Patna High Court
Sahdeo Narain Deo And Ors. vs Kusum Kumari on 26 March, 1918
Equivalent citations: 46IND. CAS.929, AIR 1920 PATNA 291
JUDGMENT Chapman, J.
1. Thakur Lalit Narain Deo, the proprietor of an estate known as the Lachmipur Raj, died on the 23rd April 1871. Before his death he executed a Will, whereby he bequeathed his estate to his eldest widow Mahkum Kumari, with authority to adopt. Mahkum Kumari succeeded to the possession of the estate. On the 22nd January 1885 she entered into an agreement with one Narain Singh and his wife Chhatar Kumari, under which they consented to give their son Tek Narain in adoption subject to the condition that during the lifetime of Mahkum Kumari Tek Narain would not inherit. Thereupon Mahkum Kumari took the said Tek Narain in adoption under the name of Pratap Narain Deo. On the 29th July 1898 Mahkum Kumari relinquished her estate in favour of Pratap Narain Deo Pratap Narain was then a minor. The Court of Wards took charge of the estate on his behalf in September 1898. He came of age on the 29th October 1901 (paper-book, respondent's portion, page 197, Exhibit Aa) and was installed as proprietor in February 1902.
2. The suit out of which this appeal arises is for declaration of title and for recovery of possession of the estate from Pratap Narain Deo. The plaintiff Sahdeo Narain claims under the rule of lineal primogeniture to be the true heir of Thakur Lalit Narain Deo. Jyoanti Kumar Mukherji, who joined in the suit, claims as assignee by purchase of a portion of the estate together with a 6-annas share of the entire mesne profits. Bhim Narain Deo, the other plaintiff, is the half brother of Sahdeo Narain Deo. He appears to have admitted that the title of Sahdeo Narain Deo was superior to his. He joined in the plaint in view of the possibility that the Court would take a contrary view and hold that the superior title was vested in him. The application of the rule of lineal primogeniture was contested by the defendant. The point will be dealt with at the conclusion of the judgment. The plaintiffs denied the factum of the adoption by Mahkum Kumari and also alleged that the requirements of the Hindu Law as to adoption had not been complied with. This part of the case has now been abandoned, and it is now conceded that the adoption did take place and that there was no failure to comply with the Hindu Law in reference thereto. The plaintiffs' case, however, also was that there was a family or clan custom which forbids, and bars inheritance by, adoption, and that, therefore, Pratap Narain Deo had no title to the property. The suit was dismissed by the Subordinate Judge. The plaintiffs now appeal to this Court.
3. The questions at issue raised by the plaint may be treated, for the moment, as reduced to the one question, whether the custom invalidating adoption has been proved or not. The defendant raised various pleas in bar, which will be dealt with separately at the conclusion of the judgment.
4. The suit was instituted on the 18th September 1907. It was dismissed for default on the 28th June 1909. Application to restore was rejected on the 22nd February 1910. On appeal the suit was restored by order of the High Court dated the 5th March 1912. The widow Mahkum Kumari died on the 31st January 1908. The adopted son Pratap Narain Deo died on the 22nd November 1913, leaving a Will in favour of his eldest widow Kusum Kumari and giving her power to adopt an heir to him. At the time when the suit was dismissed on the 29th February 1916, Kusum Kumari was the sole defendant and she is the sole respondent in this appeal.
The Custom pleaded.
5. The custom is pleaded in paragraph 5 of the plaint. The paragraph reads as follows:
That the said Lachmipur Raj or estate is known in the Mofussil as a gaddi, and there are 84 gaddis in the district of Bhagalpur and in the neighbouring districts of Monghyr, Santal Pargnas, Hazaribagh, Manbhum, Singbhum, Bankura and Gaya, which are owned and possessed by Surajbansi Rajputs of the same clan as the said Thakur Lalit Narain Deo and go by the collective name of Chowrasi or 84; and amongst these Surajbansi Rajput holders of the gaddis there is a family or clan custom which forbids, and bars inheritance by, adoption and the succession to these gaddis by blood relation cannot be defeated by adoption.
6. In so far as this amounted to a plea that adoption was forbidden altogether, the plea was abandoned on the 20th December 1915 near the conclusion of the trial. This Court has not been asked to hold that adoption is generally forbidden, save in so far as it operates to defeat the right of succession according to the custom of lineal primogeniture. The custom which we have been asked to find is a custom which bars inheritance by adoption, that is to say, which does not permit an adopted son to succeed.
7. It will be next observed that the custom is alleged to be a custom among Surajbansi Rajput holders of the Chowrasi gaddis. It appears from the Subordinate Judge's judgment that there was at one time some confusion as to whether the custom should be treated as a Surajbansi Rajput caste custom, or should be treated as a custom of these particular gaddis only. The first 12 witnesses examined by the defendant appear to have been examined on the understanding that the custom alleged was a caste custom. From the terms of the plaint, however, and from the nature of the questions put to all the plaintiffs' witnesses, it is reasonably manifest that the plaintiffs always regarded the custom as a gaddi custom. Mr. Das on their behalf denies there was at any stage any treatment by the plaintiffs of the custom as a caste custom or any admission made by the plaintiffs' Counsel in that connection. Mr. Das denies a statement made to the contrary in the judgment of the learned Subordinate Judge under issues 7, 8 and 9. See paper-book, parts V--VIII, pages 566-67.
The Community in which the custom is said to prevail.
8. The fact that the group of gaddis referred to in the plaint as the Chowrasi gaddis is now a recognised community in which such a custom as that pleaded could exist, has been admitted in this Court. The Subordinate Judge's finding to the contrary is inconsistent with the finding at the end of his judgment, and is indeed against the whole tenor of the evidence. The community is usually referred to by the name Baisi Chowrasi, a name which is ordinarily understood to mean 22-84, but which is now merely a name. The significance of the numbers 22-84, if indeed that be the true meaning of the name, has been lost in antiquity. The tradition is that they all come from the same common stock (the plaintiffs' witness No. 10 and the defence witness No. 31.) The defence witnesses Nos. 43, 44, 50, 51 and 52 gave evidence of a tradition that there were originally 22 gaddis out of which 84 were formed. Defendant's witnesses Nos. 46, 48, 59, 68 and 70, and a witness in a previous case (Exhibit Y-13, paper-book, part III, page 184, line 13, and Exhibit 12, paper-book, parts I and II, page 168) stated that the Chowrasi gaddis are governed by the same customs--Exhibit M-5, paper-book, part IV, page 84, may also be referred to. Exhibit A (paper book, part IV, page 1) is the record of resolutions come to at a meeting in March 1907 for the purpose of performing certain ceremonies at a marriage and incidentally to outcaste Pratap Narain Deo, the holder of the Lachmipur Gaddi; the persons present described themselves as belonging to the Baisi Chowrasi. It is clear, therefore, that a recognised community now exists bearing that name.
The Origin and history of the chowrasi Gaddis.
9. It is contended on behalf of the appellant that this group or community was originally non-Hindu, and that this fact, if true, would assist him in discharging the burden of proving that inheritance by adoption was forbidden. The Subordinate Judge refused to admit any evidence to prove a non-Hindu origin. It appears that an application to amend the plaint was made at a very late stage after a considerable body of evidence had been taken on commission. The application to amend was made for the purpose of alleging for the first time that the ancestors of the Lachmipur Raj were originally non-Hindus who in course of time adopted certain customs in vogue amongst the Hindus but did not recognise the custom of adoption. We are of opinion that the learned Subordinate Judge was right in refusing permission for the amendment of the plaint at that stage but he was, in our opinion, wrong in excluding evidence relating to the origin of this community, There was no definite plea in the plaint as originally filed which was irreconcilable with such evidence; and the evidence was relevant to the issue which he had framed, whether the estate was governed by a custom which bars inheritance by an adopted son. We have accordingly permitted Mr. Das to place before us such material as may be available upon the subject of the origin of this community. Mr. Manuk on behalf of the respondent objected to this course but on our pointing out that any grievance which he might have in this connection would be sufficiently met by an order of adjournment, he decided, as we understand, not to apply for adjournment but to utilise the time which would necessarily be occupied in the remainder of the hearing of the appeal in obtaining any material which he could to contradict the authorities cited before us by Mr. Das.
10. The origin of the community is lost in obscurity. The first group of facts to be considered will appear from a judgment of the year 1885, Exhibit Y-13. A tract of country known by the name of Kharagdiha originally formed part of a very extensive kingdom or chieftainship known by the name of Sheor Mahomedabad. When the English entered Chota Nagpur, they found Kharagdiha to consist of 38 tenures called gaddis. It is clear that they then constituted a portion of a recognised community. The holders of these gaddis were practically independent but derived the symbol of authority from the Raja of Sheor Mahomedabad, who himself derived the sanction of his power from a ceremony of installation performed by the Hindu high priest of Deoghar. The tradition was that these tenures existed from pre-historic times and were originally held under an indigenous Raja before the founder of the Sheor kingdom invaded from the south. There appears to have been no general tradition that the holders of these gaddis were originally Rajput invaders from the north-west. In exceptional cases only does there exist such a tradition, for instance in Tundi, Gawan, Jharia, and Palganj. The indication, therefore, is that as a group these gaddidars were originally indigenous and at some time not known accepted Hinduism. This tract of country called Kharagdiha was subsequently distributed for administrative purposes between the districts of Manbhum, Hazaribagh and others. It appears, roughly speaking, to have originally covered the area in which the community with which we have to deal held their tenures (see Exhibit M-5). The 38 gaddis above referred to admittedly all belong to the Baisi-Chowrasi.
The History of Lachmipur.
11. The next group of facts to consider is connected more particularly with the Lachmipur gaddi and the neighbouring gaddis in the districts of Bhagalpur and the Santal Parganas. From Exhibit 2, which is a copy of an agreement between the two first plaintiffs, it appears that there was a tradition that the Lachmipur gaddi was acquired more recently than the original 38, gaddis mentioned in the judgment which I have above referred to. The tradition is that the Lachmipur gaddi is a branch of the Kurchutta gaddi, which is one of the 38, and that the Lachmipur ancestors came from Kurchutta and settled under the Raja of Kharagpur on the property now known as the Lachmipur Estate, a portion of which is situated in the Santal Parganas. Now it appears from Mr. McPherson's Settlement Report of the year 1907, on the Santal Parganas district, that there is some reason for holding that the chiefs of Lachmipur were originally Bhuiyas, see pages 20-21 of Mr. McPherson's Report. In their resolution of September 1898, taking charge of the estate on behalf of Pratap Narain, then a minor, the Board of Revenue as Court of Wards stated that the Lachmipur family though calling themselves Surajbansi Rajputs were originally Bhuiyas. Mr. McPherson classes the Bhuiyas who still retain that name as semi-aborigines even now, page 11. On page 193 of the report, 8 other of the gaddis of this community are described as of Bhuiya origin. At some stage they, like the rest of the community, called themselves Surajbansi Rajputs. Captain Brown, who was in the country as the representative of the East-India Company in 1772--78, does not mention the fact that the Bhuiyas in the Santal Parganas made any claim to be Rajputs. It appears, however, that in 1807 when Dr. Francis Buchanan was employed for the purposes of making an enquiry into the general conditions of that part of the country, he found that the higher ranks of the Bhuiyas then in 1807 pretended that they were descended from the Suggod and called themselves Surajbansi Rajputs, observed the rules of purity required by Rajputs, and had assumed the thread which distinguishes the Rajput from the lower castes. Dr. Buchanan observes that where the Bhuiyas are powerful the Mithila Brahmins consent to perform their ceremonies and are not considered as degraded by this condescension. On the other hand the true Rajputs of whom some representatives were found by Dr. Buchanan were noted by him as holding the Bhuiyas in contempt. He notes that the true Rajputs say that Rup Narain, the then holder of the Lachmipur gaddi, had compelled the Hindus of his territory to admit his purity. There are also some slight indications of a non-Hindu origin existing at present or in recent times. Thus at the Nowagarh marriage (Exhibit A) in 1907 goats were sacrificed. Again, the word kasyapa has been adopted by the community as the name of their gotra. The word kasyapa is derived from a Sanskrit word meaning a tortoise. The use of the word indicates a totemistic origin. Further, Hindus, as a general rule, do not marry within the gotra; but this community do marry within their so-called gotra, though apparently they do not marry within some seven degrees in the gotra. These seven groups appear to be Kurchutta, Palganj, Tundi, Tonogarh, Chakai, Nagpur and Chakmanjo. This will appear from the evidence of the defence witnesses Nos. 22, 44, 45, 56, 79, 90 and 94, and the plaintiffs' witness No. 27. To exemplify our meaning we refer to the evidence from which it appears that a member of the Tundi group will not marry within that group but is willing to marry from any of the other groups. This suggests the grafting of the Hindu idea of the gotra merely for honorific purposes upon an indigenous exogamous custom. Again the defence witness No. 45 admits the existence of a peculiar marriage, an incident which takes place in the performance of the orthodox marriage ceremony. This custom is called parichan and appears to resemble the ceremony described in Dalton's Ethnology, page 139, as a ceremony in imitation of a marriage by capture. Too much importance must not be attached to the last item, but on the whole there appears to be reason to believe that the community were non-Hindu in origin.
