Sundar Prasad Singh vs Musammat Rambati Kuer

Roe, J.—One Singhesar Prasad Singh died in Jeth 1314, leaving him surviving his two daughters the plaintiffs in this case and a nephew Sundar Prasad Singh the principal defendant.

Upon the death of Singhesar Prasad his widow applied for the registration of her name in Register D. The application for registration was resisted by Sundar Prasad Singh upon the ground that he had been adopted by Singhesar Prasad during his lifetime as his son and had been in possession of the property since the death of Singhesar, Prasad Singh. The objection was disallowed and the name of Musammat Makund Koer was registered. Sundar Prasad Singh thereupon instituted a suit in the Civil Court for ft declaration that he was the adopted son of Singhesar Prasad and for possession of the estate of Singhesar Prasad as the adopted son. The case came to a hearing. Musammat Makund Kuer made default in the production of witnesses and asked for an adjournment of the case. On the adjournment being refused the Pleader left the Court. The case was then decided against her upon formal evidence of the adoption. The case went in appeal to the High Court, and it was there ordered that inasmuch as the learned Subordinate Judge had failed to take sufficient evidence to prove the adoption before the granting of the ex parte decree the case must be remanded to him for a re-hearing, and it was further ordered that at the re-hearing the defendant should be permitted to adduce such evidence as she pleased and to defend the suit generally. On the case returning to the Civil Court for trial a petition of compromise was filed on behalf of Makund Kuer, whereby it was agreed that the adoption should be admitted and that Makund Koer should hold a life-estate in one half of the property, that this half of the property should descend to her daughters upon her death, and that the remaining half should go to Sundar Prasad Singh. In compliance with the decree made upon this petition of compromise Sundar Prasad entered into possession of the half share of the estate. In the meantime the elder girl Rambati Kuer had been married. Her father-in-law Harkhit Singh doubted the binding character of the compromise and suspected the genuine character of the alleged adoption. On his advice a suit was instituted by Rambati Kuer for herself and as next friend of her minor sister for declarations, firstly, that the compromise entered into by Makund Koer is not binding upon the daughters, secondly, that Sundar Frasad was never adopted by Singhesar Prasad Singh.

Upon the pleadings seven issues were framed, They may be briefly summarised as follows:

Firstly. Can the plaintiffs re-open the question of the adoption in the face of the compromise?

Secondly. If the question can be re opened at all, can the plaintiffs whose right to succeed was at the time of the death of Singhesar Prasad postponed to the death of a prior reversioner, maintain a suit of this character, and

Thirdly. If they are entitled to maintain a suit for a declaration that the adoption was never made, are they entitled to that declaration upon the merits of the case?

The power of a widow to compromise a suit for the benefit of the whole family has never been doubted. The latest case upon the subject is that reported as Khunni Lai v. Gobind Krishna Narain 10 Ind. Cas. 477 : 33 A. 356 : 38 I.A. 87 : 15 C.W.N. 545 : 8 A.L.J. 55 : 13 C.L.J. 575 : 13 B L.R. 427 : 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.K.J. 645 (P.C.). In the arguments of Mr. Cowell and Mr. DeGruyther will be found a full statement of the case-law upon subject. If it were necessary to lay down any broad proposition to be evolved from these cases, I would say that the position must always be regarded from the point of view whether the widow in -making the arrangement was in good faith considering the interests of all the members of the family. If she was honestly doing her best for the family, the compromise entered into by her should be accepted as binding. If she was merely considering her own peace for the remainder of her life, the compromise should not be held binding on those whose interests have not been considered.

The first point to which, therefore, I propose to devote my attention is the question whether it would appear from the papers upon the record that the widow was honestly doing her best for the family as a whole. And in considering this question, inasmuch as a pardanashin widow is not generally possessed of sound wisdom, we should consider carefully to what extent she had access to capable legal advice and whether that legal advice was given her in good faith for the benefit of the estate.

I entirely agree with Mr. Das that the point to be considered in connection with this issue is not whether in fact there was an adoption. The sole question is whether Sundar Prasad was likely to be able to prove that there was an adoption. If there really had been no adoption, nevertheless if there was at the time a conspiracy among the whole of .the gotias backed by the neighbouring mahants and the family priest, however great may have been falsity of the case, the danger to the estate was not lessened by that falsity.

