The Collector Of Madhura v. Mottoo Ramalinga Sathupathy

The Right Hon. Sir James W. Colvile

The principal question raised by these appeals is the validity of an adoption made by the Widow of the last male Zemindar of Ramnad.

His title to that zemindary, which is of great extent, and, like many of the large zemindaries in the south of India, in the nature of a Raj, or principality, descendible to a single heir, was thus derived. In 1735, the then Zemindar, Moottoo Ramalinga Ssathupathy, having rebelled against the Government of the East India Company, was deprived of his zemindary, which in the month of July in that year was granted to his Sister, Ranee Mangalaswara Nachear. Her title was confirmed by a formal Sunnud, executed on the 22nd of April, 1803, Lord Clive, the then Governor of Madras, which granted the zemidary to her, her heirs, successors, and assigns. She was married to Ramasamy Taver, who died some time between 1797 and 1804; and in latter year Ranee Mangalaswara Natchear, then a Widow, and professing to act under a written agreement between her and her late Husband, adopted one Annasamy, his Nephew, whose title she afterwards confirmed by a Will executed on the 11th of April, 1807. She died in that year, and was succeeded by Annasamy. He had seven Wives, of whom only his chief Wife, Mootoo Veroyee Natchear, and the Appellant, Ranee Kunjara, need be mentioned, but had no male issue by any of them. And on the 26th of January, 1820, be adopted a Son, Ramasamy, who was the natural Brother, of Mootoo Veroyee Natchear, and, by a testamentary instrument of that date, confirmed that adoption, stating it to have been made "by himself and his chief wife, Mootoo Veroyee Natchear unanimously." He died in February, 1820, and was succeeded by Ramasamy, who died in 1830, without male issue, but leaving a Widow, the Respondent, Ranee Parvata Nachear, him. It is necessary to notice the unsuccessful suits by which the titles of Annasamy and Ramasamy were impeached during their lives, though some of the proceedings in them help to swell the voluminous record before their Lordships. The title of Ramasamy to the zemindary, as stated above, is the common ground of all the parties to this litigation, and, on the consideration of these appeals, must be taken to be incontestable.

On the death of Ramasamy, without male issue, his successor in the zemindary, according to the course of succession ab intestao, was his Widow. He had, however, two days, before his death, addressed to the Collector, as the representative of Government, the arzi of the 19th of April, 1830. In that document, after stating that he was suffering from smallpox, and that the issue of his illness was uncertain, he expressed himself as follows: "I have made an arrangement that my Mother, Ranee Mootoo Veroyee, who is my Guardian in every respect, and who holds chief right to this zemindary, should enjoy this zemindary and all other things, pay peishkist to the Cirkar; maintain my royal Wife, my Daughter, Mangalaswara, of five years old, and her younger Sister, a small child; and when these children shall attain their proper age, to make an arrangement with regard to their right to the zemindary, and continue the same; that my natural Brother, Moottoo Chella Taver, should manage the affairs of the zemindary until my children shall attain their proper age; and I have issued necessary orders for the strict observance of the above arrangement."

The affairs of the zemindary seem to have been managed under this arrangement between 1830 and 1840. The Respondent, Ranee Parvata Nachear, is said to have been herself very young at the date of her Husbands death: her children were infants; and the Mother-in-law was probably the only member of the family with any capacity for business. In 1840, Mangalaswara, the Daughter of Ramasdamy, who had previously been married, died after giving birth to a male child, who did not survive her. About that time differences arose between Ranee Parvata Nachear and her Mother-in-law, who appears to have set up some claim to the zemindary in her own right. The Board of Revenue, acting as Court of Wards, intervened; appointed, in April, 1840, Ranee Parata Nachear Guardian of Dorarajah, her infant Daughter, in the place of Mootoo Veroyee; and assumed the management of the estate, treating apparently Dorarajah as de facto Zemindar, either by virtue of the arzi executed by Ramasamy, or by reason of Ranee Parvata Nachears waiver of her rights in favour of her infant Daughter.

