Judgement

Appeal (No. 48 of 1927) from a decree of the Chief Court of Oudh (March 22, 1926) affirming a decree of that Court in its original jurisdiction.

The appellants instituted a suit claiming to succeed to an Oudh taluqdari estate, in lists 1, 3 and 5 under Act I. of 1869, upon the death of the taluqdar in 1923 intestate and without sons. The deceased taluqdar was survived by a widow, the first defendant-respondent, who was in possession. The parties were Hindus governed by the Mitakshara. The deceased taluqdar had been adopted, according to Hindu law, by the preceding taluqdar, and had succeeded to the taluqa as an adopted son.

The appellants suit was based upon the contention that a natural brother of an adopted Hindu is a " brother" within the meaning of cl. 5 of the Oudh Estates Act, 1869, s. 22, as enacted by s. 14 of U. P. Act III. of 1910, and was consequently entitled to the estate in preference to the widow.

The facts appear from the judgment of the Judicial Committee.

The trial judge (Ashworth J.) rejected the above contention, and dismissed the suit. An appeal was dismissed by Stuart C.J. and Wazir Hasan J. The appeal is reported at I. L. R. 1 Luck. 233.

1927. Nov. 17, 18, 21. Sir George Lowndes K.C. and Dube for the appellants. The present question arose in Sheo Singh v. Raghubans Kunwar (( 1905) L.R. 321. A. 243.), but was not decided. The word “brother " in cl. 5 should be given its natural meaning. The section was designed to apply to Hindus, Mahomedans, Sikhs and Christians, and should be so construed Pertab Narain Singh v. Subhao Kooer. (( 1877) L.R.41.A.228,234.) A meaning should be given to " brother" which is applicable in each case. The intention was that, for purposes of succession, the personal law should be displaced by the provisions of the section. The section contains striking divergencies from Hindu law. For instance, under the amended provisions, the adopted son of a Hindu does not take as a " son " but as an " adopted son." In any case the word " brother " connotes a blood relationship. Though in Hindu law an adoption excludes from inheritance in the natural family, it does not obliterate the tie of blood Dattaka Mimansa, sect. 6, para. 10 ; Maynes Hindu Law, 7th ed., para. 164.

[Reference was made also to Abul Kasim Khan v. Hari Singh. (( 1870) Oudh Select Rulings ( 1859- 1893), No. 171.)]

De Gruyther K.C., Hyam and Motilal Nehru for the first respondent. In construing the section account must be taken of personal law save where it is excluded, expressly or by implication. Many of the relationships which are mentioned in the section depend necessarily upon the personal law of the parties. In the case of " brothers" there is nothing to exclude the Hindu law of adoption. That law is recognized in cl. 29. If a natural brother of a Hindu is a " brother " within cl. 5, he would take in preference to a son adopted by the widow, since the latter comes in only by cl. 7. That cannot have been the intention of the Act. Under Hindu law adoption does not create merely a disability from inheriting in the natural family, it effects a complete transference into the family of adoption, subject to the tie of blood being left so far as it prevents marriage Nagindas Bhugwandas v. Bachoo Hurkissondass (L. R. 431. A. 56.); Dattatraya Sakharan v. Govind Sambhaji (I. L. R. 40 B. 429,435.); Pratapsingh Shivsingh v. Agarsingji Raisingji (( 1918)L.R.46I.A.97.); Maynes Hindu Law, 9th, ed., para. 172. There is nothing in the Act which excludes ceremonial adoption among Hindus; though it affects the mode of proof of an adoption for the purposes of the Act.

Sir George Lowndes K.C. in reply. Much of para. 172 of the 9th edition of Mayne, including the passage beginning " Indeed, the fiction goes the length . . . .” has been added since the last edition by Mayne, and is not authoritative.

1928. Feb. 2. The judgment of their Lordships was delivered by VISCOUNT SUMNER. This appeal relates to the rules of succession laid down