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Bhupati Nath Chakravarty Vs. Basanta Kumari Devi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1936Cal556,167Ind.Cas.713
AppellantBhupati Nath Chakravarty
RespondentBasanta Kumari Devi
Cases ReferredJatindra Mohan Tagore v. Ganendra Mohan
Excerpt:
stamp act (ii of 1899), sections 36, 2(24), 61 - document once admitted cannot be rejected for want of epopee stamp--settlement, meaning of--court, if can declare epopee duty and penalty--deed--construction--substance to be looked into--rights vesting in idol--idol, if a trustee--hindu law--adoption--status of adopted son, if altered by subsequent deed by adoptive father--maintenance--adult son, if entitled to maintenance. - d.n. mitter, j.1. this is an appeal by the plaintiff whose suit has been dismissed by the subordinate judge of nadia by his decision dated 31st july 1933. the case made in the plaint is that after the death of the plaintiff's father he was given in adoption by his mother bagala sundari debi to the husband of the defendant basanta kumari, a gentleman of the name of kshetra nath chakravarti, in july 1926. kshetra nath died on 16th november 1928. at the time when plaintiff was given in adoption his age, it is stated, was nine years. it is alleged that he was ill-treated by his adoptive mother, the defendant basanta kumari and his mother took him back and thereafter kshetra nath executed a deed cancelling the adoption. this deed is dated 23rd april 1927. shortly after, both kshetra and.....
Judgment:

D.N. Mitter, J.

1. This is an appeal by the plaintiff whose suit has been dismissed by the Subordinate Judge of Nadia by his decision dated 31st July 1933. The case made in the plaint is that after the death of the plaintiff's father he was given in adoption by his mother Bagala Sundari Debi to the husband of the defendant Basanta Kumari, a gentleman of the name of Kshetra Nath Chakravarti, in July 1926. Kshetra Nath died on 16th November 1928. At the time when plaintiff was given in adoption his age, it is stated, was nine years. It is alleged that he was ill-treated by his adoptive mother, the defendant Basanta Kumari and his mother took him back and thereafter Kshetra Nath executed a deed cancelling the adoption. This deed is dated 23rd April 1927. Shortly after, both Kshetra and Basanta Kumari executed a deed which is termed as a deed of settlement, giving all the properties to certain ancestral deities and for the performance of Durga and Lakshmi pujas.

2. The case which the plaintiff makes is that the deed of cancellation of the adoption cannot be sustained in law, and it does not affect his rights which is based on the status of an adopted son. It is alleged that the deed of settlement in favour of the deities is inoperative, because undue influence was exercised on Kshetra and further because the deed was not acted upon. It is also said that Kshetra could not by the deed of settlement, lay down a line of succession of shebaitship contrary to the Hindu law after Jitendra Nath Chakravarty who was one of his agnatic relations and would be the shebait after the death of both Kshetra Nath and Basanta Kumari. It was further stated that the document which created the Debutter was insufficiently stamped and that the said document could not be admitted in evidence so as to affect the rights of the plaintiff without payment of the proper stamp duty and the penalty. We will have to revert to this question about the admissibility of this document later. The defences to the suit were that the document of cancellation was a valid document, and that the deed of settlement in favour of the deities was valid. On these pleadings several issues were framed. The issues are printed at p. 13, part 1 of the paperbook. With regard to issue 2 as to whether the plaintiff was the validly adopted son of the deceased Kshetra Nath Chakravarty the finding of the Subordinate Judge is in favour of the plaintiff. Issue 4 is to the following effect:

Are the deed of cancelment dated 10th Baisak 1334 B.S. (23rd April 1927) and the deed of gift and settlement dated 21st Baisak 1334 B.S. (4th May 1927) valid and operative documents? Were they or any of them executed under undue influence and coercion? Has any valid right by the deeds vested in the deity Sridhar Thakur and others by right of the said deed of 21st Baisak 1334 B.S. (4th May 1927).

3. Issue 5 runs thus:

Can the plaintiff claim any maintenance from the estate of the deceased Khetra Nath Chakravarti?

4. Issue 6 was to the effect:

Were the immoveable properties mentioned in items Nos. 1, 13, 24, 30 to 38, 82 to 98 and 200 and the debt mentioned in item 12 of the plaint schedule the Stridhan property of defendant 1.

