Amarendra Mansingh Bhramarbar Rai and Another vs Banamali Singh and Another

Jwala Prasad, J.

BH-1930-0107

This is an appeal by defendants 1 and 3 against the decision of the Subordinate Judge of Cuttack, dated 30th November 1925, decreeing the plaintiff''s suit for succession to the Dompara Raj in Orissa.

The following genealogy filed by Raja Raghunath Mansingh, grandfather of defendant 1 in suit No. 86 of 1867 and accepted by the Court below, may be usefully reproduced here. It stops with Raghunath Mansingh, and Chintamoni Singh, father of the plaintiff. Therefore, the descendants are also added to the genealogy in order to show the relationship of the parties in the present litigation:

RAJA JAGANNATH MANSINGH | ____________________________________________________________ | | | | | Chandrasekhar Jalesar (Raja) Harichandan Krishna Chandra Jagdeb (died (Raja) died | | Raj Pitam isauelass). issueless | | | | | | Purusottam Mansingh, | | adopted son (became | | Raja about 1796, died | | issueless on 30th | | September 1856). | | | | _____________________________________ | | | | Gauranga (died Purusottam (adopted by | issuelass). Jalesar). | | | ______________________________________________________________ | | | | Madan Singh Braja (died issueless). Kishori Mansingh Nagri Mohan (died. (predeceased Kishori). (Raja)(died on 2nd issueless). | December 1855). Chintamoni | Singh. _________________________________________ | | | | Raghunath Mansingh (Raja) Niladri Singh. | Bhramarbar Rai. | | | Brajendra Mansingh | (died on 26th December 1903)=Rani Indumati, his widow, defendant 3. | | | ______________________________________________ | | | | Raja Bibhudendra Amarendra Mansingh | Mansingh (last mala (defendant 1). Adopted by | holder) died on 10th Rani Indumati on 18th | Dacember 1922. December 1922. | | _________________________________ | _________________________________________________________________________ | | | | Dinabandhu Singh Natabar Singh Banamali Singh (saniormost of the Brindabin Singh. (Adopted to Banki), (Dead). nearest living agnates after the death of Bibhudendra). 3. The Dompara Raj, also called Killa Dompara, being one of the Killajat Mahals of Orissa, is one of the Regulation Mahals of the district of Cuttack, bearing Tauzi No. 20 of the Cuttack Collector-rate. It is an ancient impartible estate held by one person for the time being, who is called the Raja of Dompara. After the death of the last holder succession to the Raj devolves by the rule of primogeniture on the nearest of kin to the deceased Raja. Accordingly after the death of Raja Purusottam Singh in 1856 Kishori Mansingh became Raja in preference to Chintamoni Singh, father of the plaintiff, inasmuch as Madan Singh, father of Chintamoni Singh and elder brother of Kishori Singh, had pro-deceased Purusottam. Kishori Singh died on 2nd December 1856, shortly after his succession. Chintamoni. Singh father of the plaintiff, disputed the right of Raghunath Singh, son of Raja Kishori Mansingh, to succeed to the latter upon the ground that he was the preferential heir by the rule of lineal primogeniture being the son of Madan Singh, the elder brother of Kishori Mansingh. Hig contention was overruled by judgment (Ex. U) dated 30th November 1867, and in which it was held that succession devolves by family custom as well as under the Mitakshara law upon the seniormost member of the nearest agnatic relations and accordingly Kishori Mansingh succeeded Purusottam in preference to Chintamoni Singh and after him Raghunath Mansingh succeeded,. He in turn was succeeded by his son Brajendra Mansingh, who died on 26th December 1903, and next came his son Bibhudendra Mansingh, the last holder of the Raj. He was a minor under the ''Court of Wards and died suddenly on 10th December 1922, by drowning in the river Mahanadi at an age of 20 years and 6 months. Mis body was recovered on 13th December 1922 and was preserved in an oil vessel to be cremated, according to the family custom, under it he orders of his successor to the Gaddi. Bibhudandra had left surviving him his mother, Rani Indumati. She had been authorized by her late husband, Raja Brajendra Mansingh, by an ''anumatipatra'' (deed of authority to adopt), Ex, 1 dated 20th July 1898, to adopt a son to him in case he had no son or the son born or adopted by him died.

Accordingly Rani Indumati obtained the sanction of the Court of Wards and on 18bh December 1922 adopted Brojesparatap Singh, defendant 1. At the time of adoption she changed the name of the adopted boy Brojesparatab Sjngh into Amarendra Mansingh giving him the family title of Bhramarbar Rai. The boy was given in adoption by his mother Srimati Krishnachandar Priya Debi, her husband Raja Sura Pratap Mahendra Bahadur being dead. On the same day she executed a deed (Ex. G-2) in proof of giving the boy in adoption and simultaneously Rani Indumati executed a deed of adoption (Ex. G-1-1). Both these deeds were amongst others attested by Banamali Singh.

On 23rd June 1924, Banamali Singh instituted the present suit No. 41 of that year, disputing the validity of the adoption and claiming to have succeeded to the Dompara Raj as a rightful heir of the late Raja Bibhudendra Mansingh being the seniormost member amongst the nearest agnatic relations at the time She Raja died. He says that according to the family and tribal custom and usages obtaining from time immemorial female members howsoever nearly related are always excluded from inheritance and that on failure of direct lineal male descendants of legitimate birth of the last male holder the inheritance passes to the eldest male member among the nearest agnates of the late Raja, and accordingly, the plaintiff says that he succeeded to the estate of Bibhudendra on his death, on 10th December 1922, to the exclusion of Rani Indumati, his mother, and that she in order to defeat the right of the plaintiff set up defendant 1 as a son of Brajendra by adoption under an authority alleged to have been given to her by her late husband; that the said authority is against the law and family custom; even if it be deemed to be legal and valid at the time it was granted it. became wholly inoperative and extinguished, as the late Raja Bibhudendra was the fall owner of the Raj and died after attaining full age and full legal capacity to continue the line and that hence the adoption of defendant 1 on 18th December 1922 by Rani Indumati cannot divest the estate which had already vested by inheritance on 10th December 1922 in the plaintiff.

As to his having attested the deeds of adoption (Exs. G 1-1 and G-2), he says that he signed them under undue influence, inducement, fraud and misrepresentation caused by Indumati and the lawyers who were present at the time the deeds were executed and registered. He says that he was living in his village Talbasta at a distance of six miles away from the Raja''s palace, a dense forest intervening, when he heard of the sudden death of Raja Bibhudendra, and that on 17th December 1922, he received a special message from Rani Indumati informing him that the dead body was found and that his presence was necessary at the time of funeral; accordingly he hurried to the Rani''s place and reached there at about 11 a.m. on 18th December 1922, when the adoption was over, and was suddenly called upon to sign the deeds which he did in ignorance of his rights and without having been given an opportunity to know the contents thereof and on being given to understand that his rights would not be effected. He says that the adoption was invalid ab initio and would not in any way affect his right and title to the Raj which had already vested in him on the death of Bibhudendra; that the said adoption or the deeds in question do not confer upon defendant 1 the right and status, of an heir to Bibhudendra ; that soon after the adoption he applied to the Board of Revenue representing the Court of Wards claiming the Raj and got a reply that it would be retained by the Court of Wards till the dispute regarding the heirship was finally determined by a competent civil Court; that thereafter on 15th January 1923, he applied to the Collector of Cutback for registration of his name under the Land Registration Act (7 of 1876) and that subsequently the defendants also applied for registration of their names u/s 55 of the Act. The matter was referred to the civil Court which by its order, dated 4th February 1924, summarily disposed of it against the plaintiff. Hence the present suit.

The principal relief claimed by the plaintiff is that it be declared that he is the rightful heir of the late Bibhudendra Mansingh, the last male-holder of the Dompara Raj, and that as such he succeeded to the disputed estate as full owner since his death en 10th December 1922, and that the alleged adoption of defendant 1 is invalid, inoperative and does not in any way affect the vested right of the plaintiff and that he acquired no right to the Raj by his adoption. The plaintiff further asks for confirmation of his possession and for recovery of possession of the Dompara Raj in case he be found to be out of possession.

The plaintiff impleaded the adopted boy as defendant 1 and his adoptive mother Rani Indumati as defendant 3. Defendant 2 was made a party because he claimed to be the son of Raja Brajendra Mansingh by a phulbebahi wife and to be entitled to succeed to the Raj on the death of Bibhudendra. He instituted a separate suit (No. 1 of 1924) which was tried together with the present suit (No. 41 of 1924) from which this appeal has arisen. His suit was dismissed. As a defendant in the present suit he re-asserted his claim to the Raj, but the learned Subordinate Judge decided against him, holding that he failed to establish that Raja Brajendra Mansingh ever married his mother Kanak Chhamua in a phulbebahi form. He has not appealed against the decision in that case, nor, against the decision in the present case. His claim to the Dompara Raj is thus set at rest.

The defence of defendants 1 and 3 is practically the same though they filed separate written statements. They deny that there is any family or tribal custom by which female members are excluded from inheritance and assert that upon the death of Bibhudendra if the estate vested in anyone it vested in Rani Indumati as his mother and heir, and that as Bibhudendra died unmarried while still a minor and! not having; attained full capacity to continue the line. Rani Indumati adopted defendant 1 under the authority and in accordance with the directions given by her husband and with the approval of the proper authorities and in the presence of the plaintiff and many respectable people; that if by the adoption she divested anybody she divested only herself and that the plaintiff is estopped from denying the validity of the adoption or the right of the adopted boy to succeed, he having taken part in the adoption and signed the two deeds of adoption referred to above.

Upon the pleadings in the case the learned Subordinate Judge framed a number of issues. We are in this appeal not concerned with most of them. The fact that defendant 1 was adopted by Rani Indumati on 18th December-1922, under the, authority given to her by her husband by an "anumatipatra" (Ex. 1), dated 20th July 1898, is not now disputed nor is it disputed that the plaintiff is the nearest living, agnate of late Raja Bibhudendra. The only question for determination in this-appeal, therefore, is as to whether the plaintiff or defendant 1 is entitled to succeed to Bibhudendra, the last holder of the Raj. In order to determine this question it is essential to find out whether Rani Indumati was excluded from succession to her son Bibhudendra.

The plaintiff in para. 3 of the plaint says that:

according to the special family and tribal; custom female members howsoever nearly related are always excluded from inheritance.

This is denied by the defendants (para. 5 of the written statement o� defendant l). The learned Subordinate Judge has found in favour of the plaintiff and against the defendants and has held that females are excluded from succession in the Dompara Raj. He has come to this conclusion by referring to (1) the incidents of the Dompara Raj; (2) the customs of descent and succession relating to the Dompara Raj as recorded in the Pachchis Sawal in 1814; and (3) the oral evidence adduced in the case. As to the first, namely the incidents of the Dompara Raj, he has referred to Mr.. Sterling''s Book ore Orissa, first published in 1822: W.W. Hunter''s Orissa Vol. 2, (1872); the Maddox Settlement Report; and the opinion of Sir Charles E. Trevelyan, dated 8th November 1859 referred to in Secretary of State v. Kamachee Baye Sahaba Relying on the conclusions of Sterling, Hunter and Maddox the learned Subordinate Judge finds that the holder of Dompara occupied the position of a feudal chief among those that occupied the hills and the sea-coast in Orissa and lived in ''killas'' and ''garhas'' as military retainers under the independent sovereigns of Orissa in the twelfth century, for the purpose of repelling the attacks of aboriginal savages and that they continued to occupy the same position when the Afghans conquered Orissa in 1567-68 and also when subsequently Emperor Akbar conquered it and when the settlement of it was made by Raja Todar Mai and Raja Mansingh under Akbar in 1591. The estate of Dompara in Cuttack is mentioned as being one of the territories which was settled with Raja Ratnohan-dra Deo by Raja Mansingh. According to Maddox (Settlement Report, Vol. 1, p. 420) the Mahrattas did not resume Dompara although they resumed some other estates which are left in the Rajwara in the settlemant of Raja Mansingh in 1591 in the time of Emperor Akbar. The British Government conquered Orissa which was under the direct possession of the Mahrattas in October 1803, and Dompara passed to the British Government by this conquest. After this conquest the Bhonsla King of Nagpur ceded the tributary estates of Oriasa by a treaty to the British Government. Thus the British Government came into possession of the tributary estates of Orissa as well as the estates including Dompara which they had conquered ''in 1803, and it divided all these into two groups. The first group formed the tributary estates and the second group formed the Killajat estates in the Regulation Mahals. Dompara thus came to belong to the Killajat estates. In 1829 Dompara was restored to the position of a permanently settled zamindari.

