DALPATSINGHJI NAHARSINGHJI Vs. RAISINGJI NAHARSINGJI

JUDGEMENT

(1.) The facts which have given rise to this appeal are briefly these. Narsingji, Thakor of Mehelol, died in the year 1883, leaving two widows, Dariaba and Bajirajba. Bajirajba gave birth to a son named Raisinghji, whose legitimacy was disputed by Dariaba. Bajirajba filed Suit No. 967 of 1886 to establish that Raisingji was the natural son of Narsingji. She succeeded in the suit, but in appeal the High Court reversed the decree of the trial Court and held that Raisinghji was not the son of Narsingji. There was an appeal, however, preferred by Bajirajba to Her Majesty in Council with the result that the decision of the High Court was reversed and that of the trial Court restored in 1898. The High Court decided the appeal on the 25th July 1892. A few days after that Dariaba adopted Dalpatsingji, the present plaintiff, on the 8th August 1892, before the application for leave to appeal to Her Majesty in Council was made on the 17th November 1892. The estate was managed by the Collector after 1895 as the guardian of Dalpatsingji, and after 1898 on behalf of Raisingji. Even after Raisingji attained majority the management of the estate remained with the Collector of the Panch Mahals under Section 26 of the Gujarat Talukdars Act (Bom. Act VI of 1888). The estate among other things consists of Talukdari estate and certain wanta lands. The Collector continued to give varying sums by way of maintenance to Dalpatsingji even after the judgment of the Privy Council. In September 1909, Dalpatsingji made an application to the Collector requesting him to bring about an amicable settlement between him and Raisingji. In this application he put forward his claim to a part of the estate as the adopted son of Narsingji. In 1910 it is said that Raisingji agreed to give to Dalpatsingji certain land known as Kankanpur wanta by way of jivai (maintenance). But Raisingji failed to carry out this agreement, and Dalpatsingji filed the present suit to enforce his rights as Narsingji s adopted son. He claimed one-fifth share in the estate and, in the alternative, the Kankanpur wanta both according to law as well as under the agreement of 1st June 1910. The defendant, Raisingji, who is the really contesting party, resisted the claim on various grounds. The learned Joint Judge, who heard the suit, decided against the plaintiff on the material issues, and dismissed his claim.

(2.) The plaintiff has now appealed to this Court. Mr. Coyaji on his behalf has argued two points only in support of the appeal. Firstly, it is contended that even if the plaintiff s adoption be invalid he has a right of maintenance on his adoptive family according to Hindu law, and secondly, that under the agreement the plaintiff is entitled to the Kankanpur wanta. It is conceded by Mr. Coyaji - and I think very properly conceded-that after the finding of the Privy Council as to the status of Raisingji, the plaintiff s adoption by Dariaba cannot be maintained as valid. Narsingji having a natural son according to the finding of the Privy Council, at the date of adoption, Dariaba could not be presumed to have any authority from her husband to adopt. The fact that the adoption was made by her at a time when the High Court had decided in her favour and against Raisingji s status, and before an application for leave to appeal to Her Majesty in Council was made in November 1898, cannot affect the question. It is not necessary to deal with this point any further as it is not contended before us that the adoption of the plaintiff by Dariaba is valid according to Hindu law.

(3.) As regards the contention that a boy, whose adoption is found to be invalid, has a right to be maintained out of the estate of the adoptive family, there is neither text nor precedent in support of it. Dariaba had no authority to adopt. The mere fact that ceremonies were properly performed and that Dariaba thought that she had authority to adopt would not affect the question. As pointed out by Sir Michael Westropp C.J. in Z, 397. "An invalid adoption works nothing. It leaves the alleged adoptee precisely in the same position which he occupied before the ceremony, no matter how formally it may have been celebrated." The Madras High Court has taken the same view in Bawani v. Ambabay (1863) 1 M.H.C.R. 363 which is referred to with approval by Westropp C.J. in Lakshmappa s case. Mr. Coyaji relied upon certain observations in Ayyavu v. Niladatchi (1862) 1 M.H.C.R. 45. But they were not necessary for the decision of the case. It is difficult on principle to allow the contention that even though the adoption may be invalid, the adoptee has a legal right to maintenance in the adoptive family. I say this strictly with reference to the facts of this case. There is no question of acquiescence here on the part of Raisingji a part from the agreement of June 1910. The plaintiff is not proved to have lost his right in the family of his birth. It may be that in consequence of the Mehelol Estate being far more valuable than the estate of his natural father he may have preferred to take his chance, whatever it may be, in the adoptive family. Mere omission on his part to assert his right to a share in the estate of his natural father cannot enhance his rights in the family of adoption. It is not necessary to consider whether the plaintiff would have any right of maintenance in his adotive family, if it were proved that he had in fact lost his status in the family of his birth, though even then it would be difficult to accept the plaintiff s contention. I hold that having regard to the facts of the case, the plaintiff s adoption is invalid and that he has no legal rights in his adoptive family.