5. These issues arose for decision: with regard to issue 4 although there is no distinct finding on it, yet the Subordinate Judge evidently proceeds on the view that the deed of cancelment of the adoption cannot take effect. So far as this point is concerned, there is no question that the plaintiff having once been given in adoption, has been transferred to the adoptive family and has got the status of an adopted son. The question was not a question of contract so that it could be rescinded by a subsequent deed. The adoptive father could not, by any subsequent instrument, alter the status that had been conferred on the plaintiff as an adopted son. This position has not been challenged on behalf of the respondents in this case and nothing more need be said about it. With regard to the deed of gift or settlement dated 4th May 1927, the finding of the Subordinate Judge is that this was not executed under undue influence or coercion and that a valid right had been created by the deed in favour of the deity Sridhar Jiew Thakur and others by the said deed. With regard to the issue relating to maintenance the Subordinate Judge has come to the conclusion that as the plaintiff has attained majority and no authority has been shown to him that under the Hindu law an adult is entitled to maintenance or that his rights with regard to maintenance cannot be affected by any provision either in a will or a deed, the plaintiff's claim for maintenance must fail. There has been no controversy before us with regard to the finding on issue 6 and the decision which we will give will proceed on the assumption that the deed of settlement to which we will refer in detail hereafter covers all the properties that are the subject matter of the present suit. It may be stated here that one of the prayers in the plaint which seems to us to be in the alternative was that if the properties left by Kshetra Nath Chakravarty be held to have been affected by the settlement deed, it may be declared that the plaintiff is the succeeding Shebait after the death of Kshetra Nath and is entitled to the management of the debutter properties. The Subordinate Judge has, after taking evidence and after arriving at his decision on the various issues which were just indicated, dismissed this claim of the plaintiff with costs. In the first prayer in the plaint the plaintiff asked for the following relief (Ka):

That it may be declared that the plaintiff is the validly adopted son of the late Kshetra Nath Chakravarti and his sole heir according to law.

6. As has already been stated, the Subordinate Judge has found in favour of the plaintiff on the question of the validity of the adoption. It is against the decree of dismissal of the plaintiff's suit that the present appeal has been brought and it seems to us at the outset that the plaintiff's entire suit should not have been dismissed seeing that the Subordinate Judge has come to the conclusion that the plaintiff is a validly adopted son and, consequently, the heir of Kshetra Nath Chakravarty according to the Hindu law. This finding has not been questioned before us on behalf of the respondent and we think that the plaintiff's prayer Ka should have been granted and the declaration sought for made. The principal ground on which this appeal has been rested is that the Subordinate Judge should not have admitted the deed of settlement dated 4th May 1927, as it was not properly stamped and as the stamp duty and penalty ordered by the Subordinate Judge had not been paid and it is said that if this document is excluded from evidence plaintiff's suit with reference to the prayer about awarding khas possession of the properties claimed should have been granted. The controversy has therefore turned mainly on the question as to whether this document was properly admitted in evidence. In connexion with this it is to be noticed that as appears from a portion of the record, which portion does not seem to have been printed, that this document which has been marked as Ex. A (see p. 6, part 2 of the paper book) was admitted without objection; and after the said document had been admitted, it appears, that the attention of the Subordinate Judge was drawn to the insufficiency of the stamp leviable on this document, and the Subordinate Judge passed an order on 27th July 1933 to the following effect:

Heard pleaders for both sides. Defendants' Ex. A is impounded, and defendant 1 is directed to deposit Rs. 551-12-0 as stamp duty and Rs. 5,517-8-0 as penalty by tomorrow.

7. On the next day, namely 28th July, defendant 1 put in a petition stating the impossibility on her part to deposit the stamp duty and penalty within so short a time and that petition was directed to be kept on the record (see p. 3, part 1 of the paper book, Order No. 115). But it seems that this deficit stamp duty and the penalty were never realised from the defendant 1, Basanta Kumari. It is argued for the appellant that in those circumstances this document should have been excluded from evidence, and if the document was so excluded, the defence of defendant 1 which is based on this should not have been given effect to. We will have to deal with the question as to what the proper stamp duty on this document should be and for that purpose we have heard the learned Junior Government Pleader, Dr. Mukherji. But on the question as to whether by reason of deficit stamp and the penalty not having been put in the document should not have been admitted in evidence, we are of opinion that Section 36, Stamp Act, prevents us from acceding to the contention of the appellant. The document was, rightly or wrongly, admitted by the Subordinate Judge in evidence and, once the document has gone in under the provisions of Section 36, it is not permissible to the Court at any subsequent stage of the suit or proceeding to reject this document from evidence; Section 36 runs as follows:

When an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

8. Section 36 is, in its nature, mandatory and applies also to the Court of appeal. The question has been considered in a number of cases in this Court and it has been held that it does not matter whether the document was rightly or wrongly admitted, but if once it is admitted it is not permissible to the Court whether it is a Court of appeal or revision or the trial Court to reject it from evidence. In a recent decision of this Court Sir George Rankin, C. J., as he then was, and Mr. C.C. Ghose, J., said this:

On the merits of the appeal, it appears to me that Section 36, Stamp Act, makes it reasonably clear that the instrument having once been admitted in evidence is not to be called in question at any stage of the same suit. The Special Judge has seen this section but has thought to avoid the consequence of it by taking notice of an affidavit in which it is said that the tenure-holders did object when the document was tendered and that there was a discussion as to its admissibility. The learned Judge has entirely failed to see that under Section 36, it matters nothing whether it was wrongly admitted or rightly admitted or admitted without objection or after hearing or without hearing such objection. These stamp matters are really no concern of the parties and if the objection was taken at the time when the record was made up by the trial Court, there it might be rejected; if not, the matter stopped there.

9. See the case in Nirode Basini v. Sital Chandra 1930 Cal 577. This is in accordance with a long line of decisions. The same view was taken in an earlier decision of this Court in Biswa Nath Bhattacharjee v. Govinda Chandra Das 1919 Cal 235. In that case Chitty and Panton, JJ. said this:

But, as he (the Subordinate Judge) admitted the document in evidence that admission, except as is provided for by Section 61 which does not affect the liability of the defendant, cannot be called in question in this suit.

10. See p. 311 of the said report. The suit before him was based upon a bill of exchange which was insufficiently stamped. In a matter which came in appeal from the Original Side of this Court Sir Lancelot Sanderson, C. J., as he then was, after citing the provisions of Section 36 observed as follows:

The provisions of Section 61 are not material to the question which arises in this case. The submission was, in my judgment, admitted in evidence by the arbitrators, and having been., admitted in evidence by the arbitrators, it was not open to either of the parties to call in question such admission in the arbitration proceedings on the ground that the submission had not been duly stamped. The award, therefore, which was made upon the submission was in, my judgment a valid award.

11. See Rung Lal Kaloo Ram v. Kedar Nath Kesriwal 1921 Cal 613 at p. 518. In, the same case Richardson, J., who delivered a separate judgment uses the following language, after quoting the provisions of Sub-section 35 and 36:

Under that provision if any penalty is to be exacted, it can only be exacted under Section 61. The revenue is then protected, so far as it is protected, by that section. In my opinion once an instrument is admitted in evidence in any proceeding, either under Section 35 or under Section 36, it is available in that proceeding for all purposes as if it had been properly stamped from the outset. The proceeding will go through to a valid termination and cannot afterwards be challenged for want of jurisdiction merely by reason of non-compliance with the Stamp Act.

Section 36 would be entirely nullified if on the conclusion of the proceeding in which the instrument is admitted, the proceeding could be set aside by a separate proceeding initiated by one of the parties on the sole ground that the person having authority to receive evidence had admitted or acted upon an unstamped or insufficiently stamped instrument. (See p, 520 of the said report).

12. It seems to us therefore on a plain reading of the language of the statute as contained in Section 36 as also on the authorities to which we have just referred, that the contention of the appellant that this document can now be excluded from evidence must fail, and we will proceed to determine this case on the footing that this document in question is properly before the Court.

13. It now remains to consider the question relating to the stamp objection: the question is as to what the proper stamp is which should have been put on this document for the purpose of Section 61. The learned Junior Government Pleader was heard on this question as well as Mr. D.N. Bagchi who appears for the respondent, who has filed this instrument. It is contended on behalf of the respondent that this is really in the nature of a trust deed. We have no hesitation in rejecting this contention, for on a plain reading of the deed it appears to us that it is a deed of gift in favour of certain idols some of whom are in existence at any rate. It is conceded that Sridhar Jieu was a family idol which had been established long before the date of this instrument. The material passage of the document is to be found at p. 8, line about 16, part 2 of the paper-book. It is in these terms:

We after much consideration in sound health, in good faith, of our own free will, and without being requested by others, dedicate all the properties mentioned in the schedule below to Sri Sri Iswar Durgamata Thakurani, Sri Sri Iswar Jagadhatrimata, Sri Sri Iswar Sridhar Jieu, Sri Sri Iswar Lakshmimata and Sri Sri Iswar Saraswatimata, etc., and execute this Arpannama (deed of endowment) and agree that whatever right, title, interest and possession we had in the properties of the under-mentioned Schedule become totally extinguished from this day and the aforesaid deities completely become the Maliks of the Schedule properties from today.

