SIR DINSHAH MULLA:
This is an appeal from the decree of the High Court of Judicature at Madras dated 30th March 1928, which reversed a decree of the Court of the Additional Subordinate Judge of Berhampore dated 20th December 1922. The suit out of which the present appeal arises was instituted by Nandamani Ananga Bhima Deo, the appellant, to recover from the respondent the zemindari of Chinnakimedi situated in the Ganjam District. The plaintiff claimed to be the son of Brojo Kishore Deo, who was at one time a zamindar of Chinnakimedi, by his wife Jhora. The defendant denied that Jhora was married to Brojo Kishore Deo, or that the plaintiff was the son of Brojo Kishore Deo. The trial Judge decided for the plaintiff. On appeal, the High Court at Madras differed from the trial Judge, and dismissed the suit. From that decree of the High Court the present appeal has been brought to His Majesty in Council. The sole question on the appeal is whether it has been established that a valid marriage took place between Brojo Kishore Deo and Jhora.
The zamindari of Chinnakimedi is an ancient impartible estate, and it descends by the rule of primogeniture to a single heir. The residence of the zamindars is Pudamari where they have their fort and palace. There is another zamindari adjoining it known as Peddakimedi. Both the zamindaris were held at one time by the same person until 1776 when one of the sons of the then zamindar took possession of Peddakimedi and another of Chinnakimedi, and the two estates have since then been held and enjoyed separately. In 1868, the holder of the Chinnakimedi zamindari was Adikonda Deo, who was a member of a joint Hindu family subject to the Mitakshara law. The following pedigree shows the relationship of the parties to the present litigation:
Before his death in 1868, Adikonda Deo gave to his widow, Kundanamala, a written authority to adopt a son to him. On the death of Adikonda, his brother, Raghunatha Deo, took possession of the zamindari. In 1870, Kundanamala, acting on the authority, adopted Brojo Kishore Deo as a son to her husband. Brojo Kishore Deo was one of the two sons of Lakshminarayana Deo, who was then the zamindar of Peddakimedi. The other son was Krupamaya Deo, who succeeded to the zamindari of Peddakimedi on the death of Lakshimanarayana Deo. Shortly after his adoption Brojo Kishoro Deo instituted a suit to recover the zamindari of Chinnakimedi from Raghunatha Deo, and the suit was decided in his favour upon the advice of the Board in 1876. Brojo Kishore Deo was then a minor, and the estate was managed by the Court of Wards. The Court of Wards appointed a guardian of his person, and he was sent for his education to the Raja Kumar Institute at Parlakimedi. Brojo Kishore Deo completed the age of 21 years in June 1890, and the estate was handed over to him by the Court of Wards in that month. It is the plaintiff's case that Brojo Kishore Deo was married to Jhora in 1888 in the palace at Pudamari, that Jhora lived after the marriage in the palace, and that Brojo Kishore Deo had four children by her, all of whom were born in the palace. Of these four children the eldest was a daughter born in 1889 or 1890, and the youngest was the plaintiff who was born on 4th September 1901. Two other sons, who were both born before the plaintiff, died in infancy.
On 9th May 1890, Brojo Kishore Deo married Ratnamala, who is still alive, and she was admittedly the Patta Mahadevi, that is, the senior Ranee or Queen. Kundanamala was her aunt, and she brought about the marriage. This marriage took place at Dharmapuri. Brojo Kishore Deo had no children by Ratnamala. It would appear from the books of account of the estate kept by the Court of Wards that about Rs. 15,000 was spent on the occasion of the marriage of Ratnamala. There is no entry in those books to show that any money was spent by the Court of Wards on any marriage with Jhora. Ratnamala resided in a spacious building attached to the palace and communicating with it. Jhora resided in a building equally spacious adjoining that of Ratnamala, and also communicating with the palace.
Shortly after Brojo Kishore Deo obtained possession of the estate, he granted a village called Chodameri as jaghir to Jhora. In 1893 he made a similar grant to her of another village called Narasingagodo. On 5th July 1894 he executed a kocheri potro, whereby he confirmed the grant of Chodameri, and substituted Gongapur for Narasingagodo at the request of Jhora. By this time he had also granted three villages as jaghir to Ratnamala. The income of the two villages granted to Jhora was about the same as that of the three villages granted to Ratnamala.
