LACHHMI NARAIN BALU Vs. GHISA BIHARI

JUDGEMENT

(1.) This is a petition filed by Lachhmi Narain under O. XLVII, R. 1 of the Code of Civil Procedure praying for review of my judgment dated 11-8-1958 in Lachhmi Narain v. Ghisa etc., Regular Second Appeal No. 524 of 1954. The appeal had been filed by Lachhmi Narain defendant against the concurrent judgments and decrees of the two Courts below holding that he had failed to show his adoption to be valid. Mr. Daljit Singh who had appeared on behalf of the appellant- petitioner in Regular Second Appeal No. 524 of 1954 had contended that the entry in the riwaj-i-am as to the person who could be adopted is always construed to be indicatory and not mandatory. In support of his contention, the counsel had relied on Shitab Singh v. Hazari Singh, ILR 7 Lah 117: (AIR 1926 Lah 207) and Jowala v. Dewan Singh, AIR 1936 Lah 237. These two cases were distinguished in the judgment given by me. In AIR 1936 Lah 237 the power of a male to adopt a remoter collateral, although a nearer collateral is in existence, was considered and I was of the opinion that this decision could not help the appellant's counsel in the instant case where the power of a widow to adopt is concerned. In ILR 7 Lah 117: (AIR 1926 Lah 207) Rajput widow of Gurgaon District was held authorised to adopt one of her husband's male collaterals as her husband's heir and therefore I considered this authority also distinguishable. The view that I took in my decision dated 11-8-1958 was that a widow, normally speaking has no power to adopt under custom and that if such a power is conferred by the entry in Wilson's Tribal Custom for Gurgaon, it must be exercised strictly within the narrow limits circumscribed by the entry itself. The appellant admittedly is not one of the widow's husband's made relatives related through males, as prescribed in the entry in question. No other authority was brought to my notice at the time of the hearing of the appeal.

(2.) Mr. Ram Sarup has, in support of his petition for review, submitted that in some cases elating to Brahmans of the old Delhi territory, in which the village of the appellant was included before 1911, when Delhi was created as a separate province, consent of the collaterals of widow's husband was not material if the widow had been given the power to adopt her deceased husband. Without deciding whether or not such instances are relevant for the purposes of determining the validity of the adoption in the present case, this contention obviously cannot prevail when I am asked to review my previous decision. As early as 1922 the Judicial Committee of the Privy Council in Chhajju Ram v. Neki, ILR 3 Lah, 127: (AIR 1922 PC 112), laid down in explicit terms that a Court hearing an application for a review of a decree of a decree made on appeal has no power to order a review upon the ground that the decision was wrong on the merits. Viscount Haldane, who delivered the judgment of the Privy Council, made the following important observations:

(3.) M. Ram Sarup next contended that my attention at the time of the hearing of the appeal was not drawn to three very important decisions which, if brought to my notice, would have changed the fate of the decision of the appeal. The first of such authorities to which he has drawn my attention is Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132, in which it is laid down that the restriction that adoptee should be of the same gotra is only a recommendation, and a person of a different gotra may be adopted by doctrine of factum valet. This was a case of Jats of Ballabgarh. The counsel submits that the ratio of this case which construes the restriction on the adoptee being of the same gotra as merely recommendatory should be applied in constraining the entry in the instant case to be also merely directory and not mandatory. The second case to which my attention has bee drawn is Hem Singh v. Harnam Singh, AIR 1954 SC 581, in which the Privy Council's observation is approved and it is observed that the rules relating to ceremonies and to preferences in selection should be held to be directory and adoptions made in disregard of them are not to be considered invalid. The third case to which a reference has been made is Lehri v. Mst. Kauri, Regular Second Appeal No. 201(P) of 1953, decided by Gosain J. on 30-4-1958, in which the learned Judge followed the Privy Council and the Supreme Court decisions mentioned above. This case also dealt with the power of adoption by a male. These three cases appear to me to be merely links in the chain of argument which the appellant may advance in support of his contention. Whether or not a reference to these authorities would have induced me to come to a different conclusion, it certainly does not, in my opinion, empower me to review my previous decision. In view of the Privy Council authorities in ILR 3 Lah 127: (AIR 1922 PC 112) and AIR 1934 PC 213, it is hardly necessary to discuss the various decisions of the High Courts cited by Mr. Ram Sarup in support of his contention, that the point being of great public importance I should reopen the decision on the merits. The history of Ahirs as contained in the Gazetteer of Gurgaon District is, in this view of the matter, also not relevant. I asked Mr. Ram Sarup if he had any direct decision, dealing with the power of a widow to adopt to her deceased husband, in which the power conferred was liberally construed as is contended by him; he was, however, unable to cite any such authority. As held in Rajendra Prasad v. Gopal Prasad, AIR 1930 PC 242, at page 245 "it is well established law in India that authority given to a wife to adopt has to be strictly pursued". Also in this connection see Chowdry Pudum Singh v. Koer Oodey Singh, 12. M. I. A. 350, at p. 356.