BHUBANESWARI DEBI Vs. NILCOMUL LAHIRI

JUDGEMENT

(1.) BHUBANESWARI Debi, as the mother and guardian of Jotendromohun Lahiri, sues to recover, on behalf of her son, half the estate of Rammohun. Rammohun died, leaving two brothers, and a widow, Chandmoni. He left no son, and consequently the widow succeeded and took the widow's estate, and until her death no one could be designated as his reversionary heir. She died on the 15th June 1867. Shibnath, one of the brothers of Rammohun, died on the 28th May 1861, in the lifetime of Chandmoni, having given power to his widow to adopt a son. He consequently did not succeed to any portion of the estate of his brother. Rammohun, the other brother of Rammohun (we have not got the precise date of his death), died before Chandmoni, leaving a son, Nilcomul, who was the defendant in the suit. If the widow of Shibnath had adopted a son during the lifetime of Chandmoni, that son would have been entitled to a half share of the estate of Rammohun as one of the reversionary heirs of equal degree with Nilcomul, who was also a nephew. But the allegation is that, in consequence of Nilcomul's fraud in setting up a forged will, the widow of Shibnath was unable to get anyone to give her a son in adoption, and could not adopt until after the death of Chandmoni. In consequence of her not having adopted a son in the lifetime of Chandmoni, Nilcomul, the defendant, became entitled to the whole of the property of his uncle unless his fraud entitles the boy, who was subsequently adopted by the widow of Shibnath, to come in as the heir of one moiety of the estate.

(2.) IT appears that the widow from time to time tried to get different persons to give, her a son in adoption, and that they refused, upon the ground of the forged will which had been set up by the defendant; and that consequently she could not get anyone to give her a son in adoption.

(3.) THE widow never could, by adoption, if there had been no fraud, have made the present plaintiff a reversionary heir of half the estate of Rammohun, because he was not in existence at the time of Chandmoni's death. According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. It appears from the evidence of the natural father of the present plaintiff that the widow applied to him in 1277-that is, in the year 1870-to give her his son in adoption, and that at that time he gave to her in adoption his second son.