ROY, J. - (1.) THESE are three connected First Appeals by the defendants. They arise out of a suit which had been instituted by two plaintiffs, Parmeshwar Dayal and Rai Amar Nath Agarwal, in which various reliefs were claimed inclusive of possession over certain property and mesne profits. Parmeshwar Dayal claimed as the nearest reversioner of Rai Partap Chandra who was the last male -holder of this property, and Rai Amar Nath Agarwal came as an assignee from Parmeshwar Dayal to the extent of 6/16th share in the said property by a deed dated the 21st of November, 1944, executed in his favour.
(2.) RAI Pratap Chandra, who was the last male -holder of this estate known as the Phulpur estate, was a twice -born Hindu governed by the Mitakshara School of Hindu Law. He was the only son of Rai Manik Chand. The collaterals of the family lived separate from them for a long period. Rai Pratap Chandra died on the 3rd of January, 1901 at the age of about thirty years, leaving behind his widow Rani Gomti Bibi aged about twenty -five years. Upon the death of Rai Pratap Chandra, she came into possession of the entire estate as a Hindu widow; and within six years of her husbands death, she made four transfers involving considerable property of the deceased. Two such transfers were evidenced by the document Ex. 70 dated 24 -11 -1901 and by the document Ex. 30 dated 17 -12 -1907 made in the form of gifts to Baldeo Prasad and Bhagwan Prasad who were members of the family of the spiritual Guru, covering property worth Rs. 1400/ - and Rs. 7,582/9/6 respectively, which had been held by defendants nos. 3 to 8 at the date of the suit. This property, although the subject of claim, was abandoned at the trial when the plaintiffs gave up their claim in respect of the same. The other two transfers made by her were evidenced by the document Ex. 20 dated 25 -9 -1902 and by the document Ex. A -5 dated 19 -8 -1904 by which she purported to endow properties worth Rs. 5,00,000/ - and Rs. 1,76,000/ - respectively to certain deities and to other charitable objects. Under both these deeds the constituted her brother Gaya Prasad as mutwalli and manager of the properties. In one of these deeds a salary of Rs. 250/ - per month together with certain other perquisites and allowances were given to Gaya Prasad; and in the other a salary of Rs. 100/ - per month were given to him. These two transfers were challenged in the suit on the ground that they were illusory, colourable and sham transactions, made without any authority with the object of benefiting the favourites of Rani Gomti Bibi and to defeat the reversionary interest in the estate. It would be necessary to give a brief history of the matter culminating in the present litigation. By a Notification dated July 17, 1920, Rani Gomti Bibi was disqualified to manage her estate; and under the U. P. Court of Wards Act of 1912 the Court of Wards assumed superintendence of so much of the said estate as was then recorded in the name of Rani Gomti Bibi after excluding the properties which were the subject of the aforesaid transfers of 1901, 1902, 1904 and 1907. During the management of, and superintendence by, the Court of Wards Rani Gomti Bibi under colour of an oral authority alleged to have been given to her by her late husband to adopt a son to him, adopted one Bindeshari Prasad, a boy of her husbands family, on the 21st of February, 1923. The adoption was made without the consent in writing of the Court of Wards despite the disability which attached to the ward under sec. 37(b) of the U. P. Court of Wards Act (No. IV of 1912), which enjoined that a ward shall not be competent to adopt without the consent in writing of the Court of Wards. The Court of Wards made an inquiry through the Collector of Allahabad as to the existence of the alleged oral authority of Rai Pratap Chandra. The Collector recorded the statements of the witnesses cited on behalf of Rani Gomti Bibi, and found that evidence so conflicting and unreliable that he was driven to the conclusion that the alleged authority did not in fact exist. The Court of Wards, therefore, refused to recognise the adoption. Rani Gomti Bibi had specified the names of seven persons before whom the alleged authority to adopt had been given. But out of those persons three were dead. Of the persons who were alive. Mr. Kanhaiya Lal, the legal adviser of the family, did not appear before the Collector as a witness. The statements of the other three who were examined by the Collector were, according to the Collector, "conflicting, unacceptable and unreliable." The Collector, therefore, reported against the permission; and the Board of Revenue refused to grant consent under sec. 37 of the Court of Wards Act to Rani Gomti Bibi to adopt a son. In making that refusal the Board of Revenue and the Court of Wards had kept in view the guiding principles contained in sec. 37, which provided that the Court of Wards shall not withhold its consent if the adoption is not contrary to the personal law applicable to the ward and does not appear to cause pecuniary embarrassment to the property or to lower the influence or respectability of the family in public estimation.
(3.) IT may be stated here that the exercise of any discretion conferred on the Court of Wards by Sec. 37 of the Act could not be questioned in any civil court in view of Sec. 53 of the same Act. Rani Gomti Bibi had adopted Bindeshari Prasad without earing to obtain the sanction of the Court of Wards. The sanction which she sought from the Court of Wards or the Board of Revenue after making that adoption was, therefore, not in the nature of a sanction to make an adoption but in the nature of something to put a seal to the adoption already made. Indeed the anxiety on the part of Rani Gomti Bibi, influenced as she was by her brother Gaya Prasad, to stick to that adoption in spite of the infraction of the provisions of Sec. 37 of the Act was so keen that in the proceedings before the Collector in 1923 she had to resort to conflicting and untrue submissions, at one time saying that "she had really adopted Bindeshri Prasad on 21 -2 -1923" and at another time saying that in view of the permission to adopt given to her by her husband she allowed Bindeshri Prasad to live in her house from the 21st of February 1923, and that she desired to perform the rights and ceremonies according to law in the month of Baisakh next. These latter and inconsistent allegations were made by her in her petition dated the 13th of March, 1923, to the Collector, and it was later on sought to be explained on her behalf in Suit No. 245 of 1925, to which she was a party, by the affidavit Ex. 37 of her servant Ramdhan, who stated that at the time of sending the petition dated 13 -3 -1923 she got it written by Bishambhar Nath, her Sarbrahkar, who had suggested the contents and had advised her that if she stated that the adoption had already taken place, the Court of Wards might blame her for taking that step without reference to them and that, acting upon that advice and thinking that it would facilitate the securing of the permission of the Court of Wards, she agreed to submit that petition. Be that as it may, the affidavit Ex. 37 referred to above furnished proof of the fact that Rani Gomti Bibi was prone to influences and was susceptible to advancing wrong allegations in order to suit the exigencies of the situation. ;