RAJA HAlCMTTrJ GHULL SIN@ 21. KOOMER ~ T T N ~ ~ E A M SING Cl8341 I1 KNMP, 20s
The Royal Court put in an a ~ w e r * to this petition, signed by their ~ a i l i ~ . They
denied that the leave to appeal was refused on account of the Order in Council
of the 13th of May 1823, although it had been cited, as well as @(Et] another Order
in Council of the 28th of August 1580 [we man , Is. Crim. Law Corn. 1847-48,
p. 3131, which provides, ‘‘ that it shall not be lawful to appeal in any cause criminal
.or of correction, nor from the exeoution of any order taken in their Court of Chief
Pleas nor in Cries of Earo iJ ; and these Orders were suficient to have justified the
refusal; but that they had refused it not for these grounds only, but for other reasons
arising from the case itself. They then commented at considerable length on the
merits of the c&se of the petitioners, and the authorities cited by them in their
petition.
gram, for the Petitioners,-~~e principal question is, whether the Board wilf
grant us liberty to appeal when the sums in question. are both sepa ra~ ly and col-
lectively less than that fixed by the Order of Council of the 13th of May 1823 [see
Stat. It, and 0. 1899, p. 1671, art. 31. This Order does not take away His ~ a ~ e s t y ’ ~
power of g r a ~ t i n g appeals in cases not provided for by it; and surely this i s a case
which requires the exercise of that prerogative, where the question affects the rights
of the whole parish. Should, indeed, the Council not advise His Majesty to grant
appeals in cases of this kind, the c o ~ e q u e i ~ c e ~ will be that the courts in Gueri~sey
may, without check or restriction, impose taxes to any amourit under &10 (which i s
the lowest sum for which by the Orders of Council an appeal is allowed,) on every
individual of a population of 25,000 inhabitants.
[See also er v, ~ T e u s ~ T e r of SG. Peter PorG, 1836, 3 Knapp, 407. Appeals from
~uernaey to the Privy Council are regulated by Orders in Council of 13th May
1823 (Stat. R. and 0. 1899, pp. 1671, 1678, 1679, arts, 3 and 8), and 15th of
July 1835 fib. p. 1680). On point as to adm~asion of appeals when sums are
below appealable value, cf. ~ ~ o o j € ~ ~ o ~ ~ n z ~ ~ ~ ~ b d o o ~ ~ v. Ba6oo o o G e c ~ ~ ~ ~
1831, 1 Moo. Ind. App. 363 ; Baboo Copak &all T ~ ~ ~ o o r v. ~e~~~~~~~~~~ En&
1860, 1 Xoo. Ind. App. 548; KO Hhine v, Smdden, 1868, 5 Moo. P.C. N.S., 67.
As to criminal- appeals, cf. ln ire Anzes, 1841, 3 Xoo. P.C. 412; ~s~~~~~ v. 8.6.
for Jersey, 1883, 8 A.C. 304. In ~ e ~ s o n v, Be~son, 1849-50, 7 Moo, P.C. 31-,
Lord rough am stated that there was no author it^ for &e footnote by Mr.
Knapp to Tupper’s case (ante, 2 Knapp, 201).]
The Committee granted the prayer of the petition,
E2031 ON APPEAL ~ ~ O M THE S U ~ ~ ~ ~ ~ ~ ~ A ~ N ~ A ~ A ~ ~ U ~ OF’ ~ G~~~
RAJA EAIMUN CHtrLL ~ I ~ ~ , - ~ ~ e Z Z ~ ~ ; O O X ~ ~ G U S ~ E A M SING,-Ee-
s~onden t [Jan. 1, 2, and 4, 18343.
An adoption by a widow after her husban~s death, without any a~uthority from
hini, i s invalid in the Zillah Qf Etawa, in provinces ceded by the Nabob of
Oude, in 1801 [ a Xnapp, 221, 2225,
During the pendency of ib suit ~ n s t ~ t u t ~ by a person claiming as an adopted scn
against a widow, the widow dies, and proclamat~on is made for her heirs
to come in and defend the suit, and the claimant is put in possession of the
property in dispute by the collector. The Court of Sudder Dewanny Adawlut,
decide that the claimant has not made out his title, and direct the collector to
put in possession of the properby another person who had come in under the
* Whenever the Royal Courts of Guernsey and Jersey refuse to gsant p e ~ i s s i o ~
to a party to appeal, and a petition for that purpose is presented to the King in
Council, a letter is sent to them from the Council Office desiring them to state the
reasons of their refusal, to which, as ia the present case, they retuxn a n s ~ e r s igned
by their b a ~ l i ~ s . T h i s practice does not extend to eti it ions for leave to appeal from
the courts of any other of his Majesty’s dominions. [But see Behon T. BeFson,
_-.-___-- -- _ _ _ _ _ ~ I
1849-50, 7 NOO. P.C. 34,]
P.C. I. 457 1 Bct
11 KNAPP, 204 RAJA HAIMUN CHULL SING ‘U. KOOMER GUNSHEAM SING [1834]
procla~ation, but produced no evidence of his title.
part of the decree must be reversed [2 Knapp, 2231.
Held, that the latter
Rajah Koosul Sing, the Zernindar of Ilcrhroh, in the province of Bareilly, died
i i t the year 1776. He left no issue male living at his decease, and two only of his
wives survived him; of whom the elder, Ranee Chunder Bunse, died shortly after the
British Chwernrrient had taken possession of Rohroh amongst the other districts
which were ceded by the Nabob of Oude by the treaty of the 10th of November 1801 ;
the younger, Ranee Budhorum, was the principal defendant in the1 original suit.
The appellant was one of the grandsons of the deceased Rajah’s brother, and he was
born about two years after the Rajah’s death; he claimed the z e ~ r i d a ~ s the
Rajah’s adopted son, by virtue of an adopt~on by his widow, the Ranee Chunder
Bunse, about ten years after the Rajah’s death. At that time, the appellant was
his nataral father’s eldest son ; and his only brather died shortly afterwards. The
first triennial settlement with the British Government on their taking possession
of the oountry was [Z@] made with the a p p e l ~ ~ ~ t as zemindar of Robroh; the
secorid, in 1806, was made with the Ranee Budhorum, who shortly afterwards brought
an action against the appellant for the proceeds of the zemindary during the preced-
ing three yearn, which she alleged he had merely received as her agent. This
action, the proceedings in which are reported in Macnaghten’s cases (Ralzee 3?~udorum
v. Nemulzchul Siizgh, 1st Macnaghten, 59), was finally decided in favour of the ap-
pellant, by the Sudder Dewanny Adawlut, on the ground that although the evidence
of the settlement having been made in the appellant’s name would not have set
aside any engagement with the Ranee for the profits of the zemindary, yet that she
had failed to produce sufficient evidence of any such engagement.
