been able to refer us to any authority to establish this proposition.
17. On the other hand, both in the Dattaka Chandrika and the Dattaka Mimansa, there are passages which lead to the opposite conclusion. The author of the Dattaka Chandrika, after referring to the contradictory texts of ancient Rishis upon the subject of the adopted son being heir to his father's kinsmen, in Section 5, para. 22, says: 'By reason of succeeding to the estate of sapinda kinsmen as well as to that of the father he is (argued by the one to be) heir to kinsmen.' Then, after reconciling in the same paragraph these contradictory passages in a way which it is not necessary here to notice, in para. 24, he lays down the law thus: 'Therefore, by the same relationship of brother, and so forth, in virtue of which the real legitimate son would succeed to the state of a brother or other kinsmen, where such son may not exist, (the adopted son) takes the whole estate even.'
18. Now, reading the two passages together, it is clear that the phrase 'other kinsmen,' italicised above, at least includes the sapinda kinsmen, if not others. Therefore, we have next to consider the question, whether the defendant No. 2, Gogun, is a sapinda kinsman of Bhowani Kishore or not. The following passages from the Dattaka Chandrika and the Dattaka Mimansa will show, that, as regards sapinda relationship in the family of the adoptive father, there is no difference between a dattaka and a natural born son. Para. 32, Section 6, Dattaka Mimansa: 'Therefore, not being otherwise inferable, the relation of sapinda, in the peculiar family (kula) of the adopter, as founded only on express texts of law, must be admitted. This is declared. Relation of sapinda is of two descriptions; through consanguinity and connection by a funeral oblation. Of these, the relation as sapinda, arising from consanguinity, being obviously barred, in the case of the adopted son. Hemadri (after having declared that relation, as arising alone from connection by a funeral oblation, and consanguinity) has determined the relation of sapinda, of sons given, and the rest, in the family of the adoptive father, as extending only to the third degree.'
19. Para. 38: 'But, in the instance of the real legitimate son, is not thus the performance of the sapindi-karana (for his father) with three forefathers only, established by holy writ? Being established then by this alone, for what purpose is the inconvenience of introducing another express text (to declare it)?' Anticipating this objection, the author subjoins: 'Therefore this, of adopted sons, is a relation of sapindas, extending only to the third degree, being productive of uncleanness and disability of marriage, and consisting in connection by funeral oblations,' &c.;, &c.;
20. Para. 39: 'Intending merely this, it is said by the author of the Sangraha: 'The relation as sapinda of adopted sons, extends to three degrees in the family of the natural father: and like that in the family of the adopter. This is a rule of law.' The mention here of relation sapinda, in both families, is with reference to the son of two fathers; for, it has been shown, that the ceremony sapindi-karana for such son, is performed with two sets of three forefathers. Of the absolutely adopted son, the relation of sapinda, in the family of the adopter, consisting in connection by funeral oblations, extends to three degrees: in the family of the natural father, arising only from consanguinity, it extends to seven degrees. To enlarge would be useless.' Dattaka Chandrika, Section 3, para. 16: 'In the same manner, by parity of reason, where there may be a diversity of mothers, the sires of the natural mothers are first designated by a son, who is son to two fathers, at the funeral repast (suggested by the passage subjoined) in honor of the maternal grandsires, subsequently the sires of her, who is the adoptive mother. 'Where the paternal sires are honored, there certainly are the maternal.''
21. Para. 17: 'But the absolutely adopted son presents oblations to the father, and the other ancestors of his adoptive mother only: for he is capable of performing the funeral rites of that mother only: and thus, in conformity with the spirit of the sentence--'He is (destined) to continue the line of his ancestors,' which is subjoined as the reason (in the text of Vasishtha) the prohibition (therein)--'let not a man give an only son,' refers to an adopted son other than the Dwyamushyayana, or son of both fathers; for (where the adopted son is such), no extinction of lineage ensues, as has already been declared.'
22. Para. 18: The relation as sapinda is next considered. This extends to three degrees; in the family of the natural father, by reason of consanguinity, and in that of the adopter, through connection by the funeral cake.
23. Para. 50 of Section 6 of Dattaka Mimansa: 'The forefathers of the adoptive mother only are also the maternal grandsires of sons given, and the rest: for, the rule regarding the paternal is equally applicable to the maternal grandsires (of adopted sons).
