Annie Besant v. G. Narayaniah

The Judgment of the Court was delivered by

White, C.J:— This is an appeal by the defendant against a judgment of Bakewell, J., sitting on the original side of this Court. The plaintiff asked: (a) for a declaration that he was entitled to the guardianship and custody of his two minor sons; (b) for a declaration that the defendant was not entitled to, or that, in any case, she was unfit to be in charge and guardianship of the said minors, and (c) for a direction that the defendant should hand over the boys to the plaintiff or to such other person as to the Court might seem meet.

2. In his judgment Bakewell, J., declared the sons to be wards of Court. The decree declared the plaintiff to be the guardian of the persons of the two sons and directed the defendant, on a date named, to band over the custody of the sons to the plaintiff as the guardian of their persons at the time the order was made appointing the plaintiff the guardian of the two boys, the elder boy was nearly 18 years of age and the younger boy was over 15. Under Section 8 of the Majority Act the effect of the order appointing the plaintiff guardian was to extend the minority of the boys until they were 21. In her amended written statement, the defendant did not plead to the jurisdiction, though the question of jurisdiction was raised in issue 1. The learned Judge observes in his judgment that the defendant abandoned the first two issues but that he thought it desirable that he should express an opinion on them in case the master should go before another Court. The question of jurisdiction was raised before us, and we thought it convenient to deal with this question in the first instance. It was not seriously contended on behalf of the plaintiff that we were precluded from doing this by reason of the defendant having abandoned the issue as to jurisdiction. It is quite clear that, if there was an “inherent incompetency” in the Court to make the decree in question and that is the defendant's contention—we are bound to consider and deal with this question of jurisdiction. If the defence of want of jurisdiction, which has been raised on appeal is good, it seems clear there is an inherent incompetency in this Court within the meaning of the decision of the Privy Council in Minakshi Naidu v. Subramaniya Sastri(1)

3. The suit was originally instituted in the Chingleput District Court and was transferred by consent from the District Court to this Court under the powers conferred by Cl. 13, Letters Patent of 1865. The first ground of objection to the jurisdiction was that taken it grounds 10 and 11 of appeal. This, ground of objection, it would seem, was not taken before Bakewell, J. It was argued that the Guardians and Wards Act being a Code, all Common law remedies by suit were superseded by that. It was also argued that the learned Judge could only exercise jurisdiction in the suit as a tribunal acting in the place of the Chingleput Court, and that, if the proceedings by suit in the Chingleput Court were defective that effect was inherent in the jurisdiction which the learned Judge purported to exercise in the suit after it had been transferred to this Court. The defendant did not contend that, assuming this Court had jurisdiction independent of the jurisdiction exercisable under the Guardians and Wards Act, this Court would have been precluded from exercising that jurisdiction if the suit had been instituted hare, though she did not admit that even in those circumstances there would have been jurisdiction in this Court. As regards this question, Section 3 of the Guardians of Wards Act, expressly provides that nothing in that Act shall be construed to take away any power possessed by any High Court established under the High Courts Act. So far as I know, there is no case in which it has been suggested that the effect of the Act is to cut down the jurisdiction of this Court when proceedings are instituted here, and guardians have been appointed by Indian High Courts under their general powers irrespective of the Act: see, for instance, In the matter of the petition of Jairam Luxmon(2). The Guardians and Wards Act is an Act passed in 1890 (8 of 1890) for the consolidation and amend neat of the law relating to guardians and wards. By that Act the earlier regulations and enactments were repealed. There is authority for the defendant's contention that, as regards suits instituted and tried in the Subordinate Courts, all Common law remedies were superseded by the Act. The Allahabad High Court, in Sham Lal v. Bindo(3), a case decided since the passing of the Act of 1890, took this view. The judgment however is based mainly on the argumentum ab inconvenienti, and there is considerable force in Mr. Ramaswami Iyer's suggestion that the suggested anomalies were not new, but had existed since the Act of 1861. This would also appear to be the view taken by the Punjab Chief Court in Ghasita v. Wazira(4). That case was referred to by Chandavarkar, J., in his judgment in Sharifa…(Original Defendant) v. Munekhan…(Original Plaintiff) .*(5).

4. The Bombay High Court, on the other hand, in Shairfa v. Muhekhan also decided since 1890, held that the right to proceed by suit was preserved. The question does not seem to have been considered by this. Court as regards the Act of 1890, but, in a case decided under the Act of 1861 this Court held that Act did not debar a District Munsif's Court from entertaining a suit by a Hindu father to recover the possession of his minor sons alleged to be illegally detained: see Krishna v. Reade(6). Mr. Trevelyan in his Law relating to Minors, Edn. 4, p. 99, with reference to the jurisdiction of District Courts in matters relating to the appointment of guardians observes: “There being nothing in the Guardians and Wards Act or in any other enactment to exclude their jurisdiction, the Courts in the districts can appoint guardians in suits brought for that purpose, bat, in consequence of the existence of a special procedure, such suits have fallen into disuse.”

5. It was argued that the decision with reference to the Act of 1861, such as the Madras case, to which I have referred, could not be relied on in support of the contention that the Common law right to proceed by suit survived the Act of 1890, since the earlier enactment was an enabling and not a consolidating Act and contained no indications of the intentions of the legislature to supersede the Common law right of action. There would be more force in this argument if indications were to be found in the Act of 1890, that it was the intention of the legislature that all right to take proceedings, otherwise than under the Act, should be superseded. There is certainly no express provision in the later Act that the legislature intended to put an end to the Common law right of action, and I am not prepared to infer from the general scope and tenor of the Act that this was the intention. Such indications as there are within the four corners of the enactment, in my opinion, rather point in the opposite direction. We find in S. 52, the section which amends the Indian Majority Act of 1875, the words “any Court of Justice” not “the Court exercising jurisdiction under the Guairdians and Wards Act,” though perhaps too much stress should not be laid on this, since in a section amending the Majority Act (where the words “any Court of Justice” occur), the words of the enactment which is amended would, as far as possible, be followed.

6. Again S. 48 of the Act of 1890 provides that an order under the Act is final and shall not be contested by suit. Nothing is said as to the right to sue in the first instance being taken away or affected by the Act. I think the question is governed by the general rule that a special remedy under a special statute does not take away the Common law right. The rule is thus stated in Ramayyar v. Vedachalila(7), which is cited in Zamindar of Etiayapuram v. Sarikarappa Reddiar(8): “Where a statute creates a new offence or gives a new right and prescribes a particular penalty or special remedy, no other remedy can, in the absence of evidence of a contrary intention, be resorted to; but where a statute is confirmatory of a pre-existing right, the new remedy is presumed as cumulative or alternative, unless an intention to the contrary appears from some other part of the statute.”

7. I am of opinion that the Act of 1890 did not take away any Common law or equitable jurisdiction which was vested in a District Court at the time the Act came into force. I think this objection to the jurisdiction fails.

8. I am also of opinion that the jurisdiction of the High Court in this suit is the same as if the suit had been originally instituted in the High Court, and that it is not restricted to such jurisdiction as could have been exercised by the District Court if the suit had not been called up by the High Court. Cl. 20, Letters Patent, no doubt, provides that the law or equity and rule of good conscience which is to be applied by the High Court, when exercising its extraordinary original civil jurisdiction, is to be the law or equity or rule of good conscience which would have been applied by the local Court. But this provision, in my opinion, does not take away or out down any independent jurisdiction which may be vested in the High Court. In the despatch of the Secretary of State, dated 14th May 1862, which accompanied the Letters Patent of that year, it is stated that by Cl. 13 the High Court is empowered to call for and to try as a Court of first instance any suit which the law requires to be instituted before some other tribunal, and that by the exercise of this power the High Court will be enabled to obviate all reasonable ground of complaint when it seems that any hardship or injustice is likely to result from the compulsory institution in a Zillah Court of a suit, which but for the change of system, might have been instituted in the Supreme Court. This is inconsistent with the suggestion that the extraordinary original jurisdiction of this Court is more restricted than its ordinary original jurisdiction. I see no reason for holding that this Court when trying a suit as a Court of extraordinary original jurisdiction should be precluded from exercising any jurisdiction which may be vested in it by law as a Court of original civil jurisdiction. I think this ground of objection also fails.

9. The objection to the jurisdiction which I now propose to consider is taken in ground 12 of the appeal. This raises the question whether the learned Judge had “power and authority” under Cl. 17, Letters Patent to appoint the father the guardian of the persons of the minors and to direct the handing over of the minors by the defendant to him notwithstanding the fact that the minors were outside the Presidency of Madras when the suit was instituted and when the judgment was pronounced. Jurisdiction as regards infants was expressly conferred on the Supreme Court of Madras by Cl. 32 of the Letters Patent of 1800, which created the Supreme Court. This clause authorized the Supreme Court to appoint guardians and keepers for infants and their estates according “to the order and course observed in that part of Great Britain called England.” The language of this clause is quite general and is not qualified by any limitations as to persons or places such as we find in other clauses of these Letters Patent: see, for instance, Cls. 4, 21, 22, 31 and 41. The High Court of Judicature at Madras was constituted by the Letters Patent of 1862, issued under the powers conferred by the Indian High Courts Act, 1861. By S. 8 of that Act on the establishment of the High Court, the Supreme Court and the Court of Sudder Adaulut and Foujdary Adaulut were abolished; and by S. 9 the jurisdiction of the abolished Courts was, subject to certain limitations, vested in the High Court. In addition to the general vesting of jurisdiction by this section, Cl. 16, Letters Patent of 1862, expressly conferred upon the High Court “the like power and authority with respect to the persons and estates, of infants, idiots and lunatics, whether within or without the Presidency of Madras as that which is now vested in the said Supreme Court of Madras.” Whatever may have been the purpose for which the words “whether within or without the Presidency of Madras” were introduced into this clause, it seems clear that it was the intention of the framers of the Letters Patent to confer in express terms upon the High Court, as regards the persons and estates of infants, the same jurisdiction as had up to that time been vested in the Supreme Court. The words “whether within or without the Presidency of Madras” seem to me to be inappropriate or, at any rate, unnecessary both in Cl. 16 which relates to jurisdiction as to infants and lunatics and in Cl. 17 which Relates to the insolvency jurisdiction of the High Court.

10. In Cl. 13, the clause which gave extraordinary civil jurisdiction to the High Court, the words are necessary in order to include any Courts subject to the superintendence of the High Court which might be situated without the Presidency. In the Letters Patent now in force, the Letters Patent of 1865, we find the words “whether within or without the Presidency of Madras” retained in Cl. 13, whilst in Cls. 17 and 18, which correspond to Cls. 16 and 17 respectively of the Letters Patent of 1862, for these words, the words “within the Presidency of Madras” were substituted. In the despatch of the Secretary of State, to which I have already referred, it is stated that the reason for the introduction of the words “whether within or without” was to make it clear that the Charter was meant to apply to certain extra local jurisdictions. It may be that the explanation for the omission of the words “or without” in Cls. 17 and 18 Letters Patent of 1865, is to be found in S. 3 of the Act of 1865 (28 Vict. C. 15), which empowered the Governor-General to authorize any High Court to exercise the powers conferred by the Letters Patent in a place not within the limits of the Presidency for which the High Court was established, since the effect of this enactment may have rendered the words “or without” in Cls. 17 and 18 unnecessary, though they would still be necessary for the purposes of the extraordinary original jurisdiction conferred by Cl. 13. However this may be, it seems clear that the words “within the Presidency of Madras” were used for the purposes of territorial limitation and that they did not qualify or restrict the powers of the High Court with regard to the guardianship of minors. The jurisdiction in connexion with the estates and persons of minors is, in my opinion, the jurisdiction with was exercisable by the Lord Chancellor in England acting for the Sovereign as parens patriae, when the Supreme Court in Madras was instituted. The learned Judge, in dealing with this question of jurisdiction, referred to the fact that the minors were domiciled in British India. I do not think, when he referred to the domicile of the minors, that, he meant to lay it down that an Indian domicile on the part of the minors was necessary to give this Court jurisdiction. Cl. 17 says nothing about the domicile of the minors. But it seems to me that the domicile of the minors, or the fact that they are Indians, may be factors to be taken into consideration when the Court is determining whether in a given case it will exercise jurisdiction decline to do so. If the domicile and residence of the father within the jurisdiction of the Court of Chancery in England would have been sufficient to give jurisdiction to the Court in England, I think the same facts mutatis mutandis would be sufficient to give jurisdiction here. Whether the Court either in England or here should exercise the jurisdiction on the strength of these facts alone is a different matter. In determining whether the Court will exercise its jurisdiction and in what manner is will exercise it, many factors may have to be taken inti consideration, amongst others, as it seems to me, the question of domicile.

11. The defendant also contended that the decree was bad and must be taken to have been made without jurisdiction, because it must in “cessarily be ineffective.” She relied on the proposition in the Introduction to Professor Dicey's work, the “Conflict of Laws,” which is stated as General Principle No. 3, Edn. 2 p. 40). “The Sovereign of a country, acting through the Courts thereof, has jurisdiction over any matter with regard to which he can give an effective judgment, and has no jurisdiction over any matter with regard to which he cannot give an effective judgment.” Professor Dicey says (pp. 41 and 42) that a judgment which is “ineffective” means a decree which the Sovereign under whose authority it is delivered has not in fact the power to enforce against the person bound by it, and which therefore the Sovereign cannot, even if he choose, give his Court the means of enforcing.” It may be a question whether this principle has any application where, as in the present case, the Courts in England and the Courts in this country act through the same Sovereign. At any rate there can be little doubt that the Sovereign, acting through his Court, in England, has the means of enforcing this judgment. Whether the Court in England would think fit to do so, in the circumstances of this case, is, of course, another matter. The rule is thus stated by Professor Dicey: “A guardian appointed under the law of a foreign country (called hereinafter a foreign guardian) has no direct authority as guardian in England; but the Court recognizes the existence of a foreign guardianship, and may, in its discretion, give effect to a foreign guardian's authority over his ward”: Dicey's Conflict of Laws, Edn. 2, R. 133, p. 475. It does not follow that because the decree gives the father as guardian no authority in England, assuming it does not, the decree is “ineffective.” In the more recent English cases, the Courts in England have recognized the foreign guardian. “The position however in England of foreign guardians is a subject on which it is difficult to lay down precise rules, both because in all matters of guardianship the High Court acts mainly on its discretion and with reference to the particular circumstances of each case, and because the later decisions involve a recognition of foreign guardianship not in reality consistent with the doctrine of the earlier cases that the powers of guardians are strictly local:” Dicay's Conflict of Laws, Edn. 2, p. 478. I am not prepared to hold that the judgment in this case is ineffective and therefore bad.

12. The contention that the Court in England would say that the decree which it was asked to enforce had not been made by a Court of competent jurisdiction of course begs the question. It was argued that the Court of Chancery has wider powers than any Court acting under statutory powers. But in the present case the statutory power as regards the appointment of guardians for infants is given with express reference to “the order and course observed in that part of Great Britain called England:” see Cl. 32, Letters Patent of 1800. The test seems to be, would the fact that an infant was resident out of England in itself deprive the Courts in England of power, on the application of a father domiciled and resident in England to appoint a guardian of the person of the non-resident infant? The answer is surely “no.” As regards the English cases in Johnstone v. Beattie(9), a case which came before the House of Lords in 1843, it was held that the rights of a Scotoh “Tutor” could not be recognized by the Court in England with reference to a minor residing in England. It was also held that the Court in England had jurisdiction to appoint guardians for the infant although her domicile and all her property were situate 1 in Scotland. In Hope v. Hope(10), a case which came before Lord Cranworth in 1854, the Lord Chancellor laid it down that the Court of Chancery had jurisdiction over the custody of the children of an English subject, though such children were born and, at the time the jurisdiction was invoked, ware resident abroad. In this case, the children were born out of the jurisdiction, the mother was resident out of the jurisdiction and an interim order had been made by the French Court entrusting to her the custody of the children. In the casa before us, the children were born within the Presidency of Madras; the appellant has not contended that she does not reside within the Presidency, and no order has been made by the Court in England with which the order of Bakewell, J. could conflict.

13. The fact that the defendant must be deemed to be resident within the jurisdiction seems to me to be a matter of importance. In the Hone's case , the Lord Chancellor said, in his final judgment;, (p. 544): “if Mra. Hope had not been abroad, I should have made a short order directing compliance within a limited time, and in default that she should stand committed.” On the facts of the Hope's case, the Lord Chancellor does not seam to have entertained the least doubt as to his jurisdiction, though in framing his orders he took the greatest care to treat the French tribunal with all respect and to avoid the possibility of a conflict between the French and English Courts.

