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Dharam Kunwar vs Balwant Singh

High Court Of Judicature at Allahabad|04 August, 1908


JUDGMENT John Stanley, C.J. and Banerji, J.
1. The title to the Landhaura estate, an extensive and valuable estate situate in the district of Saharanpur and other districts, is involved in this appeal. The plaintiff, who is the widow of the late Raja Raghubir Singh, seeks for a declaration that she had no power to adopt the defendant Balwant Singh, and that she in fact never adopted him, and that a document which is called a deed of adoption, dated the 13th of January 1899, might be declared to be void.
2. Raja Raghubir Singh died on the 23rd of April 1868 at the age of about 20 years. After his death his widow, the plaintiff, Rani Dharam Kunwar, gave birth to a son on the 16th of December 1868, who was named Jagat Parkash Singh. This eon died on the 31st of August 1870, and on the 4th of March 1877, the plaintiff adopted a boy Tofa Singh, who was afterwards renamed Raja Narendra Singh. This adopted boy died about 2 1/2 years after his adoption, and on the 20th of January 1883 the plaintiff adopted another boy named Earn Sarup, who was renamed Ram Padab Singh. In June 1885 Earn Padab Singh died, and a few years afterwards the plaintiff took a boy named Umrao Singh to live with her with a view to his adoption. This boy also died before adoption in May 1896. Then on the 2nd of June 1898 she determined to adopt another son, and amongst others two sons of Ram Newaz, namely, the defendant Balwant Singh and his brother Tungal Singh were brought to her for approval, and these two boys were permitted to live with her for some time. Ram Newaz is a man in humble circumstances owning only a small zamindari on which Rs. 50 per annum is paid for revenue. The defendant Balwant Singh was selected, and on the 13th of January 1899, the ceremony of his adoption is alleged to have been performed with all due formalities, and an agreement was executed by Ram Newaz as also by the plaintiff. It is this adoption which the plaintiff geeks to have declared invalid, her case being that she had no authority from her husband to adopt the defendant and that the adoption in fact never took place.
3. The learned Subordinate Judge found that the factum of the adoption was proved and that the plaintiff having adopted the defendant is estopped from alleging that she had no authority to make the adoption and accordingly dismissed the plaintiff's suit. From this decision the present appeal has been preferred.
4. On the 1st of May 1900, one Baldeo Singh, claiming to be the reversionary heir of Raja Raghubir Singh, brought a suit to have the adoption of the defendant set aside and in that suit impleaded as defendants both Rani Dharam Kunwar and Balwant Singh. The suit was dismissed on the 30th of May 1901 on the ground that the plaintiff was not the reversionary heir of Raja Ragbubir Singh. The Court in its judgment also held that Raja Raghubir Singh did not give any authority to his wife to adopt a son and that therefore the adoption of Balwant Singh was invalid. An application was made to the Subordinate Judge by Rani Dharam Kunwar, in which she prayed that the finding that she had no authority to adopt might be embodied in the decree so as to enable her to appeal from it and have it reversed. This application was granted. From the decree of the Subordinate Judge Baldeo Singh appealed to the High Court. The appeal was heard before a Bench of which one of us was a member and on the 10th of December 1903 was dismissed. four days after judgment was pronounced an application was made to the Court on behalf of Balwant Singh under the following circumstances. When the learned Subordinate Judge delivered his judgment his decree was that the plaintiff's claim be dismissed with costs, but subsequently on an application made by Rani Dharam Kunwar he directed that his findings on three issues should be added to the decree. The findings on the second and third issues were to the effect that it had not been proved that Rani Dharam Kunwar had authority from her husband to make the adoption, but that as a matter of fact she had adopted Balwant Singh. The application was that the findings on these issues should be struck out of the decree, the contention being that, as the plaintiff Baldeo Singh had no locus standi to contest the adoption, it was unnecessary for the Subordinate Judge to have tried any other issue and that the findings on any other issues were mere obiter dicta, which should cot have been added to the decree. This application was resisted by the defendant Rani Dharam Kunwar, and the Court was frankly informed by the learned advocate who appeared for her that her object in desiring to have the additions in question made to the decree was that they might be used by her as res judicata in future litigation between herself and Balwant Singh. The Court acceded to the application and directed that the two findings to which we have referred should be struck out of the decree. The litigation which was then in contemplation is the suit out of which this appeal has arisen.