The extent to which the community have become Hindu.
12. It is contended, however, an behalf of the respondent that she has been able to show that the community has become Hindu out and out. The significance of this will be apparent from the judgment of the Privy Council in the case of Fanindra Deb Raikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J.610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.). It is of importance to note here that the two plaintiffs who are members of the same family, Sahdeo Narain and Bhim Narain, would manifestly resent any suggestion that they were not out and out Hindus. In Exhibit 2 they relate a tradition that their ancestor Bhim Rai, nine generations back, came to that part of the country and founded the Raj under the blessing of the deity at Baidyanath, the famous Hindu temple. It is clear also that these two persons took no part in the application for the purposes of amending the plaint by way of pleading a non-Hindu origin.
13. The respondent relies for proof that the community had become Hindu out and out upon a series of decisions in' which one gaddi after another was treated as being governed generally by the Hindu Law. The first of these is a decision of the year 1793 relating to the Pandra gaddi, in which the property is described as held jointly. The decision is referred to in Exhibit 9-D at page 102 of the paper-book, parts I and II. The next decision is of the year 1816 of a case relating to the Jharia gaddi, The judgment is reported in 4. Select Reports at page 72, also in VII Indian Decisions at page 54 [Widows of Raja Zorawur Sing v. Koonwur Pertee Sing 4 Sel. Rep. 72 : 7 Ind. Dec. (O.S.) 54]. At page 75 of the Select Reports the Jharia family are spoken of by the local Court as Rajputs who have come from the Western Provinces and are governed by that law, and that is in fact the Jharia tradition now. On the other hand at page 76 the case was decided in appeal on the ground that the family was governed by the customs prevailing in jungle estates. The next case is a decision of the year 1845 relating to the Gawan gaddi, the effect of which is, for the purpose we are considering, somewhat ambiguous. At pages 222, 223 and 224, part IV of the paper-book, there occur expressions which suggest that it is intended to apply the Mitakshara Law. On the other hand in the concluding portion of the judgment the decision appears to be based upon a custom which formerly was in vogue in the Parganas of Kharagdiha and other jungle and hill tracts. The custom is treated as exceptional. The next decision is of the year 1850 (page 130 of the same volume of the paper-book) relating to the Sarwan gaddi, in which it was held that the daughter's son, who was the then Raja of Tundi and other gaddis, was entitled to succeed. The test of offering Panda, a pure Hindu Law test, was applied--Exhibit Y-4. The next decision is of the year 1862 relating to the Narainpur gaddi--Exhibit L at page 61 of the respondent's portion of the paper-book, in which it was held that one Ahlad Kumari was by the Hindu Law heir to her son. The next decision relating to the Chakai gaddi of the year 1870 is reported as Tekait Doorga Pershad Singh v. Musammat Doorga Koonwaree 13 W.R. 10 : 9 B.L.R. 306 (note), in which both sides admitted that the right of a mother to succeed should be determined in accordance with the Hindu Law. The defendant at a later stage in the case appears to have set up a custom of female exclusion but he was not allowed to prove it. The next decision is of the year 1873 also relating to Chakai--Exhibit 9-C at page 34 of parts I and II of the paper-book, reported also as Tekaet Doorga Parshad Singh v.Tekaetnee Doorga Kooeree 20 W.R. 154. The case went up before the Privy Council in 1878 and the judgment is reported as Doorga Persad Singh v. Doorga Konwari 4 C. 190 : 3 C.L.R. 31 : 5 I.A. 149 : 3 Suth. P.C.J. 540 : 3 Sar. P.C.J. 827 : 2 Ind. Jur. 650 : 2 Shome L.R. 21 : 2 Ind. Dec. (n.s.) 121 (P.C.). In that case also the custom of female exclusion was attempted to be proved. The parties admitted that the family as a general rule was governed by the Mitakshara Law. The next decision is of the year 1874--Exhibit 7, page 48 of parts I and II of the paper-book, which related to the Lachmipur gaddi. Exhibit 7, which is a copy of the plaint, shows that the plaintiff relied upon what he called the usage and family custom and the Mitakshara Law. The expression is somewhat ambiguous. The written statement of the defendant (Exhibit H) will be found at page 38 of part IV of the paper-book. On page 41 it is remarked that it is necessary to follow the Mitakshara Law. The judgment (Exhibit Y) will be found at page 106 of part IV of the paper-book. At page 110 it is stated that the Mitakshara Law admittedly governs the family. The next decision is of the year 1879--Exhibit Y-12, page 174 of part IV of the paper-book, relating to the Doranda gaddi, in which it is said that according to the custom of the country regarding these gaddis it is an ancestral impartible estate and the family are an undivided family governed by the Mitakshara Law. The next decision is of the year 1885 also relating to the Doranda gaddi--Exhibit Y-13 at page 177 of the same volume of the paper-book, in which at page 183 it is said that the maintenance grants are held by the heirs of the grantees under the usual laws and rules prevailing in a family governed by the Mitakshara Law of the Benares school. In 1886 there is a mortgage bond Exhibit U executed by the Rani of Lachmipur in which the power to adopt was said to be in accordance with custom prevailing in a Hindu family and that the sradh of the deceased husband had been performed according to the Hindu Law. In 1887 there was a decision relating to the Pandra gaddi--Exhibit 9-D at page 89 of parts I and II of the paper-book, in which at page 90, it is recited that according to the plaint the brother of the last male holder succeeded as his next heir according to the Hindu Law. The defendant in that case pleaded that there was a family custom of succession. In 1889 there is another decision relating to the gaddi of Lachmipur--Exhibit Y-1, page 112 of part IV of the paper-book, in which the plaintiff used the expression according to the rules of Hindu Law and the usage of the family. The defendant used the expression under the Mitakshara Law. In 1894 there is a decision relating to the Noniad gaddi, Exhibit Y-17 at page 188 of the respondent's portion of the paper-book, also reported as Chhatradhari Singh v. Saraswati Kumari 22 C. 156 : 11 Ind. Dec. (N.S.) 105. The defendant-appellant Kunj Behari Singh is the plaintiff's agent in the present case and he based his case upon the applicability of the Benares school of Hindu Law, page 188 of the paper-book: at page 190 it is said that it is admitted that by custom the tenure is impartible and descends to the eldest son and further that this family is governed by the Law of Mitakshara. In 1898 in a petition for mutation by Pratap Narain Deo of Lachmipur, he claims to have been adopted in conformity with the Hindu religion and law (Exhibit K 9, page 59 of the respondent's portion of the paper-book). In 1911 there is a decision relating to the Serampur gaddi, in which both the plaintiff and the defendant alleged that the family is governed by the Mitakshara Law (Exhibit Y-14, page 189, part IV of the paper-book). The judgment in appeal in this case is reported as Jagdamba Kumari v. Wazir Narain Singh 38 Ind. Cas. 255 : 2 P.L.J. 239 : 3 P.L.W. 437, in which it was conceded that the family was governed by the Mitakshara Law. The effect of this long series of decisions is somewhat discounted by the fact that in several of them special custom was pleaded and in the earlier ones there is some confusion, more particularly in the case of the Lachmipur gaddi between the custom of the family or the locality and the Mitakshara Law, It is common to all these decisions, however, that the burden of proving a special custom is always without question upon the person who asserts it. There is other evidence to prove a general acceptance of Hindu Law. Exhibit E-16 is a letter from the Thakur of Doranda to Pratap Narain inviting him to come and dine with him on the occasion of the sapindi sradh of his brother, a pure Hindu ceremony. In the sale of the interest of the first two plaintiffs which is referred to as Exhibit I, the Rani of Lachmipur is said to have succeeded in the capacity of a Hindu widow. Exhibit E-19 is a letter dated the 10th December 1906, in which Pratap Narain is invited by the Raja of Nowagarh to the thread ceremony of his son. The Telwa gaddi and the Jamatra gaddi also appear to have been admitted in the course of litigation as being governed by the Mitakshara Law, except in the matter of primogeniture [Tara Kumari v. Chaturbhuj Narayan Singh, 30 Ind. Cas. 833 : 42 C. 1179 : 19 C.W.N. 1119 : 29 M.L.J. 371 : 18 M.L.. T. 228 : 2 L.W. 843 : 13 A.L.J. 1034 : 17 Bom. L.R. 1012 : 22 C.L.J. 498 : (1915) M.W.N. 717 : 42 I.A. 192 (P.C.) and Shyam Lal Singh v. Bijay Narayan Kundu 39 Ind. Cas. 36 at p. 37 : 2 P.L.J. 136 : 1 P.L.W. 140 : (1917) Pat. 121]. The witnesses also generally state that they are governed by the Mitakshara Law. The Thakur of Telwa gaddi, plaintiff's witness No. 5, says that his father and his uncle formed a joint Hindu family and that the Benares school of Hindu Law governs the 84 gaddis. The Thakur of Mondro, witness No. 12 for the plaintiff, states that in the Serampur gaddi the Benares school of law prevails subject to family custom. The Thakur of Gawan gaddi, witness No. 15 for the plaintiff, states that the Mitakshara school of Hindu Law prevails in his family and so throughout Kharagdiha. The Thakur of Grama gaddi says that they are governed by the law of Benares. Witness No. 18 for the plaintiff, a member of the family of the Raja of Nowagarh, says that he is a Hindu and that he follows the Hindu Shastras. He is the malik of the gaddi Jamdiha and is the uncle of the plaintiffs in this case. He recognises the desire for a son for the purpose of the offering of pinda by the son according to the Hindu Shastras. The holder of the Rampur gaddi, witness No. 21 for the plaintiff, says, "we follow the Mitakshara Shastra. All the injunctions laid down in the Mitakshara would be followed by us; how can we act against the Shastra". On the other hand there are still, as I have pointed out, some relics of non-Hinduism and there is no evidence that persons who are admittedly pure Rajputs allow members of this community to consort with them. It will be remembered that Dr. Buchanan writing in the year 1807 noticed that the pure Rajputs did not re gard the me mbers of this community as their equals. The community as a whole no doubt are much more Hindu than the family which forms the subject of the Privy Council decision reported as Fanindra Deb Raikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J.610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.). At the same time it would be difficult to find expressly that they have been proved to have become out and out Hindu, They have become sufficiently Hindu to justify the Court in holding that the burden of proving that they have not assimilated the law of adoption, lies upon the plaintiffs who asserted it and that the assertion must be supported by unambiguous evidence such as will bear careful scrutiny.
The case reported as Fanindra Deb Raikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J. 610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.) distinguished.
14. It is of importance to state in detail the grounds upon which we have said that the community with which we have to deal in the present case is more Hindu or rather had become more Hindu than the family which was the subject of their Lordships' decision in the case of Fanindra Deb Raikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J.610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.). The significant evidence upon the point in their Lordships' case was a report by Dr. Campbell in the year 1848 cited at page 477 Page of 11. C.-Ed. Dr. Campbell states: "The Raja could not properly be called a Hindu, although ambitious of being considered within the privileged pale. His family is of the Koch tribe, now, however, designated Rajbunsis, and affecting to be equal to Chhattris although retaining many usages and habits quite irreconcilable with their pretensions. Probably Hindu Law would not be the just medium for a decision on this succession.... Under the Hindu Law I believe that all the sons would be considered illegitimate, in which case the senior Rani might secure a life-tenure of the Raj," It is evident that this description differs fundamentally from any description which could be given of the community with which we have to deal. The parichan ceremony to which we have referred is merely an incident in the marriage ceremony, but it is not itself a form of marriage and there is no suggestion anywhere that at any time the offspring of a marriage performed in the community with which we have to deal would be considered under the Hindu Law illegitimate. It is true that the estates of the community are impartible and descend to the eldest son, but though this form of succession is not expressly dealt with in the Mitakshara, it is certainly not foreign to Hindu Law and is in fact referred to in authoritative Hindu books of law. In Fanindra Deb Raikat's case 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J.610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.) their Lordships also notice that the High Court had erred in referring to a previous case as showing that the family was treated as one governed by Hindu Law. In the case before us, on the other hand, several instances have been placed before us in which members of this community were undoubtedly treated as governed by Hindu Law. Mr. Das has relied, upon the custom of marrying within the gotra, but as we have pointed out, that rule which is not a universal rule among Hindus is followed in spirit by this community, inasmuch as they do not marry within certain groups. A further distinction in the present case from Fanindra Deb Raikat's case 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J.610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.) is this. The main body of the community including the great majority of the gaddis became Hindu at some period of which there is no record. The date of their adoption of Hinduism cannot be placed at so recent a date as in the case of the family which was the subject of the case of Fanindra Deb Raikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J.610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.): it is only in respect of the Lachmipur family and the gaddis adjacent thereto in the Santal Parganas who are, it seems, offshoots of the main body of the community that we have evidence to suggest that the adoption of Hinduism was recent. But in dealing with the custom of the entire community, it is of more importance to have regard to the history of the main body than to the history of these less important branches. After all the question of the burden of proof is not of any very great importance in a Court of Appeal where evidence has been given upon both sides in the original Court. We observe that in the case of Fanindra Deb Raikat v. Rajeswar Das 11 C. 463 : 12 I.A. 72 : 4 Sar. P.C.J.610 : 9 Ind. Jur. 277 : 5 Ind. Dec. (N.S.) 1068 (P.C.) above referred to, there was absolutely no counter-evidence. When we say that having regard to the origin and history of the present community the burden of proving that the right to adopt was hot assimilated was on the plaintiffs, we merely mean that in our opinion it is more probable that this community assimilated the law of adoption than that they did not do so.
