Sri Chandra Choor Deo and Others vs Bibhuti Bhushan Deva

Chatterjee, J.—The dispute in this case relates to succession to shebaiti right in certain properties which are described in the schedules attached to the plaint. The last shebait to whom the plaintiff, who is a minor, claims to have succeeded was Rai Bahadur Ram Sumran Prasad, who died on 8th December 1924 leaving his widow, Mt. Sabitri Devi in whose favour he executed a will giving her, besides all his properties absolutely, authority to adopt. She obtained probate of the will on 23rd December 1925, and thereafter on 13th May 1928 she in accordance with the authority given by her husband adopted the plaintiff. The relationship between the parties will appear from the following genealogy:

BABU HIRDEY NARAIN ___________________________________|___________________________________ | | | | Madan Brij Mohan Lal died Krishna Mohan Lal Banarsi Prasad (died Mohan Lal without any issue (died in 1308 Fasli) in 1304 leaving behind | leaving him surviv- | him his widow Mt. | ing his widow Mt. . Jagatdhar Narain Jayanti Kumri and a |________ Sham Kumri. (died in 1920 mar- daughter and a son. | ried Srimati Debi) The daughter and son _____|_________ | predeceased Mt. Ja- | | | yanti. Mussamat Jayanti | | | died in 1916.) Bramhadeva Prasad R.B. Ram Sumran ______|___________________________ died in 1908 with- Prasad died on 8-12-24 | | | out any issue.) leaving behind him a | | | widow Mt. Srimati | | | Sabitri Debi Chandra Chur Chandra Mauli Chandra Bhusan | Deva (deft. 1) Deva (deft. 2) Deva (deft. 3) | Adopted son-adopted by the widow Sabitri Devi on 13-5-28 Bibhuti Bhusan Deva (plaintiff) 2. The deities Sri Sri Radha Krishna to whom the disputed properties belong were admittedly installed by Mt. Jayanti Kumri, widow of Rai Bahadur Ram Sumran''s paternal uncle Banarsi Prasad, in a temple built by her. According to the pleadings of the parties, it is common ground that the properties described in Schs. 1 and 2 of the plaint which were held by Mt. Jayanti Kumari as a widow''s estate, being inherited from her husband, were dedicated by her to the said deities by two deeds of endowment dated 6th December 1906 and 12th September 1912 respectively with the consent of her husband''s then reversionary heirs, namely, his nephews, who in fact joined with her in executing the deeds. Under the terms of these deeds of endowment, Mt. Jayanti Kumri herself was the first shebait, and on her death in 1916 Rai Bahadur Ram Sumran and the defendants'' father Jagatdhar Narain became joint shebaits. On Jagatdhar''s death in 1920, the defendants became shebaits in his place, and since then they are in possession of the disputed properties as shebaits of the deities concerned.

Ram Sumran was admittedly a co-shebait till his death in 1924. Upon his death disputes arose between his widow Sabitri Devi, on the one hand, and the defendants, on the other. Sabitri made an attempt to get her name recorded in the land registration records as a '' co-shebait in the place of her deceased husband, but her attempt failed. This was in 1925. The plaintiff after his adoption applied under the guardianship of his adoptive mother for registration of his name as a co-shebait in the place of Rai Bahadur Ram Sumran. His application waS opposed by the defendants, who challenged both the factum and validity of his adoption. His application was rejected by the Land Registration Deputy Collector on 30th October 1928, and on appeal his order was confirmed by the Collector on 20th November 1928. The plaintiff then brought the present suit on 23rd June 1934 for declaration of his right as a co-shebait with the defendants in respect of the disputed properties described in Schs. 1, 2, 3 and 4 of the plaint and for recovery of joint possession of those properties. The properties described in Sch. 3 are the temple and ornaments of the idols and those described in Sch. 4 are immovable properties which were subsequently acquired.

The suit was contested by the defendants on the following among other grounds: (1) that the plaintiff was never adopted by Rai Bahadur Ram Sumran''s widow; (2) that the widow had no power to adopt under the law by which the family is governed, namely, the Mithila School of Hindu law, and therefore the adoption, even if it did take place, was invalid; (3) that there is a custom in the family that a widow cannot adopt; (4) that under the terms of the deeds of endowment, the plaintiff is not entitled to succeed as she-bait as he was not born at the time of Mt. Jayanti Kumari''s death and (5) that on the death of Rai Bahadur Ram Sumran his she-baitship was inherited by the defendants as the next heirs, and by any subsequent adoption by his widow, even if valid, the shebaitship which once vested in them could not be divested.

The learned Subordinate Judge has decreed the suit, holding: (1) that the plaintiff was duly adopted by Rai Bahadur Ram Sumran''s widow; (2) that the family is governed not by the Mithila School but by the Benares School of Hindu law; (3) that there is no custom in the family prohibiting adoption by a widow; (4) that the adoption is valid; (5) that upon a proper construction of the deeds of endowment Rai Bahadur Ram Sumran Prasad had only a life interest in the shebaitship which on his death reverted to the heirs of the founder of the endowment and (6) that the plaintiff as adopted son of Rai Bahadur Ram Sumran became an heir of the founder and as such he along with the defendants succeeded to the shebaitship which was previously held by Ram Sumran. The defendants have preferred this appeal. All the above findings of the Subordinate Judge except the fifth have been challenge ed in this appeal on behalf of the appellants. The respondent, on the other hand, while supporting the decree in his favour has taken exception to the fifth finding.

The first question for consideration is whether the plaintiff was duly adopted. As regards the factum of adoption, though it was challenged in the Court below, the learned advocate for the appellants very wisely, in view of the overwhelming and unimpeachable evidence produced on behalf of the plaintiff, does not dispute the lower Court''s finding. He also frankly concedes that there was giving and taking at the time of adoption. The point raised by him, however, is that adoption being a purely religious act, as held by their Lordships of the Privy Council in AIR 1933 155 (Privy Council) , recitation of the prescribed Vedic mantras is necessary at the time of. giving and taking, but there is no evidence that this was done in the present case. The formalities and ceremonies necessary for an adoption have been differently prescribed by the ancient sages Saunaka, Vasishtha and Baudhayana. These are mentioned in Dattaka Mimamsa, a work of great authority on adoption. Section 5, Arts. 2 to 15 relate to the ceremonies prescribed by Saunaka, while Arts. 31 and 42 refer to those prescribed by Vasishtha and Baudhayana respectively : see Setlur''s Collection of Hindu Law Books, Part 1, pp.392, 393, 395 and 397. Mr. L.K. Jha for the appellants contends that both Saunaka and Baudhayana prescribe that there should be recitation of certain prayers at the time of giving and taking : vide Articles 13 and 42. Vasishtha also prescribes recitation of certain prayers but of other denomination: vide Article 81. Dattaka Mimamsa, Section 5, Article 50 (S''etlur, Part l, page 399) lays down that

filial relation to these five sons proceeds from adoption only with observance of the form of either Vasishtha or Saunaka; not otherwise.

Whatever may be the mantras that are required to be recited at the time of giving and taking, the evidence in this case shows that the ceremony of giving and taking was performed in accordance with shastrie rites. P. W. 26 and P. W. 27, who officiated as Karamakandi and Acharya respectively at the adoption, depose that the boy was adopted according to shastrie rites. P. W. 26 was cross-examined as to the various rites that are to -be performed at the time of adoption, and he enumerated all those rites of which item 18 is "The givingrand taking of the boy according to shastrie rites:" vide his evidence at p. 89. He was not cross-examined any further. Neither he nor P. W. 27 was asked any question in cross-examination as to whether any mantras were recited at the time of giving and taking. In the absence of such cross-examination, the evidence of the witnesses that the adoption was made in accordance with shastrie rites must be accepted. Mr. L. K. Jha draws our attention to the following passage in the cross-examination of p. w. 19 the natural father of the plaintiff:

Worship of Gods and Sonkalp was performed before the actual giving and taking in adoption. I did not perform any other rite.

From this it is contended that he did not re-cite any mantras at the time of giving and taking. But it is to be remembered that he is a layman who could not be expected to re-member the Sanskrit mantras which were re. cited, particularly when he was giving evidence more than eight years after the adoption. Or it may be that recitation of the mantras which as a matter of fact takes place in all religious ceremonies was not considered by the witness to be any particular "rite." On behalf of the defendants adoption was altogether denied, and, therefore, naturally there is no evidence on their side to contradict the evidence of P. w. 26 and P. w. 27. Upon the evidence as it stands, it is difficult to hold that the cere, mony of giving and taking was not performed in accordance with shastrie rites. Mr. P. R. Das on behalf of the respondent contends that the recitation of Vedic mantras at the time of adoption is unnecessary and he attempted to support his contention by reference to certain passages from Mitakshara and Dattaka Mimamsa. But in the view I take of the evidence, it is unnecsssary to pronounce any opinion on the point. I am satisfied upon the evidence that the adoption took place in accordance with shastrierites.

The next question is whether the family is governed by the Benares School, as contended by the plaintiff, or by the Mithila School of Hindu Law, as contended by the defendants. Both these schools are branches of the Mitakshara law. It is now well settled according to judicial decisions that under the Benares School a widow can adopt with the authority of her husband; whereas under the Mithila School she can under no circumstances adopt. The parties are residents of village Ulao which is admittedly in Mithila. Mithila is northern Bihar bounded by three rivers on three sides, namely, the Ganges on the south, Koshi on the east and Gandak on the west. Therefore, the presumption of law is that the family is governed by the Mithila School. The parties, however, belong to a family of the Agarwala caste. The Subordinate Judge has found, and it is now conceded before us, that the original home of their family was at Agroha and the family migrated to Mithila. The present identity of Agroha is not known, but the evidence suggests that it is somewhere in the province of the Punjab. At any rate it is admittedly outside Mithila. In Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59, their Lordships of the Privy Council accepted, as correctly stating the law, the following passage from Mayne''s Hindu Law, 8th Edn., para. 48:

Prima facie any Hindu residing in a particular province of India is held to be subject to the particular doctrines of Hindu law recognised in that province. . . . But this law is not merely a local law. It becomes the personal law, and part of the status of every family which is governed by it; consequently, where any suoh family migrates to another province governed by another law, it carries its own law with it.

Their Lordships further said:

Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only is domicile of importance. But if more is known, then in accordance with that knowledge his personal law must be determined; unless it can be shown that he has renounced his original law in favour of the law of the place to which he migrated.

It therefore follows that though the parties are residents in Mithila, they must be governed by the law of the place from which their family migrated, unless it is shown that they renounced their original law and adopted the law prevailing in Mithila. Obviously the onus to prove this would lie on the defendants. Mr. L. K. Jha contends that the time of migration is very material and if the mig- ration took place before the foundation of Mithila School, the family must be presumed to be governed by that School. In support of this contention reliance is placed on Pitambar Chandra v. Nishi Kaiita A. I. R. 1920 Cal. 335 where Mookerjee and Pan. ton JJ. observed:

There is this further difficulty that even if tangible evidence of migration had been available, the time of migration would be. a vital point for consideration Consequently, the defendant would have to establish not merely that the family migrated from Bihar but that the migration took place after the foundation of the Bengal School of Hindu law by the author of the Dayabhaga.

The actual decision, however, was based on these findings:

It is plain that the defendant has failed to discharge the burden which rested on him, namely, to prove that the family came from a province where Mitakshara law prevailed, into Bengal, and that it has adhered to the Mitakshara law in matters of succession. But we may add that even if the family be assumed to have migrated into Bengal and to have retained some of its religious rites and ceremonies, the evidence points to the conclusion that the family has acquired a course of devolution of property in accordance with the common course of descent of property in the district under the Bengal School of Hindu law.

So the observation that "the time of migration would be a vital point for consideration" cannot be regarded as anything but an obiter dictum. The correctness of this obiter was doubted in a subsequent decision of the same High Court in Ramesh Chandra Sinha Vs. Md. Elahi Buksh, where Walmsley and Suhrawardy JJ. refused to accept the contention of the appellant based on the aforesaid obiter, that

for a family residing in Bengal to show that it is governed by the Mitakshara School of law, it must prove immigration and immigration since the establishment of the Dayabhaga system." The said obiter does not also appear to be consistent with the principle enunciated by the Privy Council in Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59 cited above. The time of migration might perhaps be material in order to ascertain what the law of the family was at the time when it left Agroha, because, as laid down by the Privy Council in the above cited case, Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59, "The law must be the family law as it was when they left." But the evidence as to the time when the family migrated to Mithila is most vague and unsatisfactory. It is entirely hearsay. The plaintiff''s witnesses, on the one hand, say that the Agarwalas came at first to Balia near Begusarai-they cannot say when-thence to Begusarai and thence to Ulao where they have been living for the last 100 or 125 years. The defendants'' witnesses," on the other hand, say that the Agarwalas migrated from Agroha 2000 or 2500 years ago. Prom Rev. M. A Sherring''s Hindu Tribes and Castes as represented in Benares, Vol. I, p. 286, it appears that according to the account given by Sir Henry Elliot in his supplementary glossary, the Agarwalas migrated from Agroha to all parts of India after the capture of that place by Shahab-ud-din Ghori. History shows that Shahab-ud-din Ghori invaded India towards the close of the twelfth century. Nothing, therefore, can be definitely said as to when the migration from Agroha took place except that it was near about the close of the twelfth century.

It is well known that there are two main schools of Hindu law, namely, the Dayabhaga and the Mitakshara. The Dayabhaga is the law which prevails only in Bengal and Mitakshara in remaining parts of India. With the rise of different commentators in different provinces the Mitakshara School was sub-divided into four Schools, namely, the Benares, the Mithila, the Maharashtra and the Dravida Schools. The Maharashtra prevails in the Bombay Presidency and the Dravida in the Madras Presidency. The Mithila School prevails only in Mithila. There is, therefore, no doubt that the parties must be deemed to be governed by the Benares School unless it is shown that their family adopted, the Mithila law. Then again adoption by a widow is per. missible under all the other schools of Hindu law except the Mithila School. It is, therefore, incumbent upon the defendants to show that their family adopted the Mithila law.

Mr. Jha contends that the family when it migrated from Agroha carried the Mitakshara law as it then stood. Under the Mitakshara, as supplemented by the Dattaka Mimamsa, he says, a widow cannot adopt, and this must have been the law of the family when it migrated. The Mitakshara is silent as to the power of a widow to adopt. There is, however, the text of Vasishtha which says "Nor let a woman give or accept a son unless with the assent of her lord." This text is accepted as authoritative by all the schools and it is only upon different interpretations of this text that the different schools have propounded different views. On an interpretation of this text Dattaka Mimamsa, Section 1, Article 16 (Mr. Sutherland''s translation) says : "From this, the incompetency of the widow is deduced since the assent of her husband is impossible." But according to Biramitrodaya, a contemporaneous work of equally great authority, a widow can adopt with the consent of her husband''s kinsmen. The Courts in India as well as the Privy Council, however, have held that according to the Benares School a widow can adopt with her husband''s authority, (see the Privy Council decisions in Haimun Chul Singh v. Koomar Gunshiam Sing (1834) 2 Kna 208, Choudry Pudum Singh v. Koer Oodey Singh 12 M. I. A. 350, Collector of Madura v. Moottoo Ramalinga Sathu-pathy 12 M. I. A. 397, Bishwa Nath Singh v. Jugal Kishore A. I. R. 1923 P. C. 90 (and it is not disputed that this is the present law). Mr. Jha, however, contends that the law which prevailed at the time of migration ought not to be determined with reference to the subsequent judicial decisions. Similar contention was raised in the above cited case, Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59, but was negatived by their Lordships. Their Lordships said:

A judgment declaratory of law as having always been would bind; but it would be a different thing if subsequent customs became incorporated in the law.

The judicial decisions in which it has been held that in the Benares School a widow can adopt with her husband''s authority have merely interpreted the text and declared the law as it always stood. It is now too late to contend on the basis of Dattaka Mimamsa that under the Benares School a widow has no power to adopt. On the question whether the parties are governed by the Mithila School, the defendants have examined a large number of witnesses. These witnesses make general statements regarding the school of law and also speak about the different rites and ceremonies connected with marriage and death which are observed in the two different schools. As regards the general statements, they are based on hearsay and are not supported by reasons. The Subordinate Judge has discussed their evidence in detail and come to the conclusion that the evidence is quite unsatisfactory. There is, however, one witness, namely, p. w. 58, who is a retired Deputy Magistrate and appears to be an independent and reliable witness, but there is no reference to his evidence in the judgment of the Subordinate Judge. P. W. 58 says "I think the family of Jagatdhar Babu is governed by the Mithila School of Hindu Law." But in cross-examination he says:

I cannot say what is Mithila School... I have heard that Jagatdhar Babu''s family is governed by the Mithila School of Hindu law.

His evidence is, therefore, of no value. It is to be remembered that the law of the Mithila School is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila School has departed from the law of the Mitakshara. The ordinary law of inheritance is the same in both the schools ''except with regard to particular kinds of stridhan. The difference between the two schools is so small that it is difficult for laymen to distinguish one school from the other. That being so, general statements made by witnesses, unless they have special means of knowledge, can hardly be of any value. At any rate nothing has been shown to us which will justify us in taking a different view from the Subordinate Judge.

As regards the rites and ceremonies relating to marriage, the Subordinate Judge after considering the evidence has come to the finding thai; those observed by the family of the parties are consistent with the practice under the Benares School rather than under the Mithila School. As regards the funeral rites and ceremonies, it is necessary only to mention two important particulars. First, according to the Benares School, the person who performs the cremation ceremonies shaves his head at the time of cremation; whereas under the Mithila School, there is no such shaving at that time. Secondly, according to the Benares School 4, 5 or 6 pindas are offered at the time of cremation; whereas according to the Mithila School only one pinda is offered. With regard to , these particulars, the Subordinate Judge seems to have preferred the defendants'' evidence which shows that the family of the parties observes the rites that prevail in the Mithila School. He is, however, of opinion that the evidence regarding the rites and ceremonies relating both to marriage and death is inconclusive. Mr. L. K. Jha accepts his finding so far as the rites and ceremonies connected with marriage are concerned. But he contends that the shaving of head and offering of pindas at the time of cremation are shastric rites and should be regarded as conclusive. As regards pinda, it is offered according to both the schools and the difference is only with regard to the number. I fail to see how the difference in the number of the pindas can be regarded as a determining factor. Nor do I feel convinced that the shaving of head at the time of cremation is a shastric rite. The shaving of head on loth or nth day, as the case may be, which just precedes the actual sradh ceremony is no doubt a shastric rite. The shaving of head at the time of cremation is to be done only by the person who performs the funeral ceremony, whereas the shaving that takes place just before the sradh is to be done by all the persons who offer oblations to the deceased. To put the matter more clearly, if the deceased leaves more than one son, the son who puts fire to the funeral pyre, shaves his head at the time of cremation. But at the time of sradh all the sons have to shave their heads. Even assuming that the shaving of head at the time of cremation is a sbastric rite all that can be said is that the family follows this particular rite of the Mithila School. This by itself does not prove that the family adopted the Mithila law. The family has been residing in Mithila for a very long time, and it is no wonder that it adopted some of the rites and customs of the Mithila people.

Mr. Jha contends that if the family adopted some of the customs and usages of the Mithila School, there must be a presumption that it renounced its original law and adopted the Mithila law. In support of this contention reliance is placed on the decision in Rajenunder Narain Chowdry v. Goculchand 6 S.D.A.O.S. 42.9 In that case the question was whether a family which had migrated from Mithila to Bengal would be governed by the Mithila or Bengal law. Upon the evidence it was found that:

The purohit or family priest of each oi the parties, was a Brahmin of Bengal; that the ancestors of the parties, whose family had been resident in Bengal for several generations had inter-married with Bengali women; that the religious ceremonies connected with funeral or marriages had been sometimes according to the Mithila, and sometimes according to the Bengali Shastra.

It was held that the Bengal law must govern the case. It is to be noticed that inter-marriage with Bengali women was a very important factor in that case. The case, therefore, cannot be an authority for the broad proposition contended for by Mr. Jha. Nor does it receive any support from the decision of the Privy Council in Butcheputty Dutt v. Bajunder Narain Rae (1837) 2 M. I. A. 132 in which their Lordships, while referring with approval to the above case in Rajenunder Narain Chowdry v. Goculchand 6 S. D. A. O. S. 42,9 quote the following note of Mr. Colebrooke at the foot of page 44 of that report:

If the family had been shown to have continued in the observance of the natural law and usages, namely those of Mithila, the rule of inheritance as established in that province must have been followed.

and then observe as follows:

The present case, therefore, must be considered, rather as an exception to that which is laid down as the law in that case, because there they had abandoned those usages and taken to those of Bengal.

Mr. Jha lays some stress on the fact that Maithil Brahmins are priests of Rai Bahadur Ram Sumran''s family. Mt. Sabitri Devi, P. w. 6, was asked in cross-examination if Rameshwar Jha and Jogeshwar Jha were her kulapurohits (family priests). In answer she said "They are my nominal purohits." Though she adds the word ''nominal'', we may take it that the above mentioned two persons are her family priests. They are Maithil Brahmins. But the evidence of defendants'' own witness 34 shows that "At Ulao and Begusarai there is no other Brahmin except Maithil Brahmins who can get religious ceremonies performed." P. W. 36 who is an agnate of the parties says:

My family priest was Dukhia Mishra who is dead and new purohit is Bamesar Jha who is a Maithil Brahmin. Dukhia Mishra was a Gour Brahmin.

The evidence, therefore, shows that the Agarwala families at Ulao now engage Maithil Brahmins as their priests as non-Maithil Brahmin priests are not available. Mr. Jha suggests that when the Agarwalas migrated froto Agroha they must have brought their family priests. There is no justification for such assumption. There is no reason to suppose that priests also migrated with the Agarwalas. Even assuming that any priest did migrate, it might be that his family became extinct. However, the evidence makes it clear that there are no non-Maithil Brahmins available at Ulao, to act as priests. It is worthy of remark that the defendants have not examined their own priest Anant Missir.

The plaintiff also has examined a large number of witnesses to prove that the family is governed by the Benares School. The learned Subordinate Judge has discussed their evidence and observed that their evidence is also-open to criticism. Their evidence has been placed before us and I do not feel disposed to differ from the Subordinate Judge''s view. The position, therefore, is that the defendants having failed to adduce satisfactory evidence to prove that their family adopted the Mithila law, the presumption remains that they are governed by the Benares School. This presumption is strengthened by some documentary evidence to which I shall now refer. Rai Bahadur Ram Sumran and Jagatdhar Narain brought a Title Suit No. 277 of 1912 in the Court of the Subordinate Judge at Darbhanga against their paternal uncle Brij Mohan Lal''3 widow Mk Sham Kumri and others to set aside a compromise which had been entered into by Sham Kumri with the other defendants. Mt. Sham Kumri had obtained a mortgage decree for Rs. 1,41,959-1-6 in a suit originally instituted by her husband who subsequently died. In execution of that decree the mortgaged properties were sold and purchased by Sham Kumri. The judgment-debtors made an application under Order 21, Rule 90, Civil P. C, for setting aside the sale. In that proceeding Sham Kumri and the judgment-debtors filed a compromise petition which was accepted by the Court. As a result of this compromise, the auction sale was set aside and Mt. Sham Kumri after remitting Rs. 70,000 "received in cash the balance of the decretal amount in full satisfaction of the decree. It was to set aside this compromise that the said Title Suit No. 277 of 1912 was brought on the allegation that the compromise was not binding on the plaintiffs who were the next reversioners.