14. There can be no doubt that the rights of the executants Kshetra and Basanta Kumari, his wife, to the properties mentioned in the schedule to this instrument became extinguished and that right vested in the idol. The idol cannot be regarded as a trustee in respect of the property in which by the terms of the instrument the complete right had vested in the said idol. It is difficult to spell out of this document any idea of trust in favour of the idols. The property is the idol's property although we are not unmindful of the fact that the idol holds property in the ideal sense. This was pointed out by their Lordships of the Judicial Committee both in Prosanno Kumari Debya v. Golab Chand Baboo (1875) 2 I A 145 and Jagadindra Nath Roy v. Hemanta Kumari Debi (1905) 32 Cal 129. The question of trust, therefore, is out of the way.

15. Then we are asked by the respondent to construe this deed as a deed of settlement within the meaning of Section 2, Clause 24, Stamp Act. This, no doubt, is a somewhat difficult question. Settlement as defined in the said clause of Section 2 means

any non-testamentary disposition, in writing, of moveable or immoveable property made [we will omit Clauses (a) and (b) which are not material] (c) for any religious or charitable purpose;

and it is said that the document is headed as a deed of settlement. But in order to construe the legal effect of any particular instrument it is not the description at the head of the document which ought to be the controlling factor, but it is the substance of the document and not the form which is to be looked into. It is argued for the respondent that ' settlement ' as defined attracts the provisions of the particular instrument, Ex. A, as it is a non-testamentary disposition of moveable and immoveable property for religious or charitable purpose. The word ' settlement ' as it is generally understood really refers to a disposition of successive interests in immoveable property and is generally couched in the form of a trust and it is such a settlement which is in the nature of disposition of property moveable or immoveable either in consideration of marriage'or for one or more of the objects specified, namely, religion, charity, or provision for family, dependents or others, that in our opinion is contemplated by Clause 24. It is these objects which attract the benefit of a duty half that of a gift or of a conveyance. We are pressed by the respondents to take the view that this was really not a case of a gift to an idol, but that it was a trust in favour of an idol and that even if it was not a trust it serves as a document which certainly comes within the definition of ' settlement ' as given in Section 24. The word ' settlement ' has been defined in the Specific Relief Act as follows:

'Settlement' means any instrument (other than a will or codicil as defined by the Succession Act) whereby the destination or devolution of successive interests in moveable or immoveable property is disposed of or is agreed to be disposed of: (See Section 3 of that Act.)

16. It seems to us that underlying the idea of settlement there is the notion or conception of trust. It is difficult to say that when a gift is made to an idol, the idol is to be regarded as a trustee although the deed says that the particular idol or idols are to be the Maliks of the property dealt with by the said instrument. On this part of the case it has further been pointed out that there can be no gift to an idol, for according to the definition of gift under Sub-section 122 and 123, T. P. Act, a gift must be in favour of a living person and, an idol not being a living person it cannot be regarded as a gift. The question as to whether there can be gift to an idol was considered by a Full Bench of this Court in Bhupati Nath Smrititirtha v. Ram Lal Maitra (1910) 37 Cal 128, and Asutosh Mookerjee, J., who delivered one of the judgments in that case summarizes his conclusions at p. 161 of the report. The first conclusion is:

The view that no valid dedication of property can be made by a will to a deity, the image of which is not in existence at the time of death of the testator, is based upon a double fiction, namely, first, that a Hindu diety is for all purposes a juridical person, and secondly, that a dedication to the deity has the same characteristics and is subject to the same restrictions as a gift to a human being. The first of these propositions is too broadly stated, and the second is inconsistent with the first principles of Hindu jurisprudence.

17. The learned Judge seems to be of opinion that a gift to a deity is not hedged in by the same limitations and is not subject to the same restriction as a gift to a human being or living person. The learned Judge then observes thus:

The Hindu Law recognises dedications for the establishment of the image of a deity and for the maintenance and worship thereof.

