Case: Dwarka Nath Vs. Shri Lal Chand And Others

1. This appeal arises from a suit filed by respondents 1 and 2 for declaration of their rights to the Phulpur Estate, for possession of properties belonging to the Estate and for mesne profits. The Phulpur Estate is situated in Allahabad District. One Rai Bahadur Rai Pratap Chand who dies on January 23, 1901, was the Zamindar of this Estate. After his death, his widow Rani Gomti Bibi succeeded to the Estate. Rani Gomti Bibi was considerably influenced by her brother Gaya Prasad and priests belonging to some temples. In the years following the death of her husband, Rani Gomti Bibi made many endowments involving vast properties and in July 1920, the Court of Wards assumed charge of the Estate which the Rani was mismanaging. On February 21, 1923, the Rani adopted one Bindeshwari Prasad and then applied to the Court of Wards under S. 37 of the U.P. Court of Wards Act for permission to make the adoption. The Collector (Mr. Knox) made an enquiry and on April 5, 1923, made a report Ex. 79 stating that the evidence tendered before him was so conflicting and unreliable that he had come to the conclusion that the authority of Rai Pratap Chand to adoption by his widow was not proved. He, therefore, recommended that Rani Gomti Bibi be declined permission to make the adoption and the Board of Revenue accordingly refused permission. Rani Gomti Bibi, however, executed a deed of adoption on November 6, 1924 in favour of Bindeshwari Prasad. A suit was filed by Parmeshwar Dayal (who was the first plaintiff in the present suit) in 1925 against Rani Gomti Bibi, Bindeshwari Prasad and the Court of Wards challenging the adoption made by the Rani. On August 21, 1920, the suit was decreed, and it was held that the adoption was contrary to S. 37 of the U.P. Court of Wards Act, 1912 and was thus invalid inasmuch as permission to make the adoption was not obtained from the Court of Wards2. Rani Gomti Bibi then applied to the Court of Wards for permission to adopt Bindeshwari Prasads brothers son Dwarka Nath who is the present appellant. Fresh enquirires about the authority of the husband were made by the then Collector Mr. Thompson. He examined witness from a list filed by Gaya Prasad in the earlier suit of 1925. After considering the evidence, the Collector recommended grant of permission under S. 37 of the U. P. Court of Wards Act and permission was accordingly granted by the Board of Revenue. On November 28, 1929, the Rani adopted Dwarka Nath at Phulpur. Immediately after this adoption the Court of Wards released the Estate and assumed charge of it again on behalf of Dwarka Nath who was a minor3. On January 5, 1943, Rani Gomti Bibi dies and the present suit was filed by Parmeshwar Dayal and one Amarnath Agarwal to whom Parneshwar Dayal had assigned 6/16 share in the Estate. This suit was decreed by the Civil Judge of Allahabad who held inter alia that Parmeshwar Dayal was the nearest reversioner of Rai Pratap Chand and was entitled to succeed him, and further that the adoption was invalid as there was no proof of authority given by Rai Pratap Chand to Rani Gomti Bibi to make the adoption. The suit for declaration and possession was decreed with mesne profits amounting to Rs. 88,000 against Dwarka Nath and the Collector and the Court of Wards who was also made a party to the suit. Three appeals were filed against the judgment and by a common judgment dated March 24, 1959, the High Court affirmed the decree except in respect of mesne profits. The High Court certified the case as fit for appeal to this Court and the present appeal results.

Reasoning: The Section obviously places a hurdle in the way of adoptions by the wards which must be removed before the adoption can be valid. The Section affects the competence of the Wards to make the adoption and as the consent is a prerequisite, any adoption made without such consent must be ineffective. The Section, however, does not make the sanction of the Court of Wards to cure illegalities or breaches of the personal law. Nor does the sanction make up for incompetence arising under the personal law. It is obvious that if the adoption is void by reason of the personal law of the person adopting, the consent of the Court of Wards cannot cure it. Nor would the consent take the place of the essential ceremonies or the religious observance where necessary. Those matters would have to be determined according to the personal law in Civil Court of competent jurisdiction7. In deciding the question of authority, the High Court rejected the oral evidence led before it and affirmed the conclusions of the trial Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and found it unacceptable. The trial Judge pointed out that as lawyers were present when Rai Pratap Chand is alleged to have given authority to his widow and as it was also suggested that that fact should be recorded, it was unbelievable, if the statements were true, that written authority would not have been prepared then and there. The High Court did not content itself with accepting the opinion of the trial Judge but discussed the evidence de novo and rejected it. The High Court pointed out that Rai Pratap Chand was only 30 years old at the time of his death and his wife was 25 years old and he could not have abandoned the hope of having an issue. Evidence shows that the writing was put off because it was not thought that Rai Pratap Chand was dying. The High Court also pointed out that Rani Gomti Bibi executed between November 24, 1901 and August 19, 1904 four doecuments making different endowments. In none of these documents, she mentioned that she had been asked by her husband to make them. The High Court pertinently pointed out that the oral evidence showed that the declaration of the authority to his wife and the oral will to make the endowments, were made by Rai Pratap Chand at the same time and these facts would have figured as the reason for the endowments in these documents. Mr. Agarwala contends that even if the reasons for the endowments might be expected to be expressed, it is not logical to say that the deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not recited in the documents, one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue12. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the questions of fact are concerned, we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion.