~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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