1. In the course of time the Jemo Raj family had divided itself into five branches called the Bara-taraf, Madhyam Turaf, Na-taraf, Ful-taraf and Chota taraf. In this appeal we are concerned with the Madhyam and the Na-tarafs only. Raja Saradindu Narayan Roy (called hereafter the Na Raja) was the proprietor of the Na-taraf. He had two sons Sibendu and Ardhendu. The proprietor of the Madhyam Taraf, Raja Purnendu Narayan had no male issue. He adopted Ardhendu, the youngest son of Raja Saradindu, and named him Rajendu, whose widow Anila Bala, is the appellant before us. Sibendu's wife is Santi Devi. Sibendu predeceased his father, the Na Raja, leaving two sons Amarendu and Dibyendu, who is the principal respondent in this appeal and was the plaintiff in the suit. It is his case that after the death of Rajendu he was adopted by Anila Bala and named Madhabendu. Rajendu and the Na Raja lived as members of a joint family till about 1926 when there was separation. While living jointly with the Na Raja Rajendu executed a will (Ex. C) on 16th May 1919. Amarendu and Dibyendu were appointed executors, and Anila Bala was to be the executrix during their minority. A maintenance allowance of Rs. 100 per month was provided for Anila Bala. She was given the power to adopt a son, but that power was limited both in regard to time and choice. If Dibyendu was alive she was to adopt him and no one else. If he and other sons of the Na Raja were dead then she could adopt from outside the Jemo family. On adoption the adopted son was to get his estate and would be entitled to possession from the date of adoption. Anila Bala was directed to adopt Dibyendu within eighteen months of the testator's death. If she failed to do so his estate would vest in Amarendu and Dibyendu in equal shares, and Anila Bala was to get the monthly allowance of Rs. 100 only. Other provisions of this will are not material to this appeal.
2. After separation from the Na Raja, Rajendu executed his second will (Ex. O-1) on 11th August 1926. By it he revoked his earlier will, Ex. O. He appointed Anila Bala as executrix and his brother-in-law (sister's husband) Bejoy Gopal Roy as executor. He gave a life estate in the whole of his estate to Anila Bala. She was given authority to adopt but her power was not limited. She could exercise it at any time and could adopt anybody she pleased. If Rajendu had a natural born son (aurasa son) that son was to get the estate in possession on attaining majority, but the enjoyment of the estate by the adopted son was to be postponed till the death of Anila Bala. The net effect is that Anila Bala's life estate was to cease on the natural born son attaining majority but was to continue till her death when an adopted son only entered the field. We do not set out the effect of the will where a natural born son came into existence after a boy had been taken in adoption, as that contingency has not happened. Rajendu died on 23rd December 1927 without leaving any issue. It appears from the evidence that before his death he was not on good terms with the Na Raja and after his death the relations between his widow Anila Bala and the Na Raja did not improve.
3. Shortly after the death of Rajendu, Anila Bala expressed her intention of adopting a son from the Chota Taraf. That brought matters to head. Amarendu made an application before the District Judge on 30th April 1928 for probate of Rajendu's first will, Ex. C (Case No. 18 of 1928). Dibyendu, then a minor filed a suit against Anila Bala and others through his mother and next friend, Santi Debi, for restraining Anila Bala from adopting the son of the Chota Taraf. In that plaint it was alleged that Anila Bala was stating that the will Ex. O had been revoked by Rajendu by a later will which she was attempting to set up. Anila Bala in her turn opposed the application for probate of the will Ex. O. filed by Amarendu and on 25th August 1928 made an application before the District Judge for probate of Rajendu's second will Ex. O-1 (Case No. 23 of 1928). Amarendu opposed this application and on 3rd April 1929 made an application in this case, case No. 23 of 1928, for the appointment of an administrator pendente lite. Patit Paban Chowdhury, the father of Anila Bala, who had shortly after the death of Rajendu, taken service under the Na Raja at the latter's request and who had leanings towards the Na Raja was appointed administrator pendente lite by an ex parte order dated 25th May 1929. He was ordered to give security to the extent of one lac of rupees and the Na Raja stood security for him for that amount.
