1. The plaintiff, as the widow of the late Sri Ramachandra, zamindar of Hatgada, claimed to be trustee of a certain temple in the fort of Hatgada, and, as such trustee, she sued to recover possession of the village of Jannapuram, with the revenues of which that temple had been endowed; for the sum of Rs. 540, being arrears of revenue for Fasli 1288, and for subsequent revenue at the same rate; also for an injunction restraining the first defendant from interfering.
2. The first defendant claimed to be the trustee of the temple in question as the widow of her late husband Sri Chaitania Chandra, who, she alleged, had been adopted by the plaintiff as directed by her husband, the late zamindar. She also alleged that she was the mother and guardian of the minor son of the said Chaitania Chandra. In a second written statement the first defendant alleged that the late zamindar, plaintiff's husband, has made his will on the 2nd December 1859, whereby he had appointed the first defendant's husband trustee of the temple in question, and that, after her husband's death, she had been administering the trust on behalf of his minor son.
3. This will, Exhibit I, purports to have been made by the late zamindar after he had adopted Chaitania. It is therefore at variance with the first defendant's statement that the boy had been adopted by plaintiff herself.
4. The second defendant was manager under the first defendant and the others were her tenants.
5. The District Judge dismissed the suit with costs. Ho was of opinion that the plaintiff having written a letter to Chaitania's mother representing that the adoption was the act of herself and her husband, she was estopped from denying the adoption by the terms of Section 1151 of the Indian Evidence Act. He was further of opinion that the plaintiff adopted Chaitania after her husband's death, and that such adoption, being in accordance with her husband's wishes, was valid, although he had given no express authority to his wife to adopt. The Judge was further of opinion that Chaitania was trustee of the temple until he died in 1875. The alleged will was found to be a fabrication.
6. The principal questions argued upon the hearing of the appeal were whether the plaintiff made a valid adoption of Chaitania, the first defendant's late husband; and whether Exhibit I was the last will and testament of the late zamindar Sri Ramachandra.
7. It has been pointed out that some ambiguity attends the story of the adoption; for while the first defendant alleged in her written statement that the plaintiff had made the adoption as directed by her husband, the parties went to trial upon the issue whether the adoption was made by the plaintiff's husband; and finally the Judge found that the adoption was made by the plaintiff without express authority from her husband, but in accordance with his wishes.
8. With regard to the estoppel, it has been pointed out that it has not been pleaded. It was not the case set up by the first defendant that the plaintiff was estopped by her conduct from denying the adoption. It is found by the District Judge that she was estopped by the terms of a letter written by the plaintiff to the mother of the first defendant's late husband, in which she is said to have represented the adoption as the act of herself and her husband. The letter has not been produced, and no foundation has been laid for the admission of secondary evidence of its contents. Moreover, the mother of the first defendant's late husband is not a party to these proceedings, and the adopted son himself does not appear to have been misled by any representation made by the plaintiff. The supposed estoppel not having been pleaded, it was. not properly a question for the consideration of the District Court, and, if it had been pleaded, we are not prepared to say that upon the case, as it is disclosed by the evidence, we should hold that the plaintiff was estopped from denying the adoption. We think it clear from the evidence that the late zamindar Ramachandra died on his way from Chatrapur to Hatgada, and was carried on dead to Hatgada. Therefore, independently of the evidence from a comparison of signatures, it is clear that the will, which it is suggested that he executed after arriving at Hatgada, is a fabrication. That is probably the reason why it was not mentioned in the first defendant's first written statement. It is also clear that the boy Chaitania was not brought to Hatgada until the ninth day after the death of Ramachandra; and therefore the story of Ramachandra having joined in the adoption is untrue. There is no evidence that he left any direction to his widow to adopt. It appears that upon the death of her husband the plaintiff had no desire to adopt. But the people about her thought an adoption desirable, especially with a view to the possible recovery of fifty villages which had been attached and sold by Government for arrears of revenue. Pressure was put upon the plaintiff, and she then consented to adopt Chaitania from the family of a neighbouring zamindar. His father had died, but the plaintiff wrote a letter to his mother; and some influential men took the letter, and returned with the boy, who was then about twelve or fifteen years old. His upanayanam had not been performed. He went into the palace and prostiated himself before the plaintiff, and soon afterwards he was installed in the zamiadar's seat, and the late zamindar's sadi was tied upon him. It is remarkable that no religious ceremony of adoption was performed. But the boy was sent by his mother to be adopted (it is said that she was a lady who could not appear in public), and he was received by the plaintiff as her son, being immediately admitted into her private apartments, and was installed, as her son, as the successor of the late zamindar. Chaitania having left the family in which ho was born, never returned to it, but remained the adopted son of the plaintiff and of her late husband until his death in 1875; and during those fifteen years, from December 1859 to 1875, the plaintiff repeatedly acknowledged him as her adopted son, and never denied the adoption even when she was quarrelling with him.; and Mr. Forbes, the Governor's Agent, while he regretted very much that he bad not been able to prevent the adoption, which he thought would be displeasing to the Government, never questioned that an adoption had in fact been made. His successor recognized the adopted son, and authorized him to proceed to the next district with armed followers.
