Das, J.We are concerned in this litigation with the question of succession to the estate of Krishna Pertap Inder Narain Singh, who died on the 17th March 1878, leaving a mother, Mt. Meghrani Kuer, and a grandmother, Mt. Mulukrani Kuer. Meghrani Kuer succeeded to the estate, and on her death, which took place many years ago, Mulukrani Kuer took the estate as the next heir of the last male holder. Mulukrani died on the 9th March 1908, and, on her death, the question of succession arose in a very serious form. On the 24th March 1908, the police reported that there was grave apprehension of a breach of the peace and on the 31st March 1908, proceedings u/s 145 of the Code of Criminal Procedure were initiated by the Sub-divisional Officer of Sitamarhi. By his orders, dated the 20th May 1908, and 30th May, 1908, respectively, the learned Sub-divisional Officer held that none of the parties was in possession of the properties which are set out in Schedules 2 and 3 of the plaint, and he accordingly attached those properties u/s 146 of the Code. Certain proceedings then took place which will be considered hereafter. The present suit was instituted on the 8th March 1920, to try the question of succession to the estate of Krishna Pertap Inder Narain Singh.

Before proceeding further, it will be convenient to set out that portion of the genealogical tree which is admitted by all the parties before us.

(For genealogical tree see p. 63)

2. The family belongs to what is known as the Sursand Raj family; and it is a remarkable fact that, on the pedigree as set out, and which is the pedigree which was supplied to us by the plaintiffs, there were no agnatic relations of Krishna Pertap Inder Narain Singh living at the date when the succession opened out, that is to say, at the date of the death of Mulukrani Kuer. The plaintiffs accordingly claim to succeed as the nearest bandhus of Krishna Pertap; but it is to be noticed that, if we accept the case of the plaintiffs, Sarju Prosad, the son of Parmeshwari Kuer, was the nearest bandhu living at the date of the death of Mulukrani Kuer. There were disputes between the plaintiffs amongst themselves during the proceedings before the Sub-divisional Officer of Sitamarhi; but they have composed their differences and now claim a joint decree as against the defendants.

The claim is resisted by Chandreswar Prosad, cited as Defendant 25 in this action (appellant in First Appeal 39 of 1923) as also by Ashrafi Singh and others, cited as defendants first party (appellants in First Appeal 132 of 1923). Chandreswar Prosad claims to have been adopted by Krishna Kishore Narain Singh on the 11th June 1905, in dattaka form and it is conceded that he is entitled to succeed to the estate in suit provided that he makes good his assertion that he was so adopted by Krishna Kishore. The defendants first party allege that they are the agnatic relations of Krishna Pertap Inder Narain Singh and they claim to be his nearest heirs. They rely upon a pedigree which shows that Thanu Jha had two sons, Banwari Jha and Bhagirath Jha and that they are the direct male descendants of Banwari Jha. The plaintiffs do not deny that the defendants first party are the direct male descendants of Banwari Jha, but they deny that Banwari was a son of Thanu Jha. They do not deny that the defendants first party would have a bettor claim than them, provided they made good their assertion that they are the agnatic relations of Krishna Pertap Inder Narain Singh. I may mention that there were disputes between the defendants first party and Chandreswar as to their respective rights in the proceedings before the Sub-divisional Officer of Sitamarhi; but they now accept Chandreswar as the adopted son of Krishna Krishna and admit his title to the estate; but they insist that, should Chandreswar fail in establishing his adoption, the disputed estate should be adjudged to belong to them as their title is superior to that of the plaintiffs.

3. The position then is this if Chandreswar establishes his adoption, then all the other parties must give way to him. If he fails in establishing his case, then the question will arise whether the defendants first party are the agnatic relations of Krishna Pertap Inder Narain Singh If we find in favour of the pedigree upon which they rely, we must dismiss the plaintiffs action. If we find against their pedigree, the plaintiffs, or at all events, Plaintiff No. 3, must succeed; for, although the matter was in issue in the Court below, it is no longer disputed that they are the bandhus of the deceased. The learned Subordinate Judge disbelieved the case as to adoption and refused to act on the pedigree upon which the defendants first party relied. He accordingly gave the plaintiffs a decree substantially as claimed by them.

It will now be convenient to refer to the disputes which have taken place and the proceedings in Court leading up to the present litigation. On a reference to the pedigree it will be noticed that there are five estates comprised within what was originally the Sursand Raj, (1) the estate of Krishna Kishore Narain Singh, (2) the estate of Janki Prosadr which was in the possession of his mother Jagatrup Kuer, (3) the estate of Raja Bishun Pergash Narain Singh which is in the possession of his widow Rani Rajbansi Kuer, (4) the estate of Raja Raghunandan Singh which is now in the possession of Plaintiffs 1 and 2, and (5) the estate of Krishna Pertap Inder Narain Singh which is the estate in suit and which was in the possession of Mulukrani Kuer until her death which took place on the 9th March 1908. So far as the estate of Raja Raghunandan Singh is concerned, no dispute is possible, as that estate is properly in the possession of Plaintiffs 1 and 2 under a Will executed by the deceased Raja. It will be important to remember the name of Golab Kuer in this connexion, for she is the central figure in this litigation. She is the daughter-in-law of Raja Raghunandan Singh and is the grandmother of Plaintiffs 1 and 2, and has made strenuous efforts throughout to secure the other estates for her daughters sons.

4. So far as the remaining four estates are concerned, there are no direct descendants either in the male or female line, and Chandreswar Prosad must succeed to those estates provided he makes good his assertion that he was adopted by Krishna Kishore in the dattaka form. The dispute first arose in connexion with the question of succession to the estate of Krishna Kishore who died on the 16th Noyember 1905. He left a Will by which he devised his estate to his widows Genda Kuer and Dhanwanti Kuer in equal shares with remainder as to the share of each of them, to his adopted son Chandreswar Prosad. There was a distinct assertion in the Will that the testator, in conjunction with Genda Kuer took Chandreswar Prosad in adoption in the dattak form on the 24th Jeyth 1312 (11th June 1905). On the 22nd December 1905, Genda Kuer applied for probate of the will of Krishna Kishore. On the 28th February 1906, a, caveat was entered on behalf of the present defendants first party who claimed to be the agnatic relations of Krishna Kishore and who will be referred to as the gotias throughout this judgment.

Caveats were subsequently entered on behalf of the bandhus including the present plaintiffs. They denied the adoption of Chandreswar Prosad and insisted that the Will was a forgery. It may be mentioned that Chandreswar was the natural son of Sarjug Prosad (erroneously referred to as Sarju Prosad in various places) and the grandson of Debi Prosad, and that Dabi Prosad was the brother of Genda Kuer. The case of the caveators was that the document propounded as the Will of Krishna Kishore was the outcome of a conspiracy between Debi Prosad, Sarjug Prosad and Genda Kuer and that the whole object of the conspiracy was to benefit the family of Debi Prosad. It, may, be mentioned that it was not the case of the caveators that the Will was the result of undue influence exerted on Krishna Kishore by Genda Kuer, Debi Prosad and Sarjug Prosad or any of them.

5. It was realised that, if the adoption was established, Chandreswar Prosad would succeed, not only to the estate of Krishna Kishore but also to the three other estates which have already bean enumerated when the succession to those estates opened out. On the 28th June 1906, an agreement was entered into between the alleged gotias (the defendants first party) of the first part, Satrani Kuer and Fulrani Kuer (the two wives of Ashrafi Singh, Defendant 1) of the second part, and Lachmi Prosad, the son of Jagatrup Kuers sister of the third part, by which Satrani Kuer and Eulrani Kuer and Lachmi Prosad agreed to bear the costs of all the litigations that might ensue, and the gotias agreed to give Satrani and Fulrani 3-annas and Lachmi Prosad 3-annas in the fruit of the victory. It may be mentioned here Lachmi Prosad was the reversionary heir to the estate of Janki Prosad, which was then in the possession of Jagatrup Kuer, if Chandreswar Prosad failed to establish his adoption, and the gotias failed to establish their pedigree. By the agreement of the 28th June 1906, Lachmi Prosad seems to have accepted the title of the gotias and agreed to join his resources with those of the gotias against Chandreswar Prosad and against the other bandhus. The agreement of the 28th June 1906, may be referred to as the first gotia agreement.

On the 30th July 1906, a similar agreement was entered into on behalf of some of the bandhus. The parties to this agreement were Harnandan and Brijnandan of the first part, and Ramdulari, the mother of Plaintiffs 1 and 2 of the second part. It may be mentioned here that although Chandreswar would be entitled to succeed to all the estates if he proved his adoption and the gotias would be similarly entitled to succeed to, all the estates, if they established their pedigree and repelled the claim of adoption, the bandhus to succeed to each estate would be different. In the absence of Chandreswar and the gotias, the nearest heir to the estate in suit is Bidya Prosad, Plaintiff No. 3; the nearest heir to the estate of Janki Prosad is Lachmi Prosad: and the nearest heirs to the estate of Baja Bishun Pergash are Harnandan and Brijnandan. It will be noticed that Plaintiffs 1 and 2 have no possible interest in any of the estates; and yet we find them through their mother, Ramdulari entering into the agreement of the 30th July 1906, by which they agreed to bear 9-annas share of the expenses in return for 9-annas share of the properties that might be gained through their joint efforts.

6. Meanwhile the probate proceedings went on before the District Judge of Muzaffarpur and the caveators made a determined effort to bring into controversy the question of the adoption of Chandreswar Prosad. The applicant got a statement from one of her witnesses that "the deceased adopted Chandreswar as dattak putra," and having done that, she stated to the Court that the question of adoption did not legitimately arise in the probate action and that "she was not prepared to adduce any further evidence as to the factum of adoption."

