Rungama (Widow), for... v. Atchama (Widow), Ram...

REPORTS OF CASES heard and determined

by the Judicial Committee and the Lords

of the Privy Council, on *Appeal from the

Supreme and Sudder Dewanny Courts in

the East Indies, 1846-50. By EDBIUND F.

MOOSE, Barrister-at-Law. Vol. IV.

RUNGAMA (Widow), for herself and on behalf of LUTCHMEPUTTY NAID00,-

Appellant; ATCHAMA (Widow), RAMANADHA BABOO, and PUTTOORY

CALY DOSS,--Respondents; ATCHAMA (Widow),--AppelZaizt; RAM-

ANADHA BABOO,--Reqmnde&* [June 16, 17, 18, 19, 30, July 1, 2, 3,

18461.

O n Appeal f rom the Sudder Dewantay Cowrt at Madras.

Review of the Hindoo Law, relating to the validity of a second adoption, by a

Hindoo, during the lifetime of the first adopted son [4 Moo. Ind. App. 93

e t seq.].

V., a Zemindar, in the Northern Circars at Madras, of the Soodra caste, being

childless, adopted, with the consent of his wife, a son, J. At the time of

this adoption, he executed a deed with the natural father of J., by which

he undertook to make him heir to his Zemindary and wealth. V. subse-

quently married a second wife, and during the lifetime of his adopted son,

J., adopted a 8econd son, R. Both these adopted sons lived in V.’s house,

who, while they were minors, made a division of his ancestral and other

estate, between them, in certain proportions. J., when he came of age,

entered into possession of his share: but R., being a minor, V. managed his

share for him, and died during his minority. At V.’s death, J. claimed the

right of succeseion to the whole of V.’s estate and property, insisting, that V.

was precluded from alienating any portion of the estate, to his, the first

adopted son’s, prejudice; and that the adoption of R. during his lifetime,

was illegal and void. The Sudder Dewanny Adawlut a t Madras decided that

the second adoption was valid. Held, upon appeal, by the Judicial Committee

of the Privy Council, reversing that decree:-

First . That, according t o the Hindoo Law, a second adoption of a son, the

first adopted son being alive, and retaining the character of a son, was an

illegal and void act [4 Moo. Ind. App. 971.

Secondly. That J.’s acquiescence in the division, after he came of age, did

not preclude his right to recover the ancestral estates, as V. had no power

* Present : Members of the Judicial Committee,-The Lord President (the Duke

3f Bu::cleuch), Lord Langdale, thb Right Hon. Dr. Lushington, and the Right Hon.

T. Pemberton Leigh.

Privy Councillors,-Assessors,-Sir E. H. East, Bart., and Sir E. Ryan, Ent.

600

~ ~- ___

R U ~ ~ ~ ~ ~ ~ ~ v. ~ T H A M A - ~ T ~ ~ A ~ A v, R. BABOO [I8461 IV MOORE IND. APP., a

to alienate any portion of the ancestral estate to J.’s prejudice [d NOO. Ind.