4. Anila Bala's application for probate was postponed from time to time, from 19th June 1929 to 2nd January 1930 on her applications. The ground stated in those applications was that negotiations for compromise were proceeding. On 2nd January 1930 a joint application for postponement of the case to 6th January 1930 was made by Anila Bala and Amarendu in which it was stated that almost all the terms of the compromise had been settled between the parties and if the short adjournment prayed for were granted there was every chance of the case being settled. On 4th January 1930 Anila Bala signed three documents : (1) An arpannama by which some items of immovable property were dedicated to the idols Sri Sri Radha Krishna Jius (Ex. 3-II 173). This document was executed in the morning according to the version of both sides, By it Anila Bala became the shebait. (2) A deed of adoption (Ex. 4-II 178) in which it was admitted that Anila Bala had taken in adoption Dibyendu and had named Madhabendu. There is difference between the parties as to the time of execution. Anila Bala's case is that it was executed in the morning while the case of the other side is that it was executed at about 2 P. M. (3) A petition of compromise (I-85) intended for being filed in probate case No. 23 of 1928.
5. There were seven terms in it. The fact of adoption of Dibyendu was admitted in para. 1. Amarendu undertook to withdraw his application for probate of the first will of Rajendu. Anila Bala was to get probate of the second will, her father Patit Paban was to remain as manager of the estate till Madhabendu attained majority. Anila Bala would be bound to bring up, educate and marry the minor Madhabendu, and in case the latter died without leaving an heir Anila Bala bound herself to adopt another descendant of the Na Raja. The parties were to bear their respective costs. There is a similar difference between the parties as to the time of the execution of this document as in the case of the deed of adoption. This document was filed in the probate cases on 6th January 1930. Amarendu's application for probate of the first will was withdrawn. On 13th January 1930, an affidavit in proof of the second will was filed and an order for the issue of probate of that will to Anila Bala was made on that date. Temporary probate was issued to her on 2nd April 1931 and on her paying the full probate duty later on probate was issued to her on 18th May 1932. On 18th February 1933, Santi Debi acting on behalf of Madhabendu made an application for revocation of the probate granted to Anila Bala. This application was not eventually pressed and was dismissed on 21st March 1934. Madhabendu attained majority in October 1935. Patit Paban ceased to be the administrator pendente lite in August 1930 but continued to be the manager till 1932. From that time Anila Bala was in charge of the management. Within a year of his attaining majority, Madhabendu tried to take forcible possession from Anila Bala. Those acts of his resulted in criminal proceedings. Having been baffled in his attempt to take forcible possession he filed this suit on 21st May 1937, wherein he prayed for (a) a declaration that he was the adopted son of Rajendu (b) for a declaration that he was the full owner of the whole estate as left by Rajendu, and as the life estate given to Anila Bala by the second will of Rajendu had been completely destroyed by the compromise effected on 4th January 1930 he was entitled to possess and enjoy the estate, and (c) for an injunction restraining Anila Bala from exercising acts of management over the estate left by Rajendu and from interfering with his management of the same.
6. In the plaint no mention is made of the Arpannama. The effect of the compromise is stated in para. 16 in a manner which does not indicate that the Arpannama was in any way connected with or was a material part of the compromise as pleaded in that paragraph. No schedule of properties was appended to the plaint. The plaintiff being later on required by the Court to file a valuation statement of the properties in suit under the provisions of Section 8A, Court-fees Act, filed a statement in which he included the properties dedicated by the Arpannama to the said idols, as being properties in suit also. In her written statement Anila Bala pleaded inter alia (i) that she never adopted Dibyendu (ii) that she put her signature on the Arpannama, on the deed of adoption and on the petition of compromise at the same time under undue influence and coercion (iii) that no proposal was ever made to her, not even a hint uttered, that she was to give up the life-estate conferred on her by the second will of her husband. By an additional written statement, she pleaded that the alleged adoption of Dibyendu was invalid in law. On this state of the pleadings the parties went to trial.
