PARIMI SUNDARASIVUDU Vs. BALAJIPALLI ADINARAYANA SASTRI

JUDGEMENT

(1.) This is an appeal from the judgment of the learned District Judge of Rajahmundry dismissing the plaintiffs suit for possession of a house which is item 2 of Sett! A to the plaint. The plaintiffs claimed title to the property through one Surayya who was alleged to be the adopted son of one Subbarayadu. The adoption was said to have been made by the widow of Subbarayadu in pursuance of an authority given to her by her husband by his last will and testament dated 7 July, 1882. Both the factum and the validity of the adoption were denied in the lower Court, but during the trial the factum was not seriously disputed, but only the validity of the adoption was put in issue. The learned Judge came to the conclusion that the adoption was invalid on the ground that it did not conform to the authority given by the husband. The substantial question for decision in this appeal is whether the view taken by the learned Judge is sound and this turns on the construction of the said authority.

(2.) It is contained in one sentence which runs thus: My wife shall adopt a suitable boy from our family or a boy belonging to the same gotra as myself.

(3.) The said Surayya was no other than the brother of the widow of Subbarayadu and it is conceded that he did not belong to the family of Subbarayadu nor had the same gotra as Subbarayadu. As observed by the Privy Council in Rajendra Prasad Bose V/s. Gopal Prasad Sen (1930) 59 M.L.J. 615 : L.R. 57 I.A. 296 : I.L.R. 10 Pat. 87, (P.C.) it is well-established law that the power to adopt given to a wife must be strictly pursued. There is no doubt that the power in this case has not been strictly pursued, but it is contended by Mr. Somasundaram that, from the fact of Subbarayadu having given a power to adopt, it must be inferred that there was a general intention oh the part of Subbarayadu to be represented by an adopted son, that the direction given to his wife to adopt a boy from the family or a boy belonging to the same gotra as the testator was only indicative of a preference, and that if it was not possible for the widow to comply with the said direction, it would be open to her to adopt any other suitable boy of her own choice. It seems to us that this contention is untenable. It may be open to a Court to infer a general intention to adopt and construe that general intention rather liberally where there are no special instructions given by the husband or, possibly in cases where such instructions were carried out and an adoption made in accordance therewith but the adopted boy died and another adoption was made. In Suryanarayana V/s. Venkataramana (1906) 16 M.L.J. 276 : L.R. 33 I.A. 145 : I.L.R. 29 Mad. 382 at 388 (P.C.), the Judicial Committee observe thus: Their Lordships agree with the learned Judges of the High Court in the opinion that the main facts for consideration in these cases is the intention of the husband. Any special instructions which he may give for the guidance of his widow must be strictly followed; where no such instructions have been given, but a general intention has been expressed to be represented by a son, their Lordships are of opinion that effect should, if possible, be given to that intention. This more liberal rule has been followed by the High Court of Bombay, as well as in Madras, and is not without support in Bengal.