On appealfrom the High Court of Judicature at Bengal.
Observations upon the presumption of adoption, arising from the religious duty of a childless Hindoo to adopt a Son, and of the circumstances which rebut such presumption Held, that an alleged adoption by an Uncle of his Nephew, who at the time of such adoption was his Brother's only Son, was not as a fact proved to have taken place. Semble :- Such adoption, if made, was invalid by Hindoo Law. The effect by the Hindoo Law of an adoption, Dwyamushyayna (Son of two Fathers) is not to extinguish the adopted Son of his linage to his natural Father, or to bar him of his right of inheritance to his Father's estate. It is too late for the Respondent at the hearing of the appeal to object to its competency, on the ground that the amount in dispute was below the appealable value. Whether, in estimating the appealable value, Rs. 10,000, costs of suit can be added to the principal and interest decree Quare? [Para ] This suit was instituted by the Respondents to recover three-fourths of certain real and personal property in the possession of the Appellant, as joint heirs with him, to one Ramlochun Doss, the Brother of the Appellant, and the first Cousin of the three first-named Respondents; and as subsidiary there to set aside a decision of the Judge of Zillah Moorshedabad, made in a summary suit under Act, No. XIX of 1841, which upheld the possession of the Appellant to the entirety of the real and personal property, as Brother and sole heir-at-law of Ramlochun Doss. The principal questions raised in the suit were, whether Ramlochun Doss had been, as alleged by the Respondents, adopted by his and the Appellant's late paternal Uncle, Goorooproshad Doss, according to the requirments of the Hindoo Law received in Bengal, and, if so, whether the effect of such adoption was to put an end to his filial relationship to his own parents and all other natural ties, and consequently the fraternal relationship between him and the Appellant, and to create instead between them a new and more distant relationship of Cousins, thus removing him to the same degree of relationship to the deceased as that of the three first Respondents, and so to make him only an heir jointly with them; or whether, as a fact, Ramlochun Doss was given away in adoption by his natural parents, or whether he was brought up and treated by his Uncle, Goorooproshad, only as a Pulluck Puttro (foster son), and not as a Dattack Puttro (Son given by his parents); and, lastly, on the assumption that there had been a regular adoption of Ramlochun Doss, whether the Appellant, having been joint in estate and food with him, was not, even assuming him to be in the degree of Cousin only, his sole heir to the exclusion of the three first Plaintiffs and Respondents, also Cousins, but belonging to a separate and divided family. By the decree of the Principal Sudder Ameen of Zillah Moorshedabad, that Judge decided against the fact of such adoption, and dismissed the suit. The decree of the High Court reversed that finding, declaring in favour of the adoption, and decreeing to the Respondents three-fourths of the property, valued at Rs. 4,357: 15:17:3. The facts of the case were as follow: - Sreeshteedhur Doss, deceased, a Hindoo, had three Sons, the eldest, Gungadhur Doss the second, Goorooproshad Doss, and the third, Purmanund Doss. Gungadhur Doss, died, leaving three Sons, the Respondents, Bishumber Doss, Bishenroop Doss, and Hurrogobind Doss his heirs and representatives in estate. Purmanund Doss died, leaving five Sons, two by his first Wife, named Rajiblochun Doss and Ramlochun Doss, and three by his second, named Puddolochun Doss, Modosoodun Doss, and the Appellant, Nilmadhub Doss. The family was a joint undivided Hindoo family. It was alleged, that in the month of Aughran, B.E. 1211, Goorooproshad Doss, the second Son of Sreeshteedhur Doss, being childless, adopted his Nephew, Ramlochun Doss, as his Son. Rajiblochun Doss, the eldest Son of Purmanund Doss, was then dead. By an instrument, called a Hibbanamah, or deed of gift, bearing date the 9th of Falgoon, B.E. 1234, Goorooproshad Doss, being then about to start on a pilgrimage to Benares, transferred to Ramlochun Doss certain property mentioned in the instrument. Goorooproshad Doss died in the year 1237 B.E. and Ramlochun Doss thereupon took possession of his estate, which he enjoyed till the month of Aughran, 1238 B.E. when he died intestate, without issue, leaving his Wife, Anundmoye Dossee, him surviving. Anundmoye Dossee held possession of her Husband's property till her death. Puddolochun Doss and Modosoodun Doss both died childless. Upon the death of Anundmoye Dossee, the Respondents, Bishumber Doss, Bishenroop Doss, and Hurrogobind Doss and the Appellant, as co-heirs, became entitled to succeed to the property left by Ramlochun Doss, share and share alike, but the Appellant having taken possession of the whole of the property, the Respondents, other than the Respondents, Bhugoban Chunder Roy and Joygopaul Bannerjee, on the 30th of June, 1859, presented a petition to the Judge of Moorshedabad under the provisions of Act, No. XIX of 1859, praying for possession of three-fourths share in the property. The Appellant opposed this application, and by his answer disputed the fact of Ramlochun' Doss having been the adopted Son of Goorooproshad Doss, and asserted his own right to succeed by inheritance as step-brother of Ramlochun Doss to the whole of the property left by Ramlochun Doss. On the 1st of March, 1860, the Judge dismissed the petition with costs. The Respondents then filed their plaint against the Appellant in the Court of the Principal Sudder Ameen of Moorshedabad, laying their claim at Rs. 9,793.7a.5p., and thereby stated, amongst other things, that Goorooproshad Doss, paternal Uncle of the Plaintiffs, Bishumber Doss, Bishenroop Doss, and Hurrogobind Doss, having neither Son nor Daughter born to him, took, in the month of Aughran, 1211 B.E., with the view of securing to himself offerings of water and funeral cake, &c., his own Brother's Son, Ramlochun Doss, with the consent of Ramlochun Doss's parents, as Dattack Pootro, or what is more usually called Pooshoo Pootro, and that Goorooproshad Doss having thus taken Ramlochun Doss, brought him up, performed his sungskar, &c. (ceremonies of adoption), and making him his own representative, transferred to him by a deed of Hibbahnamah, dated the 9th Falgoon, 1234 B.E., the property set out in the schedule to the plaint; that after the death of Goorooproshad Doss, Ramlochun Doss, in his right of a Pooshoo Pootro (adopted Son), enjoyed possession of the property till his death in the month of Aughran, 1238 B.E.; that Ramlochun Doss left a childless Widow, Anundmoye Dossee, who, as his heiress, held possession of the property left by him till the 3rd Falgoon, 1265, when she died; and that, in accordance with the Hindoo Shastres received in Bengal, the Plaintiffs, Bishumber Doss, Bishenroop Doss, and Hurrogobind Doss, and the Defendant, Nilmadhub Doss, were entitled to share, by right of succession, equally the property left by Anundmoye Dossee, and which she had obtained from her Husband, Ramlochun Doss, and they sought to have the summary decision of the Judge of Moorshedabad of the 1st of March, 1860, set aside, and to obtain possession by virtue of their right of inheritance of three-fourths of the property left by Ramlochun Doss. The Appellant filed a written statement by way of answer, and stated that Ramlochun Doss was the step brother of the Appellant, and that Goorooproshad Doss had never adopted him or performed the Pootrashee (initiatory ceremony of adoption), and that, in fact, Ramlochun Doss, at the time of the alleged adoption, was the only Son of their Father, Purmanund Doss and that he and his Wife did not give in adoption his eldest and only living Son; that no deed of gift had been executed and registered, which would have been the case had such alleged adoption taken place; and that, if there had been such adoption, there would have been no necessity for the Hibbahnamah, in which deed, admitted and witnessed by the three first Plaintiffs, Ramlochun Doss is described as Pulluk Pootro (Foster Son) only. And the Appellant submitted and contended that, according to the Hindoo Law, such a Son was not equal to a Dattaca (given Son), or Pooshoo Pootro (adopted Son); that the late Gungadhur Doss, the Father of the first three Plaintiffs, had, in his several petitions, admitted that Ramlochun Doss was not the adopted Son of Goorooproshad Doss, and that they were bound by his admission. The answer also denied that Ramlochun Doss performed the Shradh of Goorooproshad Doss, and stated that, on the contrary, he had actually performed those of his own Father, Purmanund Doss, and that both those facts were admitted in the petition of Gungadhur Doss; that Goorooproshad Doss and Purmanund, Ramlochun Doss, the Appellant and two other Sons of Purmanund, continued to the as Brothers, and as a joint and undivided Hindoo family in food and in estate; that their Brother, being dead, the Appellant was, on the death of the Widow of Ramlochun Doss, entitled, under the Hindoo Law, to his estate, and further, that his Widow, without objection from the Appellant, had assigned the property to the service of Issur (idol) under the superintendent-ship of the Appellant. Issues were framed and witnesses examined. Documentary evidence was also filed, including the Hibbahnamah, and the case came on for final hearing before Baboo Punchanund Bannerjee, the