App. 1031. But

~~~~~~~. That (upoi~ the principle that a party cannot afKrni and disaffirm

the same transaction) effect must be given to the ~ n t e n t ~ o r ~ s of V., SO f a r

as V. had power of disposing of his property, by an act, inter vivos; and in

which J. had acquiesced; and that as J. took the whole of the ancestral

property of V., he niust give up for the benefit of R. that part of V,’s other

property, included in his share in the division, and to give effect to which

his consent was not necessary [4 Moo. Ind. App. 1031.

Among the Soodras, a childless Hindoo may adopt a son from a gotrum different

from his own.

The consent of a wife to the adoption, of a son, by her husband, a childless

Hindoo, is not essential to the validity of the adoption. Adoption i s the

act of the husband alone ; a~thougli the wife may join in it,

Upon a disputed question of adoption, the Provincial Court, and the Sudder

Court, on appeal, held that the evidence was not sufficient to establish

the fact of adoption. Such decision reversed by the Judicial Com-

mittee.

Tbere aere two Appeals in this case, against a Decree of the Sudder Dewanny

Adawlut a t Madras, [2] made in three separate suits, instituted in the Provincial

Court of the Northern Division of Xadras, to determine the right of succession to

the estates of the late Raja Vassareddy Vencatadry Naidoo, the hereditary proprietor

of large Zemindary property, situate in the zillahs of Guntoor, Masulipatam, and

Rajamundry, in the Northern Division of the Presidency of Madras. The first suit

was instituted by the Respondent, Ramanadha, against Jaganadha, the adopted

son of ths late ~?encatadry, claini~ng a part 131 of the Vassareddy estates, first, as the

second adopted son of Vencatadry; and, secondly, by virtue of a settlement made

by Vencatadry, in his lifetime, dividing his estates between Jaganadha and Rama-

nadha, the entirety of which had notwithstanding been taken possession of by

Jaganadha, a t Vencatadry’s death. The second suit was instituted by Atchama, the

Appellant in the second Appeal, against Ramanadha, claiming succession to TTen-

catadry’s estates, as the senior widow of Jaganadha (who died pending the litigation

between him and Ramanadha, without issue by either of his wives, Atchama or

Rungama) ; and secondly, under a Will alleged to have been made in her favour by

Jaganadha. The third suit was brought by the Appellant, Rungama, the junior

widow of Jaganadha, for herself, and on behalf of Lutchmeputty, as his guardian and

adoptive mother, against Atchama, Ramanadha, and one Puttoory Caly Doss, claim-

ing for Lutchmeputty, as the adopted son, and testamentary heir of Jaganadha,

the whole of the estates of Vencatadry and Jaganadha.

The facts which gave rise to these suits were as follow:--

On the 2nd of April 1798, Raja Vassareddy Vencatadry Naidoo, having no

issue of his body, with the concurrence of his wife, adopted Jaganadha as his son.

The fact of this adoption was notified to the Collector of Guntoor, on the same

day.

A t the time of the adoption, Vencatadrp entered into an agreement, or contract

of adoption, with Chund~-aniooly Naidoo, the natural father of Jaganadha. This

agreement was contained in two instruments. The first, dated the 7th of April 1798,

executed by Vencatadry, and addressed to Chundramooly, after re-[&J-citing that the

ceremony of adoption had been performed, declared the effect of it, in the follow-

ing words:-“Therefore, be it believed, that I have executed this, (my tutelar deity

bearing witness,) that Jaganadha Naidoo is hukdar or heir to my Zemindary,

mirasy, to my wealth and debts ; and that I have it not in my power, on any account

whatever, to make over (the same) to any other person besides him (Jaganadha

Naidoo).” The other instrument, dated the 16th of April 1798, executed by

Chundrai~ooly, and addressed to Vencatadry, after stating the assent of the natural

parents of Jaganadha, proceeded thus :-‘‘ Whereupon, you having received him iu.

adoption, by performing the whole ceremonies of Datta-Homam, Nania-carana, etc.,

conferring upon him your estate and debts, as well as the right of your Zemindary,

executing a paper to my name, proniising that no other, except himself, shall have

601

Tv XOORE IND. APP., (I R ~ ~ ~ A ~ A ‘U. ATCHAMA-

possession of the above, and sending the said paper to me, and desiring to obtain

a document from me also, I have written and tendered this agreement, which is to

assure you that the said boy is yours, and that he has nothing to do with ine any

more.”

On the 11th of May 1803, ~Tencatadi-y caused the ceremonies of marriage to be

performed, between Jaganadha, and Atchama, and Rungama, all of them being then

children ; Atchama being two or three years older than Rungania. These ceremonies

were performed simultaneously.

After the lapse of some years, and in the month of May 1807, Trericatadry

married a second wife. Shortly after this second marriage, Vencatadry, being

desirous of adopting the Respondent, Ranianadha, consulted the learned men

attached to his samastanum, who informed [5’J him, that such adoption was illegaI,

and could not be made, expressing their opinion in the following form : -“ You

have already adopted Jaganadha, as your son, by performing the necessary cere-

monies, and made hini heir, both to the real and personal estate acquired by your

~orefa th~rs , and to your own acqu~sition. J a g a n a d ~ a has thereby been invested with

authority, either to object to your making over the immoveable property, acquired

bp your ancestors, or to acquiesce in the alienation of your own property. Tau are

already the father of a son, and you should not, therefore, make a second adoption.”

~ o t w i t l ~ s t a n d i ~ ~ g this opinion, Vencatadry proceeded to adopt R a ~ n a i ~ ~ d h a , as

his son, and took him to live with him under the same roof, where he continued till

Vencatadry’s death.

Raja Vassareddy Vencatadry made three successive apportionments, or parti-

tions, of his property, to take effect during his life, One of these apportionments

was made in the year 1812, whereby he divided his property into four shares, re-

taining one share in his own possession, and devoting the income of another to

charitable purposes j the two r e i ~ a i n i n ~ shares being divided h e t ~ e e n Jaganadha

and Raniai~adha : Jaganadha being put into possession of the share, called Chattoor-

niooka-Patnam Vahi, and Ramanadha being put into possession of the share, called

~T~nima-~ahes-wara Vahi. To render this disposition of the property final and

secure, SO far as it was possible for him to do so, he caused i~struments to be exe-

cuted by Jaganadha and Ramanadha in 1812 and 1814, when they were both

minors, in which they Ivutually ack~ow~edged the arrangement, and promised to

acquiesce in it. This arti it ion of the property con-[6~-t~nued throug~iout the re

inainder of the minority of Jaganadha, and was in existence when he came of age

in the early part of 1815. In February 1816, another apportionment was made,

whereby Vencatadry retained in his own hands the portion called the Dhurnia Vahi,

(cons~sting of 98 villages and a tank,) to be appropriated to charitable purposes, and

divided the remaining property, formerly constituting three shares, into two

divisions, still called ~ h a t t ~ o r - ~ ~ o o k a - ~ a t i i a n i Vahi, and the V o m ~ a - ~ ~ a ~ ~ e s w a r a

Tahi. These two divisions were assigned by lot, which had the effect of clianging

the shares, as formerly allotted, and Jaganadha was put in possession of the Vonuna-

inaheswara, consisting of 252 villages, and Ramanadha into that of the Chattoor-

niooka-Patna~, consisting of 201 villages. A third apportionment, extending to the

residue not previously divided, was made in July 1816, when Vencatadry divided

the Dhurma. Vahi into two shares, annexing one share, consisting of 62 villages, to

~*om~a-niaheswara, the portion which had been last allotted te Jaganadha J and the

other, consisting of 36 villages and a tank; to Chattoor-~ooka Patnam, the division

allotted to Ramanadha. From that time, it did not appear that Vencatadry in any

way interfered with the Vomma-makeswara division, which he had assigned to

Jaganadha. Over Chattoor-mooka-Patnam, which was in the possession of Raina-

nadha, who was still a minor, Vencatadry exercised the absolute power of control and

niai~agement, up to the time of his death.

In consequence of these several allotments, it appeared that the property which

was in the possession or management of Jaganadha and R a ~ i a n a d ~ ~ a was as

follows :-In the possession of J a g a n a d ~ ~ a ; 121 villages in Guntoor, 174 villages in

Masulipatam, 19 viG[’?]-lages in Rajamundry. In the possession of Ratnanadha j

212 villages in Guntoor, 6 kinkas, or islands, in ~ a s u l ~ p a t a l ~ i , 19 villages in

Ra~amundry.

In the year 1815, in the lifetime of Vencatadry, the revenue payable to Govern-

602

ATCEAIMA 'U. ~ ~ M A ~ A ~ ~ A BAEPOO [I 8461 I V WOORE IBTD. APP., 8

nient, in respect of the Zeniindary property, fell considerably into arrear ; and

sequestrations, extending over a large portion of the property, were issued in their

several Zillahs, by the Collectors of Guntoor and Ra~amundry. In c o n s ~ ~ i e n c e of

these sequestrations, 81 villages in Guntoor, and 19 villages in ~ a j a m u ~ ~ a r ~ , we e

taken out of the possession of Jaganadha; and 127 villages in Guntoor, and 19

villages in Rajamundry, out of the possession of Ramanadha.

In this state the property remained a t the death of Vencatadry, which took

place on the 17th of August 1816. Upon this event, Jaganadhit submitted a question

to the Pundits, attached to his samastanum, with regard to the wish of Ramanadha,

to join in the funeral ceremonies. In answer to this question, the Pundits all con-

curred in stating their opinion, that as a second adoption would have been unlawful,

ltainanadha had no right to assist in the performance of the funeral ceremonies of

Vencatadry.

Jaganadha thereupon asserted his exclusive title to the Zemindary property

of the late Vencatadry, and addressed arzis to the Collectors of Guntoor and Raja-

mundry, offering to pay the whole amount of the arrears, in respect of which the

village8 had been attached.

On the 6th of October 1816, ~ a g a n a d ~ i a received an i n t ~ ~ ~ ~ a ~ i o i ~ from the Acting

Collector of Guntoor, that Vencatadry was considered to have '' divided his district

into equal shares, between his two sons, Jaganadha and Ramanadha, and that, at the

time of his death, 181 Ramanadha was i s the possession of the Cbatto~r-~nooka-

Patnam Vahi." Jaganadha, on the receiptctf this intimation, tendered the amount of

the arrears. He d S 0 represented to the Acting Collector, that inasmuch as it was

impossible for him to institute any legal proceedings against Ramanadha (who was

a minor), to determine any adverse claim on his part, unless, by the interposition

of the Court of Wards, he was placed in a situation to defend the suit ; he, Jaganadha,

should of necessity be coni~elled to proceed formally against the Collector, in the

event of his refusal to deliver up the whole estate, after the tender of the full amount

of the arrears due thereon. To this the Collector replied, that it would be proper

that a suit should be forthwith instituted, by Jaganadha, against the Collector

alone.

$Thereupon Jaganad~a , on the 8th of November 1816, filed his plaint in the

Provincial Court of the Northern Division, against the tben Acting Collector of

Guntoor, to compel the restitution of the villages in that Zillah, which had been

sequestered by the government^ The Collector, by his answer, admitted that Jaga-

nadha had tendered the amount of the arrears, but alleged, as his reason for not

delivering up possession of the villages, held by him under attachment, that Rama-

nadha was the proper person to inherit the same.

On the 10th of May 1817, the cause was heard by the Provincial Court, when

the Judges (Mr. Nathaniel Wehb, First Judge, and Mr. P. Cherry, Second Judge,)

were of opinion, that the real question in the case was the right of succession to the

vahee or district in question, part of the Zemindary of the late Vencatadry ; and

there being an informality in the petition of plaint, it having omitted to set out the

Iiames of the villages [9] comprised in such district,.pursuant to section i i i . , Regula-

tion III., A.D. 1802, the Court nonsuited the Plaintiff. J a ~ a i ~ a d ~ ~ a presented a

petition, praying €or a revie.cr of the above Judgment. The Provir~cial Court, in the

first instance, refused it ; but upon a second petition, to the same purport, they sub-

mitted the petition to the Sudder Adawlut. The Sudder Court, having taken the

same into consideration, on the 13th September 1817 authorized the Provincial

Court to review their JudgmeIit. The Provincial Court thereupon proceeded to

review their Judgment, and on the 15th of November 1817 passed a decree, whereby

they declared the previous deciaioti of the 10th of May 1817 iiull and void; and after

observing, that no transfer or registry, in the mode provided by the Regulations,

Bad been made during the lifetime of Vencatadry, and considering that the claim

then before them could not affect, or have any reference whatever to, the ultimate

decision of the legal right of succession, they confined the question solely to whether

the Acting Collector of Guntoor was justified in refusing to deliver up the villages

to Jaganadha, on his paying all arrears, and expressed their opinion, that the

interests of all parties mould have been best consulted by receiving the arrears from

603

3 a ~ a ~ ~ a d h a , and by w~thdrawing the attachment and delivering the villages to him,

and that there was no legal right to w i t ~ ~ h o ~ d them.

To this decree Mr. Travers, the Third Judge of the Court, d~ssented, and on the

27th of February 1818 the Col~ector appealed to the Sudder Adaw~ut, contending.

that ~ a g a n a d l ~ a h d not produced before him such evidence of his right, as could have

justified him, the Collector, in giving, on his own author~ty, possess~o~ to Jaganadha.

on payment of the balance due-

["O] Shortly before the pregentation of the Collector's petition of appeal, some

sums of money were paid into the Provincial Court, in satisfaction of certain instal-

ments, under a Decree, obtained by the late ~ e n c a t a d r ~ ~ to the whole of which Jaga-

nsdha laid claim, as the sole heir to the late ~ e n c a t a d r ~ , and am an ad ha claimed

one-half, as co-heir, Upon this, the Provincial Court referred to the Sudder Adawlut,

for ~nstruct~ons; the Sudder Court stated, that, in their opinion, it involved the

qriestion of who wag the heir of the deceased ~encatadry, and whether there wss

more than one ; that they could not solve these questions, which must be determined

by the Provincial Court, on evidence produced before them. And the Sudder

A d a ~ l u t recorded their opinion, for the guidance of the Provincial Court, that the

most regular course to be pursued in the case under considera~ion~ and in similar

cases where, an original party in a suit being dead, a Court should have any sum

CO pay over to h i s repr~sentatives, would be to give sufficient public notice that such

sum i s so payable, and would be paid over, after a stated period, to the person OX

pcmons who should bring due proof of their right to receive the same.

In pursuance of this opinion, the Provincial Court, on the 18th of June 1818,

~ ) ~ o p ~ u n d e d the follow~ng ~uestions, to the Pundits of the ~ o r t ~ e r n , Centre, and

Southern, P ~ o v ~ n c ~ a l Courts : -

1.-" Is a pcrson, having, c o n ~ o ~ ~ t ~ ~ with his wife, adopted a son, and thereafter

being displeased with her, and marry in^ a second wife, a~thorised by Hindoo law,

onj jointly with her (the second wife), to adopt a son? "

Z.-*' A. person adopt~ng a son, having, for any rea-[ll]-son, adopted a second

son, i s the former, or the latter, heir to the estate of the person adopt i~g , or are

Loth sons entitled to share the same! "

3.--*i If both have a right to share, are they entitled to receive equal shares, or

different proportions, of t

~e~pectively ? ''

4.-" Ifas a person who has acqu~red a large property, power to divide the whole,

or any part of the same, equally to both of his adopted sons during h i s lifetime, and

are divisions so made by the father, of legal force after his death 1 ?'

6.-" If either the first or second of the adopted 8ons act c o n t ~ a r ~ to the will of

the father ~ n o w i n ~ l y and intentio~a~Iy, will he, notwithstanding7 have a right to

the whole, or to a pari$ of the estate of his father 2 "

To these questions, the f o ~ ~ o w ~ n ~ answers were ~ e ~ ~ v e r e d , by 'CT. Narain Sastri,

the Windoo Law-officer of the Provincial Court of Appeal, for the Horthern Division.

First :-" The man who has married a wife, and who, for want of a leg~timate son,

adopted a son, and who some time afterwards married a second wife, has authority

to adopt a second son, in the event of his e n t e r t a ~ n ~ n ~ a wish to augment his off-

spring. The man who wishes to augm~nt his o ~ s p r ~ n ~ is by law authorised to adopt

a son, t ~ o u ~ h he has a legitimate son. On the same principle, a man may adopt a

second son given, though he has already a son given, if he is desirous to get numerou~

off spring.

' I In Lohita Smriti, and other works, prohibitions are contained, that if a inan

has a 8on given, he should not adopt a second son given ; and, further, it i s ordained

that no adoption of a son given can be made while he [I21 has a son of $he body in

existence : but it i s stated in the works to the following purport :-that since tile son

delivers his father from hell, he is, therefore, called Putra; that the man who

imagines, that i t i s enough for him, if his d e i i ~ e r a n c ~ from hell can be e~ec ted by

the means of a single son, has no ~usiness to get a second son ; that the man who

wishes to have a nume~ous offspring, in order that they may perform the ceremonies

called ~ y a v r a ~ a ~ a t i * besides delivering him from hell, may procure matly sons ;

and that he who wishes not to hare his offspring thus increased, i s proh~bited from

procuring mother son.

604

ATCHAMA ‘U. RAMANADHA BABOO Cl8461 IV BaOORE IND. APP., IS

In the book, Vivada B~angarnava, in the 4th s ~ t i o n . ~ a n c h a and Lohita:

‘ The perpetual support of a consecrated fire, and the like, the Scriptures and sacri-

fices, rewarded with ample gratuities, do not procure the sixteenth part of the benefit

arising from the birth of an eldest son.’

‘‘ Heaven is attained by him who is celebrated as the father of a son, and of a

grandson ; and whose many children and himself, while living, had completed the

study of Scripture and the performance of sacrifice.

‘‘ With whom Scripture and sacrifice is not incomplete, whose study of the Veda,

and performance of sacrifice, fail not. It consequently appears to be a benefit

arising from numerous issue, that many sons, and the father himself, fail iiot in the

study of Scriptures and performance of sacrifice. Many sons are to be desired,

that some one of them may travel to Gaya. Hence sons of various descriptions may

be adopted by one who desires numerous offspring.

.‘ The prohibition, that while a son is in existence, there is no need of a second

soil, i s stated in the 4th section of Vivada ~hangarnava, as follows:--‘ But [13]

here the intention of the precept is to forbid adoption, then, only when there is n o

motive for it; for the benefit desired, namely, deliverance from hell, is obtained

without adopting a son given, and through him, therefore, that purpose is not

effected ; but one who desires numerous issue for other purposes, besides deliverance

from hell, may adopt a son given, and othcrs, although he have one legally begotten.

Sridhara Swami and others have said as much. The Retnacara and Paryate es-

press, that a son given, and others, should not be adopted, if there be a brother’s

son; from which it must be understood, that the prohibition concerns one who merely

desires male issue for the sake of deliverance from hell. This justifies the fact

recorded in the Bharata and other works, that Pandu having other male issue, ac-

cepted of Bhema, Arjuna, and other sons of his wife, and he did so although he had

nephews,” By this work it is prescribed that many sons may be procured. It should

iiot be objected that, by the above work, the procuring of the sons of different

descriptions, viz., sons of body and sons given, etc., is alone admitted, and not the

procuring of many sons of one and the same class, such as sons given, etc. The

adoption already made of many sons of the one and the same class, such as Bhema,

Arjuna, etc., should be considered as sufficient authority.”

Second.--“ If a man, after adopting a son given, adopt a second son given, under

any pIea whatever, both the sons given will he brothers agreeably to their sei~~ori ty

and juniority, in the same manner as the natura1 sons are; consequently the said

two sons given, are entitled to inherit the estate of the adoptive father in equal

shares, according to the rule called ‘ Samousead Asroo-[14]-tatvaloo,’ whieh directs

equality where no other proportion is specified.”

Third.--“ As the two sons given in adoption Etre equally entitIed to the estate of

their father, so, if a father divide the estate, they should abide by the divisions estab-

Xished by him, though he has made either equal or unequal divisions, conformably to

the rules laid down in the Jeevadum Bhaga Prakarnum, or chapter of dirisions,

made by a father in his lifetime. The law regarding this matter is inserted in the

answer to the fourth question.”

Fourth,--“ He that has acquired abundance of wealth may, during his lifetime,

divide his estate between his sons as he pleases, either in equal or unequal shares,

conformably to the rules prescribed by law; and his sons ought to abide by the

division made by him : or should they throw obstacles without so acting, they shalI

be liable to ~unishment; which circumstance is stated in the chapter on division

made by a father in his lifetime, contained in the Uajiiyawalcya Smriti, etc., Works.

-Yajnyawalcya : ‘ If the father make a partition among his sons, he may give, at

his pleasure, more to some and less to others ; or give the first-born the portion of an

eldest son, or divide the estate among all of them in equal shares.’ Nareda:

‘ Vhethcr the father distribute equal shares to his sons, or give more wealth to some

and less to others, according to circun~stances, such shall be their shares ; for the

father is lord of all.’ Vrihaspati: ‘Sons to whom equal, less, or greater shares

have been allotted by their father, should maintain such dist~ibution ; otherwise

they shall be chastised.’

‘

estate, among his son8 as he [lri] pleases ; and that the sons, if they don’t attend

608

thereto, are liable to punish~ent. ~ a d h a y a n a : ' ~ e n u diEtr~buted the heritage to

sons.'

(' Let equal shares be given to all without d~stinction.

'' By this very same law, it appears that equal shares abne are a l l o t ~ d to only

the fat~ier and all the sons, in consequence of a rule, wh~ch directs equality, where

no other proportion is specified.

By the foregoing work i t i s o r d a ~ ~ e d that the d ~ s t ~ ~ b u ~ i o n to so 8 in equal

shares alone is essential,"

Fifth-" If either the first or the second adopted son resist the lawful orders

of his father, and be in enmity with him, he will, in khat cam, be cons~dered as

rebel~~ous to his father. It i s o ~ d a ~ n e d by the code of law, that he is not entitled to

have a share in the father's estate. The test8 r e E ~ c t i n ~ this, are as follow.-

~ a j n ~ a w a l c ~ a : < A professed enemy to the father, a degraded man, one deprived of

virility, one lame, a madman, an idiot, one born blind, and he who i s afflicted by

an in~urable disease, must be m ~ ~ i i ~ i n ~ w ~ t ~ o u tany allotment of shares.' Nareda :

' A professed enemy to his own father, a degraded man, one d e ~ r ~ v e d of virility,

and a man formally expelled by his kinsman, shall not inherit though begotten by

the deceased, much less if begotten on his wife by a ~ ~ ~ s m a n l e ~ a l ~ y appointed.'

la the a ~ o v e ~ e n t ~ o i ~ e d tex-ts it. is o r d a i ~ e d that the ~ r o f e s ~ d e n e ~ ~ to his own fatl~er

shall have no share, though he Be the son of the body."

The answer delivered by Ausoor~ Alaja ~ i n g a r a Charloo, the P u n d ~ t of the

Provincial Court, in the Centre Division, was as follows :-

First.--" Should a person, who, in the first instance, adopted a son, in conjunc-

tion with his first wife, and who afterwards married a ~econd wife, wi& to

adopt another son in con~unction with his second wife, he may adopt a second son

given accord~n~ly. This c~rcumstance i s specified in a chapter on the diEtr~bution

made by a father in his lifetime, and also in a section relative to the son given, which

are co~i ta~ned in ~ a g a n a t ~ a Tercapanc~Ian~~um, ~ m r ~ t i C ~ a n d r i ~ a , etc., ~ a w - ~ o k ~ ,

as well as ~ t ikasam, Bharatum, etc., works. But one who desires n u ~ e r o u s issue

for other purposes, besides deliverance from hell, may adopt a son given, and others,

a l thoug~~ lie have a son legally begotten. ~ r ~ d h a r ~ , Swami, and others, have said

as above.

" What benefits arise from nu erous issue are as fofbw :-

I ( Many sons are to be desired,* that some one of them may travel to Gaya, or

Hence sons of various descrip~ions may be adopted by one who desires nurner-

perform sacr~fice called Aswameda, or co~secrate a black bull a t the funeral.

ous offspring.

~ ~ i o u ~ ~ ~ he hes a son of his body to deliver him from hell.

raja, who was acquajnted with tlie legal prohibit~on, obtained Bhema and Arjuna,

and other sons of his Fife, from a desire of having a %on endowed with g ~ r e n ~ t h , and

one skilled in jurisprudence and P h ~ I ~ o p h y , though he had a son of his wife called

~ ~ a r K ~ a r a j a .

" In like ~ a n n e r , as above, many sons given may be adopted, with a view that

one of them. at Ieast may perform the c e r e ~ o n y cafIed Gaya addha ha, etc., accord in^

to the text, which expresses, ' Many sons are to be desired.'

1173 Second.--" The two sons given in adoption, being heirs to the estate of their

adoptive fa~her, have a u ~ o r ~ t y to divide the estate of their adoptive father between

~ h e ~ $ e l ~ e $ , irt the same m a n n ~ r as the two ~ ~ ~ i ~ ~ ~ a ~ e sons of his own body have a

right t o their father's estate, and divide it between them.

" The law respecting the above is as fo110ws :-

" An a r ~ u ~ e n t of law which is ~ t a b ~ i s h e d in one cause is a p p l ~ ~ a b l e in another,

unless a special o b j e c t ~ o ~ exists.

'' Menu : ' ~ ~ s t r i b ~ t e d th ~ e r i t a ~ to sons.' A ~ a ~ a m b a : ' The father, in bis

~~fe t ime , ought to distr~bute the property among his sons in equal shares.' V ~ s h ~ u :

' If a father make a partition between himself and his sons, he may give or reserve

at his pleasure any part of his own acqu~red wealth.' Ya,jnyawalc~a : ' If tile

father made a partition am on^ his sons, he may give a t his pleasure more some

and less to others, or give the first-horn the port~on of an eldest son, or divide the

estate among all of them in equal shares.'

606

" The meaning of the foregoing is, thnt any person may adopt sono %;\re

Xoreover and^

ATCHAMA 'U. RAMANADHA BABOO [18 461 IV HOORE IND. UP., 18

" According to the opinion of these texts, as equal shares should be allotted, the

same rule which was preseribed for the sons of the body, should be established for

the sons given."

Third.-" These two son8 given, are entitled to inherit their adoptive father's

estate, in equal shares, and not in unequal shares; consequent~y they are to divide

the whole estate of their adoptive father in equal shares between them."

Fourth.-"He who acquired much wealth has authority to divide either the

whole or a part of his estate between his two sons given, as he pleases; consequently

the two sons given, must, of course, conform [I81 thereto after the death of their

father, and they must not deviate therefrom.

" The law for the foregoing is as follows:-Nareda: ' Whether the €ather dis-

tributes equal shares to his sons, or gives more wealth to some and less to others,

according to circumstances, such shall be their shares, for the father is lord of all.'

Yajnyawalcya : ' The distribution made by the father is declared binding on sons

among whom an unequal division has been made." Vrihaspati : ' Sons to whom equal,

less, or greater shares, have been allotted by the father, should maintain such dis-

tribution ; otherwise they shall be chastised.'

'' The meaning of the above text is, tha+ the sons ought to abide by the divijions

ordained by their father, though they be equal, less, or greater shares; and that those

who act contrary thereto deserve to be punislied.

" They are therefore to act according to the rule established by their father."

Fifth.-" No act should be performed contrary to the opinion, of the father;

consequently, the sons are the masters of the estate of their own shares, allotted to

them respectively by their father; and they, therefore, should not wish for a larger

or less portion than the above.

" The law for the above is as follows:--' What can be done with that cow which

neither affords milk nor becomes pregnant? Of what use is that son who is neither

learned nor morally good7

" ' A son who has no sacred knowledge, nor courage, nor industry, nor devotion,

nor liberality, and who observes not immemorial good customs, must be considered

as similar to urine and ordure.' More-[l9]-over, there is a verse by Poorvoo to

Yayauty, in their Discourse, in chap. xviii., book ir., of Sri Bhagavata.

He who complies with

the direction given to him, is of a middle class. He who neglects the same, is a

low man.

" As this is the meaning of the verse, he ought to act according to the rule estab-

lished by the father, and not deviate therefrom. To act according to the rule

established by the father will prove prosperous to both.

'' Therefore the two sons given, ought to act according to the determination of

their father."

The answer delivered by Sashadri Sastri, the Pundit of the Provincial Court of

the Southern Division, was as follows :-

First.-"If a man, who having in the first instance adopted a boy, as a so11

given, in conjunction with his wife, should wish to adopt another boy, as a son given,

with or without any reason, while the first adopted son is alive, he may do so,

" With respect to the adoption of these many sons given, it is ordained in the

work calIed Jagannatha Tercapanchananum, after fuIly considering, and faith~ully

quoting, the texts of the sages, Sancha, Lichita, Paithinasi, etc., that if a man, while

either the legitimate son of his body, or son given, is alive, wish to adopt many sons,

he may adopt many sons given--consequently, the said person i s by Hindoo law

authorised to adopt another boy as a son given, in conjunction with his second wife."

Second.--" As he has, for some reason, already adopted a second son given, con-

formably to the Hindoo [20] law, the last son given should be considered as son, in the

same manner as the first son given. These two sons given, are, therefore, entitled

to divide the estate of their adoptive father between them. It is stated, under the

article of Jivadwibhaga and Ajivadurbhaga, in the chapter of divisions, in the

books called Jagannatha Tercapanchananum, Menu, Vijnyaneswara, etc., ' that

although there are many sons to a father, all those sons are entitled to divide the

estate of their father.' "

Third.-'* As the two sons have a right to divide between them the estate of their

" ' He who complies with the thought, is the best man.

He who disobeys it altogether, is similar to ordure.'

607

adoptive father, they are entitled to inherit the same in equal shares: as the

~ ~ e e s h a ~ ~ a b ~ ~ a g u m , or unequal share, and the vood~araw~bhabunl, or add~ t iona~ share,

are by law proh~bited, they are not entitIed to divide the estate in unequal shares.

TIle two sons, therefore, are each of them entitled to a half-share of their father’s

property. Thus it is ordained in the chapter of divisions in the books of Bindoo

law.”

Fourth.---‘f Ele who has acquired much wealth is authorised to divide, durillg his

lifetirne, eit.her the whole or a part of his estate, in equal shares, between his two

sons given. This i s stated in the chapter of divisions, in the books of the Dharma

~ a s ~ r u m . Divisions thus made by the father, con~ormably to the law. ought i t t

justice to be in force, after the death of the fatber.”

Fifth.-“If either of the two sons have acted contrary to the desire of their

father, either wilfully or deliberately-as the son who has thus acted must he

ons side red a pitru-dwasi, or enemy of his fat.her-he is declared in the article of

nedatra putra, or guilty son, in the chapter of divisions in the works of [Zl]

~Ti~nyaneswara and other law books, not entitlcd to a share.”

Fipon the receipt of the above opinions, the Provincial Court recorded the follow-

ing reso~ut~on :-

‘I The Court, ~ ~ e e t i n g , in the above opinions, with adequate ~ r o u n d ~ for recog-

nising ~ a ~ a n a d ~ ~ a , the second adopted SOIL of the late Vencatadry, as a claimant

to a moiety of the estate, left by that ~ e ~ i n d a r , the whole of which has been

clainied by the elder adopted son, Jaganadha,-It is resolved, that one-half of the

amount> of the above instalments shall be i m ~ e d i a t e ~ y paid to ~aganad~ka, upon his

passing his receipt for thasame, and that his pleader be directed to c o ~ ~ u n i c a t e

to him this resolution of the Court accordingly,”

~~aganadha declined to receive the moiety thus awarded to him, and, by a subae-

quent order, the whole of the monies in Court were directed to be applied in discharge

of a debt due from ~ c n c a t a d r ~ s estate.

On the 9th of September 1819, the Sudder Adawlut pronounced j u d g ~ ~ ~ e n t , i the

peal, which had been prese~ted to them by the Collector of ~un t5or , and thereby

declared, that the ColIector was justified in retaining possession of the 208 viIlages,

until he should receive legal autl~orjty for delivering them up, and reversed the

decision of the Provincial Court; and they adjudged Jaganadha to pay the costs in

both Courts: but they further decreed,( that, as Be had obtained ~ossessio~i of the

villages in ~ u e s t ~ o n , under the decree of the P r o ~ i n c i a ~ Court, he should c o n ~ ~ 3 i ~ i ~

in possession thereof, upon giving security to abide the issue of any suit which iniglit

be instituted by the other claimant, Ramanadha, to t ry the question of right to the

villages.

[223 In pursua~lce of this decree, ~aganadha, having given the required security,

continued in porssession of the villages, as well as of the rest of the estate of the late

~ T ~ n G a ~ a d ~ .

C h the 8th of November 1820, R a ~ n a n a ~ h a filed a plaint, in the Provincial Court

for the Northern Division, against ~aganadha, in which he stated the circumstances

of Eiis adoption; and after alleging that a legal and conclusive apportionment and

division of the Zemindary property in question had been made by the late

~Tencatadry, in his lifetime, whereby that part of the property: calfed chat to or^

~~iooka-Patna~n, had been allotted to him, ~ a m a n a d ~ a , solely ; and all title, clainx

or right of ~nter~erence there~i th , by Ja~anadha , had been thereby excluded ; aiid

after stating that, of the 205 villages sequestered by the Collector of ~uKl~oor , aitd

afterwards delivered up to Jaganadha, 127 villages belonged to the district Chattoor-

inooka-Patnam, and also stating that Jaganadha had dispossessed him of six lunkaa,

o r islands, which had been under his ~ n a n a g e ~ ~ e n t ; the plaint sought, the recovery

of the one hundred and t w e n t ~ ~ s e ~ ~ n t y villages under the G~ntoor Zillah, and si^

tunkas, or islands, under the ~ a ~ u l ~ p a t a m Zillah, with the profits, eh,, derivable

~ l~e re€ ron~ , a i~ loux~ t i~~g to Madras pagodas, 9?~,915. 6, 4$, then in the posses s i~~

of Ja~anadha .

Jaganad~a, in his answer, insisted on his title as the adopted son of the late

Yencatadry, and traversed R~manadha~s claim by virtue of the second adopt io~~,

~ ~ i s ~ s t i n g that the same, if made, was invalid by law. And he submitted that

f~an~anadha could take no share of the late Venca tad r~ ’~ estate, and that w‘flatever

608

niy paterna~ Zemi~idary, to all my property, real and personal, and to conduct the

suits pending in Courts, being instituted by and against me.”

The other document purported to he a note from Jaganadha to Atcharna, and

contained the f o l l o w i i ~ ~ passage :-“ ~ u n g a m a troubles me anuch to leave, by

writing, the talook, etc., to Chava ~ u t c h I n e p u t ~ , of another p t r u n ~ , whoin she,

~ u n g a m a , has been taking care of ; but I have not consented to it. Upon a reflect~o1~

of my illness, 3 think I shall not live many [26] days. Since she i s thus t ~ - o u ~ ) l i n ~

i i ie while I air) alive, she may, in c o n j u n c t ~ o ~ ~ with the servants, very likely forge

something hereafter, the seal being in her poasession. Therefore as soon as you

see this note you will come here, and take care of the talook and other estate, accord-

ing to my writing to you.”

On the 23rd of June 1825, the Sudder Bdawlut made an order on the f o r e ~ o i i ~ ~

petit~ons, which, after directing Atchama to institute a sui% against ~ a ~ n a i i a d h a ,

for the recovery of the entire estate of the late J a ~ a ~ ~ a d h a , proceeded as follows :-

‘‘ The Sudder Court do not consider that ~anianadha ought, in equity, to be pre-

judiced by the withdrawa~ of his Appeal from the decree of the ~rovincial Court,

which act appears to have been done under an erroneous impression of the legal

