1. Defendants 2, 4 and 6 are the appellants and the facts which led up to this appeal are as follows:
The parties to the suit who belong to the Lingayat community are members of the Punganur Zemindar's family. Punganur was permanently settled in 1861. It is an impartible estate governed by the law of primogeniture.
2. On the 22nd of December, 1896, the then Zemindar, Raja Immadi Sankara Royal Yasavanta Bahadur, executed a will marked as Exhibit Y in the case. It recites that he transferred the estate to his eldest son Raja Immadi Veera Basava Chikka Royal Varu, and that he the eldest son should be the head of the Samasthanam and after him his eldest son and so on in succession. After giving certain directions and after giving certain legacies, he gave monthly allowances to his second and third sons.
[After referring to the terms of the will and subsequent legal proceedings their Lordships proceeded as follows:]
3. The upshot of these proceedings was that the plaintiff and his, descendants were to get Rs. 100 a month as Thevvajji or allowance as provided for in the will of his father and that in lieu of the lands referred to in the will and the decree of the District Judge giving him lands of the value of Rs. 35,950 he was to get a sum of Rs. 125 a month.
4. The decree of the High Court was in 1906. About September, 1907, the 1st plaintiff and his mother went to North Canara and were staying in the house of one Subhadrammayi, who was a relation of the 1st plaintiff's mother and, according to the appellants, the 1st plaintiff was taken in adoption by that lady and a regular deed of adoption (Exhibit 17) was executed and registered, the 1st plaintiff himself presenting it for registration. Exhibit 17 is a registration copy of the deed of adoption. It is executed by Subhadrammayi, who was, the widow of one Basavalinga Raja of Biligi, Siddapur Taluk, in favour of the 1st plaintiff, who is the 1st respondent before us. It recites that the 1st respondent was taken in adoption. This document was executed in North Canara, and it is not disputed that the properties which are referred to in this document as having passed to the adopted son are situate in North Canara. Though the factum of the adoption seems to have been disputed in the Lower Court, the Judge finds that the adoption was made in fact. We shall assume without deciding the point that the adoption was as a matter of fact made. Its validity, however, is disputed on the ground that the 1st respondent the adopted son was then a married man and that consequently the adoption is invalid. And in' fact the whole of this appeal practically turns on the invalidity of the adoption owing to the adopted son being a married man at the time of adoption.
5. Though the 1st plaintiff was taken in adoption by the deed, dated the 19th of September, 1907, the parties seem to have changed their minds probably because the Biligi Samasthanam did not turn out to be as valuable as it was supposed to be.
6. In 1908 the 1st plaintiff and his mother again went to Biligi, and a release deed Exhibit CC, dated the 28th of November, 1908, was executed by the 1st plaintiff the adopted son in favour of the adoptive mother. The deed states that when the 1st plaintiff and his mother went to see the waterfall during the Bhadrapada month of the Plavanga year, the adoptive mother learning of the arrival of the son (1st plaintiff) and the mother sent for them and on account of the old relationship and on account of 'emotion' executed a document on 13th Bhadrapada, Suddha corresponding to 19th September, 1907 and had it registered and that the 1st plaintiff and his mother went away to their native place Punganur. It states that nothing took place according to the usage and law as stated in the document, that the adoptive mother herself has been managing the properties and that the climate of Biligi does not suit the 1st plaintiff. It winds up by saying 'we with your consent have hereby relinquished to you our ownership, etc., rights passed to us under the aforesaid document.' Then the property is described.
7. In 1912, i.e., about 5 years after the adoption and 4 years after the relinquishment, the 1st plaintiff filed a suit (O.S. No. 46 of 1912) for arrears of maintenance. The plaint in that suit is marked as Ex. C. It sets out the rajinama already referred to giving him Rs. 100 a month for allowance and Rs. 125 a month in respect of the lands relinquished and claimed Rs. 6,695-13-4 after giving credit for the amounts the 1st plaintiff had received. In the meantime the Zemindar of Punganur who was a party to the agreement died and his son was brought in as the defendant. He filed a written statement stating that the agreement made by his father was not binding on him and setting up various other defences. His defence was, not accepted and a decree for the arrears of maintenance was passed. In that suit there was no defence raised that the plaintiff having been adopted into another family ceased to be entitled to any maintenance even if the agreement of compromise giving him the rights claimed was valid and binding on the defendant. There was an appeal (No. 325 of 1913) against this decree, but it was dismissed by the High Court. The decree was executed and the, plaintiff got his money.
