Behari Lal Laha vs Kailas Chunder Laha and others

Ameer Ali, J.—The question involved in this case is of considerable importance, though it is strange that it should not have come before the Court until now. One Dwarka Nath Laha died many years ago leaving him surviving three sons, viz., the plaintiff Behari Lal Laha, Kailas Chundra Laha and Trailokho Nath Laha, the two latter are defendants in this suit. He also left him surviving a widow named Sreemutty Prosannomoyee Dassi who also is a defendant. He left some property, and the present suit is brought by Behari Lal Laha for partition of the same. The suit was originally instituted against Kailas Chunder Laha and Sreemulty Prosannomoyee Dassi The plaintiff appears to have left out Trailokho Nath Laha from the category of the defendants on the ground that he had been adopted by his uncle Hira Lal, and that consequently he had no interest in the properties regarding which partition was sought. Subsequently under an order of the Court, dated the 20th of June 1895, Trailakho was made a defendant. He did not file any written statement, but has appeared in this suit in person. His case is that he was never adopted, as alleged by the plaintiff, by Hira Lal Laha. The evidence as to adoption is no doubt meagre, but in the absence of any distinct evidence to contradict the statements of the witnesses called by the plaintiff, I may take it that it is established that same years after the death of Dwarka Nath Laha, the father, defendant Trailokho Nath Laha was taken in adoption by his uncle Hira Lal. The main question therefore for determination in the case is, what is the effect of that adoption ? Whether, as the plaintiff contends, the share or interest which had devolved on Trailakho Nath Laha had become divested by the fact of the adoption, or whether his adoption having taken place after the inheritance had come to him, he still retains that interest and is entitled to have his share declared in the present partition; for if he is not entitled to a share, the plaintiffs interest would be one-half in the estate after his mother''s death. If he still retains his share or interest, the share which the plaintiff would take would be only one third. Mr. Chakravarty on behalf of the defendants relied on the broad principle of the Hindu law that an estate once vested in a male owner is not divested subsequently, even on account of causes which disqualify him from inheritance.

Mr. Woodroffe on behalf of the plaintiff contended that adoption effects a complete separation from the natural family, and having regard to the general words in which the effect of such severance is described, it creates a divestment.

Now if one thing is clear in the Hindu law under the Dayabhaga to which the parties are subject, it seems to be this: that when property descends upon a male owner upon the death of the last full owner he takes therein a full and distinct interest, and that under no circumstance is there any abeyance of the rights of property.

In the case of Kalidas Das v. Krishan Chandra Das, 2 B.L.R., F.B. 103 Sir Barnes Peacock, the Chief Justice, states the principle which I have given in my language in terms which are explicit and leave little room for doubt as to the interest devolving upon a male who takes property by descent. He says:--" There is no case of which I am aware, in which according to the Hindu law as administered in Bengal, a male, who takes by descent takes anything less than a full and absolute estate, subject to charges for maintenance, &c.; or to show that he is not at liberty to alienate that estate by gift or sale. The cases of widows and sons adopted after the deaths of their adoptive fathers, were referred to in the course of argument, to show that an estate, less than a full and absolute estate, may be taken by inheritance, and that an estate vested by descent may be divested. But these cases are not analogous," and then he goes on to differentiate between the case of a widow succeeding to the estate of her husband on his dying without issue and the case of males taking by inheritance. He construes the passage to which reference was made relating to the succession of widow, and then goes on to add :-- " The case of a widow adopting a son after her husband''s death, and thereby divesting the estate which she took upon the death of her husband without issue, is one in which only her own estate is divested. There is no case in which an estate vested in a male heir by inheritance, can be divested by the adoption of a son by a widow after her husband''s death; and the case of a widow divesting her own estate by the adoption of a son, is not one from which inferences can be drawn by analogy as to the divesting of an estate once vested in a mail heir by inheritance."

