Judgement

Appeal (No. 127 of 1931) from a decree of the Court of the Judicial Commissioner, Central Provinces (March 27, 1929), affirming a decree of the Additional District Judge of Raipur.

The appellant and respondent No. 2 sued respondent No. 1 claiming the estate of Rao Dani as reversionary heirs upon the death of his widow. They alleged that the adoption of respondent No. 1 by Rao Danis widow was invalid on the ground that it was in violation of the terms of a will executed by the deceased on November 26, 1911. The defences included (1.) That the will was not binding ; first, because it was contingent and in the events which had happened became inoperative, and secondly, because it had been orally revoked and the adoption orally authorized; (2.) That the terms of the will had been substantially complied with.

The trial judge rejected all the defences under the first head, but dismissed the suit, holding that the terms of the will had been substantially complied with.

An appeal to the Court of the Judicial Commissioner was dismissed upon the ground that the will was contingent and had become inoperative, and that consequently the widows power to adopt was unfettered. The other defences were not dealt with.

The terms of the will and the material facts appear from the judgment of the Judicial Committee.

Upon the present appeal the only question argued was whether the will on its true construction was contingent.

1932. Oct. 28. Dunne K.C. and Abdul Majid for the appellant.

De Gruyther K.C. and Wallach for respondent No. 1.

With regard to contingent and conditional wills reference was made to In the Estate of Bryan ([ 1907]

P. 125.) and In the Estate of Vines. ([ 1910] P. 147.)

Nov. 29. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. The appellant and the second respondent are the reversionary heirs of Baboo Rao Dani who died on November 6, 1918, leaving him surviving his widow, Anandabai, and no issue. Anandabai died on November 27, 1924, and on April 7, 1926, the suit out of which this appeal arises was instituted by the reversioners claiming his estate. The defendant to the suit, the first respondent before the Board, denied their right, alleging title in himself as the duly adopted son of Baboo Rao Dani. The factum of his adoption by Anandabai on April 25, 1920, is not seriously disputed. The issue between the parties is as to its validity in law.

The family was found by the trial judge and was admitted in the Court of the Judicial Commissioner to be governed by the Bombay school of Hindu law, under which a widow has in herself power to adopt, subject only to such restriction, if any, as may have been imposed upon her by her husband, The appellants contention in the present case is that Anandabais power was so restricted by Baboo Rao Danis will made on November 26, 1911, and that the adoption of the first respondent was in violation of its terms.

The provisions of the will, the due execution of which is not in dispute, so far as regarded adoption were as follows " After all this is done (i.e., after certain dispositions of the will have been carried out) a boy should be taken in adoption to perpetuate the name of ancestors and manage the estate. No boy has been yet taken in adoption. It is expected that (any) of my paternal uncles sons may get a son. If he gives (the boy) my wife should take him in adoption. Seven years time is allowed for this. After seven years Jiwajis younger son Bhagwati should be taken in adoption.....Seven years time has been allowed for adoption, but if Vyenkat Rao Naik, Rao Bahadur Mahdik, Gagraj Singh and Sadasheo Rao Garad, think that (a boy) should forthwith be taken in adoption there is no objection to my wifes (adopting a boy immediately) according as they may advise. However, the debts should be satisfied and property of an income of five hundred rupees should be set aside for the School Department, first, and a boy should be taken in adoption for the remaining property.