Haran Chunder Banerji v. Hurro Mohun Chuckerbutty

The appellants instituted this suit to recover from the defendant, who claims to be the adopted son of the late Nobo Krishna Banerji, the whole of the estate of the latter, they being in default of direct heirs entitled, by Hindu law, to succeed to it. They seek to have the adoption set aside, as also a will which was executed by Nobo Krishna. They contend that the adoption of the defendant Kedarnath was invalid, because at the time of its taking place Nobo Krishna already had an adopted son named Bissessur still living, and could not lawfully adopt another, Bissessur having died subsequently to Nobo Krishna, plaintiff's claim to be the next heirs to the estate.

Nobo Krishna, it appears, adopted three sons successively. The first, Ram Tarun was married, and died leaving his widow Makhuda Debi. Nobo Krishna next adopted Bissessur who was the grandson of his cousin Ram Joy Banerji.

Subsequently a question was raised as to the legality or validity of this adoption, on the ground that a brother's or cousin's grandson could not be adopted. Nobo Krishna, having had doubts suggested to him as to the validity of this adoption, proceeded to adopt Kedarnath the defendant in this suit; and further he made a will in which he described both the boys as his sons, and made provision for each of them. He made three divisions of his property; one division he gave for the maintenance of the two sons. As regards Bissessur a condition was attached, that should he not, after coming of age, reside in the dwelling house of the testator, he should not get property

The second division was dedicated to family idols, Makhuds Debi, the widowed daughter-in-law, being appointed sebait with the option of appointing one or other of the two adopted sons to succeed her in that capacity. The third division was to be dispensed by the executrix of the will, Makhuda Debi, for various religious ceremonies. Bissessur died during his minority. Makhuda Debi is also dead, and did not appoint Kedarnath to be sebait of the debuttur property.

For the defence it was contended that the adoption of Bissessur was invalid for the reason above mentioned, viz., that as grandson of a cousin he was not eligible for adoption; and that, consequently, the defendant Kedarnath's adoption was good, and he is entitled, independently of the will, to inherit the estate of Nobo Krishna, and it was contended, that independently of the adoption, he is entitled under the will to hold the whole estate, and that the plaintiffs get nothing as heirs of Bissessur. The case came on for trial before the Subordinate Judge of the 24 Pergunnahs. The material issues on the merits were, whether the will of Nobo Krishna, of which probate has been granted, could be questioned in this suit; whether the ceremonies enjoined by the Shastras had been duly performed at the defendant's adoption; whether the adoption of Bissessur was valid or not; and whether if defendant's adoption be invalid, he is entitled under the will to retain the property. The Subordinate Judge disposed shortly of all the issues except that which raises the question of the validity of the adoption of Bissessur. If that adoption was valid, the defendant Kedarnath was not a legally adopted son. If Bissessur was not legally adopted, then Kedarnath's title cannot be assailed: for, that all the proper forms and ceremonies were observed in regard to him was found by the lower Court, and has not been denied before us, though a denial of it was set out in the memorandum of appeal. The lower Court discussed, at great length, the issue touching the validity of Bissessur's adoption, and came to the conclusion that it was invalid. It considered that upon the correct interpretation of certain passages in the “Dattaka Chandrika” and “Dattaka Mimanasa,” it must be held that a boy cannot be adopted by ??? unless he be of the same generation as the intending ??? son would be. The Subordinate Judge relied much upon what he conceives to be the true meaning of the somewhat vague phrase “the boy bearing the reflexion of a son,” which occurs in one of the verses in which the ceremonial rites of adoption are prescribed, as showing that an adopted son cannot be chosen from a generation more than one degree below the adopter. He observes that a grand-nephew bears the reflexion of a grandson rather than that of a son.

In coming to the conclusion, which he did upon this point, the Subordinate, Judge has been chiefly guided by considerations as to whether there could be an appointment (in the technical sense of Hindu law) as between the person wishing to adopt, and the mother of the boy to be adopted. This he considers to be the only test, because the meaning of the phrase “reflexion of a son” is explained by the commentators to be “the capability to have been begotten by the adopter through appointment and so forth—” Vide “Dattaka Chandrika,” section II, paras, 7 and 8, and “Dattaka Mimansa.” section V, paras, 15, &c.

The generally accepted rule deduced from this explanation is, that the adopted son's natural mother must be one with whom the adoptive father might have lawfully inter-married while she was yet unmarried—Vide Sutherland's Synopsis; and “Dattaks Mimansa,” section V, para. 20; and this rule has been thought to receive support from the prohibition contained in the books from adopting a daughter's son, a sister's son, and the son of the mother's sister—Vide “Dattaka Chandrika,” section I, pars. 11. There are no doubt exceptions to this rule expressly provided in the prohibition to adopt paternal and maternal uncles. For the “uncle” may be the step uncle, and therefore the son of one who might lawfully have been married to the man desiring to adopt. But because of these exceptions, the Subordinate Judge rejects the generally-accepted rule which has been judicially affirmed by the High Courts of Madras and Bombay in several reported cases, and for the rejection of which no authority exists in any case decided by this Court, or by the Judicial Committee of the Privy Council—Vide Chinna Nagayya v. Pedda Nagayya, I.L.R, 1 Madras, 62; Jivayi Bhai v. Jivu Bhai, 2 Mad. H.C 462; Gopal Narhar Safray v. Hanmant Ganesh Safray, I.L.R 3 Bombay, 273.

