Patna High Court
Amarendea Man Singh, Bhramarbar Rai And ... vs Banamali Singh And Anr. on 29 January, 1930
Equivalent citations: 123IND. CAS.770, AIR 1930 PATNA 417
JUDGMENT Jwala Prasad, J.
1. This is an appeal by defendants Nos. 1 and 3 against the decision of the Subordinate Judge of Cuttack, dated the 30th November, 1925, decreeing the plaintiff's suit for succession to the Dompara Raj in Onega.
2. The following genealogy filed by Raja Raghunath Mansingh, grand-father of defendant No. 1 in suit No. 86 of 1867 and accepted by the Court below may be usefully reproduced here. It stops with Raghunath Mansing and Chintamoni Singh, father of the plaintiff. Therefore, the descendants are also added to the genealogy in order to show the relationship of the parties in the present litigation.
Raja JAGANNATH MANSINGH |
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| | | | |
Chandreasekhar Jalesar (Raja) Harichandan Krishna Chandra Jagdeb
(Raja) died issueless. | | Rai Pitam (died issue-
| | | less).
Purusottam | |
Mansingh | |
adopted son -------- --------------------
(became Raja | |
about 1796, died ---------------- |
30th September, | | |
1856). Gauranga Purusottam |
(died (adopted by |
issueless). Jalesar). |
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|
--------------------------------------------
| | | |
Madan Singh Braja (died Kishori Nagri Mohan
(predeceased issueless). Mansingh (died issueless).
Kishori). (Raja) died
| on 2nd De-
Chintamoni Singh cember,
| 1856
| |
| -----------------------------
| | |
| Raghunath Mansingh Nildari Singh
| (Raja) Bhramarbar Rai
| |
| Brajendra Mansingh
| (died on 26th December, 1903), leaving Rani Indumati, his widow de-
| | | fendant No. 3 giving her power
| Raja Bibhudandra Mansingh | to adopt by a registered deed
| (last male-holder) died on | (Ex. I) dated the 20th July, 1898.
| 10th December, 1922. |
| |
| |
| |
| Amarendra Mansingh (defendant
| No. 1) adopted by Rani Indumati
| on 18th December, 1922.
|
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| | | |
Dinabandhu Singh. Natabar Singh Banamali Singh Brindaban Singh,
(adopted to Banki). (Dead). (senior-most of the
nearest living
agnates after the
death of Bibhudendra).
3. The Dompara Raj also called Killa Dompara being one of the Killajat Mahals of Orissa is one of the Regulation Mahals of the District of Cuttack, bearing Tauzi No. 20 of the Cuttack Collectorate. It is an ancient impartible Estate held by one person for the time being, who is called the Raja of Dompara. After the death of the last holder, succession to the Raj devolves by the rule of primogeniture on the nearest of kin to the deceased Raja. Accordingly, after the death of Raja Purusottam Singh in 1856, Kishori Mansingh became Raja in preference to Chintamoni Singh, father of the plaintiff, inasmuch as Madan Singh, father of Chintamoni Singh and elder brother of Kishori Singh, had predeceased Purusottam. Kishori Singh died on 2nd December, 1856, shortly alter his succession. Chintamoni Singh, father of the plaintiff, disputed the right of Raghunath Singh, son of Raja Kishori Mansing, to succeed to the latter upon the ground that he was the preferential heir by the rule of lineal primogeniture being the son of Madan Singh, the elder brother of Kishori Mansingh. His contention was overruled by judgment (Ex. U) dated 30th November, 1867, and in which it was held that succession devolves by family custom a well as under the Mitakshara law upon the senior-most member of the nearest against relations and accordingly Kishori Mansing succeeded Purusottam in preference to Chin moni Singh and after him Raghunath Man sing succeeded. He in turn was succeed by his eon Brajendra Mansing, who did on 26th December, 1803, and next came son Bibhudendra Mansingh, the last holder of the Raj. He was a minor under the Court of Wards and died suddenly on the 10th December, 1922, by drowning in the rier Mahanadi at an age of 20 years and 6 months. His body was recovered on the 11th December, 1922, and was preserved in an oil vessel to be cremated, according to he family custom, under the orders of his successor to the Gaddi. Bibhudendera had left surviving him his mother, Rani Indumati, She had been authorised by her late husband, Raja Brajendra Mansingh, by an Anumatipatra (deed of authority to adopt), Ex. I, dated the 20th July, 1898, to adopt a son to him in case he had no son or the son born or adopted by him died. Accordingly, Rani Indumati obtained the sanction of the Court of Wards and on the 18th December, 1922, adopted Brojespratap Singh, defendant No. 1. At the time of adoption she changed the name of the adopted boy Brojespratap Singh into Amarendra Mansing giving him the family title of Bhramarbar Rai. The boy was given in adoption by his mother Srimati Krishnachandra Priya Debi, her husband Raja Sura Pratap Mahendra Bahadur being dead. On the same day she executed a deed (Ex. G-2) in proof of giving the boy in adoption and simultaneously Rani Indumati executed a deed of adoption (Ex. G-l/1), Both these deeds were amongst others attested by Banamali Singh.
4. On 23rd June, 1924, Banamali Singh instituted the present suit No. 41 of that year, disputing the validity of the adoption and claiming to have succeeded to the Dompara Raj as a rightful heir of the late Raja Bibhudendra Mansingh being the senior-most member amongst the nearest agnatic relations at the time the Raja died. He says that according to the family and tribal custom and usages obtaining from time immemorial, female members howsoever nearly related, are always excluded from inheritance and that on failure of direct lineal male descendants of legitimate birth of the last male holder the inheritance passes to the eldest male member among the nearest agnates of the late Raja, and accordingly, the plaintiff says that he succeed-d to the Estate of Bibhudendra on his eath on the 10th December, 1922, to the clusion of Rani Indumati, his mother, d that she in order to defeat the right of the plaintiff set up the defendant No. 1 as a of Brajendra by adoption under as authority alleged to have been given to her late husband, that the said authority is against the law and the family custom, even if it be deemed to be legal and valid at the time it was granted it became wholly inoperative and extinguished, as the late Raja Bibhudendra was the full owner of the Raj and died after attaining full age and full legal capacity to continue the line and that hence the adoption of defendant No. 1 on the 18th December, 1922, by Rani Indumati cannot divest the Estate which had already vested by inheritance on the 10th December, 1922, in the plaintiff. As to hie having attested the deeds of adoption (Exs. G-l and G-2), he says that he signed them under undue influence, inducement, fraud and misrepresentation caused by Indumati and the lawyers who were present at the time the deeds were executed and registered. He says that he was living in his village Talbasta at a distance of six miles away from the Raja's place, a dense forest intervening, when he heard of the sudden death of Raja Bibhudendra and that on the 17th December, 1922, he received a special message from Rani Indumati informing him that the dead body was found and that his presence was necessary at the time of funeral; accordingly he hurried to the Rani's place and reached there at about 11 a. m. on the 18th December, 1922, when the adoption was over and was suddenly called upon to sign the deeds which he did in ignorance of his rights and without having been given an opportunity to know the contents thereof and on being given to understand that his rights would not be affected. He says that the adoption was invalid ab initio and would not in any way affect his right and title to the Raj which had already vested in him on the death of Bibhudendra; that the said adoption or the deeds in question do not confer upon the defendant No. 1 the right and status of an heir to Bibhudendra; that soon after the adoption he applied to the Board of Revenue representing the Court of Wards claiming the Raj and got a reply that it would be retained by the Court of Wards till the dispute regarding the heirship was finally determined by competent Civil Court; that thereafter on the 15th January, 1923, he applied to the Collector of Cuttack for registration of his name under the Land Registration Act (Act VII of 1876) and that subsequently the defendants also applied for registration of their names under Section 55 of the Act. The matter was referred to the Civil Court which by its order, dated the 4th February, 1924, summarily disposed of it against the plaintiff. Hence the present suit.
5. The principal relief claimed by the plaintiff is that it be declared that he is the rightful heir of the late Bibhudendra Mansingh, the last male holder of the Dompara Raj, and that as such he succeeded to the disputed Estate as full owner since his death on the 10th December, 1922, and that the alleged adoption of defendant No. 1 is invalid, inoperative and does not in any way affect the vested right of the plaintiff and that he acquired no right to the Raj by his adoption. The plaintiff further asks for confirmation of his possession and for recovery of possession of the Dompara Raj in, case he be found to be out of possession.
6. The plaintiff impleaded the adopted boy as defendant No. 1 and his adoptive mother Rani Indumati as defendant No. 3. The defendant No. 2 was made a party because he claimed to be the son of Raja Brajendra Mansingh by a phulbebahi wife and to be entitled to succeed to the Raj on the death of Bibhudendra. He instituted a separate suit (No. 1 of 1924) which was tried together with the present suit (No. 41 of 1924), from which this appeal has arisen. His suit was dismissed. As a defendant in the present suit he re-asserted his claim to the Raj, but the learned Subordinate Judge decided against him, holding that he failed to establish that Raja Brajendra Mansingh ever married his mother Kanak Chhamua in a pulbebahi form. He has not appealed against the decision in that case, nor against the decision in the present case. His claim to the Dompara Raj is thus set at rest.
7. The defence of defendants Nos. 1 and 3 is practically the same though they filed separate written statements. They deny that there is any family or tribal custom by which female members are excluded from inheritance and assert that upon the death of Bibhudendra if the Estate vested in any one it vested in Rani Indumati as his mother and heir, and that as Bibhudendra died unmarried while still a minor and not having attained full capacity to continue the line Rani Indumati adopted defendant No. 1 under the authority and in accordance with the directions given by her husband and with the approval of the proper authorities and in the presence of the plaintiff and many respectable people; that if by the adoption she divested anybody she divested only herself and that the plaintiff is estopped from denying the validity of the adoption or the right of the adopted boy to succeed, he having taken part in the adoption and signed the two deeds of adoption referred to above.
8. Upon the pleadings in the case the learned Subordinate Judge framed a number of issues. We are in this appeal not concerned with most of them. The fact that defendant No. 1 was adopted by Rani Indumati on the 18th December, 1922, under the authority given to her by her husband by an Anumatipatra (Ex. 1), dated the 20th \ July, 1898, is not now disputed nor is it disputed that the plaintiff is the nearest living agnate of late Raja Bibhudendra. The only question for determination in this appeal, therefore, is as to whether the plaintiff or the defendant No. 1 is entitled to succeed to Bibhudendra, the last holder of the Raj. In order to determine this question it is essential to find out whether Rani Indumati was excluded from succession to her son Bibhudendra.
9. The plaintiff in para. 3 of the plaint says that " according to the special family and tribal custom female members, howsoever nearly related, are always excluded from inheritance." This is denied by the defendants (para. 5 of the written [statement of defendant No. 1). The learned Subordinate Judge has found in favour of the plaintiff and against the defendants and has held that females are excluded from succession in the Dompara Raj. He has come to this conclusion by referring to (1) the incidents of the Dompara Raj; (1825) Sel. Rep. of the S.D.A. 49 the customs of descent and succession relating to the Dompara Raj as recorded in the Pachchis Sawal' in 1814; and (3) the oral evidence adduced in the case. As to the first, namely, the incidents of the Dompara Raj, he has referred to Mr. Sterling's Book on Orissa, first published in 1822: W. W. Hunter's Orissa, Vol. II (1872); The Maddox Settlement Report; and the opinion of Sir Charles E. Trevelyan, dated the 8th November, 1859, referred to in VII Moore's Indian Appeals at pages 542-43, Relying on the conclusions of Sterling, Hunter and Maddox the learned Subordinate Judge finds that the holder of Dompara occupied the position of a feudal chief among those that occupied the hills and the sea coast in Orissa and lived in Killas and Garhs as military retainers under the independent sovereign) of Orissa in the Twelfth Century, for the purpose of repelling the attacks of aborig nal savages and that they continued occupy the same position when the Afghan conquered Orissa in 1567-68 and also when subsequently Emperor Akbar conquered it and when the settlement of it was made by Raja Todar Mal and Raja Mansingh under Akbar in 1591. The Estate of Dompara in Cuttack is mentioned as being one of the territories which was settled with Raja Ramchandra Deo by Rajs Mansingh. According to Maddox (Settlement Report, Vol. I, page 420) the Maharattas did not resume Dompara although they resumed some other estates which were left in the Rajwara in the settlement of Raja Mansing in 1591 in the time of Emperor Akbar. The British Government conquerred Orissa which was under the direct possession of the Maharattas in October. 1803, and Dompara passed to the British Government by this conquest. After this conquest the Bhongla King of Nagpur ceded the tributary estates of Orissa by already to the British Government. Thus the British Government came into possession of the tributary estates of Orissa as well as the estates including Dompara which they had conquerred in 1803, and it divided all these into two groups. The first group formed the tributary estates and the second group formed the Killajat estates in the Regulation Mahals. Dompara thus came to belong to the Killajat estates. In 1828 Dompara was restored to the position of a permanently settled zemindary.
10. Upon this historical account the learned Subordinate Judge finds that the Dompara Raj was a feudal chiefship. He then refers to the following opinion of Sir Charles E. Trevelyan, dated the 8th November, 1859, referred to in Secretary of State v. Kamachee Boye Sahaba 7 M.I.A. 476 at. pp. 542 and 543 : 13 Moo.P.C. 227 W.R. (Eng.) 722 : 4 W.R.P.C. 42 : 1 Suth. P.C.J. 73 : 1 Sar.P.C.J. 684 : 19 E.R. 388 "My first twelve years of public service were passed in the Indian Diplomatic Department and I have as extensive a knowledge of the customs and practice of native Chiefs as most people. I mention this as my justification for offering a confident opinion that the succession of females forms no part of the constitution of Native States and Chiefships. It may occasionally have taken place as in the instance of Holker's widow Arahalaya Bai and the Begum of Sumroo, but the special nature of the circumstances in those cases shows that it was a deviation from an established rule. No well-informed and impartial nature would maintain the right of succession of a female to a Hindu Raj". The learned Subordinate Judge says "that being so, there is no shadow of doubt that the males were excluded from succession when Dompara was a feudal chiefship" He then refers to Regulation XI of 1793 read with Regulation X of 1800 and Regulation XII of 1805 in order to show that the fact that Dompara was made into a permanently settled zemindary by the British Raj in 1829 as one of the Killajat Estates in the Regulation Mahals "in no way operated to destroy the family custom, namely the exclusion of females from succession", which obtained in the Raj when it occupied the status of feudal chiefship.
11. Undoubtedly the Dompara Raj is an ancient impartible estate coming down from the Hindu period. In fact there were no less than twenty-three Rajas as shewn in the genealogical table attached to the plaint of 1867 (Ex. 22) before Raja Purusottam succeeded to the Gaddi about 1796. Yet the historical account given by the learned Subordinate Judge is not conclusive to show the family custom of female exclusion from succession obtaining in the Dompara Raj. Though the accounts given by Sterling, Maddex and later by Toynbee as well as the opinion of Sir Charles E. Trevelyan are valuable, they do not refer to the custom of female exclusion from succession to the Dompara Raj. They may, however, be referred to as being not inconsistent with the custom if otherwise legally proved and in that way they are valuable. The learned Subordinate Judge has overestimated, in the passage from his judgment quoted above, their value and has assumed that there was an incident of female exclusion in the Dompara Raj. In fact, the Government itself after it came into possession of Orissa was anxious to obtain information about the customs of succession, inheritance and marriage in respect of the two kinds of ancient impartible estates namely, the tributary estates, and the Killajat estates, and accordingly the Superintendent of these Mahals in Orissa, in 1814, addressed 25 questions called 'Pachchis Sawal' to the Rajas of the Tributary or Garhjat Estates and the Killajat Estates. These questions were put in persian and were subsequently printed in a book form by the Government with their translation in English. Part I relates to the Garhjat Estates and Part II to the Killajat Estates.
12. The 'Pachchis Sawal' has been considered as a record of great authority ever since it was prepared up to the present time for the purpose of proving customs of descent in respect of the estates referred to in that document: Vide Raja Sham Soonder Muhunder v. Kishen Chunder Bhowurbur Rai (1825) Sel. Rep. of the S.D.A. 49, Gopal Prosad Bhakat v. Raghunath Deb 32 C. 158 : 9 C.W.N. 330 Broja Sundar Deb v. Swarna Manjeri Dei 47 Ind. Cas. 36 : 22 C.W.N. 433 : (1918) M.W.N. 313 (P.C.). In the last case the High Court observed that on the matters with which it deals the 'Pacnchis Sawal' is a work of undisputed authority and this view was not dissented from by their Lordships of the Judicial Committee, Also vide, Raja Janardhan Ummur Singh Mahandur v. Obhay Singh (1835)6 Sel. Rep of the S.D.A. 49--a case in the Dhenkanal family--a Garhjat estate from which the adopted boy in the present case comes. Referring to the 'Pachchis Sawal' the learned Judges in the case of Nittanund Murdiraj v. Sree Kurun Juggernath Bewartah Patnaick 3 W.R. 116 accepted it as conclusive proof as to the custom of descent in the case of the Raja Attgurh, one of the tributary Mahals of Cuttack, and observed as follows: "The fact that such evidence was taken does not, in our opinion, in any manner impugn the authority of that document. No single case referred to has been shown to be inconsistent with it. Its authority has been recognised in every case and the independent evidence of usage appears in every case to be entirely consistent with it. The attempt to impeach the authority of the 'Pachchis Sawal' has utterly failed".
13. Besides, the parties in this case admit the authority of the 'Pachchis Sawal' as recording customs of succession governing the family: vide, the plaint (Para. 2) and the written statement of defendant No. 1 (para. 4). The 'Pachchis Sawal' was referred to and acted upon as recording custom of succession in the Dompara Raj in the judgment between Chintamoni and Raghunath (Ex. U).
14. Now let us consider if the Pachchis Sawal excludes females from succession, particularly if the mother of Bibhudendra the last male-holder of the Raj would be excluded by the plaintiff Banamali, who is grandson of Madan Singh the brother of Kishori Mansingh, who was great-grandfather of Bibhudendra, Reference has been made at the Bar to questions and answers 12 to 15 in the 'Pachchis Sawal'.
15. Question 12 runs as follows:
if at his demise a Rajah leave a son, (8) born of a concubine, but not born of either his Phool Beebahees or slave girls, and neither brother, nor brother's son, nor Pat Ranee, nor daughter by a Pat Ranee, whose, in this case, would be the succession?
16. The answer given by Dompara is as follows:
If on the demise of a Rajah there should be none of the heirs named in the question, but a son born of a concubine, the latter might succeed if no brother (brethren) "bradran juddi Rajah muttawaffi" connected in the late Rajah's grandfather, (Pita Moho) were alive.
17. The question assumes the existence of a son born of a concubine and the non-existence of eons born of a Phool Beebahee or slave girls, a brother or brother's son, Pat Ranee or daughter by a Pat Ranee. It does not mention existence or otherwise of bradran juddi of the deceased Rajah (that is, the late: Rajah's grandfather's brethern). The answer wants to make it clear and emphatic that the son of a concubine would succeed: only if the Rajah dies without leaving bradran juddi and would not succeed' if anyone of the bradran juddi is in existence at the demise of the Raja; but the contentious words in the answer are "If there be none of the heirs named in the question " The appellants contend that the word "heirs" or "warisan" in Persian implies that the persons named in the question, notably the Pat Ranee or daughter by a Pat Ranee, are heirs and that hence females are not absolutely excluded from succession.
18. The next question No. 15 refers to the case of Pat Ranee and daughter by a Pat Ranee. The question is:
At the death of a Rajah, suppose he leave a brother, a nephew, a Pat Ranee, and a daughter by the Pat Ranee, who would succeed?
19. The answer is:
The brother would be the rightful claimant of the Raj.
20. Thus the Pat Ranee and her daughter are excluded by a brother or brother's son.
21. The next question No. 14 is as follows:
At his death suppose a Rajah leave neither brother nor nephew, but that his Pat Ranee survive, and he leave (a) legitimate daughter by another Ranee, who would, in such a case, succeed?
22. The answer is:
The nearest of kin among the brothers of the Rajah's grandfather, (Pita-Moho Judd) would in such case succeed.
23. The words in the Persian answer are:
Az bradran i juddi Rajah muttawaffi har keh bakarabat-i karib tar bashad mustahaq rajgi ast.
24. By the answer the Ranees and the Pat Ranee would be excluded by the kinsmen connected through the grandfather of the Raja.
25. By question and Answer No. 15 the other Ranees and their daughters would also be excluded by bradran juddi, that is kinsmen connected with the Raja through his grandfather.
26. Questions 13 to 15 explain the meaning of Question 12.
27. The result is that according to the answers given by the Rajas the Ranees whether Pat Ranee or others and their daughters would be excluded by a brother, a nephew and the nearest of the kinsmen among the bradran of the Raja's grandfather.
28. By questions and answers 22 and 23 a son adopted by the Raja or the Ranee with the authority of her husband would succeed in preference to his brother, nephew, Pat Ranee and other Raneee.
29. The plaintiff urged that under the aforesaid customs recorded in the 'Pachchis Sawal' females are altogether excluded from succession to the Gaddi. On this point the learned Subordinate Judge writes "the defendants Nos. 1 and 2 on the other hand, assert that females are not totally excluded from inheritance under the custom embodied in the '.Pachchis Sawal' but their succession to the Gaddi is postponed in. preference to certain other heirs under the said custom". Thus, the defendants contend that although brothers, nephews, (brother's sons) and the bradran of the Raja's grandfather ''bradran juddi" would exclude the widows and the daughters of the Raja, a descendant of the brother of the great-grandfather of the Raja would not exclude the Rani and the daughters of the late Raja.
30. The plaintiff contends that the words "bradran juddi" are wide enough to include descendants of the grandfather and upwards. As to the meaning of the Persian, expression "bradran i juddi" occurring in the 'Pachchis Sawal' in Persian or the Sanskrit equivalent thereof "Pita Moho Samparkeyti," or "Pita Moho Sambandhiya," occurring in the original Oriya translation of Answers to Questions Nos. 12,14 and 15 (the word "Pita Moho" as equivalent?) to "juddi" has been mentioned in the English Translation of Answers to Questions 12 and (4) both parties have given evidence, particularly of experts in Persian and in Sanskrit.
31. The plaintiff's witnesses Madhusudan Das No. 5 and Sadashiva Misra Mahamahopadhyaya No 8 say that the word "Pita Moho" means grandfather and upwards and the words 'Pita Moho Samparkeya' and 'Pita Moho Sambandhiya'' mean bradran related to the grandfather and upwards. Defendants' witness No. 12 Kashi Nath Das, on the other hand, says that the aforesaid words denote brothers connected through the paternal grandfather, and not upwards. In cross-examination he says that the word 'Pita Moho' used in sloka No. 102. Chapter XII in Mahanirvan Tantram', means grandfather and upwards. He further says that "the first cousin of 'Pita Moho' is related through the Pita Moho." The words "Pita Moho Samparka or Sambandha" indicate the relation of or as a grandfather. The words 'Pita Moho Samparkiya or Sambandhiya bhratmane' mean "brother or cousin related through the grandfather". This would bring the plaintiff's father Chintatnoni, the first cousin of Bibhudendra's grandfather, Raja Raghunath, within the aforesaid expression used in the Oriya translation of questions Nos. 12, 14 and 15 of the 'Pachchis Sawal'
32. Witness Sadashiva Misra Mahamahopadhyaya (P. W. No. 8) says; "the word bhratmane occurring in the said answer signifies brothers and cousins however remote" This would bring the plaintiff within the meaning of the aforesaid expressions as being entitled to succeed to Bibhudendra in preference to his wives and daughters if any.
33. Now as to the Persian expression "brad-ran juddi" plaintiff's witness Maulavi Mohammad Mohsin (No. 8) and Maulavi Abdul Qadir (No. 1) say that it means bradran or relations connected with the deceased through his grandfather or ancestor upwards. According to them 'juddi' means "grandfather and upwards" and 'juddi' in the Adjectival form denotes "in the line of the grandfather", that is, "connected with the grandfather or related to grandfather and the answer to the Questions must accordingly denote "the nearest among the brothers or relations connected through the Raja's grandfather or ancestor,"
34. The defendants witnesses Mr. Ahmed No. 10 and Mr. Muhammad Latif No. 11 dispute this interpretation and would restrict the meaning of the word juddi to grandfather, and 'bradran juddi according to them would mean brethren or kinsmen descended from grandfather and not from above him. Mr. Ahmed says that the word 'judd' primarily means father's father, but it may be used figuratively to mean "father's father and upwards". In that sense he says in cross-examination that Fallon in his Dictionary has given the meaning of the word 'judd' as "ancestor". Mr. Latif in cross-examination says "bradar means uterine brother, 'bradran' means uterine brothers as well as karabatdars; and the words 'bradran' juddi' (used in the answers) mean brothers of the father's father as well as other relations.
35. According to the extended meaning of the word 'bradran' as distinguished from the word 'bradarn (singular) and the meaning of the word 'judd' as an ancestor given in Fallon's Dictionary, the plaintiff Banamali would be the nearest of kin among the brethren of the Raja's grandfather. In the case of Nittanund, Murdiraj v. Srtekurun Juggernath Bewartah Patnaick 3 W.R.116 already referred to referring to the questions 10 and 12 of the Garhjat Estates and question 12 of the Killajat Estates their Lordships translate the words 'bradran juddi' as "the brethren of the grandfather", that is, "brethren connected with the late Raja's grandfather'. This would bring the plaintiff Banamli within the expression 'bradran juddi as being one of the brethren connected with the late Raja's grandfather. The learned Subordinate Judge has held that he "comes within the expression 'bradran juddi of Bibhudendra, the last full owner of Dompara Raj, also according to the answer given by the Rajas in 1814 to the 'Pachchis Sawal. "He says that the nearest sapindus of the paternal grandfather are his kinsmen and those sapindas are his father, paternal grandfather and paternal great-grandfather. "That being so" says the learned Subordinate Judge, the descendants of the father, paternal grandfather and paternal great-grandfather of the paternal grandfather of the ex-Raja are, in my opinion, covered by the expression 'bradran juddi' used in the answers to the question of 'Pachchis Sawal' by the then Rajas of the Killajat and Garhjat Estates in 18l4."
36. Be that as it may, upon the plain meaning of the words 'bradran juddi' and restricting the meaning of the word juddi' as related to grandfather, the plaintiff's father Chintamoni was one of the bradran of the plaintiff's grandfather Raja Raghunath. The plaintiff is one of the bradran of Bibhudeadra's father. The word 'bradran' is not restricted to the relations of the same degree but as shewn from the opinion of the experts examined on behalf of the defendants it also includes descendants of those on equal degree. Thus the plaintiff is one of the bradran juddi of Bibhudendra. He would, therefore, exclude the Ranis and daughters of Bibhudendra if any according to the Pachchis Sawal. These questions 12 to 15 to my mind purport to elicit information as to whether females do or do not succeed to the Raj and the strongest case is put in the questions as to whether the Pat Rani or other Ranis and their daughters who survive the Raja would succeed in preference to very distant agnates, such as, a kinsman connected not only through the father but also through the grandfather or any other ancestor of the Raja. No doubt, as direct question was not put as to whether females are excluded or not altogether from succession. But that was apparently the reason of the questions Nos. 14 and 15 and the answers given purport to convey the meaning that females are excluded. The learned Subordinate Judge has under-estimated the import of these questions and answers when he says that "they are ambiguous" or that as 'regards the exclusion of females from succession the matter has been left in doubt." He is, however, right in his view that the plaintiff Banamali comes within the expression 'Bradran Juddi' of Bibhudendra, the last full owner, and that by the fact that the Ranis and the daughters are excluded, mothers and sisters are equally excluded being more remote than the Ranis and the daughters.
37. The defendants wanted to get over the custom recorded in the "Pachchis Sawal" by contending that the females are not altogether excluded but that their succession is only postponed in preference to certain other heirs under the custom recorded in the 'Pachchis Sawal'. If the view taken by me of the 'Pachchis Sawal' be correct, the matter is concluded as the custom recorded therein regarding the exclusion of females from succession is binding upon the Garhjat and the Killajat Estates and no other evidence is necessary. The 'Pachchis Sawal' has a binding effect and is conclusive and stands on a higher footing than the inferences to be drawn from the historical account of the nature of the Raj given by Sterling, Hunter, Maddox and Toynbee.
38. There is, however, evidence given by the plaintiff in support of his contention that females are excluded from succession to' the Dompara Raj.
39. [His Lordship referred to this evidence and continued as follows: ] The plaintiff's witnesses, notably witnesses, Jagatbandu Das No. 1 and Ramchandra Dhal No. 7, are competent to depose to the custom of female exclusion. Both these witnesses have been admitted by Mr. Balgobind Kanoongo to be respectable and the leading men of Dompara. The latter is an agnate of the Dompara Raj and the former has been the Peshkar in the Raj for a long time notably during the time of Raja Raghunath grandfather of Bibhudendra. He speaks from his personal knowledge of the time when Purusottam was the Raja and his adoptive mother was excluded from succession when Kishori succeeded in 1856 when he must have been about 13 years. It has not been shown by the defendants that the instance of Purusottam's adoptive mother having been excluded is incorrect. None of the witnesses says that Purusottam's adoptive mother was dead at the time. Ramchandra Dhal, witness No. 7, gives an instance of the Khandpara Raj of the widow of Raja Natabar being excluded from succession and generally says that in the Garhjat and the Killajat Estates no female ever succeeds. Khandpara is a Killajat Estate whose custom is also recorded in the Pachchis Sawal The instance given by Rani Krishnachandra Priya Debya of a female succession in Bastor family in the Central Provinces is not relevant for the purpose of disproving female exclusion from succession to the Dompara Raj. There is no reason why the evidence of the plaintiff on the point should not be accepted when the learned subordinate Judge has accepted it. Therefore, though the onus of proving female exclusion from succession in an impartible estate was upon the plaintiff, he has discharged it by the evidence given by him which relates both to the family and the tribal custom. Learned Counsel on behalf of the respondents relies upon the recent decision of the Judicial Committee in Ahmad Khan v. Channi Bibi 91 Ind. Cas. 455 : 6 Lah. 502 : A.I.R. 1925 P.C. 267 : L.R. 6 A.(P.C.) 190 : 3 C.W.N. 93 : 52 I.A. 379 : 30 C.W.N. 506 : 50 M.L.J. 637 (P.C.). That relates to a custom of exclusion of a sister or daughter in favour of collaterals in respect of ancestral property and the custom there set up was that of an agricultural tribe in the Punjab called the Khattar, and it was held that such a custom could be proved by general evidence given by members of the family or tribe without proof of special instances. But applying even the stricter standard of proof of custom it is amply proved by the evidence referred to above that females are excluded from succession to the Dompara Raj and two instances one of Dompara and another from Khandpnxa, a similar Raj, have also been given. What evidence will be required to prove such a custom depends upon the circumstances of each case. The genealogy of the family given in the suit of 1867 by both the parties (Exs. P and 22) would shew that many instances could not be had for mostly the Rajas were succeeded by their own sons and in very few instances by collaterals. According to the evidence Raja Purusottam died issueless in 1856 and his adoptive, mother was excluded from succession by Kishori. If there was no custom of exclusion of females, there is no reason and in fact none has been suggested for her non-succession or for her abandoning her right in favour of a distant collateral Kishori two degrees removed from Purusottam. Thus even if the 'Pachchis Sawal' is not conclusive to prove exclusion of females from succession the evidence in the case establishes such a custom. The result is that Rani Indumati, mother of Raja Bibhudendra was debarred by custom from succeeding to the Raj, and upon the death of Raja Bibhudendra on the 10th December, 1922, the estate did not vest in her and she did not succeed to the Raj.
40. The result will be the same whether the Dompara Raj was held by Bibhudendra exclusively as a separate property without any co-parcener or whether it was a joint impartible estate with the plaintiff and his junior brother Brindaban Singh, the two surviving members of the family as co-parcerners. If it was a joint impartible estate, it was held by Raja Bibhudendra according to the custom by which such an estate is held by a single member. It is true that Banamali and Brindaban, the other members of the joint family, had no present right to succeed or any right to demand partition or to control the dealings of the estate by Bibhudendra. They did not acquire any right by birth as in an ordinary joint Mitakshara family but had spes successionis and upon the death of Raja Bibhudendra the estate would devolve upon Banamali, the senior-most collateral by survivorship under the Mitakshara law which admittedly governs the family. The mother of Raja Bhibudendra or any other female would then be excluded under the Mitakdhara law with-out any proof of custom and it is for the defendants to set up and prove a custom of female succession to a joint impartible estate to the exclusion of the collateral co-parceners such as the plaintiff. Such a custom was not set up in the written statement and no evidence was adduced to prove it. The 'Pachchis Sawal' does not refer to it. In order to explain the custom of exclusion of the Pat Ranee and the other Ranees in favour of 'bradran juddi' or distant collaterals recorded in the Pachchis Sawal' the defendants stated in the Court below as observed above, that females are not totally excluded from succession under the custom recorded in the 'Pachchis Sawal', but that their succession is postponed in preference to certain other heirs referred to therein. If the Raj is a joint impartible estate and this statement of the defendants implies setting up a custom of succession of females, particularly the mother of the late Raja in preference to a distant collateral it should have been clearly set up in the written statement and established by evidence. Such evidence is conspicuous by its absence. Therefore, if the Raj was a joint impartible estate with the plaintiff and his brother as co-parceners therein, Rani Indumati, mother of late Raja Bibhudendra, would be excluded under the ordinary law of Mitakshara and the plaintiff is not required to prove the custom of exclusion of females from succession either by a reference to the 'Pachchis Sawal' or any other evidence. Whether the Raj was a joint impartible estate or a separate estate held by Raja Bibhudendra without any co parcener, the parties have not expressly stated in the pleadings and no issue was raised nor was any evidence given and the judgment does not refer to it. The point, however became the subject of great discussion before us by Counsel on both sides. Therefore, this question as well as the rights of the parties have to be dealt with from both points of view.
41. Mr. Hasan Imam for the appellants contended that in the plaint as well as in the evidence the plaintiff sets up a case of the Dompara Raj being a separate estate held exclusively by Raja Bibhudendra without any co-parcener. He referred to para. 3 of the plaint which says " that according to family and tribal custom female members howsoever nearly related are always excluded from inheritance." In para. 11 where it is stated "the adoption of defendant No. 1 on 18th December, 1922, by Rani Indumati cannot divest the estate which had already vested on 10th December 1922 by inheritance in the plaintiff, the nearest collateral heir of the last male holder the late Bibhudendra Mansingh", which was reiterated verbatim in para. 12. Paragraphs Nos. 6 and 7 refer to Kishori Mansingh as having succeeded to Purusottam Man Singh as his "Preferential heir" and para. 7 where the plaintiff says he is the rightful heir to the estate. Reference is also made to plaintiff Banamali Singh's evidence In chief he said "Madan and Kishori were separate before Kishori got the Raj" In cross-examination this was challenged and the plaintiff stated "I have heard that the mother of Purusottam severed her son from my ancestors".
42. The defendants in the written statement denied that on the death of Raja Bibhudendra the estate vested in the plaintiff and stated that "conceding though not admitting that on the death of Bibhudendra the disputed properties vested in anybody, they vested in Rani Indumati as mother and heir of Bibhudendra and if by the adoption she divested anybody, she divested herself (para. 15)". It would thus appear that the case of both parties in the Court below was that the Dompara Raj was a separate impartible estate held by Raja Bibhudendra and that it was not a joint impartible estate and the learned subordinate Judge has treated it as such as will appear from the manner in which he dealt with the question of vesting and divesting the estate by the adoption made by Rani Indumati.
43. Mr. Sen, however, contended before us that the case made in the plaint and in the evidence was not of a separate impartible estate and that it was open to him to contend that it was a joint impartible estate and he says that the expressions used in the plaint referred to above would apply to a joint impartible estate as succession to such an estate is always by inheritance unlike an ordinary partible joint estate where the succession is by survivorship Therefore, he says that the statements in the plaint are not inconsistent with the case of a joint impartible estate. He has, however, not been able to explain satisfactorily the statement made by the plaintiff Banamali Singh towards the end of his examination in-chief that 'Madan and Kishori were separate before Kishori got to Raj", and in cross- examination "I have heard that the mother of Pursottam severed her son from my ancestors (Madan and Kishori)". What else could be the object of these statements except to prove separation of Madan and Kishori from Raja Purusottam. This was evidently with a view to show that Purusottam's mother would have succeeded to the Raj after the death of Purusottam but that she did not do so on account of there being the custom of female exclusion. The learned Advocate who examined the plaintiff Banatnali Singh in the Court below ultimately intimated to the Court through his Counsel that this was the object with which he put the question in chief and got the answer that Madan and Kishori were separate before Kishori got the Raj. A plain reading of the pleadings gives the same impression that the parties treated the Raj as a separate estate in the hands of Raja Bibhudendra Be that as it may, the mother of Bibhudendra would be excluded from succession whether the Raj was. a joint or separate impartible estate, in the former case inasmuch as the custom of female exclusion has been established by the evidence in the case and in the latter case under the law females would be excluded from succession to a joint estate. Thus, in any case Rani Indumati did not succeed to the Raj after the death of her son Raja Bibhudendra and the estate did not vest in her. Raja Bibhudendra died on the 10th December, 1922, and the adoption took place on the 18th December, 1922. Therefore at the time when succession opened the adopted boy was not in existence and the estate vested in Banamali irrespective of whether it was a joint or separate impartible estate, as a Hindu estate cannot remain in abeyance.
44. The question then is whether the adopted boy would divest the estate which had devolved upon the plaintiff by reason of his subsequent adoption by Rani Indumati, If she had been the heir of her son late Raja Bibhudandra, the adopted boy would have been entitled to succeed as she only would have been divested and no one lese. This is settled by authorities : Vide Verabhai v. Bai Hiraba 27 B. 492 at p 499 : 30 I.A. 234 : 5 Bom.L.R. 534 : 7 C.W.N. 716 : 8 Sar.P.C.J. 508 (P.C.), Rajah Vellanki Venkata Krishna Row v. Venkata Kama Lakshminarasayya 1 M. 174 : 4 I.A 1 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 9 Suth. P.C.J. 353 (P.C.), Gaudappa v. Girimallappa 19 B. 331, Payapa v. Appanna 23 B. 327 Mallappa Bhaumappa v. Hanmappa Mardeppa 55 Ind. Cas. 814 : 44 B. 297 : 28 Bom.L.R. 203, Venkappa v. Jivaji Krishna 25 B. 306 : 2 Bom.L.R. 1101. Tripuramba v. Venkataratnam 72 Ind. Cas. 278 : 46 M. 423 : 44 M.L.J. 349 : A.I.R. 1923 Mad. 517 and Mondakini Dasi v. Adinath Dey 18 C. 69. But in the present case the estate devolved not upon her on the death of Bibhudendra but upon the plaintiff. The subsequent adoption by her would not divest the estate vested in the plaintiff; Vide Bhoobun Moyee Debia v. Ram Kishore Acharji Chowdhri 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth.P.C.J. 574 : 2 Sar.P.C.J. 111 : 19 E.R. 978, Padmakumari Debt v. Court of Wards 8 C. 302 : 8 I.A. 229 : 4 Sar.P.C.J. 285 : 6 Ind. Jur. 148 (P.C.), Thayammal v. Venkatarama 10 M. 205 : 141. A. 67 : 11 Ind. Jur. 271 : 5 Sar. P.C.J. 10(P.C.), Manikayamala Bose v. Nanda Kumar Bose 33 C. 1306 : 4 C.L.J. 357 : 11 C.W.N. 12, Bhubaneswari Debi v. Nilcomul Lahiri 12 C. 18 : 121. A. 137 : 4 Sar. P.C.J. 651 (P.C.), Harek Chand Babu v. Bejoy Chand Mahatab 2 C.L.J. 87 : 9 C.W.N. 795, Ramkrishna v. Shamrao 26 B. 526 : 4 Bom.L.R. 315, Mondakint Dasi v. Adinath Dey 18 C. 69, Faisuddin Ali Khan v. Tincowri Saha 22 C. 565, These are cases relating to an adoption by a widow to her husband who died separate from his agnates and had a separate estate. Therefore, if the Dampara Raj was a separate estate of Bibhudendra, the adoption by his mother after the estate had vested in the plaintiff was invalid and would not divest the estate so vested.
45. In Annammah v. Mabbu Bali Reddy 8 M.H.C.R. 108 and Bhimabai Krishnappa Desai v. Tayappa Murarao Nadgauda 21 Ind. Cas. 107 : 37 B. 598 : 15 Bom.L.R. 783 the adoption was made by the widow after the son of her husband had died unmarried as in this case. The adoption was held to be invalid because upon the death of the son the inheritance vested in some one else and not in her. The case of Bhimabai Krishnappa Desai v. Tayapapa Naigauda 21 Ind. Cas. 107 : 37 B. 598 : 15 Bom.L.R. 783 is exactly similar to the present case as will appear from the following genealogy:
KRISHNAPPA -- Bhimabai (died 1888). (defendant | No. 1).
--------------------------
| | |
Bhogappa daughter Jayrao
(adopted in (defendant (defendant
1899 by defendant No. 11). No. 10) adopted
No. 1) died in by defendant
1902, unmarried. No. 1 in 1904.
46. On the death of Bhogappa in 1902 who died unmarried three or four years after his adoption, Bhimabai the widow of Krishnappa was excluded from succession to her first adopted son by custom of female exclusion and an agnate, namely, paternal uncle, plaintiff in the suit, succeeded Bhogappa. The adoption was held to be invalid. Now plaintiff Banamali in the present case stands in the place of the plaintiff in that case, an agnate of Krishnappa, Rani Indumati in place of Bhimabai widow of Krishappa and Jayrao the second adopted boy defendant in the case, in place of Amarendra the defendant No. 1 in the present case. It was held that the adopted boy did not divest the estate which had vested in the plaintiff in that case.
47. Now what will by the result if the Dompara Raj was a joint impartible estate and the plaintiff was a co-parcener having spes successionis in him. Three cases of the same family at different stages and under different circumstances which occurred in the Madras Presidency bear on the point, and they may now be conveniently considered here. These cases relate to a joint impartible zemindari in the district of Ganjam. The following genealogical table will be helpful in considering these cases:
CHANDRAMONI DEO |
--------------------
| |
Adhikanda-- Raghunandha
Kundana Devi |
(died 23rd November, Vaisnab (died
1868). 18th September, 1906)
| |
| Purusottam (died
| October, 1915)
| |
| Kunjabehari
| (defendant-respondent).
-------------------------
| |
Brajakishore = Ratanmala Madan Mohan
died on 3rd (adopted (2nd adopted son
September, son) (being being adopted
1906) adopted by in 1907, by Kundana
| Kundana Devi on Devi after Braja-
| 20th November, 1870). kishors's death).
Jaganaadha Gajapati
(adopted by Ratan-
mala widow of Braja-
kishore on 5th No-
vember, 1815).
48. On Adhikanda's death in 1868 the estate passed to Raghunadha, his undivided brother. Two years after in 1870 Kundana Devi, widow of Adikanda adopted Brajakishori Raghunadha contested the adoption. The adoption was upheld, Vide Sri Virada Pratapa Raghunadha Deo v. Sri Brozo Kishoro Patra Deo 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R.29 : 3 Sar.P.C.J. 583 : 3 Suth. P.C.J. 263 (P.C.), and plaintiff Brajakishori the adopted boy was held entitled to succeed to Raja Adikanda, his adoptive father, although the estate had before his adoption passed to Raghunadha, brother of Adikanda. After his death on 3rd September 1806, the estate passed to Vaisnab son of Raghunandha who died a few days after on the 18th September, 1906, and the estate passed to his son Purusottam. A year after in 1907 Kundana Devi made a second adoption and adopted Madan Mohan who sued for recovery of the estate from Purusottam. The suit was dismissed and the adoption was held to be invalid Vide Madana Mohana Ananga Bheema Deo Kesari v. Purushottama Ananga Bheema Deo 24 Ind. Cas. 999 : 38 M. 1105 : 27 M.L.J. 306 : 10 M.L.T. 413. The decision was upheld by the Privy Council Vide Madana Mohana Ananga Bheema Deo v. Purushottama Annaga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.). Their Lordships held that while the adoption of Brajakishore, the first adopted boy, was valid and operated to oust Raghunandan whose right to enter the estate was only temporary, just to prevent the ownership from being in abeyance pending any such succession to his elder brother as the adoption brought about she was in different position when she endeavoured to effect a second adoption. She could have on the first occasion "by exercising the power of adoption conferred on her established a direct succession to the estate of her husband Adhikanda which related back to his death. On the second occasion the ownership which had become vested in Brajakishore had intervened and it was only to his estate that she could possibly establish a succession". Accordingly, it was held that the authority to adopt conferred on Adhikanda's widow came to an end when Brajakishore, the son she originally adopted, die after attaining full legal capacity to continue the line either by the birth of a natural born son or by the adoption of a son to him by his own widow. The judgment by the High Court of Madras in this case was delivered in April, 1914, invalidating the second adoption by Kundana Devi. Thereafter on the 5th November, 1915, Ratnamala, widow of Brajakishore, purporting to act under the authority of her husband adopted Jagan-natha Gajapati. Parusottam having died in the meantime in October, 1915, the estate passed to Kunjabehari. Jagannatha Gajapatti brought a suit against Kunjabehari to recover the estate as an adopted son of Brajakishore. The judgment of this case is reported in Jagannadha Gajapati v. Kunja Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385. The suit was dismissed upon the ground that the deed executed by Brajakishore giving authority to his widow to adopt was inadmissible in evidence as being unregistered, but it was held that had the deed been not inadmissible the adoption by Brajakishore's widow would have been valid and would have the effect of divesting the estate which had by survivorship passed to the defendant Kunjabehari and the fact that the estate has passed to a collateral heir by survivorship in a joint impartible zemindari does not extinguish the power of adoption given by a man who held an indefeasible estate, the succession to the estate being only provisional and subject to the emergence of a male heir to the latter The person takes the estate till such heir comes into existence or his heir only takes a defeasible estate. It was also held that the theory that the adoption must be made to the last male holder has no application to the case of impartible zemindari.
49. Seshagiri Aiyar, J., quotes the following passage in the judgment of the Judicial Committee in the case of Madana Mohana Ranga Bheema Deo v. Purushottama Banga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.): "The authority to adopt conferred on Adikanda's widow was brought to an end when Brajakishore, the son she originally adopted, died after attaining full legal capacity to continue the line either by the birth of a natural born son or by the adoption to him of a son by his own widow", and also the passage "But Raghunatha's succession was of a character only provisional and subject to defeasance by the emergence of a male heir to Adikanda". Relying upon this case as well as the case of Venkataramier v. Gopalan 49 Ind. Cas 48 : (1918) M.W.N. 779 : 35 M.L.J. 698 : 24 M.L.T. 440 : 9 L.W. 43, which was decided a month before, Mr. Hasan Imam says that in a joint Mitakshara impartible estate adoption need not be made by the widow of the last full owner but it may be made to the predecessor of the last full owner, a member of the joint family, and thus he says the adoption made to Brajendra by his widow after the estate had passed to his son Bibhu dendra is valid. The genealogy in that case is as follows:
X |
--------------
| |
Ramsami Sastri Venkata-
(widow) ramier
|
---------------------
| |
Y (First Gopalan.
adopted son (second adopted
by the widow son adopted after
who died at the death of the
the age of 4). first adopted boy).
50. After Ramasami's death his widow under the authority from her husband first adopt-ed a boy who having died the widow again adopted Gopalan, the respondent. Before the second adoption the family property had passed by survivorship to the undivided uncle Venkataramier, the appellant. Gopalan, the second adopted son, brought a suit for partition of his share of the joint family property and for recovery of possession of the separate properties of Ramasami Sastri, The contentions that the adoption was not to the last male holder and the property not having vested in the adoptive widow the adoption was invalid, were overruled and it was held that the adoption by the widow of a deceased Hindu co-parcener after the death of a prior adopted eon while an infant and unmarried is valid and the second adopted son inherits to both the joint and separate properties of his adoptive father and Phillips, J., further held that "the theory that an adoption Should be to the last male-holder is not applicable to joint Hindu family living in co-parcenery." 'Mr. Sen distinguishes the case of Ramkrishna v. Shamrao 26 B. 526 : 4 Bom.L.R. 315, referred to above on the ground that there the adoption which was being considered was made by the widow of Brajakishore who was an adopted son of Adikanda and who upon his adoption became a co-parcener with Raghunatha. Brajakishore divested Raghunatha and became himself the proprietor of the estate, and this was upheld by the Privy Council in Sri Virada, Pratapa Raghunada Deo v. Sri Brozo Kishoro Patra Doe 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R.29; 3 Sar.P.C.J. 583 : 3 Suth. P.C.J. 263 (P.C.), and the adoption by his widow Ratnamala was to him as the last holder of the estate. Seshagiri, J., himself stated that adoption made by Brajakishore's widow would have been valid, upon the ground that he was the last male holder. However, he proceeded to decide that in a joint Mitakshara impartible estate adoption need not be to the last holder, which was not necessary for the decision of that case for as shewn above the adoption was to Brajakishore who was the last male-holder. The other case is of Venkataramier v. Gopalan 49 Ind. Cas 48 : (1918) M.W.N. 779 : 35 M.L.J. 698 : 24 M.L.T. 440 : 9 L.W. 43. The relationship in that case was similar to that in the present case with this difference that the first adopted boy in that case died at an age of 4 years and Bibhudendra in the present case died at the age of over 20 years six months Mr. Sen distinguishes the case upon the ground that the first adopted son in that case being 4 years of age had not attained full legal capacity to make an adoption, whereas Bibhudendra had attained legal capacity to adopt. And he says that if these cases meant to lay down any other principle it would be contrary to the principle laid down by their Lordships of the Judicial Committee and says that these cases ware wrongly decided by the High Court of Madras and are contrary to the principles laid down by their Lordships of the Judicial Committee in Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.) and he refers in particular to the following passage in that judgment: "She (widow of Adikanda) could on that occasion (in adopting Brajakishore by exercising the power conferred on her) establish a direct succession to the estate of her husband Adikanda which related back to his death. On the second occasion the ownership which had become vested in Brajakishore had intervened and it was only to his estate that she could possibly establish a succession". Mr. Sen says that this passage clearly indicates the view of their Lordships that adoption could be made only to establish a succession to the last full owner and as it was not made to the first adopted son who was the last holder of the estate, their Lordships held that the second adoption to the adoptive father of the first adopted boy was invalid. The fact that Brajakishore the first adopted boy had in that case left a widow was an accident and is not the ratio decidendi of that decision, for while their Lordships (at page 860) refer to the fact that it was not known whether she had power from her husband to adopt or not, they observe that in doing so--They do not desire to be understood as saying that even in its absence the succession of Brajakishore and his dying after attaining full legal capacity to continue the line would not in themselves have been sufficient to bring the limiting principle into operation, and so to have so determined the authority of Adhikanda's widow, who was not the widow of the last owner and could not adopt a son to him." Thus, Mr. Sen contends that their Lordships laid down the limit to the power of adoption by a widow to depend upon only two circumstances: (1) the succession of the son of the husband of the widow and (2) that son dying after attaining full legal capacity. They say these are "in themselves sufficient to bring the limiting principle into operation" and "to have determined the authority" of the father's widow who was not the widow of the last owner and who, therefore, could not adopt a son to him."
51. The learned Subordinate Judge has held in deciding issue No. 12 in suit No. 1 of 1924, at page 145 of the paper book, that Bibhudendra having died at an age of 20 years 6 months "under the Hindu Law he attained full age and legal capacity to continue his line," These findings are sufficient, according to Mr. Sen, to bring the limiting principle into operation arid the widow's power came to an end in terms of the decision of their. Lordships of the Judicial Committee referred to above. Bibhudendra being under the Court of Wards was technically minor until he attained the age of 21 years, and though under Section 61 of the Court of Wards Act (Act IX of 1879 B. C.) he could adopt only with the consent of the Government his minority in itself was no bar to an adoption. The only condition laid down in Hindu Law is that he should have attained the age of discretion. In Jumoona Dassya v. Ramasoondari Dassaya 1 C. 289 : 3 I.A. 72 : 25 W.R. 235 : 3 Sar. P.C.J. 602 : 3 Suth.P.C.J. 222 (P.C.) their Lordships held that a male youth of the age of 15 years is regarded as having attained the age of discretion and is competent to adopt or to give permission to his widow to adopt: vide Rajendro Narain Laheree v. Saroda Soonduree Dabee 15 W.R. 548, Mondakini Dasi v. Adinath Dey 18 C. 69 and Basappa v. Shidramappa 50 Ind. Cas. 736 : 43 B. 481 at p. 486 : 21 Bom. L.R. 287. The Indian Majority Act which fixes the age of majority to 21 years in the case of minors under the Court of Wards and to 18 years in the case of others, expressly leaves out the question of marriage, divorce and adoption unaffected which has to be determined under the Hindu law alone; vide Section 2 of the Indian Majority Act. An unmarried person can also under the Hindu Law make an adoption. Therefore, Bibhudendra had attained full age and legal capacity to continue the line by marriage or by adoption. The fact that the sanction of the Court of Wards may be necessary in respect thereto does not affect his legal capacity to do so. Upon these grounds Mr. Sen distinguishes the decision in Jagannadha Gajapati v. Kunja Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385 and Venkataramier v. Gopalan 49 Ind. Cas 48 : (1918) M.W.N. 779 : 35 M.L.J. 698 : 24 M.L.T. 440 : 9 L.W. 43 and says that even if they be distinguishable they went contrary to the principles laid down by their Lordships of the Judicial Committee in Madana Mohana Ranga Bheema Deo v. Purushottama Ranga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.), Mr. Sen cites the following cases where adoption was by the widow of the last male holder: Surendra Narain v. Sailaja Kant Das Mahapatra, 18 C. 385 and Bachoo Hurkisondas v. Mankorebai 31 B. 378 : 34 I.A. 107 : 11 C.W.N. 759 : 2 M.L.T. 295 : 17 M.L.J. 343 : 9 Bom.L.R. 646 : 6 C.L.J. 1 (P.C.) and These cases are consistent with the principle laid down by their Lordships of the Judicial Committee in Sri Virada, Pratapa Raghunadha Deo v. Sri Brozo Kishore Patra 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R.29; 3 Sar.P.C.J. 583 : 3 Suth. P.C.J. 263 (P.C.). In the Dayabhaga cases and in a separated Mitakshara family where succession is not by survivorship adoption is valid if made to the last male holder or where the estate vests in the adoptive mother, after the death of a natural or adopted son even if he had attained full age and legal capacity to continue the line; vide; the latest decision of the Madras High Court in Tripuramba v. Venkataratnam 72 Ind. Cas. 278 : 46 M. 423 : 44 M.L.J. 349 : A.I.R. 1923 Mad. 517. It is otherwise if the adoption is made by the widow when she does not succeed to her son, the last male holder even the son dies unmarried: Faizuddin Ali Khan v. Tincowri Saha 22 C. 565.
52. According to the original texts of Yajurveda, Manu, Atri, Vasishtha and others a person who is sonless, that is, who has not got a son, grandson and great-grandson, should adopt a son for the sake of funeral oblations, libations of water and obsequial rites, for by having a son he is absolved from the debts to ancestors, attains immortality and is saved from the infernal region called Put. Hence he is called Putra. For the same purpose, according to Vasishtha a widow after the death of her husband can make an adoption for him. In Bengal and in Upper India including Bihar, that is, in Bengal and Benares Schools she can adopt only with the express authority of her husband. In Bombay and the Madras Presidencies she may adopt without such authority: in the one case with the assent of her sapindas and in the other without it. We are concerned with the law that obtains in the Benares School. A widow in that School can make successive adoptions according to the direction of her husband and there is no time limit fixed for her to make an adoption and she can make an adoption at any time before her death: Madana Mohana Ananga Bheema Deo v. Purushotthama Ananga 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.). Although there is no text of Hindu Law bearing on the subject the Courts have laid down that her power to adopt becomes incapable of execution on the vesting of her husband's estate in some one other than herself. This is upon the ground that a Hindu estate cannot remain in abeyance and the widow should not by delaying the exercise of the authority given to her to adopt, disturb the vested interest of others. An adopted son is mentioned by Manu as occupying the third position out of 12 kinds of sons and acquires the same status as an aurasa or son begotten after his adoption. For certain purposes the adoption by a widow relates back to the death of the husband, such as, for the purpose of continuing a family trading partnership of which he was a member, to set aside an antecedent gift of her husband's property made by his widow and to dispute the propriety of other alienations if unsupported by legal necessity or benefit. This is, of course, upon the principle that upon his adoption he acquires a vested interest in the adoptive father's property and he can dispute the improper dealings by the widow before his adoption. But otherwise the adopted son acquires right only from the moment of his adoption. Where the widow had made an adoption after surrendering her estate to her daughter it was held that the adopted son was not entitled to avoid the surrender: Rama Nana Babar v. Dhondi Murari Tarade 76 Ind Cas. 607 : 47 B. 678 : 25 Bom. L.R. 161 : A.I.R. 1923 Bom. 432. He cannot also question the propriety of his adoptive father's previous alienations. It follows that the adoption to a person by his widow does not relate back to his death except for certain purposes, such as those mention above. In the case of Harek Chand v. Bejoy Chand Mahatab 2 C.L.J. 87 : 9 C.W.N. 795 it was held that the title of a son adopted by a widow under authority from her husband does not relate back to the death of the husband and when the adoption has taken place his fictitious birth in the new family cannot be antedated. It is upon this principle that an adopted son cannot divest the estate which before his adoption had been inherited by a person not from the adoptive father but from his son or other heirs. If the adoption had related back to the death of the father, an adopted son would have in the case of a separate Mitakshara family divested a person where after the death of the natural born son of the adoptive father the estate had, say by custom, vested before the adoption in a person other than the adopting mother, for he would have become the brother of the deceased son of the adoptive father and nearer in relation to him from the moment of the latter's death Such was the case in Bhimabai Krishnappa Desai v. Tayappa Murarrao Nadgauda 21 Ind. Cas. 107 : 37 B. 598 : 15 Bom.L.R. 783, but the adoption was held to be invalid: vide also Faizuddin Ali Khan v. Tincowri Saha 22 C. 565, a Mitakshara case. In a Mitakshara joint family an adoption is deemed to be a new birth of the adopted son in the family of the adoptive father. If the adoption is by the father himself, he becomes a co-parcener in joint family property of his adoptive father from the moment of his adoption and he acquires all the rights that an aurasa son would have from the moment of his birth. If the adoption is by the widow he becomes a member of the family from the time of his adoption. If the property be his father's ancestral property it becomes his ancestral property in which he takes the same vested interest from the time of his adoption as a natural born son from the moment of his birth: Rambhat v. Bababhat 16 B. 250. If the interest of the father has already been taken by his natural son before adoption, there is nothing left in him and his natural born son becomes a co-parcener in the joint family. It follows that a son adopted by the widow after the other members of the joint family have taken the interest of the deceased's natural born son in the ancestral property by survivorship, cannot take any thing inasmuch as his adoptive father had nothing at the time of his adoption and the other members had not taken from the adoptive father but from the son of the adoptive father. An adoption would then be made only to the deceased's son, for it is to his estate that succession can be established by adoption as observed by their Lordships of the Judicial Committee in Madana Mohana Ananga Bheema Deo v. Purushottama Ananga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.). As observed above, the object of the adoption is threefold: (1) spiritual purposes, (2) continuity of line and (3) preservation of the property. The first two can stand apart from the last one. The purpose of adoption for preservation of the property would be only in respect of such property as the adoptive father had at the time of his adoption. If he had no such property as in the case of a pauper, the adoption for that purpose fails. If the widow delays the adoption considerably, with the result that the estate of her husband passes successively to other persons, the adoption for the purpose of succeeding to that property fails and hence the question of vesting and divesting and the principle that adoption should be made to the last holder comes in for the purpose of preventing the disturbance of vested rights. The matter is to be determined not by any special rule of Hindu Law on adoption and the texts bearing on adoption have already been referred to, but under the common law. Confusion has, however, arisen in some cases on account of an attempt to justify the extinction of the power to adopt by bringing in a fictitious principle that adoption relates back to the death of the adoptive father or the date when the authority is given to his widow to adopt, the adopted boy being considered to be fictitiously conceived and in embroy just as a posthumous auras son. In the case of Pratapsing Shivsing v. Agarsinghji Raisinghji 50 Ind. Cas. 457 : 43 B. 778 at pp. 794 : 795 : 36 M.L.J. 511 : 17 A.L.J 522 : 2l Bom. L.R. 496 : 1 U.P.L.R. (P.C.) 39 : (1919) M.W.N. 313 : 10 L.W. 339 : 24 C.W.N. 57 : 27 M.L.T. 47 : 46 I.A. 97 (P.C.) their Lordships while holding that the widow may by her adoption prevent a maintenance grant made to the male descendants of a junior line from lapsing to the grantor in a joint impartible zemindari which had devolved on the undivided brother of the deceased holder observed: "but here the adoption was made immediately after the death of the grantor" and pointed out that the case might be different "if a Hindu widow lies by for a considerable time and makes no adoption and the property comes into the possession of someone who would take it in the absence of a son natural or adopted and such person were to create rights in such property within his competency whilst in possession ". In the present case after the death of Bibhudendra, the last male holder, the property passed by survivorship to the plaintiff and the adoption by the widow not being to Bibhudendra but to his father would not divest the estate which had devolved upon the plaintiff by survivorship, he having taken from Bibhudendra and not from his father.
53. Thus, even if the Dompara Raj is a joint impartible estate, the adoption of defendant No. 1 by Indumati was invalid and did not purport to divest the estate which had already vested in the plaintiff Banamali, but I have shewn that by the parties in the Court below both in the pleadings and in the evidence as well as in the judgment of the Court below the estate was treated to be a separate estate of Bibhudendra. In that case, as already shewn, unquestionably the adoption was invalid.
54. The defendants, however, say that the plaintiff is estopped from challenging the rights of Amarendra, inasmuch as he consented to the adoption and attested the two deeds Ex. G-J/l and G-2). True, he did attest them, but the adoption was not brought about by anything said or done by him or by any representations made by him. He came to the scene at the last moment. Apparently every thing was prearranged and the adoption took place without his being consulted about it. He did not in any way bring about the adoption. He says that he signed the deeds in ignorance of his rights and was induced to do so by the lawyers present there from beforehand. The evidence on behalf of the defendants is that his signature was taken because it was thought necessary to have the deeds attested by friends and relations. This is not sufficient for estoppel. Even if he consented to the adoption, that will not make the adoption a valid one which was invalid, inoperative and ineffective. It would not also in any way prejudicially affect his rights. I have considered the case cited by the parties. There was no express representation of fact which led the defendants to act on it and thereby affect the legal rights of the plaintiff: vide Dhanraj Joharmal v. Sonibai 87 Ind. Cas. 357 : 52 C. 482 : 52 I.A. 231 : 23 A.L.J. 273 : A.I.R. 1925 P.C. 118 : 2 C.W.N. 335 : L.R. 6 A.(P.C.) 97 : 27 Bom. L.R. 837 : 21 N.L.R. 50 : 49 M.L.J. 173 : (1925) M.W.N. 692 : 30 C.W.N. 601(P.C.). I, therefore, hold in agreement with the Court below that the adoption was invalid.
55. The suit was rightly decreed and I would accordingly dismiss the appeal with costs.
Scroope, J.
56. The subject matter of this litigation is Killa Dompara an impartible estate and one of the Killajat Mahals of Orissa in the District of Cuttack and the plaintiff Banamali Samanta claims it as the senior-most agnate of the male collaterals of the last holder Bibhudendra Man Singh Bhrahmarbar Rai, who died by drowning on the 10th December, 1922, aged 20 years and 6 months, against defendant No. 1 Amarendra Man Singh Bhrahmarbar Rai who is set up as the adopted son of Bibhudendra's father and immediate predecessor Brajendra Mansingh, having been adopted by the latter's widow defendant No. 3 Rani Indumati Patmabadei. On the death of Brajendra Mansingh the Court of Wards took charge of the estate as his son Bibhudendra was a minor and was in charge when Bibhudendra met his death by drowning. Defendant No. 2 was a third claimant on the ground that he is the son of Brajendra Mansingh by a second wife who was legally married to him in Phulabebahi form according to the family custom. This defendant No. 2 filed a suit of his own which was tried jointly with the suit out of which the present appeal arises and was dismissed so we are not concerned with that case now.
57. In the present case the lower Court held that there was a custom in the estate of female exclusion from the inheritance and that being so the Rani was not entitled to succeed her son on his death by drowning on the 10th December, 1922, that the authority to adopt was exhausted when Bibhudendra died and that Banamali as the nearest agnate was entitled to succeed. The defendant Rani and her adopted son now appeal.
58. Besides those indicated above other issues were raised in the lower Court notably as regards Ban amah's relationship and the ceremonial validity of the adoption and on these two points the learned Subordinate Judge found in favour of the plaintiff and defendant respectively, and these findings have not been challenged in the appeal or byway of cross objection. Therefore, we are concerned in this appeal with three points (i) the question of female exclusion; (ii) the effect of the adoption; (iii) estoppel.
59. As regards the first, the evidence produced in support of it consists of oral evidence of witnesses connected with the family statement in Stirling's Account of Orissa, and in a small pamphlet usually known as the 'Pachis Sawal', which is a record em-bodying answers given by the chiefs of the sixteen Fudatory Mahals in Cuttack and certain Kil as, so questions put in 1814 by the then Superintendent as regards the customs prevailing in these estates.
60. Stirling at page 39 after referring to the too great natural divisions of Orissa, namely, "the extensive hilly regions, forest tracts, jungle Pergannas and Mahals generally known as the Rajwara and ''the more fertile and productive portions" known as the Mogulbandi express the view that the former have been in all ages parcelled out among and occupied by a number of chieftains of the military class." 'These chieftains," he says, 'may be safely considered as de facto proprietors of their possessions under the native Governments, that is to say, they held them hereditarily, exercised uncontrolled territorial jurisdiction within their limits, and appropriated the entire revenues, subject to the condition of performing Military service, or other offices and duties, at the Court of their superior Raja, the Gaja-pati, residing mostly at Cuttack, which services have in later ages been generally commuted for a light tribute or money payment. The more fertile and productive division of the province (now the Mogul-bandi) formed the Kot, Khaliseb, or domain of the prince, from which the Hindu sovereigns of Orissa, like their successors the Moguls, Mahrattas, and English derived their principal revenues." He compares the feudal Chiefs in Orissa in their situation and duties to the Lords of the Marches in Europe and then goes on to say at page 40 nor is the above the only striking feature of analogy between the feudal Lords of India and the western hemisphere. The states or jurisdictions of that class in Orissa were always called by the Hindus, Gerhs, and by the Mussulmans, Killas or Castles. The position consequent upon the subjection of the province to the Mogul Government has been summarised in para. (b) under issue II of the judgment of the learned Subordinate Judge and it is unnecessary, to recapitulate it here, but I supplement it by the following extracts from Maddox's Settlement Report, para. 610, page 428, Vol. I which, conveniently delineates the position up to and shortly after the early days of the British occupation after 1803:
Besides the permanently settled mahals and the temporarily settled estates of the Mogulbandi, there are in Cuttack and Bala-sore certain estates known as killajat and occupying an anomalous intermediate position. These are Killas Dompara, Balrampur, Bagri, Chausatipara and Kantajhar in Cutfrick, and Killas Ambo, Mangalpar and Patna in Balasore. They were in the settlement of Raja Man Sinha in 999 A. D. left as part of the Rajwara; Ambo, Kantajhar; Bagri and Balrampur being all dependent fiefs of the zemindar of Keonjhar. The Mahrattas, however, resumed all these estates (except Dompara, which was of the nature of a jagir) and collected the revenue (jama not peskas) directly but left in, possession their former holders variously styled zemindars, bhuians and khandaits. and occasionally in later correspondence Rajas. They were all men of ancient Hindu stock, allied to the chiefs of the Garhjat Estates and some claiming royal descent from the prehistoric times; their succession was governed by the law of primogeniture lands being assigned for the maintenance of the younger brethren, and they kept up on a small scale the pomp and dignity of independent chiefs. Some, as we know of the Killas of the Rajwara obtained on the British conquest recognition as tributary estates; others, as Aul, Kujang, Kanika and Sukinda, with claims differing but little from those of the estates now dealt with, received a permanent settlement; but the eight Killas in question were brought on to the roll of temporary settled estates, and their revenue was on different occasions enhanced. Dompara was, in 1829, restored to the position of a permanently settled zemindari, provided only that in the event of any alienation the assessment should be open to revision.
61. The important facts then with reference to this case which emerge from this consideration of the early history of Orissa are that Killa Dompara was one of the Killajat Estates within the dominions of the Raja of Khurda and that its Sardar or chief was one of his Hindu vassals.
62. Now one of the factors which weighed with the Subordinate Judge in coming to the conclusion that there was a custom of female exclusion was the feudal nature of the tenure and Mr. Hasan Imam for the appellants contends that he laid altogether undue stress on Stirling's conclusions and that they have been treated as authoritative and final when they should only have treated as evidence in the case. Ha contends that even accepting Stirling's view this author has no where stated that there is any custom of female exclusion in the States of Orissa and that the lower Court has merely deduced it from the feudal nature of the estate, and from the fact that a woman cannot discharge the duties of a "Lord of the Marches." He argues that even if there was a custom of female exclusion then it must have arisen from the direction of the king or overlord, that this could not amount to custom, and that on the passing of this state of things with the advent of the British rule and there having been nothing military or feudal in the tenure since that period the estate must now be regarded as an ordinary zemindari, with no special custom adhering thereto by reason of its former feudal nature.
63. The learned Subordinate Judge may not have very carefully expressed himself when he writes as if he deduced the custom of female exclusion from the feudal nature of the estate; but it is quite clear that he took into consideration all the evidence in this case. Stirling's minute on Tenures of Orissa is part of his Account of Orissa and the latter has, been referred to by their Lordships of the Privy Council in Rama Kanta Das v. Shamanand Das 1 Ind. Cas. 754 : 36 C. 590 at p. 595 : 6 A.L.J. 364 : 13 C.W.N. 581 : 9 C.L.J. 497 : 11 Bom.L.R. 530 : 19 M.L.J 239 : 36 I.A. 49 : 4 M.L.T. 84 (P.C.) as a " very carefully drawn and reliable document; his work has thus the imprimatur of their Lordships of the Privy Council and is undoubtedly deserving of considerable weight on any question referring to Orissa All that it need be relied on for here is as establishing the feudal nature of these estates and that it is a fact which undoubtedly tells in favour of the theory of female exclusion though it is not a decisive consideration. Unquestionably the most reliable evidence on this matter is to be found in the Pachis Sawal. This brochure also is well-known as an authority on the custom of force in the Killajat and Feudatory States of Orissa and in three Calcutta cases it has been treated as such. Raja Sham Soondar Mohender v. Krishen Chunaer Bhowurbur Rai (1825) Sel. Rep. of the S.D.A. 49, Gopal Prasad Bhakat v. Raghunath Deb 32 C. 158 : 9 C.W.N. 330 and Braja Sundar Deb v. Swarna Manjeri Dei 47 Ind. Cas. 36 : 22 C.W.N. 433 : (1918) M.W.N. 313 (P.C.). The questions which concern the present case are Nos. XII, XIII, XIV and XV and it is the answer to XIV which the lower Court has found decisive in favour of the respondent's plea as regards custom. It has, however, been argued for the appellants that both question and answer No XII clearly contemplate female inheritance and that the answer to question XIV which the plaintiff relies on cannot be reconciled with answer XII unless we limit the expression "bradran Juddi" to mean "descendants from the paternal grandfather" a class which admittedly would not embrace the respondent Banamali.
64. The four questions and answers can be conveniently summarised and when put side by side the difficulty seems to me to disappear:
Question XII. Question XIII. Question XIV. Question XV.
Suppose a Raja leave only Suppose a Raja leave (b) Suppose a Raja leave (b) Suppose a Raja leave (b)
a son by a concubine and a brother (e) a nephew (d no brother (c) no nephew, no brother, c) no nephew,
(a) no sons by his Phul- a Pat Rani, (e) a daughter but (d) a Pat Rani, (e) (d) no Pat Rani (e) Ranis,
bebahis or slave girls, (b by a Pat Rani, who daughter by another Rani (f) Rani's daughters who
no brother c) no nephew, succeeds? who succeeds? succeeds?
(d) no Pat Rani, (e) no
daughter by a Pat Rani,
who succeeds?
