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IN THE HIGH COURT OF ALLAHABAD
H.N. SETH, J.
Mrs. Ethal Walters - Appellant
Versus
Ajit Datt and Others - Respondent
Testamentary Suit No. 1 of 1983 out of Testamentary Case No. 7 of 1981
Decided On : 08-07-1985
TESTAMENTARY SUIT - SUCCESSION - INDIAN SUCCESSION ACT, 1925 - SECTION 210, 219, 29, 32, 33, 34, 37, 47 - PUNJAB LAWS ACT, 1872 - SECTION 5 - NORTH WEST PROVINCE REGULATION, 1901 - SECTION 27 - BENGAL, AGRA AND ASSAM CIVIL COURTS ACT, 1887 - SECTION 37 - CUSTOM OF ADOPTION - CHRISTIAN LAW - ADOPTION OF CHILD FOR BEING BROUGHT UP AS SON - LINEAL CONSANGUINITY - KINDRED - SUCCESSION TO PROPERTY OF INTESTATE - RIGHT TO LETTERS OF ADMINISTRATION.
Fact of the Case:
The deceased Smt. Maud Flora Datt died issueless and intestate at Allahabad on 5-12-1980. Smt. Ethel Walters, sister of the deceased, presented a petition for the grant of Letters of Administration in respect of the estate of the deceased. Sri Ajit Datt, son of Sri E.E. Datt's brother Archibal Datt, claiming himself to be the adopted son of Smt. Maud Datt and her husband E.E. Datt, filed a suit in the Court of Munslf ChaiJ, Allahabad praying for a mandatory injunction restraining the Defendants of that suit from changing or altering the shape of one of the properties comprised in the estate of the deceased, Smt. Maud Datt. Smt. Ethel Walters asserted that the alleged adoption of Ajit Datt by E.E. Datt and Smt. Maud Datt is absolutely invalid, and that she being the next of the kin of the deceased, is entitled to maintain the petition for the relief claimed by her.
Finding of the Court:
1. The right to obtain Letters of Administration of the estate left by Smt. Maud Datt is governed by Section 210 of the Indian Succession Act. 2. Succession to an Indian Christian dying intestate is governed by the provisions contained in the Indian Succession Act, and not by any custom prevailing in the family to which the deceased belonged. 3. The expression "any other law for the time being in force" used in Section 29(2) of the Indian Succession Act embraces not only statutory law but also the customary law applicable to concerned parties. 4. The provisions of Section 5 of the Punjab Laws Act (Act 4 of 1872) and the provisions of Section 27 of the North West Province Regulations (7 of 1901) do not regulate the proceedings in civil courts now lying within the territorial limits of the State of Uttar Pradesh. 5. Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 does not permit the civil courts in this State to base their decisions on the basis of any custom prevailing amongst Indian Christians except in so far as those customs may be looked into for determining the rule of justice, equity and good conscience in causes which the courts in the State are required to decide in accordance with such rule. 6. A person, who has been adopted by the deceased for being brought up as a eon, is not entitled to the property of the deceased under the provisions of the Indian Succession Act, 1925. 7. The word children in Section 37 of the Act will not cover the case of an adopted child who cannot be described as lineal descendant of the person adopting him. 8. The ancestors of Sri E.E. Datt were Hindus who haled from Punjab. They were in the matter of succession governed by the Mitakshara School of Hindu Law. After their conversion to Christianity, they, in the matter of succession, continued to be governed by the same rule. 9. It is not open to Ajit Datt to claim that despite conversion to Christianity, the family of Sri E.E. Datt's ancestors continued to be, in the matter of adoption and succession, governed by the Hindu Law, that is, the law which prior to its conversion to Christianity was applicable to the family. 10. The observations made by the Privy Council in the case of Abraham v. Abraham (9 LIA) were made in the context where there was no law governing the rights over the property of a Hindu becoming a convert to Christianity and the matter had to be decided as provided by the regulations in accordance with the principles of justice, equity and good conscience. 11. Inasmuch as the succession to the property of a person whose ancestors had embraced Christianity is governed by the provisions contained in the Indian Succession Act, 1925, there is no further scope for applying the principles in Abraham's case to the facts of this case on the ground of justice, equity and good conscience. 12. Amongst Christians, adoption was not a recognised institution in the sense in which it was understood and recognised amongst Hindus aid Hindu Law. 13. In the instant case, Sri Ajit Datt has failed to establish any custom prevailing either in the family to which Sri E.E. Datt belonged, countenancing adoption and like Hindus giving to the adopted child the status of a real child entitling him to succeed to the property of the persons adopting him.
Issues: 1. Whether Sri Ajit Datt was adopted by Sri E.E. Datt under the Christian Law? 2. Whether Sri Ajit Datt subsequently renounced his alleged adoption? 3. Whether any person through adoption under Christian law can claim to be the heir of the deceased? 4. To what relief is the Plaintiff entitled?