7. At the trial, the case of the plaintiff as finally developed can be stated in the following manner : Negotiations for compromise between Anila Bala and the Nataraf started about May 1929. Anila Bala's maternal grandfather Sarada Prosanna Boy, and her maternal uncle, Kali Prosanna Roy were not then on the scene. They appeared in the scene later on towards the fag-end of December 1929. During the period May to December 1929, her father Patit Paban and her brother Shiba Prosad were there, Sabitri Debi was there as also other members of the Na-taraf. By the end of December 1929, the negotiations had reached this stage, namely that Anila Bala agreed to take Dibyendu in adoption. The difference between the parties at that stage was only on the point as to whether the first or the second will of Rajendu was to be probated. Anila Bala insisted on the probate of the second will but Amarendu insisted on the probate of the first will of Rajendu. To compose this difference between them the services of Sarada Prosanna were requisitioned. He came accompanied by his son Kali Prosanna to the Jemo Rajbati on 30th or 31st December 1929 and saw Anila Bala. Anila Bala wanted to have the probate of the second will, as, according to her, her consent to the probate of the first will would imply an admission on her part that her husband was a drunkard and a fickle-minded man. Sarada Prosanna thereupon pointed out the unfair- ness towards the adopted son in case the second will was probated without any modification of its terms. He pointed out that Dibyendu would lose his rights in his natural family on adoption and that he would get nothing from the estate of Rajendu on account of the life estate of Anila Bala. He suggested a via media. The second will would be probated provided she gave up the life estate conferred on her by the said will on taking a maintenance of Rs. 300 to Rs. 400 a month. Anila Bala in reply said that she would not want maintenance, but would be satisfied if properties yielding rupees 5000 a year were dedicated to the idols and she made the shebait, the underlying idea being that the surplus of income from the debutter properties after meeting the costs of worship would be sufficient to enable her to maintain herself. That proposal of Anila Bala was accepted (see Kali Prosonno I 381, Sabitri Debi I 217-18, Santi Devi I 241). The Arpannama was drawn up and it was arranged that it would be executed first. It was to have been executed on the evening of 3rd January 1930, but as at the last moment Anila Bala objected to some items of property to be included therein, it was not executed on that date, but was executed in the morning of 4th January 1930. The adoption ceremony was then begun at about 8 o'clock in the morning and concluded at about 1 P. M. or so and immediately thereafter Anila Bala signed the adoption deed and the petition of compromise at the same sitting. Many witnesses who were then present attested the adoption deed and some witnesses who came later on attested the same on Anila Bala acknowledging execution. According to this version the Arpannama was an essential part of the compromise.
8. The learned Subordinate Judge has held that the adoption was in fact made, that it is valid in law, that Anila Bala had failed to prove her ease of undue influence and coercion, that the compromise was on the terms as stated by the plaintiff's witnesses, that the Arpannama, the deed of adoption and the petition of compromise had been adequately explained to her and she had signed them after knowing fully their effect. According to him by the petition of compromise, Madhabendu got on adoption the rights of a natural born son as defined in Rajendu's second will. He accordingly made a decree in favour of the plaintiff on 27th February 1939.
9. Anila Bala has preferred this appeal against this decree. Mr. Sarat Bose appearing on her behalf has not challenged the fact of adoption and has not pressed the case of undue influence and coercion. He has urged the following points only : (1) the adoption is invalid in law; (2) the effect of the compromise has only to be gathered from the terms of the petition of compromise; no oral evidence being admissible to supplement or vary its terms; (3) that on a construction of the said petition of compromise, it must be held that Anila Bala had not given up the life estate conferred on her by paras. 3 and 4 of the will, Ex. C-1; (4) that the compromise as set up by the plaintiff is not binding on her, a par-danashin lady; (5) that at any rate it was not a term of settlement that Anila Bala was to give up her life-estate on the adoption or on the adopted son attaining majority, and (6) that the suit as framed is not maintainable in law.
