Judgement

Law. Rep. 19 Ind. App. 101 ( 1891- 1892) Bireswar Mookerji V. Ardha Chunder Roy Chowdhry

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TWO appeals from a decree of the High Court (May 21, 1886), which substantially affirmed a decree of the Subordinate Judge of the 24 Pergunnahs (Jan. 9, 1884).

The litigation related to the property of a family claiming descent from one Gouri Churn Chowdhry, who died in the Bengali year 1207 (1800-1 A.D.).

The facts are stated in the judgment of their Lordships.

There were two suits, one of which was brought by Gobind-Mohini Debi, and the other by Ardha Chunder Roy Chowdhry for the purpose of ascertaining the rights of the parties in the property in suit and consequential relief.

Gouri Churns estate vested, in the events which had hap pened, in the representatives of four of his sons. The main questions in the appeal related to the rights, inter se, of the descendants of two out of these four sons, viz., Prankrishna and Radha Krishna. Those questions were, first, as to the validity of the adoption of Ardha Chunder, one of Radha Krishnas two sons, by Juggut Chunder, a son of Prankrishna; second, in case of the invalidity of such adoption, whether he took, in addition to a moiety of his natural fathers estate by inheritance, certain rights by bequest as a persona designata under Juggut Chunders will; third, whether in that case he was put to his election.

Both Courts below found as a fact that there had been no gift and acceptance, and that the alleged adoption was invalid. With regard to the construction of Juggut Chunders will the Subordinate Judge was of opinion that the testator intended an absolute gift in favour of Ardha Chunder, and not that it should be contingent on his being an adopted son; but that the absolute estate so granted was, "defeasible in the contingency of his not leaving a male issue at the time of his death," but that the latter question might be left for final determination till the happening of that contingency.

The result was that the Subordinate Judge, by his decree, declared the adoption of Ardha Chunder by Juggut Chunder invalid, and that he was therefore entitled, by right of inheritance, to half of Radha Krishnas estate, and was further entitled, under the will of Juggut Chunder, to the share specified therein subject to the terms thereof.

The High Court concurred with the first Court, and held that Ardha Chunder, though not validly adopted, took an absolute estate of inheritance under the will of Juggut Chunder, as a designated person, but that the absolute estate thereby given was defeasible upon his dying without leaving a son, which the High Court construed to mean a male descendant in the male line.

Cowie, Q.C., and Branson, for the Appellants in the first appeal, the grandsons of Juggut Chunder, contended that as Ardha Chunder’s adoption was found to be invalid, his interest was limited to that which he derived by inheritance as one of the sons of Radha Krishna. He took nothing by inheritance from Juggut Chunder, and under the will of the last named it ought to have been held that he took nothing, for on its true construction the gift was to him as adopted son, and that as he did not answer that description the gift failed. The High Court relied upon the authority of Nidhoomoni Debya v. Saroda Per shad Mookerjee (Law Rep. 3 Ind. Ap. 253.). It was contended that that case ought to be distinguished in favour of the Appellants as in Fanindra Deb Raikat v. Rajeswar Dass (Law Rep. 12 Ind. Ap. 72.).

C. W. Arathoon, for the Appellant Shib Chunder, contended that Ardha Chunder}s adoption was not invalidated. There had been a sufficient gift and acceptance before the ceremonies and during the lifetime of Radha Krishna. There was evidence of an acknowledgment of gift by Radha Krishna at the

Law. Rep. 19 Ind. App. 101 ( 1891- 1892) Bireswar Mookerji V. Ardha Chunder Roy Chowdhry

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date of his death, which shews that he considered that he had made it effectively. There was evidence also that Juggut Chunder and others of the family had treated Ardha Chunder as an adopted son, that he was brought up as such, and that Juggut Chunders will recited the gift. Having regard to the circumstance that this was the adoption within a joint family by one brother of another brothers son, the evidence of gift and acceptance was sufficient. He referred to Venkata v. Subhadra (Ind. L. R. 7 Madras, 548.); Atmaram v. Madho Rao (Ind. L. R. 6 Allah. 276.). Further, the bequest of Juggut Chunders property to Ardha Chunder s son was made on the understanding as expressed in the will that Radha Krishna s share " had been obtained by Shib Chunder." That condition was violated if Ardha Chunder took a moiety of Radha Krishna s estate. He ought, therefore, to be put to his election see Codrington v. Codrington (Law Rep. 7 H. L. 854.).