The first birthday anniversary of the plaintiff fell on 4th September 1902. On that day Brojo Kishore Deo held a festival on a large scale which was attended by sonthos (saints), mahants, pandas, pandits, pleaders and many others. Brahmans were fed, prayers were said in temples, and offerings of food were made in all the temples in the zamindari. At the close of the ceremony, Brojo Kishore Deo took the plaintiff to the temple attached to the palace. A report of the festival appeared in a Ganjam newspaper called Prajabondhu. As to this festival, Madanamohana Singh Deo, the zamindar of Dharakote, and a witness for the defendant, said:
"I cannot give any instance where a concubine's son's varsha vrithi (birthday anniversary) was performed on a noticeable scale. The varsha vrithi of a legitimate son of a zamindar is performed on a grand scale."
On 23rd July 1906, Brojo Kishore Deo purchased a village for Rs. 53,000 in the name of the plaintiff. On 14th August 1906, Brojo Kishore Deo is alleged to have executed a document authorizing Ratnamala to adopt a son to him. In that document it was stated that Brojo Kishore Deo had not until then been blessed with a son. On 31st August 1906, Brojo Kishore Deo executed another document called dattata will-namah, which will be adverted to later. Brojo Kishore Deo died on 3rd September 1906, leaving him surviving Ratnamala, Jhora, his son the plaintiff, and his daughter. The plaintiff was then of the age of about five years.
It was not disputed that Brojo Kishore Deo and Jhora lived together in the palace at Pudamari from 1890 to 1906 when Brojo Kishore Deo died, and that the first birthday anniversary of the plaintiff was celebrated on a scale quite unusual in the case of an illegitimate son. Nor was it disputed that Brojo Kishore Deo treated Jhora as his wife and the plaintiff as his son. The only question is whether Brojo Kishore Deo and Jhora lived together all these years on the footing of marriage or of concubinage. On 7th September 1906, Vaishna Deo made an application to the Collector of Ganjam to have his name registered as zamindar. In the application he stated that Brojo Kishore Deo had left no legitimate male issue, that he had left only an illegitimate son, and that he as his undivided cousin was entitled to succeed to the estate.
Vaishna Deo died within a fortnight after his application, and on his death his son Purushottama Deo applied to the Collector to have his name entered as proprietor of the zamindari. At this stage Ratnamala appeared on the scene, and on 5th December 1906, she presented the authority to adopt alleged to have been given to her by Brojo Kishore Deo for registration under the Registration. Act. This was followed by an agreement on 27th January 1907, between Purushottama Deo and Ratnamala, whereby in consideration of Purushottama Deo granting two villages to Ratnamala she agreed not to adopt a son without his consent. On the same day, another document was executed between Purushottama Deo and Krupamaya Deo, the natural brother of Brojo Kishore Deo, who had then succeeded to the zamindari of Peddakimedi. By that document Purushottama Deo agreed to pay Rupees 70,000 to Krupamaya Deo for bringing about the above settlement between him and Ratnamala, and Krupamaya Deo on his part agreed not to give any of his sons in adoption to Ratnamala. On 30th January 1907 Ratnamala withdrew the authority to adopt from the office of the Sub-Registrar. On 2nd April 1907 the name of Purushottama Deo was entered by the Collector of Ganjam as proprietor of the estate.
Meantime, in December 1907, Kundanamala, the widow of Adikonda Deo, purported to make a second adoption to her husband under the terms of the authority under which she had adopted Brojo Kishore Deo, by adopting a boy Madana Mohana. The latter subsequently brought a suit against Purushottama Deo to recover the zamindari, but the suit was dismissed on the ground that the power to adopt had come to an end. This decision was eventually confirmed upon the advice of the Board in 1918. In the plaint in that suit it was stated that Brojo Kishore Deo had died without leaving any legitimate issue. Purushottama Deo died on 24th October 1915, while the suit against him was pending, and he was succeeded in the possession of the zamindari by his brother Kunja Behari Deo, the defendant in the present litigation.