Dorarajah died on the 24th of September, 1845. She had previously been married, and having no children, attempted, on the day before her death, to adopt as a Son a child named Anadai. By the document, called her Will, she declared, however, that this person would only be entitled to the zemindary in succession to her Mother, Ranwee Parvata Nachear, whom she calls "the chief heiress to the zemindary." This adoption was communicated to the Collector by a Letter of the 23rd of September, 1845, bur was treated by him as invalid under the 25th section of Mad. Reg. V of 1804, because made by a disqualified landholders without the consent of the Court of wards. The Right of Ranee Parvata Nachear to the zemindary, as heiress either to her Husband or to her Daughter, was, therefore, recognised by the Revenue authorities, who, in April, 1840, put her in possession of it, as a qualified proprietor, and relinquished the management of it to her.

In the meantime, and ever since 1840, Mootoo Veroyee had been engaged in active litigation with Ranee Parvata Nachear and others for the enforcement of her alleged rights to the zemindary. The proceedings in her last suit are set forth in the record. For the most part they have no bearing upon any of the questions which their Lordships have now to determine; and it is unnecessary to notice any of them, except the supplemental rejoinder, which was filed by Ranee Parvata Nachear on the 6th of March, 1846; and the Razenamah, or agreement of compromise by which this litigation was terminated on the 26th of February, 1847. In the former Ranee Parvata Nachear asserted, apparently for the first time, a right to adopt a Son to her Husband, either under an alleged authority from him, in the event, which had happened, of both his Daughter, dying without issue, or under the more general power of adoption which is disputed on these appeals. By the latter, Mootoo Veroyee in consideration of the provision made for her and her Foster-son, Sivasamy, declared that Ranee Parvata Nachear might thenceforward enjoy the zemindary for ever, and, besides, might adopt a Son at her pleasure, as specified in the supplemental rejoinder.

It is clear, therefore, that whatever obscurity and confusion there may be in the history of the zemindary and its management between the death of Ramasamy 1830, and the Month of May, 1847, Ranee Parvata Nachear was at the last-mentioned date in undisputed possession as Zemindar of Ramnad.

In that state of things she made the adoption which is the subject of the present dispute. On the 19th of May, 1847, she gave notice to the Collector of her intention to adopt her Sisters younger Son, and invited him to be present at the ceremony. On the 24th of the same month she formally adopted the Respondent, Ramalinga. It is admitted that all the requisite ceremonies were duly performed, and that the adoption cannot be impeached, except on the ground of the insufficiency of her power to make one. The Board of Revenue, by an Order, dated the 10th of March, 1849, declared that the adoption was invalid, and that on the death of Ranee Parvata Nachear the Zemindary would escheat to Government. On the 23rd of July, 1855, the Madras Government set aside this Order, and determined to recognise the aoption until it should be declared invalid by a decree of a Civil Court. But on the 29th of October, 1855, the same Government cancelled its former Order, and confirmed the Order of the Board of Revenue of the 10th of March, 1849; and caused this, its final determination to be intimated to Ranee Parvata Nachear, through the Collector, by a Letter dated the 15th of November, 1855.

The first of the suits out of which these appeals arise (No. 3 of 1856) was instituted in that year by Ranee Kunjara, claiming, as the last surviving Wife of Annasamy, and her Daughter, Manalaswara, against Ranee Parvata Nachear alone. They impeached the validity of the adoption, insisted that on Ranee Parvata Nachears death Ranee Kunjara, as the next in succession, would be entitled to the zemindary, and claimed maintenance in the meantime. Ranee Parvata Nachear, by her answer, alleged that Ranee Kunjara was not the Wife but the Concubine of Annasamy and could have no title to the zemindary. Various persons afterwards intervened under different titled, and were all, by supplemental plaint, made parties Defendants to this suit. But none of them, except the Respondent, Ramalinga, and the Collector, are parties to these appeals, or have any interest therein.

The second of the two suits (No. 1 of 1860) was brought, in February of that year, by the Respondent, Ramalinga, who had then attained his majority, against Ranee Parvata Nachear and the Collector. Against the latter it sought to have the before mentioned order of intimation of the 15th of November, 1855, set aside as illegal; and against the former it prayed that immediate possession of the zemindary might be adjudged to the Respondent, Ramalinga.