8. Suit No. 14 of 1919 out of which the present appeal (No. 354 of 1926) arises was filed on the 1st of March, 1919, by the 1st plaintiff to whom under the rajinama Rs. 100 a month for allowance and Rs. 125 in respect of lands was agreed to be paid and by the widow of the late Zemindar who claimed Rs. 40 a month payable to her. The amount claimed was for the period subsequent to the period covered by the previous suit for the recovery of arrears; of maintenance which was decreed. There were various defences raised, but the main defence with which we are concerned in this appeal is that the plaintiff having been adopted by the Rani of Biligi is not entitled to claim anything from the Zemindar either under the deed of Rajinama arrangement or otherwise. To this the answer was that there Vas no adoption as a matter of fact and secondly, the adoption even if it was true is invalid in law because the 1st plaintiff was at the date of the adoption a married man about 23 years of age.
9. The suit was originally laid against the 1st defendant only, the Zemindar, but pending the suit he died and defendants 2 to 6 were brought on record as his legal representatives and they adopted the written statement of the 1st defendant. A plea was raised by the 4th defendant that the maintenance should be reduced to Rs. 70 and Rs. 75 as the income of the estate had considerably fallen.
10. The Subordinate Judge decreed the plaintiff's suit. As regards the factum of adoption he held that the adoption was in fact made. He was of opinion that evidence oral and documentary in support of the factum of adoption amply supported the factum of adoption. As in our view the adoption even if trues invalid it is unnecessary to give a finding on this point.
11. As regards the validity of the adoption, two questions arise, namely (1) whether the plaintiff was married at the time of the adoption, and (2) whether the adoption of a married man among Lingayats is valid.
12. It is admitted that the 1st plaintiff was a married man at the time of the adoption. The parties are Lingayats and the question is whether the adoption of a married man by a Lingayat is valid.
13. The Subordinate Judge held that as the adoptive mother belongs to North Canara which was part of the Madras Presidency before it was transferred to the Bombay Presidency in 1861, the law applicable to the parties is the law as applied in the Madras Presidency, that as the adoption of a married man has-, been held to be invalid, the 1st plaintiff's adoption was invalid and inoperative and that he, therefore, remained a member of his natural family and was entitled to the rights conferred on him by the Rajinama.
14. North Canara originally formed part of the dominion of Hyder Ali and his son Tippu, who were the Rulers of Mysore, and in 1799, on the fall of Tippu Sultan, North Canara and other territories were ceded to the East India Company and formed part of the Madras Presidency till 1861, when for administrative purposes the administration of that district was transferred to the Bombay Presidency.
15. So far as the Presidency of Madras is concerned the law has always been that the adoption of a married man is invalid. The latest decision of this Court is Lingayya Chatty v. Chengalammal : AIR1925Mad272 .
16. Except in the Bombay Presidency where the Mayukha prevails, it has been held by the Courts in all the provinces in India that the adoption of a married man even though he happens to be a Sudra is invalid. The decisions are referred to in Lingayya Chetty v. Chengalammal. It is, argued for the appellants that the decisions to the effect that in the case of Sudras the adoption of a married man is invalid are wrong. We see no reason to differ from the current of authority which so far as we can see is uniform and is also supported by the Smriti Chandrika and other texts.
17. So far as the Bombay Presidency is concerned, in places where the Mayukha is followed as the paramount authority, it has been held that the adoption of a married man is valid. We may refer to Kalgavda Tavanappa v. Somappa Tamangavda I.L.R.(1909) B. 669. 3. I.L.R.(1924) B. 520 and Manikbai v. Gokuldas (1870) 13 W.R. 47. This is not by reason of any custom in derogation of the law but by reason of the express text of the Mayukha to the effect that a married man may be adopted.
18. It is argued for the appellants that as North Canara has been incorporated in the Bombay Presidency from 1861, the law as administered in the Bombay Presidency should be the law to be administered to Lingayats in the Bombay Presidency where the adoption of married men has been held to be valid. An alternative ground has been taken that among the Lingayats, wherever they are, whether in the Madras Presidency or the Bombay Presidency, the adoption of a married man is valid by custom, that evidence of such a custom has been adduced in this case and that the Judge was wrong in holding that the custom has not been proved.
