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Harendra Nath Avasti Vs. Shibo Sundari Debi Chowdhurani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.378
AppellantHarendra Nath Avasti
RespondentShibo Sundari Debi Chowdhurani
Cases ReferredBhasba Rabidat Singh v. Inder Kunwar
Excerpt:
hindu law - will--adoption--power of curtailing right of prospective adopted son--maintenance of male member, separate, not allowable. - .....sundari dbeya chowdhurani to establish his claim to the property of his adoptive father, tarak nath avasti. the plaintiff claimed that his title to all the property movable and immovable left by tarak nath avasti might be declared, that the will of tarak nath avasti which purported to create life-interest in favour of the defendant and postpone the plaintiff's interest might be held to be invalid and inoperative; that it might be declared that defendant had by her conduct forfeited her right, if any, to hold possession of the property. the plaintiff also asked for an account, a receiver and other reliefs. the defendant denied the adoption and in other respects resisted the plaintiff's claim. the learned district judge has passed a decree in favour of the plaintiff declaring his title.....
Judgment:

1. This appeal arises out of a suit by the plaintiff, Harendra Nath Avasti, against his adoptive mother Siva Sundari Dbeya Chowdhurani to establish his claim to the property of his adoptive father, Tarak Nath Avasti. The plaintiff claimed that his title to all the property movable and immovable left by Tarak Nath Avasti might be declared, that the will of Tarak Nath Avasti which purported to create life-interest in favour of the defendant and postpone the plaintiff's interest might be held to be invalid and inoperative; that it might be declared that defendant had by her conduct forfeited her right, if any, to hold possession of the property. The plaintiff also asked for an account, a Receiver and other reliefs. The defendant denied the adoption and in other respects resisted the plaintiff's claim. The learned District Judge has passed a decree in favour of the plaintiff declaring his title to the property subject to the life-interest of the defendant, but in other respects, has thrown out the plaintiff's suit. The plaintiff has appealed. The learned District Judge advised the parties to be reconciled, and we also adjourned the hearing of this appeal in order that they might come to terms. Before us it was stated that defendant was willing to take the plaintiff back into her house as her son, but was not able or disposed to make him any separate allowance for his maintenance. The plaintiff declines to live with, his mother, we are, therefore, constrained to decide the case according to the law as we understand it.

2. There is now before us no contest as to the facts of the case which may be stated shortly as follows:-Tarak Nath Avasti died on 25th September 1878, leaving the defendant his widow him surviving. He was the last surviving male member of a Hindu joint family. For the purposes of this appeal it is conceded that the family is governed by the Mitakshara School of Hindu Law, and that the properties left by Tarak Nath Avasti were ancestral properties in his hands, Tarak. Nath Avasti left a will dated 23rd September 1878. It is addressed to his wife, the defendant. It purported to leave all his property to the defendant for her life and to confer on her authority to adopt a son. After her death the adopted son was in his right of sonship to be entitled to all the properties left by the defendant and the testator, and the defendant was to have no power of alienation. She was to pay a sum of Rs. 4 per mensem to Fuleshwari Chowdhurani, the testator's uncle's widow. Of this will the defendant obtained probate from the District Judge of Rajshahi on 31st March 1892. The judgment in the case which had commenced in 1889, was delivered on 4th November 1891. The grant of probate was hotly contested by Jadu Nandan Sukul, the natural father of the plaintiff and brother-in-law of the defendant but during the progress of the proceedings the parties came to an agreement. The defendant agreed to adopt the plaintiff, who was Jadu Nandan's second son, and aputradan patra was executed on 21st February 1890 by both parents of the boy. In that they expressly admitted the will of Tarak Nath Avasti. Though the defendant in her written statement denied that the adoption was duly effected, there is no doubt now that it was complete, and this appeal has been argued on that assumption. There can be no doubt also that in consideration of the defendant taking the plaintiff in adoption his father Jadunandan agreed to accept the will as genuine, and not to further contest the grant of probate. He must also be taken to have agreed that the provisions of the will should be upheld, namely, that the defendant should retain the property for her life, and that only on her death it should go to the adopted son. The plaintiff was about 3 years of age at the date of the adoption and attained his majority in 1905. On 29th May 1906 ho filed this suit.