Principal Sudder Ameen of Moorshedabad, who held, that Ramlochun Doss had not been adopted by his Uncle, Goorooproshad Doss; that the deed of gift of the 9th of Falgoon, 1234, was false and fraudulent, and, as upon the admission of the Plaintiffs, Ramlochun Doss had been in possession of the estate of the deceased Goorooproshad Doss for so long a period under the deed of gift, that save and except the Defendant, Nilmadhub Doss (the Appellant), who was the half-Brother of the late Ramlochun Doss, the Plaintiffs (the Respondents) could not be entitled to the property left by him; and it was, therefore, ordered, that the suit be dismissed, and the costs of the Defendant, together with interest thereon, at one per cent, per month from the date up to the date of payment, be awarded from the Plaintiffs. The Respondents appealed from this decision to the High Court at Calcutta. The appeal came on for hearing on the nth of February, 1863, before Sir Barnes Peacock, Chief justice, Mr. H.B. Bayley, and Mr. F.B. Kemp, two of the Puisne Justices of the High Court, who held, that the adoption of Ramlochun Doss by Goorooproshad Doss did as a fact actually take place, and that it was a good and valid adoption; that if the deed of gift of the 9th of Falgoon, 1234, had been false and fraudulent, the title of Ramlochun Doss would have been based upon a fraud, and that consequently there would have been no valid adverse possession by him as against the Respondents (other than the Respondents Bhugoban Chunder Roy And Hurrogobind Bannerjee), who, as the representatives of Gungadhur Doss, the only surviving Brother of Goorooproshad Doss at the time of his death, and his sole heir would have been entitled to the whole of the property left by him, but that both parties were bound by the deed; and by its decree of the same date, the High Court decreed to the Plaintiffs three-fourths of the estate claimed, as set out in the Hibbanamah, with mesne profits from the date of the death of Anundmoye Dossee, the amount to be ascertained by local inquiry; that as the claim to certain Lakhiraj lands and pucka buildings had been abandoned by the Appellants, those properties were not included in the decree, and decreed the Appellants' costs in proportion to the valuation of the property decreed, with interest upon those costs at the rate of 12 per cent, per annum to the date of realization. The Appellant being dissatisfied with this decree, presented a petition to the High Court, for leave to appeal to England, praying that the same might be admitted, stating that although the amount in suit was less than Rs. 10,000, yet that the value of the zamindary was more than Rs. 10,000; and further, that the costs of the Appellants in both Courts were, by conjecture, more than Rs. 1,200, and that the interest was to be added, and, therefore, calculating it at that rate, the appeal was admissible to the Privy Council. The petition was heard by Mr. Walter Scott Seton-Karr, one of the Judges of the High Court, on the 2nd of May, 1863, who made the following Order:--"Seeing that the costs, when added, will raise the sum in dispute beyond the limit of Rs. 10,000, this appeal is admitted. The amount of the actual decree is Rs. 9,703." The Appellant afterwards applied for a review, which was on the 2nd of October, 1863, refused. It did not appear that any application was made to appeal from the Order refusing a review, and the present appeal was confined to the decree of the High Court of the 11th of February, 1863. The right of the Respondents to share in the property in suit depends on their proving a regular and complete adoption, according to Hindoo Law, of Ramlochun Doss, by Goorooproshad Doss, his Uncle, which fact they failed to do. Ramlochun Doss was not, and indeed could not, have been legally adopted or given, inasmuch as at the time of such alleged adoption, he was the only Son of his Father, and, therefore, ineligible. Dattaka-Chandrikd, sec. I, pla. 20, 21, 27 [Trans by Sutherland]. Strange's "Hindu Law," Vol. I., p. 85 [2nd Ed.]. Which fact he was well aware of, as he continued during his lifetime to use his original name, and he performed, an eldest Son, his natural Father's Shradh and obsequial rites, and took by inheritance his share of his Father's estate, jointly with the Appellant and his other Brothers. Even if the forms and rites of adoption had been proved to have taken place, yet as Ramlochun Doss could not have become, and was not intended to be, an adopted Son (Sudha Dattaka) to his Uncle: he must be considered as having been merely affiliated by him, or he might have been Dwyamushyayana, or Son of two Fathers. W.H. Macnaghten's "Hindu Law," Vol. I., p. 71; Strange's "Hindu Law," Vol. I., pp. 86, 100 [2nd Ed.]; in which case there would