Judgement

Appeal (No. 112 of 1929) in forma pauperis from a decree of the High Court (December 16, 1927) affirming a decree of the Subordinate Judge of Cuttack (August 6, 1923).

The appellants instituted a suit against the respondent claiming certain property as reversionary heirs of Ram Gopal Bose, who died in 1869, upon the death of his widow in 1920. The respondents father, since deceased, had been adopted in 1885 by the widow who purported to act under an authority to adopt executed by her husband. The property in suit had been inherited by the mother of Ram Gopal Bose and had descended from her to him. It was not disputed upon the appeal that the authority to adopt was a genuine document, and that the adoption had been made in fact, the only question now raised being whether it was a valid exercise of the power conferred.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit, holding that the adoption was valid. In his view the evidence showed that Golak Prosad was advised that there was an obstacle to the adoption of Chema, and that thereupon he gave the widow a general permission to adopt a stranger. The view that he gave a general permission, however, was disapproved on appeal to the High Court, and was not raised upon the present appeal. The High Court affirmed the decree dismissing the suit. The learned judges (Ross and Wort JJ.) delivered separate judgments substantially to the same effect. They were of opinion that the question whether there was an obstacle to the adoption of Chema within the meaning of the deed depended upon whether at the time there was a recognized prohibition or at least a bona fide doubt as to its validity, and not upon later decisions, including those as to whether a Bengal Kayastha belongs to the regenerate castes. As Golak Prosad had taken legal advice and received an adverse opinion there was an obstacle within the terms of the authority. In their view the primary intention of the deed was that an adoption should be made, and that therefore effect should be given to the adoption of 1885 even though the permission of Golak Prosad could not be obtained, as he was dead.

1930. June 2, 3. Wallach for the appellants. The adoption of the respondents father was invalid. There was no obstacle according to the shastras to the adoption of Chema. Hindu law permits the adoption of a half-brother; even if it does not in the case of the regenerate castes, the parties were Bengali Kayasthas, and as such were, it is submitted, Sudras. Secondly, the permission of Golak Prosad was a condition precedent to the adoption made, and it was not obtained.

[Their Lordships said that there were concurrent findings that Golak Prosad had legal advice that an adoption of Chema would be invalid, and in their view that was an "obstacle" within the meaning of the deed whether the advice was correct or not; the only contention which could be argued was therefore that last mentioned by counsel.]

The power to adopt was in terms restricted to an adoption with the permission of the husbands father.

The Board held in Amrito Lal Dutt v. Surnomoye Dasi (( 1900) L. R. 27 I. A. 128,134.) that an authority to adopt could be restricted by requiring the consent of a particular person, and that if that consent cannot be obtained owing to the death of that person the authority cannot be exercised. It is well established that an authority to adopt must be strictly pursued Chowdhry Pudum Singh v. Koer Oodey Singh (( 1869) 12 Moo. I. A. 350, 354.) ; Mutsaddi Lal v. Kundan Lal (( 1906)

L. R. 33 I. A. 55,57.) ; Sitabai v. Bapu Anna Patil. (( 1920) L. R. 47 I. A. 202.) In English law the donee of a power to be exercised with the consent of a named person cannot exercise the power after that persons death. The terms of the deed did not indicate that the primary object was to secure an adoption for the spiritual benefits arising to the husband, and it in clear terms made the permission a condition