SETH BIRADH MAL Vs. SETHANI PRABHABHATI KUNWAR

JUDGEMENT

(1.) This pedigree table has reference to a family of the sub-caste "Lodha" at Ajmer. It is possessed of a trading and banking business carried on under the name of Kanwalnain Hamir Singh. The headquarters of the business are in Ajmer but it is carried on in some 16 different places throughout India under various names and in the case of three of the branch businesses it is said that a stranger to the family has an interest. A considerable amount of immovable property is owned by the family : it is not used in the business but the rents and profits are received by the business and are dealt with as income thereof. The business is said to have been established for over a hundred years. There is some dispute about the correct description of the family : they are said to be Oswal Jains but the appellants are concerned to maintain that though they are Oswals by caste they are not Jains and that they are governed by the Mitakshara. On 26 March 1923, Jeet Mal had died childless leaving a widow - now respondent 1 Sethani Prabhabhati Kunwar. She was about 18 years of age. On 30 June 1924, she entered into a deed of adoption whereby she purported to have adopted as a son to her deceased husband a boy of 11 years named Man Mohan Lal whose father, Bhanwarmal, purported by the same deed to have given him in adoption. On the next day (1 July 1924), the appellants and respondent 4 (or their predecessors), filed in the Court of the District Judge of Ajmer-Merwara the suit out of which this appeal arises. They sued the widow, the boy and Bhanwarmal seeking a declaration that the adoption was invalid and an injunction restraining the defendants from giving effect to it : they also sought to restrain the defendants from interfering with the affairs, property and business of the family, alleging that the family was joint, that the widow was entitled only to maintenance and residence, and that she was not entitled as heir of her husband to any share in the family business or property.

(2.) No steps were taken by the plaintiffs to have a guardian ad litem appointed for the boy but his father and the widow filed similar written statements (30 July) admitting the joint status of the family and defending the adoption as valid. In December they sought to amend by pleading that Jeet Mal had died separate in food, worship and estate, but leave to amend was refused (14 March 1925). On 6 November 1925 the widow again applied to amend her defence alleging that her husband had died separate, and repudiating the adoption as having been due to fraud and misrepresentation practised upon her. The District Judge (31st August 1926) allowed her to amend her defence as to the separate status of her husband but refused to permit her to repudiate the adoption. The boy's father, Bhanwarmal, was not allowed to amend his written statement so as to withdraw his admission of Jeet Mal's joint status. In August 1926, it was discovered that no guardian ad litem had been appointed for the boy and Bhanwarmal was appointed. On 22 November, 1929 the learned Additional District Judge gave judgment in the suit. He held that the factum of adoption had not been established as no giving and taking of the boy had been proved to have taken place on 30th June 1924 : accordingly he declared the adoption to be "null and void and cancelled." He dismissed the claim for an injunction to restrain the widow from interfering with the business, reciting in his decree that it is held that as the widow of a separated Jain governed by Hindu law she has the right as such widow to a half of a third share in the tisira or unpartitioned property and assets of the firm of Kanwalnain Hamir Singh to which her deceased husband Jeet Mal was entitled.

(3.) From this decree the widow did not appeal : indeed she had no quarrel with it. But the plaintiffs appealed to the Court of the Judicial Commissioner (Appeal No. 68 of 1930) : likewise the boy and his father Bhanwarmal (Appeal No. 50 of 1930). The appeals were heard together but had a different fate. On 4 May 1931, the learned Judicial Commissioner dismissed the appeal which the plaintiffs had brought against the trial Judge's refusal of an injunction restraining the widow from interfering with the business; but he upheld the adoption and dismissed the suit in toto with costs throughout. Upon this appeal it is admitted by the respondents that the adoption cannot be upheld without proof of a giving and taking of the boy. On the other hand it is conceded for the appellants that on the evidence as to this family no objection can successfully be taken to the adoption on the score of want of authority from the widow's husband, want of consent by his relatives, or because the boy was not a close relation. The sole issue discussed before their Lordships was the question of fact whether on 30 June 1924, at about 6 P. M. when the adoption deed was being registered the boy was present and was given by Bhanwarmal and taken by the widow. On this question the Courts in India have differed but the evidence before the Judicial Commissioner was not the same as before the trial Judge. An important witness to the proceedings at the time of registration of the adoption deed was a barrister Mr. Kishen Saroop: he had been tendered as a witness at the trial but refused by the trial Judge on the ground, as their Lordships are informed, that he was engaged as counsel in the case. The Judicial Commissioner recorded his evidence at the appellate stage under Order 41, R. 27, though he does not seem to have recorded his reasons as required by the Rule. Their Lordships are of opinion that this evidence was rightly received. There may have been good reason why Mr. Kishen Saroop should return his brief and cease to act as counsel in the case but to deprive a party of the evidence of a witness is a very different matter.