In the plaint (EX. 13) of that suit it was stated in para. 2 that the plaintiffs'' family was governed by the Benares School of Hindu law. Mt. Sham Kumri, on the other hand, in her written statement (Ex. D) asserted that the family was governed by the Mithila School of Hindu law. Issue 5 raised in the suit was "Is the plaintiffs'' family governed by the Benares or Mithila School of " Hindu law?" The trial Court upon a consideration of the evidence came to the finding that the family was governed by" the Benares School: vide judgment Ex. 24 (c), From the appellate judgment of the High Court Ex. 24 (d) it appears that the lower Court''s finding on the said issue was not challenged in appeal. The appeal was dismissed and a further appeal to the Privy Council was also dismissed. The judgment of the Privy Council Ex. 24 (e) contains the following passage:

of the points set up on behalf of the defendants was that the widow''s husband''s family was governed by the Mithila School of Hindu law, which gives larger powers to a Hindu woman when an estate is vested in her than she gets under the Mitakshara. This was negatived by both Courts and need not now be considered.

The learned Subordinate Judge'' has held, and Mr. P. R. Das for the respondent contends, that the statements in the plaint Ex. 13 and written statement Ex. D, taken along with the findings of the trial Court and the High Court, are relevant evidence which goes to support the plaintiff''s case. Mr. Das lays great stress on the statement in the plaint Ex. 13, being the statement of the defendants'' own father as also of Ram Sumran. To this Mr. Jha''s answer is that Ram Sumran and Jagatdhar were very much interested in making the statement, because if the family were governed by the Mithila School, Mt. Sham Kumri would be the absolute owner of the mortgage money regarding which the compromise had been effected. As a contrast to the statement in para. 2 of the plaint Ex. 13, Mr. Jha draws our attention to the statement in another plaint Ex. 13 (a) which was filed about a month later by Ram Sumran against some outsiders. In this plaint it was stated that the plaintiff''s family was governed by "the Mitakshara School of law." It is said that Ram Sumran, being conscious that he was governed by the Mithila School, which is a branch of the Mitakshara School, mentioned "the Mitakshara School of Law" in Ex. 13 (a), there being then no necessity to mention "the Benares School of Hindu Law;" whereas this latter expression was purposely used in the previous plaint Ex. 13 which had been filed about a month before. This distinction seems to be rather far-fetched. However the contention that the statement in Ex. 13 was made with a motive is not without force. Be that as it may, the Court framed an issue on the point and came to a finding. In the circumstances, the plaint, the written statement and the judgment taken together will be relevant evidence. Mr. Jha on the authority of the decision of the Privy Council in AIR 1937 69 (Privy Council) , contends that the finding in the judgment Ex. 24 (c) is not admissible evidence. In that case a previous decree of 1916 not inter partes was sought to be used as proof of the plaintiffs'' title. Their Lordships stated the general rule to be

that so far as regards the truth of the matter decided, a judgment is not admissible evidence against one who is a stranger to the suit.

Their Lordships, however, considered the circumstances of the case and held that the decree was hardly of any evidentiary value. But the following statement of their Lordships is important:

On the other hand apart from all discussion whether a judgment is or is not a ''transaction'' within the meaning of Section 13, Evidence Act, the judgment of 1916, together with the plaint which preceded it and the steps in execution which followed, are evidence of an assertion by the Raj of the right which it claims to have acquired in 1903 and are thus admissible evidence of the right. There are undoubtedly cases in which a judgment is evidence of weight even against third parties.

This ratter supports the contention in the present case that the plaint Ex. 13, the written statement Ex. D and judgment Ex. 24 (c), taken together, are admissible evidence of the right which the plaintiffs claim, namely, that the family is governed by the Benares School of Hindu law. It is argued that the question whether the family is governed by the Benares or Mithila School is not a question of any right. But certainly the rights of the parties depend upon whether the family is governed by one school or the other. Thus the plaint Ex. 13, written statement Ex. D and the judgment Ex. 24 (e), taken together, support the plaintiff''s case that the family is governed by the Benares School.

There is another matter on which a good deal of controversy was raised in the Court below as well as in this Court. Defendant 3 was married in Baisakh 1843 Fasli--the actual date of the month is not known. The plaintiff adduced evidence to show that the marriage could not be performed in Baisakh 1343 according to the Mithila almanac, because according to that almanac Baisakh 1343 was inauspicious for marriage, though it was not so according to the Benares almanac. The conclusion therefore sought to be drawn is that the family is governed by the Benares School. In the Mithila almanac Baisakh 1343 was shown as "ashudh" or inauspicious, because the planet Jupiter was in retrograde motion during that month. The defendants'' explanation, on the other hand, is two-fold: first, that Jupiter, though it was in retrograde motion, was in its own house -and this is not disputed; therefore, the month could not be regarded as inauspicious for marriage; secondly, that retrograde or accelerated motion of Jupiter is not taken into consideration where the marriage takes place outside Mithila-admittedly the defendant''s marriage took place in Etawah which is outside Mithila. As regards both these grounds, they are sought to be supported by the evidence of D. W. 12, who is said to be an expert in astrology, and who, as his evidence shows, passed the highest examination in astrology from the Government Sanskrit College at Benares. He says:

It was quite proper according to the Mithila School to have marriage performed in Baisakh last year, because the planet Jupiter, although it was having retrograde movement was in his own sign of Zodiac (Rasi). There can be marriage outside Mithila during the retrograde movement of the Jupiter even if both the bride and the bridegroom are persons governed by the Mithila School.

This last statement receives support from the evidence of P. W. 35, who is an expert witness in the matter on the plaintiff''s side. He studied Astrology and Karamkanda but he does not appear to have passed any examination. In his cross examination he says:

When a marriage is performed in the United Provinces of Agra and Oudh, the question of Brihaspati being ''nich'' or ''bakra'' is not considered. The question of Brihaspati being ''nich,'' ''bakra,'' atichar, etc., is taken into consideration only when a marriage is performed within the Mithila country.

In re-examination, however, he says:

Wherever the people governed by Mithila School will go for marriage either in United Provinces or elsewhere, they will observe the ''nich'' or ''bakra,''etc., of Brihaspati.

It is not easy to reconcile this statement with his statement in cross-examination. Reading the evidence of P. W. 35 and D. w. 12, the latter to my mind seems to be more competent and reliable. As regards the other ground, namely, that the planet Jupiter being in its own house, the month could not be regarded as inauspicious. D. W. 12 was cross-examined and asked if he could support his statement by any authority. He referred to the 48th Sloka of Muhurtehintamani which is admitted to be a treatise of authority on the subject. The following passage from the translation Ex. E of the Sloka does support the opinion of the witness:

Therefore Jupiter being in Dhanu Rasi (Saggit-tarius) there it being supreme for all persons by gochar by reason of the aforesaid text even if Jupiter become retrograde still it becomes auspicious.

Mr. Jha also points out from the Mithilaalmanac,Ex. 25-a that the 9th to 13th Baisakh 1343 are shown as "Sudh" or auspicious. But the evidence of D. W. l at p. 137 suggests that the marriage took place towards the end of Baisakh. However having regard to the evidence of D. W. 12 I feel inclined to hold that the marriage of defendant 3 in Baisakh 1343 could have taken place even according to the Mithila almanac. So the fact that the,mar riage took place in Baisakh 1843 is quite inconclusive. It may further be mentioned that defendant 3 was married in a family living outside Mithila and governed by the Benares School. It is not at all unlikely that the date of marriage might have been fixed according to the almanac prevailing in the place where the bride''s family resided. Where marriage takes place between parties residing in different places, the date of marriage is fixed according to the convenience of the parties. I do not therefore attach much importance to the fact that the defendant was married in Baisakh 1343. It is important to observe that admittedly the Agarwalas of Ulao are married in families living outside Mithila and govern-. ed by the Benares School. This is a circumstance which to my mind makes it still more difficult for the defendants to prove that their family is governed by the Mithila School.

Mr. Das has laid some stress on the fact that the adoption ceremony was attended by the agnates and castemen of the family. This conduct on the part of the agnates and the castemen, he says, is inconsistent with the supposition that the family is governed by the Mithila School. It is said that an adoption by a widow is not permissible under the Mithila law, and therefore the agnates and castemen would, far from taking part in the adoption ceremony, have protested against it. This argument does, not appeal to me. No immoral act was being done by the adoption and the interests of the agnates or castemen were not going to be affected. The defendants whose interests were affected are not shown to have been present at the time. Rai Bahadur Ram Sumran was an influential and wealthy person and his widow under authority conferred by him was making the adoption. The ceremony was performed with great pomp, and respectable people, such as the Sub-divisional Magistrate who was an I. o. S. and advocates practising in this High Court, were invited. In those circumstances it was only#quite natural for the agnates and castemen to attend the ceremony. However, considering the evidence as a whole, I agree with the learned Subordinate Judge''s finding that the family is governed by the Benares School.

The next question for consideration is whether there is any family custom prohibiting adoption by a widow. The onus to prove the custom undoubtedly lies upon the defendants. They have examined a number of witnesses, some of whom say that there is no custom in the family of widows adopting and others say that there is a custom prohibiting adoption by a widow. Their evidence is naturally all hearsay, but so far as they express their independent opinion, their evidence is admissible, provided they have special means of knowledge : see Section 49, Evidence Act. In Gururadh-waja Prasad v. Suparandhwaja Prasad (01) 23 All. 37 it was laid down by their Lordships of the Privy Council that

it is admissible evidence for a living witness to state his opinion on the existence of a family custom and to state as the grounds of that opinion information derived from deceased persons and the weight of the evidence would depend on the position and character of the witness and of the persons on whose statements he has ''formed his opinion. But it must be the expression of independent opinion based on hearsay and not mere repetition of hearsay.

The witnesses merely make general statements and do not give any reasons to support their opinion. Some of them merely repeat what they heard from others. Without discussing in detail their evidence, it is sufficient to say that upon such evidence it is impossible to find that the alleged custom has been proved. It is remarkable that the plea of the existence of the custom was not taken in the written statement which was at first filed by defendants 1 and 2 on 3rd December 1934. It was taken for the first time when defendant 3 appeared as a major and filed his written statement on 25th February 1936, and subsequently it was taken by defendants 1 and 2 in their supplementary written statement which was filed on 2lst October 1936. It seems to me that the plea was an afterthought.

Mr. Jha draws our attention to the fact that the plaintiff''s evidence discloses that in the Agarwala families at Ulao there were a number of childless widows, but there is no instance of any adoption by a widow. He also refers to the long genealogy filed by the plaintiff, which is printed at p. 244 of Part 3 of the paper-book, and contends that this genealogy does not show that there was any adoption in the family. It is to be remembered that adoption is not of common occurrence, and particularly adoption by a widow is rare. Even in families where adoption by a widow is permissible we find abundance of childless widows. No inference therefore can be drawn from the fact that in the Agarwala families of Ulao there were many childless widows who did not adopt. As regards the genealogy at p. 244, there is nothing in it to justify the suggestion that there was never any adoption in the family. It is to be noticed that the genealogy does not mention any widow''s name at all.

I have no hesitation in accepting the learned Subordinate Judge''s finding that the custom prohibiting adoption by a widow has not been established. The plaintiff must, therefore, be held to be validly adopted son of Rai Bahadur Ram Sumran Prasad. The next and most important question for consideration is whether the plaintiff, being the adopted son of Rai Bahadur Ram Sumran, is entitled to succeed to the shebaiti interest which was held by him. This question primarily depends upon an interpretation of the deeds of endowment, Ex. 39 dated 6th December 1906 Ex. 39 (a) dated 12th September 1912. The first deed was executed by (1) Mt. Jayanti Kumri, (2) Brahamdeo Prasad, (3) Ram Sumran Prasad and (4) Jagatdhar Narain. At the time of the second deed Brahmadeo being dead, it was executed by (1) Mt. Jayanti Kumri, (2) Ram Sumran Prasad and (3) Jagatdhar Narain. The terms of the two deeds are similar in all material respects. The rule of succession to the office of shebait is laid down in para. 8 of the first deed Ex. 89 which corresponds to para. 7 of the second deed Ex. 39 (a). The relevant portion of para. 8 of Ex. 89 is as follows:

during my lifetime I, declarant 1, myself shall remain the sevait of the said Sri Sri Thakurji Maharaj and shall as sevait manage and make collection of all the wakf properties specified below, as well as look after and repair the said temple and shall, with the income of the said properties after payment of the colleotorate demands and meeting the establishment charges etc., meet the expenses of seva, puja and utsevas of the said Sri Sri Thakurji and other charitable expenses (e. g.) alms, sada-barat, pathshala, gaushala etc., appertaining to the said temple, as specified in Sch. 2. On the death of declarant 1 we declarants 2 to 4 i. e., those who will remain alive at the time of the death of declarant 1 as well as in case of the death of any one of us declarants 2 to 4 the male heirs remaining alive at the time of the death of declarant 1 will in place of declarant 1 be and remain the sevaits of the said Sri Sri Thakurji and of the temple and wakf properties. Subsequently on the death of any sevait his male heir or heirs will one after another be sevaits in his place.

In construing these provisions it will be necessary to bear in mind the principles that were laid down in the well known case Jatindra Mohan Tagore v. Ganendra Mohan Tagore (72) I. A. S. 47. These principles are as follows:

Inheritance does not depend upon the will of the individual owner; transfer does. Inheritance is a rule laid down (or in the case of custom recognised) by the State, not merely for the benefit of individuals, but for reasons of public policy.

It follows directly from this that a private individual, who attempts by gift or will to make property inheritable otherwise than the law directs, is assuming to legislate, and that the gift must fail, and the inheritance takes place as the law directs. This was well expressed by Turner L. J. in Soorjomonee Dosee v. Denobundoo Mulliek (1854) 6 M. I. A. 526 ''A man cannot create a new form of estate or alter the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy.''

Another general principle applicable to transfers by gift (more liberally applied in the law of England to wills than to gifts inter vivos) is, that a benignant construction is to be used, and that if the real meaning of the document can be reasonably ascertained from the language used, though that language be un-grammatical or untechnical, or mistaken as to ,name or description, or in any other manner incorrect, provided it sufficiently indicates what was meant, that meaning shall be enforced to the extent and in the form which the law allows. ,

Accordingly, if the gift confers an estate upon a man with words imperfeptly describing the kind of inheritance, but shewing that it was intended that he should have an estate of inheritance, the language would be read as conferring an estate inheritable as the law directs.

If an estate were given to a man simply without express words of inheritance, it would, in the absence of a conflicting context, carry by Hindu law (as under the present state of law it does by will in England) an estate of inheritance. If there were added to such a gift an imperfect description of it as a gift of inheritance, not excluding the inheritance imposed by the law, an estate of inheritance would pass.

If, again, the gift were in terms of an estate inheritable according to law, with super-added words restricting the power of transfer which the law annexes to that estate, the restriction would be rejected, as being repugnant, or, rather, as being an attempt to take away the power of transfer which the law attaches to the estate which the giver has sufficiently shewn his intention to create though he adds a qualification which the law does not recognise.

If, on the other hand, the gift were to a man and his heirs, to be selected from a line other than that specified by law, expressly excluding the legal course of inheritance, as, for instance, if an estate were granted to a man and his eldest nephew, and the eldest nephew of such eldest nephew, and so forth, for ever to take as his heirs, to the exclusion of all other heirs, and without any of the persons so taking having the power to dispose of the estate during his lifetime; here, inasmuch as an inheritance so described is not legal, such a gift cannot take effect except in favour of such persons as could take under a gift to the extent to which the gift is consistent with the law. The first taker would, in this case, take for his lifetime, because the giver had at least that intention. He could not take more, because the language is inconsistent with his having any different inheritance from that which the gift attempts to confer, and that estate of inheritance which it confers is void.

It follows that all estates of inheritance created by gift or will, so far as they are inconsistent with the general law of inheritance are void as such, and that by Hindu law no person can succeed thereunder as heir to the estates described. in the terms which in English law would designate estates tail.

Jatindra Mohan Tagore v. Ganendra Mohan Tagore (72) I. A. S. 47 was a case relating to ordinary secular property, but the principles laid down in that case apply equally to she-baitship, as held by the Privy Council in AIR 1936 318 (Privy Council) . The learned Subordinate Judge upon a construction of the deeds has held that Rai Bahadur Ram Sumran had only a life interest in the office of shebait. Mr. P. R. Das for the respondent seriously challenges this finding, and contends that both ''Rai Bahadur Ram Sumran and Jagatdhar Narain had absolute estate in the shebaitship. By ''absolute, estate'' he means ''heritable estate,'' because the shebait has no absolute power of disposal in respect of the shebaiti right. Sir Manmatha Nath Mukherji who has argued this part of the case for the appellants, on the other hand, contends that both Ram Sumran and Jagatdhar had only life interest. The crucial point is, what was the paramount intention of the founder ? The intention has to be gathered from the document read as a whole. Now reading para. 8, it is manifest that the founder who was a female intended that after her "declarants 2 to 4" or their male heirs remaining alive at the time of her death would be the shebaits, and subsequently on the death of any shebait, his male heir or heirs would be the shebaits. In other words, all the succeeding shebaits would be males. The line of succession was thus limited to males only. This necessarily implies that the female heirs were to be excluded. Mr. Das contends that the gift to "declarants 2 to 4" was absolute, and the subsequent provision that "subsequently on the death of any sebait his male heir or heirs will one after another be sebaits in his place" merely declares, rather emphasises, the intention of the founder, already expressed in the preceding sentence, that absolute estate was given to "declarants 2 to 4." He argues that inheritance ordinarily goes to the male heirs and, therefore, the use of the expression "male heirs" does no more than express the intention to lay down a line of succession in accordance with the ordinary rule of inheritance. He relies on the following decisions of the Privy Council: AIR 1925 306 (Privy Council) which affirmed the decision of the Bombay High Court in Dadabhoy Framji v. Cowasji Dorabji A. I. R. 1923 Bom. 177, Tripurari Pal v. Jagat Tarini Dasi 40 Cal. 274, Bhooban Mohini Debia v. Hurrish Chunder 4 Cal. 23 and Raghunath Prasad v. Deputy Commissioner, Partabgarh A. I. R. 1929 P. C. 283. In Dadabhoy Framji v. Cowasji Dorabji A. I. R. 1935 P. C. 306le a deed of settlement provided:

Upon trust for the said Dhanbaiji for and during her life and after the decease of the said Dhanbaiji widow, upon, trust for the said Bustomji .... and after his decease upon trust for his sons and their mate heirs absolutely in equal shares and proportions as tenants-in-common.

In the appeal before the High Court it was contended that the use of the words "male heirs" imposed a limitation upon the interests of the sons of Rustomji. But the High Court held that

the estate given to the sons of Bustomji is absolute and not limited. The use of the expression ''male heirs'' means no limitation upon it. The words "absolutely in equal shares and proportions as tenants-in-common" appear to me to negative the idea of any. limitation upon the estate given to. the sons of .Framji (obviously mistake for Rustomji).

It is clear that it was not because of the use of the expression "and their male heirs" but of the words "absolutely in equal shares. . ." that the gift to the sons was held to be absolute. In the present case there are no such express words to indicate that the gift to the declarants 2 to 4 was absolute. In Tripurari Pal v. Jagat Tarini Dasi 40 Cal. 274 .the question turned on an interpretation of the following provisions in a will:

My present begotten son Mukunda Murari will be shebait for the performance of those ceremonies. If during the minority of the said Mukund Murari Pal I die then my second wife Srimati Brajamati Dasi, who gave birth to Mukund Murari, will be shebait as his guardian, during the time of the said Mukund Murari''s. minority, and Mukund Murari, on attaining majority, will personally conduct the work of the sheba. God forbid if during my lifetime or after my death, the said Mukund Murari dies, then the said Brajamati Dasi will be shebait, and, after her death, Srimati Nistarini Dasi and Srimati Jagat Tarini Dasi, daughters born of the said Brajamati Dasi and of my loins, will be shebaits.

The testator died leaving his widow Brajamati Dasi, his son Mukund Murari, then a minor aged about three years, his daughters Nistarini and Jagat Tarini. During Mukund''s minority Brajamati as his guardian acted as shebait according to the terms of the will. After attaining majority Mukund himself took possession of the estate and acted as shebait. He died leaving a minor son and a widow. His mother Brajamati Dasi took possession of the estate. Thereupon Mukund''s widow as guardian of his minor son brought a suit for possession of the estate including the debutter properties. The High Court held that Mukund Murari had only life interest in the shebaitship under the terms of the will. Their Lordships of the Privy Council reversed the decision of the High Court, saying:

There is, in their Lordships'' view, an absolute . gift of the shebaitship to the son Mukund Murari on his attaining majority, and it is not cut down, as far as they can see, by anything that follows. There are provisions in the case of his death as a minor, but no provision cutting down the absolute gift to him.

This decision was thus based on the peculiar provisions of the will which bear no analogy to those of the deeds of endowment before us. In 5 I. A. 13819 their Lordships were construing a sanad of which the material portion is as follows:

being in possession of the lands and paying rent according to the tahut jamma, do you and the generations born of your womb successively (santansreni krame) enjoy the same. No other heir of yours shall have right or interest.

In the High Court it was contended that the word ''santan'' signified sons only, but this contention was negatived, and it was held that the word carried "the wider and more general meaning of issue." In the Privy Council their Lordships held that the words

being in possession of the lands and paying rent according to the tahut jamma, do you and the generations born of your womb successively enjoy the same

imported an absolute estate, such as would have been given had the words been "your children and grandchildren." The vernacular words santan sreni krame are clear enough to create an estate of inheritance. The absolute estate thereby created could not be cut down by the subsequent words "No other heir of yours shall have right or interest." Their Lordships considered that these Words might be read as referring to the time of the death of the donee; that their effect was to make the absolute estate before given, defeasible in the event of a failure of issue living at the time of her death, in which event the estate was to revert to the donor and his heirs. In the present case the expression "male heirs" cannot possibly be read as meaning "children and grandchildren." In 34 O.W. N. 6120 the decision of their Lordships was based on the following terms of a will:

Lal Pratab Bahadur Singh shall be my heir and successor. The said heir after he has inherited me, shall be bound to abide by all the following terms.

This was followed by certain clauses which imposed various limitations on the legatee Lal Pratab''s power to deal with the estate. Their Lordships said'':

Their Lordships are of opinion that the words in the will ''that the estate shall vest in Pratab'' and that he shall be the testator''s ''hair and successor'' are clear dispositive words creating an absolute estate of inheritance in Pratab and,they are further of opinion that the various clauses referred to above which were to come into operation after he had so inherited, must be regarded as an attempt to impose repugnant conditions upon the estate so created and are, therefore, void.