24. Para. 51: 'As for what is Said by Hemadri, that the precept enjoining the performance of a funeral repast, in honor of the maternal grandfather, refers to the natural maternal grandfather, that is inaccurate: for it is at variance with the passage--'of him, who has given away his son, the obsequies fail.' Nor is the capacity of the maternal grandsires, as givers, wanting: for by reason of their affording their assent to the gift (as appears from this passage, having convened his kindred' &c.;), they also are parties to the same. Besides by this passage, 'the funeral cake follows the family and estate',--the family and estate are declared to be the cause of performing the funeral repast; and the estate of the maternal grandfather also, like that of the father, lapses from the son given. His incapacity to. perform a funeral repast in honor of his original maternal grandfather is properly declared.'
25. Para. 52: 'Accordingly Hemadri himself, from not being satisfied with that (just stated), has advanced the other position. 'In the same manner, as for the secondary father, a funeral repast must be performed in honor of the secondary maternal grandfather and the rest.''
26. It being thus established that the adopted son succeeds to the sapinda kinsman of his father, and that as regards the relationship of sapinda there is no difference between the adopted and the natural born son, the question before us is reduced to this--whether Gogun is a sapinda kinsman of Bhowani Kishore
27. A reference to the genealogical tree will show that the three immediate paternal ancestors of Gogun are the three immediate maternal ancestors of Bhowani Kishore. Bhowani Kishore, while living, was bound, in parvana rites, to offer funeral cakes to those three maternal ancestors. He now being dead, therefore, participates in the funeral offerings that Gogun, on similar occasions, makes to the same three ancestors, who are his adoptive father, grandfather, and great grandfather; consequently Gogun and Bhowani Kishore are related to one another as sapindas in accordance with the definition of 'sapinda' laid down in Guru Gobind Shaha Mandal v. Anand Lal Ghose Mazumdar (5 B.L.R., 15). This definition is entirely in accordance with para. 38, Chap. XI Section 1, Dayabhaga, and para. 7, Chap. XI of Dayatattwa.
28. The conclusion at which the lower Court has arrived upon this point is, therefore, opposed to the law as laid down in the Dattaka Chandrika and the Dattaka Mimansa, which are generally accepted as works of unquestionable authority on the subject of adoption.
29. It has been contended before us that v. 8 of Chap. X of the Dayabhaga supports the conclusion of the lower Court, although it has not expressly referred to it. It is said that the son given, is not included amongst the first six kinds of sons who are declared to be heirs of kinsmen in that verse. This contention is clearly opposed to the ruling of the Judicial Committee in Sumbhoo Chunder Chowdhry v. Naraini Debe (3 Knapp's P.C., 55; S.C., 1 Suth. P.C.C., 25). If we are to adopt this construction, we must hold that an adopted son cannot succeed collaterally at all, a position opposed to a uniform current of decided cases upon the subject. It is true, in some of these cases it has been taken for granted that the text in question of the Dayabhaga bears the construction for which the plaintiffs' counsel contends. But a careful examination of the immediately preceding verse, viz., v. 7, will show that that is not the correct construction of v. 8.
30. The author of the Dayabhaga deduces his conclusion in v. 8 from the Devala's text referred to in v. 7. But it is not correct to say that the Devala's text places the 'son given' within the class of sons who are not heirs of kinsmen. Devala's text is not before us, and it may be that he, in reciting the twelve descriptions of sons, followed the order given in v. 7, because we find that the same text, which is referred to in the Dattaka Chandrika and the Dattaka Mimansa and Colebrooke's Digest, recites the sons in the same order. But the text, after reciting them in that order, classifies them thus, viz.: (1) son begotten by a man himself, (2) or procreated by another, (3) or received, (4) voluntarily given. After having classified them in this manner, the text goes on to say: 'Among these the first six are heirs of kinsmen, &c.;'
31. It seems to me to be reasonable to hold that the phrase 'first six' here refers to the first six according to the classification immediately preceding, and not the first six according to the recital of the different descriptions of sons given in an earlier portion of the text. In a note by Srikrishna Tarkalankar the order, which the different descriptions of sons occupy according to the aforesaid classification, is given, and it appears from it that the adopted son falls within the first six. It is evident, therefore, that, according to v. 8, the adopted son succeeds linearly as well as collaterally. This is the construction which, as already remarked, was adopted by the Judicial Committee in Sumbhoo Chunder's case (3 Knapp's P.C., 55; 1 Suth. P.C.C., 25).
