Judgement Consolidated Appeals from three decrees of the High Court (May 22, 1913), two of which affirmed decrees of the Court of the first Subordinate Judge of Saran, and one of which modified a decree of that Court. The three suits out of which the consolidated appeals arose were brought in 1907 by Dhanukhdhari Prashad Singh against Musammat Bhagwat Koer and Ragheshwar Indar Sahi, whom she had purported to adopt to her deceased husband Mahabir Singh ; a second plaintiff, a purchaser to whom it is not necessary to refer further, was joined as a plaintiff in the second and third suit. The facts giving rise to the litigation appear from the judgment of their Lordships. The nature of the suits and the decisions arrived at by the Subordinate Judge and the High Court (which heard the three appeals together) were shortly as follows. Suit No. 200 of 1907 was to set aside the adoption. Both Courts held that in the events which happened the adoption was not authorized by the will of Mahabir, and the adoption was accordingly set aside. Suit No. 198 of 1907 was for a declaration that under the will of Mahabir and in the events which happened, Dhanukhdhari was entitled to immediate possession of Mahabirs estate. In this suit the rights of the parties depended entirely upon the true construction of the will of Mahabir, the material parts of which are set out in the judgment of their Lordships. Both Courts held that under that will Dhanukhdhari would be entitled only upon the death of Bhagwat Koer and that the suit for immediate possession failed ; the High Court varied the decree by striking out a declaration under s. 42 of the Specific Relief Act, 1877, that Dhanukhdhari was entitled to succeed upon the death of Bhagwat Koer. Suit No. 199 of 1907 In this suit Dhanukhdhari claimed that Jugalkishore who died in 1872, died separate, and that he (Dhanukhdhari) was entitled to succeed to the deceaseds estate upon the death in 1904 of Anandi Koer, the deceaseds widow. Both Courts found (contrary to a decision given in 1874 in proceedings under Act XXVII. of 1860) that in 1864 there had been a partition between Jugalkishore and his brothers, and held that Anandi Koer was therefore entitled to the estate for her life, and that upon her death Dhanukhdhari succeeded as reversioner. Both Courts found (contrary to a decision given in 1874 in proceedings under Act XXVII. of 1860) that in 1864 there had been a partition between Jugalkishore and his brothers, and held that Anandi Koer was therefore entitled to the estate for her life, and that upon her death Dhanukhdhari succeeded as reversioner. The High Court affirmed the view of the trial Judge that the ekrarnama executed in 1874 on behalf of Bhagwat Koer, the terms of which appear from the judgment of their Lordships, was invalid on the ground that it was not within the authority of her agent, that it was obtained by corruption, and had not been ratified by her. It was accordingly unnecessary for the High Court to consider what would have been the legal effect of that agreement. The learned judges (Chitty and Teunon JJ.), however, said " the document in itself does not in our opinion amount to such a surrender or relinquishment as the defendants contend. It amounts simply to an admission that the three brothers were joint, an admission which clearly would not bind the plaintiff, even if it had been made. No doubt Anandi Koer, who lived for some 30 years after these events, was content to receive the maintenance, but there is nothing to show that she had independent advice or was ever really informed of her rights in the matter." They rejected a plea of limitation, pointing out that under Art. 141 of Sched. II. of the Indian Limitation Act, 1877, the period within which Dhanukhdhari as reversioner could claim was 12 years from the death of Anandi Koer, and that it was not material that Anandi had allowed a claim by her to become barred. In the result Dhanukhdhari was given a decree. The first and the third of the present appeals (namely, those in suits No. 200 and No. 199), were by Bhagwat Koer and the adopted son, and the second (namely, that in suit No. 199) was by Dhanukhdhari. 