Upon this historical account the learned Subordinate Judge finds that the Dompara Raj was a feudal chiefship. He then refers to the following opinion of Sir Charles E. Trevelyan, dated 8th November 1859, referred to in Secretary of State v. Kamachee Baye Sahaba [1859] 7 M.I.A. 476:

My first 12 years of publics service were passed in the Indian Diplomatic Department and I have as extensive a knowledge of the customs and practice of native chiefs as most people. I mention this as my ''justification for offering a confident opinion that the succession of females forms no part of the constitution of Native States and Chiefships. It may occasionally have taken place as in the instance of Holkar''s widow Ahalaya Bai and the Begum of Sumroo, but the special nature of the circumstances in those cases shows that it was a deviation from an established rule. No well-informed and impartial native would maintain the right of succession of a female to a Hindu Ra}.

The learned Subordinate Judge says:

That being so, there is no shadow of doubt that the females were excluded from succession when Dompara was a feudal Chiefship.

He then refers to Regulation 11 of 1793 read with Regulation 10 of 1800 and Regulation 12 of 1805 in order to show that the fact that Dompara was made into a permanently settled zamindari by the British Raj in 1829 as one of the Killajat estates in the Regulation Mahals

in no way operated to destroy the family custom, namely the exclusion of females from succession,

which obtained in the Raj when it occupied the status of feudal chiefship.

Undoubtedly the Dompara Raj is an ancient impartible estate coming down from the Hindu period. In fact there were no less than twenty-three Rajas as shown in the genealogical table attached to the plaint of 1867 (Ex. 22) before Raja Purusottam succeeded to the gaddi about 1796. Yet the historical account given by the learned Subordinate Judge is not conclusive to show the family custom of female exclusion from succession obtaining in the Dompara Raj. Though the accounts given by Sterling, Maddox and later by Toynbee as well as the opinion of Sir Charles E. Trevelyan are valuable, they do not refer to the custom of female exclusion from succession to the Dompara Raj. They may, however, be referred to as being not inconsistent with the custom if otherwise legally proved, and in that way they are valuable. The learned Subordinate Judge has over-estimated, in the passage from his judgment quoted above their value and has assumed that there was an incident of female exclusion in the Dompara Raj. In fact, the Government itself, after it came into possession of Orissa, was anxious to obtain information about the customs of succession, inheritance and marriage in respect of two kinds of ancient impartible estates, namely, the tributary estates and the Killajat estates, and accordingly the Superintendent of these Mahals in Orissa, in 1814, addressed 25 questions called Pachchis Sawal to the Rajas of the tributary or Garhjat estates and the Killajat estates. These questions were put in Persian and were subsequently printed in a book form by the Government with their translation in English. Part I relates to the Garhjat estates and Part II to the Killajat estates.

The Pachchis Sawal has been considered as a record of great authority ever since it was prepared up to the present time for the purpose of proving customs of descant in respect of the estates referred to in that document: Vide Raja Sham Soonder v. Kishen Ghunder [1825] 4 Sel Rep. 49, Gopal Prosad Bhakat v. Raghunath Deb [1904] 32 Cal. 158 and Raja Braja Sunder Deb v. Swarna Manjeri Dei [1918] 47 I.C. 36. In the last case Gopal Prosad Bhakat v. Raghunath Deb [1904] 32 Cal. 158 the High Court observed that on the matters with which it deals the ''Pachchis Sawal'' is a work of undisputed authority and this view was not dissented from by their Lordships of the Judicial Committee. Also vide Rajah Jenardhum Ummur Singh v. Obhay Singh [1885] 6 Sel. Rep. 49 a case in the Dhenkanal family, a Garhjat estate, from which the adopted boy in the present case comes. Referring to the Pachchis Sawal the learned Judges in the case of Nittanund Murdiraj v. Srikurun Jaggernath [1865] 3 W.R. 116 accepted it as conclusive proof as to the custom of descent in the case of the Raja of Attgurh, one of the tributary Mahals of Cuttack, and observed as follows:

The fact that such evidence was taken does not in our opinion in any manner impugn the authority of that document. No single case referred to has been shown to be inconsistent with it. Its authority has been recognized in every case and the independent evidence of usage appears in every case to be entirely consistent with it. The attempt to impeach the authority of the Pachchis Sawal has utterly failed.

Besides, the parties in this case admit the authority of the Pachchis Sawal as recording, customs of succession governing the family: vide the plaint (para''. 2) and the written statement of defendant 1 (para. 4). The, Pachchis Sawal was referred to and acted upon as recording custom of succession in the Dompara Raj in the judgment between Chintamoni and Raghunath (Ex. U).

Now let us consider if the Pachchis. Sawal excludes females from succession, particularly if the mother of Bibhudendra, the last male-holder of the Raj, would be excluded by the plaintiff Banamali, who is grandson of Madan Singh, the brother of Kishorr Mansingh, who was great-grandfather of Bibhudendra. Reference has been, made at the Bar to" Questions and Answers 12 to 15 in the Pachchis Sawal.

Question 12 runs as follows:

If at his demise a Raja leaves a son, (S) born of a concubine, but not born of either his Phool Beebahees or slave girls, and neither brother, nor brother''s son not Pat Ranee nor daughter by a Pat Ranee, whose, in this case-would be the succession?

The answer given by Dompara is as follows:

If on the demise of a Raja there should be none of the heirs named in the question'', but a son born of a concubine, the latter might; succeed if no brother (brethren) bradran juddi Raja muttawaffi'' connected in the late Raja''s: grandfather, (Pita Moho) were alive.

The question assumes the existence of a son born of a concubine and the non-existence of sons born of a Phool Bebahee or slave girls, a brother or brother''s son, Pat Ranee or daughter by a Pat Ranee. It does not mention existence or otherwise of bradran juddi of the deceased Raja (that is, the late Raja''s grandfather''s brethren). The answer wants to make it clear and emphatic that the son of a concubine would succeed only if the Raja dies without leaving bradran juddi and would not succeed if any one of the bradran juddi is in existence at the demise of the Raja; but the contentious'' words in the answer are:

If there be none of the heirs named in the question.

The appellants contend that the word "heirs" or "warisan" in Persian implies that the persons named in the question, notably She Pat Ranee or daughter by a Pat Ranee, are heirs and that hence females are not absolutely excluded from succession.

The next question, No. 13, refers to the case of Pat Ranee and daughter by a Pat Ranee. The question is:

At the death of a Raja, suppose he leaves a brother, a nephew, a Pat Ranee, and a daughter by the Pat Ranee, who would succeed?

The answer is:

The brother would be the rightful claimant of the Raj.

Thus the Pat Ranee and her daughter are excluded by a brother or brother''s son.

The next question (No. 14) is as follows:

At his death suppose a Raja leaves neither brother nor nephew, but that his Pat Ranee survives and he leaves (a) legitimate daughter by another Ranee, who would, in such a case, succeed?

The answer is:

The nearest of kin among the brothers of the Raja''s grandfather. (Pita Maho judd) would in such case succeed.

The words in the Persian answers are:

As Baradran Judd}'' Raja Mutawfi liar he ha garabat garib tar bashad mustahaq Rajgius.

By the answer the Ranees and the Pat Ranee would be excluded by the kinsmen connected through the grandfather of the Raja.

By Question and Answer No. 15 the ether Ranees and their daughters would also be excluded by bradran juddi, that is, kinsmen connected with the Raja through his grandfather.

Questions 13 to 15 explain the meaning of Question 12.

The result is that according to the answers given by the Rajas the Ranees whether Pat Ranee or others and their daughters would be excluded by a brother, "a nephew and the nearest of the kinsmen among the bradran of the Raja''s grandfather.

By Questions and Answers 22 and 23 a son adopted by the Raja or the Ranee with the authority of her husband would succeed in preference to his brother, nephew, Pat Ranee and other Ranees.

The plaintiff urged that under the aforesaid customs recorded in the Pachchis Sawal females are altogether excluded from succession to the gaddi. On this point the learned Subordinate Judge writes:

Defendants 1 and 2 on. the other hand assert that females are not totally excluded from inheritance under the custom embodied in the Pachchis Sawal but their succession to the gaddi is postponed in preference to certain other heirs under the said custom.

Thus the defendants contend that although brothers, nephews (brother''s son) and the bradran of the Raja''s grandfather "bradran juddi" would exclude the widows and the daughters of the Raja, a descendant of the brother of the great-grandfather of the Raja would not exclude the Ranee and the daughters of the late Raja.

The plaintiff contends that the words "bradran juddi" are wide enough to include descendants of the grandfather and upwards. As to the meaning of the Persian expression " bradran juddi" occurring in the Pachchis Sawal in Persian or the Sanskrit equivalent there to "Pita Moho Samparkeya" or "Pita Moho Sambandhiya" occurring in the original Oriya translation of answers to Questions Nos. 12, 14 and 15 (the word " Pita Moho" as equivalent to "judd" has been mentioned in the English translation of answers to Questions 12 and 14) both parties have given evidence, particularly of experts in Persian and in Sanskrit.

The plaintiff''s witnesses Madhusudan Das No. 5 and Sadashiva Misra Mahamahopadhyaya No. 8 say that the word "Pita Moho" means grandfather and upwards and the words ''''Pita Moho Samparkeya" and "Pita Moho Sambandhiya" mean bradran related to the grandfather and upwards. Defendants'' witness No. 12 Kashi Nath Das, on the other hand, says that the aforesaid words denote brother connected through the paternal grandfather, and not upwards. In cross-examination he says that the word "Pita Moho" used in Sloke No. 112, Ch. 12, in "Mahanirvan Tantram" means grandfather and upwards. He further says that:

the first cousin of Pita Moho is related through, the Pita Moho. The words "Pita Moho Samparkiya or Sambandhiya " indicate the relation of or as a grandfather. The words "Pita Moho Samparkiya or Sambandhiya bhratmane" mean brother or cousins related through the grandfather.

This would bring the plaintiffs'' father Chintamoni, the first cousin of Bibhudendra''s grandfather, Raja Raghunath, within the aforesaid expression used in the Oriya translation of Questions Nos. 12, 14 and 15 of the Pachchis Sawal.

Witness Sadashiva Misra Mahamahopadhyaya (P.W.8) says:

The word "bhratmane" occurring in the said answer signifies brothers and cousins however remote.

This would bring the plaintiff within the meaning of the aforesaid expressions as being entitled to succeed to Bibhudendra in preference to his wives and daughters if any.

Now as to the Persian expression "bradran juddi" plaintiff''s witnesses Maulavi Mohammad Mohsin No. 9 and Maulavi Abdul Qadir No 1 say that it means bradran or relations connected with the deceased through his grandfather or ancestor upwards. According to them "juddi" means "grandfather and upwards" and "juddi" in the adjectival form denotes "in the line of the grandfather," that is, "connected with the grandfather or related to grandfather" and the answer to the questions must accordingly denote.

the nearest among the brothers or relations connected through the Raja''s grandfather or ancestor.

