1. This appeal arises out of a suit for recovery of possession of the properties in dispute on establishment of the plaintiffs' title thereto, and for other reliefs.
2. The plaintiffs' case is that the properties belonged to one Golap Lal, and one Nobin Kishore was the adopted son of Golap. Nobin Kishore had no child of his own. In 1274 he left for Brindaban to reside there. Before leaving for Brindaban he executed a deed (Angikarpatra) dated the 14th March 1868 by which he made over the management of his estate to two of his disciples Gour Gobinda and Joy Chandra, and gave his wife Jadumani authority to adopt 5 sons in succession. He returned from Brindaban in 1869, and on the 27th November 1869 Gour Gobinda and Joy Chandra by a deed gave up the properties to Nobin Kishore. Nobin died in 1870, and about 15 years afterwards, on the 14th August 1885 Nobin's widow Jadumani adopted one Ram Krishna. The adopted son lived for about 5 years after the adoption and died in 1890. Jadumani died on the 12th June 1906. The plaintiffs Nos. 1 and 2 claim the properties as the sons of the maternal uncles of Ram Krishna (brothers of Jadumani.) The defendants who belong to the family of Nobin applied for letters of administration to his estate. The plaintiffs opposed the application, but were unsuccessful, and letters of administration were granted to the defendants on the 21st August 1906. The plaintiffs Nos. 1 and 2 executed a conveyance of a 12 annas share of the properties to the plaintiff No. 3, on the 9th January 1913, and the present suit was instituted on the 26th February 1913.
3. The defence, shortly stated, was that Nobin was not the adopted son, but the Palak Putra of Golap Lal, that Ram Krishna was not adopted by Jadumani, and even if adopted the adoption was not validly made, as the authority to adopt was coupled with conditions which had not been complied with, that the defendants were sapindas of Nobin Kishore and were the heirs, and lastly that the properties were debutter and could not be alienated in favour of a stranger such as the plaintiff No. 3. At the trial, the factum of adoption of Ram Krishna was not denied. The Court below held that Nobin was the adopted son of Golap Lal, that the genealogy set up by the defendants was not proved, and that Ram Krishna's adoption was valid. Accordingly a decree was made in favour of the plaintiffs. The defendants have appealed to this Court.
4. A good deal of evidence was adduced in the case with respect to the question whether Nobin Kishore was the adopted son of Golap Lal or was merely taken as Palak Putra. The Court below has discussed the evidence and come to the conclusion that he was adopted in the Dattaka form, and treated as such by the members of the family. The question has also been discussed before us. The question however is immaterial. In the first place both parties admit that the properties belonged to Nobin. He was taken in adoption whether in the Dattaka form or as Palak Putra before 1846 and Kristomoni the widow of Golap Lal by a deed dated the 9th November 1846 made over the estate to Nobin. Nobin according to both parties was in enjoyment and possession of the estate until his death in 1870. So that he was in possession of the estate for a period far exceeding twelve years and therefore acquired a statutory title to it even if ha was not adopted. In the next place the question of Nobin Kishore's adoption has a bearing upon the case only in this way viz., that if the genealogy set up by the defendants is correct, they would be preferential heirs (in case Ram Krishna's adoption was not valid.) But the defendants in any case are Sakulyas, and would succeed in preference to the plaintiffs if Ram Krishna's adoption is not valid. Lastly the defendants being admittedly in possession of the properties, and the suit being in ejectment the plaintiffs cannot succeed unless it is established that Ram Krishna was validly adopted. Failing that the plaintiffs as brother's sons of Jadunaani have got no title at all, and it is immaterial whether the defendants are sapindas or sukulyas. The question of geneology which also was discussed in the Court below and this Court is for the same reasons immaterial. The main question therefore is whether the adoption of Ram Krishna was valid.
