1. The plaintiff is the daughter of one Rakhal. She sued for declaration that the defendant No. 1, who is said to have been adopted by Nirmola (defendant No. 2), the widow of Bir Chandra, son of Rakhal who predeceased his father (Rakhal), had not been legally and validly adopted, and that the said defendant is not entitled to divest the plaintiff of her interest in the estate of her father, and for khas possession.
2. The defendant No. 2 Nirmola is the mother and certificated guardian of the adopted son.
3. The suit was contested by the defendant No. 2 for self and as guardian of her minor son, on the ground that the plaintiff was unchaste that permission was given to the defendant No. 2 by her husband Bir Chandra to adopt defendant No. 1 and that he had been accordingly adopted.
4. Both the Courts below have concurred in finding that the plaintiff is not unchaste, that the estate left by her father had devolved upon her and that she could not be divested by the alleged adoption of defendant No. 1. They further held that the adoption had not been proved. The suit accordingly was decreed in favour of the plaintiff.
5. The defendants have appealed to this Court.
6. It is contended before us on behalf of the appellant that the plaintiff Bhabani was entitled to the estate left by her father when it was found that she was not unchaste, and that the question of the adoption of defendant No. 1 could not affect the interest of Bhabani as the estate of her father bad already vested in her and that in the circumstances it was unnecessary to consider the question of the adoption of the defendant No. 1.
7. The learned Pleader for the appellant has drawn our attention to the passage in the judgment of the District Judge where he says; 'Holding that if the plaintiff establishes that she was not disqualified she must succeed, the principal question for me to deal with is the question of her chastity. If she succeeds on that point, it becomes unnecessary to go into the question whether Bir Chandra gave his wife power to adopt.' Then he proceeds to consider the question and after finding that the plaintiff was not unchaste, the learned Judge held that 'on her father's death the property vested in the plaintiff. This, in my opinion, disposes of the whole case, my view being that the law is that even if the defendant No. 2 was empowered by her husband to adopt and did adopt a son to him, this would not affect the right of the plaintiff in Rakhal's property which had vested in her before the adoption. But as it may be held by another Court that this is a wrong view of the law and as the question of the authority to adopt has been argued out, I will give my findings on that point.'
8. It is contended before us that the question of adoption ought not to have been gone into in the view that the learned Judge took of the right of the plaintiff and that the finding on the point should be expunged.
9. We do not think that this should be done. The defendants invited the decision of the Court on the question of adoption on the ground that by the adoption, the plaintiff was divested of the estate, and evidence on the point was gone into on both sides. The Court of first instance decided the question against the defendants, the defendants appealed and urged that the adoption was proved, and even in the grounds of appeal to this Court the same point is taken. It is true that the defendant No. 1 is a minor. But his guardian took the chance of a favourable decision, and after having been defeated in both the Courts she now asks us to expunge the finding in order that the defendant No. 1 MAY fight out the matter again when he comes of age.
10. The plaintiff has got a son who is a minor and who would succeed to the estate on her death if there were no adoption. However that may be, having regard to the circumstances, we do not think that the finding on the question of adoption should be expunged.
11. The appeal is accordingly dismissed with costs.