It is unfortunate that this witness who would have been an important witness for defendants Nos. 4 to 11 was not examined earlier. She was ill when she was exainined-in-chief, and her examination was adjourned after a few sentences in cross-examination were recorded. She died before cross-examination could be resumed. There was considerable argument as to the admissibility of her evidence which it was not possible to test by cross-examination. I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can have little value. I need only refer to Taylor on Evidence, Section 1469 : Davies v. Otty (1865) 35 Beav. 208, Elias v. Griffith (1877) 46 L.J. Ch. 806, Man Gobinda Chowdhuri v. Shahindia Chandra Chowdhuri (1908) 35 Cal. 28, and Dhanu Ram Mahto v. Murli Mahto (1909) 36 Cal. 566. There is nothing in the Evidence Act which renders such evidence inadmissible. In Rosi v. Pillamma (1910) 20 M.L.J. 400 it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should not be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. I am not disposed to attach any weight to the evidence of this witness.
2. Ekoji's grandfather was Malloji, a Mahratta of the Bhonsle family, who distinguished himself under Jadava or Jadow Bow, a Mahratta Chief in the service of the Ahmednugger Government, and won the hand of his daughter Jiji Bai for his elder son Shahji. Shahji by his first wife Jiji Bai waa the father of the famous Sivaji who founded the Mahratta Empire in the Deccan in the 17th century, and by his second wife Tukka Bai, daughter of Mahratta parents with the surname of Mohitai, was the father of Ekoji, the founder of the Mahratta dynasty in Tanjore. When Shahji died from a fall in the hunting field, Ekoji performed his funeral rites and was confirmed by the Bijapur Government in the enjoyment of the fiefs of Bangalore and Tanjore. In 1677 the forces of Ekoji and those of his half brother Sivaji came into conflict but by a compromise the former was allowed to retain Tanjore. In 1680 Sivaji got Tanjore and other territories ceded to him by the Bijapur Government, but in the same year Sivaji died and Ekoji retained his-hold on Tanjore.
3. Ekoji died in 1686 or 1687 leaving 3 sons, Shahj'i II, Sarabhoji, and Tukkoji who each in tarn succeeded to the Raj. During the reign of the first named, there were two invasions led by general of the Moghul Emperor and considerable sums were levied from Tanjore as indemnity coupled with a promise to pay annual tribute to Delhi. After Tukkoji died in 1735, his legitimate son Baba reigned for about a year, and then was succeeded by his widow Sujana Bai whose regency only lasted for a short period. Two years after revolution followed. A pretender known as Savai Shaji or Katturaja which signifies in Tamil "Jungle King" usurped the throne with the aid of Muhamadan commander of the Fort named Said. The usurper was assassinated, and the principal men in the State assisted by Said "the King maker" first put Saiyajii the second legitimate son of Tnkkoji on the musnud and secondly Pnttap Singh, the son of Tukkoji by his sword wife Annapurni. Pratap Singh's first act was to have Said put to death. Ho ruled for 24 years and during his reign his forces canoe into conflict with the army of Mahomed Ali, the Nawab of Araot, and with the troops of the Bast India Company sent to aid the deposed Saiyaji, and with the French under Lally. In 1762 by the intervention of the British a treaty was concluded under whioh the Raja of Tanjore agreed to pay tribute to the Nawab at the rate of four lakhs of rupees annually. Pratapa Singh died in 1763 and was succeeded by his son Tulsaji. In 1771 and 1773 Tanjore territory was twice invaded by the British from Trichinopoly. On the second occasion the Fort was taken and the Raja and his family were made prisoners, but in 1776 under the orders of the Court of Directors he was restored to all his territories and became an ally of the British under a treaty by which he had to pay an annual subsidy of 14 lakhs of rupees and his State became a Protected State under the Company's Government. On Tulsaji's death without issue in 1787 his half brother Amar Singh, son of Pratapa Singh by a sword wife succeeded and con-eluded two treaties with the British in 1787 and 1792, but he was deposed in 1798 in favour of Serfoji, an adopted son of Tulsaji, whose tutor and guardian Mr. Swartz of the Danish Mission was able to satisfy the Court of Directors through a memorial presented to the Governor-General Lord Cornwallis that the verdict of the Pandits which had previously been pronounced against the adoption was erroneous in law and had been obtained by corrupt means.
4. In 1799 Serfoji resigned the government of the country into the hands of the Company, and Tanjore then became a British District with the exception of the Fort of Tanjore and some villages and lands which constituted his Mokhasa or private property and are the subject of the present litigation. In addition to these he agreed to receive 31/2 lakhs of rupees and 1/5th of the net revenues of the country while the Company took the other 4/5ths. In 1832 Serfoji died and was succeeded by his only son Sivaji, the last Rija of Tanjora. Sivaji married 3 daughters of his sisters. Two of these wives predeceased him. To the elder Rani Sydamba Bai were born two daughters Rajes Bai and Muktamba Bai who both in turn were married to the same man - Sakharam Saheb. The Raja's second wife Kamakshi Bai survived him and died in 1892. In 1852 in his desperate anxiety to get an heir, he married 17 women in two batches of 9 and 8 on one day (July 11th, 1852). When His Highness Maharaja Sivaji died On October 29th, 1855, he left 15 Ranis, two legitimate daughters, a mother, 60 women living in a seraglio called the Mangala Vilas, of whom 40 aspired to be called sword wives in distinction to the dancing girls who were ordinary concubines, and 17 natural children begotten by the Raja through sword wives, six of these children being males. There were also the remnants of Serfoji's seiaglio called the Kalyana Mahal. Upon the Resident, Mr. Forbes, reporting the death o the Raja and putting forward the claim of his younger daughter to be his successor and upon the Government expressing" a decided and unanimous opinion that there being no male heir there was no legitimata claimant to the Ra, the Court of Directors in a despatch of April 16th, 18th agreeing with the opinions of the Government of Madras and the Government of India, declared the dignity of Raja of Tanjore to be extinct and the Raj to have lapsed to the British Government, as the Raja died "without leaving a son by birth or adoption" and his father Serfoji was only an adopted son. On October 18th of the same year Mr. Forbes, in his new capacity of Commissioner, took possession of the Fort of Tanjore and the lands held by the late Raja or upon demise from him.
5. Thereafter Kamakshi Bai as senior surviving Rani filed a Bill on the Equity side of this Court against the East India Company and succeeded in obtaining a decree declaring her to be entitled to the estate of her deceased husband and declaring the Company to be trustees of the property taken possession of by their servants and directing an account to be furnished. The case went on appeal to the Privy Council (the Secretary of State in Council of India taking the place of the East India Company) and the Judicial Committee in The Secretary of State in Council of India v. Kamaehee Boye Sahaba (1859) 7 M.I.A. 476 reversed the above decision on the ground that the seizure of the property was an exercise of sovereign power effected at the aribitrary discretion of the Company by the aid of military force and that the act so done with its consequences was an act of State over which the Supreme Court of Madras had no jurisdiction. On the Plaintiff's Bill being thus dismissed, Sir Charles Trevelyan President of the Council, in spite of the opinion of the Judicial Committee to the contrary vide The Secretary of State in Council of India v. Kamaehee Boye Sahaba (1859) 7 M.I.A. 476, decided to treat the case as one of lapse by escheat, and to instruct the Madras Government to that effect. The Madras Government accordingly regarded the Raj as merges in the Government which had become the Raja's residuary heir discharging his obligations, and proceeded to work out a scale of pensions for the maintenance of the late Raja's dependants. The widows, backed by a large amount of public sympathy, did not sit quiet under this disposition of their fortunes. They enlisted the services of Mr. John Bruce Norton, then Government Pleader of the Supreme Court on leave, who drafted for them what is termed in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C. 424 a "forcible memorial" and himself proceeded to England in 1860 in order to rouss the British public to an appreciation of the injustice done by the act of confiscating the property of an independent Prince who had always been faithful to the British, and to induce Parliament to interfere in their favour and get the estate restored to the family. Mr. Norton's appeal evoked a remarkable response and on June 23rd, 1862, Colonel Durand, Secretary to the Government of India, announced Lord Canning's sanction to the relinquishment of the whole of the lands in favour of the heirs of the late Raja.
6. Since the plea in equity and policy for treating them as the private property of the Raja was so strong that it commanded the unanimous support of the members of the Madras Government."
7. On the 21st August 1862, an order of the Governor in Council was issued by the Madras Government declaring the manner in which this relinquishment was to be effected. By this time Rajes Bai, the elder daughter of Sivaji, had died on December 26th, 1856, and her husband Sakharam had married his deceased wife's sister Muktamba Bai, the Raja's second daughter, in February 1860. This all important order sets out that the Government having consulted the opinion of the two Pundits of the Sudder Court in order to ascertain what were the respective rights of the Raja's widows and of his daughter according to Hindu Law, concurred with the opinion of the Junior Pundit, which was in accordance with the principles of Hindu Law as expounded by the Sudder Court and the Privy Council, namely, that the senior widow was entitled to manage the property during her life-time being at the same time responsible for the maintenance of the other widows. The G.C. then proceeds to declare:
The Estate will therefore be made over to the senior widow who will have the management and control of the property, and it will be her duty to provide in a suitable manner for the participative enjoyment of the Estate in question by the other widows - her co-heirs. On the death of the last surviving widow, the daughter of the late Raja, or failing her, the next heirs of the late Raja, if any, will inherit the property.
8. This order was duly carried out by the officers of Government and the private personal property of the Raja was made over to the senior widow, Kamakshi Bai, but there was no restoration of the dignity of the Raj.
9. On July 1st, 1863, acting on the advice of Mr. Norton and in spite of the protests of other widows and of the Princess Muktamba Rai, Kamakshi Bai adopted Rajaram Ingle alias Serfoji, the late Raja's sister's grandson, whom the Raja was said to have designated for adoption when he found himself without a sou by any of his Ranis and who performed the Raja's obsequies and the obsequies of the Ranis. The Government of Madras, as advised by the Government Agent, when informed of the fact, took no official notice of it but directed the Government Agent to impress on Kamakshi Bai as senior widow her responsibility to the other widows and to the late Raja's daughter "who would inherit the whole property in the event of her surviving the widows." Kamakshi Bai, besides adopting Rajaram, transferred to him all the properties which she had got through the grant of August 21st, 1862, and enjoined the estate servants to take orders from him, styling him Sorfoji Maharaja. When, however, she and Rajaram memoralized the Governor of Madras and the Secretary of State to recognine the adoption, the former declared his intention of declining to hold any communication with any one but Kamakshi Hat on the subject of the estate and the family of the late Raja, and the latter while approving of the course adopted, observed "The validity of the alleged adoption by her as regards private property is a matter for the Civil Courts" The Government of India also declined to interfere with the orders passed by the Madras Government.
10. The next thing that happened was that two of the junior Rania filed a suit (Original Suit No. 16 of 1866) in the Civil Court of Tanjore against Kamakshi Bai and the adopted son for their shares of the movable property of their late husband and of the proceeds of the immovable property on the strength of a privato agreement and for a declaration that the adoption was invalid and for the appointment of a permanent Receiver to manage the property during Kamakshi Bai's lifetime. The Civil Judge (Mr. Davidson) refused the relief by way of a division of property but made an order for the appointment of a Receiver, while holding that the validity of the adoption of the fourteenth defendant had not been established and that the first defendant Kamakshi Bai was totally unfit to be entrusted with the management of the estate. He had previously in an order in Miscellaneous Proceedings held that the transfer of property from first to fourteenth defendant was ultra vires and not bona fide. From this decision the plaintiffs appealed, and Kamakshi Bid and Rajaram preferred a cross-appeal which was dismissed for non-payment of the Court fees.
11. The appeal was heard by Scotland, C.J., and Ellis, J., and is reported Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C.
n to doubt the correctness of this finding. The difficulty in arriving at a correct decision on this point is chiefly caused by the foot that Mahratta is the name of a nation, not of a case. Certainly not all Mahrattas are of Kshatriya caste. Kunbis, who belong to the cultivating caste, are also Mahrattas. Mr. Enthoven, I.C.S., in his "Tribes and. Castes of Bombay," Volume III, page 9, states:
The common belief in Maharastra regarding the origin of Mahrathas is that there is little or no difference, so far as caste is concerned between Mahrathas and Kunbis.".... "The Kunbis do not lay any pretensions to Kshatriya origin.
46. The author in another place says:
The line of demarcation between Mahrattas and Kunbis is not a hard and fast one;" but "they are differentiated rather by wealth and social status than by any hard and fast caste distinction. The claim of the Mahrathas to belong to the ancient 96 families of the Kshatriya race has no foundation in fact, but must have been advanced after they rose to power.
47. Compare also the Satara Gazetteer, pages 75 to 79, and the Kolhapur Gazetteer, pages 71 and 72. The tradition that Mahrattas have a Rajput origin and that they are Kshatriyas may have received credit in Rajputana owing to a natural desire of Rajputs to connect themselves with, a personality so famous as that of Sivaji the Great. There is no evidence that Kshatriyasbip was claimed before the time of Sivaji the Great. It is a matter of history that Sivaji paid four lakhs of rupees to Gaga Boat, a Brahmin of Benares, in order to have his upanayanam (thread marriage) performed when he was 47 years of age, and to be raised to the rank of a Kshatriya at the time of his coronation. In the Kolhapur Gazetteer, page 72, it is stated that the descendants of Sivaji. claim to belong to the Kshatriya caste and say that their ceremonies are the same as those of Brahmins. The author proceeds:
Brahmins admit this claim in the case of the ruling family and perform their ceremonies with Vedic texts. The ceremonies of other Kolhapur Mahratta families are performed according to the Sudra Kamalakara, a classical Sanskrit version of the Vedic passages. The well-to-do among the Kolhapur Mahrattas claim to perform the sixteen Brahmin sacraments or Sanskars, but the bulk of the people perform no ceremonies except at birth, thread girding, marriage, coining of age, and death.
48. Sivaji from dynastic reasons had a necessity to put forward a claim to the highest rank in order to found a Hindu Kingdom and to arouse Hindu national sentiments capable of withstanding the encroaching spread of the Moghul Empire. It is natural for that reason that no Hindu should wish to challenge his claim to Kshatriya rank at the time of his coronation. There is, however, no evidence of any coronation ceremony with Brahminical rites having been performed, when any of the rulers in the Tanjore branch ascended the musnad. It is unnecessary for the purpose of this case that we should make any pronouncement as to the right of Sivaji and his descendants to olaim that they belong to the Kshatriya caste, though it is a matter of great moment to the direct descendants from Sivaji such as the Maharaja of Kolhapur, who is the fifteenth defendant, and to the fourteenth and twenty-fourth defendants, who represent the Satara and Jinti branches, that they should not be degraded by a judicial decision to which they are parties. Whether it is more correct to adopt the view of Mr. Justice Telang in his essay called "Gleanings from Mahratha chronicles" embodied in Mr. Justice Hanade's "Rise of the Mahratha Power" at page 288 where ho says : "Taking the whole evidence together, it looks like a case of a more or less deliberate manipulation of facts and religious rules, in aid of a foregone conclusion adopted for a purely political purpose," whether we believe the story given in J. Sarkar's "Shivaji," pages 240-246, that Shivaji underwent a public purification for having omitted to observe Kshatriya rites BO long and that fiere was a meeting among the assembled Brahmins who asserted that there was no true Kshatriya in the Kali ago when Gaga Bhat attempted to initiate Sivaji wish Vedie mantras and that he finally yielded to opposition and initiated him in a modified form of the life of the twice-born, or whether we should rather adopt the view of Mr. Ben in his recent book called Siva Ghhatrapati, published while these appeals were awaiting a hearing, that the argument that there were many Sudra kings without any knowledge of Kshatriya rites, though urged for the space of a year and a half, had no effect on Gaga Bhat but that he was finally prevailed upon to crown Sivaji by the plea that ho was kind to his subjects, and maintained the true religion (pages 241-242), or whether the version given in Subasat's Bakar, page 114, that Gaga Bhat was satisfied by means of an emissary sent to Rajputana that Sivaji's ancestors came from Kshatriya families and that he was a Suddha (proper) Kshatriya is correct, it is unnecessary to express any opinion on this much vexed question whether Sivaji represented a fallen Kshatriya restored after penance or a good Sudra king elevated to Kshatriya rank by bribing the Brahmins, upon which historians have been at controversy, for two reasons - firstly because, as suming that Sivaji and his descendants are Kshatriyas, it does not follow that Ekoji, his half-brother, who did not go through the ceremonies of purification and coronation, as Sivaji did, and his descendants are anything more than Sudras, seeing that the two brothers separated before the date of Sivaji's coronation; and secondly because, if my finding is correct that Pratapa Singh was illegitimate owing to his mother not having been married to Tukkoji in any authorized form of marriage, the agnates in the Kolhapur, Satara and Jinti branches can have no claim to succeed to the property of the late Raja of Tanjore.
49. Now, turning to the evidence available in the Tanjore branch, and accepting the principle that the consciousness of a community is a good test of Varna, we may see if this branch's claim to Kshatriya origin has satisfied the test. Maloji was a Mahratta of the Bhonsle family; Ekoji's mother was a Mohitai. Mr. Bartle Frere, who was the Resident of Satara in 1848, in his narrative of the early history of the Bhonsles of Satara, says:
The Bhonsles, like most of the old Mahratta families, had pretensions to a Rajput origin.
50. He adds;
the Bhonsles of Deoor near Satara who are said originally to have come from Hingunburdee near Poona and from whom the Rajas of Nagpore are descended, are generally supposed to have been connected with the Satara House but the relationship has never been established.
51. There is no evidence that the Bhonsles had a Kshatriya origin beyond the temple inscription which mentions Bhonsle, Mohitai, Nimbalkar, Ghantake and Jadav and other names familiar in the history of Shahji's parents among the 96 Sannavaguli branches descended from Rama, and the similarity of the names - Yadava, Rajput, Jadav (Shahjis wife was the daughter of Jadava Rao - vide Kincaid, Vol. I., page 116) and between "Bhonsle," Bhonsle, Sissode, and Bhosavat a village in Udaipur (vide Kincaid, page 113, foot note, and Sen's Siva Chhatrapati, Notes and Appendices, page 260, as to the three possible derivations of the word Bhonsle).
52. Again the Mahratta family name of Power hag been attempted to be identified with Puar (vide Malcolm's Memoir of Central India, Vol. I, page 99, in his chapter on the Puars of Dhar and Vol. II, pages 125 and
126.) Such conjectural evidence may satisfy the historian, the ethnologist, or the philologist, but will not do for a Court of law which looks for strict proof of the pedigree of an individual or the lineage of a particular family. An individual in England who laid claim to be descended from royalty would not advance his case far by merely showing that his mother's maiden name happened to be King. Mr. Ketkar in his History of Caste in India, Vol. I, sit page 65, speaks of Yavanas or Greeks, which were mentioned by Marat as a warrior tribe, which became Budras by not corsulting the Brahmanas.
53. Kamakshi Bai made two very significant admissions during her lifetime. The first was when she brought her Bill in Equity for the recovery of the Tanjore estate and the said that her husband was a Mahralta of the Sudra caste and the fact was accepted by Rawlinson; C.J., who observed in his judgment in The Secretary of State in Council of India v. Kamachee Baye Sahaba (1859) 7 M.I.A. 476, that the Raja was "a Hindoo of the Soodra caste." Although the other widows who were parties to the suit may not have been interested in opposing Kamakshi Bai's statement of fact that the Raja was a Sudra, it is likely that the East India Company as defendant would have raised the defence that the Plaintiffs were Dwijas if they had thought that the Bill could be defeated on that ground. There is nothing to indicate that such an objection to Kamakshi Bai's Bill was ever thought of then. In those days pleadings were drawn up with much preciseness, and, in claiming the property of a deceased man, it may have been thought necessary that the widow should describe him very fully, name, age, caste, etc. Interrogatories were served on every point asserted in the plaint, as it was not a statutory rule in those days as it is now under Order VIII, Rule 5, Civil Procedure Code, that every allegation of fact not specifically denied in the written statement was to be taken as admitted. The explanation now offered that Kamakshi Bai, being the sister's daughter of her husband, was in danger of having her marriage declared void if she claimed to be a twice born is not a convincing explanation. The natural tendency of human-beings is to claim a higher caste or status rather than a lower one ; so that the statement of Kamakshi Bai that Sivaji was a Sudra is all the more remarkable, if ho was really a Kshatriya. It appears to be an honest statement of the truth. Then, in reporting the adoption of Rajaram, Kamakshi Bai stated:
Although there are no mere formalities such as Datta Homam required to be performed for common classes under the prescribed rules of Hindu Law, yet, as from the days of the late Serfoji Maharaja, we do observe the same rules as are prescribed for higher classes.
54. This is a remarkable admission that, though they belonged to a family of Sudras, they had been acting Kshatriyas by performing the ceremonies prescribed for higher classes since the days of Serfoji. The motive for this incorrect statement, assuming it to be incorrect, is suggested to be that Kamakshi Bai wished to get over the objection of the other widows that Datta Homam had not been done for the adopted son at the death-bed of his adoptive father. Mr. Norton may have thought that if the claim of the adopted son was put forward when Datta Homam had not been done and if he styled himself as a Kshatriya, the claim might fail. I think that this explanation is too far fetched.
55 Then, in a suit to establish an adoption, the Civil Judge, Mr. Davidson, recorded a judicial finding that the Tanjore Royal family belonged to the Sudra caste "beyond all shadow of doubt" The parties were relations to the Tanjore royal family and the Court that tried the case had not the evidence before it which we have in the present ease. The decision is relevant as an instance in which the caste of the family received judicial notice, though it is not binding on the present parties as res judicata.
56. In the Bombay Presidency a suit was tried in which the parties were Nimbalkars and Soorves connected by marriage with the Tanjore branch. The Subordinate Judge found the parties to be Sudras; the Assistant Judge reversed his finding and found that they were Kshatriyas. The case came up in Second Appeal to the High Court of Bombay. The suit was in the end dismissed. The judgment in which it was found that the parties were Sudras has not been produced. The finding that Mahrattas were Kshatriyas was arrived at without any active contention. The plaintiff was not willing to succeed on a finding that he was a Sudra. As pieces of evidence these judgments are inconclusive.
57. The description of the relations of the Tanjore Raja's family of themselves as Kshatriyas, in sales, mortgages and other documents of title does not carry much weight. There seems to have been a division of opinion among the community; probably those who asserted that they were Sudras and those who claimed to be Kshatriyas, each acted from personal motives in order to get some advantage for themselves. One of these instances is a suit by a reversioner belonging to the Tiruvadamarudur branch to recover property in which the plaintiff admitted that he did not belong to the Kshatriya caste. The judgment is useful in another connection as containing a finding on the validity of the form of sword marriage, by which Ridha Bai was united to Pratapa Singh.
58. As regards the inclusion of Bhonsle and other Mahratta family names, with which the Tanjore family was connected, among the 96 Sannavagulis mentioned in the inscription, it is conceded that these names are borne also by families who are admittedly Kunbis. Mr. Risley in his "People of India," pages 87 and 88, observes:
The highest class of Mahrattas is supposed to consist of ninety-six families, who profess to be of Rajput descent and to represent the Kshatriyas of the traditional system. But their claim to kinship with the Rajput is effectually refuted by the anthropometric data now published and by the survival among them of Kuldevaks or totems... A wealthy Kunbi, however, occasionally gains promotion to and marries into the higher grade and claims brevet rank as a Kshatriya. The fact seems to be that the ninety-six superior families represent Kunbis who came to the front during the decline of the Moghul Empire, won for themselves princedoms or estates, claimed the rank of landed gentry, and asserted their dignity by refusing their daughters to their less distinguished brethren.