14. The final order which the Lord Chancellor made was that within a week the mother should deliver up the children to their father or otherwise concur with him in taking such steps as might be necessary for authorizing them to be delivered up to him according to the laws of France. Whether anything was done in pursuance of this order, we do not know. Assume nothing was done, this does not affect the question of jurisdiction. The Lord Chancellor was clearly of opinion that he ought to make the order and that the case was not one of the class of cases to which he referred in his first judgment (p. 542), when an order would do no good but would involve “a sort of scandal” on the Court by reason of an order being made which the Court could not enforce. Even in this class of cases, the Lord Chancellor apparently did not doubt the jurisdiction but only the desirability of exercising it.

15. In In re Willoughby(11) the Court, following Hope v. Hope, on the application of the infant's next friend, the father, a natural born British subject, being dead appointed a guardian of an infant born and resident in France, the mother, a Frenchwoman, being entitled by the law of France to the status of natural guardian of the infant. The Court of appeal, affirming Kay, J., were of opinion that the jurisdiction existed, and in the circumstances ought to be exorcised. Other English cases were cited to us, but I do not propose to discuss them as the two cases to which I have referred ire the only cases, so far as I know, which seam to me to be directly in point. Some Indian cases were cited in course of the argument. I only refer to those cases where the question of the jurisdiction conferred by the Letters Patent was considered. In In re the Estate of H.G Meakin(12) a mother residing in Poona was under the powers conferred by the Letters Patent, appointed guardian of a child who was resident in England at the time the order was made. The making of the order however was not opposed. In In the matter of Srish Chunder Singh(13), on an application under Cl. 17, Letters Patent, Sale J., refused to appoint a guardian of the person and property of an infant who was not a British subject and who was outside the limits of the ordinary civil jurisdiction of the Calcutta High Court there being testamentary guardians and no application having been made to remove them. The fact that the infant was not a European British subject does not seem material to the question of jurisdiction. The learned Judge would seem to have relied on the fact that there were testamentary guardians, and also on the fact that under the Guardians and Wards Act the application should have been made to the Court in whose jurisdiction the minor resided. So far as I know, there is no, decision, with the exception of the case which I have just referred, that a High Court has no jurisdiction under Cl. 17, Letters Patent, where the infant is outside the jurisdiction when the Court is asked to exercise its “power and authority.”

16. As regards the objection that the minors ware not represented, in my opinion neither O. 32, R. 5 of the CPC, nor the principle of law or equity on which the rule is based, applies to the present suit. The minors are not parties to the suit, and as from the very nature of the suit there must be the fullest and most careful consideration of their interests before any order is made, it is not necessary that they should be separately represented in order that their interests may be protected.

17. I am of opinion that in this case, Bakewell, J., had power to appoint the father the guardian of the minors, and that the power of the Court to appoint a guardian carries with it a power to make any order which may be necessary to enforce the authority of the guardian.

18. I express no opinion as to whether, apart from the power and authority given to the Court by the Letters Patent, this Court would have jurisdiction under the Code of Civil Procedure and the general law to make the decree which is now under appeal.

19. In my opinion the objections to the jurisdiction fail.

Oldfield, J.:— The facts necessary for disposal of the purely legal questions raised by the appellant-defendant are these: The plaintiff presented a plaint in the District Court of Chingleput praying for declarations: (1) that he was entitled to the guardianship and custody of his two minor sons (2) that the defendant, Mrs. Besant, was not entitled to and was unfit for the charge and guardianship of them and for a direction to her to hand them over to him or to such other person as might be appointed. After the defendant had filed her written statement, the case was transferred to the original side of the High Court under Cl. 13, Letters Patent. An amended plaint and written statement were afterwards filed, the relief prayed in the former being however identical with that already asked for the suit was tried and disposed of by the judgment under appeal. The minors were declared wards of Court, and it was decreed (1) that the plaintiff was declared their guardian, (2) that the defendant should hand over custody of them to the plaintiff in that capacity.

20. The first ground of appeal argued is that these proceedings were taken in the form of an ordinary suit, although the relief claimed could be asked for only by petition under a special Act, the Guardians and Wards Act (8 of 1890), if the terms thereof authorized its grant and the procedure therein prescribed were followed. The objection is substantial, because S. 9 of the Act requires that an application for the personal guardianship of a minor shall be made to the District Court, within the limits of whose jurisdiction he is ordinarily resident, and it is at least doubtful whether this requirement was complied with in the present case, when the minors had left the jurisdiction about nine months previously. Ss. 10 and 11, moreover, prescribe that certain information shall be given in the petition, which was not given in the present plaint, and that certain notices shall be served. It is not disputed that the relief now given by the learned Judge could have been claimed under the Act. It is argued that it could have been claimed only under it and that therefore the acceptance of the plaint by the Chingleput District Court and all subsequent proceedings were without jurisdiction. A defect in jurisdiction, such as that alleged, can be relied on at any time and could not have been cured by the defendant's waiver of her objection to it; and it is therefore unnecessary to refer to the course of her pleadings in this connexion. It has been suggested that in any case, the plaint can be treated as a petition and the proceedings as proceedings under the Act, the minors having in fact been ordinarily resident within the Chingleput jurisdiction. But if there were no legal objection to that course and the necessary finding as to residence could be reached there is still a possibility that the defendant would suffer prejudice in respect of the merits of her case, which debars this Court from such use of its discretion. It is therefore necessary to decide whether the existence of the special Act makes a suit unsustainable under the common law.

21. There is no doubt that the provisions of a simple and summary procedure under the Act has made suits rare, if it has not brought them into total disuse; and for that reason, whether or not the right of suit still exists, there are not likely to be many decisions regarding it. There is no Madras case for Thiruvengadamier v. Periasmoi Tevar(14) which was originally relied on, turned out on inspection of the record to relate to a petition under the Act. In the other Provinces, conflicting views have been taken, as appears, from the references given in Shamlal v. Bindo, the High Court of Allahabad and the Chief Court of the Punjab: Ghasita v. Wazira being against and the Calcutta and the Bombay High Court in favour of the survival, of a common law jurisdiction. The judgments in all these cases are however inconclusive. For the anomaly foreseen in Shamlal v. Bindo, as a consequence of the conflict between the decisions of two Courts could be avoided as easily in this as in other cases by the use of the Court's power to join necessary parties at the instance of the person who was a party to both proceedings. In the matter of the petition of Kashi Chunder Sen(15) was a proceeding under the Act, the question being whether its scope had been enlarged illegitimately; and the case is important only with reference to certain observations in the judgment of Broughton, J., on one aspect of the matter, to which I shall return. In another case, not referred to in Shamlal v. Bindo, In the mutter of Srish Chunder Singh, the question came before a single Judge on an application, primarily under the Letters Patent, but also under the Act. No order in fact was made, and there was no question of the existence of a concurrent right to sue. The Bombay case, Sharifa…(Original Defendant) v. Munekhan…(Original Plaintiff) .*, ended in a dismissal on the merits; perhaps on that account the judgments deal with the question of jurisdiction, one of them only by reference to an unreported case of the same High Court, the other by reference to the Calcutta cases.

22. In these circumstances, the defendant's contention must be dealt with on its merits. It is, firstly, that the provisions of the Act and their wording abolish existing remedies under the statute and common law expressly or by implication. The statute law in 1890 consisted in Madras Regulations 5 of 1804 (S. 20) and 10 of 1831 and the Acts 14 of 1858 and 9 of 1861. The three first gave more or less general authority to Courts to appoint guardians and the last empowered District Judges to do so by summary process, at the same time expressly saving the validity of appointments made in suits, without restriction as to the grade of the Courts making them. None treated of the rights or liabilities of the guardian or minor. It is clear and it was recognized in Krishna v. Reade, in which the sustainability of a suit in a District Munsif's Court, was upheld, that a comprehensive remedy was available at common law, and, in fact, it was only as regards two matters, the appointment of a guardian and the procedure by which he could obtain custody of his ward that the statutes afforded any guidance whatever. The explicit repeal of the statutes by Act 8 of 1890 therefore entailed very little. In the language of the Act, there is nothing which, in my opinion, favours either the defendant or the plaintiff. There is no reference to remedies, rights or duties under the common law or their abolition. There is, no doubt, no reference to guardians appointed under it, though one might perhaps have been expected in S. 26(1), which refers to guardians appointed or declared by the Court or appointed by will or other instrument. The plaintiff's suggestion that guardianships obtained by suit are included in this and other sections in those declared by the Court fails in view of the definition of “Court” in S. 4(5); and it is simpler to assume that the duties of guardians not appointed under the Act were left to be regulated by the Courts which appointed them. S. 52 refers to appointments or declarations made by any Court of Justice and may be a recognition of appointments not made under the Act or by the District or High Court. But it may be intended merely to cover those made by other Courts before the Act was passed. S. 7 provides a procedure for the appointment of a guardian, the use of which is restricted to District Courts. But its language in no way excludes the existence of an alternative or is inconsistent with its merely enabling character. There is, it must be held, nothing in the Act itself which supports or negatives the defendant's contention.

23. She relies also on the more general argument that Act 8 of 1890 abolished existing jurisdictions and remedies, inasmuch as it is a codifying enactment. That it is one must be conceded. It is stately intended to consolidate and amend the existing law, and that formula is as explicit as those, used in other enactments usually recognized as Codes. It repealed the existing statute law exhaustively. It reproduced it and the existing common law so comprehensively that the learned vakil for the plaintiff has been able to point to three topics only as omitted from its purview; and their importance is insignificant or the necessity for their inclusion doubtful. But, though Act 8 of 1890 constitutes a Code, the consequence alleged by the defendant does not follow. No doubt, “when a statute gives a new right and prescribes a special remedy, no other remedy can, in the absence of evidence of a contrary intention, be resorted to.” But this statement of the law is incomplete, unless it is remembered that “when a statute is confirmatory of a pre-existing right, the new remedy is presumed as cumulative or alternative, unless an intention to the contrary appears from some other part of the statute.” The rule is given in those terms in Ramayyar v. Vedachalla and Zamindar of Ettiyapuram v. Sankarappa and is, moreover, based on English authority. It is not material that in Ramchandra v. Secy, of State(16), only the first portion of it was referred to. For that (it would appear) was owing to the assumption (made rightly or wrongly) that new rights alone were then in question; and this is borne out by the character of the English cases cited, the rights in question in them having been created by statute. Then the rule, thus ascertained as a whole, is useless to the defendant. For, as was observed above, a common law jurisdiction existed, and the Act is only a re-affirmation of the powers exercisable and the duties enforceable under it. The one exception among its provisions to this statement is S. 58, which postpones the date of majority, in cases in which a guardian has been appointed. But its application is expressly extended to all such cases and is not limited to those in which there has been an appointment by a Court, as defined in S. 4(5) of the Act. Although therefore the Act is a Code, it cannot be held to bar remedies or to close jurisdictions open at its date; and, though they may have fallen into disuse in the mufassil in this Presidency, that cannot affect the plaintiff's right to use them, when it has not been abrogated in any legal way. This objection to the jurisdiction therefore fails.

24. The first of the defendant's more general objections to it is that no trial could be held, when the minors were not impleaded separately or represented by a guardian ad litem in accordance with O. 32, R. 5(2) of the CPC. This rule reproduces S. 444 of the Code, in force, when Krishna v. Reade and the Calcutta and Bombay cases above referred to were decided, and I observe that the minors concerned were not made parties in them, and that the minor is not among the persons to whom notice must go in proceedings under Act 8 of 1890. But the short answer to this objection is that, whatever its weight may be held to be, if it is urged by the minors as ground for discharging the order against them, it has not been shown how the defendant who did not take it before the learned Judge, can take it here.

25. In order to the statement of the defendant's last and most important objection to the jurisdiction, it is necessary to refer to the learned Judge's own statements regarding it. In the order of 22nd April 1913, he said: “With regard to the jurisdiction of this Court under Cl. 13, Letters Patent, the power thereby conferred seems to be analogous to that of the High Court of England to remove actions from inferior Courts by writ of certiorari and I think that this Court has the same power in the trial of a suit removed from the District Court as in a suit instituted here.” Now, if only Cl. 13 is in question, it is clear that the learned Judge's powers were under Cl. 20 only those of the District Court of Chingleput, from which the suit was transferred. But in para. 15 of his judgment he said: “With regard to jurisdiction, the plaintiff's children are subjects of the King-Emperor, domiciled in British India, and are only temporarily resident in England, where they were taken by the defendant for purposes of education. The defendant has also, in my opinion, broken the understanding by which she was allowed to take them beyond the jurisdiction. In these circumstances, I am clear that this Court has jurisdiction to pass orders as to the custody of the children, and is bound to enforce such orders by all means in its power.” It is not clear how far the defendant ever abandoned her intention of contesting the issues relating to jurisdiction; but the learned Judge has dealt with them shortly, because, as he said, he understood her to do so. Probably on this account he has not stated explicitly the nature of the jurisdiction he professed to be exercising, but has only referred to various foundations for it, the nationality and domicile of the minors and the defendant's conduct as constituting a cause of action. The defendant has argued that these foundations are useless, that no other is available and that the minors being resident outside British India, if a suit could be brought at all, neither the District Court of Chingleput nor the learned Judge was entitled to entertain it. She has maintained this directly and also with reference to the principle of effectiveness.

26. It is, in my opinion, unnecessary to consider at any length one answer to this argument, that the learned Judge could pass the decree under appeal in the exercise of the powers conferred by Cl. 17, Letters Patent, because his action can, I think, be justified without reference to it. I therefore do not deal with the very careful discussion of the history of the clause, which has taken place. I observe only that the powers conferred by Cl. 17 are those exercised by the defunct Supreme Court, that is, those which would be exercised by the Court of Chancery in England, and that, whilst those powers have been exercised in cases referred to before us and can be exercised without any special invocation by petition or otherwise, the foundation for that, exercise (so far as has been shown) has always been and presumably must be some proceeding pending before the Court in the legal use of its powers. This is material because, in the present case, the legality of the proceedings and of their institution in the Chingleput District Court is denied; and the transfer under Cl. 13, Letters Patent, to this Court cannot be treated as validating them. Ledgard v. Bull(17), Cl. 17 therefore can be relied on only to supplement powers which the learned Judge must be shown to have had already under Cls. 13 and 20, and with reference to the nature of the relief he could give, and only in case there was already a legally instituted proceeding before him, that is, in case the Chingleput District Court had jurisdiction.

27. To return to the foundations for his jurisdiction, to which the learned Judge referred, these are no doubt some expressions used in English cases to be cited later, which imply that nationality and domicile weighed with the Court of Chancery in the circumstances under consideration. But it is doubtful whether in them the jurisdiction was founded on the nationality or domicile of the minors alone; and I desire, if possible, to justify the learned Judge's action on grounds unconnected with the exercise of the special powers of that Court. The defendant denied that she had been guilty of the breach of any agreement within or outside the jurisdiction. But neither the agreement in question, that of 19th January 1912, not its is the whole or a major part of the subject matter of the suit; and therefore though the agreement could ordinarily be sued on in the Chingleput District where it was made, it is unnecessary to pursue this further. The questions are whether any other legal justification for the institution of the suit at Chingleput is available and whether the non-residence of the minors is material.

28. The law as to the suits of which in general Indian Courts are empowered to take cognizance, is stated primarily in Section 9 of the CPC. They have jurisdiction to try all suits of a civil nature, the meaning of the last two words being restricted in a manner, not at present material, by an explanation. This general statement is further qualified by reference: (1) to the provisions of the Code itself; (2) to any express or implied bar. The latter exception, no doubt, covers suits excluded expressly or impliedly from the jurisdiction by other enactments. The question is to what extent it also recognizes the exclusion of suits under the provisions of unwritten, including private, international law, if such excluding provisions exist. The alternative is with reference to the first qualification above referred to: that the only further test of jurisdiction is supplied by Ss. 15 to 20, which prescribe the Court entitled to try each class of suits with reference to territorial considerations. If these sections can be treated as establishing a general criterion applicable in cases of competition, not only between Courts in British India, but also between them and foreign Courts, the jurisdiction of the Chingleput District Court is clear, since the case is covered by S. 20(a) relating to the defendant's residence, not the locality of the cause of action. The suit is not one referred to in any of the earlier sections. The rules stated in the various portions of S. 20 are alternative. The defendant gave her residence in her written statement as alternately Adyar in the Chingleput District, Benares and England, and, as she was served at Adyar, it is not necessary to go through authorities to show that for the purposes of the section she must be held to have been resident there. These sections have been treated as affording the criterion above referred to as between Indian and foreign Courts in a number of decisions; and there are indications that they were intended to do so in the general absence of any restrictions on their operation and in the explanation to S. 16, which imposes a restriction, material in the present connexion, and, so far as it affects the proviso to the section, constituting a deliberate departure from the private international law, recognized by English Courts and stated in Penn v. Baltimore(18).