The defendant''s witnesses Mr. Ahmad No. 10 and Mr. Muhammad Latif No. 11 dispute this interpretation and would restrict the meaning of the word "judd" to grandfather, and "bradran juddi" according to them would mean brethren or kinsmen descended from grandfather and not from above him. Mr. Ahmed says that the word "judd" primarily means father''s father, but it maybe used figuratively to mean "father''s father and upwards." In that sense he says in cross-examination that Fallon in his dictionary has given the meaning of the word "judd" as "ancestor." Mr. Latif in cross-examination says:

Bradar'' means uterine brothers, "bradran" means uterine brothers as well as karabatdars; and the words "bradran juddi" (used in the answers) mean brothers of the father''s father as well as other relations.

According to the extended meaning of the word "bradran" as distinguished from the word "bradar'' (singular) and the meaning of the word '' judd" as an ancestor given in Fallon''s Dictionary, the plaintiff Banamali would be the nearest of kin among the brethren of the Raja''s grandfather. In the case of Nittanund Murdiraj v. Srikurum Juggernath [1865] 3 W.R. 116 already referred to referring to the questions 10 and 12 of the Garhjat estates and Question 12 of the Killajat estates their Lordship''s translate the words "bradran juddi" as "the brethren of the grandfather," that is:

brethren connected with the late Raja''s grandfather.

This would bring the plaintiff Banamali within the expression "bradran juddi" as being one of the brethren connected with the late Raja''s grandfather. The learned Subordinate Judge has held that he:

comes within the expression "bradran juddi" of Bibhudendra, the last full owner of Dompara Raj, also according to the answer given by the Rajas in 1?14 to the Pachchis Sawal,

He says that the nearest sapindas of the paternal grandfather are his kinsmen and those sapindas are his father, paternal grandfather and patenal greatgrandfather. "That being so" says the learned Subordinate Judge:

the descendants of the father, paternal grandfather and paternal great-grandfather of the paternal grandfather o� the ex Raja are in my opinion covered by the expression "bradran juddi" used in the answers to the question of "Pach his Sawal" by the than Rajas of the Killajat and Garhjat estates in 1814.

Be that as it may, upon the plain meaning of the words "bradran juddi'' and restricting the meaning of the word "juddi" as related to grandfather, the plaintiff''s father Chintamoni was one of the bradran of the plaintiff''s grandfather Raja Raghunath. The plaintiff is one of the bradran of Bibhudendra''s father. The word "bradran" is not restricted to the relations of the same degree but as shown from the opinion of the experts'' examined on behalf of the defendants it also includes descendants of those on equal degree. Thus the plaintiff is one of the bradran juddi of Bibhudendra. He would therefore exclude the Ranis and daughters of Bibhudendra if any according to the Pachchis Sawal. These Questions 12 to 15 to my mind purport to elicit information as to whether females do or do not succeed to the Raj, and the strongest case is put in the questions as to whether the Pat Rani or other Ranis and their daughters who survive the. Raja would succeed in preference to very distant agnates, such as, a kinsman connected not only through the father but also through the grandfather or any other ancestor of the Raja. No doubt, a direct question was not put as to whether females are excluded or not altogether from succession. But that was apparently the reason of the questions Nos. 14 and 15 and the answers given purport to convey the meaning that females are excluded. The learned Subordinate Judge has under-estimated the import of these questions and answers when he says that "they are ambiguous" or that "as regards the exclusion of females from succession the matter has been left in doubt." He is however right an his view that the plaintiff Banamali comes within the expression "Bradran juddi" of Bibhudendra, the last full owner and that by the fact that the Ranis and the daughters are excluded, mothers and sisters are equally excluded being more ''remote than the Ranis and the daughters.

The defendants wanted to get over the custom recorded in the "Pachchis Sawal" by contending that the females are not altogether excluded but that their succession is only postponed in preference to certain other heirs under the custom recorded in the Pachchis Sawal. If the view taken by me of the Pachchis Sawal be correct the matter is concluded as the custom recorded therein regarding the exclusion of females from succession is binding upon the Garhjat and the Killajat estates and no other evidence is necessary. The Pachchis Sawal has a binding effect and is conclusive and stands on a higher footing than the inferences to be drawn from the historical account of the nature of the Raj given by Sterling, Hunter, Maddox and Toynbee.

There is, however, evidence given by the plaintiff in support of his contention that females are excluded from succession to the Dompara Raj. Plaintiff''s witnesses Jagatbandhu Das No. 1, Madan "Sunder Dhal No. 2, Gadadhar Singh No. 3, Banamali the plaintiff himself No. 4, Ramchandra Dhal No. 7 speak as to the custom of female exclusion. Jagatbandhu Das is 82 years of age and is a resident of Dompara. He was Peshkar of Raja Raghunath Mansingh, Bibhudendra''s grandfather. He also worked under Raja Brajendra Mansingh. In his time Purusottam Mansingh, adopted son of Jalesar, became Raja and in his time answers to the Pachchis Sawal were given on behalf of the Dompara Raj. He says that when Purusottam Mansingh died he left his widowed adoptive mother. It is noticeable that she did not succeed. He says: "No female ever became malik of the Dompara Raj."

Witness 2 Madan Sunder Dhal, aged 57 years, says: "Never any woman got the Raj as proprietor thereof." He says in cross-examination that "Rani Indumati under the custom prevailing in Dompara Raj family cannot be successor of her deceased son Bibhudendra." He further says in cross-examination that he heard from his ancestors and also from Raja Brajendra "that women cannot succeed in Dompara Raj." He also heard that "Kishori excluded the mother of Raja Purusottam from the gaddi and became the Raja of Dompara." He is an agnate of the Dompara Raj family.

Gadadhar Singh No. 3, aged 49 years, is a near agnate of the Raja of Khandpara, being the elder cousin of the father of Natabar Singh, one of the members of the Raj family. Govind Dhal of Dompara married his sister. He says: "There is no custom in the Garhjat and Killajat under which a female can succeed to the Raj." He gives an instance from the Khandpara Raj, one of the Killajat estates, of Ramchandra Singh becoming ''the Raja of Khandpara after excluding the widow of Natabar Singh," who was removed by six degrees from Natabar. In cross-examination he says that "the Bara Rani of Natabar Singh who was excluded from succession is still alive."

Plaintiff Banamali Singh, aged 46 years, says that "in the Dompara Raj the females have no right to succeed," and gives an instance of Purusottam''s mother having been excluded by Kishori. In cross-examination he says that "Purusottam''s mother severed Purusottam from plaintiff''s ancestors" and that he heard this from his ancestors and from Chintamoni and his mother.

Ramchandra Dhal, aged 39 years, is a distant agnate of the Raja of Dompara. His father, Govind Dhal, was the Dewan of Dompara Raj. He is the headclerk in the Registration Office, Cuttack. He says that no female ever got the gaddi of Dompara Raj. His evidence is attacked upon the ground that he stated in cross-examination that there never was any dispute between a male and a female claimant to his knowledge.

On behalf of the defendants two witnesses have been examined to deny the custom of female exclusion, Rani Krishna Priya, the natural mother of the adopted boy arid Rani Indumati the mother of Bibhudendra, who adopted the boy. The former gives an instance of a female now being on the gaddi of Bastar in the Central Provinces. She heard about the custom from her husband and from her mother-in law. The latter is alive and was not called as a witness. She had come to Cuttack. Rani Indumati does not even know the relationship of Kishori and Krishna Chandra and she betrays ignorance of the custom of the family when she says that a son of a phulbebahi does not succeed to the Raj which is directly against the custom recorded in the Pachchis Sawal.

The plaintiff''s witnesses, notably witnesses Jagatbandhu Das No. 1 and Ramchandra Dhal No. 7, are competent to depose to the custom of female exclusion. Both these witnesses have been admitted by Mr. Balgobind Kanoongo to be respectable and the loading men of Dompara. The latter is an agnate of the Dompara Raj and the former has been the Peshkar to the Raj for a long time notably during the time of Raja Raghunath a grandfather of Bibhudendra. Ha speaks from his personal knowledge of the time when Purusottam was the Raja and his adoptive mother was excluded from succession when Kishori succeeded in 183(5 when he must have been about 13 years. It has not been shown by the defendants that the instance of Purusottam''s adoptive mother having been excluded is incorrect. None of the witnesses says that Purusottam''s adoptive mother was dead at the time. Ramchandra Dhal, witness No. 7, gives an instance of the Khandpara Raj of the widow of Raja Natabar being excluded from succession and generally says that in the Garhjat and the Killajat estates no female ever succeeds. Khandpara is a Killajat estate whose custom is also recorded in the Pachehis Sawal. The instance given by Rani Krishnachandra Priya Debya of a female succession in Bastar family in the Central Provinces is not relevant for the purpose of disproving female exclusion from succession to the Dompara Raj. There is no reason why the evidence of the plaintiff on the point should not be accepted when the learned Subordinate Judge has accepted it. Therefore though the onus of proving female exclusion from succession in an impartible estate was upon the plaintiff he has discharged it by the evidence given by him which relates both to the family and the tribal custom.

Learned Counsel on behalf of the respondents relies upon the recent-decision of the Judicial Committee in AIR 1925 267 (Privy Council) . That; relates to a custom of exclusion of a sister or daughter in favour of collaterals in respect of ancestral property and the custom there set up was that of an agricultural tribe in the Punjab called the Khatter, and it was held that such a custom could be proved by general evidence given by members of: the family or tribe without proof of special instances. But applying event the stricter standard of proof of custom it is amply proved by the evidence referred to above that females are excluded from succession to the Dompara Raj and two instances, one of Dompara; and another from Khandpara, a similar Baja, have also been given. What evidence will be required to prove such a custom depends upon the circumstances of each case. The genealogy of the family given in the suit of 1867 by both the parties (Exs. P and 22) would show that many instances could not be had, for mostly the Rajas were succeeded by their own sons and in very few instances by collaterals.

According to the evidence Raja Purusottam died issueless in 1856 and his adoptive mother was excluded from succession by Kishori. If there was no custom of exclusion of females, there is no reason and in fact none has been suggested for her non-succession or for her abandoning her right in favour of a distant collateral Kishore two degrees removed from Purusottam. Thus even if the ''Pachchis Sawal'' is not conclusive to prove exclusion of females from succession the evidence in the case establishes such a custom. The result is that Rani Indumati, mother of Raja Bibhudendra, was debarred by custom from succeeding to the Raj, and upon the death of Raja Bibhudendra, on the 10th December 1922, the estate did not vest in her and she did not succeed to the Raj.

