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Puttu Lal And Others v. Mt. Parbati Kunwar And Another
Summary of Opinion delivered by Sir John Edge
Factual and Procedural Background
This appeal arises from a suit originally instituted on 15 June 1907 in the Court of the Subordinate Judge of Mainpuri. The plaintiffs sought a declaration that Jwala Prasad was not the adopted son of the late Tiwari Gandharp Singh. The adoption in dispute was made in March 1899 by Musammat Parbati Kunwar (the widow of Tiwari Gandharp Singh) in respect of Jwala Prasad, who was the son of the wife's brother. Tiwari Gandharp Singh had died on 9 November 1898 without surviving issue and was a Brahman. The plaintiffs, who described themselves as reversioners, alleged (a) that the adoption had not in fact occurred, (b) that Gandharp Singh had not given authority to his wife to adopt, and (c) that Jwala Prasad was legally ineligible for adoption because he was the son of the adoptive mother's brother.
The Subordinate Judge framed six issues; two were central on appeal: (4) whether Gandharp Singh gave permission to his wife to adopt Jwala Prasad, and (6) whether the adoption was invalid because the boy was the son of the adoptive mother's brother. The courts below concurred that the adoption was in fact made. The Subordinate Judge found the evidence of authority to adopt untrustworthy and held that no authority had been proved. On appeal, the High Court (Allahabad) disagreed and found that the husband had given specific authority to his wife to adopt Jwala Prasad as his son, and the High Court dismissed the suit with costs. The present opinion reviews that disposition and advises that the appeal be dismissed.
Legal Issues Presented
- Did Tiwari Gandharp Singh give permission to his wife, Musammat Parbati Kunwar, to adopt Jwala Prasad as a son to him?
- Is the adoption invalid under Hindu law by reason of the fact that the adopted boy was the son of the adoptive mother's brother (i.e., was he ineligible)?
Arguments of the Parties
Plaintiffs' Arguments
- The adoption should be declared invalid or not to have occurred.
- There was no authority given by Tiwari Gandharp Singh to his wife to adopt Jwala Prasad on his behalf.
- Jwala Prasad was ineligible for adoption because he was the son of the adoptive mother's brother (a relationship which, the plaintiffs contended, precluded valid adoption).
Respondents' / Defendants' Position (as reflected in the opinion)
- The adoption in fact occurred and was made by Musammat Parbati Kunwar in March 1899.
- There was specific authority from Tiwari Gandharp Singh (by an oral will or oral permission shortly before his death) enabling his wife to adopt Jwala Prasad as his son.
- The adoption was valid under Hindu law because it was an adoption to the deceased husband (under his authority), and the eligibility of the adopted son should be judged by the test that would have applied had the husband himself adopted the boy during his lifetime.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jai Singh Pal Singh v. Bijai Pal Singh (1904) 27 All. 417 (1905 A.W.N. 20; 2 A.L.J. 36) | The decision that an adoption by a Hindu widow, by virtue of authority given by her deceased husband, of her brother's grandson or son is not invalid; the relevant test is that which would have applied had the husband himself adopted in his lifetime. | The court treated this High Court decision as binding on the Subordinate Judge and followed it: adoptability of a brother's son to the deceased husband is valid where authority was given. The Board agreed the Subordinate Judge ought to have followed this authority. |
| Radha Mohun v. Hardar Bibi (1899) 21 All. 460 (26 I.A. 113; 9 M.L.J. 67; 22 Mad. 398; 1 Bom. L.R. 226; 7 Sar. 333; 3 C.W.N. 427 (P.C.)) | Consideration of the authority and role of Nanda Pandita's "Dattaka Mimansa" in Hindu adoption law; caution in accepting its glosses where they deviate from the Smritis. | The Board referenced this decision to justify treating Dattaka Mimansa as important but not authoritative where it departs from Smritis; used to temper reliance on Nanda Pandita's extension. |
| Bhagwan Singh v. Bhagwan Singh (1899) 21 All. 412 (26 I.A. 153; 1 Bom. L.R. 311; 3 C.W.N. 454 (P.C.)) | Also considered the authority of the "Dattaka Mimansa" and cautioned against accepting its glosses when they add to or deviate from the Smritis. | Referred to for the same proposition as Radha Mohun: the Dattaka Mimansa is highly regarded but must be treated cautiously when it extends rules beyond the Smritis. |
| Musammat Battas Kuar v. Lachman Singh (1875) 7 N.W.P. H.C.R. 117 | An expression by Pearson and Spankie JJ. indicating no sufficient reason shown to reject Nanda Pandita's doctrine that a woman may not affiliate a brother's son, and that this doctrine might apply when a woman adopts on behalf of her husband. | The Board noted the statement but observed it was not necessary to rely upon it here and that the case did not clearly establish that Nanda Pandita's extension had become the law applicable to widows adopting to deceased husbands. |
| Sriramulu v. Rammayya (1881) 3 Mad. 15 | Held that the adoption of a son of a wife's brother was valid and explained that the rule requiring that a legal marriage must have been possible between adopter and mother refers to their relationship prior to marriage. | The Board cited this case as authority supporting validity of adoption of a wife's brother's son, and to support the proposition that eligibility is judged by pre-marriage relations. |
| Bai Nani v. Chunilal (1898) 22 Bom. 973 | Held that the adoption by a Hindu widow of her brother's son was valid. | Used as an additional precedent supporting the conclusion that such adoptions can be valid. |
Court's Reasoning and Analysis
The court's analysis proceeded in two linked parts: (A) the factual question whether the husband had given authority for the adoption; and (B) the legal question whether a widow, acting under her deceased husband's authority, could validly adopt as his son a boy who was the son of her brother.
