JAGANNATH RAO DANI Vs. RAMBHAROSA

JUDGEMENT

(1.) The appellant and the second respondent are the reversionary heirs of Baboo Rao Dani who died on 6th November 1918, leaving him surviving his widow, Anandabai, and no issue. Anandabai died on 27th November 1924, and on 07-04-1926, the suit out of which this appeal arises, was instituted by the reversioners claiming his estate. The defendant to the suit, respondent 1, before the Board, denied their right, alleging title in himself as the duly adopted son of Baboo Rao Dani. The factual of his adoption by Anandabai on 25 April 1920 is not seriously disputed. The issue between the parties is as to its validity in law. The family was found by the trial Judge and was admitted in the Court of the Judicial Commissioner to be governed by the Bombay School of Hindu law, under which a widow has in herself power to adopt', subject only to such restriction if any, as may have been imposed upon her by her husband. The appellant's contention in the present case is that Anandabai's power was so restricted by Baboo Rao Dani's will made on 26-11-1911, and that the adoption of respondent 1 was in violation of its terms. The provisions of the will, the due execution of which is not in dispute, so far as regarded adoption, were as follows: "After all this is done (i. e., after certain dispositions of the will have been carried out) a boy should be taken in adoption to perpetuate the name of ancestors and manage the estate. No boy has been yet taken in adoption. It is expected that (any) of my paternal uncles' sons may get a son. If he gives (the boy) my wife should take him in adoption. Seven years 'time is allowed for this. After seven years Jiwaji's younger son Bhagwati should be taken in adoption. "Seven years' time has been allowed for adoption, but if Vyenkat Rao Naik, Rao Bahadur Maddik, Gagraj Singh and Sadashiv Rao Garad, think that (a boy) should forthwith be taken in adoption, there is no objection to my wife's (adopting a boy immediately) according as they may advise. However, the debts should be satisfied and property of an income of five hundred rupees should be set aside for the School Department, first, and a boy should be taken in adoption for the remaining property. If it is decided to take (a boy) in adoption, mauza Kolar should be reserved for my wife and for the maintenance of the adopted boy (the property) should afterwards be placed under the management of the Court of Wards or of panches of whom Vyenkat Rao Naik should be the sir panch. The boy should be very well educated. He should be sent to England if possible. If this boy does not exist,, which God may forbid, any boy can be taken in adoption,"

(2.) Various defences were raised by respondent 1 which were embodied in the issues settled by the trial Judge. They seem in the main to have been directed to two points: that the restrictions in the will were not binding upon the widow, or alternatively that they had been substantially complied with. Under the first head, it was contended that the will, which was executed by the testator on the eve of a journey to Delhi, was to take effect only in the event of his death before his return. He did, in fact, return in safety and lived for another seven years, and if this contention prevailed, the will, and with it the restrictions upon the widow's power of adoption, ceased to have effect automatically upon the testator's return. It was also alleged that the will was revoked orally, and that after his return the testator, expressly authorized the adoption of respondent 1. All these defences, upon which a considerable body of oral evidence was adduced were rejected by the trial Judge.

(3.) Under the second head, the trial Judge held, it established that Anandabai had asked the mother of Bhagwati, the boy of the testator's choice, to give him in adoption, but that she had refused. Under these circumstances, he was of opinion that the adoption of respondent 1, who was Bhagwati's elder brother, was a substantial compliance with the terms of the will. In this connection, he took the vernacular words, words which are rendered in the official translation as "if this boy does not exist,"as equivalent to "if he is not available."He also seems to have regarded the seven years' interval which was to elapse before, Bhagwati could be adopted, as to be reckoned from the date of the will. On all these points his judgment is attacked before the Board, while the adoption is supported on the grounds which the trial Judge rejected. The result of the suit in the trial Court was that the adoption of respondent 1 was held to be "valid and unimpeachable,"and the suit was dismissed.