~ ~ R A D H U ~ ~ O O ~ U ~ J I A , - ~ ~ e ~ ~ ~ ~ ~ ; ~ U ~ ~ O R A N A T H M O O K U ~ I A and

O t h e r s ¶ - ~ e $ ~ ~ e ~ s * [Feb. 13, 14, 15, 18493.

On Appeal from &e Swlder ~ e w a ~ ~ Adadut at ~~~~~.

Adop~ion may be made, either by a man in his lifetime, or, by his widow, after

his death, under a power conferred on her for that purpose by her husband

[4 Moo. Ind. App. 4261.

%‘here there is conflicting evidence upon the fact of an adoption, much will

depend upon the probabilities of the case, to be collected from facts as to

which both parties are agreed [4 Moo. Ind. App. 4251.

As, in the case of a ch~ldless Hindoo, advanced in years, where it was in the

highest degree improbable that he could have any children by his wives, and

he had adopted a boy, in despair of having issue, who died in his adoptive

father’s lifetime, and the fact of his religious tenets, by which his salvat~on

depended upon his leaving a son to perform his funeral oblations,-

Held to be strong probabiI~t~es in favour of such an adoption [4 Moo. Ind. App.

4251.

The evidence of witnesses to the fact of a p a r d adoption, without deed, was con-

tradictory, the Provincial and Sudder Courts in India, held, that a claimant

to the succession, as adopted son, had not established, by creditable testimony,

the fact of such adoption. Upon appeal, such Decrees reversed; the Court

holding, that the presumption, in the oircumstances, was in favour of adoption,

and that the evidence was sufficient to establish the claimant’s title [4 Moo.

Ind. App. 4301.

This was a suit for possession of the real and personal estate of one Ghunsani

Xookurjia, deceased. E4161 The Appellant, who was Plaintiff in the suit, and a t

that time a minor, claimed the estates, as the adopted son of the deceased. The

case of the Appellant was, that Ghunsam Nookurj i~, being old and without ~oss ib i l~ ty

of issue, had executed an anumati pattra, authorising his second wife to adopt a son ;

but had, in co~sequence of sudden illness, superseded that author it^ by adopting

him, the Appel~ant, as his son, and as such he was entitled to the property in ques-

tion. The Respondents, Muthoranath Mookurjia, Nubkishen Mookur~ia, and Barn

Chunder Mookurjia, the SORS and heirs of Goluk &under M o ~ k u r j ~ a , deceased,

one of the Defendants, denied the fact of such adoption, and set up a title to the

whole of the property, under a hibbanama, or deed of gift, made in Goluk Chunder

Mookurjia’s favour, by the deceased, Ghunsain Mookurjia, and also claimed the

estates, as his undivided brother, under a joint partnership existing between them,

under which the title Goluk Chunder Xoolsurjia had obtained possession of the

property in dispute.

Ghurisam Mookurjia was the eldest of five brothers, viz. Gobind Ram ~ o o ~ u r j i a ¶

Goluk Chunder ~ o o k u r j ~ a . ~ a s h a n u n d ~ o o k u r j i a , Unoop Narain ~ o o k u r ~ i a , nd

E4161 it ~~alf-brother, Beer Eshur Xookurj ia, who, together, constituted an undivided

Hindoo fandy. In the year 1792, a separation of the family took place, and in

the year 1817, this a r r a n g e ~ e n t was further carried out by a p a r t i t i o ~ ~ ; and a

division of the joint property was made between them,

Ghunsanz Mookurjia had two wives, but having no child by either, and being

advanced in years, and it being i ~ p r o ~ a b l e that ha would have issue by his wives,

he adopted, as his son, Banee Madho, the son of his brother, Goluk Chunder Nookurjia.

Ranee Madho died in the year 1824, in the lifetime of his adoptive father.

In consequence of his death, Ghunsam Mookurjia executed a deed, called an

anumati pattra, e~~~power ing his second wife to adopt a son or sons. This power

was never exercised.

On the 30th of ~ a n u a ~ y , 1525, Ghunsam Mookurj~a died, leaving two widows,

who afterwards became suttees, and burnt themselves with the body of their husband.

* Present : ~ e ~ b e i ~ s of the Judicial Committee,--Lord ~roughanl , Lord ~ , a ~ ~ ~ d a ~ e ,

the Right Hon. Dr. Lushington, and the Right Hon. T, Pemberton Leigtl.

Privy Counci11or7-As~essor,-S~r E. Ryan, Knt.

~ - - “”_ - ~ ~ - ~ -

758

M U T H O ~ ~ A ~ H ~ O O K W ~ I A cl8491 IV BBOORE I=. APP., U?

The evidence was conflicting, as to the fact of the Appellant, or @luk Chunder

Mookurjia, performing the ceremonies of Kriya, and Karma, and Sradha, for the

deceased Ghunsam snd his widows.

Goluk Chunder M ~ k u r j ~ a , who w&s already in possession of all the deceased’s

property, under an order by the Magistrate of the district, continued in possession.

Upon the death of Ghunsam Mookurjia, a claim was set up by Juggut Chunder

Mookurjia and others, a8 the executors named in a testamentary paper, called a

Wusseyutnama, whereby they were appointed the guardians of the Appellant, on

behalf of the Appellant, then a minor, to the property, as the adopted son of the

deceased.

[41Q This claim was resisted by GoIuk Chunder Mookurjia, and some disturbance

being created respecting the possession, a complaint was made to the Foujdarry

(magistrates’~ Court, who after an in~estigation of the case, ordered that Goluk

C h u d e r Mookurjia should be left in possession of the estate.

On the 7th of October, 1825, Jugut Chunder Mookurjia, Pranni th Nundoojia,

and Chundernath Bundoojia, the guardians of the Appellant, then a minor, filed

their plaint in the Provincial Court of Calcutta, against Goluk Chunder Mookurjia,

Rashanund ~ ~ o o k u r j i a , nd Unoop Narain ~ o o k u r j ~ a , in which they alleged, that

Ghunsam Mookurjia, in consequence of the death of Banee Madho, took and adopted

as his son, the minor Huradhun Mookurjia ; that previous to his decease, Ghunsani

Mookurjia executed a Will, and appointed the Plaintiffs guardians of the minor,

and they claimed (after deducting certain portions of the estate alleged to have

been separated in his lifetime) possession of the share of the deceased Ghunsam

Mookurjia, in the estate, the joint property of the deceased and of the Defendants,

which, according to the particulars of the demand set forth in the plaint, they

estimated a t Rs. 157,345. 12a. 16g. 1c. 3k., and prayed, that upon proof of the

Appellant’s adoption they might be put in possessioi~ of the estate of the deceased.

The Defendant, Goluk Chunder Mookurjia, by his answer, t,raversed the adoptioii

of Huradhun Mookurjia, and denied the execution o f the Will by Ghunsam Moo-

kurjia ; and claimed possession by virtue of the Deed of gift executed by the deceased

in his fayour, on the 30th of January, 1828, and also by virtue of their having lived

in commensality and joint p a ~ n e r s h i p together, and possessing interest in their

estate and goods in common; he moreover denied, that his co-Defendants,

Rashanund Mookurjia and Unoop Narain Mookurjia, had any right to participate

in the deceased‘s estate, and insisted, that they had improperly been made parties

to the suit.

The other Defendants did not appear, o r put in any answer to the plaint.

Pending these proceedings, the Defendant, Goluk Chunder Mookurjia, died, leaving

the Respondents, Muthoranath Mookurjia, Nubkishen Mookurjis, and Ram Chunder

Mookurjia, his sons and heirs, who were admitted to defend the suit.

The evidence entered into was of a very conflicting and contrad~ctory character.

