BANARSI DAS Vs. SUMAT PRASAD

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit brought by them against the defendants-respondents for a declaration that Sumat Prasad, defendant No. 1, is not the lawfully adopted son of Lala Badri Das and of his widow Musammat Kampa Devi, defendant No. 2, and that he has no title to their estate described in the plaint, and that all declarations made in the deeds dated January 20, ,1929, do not affect the reversionary rights of the plaintiffs in the estate of Lala Badri Das. Banarsi Das, plaintiff No. 1, died during the pendency of the suit, and after his death his son Amba Prasad has been substituted in. his place. The relations of the parties will appear from the following genealogical tree :

(2.) The plaintiffs alleged that Lala Badri Das died on February 29, 1916, leaving unto him surviving defendant No. 2, Musammat Kampa Devi, his widow, Banarsi Das his brother, plaintiff No. 1 and Mulchand plaintiff No. 2 his nephew. On or about January 9, 1916 Lala Badri Das gave a testamentary direction to the effect that his wife, defendant No. 2, after his death, should not [adopt any son, and in case she did so, the adoption should be confined to the members of his family. Lala Badri Das was governed by a "kulachar," or family custom, which prohibits adoption outside the family but which within the family permits the adoption of an only son and of a married person, and allows to make the adoption in the absence of any authority from her husband, but subject to the consent of the head of the family. Save as aforesaid Lala Badri Das was governed by the Mitakshara or Benares School of Hindu Law in all matters of adoption, marriage, inheritance and succession. On the death of Lala Badri Das his widow, defendant No. 2, succeeded to the estate as a Hindu widow and has since been in possession of the same.

(3.) On January 20, 1929 defendant No. 2 being actuated by motives of enmity, and with a desire of unlawful gain executed a deed in which she stated that, with the consent of defendant No. 4, the father of defendant No. 1, she had received from defendant No. 3 and taken in adoption defendant No. 1 as a son to Lala Badri Das and to herself on condition that during her life-time she Would continue to be the owner of the estate as if there were no adoption, and after her death the estate would devolve upon defendant No. 1 as the adopted son of Lala Badri Das and herself. On the same date defendant No. 3 as guardian of defendant No. 1, also executed a document in which she stated that she had given defendant No. 1 in adoption with the consent of defendant No. 4, on terms and conditions given in the deed of defendant No. 2 mentioned above. The alleged adoption is invalid and confers no title upon defendant No. 1 in the estate of Lala Badri Das according to Hindu-Law and usage, and also according to the usage and customs of the Agarwal Jain community inter alia for the following reasons : (a) For it was made with a wilfully corrupt and capricious motive. (6) For it was a mere device to enlarge the Hindu widow's estate of defendant No. 2. (c) For it was a mere device to transfer the estate of Lala Badri Das by a testamentary disposition which defendant No. 2 had no power to do. (d) For it was an adoption without the authority of Lala Badri Das and against his specific prohibition. (e) For it was an adoption of a person not permitted by family custom. The plaintiffs further alleged that they were the prospective reversioners of Lala Badri Das entitled to succession on termination of the widow's estate of defendant No. 2.