Further on he defines what heritage is; He says:--" According to that laws," (namely the Hindu Law) "heritage is defined to be wealth in which property dependent on relation to the former owner arises on the demise of the owner,-- Dayabhaga, Chap. I, verse 5;" and again it is said in the same book. " Though the word '' heritage '' signifies by derivation ''which is given,'' it has been pointed out that the use of the word ''da'' is secondary or metaphorical, since the same consequence (as that of gift) is produced, namely, that of constituting another''s property after annulling the previous right, of a person who is dead, or gone into retirement or the like, Dayabhaga Chap. I, verse 4." "That inheritage property arises on the demise of the owner is also shewn by verse 12 of the same Chapter, when it is said, '' since it is the practice of people to call an estate their own, immediately on the demise of father or other predecessor, and the right of property is acknowledged to vest without partition in the case of an only son, the demise of the relative is the cause of property." " In verse 31 of the same Chapter, it is clear that mere demise is not exclusively meant for it intends also the estate of a person degraded, gone into retirement, and the like, by reason of the analogy, as occasioning extinction of the property."

If that which occasions an extinction of property is by reason of analogy included under the term demise, it seems to me to follow that by analogy a person incapable of inheritance, on account of blindness or the like, is so far as inheritance is concerned, in the same position as if he were not in existence, although, as far as maintenance is concerned, he and certain members of his family have a claim upon the heir, and thus it is that as regards inheritance though not as regards the obligation of maintenance, the son of that person may take by relationship derived through his father, in the same manner as if his father were dead. If, then, property by inheritance arises on the death of the former owner, and the property of the heir is created by annulling the previous right of the ancestor, how can property once descended to an heir be divested in favour of a nearer relative, not in existence at the time of the ancestor''s death, when the property of the ancestor was annulled, and the property of the heir created ?

In the same case passages are quoted by the learned Chief Justice from the Vyavastha Darpana which have an important bearing on the position of Trailokho Nath Laha in respect of his interest in the property left by his father:--"The existence (of the son) at the time of the father''s death alone constitutes the son''s title." "The meaning is that the existence of the son is the sole cause of heritable right to which the time of the father''s death is an aid." The phrase " the existence of the son at the time of the father''s death indicates also the foetal existence of an heir in the womb."

Mr. Justice Dwarka Nath Mitter was one of the judges who constituted the Full Bench and in a case (Kally Prosonno Ghose. v. Gokool Chunder Mitter ILR a Cal. 295) which arose on this side of the Court, that learned Judge sitting with Mr. Justice Pontifex applied the principles enunciated in the case of Kalidas Das v. Krishan Chandra Das 2 B.L.R. 103. F.B. and indicated exactly the position of a person occupying the status of Trailokho Nath Laha with respect to property acquired by descent. On p. 304 occurs this passage :--"When a person, therefore, succeeds to a property by right of inheritance under the Hindu Law, in the language of the Dayabhaga this consequence is produced, namely, that of constituting another''s property after annulling the previous right of a person who is dead or gone into retirement or the like. His right is, therefore, absolute, and carries with it all the natural incidents of ownership, unless otherwise controlled by any other express provision of the law. In the case of succession by females, we know there are such express provisions relating to the right of transfer by sale, gift, &c. But I am aware of no authority in Hindu Law books which supports the proposition that this right of ownership is subject to be destroyed by a person being brought into existence subsequently, a person who, if he had been in existence at the time when the succession opened out, would have been a preferable heir.--This is opposed to natural justice and all principles of the Hindu Law."

In 7 Cal. Series p. 178 there is a case Nilcomul Lahuri v. Jotendro Mohan Lahuri ILR 7 Cal. 178 which also has an important bearing on the point raised here. The passage to which I would refer occurs in p. 188:--"The general rule, that the right to succession is a right which vests immediately on the death of the owner of the property, and cannot under any circumstances remain in abeyance in expectation of the birth of a preferable heir not conceived at the time of the owner''s death, was declared by the late Sudder Dewani Adaulut in the case of Keshub Chunder Ghose v. Bishnu Prasad Bose S.D.A. 1860, p. 340, and since that date this ruling has been universally followed. The Privy Council recognize it in the case of Bhoobun Moyee v. Ram Kishore Acharj 10 Moo. I.A. 279, and declare the ordinary rule to be, that in no case can the estate of the heir of a deceased person vested in possession be defeated and divested in favour of a subsequently adopted one, unless the adoption is effected by the direct agency of the former heir with his or her express consent."