The plaintiff^ filed the alleged anumati pattra, or deed of consent to adopt,

and the Will, alleged by them to have been executed by Ghunsam Mookurjia. They

also filed the depotjitions of witnesses taken before the Foujdarry Court, and ex-

amined witnwes, to prove the fact of the adoption and the performance of

funeral ceremonies of the deceased Ghuosam Mookurjia and his widows, by the

~ppel lan t .

The Respondents produced in evidence, the deed of partition between the six

brothers, dated the 22nd day of June, 1792, the deed of gift, dated the 30th of

January, 1825, from Ghunsam Mookurjia, in favour of Goluk Chunder Mookurjia,

and the report made by the police on the examination of Ghunsam’EI widows, on the

occasion of their *becoming suttees. They also filed the depositions of witnesses,

taken in the Magistrates’ Court, to prove that no adoption had taken place; and

examined five witnesses, who deposed, that Ghunsam Erlookurjia and Goluk Chunder

Mookurjia, after the separation of the family, lived and ate together, and that

Ghunsam ~ o o k ~ r ~ i a exe-[419]-cuted the deed of gift &s before mentioned, and that

the funeral ceremonies of Ghunsam Bdookurjia were performed by Goluk Chunder

Mookurjia.

Mr. Middleton, the Judge of the Provincial Court, pronounced his decree on the

17th of February, 1831, and after commenting on the evidence given by the

759

IV MOOBE IND. APP., MO HURADHUN MOOKURJIA

Plaintiffs’ witnesses, was of opinion, that the case set up by the Plaintiffs with regard

to the adoption of the Appellant, and the deed of anumati pattra and wusseeyut-

nama was unworthy of credit, and ordered, that the suit should be dismissed with

From this decree the guardians of the Appellant appealed to the Sudder Dewanny

Adawlut a t Calcutta.

Whilst the suit was under appeal, Beer Eshur, the half-brother of the deceased

Ghunsam Mookurjia, presented a petition to the Sudder Court, in which he claimed

to be entitled to a sixth-share of the property in dispute, and prayed that his rights

might be protected. Unoop Narain also, at this stage of the cause, put in an

answer to the plaint. In the petition of Beer Eshur, and also in this answer of

Unoop Narain, the adoption of the Appellant was stated and not denied.

The appeal came before Mr. W. Braddon, one of the Judges of the Sudder Court,

who recorded his opinion on the 25th of April, 1834, in which, after concurring

with the reasoning of the Provincial Court’s decree, he held, that the adoption

by Ghunsam Mookurjia of the minor Huradhun had not in anywise been proved.

He considered, however, that the deed of gift from Ghunsam Mookurjia to Goluk

Chunder Mookurjia, having been made so short a time before the death of Ghunsarii

Mookur jia was not satisfactorily established, and, accordingly, dechred that the

decree ought to provide that the decision should be no bar to the claims [420]

of any of the other brothers of Ghunsam Mookurjia, and that in that respect the

decree of the Provincial Court required to be amended.

As the Judge differed in one respect from the conclusion of the Provincial Court,

the proceedings were laid before Mr. T. C. Robertson, another of the Judges of the

Sudder Dewanny Adawlut, who concurred with the opinion recorded by Mr. Braddon,

and delivered the final decree of the Court, on the 9th of May, 1834, the material

part of which was as follows:-

“ In this case, the only inquiry to be made is this : Whether Ghunsam Mookurjia

had actually taken in adoption, according to Sastra, Huradhun Mookurjia, or not’l

In my opinion, adoption of the aforenamed (Huradhun Mookurjia) does not appear

to have been made out, because the selection of a child for the purpose of adoption

is not a circumstance of that nature as to admit of its performance before a few

strangers only; on the contrary, its validity would depend entirely upon the

compliance with the obligation set forth in the Sastra, and the presence of the Gooroo

Purohita, and brothers, relations, and connections, and the utmost publicity ; and in

this particular, besides the evidence of relations and connections, the depositions

of others are scarcely to be credited, and witnesses who have deposed to Huradhun