1919. May 19, 20. De Gruyther K.C. and Dube for the appellants, Bhagwat Koer and the adopted son. As to suit No. 200 The adoption was valid. The terms of Mahabirs will showed an intention that.his widow should adopt in the event of there being nobody to perpetuate the family Kannepalli Suryanarayana v. Pucha Venkata Romana(( 1906) L. R. 33 I. A. 145.); Lakshmibai v. Rajaji. As to suit No. 200 The adoption was valid. The terms of Mahabirs will showed an intention that.his widow should adopt in the event of there being nobody to perpetuate the family Kannepalli Suryanarayana v. Pucha Venkata Romana(( 1906) L. R. 33 I. A. 145.); Lakshmibai v. Rajaji. (( 1897) I. L. R. 22 B. 996.) Upon the true construction of the will, the posthumous daughter not having survived the widows, the power to adopt was not excluded. In construing the will effect should be given to the belief of Hindus in the religious efficacy of an adoption Hunoomanpersaud’s Case (( 1856) 6 Moo. I. A. 393, 411.); Mahomed Shumsool v. Shewukram. (( 1874) L. R. 2 I. A. 7,14.) If the will is construed as the respondent contends, the power to adopt is excluded by the birth of a son although he should die before attaining capacity to continue the line ; that would be a limitation upon the power contrary to the general principle Madana Mohana Deo v. Purushothama Deo. (( 1918) L. R. 45 I. A. 156.) As to suit No. 199 It is conceded that the decision upon the proceedings under Act XXVII. of 1860 that there was no partition is not a res judicata Run Bahadoor Singh v. Lachoo Koer. (( 1884) L. R. 12 I. A. 23.) That decision was right. But if, having regard to the concurrent findings, the partition is to be regarded as established, Bhagwat Koer succeeds her adopted son. Even if the adoption was not valid Dhanukhdhari has now no right to succeed as reversioner to Jugalkishore, since the agreements by Anandi in 1874, and her long-continued acceptance of maintenance, amounted to a complete relinquishment of the estate to Mahabir, the then next reversioner. The respondents are thereby excluded Rangasami Gounden v. Nachiappa Gounden (( 1918) L. R. 46 I. A. 72.) ; Debi Prosad Chowdhury v. Golap Bhagat. (( 1913) I. L. R. 40, C. 721.) A surrender is effectual although the widow is granted maintenance out of the estate Noferdoss Roy v. Modhu Soondari Burmonia, (( 1880) I. L. RC5 C. 732.) Upjohn K.C., Sir William Garth and Parikh for the respondents. Suit No. 200 of 1907 Upon the plain terms of the will there was no power to adopt, since a daughter was born to the testator. Suit No. 200 of 1907 Upon the plain terms of the will there was no power to adopt, since a daughter was born to the testator. Suit No. 199 of 1907 Under the will of Mahabir his post-humous daughter, by s. 106 of the Indian Succession Act (X. of 1865), applied to Hindus by s. 2 of the Hindu Wills Act (XXI. of 1870), took an absolute estate of which possession was postponed during her minority. That effect is not excluded by the terms of the will. Upon the death of the posthumous daughter the estate passed to her mother for the estate of a Hindu widow, and upon her mothers death to Dhanukhdhari. In any case he was entitled to a declaration under s. 42 of the Specific Relief Act (I. of 1877) that the daughter took a vested interest. Suit No. 198 of 1907 he transaction of 1874 did not amount to a relinquishment of the estate by Anandi. It was not entered into by her in the exercise of her power as a Hindu widow over her husbands estate. It was merely a compromise of her claim as against the estates of the three deceased brothers. To be an effectual relinquishment the widow must have a knowledge of her rights over the estate and an intention completely to relinquish those rights. Dube in reply referred, on the question of the construction of the will, to Radha Prosad Mullick v. Ronimani Dassi(( 1908) L. R. 35 I. A. 118.); and, as to Dhanukhdharis right to a declaration, to Sheoparsan Singh v. Ramnadan Singh (( 1916) L. R. 43 I. A. 91.) and Janaki Ammal v. Narayanasami Aiyer. (( 1916) L. R. 43 1. A. 207.) Upjohn K.C. replied in the cross-appeal. June 30. The judgment of their Lordships was delivered by VISCOUNT CAVE. These are consolidated appeals against three decrees of the High Court of Calcutta dated May 22, 1913, two of which affirmed decrees of the First Subordinate Judge of Saran dated respectively March 17 and May 12, 1910, while the third modified a decree of the same Court dated July 18, 1910. The facts leading up to the litigation may be shortly stated as follows Srikishun Singh, Bachchu Singh and Jugalkishore Singh were three Hindu brothers governed by Mitakshara law and possessed of considerable properties in the districts of Saran and Gya and in Oudh. The facts leading up to the litigation may be shortly stated as follows Srikishun Singh, Bachchu Singh and Jugalkishore Singh were three Hindu brothers governed by Mitakshara law and possessed of considerable properties in the districts of Saran and Gya and in Oudh. Jugalkishore died on July 5, 1872, without issue, leaving a widow Musammat Anandi Koer ; Srikishun died on July 18, 1872, without male issue, leaving a widow and two daughters ; and Bachchu died on February 9, 1874, leaving a son, Mahabir Singh. After Jugalkishores death Bachchu applied to the District Judge of Saran, under Act XXVII. of 1860, for a certificate to collect debts due to the estate of Jugalkishore, alleging that the three brothers had been joint in estate and that he was entitled as survivor to Jugalkishores estate. This application was opposed by Jugalkishores