The Court thereupon intimated to her pleader that there was no onus upon him to prove the adoption, but that the factum of adoption may be challenged by the caveators, the question being material under the second issue. The learned District Judge obviously took the view that the question of adoption did not directly arise in the probate proceedings and was material only as bearing upon the genuineness of the Will. It appears that the caveators cross-examined the witnesses produced on behalf of the applicant on the question of adoption and adduced evidence in support of their case that the adoption did not take place. On the 28th July 1909, the District Judge delivered judgment holding that the Will was genuine and granted probate of the Will to Genda Kuer. The caveators appealed to the Calcutta High Court, and on the 29th August 1913, the Calcutta High Court reversed the decision of the District Judge. An appeal to the Privy Council followed, and by its judgment, dated the 29th February 1916, the Judicial Committee reversed the decision of the Calcutta High Court and restored that of the District Judge. On the question now before us, the Judicial Committee said as follows:

Although the question as to the alleged adoption is not one which could be excluded from consideration by a Court when considering whether it is probable that the Will is a genuine Will or a fabrication, it could not be tried as a material and vital issue on an application for a grant of probate, the necessary parties to such an issue not being before the Court. Further, a finding either for or against the adoption would not be decisive as to whether the Will which was propounded was a genuine Will or a fabrication. The District Judge before whom the application for a grant of probate first came rightly declined to frame an issue as to the alleged adoption.

The caveators were, however, not precluded from questioning the adoption of Chandreswar Prosad. They cross-examined at great length and very fully some of the appellants witnesses on the subject, and they called evidence in an attempt to disprove the alleged adoption. Their Lordships have been pressed to take into their consideration, on the question as to whether the Will is a genuine Will or a forgery, the evidence as to the adoption. All that their Lordships need say is that, having regard to the evidence brought out by the cross-examination of witnesses for the appellant, and having regard to the evidence of the witnesses who were called by the caveators to prove that Chandreswar Prosad was not adopted, they see no reason to doubt that Chandreswar Prosad was adopted by Krishna Kishore.

7. The probate proceedings terminating in the decision of the Privy Council determined, once for all, the question of succession to the estate of Krishna Kishore.

Meanwhile Mulukrani died on the 9th March 1908, and the question of succession to the estate in dispute arose in a serious form. On the 24th March, the police reported that a breach of the peace was likely to occur, and, on the 31st March 1908, proceedings u/s 145 of the Criminal P.C., were initiated by the Sub-divisional Officer of Sitamarhi. He held that the properties which are set forth in Schedules 2 and 3 of the plaint were not in the possession of any of the parties, and he accordingly attached them u/s 146 of the Code. The properties detailed in Schedules. 1 and 4 of the plaint were not the subject-matted of the proceedings before the Sub-divisional Officer of Sitamarhi.

A civil suit was now imminent; and the gotias (defendants first party) entered into another agreement on the 14th April 1911, to enable them to find money for the litigation. It will be remembered that they had entered into an agreement on the 28th June 1906, with Satrani Kuer and Fulrani Kuer of one part and Lachmi Prosad of the other part by which Satrani and Fulrani agreed to bear 8-annas share of the expenses of the litigation in. return for 3-annas share of the properties and Lachmi Prosad agreed to bear the remaining 8-annas share of the expenses in return for 3-annas share of the properties. The parties to the agreement of the 14th April 1911, were the gotias of the first part, Satrani and Fulrani of the second part and Golab Kuer (the grandmother of Plaintiffs 1 and 2) of the third part. By this agreement Satrani and Fulrani took Rs. 10,000 from Golab Kuer and assigned their interest to Golab Kuer, Golab Kuer agreeing to bear 8-annas share of the expenses in return for 3-annas share of the properties. The agreement of the 14th April 1911 may, be referred to as the second gotia agreement.

8. On the 18th May 1911, a suit (being Suit No. 176 of 1911) was instituted by the gotias, the present Defendants 1 to 5, and Golab Kuer on the footing of the agreement of the 14th April 1911, against Chandreswar Prosad and the bandhus for possession of the estate of Krishna Pertap Inder Narain Singh, that is to say, the estate now in suit, on adjudication of their title as gotias. For some reason or other this suit was not heard till the 14th January 1919, when a petition of compromise was filed on behalf of Plaintiffs 1 to 5 (that is to say, the present defendants first party) and Chandreswar Prosad. By this petition, the gotias admitted the title of Chandreswar as the adopted son of Krishna Kishore, and Chandreswar admitted the title of the plaintiffs as the gotias. It will be noticed that Golab Kuer was not a party to the compromise. The learned Subordinate Judge took up the case on the 20th January 1919, when the Plaintiffs 1 to 5 offered to give evidence in support of their pedigree as against the bandhus, The learned Subordinate Judge properly disallowed the prayer holding that, on their own admission of the superior title of Chandreswar Prosad, they could not succeed in the action; and, as Golab Kuer adduced no evidence whatever, the learned Subordinate Judge dismissed the suit. The judgment is Ex. 9.

Meanwhile Jagatrup Kuer died on the 14th June 1917. It will be remembered that she was in possession of the estate of Janki Prosad, and, on her death, the question arose as to the succession to that estate. Proceedings were initiated in the Court of the District Judge of Muzaffarpur under the Curators Act, Act 19 of 1841, to determine summarily the right to, possession of that estate. The claimants were: (1) Chandreswar Prosad, claiming as the adopted son of the nearest male agnate of Janki Prosad; (2) the present defendant first party, claiming as the agnates of Janki Prosad, and (3) the present Plaintiffs l and 2, claiming as the nearest bandhus of Janki Prosad. It was admitted that if Chandreswars case that he was adopted by Krishna Kishore was true, he was entitled to possession. The learned Judge thought that the finding of the Judicial Committee as to the adoption of Chandreswar Prosad in the probate action was by itself sufficient to enable him to accept the claim of Chandreswar; and relying on the decision of the Judicial Committee, he held that the right to possession was with Chandreswar Prosad and directed that the possession of the estate be delivered to him through his guardian Genda Kuer on her furnishing security to the value of Rs. 1,00,000. The order of the District Judge was challenged by a revision application to the High Court; but the High Court by its order, dated the 20th August 1917, declined to interfere.

9. Now the order passed by the District Judge only operated as an order pendente lite, that is, pending any civil suit that might be brought; and, on the 13th September 1917, a suit, being Suit No. 307 of 1917, was instituted by the present Plaintiffs 1 and 2 against Chandreswar Prosad and the gotias claiming title to the estate of Janki Prosad. It was objected that the plaintiffs to that suit had no cause of action as Harnandan was a nearer gotia. The plaintiffs presented an application for amendment of the plaint which was refused; and thereupon, on the 9th October, 1920, the plaintiffs asked for leave to withdraw the suit with liberty, to bring another suit. The leave was granted, and the suit was withdrawn on the 9th October 1920; but it is noteworthy that a fresh suit, has not yet been instituted with reference to the estate of Janki Prosad which is still in the possession of Chandreswar Prosad.

I have already referred to Suit No. 176 of 1911, which was a suit by the gotias and Golab Kuer against Chandreswar and the bandhus to try the question of succession to the estate now in dispute. That suit failed because the gotias admitted the title of Chandreswar Prosad. The present suit was instituted on the 8th March 1920, by the bandhus against the gotias and Chandreswar for declaration of their title to, and for recovery of possession of, the estate of Krishna Pertap Inder Narain Singh. The learned Subordinate Judge has decided all the material issues in favour of the plaintiffs and has given them a decree substantially as claimed by them. Both Chandreswar and the gotias appeal against the decision of the learned Subordinate Judge; the appeal of Chandreswar being F.A. 39 of 1923 and the appeal of the gotias being F.A. 132 of 1923.

10. F.A. 132. I will first consider F.A. 132 of 1923, which is the appeal of Ashrafi Singh and others, defendants first party. The question is, whether the appellants are the agnatic relations of the deceased Krishna Pertap Inder Narain Singh. They do not produce any authentic pedigree in support of their case; but there is a large body of oral evidence which has been considered by the learned Subordinate Judge. According to them Thanu Jha had two sons, Banwari Jha and Bhagirath Jha and they are the direct male descendants of Banwari Jha and therefore the agnatic relations of Krishna Pertap Inder Narain Singh who was the direct male defendant of Bhagirath Jha.

The plaintiffs deny not only the agnatic relationship between the Sursand family and the defendants first party, but any relationship. It is their case that Ashrafi Singh was a cook in the employ of Mulukrani and that soma of the other defendants constituting the defendants first party were servants in the employ of the different members of the Sursand family. I will set out such portion of the family tree relied upon by the defendants first party as is necessary for the understanding of the evidence.

11. As I have said, there is a considerable body of oral evidence on both sides. The learned Subordinate Judge has considered that evidence and has found against the appellants. I am of opinion that we would not be justified in differing from the trial Court on a simple question of fact unless the documentary evidence and the surrounding circumstances clearly contradict the finding of that Court. This position was accepted by Mr. Mullick on behalf of the appellants; and he confined his arguments mainly to the documents and contended that the evidence furnished by the documents Strongly corroborates his oral evidence and refutes that of the plaintiffs respondents.

It is necessary, then, to see how the documents affect the respective position taken up by the parties. I will first consider Exhibit TT series, which consists of depositions of witnesses in two suits brought by Krishna Kishore to have certain alienations made by his father set aside.

Depositions of witnesses taken by an officer of the Court are public documents I within the meaning of that term as used in Section 74 of the Evidence Act, and Section 65. provides that when the original is a public document, a certified copy of document, but no other kind of secondary evidence, is admissible.

