Judgement

APPEAL from a judgment of the High Court of Madras (March 13, 1873), reversing a decree of the Civil Judge of Berhampore (December 23, 1871).

The talook of Chinnakimidy, otherwise called Pratapagheri, is an ancient hereditary zemindary, which descended from father to son for many generations before the British Government took possession of the territory subject to Fort St. George, at Madras, and made a permanent settlement with the zemindaries in the Northern Sircars in the year 1804.

At that time the assessment fixed upon this zemindary (then called Pratapagheri) was Star pagodas 15,714. 12., which was thereafter annually paid by the zemindar.

But the Madras Government, although it executed at that date a sunnad milkut istimrar in favour of the then zemindar, and sent the same to the Collector of Ganjam, declined to enter into any permanent settlement of the zemindary. It withheld the issue of the sunnad, and no kabuleat was ever executed by the zemindar as prescribed by Madras Regulation XXV. of 1802. The Government, moreover, on each occasion of a death vacancy appointed and recognised the successor to the zemindary, and a great mass of evidence was adduced in the suit out of which this appeal arose, in support of the right of the Government so to do. But after the decision of Her Majesty in Council in the Marungapury Case ((2) Law Rep. 1 Ind. Ap. 282.), it was admitted that the succession to the zemindary must be determined by the ordinary rules of the Hindu law of inheritance, irrespective of the recognition which had been made by the local government of the Appellant as successor to the last holder.

Adikonda Deo, the last zemindar, died on the 23rd of November, 1868, leaving the Appellant, his undivided brother, two daughters, an illegitimate son, Ramahrishna Deo, and his widow, then enceinte. On the 20th of November he was alleged to have exe cuted the following document, marked in the suit and referred to by their Lordships as exhibit Q —

"Agreement executed by Sri Vira Sri Viradhi Vira Pratapa Sri Adikonda Anunga Bhima Deo Kesari Maharaz, the lord of Pratapagheri talook, to Kundono Devi Patta Mahadevi, on Friday the 6th day of the increasing moon of the month of Margasira, that is, the 7th day of Vruschica of the year named Vibhava, Era 43, corresponding with the 20th of November, 1868, is as follows—

" As I know that my end, consequent upon the expiration of the term fixed by fate, is approaching (I do hereby declare) that in case you, who are at present pregnant, be delivered of a male issue, the said child alone shall inherit my talook, as well as all my property, both moveable and immoveable. Becoming the owner of moveable and immoveable properties, till he arrives at proper age you will look after him ; or if a daughter be the result of your present pregnancy, you, adopting a son, who may be in your opinion worthy of the throne, and making him owner of the talook, &c, shall, pending the attainment of the said boys majority, take care of him. This agreement is executed with my free will."

On the 2nd of December, 1868, the Collector of Ganjam wrote to the Board of Revenue, announcing the death of Adikonda Deo. In his letter he said " On the 24th of November, the day after he expired, I received a letter purporting to come from him, dated the 19th (though his residence is not twenty miles off, and the matter was emergent), in which he announced the approach of death, and nominated his son, the eldest of the three bastards, as his successor. Since then I have received two letters from his widow, claiming to succeed her husband in the absence of legitimate issue, and announcing further, that she is now three months gone with child. This was the statement in her first letter (referred to as E in the judgment) ; in her second, she adds that “ it was her husbands express wish, if she brings forth a son, such son should succeed; if a daughter, that she (the widow) should then adopt a son."

On the 11th of December, 1868, the Mahadevi addressed two petitions to the Government of Madras, and the governors private secretary, in which she announces her husbands death, and says, before his death he executed a puttoria, or will, and gave it to the petitioner, purporting, " That you have now conceived, if you bring forth a male child, he will be Rajah to the talook; in case of a female child, you are authorized to select a good child for the seat."

This petition was followed by a series of petitions to the same effect, some signed by herself, some by a native vakeel, some by a pleader of the High Court, in all of which the authority to adopt was referred to. One of them, X (d), dated the 26th of July, 1869, enclosed what purported to be a translation of the authority to adopt.

While the question of succession was still unsettled, the Appellant was stated to have sent a message to the Mahadevi, offering her his son in adoption. This offer was denied by him, but he admitted that on the 29th of January, 1869, he executed a document (EE) to one Sitaramaswamy, which was formerly registered on the 7th of June, in which, on behalf of himself and his minor son, he promised to grant a village to Sitaramaswamy, "as soon as I, or my son from my giving him in adoption, get possession of our zemindary."

At the time when this document was executed, a contest for certificate of heirship, under Act XXVII of 1860 , to the late Adikonda Deo, was pending in the Civil Court. The Mahadevi claimed as widow, Ramakrishna as legitimate son under an alleged will of Adikonda, appointing him as successor; Raghunadha, as the undivided brother, denying alike the genuineness of the will and the legitimacy of Ramakrishna. On the 30th of March, 1869, the Civil Court granted the certificate to the Mahadevi; but the High Court on the 11th of February, 1870, reversed this decision and granted the certificate to Raghunadha.

On the 11th of July, 1869, the Mahadevi was delivered of a 1 daughter; and on the 17th of September in the same year the Government resolved to recognise Raghunada Deo as the zemindar entitled in succession.

For four or five months the Appellant and Respondent were on friendly terms, living at the family palace of the zemindars. Sub sequently differences arose, and two suits in the year 1870 were the consequence.

On the 9th of August the Appellant filed original suit, No. 9 of 1870, in the Civil Cour of Berhampore, against the Mahadevi, for the recovery of Rs.323,000, and jewels of the value of Rs.92,000, belonging to the estate of his undivided brother, Adikonda Deo, which he alleged the Mahadevi to have wrongfully retained in her possession.

The Mahadevi filed her original suit, No. 12 of 1870, in the same Court, against the Appellant for the recovery of jewels of the value of Rs.20,030, alleged to have been lent by her to him, and for Rs.7000, money which she alleged she had lent him.

These two suits subsequently came on to be tried together, and the evidence taken in the former suit was applied in the latter, which last suit was dismissed with costs.

In the suit, No. 9, in addition to the allegations of loan of jewels and cash on which she founded her suit No. 12, the Mahadevi set up the following allegations first, that the Appellant had many years ago been divided from his brother, her husband, Adikonda Deo, by a formal division; and, secondly, that her husband, two days before his death, made her a present of all his property, real and personal. Both these points were found against her.

It was admitted that the decision must depend on that of the . Marungapury Case ((1) Law Rep. 1 lad. Ap. 282.), then heard but not decided, but as the Court felt it necessary to pass a pro forma decree, the suit was dismissed without costs, on the ground that the zemindary was the self-acquisition of Adikonda Deo, and that on his death without issue his personality would pass to his widow.

After the decision in the Marungapury Case ((1) Law Rep. 1 lnd. Ap. 282.) was pronounced, the Civil Court reviewed its decree, and gave a decree in favour of the Appellant, and thereby awarded him the sum of Bs.82,000 without costs.

On the 20th of November, 1870, the Mahadevi adopted the Respondent, the son of the Zemindar of Piddakimidy, a sapinda of her late husband in the sixth degree.

On the 15th of December, 1870, the Respondent, by the Mahadevi, his adoptive mother and guardian, filed his original suit, No. 1 of 1871, in the Civil Court of Berhampore against the Appellant for the recovery of the zemindary of Chinnakimidy. His title was set out as follows—

" The zemindary of Chinnakimidy, comprising the talook of Pratapagheri in the district of Ganjam, is an ancient zemindary which from time immemorial has been held by the ancestors of the late Sri Adikonda Deo and has descended from father to son. The late Sri Adikonda Deo held the said zemindary from the death of his father Chendramani Deo in 1835 until his own death, which happened on the 23rd of November, 1868. At his death he left no male issue, but his widow, Sri Kundono Devi Patta Mahadevi, was then pregnant. The said Sri Kundono Devi Patta Mahadevi was subsequently delivered of a daughter, whereupon the Government of Fort St. George recognised the Defendant as successor to the zemindary.

"Subsequently, that is to say, on the 20th of November, 1870, the said Sri Kundono Devi Patta Mahadevi adopted the Plaintiff, by virtue of a written authority given to her by her husband the said Sri Adikonda Deo, and with the consent and sanction of the relations of the said Sri Adikonda Deo duly competent to grant such sanction and consent.

" The cause of action is the refusal of the Defendant to deliver to the Plaintiff the Zemindary of Chinnakimidy, and it accrued to the Plaintiff on the said 20th day of November, 1870."

The Respondent subsequently, and on the 31st of July, 1871, filed his supplemental plaint, claiming,

as adopted son, the lvs.20,030 worth of jewels, and the Rs.7000 money lent, for which the Mahadevi had filed her original suit No, 12 of 1870 hereinbefore referred to.

It was stated that "the said jewels and money were the property A of the late Zemindar Sri Adikonda Deo, and as such, your Petitioner by virtue of the adoption alleged in the original plaint, became entitled to them."

" After the death of the said Adikonda Deo, they passed from the possession of his widow, the adoptive mother of your Petitioner, into that of the Defendant, and are the same jewels and money which formed the subject of original suit No. 12 of 1870, brought by the said Sri Kundono Patta Mahadevi against the Defendant to the plaint, to which suit your Petitioner begs leave to refer."

