1. This appeal arises out of a suit for establishment of title, recovery of possession, mesne profits and accounts.
2. One Rajchandra Shaha of Brahmanbariah died on the 19th Chait 1308=2nd April 1902, leaving him surviving his son Kailash Chandra Shaha and a widow Mahamaya. Kailash married one Radharani and died on 15th Poush 1310=December 1905. Radharani died on the 12th Assu 1319, that is the 28th of September 1912.
3. By his Will dated 9th Poush 1307=24th December 1900, Rajchandra dedicated his 4 anna share in a certain Brahmittar Mouza to the service of certain deities, and directed that Mahamaya should be Shebait and that on her death the son Kailash should succeed her in that office. His other immoveable properties he divided between Kailash and Mabamaya bequeathing 12 annas to Kailash, and 4 annas to Mahamaya for her life. He next authorised Mahamaya to adopt three sons in succession, whether in the lifetime of Kailash or after his death, and provided that on Mahamaya's death, the adopted son if any and failing any adopted eon, Kailash should succeed to her 4.anna share. His moveables, it may be mentioned, he bequeathed to his son Kailash.
4. After the death of Kailash, acting in pursuance of the authority thus given to her, Mahamaya adopted one Romesh Chandra Shaha who is the plaintiff in the suit and the respondent in this appeal. In the month of Bhadra 1319, about a month before her death, Radharani adopted a boy Kumud Bandhu Shaha, who was the defendant No. 1 in the suit and is now. the appellant before us, Defendants Nos. 2, 3 and 4 are brothers of Radharani.
5. In the suit plaintiff claims the estate of Kailash. It was part of the case for the plaintiff that at the time of his father Raj-chandra's death, Kailash was suffering from leprosy of a virulent or sanious and incurable type and so was disqualified from inheriting or by the necessary sacrifices' from conferring upon his ancestors the spiritual benefit required or expected of the son of a Hindu father. It was further his case that Kailash bad died without conferring upon his wife Radharani any power to adopt.
6. In the trial Court the learned Subordinate Judge has found that Radharani had received no authority from her husband to make an adoption and that her formal adoption of the defendant-appellant Kumud Bandhu was invalid. At the hearing of this appeal the learned Pleader appearing for the appellant did not find himself in a position to place before us the evidence bearing on. this question and we may say, therefore, that the Subordinate Judge's finding as to the appellant's adoption goes unchallenged.
7. But the plaintiff-respondent can succeed only on proof of his own title, and the contentions of the appellant have thus been two, namely, first, that on the evidence it should be held that at the time of his father's death Kailash in fact was not disqualified from succeeding or from the performance of religious rites and secondly, that the authority to make an adoption given by Rajchandra to Mahamaya was invalid or, in the presence of Kailash's widow, could not be exercised after the death of Kailash.
8. At a later stage of the hearing the learned Pleader for the appellant further contended that the plaintiff was precluded from questioning the validity of appellant's adoption by reason of a compromise or settlement entered into by the two widows on the 26th Assar 1315 (July 1908).
9. We have been taken over the whole of the evidence bearing on the first contention and we are of opinion that it is not sufficient to show that at the time of his father's death Kailash was suffering from leprosy of the sanious, virulent and incurable type. The Subordinate Judge relies on the evidence of four witnesses, all Pleaders of Brahmanbariah, namely, plaintiff's witnesses No. 7 Raj Kumar Ghose, No. 8 Jagat Chandra Nandi, No. 12 Dinabandhu Dutta and No. 21 Hira Lal Roy. Now the last of these, Hira Lal Roy, says that he saw sores on Kailash's fingers and on the tip of his nose but did so only once and that in the year 1S03, that is, some time after the death of Rajchandra. Dinabandhu Dutt says that Kailash was afflicted with leprosy and that for the 9 or 10 years preceding his death he had seen sores on his fingers. He says nothing of the nose and does not describe the sores. Jagat Chandra Nandi says that for the five or six years preceding the death of Kailash he had seen scabs and swellings' on Kailash's face and that he took these to be symptoms of leprosy,' Similarly Raj Kumar Ghose says that (apparently from the year 1891) he had seen something like ringworm on the face of Kailash and parts of the face swollen. He, therefore, thought, but not being a medical man could not positively say, that Kailash was suffering from leprosy.