(A) Factual finding as to authority to adopt
- The High Court found the witnesses who testified to the husband's oral permission credible and trustworthy. Their Lordships agreed with that assessment and held that the direct evidence of authority was clear and unassailable.
- The Board enumerated surrounding facts which made the grant of authority probable: Gandharp Singh was elderly, had been married three times, left no surviving issue, there was no sagotra sapinda in his family, he was the last male of his line, he possessed estate and position, and he had previously taken Jwala Prasad as a child into his household with the object of adopting him if found worthy.
- On these combined considerations the Board agreed with the High Court's conclusion that specific authority had been given to adopt Jwala Prasad as the husband’s son. The authority was held to be specific to Jwala Prasad and not a general authority to adopt any son.
(B) Legal question of eligibility under Hindu law
- The Board explained the Subordinate Judge was bound to follow existing decisions of the High Court of Allahabad (unless overruled by a Full Bench or on appeal to His Majesty in Council, or altered by statute). A prior Bench of the Allahabad High Court (Jai Singh Pal Singh v. Bijai Pal Singh) had held that a widow, acting under authority from her deceased husband, could validly adopt the son of her brother as a son to her husband; the eligibility test is that which would have applied had the husband adopted during his life.
- The Subordinate Judge had disregarded that High Court authority and relied on Nanda Pandita's "Dattaka Mimansa" which, he concluded, extended the rule that one may not adopt the son of a woman whom one could not legally marry, and thereby rendered the adoption invalid. The Board criticized that approach: it noted that the Dattaka Mimansa's extension is not supported by Smriti texts and should not be followed where it departs from Smritis; prior Privy Council authority cautions against accepting such extensions uncritically.
- The Board reasoned there was no logical basis for making a boy who would have been eligible had the husband adopted him during his lifetime ineligible simply because the husband died and the widow acted under his authority. The adoption in this case was to the deceased husband and under his specific authority, so the test of eligibility must be the same as if the husband himself had adopted the boy in his life.
- The Board referred to other decisions (Sriramulu v. Rammayya; Bai Nani v. Chunilal) which supported the validity of an adoption of a wife's brother's son in circumstances comparable to those before the court.
On the combined factual finding that authority had been specifically given, and the legal conclusion that such an adoption was valid under the applicable precedents and principles, the Board concluded that the Subordinate Judge's contrary legal conclusion was incorrect and that the High Court's decision should stand.
Holding and Implications
Holding: Their Lordships advised that the appeal be dismissed. The appellants (the plaintiffs) must pay the costs of the appeal. The opinion concludes: "Appeal dismissed."
Implications:
- Direct effect on the parties: The High Court's decree (which found that the husband had given authority and that the adoption was valid) is affirmed by this opinion; the suit seeking to set aside the adoption is dismissed and the appellants are ordered to pay costs of the appeal.
- On legal precedent: The Board followed the existing decision of the Allahabad High Court (Jai Singh Pal Singh v. Bijai Pal Singh) and reiterated the principle that where a widow adopts under authority given by her deceased husband, eligibility of the adopted son is to be judged by the test applicable had the husband adopted during his lifetime. The opinion cautions against extending reliance on Nanda Pandita's glosses where they conflict with Smritis, but it does not purport to lay down a new rule of general application beyond affirming and applying existing authorities.
This summary is restricted to the content and reasoning expressly set out in the provided opinion and does not add facts or inferences beyond that text.
Sir John Edge :
This is an appeal by the plaintiffs from a decree of the High Court of Judicature at Allahabad, dated the 15th of December, 1909, which reversed a decree of the Subordinate Judge of Mainpuri, and dismissed the suit with costs.