29. In Annamalai Chetty v. Murugesa Chetty(19), it was however observed by their Lordships of the Privy Council: “In both Courts in India, it was apparently assumed that the question of jurisdiction turned on Section 17 (now Section 20) of the CPC, and that although the defendant was a foreigner, and although the cause of action arose in a foreign country, and although” the defendant did not personally reside within the local limits of the jurisdiction of any Court in British India… yet he could be sued” in a British Indian Court; and it was said that this assumption required more attention than it had received. It is true that, in the same judgment, their Lordships expressly approved the decision of Girdhar Damodar v. Kassigar Hiragar(20). In it one learned Judge said that the Court was not concerned with questions of international law and had only to determine whether the defendant was a person against whom the legislature had permitted a suit to be filed in which a decree could be passed and executed against his person and property within the jurisdiction. The other, in the portion of his judgment at p. 666, to which reference is made in the foot-note to the Madras case quoted, Companhiade, Macambique v. British South Africa Co.(21), to the effect that the question whether the Courts of a nation will or will not entertain jurisdiction of any dispute is to be decided by the Municipal law of the nation itself, thus far concurring in his colleague's adoption that law as supplying the test required. But he continued the quotation (and it is to this and his connected observations that I understand the judgment of the Privy Council to refer): “if there is a proper inference to the same effect, (as that of express legislation), the result is the same. But there are certain rules which have, by universal consent, indicated the circumstances from which the inference may legitimately be drawn.” It was with such inference and the question whether the circumstances supported it that the Privy Council and the learned Judges of the Bombay High Court were concerned in the cases under discussion, since in both the phrase “carries on business” was under interpretation. But no such interference is under discussion or need be drawn in the present case, in which reference only to the defendant's residence and S. 20(a) is necessary, and the facts required for its application are not in doubt. Here therefore there is no reason for resort to the principles of Private International law.

30. Nor does the fact that the minors are not at present resident within the Chingleput jurisdiction afford such reason. It has been pointed out that the various portions of S. 20 are alternative, and there is therefore no reason for considering the place where the cause of action arose or the minors' whereabouts as determining it. I shall refer later to the validity of the learned Judge's decision against the minors themselves and the possible consequences of the plaintiff's failure to implead them. In the present connexion, it is sufficient that this is an action in personam, and that, to quote the rule as stated at p. 361, Dicey's Conflict of Laws, Edn. 2. “The Courts of a foreign country have jurisdiction, where, at the time of the commencement of the action, the defendant was resident (or present) in such country, so as to have the benefit and be under the protection of its laws.” I deal below with the argument from the doctrine of effectiveness. But for the present purpose the principle just referred to is sufficient; and there is nothing in the work cited or any other authority a deduced to derogate from its effect or to show that the absence from the jurisdiction of the object of the claim, be it minors or chattels, is sufficient in itself to deprive the Court of jurisdiction otherwise obtained.

31. Lastly, the doctrine of effectiveness, as enunciated at p. 40, Dicey's Conflict of Laws, Edn. 2, has been invoked. It is staged there as follows; “The Sovereign of a country, acting through the Courts thereof, has jurisdiction over any matter with regard to which he can give an effective judgment”; and the defendant would define effectiveness shortly as “the power of the Court to carry out its own decrees without resort to any other force than that of its Sovereign.” It is urged that the learned Judge has no power to carry out his decree without resort to the force of a Sovereign other than the Government of India, and that he therefore could not pass it. This however assumes, as I understand it that the doctrine must be applied, not only to cases in which the whole relief darned would be beyond the powers of the decreeing Court to enforce, but also to those in which only a part of it would be so. That assumption is not supported by authority. The distinction drawn between judgments wholly and partially enforceable by the decreeing Court is material, because the judgment before us would appear to be of the latter description.

32. So far as appears from the works cited, the majority of the cases in which the doctrine has been applied related to claims to immovable property. But it has been held that it did not prevent the Court from granting relief on claims to the specific performance of contracts or to equities connected with such property, in so far as such relief could be given in personam by action against the defendant within the jurisdiction. No doubt the defendant attemptei to distinguish such cases as Penn v. Baltimore on the ground that only the execution of a conveyance which the Court itself could execute on behalf of a recalcitrant defendant, was in question. But that is not the ground taken in the judgment; and such an explanation would be useless in other cases, such as those enumerated at p. 47, Lewin on Trusts, Edn. 9, in which the Court interfered to direct an account of rents and profits, to order foreclosure of a mortgage, to relieve against the fraudulent conveyance, of an estate and to prevent a defendant by injunction from taking possession. As appears from Penn v. Baltimore and other decisions, the Court's jurisdiction is not negatived, because the remedy within its power does not enable it to make a comprehensive disposal of the matter in dispute. It is sufficient that assistance cm be given to the plaintiff as regards one stage in the working out of his rights, in the case mentioned the obtaining of a conveyance; and the fact that as to the further stage, in that case, the plaintiff's maintenance in quiet enjoyment, nothing can be done, does not debar him from suing or the Court from granting the relief within its competence.

33. It was for relief of this kind, which might or might not turn out to be finally sufficient, that the plaintiff asked in the present suit. He prayed for a declaration and injunction in the terms already stated. No doubt he chose to do so without making the minors parties, and it may be a question how far he will be able, even in India, in casa they return there, to execute his decree against their persons and in England he, no doubt, will not be able to execute or sue on his decree in the ordinary sense. But a foreign guardian has, unless, interfered with by the Court, control over the person of his ward, while in England:” Diecy, p. 478, and the plaintiff may fairly have been willing to trust to his sons' recognition of his rights, as father and appointed guardian, after they have been freed from other influences in England, or in India in case of their return. It is however more important that the decree asked for might have been or may still be regarded as likely to be effective in two other ways, as the basis either of proceedings in execution here against the defendant personally under O. 21, R. 13, or of proceedings in England.

34. It is especially in connexion with the former that the defendant's attitude before the learned Judge becomes important. The minors were in England. But she was served and was within the Chingleput jurisdiction. Prima facie therefore she was available for the imprisonment and her property for the attachment by which under O. 21, R. 32, a decree, such as that of the learned Judge, granting an injunction, would be enforceable and until after the date of the decree there was nothing before the learned Judge to suggest that the injunction would be ineffective owing to the defendant's inability to comply with it. He was therefore entitled to assume that his decree would to this extent be effective and his jurisdiction good. He, no doubt, subjected the defendant to a mandatory injunction to hand over custody of the minors; and, if her ability to do so had been denied in her written statement, that injunction would perhaps have been framed in negative terms, forbidding her to interfere with their return or the plaintiff's efforts to regain them. But it was given in the terms asked for in the plaint, and the defendant did not demur to them. It is only in this Court that she has alleged that the minors, who are aged eighteen and fifteen, refuse to return and that, though she has ceased to supply them with funds and has deposited money for their passages to India, she cannot coerce them further. I assume her pood faith. But all this was first disclosed after, and was not hinted at before, the judgment under appeal. It is not, in my opinion, open to the defendant to contend in appeal that the learned Judge's powers were ineffective ab initio because of possibilities as to which she was silent until the exercise of those powers had been decreed.

35. Lastly, the judgment will be effective, in so far as it can be used as a basis for proceeding in any Court in England or elsewhere outside British India, within whose jurisdiction the minors may be. I have hitherto refrained from reference to English cases as to guardianship, because they were decided by the Court of Chancery and it was necessary to exclude the special characteristics of its jurisdiction from consideration. There can however be no objection to reliance on them in the present connexion, when the doctrine of effectiveness under discussion must be supported as of international validity, and reciprocity and equal status as between the Courts concerned must be assumed. This is in fact recognized expressly in the judgment of Cotton, L.J, in In re Willoughby and it will in any case be safe to refer to these decisions, if it is remembered that the English High Court's mode of dealing with foreign judgments is a better test of the doctrine maintained by it than are the rules by which it has defined the boundaries of its own authority. Though the reference to them is primarily intended to support she position that the decree creating a guardianship is effective in so far as it can be the basis of proceedings in foreign countries, it will be seen that some of the decisions are also in the plaintiff's favour as negativing the necessity for the residence of the minors within the jurisdiction.

36. In Johnstone v. Beattie it was, no doubt, held that “the rights and duties of a foreign tutor and curator cannot be recognized by the Courts of this country with reference to a child residing in this country. The result is that such foreign tutor and curator have no rights, as such, in this country.” and in Dawson v. Jay(22), the Court appointed an English guardian for an English minor in England refusing custody to a guardian appointed in America. But other cases are less uncompromising. In Nugent v. Vetzera(23), the Court, no doubt, maintained the guardians appointed in England. But it was careful to reserve to the foreign guardian the right to exclusive custody of his wards, to which he was entitled by the order of the Court of his own country; and the right to that custody was the immediate matter in dispute. It is material, with regard to the argument above referred to from the non-residence of the minors, that no question appears to have been raised in this case as to the jurisdiction of the foreign Court to appoint Vetzera as guardian, although it appears from the statement of facts that the minors were at the date of his appointment outside its jurisdiction for the purpose of education, like the minors in the case before us. So also in the next two cases, Hope v. Hope and In re Willoughby, the minors' and the opposing party (in whose custody they were) being in France; and though there had been a formal settlement of a property in the former case, the Lord Chancellor expressly declined to base his decision appointing a guardian on it.

37. To return from this digression as to non-residence to the bearing of these two cases on the doctrine of effectiveness, in neither of them was there any person within the jurisdiction against whom the Court could have expected to enforce its order; and they are therefore, strong authorities, since only the possibility of the English appointment being utilized in a foreign Court could have been in question. It must be conceded that in each of them, the foreign Court had stayed its hand in order that the decision of the English Court might be known, and that a conflict between the Courts of the two countries was improbable. But the right of the English Court to interfere was contested strenuously and considered fully. In these circumstances, it was said in Hope v. Hope that there was not a want of jurisdiction, but only a want of the power of enforcing it; and in In re Willoughby, to make a quotation which represents the tenor of both decisions fairly, “it may well be that the French Court may give effect (though I do not say they ought to give effect) to our order and make it operative by giving to the persons whom the Court here thinks ought to be appointed guardians power in France to deal with the infant…. or it may, if it thinks fit, appoint those persons guardians. It will be entirely a question for the French Courts. If, on the other hand, the French Court thinks that other persons ought to be appointed guardians, that is a matter with which we in no way interfere.” All this, mutatis mutandis, might be said in the present case; and it is sufficient to show that no ineffectiveness was to be apprehended in the decree to be passed, which could have deprived the learned Judge of jurisdiction. No doubt, the English or other Court, before which the plaintiff may attempt to use his decree, will have other and valuable foundations for any decision it may reach, the increased age of the minors and perhaps a viva voce expression of their preference, an advantage of which the learned Judge was deprived. But authority justifies the belief that the learned Judge's decision also will have weight with the English Court and, if not indispensable to the plaintiff, will be of material assistance to him. In that direction, as well as in those already indicated, it will therefore be effective. The objection to it based on its alleged ineffective character, accordingly, fails.

38. [This appeal coming on for final hearing on the merits on 25th 26th and 30th September and the 1st, 2nd, 3rd, 6th, 7th, 9th, 10th and 13th October 1913, respectively and the case having stood over for consideration till this day, the Court delivered the following:]

While, C.J:— I have already dealt with the question whether the learned Judge had jurisdiction to grant the relief which he has given in this suit. The question remains whether his judgment should be upheld. The more important dates are as follows:

The defendant is the President of the Theosophical Society and the plaintiff has been a member of the society since 1882. About the end of 1908, the plaintiff was appointed Assistant Corresponding Secretary of Esoteric Section of the society and he and his family took up their residence at the headquarters of the society, Adyar, in a house which he occupied rent free. In September 1909 he removed his two minor sons, Krishnamurti and Nityananda, from school, and they received gratuitous instruction at Adyar from one Mr. C.W Leadbeater and others. The boys were then aged about 14 and 11. The defendant first became acquainted with them in December 1909.

39. On 6th March 1910 the plaintiff signed a letter (Ex. A) by which he constituted the defendant the guardian of his minor sons. The plaintiff alleges in the particulars which he was ordered to deliver that in April 1910 he witnessed the incident which is described in para. 1 of the particulars. He also alleges that between December 1910 and February 1911 and on later dates he was told by certain parties that they had seen the incident mentioned in para. 2 of the particulars. In March 1911 the defendant took the boys to Benares and thence to England. In October 1911 they returned to Adyar and remained there until December 1911. Mr. Leadbeater, who had been at Adyar throughout, then took them to Benares. On 31st December 1911 the plaintiff informed Mrs. Van Hook at Benares of the incident described in para. 1 of the particulars. On the same day, the plaintiff went to the defendant and demanded that the boys should be separated from Mr. Leadbeater, and referred her to Mrs. Van Hook for the reason. The defendant refused the plaintiff's request. The plaintiff returned to Adyar at the beginning of January 1912 and made complaints to various persons. On 19th January 1912 there was an interview at Adyar between the plaintiff and the defendant and several members of the society. A note of the proceedings at the interview was taken down by the defendant. The note is to the effect that the plaintiff stated he had no objection to the boys' being taken to England and that the defendant said that she had separated the boys from Mr. Leadbeater. Mr. Leadbeater had left India about 13th January 1912. On 26th January 1912 the defendant left Adyar with the two boys for Benares and shortly afterwards took them to England. The boys were left with Mr. Leadbeater and others for a short time in Sicily, the defendant being in England. The boys then followed the defendant to England, Mr. Leadbeater accompanying them to Genoa. It having come to the knowledge of the defendant that the plaintiff had been making inquiries with respect to the charge against Mr. Leadbeater contained in para. 2 of the particulars, she wrote to him a letter on 7th February 1912, (Ex. LL), in which she dismissed him from it is office of Secretary. On 11th July 1912, the plaintiff wrote to the defendant a letter (Ex. AA6) in which he purported to cancel the letter Ex. A and asked her to hand over to him his two sons. In October 1912, the defendant returned to Adyar leaving the boys in England and the plaintiff instituted this suit.

40. I propose first to state what appears to me to be the law as to the rights of a father to the control and custody of his minor children. I do not think it has been suggested that the exposition of the law relating to this matter contained in the judgment of Vice-Chancellor Kindersley in In re Curtis(24), is not still the law of England. It is there laid down that the Court of Chancery cannot decide upon the custody of infants simply with reference to what is most for their benefit and cannot interfere with the rights of a father, unless he so conducts himself as to render it essential to the safety and welfare of the children in some serious and important respect, either physically, intellectually or morally, that they should be removed from his custody. The Vice-Chancellor in his judgment cited the case of In re Funn(25), in which Lord Justica Knight Bruce made the following observations: “Of the present case, I may say that, were I at liberty, as I am not, to act on the view which out of Court I should, as a private person, take of the course likely to be most beneficial for the infants, I should have, no doubt whatever upon the question of interfering with the father's power. Without any hesitation I should do so; to what extent and in what manner I do not say. But there may and must be many cases of conduct, many cases of family differences, family difficulties, and family misfortunes, in which, though interposition would be for the interest and advantage of minor children, Courts of justice have not the meins of interfering usefully, or, if they have the means, ought not to interfere.”

41. “A man may be in narrow circumstances; he may be negligent, injudicious and faulty as the father of minors; he may be a person from whom the discreet, the intelligent and the well-disposed, exercising a private judgment, would wish his children to be, for their sakes and his own, removed; he may do all this without rendering himself liable to judicial interference, and in the main it is for obvious reasons well that it should be so. Before this jurisdiction can be called into action between them, the Court must be satisfied, not only that it has the means of acting safely and efficiently, but also that the father has so conducted himself or has shown himself to be a person of such a description or is placed in such a position, as to render it not merely better for the children, but essential to their safety or to their welfare, in some very serious and important respect, that his rights should be treated as lost or suspended—should, be superseded or interfered with. If the word ‘essential’ is too strong an expression, it is not much too strong.” The defendant suggested that the law as laid down in In re Curtis was altered by the Guardianship of Infants Act of 1886 (49 and 50 Viet. C. 27). No doubt this enactment altered the law, but its provisions, as it seems to me, do not touch the general principles to which Kindersley, V.C, referred. The cases in which the Courts have refused to deliver over a child when it has arrived at years of discretion to its father on a writ of habeas corpus are not in conflict with the rule of law that a father is entitled by the law of England to the custody of his children till they attain the age of 21.

