Nugent Grant (with S. Varada Acharya and K.S Champakesa Ayyangar) for appellant in Appeal No. 199 of 1919 (the Maharaja of Kolhapur).Nugent Grant.—The grant must be construed in the light of the then events. The adoption, as a fact, of the first defendant's father was even before the grant put forward before the Government, who expressly refused to recognize the adoption according to the policy then prevailing. The grant expressly stated that the Raja died without a natural or adopted son; hence it must be taken that the Government wanted to benefit the other heirs of the Raja and that they definitely intended to exclude for ever the adopted and illegitimate sons of the Raja. There is only one gift under the grant, that is, the grant to all the widows jointly of what is known in Hindu Law as a widow's estate with all its legal incidents. The grant of such an estate is legal; Ram Bahadur v. Jager Nath Prasad(1), Vengamma v. Chelarnayya(2) and Mahomed Shumsool v. Shewukram(3). The rest of the grant is a mere statement of the course of inheritance in the order recognized by Hindu Law, according to which if the daughter survived all the widows she would get a spes successions and would inherit for her life. After the daughter, the heirs of the Raja, next in order to the daughter according to Hindu Law, would “inherit.” “Next” in “next heirs of the Raja” in the grant does not mean nearest to the Raja but next to the daughter in the order of inheritance: Eastwood v. Lockood(4). The word used is “inherit” and not “take”; hence the usual course of inheritance alone is intended. An adopted son never inherits after the daughter; hence it must be taken that even if one were to be adopted after the grant he was intended to be excluded by the grant. Similarly the illegitimate sons. If we exclude the adopted son and the illegitimate sons, the only heirs according to Hindu Law who were living on the death of the last Rani, when alone the heirs are to be ascertained according to the grant, are the agnates.K. Rajah Ayyar (with A. Duraiswami Ayyar and Nanabhai Davey) for third defendant.—What is given to, the widows is not a widow's estate but only a life estate. “Inherit” means only “take”; Bhagabati Barmanya v. Kalicharn Singh, Watkins v. Frederick. There is also a gift to the daughter, made by the grant which is not a contingent one but an absolute vested interest in remainder capable of being transmitted to her heirs. Under the Mayukha Law which governs these parties even female donees take an absolute estate; Navalram Atmaram v. Nandkishor Shiv Narayan, Gulappa v. Tayawa, Mayne's Hindu Law, page 893, paragraph 611. Recent decisions have established that even female donees take absolute estates unless restricted by grant; Ramasami v. Papayya(5), Ramchandra Rao v. Ramachandra Rao(6), Mahim Chandra Sarkar v. Hara Kumari Dasee(7), Sambasiva Ayyar v. Venkataswara Ayyar(8). Kanakammal v. Bahtavatsulu Naidu(9), Ramaswami v. Lakshmidevi(10), Ramanuja Aiyangar v. Satagopachariar(11), Kumud Krishna Mandal v. Jogendra Nath Sarkar(12). The use of the word “absolute” in a grant or gift is not necessary to make the gift an absolute one; McCormick v. Simpson(13). If what was given to the widows was not a life estate as is expressly stated in the grant but is a widow's estate, it would he divested on adoption; see Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba(14). No stranger can make a grant of an estate to a woman giving her a widow's estate therein. This point is not decided but is left open in Vengamma v. Chelamayya(15). Nor can he prescribe a different course of succession from that prescribed by law; Tagore Case(16). The persons mentioned in the grant take as personae designatae. The terms of the grant alone govern the rights of parties; Baboo Beerpertab Sahee v. Maharaja Rajender Pertap Sahee(17), Nawab Malka Jaan Sahiba v. The Deputy Commissioner of Lucknow(18) and Venkata Jagannadha v. Veerabhadrayya(19). A widow's estate has three special incidents; (a) an adoption divests the widow of her estate, (b) the widow has power of alienation for certain purposes and (c) the line of succession thereafter cannot be changed. If any one of these incidents is absent in any given grant, it confers upon a widow only a life estate. No power of alienation is given to the widows by this grant. Moreover the grant gives the daughters an estate to take effect after the death of the widows. Bhupendra Krishna Ghose v. Amarandra Nath Dey, Gooroo Das Mustafi v. Sarat Chunder Mustafi, Mussamat Bhagbutti Dase v. Chowdry Bholanath Thakoor, Bepin Behari Bundopadhya