JUDGMENT
1. The question in this appeal was as to the construction of a codicil to the will of the Into Maharaja of Balrampur who was a Hindu of the caste, by which he purported to make provision for J. B. his son by a Muhammadan mistress, who, as held by the Courts below, was by birth a Muhammadan, He afterwards, however, became as far as was possible a Hindu. The appellant (plaintiff) was the eldest son of J. B. by a Muhammadan woman, and the second, third and fourth respondents were his brothers, and there were concurrent findings of both Courts in India that there was no valid marriage between J. B. and their mother and that they wore consequently illegitimate. The first respondent was the son of J. B. by a Hindu lady of the caste with whom he had admit tadly gone through a marriage according to the strict Hindu rites; and when that lady died his father got him married to another lady of the same caste. On the death of J. B. in 1899 the first respondent obtained possession of the property in suit, and the appellant sued for it, the question being whether the appellant was an "issue" of J. B. within the meaning of the word "aulad "as used in the codicil, and as such on titled to inherit J. B's property. The first respondent contended that the appellant being illegitimate could not take under the terms of the codicil; that J. B. had been a Hindu from his boyhood to his death, and that he (the first respondent) being the only son o£ the first Hindu marriage which was a valid one, was the heir of his father, and, on the true construction of the codicil, on titled to the property in suit. By the codicil, dated the 15th of March, 1873, the testator, after reciting that his son J. B. "being not born of Khas Mahal, was not capable of the gaddinaslnni and the proprietorship of the riasat'' continued: "But he also being born of my loins it is incumbent on me that such means be provided as would enable him and his issue (aulad) to support themselves well and with respect".... Accordingly the settlement is made as follows: "Rs. 4,000 per mensem, or Rs. 48,000 per annum" (the income derived from certain village named) shall be continued to be paid by the proprietor of the riasat, the locum tenens of the gaddinashin for the time being, and that amount shall be paid to J. B. and his issue (aulad) for generation after generation so long as the family (khandan) of J. B. and his issue (aulad) remain ia existence...(3) for his life-time J. B, has a right to spend their money, but after his death from among his issue (aulad) one person (jisko haq pahunchta hows), to whom the right may go, shall be considered proprietor of this maintenance allowance, without division, as a rais. The other issue of the family of J. B. shall be entitled to get food, raiment and other necessaries out of the monthly allowance. (4) When there remains no descendant of the family of J. B. at any time the monthly allowance of Rs. 4,000 will be resumed and remain in proprietary possession of the proprietor of the riasat, the gaddinashin" The Court of the Judicial Commissioner held that "aulad" prime facie meant legitimate issue, and dismissed the suit.
2. Held (upholding that decision) that the case was not one where a gift is made by will of the corpus of a fund or a life interest in a fund to tha " children " of the testator, or of another, as class. There might be good reason in soma such cases for holding that in India the word " children " includes illegitimate children. But here a succession of life interests from generation to generation is intended to be set up, the successor, or 'proprietor,' in each instance being vested with an absolute control of the income subject only to the duty of maintaining the the issue (aulad) of the family (khandan) of the first proprietor J. B. There was nothing on the face of the codicil to suggest that a meaning should be given to the word " aulad " different from its prima facie meaning. To include illegitimate issue would bring into the has of succession not only the testator's illegitimate grand-children, but their illegitimate issue from generation to generation. Such a construction would render condition No. 4 rather unnecessary and would also defeat the whole purpose and object of the testator in establishing the succession of life interests. Nor was there any reason for extending the meaning of the word " khandan," which ordinarily refers to the group of descendants who constitute the family of the proprietor, so as to include illegitimate offspring, who from the necessities of the case cannot share in the family life or its worship or ceremonials.
3. Held also, that the fair result of the evidence was that J. B. did his utmost to become an orthodox Hindu, and to pass as such in the society in which he lived, and that his father from the boy's youth upwards aided and encouraged him in those efforts. The testators treated his marriages with the two ladies as lawful marriages, and desired that others should so treat them, and consequently resolved to regard and treat the offspring of those unions as legitimate, and desired that they should be so treated and regarded by others; and that it was in this frame of mind he made the testamentary disposition in dispute. Having regard to all the evidence in the case, and the provisions of the codicil itself the intention of the testator plainly was to treat the marriages of J. B. with the two Women of the caste as valid marriages and the issue of those marriages as legitimate issue.
4. Appeal from a judgment and decree (26th February, 1906) of the Court of the Judicial Commissioner of Oudh, which affirmed a judgment and decree (3rd January, 1905) of the Court of the Subordinate Judge of Gonda.
5. The principal questions for determination on this appeal were (a) whether the appellant was an " issue" of one Jang Bahadur Singh deceased within the meanning of the word aulad, as used in a codicil to the will of the late Maharajah of Balrampur, Sir Drigbijai Singh, dated the 15th of March, 1878; and (b) whether the appellant was entitled to inherit the property left by the said Jang Bahadur Singh.
5. The facts of the case, and the terms and conditions of the codicil, are sufficiently stated in the judgment of their Lordships of the Judicial Committee.
6. The case for the appellant (plaintiff) was that Jang Bahadur Singh was by birth a Muhammadan; that he married Najm-un-nissa by nikah; that the appellant, and the respondents (defendants) 2, 3, and 4 were the issue of that marriage, the appellant being the eldest; that a lawful marriage between Jang Bahadur Singh and the first respondent's (Ganga Bakhsh Singh's) mother was impossible, and therefore Ganga Bakhsh Singh was an illegitimate son of Jang Bahadur Singh; that the appellant as the eldest of the legitimate issue of Jang Bahadur Singh was entitled to the whole of the property in suit both under the terms of the codicil, and according to the rule of primogeniture which regulates the succession to the taluqa of Balrampur and applied to the property in suit; that if that rule be held to be inapplicable, the appellant and respondents 2, 3 and 4 were entitled to the property under the Muhammadan law, and the result would be the same even if Ganga Bakhsh Singh be held to be legitimate; and that if the appellant, his brothers, and Ganga Bakhsh Singh were all held to be illegitimate the appellant was entitled to succeed according to conduct and custom.