42. In dealing with these habeas corpus cases Cotton, L.J, in his judgment in In re Agar Ellis(26) says: “But, than there are cases where, undoubtedly, the Court declined to interfere on habeas corpus in order to hand the child over to the father or to interfere with it when it was of the age of discretion—the age of sixteen in the case of girls and the age of fourteen in the case of boys. For what reason is that? When an infant is so young as not to be able in the eyes of the law to exercise a discretion, then, unless that infant is in the proper custody, that is to say, the legal custody of the father or the guardian appointed, it is not in legal custody, and the very object of suing out a habeas corpus is to have it ascertained whether the person, who is sought to be brought up, is under duress or imprisonment; but nobody can be placed in the position of being under duress or imprisonment if he expresses a wish to remain where he is at the time the writ is issued, that is to say, provided the person is competent to express such a wish and if he does, it is the duty of the law to regard it.”

43. In In re Agar Ellis, the minor was a girl of over 16. In that case it was held that the Court will not interfere with the authority of the father as regards the control and education of his children until they attain the age of 21 except (1) where by his gross moral turpitude he forfeits his rights, or (2) where he has by his conduct abdicated his paternal authority, or (3) where he seeks to remove his children being wards of Court, out of the jurisdiction without the consent of the Court. The defendant pointed out that in the Agar Ellis' case, the children were in the custody of the father when proceedings were instituted by the mother. This no doubt is so. But for the moment I am only dealing with the principles of law which govern this question ani I do not think the fact the children were in the custody of the father would give him greater rights than if they were not. In regard to the question, the benefit of the infant, Brown, L.J, in the same case said at p. 337: “Then we must regard the benefit of the infant but then it must be remembered that if the words “benefit of the infant” are used in any but the accurate sensa it would be a fallacious test to apply to the way the Court exercises its jurisdiction over the infant by way of interference with the father. It is not the benefit to the infant as conceived by the Court, but it must be the benefit to the infant having regard to the natural law which points, out that the father knows far better as a rule what is good for his children than a Court of justice can.”

“Except in cases of immorality, or where he (the father) is clearly not exercising a discretion at all, but a wicked or cruel caprice, or where he is endeavoring to withdraw from the protection of the Court which is entrusted with such protection by law, the custody of the infant as a rule this Court does not and cannot interfere because it cannot do so successfully or I should rather say because it cannot do so with the certainty that its doing so would not be attended with far greater injury both to the infant itself and also to general social life.”

“As soon as it becomes obvious that the rights of the family are being abused to the detriment of the interests of the infant, then the father shows that he is no longer the natural guardian, that he has become an unnatural guardian that he has perverted the ties of nature for the purpose of injustice and cruelty. When that case arrives the Court will not stay its hand but until that case arrives it is not mere disagreement with the view taken by the father of his rights and the interests of his infant that can justify the Court in interfering.” Mr. Simpson in his book on the Law of Infants on p. 131, Edn. 3 suggests that the law as laid down in In re Agar Ellis “seems to be too narrow a statement of the law as at present administered” and the learned author refers to the judgment of Fitz Gibbon, L.J, in Re O'Hara(27). The strongest passage in the judgment of the Lord Justice, which could be relied upon as supporting the suggestion that the judgments in In re Agar Ellis are too narrow a statement of the law is the following: “It appears to me that misconduct or unmindfulness of parental duty or inability to provide for the welfare of the child must be shown before the natural right can be displaced. Where a parent is of blameless life and is able and willing to provide for the child's material and moral necessities in the rank and position to which the child by birth belongs, i.e, the rank and position of the parent the Court is in my opinion judicially bound to act on what is equally a law of nature and of society, and to hold in the words of Lord Esher, that “the beat place for a child is with its parent.” Of course, I do not speak of exceptional cases, where special disturbing elements exist which involve the risk of moral or material injury to the child such as the disturbance of religious convictions or of settled affections or the endurance of hardship or destitution with a parent, as contrasted, with solid advantages offered elsewhere. The Court acting as a wise parent is not bound to sacrifice the child's welfare to the fetish of parental authority by forcing it from a happy and comfortable home to share the fortunes of a ??? however innocent, who cannot keep a roof over its head, or provide it with the necessaries of life.” With all respect to the learned author, to my mind, there is nothing in this passage which indicates that the learned Lord Justice intended in any Way to dissent from the principle laid down in In re Agar Ellis. In Thomasset v. Thomasset(28) Lindley, L.J, said that “independently of writs of habeas corpus the Court of Chancery exercised the power of the Crown as parens patriae over infants, and in exercise of this jurisdiction the power of the Court has always been much more extensive than that possessed by Courts of Common law under a writ of habeas, corpus.” The Lord Justice then refers to a case of Tadd v. Lynes which is unreported (see p. 127. Simpson's Law of Infants), where a father obtained an order for the delivery to him of the custody of his son, a young man of 17, who had been persuaded by the defendant to leave his father and enter a monastery under the charge of the defendant. As is pointed in Thomasset v. Thomasset, what the wishes of the boy were does not appear.

44. In Reg v. Gyngall(29), Lord Esher, M.R, pointed out the distinction between the Common law jurisdiction under which the Common law Courts used to deal with these matters by habeas cropus (I take it the learned Judge did not mean this was the only way in which the Common law jurisdiction could be exercised), and the Chancery jurisdiction. “At Common law,” The Master of the Rolls said: “the parent had, against other persons generally, an absolute right to the custody of the child, unless he or she had forfeited it by certain acts of misconduct.” The Chancery jurisdiction was a paternal jurisdiction “in virtue of which the Chancery Court was put to act on behalf of the Crown as being the guardian of all infants.” I do not think the Master of the Rolls meant to suggest that in the exercise of this jurisdiction, the natural rights of the parent were not considered. All that was laid down was that a Court of Chancery could supersede the natural rights of a parent if the welfare of the infant demanded it. In Reg v. Gyngall the Master of the Rolls cited with approval the passage from the judgment of Knight Bruce, V.C, in In re Fynn to which I have referred. I may also refer to Re Me Grath, (30) a case in the Chancery Division decided a year before the Reg v. Gyngall.

45. As regards the Indian cases, this High Courts would seem to have acted in accordance with the principles of the decision of In re Agar Ellis, see Reade v. Krishna and Pollord v. Rouse(31). Certain Indian authorities were cited by the defendant. In In the matter of Saithri(32) the application was for an order in the nature of habeas corpus. On the facts of that case, the. Court was not satisfied that the application by the mother was bona fide, the mother being a servant earning 8 annas a month and having no home of her own; and was of opinion that the mother had precluded herself by her conduct for eight years from demanding that the child should be given up to her and further that to do so would be most deterimental to the welfare of the child. In Sarat Chandra Chaherbati v. Forman(33) the application for the custody of the minor was made not by his father but by his brother. The report says that the father had “gona to Benares to end his days there” (p. 219). I am unable to assume, from this, as the defendant invited us to assume, that the natural rights of the father had devolved upon the elder brother. In view of what I conceive to be the law, I feel considerable doubt as to whether I should be prepared to follow the decision of the Allahabad High Court in Bindo v. Sham Lal(34) and of this Court in Muthuveerappa Chetty v. Ponnuswami Chetty (Lingammah)(35). In Mokoond Lal Singh v. Nobodip Chander Singha(36) the Court decided on the facts of that case that the prima facie right of the father was displaced: see also In the Matter of Joshy Assam(37). In the case of Re Gulbai and Lilbai(38) where it was held that the interest, wall-being and happiness of the minors ought to be the paramount consideration of the Court, both the parents were dead. It was suggested by the defendant, though I do not think the contention was very seriously pressed, that the law of England was more favorable to the natural rights of the father than the Hindu law. I do not think this has been suggested in any of the Indian cases, and I am not prepared to accede to it. In Muthuveerappa Chetty v. Ponnuswami Chetty, the learned Judges, no doubt, say that the tests of Hindu law do not recognizes any absolute rights of guardian in anyone. But neither does the law of England.

46. So far I have dealt with the general question of the natural rights of the father. In this case however we have what purports to be an express delegation of the father's rights by Ex. A, the letter of 6th March 1910, and what purports to be an express revocation of that delegation by Ex. AA6, the letter of 11th July 1912. It does not seem to be material whether the letter Ex. A is to be regarded as a waiver, or an express delegation, of the plaintiff's paternal rights. If it is to be regarded as a waiver, it does not in itself operate so as to preclude the father from re-asserting his rights. If it is to be regarded as an express delegation, I think, the delegation is prima facie revocable, though there may be circumstances which would lead a Court to hold that the delegation ought not to be revoked. In In re Agar Ellis, Cotton, L.J, said on p. 333: “The father, although not unfitted to discharge the duties of a father, may have acted in such a way as to preclude himself in a particular instance from insisting on rights he would otherwise have; as where a father has allowed, in consequence of money being left to a child, the child to live with a relative and be brought up in a way not suited to its former station in life or to the means of the father. There the Court says you have allowed that to be done, and to alter, that would be such an injury to the child that you have precluded yourself from exercising your power as a father in that particular respect, and then the Court interferes to prevent the father from having the custody of the child, not because he is immoral or has forfeited all his rights, but because in that particular instance he has so acted, as to preclude himself from insisting on what otherwise would be his right. That was the case in Lyons v. Blankin(39) which has been cited.”

47. There can be no question in this case that the agreement of March 1910 has been acted on. In Reg v. Barnardo(40) Lord Esher said that, if the parent revoked the agreement before it had been acted on, it would not be binding. Lindley, L.J, however laid down the law on much more general terms. He said on p. 315: “Notwithstanding such an agreement, the parent would be the legal guardian of the child, and she is incapable of binding herself not to exercise her rights as such. She could therefore revoke the agreement at any moment as could any other guardian in a similar case.” Wallis, J., in Pollard v. Rouse, stated the law in much the same way. He said on p. 292: “This delegation of parental authority to the plaintiff is revocable at any time, and it is the duty of the parents and guardians to revoke it, if used to the detriment of the children.” This question is discussed by Mr. Simpson on p. 135 and by Sir E.J Trevelyan in his hook on the Law of India relating to minors on p. 70. The latter states the law thus: “A father may also lose his right to the guardianship of his children, and to the control of their education, where he has permitted another person to maintain and educate them, and it would be detrimental to the interests of the children to alter the manner of their maintenance or the course of their secular or religious education. The Court will not, when he has acquiesced for some time, permit him arbitrarily or capriciously to alter the mode of their maintenance and education or to take them from the custody in which he has allowed them to remain.” There are further observations on the subject on p. 132.

48. As the authorities were very elaborately discussed in the course of the argument of this appeal, I have thought it necessary to refer to them at some length. I am prepared, however, to accept and apply the succinct statement of the law which is to be found in Halsbury's Law of England, Vol. 17, p. 107: “After a surrender by him” (the father) “of the custody has actually taken place, he can recover the custody unless his doing so would be injurious to the interests of the child.”

49. The defendant contended with reference to my judgment on the question of jurisdiction, that inasmuch as the jurisdiction exercised by the learned Judge was the equity jurisdiction given by the Latters Patent, the Court would look solely to the welfare of the infants. I cannot accede to this I do not think that the Courts in equity have ever professed to look solely to what appears to them to be the welfare of the infant without regard to the natural rights of the father. The judgment of the Master of the Rolls in R. v. Gyngall speaks of the “suppression” of the natural rights. This seems to me to involve that the natural rights must be recognized and considered.

50. There is one other question of law to which I desire to refer before I pass to the facts. The effect of the appointment of the father, as guardian in this case, was to extend the period of minority of the elder boy to the age of 21. At the time the order was made the elder to was nearly 18, the ordinary age of majority under the Indian law. We were referred by the defendant to In the matter of the petition of Nazirun(41), where it was held that an application for the certificate of guardianship under Act 43 of 1858, which, if granted, would prolong the minority of the infant from 18 to 21 should not be granted, when the alleged minor is admittedly on the point of attaining the age of 18 unless under particular circumstances, as where very great weakness of mind was proved, or where it was shown that there was some absolute necessity for making such order. The words “absolute necessity” are of too general a character to enable us to derive much assistance from this decision. The fact that a minor is nearly 18 when an order is asked for, which will have the effect of extending his minority, is no doubt a matter to be taken into consideration by any Court which is called upon to determine whether in all the circumstances of the case such an order should be made. The defendant asked to be allowed to adduce in evidence certain affidavits made in England which she professed to rely on by way of answer to an application to commit her for contempt, which had been made to this Court. These affidavits are of course not evidence for the purposes of this appeal. The defendant did not ask for a commission to examine as witnesses the parties by whom the affidavits were made.

51. At the trial and on the hearing of this appeal, several questions were discussed which bore more or less directly on the question of the welfare of the boys. There is the question as to what has been called the “deification” of the elder boy. This is raised in issue 10: “Has the defendant stated that the elder boy is or is going to be Lord Christ or Lord Maitreya?” The finding of the learned Judge was in the affirmative. There can be no question, I think, that in the first instance the two boys were taken charge of by Mr. Leadbeater and afterwards by the defendant for educational purposes with a view to their being sent to an English University. I do not doubt that the plaintiff, who had been a member of the Theosophical Society since 1882, and for some years had been a Secretary of the Esoteric Section of the Society, contemplated that the education should be in accordance with the views and tenets of Theosophy. The idea that the boy was to become vested with extramundane attributes was, I think a later development. With regard to this, Sir Subramania Aiyar, with reference to the plaintiff's consenting to the boy's being taken to England said in his evidence (p. 344). —the pages in the printed books are numbered consecutively: “The great inducement, as I gathered, was that the boys were going to get an English University education which was beyond his (plaintiff's) power to give.” In cross-examination, he said (p. 346): “Plaintiff was induced to sign the letter only for the sake of English University education. The English University education was the one thing which influenced him.” I do not think that the defendant questioned the finding of the Judge that although the plaintiff was aware, when he signed the letter of 6th March 1910, (Ex. A), that the defendant desired to bring up the boys in such a manner as to develop their spiritual powers, neither the plaintiff nor the defendant contemplated the development of the elder boy into “a vehicle” for the manifestation of supernatural powers or persons. The defendant denied in her evidence that she had ever said that the elder boy was, or was to be, the Lord Christ or the Lord Maitreya; but she admitted having said that she believed that “his body would be the vehicle for his reincarnation.” In cross-examination, in answer to the question: “Do you believe his body will be used by the Lord Maitreya?” she said “I do. I admit … that I do believe that the body will be used by Lord Maitreya some years hence.” In an adress by the defendant published in one of the Theosophical Journals (Ex. P), we find a statement that “the body of the disciple alcyone (i.e, the elder boy) has been handed over to those who have come down with him through the ages, to be trained and made ready for a similar destiny,” the destiny being the surrender of the body to Christ (p. 159). The defendant met the argument that the fostering of such ideas as these in a boy of 15 or 16 years of age would necessarily be prejudicial to his moral and intellectual welfare, by the contention that the setting before him of this ideal would necessarily have a purifying and ennobling effect. There might be something in this if what was set before him was that this destiny might be in store for him if he proved worthy of it.

52. But I understand the defendant's evidence to be that the body of the boy had already been selected for the purpose of becoming the “vehicle.” In para. 12 of her written statement, the defendant says it is true that respectable people have prostrated themselves before him. He was made the head of an order called the Star of the East (the proceedings at one of the meetings of the order are described in an article in a Theosophic Journal, Ex. C, published in February 1912) and he underwent two ceremonies of initiation as to the nature of which there is no evidence. It may be said that all this, so far from stimulating the moral and intellectual qualities of the boy, might have an opposite effect. I do not profess to know how much there is in common between the tenets and beliefs of the Hindu religion and the tenets and beliefs of Theosophy. I am prepared to assume that there is a very great deal. I am also prepared to assume that the plaintiff is a pious Hindu and that he was, when he signed Ex. A, an ardent theosophist. But there is all the difference between a man holding abstract views in a matter of this sort and being a consenting party to these views being given effect to in the person of his own son. A father may believe in the doctrine of reincarnation and may have given expression to that belief, but he may well be reluctant that the body of his own son should be the medium.

53. I do not think that the plaintiff, when he signed Ex. A, contemplated that the boys were to be devoted to lives of poverty and celibacy. I do not suggest that the importance of an education at Oxford, which I doubt not was the chief inducement of the father when he consented to the boys being taken to England, was ever lost sight of by the defendant, but it was, I think, regarded by the defendant and by Mr. Leadbeater as subordinate to the main purpose to which the life of the elder boy was to be devoted. We find the defendant writing to a correspondent (Ex. QQ) on 4th June 1912: “Both Mr. Leadbeater and I are quite indifferent as to Krishna (the elder boy) taking a degree. A degree is of no value to a spiritual teacher and Nitya's the younger boy's degree would bring no credit to us but only to his family.”