conseqLie~ices, resulting to him, from the death of the late Jaganadha, The Pro-

vincial Court will, therefore, with reference to the circumstances under which this

Appeal was ~ ~ i t l ~ d r a ~ n , consider the claim of ~ a n ~ a n a d h a , to a moiety of the estate

of the late Vencatadry, not to be finally adjudicated; but in d e t e r m ~ n i ~ ~ g tlie sui t

to be brought under the present instruct~ons of the Court, the Provincial Court -ill

confine their judgment to the new points which may be raised (proceeding on the

supposition that their former decision may be reversed). In the event of judgment

going against ~ a ~ a n a d h a , the case can, on Appeal, be brought in all its bearincs

before the Sudder Court, to whom, under the circumstances, it vi11 be conipetent

to read the record in the former Appeal, and make it a part of the latter. The Court

infer their conipetency 60 to proceed, from the fact, that the parties before thein

will, to all iutenta and purposes, be the same, inasmuch as Atcliama de-127j-rives

her title from her deceased hus~and, and would liave been concluded by any other

judgment n-hich might Lave been passed against him in tlie Appeal. If, on the

other hand, judgment should go in favour of ama an ad ha, the claim whirh formed

the ground of the suit will merge in such decision, and the revival of that question

be no longer necesssry.”

In pursuance of this order, Atchama, on the 15th of August 1825, filed her plaint

in the Provincial Court for the Northern Division, against ~ a m a n ~ d h a , daiining

the whole estate of Jaganadha as his senior widow, and sole heiress, he having no

issue male; and she further alleged that Jaganadha had caused a paper to he

written, dated the 1st of February 1825, whereby he directed that all h i s estate

should be inherited by her, being his real heiress and successor, both by law and the

usage of the country, and she claimed as such accordingly; and cited various

au~hor i t~es in support of her title, as sole successor to the eatire estate of Eirr

husband. She also charged Ramanadha, in conjunction with Runpama and others,

with having combined and fabr~cated the paper, which they ret tended was the Will

of the late Jaganadha, and submitted that such paper could not be admitted to proof,

i t not having been executed on stamped paper, as required by ~ e g u l a t i o ~ ~ XIII. of

1816.

Ramanadha, by his answer, did not dispute the fact of the Plaintiff having been,

by marriage, the eldest wife of the deceased Vencatadry; but he alleged, that the

Plaintiff did not conduct herself becomingly, and was in consequence forsaken by

her husband ; and he insisted, for the first time, that he was the undivided brother

of the deceased Jaganadha, and that as he had died without issue, he, the Defendant,

Imcame the sole heir [28] to his whole estate, and was also heir tb Vencatadry by

lineal descent ; he claimed, moreuver, to be entitled to the estate by virtue of the Will

in his favour, alleged to have been e.recnted by Jaganadha.

Atehama, by her reply, denied the allegations contained in the a ~ ~ s ~ ~ ~ , arid

insisted on her title as senior widow and heiress of the late ~ a ~ a n a d h a .

On the 12th of December 1825, the Court propounded the ~ol~owing ~ u e s ~ i o n to the

Rindoo law-officer attached to the Court :-

i‘ A ~ e ~ i ~ r ~ d a r of the fourth caste, called Rungapah, died, leaving much hereditary

610

~ ~ ~ ~ A ~ A 2t. ~ A ~ A ~ A ~ ~ ~ BABQO [18461 IV XOOEE XND. UP., 2s

property, but no isme, male or female. Be had adopted a son, called Venkiah,

who also died some years after his adoptive father, leaving the same hereditary

i?rop~?rty, but no issue, male or female. Be left, however, two widows, the senior

cbf whoni i s called Lutchm~ah; she now comes into Court, and claims ?he entire

estate, real and personal, of her late husband Venk~ah, asserting that she is his legal

heir, according to Bindoo law. Her claim 4s r e s i s ~ d by one, called ~ e d ~ a p a h , who

1s tfhe great grandson of ~ a g a ~ a , who was the grandfather of ~ u n ~ a p a h i e

(Reddapah) asserts that, there being no other or nearer niale relation than himself,

lit! i s the legal heir, according to Bindoo law. You are required to state which of

these two claimants, Lutchmiah or ~ ~ d a p a h , i s the legal heir to &e hereditary

property left by Yenkiah, supposing it to be true, thak there is no other or neaser

male relation than ~ d d a p a h ~

To this question the following“ answer was returned by the Pundit; ;--“ ~ c c o r d ~ n ~

to the Rindoo law, ~ u t ~ h m i a h , the eldest widow of the late ?Tenkiah, is, in the first

instance, legal heiress to both the fanded and personal estab, left by the said

Venkiah, who ~~~ was the adopted son of ~ u n ~ a p a ~ ~ , ~ e ~ i i n d a r ~ of the Soodra

caste. Regarding this, %he Dharma Sastrum is as follows : - ~ r ~ h a s p a t ~ says, ‘ d

wife is declared by the wise, to be half the body of her husband, equally sharing the

frui t of pure and impure acts. Of him wliose wife i s not deceased, half the body

survives. How should another take the propcrty while half the body of the owner

lives? ’ ~ajnyawalcya s a p , A wife, daughters, both parents, brothers, their sons,

kinsmen sprung from the same original stock, distinct kindred, a pupil, and a fellow-

student in theology. On failure of the first of these, the next i n order 8hares the

estate of the deceased.’ Eatyayana says, ‘ the childless widow, preserving inviolate

the bud of her lord, and strictly o~edient o her s p ~ r ~ % u ~ l parents, may frugally

enjoy the estate, until she die; after her, the legal heir shall take it.’ ”

The Court made its decree in this suit, on the 22nd of ember 1825, in wh i~1 i

they rejected the alleged Will relied upon by ~ a ~ n ~ n a d h a , both because it was upon

u n s t ~ p ~ d paper, and also because, if genuine, i t would have been, by the Niadoo

law, invalid j and the Court expressed its opinhn, that there appeared to have been

nothing in Atcha~a’s conduct which could bar her claim, as senior widow of Jaga-

nadha. Having read the answer given by the Pundit, the Court observed, that from

the texts there s ~ a t ~ d , as well as certain othera, it appeared &at the-wife was the

heiress, to the whoie of her h ~ s b a n d ~ s e tate, afer his demise, and that after her

the nearest cousin was heir to it. On the round, therefore, of the opinion of their

litv-o-ofticer, the Provincial Court decreed to the Plaintiff. as the legal heiress of her

late husband, possess-ion of the property in general, real and personal.

E301 From this deoree, Ramanadha appealed to the Sudder Adawlut of Madras.

On the 6th of ~ e ~ t e ~ b e r 1826, ~ungama , the junior widow of Jagar~adha, in-

stituted a su i t in the Provincial Court of the Northern Rivision, against Atchama,

~ ~ ~ ~ n a x i a d h a , and put to or^ Caly Doss, as the adoptive mother and guardian of one

~ a i ~ ~ c h ~ n e ~ u t t y Maidoo, as the adopted son of the late Ja~anadha , and on his behalf

claiming the whole of the property in question. In her plaint, she alleged that her

deceased husband, ~ a g a n a d ~ a , being c h ~ ~ d ~ e ~ s , and not likely, f rorn bodily ~ ~ i f i r ~ ~ t y ,

to have issue, in the month of April 1819 directed her to apply to one Chava Naidama,

a relation of Jaganadha, but not of the same ~ o t r u m , to know if he would give his

third son, ~ u t c h ~ e p ~ t t ~ , then an infant, in adoption to Jaganadha. That on the

26th of April, in the same year, ~ a ~ ~ a ~ a ~ d a ~ ~ signed an ~nstrument, giqing Iris

~ v n to ~ a ~ a n a d h a , who, on the same day, by an ~ n s t r u ~ e n t executed on his part,

aecep~ed the boy in adoption, with her, Runganta’s concurrence, (Atchama having left

lxr husband,) making him heir and succes8or to his estates : and that on the 18th of

August 1819, the further ceremonjes of adoption were performed in favottr

of Lutchrne~utty who w8s ~ r o ~ ~ h t up a t Amavarti, ( ~ ~ ~ ~ l ~ a d h a ’ ~ house,)

as his son and ~ c k n o w l e ~ g e ~ as such to the n e i g ~ ~ o u r i n g ZemirtdarR,

and to Mr. Charles hber t s , the then ~ o ~ ~ e c t o ~ of the Zillah of Nan-rtli-

gatam, That after Jaganadha’s death, ~ a ~ ~ n a d I i a had executed a deed,

called a karar-~amah, acknow~edging L u ~ h ~ e p u t t y , as such adopted son, and that

h e only held possession for him, as manager. That she, Rungama, was imposed

upon by ~ainanadha, and induced to execute papers, of the purport of which

she was ignorant. That Jaganadha made a Will in her favour, and that the Wills

relied upon by A ~ ~ a ~ a and ~ a ~ a n & d ~ a were forgeriea; and she charged Rams-

I

611

IV MOORE IND. APP., 32 ~ U N G A ~ A ‘U, ATCNAMA-

nadha with co~nbining and c o n f ~ e r a t i n g with Puttoory Caly Doss, the Dewan, 01

ticad manager, of the late Vencatadry, and Jaganadha, to suppress the fact of I&&-

~eput ty’s adoption, and otherwise inducing her to execute the instruments before

mentioned.

On the 25th of January 1827, before the answers were put in, Rungama presented

a pet~tion to the Sudder Court, p r a y i ~ g to be admitted a joint Respondent to the

Appeal, then pending before that Court, between Ramanadha and A t c l ~ a ~ a . To

t h i d application, both Atcharna and R a ~ ~ ~ a n a d h a filed counter-petit~ons, denyiiig the

title of I~utchmeputty, and praying for the rejection of Rungama’s petition.

Upon considering these petitions, the Court was of opinion, that the interests

of justice would be best consulted, by the suit brought by Rungama being called on

as early as possible for trial, and by post~~oning the decision of the then pending

Aypeaj, till the result of that trial should be known. The Provincial Court was,

therefore, directed to proceed to the trial of Rungama’s suit, without reference TO

its order upon the file of the Court.

On the 15th of May 1828, mana ad ha fded his special grounds of appeal from

tht Provincial Court’s decree, in the suit i~is t~tuted by Atchama, in vhich he insisted

OB the various circu~istances stated by him in the proceedings before taken, and

added a claim to the estate of the late Jaganadha on account of his having died

without issue, suggesting that, according to the custom of his family, a female was

i i~capab~e of pre[32]-siding, and that A t ~ h ~ ~ ~ a had no title, and could not succeed

to the ~ e ~ ~ i i n d a r y of the late Jaganadha.

Btchania, by her answer to these special grounds, denied the various a l l e ~ a t i o ~ s

contained in Ramanadha’s reasons of Appeal, and insisted on her title, as the senior

widow of the late Jaganadha, to succeed to the whole of his real and personal

esiate.

Pending these proceedings in the Sudder Court, Rungan~a’s suit in the Pro-

irincial Court, against Atchama, Ranianadha, and Puttoory Cdy Doss, proceeded.

~ a ~ ~ a n a d h a , by his answer, insisted that the whole story of Lut~hmeputty’s

adoption was a fabrication ; and not only stated the fact of there being several male

children in the immediate branches of the family, eapable of being adopted, but

i ~ a ~ n t a ~ n e d the existence of gotruinti an~ong Soodras, and represented Lutchme-

putty to have been of a different gotrum from Jaganadha. He also insisted on the

i~val idi ty of any adoption out of the common gotrums of both parties; and stated

the Chava-Tar to be a family so far inferior to that of the ~as~areddy-var , as uot

to permit of alliances being contracted between them ; he also traversed &he alleged

~ o ~ m u n i c a t i o n by J a ~ a n a d h a of the adoption, to the authorities, insist~ng on the

natural inference arising out of the non-communication, particularly in the instance

of Jaganadha, who he represented was well aware of its necessity. He denied the

existence of the alleged Will, and the co~i~~en~poraneou~ d o c ~ ~ e n t s said to have been

suppressed, and the conspiracy charged against him and Puttoory Caly DOSS, and

insisted on the genuinenem of the various papers connected with his proceedings

for o b t a ~ ~ i n g possessio^, and in p a r ~ i c u ~ a r of the ~ppellai~t’s s ~ ~ - ~ ~ ~ - ~ ~ a t u r e to them,

and actual dictation of their contents. He represented the Plaintiff to

have herself addressed a letter to the Collector of Guntoor, on the 4t;h

of July 1825, praying him to return to her the Will left in his fatour ’by

Jaganad~~a. for the purpose of being produced to the Provincial Court, and tu have

sent it by her vakeel separately with N. Trakalut-narnah executed by her to him,

a u t ~ ~ o r ~ z i n g him to present the same arzee to the Collector, and s u b s ~ u e n t ~ y to have

produced the original Will, through her pleader, to the Court, In further coiitra-

diction of the aIleged imposition on the P l a ~ ~ ~ t i f f , he stated, that he was residing

openly with Rungama in the house, while publicly assuming the proprietorship,

performing, in his own name, his brother’s funeral rites, and defending Atchama’s

suit; and he wholly denied the execution by him of the alleged karar-namah, ad-

i ~ i t ~ t ~ n g u ~ c ~ ~ e ~ u t t y ’ s title, and underta~ing the maiia~enient on his half.

The Reapondent, Puttoory Caly DOSS, by his answer, insisted that the circum-

stance of ~ a n i a n a d h a ~ s possession of the ~ e ~ ~ n d a r y was open and notorious, and

that the whole of the P l a ~ n t i ~ s statenients respecting him, Puttoory CaIy Doss, were

unfounded and untrue.

Atc~ama, the senior widow, by her answer, insisted, that the Will alleged to

have been made in favour of Rungama was fabricated, and that the alleged adoption

612

a*vnLI*IiuN U . mioiniYWunN tlntlvw LI U Y O ~ IV HQORE IND. APP., 34

of itchme me putty was a fiction ; stating, that at the time when such adoption was

alleged to have taken place, Jaganadha was only twenty-two years of age, and likely

to have had issue of his own, and that there were nearer relations,from whom he would

have made the adoption, if he had intended to adopt a son; and denying that

Lutcbmeputty had ever been acknow-~~]-ledged by him, as a son, and she insisted

on her own title as the elder widow, and stated, that in fact, a Will had been made

by J a ~ a n a d h a in her favour, and that for a long time Bamanadha and Bungama

had been acting together, and that, by arrangement between them, the former had

been let into possession of the estates.

To these several answers Bungama replied, and the Defendants rejoined.

The Provincial Court, after cons~dering the p l e a d i n ~ s ~ declined receiving evi-

dence, and, on the 11th of Hay 1827, made a decree, in the cause, d~smissing the suit

nitli costs. Xr. B. Lord, the Second Judge, in his opinion, observed, (‘ The authen-

ticity or spuriousness of the Will, about which so much has been said in the Plain-

tiff’s petition, is a point of very Iittle importance to the Court. Wills are not known

among the Eindoos, and cannot possibly be of any importance, whether genuine or

forged: the law makes the Will of an Windoo. If, therefore, the Will be in con-

formity to the Iaw, it i s supererogatory ; if it be contrary, whether genuine or not,

the bequests can never be carried into execution.” He then noticed the circurn-

stances which he considered to indicate an attempt to deceive the Court, and pro-

ceeded thus :-“ ‘Phis foolish attempt a t deceiving the Court, or p e r s ~ a d ~ n g them

to believe that the whole proceedings referred to, have been done without the know-

lodge of the Plaintiff, is only to be equalled by the more absurd reason for her bring-

ing this action, namely, as the guardian and adopted mother of ~ u t c ~ ~ m e p u t t y . The

falsehood of this statement is too notorious to admit almost of any serious observa-

tion. The P ~ a i n t j ~ alleges that the adopt~oii took place so long as 1819 ; and it must

be [36] acknowle~ged as an extraordinary circumstance, that it should have re-

mained a secret until 1826 ; although two suits, for the poss~sion of the whole estate

of Jaganadha, had already been decided by this Court, and one, which had been

appealed from, withdrawn with the direct assent of the Plaintiff. The adoptio~,

therefore, has evidently been an after-thought of the P ~ a i n t i ~ , s own, or of some

of her advisers, who expect to benefit by the cause ; for not a word has appeared,

r e s ~ e c t i n ~ the adopt~on, in the two former suits, nor probab~y would it now have

been assigned as a reason for claiming the estate, had-not the Collector of Masuli-

patam jnadvertently written to the Board of Revenue, that J a ~ a n a d h a had paid

him a visit accompanied by his adopted son. Whether it ever was the intention

of the Plaintiff’s husband to have adopted this boy, cannot now be determined, buti

it i s incontrovertibly true that he never did adopt him. If this c e r e ~ o n y had been

performed in 1819, it would have been impossible to conceal the event, even if it had

bten desirable: but it i s a me~sure of suclr importance, in a family of rank rand

wealth like that of the Vassareddyvar, as to form the subject of addresses to

~ ~ v e ~ n m e n t , to he Board of Bevenue, to the judicial officers, and, in fact, to all

public authorities, likely to have any concern with the sarnastanum: none of these

public communications have ever been made, nor has in~orniat~on on the subject

even i i~cidental l~ reached the Collector of Guntoor, or, what. may be more extra-

ordinary, any of the native population. f am not prepared to say, that the Plaintiff

may not have nunierous adherents ta swear to the adoption, but this, even if per-

mitted, would not convey to my mind any proof that it had occurred. The cere-

monies a t ~ e n d i n ~ the[SI adoption could not be performed secretly, nor could they

be performed without the assistance of numerous hands. As has been said before,

witnewes to swear to those points may be in readiness, and I have no doubt they are :

for the Plaintiff his enumerated sonie of the ceremonies in her plain& to which these

witnesses may be called to swear; but I am of opinion, that not a single testimony

on the point should be taken. The Court, by e x a ~ i n i n ~ witnesses, would in fact be

lending its authority to perjury,” Mr. J. 0. Todd, the Third Judge, in concurring

with the decree pronounced by the Second Judge, also recorded the f o l ~ o ~ i n g

opinion :-I‘ This cause ought to be dismissed at the present stage of the proceed-

ings. It i s obviously frivolous and groundless. We should be wanting in respwt

to ourselves, nay, more, we should w i ~ f u ~ ~ y connive at perjury, if, with our know-

ledge of the circumstances of the case, we mere gravely to proceed to the examination

613

IV BIOORE IND. APP., 37 RUNGAMA ‘U. ATCHAMA-

of witnesses, in proof of the impudent and palpable falsehoods alleged in the

plaint.”

From this decree, Rungaina appealed to the Sudder Adawlut of Madras.

On the 22nd of October 1829, the Sudder Adawlut of Madras made their decree,

in that appeal, in which the Court noticed that the pleas of Rungama, in her suit,

niight be distributed under two principal heads, viz. :-first,-those relating to the

imposition alleged to have been practised upon her by Ramanadha, assisted by

Puttoory Caly Doss ; and secondly, those relating to the alleged adoption of Lutchme-

putty, by her late husband and herself conjointly, these being matters of fact, which

could be determined only upon evidence ; the Court then, after observing with dls-

approbation upon the decree of the Provincial Court, proceeded E371 as follows:-

“ I n the pleadings filed in this Court on behalf of Rungama, complaint is very

justly made of the prejudication of the evidence, which she had to adduce, as

tending to deter her witnesses from appearing before the Provincial Court, and

upon this, as well as other grounds, she renews her application that her suit may

be called up for trial before this Court. ~otwithstanding the weighty objections, to

shich such a measure is open on many accounts, the Sudder Court would be in-

cl,ned to accede to her application; but as there are now on the Bench of the Pro-

vincial Court, two Judges who were nowise concerned in the previous proceedings

iii this ease, the Court are satisfied that the transfer of the original suit to the

Presidency is not necessary for the ends of justice, and is unadvisable, as subjecting

the witnesses to great inconvenience, and the parties to great additional expense.”

The Court, therefore, ordered the Provincial Court to re-admit the suit, and to

try and determine i t de WJWO

In obedience to this order, the Provincial Court proceeded to try the

cause.

A great mass of evidence, both oral and documentary, was produced by Run-

gama, for the purpose of proving the actual performance of the ceremonies of adop-

tion of Lutehn~eputty, by Jaganadha and Rungama, and of his being brought up

as Jaganadha’s son. It appeared that the fact of such adoption was not formally

reported to the Government authorities, according to the usual course, but that on

several occasions Jaganadha visited Mr. Roberts, the Collector of Masulipatam, ac-

companied by Lutchmeputty, whom he represented to be his adopted son. Rungania

put in evidence certain letters alleged to have been written by Jaganadha to [38]

her, in one of which, Jaga’nadha mentioned the subject of the adoption ; together

with questions put to the Pundits, respecting the legality of the adoption, and the

answers thereon : she produced, also, the papers alleged to have been executed, on the

occayion of the adoption, between Jaganadha and Lutchmeputty’s natural father ; the

alleged Will made in favour of Rungarna : and the karar-naniah executed by Kania-

nadha to Nungama, acknowledging Lutehmeputty as Jaganadha’s adopted son, arid

for whom he acted only as maiiager. The material part of this evidence is stated

in the decree of the Provincial Court.

To rebut this evidence, Atchania entered into proofs, both oral and docu-

ntentary, at great length. Evidence was also produced, on the part of Barnanadha,

aud Puttoory Caly Doss.

On the 5th of July 1830, the First and Third Judge, Mr. G. Barran and Mr.

S. Money, delivered the second decree of the Provincial Court, in the suit, and

after fully reviewing the evidence, Mr. G. Barran expressed his opinion, as

fcllows :-

“The foregoing examination shows that this question of adoption has been

biought forward under very suspicious circumstances. There are many facts that

speak against if , independently of the tefitimony of the witnesses, all of which will

be noticed. There are no want of witnesses to speak to the fact of adoption ; but

i t is to be seen, whether what they depose will bear the test of strict scrutiny and

coinparison ; in a question of so much importmce as the present, there will be found

iio di6culty in finding persons to speak to the simple fact of a ceremony of adoption

having been performed : for instance, the ~ l a i n t i ~ s fir t witness is completely master

of his subject; he is present at E393 every ceremony, from the marriage of Jaga-

nadha, twenty-seven years ago; he is prepared for every doubt and objection; he

is the leader, and all the rest follow, bearing witness to some one point or more that

614

A T ~ ~ A ~ ~ ~ v. ~ M A A ~ ~ A BABoo p~13 zv XVoRE zm. APP., 40

11 3 has deposed to ; taking the evidence^ therefore, for the P ~ a ~ n t i ~ , as it stands, the

a d o ~ t ~ o n might be considered as proved j but there are several d ~ ~ c u l t ~ e s , that

oppose themselves to the admission of this as a fact.

“The P i a i n t i ~ referred to letters from Ms. Roberts, the Collector of ~ a s u 1 ~ -

patam, addressed to the Board of Revenue on the 3rd pnd 27th of Nai*ch 1825,

wherein he speaks of an adoption. I do not consider it to be evidence, but the

r j l a ~ n t ~ ~ may have the benefit of it. Mr. Roberts says : ‘ The Zemindar has left two

.crives and a child, which he stated to me, some time since, to have adopted:’ and

again, ‘ The ~ ~ c e a ~ e ~ , Ja~anadha) was p r e ~ a r i n ~ to return to A ~ i a ~ a y a t y ; he received

~ e ~ ~ i s s j o n ) on making the request, to wait upon me: he took that opportunity, he

observed, of presenting me his adopted son, Chava ~utchmeputty; from what he

&en stated, I felt fully assured that the ado~t ion had taken place, and I have bee2

given to understand that the boy has been presented in the same manner to several

~ e ~ i n d a r s , the friends of the Iate Jaganadha, whom the child was in the habit of

: ~ d d r e s s ~ ~ ~ g as his father :’ again, ‘ If adoption can be effected by Rindoos (not being

Ifrahims), by tlze public acknowledgn~0~~t of the heir, and which I beIieve to bc

a ~ i s s i b ~ e , the young Chava ~utchmeputty, by a re~idence of scwe years with the

deceased Zemindar, attended with a peculiar degree of affection which was mani-

fested towards him, and his public presentation, as the adopted heir, may claim,

1 conceive, to be considered his heir, and which the paper called a Will tends to

lwove.’ ”

f40J What the Board of Revenue said t;o this do= not appear, but i t could have

had no weight with them, for L u t e ~ ~ e p u t t y was not acknowl~ged, and ~ ~ ~ ~ ~ n a d h ~

was put in possess~on of the ~ e ~ i n d a r ~ . Mr. ~ o ~ r ~ , i t would appear, irlade this

ieport upan the strength of what Jaganadha ha.d said to him, and he must have

taken the whole of what he so reported upon credit; but that gentleman appears

to have fornied an unusual idea of adoption arn@ng Windoos, that a public &&now-

~ ~ d g ~ ~ e i i t of him as heir, and by a residence of some years with the Ze~niI~dar, and

being treated with a ~ e c t ~ o n , gives a claim to be considered the heir, Now the aci of

adoptioli is one of the most sacred sitas a Bindoo can perform, and i t i s not a mere

avowal or a~know~edgment of adoption that eons t i tu~s the act, or ~ o n ~ i t ~ t e s th

heir. In his testimony he says that hs i s a c ~ u a i n ~ d with the n e c e s ~ r y fo~ol’mula

of the law of a d ~ p t i ~ ~ , as coiitaine~ in t l s general ~ u ~ a ~ y of the ~ i n d o o law, by

Colebrooke, but made no p a r t i e u ~ a ~ inquiry a& to what fornzula were used on the

occasion, Mr. Roberts, throughout his evidence, admits that his conv~ct io~ , respect-

ing the ~ d o ~ t i o I ~ , was obtained entirely from Ja~anadha’s own c ~ ~ ~ ~ t ~ n i c a t i o ~ of

it. He states, that his conversation was in R indu~ tan i~ with J a ~ a r ~ a d ~ ~ a , and that

the word ‘ dhut ’ in the ~ ~ n d u s t ~ i ~ e a n s adopted son, and that. ‘paluk ’ means the

singin in^ up of a boy. Now ‘ dhut ’ i s not a R ~ n d ~ i s t a n ~ term, i t i s Sanscrit : and if

~ a g a n a d h ~ ~ conversed in that ~ a n g u a ~ e , (H~~idus t~ni ,} he would have used the latter

term J for there is no adoption under the ~ ~ h o ~ ~ i e d a n law, upon the footing that it is

anzong the Bindoos, and they have no term by which they could convey the idea of

:in a d o p ~ i ~ ~ ~ , as p e r f o r ~ e d by ~ i n d ~ s .

up or foster, i s of a general nature, and would mean no more than that I ani bringing

tip a boy : that this boy should have been trsated with k~ndness) i s accoui~ted for by

the fact, rhat Kungania and ~utch~neput ty are sisters’ children, and it vras very

xratural, that, having no c ~ i l ~ r e n of her own, she and Ja~anadha sliould fo&er this

child. There must be some imre substantial evidence of adoption than this simp’te

fact, and ~aganadha’s verbal c o ~ u n i c a t i o n to MY. Roberts.

‘I Mr. Oakes, in his testimony, declares, to the best of his r ~ o ~ l e c t i o ~ i , that Jaga-

nndha never made any comnruni~at~on to him, verbaIly or in writing, of any ~ n t e n t i o ~ ~

of a d o p ~ i t ~ ~ a son. Now this ge~~ t~en ian W I Z S Collector of ~ ~ n t o o r , from 18x1 to 1821,

arid ~ i ~ ~ a r a v a t y , the Zeniindar’s place of residence, under his ~ u r ~ s d ~ c t ~ o ~ ~ . Why

should he omit- giving to the ~ o ~ e c t o r , with whom he had a corlstant ~ ~ t e r c o u s s ~ ~

a piece of ~nformat~on so import~nt , if really he had formally adopted this boy, with

a view of his erf for^^^^^^ his funeral sites, and becotning heir to his estate? M r

George Russell, who was also Collector of M a s u ~ i ~ a ~ m , from 1812 to 1821 recollecvs

KIO c o i i ~ ~ ~ i ~ ~ ~ i c a t i o n having been made to him by Jaganad~~a, of his having adopted

a hop.

‘‘ Mr. ~ ~ h ~ s ~ ~ , the present Collwtor of ~ ~ n t ~ r , in a letter to the Board of ~ e ~ r e I ~ u ~ ,

The word ‘ paluk ’ or palaca, to bring

615

IY MOORE IND. UP.,

dated the 20th of July, 1826, says as follows:--‘ The boy ~ u ~ ~ e p u t t ~ did accom-

pany the Zemindar one day on a visit to me ; but it did not appear that he looked 011

him as his adopted son, a l ~ o u g h questions and a i i s~era passed aa to who he was.’

‘‘ If this boy had really been adopted by Jaganadha, according to law, it is natural

to suppose, as it was [a] necessary, that such co~munication should be made to

those aut~~orities, under whose cogn~zance alone the boy could be ackno~rledged ab

heir. 1 rather think, that whatever J a ~ a n a d h a might have told Hr. Roberts, he

never meant to give him to believe that L ~ i t c h ~ e p u t t y was ~ a w f u ~ ~ y adopted. Mr.

Roberts must have misunderstood him: and this is the more likely, as Jaganadha,

like Mr. Roberts, was talking a language not his own, and of a thing for which there

was no corresponding term in the dialect in which they were talking.

“ Wlleii this adoption is said to have taken place, viz., in 1819, J a ~ a ~ a d ~ l a was only

twenty-four years of age, and Rungania twenty; Atchama, a year or two more.

I t appears that Atchaina left Ja~ai iadha a t are very time, as will hereafter

be ~hown, that Jaganadha is said to have been coilternplating an adop-

tion. Rungama admits that she had twice conceived, but had nut brougltt to the

birth ; and her first witness supports her asserti~n. The second l~efexida~~t’s four-

teenth witness declares Rungama to be a woman of a superior descr~ption. Jaga-

nadha was in good health, although corpulent, and there were no just grounds for

him, or for ~ u n g a m ~ , t o come to any co~~clusion that they could have no more

children, for there were acknowledged proofs that neither of them was sterile; there-

fore there was no necessity for them to adopt a boy at that time. The Plaintiff’s

first, seventh, and thirteenth witnesses, however, declare that Jaganadha was in a

bad state of health, and the seventh witness enters very minutely into its nature j

but the Plaintiff’s witness, Mr. Roberts, says he was in perfect health when he saw

him. Mr. ~ u s s e ~ ~ says that he was corpulent and a p o p ~ ~ t ~ c in appearance; but ltrt

did not die of ap0-[$3]-plmy. Mr. Qakes says he was in health ; and several of the

D~fendant’s witnesses state that he was in a good stxte of health.

‘‘ ~ ~ t h o ~ i g h it i h not conclusive against the adoptioi~. there is ground for strong

presumption, that it never took place, as alleged, because the necessity for i t did

not exist. It i s not re~sonable do suppose, that a young man of f#ur-and-twenty,

and a young woman of twenty, who had bwii twice p r e ~ ~ a n t , would despair of having

children, and have recourse to an ac% which none but the sterile and old resort to.

“ There are other cir~iims~ances which go against the adoption ; the peculiar

eircuntstances under which Jaganadha and Rungama were, a t the precise period

of time that it was contemplated and took place. It is stated that, on the 26th of

April, 1519, Jaganadha and Rungama went from the village of Ra~avapoorum to

that of Eralapaudoo, where the father of the child lived, and that they brought him

away from thence, and returned to Amaravaty; that it was on the 21st the question

m s put to the Pundits, and on the 23rd they: gave their answers. On the same

day Jaganadha sent a copy of it to Rungama, who was at ~ a g a v a ~ ~ o o r u ~ , and he

followed on the 25th. All this is very clear, but it is dffiidedly contradicted by the

Def~i~dant’s witnesses, who declare that J a ~ a n a d h a was at that tinie a t the village

of Nataky.” The learned Judge then entered upon an esamination of the evidence,

respecting this fact, and proceeded : -

‘‘ I have gone through the whole of the evidence, and the d o c ~ ~ i ~ e n t ~ , touching

the question of ndoption ; and supposing it to have been performed, as averred, the

Plaintiff has yet to overcome two objections to the validity of it, The first of these.

is, if the adoption of 1441 a child from. another gotrum is an act contrary to law2 I

apprehend the law is restrictive to Brahmins, and that not penally ; a Brahmin may

adopt from another gotyum, if he cannot find a boy in his own, and sa may a Soodra :

there is no penalty, as f a r as I can learn, for the deviation ; but why should Jaga-

nltdha take a child from another family, if one of his own gotrum could be had? It

is difEcult to understand that he should be led by any ordinary impulse to cut off the

i r ~ ~ e r i t a l ~ c e from his own, and an ancipnt family, and divert into one that was

inferior. If Jaganadha can be supposed to have had any feeling on such a point, i t

may be inferred, that he never did what he is alleged to have done, and that this

adoption has been a s u b s ~ ~ e ~ t plea got tip, and that the selection of this boy was

influenced by Rungama not being. able to get one of the ~rencatadry-var’s gotrum,

and not because there were none of that family.

“ The first Dafendant’s third witness has stated, that the Plaintiff sent 8 letter

RUNCAMA 21. ATCHAMA-

61 6

~ T ~ ~ A ~ A D. ~ ~ ~ A ~ A D ~ A BAR00 cl8461 XV ~~~~ IND. APP., 46

to Vassareddy Chinna ~~enca tadry Naidoo, after Jaganadh~’s daath, aud after &e

decree was passed in favour of Atchma, for one of his sons in adoption, who refused

doing it. The. fourth and sixth deposed to a similar effect; but this i n d ~ v i d ~ l ~ l is not

a witness in this case. ere evidence is BO easily obtained, I s h o u ~ ~ be d~sposed to

attach no great degree of credit to their tes t i~ony, if the assertion of there being no

suitable child of ~ a ~ a n a d h a ’ s own g o t r ~ r n were othesw~se well sup~~orted. The

~efendants have ~ a i n t a i n e d , and endeavou~d to prove, that there .cyere severaf

families of the same gotrum; and it i s certainly very probable that there were.

~,utchn~eputty being ~ u n g a ~ a ’ s mother’s sister’s son, and brought up in the lkouse,

offered a more eonveu~ent E#] object than any other. If this q ~ ~ t i o n f adoption

was concocted to set aside the c l a ~ ~ s of ~ t c h ~ i a and ~ a n ~ z n a d h a * the boy’s conuec-

tions would n a t u r a ~ ~ y support it with the whole weight of their countena~~ce and

evidence.

The rite of adopt~ol~ is

a sacred one among the Hindoos; it i s of a spiritual nature; and the Hindoo h w

is very p o ~ n ~ d as to the reasons and object of adoption, and declares it to be for the

sake of the performance of the funeral rite8 of a man having no niale issue, and to

per~etuate his name; i n h ~ r ~ t a n c e follows of course, but it is a s ~ o n d a r y considera-

tion. It Is laid down, among other

necessary provisions for the l ~ a l ~ t y of the perfor~ance of it, that it sball bs dom

in concert with his wife, and, if having two, with his elder wife; i t i s very clear, and

admitted, that Atchama, who was the eldest, was neither present nor consulted. On

this ground, therefore, i t is strongly objected that the adoption was illegal. It i s

not n ~ s s s a r y to r ~ a p ~ t u ~ a t e what the law i s , but i t is nod denied ; ~ u n ~ a ~ a , ~ o w e v e ~ ,

e n d ~ a v o ~ ~ r s to s u r ~ ~ o u n t this ~ ~ ~ c u ~ t ~ , by a r m i n g two points; first, that. there

was no preeedoncy b~tween the^^ that they were both ~ a r r ~ e d a t %be same time;

m d the first witness i n ~ e n i o ~ ~ s ~ ~ enough attempts to explain how certain cei ,e~on~es

could be perfor~ned by one husband, a t one and a t the saxno ~ o ~ e n t of time, upon

two wives, which e e r e ~ ~ o n y would c o n ~ ~ t ’ u t e superiority in the one with whom it was

first pe r f~ rn~ed . A t c ~ i a ~ a } being the eldest in years, would have prec~eK~ce} uot

only as being the one with, whom marriage would natura~ly be first c o ~ ~ s u ~ m a t e d ,

but seniority in point [&I of age would give it to her. ~ h e t h ~ r this d ~ s p u ~ d

claim gave rise to animosities and r i ~ ~ a ~ h ~ p between the wives, or whether this

~ ~ u a ~ ~ t y is an a s 5 u ~ ~ ~ t ~ o ~ of more recent date to meet ths objection, does not appear

in evidence, This claim to equal~ty I do not feel d i s ~ o s ~ to admit. It i s nowhere

n~e~t ioned in the law, as far as I can recollect, that there exists an equality, for it

speaks of first and ;second wife; it i s niore natural, and consonant to the world’s

u sap , to give prec~eric6 to age. My opinion is, t h e r e ~ o r ~ , that A ~ c h a ~ a must be

~ons ide~ed the elder, and taking pr6ce~e~~ee , and she is the wife for w h ~ n ~ the ~ ~ n d o o

law has provided certain priv~ieges.

But, as if this were not t6~able, ~ u n ~ a ~ a ~ a i n ~ a i n s Dhat A t c h a n ~ ~ had for-

feited thme p r ~ v i ~ e g ~ , by having been a~andoned by ~ a ~ a n a ~ h a ; and this abandon-

ment i s proved by several w~tnes~es. ‘Phis point, however, is not contwted; but

the cause of this disunion, a8 f a r as a legit~mate reason is required, is not discovered ;

it was said that she was disobedient, but the characbr of that disobed~ence is not

collected; not one witness accusm her of any spcoific act; her honour and virtue

are not ~ m p ~ ~ e d ; i t i s only, there for^, that ~ncompatibility of ~ m ~ e ~ can be laid

to her charge, but that will attach equaliy to ~ a g a ~ a d h ~ ~ u n g a ~ a , however,

produces a docu~nent, wliich purport^ to be a letter from J a g a n ~ d h a to ~ u ~ ~ a m a ,

dated 14th of April, 1819, while he was a t ~ ~ t a k ~ , and she a t ~ a ~ a v a p o o r i l n ~ ? and

pending the period of seeking for the h y , and that Atcharna was before the