widow, Anandi Koer, who claimed that a partition between the three brothers had been effected in the year 1864 and accordingly that at the date of her husbands death the brothers were separate and she was entitled to succeed to her husbands estate. Bachchu died while this dispute was pending, but in the result the District Judge decided that the alleged partition had not taken place and accordingly that the three brothers were joint, and granted the certificate to Mahabir. This decision, being given only upon a question of representation, did not preclude Anandi Koer from raising the question of title again in a suit properly instituted for that purpose ; but in fact Anandi, acting through her brother and attorney, accepted the decision and executed an agreement dated May 17, 1874, agreeing, in consideration of certain property being allotted to her for maintenance during her life, not further to contest the matter ; and thereupon Mahabir took possession of the estate. This transaction, the effect of which is in dispute, will be referred to at greater length hereafter. Mahabir died on June 21, 1894, leaving no issue but leaving two widows, the defendant Musammat Bhagwat Koer and Musammat Rupkali Koer, the latter of whom was then enceinte, and gave birth, on October 11, 1894, to a daughter named Ramdulari Koer. Mahabir before his death executed a will (to be referred to later) probate of which was, on January 5, 1895, granted to his two widows. The posthumous daughter. Mahabir before his death executed a will (to be referred to later) probate of which was, on January 5, 1895, granted to his two widows. The posthumous daughter. Ramdulari, died on June 4, 1895, her mother, Rupkali, on February 8, 1899, and Anandi, the widow of Jugalkishore, on August 4, 1904. On February 13, 1906, Bhagwat Koer, the surviving widow of Mahabir, purporting to act under a power conferred upon her by her husbands will, adopted the defendant Ragheshwar Indar Sahi as his son and executed in his favour a deed of adoption dated February 17, 1906. The plaintiff Dhanukhdhari Prashad Singh is the nearest reversionary heir to Jugalkishore and Mahabir, and claims to be entitled to their estates ; and on August 20, 1907, he instituted the three suits out of which these appeals arise against the surviving widow and the alleged adopted son of Mahabir in the court of the First Subordinate Judge at Saran. One Ambika Prashad Singh, the purchaser of a part of the property, joined as co-plaintiff in two of the suits, but need not be further referred to. The causes of action in the three suits are different, and it will be convenient to deal with them separately. In suit No. 200 of 1907 (out of which Appeal No. 100 of 1916 arises) the plaintiff Dhanukhdhari sued to set aside the adoption of the defendant Rageshwar as invalid and contended that the power of adoption conferred by the will of Mahabir had, in the events which had happened, no operation. The terms of that will must now be referred to in detail. The will of Mahabir, which was dated December 20, 1894, was divided into paragraphs. By para. 1 the testator, after reciting that he had then no male issue but had two wives living, directed that if any child should be born of either wife, or if children should be born of both wives, they should after his death become possessors of all his movable and immovable pro perties, whether ancestral or self-acquired, whereby the name and reputation of his ancestors might be perpetuated and the religious merit of his family might be preserved. By para. 2 he directed that if at the time of his death his children should be minors his wives successively should act as their guardians and manage the estate. By para. 2 he directed that if at the time of his death his children should be minors his wives successively should act as their guardians and manage the estate. It was contended that, although the word " children " (aulad) is used in the above two paragraphs, they were in fact intended to operate in favour of male children only ; but it is unnecessary to determine this question, .as in any event the first two paragraphs are controlled, so far as female issue are concerned, by the third paragraph of the will. The third and fourth paragraphs of the will are in the following terms "3. If there be no son born of either of my wives and only (a) daughter be born, in such a case also the management of the reasat shall be conducted by either the senior or the junior wife whoever may be existing and her (the daughters) guardianship and training and education shall be conducted as provided in paragraph 2. She will have the daughter married in a good family as is the custom in my family. My wives up to the terms of their respective lives shall remain proprietresses and possessors as provided in paragraph 2. After the death of both of them my daughter shall become the proprietress, and she shall perpetuate the name and reputation of my family by residing in my house and maintaining the same as the absolute proprietress. 