But Section 65 also provides that any secondary evidence of the contents of the document is admissible when the original has been destroyed or lost. The appellants have proved by the evidence of Sharfuddin Ahmad, a Court officer, that the original depositions have been destroyed "under the rules," and they have therefore not been able to produce certified copies of those depositions. Mr. Sultan Ahmad, on behalf of the resw pondents, contended that the rule as to the production of any secondary evidence does not apply to the case of a public document, in which case,

a certified copy of the document but, no other kind of secondary evidence, is admissible.

12. If this argument be well founded, then it is obvious that the Legislature has made no provision for cases in which the original is a record of a Court of justice, and, therefore, a public document, which has also been lost or destroyed. In my opinion, the rule laid down in Section 65 that a certified copy is the only secondary evidence admissible when the original is a public document does not apply where the original has been lost or destroyed. This was the view taken by the Madras High Court in Mt. Kaladon v. Kunhunni Ridavu [1883] 6 Mad. 80 and, I think, by implication, by the Privy Council in Haranund Roy Chetlangia v. Ram Gopal Chetlangia 1900 27 Cal. 639. In the former case, it was pointed out by the Court that the rule upon which Mr. Sultan Ahmad relies.

applies to the case in which the public document is still in existence on the public records and is a provision intended rather to protect the originals of public records from the danger to which they would be exposed by constant production in evidence, than, to interfere with the general rule of evidence given in Clause (c) of the same section that secondary evidence may be given when the original has been destroyed or lost.

13. In the latter case the question was whether the deposition of the party taken in a foreign Court was in the circumstances, receivable as evidence. An official of the foreign Court was examined and he produced a document which he swore was a copy of the deposition and in the handwriting of one of the Court amlas. That copy was endorsed "copy corresponding with the original." Now the question debated was whether the copy was receivable in evidence without notice to the adverse party u/s 66 of the Evidence Act. This seems to imply that, in the view of the Privy Council, the copy produced was not a certified copy of the original; for the rule laid down u/s 66 applies to Clause (a) only of Section 65 and not to Clause (c). With reference to the argument, the Privy Council pointed out that no notice was necessary as the person in possession of the document was not subject to process. In the result, they thought that the deposition was receivable in evidence. Now if the document produced was not the certified copy of the original, and the argument based on Section 66 was certainly irrelevant if it was considered that the document produced was the certified copy of the original, then it could only have been admitted as "any secondary evidence of the contents of the document." Messrs. Woodroffe and Amir Ali in their well-known work on the Evidence Act have certainly taken this view of the decision of the Privy Council.

The next question is whether there is sufficient proof of the contents of the original deposition. The appellants have produced the paper-books prepared in regular Appeal No. 261 of 1869 and regular Appeal No. 296 of 1875. These paper-books have been marked as exhibits in the case, and the depositions taken from the paper-books, have been separately marked. They have also examined Amar Nath Bose, aged eighty, a Vakil of the High Court of Calcutta. He says, that he "used to make translations in regular appeal cases" and that the paper books were prepared according to the rules of the High Court.

Referring to the paper books in question, he said as follows:

I say that these paper books were authoritively prepared in the High Court. From the endorsement on the fly-leaf of the paper-book in Regular Appeal No. 261 of 1869 I say the vernacular papers were translated by Babu Mahesh Chunder Mitter, printed in the Government Press and edited by an officer of the Court. In Regular Appeal No. 296 of 1875 the vernacular papers were translated by Sayed Tajamul Hossain, printed in the Government Press and edited by an officer of the Court, Mr. McMahon.

14. He had previously said that both Mahesh Chunder Mitter and Tajamul Hossain are now dead. The question is whether this evidence is sufficient to prove the depositions produced by the appellants. The learned Subordinate Judge was satisfied with the proof, and I see no reason to differ from him on this point. (Then his Lordship considered certain depositions and held that Krishna Kishore had relations named Busti Jha, Parmessary Jha, Harlal Jha and Modi Jha and proceeeded.) They certainly rebut the case of the plaintiffs that they are no relations at all, but beyond that, they establish nothing at all. All these names will be found in the pedigree upon which the defendants rely.

I now come to Exhibit BB which is the deposition of Uchit Jha taken on the 26th May 1903, in certain land registration proceedings. Mohunt Mithila Saran as the head of the Nawahi Mutt had applied for registration of his name in respect of certain lands on the allegations that Ram Anugrah Singh had made a gift of that land to the Mutt. The application was supported by Mt. Jagatrup Kuer, the widow of Ram Anugrah, but opposed by Awadh Bihari Singh, the son of Ram Anugrah, and the stepson of Jagatrup Kuer. On a reference to the pedigree it will be noticed that Ram Anugrah was the brother of Bhagwat Narain who was the father of Krishna Kishore. Uchit Jha gave evidence on behalf of the mohunt in the land registration proceedings. He said that Ram Anugrah was his gotia five or six generations removed. He could not, however, give the name of the common ancestor.

15. The importance of this evidence is that it was given at a time when both Awadh Bihari and Krishna Kishore, were alive and therefore when there was no question of succession to any of the Sursand estates. Uchit Jha described himself as the son of Harlal Jha and in distinct terms claimed agnatic relationship with Ram Anugrah and therefore with Krishna Pertap Inder Narain Singh at a time when there was no motive to put forward a false claim. The learned Subordinate Judge rejected the evidence on two grounds; first, on the ground that he could not give the name of the common ancestor; and, secondly, on the ground that his evidence was not accepted by the Court. I confess that I am not impressed by either of the grounds put forward by the learned Subordinate Judge for rejecting the evidence. It is consistent with the common course of natural events for persons to name other persons as their gotias without being in a position to say who their common ancestors may have been. As regards the second ground, I have no doubt whatever that the opinion of the Land Registration Court upon the character of Uchit Jha is not admissible in evidence; for we have no materials for judging whether Uchit Jha was rightly disbelieved or wrongly disbelieved: [See Pasumatary Juggappa, In the matter of, an insolvent [1899] 4 C.W.N. 684 and Seaman v. Netherclift [1878] 2 C.P.D. 53. Section 158 of the Evidence Act provides that whenever any statement, relevant under Sections 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. Now could the fact that he was disbelieved in the Land Registration case be put to Uchit Jha if he were alive and had been called as a witness on behalf of the appellants I think not; for the question whether, a witness is entitled to credit or not must be decided by a Court on the evidence before it, and not on what another Court thought of the witness in another case. If I am right in this view, as I think I am, the judgments in the Land Registration case could not be put in to impeach the credit of Uchit Jha. Section 155 read in the present case with Section 158 of the Evidence Act prescribes the different ways in which-the credit of a witness may be impeached. They are;

(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit,

(2) by proof that the witness has been bribed or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence.

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

It is clear to my mind that, had Uchit Jha been called as a witness on behalf of the appellants, the decision in the Land Registration case could not be put to him to shake his credit; for the decision may have been erroneous; and it obviously does not stand on the same footing as

the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit.

16. Persons called to discredit a witness are liable to be cross-examined; but there are no means of judging whether a finding as to the credibility of a witness in another proceeding is a right finding, or not. In my opinion, therefore, the judgments in the Land Registration case were not admissible in evidence to impeach the credit of Uchit Jha.

But what actually did the case decide as to the credibility of Uchit Jha There are two judgments in the same proceeding the judgment of the Collector, dated the 4th August 1903, and the judgment of the Commissioner on appeal, dated she 31st May 1904. The Collector dismissed the claim of the mohunt on the ground that, as Awadh Bibaris name had stood in the register for over eighteen years, the mohunt could not succeed merely on the allegation of a verbal gift made to him as, in his opinion,

in the absence of any registered deed which the law requires it is impossible to say that the applicant has even a prima facie title.

There is not one word in the judgment of the Collector to throw any discredits on the witness examined on behalf of the mohunt. The Commissioner, in appeal, went a little further. He said:

the family priest and the old servants have probably been gained over.

He referred to a judgment of the District Judge in another proceeding to show that Jagatrup and the mohunt were in league against Awadh Bihari; and he thought, even if the oral gifts were believed, it was impossible to believe that the mohunt got possession. This is all. There is no reference whatever to Uchit Jha, although it may be said that as an old servant, he came within the sweeping generalization that the old servants have "probably" been gained over. There is certainly no indication in the judgment that the Commissioner directed his mind to the question whether Uchit Jha was speaking the truth when he said that he was gotia of Ram Anugrah. How can it then be said that his evidence on this point was disbelieved by the Court In my opinion, the statement of Uchit Jha made on the 26th May 1903, at a time when both Awadh Bihari and Krishna Kishore were alive and therefore made before the question in dispute was, or could be, raised, constitutes important evidence on behalf of the appellants. It is not denied that if Uchit Jha be a gotia of the Sursand family, the defendants first party are all gotias of the family.

17. Exhibit TT series may again be considered in the light of Exhibit BB. The statements which constitute Exhibit TT series were made in 1869 and 1875. I have said that they establish that Busti Jha, Permessary Jha, Harlal Jha, Modi Jha are relations, but that they are not agnatio relations of Krishna Kishore. Exhibit BB, in my opinion, establishes that Uchit Jha is an agnatic relation of Ram Anugrah and therefore of Krishna Kishore. Now it is not denied that Uchit Jha, Busti Jha, Parmeasary Jha, Harlal Jha and Modi Jha are agnatic relations of each other. Exhibit TT series, therefore, read with Exhibit BB, lend strong support to the case of the appellants.