On 5th November 1915, Hatnamala adopted Jaganatha Bheema Deo, a son of Krupamaya Deo, purporting to do so under the terms of the authority of 14th August 1906. In so doing both Ratnamala and Krupamaya Deo were acting in contravention of the terms of the agreement with Purushottama Deo mentioned above. In 1916, the adopted son brought a suit against the present defendant to recover possession of the estate. The suit was dismissed on the ground that the document giving authority was not registered as required by law, and the decision was upheld upon the advice of the Board in 1921. Meanwhile, the plaintiff-appellant attained majority on 4th September 1919, and to raise funds for the prosecution of the present suit he sold the lands that had been purchased in his name by Brojo Kishore Deo. On 23rd August 1920, he brought this suit for the recovery from Kunja Behari Deo of the Chinnakimedi zamindari. By his plaint he alleged that Brojo Kishore Deo had two wives, Ratnamala who was the Patta Mahadevi, and Jhora who was the junior wife, and that he was the son of Brojo Kishore Deo by Jhora. He also claimed that Brojo Kishore Deo had, by the dattata will-namah mentioned above, recognized him as his successor to the estate. The defence was that the plaintiff's mother was not the wife, but a "Jhora,"that is, a concubine, of Brojo Kishore Deo ; that Brojo Kishore Deo was a Kshatriya and the plaintiff's mother was a low caste woman, and that a valid marriage between them was impossible ; and that even if Brojo Kishore Deo and the plaintiff's mother had gone through a form of marriage, the marriage was not valid as the requisite ceremonies had not been performed. The paternity and age of the appellant were not admitted, and the genuineness of the dattata will-namah was denied.
A large mass of evidence, both oral and documentary, was adduced by both the sides before the Subordinate Judge. The plaintiff's mother died in 1922 before she could be examined as a witness. Ratnamala is still alive, but she was not called as a witness by either side. It is a striking circumstance that though the plaintiff appeared in the witness box, the defendant, who was much older than the plaintiff, and who must have known a great deal of the relation between Brojo Kishore Deo and the plaintiff's mother, did not go into the witness-box. The defendant died in 1926 during the pendency of the appeal in the High Court, and his widow, Suseela Mala, was brought on record as his legal representative. (After recapitulating the evidence the judgment proceeded). The Subordinate Judge found that the plaintiff's mother was the daughter of Chintamani Singh and the sister of Kasinath Singh, that she was a Kshatriya by caste, and that Jhora, and not Moti, was her personal name. He also found that she was lawfully married to Brojo Kishore Deo, and that the plaintiff was the offspring of that marriage. As to the dattata will-namah he held that it was genuine. In the result he passed a decree in favour of the plaintiff.
On appeal, the High Court reversed the decree of the Subordinate Judge, and dismissed the plaintiff's suit. The appeal was heard by Kumaraswami Sastri and Reilly, JJ., who delivered separate, but concurring judgments. The learned Judges examined the evidence of Kasinath Singh, Artabandhu Singh and Raja Kumar Pratapchandra, and concurred in the findings of the Subordinate Judge as to the name, parentage and caste of the plaintiff's mother, and as to the place from which she came. But strange to say, while the learned Judges accepted the evidence of these witnesses on this, which was an essential part of the plaintiff's case, they rejected their evidence, as to the treaty for marriage. Kumaraswami Sastri, J., considered that it was improbable that there were any negotiations for the marriage. Reilly, J., on the other hand, was of opinion that there were some negotiations, but that they were negotiations not for a marriage, but for giving the plaintiff's mother in concubinage to Brojo Kishore Deo. As to this their Lordships may at once say that there is nothing in the facts of the case to suggest such a view, and that it is so highly improbable that it cannot be accepted. The learned Judges also discredited the testimony of witnesses of marriage. This they did, not on the ground of any inherent defects in their evidence, but on the supposed improbabilities of the case. In the result they held that the alleged marriage was not proved.