The second suit was the first heard, and by his decree, dated the 18th of March, 1861, the Civil Judge ordered, that the Order of the Collector of the 15th of November, 1855 and his Orders to certain subordinate Officers therein referred to, should be cancelled; in that, as he had failed to establish any right to the estate, or to anvalidate the acts of Ranee Parvata Nachear in respect to it, he should abstain from all further interference; and that Ranee Parvata Nachear, subject to the provisions of Hindoo Law, and section 8 of Mad. Reg. XXV. of 1802, might, without the previous consent of the Collector, or of any other authority, assign and transfer to the Plaintiff (the Respondent, Ramalinga), or whomsoever she might think proper, by sale, gift, or otherwise, her proprietary right in the Ramnad Zemindary. The decree further declared, that it was to be without prejudice to the Collectors right to bring a regular suit for the estate, if he conceived that the Government had a superior title to the party in possession, but in prohibited him from summarily seizing it was an escheat whilst there were heirs.

The decree made by the same Judge in the first bore date the 12th of April, 1861. It found that Ranee Kunjara Nachear was one of the Wives of Annasamy, but that as such she had no right to succeed to the estate after Ranee Parvata Nachear, being only her stepmother, and therefore, excluded from inheriting; it further decreed, that the Zemindar of Ramnad, for the time being, should pay to the Plaintiffs (the Appellants, Ranee Kunjara Nachear and her Daughter) maintenance at the rate of Rs. 400 per mensem, the arrears of such maintenance from the date of the institution of the suit.

Against the first of these decrees the Collector, and against the second Ranee Kunjara and her Daughter, appealed to the High Court of Madras; and on the 26th of March, 1863, that the Court made an Order on both appeals, whereby it directed the Civil Judge to try the following issue: "Was the adoption made with the authority of Mootoo Veroyee, Widow of Annazamy, or with that of any others of the kindred of the late Zemindar, Ramasamy, in whose behalf the said adoption was made" It further gave certain directions as to the evidence to be produced on the trial of the issue.

This issue was according tried on the 1st of September, 1863; and the finding of the Civil Court were in effect, that the consent of Mootoo Veroyee, and of all the then surviving kindred of Ramasamy, had been obtained to the adoption. Against this finding the Collector, as well as Ranee Kunjara and her Daughter, again appealed to the High Court, which Court, on the 17 of November, 1864, after two hearings, pronounced and elaborate judgment in favour of Ranee Parvata Nachears right to adopt, and her exercise of it in the particular case, and in doing so the Court came to the following conclusions:-

First, that the Widow of the late Zemindar had made a valid adoption; that there was no doubt that it was made with the assent of the majority of her Husbands Sapindas; and that though it might be doubtful, whether the Civil Judge was right, there were not sufficient grounds for saying that he was wrong, in thinking that all the Sapindas then living had been proved to have assented.

Second, that, considering the extent of the property and the fact that she was the last surviving Widow of the Zemindar Annasamy, Ranee Kunjara was entitled to a more liberal maintenance than that awarded by the Civil Judge, and that such maintenance should be t the rate of Rs. 10,000 per annum. Subject to that modification, the decrees below were affirmed, and the appeals dismissed without costs.

From the decrees drawn up in conformity with this judgment, the following appeals have been presented, viz.:-

First, an appeal by the Collector, impeaching the validity of the adoption, and also objecting to so much of the decree of the 18th of March, 1861, as declared, or implied, that Ranee Parvata Nachear had power to alienate or effect the zemindary beyond her lie interest.

Secondly, an appeal by Ranee Kunjara and her Daughter, also impeaching the adoption; and further objecting to the decree of the 12th of April, 1861, in so far as it declared that Ranee Kunjara had no right of succession to the zemindary.

Thirdly, a cross appeal by Ranee Parvata Nachear and Ramalinga, objecting to the maintenance awarded by the High Court as exorbitant; and insisting that the decree of the Civil Judge ought not to have been varied in that respect.

All these appeals have been heard together; and their Lordships have now to dispose of them.

The principal contest has been upon the broad and general question, whether by the Hindoo law, as current what is known as the Dravada Country (wherein Ramnad is situate), a Widow can adopt a Son to her Husband without his express authority and if so, by whose assent that defect of authority must be supplied.

Their Lordships think it will be convenient to consider in the first place how this question really stands, upon the authority of Mr. Colebrooke and Sir Thomas Strange.