10. The validity of the adoption depends solely upon the question as to whether Shanti Debi, the natural mother of Dibyendu could have been married in her maiden state by Rajendu. The parties are Brahmins. Special custom is not alleged. The parties being of the twice born class, the following rules are applicable : (1) The bridegroom and the bride must not be of the same gotra and pravara. (2) The bride must not be a descendant within the seventh degree from the bridegroom's father and of the latter's six male ancestors. (3) She must not be a descendant within the fifth degree from the bridegroom's maternal grandfather and of the latter's four male ancestors. (4) She must not be a descendant within seven degrees of the bridegroom's father's bandhus, and of the latter's six male ancestors, and (5) she must not be a descendant within five degrees of the bridegroom's mother's bandus and of the latter's four male ancestors.
11. To these rules there is an important exception. It is that if the bride is removed by three gotras, she would be eligible for marriage even if she falls within the prohibited degrees as defined in rules Nos .II to V. The admitted pedigree is as follows:
RAJA MOHANANDA (Gautam Gotra)
| | |
Raja Narendra Narayan=Bhaba Tarini Son-S1 Daughter, Anna Purna (Sankrit Gotra)
| (3) |
| Son-S2 |
________________ Daughter, Jatindra Mohini (Kasyap Gotra)
| | (4) |
Sarajendu Purnendu |
| (Pundarik Gotra) |
Rajendu Do daughter, Santi Debi
12. S2 is Rajendu's pitri bandhu, being the maternal uncle's son of his father, Purnendu. Santi Debi is the third in descent from the paternal grandfather of S2. She accordingly comes within the prohibition of rule No. IV and unless she comes within the exception, the trigotra rule as it is called, she would not have been eligible for Rajendu. Rajendu's gotra was Pundarik, the gotra of S2, S1 and Raja Mahananda was Gautam. Anna Purna on marriage adopted her husband's gotra which was Sankrit, Jotir Mohini on her marriage got her husband's gotra which was Kasyap and Santi Debi in her maiden state had the same gotra, namely Kasyap, the gotra of her father. Counting Rajendu's gotra as the first, there are four gotras altogether and so she was removed from Rajendu's gotra by three gotras. If, therefore, Rajendu's gotra be taken into the computation for the trigotra rule, Santi Debi would have been eligible for Rajendu in spite of the fact that she fell within the prohibition of rule No. IV. Whether that gotra can be taken into consideration or not is therefore the vital question. If it can be Santi Debi would have been eligible, if not, she would not be eligible for Rajendu. Both Guru Das Bannerjee and Mr. Shyama Charan Sarkar have expressed the opinion that in the matter of computation for the trigotra rule the bridegroom's gotra has to be reckoned. Both state the scope of the exception in the following manner : 'A girl who is removed by three gotras from the bridegroom is not unmarriage-able, though related within seven or five-degrees as above described.' (Tagore Law Lectures on Marriage and Stridhan, page 64, Edn. 4 and Vyavastha Darpana, page 662, Edn. 2). The illustration given at the top of p. 65 of the said Tagore Law Lectures and that given at the foot-note of page 662 of the Vyavastha Darpana (Edn. 2) make it clear that if on proceeding from the boy's gotra to that of the girl's there are four gotras in all the girl would be regarded as being removed by three gotras from the boy and would be eligible for marriage. Those illustrations make it clear that it will be legitimate to take into account the boy's gotra in the matter of calculation. It has, however, been contended by the learned advocates for the appellant that the trigotra rule as expressed in general terms by Sir Gurudas Bannerjee and by Mr. Shyama Charan Sarkar is not what has been understood and defined by Baghunandan, where the connexion between the boy and the girl is through a bandhu. In that case it is said that the counting of gotras must commence from the Bandhu's gotra, or the Bandhu's maternal grandfather's gotra as the case may be, and not from the gotra of the boy or of his father (which is the same). It is further said that Sir Gurudas Bannerjee in a way recognized this at the passage at the bottom of p. 64 of his Tagore Law Lectures (Edn. 2). In support of his contention the appellant's advocate has placed reliance upon the twenty-first stanza of Raghunandan's Udhahatattwa the material portion of which as translated in this Court at page 512, Part 1 of the paper books is as follows:
In counting the three gotras with respect to the descendants of a Bandhu it should be commenced from the Bandhus own gotra but in counting the three gotras with respect of the male ancestors of the Bandhu the three gotras should be counted commencing from the Bandhu's gotra, where such Bandhu is the father's maternal uncle's son or the mother's maternal uncle's son and that in case of other Bandhus the counting should commence from the Bandhus maternal grandfather's gotra.