The Subordinate Judge did not overlook the fact that, in deciding that a brother's or cousin's grandsou could not legally be adopted, he was acting in direct opposition to a decision of three former Judges of this Court in the case of Morun Moee Debeah v. Bejoy Kishto Gossamee, W.R Sp. No. p. 122. He considered himself not bound to follow this decision, because independently of that question that case was disposed of upon another point, which rendered it unnecessary to determine whether the adoption was valid or not, and also because, as he notes, the case was not a Full Bench case, properly so celled. Whether necessarily or not, however the question was decided, and the three Judges were unanimous in their opinion. We cannot doubt that they came to that opinion after careful deliberation; for the point was one upon which the two Courts below had differed, and upon which the opinions of the Pundits, accepted as correct by the First Court, were not in accordance with the view adopted in this Court.

The decision therefore, even if it has no more legal force than an expression of opinion, is entitled to very great weight, more specially as one of the Judges was Mr. Justice Sumbhoo Nath Pundit. We think that the Subordinate Judge would have done well to follow this opinion, and the general course of decisions as to who is eligible for adoption, and that his contrary view must be overruled in this case. We observe that it was not open to the Subordinate Judge to question a decision of this Court, because it is not a “Full Bench case.” We think it by no means clear that the phrase “the reflexion of a son,” was intended to bear the limited signification which he has put upon it; and looking to the place in which it is found, we think it is vary questionable whether it was intended to limit the generation from which a son might be adopted, or as anything more than a descriptive epithet applied to the child adopted. The phrase, as has been said, occurs only in the portion of the book which prescribes the ceremonial, and not in the part which lays down rules as to the selection of a son. Had the Lawgiver intended to suit the choice to the one generation, next below the intending ??? he would surely have laid it down distinctly and not ??? left it to be doubtfully, and with much dispute, evolved from an epithet applied to the child in the verses describing the ceremonies to be performed, and as to whom those ceremonies have been nearly completed. The passage has no doubt provoked discussion and difference of opinion amongst the Pundits, but so far as either common sense or any judicial authority goes, there is no ground for holding that a grand-nephew or a cousin's grandson, when adopted, does not equally, with a nephew, bear the reflexion of a son. We prefer, therefore, to follow in the course pursued by the Courts hitherto, and to hold that the adoption by Nobo Krishna Banerji of Bissessur was valid. So far, therefore, as the Subordinate Judge's decision in this suit is based upon the finding that Bissessur was not legally adopted, and that defendant Kedarnath was, it must be set aside; and the plaintiffs being admittedly the heirs of Bissessur will have a decree for all the property subject to the rights of Kedarnath, if any, under the will of Nobo Krishna. The provisions of that will have been mentioned above, and that it is a valid will was found by the lower Court, and has been conceded by the Vakeel for the plaintiffs before us. For the plaintiff it is contended that under the will the defendant is only entitled to retain his half of the property The lower Court held that this was his bequest independently of his position as adopted son. That Court also held him to be entitled to possession as sebait of the property because, whereas power was given to Makhuda Debi to adopt one or other of Bissessur and Kedar to be sebait after her, Bissessur had died, and she must be supposes to have appointed Kedar. The remaining property over which Makhuda was appointed manager as executrix under the will the lower Court held to be Kedar's by inheritance as adopted son.

As our decision deprives him of this status, he must give up the last-named property. As to we find that it was optional with Makhuda Debi to appoint Kedarnath or not; and she did not appoint him. She was not bound to appoint either him or Bissessur. We do not, therefore, agree with the lower Court in holding that, because the latter is dead, the former must be supposed to have been appointed. But the property being debuttur, the plaintiffs have no right to obtain possession of it unless Makhuda having omitted to appoint a sebait, the Court, far special reasons, sees fit to appoint them to fill that office. There is nothing before us which induces us to consider them more fit to be sebaits than the defendant Kedarnath, who is at present in possession, and who is one of the two whom Nobo Krishna designated as the persons between whom the selection might be made. We decline, therefore, to disturb him in the present suit.

As regards the property the defendant has taken objection to the finding of the Subordinate Judge that one-half of it vested absolutely in Bissessur, and upon his death became the property of his heir. If this be correct, the plaintiffs are now entitled to have that moiety. But upon consideration of the terms of the will, we are disposed to the opinion that was not left to Bissessur and Kedarnath in shares vesting in them respectively. It was simply assigned for the maintenance of both, under the management of Makhuda Debi; and it was specifically provided that should Bissessur, on growing up, fail to live in the family residence of the testator, he should not have the property. Thus it appears that it was not to vest in him absolutely, and we think that so long as Kedarnath lives the property must be considered as appropriated to his maintenance. Plaintiffs, therefore, are not entitled to oust him. The result is, that the decree of the lower Court will be varied to this extent, viz., that the plaintiffs will have a declaration that Kedarnath is not the validly adopted son of Nobo Krishna, and that they obtain possession of the property described as in the will of Nobo Krishna Banerji.

The parties will pay their own costs of both Courts.