INDROMONI CHOWDHRANI Vs. BEHARI LAL MULLICK

JUDGEMENT

(1.) THIS suit was brought by the Plaintiff, the widow of one Gopal Lall Mullich, to recover possession of property which formerly belonged to his nephew, Gocool Chunder, who died in November, 1841. Her case is that upon Gocool Chunder's death the property claimed descended to his widow Brojosoondari, by whom, it was enjoyed during her life; that on her death, on the 3rd of April, 1868, it devolved on Gopal Lall Mullick as the nearest collateral heir of Gocool; and that Gopal Lall Mullich, who died on the 7th of October, 1868, devised (for it is under a testamentary gift that she claims) all his interest in it to her. She treated Behari Lal as the principal Defendant, and alleged that he was fraudulently holding the property under the false pretence that Brojosoondari had adopted his brother Haran Krishna, and that he is the guardian of her adopted son. The Defendants insisted upon the adoption as valid, and the question was thus reduced to one of title between the Plaintiff and Haran Krishna. In this state of things the principal questions which arise on the record are whether the will upon which the title of the Plaintiff depends was executed by her husband; and if so, whether her title was defeated by a valid adoption? This question of adoption of course involves the two issues, whether Brojosoondari had authority to adopt, and whether she had in fact exercised that authority by adopting Haran Krishna. To these issues of fact has been superadded one of law, namely, whether, supposing the adoption to have been made in fact but without certain ceremonies, those ceremonies were so essential to such an adoption that the omission to perform them invalidated that which would otherwise have been a good adoption. The lower Court found in favour of the Plaintiff that the will had been executed; it found also that the authority to adopt, which it was said Brojosoondari had exercised, had been given to her by her husband; but it also found that no adoption in fact by her in exercise of that power had been established, and that if it had been established it would have been invalid for want of the necessary ceremonies. The High Court abstained from dealing with the issue as to the will, obviously because if the adoption were a good adoption it would prevent any interest in the property from passing to Gopal Lall Mullich, and lie therefore could have had none to dispose of in favour of the Plaintiff. And taking up in the first instance the issues as to the adoption, it found that the widow had authority to adopt; that she had duly exercised that authority; and having first referred to a Full Bench the question whether ceremonies were necessary and essential to an adoption in the case of Sudras, and having received from that body a certificate that they were not essential, it adopted that finding, and so disposed of the question of law. The result was a decree dismissing the Plaintiff's suit; and the present appeal is against that decree.

