Judgement

Appeal (No. 32 of 1932) by special leave from a decree of the High Court (January 29, 1930) affirming a decree of the Subordinate Judge of Cuttack (November 30, 1925).

The suit was instituted by Banamalai, since deceased and represented by the respondents, claiming by inheritance an impartible zamindari in Orissa upon the death of Raja Bibhudendra, who died in December, 1922, unmarried and at the age of twenty years and six months. The plaintiff alleged that according to the custom of the family females were excluded from inheritance, and that an adoption of the first appellant, Amarendra, made a week after the death of Raja Bibhudendra by the second appellant, Rani Indumati, his mother, was invalid. It was not disputed in the appeal that if the custom alleged was established, and if the adoption was invalid, the plaintiff was entitled to inherit the property as the nearest sapinda. The parties were governed by the Benares school of the Mitakshara law. The zamindari was claimed on the basis that it was separate property, and it was treated throughout as being so.

The facts appear more fully from the judgment of the Judicial Committee.

Both Courts in India found that the custom alleged was established and that the adoption was invalid. The adoption was held to be invalid mainly on the ground that Rani Indumati could not exercise her power to adopt so as to divest the estate vested in the plaintiff. The judgments delivered in the High Court by Jwala Prasad and Scroope JJ. appear from a report at I. L. R. 10 P. 1.

1933. Jan. 31 ; Feb. 2, 3, (i, 7, 9, 10. Sir Dawson Miller K.C. and Jinnah for the appellants.

De Gruyther K.C. and Wallach for the respondent No. 1 (the eldest son of Banamalai, deceased).

The contentions of the parties, and the principal authorities relied on, appear from the judgment of their Lordships. In addition to cases there mentioned reference was made to Shamchunder v. Narayi Dibeh ((1807) 1 Sel. Rep. 279.) ; Ram Soondur Singh v. Surbanee Dossee (( 1874) 22 Suth. W. R. 121.) ; and Faizuddin Ali Khan v. Tincowri Saha. (( 1895) I. L. R. 22 C. 565.) With regard to Pratapsing Shillings case (( 1919) L. R. 46 I. A. 97.) the respondent contended that the decision was based upon the view that under the jivai grant an adopted son was a son, and that consequently the reverter was not absolute but provisional upon no adoption being made.

April 4. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. This appeal raises an important k question with regard to the validity of an adoption by a Hindu widow.

The facts upon which the decision turns may be stated quite shortly. The issue involved is as to the right of succession (using the word in its widest significance) to the Dompara Raj, an impartible zamindari in Orissa. The early history of the raj is dealt with at length in the judgments below, and it is unnecessary to refer to it for the purposes of this appeal. The parties are kshatriyas by caste, and are governed, apart from special family custom, by the Benares school of the Mitakshara law. The following pedigree will show the relationship of the persons to whom reference will have to be made, the successive holders of the estate being denominated by the title of Raja —

Krishna Chandra

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Raja Kishori Madan Singh

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Raja Raghunath Clientarmoni

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Raja Brajendra = Rani Indumati |

| Banamalai

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Raja Bibhudendra Amarendra (adopted)

On July 20, 1898, Raja Brajendra, being then without issue, executed a deed of which the following are the important clauses " 1. God forbid if I die without leaving any issue or if the son born of my loins or my adopted son die without leaving a son after my death, then my Rani Srimati Indumati Patmahadei shall be competent to adopt a son in accordance with rules laid down below..... 4. God forbid if the sons adopted by the said Rani die, then the said Rani shall be competent to adopt sons one after the other from the Raj family of the same caste (as ours) in