The result will be the same whether the Dompara Raj was held by Bhibhudendra exclusively as a separate property without any coparcener or whether it was a joint impartible estate with the plaintiff and his junior brother Brindaban Singh, the two surviving members of the family as coparceners. If it was joint impartible estate, it was held by Raja Bibhudendra according to the custom by which such an estate is held by a single member. It is true that Banamali and Brindaban, the other members of the joint family, had no present right to succeed or any right to demand partition or to control the dealings of the estate by Bibhudendra. They did not acquire any right by birth as in an ordinary joint Mitakshara family but had spes successionis, and upon the death of Raja Bibhudendra the estate would devolve upon Banamali the seniormost collateral by survivorship under the Mitakshara law which admittedly governs the family. The mother of Raja Bibhudendra or any other female would then be excluded under the Mitakshara law without any proof of custom and it is for the defendants to set up and prove a custom of family succession to a joint impartible estate to the exclusion of the collateral coparceners such as the plaintiff. Such a custom was not set up in, the written statement and no evidence was adduced to prove it. The ''Pachchis Sawal'' does not refer to it. In order to explain the custom of exclusion of the Pat Ranee and the other Ranees in favour of ''bradran juddi'' or distant collaterals recorded in the "Pachchis Sawal," the defendands stated in the Court below, as observed above, that females are not totally excluded from succession under the custom recorded in the Pachchis Sawal, but that their successsion is postponed in preference to certain other heirs referred to therein. If the Raj is a joint impartible estate and this statement of the defendants implies setting up a custom of succession of females, particularly the mother of the late Raja in preference to a distant collateral it should have been clearly set up in the written statement and established by evidence. Such evidence is conspicuous, by its absence. Therefore, if the Raj was a joint impartible estate with the plaintiff and his brother as coparceners therein Rani Indumati, mother of late Raja Bidbudendra, would be excluded under the ordinary law of the Mitakshara and the plaintiff is not required to prove the custom of exclusion of females from succession either by a reference to the "Pachchis sawal" or any other evidence. Whether the raj was a joint impartible estate or a separate estate held by Raja Bibhudendra. without any copartner, the parties have not expressly stated in the pleadings and no issue was raised nor was any evidence given and the judgment does not refer to it. The point however became the subject of great discussion before us by counsel on both sides. Therefore this question as well as the rights of the parties have to be-dealt with from both points of view.

Mr. Hasan Imam for the appellants contended that in the plaint as well as in the evidence the plaintiff sets up a case of the Dompara Raj being a separate estate held exclusively by Raja Bibhudendra without any coparcener. He referred to para. 3 of the plaint which says:

that according to family and tribal custom, female members howsoever nearly related are-always excluded from inheritance.

In para. 11 where it is stated:

the adoption of defendant 1 on 18th December 1922 by Rani Indumati cannot divest the estate which had already vested on 10th December by inheritance in the plaintiff, the nearest collateral heir of the last male-holder,, the late Bibhudendra Mansingh,

which was reiterated verbatim in para. 12. Paras. 6 and 7 refer to Kishori Mansingh as having succeeded to Purusottam Mansingh as his "preferential heir" and in para. 7 the plaintiff says he is the rightful heir to the estate. Reference is also made to plaintiff Banamali Singh''s evidence. In chief he said:

Madan and Kishori were separate before. Kishori got; the Raj.

In cross-examination this was challenged and the plaintiff stated:

I have heard that the mother of Purusottam severed her son from my ancestors.

The defendants in the written statement denied that on the death of Raja Bibhudendra the estate vested in the plaintiff and stated that:

conceding though not admitting that on the death of Bibhudandra the disputed properties vested in anybody, they vested in Rani Indumati as mother and heir of Bibhudendra and if by the adoption she divested anybody she divested herself (para. 15).

If would thus appear that the case of both parties in the Court below was that the Dompara Raj was a separate impartible estate held by Baja Bibhudendra and that it was not a joint impartible estate and the learned Subordinate Judge has treated it as such as will appear from the manner in which he dealt with the question of vesting und divesting the estate by the adoption made by Rani Inadumati.

Mr. Sen, however, contended before us that the case made in the plaint and in the evidence was not of a separate impartible estate and that it was open to him to contend that it was a joint impartible estate and he says that the expressions used in the plaint referred to above would apply to a joint impartible estate as succession to such an estate is always by inheritance unlike an ordinary partible joint estate where the succession is by survivorship. Therefore, he says that the statements in the plaint are not inconsistent with the case of a joint impartible estate. He has, however, not been able to explain satisfactorily the statement made by the plaintiff Banamali Singh towards the end of his examination-in-chief that "Madan and Kishori were separate before Kishori got the Raj" and in cross-examination:

I have heard that the mother of Purusottam severed her son from my ancestors (Madan and Kiahori).

What else could be the object of these statements except to prove separation of Madan and Kishori from Raja Purusottam. This was evidently with a view to show that Purusottom''s mother would have succeeded to the Raj after the death of Purusottam but that she did not do so on account of there being the custom of female exclusion. The learned advocate who examined the Plaintiff Banamali Singh in the Court below ultimately intimated to the Court through his counsel that this was the object with which he put the question-in-chief and got the answer that Madan and Kishore were separate before Kishori got the Raj. A plain reading of the pleadings gives the same impression that the parties treated the Raj as a separate estate in the hands of Raja Bibhudendra. Be that as it may, the mother of Bibhundendra would be excluded from succession whether the Raj was a joint or separate impartible estate: in-the former case inasmuch as the custom of female exclusion has been established by the evidence in the case and in the latter case under the Jlaw females would be excluded from succession to a joint estate. Thus, in any case Rani Indumati did not succeed to the Raj after the death of her son Raja Bibhundendra and the estate did not vest in her. Raja Bibhundendra died on 10th December 1922 and the adoption took place on 18th December 1922. Therefore at the time when succession opened the adopted boy was not in existence and the estate vested in Banamali irrespective of whether it was a joint or separate impartible estate as a Hindu estate cannot remain in abeyance.

The question then is whether the adopted boy would divest the estate which had devolved upon the plaintiff by reason of his subsequent adoption by Rani Indumati. If she had bean the heir of her son the late Raja Bibnudendra the adopted boy would have been entitled to succeed as she only would have been divested and no one else. This is settled by authorities : vide Verabhai Ajubhai v. Bai Hiraba [1903] 27 Bom. 492, Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi [1876] 1 Mad. 174, Gavdappa v. Girimallappa [1894] 19 Bom. 331. Payapa Akkappa v. Appamma [1898] 23 Bom. 327 Mallaya v. Hanmappa [1920] 44 Bom. 297, Venkappa Bapu v. Jivaji Krishna [1900] 25 Bom. 303 ;Tripuramba v. Venkataratnam AIR 1923 Mad. 517 and Mondakini Dasi v. Adinath Dey [1891] 18 Cal. 69. But in the present case the estate devolved not upon her on the death of Bibhudendra but upon the plaintiff. The subsequent adoption by her would not divest the estate vested in the plaintiff : vide M t. Bhoobun Moyee Debia v. Ram Kishore [1868] 10 M.I.A. 279, Padmakumari Debi v. The Court of Wards [1881] 8 Cal. 302, Thayammal v. Venkatarama [1887] 10 Mad. 205, Manikyamala Bose v. Nanda Kumar Bose [1906] 33 Cal. 1306, Bhubaneswari Debi v. Nilcomul'' Lahiri [1885] 12 Cal. 18, Harek Chand Babu v. Bijay Chand Mahatab [1905] 2 C.L.J. 87, Ramkrishna Ramchandra v. Shamrao Yeshwant [1902] 26 Bom. 526, Mondakini Dasi v. Adinath Dey [1891] 18 Cal. 69 and Faizuddin Ali Khan v. Tincowri Saha [1895] 22 Cal. 565. These are cases relating to an adoption by a widow to her husband who died separate from his agnates and had a separate estate. Therefore if the Dompara Raj was a separate estate of Bibhudendra, the adoption by his mother after the estate had vested in the plaintiff was invalid and would not divest the estate so vested.

In Annaumnah v. Mabbu Bali Beddy [1875] 8 M.H.C.R. 108 and Bhimabai v. Tayappa Murarrao [1913] 37 Bom. 598 the adoption was made by the widow after the son of her husband had died unmarried as in this case. The adoption was held to be invalid because upon the death of the son the inheritance vested in someone else and not in her. The case of Bhimabai v. Tayappa Murarrao [1913] 37 Bom. 598 is exactly similar to the present case as will appear from the following genealogy:

Krishnappa=Bhimabai (Dett 1). (Died 1838). | _________________________________________________ | | | Bhogappa daughter. Jayrao defan (Adopted in 1899 Deft. 11. dant 10 ad by defendant opted by de 1), died in 1902 fendant 1 in unmarried. 1924. 50. On the death of Bhogappa in 1902, who died unmarried three or four years after his adoption, Bhimabai, the widow of Krishnappa was excluded from succession to her first adopted son by custom of female exclusion and an agnate, namely, paternal uncle, plaintiff in the suit, succeeded Bhogappa. The adoption was held to be invalid. Now plaintiff Banamali in the present case stands in the place of the plaintiff in that case, an agnate of Krishnappa ; Rani Indumati in place of Bhimabai, widow of Krishnappa and Jay rao, the second adopted boy,, defendant in the case, in place of Amarendra, defendant 1 in the present ease. It was held that the adopted ''boy did-not divest the estate which had vested'' in the plaintiff in that case.

Now what will be the result if the Dompara Raj was a joint impartible estate and the plaintiff was a coparcener having spes successionis in him? Three-cases of the same family at different-stages and under different circumstances-which occurred in the Madras Presidency bear on the point, and they may now be conveniently considered here. These cases relate to a joint impartible zimindari in the district of Ganjam. The following genealogical table will be-helpful in considering these cases:

CHANDRAMONI DEO. | ______________________________________ | | Adhikanda=Kundana Devi Raghknadha. (died 23--11--1868). | | Vaisnab (died | 18--9--1906) | | _______________________________________ | | | | Brajakishore=Ratan Madan Mohan | mala (Adopted son, (2nd adopted son | being adopted by Kun being adopted in | dan Devi on 1907 by Kundana | 20--11--1870). Devi after Braja | kishore''s death).| (Died on | 3--9--1906). | | | ________________________ | | | Jagnnadha Gajapati | (Adopted by Ratanmala, widow | of Brajakishora on 5--11--1915). | | Purusottam (died Oct. 1915.) | Kunjabehari (defendaat- respondent). 52. On Adikanda''s death in 1868 the estate passed to Raghunada, his undivided brother. Two years after in 1870 Kundana Devi, widow of Adikanda, adopted Brajakishore. Raghunadha contested the adoption. The adoption was upheld: Tide Raghunadha v. Brozo Kishore [1876] 1 Mad. 69 and plaintiff Brajakishore, the adopted boy was held entitled to succeed to Raja. Adikanda, his adoptive father, although the estate had before his adoption passed to Raghunadha, brother of Adikanda. After his death on 3rd September 1905, the estate passed to Vaisnab, son of Raghunadha, who died a few days after on 18th September 1906, and the estate passed to his son Purusottam. A year after, in 1907, Kundana Devi made a second adoption and adopted Madan Mohan who sued for recovery of the estate from Purusottam. The suit was dismissed and the adoption was held to be invalid: vide Madan Mohan v. Purushottama [1911] 38 Mad. 1105. The decision was upheld by the Privy Council: vide Madan Mohan v. Purushottama AIR 1918 P.C. 74. Their Lordships held that while the adoption of Brajakishore, the first adopted boy, was valid and operated to oust Raghunadha whose right to enter the estate was only temporary, just to prevent the ownership from being in abeyance pending any such succession to his elder brother as the adoption brought about, she was in a different position when she endeavoured to effect a second adoption. She could have on the first occasion:

by exercising the power of adoption conferred on her, established a direct succession to the estate of her husband Adikanda which related back to his death. On the second occasion the ownership which had become vested in Brajakishore had intervened and it was only to his estate that sho could possibly establish a succession.