18. We do not ignore the fact that it is possible to make a gift for a religious and charitable purpose by appointing trustees and by not making a gift as to an idol or idols as in the present case. It appears that in the Madras High Court the question was raised by a Full Bench of that Court as to how far there can be a gift to an existing idol within the meaning of the Transfer of Property Act: see the case in Narasimha Swami v. Venkatalingum 1927 Mad 636, and there is an interesting discussion with regard to the provisions of Section 123 about gifts to an idol in the judgment of Kumarswami Sastri, J. at p. 695. It seems that this question was mooted, but was not finally decided. The learned Judge used the following language:

It has been argued for the respondent that an idol is in law recognized to be a juristic person capable of holding property and it must be held that a gift to an idol is a gift to a living person. A juristic person is not necessarily a living person and the fact that for some purpose the law by a fiction invests non-animate bodies with the rights of persons would not make juristic persons living persons for all purposes. It is unnecessary to pursue this point further as the document is not a gift to an idol, but to Sri Kothandorama Moorthy, the Almighty, and by no stretch of imagination, legal or otherwise, can it be said that the Almighty is a living person within the meaning of the Transfer of Property Act.

19. There the disposition was in favour of the Almighty. Besides, it seems to us that the view taken by the Madras High Court was in conflict with the view taken in this Court in the Full Bench case in Bhupati Nath Smrititirtha v. Ram Lal Maitra (1910) 37 Cal 128. We have, therefore, no doubt, having given our anxious consideration to the matter that there was a gift of properties comprised in Ex. A in favour of the idols mentioned there and if so, the proper duty payable under Article 33, Stamp Act, would be the same duty as on a conveyance for a consideration equal to the value of the property as set forth in such instrument. It seems to us that the Subordinate Judge is right when he holds that the deficit duty is Rs. 551-12.0.

20. It now remains to consider the penalty which is to be paid on this instrument. Under Section 61, Stamp Act, the Court has to make a declaration as to the amount of the duty payable as also the penalty. It has been strenuously contended before us by the learned advocate for the respondent that having regard to the provisions of Section 61 (2) the Court can only declare what the proper duty is. It has no right to determine the penalty. It becomes necessary therefore to consider the express provisions of the statute. Section 61 (1) runs as follows:

When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Ch. 12 or Ch. 36, Criminal P. C., 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 35, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion, or on the application of the Collector, take such order into consideration.

21. Section 61 (2) is in these terms:

If such Court after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.

22. Then there is the proviso to Clause (4) to the following effect: Provided that (a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under Section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty. The word 'amount' is qualified by the bracketed words ' including duty and penalty,' that is to be determined by the Court which is dealing with the matter for the purpose of Section 61. It is argued that in Clause (2) nothing is said with regard to the declaration about the higher duty and penalty. Clause (2) has to be read along with the proviso to Clause (4) which says in clear language that the determination by the Court must be of both the duty and the penalty. It is said that the question of penalty is a matter within the discretion of the Collector under Section 40. It is to be noticed that the Collector's decision as to penalty is not final and is liable to be called in question or challenged by the Court of appeal or revision. So it is necessary that this Court should declare not only what the duty is, but also the penalty and we think that the penalty having regard to the provisions of Section 35(a) should be ten times the amount of proper duty or a portion thereof. Section 35 (a) runs as follows:.. in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion.

23. We have no option having regard to the proviso but to hold that the penalty is ten times Rs. 551-12-0, namely, Rupees 5,517-8-0. It must be distinctly understood that we are simply making this declaration as is required by Section 61, Stamp Act, and the intimation of this declaration should be sent to the Collector of Nadia along with a copy of this judgment. It has been conceded before us that after having admitted the document in evidence, the Subordinate Judge was wrong in impounding the document and directing the defendant to deposit Rs. 551-12-0 as stamp duty and Rs. 5,517-8-0, as penalty by 28th July. It has been conceded by Dr. Mukherji, who appears for the Government that this was an irregular order and, as we have already stated, once having admitted the document, it was not open to the Subordinate Judge to make that order. It is however open to us now to say that this document is to be impounded and it must be sent to the Collector of Nadia for that purpose.

24. We now proceed to consider the merits of the appeal. For the appellant, as already indicated, it has been argued that this deed, Ex. A, was never acted upon, and this document was, after all, an illusory document created with the object of depriving the adopted son of his just rights. The appellant, however, is in a difficulty. It appears that the lady Basanta Kumari has been examined in this case, and in her examination, as appears from the record (unfortunately this document has not been printed), she states clearly that debsheba was being carried on in the manner mentioned in Ex. A, and that realisations and collections were being made and are applied for purposes of the Puja. We do not see any reason why we should discredit her statement. She also stated that there are books which would corroborate her statement. It is argued for the appellant that these books have not been produced. The answer to that is that the appellants did not pursue their cross-examination with reference to these books after the lady stated that though she had the books in her possession she was never asked to produce them before the Court.