" The Defendant in the said suit admitted that the said property had formed part of the estate of the said Sri Adikonda Deo, and that he had got possession thereof as rightful heir to the deceased zemindar, and your Honourable Court decided that the Defendant was entitled to retain possession thereof as against the said Sri Kundono Mahadevi."

On the 20th of September, 1871, the Appellant filed his written statement, in which he asserted the right of the Government to appoint a successor, and the fact of his appointment by Government. He further pleaded, that,

"The late zemindar did not, while of sound and disposing mind, or ever, or in fact, execute the authority said to have been given by him to the Mahadevi.

" The Plaintiff was not legally, or in fact, adopted by the Mahadevi, as in the plaint is alleged.

" The Plaintiff has no right or title to the money and jewels, or any part thereof claimed in his supplemental plaint."

On the 20th of September, 1871, issues were settled, of which the only one material to the appeal was the first, and that only so far as it raised the question of the legality of the adoption; the fact of the adoption having been admitted by the Appellants counsel at the hearing. That first issue was as follows—

"Plaintiff asserts, and Defendant denies that the Plaintiff has by the l)Iahadevi been adopted as heir to her late husband, and that such adoption is valid as Against this Defendant."

At the hearing, the Respondent rested his case upon two points; first, he maintained that the late Adikonda Deo had, in fact, executed a written authority to his wife, the Mahadevi, Respondents adoptive mother, authorizing her to adopt a son 3 in event of her not bringing forth a male child, she being then enceinte; and, secondly, that even without such an authority his adoption was valid, as it had been assented to by his natural father, the Zemindar of Piddakimidy, a sapinda of the late Adikonda Deo in the sixth degree, and, as the Respondent alleged, by the Appellant himself.

The Civil Court found against the Respondent on all points both of fact and law, on the first issue, and dismissed the suit with costs.

On the 13th of March, 1873, the High Court (Holloway and Kindersley, JJ.) reversed this decree. The following is the judgment of Mr. Justice, Holloway —

" Mr. Justice Holloway —Two questions have been argued 1. Whether the Civil Judge was right in rejecting the evidence as to express authority. 2. Whether the assent of the Kimidy Rajah, the only sapinda except the Defendant, is insufficient to validate the adoption, as the Judge has decided.

"On the first question, my impression is against the finding of the Civil Judge. I am by no means insensible to the weight of the arguments derivable from the sort of evidence adduced to the attestation, and from the form of that attestation. The substantial fact, however, remains that the Maharanee, a witness whom the Judge himself considers truthful, if believed, proves the case beyond all doubt. The Judge, I understand, for I do not feel very confident upon the matter, seems to have arrived at the conclusion that the signature is not that of the deceased Rajah. I confess to very great distrust of this sort of comparison of signatures, even in the hands of a Chabot, where the human hand is the instrument creating the impression. Where the genuineness of a seal is in question such comparison may be, and has before, been applied by the Civil Judge with very great advan tage. I cannot agree with Mr. Maynes argument that it was not open to the Civil Judge to find in favour of the Defendant upon grounds other than those upon which he put his case. Undoubtedly, however, the fact that the Defendant undertook to show how the genuine signature of the deceased came to be attached to this document is a circumstance of some weight against the conclusion of the Civil Judge, for it shews that persons well acquainted with the habits of the people did not consider the mode of attestation so improbable as the argument before us treated it. The views of the people of this country as to attestation are very peculiar, and it frequently, even in honest transactions, means no more than that the persons signing are acquainted with the truth of the matter. Then the case comes to trial, and with the knowledge that in the last resort the matter will be considered on English principles, the witnesses profess to have been eyewitnesses of what they never »w. Bound to decide according to what I believe to be the truth, I should by n© means consider this transaction proved false because I come to the conclusion that those whose signatures are attached were not eye-witnesses. I confess my belief to be that this written authorization was given by the deceased. The terms on which he lived for thirty-three years with his brother, and the affection admittedly felt for his wife, are strongly in favour of such an arrangement.

" On the second point, however, I am of opinion that under the doctrine of the Ramnad Case this adoption is perfectly valid. I will only refer to that judgment, necessarily tedious, from my being compelled to work out a subject with which I was not acquainted. I am unable to see that the doctrine of that case is touched by the judgment of the Judicial Committee. They assent to the proposition that the question of property is wholly out of the case, and only suggest that perhaps persons living in coparcenery might have a right to object to the introduction of another coparcener. Whether this is so or not, it has no application to the present case, in which the property is to be held in severalty and not in coparcenery. To rule that the assent must always be insufficient unless the nearest sapinda agrees, would be to render the right altogether illusory, for that nearest sapinda is a person whose succession will be intercepted by the adoption. The meaning of the law is simply to supply the widows supposed incapacity for action. I will suppose, merely for the sake of argument, that the purity or impurity of the intention cannot, on the principles of Hindu law, have any influence, and testing the matter in that view, it is impossible not to be struck by the consideration that the deceased husband, if he could have had a voice in the matter, would strenuously have objected to the succession of a man from whom he had received, in a long course of years, nothing but injury and insult upon the most tender point, the purity of his caste. If his presumed wish could have any influence none can doubt what that wish could have been. As to the specific object, it cannot be doubted that the son of a man of rank, and of his only near relative with whom he was on terms of friendship, would have been considered appropriate. In this point of view it would not be unimportant to see that the propriety of an adoption was admitted by the Defendant himself, and a reward promised (e. g.) to the man who should j)rocure the adoption of his son. We have, therefore, both the sapindas agreeing in the propriety of the adoptin, and the question is therefore narrowed to the question of whether the assent of one of them to the specific object is enough. No attempt has been made even to suggest that the choice, if there was power to make it, was otherwise than wise. If regard for the husbands feeling were to have any influence upon the choice, there would again have been obvious disrespect to his memory in the choice of the Defendants nominee, and there would be strong ground for saying that the opposition of the Defendant dictated by self-interest ought not to prevail.

aI have no doubt, however, that all these arguments, from the intention of the agents, are wholly beside the question in Hindu law. I have stated at great length the grounds upon which I come to this conclusion at vol. vi. p. 337 of the Reports of this Court. As that case will eventually be heard by the same tribunal as the present, I shall not repeat those arguments here. The great lawyer whose views are there embodied, was the by no means unequal adversary of Savigny. I am unwilling to refer to a judgment for which I am responsible, but after nine years further consideration and examination, I continue of opinion that the judgment in the Ramnad Case, with many crudities, and notably in its importation of questions of intention into a law upon which they have no bearing, is substantially sound, and that in all essential points it was confirmed by the Judicial Committee. I adhere to its substance, and I consider the following propositions unquestionable—

I

" 1. The adoption by the widow with the assent of a sapinda, is a substitute for the actual begetting by a sapinda.

" 2. That the argument from analogy is in favour of the assent of one sapinda rather than of more.

" 3. That his assent is not to supply a capacity for rights, but a capacity for action.

"4. That proximity to the deceased with respect to rights of property is wholly beside the question, and that if this were not so, the rule would be entirely defeated.

" 5. That in the present case that capacity has been sufficiently supplied, as in the law which this assent of sapindas has superseded a child begotten by this assenting sapinda would have been undoubtedly legitimate.

" An attempt was made to shew, that in the place from which this case comes, the rule of the special Bengal treatises and not that of the general law prevails. This argument was never put forward in the Lower Court, and so far as I can see from the authorities within my reach, it is wholly unfounded.

" There was no argument as to the mesne profits, the amount of which was, I believe, admitted, and the decree will be reversing that of the Court below, for the return of the zemindary to be adopted son, with mesne profits from the date of suit."

Benjamin, Q.O., and Norton, for the Appellant— Since the decision by this Board of the Marungapury Case ((1) Law Rep. 1 Ind. Ap 282.), the Appellant can no longer rely in support of his title upon his nomination as successor to the zemindary by the Government. He is, however, in possession as the undivided brother of the deceased owner, and consequently, by the ordinary rules of the Hindu law of inheritance, as next heir to the deceased owner, who died without male issue; unless the Respondent succeeds in establishing that he has been in fact adopted as a son to the deceased in a manner which Hindu law recognizes as valid and complete. That a ceremony of adoption had in fact been performed by the Mahadevi in favour of the male Respondent is admitted, but its validity depends upon two questions (a.) As to the genuineness of the document marked Q, which purported to be a written authority by the deceased zemindar to his widow to adopt a son under the circumstances which happened, namely, of her being delivered of a posthumous daughter, (b.) As to the widows right, under the school of Hindu law to which the parties are subject, in case Q should be held to be fabricated, to adopt a son to her deceased husband in the absence of a written authority from him to that i effect, with the consent of one sapinda, that sapinda being the natural father of the son so taken in adoption. With reference to (a), the judgment of the Lower Court distinctly found that Q was a forgery. The Judge discredited the testimony of the witnesses, including the Mahadevi, who spoke to its execution, and held that the oral evidence in its support had wholly broken down. He also instituted a most careful, minute, and searching comparison between the signature of Adikonda Deo to Q, and his proved signature to other documents in the cause, and pronounced the signature a forgery. No doubt the Appellants contention was and is that the signature to Q was genuine, and that the whole of the contents had been written after Adikonda s death on a blank paper bearing his signature. It is submitted whether that or the con clusion of the Judge is the more reasonable conclusion from the evidence; but, quacunque via data, the finding that Q is a forgery, a finding undisturbed by the decree of the High Court, necessitates the issue of fact being determined against the Respondent. The judgments of the Indian Courts, though not concurrent, are not directly conflicting, and it is not the practice of the Judicial Committee to disturb a finding of fact by the Court of first instance, when such finding is acquiesced in by the Court of Appeal.

