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Lunkurn Rampooria and ors. Vs. Birji and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Reported inAIR1931Cal219
AppellantLunkurn Rampooria and ors.
RespondentBirji and ors.
Cases ReferredRuvee Bhudr Sheo Bhudr v. Roopshunker Shunkerjee
Excerpt:
- .....the terms of the consent decree in the previous suit. it alleges that in 1912 before the consent decree punamchand had executed a deaf cancelling his adoption and relinquishing all his rights as the adopted son and that that cancellation was duly confirmed by the bikaner durbar. it alleges further that choutmull loft a will and that all the properties of choutmull. were his self-acquired and separate properties and it claims that the unit cannot be prosecuted while the previous consent decree stands and that it is baned by limitation.7. now, on this suit coming before the learned judge on the original side he directed, so far as i can see without opposition, that two issues be tried in advance of the others. issue 1 was:whether the decree in suit no. 315 of 1912 not having been set.....
Judgment:

Rankin, C.J.

1. This suit concerns the estate of one Choutmull, a Hindu governed by the Mitakshara school, who died in 1918. It appears that he had three brothers one Bridhichand who does not matter for the present purpose and two others called Ganeshdas and Choonilal. Choutmull had a son Hamirmull who was married to Mt. Birji, defendant 1 in the present suit. Hamirmull died in 1900. in the lifetime of his father and it appears that, in 1906, his widow Mt. Birji adopted or purported to adopt to him one Punamchand who is a defendant in the present suit. It is alleged by the plaintiffs that the Bikaner Durbar confirmed this adoption in October 1906. In March 1912 Punamchand and his four sons who are the plaintiffs in the present suit brought a suit (No. 315 of 1912) against Choutmull, Hazarimull, son of Choutmull's brother Choonilal and Thanmull, son of adopted son of Ganeshdas. At that time, all the present plaintiffs were under age and Punamchand brought the suit on his own behalf and also on behalf of his sons as their next friend. The purport of that suit was to allege that there was a certain joint family business in Calcutta which had been established out of the joint estate and out of funds belonging to the joint family of which Choutmull was a member. It was said that Punamchand and his sons by reason of Punamchand's adoption to Hamirmull in 1906 were interested in that joint family business. A declaration was asked that the plaintiffs between them were entitled to a 5/18ths share and reliefs were sought by way of partition and otherwise. The suit having been filed in March 1912, Choutmull filed his written statement in September of that year. He did not dispute that there was some ceremony or transaction purporting to be an adoption of Punamchand in 1906 but he denied the validity of the adoption inter alia on the ground that in 1906 Punamchand was about 24 years old and had two sons the present plaintiffs 1 and 2 at the time of the alleged adoption. Prom the plaint in the present suit it appears clear that, in 1906, the first two of the present plaintiffs had been born. Choutmull in addition set up a document purporting to govern the adoption of Punamchand according to. which Mt. Birji reserved right to herself to allow or disallow the adoption at any later time and to pay to Punamchand a one-third share of a certain interest in this business as a term of his getting no other interest by reason of the adoption. Choutmull alleged that the business referred to in that plaint was a mere contractual partnership and his interest therein was a mere self-acquisition. He set up a custom to cancel the adoption and he also said that, in that very year 1912, Punamchand had purported to cancel his adoption and that this cancellation had been confirmed by the Bikaner Durbar. That the Bikaner Durbar did purport to confirm the cancellation of the adoption appears from the terms of settlement to which I shall shortly refer.

2. Now, the previous suit No. 315 of 1912 ended in a consent decree. The Court certified that the compromise was for the benefit of the infants and the terms upon which that suit was compromised have been put in. By Clause 1, Punamchand accepts the cancellation of his adoption by Mt. Birji and agrees not to contest the order of the Bikaner Raj cancelling the adoption. By CI. 3, Punamchand on behalf of himself and his minor sons accepts the statement of Choutmull that he did not inherit any ancestral fund or property whatsoever and that all his property is self-acquired property. The clause goes on to say:

and the plaintiffs never acquired nor have now any right, title or interest in and to the estate and effects of the said Choutmull or of his adopted son Hamir and Hazarimull or of the said Mt. Birji.

3. By Clause 4, Choutmull was to pay to Punamchand on behalf of himself and his minor sons Rs. 1,90,000:

in full satisfaction of the claims of all the plaintiffs, if any whatsoever, which the said Punamchand or his sons may now have or may hereafter have by reason, of the adoption of the plaintiff Punamchand by Mt. Birji.

4. It is clear enough from the terms of the consent decree that the Rs. 1,90,000 were paid and this has not been disputed. It further appears, according to the contention of the present plaintiffs, that in 1916 Mt. Birji purported to adopt Kanhaialal a defendant in the present suit. In 1918 Choutmull died and, on 13th May 1926, this suit was instituted.

