BHAGWAT KOER vs DHANUKHDHARI PRASHAD SINGH

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1919 Supreme(SC) 39

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT CAVE, LORD PHILLIMORE, SIR JOHN EDGE AND MR. AMEER ALI.
BHAGWAT KOER - Appellant
Versus
DHANUKHDHARI PRASHAD SINGH - Respondents
On Appeal from the High Court at Calcutta.
Decided On : June 30. 1919.

Advocates:
Solicitors for appellant :Watkins & Hunter. Solicitor for respondent: E. Dalgado.

Important Points

A power of adoption in a will is strictly limited by its conditions; the birth of any child precludes such power if the will specifies "no child be born." Furthermore, a Hindu widow's total renunciation of her estate in favor of a reversioner is valid and binding.

Subject

Civil Law - Hindu Law - Succession and Adoption

Act Referred

HINDU LAW: .

Headnote

(A) Hindu Law - Adoption and Wills - Power of adoption conferred by a will is contingent upon the conditions specified therein - Where a will provides for adoption only if no male or female child is born, the birth of a daughter, even if she dies in infancy, precludes the exercise of the power to adopt.

(B) Hindu Law - Widow's Estate - Relinquishment - A Hindu widow can renounce her interest in her husband's estate in favor of the nearest reversioner - Such renunciation, whether termed surrender or abandonment, is effective if there is a bona fide and total renunciation of the right to hold the property - An agreement to accept maintenance and cease litigation, followed by long-term acceptance of such maintenance, constitutes a complete relinquishment.

(C) Indian Succession Act, 1865 - Section 106 - Posthumous children - Interest of a posthumous child vests at birth.

Facts of the case:
Three brothers held properties under Mitakshara law. One died without issue, leaving a widow. Another died leaving a son who later died leaving two widows and a posthumous daughter. The son's will provided for the widows and a power of adoption if no children were born. The surviving widow adopted a son. A reversionary heir challenged the adoption and claimed the estate of the first deceased brother, arguing that the widow of the first brother had not validly relinquished her rights.

Findings of Court:
The court found that the birth of a daughter precluded the power of adoption under the will. It further held that the estate of the testator vested in the widows for life and then the daughter. Regarding the first deceased brother's estate, the court found that the widow's agreement to accept maintenance and waive claims amounted to a valid relinquishment in favor of the nearest reversioner.

Issues: Whether the birth of a daughter precludes a power of adoption granted in a will on the condition that no child be born; and whether a widow's agreement to accept maintenance and waive claims constitutes a valid relinquishment of her estate.

Ratio Decidendi: The court ruled that the express terms of a will must be adhered to, and the birth of any child prevents the operation of a power of adoption contingent on no child being born. Additionally, a Hindu widow may voluntarily efface herself from succession through a total renunciation of her rights, which can be established by an agreement and subsequent conduct.

Result: Appeals in suits 200 and 198 dismissed; appeal in suit 199 allowed and the suit dismissed.

Legal Category Hierarchy

Judgement

Consolidated Appeals from three decrees of the High Court (May 22, 1913), two of which affirmed decrees of the Court of the first Subordinate Judge of Saran, and one of which modified a decree of that Court.

The three suits out of which the consolidated appeals arose were brought in 1907 by Dhanukhdhari Prashad Singh against Musammat Bhagwat Koer and Ragheshwar Indar Sahi, whom she had purported to adopt to her deceased husband Mahabir Singh ; a second plaintiff, a purchaser to whom it is not necessary to refer further, was joined as a plaintiff in the second and third suit.

The facts giving rise to the litigation appear from the judgment of their Lordships.

The nature of the suits and the decisions arrived at by the Subordinate Judge and the High Court (which heard the three appeals together) were shortly as follows.

Suit No. 200 of 1907 was to set aside the adoption. Both Courts held that in the events which happened the adoption was not authorized by the will of Mahabir, and the adoption was accordingly set aside.

Suit No. 198 of 1907 was for a declaration that under the will of Mahabir and in the events which happened, Dhanukhdhari was entitled to immediate possession of Mahabirs estate. In this suit the rights of the parties depended entirely upon the true construction of the will of Mahabir, the material parts of which are set out in the judgment of their Lordships. Both Courts held that under that will Dhanukhdhari would be entitled only upon the death of Bhagwat Koer and that the suit for immediate possession failed ; the High Court varied the decree by striking out a declaration under s. 42 of the Specific Relief Act, 1877, that Dhanukhdhari was entitled to succeed upon the death of Bhagwat Koer.

Suit No. 199 of 1907 In this suit Dhanukhdhari claimed that Jugalkishore who died in 1872, died separate, and that he (Dhanukhdhari) was entitled to succeed to the deceaseds estate upon the death in 1904 of Anandi Koer, the deceaseds widow. Both Courts found (contrary to a decision given in 1874 in proceedings under Act XXVII. of 1860) that in 1864 there had been a partition between Jugalkishore and his brothers, and held that Anandi Koer was therefore entitled to the estate for her life, and that upon her death Dhanukhdhari succeeded as reversioner. The High Court affirmed the view of the trial Judge that the ekrarnama executed in 1874 on behalf of Bhagwat Koer, the terms of which appear from the judgment of their Lordships, was invalid on the ground that it was not within the authority of her agent, that it was obtained by corruption, and had not been ratified by her. It was accordingly unnecessary for the High Court to consider what would have been the legal effect of that agreement. The learned judges (Chitty and Teunon JJ.), however, said " the document in itself does not in our opinion amount to such a surrender or relinquishment as the defendants contend. It amounts simply to an admission that the three brothers were joint, an admission which clearly would not bind the plaintiff, even if it had been made. No doubt Anandi Koer, who lived for some 30 years after these events, was content to receive the maintenance, but there is nothing to show that she had independent advice or was ever really informed of her rights in the matter." They rejected a plea of limitation, pointing out that under Art. 141 of Sched. II. of the Indian Limitation Act, 1877, the period within which Dhanukhdhari as reversioner could claim was 12 years from the death of Anandi Koer, and that it was not material that Anandi had allowed a claim by her to become barred. In the result Dhanukhdhari was given a decree.

The first and the third of the present appeals (namely, those in suits No. 200 and No. 199), were by Bhagwat Koer and the adopted son, and the second (namely, that in suit No. 199) was by Dhanukhdhari.

1919. May 19, 20. De Gruyther K.C. and Dube for the appellants, Bhagwat Koer and the adopted son. As to suit No. 200 The adoption

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