The next document is Exhibit DD which is an application of Jagatrup Kuer for letters of administration with the Will annexed in respect of the estate of her stepson Awadh Bihari. This application was presented on the 29th October 1903. The application was opposed by Krishna Kishore who was the next heir of Awadh Bihari and who contended that the Will was a forgery. The Court, of Probate found in favour of Krishna Kishore and rejected the application of Jagatrup Kuer. We are, however, not concerned with the result of the application. The third paragraph of the petition gave the names of Dwarika Jha, Uchit Jha, Thithar Jha, Thug Jha, Harbans Jha and Bhagwan Dutt Jha, as, the "near relations" left by Awadh Bihari. Jagatrup Kuer is now dead; and Mr. S.M. Mullick lays considerable stress upon the statement as to the relationship contained in this petition. It is not open to doubt that Jagatrup Kuer had special means of knowledge as to the relationship and that the statement is undoubtedly admissible u/s 32(5) of the Evidence Act. The statement was, however, challenged by Krishna Kishore who, in his petition of objection, filed on the 10th December 1903, stated as follows:

That the objector denies that Dwarika Jha, Uchit Jha, Thithar Jha, Thug Jha, Harbans Jha and Bhagwan Dutt Jha relatives of the deceased and submits that some of them are the servants of the said applicant.

18. Mr. Sultan Ahmad contends that if the statement of Jagatrup Kuer is admissible u/s 32 of the Evidence Act, so is the statement of Krishna Kishore and that the statement of Krishna Kishore is entitled to the same weight as that of Jagatrup Kuer. Mr. S.M. Mullick draws our attention to the fact that the petition of Krishna Kishore is not signed by him but by his vakils, Jogendra Chandra Mukerji, Syed Ahmad Hussain and Ram Saran Lai, and he contends that the statement as to the relationship contained in this petition ought not to be regarded as the statement of Krishna Kishore. I am unable to assent to this argument. It is quite true that the petition does not bear the signature of Krishna Kishore; but the petition was filed on his behalf by his vakils and must be regarded as his petition. The Court of Probate acted on this petition and ultimately rejected the application of Jagatrup Kuer. Some importance must accordingly be attached to the petitions of Krishna Kishore and it must be weighed along with the other evidence in the case to help us to decide the issue as to the relationship.

The next document upon which Mr. S.M. Mullick relies is a case for opinion submitted to Sir Eash Bihari Ghosh and Golap Chandra Sarkar on behalf of Rani Mulukrani Kuer referred to in thecase as "Rani Soorsar." This document was rejected by the learned Subordinate Judge and has not been printed in the paper-book. There is a clear statement in the case for opinion that Ashrafi Sinah is a gotia of the Sursand family; but the questions are first, whether the document is admissible in evidence; and, secondly, what weight should be attached to the document.

19. The circumstances under which the opinion was taken were these Krishna Kishore who was the immediate reversioner of Krishna Pertap Inder Narain Singh expectant upon the death of Mulukrani Kuer found himself in financial difficulty during the proceedings in connection with the application of Jagatrup Kuer for letters of administration to the estate of her stepson. He applied to Mulukrani Kuer for a loan of Rs. 40,000. Now Ashrafi Singh Defendant No. 1 had been brought up by Mulukrani Kuer in her house and was an object of bounty on her part. She wss willing to give Rs. 40,000 to Krishna Kishore on his agreeing to release a portion of the estate of which he was the reversioner and which was in the possession of Mulukrani in favour of Ashrafi Singh. There was some controversy in those days as to whether a widow could release a portion of the estate in favour of the next reversioner and the opinion of counsel was taken on the point. The following passage in the case for opinion is material:

It may be mentioned hare that this family is governed by the Mitakshara schcol of the Hindu Law, but this branch does not with the other branches form a Hindu joint family. There are now living one Kissen Kishore, Ashrafi Singh and four other persons marked (1), (2), (3) and (4) in the pedigree hereinafter set out belonging to the said family. Kissen. Kishore is Kissen Prataps great-great-grandfathers great grandson and Ashrafi Singh and the four other persons are Hissen Prataps great-great-grandfathers great-grandfathers great-great grandsons sons.

Rani Soorsar who is desirous of making some provision for the said Ashrafi Singh has made the following arrangement with the said Kissen Kishore who appears to be the next reversioner expectant on the death of the said Rani namely that the Rani will execute a release of a portion of the said estate in her possession in favour of the said Essen Kishore and he in his turn in consideration of Rs. 40,000 to be so paid to him will execute a conveyance of the said portion to be released as aforesaid (the value whereof is far in excess of the said sum of Rs. 40,000) in favour of the said Ashrafi Singh. Learned vakils opinion is now sought on the following points," and the points are then enumerated.

20. There is no doubt whatever that the document is of considerable value to the appellants; for the relationship, as therein set out is exactly the relationship which is claimed by Ashrafi and the others, the appellants in this appeal; but the important question is whether this document is admissible in evidence. (Then after considering evidence his Lordship proceeded.) The evidence of these three witnesses, Subodh Chandra Mitter, Ashrafi Singh and Pandit Subhalal Jha, establishes the following facts:

1. Krishna Kishore being in need of money applied to Mulukrani Kuer for a loan of Rs. 40,000. He sent Khakhan Jha to Mulukrani to negotiate the loan on his behalf.

2. Mulukrani was willing to give Rs. 40,000 to Krishna Kishore on condition of his releasing a portion of the estate in favour of Ashrafi. Her agent in the matter of the negotiation was Subalal Jha.

3. Babu Ram Mohan De, pleader of Benares, was consulted in the matter and he sent Khakhan Jha and Subalal Jha to Babu Subodh Chandra Mitter with a letter giving all the facts relevant to the case.

4. Khakhan Jha took with him a kursinama of the family from Krishna Kishore.

5. Babu Subodh Chandra Mitter drew up a case for opinion either on the letter written to him by Babu Ram Mohan De or on the instructions given to him by Subalal Jha and Khakhan Jba. That case for opinion contains a definite statement that Ashrafi is a gotia of Krishna Pertap Inder Narain Singh.

6. In the result Mulukrani and Krishna Kishore settled property upon Ashrafi Singh.

In my opinion the, case for opinion is admissible in evidence. It is inseparably connected with the evidence of these three witnesses. Babu Subodh Chandra Mitter was undoubtedly acting on behalf of both Rani Mulukrani and Krishna Kishore. He undoubtedly acted on the instructions given to him in the course of business. In taking the opinion of counsel it was necessary to set out the names of all the reversioners; for one of the questions asked was,

whether the transfer would be valid as against the actual reversioners uponthe deathof the Rani.

The statement must be ragarded as the statement both of Mulukrani Kuer and of Krishna Kishore, especially as we have it clearly established that Khakhan Jha took with him a kursinama from Krishna Kishore. The learned Subordinate Judge rejected the document. The ground given by him for such rejection may be stated in his own words:

It is inadmissible in evidence there being nothing to show that pedigree was supplied by Mulukrani Kuer or Krishna Kishore and the original having not been filed. It is rejected.

21. In saying that there is nothing to show that the pedigree was supplied by Mulukrani Kuer or Krishna Kishore, the learned Subordinate Judge is obviously in error. There is evidence of Ashrafi Singh and Subalal Jha to the effect that Khakhan Jha took a kursinama from Krishna Kishore. It is quite true that the original pedigree has not been filed; but the appellants are not seeking to prove a copy of the original which was taken to Subodh Chandra Mitter by Khakhan Jha. They rely upon the statement embodied in the case for opinion which, if believed establishes beyond tdoubt that Ashrafi Singh is an agnatic relation of Krishna Pertap Inder Narain Singh. I regard the statement in the case for opinion as the statement of Mulukrani Kuer and Krishna Kishore. Babu Subodh Chandra Mitter was acting on their behalf and his statement in the discharge of his duty, and within the scope of his authority must be regarded as a statement of the persons on whose behalf he was acting. What is said or done by Babu Subodh Chandra Mitter in the course of his business and within the scope of his authority is said or done by Mulukrani Kuer and Krishna Kishore through him as their mere instrument. We have accordingly admitted the document in evidence in this Court.

In my opinion the value of this document is enormous. There was no object whatever for putting forward a false claim at that time since Krishna Kishore was still living. Both Mulukrani and Krishna Kishore are parties to the statement of the case for opinion and they are certainly persons who have special means of knowledge as to the relationship between Ashrafi Singh and themselves. (Then after referring to certain docuementary evidence and holding that it is overwhelmingly in favour of the appellants and that the defendants-appellants have established their case that they are the gotias of Krishna Pertap Inder Narain Singh and are entitled to succeed to the estate in preference to the plaintiffs, his Lordship proceeded). Whether they are entitled to succeed to the estate must however depend on the question whether Chandreswar Prosad has established his case that he was adopted in the dattak form by Krishna Kishore. But on this finding the plaintiffs suit fails and I allow the appeal with costs payable by the plaintiffs to the defendants first party both in this Court and in the Court below. (Then his Lordship proceeded to deal with F.A. 39/23).

22. F.A. 39, 23. The plaintiffs contest the case of Chandreswar on every point. First they say that the case of adoption is wholly false and that the case was set up by Genda Kuer in collusion with her brother Debi Prosad and his son Sarjug Prosad in order to benefit the family of Sarjug Prosad; secondly, they say that the day when the adoption is alleged to have taken place was an inauspicious day and that it isunlikely that the adoption could have taken place on that day; thirdly, they say that the boy was over five years of age and that the adoption was invalid in law; and fourthly, they say that Krishna Kishore was governed by Mithila Law and that dattak adoption, was inadmissible in his case. A further point was taken in this Court on behalf of the plaintiffs to the effect that assuming that dattak adoption was permissible in his case, it did not, in the school of Law he was subject, give him the right of collateral succession. In their evidence they deny that Chandreswar Prosad performed the Sradh of Jagatrup Kuer or that of Genda Kuer and that his Janao ceremony or the ceremonies connected with his two marriages took place in Sursand.