54. I now pass to a topic which I desire to discuss as briefly as possible, and that is, the connexion of Mr. Leadbeater with the two boys. There can be no question that the defendant and Mr. Leadbeater were closely associated in theosophical work and were in strong sympathy with each other. In this connexion, I need only refer to Exs. F and G. Ex. F is an extract from an article written by Mr. Leadbeater in the Adyar Album, a work which was on sale to the public in 1911, in which he says, speaking of the defendant (p. 155): “Whether you understand or not, you will be wise to follow her implicitly, just, because she knows. This is no mere supposition on my part, no flight of the imagination; I have stood beside your President in the presence of the Supreme Director of Evolution on this globe, and I know whereof I speak. Let the wise hear my words and act accordingly.” In Ex. G, the defendant, writing in the following year of Mr. Leadbeater in a Theosophist Journal, says, amongst other things “By hard patient work, he has won rewards perfecting each faculty on plane after plane, gaining nothing without hard work, as he has often said, but gaining surely and steadily, until he stands, perhaps the most trusted of his Master's disciples, ‘on the threshold of Divinity.’”

55. The finding of the learned Judge in para. 4 of his judgment seems to me to be supported by the evidence. The finding is: “It is clear that the plaintiff's children were first selected as likely subjects for training in the tenets of the Society by Mr. Leadbeater, who professes to have peculiar powers in this respect, and that it was through his influence that the defendant was induced to take an interest in them, and that from the first Mr. Leadbeater desired to get the children under his own control and out of that of the plaintiff whom he regarded as an obstacle to his own purposes:” see Mr. Leadbeater's letters Exs. W2, W3, W4, dated December 1909 and Ex. Y1, dated 3rd January 1910.” To the letters referred to by the learned Judge, I may add Ex. Y5 dated 18th April 1910. I think I may fairly say that the defendant's regard for and trust in Mr. Leadbeater was unqualified except with regard to certain opinions which Mr. Leadbeater held in regard to boys. As regards these opinions, the defendant condemned them as mischievous, and I do not doubt that the defendant implicitly believed Mr. Leadbeater's promise that he would not preach or practice what have been described as his “unconventional” doctrines. Mr. Leadbeater's “unconventional” views are to be found in Ex. 16, a letter written by him to a correspondent on 27th February 1906, in Ex. H, a letter written by him to the defendant on 30th June 1906, and in Ex. J. a letter written by him to the defendant on 11th September 1906. The defendant's attitude in the matter is indicated in her circular letter (Ex. 14) and in her letter to Mr. Leadbeater of 6th August 1907 [(Ex. 10(1),] to which he replied by his letter dated 30th August 1907 (Ex. 13). In cross-examination with regard to this matter, certain answers were given by Mr. Leadbeater which are to be found at p. 377, lines 12 to 29. With regard to this part of the case, the learned Judge observed in para. 14 of his judgment: “Mr. Leadbeater admitted in his evidence that he has held and even now holds, opinions which I need only describe as certainly immoral and such as to unfit him to be the tutor of boys, and taken in conjunction with his professed power to detect the approach of impure thoughts, render him a highly dangerous associate for children. It is true that both he and the defendant declared that he has promised not to express or practise those opinions but no father should be obliged to depend upon a promise of this kind.” I entirely agree.

56. It was contended by the defendant that in this “matter the plaintiff acted with his eyes open” and was aware of the opinions entertained by Mr. Leadbeater when he consented to the arrangement which brought his sons into close relations with him. The plaintiff had been a member of the Theosophical Society since 1882. In 1906 there was I an inquiry with reference to certain complaints which were made against Mr. Leadbeater, before an advisory committee. A report was made and Mr. Leadbeater resigned his membership of the Society. There was a subsequent investigation as the result of which Mr. Leadbeater was exonerated, and he subsequently rejoined the Society. The plaintiff in examination-in-chief, in speaking of a circular recommending the re-admission of Mr. Leadbeater into the Society (which I take is Ex. 14), said that he voted for his admission because the defendant said that he was innocent and that he believed it at the time because he had faith in the defendant (p. 223). He denied (p. 247) having received the letter or ever having seen it and said that he did not know that Mr. Leadbeater had been acquitted by any committee and that the General Council had said that he might rejoin if he wished (p. 248). He also said that he did not remember what the defendant stated in her Presidential address at the Convention in 1908 and that he knew nothing about the scandals in 1906. In 1906, the plaintiff was not associated with the Esoteric Section of the Society, and although I think it is extremely probable that he knew a great deal more about the charges against Mr. Leadbeater and the consequent proceedings than he was prepared to admit in the witness box, his story that he voted for his (Laadbeater's) readmission because he (the plaintiff) had entire confidence in the defendant does not seam to be an unreasonable one. In connexion with this question, one of the defendant's witnesses, who was examined on commission in Bombay and who says that he joined the Theosophical Society nine or ten years ago, said that he knew that Mr. Leadbeater had resigned the Society, that at the Convention held at Madras a resolution was passed asking him to rejoin the Society, that he did not know anything of any inquiry into the charges against Mr. Laadbeater, that he had not seen any records in connexion with that inquiry and that he knew about his resignation only at the time when the resolution for his re-instatement was passed.

57. Assuming that in March 1910, the plaintiff was willing “with his eyes open” that the boys should be closely associated with Mr. Leadbeater, and signed the letter (Ex. A) knowing that they would be closely associated with him, I am not prepared to say that it was not within his rights as a part to take up a different attitude later, even if nothing had subsequently taken place which might afford ground for suspicion that the complaints made in 1906 were not without foundation.

58. I now pass to the specific charges of immorality brought by the plaintiff against Mr. Leadbeater. They are referred to in para. 5 of the plaint and are described in the particulars delivered in pursuance of the order of the learned Judge. As regards the second charge, I doubt whether the statements of witnesses who speak to what Laxman told them are evidence. It seems to me that this charge really depends upon the evidence of Laxman who was called as a Court witness. His evidence is to be found at p. 278 of the printed papers, (a previous statement in writing as to what he said he saw is to be found in Ex. 7) and it is quite clear that his evidence is insufficient to support a charge of an unnatural offence or any act of gross indecency on the part of Mr. Leadbeater. With regard to the first charge, the plaintiff's evidence, if true, would establish that Mr. Leadbeater had been guilty of grossly indecent conduct in connexion with the elder boy. The evidence given by the plaintiff in the examination-in-chief at the trial with regard to this is in accordance with the evidence of Mrs. Van Hook, who was called by the defendant. It is also in accordance with the evidence of Mr. Bhagavan Das, who was examined on commission as to what the plaintiff told him. The defendant denied that, when she returned to Adyar in April 1910, the plaintiff told her anything about what he had seen himself. Much was said on the hearing of the appeal with regard to the alteration in the dates with reference to the charges. The evidence of the witnesses who spoke to the report made to them by Laxman would fix the date of the incident which is made the foundation of the charge of unnatural offence as prior to the date when Ex. A was signed by the plaintiff. The plaintiff's case is that, although the evidence of these witnesses as to the character of Laxman's report to them is true, their evidence is untrue with regard to the date when Laxman said he witnessed the occurrence, and that the date when Laxman said he witnessed the occurrence was subsequent to the signing of the agreement.

59. I need not discuss this question, because, assuming the statements of these witnesses with reference to what Laxman told them are evidence at all which I doubt, the evidence is in my opinion altogether insufficient to establish the offence charged in para. 2 of the particulars. Although Mr. Leadbeater was not and could not well be represented before us, the defendant took upon her shoulders the burden of his detnce with regard to these charges. She discharged the task of defending him with extreme zeal and with great ability. She sought to show that in view of the charges in the alleged dates and of the variation in the character of the alleged offence, no Court of law would hold Mr. Leadbeater guilty either of an unnatural offence, or of grossly indecent conduct in connexion with the elder boy. One thing she did do. She did not place before the Court the evidence of the boy himself. But, speaking for myself, having regard to her strong affection for the boy, which I do not doubt, and to the nature of the charges, I do not think she can be blamed for not putting the boy into the witness-box. Of course, I do not overlook the fact that the defendant no doubt realized that by bringing the boy to Madras, she would have sacrificed the advantageous position which she holds so long as the boys remain in England. I will say nothing more with regard to this part of the case because I am not prepared to differ from the conclusion of the learned Judge that for the reasons stated in paras. 5 to 12 of his judgment, issues 6 and 7 should be answered in the negative. I am not however altogether in agreement with the view expressed by the learned Judge that it was the plaintiff's knowledge that his surrender of the rights of guardianship contained in Ex. A was irrevocable which induced him to search for something which would influence the Court in revoking the agreement and so caused the revival of charges similar to those made against Mr. Leadbeater in 1906.

60. This brings me to the question as to how far the fact of these charges that were made by the plaintiff can be reconciled with good faith on his part and a single-minded desire, whether mistaken or not, to do what was best for the welfare of his boys. The question as to how far the plaintiff acted in good faith is, of course, of the greatest importance with reference to the question of the boys' welfare, because it is obvious that their interests would be greatly prejudiced if they were handed over to the guardianship and custody of a man prepared to make charges of this character in connexion with his boys knowing them to be false. It was pointed out that as regards the second charge the evidence, even if true, would only establish indecent bahaviour, and this was relief on as showing that the charges were made wantonly and maliciously and with the knowledge that they were false. It has been suggested that the plaintiff is a tool in the hands of those who desire to injure the defendant. I may refer to the evidence of the plaintiff on pp. 239 and 273. I will assume that the plaintiff is, to some extent at any rate, being made use of by others who supply the sinews of war and who here their own ends to serve. This, in itself, is not in compatible with the plaintiff being actuated by an honest desire to do what he now conceives to be, although his views might formerly have been otherwise, for the best interests of his boys. Very great stress has been laid by the defendant upon the fact that the plaintiffs made a criminal charge of a very revolting character in which his own son was involved. I am not impressed by this. If the father honestly believed that something had happened which would justify the second charge, he was placed in a terrible predicament. If he sought to bring the man to justice, he exposed himself to the accusation that he was bringing a charge against the child. If for the sake of saving the child he did nothing, he exposed himself to the accusation of allowing a terrible crime to remain unpunished. Prom the very nature of the offence, he could not do anything without implicating the boy. The plaintiff in cross-examination said (p. 245): “My accusation was against Leadbeater associating with the boys and not against the boy himself. I never said anything against my boy. My complaint was against Leadbeater.” It appears to me that there are undisputed facts which might not unreasonably have given rise to serious suspicions against Mr. Leadbeater. I do not say that his conduct was criminal; I do not say that acts of gross indecency have been proved; but I do say that, in my judgment, his behavior in connexion with these boys was unseemly and in decorous. In this matter I will take the evidence of Laxman, the defendant's own servant who is still in her service, and the evidence of the defendant's witnesses. According to Laxman, he saw the elder boy and Mr. Leadbeater in the bath-room; the boy was naked and Mr. Leadbeater's coat was up to the waist and he had no pajamas (witness apparently indicated the length of the shirt halfway down the thigh). In examination-in-chief, Mr. Leadbeater said (p. 367):

“Q.—Through that time, 1909, I want you just to remember the succession of, events about the bath-room. Where did the boys first bathe when you knew them?

A.—At a well in Vesantamantapam within the headquarters.

Q.—What did that lead you to do?

A.—It eventually lead me to offer the use of my bath-room in place of it.

Q.—So that they bathed in your bathroom for a time?

A.—Yes.

Q.—Now, will you say please quite frankly what changes were introduced in their bath?

A.—I introduced carbolic soap and not water for the hair, and taught them to bathe in the ordinary English way so as to be really clean.

Q.—And that means as regards the bather?

A.—That he soaped himself all over.

Q.—Dressed or not?

A.—Quite undressed, certainly.

Q.—Were you fully dressed?

A.—I had nothing to do with it except on two occasions when I went in and superintended.” Mrs. Van Hook said in cross-examination (p. 329): “I know that Mr. Leadbeater took the boys into his bathroom and said that he should teach them how to bathe like gentlemen.” It seams to me that it did not come within the province of Mr. Leadbeater, a gentleman of over 60 years of age, as the tutor and spritual adviser of those boys, to superintend privately and personally their bathing arrangements.

61. The character of the suspicions—to put it no higher—which the plaintiff entertained against Mr. Leadbeater was such that it may well be that the plaintiff's mind was disturbed and thrown off its balance, and that he lost the power to see things and judge things in their true proportions, and to exercise a sound judgment with reference to any conclusion which he might come to. As I have said, I think the plaintiff knew a great deal more about the nature of the charges brought against Mr. Leadbeater in 1906 than he was prepared to admit. This, in fact, is the defendant's case. With his knowledge of Mr. Leadbeater's history in this connexion, it is scarcely extraordinary that a man, whose mind had possibly become a little morbid by reason of the atmosphere of mystery and mysticism and alleged extraordinary happenings in which he lived should have dwelt on something which he saw, objectionable and indecent though not criminal, until he became obsessed with the idea that Mr. Leadbeater's conduct in connexion with these boys had been such as to warrant the charge of an unnatural offence. “Unnatural offence” for the purpose of the Penal Code is a technical term. In its non-technical sense, it only means something contrary to nature.

62. One thing is clear, that, although the plaintiff's feelings towards Mr. Leadbeater in 1910 were those of bitter hostility, he entertained for the defendant feelings of affection and esteem which remained unchanged till July 1912. On 23rd January 1912 we have a letter from him to the defendant, Exhibit AA2 in which he says (p. 117): “However unkind you may make your external attitude towards me appear to be I feel quite certain that you have inside the same love and tenderness you have been showing me during the last three years. I shall cling to you as a son to a mother. Once a mother you are a mother for ever.” There can be no question that the plaintiff demanded the separation of the boys from Mr. Leadbeater at the end of 1911. The defendant refers to his having rushed up to her room when they were at Benares, crying and sobbing, and saying that the boys must be completely separated from Leadbeater. When the defendant asked “Why”, the plaintiff said he could not tell her, that he had told Mrs. Van Hook. This, no doubt, took place about 1 year and 8 months after the date when the incident referred to in para. 1 of the particulars according to plaintiff took place. Having regard to the nature of the alleged incident, the fact that the defendant was a lady, and the fact that she entertained feelings of respect and affection for Mr. Leadbeater and had placed implicit confidence in him the delay on the part of the plaintiff in making any communication in the matter to the defendant does not seem very extraordinary. His story that he preferred to tell Mrs. Van Hook, who is a doctor, does not seem to me unnatural. The plaintiff seems to be a man of do particular strength of character, emotional, possibly somewhat hysterical, and swayed one way or the other by the impulse of the moment. His temperament would seem to be reticent and retiring. The difficulty which, according to the evidence, Mrs. Taylor experienced in obtaining the data for the biographical notes which she desired to publish about the elder boy shows the plaintiff was a man who did not desire to court publicity or notoriety. The final rupture with the defendant meant the sacrifice of a friendship which he evidently greatly valued; the abandonment of all advantages which he would naturally hope for from his boys going to an English University, and possibly another scandal similar to that which appears to have shaken the Society to its foundations in 1906. In these circumstances can it be wondered at that a man would hesitate before taking a final and irrevocable step?

63. A point was made that, even if the plaintiff could not bring himself to make communication to the defendant, he might have given information to Sir Subramania Iyer, the Vice-President of the Society. To my mind, the plaintiff's explanation seems natural. Speaking of Sir Subramania Iyer, he said in answer to the question: Did you not know he would not tolerate such an offence?” he said: He was no friend of mine nor a man much known to me. I knew he had a great friendship of Mr. Leadbeater and thought him a big man,” He went on to say: I was not so much acquainted with him as to know that he would help me. I told him I had a grievance against Mr. Leadbeater.”

64. The letter written by Mr. Leadbeater to the defendant on 18th April 1910, (Ex. Y5), a few days after the date when, according to the plaintiff's evidence, the episode described in para, (1) of the particulars occurred, shows the existence of feelings of strong hostility as between the plaintiff and Mr. Lead-beater. We find Mr. Leadbeater writing: “It is good that old Narayaniah has to work hard at Besant Gardens, for on the whole it keeps him out of some of his mischief, and gives him less time to brood over imaginary wrongs.” I do not find the explanation given by Mr. Leadbeater in his evidence that some quarrel about the boys' food was the immediate cause of these feelings of hostility at all convincing. It is not disputed that just at this time the plaintiff was extremely anxious to get the boys away. In all the circumstances of this very unusual case, I am not prepared to hold that the plaintiff's conduct in connexion with the charges against Mr. Leadbeater was of such a character as in itself to show that he is unfitted to be entrusted with the care and custody of the boys or that it would be detrimental to their interests if they should be restored to him.

