Biswa Nath Singh vs Jugal Kishore and others

Sir John Edge, J.

This is an appeal by Bishwanath Singh, the surviving plaintiff, against a decree of the Court of the Judi cial Commissioner of Oudh, which rever sed a decree of the Subordinate Judge of Sitapur and dismissed the suit. The suit is for the possession of a two-thirds share of the village Pakauri in the district of Sitapur.

The other plaintiff in the suit was Musammat Gulab Kuar, who is now dead. She was the widow of Baldeo Bakhsh Singh, who died sonless in or about 1891. He was a Hindu and by caste, a Raghu bansi, and lived in the village of Bamh nawan in the district of Sitapur and owned the village of Pakauri. The widow adopted on the 17th October, 1915, the appellant as a son to her deceased hus band, who had given her no authority to adopt a son to him.

The question which their Lordships have had to consider in this appeal is whether that adoption was valid, and apparently that was the only question as to which there was a contention in the Appellate Court. The learned Judges of the Appellate Court, in their judgment, said :-

"There are thus two points for deci sion in this appeal, namely, whether Musammat Gulab Kuar had authority from her husband to adopt, and secondly, whether failing such authority she had a right of (by) custom to adopt without authority from her husband."

The fact of the adoption is not now disputed and is beyond dis pute. The family to which Baldeo Bakhsh Singh belonged was subject to the law of the Mitakshara as interpreted by the school of Benares, according to which an adoption by a widow of a son to her deceased husband would be invalid if made without an authority to adopt given to her by her husband, unless such an adoption was authorised by a custom of the family.

The evidence that there was such a custom in this family consisted of state ments as to the right of widows to adopt sons to their deceased husbands contain ed in the wajib-ul-arzes of eight villages which had been recorded in the settle ment of 1871, that is about forty-four years before the adoption in question here.

One of those villages was the village of Bamhnawan, in which Baldeo Bakhsh Singh had lived : at least two other of the villages were villages in which he or members of his family were in terested as proprietors; and the remaining four villages were villages in which members of his caste had been interested, although their rela tionship to his family was not proved. There was also some oral evidence of wit nesses in support of the custom.

In the wajib-ul-arz of Bamhnawan and in some of the other wajib-ul-arzes it was stated that widows could adopt sons to their deceased husbands without having had the authority of their husbands to adopt. In the other wajib-ul-arzes it was simply stated that widows could adopt.

In their Lordships'' opinion those state ments meant the same thing, that is that widows could adopt sons to their hus bands although they had had no authority from their husbands to adopt; it was so that the Subordinate Judge construed the wajib-ul-arzes, and he found that the cus tom was proved.

The appellate Court was of opinion that the mere statement in a wajib-ul-arz that a widow could adopt meant that a widow, who had the authority of her hus band to adopt could make an adoption to him, and consequently held that the statements as to the custom were not con sistent and that the custom was not proved. It did not occur to the learned Judges of the Appellate Court that if the statement that a widow could adopt meant that she could adopt if she had had the authority of her husband to adopt, the statement was not a statement of a special family custom, and was unneces sary as it would be merely a statement of a right which a Hindu widow of a sonless Hindu enjoys everywhere in India, ex cept possibly in families governed by the law of the Mithila School.

Their Lordships are of opinion that the custom was proved and that the adoption of the appellant was valid. It may be mentioned that the learned Judges of the Appellate Court did not doubt the credi bility of the witnesses as to the custom, whose evidence the Subordinate Judge has accepted as true, but they thought that it had not been proved that these witnesses belonged to the family to which Baldeo Bakhsh Singh had belonged.

This appeal has been heard ex parte, no respondent having appeared. As the appeal has been heard ex parte the Coun sel for the appellant has drawn their Lordships'' attention to the fact that the learned Judicial Commissioners have not in their judgment expressed a finding on the seventh ground of the appeal to their Court, which was as follows :- "7. That the lower Court should have held that the deed, dated the 10th September, 1894, was executed for legal necessity."

The deed of the 10th September, 1894, was a mortgage of the village Pakauri granted by the widow while she was in possession of a Hindu widow''s interest in the estate. On that mortgage a decree for sale was made and at the sale the two-thirds share in the village now claimed by this appellant was purchased by some of the defendants to this suit.

The Subordinate Judge had found in this suit that the mortgage was not made for necessity. The learned Judicial Commis sioners said in their Judgment that : "They (the defendants) denied the adop tion and they denied the widow''s power to adopt. They also pleaded that even if the adoption was proved, it could not affect the interest acquired by the purchasers before the adoption. On this last pleading no issue was framed and nothing has been said in argument in appeal. It must therefore be taken to have dropped." The question as to whether the mortgage was or was not granted for necessity was involved in the question as to whether the purchasers at the sale under the decree had acquired title by their purchase.

In their Lordships opinion the learned Judicial Commissioners were under the circumstances justified in holding as they did, that the only question which remain ed for them to decide in the appeal was the question as to the validity of the adoption.

Their Lordships will humbly advise His Majesty that this appeal should be allowed with costs, that the decree of the Court of the Judicial Commissioner should be set aside with costs and the decree of the Subordinate Judge should be restored and affirmed.