I will first deal with the question whether the adoption in fact took place. The evidence on this point falls under five different heads first, the statement. of Krishna Kishore in his Will to the effect that Chandreswar Prosad was his dattak son; secondly, evidence showing that the adoption was accepted as a fact in various proceedings and by the relatives; thirdly, evidence constituting the declaration of Krishna Kishore that he intended to adopt the boy and his treatment of the boy from the 4th January up to the date of adoption; fourthly, evidence showing the preparations made for the adoption, and, fifthly, evidence of the actual adoption.

23. Mr. P.K. Sen on behalf of the appellant contends that the statement of Krishna Kishore in the Will is sufficient in itself to prove the adoption. The Will is dated the 15th November 1905, and the statement upon which reliance is placed is as follows:

I, the declarant, have at present two wives, namely, Dulhin Genda Kuer and Dulhin Dhanwanti Kuer, and a dattak son Babu Chandreswar Prosad Narain Singh alias Paramhansji, living. For some time past I kept the said dattak son with me and brought him up and maintained him, and in consultation with and with the consent of the two wives, I with my first wife took him in adoption in the dattak form on the 24th Jeth, 1312, Fs. from Babu Sarjug Prosad Narain Singh, father of Babu Chandreswar Prosad Narain Singh alias Paramhansji aforesaid, according to the Shastra after the performance of the dattak homa, etc., with all attendant rites.

24. The Will then proceeded to appoint his eldest wife Genda Kuer the executrix of the Will and the guardian of his adopted son and (subject to the provision for maintenance, education, Janao, marriage, etc., of his adopted son) to devise his estate in equal shares to his two widows with remainder with regard to the share of each of them to his adopted son. Mr. P.K. Sen contends that the statement of Krishna Kishore is admissible u/s 32 of the Evidence Act and that it is sufficient in itself to prove the adoption. It is obvious that the plaintiffs-respondents took a very serious view of the statement in the Will as to the adoption of Chandreswar Prosad. Krishna Kishore died on the 16th November 1905, and Genda Kuer applied for probate on the 22nd December 1905. Caveats were entered on behalf of the present plaintiffs or their predecessors in title. The caveators questioned the adoption in those proceedings. The learned District. Judge intimated that there was no onus upon Genda Kuer to prove the adoption, but that the factum of adoption might be challenged by the caveators, the question being material on the issue as to the due execution of the Will by the testator; In pursuance of this direction the caveators cross-examined the witness called on Behalf of Genda Kuer at great length on the question of adoption. They also produced evidence to establish that the adoption, did not in fact take place. On the 28th July 1909, the learned District Judge, granted probate of the Will to Genda Kuer. The Calcutta High Court reversed the decision of the learned District Judge on the 29th August 1913, and the Privy Council, on the 29th February 1916, restored the decision of the learned District Judge. On the question which I am now considering the Privy Council said that it had no reason to doubt that the adoption was in fact made.

25. The first question is whether the statement has been properly proved. It is not disputed that it is admissible u/s 32 of the Evidence Act; but it is contended that there is no proof in the record of this case that the statement upon which reliance-is placed is that of Krishna Kishore. It is quite true that the appellant has not, called any witnesses in this case to prove the due execution of the Will by Krishna Kishore; but he has produced the probate granted by the learned District Judge and he contends that the probate is conclusive proof as to the due execution of the Will by the testator. Section 91, Exception 2, of the Evidence Act provides that Wills admitted to probate in British India may be proved by the probate. Mr. Manuk, on behalf of the respondents, contends that probate is conclusive proof only in regard to the legal character to which it declares any person to be entitled and the actual dispositions made in the Wilt which the decree of the probate Court, declares to have been made by the testator; and that anything beyond these did not fall to be considered by the Court of Probate and cannot be said to have been conclusively determined. It was contended, in other words, that probate is conclusive proof of the execution of the dispositive portion of the Will and of that portion by which an executor is appointed; and that the statement relied upon by the appellant, being in a collateral matter which was irrelevant, to the grant itself, cannot be proved by the production of the probate.

In my opinion there are three conclusive answers to this argument. I entirely agree that a finding not essential to the judgment in the probate action cannot be said to operate as a finding in rem. For this reason I am of opinion that the finding of the Judicial Committee that there was no reason to doubt that the appellant was duly adopted by Krishna Kishore must be disregarded by us. If there had been no such finding or if the finding had been the other way, it might equally well have been the case that the Judge was bound to grant probate of the Will to the executor; but, at the same time, all that is essential to the decision that the executor was entitled to probate must be taken to have been conclusively determined. Now the due execution of the Will is the foundation of the title of the executor. For the purpose of this question we are not concerned with the truth of the statement made by the testator but with the question whether the statement was in fact made. The caveators challenged the Will as a forgery: and one of the grounds put forward by them was that the story as to adoption was wholly false and that the statement in the Will as to the adoption could not be the statement of Krishna Kishore. The trial Judge allowed the caveators to cross-examine the witnesses called on behalf of the executors at great length on the question of adoption and to call witnesses in support of their case that the adoption did not take place as he considered that the question was material on the issue as to whether the Will which was propounded was a genuine Will or a fabrication. In my opinion, the question whether the statement was the statement of the testator was involved in the issue as to whether the Will was duly executed by the testator.

26. Secondly I consider that the statement as to the adoption cannot be separated from the dispositive portions of the Will. It is fundamentally related to those portions which were concerned with the actual dispositions of the property. It was contended by Mr. Manuk that although in the earlier paragraph the testator makes a very elaborate statement as to the adoption of Chandreswar Prosad, he does not refer to him as his adopted son in the dispositive portions of the Will. A careful scrutiny of the Will does not support this argument. Chandreswar Prosad has been already described as his dattak son in the first paragraph of the Will Thereafter he is always referred to as:

Babu Chandreswar Prosad Narain Singh alias Paramhanaji aforesaid.

The word "aforesaid" indicates that he was throughout referring to him as his dattak son.

27. Now how can the description of Chandreswar Prosad as his dattak son be separated from the dispositive portions of the Will The testator is making provisions for the maintenance, education, janao, marriage, etc., of his adopted son. He is making provision for his guardianship during his minority. Now it was quite impossible for the testator to make provision for his guardianship unless be were his son. A person may confer bounties on anyone he chooses, but he has no right whatever to appoint a guardian over the person and property of that person unless he happens to be the father of the boy. In my opinion, it is quite-impossible to separate the various statements in the Will regarding Chandreswar Prosad from the dispositive portions of the will. I hold that the finding of the Court of Probate that the Will was duly executed by the testator is a finding in rem and operates as against the world; and that the Will so executed includes, as an intrinsic part thereof, the declaration by the testator that Chandreswar alias Paramhansji was the testators adopted son.

28. In the third place it is not open to doubt that the finding as to the execution of the Will binds at any rate the parties and privies to the probate proceedings. It is objected, however, that the Plaintiffs 2 and 3 were not parties to those proceedings. There is no difficulty so far as Plaintiff No. 2 is concerned. He is the younger brother oft Plaintiff No. 1 who was one of the caveators and who substantially represented the interest of Plaintiff No. 2. So far as Plaintiff No. 3 is concerned, the position is this: his father was one of the caveators but he died during the pendency of the probate proceedings. Plaintiff No. 3 thereupon applied for substitution. His application was however rejected on the ground that he had no locus standi. It is on this ground that it is contended that the decision of the probate Court if it does not operate as a decision in rem, cannot be said to be binding on Plaintiff 3.

29. In my opinion, however, Plaintiff No. 3 is bound in the same way as the other plaintiffs are bound. (Then after dealing with evidence his Lordship held that the Plaintiff No. 3 is bound by the finding of the probate Court as to the execution of the Will as much as the other plaintiffs who were parties there and proceeded). Mr. P.K. Sen draws our attention to the deposition of Sarjug Prosad, Exhibit A, and says that Sarjug Prosad has proved the Will of Krishna Kishore. Mr. Manuk asked us to consider whether this document was properly admitted in evidence. Sarjug Prosad is now dead and his deposition was put in obviously u/s 33 of the Evidence Act. That section provides as follows:

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding or in a later stage oil the same judicial proceeding, the truth of the facts which it states, when the witness is dead, or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.

The questions in issue may be said to be substantially the same in the two proceedings; for, although no separate issue was framed on the question of adoption in the probate proceedings evidence was given on it as bearing on the issue as to the due execution of the Will. There is also no doubt that the adverse party in the probate proceedings had the right and opportunity to cross-examine Sarjug Prosad. In fact that right was specifically given to them by the learned District Judge, and they cross-examined Sarjug Prosad very fully on the question of adoption. The only question is whether the probate proceeding was between the same parties or their representatives in interest.

As I have already said Plaintiff No. 3 was not a party to the probate proceedings; but it is contended that other plaintiffs who were all represented in the probate proceedings were his representatives in interest. The vague expression "representatives in interest" has not been defined in the Act; but whatever scope may be given to those words, they must at least include privies in estate. Partners and joint contractors are each others agents for the purpose of making admissions against each other in relation to partnership transactions or joint contracts and must be regarded as privies in estate. The rule is stated in these terms in Taylor on Evidence (1lth edition, page 345):

The admissibility of evidence seems to turn rather on the right to cross-examine than upon the precise identity, either of the parties or of the points in issue, in the two proceedings, provided they are substantially the same.

30. I have already considered the matter; and, in my opinion, having regard to the two ekrarnamas, dated the 30th July 1906, and the 9th May 1908, respectively, Plaintiff No. 1 and the predecessors in title of Plaintiffs 4-8 must be regarded as having substantially represented the interests of Plaintiffs 2 and 3, and therefore as the representatives in interest of Plaintiffs 2 and 3. In this view I think the adoption of Sarjug Prosad was properly admitted in evidence by the learned Subordinate Judge. Now Sarjug Prosad undoubtedly proves due execution of the Will by Krishna Kishore.