As to (b), which is an issue of law, and which arises immediately upon the rejection of Q as fabricated, they contended that the doctrines laid down in the judgment of Holloway, J., as to the sufficiency of consent by one sapinda, were entirely erroneous. As to the right of the widow with regard to the adoption of a son in the absence of express authority from her deceased husband, see the Ramnad Case ((1) Collector of Madura v. Moottoo Ranculinga Sathupathy, 12 Moores Ind. Ap. Ca. 397, and especially p. 441.). The consent of one single sapinda, himself the father of the adopted child, in the sixth degree, and a divided member of the deceaseds family, was wholly insufficient to validate this adoption. See the Travancore Case ((2) 8 Madras Jur. 58.), which was a case where a native Court, in a very learned judgment, held that a widow, with out her husbands express permission, but with the consent of several divided sapindas, could not validly adopt a son, when her husbands undivided brothers objected, or did not assent. The application of the Travancore Case is complete, and] goes further than it is necessary to contend for, inasmuch as the consent given in that case was not an isolated act on the part of one divided sapinda, interested for his own sake, and not for the good of the deceased, in procuring the adoption. No doubt the Travancore judgment is of no binding authority, either here or in the Madras Courts; and, according to Holloway, J., the dictum of the Privy Council in the Ramnad Case is obiter dictum, since in that case a majority of sapindas had in fact assented; and, moreover, the estate, the subject of litigation, was separate and self-acquired. If, however, it is necessary to lay down a new rule, and to decide what is the least amount of consent which would authorize a widow to adopt, in an undivided family, when an undivided brother survives and opposes or withholds his consent, then the judgments of the Travancore Court and the obiter dictum of the Privy Council are of the greatest weight. No doubt Holloway, J., laid it down in the Ramnad Case ((1) See 2 Mad. H. C. pp. 229-231) that if the doctrine on which the necessity for any consent rested involved anything more than a moral precept, the consent of one sapinda would suffice. But that also was au obiter dictum. The amount of consent required was not in issue, for a majority of sapindas had consented. Then, in Bombay those qualifications as to the character and amount of the necessary consent, which were suggested by the Privy Council in the Ramnad Case9 were approved and acted upon. It is not contended that the consent of all the sapindas is necessary, what is required is the consent of all whose rights would be touched by the adoption. They referred to Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry ((2) 10 Moores Ind. Ap. Ca. 279), where it was held that a widow cannot displace by adoption an heir in whom the estate has once vested; and also that a husbands authority to adopt is inoperative, unless exercised in his lifetime. As to the Bombay cases, see Rakmabai v. Radhabai ((3) 5 Bomb. H. C. Rep. A. C, 181,185.) ; Narayan Babaji v. Nana Manohar ((4) 7 Bomb. H. C. Rep. A. C., 153, 157, 171.) ; Bayabhai v. Bald Venkatesh Ramkant ((1) 7 Bombay H. C. Rep. Appendix i.) ; Gopal S. Patvardhan v. Naro V. Patvardhan ((2) Ibid. p. xxiv.); Mhalsabai v. Vithoba Khandappa Gulve ((3) Ibid. p. xxvi.) ; Rupchand Hindumal v. Rakmabai ((4) 8 Bomb. H. C. Rep.

A. C. 114.). See also the Shivagunga A Case ((5) 6 Mad. H. C. Rep. 337.) ; Sri Rajah Yenumala Gavuridevamma Garu v. Sri Rajah Yenumala Ramandora Garu ((6) 6 Ibid. 93.). Moreover, the object with which a widow makes an adoption must be to promote the spiritual benefit of her deceased husband. It must not be made capriciously, or for her own exclusive interest, nor must the con sent of any sapinda be obtained or given from selfish or capricious motives. There is no evidence in this case that the parties so acted. [Sir Robert P. Collier —If you want to set aside an adoption otherwise valid, on the ground of corrupt motive; the onus would be upon you, and you would require a considerable amount of proof. Leith, Q.C.—There are cases to shew that the conduct of the widow does not affect the validity of the adoption. Sip Montague E. Smith —That is where the husband has directed it.]

Upon the subject of consent being necessary, they referred to the authorities contained in a book which was during the argument and in the judgment of the Privy Council in the Ramnad Case ((7) 12 Moores Ind. Ap. Ca. 439.) cited as the " Green Book." For these cases and authorities see also the references in 12 Moores Ind. Ap. Ca. 421.

As to Mr. Justice Holloway’s argument from analogy in favour of consent by one sapinda being sufficient, Thakoor Jeebnath Singh v. Court of Wards ((8) Law Rep. 2 Ind. Ap. 163.) was referred to, to shew that in arguing from a like analogy in the case of an appointed daughter the Court will see that the analogy is correct and strictly followed. Arundadi Ammal v. Kuppammal ((9) 3 Mad. H. C. Rep. 283.) was cited to shew that in that case, where there was neither authority by the husband or consent by the sapinda shewn, the Court was not disposed to go further than the High Court had gone in the Ramnad Case.

Leith, Q.C., and Mayne, for the Respondent—

As to the genuineness of the document marked Q, it is con-[@ page RIA 167] tended that the evidence of the attesting witnesses and of the Mahadevi was trustworthy, and was corroborated by a series of documents. The Appellant and his witnesses and counsel, at the original hearing, admitted that the signature and the family crest on Q were written by Adikonda himself. But their case was that the paper was signed in blank by him during his life, and the document forged upon it after his death by their own witness at the instigation of one of the Respondents witnesses. It is submitted that the Civil Judge, after the case had been conducted throughout on the admission by the Appellant that Q was in fact signed by Adikonda, was not justified in acting upon an opposite view. In holding, in spite of the case presented to him by both sides, that Q was not signed by Adikonda at all, he equally rejected the case both of Appellant and Respondent, and came to an opinion opposed to all the evidence on both sides. Moreover, the findings of the Courts below are not concurrent; the High Court did not in their judgment go into the evidence, but it inclined to the belief that Q was signed as both parties alleged it to be, and they cannot be said to have sanctioned a finding which there is not a shred of evidence on either side to support. Moreover, the Judge, in forming his opinion upon the evidence, improperly ex-cluded from his consideration the improbabilities of the case as presented to him by the Appellant; and allowed himself to be biassed against the Respondent by the unfounded assumption, contrary to the Appellants admission, that she had put forward a forged signature.

But even if Q were not genuine, the fact of an adoption is admitted, as also the consent of a sapinda, namely, the father of the adopted child, and that consent, in the absence of an express permission by the husband, is sufficient in law to validate the adoption. In the Mahratta district the Hindu law of adoption differs from that which prevails in Bengal and Madras. The Dravida or Madras school is in some respects coincident with the Benares school, except that by the former a widow may adopt with the consent of a sapinda. The question is, as to the amount of consent, and who the sapinda should be whose consent is held to be necessary see Menus Institutes, c. ix. ss. 59, 60 ; the Travan- core Case ((1) 8 Mad. Jur. p. 58.). In the Ramnad Case ((2) 2 Mad. H. C. Rep. 206 ; 12 Moores Ind. Ap. 397.) it was unnecessary to decide whether one sapindas consent is sufficient; and as to the corrupt motives which were in contemplation by the Court in that case, A they would, if proved in this or any other case, invalidate an adoption altogether. The Shivagunga Case ((3) 6 Mad. H. C. Rep. p. 337.), cited on the other side, has nothing to do with adoption. The dicta in the Ramnad Case, the cases cited by Holloway, J., and the Travancore Case, are the only authorities.

None of these laid down any rule as to the amount of assent that was required. The principle upon which any assent was necessary appeared to be, that females, on account of their supposed mental weakness, were always under tutelage, and were incapable of performing any important act without the advice and assent of a male relation. This advice and assent might be given by one as well as by many, and by a divided member of the family as well as by an undivided member. The assent was not required as a waiver of the rights of the assenting party, but as evidencing the opinion of a masculine mind that the act was in itself a proper one. If the assent of the nearest heir was necessary, then that assent would never be given, and the whole doctrine of adoption by a widow would become nugatory. That doctrine was founded upon the duty of procuring the most efficacious performance of her husbands funeral rites. Those rites might be performed by the brother, but not so efficaciously as by an adopted son (Dattaka Mimdmsa ; Stokes, H. L. B. 545, § 58). No doubt this view was in conflict with the remarks of the Judicial Committee in the Ramnad Case ((4) 12 Moores Ind. Ap. Ca, 441.), which were adopted by the Judges in the Travancore suit. But the remarks of the Judicial Committee were merely obiter dicta, and unnecessary for the decision of that case, where the property was admittedly divided; and the Travancore judgment was the judgment of a foreign Court, and not binding.