Sir H. Davey, Q.C., Doyne, and Mayne, for the Respondent, Ardha Chunder.

Cowell, for the Respondents, Gobind Mohini, and Bama Soondari.

1892. March 5. The judgment of their Lordships was delivered by

SIR RICHARD COUCH —

The first three Appellants in the first of these appeals— Bireswar Mookerji, Sureswar Mookerji, and Shib Pershab Banerji— are the grandsons of Juggut Chunder Roy Chowdhry, who died on the 19th of October, 1869. He left two daughters, one, Heman-gini, the mother of the first two grandsons, and the other, Ushamoyi, the mother of the third. The other two Appellants are the daughters husbands and guardians of their sons. The Respondents, Ardha Chunder and Shib Chunder, are the sons of Radha Krishna, an uncle of Juggut Chunder, who died in August 1865. The third Respondent, Bama Soondari, is the widow of Tejas Chunder, the son of Gopi Krishna, another uncle of Juggut Chunder, and the Respondent Gobind Mohini is the widow of Sri Krishna, another uncle. Fran Krishna, the father of Juggut Chunder, Gopi Krishna, Radha Krishna, and Sri Krishna were four of the sons of Joygopal Roy, who died in 1826-27. He left three other sons who all died before Juggut Chunder, and their shares in his property became vested in the four sons above named.

One of the suits, which are the subjects of the first of these appeals, was brought by Ardha Chunder against Shib Chunder and the other persons who are parties to the appeal, and also against Kadumbini, the widow of Juggut Chunder, and Horendra, his granddaughter, the sister of Bireswar and Sureswar.

The plaint stated that Juggut Chunder adopted the Plaintiff Ardha Chunder as his son in the year 1273—April 1866 to April 1867—and made a will on the 13th Bhadro 1275—27th August, 1868, by which, after giving legacies and monthly stipends to some persons, he bequeathed all his remaining properties moveable and immoveable to the Plaintiff. The plaint also stated that, as one of the sons of Radha Krishna, Ardha Chunder was entitled to 8/60th parts, and as devisee under Juggut Chunder s will to 19/60 th parts, in all to 27/60th parts of the joint estate, and it prayed that the will of Juggut Chunder might be construed, and a declaration made as to what provisions in it are valid, and of (the rights of the Plaintiff and Defendants in the estate left by Juggut Chunder. It also prayed that the questions whether the Plaintiff being the son of Radha Krishna was entitled to a moiety of the share of the estate left by him, and whether the Plaintiff was the legally adopted son of Juggut Chunder, might be determined. Other consequent declarations and directions were asked for, but they need not be stated. At the settlement of issues ten were recorded, bat of these only the fourth and fifth have to be considered in this appeal. The fourth is, " Is it a fact that Plaintiff is the legally dattak (adopted) son of Juggut Chunder ? " The fifth is, " Has Plaintiff any interest under the will of Juggut Chunder ? If so, what is the nature of that interest ? "

Law. Rep. 19 Ind. App. 101 ( 1891- 1892) Bireswar Mookerji V. Ardha Chunder Roy Chowdhry

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At the hearing before their Lordships the learned counsel for Ardha Chunder did not rely upon the adoption. It was contrary to Ardha, Chunder s interest to do so, as Shib Chunder, his natural brother, in his written statement, alleged that Ardha Chunder being the legally adopted son of Juggut Chunder had no right and share in the estate left by his natural father Radha Krishna. It was contended by Mr. Arathoon, who appeared for Shib Chunder, that the adoption was valid, and this question had better be first determined.

