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1890 Supreme(SC) 21
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD WATSON, SIR BARNES PEACOCK, AND SIR RICHARD COUCH.
KALI KISHORE DUTTA GUPTA MOZOOMDAR - Appellant
Versus
BHUSAN CHUNDER - Respondents
On Appeal From the High Court in Bengal.
Decided On : July. 2, 3, 4, 26. 1890.
Solicitors for the Appellant:Tatham, Son, & Lousada. Solicitors for the ^Respondent: T. L. Wilson & Co.
A widow's adoption of a son is valid if she possesses a legally conferred power to adopt from her deceased husband, supported by evidence such as a will or a formal deed of power.
Headnote:(A) Hindu Law - Adoption - Power to adopt - Validity of adoption by a widow under authority granted by the husband - Where a husband grants a formal power to adopt to his widow, and such power is supported by a will and other evidence, an adoption performed under that power is valid.
(B) Evidence - Admissibility of secondary evidence - Copy of a document may be admitted as evidence when the original is shown to be lost or stolen, provided the copy is proved to be a true representation of the original.
(C) Judicial Conduct - Findings of fact must be based on evidence on record - Speculative insinuations regarding the cause of death or allegations of fraud and conspiracy without a tittle of evidence are unwarranted and undermine the credibility of a judgment.
Facts of the case:
A childless man died leaving a widow as his sole heiress. The widow allegedly adopted a son under a power to adopt granted by her husband. A collateral relative claimed the estate as the next reversionary heir, alleging that the adoption was a fraud, that the widow had no authority to adopt, and that the power to adopt was fabricated. The lower court ruled in favor of the claimant, based largely on suspicion and speculation. The High Court reversed this, finding the power to adopt and the will of the deceased to be genuine and the adoption valid.
Findings of Court:
The court found that the deceased had executed a power to adopt in favor of his wife, which was supported by a will directing the adoption of a fit boy. The evidence established that the document had been in government custody for a period, supporting its authenticity. The claimant failed to prove his alleged descent and pedigree to establish his right as a reversionary heir.
Issues: The main issues were whether the plaintiff was the next reversionary heir of the deceased and whether the defendant was the legally adopted son of the deceased's widow under a valid power to adopt.
Ratio Decidendi: A validly executed power to adopt, supported by a will and witness testimony, is sufficient to validate a subsequent adoption by a widow. Appellate courts will affirm findings of fact unless they are perverse, and judicial speculation regarding criminal acts without evidence is impermissible.
Result: Judgment of the High Court affirmed.
Legal Category Hierarchy
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family law
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adoption
- power to adopt
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adoption
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property law
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inheritance
- collateral succession
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inheritance
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practice and procedure
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evidence
- secondary evidence
- genealogical proof
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evidence
Judgement
Appeal from a decree of the High Court (August 13, 1887), reversing a decree of the Subordinate Judge and Deputy Commissioner of Goalpara (July 27, 1886).
The subject of dispute was the estate of Juggut Chunder Butt, who died childless on the 5th of April, 1867, leaving as his heiress his widow, Bama Soondari Gupta, who died on the 7th of July, 1877.
This estate the Appellant claimed as next reversionary heir of Juggut Chunder Dutt at the time of the death of Bama Soondari, and alleged by his plaint that the Respondent, who was in possession of all, or nearly all, that estate as a son of Juggut Chunder Butt, adopted by Bama Soondari, under an alleged power from her husband, was not in fact or law such adopted son, as Juggut Chunder Butt had not left any power to adopt, and Bama Soondari had never adopted the Respondent.
The substantial questions raised on the issues were firstly, Was the Plaintiff the next reversionary heir of Juggut Chunder Butt at the death of Bama Soondari, and as such entitled to challenge the title of the Defendant, who was in admitted possession ? And, secondly, Supposing that the Plaintiff succeeded in proving his pedigree, was the Defendant the validly adopted son of Juggut Chunder Dutt ? The Courts below arrived at directly opposite conclusions on both points. The first Court held that the Plaintiffs evidence established his alleged descent, and that the Defendants evidence had failed to prove either that Juggut Chunder Dutt ever gave a power to his wife Bama Soondari, or that she ever conscientiously or validly acted under that alleged power and adopted the Defendant.
The High Court, on the other hand, held, on the first question, that the Plaintiff had failed to prove his alleged descent, and that the genealogical table on which he relied for that purpose " was entitled to no credit at all."
And on the second question, that the Defendants evidence and also part of the Plaintiffs evidence, established that Juggut Chunder Butt had given his wife, Bama Soondari, a power to adopt, and that the alleged copy of it, which the High Court admitted in the absence of the original, which was shewn not to be forthcoming, was a copy of the original power, and that Bama Soondari, " being in the full possession of all her faculties at the time," and not " moribund," or in a state of collapse, as contended by the Plaintiff, and found by the first Court, had exercised that power and validly adopted the Defendant.
Rigby, Q.C., Houghton, and Robinson, for the Appellant.
Sir H. Davey, Q.C., Doyne, and Mayne, for the Respondent.
The judgment of their Lordships ,was delivered by
SIR BARNES PEACOCK—-
This is an appeal from a decree of the High Court at Calcutta reversing a decree of the Subordinate Judge of Goalpara, who was also Deputy Commissioner of that district, and from two interlocutory orders of the High Court in the appeal to that Court from the Subordinate Judge.
The Plaintiff is the Appellant, and the Defendant the Respondent. Each of the parties claims to be heir-at-law of Juggut Chunder Dutt Gupta Mozoomdar, deceased, who was an inhabitant of Khagrabari, in the station of Dhubri, in the said district.
Juggut Chunder died on a pilgrimage in the year 1867, with- out issue, leaving a widow, Bama Soondari Gupta, as his sole heiress. The precise date of his death is disputed, the Plaintiffs contention being that he died on a day in Falgoon, 127f3, corresponding with the 7th of March, 1867, whilst that of the Defendant is that he died on the 24th of Cheyt, 1273, corresponding with the 5th of April? in the same year, 1867.
The parties were not agreed as to the age of Bama Soondari at the time of her husbands death. The Plaintiff makes her out to have been about nine years of age, whilst the Defendant puts her age at that time at twelve or thirteen. The point is not very material, and it may therefore be taken at nine, in accordance with the Plaintiffs view.
Bama Soondari died on the 14th of Assar, 1284, corr
