1. We have already dealt with Appeal No. 151 of 1917 and the facts are stated in our judgment in that appeal. It was at the request of the parties that we postponed the hearing of the present appeal, in which the appellants are the defendant No. 1 in the suit, Mathuriya Debi, the widow of Ramdin Hazari, and her nephew, the minor defendant No 6, whom she has adopted as a son to Ramdin and who is represented by her. The respondent is the plaintiff in the suit, Bejoy Singh Hazari, the son of Sheodayal. The appeal is from that part of the decree of the Court below which declares that the adoption of the defendant No. 6 by the defendant No. 1 is invalid.
2. After this appeal was heard, a Rule was issued at the instance of the appellants calling upon Sheodayal to show cause why he should not be made a party respondent. Having heard the Rule, we are of opinion that it ought to be discharged as Sheodayal was not a plaintiff in the Court below but a defendant.
3. The Case stands thus. The plaintiff in the suit, Bejoy, claimed to be himself the adopted son of Ramdin. Under the consent decree of 1910, the widow, Mathuriya, had taken possession of half the estate left by Ramdin and had purported to adopt the defendant No. 6, That decree was founded on a compromise between Mathuriya on the one side and Sheodayal, acting on his own behalf and on his son's behalf, on the other. Bejoy pleaded that the consent decree was not binding on him and that the adoption of the defendant No. 6 was invalid, but the questions so raised were ancillary to the main purpose of his suit, which was to obtain possession of the moiety of the estate in the possession of Mathuriya. In the other appeal we have upheld the conclusions of the Court below that Bejoy's own adoption is not established and that the consent decree is binding on him.
4. That being so, it seems to us that it is unncessary to arrive at any finding on the question of the validity of the adoption of the defendant No. 6, Bejoy's suit has already failed. Apart from any rights which the defendant No. 6 may have, Mathuriya is in possession as a Hindu widow. The next reversioner is, not Bejoy, but Sheodayal. Sheodayal may have precluded himself from contesting the binding character of the compromise of 1910 and the decree founded thereon, but he is not precluded from raising a question which turns on the construction of the agreement then arrived at. It is in the discretion of the Court to make or refuse to make a declaratory decree and the decision of the Privy Council in Rani Anand Kunwar v. Court of Wards 8 I.A. 14 : 8 C.L.R. 381 : 6 C. 764 : 4 Sar. P.C.J. 195 : 4 Shome L.R. 78 : 5 Ind. Jur. 161; Rafique and Jackson's P.C.J. No. 63 : 3 Ind. Dec. (N.S.) 495 (P.C) shows that it is not a matter of course to grant a declaration as to the validity of an adoption at the instance of a remote reversioner when there is a nearer reversioner entitled to sue.
5. In point of ceremonial observance there is no dispute that on the 1st May 1913, Mathuriya formally adopted the minor appellant as her late husband's son A deed of adoption, or dattaka patra, was drawn up, which was signed by a number of respectable witnesses. The learned Subordinate Judge has found that Ramdin gave his wife no permission to adopt. The evidence on that question of fact is conflicting, but if we had to weigh the evidence, we should undoubtedly agree with the Subordinate Judge. Ramdin was taken suddenly ill about 11 p.m. and became unconscious. Whether or not he recovered consciousness at all or the power of speech, he died at 9 or 9-30 a.m. on the following day, the 5th November 1906. He was not more than 35 years old. The permission is said to have been oral. Mathuriya has on different occasions differently stated the time at which it was given. The time selected at the trial was shortly before dawn on the 5th. It may be a comparatively simple thing for an orthodox Hindu to tell his wife that she may adopt a son, but it is more than doubtful whether Ramdin was capable of doing even that simple thing at the time suggested. The evidence of the two medical men (Bepin Chandra Dutt, who practises homoeopathy in addition to other duties, and Beni Mohan Das, a medical practitioner) indicates that there was no such capacity on his part, and that conclusion receives strong support from Narendra Nath Sen the Pleader, whose testimony must carry great weight. We attach little importance to the testimony of the members and dependants of the family, or to such witnesses as Jogendra Nath Sen and the two Chakravarttis. The two Pleaders (Prosonna Kumar and Chitta Ranjan Das) called by the appellants are also important witnesses. As to the probabilities, the argument that it wan against Mathuriya's temporal interest to adopt a son, is weakened by the fact that she adopted her own nephew and was thereby doing a good turn to her own relatives. On the other hand, in the circumstances any permission to adopt given by Ramdin would probably have been a permission to adopt Bejoy.
6. As regards permission to adopt, therefore, we should, as we have said, have agreed with the Subordinate Judge that there was no permission. But the controversy does not rest there. There is the further question whether Sheodayal and Bejoy are precluded, by the terms of Clause 2 of the compromise of 1910, from disputing the validity of the adoption, In that connection reference was made during the course of the argument to the case of Srish Chandra Ray v. Banomali Roy 31 I.A. 103 at p. 107 : 34 C. 584 : 8 C.W.N. 594 : 6 Bom. L.R. 501 : 14 M.L.J. 185 : 2 A.L.J. 31 : 8 Sar. P.C.J. 677 (P.C.). But for reasons already indicated, we propose to express no opinion on this question of law or on the application of the decision cited to the facts of the present case. 7. The result is that we set aside the declaration made by the Subordinate Judge that the adoption is invalid and leave the question entirely open, There will be no order as to the costs of this appeal, The Rule above referred to is discharged also without costs.