MUTSADDI LAL Vs. KUNDAN LAL

JUDGEMENT

(1.) The suit which gives occasion to this Appeal was brought by one Balmakund, claiming to be the reversionary heir of one Badri Das, deceased, against Mussamat Jamna, the widow of Badri Das, and Kundan Lal, the present respondent, whom she was alleged to have illegally adopted after her husband s death. Balmakund and Jamna have both died since the institution of the suit. The present appellants are Balmakund s representatives, and the whole question between them and the surviving respondent is whether the adoption of the latter by Mussamat Jamna was a valid adoption.

(2.) Badri Das was one of a family of Marwari Banias from Jaisulmere, who had settled at Jalalabad, in the Saharunpur district of the United Provinces, where he died childless on the27th October 1888. After his death, his widow entered into possession of his property, in which she had, at all events, a life estate. On the 17th of August 1891 she executed a deed of sale of a village which had been purchased with money left by her deceased husband ; and three years later, on (sic) 14thof August 1894 , Balmakund filed a suit in the (sic) of the Munsif of Kairana for a declaration of his rights (sic) reversioner, against Mussamat Jamna and the purchasers of the village. Prior to the institution of this suit, on the 12th of May 1894, the widow adopted the present respondent, and on the 28th of August 1894 she executed a deed confirming the adoption. The Munsif held the adoption valid, and dismissed Balmakund s suit on the 15th of August 1895. This decision was upheld on appeal by the Subordinate Judge of Saharanpur. Balmakund thereupon brought the present suit to set aside the adoption.

(3.) An attempt was made, in the early stages of the suit, to set up a custom among the Marwari Banias of Jaisulmere, under which the power of widows in regard to adoption was greatly extended; but the attempt failed, and the Subordinate Judge held that the case was governed by the Mitakshara law. This is probably true, but the High Court pronounced no decision upon this point, and it is unnecessary for their Lordships to determine it. All the schools of Hindu law recognise the right of the widow to adopt a son to her husband " with the assent of her lord." It is equally well established that this assent may be given either orally or in writing; that, when given, it must be strictly pursued; that she cannot be compelled to act upon it unless and until she chooses to do so; and that, in the absence of express direction to the contrary, there is no limit to the time within which she may exercise the power conferred upon her.