Mr. Colebrokes notes on the Mitacshara (chap. 1. sec. XI., art. 9) which has been much discussed, clearly involves three propositions: First, that the Widows power to receive a Son in adoption, subject to some conditions, is now admitted by all the Schools of Hindoo law except that of Mithila. Second, that the Benpal (or Gaura) School insist, that the Widow must have the formal permission of her Husband in his lifetime. Third, that some at least of the other Schools admit the adoption to be valid, if made by the Widow with the assent of Her Husbands kindred. The first two propositions are admitted, but it has been argued for the Appellants, that on the true construction of this note, Mr. Colebrookes authority for the last proposition is limited to the Mahratta School, in which the treatise called "The Muyookhu" is the predominant authority. Balam Bhatta, however, whom he cites as an authority for a power of adoption in the Widow wider even than that expressed in the third proposition, was a Commentator of the Benares School. And the several notes of Mr. Colebrooke, at pp. 92, 96, and 115 of the second volume of Stranges "Hindu Law," seem to their Lordships to show conclusively that he considered the doctrine embodied in the third proposition to be common to the followers of the Mitachsara in the Benares as well as in the Mahratta School, and as such to be receivable as the law current in the Zillah Vizagapatam, which lies within the northern, of Andra Division of the Dravada Country.

Again, Sir Thomas Stranges statement of the law in his work, Vol. 1., p. 79, is clear and unambiguous He says : "Equally loose is the reason alleged against adoption by a Widow since the assent of the Husband may be given, to take effect (like a Will) after his death; and, according to the doctrine of the Benares and Maharashtra Schools, prevailing in the Peninsula, it may be supplied by that of his kindred, her natural Guardians: but it is otherwise by the law that governs the Bengal Provinces."

Their Lordships entertain no doubt, that the terms "The Peninsula," as used here, and other passages by the same Author, denotes that part of India which is south of the line drawn from Ganjam to the Gulf of Cambay, and includes the whole of the Dravada District. The learned Counsel for the Appellants, however, appeal from Sir Thomas Strange as a text writer to Sir Thomas Strange Pillay (1 Stranges Mad. Cases, pp. 103 and 121), as opposed to this passage. In that case, Sir Thomas Strange, after citing the text of Vasishta, says: "Hence it may be inferred, what appears confirmed by opinions of living Hindoo Lawyers, and by every case of the kind we are acquainted with, that the consent of the Husband is indispensable to adoption into his family." But this passage as to the effect of the matured authority of Sir Thomas Strange. The precise question which is now under consideration, was not in issue in that case, where there was a written authority from the Husband, and where the real issue was, whether the Widow could adopt a boy nor designated in that written authority. Again, the case was decided in 1801 at a time when the ancient authorities of Hindoo law were far less accessible to an European Judge than they have since become. And Sir Thomas Strange, in his work composed twenty years later, says of this very case of Veerapermall Pillay v. Narrain Pillay, that the public was not then possessed of the extensive information contained in Mr. Colebrookes translation on the law of inheritance, and the Treatises on adoption since translated by Mr. Sutherland, to say nothing of the MSS. materials that came subsequently to his own hands, and which had contributed largely to every chapter of his work. There can, therefore, be no doubt but that the passage in his Book contains the matured opinion of Sir Thomas Strange, and that it must be treated as an authorative declaration of that opinion controlling his dictum in Veerapermall Pillay v. Narrain Pillay.

Having thus ascertained what was the opinion of two of the highest European authorities upon this question of the Hindoo law current in the Court of India, their Lordships have next to consider, whether any sufficient reasons has been assigned for treating the opinion as unfounded.

