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Chuoturya Run Murdun Syn v. Sahub Purhulad Syn (India)
Chuoturya Run Murdun Syn v. Sahub Purhulad Syn
Reported: [1857] VII Moore Ind. App. — Appeal from Sudder Dewanny Adawlut (Calcutta). Judgment delivered by Sir Edward Ryan (Feb. 25, 1858, judgment reserved and delivered thereafter).
Factual and Procedural Background
This opinion concerns a long-contested succession to the Rajdom and Zemindary of Ramnuggur (Zillah Sarun, Presidency of Bengal), after the death of Rajah Umur Purtab Syn (d. Nov. 1834), who had previously succeeded his half-brother Rajah Tej Purtab Syn (d. June 1832). The principal competing claims were:
- The Appellant, Chuoturya Run Murdun Syn, claimed to be the legitimate son of the deceased Rajah by an alleged first wife, Ranee Lutchmee Dya Dabee, and asserted his right to succeed as heir (he produced evidence of investiture with sacerdotal cord, the family title "Chuoturya", marriage into a Rajpoot family, and other indicia of acknowledgment by the Rajah).
- The Respondent (Sahub Purhulad Syn) originally sued on behalf of his infant son, Futeh Bahadoor Syn, asserting that a purported Ijazut Puttur (power/will) conferred the Rajdom on the infant; that instrument was later found to be forged by the lower court proceedings. The Respondent then, by supplemental petition, claimed in his own right as the nearest male agnatic relative.
- Other claimants included Oodey Purtab Syn, surviving widows, and the Government (claiming by escheat).
Procedurally, two suits (one by Oodey Purtab Syn and one by the Respondent on behalf of his infant) were heard before the Zillah Court and dismissed in May 1839 (for reasons including forged instruments and other procedural grounds). Appeals were taken to the Sudder Dewanny Court. The Sudder Dewanny Court remitted certain inquiries (including caste and legitimacy questions) to the Principal Sudder Ameen for fuller investigation (order dated 23 May 1842). After retrials and consideration of bywastas (opinions) from pundits and extensive evidence, the Principal Sudder Ameen (Feb. 1845) held that the Appellant had not proved the marriage (thus not legitimate) but awarded the Appellant maintenance (Rs. 6,000 per annum). The Sudder Dewanny Court (9 Sept. 1846) affirmed the Zillah Court in other respects but reversed the allowance of maintenance. The present appeal lies from that decree of the Sudder Dewanny Court to the Privy Council.
Legal Issues Presented
- Whether the Appellant was the legitimate son of Rajah Umur Purtab Syn (i.e., whether the marriage between the Rajah and Ranee Lutchmee Dya Dabee was proved) and thereby entitled to succeed to the Rajdom and Zemindary.
- If not legitimate, whether the Appellant (as an illegitimate son of a Rajpoot/Khatri) was nonetheless entitled to inherit the Rajdom and Zemindary under Hindoo law applicable in the district.
- Whether, in any event, the Appellant (if illegitimate) was entitled to maintenance out of his deceased father's estate and if so in what amount (the Zillah Court had fixed Rs. 6,000 per annum).
- Ancillary: the proper classification of Rajpoots (whether Rajpoots are Khatris/regenerate class or to be treated as Soodras) and the consequence of that classification for succession of illegitimate children.
Arguments of the Parties
Appellant's Arguments
- The evidence establishes that the Appellant was the legitimate son and heir of the late Rajah: investiture with the sacerdotal cord, assumption of the title "Chuoturya" (alleged to be used only by heir apparent), living and eating with the Rajah, his performance of funeral rites, marriage into a Rajpoot family, and documentary evidence (e.g., purchase in the Appellant's name described him as the Rajah's son).
- Even if the factum of marriage were not conclusively proved, the Appellant argued that he had been acknowledged by his father and thus should succeed; alternatively, if both parents were not married, as the son of a Rajpoot who is a Soodra the Appellant (even if illegitimate) could inherit under certain interpretations.
- Counsel contended that proceedings after the Respondent's November 1842 petition constituted a new litigation, and therefore the Appellant should not be limited by pleadings in earlier suits; the Appellant should have been free to set up his full case in the new contest.
- The Appellant criticized reliance on a bywasta from the Patna pundit because it purportedly proceeded on assumed facts (that the Appellant's mother was a Soodra) not admitted or proved.
Respondent's Arguments
- The Appellant failed, despite full opportunity, to establish by adequate evidence the marriage between the Rajah and the Appellant's mother; witnesses for the Respondent (including local native gentlemen and Rajahs) positively testified that the marriage never took place as alleged.
- The Appellant's mother was a slave-girl/concubine and, under the Hindoo law as applied where the property is situated, the illegitimate son of a regenerate (twice-born) class (such as a Rajpoot/Khatri) is not entitled to inherit the father's estate, but only to maintenance.
- The Appellant's indicia (title, investiture, living with father) might have weight if marriage were proved, but they do not overcome the positive testimony presented on re-trial; the burden of proof was on the Appellant and he did not call further oral evidence on the key issue.
- The Respondent also asserted his own right in his supplemental petition as the nearest male agnatic kinsman and urged that the forged Ijazut Puttur could not support the infant's claim originally asserted.
Table of Precedents Cited
| Precedent / Authority | Rule or Principle Cited For (as stated in the opinion) | Application by the Court (how the opinion used it) |
|---|---|---|
| Macnaghten, "Principles of Hindu Law" (vol. ii, p. 119; vol. i, p. 59) | That the illegitimate son of one of the regenerate tribes (e.g., a Rajpoot/Khatri) is entitled to maintenance only; also commentary on prohibitions of certain marriages (Khattri marrying Soodra woman). | The Court relied on Macnaghten to state the orthodox rule applied in the district: illegitimate children of regenerate tribes do not inherit but are entitled to maintenance. |
| Mitacshara (as translated in Colebrooke's Digest and cited passages; ch. i, sec. xii; ch. i, sec. 11) | Rule that the son begotten by a man of a regenerate tribe on a female slave does not obtain a share by inheritance (though may receive simple maintenance); special rules for Soodras where illegitimate children may share differently. | The Court used the Mitacshara (via Colebrooke) as primary textual authority distinguishing rights of illegitimate children across castes; this supported the conclusion that the Appellant (illegitimate of a regenerate tribe) could not succeed. |
| Colebrooke's Digest (translation of Hitacshara, Daya Bhaga, etc.) | Translation and exposition of Hindoo law on inheritance: distinctions between regenerate classes and Soodras, and rules on sons by slave-women. | Used as the standard authority on Hindoo law foundational to the Court's determination of succession rules in the region. |
| "Daya Bhaga" of Jimutavahana (as translated and cited) | Doctrine consistent with Mitacshara: statements on rights of sons by female slaves and differences by caste. | The Court cited it as corroborative authority for the rule that illegitimate sons of regenerate tribes are not inheritors but are entitled to maintenance. |
| Strange, "Hindu Law" and Strange's reported decision (Notes of Cases) | Reported decision and commentary: illegitimate children of Soodras inherit; illegitimate children begotten by a regenerate man are entitled to maintenance only. | The Court cited Strange's exposition and decisions to support the distinction between Soodra and regenerate rules and to confirm the prevailing view adopted in Bengal. |
| Ayeen Akbery (Ayeen Akberi), Vishnu Purana, Ward, Tod, Malcolm, Steele (various works cited) | Authorities and historical/ethnographic writings referenced concerning the state and existence of Khatri/Kshatriya classes and the character of Rajpoots (i.e., whether Rajpoots are Khatris/regenerate). | The Court used these sources (and especially Dr. Buchanan's district report as quoted in Martin's "India") to conclude that the Khatri class subsists in the relevant region and that Rajpoots there are to be regarded as of the Khatri class for the purpose of applying Hindoo succession rules. |
| Dr. Francis Buchanan's report (in Martin's "India") | Ethnographic/statistical observation that in Goruckpoor Rajpoots are everywhere admitted to be Khatris. | The Court relied on Buchanan's local observations to affirm that Rajpoots in the district are considered Khatris, which is material to applying the correct caste-based rule of inheritance. |
| Pershad Singh v. Ranee Euhesiwe (3 Ben. Sud. Dew. Rep. 132) (cited) | Excerpted marginal note: "According to Hindoo law, an illegitimate son of a Rajpoot or any of the three superior tribes, by a woman of the Sudra or other inferior class, is entitled to maintenance only." | The Court cited this reported case as precedent consistent with the principal texts and applied the same principle to the Appellant's status. |
| Local reported case references and notes (e.g., Mohun Sing v. ... (1 Ben. Sud. Dew. Rep. 28) referenced) | Referenced in argument on the question of custom and inheritance by illegitimate sons where a local custom might alter the general rule. | The Court noted the existence of reported local decisions and considered whether any local custom existed to alter the general rule; it found no sufficient custom to depart from the general authorities. |
Court's Reasoning and Analysis
The court's analysis proceeded in clear stages, staying strictly within the evidence and authorities referenced in the record:
- On the primary factual question of the marriage (factum matrimonii) between the late Rajah and the Appellant's mother, the court found that the Appellant had failed to establish the marriage by satisfactory evidence. The retrial before the Principal Sudder Ameen produced many witnesses (including native gentlemen and local Rajahs) positively testifying that no such marriage took place in the time and manner alleged. The Appellant, who bore the onus of proof, did not call fresh oral evidence at the retrial to meet this testimony. The court therefore accepted the lower courts' factual finding that the marriage was not proved, and that the Appellant could not be treated as a legitimate son for purposes of succession.
- Having accepted paternity but rejected legitimacy, the court turned to the applicable Hindoo law on succession of illegitimate children. It reviewed textual authorities (Mitacshara, Daya Bhaga, Colebrooke's translations, Macnaghten, Strange) and local ethnographic and legal materials bearing on caste classification (Ayeen Akbery, Ward, Tod, Malcolm, Steele, and Buchanan's report as printed in Martin's India). The court concluded that Rajpoots in the district are regarded as Khatris (one of the regenerate/twice-born classes), and that the Khatri class survives in India and in Central India.
- Applying the orthodox rule derived from the cited authorities, the court held that an illegitimate son of a man belonging to one of the three regenerate tribes (including Khatris/Rajpoots) is not entitled to succeed to his father's inheritance; rather, such an illegitimate son is entitled to simple maintenance out of the father's estate. The court explicitly rejected the Appellant's reliance on an opinion (bywasta) that Rajpoots should be treated as Soodras so as to allow inheritance by the illegitimate son; the court found that premise to be without foundation in respect of the district at issue.
- Finally, the court addressed the specific appellate disagreement: the Zillah Court had awarded Rs. 6,000 per annum for the Appellant's maintenance, but the Sudder Dewanny Court had reversed that allowance. The Privy Council found no basis in the record to uphold the reversal of the maintenance award: authorities uniformly recognize the right to maintenance for an illegitimate son of a regenerate tribe, and there was no showing that the sum fixed was excessive. The court therefore recommended reversal only as to that portion of the Sudder Dewanny Court's decree which disallowed maintenance.
- The court considered (and rejected) the Appellant's submission to remit the entire matter to India for further inquiry into historical or caste questions: the record already contained the specific inquiries directed by earlier orders and the Appellant had full opportunity to adduce evidence on every element material to his claim. The Privy Council therefore decided the substantive questions on the record before it.
Holding and Implications
Holding:
The Privy Council gave the following dispositive directions:
- The appeal is dismissed as to the Appellant's claim to succeed to the Rajdom and Zemindary; the Appellant failed to prove legitimacy (marriage) and, in any event, an illegitimate son of one of the regenerate tribes (a Rajpoot/Khatri) cannot inherit the estate.
- The appeal is allowed to the limited extent of restoring the Appellant's right to maintenance: Their Lordships recommended reversing the Sudder Dewanny Court's decision so far as it had reversed the Zillah Court's allowance of maintenance, declaring that the Appellant, as the illegitimate son of the late Rajah, was entitled to maintenance out of the father's estate at the rate fixed by the Principal Sudder Ameen (Rs. 6,000 per annum as fixed by that court), and remitted the case to India for the purpose of giving effect to that declaration.
- The appeal is otherwise dismissed (the Appellant's broader succession claims fail), and the Privy Council ordered that the appeal be dismissed without costs (the Appellant in part succeeded only on the maintenance point).
Implications
- Direct effect on the parties: the Appellant does not obtain the Rajdom or Zemindary as heir-at-law but is entitled to maintenance from his deceased father's estate (the Zillah Court had fixed Rs. 6,000 per annum; the Privy Council endorsed the Appellant's entitlement to maintenance and ordered the matter remitted so that the allowance might be given effect).
- Broader legal implication (limited and fact-specific): the decision reiterates and applies the established rule in the Bengal jurisprudence and classical Hindu authorities that the illegitimate son of a man of a regenerate (twice-born) class (here, Khatri/Rajpoot) is not to succeed to paternal inheritance but is entitled to maintenance; the Court also affirms that Rajpoots in the relevant district are to be treated as Khatris for purposes of Hindu succession law. The opinion does not purport to create a new general precedent beyond applying and consolidating existing textual and local authorities.
End of summary based exclusively on the supplied opinion text. No information beyond the provided excerpt has been added.
~HUOTURYA R. M. SYN ‘U. SAHUB PUR. SYN [I8571 VI1 OR^ END. APP., 19
C H ~ ~ T ~ ~ ~ A IWFJ ~ 1~ ~~ S ~ ~ , ~ ~ ~ e ~ ~ u ~ ; SAHUB ~ ~ R H J ~ A D SPN, -
~ ~ e ~ ~ ~ ~ ~ ~ t ~ [Nov. 27, 28, and 30, and Dec. 8, 3.8571.
On appecat from the ~ ~ { ~ ~ e ~ ~~~~~~~ Adawlat at Calcutta.
An ~ll€giti~nate son of a Khat$, one of the three regenerate castes, by a Soodra
women, cannot by the Hindoo law of inher&ance, succeed to the inheritance
of his putative father ; but he is entitled to ma~ntenance out of his deceased
father’s estate [7 Moo. Ind. App. 50, 511.
So held in the case of a disputed succession to the Rajdom and Zeniindary of
Ramnuggur, in the Presidency of Bengal, the Rajah last seized, the putative
father, being a Rajpoot of the Khatri class.
Ssczts. In the case of the Soodra class, i I le~~t i ina te children being ~ u a ~ i f i e d to
inherit.
inquiry into the history of the Khatri class. Such class held not to have lost
caste and sunk into the Soodra class [7 Xoo. Ind. App. 45, et 3q.1.
The Rajpoots of Central India, and in the District where the Rajdorn of Ram-
nuggur is situate, held to be of the Khatri class, and that the right of suc-
cession to the Raj and ZeInindary was to be determined by the Iaws and
custoins of that class.
The question in this appeal involved the right of succession to a Raj ; the issue
raised being, whether E191 the ~ p p e l l a n t was, according to the Hindoo law and right
of caste, entitled to succeed to the Rajdom and Zemindary of Ramnuggur, in the
District of Sarun, in the Presidency of Bengal.
The circumsta~ces out of which the appeal arose were as follow:-
The late Rajah Uniur Purtab Spn died on the 26th of November, 11334, being at
the time of his death in the undisputed possession of the estate, the right to which
formed the subjectmatter of this appeal. ]Me was the half brother of Rajah Tej
Purtab Syn, who died on the 1st of June, 1832, leaving three widows, ~ ~ l i a r a n e e
Telotman Dabee, RaneJ Shree Kanta Dabee, and Ranee Tej Koomaree Dabee, him
surviving, Soon after his death, his widow, Maharanee Telotman Dabec, asserted
a claim to the whole of the Rajdom, by virtue of a deed of gift, alleged to haoe heen
esecuted by her ~ ~ ~ ~ s b a n d in his lifetime ; and a dispute having arisen between her
and the late Bajrth Umur Purtab Syn, as to the right of succession to the Rajdom
and ~ e i ~ i ~ d a r y , such dispute was ~ l t i ~ n a t e l y compromised by the ~ a h a r a n e e Telot-
man Dabee agreeing to accept during her life the revenue of thirty-niI~e of the
villages batonging to the Rajdom and Zemindary for her maintenance, and she
thereupon withdrew her claim to the rest of the property.
The late Rajah Umur Purtab Syn was a Rtijpoot, and had, as i t was alleged, three
wives. By the first alleged wifs, Ranee Lutchmee Dya Dabee, who prede~eased him,
he had one son, the Appellant. This marriage was denied by the ~espondent) and
that fact was one of the questions in dispute. We had no children by his two other
wires, one only of whom, Ranee Umur Raj Lutchmee Dabee, survived him. For
[20] several months previous ta his death, the Rajah, being unequa~ to the transac-
tion of public business, with the view of providing for the eEcient discharge of the
duties of the Rajdom, formally invested the Appellant co-ordinately with himself
with all proper authority for the conduct and ~anagen ien t of the affairs of the Raj-
dom. For about three weeks previously to his death, the Rajah was both physically
and mentally incapable of any effort. Upon his death, the Appellant performed
his obsequies. His widow, Ranee Umur Raj butchmee Dabee’s name was entered
on the ColIector’s books as heir, and she entered into the possession and beneficial
occupation of the Rajdom, and continued in such occupation until her death, which
event took place on the 24th of February, 1840. Shortly after her death, the Col-
lector of the District was directed to keep the estate under attachment until the
* Present: The Eight Hon. The Lord Justice Knight Biwce, the Right Bon. T.
Pemberton Leigh, the Right Hon. Sir Edward Ryan, and the Bight Hon. The Lord
Justice Turner,
21 7
VIZ MOORE IND. APP., 21
title to its succession, which had in the meantime been claimed hy several persons,
and, among others, by the Gorrernment claiming by escheat, was ascertained.
The first of such claims %as made on the 31st of August, 1835, by a suit instituted
i n tlie Zillah Court at Sarun, by Oodey Purtab Syn, against Maharanee Telotman
Dabee, Ranee Sree Kanta Dabee, and Ranee Tej Koomaree Dabee, the three widows
of the Rajah Tej Purtab Syn, and against Ranee Umur Raj Lutchmee Dabee, and the
Appellant, in which suit the Plaintiff alleged that the Appellant was the son of a
slave girl. The Plaintiff founded his claim to the succession as being heir to the late
Rajah Urnur Purtab Syn.
On the 5th of May, 1836, another suit was instituted for possession of the entire
villages appertaining [Zl] to the Rajdom by the Respondent, then suing as father
and guardian of his son, Kuteh Bahadoor Syn, an infant, against the aforesaid
widows of the Rajah Tej Purtab Syn; Ranee Umur Raj Lutchmee Dabee; and
Oodey Purtab Syn. T!ie claim of the infant, Futeh Bahadoor S p , was based on the
allegation, that the late Rajah Cmur Purtab Syn had, while d~ngerously iI1 and
despairing of fife, executed an Ijazut Puttur (Power and Will) in favour of the
three widows of his deceased Frother, the Rajah Tej Purtab Syn, and of his own
vvidow, Ranee Umur Raj Lutchmee Dabee, directing them f o confer the Rajdom after
liis death, upon the infant, Futeh Bahadoor Syn ; that, in pursuance of such direction
and authority, a Soorut Ha1 (representation of facts) acknowledging the right of
Futeh Bahadoor Syr, had been agreed to by the four widows, and duly attested by
the Raj Gooroo and Purohuts (Head Priest and Priests) and other respectable
men ; and that, after the expiration of the usual term of Birkhee (mourning) the
Rajdom had been duly conferred, by the above named four widows, upon the infant,
Futeh Bahadoor Syn.
On the 9th of June, 1836, Maharanee Telotman Dabee put in her answer to the
plaint of Oodey Purtab Syn, and in that answer, for t.he purpose of showing the
invalidity of the claim in that suit, she relied upon the alleged bestowal of the
Rajdom on the infant, Futeh Bahadoor Syn, in the manner asserted by the Respon-
dent in his plaint ; and she also alleged that Ranee Gmur Raj Lutchmee Dabee had,
same t h e previously thereto, recognised and acknowledged the Appellant as the
son of the late Rajah Umur I’urtab Syn.
