The appellant is a widow of Ram Saran Das, a Hindu, who died in December 1896, without issue, but leaving two widows, namely (1) the appellant, Mt. Kalawati, and (2) Mt. Basanti, and his mother, Mt. Bhawan Kunwar. He left considerable property, moveable and immovable, and shortly before his death he had executed a will on 6th December 1896, under which he made the appellant the absolute owner of his property and gave her full powers of disposal and alienation in any way she liked. He also fixed certain allowances for Mt. Basanti and Mt. Bhawan Kunwar and made provision for a residence for them. As regards adoption, he made the following provision, viz. :
"I authorise Mt. Kalawati to adopt when she wishes, after my death, anybody whom she likes. After making an adoption, Mt. Kalawati or the (adopted) son shall have no power to make a transfer of my property till the life-time of Mt. Kalawati. Mt. Kalawati shall act as guardian of the adopted son so long as he does not come of age, and, during his minority, she shall have power to carry on the management of the property. After the attainment of majority by the adopted son, he and Mt. Kalawati will have power to carry on the management and to enjoy the income of the property either jointly or in equal shares."
On 10th December 1896 the testator amended his will by the addition of the following provision:
"Further it is stipulated that if Mt. Kalawati should like to adopt a son, she shall not adopt any son of the relations of her family or of that of Mt. Basanti or Bhuwan Kunwar. If my brother, Jiwan, should give his son into adoption she should adopt him otherwise she should adopt some other boy, and she shall not have a power to make a gift. In case of necessity Mt. Kalawati shall have power to sell or mortgage a portion of the property."
The testator's brother having declined to give his son in adoption, the appellant, on 8th August 1918 adopted the minor respondent according to the usual forms as a son to herself and her deceased husband, and, of the same date, she executed a deed of adoption in his favour, which purported to proceed in accordance with the provisions of the will. The factum of adoption is not disputed. The minor respondent is a son of Mt. Chandrawati, a daughter of the appellant's brother, Brij Ballabh Saran. On 28th May 1924 the appellant instituted the present suit against the respondent, asking for a declaration:
"that the deed of adoption, dated 8th August 1918 executed by the plaintiff in favour of the defendant, is null and void as against the plaintiff according to law, and that the defendant not the adopted son of the plaintiff or her husband; nor can he acquire any right under the document aforesaid, in respect of the property left by Lala Ram Saran Das, deceased."Of the various grounds on which the appellant maintained the invalidity of the adoption, the only one to be now considered rests upon the prohibition contained in the addition to the will against adoption of "any son of the relations of her family or of that of Mt. Basanti or Bhuwan Kunwar,"within which the appellant contends that the respondent is included. The respondent in addition to traversing this contention, maintained that the claim for cancellation of the deed of adoption was time barred and that the whole claim was barred by estoppel. The Subordinate Judge, by decree dated 21st May 1995 decided in favour of the appellant and ordered and decreed :
"that it is declared that Dharam Prakash, the defendant, is not the adopted son of the plaintiff and that his adoption was invalid"
By an obvious error the words "or of her husband"are omitted after "plaintiff."The learned Judge held that the respondent was within the prohibited class and rejected the pleas of limitation and estoppel. On appeal this judgment was reversed by the High Court of Judicature at Allahabad and the suit was dismissed by decree dated 25th May 1928. The learned Judges agreed with the Subordinate Judge as to the plea of limitation, but they held, on construction of the prohibition, that the respondent was not affected by it; they also held that the appellant's claim was barred by estoppel. The appellant now appeals from that judgment.
The only question for their Lordships' decision is as to the proper construction of the clause of prohibition, as the respondent conceded that he was unable to support the judgment appealed against on the ground of estoppel. This ground was opened upon by the appellant's counsel, and their Lordships are of opinion that the respondent's counsel rightly conceded that there was no evidence to show that any representation of fact had been made by the appellant, as was found by the High Court. The question for decision turns on the sense in which the testator used the words "relations of her family,"which are the translation given of "khandani rishtadaran."There can be no doubt that the substantive "rishtadaran"will include relations by blood or marriage, but in what sense did the testator use the adjective "khandani"(of the family) ?
The learned Judges of the High Court have held that, in the case of a Hindu, his "khandan"consists of his lineal ascendants and descendants and his collaterals in the male line, and that sisters and daughters after marriage are transplanted from the family and acquire the lineage or gotra of their husbands. They point out that the respondent's mother, on her marriage, ceased to belong to her father's family or khandan, and that the respondent is therefore not a "khandani rishtadar"of the appellant and they hold that the testator must have used these words in the above sense. But, in the opinion of their Lordships, this construction defeats itself, for the three ladies namedon that viewhad all changed their family, on marriage, to the family of the testator and his father, and the effect of the learned Judges' construction of the clause would be to prohibit the adoption of agnates of his own family. Common sense is against any such intention on the part of the testator, and any such intention is inconsistent with his express direction to give a preference, in adoption, to his own brother's son. It is clear, in their Lordships' opinion, that the testator was using the word "khandan,"which is a word in general use, in a general sense as applying to blood relations of the ladies named, and that, accordingly, the respondent falls within the prohibited class and his adoption was invalid. Their Lordships will humbly advise His Majesty that the appeal should be allowed, that the decree of the High Court dated 25th May 1928, should be set aside, that the decree of the Subordinate Judge dated 21st May 1925, should be varied by inserting the words "or of her husband"after the words adopted son of the plaintiff"and should otherwise be affirmed, and that the appellant should ha the costs of this appeal and her costs in the High Court.