Answer. Answer. Answer. Answer.
This concubine's son might The brother would succeed The nearest of kin among The nearest of kind among
succeed if there are none the brothers of the Raja's the brothers of the Raja's
of the heirs of the kind grandfather. grandfather.
indicated above and no!
bradan Jaddi.
65. For the appellants undue stress is laid on the expression "heirs" in the answer to question XII. The answer, however, does no more than detail the conceivable circumstances in which a son of a concubine would succeed. Seeing that there U a specific question, namely, question XIV which deals with the rights of succession of a Pat Rani and her daughter when no brother or nephew survives, I cannot see why we should treat the hypothetical reference in the answer to XII as overriding the specific answer to XIV and go out of way to draw incidental conclusions from a question and answer, which do not specifically deal with the point at issue when we have a question and answer which does specifically deal with it and that is question XIV. It is the use of the word 'heir' in answer XII which has led to this difficulty, but it must be remembered that in the early days of British rule the wording of general enquiries of this kind and the answers to them could not have been a matter of exact draftsmanship. If female succession was so well known and established as to be an assumption underlying the question XII and other questions where was the necessity for questions XIV and XV at all? Then Mr. Hasan Imam argued that any how the expression "bradran juddi" has been given too wide an interpretation in the Government translation which takes it to mean "brethren" or ''brothers of the Raja's paternal grandfather"; he contends that it must mean no more than "brethren of the Raja connected with him through his grandfather". One ground for this contention is that this is the only means of reconciling answers XII and XIV, but I have already indicated above that there is necessity for any such reconciliation when the questions and answers are looked at comprehensively instead of treating each question by itself. Both sides called expert witnesses as to the correct translation of ''Bradran Juddi" and "Pitamoho".
66. Mr. Abdul Qadir examined by the plaintiff is an Arabic scholar holding the degree of M A. in that language in the First class. He translates the answer to question XIV as follows: "From among the brethren or relations connected with the deceased Raja through his grandfather or ancestor whosoever may be the nearest in kind". Maulvi Muhammad Mohsin a Sub Deputy Collector bears him out; the defence examined two expert witnesses also, who would limit the expression to mean brethren of the Raja descended from the grandfather" and stress was laid on certain passages in the evidence of the plaintiffs' experts as bearing out their contention; for instance Mr. Qadir said that the translation given in the :Pachis Sawal" to question XIV, viz., " The nearest of kin among the brothers of the Raja's grandfather" was not correct, but reading the whole of his evidence it is obvious that what the witness meant was that the translation of "bradran juddi" as brethren of the grandfather was not absolutely accurate and that it could mean "brethren of the grandfather" or a more remote ancestor". Similarly Mr. Mohsin's statement that primarily '''juddi meant" "descendants from grandfathers" was stressed by the defence, but the defence cannot get away from the fact that any standard Arabic or Persian Dictionary as Mr. Qadir pointed out, gives "ancestral" as one of the meanings of the word "juddi".
67. Even the defence witness Mr. Ahmed admitted that juddi would mean father's father and upwards. There was a similar conflict about the Uriya word "Pitamoho", but I think it is merely used to make it clear that it is the grandfather on the paternal side and not on the mother's side through whom the inheritance is to be reckoned. But even if we confine "juddi" and "Pitamoho" to "grandfather" this will not satisfy the appellants; they want to limit the expression "bradran juddi-i-Raja" to the meaning brethern of the Raja descended from the Raja's grandfather", because that is the only way to exclude Banamali as he is descended from the late Raja's great grandfather, and not from his grandfather.
68. But this is not in accordance with any known scheme of inheritance in the Hindu Law; this alone to my mind knocks the bottom out of Mr. Hasan Imam's interpretation; it is not in accord with the plaintiff's expert evidence which to my mind is much more satisfactory than that of defendants; the latter are in obvious difficulties on their limited interpretation and lastly it is not in accord with the Pachis Sawal itself and, fourthly, the translation relied on by the respondent is the one adopted in the case of Nittanund Murdiraj v. Sree Kurun Juggernath Bewartah Patnaick 3 W.R. 116 "brethren of the Raja's grandfather" not "brethren of the Raja descended from his grandfather".
69. As regards the oral evidence relating to custom it can hardly be expected to be very valuable in a case of this partisan character; but that coming from the plaintiff's side seems to be as good as can be expected and is certainly superior to that, of the defendant's Jagabandhu Das (P.W. No. 1) has admittedly been long time in the service of Dompara family as a clerk and he gives a definite instance where a female was exclude from the succession, namely, on the death of Purusottam Mansingh without issue, who was the immediate predecessor of Kishor Mansingh on the Gaddi. According to this witness the mother of Purusottam (who was an adopted son) survived him but did not succeed; Kishori succeeded and next came his son Raghunath Mansingh after a contest in the Courts with Chintamoni his first cousin and the fater of the present plaintiff. The judgment in that suit has been filed by the plaintiffs and it establishes that in this estate the succession devolves on the senior-most of the nearest agnates which if we leave out the question of female inheritance is common ground in the pre-sent suit; none of the defendants specifically deny that Purusottam's adoptive mother was alive when Purusottam died. Plaintiffs have also examined Gadadhar Singh Samanta who gives specific and unrebutted instance of exclusion of a female in the Khandpara Kilajat Estate which is one of the estates covered by the Pachis Sawal whereas the defendants have called the adoptive mother and Brajendra's widow to depose against any such custom. Whatever be the truth about Purusottam'a widow, and it seems to me that on the state of the oral evidence this must be found in plaintiff's favour, the plaintiffs witnesses were in this difficulty that they were trying to prove a negative and their evidence could easily have been refuted by a single instance of succession of females in any of the numerous Garhjat or Killajat estates of Orissa; but none such is forthcoming. An instance was given for the defence by the adopting mother, of female succession in the Balasore Estate, but that is from the Chattisgarh State of the Central Provinces--a state outside the scope of the "Pachis Sawal"
70. Taking all the evidence produced on this point into consideration and considering it along with the undoubtedly feudal nature of the tenure I am satisfied that the plaintiffs have established a custom of female exclusion certainly female exclusion as against "bradran juddi" to which class of male relatives of Bibhudendra the plaintiff undoubtedly belongs.
71. Having found that there was custom of female exclusion in the estate the learned Subordinate Judge held that the adoption was invalid in law,, as on the death of Bibhudendra the widow, his mother, having no right to succeed, the estate vested in Banamali and the adoption could not divest him. He followed the decision of their Lordships of the Privy Council in the case of Bhuban Moyee v. Ram Kishore 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth.P.C.J. 574 : 2 Sar.P.C.J. 111 : 19 E.R. 978 and held that the real limitation on a mother's right to adopt was to be sought for in the question of vesting.
72. The learned Counsel for the appellant contended that the Subordinate Judge had wrongly taken vesting as the sole criterion of the validity of the adoption and has overlooked the question of ceremonial competence. His argument on this part of the case was that as Bibhudendra had died unmarried and was a ward of the Court he had not attained full capacity to continue the line either by the birth of a natural born son or by adoption, and that hence the adoption made after his death should be treated as having been validly made He relies on the decision of the Privy Council in the case of Madana Mohana Anavga Bheema Dei v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.) where their Lordships indicate, that the attainment of majority by a son divests the mother of the power to adopt; hence argues that the converse principle follows that a mother can always adopt validly if her son dies unmarried and without an heir.
73. This contention must fail on the facts of the present case. In the case of Annammah v. Mabbu Bali Reddy 8 M.H.C.R. 108 one Chinna had died unmarried as Bibhudendra did here, but it was held there that the adoption to his father by his step-mother could not divest the estate from the next heir. The relevant portion of the High Court's judgment runs as follows:
The principle of the decision of the Privy Council reported in 10 Moore's Indian Appeals appears to govern the case. Chinna inherited his father's property, he had full power of disposition over it; he might have alienated it; he might have adopted a son to succeed to it, if he had no male issue of his body; he could have defeated every intention which his father entertained with respect to the property.
74. On like effect is the decision of the Bombay High Court in Bhimabai Krishnppa Desai Tayappa Murarao Nadganda 21 Ind. Cas. 107 : 37 B. 598 : 15 Bom.L.R. 783 The fact that Bibhudendra was under the Court of Wards and, therefore, subject to certain disabilities in that he could not make an adoption without the consent of the Local Government and could not create without the sanction of the Court any charge upon or interest in his property or any part thereof, does not, in my opinion, make any difference, because he was fully competent to give a new start or order of succession to his line as against any one ranking after him in the order of succession or survivorship that existed during his lifetime. The Indian Majority Act which fixes the age of majority for a Ward of the Court at 21 expressly leaves the capacity of such a ward to adopt unaffected.
75. Looking at the matter generally there is no doubt that a widow duly empowered ad here can adopt on the death of her natural son or adopted son, but there are limitations on this power and the position merging from all the cases cited by Mr. Sen for the respondents: Kally Prosonno Ghose v. Gocool Chunder Mitter 2 C. 295, Bhubaneswari Debi v. Nilcomul Lahiri 12 C. 18 : 121. A. 137 : 4 Sar. P.C.J. 651 (P.C.), Mondakini Dasi v. Adinath Dey 18 C. 69, Surendra Nandan v. Sailaja Kant Das Mahapatra 18 C. 385. Faizuddin Ali Khan v. Tincowri Saha 22 C. 565 has been summed up as follows by Maynein "Hindu Law" para. 191 (9th edition):
First, where an adoption is made to the last male holder, the adopted son will divest the estate of any person, whose title would have been inferior to his, if he had been adopted prior to the death, secondly, where the adoption is not made to the last male holder, but is made by the widow of any previous holder, it will, if in other respects valid, divest her estate, thirdly, in no other circumstances will an adoption made to one person divest the estate of any one who has taken that Estate as heir of another person. All these rules seem to be consistent with natural justice.
76. Mr. Justice Ranade sums up the position very similarly in Payapa v. Appanna 23 B. 327:
There can be no doubt that, as a general rule of strict Hindu law as settled by judicial decisions, it is only the widow of the last full owner who has the right to take a son in adoption to such owner, and that a person, in whom the estate doss not vest cannot make a valid adoption so as to divest (without their consent) third parties, in whom the estate has vested, of their proprietary rights. This position was first laid down in Bhooban Moyee Debia v. Ramkishore Acharji Chowdhury 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth.P.C.J. 574 : 2 Sar.P.C.J. 111 : 19 E.R. 978 and has been repeatedly affirmed by their Lordships in Padmakumari Debi v. Court of Wards 8 C. 302 : 8 I.A. 229 : 4 Sar.P.C.J. 285 : 6 Ind. Jur. 148 (P.C.) and again in Thayammal v. Venkatarama 10 M. 205 : 141. A. 67 : 11 Ind. Jur. 271 : 5 Sar. P.C.J. 10(P.C.) and Tarachurn Chatterji v. Suresh Chunder Mukerji 16 I.A. 166 : 17 C. 122 (P.C.), Effect was given to this View by the Madras High Court in Annammah v. Mabbu Bali Reddy 8 M.H.C.R. 108 by the Calcutta High Court in Taracharn Chatterji v. Suresh Chunder Mukerji 16 I.A. 166 : 17 C. 122 (P.C.) and by this Court in Keshav Ramkrishna v. Govind Ganesh 9 B. 94 and Chandra v. Gojarabhai 14 B. 463. In most of these cases the estate had vested in the daughter-in-law by reason of her husband having survived his father: Bhoobun Moyee Debia v. Ram Kishore Acharji Chowdhry 10 M.I.A. 279 : 3 W.R.P.C. 15 : 1 Suth.P.C.J. 574 : 2 Sar.P.C.J. 1ll : 19 E.R. 978, Thayammal v. Venkatarama 10 M. 205 : 141. A. 67 : 11 Ind. Jur. 271 : 5 Sar. P.C.J. 10(P.C.), Tarachurn Chatterji v. Suresh Chunder Mukerji 16 I.A. 166 : 17 C. 122 5 Sar. P.C.J. 373 (P.C.), Krishnarav Trimbak v. Shankarrao Vinayak 17 B. 164 and Keshav Ramkrishna v. Govind Ganesh 9 B. 94, and it was held that the mother-in-law could not by exercising her power of adoption defeat her daughter-in-law's right. The same principle governs cases when the son dies before his father, and it is the daughter-in-law who seeks by adoption to divest the mother in-law of her rights-- Shri Dharnidhar v. Chinto 20 B. 250. The same rule applies to the case of collateral relations--Rupchand v. Rakhmabai 8 B.H.C.R. A.C. 114; Annammah v. Mabbu Bali Reddi 18 C. 385, Chandra v. Gojarabhai 14 B. 463.