59. In fact, the case of those who maintain that this family is a Kshatriya family has not been consistent throughout. They began by claiming that all Mahrattas were Kshatriyas. This was obviously untenable as it is notorious that there are Mahratta Brahmins and Mahratta Sudras. Then some witnesses said that all the Sannavagulis were Kshatriyas. This also failed because it is impossible to ascertain who the Sannavagulis are. There are among them Kunbis, who are admittedly Sudras with house names such as those borne by Mahrattas, who emulate Kshatriyas. Some belonging to this inferior class of Sannavagulis were found to be living in Tanjore. Lastly, some witnesses said that only Vajaratmas (or relations of the Raja) were Kshatriyas. But for this final position the rigidity of a caste is wanting and the evidence is insufficient. Russell in his "Tribes and Castes of the Central Provinces of India, Volume IV, page 200, says:
In Satara the Kunbis have the same, division into 96 clans as the Mahrattas have, and many of the same surnames.
60. He identifies the Mahrattas with Mahars from which he thinks the country came to be called Maharashtra [vide page 199] and the Rashtrakutas he conjectures to be Rathor Rajputs. In A.D. 600 a Chinese traveller called Hiuen Tsang found a Kshatriya king called Pulakesi reigning Maharashtra [vide Kincaid, Vol. I, page 21.] But this Pulakesi was a Chalukya who conquered the country from its native rulers, the Rashtrakutas. Mahrattas are not proved to be descendants of Chalukyas. It has been suggested that they were descendants of Rashtrakutas, but all Rashtrakutas have not been proved to have been Kshatriyas. The Chalukyas were in their turn conquered by the Yadavas, whose chief Billama was crowned at Devagiri. Davagiri is another name for Daulatabad, which is far remote from Deo near Poona which is said to be the home of the B Bonsles.
61. If we examine the claim of the Tanjore family to be Kshatriyas from the point of view of the ceremonial performances which they followed, their claim equally fails. The chief distinguishing mark of the twice born is the upanayanam or thread-wearing ceremony. There is evidence that some of the members of this family put on poonul or thread, but there is very little evidence that before doing so they went through the ceremony of upanayanam. 105th defence witness a purohit from Tiruvadamarudur, was only able to mention two upanayanam ceremonies and he admitted that some of the Mahrattas have married without upanayanam being performed. He wished to have it believed that when marriages of the royal kinsmen were performed, they were accompanied with vedie rites, but that only puranic rites were observed when other Mahrattas were married. The Subordinate Judge has found that there is no uniformity of practice as regards the wearing of the poonul but that one thing is certain and that k that it was not worn as ordained. Again in the matter of pindams the Subordinate Judge has shown conclusively from the evidence that flour pindams were used for funerals in this family, and it appears from the evidence of the forty-sixth defence witness that homam was not done in this family at shradhs. There is no satisfactory evidence as to the gayatri mantram being recited it appears from para that Serfoji after his return from Benares when he was over fifty years of age introduced the innovation of thread wearing into this family and that he compelled certain important person priests and others to sign a statement such as the one signed by Balambat Bhat Goswami that he was a Kshatriya, and that he had the homam done and vedic mantrams chanted. The omission to go through the ceremony of upanayanam cannot be explained by 01 fang the instance of Rajputs who are not always careful to have it performed when their sons are between ten and twelve, it is not the lateness of the age when the ceremony is performed that is so striking as the dearth of evidence that it performed at all. Although Sivaji did penance and was allowed to undergo upanayaram when he was 47 years old, we do not hear of his brothers Sambaji or Ekoji performing it at any time. Nor is there any record of Sahu his grandson, who was a prisoner at Delhi, having gone through the ceremony. At Tanjore we do not hear of it before Sarfoji's time.
62. Then there is proof that Sudra cooks were employed at the Tanjore palace. Two of the cooks, defence seventy-eighth witness who is a Kallar and defence eighty-second witness, a Brahmin, have proved this fact. It is true that there wore Brahmin cooks also, but if the family was really a Kshatriya one, there would have been no need of Sudra cooks at all' One of the widows of the late Raja, Rani Ramakurmuamba Bai Saheba, was examined as a witness in Original Suit NO. 400 of 1907 m the Tanjore District Munsifs Court and she described herself then as a Mahratta Sudra. The deposition was recorded on commission in 1908 by Vamana Rao who was the Sirkele of the Palace department of the Collector's office and it is in the handwriting of Vamana Rao who according to defence 102nd wit ness, was the person who made the blue ink entries in the pedigree which show Fratapa Singh and Jaya Singh as sons of sword wives. As the description sword wives occurs in the original, there is no le reason to suspect Vamana Rao's. conduct, t in describing the Rani as a Mahratta is Sudra; he may have formed his own opinion that all the Tanjore Ranis were Sudras or he may have adopted the description given by the Rani herself. The it ninety-fourth defence witness says that as he was present at the time and that the deposition was read over to the Rani and g that she signed it. He also adds in cross-d examination that she was questioned about her husband's caste and that she mentioned e it first as Mahratta and then as Mahratta Sudra. In the settlement deed executed s in 1907 both this Rani Ramakurnararnba Bai and this witness before the Registration officer described themselves as Kahatriyas and the Rani is so described in the body of the document. Thus the probative effect of the description as to caste in the deposition is inconsiderable.
63. As regards the genealogy of this family, Tod in "Annals and Antiquities of Rajasthan," page 288, has given the genealogy of Sivaji. His ancestors are stated in the note to be Sambaji, Suttoji, Junkoji, Khailooji, Mahoolji, Oogarsen, Deoraj, Bhoraji, Seoji, Duleepji, Sujunsi and Ajeysi. Ajeysi was a Rana of Me war. According to Tod, Sujunsi was expelled from the country and became the founder of the Satara throne. Waring's History of the Mahrattas written in 1810 contains a statement at page 55 that "Shajee, the father of Sevajee, was an illegitimate descendant from the Rana of Oodaipoor, a prince of the highest rank among the Hindus" but he adds at page 57 that Jadoo Rao considered Shajee to be a wretched Kunbi. Kincaid in Volume I, page 112, says that Devrajji, one of the family of Udaipur, after a quarrel with the Rana of Udaipur, fled to the Deccan. His other name was Kakaji. Mr. Kincaid mentions another story that two brothers Khelkarnaji or Kheloji and Malkarnaji or Maloji came together from Udaipur to offer their services as free lances to the king of Ahmednugger, and that one of them died in battle and the other one was drowned. The latter left a son Babaji who purchased the patilki or headship of the village of Verul near Daulatabad and one of Babaji's sons was Maloji, the grandfather of Sivaji. These various versions do not agree with the pedigree prefixed to the lower Court's judgment nor with the inscription in the Tanjore temple. They are mutually destructive, the names differ and can only be reconciled on the hypothesis that some of them were aliases, and there is no proper explanation how a section of a Rajput house came to found a dynasty so far south. On the whole it must be said that historically, genealogically, geographically, socially and ceremonially, the claim of this family to be classed as Kshatriyas has failed and the lower Court's finding on this point must be confirmed.
64. In Choaturya Ram Murdun Syn v. Sahub Purhulad Syn (1857) 7 M.I.A. 18, it has been established by the judgment of the Privy Council that Kshatriyas still exist in India. The theory put forward in the Sudra Kamalakaram mentioned by Steele in his "Law and Customs of Hindu Caste" (1868), page 89, that Parasurama destroyed all the Kshatriyas and that they no longer exist, a theory said to have been started by a Brahmin conspiracy which Sir Thomas Strange in his Hindu Law, Vol. II, Appendix to Chapter IV, refers to, cannot be maintained in the face of the above decision : but in Muthusami Mudaliar v. Masilamam (1910) 33 Mad. 342, Sankaran Nayar, J., observed that there was a presumption that all castes who were not proved to be twice born and who were not admitted to be untouchables were Sudras. This judgment, which treats of the evolution of Hindu castes by occupation, migration and intermarriage, considers the criteria according to which new castes which have been evolved among the descendants of Hindus are to be considered as having retained the Hindu religion, and observes that the formation of new castes is a process which is constantly going on, has received the approval of the Privy Council in Ma Yait v. Maung Chit Maung A.I.R. 1922 P.C. 197, and it has been followed in Soundararajan v. Arunachalam Chetty (1916) 39 Mad. 136 by Sadasiva Aiyar, J. The onus being on those who assert that they are Kshatriyas to establish their claim, when they fail, the only course open to the Court is to treat them as Sudras.
65. The next question I shall deal with is the adoption of the father of defendants Nos. 1 and 2 and its validity. The adoption of Rajaram Ingle by Kamakshi Bai on 1st July 1863 was reported to the Government of Madras in a letter dated July 2nd addressed to Sir William Thoma-Denison, Governor of Port Saint George. The factum of adoption is not now denieds Objections are raised to its validity on be half of the fifteenth defendant on three grounds: (1) that the Raja did not authorize the adoption, (2) that it was made from an improper motive and (3) that the widow lost her power to adopt owing to the escheat of the property to Government. On behalf of defendants Nos. 4 to 11 further objections have been advanced:
(1) that the Tanjore family is governed by Mitakshara Law which they adopted after they settled in Tanjore;
(2) that the existence of inferior sons is a bar to the adoption; and
(3) that the adopted son's rights, if any, are barred by limitation.
66. It is settled on the authority of the Privy Council in Yadao v. Namdeo A.I.R. 1922 P.C. 216, that a widow in Bombay Presidency may adopt a son even without the authority of her husband or kinsmen provided that her husband has not prohibited it and provided that she does the act from spiritual motives. Again it is settled by another Privy Council decision in Balwant Rao v. Baji Rao A.I.R. 1921 P.C. 59, that the personal law of a migrating family will govern them in their new domicile if it was the personal law at the time of migration and provided that they have not renounced the law of the province from which they have migrated. Their Lordships approved of the decision in Vasudevan v. The Secretary of State for India (1888) 11 Mad. 157, to the same effect. But it is contended in the present case that at the time of the migration of this family to Tanjore about 1674 the law that a widow can adopt without the authority of her husband was not the law as expounded in Bombav. It is also contended that Kamakshi Bai acted from the bad motive of spiting the co-widows and depriving them of their shares. As to the first contention, the Mayukha was written by Nilakanta who was born about 1600 A.D. and lived in the first part of the 17th century. His work came into use by about 1700. In 1866 it was decided by the Bombay High Court in Baydbai v. Bala Venkatesh Ramakant (1866) 7 B.H.C.A. 1, that a Hindu widow in the Mahratta country could not adopt if her husband in his life-time had forbidden it. This case has come in for much criticism by the Judicial Committee in Yadao v. Namdeo A.I.R. 1922 P.C. 216, and the judgment of Westropp, J., has been critically examined. There was a later case decided in 1868 but reported earlier in Rakhmabai v. Radhabai (1868) 5 B.H.C.A.C. 181. In this the learned Judges accept the opinion of certain Pandits and Shastris to the effect that a woman can adopt in Bombay without the injunction of her husband; and in summing up at page 191 they do not make the consent of the kindred a sine qua non. At page 187, line 14, the learned Judges say that a widow ought to obtain the consent of the caste (gnatis) and that this corresponds with the custom of the country. In Yadao v. Namdeo A.I.R. 1922 P.C. 216, the Privy Council point out that this decision was based not merely on the custom of the country but also on the authorities prevailing in the Bombay Presidency. Ramji v. Ghamau (1882) 6 Bom. 498 (F.B.), is only an authority for the proposition that a widow of a coparcener has no power to adopt in an undivided family without the authority of her husband or the consent of the other undivided co-parceners. Yadao v. Namdeo A.I.R. 1922 P.C. 216, which was decided in 1921, has carried the widow's power to adopt in Bombay farther than it was carried by the same learned tribunal in the Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397, where it was only decided that the adoption with the assent of the kindred (gnati) was the law of the Mayukha. The law of adoption as it prevails in Bombay is not, however, dependent only on the authority of the Mayukha. There is also the Samskara Kaustubha and the Nirnaya Sindu which came into use about 1611. In Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397, the Mayukha and the Kaustubha are referred to as peculiarly Mahratta treatises, and a Full Bench of the Bombay High Court have also referred to the Kaustubha in Bhagirthibai v. Kahnajirav (1887) 11 Bom. 285 (F.B.). In Second Appeal No. 404 of 1885, the Bombay High Court observed that, though adoption in the Bombay Presidency is in a great measure governed by the Vyavahara Mayukha, yet the Kaustubha has great authority on this particular subject. In Rakhmabai v. Radhabai (1868) 5 B.H.C.A.C. 181, the Vyavahara Kaustubha is referred to for the purpose of understanding the Mayukha. The Nirnaya Sindu is also an authority to be considered, and also Kamalakara Bhatta's Dharma Sindhu.
67. The established law of Bombay as expounded by the Privy Council on the strength of all these authorities is that in that Presidency a widow can adopt even without being authorized by her husband or his kinsmen provided that he has not prohibited it. These law books only reproduce the pre-existing custom of the country. They do not enact a new law. It has not been shown that the law was in any way different before the time when this family migrated to Tanjore than it was held to be in later decisions of the Bombay High Court and the Privy Council. The Vyavahara Mayukha did not introduce a new law of its own but only declared the law prevailing even before it was written.
68. As to the next objection, there is no doubt that Kamakshi Bai acted in opposition to the other widows in the matter of the adoption and in some other instances, but the objection that she was actuated by improper motives may be answered in the manner that a similar objection was answered by a Full Bench in Ramchandra v. Mulji Nanabhai (1898) 22 Bom. 558 (F.B.), viz., by the observation that if the act can be referred to proper religious motives, the Court ought to presume that she was influenced by religious motives and not by mere caprice. There is no doubt that the Raja had expressed a desire for the continuance of his lineage.
69. As for the third objection, it has been laid down by the Privy Council in Pratabsingh Shivsingh v. Agarsingji Rajasangji (1919) 43 Bom. 778, that a widow may exercise the power of adoption so long as it is not extinguished or exhausted even though the property is not vested in her unless there is some time limit fixed by the power which is given to her to adopt. So even if there was an escheat, she may adopt for spiritual purposes; but the Privy Council has stated in The Secretary of State in Council of India v. Kamachee Baye Sahaba (1859) 7 M.I.A. 476, that there was no escheat. The annexation of the Raja's property was not on the date of the Kaja's death and there was nothing to prevent the Government, in dealing with the property as absolute owners, by sovereign right, from either making an original grant or restoring the property to those entitled to it by right of succession. If the widow had adopted after the Raja died and before the Best India Company intervened, the adoption would not have been invalidated by the subsequent act of usurpation. The act of usurpation did not cause a legal title to vest in the Government. This was made clear in the Privy Council decision. The suit was dismissed simply because the Municipal Courts could not question the act of the State. The Government when they restored the property put a restriction on the power of the widows to divest the estate, and the widows and the daughter were designated as persons who should take the estate first. Government had power to impose any kind of conditions as they pleased. They could have imposed a condition that the widow should not adopt, but they did not do so. The effect of the grant was only to postpone the rights of all heirs other than the widows and the daughter. The cases which have been cited to us Mussumat Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279, Padmakumari Debi Chowdhrani v. Court of Wards (1882) 8 Cal. 302, Thayammal v. Venkatarama (1887) 10 Mad. 205, Taracharan Chathrji v. Stireshchunder Mukerji (1890) 17 Cal. 122, Krishnarav Hasabnis (1893) 17 Bom. 164, Ramkrishna v. Shamrao (1902) 26 Bom. 526, Vasudev v. Ramachandra (1898) 26 Bom. 56 (F.B.), Annammih v. Mabbu Bali Reddy (1875) 8 M.H.C. 108, Datto Govind v. Pandurang Vinayak (1908) 32 Bom. 499, Dattatraya Bhimrao v. Gangahai A.I.R. 1922 Bom. 347, Yeknath Narayan v. Laxmibai A.I.R. 1922 Bom. 347, and Shri Dharnidar v. Cinto (1896) 20 Bom. 250, are all cases in which the widow's power of adopting came to an end owing to the estate vesting in some other full owner. See also Tripuramba v. Venkataratnam A.I.R. 1923 Mad. 517, which distinguishes Madam Mohana Deo v. Pumshottama Deo A.I.R. 1918 P.C. 74. The legal title never vested in Government after the annexation. Though previously the ownership was vested in a person who was not a subject of the Government, by the declaration of Government he became a subject with retrospective effect. The allegation that the family adopted the Mitakshara Law after they settled in Tanjore has not been substantiated. In several legal proceedings they quoted the Mayukha law as being that applicable to the family. In 1904, Rama Bai who was the senior widow after the death of the adopted son brought a suit to establish her right to the properties and it was then held that she and the remaining widows carried their personal Mayukha Law with them. In Rama Bai Ammani v. Rajah Sahib (1920) 12 L.W. 171, this Court noted the cirumstance that the Mayukhi law was that which the Subordinate Judge had found to be the personal law of this family which migrated from Poona. Although the family appears to have employed Telugu purohits at funerals and to have adopted some practices of South India, and they appear to have worshipped Mari Amman, and other South Indian deities, they preserved many of their own habits, like Sunmukt which are peculiar to the Mahrattas. There is evidence that the Telugu purohit was acting under the supervision of the western purohit named Bhat Goswami (see the evidence of D.W. 91). (The mere employment of local priests under the supervision of family priests is not sufficient to show that the local law his applicable to a migrating family; Huro Pershad Roy Chowdhry v. Shibo Shunduree Chowdhrani (1870) 13 W.R. 47, and Murk Dos v. Manicka Chetti (1897) 5 M.L.T. 181. Even if it be held that this family was governed by the Mitakshara Law I should be prepared to find that the authority given by the Baja's mother, Avu Saheba, amounted to the consent of a kinsman which the Mitakshara Law requires vide the Collector of Madura v. Moottoo Ramalinga, Sathupathy (1868) 12 M.I.A.
397.
70. The Subordinate Judge has rightly held that the adoption in the present case was not barred by the existence of the children of sword wives. The right of the sword wives' sons to take the shares of legitimate sons in the property and their power to invalidate the adoption stand on the same footing. If sword marriage is a valid form of marriage for one purpose, it is good for the other purpose also. But not so, if they are only entitled to take shares of illegitimate sons of a Sudra. The existence of illegitimate sons is not a bar to the spiritual benefit which is attained by the adoption of a legal son. There is no decided case which may serve as an authority for the view that an adoption is illegal when the adoptive father has sons by a sword wife.
71. The last objection is that of limitation. It is argued that by Act IX of 1871, which provided a 12 years' period of limitation to establish an adoption, the adopted son's rights became barred in 1875 and that it was obligatory to establish his rights within the period prescribed by article 129 of that Act, which gives 12 years from the date of the adoption after the death of the adoption father. If the right became barred under the Act of 1871, it could not be received by the later Act of 1877 which split article 129 "to establish or sat aside an adoption" into two articles, 118 "to obtain a declaration that an adoption is invalid when the alleged adoption becomes known to the plaintiff," and 119 "to obtain a declaration when the rights are interfered with." In all the cases cited to us, viz., Jagdamba Chaodharani v. Dakhina Mohun Ray Chaodhri (1886) 13 Cal. 308, Mohesh Narain Munshi v. Taruck Nath Moitra (1893) 20 Cal. 487, Karnabh Pershad v. Mandil Dass (1901) 27 Cal. 379,Ratnamasari v. Akilandammal (1903) 26 Mad. 291, Venkoba Rao v. Nalraja Cheltiar (1914) M.W.N. 903, and Somasundaram Chettiar v. Vaithilinga Mudaliar (1917) 40 Mad. 846, the adoption was followed by possession. The father of Defendants 1 and 2 might have brought a suit for a bare declaration under Section 15 of Act VIII of 1859 which was in force till 1871; but it was not obligatory for him to do so. It was a contingency whether his right would materialise or not. If the daughter had survived all the widows, the adopted son would not have succeeded in preference to her. The case of Bright v. Tyniall (62) may be referred to. A distinction is there drawn between an interest that has arisen and is represented and an interest that has not arisen and may never arise. In an interpleader suit like the present not only the adopted son but also other claimants are in the position of plaintiffs and a suit to establish the adoption by the former is not more barred under article 129 of Act IX of 1871 than the suit of the latter to declare it invalid. The possession of the Receiver was not adverse to the adopted son nor to any of the other claimants and so time did not begin to run from the date of the adoption. So far as possession was concerned, the adopted son by bringing a suit to establish his adoption during the lifetime of the widows could not have been given the further relief of possession against the Receiver, for the grant had secured the enjoyment of the widows till the death of the last. As for the other parties the cause of action to set aside the adoption will only arise when possession is taken under colour of adoption vide Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhari (1886) 13 Cal. 308, and Tirbhuwan Bahadur Singh v. Rameshar Baksh Singh (1906) 28 All. 727; and the adopted son and his heirs have never obtained possession except for a brief period between Kamakshi Bat's transfer and the appointment of a Receiver in a execution of the decree in Jijoyiamba Bayi Saib v. Kamakshi Bayi Saiba (1868) 3 M.H.C. 424. The adopted son was bound by the decision in that case, to which he was a party, to the effect that he had no present right as lineal heir of the Raja to divest the widows. He could not have got a bare declaration that his title as adopted son was valid, as the Court will not try questions of title as to future interests when neither claimant has a right to present possession, especially questions of title which may never arise see Kathama Natchiar v. Domsinga Tevar (1876) 2 I.A. 169. The obligation of suing only arises when the possession is with an adverse claimant. As the Receiver was in possession, the adopted son could wait till the last female died and sue for possession of the property as his heirs have done. see Mahammad Umar Khan v. Muhammad Niaz-ud-Din Khan (1912) 39 Cal. 418. In 1881, the adopted son presented a petition for a succession certificate which was dismissed by Mr. Parker (afterwards Mr. Justice Parkar) as there was no valid authority to adopt and no valid taking in adoption. The District Judge's decision was confirmed by the High Court in Surfoji v. Kamahshiamba (1884) 7 Mad. 452, on the ground : that no inquiry need be held in miscellaneous petitions into intricate questions of law and fact. As there was no final adjudication on the validity of the adoption, that decision will not estop defendants Nos. 1 and 2 from putting forward their claim in the present case.
72. In the above mentioned aspect of the widow's power to adopt of her own free will, it becomes unnecessary to find as a fact whether the late Raja authorized the adoption of Rijaram; but, if a finding is necessary on this point, I should hold on the evidence that nothing more than a designation of this boy as a suitable boy to be adopted, if an adoption were to be made, took place, and that no express authority was given by the Raja on his death bed to his widows to adopt.
73. [His Lordship then referred to the evidence in support of the above finding and proceeding further, held that the fourteenth defendant was an agnate.]
74. The next question is what shares the children of the sword wives take. All the parties are agreed that they take per stirpes. The doctrine of representation applies to the illegitimate sons as well as to the legitimate sons. See GoPalasami Chetti v. Arunachellam Chetti (1904) 27 Mad. 32, and Ramalinga Muppan v. Pavada Goundan (1902) 25 Mad. 519. According to the latest Privy Council decision in Kamulammal v. Visvanathaswami Naicker A.I.R. 1923 P.C. 8, an illegitimate son of a Sudra takes half of what he would have taken had he been legitimate. As the Raja left six illegitimate sons and one son has been since adopted, the estate must be divided into seven Bhares. The sword wives' sons will get three-sevenths and the adopted son will get four-sevenths of the whole. In Kamulammal v. Visvamthaswami Naicker A.I.R. 1923 P.C. 8, there was a widow in existence who took along with the illegitimate sons. At the date of the present suit there was no widow alive, and therefore there is no difficulty in making the apportionment.
75. In paragraph 2117 of the lower Court's judgment, the Subordinate Judge states that the seventeenth defendant is the nearest bandhu, because all the other bandhus are at least one degree more remote. This is incorrect. The seventeenth defendant is the sister's grandson. The third defendant, being a daughter's grandson, is nearer to the propositus the last Raja Sivaji; and the authorities, Mayne, Trevelyan, Ghose and Sarvadhikari are all agreed upon this. They put the daughter's son's son at No. 2 before the sister's grandson at No. 10, giving the descendants preference over ascendants.
76. The Subordinate Judge has found the adoption of Sambu Singh by Sakharam Saheb who married the Princess Muktamba Bai and also the adoption of the third defendant by Sambu Singh to be proved. The adoption of Sambu Singh by Sakharam is not now seriously challenged. But the adoption of the third defendant by Sambu Singh is attacked on the ground that Sambu Singh was not in a state of mind capable of making an adoption at the time when it took place.