The answer of Ranee Umur Raj Lutchmee Dabee to the plaint of the Respondent,
was put in on the 6th [22] of October, 1836, some time before the Appellant was
made a party to that suit ; and in that answer she urged among other reasons, against
the validity of the infant’s claim, that the Ijazut Puttur could never have been
executed by the late Rajah IJrnur Purtab Syn while the Appellant, his son, was alive ;
and she there inaccurately stated, that the Appellant was the son of the second wife
of the late Rajah Umur Purtab Syn.
On the 11th of March, 1837, the Respondent, in his then character of guardian of
his infant son, Futeh Bahadoor Syn, filed his replication, relying upon the validity
of the Ijazut Puttur, aiid on the subsequent bestowal of the Rajdom in pursuance
thereof by the abov~named four widows.
On the 7th of January, 18.38, Ranee Uniur Raj Lutchmee Dabee filed her rejoinder
to the plaint, wherein she repudiated the claim made on the infant’s behalf by the
Respondent as fx audulent.
Bv an Order of the Zillah Court, bearing date the 26th of March, 1838, the
Appellant was for the first time called upon to oppose the claim asserted by the
infant son of the Respondent ; the Appellant accordingly appeared, and was instru-
mental in refuting and exposing the fabricated evidence and forgery upon which the
claim of the Respondent’s son was based: but, as that claim was also founded upon
the imputation of the Appellant being ,Ilegitiniate, and as such incapable of in-
heriting, the Appellant’s pleading and evidence was principally directed to the
repudiation of such a charge, and he adduced several witnesses to prove the marriage
between the late Rajah Umur Purtab Syn and his mother.
On t& 7th of July, 1538. a supplementary [23] petition was filed in this suit by
Ranee Umur Raj Lutchmee Dabee and the Appellant, for the purpose of correcting
the statement made in the answer of Ranee Umur Raj Lutchrnee Dabee, to the effect
that the Appellant was the son of the second wife of the late Rajah Umur Purtab
218
CHUOTURYA RUN MURDUN STN
‘U. SAHUR PURHULAD SYN [ 18571 VI1 MOOEE IND APP., 24
Syn, and of recording that the AFpellant was the son of the late Rajah Umur Purtab
Syn by his alleged first wife, Ranee Lutchmee Dya Dabee.
The suit of the infant, Futeh Bahadoor Syn, by his guardian, the Respondent,
together with the other suit, in which Oodey Purtab Syn was Plaintiff, came on for
liearing before the Zillah Court a t Sarun, 011 the 7th of May, 1839, on which occasion
1)oth suits were dismissed with costs, and the claim of the infant, Futeh Bahadoor
Spn, was adjudged to have been based on fabricated evidence and forgery. The
reasons given by the Court for dismissiq the suit of Oodey Purtab Syn were, that,
although the present Appellant had been proved to be the son of Rajah Umur Purtab
Syn, the question of hiti title to succeed to the Rajdom in the lifetime of Ranee
Umur Raj Lutchmee Dabee was not one which arose in that case, because between
him and the Ranee Umur Raj Lutchrnee Dabee there was no disagreement or com-
iilaint; and, whether the present Appellant was entitled o r not to the Rajdom, the
Plaintiff, Oodey Purtab Syn, on the plea of being connected in the agnatic line,
could have no right to possession during the life of the Ranee.
Against the dismissal of these suits, Oodey Purtab Syn, and the Respondent on
behalf of his infant son, respectively appealed to the Sudder Dewanny Court.
[24] After the appeal of Oodey Purtab Syn had been presented, before any further
proceeding was taken, and on the 24th of February, 1840, Ranee Umur Raj Lutchmee
Dabee died, and thereupon the Plaintiff, Oodey Purtab Syn, and the Respondent (as
father and guardian of the infant, Futeh Bahadoor Syn), each presented separate
petitions to the Sudder Dewanny Court, claiming the heirship to the deceased Rajah
Uniur Purtab Syn, and Mr. John Fleming Martin Reid, one of the Judges of the
Sudder Court, erdered: that the Principal Sudder Ameen of the Zillah Court should
receive their proofs of being heirs to the deceased, while in the interval the estate of
the deceased was to be attached by the Collector under the order of the Judge, and
placed under a manager. A proclamation was also issued, under the Order of the
Sudder Court, for the attendance of the heirs of the deceased, under which the Plain-
tiff, Oodey Purtab Syn; the Respondent, as guardian aforesaid ; the two surviving
widows of Rajah Tej Purtab Syn, and the present Appellant, attended before the
Zillah Court to prove their respective claims to heirship ; such proofs as were offered
by them respectively were taken by the Principal Sudder Ameen of the Zillah Court,
and forxarded to the Sudder Court.
After these proceedings had been taken, and on the 7th of November, 1840, the
papers were again brought before Mr. Reid, who considered it proper to take a
Bywasta (opinion) from the Pundit attached to the Sudder Court, on the question,
whether among Hindoos, a son by a woman of unequal rank, while lineal relations
were forthcoming, would be entitled to inherit the Astate of his deceased father. To
which the Pundit stated his opinion to the following effect :-[25] “ To the best of
m y judgment, among Hindoos of the Rajpoot caste, a son who is not born from a
woman of equal rank and caste, can be reckoned as son, and will be entitled t o the
estate of a deceased father, a near relative of lineal descent living notwithstanding ;
because a Rajpoot is of the Soodra caste, and a son born t o an individual of the
Soodra caste, even from the womb of a slave, etc., such son is reckoned his son by the
Shaster laws, and is entitled to succeed to his father’s estate, a near relative of lineal
descent living notwithstanding; ” and he added, ‘‘ T’he meaning of the Guranth
Mootuchtera, etc., is, that a son born of a slave woman, that is, of an unmarried
woman of the Soodra caste, during the lifetime of his father, according l o his father’s
pleasure, can obtain a share of his property; and after the death of his father,
brothers born in wedlock from a woman of the Soodra caste are required to give to
their illegitimate brother a share in the property of the father, in proportion to
one half of their own share; but if there be no legitimate offspring, that is to say,
no issue from a married woman, in such a case the illegitimate son from an un-
married Soodra woman will be entitled to the whole of his father’s estate.”
On the 5th of February, 1841, the case in YThich Oodey Purtab Syn was Appellant,
was again brought before Mr. Reid, together with the Bywasta and the papers in the
infant’s suit; when Mr. Reid held, that although the Bywasta was in favour of the
present Appellant, it was inexpedient to consider the case summarily and without
going into its full merits, as well as into the case of the infant then suing by the
Respondent, his guardian, inasmuch as it also related to a claim of inheritance of
919
VEX ~~0~ INIf, APP., 26 CKCOTURSA RUN MURDUN SYN
the property of the late [26] Rajah rirrtur I’urtab S p and he accordingly adjudged
that, until the decision of the two cases, th8 property in dispute should continue
attached by the Collector ; and that it was proper that the two cases should be taken
up and tried together, without regard to their respective ~~unibers ; and that all
~ l a i ~ ~ ~ a i ~ t s should be left at liberty to come forward; and that the name of the
individual whose claim to the estate should be found good and valid, was to be
entered in the Collector’s records ; and that it was ~ ~ c u ~ n b e ~ t on all parties to take
early steps t o bring the subject-matter of both the cases to a speedy termination.
On the 23rd of May, 1842, the two cases came on to be heard before Mr. Edward
Lee ~ ~ ~ a r ~ i e r , and Nr. Janies Shaw, two other of tBe Judges of the Sudder Dewanny
Court, who said that, after deliberate co~isideration, they perfectly agreed in the
opinion pronour~ced by the Principai Suddcr Anieen on the 7th of May, 1839, in
regard to the i~~val id i ty of the Ijaxut Puttur, filed by the Respondent, and of certain
letters filed by Oodey Purtab Syn; but they added, ‘‘ As inquiry into the agnatic
descent of the Appellants in both cases, and the objections made by Chuoturya nun
Murdun Syn, and his marriage in a ltaipoot family, has been neglected by the
Principal Sudder Ameen, we return the decisions of the Principal Sudder Ameen,
dated the 7th of May, 1839, as inco~nple t~ ; and, under cl. 2. sec. 2, of Reg. IX- of 1831,
hereby order that the papers of this case and of case No. 50, of 1840 (the case now
under appeal); with copy of this proceeding, be sent back to the P r i ~ ~ c i p a ~ Sudder
Anieen of Sarun, accompan~ed with a precept with this order, that be restore both
the cases to their [27] former number ; and, as regards this case, he should inquire
whether the rrinrrlage of Chuoturya Run Illurdun Syn, who declares himself to be
the son of Rajah Umur Purtab Syn, and whose mmriage byethe papers appears to
have taken place in the village of BeI Ghat in Zillah Goruckpoor, in the family of
Hindoo Sahee. of the Rajpoot caste, had a c ~ u a l ~ y taken place in a Rajpoot family,
and whether he eats and drinks with them or not, and whether the marriage of
Rajah Uinur Purtab Sgn with ~ u t c l ~ ~ ~ ~ e e Dya Dabee, the mother of ~ u o t u r ~ a Run
Murdun Syn, was soleninized accarding to rhe custom and practice of his family o r
not; and after requiring and obta~ning from Sahub ~ u ~ i ~ u ~ a d Syn, father and
guardian of Futeh Rahadoor Syn, the Plaintiff in case No. 50, of 1840, a petition in
regard to his agnatic descent and a genea lo~ica~ table and documentary proofs and
witnesses from both the parties, to try and decide the two cases, as may be most
consistent with justice and equity, as regards the heirship of Chuoturya Run ~ l u r d t ~ n
Syn $0 the estate of his father Rajah Wnmr Furtab Syn, and the relations~ip of the
parties according to the genealogical table given in by both.”
Under t h i s Order, the Respondent, on the 5th of November, 1842, filed a supple-
mental petition, wherein he abando~cd all claim on behalf of his infant son, under
the Ijazut Put,tur previously set up by him, and for the first time claimed in his own
right to be entitled to succeed as heir to the ~ a j d o ~ and estates, by reason of an
agnatic descent in the seventh degree alleged by him from one Rajah PtIrtab Syn,
whom he alleged to have been the common a n c e s ~ ~ r of himself and the late Rajah
Umur Purtab Syn j and that petition, among other statements, averred, [28] that the
P r ~ n c i p a ~ Sudder Arxeen had stated that the mother of the ~ p p e l ~ a n t was not of
equal caste with the late Rajah Urnur Purtzhb Syn. and that the Ranee Umur Raj
Lutchmee Dabee had presented a petition on the 19th of ~ e b r u a r ~ , 1836, in which
she had stated that the Appellant was ~ l l e ~ i t ~ m ~ t e .