32. Of the European text-writers there is a consensus of opinion that the adopted son succeeds to the collateral relations of his adoptive father. They lay down this rule without any limitation. It is true that, in Mr. Macnaghten's Hindu law, p. 78, it is laid down, on the authority of the decision of the Sudder Dewany Adawlut in the case of Gunga Mya v. Kishen Kishore (3 Sel. Rep., 128; new Ed., 170), that an adopted son does not succeed to the relatives of the adoptive mother. Whether that position is right or wrong it is not necessary to discuss in this case. Gogun does not lay claim to any property left by any of his maternal relatives, but to the property of Bhowani Kishore, who is related to him by adoption ex parte paternal. But upon the point whether the adopted son succeeds to his adoptive father's relatives, Mr. Macnaghten is at one with all the other European text-writers.
33. The same view of the law is taken by Juggernath in his Digest. After fully discussing this question at pp. 270 to 273 of Vol. III, he comes to the conclusion that the adopted sons are heirs to kinsmen as well as to their own adoptive fathers.
34. It remains to notice the gloss of Kulluka Bhatta upon the sole bases of which the decision of the lower Court upon this point rests. As I have already remarked, if it really supported the view of the lower Court, its authority could not preponderate against that of the Dattaka Chandrika and the Dattaka Mimansa. But it seems to me that it does not warrant the conclusion arrived at by the lower Court. The gloss in question, which is to be found in p. 146 of Colebrooke's Digest, Vol. III, is to the following effect: 'Menu sprung from the self-existent Brahma, and first of the fourteen Menus. Among these twelve sons of men whom he has named, the first six are pronounced kinsmen and heirs to collaterals, &c.;,'
35. In the original, the phrase gotra dyada stands for 'heirs to collaterals.' Dyada is equivalent to heirs, and gotra to family name. It is said that gotra dyada means heirs of the persons bearing the same family name. It may be, that this would be the meaning of the phrase above alluded to, if the letters are strictly adhered to. But it appears to me from the context that these words are intended to include all the collateral members of the family who stand in the relation of sapinda, &c.;, to the adopted son.
36. But, granting that the literal construction should be adhered to, does the text in question support the conclusion of the lower Court? It lays down simply that the first six kinds of sons are heirs to the kinsmen sprung from the same family. It is not necessarily implied thereby, that any one of these six descriptions of sons is not entitled to inherit to the estate of a kinsman sprung from a different family. If that were so, the natural born son would also be debarred from inheriting the wealth of such kinsmen.
37. Now, as regards decided cases, it seems to me that the precise point raised before us is not touched by any one of them. The cases of Mirnamoye v. Beejoy Kissore (W.B.F.B., 121) and Ramkrishna v. Minatchi (7 Mad. H.C., 245) relate to the right of the adopted son to succeed to the estate of the relatives of the adoptive mother, which is not the question here. In the other cases cited, the question whether the adopted son inherits to his adoptive father's relatives, who are sprung from a different family, did not arise.
38. For the foregoing reasons, I am of opinion that the contention of the plaintiff upon this point fails, and the decision of the lower Court upon it is erroneous.
39. My brother McDonell and myself entirely concur with Mr. Justice Mitter in the conclusion stated in his judgment; and we think with our learned brother that, according to the true interpretation of the Hindu law prevailing in Bengal, an adopted son takes by inheritance from the relatives, on the maternal side of his father by adoption, in the same manner as a son begotten would take. If this construction of the law is correct, then Gogun, assuming him to have been adopted by Krishna Nath, being indisputably nearer in degree than the plaintiff Joy Kishore and his deceased brother, the plaintiffs would on that ground alone be out of Court. Joy Kishore and Brojo Kishore not being, in preference of Gogun, heirs to the deceased Bhowani Kishore, unless indeed Gogun were shown to be incapacitated; and we may at once say that the attempt to, show this entirely failed, and has not been repeated before us. This, if the matter were certain to rest here, would suffice to dispose of the suit. But as the plaintiffs may be advised to carry the case further, it is our duty to decide also the questions which arise out of it.
