Bijai Shankar and Another vs Kali Das

Sir John Edge, Kt., C.J. and Tyrrell, J.—This appeal has been brought by one of the defendants in a suit which was for recovery of money due under notes of hand given by one Musammat Sri Matia Matangini Debia. She was the widow of one Babu Ishan Chandar Mukarji, and after his death she executed, on the 24th February 1878, a deed of adoption which, so far as is material, was as follows:--

I, Sri Matia Matangini Debia, widow and heir of Babu Ishan Chandar Mukarji, son of Babu Tarni Charan Mukarji, ra�s of the city of Koel, do hereby declare that my husband, Babu Ishan Chandar, on account of his being childless, had a desire to adopt some one for the perpetuation of his name and performance of religious ceremonies, and accordingly had it distinctly recorded in the wajib-ul-arz of each of his zam�nd�ri villages, that he, and after his death his wife, had authority to adopt (a son); that he had selected to adopt Kali Das, son of his own brother Santi Chandar; that the time for performing the ceremonies of adoption had not yet arrived, when he fell ill, and then he executed a will in the Bengali character under his own signature authorising me to adopt, and made it over to me; that in execution of the will of my husband I have also selected the same lad as was chosen by my husband, and have accordingly adopted to-day the abovenamed lad in the presence of the members of the brotherhood, after performing all the ceremonies of adoption according to the custom of the caste, and that for its stability I execute this deed of adoption containing the following conditions:--

That during my life time I shall be the owner and manager of the estate, and that after my death the adopted son should have the same rights and privileges as would have been enjoyed by the natural son of Ishan Chandar Mukarji, born of me. I have therefore executed this deed of adoption that it may serve as evidence and be used when needed. Dated 24th February 1878, corresponding with Phagun Badi (Ashtimi) Sambat 1934, Sunday.

It was signed by her and her signature was witnessed by the natural father of the defendant-appellant. The defendant-appellant was the boy whom she adopted, and is now, we are informed by his counsel, 26 years old. The lady died in February 1888, whilst this suit was pending. The defendant-appellant on the 29th March 1887, filed his written statement, in which, although he made several charges against the old lady, he alleged that the capacity of the Musammat was that of a manager of a Hindu family; he said she had no right to transfer any property; he alleges that she has incurred unlawfully debts and done acts to his detriment. The Subordinate Judge decreed the plaintiff''s claim against the defendant-appellant. On his behalf it has been contended here that the notes of hand in question were given by her in carrying on an Indigo Factory, and that she had no power to incur any debts beyond those for which she alone could be made personally responsible; in other words, that she was the owner of the property and was not in the position of a Hindu widow of a separated sonless Hindu, but in the position of a person who had an estate, for life, and that when it was provided in the deed of the 24th February 1878 that she should be owner and manager of the estate it was intended that she should be manager of the estate on her own behalf only and should not be in the position of the person who in a Hindu family acts and is known as the manager. Reading that deed in its natural sense, we are of opinion that it conferred upon her an interest and an authority not less than she would have had as the widow of a separated sonless Hindu to whom no adoption had been made so far as her position as manager is concerned. The defendant-appellant, by the third paragraph of his written statement, seems to have been of opinion that her capacity as manager was such a capacity as we think was contemplated by the deed. We have been referred to Chitko Raghunath Rajadiksh v. Janaki 11 Bom. H.C. Rep., 199 Ramasami Aiyan v. Venkataramaiyan ILR 2 Mad. 91, S.C., L.R. 6, IndAp 196 as showing that in Bombay and Madras such an arrangement as is represented by the deed of the 24th February 1878, would be held valid, particularly as it is admitted that the defendant-appellant ratified that arrangement after he attained his majority. We have also been referred to Brojo Nath Mookhopadhya Vs. Bepin Behari Bundopadhya, which shows that the view of their Lordships of the Privy Council in the case above referred to from Madras would be equally applicable to a Bengali, subject to the Hindu law of lower Bengal. It is admitted that the defendant-appellant here is such a Bengali. It appeal''s to us, under the above circumstances that the lady having given those notes of hand for the bon� fide purpose of carrying on the Indigo Factory, which, as a matter of fact, had existed and had been carried on by her deceased husband in her life time, the defendant-appellant is liable for the amount decreed against him in the court below. The appeal is dismissed with costs.