The whole question as to the right of succession to the Rajdom and estates having
been remitted by the Order of the 23rd of May, 7842, to the Zillah Court at Sarun,
various other claimants came forward, including Oodey Furtab Syn, and the sur-
viving widows of Rajah Tel Purtab Syn, and the Government, claiming by escheat;
but ~ n a s ~ u ~ h as none of these clain~ants, except the Appe~~ant , appealed from the
decree of the Sudder Dewanny Adawlut, ultimately pronounced on the 9th of Sep-
tember, 1846, it i s unnecessary to refer more particularly to any of such cIaims.
On the 17th of July, 1844, the Vakeel of the Appel€aat stated in answer to a
question from the Court, that Reet Ram was the m a t ~ r n ~ i g r a ~ d f ~ t h e r of the AppeE
lant ; and that he (Beet Ram) resided in the mountains of Bhurkut, in NepauI ; and
at a subsequen~ sitting of the same Court on the 3rd of August, 1844, the appellant'^
Vakeel corrected a statement made by the Vakeel of the Reefiondent, to the effect
that ~ o n ~ r ~ o t e e Dab e was the first wife of the late Rajah Umur Purtab Syn ; and
220
v. SAHUB PURHULAD SYN [1857] VII MOORE IND. APP., as
stated, that the name of the late Rajah Umur Purtab Syn’s first wife was Ranee
1,utchmea Dya Dabeo, the mother of the Appellant. The Appellant and the Respon-
dent, and the other claimants for the right of succession, produced various depositioIls
and documentary evidence in proof of Lheir respective claims, before the Principal
[29] Sudder Ameen, to establish that the late Rajah Umur Purtab Syn was married
acrording t o the custom of his family to Ranee Lutchmee Dya Dabee; that he was a
Rajpoot ; that the Rajdom was duly conferred upon the Appellant by his father, the
late Rajah Umur Purtab Syn, by the ceremony of investing him with the sacerdotal
cord, and by placing him on the Guddee; and that the title of “ Chuoturya ” was
accorded to him by the late Raja Umur Purtab Syn; that such title was, in con-
formity with the custom of the family, only assumed by the heir apparent to the
Rajdom, and had been assumed by the late Rajah Umur Purtab Syn in the lifetime of
his half-brother, the late Rajah Tej Purtab Syn ; that the Appellant was in the habit
of eating and drinking, both with the late Rajah Umur Purtab Syn, and his half-
brother, the late Rajah Tej Purtab Syn; that he duly performed the funeral rites of
the late Rajah Umur Purtab Syn; that he was married to the daughter of Hindoo
Sahee, a Rajpoot; and that the Appellant was in the habit of eating and drinking
with Hindoo Sahee. The Appellant examined no witnesses to establish the marriage,
but he gave evidence to show that the Rajdom and estates were neither founded nor
acquired by Purtab Syn, whom the Respondent alleged to have been the common
ancestor of himself and the late Rajah Umur Purtab Syn, the Rajdom having been
founded by Doorg Bijey Syn, the grandson of the alleged common ancestor, and the
estates having been acquired by Run Dutt Syn, the son of Doorg Bijey Syn. He also
gave evidence to show that in the year 1829, five years before the death of the late
Rajah Umur Purtab Syn, an estate had been purchased by him in the name of and
for the Appellant, [30] as his acknowledged son; and that such relationship was
substantiated by the fact of the Appellant being described as the son of the late Rajah
in the receipt and bill of sale of the estate, as well as by the corroborative testimony
of the witnesses before alluded to. In addition to the above evidence, and with the
T-ieiT of refuting an imputation made in the course of the proceedings, that the
Appellant’s mother was not of equal caste with the late Hajah Uinur Purtah Syii,
the Appellant filed a genealogical table of his maternal ancestors, whereby it a p
peared that his mother, Ranee Lutchmee Dya Dabee, was the daughter of Haboo
Urut Ram, who was the son of Rajah Anunt Khan, who was the son of Raja Moon
Muhdur Khan, who was the Rajah of Bhurket. The Appellant, moreover, contended
that, even assuming his father and mother not to have been married, or that he was
unable to adduce sufficient evidence of their marriage, yet, that as the late Rajah
was a Rajpoot and a Soodra, the Appellant, as his son, was capable of inheriting the
Rajdoni and estates, and was entitled, in default of a legitimate son, to succeed
thereto in preference to all collateral relatives whomsoever.
Witnesses were also examined by the Respondent to show his agnatic descent
from a common ancestor of the late Rajah Umur Purtub Syn. The Respondent also
entered into evidence to prove that the Appellant’s mother was not the wife, but the
concubine, of the late Raja Umur Purtab Syn; and in support of such allegation,
he relied upon a proceeding before a magistrate on the 3rd of March, 1836, in which
the Appellant’s mother was described as “ Bhutranee,” or a concubine.
On the 21st of September, 1844, the Principal [31] Sudder Arneerl deemed it
necessary previous to entering on the merits of the several claims, t o call for a
Bywasta of the Pundit of the Patna Court upon certain questions respecting the
title of the Claimants to succeed to the Rajdom. The Appellant remonstrated, by
petition dated the 23rd of September, 1844, against such a course of proceeding, on
the ground that a Bywasta had been already obtained at the instance of Mr. Reid,
one of the Judges of the Sudder Dewanny Court, upon the main point, and that the
Respondent and Sree Kanta Dabee were both very largely indebted to influential
merchants at Patna, by whom in all probability the Pundit there would be biassed.
The Principal Sudder Ameen, however, called for the Bywasta cf the Pundit of the
Patna Court. T‘he question submitted to that Pundit stated that the Appellant’s
mother was of a different caste from that of the deceased Rajah Umur Purtab sYll.
The Bywasta of the Patna Pundit was to the effect, that the Appellant was entitled to
maintenance only.
221
On the 27th of February, 1845, the Principal Sudder Anien of Sarun delivered
his ~ u d g ~ ~ i e n t , rejecting the Appe~lant~s claim to the inheritance, and affirming the
title of the Rmpondent as heir to the deceased ltajah Uniur Purtab Syn, and finding
the A p ~ ~ e ~ l a n t exititled to Es. 6000 per ~ ~ n n u m for his maintenance, and he ordered
that each party should bear his own costs of the suit. In coming to these conclusions,
the ~ r i n c ~ p a l Sudder Ameen grounded himself pr inc~pa11~ upon the Bywasta ob-
tained from the Pundit of the Patna Court, and upon the assumption that the decree
of the Sudder Court, dated the 23rd of May, 1842, was limited only to an inquiry
whether the mother of the Appellant was married, and that he [32] was precluded
thereby from entering into the question of the Appellant’s right to succeed as
heir, even if not burn in wedlock.
lfhe Appel~ant appeaIed from. this decision to the Sudder Dewanny Adawfut a t
~a l cu t t a , which Court, on the 9th of ~ p t e m b e r , 1846, affirmed the decision of the
Ziliah Court, with the exception of that portion which gave the Appe~~an t main-
tenance out of the deceased Rajah’s estate, which waE reversed and d i s a l ~ o ~ e d , and
also the costs of the ~espondexit in the Zillah Court, which the Appe~lant was ordered
to pay; and the Court dismissed the appeal with costs, holding that it was not open
to the Appellant, after the p~eadings and proceed~ngE in the original suit, and the
Order of the 2Srd of Xay, 1842, to claini the succession as heir, without establish in^
the marriage of his parents, and that he had failed to establish the fact of such
inarr iage.
*
The present appeal was from this decree.
Mr. R. Palrner, Q.C., and Mr. Macnaghten, for the ~ p p e ~ ~ ~ n t . - T ~ ~ e evidence
adduced esta~lished that the Appellant was the legitimate son and heir of the late
Bajali Umur Purtab Syn ; and as such he was entitled to inherit the RPtjdom and
~ ~ ~ ~ i i i i d a ~ y in dispute. Even if the evidence of the f @ c & m of the marriage be not
as conclusive as it might have been, yet the fact of the r e c o ~ i t i o ~ f the Appe~lPtnt’s
legit imac~ by h i s father, Rajah Umur Purtab Syn, i s clear from the title he gave him
of ‘‘ Chuoturya; ” a title which, according to the custom of the family, can only be
assumed by the heir apparent. The fact that the ~ p p e l ~ a n t was so desi~nated is not
disputed. Again, the evidence 1331 of the witnesses as to the treatment o f the
Appellant by his father, the u n ~ f o r ~ &Yeetion shown him, his living and eating i a
common, his investiture with the sacerdotal cord, and his marriage into a Rajpoot
family, all establish his a c k n o ~ l e d g e ~ ~ e ~ ~ t i ~ ~ ~ a c ~ . No credit can be given to the
Respondent’s witnesses that no marriage took place. They are the very witnesses
who spoke to the fabricated Ijaaut I’uttur, The decree appealed from cannot be
supported. It is founded in a great measure on evidence taken in suits between
other parties, and not bet.ween the Appellant and Respondent. We conceive that
by the presentation of the petition in November, 1842, by the ~ s p o n d e n t , an
entirely new litigation was c o i ~ ~ e n c e d , and a fresh issue joined between the AppeE
lant and Respo~dent, and that for the purposes of his defence against the Respon-
den& claim, the Appellant was not limited to the precise manner in which his
defence had been stated upon the pleadings in the original suits, ~ u p p o s ~ ~ g ~
however, that it should be held that it was competent for the Respondeats~ after the
Order of the Sudder Dewanny Court, of the 23rd of May, 1842, to assert his own title
as heir of the late Rajah Umur Furtab Syn, and as such to claim the Rajdom and
Zemindary against the Appellant. then we insist, that the suit must Prom that time be
considered as having been c o ~ ~ t i t u t ~ d between new parties without written plead-
ings, and the Appellant ought not, as betweciz himself and the Respondent, to be
limited by pleadings in a suit between himself and the Respondent’s infant son, or
by the form of any proceedings which had been taken, or orders which had been
made, in that or any other suit before the final and sub-~3~]-stantia~ issue was joined
between himself and the Respondent. Indeed, the decree of the Sudder Dewanny
Court proceeded upon an assumption altogether erroneous ; namely, that the only
question a t issue in the case, so fa r as the Appellant was conceriied, rested upon the
legitimacy of birth and not upon the title of the Appel~ant ~enera l ly as heir, and
the Courts have not taken that point into consideration. The cause, therefore,
ought to be remitted to the Court below with special directioiis 011 this point.