Further, assuming the view taken in the Ramnad appeal to be law to its full extent, it did not govern the present case. First, because the remarks of the Judicial Committee only applied to the ordinary case of members of an undivided family, who had each their undivided share of the coparcenary property. Upon the death of any member, that share would be enlarged by survivorship ; and it might well be that the consent of each would be required to prevent such an enlargement, and to allow of the transmission of the share of the deceased coparcener to an adopted son. But, as the High Court pointed out, this was] the case of a zemindary which was held, not in coparcenary, but in severalty. The heir took by succession, not by survivorship (see Neelkisto Deb Burmono v. Beerchunder Thakoor ((1) 12 Moores Ind. Ap. Ca. 540; 13 Beng. L. p. 460.); and until it was determined who the heir was to be, no one had any interest in the property. Secondly, because, if the consent of the only other sapinda, Raghunadha Deo, was necessary, that consent had been given. No doubt he had not consented to that particular adoption which had taken place; but the oral evidence, and the document EE shewed that he had consented to an adoption, and no more was required by Hindu law. If it appeared that he agreed to the propriety of an adoption, it was not necessary that he should agree to the particular adoption, if the person chosen was in fact a proper person to be adopted; still less could he withhold his assent to the choice of any person except his own son.

Mr. Norton replied.

The judgment of their Lordships was delivered by

Sir James W. Colvile —

Rajah Adikonda Deo, the then holder of an impartible zemindary in the district of Ganjam, which in these proceedings is called sometimes Chinnakimidy, and sometimes Pratapagheri, died on the 23rd of November, 1868. He left no legitimate male issue, but a widow, then enceinte, whom it will be convenient to designate by her title of Mahadevi. He had, however, several natural sons, one of whom, Ramakrishna Deo, contrived, on the death of his father, to be invested by some of the retainers with the " Sadhi," and asserted a claim to the zemindary on the ground that he was in fact legitimate, and had been designated by Adikonda as his successor in an urzi signed by him on the 19th of November, and forwarded to the Collector. This claim has since been found to be groundless, and may be treated as no longer existent.

The Appellant Raghunadha, who was a half-brother of the deceased zemindar, must now be taken to have been an undivided brother, and the person who, according to the ordinary law of succession, was entitled to the zemindary on the death of Adikonda without a legitimate son, either procreated or adopted.

It is necessary, in order to explain some parts of the subsequent history of the case, to observe that the question of succession, when it first arose, was further complicated by the fact that the zemindary, though permanently settled, was one of those as to which it was then conceived that, owing to the omission to issue a permanent sunnad, the Government of Fort St. George had retained the right of nominating, on the death of each successive holder, his successor. The confirmation by this Board of the decision of the High Court of Madras in the Marungapury Case ((1) Law Rep. 1 Ind. A p. 282.) has since established that there was no legal foundation for this pretension on the part of Government; and it must now be taken to be settled law that the title to the zemindary is to be determined by the ordinary law of succession in like cases.

On the day after that of the death of Adikonda, i.e., on the 24th of November, 1868, the Mahadevi addressed an urzi to the Collector, in which she stated the death of her husband; that the family was composed of women and children; that she had then none legally entitled to the talook, but was three months gone with child ; and prayed to be entrusted with the care of this talook. In this document she made no mention of an authority to adopt.

It is shewn, however, beyond all question, by the Collectors letter of the 2nd of December, 1868, which is recited in the pro ceedings of the Board of Revenue, that before that date he had received a second urzi or letter from the Mahadevi, in which she had alleged that it was her husbands express wish that, in the event of her having not a son, but a daughter, she should adopt a son. And if the exhibit E be that second urzi, or a true copy of it, there can be no doubt that as early as the 26th of November, 1868, the Mahadevi had asserted publicly that her husband had, on the 20th of that month, executed in her favour a written authority to adopt a son in the event which afterwards happened. The confusion which seems to have taken place in the Civil Court with respect to the proof of exhibit R has given rise to a con troversy on its authenticity which will be afterwards considered. But, whatever may have been the precise contents of the second urzi, it is unquestionable that, as early as the 11th of December, the Mahadevi presented a formal petition to the Government of Fort St. George, in which she stated that Adikonda, before his death, executed and gave to her a putrica (or will) containing words to this effect " You have now conceived; if you bring forth a male child, he will be a rajah to the talook; in case of a female child, you are authorized to select a good child for the seat;" and that in several subsequent petitions and applications she persistently put forward and relied upon a written authority to adopt executed by her husband. One of these, bearing date the 18th of March, 1869, stated the date of the instrument to be the 20th of November, 1868; and in most of them she claimed to be heiress to the zemindary in default of a legitimate son, natural or adopted, of her husband. Raghunadha seems on his side to have been also asserting his claim before the Government and the Revenue authorities.

The action taken by the Government of Fort St. George was as follows—

The Board of Revenue, on the report of the Collector, had, on the 7th of January, 1869, expressed its opinion that Raghunadha had the best claim to the zemindary, provided the Mahadevi did not give birth to a son; but that if she should have a son that son ought to succeed. Thereupon Government, on the 1st of March, ruled that a posthumous son would be entitled to the inheritance, and directed the Collector to take such measures as he might thing fit to ascertain whether the widow was really pregnant, and to verify the sex of the child when born. To the widows repeated applications it made answer that the claim to the zemindary was under consideration. On the 11th of July, 1869, the Mahadevi was delivered of a daughter, and on the 17th of September in that year Government, in the exercise of its supposed power, and on the recommendation of the Collector, supported by the Board of Revenue, resolved to recognize Raghunadha, who had been reported by the Collector to be the undivided brother of the deceased zemindar, as the successor to the Chinnakimidy estate; thereby overruling the Mahadevis claim to be heiress to her husband, and ignoring her asserted right of adoption.

Pending these proceedings there had been litigation between the Mahadevi and Raghunadha touching the right to a certificate, under Act XXVII. of 1860, for the collection of the debts due to the deceased zemindar. This was determined in favour of the Mahadevi by the Civil Judge on the 31st of March, 1869. But on the 11th of February, 1870, his decision was reversed by the High Court, and the certificate granted to Raghunadha, apparently on the general ground that the claim of an undivided brother was preferable to that of a widow, and that there was no satisfactory proof of division.

For some short time after the determination of the Government in his favour, Raghunadha and the widow seemed to have lived together in amity. She retained, apparently with his consent, the custody of the keys of the goutaghoros or treasuries, in which the jewels, cash, and other valuables that had been left by the late zemindar were kept; but allowed Raghunadha to receive there out both jewels and cash for the purposes of his installation, which took place on the 1st of February, 1870. He again was in correspondence with the Collector in November touching the villages to be assigned! to her for her maintenance, and speaks of their friendly relations, although in one of his letters he complains that Haribondha Surmanto and two or three more wicked persons were " making intrigues and giving evil advice." But this state of amity, if it ever sincerely existed, was of brief duration. In the course of 1870 the parties again plunged into active litigation. In his suit, numbered 9 of that year, Raghunadha sought to recover from the Mahadevi the jewels and cash in the goutaghoros, greatly exaggerating their amount and value, as property to which he was entitled as zemindar. In her suit, No. 12 of 1870, she sought to recover from him the particular jewels and cash which had passed from her to him on the occasion of his installation, alleging that he had received them by way of loan on a promise to restore the former and repay the latter. Her suit was ultimately dismissed on the ground that she had failed to establish any such contract. In the other suit the material issues were whether Raghunadha was the undivided brother of Adikonda, or separate in estate from him; whether the Mahadevi, as widow of Adikonda, was entitled by right of succession to the money and jewels left by him; and if not, whether Adikonda had made to her at the time of his death a gift of them that was valid against Raghunadha.

In this suit the Civil Judge found that Raghunadha, the Plain tiff, was the undivided brother of Adikonda, and that Adikonda, at the time of his death, did not make a gift to his wife of any part of the property then in dispute. He found, however, in the first instance, upon the second issue, that the Mahadevi, as widow of Adikonda, was entitled to all the money and jewels left by him; proceeding, apparently, on the ground that, inasmuch as each succeeding zemindar must be taken to have held the estate by virtue of a new grant from Government, he held it as self-acquired property; and consequently that, on his death, his personal assets would pass to his widow, to the exclusion of his brother. Before, however, a final decree had been drawn up in this suit, the Marungapury Case was decided by the High Court of Madras; and the Judge thereupon granted a review of his decision. On that review he found that the Mahadevi, as widow of the late zemindar, was not entitled to the money or jewels left by him; and, finally, made a decree in favour of Raghunadha, but for an amount much less than that claimed by him. There was no appeal against the decrees in these suits. They decided as between the Mahadevi and Raghunadha that the status of the family was that of in division; and that Raghunadha being, in default of male issue of Adikonda, entitled to the estate, was entitled to the jewels and cash as appurtenant thereto. They have, however, little bearing on the questions now to be determined; although some of the depositions taken in them have been relied upon as affecting the credibility of the testimony given by the same witnesses in the present suit.