The first question for their Lordships' consideration is, whether there are any facts to justify the rejection of the testimony of the witnesses who deposed to the treaty for marriage and the marriage ceremony. The learned Judges considered that there were three such facts. Of these facts the first was that neither the natural father of Brojo Kishore Deo nor any of his relations were consulted by Kundanamala in the matter of the selection of the bride and that none of them was present at the marriage. As to this it is sufficient to say that it was admitted by the defendant's own witnesses, Satyababi Byano and Mohana Ghandayat, that none of them was consulted in the matter of the selection even of Ratnamala, and that none of them attended the marriage of Brojo Kishore Deo with her. Another circumstance which weighed with the High Court was that Kundanamala was not present at the alleged marriage with Jhora. This was admitted by the witnesses for the plaintiff, but they offered an explanation which was accepted by the Subordinate Judge. They said that after the arrangements for the marriage had been completed at Pudamari, Kundanmala changed her mind, and insisted on the marriage being celebrated at Molabhonja; that Brojo Kishore Deo would not agree to it, and Kundanamala was annoyed and left Pudamari. The learned Judges of the High Court considered that this was an improbable story. Their Lordships however see no reason to differ from the trial Judge.
Lastly, the learned Judges thought that the Court of Wards was not cognizant of the marriage, and considered that a very significant circumstance. They said that if the Court of Wards had been aware of Brojo Kishore Deo's marriage with Jhora, it would not have sanctioned a second marriage with Ratnamala while he was still a minor, nor would it have sanctioned the expenditure of such a large sum of money as Rs. 15,000 on the occasion of such a marriage. Their Lordships are unable to accede to this view. The powers of the Court of Wards in Madras are regulated by Act 1 of 1902. Under S. 23 of the Act :
"the Court may make such orders and arrangements, as to it may seem fit, in respect of the .... marriage(a) of any ward whose person is for the time being under its superintendence."
Section 34, Cl. (a), prohibits a ward from transferring any property which is under the superintendence of the Court and from entering into any contract involving him in pecuniary liability either personally or in respect of such property.
"But,"the section goes on to say, "nothing in this clause or S. 23 shall be deemed to affect the capacity of a ward to enter into a contract of marriage; provided that he shall not incur in connexion therewith any pecuniary liability except such as, having regard to the personal law to which he is subject, and to his rank and circumstances, the Court may, in writing, declare to be reasonable."
Brojo Kishore Deo married Ratnamala in May 1890. He completed the age of twenty-one years in June following, when the estate was handed over to him. He was quite competent under the Hindu law to contract a marriage, and the Court of Wards had no power to prevent it. No doubt, the Court of Wards had power, under S. 23 of the Act, to refuse to sanction the expenditure, but had it refused to do so, the marriage would have been postponed for two or three months at the most until Brojo Kishore Deo got possession of the estate, while the benefit to the estate would have been no more than the interest on Rs. 15,000 for that period. It is most unlikely, in the circumstances, that the Court of Wards would have withheld payment of Rs. 15,000 even if it had known that Brojo Kishore Deo was already married. Their Lordships are therefore of opinion that there is nothing in any of the circumstances mentioned above that could justify the rejection of the evidence of the witnesses either as to the negotiations for marriage or the marriage itself. Their Lordships will now turn to another part of the case. It raises the question as to the signification of the terms "Jhora, ""Phool Mahadevi,"and "Mahadevi"used in describing the plaintiff's mother in the documents marked X, II to VI, A, B, W and XV. As to this, the defendant's case was that "Jhora,"besides being a proper name, signifies among the Oriyah zemindars the favoured concubine of a zemindar; that "Phool Mahadevi"is another word for "Jhora"in the sense of a concubine; that it was in that sense that those terms were used in the documents; and that therefore the plaintiff's mother was the concubine, and not the wife of Brojo Kishore Deo. On the other hand, the plaintiff insisted that neither "Jhora"nor "Phool Mahadevi" signifies a concubine, and that both these terms are synonyms for "Sanna Mahadevi,"that is, a junior wife.