Another objection to the decrees of the Ziflah and Sudder Dewanny Courts is, that
those decisions were founded upon an opinion of the Pundit of the Patna Court, 011
322
I
‘U. SAHEB ~~~~~~~~ YYN [185?] VI1 MOORE IND. APP., 36
an assumed state of facts neither admitted nor proved ; namely, that the Appellmt’s
mother was a Soodra, and a different class from that of the late Rajah Umur Purtab
Syn. This opinion Tvas, however, contrary to the Hindoo Iaw, for even i f she was a
Smdra, and he of the regenerate class, such mar r~age is good, and the issue
legitimate.
As~uming, however, the Appe~lant to have failed in s u b ~ t a n t i a t i n ~ by evidence
the marriage between the late Rajah and his mother, or his own legitiniacy, the
fact of his being the only son, though illegitimate, of the late Rajah, is sufficient by
the Eindoo law to entitle him to succeed to the whole of the deceased father’s estate.
That was the opinion of the Pundit consulted by the Sudder Court in this case. His
pat~rK~ity is not in dispute. Rajah ZTniar Purtab Syn was a Rajpoot, and must be
considered as one of the Soodra caste. There are now
only ~ r a ~ ~ ~ ~ i I ~ s and Soodras, the two ~ntermediate regenerate classes having lost
caste, and become [SJ merged into the Soodra class. Ward‘s “ Account of the
Hindoos,’” vol. i. pp. 66, 91. Tod’s ‘‘ Annals and Antiquities of Rajast’han,” vol. i.
p, 53. ~a1coln~’s ‘‘ lbfernoir of Central India,” vol. ii. p. 125. Steele’s “ S u ~ i i ~ ~ a r y
of the Law and Custom of Hindoo castes,” pp. 95, 96. The i‘ Yishnu Purana,” ch.
vii. and viii., by Wilsou. The “ Ayeen Ahbery,” vol. ii. p. 377. The Appellant,
therefore, as the illegitimate son of a Soodra, was capable of ~ n h e r i t i ~ ~ ~ the Rajdoin
and estates, and was entitled, in defauIt o f any l e g ~ t ~ n ~ a ~ e son, to succeed in pre-
ference to any collateral relatives. The Mitacshara, eh. i. sec. aii. Daya-Uhaga, ch.
ir. sec. 31, p. 151. Strange’s “Hindu Law,” vol. i.
pp. 69, 132, 113 (2nd. edit.). Colebrooke’s Dig., vol. iii. ch. clrriv. ~ a c I l a ~ ~ ~ t e ~ i ’ s
“ Principles of Bindu Law: vol. i. p. 15. ~ ~ e ~ ~ ~ u i ~ J ~ ~ , r n v. ~~~~~~~~~~ (S.D. Deck
Had. $0).
In any circumstances the decree of the Sudder Dewanny Court cannot be main-
tained. If the Appellant should be declared not to be entitled to the ~nher~tance, he
i s , as the i l l e g ~ t i ~ a t e son, a t all events, entitled to- n~ai~itenaiice out of his deceased
father’s estate, Macnaghten’s “ Principles of Hindu Law,” vol. ii. p. 119, which the
Sudder Court has w r o ~ ~ ~ f u l l y d i sa I~o~~ed .
Mr. Rolt, Q.C., and Mr. Leith, for the Respondent.-The Ap~~ellant, notwith-
standing that he had every opportun~ty aRorded him, has signallp. failed ia estab-
lishing the marriage and conse~uent~y his legitimacy : and his title, therefore, to
succeed to the ancestral Raj and ~emindary , as the heir-at-law of the E363 late
Rajah Uinur Purtab Syn. I t was satisfactorily proved that he was the i l le~it~n3ate
child of a ltajpoot by a slavegirl, and as such has no right of property. Steele’s
‘ I Summary of the Law and Custom of Windoo castes,” p. 182. Macnaghten’s “ Prin-
ciples of Hindu Law,” vol. ii. p. 15, note. Such a marriage with a Soodra woman
by a Khstri is proh~bited by law. ~ a c n a ~ h t e n ’ s “ Principles of Eindu Law,” vol.
i. p. 59. His as~um~3tion of a title used by the heir apparent in the family, and the
other acts relied upon by him, would, no doubt, be eorroborative evidence entitled
to some weight, if the ~ u c t u ~ of the m ~ r ~ i a g e had been proved. The Appellant failed,
however, to prove such marriage, although the oi~ i ls lay on him t o prove that fact.
Now, the evidence of the ~ e s p o ~ d e n t ’ s witnesses upon the new trial is positive and
uncontradicted, that no marriage between the deceased Rajah and the Appellant’s
mother eirer took place, either at the time or in the manner alleged by the ~ppel lan t .
It was also proved that the R e s ~ o ~ ~ d e n t was the nearest male relative of the late
Rajah, and in that character be was the heir, according to the Nindoo law and
custom, and entitled to succeed to the Raj arid ~ e ~ i n d a r y . The a r g u ~ e n t of
Appellant, that Rajah Vmur Purtab Syn, a Rajpoot, and as such one of the regenerate,
or twice-born classes, was to be considered as a Soodra ; and by that means to let in
the Appella~t o the succession, though i l le~ i t~mate , is contrary to fact and utterly
untenable. The
‘ I Ayeen Akbery,” rol. ii. pp. 377, 481. Inst. of ~ e n u , eh. i. p. 31. The Vishnu
Purana,” ch. vii, and viii., by Wilson. Ward‘s “ Account of the Riindoos? vol. i.
p. 66. [3fl ‘‘ An H i s ~ r i c ~ ~ Sketch of Princes of India,” A3 to the ~ r ~ ~ ~ ~ n ~ of the
right of inheritanoe by an illegitimate son, we submit that, in the absence of any
proof of a custom to that effect, he clearly has no title. 9 iliohun Sing v. c~~~~~
&Sir&g (1 Ben. Sud. Dew. Rep. 28, and note to page 23).
Neither i s the Appellant as an illegitimate SOB entitled to ~ a i ~ ~ n ~ n c e and to
233
The Mitacshara, ch. i. sec. xi. p. 302, note.
All Itajpoots are Soodras.
Inst. of Menu, ch. ix. p, 179.
A. Eajpoot is of the Khatri class, which still exists in its fntegrity.
VI1 MOORE IND. U P , , 38 CHUOTURYA RUN XVIURDUN SYK
have the same made a charge upon the ~ c m i n d a r y in dispute. We submit that as the
Appellant’s mother was a slave-girl, he may, as the son of a regenerate man, be en-
titled to simple x~~ainteKiance, Pershad Simgh v. Eanee Euhesiwe (3 Ben. Sud. Dew.
RepZ132) j ~ a c n a g ~ ~ t e i ~ ’ s ‘* Principles of Hindu Law,” vol. ii. p. 119 ; The Mitacs~ara,
ch. i. sec. xii. ; Colebrooke’s Dig., vol. iii. secs. ccsviii. and ccxix. ; but that only is
allowed during youth, Steele’s “ S u ~ m a r y of the Law and Custom of Birrdoo caste,”
Mr R. Palmer, Q.C., in reply, referred to The Calcutta Review, vol. xv. p. 62, upon
Judgnieiit was reserved, and now delivered by
The Eight €Ion. Sir Edward Ryan (Feb. 25, 1858f.--In June, 1832, Rajah Tej
Purtab Syn died, in undisputed possession of the Raj and Zemindary of Bam-
nuggur, in the ZiIlah of Sarun, the right to which Raj and Zerriindary is the sub-
ject-matter of this appeal. He left surviving him three widows, and an only brother
of the half-bIood, Rajah TJmur Purtab Xyn. A dispute arose between Telotnian
Dabee, his eldest surviving widow, and his brother, as to who E381 should succeed
to the Rajdom and estates ; but this was ultimately coi~promised, and Telotman Dabee
relinquished her claim in Co~isiderat~orJ of certain revenue secured to her for her
life. Rajah Uniur Purtab Syn contiK~ued in possession of the Raj and estates until
his death, which took place in November, 1834. Upon his death, Lutchmee dab^,
his widow, obtained possession of the property, and a Wirasutnamah was filed in her
name oil the 5th of December following, stating that she was in possession, and
claiming for her the Raj and Z e m i ~ ~ d a r ~ , as sole heir to the deceased. After the
usual proclamat~~ns, the Government Collector entered her name in the books of
record as the heir and sole proK~r~etor f the Raj and ~emindary . S~~~sequent ly ,
claims were set up tu the property by Teiotman Dabee ; by Oodey Purtab Syn ; and
by the Appellant ; and also by the Respondent.
Two suits were commenced; on0 in Au~us t , 1835, by Oodey Purtab Syrr, against
the widows of Rajah Tej Purtab Syn, and Lutchmee Dabee, the widow of Rajah Umur
Purtab Syn, in which he claimed as heir from a common ancestor of the deceased
Rajah and himself-one ~ u k o o n d Syn. The plaint in this suit i s xiot set out in
the transcript, nnd it i s not clear whether the Appellant was originally a party, or
became so by a s ~ i ~ p l e ~ ~ i e n t a r y petition ; but in the plaint he i s stated to be the son
of a slave-girl.
The other suit was coninicnced 011 the 5th of May, 1836, by the Respondent
on behalf of his son, F’uteh Bahadoor Sy11, an infant, against the widows of Rajah
Tej Purtab Syn ; Lutchmee Dabee, and Oodey Purtab Syn ; and by an Order of the
Court, dated the 26th of March, 1838, the Appellant was also made a Defen-[39J-
dant. This suit was founded on an fjaxut Puttur, alleged to have been executed by
ltajah Umur Purtab Syn, enpowering Lutchmee Dalsee and his brother’s widows, to
bestow the guddee of the Rajdom on the Respondent’s son.
