estate is to be divided into five portions, of which the begot- The We modify the decree below, and award to the plaintiff one-fifth of the estate in issue as described by him, excepting that portion invested in the name of Venkatachalasvámi for charitable purposes, the claim to divide which has been disputed and has now been abandoned by the plaintiff. The first defendant is to pay all costs throughout. Appeal allowed. NOTE. See further as to the adopted son's share when a legitimate son is born after the adoption: Dattaka Chandrika, sec. V, §§ 16, 17: Dattaka Mímánsá, sec. V, § 40, sec. X,§ 1: Sutherland, Adoption, pp. 230, 242, 243: Dáya-bhága, chap. X, § 13: F. W. Macnaghten, Considerations on the Hindú Law, 120 1 W. H. Macnaghten, Principles and Precedents of Hindú Law, 70; Srinath Serma v. Radhakaunt 1 S. D. A. Rep. 15: Dutt Narain Singh v. Roghoobeer Singh ibid. 20: Morton ed. Montr. 394 n., 395 n. In Civil Petition No. 130 of 1862, heard 26th July 1862, in the late Madras Sadr Court, where A adopted B, and afterwards a son, C, was born to A, and B and C survived Â, and then C died, it was held by Strange and Phillips, J J., on reference to the Junior Pandit, that B inherited all the property of A. Ex relatione Mr. Mayne. The following is the hitherto unprinted passage from Sarasvati Vilása referred to in the judgment :-Vasishthena: tasmiñçca pratigrhît aurasa utpadyata [leg. utpadyeta?] caturthâñçabhâgî syâddattaka iti. Dattakagrahanam krîtakrtrimâdinâm pradarçanârtham putrîkaranaviçeshât. Tathâ ca Kâtyâyana: utpanne tvaurase putre caturthâñçabarâh sutâh.savarnâ asavarnâstu grâsâcchâdanabhâjanâ iti. Savarnâh kshetrajadattakâdayah: ta aurase sati caturthâñçaharâç caturthâñço nâma caturthasya yo'ñçah samatve parikalpyate tattulyo'ñçah pañçamâñça ityarthah: pançamâñçaharâ dattakrtrimâdisutâh punariti smrteh: punariti paçcâdutpanna aurasa ityarthah: asavarnâh kânînagûdhotpannasahodhapaunarbhavâh. Per Vasishtha :— "And when there has been an adoption, if a legitimate son be afterwards born, let the given son share a fourth part." The mention of a "given son" is intended for an indication of others also, as the son bought, the son made, and the rest, according to the difference of son-making. Accordingly Kátyáyana: "And when a legitimate son is "born, the [other] sons are takers of a fourth part, [provided they are] "of the same class, and those not of the same class are entitled to main"tenance." "Those of the same class," [i. e.] a son raised on a wife, a son given &c., share a fourth part, there being a legitimate son. A fourth part means a portion equal to one fourth of the share [of a legitimate son], that is to say, a fifth share, inasmuch as a smriti declares a son given, a son made &c., to be entitled to one-fifth share in the event of a legitimate son being born afterwards. "Those not of the same class" [i. e.] son of an unmarried girl, son of concealed birth, son of a pregnant bride, and on of a twice-married woman. The Reporter is informed by Professor Bühler that according to the Vyárahára Mayúkha some authorities, in the quotation from Kátyáyana, have "trtiyâmçaharâh sutâh." G 1862. November 1. R. A. No. 51 of 1861. 1862. November 1. S. A. No. 546 The right to conduct a marriage-procession along the public highway can only be questioned by the magistrate; and an action will lie against private persons forcibly stopping such a procession, even, semble, where it is unusual for persons of the plaintiff's caste to conduct one. THIS HIS was a special appeal against the decree of Srínivása of 1861. Appeal Suit No. 278 of 1859. The plaintiff, an artizan beloning to the goldsmith caste, sued for damages on account of the defendants having forcibly stopped a marriage-procession which he was conducting on the public highway. The defendants pleaded, by way of confession and avoidance, that it was not usual for people of the plaintiff's caste to pass along the road (which lay in front of the Padubidre pagoda) "in conveyance and with music," as was the case on the occasion which gave rise to the original suit. The District Munsif of Kapa adjudged the first and second defendants to pay the plaintiff rupees 47 on account of losses actually sustained, and all the defendants, with the exception of the third, tenth and eleventh, to pay him rupees 30 as personal damages for the obstruction. The latter sum was disallowed by the Additional Principal Şadr Amín, who held that persons of the plaintiff's caste had no right to institute such processions as that in question; and on this ground the plaintiff appealed specially. Branson for the appellant. The procession was legal, the road being a public one, and the obstruction by the defendants was unjustifiable. The Court delivered a written judgment, from which the following is an extract:- -We do not concur in the opinion of the Principal Sadr Amín that the procession was one which the plaintiff was unauthorized to institute. Being (a) Present Strange and Frere, J J. November 1. of 1861. conducted by him on the public highway, his right so to 1862. make use of the highway could only be questioned by the S. A. No. 546 magistrate, who, for preservation of the