DURGI Vs. KANHAIYA LAL

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit by a minor, Kanhaiya Lal, for a declaration that he is the rightful adopted son of Durga Prasad deceased and is the Owner of the property given in the schedules attached to the plaint, and that the defendant Mt. Durgi, the widow of the deceased, has no right or share in the property, The plaintiff's case was that Lala Durga Prasad had, under a will, given authority to his wife to adopt a son after his death and in pursuance of that authority the widow adopted the plaintiff in December 1918 and as evidence of the fact, executed a registered deed of adoption on the 21 of December, 1918, that subsequently the plaintiff was treated as the adopted son by the defendant, but shortly before the suit she denied the factum of adoption and repudiated his status. The contesting defendant, in her written statement, denied the fact of adoption as well as its validity; and pleaded that the deed of adoption had been obtained from her at a time when she was entirely under the influence of her father-in-law, Janki Das, and that she was a minor and was incapable of fully realising the legal effect and consequences of her act. she further pleaded that under the will, dated the 1 November, 1917, her deceased husband made her in every way the exclusive owner of the entire property left by him and, even if the plaintiff's adoption were proved, he would have no right to the property as against her There was a further assertion that certain ornaments, jewels, guineas, currency notes and cash which came into her possession after the death of Durga Prasad were her stridhana to which the plaintiff had no title.

(2.) The learned Subordinate Judge has found that the plaintiff was duly adopted by the defendant under the authority given to her by her deceased husband and that there was no legal defect so far as the adoption was concerned. He has come to the conclusion that, although the defendant had not perhaps attained the age of 18 years, she was about 17 years at the time of adoption and had attained puberty and discretion, and was of age so far as the Hindu law is concerned, and that therefore the adoption made by her was Perfectly valid and binding. He has also held that the defendant treated the plaintiff as her adopted son subsequently and that there are numerous admissions of hers in various documents to that effect. As regards the cash, currency notes, sovereigns etc., he came to the conclusion that the defendant had failed to prove that they-were her stridhana property. He found, however, that the directions, given in the will of Durga Prasad were in no way binding on the plaintiff inasmuch, as by virtue of his adoption the plaintiff became entitled to the property and his adoptive father could not have disposed of any part of that property by will. He further found that even if there was a valid disposition the defendant had divested herself of all rights in her husband's property on the execution of the-deed of adoption. The learned Subordinate Judge accordingly decreed the claim in its entirety with the exception of certain jewels and ornaments that personally belonged to the defendant.

(3.) The defendant has come up in appeal and on her behalf some of the findings of the Court below are challenged. We may say at the outset that the property in dispute had been acquired by Lala, Durga Prasad apparently with the money which he had obtained on partition from his adoptive father. It was assumed by the Court below that the property so acquired was the ancestral property of the deceased and there was no issue framed on the question as to whether it was the self-acquired property of Durga Prasad. The learned Subordinate Judge has distinctly found that the property is ancestral. No ground is taken in the memorandum of appeal to the effect that it is not so. We have, therefore, assumed that the property in dispute was-the ancestral property of Durga Prasad over which he would have had no power of disposal by a will if a natural born son had been alive in his lifetime.