There is, therefore, no resemblance whatever between the facts of that case and those of the present. Mr. Das also relies on a decision of the Calcutta High Court in Kandarpa Mohan Gossain Vs. Akhoy Chandra Bose and Another, . In this case there was a deed of dedication which inter alia provided as follows:

That the said settlors shall during their natural lives act as such shebaits as aforesaid with power to each of them to nominate or appoint by deed or will her successor in office. In default of such appointment by the said Sreematee Surabala Dasee, her spiritual guide, Babu Mahendranath Chatterji of Salkia, or, in case of his death, his eldest male heir and, in like default by the said Sreematee Sarajubala Dasee, her spiritual guide, Babu Harimohan Go-swami, or, in the case of his death, his eldest male heir, jointly with the survivor of the said settlors, and, after the death of both of the said settlors, and in default of such appointment as aforesaid, the said two spiritual guides or their or hisi eldest male heir shall act as joint shebaits of the said deities, and thenceforth the future shebaits shall consist of the eldest male descendants of the said Mahendranath Chatterji and the said harimohan Goswami, provided always that every future shebait of the said deities shall have like power to nominate and appoint by deed or will his successor in office.

Upon a construction of this deed the High Court held that Harimohan Goswami had an absolute estate in the shebaitship. The learned Judges at pp. 116-17 said:

Apart from such restrictions, as there must be by reason of the character of the property itself, i. e., the shebaitship, there was no restriction of any of the above descriptions in this case. There are no words indicating ''for life'' used in connexionwith the gift to Harimohan. The power of nomination and appointment of a successor by deed or will was given: indicating that even during Harimohan''s lifetime, some body else nominated and appointed by him could take as shebait.

Then after quoting the following passage from Jarman on Wills, 7th Edn., Vol. 2, p. 766:

Where a testator gives property to A and then provides for the case of A''s dying without having disposed of it, the question arises whether the original gift is an absolute one, in which case the gift over is repugnant and void; or whether A takes an estate for life, with a general power of appointment, followed by a gift over in default of appointment" the learned Judges said:

It has been pointed out by the learned author that the distinction is difficult to draw, but the cases referred to by him in connexion with this matter do, in our opinion, lend support to the proposition that where there is a gift not limited in any way but equally capable of being construed as a gift for life or an absolute gift, and it is followed by a general power of appointment and a gift over in default of appointment, the first gift should be treated as an absolute gift unless the whole frame of the will suggests otherwise.

It thus appears that the learned Judges relied mainly upon the power of nomination and appointment of a successor which was conferred on Harimohan by the deed, Mr. Das contends that the conferring of a mere power of appointment does not convey an absolute estate. This may be true in the case of ordinary property, but in the case of a shebaitship the shebait has no power of disposal over the property and the power of appointment conferred on him may be a sufficient indication of the founder''s intention to confer on him a heritable estate. If, in the present case Ram Sumran and Jagatdhar had been given such power of appointment, the position might; have been different. Sir Manmatha Nath Mukherji, on the other hand, relies on the following decisions of the Privy Council: Tarokessur Roy v. Soshi Shikhuressur Roy 9 Cal. 952, Sreemutty Kristoromoney Dossee v. Maharaja. Narendra Krishna Bahadoor 16 Cal. 383 and Gopal Chunder Bose v. Kartick Chunder Dey 29 Cal. 716. In Tarokessur Roy v. Soshi Shikhuressur Roy 9 Cal. 952 the testator gave by his will to three sons of his brother certain estates "for payment of the expenses of their Pious acts." He also directed as follows:

The said three nephews shall hold possession of the same in equal shares and shall pay the Government revenue of the same into the collectorate. They shall have no right to alienate the same by gift or sale; but they, their sons, grandsons, and other descendants in the male line shall enjoy the same, and shall perform acts of piety as they respectively shall see fit for the spiritual welfare of our ancestors. If any of them die without leaving a male child (which God forbid) then his share shall devolve on the surviving nephews, and their male descendants, and not on their heirs.

In a suit by the survivor of the three nephews-against the testator''s heir, the question arose whether the plaintiff was entitled to an absolute estate in the whole of the property, as contended by him, or only to a life estate in one-third of the property, as contended by the defendant.. The Court of first instance gave the plaintiff a decree for his whole claim. This decree was altered by the High Court which gave him a life interest in the whole of the property. The High Court held on the authority of the Tagore''s case18 that the testator having attempted to create an estate of inheritance unknown to and opposed to Hindu law, that estate of inheritance was void, and that the will operated only to confer on the plaintiff an estate for life. From the judgment of the High Court there were cross-appeals, the first by the plaintiff, on the ground that he was entitled to an absolute estate in the whole; the second by the defendant, on the ground that the plaintiff was entitled to a life estate in one-third only. Their Lordships dismissed both these appeals. While dealing with the plaintiff''s appeal, their Lordships said:

Considering that the gift to the nephews is expressed as to be received for the defrayment of their pious acts, and that alienation is forbidden, they do-not construe the gift, independently of the words prescribing the course of succession, as conferring an absolute estate. They are further of opinion that to. alter the words prescribing the course fit succession, so as to admit females, would be in effect to make a new will for the testator, and one which, so far from carrying his intentions into effect, would be in direct opposition to his intention, and indeed to his main object, expressed in other parts of his will, as well as in this clause, viz., to exclude females.

Their Lordships thus construed the words "their sons, grandsons, and other descendants in the male line" to limit the course of sue-cession to males only and to exclude females. The reasoning given by their Lordships may be employed with equal force to the present case. No doubt in the deed there was a clause forbidding alienation, but this clause would have been void if the words prescribing the course of succession had created an absolute estate. It may be mentioned that the last sentence of the deed., which has been quoted above was considered by their Lordships while dealing with the defendant''s appeal. The words "and not on their heirs" occurring in the last part of the sentence did not enter into their Lordships'' consideration while they were dealing with the plaintiff''s appeal. In 161. A.C. 2933 their Lordships had to consider the following provision in a will:

I give devise and bequeath the residue of my real and personal estate both joint and self-acquired unto my executors, in trust to pay the rents issues profits and income thereof unto my said daughter during her lifetime, and after her death in trust to pay assign and convey the residue of my estate real and personal to my half-brothers Rajas Nreependro Krishna Bahadur and Norendro Krishna Bahadur in equal moieties and to the heir or heirs male of their or either of their body, in failure of which in trust to give the same to the son or sons of my said daughter.

Their Lordships held that according to the true construction of the will, the gift of the residue, so far as it purported to confer an estate of inheritance on the testator''s half-brothers and the heirs male of their bodies, was contrary to law and void; and each of the half-brothers took an estate for life in one moiety of the residue in remainder expectant on the death of the daughter. The following passage from their Lordships'' judgment is significant:

Their Lordships cannot see where the absolute gift of the property to the brothers comes in. It is given, not to them, but to them and their heirs male. Why should the words ''heirs male'' be introduced at all, if an estate descendible to heirs general has previously been given ? The words must mean either that the estate of inheritance given to the brothers is a qualified one, or that the heirs male are to take somehow by way of direct gift from the testator.

Their Lordships further said:

At all events their Lordships must construe the words in their plain and obvious sense; and finding no gift to the brothers, except that which orders a conveyance to them and the heirs male of their bodies, they hold that the intention was to confer on them an estate of inheritance resembling an English estate in tail male. That cannot take effect.

This case, therefore, favours the contention that in the present case Ram Sumran and Jagatdhar did not take absolute estate. In 29 cal. 71624 a Hindu testator by a will created an endowment for religious worship in a pagoda and directed as follows:

The superintendence of the pagoda I entrust to my wife, and after her death to hold it by my son Gour Mohun Dey, after his death by my daughter and her husband Nundo Doolal Bose, and their male children successively.

The Privy Council affirmed the decision of the High Court which held

that the word ''successively'' controlled the whole gift to the daughter, her husband, and the male children and that the intention of the testator was to give life estates in the shebaitship to the sons of his daughter in succession.

This case does not seem to be of any assistance to the appellants except in one respect. One of the contentions raised in that case was that the words "and their male children successively" must be read as equivalent to a well-recognised Hindu expression ''putra poutradi krame''-words regarded as sufficient to pass an estate of inheritance. But that contention was not accepted. This is a sufficient refutation of Mr. Das''s argument that ''male heirs'' in the present case signified an estate of inheritance. In Sasiman Chowdhurain v. Shib Narayan Chowdhury A. I. R. 1922 P. C. 63 their Lordships of the Privy Council said:

It is always dangerous to construe the words of one will by the construction of more or less similar words in a different will, which was adopted by a Court in another case.

The question in each case is, what was thei paramount intention of the testator as expressed in the will ? As I have already said, the paramount intention of the founder as expressed in the deeds of endowment was that after her Ram Sumran and Jagatdhar (leaving aside Bramhadeo who died before the execution of the second deed) should be she-baits and after them their male heirs in succession would be the shebaits. The whole of her intention cannot be given effect to, because the course of succession she was laying down is unknown to Hindu law and is, therefore, void. Ram Sumran and Jagatdhar were expressly appointed as shebaits. To give them an estate of inheritance so as to include females in the line of succession would be going directly against her intention. Her in-tention can be given effect to under the law to this extent that Ram Sumran and Jagat-dhar took life interest only.

The next point for consideration is one that has been raised for the first time in this Court by Mr. Das for the respondent. His contention is that if Ram Sumran and Jagatdhar had only life interest in the shebaitship, the interest which was held by Jagatdhar reverted on his death in 1920 to the heirs of the founder and Ram Sumran, being then the only heir of the founder, inherited that interest. The interest thus inherited by him was not merely an estate for life, but an absolute estate and, therefore, on his death it passed by inheritance to his widow and then upon the plaintiff''s adoption to him. One of the answers given by Sir Manmatha Nath Mukherji to this argument is that on the death of Jagatdhar his eldest son defendant 1, who was undisputedly born before the date of the second deed of endowment, took the interest of his father as an independent gift under the terms of the deed itself. Though he was not born at the time of the first deed, the second deed made exactly similar provisions with regard to the devolution of the office of shebait, so that he could equally take under the later deed, if by it there was an independent gift to him.

The clause in the deed on which the claim to independent gift is founded is "subsequently on the death of any shebait his male heir or heirs will one after another be sevaits in his place." It may be mentioned here that though the vernacular expression used in the two deeds Ex. 39 and Ex. 39 (a) is the same, the English translation is somewhat different. The translation which I have quoted above is taken from para. 8 of Ex. 39 and it appears to be more appropriate. Sir Manmatha Nath Mukherji contends that defendant 1 who was in existence at the time of the second deed answers the description of "male heir" who was to take on the death of Jagatdhar, and, therefore, would be an independent donee under the deed. But, was defendant 1 in contemplation of the founder at the time of the deed? By the clause in question she was leaving the succession to the male heir or heirs of each succeeding shebait; in other words, she was laying down a general rule of succession without having in her mind any particular heir of any particular shebait. That being so, it is difficult to hold that there was an independent gift to any person apart from his being an heir. In 63 I. A. 44815 their Lordships of the Privy Council had to consider a similar question. In that case the provision in a will was as follows:

I appoint my sons Kartick Chunder Dhur and Ram Chunder Dhur to be the shebaits of the said Thacoors and I direct that upon the death, retirement, or refusal to act, of any of them or any of the future shebaits the then next eldest male lineal descendant of Kartick Chunder Dhur or Ram Chunder Dhur shall act as a shebait in place of the deceased or retiring shebait or Shebaits refusing to act as such-it being my intention that the eldest for the time being in the male line of my said sons Kartick Chunder Dhur and Ram Chunder Dhur shall always remain as joint shebaits and in the event of the death or refusal to act of any shebait the then next male member of the branch to which the shebait dying or refusing belonged shall act as a shebait in his place and stead.

At the time of the testator''s death Kartiek''s son Netye and Ram''s eldest son Lal Behary were in existence. Kartick and Ram survived the testator and under the terms of the will acted as shebaits till their death. Kartick left him surviving his son Netye and Ram left four sons including his eldest son Lal Behary. On the death of Kartick and Ram disputes arose regarding the shebaitship between their surviving brother Ganesh, on the one hand, and Netye and Lal Behary on the other. Their Lordships held that there was a valid gift for life to Kartick and Ram and that on their death the succession to the office of shebait was to be regulated by the ordinary Hindu law of succession. The contention was raised on behalf of Netye and Lal Behary that they were entitled to act as shebaits "by virtue of a gift for life to them, which was independent of the line of succession otherwise invalidly sought to be laid down by the testator." This contention was overruled by their Lordships in these words:

Their Lordships do not find it possible, as matter of construction of the clause here in question, to find a separable gift in favour of the persons who were to take respectively on the death, retirement or refusal to aot of Kartick and Ram. The testator combines the whole series of changes in the succession in one sentence, ''upon the death, retirement or refusal to act of any of them (Kartick or Ram) or any of the future shebaits,'' and additional force is given to this observation by the terms of the declaration of the testator''s intention in the later part of the clause, which also covers the whole series of changes in the succession.

Sir Manmatha Nath Mukherji attempts to support his contention by referring to Section 15, T. P. Act, which runs as follows:

If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in Sections 13 and 14, such interest fails in regard to those persons only and not in regard to the whole class.

It may be mentioned that before the amending Act 20 of 1929 the section which is in chap. 2, T. P. Act, did not apply to Hindus, because u/s 2, Clause (d) of the Act, as it stood before the amendment, provided that "Nothing in chap. 2 of this Act shall be deemed to affect any rule of Hindu, Mahomedan or Buddhist law.

By the amendment the words "Hindu" and "or Buddhist" were omitted. It is further to be mentioned 4hat by the amending Act 20 of 1929 the concluding words "in regard to those persons only and not in regard to the whole class" were substituted for the words "as regards the whole class". Notwithstanding these amendments, the present Section 15 assuming that it has a retrospective effect, has no application to the present case.

The section refers to failure of interest by reason of any of the rules contained in Sections 13 and 14. Sections 13 and 14 run as follows:

Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.

No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.

In the present case the gift to the male heirs of any of the shebaits fails not by reason of the rules contained in Sections 13 and 14, but because the estate of inheritance which is thereby sought'' to be created is not jiermissible under the Hindu law. Coming back to the intention of the founder, it is to be noticed that at the time of the first deed defendant 1 was not in existence, and could not, therefore, possibly be in the contemplation of the founder; and when she proceeds to execute the second deed, she uses the same language in laying down the line of succession and makes no reference whatever to defendant 1 who was born in the meantime. This suggests that she had not in her contemplation any independent gift to defendant 1 apart from the line of succession that she was laying down. For the above reasons, I am unable to accept the contention that there was an independent gift to defendant 1 by the second deed Ex. 39(a). But whether there was any independent gift to defendant 1 or not, the fact remains that the defendants since the death of their father in 1920 have been undisputably in enjoyment of the shebaiti interest that was held by their father. Paragraphs 12 and 13 of the plaint run thus:

That the said Babu Jagatdhar Narayan Prosad died in the year 1920 leaving behind three minor sons, the defendants in this suit as his heirs and according to the conditions and terms of the aforesaid deeds of endowments, these three minor sons under the guardianship of their mother Srimati Devijee, got themselves recorded in their father''s place in the Land Registration Department as co-shebaits along with the said Rai Bahadur Ram Sumran Prosad."

That the plaintiff after his adoption applied through his adoptive mother on 30th July 1928, for mutation of his name as a co-shebayet in place of the late Rai Bahadur Ram Sumran Prosad along with the defendants in respect of the said endowed properties. The defendants, however, most unjustly opposed the said application and the Land Registration Deputy Collector of Monghyr by his order, dated 31st October 1928, disallowed the said application of the plaintiff and referred him to the civil Court for remedy.

In para. 16 (a) it is stated that

the interest of the plaintiff as shebait in the endowed properties mentioned in Schs. 1 to 4 of the plaint is 8 annas, i.e., the interest of the adoptive father in the said endowed prpperties.

Prayer (1) in para. 19 is as follows:

That a decree for joint possession and participation in the management of the said endowed properties as a co-shebait of the said endowed properties moveable and immovable mentioned in Schs. 1, 2, 3 and 4 of the plaint along with the defendants be given to the plaintiff for the purposes of enabling him to exercise his rights under the said endowments as a co-shebait with them on adjudication that he is a co-shebait of the deity mentioned in the two deeds of endowments of 6-12-1906 and 12-9-1912 aforesaid and of the endowments covered thereby, along with the defendants, by virtue of the provisions contained in the said deeds as the duly adopted son of late Rai Bahadur Ram Sumran Prosad.

From the plaint, therefore, it is clear that the plaintiff is laying no claim to the 8 annas interest that was held by Jagatdhar which is admittedly in the possession of the defendants. The plaintiff confines his claim entirely to the 8 annas interest that was held by his adoptive father. If Mr. Das''s contention were to be accepted, the position would be that on the death of Jagatdhar, Ram Sumran became the sole shebait in respect of the 16 annas interest-8 annas in his own right under the deed itself and the remaining 8 annas as the heir of the founder. The plaintiff in his plaint definitely gives up in favour of the defendants the 8 annas interest which had been held by their father Jagatdhar. If he had laid a claim to the 8 annas of Jagatdhar, the defendants might have pleaded, and perhaps successfully, that on the death of their father they came into possession of his 8 annas by some arrangement with Ram Sumran and that in any view the claim was barred by limitation. No doubt the plea of limitation was in fact raised by the defendants, but this plea related to 8 annas of Ram Sumran who died within 12 years of the institution of the suit. So far as Jagatdhar''s share was concerned, limitation would run from his death which took place more than 12 years before the institution of the suit. The minority of the plaintiff would be of no avail, because the period had already commenced to run during his adoptive father''s lifetime. It is true that the defendants also pleaded adverse possession since 1920, that is to say, since the death of their father, but in view of the plaintiff''s claim the case appears to have been tried in the lower Court on the*footing that limitation would run from the date of Ram Sumran''s death.

Mr. Das argues that all that the plaintiff is claiming is 8 annas shebaiti interest, and the question whether that interest belonged to his adoptive father or to Jagatdhar is a pure question of law depending on the construction of the deeds of endowment. But this is. Not correct. The plaintiff in his plaint makes a clear distinction between the 8 annas interest of his adoptive father and that of Jagatdhar. To permit him now to claim the 8 annas in-terest of Jagatdhar would be making out a new case which the defendants had no chance of meeting. I am, therefore, of opinion that the plaintiff cannot at this stage claim the 8 annas interest which was held by Jagatdhar. I shall now consider whether on the death of Jagatdhar his 8 annas interest actually reverted to the heirs of the founder. Mr. Das''s argument is this. Shebaitship is property and all the rules relating to property will apply to shebaitship except, of course, such rules as are incapable of being applied owing to its peculiar nature. Where life estate is created, there is a vested estate in ''reversion in the settlor. Earn Sumran and Jagatdhar had life interest in the shebaiti property in specific shares as tenants-in-common. Therefore, on the death of Jagatdhar, his 8 annas share reverted to the heir of the founder. In Manohar Mukherji v. Bhupendranath Mukherji AIR 1932 Cal. 791 a Full Bench of five Judges of the Calcutta High Court held that shebaitship is property, and this decision was referred to with approval by their Lordships of the Privy Council in AIR 1936 318 (Privy Council) . The real question for decision in the Full Bench case will appear from the following passage:

The question referred to the Full Bench, therefore, mainly depends on the question whether shebaitship in Hindu law is property of any kind, to which atindra Mohan Tagore v. Ganendra Mohan Tagore (72) I. A. Sup. 47 may apply, or is merely an office to which the founder of an endowment is competent to appoint or nominate persons in any order of succession, which may have the effect, so far as the founder is concerned, to use the words of Lord Justice Turner in 6 M. I. A. 526,14 of creating a new form of estate or altering the line of succession allowed by law, for the purpose of carrying out his own wishes or views of policy.

It is obvious that the learned Judges were considering whether shebaitship is property for a limited purpose. ''Shebaitship'' means ''office of a shebait.'' Their Lordships of the Privy Council have always regarded a shebait as the holder of an office: see Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271 and Bamanathan Chetti v. Murugappa Chetti 29 Mad. 283 The very questions formulated for decision in the said Full Bench case expressly related to the "office of shebait." Therefore though shebaitship is property, it is nevertheless an office. Now when a debutter endowment is created and shebaits are appointed for carrying on the worship,of the idol and the administration of the endowment, the question when the shebaitship will revert to the founder or his heirs will have to be determined by considerations applicable to the peculiar nature of property in shebaitship and not by considerations which are applicable to ownership in ordinary property. Once an endowment is created, the founder ceases to have any personal interest in the property endowed. Nor has he any interest in the shebaitship except what he reserves to himself or his heirs by the deed of endowment. Where, however, the line of shebaits prescribed by him fails, he or his heirs have got the right to take upon themselves the management of the endowment. This is how reverter takes place. The reason why it takes place is obvious. When there is no one legally competent to carry on the worship of the idol and look after the endowment the duty falls upon the founder or his heirs.

When two or more shebaits are appointed, they, in the absence of any directions to the contrary by the founder, are joint shebaits and have to act collectively for the performance of the duties connected with the endowment. Indeed, for the due performance of worship they may divide their duties into what may be called turns of worship, but by such division they do not become separate owners. The office still remains one and during a particular shebait''s turn of worship it is he who is expected to discharge all the functions appertaining to the office. If one of the shebaits dies without leaving any heir, the office does not fall vacant. The other shebaits are there to perform the duties attached to the office. There is thus no occasion for the founder or his heirs to come in and take upon themselves the duties of the shebait. Therefore there is no reason for any reverter. Where the founder appoints two or more joint shebaits for their lives, it; does not stand to reason that on the death of each of these shebaits his interest will revert to the founder or his heirs. The shebait, though not a trustee in the English sense of the term, is still a trustee in the general sense, as held by their Lordships of the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar A. I. R. 1922 P. C. 123. In Norendra Nath v. Atul Chandra A. I. R. 1918 Cal. 810 it was held that:

Where the administration of the trust is vested in several trustees, they all form, as it were, but one collective trustee, and they must exercise the powers of their office in their joint capacity. Their interest and authority being equal and undivided, they cannot act separately but all must join.

The question that arose in that case was whether some of the shebaits of an idol could maintain a suit for recovery of their share of the rent payable by the tenant. It was held they could not. This decision was approved by their Lordships of the Privy Council in AIR 1934 58 (Privy Council) Mr. Das wants to distinguish these cases on the ground that they related to the properties of the endowment. He suggests that shebaitship is different from the properties of the endowment. But their Lordships of the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271 pointed out that there is no distinction between the office and the property of the endowment. The one is attached to the other. If the shebaits can be regarded as forming but one collective trustee as held in Narendra Nath v. Atul Chandra A. I. R. 1918 Cal. 810, it is difficult to see how the shebaitship can revert to the founder or his heirs when one of the shebaits dies without leaving any heir. Mr. Das argues that Section 76 or other provisions of the Trusts Act (2 of 1882) cannot be applied to religious or charitable endowments, because Section 1 of the Act expressly excludes such endowments from the operation of the Act. But the above decision in Narendra Nath v. Atul Chandra A. I. R. 1918 Cal. 810 was not based on any provisions of the Trusts Act. The effect of Section 1, Trusts Act, is that the specific provisions of the Act are not applicable to religious or charitable endowments.