Pending these two suits of 1870, and on the 20th of November in that year, the Mahadevi adopted the present Respondent. He was the son of the zemindar of Piddakimidy, who is admitted to be a sapinda of Adikonda Deo, though separate in estate from [A him; both families being derived from a common ancestor, Purushottama Deo. Nor is the validity of the adoption impeached, except on the ground that the Mahadevi had not sufficient autho rity to make it.

On the 15th of December, 1870, the Respondent, by his adoptive mother and guardian, the Mahadevi, commenced his suit for the recovery from Raghunadha of the zemindary and of all the pro perty appurtenant thereto, with mesne profits. The Defendant Raghunadha originally set up, by way of defence, that his title as zemindar appointed by Government could not be questioned. But it is now admitted that since the decision of the Marungapury Case this defence cannot prevail; and that the only questions to be decided are, whether the exhibit Q which is propounded as the written authority to adopt of the 20th of November, 1868, was, in fact executed by Adikonda Deo, and if not whether the adoption is not nevertheless valid according to the law that prevails in the Presidency of Madras, as one made by a widow without express authority from her husband but with sufficient sanction and consent on the part of her husbands relatives.

The Civil Judge decided both these questions against the Respondent. He came to the conclusion both from external and internal evidence that the document was a forgery; he was also of opinion that the requisite assent to an adoption, in the absence of an authority from the husband, was not given, and consequently that the adoption was not valid as against the Defendant. The High Court inclined to the opinion that Q was in fact executed by Adikonda, but did not go very much into the evidence for or against the document; being of opinion that, even if no express authority was given by Adikonda, the adoption by the widow, being made with the consent of one of his sapindas (the father of the child adopted), was valid by the law of Madras.

Their Lordships propose to consider, first, whether Q was in fact executed by Adikonda.

It has been strongly urged upon them that the judgments of the two Indian Courts upon this question, though not concurrent, are not directly conflicting, the High Court having omitted to find that the document is genuine, or fully to consider the evidence concerning it; that in this state of things their Lordships cannot safely overrule the decision, upon a question depending mainly on the credibility of conflicting witnesses, of a Judge of great local experience, who saw and examined those witnesses, and has expressed his conclusion in a judgment that demonstrates with what remarkable care and industry he tried the cause.

Their Lordships are by no means insensible to the force of the general proposition involved in this argument. That force, however, seems to them to be somewhat diminished by particular circumstances in this case. They consider that the voluminous judgment of the Civil Judge deserves the credit due to a most painstaking endeavour to arrive at the truth in a difficult case. But its excessive elaboration tends to impair its value by defeating the proper object of a judgment, which is to support, by the most cogent reasons that suggest themselves, the final conclusions at which the Judge has conscientiously arrived. This document records the fluctuations of the Judges mind from day to day in the course of an exceptionally long trial; the effect, often temporary, upon him of a particular piece of evidence or argument of counsel; it subjects every witness to criticism more or less unfavourable; and from this mass of often conflicting statements, it is not easy for a Court of Appeal to extract the precise grounds on which the final conclusion rests.

Again, the counsel for the Respondent have strongly insisted on the objection to the authority of this judgment which they founded upon the observations of the learned Judge in paragraph 62, &c. ((1) That passage was as follows— " A great deal has been said about the balance of probabilities. But this is not a case to be decided upon probabilities. The Defendant is in possession; and is not to be ousted in the absence of good evidence. This its not a case in which the Court must say it believes one side rather than the other. It disbelieves the Plaintiffs evidence; and that is quite enough. That it disbelieves most of the Defendants evidence is nothing to the point."). It must be admitted that the passage is ambiguous. If it means only that where a case has been manifestly proved to be false (as, e.g., if Q had been shewn to be written on a stamp paper purchased after Adikondas death), it is unnecessary to weigh general probabilities, the observation is a mere truism, since it is obviously idle to inquire whether it was likely a man should do 1 that which it has been demonstrated he never did. On the other hand, if it imports that the Judge refused to weigh the probabilities of the case, because he believed one set of witnesses rather than the other, it would support the objection taken, viz., that in forming his belief he had excluded from his consideration that which ought to have entered into it. Their Lordships, however, upon a review of the whole judgment, are of opinion that, in whatever sense the learned Judge made the observation in question, he did not, in fact, fail to consider the probabilities of the case. Whether he gave due weight to them will be afterwards considered.

A more substantial objection to the judgment is, that it does not dispose of the question as it was presented by the parties. The learned Judge was not content to find that Q was a forgery. By a careful examination and comparison of it with admitted signatures of Adikonda he satisfied himself that the signature purporting to be that of Adikonda was itself forged. Yet the Appellant had admitted that that signature, and the sankhu and chakran (the emblems on it) were of his brothers handwriting; and the case made by him and his witnesses was that the forgery was effected by filling up, after Adikonda’s death, a blank paper, which had these genuine marks and signature upon it. Their Lordships agree with the Judges of the High Court in thinking that little weight ought to be given to a comparison of Oorya handwriting by an European Judge, however skilled and experienced, when opposed to the admissions of those who dispute the document. They feel bound, therefore, to assume, and that has been almost admitted in the argument addressed to them on the part of the Appellant, that the signature of Adikonda upon Q is of his handwriting. It is obvious, however, that the erroneous conviction of the Civil Judge to the contrary may greatly have biassed his estimate of the credibility of the Plaintiffs story, and may have prevented him from duly weighing the improbabilities of that told by the Defendant, which he did not adopt. The genuineness, therefore, of the signature of Adikonda is a circum- splaintance which mate rially de tracts from the ge ne ral value and authority of the judgme nt of the Civil Judge ; and their Lords hips cannot but fe el that the y have to de te rmine the que s tion be fore the m upon the e vide nce take n in the caus e wie and authority of the judgme nt of the Civil Judge ; and their Lords hips cannot but fe el that the y have to de te rmine the que s tion be fore the m upon the e vide nce take n in the caus e without the as sis tance which the y ge ne rally find in s imilar cas e s in the judgme nt of one or the othe r of the Indian Courts .

That the re is in this cas e a s trong ante ce de nt probability that Adikonda did authorize an adoption is inconte s table . It doe s not re s t upon the me re pre s umption that on his de athbe d he would de s ire to pe rform that ge ne ral duty of impe rfe ct obligation which prompts a childle s s Hindu to s upply the want of natural male is s ue by adoption. It is s he wn that the brothe rs , though le gally undivide d, we re long on bad te rms with e ach othe r. The s trife be gan, as appe ars by the Colle ctors le tte r, on the de ath of the ir fathe r in 1835, whe n the re was a dis pute as to the ir s ucce s s ion to the ze mindary, Raghunadha claiming it as the e lde s t s on of the the n Mahade vi, though younge r in ye ars than Adikonda, who was born of a wife of infe rior rank. This controve rs y was de te rmined by the then Gove rnme nt, in the exercis e of its as s ume d powe r, in favour of Adikonda. The s trife , howe ve r, was e mbitte re d by s ubs e que nt quarre ls be twe e n the brothe rs , and by the de s pe rate atte mpt of Raghunadha as late as 1852 to oust his brothe r by proving him to be ille gitimate . In the s e circums tance s , whatever may have been the precise re lation of the brothe rs during the late r ye ars of their joint live s , the re is a high de gre e of probability that Adikonda would de s ire to re tain, by all me ans in his powe r, the ze mindary in his own line ; and would be unwilling to e xpos e the wife to whom he was attache d to the chance of falling from the rank which e ve n as adoptive mothe r of a reigning Rajah s he would pos s e s s , to that of a widow e ntitle d only to be maintaine d, howe ve r honourable , by he r brothe r-in-law.

The re be ing the n this ante ce de nt probability that he would e xe cute s ome s uch docume nt as that which be ars his admitted s ignature, what is the dire ct evidence to shew that he re ally did or did not e xe cute it. The witne s s e s , whos e name s are upon it, are Sumanto the tre as ure r, Siva Purohit, now the De wan of Raghunadha, but forme rly the s e rvant in the like capacity, firs t of Adikonda, and afte rwards of the M ahade vi, B alaji the s cribe , and Damapattojosi the Purohit. Of these, the two former are the only subscribing witnesses in the strict sense of the term; Balaji signing only as the writer of the instrument; and Damapattojosi, k though named as a witness, not having signed at all. Again, the only one of the four who deposes to the execution of the instrument is Sumanto. His story is, that on the 20th of November {i.e., on a day between which and the day of the Rajahs death two clear days intervened), at about 3 prohoros of the day (i.e., about 3 p.m.), the Rajah sent the peon Narayani to call in any respectable people (bollolokho) that might be in the outer hall (sodoro); that the peon returned with Siva Purohit, Damapat tojosi, Bodhrosanto, Bhagirathipani, and Balaji; two other persons, viz., Boyiduorahu and Gouro Bondhari, being already in the room when the order was given; that Balaji was then sent out to bring paper, pen, and ink; that on his return he wrote the authority to adopt under the Rajahs dictation, making first a draft and afterwards a fair copy ; that the list of witnesses which appears in Balaji’s handwriting on it was also written at the Rajahs dictation, first in the draft and then in the fair copy; that the subscribing witnesses Siva Purohit and the witness himself then signed, Damapattojosi excusing himself, with the Rajahs consent, from signing, on the ground that he was an old man and could not see; that Balaji also wrote his name as the writer of the document; that the Rajah himself traced the sankhu and chakrun at the top, and wrote his own signature at the bottom of the document j that they all wrote with the same pen dipped in the same ink-bottle; that it took about two ghadyahs (one and a half hour) to complete the transaction; and that afterwards, and when about the same space of the day remained, the witness, by order of the Rajah, took the document to the Mahadevi, who, while it was being prepared, was in " the chapel," being a room near that of the Rajah, and put it on the threshold, the door being ajar. The witness also states that nearly two ghadyahs before this, and previously to the preparation of the document, he had taken to the Mahadevi, by order of the Rajah, the keys of the Treasury House, and had said to her, "The keys of the other Treasury House were given you, now keep the keys of this treasury and all the property therein."