77. [His Lordship referred to facts, and evidence relating to the point and continued:]
78. It is evident that the patient was in extremis, and when we know that he was delirious and not in full possession of his faculties, the onus lies on those who propound the adoption of proving that he was in a fit state of mind to perform the act of taking the child in adoption with a proper consciousness of the nature of the act that he was performing vide Tayammaul v. Seshachalla Ndicker [1868] 10 M.I.A. 429. The conduct of Sakharam in contemplating the adoption of a son to himself in 1897 as shown by his letter to the Collector and the Collector's reply betrays a consciousness on his part that the adoption of March 4th, 1801 was not a good adoption. After the Collector reminded him of his telegram he executed a will in favour of another boy. As the daughter's igrandson can only take as a bandhu after the agnates, the question of the third defendant's adoption has now only an academic interest. If it is necessary to record a finding on the point, I should reverse the finding of the Subordinate Judge and find that the third defendant's adoption is not proved. If there was no evidence available beyond the fact that he was recognized as an adopted son, I should be prepared to accept the adoption as proved but when the adoption is challenged by the other parties and there is an attempt to prove by direct evidence how and when the adoption was made, the onus being on him, and he fails to prove the fact, he must abide by the consequences.
79. The last question relates to the claim of the 24th defendant, whom the lower Court has found to be nearer than the 15th defendant in propinquity to the deceased.
80. [After discussing evidence and confirming the lower Court's finding on this point, His Lordship concluded:]
81. The net result of these appeals will be that the lower Court's decree will be modified by directing that the suit properties be divided into 7 instead of 8 shares, out of which defendants Nos. 1 and 2 will take 4 shares and defendants Nos. 4 to 11 will take the remaining three shares per stirpes, and by confirming the decree of the lower Court in other respects, dismissing the Appeals Nos. 199, 200, 201, and 248 and modifying the decree in consequence of Appeals Nos. 333 and 334. Costs of the appellants in all the appeals to come out of the estate, as was ordered in the lower Court, seeing that this is an interpleader suit and the contentions of the appellants have been reasonable and fairly argued, and they adopted each other's arguments so far as they suited their particular cases. The memoranda of objections, except those of second defendant, which follow the result of Appeals Nos. 333 and 334, are dismissed.
82. We are much indebted to all the practitioners, counsel, and vakils, who have appeared in these appeals for the infinite pains they have taken in scrutinizing and analysing the masses of evidence on the record and the keen legal acumen and rare learning they have displayed in presenting the various questions of law that have had to be decided and in dealing with the interesting historical records of this famous family. I am fully conscious that much more might be said upon some of the questions at issue, especially that of the caste of the parties, but I have endeavoured to avoid prolixity and to make my judgment as succinct as possible, on the principle that if there are sound reasons for deciding a particular point in a particular way, those reasons rather gain than lose clearness by not being obscured by references to matters of minor importance.
Kumaraswami Sastri, J.
83. [His Lordship narrated facts and set out the rival contentions of the parties, and proceeded:]
It will thus be seen that the main questions to be decided in these appeals are-
(1) What is the construction to be placed upon the re-grant by the Government of the private propert ies of the late Maharaja Sivaji?
(2) Whether the issues by a wife married in sword marriage form legitimate or illegitimate?
(3) Whether there was in fact sword marriage contracted between the late Sivaji Maharaja and the mothers or grandmothers of defendants Nos. 4 to 11?
(4) Whether the parties are Sudras or Kshatriyas?
(5) Whether the Mayukha or Mitakshara applies to the parties?
(6) Whether the adoption of defendant Nos. I and 2 is valid?
(7) If defendants Nos. 1 and 2 and 4 to 11 are to be excluded, which of the other parties have proved that they are the next descendants of Sivaji? and
(8) If defendants Nos. 1 and 2 and 4 to 11 are entitled to succeed, what are their respective shares in the estate?
84. Before dealing with the grant by the Government it is necessary to consider the circumstances under which the private estate of the late Raja was granted by the Government by its order, dated the 21st of August 1862 which has been filed as Exhibit A-46 in the case.
85. [After setting out the circumstances under which the order of 1862 was passed. His Lordship continued:]
86. It is unfortunate that we have not got all the correspondence which passed between the Madras Government and the Government of India and the Home authorities. Exhibit A-37, dated the 23rd of June 1862, which is a letter from the Secretary to the Government of India, Foreign Department (Political), to the Chief Secretary to the "Government of Port St. George, throws considerable light on the reasons which prompted the restoration of the private property. It runs as follows:
I am directed to acknowledge the receipt of your letter, dated 17th ultimo, No. 194, soliciting further instructions regarding the disposal of the landed property of the Tanjore Raj and in reply to state that, since it is doubtful whether the lands in question can be legally dealt with as State property, and since the plea in equity and policy for treating them as the private property of the Raj is so strong that it commands the unanimous support of the members of the Madras Government, the Governor-General in Council sanctions the relinquishment of the whole of the lands in favour of the heirs of the late Raja.
87. This letter shows that the Government recognized the doubtful nature of the seizure of the private property and that it wanted to relinquish that property in favour of the persons who would have been rightly entitled to it as the heirs of the Raja but for the seizure. Exhibit A-46 which evidences the re-grant begins by referring to Colonel Durand's letter and paragraph 2 states that the relinquishment in favour of the heirs of the Raja having been settled,
88. "It has to be determined on what principles the distribution of the property both real and personal shall be made, or in other words, what are the respective rights of the Raja's widows and of his daughter. The Government have now before them the opinion of the Hindu Law officers of the Sudder Court on a question put with the view of ascertaining the Hindu Law as applicable to the case.
89. The words "relinquishment of the whole of the lands in favour of the heirs of the late Raja" show clearly that no person who would be the heir at the time or subsequently was to be excluded and that, though technically the relinquishment may by virtue of the anterior seizure in the professed exercise of sovereign rights have the effect of a fresh grant, there was as far as possible to be no break with the past and no change for the future, things being put in the same position as if there had been no seizure. The position therefore was that it was resolved to relinquish the property which had been seized and the Government was anxious to give it back to the heirs of the Raja, i.e., to the persons who would have taken the property on the death of the Raja, had there been no seizure. The adoption of Rajaram Ingle, the father of the first and second defendants, by Kamakshi Bai Saheba was on the 1st July 1863, so that on the date of the Government Order of the 21st of August 1862 there was no adopted son in existence to claim the property. It is no doubt true that attempts were made to set up the claims of Rajaram Ingle to the Raj soon after the Raja's death on the ground that he had been brought up by the Raja with the intention of adopting him and that he had performed the funeral ceremonies with the knowledge and consent of the Resident; but it was admitted that no ceremony of adoption had been performed by the Raja. Mr. Forbes had at the earliest opportunity denied that Rajaram Ingle was adopted by the Raja or had any claims as such. The plaint in the suit by Kamakshi Bai Saheba against the East India Company to which the Secretary of State for India and the other Ranis were parties specifically stated that the Raja had died leaving neither a natural son or a son by adoption and that consequently Kamakshi Bai Saheba was the sole heir under Hindu Law. None of the parties to that litigation which was the chief cause of the restoration of the private property in 1862 ever Bet up the rights of the adopted son and legal proceedings went on on the footing that the only persons entitled to the estate were the widows. Between the disposal of the suit by the Privy Council and the re-grant nobody ever set up the rights of the adopted son and all the petitions and memorials which were submitted and which led to the restoration of the property were submitted by Kamakshi Bai Saheba and other widows. There is nothing in the memorials to the Government which states that an adoption was going to be made before the date of the re-grant.
90. Under these circumstances it is difficult to hold that the Government had in view the rights of Rajaram Ingle, the father of the first and second defendants or that it would have, if the adoption had been made before 1862 and was otherwise valid under Hindu Law, excluded him from succession.
91. So far as the Mangala Vilas sons are concerned, it had been assumed from the very commencement by all parties that the Maugala Vilas ladies, though called sword wives, were in effect only in the position of permanently kept concubines of the late Raja and that the sons by them of the Raja were illegitimate. It was stated by Kamakshi Bai Saheba in the suit she filed against the Secretary of State and which has been already referred to that the deceased Baja was a Sudra by caste. This fact was admitted by the East India Company in the answer to plaintiff's interrogatories and the judgment of the Supreme Court affirmed this. Under the law as then understood the illegitimate sons were postponed to the widows and the daughters and there was no question of any immediate rights of the Mangala Vilas children or any motives for excluding them, if there were no preferable heirs in existence when the last of the widows died.
92. Exhibit D-240 is a judgment of this Court in 1865 where it was held that an illegitimate son of a Sudra is postponed to his widow. Though it was reversed by the Privy Council on the facts of the case, the law was not dissented from. Sir Thomas Strange in his Hindu Law, page 69, published long before 1882, states that the illegitimate son takes after the daughter. I may also refer to Parvathi v. Thirumalai (1887) 10 Mad. 334. It was only so late as the year 1909 that it was finally decided inMeenakshi Anmi v. Appakutti (1910) 33 Mad. 226, that the illegitimate son takes with the widow and is not excluded. Mr. Norton who was at one stage of the proceedings authorized to act for the Mangala Vilas ladies never set up any independent claim of the Mangala Vilas ladies 'or their sons to the private property of the Baja but contented himself with claiming and getting the restoration of the properties which belonged to the Mangala Vilas. Nobody at the date of grant thought of getting up the claims of the Mangala Vilas sons who were then little boys. Pensions had been granted to them by the Madras Government which were being received by the Mangala Vilas ladies. There is no ground for thinking that the Government had in view the rights of the Mangala Vilas sons when it made the grant and wanted to exclude them from succeeding. The only persons before the Government who had any present right according to the state of facts which were then before the Government were the only surviving daughter of the Raja and the widows who were married according to the orthodox ritual. Of these ladies Kamakshi Bai Saheba was the eldest and questions arose as to the rights of the daughter, and of the widows infer se. It is these questions that the Government wanted to solve by reference to the Pundits, and they wanted to solve them with reference to the rights of the parties under Hindu Law. Of the Baja's two daughters, the elder died on the 26th September 1856 and the younger who was nine years old at the date of his death married Sakharam Saheb, the husband of her deceased elder sister in 1860. They adopted one Sambu Singh on the 3rd July 1884. The junior Princess died on the 31st January 1885. Her husband died on the 28th January 1895. Sambu Singh died in March 1891 after adopting the third defendant on 4th March 1891.
93. It is abundantly clear that the Government wanted to wash its hands of the private properties of the late Baja and did not reserve to itself any interest when it made the grant in 1862. While on the one hand it wanted to safeguard the property from waste and the consequent prejudice to the reversionary heirs, it did not want to prefer one heir to the other or to exclude persons who would be the heirs of the Raja when according to the Hindu Law succession to the Raja who was the last male holder, opened on the death of the widows. It should be remembered that there were 17 widows at the date of the Raja's death, some of whom were girls who had not even obtained puberty. In the ordinary course of things it would have taken several years for. the last of them to die and I find it difficult to believe that the intention of the Government was to cut out the nearer branches in favour of branches more remote, if such nearer branches should exist, when succession opened in the distant future.
94. Various contentions were raised by the parties as to what estate each of the persons specified in the Government grant took, and as to whether the interest taken was vested or contingent. So far as the widows, daughter and the other heirs of the Raja are concerned, it was contended by Mr. Grant for the fifteenth defendant that the widows took what under the Hindu Law would be a widow's estate, that they represented the whole inheritance leaving nothing but a spes successionis to those who come after them and that the Government having exhausted the whole estate by conferring it on the widows left no remainder to anybody else. He contends that the reference to the daughter and the next heirs of the Raja are descriptive of the nature of the estate granted to the widows and that the widows are the only dnees, the other words in the grant being words of imitation appropriate to the character of the widow's estat?. Mr. Raja Ayyar for the third defendant contended that what was given to the widows was only a life estate, that the daughter got a vested remainder capable of transmission to her heirs and that any estate which the next heirs of the Raja may take was contingent on the death of the daughter and on there being no heirs of her own to succeed her under Hindu Law. Mr. Alladi Krishnaswami Ayyar for defendants Nos. 4 to 11 contended that the widows took a life estate, that the estate taken by the daughter was contingent on her surviving the widows and that, if she predeceased the widows, the estate went to the next heirs of the Raja who were to be ascertained at the date of the death of the last Rani. He adds that so far as his clients are concerned, it does not matter whether the estate taken by the daughter was vested or contingent, as, even if it was vested, it was defeasible on her predeceasing the widows and that there is nothing in law to pre. vent a vested estate from being defeasible.
95. In dealing with the estate which the widows took, the actual words of the grant do not throw much light. The important words of the grant are:
the estate will therefore be made over to the senior widow who will have the management and control of the property, and it will he her duty to provide in a suitable manner for the participative enjoyment of the estate in question by the other widows - her co-heirs.
96. There are no powers of alienation in terms given to the widows; but reading the document as a whole and having regard to the intention of the Government to dispose of the property in a manner that would least conflict with the Hindu Law as then understood, I think the Government intended to confer an estate in several respect analogous to that taken by a Hindu widow by inheritance.
97. The question whether it is open to a stranger to create what would strictly be a Hindu widow's estate in property by a grant or devise is not free from doubt. In Vengamma v. Chelamayya (1913) 36 Mad. 484, the learned Judges doubted if a Hindu widow's estate can be conferred by a stranger by grant or devise, but in Ram Bahadur v. Jagar Nath Prasad (1918) 3 P.L.J. 199, it was held that such an estate can be conferred. The grant being a Crown grant, Act XXV of 1895 (Grown Grants Act) which is made retrospective applies and the grant must take effect according to its tenor irrespective of the Hindu Law. There is, however, nothing to prevent a grant imposing many of the limitations which would be imposed by Hindu Law upon a widow succeeding as heir without altering the course of succession. I am unable to agree with the contention of Mr. Grant that because the Government intended to grant an estate to the widows which should be analogous to an estate taken by a Hindu widow, there could be no gift over to anybody. The impossibility of a gift over to somebody would only arise if the action of the Government can be taken to be a mere restoration of the estate wrongfully seized and not a fresh grant but as pointed out by the Subordinate Judge in paragraph 656 of his judgment all the parties were agreed before him that the properties being vested in the Crown and granted by it again, there was no lineal descent or direct inheritance from the Raja as would have been the case if the act of state had been annulled and succession was therefore governed primarily by the terms of the grant. They take the same ground before us on appeal. It was on this ground that the Jijoiamba Rayi Saiba v. Kamahshi Rayi Saiba (1868) 3 M.H.C. 424, case negatived any present right in the adopted son to divest the widows and it is contended with considerable force by Mr. Raja Ayyar who appears for the third defendant that if the Government really conferred a strict widow's estate with all the incidents attached thereto the divesting by the adopted son is one of the incidents which is in separable from the widow's estate, and that it is no answer to say that the confiscation put an end to divesting by the adopted son, as the grant of a pure Hindu ' widow's estate would carry with it the lia a bility of being divested by an adopted son the divesting being not because of a claim by inheritance but of a claim by virtue of the terms of the grant conferring a Hindu widow's estate with all its incidents.
98. Much stress was laid on the use of the al word "inherit" in the grant, Exhibit A-46. m There can be little doubt that if confiscation put an end to all antecedent rights and rights have to be determined on the la footing of a fresh grant, the words "inherit" and "next heirs" cannot have their ordinary co meaning of taking property by virtue of intestate succession "inherit" must only mean "take."
99. It has been argued that the use of the word "inherit" in the grant precluded any idea of a gift in favourof the daughter of next heirs. I do not think that this is so; and I need only refer to Bhagabati Barmanya v. Kalicharan Singh (1911) 38 Cal. 468. In that case that testator by his will after giving his properties to his will after giving his properties to his mother and wife for life directed that after their death the property should go to his sistter's sons who were then in existence and who may be born thereafter in equal shares and that they were "to hold the said properties in possession and enjoyment by right of inheritance" Their Lorships of the Privy Concil at page 472 observe as follows:
It convenient at the outset to dispose of a point suggested by the words by right of in heritance. It was said that there was really no bequest in favour of the nephews, and that so far as they were concerned, the will only declared the right of inheritance. The High Court had no difficulty in rejecting that contention, and their Lordships are of the same opinion.
100. I think the word "inherit" in the grant of simply means "take." In John Lloyd be Vaughan Watkins v. Arthur Frederick (1865) 11 H.L.C. 358, the words used were the elder son "to inherit" before the younger. Lord Chancellor (Westbury) was of opinion that the to words "to inherit" were used as simply equivalent to the verb "to take." Under ho Hindu Law the husband of a woman and he his heirs would succeed to the absolute properties of the woman in preference to its her father and his heirs and it could not it have been the intention of the Government a to divert the line of succession to Sakharam id Saheb, the daughter's husband and to his s heirs, if she died issueless before the in widows. I am clearly of opinion that u "failing her" does not mean "failing her and her heirs" as contended for by Mr. Raja Ayyar who appears for the third defendant - the adopted son of the adopted f son of the daughter. I am also of opinion that the words "the next heirs of the late Raja" mean the nearest heirs of the Raja at the time when succession opened and do not mean the heirs next after the daughter. No authority has been cited for the contention that the words "the next heirs of the late Raja" must necessarily mean the heirs after the daughter. It will lead to strange consequences to hold that when properties are given to two of the relations of a person who are related to the donor, and it is provided that on failure of them or the second of them, the next heirs of the donor should take the property, all the persons who would under the Hindu Law of inheritance, be heirs in preference to the heirs of the second donee should be excluded. Suppose, for example, a man gives or bequeaths property to his wife to be enjoyed for her lifetime and then to his sister's son for whom he has a great affection and provides that, if the sister's son dies before the widow, the property. should go to the donor's or testator's next heirs. Can it be said that because the sister's son is only a Bhandu (cognate), and comes much lower down in the table of succession after the list of agnatic heirs, all the agnates of the donor (e.g., his brother's son) would be excluded and the property should go to one further removed in succession than the sister's son? Such a construction would lead to absurd results. I see no reason for holding that the words "next heir" should not be used in the ordinary sense of "nearest heir." Ordinarily the words "next heir" mean the nearest, rightful or true heir. Reference may be made to Section 80 of the Succession Act where the words, heirs, right heirs, relations, nearest relations, family, kindred, nearest of kin, next of kin are used and where it is stated that in such cases the nearest heir in the table of succession to the testator takes the property. In Doe v. Chaffey (1847) 16 M. & W. 656, it was held that "next heir" means the true heir when the gift takes effect and not the person next in order to the first son. Numerous cases were cited dealing with vested and contingent remainders and the construction placed by Courts on wills conferring successive estates. I think that several of the cases cited have no application to the facts of the present case.-The principles which ought to guide Courts in the construction of wills, many of which apply with equal force to the construction of grants, have been laid down with great clearness by their Lordships of the Privy Council in Narasimha v. Parthasarathy [1914] 37 Mad. 199. It has been pointed out in more cases than one by their Lordships of the Privy Council that the construction placed on the terms of one document is not a safe guide for construing another and I think the following observations of Lord Shaw in Lucas Tooth v. Lucas Tooth [1921] 1 A.C. 594, may well be borne in mind in dealing with the cases cited:
My Lords, there are two things in construction which ought to be avoided: the first is the danger of misplaced analogy and the second is the treatment of a stated category as necessarily exhaustive of the possibilities of signification of a term employed.
101. I think that unless the terms of the grant, Exhibit A-46, clearly render it necessary to do so the nearer heirs of the Baja under Hindu Law ought not to be excluded in favour of remoter heirs. I can see no such intention in the grant, Exhibit A-46, which only dealt with the widows and daughter, the next heirs under Hindu Law then in existence. It has been argued that the mere fact that the adopted son would ordinarily take before the daughter implied that the Government wanted to exclude him. I do not think this result necessarily follows. It is competent to a Hindu having power to deal with his property by will to direct an adoption to be made by his widow and to postpone the rights of the adopted son to possession and enjoyment of the properties till after the death of his widow. It is also competent to the widow and the adopted son if he is a major, to agree that the adopted son shall get possession of the properties only after the death of the widow; and the decision in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C. 424, above referred to that the adopted son had no present right may be rested on the ground that the Government having given the properties to the widows as persona designata to be enjoyed by them for their lives with rights of survivorship necessarily excluded the adopted son from claiming possession or enjoyment during the lifetime of the widows. There is nothing to prevent estates being granted to take effect on the death of a Hindu and a woman's estate being treated merely as interposition and for succession to be traced to a deceased person on the analogy of the ordinary Hindu Law where the last male owner dies leaving persons who are entitled either simultaneously or in succession to what is known as a woman's estate. In such cases it is well settled that succession is traced to the last male holder on the supposition that he died on the date of the death of the holders of limited estates. Persons might come into existence who are nearer heirs to those existing on the date of his will or grant who may have taken earlier if in existence but who are postponed by the express terms of the grant. In cases of a Hindu widow obtaining estate by adverse possession as against a preferential heir of a deceased person, where circumstances indicate that she prescribed only for a widow's estate, it has been held that the heir of her husband succeeds even though he might have preference to the widow under the ordinary Hindu Law and would have taken before her but for her taking possession. I need only refer to In re Prattipati Seshyya (1912) 11 M.L.J. 261. In dealing with the estate taken by the widows under Exhibit A-46, I do not think it makes any difference whether the widows took what in law would be a strict Hindu widow's estate or whether they took an estate in several respects analogous to it or merely an estate for life, because it seems to me to be clear that whatever view may be taken, it is competent for remainders whether vested or contingent being tacked on to the estate conferred on the widows by the grant. In Mahomed Shumsoo v. Shewukram (1874) 2 I.A. 7, property was conveyed by a Hindu to the widow of his deceased son. The document recited that 'except her none other is nor shall be my heir and malik.' It also recited that his daughter-in-law had two daughters "and that the two daughters named above, together with their children who, after their marriage, may be given in blessing to them by God Almighty, are and shall be heir and malik," The daughter-in-law who was the first donee borrowed moneys and sold the property comprised in the will. A suit was filed for the daughter's son for declaring his right as reversioner and for cancelling the sale. The High Court passed a decree setting aside the sale on payment of Rs. 14,000 which was all they held was binding on the reversioner. An appeal was filed to the Privy Council and their Lordships of the Privy Council confirmed the decree of the High Court. In dealing with the nature of the estate taken by the first donee, their Lordships held that
She did not take an absolute estate but that she took the estate subjoot to hoi daughters succeeding her in that estate : whether succeeding her as heirs of herself or succeeding her as heirs of the original testator is immaterial.
102. As regards the use of the word "heir" their Lordships observed:
it would appeal that the testator uses the word "heir" as signifying the person who is to take immediately in succession to another, that be applies it to the Rani as the person who is to take in immediate succession to him, and to the two daughters as the persons who are immediately to succeed to the Rani," and their Lordships think that, viewing the will as a whole, when he uses the expression "except Mussamat Rani Dhim Kowur aforesaid, none other is nor shall be my heir and malik," it may be fairly construed as meaning that she shall take a life interest immediately succeeding him without that interest being shared by her daughters or by any other person. In another portion of the judgment dealing with the power of the widow to confer an absolute estate if there were debts to pay, their Lordships observe:
they apprehend the law to be this; that Rani Dhun Kowur, who may be considered as very much in the position of a Hindu widow might have sold the estate absolutely if it could have been shown (and the burden of showing this is upon the purchaser) that to convey such an absolute estate was necessary in order to pay the debts of the testator, and was for the benefit of bis estate generally.
103. This decision is important as showing that there is nothing illegal in an estate analogous to a widow's estate being granted to A and to a gift over being made to other persons. There is another ease in the same volume Mussumat Bhagbatti Daee v. Chowdry Bholanath Thakoor (1875) 1 Cal. 104. In this ease one Odan Thakoor adopted his brother's son Girdhari Thakoor. He had at that time a wife called Mussumat Chundarbutti and a daughter of Mussumat Suntbutti. Shortly before his death he executed a document, which was construed in this case, in favour of the adopted son, and got a document in similar terms from his adopted son. In the document executed by Odan Thakoor he gave his daughter Mt. Santbutti a certain share in the property
for her maintenance in order that she may enjoy possession of the same with her children, as proprietress and thus pass her days.