Mr. Das contends that where a life estate is created there must be a vested remainder in the settlor, and he relies chiefly on the decision of the Privy Council in 16 I. A. 2923 But there the property dealt with was ordinary property and not shebaitship. The interest of a shebait, though it may be a life estate, is analogous to a widow''s estate. Like the widow, the shebait for the time being represents the entire estate. The shebait has full power to deal with the debuttor estate, provided he acts for the benefit of the deity. This is not consistent with the theory of there being a vested remainder in the settlor. In this connexion reference may be made to Kunjamani Dassi v. Nikunja Bihari Das AIR 1916 Cal. 312. Mr. Das attempted to show that this decision is wrong, but I do not think that it is so. The position of co-shebaits who have got only life interest may be compared with that of Hindu co-widows. In the case of co-widows, no one of them, acting singly, can deal with the husband''s estate. So long as any one of them is alive, the reversioners cannot come in. Similarly the co-shebaits all jointly hold the office and until they are all dead there is no reverter to the founder or his heirs. Mr. Das argues that Ram Sumran and Jagatdhar took the shebaiti interest in specific shares as tenants in common and not as joint tenants. He relies upon the decisions of the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt (1996) 23 Cal. 670 and Gopal Chunder Bose v. Kartick Chunder Dey (2002) 29 Cal. 716. In Jogeswar Narain Deo v. Ram Chandra Dutt 23 Cal. 670 a Hindu testator bequeathed 4 annas share of a zemindari to his youngest widow and her son, "for your maintenance," with power to them to alienate by sale or gift the "property bequeathed. The will also provided that:

Upon my death you and your sons and grandsons, etc., in due order of succession shall hold possession of the zemindari.

The widow having alienated her 2 annas share, her, son brought a suit to set aside the alienation on the ground that under the will she took no interest beyond a right of maintenance. The High Court, reversing the decree of the trial Court, dismissed the suit on the ground that the plaintiff and his mother took the same interest under the will, each to the extent of a 2 annas share. On appeal to the Privy Council, a further ground was urged on behalf of the plaintiff, namely, that, by the terms of the will, the plaintiff and his mother became, in the sense of English law, joint tenants of the 4 annas share and not tenants-in-common, and that her alienation of her share before it was severed, and without the consent of the other joint tenants, was ineffectual. In overruling this contention their Lordships said:

The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family.

Thus, their Lordships were dealing with a case in which co-ownership in absolute estate held by two legatees was sought to be converted into joint tenancy in the sense of English law. In Gopal Chunder Bose v. Kartick Chunder Dey 29 Cal. 716, which has been already referred to in another connexion, one of the contentions raised in the appeal before the High Court was that by the terms of the will the testator''s daughter, her husband and their male children took as joint tenants absolutely. The learned Judges disposed of this contention in these words:

As regards the suggested construction pointing to the creation of a joint tenancy, I may at once point out that the principle of joint tenancy, as known to the English law is ope unknown to Hindu law, except in the case of coparcenary between the members of an undivided family.

The learned Judges, however, held on a construction of the will that the daughter, her husband and their male children were to take the gift one after another for their respective lives. Their decision was affirmed by the Privy Council. It does not, however, follow from either of the said two decisions that under the Hindu law joint ownership in property other than coparcenary property necessarily implies tenancy-in-common. Take the case of co-widows. It is well-settled according to the decisions of the Privy Council that they take as joint tenants with a right of survivorship, but no one of them has a right to enforce an absolute partition of the estate against the others so as to destroy their right of survi-vorship : see Gauri Nath v. Gaya Kuar AIR 1928 P. C. 251. I have already pointed out that the position of co-shebaits is analogous to that of Hindu co-widows. At any rate the two aforesaid decisions cited by Mr. Das do not support his contention that the shebaitship was held by Ram Sumran and Jagatdhar as tenants-in-common. The point is certainly not free from difficulty, but I feel inclined to think that shebaitship does not re- vert to the founder or his heirs until the line of succession laid down by him is altogether extinct. Here I may, usefully refer to the following passage in Mulla''s Hindu Law, Edn. 8, page 489:

Where a founder has prescribed a line of succession of the office of shebait, but the succession to the office has entirely failed, the right of management reverts to the founder and his heirs.

I accordingly hold that there was no reverter on the death of Jagatdhar, and that it was only on the death of Ram Sumran in 1924 that the shebaitship reverted to the heirs of the founder. Taking Mt. Jayanti Kumri to be the founder, her heirs at the time of Ram Sumran''s death were the defendants, being her husband''s nephews, and therefore the shebaitship vested in them. The learned Subordinate Judge has held that the plaintiff, by virtue of his adoption which would relate back to Ram Sumran''s death, also became an heir, and as such was entitled to be a co-shebait with the defendants. Sir Manmatha Nath Mukherji contends that on the death of Ram Sumran succession having already opened out and the shebaitship having vested in the defendants, the plaintiff by reason of his subsequent adoption could not succeed and divest the defendants of the interest already vested in them. He concedes that the plaintiff could succeed to any property left by his adoptive father even by divesting others in whom the property might have vested in the meantime. But he contends that the plaintiff cannot succeed to any property of any collateral in respect of which succession had already opened out before his adoption. In other words, his adoption cannot relate back to the date of his adoptive father''s death for the purpose of inheriting any property which was not his adoptive father''s property, but was the property of a collateral. In support of this contention he relies on the decision of the Privy Council in Bhubaneswari Debi v. Nilcomul Lahiri 12 Cal. 18 in which it was held that

According to Hindu law, as laid down in the decided cases, an adoption effected after the death of a. collateral relation does not entitle the adopted sort to come in among the heirs of such collateral.

In that case the facts were these: There were-three brothers Kalimohan, Rammohnn and Shibnath Lahiri governed by the Dayabhaga-School of Hindu Law. Rammohun died first, leaving a widow Chandmoni who succeeded to his property. Shibnath then died in May" 1861, in the lifetime of Chandmoni, having given power to his widow to adopt a son. Kalimohun also died before Chandmoni leaving a son Nilcomul. Chandmoni died in June 1867, and on her death Nilcomul as her husband''s nephew and heir succeeded to her husband''s property. Subsequently Shibnath''s widow in accordance-with the authority given by her husband adopted a son Jotendromohun, a minor, who was born subsequent to the death of Chandmoni. This minor adopted son through his adoptive mother as next friend sued Nilcomul to recover half the estate of Rammohun on the allegation that by adoption he became an-equal heir with Nilcomul to the estate of Rammohun. His claim was negatived by the High. Court as well as the Privy Council. One of the reasons given by their Lordships of the Privy Council for dismissing his suit was that he was not born during the lifetime of Chandmoni, and therefore could never, in the course-of nature, have become the heir of Rammohun''s estate. But their Lordships clearly laid down that

an adoption effected after the death of a collateral relation does not entitle the adopted son to come inr among the heirs of such collateral.

We are bound by this statement of the law-Mr. Das contends that this statement of the law can no longer be accepted as correct in. view of the subsequent decisions of the Privy Council in AIR 1933 155 (Privy Council) and AIR 1935 95 (Privy Council) . He-, also relies on the decisions of the Privy Council! in Madana Mohana v. Purushotthama Banga Bheema Deo AIR 1918 P. C. 74 and Pratap Singh Shivsing, v. Shri Shri Agarsingji Baisingji AIR 1918 P.C. 192 on which the-decision in AIR 1933 155 (Privy Council) was largely based. It. is argued that these decisions lay down that when an adoption is validly made by a widow,, the adoption will relate back to the date of the adoptive father''s death for all purposes,, and consequently he will inherit the property not only of his adoptive father, but also of collaterals as if he was a natural son born at, the time of his adoptive father''s death.

In AIR 1933 155 (Privy Council) the facts were these : Raja Brajendra, the holder of an impartible estate died in 1903 leaving a minor son Bibhudendra and a widow Rani Indumati. Bibhudendra succeeded to the estate but died unmarried in 1922 at the age of 20 years 6 months and therefore still a minor, his estate being under the Court of Wards. About a week later, his mother Rani Indumati, in accordance with the authority given by her husband, adopted Amaiendra, a minor. Thereafter one Bana-mali, a separated sapinda of Bibhudendra several degrees removed, brought a suit against Amarendra and Rani Indumati, claiming the estate as an heir to Bibhudendra on the allegation that the adoption of Amarendra was invalid and that Rani Indumati''could not be an heir owing to the existence of a family custom by which females were excluded from succession. The High Court held that on the death of Bibhudendra the estate vested in Banamali as the next heir, Rani Indumati being excluded from succession according to the family custom, and, therefore, the adoption of Amarendra was invalid. This decision was reversed by the Privy Council and their Lordships, holding that the adoption was valid, dismissed the plaintiff''s suit. Before their Lordships it was contended, on the one hand, that when'' once an estate vested in an heir of the last male holder other than the adoptive mother, the power of adoption was at an end. On the other hand, it was contended that adoption being a purely religious act, the power to adopt was not in any way dependent on the vesting of property. Their Lordships overruled the former contention and accepted the latter. Their Lordships said:

In their Lordships'' opinion, it is clear that the foundation of the Brahminioal doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continustnce of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the father''s duty has been performed and the means provided by him for its fulfilment spent: the ''debt'' he owed is discharged and it is upon the new generation that the duty is now cast and the burden of the ''debt'' is now laid.

Then follows the very important statement:

It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognized as the inherent right of the son, is altogether a secondary consideration.

Upon a review of the various authorities their Lordships indicated the limits within, which the widow''s power of adoption can be exercised in the following words:

their Lordships think that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to. the son''s widow, the mother''s power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the son''s lifetime will revive.

Thus according to their Lordships'' decision Amarendra succeeded to the estate as heir to his brother Bibhudendra after divesting Banamali in whom the estate had already vested on the death of Bibhudendra. Mr. Das argues that this was therefore a case of collateral succession. No doubt Amarendra directly succeeded Bibhudendra, but he was really taking, the property of his adoptive father on the strength of the adoption which would relate baok to his adoptive father''s death. The principle on which their Lordships proceeded was.

that the validity of an adoption is to bedeterminedi by spiritual rather than temporal considerations, that the substitution of a son of the deceased for spiritual reasons is the essence of the thing and the consequent devolution of property a mere accessory to it this, passage was quoted by their Lordships from the judgment in Virada Pratapa Raghunadha v. Brojo Kishore 1 Mad. 69. When their Lordships were speaking of devolution of property as being a mere accessory to the adoption, their Lordships were obviously referring, to property of the father for whose spiritual benefit the adoption was made. This is apparent from the following passage, already quoted, "the devolution of property, though recognized as the inherent right of the son, is altogether a secondary consideration.

A widow''s power of adoption, so long as it does not come to an end, carries with it the power to displace, by an adoption validly made, anybody in whom her husband''s property might have vested in the meantime. If there be already a son, her power remains suspended during his lifetime and when he dies without continuing his father''s line the power revives. This is really the effect of their Lordships'' decision in 60 I. A. 242.1 Prom this decision "it by no means follows that the widow''s power, by making an adoption to her husband, to defeat an estate, already vested will have operation even when the estate belonged not to her husband but to one of his collateral relations who owed no spiritual duty to him for the purpose of continuing his line. I am therefore unable to see that there is anything in this decision from which it can be said that their Lordships intended to lay down any rule inconsistent with the earlier decision in Bhubaneswari Debi v. Nilcomul Lahiri 12 Cal. 18.

In AIR 1935 95 (Privy Council) the facts were briefly these: The holder of an impartible estate in the Bombay Presidency died in 1899 survived by a widow and a son. The son inherited the estate, but in 1915 he was adopted into another family. In 1917,the widow made an adoption to her deceased husband. The estate never vested in her because under the rule of suc cession governing the estate females were excluded from inheritance. In 1918 her husband''s brother brought a suit claiming the estate on the ground that it devolved on him in 1915 when his nephew was adopted into another family. He challenged the validity of the adoption which was made by the widow in 1917. The High Court held that this adoption was invalid, on the ground that upon the adoption in 1915 the estate had become vested in the plaintiff, and the widow by making an adoption could not divest him. Their Lordships of the Privy Council reversed the decision of the High Court, holding that the widow had power to make the adoption for the purpose of continuing the line of her deceased husband, although the estate was not vested in her. Here what was actually decided was that the adopted son was entitled to take the adoptive father''s property by divesting some other heir than the adopting widow. There was no question of collateral succession, because the last holder of the estate, the moment he was adopted into another family, ceased to be a member of his natural family, and, therefore, the subsequently adopted son of his natural father could not be regarded as his brother and heir. Thfe decision, therefore, cannot be said to affect the principle of law laid down in Madana Mohana v. Purushotthama Banga Bheema Deo AIR 1918 P. C. 74.

The case in Madana Mohana v. Purushotthama Banga Bheema Deo AIR 1918 P. C. 74 related to the validity of a second adoption made by a widow. Her husband Adikonda Deo, who was the holder of an impartible zamindari.diedin 1868 while living joint with his brother Raghu-nadha Deo, the family being governed by the Mitakshara law. On his death his brother Raghunadha took possession of the zamin-dari. In 1870 the widow adopted a son Brojo Kishore in accordance with the authority given by her husband. By a suit which went up to the Privy Council, Virada Pratapa Raghunadha v. Brojo Kishore 1 Mad. 69, Brojo Kishore recovered the estate from Raghunadha. He remained in possession till 1906 when he died leaving a widow Ratnamala. Possession of the estate was then taken by Raghunadha''s son Vaishnava Deo, who died later in the same year and was succeeded in the possession by his son Purushothama. In 1907 Adikonda''s widow purported to make a second adoption under the terms of the authority given by her husband. The second adopted son instituted a suit against Purushothama to recover the estate. The main question for decision before the Privy Council was whether the second adoption was valid. Their Lordships held that it was not, the reason given being that the authority to adopt conferred by Adikonda on his widow came to an end when Brojo Kishore, the first adopted son, 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." In the concluding portion of the judgment their Lordships, while pointing out that it was in no way in conflict with the previous decision in 3 I. A. 154 39relating to the same estate, observed:

There the title of Adikonda''s widow to displace Raghunadha''s succession was recognized. But Raghunadha''s succession was of a character only provisional and subject to defeasance by the emergence of a male heir to Adikonda.

Relying upon this last passage, Mr. Das contends that even where succession to a collateral has opened, the succession is of a provisional character and is liable to be defeated by the subsequent adoption of a son by another collateral''s widow. But their Lordships were obviously considering the effect of a subsequent adoption with reference to succession to the adoptive father''s property. The question as to whether succession to the property of a collateral, after it had once opened out, could be affected by any subsequent adoption made by the widow of another collateral did not at all arise before their Lordships, nor was in any way decided by them. In 46 I. A. 9738 the litigation related to a village which formed part of an impartible estate ,in the Bombay Presidency and had been the subject of a maintenance grant to a junior branch of the family. By the custom of the family such grants reverted to the estate upon failure of male descendants of the grantee. The last holder Kaliansing died in October 1903, childless, but leaving a widow who some five months later adopted a son. The owner of the principal estate sued for recovery of the maintenance lands on the allegation that they vested in him on Kaliansing''s death, and that consequently the adoption was invalid. This contention was accepted by the High Court, but was overruled by their Lordships of the Privy Council. Their Lordships said:

The right of the widow to make an adoption is not dependent on her inheriting as a Hindu female owner her husband''s estate. She can exercise the power, so long as it is not exhausted or extinguished even though the property was not vested in her.

Their Lordships also said:

Now it is an explicit principle of the Hindu law that an adopted son becomes for all purposes the son of his father, and that his rights unless curtailed by express texts are in every respect the Sftme as those of a natural born son. . . . Again, it is to be remembered that an adopted son is the continuator of his adoptive father''s line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect: Whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as Messrs. West and Buhler point out in their learned treatise on Hindu law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible.

Mr. Das strongly relies on these observations and contends that an adopted son is exactly in the same position as the natural, born son and an adoption has retrospective effect so that the adopted son will inherit not only the father''s property, but also the property of a collateral as if he was adopted at the time of his father''s death. It is undoubted. ly true that the rights of ah adopted son are exactly the same as those of a natural born son. But the question is, when rdo the rights of the adopted son accrue? In 60 I. A. 2421 their Lordships pointed out that

he (the adopted son) in,the absence of an aurasa, or natural bom son, is clothed with all the attributes of a son and is from the date of his adoption regarded as having beeri born in his adoptive family.

In other words, the rights of the adopted son accrue from the date of his adoption. This rule, however, is subject to the exception that where the adoption is made by a widow, it will for the purpose of continuing the line of the adoptive father relate back to his death. It will not be correct to say that such adoption has a retrospective effect for all purposes. Their Lordships in Pratap Singh Shivsing, v. Shri Shri Agarsingji Baisingji AIR 1918 P.C. 192 expressly limit the purpose when they say: "An adoption, so far as the continuity of the line is concerned, has a retrospective effect." As a necessary corollary to the theory of continuity of the adoptive father''s line, it follows that the adopted son will take the property of his father in whomsoever it might have vested since his father''s death. But no such consideration arises where he claims to succeed to property belonging to a different line or branch of the family. With regard to such property his rights accrue only from the time of his adoption. The Hindu doctrine of adoption is founded on the religious efficacy of a son. Adoption is considered necessary for the spiritual welfare of the souls of the immediate ancestors. The validity of an adoption by a widow depends entirely on considerations of spiritual benefit to the deceased adoptive father. If there is a valid adoption by her, the devolution of property follows as a matter of course. This obviously implies that the adopted son will necessarily take the father''s property .There seems to be no reason why adoption by a widow will relate back to the death of the adoptive father so as to entitle the adopted son to inherit the property of a collateral to whom he has not to render any spiritual services. When a collateral dies, succession opens out and his property passes to his heirs in existence at. the time. It is difficult to understand on what principle the subsequent exercise of the power of adoption by the widow of another collateral will reopen the! succession.

So far as devolution of property is concerned, the propositions which appear to me to emerge from the aforesaid four decisions of the Privy Council AIR 1933 155 (Privy Council) , AIR 1935 95 (Privy Council) , Madana Mohana v. Purushotthama Banga Bheema Deo AIR 1918 P. C. 74 and Pratap Singh Shivsing, v. Shri Shri Agarsingji Baisingji AIR 1918 P.C. 192, on which Mr. Das places so much reliance, may be thus stated : (1) If the last male holder of a pro. perty dies leaving a widow to whom he gave authority to adopt, whoever takes his property, whether by survivorship or inheritance or reverter, takes it only provisionally, subject to be displaced, in the event of an adoption by his widow, by the adopted son. (2) If he, the last male holder, dies sonless and unmarried, leaving his mother who had received authority from her husband to adopt a son to him, whoever takes his property, whether by survivorship, inheritance or reverter, takes it only provisionally, subject to be displaced, in the event of an adoption by his mother, by the adopted son. All that the said eases, therefore, establish is that where the last male holder dies leaving either his widow or mother with subsisting power of adoption, succession to his property is of a provisional character, liable to be defeated by a subsequent adoption. If this is so, the authority of the decision in Bhubaneswari Debi v. Nilcomul Lahiri 12 Cal. 18 is in no way shaken. That decision gives effect to the ordinary rule of devolution of property that inheritance goes to the heirs of the deceased owner who are in existence, a child in the womb being included, at the time when succession opens. It is to be observed that the decision in 12 I. A. 137 35 was not referred to in any of the aforesaid subsequent cases, obviously for the reason that these cases were dealing with a quite different question, namely, whether the power of a Widow to adopt would depend upon the vesting of property in her. In these cases the property concerned was the property of the father''s line. If the theory of continuity of line were to be applied to the facts of the case in Bhubaneswari Debi v. Nilcomul Lahiri 12 Cal. 18 there would be no difference whether the adopted son was or was not in existence at the time of Chandmoni''s death. The adoption having a retrospective effect, the adopted son would be deemed to be in existence at the time of Chandmoni''s death, his adoptive father having died in her lifetime, and in that case he would be an heir equally with Nilcomul to Rammohun''s estate. In Jatindra Mohan Tagore v. Ganendra Mohan Tagore I. A.47 their Lordships, while considering the question of the validity of a bequest by a Hindu to an unborn person, referred to the position of an adopted son and said at p. 67:

Such child may be provided for as a person whom the law recognises as in existence at the death of the testator, or to whom, by way of exception, not by way of rule, it gives the capacity of inheriting or otherwise taking from the testator, as if he had existed at the time of the testator''s death having been actually begotten by him. Apart from this exceptional case, which serves to prove the , rule, the law is plain that the done must be a person in existence capable of taking at the time when the gift takes effect.

It is, therefore, clear that the case of an adopted son is an exception to the general rule. An exception should not be extended so as to supersede the general rule itself. The case in Bhubaneswari Debi v. Nilcomul Lahiri 12 Cal. 18 is an illustration of the general rule, while AIR 1933 155 (Privy Council) , AIR 1935 95 (Privy Council) , Madana Mohana v. Purushotthama Banga Bheema Deo AIR 1918 P. C. 74 and Pratap Singh Shivsing, v. Shri Shri Agarsingji Baisingji AIR 1918 P.C. 192 are illustrations of the exception. The shebaitship was no doubt held by Ram Sumran, but as he had a life interest, it could, not be said to be his property which would be inherited by the plaintiff. Succession to the shebaitship having already opened out on Ram Sumran''s death and passed to the defendants as heirs of the founder Mt. Jayanti Kumri, the plaintiff on the strength of his subsequent adoption cannot divest the defendants and succeed to the shebaitship. Of course, if he had been adopted during Ram Sumran''s lifetime, he along with the defendants would have equally inherited the . shebaitship. Mr. Das also raises- a new contention, namely; that Ram Sumran was one of the founders, and, therefore, the plaintiff as his adopted son and heir would succeed to the shebaitship. In the plaint, para. 8, it is distinctly stated that Mt. Jayanti Kumri

out of deference to the wishes of her revered husband and in consultation with and with the express consent of her husband''s reversioners then living," namely, Babu Brahmadeva Prosad and Babu Ram Sumran Prosad and Babu Jagatdhar Narain, "executed a deed of endowment on 6th December 1906 whereby she dedicated properties in Soh. 1 of the plaint for the seva puja of Sri Sri Thakurjee Radha Kirshna Gopal Lalji.

Then in para. 9 it is stated that on 12th September 1912 Mt. Jayanti Kumri

executed another deed of endowment in favour of the said Thakurjee dedicating some of her other properties mentioned in Sch. 2 of the plaint, and the two reversioners then living Babu Ram Sumran Prosad and Babu Jagatdhar Narayan Prosad consented to the said alienation and also joined with her as co-executants in the said deed.