31. The property in suit, it will be borne in mind, was ancestral property of one branch of the exceedingly prolific family of the Acharjeas of Muktagachia. It descended, in due course, to one Gour Kishore, and from him devolved to a son, Bhowani Kishore, born of his marriage with Chundraboli.
32. It is this Bhowani Kishore whom the plaintiffs describe as the last full owner, and from whom directly they make title by inheritance. Bhowani Kishore, however, having died in the lifetime of his mother, she set up a right to adopt another son, and did adopt one, who was called Ram Kishore.
33. Bhowani Kishore's widow, Bhoobunmoye, who actually succeeded him, had previously, and, it would seem, at first with the acquiescence of the mother, set up a will containing a permission to adopt, and, after some time, made an adoption. The ladies had, at this time, quarrelled; the mother impeached Bhobunmoye's document, her husband's pretended will, as forgery, and the result was a suit on behalf of Ram Kishore against Bhoobunmoye and her alleged adopted son, which finally went in appeal to Her Majesty in Council, and ended in Bhoobunmoye's power to adopt being negatived, and in a decision as to the status of Ram Kishore, of which the precise effect, as already mentioned, is one of the questions for our consideration. The case will be found in Vol. X, Moore's Indian Appeal Cases, p. 279, and the judgment of their Lordships was delivered in May, 1865.
34. Bhoobunmoyee having died not very long after, Chundraboli succeeded as mother of Bhowani Kishore, and she almost immediately assigned over all her rights to Ram Kishore, by a deed bearing date 26th Bhadro, 1276 (corresponding with 10th September, 1869).
35. This document was witnessed, in token of assent, by three persons, who appear to have been agnates of Bhowani Kishore; and on the 30th December following, Gogun executed a separate deed of confirmation, reciting that he had been absent when Chundraboli's deed was executed, and for that reason had not been able to join in it.
36. Ram Kishore, accordingly, was in possession at the time of bringing this suit, but has since died. Chandraboli had died, it seems in Bysack, 1277 (May 1870, a few months after the execution of the deed). At this time the plaintiff's brother Brojo Kishore was alive, and was, if their case be true, jointly entitled with him. Brojo Kishore died in Aughran, 1278 (corresponding with December, 1871), his heir being his mother, who is said to have made a gift of her rights to her surviving son Joy Kishore; and the latter says that he, in consideration of a sum of Rs. 51,525 received, sold to plaintiff No. 2 a four-teen-anna share of the more valuable properties claimed, and less shares in the remainder.
37. The plaintiff No. 2 is one Hurrosoonduri Dabia Chowdhrani. Defendants urge, that she is a person without any means; that the alleged consideration never passed; and that the suit has been entirely got up, and is conducted by the sons of Hurrosoonduri, Sridhur and Doorga Dass Acharjeas, who are enemies of Ram Kishore, and have got Joy Kishore under their influence for the purpose of harassing the defendants; and it was, therefore, strongly contended on behalf of the respondents, that the suit was malicious, groundless, and vexatious, and one which, on considerations of public policy, ought not to be entertained. It was, moreover, the defendants state, that the Privy Council had affirmed, and not denied, the validity of the adoption of Chundraboli, merely deciding that it was inoperative for the purpose of defeating Bhoobunmoye's rights.
38. These matters were set forth at much length in the answer of Ram Kishore; and Gogun referring to those averments added, that if Ram Kishore had no rights, then he himself, and not Joy Kishore and his brother, was the heir of Bhowani Kishore.