5. The learned Subordinate Judge did not determine, as we have said, whether Rani Dharam Kunwar had authority from her husband to adopt. He dismissed the suit on the ground that she by her conduct was estopped from alleging that no such authority was given to her. Whether or not he was right in this decision is the main question in this appeal.
6. As to the factum of the adoption there cannot be in our judgment any doubt whatever. The evidence shows that not merely was the adoption ceremony performed, but it was performed with great pomp and ceremony. Invitations to amongst others, the principal European inhabitants, including &he Collector, were issued, and a largo number attended, The proceedings lasted throughout the day, and photographs of the scene were taken, which have been produced. The fact of the adoption was indeed not seriously contested by the plaintiff's learned advocate. Not merely is it established by the oral evidence, which is voluminous, but by two documents, one bearing the seal of the plaintiff herself and the other signed by Ram Newal the father of the defendant. Those documents were registered on the 19th of January 1899, the execution of the one which bears the seal of the plaintiff being then admitted by her. In this last mentioned document there is a recital that Raja Raghubir Singh entertained during his life-time the wish that a son might be born to him who would fulfil the religious needs and become the owner of his estates, that ho had no male or female issue in his life-time and that as the plaintiff was then pregnant he gave the following direction to her: "If (God forbid) you give birth to a daughter, or if a son be born, but die after his birth, I strictly order you to adopt some boy so that he may perform my sradh ceremony and yours and perpetuate my name and after your death become the absolute owner and possessor of the whole of my estate. If (God forbid) the son who may be adopted under this authority should die in your life-time you will have power to make another adoption." Then there is a recital of the birth and death of her son Raja Jagat Parkash Singh, and that in compliance with the will of her husband the plaintiff had adopted a boy called Sewa Singh, and Ram Padab, both of whom died young and unmarried, Then the selection of Balwant Singh for adoption is mentioned and this is succeeded by the following passage: "This 13th day of January 1898, after performing the necessary ceremony, I adopted Balwant Singh, son of Chaudhri Earn Newaz; to myself and my husband in the presence of the gentry, the district authorities and other European gentlemen and the members of my brotherhood, and Chaudhri Ram Newaz, the natural father of the said Balwant Singh, gave Balwant Singh to me as an adopted son." The document provides that so long as the plaintiff lives she should remain the owner and possessor of the estates. This instrument bears the signature of no less than 28 attesting witnesses, and as we have said was registered upon the admission of execution of the plaintiff herself.
7. In the contemporaneous document' which was executed by Earn Newaz he admitted that he had given his son Balwant Singh to the plaintiff as an adopted son for her and her Husband and that the usual religious ceremonies and those connected with the bradari had been performed with all publicity the same day. Six witnesses attest the execution of this document including the defendant Balwant Singh, In the first mentioned document there is a positive assertion by the plaintiff that she had authority to adopt Balwant Singh.
8. In addition to this we have the positive assertion of the plaintiff in her written statement in the suit of Baldeo Singh v. Rani Dharam Kunwar and Balwant Singh that she had authority to adopt the defendant. In the 8th paragraph of that written statement (No. 224 of the record) is the following passage: "The defendant adopted Balwant Singh defendant under lawful authority with full publicity. The said adoption is valid in every respect." We have thus clearly established the representation of authority to adopt made by the plaintiff and also the fact of the adoption. In addition to this it is an admitted fact that the marriage of the defendant was carried out by and at the expense of the plaintiff. It is also not disputed that after his adoption the defendant performed the sradh ceremonies of Raja Raghubir Singh. In his evidence Balwant Singh deposed that "the first kanagat (i.e., offering of cakes and oblations of water to the manes of ancestors) which took place after adoption was caused by the Rani to be observed by me, afterwards I continued observing the kanagat which took place." This is not contradicted, The question then is whether or not in view of those facts the Court below was right in holding that the plaintiff is estopped from denying her authority to adopt the defendant.
9. We are not aware of any case, and none has been cited to us, in which a plaintiff has successfully raised such a contention as has been laid before us by the plaintiff's learned advocate. In the most solemn way the plaintiff' represented that she had authority to adopt and allowed the adoption of the defendant to be carried out with the utmost publicity and with great pomp and ceremony. Moreover, she executed a document which should serve thereafter as evidence of the fact of the adoption. In the last paragraph of it we find the statement that "this document which is a deed of adoption has been executed by me and I have affixed my seal to it with my own hands in order that it may serve as evidence." After the adoption the defendant lived with the plaintiff as her adopted son, was married as such at her expense, and, as we have said, performed the sradh of her husband.