13. In our judgment the illustrations given by Raghunandan immediately after this passage bring out the meaning of this passage. The starting point is only indicated, but the passage does not prohibit that in the course of counting from that starting point the counting should proceed from the Bandhu only towards the girl's family and not towards the boy's. The boy's gotras may not be taken into account, but we do not understand why on this passage the boy's father's gotra which is the same as that of the boy, should not be reckoned. The first illustration of Raghunandan is represented by the following table: (M represents males, F females in the table)
| | |
Roy M(B) F
14 (B) is the father's bandhu, being his (father's) paternal aunt's son. Raghunandan says that the girl would have been eligible for the boy if the counting commenced from M(B)'s gotra, but as the counting has to be made from M(B)'s maternal grandfather's gotra according to the rule formulated, because, the bandhu is not the father's maternal uncle's son, she is not eligible as she falls within three gotras. In the illustration the girl would not be beyond three gotras on a counting being made from M(B)'s gotra unless the gotra of the boy or of his father, (which is the same) were taken into consideration. We accordingly hold that the rule as formulated in Exception No. 1 in Sir Gurudas Banerjee's Tagore Law Lectures at p. 64 (Edn. 2) is a correct interpretation of Raghunandan and as in the case before us there are four gotras in all in proceeding from the gotra of Rajendu's father to the gotra of Santi Debi's father, the marriage between Santi Debi and Rajendu would have been valid. The adoption of Dibyendu by Anilabala is accordingly valid in law. The most important question in this case is what were the terms of the compromise. We have set out the plaintiff's version of it in the earlier part of our judgment and we have to determine whether that version is true. (After going through the evidence their Lordships proceeded.) In our judgment it has been established that four of the terms of the compromise were (1) that Dibyendu was to be adopted, (2) the second will of Rajendu, Ex. O-1, was to be probated, (3) Patitpaban was to continue in management under Anilabala, as executrix, and (4) Anilabala was to be the shebait of the deities to whom certain properties were to be dedicated.
15. The material question on which there is a difference is whether Anilabala also agreed to give up her life estate on the adoption being made or on the adopted son attaining majority. The plaintiff's version is that at the last moment Mr. Saradapra- sanna Roy induced Anilabala to agree to that term. It is also the plaintiff's case as developed in the evidence that as the surrender of Anilabala's life estate on adoption required a provision for maintenance for her Saradaprosanna proposed to her a monthly maintenance of Rs. 300 to Rs. 400 but Anilabala said that a debutter yielding Rs. 5000 a, year with her as the shebait would suffice for her maintenance. There are inherent improbabilities in this version which we now proceed to notice.
16. According to plaintiff's witness, Santi Debi, Saradaprosanna Roy and all present there suggested that it should be clearly mentioned in all the proposed documents,-in the arpannama, in the deed of adoption and in the petition of compromise,- that Anilabala was to give up the life estate as soon as the adopted boy would attain majority (I-289-290). It is further in evidence that the drafts of the solenamah and the deed of adoption were prepared from the dictation of Sarada Prosanna Babu himself (Ashutosh Chowdhury I 317). The arpannama only was drafted by Bakhal Babu. None of the drafts have been produced. In the arpannama and the deed of adoption there is no reference even by implication to Anilabala's life estate and its surrender. In the petition of compromise there is no-mention of it in clear ternls. That is one reason which weighs with us in not accepting the plaintiff's versions on this question. The second reason which weighs with us is that nobody on behalf of the plaintiff says that in his explanation to Anilabala Bakhal Babu drew the lady's attention to the terms of Rajendu's will, that she had a life estate under it and under the terms of the will she was to have the life estate even on an adoption being made. The third and the most convincing reason is that if the surrender of the life estate was an essential term, as is the case of the plaintiff now, it would have been mentioned separately as an express term or mentioned clearly in one of the seven terms of the petition of compromise. A little addition to the first or fourth term of the petition of compromise as drafted would have been sufficient. The fourth reason is that nothing is stated in the arpannama about the personal allowance that the lady was to receive as shebait. The case that the surplus profits of the debutter after meeting the debsheba expenses was intended to provide maintenance of Anilabala is not made in the plaint. The arpannama is not even mentioned there. That that was not the case of the plaintiff is apparent from the way in which he conducted his case in Court. The first witness examined on his behalf was Sabitri Debi. In her examination-in-chief she stated nothing about this aspect of the arpannama. The learned pleader for the defendant wanted to rely in his argument upon the fact that the story of