5. Punamchand in the present suit is made a defendant, the allegation of his sons being that the plaintiffs called upon their father to join them in instituting this suit but that the latter paid no heed to such request and failed to join them It is not a very convincing explanation in the case of a suit that must result to the benefit of Punamchand if it results to the benefit of the plaintiffs The plaint says nothing about the consent decree above referred to except this, that Punamchand purported to cancel on his own account his adoption by Mt. Birji. It found upon the impossibility of cancelling an adoption. It claims that the plaintiffs and their father Punamchand are entitled to the estate of Choutmull. It alleges that Mt. Birji and Kanaihalal are, after the death of Choutmull, in possession of his estate and it asks that they may be offered to make over the estate to the plaintiffs and their father Punamchand.

6. The written statement of Mt. Birji sets up allegations as, to the adoption of Punamchand having been invalid, as to its having been cancelled and it sets out the terms of the consent decree in the previous suit. It alleges that in 1912 before the consent decree Punamchand had executed a deaf cancelling his adoption and relinquishing all his rights as the adopted son and that that cancellation was duly confirmed by the Bikaner Durbar. It alleges further that Choutmull loft a will and that all the properties of Choutmull. were his self-acquired and separate properties and it claims that the unit cannot be prosecuted while the previous consent decree stands and that it is baned by limitation.

7. Now, on this suit coming before the learned Judge on the original side he directed, so far as I can see without opposition, that two issues be tried in advance of the others. Issue 1 was:

Whether the decree in Suit No. 315 of 1912 not having been set aside, the plaintiffs can maintain the present suit.

and issue 2 was:

if the said decree is binding on the plaintiffs, are they entitled to any reliefs ?

8. The Advocate-General for the defendants put in certain documents, namely the plaint, the written statement and the decree in the previous suit and a copy of the order of the Bikaner Court. From the minute which is printed in the paper-book, it would appear that Mr. B. K. Ghose for the plaintiffs said that he was not seeking to set aside the decree but that he was contending that, in spite of the decree, the plaintiffs were entitled to the reliefs sought in this suit. The learned Judge by his judgment has held, in effect, that without first setting aside the consent decree, this suit is not maintainable. From this decision of the learned Judge, the present appeal has been brought and I am of opinion that that decision is entirely correct.

9. It has been contended on behalf of the appellants, first, that it is a proposition sound according to the Mitakshara law that a person who has been validly adopted cannot renounce that state. That proposition appears to me to be established upon authority. The first case in which that proposition appears to have been affirmed is the case of Ruvee Bhudr Sheo Bhudr v. Roopshunkar Shunkerjee [1824] 2 Bor. Rep. 656. In that case, the adopted son, at the time of the suit, was still disclaiming any desire to take or right to take the property of his adoptive father and the property in question being separate property, it was ruled that it went to the widow as the next heir, failing the adopted son, but it was held that, a valid adoption having taken place, the position of the adopted son could not be renounced. In 1875, Westropp, C. J., affirmed the same doctrine in Lakshmappa v. Ramata [1875] 12 Bom. H.C. 365. It was re-affirmed in '393 in the case of Mahadu Ganu v Bayaji Sidu [1893] 19 Bom. 239, a case in which the adopted son purported to, renounce his adoption by an agreement, with the widow in her lifetime. Now, founding upon this proposition, it was contended before us that for Punamchand to purport to cancel his adoption was to purport to do something which the law does not allow. From that proposition, it was contended that, although this settlement of disputes between several parties-some not parties to this case-was incorporated in a decree, this Court for the purposes of the present suit was entitled to ignore not only the term by which Punamchand accepted the cancellation of his adoption but the other terms by which the plaintiffs agreed that they never acquired nor had now any right, title or interest in and to the estate and effects of Choutmull. This latter contention was maintained by saying that in Mahadu Ganu's case, it was laid down that, although an adopted son might disclaim the inheritance, the effect of that would merely be to operate as a transfer to the person with whom he was bargaining; and that, in this case, the position was that the consent decree must be regarded as a mere transfer back to Choutmull of the interest which was disclaimed with the result that, on Choutmull's death, it would come back to the plaintiffs by virtue of Punamchand's position as the adopted son. In this way, the appellants endeavoured to make out that, without returning or offering to return any part of Rs. 1,90,000, which they had received as consideration for their entering into the agreement to settle the disputes, and without bringing a suit properly constituted for the purpose of setting aside the consent decree, they could now maintain against Mt. Birji and Kanaihalal that they were the persons who were entitled to succeed to the estate and effects of Choutmull. Now, it is perfectly true, to begin with, that, if a valid adoption has taken place, the adopted son cannot renounce his status. A question was however in this case raised by the previous suit, as the pleadings show, whether this adoption of a person 23 years old, married and with two sons was a valid adoption at all; particularly in view of the fact that the adoption from the first seems to have been upon terms which would enable the widow to cancel at any time she chose. The plaint shows that Punamchand accepted the cancellation of his adoption by Mt. Birji. The cancellation has been affirmed by the Bikaner Raj; and, as the validity of the adoption was in dispute, it by no means appears to me to be obvious that the agreement incorporated in the consent decree was an agreement to cancel an adoption admittedly valid. It would appear to be more reasonable to regard it as an agreement to accept the position that the adoption was not valid and consequently was rightly so treated by Mt. Birji and the Bikaner Raj. In the second place, apart altogether from the question whether Punamchand ever had the status of an adopted son and, if so, whether ho could renounce that status the agreement, so far as the present plaintiffs are concerned, purported to be that the plaintiffs should for ever afterwards be treated as never having acquired any interest by virtue of the adoption.

