Madhavan Nair, J.

1. Who, after dealing with all the circumstances bearing on the question of fact whether the three letters relied on by the respondents as conferring authority to adopt were proved to have been written by Raja Chandra Shekhar, held that their genuineness had been established. The judgment then continued: The next question for determination is whether the consent in writing contained in Exhibits A 189 to A 191 is invalid for want of registration as required by the Indian Registration Act. The Oudh Estates Act (Act I of 1869) was passed "to define the rights of taluqdars "and others in. certain estates in Oudh, and to regulate the "succession thereto." This Act was afterwards amended by U.P. Act III of 1910. The Act applicable to the present case is the unamended Act I of 1869 as the consent in writing to adopt given to the Rani was dated 1889. Section 22, consisting of eleven clauses, lays down "special rules of succession to "intestate taluqdars and grantees." It will be convenient to reproduce cll. 1 to 8 of the section, which are as follows:



22. If arty taluqdar or grantee whose name shall be "inserted in the second, third or fifth of the lists mentioned "in Section 8, or his heir or legatee, shall die intestate as to "his estate, such estate shall descend as follows, viz.:



"(1.) To the eldest son of such taluqdar or grantee, heir "or legatee, and his male lineal descendants, subject to the "same conditions and in the same manner as the estate "was held by the deceased;

"(2.) Or if such eldest son of such taluqdar or grantee, "heir or legatee, shall have died in his lifetime, leaving "male lineal descendants, then to the eldest and every "other son of such eldest son, successively, according to "their respective seniorities, and their respective male "lineal descendants, subject as aforesaid;

"(3.) Or if such eldest son of such taluqdar or grantee, "heir or legatee, shall have died in his fathers life-time "without leaving male lineal descendants, then to the "second and every other son of the said taluqdar or "grantee, heir or legatee, successively, according to their "respective seniorities, and their respective male lineal "descendants, subject as aforesaid;

"(4.) Or in default of such son or descendants, then to "such son (if any) of a daughter of such taluqdar or "grantee, heir or legatee, as has been treated by him in "all respects as his own son, and to the male lineal "descendants of such son, subject as aforesaid;

"(5.) Or in default of such son or descendants, then to "such person as the said taluqdar or grantee, heir or "legatee, shall have adopted by a writing executed and "attested in manner required in case of a will and "registered, subject as aforesaid;

"(6.) Or in default of such adopted son, then to the "eldest and every other brother of such taluqdar or grantee, "heir or legatee, successively, according to their respective "seniorities, and their respective male lineal descendants, "subject as aforesaid;

"(7.) Or in default of any such brother, then to the "widow of the deceased taluqdar or grantee, heir or "legatee; or, if there be more widows than one, to the "widow first married to such taluqdar or grantee, heir or "legatee, for her lifetime only;

"(8.) And upon the death of such widow, then to such "son as the said widow shall, with the consent in writing "of her deceased husband, have adopted by a writing "executed and attested in manner required in case of a "will and registered, subject as aforesaid;

2. It will be observed that Clause 8, which speaks of an adoption by a widow of a taluqdar, does not mention that the consent in writing should be registered. Clauses 4, 5 and 7 of Section 22 of the Act as amended by U.P. Act III of 1910 may also be noticed. Clause 4, corresponding to Clause 5 of the unamended Act, is as follows: "(4.) Or in default of such son or his male "lineal descendants, then to such person as the said taluqdar "or grantee, heir or legatee, shall have adopted and his male "lineal descendants, subject as aforesaid;" Clause 5, corresponding to Clause 6 of the unamended Act, is as follows: "(5.) Or in default of such adopted son, or his male lineal "descendants then to the eldest and every other brother of such "taluqdar or grantee, heir or legatee, successively, according "to their respective seniorities, and their respective male "lineal descendants, brothers of the whole blood and their "descendants, being preferred to brothers of the half blood "and their descendants, subject as aforesaid;" Clause 7, corresponding to Clause 8 of the unamended Act, is as follows: "(7.) And on the death of such widow, then to such son as the "said widow shall, with the consent in writing of her deceased "husband, have adopted, and his male lineal descendants, "subject as aforesaid Provided that, after the expiration of "six months from the commencement of this Act such consent "shall be expressed by; means of a registered instrument or "by means of a will or codicil executed and attested in the "manner required by this Act."

