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The Secretary of State for India in Council Represented by the Collector of South Canara Vs. Santaraja Shetty Alias Bojapparasa Binnani - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported in(1913)25MLJ411
AppellantThe Secretary of State for India in Council Represented by the Collector of South Canara
RespondentSantaraja Shetty Alias Bojapparasa Binnani
Cases ReferredHorbal v. Sorabal
Excerpt:
.....its genuineness, the courts have always expressed doubts as to whether it is a reliable document or not. for it must be remembered that exhibit ii was preceded by a will in which the defendant was left a good portion of the properties concerned in this suit and was appointed to be the successor of the deceased as pattam holder. 12. for these reasons, it seems to us that the defendant has succeeded in proving that he is entitled by the law governing the estate of the deceased to continue to be in possession of that estate, and consequently the suit of the secretary of state must fail and the appeal is dismissed with costs......have to decide whether or not it has been established that according to the aliyasantana law and custom, the deceased could have adopted the defendant solely to be his successor after his death. it has been pointed out to us that, in the evidence, seven instances have been either proved or referred to of a male having been adopted solely. two instances are referred to in exhibit h p. 33, lines 19 to 24, four other instances are referred to in exhibit ix p. 129, and a seventh instance is referred to at p. 114, line 15 of the printed documents. these include the instances of the defendant himself). there is much force in the argument of the learned pleader for the respondent that more instances can hardly be expected to be forthcoming, considering the restricted nature of the custom; for.....
Judgment:

1. This is an appeal arising out of the claim of the Secretary of State for India in Council that a decree may be passed ordering the defendant to make over to him the properties mentioned in the Schedules A and B annexed to the plaint and for payments of mesne profits of the immoveable properties mentioned therein from 1900 to the 31st March 1909. The claim was made on the footing that the last owner of these properties, one Chandranna alias Pandyapparasa Binnani (to whom we shall refer hereafter as 'the deceased') died without leaving any heirs and that, according to the law and custom applicable to his estate, the whole of it escheated to the. Government.

2. The learned Subordinate Judge who tried the case came to the conclusion that the defendant had established that the deceased did not die without leaving any heirs, and that the defendant was his heir and was entitled to succeed to his property. The decision of this point depends upon the determination of two questions viz., first, whether or not the defendant had validly been adopted by the deceased into his tarwad and secondly, if not, whether the defendant is entitled to succeed to the deceased as legatee under a document which is Exhibit II on the record.

3. The validity of the adoption of the deceased is attacked by the plaintift, who is the appellant, on the ground, first, that it is against the Aliyasantana law, and custom which have the force of law in the community to which the deceased belonged, to adopt solely a male, i. e., to take into adoption a male without also simultaneously taking a female into adoption, and secondly, that, in any case the defendant could not have been adopted by the deceased because the defendant was the son of the deceased by natural descent, and according, to Aliyasantana law and custom, it is necessary that the person adopted should belong to the same bali as the person adopting, whereas a father and son must necessarily belong to different balis. The learned Advocate-General, who argued the. case on behalf of the appellant, relied, in the first instance, on what had been referred to before us as ' Bhutala Pandya's Aliyasantana Kattukattilagalu' which he said, was a code promulgated by Bhutala Pandya, a former ruler of Canara and which was well recognised as an authoritative source of Aliyasantana Law. On behalf of the respondent it was contended that this so called code is a spurious treatise of a date much more recent than it purports to be and is neither recognised as laying down correctly the Aliyasantana Law as it prevails at the present time nor does it, as a matter of fact, so lay it down. No evidence either oral or documentary, was given in the Lower Court on this point, but the learned Advocate-General relied on the fact that this treatise had frequently been referred to by the Courts, and his argument, in effect, was that, without any proof being given of this treatise being a book of authority, binding on the parties and recognised as such by the community we could take judicial notice of its contents and binding force. It is true that books purporting to contain the laws and customs of any particular community may acquire by being repeatedly proved in the court, such a status as to make it unnecessary in any subsequent case for persons of that community to prove anew the authority or the binding force of the books in question. But it seems to us that unless such a state of circumstances is brought about, books of this nature stand on the same footing as any other evidence tending to prove the existence of a body of customs. Hence to admit this book into evidence without specific proof in the proceedings before us would be to take judicial notice both of its binding force and of all the customs referred to therein. Now custom must be proved in each particular case, and even proof in one or two cases will not dispense with the necessity of its being proved in a subsequent case. See Be Parker Exparte Turguand (1884) 14 Q.B.D. 636 Southwell v. Bowditch (1876) 1 C.P.D 374, Moult v. Halliday(1898) 1 Q.B. 125. But, when we turn to the judgments of this Court in which Buthala Pandia's code has been referred to, we find that during recent years, that is, at least after the criticism of Dr. Burnell questioning its genuineness, the Courts have always expressed doubts as to whether it is a reliable document or not. The learned pleader for the respondent contended ' that the criticisms contained against this document in Koragu v. The Queen I.L.R. (1883) M. 374, Antamma v. Kaveri I.L.R. (1884) M. 575 and Devu v. Deyi I.L.R. (1885) M. 353 are such as to establish that this book is not a book of authority. It seems to us that it is unnecessary for us to express an opinion on the broad 'point whether this book . is authoritative or not. It is enough to say that there is no material before us on which we can hold either that this book has been proved for the purpose of the proceedings between these parties, or that this book has so often been proved before to be genuine and authoritative that we may take judicial notice of its contents and binding force.