7. Ganga Bakhsh Singh's (the first respondent's) case was that Jang Bahadur Singh was not married to the appellant's mother; that Jang Bahadur Singh was not a Muhammadan by birth, and that-if he was, he was brought up, lived and died as a Hindu; contracted a lawful marriage with Hansraj Kunwar, and therefore Ganga Bakhsh Singh was legitimate, and was entitled to the whole of the property in suit to the exclusion of the appellant and his brothers, who were illegitimate and could not succeed either under the codicil or by Muhammadan law or otherwise.
8. The Subordinate Judge found that Jang Bahadur Singh, though presumably a Muhammadan by birth, never in fact professed the Muhammadan religion; that the appellant and his brothers were the illegitimate sons of Jang Bahadur Singh and therefore not his heirs; that Jang Bahadur Singh was not horn a Hindu, hut that he all his life professed the Hindu religion; that neither the Hindu law nor the Muhammadan law, nor the Succession Act governed the descent of his estate, but that the principles of justice, equity awl good conscience applied; that by those principles the succession to Jang Bahadur Singh's estate should be decided, under the circumstances, in accordance with the rules of Hindu law by which Ganga Bakhsh Singh (the fist respondent) was Jang Bahadur Singh's sole heir. The Subordinate Judge also found that Balrampur was a Raj to which the rule of primogeniture applied, but that the rule was not applicable to an illegitimate son. In accordance with these findings a decree was made dismissing the suit.
9. An appeal to the court of the Judicial Commissioner was heard by mr. W. E. Chamire (First Additional Judicial Commissionre) and Mr. W. F. Walls (2nd Additional Judicial Commissioner) the main judgment being delivered by the former, the latter concurring. After stating the fests and the terms of the codicil, the judgment proceeded:
The most important Clauses so far as this case is concerned are the 3rd and 4th, which are as fallows: (3) For his life-time Jang Bahardur Singh has a right to spend this money, but after his death one of his aulad on whom the right may devolve (jisko haq pahunchta howe) shall be considered entitle to of Jang Bahadur singh shall be entitled to get food, raiment other expenses out of the maintenance allowance, and in addition to get food, raiment and other expenses out of the maintenance allowance, and in addition to this, the representative of Jang Bhadur Singh, whoever he may be, shall pay the marriage and funeral expenses of male and female children which may from time to time to time be required in the family of Jang Bahadur Singh for generation after generation. (4) When thee remains no descendant (aulad men se koi nasal baki na rahe) of the family of Jang Bahadur Singh for generation allowance of Rs. 4,000 will be resumed and become the property maintenance allowance of Rs. 4,000 will be resumed and become the property of the owner of the taluga.... The questions which we have to decide upon this codicil are, firstly, whether the word aulad includes illegitimate as well as as legitimate issue, and secondly what is the meaning of the words, 'jisko haq pahunchata howe.' It is part of the case of the plaintiff that if ha and his brothers and the first defendant he all held to be illegitimate, the plaintiff as the eldest is entitled to possession of the property according to conduct and custom.' It was contended that if all are illegitimate, the Maharaja must have been aware of their position, and that therefore when he used the word aulad in the codicil he must have intended to refer or at least to include illegitimate issue. Primd facie the word aulad refers only to legitimate issue, and must hear the same meaning wherever it cccurs in the codicil, There is in the codicil a distinct provision for the ultimate reversion of the property to the taluqa in case there should at any time be no representative of the family of Jang Bahadur Singh, This la a strong indication that the Maharaja used the word aulad in the sense of legitimate issue, and there appears to he nothing in the codicil to suggest the contrary. There can be little doubt that the Maharaja believed that the issue of Jang Bahadur's marriage with Hansraj Kunwar would be regarded as legitimate. If it is a fact that Jang Bahadur was married to the plaintiff's mother by Mikah the Maharaja must have been aware of it; but it no nikah took place, the Maharaja must have known that the plaintiff and his brothers ware illegitimate, and ho could scarcely have intended that the property which he left to Jang Babadur should on the latter's death descend to illegitimate issue by a Muhammadan woman, along with legitimate issue by a Hindu woman. Such a collection of persons could not be called a family (khandan). There fore it seems to ma that if the plaintiff is held to be illegitimate he cannot succeed under the codicil. As regard property in lists B and 0 it is quits certain that the plaintiff's case must fail if he is illegitimate, for the Muhammadan law of the Sunni sect does not recognize any right of succession to their father on the part of illegitimate children. I am there fore of opinion that the plaintiff's suit must fail in its entirety if ho is held to be illegitimate.
10. On the question whether Jang Bahadur was by birth a Hindu or a Muhammadan, the appellate court held with the Subordinate Judge that he was a Muhammadan by birth.
11. As to whether Jang Bahadur was during his life a Hindu or a Muhammadan, the appellate Court, after discussing the evidence, said:
It is evident that ha was neither an orthodox Hindu nor an orthodox Muhummadan. It appears to me he led a double life as was almost inevitable under the circumstances. Ho no doubt called himself a Hindu, and if he had any religion it was, as the Subordinate Judge says, the popular idolatrous form of Hinduism, but he is not proved to have been an orthodox Hindu, and therefore it seems to me that if the plaintiff were found to be of legitimate birth, the circumstance that his father became a Hindu to the extent shown by the evidence would be no reason for passing over the plaintiff and giving the property to the first defendant,
12. In the view which the Court took of the evidence on the question of the nikah, it held, however, that whether Jang Bahadur became a Hindu or not was not important; the crucial question being whether there was a nirak marriage between the plaintiffs mother and Jang Bahadur. As to that, after discussing the evidence, the appellate Court said;
The story of the nikah is full of improbability. In the first place the plaintiff's mother, if not a khidmatgarin, was at any rata the daughter of a complete stranger of no social standing. If the Maharaja or Imam Bandi had wished to marry Jang Bahadur to a Muhammadan girl there would have been no difficulty in arranging a marriage with a respectable family as in the case of the Hindu marriages. One of the plaintiff's witnesses, Ram Prasad, No. 11, suggests that there was a big tamasha, or show, at the marriage; that there was music; that balloons were sent up: but the rest of them make out that the marriage was a very quiet affair. His first marriage is probably the most important event in a Muhammadan boy's life, and it is inconceivable that Jang Bahadur should have been married to the plaintiff's mother in the manner described by the plaintiff's witnesses. It is also most improbable that the Maharaja would have arranged for Jang Bahadur to marry the first defendant's mother, a respectable Hindu girl, if Jang Bahadur had been solemnly married to a Muhammadan girl a year or two before. It is certain that a nikah, if it took place, could not have been kept secret. The only well proved fact which tells in favour of the alleged nikah is the treatment of the plaintiff and his brothers by the Maharaja; but it is evident that for some reason or other the relations between. Jang Bahadur and the plaintiff's mother were countenanced by Imam Bandi. The two women lived together in the same house for over 20 years. The Maharaja was a constant visitor at the house. He may have become fond of the boys or ha may have been induced to be kind to them by Imam Bandi, However that may be, the plaintiff has in my opinion failed to adduce reliable evidence of the nikah, and I think it is impossible to infer the existence of a lawful nikah from such cohabitation as has been proved, or to presume that the plaintiff and his bothers are legitimate from trio conduct or statements of Jang Bahadur. I find that the nikah has not been proved.