104. He gave certain other properties to his wife
to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of the Government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves, that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakoor, my kurta (adopted son) and that no objection thereto raised by any one shall be ever held valid,
105. The Subordinate Judge construed the document as giving Ghundarbutti an estate for life with power to appropriate the profits, and to Girdbari, the adopted son, a vested remainder on her death. On appeal, the High Court differed from the Subordinate Judge and observed as follows:
Shortly, the effect of the two ikrarnamas which have been read to us appears to be this, that by an understanding between Odan Thakoor and his adopted son, carried out in those instruments, it was agreed that notwithstanding the adoption Chundarbutti should take and enjoy the estate of her husband, whose death was then apprehended and which did shortly afterwards occur, in the same mode as she would have taken and enjoyed it, if no adoption had taken place "that is in her character as a Hindu widow. Their Lordships of the Privy Council disagreed with the view of the High Court and stated that there was no evidence to show that there was any understanding as that referred to by the High Court and obsered as follows:
If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other band, she would have certain rights as a Hindu widow; for example, she would have the rights under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Grirdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the Statute of Limitations might run against the heirs to the estate, whoever they might be. Their Lordships see no sufficient reason for importing into this document words which would carry with them all these COD sequence?, and they agree with the Subordinate Judge in construing it according to its plain meaning.
106. In Ram Bahadur v. Jager Nath Prasad (1918) 3 P.L.J. 199, one Fateh Chand died, leaving a widow Mb. Sheodei Kuer and his brother's daughter Mt. Bibi Sabodra. He executed a will to the effect that should any son or daughter be born to him during his life-time such son or daughter should be the owner of the property, that if there be no son or daughter, his niece should take a bequest of a lakh of rupees, that the rest of the moveable and immovable properties should remain in the possession of his wife till her death and that after her death it should pass to his niece, but that if on the death of his wife and niece there should be living a son and a daughter born to his niece, they, should share it in the proportion of two-thirds and one-third. After the death of the widow, Sabodra alienated certain properties and the question was whether the alienation was valid beyond her lifetime. It was held that Sabodra did not take an absolute estate by inheritance giving her unfettered rights of alienation but an estate which the Hindu Law confers on a woman who inherits in case of intestacy, that such an estate is capable of being granted by grant or by will and that the estate of those who took after the niece was a contingent and not a vested remainder. These decisions are authority for holding that even if a widow's estate was granted, there can be a remainder fastened upon it.
107. A question was raised in these appeals as to whether the period when the heirs of the Raja were to be ascertained was the date of the grant or the date of the death of the last Rani. On this point it has been held that no general rule can be laid down but that is a question of construction which will yield to the context. I need only refer to Hutchinson v. National Refuges for Homeless and Destitute Children (1920) A.C. 794 and Lucas Tooth v. Lucas Tooth [1921] 1 A.C. 594. There is nothing in law to prevent a person taking as heir of the testator or donor by virtue of his satisfying the requirements in an ultimate bequest even though he may be excluded either expressly or by the terms of the grant from taking under a prior clause. Reference was made to the Succession Act and the Transfer of Property Act and though the Acts were long after the date of the grant, the Acts were referred to as affording a safe guidance. If any of the provisions of the Acts afford guidance for the interpretation of this will, I think Section III and illustration (e) of the Succession Act and Section 23 of the Transfer of Property Act are in point. Illustration (e) to Section III of the Succession Act ruts as follows:
A legacy is bequeathed to A for life and after his death to B 'and in ease of B'S death' to C. The words 'in case of B's death' are to be considered as meaning 'in case B shall die in the lifetime of A'.
108. I think the words in the present grant "or failing her" mean "if she should die before the last surviving widow".
109. Reference was made by Mr. Rajah Ayyar to Brji Lal v. Suraj Bikram Singh [1912] 34 All. 405, where a testator bequeathed property to his wife directing that after his death she should remain in possession and enjoyment of the property with all powers or authority like himself and that after her death his daughter-in-law should remain in possession and enjoyment like himself and his wife. It empowered the daughter-in-law to nominate any one whom she may think fit as "heir" so that the name of the family may continue as formerly and now with honour. Their Lordships of the Privy Council affirming the decision of the Judicial Commissioner held that the daughter-in-law took only an estate for life and observed:
In the first place there is no estate at all given to the lady in terms. The only direction is that she is to remain in possession and occupation of the property, and then she is invested with the power of appointing an heir either in her lifetime or by will, it seems to their Lordships that the word 'heir' in that clause means heir to the testator and that the judgment of the Judicial Commissioners is perfectly right.
110. It is argued that in the present grant no estate is in terms conferred on the widows, that all that is said is that the estate will be made over to the senior widow who will have the management and control of the property, and that it will be her duty to provide in a suitable manner for the participative enjoyment of the estate in question by the other widows - her co-heirs, and that no powers sire given of alienation, nor do any of the terms used in the grant denote that the widows had anything more than the right to enjoy the property for their lives as life-tenants. I do not think that the nature of the estate taken by the widows is very material as there is no question of any alienation by the widows or anything done by them which would prejudice the reversion. The property in dispute is almost identical with the property which the Receiver took possession of in 1866 and there are no claims of any alienees to be considered. The authorities which I have referred to show that where the widows took a life estate or an estate analogous to the estate of a Hindu widow, there is nothing to prevent remaindeis being fastened on to such estate and we are more concerned with the nature of the remainders than with the powers of the widows, the first donees under the grant. However, having regard to the terms of the grant and the attending circumstances pointed out by me, I think it was the intention of the Government to grant to the widows and estate corresponding as nearly as possible to the estate which a Hindu widow would take in her husband's property if she succeeded him in the ordinary way.
111. I think that the proper construction of the grant is that the widows were to enjoy an estate for their lives analogous to Hindu widow's estate with rights of survivorship, the management of the estate being in the hands of the senior widow, that the daughter was to succeed to the estate if she survived the last widow, and that if she predeceased her, the estate was to be taken by the person or persons who at the date of the death of the last surviving widow would under Hindu law be the next or nearest heirs of the Raja, he being treated as the stock of descent. I think the words "or failing her" mean "if the daughter should die before the widows" and that they do not mean failing her and her own heirs. The grant does not mean that the daughter is to be treated as a fresh stock of descent and it is clear from the succeeding words "the next heirs of the Raja will, if any, inherit," that the heirs of the daughter were not intended to come in unless they were also the next heirs of the late Raja if she died before the widows.
112. The next question is whether what is called a "sword marriage" is a valid form of marriage and whether the issue of such marriage have all the rights of legitimate issue. Connected with it is the question whether the mothers of defendants Nos. 4 and 5 and the grand-mothers of defendants Nos. 6 to 11 were the sword wives of the late Maharaja Sivaji.
113. So far as the pleadings go, none of the defendants except defendants Nos. 4 to 11 allege that sword marriage is a legal or customary form of marriage. In paragraph 10 of the fourth defendant's written statement he states as follows:
This defendant is the legitimate son of His Highness Sivaji by Saubhagya Lakshmi Bai who was brought to the Palace as a virgin when she was about 11 years old and married to His Highness in the presence of sword - a form of marriage which is customary and recognized as valid and legal in the family of His Highness and in the Mahratta community to which His Highness belonged.
114. Defendants Nos. 5 and 7 to 11 in paragraph 13 of their written statement allege:
That it was the custom of the Royal family of Tanjore to enter into sword marriages and to take as wives girls married according to that form. Such sword wives were admitted into the family as members thereof, were treated with respect and consideration by the other members including the wives married in the ordinary form.
115. It is clear that this form of marriage is not one of the forms of marriage referred to in any of the Smritis or authoritative ancient works on Hindu law or in any of the commentaries which are accepted as authorities in the various provinces of India. It is not included in one of the eight forms of marriage and it was not disputed before us that there was no reference to such a marriage in Manu, Parasara, Yajnavalkya, or in any of the Dharma Sastras which deal with the subject of marriage. So far as the eight forms of marriage referred to in the Sastras are concerned, it is now accepted law that all except the Brahma and the Asura forms are obsolete (see Mayne on Hindu law, paragraph 88, page 97.)
116. The only reference made to the sword marriage in any Sanskrit work is that contained in a work called Jyotirvida-bharanam. This is not a book dealing with Hindu law but is a work on Astrology; and though ascribed to the great poet Kalidasa, it is clearly a work of much later origin. Professor Weber in his History of Hindu Literature is of opinion that the book was written about the 16th century. The only reference to the sword marriage is that contained in a verse which has been translated as follows:
In the Kali-age a king should perform the auspicious sword marriage ceremony in the summer solstice on the day having the five auspicious parts (angas) the austeric being fit for the marriage, in the evening.
117. The next stanza gives the horoscope of the sword. The previous slokas refer to the eight kinds of marriages mentioned in the Sastras and divide them into carriages where the Panigrahana ceremony, i.e., the ceremony where the bridegroom takes hold of the hand of the bride before the sacred fire, is necessary and those where it is not necessary. Of the eight forms of marriage the author states that the Brahma, Prajapatya, Dyva and Arsha are the forms which require the Panigrahana ceremony in which the hand of the bride is held by the bridegroom. The other forms of marriage, Gandharva, Paishachi, Raksbasa, and Asura are forms where the Panigrahana ceremony is not necessary. As regards the first four forms of marriages the author states that they should be performed at the time stated by him in the previous portion of the work and as regards the latter four forms where no such ceremony is necessary, they could be performed at any time. Then comes the stanza relating to the sword marriage which I have set out above.
118. It is argued by the vakil for the first and second defendants that the sword marriage referred to in that stinza does not refer to any marriage between a man and a woman, but to a ceremony whereby the king performs a ceremony by which he becomes wedded to the sword which is the emblem of kingly power, the object being that with the help of the sword he should be victorious in the wars which he undertakes. It is also argued that the word "Dharadhibu" which really means "the Ruler of the Earth" refers only to Kshatriyas or Rajputs who belong to the warrior Glass and not to Brahmans, Vysias or Sudras. It is also argued that no work on Hindu law refers to sword marriage as a form of marriage and that it is unlikely that the Jyotirvidabharanam, which really deals with the auspicious hour for performing marriages known to Sastras would in this casual manner refer to a form of marriage unknown and not referred to in any previous works on Hindu law. It is stated that the casting of the horoscope of the sword in the next sloka would be perfectly unnecessary if the marriage was to a woman, because in such cases the horoscope of the woman would be the horoscope that would guide the union.
119. It is contended on the other side that, having regard to its position in the book and having regard to the fact that it comes in Chapter XIII which fixes the Lagna or the auspicious time for performing the marriage and also having regard to the arrangement whereby marriages are divided into two kinds, i.e., where Panigrabana is necessary and where it is not, the sloka relating to the sword marriage really refers to a form of marriage between a man and a woman, the sword playing an important part in the ceremony and not to a marriage with au inanimate object like a sword. I have read the stanza carefully and I think that the stanza refers to a customary form of marriage 'that probably arose after the Muhammadan conquest. It seems to me, (however, that the verse only refers to a 'union by a Ksbatriya. It is clear that a is word marriage is a form of union which by custom has been recognized by Rajputs and some other communities. Mr. Enthoven in his "Castes and Tribes of Bombay," Vol. Ill, page 218, deals with the custom of sword marriage among the Rajputs who are Kshatriyas. He gives a del-ailed account of the marriage and it appears from his description that, though a sword was sent to the house of the bride with certain ceremonies, the bride and bridegroom met afterwards and other ceremonies were performed. The case reported inBamasami Kamaya Naik v. Sundara-Hngasarni Kamaya Naik (1894) 17 Mad. 422, which relates to the Sattur Zamindari where the parties were Sudras also shows that it was the custom, in certain families in Southern India to perform what was known as sword or dagger marriage, the wife being known as the sword or dagger wife. It appears from the judgment that all the usual ceremonies in connection with a marriage were gone through - the dagger being placed as a symbol to show that the status of the wife was inferior. This case does not help us much. Mr. Ganapathi Ayyar in his work on Hindu law refers to a sword marriage and at page 491 observes;
Among the Kshatriya castes there is a form of marriage known as the sword, or dagger marriage (kadga vivaha) and this prevails even now among some zamindar families. In the Jyotirvidabha-ranam which is supposed to be the work of Kalidasa, it is said that in the Kaliyuga even a. marriage without Panigrahanam is good as in the case of kings who celebrate marriages in the sword or dagger form (kadga vivaha).
120. The issues Trained in the suit base the claim on custom and although defendants Nos. 4 to 11 state that it was a custom in the Royal family to which Raja Sivaji belonged and among the Mahrattns generally to have sword wives, there is no evidence that in the royal families of Kolhapur or Satara which equally with the Royal family of Tanjore descended from the Great Sivaji, there was any instance of a marriage known as sword marriage having ever been contracted by any of the members of the Royal family. There is no reference to any custom of sword marriage amongst the Mahrattas in the Dekhan or the Bombay Presidency in the Kolhapur, Satara or other Gazetteers published under the authority of the Government. As I said before, the only reference I can find is in Enthoven's "Castes and Tribes" and it refers to the custom amongst the Rajputs. Only one witness Vittal Rao Sahib Mobitai, the eighty-seventh witness for defendants Nos. 4 to 11, speaks to a sword marriage having been contracted by a relation of his in Bhor in the Satara district and describes the ceremonies the parties went through. Mahadeva Rao Nimbalkar, the eighty-third witness of defendants Nos. 4 to II, speaks to his maternal grandfather having performed a sword marriage but states he can give no details of that ceremony. This evidence is totally insufficient to prove any general custom amongst the Mahrattas generally.
121. The question therefore resolves itself into whether any special customs existed in the royal family of Tanjore and, if so, what were the rights of the issue. So far as the Tanjore Royal family is concerned, there is the evidence of Dharmavalli Bai Amma whose deposition has been marked as Exhibit D-236. She states that she was the brother-in-law's daughter of Sivaji Maharaja, that she was married according to the sword form of marriage, that the marriage was over in a day, that a sword was placed and homam performed, that she went round the homam when the priest chanted the mantrams, that after she did that, she prostrated before the Raja who tied a tirumangaliam or tali round her nock, that there was a dinner afterwards and that the Raja's adoptive mother Avu Bai Saheba performed a ceremony known as sunmuk, i.e., a ceremony where the mother-in-law for the first time after the marriage looks at the face of the daughter-in-law. It is unfortunate that this witness who would have been an important witness for defendants Nos. 4 to 11 was not examined earlier. She was ill when she was exainined-in-chief, and her examination was adjourned after a few sentences in cross-examination were recorded. She died before cross-examination could be resumed. There was considerable argument as to the admissibility of her evidence which it was not possible to test by cross-examination. I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can have little value. I need only refer to Taylor on Evidence, Section 1469 : Davies v. Otty (1865) 35 Beav. 208, Elias v. Griffith (1877) 46 L.J. Ch. 806, Man Gobinda Chowdhuri v. Shahindia Chandra Chowdhuri (1908) 35 Cal. 28, and Dhanu Ram Mahto v. Murli Mahto (1909) 36 Cal. 566. There is nothing in the Evidence Act which renders such evidence inadmissible. In Rosi v. Pillamma (1910) 20 M.L.J. 400 it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should not be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. I am not disposed to attach any weight to the evidence of this witness.
122. [After discussing evidence, His Lordship held that in the Tanjore Raja's family there wore unions by which women were admitted to the seraglio and were known as sword wives.]
123. The first recorded instance of a sword marriage is that between Tukkoji, son of Venkoji, the founder of the Tanjore Dynasty, and Annapurni Bai; and Pratapa Singh who reigned from 1740 to 1763 was the issue of such a union. The next instance is that of Amar Singh, son of Pratapa Singh. The third instance is that of Pratapa Singh (son of Amar Singh) and his wife Radha Bai, and it was this marriage that was in question in the suit which I have already referred to and the judgment in which is filed as Exhibit Rule 100. The rent instance is that of Serfoji who had a number of sword wives and who founded an institution called Kalyana Mahal for them and the last instance is that of his son Sivaji the last Raja of Tanjore who had 40 sword wives and who founded an institution known as Mangala Vilas for them.
124. It is significant that none of the records show that the children by sword wives were as regards property or succession treated as legitimate issue entitled to the same rights and privileges as the children by wives married according to orthodox form.
125. [His Lordship held that Pratapa Singh, the son of Tukkoji by his sword wife Annapurni Bai had been treated as illegitimate not only in early documents and by all historical writers but also by his grandson Serfoji Raja in the inscription Exh. B-140. Then after referring to other evidence, His Lordship proceeded:]
126. There is in Exhibits B-140 and B-141 a clear indication that the women with whom the ceremony of sword marriage was gone through were looked upon as no better than permanently kept concubines.
127. Turning to Mahratta History, Orme in his history, Vol. I, page 108, refers to Pratapa Singh as a person born of an inferior wife of his father Serfoji and states that he was placed on the throne by the general concurrence of the principal men in the kingdom which had suffered much from the weak administration of Shahuji. The early writers seem to have treated a permanent conoubine as a kind of inferior wife. In Strange's Manual of Hindu Law, Vol. II, published in 1825 he states that kept women are regarded as inferior wives I may also refer to the decision reported in Datti Parisi Nayudu v. Datti Bangaru Nayudu (1869) 4 M.H.C. 204. where it is said that a permanently kept conoubine ranks as if she were a secondary wife. Grant Duff in his History of the Mahrattas (a book which has been exhibited as B-177) at page 462 of Vol. I, states that Pratapa Singh is the son of a concubine. Mill in his history of India which has been filed as Exhibit G-212 at page 62 of Vol. III, refers to Pratapa Singh being the son of one of the inferior wives of Tukkoji, but Mr. Et. H. Wilson's note states that Pratapa Singh was the son of a concubine. In Aitchison's Treaties, Vol. X, which has been marked as Exhibit B-172, reference is made to Pratapa Singh as being of illegitimate birth. Justice Ranade in his History of the rise of the Mahratha Power refers to Pratapa Singh as an illegitimate son of Tukkoji and states that the Mabratta officers in the service of Tanjore finally succeeded in raising him to the throne. In the Tanjore District Manual published under the orders of the Government which has been marked as Exhibit B-173 Pratapa Singh is said to be the illegitimate son of Tukkoji. In the genealogical table given at page 764 of the Manual Tukkoji is said to have had three illegitimate children, Anna Saheb who died before his father issueless, Nana Saheb who died before his father leaving an infant son and at pages 775 and 777 reference is made to Pratapa Singh as the illegitimate son of Tukkoji. So far therefore as Pratapa Singh is concerned, though his father and mother were united according to a form known as sword marriage the union was not regarded as one which conferred on him the status of a legitimate son.
128. Much stress has been laid on the fact that Pratapa Singh did succeed to the throne and that his illegitimacy was no bar to succession. The succession of an illegitimate son, if he is a capable person, and there were no legitimate issue of proper ago or any ability, was an event not unknown in those troubled times. For example, there were cases of illegitimate sons succeeding where the legitimate is sues were weak or incompetent. Mihadaji Scindia, though an illegitimate son, sueif ceeded Junkoji and Jeswant Rao Holkar, though illegitimate, was ruler for several years. (Duff's History of the Maharattas and Sir John Maoolm's Central India.) It is also significant that, although Pratapa Singh was a major, he did not succeed at once. On the death of his brother Bava Saheb his widow Siyari Bai was placed on h the throne and it was only because there was no competent person to govern the e State that Pratapa Singh was installed by if the people. According to Exhibit B-141 he was raised to the throne by the army and the chief men in the State. The following e passage at page 777 of the Tanjore District manual which has been filed as Exhibit B-173 is instructive:
That Pratapa Singh was illegitimate is nowhere denied and that Saiyaji was a legitimate son, may, it seems be fairly assumed upon the authority of Duff. Mill, upon the authority apparently of the History and Management of the East India Company from an authentic M.S. account of Tanjore' ascribes all the revolutions between the death of Bava Saheb and the elevation of Pratapa Singh, as well as the latter event, to the Mahomedan commander Siiyid, and considers Orme, who gives a different version, to be in some particulars misinformed; but Orme's version that Saiyaji was deposed and Pratapa Singh was placed on the throne by the general concurrence of the principal men in the kingdom' is apparently accepted by the Tanjore Commission (their report 1799, Appendix) and seems more probable.
129. [His Lordship referred to the next three instances and held that they were not proof that a sword marriage confers legitimacy on the issue. With regard to the Mangala Vilas ladies, His Lordship held that the late Raja went through the form of a so called sword marriage with the mothers and grandmothers of defendants Nos. 4 to 11. His Lordship held that these ladies were permanently attached to the Raja's seraglio and were not mere dancing girls but that the sword marriage was not understood as conferring the status of legitimacy and that the nature of the treatment accorded to the Mangala Vilas ladies and children and the ceremonies performed by them were not sufficient to establish the contrary. His Lordship then proceeded:]
130. In estimating the evidence of treatment, it is necessary to bear in mind that the Mangala Vilas ladies were introduced into the seraglio, when they were young and were cut off frofti the rest of the world and were permanently annexed to the Raja's seraglio. The paternity of the Mangala Vilas children was never doubted by anybody and there can be little doubt that the Raja having no male issue of his own treated these children with considerable affection. The position in the Hindu households of permanently kept concubines is very analogous to the married wife who often resides in the same building.
131. In Yashvantrav v. Kashibai (1888) 12 Bom. 26, Nanabhai Haridas, J., observes:
The position of a deceased co-parcener's permanent concubine in his family is in some respects analogous though necessarily inferior to that of his widow not inheriting. They are both dependent members of the family and, as such, entitled to maintenance, as above stated. (1 Str. 171,174; 1 Norton 48, 51.) During the co-parcener's lifetime, if not even after his death, his concubine is by the Hindu Criminal Law regarded as his wife, for it ordains punishment as for adultery for any sexual intercourse with her by another as if she were his wife, and the ceremonial law also regards her in that light, for it declares the same length of impurity for her when he dies as for the death of a real husband.
132. The learned Judge evidently refers to verse 290 in the Vyavaharadhyaya of Yajnavalkya which is translated by Mandlik as follows:
A man (having intercourse) with an Avarudha (protected female slave) and Bhujishya (another's mistress) shall be required to pay a fine of fifty panas, even though intercourse with them be (in other respects) permissible.
133. The position of the Mangala Vilas was similar to that of an Avarudha Stree defined in Mitakshara as a woman who is prohibited by her master from intercourse with other men with an injunction to stay at home with the object of avoiding any lapse of service. In Briiidavcina v. Badhamani (1889) 12 Mad. 72 the question was whether a person who was living with a zamindar for a number of years was his wife or only a permanently kept concubine. The learned Judges Sir Arthur Collins, C.J., and Muttuswami Ayyar, J., observe:
The first of those questions is whether, as alleged by the respondents, Padmamala was the lawful wife of Padmanabha Deo by gandharva marriage. The Judge has recorded no finding in regard to it, but treated the matter as one of little moment. We observe, however, there is no satisfac tory evidence in support of the contention. None of the respondents witnesses deposed to the factum of a gandharva marriage between Padmamala and Padmanabha Deo, and there is no direct evidence at all on the point. It was no doubt in evidence that Padmamala was addressed as Maha Devi, that,she wore gold jewels on her legs, that she performed a ceremony called Bandapon which married women alone ordinarily perform and that she was the brother's daughter of Nila Patta Maha Devi, the senior wife of Padmanabha, admittedly a lady of the Kshatriya caste. But these circumstances are not in themselves conclusive on the question of lawful marriage, a ad although Padmamala was. the niece of the senior wife and taken by Padmanabha under his protection on her recommendation, yet it is by no means unlikely that her status was not higher than that of a concubine if she was only an illegitimate relation.
134. [His Lordship referred to the facts that talis were tied to the sword wives and that some of them observed sattee and proceeded:]
135. There is nothing in the ceremonial law or Shastras prohibiting permanently kept women in Hindu households from performing the various vrathams or ceremonies which married women perform; and as pointed out in the Brindavana v. Badha mani (1889) 12 Mad. 72 the performance of such ceremonies does not necessarily show that the women must have been married.