Mookurjia’s adoption appear to be strangers, and the servants of Ghunsam arid

inhabitants of other places; and, moreover, the witnesses have stated the matter

of Huradhun Mookurjia’s performing the ceremonies of Ghunsani Mookurjia’s

sradh in so confused and unsatisfactory a manner, that much dependence cannot be

placed on the verity of their statements ; and as to the anumati pattra and wusseeyut-

nama (or will), which Appellants [421] have adduced in proof of Huradhun

Mookurjia’s adoption, they contain neither the signatures of brothers and friends

of Ghunsam Mookurjia as witnesses, nor are they registered or bear the impression

of the kazi’s seal, and consequently are not worthy of being received as valid

documents ; on the contrary, they appear nothing but fabricated. The hibbanama

of the Respondents was drawn out on the day of Ghunsam Mookurjia’s death;

such hibbanama cannot be held as valid. Independent of this, when Goluk Chunder

Mookurjia, on his own showing, had the right of inheriting the whole of Ghunsam

Mookurjia’s estate, according to Sastra, because of his union with the deceased, what

necessity then was there for the execution of a hibbanama? The hibbanama in

question, therefore, is not free from doubt. Under this circumstance, and with

reference to the reasons stated in the decision of the Provincial Court relative to

there being no proof of the adoption, and the invalidity of the anumati pattra

and the wusseeyutnama, and with regard to what has been said therein on the

accuracy of this hibbanama, and the reasons assigned for the dismissal of the

Plaintiff’s claims,-these matters are susceptible of amendment and modification,

and the decision of the Provincial Court in regard to the dismissal of the claim of the

Plaintiffs worthy of being upheld ; consequently, in amendment of the decision of the

760

Costs.

U. MUTHORANATH MOOKURJIA [ 18491 IV MOORE IND. UP., 422

Calcutta Provincial Court, dated 17th February, 1831, it is ordered, that the claini

and appeal of Appellants be dismissed, with costs of both Courts, and that the

decision prove no bar to the claims of the other brothers of Ghunsam Mookurjia.”

The Appellants, being dissatisfied with this decree, presented a petition for

review of judgment, which was refused ; whereupon the Appellants appealed to Her

Majesty in Council.

[a21 I n 1841, Huradhun Mookurjia attained his majority, and his name was

substituted in the place of his guardians, as Appellant, in forma pnuperis, to

England.

Mr. Turner, Q.C., Mr. Forsyth, and Mr. J. B. Maule, for the Appellant.-The

evidence adduced in the Court below by the. Appellant’s guardians, sufficiently

established the fact of his adoption by Ghunsam Mookurjia. The presumption is

in favour of such adoption. The fact of Ghunsam Mookurjia having already adopted

a son, who died in his lifetime, the state of his health, the impossibility of having

issue, and the authority given by him to his second wife to adopt a son or sons, a9

he could himself have done by law, the first adopted son being dead, Sfiamcliundei,

v. Narayi Dibeh (1 Ben. Sud. Dew. Rep. 209), Goureepershaud Rni v. Mussumvinut

Jynzala (2 Ben. Sud. Dew. Rep. 136), Mussammat M l a b h De v. Ma”nu Bibi (5 Ben.

Sud. Dew. Rep. 50). These are strong facts manifesting his intention to adopt,

and to favour the probability, that he superseded to power given to his wife, by

adopting the Appellant, by parol, during his sickness. According to the tenets of

the religion followed by Ghunsam Mookurjia, such an act was absolutely necessary,

his future beatitude depending, according to the prevalent superstition of the

Hindoos, upon the performance of his obsequies, as the means of redeeming him

from an instant state of suffering after death. 1 Strange’s Hindoo Law, p. 73.

(2nd Edit.) 1. W. Macnaghten’s Hindoo Law, p. 63. Sutherland’s Hindoo Law of

Adoption, Pref. p. i. Even if the evidence is contradictory, still upon the authority

of the case of Rmgamna v. Aechema (4 Moore’s Ind. App. Cases, p. 1. 104), the decision

must turn upon the probabilities of the case, to be [423] collected from these facts

which have been established and are not disputed. The order made by the

Foujdarry Court giving possession to Goluk Chunder Mookurjia, was only one of

interim possession, pending the institution of a regular suit.