4. Since the hearing of this appeal an application was made to us by the Advocate-General that we should admit in evidence a certain cadjan manuscript alleged 'to be dated 1820 and purporting to be a copy of Bhutala Pandya's alleged code; that in the alternative we should use it for taking judicial notice of the Aliyasantana law, or in the further alternative that the question of its authenticity may be determined either by this Court or by an issue sent down for determination by the Lower Court.

5. The learned Advocate-General pressed upon us at the hearing and his learned junior in the course of the special application above referred to, that it is incumbent upon the court to take into consideration the contents of Bhutala Pandya's Code, or at any rate, to come to a definite conclusion upon the question whether the rules contained in Bhutala Pandya's Code are or are not binding upon the estate of the deceased, in as much as it is a duty cast upon the court to take judicial notice of the law by which the parties before it are governed. He relied upon the provisions of Section 57 of the Evidence Act, which states that ' the court shall take judicial notice of the following facts : (1) All laws or rules having the force of law now or heretofore in force or hereafter to be in force in any part of British India.' This argument of the learned Advocate General must, it seems to us, be based on the assumption that Section 57 of the Evidence Act refers also to those customs which have their binding force, so far as the Courts are concerned, by reason of the provisions contained in such Acts as the Madras Civil Courts Act III of 1873. Section 16 of the latter Act provides that 'where in any suit or proceeding, it is necessary for a civil court to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution (b) any custom (if such there be) having the force of law and governing the parties or properties concerned shall form the rule of decision, unless such law or custom has by, legislative enactment, been altered or abolished.' Assuming that the alleged rule of Aliyasantana law on which the appellant relies is a rule having the force of law' (within the terms of the clause of Evidence Act Section 57 above referred to) there is one essential feature in the operation of custom which necessarily differentiates them from the operation of Acts of the Legislature. In regard to Acts of the Legislature, we have to take judicial notice not merely of the rules themselves contained therein, but also of the fact that they have been enacted and that they have the force of law and govern the parties or properties concerned. The Evidence Act Section 57, Clause 4, expressly requires the courts to take judicial notice of ' The course of proceedings of Parliament and of the Councils for the purposes of making laws and Regulations established under the Indian Councils Act or any other law for the time being in force.' Hence in the cases of laws enacted by the Legislature we have to, take judicial notice, not only of the. effect of the rules but also of those facts which are necessary for showing that they have the force of law and that they govern the parties or properties concerned, such facts consisting of the proceedings of Parliament or of the Legislative Council. On the other hand, in the case of customs, the facts showing that they have the force of law and that they govern the parties or properties concerned include the fact that the alleged rules of conduct have been uniformly followed by the parties concerned or by the community to which the parties concerned belong. This fact is not one of which we are required to take judicial notice nor have we any power to take judicial notice of it, unless it has been so often proved in the courts as to make further proof unnecessary as already stated. Reference might in this connection be made to the last clause of Section 57 of the Evidence Act.

6. Without, however, saying that there can be no case in which the court might consider it necessary or desirable to move of its own accord in order to discover the effect and the nature of the customs having the force of law and governing the parties in any proceedings before it, it is enough to say that in the present case it would be futile to embark on any such inquiry. For we have before us direct evidence adduced by both sides in order to prove and to disprove the existence of the custom relied upon by the respondent, and it is not necessary for us to come to any conclusion on the point, whether or not Bhutala Pandya's code was promulgated when it is alleged to have been promulgated, and whether or not it contains the rules of law which were binding on the subjects of Bhutala Pandya when he lived. Assuming that it was so, it does not follow that the customary rules by which the estate of the deceased was bound are the same that presented at the time when the code is alleged to have been promulgated.

