JUDGMENT
Stanley Batchelor, Kt., Acting C.J.
1. The suit out of which this appeal arises was brought for a declaration that the alleged adoption of the 1st defendant by the 2nd defendant Yamunabai was invalid, and for an injunction restraining the 1st defendant from using the name of the alleged adoptive father Amrit. The genealogy is given at the beginning of the trial Court’s judgment. Amrit, the husband of Yamunabai, died in 1903. In December 1911, his widow gave birth to a child, the offspring of adultery, as the lower Courts have hold. On the 15th June 1911, the adoption of the 1st defendant by Yamunabai was made. The plaintiff, who is a daughter of Yamunabai, objects to the adoption that inasmuch as the adopting widow was unchaste at the time of the adoption, the adoption is invalid. In the Court of trial the plaintiff’s suit was dismissed, that order being made by reason of the trial Court’s finding upon the first two issues, namely, that the plaintiff was not entitled to bring this suit, and that the adoption was invalid by reason of the widow’s unchastity.
2. When the case was taken in appeal to the First Class Subordinate Judge, he agreed that the adoption was invalid by reason of the widow’s unchastity, but he held that the plaintiff’s suit was component, even though the plaintiff’s father Amrit died in union with his family. The learned Judge, therefore, reversed the trial Court’s decree, and gave the plaintiff a declaration that the 1st defendant’s adoption was invalid. He granted also an injunction as prayed by the plaintiff.
3. From this decree the 1st defendant brings the present appeal. The first, and indeed the only substantial, point, which falls to be decided, is whether, on the assumption that Amrit died in union with his family, the plaintiff is competent to bring this suit. The plaintiff” on this assumption is an unmarried daughter in an undivided family. The learned Judge below in deciding in favour of the plaintiff’s competence has based himself upon Sir Michael Westropp’s decision in Kalova horn Bhujangrav v. Padapa valad Bhujangrav (1876) I.L.R. 1 Bom. 248, 251 where the Chief Justice observed that “independently of any claim to the property of Bhujangrav, we think that a suit to set aside the adoption of Balapa would lie for the plaintiff; if he be the son of Bhujangrav, inasmuch as, if the claim of the plaintiff to the property were, as against Kalova, barred by lapse of time, and the plaintiff bring, as he has done, his suit to set aside the adoption within time against Balapa, the plaintiff would be entitled to obtain an injunction against any intervention of Balapa in performing the Shradh or other ceremonies for the benefit of Bhujangrav, or assuming the status of adopted son of Bhujangrav. The Legislature seems distinctly to have recognized the right of a person to bring a suit to set aside an adoption as a substantive proceeding, independent of any claim to property, and to have fixed a special Court fee for such a suit (Act VII of 1870, Schedule II, Article 17, clause V); and in the new Limitation Act (IX of 1871), Article 129, the right to bring such a suit has since been again distinctly recognized.
4. The learned First Class Subordinate Judge points out that this decision was followed in Ramchandra v. Narayan (1903) I.L.R. 27 Bom. 614 : 5 Bom L.R. 583. But in this latter case, the learned Judges go no further than to lay down that at the time an earlier adoption was made the plaintiffs, since they filled the character of presumptive reversioners, were entitled to sue to set aside the adoptionl Clearly the decision in Ramchandra’s case carries matters no further than the point at which they were left by Sir Michael Westropp. Indeed the case falls short of Sir Michael Westropp’s decision, inasmuch as it ia held that, at the material time, the plaintiffs were presumptive reversioners, and as such were unquestionably entitled to contest the adoption. The more general language used by Sir Michael Westropp was used in 1876, and in the following year, the Legislature enacted the Specific Relief Act, I of 1877, by Section 42 of which suits for declaratory decrees are now regulated. That section provides that a suit for a declaration may be brought by a person entitled either to any legal character, or to any right as to any property, in certain circumstances defined in the section. Now it is not pretended that in this case the plaintiff is a person entitled to any legal character, nor can it be pretended, on the assumption we are now making as to the unity of the family, that she is a person entitled to any right as to any property. She has indeed no legal position in regard to the family property beyond that she is entitled to be maintained out of it, and to have her marriage expenses paid from it. It appears to me, therefore, clear that she is not such a person as, under Section 42 of the Specific Relief Act, can maintain a suit for a declaration. In support of this opinion, I may refer to the Court’s decision in Anyaba v. Daji (1895) I.L.R. 20 Bom 202. That was a suit for a declaration that the defendant was not an adopted son, and the question was whether it was maintainable under Section 42 of the Specific Relief Act. The plaintiffs were distant Bhaubands, and not reversionary heirs, and it was held that in that capacity they were not entitled to sue. The decision followed Rani Anund Koer v. The Court of Warda (1880) L.R. 8 I.A. 14, 22, where Sir Robert Collier in delivering the judgment of the Judicial Committee said :-
Their Lordships are of opinion that although a suit of this nature (that is a suit to set aside an adoption) may be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed if the widow were to die at that moment…It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships’ opinion, be limited.
5. Here it is clear that the plaintiff is not either a contingent or presumptive reversioner, and her suit, therefore, scorns to mo to be incompetent on the assumption that her father died in union with the family. This matter of fact, however, has not been cleared up in the judgment of the learned Judge below, because he merely assumed that the father remained joint. We must, therefore, call upon the Judge to examine the evidence upon the record, and to return n, finding whether in fact the plaintiff’s father died in union with, or divided from, the rest of the family. Finding to be returned within two months. No fresh evidence to be taken. At the same time it will be well for the learned Judge to consider and decide also whether on the assumption that the plaintiff’s father died divided from the rest of the family, the appeal is now maintainable. Costs costs in the appeal.
Kemp, J.
6. I agree that there should be a remand on that point.
