Basil Scott, C.J.
1. Revanshidappa died on the 22nd February 1911 leaving two widows, Basava and Gaurava. Basava was the first married, and on the evidence had attained puberty soon after the marriage of Gaurava to her husband. Gaurava was married by Mohtar marriage, being already a widow, whereas Basava was married by Lagan according to the approved form. The deceased left property worth about Rs. 15,000. The plaintiff claims as a son adapted to the deceased Revanshidappa by his second widow Gaurava on the 6th November 1911. The 1st defendant was adopted by Basava in July 1912. According to the recognized law in this Presidency the senior widow, that is the widow married first, has a preferential right to adopt. In this Presidency she does not require any special authority from her husband or from her husband's Sapindas, but the junior widow, unless the adoption by her is consented to by the elder widow, does require a special authority from her husband. The earliest statement of the law that we can find relating to this Presidency is in Steele on Law and Custom of Hindu Castes, Page 48, where he says: 'If there be two widows, they ought to adopt by mutual consent: otherwise the elder should have the preference in point of right. It is inferred that the younger may adopt by order of the elder, not without it.' The meaning of the word 'elder' in this passage in Steele is not 'elder in years' necessarily, but 'elder in married life' so far as the deceased is concerned. On page 31 the following passage occurs as to precedence among wives. 'Of several wives, being of the Brahman caste, the one first married enjoys the precedence ; if they are of different castes, the Brahmunee is considered the elder. The elder wife sits by her husband at marriages and other religious ceremonies, is head of the family, and entitled to adopt a son on her husband's death without sons.' Yajuavalkya's text (verse No.84 in Achara Adhyaya) and Vijnanesvara's Commentary thereon make it clear that the senior wife is entitled to perform all religious acts in preference to the junior wives. The seniority there referred to is not the seniority of age but seniority in marriage. (See Srisa Chandra Vidyarnava's translation of the Mitakshara, Achara Adhyaya, recently published by the Panini Office at Allahabad, Page 177).
2. The plaintiff's case, therefore, rests upon an alleged special authority given by Revanshidappa to Gaurava. It is said that an hour or two before his death Revanshidappa executed a will in which he gave special authority to Gaurava to adopt. The will is alleged to have been executed under the following circumstances. The younger brother of Revanshidappa died of plague on the 18th February 1911, and on the 20th Revanshidappa himself was attacked. He was then only twenty years of age. Basava, his senior widow, was in the house. Gaurava, the junior widow, was at Gadag from which place she was summoned by wire. Revanshidappa's grandfather's sister's son, who is the 3rd defendant, Shidappa stood to Revanshidappa in loco parentis having been appointed guardian of his property in 1903 or 1904 by order of the District Court in Sholapur. Shidappa was living in Sholapur close to the house of Revanshidappa, and he was with him at the time of his illness and death. Revanshidappa died at 11 A. M. on Wednesday the 22nd. The plaintiff's case is that he was treated for plague by a Hakim Imam Saheb; that he told Shidappa to call his clerk Ramaya in order that a will might be written ; and that between 9 and 11 A. M. on that day a will was dictated by the deceased to Ramaya and was executed by him in the presence of several persons, and was attested inter alios by Shidappa. Two of the other attesting witnesses are said to have been Khan Bahadur Pir Saheb and one Baslingappa. Shidappa entirely denies the story. Gaurava and her father, who is said to have been present, affirm it. The onus of proof is upon the plaintiff.
3. First as to the probability of the story. The attack of plague from which Revanshidappa was suffering was a very violent one. He died within two days of the attack.
4. The Report on the Bubonic Plague published in 1897 remarks that--
The usual course of fatal attack is i to 5 days. Delirium and obscuration of the mental faculties are almost invariably met at some period in this disease, although mild cases are met with which never become delirious or show mental confusion. The character and amount of delirium vary greatly, and present no relation to the severity of the attack. Of 100 consecutive cases mental aberration or delirium was present in 74 at some period. The patient is apathetic, hesitating, stupid, and his mental faculties blunted and confused, whilst he appears irritable and does not like to be disturbed. Delirium appears early, often at the very beginning of the disease, and is most marked at night throughout. Sometimes patients appear wakeful and delirious by night, and stupid, drowsy and comatose by day. If the patient is about to recover delirium ceases.
5. There is evidence that on Tuesday Revanshidappa spoke coherently but afterwards became unconscious and towards night-fall he began to talk, as the Vernacular record shows, (sic) (Ghabrya, Ghabrya) that is either in a frightened manner or in a confused manner. At 9 O'clock on Wednesday he must obviously have been at the point of death. Yet it is stated that he dictated a will, (not a long one it is true) and sat up of his own accord on the bed after it has been dictated and signed it. That appears to us to be extremely unlikely. The senior widow Basava was present all the time and denies that any will was made. The junior widow who adopted the plaintiff says that a will was made containing an authority to adopt in her favour, and she is supported by her father, obviously an interested witness. Of the witnesses who can be called prima facie disinterested there are Pir Saheb and Baslingappa? Now Pir Saheb will not go so far as to say that an authority to adopt was given to Gaurava. He does say that the deceased made a will on the Wednesday morning and that it contained an authority to adopt, but he cannot say in favour of which widow the authority was given.
6. Baslingappa is a witness whose evidence must be regarded with the greatest suspicion. He was the person who identified Gaurava before the Registrar as the executants of the adoption deed executed on the 6th November 1911. He must, therefore, have been particularly well-known to Gaurava, and Gaurava within a very few days of the execution of that deed instituted criminal proceedings against Shidappa charging him with the concealment of Revanshidappa's will, and as is usual she handed to the Court a list of her witnesses in support of her case. That list did not contain the name of Baslingappa. At a later stage, however, she informed the Court that the witnesses she had proposed to call had turned hostile, and she, therefore, proposed to call other persons in support of her case. Among those other persons was Baslingappa. It seems incredible that if Baslingappa had really been present at the time of the execution of a will by Revanshidappa, the execution of which was denied by Shidappa, and in respect of which criminal proceedings were instituted against Shidappa, Baslingappa's name should not have been prominently put forward at the outset of the proceedings as a witness in support of the complainant's case. It became necessary at a late stage that further support for her case should be forthcoming because Pir Saheb proved to be, from the complainant's point of view, a very unsatisfactory witness since he was not prepared to say that there has been any testamentary authority to adopt conferred upon the complainant. Therefore a fresh support was introduced, and this fresh support was Baslingappa. He is a witness who is prepared to go as far as the plaintiff requires, for not only does he testify to the making of the will and the conferring of authority to adopt upon Gaurava, but he alone of all the witnesses supports Gaurava in the assertion that for several months before her adoption of the plaintiff Shidappa was pressing her to adopt his nephew. That is a story which, it may be said incidentally, it is very difficult to accept, for this reason that the nephew was the only son of Shidappa's brother and would presumably inherit both to Shidappa and his father, and it is not disputed that Shidappa was a man in well-to-do circumstances of life doing business as a trader in Sholapur. People are not ordinarily disposed to give only sons in adoption, and there does not seem to have been in this case the inducement of any considerable property which would induce these two well-to-do brothers to consent to the transfer of the only male descendant into another family.
7. The evidence of Pir Saheb is open to considerable suspicion. The learned Judge who heard him in the trial Court speaks of him as a very half-hearted, lukewarm and unwilling witness showing proclivities in favour of the defense. The defendant 3 Shidappa denies that Pir Saheb was present at all, and if we come to probabilities there does not seem any reason why Pir Saheb should have consented to go into the room of a Lingayat who was dying of a virulent attack of plague in order to be able to give evidence as to the execution of a will. The improbability is emphasized when we notice that Pir Saheb himself observes that he did not stay until the end of the proceedings in connection with the execution of the will because he was anxious to get away. It is clear that we do not know the whole truth about Pir Saheb and why he gave the evidence ho did. He does not, however, in any way, help the plaintiff's case, for we cannot say that he supports the story of an authority conferred upon Gaurava.
8. Another difficulty in the proof attempted by the plaintiff arises in connection with the Imam Saheb or Hakim who is said to have attended Revanshidappa. He is not called and no evidence has been given to show that he could not have been called.
9. Ramaya the alleged writer of the will is dead. But it is to be observed that his death occurred a month or two before Gaurava determined to institute criminal proceedings against Shidappa charging him with concealment of the will.
10. Much reliance has been placed on behalf of the plaintiff upon a post-card dated the 29th April 1911 addressed by Shidappa to Gaurava's, father at Gadag, because it contains a reference to taking a boy in adoption. But when the post-card is read as a whole the reference is of a very equivocal character, and by no means goes to support the plaintiff's case rather than that of the defendant. The reason of writing the post-card was that Gaurava's father had written to Bay that he was coming alone from Gadag. Shidappa said : 'Do not come alone, all the people round our house are come back and are living in peace. Among them our house only is still vacant and people are much grieved to see it, and as the time of taking a boy in adoption is drawing near the Panchas and the Nazir are very much pressing. You should therefore bring with you Gaurava without fail.' Now Guarava was nineteen years of age. Basava who was living with her parents at Valsang, both of them having left Sholapur on account of plague, was only thirteen or fourteen and she could not return alone to open her husband's house. If, however, Gaurava returned there would be no difficulty in Basava returning also, and we find that Gaurava did return in May, probably in consequence of the post-card, with her father, and a short time afterwards Basawa came also from- Valsang. The reference to the adoption appears to be thrown in merely as an extra inducement to Gaurava's father to fill up the house. The Panchas referred to are probably the Panch of the Lingayat community, and the reference to the Nazir is no doubt to the Nazir of the Sholapur District Court who was charged with the care of minors' estates, Shidappa himself being the actual guardian appointed by the Court of the property of the deceased Revanshidappa. It is natural enough that both the Panch and the Nazir should ask Shidappa whether a boy was not going to be adopted, and that is, as it seems to us, a natural and sufficient explanation of the passage in the post-card with reference to adoption.