10. On the 25th November 1902 Letters of Administration to the estate of Rajchandra with copy of the Will annexed were granted to Kailash.' After the death of Kailash, on the 6th of May 1904, Radharani applied for Letters of Administration to the estate of her husband, and she also applied for Letters of Administration de bonis non to the estate of Rajchandra, while on the 22nd of Jane Mahamaya applied for the revocation of the letters granted to the deceased Kailash. The proceedings arising out of the two last mentioned applications were contentious, and in the course of his judgment (Exhibit 52) the District Judge, referring apparently to the time when Rajchandra's Will was executed, says' 'Kailash was attacked with leprosy.' Similarly in the appeal from his order in their judgment (Exhibit 42) a Divisional Bench of this Court made the following observations: Raj Chandra had a son who was afflicted with incurable leprosy'. Again the testator made such provisions...notwithstanding that his son was afflicted with incurable leprosy.... It is curious that notwithstanding that Kailash was afflicted with leprosy he was allowed to perform the monthly sradh ceremony as 'if not so (afflicted').'
11. In the present case the learned Subordinate Judge has admitted these two judgments in evidence and has relied on the observations just set out. He has similarly admitted, and relied upon the evidence given in the said proceedings by a Government Hospital Assistant one Trailakhya Nath Sen, who is now dead. Now though the factum of Kailash's leprosy may have had some bearing on the question whether the Will made by Rajchandra was a natural and probable Will, yet the question whether Kailash suffered from leprosy and whether such leprosy was of the disqualifying type was not a question substantially at issue in the former proceedings, and in our opinion neither the judgment nor the deposition of Trailakhya Nath Sen should have been admitted. Even if admissible it has not been and cannot be contended that the question is res judicata, and the evidence of Trailakhya Nath Sen does not appear to carry the case much beyond the point where it is left by the four witnesses first referred to. No doubt in examination-in-chief he says: I treated him (i. e., Kailash). His general disease was leprosy. There were swollen marks on his face, his fingers and nails were all worn off. There were marks, leprosy marks, on his face. In this condition I have found him since I came here (4th August 1897) till his death. This leprosy cannot be cured, i.e., is incurable'.
12. But in cross-examination he tones this down. He says: 'There was an ulcer under his foot. After long treatment it got cured but shortly after the ulcer extended again. When I first saw Kailash the nails on his hands were uneven. Kailash performed the (i.e., Rajchandra's) sradh, whether or not he had his nails at the time of the sradh I cannot say. From what I found at the beginning, his nails would appear to have been uneven.'
13. Other witnesses on both sides speak of Kailash's leprosy or other disease, but these witnesses have not bean believed by the Subordinate Judge. We have, however, been taken over the whole of the evidence given by these witnesses and as we agree with the Subordinate Judge in his estimate of its value we need not hare discuss it further.
14. In support of his conclusions based on the oral evidence, the Subordinate Judge refers to the authority given to Mahamaya to adopt even in the lifetime of Kailash, and to the fact that having regularly attended Municipal meetings from February 1891 he ceased to be a Commissioner in May 1900. Against the provision in the Will for adoption in the lifetime of Kailash may be set his appointment as Shebait in succession to Mahamaya, and the provision may have been made in ignorance of the law. In any case we further think that the circumstances in which the Subordinate Judge finds corroboration of his conclusions are outweighed by the fact that Kailash did in fact publicly perform his father's sradh without objection taken and that to explain this the plaintiff's witnesses are driven to saying that Mahamaya also performed the sradh.
15. In our opinion it has not been shown that at the time of Rajchandra's death, Kailash was suffering from leprosy in a virulent and incurable or sanious form.
16. We now come to Mahamaya's authority to adopt.
17. Here in the first place it is faintly suggested that inasmuch as she was given power to adopt even in the lifetime of her son, the whole power to adopt was vitiated. We are unable to accede to that contention. Authority to adopt in the event of the death of Kailash is expressly given, and remains unaffected by the power rightly or wrongly given to adopt in his lifetime.