3. The first two Indian Registration Acts, namely, Acts XXI of 1864 and XX of 1866, did not apply to Oudh. The first Registration Act which applied to Oudh was Act VIII of 1871, which was brought into force from January, 1872. Before the year 1871, registration in Oudh was provided for by a set of rules which had been sanctioned by the Government and were made applicable to certain instruments. Before the passing of the Oudh Estates Act, I of 1869, the widow of a Hindu taluqdar could adopt with the authority of her husband granted orally or expressed in writing; and if that authority was in writing it was not required to be registered. Clause 8 of the Act made it necessary for the first time that the consent to adopt given by the husband should be in writing, but nothing is said in the Act about the registration of the authority. It is contended for the appellants that Clause 8 of Section 22 of Act I of 1869 does not apply to adoption by the widow of a Hindu taluqdar, that the provision applies only to Mahomedans, that Section 17, Sub-section 3, of the. Indian Registration Act of 1871 would apply to the adoption in the present case, and without registration the written consent to adopt contained in the disputed letters would be invalid. Section 17, Sub-section 3, of the Indian Registration Act, 1871, says that: "Authorities to adopt a son, "executed after the first day of January, 1872, and "not conferred by a will, shall also be registered." Written authorities to adopt a son were made compulsorily registrable for the first time by the Indian Registration Act of 1871, which repealed the Act of 1866. The registration of such "authorities to adopt" was optional under the latter Act (Section 18). It is argued that what was optional under the repealed Act having been made compulsory by the Act of 1871, it must be presumed that the policy of that Act when it was made applicable to Oudh is to make the registration of the consent to adopt in writing, about which Clause 8 of Section 22 is silent, also compulsorily registrable. In their Lordships view, considerations urged with reference to the policy of the Registration Acts lead to no definite conclusions. If Act I of 1869 provides a sufficient answer to the question, there can be no need to have any recourse to the Registration Acts to solve the problem. The provision contained in Section 17, Sub-section 3, of the Registration Act of 1871 remained unaltered in the subsequent Registration Acts, namely, Act III of 1877 and Act XVI of 1908, the present Act. If the Registration Act of 1871 applies, the authority in the present case should be held to be invalid, for Section 49 of the Act says: "No document required by Section 17 to be "registered, shall affect any immovable property comprised "therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or "conferring such power, unless it has been registered in "accordance with the provisions of this Act."

4. The respondents contend that the present case is governed by the special provisions of Act I of 1869, that Clause 8 applies to adoption by the widows of both Hindu and Mahomedan taluqdars, and that clause does not require that the consent in writing should be registered, that the general Registration Act could not affect the provisions of the special Act, and that if the legislature thought registration of the consent in writing was necessary, it would have made it clear by stating its intention in express language as shown later when the Act was amended by the proviso of Clause 7 of Section 22 of the Act as amended by Act III of 1910. In support of his arguments the learned Counsel for the appellants relied on the observations of Lord Sumner when delivering the judgment of the Board in Raghuraj Chandra v. Subhadra Kunwar (1928) L.R. 55 I.A. 139 to show that Clause 8 of Section 22 of Act I of 1869 applies to Mahomedan Taluqdars only, and that adoption by the widow of a Hindu Taluqdar armed with a consent in writing to adopt would therefore under the general law require registration of the consent to validate it. He argued further that if the said clause applies to Hindu Taluqdars also, registration of the consent in writing is necessary in view of the decision in Umrao Singh v. Lachhman Singh (1911) L.R. 38 I.A. 104, which he cited as a clear decision to show that the Indian Registration Act would apply to the Oudh Estates Act I of 1869. The decision in Raghuraj Chandra v. Subhadra Kunwar (1928) L.R. 55 I.A. 139 is the first "Sissendi" case. The controversy in that case was whether a natural brother of an adopted Hindu Taluqdar could succeed to the taluqdari estate on the death of such Taluqdar in preference to his widow. That case arose under Act I of 1869 as amended by the U.P. Act III of 1910 as Raja Chandra Shekhar died in 1923. What was decided in that case is thus summarized in the headnote:



"In determining the succession to an Oudh taluqa in "lists 2, 3 or 5 on the death intestate of a Hindu holder, "the ceremonially adopted son of the preceding holder, his "natural brother is not a brother within the meaning of "Section 22, Clause 5, of Act I of 1869 as amended by Section 14 of U.P. "Act III of 1910, since according to Hindu law the adoption "operated as a rebirth for all purposes material to the "question.

"In interpreting the relationships mentioned in Section 22, the "personal law of the parties is to be taken into account, save "where a contrary intention appears. The word son "in Clauses 1, 2 and 3 does not include the adopted son of a "Hindu, since a contrary intention appears from clauses 4 "and 7, which expressly assign a position to adopted sons, "without distinction between Hindu and Mahomedan "adoptions. With regard to the word brother in Clause 5, "there is no similar indication."

