Judgement

Appeal (No. 133 of 1923) from a decree of the Court of the Judicial Commissioner (March 12, 1920) reversing a decree of the Court of the Additional District Judge of Amraoti.

The suit was brought by the respondent, a minor suing by her guardian, to recover from the appellant the movable and immovable property of her father, Ramdhan, a Hindu of the Agarwalla caste, who died on June 14, 1914. The appellant, who had taken possession of R.s property, alleged that he was the adopted son of Joharmal, a deceased brother of Ramdhan, and that the property in suit had been the joint property of the two brothers.

The facts appear from the judgment of the Judicial Committee.

The Additional District Judge held that the alleged adoption was established. He found that the appellant had been given in adoption by his mother in 1903; he also found that the brothers were joint in estate. He accordingly dismissed the suit.

On appeal to the Court of the Judicial Commissioner the decree was reversed. The learned judges held that there had been no giving or taking of the appellant in adoption, and that no estoppel arose. The Court decreed that the defendant should deliver to the plaintiff possession of the property claimed by her in the schedules to her plaint, and pay mesne profits, and directed an inquiry as regards the mesne profits.

1924. Nov. 18, 20. De Gruyther K.C. and S. Hyam for the appellant. A complete and valid adoption was estab lished. Further, Ramdhan was estopped by his acts and statements from denying the adoption; the respondent is estopped in equity if not under s. 115 of the Indian Evidence Act Kannammal v. Virasami (( 1892) I. L. R. 15 M. 486.); Parvatibayamma v. Ramakrishna Rau (( 1894)

I. L. R. 18 M. 145.); Vaithilingam Mudali v. Murugaian. (( 1904) I. L. R. 37 M. 529.) [Reference was made also to Sarat Chunder Dey v. Gopal Chunder Laha (( 1892) L. R. 19 I. A. 203.) and to Cooper v. Phibbs. (( 1867) L. R. 2 H. L. 149, 170.)] In any case a decree referring to the whole of the property in the schedules should not have been made. Questions as to whether part of the property formed part of the estate have not been tried.

Dunne K.C. and Dube for the respondents were called upon only as to the form of the decree; they referred, however, on the question of estoppel to Gopee Lall v. Chundraolee Buhoojee. (L. R. I. A. Supp. 131.)

1925. Feb. 2. The judgment of their Lordships was delivered by

MR. AMEER ALI This appeal arises out of a suit brought by the respondent, Soni Bai, in the Court of the Additional District Judge of Amraoti, in East Berar, for a declaration that she was entitled by inheritance to the estate of her father, Ramdhan Marwari, who died at Amraoti on June 24, 1914. She was a minor at the time and brought the suit by her guardian, her father-in-law, Narain Das, as next friend.

The facts of the litigation may be stated shortly for the purposes of this judgment. Ramdhan, the plaintiffs father, resided at a place called Khanapur, Taluk Morsi, in the district of Amraoti and carried on business there; whilst his brother, one Joharmal, lived in the township of Chandur Bazar, in Taluk Ellichpur, where he had a shop. Both were Agarwallas by caste.

Joharmal died in September, 1912, and the defendant Dhanraj claims to have been adopted by him some years before his death. On the death of Ramdhan in 1914, Dhanraj took possession of his estate, claiming to be entitled to Ramdhans property as the adopted son of his brother Joharmal. There appears to have been a proceeding under s. 145 of the Code of Criminal Procedure with regard to the possession of certain lands belonging to Ramdhan, and by an order of the District Magistrate made on September 17, 1914, the defendant was put in possession of that property also.

In order to establish his right to the succession to Ramdhans estate, in opposition to the claim of Ramdhans rightful heir, the defendant alleged that he had been adopted in accordance with the rules prescribed by