The case of Bhoobun Moyee v. Ram Kishore Acharj 10 Moo. I.A. 279 to which the learned Judges refer is reported in 10 M.I.A. 579.

In page 311 Lord Kingsdown in delivering the judgment of the Judicial Committee uses words which to my mind furnish a key to the whole decision. He says :--" The rule of Hindu law is that in the case of inheritance, the person to succeed must be the heir of the lawful heir." In that case, the ancestor died leaving a son and a widow. The son survived his father, and took the estate by inheritance, and upon his death without issue, his widow took the estate as his heir. Afterwards the widow of the father having a power to adopt, adopted a son who claimed the estate as heir in preference, to the widow of the deceased son. The Privy Council held, that the adopted son could not take in preference to the son''s widow. In speaking of the deceased son who, succeeded on his father''s death, and whose widow, the son subsequently adopted, claimed to displace, Lord Kingsdown said :--"In this case, Bhawani Kishore had attained an age which enabled him to perform, and it is to be presumed that he did perform, all the religious services which a son could perform for a father; he had succeeded to the ancestral property as heir; he had full power of disposition over it he might have alienated it; he might have adopted a son to succeed to it, if he had no male issue of his body; he could have defeated every intention which his father entertained with respect to the property."

Speaking also of the subsequent adoption His Lordship added :---" If Bhawani Kissore (the son who succeeded upon his father''s death) had died unmarried, his mother (i.e., the adopting widow of the father) would have been his heir; and the question of adoption would have stood on quite different grounds By exercising the power of adoption, she would have divested no estate but her own, and this would have brought the case within the ordinary rule, but 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."

That was a much stronger case than the present, but their Lordships held that an estate once vested in possession could not be divested.

Thus the general conclusion deducible from the authorities to which I have referred is that the property once vested in a male owner by right of descent cannot be divested and it lies upon the plaintiff who argues that divestment or forfeiture took place to establish that proposition by showing, to use Mr. Justice Dwarka Nath Mitter''s language, some express provision of the law. Forfeiture cannot be worked by implication or by analogy.

Mr. Woodroffe contended that the words which describe the effect of adoption are sufficiently wide to involve a case of forfeiture effectuated by an adoption after the death of the father. To use the language of their Lordships of the Judicial Committee, no text has been cited, no authority produced in support of a proposition to give effect to which would be consistent neither with justice nor with common sense.

If I were to hold on the words cited that they declare a forfeiture it would be tantamount to holding that an infant who has acquired a share, which undoubtedly he does upon the death of his father, forfeits that property which is his, by the conduct of somebody else, --conduct over which he has no control. To my mind it is a proposition to which I cannot give effect for a moment.

An examination however of the authorities to which reference has been made will amply show that they do not refer to a case where a claim to inheritance has developed into a right in certain property, in other words where the right has vested and the property is in the person who is entitled to it. They refer to claim, and there can be no doubt that under the Hindu law when an adoption takes place, the adopted son loses the right of claiming any share in the inheritance of his natural father and his natural relations. In Mayne''s Hindu Law paragraph 159 the words are as follows :--" By adoption the boy is completely removed from his natural family as regards all civil rights or obligations. He ceases to perform funeral ceremonies for those of his family for whom he would otherwise have offered oblations, and he loses all rights of inheritance as completely as if he had never been born."

That shows clearly what the author is referring to. A son given in adoption loses the right of inheritance. It does not show that he loses what he has already got. Similarly the passage referred to in the Dattaka Mimamsa Chap, 11, para. 6, which says :--" An adopted son must never claim to family and estate of his natural father," shows that it relates to a claim. If the relationship ceased before the right had accrued the son given in adoption to another family is precluded from claiming any share in the estate of his natural father between whom and himself all relationship had been severed.