9. We think it clear, therefore, that the boy Chaitania was given and taken as an adopted son. There is no personal objection to him; and the only question is whether among Kshatriyas, to which caste the parties claim to belong, adoption is legally valid where there has been merely a giving and receiving in adoption without any religious or other ceremony. In the case of Singammav. Ramanuja Charlu 4 M. H. G. R. 165 the parties were Brahmans, and. it was not proved that the dattahomam or any other ceremony, except giving and receiving, was performed at the time of the adoption. The learned Judges in that case uphold the adoption, considering that, upon the authorities, the performance of dattahomam and other religious ceremonies was not essentially necessary- If such ceremonies are not essential where the parties are Brahmans, a fortiori they are not essential among Kshatriyas, who probably have no sacred fire. The case already quoted is supported by the opinion of Sir Thomas Strange and by the dictum of Lord Wynford in Sootrugtm Sutputty v. Sabitra Dye 2 Kna 290.
10. In the later case of Indromoni Choivdhrani v. Behari Lal Mullick L.R. 7 IndAp 24 the parties were Sudras, and it was unnecessary for the Judicia Committee of the Privy Council to go so far as was done in the Madras case, but much of the reasoning in the judgment of the Judicial Committee would apply with hardly less force to the case of an adoption among Kshatriyas.
11. In the second volume of Sir Thomas Strange's Hindu Law, page 88, there is a note by a very high authority, Mr. Ellis, in which he writes; 'But the proper dattahomam can be performed only by those castes which use the texts of the Vedas in their religious ceremonies; and in Southern India scarcely any caste but that of the Brahmans now use those texts.'
12. In the present case the boy was given and taken in adoption, and the adoption has been recognised for many years, and we should be unwilling to set it aside unless it should clearly appear that it was void for the omission of religious and other ceremonies. But, assuming that the parties are (as they claim to be) Kshatriyas, it is not clear that any such ceremonies are essentially necessary to validate an adoption in that caste according to the law prevailing in this Presidency. On the contrary there is a good deal of authority, including the decision already quoted from Singammav. Ramanuji Charlu 4 M.H.C.R. 165 to the contrary.
13. We must therefore hold that the first defendant's late husband Chaitania was the adopted son of the plaintiff, and that his widow, the first defendant, was entitled to administer the temple trust during the minority of her son in preference to the plaintiff'.
14. The decree of the District Court must therefore be affirmed, and this appeal must be dismissed with costs.
Muttusami Ayyar, J.
15. I concur. I may, however, add that if the question, whether religious ceremonies are essential to adoption, were res Integra, I should feel considerable difficulty in holding that the ceremony of dattahomam is not of the essence of a valid adoption among the three higher classes. But I am concluded by the decision in Singamma v. Ramanuja Charlu 4 M.H.C.R. 165 which has since been, followed in this Presidency. The evidence in the record sufficiently indicates that the plaintiff did make an adoption; that among those who aided it there was also her husband's brother; that there was a gift and an acceptance in adoption, and the transfer of the adopted child from his natural mother to the adoptive mother; and that the plaintiff had since recognised the adoption for many years after it was made.
16. Although the first defendant's mother did not personally give the boy in adoption, but only sent him to be received in adoption, I do not think that this is an objection fatal to its validity, especially after both families had acquiesced in it from 1859 to 1875 and until the death of the adopted son.
17. As to the objection that the adoption by the plaintiff was not the case set up by the first defendant, the witnesses on both sides proved an adoption by her, and although it would have been more regular to amend the issues, still the plaintiff does not appear to have been prejudiced by this omission. The fourth ground of objection was not pressed upon us at the hearing, and I would also dismiss this appeal with costs.
[Section 115: When one person has, by his declaration, act, or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.