The trial in the Court below also proceeded on the footing that Mt. Jayanti Kumri was the founder of the endowment. Mr: Das attempts to build his argument on the following passage in para. 7 of the first deed of endowment Ex. 39: "we the declarants have dedicated the properties specified and detailed in Sch. l" and on a similar passage in para. 5 of the second deed Ex. 39 (a). But in the earlier portion of para. 7 in Ex. 39 it is recited that

I declarant No. 1 consulted declarants Nos, 2 to 4 and took their advice in respect of the above matter and requested them to join in the execution of this wakf deed As this deed is veryu good,. necessary and proper and as this will bring good reward to me declarant No. 1 and my deceased husband in the next world .... we declarants Nos. 2 to 4 have, for preserving and protecting the wakf of the said properties perpetually for ever as well as incompliance with the wishes and request of declarant No. l, joined in the execution of this wakf of our own accord and free will.

The deed at the outset recites that there w.as a partition between Mt. Jayanti Kumri''s husband Banarsi Prasad and his three brothers-under a deed dated 23rd November 1887 and that her husband shortly before his death which took place at Benares expressed his desire and gave a direction to Jayanti Kumri to build a temple of Sri Sri Radha Krishna and dedicate sufficient properties for their seva puja. The deed then proceeds to state that in accordance with the direction of her deceased husband, the lady built a temple near her house and installed the images of Sri Sri Radha Krishnaji and that in compliance with, the wishes of her husband and for the welfare of his soul and for the seva puja of the deities, it was necessary to dedicate some immovable properties to the deities. Then follow the other recitals in para. 7 which I have already quoted. Beading the whole document, there cannot be any shadow of doubt that Mt. Jayanti Kumri was the founder of the endowment. As the properties which were going to be dedicated were held by her as a widow''s estate, she executed the deed of endowment with the consent of her husband''s reversioners. They had no present interest in the properties and they merely joined in the execution of the deeds by way of giving consent. The recital that "we the declarants have dedicated the properties" was used apparently to make the deed binding on the reversioners.

Mr. Das argues that the defendants must be bound by the recitals in the deed, because they claim under it and they cannot be heard to say that Ram Sumran was not one of the founders. But, in the first place, the question is really one of construction of the deeds, and not whether their recitals create any estoppel. In the next place, the plaintiff in view of the admitted case in the plaint cannot possibly''raise any question of estoppel. Mr. Das further argues that the effect of the reversioners joining with the widow as executants must be taken to be that there was a transfer of the properties by the widow in favour of the reversioners followed by a dedication by the latter to the deittes. In support of this contention he relies on the Full Bench decision of the Calcutta High Court in Nobo Kishore Sarma Roy v. Hari Nath Sarma Roy 10 Cal. 1102. But the ques-tion for decision in that case was whether

a transfer or conveyance by a widow upon the ostensible ground of legal necessity, such transfer being assented to by the person who at the time is the next reversioner, will conclude another person not a party thereto who is the actual reversioner upon the death of the widow from asserting his title to the property.

This question was answered in the affirmative. The learned Chief Justice Sir Richard Garth in his judgment observed:

But, if it is once established, as a matter of law, that a widow may relinquish her estate in favour of her husband''s heir for the time being, it seems impossible to prevent any alienation, which the widow and the next heir may thus agree to make.

He seems to have considered that the position was as if

conveyance by the widow, with the consent only of the next reversionary heir, is equivalent to a relinquishment by the widow in favour 6f such an heir, or a conveyance by them both to some third person.

It is difficult to understand how this principle can be applied to the present case. Here there is no question as to whether the trans-action is binding on the actual reversioners. The contention that Ram Sumran was one of the founders must, therefore, be rejected.

It is necessary to consider one other point which has been raised by Sir Manmatha Nath Mukherji. He contends that assuming that Ram Sumran had an absolute estate in the shebaitship, he disposed of it in favour of his widow Sabitri Devi by his will of which she obtained probate Ex. 18. The plaintiff, therefore, cannot claim as an heir to Ram Sumran. Reliance is placed of Mancharam v. Paranshankar 6 Bom. 298 but this decision was dissented from by the Calcutta High Court in Rajeshwar Mullick v. Gopeshwar Mullick 85 Cal. 226 in which it was held that a shebait has no right to alienate his office by will. It is well settled that she-baiti right is not alienable in the absence of any custom or usage: see Rajah Vurmah Valia v. Ravi Vurmah Mutha 1 Mad. 235 and Ghanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271. These cases no doubt relate to alienations inter vivos, but there is no reason why the principle will not apply to alienations by will. Of course, a shebait may, if authorised by the deed of endowment or by usage, appoint a successor by will. Sir Manmatha Nath Mukherji also relies on 12 Pat. 35944 in which the following passage occurs at page 419:

Coming to the question of the shebaitship of the trust created by Ugrah Mohan Thakur himself, the trust deed is before us. There the provision is that the shebaitship would go to his heir (waris). The word ''waris'' need not necessarily mean an heir entitled to succeed in case of intestacy. In case the deceased had power to dispose of his properties by will and he does so in fact, he nominates the person who is to succeed to his properties.

Here the learned Judges were obviously con sidering the terms of the trust deed itself. This case, therefore, does not really support the contention. In the result I would allow the appeal and dismiss the suit. In the cir cumstances parties will bear their own costs.

Meredith, J.

This is an appeal by defen dants from a decision of the learned Subordi nate Judge of Monghyr, dated 29th July 1937. The suit relates to an endowment and temple in village Singhaul situated in Begusarai Sub-Division of the District of Monghyr, and has been decreed by the learned Subordinate Judge swith costs.

The following genealogy, taken from the judgment of the learned Subordinate Judge, is necessary to an understanding of the cases of the parties:

HIRDAY NARAYAN _____________________________________|_______________________________ | | | | | Sheonandan Lal Madan Braj Mohan Lal Krishna Mohan Benarsi Prasad (died (predeceased his Mohan died without any Lal (died in in 1304, leaving be father without Lal issue, leaving a 1308 Fasli) hind him his widow- leavingany issue) | widow Mt. Shyam | Mt. Jayanti Kumri Kumri | Jagatdhar Narayan and a daughter and _________|__________________ (died in 1920, married a son. The daughter | | Srimati Debi) and son predeceased Bramhadeva R.(B. Bamsumran Prasad | Mt. Jayanti. Mt. Prasad (died (died on 8-12-1924, leaving | Jayanti died in 1916). in 1908 without behind him a widow | any issue) Mt. Srimati Sabitri Debi) | _________________________________|_________________________ | | | Chandra Chur Deva Chandra Mauli Deva Chandra Bhushan Deva (defendant .1) (defendant 2) (defendant 3). 103. The four sons of Babu Hirday Narayan who survived him, separated by mutual agreement, under an ekrarnama, dated 23rd November 1887 and came into separate possession of the large ancestral properties of the family in four equal shares. On the death of one of the brothers, Banarsi Prasad, in the year 1897, his property came into possession of his widow, Mt. Jayanti Kumri. This lady executed in succession two deeds of endowment, one on 6th December 1906, and the other on 12th September 1912, in respect of the property forming the subject-matterlof this suit. The first deed .was executed with the consent of the reversioners then living, namely, Bramhadeva Prasad and Ramsumran Prasad, the two sons of Madan Mohan Lal, and Jagat-dhar Narayan, son of Krishna Mohan Lal. These three reversioners all joined as co-executants of the deed of endowment. When the second deed was executed in 1912 endowing further properties, Bramhadeva Prasad was dead, but the other two, Ramsumran Prasad and Jagatdhar Narayan, joined in the execution of this deed. Under the terms of the deed of 1906 (EX. 39) Mt. Jayanti Kumri was to be sebait during her lifetime. On her death, the survivors of the co-executants and the male heirs of those who might have died were to become the sebaits. The deed proceeds:

Subsequently on the death of any sebait, his male heir or heirs will one after another be sebaits in his place.

Then follow the usual provisions regarding the duties of the sebaits and a provision that the sebaits should not have at any time and under any circumstances any right to appropriate or waste any portion of the income of the endowment or alienate any of its properties. Jayanti Kumri died in 1916, leaving no surviving issue, and as Bramhadeva Prasad had also died issueless, Jagatdhar Narayan and Ramsumran Prasad became eo-shebaits. Jagatdhar Narayan in turn died in 1920, and thereupon his three minor sons, Chandra Chur Deva, Chandra Mauli Deva and Chandra Bhushan Deva, the three defendants in this suit, under the guardianship of their mother, Srimati Debi, got themselves recorded in their father''s place in the Land Registration Department as co-shebaits along with Rai Bahadur Ramsumran Prasad.

The latter died on 8th December 1924, leaving no issue, but before his death he had executed a will, leaving his property mainly to his widow, Mt. Sabitri. Devi, and authorising her to adopt a son to him. Probate of this will was granted to Sabitri Devi on 23rd December 1925, after contest by the defendants.

Subsequently, according to the plaintiff''s case, on 13th May 1928, Sabitri Devi adopted a son to her deceased husband in the person of a boy named Bhanu Pratap, the son of her brother. He was adopted under the name of Bibhuti Bhushan. This boy is the plaintiff in the case. After his adoption, he applied through his adoptive mother, on 30th July 1928, for mutation of his name in the Land Registration Department as a co-shebait in place of that of his adoptive father. The defendants, however, opposed the application, and the Land Registration Department rejected the application and referred the plaintiff to the civil Court. Thereafter the present suit was brought on 23rd June 1934, the plain-'' tiff praying for a decree for joint possession and participation in the management of the endowed properties as a co-shebait along with the defendants after declaration of his title.

Before the learned Subordinate Judge the factum of adoption was challenged, but that adoption did take place is now conceded The defendants further challenged the legality of the adoption, on the ground that this Agarwala family of Ulao was governed by the Mithila School of Hindu law under which adoption by a widow is impossible even with the consent of her husband. It was contended moreover that in any case there was a custom in the family forbidding adoption by widows. Finally it was urged that even if the adoption of the plaintiff must be regarded as valid, he was not entitled to succeed. The entire property having vested in the defendants in 1924, and the plaintiff having been adopted only in 1928, he could not legally divest the defendants.

The learned Subordinate Judge held upon the evidence that the family was governed by the Mitakshara (Benares) School of Hindu law, the family being admittedly migrants into Mithila at some time in the past from a non-Mithila area somewhere in north or northwest India where the Mitakshara School of law prevailed. The onus, in his opinion, lay upon the defendants to establish that the family had renounced its personal law, and adopted the law of Mithila. That onus, he held, had not been discharged. Nor in his view had the alleged family custom forbidding adoption been established. The adoption was, therefore, valid.

On the question of the plaintiff''s right to succeed as a son of Ramsumran Prasad legally adopted he held that the terms of the deeds of endowment relating to the succession to the shebaitship were invalid, because they laid down a rule of succession contrary to Hindu law. Under the terms of the deed Rai Bahadur Ramsumran Prasad, in his opinion, got only a life interest in the office of shebait. He held that the plaintiff must be deemed to have been a son of Ramsumran Prasad from the time of his death. Consequently he was entitled to divest the defendants of the interest in the office of shebait which was previously enjoyed by Ramsumran Prasad, because as, adopted son he too became an heir of the founder of the endowment, and on the death of Ramsumran Prasad the succession to the office of shebait, which he occupied, failed and the shebaitship reverted to the heirs of the founder of the trust.

For the appellants it has been argued, in the first place, that the adoption of the plaintiff was not valid, as necessary Vedic mantras were not recited at the time of giving and taking; secondly, that the adoption by the widow was in any case invalid as the family is governed by Mithila law; thirdly, there is a custom in this family forbidding adoption, and, lastly, that even if duly adopted the plaintiff is not entitled to succeed by divesting the defendants. I shall deal with each of these points in turn.

.There is, in my judgment, no substance in the first contention. The argument is founded upon certain passages in the Dattaka Mimamsa of Nanda Pandit, which is admittedly a work of great authority on the subject of adoption : see Collector of Madura v. Moottoo Bamalinga Sathupttthy 12 M. I. A. 397 where their Lordships of the Privy Council observed that it was a work which, according to Sir William Macnagh-ten was respected all over India and an infallible guide in the provinces of Mithila and Benares. Placitum 13 of Section 5 (Setlur, "Hindu Law Books on Inheritance", 1911 Edn., p. 393) says that:

The giver, being capable of the gift, (should give) to him, with the recitation of the five prayers, the initial words, of the first of which, are-ye-yajn''yena, etc.

Placitum 15 says:

Having taken him by both hands, with the recitation of the prayer, commencing,-devasyatwa, etc.; having inaudibly repeated the mystical invocation ''Angadangal etc.''; having kissed the forehead of the child : having adorned with clothes, and so forth, the boy, bearing the reflection of a son.

Hence it is argued that if these recitations are not made during the giving and taking, the adoption is not valid.

In the first place, however, it is impossible to hold on the evidence that no recitations were made. The Karmakandi, plaintiff''s witness 26, (p. 89) states that the giving and taking was performed with Sastric rites. The Achar-jya, plaintiff''s witness 27, (p. 91) also says that the offer and acceptance was made in accordance with the Sastric rites. Neither of these witnesses was cross-examined at all on these statements, or asked what these rites were. The adoptive mother herself, plaintiff''s witness l, (p. 38), also stated that the offer and acceptance was made with observance of the religious rites enjoined by the Shastras. She also was not cross-examined at all on these points, nor asked what prayers were recited. Stress has been laid on the fact that the boy''s father, Srinath Shah, plaintiff''s witness 19, (p. 73), only said that the giving and taking was done according to the rules of the Shastra. He said in cross-examination ;

Worship of the gods and sankalp were performed before the actual giving and taking in adoption. I did not perform any other rite.

It must be remembered, however, that this was the statement of a layman, made eight years after the ceremony. Speaking from memory eight years after the ceremony he could hardly have been expected to remember after that interval all details of the long and complicated ceremony.

The Karmakandi (P. W. 26) gives a list of no less than twenty-two different rites which were performed at the time of adoption, of which the giving and taking of the boy according to Sastric rites figures as item 18.

It is manifest that in making the adoption the lady was most careful to take every precaution to see that the ceremony was correctly performed so as to avoid the possibility of subsequent challenge. Pandits were got ,down specially from Benares. Photographs were taken of the details of the ceremony. In these circumstances it is improbable in the extreme that any essential part of the adoption ceremony would be omitted, in the presence of the learned Pandits from Benares. When these experts and the adoptive mother all say that the necessary Sastric rites were performed at the time of giving and taking, and there was no cross-examination of any of these witnesses upon the point, it is impossible to hold that any essential rites were not performed. If the priest and the Acharjya are believed, that is enough, and I can find no reason for not believing them.

In this view of the matter it becomes unnecessary to decide definitely whether the recitation of Shastric mantras is an essential part of the ceremony of giving and taking. Mr. P. R. Das for the respondent strongly urged that no such recitation is necessary. He points out that in the Dattaka Mimamsa, Nanda Pandit considers in turn three authorities with regard to the ceremonies necessary. They are Saunaka, who is dealt with from placitum 2 to placitum 15 of Section 5, Vasishtha who is dealt with in placitum 81, and Baudhayana who is dealt with in placitum 42. We are not concerned with Baudhayana, because he is regarded as authoritative only in Southern India. It is Saunaka who prescribes the recitations I have already referred to, but Nanda Pandit never says that Vasishtha has also prescribed these recitations. In placitum 50 Nanda Pandit says:

Therefore, the filial relation proceeds from adoption only, with observance of the form of either yasishtha; or Saunaka; not otherwise.

It appears, therefore, that according to the Dattaka Mimamsa the adoption is legal if either the ceremonies prescribed by Vasishtha or those prescribed by Saunaka are performed. Finally, points out Mr. Das, in placitum 56 where the whole matter is summed up, Nanda Pandit says:

It is therefore established, that the filial relation of adopted sons, is occasioned only, by the (proper) ceremonies, of gift, acceptance a burnt sacrifice, and so forth; should either be wanting, the filial relation even fails.

There is nothing here about any recitation of mantras as part of the offer and acceptance.

As I have said, it is unnecessary in view of the finding of fact arrived at to come to any judicial decision upon this point. I may, however, express my personal view which is that the recital of mantras during the giving and taking has not been shown to be necessary to the validity of the adoption. Even if enjoined that seems to be as a pious obligation merely, and not as to essential feature of the ceremony necessary to give it legality; nor has the learned advocate for the appellants been able to point to any judicial decision where a contrary view has been taken.

I turn now to the second point, the question of the School of Law by which this family is governed. Certain facts are admitted. It is agreed on both sides that Ulao, the present home of this family of Agarwalas, is within Mithila, the traditional boundaries of which are, on the north the Nepal border, on the south the Ganges, on the east the river Kosi, and on the west the river Gandak. It is further agreed that at some time in the distant past the family migrated from an area outside Mithila in northern or north-western India. Beyond this, there is no precise evidence with regard to the history of the family. There is some evidence, which there seems to be no reason for doubting, that before settling in Ulao the family lived in Begusarai, and before that perhaps for two or three hundred years in Ballia, both these areas also being within Mithila. Beyond that, however, there is nothing upon which any Court could base any definite finding. There are vague statements by various witnesses that the family came originally from Agroha, traditionally situated to the west of Delhi, but those statements seem to be based merely on the tradition that Agroha was the original home of all the Agarwalas. There are vague statements of some witnesses that the migration took place 2000 years ago or more. The attention of the Court was drawn to Rev. M. S. Sherr. ing''s book, "Hindu Tribes and Castes, as represented in Benares," vol. 1, p. 286, where reference is made to the tradition according to which the Agarwalas migrated from Agroha during the strugglejbetween the Buddhists and the Hindus. According to this tradition the migration might have taken place as far back as the 5th century A. D., but Sherring also refers to the opinion of Sir Henry Elliot that the Agarwalas migrated from Agroha to all parts of India after the capture of that place towards the close of the twelfth century by Shahabuddin Ghori. This would make the migration much later. All this, however, as I have said, is much too vague to form the basis of any definite judicial finding. Moreover, there is no evidence that this family came with the main migration. It is not possible, therefore, to say more than that the family certainly came into Mithila from outside some hundreds of years ago.

A large number of witnesses have been examined on the plaintiff''s side to say that the family has kept its personal law and is consequently governed by the Benares School of Mitakshara law which prevails in northern and north-western India, and an equally large number of witnesses have been examined on the defendants'' Side to say that the family has renounced its personal law, and adopted the law and customs of Mithila. Such statements are easy to make and mean very little, because most of the witnesses who make them are not aware what the differences are between the two schools, these differences being in fact few and, except for the inability of a widow to adopt in Mithila, of little significance. There are certain differences in the rites and ceremonies connected with death and observed at marriages, and here again much evidence has been led on both sides to show that the family observances are those of the one school or the other. It appears that according to the Benare''s School the head is shaved at the time of cremation as well as at the time of sradh, that there are differences with regard to the number of pindas offered at the time of cremation, and there are differences of custom as regards the attendance of female relations at the burning ghat. Then with regard to marriages, there appear to be some minor differences in the ceremonies, for example, with regard to bachan (the mutual exchange of promises between the bride and the bridegroom at the time of marriage). On these points the learned Subordinate Judge has come to the following findings: That as regards the custom of shaving at the time of cremation the family follows the local practice, and not that of Benares; that the evidence with regard to the attendance of females at the burning ghat is indefinite,,,that with regard to the offering of pindas or the cremation day the balance of the evidence is in favour of the view that the family follows the Mithila custom of offering only one pinda; that the evidence with regard to the calculation of the period of impurity and the performance of the asthisancayan sradh is too indefinite to justify any finding; that as regards the mutual exchange of promises at marriage it seems to have been shown that the family follows the Benares School.

With regard to this evidence as a whole the finding of the learned Subordinate Judge is that it cannot lead to any definite conclusion as to whether the family is governed by the Mithila School of law or by the Benares School. I do not propose to examine all this evidence in detail, as no useful purpose would be served. It will suffice to say that the finding of the learned Subordinate Judge is indubitably correct. No doubt, the family has adopted some, though apparently not all, of the local customs. That, however, is inevitable where the family has been living amongst the people of Mithila for hundreds of years. Most of these points of difference are as regards ceremonial details, which are merely a matter of custom and not a matter of law at all in the sense that they are essential features affecting the legality or otherwise of the ceremony to which they are appurtenances. Taking the marriage ceremonies, for example, the different details regarding which evidence has been given appear to be no more essential to the legality of the marriage than, for example, the throwing of rice is to the legality of a Christian marriage. As I have said, it is inevitable that the family will in course of time pick up some of the local usages, but numbers of these might be picked up by the family without any renunciation of its personal law with regard to inheritance.

It is true, if it can be shown that with regard to vital Sastrie rites the family has | adopted the local practice a presumption will follow that it has also adopted the local law of inheritance, and it is true that it has been shown that in the matter of shaving at the cremation and offering of pindas at the cremation the family does follow the local practice. Even in the case of these ceremonies, however, it has not, in my view, been proved that they are of so vital a character as to involve a renunciation of the personal law. They do not appear to be as important as the subsequent sradh observances. Mr. L. K. Jha for the appellants has argued that if it can be shown that a migratory family has adopted some of the local practices, that in itself would justify a finding that it has adopted all. This contention appears to me, however, plainly incorrect, and the ruling relied on for his argument by Mr. Jha, namely, Rajchunder Naram Chowdhry v. Goculchand Goh l Sel. Rep. 57 does not really lay down any such rule. That was a case where a family, which had migrated from Mithila into Bengal many generations before, had not uniformly observed the religious ordinances of Mithila, and, most important of all, had on nurlierous occasions inter-married with Bengal women and upon a consideration of all the circumstances the Court held upon the facts of that case that the family was governed by the law of Bengal.

The learned Subordinate Judge has considered evidence upon certain other matters, which might be regarded as indicative of the School of Law of the family, but here again his finding is that the evidence is inconclusive, and that finding is, in my opinion, quite correct. Some of this evidence points one way and some the other. On the question of family priests it appears that the family commonly employs Maithil Brahmans. This, however, is not surprising and, in my opinion, not conclusive. It seems that these Agarwalas take work from Maithil Brahmans for the sake of convenience, because other Brahmans able to discharge the functions of a priest are not available in the locality. Defendants'' witness 34 admits that at Ulao and Begusarai there is no other Brahman except Maithil Brahmans who can get religious ceremonies performed. Indeed it seems to be the case that some of the Agarwalas, residing outside the confines of Mithila, where there is no question of adopting the Mithila School of Law, may for the sake of convenience employ Maithil Brahmans. Thus, for example, defendants'' witness 10, who lives in Bhagalpur town that is south of the Ganges, states that one Chakradhar Jha is his priest, and, though this witness says that he does not know if this Jha is a Maithil Brahman, in view of his name it is unlikely that he is anything else. These Maithil Brahmans apparently do not object to performing puja according to Benares paddhati (ritual). Thus, plaintiff''s witness 35, Kameshwar Misra, a Maithil Brahman, who has officiated as a priest in the family of Rai Bahadur Ram-sumran Prasad, states that he always officiated as priest in that family, and in other Agar-wala families of Ulao, according to the Benares paddhati; and the plaintiff''s witness Savitri Devi herself states that her priest Bameshwar Dutta (who is probably the same person as Bameshwar Misra) performs pujapat for her according to the Benares patra. It seems, moreover, that one Dukhia Misser, a Gour Brahman, worked as a priest in the family as long as he lived : see the evidence of plaintiff''s witness 86.