The remoter sources of the Hindoo Law are common to all the different schools. The process by which those Schools have been developed seems to have been of this kind. Works universally or very generally received became the subject of subsequent Commentaries. The Commentator put his own gloss on the ancient text; and his authority have been received in one and rejected in another part of India; Schools with conflicting doctrines arose. Thus the Mitacshara, which is universally accepted by all the Schools, except that of Bengal, as of the highest authority, and which in Bengal is received also as of high authority, yielding only to the Daya bhaga in those points where they differ, was a commentary on the Institutes of Yajnawalcya; and the Daya Bhaga, which, wherever it differs from the Mitachsara, prevails in Bengal, and is the foundation of the principal divergences between that and the other schools, equally admit and relies on the authority of Yajnawalcya. In like manner there are glosses and commentaries upon the Mitacshara which are received by some of the Schools that acknowledge the supreme authority by some of the Schools that acknowledge the supreme authority of that Treatise, but are not received by all. This very point of the Widows right to adopt is an instance of the process in question. All the schools accept as authoritative the text of Vasishta, which says, "Nor let a woman give or accept a Sonunless with the assent of the Lord." But the Mithila School apparently takes this to mean that the assent of the Husband must be give at the time of the adoption, and, therefore, what a Widow cannot receive a Son in adoption, according to the Dattaca form, at all. The Bengal School interprets the text as requiring an express permission given by the Husband in his lifetime, but capable of taking effect after his death; whilst the Muyookhu and Koustubha Treaties which govern the Mahratta-School, explain the text away by saying, that it applies only to an adoption made in the husbands lifetime, and is not to be taken to restrict the Widows power to do that which the general law prescribes as beneficial to her Husbands soul. Thus upon a careful review of all these Writers, it appears, that the difference relates rather to what shall be taken to constitute, in case of necessity, evidence of authority from the Husband, than to the authority to adopt being independent of the Husband.

The duty, therefore, of an European Judge who is under the obligation to administer Hindoo Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the District with which he has to deal, and has there been sanctioned by usage. For, under the Hindoo system of law, clear proof of usage will outweigh the written text of the law. The Respondent, Ramalinga, insists that, tried by either test, the proposition for which he contends, will be found to be correct.

The industry and research of the Counsel in the Courts below have brought together a catena of texts, of which many have been taken from works little known, and of doubtful authority. Their Lordship concur with the Judges of the High Court in declining to allow any weight to these. But the highest European authorities, Mr. Colebrooke, Sir, Thomas Strange, and Sir Willaim Macnaghten, all consult in treating as works of unquestionable authority in the South of India the Mitacshara, the Smriti Chandrika, and the Madhavyam, the two latter being, as it were, the peculiar Treaties of the Southern or Dravada School. Again, of the Dattaca Mimansa or Nandda Pandita, and the Dattaca Chandrika of Davanda Bhatta, two Treaties on the particular subject of adoption, Sir William Macnaghten says, that they are respected all over India; but that when they differ the doctrine of the latter is adhered to in Bengal and by the Southern Jurists, while the former is held to be the infallible guide in the Provinces of Mithila and Benares. The Dattaca Mimansa, by the Author of the Madhavyam, is also recognised as of high authority in the South of India by Mr. Ellis in his note at page 168 of the second volume of Stranges "Hindu Law."

Of these Treaties, the Mitacshara is silent on the point in question. The Dattaka Mimansa of Nanda Pandita (sec. 1, Articles 18 and 18, and Article 27 and 28) is opposed to the Respondents view of it; but it seems equally opposed to an adoption by a Widow, under any circumstances. The Dattaca Chandrika, (sec. I, Articles 31 and 32) allows a Widow to give a Son in adoption where her Husband has not forbidden her to do so, implying his assent from the absence of prohibition. The Smriti Chandrika also permits a Mother to give her Son, if she he autorized to do so by an independent male. And it is argued, that what these last two authorities lay down concerning a Widows right to give, must, by parity of reasoning, be taken to be laid down concerning her right to receive a Son in adoption. The Madhayavan (if that term is confined to the Parasara Madhaviya, and does not embrace all the works of Vidya Nariansamy) seems also to contain no direct determination of the point in question; but the Dattaca Mimansa of the Author clearly and explicitly declares the right of the Widow to adopt with the authority of her Father-in-Law, and whatever, other kinsmen of her Husband may be comprehended under that et caetera. It cannot, therefore, be said, that the proposition laid down by Mr. Colebrooke, and adopted by Sir Thomas Strange, is not supported by at least one of the original Treaties of undoubted authority in Dravada. The Dattaca Mimansa of Sri Rama Pandita, who is stated by the Judges of the High Court to be an authority very generally cited in the Court of India, also confirms the proposition.

