Charles Dickson Field, J.

1. The plaintiff in this case is ah adopted son and is stilla minor. He sues to recover possession of certain lands which he alleges to bea portion of an estate which belonged to Uma Churn, his adopted father. Theonly point with which we have to deal upon this appeal is, whether the minorhas a good title as adopted son. All the questions of fact have been found inhis favour by the Courts below; and there is now no question as to these factsbefore us.

2. Uma Churn had three wives; with one of these ladies wehave no concern. The two wives with whom we are concerned are Nobo Sundari andGaya Sundari. Gaya Sundari was the mother of Hur Cumar, and Hur Cumar, upon UmaChurns death, succeeded to his property. Hur Cumar died unmarried and duringminority; and his mother Gaya Sundari died before him. Upon Hur Cumars deathsGaya Sundaris co-wife, Nobo Sundari, in the exercise of an anumatipotro, orpower of adoption granted to her by Uma Churn, adopted the present plaintiff.

3. It has been contended before us on the part of theappellant that, inasmuch as upon Hur Cumars death, his grandmother Surjomoni,mother of Uma Churn, was his heiress, the property vested in her as such; thatthe subsequent adoption of Shama Churn by Nobo Sundari could not have the effectof divesting the inheritance which had once vested; and that therefore ShamaChurn has no title to the property by virtue of which he can maintain thissuit. This argument is based upon the decision of the Privy Council in the caseof Bhoobun Moyi Debi v. Ram Kishore Acharji 10 Moores I.A. 279 and thesubsequent case decided by this Court--Kally Prosonno Ghose v. Gocool ChandraMitter I.L.R. Cal. 295. See also the case of Nil Komul Lahuri v. Jotendro MohanLahuri I.L.R Cal. 178. In none of these cases did the exact point which hasbeen raised before us occur. But this very point did occur in another casewhich was not quoted in the course of the argument, the case of Annammah v.Mabbu Bali Reddy 8 Mad. H.C. 108. We entertain no doubt that upon the authoritiesthe decision of the bare question of Hindu law would be fatal to the success ofthe plaintiffs case if it had to be decided upon this bare question alone. Theadoption by Nobo Sundari having taken place after the estate had vested inSurjomoni upon the death of Hur Cumar, the subsequent adoption could not havethe effect of divesting the estate once so vested. But it is said that thereis something more than the anumatipotro, that the case is to be decided notupon the anumatipotro alone, but upon the anumatipotro taken with a will madeby Uma Churn, probate of which will has since been granted. In the case ofBhoobun Moyi Debi v. Bam Kishore Acharji 10 MI.A. 279 their Lordships of thePrivy Council observed that they were dealing with an anumatipotro only andwithout reference to any testamentary disposition, or the possible effect ofsuch a disposition. They said: "Whether under his testamentry power ofdisposition Gour Kishore could have restricted the interest of Bhowanee Kishorein his estate to a life interest, or could have limited it over (if his sonleft no issue male, or such issue male failed) to an adopted son of his own, itis not necessary to consider; it is sufficient to say that he has neither donenor attempted to do this; "and then further on" No case has beenproduced, no decision has been cited from the Text Books, and no principle hasbeen stated to show that by the mere gift of a power of adoption to a widow,the estate of the heir of a deceased son vested in possession, can be defeatedand divested." But it is contended that upon the true construction of thiswill, the testator did not intend to make any provision for the event which hadactually taken place. The clause of the will runs to this effect: "If myexisting son, i.e., Hur Cumar, should die, and if no son of my loins should beborn, then my wives, in the exercise of the power of adoption given to each ofthem for adopting three sons each, shall adopt sons, and such sons shall takethe estate." It is argued that the testator was speaking with referenceonly to the state of things at the time of his death; and that what was in hismind was the event of the Vartamana Putra existing son, dying during hislifetime, not being in existence at the time of his death: and that he did notcontemplate the event which has actually happened, i.e., the case of this sondying after his death. We have to observe that it is sought to raise thisquestion, not between rival claimants to the inheritance, but between astranger and a person who is in possession of that inheritance, havingsucceeded thereto with the consent and acquiescence of Surjomoni, the onlyperson who would be entitled to maintain a construction of the will adverse tothe present plaintiffs title. We think that a stranger has no right in thisway to seek out a flaw in the plaintiffs title and impugn the validity of thattitle.

4. There is evidence in the case to show that Surjomoni hasacquiesced in the plaintiffs title; she acted as his guardian in bringing thepresent suit; and at her instance the minors name was registered under theLand Registration Act. According to a possible and probable construction, thewill has given the inheritance to the plaintiff, and we think that a strangeris not entitled to come in and say that under another construction, not set upby the person who would benefit thereby, that person and not the plaintiff isthe rightful owner. We are, therefore, of opinion that this appeal must bedismissed with costs.

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Shama Churn Chowdhryvs. Drobomoyee Chowdhrain and Ors.(13.05.1885 - CALHC)