These suits came on for hearing together before the Principal Sudder Ameen at
Sarun, on the 7th of May, 1839, and were dismissed with costs. The grounds on
which the first suit was dismissed are stated in these words, that a l t ~ ~ o u g ~ Chuo-
turya Run ~ u ~ , d u r I Syn was the son of lfniur Purtab Syn, yet whether he, not being
born of a woman of equal caste, was entitIed to the Rajdom during the life of
Ranee Urriur Raj Lutchmee Dabee, was a questio~~, the investi~ation of which did riot
become ncccssary in this case, because there existed no dispute or disagreement
between Ranee Uniur Raj Lutchmee Dabee and Run Murdun Syn ; but, whether Run
Murdun Syn was entitled to the Rajdorn, or not, while Umur Raj Lutchmee Babes
lived; P l ~ i ~ ~ t i ~ had no right to the Rttjdoni whatever on the score of relationsh~p,
the Zenindarp being a separate one aftogether.” In the suit of the Respondent it
>vas heId that, as the claim rested solely on the Ijazut Puttur, which was found not to
be genuine instrument, it was not necessary to go into the matter of relationship.
Fronz these decisions, Oodey Purtab Syn and the present Respondent, on behalf
of his infant son, appealed to the Sudder ~ e w a n n y Adawlut, on the 24th of $U$,
1840. After the appeal, and before any further proceedings Ranee Umur Lutchniee
Dabee died; upon which the present A p ~ e ~ l a n t and the Respondent, as father and
guardian of Futeh Bahadoor, piwented to the Sudder Court separate pe-[~oJ-tit~ons,
2%
p. 181.
the question of the caste of a Rajpoot.
o. SAHWB ~ ~ R ~ ~ L A ~ SYX [1857] VEX MOORJE; x i m APP., p1
i n which they set forth their respective claims to be considered as heirs to the deceased
Ranee. %Er. Reid, the Judge before whom these petitions Game, directed the Prin-
cipal Sudder dnieen of the Zillah of Sarun to receive proof of their claims as heirs
to the deceased. In the meantime, the estate was attached by the Collector under
order of the Judge, and placed under a m a n a ~ e r , and a proclamat~on issued for the
attcx~dance of heirs. Oodey Purtab Syn, the Respondent, in his ch~rac ter of father
and guardian; the surviving widow of Rajah Tej Purtab Syn; and the A p p ~ ~ ~ ~ ~ ~ i ~ ,
attended to prove their respective claims. 0 x 1 the 7th of November, 1840, the paper8
relating to praof of succession mere brought before Mr. Reid, and in an order made
by him of that date, he states that as from the decision of the 7th of May, 1839, it
appears that Run Murdun Syn i s the son of Rajah t h u r Purtab Syn, but by a
~~“oman of unequal rank, it has, therefore, become ~ n ~ p e r a t i ~ e on him, Before going
into the merits of the case, to require a Byw~sta (law opinion) front the Pundit of
the Court, on the paint, whether among ~ i n d o o s a son by a woman of unequal rank,
while lineal relations are fort~tco~ning, will be entitled to inherit the estate of his
deceamd fat>lter, and the Pundit is a c c o r d ~ 1 ~ ~ 1 ~ ordered to gire his opinion on the
point. In J a n ~ ~ a r y , 1841, the Bywasta of the Pundit i s filed : it states, “ that aniong
Hindoos of the Rajpoot caste, a son who is not X>orn from a woman of equal rank and
caste can be reckoned as son, and will be entitled to the estate of his deceased father,
a near relative of lineal descent living ~o t~v i ths t and~ng , because a B a ~ ~ o o t i s of the
Soodra caste, and a son born to an i n d ~ v ~ d u a l of a Soodra caste, even from the womb
of a E&] slave, etc., is reckoned his son by the Shaster laws, and is entitled to
succeed to his father’s estate, a near relation of lineal descent living notwithstand-
ing ”; and he also states that if there be no l e ~ ~ t i m a t e offspring, that i s to say, no
issue from a ~ a ~ r i e d \vonian, in such a case the ~ ~ l e ~ i t ~ m a t e son of an u n x ~ ~ ~ r ~ e d
Soodra woman will be entitled to the whole of his father’s estate.
This Bywasta was brought before Mr, Reid on the 5th of ~ ‘ e b r u a ~ ~ following,
and he then proceeded with the further hearing of the cause, and he was of o ~ i ~ i i o i t
that, a ~ t ~ ~ o u g ~ ~ this ~ y ~ a s t a of he Pundit was in favour of Bun Murdun Syn, yet
that consider~ng the claims of tshe parties, it was inexpedient to dispose of the case
s ~ m m a r ~ I y without going into its full merits, and he ordered that both cases should
be tried together, and that all the objecting parties and claimants should be a t
liberty to corm forward, and that the name of the party whose claim should be foulid
good, should be entered in lieu of the name of the ~ e ~ e a s e d widow.
On the 231-4 of May, 1842, the proceeding^ taken before Mr. Reid, and all the
other papers in these suits, were, by an Order of the Court, brought before a full
Bench, and the Judges, consistinv of Mr. Lee Warner and Mr. James Shaw, recorded
their opinion in these terms We perfectly agree in the opinion pronounced
by the ~ r ~ n c i ~ a l Sudder Ameen in regard to the vaIidity of the Ijazut
Puttur. But as inquiry into the agnatic descent of the A p p e I ~ ~ ~ t ~ s in both cases, arid
the objections made by ~ u o t u r y a Run ~ u r d u n Syn, and his marriage in a Rajpoot
f a i ~ ~ ~ l ~ ~ , has been neg~ected by the Principal Sudder Ameen, we r e t u ~ n the d e c ~ s i ~ n s
of the Principal Sudder Ameen, E421 dated 7th of May, 1839, as incompIete; arid,
under cl. 2, sec. 2, of Reg. IX. of 1831, hereby order that the papers of this case and
of case No, 50, of 1840, with a copy of this proceeding, be sent back to the PrincipaI
Sudder Ameen of Sarun, accompanied with a precept with this order : that he restore
both the cases to their former n u ~ b e r ; and, as r ega~ds this case, he shou~d ~ n q u ~ r e
whether the marriage of ~ u o t u r y a Run Murdun Syn, who declares hiinself to be the
son of Umur Purtab Syn, and wbose marriage, by the papers, appears to have
taken place in the village of Be1 Ghat, in Zillah G~~omkhpoor, and in the family
of Hindoo Sahee, of the Rajpoot caste, had actually taken place in a
Rajpoot family, and whether he eats and drinks with them or not; and
whether the ~ ~ a r r ~ a ~ e of Rajah Umur Purtab Syn with ~ ~ t c h m ~ D a b e e ,the
mother cEf ~ ~ ~ o t u ~ r a Run ~ u ~ d ~ n Syn, WBS ~ o ~ e m n i ~ ~ ~ accord in^ l o ttlo custom
and practice of the family or not; and after r e q u i r i ? ~ ~ and obtaining from Sahub
Purhulad Syn, father and ~ u a r d i ~ n of Futeh Bahsdoor Syn, the ~ l a i n t i ~ in case
No, 50 of 1840, B petition in regard to his agnatic degcent, and a ge~ealogica1 t abh
and documentary proofs and wi~,nesse~ from both parties, to try and decide the two
cases as may be most consistent with justice and equity, as regards the h e ~ r s h ~ p of
Run Murdun Syn to the estate of his father, Raiah Umur Purtab Syn, and the
reIationshi~s of the parties a c c o r d ~ n ~ to the genea~ogical tables given in by both.”
P.C. ~ m . 225 8
VI1 MOORE IND. APP., C H U O T U ~ ~ A RUN ~ U R ~ U ~ SYN
In November, 1842, the Respondent filed a supplementary petition, setting forth
his genealogy, and claiming in his own right as the next male heir of Rajah Umur
Purtab Syn.
In February, 1845, the Principal Sudder Arneen gave [43] judgment on the re-
trial of these causes, and held the Respondent to be the nearest next of kin to the
deceased Rajah Umur Purtab Syn; that Oodey Purtab Syn being only remotely
related, had not established his claim ; that the marriage of Rajah Umur Purtab
Syn with Lutchmee Dya Dabee was not proved ; that the Appellant, as the illegitimate
son of Rajah TJmur Purtab Syn, was entitled to maintenance.
Against, this decision, Chuoturya Run Murdun Syn, in April, 1845, appealed ;
and on the 9th of April, 1846, the Sudder Dewanay Court dismissed the appeal,
a ~ r m i n ~ the decree of the Zillah Court in all respects, except as to the allowance of
Inaintenance to Chuoturya Run Murdun Syn ; which part of the decree was reversed.
From the decree of the Sudder Dewanny Court the present appeal come8 before
their Lordships, and the Appellant objects to that decree.
First. Because he claims to be entitled to the Raj and Zemindary, as the legiti-
mate son of the late Rajah Umur Purtab Syn.
Secondly. Because, if the alleged marriage and legitimacy be not established, he
cfainis to be entitled to the inheritance as the illegitimate son of the Rajah.
Thirdly. That i f not entitled to the inheritance he is, as the illegitimate sea,
entitled to m a i n t e n ~ n c ~ out of the estate, which the Court has d~sa~lowed.