136. Some stress was laid on the fact that the women were called sword wives. I do not think the mere designation of sword wife raises any necessary implication of marriage.
137. [After discussing more evidence, His Lordship continued:]
138. One test of the legitimacy is the capacity to perform funeral ceremonies and sradhs. As observed by Sarvadhikari in his "Principles of the Hindu Law of Inheritance" (page 101), the importance of the Sradha ceremonies from a legal point of view cannot be over-rated. The competence of a person to offer these oblations forms the test of his title to the inheritance. It is admitted in this case that none of the Mangala Vilas sons performed the funeral ceremonies of the late Raja though on the date of his death he left no son by his married wives and bad made no adoption and that none of them performed the sradhs of any of the Bai Sahebas who died before the date of the adoption of Raiaram Ingle in 1863, Nobody thought of them in that connexion as being competent.
139. It also appears that both Serfoji and Sivaji not only established the women in two separate houses but also made provision for them by purchasing lands for the maintenance of the inmates of those two institutions. If the Kalyana Mahal and the Mangala Vilas ladies were the legally married wives of the Raja, there would have been no necessity for any such differentiation to make separate provision.
140. Authorities were cited to show that presumption of marriage ought to be raised when two people live together for several years as husband and wife and reference was made to Sastry Velaider Aronegary v. Sembucutty Vaigalie (1881) 6 A.C. 364 in support of the view that the mere fact that concubinage exists should be no ground for not applying the presumption of marriage from long cohabitation. I may stats that, though where nothing more is known than that persons have been living together as husband and wife and treated as such by the community for a long series of years, presumption of marriage may, if nothing I more appears, be drawn, the presumption will be considerably weakened and it will be altogether rebutted where facts are shown which make it more consistent with continued concubinage than with legal marriage. I may in this connexion refer to Ma Wun Di v. Ma Kin (1908) 35 Cal. 232, where the question was whether there was a valid marriage. Lord Robertson in delivering judgment of their Lordships of the Privy Council observes:
The case however, deserves attention, for there has been a strong appeal made to the general presumption of marriage arising from cohabitation with habit and repute. It is necessary, before applying this presumption, to make sure that we have got the conditions necessary for its existence. It is not superfluous to suggest that, first of all, there must be some body of neighbours, many or few, or some sort of public, large or small, before repute can arise. Again the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage. The differences between English and Oriental customs about the relations of the sexes make such caution especially necessary. Among most English people, open cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets "up, as a matter of fact, a repute of marriage. But in countries where customs are different, it is necessary to be more discriminating, more especially owing to the laxity with which the word 'wife' is used by witnesses in regard to connexions not reprobated by opinion, but not constituting marriage.
141. Treating the question merely from the point of view of presumption to be raised from persons living together, I think there is ample material on record to rebut the presumption. I have already referred to the various circumstances which in my view show that the Mangala Vilas ladies were treated as permanently kept concubines of the Raja and the Mangala "Vilas children were considered by the Government, the other members of the Royal family and by themselves until almost before the present suit, as illegitimate. Though there can be little doubt that their mothers were brought into the seraglio as unmarried girls and were continuously kept by the Raja in the Mangala Vilas Sadma without any access to the outside world and that defendants Nos. 4 and 5 and the fathers of defendants Nos. 6 to 11 are the sons of the Raja, I think their position is only that of illegitimate children. I agree with the Subordinate Judge that the parties are Sudras and the result of my finding that defendants Nos. 4 to 11 are illegitimate is that they will only be entitled to the shares which illegitimate children of a Sudra would get.
142. The next question is as to the caste of the parties. The case for defendants Nos. 4 to 11 is that the Tanjore Royal family are Sudras by caste, while the case for the other defendants is that they are Kshatriyas. The Subordinate Judge finds on the evidence that the Tanjore Rajas were Sudras by caste. He has dealt with the evidence with great care and minuteness in paragraphs 1292 to 1599 of his judgment and I see no grounds to differ from him.
143. It was conceded before the Subordinate Judge (see paragraph 1556 of the judgment) and also before us that caste is the result of birth and not of choice or volition, though a person may lose caste he cannot by any act of his rise to a higher caste.
144. Manu, Yagnavalkya and the other Smxiti writers expressly state that there are only four castes, namely, Brahmana, Kshatriya, Vaisya and Sudra. The first three are called Dvijas or twice-born (from dvi, two, and jayate, is born, the second birth being on the performance of the upanayana or the investing of sacred thread) and all the religions rites enjoined for them are performed with Vedic mantras. Manu says the three twice-born classes are the Brahma, Kshatriya and Vaisya but the fourth or servile (Sudra) is once born, that is, has no second birth from the Gayatri and wears no thread. Nor is there any fifth class-Chapter X, verse 4.
145. Yagnavalkya in verse 10 of the Acharadhyaya says:
The castes are the Brahmanas, the Kshatriyas, the Vaisyas and the Sudras. Only the first three of these are twice-born, the performance of the ceremonies beginning with the rite of impregnation and ending with the funeral rites in the cremation ground of these only is prescribed with the sacred formulas.
146. In Balambhatta's Gloss on the Sloka, the commentator says:
The word Dvija (twice-born) is a technical term retaining also its etymological meaning, namely, they are twice-born or re-generate for the investiture with the sacred thread is the second birth. All ceremonies of the higher castes are performed by reciting the sacred formulas, those of the Sudras are performed in silence and without such recitation.
147. It is clear that so far as the Sudra is concerned there is no Upanayana or investiture with the sacred thread and in the fact the non-investiture is the main ground of differentiation between the three higher castes and the Sudras.
148. The ceremony whereby the Brahmana, Kshatriya and Vaisya become initiated into the Gayatri or the sacred mantra and becomo twice-born is called Upanayana, which literally means bringing near, i.e., student near the teacher who instructs him in the sacred Gayatri verse and makes him Jit to receive instructions in the Vedas. According to Manu, Chapter II, verse 38, the maximum age for the performance of the Upanayana or the investiture of sacred thread is the sixteenth year for the Bahmanas, 22nd for the Kshatriyas and 24th for the Vauyas and in verse 39 Manu states that all the youths of these three classes who have not been invested with the sacred thread at the proper time become "Vratyas or outcastes, degraded from the Gayatri, and condemned by the virtuous" and he prohibits a Brahman even when he is in distress for subsistence from having any connexion with such a Vratya or impure man Yagnavalkya in verse 39 of the Acharadhyaya also gives the same age and in verse 38 states that after the age is passed the youths of the three classes, namely, the Brahmanas, Kshatriyas and Vaisyas, for whom no Upanayana has been performed, fall out-castes from religion, degraded from the Gayatri, and become Vratyas, unless the ceremony which is called Vratyastoma is performed.
149. In the Grihya Sutra of Asvalayana he describes Vratyas as being impure and unfit for Upanayana, for receiving the Vedas, and for intercourse as to food, worship, etc. But he nowhere expressly provides expiation for them (see Mandlik, page 165).
150. All the text-writers and commentators age agreed that in the case of Sudra there is not only no Upanayana or the investiture of sacred thread which is the exclusive privilege of the three higher classes but there is also no recitation of the Vedic mantras in respect of any rites which they are enjoined to perform by the Shastras.
151. As observed by the Subordinate Judge in paragraph 1326 of the judgmant three distinct cases appear to have been set up during the trial of this suit. The first is that all Mahrattas are Kshatriyas; the second is that Saunavagulis or the 96 families among the Mahrattas are Kshatriyas; and the third is that Sivaji and the relations of the Royal family known as Vajratmas are Kshatriyas.
152. As regards the first point, reference was made to the Histories of the Daccan to show that the Mahrattas were really the descendants of the Rajput clans who, owing to the Muhammadan conquest of Northern India were thrown back on the Decean. Reference was male to Elphinstone's History of India, Vincent Smith's Ancient History, Duff's History of the Mahrattas and Bandharker. But it is difficult to establish any definite historical connection between the Mahrattas who sprung into fame during the period of the father of Sivaji the Great and the Rajput clans who were in Northern. India during the period of the first Muhammalm in vasion and during the time of Ala-ud-din Khilji's invasion of the Deccan.
153. The origin of the term' Mahratta has been the subject of speculation and various derivations - some of them entirely fanciful - have been given to the word. On the one side, we have the view that the word Maharashtra is derived from Maha, great and Ritha, Chariot-warrior or from the Bishtrakutas; and on the other, that word means the country of the Mahars, a low caste tribe (see Russel on Castes and Tribes, Vol. 4, page 199).
154. It has been argued that the Mahrattas are descendants of the Rashtrakutas. Mr. Vincent Smith is of opinion that they were indigenous tribes of the Deccan and not Rajputs. We learn from history that on the fell of the Andhra Kings 200 A.D. the Rashtrakutas became the rulers of the Deccan and that about the sixth century A. D. they were in turn overthrown by the Chalukyas whose greatest ruler was one Pulakesi II - the rival of Harsha of Kanouj about 750 A.D. Mr. Vincent Smith is of opinion that the Chalukyas though provided by obsequious Brahmans with a first class Hindu pedigree going back to the hero Rama of Ayodha really were of foreign origin and belonged to the Huna-Gurjara group of invading tribes (page 200 of Oxford History of India). The Chalukyas were overthrown by a new Rashtrakuta dynasty; about 900 A.D. the western Chalukyas again came into power and continued in power till the twelfth century. In the closing years of the twelfth century, the Yadavas of Devagiri extended their power, but in 1294 the Afghans under Ala-ud-din Khilji conquered the last of the Yadavas and razed his capital Devagiri to the ground and thereafter the Deccan came under the rule of the Emperors of Delhi. It is suggested that the Mahratta clan of Jadavs are descended from the Yadavas. but beyond similarity of name there is nothing to support this theory. There was a class of shepherds called the Yadavas, and there is as much, if not greater, probability in the Jadavs being descended from them. It is also worthy of note that no surname corresponding to Jadav has been pointed out among the ancient Rajput families. lb is stated in the Satara Gazetteer that "as far as is known the Devagiri Yadavas passed from the south northwards, and it is possible they were not northerners but southerners, Kurubars or other shepherds, who, under Brahman influence, adopted the great northern shepherd name of Yadav".
155. The Bhamani Kingdom which continued from 1347 to 1526 was founded by Hussain Ganga as a result of revolt against the Delhi Emperor. After 1526 the kingdom broke up into five Muhammadan principalities, of which Bijapur and Ahmednugger formed the principal ones. The kingdom of Ahmednugger was ultimately conquered by the Mughal Emperors of Delhi. In 1600 the capital was conquered by the Mughal Emperor and thereafter the kingdom fell on evil days. In this troubled period Maloji, the grandfather of Sivaji the Great, entered the service of Murtuza Nizam Shah the King of Ahmednugger, and the rise of the Mahrattas as a nation is said to commence from the time of Maloji, father of Sahaji, the father of Sivaji the Great, though it was the genius of Sivaji that organized the Mahrattas into a nation. It is difficult to connect the Mahrattas whom Sivaji welded into a nation with the Rashtrakutas in the Deccan who reigned in that part of India and were overthrown, as we do not hear of the Rashtrakutas from A. D. 973 when they were overthrown to 1600 when the rise of the Mahratta power in the Deccan began. Nor is there any definite historical connexion between the Rashtrakutas and the Rathor tribes of Rajputs and Vincent Smith is of opinion that the Bashtrakutas have nothing to do with the Rajput tribes. Elphinstone states that the Mahrattas were more of the lower orders of Hindustan than the southern neighbours in Kanara and contrasts them with the Rajputs in character and physique. Speaking of the Mahratta Chiefs at a time when the Mahrattas rose into power, Elphinstone observes:
The Chiefs in those days were men of families who had for generations filled the old Hindu offices of Heads of villages or functionaries of districts and had often been employed as partisans under the Government of Ahmednugger and Bijapur. They were all Sudras of the same caste with their people, though some tried to raise their consequence by claiming an infusion of Rajput blood.
156. Later on speaking of Maloji he says:
If any Mahratta had claimed a Rajpout descent, it was the family of Jadu. The name is that of one of Rajput tribes, it was borne at the first Muhammadan invasion by the Ruler of Devagiri, the greatest Prince of the Decean, and it is not improbable that the protector of Maloji (who was the Deshmukh of a district not far from Devagiri) may have been descended from that stock. Whatever was his origin, Lukji Jadu Rao had attained to a command of 10,000 men under Malik Amber and was a person of such consequence, that his desertion to Shah Jahan turned the fate of a war against his former master.
157. I do not think that a reference to the History of the Decean supports his view that all Mahrattas are Kshatriyas or that there is any strong probability that the Mahrattas are descendants of Rajput clans.
158. The result of the recent researches has been embodied by Mr. Enthoven of the Bombay Civil Service in his work "Tribes and Castes of Bombay" and by Sir Herbert Risley, Director of Ethnography for India, in his work "The people of India." Mr. Enthoven in Vol. Ill of his book observes at page 8 as follows:
The word Maratha covers three classes that were probably one in origin but are now distinct. These are-
(1) Marathas proper, the Chiefs, landowners, and fighting Marathas of the Deccan and Konkan, claiming Kshatriya rank, eschewing widow-remarriage and socially superior to the cultivating classes, from whom, however in places, they will take girls in marriage.
(2) Maratha Kunbis or cultivators also known as Kulvadi.
(3) Maratha occupational castes of the following : Bhandari, Lohar, Mali, Teli...
159. These would be classed as Marathas when found in other parts of India, and have certain features of special significance in common with the first two groups.
160. It has already been noted that Marathas proper claim to be Kshatriyas, the second of the fourfold divisions of Manu. As proofs in support of this claim they state that they belong to the four ancient Kshatriya royal vamsbas or branches, viz., Suryavamsha, Somavamsa, Bhahmavamsa and Seshavamsha, that they have the ninety-six mythological Kshatriya families, or kuls, that many of their kul or family names are common clan names of Rajputs (who are supposed to be the modern representatives of the ancient KsVatriya race), that there is historical evidence to show that marriage connexions were formed between royal Rajput houses and the rulingMaratha families, that like the Rajputs they observe purdah, wear the sacred thread and prohibit widow re-marriage, that they have bards or Bhats like Rajputs, and that as among Rajputs, the Nhavi or barber performs the function of serving water at their feasts, although he is considered comparatively unclean by the surrounding population in the Decean. But against the above it can be said that when a caste or a portion of a caste rises in the social scale on account of worldly prosperity, it adopts a mythological pedigree like the four vamsbas from which the Marathas claim descent, that as shown later on, there is a great difference of opinion as to the names of the ninety-six kuls claimed by the Marathas (in fact the number far exceeds ninety-six), that the Rajputs have formed marriage connexions even with Koli and Bhil chiefs who have not the Jeast pretensions to Kshatriya blood, and that it is the universal practice among the lower castes, when they wish to rise in the social scale to imitate the higher by prohibiting widow marriage, wearing the Sacred thread, and adopting other similar customs. Admitting the similarity of clan names; this is by no means necessarily a proof of similarity of descent. The purdah system, the employment of family genealogists or Bhats, etc., can very easily be adopted by a caste ambitious to be classed as Kshatriyas and imitating with that view Rajput manners and customs.
161. The common belief in Maharashtra regarding the origin of Marathas is that there is little or no difference, so far as caste is concerned, betwoen Marathas and Kunbis. Some indeed, among whom are Marathas themselves, are of opinion that the two classes are one and the same. The line of demarcation between the two communities is not a hard and fast one, as intermarriages between Well-to-do Kunbi families and the ' lower sections of Marathas are not infrequent. Such intermarriages usually take the form of a Maratha boy being married to a Kunbi or Kulvadi girl. Such marriages are common in remote parts of the Presidency. On the other hand, Maratha girls would not be given in marriage to Kunbi boys. Thus the Marathas proper assert their social supremacy, and though akin to Kunbis, they must be considered distinct. Kunbis prefer the designation Maratha to that of Kunbi, as more honourable. The Kunbis, however, do not lay any pretensions to Kshatriya origin. They are as a rule connected with field work, while the Marathas, though they may be mere cultivators, more often follow other avocations and regard cultivation as a secondary profession on which they may fall back if they are unsuccessful in other lines. Hence it appears that Kunbis and Marathas are differentiated rather by wealth and social status than by any hard and fast caste distinction. Socially the Maratha is the superior of the Kunbi, and this is evidenced by the facts that while Kunbi widows remarry, Maratha widows do not, that while Maratha ladies of recognized rank observe purdah, Kunbi women do not observe it, and that while Maratha ladies insist on gold in preference to silver ornaments, Kunbi women are content with any that they can get.
162. It is not possible in these pages to deal finally with the controversy that exists regarding the origin of Marathas proper and their relation to the other Maratha divisions in the Presidency. But in the course of the survey some important evidence has been collected dealing with the social structure of Marathas of all three classes, and indicating reasons for assuming that they had a common origin." The author then goes on to refer to Devaks and Balis and gives a list of Devaka found among Marathas proper and Maratha Kunbis with other castes.
Ajsal Marathas claim to belong to four main branches or vamshas each containing twenty-four kuls or families. They are-
(1) Brahmavamsha or the Brahma branch.
(2) Sheshavamsha or the Serpent branch.
(3) Somavamsha or the Moon branch.
(4) Suryavamsha or the Sun branch.
This classification has evidently been adopted from the mythological divisions of to Kshatriya race in support of their claim to Kshatriya origin. But it has not been found possible to assign definitely to each branch the twenty-four families attributed to it, neither are the names of ninety-six families or kuls the same in all places. In fact, if all the names of the ninety-six kuls are compiledin one list, the total far exceeds ninety-six and many of the names disclose identity with the Kunbis, whom the aristocratic Marathas consider to be distinct from them.
163. He then gives a list of the Kuls, and points out that the list of kuls given by one author does not agree with that given by another and concludes as follows:
The above remarks are made by way of showing that the claim of the Marathas to belong to the ancient ninety-six families of the Kshatriya race has no foundation in fact, but must have been advanced after they rose to power.... But similarity of surnames by no means implies similarity of race...as surnames such as Chavans, Cholkes, Mores, Pavars, Shelars and Yadavs among Kolis, are adopted by Kolis, Dhangars, Mahars, Malis Ramoshis, Mongs and several wandering tribes.
164. There are cases where even Brahmans have assumed the surnames of their Maratha patrons, e.g., the Ghorpades of Inchhalkaranji, the Dhamdheres of Poona, etc.
165. The majority of the castes do not know to which gotra they belong, their guides in this respect being the caste priests and printed books. And even among these authorities there is great confusion in the matter of assignment of kuls to gotras. Thus, according to one account, the Mores belong to the Gautam gotra, while another account assigns them to the Bharadwaja gotra. Sameness of gotra is not necessarily a bar to intermarriage, the chief restrictions in this respect still being sameness of kul and Devak. This would seem to suggest that the gotras, like the four vamshas and kuls, were adopted by the tribe after they rose in social dignity."
166. Sir Herbert Risley at page 87 of his book observes as follows:
If the Marathas can be described as a caste, their history and tradition certainly stamp them as a caste of the national type.... According to Mr. Enthoven (Census report of Bombay, 1901, Vol. I, p. 183 et seq.), the Bombay Marathas may be classified as a tribe with two divisions, Maratha and Maratha Kunbi, of which the former are hypergatnous to the latter, but were not originally distinct. It remains to be explained that the Kunbis also consist of two divisions, Desh Kunbis.... and Konkani Kunbis.... Intermarriage between these divisions is not usual. The barrier, however, seems to be purely geographical. It may not withstand the altered conditions due to improvements in communications, and it is not apparently based on any religious prohibition of intermarriages.... The highest class of Marathas is supposed to consist of ninety-six families who profess to be of Rajput descent and to represent the Kshatriyas of the traditional system. They wear the sacred thread, marry their daughters before puberty and forbid widows to marry again. But their claim to kinship with the Rajput is effectually refuted by the anthropometic data now published, and by the survival among them of Kuldevaks or totems such as the sun-flower, the Kadamba tree (Nauclea Kadamba), the mango, the conch-shell, the peacock's feather, and turmeric, which are worshipped at marriages and at the ceremony of dedicating a new house, while their close connection with the Kunbis is attested by the fact that they take Kunbi girls as wives, though they do not give their own daughters to Kunbi men. A wealthy Kunbi, however, occasionally gains promotion to and marries into the higher grade and claims brevet rank as a Kshatriya. The fact seems to be that the ninety-six superior families represent Kunbis who came to the front during the decline of the Mughal Empire, won for themselves princedoms or estates, claimed the rank of landed gentry, and asserted their dignity by refusing their daughters to their less distinguished brethren.
167. It was admitted in argument that the Kunbis who are a cultivating tribe are Sudras; and it is also admitted that the Kunbis have got the same division into 96 families. There is therefore not much force in the contention that the adoption of surnames as Bhonsle, Nimbalkar, Jadhav, etc., raises any presumption of Kshatriya origin, even assuming for argument's sake that some of the Mahratta families with those surnames were of Rajput descent.
168. The contention that all Mahrattas are Kshatriyas and that consequently Sivaji and his descendants must be assumed to be Kshatriyas is, in my opinion, devoid of all historical foundation.
169. I shall now deal with the argument that even if all Mahrattas are not Kshatriyas, the Sannavagulis or the members of the 96 clans are Kshatriyas and that the Rajas of Tanjore who belong to the Bhonsle family which is one of the 96 families must necessarily be of Kshatriya descent. The term "Sannavagulis" means 96 Kuls or families. In Exhibit B-140 which is an inscription of the year 1803 it is stated that from the Solar and Lunar races rose up a Kshatriya family which consists of 96 branches. Then the 96 branches are named, the first being the Bhonsle family from which Sivaji is said to have descended. I have already pointed out that the Kunbis Who form the agricultural portion of the Mahratta community are Sudras and that they also have the same divisions into 96 clans. This is clear from the extract from Mr. Enthoven's book which. I have already set out in extenso and from a reference to the Satara and Kolhapur District Manuals. It is stated at page 76 of the Satara District Manual that almost all the leading tribal surnames such as Cholke, More, Povar, Shelar and Yadav are found, besides among Kunbis who do not appreciably differ from Mahrattas. A large body of evidence in this case is to the effect that the Sunnavagulis in Tanjore far from being Kshatriyas are Sudras. Vagoji Rao, sixteenth witness for defendants Nos. 1 and 2, who is the brother-in-law of the late Maharaja Sivaji states that there are no intermarriages between the Sahebs of the Royal family and Sannavagulis. He classes the Sannavagulis along with Appa, Akka and other divisions who are admittedly Sudras. As regards funeral ceremonies, he states that the ordinary Mahrattas make the pindam or offerings to ancestors of flour while the higher classes make it of cooked rice. Thirty-first witness for defendants Nos. 1 and 2 Savalairam Sahet Soorve who is also related to the Royal family states that all Mahrattas are not Kshatriyas, that the word "Mahratta" k a general name including Kshatriyas and some minor castes and that the latter are SannavaguliB, Satyavagulis and Mangala. vilasam. The twenty-first defendant who is the great-grandson of the sister of Sivaj and who was examined as forty-sixth wit ness for defendants Nos. 1 and 2, states:
The Mahrattas who were cart-drivers were not of my caste. They are said to h Sannavaguli Mahrattas. We are no Sannavaguli Mahrattas, They are no Kshatriyas or Sudras. I do not know if they are Vaisyas or Sudras. I do not know their caste. They wear Poonool (sacred thread).
170. He expressly disclaims the suggestion that he is a Sannavaguli. Manoba Saheb, twenty-sixth witness for defendants Nos-1 and 2, who is also related to the Royal family, states:
There is a class called Sannavagulis. They are Mahrattas. I do not know if they are Dvijas (twiceborn). We do not intermarry.
171. The Subordinate Judge deals with this part of the case at pages 474 to 479 of his judgment, and I think the evidence is totally insufficient to prove that because the Tanjore Rajas claim to belong to one of the 96 families, they must necessarily be of Kshatriya descent.