31. In my opinion the statement of Krishna Kishore is properly before us and we must now consider the effect which must be given to it. Mr. Manuk contends that although the statement may; be admissible u/s 32 of the Evidence Act, the question of value is for the Court and that having regard to the surrounding circumstances we should not attach any value to the statement. Mr. Manuk has cited various authorities before us for the purpose of showing that statements of deceased persons have not always received very great weight in the hands of the Courts. It is useless to consider authorities on a pure question of fact. I agree that the statement should not receive much weight if it could be shown that it was made in the interest of the testator and in view of a litigation; but this is not the case here. Mr. Manuk asks us to consider whether Krishna Kishore, by merely making a declaration, could affect the question of succession to the various estates comprised in Sursand. The answer is that the declaration did not pretend to affect succession; but, on the other hand, it was in the power of Krishna Kishore by making an adoption to affect the course of succession to all those estates. He was the presumptive reversioner to those estates and if he had no son he could make an adoption and thus defeat whatever interest the plaintiffs might have to these estates. A statement of this nature differs fundamentally from any statement that a deceased person might make in his own interest in view of a contemplated litigation.

32. In England a person could not make any person his son even if he wanted to do so; but in India it is possible to supply a son where there is no natural son in existence. Mr. Manuks argument is that Krishna Kishore may have been interested in the boy whom he may have wanted to adopt; but he died suddenly, and he may have yielded to the importunities of Genda Kuer and thus described Chandreswar Prosad as the adopted son. Now there is no basis for the argument and it is purely conjectural and does not take the place of proof. On the other hand it is natural and it is by no means uncommon in ordinary experience that a Hindu adopting a son will form the intention in his mind to put the fact of adoption on record in a formal document at some convenient time. There is evidence to show that this was the mind of Babu Krishna Kishore. Mr Manuk further contended that the statement was fraudulently made with the intention of making all the different estates, available to Chandreswar. The answer is that it was in the power of the testator to make those estates available to Chandreswar by merely going through the form of adoption.

33. The best answer which I can make to Mr. Manuks argument is by citing the decision of the Judicial Committee in Kidar Nath v. Mathu Mal [1913] 40 Cal. 555. That was a suit by Mathu Mal to set aside the alienation by the widow who was in possession of the estate in favour of the defendant. The question was whether the plaintiff was the reversioner and therefore entitled to challenge the alienation made by a Hindu widow. He claimed to be the son of a daughter of the husband of the widow, by a former wife; but this was denied by the defendant. He produced a Will made by the widow five years before the suit in which she stated:

I have no issue or any near relative. Mathu Mal is related to me as daughters son, and Lala, Khairati Lal as my husbands younger brother These are my relatives on my husbands side.

The oral evidence as to the plaintiffs title was found to be meagre and conflicting and therefore his only claim rested on the statement of the widow in the Will. It was held by the Judicial Committee that the statement in the Will was, under the circumstances, conclusive of the plaintiffs relationship. Lord Shaw, in delivering the judgment of the Board, said as follows:

In this situation their Lordships are of opinion that, in the most solemn form, this lady had; declared facts which must have been within the scope of her own knowledge; and, if her version of the facts be sound, there can, in their Lordships view, be no doubt that the judgment, appealed form is correct. Their Lordships put to the learned Counsel, who argued the case with conspicuous moderation, the point whether, is this lady, being alive, had testified in a Court of law in the same sense as this Will declared, there could have been any answer; and it was admitted that such testimony unshaken in cross-examination, would have been conclusive on this matter of fact. Their Lordships are accordingly of opinion that the Chief Court was justified in attaching great weight to the contents of this Will, and that the conclusion, upon this matter of fact, reached by them, is a conclusion which now cannot be successfully assailed.

Turning to the argument advanced before them, Lord Shaw said as follows:

Their Lordships desire to add that they do not think it is open to this Board to entertain, in lieu of evidence, a suggestion to the effect that this Will, made five years before her death, was part of a scheme which was to emerge in favour of one party to the present suit, after that suit was brought. These were conjectural efforts made in the argument, but they do not amount to anything which would weigh with the judgment of the Board on the point of evidence.

34. It is necessary now to see how the learned Subordinate Judge has dealt with this important matter. He concedes that "the Will is no doubt evidence"; but he cites various cases to show that the statements in the Will cannot be used as evidence for the purpose of showing that the facts therein mentioned are true. The first case to which he refers is the case of Promotho Nath Mullick v. Prodymno Kumar Mullick [1921] 26 C.W.N. 772. The question in, that case was whether a statement in a will to the effect that the testatrix had kept in deposit with her eldest son one pearl ring worth about Rs. 25,000 could be used as evidence on behalf of the plaintiff who was executor of the Will in a suit for recovery of the ornament in question or the value thereof. How the decision in that case bears on the present case it is difficult to understand. The learned Subordinate Judge has entirely missed the point, which is that the statement of the testator in the case before us is a statement which comes within 32 of the Section Evidence Act since he must have had special means of knowledge as to the relationship between him and Chandreswar Prosad.

35. The next case referred to by the learned Subordinate Judge is the case of Nalam Pattabhirama Rao v. Mandavilli Narayana Moorthy AIR 1922 P.C. 102. In that case it was held by the Judicial Committee that a statement in a Will which suggests an inference as to a fact in issue cannot be proved by or on behalf of the person who made it or his representative in interest. The statement in that case was clearly a self serving statement and could not be proved on behalf of the person making it; but the statement in the present case stands entirely on a different footing. The last case referred to by the learned Subordinate Judge on this point is the case of Bhagban Ramanuj Das v. Ram Praparna Ramanuj Das [1895] 22 Cal. 843. In that case a certain statement in an alleged Will was relied upon by a party in support of his case that he was entitled to succeed to the office of mohant. Probate of the will was not taken and the Judicial Committee found that the Will had no testamentary effect and that the statements in the alleged Will were not true.

It is certainly open to us in the present case to come to the conclusion that the statement made by the testator is not a true one; but for that we must have evidence and not conjectures. The fact that a particular statement was found not to be true in another case which was heard by the Judicial Committee certainly does not warrant the conclusion that the statement in this case is not a true one. It is necessary to repeat once more that cases of pure facts are of no assistance to us. The learned Subordinate Judge then points out that no acknowledgment by word of mouth or by documents as regards adoption will do and that no question of law in adoption is involved but it is the question of fact and the fact must be proved by reliable and convincing evidence.

36. I entirely accept the view of the learned Judge on this point but in considering the evidence I am bound to take into consideration the statement of the testator in the Will. The learned Subordinate Judge then, proceeds to speculate and h(c) speculates as follows:

There might have been cireumstances under which the fact and ingredients of adoption might have been introduced into the Will in a haphazard manner. It is a well known fact that in the month of Jeth, zamindaus and cultivator-class of people remain free and marriage lagans begin. Sunday is considered to be a convenient day for all purposes. The month, day and time might have been introduced in the Will on those accounts. The ingredients of adoption and the age of the boy might have been introduced in consultation with any lawyer well versed in the Hindu law of adoption.

It is sufficient to say that speculation of this nature will hot do. He then suggests that the statement of Krishna Kishore regarding the adoption may be considered to be like a declaration of a dying person and so no implicit reliance can be placed non it. Lastly he says:

At the time when he was suffering from diarrhoea or cholera of which he died, he might have for the sake of case or to get rid the importunity of those around him, yielded to the suggestions made by them;

and he concludes as follows:

His statement of adoption under these circumstances therefore cannot be held to be a conclusive proof of adoption. Even the admission of Krishna Kishore regarding adoption if he were alive would not have been a conclusive proof of adoption unless the ingredients of adoption were proved in case of any litigation between him and somebody else as regards adoption.

37. As I have said, the learned Subordinate Judge has entirely missed the point. He has concentrated his attention on points which are entirely irrelevant, and in refusing to attach weight to the statement he has advanced no argument at all; he has merely indulged in speculation. I hold that the statement of Krishna Kishore in his Will is admissible in evidence and is of considerable weight in this case though, as I said before, it is not conclusive.

I now come to the decisions in two cases on which reliance is placed as establishing the adoption. The first decision relied upon is that of the Judicial Committee in the probate case. It was faintly suggested that that decision operates vas res judicata in the present case. The suggestion is an impossible one, The question of adoption was not in issue in the probate action; although it could properly be considered as bearing on the question as to the due execution of the Will. I do not think that the decision in that case is admissible in evidence in the present case. Mr. Sen contended that it is admissible u/s 13 of the Evidence Act. He says that a claim was put forward on his behalf and that the claim was recognized by the Judicial Committee. The weakness of the argument is that the claim was not put forward. Genda Kuer declined to give more than a minimum of evidence on the question of adoption; and the learned District Judge said that there was no onus upon her to prove the adoption. I think therefore that the decision in the probate action is not admissible in this case.

38. Mr. Sen next relied on the decision of the District Judge of Muzaffarpur in a proceeding under the Curators Act. Jagatrup Kuer died on the 14th of June 1917; and on her death the question arose as to who was entitled to succeed to the estate of Janki Prosad which was held by Jagatrup Kuer. The claimants were, (1) Chandreswar Prosad who claimed as the adopted son of Krishna Kishore and therefore as the nearest gotia; (2) Ashrafi Singh (Defendant No. 1) who denied the adoption and claimed as a gotia; and (3) the present Plaintiffs 1 and 2 who denied the adoption, disputed the title of Ashrafi Singh and claimed as bandhus. Proceedings were taken under the Curators Act, Act 19 of 1841, to determine summarily the question of the right to possession of the estate. The learned District Judge decided in favour of Chandreswar and put him in possession. That judgment is Ex. Z2. But the decision of the District Judge proceeded on the basis of the decision in the probate action and stands on the same footing as that decision. The learned District Judge did not pretend to decide either the question of title or that of possession. He thought that as Chandreswar had succeeded in having his title established in the Judicial Committee, he was entitled to be put in possession. It is obvious that Ex. Z2 has not been properly admitted in evidence.

