B A b ~ U ~ D O S S M ~ O K E ~ ~ A ‘U. ~ W ~ ~ A M ~ T T ~ R I ~ E ~ [f 8581 VI1 XOORE IND. APP., 169

sequences because the administration of justice was not more strictly conducted

with reference to the admission of evidence; and grievous, indeed, will be the task,

and vain will be the attempt, of endeavouring to discriminate in these cases what was

the precise course the Courts of primary jurisdiction ought to have pursued. For

these reasons we are of opinion that the ordinary rule must be adhered to, and

that we must humbly advise Her Majesty to reverse the decree of the Sudder Dewanny

Adawlut, with costs.

[169] BAMUXDOSS MOOKERJEA and MUSSAMUT RAJ LUKHEE,-A~~~ellaiots ;

MUSSAMUT TARINEE,-Respondemt * [Feb. 22, 23,18581.

On Appeat from the Sudder Dewanny Adawlut at Calcutta.

Authority was given by deed, by a childless Hindoo in Bengal, to his widow, to

adopt a son a t his decease. The widow did not exercise that power, and

many years after her husband’s death brought a suit in her character as

widow, claiming his succession in the family estates. Held, that the mere

fact of there being authority given her by her husband to adopt a son did

not, before an adoption had actually taken place, supersede and destroy her

personal right as widow to sue.

This suit was instituted by the Respondent, the widow of Chunder Bosun Mooker-

jea, in the Zillah Court of Nuddea, to set aside a Will alleged to have been made by

her deceased husband, whereby the Appellant was appointed manager of his pro-

perty, and which Will declared that Chunder Bosun had adopted the Appellant’s,

Baniundoss Mookerjea’s, third son, ~~uthooranauth , and also to recover possession

of her husband’s property in the Appellant’s possession, with wasilat profits and

interest. The Respondent claimed in her own right as widow, her husband having

died childless. Previous to his death, however, he had by deed authorized her to

adopt a son for him, but that power she had not exercised. The Appell~nt~s case

was, that the Respondent’s husband had by the Will acknowledged the adoption of

his son, Muthooranauth.

[170] The circumstances wliich gave rise to the suit were these :- .

In the year 1514, Mohadeb Mookerjea, who was Chunder Bosun’s grandfa t~er ,

and was possessed of very considerable self-acquired pFoperty, divided it amongst

his family by a deed of partition, whereby he gave a 4 anna share to his brother,

~ d h a n a t h , an 8 anna share to his elder son, Doorga Pershad, and a 4 anna share

to a younger son, Kishen Pershad, and directed that the property should be held

jointly, and Doorga Pershad should be the manager. Doorga Pershad and Kishen

Pershad died during Mohadeb’s lifetime. Doorga Pershad left three song, of whom

the Appellant, Bamundoss Mookerjea, was the eldest, and Gouree Pershad and

Unnode Pershad the other two. Kishen Pershad left one son, Chundar Bosun, the

alleged Testator.

In 1823, Mohadeb Mookerjea died; and upon his death, Bamundoss Mookerjea,

under a deed of guardianship and management, executed by Mohadeb just before

his death, entered into the receipt of the rents and managment of the joint pro-

perty. The genuineness of this deed was contested by Indermoney, the mother of

Chunder Bosun, he being then only seven years of age; but the only mode of

effectually contesting it being a civil suit, which Indermoney was unable to under-

take, the matter dropped, and Bamundoss Mookerjea continued in the management

of the joint property and affairs ; and received the rents of the real estate ; and the.

profits of a trade carried on with the joint funds, without rendering any account,

and merely giving such money, from time to time, to Chunder Bosun as he thought

proper. Chunder Bosun complained of this treatment, and disputes arose be-

[l’llf-tween them; in consequence of this and of other ill treatment, and in the

* Present : The Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigb,

the Right Hon. Sir Edward Byan, and the Right Hon. Sir Cresswell CresRwell.

VI1 MiOORE IND. APP., 172 B A ~ U N 1 ) ~ S S ~ O ~ ~ E ~ E A V. M U ~ S A ~ I U r TARINEE [1853]

xnontli of ~ u g u s t , 1832, only a few weeks before his death, he presented a petition

to the magistrate, praying for inquiry and protection, in which he complained

ctf the ill treatment and injury by Bamundoss Mookerjea. Chunder Bosun had

proceeded to Calcutta to obtain redress, but he shortly afterwards, in Septembe~.,

1832, returned to his mother’s house a t Beernugger dangerously ill, and died there

on the 21st of September, 1832, having, on the moruing of the day of his death,

executed a deed of pernzission (Onoomuttee Puttur) to his wife to adopt a son, and

this deed he sent to her at her father’s house a t Santipore, where she was staying.

At the time of his death he was under eighteen years of age. His sudden death,

connected with the known enmity existing between him and Bamundoss ~ooker j ea ,

excited the attention of the authorities ; but upon an inquiry into the circumstances

before the Darogah, his death appeared to have ensued from natural causes. Upon

this inquiry, however, Gouree Pershad Mookerjea and Unnode Pershad Mookerjea,

the two younger brothers of Bamundoss Mookerjea, and Indermoney, Chunder

Bosun’s mother, and the guardian and devisee under the alleged Will, were examined,

with other relations and friends who were present during Cbunder Bosun’s last

illness. They stated the circumstances attending his illness and death, but none of

them deposed to anything regarding the adoption of ~ a ~ u n d o s s ~ookerjea’s son,

or concerning any Will being made in his favour, and no mention of the a l l e g ~

adoption, or Will, until nearly twelve months after Chunder Bosun’s death, when

an investigation in the Collectorate, under an old petition of inquiry as to the heirs

of Mohadeb, [I721 was taken advantage of by Bamundoss Mookerjea. Upon this

inquiry the Respondent presented a petition, praying for the insertion of her name

in the Register as representing her deceased husband ; and evidence was given by

numerot~s members of the family before the Nazir that she TDS Chunder Bosun’s

heir. The alleged Will was not produced or adaerted to before the Nazir who con-

ducted the inquiry, but six days after the examhation of the witnesses a copy of the

alleged Will was filed in the collector ate^ as if by Indey~oney ; and a few days

afterwards, ~ a i n u n d o s ~ Mookerjea, in her name, but, as she afterwards declared,

without her consent or knowledge, presented a petition, alleging that, Chunder Bosun

had, on the day before his death, executed a Will in her favour as guardian, in which

it was stated tbat he had adopted ~ a ~ u n d o s s Mookerjea’s third son, Muthoora-

nauth, and bad a ~ ~ p o i n ~ d ~ a ~ u n d o s s Mookerjea nza~~ager. Upon e ~ a ~ ~ n ~ n ~ the

original deposi~ions of the witnesses it was insisted that they had been tampered

with in Banzundoss Mookerjea’s interest, and the native word for “ writings ” had

been aItered into that for “ Will ” ; and that a t the end of the depositions were

found additions, written with a different pen and ink, relating to the alleged Will.

The Nazir, in his report, referred to the alleged Will, but the matter appeared so

full of suspicion to the Collector that he, by an order dated the 7th of August, 1833,

directed further inquiries, and the attendance of Gouree Pershad and the other

witnesses who had been examined on the previous inquiry; and, as they did not

attend, he uItimate1~ directed the inst~tution of a regular suit,

Under these c~ycumstances, the Respondent, who was then under age, on the

14th of September, 1844, [I731 instituted the present suit, claiming, as heir of her

husband, and also on behalf of any son whonz she might adopt, possession of Zemin-

dary, houses, ind~g~fac tor ies , profits of trade, cash belonging to her l~usband, etc.,

and also praying to have the alleged Will set aside.

~ a ~ n u n d o s s M#kerjea, by his answer, alleged that. when he heard of Chunder

Bosun’s illness he left Calcutta and went home, and that, on the 7th Assim, Chunder

Bosun, after adopting Muthooranauth, and appointing his own mother as guardian,

and Bamundoss Mookerjea manager, lost his sen~es, and the next day died ; adding,

that in obedience to the injunctions of the Will, the rites and ceremonies of adoption,

etc., according to the Shasters, had been performed, and denying the genuineness

of the deed of Onoomuttee Puttur sent to the Respondent. He also objected that

she ought to have instituted a suit to establish the Onoomuttee Puttur before seeking

to recover possession in this suit.

~ ~ d e r m o n e y filed a separate answer, denying all knowledge of the adoption and

Will, and praying to be dismissed as not being in any way responsible for the

detention of the Respondent’s property.

Gouree Pershad and Unnode Pershad also answered separate~y, but raised the

274

~ ~ ~ ~ U ~ ~ ~ ~ S ~ ~ ~ ~ E ~ ~ E A ‘U, U S ~ A U ~ T BINEE [185SJ VXI XOOEE IND. APP., 174

same defence as Bamundoss Xookerjea, and the replication having put the answer

in issue, a proceeding took place on the 10th of ~oyember , 1845, in which, a ~ o n g s t

other things, the Appellant’s Vakeels were asked when and by whom the ceremonies

of adoption were performed; and the Eespondent was required t;o produce an

authority estab~ishing her competency to sue before making an adoption under the

deed of permission, On the f1743 19th of December, the Appellant’s Vakeels

answered that the c e r e ~ ~ o n ~ e s of adoption were ~ e r f o r ~ e d on the 19th of June, 1834,

by the Respondent’s substitute, she being present a t the place of the ceremonies,

with the child in her arms, The Respondent produced a case as an authority in

~r-hich a final decree was made in a suit under similar circumstances

t ~ ~ ~ ~ o b T ~ ? ~ ~ ~ ~ i u ~ ~ e ~~~~e~~ v. ~w~~~ ~ ~ ~ ~ e ~ ~ t ~ ; and the Court held, that as, accord-

ing to the Shasters, the Respondent a8 the widow had a right to the possession of

the property of her deceased husband, it was unnecessary for her to prove the

execution of the deed of permission to her to adopt, and that there were, therefore,

only two points for determination : First, whether Chunder Bosun adopted Muthoora-

nauth, and made the alleged Will, and whether the rites and cere~onies prescribed

had been duly performed; and secondly, what was the amount which ~espondent

was entitled to recover?

The case came on before the Court on several occasions in 1846 and 1847. The

Appel~ants produced the alleged Will, which had not been registered at the time.

The deed of permiss~on, by Chunder Bosun, to adopt, was not produced, nor was any

evidence given of its existence or of its ever having been seen by any one, with the

exception that one of the witnesses, called and examined on behalf of the Respondent,

stated that he had heard that Chunder Bosun had executed a deed of adoption and

sent it to Santipore, but the witness stated also that he was not present a t the alleged

execution of the deed. By far the greater portion of the evidence of the witnesses

called on behalf of this R e s ~ n d e n ~ ) related to the value of the property in dispute,

and to the question whether the EX76”J property was ancestral or purchased by the

first Appellant. Several witnesses were called on her behalf to show that large sums

of ready money had been left by ~ ~ o h a d e b , in which she was entitled to share, On

behalf of the Appellant, witnesses were examined, and numerous documents relating

to the property in dispute and to earlier proceedings in the Courts of Justice were

put in evidence to show the manner in which he had acted as ~ u a r d ~ a n of ~ u t h o o r a ~

nauth, and that several of the factories and gardens included in the claim of the

Respondent were not ancestral property, but had been purchased by Bamundoss.

Other witnesses were also called on behalf of this Appellant, who said they were

present at the making of the alleged Will of Chunder Bosun, and also to prove the

adoption of Muthooranauth. Two of the four subscribing witnesses to the last-

inentioned in s t~u~nen t were called and examined on behalf of this A p p e ~ l a ~ ~ t . Of

the other two witnesses, one was dead, and the other, although summoned on behalf

of the Appellant, did not appear.

On the 20th of September, 1847, the Principal Sudder Ameen of the Court of

Nuddea delivered judgment in the case. This judgment decided, in substance,

first, that the evidence did not establish that Chunder Bosun had executed the

alleged Will or had adopted ~uthooranauth, and, as to the two attesting witnesses

to the alleged Will, the Court disbelieved their testimony and described them as

‘‘ professional witnesses ” attending the Nuddea Court. Secondly, the Court held

that there vas no sufficient proof that the property alleged by Bamundoss Mookerjea

to be self-acquired was not so, and that the Eesponden~ was only entitled to her

husband’s share in the property acknow-[176]-iedged to be ancestral. Thirdly, that

the whesses called on behalf of the Respondent, to prove that she was entitled to

share in a sum of Rs. 300,000 of ready money, alleged by her to have been left by

M o h a ~ e ~ were not entitled to credit, Fourthly, that the witnesses called on behalf

of the Resp~ndent, to prove that stte was entitled to the gold and silver plate claimed

by her, were not entitled to credit. Fifthly, that some of the witnesses called on

behalf of the Eespondent had given false evidence with respect to the annual profits

of the lands ; that with respect to a large portion of the claim, the annual value of

the lands had not been proved; but that with respect to the Talook ~ h o u l ~ a r ~ ,

the ~ e s p o n ~ e n t was entitled to recover Rs, 35,055 for mesne profits. The Principal

Sudder Arueen then went on to declare that the claim in the suit should be amended

275

VIX NIOOBE IND. BPP., 177 BAMUNDOSS ~0~~~~~~ U. ~ ~ s s A ~ - ~ ~ ~ ~~ ~~ [lS58]

according to the above finding, and decreed in favour of the Respondent, that the

Respondent should obtain from Baniundoss ~ ~ k e r j e a , and from Gouree Pershad,

and Unnode Pershad, posseasion of one-fourth of certain ~ e ~ i n d a r i e s and Talooks

mentioned in the decree, and of the dwelling-house of Beernugger, together with

mesne profits of the Talook Shou~maree, to the extent of Rs. 35,035, with interest

down to the day of payment, and that the Respondent should, after an inquiry,

obtain the mesne profits of the remainder of the decreed property from the day of

the institution of the suit to the day of receiving possession.

Bariiundoss Mookerjea, and Gouree Pershad and Unnode Pershad, appealed to

the Sudder Dewanny Adawlut at Calcutta, and a cross appeal was also brought by

the Respondent.

The decree of the full Bench of the Sudder D e ~ a n n y E1771 Court was pronounced

on the 30th of September, 1850, and was in these terms ( a ) : " On the point of the

right of a widow to sue on her personal claims as widow, in a plaint in which she

also meI~tions that her husband had given her author~ty to adopt a son, which is

the second objection which has been raised against the admissibility of the plaint,

there have been long and able arguments in this case; it being contended against

the Plaintiff, that since there is such R mention distinctly made of authority to

adopt in her plaint before the Court, her personal right as a widow must be taken

upon her own statement to have lapsed, the right vesting from the date of her has-

band's death in the boy thereafter to be adopted by her, according to the principles

of IIindoa law, and specially according to the precedent in the case Beejayah Da'bbeclh

v. Slzcrrnn Sooizdrse Uibbeuh (Sud. Dew. Adaw. Rep. of 1848, pp. 762 to 766). The

dccision in the case of Beejayah D ~ ~ b e a h had not been passed when the present s u i t

was brought before the Principal Sudder Aineen. We, by a proceeding of December

the 19th, 1845, adinitted the suit for the personal right of the Pla~ntiff as widow,

n ~ t w i t h s t a ~ ~ d ~ n g the mention of an authority to adopt, on the ground of an un-

published precedent of this Court { B ~ i c r ~ ~ ~ ~ e s s u r e e D i ~ ~ e a ~ ~ v. ~ ~ ~ L ~ r ~ ~ ~ ~ ~ e e , 10th of

April, 1821). It does not appear that in that case, though the suit of the widow

was a d i ~ ~ t t e d , any o b j ~ t ~ o n had been raised on that point. The adm~ssion of the

suit is not, therefore, to be considered as having been directed on a judicial decision

after argument. We have, after a ful l and careful examination of the question,

and with the advantage of a very p~o-[l7~]-tracted iscussion and of a minute

e x a ~ ~ n a t ~ o ~ ~ of all the authorities by the pleaders of the parties in this appeal, come

to a conclusion differing from that of the majority, Messrs. Tucker and Nawkins,

who ruled the point in the recent decision in the case above cited of Beejayah Dibbeab

v. Slinrna Soomdrree Uibbeah, and are of opinion, that the fact of an authority to

adopt a son being possessed by a vidow (the actual existence of authority has not

come to proof in this case, but has been assumed upon her own statement for argu-

ment as part of her own case) dws not supersede and destroy her personal right

as widow: and that those rights continuing of force till an adoption is actually

made, there is no bar to the admission of the present claim by the Plaintiff as widow,

We shall, in explaining the grounds €or this apinion, allude first to the reasons on

which the decision from which we dissent was passed, and then notice more generally

the texts and princ~ples of Hindoo law applicable to the subject. The subjoined

extract from the decision in question shows all the grounds on which it rested. These

grounds, it will be seen, are the opinion given by the Pundit on the question put to

him in that appeal, and the opinioris of the Pundits in &.nee ~ ~ ~ ~ e ~ / n ~ m e e v. Rajah

~ o ~ w ~ t S k g h (3 Sud. Dew. Adaw. Rep. p. 228):--Messrs. Tucker and Hawkins

there say : ' The Plaintiff sues for her share of the estate as heir to her deceased son,

and in her plaint sets forth that she has power from her husband, in the event of her

born-son's death, tb adopt a son. Thc a u t ~ e n t i c ~ t y and validity of the testament

conferring this power she asserts in the last paper fiIed by her upon the record of

appeal. The question was put to the Pundit of [179] this Court, whether a widow,

with power from her husband to adopt a son, can sue as heir in her own right for a

share of the ancestral estate. The Pundit replie8 distinctly that she cannot; in

fact, it was laid down by the Pundits in the case of Ba92ee ~ ~ ~ e m ~ ~ ~ e ~ v. RcLjaa

The ~ u d g ~ e ~ t of their

Lordships, post [? Moo. Ind. App.], p. 206, adopted it er.

- __-_-^_l --ll_l__l_l__l- "- llll__

(a ) This derree is from its in~portai~ce s t out a t length.

276

&AMUNDOSS MOQKERJEA 9. MSUSSAMAT TARKNEE 8581 V U NOORE XND. MP., 180

U O ~ W ~ L ~ s;llgA, cited above, &at the moment permission to a widow to adopt a

son was pronounced, it had the same effect as if a child had been conceived in the

womb of the widow, and her intention to adopt under the permission, operated to

all intents and purposes as if she were emcebte , and that the boy subse~uently

adopted by her had all the rights of a posthumous child. It thus appears that the

plaint in the present case cannot be sustained. The Plaintiff declares she has a

power to adopt, and she asserts the present validity of that power. Her plaint

therefore is much the same as if she had sued as heir, alleging that another existed

having a right by inheritance prior to her own.’ From the substance of the question

to and answer of the Pundit, it is manifest that though the Pundit stated that, in

his opinion, the suit for a personal right as widow could not lie under such oircum-

stances, he has, in effect, when citing a u t ~ ~ o r i t ~ e s , as umed the entire question as

to that, its main point at, issue, and has not quoted only texts which are quite value-

less as to the doubts proposed to him,-their purport being merely that suits would

not lie if they were opposed to the Shasters, ancient custom, or right. The case of

Rame K ~ s ~ ~ m ~ ~ e e v. Rajah Uodwutat Si*& which is the other ground on which

the judgment of Messrs. Hawkins and Tucker proceeded, is one which turned on a

point perfectly distinct from that now before us. The point in that suit was,

whether a retrospective right could be [180] claimed by a son after he had been

adopted, so as to bar a sale made by his adoptive mother previous to his adoption,

to the injury of the rights, a t that time contingent and eventual, but which actually

accrued to him upon his adoption. In that case, the son, when adopted, became

the undoubted heir j and it was of course the correct doctrine that no sale made by

a widow, who possesses only a very restricted life interest in the estate, could have

been good against any ultimate heir, whether an adopted son or otherwise, unlescr

made under circumstances of strict necessity. There was, too, the peculiarity in

the case, that it was held by the Pundits that, by the terms of the Will of her deceased

husband, the widow was only an appointed i ~ a n a ~ e r of the estate, and that ‘ the

right of property vested in the son subsequently adopted, from the time of the

Rajah’s death, and the adopting widow had no authority but that of intermediate

~ a n a g e ~ e n t under her late husband’s Will.’ The case then stands by itself, and

affords no general precedent, a~though even if it did it would relate only to the

rights claimable by an adopted son after adoption made. Upon the general argu-

ment, we do not propose to follow the discussions which have been raised before us

into the different points of speculative doubt and nicety that have been referred to,

as to the possibility of the existence of rights, present or contingent, in a child

from the moment of its conception in the womb,-as to what is the precise time of

vital conception or existence, according to Hindoo law and usage,-as to analogies

between the cond~tion of a widow who has received p e r ~ ~ s s i o n from her husband

to adopt, and of a widow naturally pregnant,-as to the abstract causes or grounds

of inheritance,-or [181] as to modes and questions of Hindoo obsequial or other

cere~onies. We believe that, were we to enter on these subtleties and niceties we

should complicate and obscure the law by iiovel distinctions, such as have no sanction

from past decisions of the Courts, or from the established usages of the Hindoo

community, and such also as are not capable of being adopted as practical guides

for judgment with any consistency and certainty. We shall rest our opixiion on

+he ,admitted principles and positive texts of the Hindoo law, as current in Bengal,

taking words in their plain and ordinary meaning, and endeavouring to collect all

that is important on the subject in former decisions or published authorities, and

to ascertain the correct sense, as to the point in question, of the varying notices of

it which are to be gathered from those sources. Now, there i s no doubt as to the

declared right of a widow in Bengal, to succeed t o her husband’s estate upon his

death, in default of lineal male heirs down to the great-grandson in the male line,

This is a right certain and ~ n ~ o n ~ s t a b l e . It is urged, on the other hand, that there

is not any direct text enjoining that in the event of the pregnancy of a widow on

the deat3h of her husband, her right to succeed shall be held in abeyance until it be

seen whether she is delivered of male or of a female child, The argun~ent as to a

widow who has permission adopt, i a only that, according to the dicta of the

Pundits, she is to be regarded as emcekie . If no test can be shown for the s u s

pension of the rights of a widow actually pregnant, it is still more certain that there

271

WI ~ O O R E IND. AFP., 182 ~ A ~ ~ U ~ D ~ S S 1 ~ 0 ~ ~ ~ ~ v. ~ ~ U S S A ~ ~ A ~ ~~ 1 ~~ fl8581

is no siniilar provision for divesture of right in the case of a widow held only to be

ConstructiveIy pregnant ef a son through the [I&] effect of a permission to adopt.

The single passage of the Hindoo law on which the objection to the widow’s right,

in the case either of a real or of a constructive pregnancy is directly rested, i s the

foKlowin~, which i s noted in the two cases (Ranee K ~ ~ e ~ ~ u ~ e e v. ~a~~ O ~ ~ w u n t

SingA, above referred to, and ~ u ~ k i ~ h e ~ Suvkliyl v. ~ u ~ s ~ r n ~ a u t Sri Mutee Uibia,

3 Sud. Dew. Adaw. Rep. 367), which have been much cited in the courae of the dis-

cussion, and of which the translation is subjoined from Colebrooke’s translation of

the Daya-Bhaga, ch. i. see. 45. ‘They who are born, and they who are yet un-

begotten, and they who are actually in the womb, all require the means of support;

and the dis8ipation of their hereditary maintenance is censured.’ Upon this

passage it has been contended, on behalf of the widow, that it prescribes a moral

duty rather than a legal obligation ; as, were it held to be of strict legal force, it

would militate against the admitted right of a Hindoo father in Bengal to dispose

of his property according to his own choice by Will. But apart from this, it is to

be observed that the very terms of the text providing for sons yet unbegotter~, refer

to a Gontingentand future, and not to a preaent right. In perfect consistency with

this, we find that the right accruing to an after-born son, in regard to real ancestral

property, is thus described in the same treatise {ch. vii. see. 11). That is declared

by Vishnu,-‘ Sons with whom the father has made a partition, should give a share

to the son born after the distribution.’ So Tajnyawalcya,-‘ When the

Nons have been separate, one, afterwards born of a woman equal in class, shares the

distribution. His allotment must positively be made out of the visible estate

corrected for income [la] and expenditure’; to which is appended the follow in^

note by the commentators Sricrishna, etc., as to the words ‘must positively’:-

‘ The particle ?& is aarmative, and what has been consumed is consequently ex-

cepted.’ See also the ~ a y a c r a m a S a n g r a ~ ~ a , as t o the right accruing to sons after-

wards horn, ch. v. secs. 21 to 24. So that the after-born son’s right i s to his share

of tlie estate as it stands at the time of his birth, and not retrospectiveIy with refer-

ence to its state a t any supposed period of his conception. h stroiig i l lus t ra~~on to

the same effect is to be drawn from the law of partition according to The Mitacshara,

in which it is laid down (eh. i. sec. vi. 11, la), that if the pregnancy of a brother’s

widow be manifest at the time of an intended partition, the partition should be

postponed till after the delivery. Some c o I ~ ~ ~ e n t a t o r s , as will be seen by the note,

hold the sense of the passage to be, that partition may a t once take place, but that

a share should be set apart for the widow who is supposed pregnant, and when she

is delivered, the share is to be assigned to her son ; and this interpretation is rejected

by others chiefly because, according to the law of the western schools in regard to

an estate still undivided, ‘ widows are not entitled to participate as heirs.’ The

clear inference is, that could a widow have been heir, as she can incontestably be in

Bengal, she might have been admitted on her own right during pregnancy, the

share devolving to her son only on his birth. As to the law of Bengal, it need only

be added, that the commentator Scricrishna, when expounding, Daya-Bhaga, eh. i,

sec. 43, the peculiar doctrine of the Bengal school, as to I right of inheritance not

vesting in the son till after the death of the father, says of a passage [l&$j of

Gautarna, cited in The Mitacshara, on birth being the means or cause of the aequisi-

tion of property, that the text is u n a u t h o r i ~ ~ , or, i f it be authorized, it relates to

the case of one whose father dies while the child is in the mother’s womb. Here is

an express and indeed, to our minds, a conclusive reference to actual birth after

the death of a father, as the period of commencement of right. Of authorities

other than the direct text of the law and commentaries, the following may be

quoted :-Sir W. Macnaghten’s ‘ Principles of Hindu Law,’ vol. i. p. 2 : ‘ The most

approved conclusion appears to be, that the inchoate right arising from birth, and

the reIinquishment by the occupant (whether effected by death or otherwise) ~ 0 x 1 -

jointly create this right,-the inchoate right which previously existed b e c o ~ i n ~

perfected by the removal of the obstacle.’ R. Colebrooke, in Strange’s ‘ Bindu Law,’

vol. ii. p. 127 (2nd Edit.) : ‘ Presuming the property here spoken of as the wonian’s

to have been what devolved upon her by the death of her husband, and not to have

been her proper Stridhana, it ceased to be hers a t the moment of a valid adoption

made by her of a son to her husband and herself ; in the same manner as property,

278

(Sec. 12.)

~ A ~ U N D O S S ~ ~ o o ~ ~ ~ E A v. ~ U S S A ~ ~ U ~ T A R I ~ E ~ [l8 5 81 VII XOORE IND. UP., isu

coming into the hands of a pregnant widow, by the same means, cannot be used by

her as her own, after the birth of a son. An adopted child is in most respects pre-

cisely similar to a posthumous son. From the moment of the adoption taking effect,

the child became heir of the widow’s husband, and the widow could have no other

authority hut that of mother and guardian.’ The only means of evadiitg the

application of this opinion, so weighty and so directly to the point, has been by

arguing that it was given in regard to a Madras case, [IS] and had reference to the

law of The Mitacshara. But first, no distinction between the two schools, as to the

point in question, are in any way alluded to in the opinion ; and next, the case itself

was one of the succession of a widow to the separate property of her husband, in

which case a widow has the same right under The Mitacshara as she has in all cases

according to the Bengal law. There is a difference between the two schools as to

the period at which, after birth, the rights of sons over the property of a father

commence,--‘l‘he Mitacshara school holding the commencement to be immediate

and the rights of the sons to be concurrent with those of a father (as with us in the

familiar case of an entail); and the Bengal school holding the rights of the sons to

co~tinerice only on the death of the father. But there is nothing in that difference

which affects the appIicability of Mr. Colebr~ke’s opinion to the case of sons in

Bengal, as well as elsewhere, antecedent to birth. Se0 the dictum of the Privy

Council in D?rur?n Bus Pandey v. Shama S o o n d ~ i Dibiah (3 Moore’s Ind. App. Cases,

243). Now, upon the authorities, there can be no doubt that that is the result of

an act of adoption, because the property is in the widow from the death of the hus.

band till the power of adoption is exercised. Then that adoption divests it from the

widow and vests it in the adopted son. Authorities are not quoted for this opinion,

nor does the point appear to have been specially discussed in the case. But the

passage shows the sense of the highest judicial autliority as to the admitted doctrine

on the subject. An anonymous case may also be cited from the n~anuscript papers

of S i r Edward H, East, in Morley’s Dig. (vol. ii. p. 18), in which incidentally, the

same opinion is very strongly [186] expressed :-“ Since the Defendant had come

to the age of sixteen, the widow had given up the property entirely to his manage-

ment and benefit, which was a strong corroboration of the truth of the Defendant’s

case, because the widow herself had actually, by the adoption, deprived herself of

a life--estate.” Of the cases decided by this Court a t all bearing upon the question,

those of Ranee Kit*henmunee v, Rajah Ooduwfit iSinglh, and of Rmnkis1~7ren Surkhyl

v. Muss.umzmaut Sri Mutee Dnbb, before referred to, and another case of Pram iVatla.

Rai v. Raja Covind Chandra Rui (5 Sud. Dew. Adaw. Rep. p. 37), which has been

cited in the argument, relate, a8 has been noticed, to the distinct point of retro-

spective rights claimable by a son after adoption; and the text of Hindoo law, in

respect to the rights of sons unbegotten or in the womb, in which the entire stress

has been laid in connection with the two first cases, has been above fully adverted to

and explained. There is a case ( H ~ s ~ ~ ~ ~ ~ t ~ l u w a n i Humee v. ~ L ~ ~ ~ u ~ r r ~ ~ ~ ~

Sotukhna, 1 Sud. Dew. Adaw. Rep. 322), wliich is in support of the general view

which we have formed. A decree was there made by Mr. Harrington in favour of

six daughters’ sons, with reservation of the eventual birth of other sons to one of

the daughters, who would be entitled to share with the other daughters’ son. A

case has been much relied on in opposition to the right of the widow, that of K a r u a

Mai v. /ai C h u ~ r a Ghos (5 Sud. Dew. Adaw. Rep. 42). See also Xisherr Lochan, Bosi

v. Tarini Dasi (5 Sud. Dew. Adaw. Hep. p. 55) decided by Mr. Turnbull, the effect of

which is thus stated in the marginal note :-‘ By the Hindu Law in Bengal, a sister’s

son (even though unborn or unbegotten, at the time of his maternal uncle’s death)

is an heir preferable to the [187] son of the paternal uncle of deceased ; and a sister

likely to produce male issue (though having none), as trustee for such issue, enters

on the succession of her deceased brother’s estate, to exclusion d his paternal

uncle’s son.’ The authority of this case has been much shaken by the subseq~~ent

decision of Mr. Walpole, in the case of hakhi Priya v. ~~~~a~ Chamdra C ~ a u ~ ~ u ~

(5 Sud. Dew. Adaw. Rep. p. 315), but on a ground distinct from that now under con-

sideration. For the latter decision went on the point (see p. 321) that ‘ the test of

Menu, which deprecates deprivation of subsistence of the unborn, had regard to the

estate of the paterna1 grandfather,’ and did not apply to the case then before the

Court, of the estate of a maternal uncle. But the fact, which, under any circum-

279

VI1 ZOORE INE), APP., 288 ~ A ~ U ~ D ~ S ~ M ~ ~ ~ E R J ~ A 21. U ~ S A ~ U T ~ A ~ ~ ~ E ~ [l SSS]

stances, entirely distinguishes the case of I(ar*u.aa Mai v. Jag C ~ ~ n ~ u Ghos from the

present one, is that the question there was of the nature of the possession to be given

to a sister who is incompetent to be an heir to her brother ; and tlie question here is

of a widow who is an indisputable heir to her husband‘s estate. Possession given

in the first case to a sister could only be as trustee for others. On the merits, how-

ever, of the decision itself, it will be seen to have rested on opinions delivered by the

same Pundit, so shifting and inconsistent as not to command much respect. There

are passages a t tlie same time in his first elaborate Bywasta which point distinctly

to the rights of unborn sons as being eventual only; for instance, that Bywasta

states, a t p. 44, ib., that the first authority adduced ‘ established, that the father’s

daughter’s son took deceased’s estate, if existing a t the time of his death ; but not

that the ownership in the estate should remain in abeyance, and a t the end of an

indefinite time the succession fl vest in the posthumous sister’s son. And again,

‘ Inspired legislators had made provision for the custdy of the mtate of minora,

but neither they, nor any writer, had provided for the charge of the estate of the

unborn during an indefinite time ; therefore the unborn could have no property.’

It remains only to notice two cases; in one, ~ ~ s u ~ ~ u ~ ~ i ~ u ~ ~ u ~ ~ o w ~ ~ ~ y ~ v.

~ ~ u s ~ ~ ~ ~ u ~ Pad00 IMumee ~ ~ i w d r a ~ ~ (4 Sud. Dew. Adaw. Rep. p. 19), of which

the fact of a widow having received a pe r~ i s s ion to adopt, was ad~udicated on,

although no adoption had been made; and in another, ~ u ~ s ~ ~ ~ ~ Subadra Chow-

drayn v. ~ O ~ ~ ~ ~ t ~ C ~ o ? ~ ~ . y (7 Sud. Dew. Adaw. Rep. p. 143), of which the majority,

Messrs. Tucker and Reid, of the Court, held, that until an adoption was actually

made, no action would lie in regard to the validity of an alleged deed of permission.

Little of weight can be deduced upon either of these decisions as respects the point

now under ~ n q u ~ r y : they are in themselves brief and general as regards the point of

receiving or rejecting a suit under the circumstances stated, and do not furnish

strong authority in support of a judgment on either side in the present controyersy.

Again& the direct author~ties and reasonings above detailed, there i s nothing to be

stated, but some doubtful allusions as to what the term ‘ birth ’ positively intends,

when employed in Hindoo Law. A passage in ~olebrooke’s ‘ Dig.,’ vol. ii. p. 505,

has been referred to, in which birth i s spoken of ‘ as a particular relation of body,

not a relatioq taking place a t the first instant of procreation.’ The Pundit of this

Court, in the first Bywasta in Karecna: A4ai v. 3ai G h a ~ ~ a Ghos (5 Sud. Dew. Adaw.

Rep. p. 44), says ‘ birth was twofold ’ : it might be referred to the period of ‘ concep-

tion or to [1893 actual production.’ In the marginal note by Mr. J. C. C. Sutherland

(a gentleman whose opinion on points of Hindoo Law is deserving of much respect),

to the case of Lakhi Pr iya v. Bhairab Chun&a Chaudhuri (5 Sud. Dew. Adaw. Rep.

p. S15), he has introduced the words (not to be found in the decision as set forth in

the body of the report) ‘Right of succession cannot remain in abeyance in the

expectation of the future production of such heir not conceived at the time of

succession opened.’ It has been argued that Eindoo rules and family customs have

e~tab~ished a period, in the sixth month of pre~nancy, from which conception, in

a legal sense?, can be calculated. These, however, are very feeble grounds for intro-

ducing a novel and most perplexing standard and origin of right into our practical

jurisprudence; and it is obvious that the rather fanciful analogy which has been

contended for between a real pregnancy and a constructive pregnancy through a

ermi mission to adopt, will here fail; for tlie argument has been, that the right vests

in the child to be adopted from the moment that permission to adopt is pronounced

by the husband, and not from the sixth month or any other period after that date.

The truth is, that the supposition of a positive and actual right vested in an embryo

which may never come into full existence, is one which must almost be rejected on

the mere statement of it. I t is particularly repugnant to common reason in the

case of a powiltle adoption, which may be made after the lapse of many years, or

may never be made at all. If the s u p p ~ ~ t i o n were to be admitted and acted upon,

the effect would be to alter the whole course of natural inheritance, for there would

be one course of inheritance as from the son to be adopted, and another (as [19@J is

usual at present) from the widow’s husband upan her own death. The rights, for

instance, of any ~augh te r s of the husband would in the former case be wholly set

aside. It is true that a widow may, from the continuance of her l if~interest , have

an interest opposed to her duty, which should lead her, if she has a permission from

280

BAMUXDOSS MOOXEWEA V. 5IUSSAMUT TARINEE [I 18583 VI1 XOORE IND. UP., 281

her l~usband, to adopt a son without any delay which she can avoid. But there

appears to be no power under the Hindoo Law to compel a widow to adopt, thou&

a case (in Macnaghten’s ‘ Principles on Hindu Law,’ vol. ii. p. 247) has been referred

to, where there is a mention of an incompetency in a widow to succeed, if she neglect

to make an adoption. The subject, however, is only cursorily noticed in that case,

and in connection with a point which appears to have been ruled upon different

grounds. The quation of any possible check on a widow, who wilfully protracts

or evades an adoption specially enjoined upon her by her husband, is not before US ;

and what we have to decide, viz., the power of a widow, duly authorized to adopt, to

claim under any circumstances her personal rights until she does adopt, is not

affected by a consideration of what might be the proper course, if she could be

proved to have violated any clear and positive legal obligation.”

The Court then proceeded to give judgment on the validity of the Will and alleged

adoption set up by Defendants in these terms: “The objections, raised upon the

nature of the plaint, being disposed of, it rcmains to decide upon the third and last

plea preferred by the Appellants in the case No. 541 of 1847, namely, their claim

under the Will of the deceased, Chunder Bosun, alleged to have been exemted 13y him,

the day before his death. On the subject of the Will, we End [I911 it important to

note the following obser~ations. The document has not been registered. Ilad-

hanauth, the brother of Mohadeb, the common ancestor of the parties in this cause,

is alleged to have been present when the Will was drawn out. It is alleged that the

Will was executed and Muthooranauth adopted by his advice; yet the Defendant,

Bamundoss Mookerjea, admits that he and Radhanauth had many disputes. Indeed,

in his petition of the 9th of August, 1832 (or only six weeks before the alleged

execution of the Will) which will presently be referred to, Bamundoss called Rad-

hanauth his mortal enemy. Radhanauth’s name is not attached to the deed, nor

are the names of any of the relatives of the family; neither is there a particle of

evidence to show when and under what circumstances this acknowledged bitter

enmity ceased. It is said for the Appellants that respectable natives object to be

witnesses to deeds, as it subjeots them to be cited to give evidence in Court. This

was a most urgent reason for having the Will registered as soon as it was drawn.

No such precaution was however taken. It appears from a petition presented hy

Chundur Bosun, i m ~~~~ p e r s m , t o the Magistrate, on the 4th of August, 1832,

that he and Ba~undoss Mookerjea were then great enemies. He therein ~ o n ~ p l a i n ~ d

that Bamundoss Mookerjea was about to drive him and his mother out, and had

subjected him to extreme ill-treatment and indignity; that Bamundoss Mookerjea

was making away with the accounts; that the Petitioner had only a few months to

attain his majority, when the accounts must be rendered to him; nothwithstanding

which, the Will, dated but a few weeks afterwards, or on the 22nd of September

idem, is altogether in favour of Muthooranauth, Ba~un-[l92J-doss Mookerjea‘s son.