10. It is contended on her behalf that this conduct of the plaintiff does not operate as an estoppel; that in order to create an estoppel it must be shown that the person setting it up has Buffered some loss or detriment, and that in this case the defendant could not show that he had suffered any loss or detriment; that both families belong to the same gotra, and that the defendant can return to his father's house and obtain his share of his father's property; that the fact that he held the position of a Raja for some years was beneficial to him and in no way detrimental. We do not agree as to this. The experience of the defendant as a Raja would entirely unfit him for the life of a cultivator. But if it were necessary to show pecuniary loss, we find that the defendant incurred heavy liabilities in defending his adoption in the suit brought by Baldeo Singh. In his evidence he deposed, and he is not contradicted, that Man Singh prosecuted this suit on his behalf and paid the expenses of it, and that some of the money expended by him was still due, and further that Lala Niranjan Lal, an Honorary Magistrate of Saharanpur, had lent him a sum of Rs. 23,000. If he had not been led to believe that he was the adopted son of Raja Raghabir Singh he would not have incurred these liabilities; large sums of money would undoubtedly not have been lent to him. So that, if it were necessary to prove detriment or loss from the conduct of the plaintiff on which the estoppel is based, these facts are in our opinion sufficient for that purpose. Section 115 of the Evidence Act regulates the law of estoppel. It prescribes that "when one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or "proceeding between himself and such person or his representative to deny the truth of that thing." Lord Shand observed of this doctrine as follows: "What the law and the Indian Statute mainly regard is the position of the person who was induced to act, and the principle on which the law and the Statute rest is that it would be most inequitable and unjust to him that if another by a representation made or by conduct amounting to a representation has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement to the loss and injury of the person who acted on it. If the person who made the statement did so without full knowledge or under error, sibi imputet. It may in the result be unfortunate for him, but it would be unjust, even though he acted under error, to throw the consequences on the person who believed his statement and acted on it as it was intended he should do." Surat Chunder Dey v. Gopal Chunder Laha (1892) I.L.R. 20 Calc. 296, at p. 311. To allow the plaintiff to repudiate the adoption would not only, we may observe, in this case be detrimental to the defendant, but to third parties, such as the creditors of the defendant, who advanced money to him on the faith of his position as Raja. It is highly probable also that acting on the same assurance his wife's father gave her in marriage to him. We know of no authority, and none has been cited to us, in which a widow who had taken a boy in adoption to her husband was afterwards successful in a suit for a declaration that the adoption was invalid. Two cases in this High Court were cited to us in which a similar suit failed. The first is the case of Sulchbasi Lal v. Guman Singh (1879) I.L.R. 2 All. 366. In that case an adoptive father claimed a declaration that the defendant was not his adopted son, on the ground, amongst others, that he had not been adopted in the manner and according to the ceremonies required by Hindu Law and had failed to perform a certain agreement entered into by him with the plaintiff. In this agreement the plaintiff agreed on his part to consider the defendant as an adopted son. The defendant set up as a defence to the suit that the plaintiff could not be allowed to deny the validity of the adoption, as in a petition presented by him to the Revenue Court on the 27th of April 1860 he had declared that he had adopted the defendant-; that all the ceremonies of adoption required by Hindu Law had been performed, and that the defendant would succeed to his property on his death, and had confirmed such declaration by his subsequent conduct, and the defendant had been excluded from inheriting his natural father's property. The Court of first instance held that the plaintiff was estopped from denying the validity of the adoption. On appeal this decision was upheld. Spaukie, J., in his judgment observed: "The plaintiff having himself affirmed the adoption as having been fully and formally made after the performance of all the ceremonies required by the Hindu Law cannot now disaffirm it and sue for a declaration that it is invalid. Indeed when the adoption has once been absolutely made and acted on for years it cannot be cancelled. It is certain that an adopted child cannot renounce the family of his adoptive father. He is entirely separated from his own family when his natural father disposes of him. The adoptive father in accepting an adopted son is bound by his act which secures to the adopted son all the rights of a son born to the family. He is as much a son as if he had been begotten by his adoptive father." The only difference between this case and the case before us is that in it the adoptive father and the adopted son belonged to different gotras, whilst in this case they belonged to the same gotra. This does not, we think, materially differentiate the two cases.