Recognition of the adoption and delay in asserting that it was contrary to Custom.
15. The first difficulty which stands in the way of the plaintiffs' case is that it is quite obvious that the adoption took place without exciting any comment of any kind in the community. This is clear from the evidence of the leading witnesses cited by the plaintiff; the Raja of Katras witness No. 2, the Raja of Jharia witness No. 3, the Raja of Talaiya witness No. 17, the Raja of Gawah witness No. 15. All these witnesses appear to be surprised at the suggestion that the fact of the adoption should have given rise to any comment of any sort. The adoption took place as far back as the year 1885. It is true that the adopted son did not take possession till 1898, but even then there appears to have been no sort of comment, and it is by no means clear upon the evidence when the notion of first setting up the plea that the adoption was not in accordance with custom was first conceived; apparently not before 1904. There was no secrecy about the adoption ceremony in 1885 or about the ceremony of installation in 1902. It is clear that invitations were sent broadcast on both occasions. The adoption ceremony took place on the date of a religious festival and thousands of persons attended. Many people were present also at the installation. The taking charge by the Court of Wards in September 1898 was a public act. It is manifest that no sort of secret was made of the adoption, and the fact that no comment was aroused indicates that there was no consciousness in the community that the adoption was contrary to custom.
16. Before proceeding to deal with the evidence in detail, it is desirable to state more fully the circumstances which indicate that there was no consciousness in the community that anything unusual had taken place.
Agreement To Adopt.
17. The first fact is Mahkum Kumari's agreement to take Pratap Narain in adoption in 1885. On the 22nd January 1885 an ekrarnamah of adoption by Mahkum Kumari was duly executed, and much reliance is placed upon the character and relationship of the attesting witnesses to that ekrarnamah. The ekrarnamah was executed by the natural father and mother of Pratap Narain and the attesting witnesses were in the first plane the Inspector of Banka, a public official; and the other witnesses were:
1. Sri Ajit Narain Deo. 2. Ram Lal Misser.
3. Sri Ambarit Narain Singh.
4. Tikaitin Champa Kumari.
18. Sri Ajit Narain Deo was a near agnate of Lalit Narain Deo and occupied a very legitimate chance of succeeding to the Lachmipur Raj, if indeed there was a custom prohibiting adoption; and the argument addressed to us on behalf of the defendant is that it is quite inconceivable that this person, Sri Ajit Narain Deo, should have been a witness to the execution of this ekrarnamah if indeed a custom existed in the family prohibiting adoption in bar of succession by inheritance. Ram Lal Misser is the plaintiffs' witness No. 2 and if his evidence, recorded at page 356 of Volume II of the paper-book, be accurate and reliable, it is inconceivable how he became an attesting witness to the ekrarnamah of January 1885. So also with regard to Sri Ambarit Narain, the Raja of Gomo and the proprietor of one of the 84 gaddis. It is inconceivable that if, as is alleged, the custom set up existed within the Baisi-Chowrasi gaddis, this witness should have been a witnessing party to the agreement in the face of the custom supposed to prevail in the family. Tikaitin Sri Champa Kumari is actually the aunt of the plaintiffs, being the sister of Inderdeo Narain whose father was Sham Narain. She also is an attesting witness to the ekrarnamah, which is a noticeable fact, more especially as she is so closely connected with the Lachmipur Raj and must be deemed to have known the custom prevailing in that Raj tolerably well. Notwithstanding this fact this lady attested the execution of the ekrarnamah which provided for the adoption of Pratap Narain, Mr. Das appearing on behalf of the plaintiffs has had to admit that the Raja of Gomo was an attesting witness to the ekrarnamah, that he attended the adoption ceremony, and that he gave a present on that occasion; and that likewise he attended the installation ceremony which followed in 1902. In fact the only one of the attesting witnesses concerning whom Mr. Das has made any imputation is Tikaitin Sri Champa Kumari; and with regard to this witness Mr. Das alleges that as she receives maintenance from the Lachmipur Raj, therefore she is a partisan in favour of the defendant and is acting in a manner prejudicial to the plaintiffs' claim and the custom which they seek to establish. The comment made by Mr. Das seems to us to be unfair and unreasonable. No doubt Champa Kumari does receive a maintenance grant from the Lachmipur Raj, but this is not unnatural inasmuch as she is a daughter of the house and as such is entitled to some form of maintenance. But this mere fact in itself would not convince us that in the the year 1885 when she was an attesting witness to the ekrarnamah of adoption, she was acting in such capacity for any illegitimate purpose and out of hostility to the plaintiffs; and it is impossible to recognise her attestation of this document in any sense as being prejudicial to the claim put forward by the plaintiffs more than 22 years later.
Presents given at adoption.
19. Exhibit P, which is to be found at page 106 of Volume V of the paper-book, must next be noticed. This document contains a list of presents given by various Rajas among the Baisi Chowrasi gaddidars as well as by others on the occasion of the ceremony of adoption. It is to some extent but not altogether discounted by the fact that in the heading the installation of the god Siva which took place on the same date is also mentioned. It contains the names of about three hundred persons who gave presents to Pratap Narain on the occasion of the adoption. It is needless to go through all the names set out in Exhibit P, but it is of importance to bear in mind the names of some significant members of the Chowrasi gaddis who did in fact give presents upon this occasion. As we have already pointed out, the Raja of Gomo, one of the attesting witnesses to the ekrarnamah of adoption, gave a present to Pratap Narain; so also did the Raja of Katras, plaintiffs' witness No. 2; and what is most significant above all is the fact that the plaintiffs' father Inder Narain Deo of Dharampur also gave a present of Rs. 5 to Pratap Narain on the occasion of his adoption. It seems incredible that if the custom alleged by the plaintiffs prevailed, as they contend it did in the year 1885, that their own father should have presented a gift to the adopted son of Mahkum Kumari on the occasion of the ceremony of his adoption. Exhibit P speaks for itself and it contains the names of many Rajas and Tikaits among the members of the Chowrasi gaddidars; and from it and the gifts presented on the occasion of the adoption of Pratap Narain it will be seen that its contents show an universal recognition of Pratap's adoption without question. In considering Exhibit P and the series of Exhibits referred to as the "Q" series to be found at page 17 of Volume VI of the paper-book, it is necessary to consider the evidence of defendant's witness No. 13, which is recorded at page 38 of Volume IV of the paper-book This witness kept the books of account referred to as Exhibit Q series and also the book referred to as Exhibit P. A suggestion was made that Exhibit P was a fabricated document, though no imputation whatever was made as to the bona fide character of the books referred to as Exhibit Q series. With regard to the allegation that Exhibit P was a fabricated document, we have examined the book for ourselves and we are perfectly satisfied, after a close inspection of the document, that there is no foundation whatsoever for the allegation that it is a fabricated document brought into existence for the purposes of this case. The evidence of defendant's witness No. 13 establishes with a fair degree of accuracy the names of the various Rajas, Tekaits and Babus of the Chowrasi gaddis who contributed gifts on the occasion of the adoption ceremony. Having carefully read his evidence and his cross-examination we have no reason whatsoever for disbelieving the testimony of this witness. In point of fact so many of the Chowrasi gaddidars attended the ceremony of adoption either by themselves or by their agents and contributed gifts on the occasion thereof that it is difficult to believe that there existed any custom in bar of the adoption. A suggestion has been put forward that the presence of so many members of the Chowrasi gaddidars on the occasion of the adoption ceremony was due to the fact that they were misled by the form in which the invitation was issued by Mahkum Kumari and that the form of the invitation led the invited guests to believe that in attending the ceremony, they were attending the installation of Siva above referred to. The form of the invitation that was issued is referred to as Exhibit FF and will be found at page 209 of Volume V of the paper-book. Upon a perusal of that invitation it is quite impossible to conceive that the invitation could have misled anybody as to what was the character of the invitation and as to the nature of the ceremony which they were invited to attend. The invitation was issued in the name of Mahkum Kumari and expressly states that "in compliance with the order of my late husband Thakur Lalit Narain Deo I will adopt a son. Hence this invitation is issued and I request that you will be good enough to attend the celebration." That was the form of the invitation which was issued universally to all the members of the Chowrasi gaddidars. A perusal of this document renders it quite certain that there was no deception or fraud whatsoever in proclaiming to the invited guests that the ceremony they were asked to attend was the ceremony of the adoption of Pratap Narain Deo by Mahkum Kumari, The evidence of defendant's witness No. 97, reported at page 530 of Volume IV of the paper book, leaves no doubt as to the public nature and character of the adoption ceremony. This witness states that over 10,000 people attended the ceremony of adoption; that the members of Mahkum Kumari's husband's family attended the ceremony; that the ladies and Babus of the District were present, and that the local Zemindars were invited on the occasion and attended the adoption ceremony. This witness is wholly independent of the parties. He occupied formerly a position under Government and is now living in the town of Bhagalpur on his pension. He states that the Rani wrote to him asking him to be present at the ceremony of adoption and that he consulted the District Magistrate as to the propriety of his attending. He was the Sub Divisional Officer at the time and on the advice, or by the direction, of the District Magistrate he attended the ceremony, and that after his retirement from the service he became a tutor of the adopted son Pratap Narain by the orders of the Board of Revenue. This witness testifies not only as to the adoption ceremony but also as to the installation ceremony; and he, in his evidence, assures the Court that Pratap Narain has been in possession of the gaddi from or about the year 1900, when he was installed upon the gaddi of the Lachmipur Raj after it was released from the Court of Wards. This witness was also invited on the occasion of the installation ceremony and attended. He mentions a fact which is important, namely, that upon the occasion of the installation ceremony, which will be dealt with in greater detail later, the then Sub-Divisional Officer of Banka was present. The only suggestion put forward by Mr. Das for the purpose of impeaching the testimony and credit of this witness is the fact that at page 531 of his evidence he says: "To my knowledge at the time of the installation ceremony no Raja, or nobleman, or Zemindar of other districts of the Thakur clan was present except the members of the family." To our mind a wrong construction has been placed upon these words, limited as they are to the installation ceremony and not to the adoption ceremony. We think that it may be fairly inferred that the witness intended only to convey that he personally did not know whether any Rajas or Zemindars or noblemen of other districts attended the installation ceremony. But whether the comment of Mr. Das be fair and reasonable or not, it leaves unchallenged the accuracy of this witness' testimony as to the incidents connected with the ceremony of the adoption; and with that question we are now more particularly dealing.
The Marriages of the adopted son.
20. The next point to be considered with reference to the argument of recognition by conduct is the various marriages that were made by Pratap Narain between the years 1895 and 1912. Pratap Narain contracted his first marriage in 1895. He married the daughter of the Pandra branch of the Chowrasi gaddis. The second-marriage was contracted in the year 1900--that was a marriage with the daughter of Bharai, also a Chowrasi gaddi family. The date of the third marriage is unknown but on this occasion he married outside the 84 gaddis. His fourth marriage took place in 1907 with the daughter of Kajoria, who also was one of the Chowrasi gaddidars. In 1909 he contracted his fifth marriage; and on this occasion he married the daughter of the Raja of Chakai, a well-known member of the Chowrasi gaddidars. In 1912 he contracted his sixth marriage and also married upon this occasion a daughter of one of the Chowrasi gaddidars. Thus it will be seen that between the year 1895 and the year 1912 he married five times with members of the Chowrasi gaddi families. If the plaintiffs' case is well founded that a custom exists forbidding adoption, it seems incredible that the gaddidars into whose families Pratap Narain married should have sought him as a suitor for their daughters. But we think that the inference to be fairly drawn from the fact of these various marriages with members of the family of the Chowrasi gaddis is that in truth and in fact Pratap Narain was recognised to be the son by adoption of the Lachmipur Raja, and that by reason of his adoption in the year 1885 there was no bar whatsoever to his contracting marriages with, members of the Chowrasi gaddis. Apparently from the evidence, each of Pratap Narain's marriages was duly celebrated in accordance with Indian customs and the marriages were attended by the families of the various gaddidars. Plaintiffs' witness No. 21, Volume II, page 211 of the paper-book, says: "I saw him (Pratap. Narain Deo) at Pandra Sambandpur during his marriage. I had gone there as I was invited. I heard that Pratap Narain was the adopted son. I also heard that he was the Raja of Lachmipur. I know Pratap Narain as the Thakur of Lachmipur and not as Raja. This was the first marriage of Pratap Narain. The marriage was celebrated with great eclat and the Rajas of Katras, Tundi and all the big Zamindars and gaddidars of our caste assembled there. There was no talk regarding adoption, whether adoption could take place or not in that assembly". The witness was here referring to the first marriage of Pratap Narain which took place in the year 1895, and it is impossible to believe that that marriage could have taken place if in truth and in fact the adoption of Pratap Narain ten years earlier was in violation of the established custom prevailing amongst the gaddidars. We have from this witness, who is a witness produced by the plaintiffs, an emphatic statement that on this occasion the marriage was attended by the Raja of Katras and the Raja of Tundi. The following witnesses also speak as to the various marriages of Pratap Narain at which they attended:
Plaintiffs' witness No. 2, Volume II, page 11 of the paper-book.
Plaintiffs' witness No. 51, Volume II, page 336 of the paper book.
Plaintiffs' witness No. 7, Volume II, page 47 of the paper book.
The Installation ceremony.
21. The next point requiring consideration is the installation ceremony. Pratap Narain attained his majority on the 29th of October 1901 and immediately after he attained his majority the necessary steps were taken to install him on the gaddi of the Lachmipur Raj and he was installed on the 17th of February 1902. The accounts contained in the Exhibit Q series also show that upon this occasion of the installation of Pratap Narain, many gaddidars attended. Mr. Das admits that at least six of the Chowrasi gaddidars attended the ceremony of the installation and amongst these was the Raja of Kurchutta, Lachmipur being a branch of the gaddi of Kurchutta. Naturally great force is laid upon this fact by Mr. Manuk on behalf of the defendant; because if the custom prohibiting adoption prevailed in Lachmipur it would naturally prevail also in the parent gaddi of Kurchutta. But we find on the occasion of the installation of Pratap Narain the Raja of Kurchutta attending the ceremony and presenting a gift to Pratap Narain on the occasion. From Exhibit P-E-2 will be seen the expenses that were incurred by the Raja of Lachmipur in providing for the guests who attended the installation ceremony. Exhibits P-E-2 and P-E-15 will be found at pages 93, 94 and 95 of the paper-book; and from these Exhibits it would appear that the following gaddidars attended the installation ceremony either by themselves or by their agents appointed in that behalf: (1) Katras, (2) Jharia, (3) Pandra, (4) Dooranda, (5) Chakai, (6) Kawakole, (7) Latki, (8) Dureta, (9) Nekpura, (10) Sakh, (11) Askhp, (12) Matiani, (13) Fatipur, (14) Kiajuri, (15) Pachrowki, (16) Mundro, (17) Birni, (18) Churaman, (19) Kisko. The ceremony of the installation, as we have said, took place on the 17th of February 1902 and Exhibit P-E-15 shows the expenses for the day for the maintenance of the guests attending the installation ceremony on the 18th of February 1902, that is the day after the installation took place. Exhibit P-E-13, which has not been printed amongst the papers in the paper-book, shows that a sum of Rs. 1,660 was received from the guests by the Raja of Lachmipur on the occasion of his installation; and Exhibits P-E-11, to be found in Volume III, page 96, gives a list of the gifts made by the Raja of Lachmipur to the various guests on the occasion of their departure after the installation ceremony was concluded in the shape of bigdaghi and travelling expenses. Exhibit P-E-12 shows that in all a sum of Rs. 258 were given as presents to the departing guests. Notwithstanding the denial of the Raja of Katras that he was not invited to attend the installation ceremony, it is noteworthy to observe that in Exhibit P-E 2 the Raja of Katras is shown to have received through Darbari Singh Rs. 10 for his expenses. Therefore it must be taken that he did in fact attend the installation, if not by himself in person at least by his agent. The form of the invitation issued on the occasion of the installation is also of importance, having regard to the argument that was addressed to us by Mr. Das with reference to the form of the invitation issued upon the occasion of the adoption. The invitation issued on the occasion of the installation ceremony is Exhibit A-l and will be found at page 136 of Volume IV of the paper-book. The invitation was issued in the name of Rani Mahkum Kumari, and the last two clauses are of importance for the purpose of showing that no one could have been deceived as to the nature of the ceremony that they were attending. The clauses run as follows:
22. With the favour of Ambica (a name of Parbati) the installation of my son is going to be performed on the auspicious Monday, the 10th of Magh, Shukla Paksh, the later half of the lunar month. Therefore you are requested to grace the ceremony with your presence. The auspicious ceremony of the installation of my son upon the gaddi of this Raj is going to be performed on Monday the 10th Shukla. Gentlemen, come to witness the happy ceremony... as if it was a piece of your own business."
23. With the invitation in that form, the invited guests I have mentioned attended the ceremony, and it cannot be suggested for one moment that they did so in ignorance of the fact that the occasion was with reference to the installation of Pratap Narain in respect of the gaddi of Lachmipur or that if in fact there was a custom prohibiting adoption, they would have attended the ceremony in the numbers they did and in such an open and unequivocal manner, The evidence given by plaintiffs' witness No. 24, Kunj Behari Singh, recorded at page 241 of Volume II of the paper-book, with reference to the installation ceremony is, we think, untruthful. Undoubtedly he went to attend the ceremony with a view of representing the Raja of the Pandra gaddi, but we do not believe that when he discovered that Pratap Narain was an adopted son he withdrew from the ceremony and did not present the gift which he was charged to deliver. This evidence is contradicted most emphatically by defendant's witness No. 44, who says that Kunj Behari attended the ceremony on behalf of the Raja of Pandra and that he witnessed the ceremony and gave neopuri. From the incidents connected with and concerning the installation of Pratap Narain upon the gaddi of Lachmipur we think it may be fairly inferred that in fact there did not exist any such custom as is endeavoured to be set up by the plaintiffs. This concludes the analysis of: what may be termed recognition by conduct of Pratap Narain's position as an adopted son by the various gaddidars of the Baisi Chowrasi gaddis.
Invitations received by the adopted son.
24. We have now to consider the documentary evidence in support of the recognition of Pratap Narain amongst the gaddidars. The fact that Pratap Narain was recognised by them may be deduced from the invitations which he received from time to time as their invited guest. Exhibit B-20, Volume III, page 32 of paper-, book, is an invitation dated the 26th of January 1901 from the Raja of Pandra announcing to Pratap Narain that the auspicious event had taken place of a birth of a son to him. Exhibit E-18 bearing date the 10th May 1904 is an invitation issued to Pratap Narain by the Raja of Pathrowl inviting Pratap Narain to attend at the marriage of a member of his family. Exhibit E-19 dated the 10th of December 1906 is an invitation from the Raja of Nowagarh inviting Pratap Narain to attend with all his paraphernalia on the occasion of the marriage of his, son. Exhibit E-16 is an invitation from the Raja of Doranda dated the 5th of October 1912 inviting Pratap Narain to attend the sradh of his brother who had died. Likewise Exhibit E-17 which bears no date was an invitation from Champa Kumari to attend a Diragawan ceremony. These Exhibits will be found in Volume III, pages 31 and 32. It is not suggested that the invitations comprised in these Exhibits represent all the invitations which were received by Pratap Narain from the other gaddidars or members of their families; but they are adduced as a fair specimen of invitations indicating the recognition by the gaddidars and their families of Pratap Narain as the Raja and Malik of Lachmipur and as such entitled to be invited on occasions of ceremonies performed by the Baisi Chowrasi gaddidars."
The Widow's deed of relinquishment.
25. On the 29th of July 1898 Rani Mahkum Kumari surrendered the interest which she had reserved to herself under the ekrarnamah of the 22nd of January 1885. This deed of relinquishment was in favour of Pratap Narain and the significance attaching to it is in connection with the witnesses who attested its execution. It has been referred to in the proceedings as Exhibit 4 and will be found at page 40 of Volume I of the paper-book. The first attesting witness is Babu Sri Ajit Narain Deo, the same person who was an attesting witness to the ekrarnamah of the 22nd of January 1885 and, as I have already said, a near agnate to the last male owner of the property, Lalit Narain Deo. The deed expressly states that it was a surrender by Mahkum Kumari in favour of her son whom she had adopted; and it is significant that this witness should again be called upon to witness the document executed by Mahkum Kumari in favour of her adopted son Pratap, when he would have had some interest in disputing the validity of the adoption if the adoption was contrary to the custom prevailing amongst the gaddidars. The inference certainly may be legitimately drawn that Babu Sri Ajit Narain Deo knew of no custom prevailing in the Raj of Lachmipur which prohibited adoption. The second witness who attested the deed of relinquishment is Kode Narain, a person with whom Mahkum Kumari and Pratap Narain had previously had litigation. Kode Narain was a tenant on the Lachmipur Raj and in the year 1893 it became necessary for Mahkum Kumari and Pratap Narain to institute proceedings against Kode Narain for ejectment and for recovery of rent. Yet this witness attests the execution of the deed of relinquishment which, as I have said, is a deed in favour of the adopted son; and more particularly is this attestation by Kode Narain of importance having regard to the defence which this witness sought to establish in a suit in 1904 instituted by Pratap Narain against Kode Narain, in which suit the latter set up by way of defence thai a custom existed prohibiting adoption. It will be necessary later to refer in detail to the facts connected with that litigation. Having regard to the subsequent conduct of Kode Narain it is a matter of great importance that he should have been an attesting witness to the deed of relinquishment executed by Mahkum Kumari in favour of her adopted son. The third witness was Sri Bishun Narain Deo, who is also a member of the Lachmipur family. From these facts we think that the inference may not unfairly be drawn that no custom existed in the Lachmipur Raj prohibiting adoption; otherwise it would be difficult to conceive that members of the same family should have been attesting witnesses to the execution of the deed of, relinquishment. The document Exhibit C 2, Volume V, page 15, has also been referred to. We do not think, having regard to the fact that the present suit was pending at that time, that any inference can fairly be drawn from the entry contained in the order-sheet made by the District Judge of Bhagalpur on the 25th of February 1914. It appears from the order-sheet that the younger brother of the plaintiffs desired to contest the Will of Partap Narain notwithstanding the fact that the present suit was pending; and according to the memorandum made by the learned Judge the plaintiffs' younger brother agreed that if allowed to contest the Will of Pratap Narain he would not dispute the impartiality of the Lachmipur Estate nor the validity of Pratap Narain's adoption. Under the circumstances peculiar to the facts of that case we think that it is not a matter from which any inference ought to be legitimately drawn by way of recognition of Pratap Narain's status as Raja of Lachmipur.
Taking charge by Court of Wards.
26. Exhibit 11, Volume I, page 164, is a Very important document. The Board of Revenue were of opinion on the 27th of September 1898 that Mahkum Kumari was mismanaging the Lachmipur Estate and that for the preservation of the property in the interest of the minor it would be necessary to place the estate in charge of the Court of Wards. Accordingly this was done and Pratap Narain was made a Ward of Court; and defendant's witness No. 97, whose evidence has already been referred to, was appointed to be the tutor of the said Ward. What was done by the Board of Revenue was to recognize that Pratap Narain was the validly adopted son of Mahkum Kumari and was entitled to succeed to the property upon her death and that he, being a minor, was entitled to have his property protected in his interest. It would be impossible to conceive that the Board would have made an order of the character they did on the 27th of September 1898, if it was known generally that an universal custom forbidding adoption prevailed in the Lachmipur Estate in common with the other Baisi Chowrasi gaddis; and fairly, we think, it may be inferred that the action of the Board, which has never been impeached or challenged by any person interested in defeating the rights of Pratap Narain, negatives the suggestion put forward by the plaintiffs that any such custom as they now allege ever prevailed in the Lachmipur Raj. This concludes the review of the documents in the case relied upon in support of the recognition of Pratap Narain's position as the validly adopted son of Mahkum Kumari. There was, however, a series of litigations to which it will be necessary to refer. Lalit Narain Deo made his Will on the 12th of March 1870 and, as has been stated, he died childless on the 2 3rd of April 1871.
Sham Narain's suit in 1875.
27. On the 29th of March 1875 a suit was instituted by Sham Narain Deo, grandfather of the plaintiffs, against Thakurain Mahkum Kumari, widow of Thakur Lalit Narain Deo. The plaint in that suit is Exhibit 7 and will be found at page 48 of Volume 1. The contest in that suit was that a custom prevailed in the family, of which Lalit Narain was the last male member, which prohibited females from succeeding to property; and the case put forward by the plaintiff in that suit was that the Will which Lalit Narain had executed on the 12th of March 1870 was a Will which had been procured by fraud and was in fact a forgery. The only custom referred to in the course of the proceedings was a custom barring the right of females to inherit. No suggestion of any kind was made throughout the proceedings so far as the Will of Lalit Narain gave Mahkum Kumari power to adopt a son. One would naturally expect to find if a custom prohibiting adoption did in fact prevail and was universally recognised, that at least it would have been advanced as a strong argument for the purpose of impeaching the genuineness of the Will. The judgment in this case will be found at page 105 of Volume III of the paper-book and at page 111 the learned Judge says: "it appears to me that Lalit was in a position to dispose of the property as he chose. It has been pointed out that since his great-grandfather Roop Narain's time the "family have remained separate; none of Roop Narain's other descendants appear to have survived; none at any rate appear to question the defendants title as sole proprietor, therefore of a separate estate he bad full power to arrange that one of his three widows should succeed him and that by the power of adoption vested in her a male heir might succeed and inherit in its entirety the family estate". From that decision Sham Narain appealed to the High Court at Calcutta; but before the appeal came on for hearing the suit was compromised and two petitions of compromise were filed, one on behalf of Sham Narain and the other on behalf of Mahkum Kumari. The compromise filed on behalf of Sham Narain is Exhibit K-6 and will be found at page 55, Volume V and that filed on behalf of Mahkum Kumari is Exhibit K-7 and will be found at page 56 of Volume V. The basis of the consent arrived at between the parties was that the appeal should be withdrawn and that a lease of certain lands should be granted to Inder Narain son of Sham Narain; and that Sham Narain should receive Rs. 13,765; and that upon the basis of that compromise all disputes between the parties should be settled and the Will of Lalit Narain with all its provisions should be admitted to probate. Exhibit K-7 States distinctly that Mahkum Kumari agreed to the compromise of that suit on the "understanding that there remain no disputes for the future." If such a custom as is now put forward existed, it would be natural and more than probable that it would have been referred to Mr. Das contends that there was no necessity to refer to the question of adoption as at that stage no adoption had in fact taken place; but with that argument we do not agree; because we think that if the custom alleged had any foundation it would be a cogent argument to use for the purpose of impeaching the genuineness of Lalit Narain's Will; and the inference we draw from the fact that no mention was ever made of any custom in the family prohibiting adoption in the course of these proceedings is that in fact no such custom existed.
The Suit between the widows in 1887.
28. In the year 1887 a suit was instituted by Mahkum Kumari against Kadam Kumari, who was one of the widows of Lalit Narain Deo. She was the third and youngest widow of Lalit Narain Deo, and half sister of the senior widow Mahkum Kumari. Mahkum Kumari instituted the suit for the purpose of establishing her title to certain lands and claiming recovery of possession thereof from which she had been dispossessed by the defendant Kadam Kumari. In the defence set up in that suit not only was the genuineness of the Will of Lalit Narain again contested, but also the validity of the adoption of Pratap Narain was questioned; and Pratap Narain was by reason of that issue brought upon the record as a plaintiff party to the suit. Every conceivable opposition that could be offered in that suit by the defendant was availed of and although the factum of Pratap Narain's adoption was hotly contested, it was never suggested in the course of the proceedings that a custom prevailed which prohibited adoption. The main instigator of the defendant in that suit was her brother the Tekait of Goranji, one of the Chowrasi gaddis, who was aggrieved at his son not being adopted by Mahkum Kumari and in is almost inconceivable that if a custom such as is now alleged to exist did in fact exist it would not have been asserted with a view of defeating the rights of one of the plaintiffs to that suit, namely, Pratap Narain Deo. The learned Judge in the concluding portion of his judgment in that case said: "The real cause of the litigation, as I have already said, is the disappointment of the defendant for her foster son, her nephew, not having been accepted by plaintiff No. 1 as a proper child for adoption." This, in our opinion, was a clear recognition of the custom which prevailed recognizing adoption. The plaintiffs succeeded in that suit and from that decision an appeal was taken to the High Court as Calcutta; and the judgment of the High Court will be found (Exhibit 2) at page 151 of Volume V of the paper-book. On appeal every point that was urged before the trial Court was re urged again on appeal before the High Court and the learned Judges say: "But as to the two of the important issues of fact, viz., those regarding the genuineness of the Will of Lalit Narain Deo, and the fact of the adoption of Pratap Narain Deo, the minor plaintiff, he failed in his opening address to create in our minds the smallest doubt as to the correctness of the lower Court's decision in favour of the plaintiffs". Thus we take it that although the Will of Lachmi Narain was contested and although the factum of the adoption of Pratap Narain was congested, the High Court found that the Will itself was genuine and that the adoption had validly taken place. The brother of Kadam Kumari, who was behind her in her defence in that suit, was one of the Chowrasi gaddidars and must have known the customs prevailing in that family thoroughly Well; and if in fact a custom forbidding adoption had prevailed, surely it is inconceivable that he would have omitted to urge that custom as a part of her defence in that proceeding.
The First suit against Kode Narain.
29. In the year 1893 Mahkum Kumari and Pratap Narain, as I have already indicated, brought a suit against Kode Narain, who was one of the attesting witnesses to the deed of relinquishment of 1898. The plaint in that suit is to be found at page 225 of Volume III of the paper book. That was a suit for recovery of possession. The suit was contested by Kode Narain and his written statement (Exhibit H-2) will be found at page 445 of Volume III. In that suit Kode Narain did not set up by way of defence the plea that a custom prevailed which prohibited adoption and that Pratap Narain had no right to maintain the action. Strictly speaking we do not think that it was necessary, having regard to the peculiar circumstances of that case, for Kode Narain to allege the custom for the purpose of defeating the claim of Mahkum Kumari; and that so far as that suit was concerned, no inference can be drawn from the fact that no such custom was alleged.
The Second suit against Kode Narain in 1804.
30. After the deed of relinquishment had been executed in 1898 it became necessary for Pratap Narain to institute a suit similar in character to the one instituted in 1893, and accordingly in the year 1904 a suit was brought by Pratap Narain as the sole plaintiff against a series of tenants of whom Kode Narain was one. In that suit Kode Narain expressly pleaded that a custom prevailed among the Baisi Chowrasi gaddis which prohibited adoption; and that as the plaintiff was claiming in the capacity of an adopted son he was not entitled to succeed in recovering the property in suit, his title being defective owing to the fact that it was contrary to the custom prevailing in the Baisi-Chowrasi gaddis of which Lachmipur was one. The learned Judge said in his judgment: the defendants in their written statement alleged that under the custom as observed in the 84 gaddis of which Lachmipur was one, the gaddinashins are debarred from taking any son in adoption but the defendants have failed to make out any such custom. I hold, therefore, that the plaintiff is the validly adopted son of Thakur Lalit Narain Deo, the late gaddinashin of Lachmipur Estate." That is an express finding of fact by a Court of competent jurisdiction that no such custom as is now alleged prevailed in the year 1904. Mr. Das naturally experiences great difficulty in overcoming this record, but his argument is that this was the defence put forward by a defendant who was a mere tenant as against his landlord; that the tenant was poor, while the landlord was rich and that the tenant was not in a position to fight the landlord in such a manner as to establish conclusive proof of the existence of the alleged custom, That argument does not appeal to us; no doubt it deserves some consideration with regard to the facts of that case, but it must not be forgotten that Kode Narain was a Surajbansi Rajput and it would have been very easy for him amongst his own castemen to have established proof of the custom, if indeed such a custom existed. We must take it that, however difficult it may have been for Kode Narain to establish the custom in that suit, at least he sought to establish it; and there is a finding on the issue by a Court of competent jurisdiction. From the decision of the learned Judge there was an appeal to the Calcutta High Court but owing to some technicality in the non-service of notice to quit, the case was remanded and of the finding on remand we have no record to show what took place. There is no suggestion that the finding of the learned Judge was in any way impeached or challenged so far as the finding of the non-existence of the custom prohibiting adoption is concerned. This is a record which, taking the general trend of the evidence into account, would lead one to hold that it is impossible to believe that the custom which is now put forward ever existed in the Chowrasi gaddis in general or in-the Lachmipur Estate in particular.
The agreement between the plaintiffs.
31. A contest arose between the plaintiffs Sahdeo Narain and Bhim Narain with regard to their right to succeed inter se, namely, whether the younger son of a senior widow could succeed in preference to the elder son of a junior widow. This contest continued for some time and the respective mothers of Sahdeo and Bhim Deo applied for a certificate of guardianship of their children with a view to institute proceedings to recover the property. The certificates were granted to the respective mothers of the plaintiffs Sahdeo and Bhimdeo in 1891; and it was stated in the petition that it was the intention of the mothers to bring suits to recover the Lachmipur Estate. At the time that the mothers of Sahdeo and Bhim Deo applied for the certificate mentioned, Sahdeo was a minor and so was Bhim Deo. Bhim Dao attained majority in 1904 and Sahdeo in 1906. The contest between Sahdeo and Bhim Deo as to their respective rights as sons of the different mothers was finally settled between them by an agreement which is referred to as Exhibit 2 and which will be found at page 31 of Volume I. This document is one of considerable interest, as it first of all states the antecedent history of the Plaintiffs' family and states that they had intended to bring suits for the recovery of the gaddi of Lachmipur but that they were unable to do so owing to want of money. This agreement is dated the 19th April 1803 and as between Bhim and Sahdeo it declares that Sahdeo should be entitled to succeed in preference to Bhim Deo, being the child of the elder widow. In this document, which is of considerable length, no mention is made of any custom prohibiting adoption in the Lachmipur gaddi; nor did Sahdeo or Bhim claim to recover the Raj on any such ground. It is a remarkable omission, having regard to the fact that Kode Narain was one of the persons appointed in pursuance of Clause 20 thereof, as well as Kunj Behari Singh already referred to, as a witness for the plaintiff. This fact is all the more remarkable when it is remembered that in 1904 Kode Narain, when a suit was brought against him by Pratap Narain, expressly took the ground in his defence that there was a custom prohibiting adoption. Amongst the attesting witnesses, we find the Raja of Tundi as an attesting witness to this document which contains no allegation that a custom prohibiting adoption exists in the Lachmipur gaddi; more especially when the object for which this document was executed by Sahdeo and Bhim Deo was to recover the estate, it would be natural to expect that if indeed Pratap Narain could not be adopted by reason of any custom prevailing in the Lachmipur Raj, this fact would have been stated with clearness and precision in the document Exhibit 2.
The Punchnama outcasting the adopted son in 1907.
32. The next document to be referred to is Exhibit A, which will be found at page 1 of Volume III of the paper-book. It is dated the 26th of February 1907, and purports to be a Punchnama outcasting Pratap Narain Deo on the ground that he associated" with a man called Madusudan Singh. It recites that by reason of his acquaintance with Madusudan and eating and drinking with Madusudan, Madusudan being an outcast, Pratap Narain was an outcast unless he was willing to renounce his association with Madusudan. In this document there is no mention whatever that Pratap Narain Deo was not entitled to the Lachmipur Raj on the ground that be was an adopted son; nor is it stated that there was any custom prevailing in the gaddi which prohibited adoption or prohibited succession by adoption. Pratap Narain in this Punchnama is referred to as the adopted son", but it in no way impeaches his title to the property on the ground that the adoption was invalid or contrary to custom. It seems to us that when all the castemen and members of the gaddis joined in executing this document, it is a remarkable thing, to find that no mention is made challenging the title of Pratap Narain on the ground of the validity of the adoption by reason of any custom prevailing among the Baisi-Chowrasi gaddidars. The document is short and clear in its terms and in our judgment fairly conclusive on the matter arising for our determination. The next document to be referred to is Exhibit. I which will be found at page 1 of Volume V. It should be remembered that the present suit was instituted on the 18th of September 1907; and Exhibit I purports to be a deed of sale by the plaintiffs in favour of Puranjan Mukherji. This document was brought into existence 10 days before the suit was instituted and obviously Puranjan Mukherji was meant to finance the litigation which was instituted 10 days later. In this document for the first time in the history of all the documents which have been referred to in this case, we find the custom prohibiting adoption clearly stated and alleged. Puranjan Mukherji, the purchaser under this Exhibit, is the brother of plaintiff No. 3 who stepped into his shoes; and he claims, jointly with the other plaintiffs, to be the owner of a portion of the estate and to be entitled to share in the mesne profits. It is significant to a degree that this deed of sale, executed as it was after the Punchnama of February 1907 and 10 days before the suit was instituted, should contain in express terms for the first time the allegation of a custom prohibiting adoption where adoption would bar the right to succeed by inheritance. At line 55 it is stated that no proprietor of an estate or gaddi has any right to make an adoption and that if in contravention of the custom and established practice any owner of an estate wants to adopt a son, such adoption shall be invalid. This recital is more extensive than the custom which is now sought to be established, because the recital contains a prohibition against general adoption. We feel satisfied that this recital was inserted in this deed of sale mainly for the purpose of laying a foundation for the maintenance of the present suit, which was then in contemplation of the parties and which was instituted immediately thereafter. The recital contained in Exhibit I is at variance with the whole scope of the recitals contained in Exhibit 2 which was an agreement between Sahdeo and Bhim settling their rights of ownership and priority of claim. By a deed of the 5th of May 1914 the interest which Puranjan Mukherji purchased under the deed of sale of the 18th of September 1907 became vested in his brother who is now the third party plaintiff. These are all the documents referred to in the course of the argument before us touching the question of the recognition of Pratap Narain's title as an adopted son. We think that, reviewing these documents and scrutinising them, coupled with the actions and conduct of the parties from the year 1875 down to the institution of the present suit, it is clear that no question arose, nor was any challenge made, as to the right of Pratap Narain to succeed to the Lachmipur Raj as an adopted son.
33. The above stated facts make it clear that the consciousness of the community had not in any sense been aroused by the adoption.
The suit a result of a combination of speculators and malcontents.
34. Before proceeding to consider the direct evidence in the case, it is of importance to state shortly the history of the inception of this suit. It will be remembered that Sham Narain's contest of the Will had ended in a compromise; that compromise resulted in a grant of land in favour of his son Inder Narain. Inder Narain therefore naturally did not contest the adoption. Inder Narain died in 1891, leaving two sons, the plaintiffs (minors); the plaintiff Bhim Narain did not attain majority until 1904 and Sahdeo not until 1906. Their mothers, however, had contemplated action on their behalf in 1898. Joyanti Kumar Mukherji, who eventually joined in the suit and appears to have financed it, says that he was first approached in the matter in 1902. In 1903 an elaborate agreement was drawn up which provided for the employment of a large number of persons for the purpose of conducting the litigation (Exhibit 2, parts 1 and 2 of P.B., page 31). The combination included persons who had been dismissed from the service of the Lachmipur Estate and refractory tenants. In 1907 Pratap Narain was outcasted by the Baisi-Chowrasi gaddidars upon his refusal to give up the employment of one Madusudan Singh who, with his father, had been outcasted (Exhibit A, Pt. 4 of P.B., p. 1). The Raja of Jharia among others appears to have taken a leading part in this matter of the outcasting. It was at Jharia that the plaintiff Sahdeo appears to have come to a final arrangement with Joyanti Kumar Makherji for the purpose of financing the case (P.W. No. 29, P.B., Pt. III, p. 267). The suit was instituted in September 1907. When cross-examined about the outcasting the Raja of Jharia tried to make out that he had nothing to do with it, although the weight of the evidence is distinctly in favour of his having taken a leading part (P.W. No. 56, Pt. III, P.B., p. 347, and D.W. No. 93, Pts. V-VIII, P.B., p. 503). Other gaddidars such as Telwa also appear to try to conceal the fact and to minimise the importance of the outcasting. The Raja of Palganj, however, expressly states that since the outcasting the Raja of Jharia and others are on inimical terms with Pratap; and Mundro says the same thing. The indications, therefore, are that the suit owes its inception to a combination of speculators and malcontents, a combination which took advantage of the opportunity arising out of the ill-feeling caused by Pratap's refusal to submit to the wishes of his community in the matter of Madusudan Singh. The principal witnesses, whose evidence we shall have to consider, were persons who took part in those proceedings against Pratap. Their statements upon the question of the custom, therefore, cannot carry the same weight as if the circumstances which we have above related had not occurred. Too much importance, however, must not be attached to these considerations, for a large number of the witnesses for the defendant also took part in the outcasting.
The Case of conspiracy against The Raja of Jharia.
35. We have been asked to find that the Raja of Jharia actually personally organised a conspiracy for the institution of a false case. The evidence of this rests entirely upon the testimony of a man named Petru Singh (D.W. No. 90, Pts. V--VIII, P.B., p. 482). This story is uncorroborated, and from Petru Singh's own account of himself it is clear that in the absence of corroboration' his account of the matter cannot be accepted. The detail of his account is improbable and his story is inconsistent with the evidence of Joyanti Kumar, to the effect that it was Petru who first suggested to Joyanti Kumar the taking up and the financing of this case. Having regard to the fact that the financial arrangement appears to have been settled finally at Jharia, it is probable that the Raja of Jharia then agreed to support the allegation of custom by his evidence; but that is all that can be said.
Kode Narain An Agent Of The Plaintiffs.
36. There is one minor matter in this connection, that is that Kode Narain, the refractory tenant who first put up the custom in 1904, in spite of the fact of having been a witness to the widow's relinquishment, acted as one of the plaintiffs' agents in this litigation.
Oral Evidence of custom.
37. We proceed next to consider the oral evidence which was offered to prove the custom. The evidence is very voluminous, but Mr. Das on behalf of the appellant asked us to consider the oral evidence of some 12 witnesses only, stating that if we were not satisfied with that evidence he did not ask us to rely upon the other oral evidence in the case. The first of these witnesses is the Raja of Tundi. His evidence is first that "there is no custom of taking a child in adoption amongst us." Now the custom stated in this form has now been abandoned. He is then asked, "if adoption at all took place, would you recognize it?" He answers, as there is no custom of adoption amongst us, therefore how can it be recognized?" which is a very equivocal answer and does not indicate a consciousness of a custom against inheritance by adoption. In cross-examination he says, "that no question about adoption has ever arisen to his knowledge", that he is not aware of the object of adoption and knows no reason for the custom. When asked whether he would go if he was invited to Lachmipur, be said "that he would decide after consulting." The next witness upon whom we are asked to rely is the Raja of Katras, witness No. 3. In answer to the question, whether there was any custom forbidding adoption, he replied that adoption had never taken place. When asked "if any adoption is made in your clan, would you recognise it"; he replied "our elan does not do so; if in future such occurrence takes place our clans would consider about it." The question was repeated and ho answered "if our clan accepts it I shall recognise, otherwise not." He states in cross-examination that the question of adopted son had never arisen. When asked "was it ever said whether a son can or cannot be adopted"; the reply was "never." He appears to have sent a present through a servant at the time of the adoption ceremony; and he claims that the castemen have the power of deciding either for or against a claim to succession. It is clear from his evidence that the fact of Pratap being an adopted son made no social difference to him at all. On a previous occasion this witness stated that there was a custom of adoption in the family, see Exhibit M-3 at page 59 of the 4th part of the paper-book. The evidence that he made this previous statement was not discovered till after his death and he was not confronted with it; and we have for that reason excluded it from consideration. It may be noted that Mr. Das contends that Exhibit M-3 is susceptible of interpretation in his favour. It certainly is somewhat ambiguous. Apart from that the result of Katras's deposition is very equivocal. The next witness is the Raja of Jharia. He gives clear evidence that there is no custom of adoption, a statement which is now given up by the appellant. In reply to the question "if any son is adopted, is he entitled to succeed"; he answers "there is no custom of adoption at all, how can he get it"? This witness is able to rely upon two instances in his family where adoption might have taken place but no adoption was made. His cross examination discloses great ignorance as to customs and incidents applicable to the other members of the community other than himself. He says that he does not know the custom or practice of the Lachmipur family. The next witness is the Raja of Palganj, witness No. 11. Unfortunately the question asked him about custom was not precise. He was asked "if any malik among the 84 gaddis died sonless, is there any custom of adoption?" When confronted with the statement of the Raja of Katras in the previous case (Exhibit M-3) to the effect that there was a custom of adoption, the witness replies that he cannot say whether the statement is true or false; be said that he never heard any talk with reference to the adoption but gives evidence to the effect that the Raja of Jharia and others are on inimical terms with Pratap Narain Deo It is a statement which certainly affects the value of the evidence given by the Raja of Jharia; The next witness is the Raja of Gomoh, witness No. 17, a young man of twenty-two. Here too there was a want of precision in the question asked, and the answer consists of a statement of a general custom against adoption; a general statement which has, as I have said, been abandoned. Until cross-examined he does not state the specific custom which we are asked now to hold He cites several instances in support of his opinion; on the other hand, his evidence is rendered almost valueless by the fact that his father was present at the adoption ceremony and was a witness to the agreement between Mahkum Kumari and Pratap's natural father prior to the adoption. The Rani of Serampur, witness No. 29, is also relied upon, but she too states the custom in general terms and says that there is no custom of taking sons in adoption. Her opinion is based entirely upon an alleged incident, namely, the intention of her husband to adopt, with which we will deal later. It is sufficient here to say that it is difficult to believe that she remembers what bad taken place, as she says, 20 years before. In cross-examination she destroys her evidence in chief by saying that she does not know what customs prevail. She is the daughter of Sham Narain, who contested the Will in 1375-76 and is the plaintiffs' father's sister. There is then the evidence of Ghanti, witness No. 9. He is not a Raja and is comparatively an insignificant person. He too speaks of a general custom and bases his opinion on the bare fact that he had never seen or heard of any such adoption. He says that unless there be a custom of adoption, there cannot be an adoption at all and that nobody has ever told him that there is such a custom. He is a young man of only 25 and it is clear that his evidence is practically valueless. Then there is the evidence of Karainpur, plaintiffs' witness No. 10. He gives specific evidence of the prohibition of adoption, but he bases it upon evidence that two assemblies of the Baisi-Chowrasi took place. After a prolonged cross-examination he is compelled to admit that his statement in regard to the first assembly at any rate is false (p. 99, Pt. III, of the P.B.). In regard to - the second assembly his statement conflicts with the evidence of Ghanti, Katras and Jharia. He also says that he cannot say about the rule of succession of all the gaddis. In a previous deposition he had said that he knew of no custom of Surajbansi Rajputs outside Serampore (page 99, line 24). His evidence, therefore, amounts to, very little indeed, even if it is not treated as totally discredited. The next witness is witness No. 12, Thakur of Mundro. Here again he is not asked the precise question. He gives false evidence in saying that Protap Narain could not be married in the community and in denying that be belonged to the caste before adoption. When asked to give a list of the customs he does not include in the list the alleged custom relating to adoption. The next witness is witness No. 15, the Tikait of Gama. Here too the precise question is not asked him. He says that there never was any talk anywhere about adoption and that he would not be surprised to hear that the adoption prevailed in Katras and that he does not know whether adoption prevails in that family or not; he also does rot know what the custom is in Lachmipur. The witness Durbijar makes a statement in general terms and gives two or three instances. The plaintiff Sahdeo married the witness's daughter's daughter two months before the witness gave his evidence (paper-book, part III, page 281, line 31, and page 284, line 28). He is the servant of the Tikait of Gama (P.W. No. 15). One source of his knowledge was said to be a discussion with Thakur Prayag Singh of Khaskiridi some 15 or 16 years before. Thakur Prayag Singh was dead at the time, for the witness subsequently said that he had died some 25 years before (page 281, line 49). Another source was a talk said to have taken place at Kishgo some 25 years before. It is curious, however, that he cannot say whether there is a custom of female exclusion at Kishgo or not. Another source was the alleged proposal to adopt at Serampur which will be dealt with later. He can give no opinion upon the question of the exclusion of females. The next witness is Bhano Singh, an old man of 70 and an uncle of the Tikait of Chakai. His granddaughter is the wife of the plaintiff Sahdeo (Part III, p. 295). He makes the general statement that adoption is forbidden. He is the only one of the witnesses on whom Mr. Das has asked us to rely who suggests that at some time there was a formal decision on the subject. He says, old people decided that agnates should succeed and hence adoption was forbidden." He can't say where he heard this, and when pressed it is clear his opinion is based on the fact that there had been no adoption in Chakai. Finally there is the evidence of the plaintiff Sahdeo. He makes a clear statement of the custom which we are now asked to find. He is the only witness who makes a clear and definite statement of this custom in examination in-chief. The Subordinate Judge notes that the witness took much time to give answers. Some of the plaintiffs' witnesses support the defendant (P.W. Pt. III, p. 127). The Tikait of Doranda (witness No. 41) said he could not say that an adoption by one of his predecessors would have been invalid. P.W. No. 14: This witness also states at Volume II, p. 128, line 40, "I can't say what is the custom of other maliks" "I can't say if the custom of adoption prevails in other gaddis." Witness No. 19 says a widow can adopt with permission (Pt. III of P.B. p. 195).
38. The principal witness cited by the defendant to prove affirmatively that there was no such custom, the Raja of Nowagarh, may perhaps be shown to be friendly to Pratap, but there is no getting over the fact that the defendant has been able to produce a large number of the members of the community who deny that there is any such custom. On the plaintiffs' side 21 gaddidars gave evidence, while on the defendant's side there were 36. This more than balances the fact that 32 maintenance holders supported the plaintiffs, while 19 supported the defendant.
39. The only witness who suggests that the custom was ever recorded anywhere is plaintiffs' witness No. 21 (Pt. III of P.B. 207 at pages 217 and 218). Mr. Das did not ask us to rely upon this witness and no document was produced.
40. Apart from the detailed criticism to which the evidence of the witnesses has been subjected, it is manifest that there never has been any meeting of the community at which this matter has been settled; there never has been any written record of any such custom, or even any talk on the subject. Nothing appears to have ever been said or written on the subject of this custom ante litem motam.
41. There is some room for doubt whether there is any consciousness of uniformity of custom in the matter of succession in this community at all, much less any consciousness even now that inheritance by adoption is forbidden. P.W. No. 50, the malik of Jamtara, says he does not know about Sarawn, Narainpur, Lachmipur, Pandel and others and mentions a variety of customs elsewhere. In the matter of consciousness of uniformity it is important to note that the gaddidars whose seats are in the Manbhum district are admittedly governed by a different system of law, namely, the Dayabhaga, and that while special custom appears to have been frequently pleaded in previous cases by different gaddidars, it does not appear to have been previously pleaded that there was any one custom common to all the gaddis, on the contrary in some oases, such as the Serampur case, it was asserted that the custom pleaded (in that ease, the exclusion of women) was not uniform throughout the community [Exhibit Y14 and Jagdamba Kumari v. Wazir Narain Singh 38 Ind. Cas. 255 : 2 P.L.J. 239 : 3 P.L.W. 437].
