BIJOY KRISHNA KARMAKAR Vs. RANJIT LAL KARMAKAR

JUDGEMENT

(1.) The question I have to decide in this case is which of two adoptions is legal. The facts are simple and, if I accept all the evidence that has been given before me, are as follows: - One Shib Krishna Karmakar, a Hindu governed by the Bengal School of Hindu Law, and a Sudra by caste, died on the 29th November, 1903, leaving two widows, Biraja Sundari, the senior and Shashibala Dasee, the junior. The day before his death he executed an anumatipatra, the translation of which is as follows: "Anumatipatra for taking adopted son is executed to the following effect by Sri Shib Krishna Karmakar, father s name the late Ramkristo Karmakar, by occupation gold and silversmith, inhabitant of Sabhar, in favour of the first wife Sreemutty Biraja Sundari Dasee and the second wife Shashibala Dasee. I am now ailing, having been attacked with cholera. There is no knowing what may happen to the transient body. I have no son born of my loin, although, in the hope of perpetuating the generation, I, have married two wives successively, but up till now no son has been born. Consequently by this anumatipatra I am giving permission in writing that when I shall be no more, each of my two wives shall be at liberty to act according to their own religious tenets by adopting three sons successively that is one after another. It is also permitted that each of my wives shall live in my ancestral dwelling-house with her adopted son. On the other hand, if she goes to live in another place with her adopted son, she shall not have any right to the moveable and immoveable properties to be left by me." Acting under the power conferred on her by this instrument, Shashibala, the younger widow, adopted the defendant on the 13th April, 1905. Biraja Sundari, the elder widow, subsequently, that is, on the 9th March, 1908, adopted the plaintiff, for whom she is acting as next friend in the present suit. This suit is brought to have it declared that the adoption of the defendant is void and inoperative, and that the plaintiff has been validly adopted. The plaintiff has satisfactorily proved that his adoption was performed in a valid and regular manner, and it is not sought to impugn its validity on any ground except that the defendant had been previously adopted, a point which it is admitted is conclusive if it is substantiated. The plaintiff does not admit that the earlier adoption was satisfactorily proved alleging that the circumstances of the adoption are so suspicious that I ought not to accept such evidence as there is of the identity of the adopting woman with Shashibala. He also argues that supposing the earlier adoption was regular in point of form, the younger widow had no power to adopt till the elder widow had refused to adopt. The plaintiff bases his legal argument on the decision in Rakhmdbai v. Radhabai (1868) 5 Bom. H.C. (App.) 181. In that case the deceased husband gave no power to adopt, but by the law prevalent in Bombay it was held that a widow had a right to adopt, and the senior widow had a right to adopt without the consent of the junior. This case was followed in Amava v. Mahadgauda (1896) I.L.R. 22 Bom. 416, and was approved of in Mondakini Dasi v. Adinath Dey (1890) I.L.R. 18 Calc. 69, where it was held that when a power was given to two widows to adopt a particular person, the younger widow had power to adopt on the refusal of the elder to do so.

(2.) These cases do not, it will be observed, completely cover the present, but they recognise the prior claims of the senior widow in a way that suggests that where two widows have a power to adopt, the general rule is that the senior widow has a right to exercise her power of adoption before the junior one does so. In the text books it is laid down that the junior widow cannot adopt without the consent of the senior widow, unless the latter is leading an irregular life: see Mayne para. 118, and West and Buchler, Bk. iii, Section iii, B. 3, 16, p. 976. Counsel for the defendant does not deny that the law is so, as far as Bombay is concerned, but suggests that the law is not the same in Bengal. This contention seems to me to be baseless, particularly in a case like the present, where there seems to be no difference {in the classes of the husband and the two widows, for the law laid down in Rakhmabai v. Radhabai (1868) Bom. H.C. (App.) 181 depends ultimately on the text quoted from Vishnu in Article XLIX of Book IV of Colebrook s Digest, and perhaps on that quoted from Dackshaiyana, Article LI, and both of these writers are, I understand, of as much authority in Bengal as they are in Bombay. In addition to this, counsel for the defendant has not attempted to show me any authority for the rule which he suggests applies, namely, that the first adoption should prevail, whichever widow adopts, a rule the demerits of which I need not discuss.

(3.) The result is, that I hold that, apart from the terms of the anumatipatra, the junior widow had no right to adopt before the senior widow had refused to do so.