The Subordinate Judge, after observing in his judgment upon the evidence of what took place before the death of Radha Krishna, and afterwards when Juggut Chunder performed a grand ceremony of adoption, held that the adoption was invalid, on the ground that there was no giving and taking. The High Court on appeal, after also observing fully upon the evidence, came to the conclusion that there was no gift and acceptance in Radha Krishnas lifetime, and no giver, in a legal sense at any rate (his widow being mentally incapable), when the ceremony-was performed. Their Lordships see no reason to depart from the ordinary rule where there are concurrent findings of fact, and therefore decide that there was no adoption.

Mr. Arathoon also contended that in this case Ardha Chunder should be put to his election, relying on the following passage in Juggut Chunder s will " And the share of annas 4-5-1-1 which the late Radha Krishna Roy Chowdhry had in the same way, has been obtained by his son, Shib Chunder Roy Chowdhry." This occurs in a paragraph of the will, in which the testator states the devolution of the property of his paternal grandfather. No case of election arises here. The testator had no power to dispose of Radha Krishnas share, and did not intend to do so.

There remains the question of the effect of the will. Clause 4, which contains the bequest to Ardha Chunder, begins " Having no son, I loved and supported Ardha Chunder Roy Chowdhry, the youngest son of the late Radha Krishna Roy Chowdhry, as my son. And as the said Roy was very attached to me and my wife, and was an object of affection to us, I had a mind, granting to my daughters and daughters sons a proper portion of my share of the ancestral property and self-acquired property, to give the remainder of the moveable and immoveable property to the said Roy. Since then I have taken the said Roy in adoption in virtue of the consent and gift of his father and mother, after getting the vyavasthas (opinions) of pundits, and on performing the ceremony of jag according to the Shastras." Here is a clear indication of his intention, before making an adoption, to give the greater portion of his property to Ardha Chunder. He did not select him as being an adopted son, but for reasons independent of adoption, though they were likely to lead to it. The clause then continues, " Therefore, the said dear Roy Ardha Chunder will be the heir to the whole of my moveable and immoveable property." It states the legal effect of the adoption— viz., that Ardha Chunder would take the whole of his property, subject only to such duties of the maintenance of other persons as the law imposed. But this would not have been consistent with the testators intention, and he proceeds to say " But I direct that, excepting the property granted by me as stated in paragraph 11 of this will, the said Sriman Ardha Chunder Roy Chowdhry, and after him his son, and after him his grandson, and on the death of the latter, his great grandson shall obtain the proper share, ancestral, of my father, the late Pran Krishna, and the 4-annas share out of the proper share of my uncle, the late Sri Krishna Roy Chowdhry, obtained by me by gift under his will, and the self-acquired moveable and immoveable property of me and my father which will be left. If, through my misfortune, the said Roy die without leaving a son, which God forbid, then I give permission to my wife Kadumbini that she may, for the purpose of providing for the presentation of funeral cakes and libations, take in adoption two sons in succession, one on the death of the other, from one of my paternal cousins who may have sons." And there is a direction that if no son be had of his paternal cousins all his daughters sons shall be in equal shares entitled to his paternal and self-acquired property.

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It will be observed that he says, " the said Roy die without leaving a son," not "said adopted son," or "my adopted son," The bequest is to Ardha Chunder by name, and is not dependent upon the adoption. Both the Lower Courts have so decided, and their Lordships are of opinion that their decision should be affirmed.

As to the second appeal, in which Shib Chunder is the Appellant, it was admitted by his learned counsel that, so far as it relates to the share of Sri Krishna Roy Chowdhry, it could not be supported, and should be dismissed. The other questions in it are raised in the first appeal and decided by the above judgment. Their Lordships will therefore humbly advise Her Majesty to dismiss both appeals, and to affirm the decree of the High Court made in the appeals to it. The Appellants will pay the costs of these appeals.