42. In the circumstances it may be doubted whether it would be permissible to infer the existence of the custom from circumstantial evidence. It is, however, as well to proceed to deal with the circumstantial evidence which has been offered to prove the fact of the custom. This evidence has been divided for us by Mr. Das under the following heads:
(a) Instances in which adoption did not take place where there was occasion for adoption.
(b) The fact that no adoption has yet taken place among the gaddidars.
(c) Evidence of gaddidars and their widows not adopting though personally anxious to do so.
(d) Evidence that an intended adoption was opposed by the heirs at-law upon the ground of custom.
(e) Instances of boys being introduced into the family and being passed off as natural born sons, a proceeding which would be unnecessary if adoption was permitted.
Instances of agnatic succession.
43. Under the first head (a), there are 44 instances in which a gaddidar died sonless and was succeeded by an agnatic relation. Forty-two of these are mentioned by the learned Subordinate Judge, but he has omitted two by oversight from the genealogy of Lachmipur. In two cases he has also given an incorrect account of the evidence. The Kewal case was an instance of a brother's succession and the Jamdiha case was an instance of succession by a son.
Lachmipour.
44. It is desirable to deal with the case of Lachmipur separately. The genealogy of Lachmipur will be found in respondent's portion of the paper-book, Exhibits Dand D-l, pages 23 and 24. Another genealogy is annexed to the written statement of Mahkum Kumari in the suit of 1875 (Exhibit H-l of Part IV of P.B., p. 44). Four instances of agnatic succession have occurred. These four instances are the succession of Bhikam Deo to his brother, of Lachmi Deo to his brother, of Karamdeo to his brother; and Lochan Deo to his brother. So far as the first three are concerned, it must be remembered that Rup Narain Deo was recognized on the gaddi in 1776 and he had then only recently obtained recognition, if indeed he bad already done so as a Rajput. The fact that his grandfather's brother Lachmi Deo did not adopt is not therefore very material for the determination of the question whether, when the family became Hindu, the law of adoption was not assimilated. For at that time the family did not claim to be Hindus. So far as Lochan Deo is concerned the evidence is (Exhibit Y, P.B. Pt. IV., p. 110) that Lochan was living in commensality with his brother the last holder, Girwar Narain. It was therefore not unnatural that Girwar Narain did not adopt; moreover Girwar Narain died at the early age of about 35 (D.W. No. 38, P.B., Pts. V to VIII, p. 96). These instances of omission to adopt in the Lachmipur family differ very materially from the adoption made by Lalit's widow which is the subject of the present suit. When Lalit executed the Will authorising his widow to adopt, he had no brother living; his nearest relation was Sham Narain and he was very distant. In order to arrive at the common ancestor there are seven degrees in ascent and from the common ancestor five degrees in descent to Sham Narain.
Other instances tabulated
45. The remaining 40 cases have been tabulated for us by Mr. Manuk on behalf of the respondent. In 12 instances the fall brother succeeded; in 13 the nephew, and in 4 the first cousin. In two instances, Narainpur and Kodarma, the person adopted was a son who succeeded his father. In two instances the widows are still in possession of the estate; in two instances, Sarawn and Chakai, it is a doubtful question whether there was in fact an adoption or not. These cases will be dealt with later. In one instance, Punasi, the widow wanted to adopt but was not permitted by the Court of Wards to do so, as it was doubted whether her husband had left authority. In one case, Serampur, the last holder was a lunatic and in two cases the widow had posthumous sons and in the 40th case the last holder died a minor. The whole of this evidence of course is open to the general criticism that in every instance there may have been other circumstances which prevented adoption. Certainly in the 29 cases out of the 40 in which there were near relations entitled to succeed, the obvious alternative to the hypothesis of a custom would be the probability that considerable pressure was exercised to dissuade the gaddidar from making an adoption. Having regard, moreover, to the large number of families involved no substantial inference can be drawn from the mere number of instances of agnatic succession. Instances of proposals to adopt not carried out.
46. We take next heads (c) and (d), that is to say, evidence that gaddidars or their widows did not adopt though personally anxious to do so, and of opposition on the ground of custom. Originally the plaintiffs put forward seven instances under these heads. Of these two, Doranda and Pokhuria, which are dealt with by the Subordinate Judge, were not mentioned to us by Mr. Das. Of the remaining 5, one, namely Noniad, Mr. Das did not press when it was pointed out to him that it depended upon the evidence of a single witness, one of the agents of the plaintiffs. There remain four instances, Pandra, Serampur, Punasi and Telwa. Pandra.
47. The Pandra instance depended upon the evidence of a single witness who has not been believed by the Subordinate Judge. The witness says that Rani Hingan Kumari who was his aunt wanted to take a boy in adoption, "but we all told her that when there are your Pinda offerers living why should you take a boy in adoption." It appears (Pt. III of P.B. p. 216) that the instance spoken of by the witness took place over 40 years before, when he was only 18 or 14 years old; and a perusal of his answers made to questions in re examination (page 219) makes it clear that the Subordinate Judge was quite right in disbelieving the witness.
The next instance is of Serampur. Serampur.
48. This appears to have been originally put forward on behalf of the plaintiffs in this manner. The plaintiffs' witness No. 12 (Part III of P.B., p. 113) said that the Rani after the death of the last holder wanted to adopt. Witness No. 15, however, denied that the Rani ever wished to adopt. This story appears to have been abandoned, for the Rani herself (P.W. No. 29) was never asked any question on the subject in examination-in-chief. In cross-examination, however, (page 271) the Rani put forward a story that some 20 years before, her husband had said that he wanted to adopt but that the Zemindars prohibited him from doing so. The same story appears to have been told, by P.W. No. 32 (page 277) in examination-in-chief. From page 282 it appears that the Raja of Serampur, at the time when he is said to have thought of adopting, was only some 23 years old and that he had shortly before married a second wife presumably with the hope of getting a son. The story is, therefore, improbable. The witness Todar (P.W. No. 15) is said to have been present, yet he had given evidence to the effect that there had been no talk about the custom of succession at Serampur before the death, of the Raja. The plaintiff Joyanti Kumar (P.W. No. 40) put forward, a third story to the effect that the Raja of Serampur had mentioned to him an intention to adopt in the course of conversation. He says that it was in 1905, though it was dear from the judgment (Exhibit Y-14) that the Raja became a lunatic in that year. The fact of lunacy was denied by Joyanti, a denial which is clearly false, and he is of course a most interested witness. In all the circumstances we are of opinion that the Subordinate Judge was quite right in refusing to accept Serampur as an instance.
Punasi
49. The next instance relied upon is that of Punasi. It appears that in 1890 the widow of the last holder wished to adopt. The proposal was submitted for the sanction of the Court of Wards, a sanction which was eventually refused upon the ground that the widow's power to adopt rested upon an alleged verbal authority given many years before by the last holder; that the proposal to adopt was actuated by a quarrel with the reversioner; that the adoption was likely to be contested and that the result of the contest would be un- certain. The correspondence on the subject will be found in the Exhibit E series (Pt. IV of P.B., pp. 25--30.) Exhibit E 9 read with Exhibit E-8 indicates that enquiry was made into the objection to the adoption said to have been contemplated by the reversioner. There is nothing in the correspondence to suggest, however, that any person ever made any objection upon the ground of custom. We are asked to infer that objection was made upon the ground of custom from an answer given in cross-examination to a question asked from Lachmi Kumari, the mother of the reversioner who objected in that case. In the examination-in-chief this lady had said that there was no custom prohibiting adoption. In reply to a question in cross-examination, as to whether the last holder could have adopted she replied, "no, I was a Hukdar, how could he"? This was a very equivocal answer and it would be impossible to infer from it that she meant to imply the existence of the custom which she had denied in chief, a denial which she re-affirmed on the following day on re examination (page 191). We have been referred to her re-examination (page 202) and have been asked to say it amounted to a lame attempt to get rid of her previous evidence. We understand her explanation to mean that after the Court of Wards had refused leave to adopt and when the widow had no authority, she did not see how an adoption could take place. It is sufficient to say that if, when the proposal to adopt was submitted to the Court of Wards, objection had been made upon the ground of custom, some evidence that such an objection had been made would have been available and it would not; have been left for us merely to proceed by surmise upon an equivocal answer made by a lady in the course of a protracted cross-examination.
50. In this connection the evidence of D.W. No. 91 is very material because he is the Tikait of Pathrowl and gaddidar. His evidence will be found at page 489 of Volume IV. He states that there is no prohibition against adoption amongst the Chowrasi gaddis and that it is open to a widow to adopt if she has permission from her husband to do so. His evidence is material, read in conjunction with Exhibits E to E-13, because he was the reversioner who would be entitled to succeed to the Punasi gaddi if no adoption took place, and he was the reversioner from whom the Board of Revenue expected opposition; but he admits in a sentence that if the husband of the Rani had given her permission to adopt then any adoption made by her would have defeated his rights as a reversioner to succeed to the Punasi gaddi.
Telwa.
51. The last instance relied upon is that of Telwa. This instance depends upon the evidence of a single witness. The evidence consists of an answer given in cross examination to the effect that the present Thakur of Telwa prevented the last holder of the gaddi of Telwa from adopting, by saying to him "why should you adopt when I am living"? The answer was given to a question which refers to the alleged custom prohibiting adoption. In answer to a question in re examination which immediately followed, the witness said that if in spite of the protest the last holder had a mind to adopt he could have done so, and when the evidence was read over the witness repudiated the answer upon which we are asked to rely to the effect that the last holder was prevented from adopting. Now the present Thakur of Telwa gave evidence in the case and was asked no question about this matter; and it appears from the Thakur's evidence that the last holder died when he was a minor. The story therefore that the last holder was prevented from adopting is quite incredible. It is impossible to accept Telwa as an instance. The evidence under heads (c) and (d), therefore, comes to nothing at all.
Instances of adoption.
52. We proceed now to consider the evidence under heading (6) to prove the fact that no adoption has yet taken place among gaddidars. It is true that the majority of the plaintiffs' witnesses state that there has been no case of adoption, but the plaintiffs' evidence is not entirely uniform on the subject; for instance the plaintiffs' witness No. 19 says that he had heard that there had been adoption in several gaddis, and similar evidence was given by P.W. So. 22. The defendant-respondent on the other hand put forward nine specific cases of adoption. Of these three have not been shown to be cases of adoption by gaddidars; I mean the three cases of Pachhette, Kunda and Doranda.
Doranda
53. The Doranda instance was a case of an adoption by the holder of a maintenance grant, and even if we were to hold that it had been proved, it would have very little bearing upon the case. It was, however, supported by the evidence of the brother of the boy who was taken in adoption, the defence witness No. 80.
Pachhette,
54. In the case of Pachhette the right to adopt and the fact that adoption has taken place is admitted. Pachhette is not one of the Baisi Chowrasi gaddis, but the fast that the practice of adoption is a recognised practice in that estate is of significance. In 1839 Government instituted a general enquiry in regard to customs prevailing in the chieftainships of that part of the province. There were parwanas issued which were expressed in general terms (Ex. G-2, P.B., Pt. 4, p. 35). In reply to these parwanas Katras, Jharia, Nowagarh, Tundi, Nagarkiari and Jaynagar all replied to the effect that Pachhette is the head of all the Zemindars and that the customs prevailing in Pachhette in the matter of succession governed also the succession in that other Zemindaris. On the other hand the custom of adoption was not expressly mentioned in the course of that enquiry, and the incident which gave rise to the enquiry suggests that the main question was the question of impartibility. But the fact that the express question asked was "was not the family usage the same as in Pachhette" and the reply was uniformly in the affirmative, is of significance for the custom of inheritance by adoption in Pachhette is fully established.
Kunda.
55. In the case of Kunda, the fact that an adoption took place in 1816 is clearly proved by Exhibit E-15, Pt. 4 of P.B., p. 30. In one passage in the judgment in the Doranda case (Exhibit Y-12 and Exhibit Y-13) Kunda is described as one of the Kharagdiha gaddis, but in the list of gaddis given at a later part of the judgment Kunda is not mentioned. On the other hand Kunda is in the same district as is the majority of the other Kharagdiha gaddis, the district of Hazaribagh, and it is mentioned in the judgment [Exhibit Y-15, Pt. 4 of P.B. at page 227] as one of the Zemindaris, the custom in which would naturally be the same in the matter of succession as in the Baisi-Chowrasi gaddis.
Pandra.
