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19071 107 P.L.R. 1901.]

* First Appeal Nos. 154 and 1G'2 from the decrees of Munshi Madho Lai, Subordinate
Judge of Saharanpur, dated the llth August, 1389.

406



YII] CHAIN SUKH BAM V. PABBATI 14 All. 55

THESE were two suits which both related to the same property and 1891 '

raised the same question of law, viz., as to the possibility of a person of the j$ov. 38.
casts known as "Bohra Brahmans" making a valid adoption of his sisuer^s

son. The appeals ware heard together and one judgment pronounced in . APPEL-

both. The facts of these cases so far as thay are necessary for the pur- LAT3

poses of this report sufficiently appear from the judgment of the Court. CIVIL

Babu Rajendro Nath Mnkerji, for the appellants, ] '

Pandit Ajudhia Nath, Munshi Kashi Prasad, and [in F. A. No. 154. 13 A. 53 =

Pandit Sundar Lai, for the respondents. ) 11 A.W.N,

Mr. Conlan and Mr. D. Banerji, for the appellants. ] (1891; 222:
Pandit Ajudhia Nath, Munshi Kashi Prasad, [ . p A M ico
Pandit Sunder Lai and Babu Rajendro Nath
Milker ji, for the respondents. . j

JUDGMENT.

EDGE, C. J., and TYRBELI/, J. In these two first appeals which have
been heard by us we thought it advisable to deliver a written [5$] judg-
ment, as the questions upon which the appeals in 'our judgment depend
are questions of very great importance to a considerable portion of the
Hindu community in some of the northern districts of these provinces.

The suits out of which these appeals have arisen were suits in
which the possession of property was claimed.

First; Appeal No. 154 of 1889 was from a decree of the Subordinate
Judga of Saharanpur dismissing the original suit No. 151 of 1835. In
that suit the plaintiffs alleged that one Prem Sukh Das, deceased, became
the owner and possessor of certain property specified in the plaint under a
will made in 1875 by one Baldeo Sahai, who had been the proprietor.
The plaintiffs alleged that on the death of Prem Sukh Das without issue,
on the 3rd of December, 1879, his estate devolved according to Hindu law
on the descendants of Ishar Das, and that one Manga! Bam, who was
one of such descendants, by a deed, dated the 30th of July, 1885, gave his
one-third share to the plaintiffs. The plaintiffs sought by their suit to
recover such one-third share from the defendants, Musammat Parbati
and Musammat Sundar, who are the widows of Baldeo Sahai and are in
possession.

First Appal No. 162 is from a decree of the Subordinate Judge of
Saharanpur, which dismissed the original suit No. 30 of 1886. In the
latter suit the plaintiff's, who are two of the descendants of Ishar Das,
claimed certain shares in the same property, which had been of Baldeo
Sahai, alleging that Prem Sukh Das took that property under the will of
Baldeo Sahai of 1875, and that on the death without issue of Prem Sukh
Das, on the 3rd of December, 1879, the property devolved according to
Hindu law on the descendants of Ishar Das.

The plaintiffs in original suit No. 30 of 1886 sought to recover the
shares to which they alleged that they were entitled from Musammat
Parbati and Musammat Sundar, the widows of Baldeo Sahai. The plain-
tiffs in original suit No. 151 of 1885 were made pro forma defendants
in original suit No. 30 of 1886.

[55] In each suitmesne profits were claimed.

The main defence relied upon by Musammat Parbati and Musammat
Sundar in each suit was that Prem Sukh Das bad been adopted in 1871,
as a son by Baldeo Sahai, and that Prem Sukh Das having been so
adopted took the property of Baldeo Sabai as such adopted son and not
under the will of 1875, and that according to Hindu law the property

407



13 All. 56 INDIAN DECISIONS t NEW SERIES [Yol.

1891 of Prem Sukh Das as the adopted son of Baldeo Sahai did not devolve on

NOV. 28. his death, or at all upon the descendants of Ishar Das, and that the

widows of Baldeo Sahai were not only in possession but were entitled as

APPEL- the mothers of Prem Sukh Das to the possession of all the property

LATE claimed.

ClVIL. Prem Sukh Das was the son of Ohajju Earn, who was a grandson

of Ishar Das. Prem Sukh Das' mother was a sister of Baldeo

14 A. S3= Sahai. Baldeo Sahai was not descended from Ishar Das. Baldeo
1 A.W.N. gabai and Chajju Earn were Bohra Brahmans. On behalf of the
91) 222. defendants-respondents, Musammat Parbati and Musammat Sundar,
it was not contended that according to the Hindu law, apart from
custom, Baldeo Sahai could legally have adopted his sister's son, Prem
Sukh Das, but it was contended that, according to a general custom of
Bohra Brafrmans in the part of the country in which Baldeo Sahai and
Chajju Earn resided, a Bohra Brahman could legally and validly adopt his
sister's sou. On behalf of the plaintiffs- appellants in First Appeal
No. 154 of 1889 it was contended before us that Baldeo Sahai never did in
fact adopt Prem Sukh "Das, and further, that if Baldeo Sahai did in fact
adopt Prem Sukh Das, the custom alleged by Musammat Parbati and
Musammat Sundar was not proved to exist, and if it did exist it could not
control or vary the Hindu law, and that the alleged adoption was conse-
quently illegal and void.

On behalf of the plaintiffs-appellants in First Appeal No. 162 of 1889,
the fact that Baldeo Sahai had adopted Prem Sukh Das was not disputed,
but it was contended that no such custom as alleged had been proved, or,
if proved, could control or vary the Hindu law, and that the adoption
was consequently illegal and void.

[56] On behalf of Musammat Parbati and Musammat Sundar it was
further contended that by reason of Art. 118 of ths second Schedule of
the Indian Limitation Act (Act XV of 1877) neither the fact nor the
validity of the adoption of Prem Sukh Das could now be questioned. In
support of this last contention the decision of their Lordships of the Privy
Council in Jogadamba Chowdhrani v. DaJchina Mohun (1) was relied upon.
Being of opinion, for reasons presently to be stated, that the fact of the
adoption and the custom relied upon in support of the validity of that
adoption have been proved, and that the custom which has been proved is
a valid custom, we do not intend to express any opinion upon the question
of limitation or on the other questions which it would become necessary
to consider if we were of opinion that the adoption had not in fact taken
place or was invalid. It is common ground that if Prem Sukh Das was
validly adopted by Baldeo Sahai, the plaintiffs-appellants in each appeal,,
have no title to the property, fir any of it, in dispute.

We shall first deal with the question as to whether such a custom
as that alleged can legally exist, and can control and vary the Hindu law
applicable to adoption amongst Brahmans. On behalf of the plaintiffs-
appellants, it was strongly contended that the point was concluded by the
judgments, of their Lordships of the Privy Council in Sundar v. Parbati (2),
in which case their Lordships, at page 193 of the Eeport, are reported to
have said : "If it were necessary to determine the point, their Lordships
would probably have little difficulty in accepting the opinion of the High
Court that a Hindu Brahman cannot lawfully adopt his own sisters's son."
In that case in which the suit was between the now defendants-respondents,

(1) 13 LA, 84 = 13 C. 308. (2) 16 l.A. 186.

408:



YH] CHAIN SUKH BAM V. PABBATI 14 All. 58

Musammat Parbati and Musammat Sundar, and by which Musammat 1891
Sundar sought a decree for partition of the property now in suit, the Nov. 28.

question as to whether such a custom as is now alleged could be valid was

not before their Lordships of the Privy Council or before this Court when APPBL-
that case was before this Court, on appeal from the decree of the 27th of LATB
February 1884 of [57] the Subordinate Judge of Sharanpur, although it has, CIVIL,
during the arguments of these appeals, been stated, but whether correctly^
or not we have nothing on these records to show that evidence of tha alleged ' s * a *

custom was tendered in the Court of the Subordinate Judge in that
case. The validity of such a custom by which a sister's son may be '
adopted amongat Nambudri Brahmans in Malabar, and of a similar custom
by which a daughter's son may be adopted amongst the Brahmans of
Tanjore, Trichinopoly and Tinnevelly have been judicially recognized by
Full Benches of the Madras High Court in the cases Eranjoli lllath Vishnu
Nambudri v. Eranjoli lllath Krishnan Nambudri (1) and Vaiydinada
v. Appu (2). The validity of a custom by which, amongst certain tribes
of Brahmans in the Punjab, a sister's son or a daughter's son may
be adopted has been judicially recognized by the Chief Court of the
Punjab. The cases relating to the Punjab are collected in the notes
to pages 341 and 342 of Golap Chandra Sarkar's Hindu Law of Adop-
tion (Tagore Law Lectures, 1888). That the. generally accepted rule
of the Hindu law which prohibits amongst the twice-born classes the
adoption of a sister's or a daughter's son has been in many parts of India
controlled and varied by custom, or possibly never followed, may be gather-
ed from the cases collected in the notes to paragraph 124, pages 137 and
138 of the 4th edition of Mayne's Hindu Law and Usage. In Mandlik's
Hindu Law of Mayukha and Yajnavalkya at pages 478 et seqg., grave doubts
are raised to the authenticity of the alleged principle of Hindu Law that
the person to be adopted must be one who, by a legal marriage with his
mother, might have been the legitimate son of the adopter. Mr. Mandlik
in his valuable treatise contends that the grafting on to Hindu Law ol
that principle is the result of wrong analogies and unwarranted general-
ization founded on imperfect translations of original texts. Mr. Mand-
lik, at page 478, speaking of the Bombay Presidency, says ; " In like
manner is the adoption of a sister's son common among the Hindus
in this Presidency amongst all castes and classes. Still more
common is the adoption of a dauhetra (daughter's son)." The [58j
question as to whether Mr. Mandlik's views as to the origin and
authenticity of the principle referred to are correct or not must now be
left for the decision of their Lordships of the Privy Council. Fortunately
for us, we need not in the appeals now before us express any opinion on
that subject. Assuming for present purposes that the rule laid down by
Mr. Sutherland in 1821 that " The first and fundamental principle is that
the person to be adopted be one who by a legal marriage with his mother
might have been the legitimate son of the adopter," is the correct rule of
Hindu law applicable to the three superior or twice-born classes of Hindus,
we need only say that we agree with the learned authors of West and
Bublers' Digest of Hindu Law that the Hindu Law is "subject, even
without a statutory provision, to modification by custom, which indeed
may be regarded as the basis, for all secular purposes, of the Hindu Law
itself. Thus when a custom is proved it supersedes the general law so far
as it extends, but the general law still regulates all that lies beyond the

(1) 7 M. 3. (2) 9 M. 44.

409
A VII 52



14 All. 59 INDIAN DECISIONS, NEW SERIES [Yol.

1891 scope of the custom." (West and Buhler's Digest of Hindu Law, 3rd
Nov. 28. Edition, Vol. I, pp. 1 and 2).

Their Lordships of the Privy Council have recognised the fact that

APPEL- Hindu Law may be varied by custom in such important matters, amongst

LATE others, as the descent in a family and the partibiliby of ancestral property.

CIVIL ^ e en * ier * iam no doubt that a custom amongst Bohra Brahmans

' generally or among Bohra Brahmans of a particular part of the country

14 A. 53= that a sister's son may be adopted, if proved, is a valid custom and legalises
11A.W.N. such an adoption.

(1891) 222, We shall now proceed to consider whether or not such a custom has

been proved so far as the Bobra Brahmans of that part of the country
within which and in the neighbourhood of which Baldeo Sahai and Chajju
Bam resided are concerned.

The Bohra Brahmans came into the northern districts of these Provin-
ces from Palli or Pali in Eajputana. They are a caste of trading Brah-
mans, as the name of the caste indicates. According to Gallon's Hindu-
stani- English Dictionary, at pago 283, " bobra " means " a village banker
or money-lender," and also according to [59] Fallen u the Bohras appear
fco have originated in Guzerat, where they became converts to Muhamma-
danism, but they are settled in many parts of Central and Western India
and in the North- Westerrj Provinces.

In that part of the Statistical Description and Historical Account of
the North-Western Provinces of India, prepared under the orders of the
Government of India, which relates to the district of Muzaffernagar,
volume III, part 2, page 494, we find it stated that '' the Eahitis or Bohras
are sometimes classed amongst the subdivisions of the Gaur tribe of the
great Gaur division under the names of Palliwals, but they are now so
completely separated from the Brahmans as a. body that they are usually
regarded as one of the miscellaneous tribes of Brahmanical origin. Other
names for this trible are Athwariya, Barhar and Kaniya. ' These Bohras
are emigrants from Marwar, and are called Palliwal from their original
seat, Palli. They are the great usurers and pawnbrokers of the Upper
Duab, &c."

In the course of the arguments before us the evidence recorded in
each suit was read by those who appeared for the different parties as
evidence in both suits. It was stated by Pandit Ajudhia Nath, who
appeared for Musammat Parbati and Musammat Sundar in First Appeal
No. 154 of 1889, but disputed by those who represented the other parties,
that in the Muzaffarnagar and neighbouring districts the priests of the
Banias were Bohra Brabmans. There is no evidence before us on the
point, and we merely mention the statement as an explanation which was
offered of the fact that there is much evidence on the records in the
appeals before us of a custom amongst those of the Bania cases of that
part of the country by which a sister's son may be adopted.

In support of the existence of the custom amongst Bohra Brahmans
there were, amongst others, a great number of Bohra Brahman witnesses
called. At least ten of those Bohra Brahman witnesses were from the
Muzaffarnagar district, seven were from the Meerut district, whilst others
of them were from Bulandshahr, [60] Aligarh, Delhi, Saharanpur, Muttra,
Etawah and Cawnpore. All of those witnesses spoke to the present existence
of the custom, many of them gave instances of adoptions of sisters'ssons
and many of them said that they had been informed by their fathers
and ancestors that the custom existed. So far as has been brought to
our attention there were only two cases of such adoption in which it

410



CHAIN SUKH BAM V. PARBATI



14 All 61



was shown that the adopted son had not succeeded to the property of the
parson who bad adopted him, and in one of those two cases the adopted
son had received from the other members of the family a substantial
sum in money. We agree with the Subordinate Judge that the custom
was proved. We see no reason for thinking that all those Bohra Brah-
man witnesses, to whom we have referred, committed perjury. We were
much pressed with the fact that Baldeo Sahai had in 1875 executed a
will in favour of Prem Sukh Das. It was contended from that fact that
Baldeo Sahai had never, in fact, adopted Prem Sukh Das, and that
if he had, in fact, adopted Prem Sukh Das, he knew that the adoption
was invalid, and on the latter point the evidence in cross-exami-
nation of Musammat Parbati (document No. 448) was also relied
upon. In cross-examination Musammat Parbati said " Baldao Sahai had
executed the will also in favour of Prem Sukh. I had asked Baldeo Sahai
why he was executing the will. He told me that it was aot allowed in
the Shastras to adopt a son of a sister. Baldeo Sahai was under the
impression that it was not allowed in the Shastras to adopt a nephew."
It is very possible that Baldeo Sahai may have heen under the impression
that such an adoption was invalid according to the Shastras and that the
custom amongst the Bohra Brahmans might not be held by the Courts as
sufficient to validate the adoption. One thing which is obvious is that
Baldeo Sahai intended, in the event of a son or sons being subsequently
born to him, to secure by his will to Prem Sukh Das a greater share of
the property than Prem Sukh Das would under such circumstances take
as an adopted son.

