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TMI Blog1891 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to it, and upon this point he says: It is urged that as the adoption of plaintiff did not take place with the consent of the executor or manager Krishna Gobind, it is invalid. Plaintiff tried to prove that Krishna Gobind gave secret consent to such adoption, though outwardly he did not give consent as he was most unwilling to incur the displeasure of Raghu with whom he was on friendly terms. The evidence of plaintiff's witnesses, Radha Kant and Ram Parshad, that in Assin 1291 Krishna Gobind advised Santomoni to take protection of Radha Kant and Gopi Mohun and to adopt a son of Radha Kant, cannot be believed, for Radha Kant and Gopi Mohun were then on ill terms with Krishna Gobind, as litigation was then going on between them in the High Court, Then the evidence adduced by the plaintiff that Krishna Gobind's consent was taken before the adoption of plaintiff in Kartick 1292 is also untrustworthy, for it is improbable that Krishna Gobind would give such consent when at that time he applied for revocation of the letters of administration taken out by Santomoni. It rather appears that Santomoni wrote a registered letter (Ex. VI) on 14th Assar 1291 to Krishna Gobind to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nath's widow, Santomoni, is valid . 3. This finding is attacked in the fifth ground of appeal, and we think, as we intimated in the course of the argument yesterday, that the judgment of the Subordinate Judge on this point is correct and should be confirmed. We think that all the testator intended was to suggest that his wife would exercise a sound discretion if in the matter of choosing a boy to be adopted she consulted Krishna Gobind, a man in whom he, the testator, seems to have reposed confidence. Looking at the religious efficacy that ensues from the adoption of a son by a widow to her deceased husband, we think the Court should not be too astute to defeat an adoption, but should rather do its utmost to support it, unless such adoption is clearly in excess or in breach of the power to make it. There was a case referred to by Baboo Mohini Mohun Roy upon this point Rangubai v. Bhagirthibai I.L.R. Bom. 377 but, as pointed out in the course of the argument, the power of adoption there was entirely different from the power of adoption here, and we think that that case is not applicable to the facts of the case with which we are at present dealing. 4. With regard to the 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu Law fourth edition says that some passages in the judgment of Kally Prosunno Ghose v. Gocool Chunder Mitter are more broadly expressed than they would have been if the Court had not misconceived the facts of the Privy Council case of Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo. Then he goes on to say that the decision itself, coupled with the other case cited, seems to lead to the following conclusions, one of which is 'that when an adoption is made to the last male holder, the adopted son will divest the estate of any person whose title would have been inferior to his if he had been adopted prior to the death'. Hence the plaintiff as adopted son of Bissonath is entitled to claim the property of his adoptive father Bissonath . 7. In support of this contention Baboo Mohini Mohun Roy relied upon, first of all, the case of Kalidas Das v. Krishna Chunder Das 2 B.L.R. F.B. 103. That case was tried on the Original Side of this Court by Mr. Justice Norman. The facts were that Deb Chandra Das died in the year 1832, leaving an only son Bireswar Das, who had been blind from his birth, and two widows, the survivor of whom, Pyari Mani, died in 1849. Bireswar, the bli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... widow had no right to anything beyond maintenance. And a reference to the facts of the Madras case would seem to show that Mr. Mayne has pointed out an error which really exists in the judgment of the Court in the case of Kally Prosunno Ghose v. Gocool Chunder Mitter. Then Mr. Mayne goes on to say at page 198, paragraph 179-- But the decision itself, coupled with the other cases cited, seems to lead to the following conclusions: First, where an adoption is made to the last male holder, the adopted son will divest the estate of any person whose title would have been inferior to his, if he had been adopted prior to the death, and Mr. Mayne relies upon the Madras case, Virada Pratapa Raghunada Deo v. Brojokishore Patta Deo I.L.R. Mad. 69: L.R. 3 IndAp 154 as authority for that proposition. 10. Babu Mohini Mohun Roy argues that Mr. Mayne is mistaken in saying that the Privy Council decided any such question in that case; that all that they decided in that case was a pure question of fact: and he contends boldly that an estate once having vested in a male, who is capable of taking an absolute estate, such male is not liable to be divested of that estate except in the case of a subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a son: Held that the estate which was in the elder widow was divested by the adoption, and that the adopted son took all the estate of his adoptive father. The judgment of the Court in that case was delivered by Mr. Justice GURU DAS BANERJEE; and at page 71 of the report, the learned Judge mentions what points were argued in appeal, and says that the fourth point argued was that even if the adoption was valid, it could not divest the estate of the elder widow who was no consenting party to it, and that the plaintiff was not entitled to recover the eight annas share of the estate of Raj Narain which had been inherited by her, and at page 72 of the report, referring to that contention, the learned Judge says: The fourth point does not appear to have been raised in the Courts below. But as it is a point of law not requiring for its disposal any further inquiry into facts, we allowed it to be raised and argued here. The sum and substance of the argument on behalf of the appellant is that an estate vested in any person by inheritance cannot be divested by a subsequent adoption, except when the adoption is made by such person; and that the plaintiff is not, therefore, entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, and to defeat the interests of the younger widow. Then the learned Judge refers to an unreported case decided by this Court, and he goes on to say: The true rule deducible from all these cases is, as stated by Mr. Mayne in his learned work on Hindu Law and Usage (section 179), this, namely, that a son adopted to the last male proprietor, who was the full owner of an estate, is entitled to take the whole of that estate and to divest the interest of any person in that estate whose title by inheritance is inferior to his, and who could not have inherited if the adoption had taken place before the death of the last full owner, though he is not entitled to claim as preferential heir the estate of any other person besides his adoptive father, when such estate has vested before his adoption in some heir other than the widow who adopted him. There is nothing unjust in this Indeed there would be great injustice if the opposite view were to prevail, and if the lawfully adopted son of the last full owner, who is to bear all the obligations of a son, were to be deprived of any part of his adoptive father's estate. The case is wholly different where an adopted son claims not the estate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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