3. It was argued before us, as it was before the District Judge, that the authority to adopt was not conferred by the will itself but was a verbal authority given before or contemporaneously with the will. There is no evidence in support of this contention except the wording of the will itself. It is true that the words ' verbal authority' are used but they are evidently employed in contradistinction to the document on a stamped paper, to which reference is made, we have no doubt that the authority to adopt was given by the will itself, and we have no evidence of any other authority * written or verbal.

4. The next question is whether the testator had power to make such a will curtailing the rights of his prospective adopted son. That he would have power to dispose of the property so as to defeat the claims of remote heirs appears certain (See Mayne's Hindu Law page 533). There are cases to show that where a Hindu makes a disposition of property either by will or deed, and as part at the same transaction takes in adoption a boy, whose natural father is aware at the disposition and assents to it, knowing that otherwise the adoption would not be made, such disposition will be good as against the adopted son (See Lakshmi v. Submmanya 12 M. 490; Ganapati Ayan v. Satithii Ammal 21. M. 10 and Basava v. Lingan Gonda 19 B. 428. A fortiori in a case like the present the provisions of the will, from which alone is derived the authority to adopt, should be upheld where the natural father admits and accepts the validity of those provisions. There is, moreover, clear authority for the proposition that if the parent of the boy when giving him in adoption expressly agrees with the widow that she shall remain in possession of the property for her life-time and the widow adopts the boy on those terms, the agreement will be binding on the son adopted. See Chitko Raghunath Rajadiksh v. Janaki 11 B.H.C.R. 199 where their Lordships pointed out that if that portion of the agreement which formed the main, if not the sole, consideration for the adoption were regarded as invalid, it would affect the validity of the whole contract, and the adoption itself could not be insisted on. This ruling was followed by Mr. Justice Farran, J. in the case of Vinayak Rav v. Juggannath Shankarsett Lakshmibai 11 B. 381 The Madras High Court has now taken the same view; See Visalakshi Ammal v. Sivaramien 27 M. 577. In the case of Bhasba Rabidat Singh v. Inder Kunwar 10 C. 556 : 16 I. A. 53 there is, no doubt, a remark of their Lordships of the Judicial Committee of the Privy Council which indicates that an agreement by the natural father could not affect the subsequent rights of his son, over whom his authority ceased upon the adoption. But the question there was as to the validity of the adoption, and not of such an agreement as we have now before us. Here the adoption was made in pursuance of the very will, which disposed of the property in favour of the widow, and the adoption would never have been made, had the disposition of property not been adhered to. That case, therefore, appears to us to be distinguishable from the present. Following the cases first cited we hold that the agreement by Jadunandan, in consequence of which the plaintiff was taken in adoption, is binding on the plaintiff, and that he has no right to the possession of the properties daring the life-time of the defendant. The only other question is whether he can claim a monthly sum by way of maintenance. We are clearly of opinion that he cannot. No authority has been, cited for the proposition that a male member of a joint Hindu family, who refuses to remain joint in food, is entitled to separate maintenance out of the family funds. The defendant is willing to receive and maintain the plaintiff if he will go and live with her, but this he declines to do. This portion of his claim is unsustainable. It was suggested in the plaint but not argued before us that the defendant had in some way by her conduct forfeited her rights both under the will and as widow of Tarak Nath Avasti. No such case has been made out for the plaintiff and we need not discuss it. We agree with the learned District Judge in the conclusion at which he has arrived and dismiss this appeal. In the circumstances of the case we direct that each party do bear her and his own costs respectively.


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