J.W. Colvile, J.

1. This is an appeal against the decree of the High Court of Calcutta, which, reversing a decree of the Subordinate Judge of Zilla Rajshahye, dismissed the plaintiffs suit.

2. The suit was brought by a Hindu widow, Jumoona Dassya, against her daughter-in-law, Bamasoondari Dassya, who was sued in her own right, and also as the guardian of Giris Chunder Mozoomdar, whom she had adopted under an authority alleged to have been executed by her deceased husband. The object of the suit, which may be taken to be a suit between Jumoona Dassya and the infant adopted, was to set aside that adoption, and to have it declared invalid. Jumoona was the widow of Guru Pershad, who died in the year 1851. He left, besides his widow, two sons, Govind Chunder and Gopal Chunder, and three daughters. On his death-bed he executed a wasiutnamah, the effect of which was to constitute his widow the guardian of the two sons, and manager of his property during their minorities, with a direction that, on their attaining majority, the elder should take a nine-anna share, and the younger only a seven-anna share of his estate. Govind Chunder, the eldest son, died in the year 1853. He had, according to the custom of Hindus, been married in his fathers lifetime, whilst yet a child of tender years, to another child some years younger than himself. It is alleged on the part of the defendants that on his death-bed, the day before his death, he executed a document authorising his widow to adopt a son; and the truth of this allegation is the principal question in the cause.

3. If the adoption stands good, the adopted son is not only entitled as actual possessor to the share of Govind Chunder, his adoptive father, but upon the death of Jumoona, will, if then living, become entitled to take the share of the other brother, who died unmarried, and whilst still a child, in preference to the sisters of his father. On the other hand, if the adoption is invalid, Jumoona, if she survives Bamasoondari, will become entitled on the death of the latter to the share of her eldest son. This contingent interest is the only locus standi which she has in the present suit; although the desire to strengthen the future and contingent claims of her daughters may have been an additional motive for bringing it.

4. Various questions were raised in the suit which are now of no moment. The only substantial issues are, first, whether Govind Chunder did execute the alleged authority to adopt; and, secondly, if he did so, whether he was by reason of his age capable of executing such a document.

5. Their Lordships think it will be desirable, in the first place, to come to a clear conclusion upon a question which has been very much disputed in the cause, namely, the age of Govind Chunder at the time of his death, because it is one which bears upon both the issues to be now determined. It bears of course directly upon the latter of them, and it bears indirectly upon the former, inasmuch as the older Govind Chunder was, the more probable is it that he would desire to execute such a document as that in question.

6. The contention in the present suit is, that although Bamasoondari was, at the time of her husbands death, 11 or 12 years old, he was only between 13 and 14; that there was not a difference of more than two years between them. That there can be any doubt now as to the age of Bamasoondari, is, their Lordships think, impossible. (After stating an admission of Jumoona that there was a difference of about four years between the age of Bamasoondari and that of her husband, his Lordship continued:) The question of Bamasoondaris age was solemnly tried and determined between her and her mother-in-law in the suit of 1860. The horoscope of Bamasoondari was then produced, and the finding of the Judge made it perfectly clear that she must have been, at her husbands death, of the age of 11 or 12 years. The result of that suit, no doubt, has been the consensus of the witnesses on both sides in the present suit as to the age of Bamasoondari. But the effect of the admission of Jumoona remains, and there is no reason why we should come to any conclusion other than that the difference of age between Bamasoondari and her husband was that which was originally stated. Their Lordships, moreover, think there is great force in the observations of Kemp, J. a Judge admittedly of large experience as to native usages and customs upon this point. He thinks that Hindu Marriages are usually arranged so that there is a difference considerably more than one or two years between the age of the husband and wife; and their Lordships think this is probable and reasonable. The foundation upon which marriages between infants, which so many philosophical Hindus consider one of the most objectionable of their customs, are supported, is the religious obligation which is supposed to lie upon parents of providing for their daughter, so soon as she is matura viro, a husband capable of procreating children; the custom being that when that period arrives, the infant wife permanently quits her fathers house, to which she had returned after the celebration of the marriage ceremony, for that of her husband. Therefore, it is to be expected, both for physical and moral reasons, that marriages should be arranged so that the husband, when called upon to receive his wife for permanent cohabitation, should have attained the full age of adolescence, and also the age which the law fixes as that of discretion.

7 Their Lordships, therefore, upon the evidence, have no difficulty in coming to the conclusion that Govind Chunder was, at the time of his death, of the age of 15 or 16, and, therefore, of an age which, according to the law prevalent in Bengal, is to be regarded as the age of discretion.

8. His Lordship then examined the evidence bearing on the execution bf the authority to adopt, the conclusion being that the decision of the High Court was not to be disturbed. He then continued:



The only remaining point is that taken by Mr. Doyne, to the effect that although Govind Chunder may have been of the age of discretion according to the Hindu law as prevailing in Bengal, he was still a minor under the 2nd section of Reg. XXVI of 1793, and that under the 33rd section of the prior Reg. X of 1793 he could not make the adoption without the consent of his guardian. The last-mentioned enactment prohibits a disqualified proprietor from making an adoption, except with the sanction of the Court of Wards; and it has been determined by the Sudder Court in the case cited, Anundmoyee Chowdrain v. Sheeb Chunder Roy S.D.A. 1855 p. 218 a case which afterwards came here, though not on the same point (See 9 Moores I.A. 287), that the prohibition applies equally to an authority to adopt and to an actual adoption. But the words of the 33rd section of Reg. X of 1793 would seem to confine its operations to persons who are under the guardianship of the Court of Wards. And we have the judgment of Mitter, J. to the effect that where a minor is not under the Court of Wards, but has attained years of discretion according to the Hindu law, he is capable of executing such an instrument as this--Rajendro Narain Lahoori v. Saroda Soonduree Dabee 15 W.R. 548. If then the case actually turned upon this point, their Lordships opinion would have been that Govind Chunder was not incapacitated from executing this instrument by reason of his not having attained the age of 18 years. If, however, the consent of Jumoona was, as their Lordships think they must take it to have been, given to the execution of the instrument, the particular objection thus taken by Mr. Doyne would not arise.

9. Their Lordships have dealt with this case as if the question were one fairly open for trial between the parties. They give no opinion as to what the effect of a decree in such a suit may be, whether one in favour of the adoption is binding against any reversioner except the plaintiff, or whether, on the other hand, a decision adverse to the adoption would bind the adopted son as between himself and anybody except the plaintiff. All their Lordships can do on the present occasion is to say that Jumoona has not made out her right to have this adoption declared invalid, and they must humbly advise Her Majesty to affirm the judgment under appeal, and to dismiss this appeal with costs.