Their Lordships have excluded from their consideration of what is the positive law of the Dravada Country the peculiarly Maharatta Treaties (the Muyookhu and Koustubha), and also the Viromitraodaya, which is s Treaties of especial authority at Benares. It must, however, be admitted; that the fact of the reception of the doctrine in question by Schools so closely allied to that Dravada is in favour of the hypothesis that it also obtains in the latter, and strengthens the authority which directly support that hypothesis.

The evidence that the doctrine for which the Respondents contended has been sanctioned by usage in the South of India consists partly of the opinions of Pundits, partly of decided cases. Their Lordships cannot but think that the former have been too summarily dealt with by the Judges of the High Court. These opinions, at one time enjoined to be followed, and long, directed to be taken by the Courts, were official, and could not be shaken without weakening the foundation of much that is now received as the Hindoo law in various parts of British India. Upon such materials the earlier works of European writers on the Hindoo law, and the earlier decisions of our Courts, were mainly founded. The opinion of a Pundit which is found to be in conflict with the translated works of authority may reasonably be rejected; but those which are consistent with such works should be accepted as evidence that the doctrine which they embody has not become obsolete, but is still received as part of the customary law of the Country. A considerable body of these futwas, or opinion, is collected in the third part of what has been called throughout the argument in this case the "Green Book." It is not necessary to consider, whether they can all of them be supported to the full extent of what they affirm. But they show a considerable concurrence of opinion, to the effect, that, where the authority of her Husband is wanting, a Widow may adopt a son with the assent of his kindred in the Dravada Country.

The decided cases, exclusive of those in the Bombay Presidency, which may be taken to be governed by the Muyookhu, are certainly not many. But there is at least the case G (Appanienyar v. Alemaloo Ammal, Mad. Sad. Dec., for 1858, pp, 5. 6.) decided by the late Sudder Court of Madras, and there are the French cases, which ought not, their Lordships think, to be wholly disregarded as recognitions of the law prevailing in the South of India. They are to be relied on in this case as affording evidence of a long continued series of opinions officially given, and judicially received, which were adopted as the grounds of decision, showing a continued and recognised existence of a doctrine, which suffices to remove from the opinions of the Pundits in this case every suspicious of being opinions of the Pundits in this case every suspicious of being opinions given to support interests or judgments of others. Against these authorities the Appellants have invoked that of the case of Raja Huimun Chul Singh v. Koomer Gunsheam Singh (2 Knapps P.C. Cases, p. 203). But what was in fact, decided by the late Sudder Court of Madras, and there are the French cases, which ought not, their Lordships think, to be wholly disregarded as recognitions of the law prevailing in the South of India. They are to be relied on in this case affording evidence of a long continued series of opinions officially given, and judicially received, which were adopted as the grounds of decision, showing a continued and recognised existence of a doctrine, which suffices to remove from the opinions of the Pundits in this case every suspicious of being opinions given to support interests or judgments of others. Against these authorities the Appellants have invoked that of the case of Raja Haimun Chull Singh v. Koomer Gunsheam Singh (2 Knapps P.C. Cases, p. 203). But what was, in fact, decided by a very guarded judgment delivered by the late Lord Wenseleydala in that case It was that, according to the native text-writers - including probably Vasishta, certainly including the Dattaca Mimansa of Nanda Pandita - the authority of the Husband was a requisite to a valid adoption; that the strictness of the law had been in many districts, and particularly in the Mahratta States, relaxed or modified by local usage, but that it had not been established their Lordships satisfaction that that relaxation had extended to the particular District of Etawah, in Upper India. Disclaiming, their intention to decide what was the law in that the law in that District did not require the direction of the Husband in order to the validity of an adoption, which it was necessary for them to do in order to reverse the judgment of the court below. It is clear that that decisions was not intended to govern, and cannot be taken to govern, a case arising in the South of India.