56. Of the remaining six instances, the Pandra instance is not really very relevant. Pandra is one of the Baisi-Chowrasi gaddis. The instance relied upon, even if it be held to be proved, is an instance of a member of the Pandra family named Prohlad being taken in adoption by some other family. It is not known whether this other family belongs to the Baisi-Chowrasi or not. Shortly, the evidence upon this point consists of a petition, Exhibit B of the year 1840 (Pt. 4, P., B. p. 6), complaining to the Government of a partition of the Pandra estate which had been effected by a Court in the year 1793. The petition recites that Prohlad, one of the three sons of a holder of the gaddi named Norendra Singh, had been adopted away from the family. On the other band, there appears to be a reference in a subsequent litigation to the fact that Prohlad's widow got a share. It is difficult to understand how she could have got a share if Prohlad's adoption had been a regular one. Several defence witnesses Nos. 43, 44, 47,51, 63 and 79 mention the tradition that Prohlad was adopted, but it may be that the source of the tradition is the statement in the petition (Exhibit B) the meaning of which is not quite clear. Having regard to the fact that the instance, even if proved, has no real bearing upon the question we have to consider, we are of opinion that the evidence upon this point does not merit consideration.
Chakai.
57. The next instance we propose to deal with is the instance of Chakai. This adoption, if true, took place about the year 1772. The direct evidence of this adoption is the evidence of Chandi Prasad, D.W. No. 43 (Pts. 5-8 of P.B. p. 104). The adoption was put forward in a litigation the result of which is reported as Tekaet Doorga Pershad Singh v. Tehaetnee Doorga Kooeree 20 W.R. 154. The plaintiff in the case was named Durga Singh; the defendant was one Durga Kumari. Durga Singh's case was that Durga Kumari was not entitled to inherit inasmuch as females were excluded by custom, and upon the issue whether there was a custom excluding females the question of the manner in which one Dhara Singh had succeeded was relevant. Durga Singh's case was that on the death of the Tikait Hira Singh, Dhara Singh was the nearest agnate and that the widows of Hira Singh abandoned the succession in favour of Dhara Singh. The defendant Durga Kumari's case on the other hand was that Dhara Singh was not the nearest agnate but was the son of the junior branch of the family, and that he had succeeded by reason of an adoption by the widows of Hira Singh. Durga Singh's case was disbelieved by the Calcutta High Court in appeal and we do not know whether Durga Kumari's case would have been accepted by the Court or not; but there is the fact that in the course of that case evidence was given in the year 1871 by Chooni Pandey, who described himself as the old family priest, to the effect that Dhara Singh was adopted by the younger of the widows. Mr. Das has asked us to say that this witness must have meant by the word adopted an instance of fosterage, but this is not how we read the evidence; the natural meaning is that the youngest of the widows adopted after her husband's death, though that is not expressly mentioned. We are not concerned with the question whether the adoption was Kritrim or not. It suffices to say that the adopted son inherited, and inherited by virtue of his adoption. So far as the alternative pedigrees in the case are concerned, the pedigree which was then put forward by Durga Singh is entirely unsupported by any evidence while the pedigree put forward by Durga Kumari is supported by the evidence of Chandi Prasad. Chandi Prasad's evidence on the subject has been attacked, first, upon the ground that his father put forward a different pedigree in the case to which I have referred. That, however, is not a substantial criticism because it was to the interest of the father to put forward the pedigree which he did in that previous case. The other criticism, of the evidence is the fact that in a previous deposition (Exhibit 12A) Chandi Prasad stated that he knew the genealogical table from the time of Mit Narain Singh. Mit Narain Singh was the son of Dhara Singh. His previous deposition Exhibit 12-A was not, however, put to Chandi Prasad, and it is quite clear from the nature of the case, which is reported as Ravaneshwar Prasad Singh v. Chandi Prasad Singh 12 Ind. Cas. 931 : 38 C. 721, that it was not necessary for Chandi Prasad for the purpose of that case to go further back than Mit Narain. There is nothing in his deposition to show that he did not know the genealogy prior to Mit Narain. A large number of the defence witnesses were cross-examined about this adoption, Nos. 47, 56, 57, 63, 71, 72, 75 to 78 and 79. Two of these are related, or connected, with Chakai, viz., Nos. 78 and 79. They all support the factum of the adoption and there is no evidence on the other side. We concur, therefore, with the Subordinate Judge in holding that this adoption has been proved.
Chandan.
58. The next instance we propose to consider is the instance of Chandan. This adoption is said to have taken place about the year 1860. One Jaimangal is said to have been adopted. The adoption was sworn to by the widow of Jaimangal's son; she says that she heard about it from her deceased husband and his mother who is also dead. It was a case of an adoption by Jaimangal's uncle, Jaimangal being preferred to his elder brother Sib Narain. The uncle died sonless. We are of opinion that the learned Subordinate Judge was right in accepting this evidence which was not contradicted. The adoption was put to the plaintiffs' witness No. 21 at an early stage of the case in November 1913. He replied simply that he did not know. P.W. No. 71 was examined on the 31st August 1915; he is a Gotia of the Chandan gaddi and he was not asked anything upon the subject. Mr. Das criticism is that if Jaimangal was older than his brother Sib Narain this adoption would not be at variance with the custom, for Jaimangal would then be the heir-at-law. We see no reason why the evidence of Jaimangal's daughter-in-law should not be accepted and why we should not hold that Jaimangal was in fact the younger brother.
Patardih.
59. The next case is that of Patardih. This also is said to have taken place some 60 years ago. In this case the adopted son himself, Churaiman, was produced and gave evidence to the effect that he had been adopted. It is also supported by the evidence of defence witness No. 31. The adoption appears to have taken place when Churaiman was about 5 or 6 years old. Thereafter the property was for the most part sold at auction to satisfy debts and the family went to live at Katras. We find it somewhat difficult to come to a definite conclusion that this adoption has been proved, having regard to the fact that it was not suggested until very near the conclusion of the case. The evidence given by the Raja of Katras appears to us to be on the whole honest evidence, and he stated that adoption had never taken place. On the other hand, of course the death of the Raja of Katras which occurred in February 1912 may have given the, defendant the opportunity to discover this adoption. On the whole we prefer to express no definite opinion as to whether this adoption has been proved or not. It is, therefore, excluded from consideration. We observe that the Subordinate Judge also has not expressed any finding upon the subject. The evidence of D.W. No. 31 upon the subject is open to criticism.
Karangarh
60. We take next the Karangarh instance. This is a recent instance which occurred not before 1905 and possibly as late as 1909 or 1910. It is not, therefore, very material upon the question of the custom as it stood in 1885. The case is of an adoption by one Sambhu Prasad of a boy named Jagdamba, the son of one Nanku Singh. Nanku Singh has himself supported it by his evidence and from the nature of the cross-examination on the plaintiffs' side it appears that it was admitted that Jagdamba had succeeded to the Karangarh gaddi, though he was not the heir at law to that gaddi. Various explanations appear to have been suggested in cross-examination, and we see no reason why we should not accept the natural explanation given by Nanku Singh, namely, that Jagdamba was adopted by Sidnath Prasad. The plaintiff was given ample notice of the proposal to prove this adoption and though it was put to the plaintiffs' witness No. 18 in July 1913, no evidence was offered to rebut it or to support the explanation suggested in cross-examination. We concur with the finding of the Subordinate Judge that this adoption was proved Pachamba.
61. The next instance relied upon by the defendant is Pachamba. This adoption is said to have taken place about the year 1884. The story is as follows. During the lifetime of the holder of the gaddi Sidnath Singh, one Brahma Narain was adopted, Brahma died and Udit Narain was then adopted. Thereafter a natural son was born and the natural son was preferred to the adopted son for the purpose of succession. This story, if made out, will be in favour no doubt of the defendant, for in a family governed by the law of primogeniture, however validly a son was adopted, the natural son would no doubt be preferred to him. It is also in favour of the defendant that in the contest before the castemen between Udit Narain the adopted son and Sheo Prasad the natural son, it occurred to nobody to put forward the case that there was a custom prohibiting adoption. The learned Subordinate Judge is not satisfied that this was a clear case of adoption. We are, however, disposed to take the view that it has been sufficiently made out. It is of importance to consider the evidence in this regard chronologically. It commences with the evidence of the Raja of Katras which is to the effect that after the death of Sidnath Singh, there was a contest between Udit Narain and Sheo Prasad the natural son, but the castemen present, upon being satisfied that Udit Narain was an adopted son, gave the tika and, pugree to the natural son Sheo Prasad. The plaintiffs' witness No. 3 also stated that there had been two instances of adoption, one at Lachmipur and another at Pachamba, but that the adopted son did not succeed at Pachamba. After the adoption a son was born to the Tikait. The witness says that bad there been no son born the adopted son could have succeeded. This witness is an old man of 80 years of age. The plaintiffs' witness No. 11 stated that he heard of the adoption at Pachamba; plaintiffs' witness No. 19 stated that there is an adopted son in Pachamba as well as a natural son but that he did not know who was in possession; plaintiffs' witness No. 22 gave evidence to the same effect. Some ten months later plaintiffs' witness No. 23 was examined and denied the adoption at Pachamba in chief. Subsequently in cross-examination he stated that he could not say whether Udit Narain was adopted at Pachamba or not. The defence witnesses Nos. 43, 50 and 58 gave evidence of the adoption. Witness No. 50 asserted that he was present. As regards D.W. No. 58 it was for the first time suggested in cross-examination that Udit Narain was taken as a son born of the womb of the wife and was passed off as an adopted son and that at the time of the alleged adoption the Tikait was insane. The witness did not admit this. I). W. No. 24, who was examined later, stated that he was present and that the caste people attended and that he had been invited. To this witness it was suggested that in a litigation between the natural son and the adopted son, the natural son's case was that the adopted son was a foster son who had been given out as a natural son. The witness said that if a child belonging to one family is brought into another family and passed off as a son, he is in my opinion an adopted son." D.W. No. 53 was asked "was it not a fact that there was no adoption at all but a new born babe was passed off as a son born of the womb of the wife of Tikait Sidh Nath of Pachamba?" The witness replied "yes, it is a fact". In re-examination he said that he had heard it from all who went to attend the adoption ceremony and it is, therefore, clear that the witness did not mean a mere pretended accouchement for he talks of an adoption ceremony. The question appears to me to have been asked in a somewhat unfair way, containing as it does several points of fact. It is unlikely that a new born babe would be utilised for the purposes of an adoption ceremony and defendant's witness No. 50 says that at the time of the adoption Udit Narain was 5 or 6 years old. D.W. No. 31 stated in chief that his sister, the wife of Sidh Nath, adopted a son while her husband was alive. That son died and then another wife adopted Umed Narain. In cross-examination he accepted the suggestion that both adoptions were of the same kind. D.W. No 8, however, who was the wife of the brother of the lady who is said to have adopted Umed Narain, stated that she and also her husband adopted. No evidence of a pretended accouchement was offered; on the contrary the plaintiffs produced witnesses to prove that Umed Narain was in fact a natural born son. These witnesses were examined in September 1915; witnesses Nos. 75, 76 and 78. These three witnesses appear to have been called merely for the purpose of saying this. It appears also that Umed Narain in his litigation with Sheo Prasad claimed to be a natural born son, but this is of course what he would be tempted to do as he would have little chance of success merely by claiming as an, adopted son, for a natural born son in a family governed by the law of primogeniture would almost certainly be preferred to, an adopted son. That Umed Narain claimed to be a natural born son also appears from the evidence of Jyonti Kumar and from the plaintiffs' witness No. 35. On consideration of the entire evidence relating to this matter, we are of opinion that the weight of the evidence is in favour of holding that both Brahma and Umed Narain were introduced into the Pachamba family; that they were not new born infants; that there was no pretended accouchement and that they were thereafter treated as the sons of Sidh Nath, the living holder of the gaddi. They were therefore in fact adopted as sons of Sidh Nath. In these circumstances we see no reason to doubt that the ordinary adoption ceremony took place. The alternative that there was a pretended accouchement was put up at a very late stage in the case and was subsequently abandoned. It appears to have been suggested merely by the fact that Umed Narain had claimed to be a natural son in his litigation with Sheo Prasad.
62. To summarise this part of the case we are of opinion that the plaintiffs failed to prove that there never had been any case of adoption; the defendant succeeded in making out that Pachhette was a family the customs of which would ordinarily be followed in the Baisi-Chowrasi and that in that family the law of adoption is firmly established; that adoption had
63. Evidence Act; but where a witness has been fully examined and cross-examined as the Raja of Katras was, Section 32 has, in our opinion, no application, and if the witness happens to die before the termination of the suit it is not open to either party to then apply under Section 32 of the Evidence Act for the admission of a previous statement made by him. In so far as the previous deposition might be utilised for the purpose of impeaching the Raja of Katras, we are of opinion that it is not admissible for that purpose inasmuch as it was a statement recorded in writing and was not put to the Raja at the time when he gave his evidence--section 145 of the Indian Evidence Act. Mr. Das has contended that the statement can be interpreted to be in his favour. It is not, therefore, really very material in the case and we have accordingly left it out of consideration.
64. Before leaving the case we desire to acknowledge the great assistance which we have received from the very able and lucid arguments which have been addressed to us on behalf of the appellant by Mr. Das and on behalf of the respondent by Mr. Manuk. We desire also to acknowledge the great industry of the gentlemen who have assisted them in placing before us the multitudinous details of the evidence in the case in a manner which has enabled us to form our opinion on the weight of the evidence.
65. The appeal is dismissed with costs.