P L D 1963 Dacca 896 (PLP)

26. By para. 3 of Exh. 1, will of Paju Pal, it has been provided that in the absence of the testator Paju Pal all his immovable properties will devolve absolutely on the adopted son to be adopted by Jamini Sundari Dasya widow of his adopted on Brindaban in accordance with the permission given to her by his adopted son Brindaban.

27. By para. 4 Hara Sundari Dasya widow of the testator and Jamini Sundri Dasya were appointed executrix to continue as such till the son to be adopted as stated above attained the age of 18.

28. By para. 6 it has been provided that if the testator's daughter‑in‑law Jamini dies before adoption or if she adopts a son but he dies before marriage or if the adopted son marries but dies childless in that case the properties will devolve on the deities placed by him.

29. I have already noted that Brindaban the adopted son of Paju Pal died on 20‑5‑1912, that after the death of his son Brtndaban Exhs. 1 and 2 were executed by Paju Pal on 14‑7‑1912 that shortly thereafter the testator died on 27‑7‑1912 and that Brajaraj husband of the defendant was not adopted by Jamini Sundari during the life‑time of the testator but on 8‑7‑1920, that is about 8 years after the death of the testator.

30. Now the question is whether vesting of right in the deities could be kept in obeyance for indefinite time and whether Brajaraj inherited the secular properties of Paju Pal by virtue of Exh.

1. This calls for a consideration of some of the provisions of the Succession Act and that of Hindu Law.

31. According to section 124 of the Succession Act which provides: "Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable." Brajaraj could not have taken the legacy as no time was men tioned in the will for the occurrence of the uncertain event, namely adoption of Brajaraj by Jamini Sundari and as the same did not happen during the life time of Paju Pal the testator but happened about 8 years after the death of the testator and accordingly in view of the provisions of section 181 of the Succession Act, which is as follows: "(1) A bequest may be made to any person with the con dition superadded that in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person." the legacy went to the deities.

32. To meet this Mr. Roy the learned Advocate for the appellant has contended that though in view of the aforesaid provisions Brajaraj could not have taken the bequest on the facts found but in view of the provision of Hindu Law the moment Brajaraj was adopted by Jamini Sundari, Brajaraj will be con sidered as to have been adopted during the life‑time of Brindaban and alive then and on the death of Paju Pal the testator and as such the said Brajaraj took the legacy under the Will and the second bequest, that is the gift over to the deities failed. For this proposition of law he has relied on the cases of Pratapsing Shivoing and another v. Asarsingji Raisingji (46 I A 97); Bobu Anoji and another v. Ratnoji Krishnara (I L R 21 Bom. 319); Kidson v. Marasdan (2 C D (1912) 335). In Rcparry and Daggs reported in (1886) 31 C D 130 and the case of Suresh Chandra Palit and another v. Lalit Mohan Dutta (20 C W N 463). Now let us see whether the above contention sound.

33. We get the following passages at page 250 of the Mayne's Hindu Law and Usage, seventh Edition. "But the decision itself, coupled with the other cases cited, seems to lead to the following conclusion : First, where an adoption is made to be last male‑holder, the adopted son will divest the estate of any person, whose title would have been inferior to his, if had been adopted prior to the death. Secondly, where the adoption is not made to the last male‑holder, but is made by the widow of any previous holder, it will, if in other respect vaiid, divest her estate. Thirdly, under no other circum stances will an adoption made to one person divest the estate of any one who has taken that estate as heir of another person. All these rules seem to be consistent with natural justice."