Mr. Wigram, Q.C., Mr. E. J. Lloyd, and Mr. Edmund F. Moore, for the Respondents.

-No reliance can be placed upon the evidence given in support of the adoption ; it

is principally the testimony of strangers and servants in low station of life, and is

altogether unworthy of credit. Some of them swear that their names were written

as witnesses to the anumati pattra, but upon reference to that document they are not

to be found ; this shows the value of their testimony. The greatest strictness is re-

quired in evidence to prove an adoption in a Hindoo family. Sootruyun Sutput ty

v. Sabitra Dye (2 Knapp’s P.C. Caaes, 287). Here, unquestionable evidence ought

to have been given, as the alleged adoption is by parol, without deed, or delivery

of property. The alleged deed conveying

power to adopt, and the Will, are fabricated instruments. We are in possession,

under an order of a Court of competent jurisdiction.-[Lord Brougham : We think,

that the alleged Deed of gift made by Ghunsam Mookurjia, in Goluk Cbunder

Mookurjia’s favour, under which you got possession, is a forgery.]-Two verdicts

have been found against the fact of adoption by the Courts in India, and this being

a question of fact only, a Court of Common law in this country would not, in such

circumstances, grant a new trial a third time. The principle upon which this Court

proceeds in Indian [424] cases, is laid down by Baron Parke, in Khorshe&jee

Manik-jee v. MeJwwan-jee Khoorshed-jee (1 Moore’s Ind. App. Cases, 442), which is,

to affirm the judgment appealed from, unless the Court sees that the judgment is

clearly wrong. Here, both Courts have come to the same conclusion upon a mere

question of fact, and it cannot be denied, that the Courts in India have better

opportunity for examining the witnesses and arriving a t the truth, than the appellate

Court.

The onus of proof is upon the Appellant.

The Right Hon. T. Pemberton Leigh (June 25, 1849).-The suit in this case,

was instituted by the Appellant against Goluk Chunder Mookurjia, Rashanund

Mookurjia and Unoop Narain Mookurjia. The Appellant alleged, that he was

761

IV MOORE IND. APP., 4% HURADHUN MOOKURJIA

the adopted son of Ghunsam Mookurjia, the deceased brother of the Defendants.

and he prayed to be put into possession of the property of Ghunsani.

Neither Rashanund nor Unoop Narain appear to have put in any answer to this

demand, in the Provincial Court.

Goluk Chunder Mookurjia put in an answer, by which he denied the adoption

of the Appellant, insisted that he had never been separated, either in property or

l,oard, from Ghunsam Mookurjia, and alleged, that Ghunsam Mookurjia had, im-

mediately before his death, made a Deed of gift of all his property to him, Goluk

Chunder Mookurjia.

The Provincial Judge, before whom the case first came, was of opinion, that the

adoption was not proved, and that the Deed of gift to Goluk Chunder Mookurjia

was proved, and he decreed accordingly.

[425] The Sudder Court, on appeal, agreed in opinion with the Provincial Court,

that the adoption was not proved, but they disbelieved, or doubted, the genuine-

ness of the Deed of gif t to Goluk Chunder Mookurjia, and they varied, in that recipect,

the decree of the Court below, dismissing the Appellant’s suit without prejudice to

this question.

Several witnesses on the par t of the Appellant have sworn to the different facts

necessary to prove the adoption. On the other hand, the Respondents have produced

witnesses who swear to facts inconsistent with such adoption. I n such circumstances,

iiiuch must depend upon the’probabilities of the case, to be collected from those

facts, as to which both parties are agreed.