18. A more difficult question is the question whether, when Kailash died leaving a widow Radharani, the power given by Rajchandra the previous holder could still be exercised.
19. Now the facts as we have found them are these: Kailash was a qualified son: When he died he was some 50 years of age: He had thus attained full legal capacity: He has left no issue, and though he has left a widow he has given her no authority to adopt.
20. Thus the spiritual benefits desired by Rajchandra can no longer be obtained through Kailash or his line.
21. In support of the appellant's contention that on the death of Kailash leaving a widow him surviving, the power given by the father of Kailash to his, the father's widow came to an end, we have been referred to the well known case of Musammat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry 10 M.I.A. 279 : 3 W.R.P. 15 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 and to the subsequent oases of Puddo Kumaree Debee v. Juggut Kishore Acharjee 5 C. 615 : 2 Shome I.R. 229 : 2 Ind. Dec. (N.S.) 999; Thayammal v. Venkatarama 10 M. 205 : 14 I.A. 67 : 11 Ind. Jur. 271 : 5 Sar. P.C.J. 10 : 8 Ind. Dec. (N.S.) 895.; Tarachurn Chatterii v. Surashchunder Mukerji 17 C. 122 : 16 I.A. 166 : 13 Ind. Jur. 289 : 5 Sar. P.C.J. 379 : 8 Ind. Dec (N.S.) 619 (P.C.) and Padmakumaii Debi v. Court of Wards 8 C. 302 : 8 I.A. 229 : 4 Sar. P.C.J. 285 : 6 Ind. Jur.148 : 4 Ind. Dec. (N.S.) 193, the oases reported as Amulya Charan Seal v. Kali Das Sen 32 C. 861 at. p. 868 : 1 C.L.J. 270 and Manikyamala Bose v. Nanda Kumar Bose 33 C. 1306 : 4 C.L.J. 357 : 11 C.W.N. 12 and the latest case in the Privy Council Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 481 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 : (1918) M.W.N. 621 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom. L.R. 104 : 45 I.A. 156 : 23 C.W.N. 177: (P.C.). But in all these oases the principle laid down appears to be that an adoption which would have the effect of divesting an estate already vested in a person other than the adopting mother was cot permissible, and their Lordships of the Judicial Committee expressly refrain from deciding or expressing an opinion on the question that has here arisen.
22. The object of adoption among Hindus is not merely the due perpetuation of lineage but is also to secure for the adoptive father and his ancestors the spiritual blessings which only an heir male can confer. Here on the facts found Raj Chandra's line cannot be continued and spiritual blessings cannot be obtained through Kailash. Moreover the spiritual purposes of a son are not exhausted in the person of a son who though he attains maturity yet dies without issue. In Hindu Law the only express prohibition of adoption is in the case of a man who has either son, grandson or great grandson living. The present case is not within the prohibition of the texts and inasmuch as the adoption by Mahamaya did not have the effect of divesting Kailash's widow of the estate then vested in her, it does not appear to contravene the rule laid down in the cases we have cited. We have not been able to find any direct authority on the point we have to decide, but after consideration we are of opinion that on the general principles of Hindu Law the adoption now in question should be held to be valid.
23. We now come to the third contention.
24. On the 26th Assar 1315, to put an end to litigation and to settle the disputes that bad arisen between them the two widows, Mahamaya and Radharani, entered into the arrangement evidenced by Exhibit C. In this it is provided inter alia that Radharani should not be competent to take objection to the adoption made by Mahamaya and that similarly Mahamaya should not be competent to raise any objection to the adoption to be made by Radharani according to the permission of her husband Kailash.' In this clause each widow apparently speaks for herself alone, but in the opening recital it is provided that their heirs and representatives should also be, bound by the settlement.
25. The compromise was effected while a suit valued at about Rs. 46,000, brought by Radharani against Mahamaya in the year 1906, was pending. Plaintiff who had been adopted on the 9th of Falgun 1310 was a party to the suit but was no party to the compromise and as against him the suit was in fact dismissed. It is, however, urged that it is binding upon him as the settlement of a family dispute made in good faith and also because he has accepted benefits under it.