Accordingly, it was held that the authority to adopt conferred on Adikanda''s widow came to an end when Brajakishore, the son she originally adopted died after attain ing full legal capacity to continue the line either by the birth of a natural born son or by the adoption of a son to him by his own widow. The judgment by the High Court of Madras in this casa was delivered in April 1914, invalidating the second adoption by Kundana Devi. Thereafter, on 5th November 1915, Ratnamala, widow of Brajakishore, purporting to act under the authority of her husband adopted Jagannath Gajapati. Purusottam having died in the meantime in October 1915, the estate passed to Kunjabehari. Jagannatha Gajapati brought a suit ''against Kunjabehari to recover the estate as an adopted son of Brajakishore. The judgment of this case is reported in Gajapati Anaga Bhima v. Kunja Bihari Deo [1918] 49 I.C. 929. The suit was dismissed upon the ground that the deed executed by Brajakishora giving authority to his widow to adopt was inadmissible in evidence as being unregistered, but it was held that had the deed bean not inadmissible the adoption by Brajakishore''s widow would have been valid and would have the effect of divesting the estate which had by survivorship passed to the defendant Kunjabahari and the fact that the estate has passed to a collateral heir by survivorship in a join impartible zamindari does not extinguish the power of adoption given by a man who held an indefeasible estate, the succession to the estate being only provisional and subject to the emergence of a male heir to the latter. The parson takes the estate till such heir comas into existence or his heir only takes a defeasible estate. It was also held that the theory that the adoption must be made to the last mala holder has no application to the case oi impartible zamindari.

Seshagiri Aiyar, J. quotes the following passage in the judgment of the Judicial Committee in the case of Sri Madan Mohan v. Sri Purushottama AIR 1918 P.C. 74

The authority to adopt conferred on Adikanda''s widow was brought to an end when Brajakishore, the son she originally adopted, died after attaining full legal capacity to continue the line either by the birth of a natural born son or by the adoption to him of a son by his own widow,

and also the passage:

But Raghunadh''s succession was of a Character only provisional and subject to defeasance by the emergence of a male heir to Adikanda.

Relying upon this case as well as the case of Venkatramier v. Gopalan [1918] I.C. 48 which was decide:! a month before, Mr. Hasan Imam says that in a joint Mitakshara impartible estate adoption need not be made by the widow of the last full owner, but it may be made to the predecessor of the last full owner, a member of the joint family, and thus ha says the adoption made to Brajandra by his widow after the estate had passed to his son Bibhudendra is valid. The genealogy in that case is as follows:

X | __________________________ | | Ramsami Sastri Venkataramier. (widow). | __________________ | | first sdopted son Gropalan (second ad (sic)by the widow, who optad aon, adopted (sic) at the age of 4). after the death of boy).

After Ramsami''s death his widow under the authority from her husband, first adopted a boy who having died the widow again adopted Gopalan, the respondent. ''Before the second adoption the family property had passed by survivorship to the undivided uncle Venkatramier, the appellant. Gopalan, the second adopted son, brought a suit for partition of his share of the joint family property and for recovery of possession of the separate properties of Ramsami Sastri. The contentions that the adoption was not to the last male holder and the property not having vested in the adoptive widow the adoption was invalid, were overruled and it was held that the adoption by the widow of a deceased Hindu coparcener after the death of a prior adopted son while an infant and unmarried is valid and the second adopted son inherits to both the joint and separate properties of his adoptive father; and Phillips, J., further held that

the theory that an adoption should be to last male-holder is not applicable to the joint Hindu family living in coparcenery.

Mr. Sen distinguishes the case of Gajapati Anaga Bhima v. Kunja Behari Deo [1928] 49 I.C. 929 referred to above on the ground that there the adoption which was being considered was made by the widow of Brajakishore who was an adopted son of Adikanda and who upon his adoption became a coparcener with Raghunatha. Brajakishore divested Raghunatha and became himself the proprietor of the estate, and this was upheld by the Privy Council in Raghunatha v, Brozo Kishore [1876] 1 Mad. 69 and the adoption by his widow Ratnamala was to him as the last holder of the estate. Seshagiri Aiyar, J., himself stated that adoption made by Brajakishore''s widow would have been valid, upon the ground that he was the last male holder, However, he proceeded to decide that in a joint Mitakshara impartible estate, adoption need not be to the last holder which was not necessary for the decision of that case, for as shown above the adoption was to Brajakishore who was the last male holder. The other case is of Venkataramier v. Gopalan [1918] I.C. 48. The relationship in that case was similar to that in the present case with this difference: that the first adopted boy in that case died at the age of four years and Bibhudendra in the present case died at the age of over 20 years six months. Mr. Sen distinguishes the case upon the ground that the first adopted son in that case being four years of age had not attained full legal capacity to make an adoption, whereas Bibhudendra had attained legal capacity to adopt. And he says that if these cases meant to lay down any other principle it would be contrary to the principle laid down by their Lordships of the Judicial Committee and says that these cases were wrongly decided by the High Court of Madras and are contrary to the principles laid down by their Lordships of the Judicial Committee in Madan Mohan v. Purushottam AIR 1918 P.C. 78 and he refers in particular to the following passage in that judgment:

She (widow of Adikanda) could on that occasion (in adopting Brajkishore) by exorcising the power conferred on her establish a direct succession to the estate of her husband Adikanda which related back to his death. On the second occasion the ownership which had become vested in Brajakishore had intervened and it was only to his estate that she could possibly establish a succession.

Mr. Sen says that this passage clearly indicates the view of their Lordships that adoption could be made only to establish a succession to the last full owner and as it was not made to the first adopted son who was the last holder of the estate their Lordships held that the second adoption to the adoptive father of the first adopted boy was invalid. The fact that Brajakishore the first adopted boy had in that case left a widow was an accident and is not the ratio decidendi of that decision, for while their Lordships (at p. 860) refer to the fact that it was not known whether she had power from her husband to adopt or not, they observe that in doing so:

They do not desire to be understood as saying that even in its absence the succession put. Hence he is called Putra. For the same purpose, according to Vasishtha a widow after the death of her husband can make an adoption for him. In Bengal and in Upper India including Behar, that is, in Bengal and Benares Schools she can adopt only with the express authority of her husband. In Bombay and the Madras Presidencies she may adopt without such authority; in the one case with the assent of her sapindas and in the other without it. We are concerned with the law that obtains in the Benares School. A widow in that School can make successive adoptions according to the direction of her husband and there is no time limit fixed for her to make an adoption and she can make an adoption at any time before her death: Madana Mohuna v. Purushottham AIR 1918 P.C. 74. of Brajakishore and his dying after attaining full legal capacity to contionue the line would not in themselves have been sufficient to bring the limitin principle into operation, and so to have so determined the authority of adikanda�s widow, who was not the widow of the last owner and could not adopt a son to him

Thus, Mr. Sen contends that their Lordship ladd down the limit to the power of adoption by a widow to depend upon only two circumstances: (1) the succession of the son of the husband of the widow; and (2) that son dying after attaining full legal capacity. They say these are �in themselves sufficient to bring the limiting principle into operation� and �to have determined the authority� of the father�s widow who was not the widow of the last owner and who, therefore, �could not adopt a son to him.

The learned Subordinate Judge has held in deciding issue 12 in suit 1 of 1924, at p. 145 of the paper book, that Bibhudendra having died at an age of 20 years six months �under the Hindu law he attained full age and legal capacity to continue his line.� These findings are sufficient, according to Mr. Sen, to bring the limiting principle into operation, and the widow�s power came to an end in terms of the decisions of their Lordships of the Judicial Committee referred to above. Bibhudendra, being under the Court of Wards was technically a minor until he attained the age of 21 years, and though unbder Section 61, Court of Wards Act (9 of 1879 B.C.) he could adopt only with the consent of the Government, his minority in itself was no bar to and adoption. The only condition laid down in Hindu law is that he should have attained the age of discretion. In Jumoona v Bama Soondari [1876] their Lordships held that a male youth of the age of 15 years is regarded as having attained the age of discretion and is competent to adopt or to give permission to his widow to adopt: vide Rajendra v. Saroda [1871] 15 W.R. 548; Modakini v. Adinath [1887] 14 Cal. 781 and Basappa v. Sidramappa [1918] 43 Bom. 481.

The Indian Majority Act, which fixes the age of majority to 21 years in the case of minors under the Court of Wards and to 18 years in the case of others, expressly leaves out the question of marriage, divorce and adoption unaffected which has to be determined under the Hindu law alone : vide, Section 2, Majority Act. An unmarried person can also under the Hindu law make an adoption. There fore, Bibhudendra had attained(cir)age and legal capacity to continue(cir) line by marriage or by adoption. (cir) fact that the sanction of the Court of Wards may be necessary in respect thereto does not affect his legal capacity to do so. Upon these grounds Mr. Sen distinguishes the decision in Gajapati Anaga Bhima v. Kunja Bihari Deo [1918] 49 I.C. 929 and Venkataramier v. Gopalan [1918] I.C. 48 and says that even if they be distinguishable they went contrary to the principles laid down by their Lordships of the Judicial Committee in Madan Mohan v. Purushottama AIR 1918 P.C. 74. Mr. Sen cites the follollowing cases where adoption was by the widow of the last male holder : Surendra v. Sailajakanta [1891] 18 Cal. 385 and Bachoo v. Mankorebai [1907] 31 Bom. 373. These cases are consistent with the principle laid down by their Lordships of the Judicial Committee in Raghundha v. Brozo Kishore [1876] 1 Mad. 69. In the Dayabhaga cases and in a separate Mitakshara family, where succession is not by survivorship, adoption is valid if made to the last male holder or where the estate vests in the adoptive mother after the death of a natural or adopted son even if he had attained full age and legal capacity to continue the line: vide the latest decision of the Madras High Court in Tripuramba v. Venkataratnam AIR 1923 Mad. 517. It is otherwise if the adoption is made by the widow when she does not succeed to her son, the last male holder even when the son dies unmarried: Faizuddin Ali Khan v. Tincowri [1891] 18 Cal. 69

According to the original texts of Yajurveda, Manu, Atri, Vasishtha and others a person who is sonless, that is, l who has not got a son, grandson and great-grandson, should adopt son for the sake of funeral oblations, libations of water and obsequial rites, for by having a son he is absolved from the debts to ancestors, attains immortality and is saved from the infernal region called put. Hence he is called Putra. For the same purpose, according to Vasishtha a widow after the death of her husband can make an adoption for him. In Bengal and in Upper India including Behar, that is, in Bengal and Benares Schools she can adopt only with the express authority of her husband. In Bombay and the Madras Presidencies she may adopt without siuch suthority; in the one case with the assent of her sapindas and in the other without it. We are concerned with the law that obtains in the Benares School. A widow in that School can make successive adoptions according to the direction of her husband and there is no time limit fixed for her to make an adoption and she can make an adoption at any time before her death: Madana Mohuna v. Purushottham AIR 1918 P.C. 74.

Although there is no text of Hindu law bearing on the subject the Courts have laid down that her power to adopt becomes incapable of execution on the vesting of her husband''s estate in some one other than herself. This is upon the ground that a Hindu estate cannot remain in abeyance and the widow should not by delaying the exercise of the authority given to her to adopt disturb the vested interest of others. An adopted son is mentioned by Mann as occupying the third position out of 12 kinds of sons and acquires the same status as an aurasa or son begotten after his adoption. For certain purposes the adoption by a widow relates back to the death of the husband, such as, for the purpose of continuing a family, trading, partnership of which he was a member, to set aside an antecedent gift of her husband''s property made by his widow and to dispute the propriety of other alienations if unsupported by legal necessity or benefit.

This is of course upon the principle that upon his adoption he acquires a vested interest in the adoptive father''s property and he can dispute the improper dealings by the widow before his adoption. But otherwise the adopted son acquires rights only from the moment of his adoption. Where the widow had made an adoption after surrendering her estate to her daughter it was held that the adopted son was not entitled to avoid the surrender: Rama Nana v. Bhondi Murari AIR 1923 Bom. 432. He cannot also question the propriety of his adoptive father''s previous alienations. It follows that the adoption to a person by his widow does not relate back to his death except for certain purposes, such as those mentioned above. In the case of Harekchand v. Bijoy Chand [1905] 2 Cri.L.J. 87 it was held that the title of a son adopted by a widow under authority from her husband does not relate back to the death of the husband, and when the adoption has taken place his fictitious birth in the new family cannot be antedated. It is upon this principle that an adopted son cannot divest the estate which before his adoption had been inherited by a person not from the adoptive father but from his son or other heirs. If the adoption had related back to the death of the father, an adopted son would have in the case of a separate Mitakshara family divested a person where after the death of the natural born son of the adoptive father the estate had, say by custom, vested before the adoption in a person other than the adopting mother, for he would have become the brother of the deceased son of the adoptive father and nearer in relation to him from the moment of the latter''s death. Such was the case in Bhimabai v. Tayappa [1913] 37 Bom. 598, but the adoption was held to be invalid: vide also Faizuddin Ali Khan v. Tincoiwri [1895] 22 Cal. 565, a Mitakshara case.