We have, therefore, three points to consider firstly, whether there was a menace to the widows''s estate; secondly, what was the extent of that menace, and thirdly, was she really acting for the benefit of her daughters in avoiding that menace?

Upon the first point we must go back to the evidence of the defendant Sundar Prasad given as objector in the registration case. He gives in this evidence a list of seven names, six of whom are golias and one the family priest, as persons who were present at the time of the adoption. We may take it then that these persons were all on his side. It is to be noted that the name of the mahant who now comes forward as a witness is not given among those described originally as having been present at the adoption. It is also to be noted that, if the judgment of the learned Deputy Collector contains an exhaustive review of the evidence, two only of the gotias appeared in the witness-box to give evidence. It is further to be noted that those gentlemen (however many they may have been) who appeared in the witness-box to give evidence on '' behalf of Sundar Prasad; were characterised by the learned Deputy Collector as perjurers, and the plaintiff''s case as a whole was characterised in the following language:

I cannot conclude my judgment without recording my strong disapproval of the objector''s conduct in relation to his ease. He has perjured himself shamelessly and has set up others to give false evidence on his behalf.

Now I do not propose to consider these quotations from the judgment as in any degree res judicata, or anything indicating what was the real position in regard to the adoption. Whatever the learned Deputy Collector chose to say about those witnesses, it would be still open before us for Sundar Prasad to say that the Deputy Collector was entirely mistaken; that the case was a case brought in absolutely good faith and that the adoption had in fact taken place. But the parties, when considering the expediency of a compromise, would naturally consider the impression which the evidence adduced by Sundar Prasad, had upon the Court before which it was produced. Had the lady been properly advised she would have been informed that whatever may be the future danger before the learned Subordinate Judge, the evidence given in connection with the adoption had been stigmatised, by the only officer who had yet heard it, as shamelessly false.

We come next to the position in the High Court. Nothing there was said upon the merits of the case. All that had been said was that the evidence on the record in the ex parte proceedings was not sufficient to prove the case. That for the time being was without doubt a victory for Makund Kuer. It seems to me improbable that after these victories in the Revenue Court and in the High Court she would have been advised by her legal advisers to make a compromise, unless there was something more to fear than so far had been made visible.

Coming next to the actual advice she received, we find it admitted that she was throughout these proceedings and up to the date of the remand by the High Court advised by four of the leadings Pleaders of the Bar. The compromise was drafted by a mukhtear. That mukhtear had in many previous revenue cases acted on behalf of Sundar Prasad. He did not take the petition of compromise to any of the Pleaders who had been employed on the lady''s behalf but chose as the hand by which the compromise should be laid before the Court Babu Bindeshwari Prasad, a young gentleman of two or three years'' practice at the Bar, But it may be said that if the lady herself had sufficient intelligence to estimate the danger to the estate her acceptance of the compromise should bind the estate. Here we have to go into the question as to what was the mental capacity of the lady, The plaintiff now strenuously contends that she is full of mental vigour and quite capable of managing her own affairs. Throughout the dakhil kharij case the whole basis of the desire in the mind of Singhesar Prasad to adopt Sundar Prasad was said to be that the lady was practically insane. The mukhtear, in addition to being a mukhtear generally employed by Sundar Prasad, also appears to have got into serious trouble with a factory, by whom he was employed. He had been threatened with criminal proceedings for criminal misappropriation and the sum which he was accused of taking he refunded on the return from Europe of the Manager. In a case in which he offered himself as security either u/s 107 or 109 (the section is not mentioned) for Rs. 200 the Police reported that he was not worth that sum. The position, as I see it, is that the compromise was entered into by a pardanashin widow who according to the case of both sides was half-witted; that the compromise was drafted by a mukhtear with a tarnished reputation who was a tool of her adversary; that this mukhtear deliberately kept the widow away from any legal advice which might have been of benefit to her; and that no responsible lawyer would have advised her that the compromise was a sound compromise. I cannot conceive that a compromise entered into in these circumstances should be accepted as binding upon two children who were not represented. I am of opinion that so far as the two children we concerned, the compromise should be ignored. The children should be allowed now to reopen the question of the adoption in a suit of their own.