A circumstance relied upon by the plaintiff is that defendant 3, Chandra Bhushan Deva, was married in Baisakh 1348 Fasli. Much evidence was led on both sides to establish that this was or was not an inauspicious date according to the Mithila almanac, though favourable for marriage according to the Benares almanac. Here again, however, in my opinion, the evidence is inconclusive. It has not been definitely proved that defendant 3 was married on a date which was inauspicious according to the Mithila School. It was sought to be established for the plaintiff that at the time in question the planet Jupiter was in retrograde motion, and that in Mithila when Jupiter is in retrograde motion, marriages cannot take place. The fact is, however, that the Mithila almanac (EX. 25-a) does not show the entire month of Baisakh 1343 as asuddha (inauspicious). It is only from 13th of April that the inauspicious period is shown to begin, and from the 9th to the 13th is shown as . suddha (auspicious). The evidence, to my mind, is not very satisfactory as to the particular portion of Baisakh in which the marriage took place, though there is one statement (by defendants'' witness 1) that the marriage took place near purnamasi in the month of Baisakh, purnamasi being the 6th of May. The probability, therefore, is that this marriage did not take place between 9th and 13th of April; but the position is still doubtful, as the defendants examined astrologers to say that the retrograde motion of Jupiter could be neglected when Jupiter was "in his own house." It is not clear from the evidence, however, whether the reckoning for this purpose is not to be made from the natal constellations of the bride and the bridegroom ; that is to say, that the question of auspiciousness or inauspiciousness is to be decided by Jupiter''s position calculated from the natal constellation according to the parties'' horoscope. In my opinion it is also not clear upon the evidence whether the prohibition referred to will affect marriages if performed outside the Mithila area. Defendant 3''s marriage was performed at Etawah outside Mithila. Plaintiff''s witness 35 stated in his cross-examination that the question of Jupiter''s retrograde motion is only considered where the marriage is celebrated within Mithila, though it is true that he modified that statement in re-examination.

There is one piece of evidence to which, in my view, considerable weight must be attached. In the year 1912 the plaintiff''s father, Rai Bahadur Ramsumran Prasad, and the defendants'' father, Jagatdhar Narayan, jointly instituted a suit against Mt. Shyam Kumri, widow of their uncle Braj Mehan Lal (vide Ex. 13, -certified copy of the plaint of Title Suit No. 277 of 1912 in the Court of the Subordinate Judge of Darbhanga). One of the important issues in that case was whether the family was governed by the Mithila School of law or the Benares School because under Mithila law a widow would have an absolute right of disposal of her husband''s moveables, whereas under Benares law she would not. The plaintiffs pleaded in the plaint (Ex. 13) that their family was governed by the Benares School of Hindu law. The Musammat, on the other hand, contended that the family was governed by Mithila law. The finding, a finding which was not upset though the case went up to the Privy Council, was that the family was governed by the Benares School of law. There has been much argument on the question as to whether the judgment and the appellate judgments in this case (EXS. 24-e, 24-d and 24-e) are or are not admissible in evidence. It is, to my mind, unnecessary to decide that question because these judgments do not take the matter any further than the plaint. There is no question of res judicata or of a finding which is binding on this, Court in any way. The judgments, if they can come in at all, can come in only to establish that the assertion that they were governed by Benares law was actually made by the plaintiff''s father and the defendants'' father. That fact is proved independently by the plaint (Ex. 13). There is no question as to the admissibility of this plaint. The statements in the plaint are proved by P. W. 21, the karpardaz, Brajrangi Sahay, who states that Rai Bahadur Ramsumran Prasad and Jagatdhar Prasad verified and signed the plaint in his presence. Having been proved, the statements in the plaint are undoubtedly relevant u/s 13, Evidence Act. The importance of these assertions of the rights and custom of the family lies in the fact that Rai Bahadur Ramsumran Prasad, the plaintiff''s father, was a man of high position and education from whom irresponsible statements would not be expected.

Another circumstance noted by the learned: Subordinate Judge has also, in my view, a very important bearing on the question. It is this, that the adoption ceremony was performed with the utmost publicity. It was attended by large numbers of agnates and castemen of the family, yet there was not a word of protest or objection from anyone. Those attending and giving presents included Rai Bahadur Kharag Narayan, a relative of the family living in Begusarai, who, is a man of position and responsibility and an Honorary Magistrate. The defendants themselves were not present at the adoption, but all three were present at the ear-piercing ceremony of the boy, which took place later. All these facts could not be denied, as photographs were taken at both ceremonies showing the prominent persons who assembled. The fact that the defendants took part in the ear-piercing ceremony cannot, to my mind, be explained away merely by saying, as they have, that there was some talk of compromise at the time.

It is very difficult to believe that if widow adoption in this family was barred either by law or custom and an unheard of thing, the agnates of the family would have attended and taken part without any protest. No doubt, this evidence is not conclusive with regard to the law of the family, but it is to my mind, conclusive with regard to the existence of a custom prohibiting adoption ih the family, a matter to which I shall revert later.

What then does all, this evidence amount to? That in certain particulars the family probably follows Benares customs, in other matters local usages are followed. None of these departures have, however, been shown to be of so vital a character as in themselves to involve a finding that the family has renounced its personal law. On the other hand, there are several circumstances which seem to indicate that the family still regards itself as governed by the Benares School of Mitak-shara law. It may be no doubt that,1 as it was neatly put in Ootum Chunder Bhutta-charjee v. Obhoy Chum Misser (Special Number Weekly Reporter, July (1862) W. B. Sp. 67 , this is a case where the family, like others, commonly uses the local customs for every day purposes, and produces its personal law for its law suits. But however that may be, there is no conclusive evidence to show that in vital matters the personal law has ever been renounced. The case just cited is authority for the proposition that proof of petty departures from the strict ceremonial law of Benares would amount to no proof of adoption of the law of Mithila. In short, I am in complete agreement with the view of the learned Subordinate Judge that the evidence as a whole-does not justify a positive finding , either that the family is governed by the law of Mithila, or that it is governed by the law of Benares.

The evidence on both sides being inconclusive upon the point, the question of onus becomes of vital importance. The initial presumption is always, of course, that a family is subject to the lex loci. Once, however, it is shown that the family has migrated from a place where the law is different, the onus shifts, and it is then presumed, until the contrary is shown that the family has taken with it its personal law. To quote once more from the ruling cited above:

A Hindu migrating from one province to another and acquiring property in the territory where he settles, must be presumed, until the contrary be proved, to carry with him and retain all his religious ceremonies and customs, and consequently his law of succession.

Here an ingenious argument has been advanced for the appellants by Mr. Jha. He contends that there, is a double initial onus on the plaintiff; that he must prove not only that the family migrated from outside Mithila, but migrated after the Mithila School had come into existence. If the migration was before the emergence of the Mithila School, he argues, then there is no presumption that the family kept its personal law, because a family living in a place while the law of that place grows and develops will naturally conform to that growth and development.

It is, to my mind, by no means obvious that a Hindu family would behave in that way, having regard to the well-known tenacity with which Hindus hold on to their family law. Mr. Jha cites only one authority in support of his proposition, namely, Pitambar Chandra Saha v. Nishi Kanta Saha A. I. R. 1920 Cal. 335 where in the case of a family migrating from Bihar into Bengal it. was observed that it was necessary to establish not only that the family migrated from Bihar but that the migration took place after the foundation of the Bengal School of Hindu law by the author of the Dayabhaga.

There was this observation, but it did not form the ratio decidendi, and this case has been commented upon by the same High Court later. In Ramesh Chandra Sinha Vs. Md. Elahi Buksh, , where it was held that proof of origin of the family and practice continued after emigration is sufficient, their Lordships referred to Pitambar Chandra Saha v. Nishi Kanta Saha, A. I. R. 1920 Cal. 335 and observed:

If that case really lays down that, for a family residing in Bengal to show that it is governed by the Mitakshara School of law, it must prove immigra tion and immigration since the establishment of the Dayabhaga system and the continued practice of Mitakshara customs, it lays a very heavy onus upon the party making the claim However, it ap pears to me, on a correct reading of the case that the learned Judges did not lay down that this item 3 of proof must be given.

Moreover, in Sarada Prasanna Boy v. Uma- hanta Hazari AIR 1923 Cal. 485 Sir Asutosh Mookerjee, one of the learned Judges who decided Pitambar Chandra Saha v. Nishi Kanta Saha A. I. R. 1920 Cal. 335 laid down the correct proposition, namely, that where a Hindu family migrates from one province to another, the presumption is that it carries with it the laws and customs as to succession and family relations prevailing in the province from which it came; but this presumption may be rebutted by proof that the family has adopted the law and usages of the place to which it has migrated. The Hindu law is not a merely local law, but is essentially personal law, an integral factor of the status of every family which is governed by it In Parbati Kumari Debi v. Jagadis Chunder Dhabal 29 I. A. 82 the Privy Council in applying the usual presumption did not qualify it by drawing any distinction between migration before the foundation of the Daya- bhaga law or after it.

In Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59 also their Lordships made no such distinction in determining the question of onus. They laid down that the particular doctrines of Hindu law recognized in the provinces of India become part of the status of every family governed by them and continue to govern the family upon migration into a. province where a different doctrine prevails, unless there is proved renunciation of the ori. ginal law for that of the place migrated to. It is the doctrine existing at the'' time of migration which, subject to renunciation, continues to govern the migrated members.

In my opinion the contention of Mr. Jha that the presumption regarding personal law only arises where it is shown not only that there was migration but migration before the development of the. distinguishable features of the lex loci, is not a correct proposition.

Apart from that, however, the evidence in the present case would justify no finding that the migration was prior to the development of the Mithila doctrine regarding adoption. As I have already stated, the evidence regarding the date of migration from outside Mithila is vague in the extreme. There is also no evidence to show when the prohibition of adoption by the widow in Mithila came into effect. The Mithila point of view is expressed in the DattakaMimamsa, which as interpreted by the Privy Council in Collector of Madura v. M. R. Sathupathy (12 M. I. A. 397) forbids altogether adoption by a widow. The DattakaMimamsa seems to have been written in the seventeenth century, but it is impossible to hold from that fact that this doctrine only became the law of Mithila at that time, As their Lordships of the Privy Council have pointed out in Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59 such commentaries are only commentaries. They do not enact; they explain and are evidence of the congeries of customs which form the law. It follows that the custom may well have been in existence in Mithil afor a long period before Dattaka Mimamsa was written, and may well have been in existence before the Agarwalas of Ulao and Begusarai came .into those regions. Even had it been possible to show that the migration took place before the development of the distinguishing features of Mithila law, that would not, in my opinion, shift the onus, but whether it could shift it or not, the fact has not been established.

Mr. Jha has endeavoured to shake off the burden of proof in yet another manner. He points out that upon the question of the widow''s right to adopt the Mitakshara itself is silent. On the other hand, on the subject of adoption generally the Dattaka Mimamsa is regarded as of great authority all over northern India. Therefore, he argues, the Dattaka Mimamsa may be taken to have expressed the law prevailing all over the Mitakshara School at the time it was written, and the theory that a widow can adopt with her husband''s consent must be a later development, which took place subsequent to the migration of the family. The law of such a migratory family is the law which existed in the place whence it migrated at the time of the migration. The migration in the present case was hundreds of years ago and, therefore, must have taken place, argues Mr. Jha, when widow adoption was forbidden in the Mitakshara area generally.

The argument is, in my opinion, unsound. Undoubtedly in determining the personal law of a family of Hindu migrants we must ask; what was its law at the time of migration? The Privy Council in Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59 laid down that it is the doctrine existing at the time of migration which subject to renunciation continues to govern the migrated members. Their Lordships, however, further observed that decisions by the Courts after the migration, declaring what was the correct doctrine in the place migrated from, affect the migrated members, though not so customs which are incorporated into the law after the migration. Numerous decisions which declare the law of the Benares School declare it unequivocally as being that a widow can adopt if she has had her husband''s permission. Indeed in Bishwa Nath Singh v. Jugal Kishore A. I. R. 1923 P. C. 90 there is Privy Council authority for the proposition that the right of adoption if she hai the authority of her husband to adopt is a right which a Hindu widow of a sonless Hindu enjoys everywhere in India, except possibly in families governed by the law of the Mithila School. The decisions which lay down this law are declaratory decisions, and on the authority of Balwant Rao v. Baji Rao A. I. R. 1921 P. C. 59 we are entitled to turn to these subsequent decisions to ascertain what the law was at the time of migration, and we are not confined to an examination of the texts existing at the time.

Even, however, if we do confine ourselves to an examination of the texts existing at the time of the Dattaka Mimamsa, they do not show that the Dattaka Mimamsa must necessarily be taken as correctly expressing the law then existing upon that particular point. Great as its authority undoubtedly is, the Dattaka Mimamsa is not conclusive in every detail. The Viramitrodaya seems to have been more or less contemporaneous with the Dattaka Mimamsa, yet it takes a wholly different view of the existing law on the point, and goes so far as to state that a''.widow can adopt not only with the authority of her husband but even without it if she has the consent of the sapindas. It must, therefore, be taken that in this one particular according to the Benares School neither Nanda Pandit nor the author of Viramitrodaya accurately stated the law. It has subsequently been accurately stated in the decisions of the Courts, and there is nothing to show that the law of the Benares School as stated in those decisions is not the law, as it always was. Indeed the foundation for the particular doctrine in question dates back to the celebrated text of Vasishta: "Let a woman neither give nor receive a son except with her husband''s permission." Mr. Jha''s contention in this regard must fail, as it is impossible to hold that this family at the time of migration took with it anything different from what is now held to be the law of adoption prevalent in the Benares School of Mitakshara law.

The position, therefore, remains that the onus lay upon the defendants to establish that the family has adopted the Mithila law, and as the evidence is not conclusive upon the point the finding must be that that onus has not been discharged.

I come next to the question whether a special family custom forbidding adoption has been proved. This can be dealt with very briefly. Numerous witnesses on one side say that there is such a custom; numerous witnesses on the other say that no such custom exists. Such statements mean very little. What is, to my mind, almost conclusive upon the point is that all these agnates, who come forward to say that there is a custom against widow adoption in their family, yet attended this particular ceremony of widow adoption without the slightest objection or protest. There is more than that. The plea was not originally taken by the defendants in their written statement, and was only an after-thought put forward in a supplementary written statement. Finally, if there was such a custom, Rai Bahadur Ram Sumran Prasad in executing his will, in which he authorised his widow to adopt, flew right in the Face of the custom of his family. He would hardly be likely to do so in the absence of some strong compelling reason, but no such reason has been made out.

It is argued that no instance of any widow of the family ever having adopted has been brought forward. It must be remembered however that adoption by a widow with her husband''s previous consent will always be a rare occurrence, since if a childless Hindu desires an adoption he will generally make that adop. tion himself. However, plaintiff''s witness 53 mentions an instance of adoption by the widow of an Agarwala named Jai Lal at Darbhanga, and one of the defendants'' witnesses, Shibnath Prasad (D. W. 34), an Agarwala of Begusarai, mentions hearing of two instances of members of his family giving authority to their wives to adopt. I am decidedly of opinion that the existence of the alleged custom has not been established.

I now come to the last and most difficult point in this ease, whether the plaintiff as a validly adopted son of Ram Sumran Prasad can succeed to the sebaitship by divesting the defendants. It will be convenient to recall some dates. The first deed of endowment was in 1906, the second in 1912. Mt. Jayanti Kumri died in 1916. Jagatdhar died in 1920. The plaintiff was born in 1923. Ram Sumran died in 1924, and the plaintiff was adopted by the widow in 1928. The contentions of Sir Man-matha Nath Mukherji, who has argued this part of the case for the appellants may be summarised as follows:

There are only three ways in which the plaintiff might come in as shebait, namely,

(1) as heir of his father, Ram Sumran, either

(a) in respect of Ram Sumran''s share, or

(b). in respect of Jagatdhar''s share;

(2) under the terms of the deed; and

(3) as heir of the founder.

As regards (1) the plaintiff cannot succeed, as Ram Sumran had no heritable interest, but only an estate for life. As regards (2) the plaintiff cannot succeed, as the deed is invalid in so far as it purports to lay down a line of succession excluding females and so repugnant to the Hindu law of inheritance. As for (3), the plaintiff cannot succeed, because there has been HO reverter to the heirs of the founder, this only taking place when the line of shebaits has completely failed. Secondly, if there has been any reverter in 1924, the plaintiff''s adoption cannot take retrospective effect back to 1924 so as to enable him to succeed as collateral heir of the founder by divesting the defendants.

It would follow from this line of argument that the defendants themselves could not have come in in 1920 either as heirs of their father, or as heirs of the founder, there being no reverter in 1920. But Sir Manmatha argues that defendant 1 at least came in under the second deed as an independent donee, since he was born in 1910 and so was alive in 1912 when the second deed of endowment was executed.

Mr. P. R. Das for the respondent has attempted to controvert all these propositions. He has argued that the plaintiff succeeds as heir of his father, since estates of inheritance were given by the deed. Ramsumran and Jagatdhar both took absolutetestates (that is to say, absolute save for the special limitations which are inherent in the nature of sebaitship). It is agreed that ian adoption will operate retrospectively so as to permit of an adopted son inheriting from his father even by divesting collaterals. The plaintiff, therefore, succeeds to. Ramsumran''s estate by divesting the defendants.

Even, however, if it be held that Ramsumran and Jagatdhar had only estates for life, stilj the plaintiff can succeed. Sebaitship is property. Co-sebaits do not hold generally with a right of survivorship, but as tenants-in-common. Reverter to the heirs of the founder, therefore, takes place on the death of one of the co-sebaits. In 1920 on the death of Jagatdhar there was reverter to the heirs of the founder. Jagafcdhar''s eight annas share then vested in Ramsumran as heir of the founder. The reversion and the life estate, therefore, became united in Ramsumran, who took an absolute estate. Therefore, the plaintiff is entitled to inherit the eight annas interest of Jagatdhar as heir of his father, Ramsumran. The defendants could not take in 1920 as independent donees, as the deed contemplated no separable independent gift, but merely purported to lay down what the founder regarded as a valid line of succession.

Even, however, if defendant 1 did take as an independent donee and Jagatdhar''s interest did not pass to Ramsumran, nevertheless the plaintiff can still succeed as heir of his father, because Jayanti Kumri was not the sole founder. Upon the terms of the deed Ramsumran and Jagatdhar were joint founders with her. There was in any case reverter to the heirs of the founder in 1924 when Ramsumran died. The plaintiff would then take as a. direct heir of his father''s interest as founder.

Lastly, Mr. Das argues that if all his other contentions fail, nevertheless on the authority of AIR 1933 155 (Privy Council) and Vijaysingji Chhatrasingji v. Shi-vasangji Bhimsangji 62 I.A. 161 the plaintiff can still succeed, since his adoption will date back for all purposes including collateral succession as well as lineal.

Upon these respective contentions the questions which arise for decisions are:

(1) Did Jagatdhar and Ramsumran take estates of inheritance or life estates ?

(2) In the case of co-sebaits, does reverter to the heirs of the founder take place upon the death of one sebait, or only when there is a complete failure of the line of sebaits ?

(3) Could the deed operate as an independent gift to any person other than those specifically named?

(4) Did Jayanti''s reversioners join in the deed merely as such, or were they co-founders with Jayanti ?

(5) Will adoption operate retrospectively so as to enable the adopted son to inherit collaterally by divesting collaterals?

I shall deal with each of these questions in turn.

(1) In deciding this question, most valuable guidance is to be found in the celebrated Tagore''s case I. A. sup. 4713 We get it from that case that in construing transfers by gift

a benignant construction is to be used; and if the real meaning of the document can be reasonably ascertained from the language used, though that language be ungrammatical or untechnical, or mistaken as to name or description, or in any other manner incorrect, provided it sufficiently indicates what was meant, that meaning shall be enforced to the extent and in the form which the law allows. Accordingly, if the gift confers an estate upon a man with words imperfectly describing the kind of inheritance, but showing that it was intended that he should have an estate of inheritance, the language will be read as conferring an estate inheritable as the law direots.

If an estate were given to a man simply without express words of inheritance, it would, in the absence of a conflicting context, carry by Hindu law an estate of inheritance. If there were added to such a gift an imperfect description of it as a gift of inheritance, not excluding the inheritance imposed by the law, an estate of inheritance would pass.

If, again, the gift were in terms of an estate inheritable according to law, with superadded words, restricting the power of transfer which the law annexes to that estate, the restriction would be. rejected, as being repugnant, or, rather, as being an attempt to take away the power of transfer which the law attaches to the estate which the giver has sufficiently shown his intention to create, though he adds a qualification which the law does not recognize.

If, on the other hand, the gift were to a man and his heirs, to be selected from a line other than that specified by law, expressly excluding the legal course of inheritance, as, for instance, if an estate were granted to a man and his eldest nephew, and the eldest nephew of such eldest nephew, and so forth for. ever to take as his heirs, to the exclusion of all other heirs, and without any of the persons so taking having the power to dispose of the estate during his lifetime; here, inasmuch as an inheritance so described is not legal, such a gift cannot take effect except in favour of such persons as could take under a gift to the extent to which the gift is consistent with the law. The first taker would, in this ease, take for his lifetime, because the giver had at least that intention. He could not take more, because the language is inconsistent with his having any different inheritance from that whioh the gift attempts to confer, and that estate of inheritance whioh it confers is void.

Mr. Das points out that it is nowhere ex-pressly stated in the documents with whioh we are concerned that the gift is for life only, nor are any of the legal heirs of Jagatdhar and Eanisumran excluded in express terms. The relevant passage in the deed runs as . follows:

During my life time I, declarant 1, myself shall remain the sebait... On the death of decla rant 1 we declarants 2 to 4, i. e., those remaining alive at the time of the death of declarant 1 as well as in case of the death of any one of us, his male heirs remaining alive a the time of the death of declarant 1 will in place of declarant 1 be and remain the sebaits... subsequently on the death of any sebait his male heir or heirs will one after another be sebaits in his place.

Apart from the use of the word "male," there is nothing, contends Mr. Das, to show that estates of inheritance were not contemplated. The words "male heirs" should merely be read as declaratory of the ordinary Hindu law of inheritance as understood by the founder just as the words putra pautradi krame may be used to indicate an estate of inheritance. The words "male heirs" were used not with the deliberate intention of excluding any heirs (or indeed to indicate any separate gift to any heirs), but merely to emphasise that the estate conveyed was an estate of inheritance. It is pointed out that in Tagore''s case13 there was an exclusion of certain heirs in express terms. In the present case the governing intention of the founder was to confer an estate of inheritance.

Mr. Das relies upon a Bombay case, Dada-blwy Framjee Cama v. Coiuasji Dorabji Panday A. I. R. 1923 Bom. 177 , which was approved by the Privy Council (see AIR 1925 306 (Privy Council) ). This was a case where a lady executed a deed of settlement for her only son for life and then "for his son and their male heirs absolutely in equal shares and proportions as tenants-in-common," and it was held that on the settlor''s son''s death his three sons took the trust properties absolutely in equal shares as tenants-in-common. That case, however, is not of much help in view of the use of the word "absolutely," which was held to show that the donee took an absolute estate. It was not the use of the words "male heirs," but the use of the word "absolutely" which formed the ratio decidendi.