~~~agis txa te GuiltOor, p refer r i~~g her c o ~ p ~ a i n t against ~ a g a n a d ~ a for maftreat.

amit : he therein ~nsinuates that s o ~ e t h ~ n g had occurred, which he did not follow

up, on account of ~ t a ~ a h F ~ ~ ~ ~ o o ’ ~ a d - ~ ~ ~ ~ - v ~ c e , that it w ~ u l d be d j ~ c ~ l t to

~ ~ o d u c e p r ~ f ~ , and that, if they were a d d ~ c e d ~ it wouId be ~ i s g r a c e f u ~ ; and that its,

t ~ ~ e ~ e f o r e , mainta~ned a passive part. It; i s very vague and quite ~neonclusi~e, as

to any guilty act on Atcha~a’s part, by which, under the law, she could forfeit any

of her privilages. Neither does At~hama’s con~uct indicate a guilty part: sfle

~ o ~ ~ f i d e n t ~ y brings her complaint, and lays herself open to any i ~ p l i c a t ~ o n r charge

that ~ a ~ a n a d h a might urge in jusi~f icat io~~ of his conduct towards her. ~ a g a n ~ d ~ ~ a

‘* I come now to the last objection against the zdoption.

In the present case it appears to be p r i ~ a r y .

P.c T T X . 617 izoa

is, on this comp~aint, fined and exposed; but A t c h a ~ a does not stop here: she

institutes a suit in the Ziltah Court for maintenance, and obtains a decree in her

favoitr in the lower and higher Courts : this does not mark that she had been guilty

of any previous want of aliegiance. However, having submitted to these ordeals,

as it were, A t c h a ~ a must be considered as h o ~ d ~ n g all her privileges u n i ~ p a ~ r e d ,

although Jaganadha thought fit to withhold them. The main cause of this disunion

was, no doubt? a rivalship between the wives; and the anib~tion of ~ u n g a m a , &e

being the younger of the twQs about two years, naturally gained the ascendancy in

the affection of Jaganadha, and having done so, it is not difficult. to understaxid

that these disputes would follow.

‘‘ If the adoption had been satisfactorily proved, unatt,ended with the sereral

ob jec t~o~~s and suspicions hanging over it, I should make a stand against its hgality,

on the ground of the law having been depsrted froin, in performing it w ~ t ~ o ~ t the

co-operation of the elder w i f a The ~ o v e r n m e ~ t have pledged themselves to ad-

ininiscer to ~ ~ i ~ d o ~ , the ~ ~ n d o o law; and with that pledge before me, I cannot

ratify, by my assent, an act done contrary to that law. I think it [4$] behoves. e v c ~ y

public officer in author it^, to enforce a strict obeervance of the law, and not to allow

caprice, anger, or any other passion, to step in, to cut off the rights of another.

A t c ~ a I ~ ~ a had an indisputable right to have aided a t this adopt~on, as the first wife.

The P ~ a ~ n t i ~ s witnesses admit that Jaganadha had no power to set aside the game,

arid deprive her of her legal righb. Jaganadha, during his life, never i m ~ e a c ~ ~ e d

her fidelity, although he had opportunity and provocation enough to do so, had there

been grounds. The plea that being married

at the same nioinent of time, and that, therefore, there was no precedency, is absurd ;

it i s quite out of the order of things to be so. The law says, that a man’s wife is the

half of himsolf, and that his second wife i s for the g r a t ~ ~ c a t i o n of his sensuality.

2 b l - can two wives be the half of the ~ u s b a ~ d ? This i s a futile attempt, aa I view it,

to evade the law. The question at issue is of too niucli importance to admit of a

q u ~ b ~ ~ l e in the scale. The Hindao law admits of a plurality of wi9es, arid at the same

time assigns to them their proper ststtion, duties, and privileges; i t allows c~~~ld le s s

persons ro adopt a son, for a special and spiritual purpose; and it equally prescribes

the forms for it, and everything that i s essential to its c ~ p l e t i o n . If an adoption,

therefore, takes place, omi~ting or evading those provieions, it is not according to

the law, and, therefore, of no egect.

“ Jaganadha could not plead orayi ay ice of the law ; he was surrounded by Pundits.

We would appear, a8 is alleged, to have had recourse to them on 8 doubt of minor

con~ideratior~. It is not r~onc i l eab~e with that precaution, that he should have

deviated from this point of law; it is equally irreconcileable that he [49] should

have omitted another point laid down, that he should make known the adoption to

the high& aut~ori ty , not as a n~cessary act, but that public~ty may be given to it,

and the a d o p ~ i o ~ recognised. The kindred and relations are also required to be

present, but it i s not found that any of his own kindred were a t the ceren~ony~ If

~Jagai~adha had really gone through the ceremonyl and adopted this boy, he wauld

have follo~ved the example of ~ e n c a t a d ~ , who ~ t ~ n d ~ to all the provis~on% of the

law, by which ~aganadha’s succession was secured to him. I am of opinion the

~ 1 a ~ ~ ~ t ~ ~ ’ s case should be d ismi~ed , with coats.”

3fr. S. Money, the Third Judge, concurred with the First Judge; and the Court

came to a finding upon the evidence, that no valid adop t io~ of ~,utchmeputty hthd

ever taken place, and they dismissed the suit, with costs.

Against this decree, ~ u n g a ~ a appealed to the Sudder Dewanny ~ ~ d a w l u t of

Madras, and as the Appeal from the first decree of the Provincial Court, in the

original cause, had continued on the file of the Sudder Court, she filed a supplementat

petition of appeal, against the second decree.

On the prese~ta t~on of this Appeal, the course pursued by the Sudder Court,

agreeably to their previous r ~ o ~ u t ~ o n , was, to bring under consideration a t the

same time the record of the three Appea~s, vis. ~ a m a n a d h a ~ s original suit against

J a~anadha ; Atchama’s suit against ama an ad ha ; and Run~arna~e suit aga~ns t

Atehama, manad ad ha, and Pu i too r~ Caly DOSS, on account of the intimate con-

nection subsisting between them ; and to pronounce one wmmw decree in the three

Appeals.

618

None of the witnmses venture to do it.

AI'CHAMA b. RAMANADHA BABOO [ 18461 IV ~YIOQRE IND. UP., w

The decree was pronounced on the 14th of March E501 1832, It reversed the

decrees against Ramai~adha, in his suit against J a ~ ~ n a d ~ a , and Atchar~a's suit

against him, and affirmed the decree in Rungama's suit, and declared ama an ad ha

entitled to the succession of the entire ~assareddy property, subject to certain

allowances, for ma~iitena~~ce, to the widows of Jaganad~a. The material part of

this decree was in the foliowing te rns :-

" The question to be determined in these Appeals, is the right of succession to the

entire property of the late Vencatadry. It is claimed, first, by Ramanadha, his

becond adopted son ; secondly, by Atchama, the senior widow of the late Jaganadha,

who was his first adopted son ; and thirdly, by Rungaina, the younger widow of

Jaect It is plain that Lutchmeputty's adoption, if mtablished, goes to defeat, in

toto, the claim of Atchama, and so much of R a m a n a d ~ ~ a ~ s claim as relates to one

moiety of the estate. It appears, therefore, proper that a decision should first be

passed upon the claim, which forms the subject of the Appeal, in the suit instituted

by Rungama against Atchania, R a ~ a n a d h a , and Puttoory CaIy Doss.

" The Provincial Court, in a decree of e ~ r a o r d ~ n a r y length, have gone into a

r ~ ~ p i t u l a t ~ o n and detailed e~amination of the evidence, for and ag&inst the fact

of the alleged adopt~on of ~ u t c h ~ e p u t t y , by the late Jaganadha, upon which the

whole of this p r t of tlie case depends.

" ~ u m e r o u s w~tnesses are produced on the side of the Plaintiff, who deposes that

they were present during the performance of the cerniony of adoption a t Ama-

ravaty, which they detail with much minuteness, and [51] almost perfect conformity,

as to the particulars of the ceremonial; and, on the other hand, the DefendaI~ts

bring forward witnesses, who swear that they were present a t Amaravaty, on the

day assign~d to the t r a n ~ ~ c t i o n ? and that ~ o ~ i r i ~ of the kind took place.

'' The Court is not disposed to attach much weight to the native testimony on

either side. The facil~ty with which false evidence i s p r ~ u r a b l e in this country,

and to an extent peculiarly notorious in that part of it to which those witnesses

belong, is unhappi~y too we11 established by the records of the Court, to allow of

admitting, under the circuinstances which niark the present case, any fact as proved,

merely from the number and consistency of the witnesses who depose to it. In

determii~ing on which side the preference should, in this case, be given, reference

must be had to such other evidence as the iecord affords, and to the probability of the

~ ~ a n s a c t i o ~ attempted to be proved by the ~ l a i n t ~ f f .

" It is averred in the petition of plaint, that, on the 14th of July 1819, informa-

tion was given to the Collector of Guntoor, of tlie selection of the boy, Lutchmeputty,

for adoption ; and that, upon the occurrence of the ceremonial of adoption, on the

18th of August 1819, a11 the public authorities were made acquainted with the

c~rcumstance.

" But these a$sertioi~~ are contradicted by the depo~itions of Mr. Oakes, who was

Collector of Guntoor, from the 24th of July 1811 to the 14th of September 1821 ;

and Mr. Russell, who was Collector of Masulipat~n~, from the early part of 1812,

to the middle of 1821.

" Mr. Roberts, who was afterwards Col~ector of the district, last n~entioned,

states indeed, in his deposi-[5Z]-tion, that in interviews which took place betweerr.

~ ~ ~ m s e l f a&d the late J~ganadha, from April 1824 until his decease, in ~ e ~ r u a r ~

1825, he was Jed to believe that the boy, ~ u t c ~ ~ m e p u t t ~ , who accompanied tlie Raja,

M;as his adopted son. On the other hand, Mr. WhiEh, the Collector of Gunt~oor, in 2;

letter addressed to the Board of Revenue, dated the 26th of July 1826, states that

the boy, Lutchmeputty, did accompany the Zernindar one day, on a visit to hinri;

' but i t did not appear that he looked on him as his adopted son, although questions

and answers passed, as to who he was.'

' * In the decree of the Provincial Court, are contained remarks by the First

Judge, upon Mr. Roberts's evidence, which appear to the Sudder Court to be extremely

pertinent and forcible; and the Court are of opinion, that this officer, his

deposit~on, and in his communic~tions to the Board of Revenue, lay under a niis-

conception of what had passed in conversations with Jaganadha, in a language

~.ernacu~ar to neither party.

'' It i s well known that publicity? if not a ~ o l u t e l ~ essential to the validity gf an

619

manadha, on behalf of his alleged adopted son, ~utchmeputty.

adoption by a Eindoo, is always sought on such occasions; and the record of the

appeal, brought by Ran~anadha against Jaganadha, shows with what care and

pertinacity the late Vencatadry made known to the public aut~~orit ies his adoption

of Jaganad~ka and ~ a m ~ i i a d h a .

"So far from its being pretended by the Plaintiff, that any secrecy was observed

on the occasion of the alleged adoption of ~utc~kmeputty, the whole of her evidence

goes to show, that it was performed in the most public manner, and must have

been jmm~diately known to a large number of persons. Ber a s ~ e r t ~ o i ~ f@] that it

was reported to the Collectors, has been already noticed : they, however, have

denied that any such communication was made to them, and state that Jaganadhx's

adoption of a son was never brought to their knowledge.

I' The only obher material evidence, adduced in proof of the fact of the adoption

of the boy, ~ u t c h ~ e ~ u t t y , i s the alleged Will of the late J a g a n a ~ h a in his favour.

Could the a u t h e n t ~ c ~ t ~ of this d o c u r ~ ~ e n ~ be a ~ ~ i i ~ t e d , it would certainly f u r n ~ s ~ ~

strong evidence of the fact. But in respect to this Will, and the other two Wills,

produced as having been executed by the same ~ndiv~dual , in favour of Atchania,

and of R ~ ~ i a n a ~ l ~ a , r e s p ~ t i ~ e l y , it i s tu be observed, that, iv-ith reference to their

dates, tno of the three must be forgeries; and that if there were no other objection

to this Will, the condition of Jaganadha, a t the period of its alleged execut~on, is

shown, by the evidence of witnesses for both parties, to have been such as to deprive

it of all legal validity.

" The Court i s of opinion, tha t had this adoption taken place, i t could not, for a

period of more than four years, have continued u n ~ o w n to the revenue a u t ~ o r ~ t i e s :

it considers ako that the conduct of the Appellant, R u n g a ~ a , subsequently to the

death of her husband, and during the period which intervened between that event,

and the date of the filing of the suit in 1826, is of itself sufficient to attach to the

alleged fact of adoption, tb high degree of ~mprobab~lity, which is en~~anced by the

circumstance of ~utchmeputty's being of a different gotrurn ; and after the most

mature conside~ation, concurr~ng in opinion with the Provincial Court, that the

~laint i f f has entirely failed in making out her claim on behalf of L u t c h m e - ~ ~ ~ ~ -

putty, this Court resolves to dismiss the Appeal, with costs, against the Appellant,

Rungama.

' I The Provincial Court; in their decree in the suit of 1820, docltire, and the

opinion has the entire concurrence of this Court, that the adoption of both Jaga-

nadha and ~ a m a n a d h ~ , by the late Vencatadry, has been fully establis~~ed ; and

the Provincial Court dismissed the claim of ~ a i ~ a n a d h a , solely upon the ground,

th& his adopt i~e father had, by the terms of the deed, d i s q u a ~ i ~ e d elf from

a ~ ~ ~ ~ a t i n g any part of his property to the prejudice of the Defendant, Ja~anadha.

It cannot be supposed

that such a deed could affect the rights of any son who might subsequently have

been born to ~ e n c a t a d r ~ ; nor has any a r g ~ ~ e n t been adduced to show it could

preclude him from making a second adoption, in conjunction with his second wife,

~ ~ h o ~ he espoused after the execution of that deed.

" In respect to the validity of a second adoption, under the Hindoo law, a sou

first adopted being alive, this Court i s aware that much d ~ ~ e r e i ~ c e of opinion has

prevailed, On the present occasion, the Pundits of the Provincial C o u p , in the

Northern, Centre, and Southern ~ i v ~ s i o n s , are u n a n i ~ o u s ~ y in favour of its validity ;

and an opinion to the same effect has, with one exception, been delivered by the

~ u n d i t s , of the Sudder Adaa bit, as appears from the f o ~ l o w i n ~ questions, put by the

Court, to their late and prevent Hindoo Iaw-oEcers, and their answers thereto:-

(( ' ~ ~ ~ ~ ~ ~ u ~ . - Y o u are required to state whether a second a~opt ion (a son p r e

viousiy adopted being a h e , E563 and not ~ i s q u a l i ~ e d by de~i,ada~ion, or any other

cause which excludes from inheritance), i s good and valid according to the authorities

of Hindoo law, prevalent in the provinces subject to the Madras Presidency.'

( I ' Answer of the Pundit, Sivarama Sastri.-While one adopted son ia alive, nrld

not d i s q u a l i ~ e ~ by degradat~on, or any other cause which excludes from i n ~ ~ e r i t a n c ~ ,

a, second adoption is not valid, accord~ng to the autl ior~t~es of the Hindoo Xavv, pre-

valent in the provinces subject to the Madras Presidency.

~ ~ ~ ~ ~ . ~ ~ ~ . - T e ~ of Menu and others, in the Vijnyanes~ara, Smriti Chan-

etc., law books, declare that a man who i s in want of children, must use his

'' This Court can discover no ground for this decision.

' I

620

A ~ ~ A ~ A tL ~ A ~ A ~ A ~ ~ A BA300 fl.8461 IV ~0~~~ Im. UP., 66

endeavours to adopt a son, in order to succeed him, and to perform the obsequies of

h~mseIf and his ancesi~ors~ and that no man should give a 80x1 to a person who has

sons, because he has not that want, but should give sons to him who has none. But

it is nowhere stated, in any law-book, that a second adopt~on can be made while an

adopted son is alive.

'' ' In the law-book, ~ a t t a k a ~ ~ ~ ~ n d r ~ ~ a ? which treats spec~aI~y on adopt~on, the

nu, and its commentary, also state that a son must be adopt~d on the

failure of a son of the body. A man who has a grandson or great grandson, but

whose son is dead, is son~ess ; yet a8 a question may arise if he n e ~ ~ e s s l ~ adopts a

son, this text is ~ntended to prohib~t a man from adopt~ng a 8on who has either a

son, a grandson, or a great grandson^ alive.

" ' In the law-books, Nanda andi it&, Dattaka a, the texts of Atri, Sau-

naka, and Henu, and their commentaries, show th who has no son, or whose

son is dead, may adopt a son ; but not he who has soas.

[66] " ' In the same ~ ~ w ~ b o o k , an objection i s stated, that a man who has sons,

n a y adopt a son, as V~swam~tra and others did adopt ~evat ra tad~loo . This act,

however, as contrary to the Smritis, i s p~oh~bi ted ; get it is stated, that if there be a

vast desire to do i t accord~ng to the S m r ~ t ~ s , on the ~ n s e n t of the son of the body,

the power of adoption should remain, but there i s no ment~on~ while one adopted

son is alive, of a seco~d adopt~on.

*' ' V~swamitra, and those like him, were ancient ~ages, and ce~ebra~ed by long

and various penances, capable of doing both au thor~~ed and unauthorised acts.

But men of the present age cannot follow tbeir e~ample. It is thus dec~ared in the

s ~ s t r ~ s ,

'' ' In the Saraswati ~ i ~ a s u m , i t i s declared that sons adopted while one son only

of %he body i s alive$ are d~bar red from inher~tance, and should be merely main-

tained with supplies of food and appare~, and that the son of the body alone i s

ent~tIed to the inheritance. ~ a r ~ c h i made a c o ~ e n t a r y on the words, " one son

only of the body: but he does not declare that a second adoption is valid.

'' ' By Lohita Mula Sml-iti it i s understood, that an adoption may be made once,

not twice; that a second adoption e ~ ~ n o t be made, even after the death of one

prev~ously adopted, and that only one, not two, three or four sons, may be a d o p ~ .

" ' The original Snzriti of Capila declares, that on fa i~ure of a son's or daughter7s

o~spring, or on the death of a son or a d & u g ~ ~ r , a son may be adopted according

to the tkdas; that no adopt~on Can take place while a grandson, or great rands so^,

or daughter's son, i s alive; and that no second adoption can be made even after the

death of one ~ r e v i o ~ ~ y opted ; and that E571 as only one a d o p t ~ o ~ i s allowed by

the sastras, a second ~ d o p t ~ o ~ ~ i s ~ I t g e t h e r inadm~ssible*

'( ' The form of a d o p ~ ~ o n is thus expiained by Saunaka~ in the law book of Camat-

ankara ~ u t t i y a , ~ a t t a ~ a ~ ~ a ~ ~ s a :--The adopter must perform the ceremo~~y of

datta homam, o r o b l & t ~ o ~ to fire, and address the giver in these words,--'r 1 am in

want of a son ; I request you to give me your son for my happ~ness." The giver

must, by pouring water, then say, " As you are chi ldle~, I give you my son to raise

up a progeny j and he i s no longer my son."

'' ' It is declared in ail sastras, that a son of the body i s the ~ r i n c i p a ~ , and that

an adopted son i s gonna; consequent~y it i s highly improper that after the adoption

of such a gonna, another gonna ~ h o ~ l d be adopted, in the second ~ i ~ s t a ~ c e . There

is, the~efore, no such rule or sastrum in any of the ~ ~ ~ - ~ o o ~ s .

" ' 11% the law-books h~yam, Saraswat;i ~ ' ~ ~ a s u m , and ~ ~ h e a n a d a Dis-

~ a ~ ~ ~ a m (a book of auth n adha has^, or other a u t h o ~ ~ ~ ~ e s of law, p r e v a ~ ~ n t in

this part of the country, wEkere declared that a second adoption may be made,

while one ~ d o ~ t e d son i s alive. In the books I have seen, 1 found not; a single text

rding second adopt~on. Eence the second adoption, m ~ ~ t i o n e d in the question,

valid under the ~ u t ~ o ~ ~ t i e s of indoo law, prevalent in the ~ r o v i n c ~ subject

~ a d r & s ~ r e s i ~ e n c y .

'' ' In Chapter IT;., '' on ~ d o ~ t e d sons,'' in the ~ ~ y ~ b l ~ a ~ a ? in ~agana tha Ter-

ea~anchananum, i t is dearly ~eclared, that a person des~rous of many sons tnay

adopt a son> while a son of the body i s alive, But even ~aganna tha does not decIarc

Sastri, while he was in the college, compiled a book

a second adoption n2

583 " ' Veda P a t ~ & b ~ i

ade while a son previously adopted is aiiva.

621

r ~ a r d i n g adop~ion, after a deliberate consideratio~i of all law-books. In this

book ~ a t t a b h ~ Rama Sastri set aside the opinion of ~ a g a n n ~ t h a , which authorises

an adoption while a son of the body is alive, and recited in support of his objection

the text of Menu, which declares that aIi adoption by a mm who has sons is for-

idd den, as the act of a man who plucks out his eye with his own hand.

" ' Xf there had been a rule or precept in the D h a r ~ a Sastras, a u t h o r ~ s i i ~ ~ a

second adoption, while one adopted son i s alive, pat tab^^ R a m Sastri mould nob

have stated as aforesaid.

'' Answer of the Pundit, Jyah Sastri.--' While a son prev~ous~y adopted Is dive,

and not disqualified by degradation, or any other cause which excludes from in-

heritance, a second adoption i s valid, according to the au thor~t~es of the Hlndoo

law, prevalent in the provinces subject to the Madras Presidency, as will appear

from the follow~ng texts :-

" I Texts in the law-bo 8, Parasarla ~adhav iyam, V~theanada Dishatiyai~~

Ku'rma ~uranaIn , and others, and the text of Vrihaspati, and a180 the tea% of Sanca

Lichita. A. houselio~d~r ~ g ~ . a ~ a s t a ) must procure many sons for the purpose of

p e r f o r m ~ n ~ good acts, such as p i~gr~mage to Gaya, and other cere~onies, so that he

and his ancestors may obtain bliss.

