Judgement

Law. Rep. 19 Ind. App. 101 ( 1891- 1892) Bireswar Mookerji V. Ardha Chunder Roy Chowdhry

25

TWO appeals from a decree of the High Court (May 21, 1886), which substantially affirmed a decree of the Subordinate Judge of the 24 Pergunnahs (Jan. 9, 1884).

The litigation related to the property of a family claiming descent from one Gouri Churn Chowdhry, who died in the Bengali year 1207 (1800-1 A.D.).

The facts are stated in the judgment of their Lordships.

There were two suits, one of which was brought by Gobind-Mohini Debi, and the other by Ardha Chunder Roy Chowdhry for the purpose of ascertaining the rights of the parties in the property in suit and consequential relief.

Gouri Churns estate vested, in the events which had hap pened, in the representatives of four of his sons. The main questions in the appeal related to the rights, inter se, of the descendants of two out of these four sons, viz., Prankrishna and Radha Krishna. Those questions were, first, as to the validity of the adoption of Ardha Chunder, one of Radha Krishnas two sons, by Juggut Chunder, a son of Prankrishna; second, in case of the invalidity of such adoption, whether he took, in addition to a moiety of his natural fathers estate by inheritance, certain rights by bequest as a persona designata under Juggut Chunders will; third, whether in that case he was put to his election.

Both Courts below found as a fact that there had been no gift and acceptance, and that the alleged adoption was invalid. With regard to the construction of Juggut Chunders will the Subordinate Judge was of opinion that the testator intended an absolute gift in favour of Ardha Chunder, and not that it should be contingent on his being an adopted son; but that the absolute estate so granted was, "defeasible in the contingency of his not leaving a male issue at the time of his death," but that the latter question might be left for final determination till the happening of that contingency.

The result was that the Subordinate Judge, by his decree, declared the adoption of Ardha Chunder by Juggut Chunder invalid, and that he was therefore entitled, by right of inheritance, to half of Radha Krishnas estate, and was further entitled, under the will of Juggut Chunder, to the share specified therein subject to the terms thereof.

The High Court concurred with the first Court, and held that Ardha Chunder, though not validly adopted, took an absolute estate of inheritance under the will of Juggut Chunder, as a designated person, but that the absolute estate thereby given was defeasible upon his dying without leaving a son, which the High Court construed to mean a male descendant in the male line.

Cowie, Q.C., and Branson, for the Appellants in the first appeal, the grandsons of Juggut Chunder, contended that as Ardha Chunder’s adoption was found to be invalid, his interest was limited to that which he derived by inheritance as one of the sons of Radha Krishna. He took nothing by inheritance from Juggut Chunder, and under the will of the last named it ought to have been held that he took nothing, for on its true construction the gift was to him as adopted son, and that as he did not answer that description the gift failed. The High Court relied upon the authority of Nidhoomoni Debya v. Saroda Per shad Mookerjee (Law Rep. 3 Ind. Ap. 253.). It was contended that that case ought to be distinguished in favour of the Appellants as in Fanindra Deb Raikat v. Rajeswar Dass (Law Rep. 12 Ind. Ap. 72.).

C. W. Arathoon, for the Appellant Shib Chunder, contended that Ardha Chunder}s adoption was not invalidated. There had been a sufficient gift and acceptance before the ceremonies and during the lifetime of Radha Krishna. There was evidence of an acknowledgment of gift by Radha Krishna at the

Law. Rep. 19 Ind. App. 101 ( 1891- 1892) Bireswar Mookerji V. Ardha Chunder Roy Chowdhry

26

date of his death, which shews that he considered that he had made it effectively. There was evidence also that Juggut Chu