This is really the principle for which Mr. Sen contended in the course of his exhaustive argument on behalf of the respondents, viz. that the adoption must be to the last male owner. In other words we have to see whose estate the widow is affecting by the adoption. We have found that there is a custom of female exclusion and that the estate must accordingly have passed to Banamali on Bibhudendra's death as admittedly a Hindu estate cannot remain in abeyance. Hence on the vesting test also the appellants must fail, it is not a case of a widow divesting herself of her own estate as in Rajah Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya 1 M. 174 : 4 I.A 1 : 26 W.R. 21 : 3 Sar. P.C.J. 669 : 9 Suth. P.C.J. 353 (P.C.), Venkappa v. Jivaji Krishna 25 B. 306 : 2 Bom.L.R. 1101, Tripuramba v. Venkataratnam 72 Ind. Cas. 278 : 46 M. 423 : 44 M.L.J. 349 : A.I.R. 1923 Mad. 517, in all of which the adoption was held to be valid. It is urged, however, on the authority of Pratapsing Shivsing v. Agarsinghji Raisinghji 50 Ind. Cas. 457 : 43 B. 778 at pp. 794 : 795 : 36 M.L.J. 511 : 17 A.L.J 522 : 2l Bom. L.R. 496 : 1 U.P.L.R. (P.C.) 39 : (1919) M.W.N. 313 : 10 L.W. 339 : 24 C.W.N. 57 : 27 M.L.T. 47 : 46 I.A. 97 (P.C.) that the right of a widow; to adopt is not dependent on her inheriting as a Hindu female owner her husband's estate; "a widow" say their Lordships of the Privy Council "can exercise the power so long as it is not extinguished or exhausted." The qualifying words are important. The case their Lordships were considering was one of an estate which reverted on failure of male heirs to the grantor, and they held that the widow's power to adopt was irrespective of any such reversion, it was not a dispute as here between an adopted son and collaterals, but the crucial point which distinguishes this case from the present is that the adoption in Pratapsing Shivsing v. Agarsinghji Raisinghji 50 Ind. Cas. 457 : 43 B. 778 at pp. 794 : 795 : 36 M.L.J. 511 : 17 A.L.J 522 : 2l Bom. L.R. 496 : 1 U.P.L.R. (P.C.) 39 : (1919) M.W.N. 313 : 10 L.W. 339 : 24 C.W.N. 57 : 27 M.L.T. 47 : 46 I.A. 97 (P.C.) was made to the last full owner. It was next contended that what I may call the last male owner rule does not apply to joint impartible estates, and reliance was placed on two cases of the Madras High Court, Venkataramier v. Goplan 49 Ind. Cas 48 : (1918) M.W.N. 779 : 35 M.L.J. 698 : 24 M.L.T. 440 : 9 L.W. 43 and Jagannadha Gajapati v. Kunja Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385. As to whether the plaintiff has set up a case of jointness or separation the plaint is somewhat vague; it may be that this vagueness is deliberate on the part of the plaintiff as it is a case of separation, the plaintiff's case will have to rest entirely on the custom of female exclusion, whereas if it is a joint impartible estate, plaintiff has the second line of defence in that under the Mitakshara law females will not succeed and accordingly it cannot be a case of the widow when she adopted divesting only herself, but with this disadvantage that the power of adoption has to be considered apart from the question of female exclusion and with reference to the joint family as a whole. Certainly paras. 7 to 11 of the plaint taken with the statements of P. W. No. 1 that "Madan and Kishori were separate" point rather to a case of separation but apparently what the witness meant is that these two were separate from Purusottam when he held the Raj--vide his statement in cross-examination. "In have heard that the mother of Purusottam severed her son from my ancestors". His answers were evidently directed to the instance of female exclusion alleged to have arisen on Purusottam's death, anyhow there was no issue on the question and it may also be that defendants were content to leave that portion of plaintiff's case in the air as if it is a case of jointness they would have found it necessary to prove a custom of female inheritance in order to bring the case into the class of adoption cases where the widow divests only herself and can thus make a valid adoption. If Brajendra and Bibhudendra after him held the Estate as their separate properties then on the finding as to female exclusion the plaintiff must for the reason given succeed.
78. If the family is joint, I fail to see how the defendants are any better off. The case of Jaganndha Gajapati v. Kunj Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385 is a continuation of the litigation dealt with in Sri Virada Pratapa Raghunada Deo v. Sri Brozokishore Patra Deo 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R.29 : 3 Sar.P.C.J. 583 : 3 Suth. P.C.J. 263 (P.C.) and in Madana Mohana Ananga Bheema Deo v. Purashothama Ananga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.). Plaintiff was the adopted son of Brajakishore who was himself the adopted son of Adikonda, on Brajakishore's death his adoptive father's brother's son Baisnab who was the senior collateral succeeded. He was succeeded in turn by his son Purusottam who died without issue and then the latter's younger brother Kunja Bihari succeeded. Plaintiff failed as the authority to adopt was not duly established but the Madras High Court held that having regard to the view expressed by their Lordships of the Privy Council in the preceding case Madana Mohana Ananga Bheema Deo v. Purushothama Ananga Bheema Deo 46 Ind. Cas. 491 : 41 M. 855 : 35 M.L.J. 138 : 5 P.L.W. 179 : 8 L.W. 167 : 16 A.L.J. 725 (1918) M.W.N. 21 : 24 M.L.T. 231 : 28 C.L.J. 403 : 20 Bom.L.R. 1041 : 23 C.W.N. 177 : 45 I.A. 156 (P.C.), that Raghunathan's succession was of a character only provisional and subject to defeasance by the emergence of a male heir to Adikonda, the new heir who had now appeared by the adoption of Brajakishore's widow would have been entitled to take the Estate and to defeat the estate of Baisnab's line had the adoption been valid per se. In this case Seshagiri Aiyar, J., reiterates the view which he had already expressed in Madana Mohana Ananga Bheema Deo Kesari v. Purushothama Ananga Bheema Deo 24 Ind. Cas. 999 : 38 M. 1105 : 27 M.L.J. 306 : 10 M.L.T. 413, that the theory that the adoption must be made to the last male owner does not apply to a joint impartible estate and it is on that basis he arrived independently at the above conclusion. It was necessary in the case of Madana Mohana Anang Bheema Deo Kesari v. Purushothama Ananga Bheema Deo 24 Ind. Cas. 999 : 38 M. 1105 : 27 M.L.J. 306 : 10 M.L.T. 413 to refute the view that as the adoption was not made to Baisnab the last male owner it was invalid and there was a similar contention to be met in Jagannadha Gajapati v. Kunja Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385, that as Purusottam was the last male owner the adoption should have been made to him and Seshagiri Aiyar, J., in both cases did so by applying the above principle. In Venkataramier v. Gopalan 49 Ind. Cas 48 : (1918) M.W.N. 779 : 35 M.L.J. 698 : 24 M.L.T. 440 : 9 L.W. 43 it was really not necessary to apply the principle at all as the first adopted boy had died when aged only four and thus had not attained full capacity to continue the line, and that in itself was sufficient to validate the second adoption. However, taking these three decisions together Madana Mohana Ananga Bheema Deo Kesari v. Purushothama Ananga Bheema Deo 24 Ind. Cas. 999 : 38 M. 1105 : 27 M.L.J. 306 : 10 M.L.T. 413, Jagannadha Gajapati v. Kunja Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385 and Venkataramier v. Gopalan 49 Ind. Cas 48 : (1918) M.W.N. 779 : 35 M.L.J. 698 : 24 M.L.T. 440 : 9 L.W. 43, what they really lay down is that in a joint impartible estate the rights of survivors are. subject to defeasance by the emergence of a eon by adoption to the deceased, but this is no novel principle in the law of adoption It was the view taken by the Privy Council in the case of Sri Virada Pratapa Raghunada Deo v. Sri Brozokishoro Patra Deo 1 M. 69 : 3 I.A. 154 : 11 Mad. Jur. 188 : 25 W.R. 29 : 3 Sar.P.C.J. 583 : 3 Suth. P.C.J. 263 (P.C.) and followed by the Bombay High Court in the case of Bachoo Hurkison Das v. Mankorebai 31 B. 378 : 34 I.A. 107 : 11 C.W.N. 759 : 2 M.L.T. 295 : 17 M.L.J. 343 : 9 Bom.L.R. 646 : 6 C.L.J. 1 (P.C.), and this decision was affirmed by their Lordships of the Privy Council in the case of Bachoo Hurkisondas v. Mankorbai 31 B. 378 : 34 I.A. 107 : 11 C.W.N. 759 : 2 M.L.T. 295 : 17 M.L.J. 343 : 9 Bom.L.R. 646 : 6 C.L.J. 1 (P.C.), see also the case of Surendra Nandan v. Sailaja Kant Das Mahapatra 18 C. 385. The principle in either form is, however, of no avail to the defendants because where they go wrong is in confusing the last male owner with the last full owner In the case of Jagannadha Gajapati v. Kunja Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385 neither Baisnab nor Purusottam, nor Kunja Bihari were full owners in the sense that they took an indefeasible estate, their estate was liable to defeasance the minute Ratanmala adopted to her deceased husband Brajakishore who left no heir, he being last full owner. In Venkataramier v. Gopalan 49 Ind. Cas 48 : (1918) M.W.N. 779 : 35 M.L.J. 698 : 24 M.L.T. 440 : 9 L.W. 43 the undivided brother took a similar defeasible estate, the first adopted son died when only four, he had not attained full capacity to continue the line, hence the widow could make a second adoption and prevent the undivided brother taking the whole property. In other words in a joint impartible estate, it is not necessary in order to ensure the validity of an adoption that it must be made to the last male owner, it must be made to the last full owner. We have to test its validity by reference to the person to whom the adoption is made, not to the person in whom the impartible estate is for the time being vested, the widow's power does not depend on the position of the estate at the time of adoption. Here the appellants are claiming by virtue of the adoption not the estate of adoptive father Brajendra, but the estate of his son, Bibhudenra who was the last full owner. Had Brajendra died leaving no son or an adopted son who died before attaining full legal capacity as in Venkataramier v. Gopalan 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385 the collaterals would have taken the estate subject to defeasance on a subsequent adoption by his widow the defendant. But Brajendra left a son, who died as I hold, after attaining full legal capacity to continue the line, is Brajendra's widow in exactly the same position in both cases? I think the answer must clearly be in the negative. The widow's power had gone when Brajendra died after attaining full legal capacity to continue the line. There is no authority for the contention of the appellants which really amounts to this that a widow with no right of succession of her own can adopt to her deceased husband so as to keep the succession in the family, when his natural born son though competent to do so has failed to do so though leaving no son of his own either natural born or adopted. The rulings of Seshagiri Aiyer, J., in the cases in question cannot be interpreted as conferring any such unlimited powers of adoption on a widow. In Jagannadha Gajapati v. Kunja Behari Deo 49 Ind. Cas. 929 : (1919) M.W.N. 52 : 25 M.L.T. 204 : L.W. 385 that learned Judge accepts the limitation on the widow's power to adopt as laid down by their Lordships of the Judicial Committee in Madana Mohana Ananga Bheema Deo Kesari v. Pursuhottama Ananga Bheema Deo 24 Ind. Cas. 999 : 38 M. 1105 : 27 M.L.J. 306 : 10 M.L.T. 413, we have seen that a similar limitation exists here. Thus in any aspect of the case the adoption must be held invalid.
79. As regards the question of estoppel, I fail to see how any such plea can be advanced against the respondents. The evidence established that Banamali did no more than witness the deeds by which the adoption of defendant No. 1 was confirmed by the different Ranis. The evidence from the defendants side which tries to make out that he was a party in bringing about the adoption, cannot be accepted. It is not established that he held out any representation in the matter. He was nothing more than a mere witness at the best. Obviously in such circumstances it is far-fetched to advance an argument based on estoppel and I can see no force in it. I would accordingly dismiss the appeal with costs.