5. Their Lordships were considering in that case whether the word " brother " in Section 22, Clause 5 of the Oudh Estates Act I of 1869 as amended by the U.P. Act III of 1910 included the natural brother of an adopted Hindu. It was argued that the word "son" as used in the amended Act did not include an adopted son as it did (so the argument ran) in the unamended Act, and that the word "brother" should be understood as meaning blood brother. Considering the above arguments in detail their Lordships concluded as follows (3): "The result, "however of the alterations made by the Act of 1910 is that "adopted Sons, whether in Hindu families or otherwise, being now separately introduced into the succession, sons in "Clauses 1, 2 and 3, do not include adopted sons, although a "change in the general Hindu law of succession results from the change in the Act. Under the Act of 1869, Hindu adopted "sons came in lither as sons under the first three clauses or "under Clause 11, the latter being barely credible. Under that of "1910, all sons adopted by men come under Clause 4, and by "widows under Clause 7. The resultant alterations in general "Hindu law are deliberate and are considerable." It may be mentioned that in the immediately preceding paragraph of the judgment their Lordships indicated the alterations in the new Act. They stated (1): "....In the former Act, Clause 5 "simply introduced into the order of succession the Mahomedan "adoptions, which by the subsequent Section 29 were brought into "existence in a statutory documentary form, without religious "or other ceremonies. Clause 4 in the new Act brings into "their place on the order of succession adoptions, both "Mahomedan and Hindu, for the old Section 29 is amended and enlarged and all adoptions are now required to be completed "by written documents subsequently registered. Thus the "reference to persons adopted in the amended Clause 4 is general "and covers all adopted persons, the definition of the form, which a makes them adopted persons, being now relegated to "the altered Section 29, except that, in the case of adoption by a "widow, a proviso is anomalously attached to Clause 7 of Section 22, of "prescribing the conditions to be observed by her, which "would more regularly have formed a further addition to the "altered Clause 29." After stating the result of the alterations, as quoted above the judgment proceeded as follows (2): "The appellants have thus made good the first step in their "argument - namely, that son used simpliciter, means in "this legislation sons by natural generation, and means "nothing more. Their second step is that brothers likewise "in Clause 5 means, or it is better to say includes, blood brothers "..." Perusing the judgment it will be found that their Lordships came to the conclusion that the word "brother" dose not mean blood brother on considerations based exclusively on Hindu law, particularly on the significance of the term adoption, which is spoken of as "new birth" which involved by principle "of a complete severance of the child adopted "from the family in which he is born...and complete "substitution into the adoptive family, as if he were born in "it" L.R. 55 I.A. 148. That reasoning formed the sole basis of their Lordships decision, which was not based on what was stated with reference to Sections 4 and 5 of the amended and unamended Acts. No questions affecting the validity of an adoption arose for decision in the case. In the circumstances their Lordships think the reasoning extracted above was not necessary for the decision of the case and should be considered as obiter dictum and should not be used for deciding this case. They are also of opinion that Clause 8 of Section 22 of Act I of 1869, by making necessary that the consent to adopt should be in writing, does not introduce such a violent deviation from Hindu law as to make it inapplicable to Hindu taluqdars. As pointed out by Walford, J., the clause in question "does not deviate from the "fundamental principles of Hindu law, relating to adoption, "but only provides for the mode in which the inherent right is "to be exercised.... It is the right to authorize his wife "to make an adoption after his death that is the essence of "Hind law of adoption, and not the manner in which the "authority is to be conferred. The Hindu law is virtually "silent as to the latter. Therefore, normally a Hindu can, "either orally or in any other manner, express his consent or "confer an authority on his wife." By requiring that the consent should be in writing the clause does not introduce any change which may be called fundamental in the Hindu law of adoption. The Act was intended to apply to taluqdars of different communities. If the legislature had intended that Clause 8 should apply only to adoptions by the widows of Mahomedan taluqdars it would have stated it in express terms. Their Lordships have not overlooked Section 29 of Act I of 1869, which permitted Mahomedan adoptions, but, notwithstanding the dicta in Raghuraj Chandras case Ibid 139 which were relied upon by the appellants counsel, they do not regard this section as affording a sufficient indication of an intention to limit the operation of Clause 8 to Mahomedan adoptions.

6. The decision in Umrao Singh v. Lachhman Singh L.R. 38 I.A. 104 also cannot be used in support of the appellants arguments. The salient facts of the case and the decision thereon are stated in the headnote:



Two surviving sons of an Oudh taiuqdar sued the sons "of their deceased brother to recover one-third of the taluq "of which the latter had obtained mutation of names in his favour after the taluqdars death. The plaintiffs claimed "under a will executed by their father in October, 1893, "alternatively under a former will dated January 9, 1862. "The defendants contended that the earlier document was "not a will and that the later was executed when the taluqdar was not of sound disposing mind, and that on May 23,1884, "he had executed an effective family arrangement under "which his three sons were to divide the property movable "and immovable:



"Held, that the instrument of 1884 was not testamentary "but a family arrangement intended to be final and "irrevocable and operative immediately, but void as "regards immovable property, not having been registered "under Act III of 1877.

7. The document referred to runs as follows L.R. 38 I.A. 104, 109: "This sanad "is executed by me, Thakur Kalka Bakhsh, taluqdar of Ramkote. For Pirthipal Singh, who is my son, I fix Rs. 300 "annually, so that he may maintain himself. Besides this, "whatever I may give I will give equally to the three sons, "except provisions, which they may take from my godown "(kothar). He may take 6 annas in kharif (crop) and 10 annas "in rabi (crop) out of my treasury (tahwil). The marriage "and gauna expenses of the sons and daughters shall be borne me. After me the three sons are to divide the property, "movable and immovable. This has been settled through the mediation of Thakur Jote Singh of Bihat and Thakur Ratan "Singh of Rojah." In the judgment their Lordships do not find any reference to Section 16 of the Oudh Estates Act I of 1869, which was clearly relevant for the decision of the case. Section 16 of the Act is as follows: "No transfer of any estate, of any portion thereof, or of any interest therein, made by taluqdar or grantee or by his heir or legatee under the "provisions of this Act, shall be valid unless made by an "instrument in writing signed by the transferor and attested "by two or more witnesses." The only reference to the question of registration in the judgment is to be found in the single sentence "It [the document] fails of effect simply because "it was not registered, as required by the Registration Act III "of 1877 Section 17. It is therefore void as regards immovable "property" Ibid 111. Had Section 16 of the Act been brought to their Lordships notice it is difficult to say that the decision of the Board would have been the same. In these circumstances their Lordships cannot regard the decision as satisfactorily disposing of a point which had not been fully argued before, or submitted to, the Board.