39. By the judgment of the Subordinate Judge, the whole suit of the plaintiffs' was dismissed, we may say, on the following grounds:
40. That as to the plaintiff Hurrosoonduri, she had no real interest whatever in the suit, and had never had the means of acquiring any; that her sons were the real promoters of it; and that her name was used in order to avoid any liability on their part for the defendants' costs. That the alleged sale of fourteen-anna share and so forth, and the passing of consideration, were wholly untrue, no money having passed, the plaint having been settled long before the alleged bargain, the consideration being absurdly inadequate, and the plaintiff Joy Kishore being in fact a creature of the two men, Sridhur and Doorga Dass. That these considerations, however, would not affect the claim of Joy Kishore, if he had any case. That as to him, he would indeed be the heir in preference to Gogun, not by reason of the alleged infirmities of the latter, but because Gogun was the adopted and not the begotten son of Krishna Nath, the maternal grandfather of Bhowani Kishore, and because adopted sons, in his opinion, could not inherit in that line. That, however, such preference could avail the plaintiff nothing, inasmuch as Ram Kishore was holding the estate by a sufficient and valid title, namely, as adopted son of Gour Kishore, the father of Bhowani Kishore, and so brother and heir to Bhowani. That the judgment of the Privy Council was no impediment to his so holding, the object and meaning of their Lordships having been, as he understood it, not to declare the adoption of Ram Kishore bad for all purposes, but merely to decide that it had no force to divest the estate of Bhoobunmoye, Bhowani Kishore's widow, then in possession. That if their Lordships' judgment contained no adjudication adverse to Ram Kishore's status as adopted son, it was too late to ask for it now, if indeed it had been asked for, seeing that Ram Kishore had occupied the position and been recognized as such for more than thirty years. The Subordinate Judge also expressly says, that the plaintiffs relinquished the prayer for an adjudication on this point. The Court below pointed out, moreover, that the decision in favour of Bhoobunmoye had been no impediment of Ram Kishore's performance of the needful rites and ceremonies for the benefit of Gour Kishore, and even of Bhowani Kishore and their paternal ancestors; that the succession of Ram Kishore after Bhoobunmoye, brought about by the surrender by Chandraboli, had effectually carried out the aspirations of Gour Kishore for his religious welfare, and that of his line, which aspirations it could not have been their Lordships' intention to frustrate.
41. Plaintiffs having appealed on the whole case, the defendants are of course entitled to rely on every one of these grounds to defeat their claim.
42. The first question which we have to consider is the plaintiffs' right to sue.
43. If Gogun Chunder be what is called the 'natural born' son of Krishna Nath, who was maternal grandfather of Bhowani Kishore, he is without dispute preferable heir to Joy Kishore and his brother; if he be the son of Krishna Mohun, adopted by Krishna Nath, he is still the heir according to our ruling on the point of Hindu law. For the purpose, therefore, merely of our own decision, it is immaterial what his paternity was; but as the case may go further, it will be convenient to give our opinion.
44. Gogun is a man of advanced age, he was more than 70 years old when he was examined in the cause, and his adoption is said to have taken place in 1217 B.S., or 1810 of the Christian era. If he was adopted, he was only transferred from one brother to another. Consequently there would be no change in his place of abode, and title, if any, in his way of life. It is not surprising, therefore, if the fact has dropped out of recollection, and if evidence of it is difficult to obtain.
45. It is certain that several members of the family and friends who have been examined say, it is known in the family that he was adopted; and moreover, there are petitions and proceedings from the Collector's office referring to a mutation of names so long ago as 1233 B.S. (1826), in which, on the death of Krishna Nath, his widow Doyamoye and brother and co-sharer Krishna Mohun severally petitioned the Collector in 1826, reciting the adoption and the right of the minor Gogun to a certain share in some immoveable property. Whereupon a Canongoe (who is a public officer) made an enquiry, and reported that such adoption had taken place, and that Doyamoye, in behalf of the minor, was in possession of his share.
46. Mr. Woodroffe, who was for the defendants, objected to these documents as inadmissible; but it is difficult to see how they can be excluded. They are public records of the Rajshahye Collectorate. Copies having been obtained from the Collector's office at Bogra, doubtless because the land to which the proceedings related formed part of the territory made over from Rajshahye to the new Joint-Magistracy (now district) of Bogra, when that newly-created office acquired revenue jurisdiction, first in 1832, with gradual extension afterwards, and the record would be transferred with the land.
47. It is likely enough that, of late years, so long after the event, the traces of adoption may have become faint, and Gogun may have been looked upon as the real son of Krishna Mohun. The Acharjeas, and possibly the Chowdrys too, who are connected with them, seem to have been addicted to arrangements amongst themselves to meet the requirements of Hindu law and usage. In both families there are instances of one or more superfluous sons in one branch being made over to another, and in such arrangements (probably regarded as not concerning outsiders) precise accuracy of statement was not always adhered to, of which an example may be found in the judgment of the Privy Council of what took place in regard to the pretended will of Bhowani Kishore, when it is nearly certain that if the two ladies could have agreed on the subject, Ram Kishore could have been taken in adoption by Bhoobunmoye under her spurious power, instead of by Chundraboli under her genuine power.