v. Brojo Nath Mookhopadhya. “Failing her” in the grant means “failing her and her heirs.” Words necessary can be supplied is construing a grant; see Jarman on Wills, 6th Edn., Vol. 1, page 581. The words “failing her” do not make the estate given to the daughter any the less a vested remainder; Rewun Persad v. Mussumat Radha Beeby. Section 19, Transfer of Property Act, sections 83, 106, illustrations (c) and (d) to section 107 and section 108 of the Indian Succession Act; compare Jarman on Wills, 6th Edn., Vol. II, page 1312, on alternative gifts. Death, by itself, is no contingency in law; Lallu v. Jagmohan, Rama Bai Ammani v. Rajah Sahib and Finch v. Lane. “Next heirs” means heirs next to the daughter according to law, i.e, the daughter's son; Eastwood v. Lockwood.A. Krishnaswami Ayyar (with M. Patanjali Sastri, K. Balasubrahmanya Ayyar, P.S Chandrasekhara Ayyar and V. Govindaraja Acharya, and K. Krishnaswami Ayyangar), for defendants Nos. 4 and 6 to 11.—The grant must be construed according to the law prevailing at that time; Abdul Aziz Khan v. Appayasami Naicker. According to the then law, an illegitimate son inherited after the widow and the daughter; see Exhibit D-240, Datti Parisi Nayudu v. Datti Bangaru Nayudu and Parvathi v. Thirumalai. That these decisions misunderstood the text of Yagnavalkya is pointed out in Meenakshi Anni v. Appakutti, which has established the present law that the widow and the illegitimate son share together; hence the grant cannot be presumed to have negatived the rights of illegitimate sons. Under the grant the widows took a life estate; Gooroo Das Mustafi v. Sarat Chunder Mustafi, Bhagabati Barmanya v. Kalicharn Singh; and the daughter was given a contingent life interest upon her surviving the widows. Even if it was a vested one it was defeasible on her death before the widows. Even a vested interest may be made defeasible. It is clear from the grant and from Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba, that the grant gave two life estates and a remainder. Even if what was given to the widows was practically a widow's estate, remainders can be given thereafter; Mahomed Shumsool v. Shewukram, Mussamat Bhagbutti Daee v. Chowdry Bholanath Thakoor, Radha Prasad Mullick v. Ranee Mani Dasee, Radha Prasad Mullick v. Ranee Mani Dassee and Ram Bahadur v. Jager Nath Prasad. The words “next heirs” might exclude the adopted son. They mean the heirs nearest to the Raja and not next to the daughter in order of succession, whether as on the date of the grant or as on the death of the last Raui. In the former case the adopted son does not take as there was then no adoption; in the latter he and the illegimtiate sons take together; Chidambara Gounden v. Sellappa and Rajani Kant Mandal v. Kanti Chandra Mandal. Heirs of “A” can be the direct objects of bounty by “B” and such gifts are gifts to personae designatae: see sections 80 and 83, Indian Succession Act; Norton on Deeds, Second edition, page 317, Theobald on Wills, Seventh edition, pages 330, 333, Hawkins on Construction of Wills, Second edition, page 123. If “next heirs” really means heirs next to the daughter, an agnate cannot come in before the illegitimate son. “Next heir” means “true heir” on the death of the life tenant and not next in order; Benode Behari Bose v. Nistarini Dassi, Doe v. Chaffey, Hutchinson v. National Refuges for Homeless and Destitute Children, Owen v. Gibbons, Hawkins on Construction of Wills, page 132, Lucas Tooth v. Lucas Tooth, Maher v. Toppin, Stockdale v. Nicholson, Boys v. Bradley, Watkins, In Re, Mayberry v. Lightfoot. If an heir is not given any legacy by a will he cannot be excluded from inheriting in case of intestacy unless there is a valid bequest to another of all the residual estate. Kanjamani Dasi v. Nikunja Behari Das.T.L Venkatarama Ayyar for fifth defendant.—“Next heirs” means nearest amongst the heirs. The rule is that amongst them the nearer excludes the more remote. Hence such of the Mangala Vilas people as are sons exclude the grandsons by the adopted son as well as the grandsons by the Mangala Vilas sons; Watkins, In Re, Mayberry v. Lightfoot, Marsh v. Marsh, Jarman on Wills, Sixth Edn., Vol. II, page 1632.K.S Venkataramani for fourteenth defendant, contended that “next heir” in the sense of the nearest heir to the Raja was already ascertained by the Government at the time of the grant in 1862 and therefore the use of “next heir” in the grant itself is not as a term of art but it means only next to the daughter in the order of succession. Hence the nearest agnate succeeds.T.R Ramachandra Ayyar (with C. Krishnaswami Rao, A.V Viswanatha Sastri and A. Raghunatha Rao) for first defendant.