8. In addition to the argument based on the Act - which their Lordships will consider presently - the respondents, in support of their contention that the disputed letters did not require registration, relied on two decisions of the Board, namely, Maharajah Pertab Narain Singh v. Maharanee Subhao Kooer (1877) L.R. 4 I.A. 228 and Bhaiya Rabidat Singh v. Maharani Indar Kunwar (1888) L.R. 16 I.A. 53, neither of which was considered by the Board in Raghuraj Chandra v. Subhadra Kunwar L.R. 55 I.A. 139. In Maharajah Pertab Narain Singh v. Maharanee Subhao Kooer (1877) L.R. 4 I.A. 228 the Board had to consider whether the appellant in the case was entitled to succeed as the son of a daughter of the deceased Maharajah who had "been treated by him in all respects "as his own son within the meaning of Clause 4 of Section 22 "of Act I of 1869." Clause 4 has already been quoted. The question was answered in favour of the appellant. In considering the section their Lordships observed as follows (4): "Their Lordships are disposed to think that the clause must "be construed irrespectively of the spiritual and legal consequences of an adoption under the Hindu law. They apprehend that a Hindu grandfather could not, in the ordinary "and proper sense of the term adopt his grandson as a son. "Nor do they suppose that, in passing the clause in question, "the legislature intended to point to the practice (almost, "if not wholly, obsolete) of constituting, in the person of a "daughters son, a patrica-puttra, or son of an appointed "daughter. Such an act, if it can now be done, would be "strong evidence of an intention to bring the grandson within "the fourth clause, but is not therefore essential in order to do "so. Moreover, it is to be observed that the fourth, like every; "other clause in the twenty-second section, applies to all the "tahiqdars whose names are included in the second or third, "of the lists prepared under the Act, whether they are Hindus, "Mahomedans, or of any other religion; and it is not until" all the heirs defined by the ten first clauses are exhausted; "that, under the eleventh clause, the person entitled to succeed "Incomes determinable by the law of his religion and tribe." Though the decision does not directly deal with Clause 8 of Section 22 of the Act it is clear that in their Lordships opinion cll. 4 and 8 stood on the same footing. For the purpose of comparison Clause 8 must evidently have been considered by their Lordships. In the circumstances great weight must be given to the opinion which they expressed. Of all the cases cited before the Board this decision comes nearest to the present case in regard to the point under consideration, and it supports the respondents.

9. In Bhaiya Rabidat Singh v. Maharani Indar Kunwar L.R. 16 I.A. 53, in considering the grounds of objection to the validity of the adoption urged in the case, their Lordships observed as follows Ibid 57: "In the first place it was contended that the "adoption was invalid, because the authority to adopt was "not contained in a registered document. Their Lordships "are of opinion that there is no ground for this contention. "The Act of 1869 requires the writing by which an authority "to adopt a son is exercised to be registered. It also requires "the authority to be in writing. But it does not require that "writing to be registered. Act III of 1877, Section 17, which does "require authorities to adopt a son to be registered, expressly "excepts authorities conferred by will." This case, when examined, does not appear to be directly in point, as it was unnecessary to the decision to decide what result would have followed if Act III of 1877 had required an authority conferred by will to be registered.

10. In their Lordships view, Clause 8 of Section 22 of Act I of 1869 governs the consent in writing contained in the disputed letters. The contention that the operation of that clause is confined to the consents in writing executed by Mahomedan Taluqdars and does not extend to those executed by Hindu Taluqdars is not supported by authority. There is nothing in the language of the clause or in any part of the Act to warrant the distinction. Under that clause, while a deed of adoption is to be in writing and registered, nothing is said of registration of the consent in writing. In support of the respondents contention that the consent in writing does not require registration it was argued by Mr. Pritt that Act I of 1869 is a complete Code with respect to the matters contained in the Act, that it has made registration compulsory with respect to certain specific documents, and that if the legislature desired that the consent in writing should be registered it would definitely have said so instead of leaving it to be decided by the general law of registration contained in the Indian Registration Act. Under the Act certain instruments are compulsorily registrable. To illustrate : Under Section 13 of the Act "no Taluqdar or Grantee and no heir or legatee of a "Taluqdar or Grantee shall have power to give or bequeath "his estate or any portion thereof or any interest therein to any "person " not falling within cll. 1 and 2 of the section "except "by an instrument of gift or a will executed and attested not "less than three months before the death of the donor or "testator, in manner herein provided in the case of a gift or "will, as the case may be, and registered within one month "from the date of its execution." Under Section 17 of the Act it was enacted that a gift shall not be valid "unless within six" months after the execution of instrument of gift, the gift be " followed by delivery by the donor, or his representative in "interest, of possession of the property comprised therein nor "unless the instrument shall have been registered within one "month from the date of its execution." Other instances of "instruments" requiring registration will be found in Sections 18, 20, 22, cll. 5 and 8 ("adoption" deeds), 29, 30 and 31. Thus, it would appear that the legislature has provided for registration in cases which it thought should be registered. As it has not done so in respect of the document containing the consent in writing, mentioned in Clause 8, the intention of the legislature must have been that such a document need not be registered to make it valid.