The suit, from the ultimate decision in which the present case was an appeal,
wa8 oonmeneed by il plaint filed by the appellant, on the 22d December I81 0, against
the Ranee Budhoi-um and one Chunder Sing, in the Provincial Cr,urt of Bareilly.
The Ranee put in an answer, and the other defei~dant disclaimed all interest, except
as an under tenant. The appellant
proved his adoption, and a settlenient with him as zemindar for part of tbe zemindary
by the Nabob’s government for the Fusly year 1189, A.D. 1782. He also proved
his oocupation of it for many years previously to the cession to the British of the
district. The witnesses on the part of the Ranee deposed, that she and Ranee
Chunder Runse had always been the actual proprietors of the zemindary; that the
appellant had only occupied it as their karinda or steward, with a yearly allow--
ance of 50 rupees for himself and 25 for his wife; [205] and that after tlie death
of Chunder Bunse she had, from her private funds, paid to Government 7300
rupees on account of it. The Provincial Court, after taking the opinion of the
pundit of the Zillah Court of Etawa, in which Rohroh i s situate, (the pundit attached
to their own court being absent a t the time) on several questions, the principal of
which were, whether the two widows or either of them could adopt a aon, to which
his answer was, that they could not do so, unless it was done by the directions of
their husband, or with the consent of their relations; and whether their ad~p t~oI i
of the only son of his father (as the a p p e ~ l a n ~ was) could be ralid, to which his
answer was, that. the father and mother in such a case would be proliibited from
bestowing him and the Ranee from taking him; yet nevertheless, that if he was so
bestowed and taken in violation of the Shasters, he would be an adopted son, but
the consent of the remaining relations must have been first obtained, for by the
institutions of the Shasters a woman is deprived of all authority to act from her
own inclination. On the 12th of April 1813 the Provincial Court dismissed the
appellantis claim with costs, on the grounds,-lst, that as no directions o r advice
were proved in have been given to Chunder Bunse by her relations to adopt the
~ p p e l ~ ~ t , - ~ e was not proved t o have been adopted agreeably to the forms required
by the Shasters ; 2dly, that i f he had been really adopted he would have obtained
possession of the whole raj left by Koosul Sing, because a raj is not subject to
partition, whereas, in truth, he only ocoupied part of it, the Bohroh Talooka, which,
according to some of the witnesses, he did only in the quality of a karinda.
T%e ~ppellant appealed from this decrse to the E2061 Sudder Dewanny Adawlut.
That court directed {he opinions of the pundits attached to their own oourt, and
458
Evidence was then gone into 011 both sides.
RAJA ~~~~1~~ CEULL SING V. ~~~~~~ ~ w ~ ~ ~ E A ~ SING [I8341 11 KNAPP, u)7
also of the pundit of the ~ r o v ~ n c ~ a ~ Court of Bareilly to be taken on two questions;
I&, hethe her i f a Bindoo of the ~ a j p o o t tribe give his only or eldeat son to a~ of
his relations, or their widows, for the purpose of adoptioK~, such an ~doptiox~ wodd
be valid and legal by the Shasters in force a t Zillah Etawa Soobah Agra ; and whether
a son so adopted would be heir to the property of tbe adopt i~~g party, and of the
husband of the widow adopting him or not. 2dly, If, agreeab~~f to the a p p e l ~ a l ~ ~ ’ ~
s t a t e ~ ~ ~ e n t ~ Xanee Chunder B ~ n s e adopted him without having received direetions
from her ltusband sa to do, though acting under the d~rections of his relatio~~s, and
subscr~bed to all the forms laid down for adoption, is this adoptio~~ agreeably to
the Shaster~ in force in ~ i l l ~ h t a w a valid and 1-1 or not; and i s the a ~ p e l ~ a ~ t ,
a~~hough t e Ranee ~udhorum, the younge~ widow, La1 ~ h a i m u n Sing, the appel-
IantZs father, and the sons of ~ h u ~ i c k Sing, the seoond son of the brother of KOOSU~
Sing, are alive, the rightful. pro~rietor of the raj and ~ e ~ ~ i i ~ ~ d a ~ ~ y left behind by
ICoosuf Sing or not. They also directed the opinions: of the puiidits Rnd decree in
a case of Rubb Lal, which involved the same points as the present case, and in
any other ciises of a similar nakure d e ~ r m i n ~ by the ~ r o v ~ i i c ~ ~ ~ Court, to be
transmitted to them.