(2.) BEFORE considering the question of adoption, it may be well to refer a little more particularly to some of the antecedent facts of the case, Gocool Chunder, as has already been said, died in November, 1841. He left him surviving, not only his widow, but Gobind Lall Mullick, his father. The estate in question had descended to him and a deceased brother Brojendro Chunder Mullick from their maternal grandfather, either directly or through their mother Rashmoui Dossee, it does not appear very clearly which. Brojendro Chunder Mullick died without children, and unmarried, and his eight annas share passed by law to his father. For several years the father-in-law and the widow appear to have gone on harmoniously. She was probably very young, her husband having died young, and the father-in-law naturally administered the whole estate. Then quarrels began between them, and Gobind hall seems to have conceived the notion of defeating the widow's estate altogether by setting up a case that his son Gocool Chunder had in his lifetime adopted a cousin Doyodronath by name, who was one of the grandsons of Gopal Lall Mullick. Litigation ensued, and in the course of that litigation the widow appears to have pleaded a written authority to adopt. The case was tried before a Principal Sudder Ameen, who decided against her authority to adopt, but also decided against the case of adoption by her husband which was set up by Gobind Lall Mullick. The result of this decision, if it had stood, would have been to confirm Brojosoondari in her widow's estate, but with a negation of the genuineness of the written anumati patro which she had set up. On appeal the Sudder Court took the somewhat singular course of saying that inasmuch as the property was situated in different zillahs, and their previous leave to bring the suit in the zillah in which it was brought had not been obtained, the whole proceedings were coram non judice and must begin again. In that state of things Gobind Lall Mullick, the father-in-law, died in the month of March, 1858. Shortly after his death the solehnamah, or instrument of compromise, on which so much turns in this case, was executed between Gopal Lall Mullick and the widow. It contains clear admissions on the part of Gopal Lall that the case set up by his brother Gobind Lall as to the adoption of Doyodronath was a false case, and that the widow had an authority from her husband to adopt five sons in succession. It further contains the following provision: "And you shall take as your adopted son, in the manner prescribed by the Shastras, the son born of the womb of the wife of Anund Mohun Mullick, your sister's husband; that is to say, the son born of the womb of your uterine sister; but if for any cause you cannot adopt that son, you shall, by adopting successively the sons of any other person or persons of the same caste with yourself, maintain in accordance with your husband's permission the line of persons by whom offerings of water and the funeral cake are to be made to yourself and your husband, and to the pitriloka (ancestors) of both of you." This solehnamah also contained a confirmation of the gifts which Gobind Lall was said to have made out of the eight annas share which he inherited from his son Brojendro Mullick, viz., two gifts of four annas, and of one anna to Gopal hall Mullick, and a gift of the remaining three annas to Brojosoondari herself; and farther, an agreement between the parties thenceforth to hold the estate in the proportions of eleven annas and five annas.

(3.) THE story of the adoption, as told by the Defendant's witnesses, is as follows: Brojosoondari, who had previously adopted one Romesh Chowdry, and after his death had taken some steps to procure in adoption a son of one Mozoomdar, an adoption which it is clear on the evidence was never perfected, determined to adopt Haran Krishna, the second son of Anund Mohun Mullick, being a person answering to the description in the solehnamah of the child - to be taken in adoption. The child was formally given and received in adoption at Brojosoondari's house at Neemteeta in zillah Moorshedabad on the 20th of December, 1867, corresponding with the 6th of Pous., B. 1274; but no religious ceremonies were performed on that occasion. A few days afterwards she went to a place called Ashtamoonissa in zillah Pubna, which was the home of her father, and took up her abode with Gourang Chunder Roy, her nephew or cousin, taking with her Harem Krishna, the adopted son. Three months afterwards, in the month of Cheyt, she caused the putreshti jag ceremonies, including the datta homam or burnt sacrifice, to be celebrated under her auspices in the house of this Gourang Chunder Roy; and on that occasion executed a wasiutnamah in favour of Behari Loll, authorizing him to act as guardian of, and manager of the estate for, the adopted son during his minority. On the following day, the 31st of March, 1868, she further recognised the adoption by executing a penvannah to the ryots, declaring that she had adopted this child and that they were to pay their rent to Behari hall on his account. She died at Ashtamoonissa a few days afterwards, on the 3rd of April, 1868, and at her obsequies, which took place there, Haran Krishna took the part which it is usual and proper for a son of the deceased to take. After the return of the Defendants to Neemteeta there was a dispute as to the fact of the adoption, and Gopal Lall Mullick and his faction appear to have got possession, temporarily at least, of the house of Brojosoondari at Neemteeta. It is pretty clearly established that Gopal Lall Mullick performed or affected to perform the sradh, which is customarily performed thirty days after the death of the deceased, at her house, whilst Haran Krishna, as her adopted son, was performing a rival sradh in the house of his natural father. But although Gopal Lall Mullick may have got temporary possession of the house, there is nothing to shew that he ever got possession of the property. There is in the Record some evidence of a threatened or apprehended disturbance, and of some persons having been bound over to keep the peace, but there is nothing to shew how Haran Krishna got into possession, as he unquestionably did get into possession, or that Gopal Lall Mullick ever took any legal proceedings to disturb or question that possession. That is the general effect of the evidence in favour of the adoption.