HIRA LAL Vs. PIAREY LAL

JUDGEMENT

(1.) This appeal arises from a suit brought by several of the members of a joint Hindu family for a declaration that an adoption of defendant-respondent 1, Piarey Lal by defendant-respondent 2, Mt. Champa Devi, widow of Durga Prasad, was invalid. Darga Prasad was, as is now admitted, a member of the joint Hindu family to which the plaintiffs belong, when he died in August 1921. A deed of authority to adopt a son was executed in favour of Mt. Champa Devi on 1 August 1921, and registered at the office of the Sub-Registrar on the same day. But it was claimed that at that time Durga Prasad was delirious and unconscious, and that the deed could not be considered to be legally valid. On the facts the lower Court has found that the deed was valid. But before considering this part of the case we propose to deal with the legal point that has been argued at some length before us, viz., that even if it be assumed that Durga Prasad gave authority to his widow to adopt a son, the power to adopt became extinguished on the death of Durga Prasad because his property vested in the plaintiff by survivorship.

(2.) For this proposition, which has been pressed very strongly by Sir Tej Bahadur Sapru on behalf of the appellants, no authority of this Court has been cited, nor does it appear that any case raising this particular question of law has ever come before this Court. If the proposition were to be accepted it would follow that a large proportion of the adoptions in this province must be held to be invalid. In the well-known case of Bhoobun Moyee Debia V/s. Ram Kishore Acharjee [1863-66] 10 M.I.A. 279 it has been laid down by their Lordships of the Privy Council that the estate of a deceased son vested in possession cannot be defeated and divested by the mere gift of power of adoption to a widow, and it has been sought to extend this principle and to argue that because Durga Prasad's share in the joint family property became vested at his death in the remaining members of the family the widow could not defeat or divest them. There are certain obvious objections to this argument, the first of which is that Durga Prasad was not the owner of a defined estate; he could only be said to be the owner of a fluctuating interest in the joint family property, and it does not therefore appear to be accurate to say that on his death his estate vested in the surviving members. The number of sharers in the joint family property became diminished by one on his death, and the number of cosharers would be increased by one if the adopted son be held to be validly adopted. But that is not the same thing as to say that the estate of Durga Prasad which never had any separate existence, became vested in the other members of his family. Sir Tej Bahadur Sapru claims that the authority of the Bombay High Court is in favour of his argument, and he has quoted the cases of Bhimabai Krishnappa V/s. Tayappa Murarao [1913] 37 Bom. 598, and of Adiveva Fakirgowda V/s. Chanmallgowda Ramangowda A.I.R. 1924 Bom. 393. Both these cases, however, refer to vatan property and not to joint family property under the Mitakshara law.

(3.) It was held that on the death of the last male owner the property vested immediately in his heirs, and could not be subsequently divested by an adoption made by his mother. In the case of Madana Mohana Ananga V/s. Purushothama Ananga [1915] 38 Mad. 1105, (the decision of which is clearly against the present appellants) the learned Chief Justice refers to a previous opinion of his own expressed in the case of Sinnachami V/s. Ramaswamy Chettiar [1911] 22 M.L.J. 85, to the effect that there is no authority to show that the principle of the decision in Bhoobun Moyee's case does not apply in the case of a joint family, and this has been quoted in favour of the appellants in the present suit; but the Madras case was concerned with an impartible estate, in which the succession was not by survivorship but by inheritance, and the circumstances of taking in adoption would, therefore, be entirely different from those of a family in which succession is by survivorship. In the case of Chandra V/s. Gojarabai [1890] 14 Bom. 463 there is no real analogy to the present case, because Nana as the last surviving member of a joint Hindu family had become the full owner of the property and his widow could not be divested by the adoption of a son by his brother's widow. Finally some reliance has been placed on certain sentences in Mayne's Hindu Law, 9th edn., p. 153. It is there remarked that although the distinction between the cases of vesting by inheritance and by survivorship had been the basis of a number of decisions in India, it may be doubted whether this distinction can still be maintained in view of the recent decisions of the Privy Council. The conclusion of the commentator, however, is that the only question hereafter will be whether or not the power has become extinguished by reason of circumstances which have arisen since the grant of power to adopt. If the authority is alive the question of the vesting of an estate whether by inheritance or by survivorship is immaterial.