65. I will deal quite shortly with the question whether, in January 1912, the defendant gave an undertaking shortly before the boys were taken to England that they should be kept apart from Mr. Leadbeater. There can be no doubt that when the plaintiff demanded that the boys should be separated from Mr. Leadbeater at the end of 1911, when the plaintiff told the defendant that he had made a communication to Mrs. Van Hook, that the defendant refused the plaintiff's request. As to what happened on 19th January 1912, shortly before the boys were taken to England, when the memorandum (Ex. 11) was made by the defendant, in connexion with the separation of the boys from Mr. Leadbeater, the evidence is conflicting. The learned Judge was unable to hold that on that occasion the defendant declined to give the promise that the boys should never be brought into association with Mr. Leadbeater. I am not prepared to say that the Judge was wrong. Assuming that he was, it is clear that the plaintiff attached great importance to this question of separation from Mr. Leadbeater. The memorandum says: “Mrs. Besant said that she had met Mr. Narayaniah's wishes on both points (what the two points were is not clear), he had asked for: she had separated the boys from Mr. Leadbeater.” It is also clear that, although at that time the defendant contemplated that the boys would be with Mr. Leadbeater, at any rate for a short period, she did not so inform the plaintiff. She stated that her reason for not doing so was that she did not desire the plaintiff to know where the boys were to be. For the purpose of withholding information from the father as to the whereabouts of the boys, it was not necessary for her to refrain from mentioning the fact which would, no doubt, have greatly influenced the father in connexion with the question of the boys going to England. As a matter of fact Mr. Leadbeater, as well as the defendant, was with the boys in Sicily early in 1912 for the purpose of some initiation ceremony in connexion with the elder boy. The question whether as things now stand, the relative advantages for the boys are on the side of their remaining where they are and continuing the course of training which has been laid out for them by the defendant, or on the side of their being restored to the care and custody of their father, is one of great delicacy and difficulty. As regards financial considerations—and in reference to this matter, I accept the statements made by the defendant on the one hand, and the learned vakil for the plaintiff on the other—adequate provision would seem to have been made for the maintenance and further education of the boys either in India or in England. I do not believe that there is anything in the personal character of the plaintiff which disqualifies him from having the care and custody of the boys.

66. The defendant stated that there was some misunderstanding between the Judge and herself with regard to her case as to the personal unfitness of the father and his treatment of the boys when they were in his custody. She said she did not intend by any admission she made to give up her case with regard to the personal unfitness of the plaintiff or with regard to his treatment of the boys. The only conclusion I can draw from the form of the issues and the fact that the defendant did not cross-examine the plaintiff with regard to these matters, is that at the bearing it was not part of her case that, on general grounds, the plaintiff was personally unfit to be entrusted with the care and custody of the boys. An application was put in by the defendant for leave to adduce evidence on this question, but this application was not pressed.

67. The plaintiff appears to be a respectable Hindu gentleman and he is a retired Government servant. He was deemed by the defendant to be fitted to fill the office of Assistant Corresponding Secretary of the Esoteric Section of the Theosophical Society. At one time, he was in entire sympathy, with the tenets and beliefs of the Society of which the defendant is the President. There is no evidence that he is not so still. I do not doubt that the physical training which the boys are now receiving in England is all that could be desired. I do not doubt that they have the best of tutors for the purpose of matriculating at Oxford. The defendant has stated that her intention is that the elder boy should, with certain restrictions, take part in the ordinary life of the ordinary undergraduate. If he is not to do this, if he is to lead a cloistered existence segregated from his fellows, there does not seem much object in sending him to Oxford.

68. Whether his life at Oxford would be a useful or a happy one I cannot undertake to say. As regards the younger boy, it is considered desirable that he should take his degree for the purpose of competing for the Indian Civil Service. It may be that a life of celibacy, which I understand to be an incident of the “initiation” that the younger boy has undergone, may not be incompatible with a successful career in the Indian Civil Service. How far a life of poverty, another incident of the “initiation”, even using the word in the sense of “inner renunciation” in which the defendant has told us they are to be understood, how far this would aid or hinder a member of the Indian Civil Service, I do not feel in a position to express an opinion. In considering this question, it is, of course, necessary to have regard to things as they stand now, not as they stood when the father purported to surrender the guardianship of his boys. One of the many difficulties which arises in this case lies in the fact that, whereas the elder boy is now over 18 years of age, the younger boy is under sixteen. I do not think that in any order which we might make we ought to distinguish between the cases of the two boys. It seems to me that, whatever is done, they ought to be allowed to remain together. With great eloquence and with great earnestness, the defendant pressed upon us what she described as the miserable future which awaits the boys if they are to be restored to the custody of their father. There can be no question that the training which they are now undergoing in England would make it difficult for them to re-adapt themselves to what was at one time at any rate their natural environment.

69. Amongst other matters dwelt upon by the defendant it was suggested that ceremonies of a degrading character would have to be undergone before the boys were to be restored to caste. I fully realize all this, although I think the defendant has overstated the difficulties which will arise, if the boys are restored to the custody of their father. As regards the question of the obtaining of a degree by the younger boy, I should be the last to attempt to belittle the advantages of an Oxford degree, but there are Universities in India where academic distinction can be won, and the Indian Civil Service is not the only career in which an Indian gentleman of character and ability may rise high in the service of the State. I do not overlook the fact that the defendant does not now insist upon her right to remain as guardian of the boys. She is willing that their care and custody should Ire entrusted to Mr. G.S Arundale, a graduate of Cambridge and a former Principal of the Central Hindu College, who is in close sympathy with the defendant and her theosophical work. We have been asked, in the event of our not setting aside the order of the learned Judge with regard to the guardianship of the boys, that for the order directing that the boys should be handed over to the plaintiff should be substituted an order that the defendant should be restrained from doing anything otherwise than in accordance with law to prevent the plaintiff from enforcing his rights as guardian. On the case as a whole, after long and anxious consideration I have come to the conclusion that we ought not to disturb the order of the learned Judge appointing the father the guardian of the two boys, and that we ought not to interfere with the direction given for the handing over of the boys for the purpose of making the order effective.

70. The appeal is dismissed with costs. The defendant will pay the costs of the memorandum of objections. The parties will pay their own costs before Bake well, J.

71. The time within which the direction is to be carried out is extended to six weeks from this date.

Oldfield, J.:— I concur fully in the conclusions of the learned Chief Justice as to the law and the other matters dealt with in his judgment, and I desire to supplement the latter with reference only to certain portions of the case.

72. Firstly, with regard to what has been called the deification of the elder minor, the defendant's account of what has happened and probably may happen is, in my opinion, insufficient. The question is not merely of his immediate adoption of a high ideal, which he is to pursue (with whatever result) in the future; but firstly of his being surrounded by a body of admirers, some of whom have already, as the original written statement says, begun to prostrate themselves before him, and, secondly, of his being subjected at an early and impressionable age to influences, which will lead him, almost inevitably, to an exceptional view of life and an abnormal career and disable him from forming preferences of his own. The English authorities against the father's right to insist on a change of religion or of religious environment, Stourton v. Stourton(42) and In re Newton(43) have no application to the case before us, because they deal only with the minor's ordinary retention of ordinary tenets, not with his assumption of an extraordinary character, to which the votaries of theosophy or any other religion do not ordinarily or deliberately aspire.

73. Next, with reference to the age of the elder minor, and the argument that it was too late for the learned Judge to intervene by requiring his return, the authority cited by the learned Chief Justice and obvious considerations of convenience, no doubt, show that strong reason is necessary to justify a change, when the normal age of majority is near. But this case was exactly one in which such reason was available to the learned Judge, because the question was of the boy's removal, not merely from one educational and social position to another, but also from an environment, which, certainly before long and possibly in the few months of normal minority remaining, would determine and might arrest his intellectual and normal development irreparably. I add that I concur in thinking any separation of the minors inexpedient.

74. There remain only the questions of fact, relating to the two incidents alleged in the particulars and the alleged breach of the agreement between the parties. I deal with them at length in consequence of the volume and nature of the evidence, and because the learned Judge's conclusions as to those incidents seem to me incorrect and his treatment of the case as to the agreement inadequate in material respects. The consideration of the latter will involve an estimate of the defendant's standard of conduct and motives, which will be relevant in dealing with the evidence as to the incidents, and I therefore turn to it first.

75. It is common ground that the defendant was permitted to remove the minors from India in consequence of an understanding with the plaintiff. He contends that it included a condition forbidding them to associate with Leadbeater except in the defendant's presence. She denies that it did so, but admits that, if it did so, it was broken, since she left Leadbeater and the minors together in Sicily about June or July 1912. The question is whether this condition was part of the understanding or whether, as the defendant alleges, she promised only an immediate separation, expressly refusing any guarantee against the possibility of Leadbeater rejoining the minors in the future.

76. It is necessary before dealing with the direct evidence, to make the positions of those concerned clear. The plaintiff is a theosophist of 30 years' standing and has been Assistant Correspondence Secretary of the Esoteric Branch at the Adyar Head Quarters of the Society. His devotion to its leaders and ordinary principles may therefore be assumed. Before his retirement from Government employment on a pension of Rs. 112-8-0 per mensem, he held a responsible appointment at the head of the inferior revenue service. There is accordingly some presumption in favour of his honesty; and in fact the only defect which the defendant would attribute to him is a liability to unthinking outbreaks of passion. His letters and evidence do not suggest that he is a man of any special intelligence or was in any particular degree fitted to cope with the difficult position, complicated by considerations of religion and delicacy in which he was placed. It will be material in the sequel that his profession would lead him into habits of subordination to and trust in European superiors, which would naturally prevail in his subsequent relations with the defendant and Leadbeater. The defendant is the President of the Society; and two things are clear from the mass of literature which has been exhibited and from the evidence. Firstly though there may be a body of dissident opinion and though the tenets of the society may not require it, the defendant is in fact regarded, not merely as deserving the most extreme veneration, but as almost infallible by many of her supporters. Ex. F exemplifies this clearly; and nonetheless so, because the defendant in argument expressed regret that it should have been published, since it in fact was printed at the society's press and is sold publicly. It is a notice accompanying her portrait and it ends: “Whether you understand her or not, you will have to follow her implicitly, just because she knows. * * * I have stood beside your President in the presence of the Supreme Director of Evolution on this globe, and I know whereof I speak.” Secondly the defendant is convinced that if certain conditions are fulfilled the body of the elder minor Krishnamurti will be used by an expected World Teacher, a re-incarnation of the being known as the Lord Jesus or Maitreya. This is admitted and it is not necessary to quoted regarding it or the enthusiasm, which the defendant undoubtedly entertains for this object. Leadbeater was the writer of Ex. F. His views on one subject are correctly described in the judgment under appeal.

77. The defendant says that he is spiritually her equal. He holds the meetings of the Esoteric Branch in her absence. She was ready to accept as correct the description of him as an arhut or superhuman being. In Ex. G she said that he stood perhaps the most trusted of his master's disciples on the “threshold of divinity,” though she attempted to attenuate the meaning of the last expression in argument, as having an esoteric sense. Leadbeater'in evidence accepted a high degree of spiritual eminence, and it is not disputed that he shares the defendant's views as to Krishnamurti, performed his first initiation in January 1910 and assisted at the other in June 1912. In these circumstances the plaintiff cannot be expected to support any portion of his case against these two persons with the evidence of witnesses from Adyar; and it is probable that the defendant's principal witnesses, who belong to Adyar, were (consciously or unconsciously) committed to corroborate her and would adopt no higher standard than hers in order to do so.

78. What her standard of conduct is appears from the evidence as to the circumstances in which the understanding above referred to was reached. The plaintiff's dissatisfaction had culminated on 28th December 1911, in consequence of the ceremony of the order of the Star of the East described in Ex. C. He had accordingly complained to Mrs. Van Hook and he saw the defendant on 31st December it is the defendant's own account that he then claimed separation of the minors from Leadbeater. Her intention, she says, had been to fulfil engagements in England and to return in April and then to withdraw for Krishnamurti's second initiation to the Niligiris or Kashmere. But on or about 13th January 1912, Wadia telegraphed that a warrant was likely to be applied for against Leadbeater. It is explained that he meant an injunction against the defendant; but there is no reason for supposing that she interpreted the telegram in that way. Leadbeater left for England on 13th January, although as Biswas said uncontradicted, a course of lectures by him up to 21st had been announced. The defendant explains that there had been no previous idea of his going and that she sent him to find place for the initiation ceremony in Sicily. The plaintiff had returned to Adyar early in January and on 29th January, the day of her arrival there, she had an interview with him, and which he began by again insisting on separation from Leadbeater. It is the result of this interview which (as stated above) is in dispute.

79. Firstly, it seems to me that the resulting understanding, whether the plaintiff's or the defendant's account of it is correct, was reached in consequence of the defendant's concealment of a material fact. It may be doubtful how far the departure of Leadbeater was due to fear of legal proceedings or to the merely theosphical necessity for resort to some place in which the initiation could be effected without interference. But it is quite clear, not only (as the defendant admits) that she did not tell the plaintiff where Leadbeater was, but that she was intentionally silent regarding him. The plaintiff says that on 19th January she told him that she had on his account sent Leadbeater to go where he liked, and there is nothing to contradict this or make it improbable. In Ex. AA1 on 13th January the date of Leadbeater's departure, she referred to the plaintiff's statement that he would be satisfied if she took the boys to Europe, and said that despite the unnecessary expense and for the sake of peace, she had taken tickets for them. On this evidence, two points call for notice. It would have been one thing for the defendant to allege that an immediate separation had been effected and that, no special or early return of Leadbeater being known of as probable, she would give no undertaking for the future; but it was quite another for her to make that reservation, as she did, with the full intention that Leadbeater should rejoin her party within four months and should be closely associated with it and further, in Ex. AA1 (and there is nothing to modify this in the evidence), she made a pretence of having complied with the plaintiff's wishes and taken the boys to Europe against her will, when, thereby she was really effecting the object she had in mind from the beginning. She may have been able to justify this conduct to herself in the light of her great euthusiasm. But, judged by ordinary standards, she deviated from common honesty.

80. And this is material, not merely with reference to her duty to the plaintiff and in connexion with the decision as to the terms of the understanding, but also as regards the presumption in favour of her trustworthiness, on which we have been invited so act in other connexions. The understanding was arrived at on 19th January 1912 by the plaintiff and the defendant in presence of Sir Subramania Iyer Vice-President of the Society, and three other Indian gentlemen, who either hold office or are resident at Adyar. There is on the one side the evidence of the defendant and these gentlemen that a reservation as to the future was made, on the other that of the plaintiff and the fact that Ex. 11 purporting to be a note of what was agreed on and signed by the defendant and her supporters, contains no reference to any. It has been pressed on us in argument that the learned Judge's finding for the plaintiff entails that Sir Subramaniam and those gentlemen deliberately committed perjury, and that it therefore cannot be adopted. But it is quite unnecessary to take this extreme view. For the question is only of the result of an informal conversation regarding which honest mistake or failure of memory might easily occur. It may be that there was some talk of the future as all the defendant's witnesses allege. But it does not follow that any terms of the understanding dealt with it and it is unlikely that any did so.

81. Firstly, there is the improbability that the plaintiff, who had made a concession as to association with Leadbeater in the defendant's presence would have yielded further to an extent which deprived the understanding of all practical value. For it is admitted that there was an understanding and not an unconditional surrender. Next, it is unlikely that this reservation, the plaintiff's consent to which was as much a concession as any other term of the agreement, would not have been placed on record in Ex. 11; and it is impossible to understand the defendant's statement that she wrote this document in order to make her position clear and took down the one point she wanted legally. The purpose for which Ex. 11 was drawn up is not clear. For it was not read to the plaintiff, and he was not asked to sign it, though, according to Sir Subramania Iyer, it was being written by the defendant whilst the conversation went on. It is significant that it was signed by no one until after the plaintiff's departure. Sir Subramania says that, until the defendant read out the draft, he did not know that she was making a record at all. He is clear that the reservation was part of what was said, and explains that the document was intended only to assist the defendant's memory, not to be an accurate record, admitting that he did not consider the effect of each of its sentences. He and the other witnesses are uncertain even as to the two points mentioned in it. None of these witnesses is alleged to have taken part in the conversation except Sir Subramaniam, who repeated some of the defendant's questions and obtained answers to them from the plaintiff.

