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Huradhun Mookurjia v. Muthoranath Mookurjia (India)
Structured Summary of the Provided Opinion
Factual and Procedural Background
This is a dispute about the succession to the real and personal estate of Ghunsam Mookurjia, deceased. The Appellant (Huradhun Mookurjia) — at the time a minor and later represented by guardians — claimed the estate as the adopted son of Ghunsam Mookurjia. The Respondents (including Goluk Chunder Mookurjia and, later, his sons Muthoranath Mookurjia, Nubkishen Mookurjia, and Ram Chunder Mookurjia) claimed the estate by virtue of a hibbanama (deed of gift) executed in favour of Goluk Chunder and/or as undivided brothers entitled under family partnership arrangements.
Key factual elements appearing in the opinion: Ghunsam had previously adopted a nephew, Banee Madho, who died in 1824 in Ghunsam’s lifetime. After Banee Madho’s death, Ghunsam executed an anumati pattra empowering his second wife to adopt a son; that power was alleged not to have been exercised. Ghunsam died on 30 January 1825; his two widows became suttees. The Nazir reported on 25 February 1825 that Ghunsam had left an adopted son, "a minor, named Huradhun Mookurjia."
Procedural history (as stated in the opinion): The guardians of the Appellant filed a plaint in the Provincial Court of Calcutta (filed on 7 October 1825) seeking possession on proof of adoption. The Provincial Court (Judge Middleton) dismissed the claim by decree dated 17 February 1831. The guardians appealed to the Sudder Dewanny Adawlut at Calcutta. The Sudder Court (Judges Braddon and T. C. Robertson) also concluded that adoption had not been proved but doubted the genuineness/effect of the deed of gift to Goluk Chunder and modified the Provincial decree so that it would not operate as a bar to claims by other brothers. A petition for review was refused. The Appellant appealed further to Her Majesty in Council (the Judicial Committee / Privy Council), which delivered the opinion summarized here.
Legal Issues Presented
- Whether Ghunsam Mookurjia had actually adopted Huradhun Mookurjia in accordance with Sastra (i.e., whether the adoption was proved).
- Whether the deed of gift (hibbanama) from Ghunsam in favour of Goluk Chunder Mookurjia was valid and genuine (and thus whether Goluk Chunder was entitled to the estate by that instrument or as undivided brother).
Arguments of the Parties
Appellant's Arguments (as advanced by his counsel)
- The evidence produced in the courts below (by the Appellant’s guardians) sufficiently established adoption by Ghunsam Mookurjia.
- Probabilities favour adoption: Ghunsam was old, improbably able to have natural issue, had previously adopted a son who died in his lifetime, and had given a power (anumati pattra) to his wife to adopt — all pointing to an intention to have an adopted son to perform funeral rites.
- Religious tenets (Hindu law) made such an adoption highly probable because performance of funeral rites by a son was necessary for the deceased’s salvation.
- Even where evidence is conflicting, precedent (e.g., Ringamna v. Aechema / Moore’s cases) shows the decision should turn on probabilities collected from agreed facts.
- The interim order by the Foujdarry Court leaving possession with Goluk Chunder was only provisional pending the civil suit.
Respondents' Arguments (as advanced by their counsel)
- The evidence relied on to prove adoption was principally the testimony of strangers and servants, persons of low station, and thus unworthy of credit; the onus of proof lay on the Appellant.
- Great strictness is required to prove an adoption alleged to have been made by parol, without deed or delivery of property; the anumati pattra and the wusseeyutnama were alleged to be fabricated.
- The deed of gift (hibbanama) in favour of Goluk Chunder was relied upon to establish the Respondent’s title; some witnesses for Respondents testified to events and ceremonies inconsistent with adoption.
- Two competent courts in India (Provincial and Sudder) had reached the same conclusion of fact (that adoption was not proved), and appellate practice was to affirm unless the judgment was clearly wrong.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| 4 Moo. Ind. App. 426 | That adoption may be made either by a man in his lifetime or by his widow after his death under a power conferred on her by her husband. | Used to state the recognized modes of adoption relevant to Ghunsam’s having given an anumati pattra and to the Appellant’s claim that Ghunsam himself later adopted the child. |
| 4 Moo. Ind. App. 425 | Where evidence is conflicting on fact of adoption, much depends upon probabilities collected from facts agreed by both parties. | Applied by the Court to weigh undisputed facts (age of Ghunsam and wives, prior adoption and death of Banee Madho) in assessing whether adoption of Huradhun was probable. |
| 4 Moo. Ind. App. 430 | Where evidence supported adoption, a presumption may favour adoption and be sufficient to establish title. | Cited in the opinion's opening passages to show instances where an appellate court reversed earlier findings and treated presumption in favour of adoption as decisive. |
| Ringamna v. Aechema (4 Moore’s Ind. App. Cases, p. 104) | Even if evidence is contradictory, the decision must turn upon probabilities gathered from established facts. | Relied upon by Appellant’s counsel and by the Court to justify resolving the conflict of testimony in light of strong probabilities favouring adoption. |
| Shamchunder v. Narayi Dibeh (1 Ben. Sud. Dew. Rep. 209) | Cited as authority that certain facts (e.g., prior adoption, infirm health, inability to have issue) are strong inferences favouring adoption. | Invoked by Appellant’s counsel to support the argument that such facts make adoption probable. |
| Goureepershaud Rni v. Mussumvinut Jynzala (2 Ben. Sud. Dew. Rep. 136) | Also cited by Appellant’s counsel as a case supporting inference of adoption from surrounding facts. | Used to reinforce the contention that the surrounding circumstances point to a real adoption. |
| Mussammat Malabh Dev v. Manu Bibi (5 Ben. Sud. Dew. Rep. 50) | Cited among cases indicating circumstances that manifest intention to adopt. | Supported the Appellant’s submission about the strength of surrounding circumstances. |
| Sootruyun Sutputty v. Sabitra Dye (2 Knapp’s P.C. Cases, 287) | That unquestionable evidence ought to be given to prove an adoption by parol without deed or delivery of property. | Used by Respondents’ counsel to argue that the Appellant’s parol evidence was insufficient and deserved distrust. |
| Khorshedjee Manik-jee v. MeJwwan-jee Khoorshed-jee (1 Moore’s Ind. App. Cases, 442) | Appellate principle (as stated by Baron Parke): affirm judgment appealed from unless the Court of Appeal sees it is clearly wrong. | Cited by Respondents’ counsel to urge deference to the factual findings of the Indian courts below. |
Court's Reasoning and Analysis
The Judicial Committee examined the whole evidence and the findings of fact by the courts below. It undertook the following analytical steps, as set out in the opinion:
- Identify the central inquiry as whether Ghunsam had actually adopted Huradhun according to Sastra.
