HARENDRA NATH AVASTI Vs. SHIBO SUNDARI DEBI CHOWDHURANI

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiff, Harendra Nath Avasti, against his adoptive mother Siva Sundari Dbeya Chowdhurani to establish his claim to the property of his adoptive father, Tarak Nath Avasti. The plaintiff claimed that his title to all the property movable and immovable left by Tarak Nath Avasti might be declared, that the will of Tarak Nath Avasti which purported to create life-interest in favour of the defendant and postpone the plaintiff's interest might be held to be invalid and inoperative; that it might be declared that defendant had by her conduct forfeited her right, if any, to hold possession of the property. The plaintiff also asked for an account, a Receiver and other reliefs. The defendant denied the adoption and in other respects resisted the plaintiff's claim. The learned District Judge has passed a decree in favour of the plaintiff declaring his title to the property subject to the life-interest of the defendant, but in other respects, has thrown out the plaintiff's suit. The plaintiff has appealed. The learned District Judge advised the parties to be reconciled, and we also adjourned the hearing of this appeal in order that they might come to terms. Before us it was stated that defendant was willing to take the plaintiff back into her house as her son, but was not able or disposed to make him any separate allowance for his maintenance. The plaintiff declines to live with, his mother, we are, therefore, constrained to decide the case according to the law as we understand it.

(2.) There is now before us no contest as to the facts of the case which may be stated shortly as follows:-Tarak Nath Avasti died on 25 September 1878, leaving the defendant his widow him surviving. He was the last surviving male member of a Hindu joint family. For the purposes of this appeal it is conceded that the family is governed by the Mitakshara School of Hindu Law, and that the properties left by Tarak Nath Avasti were ancestral properties in his hands, Tarak. Nath Avasti left a will dated 23 September 1878. It is addressed to his wife, the defendant. It purported to leave all his property to the defendant for her life and to confer on her authority to adopt a son. After her death the adopted son was in his right of sonship to be entitled to all the properties left by the defendant and the testator, and the defendant was to have no power of alienation. She was to pay a sum of Rs. 4 per mensem to Fuleshwari Chowdhurani, the testator's uncle's widow. Of this will the defendant obtained probate from the District Judge of Rajshahi on 31 March 1892. The judgment in the case which had commenced in 1889, was delivered on 4 November 1891. The grant of probate was hotly contested by Jadu Nandan Sukul, the natural father of the plaintiff and brother-in-law of the defendant but during the progress of the proceedings the parties came to an agreement. The defendant agreed to adopt the plaintiff, who was Jadu Nandan's second son, and aputradan patra was executed on 21 February 1890 by both parents of the boy. In that they expressly admitted the will of Tarak Nath Avasti. Though the defendant in her written statement denied that the adoption was duly effected, there is no doubt now that it was complete, and this appeal has been argued on that assumption. There can be no doubt also that in consideration of the defendant taking the plaintiff in adoption his father Jadunandan agreed to accept the will as genuine, and not to further contest the grant of probate. He must also be taken to have agreed that the provisions of the will should be upheld, namely, that the defendant should retain the property for her life, and that only on her death it should go to the adopted son. The plaintiff was about 3 years of age at the date of the adoption and attained his majority in 1905. On 29 May 1906 ho filed this suit.

(3.) It was argued before us, as it was before the District Judge, that the authority to adopt was not conferred by the will itself but was a verbal authority given before or contemporaneously with the will. There is no evidence in support of this contention except the wording of the will itself. It is true that the words verbal authority" are used but they are evidently employed in contradistinction to the document on a stamped paper, to which reference is made, we have no doubt that the authority to adopt was given by the will itself, and we have no evidence of any other authority . written or verbal.