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