The esistecce of extreme enmity is thus shown, and no attempt has been made to

prove that subsequent reconciliation took place. In answer to the above petition,

Bamund~ss Mookerjea, on the 9th of August, 1832, distinctly styled Chunder Bosun

as a minor who had absconded, and for whom he was anxiously in search lest he

should get into harm. There is no mention of preparation of draft or discussion

of terms (such as is always usual with the natives of this country) of any Will before

the 21st of September, the day of Cthunder Bosun’s death. Nevertheless the instru-

ment is one most elaborat~Iy prepared, with every possible provision to secure the

interest of Bamundoss Mookerjea’s son, and to shield Bamundoss Mookerjea from

every description of responsibility. If the state of the deceased was such as is shown

by Banmundoss Mookerjes himself in the second paragraph of his answer on the

record, namely, that having caused the Will to be written, the deceased the same day

became perfectly senseless (hotto c h ~ u n n o ) , it is hardIy possible that he shouId have

been capable of dictating and understand in^ its contents, drawn as they are with

such studied particularity and precaution, and of signing it, as it appears to have

been signed, with a perfectly firm and steady hand. The iirmness of the signature

i s p a ~ i c u l a r l y remarkable, so as to be quite inconsistent with its being the act of

a man reduced to the last stage of illness. Again, the recitals in the Will a re

opposed to statements made by the Defendants on other occasions. Inconsistencies

of the kind must add to the impression arising from the other Circumstances which

281

XOORE IND. APP., 193 ~ A ~ U ~ ~ ~ ~ S ~ i ~ ~ K ~ ~ ~ A ‘U. ~ i U S S ~ U T TARINEE [ 18 5 81

shake the credibility of the Will. The Will enjoins that the conditions and cere-

monies of adoption shall be performed by the Plain-[f93]-tiff, the widow. The

Defendant’s pleader. being asked by the Principal Sudder Ameen, on the occasion of

the preparation of the proceeding under section 10, Ben. Reg. XXVI., 1814, on what

date the Plaintiff performed the ceremonies, answered, that he must. refer to his

principal for information upon that point ; and then on the 19th of December, 1845,

said, that she had performed them on the 19th of June, 1534 ; that she was present

in the room, and that she received the child in her arms. Several witnesses were

produced to prove this fact, but they said she was in a separate room. Moreover,

in the petition presented by two of the Vakeels of this Court (Bungshee Buddun

Mittur and Rajnarain Dutt), on the 26th of December, 1844, it was stated by them,

on behalf of Bamundoss Mmkerjea, that Chunder Bosun, when in full possession of

his senses, had himself performed all the ceremonies of adoption of Muthoornauth,

according to the Bengal Shasters ; or, to make use of the words of the petition, ‘ had

completed all the conditions and forms of adoption;’ and that, therefore, the

Plaintiff could not object to his adoption in opposition to her deceased husband’s

acts. These discrepancies, though not conclusive evidence against ~u thoornau t~ i ,

who was a minor when the petition was filed, afford strong presumption that his

claim under the Will has no good and just foundation. There is another circum-

stance connected with the Will, which, though we do not lay conclusive stress on it,

must yet not be passed over without comment. It is a very remarkable fact that the

alleged Testator throughout the Vvill, speaks of matters connected with his minority,

and in no part of it, declares hiinself a major. It may be said, that the making a

Will is in itselE a [I941 presumptive proof and assertion on his part that he had

attained his majority. It appears however to us worthy of notice, that in an instru-

ment containing so much detail, and drawn with so much care, labour, and con-

sideration, including a circumstantial narrative of all the antecedent circumstances

of the family and property, the important fact that the Testator was of age was not

set forth distinctly. It would be no strained inference from the terms and general

purport, of the instrument, to conclude that Chunder Bosun had not attained his

majority. Indeed Barnundoss Mookerjea’s petition of the 9th of August, l833,

already adverted to, which refers to his rninority as to last for eight or nine months

longer, in strong confirmation that Chunder Bosun a t the time of his death was a

minor. As to the vcrification of the Will, it i s to be observed that the names of four

persons are attached to it, namely, Bishnath Bose, Nusseeram Singh, Chundurnath

Chatterjee, and Hurreemohun Chatterjee. Of these Hurreemohun is dead. Bish-

nath, alleged by the Defendant to be the writer of the instrument, although. sum-

moned, is not forthcoming : and the Appellants did not, as required by law, take at a

proper time the necessary steps to cause his appearance. They made, indeed, at a

s u ~ s e ~ 7 ~ e n t period, a general application for a fresh ~ ~ o e ~ ~ to be issued to some

sixty witnesses, Bishnatli being one of them ; but this the Principal Sudder b e e n

rejected as being a mere device to protract the proceedings. Xusseeram and Chun-

durnath were examined by the Principal Sudder Ameen, as were sundry other wit-

nesses as ta their knowledge of the Will. He has rejected their evidence, but i n

so doing has, without any proof adduced, thrown an imputation upon the two wit-

nesses ab~v~[ l95~-named , of being professional witnesses, undeserving of any credit.

As we find nothing on the record which justifies the expression of such an opinion,

we deem it necessary to notice that the Principal Sudder Ameen’s conduct in offering

such remarks, unsupported by any proof, i H most censurable. As to the other

vitnesses who have also been examined with a view to substantiate the Will, we find

that they too have deposed to its execution, as well as to its attestation by Nusseeram

and others. Thew witnesses say that they were present on the occrssion, but w e

cannot attach such weight to their testimony as would induce us to declare the Will

genuine in opfosition to the very strong proofs already referred to, not adduced by

the Plaintiff, but arising mainly out of circumstances and events over which slie

had no control. This eireumstantial evidence, we would pointedly remark, is

srpplied by the principal Defendant himself. The non-registry of the Will, his

discrepant petitions and statements, his petition of the 9th of August, 1532, to the

Magistrate, added to the ternis and conditions of the Will itself {the preparation of

-tvhictt is admitted to have been deferred to the very last ~ o m e n t ) , are circumstances

over which the D e f e n ~ a n t ~ had erery control; and which in our judgment create a

282

RAMUNDOSS MOOKERJEA ‘U. MUSSAMUT TARINER [ 185 81 VI1 MOORE IND. APP., 196

high degree of suspicion aa to the genuineness of the instrument which greatly out-

weigh any testimony or proof that has been brought by the Defendants. It has been

argued that the non-registry of the Will cannot be held to be a valid objection, in-

asmuch as the Court has prohibited the registry of Wills or documents of persons

deceased. The answer is, that this rule was laid down in case No. 1218, of the 21st

of June, 1839, long after tlie alleged date of the Will in [I961 question. It has also

been urged that the instrument has been in the public offices from a period within ten

months of its alleged execution; but this can afford no satisfactory proof of its

actual exception by the deceased : but further, even if it be admitted to be genuine,

the validity of i t is question on the ground of its being the act of a minor. The

presentation of the petition of the 4th of August, 1832, in propria persona, by the

deceased Chunder Bosun, to the Magistrate, which is acknowledged to be a genuine

document, is evidence of the nature to which we have above advertsd. It is

evidence beyond the control of the parties before us. The Petitioner therein stated

that eight or nine months of his minority still remained, and he died within forty-

eight days of the presentation of that petition. The Defendant, Bamundoss Mooker-

jea, ill his answer t o that petition, given to the Magistrate a few days subsequent to

it (a document also acknowledged by his pleaders to have been presented by him)

repeatedly speaks of Chunder Bosun as a minor, whose well-being and conduct it was

his (Bamundoss Moclrerjea’s) duty to look after. This is evidence drawn from un-

impeachable sources, furnished, too, by the principal Defendant himself, many

yesrs before the institution of the suit, and forms the strongest possible presumption

(we had almost said conclusive proof) of the fact of the deceased Chunder Bosun’s

minority a t the time of the alleged Will. We cannot, then, after duly considering

and weighing all that is before us, but declare that, i n our opinion the Defen-

dants have altogether failed in proving the Will in their favour. There is, besides,

the strongest ground on the record to believe it to have been the act of a minor, and,

therefore, legally inoperative and inad-[197]-missible. We cannot, therefore, upon

the ora! evidence which the Defendants have brought to support the Will, aiid

which is disproved by all the circumstances and probabilities of the case, believe

that any permission, oral or otherwise, was given by Chunder Bosun for the

adoption of Muthoornauth. Under such circumstances. the right of the Plaintiff,

the widow of Chunder Bosun, to succeed to his estate under the provisions of the

Hindoo law, is indisputable, and we have only to determine how much of the pro-

perty claimed she is entitled to recover, as being part of that estate.