48. There is no doubt evidence telling the other way. It is remarkable that when Gogun was in the witness-box, calling himself the son of Krishna Nath, no real cross-examination on this point was attempted.
49. The expressive silence of Golokemoye, who, if Gogun was a son of Krishna Mohun, must have been his own sister, and who was asked point blank whose son Gogun was, is noticeable. She made no answer, and the plaintiffs' pleader, thereupon, according to a curious practice of the mofussil Courts, formally gave her up as a witness.
50. Upon the whole, although the matter is not free from doubt, and perhaps either conclusion might be supported, we are not prepared to dissent from that of the Subordinate Judge, viz., that Gogun was really adopted.
51. The next matter for consideration is, whether the plaintiffs, each in respect of the share which he or she claimed, ought to have been allowed to maintain the suit.
52. As to the plaintiff Hurrosoonduri, we have no hesitation in concurring with the Court below. We are satisfied that her part and claim in the suit are a mere sham; that she has no real interest; that neither she nor any person whom she may represent ever acquired any by actual purchase; but that her share in the proceedings is merely a cover for the malicious interference of her sons, Sridhur and Doorgadass, who have got the plaintiff Joy Kishore into their hands, raked up the old claim of their father, and fomented this litigation for the purpose of annoyance to Ram Kishore, now dead.
53. For this claim is not absolutely new. During the pendency of Ram Kishore's suit against Bhoobunmoye, Narain Acharjee, the father, had filed a petition of objection, as it was called, alleging himself to be entitled as nearest gyanti. Similar petitions were filed by three other persons; and these all seem to have elicited the intervention of Gogun himself by a petition, in which, at great length, he set out his own case, impugning both the adoptions set up, and contending that none of the kinsmen had any claim to be put in competition with his.
54. The suit of Hurrosoonduri, therefore, is clearly not maintainable. Joy Kishore, however, will be entitled to recover, if he can make out a right to it, the definite share for which he sues, and no more.
55. The plaintiffs do not seek to recover the property jointly, but each asks for the share to which he or she claims to be entitled; and we do not hold that considerations of public policy call upon us to dismiss the whole suit, if the claim of one plaintiff be unaffected by the taint which is fatal to the other.
56. Assuming, therefore, for argument's sake, that Joy Kishore's claim is preferable to that of Gogun, has he a better title than the defendant Ram Kishore, or the infant son on whom the deceased Ram Kishore's rights have now devolved? (Joy Kishore himself has also died since the commencement of the suit).
57. It will be remembered that Bhoobunmoye, after being maintained in possession by the judgment of the Privy Council, died, and Chundraboli succeeded as mother of Bhowani Kishore; but she immediately surrendered her rights in favour of Ram Kishore by a deed, in which it was declared that he had been adopted in accordance with the directions of her husband Gour Kishore, had regularly performed the sradh and other rites and ceremonies, and was therefore justly entitled.
58. Chundraboli might, of course, give up her own rights for her life, but she has since died, and the plaintiffs' case is, that the adoption of Ram Kishore was invalid, and has been so declared by the Privy Council, and that consequently the next heir of Bhowani Kishore will take.
59. On this part of the case two serious questions arise: 1st, Whether their Lordships' judgment wholly invalidates the adoption, that being the ground in which the adoption is assailed: 2nd, whether Ram Kishore can be treated as the heir of Bhowani Kishore.
60. The first of these two questions is not free from difficulty. It is necessary to consider the circumstances under which the judgment was given, and then to apply the law of evidence.
61. This judgment was given upon appeal against a final judgment of the Sudder Dewany Adawlut, by which Ram Kishore, as a son adopted by Chundraboli, widow of Gour Kishore, in 1844, recovered possession of the estate which had been enjoyed by Bhowani Kishore, the begotten son of Gour Kishore, and had devolved, at Bhowani Kishore's death, upon his widow as his heir according to Hindu law.
62. It is to be observed that the last-mentioned widow had, in 1843, herself adopted a son called Rajendro, in pursuance of an alleged permission from her husband Bhowani; and this Bajendro having subsequently died after attaining majority, she alleged herself to have adopted another son named Kylas, and appealed to England in the capacity of mother and guardian of this Kylas, who, however, as we gather, also died while the appeal was pending. The deed of permission was found by the Sudder Court, and afterwards by the Privy Council, to have been forged.