82. The evidence in fact indicates, and it is also probable, that the defendant alone really conducted the transaction, Sir Subramaniam and the others taking no independent part and in consequence of her ascendancy over them accepting (more or less consciously) her account. This does not rest merely on the general considerations as to her position already referred to. Her letter, dated 28th February 1912, to the witness Wadia was admitted by consent in this Court. It was produced by her for another purpose; but it shows that a month later, during her voyage, she thought it necessary to call on him “to make a mental note” that she had made no promise to the plaintiff as to the future. This letter came before the Court accidentally. But, if the defendant thought it legitimate to make such a suggestion to one of her witnesses, it is possible that she has done so in writing or orally to others on this and (it may be added) other parts of the case. Something may have been said during the conversation of the future. But in face of the omission of reference to it from Ex. 11 and in view of the defects in the defendant's evidence, I must accept the learned Judge's finding that no reservation regarding it was part of the understanding and that consequently the understanding was broken.

83. The learned Judge's discussion of the two incidents specified in the plaintiff's particulars ended only in a decision that they did not occur, and it is only by implication that he can be held to have decided that the plaintiff did not allege them honestly and in good faith. For his judgment does not deal separately with the latter point. I at once agree with his conclusion that the incidents were not established, since as regards each the direct evidence was that of one witness only and the corroboration for it was insufficient to justify an affirmative finding. But the plaintiff's good faith cannot be dealt with so shortly. Each party however claims a decision on it. The plaintiff maintains, it as ground for reversal of the learned Judge's order directing him to pay the defendant's costs, against which he has filed his memorandum of objections. The defendant is interested in negativing it on the ground that his conduct in intentionally making cruel and unfounded charges against the elder minor will disqualify him for the guardianship. She further, if I understood her rightly, argued that the making of the allegations, even if they were sustained or if they were held not to be proved, would alone be sufficient to disqualify the plaintiff in the former event because the result might be the elder minor's prosecution, and in the latter because of the pain to his feelings. But, apart from the improbability of any prosecution at the instance of either the Crown or any individual except that of Leadbeater, the principal offender, it is sufficient reason for restricting the inquiry to the question of good faith that otherwise no parent or guardian could take action except at the risk of losing the custody of his child or ward.

84. It had been observed that the learned Judge dealt with that question only by implication and without separating it from the question whether the incidents alleged actually occurred. It is possible to deal shortly with one matter which influenced him, the changes at different stages in the way in which the incidents were described. Those incidents can be referred to conveniently as the plaintiff's and Laxman's, since the plaintiff or Laxman was the only eyewitness in each case. The three stages in question are the original and amended plaints and the particulars given by the Court's direction after issues had been framed. It should be noted that there is no question of any prejudice to the defendant since the evidence went to establish, if any thing less not more than was alleged in the particulars, the final form of the plaintiff's case. It is not necessary to set out the actual variations since they will be clear on reference to the documents. No doubt it is remarkable that the plaintiff, who had legal advice from the beginning, should have vacillated as he has none. But it does not follow that the conclusion as to his good faith must be affected. These changes in his case would, if they were due to concoction, in no way improve it. His incident had been daecribed by him to Mrs. Van Hook (vide Judge's notes for details) in December 1911, that is before the first plaint, and the description given there agrees with the particulars.

85. As regards Laxman's incident, we have not the plaintiff's account of the earliest information he received, that given him by various defendant's witnesses at Adyar because (rightly or wrongly) a question to him on the point was disallowed. But we have it from Bhagwan Dass, examined by the plaintiff on commission, that Laxman's replies to his questions in December 1911 involved that Leadbeater and Krishna were seen together in suspicious and indecent circumstances though there was nothing amounting to an attempt to commit an unnatural offence. Bhagwan Dass is not one of the defendant's sympathizers, but she does not suggest that he would give false evidence intentionally. The point is that throughout the trial, when actual details have been in question, the plaintiff has not claimed that a stronger case has been established than that to which he was committed by his own and Laxman's statements in December 1911, before his relations with the defendant became strained, or his pleadings were drawn or the variations in them began. It is next material that even in cross-examination, he attempted to maintain that his description of both incidents in the particulars was correct, when it must have been obvious at least to any person acquainted with the law, that such an attempt would be futile and in these circumstances the simplest explanation and that which I accept is not that these incidents have been intentionally described wrongly in a useless manner, which could only frustrate any illegitimate object but that the plaintiff and his advisers really spoke of unnatural offences and of an attempt to commit one loosely and ignorantly. The fact that the plaintiff has been a Magistrate does not make this improbable. During my own service as Sessions Judge and Magistrate no charge of an offence of this description has come before my own Court or any Court subordinate to it; and such charges are so rare in Madras that the plaintiff may vary probably have never had to apply his mind to the law relating to them.

86. The question of fact is not whether the plaintiff had evidence, on which he could reasonably expect to convince a Court of the truth of his charges, but whether he honestly believed, when he made them, that they ware true. The defendant's case is that they are not true and that they may be founded on two occurrences which took place on dates earlier than those given by the plaintiff. Thus in the particulars, the date assigned for the plaintiff's incident is the second week in April 1910, and in argument an attempt has been made to fix it on the 16th. In the original plaint the date was given as March 1910. The defendant would identify the incident with what happened late in 1909. Laxman's incident is referred to in the particulars as in December 1910. The first plaint fixes it indefinitely by reference to other facts as before August 1910, and the second is even mora obscure. The defendant contends for December 1909. If the question were only directly of the plaintiff's good faith, I should not consider the dates or the changes in them important. It is not alleged and it is not likely that the plaintiff keeps a diary or has other means of fixing the date of his own incident; the limits, within which his dates for it are contained are not inordinately wide for the vague recollection on which he had originally to rely. As regards Laxman's incident, he had only second-hand, and could not obtain first hand information. The importance of the dates is in connexion with the defendant's suggestion that the plaintiff has deliberately postponed the incidents until after he made her guardian of the minors under Ex. A, in order to avoid the necessity for explaining why he did so with full knowledge.

87. Now it is material first that the plaintiff has adduced all the evidence available to him. It is not likely that there will be much direct evidence as to what eyewitnesses saw or might think that they saw in a case of this nature since numerous eyewitnesses are not likely to be available. From Laxman, no evidence of value can be expected since he was and is the defendant's servant and subject to her great influence. The circumstances involve no probability that Leadbeater, the elder of the two principals, would make any admissions at the time which would be admissible as evidence. Only denials could be expected from him in evidence, and cross-examination was not likely to be effective, when no second account from a witness on his side was available for comparison. Such a second account could have been given by the elder minor Krishnamurti and to some extent as regards the plaintiff's incident by the younger also. But the defendant opposed an adjournment of the trial in order that they might return to Madras to give evidence. I do not detail the reasons she gave in argument for this opposition because (whatever their importance to her) they included no suggestion that the minors could not be produced by her, no denial of the relevancy or importance of their evidence and no legal justification for her depriving the plaintiff and the Court of the assistance it would have afforded. It must therefore be recognized that the plaintiff was in this respect disabled, through no fault of his. Necessarily, therefore the evidence available to him is only his own, and that of persons who heard Laxman's story at first hand or can speak to his and Laxman's conduct as consistent with what each is alleged to have seen. Evidence of the last description he would not obtain easily, since it would be given by those who were at Adyar at the time. If such witnesses left since, the suggestion would be that they had quarrelled with the defendant, as it was in the case of one whom the plaintiff examined, S.V Subramaniam. If they remained there till the trial they would have been liable to the exercise of the defendant's influence, to which I have already referred in connexion with the understanding. In fact of the eight witnesses on the defendant's side regarding this part of the case, five gave evidence in that connexion, and one of the remaining three is a pariah butler, who is still in her service.

88. Firstly as regards the plaintiff's incident, one thing disclosed even by this evidence to which the learned Judge seems to me to have paid insufficient attention is that something of the importance of and consistent with what the plaintiff alleges happened at the time he referred to. In April 1910 the defendant was absent from Adyar at Benares. During that month, as Leadbeater said, he sent a telegram to her “Antares giving trouble's come at once.” Antares is the name by which the plaintiff is known in theosophy. The original has not been produced, and there is only Leadbeater's recollection that it was sent on 19th. It is certain only that it was not received, by the defendant later than that date since she replied to it by Ex. Y6. On the 18th Leadbeater had in Ex. Y5 referred to the plaintiff as having a bad fit of his insanity “two days earlier.” It is on this that the plaintiff suggests the 16th as the date of his incident; and it was only when discovery of Ex. Y6 was given, that this date could be ascertained. The plaintiff's writing a “long and crazy letter” to the witness Wadia is also mentioned but Wadia cannot remember receiving it. On 20th in Ex. Y6 Leadbeater told the defendant that all was quiet again and referred to the assistance of Wadia and the Judge, Sir Subramania Iyer. On the 21st in Ex. Y8, he mentioned the recent “disturbance,” and the gratitude of his superhuman guide for the help they and Clarke, another theosophist, had given. Three Indian residents at Adyar say that the plaintiff had a cart ready on the 19th morning and was about to remove his sons, when Sir Subramania Iyer was brought by Clarke and pacified him offering to take the boys to his own house, and induced him to join in a telegram to the defendant that she need not be anxious. When so much is admitted, it is easy to accept the evidence of the plaintiff's witness, Subramaniam, that he and others were asked to guard the boys' room at night on the 17th or 18th, though Wadia denies this. That something of considerable gravity, involving opposition to Laadbeater, took place about 16th is clear.

89. It is significant that though Lead-beater's letters to the defendant are not alleged to be incomplete, they do not contain the explanation for what occurred on which the defendant mainly relies here; nor though the defendant was asked in the telegram to take a three days' railway journey is there anything definite as to the form, assumed by the disturbance, or as to the attempted removal. Ex. Y-5 refers to one of the explanations on which the defendant relies as separately or cumulatively sufficient the plaintiff's discovery that the boys were taking milk in the morning. As Leadbeater says, the plaintiff had known of their doing so for some time, and it is inconceivable that this was his motive. The defendant admits that she was told nothing regarding the milk on her return. There is then the fact that Leadbeater had taken the boys to the Seven Pagodas, a two days excursion, starting on the 10th without the plaintiff's permission. But that would not account for the strong measures taken by him or for the explosion not earlier than the 16th. The chief explanation suggested is an incident relating to the boys' evening meal on the 18th, described by Leadbeater in his evidence. But this again does not explain the fit of madness, referred to in Ex. Y-5, as having occurred on the 16th, and as Leadbeater described it, it was wholly insufficient to account for what followed. In order to do so, the defendant thought it fair to ask this Court to assume that the boys were incited by Leadbeater to break their caste at their meal by eating improperly cooked food, a proceeding at which the plaintiff would naturally be indignant.

90. It is astonishing that she should have done so when she had made no such suggestion before the learned Judge in evidence or otherwise and when, as Mrs. Van Hook's evidence shows, the boys had already taken food cooked by her. Of the witnesses, Wadia and Sitarama Sastri referred, but only generally, to the Seven Pagodas and the evening meal, and Subbiah Chetty, who mentioned neither, gave a different account, to which I shall return. Sir Subramania Iyer said that next day the plaintiff complained to him only of not being allowed to take the boys to their meal, though he also may have said that they were too much with Leadbeater. There is, of course, no doubt that his evidence is correct, and the plaintiff's failure to impart his real grievance to Sir Subramaniam requires explanation. Sir Subramaniam himself said however that from what he heard in his house he thought it was a very grave matter, but that when he reached the spot, the plaintiff had quieted down. It is possible that those on the spot induced the plaintiff not to discredit them and Lead beater by complaining to a superior, who would have insisted on full inquiry. I is farther possible that a person of the plaintiff's comparatively low standing feared to speak out to a gentleman, who had officiated as Chief Justice of this presidency, but whose impartiality he may have ignorantly suspected owing to his association with the defendant and his admitted friendship with Leadbeater since 1884.

91. To support the occurrence of an earlier incident, which the defendant suggests as the foundation for the plaintiff's accusation, there is (1) the evidence of Wadia, Sitarami Sastri and Subbiah Chetti regarding his statements to them as to an occurrence on soma date earlier than April 1910 and Ex. A, the letter of guardianship, (2) the defendant's own evidence of a conversation between her and the plaintiff about February 1910. As regards (1), the evidence of these witnesses is very general as to dates, and they took singularly little interest in the matter, no one thinking it necessary to tell Leadbeater what was being said against him. Sitarama Sastri was told by the plaintiff of the incident, when it occurred. But his only action was when consulted as an old friend regarding the draft of Rs. A, to advise him “to make Laadbeatar's matter certain.” He and Wadia say that they heard of the incident before Exs. A. But Subbiah Chetti, who admitted that he was told by the plaintiff in April 1910 consistently with his case of his having seen something hasty with Leadbeater, said once that the plaintiff referred to it as on the previous night and afterwards that he referred to it as three or four months earlier. These witnesses made a point of the plaintiff's having mentioned seeing the younger minor shivering in the verandah, this being consistent with a date in December. But this shivering has never been part of the plaintiff's own account, and if the reference to it has not been introduced by the witnesses intentionally, it may be due to their mistaken adoption of “shivering” as the translation of some vernacular word in the conversations which have probably taken place between them. It is material that the Tamil for shivering and trembling is the same. Evidence of this description from witnesses, who are (as already observed) subject to the defendant's influence and suggestions, is useless. The defendant has relied also on the statement of the plaintiff's witness, Bhagavan Das, that the plaintiff told him of the incident as about two years before their conversation, which was not earlier than December 1911. But this also is highly indefinite. So far the attempt to support any reference by the plaintiff to a date earlier than Ex. A has failed. As regards (2), the conversation with the defendant harself, it can be considered after Laxman's incident, to which also it referred, has been dealt with.

92. As regards that incident, the plaintiff is, of course, at a great disadvantage, because he heard of it only at second hand sometime after its occurrence, and because the fact that Laxman was and is the defendant's servant has been good reason for the plaintiff's not obtaining information from him direct. The evidence as to what he saw which has been available to the plaintiff is therefore necessarily (in the absence of the minors) that of persons who can say what Laxman told them, either at the time of the incident or later, that is, of those who may be called conveniently the Adyar and Banares witnesses, the latter referring to a statement alleged to have been made by Laxman in March 1912. Something was said in argument of the admissibility of each of these classes of evidence in the plaintiff's favour. The incident alleged in the plaintiff's particulars was in December 1909. The Adyar witnesses, it was suggested, spoke to Laxman's previous statements only as to a different incident, one referred to by them as earlier than March of that year, a date covered by Laxman's present indefinite testimony; and it is accordingly argued that the evidence of these witnesses does not corroborate any testimony by Laxman regarding the incident which the plaintiff desired to prove, and is, therefore not admissible under Section 157 of the Evidence Act. The answer as regards these witnesses is that, whether the occurrence of the incident of the plaintiff's good faith and information regarding it are in question he relies not on the date stately given, but on his ability to show by reference to other parts of the depositions that it was given falsely, if not that the date really entailed by other portion of this evidence is affirmatively consistent with his case. In the former event, statements by Laxman as to an exceptional incident which is not alleged to have been repeated and which could not have been confounded with any other, would be available; and, the date given being disproved and the question of the right date at least open corroboration of some value would remain. The Benares witnesses spoke to no statement by Laxman at or about the time when the incident is alleged to have taken place, and therefore their evidence would not have been admissible with reference to its occurrence. It would, however, it seems to me, have been on the same footing as that of the Adyar witnesses with reference to the plaintiff's good faith, the connexion in which, it is to be supposed, the learned Judge required the plaintiff to enumerate these witnesses in his particulars. It is not necessary to deal further with the evidence of the Benares witnesses because the circumstances in which Laxman's statements are alleged to have been made to them render it intrinsically useless. In January 1912 the defendant telegraphed to her Benares agent to exclude Laxman from her bungalow, and Laxman came in distress to one Upendra Babu, who was at the time with the witness, Miss Edgar, and told the former what the latter afterwards understood to be the story of his incident. Again in March 1912, he came to speak to Upendra in the presence of Miss Edgar and two other witneses, Shankar and Biswas, on business, and again told them his story. Miss Edgar does not know the vernacular in which Laxman spoke. All of these persons are of the party opposed to the defendant in the theosophical Society. They made no record of what Laxman said. In these circumstances, their recollection is of insignificant value. I, therefore, do not detail the peculiarities of their version. They may be due to their or Laxman's bad memory or to an attempt by the latter to mislead the opponents of his mistress.

