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78. These appeals rise out of the judgment of the Subordinate Judge of Tanjore in Original Suit No. 26 of 1912 filed by the Receiver of the Tanjore Palace Estate for the purpose of obtaining an adjudication as to the person or persons legally entitled to succeed to the properties mentioned in the plaint on the death of Jijamba Bai Saheba, the last surviving widow of Maharaja Sivaji who was the last king of Tanjore.

79. The first and second defendants claim the estate as the sons of Rajaram Ingle, who, it is alleged, was the adopted son of Maharaja Sivaji. The third defendant claims the estate as the grandson by adoption to Vijaya Mohana Mukta Bai, the second daughter of Maharaja Sivaji. It is alleged that she adopted Sambu Singh who in turn adopted the third defendant. Defendants Nos. 4 to 11 claim descent from the Raja through what are called the sword wives. Fourth and fifth defendants claim the estate as the sons of the Maharaja. Defendants Nos. 6 to 11 claim as the grandsons of the Maharaja. Defendants Nos. 12 to 24 claim the estate as the nearest reversionary heirs on the death of the widows.

80. The Tanjore Raj was founded about the year 1674 or 1675 by Yenkaji otherwise known as Ekoji who was the half-brother of Sivaji, the founder of the Mahratta kingdom. As I shall have to refer to more than one person of that name, I shall refer to him as Sivaji the Great to avoid confusion. Shahaji, their father, married two wives. By his first wife Jeja Bai, he had two sons Sambaji and Sivaji the Great, and by his second wife Thuka Bai, he had a son Venkaji also known as Bkoji. Venkaji had three sons who succeeded to the Raj one after the other. The last son Thukaji had a son called Bkoji. He (Thukaji) had a son called Pratap Singh who is said to have been born to his sword wife Annapurni Bai. Pratap Singh reigned from 1740 to 1763 and had two sons Tulasaji and Amar Singh. Tulasaji died leaving an adopted son Serfoji and Serfoji, who reigned from 1799 to 1832, had a son Sivaji who was the last Raja of the Tanjore Dynasty, as the Bast India Company on his death in 1855 declared the Raj to be extinct and took possession of all the properties alleging an escheat. On Tulasaji's death, his brother Amar Singh disputed the adoption of Serfoji and claimed the estate. His claim was at first recognized by the East India Company and he ruled from 1787 to 1798. Subsequently the claims of Serfoji, the adopted son of Tulasaji, were recdgnized and Amar Singh was deposed. He resided in a place called Tiruvadamarudur on a pension which was assigned to him. He died leaving a son Pratap Singh. Pratap Singh adopted a son and the twelfth defendant Bhavani Bai is the widow of the adopted son, who died leaving no male issue. She claimed the estate as the nearest heir to Sivaji Maharaja on the ground that under the Mayukha which applies to the parties she was a Gotraja Sapinda entitled to succeed in preference to other collaterals. A few years after the death of Sivaji Maharaja, his eldest surviving widow Kamakshi Bai Saheba adopted Rajaram Ingle, the sister's grandson of the late Sivaji Maharaja. The first and second defendants are the sons of Rajaram Ingle. Sivaji Maharaja had two daughters Rajes Bai and Mukta Bai. Rajes Bai, the elder daughter, died without issue on the 26th of December 1856 Mukta Bai, the younger daughter, who was unmarried at the date of the Raja's death, married Sakharam Saheb. She had two sons who predeceased her. She and her husband adopted one Sambu Singh and the third defendant is the adopted son of Sambu Singh. He claims as the daughter's grandson by adoption of the late Maharaja. Sivaji Maharaja had three sisters. The first Bayamma Bai had a son Ramachandra Soorve. The seventeenth defendant is the son of Ramachandra Soorve. The twenty-third defendant is the son of the seventeenth defendant. They claim as the sister's grandsons. Sulakshana Bai, another sister of Sivaji, had a son Manoji, who died leaving a son Eswant Mohitai. Defendants Nos. 21 and 22 are the sons of Eswant Mohitai. Sakwar Bai, another sister of Sivaji, had a son Pratap Rudra Ingle. Pratap Rudra Ingle had throe sons Ramachandra, Eswant and Rajaram. As already stated, Rajaram, the youngest son, was adopted to Sivaji. Ramachandra left a son, who is the twentieth defendant. Sivaji Maharaja is alleged to have married a number of ladies referred to in the case as the Mangala Vilas ladies by a rite which is stated in the evidence to be "a sword marriage," and defendants Nos. 4 to 11 are, as already stated, either the sons or grandsons of Sivaji by six of the sword wives. Sambaji, the eldest brother of Sivaji the Great, died during the lifetime of his father Shahaji and his descendants played no part in the events that succeeded Shahaji's death. The twenty-fourth defendant claims as the descendant of Sambaji and the nearest agnatic reversioner to Sambaji. Sivaji the Great had two sons Sambaji and Rajaram. When disputes arose between Sambaji and Rajaram, the kingdom left by Sivaji was carved into two principalities, Sambaji and his descendants ruling a principality with the capital at Satara and Eajaram and his descendants ruling another principality with the capital at Kolhapur. The thirteenth and fourteenth defendants claim as the direct descendants of Sambaji to be the next heirs. The principality of Satara was declared extinct by the East India Company in 1838 and the thirteenth and fourteeth defendants are political pensioners residing in Satara and they claim to be the nearest reversionary heirs. The fifteenth defendant, who is a descendant of Rajaram, is the ruling Prince of Kolhapur and he claims as the person entitled to the Tanjore Raj. Shahaji, the father of Sivaji the Great, had an uncle Vittoji and the sixteenth defendant is the widow of one Somanath, who is said to be a direct descendant of Vittoji. Her claim is similar to that made by the twelfth defendant. Defendants Nos. 18 and 19 claim to be the grandsons of the Step-sister of the late Sivaji Maharaja.