be no extinction of the lineage of his natural Father, with whom the filial relationship would continue, as well as the paternal relationship with the Appellant, who is entitled to the entire property in question, as his only Brother and sole heir. The decree of the High Court proceeds on an erroneous construction of the language of the Hibbahnamah made by Goorooproshad Doss, who was an educated Hindoo, in favour of Ramlochun Doss, inasmuch as the meaning of the term "Pulluck-pootro," used there, in describing him, means Foster Son only, and not adopted Son, which latter term is always described among Hindoos by the term "Pushoo pootro," or adopted Son, or "Dattack pootro" or a given Son. We insist, therefore, that the Principal Sudder Ameen was right in deciding, that the weight of evidence was in favour of the Appellant's claim, that Ramlochun Doss was not given by his parents, or that there was any regular adoption by his Uncle, which contention is strongly corroborated by the latter having deliberately used in the Hibbahnamah the distinctive term "Unomuttee," or permission of the parents, instead of the ordinary and proper term "Daun" gift of parents, where a Son has been actually given in adoption. There is a preliminary objection to this appeal being entertained. The sum at issue in the suit does not amount to Rs. 10,000. Neither the decree of the nth of February, 1863, or the Order of the 2nd of October, 1863, involve directly or indirectly any claim, demand, or question to property amounting to the value of Rs. 10,000; nor has the High Court made any declaration as required by the 39th section of the Letters Patent of 1865, constituting the High Court, that this is a fit case for appeal here, and no special leave to appeal has been granted by this Tribunal. Mr. Justice Seton-Karr has improperly added costs to make up the appealable value. The Lord Justice Selwyn :- It would be very prejudicial to the Appellant to allow, at this stage of the appeal, the objection now urged to the right of appeal on the ground of the want of appealable value. If there is any foundation for such objection, it ought to have been taken when the petition of appeal was lodged; this would not only have saved expense, but would have given an opportunity to the Appellant to have shown that there was nothing in the objection, which is our present opinion. Mr. Mortimer :- Then, upon the merits, I submit, that the adoption of Ramlochun Doss by Goorooproshad Doss, was a valid adoption by Hindoo Law, and by virtue thereof, and in the event that has subsequently happened, the Respondents, Bishumber Doss, Bishenroop Doss, and Hurrogobind Doss, became, on the death of Anundmoye Dossee, co-heirs with the Appellant of Ramlochun Doss and entitled as such to succeed with him to the property left by Ramlochun Doss, in equal shares. Adoption, in the event of a Hindoo having no natural Son, is most important, and there is a strong presumption in favour of the adoption in this case. A Nephew may perform the obsequies of his deceased Uncle, but it is admitted that it is not so effective as those of an adopted Son. The Son of a Brother is the most preferable to be adopted, Dattaka-Chandrika sec. I, pla. 20. Here Ramlochun Doss filled that character. It is true that an only Son cannot by Hindoo Law be adopted, Raja Upendra Lal Roy v. Srimati Rant Prasannamayi 1 Ben. Law Reps. App. Civil Side, 221., but here that objection cannot prevail, as Ramlochun Doss had other Brothers. If the Principal Sudder Ameen was right in his finding that the Hibbahnamah was a forgery put forward by Ramlochun Doss, which it is submitted was not the fact, then the Respondents, Bishumber Doss, Bishenroop Doss, and Hurrogobind Doss were, at the time the suit was brought, entitled, as Sons and heirs of Gungadhur Doss, the surviving Brother, and heir of Goorooproshad Doss, to the whole of the property included in the Hibbahnamah, three-fourths of which have, by the High Court, been decreed to the Respondents. The Respondents do not claim under the Hibbahnamah, but only refer to it as corroborative testimony of Ramlochun Doss's adoption. That deed was only intended as a family settlement of the estate of Goorooproshad Doss, and was not prepared with that care which it might otherwise have been. The consideration of the case stood over. Case Referred :- Raja Upendra Lal Roy v. Srimati Rant Prasannamayi, 1 Ben. Law Reps. App. Civil Side, 221.(a) See Doorga Doss Chowdry v. Ramanauth Chowdry, 8 Moore's Ind. App. Cases, 262, where it was held, that costs of suit could not be added to the principal sum and interest in calculating the appealable value of Rs. 10,000, the amount restrict by the Order in Council of the 10th of April, 1838.
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