The case referred to in Morley''s Digest, Vol. I, p. 23, indicates the same result. A passage was referred to from 2 Strange''s Hindu Law, p. 94, in which it was stated that "an adopted son was not liable for the debt of his natural father."

As I pointed out in the course of the argument, if a son went out of the family before the death of the father and took no interest in his assets, neither under the Hindu Law nor in Equity would he be liable for the debts for his father. But when property has descended on the sons, they take it subject to the liabilities of the father; their right is derived by inheritance and by the extinction of the right of the last owner. Partition does not create any right; it only indicates the mode of enjoyment.

I am dealing solely with the Dayabhaga law. The sons of Dwarka Nath Laha could have sought for and obtained partition before the adoption of Trailokho Nath. The passages referred to in argument from'' Norton''s leading cases do not carry the matter further. They say adoption causes a complete severance from the natural family. But it is established beyond question that it is from the time of the adoption that the adopted son becomes member of the adoptive family, and there is absolutely nothing to show that an adoption relates back to his birth and causes the extinction of all civil rights that have come into existence intermediately; that in fact adoption amounts to civil death.

Two cases were referred to by Mr. Woodroffe from the 18 Cal. Series, one in page 69 (Mondakini Dassi v. Adinath Dey ILR 18 Cal. 69,) and the other reported at p. 385 (Surendra Nandan v. Sailaja Kant Das ILR 18 Cal. 385,) in order to show that the general rule that an estate once vested is not liable to divestment is subject to exceptions. In the first case the facts so far as they are material for the present purpose are as follow.

A man died leaving two widows and the property came to them. One adopted a son without the consent of the other. The question was whether the son so adopted divested the interest of the widow who did not consent to the adoption.

There is nothing in that case which is in contradiction of the principle laid down by the Full Bench in the case of Kalidas Das v. Krishan Chundra Das 2 B.I.R.103,F.B., or by Mr. Justice Pontifex and Mr. Justice Mitter in the case of Nilcomul Lahuri v. Jotendro Mohun Lahuri ILR 7 Cal.

Mr. Justice Banerjee who delivered the judgment in that case referred with approval to a passage in Mayne''s Hindu Law, viz.,--"That a son adopted to the last male proprietor, who was the full owner of an estate, is entitled to take the whole of that estate and to divest the interest of any persons in that estate if a title by inheritance is inferior to his, and who could not have inherited if the adoption had taken place before the death of the last full owner, though he is not entitled to claim as preferential heir the estate of any other person besides his adoptive father, when such estate has vested before his adoption in some heir other than the widow who adopted him."

That principle runs on exactly parallel lines with those laid down in the Full Bench Cases.

It shows that when a right comes into existence after the death of the last owner--a right which is of a superior character to that taken by persons who take intermediately, that right divests the inferior right. The case in p. 385 was cited in support of the proposition that even when an estate vests in a male it may become divested under certain circumstances. In that case which was one under the Mitakshara law, it (sic) that where the entire property had vested in one brother upon the (sic) of another brother, the interest of the lalter was divested by the adoption of a son to the deceased.

For the purpose of the present decision it is not necessary for me to consider, whether the view taken by the learned Judges in that case, accords with the principles upon which they purported to proceed or whether I should follow it in all respects.

Speaking with all respect, had it been necessary for me to go into that question I should have felt it my duty to seek the opinion of a Full Bench. But I am relieved from that necessity by the fact that the case referred to has no analogy to the present case. The general conclusion, therefore at which I arrive, is that the interest which was once vested in a son upon the death of a father in a Dayabhaga family, is not divested by his subsequent adoption into another family. Perhaps it may be some satisfaction to the parties to know, especially if they desire to carry the case further, that 1 enquired of one of the Judges of this Court, an unquestionable authority in Hindu law, whether there was anything in the original works bearing on the question, and he was good enough to tell me there was none, and that the view which I had formed was consistent with reason and common sense The learned Judge to whom I refer is Mr. Justice Banerjee. In that view, therefore, I make this declaration that the plaintiff and the defendants are entitled to one-third each absolutely, and to one-fourth share during the lifetime of their mother, and there will be the usual partition decree.