The plaintiffs brought their suit in the Court of the Subordinate Judge of Mainpuri on the 15th June, 1907, to have it declared that Jwala Prasad, who is a defendant and one of the respondents, was not the adopted son of one Tiwari Gandharp Singh, deceased, who had been the husband of Musammat Parbati Kunwar, who is the other defendant and respondent. The adoption which is impugned was made by Musammat Parbati Kunwar in March, 1899, to her deceased husband, Tiwari Gandharp Singh, who had died on the 9th November, 1898, without issue surviving him, and had been a Brahman. Jwala Prasad was the son of a brother of Musammat Parbati Kunwar. The plaintiffs, who claimed as reversioners, denied that Jwala Prasad had been in fact adopted and alleged that Tiwari Gandharp Singh had not given to Musammat Parbati Kunwar authority to adopt Jwala Prasad to him, and further alleged that Jwala Prasad, being a son of a brother of Musammat Parbati Kunwar, was in law ineligible for adoption by her as a son to her deceased husband.
The Subordinate Judge framed six issues; two only of the issues are now of importance. It was concurrently found by the courts below that the adoption was in fact made. The two issues which have to be decided in this appeal are as framed by the Subordinate Judge :-
"(4) Did Gandharp Singh give permission to his wife to adopt Jwala Parshad?"
"(6) Is the adoption invalid, inasmuch as the boy is the son of the adoptive mother's brother?"
The authority to adopt Jwala Parshad was alleged to have been given to Musammat Parbati Kunwar by an oral will of her husband, Tiwari Gandharp Singh, a few days before his death. The Subordinate Judge held that the evidence that the authority to adopt Jwala Parshad had been given was untrustworthy, and found that no authority to adopt Jwala Parshad was proved to have been given.
The High Court on appeal saw no reason whatever for doubting the trustworthiness of the evidence of the witnesses who had deposed to the fact that Tiwari Gandharp Singh had given permission to his wife to adopt Jwala Parshad as a son to him, and after a careful consideration of the evidence and the surrounding circumstances found as a fact that the permission to adopt Jwala Parshad had been given. In their Lordships' opinion the learned Judges of the High Court could have come to no other conclusion unless they had perversely disregarded the evidence and all the probabilities of the case. The direct evidence that the authority to adopt Jwala Parshad had been given by Tiwari Gandharp Singh to his wife was clear, and in their Lordships' opinion was unassailable, and other facts showed that it was probable that such an authority would be given. Tiwari Gandharp Singh was a man well advanced in years; he had been thrice married; he had no surviving issue; there was no sagotra sapinda in his family; he was the last male of the male line; he was a man of some considerable estate and position; and he had taken Jwala Parshad, when a child of 4 or 5 years of age, to live in his house with the object of adopting him as his son, should Jwala Parshad prove himself to be a boy worthy of adoption as his son. Their Lordships agree with the finding of the High Court that the authority to adopt Jwala Parshad had been given. That authority was not a general authority to Musammat Parbati Kunwat to adopt a son to Tiwari Gandharp Singh, it was a specific authority to her to adopt Jwala Parshad as the son to her husband.
There remains to be considered the question of law raised by the sixth issue which had been framed by the Subordinate Judge. The court of the Subordinate Judge of Mainpuri is a court which is subordinate to the High Court at Allahabad, and the Subordinate Judge of Mainpuri is bound to follow the decision in law of a Bench of the High Court to which he is subordinate unless the decision of the Bench has been overruled by a decision of a Full Bench of that Court or unless it has been overruled expressly or impliedly on an appeal to His Majesty in Council, or unless the law has been altered by a subsequent Act of the legislature. As the Subordinate Judge was well aware it had been decided five years before this suit was instituted, by a Bench of the High Court at Allahabad, composed of Sir John Stanley, the then Chief Justice, and Mr. Justice Banerji, in Jai Singh Pal Singh v. Bijai Pal Singh (1904) 27 All. 417 = 1905 A.W.N. 20 = 2 A.L.J. 36, that an adoption by a Hindu widow, in virtue of an authority to adopt given to her by her deceased husband, of her brother's grandson or son is not, according to Hindu Law an invalid adoption, as the adoption by the widow is not an adoption to herself but is an adoption to her deceased husband, and that the test of eligibility of the adopted son for adoption in such case must be the test which would have applied had the adoption been made by the husband himself in his life-time.
