MANOHAR LAL Vs. MTDURGI

JUDGEMENT

(1.) This is a Letters Patent appeal from a judgment of the learned Single Judge of the Lahore High Court. The facts briefly stated are as follows: one Amar Chand died about 25 years ago, leaving surviving him a widow, named Mt. Durgi. On 18 February 1943 Mt. Durgi adopted Ram Sewak, a son of Chhitar Mai, one of her husband's collaterals, with the consent of Chhitar Mal. A formal deed of adoption was executed and was later on registered. Manohar Lai who is also Amar Chand's collateral brought a suit for declaration that the alleged adoption of Ram Sewak by Mt. Durgi was invalid and could not affect his reversionary interest.

(2.) His allegations were that no adoption had taken place as a matter of fact and that it was just a paper transaction. He also alleged that the parties were governed by Hindu law according to which Mt. Durgi had no right to adopt any son without obtaining the consent of the nearest reversioners and since the plaintiff was the nearest reversioner and his assent had not been taken, the adoption was not binding upon him. Both Mt. Durgi and Ram Sewak contested the suit and denied the plaintiff's right to the declaration prayed for. They admitted that they were governed by Hindu law but contended that the provisions of the law, as applicable to them, had been considerably modified by custom and since the adoption had taken place with the consent of Chhitar Mal, who was the only major reversioner of Amar Chand at the time the adoption took place, it was valid and legal. The following issues were raised by the trial Court: 1. Did defendant 1 adopt defendant 2 to her deceased husband? 2. Are not the parties governed by pure Hindu law in matters of adoption? If not, to what extent, Hindu Jaw has been modified by custom?

(3.) Is the adoption of defendant 2 valid under the Hindu law as modified by custom and as such is binding upon the plaintiff? The first issue was found for the defendants. As regards the second issue, it was held that "the law obtaining between the parties is that in the absence of an express or implied authority from her husband Mat. Durgi could adopt any of the agnates of her husband or any other person with the oonsent of her husband's kinsmen. Issue 3 was also found in the defendants favour and the plaintiff's suit was dismissed with costs. The plaintiff, after having unsuccessfully appealed to the District Judge, preferred a second appeal to the High Court, Lahore. It appears from the judgment of the learned Single Judge that the only point argued before him was whether Mt. Durgi was competent to adopt a son to her husband without the latter's authority but with the consent of his kinsmen. This question, the learned Single Judge, found against the plaintiff and dismissed his appeal. 3. The parties are Aggarwals of Gurgaon District and both sides are agreed that in matters of succession, adoption, etc., they are governed by their personal law. The appellant's learned Counsel contended that the strict provisions of Hindu law being that a widow could adopt a son to her late husband only if her husband had given her an express authority to do so, the adoption of Ram Sewak by Mt. Durgi which was admittedly without such authority, could not be upheld unless the defendants adduced evidence to prove a custom modifying the Hindu law on this point and since no evidence had been adduced at all in proof of any custom, the suit should have been decreed. This contention, in my opinion, is based upon two assumptions: (1) that the basic idea underlying adoption among Hindus is religious and the object of adopting a son being the spiritual benefit of the husband, no adoption is valid unless it is made by the husband himself or with his authority; (2) that the text of Shastras definitely prohibits an adoption by a widow without the husband's authority.