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IN THE HIGH COURT OF ALLAHABAD
V. Bhargava and J. Sahai, JJ.
LALA BABU RAM - Appellant
Versus
KISHEN DEI - Respondents
First Appeal 8 Of 1951
Decided On : 03/21/1963
The adoption of a cousin sister's son is invalid under Hindu law, as it violates the rule that the boy to be adopted must not be one whose mother the adopting father could not have legally married. This rule is based on the principle that a man cannot adopt one with whose mother he could not have legally intermarried. The prohibition on the adoption of a cousin sister's son is not limited to the case of a male person adopting the boy to himself, but also extends to the case of a female adopting the boy with the assent of her husband. The rule is not confined to the case of a daughters son, sisters son and the mothers sisters son, but applies to all cases where the mother of the boy to be adopted is a woman whom the adoptive father could not have legally married.
Fact of the Case:
The plaintiff, a widow, filed a suit for possession of property left by her husband, Lala Madan Gopal. The defendant, the son of Smt. Sohini Devi, daughter of Lala Narain Dass, who was the paternal uncle of Lala Madan Gopal, claimed the property on the ground that he had been adopted by Lala Madan Gopal. The plaintiff challenged the validity of the adoption, contending that under the Mitakshara law, Lala Madan Gopal could not have adopted the defendant, who was his cousin sister's son.
Finding of the Court:
The court held that the adoption of the defendant was invalid, as it violated the rule that the boy to be adopted must not be one whose mother the adopting father could not have legally married. The court found that the defendant's mother was a woman whom Lala Madan Gopal could not have legally married, and therefore, the adoption was void.
Issues: 1. Whether the adoption of the defendant was valid under Hindu law? 2. Whether the rule against the adoption of a cousin sister's son is limited to the case of a male person adopting the boy to himself, or does it also extend to the case of a female adopting the boy with the assent of her husband? 3. Whether the rule is confined to the case of a daughters son, sisters son and the mothers sisters son, or does it apply to all cases where the mother of the boy to be adopted is a woman whom the adoptive father could not have legally married?
Ratio Decidendi: The court held that the adoption of the defendant was invalid because it violated the rule that the boy to be adopted must not be one whose mother the adopting father could not have legally married. The court found that the defendant's mother was a woman whom Lala Madan Gopal could not have legally married, and therefore, the adoption was void.
Final Decision: The court dismissed the defendant's appeal and upheld the trial court's decision that the adoption was invalid.
( 1 ) THIS is a defendants first appeal. The plaintiff-respon-dent Srimati Kishan Dei is the widow of one Lala Madan Gopal who was admittedly the last mate owner of the properties in dispute. The defendant-appellant Lala Babu Ram alias Brij Kishore is the son of Srimati Sohini Devi, daughter of Lala Narain Dass, who was the paternal uncle itatners brother) of Lala Madan Gopal aforesaid. The plaint allegations are as follows :--Lala Ram Dass, the father of the defendant-appellant Lala Babu Ram had considerable influence upon Lala Madan Gopal with the result that the latter declared the aeren-dant-appellant to be his adopted son on the 21st of May, 1940 and changed his name from Babu Ram to Brij Kishore. Lala Madan Gopal died on the 8th of October, 1942, and the plaintiff as also the defendant entered into possession or the property in dispute. The property was managed By the defendant-appellant. With the lapse of time the defendant-appellant became indifferent to the plaintiff and started ill-treating her with the result that the plaintiff had to start a separate mess. The defendant-appellant also started destroying the property left by Lala Madan Gopal. In April 1946, the plaintiff had legal consultation and was advised that under the Mitakshara law La!a madan Gopal could not have adopted the defendant-appellant who was his causin sisters son with the result that the adoption was invalid and void and that she was the exclusive heir of Laia madan Gopal. The relief claimed in the plaint was for possession over the property in dispute to the exclusion of the defendant ana in the alternative to one-half share in the same if the Court found the adoption of the defendant to be valid. A decree for Rs. 2,000/- was also prayed for as mesne profits.
( 2 ) IN the written statement filed by the defedant-ap-pellant it was admitted that his mothers father Lala Narain Dass was the uncle of Lala Madan Gopal. It was also admitted that on the death of Madan Gopal the plaintiff and the defendant became the owner of the property left by laia Madan Gopal. The suit was contested mainly on the pleas that Lala Madan Gopal had adopted the defendant as the former inherited the entire property belonging to Lala Narain Dass, that the adoption of the defendant was valid both under the Mitakshara law as also under the custom prevailing among the Rastogi Banias, that the adoption having taken place on the 11th of may, 1940, and not on 21st May 1940, the suit was barred by limitation and that Lala Madan gopal having adopted the defendant in the presence of the plaintiff and after the adoption having married him with the consent of the plaintiff, the plaintiff was estopped from pleading that the adoption was invalid on this ground as also on the ground that after the death of Lala Madan gopal the plaintiff and the defendant executed a deed of gift in favour of Smt. Rajeshwari, the plaintiffs (laughter, in wmcn the defendant was described as the adopted son of Lala Madan gopal.
( 3 ) THE learned Civil Judge framed the following nine issues in the case:
"1. Did Madan Gopal deceased leave the movable property detailed in the list A of the plaint? If so, are items 6 to 8 and. 14 and 15 in the possession of the defendant? 2. Did Madan Gopal deceased leave movable property detailed in the list fifed with the written statement? 3. Was the defendant, adopted by Madan Gopal on 11th May, 1940, as alleged by the defendant? 4. Is the adoption of the defendant void as alleged by the plaintiff? If so, its effect? 5. Is the adoption of the defendant valid as alleged by the defendant. If not is the plaintiff barred from impeaching it by limitation? 6. Is there a custom of the adoption of sisters sons prevalent in the caste of Rastogis as alleged 7by the defendant In para 14 of his written- statement? 8. is the plaintiff entitled to any mesne profits? If so at what amount? 9. To what relief, if any, is the plaintiff entitled? Is plaintiff estopped from questi
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