There are of course in these deeds terms greatly restricting the rights and powers of the donees. They have to keep accounts, cannot alienate, and so on. These restrictions, however, cannot be taken as indicating an intention that there shall not be an estate of inheritance because they are limitations which are necessarily incidental to the estate of a sebait whether that sebait has a heritable interest or not. Mr. Das strongly relies upon Tripurari Pal v. Jagat Tarini Dasi 40 Cal. 274. In that case the will provided that the testator''s son, Makunda, would be sebait. It went on:

If during the minority of the said Makunda I die, then my second wife, Brajamati Dasi .... will be sebait as his guardian .... during minority, and Makunda, on attaining majority, will personally conduct, the work of the sheba. God forbid, if during my lifetime or after my death, the said Makunda dies, then the said Brajamati Dasi will be sebait and, after her death, Nistarini Dasi and Jagat Tarini Dasi, daughters born of the said Brajamati Dasi and of my loins, would be sebaits.

Makunda eventually died, leaving a widow and a minor son. Upon a claim by this minor son, the High Court held that Makunda had only a life interest, but the Privy Council construed the will as an absolute gift of the sebaitship to Makunda on his attaining majority, and held that it was not cut down, so far as they could see, by anything that followed. Presumably they construed the words "God forbid, if during my lifetime or after my death, the said Makunda dies" as mean-ing "dies issueless," and indeed since death is the inevitable end of us all the words "God forbid" and "if" would be out of place upon any other construction. Mr. Das also refers "to the case of Bhoobun Mohini Debya v. Hurrish Chunder Ghowdhry 4 Cal. 23. There a Hindu granted three villages to his sister in the following terms:

You are my sister: I accordingly grant you a talook for your support .... do you and the generations born of your womb successively enjoy the same. No other heir of yours shall have right or interest.

The Privy Council held that the donee took an absolute estate, and the expression "no other heir of yours shall have right or interest" merely made that estate defeasible in the event (which did not occur) of a failure of issue living at the time of his sister''s death.

Reliance is also placed upon Kandarpa Mohan Gossain Vs. Akhoy Chandra Bose and Another, . There there was a provision in the dedication that the sebaits should consist of the eldest male descendants of the donees, Mahen-dranath Chatterji and Harimohan Goswami,

provided always that every future sebait of the said deities shall have like power to nominate and appoint by deed or will his successor in office.

It was hold that there was an absolute gift in favour of Harimohan, and his son was entitled to succeed to the sebaitship as his heir. Their Lordships observed that where there is a gift not limited in any way but equally capable of being construed as a gift for life or an absolute gift, and it is followed by a general power of appointment and a gift over in default of appointment, the first gift should be treated as an absolute gift, unless the whole frame of the will suggests otherwise.

The main basis, for this decision, however, seems to have been the general power of appointment. Harimohan was competent, their Lordships said, under the terms of the deed to appoint, his successor. That being the position, "the deed cannot be read as providing for a gift over in favour of the plaintiff." Their Lordships also observed (p. 116):

While the word ''absolute'' itself, generally speak ing, is sufficient to create an absolute estate there may be oases in which it does not; and words of inherit ance also do not necessarily always confer such an estate. The question is always a question of inten tion to be gathered from the entire context taken together.

A case very much in point is Kumar Tarkeswar-Roy v. Kumar Soshi Shikhareswar 9 Cal. 952. A Hindu by will gave certain estates to his three nephews for payment of the expenses of their pious acts. The terms of the gift provided that the nephews would hold possession in equal shares. They would have no right of alienation; but they, their sons, grandsons, and other descendants in the male line should enjoy the estate and perform acts of piety for the welfare of the family ancestors. The deed went on:

If any of them die without leaving a male child (which God forbid) then his share shall devolve on the surviving nephews and their male descendants, and not on their heirs.

This was a case in many respects comparable with the present case, but it was held by the Privy Council that a life estate only was created in favour of the three nephews. The attempt to create an inheritance in their favour failed, since to exclude females from the succession was to exclude the legal course of inheritance. It is to be noted that it was the exclusion of the females that was held to be inconsistent with an intention to create an estate of inheritance. Their Lordships said:

to alter the words prescribing the course of succession, so as to admit females, would be in effect to make a new will for the testator, and one which, so far from carrying his intentions into effect, would be in direct opposition to his intention, and indeed to his main object.

It is also important to notice that their Lordships construed the provision that the gift was expressed as to be received for the defrayment of their pious acts and that alienation was forbidden, as indicative of an intention not to create an absolute estate. In the present case also the gift was for a specific pious purpose, and not primarily for the benefit of the donees, or any of their heirs.

Sreemutty Kristoromoney Dossee v. Maharajah Norendra Krishna Bahadoor 16 Cal. 383 is another case of gift to certain persons and to the heir or heirs male of their or either of their bodies "in failure of which in trust to give the same to the son or sons of my said daughter." It was held that only life estates were given. There is one passage in their Lordships'' judgment very material to the question under examination. It runs:

On whom is the conveyance to be made? None is directed except to the brothers in equal moieties and to the heir or heirs male of their or either of their bodies (or, in simpler words, to the brothers and their heirs male respectively in equal shares), on failure of which to the sons of the daughter. Their Lordships cannot see where the absolute gift of the property to the brothers comes in. It is given, not to'' them, but to them and their heirs male. Why should the words ''heirs male'' be introduced at all, if an estate descendible to heirs general has previously been given ? The words must mean either that the estate of inheritance given to the brothers is a qualified one, or that the heirs male are to take somehow by way of direct gift from the testator.

Gopal Chunder Bose v. Kartick Chunder Dey 29 Cal. 716 was a case where a Hindu testator, after creating an endowment, directed that the sebaitship should be held by his wife, and after her death by his son, and after his death by the testator''s daughter and her husband and their male children successively. The phrase to be construed was "by my daughter and. h.er husband Nundo Doolal Bose and their male children successively." The High Court held that

the word ''successively'' controlled the whole gift to the daughter, her husband, and the male children and that the intention of the testator was to give life estates in the sebaitship to the sous of his daughter in succession.

The Privy Council accepted this interpretation of the will as correct;

AIR 1936 318 (Privy Council) was a case where the will appointed two sons to be the sebaits, and directed that

upon the death, retirement or refusal to act of any of them or any of the sebaits the then next eldest male lineal descendant of (those two sons) shall act as a sebait it being my intention that the eldest for the time being in the male line of my said two sons shall always remain as joint sebaits.

This also was a case in many respects comparable with the present case, and it was held by the Privy Council that there was no separable and independent gift in favour of the persons who were to take respectively on the death of the testator''s son. The sons took for life, and on their death the successiw to the office of sebait must devolve according to the ordinary Hindu law of succession. The provisions of the clause constituted an invalid attempt to lay down a line of succession which was not permissible under the Hindu law. Their Lordships further held that the inten. tion of the testator not to create an estate of inheritance as defined by the ordinary law wag at least as clear as in the Tagore case.13

In dealing with the construction of these deeds a very pertinent observation of their Lordships in AIR 1936 318 (Privy Council) must always be kept in mind. It is: " As is not unusual in such questions of construction, other cases are of little assistance " One basic principle of construction does appear to me to be at the back of them all, namely, the document must be read as a whole to ascertain therefrom the most probable intention of the founder, and having so ascertained it, that intention must be given effect to so far as legally possible, and even if in doing so some of the subsidiary wishes of the testator must necessarily be sacrificed.

Applying this principle to the deeds with which we are concerned in the present ease, I have formed the opinion, that the intention of the founder was not to confer estates of inheritance upon the sebaits. It seems to me that the lady''s main intention was, not to secure an estate of inheritance to any one, but to provide for the proper and continuous management of the endowment. She wished primarily to secure the spiritual benefit of the family ancestors, and as subsidiary to that purpose she provided that the male heirs of the sebaits should succeed to them. She provided also for the contingency that those male heirs might not properly observe the conditions of their appointment. Provisions were made for the dismissal of the sebait by the supervising Goswami, and indeed in certain cases for appointment of a sebait by the Collector who might be any person, and not even a member of the founder''s family. In my opinion, the words "male heirs" were not used at all to emphasise an estate of inheritance as contended by Mr. Das, but to provide that the office should always be occupied by a suitable person, and a female was not regarded as suitable, though understandably enough the lady made an exception in her Own case. I think there was a deliberate intention to exclude females, and I am fortified in that opinion by the fact that when providing for what was to happen on her own death she also confined the succession to males, thereby not only indicating the intention to exclude females but also, in my view, indicating that she did not intend either Jagatdhar or Ram-sumran to have an estate of inheritance. If either of them had predeceased her it was only his existing male heirs, if any, that were to succeed with the other to the sebaitship.

It is quite true that the natural line of succession is not excluded in express terms, nor is the expression "estate for life" ever used. In my opinion, that is not indispensable if they are there by necessary implication. To say that a thing Shall be all black is as good as to say that none of it shall be white.

It is, in my opinion, important to notice in this connexion that under the deeds no emoluments or benefits of any kind were attached to the office. In my considered opinion, the deeds should be construed as conferring estates for life only upon Jagatdhar and Ramsumran Prasad.

I shall take next the third question I have enumerated, namely, that of the possibility of independent gift, since the considerations for the determination of this question are largely analogous to those for determining that of which I have just disposed, and several of the rulings referred to are equally applicable upon this question. We are concerned only'' with defendant 1, since before 1916 no gift could be made by a Hindu to a person not in existence at the time of the gift. We start also with the premises that sebaitship is in a sense property : Manohar Mu-kherji v. Bhupendrariath Mukherji AIR 1932 Cal. 791 and that the rules laid down in Ta-gore''s case13, are applicable to hereditary offices, such as sebaitship : [see Gnanasam-banda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271 re-affirmed by the Privy Council in AIR 1936 318 (Privy Council) . The view taken in Bimalabala Sinha v. Deb Kinkar Ghosh AIR 1932 Pat. 267 cannot be regarded as correct. A contrary view has been taken in Mt. Anuragi Kuer v. Parmanand Pathalt. AIR 1939 Pat. 1.

No difficulty is created by the fact that defendant 1 was not alive at the time of the first deed, since in the second deed the provisions with regard to the sebaitship are re-iterated in identical terms. The question is: can the statement and subsequently on the death of any sebait his male heir or heirs will one after another be sebaits in his place" be construed as a separable and independent gift to defendant 1, who was then alive ? Was there, in short, any gift over, or was there merely a provision with regard to succession which must be rejected as repugnant to Hindu law?

Once again the two principles to which I have referred, namely, that the phrase must be read in the light of the terms of the document as a whole, and that in construing such a document other cases are of little help, must be kept in mind. The passage in Tagore''s case13 will be recalled:

If, on the other hand, the gift were to a man and his heirs, to be selected from a line other than that specified by law, expressly excluding the legal course of inheritance, as, for instance, if an estate were granted to a man and his eldest nephew, and the eldest nephew of suoh eldest nephew, and so forth, for ever to take as his heirs, to the exclusion of all other heirs, and without any of the persons so taking having the power to dispose of the estate during his lifetime; here, inasmuch as an inheritance so described is not legal, such a gift cannot take ef fect except in favour of such persons as could take under a gift to the extent to which the gift is con sistent with the law It remains, however, to be considered whether the persons described as heirs in tail or heirs of inheritance not recognized by law, are sufficiently designated to take successively by way of gift that which the ''will incorrectly assumes to give them as heirs, so that they may be regarded as a succession of donees for life.

It follows that if defendant 1 be regarded as sufficiently designated, he could take as donee, but in applying this principle the observations of the Privy Council in AIR 1936 318 (Privy Council) cannot be ignored. That was a case where the provision was that upon the death of any sebait, the then next eldest male lineal descendant should act as sebait, it being the testator''s intention, it is said, that the eldest for the time being in the male line of his two sons should always remain as joint sebaits. Upon this the Privy Council remarked:

Their Lordships do not find it possible, as matter of construction of the clause here in question, to find a separable gift in, favour of the persons who were to take respectively on the death, retirement or refusal to act of Kartick and Ram. The testator combines the whole series of changes in the succession in one sentence, ''upon the death, retirement or refusal to act of any of them or any of the future sebaits,'' and additional force is given to this observation by the terms of the declaration of the testator''s intention in the later part of the clause, which also covers the whole series of ohanges in the succession.

Kandarpamohan Goswami Vs. Akshayachandra Basu, and in appeal Kandarpa Mohan Gossain Vs. Akhoy Chandra Bose and Another, was a somewhat analogous case where it was also held that there was no gift over.

What we have to do is to try and interpret the real intentions of the founder. In the present case taking the document as a whole it seems to me clear that no independent gift to defendant 1 was in her contemplation. I have already expressed the opinion that what she was doing was merely attempting to lay down a line of succession which would secure in perpetuity that the sebaitship should always be held by a suitable male. That being so, that provision must be wholly rejected. The lady never, I think, had in mind that that provision should operate as an independent gift to any one. It is significant that the provision is in just the same terms in the first deed as in the second, (though there appear some differences in the translations). At the time of the first deed defendant 1 was not alive. At the time of the second he was. If the founder had in mind any question of independent gift to him, she would surely have altered her language in the second deed so as to make that clear.

Stress has been laid upon Section 15, T. PI Act. In my opinion, however, this is not a case to which Section 15 has any application. In order to) apply Section 15, it must first be held that there is an independent gift to a class of persons, but on the view I have taken there is in these deeds no separable gift to any class of per-sons, but only a gift to persons specifically named, to which is added a provision laying down as invalid rule of succession to those persons.

I shall now deal with the remaining question which involves construing the deeds of endowment, namely, who were the founders ? In my opinion, reading the deeds as a whole it is manifest that only Mt. Jayanti Kumri was the founder, and the reversioners merely joined in the execution of the document as reversioners to avoid any possibility of subsequent objection. They did not execute the deed as independent donors. It is true that in one place there is the expression "we, the declarants, have dedicated the properties specified and detailed in Sch. I," but that must be read, in the light of the document as a whole, and read as a whole the document, to my mind, shows that the reversioners joined merely to show their consent.

Actually the reversioners had no disposable interest vested in them of which they could make a gift. A reversioner has only a spes successionis, and not a vested interest: see Rangasami Gouden v. Nachippa Gouden A. I. R. 1918 P. C. 196. Mr. Das has attempted to. overcome this difficulty in a most ingenious manner. He has argued that the documents must be construed as an alienation by the lady of the properties in question to the reversioners, thereby converting them into proprietors thereof and then an independent gift by the reversioners making them also founders. This argument seems to me very far-fetched. In the first place, it was never the plaintiff''s case that his father and Jagatdhar had executed the document as founders. The case made out in the plaint is thfit the property belonged to the lady, and she was the founder of the endowment: see paras. 8 and 9 of the plaint. It is also significant that the lady made herself the first sole sebait, and it was_ only on her death that the reversioners were to come in as sebaits. It was moreover the lady''s husband who has made the san-kalpa (resolve), which is the first step in the dedication.

Mr. Das has based his theory on the legal fiction that when the widow disposes'' of the entire estate with the consent of the reversioners, that is a binding transfer of the entire estate, the deed being construed as a relinquishment of her interest by the widow, a kind of voluntary self-annihilation, coupled with a transfer by the reversioners: see Nobokishore Sarma Roy v. Hari Nath Sarma Roy 10 Cal. 1102, Debt Prosad Chowdjiury v. Golap Bhagat 40 Cal. 721, and Bangasami Gou-\\den v. Nachiappa Gouden 46 I. A.72. This (fiction, however, is olearly limited to the case of an alienation of the entire estate, as is made clear in the latter two cases. It proceeds upon the theory of surrender, which in turn rests on the fiction that the widow voluntarily causes her own civil death; thereby it must be limited to an alienation of the whole estate, since it is settled that the widow cannot surrender a portion of her interest. She cannot be dead for some purposes, and alive I for others. Where the alienation is of a portion of the estate only, as in the present case, jit is not construed as a transfer by the rever-isioners. The fact that the reversioners have jjoined merely raises a presumption that the ''alienation was for necessity and so binding upon the reversioners which is quite a different matter. In no circumstances by the application of this doctrine could the reversioners be regarded as founders.

Mr. Das has argued further that since the defendants came in in 1920 on the basis of the document, they are bound by the recitals contained in it, and so are estopped from contending that Ramsumran and Jagatdhar are not founders. There is, however, no question of estoppel in the view I take of the document as a whole, since read as a whole it contains no recital that Ramsumran and Jagatdhar are the founders. I am decidedly of opinion that the lady must be regarded as the sole founder of the endowment.

There remain the two questions which are pure questions of law, neither of which is an easy one to decide: first, when does reverter take place ? Is there reverter to the heirs of the founder of the interest of a co-sebait upon his deatn ? Mr. Das''s argument may be summarised as follows : Sebaitship is property, and all the rules of property law apply to sebaitship except such rules as by reason of the peculiar nature of sebaitship are necessarily inapplicable : Manohar Mukherji v. Bhupendranath Mukherji AIR 1932 Cal. 791, and AIR 1936 318 (Privy Council) . When an estate is conferred on two persons they take specific shares as ten-ants in common, and there is no survivorship between them : Jogeswar Narain Deo v. Bam Chandra Dutt 23 cal. 670, Ram Piari v. Krishna Piari A. I. R. 1921 All. 50, Jowala Bam v. Mt. Ghandan A. I. R. 1926 Lab. 677 and Gopal Chunder Bose v. Kartick Chunder Dey 29 Cal. 716. Therefore Ramsumran and Jagatdhar each took an eight annas interest. Each sebait has a specific interest capable of being partitioned: Mitta Kunth Audhicarry v. Neerunjun Audhicarry 14 B. L. R. 166, Pramatha Nath Mullick v. Pradyumnakumar Mullick and Manohar Mukherji v. Bhupendranath Mukherji AIR 1932 Cal. 791). Where a life estate is created, there is a vested interest in reversion in the settlor: Rewan Persad v. Mt. Radha Beeby 4 M.I.A. 137and Sreemutty Knstoromoney Dossee v. Maharajah Norendro Krishna, Bahadoor 16 I. A. 29. Therefore on the assumption that Jagatdhar and Ramsumran had life estates only, on the death of Jagatdhar, his eight annas interest at once vested in the heir of the settlor, namely, Ramsumran. That interest was a heritable interest: Kunja-mani Dassi v. Nikunja Bihari Das AIR 1916 Cal. 312.

This argument is ingenious, and at first sight plausible. Nevertheless, it is, in my opinion, fallacious. Though it is quite trpe that sebaitship has been held to be property in many respects, yet it is unquestionably more than that. A sebait may not be a trustee in the English sense, yet who can deny that though property in one sense, in another his is an office of trust ? The Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar 48 I.A.. 302 while holding that a sebait is not a trustee in the English sense of the term, went on to say that in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-ad ministration.

We also get from the same Privy Council case (page 310) that

The only law as to (thesel mabants and their functions and duties is to be found in custom and practice, which is to be proved byttestimony.

It follows that in considering the questionj of devolution of sebaitship the law of property] has little application. In so far as it applies at all, it is only as a result of custom and practice which, as I have noted, ascribes much weight to the wishes of the founder.

In my view, we cannot decide when reverter takes place, unless we first understand why it takes place. Once we know why, it is then comparatively simple to determine when. Is the reason for reverter the right of any person to claim the property? Is the question to be determined by considerations of property law? In my opinion, it is not. In dealing with the question of adoption dating back, Mr. Das has treated us to a. most interesting historical argument showing how far a long time two rival theories of adoption existed side by side, namely, the secular or property theory, and the spiritual theory, the first holding the validity of adoption to depend upon questions of the vesting of the property, the other holding it to depend on the spiritual necessity of continuing the line and performing the spiritual obligations to the family ancestors; and he showed how under the guidance of the Privy Council the spiritual theory gradually triumphed. I shall come to that later. I mention it now simply to say that just as there are two possible theories with regard to adoption, there are also, in my view, two possible theories with regard to sebaitship, the secular and the spiritual and, here again, in my opinion, where there is a conflict between the two, the spiritual theory must prevail. That is to say, the question of reverter must be decided upon spiritual considerations and not on secular considerations of rights of property. The primary consideration in dealing with sebaits must be the sheb''a (worship) of the deity in accordance with the intention of the founder, and considerations of rights in property must be secondary.

The determining factor in causing reverter to the heirs of the founder must, therefore, be the necessities of the sheba, and not any question of rights in the office regarded as property. Nothing comes back to the heirs of the founder in their own interest. The office reverts, in my view, only if and when the necessities of the deity or the endowment require it; otherwise, the founder and his heirs have no further rights or powers. Unless, therefore, the necessities of the endowment require it, there can be no/reverter.

It is true that the reverter brings with it property rights, but that is only because these rights are inseparably connected with and inherent in the office. It is a case, however, of the rights following the office, and not of the office following the rights.

Once we decide that the cause of reverter lies in the necessities of the endowment, and not in any rights to property, it is quite easy to decide when it takes place. Obviously it must take place, as has been repeatedly held, when the line of devolution of the sebaitship wholly fails, for, otherwise, there would be no means of carrying on the sheba. But, equally obviously, in the case of the death of a co-sebait there is no cause for reverter unless under the terms of the deed of endowment, or for some particular reason connected witfi the sheba, any particular number of sebaits isl necessary.

Let us apply these principles to the present case. The deed nowhere prescribes that there must be any particular'' number of sebaits, and there is nothing in it anywhere to suggest that one alone will not suffice fully to carry out the intentions of the founder and adequately to serve the interests of the deity. On the contrary, there are passages in the deed which suggest that the founder never contemplated any reverter upon the failure of one particular sebait. The deed itself provides (paras. 12 and 13) that on failure of a sebait or managing sebait for certain particular reasons, such as, malfeasance, there will be not reverter to the heirs of the founder, but fresh appointment either by the other sebaits, or failing that by the supervising Goswami, or failing him by the Collector. This being the case, the death of one eo-sebait can surely form no occasion for reverter, for there is nothing which requires the services, or can invoke the dormant powers of the founder or his heirs. Clearly when there is no reversion to the heirs of the founder of the office itself, or the right to make a fresh appointment, there is nothing in the nature of property which they can gain by reverter since the emoluments and perquisites of the office are inseparably connected with the office itself. It is not out of place to notice in this connexion that in the deeds in the present case the sebaits are given no beneficial interest at all in the office.

In this view of the matter it is unnecessary to hold whether sebaits do or do not hold as tenants in common, for that question becomes irrelevant.

