Judgement

Appeal from a judgment and decree of the High Court (September 23, 1910) reversing a judgment and decree of the Subordinate Judge of Poona (July 31, 1906).

The suit was instituted by the appellants to establish the validity of the adoption of the fourth appellant, Jagannath Vasudeo, as the son of Vasudeo Harihar Pandit, deceased (known as Baba Maharaj), and to obtain ancillary declarations.

Baba Maharaj, who was a Brahman by caste, died on August 7, 1897, possessed of considerable ancestral property, and leaving a widow, Sakvarbai, then about sixteen years of age, and three daughters. By his will he appointed live named persons (the three first appellants and two others) as trustees to carry on the management of his estates after his death. The will provided that if his widow Sakvarbai did not give birth to a son, or if a son should be born but should be short-lived, then "with the vichare" (i.e., the advice or consent) "of the above-named gentlemen " (namely, the persons named as trustees) "a boy should be given as often as may be necessary in adoption on the lap of my wife in accordance with the shastras." One of the five named trustees declined to act, but the other four took over the management of the estates in accordance with the will.

The appellants, three of the trustees and Jagannath, by their plaint alleged that on July 27, 1901, the last named was duly given and received on the lap of Sakvarbai in adoption, and that she executed a deed of adoption and signed a letter to the boys father agreeing to receive him. The defendants were the widow, the remaining acting trustee, and the first respondent, a son subsequently adopted by Sakvarbai. The widow by her written statement denied the adoption and alleged that she was induced to sign the documents by the threats and coercion of the first two appellants. The other defendants adopted these defences.

A number of issues were settled, of which one was " whether the plaintiff No. 4 is the validly adopted son of Baba Maharaj." No issue was framed as to undue influence or coercion. The widow died before the trial, and the present second respondent, her daughter, was substituted for her.

The fourth appellant, the alleged adopted son, belonged to the gotra of the deceased Baba Maharaj.

The nature of the evidence, most of which was given on commission, appears from the judgment of their Lordships. The first and second appellants were examined and cross-examined, but no question was put to them as to the alleged threats or coercion, nor was this defence put forward at the trial.

The Subordinate Judge found on the evidence that the corporeal giving and taking of the fourth appellant in adoption was proved; he held that no religious ceremonies were legally necessary, since the boy was of the same gotra as his adoptive father and the adoption was intended to be complete without them.

The High Court (Chandavarkar and Heaton JJ.) reversed the decision of the Subordinate Judge, holding that there had not in fact been any giving and taking of the boy in adoption, and that in any case the adoption had been brought about by undue influence exercised upon the widow by the first and second appellants. The learned judges, therefore, did not find it necessary to consider the question as to whether the datta homam, or other religious ceremony, was essential to the validity of the adoption.

Sir Erle Richards, K.C., Sir William Garth, and Parikh, for the appellants. The finding of the Subordinate Judge that the boy was given and received on the lap of the widow was in accordance with the evidence. No doubt coercion or undue influence, if pleaded and proved, would be a defence Bayabai v. Bala. (( 1866) 7 Bomb. H. C. App. 1, p 1.) There was, however, no issue framed as to either coercion or undue influence, and the trustee appellants were not cross-examined to establish either of those defences. The undue influence found by the High Court was not pleaded, nor was it suggested at the trial;