1891 (2) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the adoption by Santomoni.
2. Consent of Krishna Gobind for the adoption.
3. Validity of the anumati-pattro.
4. Divestment of property by subsequent adoption.

Detailed Analysis:

1. Validity of the Adoption by Santomoni:
The Subordinate Judge found abundant evidence that Santomoni, the widow of Bissonath Das Mahapatra, adopted the minor plaintiff as her son according to the directions in her husband's will dated 3rd Falgoon 1290. The adoption was performed with religious ceremonies as provided in the Shastras on 8th Kartick 1292 (22nd October 1884). This finding was appealed against but was admitted at the bar that it could not be successfully attacked, thus it stands confirmed.

2. Consent of Krishna Gobind for the Adoption:
The Subordinate Judge discussed the validity of the adoption assuming Krishna Gobind did not advise or consent to it. The plaintiff's witnesses claimed Krishna Gobind gave secret consent, but this was not believed due to existing litigation and ill terms between the parties. Evidence showed that Krishna Gobind refused to consent to the adoption. The will of Bissonath directed that any illegal act or alienation without Krishna Gobind's consent would be void, but no penalty was provided for adoption without his consent. The primary desire of the testator was for his widow to adopt, which she did. Therefore, the adoption was deemed valid despite the lack of consent from Krishna Gobind.

3. Validity of the Anumati-Patro:
The Subordinate Judge found the anumati-pattro invalid, stating that the clause for deb-sheba in the agreement of dedication was too general and could not be given effect. This finding was attacked but not pressed in the grounds of appeal. It was argued that it was a family arrangement that should not be disturbed without proper notice, but no authority was cited to support this contention, and the court did not give it effect.

4. Divestment of Property by Subsequent Adoption:
The Subordinate Judge found that the family was governed by the Mitakshara law. It was contended that Raghunath, who succeeded by right of survivorship to Bissonath's share, could not be divested by the plaintiff's subsequent adoption. The Subordinate Judge referred to the Privy Council ruling in Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo, which was misunderstood in some cases, and concluded that the subsequent adoption could divest Raghunath of Bissonath's estate. The court supported this view, stating that an adopted son to the last male holder could divest the estate of any person whose title would have been inferior if the adoption had occurred before the death. The court rejected the argument that an estate once vested in a male could not be divested, emphasizing no real distinction between divesting a male or female estate. The appeal was dismissed with costs, supporting the Subordinate Judge's findings.

Conclusion:
The judgment confirmed the validity of the adoption by Santomoni despite the lack of consent from Krishna Gobind, invalidated the anumati-pattro, and upheld the principle that a subsequent adoption could divest an estate vested in another heir. The appeal was dismissed, affirming the Subordinate Judge's decisions on all contested issues.