11. The above view is strongly supported by what happened in 1910 when the Act I of 1869 was amended. It will be observed that in the proviso to Clause 7 of Section 22 of the amended Act (already quoted), which refers to the consent in writing to adopt given by the deceased husband to the widow, it is stated that after the expiration of six months from the commencement of this Act the consent mentioned in the section "shall be expressed by "means of a registered instrument or by means of a will or "codicil, executed and attested in the manner required by this "Act." The inference derivable from this proviso is clear. Had the Registration Act VIII of 1871 or the subsequent Registration Acts been made applicable to the consent in writing mentioned in the clause, the legislature would not have added the proviso. This argument seems to their Lordships to be conclusive and unanswerable. It follows, therefore, that the contention that the consent in writing, not mentioned as required to be registered, under Clause 8 of Section 22 of Act I of 1869 becomes compulsorily registrable under the Registration Act of 1871 is clearly untenable. In this connexion attention may be drawn to Section 16 (already referred to) of the Act I of 1869. In the amended Act this section was amended by making the infrument of transfer compulsorily registrable. If the legislature had thought that the general law of registration applied to the instrument falling within Section 16 of the Act it would not have taken the trouble to amend it.

12. For the above reasons their Lordships hold that under Clause 8 of Section 22 of Act I of 1869, which applies to this case, the consent in writing contained in the disputed letters does not require registration for its validity. In their Lordships view the legislature in Act I of 1869 has made provision for registration in respect of instruments which it considered should be registered to make them valid, and since it did not do so with respect to a document containing consent in writing, such a document does not require registration to make it valid. In this connexion it is noticeable that the same clause, while saying nothing about registration in respect of the consent in writing, states expressly that the instrument exercising the power should be registered. The contrast is striking. The Oudh Estates Act I of 1869, is a special Act affecting a special class of persons in respect of the properties conferred on them. The Act is self-contained and complete in regard to the matters contained in it. In this view their Lordships think on the principle generalia specialibus non derogant that the subsequent general Registration Act of 1871 cannot affect the provision of the special Act I of 1869.

13. The third and last, question for determination is as regards the nature of the properties items 23, 24, 25, 26 and 29, i.e., whether these are taluqdari or non-taluqdari properties ; and who is entitled to them As already stated, item 29 has been found to be a taluqdari property by all the learned judges. That finding has not been questioned; if, as their Lordships have held, the second respondent is the validly adopted son of Raja Chandra Shekhar, then he is entitled to the ownership of that item along with the other taluqdari properties. The other four items of property have been found by all the learned judges to be non-taluqdari properties. Those items would therefore fall outside the Oudh Estates Act. The trial judge and Ghnlam Hasan, J. therefore held that succession to those properties was invalid inasmuch as the consent in writing had not been registered as required under Section 17, Sub-section 3, of the Indian Registration Act, and the second respondent therefore was not entitled to them. Taken along with their decision with respect to the taluqdari properties, the second respondent was not entitled to any of the suit properties. The other two learned judges took a different view. Though they agreed with the finding that the properties were non-taluqdari, they nevertheless held that the second respondent was entitled to them. Walford, J. gave the following reasons for his opinion: "To hold that the appellant is a son for the purposes "of the taluqdari property and not a son for the purposes of "non-taluqdari property would be extremely anomalous and "absurd. I am clearly of the opinion that once a person is held "to be a son he becomes an heir to all his fathers property "according to the personal law and no distinction can be "drawn in respect of taluqdari and non-taluqdari property. "The proposition is so simple and clear that it does not admit "of any argument." The learned Chief Justice stated as follows: "On my finding that Vijoy Kumar is the validly "adopted son of Raja Chandra Shekhar, then it must be held "that by implication of Clause 1 of Section 22 as interpreted by their "Lordships of the Privy Council in 55 I.A. 139, Vijoy Kumar "takes the place of a natural born son and therefore the estate "of the deceased Raja Chandra Shekhar whether taluqdari or "otherwise must necessarily devolve upon him. Indeed, "the learned Counsel for the plaintiffs-respondents virtually "conceded this position."

14. Mr. Page argues that the reasoning of Walford, J. and the learned Chief justice is plainly unsound for the reason that the second respondent would be a validly adopted son and would take the place of a natural son if adopted under an oral authority given by the deceased taluqdar and yet would not be entitled to the taluqdari properties; and that therefore it does not necessarily follow that once a person is held to be an adopted son he becomes heir to all his fathers properties. The four items of properties being held to be non-taluqdari properties the learned Counsel contends that the appellants should be held to be entitled to them.