This witness is directly contradicted by the three other persons whose names are upon Q, Siva Purohit, Balaji, and Damapattojosi. The account which they give of the fabrication of Q is the following —About ten, or most twelve, days after the death of Adikonda,] Sumanto brought to Balaji a paper having upon it Adikondas signature, and the sankhu and chakrun, but otherwise blank, together with a draft, and told him to fair-copy the draft upon the blank paper. Balaji, according to his own account, at first refused, but afterwards obeyed. The result was Q, as it now stands, with the exception of the signatures of the subscribing witnesses. The paper in that state was given by Balaji to Sumanto, who took it to Siva Purohit for his signature. He swears that he refused to sign it, and denies that the signature upon it which purports to be his is of his handwriting. The value of that denial will be presently considered. The paper was subsequently (i.e., about fourteen days after Adikondas death) taken by Sumanto to Damapattojosi, who also swears he refused to sign it as witness.

The question is, which of these two stories is to be believed. The last, their Lordships think, must be taken with the qualification that, notwithstanding the denial of Siva Purohit, the disputed signature is of his handwriting. That it is so was found by the Civil Judge, and his finding does not depend on mere comparison of handwriting. Its correctness seems to their Lordships to be placed beyond doubt by the exhibit L L, in which, writing to Iswara Puttro as late as the 10th of July, 1869, he speaks of the document executed by the late Rajah to the Mahadevi, and urges his correspondent to use his best endeavors to get from Government a recognition of it. It is clear, therefore, that if Q be a forgery Siva Purohit was at one time a consenting party to that forgery. The Civil Judge has undoubtedly recorded a most unfavourable opinion of Sumanto. He says of him " H. S. lied and prevaricated grievously. I could not believe anything one bit the more readily from the fact that he asserted it." Yet the credibility of this witness, however small, is nevertheless superior to that of Siva Purohit and Balaji. Notwithstanding his demeanour he may have told what is substantially a true story; whereas the others must either have been guilty of perjury in this suit, or have been conscious actors in an antecedent forgery, Damapatto- josi is not open to this imputation, and is apparently a more respectable witness. All that the Judge says against him is that "he protested too much." But there is a high degree of improbability in his story.

The prima facie improbability that there should exist any blank paper with the genuine signature of the deceased Rajah upon it is no doubt removed by the evidence of Binayaka, and the production of the four blank papers similarly signed, which that witness swears he discovered eighteen months before he gave his deposition (i.e., early in 1870) in the late Rajahs record box. There is, however, no proof that at the time when Q is said to have been forged any such papers had been found; and the subsequent discovery of them may have suggested the present answer to the Plaintiffs case. If, however, it be assumed that the supposed forgers had but one such paper in their hands ten days after the late Rajahs death, it is obvious that such a paper was very precious; and it is inconceivable that they would have inserted Damapattojosis name in the list of witnesses until they were assured of his willingness to sign. If, again, they had then in their hands more than one such paper, they would naturally, on Damapattojosis refusal to join in the conspiracy, have destroyed it, and fabricated a similar instrument on which his name should not appear. The story then told by him is less probable than that told by the Plaintiffs witnesses in order to account for the non-signature of it by him; for he is shewn to be a person of weak sight, and not to have been in the habit of writing with a pen. All these three witnesses against the document are shewn to be now more or less dependent upon the Defendant;, and there is little, if any, other affirmative evidence in support of the Defendants case.

On the side of the Plaintiff, however, there is a considerable amount of direct testimony in confirmation of that of Sumanto.

Of the witnesses in this category, who are vouched by Sumanto as present when it was prepared and executed, are Boyiduorahu, the native doctor; and Gouro Bhondhari, the barber, who are said to have been with the Rajah when he sent the peon to call in the respectable people; Narayana Bisoyi, the peon sent; and Bordhono Santo, and Bhaghirathipani, who were brought in with Siva Purohit, Damapattojosi and Balaji. They generally confirm Sumantos account of the transaction. It is true that all are more or less discredited by the Civil Judge; that the barber is not relied upon even by the Respondent as worthy of credit; and that the evidence of the peon, who says that he was continuously in the room, is of little value. But the others, particularly Bordono Santo, who was related by marriage to Adikonda, seem to be of respectable position, are persons who were not unlikely to be present; and their statements, notwithstanding some slight discrepancies, in the main confirm Sumantos account of the transaction. In further corroboration of the Plaintiffs case his counsel rely on the evidence of the Mahadevi and of Iswara-Puttro.

The latter is the vakeel who in 1868 and 1869 prosecuted the Mahadevis claim before the Government at Madras. He seems to have been employed as a vakeel by Adikonda in his lifetime ; and there is nothing to impeach his general respectability. His testimony is to the effect that having been sent for by the Rajah, on account of some pending suit, he was at the house after the execution of Q; and that on the next day, that is, on the 21st of November, the Rajah, being then in full possession of his faculties, told him that he had the day before executed in the Mahadevis favour a written authority to adopt. This evidence does not justify the observation of the Civil Judge that " it amounts to nothing," since, if believed, it would establish a clear admission by the Rajah of his antecedent act. It is, however, open to the exception taken by Mr. Norton, viz., that it is but evidence of an oral admission, said to have been made by a deceased person, and, as such, incapable of contradiction, and open to suspicion. His presence, moreover, at the place at the time in question is not sworn to by any other witness, and is not very satisfactorily accounted for.

The evidence of the Mahadevi is to the effect that on the morning of the 20th of November she was weeping over the Rajah, who was very ill; that he told her in the event of her not having a male child to adopt one, and promised to give a written authority for the purpose; that in the evening of that day, whist she was sitting within her room with the door a little ajar, Sumanto brought a paper and left it on the threshold, saying it was the authority to adopt; that afterwards, and when the lamp was lighted, i.e., after sunset, she took the paper to the Rajah, nobody else being in the room; that he took it from her and said, " I have given you written authority—you are pregnant. You will bring forth a male child, i if not, you will adopt," and then returned it to her, and that she afterwards kept it in her box. She identified Q as that paper. She further disposed that the key of the goutaghoro was brought to her by Sumanto before he brought the document; and afterwards, in answer to a question not given in the record, said, " The keys and this written authority were given to me in the evening when there were two ghadies to sunset."

Of this witness the Civil Judge has recorded the following opinion —" On the face of her deposition, I see no reason to think her untruthful, but rather the contrary; and yet in O.S. No. 9 of 1870 she put forward, and supported with much evidence, three assertions on important facts which have been declared false, or have been disbelieved, viz. (1st) division between Adikonda and the Defendant, it being admitted by her in this suit that they were undivided ; (2nd) an examination of the treasuries, shewing that they contained but a small sum, with a view to reduce the amount recoverable by the Plaintiff against her, if he should be successful in that suit; (3rd) the gift of the jewels and cash by Adikonda to her. And now she has put forward Q, which is certainly a forgery; she has supported it with much evidence; she has sworn that Adikonda himself, in speaking to her, acknowledged it as his; and she has contradicted the story told by all her witnesses."

Of the objection to the Mahadevis credit, which the learned Judge founds upon Q, and the evidence given by her in support of its execution, it is enough to observe that he thereby begs the question which he had to try, viz., whether it was a forgery or a genuine instrument. He would hardly have done this if he had not previously, and by comparison of handwriting, satisfied him self that the signature of Adikonda was itself forged. That this foregone conclusion, which must now be taken to be erroneous, must materially have affected his general estimate of the credibility of the Plaintiffs witnesses is therefore shewn by the passage just cited from his judgment. Nor do their Lordships attach much more weight to his other objections to this ladys credit. They do not find any material contradiction between her statement in this suit and those of the other witnesses. There is undoubtedly a discrepancy as to the time when the key was delivered (as to which only Sumanto and the native doctor speak). But that the Mahadevi, a native woman examined from behind the Purdah, should have made some confusion as to the time that elapsed between the two acts of delivery does not, in their Lordships view, materially affect her credit. Again, her contention in the former suit that her husband and the Defendant were undivided brothers, may, under the circumstances, have been raised bond fide. The fact which was found against her cannot have been in her own personal knowledge, and it was one which before that decree was not perfectly clear. That she should have undervalued, if she did undervalue, the amount of property in the goutaghoros will surprise nobody conversant with native suits in India. On his side, Raghunadha grossly exaggerated the amount and value of that property. Again, the alleged gift of the jewels and cash to her was no doubt found by the same learned Judge against her. There may have been no appeal against his decision (the adoption having then taken place), but it is obvious that the fact of that gift is again in issue in this suit, and that it was more or less determined in the other upon the view which the same Civil Judge then formed of the credibility of the Plaintiffs witnesses in this suit. There is, however, one circumstance connected with that suit of 1870 which affects the credibility, not only of the Mahadevi, but of other witnesses for the Plaintiff, and ought here to be con sidered. That circumstance is the date on which the gift was said to have taken place. The Mahadevi, in that as in the present suit, deposed that she received the key and the written authority to adopt on the same day. And this is the story now told by those of the witnesses who in their depositions in the former suit were silent on the authority to adopt. But the date assigned to the gift of the jewels throughout the suit of 1870 was " two days " before the Rajahs death, which, in common parlance, would import, and seems to have been so understood, the 21st of November. The date assigned to the transaction in this suit is a-date between which and that of the Rajahs death two clear days intervened, i.e., the 20th of November.

