TMI Blog1915 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... Secondly, that the religious ceremony of datta homam, namely, the sacrificial burning of the clarified butter in accordance with the practice of the Hindu religion, was an essential requisite, and was not performed, and that on this ground also the adoption remained inchoate. 4. These grounds of challenge affect the completion and formalities of the ceremony itself. The third ground, however is one of general law. There are difficulties on the pleadings and arguments in placing it within any definite category, and to this allusion will afterwards be made. But it may at least be said that almost every known ground of challenge is imported into the case by suggestion. Allegations amounting to or compounded of fraud, circumvention, coercion, and undue influence are all mixed together. The disentangling of these separate and separable grounds of action must undoubtedly have caused certain difficulties in the Court below. But the challenge appeared to their Lordships to preserve even at the bar of the Board this mixed or jumbled character. 5. The facts of the case, briefly stated, are these: The late Baba Maharaj was a first-class Sardar of the Deccan. He died at Poona on 7th Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deference was paid to the wishes of the widow, and that objection is made to certain suggested adoptees on the ground of their being too old. One boy, the youngest named, of eleven years, being, however, stated to be in point of age suitable, although delicate. The minute then proceeds:- The only family which remains, therefore, is that descended from the brother of Shri Siddeshwar Maharaj at Babre. It is not yet known whether there is a boy or not in that family. But if there is a boy of that family, fit in point of age, c., for adoption, it is our unanimous opinion that one should not be taken from any other family. And Shri Tai Maharaj is of the same opinion. Shri Tai Maharaj suggests that Messrs. Bal Gangadhar Tilak and Ganesh Shrikrishna Khaparde should both go to Babre, select boys, and return after settling as regards that family. Shri Tai Maharaj should go, see boys, and approve. 10. It should be mentioned that the trustees were, and had been since the testator's death, duly administering the testator's estate. 11. What followed upon the proceedings of the 18th June was that Messrs. Tilak and Khaparde accompanied the widow to Aurangabad, where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential in this caste of Hindus on occasion of adoption and-all being completed-the formal ceremonies and festivities were postponed, to take place afterwards at Poona, and the widow left Aurangabad. 14. The Subordinate Judge of Poona has gone into the circum stances with the utmost minuteness and detail, and he has weighed and considered every argument presented, and he comes to the conclusion that the adoption was in fact completed. Notwithstanding the judgment of the learned Judges of the High Court of Bombay, their Lordships have no hesitation whatever in entirely agreeing with the Judge of first instance. Reference in a little time will be made to the reasons assigned by the High Court for differing from him. But in the meantime it may be said that it appears to their Lordships that, viewed as a matter of evidence, no other conclusion was possible than that come to by the Subordinate Judge. 15. Their Lordships do not stop to examine the oral testimony in detail. It is really all one way. Upon the crucial question of whether the boy was received by being taken on the lap of the adoptive mother there can be no doubt. Witness after witness speaks of it. It would be very stra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no evidence to prove that any effort or cajolery was practised upon her, or that there was any suppression or concealment of facts from her; the plaintiffs had no personal interest whatever. 19. In another passage of his judgment he remarks :- The evidence clearly shows, and it is undisputed, that on the 27th there was selection and verbal gift, and acceptance, and preparation of necessary documents. On the 28th there was execution of documents under corporea acts of giving and taking. 20. In their Lordships' view these conclusions are well justified. 21. It is an admitted fact in the case that neither the trustees nor any of the witnesses for the plaintiffs had any interest whatsoever in the subject-matter of the suit, and that no motive can be reasonably suggested for them maintaining or testifying that the adoption of the boy mentioned was made, except that this represented the actual truth which occurred. 22. It is in these circumstances that their Lordships have viewed with surprise the charge which is made not only against the trustees, but against the whole body of the plaintiffs' witnesses, ten or twelve persons in all. The account unquest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest being to maintain that the provisions of the testator's will with regard to adoption had failed, that the widow became the owner of the estate as heiress to her infant son who died, and that the property passes in this way to her heir. 27. It appears that the widow and Bala Maharaj left no stone unturned in the way of litigation. In July proceedings were begun to revoke the probate granted to the trustees, and subsequently criminal proceedings were instituted in respect of perjury. Their Lordships regret to observe that not only are the circumstances with regard to the criminal proceedings referred to in the present litigation by the parties, but that the depositions therein became matter apparently of materiality in the judgment of the learned Judges of the High Court. 