In a Mitakshara joint family an adoption is deemed to be a new birth of the adopted son in the family of the adoptive father. If the adoption is by the father himself, he becomes a coparcener in the joint family property of his adoptive father from the moment of his adoption and he acquires all the rights that an aurasa son would have from the moment of his birth. If the adoption is by the widow he becomes a member of the family from the time of his adoption. If the property be his father''s ancestral property it becomes his ancestral property in which he takes the same vested interest from the time of his adoption as a natural born son from the moment of his birth: Rambhat v. Lakshman [1881] 5 Bom. 630. If the interest of the father has already been taken by his natural son before adoption, there is nothing left in him and his natural born son becomes a coparcener in the joint family. It follows that a son adopted by the widow after the other members of the joint family have taken the interest of the deceased''s natural born son in the ancestral property by survivorship, cannot take anything inasmuch as his adoptive father had nothing at the time of his adoption and the other members had not taken from the adoptive father but from the son of the adoptive father. An adoption would then be made only to the deceased''s son, for it is to his estate that succession can be established by adoption as observed by their Lordships of the Judicial Committee in Madan Mohan v. Purushottama AIR 1918 P.C. 74.

As observed above, the object of the adoption is three fold:

(1) Spiritual purposes, (2) continuity of line and (3) preservation of the property. The first two can stand apart from the last one. The purpose of adoption for preservation of the property would be only in respect of such property as the adoptive father had at the time of his adoption. If he had no such property as in the case of a pauper, the adoption for that purpose fails. If the widow delays the adoption considerably, with the result that the estate of her husband passes successively to other persons, the adoption for the purpose of succeeding to that property fails and hence the question of vesting and divesting and the principle that adoption should be made to the last holder comes in for the purpose of preventing the disturbance of vested rights. The matter is to be determined not by any special rule of Hindu law on adoption and the texts bearing on adoption have already been referred to but under the common law. Confusion, has, however, arisen in some cases on account of an attempt to justify the extinction of the power to adopt by bringing in a fictitious principle that adoption relates back to the death of the adoptive father or to the date when the authority is given to his widow to adopt, the adopted boy being considered to be fictitiously conceived and in embryo just as a posthumous aurasa son. In the case of Partap Singh v. Agar Singhji AIR 1918 P.C. 192 (of 43 Bom.) their Lordships while holding that the widow may by her adoption prevent a maintenance grant made to the male descendants of a junior line from lapsing to the grantor in a joint impartible Zamindary which had devolved on the undivided brother of the deceased holder, observed:

But here the adoption was made immediately alter the death of the grantor.

and pointed out that the case might be different

if a Hindu widow lies by for a considerable time and makes no adoption and the property comes into the possession of some one who would take it in the absence of a son natural or adopted and such person were to create rights in such property within his competency whilst in possession.

In the present case after the death of Bibhudendra, the last male holder, the property passed by survivorship to the plaintiff and the adoption by the widow not being to Bibhudendra but to his father would not divest the estate which had devolved upon the plaintiff by survivorship, he having taken from Bibhudendra, and not from his father.

Thus, even if the Dompara Raj is a joint impartible estate, the adoption of defendant 1 by Indumati was invalid and did not purport to divest, the estate which had already vested in the plaintiff Banamali; but I have shown that by the parties in the Court below both in the pleadings and in the evidence as well as in the judgment of the Court below the estate was treated to be a separate estate of Bibhudendra. In that case, as already shown, unquestionably the adoption was invalid.

The defendants, however, say that the plaintiff is estopped from challenging the rights of Amarendra, inasmuch as he consented to the adoption and attested the two deeds (Ex. G-l-1 and G-2). True, he did attest them, but the adoption was not brought about by anything said or done by him or by any representations made by him. He came to the scene at the last moment. Apparently everything was pre-arranged and the adoption took place without his being consulted about it. He did not in any way bring about the adoption. He says that he signed the deeds in ignorance of his rights and was induced to do so by the lawyers present there from beforehand. The evidence on behalf of the defendants is that his signature was taken because it was thought necessary to have the deeds attested by friends and relations. This is not sufficient for estoppel. Even if he consented to the adoption, that will not make the adoption a valid one, which was invalid, inoperative and ineffective. It would not also in any way prejudicially affect his rights. I have considered the case cited by the parties. There was no express representation of fact which led the defendants to act on it and thereby affect the legal rights of the plaintiff: vide Dhanraj v. Sanibai AIR 1918 P.C. 118.

I therefore hold in agreement with the Court below that the adoption was invalid.

The suit was rightly decreed and I would accordingly dismiss the appeal with costs.

Scroope, J.

The subject-matter of this litigation is Killa Dompara an impartible estate and one of the killajat mahals of Orissa in the district of Cuttack and the plaintiff Banamali Singh Samanta claims it as the senior-most agnate of the male collaterals of the last holder Bibhudendra Man Singh Bhramarbar Rai, who died by drowning on 10th December 1922 aged 20 years and months 6, against defendant 1 Amarendra Mansingh Bhramarbar Rai who is set up as the adopted son of Bibhudendra�s, father and immediate predecessor Brajendra Mansingh having been adopted by the latter''s widow, defendant 3 Rani Indumati Patmahadei. On the death of Brajendra Mansingh the Court of Wards took charge of the estate as his son Bibhudendra was a minor and was in charge when Bibhudendra met his death by drowning. Defendant 2 was a third claimant on the ground that he is the son of Brajendra Mansingh by a second wife who was legally married to him in phulbebahi form according to the family custom. This defendant 2 filed a suit of his own which was tried jointly with the suit out of which the present appeal arises and was dismissed: so we are not concerned with that case now.

In the present case the lower Court held that there was a custom in the estate of a female exclusion from succession to her son on his death by drowning on 10th December 1922, that the authority to adopt was exhausted when Bibhudendra died and that Banamali as the nearest agnate was entitled to succeed. The defendant Rani and her adopted son now appeal.

Besides those indicated above other issues were raised in the lower Court notably as regards Banamali''s relationship and the ceremonial validity of the adoption, and on these two points the learned Subordinate Judge found in favour of the plaintiff and defendants respectively, and these findings have not been challenged in the appeal or by way of cross-objection. Therefore we are concerned in this appeal with three points: (i) the question of female exclusion; (ii) the effect of the adoption; (iii) estoppel.

As regards the first the evidence produced in support of it consists of oral evidence of witnesses connected with the family, statements in Stirling''s Account of Orissa, and in a small pamphlet usually known as the Pachchis Sawal, which is a record embodying answers given by the chiefs of the sixteen feudatory mahals in Cuttack and certain killas, to questions put in 1814 by the then Superintendent as regards the customs prevailing in these estates. Stirling, at p. 39, after referring to the two great natural divisions of Orissa, namely "the extensive hilly regions, forest tracts, jungle, pergannas and mahals generally known as the Rajwara and "the more fertile and productive portions" known as the Mogulbandi expresses the view that

the former have been in all ages parcelled out among and occupied by a number of chieftains of the military class. These chieftains,

he says:

may be safely considered as de facto proprietors of their possessions under the native Governments, that is to say, they had them hereditarily, exercised uncontrolled territorial jurisdiction within their limits, and appropriated the entire revenues, subject to the condition of performing military service, or other offices and duties, at the Court of their superior Raja, the Gajapati, residing mostly at Cuttack, which services have in later ages been generally commuted for a light tribute or money payment. The more fertile and productive division of the province (now the Mogulbandi) formed the kot, khaliseh, or domain of the province from which the Hindu sovereigns of Orissa, like their successors the Moguls, Mahrattas, and English derived their principal revenues.

He compares these feudal chiefs in Orissa in their situation and duties to the Lords of the Marches in Europe and then goes on to say at p. 40:

Nor is the above the only striking feature of analogy between the feudal lords of India and the western hemisphere. The estates or jurisdictions of that class in Orissa were always called by the Hindus, garhs and by the Mussulmans, killas or castles.

The position consequent upon the subjection of the province to the Mogul Government has been summarized in para. (b) under issue 2 of the judgment of the learned Subordinate Judge and it is unnecessary to recapitulate it here, but I supplement it by the following extract from Maddox''s Settlement Report, para. 610, p. 428, Vol. I, which conveniently delineates the position up to and shortly after the early days of the British occupation after 1803.

Besides the permanently-settled mahals and the temporarily settled estates of the Moghulbandi there are in Cuttack and Balasore certain estates known as killajat and occupying an anomalous intermediate position. There are killas Dompara, Balrampur, Ragri, Chausatipara and Kantajhar, in Cuttaek, and killas Ambo, Mangalpur and Patna in Balasore. They are in the settlement of Raja Mausingh in 999 A.D. left as part of the rajwara, Ambo Kantajhar, Ragri and Balrampur being all a dependent fief of the zamindar of Keonjlar. The Mahrattas, however, resumed all these estates (except Dompara which was of the nature of a jagir) and collect the revenue (jama not peskas) directly but left in possession their former holders variously styled zamindars. bhumns and khandaits and occasionally in later correspondence, Rajas. They were all men of ancient Hindu stock, allied to the chiefs of the Gharjat estates and some claiming royal descent flora the prehistoric times, their succession was governed by the law of primogeniture, lands being assigned for the maintenance of the younger brethren, and they kept upon a small scale the pomp and dignity of independent chiefs. Some, as we know, of the killas of the Rajwara obtained on the British conquest recognition as tributary estates, others, as Aul, Kujarg. Kanika and Sukinda, with claims differing but little from those of the estates now dealt with, received a permanent settlement, but the eight killas in question were brought on to the roll of temporary settled estates, and their revenue was on different occasions enhanced. Dompara was in 1829 restored to the position of a permanently settled zamindari, provided only that in the event of any alienation the assessment should be open to revision.

The important facts then with reference to this case which emerge from this consideration of the early history of Orissa is that killa Dompara was one of the killajat estates within the dominions of the Kaja of Khurda and that its sardar or chief was one of his Hindu vassals.

Now one of the factors which weighed with the Subordinate Judge in coming, to the conclusion that there was custom of female exclusion was the feudal nature of the tenure and Mr. Hasan Imam for the appellants contends that he laid altogether undue stress on Stirling''s conclusions and that they have been treated as authoritative and final when they should only have been treated as evidence in the case. He contends that even accepting Stirling''s view this author has nowhere stated that there is any custom of female exclusion in the states of Orissa and that the lower Court has merely deduced it from the feudal nature of the estate and from the fact that a woman cannot discharge the duties of a "Lord of the Marches." He argues that even if there was a custom of female exclusion then it must have arisen from the direction of the king or overlord, that this could not amount to custom, and that on the passing of this state of things with the advent of the British rule and there having been nothing military or feudal in the tenure since that period the estate must now be regarded as an ordinary zamindari with no special custom adhering thereto by reason of its former feudal nature.