This circumstance would be almost fatal to the Plaintiffs case as to Q if it were possible to suppose that that case had been got up after the evidence in the jewel suit was given. But the depositions in that suit were taken in December, 1870; and when it is shewn beyond all doubt that the Mahadevi had at least as early as o the 18th of March, 1869 (in her petition), stated the date of the alleged authority to be the 20th of November; that the witnesses who impeach Q, which bears that date, admit it to have been in existence ten days after the Rajahs death, and say that Sumanto was the concoctor of the fraud; it is impossible to suppose that Sumanta would ever have treated the authority to adopt as executed only on the 21st. Nor, indeed, is it easy to see why the gift of the jewels should have been represented to have taken place on that day. One of the issues contested in the cause was whether Adikonda was of sufficient mental capacity to make the gift; and the nearer to the time of his death the date of the gift was laid, the greater the difficulty of shewing his capacity of making it. There may have been some strange confusion in the jewel suit as to the effect of the term " two days before his death," and misapprehension as to the date to which the witnesses then meant to depose. Their Lordships are unable further to explain this discrepancy ; but for the reasons above given they do not think that it seriously affects the question now under consideration.

Their Lordships desire next to say a few words about two documents of which much has been said in the argument before them. The first is marked EE. Their Lordships are not inclined to adopt the statement of the Defendant, that he signed this security bond without a knowledge of its contents. They do not, however, attach much weight to the words, " as soon as I, or my son, from my giving him in adoption, get possession of our zemindary," as evidence in favour of the genuineness of Q; for the utmost that any inference to be fairly drawn there from would establish is, that in January, 1869, the Defendant knew that the Mahadevi had asserted an authority to adopt (a circumstance which is otherwise probable); contemplated the possibility of the power being established and his son adopted under it; and was persuaded by his creditor to provide against such a contingency. Siva Purohit was at that time acting for the Mahadevi; and if Q were forged, the Defendant would not then have had the knowledge which he says he subsequently acquired of the fabrication of the document. The most, then, that can be said of E E is that it contradicts his statement, that he knew nothing of an alleged authority to adopt until a later period.

The other document is E. It is dated the 26th of November, and contains a distinct statement by the Mahadevi that her husband, on the 20th of November, executed in her favour a written authority to adopt, to the effect of Q. It bears upon it the words (by whom written is not known), " Received 1st December evening, by hand, foul copy." The contention on the part of the Defendant is that this document affords no legal proof of the contents of the second urzi, stated in the Collectors letter of the 2nd of December to have been received by him from the Mahadevi; and that the terms in which he refers to that urzi are consistent with the supposition that the Mahadevi then put forward only an oral authority to adopt—Q not having then been fabricated. What the Collector says on this point is " In her second (letter) she adds that it was her husbands express wish that, if she brings forth a son, such son should succeed; if a daughter, that she (the widow) should then adopt a son." These terms are not necessarily inconsistent with those of K. All that can be said of them is that they do not state affirmatively that she alleged her husbands wish to have been expressed in writing, or on a particular day.

It is now admitted on both sides that R is not the original urzi; that it is not an official copy of it, which, as such, would be receivable as evidence; and that if grounds had been laid for proving the contents of the missing urzi by secondary evidence, R has not been shewn to be a true copy of it. Each side has imputed to the other foul play in respect of this document, but neither hypothesis is supported by proof, or probable in itself. The proceedings afford some grounds for thinking that the original urzi, as well as R, was produced from the Collectorate, but it seems that owing to a blunder, or, as suggested, a fraud on the part of a vakeel, R was shewn to the witnesses who were at first examined upon it as if it were the original, and that the original, if ever before the Court, has slipped out of the record.

It is to be regretted that when the mistake was discovered, and the contest about this document arose,

the Civil Judge did not

further investigate, by inquiry at the Collectorate or otherwise, the history of E and ascertain what had

become of the original urzi. Either party might have called on the Judge to do this, A but neither did so.

It was suggested by Mr. Norton in his reply, that their Lordships might now see fit to direct such an

inquiry. They do not, however, think that they would be justified in thus prolonging this litigation, inasmuch as they do not consider that a knowledge of the precise terms of the second urzi is essential to the determination of the issue before them. It is no doubt true that if the second urzi were in the terms of E, the Mahadevi must have asserted the existence of a written authority to adopt bearing the same date and to the same effect as Q, before the date at which Q is said by the Defendants witnesses to have been fabricated. But this circumstance, though it would throw considerable discredit on the Defendants case, would not conclusively disprove it; because it is possible that the document be said to exist might not have then actually come into existence. Again, if the second urzi were only in the terms of the Collectors letter, it would not, as has before been observed, be inconsistent with the existence of a written authority to adopt. Their Lordships will, therefore, deal with the questions before them on the assumption that the precise terms of the second urzi have not been proved, and leave the Plaintiff to bear the burden of having failed to establish that, before the 2nd of December, the Mahadevi asserted that she had a written authority of a particular date; and the Defendant to bear that of having failed to shew affirmatively that she then asserted only a parol authority. They now proceed to consider the grave objections to the genuineness o Q which the learned counsel for the Defendant have founded on the form and appearance of the document.

Their Lordships have the original before them, and so far as they can judge some of these objections are, to say the least, plausible. The list of witnesses in the handwriting of the writer of the instrument is unusual. It is also unusual for the witnesses to sign before the executing party, and to write their signatures immediately above his. The form of the instrument might naturally be expected to be that of exhibit X d, the translation submitted to Government by the Mahadevis vakeel with her petition of the

26th of July, 1869; and it has been contended on the part of the Appellant that that exhibit was purposely so modified in order to avoid the suspicions which a more literal translation of Q would have engendered. Lastly, it was contended that the appearance] of the document is inconsistent with the evidence which represents that all the signatures were written at the same time, and with the same pen, and the same ink; the fine signature of Balaji being written after those of the subscribing witnesses. Their Lordships were certainly at first much impressed by the last objection. It is however, to be observed that after insisting on the impossibility of all the signatures being written with the same pen, the Zillah Judge, on the 26th of November, 1871, saw fit to record that, having just had to look again at Q, he thought it quite possible, though not very likely, that with the pen that made the last " ro " of Sumantos signature Adikonda might write as well as his signature is written; and a good writer like Baliji might write as finely as his signature is written. Very different appearances may certainly be produced by the same pen and ink when used by different hands; and this is more likely to happen with the coarse ink that is used by the natives of India.

Again, as regards the objection founded on X d, it is to be observed that it seems to be satisfactorily answered by the Judge himself, who finds that X d is, in fact, the translation of a Telegu version of Q, taken down probably by a Telegu man from the mouth of Iswara Puttro, there probably being few persons at Madras who could read or translate an Oorya document like Q.

Of the list of witnesses, it is sufficient to say that it is difficult to see why it should have been inserted in Q, if it were not done by the order of the Rajah. The suggestion on the other side is that it was inserted in order to fill up the space above the Rajahs signa ture on the blank paper. But surely a forger would have had no difficulty in expanding the document so as to fill up the vacant space. Nor, as their Lordships have already remarked, is it likely that a forger would have inserted the name of Damapattojosi in that list until he had ascertained whether that person was willing to sign.

Upon the whole, then, their Lordships, dealing with this document as one which bears the genuine signature of Adikonda; and as containing a disposition which he was likely to

make; and weighing the evidence and the probabilities in favour of the Plaintiffs case, against the evidence and the probabilities in favour 1 of the Defendants case, have, not without doubt or difficulty, come to the conclusion that the former so preponderates over the latter that they ought to pronounce in favour of Q, as a valid written authority to adopt executed by Adikonda on the 20th of November, 1868.

This finding is, of course, sufficient to dispose of the present appeal; and renders it unnecessary for their Lordships to consider whether, if it had been the other way, they could have affirmed the decree of the High Court upon the grounds stated in the judgment of Mr. Justice Holloway. The great importance, however, of the subject induces them to make some observations upon it.