5. As already stated the factum of his adoption is no longer disputed, and the question for determination is whether the adoption was valid. We have referred to the Angikarpatra dated the 14th March 1868 executed by Nobin Kishore in favour of his disciples Gour Gobinda Sarkar and Joy Gobinda Sarkar when he left for Brindaban. As the case mainly turns upon it the material portions are quoted below:
I have no son or daughter. I have a wife living. It would be very difficult on the part of my wife to manage the Sheba of the deities and to look after the properties after my death, and I have also desired to reside at Brindaban. You are my spiritual disciples and you are competent persons. The sheba of the deities and the administration of the properties can be satisfactorily managed by you. Being firmly convinced of this I place the management of the zemindaries, patni taluks, jara, Debuttar, Brahmattar, rent paying and rent free lands, &c.;, whether situated in this district or other districts, tanks, gardens, &c.;, kuchha and pucca houses, the household affairs, the gold and silver ornaments, the domestic utensils, the fixed Brittis, the cows and the calves, all the movable and immovable properties whether co-parcenary or otherwise, that is my entire estate including future acquisitions, the (fixed shebas) ancestral and joint with other co-sharers, in your hands and declare as follows:
You shall conduct the ancestral and co-parcenary sheba with other co-sharers according to share and the fixed sheba in satisfactory manner. You must help me in defraying my expenses to a reasonable extent should I, with my wife, live in the holy place or elsewhere. I shall place in your hands, the moneys, articles, and things which I can get from my spiritual disciples or in other ways in my lifetime, after deducting the necessary expenses, and after my death, you shall secure the disciples and make gains thereby through my wife, who should, be accompanied either by you, or by some trustworthy servant. My wife shall not be entitled to do anything without obtaining your sanction.
' For the purpose of retaining the disciples in future, that is, after my death, it would be necessary to adopt a son. If I make an adoption in my lifetime I shall do so with your advice and consent. If the adoption of a son is not made in my lifetime, authority is given to my present wife to adopt 5 sons in succession one after the death of the other. The aforesaid wife, and should I marry for the second time, the second wife after the death of any first wife, shall have power to adopt sons in the same way with your consent and choice from the descendants of some Goswami family, or from among my nephews who are living in Bankaposhi, who is to be selected having regard to religion and the rituals enjoined by law. She shall have not the power to adopt without your consent.'... 'If for any reason no such adoption is made either by myself or by my wife nor a son born to me, then for the sake of the retention of the disciples, and for maintaining the estate in order, you shall select one of my nephews, or a son of my agnates, or one of my disciples with a view to his fitness to take my place, and retain the disciples and maintain the properties &c.;'...The terms of this agreement shall have the same binding effect on the son adopted either by myself or my wife, the son begotten of my loins and borne by my wife, the representative selected by you, their sons, grandsons, and other heirs and on both of you as on myself. From this day you shall remain in the enjoyment and possession of the properties described below, &c;, &c.;
6. The document was not addressed to the wife, but to Gour Gobinda and Joy Gobinda the two disciples.
7. The learned Subordinate Judge was of opinion that a general authority to adopt was given by the deed. He observes:- 'To begin with, Nobin Kishore gave his wife authority to adopt generally. Then followed the restriction that his wife shall have power to adopt with the consent and approval of Gour Gobinda and Joy Gobinda whom he appointed as his agents and managers of his properties during his absence. In my opinion Nobin Kishore did not mean anything more than mere direction by the subsequent restriction, otherwise be would have mentioned a penalty in case of his disobedience and the adoption of Ram Krishna was valid even if it was made without consulting Gour Gobinda and Joy Gobinda.'
8. But the terms of the deed quoted above clearly show that the authority to adopt was subject to the restrictions imposed, viz., that the boy to be adopted must be selected by Gour Gobinda and Joy Gobinda and the adoption made with their consent, and it was expressly provided that she shall not have the power to adopt without their consent or according to her own choice (discretion). It is to be observed that the principal object of the adoption was ' retaining the disciples in future.' The family is descended from the well-known saint Nityanand, and his descendants have numerous disciples among, and are hold in the highest respect, by persons belonging to the Vaisnab sect. The evidence shows that they are held in the highest esteem by persons such as the late Maharani Surnamoyi, and the present Maharaja Munirdra Chandra Nandi of Gossimbazar. It was necessary therefore that the boy to be adopted must be one belonging to the family of Nityanand and who would be able to retain the disciples and carry on the turn of worship of the deities, and the power of selection therefore appears to have been given to two of the disciples in whom Nobin Kishore had confidence, and who had undertaken to manage his estate.
9. Generally speaking, the authority to adopt must be strictly pursued and neither be varied from nor extended (See Mayne's Hindu Law, 8th Edition, Page 141) oven though the act directed will be illegal when done, as for instance that two widows should simultaneously adopt two boys. See Surendra Keshab v. Doorga Sundari  19 Cal. 513. In Amrita Lal Dutt v. Surnamoyee  27 Cal. 996, where it was held that an authority to adopt given by a testator to his wife and executors being bad as to the executors was incapable of execution by the widow, the entire authority being single and indivisible.