‘‘ The Defendant, Bamundoss Mookerjea, has laid claim to the Talook Rungliaut,

in Zillah Nuddea, and to certain indigo-factories in Zillahs Mymensingh, Rungpore,

and Dacca. The Talook he calls his own self-acquired property, and the factories

are said by him to have been erected since the death of Chunder Bosun, and a factory

in Zillah Nuddea is alleged to have been built by him (the Defendant) at his own

cost. It is admitted that the

Talook was pledged to the common ancestor, Mohadeb. It is nowhere stated, nor

is it in any way shown, that the pledge was rcdeemed. The Defendant states that

after Mohadeb’s death he paid the sum of Rs. 16 in addition, and got a bill of final

sale in his own favour for Rs. 316 on the 17th Assar, 1231. This Kubalah, or bill

of saie, is filed, but no witnesses have sworn to it. The Defendant caused his name

to be registered in the Collectorate in lieu of Mohadeb, on the 18th Srabun of that

year. Being manager for the family, this would be a matter of no difficulty; but

neither the Kubalah nor the registry is proof of self-acquisition. The estate origi-

[198]-nally was held in mortgage by Mohadeb, and the Court have repeatedly ruled

that proof of the specialty of self-acquisition is an OIZUIS which lies on the claimant

when a question of succession t o property, alleged on the other part to have belonged

to a family which is admitted to have been generally joint and undivided in estate,

arises between the heirs of a deceased ancestor. The Kubalah is not proved, and mere

registration in Ihe Collectorate is not sufficient to establish self-acquisition by the

Defendant. Neither is the evidence adduced by the Defendant, as regards the

indigo-factory a t Nuddea, E U C ~ as to prove that property his own. Two or three

witnesses have in general terms deposed that it belonged to the Defendant ; but their

evidence is weak and inconclusive. In regard to the remaining factories, the Defen-

dant has adduced no proof whatever, nor has he brought forward anything to dis-

prove the claim which Plaintiff has laid to certain tanks and gardens a t Beernuggur,

283

These pleas are by no means satisfactorily proved.

ViI NOORE IND. APP., 199 B A M U ~ ~ O ~ S ~ O O K ~ ~ E A 0, M ~ ~ ~ A ~ U T ~ A R ~ ~ ~ E 118 5 81

the famiIy residence. We are, therefore, of opinion that a decree must pass in

favour of P l a i n t i ~ for her h u ~ a n d ’ s hare of the abov~mentioned propert,y, as well

as for that which, it is admitted, descended from Mohadeb to his heirs, and was held

by the Defendant, Bamniidoss Mookerjea, as hc acknowledges, for the benefit of

his third son, Muthoornauth, alleged to have been adopted by the Plaintiff’s husband,

the late Chunder Bosun. In the plaint an allegation is made that the mesne profits

of the estate on the Plaintiffs share amount to Rs. 13,000 per annum. The Prin-

cipal Sudder Arneen records that the Plaintiff refused to take out an Ameen to

calculate the actus1 proceeds, and that the Defendant declined, under various pre-

tences, to furnish, for the period of his mana~ement, [I991 the papers requisite to

ascertain them? and he, therefore, rejected so much of Plaintiff’s claim. We are of

opinion that mesne profits must be awarded to Plaintiff f r m the date of her dis-

possession, that is, from the date of Mohadeb’s death, and that for the ascer ta in~ent

of their amount an Arneen must be deputed in ordinary course, The Defendant will

be called on to give up his accounts of the collections, and the Ameen will further

take the usual steps to fk the amou~it realized by him. The ~ l a i n t i ~ having been

debaireir from an earlier suit by minority, interest is awarded a t 6 per cent. on

each year’s mesne profits on the Plaintiff’s share of all the landed property claimed,

from the dste of Mohade~s death up to the date of suit, and at the rate of 12 per

cent. from that date to date of decree, and the same interest on the aggre~a te so

calculated up to the date of realization. Mesne profits and interest to be charged

to Bamundoss Mookerjes exclusively up to the date of Muthoornauth’s majority,

and to both h n u n d o s s Mookerjea and Muthoornauth from that date to realization,

It is to be here noticed that ~ U t ~ I o o r n a u t ~ i has been recently allowed, on declaratio~

of his majority, through his pleader in this Court, to appear as a joint party in the

course of the appeal proceedings. Plaintiff’s claim to certain gold and silver plate

is d~sallowed by the PrineipaI Sudder Ameen, who does not deem the evidence of the

four witnesses adduced worthy of credit, for the reasons stated in his judgment,

We see nu reason to interfere with this part of his decision. He has also rejected

so much of the plaint as lays claim to a share of Rs. 3,00,000 cssh and Rs. ~ , O O , O O O

outstand~ng balances ; on this point, likewise, d~scredi t~ng the same four witnesses.

The Plaintiff has sued speci-[2~]-fically for these amounts, and has failed to establish

any proof of their heing due. We

concur with the Principal Sudder Ameen, that no s u ~ c i e n t proof has been given of

these claims, and, therefore, as regards them, dismiss the suit before us. Under the

specialty of the case, in which we consider great wrong to have been done to the

Plaintiff by a party who comes forward as the guardian of the Plaintiff’s husband,

a minor, and in consideration of the large amount of mesne profits that must uii-

doubtedly have been collected, WB charge all the costs of this suit to Bamundoss

Mookerjea, and to Muthoornsuth, for whose benefit he acted, save those of the Defen-

dants, Doorga Pershad and 3ishen Pershad, who will, a8 having supported the

defence of Bamundoss Mookerjea, pap their own costs.” It was, therefore, ordered

that a decree pass in favour of Plaintiff, in amendment of the decision of the

Principal Sudder Ameen, as indicated above; that all the costs! of this Court in-

curred in both the causes, saTe the costs of Doorga Pershad ~ ~ k e r j e a and Kishen

Pershad Mookerjea, Defendants in the Zillah Court, be charged to Bamundoss Moo-

kerjea and Muthoornauth, according to the amount prepared by the Accountant of

costs of the Court, with interest thereof from the day of the decree to that of the

liquidation thereof.

From this decree the present appeal was brought.

Mr. R. Palmer, Q.C., Mr. Leith, and Mr. Maude, for the Appellant.---Two

questions arise; first, whether the evidence as to the Will of Chunder Bosun, and

of the adoption of the Appellant’s son, ~ u ~ o o r n a u t h , in pursuance t h e r ~ ~ 2 0 1 ~ - 0 ~ ,

justified the decree appealed f rorn ; and secondly, whether the Respondent, as widow of

Chunder Bosun, wm capable, in her character as widow, of bringing this suit, when

an express power was given to her by her deceased husband to adopt a son.

Upon the second ground, it is admitted by the Respondent in her plaint that her

deceased husband executed a deed of adoption authorizing her to adopt a son, and

of her intention to do so. Therefore, the f a ih re of the Appellan~ to prove that deed

to the sat~sfaction of the Court was immaterial, and the Respondent was estoppedt

as f a r as her rights as widow were concerned, from contesting the point, The

284

The suit was not for production of accounts.

BAMUNDORS MOOKERJEA zf. MUSSAMGT TARINEE cl8583 VII MOORE INR. UP., ws

Court below having inaisted on our producing this deed, which was not in our

custody, we submit that it was a miscarriage of justice, and that the cause ought to

be remitted to the Court below on that ground. Every probability is in favour of

the adoption, which is indispensably required by the Hindoo law. The ” Dattaka-

Mimamsa,” sec. i. cls. 2, 3, 6, 58, translated by Sutherland, pp. 2, 23. The widow

being incapable of performing sacrifice, a substitute is admitted for the performance

of that ceremony in the adopted son. The Mitacshara, ch. i. sec. xi., note to sec.

