A woman cannot adopt without the consent of her husband, and an adoption without such consent is invalid.

K. J. SENGUPTA, J. :- The above appeal has been filed by the plaintiffs/appellants being dissatisfied with the judgment and decree passed by the learned Trial Judge in Title Suit No. 173 of 1988 refusing to pass preliminary decree in respect of one of the four suit properties namely premises No. D-642 Lake Gardens, Calcutta (hereinafter referred to as the said suit properties). The appellants/plaintiffs brought the said suit in the 3rd Court of Assistant District Judge at Alipore against as many as 12 persons. Besides the suit property premises No. 162/8/1 Lake Garden, Kolkata now renumbered as D-620 Lake Gardens Kolkata, and 135 shares in the joint stock company known as R. Cambray and Company Private Limited and 150 shares in the joint stock company having its registered office at premises No. P-33 Mission Row Extension in the town of Calcutta are also subject-matter of the suit. Sum and substance of the case made out in the plaint is that the plaintiffs and the defendants are male and female descendants of one Narendra Chandra Kar, since deceased, who died on 15th of February 1962 intestate leaving him surviving three sons viz. Sisir, Sasadhar and Sunil and one daughter Protiva Bose and sole widow, all since deceased. The plaintiffs are the sons and daughter of late Sasadhar, while the defendants are sons and daughter of late Sisir and late Sunil. The plaintiffs' case was that all the suit properties belonged to late Narendra though ostensibly in the name of other persons. Their father inherited undivided 1/3rd share of the suit properties in view of death of his mother and sister Protiva. Hence the plaintiffs are jointly entitled to undivided 1/3rd share in the suit properties. All the suit properties did not stand in the name of Narendra. The immovable properties being item Nos. 1 and 2 were in the name of Protiva daughter of Narendra and Subasini being grandmother of the parties and wife of Narendra, since deceased respectively. As such, the plaintiffs in the plaint stated that those two immovable properties were really owned by one Narendra but the same were owned by Subasini and Protiva as benamidars. It was claimed that neither Subasini nor Protiva did anything to acquire such property. Protiva being the daughter could not acquire the said property as her husband was not well placed in his working life and he was merely an employee of the Reserve Bank of India and had a small monthly income as such he could not probably supply money to Protiva to acquire the said item No. 1 of the suit property. Therefore, the said property was a joint family property. In the plaint it was further claimed that alleged story of adoption by Protiva, of Swapan is illegal, invalid and the same was never acted upon, so Swapan cannot claim ownership of the said item No. 1 property to the exclusion of any other person.

In the plaint the following reliefs were claimed :

(a) Preliminary partition decree of the suit properties;

(b) Final partition decree;

(c) Declaration that the defendant No. 1 has not been the adopted son of Smt. Protiva Bose, since deceased.

2. None except the first defendant, Swapan contested the suit filing written statement of the defendants. All the defendants contested the said suit and said that the plaintiffs cannot have any share except in the premises No. D-620 Lake Gardens which stood in the name of the wife of Narendra. It was said that the first defendant, Swapan Kumar Kar was adopted by Protiva and this has been decided in another suit being Title Suit No. 11 of 1950 by judgment and decree. It is pertinent to mention that in both the written statements plea of maintainability of the suits as well as question of limitation was taken. The learned Trial Judge framed the following issues :

1) Is the suit maintainable in its present form?

2) Is there any cause of action to sue?

3) Is the suit bad for defect of parties?

4) Are the plaintiffs entitled to get decree as prayed for?

5) To what other relief or reliefs are t