'' ' A vakyam or phrase in the above said Parasarla ~ a d h a v i y a ~ , and the tests

in MaIta ~ ~ ~ a r a t ~ ~ . - A inan who has only one eye is like one without eyes ; and a mail

with only one son is like a man who is sonless. Thus i t is said by persona acquainted

with vedas and sastras. Bence the existeiice of an only wn i s [Sg] not la matter of

a conside~ation, and many sons should be obtained.

'' ' Text in the law-books, Smriti Chandr~ka, Dattaka ~ ~ m a m s a , D a t t a k ~ Chand-

rika, and others.-In the CaXi Yuga, or in this age, the son of the body and the son

adopted have been principaIly recognised. Therefore, many sons may be adopted,

in the same ~ a n n e r as many sons of the body may be ob~ained.

'' ' Texts in the Nanda Pandita, Dattaka ~ ~ m a m s a , &e., law-books.-" A child-

less maD should adopt a aon." According to a tegt in the Maha p ha rat ha, '' A man

who has only one son is considered as a childless man,"' By the texts, therefore,

when it i s said that a ch~ldless man may adopt, is clearly meant, that either a malt

who has an only son, or no son, should adopt one.

" ' By the vedas, as well as the sastras and pooranas, it is known that V ~ s ~ a x n ~ t ~ a

~ a h a Rishi and others, adopted sons, while they had many sons of the boay. In the

said ~aw-books, Nanda Pandita and Ifattaka ~ i m a n ~ s ~ , it i s declared, that a nittii

who has sons of the body, may adopt a son with the ~noomity, or consent, of the

son of the body.

(' ' By the texts in the Ifattaka Chandr~ka, anoomity implies what i s not espresdy

opposed to the power of adoption. A man who has many sons of the body may adopt

a son with their consent ; but a man who has only one son, being considered as child-

less, may exercise d~scretion in adopt~ng a son, w~thout requiring the conse~t of his

only son.

(f ' A v a ~ y a m of ~ a r ~ c h ~ in t e ~ a y a - b ~ ~ a g a , in the law-book.of ~ a r a s w a t ~ ~ i l a s u i ~ ~ ,

clearly declares that a man who has an only son ought to adopt a son.

[c;ol son may be adopted while a son of the body (who has preference to an adopted son) is alive. It may, therefore,

be undoubted~y inferred from the sastras, that a second adoption may be made

while another adopted son (who has no pre~erence) ia alive.

" ' Tests in Dattaka ~ i ~ a ~ s a , Dattaka ~ h a n d r i ~ a , etc., l aw-b~ks , as well as

the text of ~atyayana , and vakyam in Smriti Chandr~ka.-An adopted son loses the

right of filiation, as well as all right to the property of his natural father, by his

act of giving him up, and gains those of his adoptive father, by his act of taking

him. After the performance of the prescribed ceremonies, according to the fore-

going sastras, a second adopt io~ i s as valid as the firat.

<' 'The said text of Catyayana dec~ares, that as the righk of a wife shall be recog-

nised by marriage, ao fiball &e right of a a adopted son be by the act of giving and

taking, and perform~ng other c e r e ~ o n ~ ~ ; therefore, the second adoption made

(while one adopted son is alive, without fault) is valid, in the same ~ a n n ~ r as the

second ~ a r r ~ a g e , made with the desire of getting more sons, while the first wife

conducts ers self properly, and is m o t ~ e r of sons.

622

I, therefore, write this for your inforrnation.'

'

' I n the above books it is declared, that

ATUHAMA 'U. RAMANADHA B64B00 [1846] IV XOORB IND. UP., 61

+' ' By the above-said, and other authorities of Hindoo law prevalent in the pro-

vinces subject to the Madras Presidency, it is dedared, that the benefit of adopting

a son is two-fold : first, to relieve a father from the debt due to ancestors, so that he

may be relieved from hell; secondly, to raise up a progeny for the performance of

good acts for the attainment of bliss. A person adopting only one son will attain

the first benefit, while one adopting many will attain both the [61] first and second

benefit.

*' ' Under these grounds the second adoption, mentioned in the question, is good

and valid, according to the authorities of Hindoo law, prevalent in the provinces

subject to the Madras Presidency.'

" ' Question-You are required to state, whether a person of the Soodra tribe,

having adopted a son, and that son being alive, and riot disqualified by degradat io~~

or any other cause, is competent to make a second adoption; and whether the son

so adopted has equal rights with the son first adopted.' To this the Pundits, Jyah

Sastri and Vadapoory Vajapeya Yajier, returned the following answer :-' A persoii

of the Soodra tribe, having adopted a son, and that son being alive, and xiot dis-

qualified by degradation or any other cause, i s competent to make a second adoption,

for the purpose of propagating the family, and for the purpose of obtaining salva-

tion, both for himself and for his ancestors, by travelling to Gaya and p e r f o r n ~ i n ~

good acts ; and the son so adopted has equal rights with the son first adopted.

" ' Autharity.-In the law-book, Parasara Madhaviyam, and in the co~~nientary

of Vijnyaneswara, etc., the text in Lohita Smriti and Hurrna Puranam, many sons

are to be desired, that some one of them may travel to Gaya and perform ceremonies.

In the law-book, Saraswati Vilasum: The phrase of Marichi-A man who has only

one son may adopt a son. In the commentary of Vijnyaneswara: The phrase of

Balam Bhatta-Other sons may be adopted, although an only son of the body, or

only one adopted son, be living; that is, as many sons as may be requisite for the

purpose of completing the ceremonies prescribed by sastras. [62] In the law-book,

Dattaka Chandrika, and in the commentary of Vijnyaneswara, etc.: The text of

Nenu-If a man has many gonna putras, or adopted sons, they have equal rights to

his property.'

" And the Court having called upon the Pundits for a more full explication of

the grounds on which their opinion was founded, they delivered the following

answer : -

'' ' In clauses nine and ten, section i., of Rattaka Chandrika, of Revanda Bhatta,

'' Of the substitute sons of eleven descriptions, the son given only is recognised as

admissible in kali age for adoption." Hence i t follows, that the peculiar object of

the author in this treatise, is to treat upon the subject of adoption, of a son given

alone, as therein mentioned' (the rules relative to the adopted son are now pro-

pounded); ' although in the course of c o m ~ e n t i n ~ upon the subject, the ordinary

rules relating to the other descriptions of substitute sons unaviodably creep into it,

by quoting the text of authorities.

*' ' In clauses eight and nine, section v., of Dattaka Ghandrika, which treats of

the adoption of given son alone, as above intended, i t is ordained, Henu, " If there

be many equal, in respect of virtue or quality (i.e. coming immediately under any

one of the said eleven descriptions}, let them participate equally the estate."

" ' Thus, for instance, if a person had many legitimate sons, or many sons given,

or many sons of the soil, or those of the other descriptions, they are to participate

in equal shares. As it is not here the peculiar object of the author to enact any

provisions to regulate the extent of shares to which substituted sons of any other

descriptions than that of given sons would [63] be entitled, it is therefore deducible,

that the true intention and meaning of the author, by quoting the passage in ques-

tion, of Menu, the original founder of law, was certainly to regulate the shares of

many given sons of a person. Had the adoption of more than one given son been,

in the opinion of the author of Dattaka Chandrika, inadmissible, he could not have

quoted the passage of the famous Menu, and the original text itself of Menu could

not in that case be considered in any wise useful.

" ' As an equal parti~ipation of estate, by many sons given, is regulated above,

and as the author of Dattaka Chandrika had not, in any passage of the work, for-

bidden the adoption of a second son given, and as he had not contradicted the

623

This is the fixed rule of Dharma Sastras.

lV ~~~ KRD. APP., 64

opinions of the codes V i ~ n y a n ~ w a r a , Vyakya~~a, Saraswati Vilasum, etc., which

are, by general acceptance, declared as works of paramount authority in South

India, and which sanction the adoption of many sons given, i t is c ~ e a r l ~ evident,

that the practice of adoption of given sons more than one i s recognised by the

author.

" ' The ~ e a n i n g of the clauses three, four, five, six, and thirteen, section i., of

the treatise, Dattaka ~handr ika , and the clauses three, four, five, six, seven, nine,

ten, and eleven, Beetion i., of Dattaka ~ ~ m a m s a , which enjoin that " aputra '' (de-

scribed in clause four, section i., both of Dattaka Mimamsa and ~ a t t a k a Chandrika,

one to whom no son may have been born, or whose son may have died), only should

adopt a son, is, according to the true intention of the author, and the true principles

of law, to be defined to be a person destitute of a legit~mate son, who only intends

to adopt a given son. But this passage could not be justly considered as a prohibi-

tion against a person already in 26411 possession of a ~ e g ~ t i m a t e issue, wishing to

adopt a given son. This point is very clearly treated upon, and decidedly eatab-

lished, in the chapter of adoption of Vijnyaneswara, ~ y a k y a n a , etc.

" ' It i s expressly ordained in the laws, that the adoption is sanctioned for two

peculiar purposes: the one for the sake of funerd cake, water, and solemn rites,

and the other for the sake of mu~tip~ying his progeny, and obta~ning t t e perforni-

ance of ~ya-v-arjana} etc. I n clause three, section i., of both Dattaka ~ i m a m a s a

and Dattaka Chandrika, it is i n c u l c a t ~ , that; when the adopter i s destitute of a

~ e g ~ t ~ m a t e son, and w~shing for attainment of the funeral cake and water, and

sofcrnn rites only, he should adopt a given son ; but the passage does not in any way

prohibit one that is anxious of multiplying his progeny, against his adopting given

'sons more than one. In the codes Vijnyaneswara, Vyakyana, etc., it is decidedly

ordained, that a person wishing to multip~y his progeny shall be a t liberty to adopt

many sons given. For these reasons, it appears by the clauses eight and nine,

section v., of Daktaka ~ ~ a n d r i k a , that the author of it is likewise of the same

opinion, that a person wishing to m u ~ t ~ p l y his progeny may be a t liberty to adopt

many sons given, because he had therein expredy regulated the shares for many

given sons adopted, without stating any arguments to refute it.

" ' If it is doubted to have been otherwise, it mill not then only prove such part

of his s t a ~ m e n t , in clauses eight and nine, a relate t o the shares of many given

sons, to be entirelr useless, but will also produce a material contradiction t o the

original text of the eminent Menu, and other paramount authorities; for i t i s a

fixed, s t a n d i ~ g ~ undev~abl~ rule of the 18x7, according @&] to the au thor j t~ of

Vrihaspati, that any passages which may appear contrary to those of the original

founder, Menu, are undoubtedly ~nadmissible.

" ' In clause eight, section iv., of Nanda Pandita, Dattaka Mirnamsa, it is stated,

by S a ~ n t a n u ~ " He who has only one son, i s considered by me, destitute of male

issue "; and aIso in clause twelve, section i., of the same treatise, it is indicate^,

that a man possessed of male issue may adopt another son, with the consent of

such issue. In clause eight, section i., and clause twenty, section iv., it is declared,

that "the giver of a son, to one who has issue, commits a sin; this prohib~tion

regards the giver only.)' From this it clearly shows, that the person who adopts a

given son, having already his own issue, is not forbidden. This position is de-

cidedly ~ t a ~ ~ i s h e d in the treatise e n t i ~ e d Sri Rama ~ a n ~ ~ t a ~ a t t a ~ a i m ~ m s a ,

and Dattaka ~ o w ~ t ~ ~ h a ~ ~ etc., treatise^ which are confined to adoption only, and

held in estimat~on in South India.

"'In Dattaka M i m a ~ ~ s a of Nanda Pandita, Sri Rama P a ~ d ~ t a , Dattaka Xi-

mamsa, etc., it is declared, that the person who gives his son in adoption to another,

*ho has a legitimate son of his own in existence, commits a sin. This prohibit io~

i s justly restricted and applicable to a person who gives his own son in adoption to

another ~ o s s e s s i n ~ a legitimat% son only; but the person who gives his own son in

adoption unto another, already possessing a son given, does not commit sin, for the

following reasons:-It is dc?clared in clause three, section vi., and in clause six,

section v., that i f a person adopts a son given while his own legitimate son exists,

the ~ e g i t i ~ a t e son succeeds to tho paternal property, to the utter exclusion of the

son given, s u b ~ ~ t ~ i n g himself to the affordix~~ of the maintenance to [66] the latter ;

cmd in this case, the son given will not only be deprived of par t~oi~a t ion of property

624

RUNGAMA 'U, ATGHAMA-

A ~ C ~ A ~ A 'U. A ~ A ~ A ~ ~ A BABOO ~1~ ~~ IV RE I ~ R ~ ~ P . , er

of his natural father, but will also be excluded from any share of the property of

I& adoptive father: the natura^ f a t ~ ~ e r therefore corn^^^ a sin. For this very

reason, in order to provide a share for such adopted son, the person who possesses a

l e g i t i ~ a t e son, and wishing to adopt a given son, is r e q u i r ~ to obtain the consent

of his legitimate issue, as orda~ned in clause twelve, section i., of Dattaka ~ i m a m s a .

(' ' But if a person gives his son in adoption to anot l~er~ who already possesses a

given son, both of the given sons are e n t i t ~ e ~ tm equal partic~pation of the pro pert^

of their adoptive father, as specified in clauses eight and nine, section iv., of Dattaka

~ ~ l a n d r i ~ a ; and the p e r ~ n who gives his son in a d o p t ~ o ~ does not in this case

commit any sin at ail.

" ( It is , therefore, adm~ssib~e, that the author of the ~ a t t a k a ~ ~ ~ a ~ s a also has

concurred with the foregoi ion, that one who wishes his progeny ~ u ~ t i p l ~ e d ,

may adopt a given son, a he has already been in possessio^^ of onc of

the same kind.

" ~ h i ~ s t in clause twelve, section i., it i s provided that if. person having a legiti-

mate son may adopt also s given son with his consent, it is clearly evident that a

person already having an adopted son may adopt another given son. This opinion

is supported by various e ~ ~ n e n t au horities.

'( ' As ~ a t t a ~ a h a n d r ~ k a i s a eoncise treatise, points have not been treated upon

in full 1eng:h ; and ~ & t t a ~ ~ ~ i m ~ m s a , ~ o t w ~ ~ ~ s t a n d ~ n

with ~ncons3stenci~, in some points, and in others the

and erroneous. This ~nference may be ~ u s t ~ ~ e d on refe

pr~nted ~ n g l ~ s h t r a n s ~ a ~ ~ o n of the treat~ses ;n ~ a ~ y 16TJ~ o ~ n ~ s conta~ned in these

treatism having been clearly argued upon, some rejected, and others ~ o d i ~ e d and

better construed, by &e famous Balam Bhattiya and ~ijnyaneswara Yyakyana, etc-,

of p a r a ~ ~ ~ o u n t au~hor~ ty . Besides this, there are man^ other similar treatises, ex-

c~usively on adoption, n a ~ e l y , Sri Bama ~ a n d i t a , ~ a t t a k a ~ ~ m a ~ s a , ~ a d l ~ a v ~ y a m ,

~ a t t a k & ~a tnaca ra , Dattaka ~ ~ w s t a ~ ~ a ~ , etc., of equal e s t ~ ~ a t ~ o n ; and therefore

in e ~ p o u x ~ d i ~ ~ the meaning of Dattaka ~ a n d r i ~ a , it i s a~so~utely necessary that all

these treatises, as well as the original codes in high estimat~on, such as ~ e n u , S m r ~ t ~ ,

~ ~ ~ ~ ~ y a ~ ~ e ~ w a r a , its com~entary,Balam Rhatt~ya, Yarad~rajeyem~ Saraswati Vila-

sum, ~ a d h a v i y a ~ , etc., should be imariably referred to, before d e t e r m ~ n ~ n ~ to

form an OF~R~On~ but a mer0 refere~ce to ~ a ~ t a ~ a ~ ~ i a n d r ~ k a and ~ a t t a ~ ~ Mi-

~ a m s a , alone, could nut be su~c ien t , for the various reasons above stated,

'' ' It is hoped tha%, upon a mature de~~beration of the parti~ulars stated in this

~~ iemor~ndum, the answer formerly given to the ~ u e s t ~ o n referred to us, on the

occas~on, will be found ~ a ~ t h ~ u ~ ~ ~ correct, and ~ u s t ~ ~ founded upon the true prin-

ciples of 1avo.'

"The Court observes, that the same doctrine i s ~ ~ a i n t a i n e d in the case of

~ ~ o ~ e e ~ e ~ s ~ ~ ~ &i v. ~ ~ ~ ~ ~ 1 , ~ ~ ~ ~ ~ ~ ~n~~~~ (2 Ben. Sud. Dew, Rep., 136); and no

decjs~on or text of ~ i n d o o law, of ackRowledged auth has been b r o u ~ h t to

their notice, which declares such a second adoption t~ be

" The Court have, thei'efore? no hesitation in dec id in~ in favour of the claim of

aman an ad ha, to all such rights as devolve upon him, under the c i r c u ~ ~ ~ t a n c e s of

this case, as son of the iate Venca~adr~ , thereby setting aside the decree of the Pro-

vincial Court,

This decisio~ conveys, according to the ~ ~ n d o o law, to ~ a ~ a ~ ~ a d ~ ~ ~ , the

right of success~o~ to a moiety of the estate, real and person&, of his adoptive father ;

and with the view of a s c e r t a i ~ ~ n g the rights of the parties, respectively, to succeed

to the property of the first adopted son, ~ a ~ a ~ a d h a , oonst~tut~ng the other moiety of

that. mhte, the Court put the fol~ow~ng q u e ~ ~ o n s to their ~ ~ n d o o ~aw-o~cers:-

" ' A., a, Z e ~ ~ n d a r of the fourth class, had two sons, B, and G, ; some years before

his death, he executed an ~ n s t r u ~ e ~ t in wr~ting, d e c l ~ r ~ ~ ~ each of his sons entitled

$0 8 moiety uf his p r o ~ e ~ y , ~ ~ e ~ ~ ~ e and j ~ ~ o ~ e ~ b l ~ ; he aho put them r e s p ~ t ~ v e l y

in posses~ion of their shares of his landed estate; but the payme~t of the public

rePevenqe, on the whole ~emindary , continued during A.% life to be made by him ; and

other acts of ownersh~p, such as granting leases, in like manner were p e r f o r ~ e d by

A. up to the period of his decease, at which time he executed, in wr~ting, another

i n s t r u ~ e ~ ~ , c o n ~ r ~ ~ n g the equal distribut~on of his real and personal estates be-

626

''

IV MOORE IND. UP., 69 RUNGAMA 'U. ATCHAMA--

tween B. and C. ; no division of the personal property was, however, actually made

at that time; and shortly after A.'s death, B., the eldest son, took possession of the

whole of it, and of a portion of the lands which had been allotted to C., who thereupon

instituted a suit to recover his moiety of the real and personal property; but before

the suit was finally decided, B. died, leaving two widows without issue.

'' ' You are required to state-Whether, under the foregoing circumstances, c.

is entitled to succeed as heir to B., in preference to the widows of B., according to

the Hindoo law, as prevalent in the Madras territories.'

[69] " To this question the Pundits have returned the following answer :-

" ' In the Dharma Sastras are declared two periods of partition, Jivad Vibhaga,

or partition during the lifetime of the father, and Ajivad Vibhaga, or partition

after the death of the father. Jivad Vibhaga is the partition made between the

father and sons, during the lifetime of the father, according to the text of Yajnya-

walcya, in clauses first and second, section ii., Chapter I., in the Mitacshara, Daya-

bhaga, and according to the text of Catyayana, in the chapter on Jivad Vibhaga, in

the law-books Smriti Chandrika, etc.

" ' If partition had so taken place between the father and sons, they would have

severally gained a right and ownership in their respective shares, to dispose of the

same by gift, or sale, or to pay and receive income and expenses, etc.; but they

would not have a right or ownership in the shares of each other. Therefore each of

them is competent to hold and enjoy, separately, the possession of his share, and

can do all acts of ownership, such as granting leases, or receiving and paying income

and expenses, without the consent of the other, or without intermixing his share with

that of the other. If the father and sons have, as aforestated, made a partition

between them, and managed their affairs separately, it could be concluded that

Jivad Vibhaga, or partition during the lifetime of the father, had taken place.

'' ' Although A. the father, as mentioned in the question, had executed instru-

ments in writing, and put each of his sons in possession of a moiety of his landed

estate, yet i t appears from the question, that he retained in his possession the whole

of his personal estate, and continued, during his life, to perform all acts of owner-

[7O]-ship, such as granting leases, etc., appertaining to the whole Zemindary, which

was already put in possession of his sons. As the said A. did not relinquish the

right and ownership he had in his real and personal estate, but reserved the same

to himself, it,appears that the said instruments were executed by him, for the pur-

pose of making known the manner in which his sons should make a division of his

property after his death, and that no division was made by him during his life.

Therefore it is conclusive that B. and C. lived as an undivided family, up to the

period of A.'s decease.

" . As, after A.'s death, B. took possession of the whole estate, without dividing

snd giving property to C., agreeably to the instruments executed and lcft. 1 ) ~ i l i a

father, and as B. died before the suit instituted by C. to recover his share was finally

aecided, it is conclusive that B. and C. lived as an undivided family 1'1' i'; t l i .2 iJcrio.1

of B.'s decease.

'' ' Under the foregoing circumstances, and as B. and C. lived as undivided

tmihers when B. died, leaving two widows without issue, the said C. IS entitled to

wcceet i its heir to B. in preference to the widows of B., aa~coi.din,a LO the saetras

yrwalent in the Madras territories.'

'' It appears from the above exposition of the law, that, unc?tAr the ciicunlstances

of this case, Ramanadha and Jaganadha are to be considered 3s undivided brothers ;

and no point of Hindoo law is more clear than that, according to the authorities

prevalent on this side of India, the widow of an undivided brother has no right to

her husband's property, which goes in preference to his brother.

" Adopting, therefore, the declaration of the law of the case, given by their lam-

officers, the Court, [71] reversing the decree of the Provincial Court, adjudge that the

Appellant, Ramanadha, is entitled to succeed to the entire estate, real and personal,

of the late Vencatadry ; and, under the circumstances of the case, the Court directs

that the parties in the Appeal should pay their awn costs respectively.

" The widows of the late Jaganadha, being thus pronounced to be, by the Hindoo

law, excluded from inheriting their late husband's property, the Court, with the

view of preventing future litigation, rewlve to adopt the precedent establislled in a

626

ATClrrpMA 21. RAMANADRA BABOO 1118461 IV BOORE IND. UP., 72

similar case, by the decision of the Sudder Dewanny Adawlut in Calcutta, in

. ~ ~ ~ $ ~ ~ Bheelao v. Pfmd Chwzd (3 Ben. Sud. Dew. Rep., 223). In that case it

was decided, that where the widow of a Hindoo is excluded by law from inheriting

her h u s b a n ~ s property, the Courts are authorized to fix the amount of niaiiitei~~~iice

receivable by her, from her husband’s heirs, with reference to the circumstances

of the family.

“ And the Court, proceeding upon this principle, do further decree that

ltainanadha, and his heirs, shall pay to each of the widows of the late Jaganadha,

Atchama and Rungarna, the sum of R. 500 per mensem, as maintenance, during the

term of their lives, respwtively ; such payments to be made with interest at the rate

of one per cent. per m ens em, from the 28th of February 1825, the date of the decease

of the late Jaganadha, to this date, deducting therefrom such sums, wi th the saiiie

interest thereupon as may have been paid since that date to Atchama and Runpania

from the income of the estate.”

From this decree, Rungama and Atchama respectively appealed to Eer Mujesry

in Council.

[72] Mr. Kindersley, Q.C., Mr. Buller, and Xr. Jackson, for Eungania and Lutch-

nieputty, Appellants i n the first Appeal.-~~iis is R case of‘ great importance, uot

merely on account of the large property a t stake, a b u t S90,OOO a-year, but also f ronk

the questions of Hindoo law, which are involved in it, and upon which much COIL-

flicting a u t h o r ~ t ~ exists. The princ~pai inquiries are :-First, To whom did the

estate of Vencatadry descend ; and, Secondly, Who is entitled to the successioii of

daganadha, his adopted son? The first question depends upon the formality of the

adoption of Ramanadha, by Vencatadry ; whether such adoption was perforriled

according to the cerenionies required by the Hindoo law, and if so, whether he could

be legally adopted, Jaganadha, the first adopted son of Vencatadry, being alive at

the time.

I. With regard to the first point, it i s contended by ~ a ~ i a I i ~ d ~ i a , that certain

forms aiid ceremonies were observed and performed, which Constitute a second

adoption. The adoption of Jaganadha by Vencatadry is admitted on all hands to

hsfe been strictly formal and legal; and it appears fronz the evidence, that, about

the year 1807, ~enca tadry m a n i f ~ t e d some desire to adopt another son ; i t i s also

admitted, that Ramanadha was for wveral years, and during his infancy, inain-

tained by Venc~tadry, and treated by him as his son ; but these circumstanc~s, alone,

will not establish a title to the share of the inheritance which Ramanadha claims.