The answer of the pundit of the ~ r o v ~ n ~ i a l Court of ~ s r e ~ l ~ y to the q u ~ t ~ o n s of
the Sudder Adawlut was, that there were two kinds of adoption, the Kevala and the
~ w ~ y a ~ ~ ~ o o s ~ y a y a n a . B the first, the adopted son becon~es the son of the adopted
father only, and thus becomes u n q u a ~ ~ f i ~ d to offer o b l a t ~ a ~ ~ s to the ~ a n e s of [20’7]
his natural parents, or to share in their property; and that if any person bestows
h i s only son under this form. of adoption, it would not be r e ~ o ~ ~ s e d by the Shasters j
but under the ~ w ~ y a ~ o o s ~ y a y a n a farm, the adopt^ child r e ~ a i n e d the child of
his natural, as well as his adopt in^ parents; and that an ~doptioy~ o f an eldest
son, or only son, in this form, would be p e ~ i t ~ d by the Shasters. The conclusion
he drew was, that the adoption af the a ~ p e ~ l a ~ ~ t in &he ~ w a y a x ~ ~ o ~ h y a y a n a form
by the Ranm Chunder Bunse, under the advice of her husband’s relations, was
strictly legal; snd that by virtue of this adoption, he had a cIeazr right to the ra j
and ~ e x ~ ~ i ~ ~ d a i ~ , o ~ Koosul Sing. Ee cited in this opinion no p a ~ i c u l ~ r texts or
authorities, but stated that he had written it after co~lsulting the:
~ y a v a h a r ~ ~ ~ a y o o k ~ , in force over the Zillah Etawa. The answei- of the pund~ts of
the Sudder Dewanny Adawlut was, that if a Eindoo Itas an only or many sons, and
~es to~vs hi onIy or his eldest son upon any of his relations, or their widows, to adopt,
unless it be in the ~ w a ~ a ~ o o s ~ y ~ y a n a form, such m adoption is: void and illegal, accord in^ to the law laid dawn in the ~ ~ t a c s ~ t a r a and Dattakn ~ ~ n ~ a ~ ~ ~ ~ a , in force
in the Z3XXah Etawa; and they ciiad the follow~i~g texts in c o ~ ~ o ~ o ~ a , t ~ o n of this
opinion. I‘ It i s unlawful to bestow or accept of an only ~ n . ” - ~ ~ c ~ ~ u n of ~as ish ta
~ o Q n ~ {~I tacs~tara , cap. i. s, 11, par. I1 j and Colebrook~ Dig. vol. iii. cap. 10, s. 8,
v. 273). “ Should any person have an oniy $on, he shall not bestow him upan any
per~n.”-~uchun of Soonaka Moony, in the Graatha of the Dnttaka Mirnarns% (s.
4, v. 3, Sutherland,s ~ ~ n s ~ a t i o n , . p. 62). “The prohibition [ZOS] laid upon a
father to sell or bestow his s ~ n applies to that person wBo has an only s o ~ i ~ ’ - ~ a t t a ~ a
~ i ~ ~ m s a ($id. v. 8, ~utherland, p. 6). ‘‘ If a person has niany children, it shall
be un~awful for him t o beatow his eldest son upon any one; because the father, at
the birth of the eldest son, i s Galled a person ~ o s s e s s i n ~ a child, and t.hat son has
a preference in the p e ~ o ~ ~ n g of the duties to his father” cshara (cap. 1,
S . 11, par. 12; but the telrt in the trans~ation by Mr. Col differs s ~ ~ g h t l ~
from this version). Upon the s m n d question they a n s ~ e ~ ~ d , that. the a d o p t ~ o ~ f
the appel~ant, whether his father had an only, or greater i l u ~ ~ e ~ b of sons, was
invalid ; because a widow is not at liberty to adopt a Bar). without the express direc-
tions of her husband ; and that the appe~lant? in CoK~se~~ence, had no right to the
raj and z e ~ i ~ d a ~ . In suppoxt of this op~nion, they cited %he ~ a t ~ ~ a ~ ~ ~ a ~ s a
(se I, v. 15, 16, 17 and 18; Sutherland, p. 6): It is ~ ~ h i b i t e d to a, w o ~ a ~ to give
or accept of a son for adoption, unIess acting under the express directions of her
husband ;,r and the e ~ p l a n a t i o ~ ~ f the writer of that treatise, that the word (‘ Toman pp
means equally a. wife and a widow, both of whom me under author it^, the one of her
l~usband, the other of ber usb band's relations; and that no such words a6 ‘‘ et cetera ’’
being added to the word husband^' a widow can act under the directions of her
husband done,
459
1s APE ms EASA ~~~u~ CHULL SING v. ~~~E~ G U ~ ~ ~ ~ ~ SIX@ E18341
In addition to; these opinions, the Sudder Ad~wlut received from the ~ r o v i n c ~ a l
Courk the proceedings in the case of Rubb La1, which they had required, and in
another case of Shumshsre 'Mull. As fa r as ihese mses ~ e m b ~ ~ the present, the
opinions of the pundits in both ef them cdncid with thos0 of the A d a w - ~ 2 ~ ~ l u t
Court; and they also ins~ected their own proc~dings and the pundit7s op~nions I s
the cam of Raja& ~~~~~~~~e ~ ~ 1 1 v. Rame ~~~~3 pi'omww, ~ p o ~ e d in 2d Mac-
n a ~ h t e ~ ~ 169, which proceeded almost co~mporaneously with this cause. The ap-
pellant also put in two prwedenh of proceedings in the City Court of Benares in
a case of a similar nature, where, however, the opinion of the pundit was, that on
adoption by a widow, the consent of her father, and, i f she had no father, the consent
of her husband's relations, was necessary ; but that she might, in a. case of dest i tut io~~
adopt without any consent, and the adoption would be valid ; but he cited K ~ O texts in
support of this opinion.
~ e f o r e , h ~ ~ e v e r , the court gave ~ u ~ ~ ~ e n t , th Ranee ~udhorum died j and on the
4th of March 1816, it directed a p r ~ l a m a t i o ~ to be made for her successors to come
in to defend the cause. Two persons came forward in obedience to this proclama-
tion, the respondent Gunsheam Sing, who claimed the zerninditry as son of Koosuf.
Sing by a, ~undappa marriage with a seventh wife, and ~ u t t u n Sing, who claimed
it as the g r ~ ~ d s o n f Icoosul Sing by his daughter by the Ranee Chunder Bunse.
No evidence was entered intQ by the respondent or Ruttun Sing in support of theix
claims. On the 14th of July BI?, an order was made by the Sudder Dewanny
Adawlut, " that there was no reason to reverse the decree of the Provincial Court ;
that the adoption pleaded by the appellant to have taken place by the Ranees Chunder
Bunse and ~ u d h o r u r ~ ~ , after their husband's death, and without his d~rect~ons, was
invalid and illegal by the Shasters; that his ~ c c ~ p a ~ c y of th0 lands in contest with-
ouL let o r ~ o l e s t a ~ o n had not been proved, 80 that the court should, according to
~e~u-[ZlO~-~at ion 11, S. 18, of 1803, confirm him therein, m d reject the claims of
othexa, for he a p p e a ~ to have occupied fox three years only, for which the settle-
ment was made with him rut the desire of the Ranee Budhorum') Before, however,
final orders were issued as to the claims of the rapondent and Ruttun Sing, thc
opinion of the pundits of the court was directed to be taken on their claims. The
opinion of the pundits was in favour of the claim of the r ~ p o n d e ~ t , as a G u n d a ~ a
marriage is valid a ~ o n g s t he ~ a h a t t ~ a s , to which tribe the parties in the suit
belonged.