The next point for consideration is whether seeing that the adoption alleged is an adoption by Singhesar Prasad and seeing that that adoption bars for the present only the claim of the first reversioner the widow, the second reversioners the daughters can contest the adoption during the widow''s, lifetime. On consideration of the attitude of the Courts of Bombay and Madras towards suits brought to deny an adoption as exemplified in Barot Naran v. Barot Jesang 25 B. 26 : 2 BL.R. 495; Ratnamasari v. Akilandammal 26 M. 291 : 13 M.L.J. 27 and in particular in regard to the attitude of Moore, J., in the latter case, I feel that parties likely to be injured by the alleged adoption should be allowed to take the earliest opportunity of denying it. Moreover, it is to be toted that the ceremony of adoption is one of which no written record is made. The evidence of it is oral evidence, and will evidence, and will be lost if its production is too long delayed. It may be that this insane woman may live another 30 or 40 years. If the inheritance is not to be opered for 40 years, it would be then absolutely impossible to prove or disprove an adoption. That this view is the view taken in the English Courts is apparent from the Court''s attitude in the Slingsby case a suit for a declaration that a son had been born to the present owner of the Slingsby Estates. If such a suit is maintainable I can see no bar to a suit for a declaration that a son has not been born, or for a declaration that no son has been adopted. The plaintiffs should not be debarred from bringing that suit by the fact that their mother is still alive. That lady has placed herself, either through her own stupidity or through the fraud of Sundar Prasad, in a position from which she would find it difficult to maintain a suit of her own. I hold that it is open to the plaintiffs to go into the question whether there was or was not an actual adoption of Sundar Prasad by Singhesar Prasad.

On this question the learned Subordinate Judge heard the evidence and decided in very forcible language that there was nothing whatever in the case of Sundar Prasad. His judgment is perhaps to some extent vitiated by the extremely minute criticisms on small discrepancies in the evidence, but in view of certain broad facts I am of opinion that his opinion of the value of the evidence given should be accepted. One of the most important things to consider is the motive which might have actuated Singhesar Prasad to adopt at all.

Before the Land Registration Court and before the lower Court Sundar Prasad''s case was that Singhesar Prasad was 55 years of age at the time of the adoption and his wife 35 and that her eldest child was born when she was 28. But from the evidence given in the present case, it appears clear that Singhesar Prasad was in the prime of life at the time of his death. There was no reason to fear that his wife would not continue to bear children. In these circumstances the adoption itself seems to be an improbability. Next we have to consider what happened at the moment of Singhesar''s death. If Sundar Prasad was indeed the adopted son, adopted with the consent of Singhesar''s wife, there could be no reason why he should not forthwith assert that title. Yet when in order to defray the expenses of the sradh of Singhesar Prasad he needed money, Sundar Prasad executed a hand; note in which he described himself not as the adopted son of Singhesar Prasad but as his nephew. It does not appear that he took possession of the property, but the evidence upon that point is hopelessly meagre. The only witness called on Sundar Prasad''s behalf is Pariag Choudhury, who says that he paid rent to Sundar Prasad from the date of the adoption but is unable to produce any receipts to show that be did so. It seems to me clear that the adoption was not set up until after the lady had applied for registration and if indeed there had been an adoption recognised by all the members of the family, I think we should have found that the first in the field to claim registration would have been the adopted son and not the widow.