4. If by the will of Providence no male or female child be born to me, in that case-both my wives, one after another as provided in paragraph 2, shall remain, in concord, proprietors and managers and perpetuate the name and reputation of the family up to the terms of their lives. 4. If by the will of Providence no male or female child be born to me, in that case-both my wives, one after another as provided in paragraph 2, shall remain, in concord, proprietors and managers and perpetuate the name and reputation of the family up to the terms of their lives. I also authorize my wives that, if both of them exist, they in, concurrence, or if either of them die the surviving wife alone, shall select according to her choice some worthy boy from my family or the families of my relatives and adopt him, who shall remain obedient and dutiful as a son up to the terms of the lives of my wives ; and the said adopted son after the death of my two wives shall remain absolute proprietor in my place as my son, and he shall have all authority such as is possessed by me." In the suit now under consideration it was contended by the plaintiff that under the express terms of the will the power of adoption conferred by para. 4 was contingent on no male or female child being born to the testator, and that as a daughter was born to him (although after his death) the power of adoption never arose. He also contended that Ragheshwar was not a member of the class, consisting of the testators family (khandan) or the families of his relatives, from which alone any adoption could be made. Both these contentions were upheld by the Subordinate Judge, who accordingly set the adoption aside ; and on appeal the High Court, while holding that Ragheshwar was within the class described in the will, agreed with the Subordinate Judge in holding that in the events which had happened the power of adoption did not arise, and accordingly dismissed the appeal. On appeal by the defendants to this Board the appellants relied on the strong presumption that the testator, a Hindu, would have desired that, in the event (which happened) of his having no child who survived him and attained maturity, a son should be adopted to him by his widow, and contended that the will must be construed as having that effect. The presumption is no doubt strong, and in a case of this kind the Courts would not be astute to defeat an adoption not clearly in excess of the power ; but in the present case it appears to their Lordships to be impossible, without unduly straining the words of the will, to put upon it the construction contended for on behalf of the defendants. The words " if no male or female child be born to me " clearly govern the whole of para. 4 of the will, including the power of adoption ; and it is impossible without going outside the terms of the will and in fact making a will for the testator, to hold that in the events which happened the power took effect. The result is that the decision of the High Court in this suit is right and that this appeal must fail. In the suit No. 198 of 1907 (out of which Appeal No. 131 of 1916 arises) the plaintiff Dhanukhdhari sued for a declaration that under the terms of the will of Mahabir and in the events which had happened the plaintiff was entitled to immediate possession of Mahabir’s estate. He based is claim on the contention that on the true construction of para. 3 of the will the widows were only entitled to be guardians of the testators daughter and to manage the estate during her lifetime, and that upon her death the estate passed to her mother Rupkali and on the death of the latter to the plaintiff. The Subordinate Judge held that, on the true construction of para. 3, the widows took life estates in succession and that on the death of the surviving widow the property passed to Ramdulari or her representatives under s. 106 of the Succession Act. He therefore dismissed the claim for possession, but added to his judgment a declaration, under s. 42 of the Specific Relief Act, of the right of the plaintiff as heir of Ramdulari to succeed to the estate of the testator after the death of the surviving widow Bhagwat Koer. He therefore dismissed the claim for possession, but added to his judgment a declaration, under s. 42 of the Specific Relief Act, of the right of the plaintiff as heir of Ramdulari to succeed to the estate of the testator after the death of the surviving widow Bhagwat Koer. Both sides having appealed to the High Court, that Court affirmed the decree of the Subordinate Judge dismissing the suit for possession, but struck out the declaration as to the plaintiffs reversionary right, holding that his plaint contained no claim for such a declaration and that