So far as I am aware, the precise question as to reverter upon the death of a co-sebait has never been the subject of judicial decision. I, therefore, have had to decide it in accordance with the principles which appear to me to be applicable. Nevertheless there are indications in various decisions which seem to me to afford indications that the view I have taken is not incorrect. In Kohilasari Dasi v. Mohunt Rudranand Goswami 5 c. L. J. 527 it was held that where the administration of an endowment is vested in several trustees, they all form, as it were, but one collective trustee and they must exercise the powers of their office in their joint capacity, a principle which was re-affirmed in Narendra Nath Kumar v. Atul Chandra, Banerjee 27 C. L. J. 605 and by the Privy Council in Baraboni Goal Concern, Limited v. Gokul-ananda Mohanta Thakur 61 I. A. 35 Their interest and authority being equal and undivided, they cannot act separately, but all must join. Upon the death of one of several joint trustees, the validity of the exercise of the trust powers by the survivors depends upon the nature of such powers; if these powers are coupled with an interest or are annexed to the office of the trustee, they will pass with the trust to the survivors and can be exercised by them (the word ''trustee'' is of course here-used in the general sense).

In Sital Das Babaji v. Protap Chandra Sarma 11 C.L.J. 2 there occurs the following passage:

It is difficult to appreciate how it can be seriously contended that they (the representatives of the founder) have no right to intervene when it is found that the succession to the office of trustee has wholly failed and the properties have passed into the hands of a trespasser who sets up a fictitious claim to the office of mohunt .... It is impossible, in our opinion, to support the view that the founder who furnishes the original endowment has no concern when he finds that by reason of the failure of the succession to the offioe of trustee, the whole object of the endowment is jeopardised.

Their Lordships were here dealing with the case of reverter upon complete failure of the line of sebaits, but it is surely clear that it is the spiritual theory upon which they have based their view, and not the secular.

Krishna Bhatta v. Sirinivasa Shambagu AIR 1917 Mad. 730 is an interesting case.. The management of a temple was vested in five trustees. Where one had resigned it was held that there being no contrary declaration in the instrument of trust, the trust property passed to the others, and a suit instituted by the remaining four was maintainable. Similarly, where a second of the trustees died in the course of the suit, it was held that it could be validly continued by the other three. Their Lordships did not take the view that the heirs of the founder were necessary parties, as might have been argued had there been reverter. It is interesting to note that in this case it was further held that though.the Trusts Act was expressly made not applicable, yet the principle of Section 76, Trusts Act, which lays down that on discharge of several co-trustees the trust survives and the trust property passes to the others unless the instrument of trust expressly declares otherwise, could be applied in deciding the case. It was perhaps unnecessary to apply Section 76, yet the fact that they did so indicates the point of view from which their Lordships were regarding the matter.

In Boidyo Gauranga Sahu v. Sudevi Mata 40 Mad. 612 a Full Bench case of the Madras High Court, we find clear indications of the basis of the doctrine of reverter. Thus Wallis C. J. observes (p. 618):

The institution of hereditary trusteeship is held to rest on the intention of the donor either expressed in the instrument of trust or to be presumed from usage and the doctrine of reverter to the heirs of the donor on failure of the line of devolution prescribed by him must also, it seems to me, rest on his presumed intention.

Srinivasa Ayyangar J. (page 624) refers to Mt. Jai Bansi Kunwar v. Chattardhari Singh 65 B. L. B. 181the case in which the doctrine of reverter was first formulated, and notes that the learned Judges did not treat it as one based on Hindu law or usage, but said that as one of the provisions of the trust, that which related to the management, failed, and as the idol cannot manage the property, the managership must revert to the heirs of the person who endowed the property. His Lordship was dissenting from the view expressed, but that is immaterial. The point is that in the case in which the doctrine was first formulated, it was formulated upon what I have called the spiritual basis, that is to say, service of the interest of the idol.

In Kunjamani Dassi v. Nikunja Bihari Das AIR 1916 Cal. 312 the learned Judges who decided that case observed that

the principle of vested interest while the actual enjoyment of the expected interest is postponed till the termination of the life estate has no application to cases of sebaitship. That a sebait holds his office for life does not signify that he has a life interest in the office with the remainder presently vested in the next taker .... The position of a sebait is analogous to that of a Hindu female in possession of the estate of the last full owner rather than to that of the holder of a life estate.

I turn now to Mr. Das''s last contention, namely, that adoption dates back not only to enable an adopted son to succeed lineally by divesting other persons, but also collaterally: adoption dates back both for lineal succession and for collateral succession,. because the position of an adopted son is for all purposes exactly the same as that of a natural son (subject to certain exceptions recognized in Hindu law with which we are not concerned; for example, that he is postponed to a natural son afterwards born, and. he cannot marry into his natural family); since the adopted son takes the position of a natural son for all purposes, the only question that arises is as to the validity of the adoption: Once the adoption is held valid, devolution of property, which is only a secondary consideration, follows as a matter of course.

How is the limitation of the right of a widow to adopt to be fixed? Mr. Das points out that two contending theories are manifest in the line of decisions: the property or secular theory of adoption and the spiritual theory. The first says the limit of the power is the vesting of the property in some one other than the widow, because under Hindu law when property has once vested, it cannot be divested. The other says that the limit is not to be fixed by any question of vesting or divesting the property, and arises only when the possibility or necessity of conferring spiritual benefit no longer arises.

Mr. Das, as I have already indicated has presented a most interesting historical argument upon this point, showing how the influence of the rival theories has been apparent in the decisions of the Indian Courts, and how the Privy Council has consistently set its face against the property theory, until it no longer survives anywhere, except in Bombay, where it still maintains a precarious existence, probably owing to the fact that in Bombay a widow can adopt without any sanction, and consequently widow adoption is very prevalent.

Mr. Das contends that the property theory resulted from a misunderstanding by the Indian Courts of Bhoobun Moyee Debia v. Bam Kishore 10 M. I. A. 279. Bhoobun Moyee''s case (1863) 10 M. I. A. 279 was decided in 1865. The Privy Council had actually knocked the bottom of the property theory in Sri Raghunadha v. Sri Brozo Kishoro 1 Mad. 69 as early as 1876; yet still the Calcutta High Court clung on to that theory, as is manifest from Kally Prosonno Ghose v. Gokool Ghunder Mitter 2 Cal. 295, Puddo Kumaree Debee v. Jug. gut Kishore Aeharjee 5 Cal. 615 and Nil. comul Lahun v. Jotendro Mohun Lahuri 7 cal. 178. Pudoo Kumaree Debee''s casem came before the Privy Council (see 8 Cal. 302), and their Lordships pointed out that Bhoobun Moyee''s case (1863) 10 M. I. A. 279 had not actually been decided upon the property theory. The Privy Council had not held that the adoption was valid but incompetent to divest the property, but had rather held that the adoption was invalid since the widow''s power of adoption was at an end.

Ever since then the Privy Council has consistently taken the view that the right of a widow to adopt has got nothing to do with considerations of property, but is based on spiritual grounds.

Mr. Das has dealt with the relevant decisions in detail. It is not necessary to deal with his analysis in equal detail here, but reference may usefully be made to certain points. In Brozo Kishoro''s case 1 Mad. 69 it was definitely held that it was not necessary that property should vest in the widow in order that adoption by her should be valid. Their Lordships refer to a dictum of Hollowway J. in 1864 in Collectov of Madura v. Muthu Bamalinga 2 M. H. C. R. 206 - the spiritual criterion is the essential thing, and the consequent devolution of property a mere accessory to it. I should like here to notice, however, a passage in their Lordships'' judgment at page 193:

It maybe the duty of a Court of Justice administering the Hindu law to consider the religious duty of adopting a son as the essential foundation of the law of adoption; and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to make the succession to property-and it maybe in the case of collateral succession, as in the present instance, the rights of parties in actual possession-dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over property. It seems, therefore, to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it.

In Pudma Coomari Debt''s case 8 Cal. 302 the Privy Council definitely affirmed the right of the adopted son to succeed collaterally. Nilcomul''s case 7 Cal. 178 came before the Privy Council in 1885 12 Cal. 18, and there their Lordships definitely laid down that according to the Hindu law an adoption after the death of a collateral does not entitle an adopted son to come in as heir to the collateral. This is the case which more than any other seems to stand right in the way of Mr. Das''s argument, and I shall revert to it later.

In 1887 came the case of Thayammal v. Venhatarama Aiyan 10 Mad. 205 where it was again pointed out that Bhoobun Moyee''s case66 had been misunderstood, and their Lordships proceeded to hold that when the estate had vested in the son''s widow, the mother''s power of adoption was at an end. That was not based on any question of vesting or divesting of property, but on the passing on of the spiritual obligation to the son''s widow.

The same principle is adopted in 1889 in Tarachum Ghatterji v. Suresh Ghunder Mooherji 17 Cal. 122. The spiritual criterion was again adopted by the Privy Council in Versbhai Ajubhai v. Bai Hiraba 27 Bom. 492, Kannepalli Surya Narayana v. Pucha Venkata Bamana 29 Mad. 382 and Bachoo Hurkisondas v. Mankorbai 31 Bom. 373. In 1918 came a very important case, Madana Mohana Deo v. Purushothama Deo AIR 1918 P. C. 74. There the widow''s authority was held to have ceased when a son she had previously 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. In this case it is first pointed out how the difficulty regarding vesting and divesting of property is overcome, namely, that when there is an authority to adopt in the widow anyone who takes the estate succeeds only provisionally and subject to defeasance by the emergence of a male heir upon adoption.

Next comes the case of Pratapsing Shivsing v. Agarsingji AIR 1918 P.C. 192 where it is expressly stated that a Hindu widow can exercise a power to adopt which is vested in her so long as the power is not extinguished or exhausted, even although her husband''s estate is not vested in her. That an adopted son becomes for all purposes a son of his father and that his rights, unless curtailed by express texts, are in every respect the same as those of a natural born son. An adopted son is the continuator of his adoptive father''s line exactly as an aurasa son, and an adoption, so far as the continuity of the line is concerned, has a retrospective effect. Whenever an adoption may be made there is no hiatus in the continuity of the line. In fact, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible.

In 1933 came AIR 1933 155 (Privy Council) , the case relied upon by the Subordinate Judge and the case mainly relied upon by Mr. Das. It is important to appreciate the facts of that case, and the following genealogy is of assistance in doing so:

RISHNA CHANDRA | ___________________|________________ | | Raja Kishon Madan Singh | | Raja Raghunath Clientarmoni | | Raja Brajendra Banamalai Rani Indumati | ______|_____________________ | | Raja Bibhudendra Amarendra (adopted). The estate was an impartible one, and by a custom of the family females were excluded from inheriting. Raja Brajendra left a will giving his widow, Rani Indumati, authority to adopt. On his death in 1903, Brajendra was succeeded by his son, Bibhudendra. This Bibhudendra died in 1922 unmarried at the age of twenty years and six months. A week later, his mother, Rani Indumati, adopted Amarendra. Now, on the death of Bibhudendra the estate had at once vested in a cousin, Banamalai; since the widow herself could not inherit. The Privy Council held that the adoption of Anlarendra was valid, which comes to this, that Amarendra was entitled to succeed his deceased brother, a collateral, by divesting his cousin, another collateral.

At first sight this case appears to be directly in point and to be Privy Council authority for the proposition that an adoption will take retrospective effect so as to enable the adopted son to succeed collaterally. Moreover, their Lordships proceeded upon the basis that Banamalai was a separated sapinda and claimed strictly by inheritance, and in the course of their judgment they made a number of important observations. They said that

the foundation of the Brahrninical dootrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the father''s duty has been performed and the means provided by him for its fulfilment spent : the ''debt'' he owed is discharged, and it is upon the new generation that the duty is now cast.

They said:

It can hardly be doubted that in this doctrine the devolution of property, though recognized as the inherent right of the son, is altogether a secondary consideration,

and they quoted from Brozo Kishoro''s case 1 Mad. 69

a distinction which is founded on the nature of property seems to belong to the law of property, and to militate against the principle that the validity of an adoption is to be determined by spiritual rather than temporal considerations ; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.

They then go on to say that though there may be no doubt as to the correctness of this doctrine,

there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect.

Their Lordships comment on the fact that, as was stated by a learned Hindu Judge in 1900,

the whole current of recent decisions has been to base this limitation solely on the question whether the widow''s act of adoption derogated from her own rights or the vested rights of others,

yet, they say, it was never so laid down by the Board in precise terms. Their Lordships referred to the case of Pratapsing Shiv-sing v. Agar sing ji AIR 1918 P.C. 192 and noticed that the point of view of the High Court in that case was that the land having once vested in some one else, the adopted son could not divest it. "If this view," said their Lordships,

had been accepted by the Board, it might well have been decisive in favour of the present respondents on their first line of argument. But it was not accepted, and their Lordships think that it must be regarded as decisive the other way. Notwithstanding that the property had vested in the respondent, the .adoption was held to be good, and the suit was dismissed.

Finally they held upon the spiritual doctrine that since the natural son had left no son to continue the line nor a widow to provide its continuance'' by an adoption, the mother''s power of adoption still existed and the adoption was valid.

The fact that the adoption so held to be valid had a retrospective effect so as to enable Amarendra to divest Banamalai was perhaps not expressly stated in AIR 1933 155 (Privy Council) , though the case proceeded upon that basis. But in 1935 came Vijaysingjd''s case 62 I. A. 161 where AIR 1933 155 (Privy Council) was followed, and an adopted son was allowed to succeed to his brother by divesting his uncle, and here their Lordships expressly said that the adoption having undoubtedly served the purpose of continuing the line, it could not be impeached simply because, it would defeat the estate which had vested in some other person.

These cases undoubtedly present at first sight the appearance of fully supporting Mr. Das''s contention. But besides the formidable obstacle in his way presented by Nilcomul''s case 12 Cal. 18 . Mr. Das has had to face the fact that AIR 1933 155 (Privy Council) has been construed by a Full Bench of the Bombay High Court in a manner which militates against his argument. The case I refer to is Balu Sakharam v. Lahoo Sambhaji ILR 1937 Bom. 508. In this case an attempt has been made to distinguish AIR 1933 155 (Privy Council) on the ground that while the adoption might be valid, it might not have the effect of divesting the property from the heir of the last surviving coparcener other than the widow. Their Lordships held that where an adoption takes place after the termination of the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a predeceased coparcener has not the effect of reviving the coparcenary, and does not divest property from the heir of the last suviving coparcener (dther than the widow).

The learned Chief Justice observes:

If it be held that the effect of a valid adoption by a widow is generally to divest in favour of the adopted son estates which have become vested in or through an heir of the last holder, it must mean that so long as the possibility of ad iption exists, no one can safely deal with property the title to which may be affected by such adoption.

The view of the Bombay High Court in this case is based on an old Bombay decision of 1890, Chandra v. Gojarabai 14 Bom. 463 , and the learned Chief Justice was of opinion that that decision had never been overruled so far as it decided the effect of the adoption upon the vesting of property. In dealing with AIR 1933 155 (Privy Council) he observes:

Chandra''s case 14 Bom. 463 was not mentioned, and I see nothing in the judgment of the Board to suggest that they disapproved of the reasoning upon which that case was based so far as it relates to the vesting or divesting of property.

It is true that Chandra''s case 14 Bom. 463 was not expressly mentioned. Nevertheless it must, in my view, be taken to have been overruled, for a later Bombay case, Bhtmbai v. Tayappa 37 Bom. 598 was expressly based on Chandra''s case, 31 Bom. 373 and in regard to Bhimbai v. Tayappa 37 Bom. 598 their Lordships observe:

Unless there is something in the nature of watan property which makes the decision in Pratapsing''s case38 inapplicable, their Lordships think that this case can no longer be regarded as authoritative.

It is, in my view, impossible to hold that in AIR 1933 155 (Privy Council) the Ptivy Council simply meant to lay down that the adoption was valid, and not that the adopted son would divest his cousin Banamalai. It is really not a question of divesting, for, to revert to what Lord Haldane said: the property has been taken only provisionally and subject to defeasance by the adopted son.

In the Bombay case an attempt has been made to distinguish AIR 1933 155 (Privy Council) and Vijayasingji''s36 cases on another ground, namely, that in those two cases there was a coparcenary though of a peculiar nature, since an impartible zamindari has been held to be a coparcenary though of a special character. But, as I have already noticed in AIR 1933 155 (Privy Council) , the Privy Council expressly proceeded upon the assumption that there was no coparcenary and Banamalai had succeeded as a seperatad sapinda by inheritance. Apart from that, in Baja Rama Rao v. Raja of Pittapur AIR 1918 P. C. 81 the Privy Council has said : "An impartible zamindari is the creature of custom; it is of its essence that no coparcenary in it exists."

The learned Chief Justice of the Bombay High Court in speaking of AIR 1933 155 (Privy Council) and AIR 1935 95 (Privy Council) goes on to say:

The effect of the decisions is to show that in a coparcenary of that nature adoption in the line of the elder son will divest the property from the line of the younger son, although the latter did not take by survivorship. But we have been referred to no case in the Privy Council, and the learned advooates in thia case, to whose industry we are much indebted, have told us that they know of no case, in which the adoption took place after the termination of the coparcenary. There appears to be no authority in the Privy Council directly holding that after the determination of the coparcenary by the- death of the last coparcener a subsequent adoption by the widow of a deceased coparcener will vest the coparcenary property in the adopted son'' to the exclusion of the heir of the last holder, other than the widow herself.

In my opinion, that is to take too narrow a view of the effect of the decisions of the Privy Council in the cases referred to. Having regard to the weight which must be attached to the decision of the Full Bench presided over by the Chief Justice, I say this with considerable diffidence, but I am strengthened in my view by a decision of the Nagpur High Court in which this Full Bench case has also been considered. I refer to Mt. Drau-padi v. Vikram Krishna Mali A. I. R. 1938 Nag. 423 . In that case the learned Chief Justice of the Nagpur High Court in speaking of this Bombay Full Bench decision observes that in that case the learned Judges regarded the question from the point of view whether the effect of AIR 1933 155 (Privy Council) and AIR 1935 95 (Privy Council) was to overrule the dictum in Chandra''s case 40 Cal. 274 that the adoption could not divest the estate of one on whom the property had devolved by inheritance from a lineal heir of the husband. He noticed the majority view that the adoption was valid but could not divest and the minority view that the adoption itself was invalid both for spiritual and secular purposes, and proceeds:

With due respect, it may be observed that either view discards the ancient texts which sustain the principle laid down by the Privy Council.

The judgment proceeds:

The question is a complex one but the answer is unmistakably traceable in the two Privy Council decisions." With respect I agree with that observation and, in my opinion, Mr. Das has successfully overcome the obstacle presented by Balu Sakharam Powar Vs. Lahoo Sambhaji Tetgura, .

There remains, however, the other obstacle, that provided by Nilcomul''s case 12 Cal. 18 where the Privy Council held in express terms that according to Hindu law an adoption after the death of a collateral does not entitle an adopted son to come in as heir to the collateral. Mr. Das attempts to distinguish this case on the ground that the adopted boy had not been born at the time when the succession opened, so that the boy could never in the course of nature have become the heir of the estate. In my opinion, however, the case cannot be distinguished upon that ground. That was one of the factors taken into consideration no doubt, but, in my view, Sir Barnes Peacock could not have been referring to that circumstance alone when he said:

Acoording to the law as laid down in the decided, cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral.

Some other distinction must be sought upon which this case can be reconciled with AIR 1933 155 (Privy Council) and AIR 1935 95 (Privy Council) . That distinction can, in my opinion, be found. It is a distinction for which we are indebted to Sir Manmatha Nath Mukherji. It is this, that in AIR 1933 155 (Privy Council) and. AIR 1935 95 (Privy Council) their Lordships were dealing with and considering only the effect of the adoption with regard to the family property, that is to say, the estate of the father. The question of whether the adoption would date back as regards succession to the property of other persons altogether was not before their Lordships and was not considered by them. What they held merely was that the adopted son would by legal fiction date back as the son of his father so as to secure the continuity of the line. It would be quite a different thing to say, (and in my view their Lordships never contemplated that it should be said) that the adopted boy will date back not only as his father''s son but as second cousin or grand-nephew to some other person. The fiction of dating back is only for the purpose of continuing the line and conferring spiritual benefit upon the father and to a lesser extent upon the family ancestors. It is not a fiction which it is either necessary or desirable to adopt for all purposes. The son becomes a son for all purposes, and as such can inherit the property of collaterals no doubt. But the question of what he becomes is distinct from the question of when he becomes it. It is only by fiction that the boy can be said to have become a son at a date prior to his actual adoption. Having dated back by fiction for the purpose of continuing the line and conferring the spiritual benefit, the son takes in return the property which his father was possessed of at the time of his death, and, if that property has in the meanwhile passed to some one else by inheritance, he will necessarily divest that person. If the property has in the. meanwhile passed to some one who has in turn been succeeded by some one else, that third person will also be divested, because any one who takes the property of the father takes it provisionally and subject to the risk of defeasance should, adoption take place. The important point is that the son takes this property as the son of his father, and not because he may also happen to be the collateral heir of the second last holder.

The spiritual theory must unquestionably prevail, but what does that doctrine actually involve? It involves that the adopted son dates back as a son to his father. By that limited fiction he can satisfy all the spiritual purposes of a son, and so upon the spiritual theory there is no warrant for extending the fiction to make him date back as the relative of some other person.. He can satisfy all the spiritual purposes of a son without that extension of the fiction, and, on the other hand, he would confer no spiritual benefit on the collateral relatives by dating back.

It is to be noticed that this doctrine is founded purely upon the spiritual theory of .adoption, and has nothing to do with any question of vesting or divesting of property except incidentally.

If this distinction be borne in mind and the fiction of dating back be limited to dating back in the direct line as a son, then the cases of AIR 1933 155 (Privy Council) and Vijaysingji36 are easily reconciled with that of Niloomul.ss The latter was a case of true collateral succession. The two former cases, however, were cases where the adoptive boy succeeded to his father''s estate, though he might have taken it in succession to his brother.

The five questions which I have formulated have now been answered. Jagatdhar and Ramsumran took life estates. Reverter does not take place upon the death of one of several co-sebaits. Upon the terms of the deed there was no independent gift to any one other than the persons specifically named. Musammat Jayanti Kumri was the sole founder, and, lastly, adoption would not operate retrospectively so as to enable the adopted son to inherit collaterally by divesting the property unless that property is the estate of his own father. It is now necessary to apply all this to the determination of the case. The plaintiff plainly cannot succeed as heir of his father, since his father had no heritable interest in his own share. As for Jagatdhar''s share, that never passed to Ramsumran, because on Jagatdhar''s death there was no reverter to the heirs of the founder. Moreover, no claim was made in the plaint to the interest of Jagatdhar in the hands of Ramsumran.

The plaintiff also cannot take under the terms of the deed, since the provisions regarding succession are invalid, and there is no independent gift.

Lastly, the plaintiff cannot take as heir of the founder. It may be that there was reverter to the heirs of the founder upon Ramsumran''s death in 1924 if the defendants had not come in validly on the death of their father in 1920, but that reverter in 1924, if it took place, cannot avail the plaintiff, for: his adoption, will not date back so as to enable him to succeed to the estate of the founder, a collateral, by divesting the defendants in whom it must in any case have validly vested in 1924.

In the view which I have taken the plain-tiff must fail. I, therefore, agree with my learned brother that the appeal must be al. lowed, and the suit must be dismissed. As,. however, the appellants occupied half the time of the Court in arguing a question namely, the validity of the adoption, in regard to which the finding is against them, I consider that each party should bear its own costs.