Ratio Decidendi: 1. The right to obtain Letters of Administration of the estate left by Smt. Maud Datt is governed by Section 210 of the Indian Succession Act. 2. Succession to an Indian Christian dying intestate is governed by the provisions contained in the Indian Succession Act, and not by any custom prevailing in the family to which the deceased belonged. 3. The expression "any other law for the time being in force" used in Section 29(2) of the Indian Succession Act embraces not only statutory law but also the customary law applicable to concerned parties. 4. The provisions of Section 5 of the Punjab Laws Act (Act 4 of 1872) and the provisions of Section 27 of the North West Province Regulations (7 of 1901) do not regulate the proceedings in civil courts now lying within the territorial limits of the State of Uttar Pradesh. 5. Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 does not permit the civil courts in this State to base their decisions on the basis of any custom prevailing amongst Indian Christians except in so far as those customs may be looked into for determining the rule of justice, equity and good conscience in causes which the courts in the State are required to decide in accordance with such rule. 6. A person, who has been adopted by the deceased for being brought up as a eon, is not entitled to the property of the deceased under the provisions of the Indian Succession Act, 1925. 7. The word children in Section 37 of the Act will not cover the case of an adopted child who cannot be described as lineal descendant of the person adopting him. 8. It is not open to Ajit Datt to claim that despite conversion to Christianity, the family of Sri E.E. Datt's ancestors continued to be, in the matter of adoption and succession, governed by the Hindu Law, that is, the law which prior to its conversion to Christianity was applicable to the family. 9. The observations made by the Privy Council in the case of Abraham v. Abraham (9 LIA) were made in the context where there was no law governing the rights over the property of a Hindu becoming a convert to Christianity and the matter had to be decided as provided by the regulations in accordance with the principles of justice, equity and good conscience. 10. Inasmuch as the succession to the property of a person whose ancestors had embraced Christianity is governed by the provisions contained in the Indian Succession Act, 1925, there is no further scope for applying the principles in Abraham's case to the facts of this case on the ground of justice, equity and good conscience. 11. Amongst Christians, adoption was not a recognised institution in the sense in which it was understood and recognised amongst Hindus aid Hindu Law. 12. In the instant case, Sri Ajit Datt has failed to establish any custom prevailing either in the family to which Sri E.E. Datt belonged, countenancing adoption and like Hindus giving to the adopted child the status of a real child entitling him to succeed to the property of the persons adopting him.
Final Decision: The petition, therefore, succeeds and is allowed, but the requisite orders entitling the Petitioner to the Letters of Administration prayed for by her shall be made only after she has filed the requisite court fee as also estate duty clearance certificate as required by the Rules. Parties to bear their own costs.
H.N. SETH, J.
1. Controversy in this testamentary suit concerns the estate of late Smt. Maud Flora Datt wife of late Sri E.E. Datt, who died issueless and intestate at Allahabad on 5-12-1980.
2. On May 5, 1981 Smt. Ethel Walters, sister of the deceased Smt. Maud Flora Datt (hereinafter described as Maud Datt) presented a petition (Testamentary Case No. 7 of J 981) before this Court praying for the grant of Letters of Administration in respect of the estate of the deceased, specified in Annexure-1 to the petition. According to her, Smt. Maud Datt had, apart from the Petitioner, left behind three brothers, two real and two half sisters as her next of kins. She came to know that Sri Ajit Datt, son of Sri E.E. Datt's brother Archibal Datt, had, claiming himself to be the adopted son of Smt. Maud Datt and her husband E.E. Datt, filed a suit in the Court of Munslf ChaiJ, Allahabad (Suit No. 898 of 1980)(Ajit Datt v. Snail Sirdar) praying for a mandatory injunction restraining the Defendants of that suit from changing or altering the shape of one of the properties comprised in the estate of the deceased, Smt. Maud Datt. According to the Petitioner there is no provision for adoption either in the Christian Law or in the Indian Succession Act and the alleged adoption of Ajit Datt by E.E. Datt and Smt. Maud Datt is absolutely invalid, and that she being the next of the kin of the deceased, is entitled to maintain the petition for the relief claimed by her. The Petitioner also requested that notice of the petition be issued not only to the next of the kins named by her but also to four others including Sri Ajit Datt who, according to her were, in the circumstances of the case, proper parties in these proceedings.
3. Smt. Asba Sircar, described in the petition as one of the proper parties, filed a counter affidavit (paper No. A-6) accepting the claim of the Petitioner. She, however, claimed that one of the properties mentioned in Annexure-1 to the petition, namely, the Fixed Deposit Receipt No. (?) for a sum of Rs. 10,000/-, was held jointly by her and Smt. Maud Datt; the amount due under that receipt was payable to either of them or to the survivor. According to her, said property belonged to her and could not be made the subject matter of these testamentary proceedings.
4. Sri Ajit Datt put in a caveat and also filed a counter affidavit (paper No. A-8). In that affidavit he contended that soon after his birth he was adopted by and baptised as the son of Sri E.E. Datt and Smt. Maud Datt in accordance with the custom of adoption prevailing amongst Indian Christians and in the family of late Sri E.E. Datt and Smt. Maud Datt. He contended that the said custom is not contrary to the principles of Christianity. In paragraph 11 of his objections Ajit Datt went on to assert that his grandfather late Rai Saheb Jeewan Datt owned considerable property and the family had a custom whereby succession was in accordance with the Hindu Law and daughter got no share in their father's property. His ancestors were originally Hindus residents of undivided Punjab and were governed by Mitak-sbara School of Hindu law and the law and custom both recognised adoption of male child. The family, after conversion, carried along with them their ancestral customary law in the secular aspects and the conversion to Christianity merely resulted in change in mode of worship. He, therefore, contended that in his presence, that is in the presence of the son of Smt. Maud Datt, the Petitioner who is merely her sister, is not entitled to take out the Letters of Administration in respect of the estate left by the deceased.
5. In her rejoinder affidavit (paper No. A-10) Petitioner E. Walters asserted that the law of the country does not recognise any notion of adoption amongst Christians. She denied that any such custom of adoption existed either amongst Indian Christians or in the family of late Sri E.E. Datt. According to her, Sri Ajit Datt was, never adopted by Sri E.E.
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