Richard Couch, J.

1. The suit which is the subject of this appeal was brought for the rent of some property which was part of an estate formerly belonging to one Kali Krishna Lahiri. He died in 1851, having had two wives, the elder, Shama Soondari Deli, and the younger, Brahmamoyi Debi. By Shama Soondari Debi he had one son, Koilas Chunder Lahiri, who died in 1856. After the death of Koilas Chunder Lahiri the two widows simultaneously, as has been found by the Lower Appellate Court, adopted sons. Shama Soondari adopted one Suresh Chunder, and Brahmamoyi adopted Jogesh Chunder. That adoption took place in 1859, on the 5th of June. Suresh Chunder died in 1866, and Jogesh Chunder in 1867. Some seven or eight years after the death of Jogesh Chunder, each of the two widows made another adoption, which are found by the Lower Appellate Court to have been simultaneous, and no question will arise whether one was at any moment of time before the other. These adoptions were made on the 30th of July, 1875.

2. The suit was brought by Gyanendra, the son who was adopted by the younger widow on that occasion, against a tenant of some of the land, and against Shama Soondari Debi. Norendra, the son who was adopted by Shama Soondari Debi, is not a party to the suit. The claim for rent is founded upon a lease which was executed on the 12th of February, 1870, by both the widows reserving a certain rent, and there is no question now as to whether the amount for which the decree was passed is correct or not.

3. The only question raised in the case is whether upon what has taken place Gyanendra is entitled to recover half of the rent reserved by the lease; and it may be material to see, before the facts are adverted to, how the case is stated in the plaint. It says:--" The late Brahmamoyi Debi, mother of the said minor Gyanendra Chunder Lahiri, being, in right of her husband and deceased adopted son, entitled to and being jointly and in equal shares with Defendant No. 2." -- that is Shama Soondari--"possessed of pergunnah Muktipore and others mehal No. 187 of the Collectorate towzi of zillah Rungpore, being the ancestral zamindari which the said minor is entitled to and possessed of, died on the 2nd of Falgoon, 1285, leaving her surviving the said minor taken in adoption by her as the sole heir of her and her late husband and son, and as the proprietor of the property." The case seems to be put upon the ground that after what had taken place, Brahmamoyi Debi was entitled to half of the estate, and that her adopted son succeeded to that half.

4. Now, according to the pedigree, upon the death of Koilas Chunder Lahiri, Shama Soondari would succeed to the property as his heir; but it is contended that the widows having the authority to adopt, the adoption of Norendra and Gyanendra, if it were valid; would divest the estate from Shama Soondari Debi and also from Brahmamoyi Debi if she took an interest in it, and would make the adopted sons entitled to the estate in equal shares. So that the case really depends upon the validity of the adoptions which were made by the two widows on the 30th of July, 1875.

5. Now as to those adoptions two questions arise. The first is whether the authority which was given to the widows by the husband authorized such an adoption as they made; and, secondly, whether, supposing he gave such an authority, it is one which the Hindu law allows. The document itself was not produced, but the contents were deposed to by two witnesses. One of them, Kashi Chunder, said it was as follows:--"You, Shama Soondari, the elder widow, may adopt three sons successively, and you, Brahmamoyi, the younger widow, may adopt three sons successively, and that (or those)"--the word being capable of being translated both in the singular and the plural--"adopted son (or sons) will be entitled to offer pind," &c. Another witness deposed to there being the words introduced "and on that being exhausted;" but the Lower Appellate Court seems to have thought it doubtful whether reliance could be placed upon the memory and impartiality of that witness, and the construction of the document must be taken upon the words stated by Kashi Chunder.

6. It appears to their Lordships that these words might be reasonably construed us giving to the widows, not a power to adopt simultaneously, but first to the elder widow power to adopt three sons successively, and then a similar power to the younger widow. The words are capable possibly of another construction, but certainly rather the more natural construction would be that it was a power to adopt successively. It may be observed that if it gave to the younger widow a power to make an adoption simultaneously with an adoption by the elder widow, the elder widow would not be able to adopt three sons successively, because there would be interposed an adoption of a son by the younger widow. That seems to be a reason for not putting such a construction upon the words.

7. Another reason for putting the construction upon it which their Lordships think is the right one, is what appears to be the state of the law on the subject of simultaneous adoptions at the time when this authority was given, because if it should even appear that the law was in such a state that it was extremely doubtful whether simultaneous adoptions could be made, or that from the state of the law it was not likely that there was a practice of that kind, that would be a reason for construing this document as not intended to give a power of simultaneous adoption. In construing it their Lordships would consider that the person giving the authority intended his widows to do that which the law allowed, and not to do something which was, if not absolutely illegal, very unusual and not practised amongst Hindus.