the plaintiff had not made out his title to succeed to the estate of Ramdulari. The plaintiff thereupon appealed to this Board. Their Lordships agree with the decision of the High Court in this case. They are satisfied that on the true construction of the will and in the events which happened the estate was given to the testators widows successively for life, and after the death of the survivor to Ramdulari, so that Ramdulari became entitled at birth to a reversionary estate under s. 106 of the Succession Act ; but the ^plaintiff has not in this suit adduced evidence proving his claim to be entitled to her estate, and accordingly no declaration should be made in his favour under the Specific Relief Act. This appeal, therefore, also fails. In the suit No. 199 of 1907 (out of which Appeal No. 117 of 1917 arises) the plaintiff sued to recover the estate of Jugalkishore, alleging that in the year 1864 the three brothers, Srikishun, Bachchu and Jugalkishore separated and partitioned their properties between them, and that accordingly on the death of Anandi in 1904 the plaintiff as the next reversionary heir succeeded to Jugalkishores estate. The plaintiff also alleged in this suit that certain properties in Gya held under mokurrari leases in favour of Bachchu alone in fact belonged to the three brothers jointly and were partitioned with the other properties. The defendants denied the alleged partition and as an alternative relied upon the agreement of 1874 above referred to as amounting to a relinquishment by Anandi of her estate to the next reversionary heir Mahabir so as to vest the whole proprietary right in the latter. They also alleged that the Gya properties belonged to Bachchu alone. The defendants denied the alleged partition and as an alternative relied upon the agreement of 1874 above referred to as amounting to a relinquishment by Anandi of her estate to the next reversionary heir Mahabir so as to vest the whole proprietary right in the latter. They also alleged that the Gya properties belonged to Bachchu alone. Upon the issues so raised a large amount of oral and documentary evidence was adduced, and in the result the Subordinate Judge was satisfied, notwithstanding the decision in 1874, that the alleged partition had in fact taken place, and accordingly that Jugalkishore at his death was separate in estate. He also held that the Gya properties belonged to the three brothers and were included in the partition. With regard to the transaction in 1874, the learned judge held that the agreement executed on behalf of Anandi was not within the authority of her agent and was obtained by corruption, and that such agreement was never ratified by Anandi. He accordingly made a decree in favour of the plaintiff. An appeal to the High Court against this decision was dismissed. On the appeal by the defendants to the Board it at once appeared that upon the question of the partition and upon the question of the ownership of the Gya properties there were concurrent findings of fact in favour of the respondents which could not well be questioned ; and accordingly the argument of the appellants turned on the legal effect of the transactions of 1874, which must now be more fully stated. After the decree of the District Judge delivered on April 18, 1874, by which he held that the three brothers were joint in estate and accordingly that Mahabir was entitled to a certificate, negotiations were entered into between Mahabir and the attorney of Anandi, her brother, Babu Dukharan Singh, and on May 17, 1874, two ekrarnamas or agreements were executed. After the decree of the District Judge delivered on April 18, 1874, by which he held that the three brothers were joint in estate and accordingly that Mahabir was entitled to a certificate, negotiations were entered into between Mahabir and the attorney of Anandi, her brother, Babu Dukharan Singh, and on May 17, 1874, two ekrarnamas or agreements were executed. By one of these ekrarnamas, which was executed by the attorney on Anandis behalf, after a recital of the recent litigation and the grant of the certificate to Mahabir, it was stated that Anandi, " in admission and acceptance of the judgment and order of the District Judge," and in consideration of the fact that Mahabir was the heir, proprietor and possessor of the estate of the three brothers, and that she had no proprietary interest therein and was entitled to maintenance according to the position of the family, " ceased from litigation," and that Mahabir, as the heir of the three brothers, had given her an 8-annas share of a certain mauza out of the joint estate of all the three brothers for her maintenance during her life ; and after reciting that Mahabir had on the same day executed an ekrarnama to the same effect, the agreement concluded " Now contrary to the terms of these ekrarnamas my principal shall have no