39. Mr. Sen relies upon the treatment of Chandreswar Prosad by his family. He claims that he was allowed to perform the sradh of Jagatrup Kuer and that of Genda Kuer; and that his janao ceremony and both his marriages took place in Sursand. This was denied by the plaintiffs; but the learned Subordinate Judge found in favour of Chandreswar on this point. There is no doubt whatever that the decision of the learned Subordinate Judge on this point is right; but no importance should be attached to the evidence. If therefore there was in fast a conspiracy between Genda Kuer and Sarjug Prosad to pat forward Chandreswar as the adopted son of Krishna Kishore care would be taken to sea that he answered to the description in the necessary ceremonies in the family. (His Lordship then discussed the evidence as to the question of the treatment of the boy by Krishna Kishore prior to adoption and of the declarations made by him from time to time that he intended to adopt the boy and as to the deposition of a vakil, Jogendra Babu, and proceeded.) Mr. Manuk has very properly drawn our attention to the fact that Jogendra Babu was actually appearing in the case on behalf of Chandreswar; and, he contends that, being a witness in the case, it was his clear duty to retire from the conduct of the suit. I certainly think that it is desirable that a vakil should not appear in a case if he knows or has reason to believe that he will be an important witness in the case; and that he ought to retire if he accepts the brief not knowing or having reason to believe that he will be such a witness but discovering afterwards that he is a witness on a material question of fact.

40. We have however no rules of professional conduct regulating the vakils in this matter, and it is impossible for us to lay down any rule which would be binding on them. All that we can say is, following Woodroffe, J., in Weston v. Peary Mohan Das [1913] 40 Cal. 898:

that as a general practice, it is undesirable, when the matter to which counsel deposes is other than formal, that they should testify either for or against the party whose case they are conducting.

I have anxiously considered the evidence of Jogendra Babu in the light of the criticism of the learned Subordinate Judge, and in my opinion, no ground has been shown for disbelieving him. His evidence establishes that Krishna Kishore came twice to Muzaffarpur during the pendency of the probate case instituted by Jagatrup Kuer and that Krishna Kishore used to see Jogendra Babu almost every evening frequently accompanied by Chandreswar Prosad whom he used to call Paramhans and that Krishna Kishore stated to Jogendra Babu that he proposed to adopt the boy and asked his advice in regard to the adoption. There is other oral evidence which substantially corroborates that of Jogendra Babu.

41. The account books must now be considered, as they constitute important evidence on behalf of Chandreswar Prosad. The oral evidence shows that Krishna Kishore came to Muzaffarpur in January 1904, and left for Baijnath about the end of that month accompanied by Chandreswar Prosad. They stayed in Baijnath for two or three days and returned to Sursand. They came back to Muzaffarpur some time in March and after about two weeks they again returned to Sursand. The account books corroborate the story on every point and testify to the fact that Krishna Kishore and probably his childless wives were greately attracted by Chandreswar Prosad. We get the exact dates from the account books. They show that Krishna Kishore came to Muzaffarpur on the 4th January 1904, left for Baijnath on the 25th of January and returned to Sursand on the 29th of January. (Then, after dealing with entries in account books his Lordship proceeded.) Mr. Manuk contends that the ordinary course of business was not followed so far as Ex. U is concerned. Ex. II is the account of expenses incurred by Krishna Kishore from the 4th of January 1904 to the 31st January 1904.

42. These expenses were incurred in Muzaffarpur and in Baijnath and the chithas of these expenses were made over to Kishori Lal by Sarjug Prosad on the 31st of January 1904, and Jihat they were entered in the Hindi cash book under date the 31st of January. Kishori Lal of course has no personal knowledge as to these expenses; and as Sarjug Prosad is now dead and as there is nobody to take responsibility for these accounts, Mr. Manuk contends that they have not been regularly entered in the cash book in the course of business. But we know what the course of business in Krishna Kishores office was. The cash book was kept in the office and receipts or disbursements of money at any other place were entered when the receipt or disbursement was brought to the knowledge of the office under the date of entry. This course of business was strictly adhered to in this case. It is hardly necessary to say that a book of account may be said to be regularly kept, although the book is not entered up from day to day or from hour to hour as the transactions take place: see Deputy Commissioner of Bara Banki v. Ram Proshad [1900] 27 Cal. 118.

43. In regard to the criticism that there is no one who takes responsibility for the entries in Ex. U, it is sufficient to say that that is not the test in considering whether the entry is admissible in evidence or not. The considerations which have induced the Courts to recognize this species of evidence appear to be that, in the absence of all suspicion of sinister motives, a fair presumption arises that entries made in the ordinary routine of business and in the discharge of a duty are correct, since, the process of invention implying trouble, it is easier to state what is true than what is false and that such entries usually form a link in a chain of circumstances which mutually corroborate each other. In other words, there is a presumption of truth which arises from the character and nature of this evidence and its constant liability, if false, to be detected. It is not quite correct to say that no one takes responsibility for these entries. Kishori Lal takes full responsibility for his statement that h& entered these entries in the Hindi cash book on the 31st January 1904. Krishna. Kishore was then alive and it is unthinkable that a false case as to adoption could be manufactured in the lifetime of Krishna Kishore. The evidence of Kishori Lal may be false; but Mr. Manuks argument, so far as this point is concerned is not on the question whether Kishori Lal is entitled to credit or not. If Kishori Lals evidence be false, we have complete power to deal with it. But the question is whether, accepting the evidence of Kishori Lal to be true, there is any foundation for the argument that Ex. U should be rejected because there is no one who takes responsibility for it. In my opinion there is not the slightest reason to take the view that Sarjug Prosad was fabricating an account in the lifetime of Krishna Kishore with a view to put forward a case of adoption after the death of Krishna Kishore. (His Lordship after considering evidence held that the actual time when the adoption took place was auspicious and that the appellants account of the adoption is altogether free from suspicion). These are all the matters which have been argued before us in connexion with the question of adoption. I recognize that, on a question of fact, the opinion of the learned Subordinate Judge is entitled to great weight. But it is my clear duty in this case to say that the judgment of the trial Court cannot be supported. In regard to two matters at least, it can be definitely said that the learned Subordinate Judge was wrong. He was wrong in not attaching any weight to the declaration of Krishna Kishore in his Will.

44. He was wrong in rejecting the books of account as forged documents. I have taken some pains to show that the learned Subordinate Judges decision on these points is entirely erroneous. Once due weight is attached to the declaration of Krishna Kishore, and the account books are taken into consideration, the oral evidence has to be considered from a different standpoint altogether. In any opinion the appellant has established that he was adopted by Krishna Kishore in dattak form on the afternoon of the 11th June 1905 and that he is prima facie entitled to succeed in this action.

45. Two grounds are, however, urged as invalidating the dattak adoption first, that Chandreswar was over five years of age at the time of the adoption and therefore incapable of being taken as a dattak son by Krishna Kishore; and secondly, that dattak adoption is inadmissible in Mithila which has its own particular form of adoption known as Kritrima. It was also urged before us (but not in the Court below) that a dattak adoption does not give the right of collateral succession in Mithila to the son adopted.

I will first deal with the argument that Chandreswar was over five years at the date of the adoption, and that the age of the boy rendered the ceremonies invalid according to the Hindu Law. There are two questions involved in the argument, first, a question of fact, and, secondly, a question of law. But the point was not raised in the plaint, nor was any issue framed on this point. The onus of establishing the adoption was clearly on the defendant-appellant; but the onus of establishing any ground for invalidating the adoption was on the plaintiffs respondents. In my opinion, the, plaintiffs should have raised the point in the plaint so as to put the defendant on notice of the argument intended to be urged against him at the trial. One consequence of this lack of proper pleading is that we are asked to decide this point practically without any evidence. For my part, I cannot come to any conclusion as to the age of Chandreswar at the date of adoption; for, apart from certain general statements which are of no value to us, we have absolutely no evidence on this point. There is one passage in the deposition of Sarjug Prosad which was relied upon by the respondents. He said,

Pramhans was born in Chait 1307.

If this be so, then Chandreswar was older than five years at the date of the adoption; but when the deposition was read over to the witness, he said,

I have said the year 1307 by mistake. Paramhansji was born in Chait 1308.

46. The respondents contend that his first statement is true, and that his subsequent correction is false. I have a suspicion that this is so; but suspicion is not proof, and all that we can say is that his evidence on this point should be wholly disregarded. I am of opinion that if the onus be upon the plaintiffs to establish that Chandreswar was over five years at the date of adoption, they have failed to discharge the onus; but that, if the onus be upon Chandreswar to establish that he was under five years, he has similarly failed to discharge the onus.

I will assume, however, that Chandreswar was over five years at the date of the adoption. It is conceded that so far as we are concerned, the point is concluded by the decision of this. Court in Raja Makund Dev v. Sri Jagannath Jenamoni AIR 1923 Pat. 423 .