93. It is another of the plaintiff's disabilies that when he was under examination the question of his good faith appears to have been lost sight of and presumably on that account the defendant's objection to his being asked what the Adyar witnesses told him was sustained. There is then on the plaintiff's side only the evidence of Bhagvan Das, which is admissible in the same way as that of the Benares witnesses, though it must be distinguished from theirs as to credit. For his status is higher; and though he is sceptical as to recent theosophical developments under the defendant's direction, he is not openly opposed to her; and his interview with Laxman took place in December 1911, before the plaintiff had become openly hostile. Laxman, he says, told him that in the previous year he had seen, not any attempt to commit an unnatural offence, but Leadbeater and Krishnan in sufficiently indecent and suspicious circumstances. The date referred to is it should be noted, consistent with the plaintiff's case. For further evidence, it has been pointed out, the plaintiff must necessarily rely on persons who are adherents of the defendant, the Adyar witnesses already referred to in connexion with his own incident and the understanding and Mr. Schawrz, Treasurer of the Society and a member of the order of the Star of the East. All of them are accordingly in this matter also subject to the defendant's influence and such suggestion from her of any fact of the truth of which she has persuaded herself as one of them, Wadia actually received regarding the understanding in the letter of 28th February 1912 already referred to and in these circumstances it is surprising how much is available from them in support of the plaintiff's case as to the date and the facts.

94. It is no doubt the case that none of these witnesses refers to any detailed statement as to facts by Laxman, and the fact that some of them did not know his language may be material. But on the other hand it is difficult to see why Laxman should have refused details to Wadia, who did know it and asked for them, especially if the incident was of the comparatively innocent nature which (it will be seen) the defendant suggests and it is significant that none of the others hinted at any doubt as to the correctness of his understanding of what occurred. Wadia said that in November or December 1909, Laxman came and told him in the presence of Subbiah that a bad thing had happened, but would give no details. As Wadia could not get them from Laxman, be went to Schwarz who (he understood) had also been told. Wadia explained: “I have common sense and when he said that a bad thing happened in Mr. Leadbeater's room, I connected with it both Mr. Leadbeater and the boys.” Ranga Reddi's account is very short; he does not uunderstand Hindustani but recognized the word “karab” (bad), and he and Subbiah, who was with him understood that Laxman had seen some thing bad of Mr. Leadbeater with the boys. He fixed the date as November or December 1909, but gave no reason for doing so. According to Subbiah also at the same time Laxman came and told him that the old gentleman (Leadbeater) did a bad thing, explaining that he meant that Krishnan was without his clothes in his room. He was clear that this could not have happened after June 1910, because he was then transferred to another section of the Government Department in which he is employed. He admitted however that in the intervals between his tours he was at Adyar. It should then have been possible for him to show that he was not there at the time alleged by the plaintiff for the incident by official records, but he has not done so. When the plaintiff told him of his own incident in April 1910 he told the plaintiff of Laxman's as similar to it. Schwarz regarding whose ignorance of Hindustani there is nothing in evidence, thought that Laxman spoke to him two or three years before he gave evidence in April 1913, but finally adopted the latter figure. He deposed that Laxman told him of questionable conduct of Leadbeater with the boys, and according to Wadia described the incident to him as something sexual. I have, as far as possible adopted the actual words of the witnesses, because it is important that the great extent to which they corroborate the plaintiff's allegation of an immoral occurrence should be understood. As to the date, their statements include nothing by which they can be checked and are of small value, when the independence of the deponents cannot be assumed.

95. It is in Laxman's own evidence that the clearest indication as to the date is to be found. He says that he told the witnesses just referred to what he had seen the day after. But their evidence contains no suggestion regarding such delay. If it took place, the fact only accentuates his opinion as to the gravity of what he saw. His account now is that Krishnan was standing naked in front of Leadbeater who was naked below his shirt and had his knee on a chair and his hand on Krishnan's head and differs only from the evidence of Bhagavan Das as to his statement in December 1911 by the omission of the detail as to Leadbeiter's hand. He could not give the year or month in which this happened. He also however said that he then thought this was a sinful action and that it was so bad that he told Subbiah and the others. He then went on, and this is most important; “Krishna had great name and fame and what would people think if they saw this? I thought they should not have been together in that room. I knew that Krishna was being brought up by defendant.” Now, so far as Laxman's presence at Adyar is concerned, he was there in December of both 1909 and 1910 and the plaintiff's date is not more probable than the defendant's. But this statement by Laxman fixes the incident he saw as about the latter, since it entails that it cannot have been earlier than March 1910. It was only in the course of December 1909 that defendant 1 saw the boys on her return from her tour. Leadbeater had no doubt, already proposed to be responsible for their education in England. But as he says he merely thought that “they would be useful for any philanthropic work.” There is nothing to show that Krishnan's vocation was common knowledge until at least shortly before his initiation early in January. It was only in February that the defendant discussed her proposal to be the guardian of the minors with the plaintiff and only in March that she became guardian under Ex. A. It is therefore impossible for Laxman to have regarded Krishnan as having great fame or being brought up by the defendant at the time which she alleges December 1909. He must therefore have seen what he saw as the plaintiff contends in December 1910. This is the only important fact in his evidence or in Ex. 7, a statement giving an account of the incident similar to that given above except that Krishnan's naked condition is not mentioned. It is very short and was made in the defendant's presence on 29th January 1912. The suggestions against its authenticity were not, in my opinion, established; but it added nothing to the case on either side.

96. I now turn to the defendant's case that two innocent occurrences prior to March 1910, are the foundation, on which the plaintiff's complaints as to his own and Laxman's incidents have been based. It is further part of her case that the plaintiff spoke of those two incidents to her in February 1910 in the course of a conversation as to her assuming the guardianship, she says that he described Laxman's incident much as Laxman does now, except that he did not say Leadbeater's hand was on Krishnan's head and that he did not tell her what he had seen in Leadbeater's room, but only that it was something nasty, which he would not particularize. In the end he said it was not necessary to question Leadbeater and signed Ex. A without further demur. The plaintiff denies such a conversation in February 1910, but admits one after her return in April 1910. He then, he says, told her that he had seen Leadbeater doing something nasty with Krishnan, that the former had a nasty sexual appetite and that he must be separated from the boys. The defendant in consequence promised that the boys should have separate bathroom and should study in her room or verandah.

97. Firstly, as to the conversation. If the finding is that it took place in February 1910, the prejudice to the plaintiffs's case will, no doubt be serious. The burden of proof of this date is on the defendant, and there is no evidence except hers to set against the plaintiff's denial. She has produced no memorandum or entry in her diary to show that such a conversation took place in February. The plaintiff, no doubt, is not alleged to have insisted on any reference to Leadbeater at the time. But whatever his exact words as to Leadbeater's conduct, and I do not think there is much material difference between the defendant's version of them and his, it would have been natural for her to mention the matter to Leadbeater at once. Such mention, I should have supposed, would have been particularly advisable in view of Krishnan's vocation and Leadbeater's past history; and it may be observed here that the admitted conduct, not only of the defendant but also of all the Adyar witnesses, in hearing allegations by the plaintiff and Laxman regarding Leadbeater's relations with Krishnan without taking any particular action, must attract suspicion, if not censure, since they all must have known of the former's expulsion from the Society and its cause. The defendant however, is not alleged to have made inquiry of Leadbeater at the time or, as will be stated, until December 1911 Lastly, there is the fact that this conversation and its date were referred to first in the defendant's evidence. This is important, because in her original written statement, which was full and argumentative, she referred to the plaintiff's objection to her taking over the boys as based only on Leadbeater's growing influence over them; and in her shorter amended written statement she said that he never complained of any impropriety on the part of Leadbeater or objected to his associating with his sons. Her explanation that she did not connect the plaintiff's admitted reference to something nasty with any impropriety or indecency is weak. Her conduct in connexion with the understanding showed that no presumption could be drawn in her favour, when the fate of the minor was in question. In the circumstances, it is not possible to disregard the plaintiff's denial and find in favour of this conversation or its date on her evidence. The conversation in April 1910 which the plaintiff alleges, is important in connexion generally with his good faith and fitness for the guardianship, though not directly as evidence regarding the occurrence of the incident. It may not be clear from the evidence whether it was or was not followed by a change, immediate or deferred, in the boys' bath-room or the separation from Leadbeater during their studies, which the plaintiff says that he obtained. The latter would probably have in any case followed on the defendant's return to Adyar to some extent. That a conversation, in which Leadbeater's connexion with the boys was referred to, took place is admitted by the defendant. As to its terms, only her statement and the plaintiff's are available; and therefore no finding is possible except that it is consistent with probability and the circumstances that the plaintiff's account is the nearer to the truth.

98. The defendant's explanation for the plaintiff's charges, that they are founded on two innocent, incident which actually occurred, can be dealt with shortly. She says that later she asked Leadbeater what could have given rise to unpleasant ideas, and that, when he could suggest nothing, she asked whether he had ever washed the boys. She speaks of these inquiries as made after she heard of the plaintiff's complaint to Mrs. Van Hook, and that is consistent with the date accepted by Leadbeater, December 1911. But there is nothing to explain why she suggested this washing as the explanation. For Mrs. Van Hook's account of what the plaintiff said to her in no way indicates it, and she does not refer to any other account as in her possession. Leadbeater admitted that he had twice washed Krishna in English fashion that is naked and had cleansed his head with carbolic soap; and this, it is urged is really what the plaintiff and Laxman saw.

99. Now Mrs. Van Hook says that Leadbeater did take the boys into his hath-room and say he would teach them to bathe like gentlemen, though there is nothing to identify the occasion she spoke of with either of the two to which Leadbeater referred. But it is rather improbable that an English gentleman aged sixty-five like Leadbeater would himself perform, and not merely supervise, this menial and unpleasant work and it is remarkable (1) that on each of the two occasions of his doing so, he should have been interrupted by a person who misconstrued what was going on and (2) that he should have had nothing to say in evidence of either interruption and should have apparently not noticed it. If however the story is not a mere afterthought and if these washings really took place it is still impossible to connect them with the plaintiff's and Laxman's indignation. Manu we have been told forbade one man to bathe or appear naked in the presence of another; but we have been shown no reason for believing that that, like others among his prohibitions, has not lost its original sanctity or is at the present day regarded as more than a rule of good manners and ordinary decency. But breach of such a rule would so far I am aware and so far as we have been shown entail no caste or religious disability and would in the case of a boy of fifteen be met appropriately by a warning or slight correction. Certainly the importance of the matter would be utterly incommensurate with the effect produced on Laxman, a Sudra, and not likely to be punctilious in such matters, who yet thought it necessary to give information, not only to the more important Hindus in the compound, but also to Schwarz, a European. There is the further improbability involved in his failure to inform the plaintiff, the fittest person to administer the warning above referred to, or to take the simple course of pointing out to Leadbeater that his proceedings were open to objection or asking some more important person to do so. This explanation, as a whole, in fact attracts additional suspicion to Wadia's statement that Laxman would not particularize what he had seen, and to Laxman's introduction into his otherwise extremely meager evidence and statement, Ex. 7, of a reference to the position of Leadbeater's hand on Krishna's hair, as designed to corroborate the story that it was being cleaned. If this part of the defendant's case is in any degree true/it is still impossible to connect it with either the plaintiff's or Laxman's incident.

100. That closes such detailed examination of the evidence as seems to me practicable or necessary. Other matters, no doubt, weighed with the learned Judge, the exclusion by the routine in force at Adyar of the possibility that time could be available for these incidents and the publicity of Leadbeater's room. Something also has been said here of the impossibility of the plaintiff's having seen what he alleges from where he says that he was or with the light available. But all this comes to very little. The routine was spoken to as comprehensive. But it cannot be presumed that it was invariably observed with absolute or even comparative punctuality by every one. The incidents were short, and as regards one of them, it was Leadbeater himself who in the defendant's absence was responsible for strictness. Regarding the actual publicity of his room and the risk he would run at the time in question there is no definite evidence. The argument from the plaintiff's inability to see what he alleges appears to me to be available only because insufficient attention was paid to the point at the trial. For his ability to see Leadbeater and the boy depended on his exact position at or near the doorway, regarding which nothing is available or could be expected; and, when he maintained that, though the doors were shut there was sufficient light, the matter was not cleared up by his being asked to reconcile the two statements, one possibility being that the doors he referred to were the wire doors, also mentioned.

101. There remains the argument against the plaintiff's case and his good faith that, if he had the knowledge he now alleges of both incidents, it cannot be supposed that he would have allowed Leadbeater to continue to associate with his sons and would not have attempted to terminate the guardianship earlier, and in the alternative it is urged that, if he has acquiesced with full knowledge, he is unfit for the guardianship himself. It is, no doubt, possible that his conduct has been in some degree foolish and weak. But I do not think that the conclusions proposed follow from what has been proved. It would have been useless earlier, as it has proved useless now, for him to make his charges against a person of Leadbeater's position with only his own evidence in support of one of them and only that of a hostile witness in support of the other and it is to be doubted from such indications of the defendant's attitude as this case affords whether anything less than the formal establishment of the charges, and even the order of a Court, would have induced her to abandon the minors. It was only, after the process of deification of Krishnan had made progress, and its effects and tendency grew clear, that material of any practical value for a repudiation of Ex. A and an attack on the defendant became available; and it was on that process reaching the point indicated by the ceremony described in Ex. C that the plaintiff took action by his disclosure to Mrs. Van Hook and conversation with the defendant. Before and after that he had to weigh advantages, those, to be secured by acquiescence being considerable. Probably for some time at least he was gratified at his son's reputation and the respect he himself enjoyed. He had also to consider the great material advantages to the minors and himself from the defendant's assumption of responsibility for their future. Throughout on the occasions already referred to, he had been asking for their separation from Leadbeater and he mentions others, on which he did so, though there is nothing: specific regarding them. He obtained what he might fairly regard as equivalent to such separation, the defendant's protection of the minors by their constant association with her, except for short periods, from April 1930 until December 1911. It was such a separation which he pressed for in January 1912, and which in a qualified form he thought he had been promised. When he found that the defendant's promise had been broken in Sicily, he took action by his notice of 11th July 1912 without, I think, undue delay. His suit was brought in October. It is suggested in the judgment under appeal that his charges are merely a revival of those made in 1906 against-Leadbeater in order to justify his repudiation of Ex. A and were instigated by interested persons, who have financed him. But this takes no account of the weakness of the available evidence for those charges and the impossibility of sustaining the case until (as observed above) more was available to support it; or of the absence of evidence of any communication between the plaintiff and his financial supporters before December 1911, when the charges were first made. It is not necessary to assume that the plaintiff is a person of particularly refined sentiment or decision of character; and it is not, in my opinion, difficult to conceive his acting as he did in spite of his knowledge or necessary to hold that he disqualified himself for the guardianship by doing so.

102. We have, no doubt, dealt with the case at some disadvantage, since we have not had the learned Judge's opportunity of hearing and seeing the witnesses. But that is of the less moment, because they were all, except Laxman, educated persons of mature age and some position and inference from their demeanour would be indecisive, and because it is on the admissions of the defendant's witnesses and on admitted facts that argument has mainly proceeded. In the absence of the minors, the direct evidence of each incident which the plaintiff could adduce was limited, and in view of the defendant's influence and proved conduct, unbiased indirect corroboration could not be looked for. Yet, in support of his own evidence as to one incident, he has shown that his conduct at the time was consistent, if not necessarily with his allegations in detail, yet only with some occurrence of equal gravity. As regards the other he could not be expected to rely on the only direct evidence, that of the defendant's servant. Yet even that evidence included indications that what he saw was not merely grave, but consisted in reprehensibly indecent conduct; and those indications were repeated more distinctly in the evidence of the unfavourable Adyar witnesses, the defendant's adherents. On the other hand, the defendant's attempt to prove that other innocent occurrences on other dates before Ex. A were the foundations on which the plaintiff's charges were founded, and her attempt to show that his subsequent conduct has been irreconcilable with his belief in the truth of those charges have failed and accordingly he must be held to have proved as much as the circumstances admitted of his proving and as the Court should require. So far as the materials available justify a conclusion, it is one in the plaintiff's favour. He has established, in my opinion, that he acted on an honest belief, if not literally in the charges as they were made in the particulars, yet in a substantial foundation for them and therefore I hold that grounds of appeal 27 and 28 have not been sustained and that the learned Judge's order as to costs is not justified. I would therefore concur in dismissing the appeal with costs and, allowing the memorandum of objections with costs, would modify the decree by making each party liable for his and her costs in the Court of first instance.

S.N/R.K

103. Appeal dismissed.