Judgement

Appeal (No. 126 of 1929) from a decree of the High Court (May 25, 1928) reversing a decree of the Subordinate Judge of Meerut (May 21, 1925).

The appellant instituted a suit against the respondent, a minor represented by his natural mother, contending that an adoption of the respondent by the appellant was invalid, and that it should be declared that a deed of adoption by her dated August 8, 1918, was void.

The facts appear from the judgment of the Judicial Committee.

The trial judge held that the adoption was invalid, as the defendant was within the class of persons who by the terms of the authority were not to be adopted ; he further held that the plaintiff was not estopped from questioning the validity of the adoption.

On appeal to the High Court (Sen and Niamat-ullah JJ.) the decision was reversed upon both points. The appeal is reported at I. L. R. 50 A. 885.

1932, Dec. 16. Sir Leslie Scott K.C. and J. Nissim for the appellant.

Subba Row for the respondent.

[Reference was made to Bhattacharyyas Hindu Law, pp. 112-116 ; Maynes Hindu Law, para. 701 ; Bhaiya Sher Bahadur v. Bhaiya Ganga Bakhsh Singh. (( 1913) L. R. 41 I. A. 1, 21.)]

1933. Jan. 12. The judgment of their Lordships was delivered by

LORD THANKERTON. The appellant is a widow of Ram Saran Das, a Hindu, who died in December, 1896, without issue, but leaving two widows—namely (1.) the appellant, Musammat Kalawati, and (2.) Musammat Basanti, and his mother, Musammat Bhawan Kunwar. He left considerable property, movable and immovable, and shortly before his death he had executed a will on December 6, 1896, under which he made the appellant the absolute owner of his property and gave her full powers of disposal and alienation in any way she liked. He also fixed certain allowances for Musammat Basanti and Musammat Bhawan Kunwar, and made provision for a residence for them. As regards adoption, he made the following provision "I authorize Musammat Kalawati to adopt when she wishes, after my death, anybody whom she likes. After making an adoption, Musammat Kalawati or the (adopted) son shall have no power to make a transfer of my property till the life-time of Musammat Kalawati. Musammat Kalawati shall act as guardian of the adopted son so long as he does not come of age, and, during his minority, she shall have power to carry on the management of the property. After the attainment of majority by the adopted son, he and Musammat Kalawati will have power to carry on the management and to enjoy the income of the property, either jointly or in equal shares."

On December 10, 1896, the testator amended his will by the addition of the following provision " Further it is stipulated that if Musammat Kalawati should like to adopt a son, she shall not adopt any son of the relations of her family or of that of Musammat Basanti or Bhawan Kunwar. If my brother Jiwan should give his son into adoption she should adopt him otherwise she should adopt some other boy, and she shall not have a power to make a gift. In case of necessity Musammat Kalawati shall have power to sell or mortgage a portion of the property."

The testators brother having declined to give his son in adoption, the appellant, on August 8, 1918, adopted the minor respondent according to the usual forms as a son to herself and her deceased husband, and, of the same date, she executed a deed of adoption in his favour, which purported to proceed in accordance with the provisions of the will. The factum of adoption is not disputed.

The minor respondent is a son of Musammat Chandrawati, a daughter of the appellants brother, Brij Ballabh Saran.

On May 28, 1924, the appellant instituted the present suit against the respondent, asking for a declaration " that the deed of adoption, dated August 8, 1918, executed by the plaintiff in favour of the defendant is null and void as against the plaintiff according to law, and that the defendant is not the adopted son of the plaintiff or her husband ; nor can he acquire any righ