On the 12th of August 1811, the final decree of the Sudder Adawlut' was made,
which, for the reasons given in the order of the 14th of July 1817, confirmed the
judgmen'c af the Provincial Court of Bareilly, and, after reciting the opinion of the
pundits, ordered that the landed property in di8put.e should, in right of succession,
descend to the resp~nd~nt .
From this decree, the a p ~ e ~ l a n t petit~oned the court below for leave to appeal,
par t ic~l ru~~y insist~ng upon the fact that no proof whatever had been adduced by
the respondent of the alleged ~ u n d a r p a mapriage. During the pr~eedings before
an appeal was allowed, a return was rnad0 to the court from the collecter's o ice
of the Zillah Etawa, stating that the first settlement after the occupation of the:
territory by the British was made with the appellant, -3.8 it zemiadar by right of
succession, and under a pottah from the Nabob's g o v e ~ m e ~ ~ t ; that. a t the second
he failed to attend, and it was made with the Ranee Budhoru~~, as was also the
third; that the fourth, on the 11th of January 1816, was made on account of the
disputes between the parties with the farmem, and ths ~ f a ~ i ~ ~ ~ a n ~ rights divided
between the appell~nt and the Ranee, E2111 who having died within a month after
its conclusion, the fifth settlement was entered into on the 28th September 18x5,
with the a p p e ~ ~ ~ n t , who was then in possession. ~ ~ l t i m a ~ e l y an order was made by
the p udder Adawlut, on the 10th of August 18x8, a d ~ i t t i n g the appeal, and direct-
ing the collector and judge of the district of Etawa to put the respo~~dent into
possession of the estate in question.
Millar and ram for the A p p e ~ ~ a n ~ - ~ h e appellan~ had a p e r f ~ t l ~ good title,
by virtue of his adopt~i~n, to the estate in dispute, The a b s ~ l u ~ adoption of an
eldest son of another person i s not absolutely prohibited, according to all the
authorities: ~ ~ i t ~ e r ~ a n d ' s Synopsis, p. 6 ; Stran~e's Mindoo Lawy vol. ii. p. 106.
Even if pro~ibited, the ~ r o h i b ~ t i o ~ s merely directory, and the adoption is good
460
RAJA ~~~~~~ OHULL SING 21. ~ O O ~ ~ R ~~~~~~ SWG [1$34] 11 ~~~, 212
(see on this point also, ~ e e r a ~ e ~ u ~ l ~~~~~ v. ~ u ~ a i ~ €'~u~, ~trange's ~ a d r a s
Cases, 78); although guilt may attach both tu the adopters and the parent giving
in adoption. The maxim of the civil lawy ~~~~~ vaEet pzlod fieri mm debuit, pre-
vails, pe~haps, in no oode more than in that of the ~ ~ n d o ~ . There is no reason,
howevery to suppose that the adoption was not in the ~wayamooshyaya1~~ fom,
and indeed it must be p ~ e s u ~ ~ to havs been so, after the long time at has
elapsed since i t took place, In that f o m it would be valid, according to the op~nion
of all th and the w e l l - ~ o ~ Windoo lizw on the
subject : The other objection to the adoption
that was no proof of an express direction given
to Chun it? raises a q u ~ t ~ o n which depends
entirely prevails in the p a ~ ~ c u € a r la,^ of
~ t a w a ;for, aworcfing to the B e n a ~ ~ and the ~ a ~ ~ a s h ~ r a sc ools, such a d ~ r ~ t ~ o n
would not be required; a~though we admit it would be n ~ ~ s a ~ a w o r d ~ g to the
doctri~es of &e Sengal schoof : ~ t ~ a n g e ' s ~ ~ n d ~ Law, vol. i, pp. 79 and 80, vol. ii.
and 96 ; ~ a c n a g h t ~ n ' s ~rinciples? vol. i. note to p. 68 ; ~olebroo~e's Notes to
taeshara, cap. i. s, 11, n. 9. Xn the countries vhere the ~ a y u c h a ie the pre-
t e ~ ~ b ~ k , there is no doubt that such an adoption is valid, after the con-
current op~xiion of all %hihe pund~ts in the cases of Sree ~ ~ ~ o o ~ ~ j e e v. &ve GofEIoo-
~ # ~ ~ ~ ~ c j e e (1 ~ o r r ~ a ~ l e ? 181), and %we&& Ea0 ~ f f ~ ~ ~ . v. ~ o v ~ ~ Rao ~~,~ ~~
(2 ibid. ?E), in both of which the decisions of the Sudder Adltwlu~ of ~ o m ~ a y were
in favour of the a d ~ ~ t i o n s ~ In the case of the Ranee of Ramnad a similar decision
was made by the Sudder Adawlut of Madras, which was subs~uently, although upon
a different ground, confirmed in the Privy Council. The opinion of the pundits
of t.he P r o v ~ ~ ~ c ~ ~ l and Zillah Cou&s, who must be supposed to be acqua~nted with the
law of their owll pmpince and aillah, ought th to be taken in fayour of the
~ ~ o p t ~ o ~ ~ , in p r e f e ~ n ~ to that of ths pundits of the ~ u d d e ~ Adawlut in op~osition
to it, p ~ 0 ~ u d ~ ~ , as from their s ~ t u a t ~ ~ n they ma-y well be presumed to have been,
in favour of the doct~ines of the Bengal s o h ~ l . The case of S ~ ~ ~ e ~u~~ v.
DiJraj on^ (2 ~ a ~ n ~ ~ t e n , 169) i s no authority at aU upon this case, for it
w m decided by the same judg- upon the opinions of the same pundits. With
regard to the reason upon which the Provino~a~ Court d e t ~ ~ n ~ n e d th case, that the
a d o ~ t ~ o ~ wits without the consent of the h u s ~ a n ~ s relatione, it is directly st
variance wi th the [213] evidence, which. distinct~y shows that several of them were
p r e ~ ~ t at tbs c e ~ ~ o n ~ . Bven had they not b-11 scp, a c ~ r d ~ n ~ to the opinion of
the pundit of the City Court of ~ e n a r ~ , and of several of the nine most Iearned
shastrees of the Dman, whose opinions with respect to adoption were taken in
Huebut Bao lllartkur v. Covhzd Bao Bulwuilzt (2 Box. 93), the consent of the hushltnd".~
relations i s riot always necessary.