7. Hence, it seems to us that the questions of law and custom involved in this case must be determined by a reference to the evidence adduced before the Subordinate Judge, and we have to decide whether or not it has been established that according to the Aliyasantana law and custom, the deceased could have adopted the defendant solely to be his successor after his death. It has been pointed out to us that, in the evidence, seven instances have been either proved or referred to of a male having been adopted solely. Two instances are referred to in Exhibit H p. 33, lines 19 to 24, four other instances are referred to in Exhibit IX p. 129, and a seventh instance is referred to at p. 114, line 15 of the printed documents. These include the instances of the defendant himself). There is much force in the argument of the learned pleader for the respondent that more instances can hardly be expected to be forthcoming, considering the restricted nature of the custom; for an adoption of a sole male can, according to the alleged custom, take place only where a family consists of a single individual. It must be remembered also that the deceased was a person who, for 70 years, had been at the head of his family, and it is not unreasonable to assume that he would know the customs prevailing in his community. He also evidently believed that he had the power of making a valid disposition of his property by a will, (and it was not contended that he had no such power) and yet, he deliberately preferred to revoke his will in favour of the defendant and other descendants and purported to adopt the defendant. This action was, moreover, pointedly brought to the notice of the ' magane' people who, at a meeting, of which notice had been given and at which three'-fourths of them were present, ratified it. or at any rate, took no exception to the 420 THE MADRAS LAW JOURNAL REPORTS [VOL. XXV adoption being made. The ' magane' people it was explained to us consists of all the leading people of the community. Then again, we have the fact that, for 10 years, no objection was taken on behalf of the Government to the defendant putting himself forward as the successor of the deceased on the strength of this adoption and, apparently, he received payments from the Government which would not have been made to him, except on the basis that they recognised his title to succeed to the deceased by virtue of his adoption. With reference to the point that the ' magane' people accepted the adoption of the defendant, the learned Advocate-General referred us to the judgment in O.S. No. 1 of 1903 where the adoption was contested, but that suit was instituted by the members of the Chowter family who claimed that they had the right to nominate a successor and that the adoption was in contravention of their right so to do. There was an appeal in that suit to the High Court, and the judges who decided that appeal expressly refrained from pronouncing on the validity or otherwise of the adoption. Much reliance was placed by the learned Advocate-General on the fact that, in a number of cases, it was proved that a male and female had been adopted conjointly. It seems to us that that fact doss not necessarily affect the force of the evidence adduced on behalf of the respondent for it is admitted by both sides that a male and female may be adopted conjointly, and the only question is whether a male can solely be adopted.

8. There was one other point of attack by the Advocate-General on the proof of the custom in question. He contended that the adoption of the sole male was opposed to the theory of Aliyasantana law, for the object of adoption must be to perpetuate the line and that for this purpose, it is necessary to adopt also a female. Now, it seems to us that, in determining whether the validity of a custom has been proved we ought not to take into consideration the question whether the custom that is alleged would appear to be contrary to what might seem to be the necessary consequence of other rules of custom by which the parties are bound. It was pointed out by Sir Erskine Perry, the Chief Justice of Bombay, in the case of Horbal v. Sorabal (1341) POC 110, S.c. Morley's. Digest Vol. II p. 43 known as the Khoja's and Memon's case that in such cases, it is not for the Court to determine what particular rules of conduct ought to be observed by the community, but rather what as a matter of fact are the customs actually adopted by the community. It may, therefore, be that the learned Advocate-General is right in saying that the establishment sec: of a custom to adopt a male solely may be contrary to the general Sl principles and that might be supposed to underlie the Aliyasantana law and to the theory by which all devolution of property proceeds through the female line. But, still if a custom is actually proved which shows that, as a matter of fact, males may be solely adopted, such a custom will be given effect to, provided that it is valid in other respects.

9. For these reasons, it is unnecessary for us to decide whether there is a conflict between the general principles by which the devolution of property is regulated according to the Aliyasantana law and the custom alleged in this case or whether, as was contended on behalf of the respondent the custom alleged in this case is reconciliable with the general principles of Aliyasantana law. We are also of opinion for reasons similar to those which have been indicated above and which need not be repeated that the adoption of the defendant was not invalid by reason of his not being of the same bali as the deceased, who purported to adopt him.

10. Our concurrence in the view that the learned Subordinate Judge has taken as to the sufficiency of the evidence proving the existence of the custom in question makes it also unnecessary to decide the question whether, apart from the adoption, there was such an election of the defendant by the ' Magane' people as would entitle him to succeed, irrespective of any adoption. This question was not dealt with as distinct from the question of adoption, in the Lower Court, and we think it unnecessary to determine whether assuming that the questions of adoption and election can be considered apart from each other, there has been an election of the defendant, in this case, by the ' Magane, people.

11. The second head of argument on behalf of the respondent was that the deed which has been spoken of as the adoption deed in this case may be construed as a will by which the deceased left all his property to the defendant. Had we not come to the conclusion that the defendant had proved his title to the property of the deceased by adoption. We should have been inclined to hold that, in the circumstances of this case, Exhibit II was a sufficient 'declaration of the intention of the deceased with respect to his property which he desired to be carried into effect after his death' to be given effect to as a will; for it must be remembered that Exhibit II was preceded by a will in which the defendant was left a good portion of the properties concerned in this suit and was appointed to be the successor of the deceased as pattam holder. Again, the *3 wording of Exhibit II seems to us to indicate with sufficient clearness that the main object of the deceased was to nominate the defendant as the successor to the property and dignities of the deceased, and that the adoption was merely a means for enabling the defendant to be such successor- Now, adoption in the case of persons governed by the Aliyasantana law is very different from adoption in the case of persons governed by the Hindu Law. In the former, the main, if not the only object of adoption is to nominate a person to succeed to the property. There is an absence of religious motive which must accompany a valid adoption governed by the Hindu Law. Hence, it seems to us that in the case of persons governed by the Aliyasantana law adoption is but slightly different from the nomination of a successor.

12. For these reasons, it seems to us that the defendant has succeeded in proving that he is entitled by the law governing the estate of the deceased to continue to be in possession of that estate, and consequently the suit of the Secretary of State must fail and the appeal is dismissed with costs.


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