63. According to the report in 10 Moore, page 301, Sir R. Palmer, as counsel for the appellant, used the following argument: 'The important question arises, whether, as such adopted son of the late Gour Kishore, the father of the appellant's husband, Bhowani Kishore, who survived his father 23 years, and left the appellant his childless widow, and as such, his admitted heiress by the Hindu law, could displace and supersede the appellant as such heir in the possession of the estates which devolved on her husband as an absolute estate of inheritance. We submit that such a power of appointment, if exercised by a mother, was invalid, if the son left a widow, as her vested rights (Strange's Hindu Law, Vol. I, page 134) would be defeated by its exercise.' And again: 'Bhowani Kishore succeeded to the ancestral estate and property by operation of law as his father's sole heir, and not under any devise or bequest from him, and the estate and property being in him, as admitted by the decree, as an absolute estate of inheritance, vested, on his death, in the appellant, as his widow and heiress; therefore her title and interest therein could not be displaced or divested by the act of Chundraboli Debia subsequently adopting a son, so as to vest the estate and property in such son as heir-at-law, not of the appellant's deceased husband, but of his father, whose interest in the same, ceased and determined on his death.' This argument was answered on the part of the respondent Ram Kishore by the observation that 'even if the forged deed was genuine, the claim of the appellant to her widow's rights was negatived by the alleged adoption of Kylas Kishore on Rajendro Kishore's death.'
64. Apart, therefore, from the issues of fact relating to the several acts of adoption and the deeds of permission under which they purported to have been made, it is clear that the important, if not the only, question for their Lordships' decision was the validity of Ram Kishore's adoption for the purpose of ousting Bhoobunmoye from the estate.
65. The judgment delivered by Lord Kingsdown, in the first place, disposed of the adoptions made by Bhoobunmoye, both of which were 'held in this suit to be invalid.' The judgment proceeded: 'The next question is as to the validity of the adoption of Ram Kishore;' and their Lordships then say that 'while we see no reason to dissent from the Court below as to the genuineness of the anumati pattro, or regularity of the adoption, we think it necessary to examine into the genuineness of this instrument, as we are of opinion that at the time when Chundraboli Debia professed to exercise it, the power was incapable of execution.'
66. Lord Kingsdown, then, after adverting to the facts that Gour Kishore had, in 1811, executed a deed of permission providing for the case of his having no natural born son, that a son had been thereafter born to him, and that, nevertheless, two years later in 1819, he executed a further instrument, went on to discuss the nature of that instrument, and held that it was not a will or devise, but a mere permission to adopt. His Lordship next observed that it undoubtedly contemplated more than one adoption, and assigned no express limits to the time within which the power of adoption should be exercised. But the judgment goes on, it is plain that some limits must be assigned, and this, both on the presumable intentions of Gour Kishore and by reason of the law. Upon one or two expressions which occur in this part of their Lordships' judgment, we shall have occasion presently to remark.
67. It is then pointed out that Bhowani Kishore had inherited, and had, in turn, had full power of disposition over the estate; that on his death he was succeeded by his wife, who would have been, as an heir, preferable to his natural brothers if he had had any. From this it followed that no one would, by being made a brother by adoption, take the estate from the widow, when a natural born brother could not have taken even a part.
68. His Lordship said, it was needless to consider whether Gour Kishore could have limited his son's interest, because, as a fact, he had not done so; and then stated: 'The question is, whether the estate of his son being unlimited, and that son having married and left a widow his heir, and that heir having acquired a vested estate in her husband's property as widow, a new heir [to Gour Kishore] can be substituted by adoption, who is to defeat that estate, and take as an adopted son what a legitimate son of Gour Kishore 'would not have taken.'' And this, their Lordships hold, could not be done, pointing out, however, that the case would have been otherwise if Bhowani had died unmarried, leaving his mother as his heir, for then the 'adoption' would have stood on quite different grounds. By exercising the power of adoption, she would have divested no estate but her own, and this would have brought the case within the ordinary rule; but no case has been produced, no decision has been cited from the text-books, and no principle has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated and divested.
69. We thus have a suit, to recover possession from the widow of B, on the ground that the plaintiff is an adopted son of A, who in his lifetime was B's father, dismissed by their Lordships on the principle thus concisely stated in Mr. Mayne's recent work on Hindu Law, page 161, that except in the cases specified, an adoption made to one person will not divest the estate of any one who has taken that estate as heir of another person.