Upon the whole, then, their Lordships are of opinion, that there is enough of positive authority to warrant the proposition that, according to the law prevalent in the Dravada Country, and particularly in that part of it wherein the Ramnad zemindary is situate, a Hindoo Widow, not having her Husbands permission, may, if duly authorised by his kindred, adopt a Son to him. And they think that that positive authority affords a foundation for the doctrine safer than any built upon speculations touching the natural development of the Hindoo law, or upon analogies, real or supposed, between adoption according toe the Dattaca form, and the obsolete practice, with which that form of adoption co-existed, of raising up issue to the deceased Husband by carnal intercourse with the Widow. It may be admitted that the arguments founded on this supposed analogy are in some measure confirmed by passages in several of the ancient Treaties above referred to, and in particular by the Dattaca Mimansa of Vidya Narainsamy, the Author of the Madhvyam; but as a ground of judicial decision these speculations are inadmissible, though as explanatory arguments to account for an actual practice they may be deserving of attention.

It must, however, be admitted that the doctrine is stated in the old Treaties, and even by Mr. Colebrooke, with a degree of vagueness that may occasion considerable difficulties and inconveniences in its practical application. The question who are the kinsmen whose assent will supply the want of positive authority from the deceased Husband, is the first to suggest itself. Where the Husbands family is the normal condition of a Hindoo family - i.e., undivided - that question is of comparatively easy solution. In such a case the Widow, under the law of all the schools which admit this disputed power of adoption, takes no interest in her Husbands share of the joint estate, except a right to maintenance. And though the Father of the Husband, if alive, might, as the head of the family an the natural Guardian of the Widow, be competent by his sole assent to authorise an adoption by her, yet, if there be no Father, the consent of all the Brothers, who, in default of adoption, would take the Husbands share, would probably be required, since it would be unjust to allow the Widow to defeat their interest by introducing a new co-parcener against their Will. Where, however, as in the present case, the Widow has taken by inheritance the separate estate of her Husband, there is greater difficulty in laying down a rule. The power to adopt when not actually given by the Husband can only be exercised when a foundation for it is laid in the otherwise neglected observances of religious duty, as understood by Hindoos. Their Lordships do not think there is any ground for saying, that the consent of every kinsman, however remote, is essential. The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather that the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption. In such a case, therefore, their Lordships think, that the consent of the Father-in-law, to whom the law points as the natural Guardian and "Venerable protector" of the Widow, would be sufficient. It is not easy to law down an inflexible rule for the case in which no Father-in-law is existence. Every such case must depend upon the circumstances of the family. All that can be said is, that there should be such evidence of the assent of Kinsmen as suffices to show, that the act is done by the Widow in the proper and bona fide performances of a religious duty, and neither capriciously nor from a corrupt motive. In this case, no issue raises the question, that the consent were purchased, and not bona fide attained. The rights of an adopted Son are not prejudice by any unauthorized alienation by the Widow which precedes the adoption which she makes; and though gifts improperly the made to procure assent might be powerful evidence to show no adoption needed, they do not in themselves go to the root of the legality of an adoption.

Again, it appears to their Lordships that, inasmuch as the authorities in favour of the Widows power to adopt with the assent of her Husbands Kinsmen proceeded in a great measure upon the assumption that his assent to this meritorious act is to be implied. Wherever he has not forbidden it, so the power cannot be inferred when a prohibition by the Husband either has been directly expressed by him, or can be reasonably deduced from his disposition of his property, or the existence of a direct line competent to the full performance of religious duties, or from other circumstances of his family which afford no plea for a supercession of heirs on the ground of religious obligation to adopt a Son in order to complete or fulfil defective religious rites.

Their Lordships having thus stated the conclusions to which they come upon the general question of law involved in these appeals, will now consider whether the High Court of Madras has correctly applied that law to the facts of that present case.