11. The other case is that of Durga v. Khushalo Weekly Notes 1882, p. 97. In that case, on the death of her husband Kishen Lal, the respondent Khushalo admitted in the Revenue Court that her husband had adopted Durga the appellant and prayed that her and his name might be recorded in respect of the property left by her husband. Subsequently the daughters of Kishen Lal sued Khushalo and Durga for a declaration that Durga was not the adopted son of Khushalo and obtained a decree. After that Khushalo brought a suit against Durga for possession of her husband's estate claiming as her husband's heir and denying the adoption of Durga. Straight and Tyrrell, JJ. dismissed the suit, holding that in view of her declaration and conduct in the Revenue Court the respondent was not competent to maintain the suit, and that as between her and Durga she was estopped from maintaining it. This was a much weaker case for the application of the doctrine of estoppel than the one which is before us.
12. The learned advocate for the respondent relied upon the decision in Thakoor Qomrao Singh v. Thakooranee Mehtab Koonwer N.W. P.H. C. Rep. 1868, p. 108A. In that case the plaintiff claimed to succeed to certain property as the adopted son of Thakoor Chutturbhooj Singh, the husband of the defendant Thakooranee Mehtab Koonwer. The daughter of Thakoor Chutturbhooj Singh was also impleaded as a defendant. The plaintiff appears to Lave been brought up and regarded as an adopted son and as the heir to the property up to the end of 1863, when in the record of the paper of administration of Kotla khas, the estate in dispute, the Thakooranee designated Oomrao Singh as one brought up and educated at her expense from childhood saying that his succession on her death was to depend upon her pleasure, it being conditional on his good behaviour. This declaration gave rise to ill-feeling and disputes, which ultimately led to the suit. The plaintiff set up the case that he was validly adopted. Mehtab Koonwer denied the adoption. The other defendant in her written statement denied that any authority to adopt had been given, and she also contended that an agreement of the 22nd of January 1864 which purported to settle the right in the property upon the plaintiff was not binding on her. It was contended that it did not lie in the mouth of Mehtab Koonwer to disclaim the plaintiff as a son and to deny his right to succeed to the property of her husband after her treatment and recognition of him as an adopted son for 14 years. It was held that she was not estopped from doing so, on the ground that it was never the intention of the Thakoorance that the plaintiff should supersede her in the management and enjoyment of the property without her consent, and that she had not precluded herself from setting up the rigid provisions of the Hindu Law; in other words, that if there had been no valid adoption she might resist the attempt to eject her upon that ground, seeing that she intended to retain possession during the term of her life. It was further held that a valid adoption was not proved by the plaintiff, and his suit was dismissed. It will be observed that in this case an estoppel could not be set up as against the second defendant, and that the suit was not one by an alleged adoptive mother to have an adoption set aside, but was a suit by the plaintiff claiming possession of the adoptive father's property. This case therefore does not give much support to the plaintiff's contention.
13. Upon the whole we are of opinion that the Court below rightly held that the plaintiff was estopped from setting up the alleged invalidity of the plaintiff's adoption. The plaintiff represented that she had authority to adopt, and this representation was acted on by the defendant. The ceremony of adoption was carried out on the faith of this representation. The marriage of the defendant was likewise on the strength of it celebrated, and the defendant performed the sradh ceremonies of his adoptive father. In addition to this we have the fact that the defendant resisted the suit of Baldeo Singh, in which the validity of the adoption was impeached, and was supported in his defence by the plaintiff and incurred heavy liabilities in raising funds for the purposes of his defence. These matters appear to us to put it out of the power of the plaintiff to maintain a suit for a declaration that her solemn act of adoption was without authority. We are supported in this view by the decision in the following cases Kannammal v. Virasami (1892) I.L.R. 15 Mad. 486, Ravji Vinayakrav Jaggannath Shankarsett v. Lakhshmibai (1887) I.L.R. 11 Bom. 381 and Santxppayya v. Rangappaya (1894) I.L.R. 18 Mad. 397. We might further say that the suit, in so far as it is a suit for a declaration that the plaintiff had no power to adopt, is one in which it is discretionary with the Court to give or refuse relief. We should hesitate in the circumstances of this case before passing a decree in favour of the plaintiff for such a declaration in view of her conduct and of the false position in which the defendant would be placed if her representation as to authority were held not to be binding on her. We therefore dismiss the appeal with costs.
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Dharam Kunwar vs Balwant Singh


High Court Of Judicature at Allahabad

04 August, 1908
  • J Stanley
  • Banerji