172. All the available authorities show that Babaji, the great-grandfather of Sivaji, was a patel or village headman of a village in Poona District. It is not shown, nor was it suggested before us, that Babaji was anything more than a cultivator and village headman. His two sons, Maloji andVittoji, not satisfied with village life and being ambitious, enlisted themselves in the service of Lukhji Jadhav who held military service in the Ahmednugger kingdom, and entered his service on the modest salary of five hons (pagodas) each. Takakhav, in his "Life of Sivaji Maharaj" which has been referred to during the course of the argument, states that Maloji had two sons Shahaji and Serfoji, and Shahaji who was the father of Sivaji was a handsome and intelligent youth and was ultimately married to the daughter of Jadhavrao. An account is given as to how the statement made by Jadhav in jest that Shahaji and his (Jadhav's) daughter who were then little children would make a handsome couple was seized upon as a promise. Waring in his "History of the Mahrattas," states that that objection was taken by Jadhav's wife who upbraided him with the folly of harbouring even a thought of giving his daughter to a wretched Cunbi, the son of a common horseman, and that Maloji and Vittoji thereupon were discharged from the service and were again under the necessity of restoring to their former occupation of husbandry. Takakhav also states that, owing to Maloji treating the jest of Jadhav seriously, he and his brother were discharged from service and "were forced to return to their paternal homestead at Verul, again to become farm hinds and till the land." Maloji subsequently became wealthy. The Mahratta Chronicle credits this to a divine interposition and to the finding of a secret treasure disclosed in dream by the Goddess Bhavani, while Duff and other historians attribute it to the more probable and prosaic result of Maloji having taken to plunder on his own account and having amassed a fortune. However this be, Maloji got rich and prospered and ultimately his son was given in marriage to Lukhji Jadhav's daughter. The Mahratta Chronicle states that Maloji, after he became rich, enlisted horsemen and infantry and began to give trouble to the Bijapur Sultan, that he defiled a mosque and that the Sultan, to put a stop to this, compelled Jadhav to give his daughter in marriage to Maloji's son Shahaji - see page 280 of Justice Ranade's "Rise of the Maratha Power." Pressure brought to bear by the Sultan and not the recognition by Jadhav of Maloji's high Caste was thus the reason for the alliance which wasonce rejected with scorn being subsequently entered into. Shahaji, both with the aid of the connexion so formed and by his own powers and genius, rose to considerable eminence in the Courts of Ahmednugger and Bijapur, and Sivaji the Great extended Shahaji's conquests and founded the M thratta Empire. The humble occupation of Sivaji's grandfather and his ancestors who were village headmen and cultivators of the soil probabilizes the view that they were really of Kunbi origin. Coming to Sivaji the Great, we find that the first time that any Kshatriya origin was claimed for him or any reference was made to his kinship to the Rajput house of XJdaipur was at the time of his coronation which took place in 1674. The circumstances attending the coronation, I think, throw a great deal of light upon the origin of the caste of Sivaji.
173. Sivaji, from the outset of his career, set himself forward as a champion of Hinduism against Moslem oppression and during the early years of his career there can be little doubt that the fanaticism of Aurangazeb and his ruthless destruction of Hindu temples and the persecution of the Hindus led to a strong feeling that Hindu forces should be organized under a capable leader and effective resistance offered to Aurangazeb who was attempting to conquer the Decean. Sivaji's success marked him out as the person who was best capable of leading the Hindus. Professor Jadunath Sarkar, one of the foremost authorities on the period of Aurangazeb and Sivaji, whose works relating to the two monarchs have received very high praise from eminent eastern and western scholars, in Chapter IX of his "Shivaji and His Times," gives with great clearness the reasons that induced Sivaji and his advisers to think of his coronation. Though one would have expected that, if Sivaji was a descendant of the Rajput chief and a Kshatriya, no objection would have been raised to his coronation, it appears from all accounts that Sivaji had to overcome strenuous opposition based on his being a Sudra. Professor Jadunath Sarkar, whose work "Sivaji and His Times" embodies the latest researches, at page 267 (1st Edition), says:
But there was one curious hindrance to the realization of this ideal. According to the ancient Hindu scriptures, only a member of the Kshatriya caste can be legally crowned as king and claim the homage of Hindu subjects. The Bhonsles were popularly known to be neither Kshatriya nor of any other twice-born caste, but mere tillers of the soil, as Shivaji's great grandfather was still remembered to have been. How could an upstart sprung from such a Sudra (plebeian) stock aspire to the rights and honours due to a Kshatriya? The Brahmans of all parts of India would attend and bless the coronation of Shivay, only if be could be authoritatively declared a Kshatriya. It was, therefore, necessary first to secure the support of pundit, whose reputation for scholarship would silence all opposition to the views he might propound. Such a man was found in Gaga Bhatta of Benares, the greatest Sanskrit theologian and controversialist then alive, a master of the four Vedas, the six philosophies, and all the scriptures of the Hindus and popularly known as the Brahmadeva and Vyas of the age. After holding out for some time, ho became compliant, accepted the Bhosla pedigree as fabricated by the clover secretary Balaji Avji and other agents of Shiva, and declared that that Rajah was a Kshatriya of the purest breed descended in unbroken line from the Maharanas of Udayapur, the sole representatives of the solar line of the mythical hero Ramaohaadra (Dig. 410-12): His audacious but courtierly ethnological theory was rewarded with a huge fee, and he was entreated to visit Maharastra and officiate as high priest at the coronation of Shiva.
174. At page 271 he states how Sivaji had to be purified and made a Kshatriya. It is admitted that Sivaji till the date of his coronation, i.e., till his 47th year, had not been invested with the sacred thread and his ancestors never seem to have gone through that ceremony. Professor Sarkar, at page 271, observes:
But one great defect had to be removed before his coronation could take place. He had to be publicly purified and made a Kshatriya.' On 28th May he performed penance for his ancestors and his own sin of omission in not having observed the Kshatriya rites so long, and was invested by Gaga Bhatta with the sacred thread, the distinctive badge of the twice-born castes like the 'pure' Kshatriyas of Northern India.
175. In this connexion I might refer to an account of the coronation in two Mahratta histories published by Mr. Surendranath Sen under the authority of the Calcutta University. The first is Siva Chhatrapati (life of Sivaji) by Sabhasad Bakhar who was a contemporary of Sivaji and who says he wrote the book at the request of Raja-ram, the son of Sivaji the Great. Speaking of the coronation he says at page 113:
The one Vedmurfci Rajsri Gay a Bhat drawn by the Baje's fame came to see him. The Bhat Gosavi was a great scholar, well versed in the four Vedas and six Sastras and well practiced in the Yoga Skilled in astrology, mantras, and. all (branches of) all learning; he was the Brahma Dev of the Kali age; - such a learned man was he; - the Raja and the sarkarkuns went forward to receive him, and brought him with (all) honours. He was worshipped with the offerings of jewelled ornaments of many varieties, palanquins, elephants, horses, and immense property, Gaga Bhat was very much pleased. In the opinion of the Bhat Gosavi, (as) the Musulman Badshah reigned (stated on a throne with an umbrella over his head), and Sivaji, though ho has subdued four Badshahis and possessed seventy-live thousand cavalry, infantry, forts and strongholds, had no throne, the Maratba Raja should (also) be the Lord of the Umbrella (Chattrapati); so he reasoned. And the Raje also approved (of it.) All the principle men were summoned and when consulted gave their approval. Then the Bhat Gosavi said (that the Baje) should be installed on a throne. Then an enquiry being held about the Raje's family, it was found that the Raje was a Suddhakshatriya; a Sisodia family had come from the North to the Deccan, that was the Raja's ancestral family. Having previously decided that the sacred thread ceremony should be performed as the Kshatriyas of the north assumed the sacred thread, the Bhat Gosavi conferred the sacred thread on the Raje at a holy place. (The Raja) was made a Suddhakshatriya before (the coronation). Much wealth was distributed in charity. Fifty thousand Brahmans learned in the Vedas were assembled from the borne provinces, as well as from foreign territories and holy places of great sanctity. They were all made to stay. Every day they were fed with sweets. Then for the coronation a throne was made jewels of great value were sought from among the nine varieties of priceless jewels that were in the treasury, and set in the throne.... Many gold lotuses inlaid with gems of nine varieties and various other gold flowers and clothes were distributed in abundance... To Gaga Bhat (who had officiated as) the chief priest was given immense wealth. The total expenditure amounted to one Kror and forty-two lakhs of Hons.
176. In Sen's book there are some extracts from Sivadigvijaya and Chitnis Bakhar and at page 241 an account is given of Sivaji's coronatioc According to this account Sivaji was advised that there was a very learned Brahman named Gaga Bhatta in Benares and that be ought to be consulted. The narrative then proceed as follows:
Thereupon Balaji Baba submitted to the Maharaja that there was a very great Kashi Brahman named Gaga Bhatta, somebody should be sent to him to obtain from him the Sastrik injunctions and that it would be well to get the ceremony performed by him. The Maharaja was highly pleased and commissioned Balaji Baba to despatch a Karkun to Kasi and to pay what money was necessary from the treasury. Ramchandra Babaji was accordingly sent. He went with the Maharaja's letter and explained his mission. "Whereupon the Bhatta replied that be would answer after proper deliberation. Several Brahmans of the place, great and small, were accordingly consulted, and the Bhatta answered that only the Kshatriyas were entitled to Chhatra and sinhason, the Sudras were not.... For a year and a half Ramchandra Babaji pleaded that there were so many Sudra kings without any knowledge of Kshatriya rites, but to no avail. Thereupon Balaji Avji wrote to Ramchandra to enquire on what grounds the Chhatra and sinhason had been conferred on the Udayapur Royal family, with whom the Bajah was connected.... The Maharaja, however, remarked, ' How is it that one who does good to the subjects and establishes the religion should have no right (to Chhatra and sinhason). He who has power is really a ting. Are not many kings of low origin enjoying sovereignty? In what respects do they behave like the Kshatriyas.
177. Pausing here, I may observe that it is significant that Sivaji is represented as laying no claims to Kshatriya descent. He rather advances the argument that a low decent is no obstacle to the coronation as many low born kings have been sovereigns and that power is after all the test of kingship. It is also clear that it required a year and a half to persuade the Brahmans to consent and it is probable that the Rajput pedigree was created during that period.
178. These two accounts as to the coronation throw a great deal of light on the claims of Sivaji to the Kshatriya origin. It seems to me to be fairly clear that this claim of Rajput descent from the Udayapur family was made for the first time for the purpose of enabling Sivaji to be crowned in the same manner as the Kshatriya kings were. It is also clear that there was very great difficulty in inducing Brahmins to consent to the claim of Kshatriyaship made on behalf of Sivaji and to crown him with Vedic rites and that it required a lot of persuasion and an immense amount of expenditure before the Brahmans would give their reluctant consent.
179. The late Mr. Justice Telang, a great oriental scholar in an essay by him entitled "Gleanings from Maratha Chronicles," published as an appendix to Justice Ranade's "Rise of the Maratha power" observes:
But from those which relate to Shivaji himself, it rather appears, if we read between the lines, that the claim set up on his behalf to be of the Kshatnya caste was not universally regarded as really and truly tenable, although from considerations of policy and expediency it might be conceded. From the Biographies of Shivaji by Krishnaji Anant Sabhasad,and by Chitragupta, it seems to follow that the search for the origin of Shivaji's family which resulted in the discovery that he belonged to the Sisodo clan of Rajputs who reigned in Udayapur, was not commenced until after the idea of a formal installation (or Abhise-ka) had been started. And Malhar Ramrao Chitnis's narrative, although it proceeds on the assumption of the fact as already established, rather indicates that Gaga Bhatta, the great Pandit of Benares, whose services were put in requisition for the installation ceremonies, had some considerations of policy put to him before he was persuaded to join in those ceremonies. Thoy had also to strain a point, when as a preliminary to the installation, the third ceremony essential for a Kshatriya was performed on Shivaji at a time when he was forty-six or fifty years old, and had already had two sons - an irregularity, which also was, we are told, expressly assented to by all the Brahmans and Pandits. How the Brahmans and Pandits worked their way to this decision none of our authorities states. Further, it is remarkable that none of those authorities anywhere mentions the performance of the thread ceremony upon any of the members of Shivaji's family, except the ones who were installed on the gadi, and then that ceremony is mentioned only in connection with the installation ceremony. In view of these facts, it may be permissible to doubt whether the statements of both Krishnaji Anant Sabhasad and Malhar Ratnrao Chitnis, about Shahaji claiming to be a Rajput of the Sisode clan, or about Jayasing Mirza Raja of Jeypore acknowledging Shivaji as a Kshatriya and dining with him before the installation, deserve to be entirely trusted Taking the whole evidence together, it looks like a case of a more or less deliberate manipulation of facts and religious rules, in aid, of a foregone conclusion adopted for a purely political purpose.
180. As regards the Rajput ancestry, I do not think there is very much to support it. Lieut.-Col. James Tod in his "Annals and Antiquities of Rajasthan" Vol. I, refers to the Udayapur ancestry of Sivaji, According to Tod, Vol. I page 286, which has been marked as exhibit B-176 when Ala-ud-din Khilji in 1275, sacked Chitore, Ajeysi is said to have escaped with Hamir, the minor son of his eldest brother. Ajay Singh's son Sajan Singh is said to have left for Deccan to carve his fortune. So that there must have been an unbroken line of descent between 1270 and Sivaji's birth in 1627. Tod refers to a genealogy of Sivaji which he says was obtained from the Bhats or Troubadours of Me war. The statements of Bhats can hardly be accepted as of much historical value. It is well known that in India bards and poets will exalt the lineage of a liberal patron. There is, however, very little, historically, to support this genealogy which was for the first time thought of at the time of Sivaji's coronation. Though Tod will go back so far as 1275, Waring in his "History of the Marathas" says that Shahaji, the father of Sivaji, was an illegitimate descendant from the Rana of Udayapur and that Babaji Bhonsle, grandfather of Sivaji, upon the death of his father, moved from Udayapur into Kandesb. This story does not agree with the account of Tod as the migration from Udayapur is put in by Waring as only three generations from Sivaji. Mr. Justice Ranado in his History observes at page 46:
It is in the spirit of the same fond superstition that native historians trace for Sivaji a fabled descent from the Royal house of Udayapur.
181. It is significant that in Exhibit B-141 there is no reference made to the descent of Sivaji the Great from the Ranas of Udayapur though, if it were a fact, it is hardly likely that the Rajas of Tanjore would have omitted to mention, among the numerous details which they give of the ancestry, so important a connexion.
182. Though commissions were taken out to examine witnesses in Kolhapur and other places no attempt was made to examine any witness in Udayapur to show that the families of Sivaji and the Rana of Udayapur were related. Reference has been made to a statement by Mr. Enthoven in the Bombay Census Report that a Rana of Udayapur admitted Sivaji's claim to Rajput descent, but no authority is given for this statement and if it is true could easily have been proved by preference to the genealogies preserved in the State. Colonel Tod gives the statements of Bhats or Troubadours as his authority for the statement of Sivaji's ancestors being descendants of a branch of the Udayapur family. The rhapsodies of bards are not of much historical value. No attempt has been made to get any evidence from Rajputana of the Rajput connexion claimed for the family of Sivaji.
183. I may also point out that there has been no case of intermarriage between the members of the Royal family of Odayapur (however remote they may be connected With the Royal family) and the family of Sivaji or any of his descendants. It seems to me to be extremely unlikely that if Sivaji was really i elated to the Ranasof Odayapur, there would have been no alliance considering that the Empire of Sivaji and his descendants was certainly very much more extensive than that of the Ranas of Odayapur. I agree with the Subordinate Judge in his conclusion that no reliance can be placed on the supposed connexion of Sivaji with the Odayapur family.
184. It is argued that the objection of Sivaji's coronation was due to the fact that there was a belief at the time that in the present age (Kaliyuga) there were no Ksbatriyas, but only two castes, namely, the Brahman and the Sudra. It is argued that it was this belief that prevented the Brahmans from consenting to Sivaji's coronation. Reference was made to the sloka in the Bhagavathapuranam wherein it is stated that the Nandas were the last of the Ksbatriyas. Reference was also made to the legend that Parasurama, the contemporary of the avatar of Vishnu, Sri Rama, destroyed all the Kshatriyas. I may state in passing that the theory as to there being no Kshatriyas was referred to and overrled in Chuoturya Run Murdun Syn v. Sahub Purhuald Syn (1857) 7 M.I.A. 18. There is no doubt that this extreme theory is, like several other extreme theories, held by some Brahmans who want to exalt themselves denying rights to other castes. For example, reference is made to it in the Sudra Kamalakara, and defendants' eighty-sixth witness Venkatarama Ayyar says that in his opinion whosoever is not a Brahman is a Sudra. But this view hag never been adopted by the Brahmans as a working rule or enforced. I may here point out that this theory that there were no Kshatriyas in the Kaliyuga or the fourth cycle which commenced over 4,000 years ago does not find a place in any of the books dealing with Hindu Law. Neither in Mitakshara which was composed in the 11th century A. D. nor Dayabhagha or Mayukha which were written much later is there any reference made to the absence of the Kshatriya caste. On the contrary, all the Smriti writers and commentators state as a fact that the four castes, namely Brahman, Kshatriya, Vaisya and Sudra, exist in the Kali age. There have been coronations of numerous kings and it is nowhere suggested that objection was taken to the coronation of Hindu Emperors because of the supposed nonexistence of the Kshatriyas in the Kali age and of the fact that all the kings were Sudras, owing to there being only two castes, the Brahman and the Sudra. History records the crowning of several Emperors like Vikramaditya, Bhoja, Harsha and others. So far as the Puranas are concerned, they are works several of which were written about the 6th century A. D. and some of them later, and though they are the store-houses of Hindu mythology and several of them are sectarian in character, they have not influenced to any great degree the rules of conduct or the division of castes which are laid down by the Smriti writers and by the numerous commentators thereon.
185. In the case of Sivaji we have the undisputed fact that his greatgrand father was only a village headman and cultivator, that neither Sivaji's father, grandfather or great-grandfather had the Upanayana ceremony, which is the distinctive ceremony conferring the status of twice born, performed to them, that though Sivaji was 47 or 50 years old at the time of his coronation and bad been married and had children, the Upanayana ceremony which under the Sastras had to be performed before he completed his 22nd year if ho was a Kshatriya, bad not been performed to him till then and that it was only performed at the time of his coronation for the purpose of enabling him to be crowned.
186. When it is borne in mind how strict and rigid orthodox rules of caste were at that period and how jealously caste privileges were maintained, the non-performance of the chief rite of Upanayana by Sivaji's father, grandfather and great-grandfather which confers the status of Dvija or twice-born and differentiates the three upper classes from the Sudra, is significant. I have already pointed out that one great division of the Mahrattas is the Kunbi class or the cultivating classes who are admittedly Sudras and who have no Upanayana ceremony performed to them and that they have surnames like Bhonsle, Nimbalkar, etc. Under these circumstances, it seems to me that the probabilities all point to Siyaji's ancestors being of Kunbi descent. This is the view that eminent authorities whom I have referred to have taken and a view which I consider to be most consonant with the proved facts of history.
187. It was suggested that the coronation of Sivaji with Vedic rites and with the concurrence of eminent Brahmans conferred on Sivaji the status of a Kshatriya or made him a twice-born even assuming'that he had not that status before his. Upanayanam and coronation. There is no authority in any of the Smrithis or Hindu Law books for holding that the mere performance of those rites would change the caste so as to entail the advantages or disadvantages which the Hindu Law confers upon the members of each caste. But assuming for argument's sake that Sivaji was thus raised to the status of a twice-born and became a Kshatriya, it is not suggested that this act would similarly raise the status of all his collateral relations. It is clear that Sivaji's father Shabaji left for the Carnatic several years before Sivaji's coronation and died there and that Ekoji, the founder of the Tanjore Eaj, the half-brother of Sivaji, was separate from Sivaji and pursued his own conquest in the Carnatic. Ekoji had admittedly no coronation ceremony performed like Sivaji, and it is difficult to see how Ekoji can have been raised to the status of a Kshatriya, simply because his step-brother got the Brahmans to crown him king.
188. So far as Sambhaji, the son of Sivaji is concerned, no Upanayanam ceremony was performed till he was installed as Yuvaraj in 1679. He had been married and had children by then. There is no evidence that Sahu. who reigned till 1749, his son, or Rajaram, his brother, had any such ceremony perfor med at any time, much less any evidence to show that they had Vedic rites and ceremonials. Exhibit F-86 is an account of the year 1750, showing that Upanayanam ceremony was performed to Ramaraja, Sahu's successor. He was brought up in obscurity by a humble family and was said to have been kept in hiding owing to fear of assassination by Sahu. Doubts were thrown on his being related to the house of Sivaji. I shall refer to him later on when dealing with the claims of the Satara branch to succession to the Tanjore estate. There is no other evidence showing that Upanayana to any other member of the Satara Eaj which came to ah end on the deposition of the Raja in 1849 was performed. It is pointed out by Mr. Senrin his extracts from documents relating to Mahratta history at page 114 that an extract from the Peshwas' diaries shows that the descendants of Sivaji had for sometime after the rise of the Peshwas given up the practice of wearing the sacred thread.
189. It is argued that so far as the Satara branch is concerned, the successors of Sahu were virtually prisoners, that the Peshwas were the real rulers and that it was to the interest of the Peshwas to discourage Upanayanam. I find it difficult to follow this argument. The Peshwas, though virtually the rulers outwardly, confirmed to the theory that they were only ministers of the descendants of Sivaji who ruled at Satara. Every Peshwa sought for investiture from the king in Satara and it is difficult to see what interest the Peshwas bad in preventing Upanayanam ceremony from being performed and in thus degrading the rulers in the eyes of the people.
190. It seems to me that as a matter of policy it would have been to the interests of the Peshwas to show that they were ministers of a Kshatriya prince rather than of a Sudra if as a matter of fact the descendants of Sivaji were Kshatriyas. That the Peshwas did not object to Upanayana being performed is clear from Exhibit F-86 which shows that when they set up Ram Raja in 1750, Upanayanam was performed when he was brought from his place of exile to Satara. The Peshwas claimed to be high class Brahmans; service under a Sudra is condemned by Manu and other Smrithi writers. For example, Manu, Chapter XI, verse 70, makes attendance by a Brahman on a Sudra, a ground of social degradation. The Peshwas are not likely to have put themselves in this position especially as their power was too deeply rooted to be affected by the caste of the king. The probabilities are that the ceremony of Upanayanam was only gone through as an adjunct to coronation following the example of Sivaji and was given up latterly when that rite had no political necessity or significance during the time of the Peshwas.
191. [His Lordship gave special attention to the evidence adduced by the fifteenth defendant and held that it was insufficient to prove either that all those who call themselves Mahrattas are Kshatriyas or that the term Mahratta includes the two classes only, the Kshatriyas and the Sudras. Then coming to the case of Tanjore, His Lordship discussed the alleged instances of Upanayanam having been performed and proceeded:]
192. I have dealt in detail with Upanayanam, because it is admitted on all hands that it is the ceremony which differentiates the three higher classes, namely, the Brahman, the Kahatriya and the Vaisya, from the Sudra. It appears from the evidence, and it is not disputed before us, that several lower orders who, according 'to Sastras, would not be entitled to wear sacred thread have been putting on the sacred thread and going through a ceremony like the Upanayanam ceremony of the three higher classes with a view of raising their status. In the District Manual it is stated that all Mahrattas, higher and lower wear the sacred thread (pages 173 and 175), and the evidence adduced shows that classes who are admittedly Sudras, like blacksmiths and goldsmiths, wear the sacred thread (for example, see the evidence of Sitarama Dikshadar, D.W. 43). In Jogendro Bhupati v. Nittyanand Man Singh (1885) 11 Cal. 702, which was affirmed on appeal by the Privy Council in Jogendro Bhupati Hurrochundra Mahapatra v. Nittyanund Man Singh (1801) 18 Cal. 151, lit was pointed out that wearing the sacred thread, though worthy of notice, is by no means conclusive on the question of caste. Garth, C.J., observed:
But it is contended that the fact of Jogendro being invested with the sacred thread tends to show that the Sukanda Rajas as well as Panikota Rajas belonged to the Kahatriya caste. We think this circumstance, although well worthy of notice, is by no means conclusive on the point. No doubt, the Rajas of Sukanda, like other Rajas of Kuttuk, endeavoured to assume the rank of true Kshatriyas, but whether they were so in fact is more than doubtful.