9, p. 308. The wife, in such a case, is but the agent, the mere instrument; the

primary author being the husband. The “ Dattaka-Mimamsa,” sec. i. cls. 19, 21,

22, translated by Sutherland, pp. 7, 8. The Court leans to the presumption in

favour of an adoption having been made, the spiritual welfare of the deceased

being depended upon it. H u r a d h w iMookurjia v. Mathoranath i2Zookwrjia (4

Moore’s Ind. App. Cases, 414). Then comes the important question (who i s to be

[202] adopted : the Hindoo law says from among kinsmen, connected by an oblation

of good in the first place. The “ D i t t a k ~ - ~ i ~ a m s a ~ sec. ii. cl. 2, translated by

Sutherland, p. 26; and a preference is to be given to a brother’s son. Strange’s

“ Hindu Law,” vol. i. p. 88 (2nd Edit.). W. Macnaghten’s “ Principles of Hindu

Law,” vol. i. p. 68. Everything is in favour then of our contention that the Re-

spondent adopted Muthoornauth under the power of adoption given her by Chunder

Bosun. The adoption was proved by the Purshita, or family priest, the medium

through which the boy to be adopted is, by Hindoo custom, solicited. Secondly,

after the admission that the Respondent was authorized to adopt a son, she was not,

we contend, entitled to bring a suit in her own name, claiming as a childless widow,

to be the deceased’s heiress a t law. She ought to have executed the solemn trust

and performed the obligations imposed upon her by adopting a son for the benefit

of her husband, and the suit should have been brought in such son’s name, to whom

she is, in fact, but a trustee. Dhurm Llas Pandey v. iCPussumt Soondri Bibiak

(3 Moore’s Ind. App. Cases, 229). An adopted son has all the rights of a posthumous

son, and a sale by a widow to his prejudice, even before adoption, is invalid.

Ramee K i s ~ e n ~ u n e e v. Raj& O o ~ ~ u ~ ~ t S i ~ g h . (3 Ben. Sud. Dew. Rep. 228). The

present case is distingu~shable from Soondur h’oomarea Debbeea v. G ~ ~ ~ ~ r Per-

shad Teiuarwe (ante, [? Moo. Ind. App.] p. 84): there the widow had exercised the

power of adoption, but the adopted son died a minor, and she sued in the two-fold

character of heiress of her deceased husband and of the adopted son.

[203] At the conclusion of the Appellant’s argument, the following observations

were made by

The Right, Hon. T. Pemberton Leigh.-On the first point their Lordships are

perfectly satisfied that the decision pronounced by the Court below is right; and

so far from being disposed to overturn the judgment of the Court upon that point,

even if the judgment had been the other way, they would have felt themselves bound

to have established it. An observation, however, is made by the Sudder Demanny

Court, that the Zillah Judge, with respect to two of the attesting witnesses, has

spoken of them from his own knowledge, as being what he calls “professional

witnesses,” persons of no character, and, therefore, entitled to no credit whatever.

He does not say that, as we understand him, from his own personal knowledge

of the parties, as being in the habit of conning before his Court. Now, the Judges

in the Sudder Dewanny Court have passed a severe censure upon the Zillali Judge,

for making that observation. Their Lordships think it right to say that in that

censure they do not a t all concur. It is of great importance that the Judge should

know the character of the parties, and it is of great advantage to the decision of the

case, that it i s heard by a Judge acquainted with the character of the parties

produced as witnesses, who is capable, therefore, of forming an opinion upon the

credit due to them. With these observations we do not think i t necessary to

trouble the Counsel for the Respondent at all upon this part of the case.

The other point discussed is a point of law, whether the widow, having a power

of adoption, destroys her right to sue in her individual character as widow, and

[2M] in truth, therefore, has barred herself from maintaining the suit in which

she has obtained a decree.

Mr. Wigram, Q.C., and Mr. W. Field, for the Respondent.-The question is

285

VI1 EQOBE m. APP., a06 ~ ~ ~ ~ ~ ~ 0 s ~ ~ O O K ~ R J E ~ ‘U. ~ U S S A ~ U T A ~ I ~ ~ ~ [l858]

now narrowed to the single point, whether the ~espondent, as the widow of Chunder

Bosun, is entitled to recover her husband’s share of the property; and that raises

the question, whether the devolution of the atate on her would be prevented by a

power of adoption being given, and the poss~b~lity of a third person coming into

existence prevent her taking her husband’s share in the family estates, Our conten-

tion is, that her h u s b a n ~ s estate passed to her as a childless widow and as his

heir. Keerut Sing v. Koolahul Sing (2 Moore’s Ind. App.

Cases, 331), Strange’s “ Hindu Law,” vol. i. p. 121 (2nd Edit.). W. Macnaghten’s

‘‘ Principles of Hindu Law,” vol. i. p. 19. With regard to her right to sue, there

being power given her to adopt a son, it i s exactly the case of a possibility of having

issue, the case in such circumstances resting on the analogy of a woman being

~ ? ~ ~ e i ~ ~ f ~ ; she would undou~tedly take on death of her husband, and receive the

rents and profits until the birth of 8 child. Again, the child in the womb might

never be born alive. But, in the meant~me7 and before the birth, who i s to take?

Who i s to sue during the intermediate time for trespass? Certainly the widow

on whom the estate devolves. These instances illustrate the great inconvenience

which would ensue if the estate was left in doubt. B great distinction exists when

the widow takes the interest under a deed giving her power to adopt, and under

Iter rights f20ij] by the Hindoo Law as widow of a childless man. In this case her

right to sue is as widow. Every case upon this point has been t~oroughly investi-

gated in the judgment of the Court below. They referred to, and relied upon,

the following cases:--Prun Yuth Rai v. Ruju Govkd Chudra Rai (5 Ben. Sud.

Dew. Rep. 37), Eumee Kishenmunee v. Rajah Oodwztnt Sing (3 Ben. Sud. Dew. Rep.

228), ~ u ~ ~ ~ s h e ~ S u r ~ h e ~ ~ Y. ~ ~ ~ s ~ ~ ~ t SrZ. Mutee Dibiu (3 Ben. Sud. Dew. Rep.

367), C h ~ ~ K o o ~ w ~ ~ ~ e Y. Sheo Rutnu ~~~~h (3 Ben. Sud. Dew, Rep. 275),

~ ~ ~ s s ~ ~ t ~ u , ~ S u ~ ~ ~ u C ~ o z t ~ ~ ~ n v. G o ~ u ~ n a ~ t ~ ~ ~~ 0~ ~~ (7 Ben. Sud, Dew, Rep. 143).

Mr. Leith, in reply.-First. By the Hindoo law a sister, IikeIy to produce male

issue, but not even begotten, s u r ~ i ~ i n g an only brother, is entitled to the succession,

and to enter possession until the production by her of male issue. Kislie.rt LocAalz

Bose v. !Pari& Dasi (5 Ben. Sud, Dew. Rep. 55). ~ ~ ~ ~ z s ~ ~ ~ ~ S o l u ~ ~ n u v. R u ~ ~ ~ ~ u l

P a d e (1 Ben. Sud. Dew. Rep, 324). Secondly. A widow, with power to adopt a

son, cannot sue in her own right. Ramee ~ ~ s ~ ~ ~ ~ u n e ~ v. 22uja-h O o d w ~ ~ ~ si^^^

(3 Ben. Sud. Dew. Rep. 228). ~ ~ ~ s u ~ ~ t S ~ b i ~ ~ ~ ~ C w ~ ~ v. ~~~u~~~~ Chozodq,~

(2’ Ben. Sud. Dew. Rep. 143). It is true that in the former case she claimed as heir

of her deceased son, and in the latter her claim was for the intended adopted son ;

but therJe cases establish that principle. The theory of the Hindoo law is, that

the moment permission is given to adopt, it has the same effect as if a child was in

the womb of the mother; and a boy subsequently adopted, as might be done in

this case, has all the rights of a post-[Z~~~-hu~nous son. ~ u r n ~ ~ s i ~ ~ ~ S ~ ~ ~ ~ e ~ €

v. i ~ u ~ s ~ ~ i ~ ~ t Sri The widow, therefore,

has no authority but that of intermediate ana age men^

She takes a life estate.

Bib& (3 Ben, Sud. Dew. Rep. 371).

The Right Hon. T. Pemberton Leigh.-Their Lordships do not entertain any

doubt upon this case; But as the question i s one of extreme general importance,

they were anxious to hear whether any serious objections could be made to the

judgment appealed from by Counsel so familiar with the Hindtoo law as is Mr.

Leith. But, on cons~aering this j u d ~ e n t , which is most able and elaborate, they

entirely agree in the principles laid down in it, and can add nothing to the clearness

and force of its reasoning. They have, therefore, simply to express their entire

concurrence in the judgment of the Sudder Court, both upon the question of law

and the question of fact, with the single qualification of that incidental observation

made upon the language of the Ziflah Judge in expressing his opinion with respect

to the two attesting witnesses. They will7 t;herefore, recommend Her Majesty to con-

firm the judgment pronounced by the Court below, with costs.

286