In 1838, the Appellant endeavoured to establish by evidence, on the first question,
that the late Rajah Umur Purtab Syn was married, according to the custom of the
family, to Lutchmee Dya Dabee, and the Respondent endeavoured, by evidence, to
show that the Appellant was the illegitimate son of a slave-girl ; but it is alleged on
behalf of the Appellant that [44] to this evidence of the Respondent little credit
should be given, because the witnesses also at~exnpted to prove the genuineness of the
Ijazut Puttur, whieh proved to be forged and fabricated. Upon the re-trial of these
cases before the Principal Sudder k e e n in 1845 no fresh witnesses were called by
the Appellant to establish the marriage, although special directions were given as to
the issues on this point; but many witnesses were called by the R~spondent o show
that no such marriage took place. The Counsel for the Appellant have abstained
from entering into a review of the evidence given by the witnesses, on the factum
of marriage; but have contended that the legitimacy of the sw is recognized by
the conduct of the father ; by the title given him of Chuoturya "---a title assumed,
according to the custom of the family, by the heir apparent-aiid which it is ad-
mitted by the Respondent he was called; by his living and eating with the father;
by the investiture of the sacerdotal cord ; by what is urged to be a still more im-
portant mark of his condition, the admitted fact of his marriage into a Rajpoot
family; and by the great kindness and affection with which he was treated by the
late Rajah. No doubt exridence of thi8 descr~ption is entitled to weight as con-
firmatory of testimony in support of the faa.e2u;m of the marriage: bu t it is not
sufficient to outweigh the positive testimony of a great number of witnesses called
on the rs-trial, many of whom are native gentlemen of rank, some of them Rajahs
in the immediate ne ighbourh~d, and all of whom speak to the ille~itiii~acy of the
Appellant from their knowledge of the family, and from the marriage nerer linving
taken place at the time and in the manner alleged by the Appellant. Their evidence,
it [45] must be recollected, was given before a native Judge understanding the
language, usages, and customs of the people; nor is it easy, consistently, to explain
why, upon this issue, the affirmative of which the Appellant was bound to prove, no
further oral evidence was produced on his behalf. Their Lordships, therefore, are
of opinion, that no satisfactory grounds have been'alleged for disturbing the finding
of tlie Court below on this matter of fact, confirmed by the judgment of the Sudder
Dewanny Court, and are of opinion, that the Appellant has failed to establish the
alleged marriage of his father with Lutahmee Dya Dabee, and that cons~uen t ly
his claim as the legitimate son of the late Rajah cannot be sustained.
Then arises the second quwtion, whether the Appellant is entitled to the inheri-
tance as the illegitimate son of the late Rajah?
There is no dispute as to the paternity of the Appellant, and the p~incipal matter
326
v. SAHUB ~ ~ ~ H u L ~ ~ SUN [ f 8 571 VII ORE INR. UP., M
for inquiry is the Hindoo law of inheritance, with regard to the right of succession
of i l l e g ~ t i ~ ~ a t e children.
This law, it appears, varies according to the different classes of the Windoos,
and it+ i s necessary, therefore, in the first instance, to consider what those classes are,
and where they are to be found. It i s undoubted that there were o r i ~ i n a l ~ y four
classes : First, the Brahmins ; second, the Khatris ; third, the ~ a i s y a s ; fourth, the
Soodras ; the first three were the regenerate or twice-born classes, the latter the ser-
vile class. It was contended on the part of the Appellant, that the Khatri and
Vaisyas classes have ceased to exist, and were sunk into the Soodra class, and that
there are now two classes only, namely, the Brahmin and the Soodra. The Appel-
lant, in order to show that the [&I proper genuine Khatri are extinct, cites as
&uthorit~es in support of this position, The “ Ayeen Akbery, or, t~he Institutes of the
Emperor Akber,’” vol. ii. p. 317, in which there is this passage : “ At present there
are scarcely any true Kehterees to be found, excepting a few who do not follow &e
profession of arms.”----“ Those among them, who are soldiers, are called Rajpoots.”
Tod’s l1 Annals and Antiquities of ~ajast’han,” vol. i. p. 53, where it is said, “ Of
the fifth dynasty of eight princes ” ‘‘ four were of pure blood, when Kistra, bp a
Soodra woman, succeeded.” Ward’s “ Account of the Hindoos,”’ vol. i. p. 66 (edit.
l815). Sec. 2, which treats of the Kshutryas caste, has this ~assa~e: -“Some
a%rm, that there are now no Kshutryas in the Kulee yogu, that only two castes
exist, Brahmins and Sudras and that the second and third orders having sunk in
the fourth.” Steele, ‘( Summary of the Law and Customs of Hindoo castes,” p. 95,
says, ‘( The ~ r a h m u n s assert that Purseram destroyed the whole of the Kshutriyus;”
and a t p. 96 : “ The Rajpoots, M a r a t ~ ~ a chiefs of the Sattara or Bhoxrslc, and Kola-
poor f a ~ i l i e s , etc., and other houses, lay claim to the title of Kshutriy, and wear the
Jenwa. But they are considered Soodrus by the Brahmuns; ” and there is an
opinion to the like effect expressed by Mr. Sterling, in a paper on Orissa Proper, in
vol. v. of the “Asiatic Researches,” p. 195: I‘ The proper genuine Khatris are, I be-
lieve, considered to be extinct, and those who represent them are, bp the learned, held
only to be Sudras.”
that ever weight may be dne to these a ~ t h o r i t ~ e s in support of a s ~ e c ~ l a t i ~ r e
opinion, en te~ained , perhaps, by learned Brahmins and others, their Lordships
have, nevert~e~ess, no doubt that the existence of the Khatri class, as one of the re-
generate tribes, is [41] fully recognized throu~hout India, and also that Rajpoots
in Central India, and in this District, are cons~dered to be of that clam. No doubt,
as far as we are aware, has ever been raised in the Courts in India a8 to the existence
of the Khatri class as one of the regenerate tribes. The Courts in all cases assume
that the four great classes remain. Thus Sir W. ~ a c n a g ~ t e n , i his marginal note
to Per.shad. ’ S ~ ~ ~ ~ v. Rawe ~ ~ ~ ~ s r ~ e (3 Sud. Dew. Rep. 1312), says, ‘ l A c c o r d i i ~ ~ to the
Rindoo law, an i l i e ~ i t ~ ~ a t e son of a Rajpoot or any of the three superior tribes, by
a woman of the Sudra or other inferior class, is entitled to i~aintenance only.’’ In the
stateme~it of the case? he takes it as an admitted fact that a Rajpoot i s one of the
three superior tribes; aIthough it i s true, as has been observed, that the point ulti-
mately decided in this case, was only that the paternity was not established. In the
second voIume of Macnaghtgn’s “ P r ~ n c i ~ ~ e ~ of Rindu Law,” p. 119, the ~ n a r g ~ ~ i a ~
note is, l‘ The i l l e ~ i t i ~ a t e son of a person belonging to one of the regenerate tribes
f in this case a ~ a j p o o t ~ ia entitled to mai~tenance only.” Accurate ~nformation as
to the d ~ s t ~ n c t ~ o n of classes, especialIy in this part of India, is to be found in the
stat~stica1 survey of Dr, Francis ~uchanan , conduc~ed under the direction of the
Government of India. The second volume of M. Martin’s “ Ind ia” contains Dr,
Buchanan’s report on the district of Goruckpoor, and at p. 456 he says, ‘‘ The Raj-
poots are here, everywhere and by all ranks, a d ~ ~ i t t e d to be Khatris, ?lthou~h they
claim all manner of descents, except from. the persons who, according to the Vedas,
sprang from the arms of Brahma.” Other passages in the same report have bem
referred to by Mr. Leith to the same effect. 14431 The Rajpoots are ~ i e n t ~ o n e d in
~ l p h i n s t ~ n e ’ s (‘ History of India,” vol. i. p. 607, as the military class in the original
Hindoo system; so also in ~ u n n i n ~ h a m ’ s ‘‘ EIistorr of the Sikhs,” p. 202. Thorn-
ton, in his “ ~a~et tecr ,” ’ tit. ‘‘ ~ a ~ p o o t a n a , ” says, “ The widely-spread sect of Rajpoots
are considered offsets of the Kshetr~yas, one of the f o w great castes into which the
Hindoos were o r i ~ i n a l l ~ ~ divided.” Sir John Malcolm, in his “ ~ e m o i r of Central
227
India,” vol. ii. p. 125, enters fully into the state and condition of the Rajpoot tribes.
They are treated of throughout his history as belonging to the superior class ; he
mentions that although their intercourse with females of a lower tribe may have, in
some instances, produced a mixed race, yet even in this cIass, which he terms the
bastard Rajpoot tribes, the lowest of them who aspire to Rajpoot descent, consider
themselves far above the Soodras,
I n the report of Dr. Buchanan, mention is made of the existence of this mixed
race in the District of Goruckpoor, and that there are several persons of the moun-
tain tribe, called Khatris, who are a spurious race, but who claim all the dignities of
the military order. One of the witnesses in this case, the Rajah of Gopalpore, a
Khatri Kossuck, states that his family do not intermarry with the mountain Rajahs.
It seem to us, therefore, not onIy that the Khatri class must be considered as sub-
sisting, but that according to the Nindoo law generally preva~iing in this part of
India, and independently of exceptions arising out of any well established usage
or c u s t o ~ ~ to the co~ t ra ry , as to particu~ar places or f a ~ i l ~ e s , Rajpoots are to be
considered as of the Khatri class.
From these preniises it seems to us to follow, that [49] (it being ind~sputable thatr
Rajah TTrnur Purtab Syn was a Rajpoot) the true question to be decided in this case
as to the Nindoo law of inheritance is-not whether the illegitimate son of a Soodra
man by a Soodra woman can inherit but-whet~er the ~ l l e g i t i ~ a t e son of a Khatri
can in any event inherit, whether his mother be a Soodra or of any other caste.
The law relating to the right of succession of illegitimate children, is thus stated
in the first volume of Sir W. Macnaghten’s “ Hindu Law,” p. 18 :-“ Among the
sons of the Sudra tribe, an illegitimate son by a slave-girl takes with his legitimate
brothers a l i a~ f - s~~are ; and where there are no sons {includiIig won’s sons and grand-
sons), but only the son of a daughter, he is considered as a eo-heir, and takes an equal
share.” In the second volunie of the same work, in a note, p. 15, he states : ‘‘ Accord-
ing to the Hindoo law, the illegitimate son of a Sudra man by a female slave, or a
female slave of his slave, may inherit, but not the illegitimat~ child of any of the
three superior classes j ” and he adds, ’ I If the woiitan were not his fernale slave, the
son begotten on her by him would have no right to the inheritance, but only a claim
to mainte~ance.” As an authority in support of the passage in his test, Sir W.
~ a c n a ~ h t e n refers to Colebrooke’s translation of the Hitacshara, on Inheritance ;
which, as is well known, is the standard author~ty on this subject in all the schools
of Hindoo law, from Benares to the southern extremity of the Peninsula of India.
In chapter 1, section 12, of that work, on “ The right of a son by a female slave, in
the case of a Sudra’s estate,” it i s thus stated : “ The author next delivers a special rule
concerning the partition of a Sudra’s goods. ‘ Even R son begotten by a Sudra
[503 on a female slave, may take a share by the father’s choice. Hut if the father
be dead, the brethren should make hiin partaker of the moiety of a share; and one,
who has no brothers, may inherit the whole property, in default of a daughter’s sons.’