That, according to the law prevalent in the Dravada country, which includes the district in which the Chinnakimidy zemindary is situate, a Hindu widow, not having her husbands express permission, may, if duly authorized by his kindred, adopt a son to him, is a proposition which cannot now be controverter. The law has been so settled by the decision of this Committee in the Ramnad Case; and the principles and authorities upon which it rests are elaborately considered and reviewed, both in the judgment of the Committee ((1) 12 Moores Ind. Ap. Ca. 260.), and in the judgment of Mr. Justice Holloway in the same case ((2) 2 Mad. Hi. C. Key. 200.).

The two judgments, however, though agreeing in this general conclusion, which was all that was necessary for the determination of the cause, were by no means ad idem on several points, and notably on the nature of the authority required.

Mr. Justice Holloway intimated an opinion that, if the require ment of consent is more than a moral precept, the assent of any one of the husbands sapindas would suffice. This Committee was far from adopting that broad proposition. It pointed out that on the question, who are the kinsmen whose assent will supply the want of a positive permission from the husband, the authorities are extremely vague; that there exists a broad distinction between cases in which the deceased husband was a member of a joint and undivided Hindi family, and those in which, he being separated, the widow has taken his estate by right of inheritance; but that, even in the latter case, the assent of some person who stands to her in the relation of protector may be requisite. It is unnecessary to repeat at large this portion of their Lordships judgment on] that occasion, which is to be found at pp. 441 to 443 of Mr. Moores Report.

The question has since come before the Sudr Court of Travancore in the case reported in the Madras Jurist ((1)8 Madras Jur. p. 58.) of February, 1873, and before the High Court of Madras in the present case. In the Travancore Case the Court, though a foreign Court not bound by the decisions of this tribunal, in a judgment of remarkable ability and research, adopted the principles suggested by this Committee as those which should govern the determination of the question in the case of an undivided family, and ruled that the assent of certain separate dayadies of the deceased husband was not sufficient to validate an adoption by a widow, to which the husbands undivided brother and the head of the undivided family had not assented. In the present case Mr. Justice Holloway, adverting to what was said by this Committee in the Ramnad Case concerning an undivided family, observed, " whether this be so or not, it has no application to the present case, in which the property is to be held in severalty, and not in coparcenary." And he finally formularized the following propositions —

1. 1. The adoption by the widow, with the assent of a sapinda, is a substitute for the actual begetting by a sapinda.

2. 2. That the argument from analogy is in favour of the assent of one sapinda rather than more.

3. 3. That his assent is not to supply a capacity for rights, but a capacity for action.

4. 4. That proximity to the deceased with respect to rights of property is wholly beside the question, and if this were not so the rule would be entirely defeated.

5. 5. That in the present case that capacity has been sufficiently supplied, as, in the law which this assent of sapindas has superseded, a child begotten by this assenting sapinda would have been undoubtedly legitimate.

Their Lordships cannot adopt these propositions as a correct exposition of the law.

They observe, in the first place, that they are all more or less IA founded on the assumption that the law of adoption now prevalent in Madras is a substitute for the old and obsolete practice of raising up seed to a deceased husband by actual procreation; and that the limitations, if any, upon the power to adopt are to be traced by analogy from that practice. In the Ramnad Case ((1) 12 Moores Ind. Ap. Ca. 441.) their Lordships, after stating their general conclusion, added the following observations " They think that positive authority affords a foundation for the doctrine safer than any built upon speculations touching the natural development of the Hindu law, or upon analogies, real or supposed, between adoptions according to the Dattaka form, and the obsolete practice, with which that form of adoption co-existed, of raising up issue to the deceased husband by carnal intercourse with the widow. It may be admitted that the arguments founded on this supposed analogy are in some measure confirmed by passages in several of the ancient treatises above referred to, and in particular by the Dattaka Mimdmsa of Vidy Narainsamy, the author of the Madhavyam ; but, as a ground for judicial decision, these speculations are inadmissible, though as explanatory arguments to account for an actual practice, they may be deserving of attention."

To these remarks of their predecessors their Lordships adhere. They desire further to observe that it is to their minds extremely doubtful whether the supposed analogy is sufficient to support Mr. Justice Holloway’s propositions in their integrity. The myth of Satyavaty referred to by Narainsamy, and most of the texts relating to the obsolete practice which are to be found collected in Colebrookes Digest and elsewhere, all imply an authority external to the widow as the justification of her act, an act repugnant to the general rule of asceticism and celibacy imposed upon Hindu widows. Most of the texts speak expressly of " the appointed " kinsman. By whom appointed ? If we are to travel back beyond the Kali age, and speculate upon what then took place, we have no reasonable grounds for supposing that a Hindu widow, desirous of raising up seed to her deceased husband, was ever at liberty to invite to her bed any sapinda, however remote, at her own discretion; and that his consent of itself constituted a sufficient authorization of his act.

Positive authority, then, does not do more than establish that, according to the law of Madras, which in this respect is something intermediate between the stricter law of Bengal and the wider law of Bombay, a widow, not having her husbands permission, may adopt a son to him, if duly authorized by his kindred. If it were necessary, which in this case it is not, to decide the point, their Lordships would be unwilling to dissent from the principle recognised by the Travancore Case, viz., that the requisite authority is, in the case of an undivided family, to be sought within that family. The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate, but in food and worship; therefore not only the concerns of the joint property, but whatever relates to their commensality and their religious duties and observances, must be regulated by its members, or by the manager to whom they have expressly or by implication delegated the task of regulation. The Hindu wife upon her marriage passes into and becomes a member of that family. It is upon that family that, as a widow, she has her claim for maintenance. It is in that family that in the strict contemplation of law she ought to reside. It is in the members of that family that she must presumably find such councilors and protectors as the law makes requisite for her. There seem to be strong reasons against the conclusion that for such a purpose as that now under consideration she can at her will travel out of that undivided family and obtain the authorization required from a separated and remote kinsman of her husband.

Mr. Justice Holloway, however, not directly determining anything adversely to the principle affirmed in the Travancore Case, distinguishes the present on the ground that, although the family must be taken to be undivided, the particular property is to be held in severalty and not in coparcenary. It is not necessary for the determination of this appeal that their Lordships should decide whether this distinction can be supported, and they abstain from doing so. They may, however, observe that a distinction which is founded on the nature of property seems to belong to the law of property, and to militate against the principle which Mr. Justice A Holloway has himself strenuously insisted upon elsewhere ((1) 2 Madras, H. C. R. 229.), viz., that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.

Their Lordships desire further to observe that, even if the distinction suggested were adopted, it would be necessary, in order to maintain the present adoption as one duly made without the permission of the husband, to go the full length of ruling that the assent of one separated and distinct sapinda (and that the natural father of the child taken in adoption) is an authority sufficient to validate the act.

Mr. Justice Holloway, indeed, in one place treats Raghunadha as an assenting party to the exercise of the power to adopt, though not to the particular adoption.

Their Lordships, however, are of opinion that even this general assent is not established by EE, or by the other evidence in the cause. The parol testimony on this point is untrustworthy; and EE, taking it at its highest, is consistent with the supposition that Raghunadha then intended only to provide for the contingency of the Mahadevis establishing the authority to adopt, which she said she had derived from her husband, and exercising it in favour of his son. It must, therefore, be taken that the only sapinda of Adikonda who is shewn to have assented to this adoption is the Rajah of Piddakimidy, the father of the adopted child, and their Lordships have already intimated their grave doubts whether such assent would in any case have constituted a sufficient authority.

In the present case there is an additional reason against the sufficiency of such an assent. It is admitted on all hands that an authorization by some kinsman of the husband is required. To authorize an act implies the exercise of some discretion whether the act ought or ought not to be done. In the present case there is no trace of such an exercise of discretion. All we know is that the Mahadevi, representing herself as having the written permission of her husband to adopt, asked the Rajah of Piddakimidy to give her a son in adoption, and succeeded in getting one. There is nothing to shew that the Rajah ever supposed that he was giving the authority to adopt which a widow not having her husbands permission would require.

Their Lordships have deemed it right to make these remarks, though not essential to the determination of the present appeal, because this doctrine of the power of a widow, not having her husbands express permission to adopt a son to him, which, before the decisions in the Ramnad Case had not assumed very definite proportions, has obviously an important bearing upon the law of property in the Presidency of Madras, It may be the duty of a Court of Justice administering the Hindu law to consider the religious duty of adopting a son as the essential foundation of the law of adoption ; and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the suc cession of property—and it may be in the case of collateral succession, as in the present instance, the rights of parties in actual possession—dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it; and the propositions of Mr. Justice Holloway appear to their Lordships calculated unduly to enlarge those limits. Their Lordships have further to observe that the decree, as it stands, makes the Defendant accountable for mesne profits from the time when he was placed in possession by the order of Government. That was about September, 1869. At that time Raghunadha was, in default of a son of Adikonda, natural or adopted, unquestionably entitled to the zemindary. The adoption took place on the 20th of November, 1870, and the plaint states that the cause of action then accrued to the Plaintiff. The plaint itself was filed on the 15th of December, 1870, and there is no proof of a previous demand of possession. Their Lordships are of opinion that the account of mesne profits should run only from the commencement of the suit. They think that the decree, with that modification, ought to be affirmed, and they will humbly advise Her Majesty accordingly. But their judgment must be understood to proceed on the establishment of Q as a genuine permission to adopt, and not upon the ground upon which the High Court principally relied. The costs of the appeal must follow the result.