SARADA PRASAD PAL Vs. RAMAPATI PAL

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in a suit for a declaratory decree. One Shib Chandra Ghosh, the maternal uncle of the plaintiff, died on the 2nd October 1893, and left behind him two widows, Ananda Moyee and Chitrarekha. The junior widow, Chitrarekha, died on the 19th July 1902. The senior widow, Ananda Moyee, on the 2nd May 1903, took in adoption the first defendant Ramapati Pal, the infant son of her own brother, Harekrishna Pal. Deeds of gift and acceptance were executed on that date and the requisite ceremonies performed. On the 8th April 1909, the plaintiff, who would be entitled to succeed to the estate of his maternal uncle, after the death of his aunt and in the absence of an adopted son, commenced the present action for declaration that the adoption had in fact never taken, place and that, if it had taken place, it was invalid in law. The suit was defended by the infant, represented by his adoptive mother who herself was also joined as a defendant. The Subordinate Judge found on the evidence that the adoption did take place and that the necessary ceremonies were performed. This finding has not been assailed in this Court. The Subordinate Judge further found that the adoption had been validly made pursuant to authority conferred by Shib Chandra Ghosh upon his widows. The plaintiff has appealed to this Court, and on his behalf, the decision the Subordinate Judge has been assailed substantially on four grounds, viz., first, that Shib Chandra Ghosh did not, by his will of the 14th January 1893, confer any authority upon his widows to take a son in adoption, that as the adoption purported to have been made pursuant to an alleged testamentary authority, reliance cannot be placed upon authority of any other description, and that, in any view, the evidence as to oral permission is wholly unreliable; secondly, that as authority was given to the two widows jointly to adopt a son, it is not valid in law thirdly, that as the authority was intended to be exercised by the two widows jointly, it could not be exercised by the survivor of the two after the death of the other; and fourthly, that as the adoption was restricted to the near relations of Shib Chandra Ghosh, the widow was not competent to take her own nephew in adoption.

(2.) In support of the first ground, reliance has been placed upon the following passage from the Will of Shib Chandra Ghosh: "Permission will be granted to my two wives to adopt a boy to arrange to offer water and funeral oblations to me; the adopted boy will have to be taken from amongst my near representatives but my wives will adopt whomsoever they would select. It has been argued with reference to this clause, that the Will does not confer any authority upon the wives of the testator to adopt and that he intended to confer such authority by a separate deed. On behalf of the respondent, this view has been controverted and it has been suggested that the vernacular word is Haila and not Haibe, in other words, that the passage reads permission is granted and not permission will be granted. In the Court below, the original Will was not produced but only the Probate with a copy of the Will annexed thereto. In this copy, the word in question is somewhat illegible and may be read in either of the two ways suggested by the contesting parties. At the request, we sent for the original Will, and it transpires that in the original itself, the word is not quite legibly written, but our inclination is to hold that the word is Haibeh and not Haila. This, however; does not, in our opinion, make any difference, because we think it is plain, upon a construction of the entire clause, that the testator intended to confer upon his wives an authority to adopt thereby and not by a separate instrument. It would be unreasonable to hold that he provided in the Will for the details of the adoption and yet left over the very foundation for a separate document which, as a matter of fact, he never executed. We take it, therefore, as the parties concerned took it, at the time of the adoption, that the testator gave to his wives authority to adopt by his Will. The first ground urged by the appellant, consequently, fails.

(3.) In support of the second ground, it has been contended that an authority to the two wives of the testator to take a son jointly in adoption is invalid in law. Reference has been made to the decision of Jenkins, J. in Amrito Lal Dutt v. Surnomoye Dassee 24 Cal. 589 at p. 604 : 1 C.W.N. 345 the decree wherein was reversed by the Court of Appeal in Amrito Lal Dutt v. Surnomoni Dasi 25 C. 662 : 2 C.W.N. 389 on a different point and the reversal affirmed by the Judicial Committee in Amritlal v. Surnomoye 27 C. 996 : 27 I.A. 128 : 4 C.W.N. 549 and it has been argued with much force that a boy could not be taken in adoption simultaneously by the two widows. We are of opinion, however, that the language of the Will does not necessitate the inference that the testator intended his widows to do that which is contrary to law and is unknown among Hindus. To use the language of Sir Richard Couch in Akhoy Chunder Bagchi v. Kalapahar Haji 12 I.A. 198 : 12 Cal. 406 in construing a document of this description, the Court would consider that the person giving the authority intended his Widows to do that which the law allowed, and not to do something which was, if not absolutely illegal; very unusual and not practised among Hindus. To the same effect is the decision in Ranjit Lal Karmoher v. Bejoy Kishna Karmokar 39 C. 582 : 14 Ind. Cas. 17 : 16 C.W.N. 440. It appears to us that upon a fair and reasonable interpretation of the Will before us, we may hold that the testator did not contemplate simultaneous adoption of the same child by his widows; he rather intended the adoption of a son in accordance with law; i.e., by the senior widow and upon her failure or refusal by the junior widow. Ramji v. Ghaman 6 B. 498 Padajirav v. Ramrav 13 B. 160; Mondakini v. Adinath 18 C. 69. From this point to view, there was a valid authority conferred by the testator upon his wives, and the validity of the adoption cannot be successfully challenged on the second ground urged by the appellant.