SARASWATI KUER Vs. DEBENDRA SINGH

JUDGEMENT

(1.) This appeal by the plaintiffs against the judgment and decree of the Additional Subordinate Judge, 3rd Court, Darbhanga, arises under the following circumstances, one Rai Babufam Singh alias Babulal Singh resident of village Shafipur Barua, district Darbhanga, had three wives. From his first wife he had a son, Kali Prasad Singh, who died during his lifetime leaving behind his widow Mt. Abhiraj Kuer who is plaintiff 2 in the present suit. Rai Baburam Singh had two other wives namely, Mt. Rewati Kuer, defendant 2, and Mt. Saraswati Kuer, plaintiff 1. On 21-1-1907 Rai Baburam Singh alias Babulal Singh executed a registered will (Ex. N) by which he permitted Mt. Rewati Kuer, his second wife, and Mt. Saraswati. Kuer, his third wife, each to adopt three sons successively, one in absence of another in case he did not adopt any son to himself in his own lifetime. By that will Rai Baburam Singh made some other provisions in respect of his properties but it is not necessary to narrate the same at this place. On 26-4-1923 Baburam Singh died without adopting any son to himself. On 21-2-1924 Mt. Rewati Kuer and Mt. Saraswati Kuer made a gift of some of the properties left by their deceased husband in favour of Mt. Abhiraj Kuer by a registered deed of gift (Ex 9). On 30-4-1926 probate in respect of the will left by Rai Baburam Singh alias Babulal Singh was granted to his two widows Mt. Rewati Kuer and Mt. Saraswati Kuer. On 11-8-1942 Mt. Rewati Kuer executed a registered document in which she asserted to have adopted one Mahendra Singh. Soon after the execution of that document Mt. Saraswati Kuer and Mt. Abhiraj Kuer filed T. S. 66/42 for a declaration that Mahendra Singh had not been legally adopted by Mt. Rewati Kuer. On 31-5-45 T. S. 66 of 1942 was decreed as the factum of adoption of Mahendra Singh in accordance with Hindu Law had not been established. On 6-6-45 Mt. Rewati Kuer adopted Devendra Singh, brother of the said Mahendra Singh. After this adoption, Devendra Singh was given the name of Awadhesh Kumar Singh. In proof of such adoption she executed a registered deed of ekrarnama dated 9-6-45 (Ex. A). On 21-8-48 Mt. Saraswati Kuer, plaintiff 1 & Mt. Abhiraj Kuer, plaintiff 2, instituted the present suit for a declaration that Devendra Singh defendant 1, was not adopted by Mt. Rewati Kuer, defendant 2, as the dattak son of Rai Baburam Singh, and that such an adoption even if made was invalid in law, and that defendant 1 had acquired no valid title to the properties left by the said Rai Baburam Singh alias Babulal Singh. In their plaint the plaintiffs alleged that defendant 1 was never adopted and no ceremony of adoption was ever performed. It was further alleged that Rai Baburam Singh was governed by Mithila School of Hindu Law, and the authority given by him under his will to his widows to adopt was invalid. Hence, defendant 1 could not have been validly adopted by defendant 2 in the dattak form of adoption. It was further alleged that Rai Baburam Singh had during his lifetime made Jagdish Singh, one of his gotias his kartaputra after which the power given to the widow to adopt came to an end. The plaintiffs further alleged that defendant 1, who was the son of Mt. Aloka Kuer, daughter of Mt. Lily Kuer, who is sister of defendant 2 could not have been validly adopted in dattak form as son of Rai Baburam Singh.

(2.) The suit was contested by the defendants who pleaded, inter alia, that defendant 1 had been validly adopted in dattak form by Mt. Rewati Kuer defendant 2. It was further pleaded that the ancestors of Rai Baburam Singh were residents of village Majhauli in the district of Gorakhpur, Uttar Pradesh. Prom there they went to Bhengeri and from there they subsequently migrated to village Shafipur Barua in the district of Darbhanga. While they were at Majhauli and Bhengeri they were governed by Mitakshara School of Hindu Law. After migration also the ancestors of Rai Baburam Singh continued to be governed by their family laws, customs and traditions which were prevalent in Gorakhpur district, that is to say, they continued to be governed by the Benares School of Hindu Law. It was further pleaded that they never adopted the customs and laws of the Mithila School of Hindu Law. The defendants asserted that in the family of Rai Baburam Singh, the rites and ceremonies observed at the time of marriages and deaths were those which are observed in the Benares School of Hindu Law and the family never adopted the rites for those occasions enjoined by the Mithila School of Hindu Law. It was further alleged by them that Rai Baburam Singh was quite competent to authorise his widows to adopt, and that defendant 1 has been validly adopted by defendant 2. The defendants further pleaded that Jag-dish Singh was never adopted as Kartaputra of Rai Baburam Singh.

(3.) The learned Subordinate Judge accepted the version of the defendants that Rai Baburam Singh was governed by the Benares School of Hindu Law, and that defendant 1 had been validly adopted in dattak form by defendant 2. On these findings the suit has been dismissed but without costs.