34. The following passages at page 20 of Mulla's Hindu Law, 11th Edition, is relevant: "On the death of a Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferable heir, where such heir was not conceived at the time of the owner's death." Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain case of a son to the deceased." At page 574: "Generally:‑( A I R 1954 S C 379) A widow's power to adopt continues all her life‑time‑ (i) in all cases where her husband has died without leaving any son (ii) in cases where her husband has left a son, if the son dies leaving her (his mother) as his nearest heir. In the first case, the widow succeeds to the estate as her husband's heir in the second case, she succeeds to the estate as the heir of her son (i.e. as his mother). In either case, the estate vests in her, in the one case immediately on the death of her husband, in the other case, immediately on the death of her son. By adoption she divests no estate except her own. But vesting or divesting is no longer of importance." At page 601: "The question then arises whether the adopted son is entitled to the estate of his adoptive father in whose so ever's hands it may be at the date of adoption. The answer is in the negative, he is entitled to it in certain cases only these being the cases set forth in section 502 below." At page 602: "Divesting of estate of inheritance.‑Where a widow adopts, one of the objects of adoption is to perpetuate the adoptive father's name by securing an heir. It now remains to be seen how far this object is attained. In the cases mentioned in section 471 (1) the adoption is valid. The widow divest herself and the adopted son gets the property. In the cases mentioned in section 471 (2) (a) the adoption is invalid. No question of divesting the estate arises. But a valid adoption does not divest the estate of 'a person other than the adoptive father which had passed to his heir prior to his adoption, even if the adopted son might have succeeded to it if the adoption had been made earlier, (i.e.) prior to the opening of the succession." In the case of Srivivas Krishaarao Kango v. Narayan Devji Kango and others (1) we find the following passage at page 385 of the report, which was quoted with approval. In 1888 Golapchandra Sastri observed in his Tagore Law Lectures on the Law of Adoption: As regards collateral succession opening before adoption it has been held that an adoption cannot relate back to they death of the adoptive father so as to entitle the adopted son to claim the estate of a collateral relation, succession to which opened before his adoption. (Vide pages 413 and 414). "The law was thus well‑settled that when succession to the properties of person other than an adoptive father m as involved, the principle applicable was not the rule of relation back but the rule that inheritance once vested could not be divested." The relevant portion of paragraph 17 as to the said right runs as follows: "Thus far, the scope of the principle of relation back is clear. It applies only when the claim made by the adopted s:)n relates to the estate of his adoptive father. This estate may be definite and ascertained as when he is the sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the co‑partners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. The point for determination now is whether this doctrine of relation back can be applied when the claim made by the adopted son relates not to the estate of his adoptive father but a collateral. The theory on which this doctrine is based is that there should be no hiatus in the continuity of the line of the adoptive father. That, by its very nature, can apply only to him and not to his collaterals." Page 25: "It is not in consonance with the principle well‑established in Indian Jurisprudence that an inheritance could not be in abeyance, and that the relation back to the right of an adopted son is only `quoad' the estate of the adoptive father. More over, the law as laid down therein leads to results which are highly, inconvenient. When an adoption is made by a widow of either a co‑partner or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purpose, binding on the estate. Thus, transferees from limited owners, whether they be widows or co‑parceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled to the theory of relation back to divest that property, the position of the means holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from his would have no protection, as there could be no question of supporting the alienations of the ground of necessity or benefit. And if the adoption takes place long after the succession to the collateral had opened in this case is was 41 years, thereafter and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not be extended so as to lead to unjust result."

35. From the authorities on Hindu Law it appears to me that when a widow is empowered to adopt a son, she cannot be) compelled to act upon it unless she likes. Consequently vesting of inheritance cannot be suspended until she exercises her right in adoption. Furthermore this right she may exercise or may not exercise. If she does not exercise the right, there is no divesting or vesting of any property in any way but trouble arises when she chooses to exercise that right and adopt. It further appears that authorities did not extend the theory of birth by fiction of law 'to inheritance and divesting of property already vested in another person. Rather in certain cases, namely, in the case of adoption by the widow herself it has been held that the adoption being her own action and out of her volition, she can be divested. From the authorities on the Hindu Law, it further appears that the objects of adoption are two‑fold one to secure spiritual benefit to the adopter and his ancestors and another secular, to secure an heir and perpetuate the adopter's name. By legal fiction, the adopted son is to be born on the date of the death of the adoptive father but there are divergent views on the effect on inheritance by adoption etc. From the authorities quoted above, it is clear that the fiction of law on the question of birth or adoption should not be extended equally on the question of devolution and divest of properties and spiritual benefit by continuing the life, as the claim of the adopted son to divest a vested estate rests on a legal fiction and if the legal fictions be extended, it will lead to unjust results which should not be allowed that question of divesting of the estate of any person will not arise when the adoption is not made to the last male‑holder ; that in case of adoption by the widow or widow's mother it will divest them when the properties are already vested in them subject to valid transfer ; that in no other circumstances will and adoption made to one person divest the estate of any one who has taken that estate as heir of another person.

36. In the present case before me after the death of Paju Pal, the properties described in (Ka) schedule vested absolutely in the deities as there was no adoption during the life time of the testator, namely, when the succession opened but the adoption was 8 years thereafter. The deities had the right, properties being vested in them to deal with the properties in any way without interference of any person outside. Then again the adoption was not to the last male holder, namely, Paju Pal but it was to his predecessor son Brindaban. So in any way according to the authorities cited there can be no divesting of the properties already vested in the deities. To accept the theory of birth by fiction on the death of the testator as in the present case and inheritance Will offend the rules against perpetuity, equity and natural justice. Furthermore, by adoption by Jamini in the present case, she was not divesting herself of her property as it did not vest in her. But she was trying to divest the deity, third party, which is against natural justice and furthermore power to adopt was not given by Paju Pal to her but it was given by Brindaban, the husband of Jamini who died on the 20th May 1912, whereas adoption took place in 1920. For the aforesaid reasons, I am of opinion that on the death of Paju Pal the property described in schedule I vested in the deities and on adoption by Brajaraj by Jamini's 81 years after the death of Paju Pal did not divest the deities of the properties already vested in it. Similarly Shebait ship also vested in Surebala Dasya, the plaintiff.

37. Mr. T. H. Khan, the learned Advocate for the defendant Nos. 2 Ka to Kha purchasers from Ram Dasi pressed some points but as there is no cross‑objection filed by him, his contention cannot be considered. His fate will be determined by the fate of the defendant No. 1.

38. The appeal is accordingly dismissed with costs to the plaintiff ‑respondent. Leave to appeal under Clause 15 of the Letters Patent prayed for is granted. S. B./A. H. Appeal dismissed.