— The prevailing policy of the British Government up to 1856 was not to recognize any adoption by a native ruler but to annex his State on failure of natural sons. It was to prevent any such annexation that the Raja married 17 wives in 1852 in the hope of getting a son by any one of them. This policy was changed in 1856. There was no adoption before the date of the grant in 1862; hence we cannot presume any intention on the part of the grant or either to exclude the later adopted son from inheritance or to prevent a future adoption. “Next heirs” in the grant means “heirs” of the Raja at the time the succession opens, i.e, at the time of the death of the last Rani; see section 80, Indian Succession Act, and Doe v. Chaffey. Even if we are to take the date of the grant as the crucial date, the adoption relates back to the date of Raja's death and an adopted son is exactly like a natural son for purposes of inheritance; Pratapsingh Shivsingh v. Agarsinghji Rojasangji. Even if excluded under a prior clause in a will a person may take under a later clause. “Failing her” means “if she should the before the last surviving widow.” Section 111, Indian Succession Act and illustration (e) and section 23, Transfer of Property Act, show that a donee, like this daughter, with a contingent interest must be alive when the succession opens; otherwise next heirs step in. Hence the daughter who died before the last Rani actually got nothing by the grant; much less her son, as the gift to her was only for her life. The Mangala Vilas people were never recognized as heirs by the Government. Hence the adopted son alone benefits by the grant.N. Grant replied.C. Krishnasiuami Rao for first defendant.—The parties are Kshatriyas. Sword marriage is not one of the forms of marriage recognized by Hindu law for any caste. It is like gandharva marriage which is now obsolete and it is in fact nothing more than concubinage. He explained Ramasami Kamaya Naik v. Sundaralingasami Kamaya Naik as a case of regular marriage with all rites. The instances of sword marriages testified to in this case are not reliable and do not prove anything like a valid custom.K. Rajah Ayyar.—Pratapa Singh was not the legitimate son of his father. He referred to historical treatises and other documentary evidence on this point. Hence claimants like the Maharaja of Kolhapur who are the legitimate descendants of Shahji, the common ancestor, cannot legally be the heirs to the last Raja of Tanjore who was an illegitimate descendant of Shahji.S. Varada Achariyar.—Sword marriages are good according to law and custom. The children by such marriages are legitimate. Pratapa Singh was the legitimate son of his father and he was treated as such by every one at the time. In the absence of evidence to the contrary, especially after a long number of years, the presumption is that a couple living as man and wife are regularly married and that their children are legitimate. Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver, Mouji Lal v. Chandrabati Kumari, Sastry Velaider Aronegary v. Sembeecutty Vaigalie. Mangala Vilas children are not the offspring of sword marriages. The parties are Kshatriyas. He referred to the historical, documentary and oral evidence on this point.A. Krishnaswami Ayyar.—These are Sudras. Evidence on this point was then referred to. Sword marriage is a customary form of marriage prevailing at least in this family. Mangala Vilas ladies were regularly married in the sword form and were treated as wives. Even if there was no legal marriage, the ladies were permanently kept concubines and their children are illegitimate children entitled to inherit as the parties are Sudras.S. Varada Achariyar.—Even under Mayukha law the husband's consent was necessary for a widow to adopt. The Collector of Madura v. Mootoo Ramalinga Sathupathy, Ramji v. Chamau, Bhagirthibai v. Kahnujirav. In this case there I was no consent given by the Raja before his death for the adoption of the first defendant's father.T.L Venkatarama Ayyar.—It is the Mitakshara that governed these parties when they migrated and not the Maynkha which was of later origin. In the absence of any evidence as to when exactly the parties migrated or adopted Mayukha law the presumption is that the general law, viz., the Mitakshara governs people of the Deccan. He explained Huro Pershad Roy Chowdhry v. Shibo Shunkurao Chowdrani, Murle Dos v. Manicka Chetti. Even otherwise, the parties who settled in Tanjore must be deemed to have given up Mayukha on the evidence in the case.R. Ganapati Ayyar for K. Rajah Ayyar.