19. When the North Canara District formed part of the Madras Presidency, the law as administered by the Madras High Court was that the adoption of married men was invalid; and it would have been necessary for a person there who sets up a custom to the contrary to prove it. The transfer of North Canara to the Bombay Presidency for administrative purposes would not by itself change the personal law of persons residing in the North Canara District. Whether it is a case of an individual migrating from one province to another or a case of territory where he resides being transferred from one province to another, the presumption until the contrary is shown is that he carries his personal law with him, and it is difficult to see how the Mayukha can be said to apply to the North Canara District, simply because it was transferred to the Bombay Presidency. We may in this connection refer to Huro Pershad Roy v. Skibo Shunkuree Chowdhradn4 and Balwant Rao v. Baji Rao (1920) L.R 47 IndAp 213 : I.L.R. 48 C. 30 : 1920 39 M.L.J. 166 (P.C.).
20. Turning to the custom set up, the custom alleged is a custom among the Lingayat community to which the parties belong, permitting the adoption of married men. It is a general custom alleged that Lingayats, wherever they are, are permitted to make adoptions of married men.
21. Before dealing with this question it is necessary to refer shortly to the Lingayat community. The Lingayats who were originally Hindus are a body of dissenters and the founder of their religion was one Basava who was born about 1100 A.D. Their religion is correctly summarised by Thurston in his Castes and Tribes of Southern India, Vol. IV, at page 236 as follows:
Their religion is a simple one. They acknowledge only one God, Siva, and reject the other two persons of the Hindu Triad. They reverence the Vedas, but disregard the later commentaries on which the Brahmins rely. Their faith purports to be the primitive Hindu faith, cleared of all priestly mysticism. They deny the supremacy of Brahmins, and pretend to be free from caste distinctions, though at the present day caste is in fact observed amongst them. They declare that there is no need for sacrifices, penances, pilgrimages or fasts. The cardinal principle of the faith is an unquestioning belief in the efficacy of the Lingam, the Image which has always been regarded as symbolical of the God Siva.
22. Mysore, the Southern Mahratta country and the Bellary District contain most of these Lingayats. Though the sacred thread is not worn by the Lingayats, a ceremony called Deeksha ought to be performed about their 8th year, but as in the case of Upanayanam it is often performed much later. The sacred mantra is whispered in the ear by their Guru and this ceremony corresponds to Upanayanam among the Brahmins. We may also refer to Virasangappa v. Rudrappa I.L.R.(1885) M. 440 where some of the Lingayat tenets are set out.
23. It is conceded in this case that so far as their religious duties, are concerned, the Lingayats have got Agamas or sacred books which are of primary authority. One of such books is Vathulagama which has been filed as Exhibit Q in this case. It deals with adoption. These Agamas are dialogues between Siva their chief God and his consort Parvathi. As, regards adoption this is what it states:
The wise should take a boy possessing all the limbs, clean, endowed with beauty, born of the same gotra, having a liking to good conduct, aged five years excluding the eldest, of good conduct, highly intelligent, of sweet speech, tender hearted.
24. So far as the age limit is concerned, this age corresponds with the age given in Dattaka Chandrika. As regards the ceremonies of adoption which appear after this passage, homam is performed with Vedic mantras. As regards the age of five years, custom has relaxed that rule and the evidence of the plaintiffs' witnesses in this case is that adoption can be made before the Deeksha ceremony is performed. The question, however, is whether custom has relaxed the rule that an adoption cannot be made after a person is married.
25. In the case of Jains it is undoubted law that in the absence of any custom to the contrary which has to be set up and proved, they are subject to the rules of Hindu Law. We may refer to Gettappa v. Eramma : (1926)51MLJ757 where the authorities are collected. The Jains do not worship Siva nor do they recognise the authority of the Vedas. But in the case of Lingayats whose only God is Siva and who acknowledge the authority of the Vedas they are all the more bound by Hindu law except in so far as it is modified by custom.