Whatever may have been the opinion, the doubis or objests of Baldeo
Sahai in 1875, 15 is in our opinion beyond doubt that [61] Baldeo
Sahai in 1871 did, in fact, adopt Prem Sukh Das, and did so under
circumstances of the greatest publicity. To witness the ceremony of that
adoption large numbers of Bohra Brahmans were invited, and at that
ceremony many of them attended. The fact of the adoption having taken
place was well known amongst the brotherhood and amongst the Bhora
Brahmans of that part of the country. When Baldeo Sahai died, mutation
of names took place in favour of Prem Sukh Das, and in those mutation
proceedings Prem Sukh Das was described as the adopted son of Baldeo
Sahai. He was so described in the mutation proceedings or in the village
papers relating to at least eleven villages. This appears by the documents
numbered 820, 821, 822, 823, 824, 825, 826, 827, 829, 830, and 831.

Tha will was made in 1875. After the making of the will Prem
Sukh Das, suing under the guardianship of Baldeo Sahai, was in his two
petitions of the 5th of Dacember 1877 (documents Nos. 818 and 819)
described as the adopted son of Baldeo Sahai. The will of 1875 affords
evidence of the adoption. Tnere is a passage in it which, correctly trans-
lated, is as follows :

"Prem Sukh, son o! Ohajju Ram, my own sister's son, whom I have
brought up and educated like my son from his childhood, whom L have
made,by performing the usual ceremonies' 4 of investiture with the sacred thread,
do., my heir, representative and successor, and who has from of old lived
with me, shall, after me, be the proprietor and heir of all the properties,
&c."

On the 26th of February 1879 a certificate of guardianship of the estate
of Prem Sakh Das was granted by the Subordinate Judge of Saharanpur
to Kanhai Earn and two others. That Kinhai Earn is one of the plaintiffs-

411



1891

Nov. 28,

-
APPEL-

LATE-

QrviL
-
A- 83 =
H A.W.N.

(1891) 222.



14 All. 62



INDIAN DECISIONS, NEW SERIES



[Yol.



1891 appellants in First Appeal No. 162 of 1889, and in that certificate Prem
Nov. 28 Sukh Das is described as the adopted son of Baldeo Sahai, deceased.

~ It has been pressed upon us that in the suit between Musammat

APPJJL- Sundar and Musammat Parbati the latter lady denied the adoption.
LATE [62] In the suit Musammut Parbati, who was the senior widow, was

OlVIL. attempting to exclude the junior widow Musammut Sundar, from a share
in the property, and with that object in view she was bound in the then
11 A. 33= view of the legal rights of those ladies inter se to deny the adoption.
11 A.W.N. Musammat Parbat in that suit alleged that she alone was in possession.
(1891) 222. Whatever Musammat Parbati's contention was in that suit, she, during
the lifetime of Prem Sukh Das, on the llbh February 1879, joined Mus-
ammat Sundar in a petition (document No. 19} presented to prevent the
property being brought under the Court of Wards, and in that petition
described Prem Sukh Das as the adopted son of Baldeo Sahai. In that
petition the ladies state that they had appointed Lala Sukh Lai, Kanhai
Earn, "the own paternal uncle of Prem Sukh Das," and Eaghunath, sarba-
rahkar and managers, and had applied for the grant of a certificate of guar-
dianship to them. That petition was presented through Tara Ghand, who
was a imukhtar of Musammat Parbati and Musammut Sundar. Tara
Chand's mukhtarnama is dated the llth of February 1879, and is docu-
ment No. 20. It was witnessed by Chain Sukh Bam, who is one of the
plaintiffs-appellants in First Appeal No. 154 of 1889, and who on the llth
of February 1879 described himself as " Chain Sukh, servant of Prem
Sukh Das," as in fact he was.

There are many other documents on the records of these two appeals
to which, if it were necessary, we might rafer in support of our opinion
that Prem Sukh Das had in fact been adopted by and had been openly
treated and acknowledged as the adopted son of Baldeo Sabai. We may
mention that on the death of Prem Sukh Das his funeral obsequies were
performed by one Nathu, who was of the gotra of Baldeo Sahai, and
consequently competent to perform those obsequies. He appears to have
performed them on behalf of Musammat Parbati and Musaaimat Sundar.
If there had been no valid adoption of Prem Sukh Das his obsequies
would have been performed by one of the gotra of Chajju Earn, and Nathu
would have been incompetent to perform them.