193. The Chief Justice also lays great stress on the fact that the Ranis stated in the written statement that they were Sudras. I shall refer to the statement of the Ranis in this ease that they were Sudras, later on,
194. This would not make them twice-born or raise their status from Sudraship to anything highor. There can be little doubt-that, so far as the first three twice-born classes are concerned, Upanayanam is regularly performed. It is an important ceremony which is invariably performed with a certain degree of pomp and publicity. "Where in cases of controversy as to whether a person belongs to the twice born class or the Sudra class, it is shown that Upanayanam ceremony was not performed, it is a very important piece of evidence to show that the person belongs to the Sudra caste and not to the higher caste, though the converse case of the non-performance of Upanayanam by the twice-born would not necessarily show that the person not performing it belongs to the lower class.
195. It was argued that the mere non-per-fovmance of Upanayanam would not, in the case of the higher classes, necessarily reduce the person to the level of a Sudra. This may be so only where it is proved that the person giving up the ceremony belonged to the higher class. So far as the ceremonies that are essential to give persons the status of twice-born are concerned, they are fixed by the Smrithis Where the question is as to the caste of a particular person, the performance of the essential rites required by the Shastras assumes importance in fixing the caste. I have gone through the evidence relating to the Tanjore branch of the family and I do not think the evidence shows that Upanayanam was performed to any of the kings until we come to Serfoji, the adoptive father of the last Raja, and that from that period the evidence is by no means satisfactory as to the performance of the Upanayanam in the case of the adopted son and the near relations of the deceased Raja.
196. In cases of Sudras for whom Upanayanam ceremony is not prescribed, there is the practice of putting on the sacred thread at the time of the marriage or funerals ceremonies. This is called the Alankara Poonool or Loukika Poonool (or the ornamental sacred thread) and is merely an imitation of the higher classes involving no religious consequences - not being prescribed by any of the Smrithis. The fact that, in the instances of any reference to the Upanayanam in the account, it is part of the marriage ceremony and the fact that a very small sum is spent shows that the ceremony was more in the nature of putting on an Alankara Poonool or Loukilta Poonool. The whole evidence as to Upanayanam is discussed in paragraphs 1484 to 1526 of the judgment. I do not think the evidence shows that the Mahrattas in Tanjore have the Upanayanam performed with the rites prescribed for the twice-born classes.
197. Closely connected with the Upanayanam ceremony is the Gayatri Upadesa or the teaching of the sacred verse in the Vedas called Gayatri. It is the teaching of the Gayatri mantra at the Upanayanam that really confers on the Brahman, the Kshatriya or the Vaisya the status of a twice born. The Gayatri mantra is a mantra from the Rig Veda. According to the Asvalayana Grihya Sutra, the Gayatri for the Brahman is also the Gayatri mantra for the Kshatriya. As an alternative, in some of the Grihya Sutras two other Yedio verses are prescribed for Kshatriyas; one beginning with Tam Savitah and the other with Dova Savithuhu. There is no Gayatri mantra for Sudras. The Brahman Gayatri is one of the most sacred verses of the Rig Veda which when translated, runs as follows:
Let us meditate on the sacred light of that divine Sun that it may illuminate our minds.
198. I have already referred to the texts wherein Vedic mantras are prescribed only for the three higher or twice-born ftlasses and prohibited for the Sudras. In case of Sudras, rituals had to be performed without the recitation of sacred mantras. In course of time it was felt that, so far as the Sudras were concerned, though Vedic mantras were forbidden, there should be some substitute and the Puranas, which, although looked upon with reverence by the mass of Hindus, ranked below the Vedas in point of sacredness, wore resorted to for the purpose of supplying the mantras to be recited for ceremonies among Sudras and Vedic ritual was confined to the three higher classes, while the Puranio ritual was confined to the Sudras. It was thought that, just as the Gayatri mantra was the hall-mark of the three superior classes, the Sudras should have some mantra of their own and the first verse in Devi Bhaghavatham, one of the Puranas was selected as the mantra which the Sudras ought to use. That sloka begins Sarva Chayithana Roopnam and may be translated thus:
I meditate on the beginningless Vidya which is of the nature of all consciousness. May She stimulate our intelligence to the realization of that (the Supreme Being).
199. The evidence in this case is conflicting both as to the caste of the parties, whether the rituals were Vedic or Puranio and whether the mantra taught was the Gayatri or the sloka from the Devi Bhagavatham. Each side has adduced evidence. Those called for defendants 4 to 11 want to make out that the parties are Sudras, that the rituals were Puranio and that the Gayatri which was taught to the members of the Royal family was not the Vedic Gayatri which is imparted to the members of the three higher classes. The other defendants want to make out that the parties are Kshatriyas and that the ritual was the ritual of the twice-born classes. In estimating the value of the evidence given, it has to be borne in mind that during the time of Sivaji, the last Prince, and Sivaji's father, attempts were made to adopt the rituals of the twice-born classes ; but the mere performance of ceremonies which are performed by the twice-born classes would not, as is conceded on all hands, elevate the Sudras or the fourth class to the status of the twice-born class, though where the caste of a family is doubtful and its origin cannot be traced, the performance of Vedic or Puranio rituals without any objection for a long series of years will be important evidence as to the caste.
200. [His Lordship further discussed evidence and after holding that neither the members of the Tanjore family nor the Mahrattas of Tanjore had the Gayatri mantram taught to them at such of the Upanayanam ceremonies as were proved to have been performed to the members, proceeded:]
201. It was argued that the Mahrattas have got gotras connecting them with Rishis and that this is one indication of their being one of the twioe-born classes. The (mere fact of having a gotra would not settle the question as many Sudra families lhave gotras Borne Rishi gotras and some non-Kishi gotras. One important thing connected with gotra is pravara; and gotra and pravara go together. Almost all the witnesses who say that the defendants are Kshatriyas are unable to give their pravara. So far as the Sudras are concerned, though they have gotras, there is no question of any pravara. Defendant's 103rd witness Sankara Rao, who is a Mahratta Sudra, states tbat he wears a saored thread and that his gotra is Kapila Rishi gotra. Defendants' 89th witness Kannuswami Ayyar, who is a priest, states that, among Sudras, Nayudus and Chetties have got gotrams.
202. There is one other very important point which shows that the parties are Sudras. It is admitted that, so far as the twice-born classes are concerned, marriages between members of the same gotra and pravara are absolutely forbidden, and, if performed, would be invalid; among Sudras this rule does not apply. (See Mayne's Hindu Law, paragraphs 86 and 87, pages 103 to 105). The evidence in this case is that, among Mahrattas marriages are contracted between members of the same gotra. Manoba Saheb, the 26th witness for defendants 1 and 2, who is a close relation of the Banis, states that Mahrattas marry in the same gotras and admits that it is a deliberate overriding of the Shastras. The third defendant in his evidence states that his adoptive father belongs to Vasishta gotra and his natural father to Jabalasa gotra. He admits that the gotra of his mother before marriage was also Vasishta; so that his adoptive father would have married a girl of the same gotra. The seventh defendant in his evidence gives instances of marriages between members of the same gotra, namely, Athri gotra and Vasishta gotra. An attempt was made at the examination of the defendants' first witness Mr. Ghautige to explain the sagotra marriages by stating that the girl was given in adoption before the marriage. The question was put to him in re-examination in a leading form and he gave the answer. There is nothing in Hindu Law which sanctions a girl being given in adoption; and the evidence of this witness has not been followed up by the other witnesses by giving instances of adoption. It should be remembered that, as in the case of marriages, the prohibition of sagotra would apply to the gotra of both the natural and adoptive fathers; so that mere adoption would not take away the prohibition even assuming the girl was given in adoption, A man cannot marry his sister's or brother's daughter by resorting to an adoption with another family. The fact that sagotra marriages exist among Mahrattas and among the members of the Royal family strongly probabilizes the view that the parties are Sudras, and that as such prohibition does not apply to Sudras, sagotra marriages have taken place.
203. The next point is about the funeral ceremonies. In regard to sradhs, the offerings to the ancestors called pinda consist in the case of Kshatriyas, of cooked rice balls or pindas, while in the case of Sudras cooked rice is not used but only flour. So far as the accounts relating to sradhs go, they all show that the pindas offered were made of flour and not of cooked rice. No document was referred to in the course of the argument which shows that cooked rice pindas were offered. The Subordinate Judge deals with this portion of the case in paragraphs 1470 to 1475 of his judgment. Having regard to the accounts which give minute details as to the quantity of flour purchased and used, the evidence of the witnesses called to show that at sradhs rice pindas were offered is, in my opinion, not true. Another important point in the ceremony is the performance of the homam or the giving of oblations in the sacred fire that is lighted. According to Smrithis, the Kshatriyas are entitled to have the homam performed at sradhs and if sradhs are performed according to Vedio rites, homam is indispensable. The 21st defendant Hari Saheb Mohitai, who examined himself as the 46th witness for defendants 1 and 2 and who claims to be a Kshatriya, states that no homam was performed at the sradhs performed by him. Yeswant Rao Saheb, 69th witness for defendants, who is related to the Ranis, states that he does not do homam in performing Brahmayagnyam at sradhs. The witnesses called by defendants 4 to 11, whose case is that the parties are Sudras, state that no homam was performed. As regards intermarriages, there is reliable evidence to show that the descendants of Sivaji contracted alliances with the families of Soindja and Holkar, who are Sudras, (Sir John Malcolm's Central India, pages 116 and 142.) The Subordinate Judge refers to the marriages in paragraph 1382 of his judgment. It is also proved that Sudra cooks were employed in the Tanjore Royal Palace and having regard to the well-known fact that none of the three twice-born classes would take food prepared by Sudra cooks', this circumstance is also a strong piece of evidence as to the caste of the parties.
204. [In the course of his discussion of the evidence of judicial proceedings and statements of parties made therein, His Lordship observed as follows:]
205. In dealing with the case of a particular family, I think the evidence given in litigations between members of that family which raise the question of caste and decisions of Courts as regards the caste of the family are relevant. If the judgment is evidence, the recital in the judgment of the evidence of the witnesses is also relevant especially when the original depositions have been destroyed under the rules of Court.
206. [Continuing the discussion of evidence, His Lordship said:]
207. Exhibit D-78 is a deposition by Ramakumaramba Bai Saheba (one of the widows of the late Raja) in Original Suit No. 400 of 1907 on the file of the District Munsif of Tanjore. In the deposition, while giving her religion she has stated "Hindu Sect, Mahratta Sudra". Defendants' ninety-fourth witness, T. Dasarathi Sahib, who speaks to this statement being recorded and whose father was the younger brother of the Rani Ramakumaramba Bii Saheba, states that he was a party to Original Suit No. 400 of 1907 and that he was present when Ramakumaramba Bai Saheba was examined as a witness by Sirkle Vaman Rao who was appointed Commissioner to take her evidence as she was a gosha. He states that the deposition was read out to her and that she signed it. In cross-examination he states that the deposition was road over to her, that the Commissioner swore her in Mahratti and then questioned her about her husband's name and caste and that he remembers wall that she said he was a Mahratta Sudra. It is clear from the evidence of this witness whom the Judge believes on this point that the statement of caste was male by Ramakumaramba Bai Sahaba haraalf; and thus there is no force in the contention founded on the decision of their Lordships of the Privy Council in Maqbulan v. Ahmad Hussain (1904) 26 All. 108. There is no reason to suppose that the Commissioner who was a Sirkle and disinterested falsely put in the description of caste.
208. [His Lordship further pursued his discussion of the evidence and remarked:]
209. It is argued by Mr. Varadachari for the fifteenth defendant that where the caste of a particular family is not clear from the evidence, the assertion made for 200 years by the members of that family that they belong to a particular caste would be valuable evidence and would raise a prima facie presumption that they belong to the caste to which, they allege, they belong. As, however, in the case of the Tanjore Raj there has been no such uniform description of the parties by themselves as Kshatriyas, I do not think any such presumption arises. Again we have the fact that so far as the family of Sivaji is concerned, the claim to Kshatriyaship has been denied. It was denied at the time of the coronation of Sivaji. It was denied when the members of the Kolhapur Raj wanted to have Vedic rites performed on the footing that they were Kshatriyas and recourse had to be had to dismiss the priests and resume their jaghirs and otherwise coerce them to submission and in the case of the Tanjore Raj, Serfoji, the father of the last Raja, had to exercise considerable pressure upon the priests before they would perform the ceremony of investing him with the sacred thread on his return from Benares and when he was about 50 years old. Under these circumstances, I do not think that there is any ground for drawing a presumption from a long course of conduct. The caste of Sivaji must therefore be proved like any other fact without any presumption that, either because he was a Mahratta or because the surname which his family bore was one which is included in one of the 96 olans, he should be a Kshatriya.
210. There was some argument at the bar as to the presumption to be drawn as to the caste of a party when the evidence was unsatisfactory. The Subordinate Judge in his judgment, after a reference to the authorities, was of opinion that the presumption in the absence of evidence that parties are of twice-born classes is that they are Sudras. He deals with the question in paragraphs 1295 to 1302 of the judgment. I do not think it necessary to discuss the question as there is evidence on both sides and there is no question of onus or presumption. If it were necessary, I think that Muthusami Mudaliar v. Masilamani (1910) 33 Mad. 342 approved by the Privy Council in Ma Yait v. Maung Chit Maung A.I.R. 1922 P.C. 197 and in Soundararajan v. Arunachalam Chelty (1916) 39 Mad. 136 support the view that all Hindu castes that are not proved to be twice-born classes must be treated as Sudras. I am of opinion that the evidence establishes that the members of the Tanjore Royal family are Sudras and not Kshatriyas, and I agree with the Subordinate Judge in his conclusion on this point,
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Madras High Court
Maharaja Of Kolhapur vs S. Sundaram Ayyar And Ors. on 21 January, 1924
Equivalent citations: AIR 1925 Mad 497
1. In A.D. 1674 during the reign of the great Mogul Emperor Aurangzeb, Ekoji alias Venkaji took Tanjore from its Nayak Rulers without firing a shot. This Mahratta General was the son of Shabji who had attained military distinction under the independent Muhamadan States of Ahmednugger and Bijipur and in the course of one of his military expeditions had levied a contribution from the Nayak Chiefs of Taujore and Madura in the South Carnatic country.2. Ekoji's grandfather was Malloji, a Mahratta of the Bhonsle family, who distinguished himself under Jadava or Jadow Bow, a Mahratta Chief in the service of the Ahmednugger Government, and won the hand of his daughter Jiji Bai for his elder son Shahji. Shahji by his first wife Jiji Bai waa the father of the famous Sivaji who founded the Mahratta Empire in the Deccan in the 17th century, and by his second wife Tukka Bai, daughter of Mahratta parents with the surname of Mohitai, was the father of Ekoji, the founder of the Mahratta dynasty in Tanjore. When Shahji died from a fall in the hunting field, Ekoji performed his funeral rites and was confirmed by the Bijapur Government in the enjoyment of the fiefs of Bangalore and Tanjore. In 1677 the forces of Ekoji and those of his half brother Sivaji came into conflict but by a compromise the former was allowed to retain Tanjore. In 1680 Sivaji got Tanjore and other territories ceded to him by the Bijapur Government, but in the same year Sivaji died and Ekoji retained his-hold on Tanjore.
3. Ekoji died in 1686 or 1687 leaving 3 sons, Shahj'i II, Sarabhoji, and Tukkoji who each in tarn succeeded to the Raj. During the reign of the first named, there were two invasions led by general of the Moghul Emperor and considerable sums were levied from Tanjore as indemnity coupled with a promise to pay annual tribute to Delhi. After Tukkoji died in 1735, his legitimate son Baba reigned for about a year, and then was succeeded by his widow Sujana Bai whose regency only lasted for a short period. Two years after revolution followed. A pretender known as Savai Shaji or Katturaja which signifies in Tamil "Jungle King" usurped the throne with the aid of Muhamadan commander of the Fort named Said. The usurper was assassinated, and the principal men in the State assisted by Said "the King maker" first put Saiyajii the second legitimate son of Tnkkoji on the musnud and secondly Pnttap Singh, the son of Tukkoji by his sword wife Annapurni. Pratap Singh's first act was to have Said put to death. Ho ruled for 24 years and during his reign his forces canoe into conflict with the army of Mahomed Ali, the Nawab of Araot, and with the troops of the Bast India Company sent to aid the deposed Saiyaji, and with the French under Lally. In 1762 by the intervention of the British a treaty was concluded under whioh the Raja of Tanjore agreed to pay tribute to the Nawab at the rate of four lakhs of rupees annually. Pratapa Singh died in 1763 and was succeeded by his son Tulsaji. In 1771 and 1773 Tanjore territory was twice invaded by the British from Trichinopoly. On the second occasion the Fort was taken and the Raja and his family were made prisoners, but in 1776 under the orders of the Court of Directors he was restored to all his territories and became an ally of the British under a treaty by which he had to pay an annual subsidy of 14 lakhs of rupees and his State became a Protected State under the Company's Government. On Tulsaji's death without issue in 1787 his half brother Amar Singh, son of Pratapa Singh by a sword wife succeeded and con-eluded two treaties with the British in 1787 and 1792, but he was deposed in 1798 in favour of Serfoji, an adopted son of Tulsaji, whose tutor and guardian Mr. Swartz of the Danish Mission was able to satisfy the Court of Directors through a memorial presented to the Governor-General Lord Cornwallis that the verdict of the Pandits which had previously been pronounced against the adoption was erroneous in law and had been obtained by corrupt means.
4. In 1799 Serfoji resigned the government of the country into the hands of the Company, and Tanjore then became a British District with the exception of the Fort of Tanjore and some villages and lands which constituted his Mokhasa or private property and are the subject of the present litigation. In addition to these he agreed to receive 31/2 lakhs of rupees and 1/5th of the net revenues of the country while the Company took the other 4/5ths. In 1832 Serfoji died and was succeeded by his only son Sivaji, the last Rija of Tanjora. Sivaji married 3 daughters of his sisters. Two of these wives predeceased him. To the elder Rani Sydamba Bai were born two daughters Rajes Bai and Muktamba Bai who both in turn were married to the same man - Sakharam Saheb. The Raja's second wife Kamakshi Bai survived him and died in 1892. In 1852 in his desperate anxiety to get an heir, he married 17 women in two batches of 9 and 8 on one day (July 11th, 1852). When His Highness Maharaja Sivaji died On October 29th, 1855, he left 15 Ranis, two legitimate daughters, a mother, 60 women living in a seraglio called the Mangala Vilas, of whom 40 aspired to be called sword wives in distinction to the dancing girls who were ordinary concubines, and 17 natural children begotten by the Raja through sword wives, six of these children being males. There were also the remnants of Serfoji's seiaglio called the Kalyana Mahal. Upon the Resident, Mr. Forbes, reporting the death o the Raja and putting forward the claim of his younger daughter to be his successor and upon the Government expressing" a decided and unanimous opinion that there being no male heir there was no legitimata claimant to the Ra, the Court of Directors in a despatch of April 16th, 18th agreeing with the opinions of the Government of Madras and the Government of India, declared the dignity of Raja of Tanjore to be extinct and the Raj to have lapsed to the British Government, as the Raja died "without leaving a son by birth or adoption" and his father Serfoji was only an adopted son. On October 18th of the same year Mr. Forbes, in his new capacity of Commissioner, took possession of the Fort of Tanjore and the lands held by the late Raja or upon demise from him.
5. Thereafter Kamakshi Bai as senior surviving Rani filed a Bill on the Equity side of this Court against the East India Company and succeeded in obtaining a decree declaring her to be entitled to the estate of her deceased husband and declaring the Company to be trustees of the property taken possession of by their servants and directing an account to be furnished. The case went on appeal to the Privy Council (the Secretary of State in Council of India taking the place of the East India Company) and the Judicial Committee in The Secretary of State in Council of India v. Kamaehee Boye Sahaba (1859) 7 M.I.A. 476 reversed the above decision on the ground that the seizure of the property was an exercise of sovereign power effected at the aribitrary discretion of the Company by the aid of military force and that the act so done with its consequences was an act of State over which the Supreme Court of Madras had no jurisdiction. On the Plaintiff's Bill being thus dismissed, Sir Charles Trevelyan President of the Council, in spite of the opinion of the Judicial Committee to the contrary vide The Secretary of State in Council of India v. Kamaehee Boye Sahaba (1859) 7 M.I.A. 476, decided to treat the case as one of lapse by escheat, and to instruct the Madras Government to that effect. The Madras Government accordingly regarded the Raj as merges in the Government which had become the Raja's residuary heir discharging his obligations, and proceeded to work out a scale of pensions for the maintenance of the late Raja's dependants. The widows, backed by a large amount of public sympathy, did not sit quiet under this disposition of their fortunes. They enlisted the services of Mr. John Bruce Norton, then Government Pleader of the Supreme Court on leave, who drafted for them what is termed in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C. 424 a "forcible memorial" and himself proceeded to England in 1860 in order to rouss the British public to an appreciation of the injustice done by the act of confiscating the property of an independent Prince who had always been faithful to the British, and to induce Parliament to interfere in their favour and get the estate restored to the family. Mr. Norton's appeal evoked a remarkable response and on June 23rd, 1862, Colonel Durand, Secretary to the Government of India, announced Lord Canning's sanction to the relinquishment of the whole of the lands in favour of the heirs of the late Raja.
6. Since the plea in equity and policy for treating them as the private property of the Raja was so strong that it commanded the unanimous support of the members of the Madras Government."
7. On the 21st August 1862, an order of the Governor in Council was issued by the Madras Government declaring the manner in which this relinquishment was to be effected. By this time Rajes Bai, the elder daughter of Sivaji, had died on December 26th, 1856, and her husband Sakharam had married his deceased wife's sister Muktamba Bai, the Raja's second daughter, in February 1860. This all important order sets out that the Government having consulted the opinion of the two Pundits of the Sudder Court in order to ascertain what were the respective rights of the Raja's widows and of his daughter according to Hindu Law, concurred with the opinion of the Junior Pundit, which was in accordance with the principles of Hindu Law as expounded by the Sudder Court and the Privy Council, namely, that the senior widow was entitled to manage the property during her life-time being at the same time responsible for the maintenance of the other widows. The G.C. then proceeds to declare:
The Estate will therefore be made over to the senior widow who will have the management and control of the property, and it will be her duty to provide in a suitable manner for the participative enjoyment of the Estate in question by the other widows - her co-heirs. On the death of the last surviving widow, the daughter of the late Raja, or failing her, the next heirs of the late Raja, if any, will inherit the property.
8. This order was duly carried out by the officers of Government and the private personal property of the Raja was made over to the senior widow, Kamakshi Bai, but there was no restoration of the dignity of the Raj.
9. On July 1st, 1863, acting on the advice of Mr. Norton and in spite of the protests of other widows and of the Princess Muktamba Rai, Kamakshi Bai adopted Rajaram Ingle alias Serfoji, the late Raja's sister's grandson, whom the Raja was said to have designated for adoption when he found himself without a sou by any of his Ranis and who performed the Raja's obsequies and the obsequies of the Ranis. The Government of Madras, as advised by the Government Agent, when informed of the fact, took no official notice of it but directed the Government Agent to impress on Kamakshi Bai as senior widow her responsibility to the other widows and to the late Raja's daughter "who would inherit the whole property in the event of her surviving the widows." Kamakshi Bai, besides adopting Rajaram, transferred to him all the properties which she had got through the grant of August 21st, 1862, and enjoined the estate servants to take orders from him, styling him Sorfoji Maharaja. When, however, she and Rajaram memoralized the Governor of Madras and the Secretary of State to recognine the adoption, the former declared his intention of declining to hold any communication with any one but Kamakshi Hat on the subject of the estate and the family of the late Raja, and the latter while approving of the course adopted, observed "The validity of the alleged adoption by her as regards private property is a matter for the Civil Courts" The Government of India also declined to interfere with the orders passed by the Madras Government.