The learned Subordinate Judge may not have very carefully expressed himself when he writes as if he deduced this custom of female exclusion from the feudal nature of the estate; but it is quite clear that he took into consideration all the evidence in this case. Stirling''s Minute on Tenures of Orissa is part of his Account of Orissa and the latter has been referred to by their Lordships of the Privy Council in Ramakanta Das v. Shamanand Das Mahapatra [1909] 36 Cal. 590 as a "very carefully drawn and reliable" document; his work has thus the imprimatur of their Lordships of the Privy Council and is undoubtedly deserving of considerable weight on any question referring to Orissa. All that it need be relied on for here is as establishing the feudal nature of these estates and that is a fact which undoubtedly tells in favour of the theory of female exclusion though it is not a decisive consideration. Unquestionably the most reliable evidence on this matter is to be found in the Pachchis Sawal. This brochure also is well known as an authority on the customs in force in the killajat and feudatory states of Orissa and in three Calcutta cases it has been treated as such: Raja Shamsunder Muhundur v. Kishun Chandera Bhoiwurbur Rai [1825] 4 Sel Rep 49, Gopal Prasad Bhagat v. Raghunath Deb [1904] 32 Cal. 158 and Raja Braja Sundar Deb v. Srimati Swarna Manjeri Dai [1918] 47 I.C. 36.

The questions which concerns the present case are Nos. 12, 13, 14 and 15 and it is the answer to 14 which the lower Court has found decisive in favour of the respondent s plea as regards custom. It has, however, been argued for the appellants that both question and answer No, 12 clearly contemplate female inheritance and that the answer to question 14 which the plaintiff relies on cannot be reconciled with answer 12 unless we limit the expression �bradran juddi" to mean "descendants from the paternal grandfather" a class which admibtedly would not embrace the respondent Banamali.

The four questions and answers can be conveniently summarised and when put side by side the difficulty seems to me to disappear.

Q. 12.--Suppose a Raja leaves only a son by a concubine and (a) no sons by his phulbebahis or slave girls (b) no brother (o) no nephew (d) no pat rani (e) no daughter by a pat rani, who succeeds?

A. This concubine''s son might sucoeed if there are none of tho heira of the kind indicated above and no bradran juddi.

Q. 13.--Suppose a Raja leaves: (b) a brother: (c) a nephew (d) a Pat Rani (e) a daughter by a Pat Rani, who succeeds?

A. The brother would succeed.

Q. 14.--Suppose a Raja leaves (b) no brother (a) no nephew; but (d) a Pat Rani (e) daughter by another Rani, who succeeds?

A. The nearest of kin among the brothers of the Raja''s grandfather.

Q. 15.--Suppose a, Raja leaves (b) no brother (C) no nephew (d) no Pat Rani (e) Ranis (f) Kani''s daughters who succeeds?

A, The nearest of kin among the brothers of the Raja''s grandfather.

For the appellants undue stress is laid on the expression "heirs" in the answer to question 12. The answer, however, does no more than detail the conceivable circumstances in which a son of a concubine would succeed. Seeing that there is a specific question, namely, question 14 which deals with the rights of succession of a pat rani and her daughter when no brother or nephew survives, I cannot see why we should treat the hypothetical reference in the answer to 12 as overriding the specific answer to 14 and go out of our way to draw incidental conclusions from a question and answer, which do not specifically deal with the point at issue when we have a question and answer which does specifically deal with it, and that is question 14. It is the use of the word "heir" in answer 12 which has led to this difficulty, but it must be remembered that in the early days of British rule the wording of general enquiries of this kind and the answers to them could not have been a matter of exact draftsmanship. If female succession was so well known and established as to be an assumption underlying question 12 and other questions, where was the necessity for questions 14 and 15 at all? Then Mr. Hasan Imam argued that anyhow the expression "braderan juddi" has been given too wide an interpretation in the Government translation which takes it to mean "brethren" or "brothers" of the Raja''s paternal grandfather; he contends that it must mean no more than brethren of the Raja connected with him through his grandfather." One ground for this contention is that this is the only means of reconciling answers 12 and 14, but I have already indicated above that there is no necessity for any such reconciliation when the question and answers are looked at comprehensively instead of treating each question by itself.

Both sides called expert witnesses as to the correct translation of "braderan juddi" and "pita moho."

Mr. Abdul Qadir examined by the plaintiff is an Arabic scholar holding the degree of M.A. in that language in in the first class. He translates the answer to question 14 as follows:

From among the brethren or relations connected with the deceased Raja through his grandfather or ancestor whosoever may be the nearest in kin.

Moulvi Muhammad Mohsin, a Sub-Deputy Collector, bears him out; the defence examined two expert witnesses also, who would limit the expression to mean "brethren of the Raja descended from the grandfather," and stress was laid on certain passages in the evidence of the plaintiffs'' experts as bearing out their contention, for instance, Mr. Qadir said that the translation given in the Pachchis Sawal to question 14, viz., "The nearest of kin among the brothers of the Raja grandfather''s was not correct but reading the whole of his evidence it is obvious that what the witness meant was that the translation of "braderan juddi" as "brethren of the grandfather" was not absolutely accurate and that it could mean "brethren of the grandfather" or a more remote ancestor. Similarly Mr. Mohsin''s statement that primarily "juddi" meant "descendants from grandfathers" was stressed by the defence, but the defence cannot get away from the fact that any standard Arabic or Persian dictionary, as Mr. Qadir pointed out, gives "ancestral" as one of the meanings of the word "juddi".

Even the defence witness Mr. Ahmad admitted that juddi would mean father''s father and upwards. There was a similar conflict about the Uriya word "pita moho," but I think it is merely used to make it clear that it is the grandfather on the paternal side and not on the mother''s side through whom the inheritance is to be reckoned. But even if we confine "juddi" and "pita.moho" to "grandfather" this will not satisfy the appellants; they want to limit the expression "braderan juddi-i-Raja" to the meaning "brethren of the Raja descended from the Raja''s grandfather", because that is the only way to exclude Banamali as ho is descended from the late Raja''s great-great-grandfather, and not from his grandfather.

But this is note in accordance with any known scheme of inheritance in the Hindu law; this alone to my mind knocks the bottom out of Mr. Hasan Imam''s interpretation, it is not in accordance with the plaintiff''s expert evidence which to my mind is much more satisfactory than that of defendants; the latter are in obvious difficulties on their limited interpretation and lastly it is not in accord with the Pachchis Sawal itself, and fourthly the translation relied on by the respondent is the one adopted in the case of Nittanund Mudiraj v. Srikurum Juggernath Bewartah Pat-naick [1865] 3 W.R. 116 "brethren of the Raja''s grandfather not brethren of the Raja descended from his grandfather.

As regards the oral evidence relating to custom it can hardly be expected to-be very valuable in a case of this partisan character; but that coming from the plaintiffs'' side seems to be as good as can be expected and is certainly superior to that of the defendants''. Jagabandhu Das (P.W. 1) has admittedly been at one time in the service of the Dompara family as a clerk and he gives a definite instance where a female was excluded from the succession, namely, on the death of Purusottam Mansingh without issue, who was the immediate predecessor of Kishore Mansingh on the gaddi. According to this witness the mother of Purusottam (who was an adopted son) survived him but did not succeed. Kishore succeeded and next came his son Raghunath Mansingh after a contest in the Courts, with Chintamoni, his first cousin and the father of the present plaintiff. The judgment in that suit has been filed by the plaintiffs and it established that in this estate the succession devolves on the seniormost of the nearest agnates which if we leave out of the question of female inheritance is common ground in the present suit, none of the defendants specifically deny that Purusottam''s adoptive mother was alive when Purusottam died. Plaintiffs have also examined Gadadhar Singh Samanta who gives a specific and un-rebutted instance of exclusion of a female in the Khandpara Killajat estate which is one of the estates covered by the "Pachchis Sawal" whereas the defendants have called the adoptive mother and Brajendra''s widow to depose against any such custom, Whatever be the truth about Purusottam''s widow, and it seems to ma that on the state of the oral evidence this must be found in plaintiff''s favour, the plaintiffs'' witnesses were in this difficulty that they were trying to prove a negative and their evidence could easily have been refuted by a single instance of succession of females in any of the numerous Garhjat or Kilajat estates of Orissa, but none such is forthcoming. An instance was given for the defence by the adopting mother of female succession in the Bastore estate, but that is from the Chattisgarh State of the Central Provinces, a State outside the scope of the Pachchis Sawal.

Taking all the evidence produced on this point into consideration and considering it along with the undoubtedly feudal nature of the tenure, I am satisfied that the plaintiffs have established a custom of female exclusion, certainly female exclusion as against "braderan juddi" to which class of male relative of Bibhudendra the plaintiff undoubtedly belongs.

Having found that there was custom of female exclusion in the estate the learned Subordinate Judge held that the adoption was invalid in law, as on the death of Bibhudendra, the widow, his mother, having no right the succeed, the estate vested in Banamali and the adoption could not divest him. He followed the decision of their Lordships of the Privy Council in the case of Bhuban Moyee v. Ram Kishore [1868] 10 M.I.A. 279 and held that the real limitation on a mother''s right to adopt was the be sought for in the question of vesting.

The learned Counsel for the appellant contended that the Subordinate Judge had wrongly taken vesting as the sole criterion of the validity of the adoption and has overlooked the question of ceremonial competence. His argument on this part of the case was that as Bibhudendra had died unmarried and was a ward of the Court he had not attained full capacity the continue the line either by the birth of a natural born son or by adoption, and that hence the adoption as made after his death should be treated having been validly made. He relies on the decision of the Privy Council in the case of Madana Mohana Deo v. Purushottama Deo AIR 1918 P.C.74, where their Lordships indicate that the attainment of majority by a son divests the mother of the power to adopt; hence he argues that the converse principle follows that a mother can always adopt validly if her son dies unmarried and without an heir.

This contention must fail on the facts of the present case. In the case of Annamma v. Madhu Bali Reddi [1875] 8 M.H.C.R. 108, one Chinna had died unmarried as Bibhudendra did here; but it was held there that the adoption the his father by his stepmother could not divest the estate from the next heir. The relevant portion of the High Court''s judgment runs as follows:

The principle of the decision of the Privy Counoil reported in Mt. Bhoobun Moyee Debia v. Ram Kishore [1868] 10 M.I.A. 279 appears the govern the case. Chinna inherited his father''s property; he had full power of disposition over it; he might have alienated it; he might have adopted a son to succeed to it, if he had no male issue of his body; he could have defeated every intention which his father entertained with respect to the property.

Of like effect is the decision of the Bombay High Court in Bhimbai v. Tayappa [1913] 37 Bom. 598. The fact that Bibhudendra was under the Court of Wards and therefore subject to certain disabilities in that he could not make an adoption without the consent of the Local Government and could not create without the sanction of the Court any charge upon or interest in his property or any part thereof, does not in my opinion make any difference; because he was fully competent to give a nephew start or order of succession the his line as against any one ranking after him in the order of succession or survivorship that existed during his lifetime. The Majority Act which fixes the age of majority for a ward of the Court age 21 expressly leaves the capacity of such a ward to adopt unaffected.

Looking at the matter generally there is no doubt that a widow duly empowered as here can adopt on the death of her natural son or adopted son; but there are limitations on this power and the position emerging from all the cases cited by Mr. Sen for the respondents, Kally Prosonno v. Gocool Chunder [1877] 2 Cal. 295, Bhubaneshwari v, Nil Gomul [1885] 12 Cal. 18, Mondakini Dasi v. Adinath Dey [1891] 18 Cal. 69, Surendra Nandan v. Sailaja Kanta [1891] 18 Cal. 385 and Faizuddin v. Tincowri Saha [1895] 22 Cal. 565, has been summed up as follows by Mayne, in Hindu law, para. 191 (9th Bdn.):

First, where an adoption is made to the last male holder, the adopted son will divest the estate of any person whose title would have been inferior to his, if he had been adopted prior to the death; secondly, where the adoption is not made to the last male holder, but is made by the widow of any previous holder, it will, if in other respects valid, divest her estate; thirdly, in no other circumstances will an adoption made to one person divest the estate of anyone who has taken that estate as heir of another person. All these rules seem to be consistent with natural justice.