In this view of the case it is not necessary to express any opinion upon the guestion whether the first defendant should be regarded as a legitimate son. His mother was married to Jang Bahadur at the instance of the Maharaja, who must have known that the plaintiff and his brothers were illegitimate.
Under these circumstances it cannot be supposed that when the Maharaja wrote that the villages devised to Jang Bahadur should on his death devolve upon the child jisko haq pahunchta howe (to whom the right may accrue) he intended that the villages should devolve upon the plaintiff, and that the first defendant should be entitled to no more than food, raiment and other necessary expenses.
As regards the property in lists B and 0 it is sufficient to say that inasmuch Man illegitimate son cannot. under the Sunni law succeed to his father, the plaintiff, who has been found to be illegitimate, has no right to that property.
The appeal was accordingly dismissed.
On this appeal
13. Sir B. Finlay, K.C., and B. Dube, for the appellant, contended that Jang Bahadur was by birth a Muhammadan, and he could not, and did not, after renouncing Muhammadanism become a member of the caste under the Hindu law and usage. No one could become a member of any high "caste" among Hindus except by birth. He could only have become a Sudra at beat. A man could not become a Hindu by merely adopting the Hindu religion and calling himself a " Hindu;" and no amount of belief in the Hindu religion could bring a man within any Hindu caste, except possibly the Sudra caste. Again, a Hindu marriage to be valid must be between persons of the same caste. Reference was made to Mayne's Hindu Law, 7th edition, pages 105, 106 and 107 (paragraphs 87, 88 89); Tagore Taw Lectures (1878) by Guru Das Banerji, Hindu Law, Chapter on Marriage and Stridhan, pages 68, 74; Padam Kumari v. Suraj Kumari (1906) I. L. R. 28 AIL 456.; Bai Kashi v. Jamnadas Mansukh (19l2) 16 Indian Cases 133.; Sespuri v. Dwarka Prasad (1912) 16 Indian Cases 222; Melaram. Nudial v. Thanooram Bamun (1868) 9 W. R. 552; Narain Dhara v. Rakhal Gain (1875) I. L. R. 1 cale 1; and the Marriage Act (III of 1872) Section 2. The marriage of Jang Bahadur with Hansraj Kunwar was therefore invalid, and the first respondent (Ganga Bakhsh Singh) was illegitimate. It was contended also that the word aulad in the codicil included illegitimate children, see Wilson's Glossary, definition of "aulad." The word was not to be read by the light of the English decisions in which the word "children" must be taken to be legitimate children. Barlow v. Orde (1870) 13 Moo. I. A. 277 (307, 312) per Lord Westbury; and Skinner v. Naunihal Singh (1913) I. L. R. 35 All. 211: L. R. 40 I. A. 114 were referred to. The evidence showed that all five of the children were treated equally by the testator. But the appellant's case was not rested on the treatment of the children, but on the question of law that Jang Bahadur could not be a Hindu, so as to make a valid marriage with a woman of the caste. In the higher castes of Hindus illegitimate descendants do not aucceed where there are legitimate issue, but in the case of all the issue being illegitimate then the eldest son would have the property as rais. If the testator had desired to exclude illegitimate descendants he would have said so clearly. Therefore by the use of the word "aulad," it is submitted, he did not exclude them. At any rate he did not intend to leave them with no provision for their maintenanca On the question of what law should govern the case, it was contended that it must be decided by the law of justice, equity and good conscience. The question was what did that law demand? Under the present division the eldest son had nothing, not even maintenance; that was not in accordance with equity and good conscience.
14. De Gruyther K. C., and E. U. Eddis, for the first respondent, contended that the case now made was different from that made in the plaint, where the appellant claimed to succeed to the property in suit by the custom of primogeniture as the eldest legitimate son of Jang Bahadur, or in the alternative, to a fourth share equal to the share of each of his three brothers, the second, third and fourth respondents. But the appellant could only succeed as to the either part of the property on proof of a valid marriage according to the Muhammadan law between Jang Bahadur and the appellant's mother; and there were concurrent findings of both Courts in India that there was no such valid marriage; and the appellant was therefore illegitimate according to the Muhammadan law applicable to Sunnis. The meaning of aulad in the ordinary sense was nothing more than "children" which in England would be taken to mean "legitimate children" [Sir R. Finlay, K. C.---Aulad includes both legitimate and illegitimate children; if there are legitimate children, they would exclude those who were illegitimate: but if there are none legitimate, all, though illegitimate, can inherit.] The terms of the codicil, it was submitted, excluded illegitimate issue. The "descendants" are called aulad, which should have the same meaning throughout the codicil. It means legitimate issue. The words "to a man and his issue (aulad) from generation to generation" was the common form in India of creating an estate of inheritance. The object of the codicil was to provide for Jang Bahadur, and not to provide maintenance for his illegitimate children who had no claim on the testator, The Maharaja had during his life-time given large estates to Jang Bahadur, out of which he could have provided for his illegitimate issue; and a settlement was made on Imam Band with power to appoint, which was exercised by her, add the appellant and his brothers were so provided for. Ganga Bakhsh Singh was believed by Jang Bahadur to be his legitimate son, who would succeed him, as indeed he did. Jang Bahadur was, according to the evidence, treated by the caste people, as a member of the caste. The authorities cited to show that the marriage of Jang Bahadur and Hansraj Kunwar was invalid were not to the point. They showed that the marriage of a member of one caste to one of another caste was not valid; they do not decide that the marriage of a man who was recognized by the caste as a member with a woman was illegal.
15. The law applicable to the testator was the Hindu law, and that must certainly be the law by which he intended the will and codicil to be construed. The word khandan (family) used in the codicil must mean Hindu family which would not include illegitimate children who are not recognized by the Hindu law for the purpose of succession. A Hindu supposes legitimacy of issue and desires to keep the family property joint. Here those principles are intended to be followed by giving the property to one (legitimate) and so providing against partition. Reference was made to cases laying down rules for the construction of Hindu wills: Soorjeemoney Dosaee v. Denobundoo Mullick (1857) 6 Moo I. A. 526 (550); Muhammad Shumsool Hooda v. Skewukram (1874) L. R. 21 A. 7(14); and Radka Prasad Mullick v. Rani Mani Dosaee (1903) I. L. R. 35 Calo. L. R. 35 I. A. 118. The testator believed that Jang Bahadur's marriage with Hansraj Kunwar was valid and that Ganga Bakhsh Singh was legitimate, and, it was submitted, intended legitimate issue to inherit. The construction suggested for the appellant would make heirs, not only of the legitimate and illegitimate issue of Jang Bahadur, but also of the legitimate and illegitimate descendants of such issue of whatever religion they might be. The testator would never have intended that. Even if aulad included both legitimate and illegitimate issue, the first respondent as being legitimate would exclude the appellant. It was submitted that Jang Bahadur was practically a Hindu, and adopted the Hindu religion and usage, and to apply that law would be in accordance with justice equity and good conscience. Reference was made to Abraham v. Abraham (1862) 9 Moo I. A. 198 (239); Ghosal v. Ghosal (1906) I. L. R. 91 Bom 25 (30); Mayne's Hindu Law 7th edition pages 71, 72 where that case was referred to: and J.N. Bhattacharji's "Hindu Castes and Sects" page 5; and Gurudas Banerji's Hindu Law, "Marriage and Stridhan" 2nd edition, page 73, as showing that it was not impossible to obtain admission, to caste.
16. Sir R. Finlay, K. C, in reply. There was no evidence to show that the testator believed that the marriage of Jang Bahadur and Hansraj Kunwar was valid. The Subordinate Judge treated the question as one of religion, and ignored its relation to caste. The evidence of the respondent showed he was not recognized as a member of the caste. Jang Bahadur could never have been a member of the caste. Reference was made to Wilkins' "Modern Hinduism" pages 262, 263: and Sherring's Hindu Tribes and Caste," Introduction, pages XXII and XXIII.
17. 1913, December 10th: The judgment of their Lordships was delivered by Lord Atkinson
18. This is an appeal from a judgment and decree, dated the 26th of February, 1906, of the court of the Judicial Commissioner of Oudh, which affirmed a judgment and decree, dated the 3rd of January, 1905, of the court of the Subordinate Judge of Gonda, dismissing the plaintifi's suit.
19. The action out of which the appeal arises was instituted on the 3rd of April, 1902, by the plaintiff as eldest son and heir of his father Jang Bahadur Singh, by a Muhammadan woman, claiming to recover the possession of the several villages mentioned in the schedule annexed to the statement of claim, the same forming part of an estate called the Balrampur estate, which had been bequeathed to the plaintiff's father by his, the plaintiff's paternal grandfather, the Maharaja of Balrampur, by a codicil, dated the 15th of March, 1878, to the last will of the Maharaja. Possession of these villages had been taken in the year 1899 by the first defendant, and since then retained by him. Mesne profits were claimed in respect of this possession, and a claim was added to recover possession of the immovable and movable property mentioned in schedules B and C, also annexed to the statement of claim, or in the alternative the plaintiff's legal share thereof, on the ground that the same was property acquired by the plaintiff's said father, with an additional claim for further relief.
20. The first defendant, Bhaiya Ganga Bakhsh Singh, filed a written statement alleging that the plaintiff was the issue of a Muhammadan woman with whom his, the said defendant's, father, Jang Bahadur Singh, had had illegal intercourse, as were also the defendants numbered 2, 3, and 4, and that her nikah had never taken place; that his father followed the Hindu religion bigotedly, and was a Hindu from his boyhood up to his death; that he married for the first time a Hindu lady of a Surajbansi Chhattri family; that the defendant No. 1 was the only child of that marriage, 13 the only legitimate son and heir at law of his father, and is consequently under the provision of the said codicil entitled to the allowance therein mentioned.
21. The plaintiff replied traversing the several allegations contained in this and the other written statements filed by other defendants, and upon these pleadings the eight issues were knit (1) A vast body of evidence was given bearing upon each of these issues. Many of them are no longer of importance on this appeal, which is the ultimate stage of the litigation. The real questions now in dispute are, first, the proper construction of the language of this codicil of the 15th of March, 1878, and, second, the actual intention which the Maharaja desired to effect in executing it.
22. The facta, ao far as material to the decision of these questions, are as follows, The pontiff is the first-born son of his father, and the defendants 2, 3, and 4 are his brothers, sons of Jang Bahadur Sing by the Muhammadan woman already mentioned. It has been found as a fact by both the Courts before which this case has come, that no ceremony of marriage was ever gone through between Jang Bahadur Singh and-this woman; that she was his mistress, not his wife, and that, consequently, the plaintiff and his brothers are illegitimate. The appellant accepts this finding as conclusive on this point. The first defendant is the son of Jang Bahadur by a Hindu lady of the Chhattri caste with whom he had, admittedly, gone through the ceremony of marriage according to the strict Hindu rite.