~ ~ ~ d e ~ e ~ d ~ ~ ~ ~ ~ , howe-v r, of any u t i o n ae to the ~ a ~ i d ~ t ~ of the adoption^ the
~ppel la -~ t had p ~ s ~ s ~ o ~ of the estate?under a good ~~~?~ ~~~ title, from 1782 to
1806, and the two s u b s ~ u e ~ ~ sett ement~, fr&udule~tly ~ ~ ~ a i n ~ (w w e cen~~end)b-j
the Ranee ~ u d ~ ~ o r u ~ during his absence, ought. not to prejudice him. Any claim,
therefe~e, against him would be barred by the Bengal statute of ~ ~ ~ i t a t ~ ~ n ~ ?
of 1805 ; I;CT ~ o o ~ r ~ r t u b S&g V. &d ~ J ~ o ~ ~ Sing (1 ~ a c n a g ~ ~ ~ n ,253) ;
Ram ~ h ~ ~ d ~ ~ v. Kemrea Baee ~~~~. 314) ; u~~ ~ i ~ g J ~ v, Aochun S ~ ~ h (4 Hac-
naghten, 135).
The respondent^ at any rate, hras no %Ne t;o this e&ate, $8 against the ap~el~ant .
His rights, if any? to the ~ t ~ ~ e would have ~ o ~ e n c ~ at Xoosul Sing's death, and
must have been long barred by the statute; buk even i f he were a d ~ i t t ~ to c1aix13,
as r e p r ~ s e n t ~ ~ g the Ranee ~ u d ~ ~ o r u ~ ? he hai p r o d u c ~ no prwf of his title in that
respect. It would be contrary to the principles, not only of our own, but of the law
of ewry civilized country, that after a. g contest between two parties a tkitird
persm ~~~~3~ b0 allowed to step in m d ~ ~ s i o n ef wle p r ~ ~ r t ~ in dispute,
without p r ~ ~ * i ~ g h s ri ht to it in any way except by his own naked a ~ ~ r t ~ o n e .
&?I41 Spankie (Serjt,) aud Lloyd, for R ~ p o ~ d e n ~ s . - ~ ~ e d i r ~ ~ o n s of the
~ i u s ~ ~ a ~ d are ind~sp~nsable in order to enable a widow to adopt a son €or him:
~ a c ~ a ~ ~ t e ~ ' s Principles, p- 68. The ~ r i n c i ~ ~ e d adoption, that the adopting father
should have a son to perform his obs~quie~ and preserve him from the horrors of the
ffindoo Put?, clearly shows that it is an act depe~ding u ~ o ~ the person h~mself, The
461
IX KNAPP, 216 RAJA HAIXUN CHULL SING t.1. XOOMER GUNSHEAM SING [1834]
opinions of all the pundits who have been consulted, with the exception of those of
the courts of Etawa and Bareilly and the City Court of Benares, are unanimous OKI
this subject, and are fully borne out by the authorities to which they refer : Gole-
brooke's Digest, vol. iii. cap. 4, s. 8, v. 273, They are also corroborated by tEe
decision of the Sudder Adnwlut in the case of S ~ ~ ~ ~ ~ ~ e T e Mull v, &lraj Ko%wzt.r
(2 ~ a c n a ~ h t ~ n , 169), and are in complete unison with the de~rminatioil of the
Supreme Court of Calcutta in the case of Rumkisses Sing v. ~ ' ~ ~ k ~ s e r ~ sing, of
which there is a note in Macnaghten's Considerations, p. 195. The decisions in the
Bombay Court, and the opinions of the shastrees consulted there, can have little
weight as to the law in the upper par$ of India. It is clear, even from thenr, that the
perniission to a widow te adopt without her husband's permission is merely a usage
in derogation of the ancient law of Hiindostan introduced of late years in the
Mahratta states ; and the presumption must be in favour of the ancient lam in pre-
ference to the modern abuse of it, unlese it is shown to h&ve been well established
by usage in the particular district in question. Even, however, if a% widow were
permitted to adopt in this manner, the preseat adoption would ba invalid, for an
eldest EOE is forbidden E2151 to be given in ad~ption : ~ ~ t ~ s ~ a r a , cap. i. s. 11, par.
12. The argu,inent that this is merely an injunction directory to the parties adopt-
ing, and not invalidating the act, would tend to render use1es.e a great part of the
doet'rines of tlie Eindoo lawgivers, one of the principal of which was the neeewity
of a nian at the time of his death being the father of male offspring, (Menu. cap. 9,
par. 137, 138,) whichl of course he could not be if he had parted with his only son
absolutely. There1 is no proof whatever that this adoption was in the Dwayamooshy-
ayanrt, or partial form; and the contrary, indeed, appears from the account given
of it by the witnesses. Were, however, these abjections to the adoption given up,
the consent and attendance a"t the ceremony of all the rdat.ions of Koosul Sing is not
proved, as the Provincial Court has dwided; and u n I w their consent was given,
accord~ng t o the opinion of all the pundits, who have been co1zsulted, excepting the
one attached to the City Court of Benares, it would be invalid.
The possession by the appellant i s not- the born fide possession which would
entitle him to claim the benefit of the regulatio~ for l i m ~ t ~ t i o ~ of actions. Until
1806, it w a s in effect that< of the Ranee, Nothing is more common t&an for settle-
ments with Government to be taken by Indians in the names d other persons (sec5
note to Sheikh ~ ~ h ~ u ~ e ~ A& v. , ~ ~ ~ ~ h ~~~~~ 1st ~ a c n ~ h ~ , 253) and no con-
clusion can therefore be drawn from the grant to the appellant during the Nabob's
government, or on our first settlement; and his subsequent possession during tha
wit, under the orders of tlie collector, cannot operate against a claimant.
!%e proclamation upon the death of the Raaw was [2:216] like the advertisements
for an heir in the Court of Chancery. Tbe respondent came forward, and the Court,
when they had decided again& the appdlant's claim, had a right to put the person
who had the best apparent title into- posseseion. Their decree wa8 never intended
to have the effect of definitively ~ ~ a b l i s h i n g the respo~dent's right, or of binding third
persons. Whether, indeed, the rsspondent hras, or has not B right to the property, it
is clear the appellant has none, and ha i s not therefore entitled to dispute the
respondent's psession.