8. Their Lordships are therefore of opinion upon that part of the case that this document did not give to the two widows an authority to make such an adoption as was made by them in July, 1875, when they professed to adopt the two sons Norendra and Gyanendra.

9. But then there is the other question whether, if the authority did allow them to adopt in this manner, it could be done lawfully according to Hindu law. It had been clearly settled by this Committee in the case of Rungama v. Atchama 4 Moores Ind. App. Ca. 3, that a man having an adopted son could not during the life of that adopted son adopt a second son. The authorities were very fully gone into; and although there appeared to be a conflict of opinions amongst the pundits upon the subject, that was decided by this Committee. That case, no doubt, is distinguishable from the present. A simultaneous adoption in some respects would differ from the adoption of a son when there was already one son in existence, and the reason given for not allowing such an adoption is that there are different texts which seem to direct that the power of adoption is only to be exercised where the person adopting has not a son, either a natural-born or an adopted. But much of the reasoning upon which that case was decided applies to the case of a simultaneous adoption. The observation which appears to their Lordships to be the strongest against such an adoption as this being allowed by the Hindu law, is that no authority and no text has been, or apparently can be produced, showing that the Hindu law allows it. It is true that the texts with regard to adoptions are but few, but still they are sufficient to lead to the conclusion that if it was intended that such a power as this should be given to a man with regard to adoption, there would be something in the different authorities in favour of it. That it was not intended by Hindu law may be inferred from the provisions which are made for the case of a son being born after a man has made an adoption. It is laid down by Macnaghten that it a son is born after a son has been adopted, the property is to be divided between the adopted son and the natural-born son in certain proportions, giving, in the case of there being only one adopted son and one natural-born son, to the adopted son a third, according to the law of Bengal, and a fourth according to the doctrine of other schools. Then he goes on to speak of the cases where there are more than one natural-born son, and he states the law for the distribution of the property in such cases. But no reference is made in any of the cases to there being more than one adopted son; and as the power of a Hindu either to adopt himself, or to give to his widows the power to do so in his place, depends upon the law, it seems to their Lordships that it is incumbent upon the party who seeks to avail himself of a simultaneous adoption to produce some authority to that effect. The entire absence of any authority in favour of such an adoption is an argument that the Hindu law did not recognise it, and that it has really not been the practice amongst Hindus; for if such a practice had prevailed to any appreciable extent, some authorities would have been found on the subject.

10. There is a great absence of decisions upon the question; in fact their Lordships have only been referred to one case in which the question of the validity of a simultaneous adoption has been considered, and that is a case in the High Court of Calcutta, reported in Bourkes Reports at page 189. There it was held by the learned Judge who tried the case that an adoption of this description was invalid, and in a subsequent case the same learned Judge acted upon the opinion which he had thus given.

11. So far, then, with respect to there being any authority about it. But there is a note in a recent book published by Shama Charan Sarkar, the author of the Vyavastha Darpana. It is called the Vyavastha Chandrika, and in vol. ii., page 118, of the Precedents, there is this note:--"It may on the whole be safely concluded that whatever may have been the law or the practice in former ages, the simultaneous adoption of two sons or the affiliation of one by a person who has a son (either his own issue or adopted) living, is now illegal according to the concurrent testimony of the most approved authorities." This is the note of Mr. Macnaghten, Hindu Law, vol. ii., p. 201; but it is given without any comment or indication of dissent. Their Lordships do not refer to this book as being any authority as to what the law is. The author, a Hindu gentleman who is well conversant with the Hindu law, and who must also be well conversant with the customs of Hindus with regard to adoption, appears to consider a simultaneous adoption to be illegal; he does not suggest that what is stated is in any way contrary to the habits of Hindus, or in conflict with their usages. But independently of this, and without placing any reliance upon this book as an authority, they are of opinion that by the Hindu law an adoption of this description was not allowed. Therefore, on both grounds, that the power given by the husband did not authorize the widows to make such an adoption as this, and also that the law did not allow it, even supposing the husband had intended to give such an authority, their Lordships are of opinion that the Plaintiff has failed to make out his title to recover any portion of the rent which he has sued for.

12. Their Lordships will therefore humbly advise Her Majesty that the decree of the High Court be affirmed and the appeal dismissed, and the Appellant will pay the cost of the appeal.