the surrender of the life estate by Anilabala was highly improbable as no provision for her maintenance had been made in the compromise petition. He accordingly put questions to Sabitri Debi in cross-examination on that aspect of the case on 3rd May 1938. In answer, she stated that Sarada Prosanna proposed to Anilabala a monthly maintenance of Rs. 300 to Rs. 400 but Anilabala preferred to have a debutter. All the witnesses of the plaintiff who were examined after Sabitri Debi then gave this version about the Arpannama in their examination-in-chief, which Sabitri Debi had given only in her oross examination. The Arpannama was an important document according to the plaintiff's case as developed in Court. His case about it was not only not pleaded. in the plaint, but what is more he wanted by his suit to get the properties dedicated to the deities by the Arpannama out of the possession and control of Anilabala. He included them in the valuation statement that he gave of the properties in suit. The Arpannama properties are items 3, 11, 13, 16, 17 and 18 of that valuation statement which has been printed at pp. 111 to 128 of Vol. 1 of the paper book. It is only when in the course of the argument the learned pleader for Anilabala pointed out that the plaint taken with that valuation statement destroyed the plaintiff's case that the debutter properties included in the Arpannama were intended to provide maintenance to Anilabala for her life that the plaintiff made an application for excluding the said properties from the suit, ascribing their inclusions in the valuation statement to the mistake of unnamed officers of his. That application made on 21st January 1939 (I 506) was not supported by an affidavit. The reason for inclusion in the valuation statement given in that application appears to us to be false. We accordingly hold that it has not been established by the plaintiff that in her talks with Sarada Prosanna Babu or with others Anilabala had agreed to give up her life-estate either on adoption or on the adopted son attaining majority resting herself satisfied with Arpannama properties only. It seems to us to be probable that the suggestion of the Arpannama came from the Na Taraf in order to induce Anilabala, a Hindu widow who had just then returned from pilgrimage to holy places with thoughts more directed to the next world, to a reasonable frame of mind, so that she may consider the proposal for adopting Dibyendu and not spurn at and summarily reject any offer for compromise coming from Na Taraf which she had done in the past.
17. The other aspect of the matter that has to be considered is the effect of the compromise petition. That was the final document and in our judgment the rights of the parties are to be determined on that document and that document only, provided of course that it was executed under circumstances which would make it binding on her, a pardanashin lady. The document was executed after the adoption. It recites that fact and states that the adoption had already been made in consideration of the compromise of both the probate cases, namely, the one filed by Amarendu for probate of Rajendu's first will and the other filed by Anilabala for the probate of Rajendu's second will. The recital further states that the adoption had been made in the interest of a natural born son. That phrase does not necessarily imply that the adopted boy was to have the same right as had been conferred on a natural born son of Rajendu by his second will. 'What the rights of the adopted boy would be vis-a-vis the property rights of Anilabala is not defined either in the deed of adoption or in this document. The former deed (Ex. 4-2 178) only states that boy Dibyendu had been taken in adoption by Anilabala and so had become the son of her husband and all rights of Santi Debi over him had ceased. The effective and operative part of the petition of compromise does not confer on Dibyendu any right of immediate enjoyment or enjoyment on attaining majority by destroying or curtailing the life estate conferred on Anilabala by her husband's second will and which according to the terms of that will (which was to be probated according to the compromise) was not to be divested on adoption. We therefore hold on the construction of the petition of compromise that her life-estate was not taken away either on adoption or on the adopted son attaining majority. Even if the phrase 'in the interest of a son born of Anilabala's womb' used in the recital has the effect contended for by the plaintiff we cannot hold Anilabala to be bound by the compromise, for that was an essential term and no body explained to her the full effect thereof. There is no evidence that at the time of the explanation of the document by Rakhal Babu, the latter brought to the notice of Anilabala the substance of Rajendu's second will, and explained to the lady that that will conferred on her a life estate which was to last even on adoption and that by that phrase in the petition of compromise she would be losing that interest. In the absence of such clear statements by Rakhal Babu we do not think his explanation of the document to be adequate for that purpose. It would not in our judgment be enough to bind the lady if Rakhal Babu had simply stated that the adopted boy would become the owner on attaining majority or that her life estate would cease without explaining to her her position under the terms of the second will.