15. Besides supporting the reasoning of Walford, J. and the learned Chief Justice, Mr. Pritt put forward two additional grounds in support of his contention that the second respondent is entitled to the non-taluqdari properties also. These are-- says the learned counsel - (1.) an implied oral or written authority to adopt previously given may be inferred from the circumstances of the case and, if so, the adoption would be valid, and the second respondent would be entitled to the non-taluqdari properties also, in addition to the taluqdari properties to which he would, of course, be entitled, as the consent in writing does not require registration to make it valid, and (2.) the finding of the courts in India that the properties are non-taluqdari is unsustainable in law. Their Lordships will deal with these grounds seriatim: (1.) The reasoning of Walford, J. and the learned Chief Justice is plainly unsound for the reason given by Mr. Page and does not require any further elaboration. (2.) The object of the second argument is - it is needless to say - to avoid the application of the Registration Act. The circumstances from which the authority may be implied are stated to be (a) the fact that the second respondent is in possession of the entire taluqdari properties by a valid adoption carried out with religious ceremonies and (b) the conduct of the Raja which would make the inference of implied adoption permissible. The second ground was considered on its merits and overruled by Ghulam Hasan, J. Though in the defendants written arguments supplied to the court reference has been made to an implied consent to adopt, their Lordships are firmly of opinion that it is not open to the respondents to raise the question of implied consent. A perusal of the pleadings will clearly show that the only kind of adoption on which the case of the defendant was based was adoption of the second respondent by the Rani validated by the consent in writing of the deceased taluqdar. Reference may be made to paras. 6, 17 and 18 of the written statement. Not a trace of the plea of implied consent to adopt is anywhere to be found in the written statement and no issue has been raised on the point. In the circumstances their Lordships decline to consider the question.

16. The last ground urged is that the finding of the learned judges that the villages in question are non-taluqdari is not sustainable in law. In this connexion it will be advantageous to notice the following provisions of the Oudh Estates Act I of 1869:





Section 2:



Taluqdar means any person whose name is entered in "the first of the lists mentioned in section eight;

"Grantee means any person upon whom the proprietary right in an estate has been conferred by a special "grant of the British Government, and whose name is "entered in the fifth or sixth of the lists mentioned in "section eight;

"Estate means the taluqa or immovable property "acquired or held by a Taluqdar or grantee in the manner "mentioned in section three, section four or section five, or "the immovable property conferred by a special grant of the "British Government upon a grantee;

"Section 3:



Every Taluqdar with whom a summary settlement of the "Government revenue was made between the first day of "April 1858, and the tenth day of October 1859, or to "whom, before the passing of this Act and subsequently to "the first day of April 1858, a taluqdari sanad has been "granted,

"shall be deemed to have thereby acquired a permanent, "heritable and transferable right in the estate comprising "the villages arid lands named in the list attached to the "agreement or kabuliyat executed by such Taluqdar when "such settlement was made,



"or which may have been or may be decreed to him by the "Court or an officer engaged in making the first regular "settlement of the province of Oudh, such decree not having been appealed from within the time limited for appealing against it, or if appealed from, having been affirmed,

"subject to all the conditions affecting the Taluqdar "contained in the orders passed by the Governor-General of "India on the tenth and nineteenth days of October, 1859, "and re-published in the first schedule hereto annexed, and "subject also to all the conditions contained in the sanad "under which the estate is held.

Section 5:



Every Grantee shall possess the same rights and be "subject to the same conditions in respect of the estate "comprised in his grant as a Taluqdar possesses and is "subject, to, under section three, in respect of his estate.

"Section 8:



Within six months after the passing of this Act the Chief "Commissioner of Oudh, subject to such instructions as he "may receive from the Governor-General of India in Council, "shall cause to be prepared six lists, namely:



"First. - A list of all persons who are to be considered "Taluqdars within the meaning of this Act;

"Third. - A list of the Taluqdars, not included in the "second of such lists, to whom sanads or grants have been "or may be given or made by the British Government "up to the date fixed for the closing of such lists, declaring "that the succession to the estates comprised in such "sanads or grants shall thereafter be regulated by the rule "of primogeniture;

"Fifth. - A list of the Grantees to whom sanads or "grants may have been or may be given or made by the "British Government, up to the date fixed for the closing "of such list, declaring that the succession to the estates "comprised therein shall thereafter be regulated by the "rule of primogeniture;

"Sixth. - A list of the Grantees to whom the provisions "of section twenty-three are applicable.

Section 9:



When the lists mentioned in section eight shall have been "approved by the Chief Commissioner of Oudh they shall "be published in the Gazette, of India. After such publication, the first and second of the said lists shall not, "except in the manner provided by section thirty or "section thirty one as the case may be, be liable to any "alteration in respect of any names entered therein.

"If at any time after the publication of the said lists it "appears to the Governor-General of India in Council that "the name of any person has been wrongly omitted from or "wrongly entered in any of the said lists, the said Governor-General in Council may order the name to be inserted in "the proper list and such name shall be published in the "Gazette of India in a supplementary list, and such person "shall be treated in all respects as if his name had been "from the first inserted in the proper list.