Miller, in reply.--!&e r ~ p o n d e n t was net a pwty to the suit until 1516; he
never had possession of the property until it waa given him by the demee nom
appealed against, and therefore the lcmg p o ~ ~ i o n f the appellan~ without any
claim on his part, must be considered as adverse te him. At my rate, as the re-
spondent proved no title, the appellant was entitled to retain the land, as in Allen v.
Rivingtom (2 Wms. Saunders, l11), where i t appearing, by a verdict in ejectment,
that the plaidff had a priority of possessio11, and no title wae found for the de-
fendant, the plaintiff was held entitled to judgment.
Mr. Justice James Parke.-This case eomw before their Lordships on an appeal
from a decree of the Sudder Dewanny A d a ~ ~ u t of Bmgal, in s suit origin all^
brought by the appellant, in the month of December 1810, in the Provincial Court
of Bareilly against the Ranee Budhorum, for the recovery of the zemindary or
talooka of Eohroli. [217] !%e ~ppelIant claimed as the adopted son of the deceased
Rajah Kowul Sing, proprietor of that ta;looka, who d i d about 1775 ; he claimed by
462
RAJA ~ A ~ ~ U ~ CHtTLL SING 'U. ~ O ~ ~ ~ R ~ U ~ S ~ ~ A ~ SING cl8341 I X KHAPP, 218
virtue of an adoption, which ww made about 1778 or 17779, when the appellant was
two years old, by on8 or both the d ~ e a s e d rajah's widows, Ranee Cliui~der Bunse
and Ranee Budhorum. He also that he had b m in possessiou of the
z e ~ ~ r ~ d a r y , and a c ~ n o ~ l ~ g e d as ah or ~ a ~ o o k d a r from1 that time till the
cupa at ion by the British ~overn~nent , in 1801 or 1802, of the Ceded Provinces, of
which this zemindary formed a part; he stated that, the first triennial settlen~ent was
formed with him in that character, in 1803, and that on its e~p~ra t ion , the wiginal
d e f e n d ~ t , the Ranee Budhorum, f r a u d u l ~ i t ~ y acquired pssession, and obtained the
subsequent settlements.
The defendant disputed the fact of the alleged adoption, and denied its validity,
if true; and insisted that the a p p e ~ l ~ ~ ~ t never had the ~ossess~or~ f the ~ e n ~ i ~ d a r y
in his own right.
Evidence. was given oxi both sides in the Provincial Court as to the facts, but
none in support of the frauds s u g g ~ ~ ~ d by the ~ l a i r n ~ ~ , and the opinion of the
pundit of the ZiXlah Court was obtained upon the law ; and on t.he 12th of April 1813,
a decree was p r o n o u n c ~ against the cl&nx of the a p p e l ~ a ~ t * Pram that decree an
appeal took place to the Sudder Dewariny Adawlut~, in January 1815.
ings in that court, and in the wurse of the same year, the
original defendant died, and il: proclamation was made for his heirs to come in
and defend the suit. On the 8th of $U$ 1817, the present r ~ ~ o n d e ~ ~ t , who claimed
to be the heir of the deceased Rajah, as his son, hy a% ~ u n d a r p a marriage, to @18] L\
seventh wife, and Ruttun Sing, who c ~ a ~ ~ e d 8s the son of the daughter of %nee
Chunder Uunse, were admitted as acting for the deceased respondent. In the mean
time, the collector of the district appears to have put the appellant into possession
of a moiety of the ~ n a l i k h ~ a rights of the zeminda~y in question during the life of
the Ranee Uudhor~m, a i d after her death, in Octo-ber 1815, into the exclusive pos-
session of the whole, and this poss~sion appears to have continued until the deter-
mination of the suit.
The pundits of the Sudder Court, and also t.he pundit. of the Provincial Court of
Baroilly were afterwards c o n s ~ l t ~ ; some p r ~ ~ e ~ ~ ~ were ref rred to, which form a
part of the printed appendix; and the court pronounced a final deer- on the 12th of
~ u g u s t 1811, by which, in the first place, the decision of tho Provincial Court, dis-
allowi~~g the claims of the appellant, was confirmed; and in the second, " it was
finally and fully ordered, that the, property in dispute should, in right of s ~ ~ c c ~ ~ s i o n ,
descend to Gunshe~m Sing, the son of Rajah fccmul Sing, as the p r o p r ~ e t ~ ~ r ; that
the claim of Ruttun Sing should b disallow^^ and Gunsheam Sing is in effect
directed to be put into possession of the disputted zei~inda,ry. From this decree m i
appeal has been made to the King in Council, and the case has been argued with
great talent on both sidw. The two parts of thk decree r q u i r s a distinct con-
sideration. As to the first, the only question is, whether, upon the evidence adduced
by the a p p ~ l ~ a n t aad the Ranee, he has e s t a b l i s ~ ~ a right to the ~ o ~ i n d a r y as
against her j and in d ~ ~ d ~ n g that question the alleged title of the now respondeiits
(which, if true, would have prevented &e adoption together^ must be wholly
omitted. It has never been proved aa a fact [2:219J in the cause for d ~ i s ~ o n , as
between the appellant and the Banee (nor indeed for any purpose), that the deceased
Rajah had a child, the prment r~pondent . Upon the elGdence, the whole question
turns upon the fact of the alleged adoption, and its validity according to the Nindoo
law.