28. In the opinion of the Board this was an irregularity of a somewhat serious character. They refer particularly to the depositions in the criminal case, which seem to have been imported in bulk into the present. There is a risk by such procedure of justice being perverted. A civil cause must be conducted in the ordinary and regular way, and judged of by the evidence led therein. Under Section 33 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary, and intelligible rule, and where a witness's reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear. 31. Fortunately the law of India pronounces no uncertain sound upon the same matter. By Section 145 of the Indian Evidence Act, 1872, it is provided that- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to the matters in question without such writing being shown to him or being proved; but if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. 32. Their Lordships have observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed. The verdict of the High Court is an inferential verdict-none the less sweeping on that account-but an inferential verdict actually of perjury. What are the premises upon which this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emony was not performed, and it seems to be fairly clear that it was one of those things which it was intended afterwards to carry out at Poona as part of the general ceremonial and festivities which were to be carried through there. 39. In certain circumstances the point might be the subject of a prolonged and very conflicting argument, as the authorities, ancient and modern, are not in accord on the point as to whether this is a legal as well as a religious requisite. There is a danger, on the one hand, of not paying due respect to those religious rites which are observed and followed among large classes of Indian belief, while, on the other hand, the danger must also be avoided of carrying these-except when the law is clear-into the legal sphere, so as to affect or impair personal or patrimonial rights. The subject of the requisites for adoption has, in recent years, been the matter of not infrequent consideration by this Board, and their Lordships refer, in especial, to the elaborate examinations of the authorities made by Lord Hobhouse in Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (1889) L.R. 26 I.A. 113, 126; 1 Bom, L.R. 226 and by Mr. Ameer Ali in Ramchandra M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gotra as that of the adoptive father. It is an admitted fact that this was so in the present case. And their Lordships have come clearly to the conclusion that where this is so in fact then the law of India is that the celebration of the ceremony of datta homam is not an essential to the legal validity of an adoption It is conceded in argument that certain exceptions to the alleged general rule do exist, but it is maintained that these exceptions are limited to the case of the adoption of a nephew or of a daughter's son. In decided cases this may have been the relationship in fact, but the principle of all the decisions, and in their Lordships' opinion, of all the authorities is that within the same gotra the ceremony is unnecessary. They agree with what, in their opinion, is the full and careful judgment of Chief Justice Jenkins, in the case of Valubai Govind Kashinath (1889) I.L.R. 24 Bom, 218 the decision being to the effect that among Brahmins in the Presidency of Bombay, the performance of the datta homam ceremony is not essential to the validity of the adoption of a brother's son. An examination of the judgment shows that it was not based upon the narrow particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety (1880) L.R. 5 A.C. 685, at p. 697 that- With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. The law of India is in no way different from this, and it has been decided over and over again, e.g., in Gunga Narain Gupta v. Tiluckram Chowdhry (1888) L.R. 15 I.A. 119. 49. It is, in their Lordships' opinion, much to be regretted that the rule is not more strictly observed, and their Lordships are of opinion that in the present case much confusion and contention have been caused, together with much expense to the parties, in consequence of its neglect. No definite issue upon any one of the well-known categories of attack was settled for trial, the only issue on the subject being - whether the plaintiff No. 4 is a validly-adopted son of Bala Maharaj ? From time to time, in the course of this case, it is clear that specific pleadings in Indian procedure have been abandoned altogether. In short, several of the careful prescriptions of the law and of the Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing the protracted argument before their Lordships, even now somewhat difficult to gather what are the legal categories under which the attack upon this transaction is made. Unconscientious means are mentioned and unfair advantage is mentioned. It is needless to ask whether this implies fraud because their Lordships are of opinion that no sort of unconscientious means was employed by these trustees from beginning to end of the transaction, and that no unfair advantage was either taken or meant throughout their whole course. It is true that the adoptive mother was a young widow, probably easily guided, and that the trustees are admitted to have been men of great influence and strong personality, but their Lordships are of opinion that these were used in no respect unduly, but with propriety and entirely in the interests of the proper administration of the estate. Their Lordships cannot approve of the idea that in India the law would make the possession of reputation or high standing an element of suspicion. If it were so, then the result in India would be to import pro tanto a disqualification and disability into the position of reputable men. 53. A reference is made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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