89. It will thus be seen that at the date of the Raja's death he had 16 wives married according to orthodox Hindu ritual and 40 sword wives and six sons by six of them whose names I have already given and two daughters by a predeceased Rani. On the 29th of October 1855 Mr. Forbes, who was then the Resident at the Court of Tanjore, reported the Raja's death to the Government and Exhibit B-32 is the report. It merely states that the Raja was seized with a slight illness two days previously, that the danger was apparent only on the 29th and that the Raja died before the Resident arrived at the Fort. He sent a detailed report, Exhibit G-208, dated the 6th November 1855. He treated the sword wives as mere permanent concubines and reported that the Raja left no male issue and suggested the continuance of the line by making the younger daughter the ruler of the State, as the elder daughter who was very ill was not expected to survive long. Mr. Forbes pointed out that there was no bar to female succession, that the officers of the Raja's darbar met the day after his death and decided to urge the claims of the younger daughter to succeed, that on a previous occasion when the ruler died without issue, his widow succeeded him and that he was informed that similar successions took place in Satara and Kolhapur. The Madras Government did not acquiesce in the view taken by Mr. Forbes or adopt his suggestion and they addressed a letter to the Court of Directors which is published in the appendix to Exhibit C-69 (Hickey on the Tanjore Mahratta Principality). The view taken by the Madras Government was that there was no male heir or any legitimate claimant to the Raj : that the Raj consequently became extinct and should be so declared : and that the family of the Raja should be treated with liberality and consideration. The. Court of Directors in their despatch, dated the 16th of April 1856, were of opinion that as the Raja died without leaving a son by birth or adoption or any brother him surviving, there cannot be a male claimant to the dignity, that the Tanjore Raj was therefore extinct and that it lapsed to the British Government.

139. The question therefore resolves itself into whether any special customs existed in the royal family of Tanjore and, if so, what were the rights of the issue. So far as the Tanjore Royal family is concerned, there is the evidence of Dharmavalli Bai Amma whose deposition has been marked as Exhibit D-236. She states that she was the brother-in-law's daughter of Sivaji Maharaja, that she was married according to the sword form of marriage, that the marriage was over in a day, that a sword was placed and homam performed, that she went round the homam when the priest chanted the mantrams? that after she did that, she prostrated before the Raja who tied a tirumangaliam or tali round her neck, that there was a dinner afterwards and that the Raja's adoptive mother Avu Bai Saheba performed a ceremony known as summuk, i.e., a ceremony where the mother-in-law for the first time after the marriage looks at the face of the daughter-in-law. It is unfortunate that this witness who would have been an important witness for defendants Nos. 4 to 11 was not examined earlier. She was ill when she was examined-in-chief, and her examination was adjourned after a few sentences in cross-examination were recorded. She died before cross-examination could be resumed. There was considerable argument as to the admissibility of her evidence which it was not possible to test by cross-examination. I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can have little value. I need only refer to Taylor on Evidence, section 1469 : Davies v. Otty (1865) 35 Beav., 208, Elias v. Griffith (1877) 46 L.J. Ch., 806, Man Gobinda Chowdhuri v. Shashindia Chandra Chowdhuri (1908) I.L.R., 35 Calc., 28 and Dhanu Ram Mahto v. Murli Mahto (1909) I.L.R., 36 Calc., 566. There is nothing in the Evidence Act which renders such evidence inadmissible. In Rosi v. Pillamma (1910) 20 M.L.J., 400 it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should not be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. I am not disposed to attach any weight to the evidence of this witness. There is no other witness examined in this suit who speaks to any ceremony which was usual in the case of sword marriage in the Tanjore family or among the Mahrattas. Though commission was taken out to examine witnesses in the Bombay Presidency, there was no attempt made to adduce any evidence as to the ceremonies which usually follow or the incidents which attach to a sword marriage or the issue by such a marriage. There was some evidence adduced in previous litigations as to the ceremonies that accompany sword marriage. [After referring to some oral evidence recorded in some previous litigations and discredited by the Judges who recorded them his Lordship proceeded as follows:--] I am of opinion that there is no satisfactory evidence in this case to show what ceremonies were necessary to constitute a sword marriage.