23. The validity of this marriage is impeached by the plaintiff upon the ground that at the time it was celebrated Jang Bahadur was neither a Hindu nor a member of the Chhattri caste, and that consequently the first defendant is, like the plaintiff and his brothers, illegitimate, The issue thus raised necessitated a somewhat lengthy examination of the life-history of Jang Bahadur. He was, as already mentioned, the son, born in the year 1846, of a rather distinguished man, a Hindu by religion of the Junwar Chhattri caste, Sir Drigbijai Singh, Maharaja of Balrampur, by a Muhammadan mistress named Imam Bandi, and was therefore as held by both the courts abovementioned, a Muhammadan by birth. This decision is also accepted by the appellant).
24. The Subordinate Judge dads that "Jang Bahadur was brought up, not as a Muhammamdan under the influence of his Muhammadan mother, but by his Hindu father in the religion of Hindus; that he never professed the Muhammadan religion and was never a Muhammadan in fact; that after he was able to make a choice he did not choose the religion of Islam, but on the other hand lived and died in the faith of Hinduism; . . . that he was throughout his life a follower of the popular idolatrous form of Hinduism, a form directly antagonistic to the cardinal principles upon which the religion of Islam is founded;" and he (the Judge) "came to the conclusion that as Jang Bahadur was never throughout his life a Muhammadan, the Muhammadan law did not regulate the succession to his estate, and as he was not a Hindu by birth neither did the Hindu law regulate it; that neither of these laws nor yet the Indian Succession Act governed him at his death; and that according to the principles of justice, equity and good conscience, and by the application of so much of the Hindu law as was applicable to the case, Ganga Bakhsh Singh, the first defendant, was his father's legitimate son and sole heir."
25. The court of the Judicial Commissioner, whilst abstaining from pronouncing any definite opinion on the legitimacy of the first defendant, gave in the following passage of their judgment a sketch of the status, life and character of Jang Bahadur Singh, which, though it differs to some extent from that of the Subordinate Judge, is, in their Lordships' view of the evidence, fairly accurate. It runs thus :
Jang Bahadur belonged to no caste, and oven if the issue of his marriage with Hansraj Kunwar. should be held to be legitimate, a point on which I express no opinion, it is clear that tile Hindu community at Balrampur treated the validity of the marriage as open to question. The Subordinate Judge has cited several authorities to show that the Hindu religion admits proselytes of all kinds. The truth of this is indisputable, but it is equally true that the admission of a proselyte and his descendants into the society of orthodox Hindus is a very slow process. The defendant's witnesses hit off the position exactly when they say that they might eat with Jang Bahadur's family if they persevered in their Hindu habits and maintained their character for several generations (sea the evidence of defendants witnesses nos, 9 and 10). In two parts of one and the same house Jang Bahadur had a Muhammadan and a Hindu family and seems to have been on equally affectionate terms with both. He ate food in English Hotels and Railway Refreshment rooms, drank gin and kept fowls and pigs. It is evident that he was neither an orthodox Hindu not an orthodox Muhammadan. It appears to me that he led a double life as was almost inevitable under the circumstances. Ha no doubt called himself a Hindu, and if he had any religion it vas, as the Subordinate Judge says, the popular idolatrous form of Hinduism, hut he is not proved to have been an orthodox Hindu and therefore it seems to me that if lie plaintiff were found to be of legitimate birth the circumstance that his father became Hindu to the extent shown by the evidence would be no reason for passing over the plaintiff and giving the property to the first defendant.
26. It has been urged on behalf of the respondents that the Court of the Judicial Commissioner was mistaken in supposing that Jang Bahadur kept his two families in two sides of the same house, that in truth and fact, be kept them in two different houses. This is really a small matter and does not affect the general accuracy of the passage.
27. A vast body of evidence was given describing in great detail the participation of Jang Bahadur Singh on many occasions in the most solemn rites and ceremonies of the Hindu religion. It was proved by many witnesses that he wore, somewhat ostentatiously, the indu tilak on his forehead; that he was invested by his father with the sacred thread; that he kept a Hindu cook to cook his food, &c, The fair result of the evidence in their Lordships' opinion is that Jang Bahadur did his utmost to become an orthodox Hindu, and to pass as such in the society in which be lived; that his father, from the boy's youth upwards, aided and encouraged him in those efforts and, finally, when he was only 15 years of age, procured a marriage to be celebrated with great pomp and rejoicing according to the strict Hindu rite between him and the already mentioned Hindu lady of the Chhattri caste, Hansraj Kunwar.