10. It is contended on behalf of the respondent that the intention should be looked to; and a power to adopt should be liberally construed. Reliance is placed on the cases of Surendra Nandan v. Sailaja Kant (1891) 18 Cal. 385; Suryanarayana v. Venkataramana (1902) 26 Mad. 681, Kannepalli Suryanarayana v. Pucha Venkataramana (1907) 29 Mad. 382; Sarada Prasad Pal v. Ramapati Pal (1912)16 C.L.J. 304, and Mutsudi Lal v. Kundan Lal (1905) 28 All. 377. In the first case, the testator by his will directed that his widow 'will adopt a son with the good advice and opinion of the manager' appointed by his will. The widow wishing to adopt the plaintiff in that case sent a registered letter to the manager who had refused to give her any advice asking him to come and see the ceremony performed, but the letter was refused and returned to her. It was held that all that the testator intended was to suggest that his wife would exercise a sound discretion if in the matter of choosing a boy to be adopted she consulted the manager in whom he, the testator, seems to have reposed confidence. The learned Judges observed 'Looking at the religious efficacy that ensues from the adoption of a son by a widow to her deceased husband, we think the Court should not be too astute to defeat an adoption, but should rather, do its utmost to support it, unless such adoption is clearly in excess or in breach of the power to make it.'
11. In the present case, however, not only was the wife to adopt according to the selection, and with the consent of Gour Gobinda and Joy Gobinda but it was expressly provided that she shall not have the power (according to her own choice) to adopt without their consent. These words cannot be held to be merely directory.
12. In the next case, Suryanarayana v. Venkataramana (1907) 29 Mad. 382, affirming the judgment of the High Court a husband verbally authorized his wife to adopt a son. The authority was in general terms requiring her to adopt so as to continue his line and to provide for his spiritual benefit; to particular person being indicated for adoption and no restriction placed on his wife's discretion. He died in 1861, and after his death the widow in 1865 adopted a son who died shortly afterwards. In 1898 she adopted another son with the consent of some of the sapindas, and it was held by the Judicial Committee [affirming the judgment of the High Court: See Suryanarayana v. Venkataramana (1907) 29 Mad. 382 that the second adoption was valid, the authority to adopt not being exhausted by the first adoption. Their Lordships observed that the main factor for consideration in such cases is the intention of the husband. But it will be seen that the authority was in general terms, and no restriction was placed on the wife's discretion and their Lordships observed (at page 388) ' Any special instruction which he may give for the guidance of his widow must be strictly followed; where no such instructions have been given but a general intention has been expressed to be represented by a son their Lordships are of opinion that effect should if possible be given to that intention,' and after referring to the case of Surendra Nandan v. Sailaja Kant (1891) 18 Cal. 385 observed:-' In the present case it is abundantly clear that the husband desired to be represented by a son after his death and that he placed no specific limitation on the power to adopt which he entrusted to his widow.' Their Lordships clearly stated that any special instructions which he (the husband) may give for the guidance of his widow must be strictly followed, and it was because the authority was in general terms, and no restriction was imposed on the wife's discretion, that the intention was given effect to. That case therefore does not help the respondents; it rather supports the appellants. In the third case Sarada Prasad Pal v. Ramapati Pal (1912)16 C.L.J. 304, where the widows were authorized to take a boy in adoption from ' amongst the near representatives ' of the deceased, it was held that if the testator intended to restrict the class of boys within which the choice by his widows was to be limited he failed to effectuate that intention. With regard to the contention that whoever might have been chosen was intended to be selected by the widows concurrently and that the death of one of them did not remove the fetter upon the exercise of authority by the other, but rather rendered the exercise of such authority wholly impossible, it was held that the expression 'my wives will adopt whomsoever they would select' must be read with the previous part of the clause, which must be construed distributively as conferring an authority on the widows severally. In the last case, Mutsadi Lal v. Kundan Lal (1905) 28 All. 377, the direction in the authority for adoption was to adopt a son of one Hardeo Das and within a year or two after the death of the husband. The boy adopted by the widow was born subsequently but none of the sons of Hardeo was specifically named, and their Lordships were not disposed to place a narrow construction upon the authority. As regards the period within which the adoption was to be made, the words 'within a year or two,' were qualified by the further words 'at any time she (the widow) liked.'