The adoption of the Appellant is alleged to have been completed in the autumn

of 1824. At this time, i t is clear, that Ghunaam was advanced in years, about

hixty-seven years old, that he had two wives to whom he had long been married,

1)y neither of them he had ever had issue, and both of whom were of such an age,

as to make it in the highest degreee improbable that he should ever have by them

a son of his body; one is stated by the Respondents’ witnesses to have been about

57, and the other a b u t 36 or 37. He seems long before this to have despaired of

having such issue, for eighteen years before he had adopted a boy called Banee

Madho, the son of his brother, Goluk Chunder Mookurjia. I n April, 1824, Banee

Madho had died, without issue. These are facts about which there is no controversy.

According to the religious tenets of the Hindoos, a man’s state, after death-his

deliverance from a place of [426] suffering called Put, (the expression used in the

translation of the documents before us, is “ his salvation,”) depends upon his

leaving a son to perform certain rites and ceremonies after his death.

That these opinions were shared by Ghunsam, is clear from the evidence produced

on both sides, and he had acted in conformity with them, by the adoption of Banee

Madho. Is i t then more probable that on Banee Madho’s death he should supply

his place by the adoption of another son, or that he should deliberately and

purposely incur the penalties which, according to his opinion, would attend the

omission to discharge this duty? The former proposition is that on which the

Appellant relies, the latter must be maintained by the Respondents.

An adoption may be made either by a man i n his lifetime, or by one of his wives

after his death, under a power conferred upon her for that purpose by her husband;

and th% case of the Appellant, is, that Ghunsam had at first, in a fit of sickness,

provided for the adoption in the latter form, but afterwards having recovered, he

made the adoption himself.

The facts establishing these propositions are sworn to by several witnesses, and

documents are produced confirmatory of their statements, and, with an exception,

to which we shall presently advert, neither the witnesses iior the documents appear

to be open to any imputation, beyond what applies to all Hindoo testimony, viz.

the facility with which false witnesses are produced and documents fabricated.

The probability in favour of an adoption of some child, being very strong, is

there any improbability that the Appellant should be the object of selection? Upon

the evidence he would appear to be the most likely to [427] be chosen. He was a

nephew of Ghunsam, the son of the Defendant, Rashanund; he was of a proper

age, living in his house, and a great favourite with Ghunsam’s sister, and Goluk

Chunder Mookurjia appears to have had nopther son of an age which would admit

of adoption.

762

From this decree of dismissal the present appeal i N brought.

‘U. MUTHORANATH MOOKURJIA [1849] IV MOORE IND. APP.. 4!28

On Ghunsam’s death, which took place o n the 30th of January, 1825, both his

wives became suttees. There is evidence that his funeral ceremonies were performed

by the Appellant ; and on the 25th of February, 1825, the Nazir of the Collectarate,

within which Ghunsam held property, reported to the Collector the death of Ghunsam,

(‘ and that he had left a n adopted son, a minor, named Huradhun Mookurjia.”

Ghunsam appears to have left surviving him, besides the three brothers already

named, Goluk, Unoop Narain, and Rashanund, a half brother, Beer Eshur.

On the death of Ghunsam, Goluk Chunder Mookurjia, either under the alleged

deed of gift, or as an undivided brother, claimed the whole of Ghunsam’s property.

I n consequence o€ these claims of Goluk Chunder Mookurjia, disputes arose,

and on the 23rd April, 1825, a petition was presented by Beer Eshur to the

Collector of Nuddea, in which the Appellant is mentioned as the adopted son of

Gliunsam, and on the 16th of May, 1825, a petition was presented to one of the

Provincial Courts, by Unoop Karain, in which the fact of the Appellant’s adoption

is distinctly dtated, and the same statement is repeated by Unoop’Narain, in an

answer put in by him in a late stage of the proceedings in this cause.

These disputes having led to some breach of the peace, the case was brought

before the Foujdarry Court. [428] An order was made, by which Goluk Chunder

Mookurjia wa8 continued in possession of the property, until the right should he

determined in the Civil Court, and in October, 1826, the plaint was filed.