Their ~ r d s h i p s by BO ~ e a n s question the doctrine contended for by the learned
couusel for the appllant, that u n i n t e r r u ~ ~ and undisputed possthssivn for a long
period of time con~t i tu te~ su~c ien t prima facie evidence oaf title. That is a recog-
nised rule ofLour law, and, upon germal principles, for the sake of the security of
property, seems to be a ~ p ~ ~ c a ~ l ~ to that of other countries, where the hwgiver has
not s p e c i a ~ l ~ establi~hed a different ~ r ~ v ~ ~ ~ ~ n ; nor is it disputed, that such a?,
possmsion, even for a less p r i e d than %hat which elapsed between the year 1778 or
11'79, when the alleged adopt~on took place, and 1805 or 1806, when tbe Ranee
obtained %he se t t~em~nt of the talookh w d d have been s u ~ c i e n ~ to have thrown
the bu r t~en of d i s p r o ~ ~ the t i t le of the ~ l a ~ m a n ~ on: the o p p ~ t e party. ~ i ~ e t h e ~
in this cam such a possessicln has been proved on &e part of Hairnun ChuB Sing is
very d o ~ b t f u ~ ; but their ~ r d s ~ i p & think it wholly u n n ~ ~ a r ~ to examine the
463
Pending the prob:
11 KNAPP, zao BAJA ~~~u~ ~ H W ~ ~ SING v. K~~~ ~~ ~ ~ ~ ~ H ~ A ~ SING [I8343
evidence of it in detail, b ~ a u s e , ~ s u ~ ~ n g that the p
perfeetfy clear, upon the appellant's own ~~~~, that p ~ s ~ s ~ o n i s referable
to h is alleged title by adoption, and to that done. If there w w no tit& by adoptio~,
the ~ossess~on avails n~thing.
Of the fact of an a d o ~ t i ~ n by thq seniux widow no re~onitble doubt can be
~ a t e r t a i n ~ ; and, theref#r~ the ~ u ~ t i v n i s r ~ ~ c ~ ( u ~ o ~ this branch of the case)
[ 2 ~ ~ 3 to the sing10 point, heth her that ~ o ~ t i o ~ was valid in point of law, or not.
It may also be a d ~ i t t e d , on the ~ s s u m ~ ~ o n uf the prwf of u n d i s p u t ~ possession
for a long period of time, that every presumption uf fact should be
of the v ~ i d ~ t y of the act by virtue of which it tiwk place; and t
~ r o v ~ n g those c i r c u ~ ~ n c ~ ~ whi h render it invalid in point of lam
the case requires such pr , ought to lie upon the other side. Do% it there for^
appear, that this ado~tion ww, by the ~ ~ n d o o law in force in this district, ~nvalid?
It must be 6rst d e t e ~ , ~ ~ n ~ what the ~rovisions of that law are.
On the past crf the appe~lant, it i s ~ n s ~ s ~ , that a midow, and if there be more
bhan one, the senior widow, inay rnitke it valid adoption of a r e ~ a t i ~ ~ of the deceased
husband, prvvided it be done with the c o n ~ t of the nearest relations of that
husba~~d (who are the w ~ d o ~ i ~ ~ n ~ t u r ~ guardians) ; and that, if an only or eldest, son
be given, su9h gift may be made ~ ~ t ~ ~ o u t guilt in the giver, if made in the part~cuIar
form called ~ a ~ ~ ~ ~ ~ s h y a y ~ n a . ; and if not made ia th& fornz, yet; n%verthe~ess
that it is valid when made.
On the part of the r ~ ~ o i ~ d e n t , it is ~ ~ ~ i s t e d , that the authority of the hus~and
is absolutely essential to the validity of the adoption j and that a gift of an only or
&de& son, unlssa in the s ~ ~ v ~ m e n t i o n ~ form, i s not merely a v ~ o l ~ t i o n crf the law
in the giver, but is absolutely void. The ~ ~ o v ~ ~ c ~ a l Court of Bar#il~y pron~unced
~ ~ a ~ n s t the &ppe~ant on the ground, that., though the widow might make an adop-
tion, she could not do so ~ ~ t h u ~ t Me cons%n~ of her own r ~ ~ t j o n s , which was not
given. The Sudder ~ e w ~ n n y Adawlut c o ~ i ~ r ~ ~ that decision OIL a different
ground, natneKy, thrat by I&w the author~ty vf the husband was esse~t ia~ , and that
such authvr~ty was ~ a ~ t ~ n ~ in this case. Their ~ordships are now to decide
whether that position i s correct, and they must deeidc with the means of i n f o r ~ a t ~ o n
with which they have bmn supplied, par t~y from &e native author~ties in the
several court@ below, aid from the ~ e x ~ ~ o k s which have been e i
course of the a r ~ u ~ ~ e n t . are b ~ u n d to act a c ~ o r d ~ n ~ to the usual ~ r ~ c t i c e ,
and not to advise the reversal of &e decree of the court ~ e ~ o w , u n l ~ ~ s they are
sat is~ed that the decree is wrong, and more e ~ ~ ~ a ~ l y in a case in tvhich the judge
of that court, from his education and habitas, must necegsarily have more infor-
~~~~~o~ on that subject, than rrrost of their ~ r d s h ~ ~ s now present can be posed to
po~~ws. Upon a full c o n ~ ~ d e r i t t ~ ~ ~ of these authori~ies, their ~ r d s ~ ~ i ~ s are of
o p ~ ~ ~ ~ o n , that they c a ~ ~ ~ o t . wme to the conc~us~on that the d ~ ~ s ~ o n of the court below
is ~ r o n g . Accord~ng to the native text writers, it seems to be clear, that the a ~ c ~ e n ~
law of ~ ~ ~ d ~ t a i ~ r ~ u ~ r e d the author~ty of the hus~and ;but i t is also clear that the
strictne~s of that law has been, in many districts, relaxed, or ~ o d i ~ e d by local usage;
and the opinion of the ~ h a ~ r e ~ , as p ~ b l ~ s h ~ in Mr. Borrodaile's Bombay Reports,
is very strong to show, that in the Mahrat t~ states, to the wwt of the ~ e n i n ~ u l a , the
la- do% not require any such ~ u t ~ o r i t ~ to render the act d i d , But that such
r#laxation has exten p a r t ~ c u ~ a r district, i s not, in their ~ordships' judg-
menb. c s ~ a ~ ~ l i s h ~ d : trary, the weight of aut~ori ty i s in
o ~ p o s ~ ~ e conclusion ; n of the ~ u n d ~ ~ of the h u ~ d 0 r tour
cam and 12223 the case of ~ h u ~ s h e r e Mull, Appendix 83 (they are pri
shere M u l l v. Dilrnj Kmulzur, 2d Macnaghten, 1'71), and that of the pundit of the
Provincial Court of A a1 of ~ e n a r ~ s , in the fatter, pearin in^ to b ~ t ~ t ~ e d to
more credit t h ~ ~ those of the pundit^ of the Z~llah aBd ~ r o v ~ n c i a ~ Courts of Ehwa
and ~ ~ r e ~ ~ I y , a.ad of the City Court of Benares.