28. This lady's family were apparently not well off, and it was stated in evidence that the Maharajah gave to her brother Sheo Dayal a village to induce him to consent to the union. This, however, only proves the anxiety of the Maharajah to bring about the marriage. No doubt the Maharajah did not attend the ceremony himself, He allowed certain priests to perform for him those ceremonies properly performable on such occasions by a father, but the marriage cannot but be regarded as a somewhat bold attempt to force, as far as possible, the son's entrance into the ranks of a high (twice born) caste, and it might well be that the father, as the Subordinate Judge thought, may have absented himself from the ceremony from motives of prudence. On the other hand it is difficult to believe that all the parties concerned, Sheo Dayal, with his own sons and his daughters to get married, the Maharajah with his position and distinction, the priests with their duties to their religion and office, and all those who assisted at the ceremony with their notions of what was due to their creed, would have promoted, or taken part in an elaborate public function if they knew that it could at best create only a relation of permanent concubinage, without hope or prospects of elevation into a worthier and more respected state. The evidence of Sheo Dayal is important in this connection. He said lie went with two Pandits to visit the Maharajah, that he had learned that Jang Bahadur was a Muhammadan woman's son, that on his expressing his scruples about the contemplated marriage owing to this fact the Maharajah assured him that Jang Bahadur was a Hindu; that he (the Maharajah) held him (Sheo Dayal)by the arm and said: "From childhood I have got him suckled by a Brahman woman. He eats with me. He does puja, and his ways are the ways of a Hindu." Sheo Dayal further says that Jang Bahadur Singh wore a tilak of chandavan, that his cook was a Hindu, that he saw him sitting near the Maharajah at dinner, and that hearing and seeing this he, Sheo Dayal, consented to the marriage of his sister with Jang Bahadur. No doubt it is stated by another witness that the Maharajah did not sit at meals with this son, but unless this evidence of Sheo Dayal be an entire fabrication it bears additional testimony to the anxiety of the Maharajah to have his son accepted and treated as a Hindu. Hansraj Kunwar died in the Maharajah's life-time. Jang Bahadur performed all the obsequies proper to be performed according to the Hindu religion by a surviving Hindu husband. His father, in the year 1872, got him, then about 24 years of age, again married to another Hindu lady, a member of the same Chhattri caste, Raj Kali Kunwar, who survived him, and is the filth defendant in this suit. There was the same publicity and pomp as on the occasion of the first marriage, the same religious ceremonial. The Maharajah absented himself on this, as he did on the former occasion, and got his duties performed vicariously in the same way. The sole issue of this second marriage was a girl. Both she and Bhaiya Ganga Bakhsh Singh married members of the Chhattri caste. Sir Robert Finlay insists that the law for many centuries has been that a Hindu must be born, not made, and he cited several authorities in support of that proposition. On the other hand the treatises referred to by the Subordinate Judge Sir Monier Williams "Religious thought and life in India" Part I, page 57; Six Alfred Lyall'a "Asiatio Studies," pages 101, 104; W. J. Wilkin's appear to tend in an opposite direction, and the facts of this case show that in this matter of marriage the rules both of Hinduism and of caste were not, in this instance at all events, strictly applied. In the view their Lordships take it is unnecessary to express any opinion on the point. The matter for decision in this case being the construction of a codicil to the Maharaja's will, the point is not what is the strict rule of the Hindu religion, or the strict rule of the Chhattri caste, but this, namely, what were the wishes and intentions of the testator as revealed by the language of that instrument, viewed through the light of the circumstances which surrounded him at the time he made it.
29. It would be strange indeed if the man who had made it his special care to rear this son of his as a Hindu and had succeeded in marrying him to two high caste Hindu women, should intend or desire, whatever might be the strict letter of the law, to place the offspring of these unions on the same level as the illegitimate children of his son's Muhammadan mistress and make them all equally the objects of his bounty.
30. Much reliance was placed by the appellants upon the evidence of several witnesses, members of the Chhattri caste, which was directed to show that they would not eat with Jang Bahadur Singh, take betel leaves from him, or recognize him as a member of that caste, or of the Hindu religion, and it was contended that the Subordinate Judge had not paid sufficient attention to this evidence, or given it its due weight. He has no doubt not commented upon it at any great length, but it would be quite unreasonable because of this to conclude that he had not fully considered it. When the evidence is examined it will be found that the objection of many, if not most of these witnesses, to eat with Jang Bahadur or to give him betel leaves, &c, was due to the well-known and undisputed fact that he was the illegitimate son of & Muhammdan mistress, rather than to the fact that he was not a genuine Hindu. This is notably so in the case of the witnesses Kali Prasad and Jagdeo Singh.
31. The former said: "I did not eat with Jang Bahadur because he was Imam Bandi's son," and again: "I won't eat kachcha food £ touched by Ganga Bakhsh. I won't drink water from his hand because his grandmother was a Muhammadan;" and the latter said: "I cannot eat food cooked by Raj Kali Kunwar because she was Jang Bahadur's wife; "but he proceeded to say that he would have no objection to eat with Jang Bahadur Singh if the Maharaja had asked him to do so, and then he added the important statement; "Jang Bahadur had offended the Maharaja by keeping a Muhammadan woman, that woman had four sons, she lived with Bandi as Jang Bahadur's mistress for 12 or 13 years until her death." Babu Basudeo Lal, an educated man and an advocate, says : "Jang Bahadur took particular care to pet on the tilak more than a born Hindu would take because he was anxious to appear a Hindu; that from the orthodox point of view he (the witness) did not consider him a Hindu, trot he could not say he was a Muhammadan because he professed to be a Hindu," yet he gave not this fact but the fact that Jang Bahadur was of illegitimate birth as the reason for his unwillingness to take water from his bands.
32. Hanwant Singh gives remarkable evidence to the same effect. He said: "I consider Jang Bahadur a Hindu. He worshipped like a Hindu. He did pilgrimages like a Hindu. He gave dans to Brahmans like a Hindu. His ways were those of a Hindu. I saw him doing puja in the temple for the first time 30 years ago, and three times altogether I saw him feeding Brahmans at the temple." Yet despite what he saw, and his opinions on Jang Bahadur's religion, he says on the next page he would not eat with him because he was born of Imam Bandi, nor would he eat with Ganga Bakhsh, because presumably he was his father's son, though he admits that if the latter "persevered in his Hindu habita for two generations, he would be taken into the biradari."
33. These witnesses are fair specimens of those examined on their point. Their evidence might be of importance if it was necessary for their Lordships to determine whether or not the defendant no. 1 was the legitimate son and heir at law of Jang Bahadur, The Subordinate Judge has determined that question in the affirmative. Their Lordships concur with the Court of the Judicial Commissioner in thinking that it is not necessary to determine it one way or the other for the purposes of the decision of this appeal, and they therefore abstain from expressing any opinion upon it. What in of importance, when one has to construe this codicil, and determine what was the testator's intention in making it, is to ascertain in what light he regarded his son, the marriages he helped that son to contract, and the issue that sprung from them.