70. If the objection had been taken that this judgment was not admissible as evidence or 'relevant' between the present parties, we might have had some difficulty, for while in the former suit the parties were opposed as heirs of Gour Kishore and Bhowani, respectively, in this they all make title under Bhowani, both widow and mother being out of the way.
71. But Mr. Woodroffe, as we understood him, contented himself with arguing, that it could not operate as res judicata, and, we think, it clearly could not, not merely because the parties are different, but because, in fact, their Lordships did not intend to decide that Ram Kishore could never be the heir of Bhowani, still less that he was not duly adopted. The expression 'the power was incapable of execution' must be considered with reference to the question which their Lordships had before them. They notice, indeed, an inclination of the Sudder Judges to hold that 'if Bhowani Kishore had left a son, or if a son had been lawfully adopted to him by his wife under a power legally conferred upon her, the power of adoption given to Chundraboli would have been at an end.' But their Lordships do not so decide, and it is very doubtful whether it could be so held, and whether the terms of the second permission from Gour Kishore are not wide enough to enable Chundraboli to adopt, in extinction of the issue either of the natural born son, or of the first to be adopted son. But we have no occasion to decide this. What has happened, being the death of Bhowani without having either had sons born to him or given any permission to adopt. If, therefore, Chundraboli, immediately on the death of Bhoobunmoye, had made an adoption and so divested her own estate, there would have been nothing in the judgment of the Privy Council, and nothing that we are aware of in the law, to prevent her doing that which her husband authorized her to do, and which would certainly be for his spiritual benefit and for that of his ancestors and even of Bhowani Kishore.
72. It has been pointed out in the case of Ram Soonder Singh v. Surbanee Dossee (22 W.R., 121; at p. 123): 'The broad proposition for which the learned Counsel contends will, in great many cases, defeat the essential object for which every Hindu desires to adopt, viz., the continuance of the spiritual benefit to be conferred upon him after his death. An adopted son attaining an age of sufficient; maturity, and by performing the religious services enjoined by the shastras, cannot exhaust the whole of the spiritual benefit which a son is capable of conferring upon the soul of his deceased father. Because these services are enjoined to be repeated at certain stated intervals, and the performance of them on each successive occasion secures fresh spiritual benefit to the soul of the deceased father (see note to v. 74 of Section 4 of Sutherland's Dattaka Mimansa, where these rights are fully described).'
73. With all respect, therefore, we imagine that Lord Kingsdown must have said by inadvertence, in reference to the idea of adopting a son to the greatgrandfather of the last taker, than at that time 'all the spiritual purposes of a son, according to the largest construction of them, would have been satisfied.' And again: 'Bhowani Kishore had lived to an age which enabled him to perform, and, it is to be presumed, that he had performed, all the religious services which a son could perform for a father.' There is really no time at which the performance of these services is finally completed, or at which the necessity for them comes to an end.
74. Then, if Chundraboli might have adopted at the date when Bhoobunmoye's death caused the inheritance to devolve on her, with the consequence of divesting her own estate, is there any reason why Ram Kishore, if we suppose him to have been regularly adopted, and those who came before him as heirs to Bhowani Kishore out of the way, should not, in that state of things, take the inheritance which the mother gives up to him, and should not, to use the words of Mr. Mayne, be rewarded by the estate for the services which he renders to the deceased
75. We think not. He had been adopted many years back, and, Chundraboli declared, had been performing the sradhs, turpun, parban, and debsevas, and there was 'no other man but him to offer oblation of cake and libation of water to her husband and his paternal ancestors and to herself;' and it seems to us, that although as heir to Gour Kishore, he could not displace the widow and heir of a subsequent full owner, and as heir to Bhowani he came after the widow, and the mother, he might, without objection, succeed when, by their successive deaths or surrender, he united in himself the capacities of heir of Gour Kishore and heir to Bhowani.
76. This conclusion answers the other question. The case is anomalous, but is reducible to rule. The adoption made Ram Kishore brother to Bhowani, and as a brother he would succeed in his proper place and order.
77. On all grounds, therefore, and every principle of equity and justice, we think the defendant was entitled to the judgment of the Court.
78. We consequently affirm the decision of the Subordinate Judge, and dismiss this appeal with costs.