Shama Churn Chowdhry vs Drobomoyee Chowdhrain And Ors. on 13 May, 1885

Calcutta High Court
Shama Churn Chowdhry vs Drobomoyee Chowdhrain And Ors. on 13 May, 1885
Equivalent citations: (1885) ILR 12 Cal 246
Author: Field
Bench: Field, Grant


Field, J.

1. The plaintiff in this case is ah adopted son and is still a minor. He sues to recover possession of certain lands which he alleges to be a portion of an estate which belonged to Uma Churn, his adopted father. The only point with which we have to deal upon this appeal is, whether the minor has a good title as adopted son. All the questions of fact have been found in his favour by the Courts below; and there is now no question as to these facts before us.

2. Uma Churn had three wives; with one of these ladies we have no concern. The two wives with whom we are concerned are Nobo Sundari and Gaya Sundari. Gaya Sundari was the mother of Hur Cumar, and Hur Cumar, upon Uma Churn’s death, succeeded to his property. Hur Cumar died unmarried and during minority; and his mother Gaya Sundari died before him. Upon Hur Cumar’s deaths Gaya Sundari’s co-wife, Nobo Sundari, in the exercise of an anumatipotro, or power of adoption granted to her by Uma Churn, adopted the present plaintiff.

3. It has been contended before us on the part of the appellant that, inasmuch as upon Hur Cumar’s death, his grandmother Surjomoni, mother of Uma Churn, was his heiress, the property vested in her as such; that the subsequent adoption of Shama Churn by Nobo Sundari could not have the effect of divesting the inheritance which had once vested; and that therefore Shama Churn has no title to the property by virtue of which he can maintain this suit. This argument is based upon the decision of the Privy Council in the case of Bhoobun Moyi Debi v. Ram Kishore Acharji 10 Moore’s I.A. 279 and the subsequent case decided by this Court–Kally Prosonno Ghose v. Gocool Chandra Mitter I.L.R. 2 Cal. 295. See also the case of Nil Komul Lahuri v. Jotendro Mohan Lahuri I.L.R. 7 Cal. 178. In none of these cases did the exact point which has been raised before us occur. But this very point did occur in another case which was not quoted in the course of the argument, the case of Annammah v. Mabbu Bali Reddy 8 Mad. H.C. 108. We entertain no doubt that upon the authorities the decision of the bare question of Hindu law would be fatal to the success of the plaintiff’s case if it had to be decided upon this bare question alone. The adoption by Nobo Sundari having taken place after the estate had vested in Surjomoni upon the death of Hur Cumar, the subsequent adoption could not have the effect of divesting the estate once so vested. But it is said that ‘ there is something more than the anumatipotro, that the case is to be decided not upon the anumatipotro alone, but upon the anumatipotro taken with a will made by Uma Churn, probate of which will has since been granted. In the case of Bhoobun Moyi Debi v. Bam Kishore Acharji 10 Moore’s I.A. 279 their Lordships of the Privy Council observed that they were dealing with an anumatipotro only and without reference to any testamentary disposition, or the possible effect of such a disposition. They said: “Whether under his testamentry power of disposition Gour Kishore could have restricted the interest of Bhowanee Kishore in his estate to a life interest, or could have limited it over (if his son left no issue male, or such issue male failed) to an adopted son of his own, it is not necessary to consider; it is sufficient to say that he has neither done nor attempted to do this; “and then further on” No case has been produced, no decision has been cited from the Text Books, and no principle has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated and divested.” But it is contended that upon the true construction of this will, the testator did not intend to make any provision for the event which had actually taken place. The clause of the will runs to this effect: “If my existing son, i.e., Hur Cumar, should die, and if no son of my loins should be born, then my wives, in the exercise of the power of adoption given to each of them for adopting three sons each, shall adopt sons, and such sons shall take the estate.” It is argued that the testator was speaking with reference only to the state of things at the time of his death; and that what was in his mind was the event of the Vartamana Putra existing son, dying during his lifetime, not being in existence at the time of his death: and that he did not contemplate the event which has actually happened, i.e., the case of this son dying after his death. We have to observe that it is sought to raise this question, not between rival claimants to the inheritance, but between a stranger and a person who is in possession of that inheritance, having succeeded thereto with the consent and acquiescence of Surjomoni, the only person who would be entitled to maintain a construction of the will adverse to the present plaintiff’s title. We think that a stranger has no right in this way to seek out a flaw in the plaintiff’s title and impugn the validity of that title.

4. There is evidence in the case to show that Surjomoni has acquiesced in the plaintiff’s title; she acted as his guardian in bringing the present suit; and at her instance the minor’s name was registered under the Land Registration Act. According to a possible and probable construction, the will has given the inheritance to the plaintiff, and we think that a stranger is not entitled to come in and say that under another construction, not set up by the person who would benefit thereby, that person and not the plaintiff is the rightful owner. We are, therefore, of opinion that this appeal must be dismissed with costs.

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