34. Their Lordships are of opinion that the reasonable conclusion to be drawn from the evidence is that the Maharajah treated this son of his as a Hindu in religion, and desired that others should m treat him; so that he treated his marriages with the two Chhattri ladies as lawful marriages and desired that others should so treat them, and consequently resolved to regard and treat the offspring of these unions as legitimate, and desired they should be so treated and regarded by others; and that it was in this frame of mind he made the testamentary disposition which is in dispute. It is lengthy, and in ita material parts run thus:
Whereas I have a son, named Jang Bahadur Singh, born of an unmarried Mahal, and whereas he is not born of Khas Mahal, and it is against the usage of the family and against religion according to the Hindu Shaatras, so he is not considered capable of gaddinashini and the proprietorship of the riasat. But he also being born of my loins, it is incumbent on me that snob means be provided for support as would enable him and his (aulad) issue to support themselves wail and with respect. Accordingly ever since the date of his birth till this day, whenever proper opportunity presented, grant was made for his support; and during ray life-time I shall make grants according' to ray will whenever I shall deemit expedient to do so. But with a view to dearly make a provision beforehand in order that there may not remain any co-ownership and dispute relating to a part or the whole of my movable and immovable property, a property should be determined for Jang Bahadur Singh and his (aulad) issue for generation after generation in order that the conditions of the deed may remain binding in perpetuity. Accordingly tie settlement is made as follows. It is this: Rs. 4,000 per annum or Rs. 48,000 per annum shall be continued to be paid by the proprietor of the riasat, the locum tenant at tire gaddinashm toe the tiros being; and that amount shall be paid to Jang Bahadur Singh and his (aulad) issue for generation after generation as long as the (khandan) family of Jang Bahadur Singh and his (aulad) issue remain in existence.
***Detail of Conditions.
" 1. He shall not directly or indirectly take part in running the riasat, and shall also remain a well wisher of the riasat.
"2. He shall not imitate? his maintenance allowance to a stranger by sale, mortgage or otherwise.
" 3. Foe his life-time Jang Bahadur Singh has a right to spend this money, but after his death from among his (aulad) issue one person (jisko haq pahunchta howe) to whom the right may go shall he considered proprietor of this maintenance allowance without division a as rais, The other issue of the family of Jang Bahadur Singh shall be entitled to get food, raiment and other necessaries out 0f the monthly allowance;
"4. When there remains no descendant of the family of Jang Bahadur Singh, at any time, the monthly allowance of Rs.4,000 will be resumed and remain in the proprietary possession of tho proprietor of the riasat, the gaddinashin.
"5. For the realisation of the monthly allowance, a few villages with jama and names of demarcated villages and hamlets are selected, and a list of the same is annexed to the document, The jama of the selected (tajwiz-shuda) villages will be credited from year to year towards the aforesaid fixed monthly allowance of Rs. 4,000. Neither has the proprietor of the riasat, (gaddinashin,) power 10 realize the jama of the selected villages yielding Rs. 48,000, including mat and sewai, from Jang Bahadur Singh or his decendants, nor is fang Bahadur Singh or his family decendants competent to demand the fixed monthly allowance of Rs 4,000 from the gaddmashin, the proprietor of the riatat.
"6. The jama of the selected villages, a copy of which is attached to the document, shall be deemed the jama, including mal and sewai in perpetuity. And the proprietor of the riasat for the time being shall have no power to increase or decrease the jama. And Jang Bahadur Singh and his family descendants shall raise no excuse as to increase or decrease of the jama. And the proprietor of the riasat shall have no power to cancel the lease And Jang Bahadur Singh and his family descendants shall have no proprietary right against the proprietor of the riasat, except that of deriving bonefit from the selected villages. Besides, Jang Bahadur Singh and his family desoendants shall have no power to transfer the immovable property by sale or mortgage or otherwise. But they shall continue in perpetuity to hold possession over the said villages, "7. The villages selected for payment of the monthly allowance shall have their boundaries maintained according to the map of had-o-bast kistwar. The proprietor of the riasat shall have no power to vary them contrary to it, nor shall Jang Bahadur Singh or his descendants have any."
35. Then follow the details of the villages leased out in perpetuity for the payment of the monthly allowance of Rs. 4,000. The testator then makes a bequest to Imam Bandi, the mother of Jang Bahadur, in the following words:
Besides, with a view to support the mother of Jang Bahadur Singh, I propose to fix Rs. 1,000 per mensem, or Rs. 12,000 a year for her-personal expenses. She that is the mother of Jang Bahadur Singh has power to spend the fixed allowance without interference by anybody else, and may, in her life-time; make a will in favour of anybody whom ate pleases, and in respect of any good work she likes, and it will be deemed liable to be acted upon. And for the purpose of realizing the aforesaid annuity of Rs. 12,000 a few villages, mentioned Mow, are given by way of theka with jama assessed thereon. The mousy will be realized from those villages from year to year.
36. He then gives a list of the villages out of which the Rs. 12,000 was to be collected, and proceeds to add:
Those few sentences have been put down to make provision for her support. while in the enjoyment of health and possession of the five senses, and out of my own pleasure and accord, in order that they may be of use after me.
37. The testator died on the 27th of May, 1882. In or about January, 1894, Jang Bahadur Singh became insane. He so continued for several years, and died on the 1st of October, 1899, leaving as his own the movable and immovable property mentioned in schedules B and C attached to the statement of claim. The first defendant, as already mentioned, immediately went into possession of the property mentioned in Schedule A and has since retained it.
37. Jang Bahadur Singh was created by the codicil ancestor or first proprietor of the estate, maintenance allowances somewhat resembling rent charges, were charged upon it. It was to be perpetual, impartible, indivisible, and incapable of being otherwise charged or encumbered, and it was not to be the subject of any co-ownership, On the death of Jang Bahadur a person, styled the representative of the former, was to succeed him as proprietor of this maintenance allowance, without "division" as a rais. This proprietor was to be one of the issue of Bahadur Singh, the other issue (aulad) of the family (khandan) of Jang Bahadur Singh being only entitled to get food and raiment out of the allowance. In addition the marriage and funeral expenses of the male and female children of the family of Jang Bahadur Singh were to be paid. The only indication given as to how the particular individual, one of the issue of Jang Bahadur, who was to succeed him as proprietor of the allowance was to be ascertained is that contained in the words "on whom the right may devolve." The testator must have had in mind some law or rule which would apply to fix the succession. What law could this high caste Hindu possibly have had in mind for such a purpose other than the Hindu law? That law, however, in the matter of succession to property, takes no account, in the three higher classes, of illegitimate descendants. Sir: Robert Finlay, as their Lordships understood, admitted this contention---at least to this extent, that if when a successor came to be ascertained the class of beneficiaries contained both legitimate and illegitimate members, the eldest legitimate male would by the Hindu Law succeed; but where, as in the present case, as he contended, all the children were illegitimate, the eldest male amongst them should succeed; but by what law or rule he did not indicate. It is difficult to suppose that if the testator intended all his grandchildren to be put upon the game level he would not have indicated some method by which the successor to his son should be selected. If he relied at all upon the Hindu law to select that successor it could only he because he wished it to be assumed that that law applied to some of the issue of his son, and that could only be the case if those members of the issue were to be taken to be legitimate.