Ranade, J., sums up the position very similarly in Payapa v. Appanna [1898] 23 Bom. 327:

There can be no doubt that as a general rule of strict Hindu law as settled by judicial decisions it is only the widow of the last full owner who has the right to take a son in adoption to such owner, and that a person in whom the estate does not vest cannot make a valid adoption so as to divest (without their consent) third parties in whom the estate has vested, of their proprietary rights. This position was first laid down in Mt. Bhoobun Mayee Debia v. Ranikishore [1868] 10 M.I.A. 379 and has been repeatedly affirmed by their Lordships in PadMa Kumari Debi v. The Court of Wards [1881] 8 Cal. 302 and again in Thayatmnal v. Venhatarama [1887] 10 Mad.205 and Tarachurn v. Suresh Chundar [1889] 17 Cal. 122, Effect was given to this view by the Madras High Court in Annammah v. Madhu Bali Reddy [1875] 8 M.H.C.R. 108 by the Calcutta High Court in Taraahurn v. Suresh Chunder [1889] 17 Cal. 122, and by this Court in Keshav v. Govind [1884] 9 Bom. 94, Chundra v. Gojarbai [1890] 14 Bom. 463, In most of those oases the estate had vested in the daughter-in-law by reason of her husband having survived his father Mt. Bhooban Moyee Debia v. Ram Kishore [1868] 10 M.I.A. 279, Thayammal v. Venkarama [1887] 10 Mad. 205, Tarachurn v. Suresh Chander [1889] 17 Cal. 122, Krishnarav v. Shanharrav [1892] 17 Bom. 164 and Keshav v. Govind [1884] 9 Bom. 94 and it was held that the mother-in-law could not by exercising her power of adoption defeat her daughter-in-law rights. The same principle governs oases when the son dies before his father and it is the daughter-in-law who seeks by adoption to divest the mother-in-law of her rights: Sir Dharnidhar v. Chinto [1895] 20 Bom. 250. The same rule applies to the casa of collateral relations: Rupchand v. Rahhmabai [1871] 8 B.H.C.R. 144, Annamma v. Madhu. Bali Reddy [1875] 8 M.H.C.R. 108 and Chandra v. Gojarnbai [1890] 14 Bom. 463

This is really the principle for which Mr. Sen contended in the course of his exhaustive argument on behalf of the respondents, viz. that the adoption must be to the last male owner. In other words we have to see whose estate the widow is affected by the adoption. We have found that there is a custom of female exclusion and that the estate must accordingly have passed to Banamali on Bibhudandra''s death as admittedly a Hindu estate cannot remain in abeyance. Hence on the vesting test also the appellants must fail; it is not a case of a widow divesting herself of her own estate as in Vellanki v, Venkata Rama [1876] 1 Mad. 174, Venkappa Bapper v. Jivaji Krishna [1900] 25 Bom. 303 and Tripurabba v. Venkataratnam AIR 1923 Mad. 507 in all of which the adoption was held to be valid It is urged, however, on the authority of Partab Singh v. Agar Singh AIR 1918 p.c. 192 that the right of a widow to adopt is not dependent on her inheriting as a Hindu female owner her husband''s estate; "a widow," say their Lordships of the Privy Council,

can exercise the power so long as it is not extinguished or exhausted.

The qualifying words are important. The case their Lordships were considering was one of an estate which reverted on failure of male heirs to the grantor, and they held that the widow''s power to adopt was irrespective of any such reversion; it was not a dispute as here between an adopted son and collaterals; but the crucial point which distinguishes this case from the present is that the adoption in Partab Singh v. Agar Singh AIR 1918 p.c. 192 was made to the last full owner.

It was next contended that what I may call the last male owner rule doss not apply to joint impartible estates and reliance was placed on two cases of the Madras High Court: Venkataramier v. Gopalan [1918] I.C. 48 and Sri Sri Jagannadha Gajapati Anang Bhim Deo v. Kunja Bihari Deo [1918] 49 I.C. 929. As to whether the plaintiff has set up a case of jointness or separation, the plaint is somewhat vague; it may be that this vagueness is deliberate on the part of the plaintiff as if it is a case of separation the plaintiff''s case will have to rest entirely on the custom of female exclusion, whereas if it is a joint impartible estate, plaintiff has the second line of defence in that under the Mitakshara law females will not succeed and accordingly it cannot be a case of the widow when she adopted divesting only herself, but this advantage that the power of adoption has to be considered apart from the question of female exclusion and with reference to the joint family as a whole. Certainly paras. 7 to 11 of the plaint taken with the statement of P.W. 1. that "Madan and Kishori were separate" point rather to a case of separation, but apparently what the witness meant is that these two were separate from Purusottam when he held the Raj vide his statement in cross-examination.

I have heard that the mother of Purusottam severed her son from any ancestors.

His answers were evidently directed to the instance of female exclusion alleged to have arisen on Purusottam''s death; anyhow there was no issue on the question and it; may also be that defendants ware content to leave that portion of plaintiff''s case in the air as if it is a case of jointness they would have found it necessary to prove a custom of female inheritance, in order to bring the case into the class of adoption cases where the widow divests only herself and can thus make a valid adoption. If Brajendra and Bibhudeadra after him held the estate as their separate properties then on the finding as to female exclusion the plaintiff must for the reasons given succeed. If the family is joint, I fail to sea how the defendants are any batter off. The case of Gajapati Anang Bhim Deo v. Kunja Bihari Deo [1918] 49 I.C. 929 is a continuation of the litigation dealt with in Sri Vired Partab Raghu nada Deo v. Sri Broza Kishore Patta Deo [1876] 1 Mad. 69 and in Madan Mohan Ranga-Bheema Deo v. Purushottama Raiga-Bheema Deo AIR 1918 P.C. 74 plaintiff was the adopted son of Brijkishore who was himself the adopted son of Adhikonda, on Brajakishore''s death, his adoptive father''s brother''s son Baishnab who was the senior collateral succeeded, he was succeeded is turn by his son Purusottam who died without issue and then the latter''s younger brother Kunja Bihari succeeded. Plaintiff failed as the authority to adopt was not duly established, but the Madras High Court held that having regard to the view expressed by their Lordships of the Privy Council in the preceding case Madan Mohan Ranga Bheema Deo v. Purushottama Ranga Bheema Deo AIR 1918 P.C. 74 that Raghunathan''s succession was of a character only provisional and subject to defeasance by the emergence of a male heir to Adhikonda, the new heir who had now appeared by the adoption of Brajakishore''s widow would have been entitled to take the estate and to defeat the estate of Baishnab''s line had the adoption been valid par se. In this casa Seshagiri Ayar, J., reiterates the view which he had already expressed in Sri Madan Mohan Anaig Bheem Deo v. Sri Purushottam Anang Deo [1911] 38 Mad. 1105 that the theory that the adoption must be made to the last male owner does not apply to a joint impartible estate and it is on that basis he arrived independently at the above conclusion.

It was necessary in the case of Sri Madan Mohan Anang Bheem Deo v. Sri Purushottam Anang Deo [1911] 38 Mad. 1105 to refute the view that as the adoption was not made to Baishnab the last male owner it was invalid and there was a similar contention to be met in Gajapati Anang Bhim Deo v. Kunja Bihari Deo [1918] 49 I.C. 929 that as Purusottam was the last male owner the adoption should have been made to him and Seshagiri Ayyar.J., in both cases did so by applying the above principle. In Venkataramier v. Gopalan [1918] I.C. 28 it was really not necessary to apply the principle at all as the first adopted boy had died when aged only four and thus had not attained full capacity to continue the line, and that in itself was sufficient to validate the second adoption. However, taking these three decisions together Sri Madan Mohan Anang Bheem Deo v. Sri Purushottam Anang Deo [1911] 38 Mad. 1105, Gajapati Anang Bhim Deo v. Kunja Bihari Deo [1918] 49 I.C. 929 and Venkataramier v. Gopalan [1918] I.C. 28 what they really lay down is that in a joint impartible estate the rights of survivorship are subject to defeasance by the emergence of a son by adoption to the deceased; but this is no novel principle in the law of adoption.

It was the view taken by the Privy Council in the case of Sri Raghunathan v. Sri Broza Kishore [1876] 1 Mad. 69 and followed by the Bambay High Court in the case of Bachoo Hurkison Das v. Mankorebai [1904] 29 Bom. 51 and this decision was affirmed by their Lordships of the Privy Council in the case of Bachoo Hurkison Das v. Mankorebai [1907] 31 Bom. 373: see also the case of Surendra Nandan v. Sailaja Kanta Das [1891] 18 Cal. 385. The principle in either form is, however, of no avail to the defendants because where they go wrong is in confusing the last male owner with the last full owner. In the case of Sri Gajapati Ananq Bhim Deo v. Kunja Bihari Deo [1918] 49 I.C. 929. neither Baishnab nor Purusottam nor Kunja Bihari were full owners in the sense that they took an indefeasible estate; their estate was liable to defeasance the minute Ratnamala adopted to her deceased husband Brijakishore who left no heir, ha being last full owner, In Venkataramier v. Gopalan [1918] I.C. 48 the undivided brother took a similar defeasible estate; the first adopted son died when only four, he had not attained full capacity to continue the line; hence the widow could make a second adoption and prevent the undivided brother taking the whole property. In other words in a joint impartible estate, it is not necessary in order to ensure the validity of an adoption that it must be made to the last male owner; it must be made to the last full owner. We have to test its validity by reference to the person to whom the adoption is made, not to the person in whom the impartible estate is for the time being vested; the widow''s power does not depend on the position of the estate at the time of the adoption.

Here the appellants are claiming by virtue of the adoption not the estate of the adoptive father Brajendra but the estate of his son Bibhudendra who was the last full owner. Had Brajendra died leaving no son or an adopted son who died before attaining full legal capacity as in Venkataramier v. Gopalan [1918] I.C. 48 the collaterals would have taken the estate subject to defeasance on a subsequent adoption by his widow to the defendant. But Brajendra left a son, who died as I hold, after attaining full legal capacity to continue the line. Is Brajendra''s widow in exactly the same position in both cases? I think the answer must clearly be in the negative. The widow''s power had gone when Brajendra died after attaining full legal capacity to continue the line. There is no authority for the contention of the appellants which really amounts to this that a widow with no right of succession of her own can adopt to her deceased husband so as to keep the succession in the family, when his natural born son though competent to do so has failed to do so though leaving no son of his OWD either natural born or adopted. The rulings of Seshagiri Ayyar,J., in the cases in question cannot be interpreted as conferring any such unlimited powers of adoptionon a widow.

In Sri Gajapati Anang Bhim Deo v. Kunja Bihari Deo [1918] 49 I.C. 929 that learned Judge accepts the limitation on the widow''s power to adopt as laid down by their Lordships of the Judicial Committee in Sri Madan Mohan Anang Bheem Deo v. Sri Purushottam Anang Deo [1911] 38 Mad. 1105, We have seen that a similar limitation exists here. Thus is any aspect of he case the adoption must be held invalid.

As regards the question of estoppel, I fail to see how any such plea can be advanced against the respondents. The evidence established that Banamali did no more than witness the deeds by which the adoption of defendant 1 was confirmed by the different Ranis. The evidence from the defendant''s side which tries to make out that he was a party in bringing about the adoption cannot be accepted. It is not established that he held out any representation in the matter. He was nothing more than a mere witness at the best. Obviously in such circumstances it is far fetched to advance an argument based on estoppel, and I can see no force in it. I would accordingly dismiss the appeal with costs.