11. The next document of importance in the case is a notice published by Shidappa in a Sholapur newspaper at the time when he was leaving for Bijapur on a few days' visit. In that notice which is addressed to Gaurava he states that he has heard that she is about to make an adoption and warns her not to do it as she is not authorized. On the very next day an answer appeared in the Sholapur paper, obviously the work of some lawyer, in which Gaurava asserted the case which is now put forward on behalf of the plaintiff, namely, of the execution of a will and charging Shidappa with its possession. Shidappa on his return from Bijapur in two or three days went off at once to Gulburga where was living the boy who is now the 1st defendant, and who was adopted in July 1912 by Basava. On his return he was arrested on the criminal charge, and the proceedings under that charge dragged on for several months. The Magistrate eventually discharged the accused, and an application in revision to the Sessions Judge was dismissed.
12. Thereafter this suit was instituted. The learned Judge in the trial Court has come to the conclusion that the plaintiff has established his case. It does not appear to us, however, that he has kept before him the point of crucial importance that the onus is on the plaintiff, and that if the plaintiff does not prove clearly and conclusively a special authority to adopt conferred upon Gaurava, he has no title to the property in suit. The learned Judge recognizes that Pir Saheb is an unsatisfactory witness, but he does not appear to recognize that Pir Saheb has never gone so far to say that there was any authority given to Gaurava to the exclusion of Basava and although he recognizes the difficulty of accepting Baslingappa's evidence in consequence of the manner in which he was brought forward as a witness at a late stage in the criminal proceedings, he appears to give fullest credence to his evidence.
13. We are also unable to agree with the learned Judge as to the construction to be put upon the post-card, Exh. 95, which, as already pointed out, has by no means any conclusive weight in favour of the plaintiff: Upon the evidence we are unable to accept the finding of the learned Judge. We cannot hold that the plaintiff has discharged the onus which is upon him, and has made out a case which would have the effect of disinheriting Basava or any son whom she might adopt.
14. This brings me to the finding of the learned Judge upon the question whether the first defendant has been validly adopted in law. He holds that he has not been validly adopted on the ground that Basava at her age was incapable of selecting the 1st defendant, and that he had not been selected by Revanshidappa himself. The law upon this point is stated by Mr. Justice Banerjee in Mondakini Dasi v. Adinath Dey (I.L.R.1890) Cal. 69. He observes :
The Indian Majority Act (IX of 1875) provides that nothing contained in that Act shall affect the capacity of a person to act in matters relating to adoption. It has been decided by this Court in the case of Rajendro Narain Lahoree v. Saroda Soonduree Dabee (1871) 15 W.B. 548 that a minor who has arrived at the age of discretion is competent to give permission to adopt, and this decision has been approved by the Privy Council in Jumoona Dassya v. Bamasundari Dassya (18I.L.R.76) Cal. 289,. What is meant by the age of discretion in these cases is not clearly stated, nor is there anything to show that at the date of the adoption in question Biraj Mohini had not attained sufficient maturity of understanding to comprehend the nature of the act. It should also be borne in mind that in this case the authority to adopt was given by a person of full age, and the validity of the adoption is questioned on the ground that the person who exercised that authority was a minor. Upon this point there is a case given in Macnaghten's Precedents of Hindu Law (Chapter VI, case V) in which the Pandit's opinion was to the effect that the nonage of the widow is no obstacle to an adoption by her.
15. Similarly in the present case there is nothing to show that at the date of the adoption in July 1912 Basava had not attained sufficient maturity of understanding to comprehend the nature of the act. In fact she was about fifteen years of age, and there is no reason to presume that a Hindu girl of that age who has been married for two years or more, living with her husband, does not realise what is meant by taking a son in adoption. We, therefore, cannot accept the finding of the learned Judge as to the adoption of the defendant No. 1. The result is that the decree must be reversed and the plaintiff's suit dismissed with costs throughout.
16. I concur.