- Recognize that the evidence was conflicting and that, in such circumstances, probabilities drawn from undisputed facts must be decisive (relying on previously cited authorities).
- Set out undisputed factual probabilities favourable to adoption: Ghunsam’s advanced age (about sixty-seven), long marriage to two wives who had produced no issue and were of an age making natural issue improbable, the prior adoption of Banee Madho (who died in April 1824), and the religious tenets that made leaving a son to perform funeral rites critical to a man’s "salvation." The Committee noted that these facts were not in controversy.
- Consider the Appellant’s specific evidentiary support: witness testimony (including a priest who performed religious ceremonies) and documentary evidence (anumati pattra and a wusseeyutnama) purporting to support adoption and the performance of Ghunsam’s funeral rites by the Appellant. It noted that the Nazir had reported an adopted son after Ghunsam’s death.
- Review the Respondents’ evidence: the deed of partition (1792), the deed of gift purportedly dated 30 January 1825 (hibbanama), police reports of the widows’ examination, and witness statements alleging that no adoption had taken place and that Goluk Chunder had performed funeral ceremonies.
- Evaluate credibility and documentary authenticity issues identified by the courts below: the Provincial Court had discredited the Appellant’s witnesses and documents (noting the anumati pattra and wusseeyutnama lacked signatures of brothers/friends, were unregistered, and lacked the kazi's seal); the Sudder Court agreed that adoption was not proved and expressed doubt about the hibbanama because it was made very near the time of death.
- Assess specific objections raised by Respondents (e.g., that witnesses were of low station and some witnesses claimed their names appeared on the anumati pattra although the transcript did not show them). The Judicial Committee observed that the original document had been before the lower courts and successive judges had considered these objections; thus the Committee could not suppose such an obvious defect would have been overlooked by all those judges if it existed.
- Examine the hibbanama (deed of gift) evidence: the Committee expressed a clear opinion in argument that the deed of gift was a forgery and observed that Respondents’ counsel did not strongly maintain its genuineness. The Commission also reviewed the police examination of the widows and concluded that the official question related to natural-born children and that the widows’ answers were consistent with that interpretation ("We have no son nor daughter, we are barren").
- Consider whether the lower courts had erred in applying the law of adoption: the Committee found that the Provincial and Sudder judges had applied certain requirements (such as extreme publicity, the presence of Guru/Purohita and many relations) as essential in a way that was not strictly required by law, and in doing so had misappreciated the credibility and weight of the Appellant’s evidence.
- Conclude on balance that, had the case originally come before the Committee, there would have been no hesitation in holding that the Appellant had established his case; and that the judgments below were wrong to the extent they dismissed the claim for adoption. The Committee therefore concluded that the judgment complained of ought to be reversed and that the Appellant had made out his title as the adopted son of Ghunsam Mookurjia.
Holding and Implications
HOLDING: The Judicial Committee reversed the judgment of the courts below, declared that the Appellant had established his title as the adopted son of Ghunsam Mookurjia, and directed that the case be remitted to the Court below with a declaration and directions to give effect to the Appellant’s claims in the suit.
Implications and direct consequences:
- Direct effect on the parties: The Appellant (Huradhun Mookurjia) was judicially declared to have established his title as the adopted son of the deceased Ghunsam Mookurjia; the matter was remitted to the lower court to give effect to that declaration in relation to the suit for possession.
- On precedent or broader law: The opinion discusses and applies established principles (e.g., assessment of probabilities in conflicting evidence, standards for proving parol adoption, and deference to findings of Indian courts) but does not state that it creates a novel general rule or announces a new binding precedent beyond its application to the facts of this case.
Note: This summary is strictly limited to and derived from the information contained in the provided opinion text. No outside facts or inferences beyond the opinion have been added.
~ ~ 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
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