Upon all these considerations the learned Subordinate Judge was clearly right in regarding the evidence in support of the adoption with some suspicion. Upon examining that evidence we find that in the dakhil kharij case Sundar Prasad gave the names of seven persons as having been present at the adoption. The only one of these persons now called is Bhatu Misser. Ambica Pershad, Mahant Ganesh Das and the gotta Nemoo Narayan Singh, who claim now to have been witnesses to the adoption, were not mentioned as witnesses in the registration case. The three witnesses who were called in the registration case and also in the present case are the plaintiff himself, his priest Bhatu Misser and his patwari Bamdhani Lal. This Ramdhani borrowed money on Sundar Prasad''s behalf at the time of the sradh and described him as Singhesar''s nephew. In the midst of the litigation with the widow this Ramdhani wrote out another hand-note upon which Sundar Prasad, now described as the adopted son, pretended to borrow money for the marriage ceremony of the plaintiff Rambati Kuer. This document was obviously created for use as evidence in Sundar Prasad''s favour. It was Ramdhani also who wrote up accounts of the property. These accounts appear to me to be fabricated evidence of possession from the year 1314, The evidence of all the witnesses is upon one point absolutely inconsistent with the story told in the former case. In the former ease, it was alleged that the lady Makund Kuer was not present at any stage of the adoption. The explanation given of her absence was that she was too feeble in intellect to attend the ceremony. In the present case it is alleged that she is perfectly sane and that she was present at the adoption and that the defendant after being adopted made pranam to her. Witnesses capable of changing the story in this manner were also capable of inventing the story in its entirety. I agree with the learned Subordinate Judge that the evidence on the record not only does not show that there was ever any adoption but also leads to the certain conclusion that there was none. The plaintiffs are, therefore, entitled to the decree made by the learned Subordinate Judge, namely, that it be declared that the compromise entered into by Makund Koer is not binding upon them and that it be declared that the allegations made by Sundar Prasad Singh that he is the adopted son of Singhesar Prasad Singh are false allegations. This decision will not affect the position of the co-defendants Makund Kuer and Sundar Prasad. There has been no contest as between them upon this question. Makund Kuer has not herself contested the compromise into which she entered and subject to any other proceedings that may be brought, she will remain in possession of the half share of the estate during her lifetime and Sundar Prasad Singh will remain in possession of the other half share until her death.

The appellants will pay the costs of this appeal.

Jwala Prasad, J.

This is an appeal by defendant No. 1 Sundar Singh. He is a distant nephew of one Singhesar Prasad Singh. The plaintiffs are daughters of Singhesar Prasad Singh, and defendant No. 2 is his widow. Singhesar died in Jeth 1314. Upon his death a dispute arose between defendant No. 2 his widow and defendant No. 1 as to the succession to the property left by Singhesar.

The appellant asserted that he was adopted by Singhesar as his son about a year before his death. His claim was refused by the Land Registration Deputy Collector and the defendant No. 1 was registered in the Collectorate in respect of the property left by her husband Singhesar. The appellant thereupon brought a suit in the Civil Court against defendant No. 1 for declaration that he was the adopted son of Singhesar and for recovery of possession. That suit was finally settled between defendant No. 1 and defendant No. 2. A compromise petition was filed by the widow which was assented to by the appellant. By this compromise the widow admitted that the appellant was the adopted son of Singhesar and gave half the property left by Singhesar to him and retained to herself the other half which after her death would pass to her daughters the plaintiffs. On November 30th, 1910, the suit was decreed in terms of the aforesaid compromise petition.

The plaintiffs as reversioners of the estate of Singhesar have brought this action for a declaration that the appellant is not the adopted son of Singhesar Singh and that the compromise entered into by her is fraudulent, collusive and without any right, and that it is not operative and binding upon the plaintiffs after the death of defendant No. 2. The Subordinate Judge, who tried the suit, has decreed the suit and has awarded to the plaintiffs the above declarations sought by them. It is contended in appeal before us that the plaintiffs as remote reversioners have no tangible right in the estate during the lifetime of the widow and hence are not entitled u/s 42 of the Specific Relief Act, so long as the widow is alive, to a declaration that the adoption did not take place.

The adoption is alleged to have been made by the husband of the widow and in case it were true, the widow will lose her right to retain possession of the estate as heir to her husband. She has prima facie the best right to contest the adoption in her own interests as well as those of the reversioners. But the plaintiffs have been able to show that she in collusion with the appellant entered into a fraudulent compromise admitting his adoption and so failed in her duty to protect the interests of the reversioners. The plaintiffs, therefore, are entitled to seek in Court the protection of their reversionary interest which is so seriously menaced by the false adoption set up by the appellant and acquiesced in and acknowledged by the widow. It is settled law that in case of collusion and connivance by the widow as well as her failure to have an adoption set aside, the next reversioners have a right to have it set aside or declared invalid during the lifetime of the widow: Gurulingaswami v. Ramlakshmamma 18 M. 53 : 4 M.L.J. 237 : 6 Ind. Dec. 387; Govinda Pillai v. Thayammal 28 M. 57 : 14 M.L.J. 209; Ramabai v. Rangrav 19 B. 614 : 10 Ind. Dee. 410; Abinash Chandra Mazumdar v. Harinath Shaha 32 C. 63 : 9 C.W.N. 25 and Jhula v. Kanta Prasad 9 A. 441 : (1887A.W.N. 91 : 5 Ind. Doc. 730. Besides if the plaintiffs are compelled to defer their action to have the adoption set aside till the death of the widow which might be definitely prolonged, the lapse of the time might obliterate the evidence available to prove that the adoption did not take place. This difficulty is recognised by Article 118, Schedule I of the Limitation Act which requires that a suit to set aside an adoption should be brought within six years from the date of the knowledge of the adoption, although the right to the possession of the property has not accrued.