Section 10:



No persons shall be considered Taluqdars or Grantees "within the meaning of this Act, other than the persons "named in such original or supplementary lists as aforesaid. "The Courts shall take judicial notice of the said lists and "shall regard them as a conclusive evidence that the "persons named therein are such Taluqdars or Grantees.

17. The Oudh Estates Act (I of 1869) was afterwards amended by the U.P. Act III of 1910. Relevant to the present appeal are the amendments of the definition of "Grantee," "Estate" (Section 2) and Section 3. After amendment, these provisions read as follows:



Grantee means any person whose name is entered in "the fifth or sixth of the lists mentioned in Section 8.

The words "upon whom the proprietary right in an estate has "been conferred by a special grant of the British Government "and" which occurred between the words "person" and " whose " in the old definition of the term have been omitted from the above definition with the result that no special grant need now be proved.

18. "Estate means (a) The taluqa or immovable property "acquired or held by a taluqdar or grantee in the manner "mentioned in Section 3, Section 4, or Section 5."

This clause is the same as the old definition except that the concluding words "or the immovable property conferred by a "special grant of the British Government upon a grantee" of the old definition have been omitted.

19. Section 3. The words" other than those relating to "succession" between, the words "conditions" and "contained" in the last clause and a new "explanation" have been added to the old section.

20. It should be noted that the above amendments operated retrospectively by Section 21 of the Amending Act of 1910.

21. The reasoning of the trial judge and of Ghulam Hasan, J., with whose conclusions the other learned judges agreed, may be best expressed in the language of Ghulam Hasan J., who stated as follows: "....these villages were not granted to "Raja Kashi Prasad under any sanad nor were decreed to him "during the first Regular Settlement, nor was any Summary "Settlement made with him between the 1st day of April, "1858, and the both day of October, 1859, as required by Section 3 "read with the definition of estate. It was purely a grant "recommended by the Financial Commissioner and accepted "by the Chief Commissioner. There can be no doubt, therefore that the villages are non-taluqdari property." To complete the history of the acquisition of these villages referred to above it may be mentioned that they were bestowed on Raja Kashi Prasad 011. August 6, 1869, which was subsequent to "the date fixed for the closing "of the list mentioned in Clause 5 of Section 8 of the Act. Under Section 9, Act I of 1869, the lists prepared by the Chief Commissioner of Oudh under Section 8 of the Act were published in (Jazette of India, dated July 31, 1869. The learned judge began the discussion of the question by quoting the unamended definitions of the terms "Grantee" and "Estate." It is clear that he has overlooked the retrospective amendment of the definition of a "grantee" in Section 2. In view of the retrospective amendment introduced by the Act of 1910 in the definition of a " grantee" Mr. Pritt argues that the second respondent is a " grantee "within the meaning of the Act, his name is entered in list five of Section 8 as a "grantee" and he therefore holds the villages in question in the manner mentioned in Section 5 of Act I of 1869. Mr. Page in reply contends that to entitle the second respondent to hold the villages as mentioned in Section 5, the "estate comprised in his grant " therein referred to should have been granted to the "grantee" before the closing of the list referred to in Clause 5 of Section 8. That date, July 31, 1869, being prior to August 6, 1869, when the villages were granted, it would follow - if the argument is correct - that the second respondent would not be entitled to these properties though his name finds a place in Clause 5, the latter fact being explicable on the ground that he holds other estates granted to him before July 31, 1869.

22. To meet the specific objection raised by learned Counsel for the appellants, Mr. Pritt amplified his arguments as follows: Kashi Prasad was clearly a "taluqdar," as his name is entered in the first of the lists mentioned in Section 8 (see Section 2). He was also a "Grantee," as his name was entered also in the fifth of these lists. Some property (not the four villages in question) must have been granted to him by the British Government prior to the date fixed for the closing of the lists, otherwise his name could not have appeared in the fifth list. The judges in India have overlooked the retrospective amendment (in 1910) of the definition of a "grantee." What is the result On July 31, 1869, he held certain lands as a "taluqdar" in the manner mentioned in Section 3 and certain other lands (not including the four villages) as a "Grantee" in the manner mentioned in Section 5. All these lands were "estates" within the definition in Section 2 and therefore became subject to the provisions of Section 22. After July 31, 1869, the four villages were granted to him by the British Government. Thereupon they became "estate" "held" by a person who was already a grantee; therefore they must be subject to Section 5 (and consequently Section 22) unless there is some section which says that lands granted after July 31, 1869, are held on some different footing. There is no such section. Section 8 (list 5) says nothing about the estates comprised in grants made after July 31, 1869. The Act is by no means clear on this point, but the lists are lists of persons, not of properties; and if a man comes within the definition of a grantee all land granted to him by the British Government, whether before or after July 31, 1869, is governed by Section 5 and Section 22.

23. According to the view presented by Mr. Page the phrase in Section 5 "the estate comprised in his grant" is linked up with Section 8 (fifth list) and only applies to an estate granted prior to July 31, 1869. Thus properties granted after July 31, 1869, such as the four villages, are subject to the non-taluqdari law of succession.