In clause 3, it i s stated, that the rule does iiot apply to the three superior regenerate
classes. ‘From the mention of [a Sudra in this place it follows that] the son be-
gotten by a man of a regenerate tribe, on a female slave, does not obtain a share even
by the father’s choice, nor the whole estate after his demise. But if he be docile, he
receives a simple ~ a i n t e n a ~ c e . ’ ”
In another treatise on the Eindoo law of inheritance, also translated bs Cole-
brooke, and which is the great author it^ in Bengal, The “ Daya Bhaga of .~imutava-
hana,” p. 151, the same doctrine is to be found. Also in the ‘‘ Treatises on Adop-
tion,” translated by Mr. Sutherland, The Dattaka Mimansa, sec, ii. cf. 26, p. 32, and
The Dattaka Chandrika, sec. v. cl. 30, p. 205 : the third volume of Colebrooke’s DiR,
C ~ T Y ~ V . p. 143. Strange’s “ Hindu Law,” pp. 69-132 of vol. i. ; and p. 68 of vol. 11.
A decision on the right, among Soodras, of ~ l i e~ i t ima te children to iuherit, is re-
ported in Sir Thomas Strange’s Notes of Cases a t Hadras, ~ ~ n ~ f f ~ f f ~ a ~ ~ ~ v. iVen4nta
~ z 6 ~ c ~ ~ 7 ~ e e ~~~~ ~~ (vol. ii. p. 305). In his judgment he says, illegitimate children
of Soodras inherit ; but in the case of i l ~ e g i t ~ n i a t ~ children begotten by a rc~enerate
man, the law is different ; they are entitled to maintenance only.
I t seems, therefore, to be establ~shed by an unusual conGurrence of a ~ i t ~ ~ o r i t ~ ,
that according to the lam prevalent where this property is situated, the i ~ l e ~ i t i m a ~
son of one of the three regenerate or twice-barn [tjl] races cannot succeed to the in-
228
W. SAHUR PURHULAD SYN [ 185 71 W i I XOOBE IND. APP., 61
heritance of his father. We think, therefore, that the Appel~ant,s case fails on the
second point no less than on the first.
In the course of the argument on this point, great reliance was placed, on the
part of the Appellant, on the Bywasta of the Pundrt of the Sudder Dewannp Court,
but their Lordships are not disposed to attach mueh weight to this opinion, as it
proceeds on the ground that ~ ~ a j p o o t s are Soodras, and their ~ ~ o r d s ~ ~ i ~ s are fully
satisfied that this ground is wholly without foundation.
It was contended, however, on the part of the Appellant, that as this case has been
presented to us, we ought not now to come to any conclusion affecting the Appellant’s
rights, hut ought to remit the case to India, for the determination of those rights.
I t was urged that there has been a miscarriage in the Courts below ; that both the
Zillah and the Sudder Courts have proceeded on an erroneous assumption that the
only question at issue, as regards the Appellant, was legitimacy of birth, and not the
title of the Appellant generally as heir, and that the Courts have not considcred or
a ~ j u ~ i G a t e ~ upon either the law or the facts as respects the Appellant’s right to suc-
ceed indepen~eK~tly of the alleged marriage or of his own legitimacy.
It is true that the pleadings in this case are unusuall~r-even for cases from the
~ o f u s ~ i l Courts-~oose and imperfect, and no distinfit issues have been framed be-
tween the parties under the Regulations for that purpose: indeed, to the original
suits of 1835 and 1836, the A p p e ~ ~ a n t appears to have become a party onIy by an
Order made after their commence~ent ; and tliough we are disposed to think that
the [62] Appellant’s claims were distinctly before the Zillah Court in 1839, yet it
must be admitted that neither the Principal Sudder Ameen nor the Judges of the
Sudder Dewanny Court appear to have thought it necessary to ad judica t~
upon them. Still, however, the question for decision is one of Hindoo law, involving,
in no ii~co~siderable d gree, what is matter of history, and we do not think that i t
would be right for us to send back the case for the purpose of the Courts in India
considering such a question; we are the less inclined, too, to adopt such a course
because the p a r t ~ c ~ l a r inqujries directed by the Sudder Court’s Order of 1839, as
to the marriage of the Appellant’s father and mother, and as to his own marriage,
appear to us to have inoolved every element on which the Appel~ant’s right to in-
herit could depend, and the ~ p p e ~ l a ~ ~ t , therefore, had every oppor t~~ni ty of adducing
evidence to establish his claim.
The only remaining question is the reversal by the Sudder Dewanny Court of
that part of the judgment of the Zillah Court which direeted that an annual sum of
Rs. 6000, should be set aside out of the estate, given by the decree to the Respondent,
for the maintenance of the Appellant. The grounds upon which the Sudder Dewanny
Court reversed this part of the judgment do not appear on these proceedings. The
right of an ~ l l e ~ i t i n ~ a t e child of one of the three regenerate classes to maintenance
out of the estate of his father, is r ~ o g n i ~ e d by all the authorities on Hindoo law re-
lating to this subject ; and as to this, there was no difference of opinion between the
Pundit of the Sudder and the Pundit of the Xillah Court, although they differed on
the right to the inheritance. It i s not shown that the allowance is in excess of E531
what the Appella~t i s justly entitled to receive with reference to the value of the
estate; and on this question, the Native Judge of the Court of the District in which
the Z e ~ i n d a r y is situated had the best means of forming a correct o p i n ~ o ~ . If the
Court had thought the amount in excess, means might have been taken to ascertain
what would be a proper allowance. In this part, therefore, of the decree ‘of the
Sudder Dewanny Court, their ~ o r d s h ~ p s are unable b concur : they are of opinion
that although the Appellant is shown to have no right to the inheritance, either as
the legitimate or the illegitimate son, he is still entitled to maintenance out of the
estate of his deceased father.
Their ~ordships, therefore, will humbly recommend to Her Majesty to reverse
the decision of the Sudder Dewanny Court, in so far as it reversed tthe decision of the
Sudder Ameen, with respect to the Inaintenance, to declare that, the Appellant, as the
illegitimate son of the late Rajah Crnur Purtab Syn, was, and is, entitled to main-
tenance out of his estate, a t the rate fixed by the Sudder Ameen, and to remit the
ease to India for the purpose of effect being given to that declaration, but in other
respeets to dismiss this appeal, although without costs, the appeal having, in part,
succeeded.
229
VIZ BOORE IND. U P . , 54 SOOXDUR K O O ~ ~ R E ~ DEBBEEA
E541 SOONDUR KOOMAREE D E ~ ~ E E A , - ~ ~ ~ e ~ Z u ~ ~ ; GURADHUR PEBSHAD
TEWARREE,-Respndemt; and GUDADHUR PERSHAD TEWARREE,-
.4ppel70'la/rat ; SOONDUR KOOMAREE DEBBEEA,-Respondent * [Feb. 8,
9, and II , 18581.
On a.pped from the S ~ ~ ~ e r ~ e w a n n ~ Adawlut at ~ a ~ ~ ~ ~ ~ a .
A childless Hindoo, a member of a divided Hindoo family in Bengal, by an
Unomuttee Pottah authorised his widow to adopt a son for him after his death,
and by that i n ~ r u ~ e n t made her his heir. His widow exercised the power,
and adopted a son for her deceased husband ; who died before attaining his
majority. Upon appeal reversing
the decrees of the Sudder Ameen and Sudder Dewanny Court, such deed was
upheld.
Beld also, that the widow was entitled to a life estate in her husband's estate after
the adopted son's death, either under the deed or as heir of the adopted son.
A verbal power to adopt is good by the Hindoo law.
In a suit in which the only points in issue were the validity of a deed of adoption
and a charge of misconduct to deprive a Hindoo widow of her marital rights,
the Courts in India decided that the deed was forged, and that the widow had
committed no act to forfeit her rights, and further declared that the Plaintiff
was entitled to succeed a t her death to the estate as heir. Surh decree re-
versed, as the declaration as to heirship was ultra wires, the proper parties
not being before the Court, and the suit not raising that question.
The first appeal was from a decree of the
Sudder Dewanny [55] Court, dated the 23rd of July, 1845, in a suit instituted in the
Zillah Court of Burdwan, Gudadhur Pershad Tewarree against the Appellant, for
possession of real estate, which he claimed to be entitled to as heir of Hurree Pershad
Tewarree, his nephew, who had died without leaving issue, on the grounds, first, that
the Appellant, Hurree Pershad Tewarree's widow, had forfeited her right as widow
and heir by misconduct; and secondly, that an adoption made by the Appellant
under an Unornuttee Pottah, or deed authorizing her to adopt, after Hurree Pershad
Tewarrec's death, abd constituting her heir, which power of adoption she had exer-
cised, but which adopted son had, howmer, died before attaining majority, was
altogether void and invalid, the Unomuttee Pottah being a fabricated instrument.
The Sudder Dewanny Court's decree appealed from, declared that this instrument
was a forgery, and decreed the Respondent to be the heir, and entitled to Hurree
Pershad Tewarree's estate, after the life estate of the Appellant, the deceased's widow,
whom the Court held had not forfeited her rights as widow.
T!ie other appeal was brought from a decree of the Sudder Dewanny Court,
dated'the 30th of August, 1848, which confirmed the final judgment of th+ Xillah
Court of Burdwan in a suit brought by the ~ e s ~ ~ d e n t in the second appeal, against
the Appellant in that appeal, to recover a large sum of money, the alleged vaIue of
moieties of certain real estates, cash, and jewels; the profits and interest of the
Zemindary, which had been withhelddroin her and her deceased husband by that
Appellant.
The facts conimon to both case8 and the nature of the pleadings appear fully in
the judgment.
I661 Mr. Forq'th, Q.C., and Xr. Leith, for the Appellant in the first, and
* Present: The Right Hon. The Lord Justice Knight Bruce, the Right Hon. T.
Pemberton Leigh, the Right Hon. Sir Edward Ryan, and the Right Hon. The Lord
Justice Turner.
230
The deed was impeached as a forgery.
These appeals were heard together.
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