26. The Subordinate Judge has given sufficient reasons, which we need not here repeat, for holding that the settlement which defeats the provisions of Rajchandra's Will was entered into by Mahamaya not for the benefit of the estate but for her own personal advantage.
27. It has no doubt been shown that while plaintiff was still a minor and represented by one or others of his two brothers by blood he obtained decrees for some of the debts covered by the compromise. In two instances (vide W. No. 12 and W. No. 19) in suits brought while plaintiff was still a minor decrees were obtained some four months after he had attained his age of 18. His evidence shows that he was then ignorant of the true state of things and some months later we find him (vide Exhibit 28) withdrawing from or not proceeding with an appeal against a decree dismissing a claim brought daring his minority and based on the deed of compromise. He repudiated the settlement within a reasonable time after his attainment of majority and in fact he brought the present suit within the year. We hold that the plaintiff is not bound by the arrangement entered into by the widows on the 28th Assar 1315.
28. In the result this appeal is dismissed with costs.
29. Three points were urged on this appeal. First, it is said that Kailash having succeeded under the Will to 12 annas of his father's estate and having left an heir (his widow Radharani), Mahamaya could not exercise the power to adopt given her by the Will. Secondly, it is said that the Subordinate Judge was wrong in holding, as he has, that Kailash was suffering from leprosy of an incurable nature (Galita Kushta). Thirdly, it is said that the plaintiff is debarred from asserting his present claim by reason of a compromise by way of family arrangement arrived at on the 10th July 1908 between Mahamaya and Radharani whereby the validity of bath adoptions was recognised, which compromise it is said has been acted on and adopted by the plaintiff who has taken benefits thereunder.
30. I will deal with the third point first. The Subordinate Judge has come to the conclusion, for the reasons stated in his judgment on the fifth issue, that the settlement was not a bona fide family settlement but was for the present advantage of Mahamaya against whom a claim for moneys misappropriated to the extent of Rs. 33,873 had been made and he also finds, for reasons which he has stated, that the plaintiff never ratified or adopted the compromise. He has dealt with the whole matter at considerable length and in great detail and it is sufficient to say that I agree with his conclusions and I am also in substantial agreement with the reasoning by which he has arrived at his conclusions, and under these circumstances it is not necessary to deal with this part of the case in any detail. I feel some doubt whether for the purposes of this appeal it is necessary for us to decide whether or not Kailash was suffering from Galita Kushta and incapable of giving a power to his widow to adopt. The question of the validity of Radharani's adoption was decided adversely to the appellant by the learned Subordinate Judge upon the facts and the appellant has not ventured before us to question the correctness of that decision and must, therefore, be taken to have abandoned it. But the nature of Kailash's illness may have some bearing upon the validity of the power of adoption given by Raj Chandra to Mahamaya in his Will and I think, therefore, that I should express my opinion on the point. I have had an opportunity of seeing the judgment of my learned brother and it will be sufficient for me to say that I agree with the conclusion at which he has arrived, namely, that it is not satisfactorily established that Kailash was suffering from leprosy of the kind called Galita Kushta with the consequences which would result therefrom. It is of course curious that Raj Chandra should empower his wife to adopt in Kailash's lifetime, but as against this you have his appointment as Shebait by the Will after the death of Mahamaya and the fact that he did perform his father's sradh, which is quite, inconsistent with his suffering from Galita Kushta.
31. I now coma to deal with the first point. Now whether Kailash was suffering from Galita Kushta or not, I think that the power which Raj Chandra gave to his widow by his Will to adopt upon Kailash's death was a valid power and I do not think that the fact that the testator coupled with it a power to adopt during Kailash's lifetime (which was clearly bad if Kailash was not suffering from Galita Kushta) vitiates this power. It is true that the testator does not make the exercise of the power contingent upon Kailash's death without male issue but I do not think that this vitiates the power if at the time it was exercised, this state of things in fact existed as it unquestionably did. The power then I think was in its inception a valid power, and the only question which now arises for our decision is whether under the circumstances of this case Mahamaya was entitled to exercise the power conferred upon her by her husband's Will.