24. Their Lords-hips have to decide which of the above views is right. The arguments require careful consideration. No authority has, been cited in support of either view. Their Lordships have not had the benefit of the opinion of courts in India since the question was presented for consideration for the first time before the Board. After a long drawn out discussion. extending for about ten years concerning the rights of those landholders who were brought into existence in Oudh as a result of the well-known proclamation of Lord Canning of 1858, Act I of 1869 was specially passed to define the rights of Taluqdars and Grantees: in certain estates in Oudh and to regulate the succession to such estates. The Act was first amended by Act X of 1885 and was further amended by the U.P. Act III of 1910. As may be seen from the discussion of even the few cases which have been considered in this judgment, the construction of the provisions of the Act is not free from difficulty. Section 8 (fifth list) contemplated the inclusion within the list of all the grantees to whom grants had been made before July 31, 1869, so that their estate may fall within the operation of the Act. Under Section 9, Clause 2, provision was made for the publication of supplementary lists of taluqdars and grantees when necessary, making corrections in the original lists, and the names of persons appearing i n such lists were treated in all respects as if the names had been from the first in the proper list. It appears to be fairly clear that when the Act I of 1869 was passed the Government had intended to deal with all the grantees and taluqdars and the "estates" granted to them so that no trouble might arise thereafter in regard to the devolution of their estates. They may well have decided as a matter of policy not to make any fresh grants of "estates" subsequent to July 31, 1869, actuated by a desire to bring to a close, if possible, the difficulties which arose in connexion with the enforcement of the new land policy in Oudh. To put the matter shortly, it was not in the contemplation of the Government to grant any more "estates" which would come within the operation of the Act. In this view, if new properties came to be granted, they would, of course be non-taluqdari properties subject to the ordinary law of intestate succession. However this may be, it appears to their Lordships after careful consideration that Sections 5 and 8 (list 5) should be read together and the phrase "estate comprised in his grant" in Section 5 would apply only to an estate granted prior to July 31, 1869. It would therefore follow that the four villages in question (items 23, 24, 25 and 26) should be held to be non-taluqdari properties to which the appellants 1-5 be entitled. The sixth appellant would be entitled to whatever portion of the suit property he is entitled to under the agreement entered into with his mother by the appellants.

25. To sum up their Lordships conclusions: The disputed letters been proved to be genuine. The consent in writing of the deceased taluqdar (Chandra Shekhar) contained in them is not invalid for want of registration. The adoption of the second respondent is therefore valid under the Oudh Estates of 1869, with respect to all the taluqdari properties. The consent in writing not having been registered, his adoption by Ram is invalid and cannot take effect with respect to the non-taluqdari properties. If the adoption is invalid, it is not disputed that these would devolve on appellants 1-5.

26. In the light of the arguments advanced at the further hearing of this appeal in December, 1948, their Lordships will humbly advise His Majesty (1.) that the decree of the Full Bench of the Chief Court should be set aside and that the respondents be ordered to deliver to the appellants possession of (a) the properties set out in Schedules B(1.), B(2.), and B(3.) annexed written statement filed in the suit excepting Village a, item 29 in Schedule B(1.), the appellants accepting the accuracy of the said schedules including all notes in the Remarks column, and if any dispute arises as to the effect of such notes it shall be decided by the Chief Court; (b) the cash and movable properties set out in Schedule D annexed to the written statement, other than those shown in the Remarks to have been given away; (c) the promissory notes and mortgages set out in the list added to Schedule C annexed to the plaint in the suit under the order of July 31, 1939, and all moneys paid or realized on account of, or in satisfaction of any such securities as also any decrees obtained in respect thereof to the benefit of which decrees so far as they remain unsatisfied the appellants will be entitled: Provided that if the respondents within three months from the date of His Majestys Order-in-Council claim that any of the items in Schedules C a ad D are taluqdari property, such claim shall be decided by the Chief Court; (2.) that the respondents ought to pay to he appellants the sums of Rs. 2,168.2.0. and Rs. 495.1.7 mentioned in Schedule C annexed to the written statement; (3.) that the respondents ought also to pay to the appellants mesne profits without interest of the properties set out in Schedules B(1.), B(2.), and B(3.) annexed to the written statement filed in the suit (excepting Village Cheolaha and subject to the effect of the said notes in the Remarks column) from November 13, 1934, up to the date of delivery of possession; (4.) that the plaintiffs (appellants before this Board) ought to pay four-fifths of the costs of the defendant (respondent before this Board) of the original suit, and ought also to pay four-fifths of the defendants costs of the appeal to the Chief Court; (5.) that the case ought to be remitted to the Chief Court for an inquiry as to the amount of the aforesaid mesne profits, and after determining the said amount the Chief Court ought to pass a final decree for payment thereof to the appellants; and (6.) that the respondents ought to pay the appellants costs of the said inquiry in so far as such costs shall have been in the opinion of the Chief Court properly incurred.

27. The appellants must pay four-fifths of the respondents costs of this appeal, excluding the costs of the further hearing of the appeal in December, 1948, as to which their Lordships make no order.