38. At the date of this codicil Jang Bahadur was only about 30 years of age. He had already had one son by his deceased Chhattri wife. He had been married for some time to another Chhattri wife, by whom it was quite possible he might have had male issue, and it would have been quite in conflict with the whole tenor of the Maharajah's treatment of and conduct towards his son Jang Bahadur, to deprive by this codicil these marriages and the issue springing from them of the character and status he had striven to secure for them, The court of the Judicial Commissioner came to the conclusion that the Maharajah thought these marriages of his son were valid, and the issue of them legitimate. However that may be, it is clear, their Lordships think, upon the whole of the evidence that he wished them to be so regarded by others. Nothing would more surely have defeated that desire---than that he should by this testamentary instrument show that he himself regarded them in a wholly different light, and placed the children of these marriages on an equality with those of a Muhammadan concubine. The Maharajah has used the word "aulad" throughout this codicil to describe the issue of his son Jang Bahadur. The court of the Judicial Commissioner has laid it down that this word prima facie means legitimate Issue. This case is not one where a gift is made by will of the corpus of a fund, or a life interest in a fund to the "children" of the testator or of another as a class. There may be good reason in some such cases for holding that in India the word "children" includes illegitimate children, but here a succession of life interests from generation to generation is intended to be set up, the successor or "proprietor" in each instance being vested with absolute control of the income, subject only to the duty of maintaining the issue (aulad) of the family (khandan) of the first proprietor, Jang Bahadur Singh. These is nothing on the face of the will to suggest that a meaning should be given to the word "aulad" different from its prima facie meaning; but if it is to be read as including illegitimate issue, then it follows that the testator intended to bring into the line of succession not only his illegitimate grandchildren but their illegitimate issue from generation to generation. Such a construction would render rather unnecessary the provision (No. 4), that if no descendants of the family of Jang Bahadur remained, the monthly allowance should fall into the possession of the gaddinamshin, and would also seem to defeat the whole purpose and object of the testator in establishing this succession of life interests. Nor do their Lordships see any reason for. extending in this instance the meaning of the word "khandan" which ordinarily refers to the group of descendants who constitute the family of the progenitor, so as to include illegitimate offspring, who from the necessities of the case cannot share in the family life or its worship or ceremonials.
39. It has been strenuously urged by Sir Robert Finlay on behalf of the appellant, firstly, that there would have been nothing easier for the testator, if he desired to exclude his illegitimate grandchildren from all benefit under this codicil than to have said so. The question is, has he not done so by the use of the word "aulad." But even if this be not so, it was quite as easy for him to include them in the class described by the word, "issue"as to exclude them from it, so that the argument cuts both ways. And it was in the second place contended that having regard to his interest in these children, he never could have intended to leave them unprovided for. He undoubtedly did show some interest in them, but not a very keen interest, and it is by no means clear that he did not intend them to be provided for in the way they have been, in fact, provided for, namely, by being maintained by their grandmother Imam Bandi during her life, out of the income left to her by the codicil. He enabled her by the exercise of the testamentary power over this incomes conferred upon her so to provide for them after her death. The income was large, Rs. 1,000 per mensem. She was a woman who at the date of the codicil must have been at least 45 years of age, her son Jang Bahadur being then 30 years of age. The son's mistress and her children lwed with her. She, according to the evidence, helped to rear them. It was scarcely conceivable that she should require Rs. 12,000 per annum for her personal expenses alone. The power of disposing of this income by will clearly showed that the testator had some object in view beyond providing adequately for her maintenance. What more natural than that this income, handsome in amount, and disposable by her will, should have been given to enable her to provide for her grandchildren. Their Lordships are therefore of opinion that having regard to all the evidence in the case and the provisions of the codicil itself, the intention of the testator plainly was to treat the marriages of Jang Bahadur with the two Chhattri women already mentioned as valid marriages, and the issue of those marriages as legitimate issue. They think that the judgment appealed from was right, and that this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.
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(1) Was Jang Bahadur a Muhammadan and is succession to his estate governed by the Muhammadan law?
(2) Are the plaintiff and the defendants 2,3 and 4 Jang Bahadur's logitimate sons, and entitled to his estate under Muhammadan law, (Sunni School)?
(3) (a) Does the codicil of the 15th of March, 1878, entitle the plaintiff to succeed to Jang Bahadur's estate to the exclusion of his brothers (defendants 2 3 and 4) on the score of seniority in years? (b) Does the rule of primogeniture obtain in the family of the Maharaja of Balrampur? If so does the custom apply to the estate left by Jang Bahadur? (e) Is the plaintiff otherwise entitled to Jang Bahadur's estate to the exclusion of defendants 2, 3 and 4?
(4) Did Jang Bahadur live and die a Hindu, and is succession to his estate governed by the Mitakshara school of Hindu law? If so, is the defendant, 1 Jang Bahadur's legitimate son and sole heir?
(5) If the plaintiff and his brothers (defendants 2, 3 and 4) be the illegitimate sons of Jang Bahadur, and the defendant 1 (Ganga Bakhsh) his legitimate son, does the plaintiff possess the right of inheriting the whole estate by virtna of the codicil and custom put in issue in issue (3) or of Inheriting an equal share in the estate with defendant 1?
(6) If the plaintiff and defendnats 1,2,3 and 4 be all illegitimate song of Jang Bahadur, is the plaintiff entitled according to the codicil of the 15th of March, 1878, and the custom referred to in paragraph 13 of the plaint, to the whole of the property in suit, or is he entitled in the alternative to sharo Jang Bahadur's property equally with defendnats 1,2,3 and 4?
(7) If Jang Bahadur did not die either a Hindu or a Mohammadan what would be the rights of the parties in regard to succession to his estate?
(8) Did the defendant get the properties mentioned in list O attached to the plaitn on Jang Bahadur's death? What is their value?