The plaintiffs never acquired nor have now any right, title or interest in and to the estate and effects of Choutmull.

10. They took their share of Rs. 1,90,000 as a consideration for agreeing to a decree in those terms. It appears to me that, while it is quite true that anything which would invalidate an agreement may in a suit framed for the purpose be relied upon as a ground for asking the Court to set aside a judgment by consent based upon the agreement, it is idle to say that in a case of this sort the plaintiffs can ignore this consent decree for the purpose of their present suit. According to what was laid down in the old case of Ruvee Bhudr Sheo Bhudr v. Roopshunker Shunkerjee, and according to the opinion of Mr, Mayne in his well-known work on Hindu Law, an adopted son who has been validly adopted can renounce his right to the inheritance and the effect is that the inheritance would go to the next heir. In the present suit, we are in no way concerned with what will happen to Choutmull's estate if the plaintiffs have no claim thereto. It is idle to argue that the consent decree will operate to re-vest the right of inheritance from Choutmull back into Choutmull and that, although the plaintiffs under the agreement and consent decree cannot take it the first time, they can take it the second time. Such an argument appears to me . to be little short of absurdity. By this consent decree, the plaintiffs agreed that they never had any interest in Choutmull's estate and that is the end of the matter so far as they are concerned, unless and until this consent decree is set aside. Now, if such a question were to arise in England, I daresay it could be put right provided no new parties had to be introduced by a mere amendment of the pleadings. There is no reason why a claim to set aside a consent decree should not be joined in the same suit with a claim for consequential reliefs by way of possession of the estate of Choutmull. But, in India we have to consider not merely the question of parties but also the question of limitation.

11. There is another most important point to consider. These plaintiffs and their father took a large sum of money as a consideration for the agreement and the consent decree. If the consent decree is to be sot aside, it is not to be set aside merely on paper, but presumably it would be set aside upon necessary terms as to the return of the money received therefor. Now, it may well be that in this suit the plaintiffs could establish that they had a right upon returning the money to get the consent decree set aside altogether. In that case, they would then begin to prove all over again that the adoption of Punamchand originally was valid. They would then begin to wrestle with the question whether this property was self-acquired property, and whether there was a will of Choutmull which could validly dispose of it.

12. It may well be that they could got the consent decree set aside upon the return of Rs. 1,90,000 and that, in the end it would be declared that the adoption of Punamchand was entirely invalid or that they did not take the property. If this was an honest suit by the plaintiffs joining their father as a plaintiff, offering to return Rs. 1,90,000, asking for the consent decree to be sot aside and being content thereafter to take their chance of proving that the adoption of Punamchand was valid and that that adoption notwithstanding the alleged will, carried the property to them, no doubt one would have every desire to see such an honest case come before the Court upon its merits and to give those plaintiffs who wore infants at the time of the previous suit a chance in a reasonable way to raise the question of their rights. In the present case, the plaintiffs being faced in the Court below with the objection that, until they claimed to set aside the consent decree, their suit was in form untenable, elected before the learned Judge to stand by the form in which they brought their suit. The whole argument before the learned Judge was whether or not they could go on without amending to ask that the consent decree' be set aside. They come before us on the same contention-a contention which seems to me to be entirely invalid. In these circumstances, there would be no hardship at all to the plaintiffs if their suit being brought in a form which could not stand was dismissed altogether. It appears to me however that it is just conceivable-I do not enter into the question of probabilities-it is just conceivable that these infants might want to bring back the money which they obtained on this compromise decree, to get the consent decree set aside, and to take their chance of showing that they have an interest in Choutmull's estate. It is impossible to allow them to do that now except by putting them on very stringent terms. I take no notice at all of the transparent device by which it is said that Punamchand failed to be a plaintiff to the suit and was made a defendant. In fairness to the defendants who have succeeded before the learned Judge and rightly succeeded, it is necessary to impose very stringent terms if the suit is to go on at all. Upon the plaintiffs within six weeks from today paying into Court the costs before the learned Judge and of this appeal and giving security to abide by the order of the Court in the sum of Rs. 1,90,000, the plaintiffs will be at liberty to amend their plaint so as to include a claim for setting aside the consent decree. Should they within the time limited fail either to pay the sums of money or to give security this appeal will stand dismissed with costs. As the costs of this appeal cannot be taxed in time, the sum of Rs. 30 may be taken to be the costs of this appeal for the purpose of the amount to be brought into Court on this behalf.

13. Mr. B.K. Ghoso having ascertained that his clients are not in a position to comply with the terms impose, it is unnecessary to make a conditional order. The appeal will stand dismissed with costs.

C.C. Ghose, J.

14. I agree.


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