—Even if any authority had been given by the Raja before his death for the adoption, it became extinct as soon as his estate was taken by the Government by escheat. The advent of a superior heir before actual exercise of the power to adopt puts an end to the power. See Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry and the cases following it. The existence of Mangala Vilas sons is a bar to adoption.K. Rajah Ayyar.—Supposing the adoption to be valid, the adopted son's rights became barred, as his rights were denied even in 1866 and he did not sue to establish his rights within six years from that date. Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri, Mohesh Narain Munshi v. Taruck Nath Moitra, Harnabh Pershad v. Mandil Dass, Ratnamasari v. Akilandammal, Venkoba Row v. Nataraja Chettiar, Somasundaram Chettiar v. Vaithilinga Mudaliar.T.R Ramachandra Ayyar.—The personal law of the parties, i.e, the Mayukha law governed those migrating to Tanjore; Balwant Rao v. Baji Rao. Under that law, express authority to adopt is not necessary; Chandramala v. Muktamala, Venkata v. Subbadra, Subbaroyer v. Subbammal. Even if the Mitakshara governs the parties, the adoption is valid as there was the consent of the Raja given before his death. If that was not a fact, the Raja's mother authorized the adoption and that was sufficient in law; The Collector of Madura v. Mootoo Ramalinga Sathupathy. Adoption is a religious act made for perpetuation of the lineage and for the salvation of the soul of the departed. Hence the existence of illegitimate sons who cannot confer spiritual benefit is no bar to adoption. Adoption has no connexion with the existence or otherwise of any estate. An adopted son stands exactly like a natural son and if there is any estate which he can take after his adoption he takes it. This is a case of seizure and regrant of an estate by the Government. Hence cases like Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry, which deal with the vesting of the estate in a superior heir before adoption, are distinguishable. The adopted son was expressly held by the Courts in all litigation till now, concerning this estate, not to have any interest till after the death of the last Rani which was in 1912; and hence he need not have sued even if there was any denial of his rights before. No suit for a declaration could have been successfully brought when he had no rights in esse; Kathama Natchiar v. Dorasinga Tevar, Bright v. Tyndall. Hence possession by others at that time was also not adverse to him. It is only if his right to possession was denied he should sue within 12 years. Tirbhuwan Bahadur Singh v. Rameshar Bakhsh Singh, Muhammad Umar Khan v. Muhammad Niaz-ud-Din Khan, Doddawa v. Yellawa.K.S Venhataramani, S. Varada Achariyar and T.S Raghunatha Rao each argued that his client alone was the nearest heir as a fact amongst the agnates.C.S Venkata Achariyar and V. Rajagopala Ayyar appeared for second defendant.K.V Krishnaswami Ayyar appeared for plaintiff (Receiver). T.V Muthukrishna Ayyar for twenty-third defendant argued that third defendant's adoption was not true and that his client was the nearest heir.K. Rajah Ayyar argued that third defendant's adoption was true and that he was the nearest heir.A. Krishnaswami Ayyar (with T.L Venkatarama Ayyar) argued that according to the recent Privy Council decision in Kamulammal v. Visvanathaswami Naicker the share of an illegitimate son would be half of what he would get had he been legitimate. If the Mangala Vilas claimants were legitimate, the adopted son can inherit no share in the estate, for there can be no adoption when there is a legitimate son. Hence the Mangala Vilas sons being illegitimate get half the estate.T.R Ramachandra Ayyar.—The recent decision in Kamulammal v. Visvanathaswami Naicker has held only that for calculating the shares which an illegitimate son will get in competition with a legitimate son he will be treated as a legitimate son along with the legitimate or adopted son and that he would get half of what he would get on that calculation. It did not lay down any new law that an adoption could not be made if there be an illegitimate son, or that a prior adopted son will be deemed to be disinherited for purpose of calculation. On this decision the adopted son must now get four-sevenths of the estate and not one-fourth of the whole estate as was decided by the lower Court in accordance with the previous decisions of this Court or half the estate as contended for by the other side.