The term "Mahadevi"does not present any difficulty. It is clear from the evidence of the defendant's own witnesses, the Manager of the Court of Wards and the Zamindar of Dharakote, that "Mahadevi"signifies a married woman, and that it cannot be used in conjunction with "Jhora"in the sense of a concubine. The expression "Phool Mahadevi"does not appear in any Oriyah dictionary. The Zamindar of Darakote stated that he had never heard that word. The Manager of the Court of Wards said that he had heard it only once.
The rest of the defendant's evidence in this connexion is not reliable. In fact, the defendant himself in one of the grounds of appeal to the High Court stated that "Phool Mahadevi"was an unfamiliar designation invented to conceal the fact that the plaintiff's mother was a concubine. Their Lordships are therefore unable to agree with the High Court that "Phool Mahadevi"signifies a concubine. "Jhora,"according to Oriyah dictionaries, means a bunch of flowers. There is one dictionary however, in which the word is also stated to mean "Sanno Mahadevi"; jeopori (popularly called) Jhora Devi. But there is no dictionary in which "Jhora"is stated to mean a concubine. The Subordinate Judge thought that "Jhora,"in a secondary sense, is the equivalent of "Sanna Mahadevi,"that is, a junior wife. The High Court differed from him, and considered that it means a concubine. Their Lordships are not satisfied that "Jhora"signifies a concubine. Assuming that it does, they are of opinion, for the reasons stated later, that it has not been proved that it is used in that sense in the documents mentioned above. These documents must now be considered. (Here the judgment considered the documents and went on). Their Lordships think that there is nothing in any of these documents to show that "Jhora"is used in the secondary sense of a concubine. "Phool Mahadevi,"as already stated, does not signify a concubine. Those documents therefore do not support the defendant's case. On the contrary, they show that the plaintiff's mother was a married woman, for admittedly the term "Mahadevi"could not be used except in connexion with a married woman.
It will be convenient to consider here another point which was relied upon by the learned Judges of the High Court, and strongly urged on behalf of the defendant. It was this: that no claim was put forward by the plaintiff's mother on behalf of the plaintiff for about 13 years, and that she acquiesced in adverse claims made against the estate from time to time, and that these facts raised a strong presumption that the plaintiff's mother knew that she was not the wife of Brojo Kishore Deo and that the plaintiff was his illegitimate son. As to the plea of acquiescence their Lordships may observe that a minor is not bound by any acquiescence on the part of his guardian, though it may be a piece of evidence against him. How far it militates against him is a question dependent upon the facts of each case. (After adverting to evidence given in a previous suit, their Lordships proceeded). Their Lordships think that it is impossible in the face of this evidence to say that what the plaintiff's mother meant by "Jhora wife"was that she was a concubine of Brojo Kishore Deo. The evidence clearly shows that so far as she was concerned, she understood that she was the lawfully married wife of Brojo Kishore Deo, that her marriage with him took place in the ordinary form, and that she was his "Jhora wife"because her marriage took place before the Pattabhishekam ceremony.
It cannot therefore be said that the delay in bringing the present suit was due to any consciousness on her part that she was not married to Brojo Kishore Deo. It must have been due to other causes. What those causes were cannot now be definitely ascertained, for she died before she could be examined as a witness. But the circumstances of the case suggest several sufficient reasons. In the first place, she was, as their Lordships have already said, the victim of Krupamaya Deo's machinations. Then there was the difficulty of financing an expensive litigation up to the final tribunal of appeal, for the plaintiff had to sell the lands before he could sue. Lastly, she ran the risk, if she brought such a suit as the present, of being turned out of the palace with her infant children. (After considering the effect of three documents, their Lordships proceeded). In the result, their Lordships are of opinion that the marriage of Jhora with Brojo Kishore Deo is established, that Jhora was his junior wife, and that the plaintiff as his legitimate son is entitled to succeed to the estate. Their Lordships will therefore humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court, dated 30th March 1928, should be set aside, and the decree of the Subordinate Judge, dated 20th December 1922, restored. The respondent must pay the costs of the appellant in the High Court and before this Board.