The Subordinate Judge of Mainpuri, Chhajju Mal, professing disapproval of that decision of the High Court, which he was bound to follow, entered upon a consideration of Sanskrit texts bearing more or less upon the subject, and decided that as Musammat Parbati Kunwar could not have married her brother, the father of Jwala Parshad, the adoption of Jwala Parshad was invalid. It is difficult to follow the arguments of the Subordinate Judge, but he does not appear to have kept clearly before his mind, that the question in this case was whether a Hindu widow acting on her husband's authority, could validly adopt as a son to him the son of her brother, and was not the question as to whether a Hindu female could validly adopt to herself a son of her brother. On appeal, Sir John Stanley, C.J., and Banerji, J., applied the decision in Jai Singh Pal Singh v. Bijai Pal Singh (1) which had not been overruled, and accordingly decided that the adoption of Jwala Parshad was a valid adoption, and by their decree dismissed the suit with costs. From that decree of the High Court this appeal has been brought.
The foundation of the decision of the Subordinate Judge on this question of Hindu Law is the Commentary of Nanda Pandita which is known as the "Dattaka Mimansa." The "Dattaka Mimansa" is undoubtedly a high authority on the law of Hindu adoption and is treated with respect. The authority of the "Dattaka Mimansa" was considered by this Board in Radha Mohun v. Hardar Bibi (1899) 21 All. 460 = 26 I.A. 113 = 9 M.L.J. 67 = 22 Mad. 398 = 1 Bom. L.R. 226 = 7 Sar. 333 = 3 C.W.N 427 (P.C.). and in Bhagwan Singh v. Bhagwan Singh (1899) 21 All. 412 = 26 I.A. 153 = 1 Bom. L.R. 311 = 3 C.W.N. 454 (P.C.). and the view of this Board was that the "Dattaka Mimansa" is a work which has had a high place in the estimation of Hindu lawyers in all parts of India and has become embedded in Hindu Law, but the caution is required in accepting the glosses of Nanda Pandita in the "Dattaka Mimansa" where they deviate from, or add to the Smritis. It was pointed out by Banerji, J., in Jaisingh Pal Singh v. Bijai Pal Singh (1), on this question, as to whether a widow can lawfully adopt to her deceased husband a son of her own brother, that Nanda Pandit in the "Dattaka Mimansa" extended to adoption by females the rule of Hindu Law that no one can be adopted as a son whose mother the adopter could not have legally married, an extension by Nanda Pandita which is not based upon the authority of any of the Smritis or institutes of sages.
As Banerji, J., further pointed out in the same case the extension of the rule by Nanda Pandita is not supported by any text of the "Dattaka Chandrika" or by any of the texts of the sages Saunaka and Sakala from which most of the rules of the "Dattaka Mimansa" were deduced. It has not been shown to their Lordships that the extension by Nanda Pandita to which they are referring has been accepted as the law in India, at least so far as adoption by widows to their deceased husbands are concerned. It is true that in the case of Musammat Battas Kuar v. Lachman Singh (1875) 7 N.W.P. H.C.R. 117, Pearson and Spankie, JJ., said :-
"No sufficient reason is shown why the doctrine of Nanda Pandita that a woman may not affiliate a brother's son should not be accepted as correct, and why it should not apply to the case of a woman adopting a son with the sanction and on behalf of her husband. Indeed, it does not appear that the Hindu Law contemplates or provides for the adoption by a widow of a son in her own right."
It was not necessary for these learned Judges to express any opinion on the subject, nor is it clear how the case came on appeal to the High Court, as the two Courts below had concurrently found that it was not proved that the husband had given his wife authority to adopt a son. It is quite clear that Tiwari Gandharp Singh could, in his life-time, have legally adopted Jwala Parshad, the son of his wife's brother, and had he done so the adoption would have been a valid adoption, and their Lordships fail to see any reason why Jwala Parshad, who was legally eligible for adoption by Gandharp Singh, should have become ineligible by reason of the death of Gandharp Singh. It must be remembered that the adoption was not by the widow in her own right and to herself; the adoption was to her deceased husband and under the authority which he had given to her. In Sriramulu v. Rammayya (1881) 3 Mad. 15, the adoption of a son of a wife's brother was held to be a valid adoption, and it was rightly pointed out that the rule of Hindu Law that a legal marriage must have been possible between the adopter and the mother of the adopted boy refers to their relationship prior to marriage. In Bai Nani v. Chunilal (1898) 22 Bom. 973, it was held that the adoption by a Hindu widow of her brother's son was valid. Their Lordships have not thought it necessary to discuss the texts and authorities which have been referred to, and are relevant to this question, as they have been fully and exhaustively considered by Sir John Stanley, C.J., and Banerji, J., in their judgments in Jai Singh Pal Singh v. Bijai Pal Singh (1).
This appeal fails, and their Lordships will humbly advise His Majesty that it should be dismissed. The appellants must pay the costs of the appeal.
Appeal dismissed.
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