The testimony of the witnesses produced by him is neither conclusive or satisfwtory,

as to the performance of the formalities requisite for an adoption; but, even admit-

ting such ceremonies to have been duly performed, we submit that, upon the prin-

[73]-c3ples of the Hindoo law, in force at Madras, which must govern this question,

that, during the lifetime of Jaganadha, the first adopted son, or his male issue, it

was not competent to Vencatadry to make a second adoption, so as to constitute hinr

a co-heir with the prior adopted son, and entitle him to share in the p e r f o r I ~ ~ ~ ~ ~ ~ e of

the funeral rites and other religious ceremonies jointly with the first adopted so11 ;

the right to inherit being co-relevant with the right to perform such religious cere-

monies. Though some doubts exist, from a conflict of authorities, upon the subject

of a second ado~)tion, the; better opinion, and, as we ~ a j n t a i n , t ~ ~ e weight of authority,

i s against such an adoption. The opinion of the majority of the Pundits, taken in

these suits, which the Sudder Dewanny Court adopted, were in favour of such second

adopt~on, principa~ly upon the ground, that neither the Dattaka ~ ~ m a m s a , nor the

Dattaka Chandrika, expressly forbid two successive adoptions, but that,, or1 the

contrary, from the provisions stated, with respect to a man with only one son of his

body, it is to be inferred that, in such a case, he might adopt another son ; and that,

as there is no real difference between a real and an adopted son, a man having an

adopted son may adbpt a second. These Pundits referred also to the Vijnyaneswara,

Qakyana, and the Saraswati Vilasurn, in support of, and as explanatory of, the

above texts. We submit, however, that these opii~ions are erroneous: they are

founded upon PL misconception of the passage; in the Dattaka Mimamsa. That passage

states, that “he who has only one son, is considered as destitute of male issue”

(sec. iv., plac. 8); as well also of the passage in ~ ~ g ~ ~ ~ , ~ ~ ~ (3 ~oIe~rooke’s Dig.,

p. 290~, that ‘‘ many sons are to be desired, that some of them may travel E741 to

627

The Appeals now came on for hearing.

Gaya,” which a p p ~ ~ e s only to natural sons, and to the case of a nian giving a son, not

to taking a second adopted son, while the first is living. It can only mean, a succes-

sive adoption, to take effwt, in the event of the failure of the existing issue. The

opinions of the Pundits of the Court below are not eoncIusive, and must be received

with great caution. 1 Coleb. Dig., p. vi. ; they are taken, under Eiladras Iteg. 11. of

1802, to enable the Court to consider the reasons and author~ties cited, so that, in

that respect, t h i s Court is in the swm0 c ~ n d i t i ~ n as the Court below. It appears that

some writers of eminence have d ~ s a ~ r ~ d ; J a g a n ~ ~ a t ~ a (3 Coleb. Dig., 289, 295),

for instance, inclines to hold a second adoption to be valid. The weight of authority

is, however, opposed to a second adoption, while the first adopted son is living.

Vivadarnava Setu, (Gentoo Code, by Halhed) ch. xxi., sec. is. Ordinances of Menu,

(by Sir W. Jones), ch. x., piac. 168. Uatt. &gin?., eec. i.,

plac. 6. 2 S t r ~ ~ ’ s Hindoo Law, 85. (2nd edit.)

Steele’s Law and Custom of the Rindoo Castes, 48, 52, 185. F. ~acnaghten’s Cons.

on the Hindoo Law, 146. 2 W. ~ a c ~ ~ a g h t e n ’ s Frinciples of the Hindoo Law, 200.

Note by Colebrooke, to the case of ~Tn.?-a~nee ~ ~ ~ e ~ ~ , v. ~ ~ ~ r ~ ~ ~ ~ r Rai (1 Ben. Sud. Dew.

Rep., 42).+Sir E, East: How was t h i s by the Roman Law, where adopt~on pre-

vailed?l---By the Roman Law, a nian having a natural son could adopt another,

The Emperor Tiberius, for instance, though he had a son, Drusus, adopted Ger-

~ ~ a n j c u s . No case can be found where such second adoption has been held valid, by

the Courts in India. In , S ~ ~ ~ ~ c ~ ~ ~ ~ e r nnd a ~ o ~ ~ ~ e r v. ~ ~ T ~ f f ~ ~ ~ Bibeh (ihid. 209).

it was held, by the [‘E) Sudder Court at Bengal, that there might be two successive

adoptions, under due authority given for that purpose, to the widows of the saxne

man. But that was a case of successive adoption, the first adoption having failed

before the second adoption took place; it is, therefore, essentially different to the

present case. Again, in ~ o ~ ~ e e ~ e r ~ ~ ~ a u ~ Rai Y. ~~~~ ~~~t ~~~u~~ ( 2 Ben. Sud.

D ~ K . Itep, 136), a childless Bindoo, h a ~ i n g two wives, gave permis~~on to each of

them to adopt a son ; after haSng himself adapted a son on behalf of the senior

wife, he ~ o n f i ~ ~ e d th p e r ~ i s ~ j o n r i g ~ n a l ~ y given to his second wife. It was held

by the Sudder Dmanny Court, at Bengal, that an adoption by her after he~husband’s

death was vaiid. This case, however, when e ~ a ~ i n e d , does not support the validity

of the second adoption : it is rather the effect of the second adoption by the husband,

revoking the authority given ta the wife to adopt, It has never been considered as

decisive of the law on this subject. On the contrary, it is treated as a doubtful case,

F. ~ ~ ~ ~ e ~ ~ a ~ h t e n ’ s Cons. on Bindoo Law, 182.

The p r i r ~ ~ i p l e of the Eindcm Isw, which is to be deduced from the ~ a j o r i t y of

these authorities, appears to be this, that where ~6 man has either a natural born son,

or M legally adopted son, living, i t is not competent to him to adopt another son,

so as to constitute him, in any sense, an adopted son, other than that he niay be a

s u b s t i t u t ~ son, to supply the place of the existing adopted son in case of the death of

that son. Such adoption is invalid, for the purpose of c o n s t ~ t u t i n ~ such second son

a co-heir with the first adopted son. That suck second adoption is also illegal, is

~ n a n i f e ~ t from the status, acquired by the first adopted son, by such act. According

to the Elindoo Law, a person in whose behalf the ceremonies of adoption have been

~ ~ e ~ . - ~ ~ 6 ] - € o r ~ ~ , can never claim to represent the family or inherit the estate of h i s

natural parents. I

Strange’s Eindoo Law, 101. (2nd edit.) 2 Strange’s Hindoo Law, 129.

(2nd edit.) Datt. Mim,, sec. vi., plac. &-[Sir E. East: An adopted

son inay tte considered in the light of a purchaser for a valuable con-

s~dera t~on, as he has thereby lost his ~ n h e r ~ t a n c ~ . 2 W. ~ a c n a g h t e ~ ~ ~ ~ r ~ n c i p l e s of

Bindoo Law, 183.]-Yes, and it i s $0 treated as settled law. Mitacshara, eh, i., sec, xi,,

plac. 32. The title of Jaganadha to the inheritance of Vencatadry was not affects3

by thi8 assunied second adoption. We suhmib that Vencatadry could not by

any second adoption, or by any other act whatever, defeat the effect of

the contract of adoption entered into between him and the natural parents of

~ a g a n a ~ h a , in consideration of which, he was cons~~tuted son and eole heir cf

~ ‘ e n c ~ t a d r ~ , and thereby cut off and deprived of all possi~ility of title of i n ~ e r i t a n c ~

from his natural parents.

Much stress is laid on the assumpt~on, that all due forms were used in the

adoption of Ramanadha j but assuming such to have taken place, the adoption being

invalid, i t had no effect on the right of Jaganadha, as sole heir : the s u b s ~ u e n t steps,

628

Sut~~erland’s S~nopsis.

Datt. Chan., sac. i., plac. 3.

~ ~ € € ~ ~ ~ . ~ ~ ~ . 8 h g v. Ajeet sing (1 Ben. Sud. Dew. Rep.? 20).

by -&ich i t was a t t e ~ p t e d t ~ i confer upon ama an ad ha a title to a portion of t&e

property after the decease of ~encs tadry , were absolute~y n€j~a tory and void.

There was no r ~ o ~ i t ~ o n of ~ a ~ ~ a n a d h a ’ s title, by Ja~anadha , when he came of age.

He can, therefore, claim nothing beyond such portions of property as ~enca tad ry

bad the power in law to d i s ~ o ~ e of, by an act, inter viuos, and a b s o l ~ t e l ~ c o n f e r r ~

upon him during his lifetime.

IT. In whom i s the right of s u c c ~ s ~ o n to Jagan~dha’s estate?, This ~ u e s t ~ c ~ ~ i s

one of great nicety : the @?] c ~ a ~ m a n t s are ~ a i ~ i a n s d h a , in his alleged character of

second adopted son and undivjded brother of J a ~ a ~ ~ d h a ; ~ u t c ~ ~ ~ p u t t y , the adopted

son Jaganadh~ c ~ a ~ ~ , his 5 ~ ~ ~ s widow, who s the whoIe estate of

~ e n c a t a d ~ y and J

~ s s ~ i n g the a d o p t i ~ ~ of ~ a ~ a n ~ d h a to be good, to const~tute him

co-heir with jag an ad ha^ the efeect of the s u ~ e ~ u e n t a p ~ o r t i o n ~ e n t and division of

the estate by Vencatadry c o ~ p ~ e t e l y severed their joint interest, and p r e ~ ~ n t e d the

i~ossibi€~ty of a mutual s u c c ~ s i o n ~ Ra-

~ ~ & n ~ d h a , therefore) wou~d only be entitled to such part of the property as Be was

put in possess~o~ of by V e n c a t ~ r y . Xf J aganad~a and ~ ~ i ~ i a i ~ ~ d h a had b e n un-

divided brothers, at V~ncatadry’s death, Jaganad~~a, s eldest son, PiouId in that

event have inher~ted, subject to the right of his brother living in ~ ~ ~ ~ ~ e n s a ~ ~ t y with

him, But the facts in the case show the contrary of this condit~on of things; the

first sct of ~ a ~ a n a d h a , after Vencatadry’s death) was to claim the share allotted to

ha, her ~ u s b a ~ d h ~ v i n g died

This is the effect of the a p p o r t i o n ~ e ~ ~ t .

widow, who is only entitled to ~ a i n t e n a ~ c e . The fact of the adoption of Lutci~nie“

putty by J a ~ a ~ a d h a i s estab~ished by the evidence, and i s ~upported by the necessity

which E783 exists for such an act, It was essential in the state of anadh ad ha'^

family. He had no ~ h ~ ~ d r e i ~ either by ~ t c h a ~ a (whom he had repudiated and lived

apart from), or by ~ u n g a ~ a , his favourite wife, The absence of the natural issue,

and the existence, as i t i s a~~eged, of ~phys~cal causes, ~ , e ~ ~ d e r ~ n ~ it ~ m ~ o s s i b ~ e that he

could have issue) t ~ e t ~ e r with the conse~uences, ~ n c ~ d e ~ ~ t , a c c o ~ d i n ~ to the Windoo

religion, to a maxi dying c h ~ ~ d ~ e s s , render the presumption of such adopt io~~ almost

c~nclusive. It i s laid down in the ~ a ~ ~ u ~ ~ ~ ~ u . ~ ~ ~ , sec, i., plac. 5, that heaven

cannot be obtained by a p er so^ desti tut~ of male issue : and again, that male issue

d e ~ ~ v ~ ~ the sod of the ~ ~ ~ e ~ ~ t from hell. ~ u ~ a ~ ~ ~ ~ chap. xi., sec. i., plac. 31..

d ust tom of ~ a s t ~ s , 48. These con a t i o ~ s would have ~ ~ d ~ e e ~

~ a g a n a d ~ & to seek for a mate ~ n f a n t o ado ; aud accord~ngly there is a b u ~ ~ d a n t

widence, that, in conjuncti~n with his wife ngama, he did adopt Lu tc~mepu t t~ ,

and duly performed the ~ ~ e m o n i e s on such occasion. Es f ~ r i ~ ~ I i y adopted him

in 1819. It was not essential that he should c o ~ m ~ n i c a t e such fact to the Goxrern-

me& authorit~es at the time of such a d # ~ t ~ o n . Almk ~~~~r~ v. Pa&:es. ~~~u~~

Sa&w (5 Ben, Sud. Dew. Rep., 356). ~uther~and’s Synops~s’ p. 2x8. ~~~0~~~~

notice of such an event i s sometimes given, it i s only to give publicity to the act,

He a f t e r ~ a r d s introduced such son to the Collector, as ibis son. Be was b r o ~ ~ ~ h t

up at J a ~ a ~ ~ d h a ’ s hou e, as his son. The ~espondents R a ~ a ~ a d h a and A ~ c h a ~ a

endeavour, hmever, to avoid the conse~uence of the adoption of ~ u ~ c h ~ e p u ~ t y ) i t

being des t ru~ t~ve of the t~~~~ they have r e s p ~ t ~ ~ e ~ y set up. They deny ttzat any

uaX. A t c h ~ ~ n ~ objects trs the ~~l~~~~~ of the, a d o p t ~ o ~

OB two g ~ ~ ~ n ~ ~ ~ first, if the c e ~ e ~ o n ~ e s w re p ~ r f ~ r e ~ ut her p a r t ~ e i ~ a ~ ~ o ~

and c o ~ c ~ r ~ ~ ~ ~ e e , a8 the s ~ ~ ~ o r wife, th07 %ere of no , and ~ e c o ~ d ~ y , that

~ u p p o s ~ n g her e~clusion from the partic~pation const~tuted no ob jec t~o~ , yet that

there being male children e ~ i ~ ~ ~ l e for a d o ~ t ~ o n in the ~ a s ~ ~ r e d d y family, ~ a g a ~ ~ d ~ ~ ~

could not legally adopt ~ u ~ c ~ m e p u t t y ) as he was of a d ~ ~ e r e ~ t ~ o t r u ~ l , or f ~ ~ ~ i I y .

l ~ a ~ a i i a d h a also objeata to i t s v a l ~ d ~ t y upon %Kits Xast gI,ou~~d. ~ e ~ t ~ e ~ of ijiese

oI~ject~ons can prevail. In the first place, the ado~t ion of a son being a duty

enjoined by the Hindoo religion for tbe s ~ ~ ~ r ~ t u a ~ welfare of the childless man, tilere

i s no authority to be found i n the ~ i ~ ~ d ~ o law which p ~ e c l ~ d e s him from ~~~~~~~~~

699

ever actuaUy p e r ~ o ~ ~ e d j or, if they were, they

IV MOORE IND. APP., 80 RUNGAMA V. ATCHAMA-

that adoption, without the consent or co-operation of his wife. Adoption is the act

of the husband alone; the wife’s assent is not requisite. 1 Strange’s Hindoo Law,

78. (2nd edit.) Alamk Mainjaai v. Faker Chand Sarkar (5 Ben.

Sud. Dew. Rep., 356). The wife may, if required, join in the performance of the

cerenionies of adoption, but the act is that of the husband alone. Here Runganla

did join in the performance of the ceremonies : the assent or co-operation of Atchama

was not required. The distinction between a first, or senior wife, and a second wife,

is one of caste only, not of seniority. But here

both the wives were of the Soodra caste, where no distinction prevails. In the

circumstances of the case, it was impossible to have obtained the concurrence of

Atchama, to the adoption. She was repudiated by her husband, and in a state of

hostility to him. The Hindoo

[So] law seems to have anticipated this state of things, and provided for it by vestiiig

the right absolutely in the husband. Neither can the other objection, assigned by

Ramanadha and Atchama, that there were eligible objects of the Vassareddy

family, which the law required Jaganadha to give a preference to in adopting, for

:ivoiding the adoption, prevail. Jaganadha was a Soodra, and SO was Lutchmeputty,

and might, by the Hindoo law, be the object of adoption, without reference to gotrum

01’ family. The only tenable claims are those

of the widows to maintenance.-[Mr. Pemberton Leigh : If Lutchmeputty’s title, as

adopted son fails, do you fall upon Jaganadha’s Will?]-Whether an Hindoo can

inake a Will, in the sense understood by an English testamentary disposition, is

still a mooted point. In Haboo Junokey Doss v. Bindaburn Doss (3 Moore’s Ind. App.

Cases, 175), this Court, without deciding in favour of a Will, made by a Hindoo

dorniciled at Benares, held that there were not the necessary parties to enable the

Court to make a decree. We do not rely upon the Will.-[Mr. Pemberton Leigh:

Supposing Lutchnieputty out of the case, you then claim for Rungama?]-Yes, she

and Atchama, as the two widows, would take as co-heiresses. The title of a widow of

a deceased Hindoo, without issue, male or adopted, is only to a life estate. Keeruf

Szny v. Koda.hul Sing (2 Moore’s Ind. App. Cases, 331), and the authorities there

cited. Mohun Lal Khan v. Ranee Siroomunnee (2 Ben. Sud. Dew. Rep., 32). The

Sudder Court’s decree, therefore, is altogether wrong, for they ought, if they re-

jected the claim of Lutchmeputty, to have admitted Rungama with Atchama, as the

widows of Jaganadha, to [SI] succeed equally to the property in question. F. Mac-

nrtghten’s Cons. on Hindoo Law, 6.

Mr. Wigram, Q.C., Mr. E. J. Lloyd, and Mr. Edmund F. Moore, for Atohama, the

Respondent in the first, and Appellant in the second, Appeal ; and also for the Re-

spondent, Puttoory Caly Doss.

I. To the extent of Ramanadha’s claim to the succession, the interest of Atchama

is concurrent with Lutchmeputty. First, The adoption of Ramanadha is not proved.

We take the arguments used on behalf of the Appellant Lutchmeputty, and insist that

such alleged adoption was insufficient and invalid. 2 W. Macnaghten, 200.

Secondly, If the adoption of a second son, in the lifetime of a son previously adopted.

could be valid by the Hindoo law, Vencatadry, by reason of the special contract, under

which Jaganadha had been given to him in adoption, was competent to make such

second adoption. The attempt to make a second adoption would be a fraudulent

evasion of this contract, and, as such, void. No person, therefore, claiming through

Vencatadry, could take advantage of such a violation of the original contract. By

the adoption, Jaganadha’s status became changed ; he gave up the inheritance to his

natural parents, and the rights which flow from that relation, and became. accordinz

to the Hindoo law, to all intents and purposes, the son of his adoptive father. How

then can it be argued, that i t is competent for Vencatadry, by a voluntary act, after

having placed Jaganadha in that position, to defeat his own act, and the just claims

and expectations of the adopted son? At all events, the second adopted son could

acquire no right of inheritance, to the prejudice [82] of the first. But even assuming

these positions to be untenable, we submit that Jaganadha and Ramanadha, a t the

time of the death of the former, were not living as undivided brothers. They had

separate possessions of lands and houses, Mitacshara, ch. ii., P ~ C . xii., plac. 1, 2, and

lived apart, which is a conclusive test of a divided Hindoo tamily. 1 Strange’s

Hindoo Law, 225, 227. A division of property having been made, that

3 Coleb. Dig., 244.

Dayu-bhaga, ch. xi., sec. i., plac. 41.

If she refused to consent, he would die childless.

Datt. Mim., sec. ii., plac. 18, 74.

(2nd edit.)

630

ATCHAMA v. R A ~ A N A ~ H A B BOO [1846] IV wrooRE Im. UP., 83

was all that the Hindoo law required, to make them divided brot~iers, go that no

mutual right of inheritance could subsist between them. The opinion given by the

Pundits, upon this point, waa upon a isr representation of the true facts of the case.

The Sudder Court, in p u t t ~ n ~ the qumtion to them, treated J a g a n a ~ a s having had

the whole estate, and suppressed the fact, that the division was perfected by Ram-

anadha taking possession and managing his share of the property. Rad the facts

b e n correctly stated, the opinion of the P u n d i ~ must have been the other way, and

the Sudder Court would have decided in favour of the division.-[Mr. Pemberton

Leigh : A question arises, whether Ramanadha’s adoption has not been confirmed by

Jaganadha’s acquiescing, after he came of age, in the partition made by his father,

-whether such c o n ~ ~ a t i o n is not equivaleiit to previous assent FJ-No implied

acquiescence could make such adoption legal. The partition by V e n c a ~ a ~ r y was

made on the p ~ s u m p t i o n that ~ a m a n a d ~ ~ a was well adopted, as the second son, and

so entitled to succeed, with the first son, to the estates of his father. The division

between them was made under the erroneous supposition of their legal rights, as

heirs of Vencatadry. It was not intended to create any new or independent right

on ~ a m a ~ ~ ~ - n a d i i a ’ s part. Jaganadha acquiesced in the division, to avoid his

father’s di~pleasure, for i ~ ~ ~ e d i a t e ~ y after his death, he claimed the whoIe estate, as

sole heir.

11. The alleged right of Lutchmeputty to succeed to jag an ad ha'^ estate, is not well

founded: the evidence proves that no such adopt~o~l, as he insists on, ever took

place. The story of the adoption is altogether incredible: what satisfactory ex-

planation can be offered for the long delay between Jaganadha’s death and the

starting of this claim?-[Lord Langdale: Rungama says she was a secluded woman,

and deceived by R a ~ a n a d h a . ~ T h e o w of proof is on ~ u t c h ~ e p u t t y : he must

prove that he waa adopted. The eTidence adduced in support of his adoption was

considered, by both Courts in India, unwort~iy of credit. The greatest strictness in

evidence is required to prove an adoption, in a Iiindoo family. ~ o o ~ r ~ ~ z ~ ~ ~ ~ ~ t t ~

v. Sabitra Bye (‘2 Knapp’s P.C. Cases, 287). The conc~usion of the ~ r o ~ r i n c ~ a ~ Court,

after a full and i m p a ~ i a l investigation, was, that, under the circumstax~ces, the

p r ~ u m p t i o n was against such adoption. It is impossible for any Court of Justice

to say which i s most conclusive, the ~ s t ~ m o n y of the Pla~ntiff’a or the ~espondent’s

w~tnesses, or to admit Mr. Roberts’s vague impressions to amount to proof. It was

no more than his impression of a circumstance: i t is no evidence of the fact. There

are two concurr~ng decisions in our favour, and the AppelIant asks this Court to

disturb these verdicts of the native Courts in India, made when the opportunity was

afforded of personally seeing and cross-examining the witnesses. A Court of

Common Law, in this country, would not grant a new trial, in such E843 circum-

stances; and this is the rule by which this Court has heretofore been governed : they

will not question the accuracy of the finding of the Native Courts, upon a mere

question of fact, unless there appears some clear distinct point, in which the Cpurt

was wrong; even though doubts may be enter~a~ned. &boo U h c k S k y v. Beag

Persad (2 Knapp’s P.C. Cases, 265). Such adoption would, however, if it had taken

place, be invalid in law. First. It could not be made without Atchama’s co~~currence,

It i s laid down in the Hindoo la~-books, that adoption should be in concert with the

wife. It is adm~tted by Rungama, that Atchama did not assent to it, and that she

only joined with Jaganadha, in the adoption. It is

said, however, that the concurrence of Atchama was impossible, for that she was absent

from her husband, and at variance with him. This is no answer. ~ o t h i n ~ short of

actual in~del i ty would deprive her of her rights, as a wife. 1 Strange’s Hindoo Law,

136. Then Lutchmeputty is taken from another gotrum or family;

that also would render his adoption invalid: there were boys of the Vassareddy

family, eligible to be taken in adoption, if required.

The claims of Ramanadha and itchme me putty being disposed of, A t c h a ~ ~ became,

~ c c o r d i n ~ to the Hindoo h w , and the custom p r e v a i ~ ~ n g in Madras, as the senior

widow of Jaganadha, who died without issue, entitled to succeed to all his estate,

both real and personat. She does not claim under the WiIl, made i n her favour by

Ja~ana~~a.-[Mr. Pembe~on Leigh : Does she take the estate absolute~y, or for life

on&?+-She has only a fife estate: &%em$ S k g v. ~~0~~~~~ S k g (2 Moore’s

fnd. App. Cages, 351). Rungama being the junior widow, her claim to participate

631

This was a fatal omi~ion .

(2nd edit.)

IV 1006B IND. AF F... 86 RUNGAMA /U. ATCHAMA-

with Atcdama, in the succession, is inadmissible. Her title, i f any, would be to

succeed a t Atchama’s death.

Lastly, The Respondent, Puttoory Caly Doss, was improperly diade a party to

the suit, and the Appeal ought to be dismissed, as against him, with costs. NO relief

was prayed against him, and the charges of confederacy and combination by him

with Ramanadha were unsupported by evidence. The sole object of making him a

Defendant was to shut out his testimony. In Attwood v. Small (6 Clk. and Fin. 233),

the House of Lords held, that it was a point which strongly prejudiced the claim of

the Plaintiff, because i t shut out evidence which ought to have been placed before

the Court.

