BHIKABAI GHATU BHANGE Vs. GOJA MHAKU BHANGE

JUDGEMENT

(1.) The plaintiff, who was the widow of one Mhaku, filed this suit against Defendant No. 1, who was the widow of the elder brother of Mhaku, one Ghatu, and Defendant No. 2, wham Defendant No. 1 said she had adopted to her husband. Before the trial Court and the appellate Judge the main question appears to have been which of the brothers died first. The appellate Judge, differing from the trial Judge, found that the elder brother Ghatu died first, so that the plaintiff, as the widow of his surviving brother, would take the estate, and ordinarily the adoption by Defendant No. 1 to Ghatu would be invalid.

(2.) The adoption is said to have taken place in 1923, nearly five years after the death of the brothers, and it was not suggested in the pleadings that Defendant No. 1 was authorized by her husband to adopt. If that had been suggested in the pleadings, undoubtedly an issue would have been raised, and it would have been decided whether Ghatu had authorised his widow to adopt, because, if the authorization was proved, then it would not make any difference which of the brothers died first.

(3.) Now that the. defendants have lost in both Courts, they ask this Court to direct that an issue should be raised and sent down to the trial. Court for hearing on the question whether Ghatu had authorized his widow to adopt. In Ram Chandra Bhanj Deo V/s. Secretary of State [1916] 43 Cal. 1104 their Lordships of the Privy Council dealt with this question, and said at p. 1110: Even if it be competent to the High Court to remit a case for re-hearing on an issue not raised in the pleadings or even suggested in the Courts below, this ought only to be done in exceptional cases for good cause shown and on payment of all costs thrown away. In the present case the respondent showed no ground whatever for the indulgence he claimed. He did not suggest that he had been in any way taken by surprise or had discovered fresh facts of which he was unaware when the case was before the lower Courts.