25. It has next been argued that as no mutation was effected during the lifetime of Kshetra recording the name of the deity as proprietor the document must be taken to be unreal. The answer to that contention is that Kshetra did not live very long after the execution of this document. A number of supervisors were appointed to check the work of the shebaits and the whole object was that these properties should be given to the idol and collections made for debsheba and other purposes. The mere fact that there has been no mutation does not show the unreality of the transaction. It is not said that either of the executants was involved in debt. It seems to be an absolute dedication of the strictest kind in favour of the idols, and more cogent evidence should have been forthcoming if the appellant wanted to establish that this was an illusory document and the income of the property was not being strictly applied to debsheba purposes. On the statement of defendant 1 the Subordinate Judge was right in coming to the conclusion that the deed was being acted upon. It is important to notice in this connexion that the real ground on which this deed was attacked was undue influence and coercion, of which there is no vestige of evidence. This ground must therefore fail.

26. The next ground taken is that in any event the Court should have granted a decree for maintenance to the plaintiff, namely, the adopted son, and that it was not open to Kshetra or his wife to deprive the plaintiff of the maintenance which he was entitled to under the Hindu Law. It has been contended that under the Hindu law, an adult son is not entitled to maintenance, and our attention has been drawn to a passage referred to in the well-known treatise on Hindu law by the distinguished Hindu lawyer, Mr. Gopal Chandra Sarkar Sastri which has been revised by his son Mr. Rishindra Nath Sarkar, an advocate of this Court. At p. 684, the learned author says this:

In the Bengal school, however, a doubt may be raised as to the right of an adult son and consequently of his wife or widow and daughter. But it should be remembered that the Hindu law makes provisions for the maintenance of even an illegitimate son.

27. The right of maintenance under the Hindu law is founded on certain texts one of which is that of Manu:

It is declared by Manu that the aged mother and father, the chaste wife, and an infant child, must be maintained even by doing a hundred misdeeds.

28. Manu cited in the Mitakshara while dealing with gifts. The qualifying words in regard to the issues of a man are ' infant child.' In view of this text of Manu it is difficult to say that an adult son is entitled to any maintenance. As a matter of fact so far back as 1869, the eminent Judge, the late Dwarka Nath Mitter, J., laid down the following proposition:

We find no authority either in the Hindu law or in the Jain Shastras to support the position that a father is obliged to support a grown up son. It is alleged that the plaintiff was labouring under illness, and he is, therefore, entitled in justice and in equity to receive maintenance from his father, notwithstanding that he has arrived at majority. But illness was never made the ground of the plaintiff's action, and even if it had been, we do not see any reason why a temporary disorder of the stomach should render it obligatory on the defendant to support the plaintiff, when no such obligation exists in law: See Prem Chand Pepara v. Hoolas Chand Pepara (1869) 12 W R 494.

29. That also seems to be the trend of the view taken in the other schools of Hindu law. So this ground regarding the right of the plaintiff to maintenance must fail. It is next contended that the lower Court should have determined in this suit the right of the plaintiff to the shebaitship as prayed for in relief Gha (p. 8, part 1, of the paper book) of the plaint. Before us the argument has taken this shape. It is said that in the recent Full Bench decision of this Court in Manohar Mukerji v. Bhupendra Nath Mukherji 1932 Cal 791, this Court has held that even with regard to shebaitship, the course of succession must not be one opposed to Hindu law; and the principle in Jatindra Mohan Tagore v. Ganendra Mohan (1872) 9 Beng L R 377, which applies to secular property must also apply to the shebait; and it is said that the line of devolution after defendant 1 and Jatindra Nath Chakravarti, who has also been appointed shebait, is contrary to Hindu law. Therefore, the adopted son as heir would come in as shebait after them. With regard to this prayer it seems to us that the prayer is altogether premature. Cause of action has not arisen, for both Basanta Kumari and Jatindra Nath Chakravarty who are the legally appointed shebaits are still alive. The question might arise at a future time after the death of these two persons when it would be open to the plaintiff, if so advised, to agitate the question with regard to his rights about shebaitship. The result, therefore, is that the plaintiff is entitled to a declaration that he is the validly adopted son of Kshetra and is his sole heir according to law; and the rest of the claim is dismissed, except with regard to the prayer for shebaitship which question is not determined in the present case and which is left open for future litigation if the plaintiff chooses to bring one when the occasion arises. The Subordinate Judge's decree is varied in this way. The appeal is allowed partially. There will be no order as to costs.

Patterson, J.

30. I agree.


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