13. It is true as was pointed out by the learned Judge in Sarada Prasad Pal v. Ramapati Pal (1912)16 C.L.J. 304, that when the general intention of a Hindu to be represented by an adopted son is clear, there seems no reason why effect should not be given to such intention, if it is possible to do so without contravening the law, at any rate the Court will not be astute to defeat the intention of the testator, and that all powers are to be liberally construed in furtherance of the purpose for which they were created. But the above cases do not lay down that where, as in the present case, special reasons exist (as already stated) for plating restrictions on the authority, and special instructions are given for the guidance of the wife and restriction is placed on the authority, they are not to be strictly followed. In the case of Sitabai v. Bapu Anna Patil A.I.R. 1921 P.C. 88, the will of a Mahratta Brahman governed by the Bombay school of Hindu Law directed that 'my wife should as far as possible adopt Sunkar the second son of my elder brother. If he (the boy) cannot be obtained, any other boy should be adopted with the advice of the trustees.' The will provided that the son adopted should keep the widow, treat her with affection and give her maintenance. Sunkar and the family of which he was a member were on bad terms with the widow who adopted with the advice of the trustees, a son of her sister. At the time of that adoption Sunkar could have been obtained for adoption. According to the Bombay School of Hindu Law a widow has an inherent right to adopt a son to her husband unless there is a prohibition express or implied by him. Their Lordships observed: ' The point for determination therefore is, whether these words merely appeal to the wife to exercise her discretion in the manner indicated, or whether they impose upon her a mandate so to exercise it' and it was held that the provision was mandatory.
14. It is unnecessary to consider whether the general intention of Nobin Kishore that a son should be adopted would not have been a sufficient authority, if Gour Gobinda and Joy Gobinda were not alive at the date of the adoption, or had refused to select a boy for adoption, as according to the plaintiffs they were alive at the time of the adoption. Having regard to the terms of the Angikarpatra, and the main object of the adoption in this case we must hold that the restrictions imposed upon the authority must be strictly followed, and that in order to render the adoption valid, it was essential that the boy should be selected by and adopted with the consent of Gour Gobinda and Joy Gobinda.
15. It is contended however on behalf of the respondent that it was because Gour Gobinda and Joy Gobinda were entrusted with the estate by Nobin Kishore, that the power of selection was given to them. It was given to them as they were to hold the estate as trustees and as incidental to the powers of management, as otherwise they might be hampered in the management if a person not chosen by them were adopted by the widow. It is urged that when the management was given up by them on return of Nobin Kishore from Brindaban, by the deed dated the 27th November 1869, the power of selection was also given up. The power of selection remained so long as they had charge of the estate and with the renunciation of the estate and trust, the power was gone, and reliance is placed upon the passage in the deed, viz., ' we being thus divested of all rights to return your properties to you.' But the adoption of Ram Krishna took place under the authority to adopt contained in the Angikarpatm dated the 3rd April, 1868, and the authority contained therein was to be exercised only according to the selection and consent of Gour Gobinda and Joy Gobinda. The plaintiffs cannot contend that the authority to adopt given in the Angikarpatra was gone by the deed of renunciation executed by Gour Gobinda and Joy Gobinda because in that case, the widow would have no authority to adopt unless she had a verbal authority which will be dealt with later. It is said that the authority to adopt continued, only that the restriction imposed upon it by giving the power of selection to the two persons was removed by the deed executed by the latter. We are however unable to hold that that was the effect of the deed of renunciation. Either the authority to adopt contained in the Angikarpatra became wholly inoperative by the deed of renunciation dated the 27th November 1869, or if it continued to exist, it continued subject to the restriction imposed, viz., that the authority to adopt was to be exercised only with the consent of those two persons.
16. We are of opinion that the authority to adopt given to the wife was subject to the consent of Gour Gobinda and Joy Gobinda, and that the restriction continued notwithstanding the execution of the deed dated the 27th November 1869 by them.
17. It is contended on behalf of the respondent that the sixth issue raised the question whether Jadumoni had any authority to adopt, but no issue was raised as to whether there was strict compliance with the authority. The question however was fully gone into in the Court below, and we do not think that the respondent has been prejudiced by reason of the omission to frame a specific issue on the latter point.
18. The plaintiffs have adduced evidence to show that Jadumoni adopted Ram Krishna with the consent of those two persons.
19. [Their Lordships held on the evidence that Ram Krishna had not been selected by Gour Gobinda and Joy Gobinda, that his adoption had not taken place with their consent and that they had not been present at the adoption. The judgment rejected the plea of verbal authority to adopt set up by the plaintiffs and after considering some matters not material to our report, concluded by allowing the appeals.]