26. As regards the evidence of custom the Subordinate Judge is of opinion that the custom has not been made out. The custom pleaded, as said before, is a general custom among the Lingayats and not a special or local custom in North Canara, or in the family of the adoptive mother. A large number of Lingayats, are found in the Mysore Province, Bellary, and the Southern Mahratta country. The Zemindari of Punganur is on the borders of the Mysore Province. So far as the Mysore Province is concerned, it has been held by the Chief Court of Mysore that the adoption of a married Lingayat is invalid. The judgment of the Chief Court is marked as Exhibit WW in this suit. The learned Judges of the Chief Court observed:
It is, however, desirable to say a few words on the validity of Kariappa's adoption which is referred to in the first and second grounds of appeal. It is found that Kariappa was married but the Courts have held that it was not a disqualification as he was a widower at the time of his adoption by the 1st defendant. The parties are Lingayats. Even if it be held that the law governing Sudras applied to them, according to Mr. Mayne, 'as regards Sudras, adoption could be performed effectually till marriage.' And in another place he quotes the Pandit's opinion that the period fixed for adoption is 'with respect to Sudras, prior to their contracting marriage,' page 178 (6th Edition). See also reference at page 179 to the case of Papamma v. Appa Rau : (1893)3MLJ80 . Though there is no express authority on the point, having regard to the fact that the questions of age, marriage, etc., are determined in the texts on the consideration of certain rites, such as Upanayanam, marriage, etc., having to be performed to the individual to be adopted in the adopted family, there is strong reason for holding that marriage is a bar in spite of the fact that the person concerned was a widower at the time of adoption.
27. So far as Bellary which is part of the Madras Presidency is concerned, we have not been referred to any decision where the adoption of a married man among the Lingayats in Bellary was upheld. As North Canara was part of Mysore and Madras Presidency, at least for 80 years, the presumption is that the rules as to adoption which are prevalent in the other parts of the Presidency and which are based on the Smritis are current in this Presidency and Mysore.
28. Though the Lingayats in the Vathulagama which, as the witnesses state, is binding on the Lingayats, fixed the fifth year as the proper age for a boy to be adopted, and though amongst the Lingayats and other communities adoption may by custom take place at a later age, there is no reason to suppose that there is a custom among the Lingayats in the Madras Presidency or in Mysore or in North Canara which was part of the Madras Presidency and Mysore, to so extend the age as to render valid by custom the adoption of a married man. It has, therefore, to be proved that in North Canara, where the adoption took place and the adoptive mother was living, there was a custom among the Lingayats by which the adoption of a married man was legal.
29. So far as the plaintiffs' witnesses are concerned, their evidence is. that such an adoption is not valid, but the defendants' witnesses speak to instances of adoptions of married men and those witnesses are defendants' 1st, 2nd, 4th, 5th, 8th to 15th and 21st witnesses. The difficulty in the case of some of these witnesses is that there is nothing to test their general statement that the adoption they speak to was that of a married man. There must have been deeds of adoption but no deeds are produced and such deeds, if the adopted boy was a major, would disclose the fact, as there would be no guardian mentioned and generally it may be taken that any boy over 18 would be married. The cross-examination of some of the witnesses when they speak of the man adopted being married shows that they have no conception of the years which they were speaking of.
30. The Subordinate Judge deals with the evidence of the witnesses in detail in paragraph 33 onwards of his judgment and it is not necessary for us again to refer in detail to it. He observes in conclusion:
I have shown that the evidence adduced to establish the custom alleged is not convincing nor clear. The custom has not obtained any judicial recognition so far either in Bombay or in Madras. In Bombay adoptions of married men have obtained judicial sanction, not because they are customary but because the Mayukha law approves of their validity. In the Mysore Province, such adoptions have been declared invalid by the Mysore Chief Court.
31. We agree with the Subordinate Judge that as a custom it has not been proved. In this view, it is unnecessary to consider the argument of the learned Advocate-General that as the adopted son, i.e., the 1st plaintiff, was a resident of Punganur in the Madras Presidency, it is his personal law that should govern the adoption, and that even if the adoptive mother belonged to North Canara and the custom as to adoption was, proved, the adoption would still be invalid. It is also unnecessary to consider the argument that the defence based on the validity of the adoption is res judicata by reason of the fact that it was not set up in the previous suit for recovery of arrears upon the agreement now sued on, as the knowledge of the defendant would not affect the question of res judicata, or the further question that even if the adoption is valid, the rights created by the agreement could still be enforced. As regards the questions raised in the Memorandum of Objections as to the amounts, payable under the agreement being' payable to the plaintiff's descendants also, we think it unnecessary to express any opinion and leave the question open. As regards claims of hunting and forest rights, it is conceded that plaintiff will be entitled to them under the agreement. Plaintiff will be entitled to interest at 6 per cent, on the amount claimed from date of suit to date of payment. No order as to costs on Memorandum.
32. We think the Subordinate Judge was right in holding that the custom as to the validity of the adoption of a married man has not been proved. The 1st plaintiff, therefore, continues to be a member of the Punganur family and the agreement entered into is enforceable by him.
33. We think the decision of the Subordinate Judge is right and dismiss the appear with costs.