They are of opinion, that both the Courts below were right in holding the collateral kinsmen of Ramasamy were to be found in the Taver family, of which the printed pedigree forms part of the record. According to Hindoo law, Ramasamy was the Son, though by adoption, of Annasamy; and he again was the Son, though by Adoption, of the first Ramasamy, who was a Taver; and the heirs of Ramasamy, in the absence of descendants, were traceable upwards through these two persons, as if they had been his natural Father and Grandfather. There is no ground for saying that this, the legal consequence of the successive adoptions, was affected by the assumption of the name of Ramnad and of Mangalswara, the Grantee of the zemindary. It is to be observed, however, that this line affords none but very remote kinsmen, if their relationship to Ramasamy be calculated on the principle just stated. The nearest of them, Mootoosamy, would on that principle stand in a degree of relationship to Ramasamy which, according to the rule of the Mitacshara (chap. 2, sec. v., art. 6), would exclude him from the category of Sapindas, and place him in that of Samanodacas, or those connected only by a libation of water and a common family name. He was, however, the natural Brother, of Annasamy, and that circumstances might strengthen his title to be considered, in the absence of nearer connections, the natural male protector of Ramasamys Widow. Again, the person who really filled the office of protector, and that by the express appointment of Ramasamy, was, up to the time of her quarrel with her Daughter-in-law, Mootoo Veroyee. Nor is it by any means unusual in a Hindoo family to find the Mother-in-law occupying a position of considerable power and importance. Moreover, she was unquestionably the heir to the property next in succession to Ranee Parvata Nachear, after the failure of Ramasay descendants. It, therefore, appears to their Lordships, that in this state of the family the assent of Mootoo Veroyee, of Mootoosamy, and of the other persons who are proved beyond all question to have assented, was sufficient to legitimate the adoption, even if the evidence has failed to prove the consent of the yet remote kinsman, Ramrajah Taver.

It has been argued, however, that even if this adoption would have been regular had Ramasamy died childless and intestate, his arzi relating to the management and descent of the zemindary contains an indication of his intention that his Daughters and their descendants should be his successors and representatives, which ought to be taken to imply a virtual prohibition of the act of adoption by his Widow. Their Lordships cannot accede to this argument. Ramamsay, no doubt, intended to be represented by his Daughters line, should that line continue. But he made no express provision for its failure, and the same reason which justify a presumption of authority to adopt in the absence of express permission are powerful to exclude a presumptive prohibited to adopt, when on a new and unforeseen occasion the religious duty arises. His Widow has not claimed a power to adopt, except on the happening of the contingency for which her Husband omitted to provide. And her power so limited, not having been qualified by his disposition, must be determined by the general law.

Another argument for the Appellants was founded on the attempted adoption of a Son, Annasamy, by Dorarajah. That person is not a party to either of these suits; he has not impeached the adoption of the Respondent, Ramalinga; he has on the Contrary, supported it as a witness. Nothing decided by the decree under appeal can prejudice his rights, if he has any, under an adoption which the Revenue authorities at the date of it seem to have treated as illegal. Their Lordships have not before them the necessary materials for determining, whether that adoption was in fact valid or invalid; or whether, if valid, it would have any mind, and what effect on the title of the Respondent, Ramalinga. In that state of things neither of the present Appellants can be allowed to insist on this supposed just tertii as an objection to the decrees which they impeach.

Their Lordships have, therefore, come to the conclusion, that these decrees, and the judgment on which they proceed, and substantially right, in so far as they affirm, as between the parties to this litigation, the validity of the adoption by Ranee Parvata Nachear of the Respondent, Ramalinga.

They also think that there is no foundation for the other and minor objection taken by the Collector to the decree of the 18th of March, 1861, on the ground that it asserts a power in Ranee Parvata Nachear to alienate of affect the zemindary beyond her life interest. Her power of alienation is expressly stated to be "subject to the provisions of Hindoo law;" and the only object of that part of the decree was to affirm her right to exercise that power within the limits prescribed by the Hindoo law, free from the control of the Government or its Revenue Officers.

Their Lordships are further of opinion, that there are no grounds for impeaching the decree of the 12th of April, 1861, in so far as it found that the Appellant, Ranee Kunjara, stood in the relation only of step-mother to Ramasamy, and, therefore, could have no right to inherit his estate. They think, that this conclusion is supported by the Will of Ranee Mootoo Veroyee, dated the 20th of January, 1820, which expressly states that Ramasamy was adopted by Annasamy and Ranee Mootoo Veroyee unanimously.

Upon the cross appeal their Lordships have only to observe, that the quantum of maintenance is a question with which the Courts of India, having local knowledge, and being conversant with the habits of native families, are peculiarly competent to deal with; and this Committee with their discretion in that matter. And their Lordships see no reason for questioning the soundness of the discretion exercised by the High Court of Madras in the present case.

Being, therefore, of opinion, that the decree under appeal are correct, and ought to be affirmed, their Lordships will humbly recommend to Her Majesty that the two appeals and the cross appal be each dismissed, with costs.