The evidence of the Appellant being tmch as we have stated, the objections

made to it by the Respondents, and the counter-evidence brought forward by them,

are to be considered.

It is first said, that the Appellant’s witnesses who depose to the facts, constituting

the adoption, are for the most part in a low station of life, and likely to be influenced

by the Appellant ; but it is sufficient to state, in answer, that these witnesses depose

to the presence, on the principal occasions to which they refer, of many otlier indi-

viduals whom they name, any one of whom might have been called by the Respon-

dents, and yet not one single witness is examined for that purpose. One of the

witnesses for the Appellant is the priest who performed the religious ceremonies

of adoption. The fact of the adoption is recognized by two1 members of the family

immediately upon the death of Ghunsam, and as fa r as appears by any thing pro-

duced to us, is noh denied by any body, but Goluk Chunder Mookurjia, and his sons,

who having succeeded to his interest, are Respondents upon this appeal.

It was then said, that several of the same witnesses who have sworn to the adop-

tion, swear also that their nanm are written as witnesses to the anumati pattra, or

instrument by which power to adopt was given by Ghunsam, to one of his wives, and

that on referring to the transcript of the proceedings no names of Witnesses appear.

The original document, however, was before the [429] Court below-, and succea-

sively before several Judges, who, on other points, discredited the witnesses, and if

so palpable an ohjection to their testimony had really existed, we cannot suppose

that by all these Judges it would have been overlooked.

The evidence for the Respondents consisted mainly of the Deed of gift to Goluk

Chunder Mookurjia, and of a report made by the police of the examination of the

widows of Chunsam, on the occasion of their becoming suttees, and of alleged

vonversations with Ghunsam, in which he is stated to have declared, that he neither

had adopted, nor would adopt, another son after the death of Banee Madho.

As to the first document, the Deed of gift. we expressed in the course of the

argument, a clear opinion, that it was a forgery, and the Counsel for the Respondents

hardly ventured to maintain its genuineness.

It contains the examination of the

Police Officers, of the widows, previous to their being burned with the corpse of their

husband, and they are there stated to have declared, that they had no son nor

daughter, which it is said would not be true, i f the Appellant had been the adopted

don of their husband.

On referring to the Regulation, however, under which this official examination

takes place, as well a8 to the nature of the examination itself, we think, that the

question applies to natural-born children, and that it appears from the answer of

the widows, in this case, that they so iinderstood it, for their words are, ‘ I We have

no son nor daughter, we are barren.”

763

The other document deserves more attention.

1%' XUOORE XND. APP., 150 ~ U ~ ~ O O SOOXlUN SUNDIAL

The parol t e s t ~ ~ o n y €or the ~ e s p o n d e n ~ is open to the o ~ e r v a t ~ o n , that nearly

depose, either to the execut~on of the Deed of gif t to Goluk

o the conversat~ons with ~ h ~ i n s a ~ , in which an intent.ion to

In this state of the ev~dence~ if the case had come o r i ~ i n a ~ l y before us, we could

e had no hes~ta t~on i ho~ding, that the A p p e ~ ~ a ~ t had es ta~l~shed h is case, and

question is, whether we are to a t t r~bu te so much we~ght o the j u d ~ ~ ~ e n t s aiready

~ r o ~ o u n c e d , as to a b ~ t a ~ Eng effect to our own opin~on.

On exam~ning these s a s s ~ g ~ e d by the

to their dec~sior~. The of the ~ r o v ~ n c ~ a ~ ~ u d g e s a re such as add

Court appears to have many c ~ r c u ~ t ~ n c ~~ecessary ta the

v~l id i ty of an adoptio her usual or not) certain~y are not required

by law, and to have so f a r m i s ~ a r r ~ e d in e x a m ~ n ~ n g the evidence, or estimating its

value, as to be, of opinion that there rests no doubt on the a u t ~ ~ e n t i c j t ~ of the

Deed sf gift in the name of Goluk chunder~ ' In the Budder Court, the same error

appears to have existed, with respect to the law of adctption, as prevailed in the

inferior Court, and no a d d i t ~ o n a ~ reasons a r e ass~gned for d i s b e ~ ~ e v ~ n ~ the AppeI-

!ant's evidence.