right, claim, dispute or demand in respect of the estates of the deceased persons against Babu Mahabir Prashad Singh." On the same day Mahabir executed another ekrarnama in similar terms, whereby he secured the agreed maintenance to Anandi during her life. In pursuance of these documents Mahabir was forthwith let into possession of the whole property of the three brothers ; and from the date of these documents until her death in 1904 Anandi duly received the agreed maintenance without dispute or objection. It was considered both by the Subordinate Judge and the High Court that these documents were executed by the agent of Anandi without authority and in consideration of the payment of a bribe to him. Their Lordships cannot accept that view. There was indeed some evidence to show that a sum of Rs. It was considered both by the Subordinate Judge and the High Court that these documents were executed by the agent of Anandi without authority and in consideration of the payment of a bribe to him. Their Lordships cannot accept that view. There was indeed some evidence to show that a sum of Rs. 3000 was paid by Mahabir to the attorney some time after the execution of the documents ; but it was not proved that this sum was not paid in due course to the attorney as agent for Anandi and duly accounted for to her. In any case, the agreement having been accepted and acted upon by both parties for a period of thirty years without objection, and the stipulated maintenance having been duly received by Anandi during the whole of that period, it is not open to the plaintiff now to dispute the authority which was plainly admitted by Anandi herself during her lifetime ; and in view of this circumstance it appears to the Board that the agreements in question must be treated for all purposes as binding upon Anandi and the transaction cannot now be disturbed. In this aspect of the matter it became necessary for their Lordships to consider what was the true legal effect of the transactions referred to. The power of a Hindu widow to surrender or relinquish her interest in her husbands estate in favour of the nearest reversioner at the time has often been considered and was fully dealt with by the Board in the recent case of Rangasami Gounden v. Nachiappa Gounden. (L. R. 46 I. A. 72.) As pointed out in that case, it is settled by long practice and confirmed by a series of decisions that a Hindu widow can renounce the estate in favour of the nearest reversioner, and by a voluntary act efface herself from the succession as effectively as if she had then died. This voluntary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights ; and it may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widows right to hold the property. This voluntary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights ; and it may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widows right to hold the property. In the present case there was indeed no formal surrender by the widow of her estate ; but there was an express agreement, binding upon her, that for considerations which appeared to her sufficient she would abandon the claim which at the time she had a good right to make and would have no right, claim or Law Rep. 42 Ind. App. 259 ( 1914- 1915) Bhagwat Koer V. Dhanukhdhari Prashad Singh 100 demand in respect of the estate of her late husband. It is true that the documents were drawn up on the footing, not of a surrender of an acknowledged right, but of an admission that the right did not exist; but in substance, and disregarding the form, there was a complete self-effacement by the widow which precluded her from asserting any further claim to the estate. The question is no doubt one of difficulty, but upon the whole their Lordships have come to the conclusion that the execution of the two ekrarnamas, followed by the acceptance for thirty years of maintenance under the terms of those documents, amounted to a complete relinquishment by Anandi Koer of her estate in favour of Mahabir, and accordingly that the title of Mahabirs representatives is established and the plaintiffs action should have been dismissed on this ground. Their Lordships will accordingly humbly advise His Majesty that the appeals in suits 200 and 198 be dismissed and the appeal in suit 199 allowed and that the last mentioned suit be accordingly dismissed. The plaintiffs will pay to the defendants their costs of the hearing of suit 199 before the Subordinate Judge except the costs of issues 4 and 5 (relating to the partition and the Gya estates) on which they succeeded, and will also pay to them their costs of the appeal to the High Court in that suit. The defendants will pay the plaintiffs costs of issues 4 and 5, with the usual set off. Upon these consolidated appeals to the Board, in which each party has partly succeeded and partly failed, there will be no costs on either side.