18. Even if the plaintiff had established his case that he had an estate which he was entitled to enjoy on attaining majority we have grave doubts about the maintainability of his prayer for injunction. Anilabala was in possession of the properties in the assertion of her own right. That was quite apparent to the plaintiff. Before the suit the plaintiff wanted to take forcible possession but was unsuccessful. After filing the suit he applied for the appointment of a receiver. In his order on the said application, the Subordinate Judge found that Anilabala was in possession not only as an executrix but also in her own right as legatee (I. 160 at 161). In spite of that finding, the second prayer in the plaint was not amended and possession prayed for. The reason why such a course was not adopted by the plaintiff is obvious. If he had amended his prayer in that manner he would have had to pay ad valorem court-fees on the market value of the properties in suit. It could not have proceeded on the basis of the comparatively small court-fee that had been affixed by him on the plaint. The suit as framed is a suit for declaration with a prayer for injunction. The first question is whether in this case where the plaintiff is out of possession injunction could be regarded as 'further relief' mentioned in the proviso to Section 42, Specific Relief Act. And second question is, assuming that a prayer for injunction would be 'further relief' within the meaning of that section in such a case, whether the Court in its discretion would grant it to a plaintiff out of possession and against the defendant who is in possession. The cases establish the proposition that 'further relief' mentioned in the proviso to Section 42, Specific Relief Act, must be 'relief in relation to the legal character or right as to property to which the plaintiff is entitled to and whose title to such character or right the defendant denies or is interested to deny and that relief must also be appropriate to and necessarily consequent on the right or title asserted' : Joy Narain Sen Ukil v. Srikantha Roy ('22) 9 A.I.R. 1922 Cal. 8.
19. On this principle where the plaintiff whose title is denied by the defendant is out of possession and the defendant is in possession, the 'further relief' would be recovery of possession and a suit for declaration of title will not be maintainable unless the plaintiff prayed for possession also. If, however, the plaintiff is out of possession but the defendant is not in possession or is not in a position to deliver possession to the successful plaintiff injunction would be the further relief. This proposition has been laid down by the Judicial Committee of the Privy Council in Sunder Singh-Mullah Singh Sanatan Dharma High School Trust v. Managing Committee, Sundar Singh-Mullah Singh Rajput High School . On the observations made by Lord Thankerton in that case it may be urged that where the plaintiff is out of possession and the defendant is in possession or is able to deliver possession to the plaintiff 'further relief' would be recovery of possession and if such relief is not claimed the suit would be a bad suit. In this case, however, we prefer to rest our decision on the second point we have indicated above. Even if injunction could be considered to be further relief within the meaning of the proviso to Section 42, Specific Relief Act, we would not have granted it to plaintiff in the exercise of our discretion even if he had established his right to present enjoyment of the estate, as he could have prayed for recovery of possession, on the principle formulated in Rathnasabapathi Pillai v. Ramasami Aiyar ('10) 33 Mad. 452.
20. As on the merits we have found that the plaintiff is not entitled to possession, we think that he ought to get a declaration that he is the adopted son of Rajendu. As Anilabala had denied the factum and validity of the adoption that is the only relief he can obtain. The result is that this appeal is allowed in part. It is declared that the plaintiff is the adopted son of Rajendu Narayan Roy. On the finding that the life-estate conferred on defendant 1, Anilabala Debi, by the second will of Rajendu Narayan Roy is still subsisting and will subsist during her life-time, the prayer for injunction made by the plaintiff is refused. As the success is divided, the parties must bear their respective costs throughout.