Mr. Stuart, Q.C., Mr. J. Parker, Q.C., and Mr. Goodeve, for Ramanadha, Re-

spondent in both Appeals.-We contend that Ramanadha is entitled to the succession

of Tencatadry and Jaganadha. This claim is founded, first, as the second adGppted

son of Vencatadry ; and, secondly, aa undivided brother of Jsganadha His interests

are adverse to the claims of Lutchxneputty, and the two widows, Atchama and

Rungama.

I. It cannot now be contended, as far as ceremonies constitute adoption, that this

Respondent was not adopted by Vencatadry. His legal adoption was clearly proved

in the suit, instituted by him against Jaganadha. But the other claimants say that,

admitting that he was adopted, yet that a second adoption, in the lifetime of the first

adopted son, was an illegal act, [86] and of no avail ; and that, under the conditions

contained in the deed executed by Vencatadry upon Jaganadha’s adoption, he was

absolutely precluded from adopting another son, inasmuch as it would prejudice the

rights of Jaganadha. By the Hindoo law

and custoni prevailing in that part of India where the Vassareddy estates are situate,

a second adoption, by the great Zemindars, is allowed. The opinion of the Hindoo

law-officers, after a careful investigation, was decidedly in favour of the legality of

such adoption, and their exposition of the law was received and acted on, by the

Sudder Court. That Court came to the conclusion, that there was, de facto, an

adoption, and that Vencatadry had power, de jure, to make a. second adoption, though

in the lifetime of his first adopted son. Both Lutchin0putty and Atchama admit, as a

proposition, that Vencatadry might have adopted a second son ; but they say that it

could only be for the purpose of substitution, and not to make him a co-heir. It has,

however, been decided by the Court, in India, in Gooreepershaud Rai v. Mussummaut

Jymala (2 Ben. Sud. Dew. Rep., 136), that a man, having adopted a son, in concur-

rence with one wife, could legally authorise another wife to adopt a second son. So

in the case of Shamchunder and another v. Nwayn i f ibeh (1 Ben. Sud. Dew. Rep.,

209), a second adoption, in the lifetime of the first son, was upheld. This

principle of law is recognised by writers of established authority: 1

Strange’s Hindoo Law, 78 (2nd edit.), 2 Strange’s Hindoo Law, 85. (2nd

edit.) Colebr. Dig., 284, 295. As, therefore, the Hindoo law sanctioned such second

adoption, there was nothing in the [87] deed executed by Vencatadry, which

would incapacitate him from adopting ama an ad ha. The restrictive words are,

“ I have it not in my power, on any account whatever, to make the property to any

other person.” This instrument has no reference to the right of Vencatadry to adopt

another son. Now, the adoption of another son is not the making over the property

to another. Ramanadha, as co-heir with Jaganadha, from the time of his adoption,

had an inalienable and indefeasible right to the Zemindary property. This deed, in

fact, is a mere voluntary settlement.-[Mr. Pemberton Leigh: Is it a settlement at

all? Is it not a declaration of what he considered to be the effect of the adoption of

Jaganadha?]-When he adopted the first son, and made the deed, he no doubt con-

sidered him as his heir; but i t does not follow, but that there may be a co-heir

afterwards. Suppose Vencatadry, subsequently, had a son born in wedlock, what

would have been the effect of the deed? It would have been clearly inoperative.-

[Sir E. Ryan : As to the ancestral estate, he had no power of disposing of it.]-In this

case, there was acquired as well as ancestral property ; and the acquired property,

it cannot be disputed, he had power to alienate, in favour of Ramanadha. The

opinions of the Pundits are conclusive, that among the Hindoos, in case of a plurality

of natural offspring, all the sons possess a joint right of succession, which, on failure

of an effectual division, devolves on the survivors, in the same manner as a joint

tenancy in England. Adoption places the party on the same footing as the natural

632

Neither of these objections can prevail.

XTCHAMS ?.I RAMANADHA BA3300 [ f 8461 IV PnOoRE INB. APR., 88

offspring of persons adopting. The legal effect of the adoption of Ramanadha was

conferring on him, conjointly with ~aganadha, the right of succession to the whole

pro-[~]-perty, ancestral as well as acquired, of Vencatadry, their adoptive father.

In case, therefore, of the death of the first adopted son, in the other's lifetime, Rama-

nadha, as the survivor, would succeed to the entirety, being the representative both

of his adoptive father, and also of his brother. The course pursued by Jaganadha,

when he came of age, in acquiescing and recognising Ramanadha's adoption, made it

fraudulent for him now to raise a claim inconsistent with his former conduct. He

treated Ramanadha as his brother, and as such entitled to half the property.

11. Jaganadha and Ramanadha were undivided brothers, and upon the death of

Jaganadha, without children, Ramanadha would take the whole estate, to the exclusion

of Atchama, But independently of his title, by survivorship, Ramanadha was en-

titled to that portion of the Vassareddy property which was allotted to him by the

settlement made by Vencatadry. The proposition of the Appellants is, that, ad-

mitting Ramanadha was a brother, they became, by the acts of their father, and

their own Concurrence, divided brothers. We admit there was an allotment, but that

did not amount to such a division as is required, by the Hindoo law, to constitute them

divided brothers. The Judgment of the Sudder Court is founded upon the opinion

of the law-offfcers, with reference to the acts of Vencatadry, in his lifetime, and the

arrangement of hia property,-acts, however, which a re insisted upon by the Appel-

lants, as showing that they were divided brothers. This is upon a misapprehension

of the principles of the Hindoo law, as applying to the facts of the case. The

arrangement made by Vencatadry amounts to no more than an agreement to divide ;

but an agreement to divide property is not effectual, unless the agree-[89]-ment be

executed by an actual division. Ramanadha could not be bound by it : until ha got

possession of his share in severalty, he was not a divided brother. It was an executory

agreement only. Such division should have embraced the whole property; and i f

there was reserved a part of the property, subject to the rules of inher~tance, HS

between the two brothers, that is evidence that they were undivided brothers.

Independently of his title, by adoptim or survivorship, Ramanadfia i s entitled

to that portion of the Vassareddy property which u'aa allotted to him under the

settlement made by Vencatadry. He is, moreover, the nearest relation to Vencatadry

and Jaganadha ; and, as such, entitled, by virtue of ridationship, to the succession.

We do not rely upon the Will made by J a g a n a ~ a , in his favour: for the whole

inheritance devolved upon Ramanadha. The claim of ~utchmeputty, a8 the adopted

son of Jaganadha, is without foundation. It was clearly established by the evidence

in the suit, that he was not adopted by him. Even if proved, it was illegal, under the

circumstances of the case, and particularly by reason of the want of concurrence by

Atchama, to confer on ~utehmeputty any right of succession.

Mr. Kindersley in reply.

The Right Won. 2'. Pemberton h i g h (Feb. 29, 1848).-l'he question in these

Appeals relates to a very large property in the Northern Circars, which, in the year

1798, belonged to a Zemindar, named Vencatadry.

~ e n ~ a t a d r y ~ being childless, on the 2nd of April 1198, adopted, a8 his son, a boy

named Jaganadha. On this occasion he signed a paper, bearing date the [go] 7th of

April 1798. I n this paper, after reciting the adoption, he proceeds to say, '' There-

fore, be it believed, that I have executed this, my tutelar deity bearing witness, that

~aganadha Naidoo is huckdar, or heir, to my Zemindary, mirasy, to my wealth and

debts ; and that I have it not in my power, on any account whatever, to make over

(the same) to any other person besides him (Jaganadha Naidoo)."

He afterwards

became desirous of adopting another boy, named Ramanadha, and of dividing his

property between them. It is said by the Appellants, and many witnesses have

sworn, that he consulted certain Pundits, as to the validity of a second adoption,

and was advised by them. that a second adoption could not be legally made.

It was contended by the Appellants, that upon the whole rvidence it was to be

inferred that, in consequence of this opinion, although he brought up ~ a ~ a n a d ~ a

as his son, he never adopted him with those religious ceremonies which were necessary,

in order to constitute a valid adoption, according to the Hindoo law. We have no

633

Of the fact, or the validity of this adoption, no question is made.

I V MOORE IND. APP., 91 ~ ~ ~ ~ A ~ A 'U, ATCHAMA-

doubt, however, that he did whatever was necessary to constitute a valid adoption,

if such second adoption could, by the Hindoo law, be valid.

Various steps seem to have been taken by

I'encatadry, during the minority of both these boys, with a view to divide his

property between them.

In 1815, Jaganadha attained the age of eighteen, when, by the Hindoo law, he

came of age. After this, in 1816, Vencatadry made a new division, between his two

boxis, Ramariadha being still under age, and, as it seems, about nine years old.

Jaganadha took posses-[91]-sion of the property so allotted to him; and Vencatadry

seems to have remained in possession of what was allotted to Ramanadha. In the

course of the year 1816, Vencatadry died. Jaganadha claimed the whole of the

property of liencatadry, alleging that the adoption of Ramanadha was invalid, and

at all events did not constitute him a co-heir.

Much dispute took place upon this subject, and various proceedings were had

before the Board of Revenue, which had seized a large portion of the property, for

payment of arrears of revenue. Suits were instituted for the purpose of determin-

ing the rights of the parties, into the particulars of which it is not necessary to

enter.

The first of the suits, now in controversy, began in 1820, being a suit inst~tuted

by Rainanadha against Jaganadha, to establish his right to that portion of the

property which had been allotted to him in his character of adopted son, by

Vencatadry.

In 1824, a decision was pronounced against Ramanadha, from which, however,

he appealed j and before the appeal had been heard, and on the 28th of February

1825. Jaganadha died. He left no natural born issue, but two wives, Rungama and

Atcltaum, arid a boy who had been brought up in his house, and who is said to be his

adopted son, named ~ u t c ~ e p u t t y .

The question then arose, who was entitled to succeed to the estate of Jaganadha ;

the question of what the estate of Jaganadha consisted, that is, whether he was

entitled to the whole, or only half of the estate of Vencatadry, still remaining un-

~ettled. With respect to the right of succession to Jaganadha, it i s [a] not disputed

that, if he left a son, whether natural born, or legally adopted, such son would be

entitled to succeed. That if he left no son, but an undivided brother, such brother

would be entitled to succeed. That if he left no son, nor undivided brother, the

widow, or one of the widows, would be entitled to succeed.

On the death of Jaganadha, Ramanadha set up a title to the whole estate of

Vencatadry, alleging (not very consistently with his former claim), that he and

Jaganadha were undivided brothers, and that Jaganadha had left no issue, natural

born or adopted.

Rungama at first acquiesced in the claim of Ramanadh&, i t being alleged by

her that she was deceived by Ramanadha, who got authority to act fos her, while

it is alleged by other of the parties that she colluded with him.

Lutchmeputty was a child of about six years old, and no claim was brought

forward on his behalf. Atchama, however, instituted a suit, claiming the whole

of the estate of Jaganadha, and insisted that she was entitled to inherit. After-

wards, Ramanadha and Rungama having quarrelled, the claim of 1 , u ~ h m e p u t t ~

was advanced. After long litigation, with various fortune, in the Indian Courts,

the Sudder Adawlut decided that Jaganadha and Ramanadha were undivided

brothers ; and that Lutchmeputty was not the adopted son of Jaganadha ; that con-

sequently Ramanadha was entitled to the whole inheritance which had come from

Vencatadry ; and against this decree the present appeals are brought.

The question for our decision relate, first, to the estate of Vencatadry; and.

secondly, to the succession of Jaganadha.

[93] The conflicting parties are,-First, ~ u ~ h m e p ~ t t y , who claims the whole

inh~ritance which came fram Vencatadry, on the ground that Jaganadha was the

only adopted son of Vencatadry, and that he, Lutchmeputty, is the adopted son of

Jaganadha. Secondly, Atchama, who insists that Lutchmeputty was not well adopted,

and that she, as eldest widow, is entitled to succeed to the inheritance of Jaganadha.

Thirdly, Rungama, who maintains the case of Lutchmeputty, but insists, tchat if he

634

This last adoption took place in 1801.

The suit was still pending when Jaganadha died.

ATCHAUA 21. R A ~ I A N ~ ~ ~ A BABOO [18461 IV MOORE INEI. APP., 94

is riot the adopted son, she is entitled to share with Stchama, in the sucCessio~~ of

Jaganadha.

A further question is made, in which all the other parties concur in contertdirip

apirtst ~ a n ~ a ~ ’ a d ~ ~ a ; that i f he was well adopted, and, therefore, a brother of

Jaganadha, they were divided, and not undivided, brothers ; and, therefore, though

~ ~ a ~ ~ a I ~ ~ ~ ~ ~ i a rxtight be entitled to his share of ~rer~catadry’s property, he call hare

no right of succession to Jaganadha’s.

As far as concerns Ramanadha, his whole title depends on the validity of 111s

cidoption. If he was not well adopted, he was neither a co-heir with Jaganadha,

POP heir to J a ~ a n a d ~ ~ a .

The first question, therefore, is, as to the ratidity of a second adoption, the first

adopted son stilI existing, and i . e ~ a i n ~ n g in possession of his character of a son.

This appears to have been long a point of great doubt in Hirtdoo law, and i s

htated by the Judges in this case, to be unsettled.

Three classes of ~ u t ~ ~ o r i t y have been referred to:-First, The o p i ~ i i ~ ~ ~ s of the

I’undits, appearing irt the course of the proceedings ; Secondly, The native au-[%]-

thorities, as found in the Nindoo treatism ; and Thirdly, The European autl~orities.

First. As to the Pundits ; there is coii~iderable difference of opinion a n ~ o n ~ s t

them. If the Bpp evidence i s to be believed, a number of Pundits, and learned

meii, gave their o against the validity of the adoption, to ~reiicatadry? in his

lifetime, and this at a period when their bias would probably be, to favour the wishes

of the powerful Raja who coiisulted them.

On t l ~ death of Vencatadry, there is a certificate signed by 140 Brahiiiirrs, t,hat

the ad~)~)t ion f R a ~ ~ a r ~ a d h a was invalid. But as this was an opinion produced by

Jaganadha, then in possession of the estate, but little weight is due to it.

O:I the otber hand, in 1815, before the i~istitution of the suit, by ~ a ~ n a ~ ~ a d ~ ~ a , the

Xortliern l? r~yinc~al Court took the opinion of their own Pundit, and of the Puiiclirs

nf the (”cutre a i d Southern Division of the Courts, on these questions : -

“ 1. Is a person having, conjo~ntly with a wife, adopted a son, and therearter

being displeased with her, and marrying a second wife, authorised by Eindoo la-Lr,

conjointly with her, the second wife, to adopt a son?

‘‘ 2. S person adopting a son, having for any reason adopted a second son, i s the

inrmer or the latter heir to the estate of the adopting, or are both sons entitled to

share the sanieZ”

These Pundits, being a t a distance from each other, giving separate opinions

iit some intervals of time, without, as it appears, any comniunicatiori betweeii them,

all agree in holding, that the second adoption i s good, and that both sons are equally

eutitled to inherit. [96] These opinions seem to be as free, as any opinion can be,

from suspicion of undue influence.

When the case came before the Sudder Court, two of the Pundits consulted were

in favour of the adoption, and one against it. The r~asoning of tlie two Pundits in

farow of the adoption is certainly very unsatisfactory; but still, so far as the Iaw

is to be collected from the opinion of Pundits, to be found in this case, the pre-

ponderance i s in favour of the adoption.

These opinions, howeser, are by KIO means Conclusive, and the Appellants cow

tend, that the native authorities, upon which they are founded, are s t r ~ n ~ ~ y against

the salidity of a second adoption.

These authorities, like the opinions of the Pundits, are not reconci~eable with

In the Digest of Bindoo Law, on Contracts and Suocessions, with a Conzmentary

bp Juggarlnatha, traiislated by Mr. Colebrooke, the question is discussed and treated

as one on which a difference of opirtion prevailed. The most material passages of

the Treatise are found in pages 386, 389, 395, 397. The author holds the better

opinion to be, that an adoption i s valid, although il, previously adopted son, or even

a natural burn son, be already in existence; the niain foundation of that opinion

being an ancient text, ‘ I that many sons are to be desired, in order that one may

travel to Gaya.”

It was attempted, in a most inge~ious a r ~ u ~ e ~ ~ t , on behalf of the ~ppeIlants, to

reconcile this authority -5th others, apparently of a different tendency, by showing

that tlie author intended, not that many sons of the same description might be

635

Lastly, Ramanadha, who maintains the decree as it stairda.

P X h other.

KV MOORE IND. APP., 96 RUNGAMA ’LT. ATCHAM.4-

adopted, but that he referred to sons of different descriptions, of which there were

twelve, recognised in the remote [96] ages of Hindoo antiquity, though only two are

now allowed ; the son given and the legitimate son. Another suggestion was, that

the author intended only that the second adopted son may have the rights of a son,

in the event of the failure of the existing issue, natural or adopted.

At the sanw

time it must be owned, that the doctrine is not very clearly stated, nor very easily

to be reconciled with some of the authorities to which it refers; and with respect to

the right of inheritance of the second son, we rather collect the author’s opinion to

be, that the second son would succeed, as in the case of a son well adopted, by one

having no issue, to whom a son is afterwards born, viz. to one third of his father’s

estate.

Whatever, however, may be the Pffect of this practice, its authority is far out-

weighed by tvFo other Hindoo works, expressly on the subject of adoption, the Dattaka

Miniarnsa and the Dattaka Chandrika.

The first passage, sec. i., plac. 3, in the former of these works, is the citation of a

text of an ancient sage, Atri, in these words, ‘‘ By a man destitute of a son. only,

must a substitute for the same always be adopted.” This, perhaps, standing alone,

may be held to mean that upon such a one only was it incumbent to adopt a son.

The commentary, however, excludes this construction, for it says, sec. i., plac. 6,

‘* By a man destitute of a son only. The incompetency of one having male issue is

signified by the term ‘ only’ in this passage.” The author then, after quoting a

text from Menu, much to the Bame effect with that cited from Atri, observes, that the

instances of adoption, by certain illustrious persons, of sons, although [97] they

already had male issue, must be conrridered as exceptional cases, and not as generally

authorising the act. In the next paragraph [12] the author seenis to concede, that

a second son may be adopted, with the sanction of the existing issue.

The Dattaka Chandrika {sec. i., plac. 3) cites the same text from Atri and Menu,

and puts the same construction on them, as the Dattaka Miniamsa.

We think that these treatises are more distinct than the work of dapannatha:

they are written on the particular subject of adoption; they enjoy, as \+e under-

stand, thz highest reputation thro~ighout India ; and their weight is strong againhr

a second adoption.

In the Ordinances of Menu, translated by Sir William Jones, we find this

pamage, in page 313 : “ He, whoin his fatfier, or mother n d h her husband’s assent,

gives to another as his son, provided that the donee have no issue, is coilhidered as

a son given.”

In the Viva Darnava Setu, translated by Mr. Halhed, ch. xxi., sec. ix., the proposi-

tion is distinctly stated, “ He who has no son, or grandson, or grandson’s son, or

brother’s son, shall adopt a son; and while he has one adopted son, he shall not

adopt a second.”

If we are to form our opinion of the law, from the effect of these authorities, we

can have no hesitation in coming to a conclusion adverse to the validity of a second

adoption.

At the same time it is quite impossible for us to feel any confidence In our

opinion, upon a subject like this. when that opinion is founded upon authorities

to which we have access only through translations, and when the doctrines them-

selves, and the reasons by which they are supported, or impugned, are drawn from

the religious traditions, ancient usages, and niore [98] modern habits of the Hindoos,

with which we cannot be familiar.

It is satisfactory, therefore, to find that, under the third head to which we have

adverted, the European authorities, there is much assistance to be derired from the

labours of those who have investigated this subject, with all those advantages of

familiarity with the laws and languages of Hindoostan, in which we are iiecessarily

deficient.

Here, unfortunately, as everpnhere else, there is some discrepaircy In the

authorities.

Sir Thomas Strange, in his Elements of Hindoo Law, Vol. I. p. 75 (%Id edit.),

expresses himself as follows :-‘‘ In general it is in default of male issue that tlie

right is exercised, issue here including a grandson, or great grandsort. But a$

636

VVc find great difficulty in adopting either of these suggestions.

ATCHAXA U, R A ~ ~ A ~ A ~ ~ ~ ~ B BOO [ 18 461 IV XOORE END. UP., 9s

there exists nothing to pre.ient two successive adoptions, the first Iiaving f ailed,

whether effected by a man himself, or by his widow or widows after his death, duly

author~sed ;so, even where the first subsists, a second may take place, such having

been the pleasure and will of the husband; upon the principle of many soaks being

desirable, that sonie one of them may tram1 to Gaya, a pilgrimage considered to be

~ } a r ~ i c u ~ a r l y effic~cious in forwarding departed spirits beyond their destined place

of torture.” ~ S h ~ ~ ~ ~ ~ ~ e ~

v. 1Vlt;lmyni Ztibeh (I Ben. Sud. Dew. Rep., 209), which was decided in 1807; and

f$oor.sepershriud Bai v. il-l.lcssummaut Jymda (2 Ben. Sud. Dew. Rep., l36), which \vas

decided in 1814.

Now, the first of these cases decided only that a second adoption i s valid, when the

f-irst adopted son haa died without issue; a point of law which i s not disputed. In

tire second case, a man having two wives, [99] gave authority to each of them, to

adopt a son. He himself, together with the other

wife, after~rards niade an adoption ; and it was finally held, that the two sons were

entitled equally to inherit to the husband.

This was a very peculiar case; it cer ta i~~ly seem to assume the ~ - a ~ i d ~ t y of a

double adoption ; but the doubts in the ease seem to have been, rather as to the effect

of the second adoption, by the husband himself, in revoking tlie authority given to

the wife, than on the validity of a second adoption, whiIe a first adopted son i s

living. T h i s decision is also stated by the Court, to be in confor~~i ty with the

preceding case of ~ ~ ~ ~ ~ h ~ ~ e 7 - v. Narq4~4 k)ibeh, which, in truth, for the reason

already mentioned, it in no degree supports.

These, we Believe, are the only Europeau authorities referred to, 011 behalf of

i ~ a m a x ~ a d ~ ~ a . With reference to these cmm, it may be observed that they have never

been considered as settling the law upon this subject. In a note to the case of

.\irvahee- Bibeh v. ~~~~~~h~ Rai (1 Ben- Sud. Dew. Rep., 42), which, it seems, was

upp plied to the Reporter, by hh. Colebrooke, the translato~. of J a g a ~ ~ ~ a t h a ’ $ Digest j

he states the point as one of doubt, and on which, although the authority of Jagan-

riatha was in favour of the adoption, the weighty authority of the Dattaka Chandrika

11 as the other way.

Every ~ u ~ o ~ e a ~ i , without any exception, as far as we have any inforn~at~o~i , wI o

Itas since examined the subject, has come to a conclusion adverse to t.he second

adoption. 111 a note to Strange‘s Elenients of Windoo Law, Yol 11, p, 85 (2nd. edit.),

the law i s t f i u ~ stated by Mr. ~ u t h e r ~ a n d , it very high authority:-“ A Hiudoo cannot

have legally adopted children ; a son legitinlate or adopted existing, any subsequent

adoption would [lOO] be invalid ; a t least the son so adopted would not inherit.”

In Mr. Sutherland’s Synopsis of the Hindoo Law of Adoption, p. 212, he thus

expwsses himself :-“ The primary reason for the affiliation of a son, being the

o b l ~ ~ a t o r y necessity of providing for the perforniance of the exequial rites, celebrated

by a so11 for h i s deceased father, on which the salvation of a Hindoo i s supposed to

depend, it is necessary that the person proceeding to adopt, should be dest~t7~te of

inale issue capable of p e r f o r m ~ ~ g those rites. By the term issue, tlie SOII’S so11 arkd

grandson are included. It may be inferred, that if such rnale issue, although

existing, were d~sq~ialified by any legal ~ ~ ~ ~ e d i ~ e n t (such as loss of cas+,e), from

1 ) e r f o r ~ i ~ ~ ~ ~ the rites in question, the affi~iation of a son migtlt legally take place.”