~ ~ ~ t h ~ u t p r e ~ n d ~ n ~ to decide what i s the law in other- ~ i s t r ~ c t ~ vf India, their
~ o r d s ~ ~ i p s feel bound to say, that in this psrticular district, upon the a u t h o r ~ ~ ~ e s
b r o ~ g h ~ forward in this particular case, %hey must p ~ o n o ~ ~ c ~ , that the Iaw requires
the direction of the husband in order la the vdidity d an adoption. A t all events,
they cannot" say that it does not, which they must do, in order to r e ~ e r ~ e th judg-
ment. Was then. such an autho~ity given in this case? It is clear, from all the
evidence, that it was not. There is no evidence of any kind leading to the supposi-
t
464
RAJA ~ A ~ ~ ~ N CEWLL SXNC V. ~ 0~~~~ U ~ S ~ ~ A ~ SXNO C1834-J I1 KNARP, QaS
tion that i t was; the interval of four years, which elapsed between the ~ a ~ a h ’ s death
and the &doption, raises a strong pre~umption that his authority was not given ; for,
if i t had been, a direction so import-ant, in a religious point of view, would naturally
fiave been carried into effet much sooner after his death; and bmides, not one
13~eading or document on the part of the &ppe~~ant, at any stage of the case, s u g ~ ~ t ~
that such an authority ww8 given.
Their ~ r d s l i ~ p s therefore think, upon this view of the law, that upon the evidence
in ths case it clearly appws , that the adoption was invalid, and the title, which
rests on that adoption, and was the foundation of the suit, being for this reason
invalid, the a ~ ~ e l ~ a n t [&3] must fail in, that suit, and so much of the judgment a6
~f f i r~ns the decree of the court below must be itself
jwtions to the adoptioi~
were well found^ j proba~ly they were not. The second part of the decree, which
e ~ & ~ l ~ s h e s t e right of the r e s p ~ n d e ~ t ~ and in effect directs him to bs put into
possession of the ~ e ~ ~ n d a r y , cannot, in the judgment d their ~ r d s h i p s , be sup-
ported. It was cont~nded, that the appel~ant had no fntesest in tb t part of the
decision, and could not be heard to complain of it; but in truth he had an interest,
at least it i s not clear that he had nut. If quired no right to the pussession,
s u ~ s e ~ u e n t to that rig s plaint* he could, p e r h ~ ~ s } have
had no ground to c n ~ ~ t i v ~ n g his cXaim, affirm^
that of another. But as he certainly aquired a possessi~1~ o€ Borne sort by ~ ~ w f u ~
a u ~ h o r i t ~ , if the collector’s statement, in evidence in &lie cause, be correct, by a
grant from the Executive Government after the Ranee’s death, that, title should not
have been disturbed by the dwree of the Sudder Court establishing the right of
a n o t ~ e r ~ whu was not for this purpose a party tu the c a ~ ~ e , but the appellant shou~d
have been &lio~ved to retain p ~ s ~ t i ~ o n 8s far as that court was concerned, and the
~ ~ e c u t i v e G o v e r ~ e n t , which gave the title, should ham been left free to alIaw it
to ~ o n t ~ n u e , or to be taken away, as i t though^ fit. That title was not given upon
the f ~ ~ n g of any p r ~ e d i n ~ dew- which was reversed ; it probably was b ~ t o w e ~
because the appellant wati supposed by the Government to be the adopted heir ; and
the l a ~ g u a ~ e of the collector’s report was in favour of that supposi t~o~ : it may pro-
bably have [2%] been because the ze~indary wa8 deemed a b~~~ eacam, and the
~ p p e l ~ ~ t was thou~ht a fit person to receive the grantb In the former case, it was
fit for the ~ o v e r ~ ~ ~ e n t to rectify the m i ~ a k e , by withdraw~ng the grant after the
c o ~ ~ ~ r m a t ~ o ~ of the decree of the Provincial Court, and g r ~ n t ~ n ~ to whom it pleased ;
in the latter, the appe~l&nt oughts to have been p % r ~ i t t ~ o c o n t ~ n ~ e in p o ~ s ~ s i ~ i ~ ~
subject to be dispossessed by any one showing a title not barred by lapse of time ;
but the Court of Sudder Dewannee Adawlut had no right to determine the questiou
of title of %I third person, for it was not the quest~on in the cause at all; and that
part of their decree which has this effect their ~ r ~ s h ~ p s will r e c o ~ ~ e n d t o His
~ a ~ e s t y to reverse ; and after that reversal, the ~ x e c u t i v ~ G o v e ~ ~ e n t will deal
with the possess~on as i t thinks fit.
[On point as to ~ u t h ~ r ~ t y for a d o p t ~ o ~ s see ~ ~ ~ 0 ~ ~ ~ 9 P~~~ Silzgh v. f l o w O d e 9
Singfa, 1869, 12 Moo. Ind. App. 350; ~ ~ ~ ~ e ~ t ~ r of ~~~~~ v. ~ o u € o o ~ a ~ ~ ~ ~ a
~ a € h ~ ~ a ~ ~ ~ , 1868, 12 Edoo. Ind. App. 440 ; ~~~~ ~ e ~ ~ a ~ ~ ~ kat^ ~~r ~~~~
Bow v. ~ e ~ ~ u ~ a ~a~ ~a ~~~~ ~ a ~ ~ a ~ ~ ~ , 1876, L.R. 4 Ind. App. 1; Lala
~ a ~ b ~ ~ ~ Atrl v, ~~~~} 188Ts 14 Cah, 402, 415; Stri ~~~~~ ~ u ~ ~ ~ u k ~ ~ a ~ n ~ a v,
GoL‘lectop of G o ~ a ~ ~ r ~ ~ ~r~~ (1899), L.B. 26 Ind, App. 107 ; ~ ~ a g w a ~ ~ i e ~ ~ 6
v. Bhagwan Sieglt (1898-99), i6. 153.1
It i s unnecess~ry to determine whether the
The decree must be affirmed in part, w~thout costs.
465