1960 Supreme(Cal) 35

HIGH COURT OF CALCUTTA
P. C. MALLICK, J.
Biswanath Agarwalla
Versus
Dhapu Debi Jejodia
Suit No. 1342 of 1956
Decided On : 10-02-1960

Headnote:

Suit for declaration that plaintiff is adopted son of Ramprotap and as such entitled to his estate. There is also the prayers for possession, for injunction, damages and accounts. The defendants impleaded are, Dhapu Debia daughter of Ramprotap and her husband Chandanmul Jajodia. The allegations made are that Munia Debi widow of Ramprotap, on 25-9-1950 adopted the plaintiff as a son of Ramprotap. It is alleged that Munia Debi had authority to adopt though it is not stated when such authority was given and whether it was oral or in writing. The plaintiff is the grandson of Ramprotap by his daughter Rukmini Debi. Rukmini died in December 1949 prior to the adoption. It is pleaded that "according to the custom and practice prevailing amongst the Agarwal Community to which the parties belong, a daughters son can be validly given and taken in adoption." Munia Debi, Ramprotaps widow died on 5-3-1956. On Ramprotaps death, Munia along with her son Ghasirami became entitled to the estate of Ramprotap in equal share in 1940. On the death of Ghasiram in 1943, Munia inherited Ghasirams estate as well and till her death Munia was in control and management of the entire estate. It is alleged that Munia had no stridhan property. After Munias death the defendants are alleged to have wrongfully taken possession of the estate of Ramprotap and Ghasiram, to have surreptitiously removed the moveables including ornaments, jewelleries and utensils, have realised and are still realising the rents of the immovable properties in denial of the plaintiffs title as the adopted son of Ramprotap. As part of the estate left by Ramprotap is situate outside the jurisdiction of this Court, leave under Cl. 12 of the Letters Patent has been obtained.

Fact of the Case:

Munia Debi widow of Ramprotap, on 25-9-1950 adopted the plaintiff as a son of Ramprotap. It is alleged that Munia Debi had authority to adopt though it is not stated when such authority was given and whether it was oral or in writing. The plaintiff is the grandson of Ramprotap by his daughter Rukmini Debi. Rukmini died in December 1949 prior to the adoption. It is pleaded that "according to the custom and practice prevailing amongst the Agarwal Community to which the parties belong, a daughters son can be validly given and taken in adoption." Munia Debi, Ramprotaps widow died on 5-3-1956. On Ramprotaps death, Munia along with her son Ghasirami became entitled to the estate of Ramprotap in equal share in 1940. On the death of Ghasiram in 1943, Munia inherited Ghasirams estate as well and till her death Munia was in control and management of the entire estate. It is alleged that Munia had no stridhan property. After Munias death the defendants are alleged to have wrongfully taken possession of the estate of Ramprotap and Ghasiram, to have surreptitiously removed the moveables including ornaments, jewelleries and utensils, have realised and are still realising the rents of the immovable properties in denial of the plaintiffs title as the adopted son of Ramprotap. As part of the estate left by Ramprotap is situate outside the jurisdiction of this Court, leave under Cl. 12 of the Letters Patent has been obtained.

Finding of the Court:

The suit is dismissed. Having regard to the relationship between the parties I make no order as to costs. I certify that this is a fit case for employment of two counsel.

Issues: 1. (a) Did Munia Debi have authority from her husband to adopt the plaintiff as a son unto her husband? (b) Did Munia Debi adopt the plaintiff as a son unto her husband on 25-9-1950? (c) Is there any custom and practice prevailing amongst the Agarwal Community to which the parties belong that a daughters son can be validly given and taken in adoption? (d) Was the plaintiffs adoption, if any, valid? 2. Were premises Nos. 1 and 2, Jagabandhu Bural Lane purchased by Rampratap Udhani out of his own money and in the benami name of Munia Debi? 3. (a) Is the Deed of Trust dated 29-7-1949 in respect of premises Nos. 1 and 2 Jagabandhu Bural Lane void for uncertainty? (b) Does the said deed amount to a gift of the said premises? (c) Has not the said deed been acted upon or give effect to? 4. Did the defendant No. 2 take possession of the assets and properties of Ghasiram Udhani or Rampratap Udhani? 5. Has this Court jurisdiction to try this suit? 6. Is the suit maintainable? 7. Is the suit barred by limitation? 8. To what relief, if any, is the plaintiff entitled?

Ratio Decidendi: The court held that the plaintiff failed to establish benami and the ostensible owner Munia must be held to be the beneficial owner of the property as well. Once it is proved that Munia is the beneficial owner Dhapu inherits the property on Munias death as sole heir. It becomes immaterial therefore whether the deed of settlement was acted upon or not.

Final Decision: Suit dismissed.