On an examination of the oral and documentary evidence we have
no doubt that Prem Sukh Das was, in fact, adopted by Baldeo
[63] Sahai, and that his adoption was by reason of the custom a valid
and legal adoption.

Before concluding our judgment it may be interesting to sea how
this present litigation arose.

In 1871 Baldeo Sahai adopted Pram Sukh Das. In December 1878
Baldeo Sahai died. On the death of Baldeo .Sahai, Prem Sukh Das
succeeded to the property. Prem Sukh Das died on the 3rd of Dacember
1879. He was then 16 years old. Oa the death of Prem Sukh Das,
Musammat Parbati and Musammat Sundar took possession of the property
as his heiresses, a fact which appears not only from other evidence but
also from some bujharat statements of 1290 Fasli, where they are recorded
as " Mothers of Prem Sukh Das." Disputes having subsequently arisen
between them, Musammat Sundar brought her suit against Musammat
Parbati for partition. In that suit Musammat Parbati alleged, that
she alone was in possession, and denied any title in Musammat Sundar.
In first appeal m that suit this Court on the 12th of June held that the
adoption of Prem Sukh Das was, by reason of his being the sister's



YH] KISHAN SAHAI V. ALADAD KHAN 1* AH. 64

son of Baldeo Sahai, invalid, and holding that the Musammats had no title 1891
in law, and that the suit for partition was not maintainable merely by Nov 28.
reason that they were in possession, dismissed Musammat Sundar's suit.
On the 30th of July 1885 Mangal Ram, the grandson of Ishar Das, is APPHL-
alleged to have executed the deed of gift in favour of Chain Sukh Ram and LATE
Ghazi Ram, the plain tiffs -appellants in First Appeal No. 154 of 1889, CIVIL.
upon which they rely. On the 4th of September 1885 those plaintiffs-
appellants brought (Their suit. Mangal Ram was not related to Chain H A. 83*
Sukh Ram or to Ghazi Ram. Chain Sukh Ram had been in the employ- 11 A.W.H.
ment of Pram Sukh Das ; he is married to a sister of Musammat Parbati, (1891) 222,
and is and was an agent of hers. Gazi Ram is the minor brother of
Musammat Parbati. Mansa Ram and Kanhai Ram, the plaintiffs-
appellants in First Appeal No. 162 of 1889 and descendants of Ishar Das
brought their suit on the 18th of January 1886. None of those plaint-
iffs-appellants could have any title to the property if the adoption of
Preoa Sukh Das was a valid adoption. Neither Mansa Ram, Kanhi Ram
[64] nor Mangal Ram appears to have raised any claim to the property or
to have questioned the validity of the adoption until after the decision of
this Court of the 12th of June 1885, although Prem Sukh Das had died
on the 3rd of December 1879. One may infer that the descendants of
Ishar Das and relations of Ghajju Ram, the natural father of Prem Sukh
Das, never thought, until that decision of this Court, that the validity of
the adoption of Prem Sukh Das could be questioned.

We dismiss, with separate sets of costs to Musammat Parbati and
to Musammat Sundar, First Appeal No. 154 of 1889, and affirm the decree
below. We dismiss with separate sets of costs to Musammat Parbati and
to Musammat Sundar, First Appeal No. 162 of 1889 and affirm the
decree below.

Appeal dismissed.



II A. 64 = 11 A.W.N. (1891) 221.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Ghief Justice, and Mr. Justice Tyrrell.



KISHAN SAHAI (Objector) v. ALADAD KHAN AND ANOTHER
(Decree-holders)* [2nd December, 1891.1

Civil Procedure Code, s, 13, Exvl. II Res judioata Execution of decree Principle of
res judicata as applied to execution proceedings.

Where a person on his own application was added as a party respondent to an
appeal, and on the case in appeal being remanded under s. 562 of the Code of



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 62 of 155)