BHUPENDRA MOHAN ROY Vs. PURNA SASHI DEBI

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Fort William in Bengal dated 20 May 1935, reversing the judgment and decree of the First Additional Subordinate Judge of Dacca dated 17 June 1932, whereby he had dismissed with costs a suit brought by respondent 1, Srimati Purna Sashi Debi, (hereinafter called the respondent) against the appellants and others. The respondent is the widow of one Bhabendra Mohan Roy (hereinafter called the testator) who died on 11 January 1915, having made his will on the day preceding his death. He left a daughter surviving him but no son. He also left him surviving his three brothers (who are the appellants) and a stepbrother one Rajendra Mohan Roy. Inasmuch as the questions to be determined upon this appeal are concerned with the proper construction and effect of the will the material portions of it must be set out in full. They are as follows: 2. If no son be born to me of my loins or if such a son dies after birth, my wife Srimati Purnasashi Debi will be permitted, for the purpose of performing the Sradh, funeral rites and for offering water and funeral cakes to my ancestors, to take five sons successively (one on the death of the other) and that adopted son will be the owner of the estate, and will be, on attaining majority, entitled to take the estate from the hands of the executors; and I grant her permission to take son in adoption as aforesaid. Before I gave her oral permission to take son in adoption in that manner. 3. Within ten years after my death my aforesaid wife, in accordance with the provision mentioned in para. 2 will take a son in adoption from amongst the sons of my three full brothers or from amongst those of my step-brother Srijut Rajendra Mohan Boy. If it be impossible to take in adoption a son from amongst the sons of any one of them, then after the expiry of ten years and within the next two years, she will take, at her own choice, a son in adoption from amongst the sons of my other agnatic relatives. In the absence of that or if that is not possible, she will take a son in adoption from one of my own Gotra or from a different Gotra. She will take the first son in adoption within 12 years as aforesaid. If the said son dies sonless, she will be entitled to take a second son in adoption even after the said period of 12 years. My aforesaid wife will be entitled to adopt five sons in succession, one on the death of the other, in the aforesaid manner. 4. My full brothers, mentioned in para. 1, are my well-wishers and faithful objects of my love; and I have been living with them in Ejmali and in the same mess. My two elder brothers have been properly looking after and managing the estate even during my lifetime. Accordingly, I appoint my full brothers Srijut Bhupendra Mohan Roy, Srijut Prithwindra Mohan Roy and Sriman Hiranya Mohan Roy, executors to the estate, after my death till my son or my adopted son or, if they die during their minority, till their sons attain majority. They will together, or in the event of the death, inability or absence of the one, the others will manage and look after the estate. For the welfare or for the necessity of the estate they will be able to settle permanently, or in Putni or in Ijara the whole or any portion of my immovable property. They shall not be able to do any act detrimental to the estate, or to transfer or encumber the same. The executors will perform the religious rites and duties of my ancestors and other festivities, according to their consideration and the custom of my family, the expenses of which will be borne by the estate left by me. They will maintain my mother, wife, daughter and others mentioned in para. 5 and pay their monthly allowance from the estate left by me. The executors and their representatives will be bound to act according to the provisions of the will of my deceased father Sudhendhu Mohan Roy. Nobody will be able at any time to demand or take any accounts of income and expenditure from the executors. 5. My mother Srijukta Harakamini Debi, of whom I was born, will be entitled to maintenance out of my estate according to share, in accordance with my father's will, and a sum not exceeding Rs. 2000 should be spent out of my estate for her Sradh ceremony. My wife, Srimati Purnasashi Debi, will be under the care of my executors and under the care of my son or adopted son when he would attain majority. She will be entitled to maintenance and all expenses for religious rites, pilgrimage, &c., out of the estate according to the circumstances of the estate and directions of the executors. If my aforesaid wife be not on good terms with them, she will be entitled to a monthly maintenance allowance at the rate of Rs. 20 during her life and to a sum of Rs. 1000 at a time out of my estate for the expenses of her pilgrimage, and she will further be entitled to live in a proper house in my residential homestead. My only daughter Srimati Binapani Debi is at present minor and unmarried. All the expenses of her marriage will have to be paid out of my estate in accordance with the custom of my family, and my estate will bear the cost of her maintenance till her marriage. If she lives at her husband's house after her marriage, she will receive Rs. 5 per month during her life out of my estate, and if she lives at my own house she will be entitled to maintenance out of my estate. If she be not on good terms with my heirs or successors-in-interest and if she wants to live in my own village, then my heirs and successors-in-interest should be bound to give her separate lands and houses according to the circumstances of the estate, and she will be entitled to a monthly allowance of Rs. 20 during her lifetime on account of her maintenance out of my estate; and she will be entitled to get proper sum of money out of my estate on the said accounts. If any other daughter is born to me, then she also will be entitled to maintenance, monthly allowance, marriage expenses, homestead and houses, &c. just like the aforesaid Srimati Binapani. 6. My three brothers executors, will together or two of them or one of them will take the probate of this will and will administer and manage the estate left by me till my son or grandson attain majority, being vested with all the responsibilities and power as mentioned in this will and by paying off all the debts. 7. If there be no son born of my loins, or if such a son die sonless after birth, or if per chance, no son be taken in adoption, or if the son taken in adoption die sonless, then the executors or any of them or, in the event of their disagreement the Collector of Dacca will establish at my own native village Rawail, the place of my residence, a school or a charitable dispensary named after me and will spend the whole amount of surplus of my estate for its maintenance. To the above effect, being in full possession of my senses and in tranquil state of mind, I execute today this will, being in Calcutta at 19, Hara Chandra Mallick Lane. Finis. Dated 26 Pous 1321 B. S. As already stated the testator died on 11 January 1915. Ten years then passed without the respondent taking any steps to adopt any one of the sons of the testator's brothers or step-brother. This was in no way due to any difficulty in finding such a son. It seems to have been a deliberate omission on her part. The learned Subordinate Judge has examined the evidence about this in some detail and has summed it up in these words : So there is not only no evidence that the plaintiff even made any genuine endeavour to take any of her husband's brothers' sons in adoption within ten years and failed, but there is evidence in the contrary direction that defendants 1 and 2 (i. e. two of the appellants) offered their sons for adoption to the plaintiff but she did not adopt.