In Mr. SteeIe’s Synopsis of the Law of Windoo Castes, he states, p. 48:-‘< An

adoption can take place onIy where no begotten soil or grandson exists, or where the

~ e ~ o t t e ~ ~ son has lost caste.” Again at p. 5 2 : “In the case of &e death of ark

adopted son (and tots1 loss of caste i s considered equivalent to death), another may

km selected and given in the same manner; but a man, after adopting one boy,

t.niinot adopt another, at the desire of a second wife, etc. Only one adopted 8011 earl

hribsisk at one time, R. S. (Mit.).” It i s true that the treatise purports to relate to

tlie custonis of the Provinces of Bombay ; but we are not aware of a difference betweexl

the different Provinces, on this point, though there appears to be some jninor

difi’erences, on other poiiits of the law of adoption, and for this the last section of

the ~ ~ t a c ~ h a r a i s referred to. The last p a r a ~ r a ~ ~ ~ ~ , in this page, set?lns to be the

hc pspected, not very well agreeing with each other.

647

In support of these pro~ositio~is, Ire refers to two cases.

One of them made the adopt~on.

IV HOORE IND. APP., 102 RUNGBUA 2’. ATCHAMA-

But by far the most important authority is Mr. William Macnaghten, whose

Principles and Precedents of Hindoo Law were composed, as appears froin the

preface, after collecting all the i n f o r ~ ~ a t i o r ~ that could be procured, from a11 quarters,

and after a careful examination of all the original autho~”ities, and of all the

opinions of the Pundits, recorded in the Supreme Court, for a series of years.

This work was published after his report of the two cases already referred tl),

and of course lie could not but he acquainled with them ; indeed, he referh 10 one of

them Now, Mr. Macnaghten states the law, as he considers it be, without tlie

slightest doubt or hesitation. He says, Vol. I. p. SO, ‘‘ It is clear that a man haviny

adopted a boy, and that boy being dive, he cannot adopt another.” And lie

examines the text, that “ many sons are to be desired, in order that one may travel

to Gaya,” and says that it applies only to natural born sons.

We are informed by our very learned ASSOSSO~, Sir Edward Ryan, that this work

of Mr. Xacnaghteii’s is constantly referred to in the Supreme Court, as all but

decisive of any point of Hindoo law, contained in it, and that much more respect

would be paid to it, by the Judges there, than to the opinions of tlie Pundits. Upon

the particular point in question, Sir Edaard adds all the weight of his opon high

authority, concu~~.ing as he does entirely in the law, as stated in Maciiag~it~i~.

The Judges in the Sudder Court state, that they are aware that this has been

long considered a doubtful point, and they seem to proceed entirely on the [I021

opinion of the Pundits, who favour the second adoption.

On examining the reasons assigned by those Pundits, they rest upon two main

pir i ts :-

First. The text that ‘* many sons are tcil be desired, in order that one niay travel

to Gaya.”

Second. Upon the doctrine, that he who has only one son is to be considered as

childless.

Now, the first of these texts is evidently out of the case, if Mr. ~ a ~ ~ i a ~ h t e n ’ s

explanation be correct; and as to the second, in referring to the passages on which

the Pundits rest, they manifestly relate, not to a person who receives a child, but to

one who gives a child, in adoption.

Vpon tlir whole, therefoie, for these reasons, (which, as the point is of great

general importance, we have thought i t advisable to explain very fully), we have

come to the conclusion, that the adoption c+f ltanianadha was not valid, and that tlle

judgment of the Sudder Court upon that point must be reversed.

If we had come to a different conclusion on this subject, it would h a r t : beeu

necessary for us to examine into the effect of the deed, alleged to have been executed

by Vencatadry, on the adoption of Jaganadha, and upon which one of the Courts

below held that the subsequent adoptiorr was invalid, as far as regarded the right

of inheritance: but our view of the first point makes this unnecessary, and also

reinoves all question as to the alleged division between the supposed brothers.

Feeling the hardship of this case on Ramanadha, we have looked with some

anxiety to see whether his title could be maintained, on the ground, that it was

subsequently recognised by Jaganadha, and that such E1031 subsequent recognitiorr

might be consideyed equiralent to previous assent.

We think it, however, i~possible to maintain his right upon this ground.

Supposii~g Jaganadha to have acquiesced, after he came of age, in the division of

property made by Vencatadry, it was an acquiescence on the footing, of a riglit

already asserted by the father, to exiPt in Ramanadha, and it does not appear that

Jaganadha possessed all the knowledge, or was placed in the circumstances whicli

must exist, i n order to make his ratification binding, even if we a m m e , what is

not by any means clear, that sudi subsequent ratification would be equivalent for

that purposc, in Hindoo law, to previous consent. It appears, however, that there

was some property, both real and personal, of which Vencatadry had the power cif

disposing; and by an act, inter v1‘uos, without the consent of Jaganadha; and we

think that he made a gift, as far as he could, of his property between his two ~0119.

Applying, then, to this case, a principle not peculiar to English law, but comiiion to

all law, which is based on the rules of justice, namely, the principle, that a party shall

not, a t the same time, affirm and disaffirm the same transaction,-affirm it as f a r

as it is for his benefit, and disaffirm it as far as i t is to his prejudice,--we think,

638

XTOHAMA U. RAMASADHA BABOO [1846] IV ~~0~~ 1 ~ x 1 . UP., 104

that effect must be given q a i n s t the estate of Ja~anadha , to the int

~encatadry. as far as he had the power of affecting them. If Jaganadlr

we think he i s entitled to do, the whole ancestral property, which the father could not

dispose of, without his consent, we think he must give up, for the benefit of Rania-

nadtia, the whole property ~nc~uded in the divis~on, to the d ~ s p o s ~ ~ i ~ n of a h i t h . h i s

consent was not necessary.

[104] l~amanadha, beiug removed froin the contest, as to the SIX

~ a ~ a n a d h a , the question as to that success~on is in d ~ s ~ u t e between Lu

and Atcharna; for Rungama, though she rnny have the same interest Tit11 Atc4iama,

in opposing liutchmeputty, supports his title.

This i s a mere question of fact, upon which, as in almost all cases froin Irtdia, the

evidence is contrad~ctory, and the decision must turn rery much upon the proFm-

billtie* of the case, to be collected from those factq which are sufficiently e ~ t ~ ~ ) l i b ~ ~ ~ ~ *

Fir the year 1819, the ~ i t ~ i a t i o ~ ~ of J a a n a d ~ i a \%as as folfom: E e had riiarried

two wives; but he had never had any issue by either of them. He i s stded Irp sonic

of the witnosses to have been, from badily infi~,~ii ty, very unlikely to h a w issue.

This is so far confirmed by u n d ~ s ~ ~ ~ t e d facts, that lie lived for six years a ~ t e r ~ ~ - ~ r d ~

with R u n ~ ~ ~ ~ a , and never had any issue. IFe might, therefore, ~ e a s o ~ ~ a ~ l ~ presume,

or perhaps knew, that he should have no natural born son, or, at all events, no sucli

son. by Rungama.

With Atcfiaitia fie had ~ ~ a r r e l l e d ~ in April 1819 : and p r e ~ ~ o u ~ l ~ to the al’le

adoption, she had quitted his house, to wlxieh she never seems to Iiavc retur

till after his death. Under these eircurnstances, it cannot but he held probable,

that he should choose to adopt a son. But, this probability ib niuclr confirmed. trhen

UF“ cortsiiier the relation in wliich he stood towards them, who, if he left t to iasue,

nai urn1 or adopte~~, woufd succeed to Itis great possessioiis. Either ~ ~ t c ~ ~ a I t ~ ~ , Kith

w h i r : he had quarrelled, would take alone, or jointly with Rrrngania ; or ~ a ~ ~ i ~ n a d h a ,

with whom lie was at la\v, and whose cliarac~er of a bro~her he denied, would succeed.

Nothing i s more [lob] natural than that lie should desire to disappoint these parties.

Eow, it i s proved. beyond all question, by the evidence of Mr. Rohertx, the

Collector a t ~ ~ s ~ ~ ~ p a t a ~ n , th t in the course of the years 1824 and 1825. a Imy of

an age coi , respo~~din~ with that of ~ u t e l ~ ~ i e p u t t y ) and who, by othcr ei-idence, i s

shown to have been ~ u ~ ~ ~ ~ i i i e p ~ i t t ~ , was ~ ~ r o ~ i ~ l ~ t by ~ J ~ ~ a I ~ a d l ~ a . upon several occasions

011 which he paid a v is i t at the Co~lector’s office, and that the boy was treated l y

Ja~axi~~dha , and ons side red by him, the Collector, as his adopted #on ; he saps that

the boy accompanied Jaganadha upon every visit except the first ; that be Iind

f ~ e ~ ~ ~ i e ~ ~ t co~nm ini(~ation with J a ~ a r ~ a d ~ ~ a on the subject : that he considered the boy

mab brought, in order that he might be recognised as an adopted son ; n ~ r d that so

satmfied w m he, Mr. Roberts, of the facts, that on Jaganadha’s death, in thc absenrr

of evidence to the contrary, he should have cons~dered hiin as heir,

The question then is, was this boy well adopted or nota

The account given hy the A p ~ e l ~ ~ ~ ~ t is this, that in March 1819, Cliaoa ~ a ~ d a ~ ~ ~ a l ? ,

a relation of J a ~ a ~ s ~ d h a , had a son born to him ; that Rungarna, by the desire of

Jaganad~ia, applied to the randf father of the child, to know if tlre fninily would

give this child in adoption to J a g a n a d ~ ~ a ; that difticulties were suggested as to the

right of J a ~ a i ~ a d h a to adopt any of the Soodra class ; that he c o i i s i i ~ t ~ ~ the Pundits,

aho gave an opinion in favour of such adoption, on the 23rd of April; that this

op~nion was coi~~~nunicated o Chava ~ a i d a m a ~ ~ , who. on tlie 26th of April, signed

an ~ ~ ~ ~ t ~ - u ~ ~ e n ~ giving his son to J a a n a d ~ ~ ~ , who signed an ~ r ~ s ~ r ~ i ~ ~ ~ e ~ i t acceptirig the

boy in a d o ~ t i o n ; and that Cl061 on the 18th of ~ u ~ u s t 1819, all the necessary

erem monies of adopt~oii were performed, and a c e r t i ~ ~ a t e of the p e r f ~ ) r ~ ~ l a i ~ c e cn-

domed on the instrument, containing the opinion of the Pundits, and signed I J ~

twelve persons present at the adoption.

These instruments are produced, niid the facts tending to th is coriclufiion w e

s ~ o r ~ ~ to,.by a vast ~ u ~ ~ r of ~ ~ t ~ e ~ ~ e ~ . The e ears to us to be no o ~ j e c t i o n ~

to this t e ~ t i n ~ o n ~ ~ beyond the obs~rvation, .vvhich may be niade on all Xindoo testinion?,

that perjury and forgery are so extensively prevalent in India, that little reliance

can be placed on it.

But the important fact, that this boy was brought up and treated as ail adopted

son, does not depend merely on ~ i n d o o te~timony. That there was such a boy, and

639

IV MOORE IND. APP., 107 KUXGAM.4 ‘U. ATCHAMA

that lie was considered as likely to succeed, is proved, liot only by Bir. Roberts arid

his clerk, who, though, froin his name (Custoory Setaputty), %-e presume is a Hindoo,

appears to give evidence nithout the slightest bias, but also by a letter aritten, or

rather forged, by, or 011 behalf of, Atclimia, i r i the Iiaiiie of Jaganadha, dated jukt

before his Jeath.

In this letter, Ja~aiiadlia is made to state, that Rungama was teasing liiiii to leare

his estate to LutchIiieputty. Tlie vordx are :-“ Rungama troulAcs nie much to

leave, by writing, the taiook, etc., to Clrava Lutchnieputty, of another gotrum, wliorri

h e . Ruiigaiiia, has been taken care o f ; but I have not consented to it.” This dovu-

inent, together with tlie forged Will in favour of Atchama, were produced ill Court,

on the 12th of May 1825, immediately after Jaganadha’s deatlr.

NOW, the case made by Atchama is, that Lutchmeputty was a boy first brought

forward some time after [107] the death of Jaganadha, and that lie never Tas at

Amasavaty, the residence of Jaganadha, in his lifetime. This is clearly contrary

to the fact, aiid coiitrarv to tlie fact, as kirown to Atchania, and yet iuanF of her

witnesses, who say that they were in daganadha’s house at the time when tlie alleged

ceremonies of adoption took place, aiid that no such ceremoniw in fact took place.

swear also that Lutchmeputty was iiever at Amaravaty, till after the death of

Jaganadha.

There are two circumstanc~s, and only two, which, 110 doubt, are much against

tlie adoption.

First. The conduct of Rungama, who now brings forward this claim of Lutch-

nieputty, but who suppressed all mention of it, as i t is said, till the quarrel I)etn-eeu

Rungania and Ramanadha, in ib2G. Secondly. The absence of proof of any fornial

notification to tlie Government, arid of that degree of notoriety wliivli might be

expected of a fact of so much iniportan~e, in such a family.

As to the first point, there is no doubt, that for several months after tlie death

of Jaganadha, Rungania not only was silent as to the title of ~ u t c h ~ e i ~ u t t y , but she

acquiesced in that of Ramanadha, and signed several iiistruments, quite ~ncoiisistent

with the case which she now sets up.

It it, attempted to remove the effect of these acts by saying, that she was under

the influence of Ramailadha, and signed whatever papers were laid before her, in

ignorance of their contents, or even blank papers to be afterwards filled up.

There is some evidence that she did sign blank papers; and the fact, that if

r ~ u t c ~ i l n e i ~ ~ ~ t t y was not entitled, she had herself a strong claim to participate [108]

with Atcirama, in the succession of Jaganadha, affords a strong inference that,

in supporting the claim of Rarnanadha, she was deceived by him, unless she was

acting in collusion with him, under some secret arrangement.

We caniiot say, that we are satisfied as to tlie impositicn alleged t o have beer1

practised upon her; and if ye were dealing with her rights, we should attribute

niuch weight to this part of the case ; but we cannot attribute much weight to it :

perhaps, in strictness, we ought iiot to attribute any, when pie are dealiitg with the

rights of Lutchmeputty, and wheiz tlie effect of the acts relied on, i s rentoved, alike

by supposing collusion with Ramanadha, or iuiposition by him.

Secondly. With respect to the absence of any formal notification to the Guveiii-

rnexit, it is admitted, on all hands, not to be necessary. At the same time, it affords

so easy a mode of preserving unquestionable evidence, of a most important fact,

that, in the case of a great family like this, some written co~~imunicatioii would,

most probably, be made either on the occasion of the adoption itself, or on some

subsequent occasion : and we find, accordingly, that com~~unications were niade

to the Government, by Vencatadry, with respect to the adoption, both of Jaganadha

and Ramanadha, and that he endeavoured to have their title recognised. The

absence of any such communication in the case of Lutchmeputty is, therefore.

important.

There are, however, circumstances in evidence, by which the weiglit of the objev-

tion is very considerably diminished. The adoption was resolved upon in April

1819. A n i ~ ~ r a ~ a t y was in the Collectors~~ip of Guntoor ; and, at this time, ~ a ~ a n ~ d l i a

was at law with [109] the Collector of Guntoor, who refused to deliver up possession

of some portions of the property of Pei-icatadry, claimed by J a ~ a ~ i a d l ~ a .

It is not, perhaps, very unnatural to suppose that, under such circumstances.

Such evidence can go for nothing.

640

~ T C ~ A ~ * ~ V. R A ~ ~ A N ~ ~ ~ ~ BABOO [1846] 1v MOORE IND. APP, 110

Jagar~adi~a would not, wihq$y, have any c o ~ ~ ~ m u n i c a t ~ o n with the Collector, not

absolute~y necessary. But there were other disputes at this time, between Jaganadha

and the ~o~,ei .ni~ient authorities. Atcliama, or her brothers, on ber behalf, had

co~pla incd to the civil magistrate of the conduct of J a ~ a n a d ~ ~ a tow rds her, and he

had been fined.

From some of the docui~i~I~ts, there seem to have been other d ~ ~ e ~ e ~ ~ c e s s u b s ~ s t ~ K ~ ~

between them. That, at a subsequent time, there was son= written ~ ~ ~ ~ ~ ~ ~ ~ u ~ ~ i c a t ~ ( ~ ~ 1

to the ColXector of ~ a s u ~ i p a t ~ m , in which district a portion of this large eqt a t e was

situated, there is much reason to believe, A most important letter upon this

subject, purports to be a letter from Jaganadha to his wife, and has much internal

evidence of authent~c~ty. It is dated 13th of July 1819, and is in these words:-

‘‘ As ~ u n t o o ~ o o has sent me a letter, e n c ~ ~ ? s ~ n g a foul arzee to the author~ty, on the

subject of our adoption of a boy, I caused it to be copied fair, and despatched it

this day through the Vakeel, because I t h o u ~ h t it i s pioper ; and the said arzee was

received by the junior gentlenian, who i s vested with the authority of ~ ~ ~ a g i ~ t r a t e .

There was enmity before beheen us and certain persons in this place, owing to one’s

nialerolence against us ; and it has now occasioned enmity hetxveen us and a i i o ~ ~ ~ e r

man, as well as between us and the a u t ~ ~ o r i t ~ e s of this place, in consequence of the

a u t ~ ~ o r ~ i ~ e s of the Circuit Court having been pieased to expose the c ~ l u ~ n n y used bp

the persons in [?I103 this place a g a i n ~ t us ; c o n s ~ u e n t l ~ there will happen o ~ s t ~ c I e s

t~ our affair ; but I am not uneasy, as there does not appear anything that can be

supported by the said persons r e g a r d ~ n ~ the circumstances, which i s now intimated

to us. I herewith send the copy of the said arzee, and will inform you the remaining

~ ~ r ~ u m s t a n c e ~ on my arrival at that place.”

I observe that one of the

Judges below states that the h a n d ~ r ~ ~ ~ n ~ of this letter is not proved; but that, at all

events, it i s of no consequence, because in fact it is before the adoption, and could

not prove that the a~opt ion had taken place. In the e n o r ~ o u ~ mass of documentary

and parol evidence, to be found in this case, far exceeding anything which, in our

experience, has been brought bcfore this C o ~ n ~ ~ t t e e , it may be difficult to say,

whethcr i t is or not regularly proved ; but it seems to have been produced in evidence,

~ ~ i t h o ~ i t any objection being made to its ~~i~thenticity.

The objection which is made to it by the Judge c e r t a ~ n l ~ is not well ~oui~ded .

The transaction of the adoption might not ha-ve been completed, a t the date of the

letter, because the usual cei-enion~es had xrot been per for~~ed, which are represen~ed

to have taken place in the f o l l o w ~ ~ g Augi~st ;but the t ra~~sact ion was i n c ~ ~ o a t ~ ; the

child had been given in adoption and received in adoption, in the preceding April,

and the ternis of the letter are, therefore, perfectly app~icable to the state of cir-

c u ~ ~ i s t a n c ~ s which existed at the date.

Upon this state of the evidence, the p r o b ~ ~ ~ ~ ~ i t y of the adoption, cer ta~r~ly of it

child being brought up in the family, and introduced to the European a u t ~ i o r ~ t ~ ~ ~ ,

with the same state and pomp as if he were an adopted [l?I13 son, with documents

and witnesses in great numbers, c o n ~ r ~ ~ n g the account, which d o c u ~ e n t s and

witnesses are open to no other suspicion than a t tae~es to all Nindoo evidence, we

should have had no hesitation in affirming the fczet of adoption, if the case tiad come

before us as an original cause.

R7e have been pressed, however, and very pi+opei.ly preysed, with the a r ~ u m e n t

that this i s a niere gu on of fact, to be proved by evidence; that all the Judges

Iwfore wlioni the case has come, have d ~ s ~ ~ e ~ ~ e v ~ the evidence ; that they had some

a ~ ~ r a n t a ~ c s in coming to a conclusion ~ h i c ~ ~ we have not, and that their j u d ~ ~ e R t s

are to be considered, as Perdicts of R jury, which ought not to be disturbed, except

upon very strong grounds.

E t i s impossible not to fee1 that there i s great weight in these o ~ s ~ r v a ~ ~ , i ~ n ~ , and

they have ~ ~ ~ ~ s i ~ n e d one of the prinoipid di~ctIl t ies which we have felt, in this

WX& d~fficul~ case; we have, however, the same evidence which was in the Coilrt

below, We have had the advantage of a mwt full and able discussion, a t the Bar ;

and this Court i s more accustomed to the e ~ a n ~ i n a t i o n f evidence, than the civil

servants of the East India Company, who preside in the native Courts, can be sup-

posed to be. We have further the great advantage of having the grounds on which

these j ~ ~ d ~ ~ n e n t s pr#ceeded. We cannot 88-y that they are at? all s a t i s f a e ~ r y to our

If this letter be genuine, it i s almost conclusive.

P.C. VII. 641 21

IV D9OORE IND. APP., 112 ~ U ~ ~ A ~ ~ A 'U. A ~ C ~ A ~ A - ~ T C H A ~ ~ A W. R. BABOO [ I846]

minds. By far the most i ~ p o r t a n t evidence in the case, the evidence of MY. Itoberts,

is disposed of, by assuming that this gentleman, in his deposition, and in a coni-

iimnicatiori x-hich he made to the Board of Berenue, entirely in the bame sense,

~mmediately on the death of Jagai~adha, lay uiider a ~ ~ i s c o n c e p t i o ~ ~ of what bad

passed in a conver.sa-Cll2]-tion, in a language wliich was iiot vernacular to either

party.

This appears to us a purely gratuitous assun~ptiori : it would have beeii a strong

aasuiription if Mr. Iloberts's opinion had been formed from a single conversation j

but he states, that he had frequent communications with Jaganadha, upun the sub-

ject ; that the boy was brought to him by "Jaga~~adl~a, four or five times : W ~ S treated

by the Raja, as h i s son; arid was brought, as he conbidered, in order that his title

as such iiiight be known and recognised. His opinion is four&& not merely 011

what he heard, but what he saw, riot on one, but on seTTeral occasions.

Supposiiig the fact of adoption to be proved, soine objections nere made to i t h

validity, in point of law ; but they do riot appear to us to be of any ralue.

Upon the whole, after a very long and anxious coK~sideratio~ of the subjeet, we

feel ourselves called upon to differ upon this point also, with respect to the adoption,

from the judgme~it of tlie Court below, and to hold that L u t c l ~ i ~ ~ e p u t t ~ was well

adopted, and is entitled to succeed to tlie whole estate of Jaganadha, subjecbi to such

~ ~ ~ a i ~ ~ t e i ~ a ~ ~ ~ e , as h s widows may by law he erititled to.

Our report to Her Majesty will be, that as to Puttoory Caly 1)oss (who seems to

have been very improperly made a party to the proceedings), the Appeal ought to

be dismissed, with costs. That the decree of the Court below ought, in other respects,

to be reversed. That it should be declared, that the adoption of I la~i ianad~~a was

invalid, and that he was not entitled to be vonsidered as a eo-heir with Jaganadha,

to Yencatadry ; but that, under the c i r c u ~ - ~ l l 3 ~ " s t a n ~ e s app aring in evidence, he

was entitled to such property included in the gift made by 'YeIicatadry, after Jaga-

nadha came of age, as Pencatadry had the power to dispose of. That Ramaiiadha

was entitled to retain those portions of sueh property which came into h i s possessioii,

and to have restored to him such portions thereof as came into the possession of

Jaganadha, or to have compensation made for them, out of the estate of ~ a g a i ~ a d ~ a .

That the a d o ~ t ~ o n f I~ut~hnieputty b ~ ~ a ~ a n a d ~ ~ a was well proved, and that Lutch-

ineputty was entitled to succeed to the whole estate of Jaganadha. That with these

dec~arat~o~is , the cause should be remitted to the Court below, with directions to

do what may be necessary for giving them edect. That no costs ought to be given in

these Appeals, or in the suits below, except to Puttoory Caly Doss.

[Approved Gopee hall v. J f u a t m u t Si ee C ~ ~ ~ ~ ~ * c i o ~ e e ~ ~ ~ ~ ~ o ~ ~ e , 1672, L.K. Ind. dpp

Sup. Vol. 131 ; followed i f l ~ h e s h ilirrain ~ ~ 0 ~ s ~ ~ T. Turzrck Sccf l r J l a t t m , 1892,

L.R. 20 Ind. App. 30. As to disturb^^^^ j u ~ g ~ ~ ~ e ~ ~ t of Court below 0x1 yuestion of

fact, see ~ ~ ~ ~ ? ~ a ~ ? ~ ~ ~ ~ v. S \ ~ ~ i r J ~ a ~ ~ ~ i Xad*er, 1865, 10 MOU. Illd. dyp. K36, AS

to value of autliorities (4 Moo. Ind. App, 97), see Zlirngwut-t S i r ~ y h v. ~ ~ J ~ u ~ ~ ~ ~ ~ ~

Si%&, 1899, L.R. 26 Ind. App. 161. For subsequent proceedings, see In re

~~~u~ ~ u s s f f ~ e ~ ~ ~ ~ ~~~r~~~~~~~~ ~ ~ ~ ? ~ ~ ) ( ~ , 1859, 5 $100. I d . App. 300.1

643