47. The learned Chief Justice of this Court pointed out in that case that all the High Courts and many of the modern text writers are agreed in holding that the Hindu Law imposed no restrictions as to age and, whatever be the age of the adopted son, it is now settled that his adoption is valid if made before upanayana, if he belongs to any of the regenerate classes, and, before marriage, if he belongs to the Sudra caste. The classical decision on this point is that of Mahmood, J., in Ganga Sahai v. Lekhraj Singh [1887] 9 All. 253. That learned and distinguished Judge reviewed all the authorities and came to the conclusion that the passage of the Kalika Parana, upon which the limitation of five years for adoption is entirely founded, is not proved to be authentic; that even if it be taken to be authentic the interpretation adopted by Nanda Pandita in his Dattak Mimansa is not shown to be universally applicable and that this interpretation should be restricted only to Brahmans intended for priesthood. I may say that ever since that decision in 1886 the law has bean settled in every Court in India that an adoption will not be set aside on the ground that the boy adopted was older than five years at the date of the adoption. This is how the law hag stood for the last forty years, and title has been bought, in many cases, on the faith of that law. I do not propose to discuss the point at length; for I entirely agree with the decisions of Mahmood, J., and of the learned Chief Justice in this Court. I hold that the adoption of Chandreswar is not liable to be set aside on the ground that he was older than five years at the date of the adoption. I must not, however, be understood to hold than he was in fact older than five years at the date of the adoption.

48. The only other question is whether the parties are governed by the Mitakshara Law or by the Mithila Law, and if by the former, whether dattak form of adoption is admissible in this case, and if so, whether the dattak son is capable of inheriting to collaterals. This question was not raised in the plaint, nor in the issues framed by the learned Subordinate Judge. The learned Subordinate Judge has, however, discussed the matter and, without recording an opinion on the question, whether the parties are governed by the Mitakshara Law or by the Mithila Law, he has held that if Chandreswar were in fact adopted by Krishna Kishore he would be entitled to succeed to the collaterals. The decision of the learned Subordinate Judge on this point is challenged by the plaintiffs.

49. First, as to the question of fact, whether the parties are governed by the Mithiia Law. They reside in Mithila and must be presumed to be governed by the law which prevails in Mithila until the contrary is shown. The defendant-appellant relies upon various pleadings and judgments in various suits to show that it was always assumed that this family was governed by Mitakshara Law; but in my opinion, those documents are hardly of any assistance to us since, in regard to the points involved in those suits, the Mithila law and the Mitakshara law are identical. There is some amount of reliable evidence that the Sursand family is a family of Paschima Babhans. This is admitted by at least two witnesses examined on behalf of the plaintiffs. There is also a statement to this effect in the will of Krishna Kishore. We may take it then that the parties are Paschima Babhans. But what does this term indicate It is contended on behalf of the appellant that the term indicates that the family migrated to Mithila from the west and that accordingly the law which governed them in their original home must be deemed to govern them in their new home until the contrary is established. The explanation however is of the learned Counsel appearing before us and not of any witness examined in the case. This being the position, I am unable to say on the evidence that the Sursand family migrated to Mithila from a Mitakshara country. The lack of evidence in the record is no doubt due to lack of pleadings in this case.

50. I will assume that the parties are governed by the Mithila Law; but as the Judicial Committee has recently pointed out:

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.

See AIR 1925 280 (Privy Council) . Now it is not open to doubt that a dattak adoption is recognized in the Mitakshara. It is also not open to doubt that a dattak son when he is governed by the Mitakshara Law inherits to collaterals. The critical question for our consideration is, whether, in respect of this matter the Mithila school has departed from the law of the Mitakshara.

51. Dealing with the first question, namely, whether dattak adoption is permissible in Mithila it is sufficient to point out that dattak adoption is dealt with both in Vivada Ratnakar and Vivada Chintamani. Bachaspati Missra deals with the question in discussing the text of Vasistha which is to the effect that a woman has no power to give or take a son but with the assent of nor husband. After discussing the text, he draws the following conclusion:

"She has a right to do so" (that is to say, to take or give a son in adoption) "in association with her husband, but not alone, since in such a case, the rule which empowers her to take a son with her husband but not to perform the rights of adoption, will be infringed." (Tagores edition of Vivada Chintamani, page 74 and page 75).

The Mithila school apparently takes the text of Vasistha to mean that the assent of the husband must be given at the time of the adoption and that therefore a widow cannot receive a son according to the dattak form at all: see Maynes Hindu Law, 8th edition, paragraph 112, page 189). It follows that Mithila Law recognizes dattak adoption; but that it has departed from the Mitakshara in requiring that the assent of the husband should be given at the time of the adoption and, therefore, in ruling out an adoption by a widow.

52. It is quite true that the ingenuity of the Mithila Brahmins has discovered a form of adoption which avoids the difficulties of dattak adoption and enables a person, or oven a widow, to adopt so that there mav be somebody to perform the obsequies and take the inheritance. This form of adoption known as Kritrima is a recent innovation and its genesis is thus stated by Mr. Macnaghton:

But according to the doctrine of Vachaspati, whose authority is recognized in Mithila, a woman cannot, even with the previously obtained sanction, of her husband, adopt a son after his death, in the dattak form; and to this prohibitory rule may be traced the origin of the practice of adopting in the Kritrima form, which is there prevalent. This form requires no ceremony to complete it, and is instantaneously perfected by the offer of the adopting, and the consent of the adopted, party. It is natural for every man to expect an heir, so long as he has life and health; and hence it is usual for persons, when attacked by illness, and not before, to give authority to their wives to adopt. But in Mithila, where this authority would be unavailable, the adoption is performed by the husband himself; and recourse is naturally had to that form of adoption which is most easy of performance, and, therefore, less likely to be frustrated by the impending dissolution of the party desirous of adopting." (Sea Sarkars Hindu Law of Adoption, 2nd edition, page 447).

There is nothing to show that a dattak adoption is obsolete in Mithila. On the contrary, Mr. Sutherland was of opinion that an actual adoption made in the dattak form by a person of Mithila would not be illegal: (see the passage quoted at page 447, Sarkars Hindu Law of Adoption.)

I have now to deal with the question whether a son adopted in the dattak form in Mithila would inherit to collaterals. It is not open to doubt that the Mitakshara gives him the right. The question is whether in regard to this matter the law of the Mithila school has departed from the law of the Mitakshara.

53. Before dealing with this question, it is well to remember, that the Smriti writers recognized various sorts of sons, a son by adoption being one of them. There was a controversy between them as to the relative position of these different sorts of sons; and a reference to the table of son-ship at page 82 of Maynes Hindu Law (8th edition) will show that eight out of the fourteen authorities place the adopted son beyond the sixth in number. Now most of these authorities say that the first six sons inherit to the father and to collaterals; the last six only to the father. From this it is argued by those who follow the eight of the fourteen authorities who place the adopted son beyond the sixth in number that he only succeeds lineally; by those who rely on the remaining six that he inherits collaterally also. As Mr. Mayne points out the two sots of authorities represent different historical periods of the law of adoption; the former relating to a period when the adopted son had not obtained the full rights which he was recognized as possessing at a later period. Bachaspati Missra flourished at a comparatively late period in the development of the law and it will be strange indeed if he refused to recognize the full rights possessed by a dattak son.

54. Dealing with the question of sons, Bachaspati Missra refers to the text of Yama and Narada. Now both Yama and Narada declare that the first six sons in their respective lists inherit to the father and to collaterals and that the last six inherit only to the father. The only comment of Bachaspati Missra is "the meaning is on default of each preceding the next succeeding in order is entitled to the property." There is not one word in his comment to suggest that he accepts the position that it is the first six only who are entitled to inherit to collaterals; but it is contended that the fact that Bachaspati Missra accepted Yama and Narada without any comment shows that he saw no reason for differing from them. But he does comment, and his comment shows that in his view no distinction could be drawn between what have been called "succedaneous" and "non-succedaneous" sons, that is to say, between those who succeed collaterally and those who do not; and that, in his scheme, in default of the first six, the seventh is entitled to the property, no distinction being drawn between property belonging to his lineal ancestor and that belonging to the collaterals. The literal translation of this passage in Vivada Chintamani is "becomes fit to be possessed of property" that is to say, both kinds of properties mentioned in the texts of Yama and Narada. In other words, Bachaspati Missra refers to the classification of Yama and Narada only to ascertain the relative position of the different sorts of sons in the scheme of succession. There is not one word in his commentary to suggest that he was making a distinction between direct succession and collateral succession.

55. He then refers to the text of Manu and Baudhayana both of whom place the adopted son amongst those entitled to inherit collaterally; and there is no comment of Bachaspati Missra on these texts. After referring to the text of Devala he deals with the texts of Vishnu and Yajnavalkya. Now it is important to remember that both Vishnu and Yajnavalkya departed from the scheme adopted by the other sages in so far as they make no distinction whatever between "succedaneous" and non-succedaneous" sons. According to both the sages, "amongst these," namely, these mentioned amongst the different sorts of sons in due order the next in order is heir and presents funeral oblations on failure of the precedings." Now if we turn to the comment of Bachaspati Missra on the texts of Yama and Narada, it will be seen that this is the exact interpretation he is giving to those texts; his interpretation to those texts being that.

on default of each preceding the next succeeding in order is entitled to the property.

56. Having dealt with all these different texts Bachaspati Missra gives his own order and it is obvious that he is making no distinction whatever between succedaneous and non-succedaneous sons. Ha places the adopted son seventh in his list; and, I understand him, he contemplates that the son adopted would be entitled to suceeed to the property whether belonging to the lineal ancestor or to a collateral in default of the first six mentioned in his list.

57. Now if there was no indication in Bachaspati Missra, whether he intended or did not intend to depart from, the rule laid down in Mitakshara, we would have to apply the Mitakshara rule to this case, for, as I have already pointed out, 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.

58. In my opinion, however, there is clear indication that he has not adopted the distinction between what have been called "succedaneous" and "non-succedaneous" sons. He has clearly intimated his view that on default of each preceding next succeeding in order "becomes fit to be possessed of property." I am of opinion that a dattak son in Mithila is capable of inheriting to collaterals.

59. I would allow this appeal, set aside the judgment and the decree passed by the Court below and dismiss the plaintiffs suit with costs in both the Courts.

Foster, J.

60. I agree with the judgment of my learned brother on every issue. (The remaining portion is consideration of evidence and hence not material to the report.)