peace, might, if he saw sufficient grounds, interdict the procession. The defendants clearly had no such authority. We therefore reverse the decree of the Principal Sadr Amín and affirm that of the District Munsif, as against the first and second defendants, who will be held liable for all damages awarded to the plaintiff by the decree of the District Munsif. The Principal Şadr Amín has absolved the remaining defendants from liability, on the ground that they are not shown to have participated in the acts of the first and second. With this decision on a question of fact we are not called upon to interfere. The costs in appeal and special appeal are to be paid by the first and second defendants. + A father-in-law, although of the Reddi caste, cannot disinherit his heir in favour of his son-in-law. Special Appeal No. 89 of 1854, affirmed. HIS was a special appeal from the decree of T. I. P. THIS 1862. November 8. Harris, the Civil Judge of Trichinopoly, in Appeal Suit S. 4. No. 652 No. 53 of 1861, affirming a decree in favour of the plain-of 1861. tiff by the District Munsif of Tur'aiyúr. The plaint set forth that one Rámalingáchchi Reddi, having no male issue, and having given the plaintiff his only daughter in marriage, had, in accordance with the custom of his caste, executed a deed marked A on the 23rd Vaikási of Kródhí (13th June 1844), by which he conveyed all his property to the plaintiff ahsolutely that the plaintiff continued thenceforward to enjoy the property of Rámalingáchchi, and to protect him: that (a) Present Phillips and Frere, J J. November 8. of 1861. 1862. Rámalingáchchi died in A'vani of Chittártti (July 1859): S. A. No. 652 that within four days afterwards the defendants, (the first and third of whom were the brothers of the deceased, and the fourth claimed to be his paternal nephew and adopted son) forcibly took away certain jewels, cattle, corn and cotton, of the value of rupees 300, formerly belonging to Rámalingáchchi and comprised in the deed A; and that the suit was instituted to recover that property, and also to obtain a declaration of the plaintiff's right to a certain land valued at rupees 300 and to a 'house-ground' valued at rupees 165, which were also comprised in the same conveyance. The Branson for the appellant, the fourth defendant. fourth defendant is Ramalingachchi's nephew and heir: the deed A is invalid; and the alleged custom is not established or admitted: it is, moreover, illegal: Special Appeal No. 89 of 1859(a). Tirumaláchariyár for the respondent, the plaintiff. The Court delivered the following JUDGMENT:—The plaintiff laid claim to the estate of his father-in-law Rámalingáchchi Reddi, who died in 1859, under a deed executed by the latter in 1844, by which he conveyed his property to his son-in-law, the plaintiff. The fourth defendant, the paternal nephew of the deceased, resisted the plaintiff's claim, on the ground that he, the fourth defendant, had been adopted by the deceased, and was in possession of his property, as his legal heir and representative. The District Munsif was of opinion that the fourth defendant had failed to prove the adoption in question. He further observed that the plaintiff was allowed to be the son-in-law of the deceased, and that the fourth defendant had admitted the existence among persons of the Reddi (b) caste, of the practice of constituting a son-in-law heir to the property of his father-in-law. The District Munsif accordingly passed judgment in favour of the plaintiff, and this decision. was confirmed in appeal by the Civil Judge. (a) M. S. D. 1859, p. 250. (b) "The name of the principal caste of Telinga cultivators," Wilson's Glossary. The fourth defendant preferred a special appeal against this judgment. We are satisfied that the decree in this case, being at variance with known and fundamental rules of Hindú law, cannot be sustained. The admission said to have been made by the fourth defendant is no admission of the legality of the practice to which the lower courts have alluded; and that this custom has not the force of law has been expressly declared by the decree of the late Sadr Court in Special Appeal No. 89 of 1859, at page 250 of the published decrees for that year. We are of opinion that independent of the adoption pleaded by the fourth defendant, he is entitled to succeed to the property of his paternal uncle, in preference to the plaintiff, the son-in-law of the deceased, notwithstanding the conveyance in favour of the plaintiff. It has been urged by the counsel for the special respondent, the plaintiff, that the fourth defendant's father was divided from his brother, the plaintiff's father-in-law, and that the children of plaintiff by his wife, the daughter of the deceased Rámalingáchchi Reddi, are therefore the legal heirs to the property. This division is, however, denied by the fourth defendant, and the question was not tried in this case, which turned upon wholly different points. We therefore decline now to determine the case on these grounds. We accordingly reverse the decree of the Civil Judge, and dismiss the plaintiff's claim with all costs. Appeal allowed. 1862. November 8. S. A. No. 652 of 1861. |