Upon the whole, we r ~ a ~ e s t y that the ~udgment ~omp~a ined of,

ought to be reversed, t d ~ ~ ~ r ~ , that the ~ p p e l ~ a ~ t had made out

his title as the a d o ~ t e d son of ~ h u n s a ~ M o o ~ u r ~ i a , and that the case s h o ~ d be

r e ~ i ~ e d to the C o u r ~ ~ e l o ~ with this d e c ~ a r ~ t i o n a d d~rec t~on, to give ei3ect to the

appellant,^ claims in this suit, which may be c o n ~ e ~ u e n ~ ~ a 1 upon that d ~ l a r a t ~ # n .

all their witnesses

~ u ~ d e r ~ o o ~ u r j ~

make the gift is express~d. 070 that deed is pa lpab l~ a mere f a ~ r ~ c a t ~ o n .

we cannot say that the

[c$.~$'J ~~~~~~~ SO^^^^ ~ ~ ~ ~ ~ A ~ , - A ~ ~ ~ ~ ; ~~~U ~ C ~ ~ N ~ ~ ~ S E A ~

C ~ O ~ D ~ S , - ~ e ~ ~ ~ e ~ ~ * [June 27 and 28, 38491.

Two 'APPEALS.

'Where the point at issue, i s a q u e s ~ ~ o n f fact only, there is a strong p r e ~ u ~ ~ p t i o ~ ~

in favour of the j u d g ~ e n t of the Court below? as the Judges in India ~ s s e s s

a d v a n ~ g e g in f o r ~ ~ n ~ an opinion ctf the p r o b a ~ ~ ~ ~ t ~ of the t~ansac t~on , and,

in some cases, of the credit due to the w ~ t n e s s ~ ; but that does not relieve the

Court of the last resort, from the duty of e x a ~ i n i n ~ the whole evidence, and

forming its opinion upon the whole case [& Moo. Ind. App. 4331.

In a suit for mesne profits of land purchased by the ~ ~ a ~ n t i ~ from the e fendan t ,

the ~ e f e n d a n ~ pleaded, in bar to the action, deed of ~ r e e ~ e t ~ t , c o n t a ~ n i n ~

a cond~tion~ that the ~ ~ a i n t i f f , (pend~ng a suit then lately ~jrought by the

~ e f e n d a n t for reco~ery of the lands in ~ u e s t ~ o n , and until his name was

entered in the C O ~ ~ ~ C ~ O ~ * ~ S books,) should have no claim to the profits. The

ZilXah and Sudder Courts in India d ~ ~ c r ~ ~ t ~ the oral t e s t ~ o n y ~ and de-

clared the deed to be a f o ~ ~ e r y . Upon appeal, t h e ~ e d ~ ~ e ~ s were reversed ;

the Judicial C o ~ m ~ t t ~ , upon the evidence and p r o b a b ~ l ~ t ~ e ~ of the case, being

of opinion, that the circ~mstance of the vendor not being in ~osses s~on f the

lands at the time of the purchase, and that a suit was d e p e n ~ i n ~ at the time to

recover possess~on, an fag into consideration the length of time that bad

made his demand, were, e#up~ed mith the evidence

These appeals from the Sudder Court, a t engal, were made in two separate

* Present : ~ e ~ b e r s of the Jud~cial C o ~ m ~ t t e e , - ~ o I . ~ ~ r o u ~ h a r ~ , Lord Lane;-

Privy Gouncilbr,-Assessor,-~~r E. Ryan, Ent.

facts in favour of the deed of a~reenlent.

_c_ - ___I .I__I__^ -- l-l~-____.^

dale, the Right Hon. Dr. ~ ~ s h i n ~ o n , and the ~ i g h t Hon. 2%. emh her ton I&&.

764