(2.) On 13 August 1926 however the respondent purported to adopt an infant son of one of the appellants. That the adoption took place in fact is not now in dispute. The only question about it is whether it was a valid adoption seeing that it was not made within ten years of the testator's death. On 24 November 1926 the adopted son died sonless. It was in these circumstances that the respondent instituted the present suit on 20 January 1928 claiming that the appellants as executors of her husband's will should put her in possession of the properties to which she was entitled at his death. She also claimed to have an account taken of the income of such properties. Her contention was that the adopted son had become by virtue of the express words in cl. 2 of the will "the owner of the estate," and that upon his death she became entitled to the estate as his heiress. As to cl. 7 of the will which contains a gift over in favour of charitable purposes in the event (amongst others) of the son taken in adoption dying sonless, she contended that the gift over was void on the ground that it was repugnant to the absolute gift to the adopted son contained in cl. 2. This was, of course, on the assumption that the adoption was valid. If that assumption proved to be ill-founded, she claimed to be entitled to the properties as heiress of her husband, alleging that the gift over in the event of no son being taken in adoption was void on the grounds of remoteness and uncertainty. The suit came on for hearing before the Additional Subordinate Judge at Dacca on 17 June, 1932. He held that the adoption was invalid as not having been made within the ten years limited by the will. He thought in view of certain authorities, to which their Lordships will refer later, that the power to adopt given to the respondent was one that had to be strictly followed. He held further that the gift over in cl. 7 in the event which had happened of no son having been taken in adoption was valid in every respect. The result, as already stated, was that the respondent's suit was dismissed with costs.

(3.) The respondent then appealed to the High Court. The appeal was successful. It was held that the adoption was valid. Mitter J. in whose judgment Rau J. concurred, agreed with the Subordinate Judge that under the Bengal School of Hindu Law an authority to adopt given by a husband to his widow must be strictly followed. "No one," he said, "would quarrel with this proposition of law." But he thought that according to the true construction of the testator's will the authority given to the widow to adopt a son of one of his four brothers could be exercised at any time within twelve years from the testator's death. He said :