The plaintiffs, therefore, in the circumstances are entitled to have a declaration during the lifetime of the widow that the adoption set up by the appellant did not take place and that he is not the adopted son of Singhesar, the father of the plaintiffs Upon evidence the learned Subordinate Judge has held that Singhesar did not adopt the appellant. The near gotias of Singhesar named in the appellant''s deposition in the Land Registration case to be present at the adoption have not been examined in this case. The account book showing the expenses of the adoption has not been filed and there is no deed of adoption executed by Singhesar during his lifetime. It is remarkable that in a handnote executed after the death of Singhesar the appellant described him as his uncle, and not as his father. It is highly improbable that Singhesar would adopt a son when he and his wife were comparatively young. There is nothing to show that no son would have been born to him. He had already two daughters by his wife. I have not the least doubt that the Subordinate Judge was perfectly right in finding as a fact that the adoption did not take place.

It is next contended by the appellant that the claim set up by the appellant soon after the death of Singhesar and the litigation launched by him in the Civil Court to have himself declared as an adopted son of Singhesar was in itself a serious danger to the estate; that if the appellant had succeeded in that suit the estate would have been lost both to the widow and to the plaintiffs'' reversioners; that the widow as the holder of the entire estate, though having only a life-interest, was entitled to enter into a compromise by way of a settlement of the dispute as to the title to the estate; and that the settlement by her was made in the interest of the estate itself and is binding upon the reversioners. I do not accept these contentions as sound in the circumstances of the case.

It must be shown that the arrangement embodied in the compromise petition was a bona fide settlement of dispute in the interest of the estate. If the settlement was not bona fide, the plaintiffs, not being parties to the litigation and the compromise, would not be bound by it. This leads to a consideration of whether the adoption was likely to be established and to what extent it caused a menace to the estate. The claim based upon the adoption set up by the appellant was refused by the Land Registration Deputy Collector, so that at the time of the litigation in the Civil Court in the course of which the compromise was effected, the adoption had been rejected by a public officer, and no tangible material has been placed before us to show that there was any possibility of the claim being successful in the Civil Court. The mere laying of the claim would not justify a prudent widow to accept adoption and thus to prejudice the interest of the remote reversioners. The widow seems to have been duped and deceived into recognising the adoption and compromising the suit. The widow was a pardanashin lady. She was admittedly suffering occasionally from insanity and was actually insane at the time the adoption is said to have taken place. She had no advice in the matter of the compromise from the lawyers who were acting on her behalf in the conduct of the suit. The compromise petition was drafted by a mukhtear of the appellant himself and was filed by a Junior Pleader who was engaged the very day the petition was filed in Court. There is evidence that this mtkhtear bore questionable reputation and was accused of misappropriation of money which he had to deposit.

It appears that the appellant took advantage of the weak intellect and the occasional insanity of the musummat, and got this petition of compromise filed through an agent employed by himself. In the circumstances there is little room for doubt that the compromise was fraudulent and is not a voluntary act of the widow. The widow may have been actuated to enter into the compromise by a motive to secure to herself a personal advantage of enjoying half the property peacefully and free from the troubles of litigation. Such a compromise cannot be said to be a bona fide settlement of dispute in the interest of the estate and cannot bind the reversioners.

For the above reasons I entirely agree that the plaintiffs are entitled to both the declarations sought by them, viz , that the appellant was not the adopted son of Singhesar and that the compromise entered into by the widow is fraudulent and not binding upon them.

The appeal should be dismissed with costs.