32. On behalf of the appellant it is contended that she could not and it is said that Kailash having died leaving an heir, his widow, in whom his estate vested the power could no longer be exercised and we were referred as authorities for this proposition to Musammat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry 10 M.I.A. 279 : 3 W.R.P. 15 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978, Ramkrishna v. Shamrao 26 B. 526 : 4 Bom. L.R. 315, Amulya Charan Seal v. Kali Das Sen 32 C. 861 at. p. 868 : 1 C.L.J. 270, Manikyamala Boss v. Nanda Kumar Bose 33 C. 1306 : 4 C.L.J. 357 : 11 C.W.N. 12 and Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 481 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 : (1918) M.W.N. 621 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom. L.R. 104 : 45 I.A. 156 : 23 C.W.N. 177: (P.C.).
33. On behalf of the respondent it is urged that these cases are not authorities which cover the question in the present case, that Kailash took by devise and not by descent and only 12 annas of Raj Chandra's estate and that as upon the deaths of Raj Chandra and Kailash 4 annas of the estate remained in Mahamaya the power to adopt conferred upon her by Raj Chandra's Will was uneffected and was, as the Subordinate Judge has held, validly exercised. It is said that this point was left open in Musammat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry 10 M.I.A. 279 : 3 W.R.P. 15 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 and is not covered by authority.
34. I think that the contention of the respondent that the point is not covered by authority is correct. Lord Kingsdown who delivered the judgment of the Board in Musammat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry 10 M.I.A. 279 : 3 W.R.P. 15 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978 states at page 311 pages of 10 M.J.A.--Ed. 'Whether under his testamentary power of disposition Gour Kishore could have restricted the interest of Bhawani Kishore in his estate to a life-interest, or could have limited it over (if his son left no issue male, or such issue male failed) to an adopted son of his own, it is not necessary to consider; it is sufficient to say that he has neither done nor attempted to do this' and again at page 312* he says: 'We have already said that we express no opinion as to the power of Gour Kishore to have made the disposition now insisted on by the appellant by devise of his estate.'
35. The proposition in the present case is not of course exactly on all fours with that propounded by Lord Kings-down. In the present case the question is whether a man can by a devise of a portion of his estate to his wife for life with a remainder to her adopted son, in the event of her adopting, prevent the operation of the rule in Musammat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry 10 M.I.A. 279 : 3 W.R.P. 15 1 Suth. P.C.J. 574 : 2 Sar. P.C.J. 111 : 19 E.R. 978, namely, that if a Hindu dies leaving a widow and a son and that son dies leaving no son but his widow as his heir (he having inherited his father's estate), the power of the former's widow is extinguished and can never afterward) be revived. Having regard to the way in which this case was argued on behalf of the appellant, I am, I think, as already stated, bound to assume that the Subordinate Judge has correctly decided that Kailash's widow was not given any power to adopt by her husband. On behalf of the respondent it was urged that the basis of the rule was that to hold otherwise involved a divesting of the estate of the son's heir and that where, as here, the effect of adoption does not operate to divest an estate there is no extinguishment of the power. I think that the respondent's contention as to the basis of the rule is correct, that is to say, that it depends upon the fact that to hold otherwise would involve a divesting of estate vested in the heir. I think that where, as here, adoption involves no divesting of the heir's estate that the power has not been extinguished and that, it is capable of being exercised. The fact that Kailash survived his father and performed the sradh does not exhaust the spiritual benefit which Raj Chandra could derive from a son and I see, therefore, no reason why in the events which have happened, the power was not capable of being exercised by Raj Chandra's widow after Kailash's death without male issue. It is true that the claim in the present case is to the 12 annas which passed to Radharani, his widow, upon his death, but it is a claim put forward not to divest Radharani but a claim to the estate after her death, that is to say, it involves no divesting but only an ascertainment of Kailash's rightful heir after the death of Radharani. In so deciding I express no opinion as to the validity of the respondent's adoption if Kailash had by Will or otherwise empowered his widow to adopt and I assume for the purpose of this judgment that no such power was given her.
36. In the result the appeal fails and mast be dismissed with costs.