10. The next thing that happened was that two of the junior Rania filed a suit (Original Suit No. 16 of 1866) in the Civil Court of Tanjore against Kamakshi Bai and the adopted son for their shares of the movable property of their late husband and of the proceeds of the immovable property on the strength of a privato agreement and for a declaration that the adoption was invalid and for the appointment of a permanent Receiver to manage the property during Kamakshi Bai's lifetime. The Civil Judge (Mr. Davidson) refused the relief by way of a division of property but made an order for the appointment of a Receiver, while holding that the validity of the adoption of the fourteenth defendant had not been established and that the first defendant Kamakshi Bai was totally unfit to be entrusted with the management of the estate. He had previously in an order in Miscellaneous Proceedings held that the transfer of property from first to fourteenth defendant was ultra vires and not bona fide. From this decision the plaintiffs appealed, and Kamakshi Bid and Rajaram preferred a cross-appeal which was dismissed for non-payment of the Court fees.
11. The appeal was heard by Scotland, C.J., and Ellis, J., and is reported Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C.
n to doubt the correctness of this finding. The difficulty in arriving at a correct decision on this point is chiefly caused by the foot that Mahratta is the name of a nation, not of a case. Certainly not all Mahrattas are of Kshatriya caste. Kunbis, who belong to the cultivating caste, are also Mahrattas. Mr. Enthoven, I.C.S., in his "Tribes and. Castes of Bombay," Volume III, page 9, states:
The common belief in Maharastra regarding the origin of Mahrathas is that there is little or no difference, so far as caste is concerned between Mahrathas and Kunbis.".... "The Kunbis do not lay any pretensions to Kshatriya origin.
46. The author in another place says:
The line of demarcation between Mahrattas and Kunbis is not a hard and fast one;" but "they are differentiated rather by wealth and social status than by any hard and fast caste distinction. The claim of the Mahrathas to belong to the ancient 96 families of the Kshatriya race has no foundation in fact, but must have been advanced after they rose to power.
47. Compare also the Satara Gazetteer, pages 75 to 79, and the Kolhapur Gazetteer, pages 71 and 72. The tradition that Mahrattas have a Rajput origin and that they are Kshatriyas may have received credit in Rajputana owing to a natural desire of Rajputs to connect themselves with, a personality so famous as that of Sivaji the Great. There is no evidence that Kshatriyasbip was claimed before the time of Sivaji the Great. It is a matter of history that Sivaji paid four lakhs of rupees to Gaga Boat, a Brahmin of Benares, in order to have his upanayanam (thread marriage) performed when he was 47 years of age, and to be raised to the rank of a Kshatriya at the time of his coronation. In the Kolhapur Gazetteer, page 72, it is stated that the descendants of Sivaji. claim to belong to the Kshatriya caste and say that their ceremonies are the same as those of Brahmins. The author proceeds:
Brahmins admit this claim in the case of the ruling family and perform their ceremonies with Vedic texts. The ceremonies of other Kolhapur Mahratta families are performed according to the Sudra Kamalakara, a classical Sanskrit version of the Vedic passages. The well-to-do among the Kolhapur Mahrattas claim to perform the sixteen Brahmin sacraments or Sanskars, but the bulk of the people perform no ceremonies except at birth, thread girding, marriage, coining of age, and death.
48. Sivaji from dynastic reasons had a necessity to put forward a claim to the highest rank in order to found a Hindu Kingdom and to arouse Hindu national sentiments capable of withstanding the encroaching spread of the Moghul Empire. It is natural for that reason that no Hindu should wish to challenge his claim to Kshatriya rank at the time of his coronation. There is, however, no evidence of any coronation ceremony with Brahminical rites having been performed, when any of the rulers in the Tanjore branch ascended the musnad. It is unnecessary for the purpose of this case that we should make any pronouncement as to the right of Sivaji and his descendants to olaim that they belong to the Kshatriya caste, though it is a matter of great moment to the direct descendants from Sivaji such as the Maharaja of Kolhapur, who is the fifteenth defendant, and to the fourteenth and twenty-fourth defendants, who represent the Satara and Jinti branches, that they should not be degraded by a judicial decision to which they are parties. Whether it is more correct to adopt the view of Mr. Justice Telang in his essay called "Gleanings from Mahratha chronicles" embodied in Mr. Justice Hanade's "Rise of the Mahratha Power" at page 288 where ho says : "Taking the whole evidence together, it looks like a case of a more or less deliberate manipulation of facts and religious rules, in aid of a foregone conclusion adopted for a purely political purpose," whether we believe the story given in J. Sarkar's "Shivaji," pages 240-246, that Shivaji underwent a public purification for having omitted to observe Kshatriya rites BO long and that fiere was a meeting among the assembled Brahmins who asserted that there was no true Kshatriya in the Kali ago when Gaga Bhat attempted to initiate Sivaji wish Vedie mantras and that he finally yielded to opposition and initiated him in a modified form of the life of the twice-born, or whether we should rather adopt the view of Mr. Ben in his recent book called Siva Ghhatrapati, published while these appeals were awaiting a hearing, that the argument that there were many Sudra kings without any knowledge of Kshatriya rites, though urged for the space of a year and a half, had no effect on Gaga Bhat but that he was finally prevailed upon to crown Sivaji by the plea that ho was kind to his subjects, and maintained the true religion (pages 241-242), or whether the version given in Subasat's Bakar, page 114, that Gaga Bhat was satisfied by means of an emissary sent to Rajputana that Sivaji's ancestors came from Kshatriya families and that he was a Suddha (proper) Kshatriya is correct, it is unnecessary to express any opinion on this much vexed question whether Sivaji represented a fallen Kshatriya restored after penance or a good Sudra king elevated to Kshatriya rank by bribing the Brahmins, upon which historians have been at controversy, for two reasons - firstly because, as suming that Sivaji and his descendants are Kshatriyas, it does not follow that Ekoji, his half-brother, who did not go through the ceremonies of purification and coronation, as Sivaji did, and his descendants are anything more than Sudras, seeing that the two brothers separated before the date of Sivaji's coronation; and secondly because, if my finding is correct that Pratapa Singh was illegitimate owing to his mother not having been married to Tukkoji in any authorized form of marriage, the agnates in the Kolhapur, Satara and Jinti branches can have no claim to succeed to the property of the late Raja of Tanjore.
49. Now, turning to the evidence available in the Tanjore branch, and accepting the principle that the consciousness of a community is a good test of Varna, we may see if this branch's claim to Kshatriya origin has satisfied the test. Maloji was a Mahratta of the Bhonsle family; Ekoji's mother was a Mohitai. Mr. Bartle Frere, who was the Resident of Satara in 1848, in his narrative of the early history of the Bhonsles of Satara, says:
The Bhonsles, like most of the old Mahratta families, had pretensions to a Rajput origin.
50. He adds;
the Bhonsles of Deoor near Satara who are said originally to have come from Hingunburdee near Poona and from whom the Rajas of Nagpore are descended, are generally supposed to have been connected with the Satara House but the relationship has never been established.
51. There is no evidence that the Bhonsles had a Kshatriya origin beyond the temple inscription which mentions Bhonsle, Mohitai, Nimbalkar, Ghantake and Jadav and other names familiar in the history of Shahji's parents among the 96 Sannavaguli branches descended from Rama, and the similarity of the names - Yadava, Rajput, Jadav (Shahjis wife was the daughter of Jadava Rao - vide Kincaid, Vol. I., page 116) and between "Bhonsle," Bhonsle, Sissode, and Bhosavat a village in Udaipur (vide Kincaid, page 113, foot note, and Sen's Siva Chhatrapati, Notes and Appendices, page 260, as to the three possible derivations of the word Bhonsle).
52. Again the Mahratta family name of Power hag been attempted to be identified with Puar (vide Malcolm's Memoir of Central India, Vol. I, page 99, in his chapter on the Puars of Dhar and Vol. II, pages 125 and
126.) Such conjectural evidence may satisfy the historian, the ethnologist, or the philologist, but will not do for a Court of law which looks for strict proof of the pedigree of an individual or the lineage of a particular family. An individual in England who laid claim to be descended from royalty would not advance his case far by merely showing that his mother's maiden name happened to be King. Mr. Ketkar in his History of Caste in India, Vol. I, sit page 65, speaks of Yavanas or Greeks, which were mentioned by Marat as a warrior tribe, which became Budras by not corsulting the Brahmanas.
53. Kamakshi Bai made two very significant admissions during her lifetime. The first was when she brought her Bill in Equity for the recovery of the Tanjore estate and the said that her husband was a Mahralta of the Sudra caste and the fact was accepted by Rawlinson; C.J., who observed in his judgment in The Secretary of State in Council of India v. Kamachee Baye Sahaba (1859) 7 M.I.A. 476, that the Raja was "a Hindoo of the Soodra caste." Although the other widows who were parties to the suit may not have been interested in opposing Kamakshi Bai's statement of fact that the Raja was a Sudra, it is likely that the East India Company as defendant would have raised the defence that the Plaintiffs were Dwijas if they had thought that the Bill could be defeated on that ground. There is nothing to indicate that such an objection to Kamakshi Bai's Bill was ever thought of then. In those days pleadings were drawn up with much preciseness, and, in claiming the property of a deceased man, it may have been thought necessary that the widow should describe him very fully, name, age, caste, etc. Interrogatories were served on every point asserted in the plaint, as it was not a statutory rule in those days as it is now under Order VIII, Rule 5, Civil Procedure Code, that every allegation of fact not specifically denied in the written statement was to be taken as admitted. The explanation now offered that Kamakshi Bai, being the sister's daughter of her husband, was in danger of having her marriage declared void if she claimed to be a twice born is not a convincing explanation. The natural tendency of human-beings is to claim a higher caste or status rather than a lower one ; so that the statement of Kamakshi Bai that Sivaji was a Sudra is all the more remarkable, if ho was really a Kshatriya. It appears to be an honest statement of the truth. Then, in reporting the adoption of Rajaram, Kamakshi Bai stated:
Although there are no mere formalities such as Datta Homam required to be performed for common classes under the prescribed rules of Hindu Law, yet, as from the days of the late Serfoji Maharaja, we do observe the same rules as are prescribed for higher classes.
54. This is a remarkable admission that, though they belonged to a family of Sudras, they had been acting Kshatriyas by performing the ceremonies prescribed for higher classes since the days of Serfoji. The motive for this incorrect statement, assuming it to be incorrect, is suggested to be that Kamakshi Bai wished to get over the objection of the other widows that Datta Homam had not been done for the adopted son at the death-bed of his adoptive father. Mr. Norton may have thought that if the claim of the adopted son was put forward when Datta Homam had not been done and if he styled himself as a Kshatriya, the claim might fail. I think that this explanation is too far fetched.
55 Then, in a suit to establish an adoption, the Civil Judge, Mr. Davidson, recorded a judicial finding that the Tanjore Royal family belonged to the Sudra caste "beyond all shadow of doubt" The parties were relations to the Tanjore royal family and the Court that tried the case had not the evidence before it which we have in the present ease. The decision is relevant as an instance in which the caste of the family received judicial notice, though it is not binding on the present parties as res judicata.
56. In the Bombay Presidency a suit was tried in which the parties were Nimbalkars and Soorves connected by marriage with the Tanjore branch. The Subordinate Judge found the parties to be Sudras; the Assistant Judge reversed his finding and found that they were Kshatriyas. The case came up in Second Appeal to the High Court of Bombay. The suit was in the end dismissed. The judgment in which it was found that the parties were Sudras has not been produced. The finding that Mahrattas were Kshatriyas was arrived at without any active contention. The plaintiff was not willing to succeed on a finding that he was a Sudra. As pieces of evidence these judgments are inconclusive.
57. The description of the relations of the Tanjore Raja's family of themselves as Kshatriyas, in sales, mortgages and other documents of title does not carry much weight. There seems to have been a division of opinion among the community; probably those who asserted that they were Sudras and those who claimed to be Kshatriyas, each acted from personal motives in order to get some advantage for themselves. One of these instances is a suit by a reversioner belonging to the Tiruvadamarudur branch to recover property in which the plaintiff admitted that he did not belong to the Kshatriya caste. The judgment is useful in another connection as containing a finding on the validity of the form of sword marriage, by which Ridha Bai was united to Pratapa Singh.
58. As regards the inclusion of Bhonsle and other Mahratta family names, with which the Tanjore family was connected, among the 96 Sannavagulis mentioned in the inscription, it is conceded that these names are borne also by families who are admittedly Kunbis. Mr. Risley in his "People of India," pages 87 and 88, observes:
The highest class of Mahrattas is supposed to consist of ninety-six families, who profess to be of Rajput descent and to represent the Kshatriyas of the traditional system. But their claim to kinship with the Rajput is effectually refuted by the anthropometric data now published and by the survival among them of Kuldevaks or totems... A wealthy Kunbi, however, occasionally gains promotion to and marries into the higher grade and claims brevet rank as a Kshatriya. The fact seems to be that the ninety-six superior families represent Kunbis who came to the front during the decline of the Moghul Empire, won for themselves princedoms or estates, claimed the rank of landed gentry, and asserted their dignity by refusing their daughters to their less distinguished brethren.
59. In fact, the case of those who maintain that this family is a Kshatriya family has not been consistent throughout. They began by claiming that all Mahrattas were Kshatriyas. This was obviously untenable as it is notorious that there are Mahratta Brahmins and Mahratta Sudras. Then some witnesses said that all the Sannavagulis were Kshatriyas. This also failed because it is impossible to ascertain who the Sannavagulis are. There are among them Kunbis, who are admittedly Sudras with house names such as those borne by Mahrattas, who emulate Kshatriyas. Some belonging to this inferior class of Sannavagulis were found to be living in Tanjore. Lastly, some witnesses said that only Vajaratmas (or relations of the Raja) were Kshatriyas. But for this final position the rigidity of a caste is wanting and the evidence is insufficient. Russell in his "Tribes and Castes of the Central Provinces of India, Volume IV, page 200, says:
In Satara the Kunbis have the same, division into 96 clans as the Mahrattas have, and many of the same surnames.
60. He identifies the Mahrattas with Mahars from which he thinks the country came to be called Maharashtra [vide page 199] and the Rashtrakutas he conjectures to be Rathor Rajputs. In A.D. 600 a Chinese traveller called Hiuen Tsang found a Kshatriya king called Pulakesi reigning Maharashtra [vide Kincaid, Vol. I, page 21.] But this Pulakesi was a Chalukya who conquered the country from its native rulers, the Rashtrakutas. Mahrattas are not proved to be descendants of Chalukyas. It has been suggested that they were descendants of Rashtrakutas, but all Rashtrakutas have not been proved to have been Kshatriyas. The Chalukyas were in their turn conquered by the Yadavas, whose chief Billama was crowned at Devagiri. Davagiri is another name for Daulatabad, which is far remote from Deo near Poona which is said to be the home of the B Bonsles.
61. If we examine the claim of the Tanjore family to be Kshatriyas from the point of view of the ceremonial performances which they followed, their claim equally fails. The chief distinguishing mark of the twice born is the upanayanam or thread-wearing ceremony. There is evidence that some of the members of this family put on poonul or thread, but there is very little evidence that before doing so they went through the ceremony of upanayanam. 105th defence witness a purohit from Tiruvadamarudur, was only able to mention two upanayanam ceremonies and he admitted that some of the Mahrattas have married without upanayanam being performed. He wished to have it believed that when marriages of the royal kinsmen were performed, they were accompanied with vedie rites, but that only puranic rites were observed when other Mahrattas were married. The Subordinate Judge has found that there is no uniformity of practice as regards the wearing of the poonul but that one thing is certain and that k that it was not worn as ordained. Again in the matter of pindams the Subordinate Judge has shown conclusively from the evidence that flour pindams were used for funerals in this family, and it appears from the evidence of the forty-sixth defence witness that homam was not done in this family at shradhs. There is no satisfactory evidence as to the gayatri mantram being recited it appears from para that Serfoji after his return from Benares when he was over fifty years of age introduced the innovation of thread wearing into this family and that he compelled certain important person priests and others to sign a statement such as the one signed by Balambat Bhat Goswami that he was a Kshatriya, and that he had the homam done and vedic mantrams chanted. The omission to go through the ceremony of upanayanam cannot be explained by 01 fang the instance of Rajputs who are not always careful to have it performed when their sons are between ten and twelve, it is not the lateness of the age when the ceremony is performed that is so striking as the dearth of evidence that it performed at all. Although Sivaji did penance and was allowed to undergo upanayaram when he was 47 years old, we do not hear of his brothers Sambaji or Ekoji performing it at any time. Nor is there any record of Sahu his grandson, who was a prisoner at Delhi, having gone through the ceremony. At Tanjore we do not hear of it before Sarfoji's time.
62. Then there is proof that Sudra cooks were employed at the Tanjore palace. Two of the cooks, defence seventy-eighth witness who is a Kallar and defence eighty-second witness, a Brahmin, have proved this fact. It is true that there wore Brahmin cooks also, but if the family was really a Kshatriya one, there would have been no need of Sudra cooks at all' One of the widows of the late Raja, Rani Ramakurmuamba Bai Saheba, was examined as a witness in Original Suit NO. 400 of 1907 m the Tanjore District Munsifs Court and she described herself then as a Mahratta Sudra. The deposition was recorded on commission in 1908 by Vamana Rao who was the Sirkele of the Palace department of the Collector's office and it is in the handwriting of Vamana Rao who according to defence 102nd wit ness, was the person who made the blue ink entries in the pedigree which show Fratapa Singh and Jaya Singh as sons of sword wives. As the description sword wives occurs in the original, there is no le reason to suspect Vamana Rao's. conduct, t in describing the Rani as a Mahratta is Sudra; he may have formed his own opinion that all the Tanjore Ranis were Sudras or he may have adopted the description given by the Rani herself. The it ninety-fourth defence witness says that as he was present at the time and that the deposition was read over to the Rani and g that she signed it. He also adds in cross-d examination that she was questioned about her husband's caste and that she mentioned e it first as Mahratta and then as Mahratta Sudra. In the settlement deed executed s in 1907 both this Rani Ramakurnararnba Bai and this witness before the Registration officer described themselves as Kahatriyas and the Rani is so described in the body of the document. Thus the probative effect of the description as to caste in the deposition is inconsiderable.
63. As regards the genealogy of this family, Tod in "Annals and Antiquities of Rajasthan," page 288, has given the genealogy of Sivaji. His ancestors are stated in the note to be Sambaji, Suttoji, Junkoji, Khailooji, Mahoolji, Oogarsen, Deoraj, Bhoraji, Seoji, Duleepji, Sujunsi and Ajeysi. Ajeysi was a Rana of Me war. According to Tod, Sujunsi was expelled from the country and became the founder of the Satara throne. Waring's History of the Mahrattas written in 1810 contains a statement at page 55 that "Shajee, the father of Sevajee, was an illegitimate descendant from the Rana of Oodaipoor, a prince of the highest rank among the Hindus" but he adds at page 57 that Jadoo Rao considered Shajee to be a wretched Kunbi. Kincaid in Volume I, page 112, says that Devrajji, one of the family of Udaipur, after a quarrel with the Rana of Udaipur, fled to the Deccan. His other name was Kakaji. Mr. Kincaid mentions another story that two brothers Khelkarnaji or Kheloji and Malkarnaji or Maloji came together from Udaipur to offer their services as free lances to the king of Ahmednugger, and that one of them died in battle and the other one was drowned. The latter left a son Babaji who purchased the patilki or headship of the village of Verul near Daulatabad and one of Babaji's sons was Maloji, the grandfather of Sivaji. These various versions do not agree with the pedigree prefixed to the lower Court's judgment nor with the inscription in the Tanjore temple. They are mutually destructive, the names differ and can only be reconciled on the hypothesis that some of them were aliases, and there is no proper explanation how a section of a Rajput house came to found a dynasty so far south. On the whole it must be said that historically, genealogically, geographically, socially and ceremonially, the claim of this family to be classed as Kshatriyas has failed and the lower Court's finding on this point must be confirmed.
64. In Choaturya Ram Murdun Syn v. Sahub Purhulad Syn (1857) 7 M.I.A. 18, it has been established by the judgment of the Privy Council that Kshatriyas still exist in India. The theory put forward in the Sudra Kamalakaram mentioned by Steele in his "Law and Customs of Hindu Caste" (1868), page 89, that Parasurama destroyed all the Kshatriyas and that they no longer exist, a theory said to have been started by a Brahmin conspiracy which Sir Thomas Strange in his Hindu Law, Vol. II, Appendix to Chapter IV, refers to, cannot be maintained in the face of the above decision : but in Muthusami Mudaliar v. Masilamam (1910) 33 Mad. 342, Sankaran Nayar, J., observed that there was a presumption that all castes who were not proved to be twice born and who were not admitted to be untouchables were Sudras. This judgment, which treats of the evolution of Hindu castes by occupation, migration and intermarriage, considers the criteria according to which new castes which have been evolved among the descendants of Hindus are to be considered as having retained the Hindu religion, and observes that the formation of new castes is a process which is constantly going on, has received the approval of the Privy Council in Ma Yait v. Maung Chit Maung A.I.R. 1922 P.C. 197, and it has been followed in Soundararajan v. Arunachalam Chetty (1916) 39 Mad. 136 by Sadasiva Aiyar, J. The onus being on those who assert that they are Kshatriyas to establish their claim, when they fail, the only course open to the Court is to treat them as Sudras.
65. The next question I shall deal with is the adoption of the father of defendants Nos. 1 and 2 and its validity. The adoption of Rajaram Ingle by Kamakshi Bai on 1st July 1863 was reported to the Government of Madras in a letter dated July 2nd addressed to Sir William Thoma-Denison, Governor of Port Saint George. The factum of adoption is not now denieds Objections are raised to its validity on be half of the fifteenth defendant on three grounds: (1) that the Raja did not authorize the adoption, (2) that it was made from an improper motive and (3) that the widow lost her power to adopt owing to the escheat of the property to Government. On behalf of defendants Nos. 4 to 11 further objections have been advanced:
(1) that the Tanjore family is governed by Mitakshara Law which they adopted after they settled in Tanjore;
(2) that the existence of inferior sons is a bar to the adoption; and
(3) that the adopted son's rights, if any, are barred by limitation.
66. It is settled on the authority of the Privy Council in Yadao v. Namdeo A.I.R. 1922 P.C. 216, that a widow in Bombay Presidency may adopt a son even without the authority of her husband or kinsmen provided that her husband has not prohibited it and provided that she does the act from spiritual motives. Again it is settled by another Privy Council decision in Balwant Rao v. Baji Rao A.I.R. 1921 P.C. 59, that the personal law of a migrating family will govern them in their new domicile if it was the personal law at the time of migration and provided that they have not renounced the law of the province from which they have migrated. Their Lordships approved of the decision in Vasudevan v. The Secretary of State for India (1888) 11 Mad. 157, to the same effect. But it is contended in the present case that at the time of the migration of this family to Tanjore about 1674 the law that a widow can adopt without the authority of her husband was not the law as expounded in Bombav. It is also contended that Kamakshi Bai acted from the bad motive of spiting the co-widows and depriving them of their shares. As to the first contention, the Mayukha was written by Nilakanta who was born about 1600 A.D. and lived in the first part of the 17th century. His work came into use by about 1700. In 1866 it was decided by the Bombay High Court in Baydbai v. Bala Venkatesh Ramakant (1866) 7 B.H.C.A. 1, that a Hindu widow in the Mahratta country could not adopt if her husband in his life-time had forbidden it. This case has come in for much criticism by the Judicial Committee in Yadao v. Namdeo A.I.R. 1922 P.C. 216, and the judgment of Westropp, J., has been critically examined. There was a later case decided in 1868 but reported earlier in Rakhmabai v. Radhabai (1868) 5 B.H.C.A.C. 181. In this the learned Judges accept the opinion of certain Pandits and Shastris to the effect that a woman can adopt in Bombay without the injunction of her husband; and in summing up at page 191 they do not make the consent of the kindred a sine qua non. At page 187, line 14, the learned Judges say that a widow ought to obtain the consent of the caste (gnatis) and that this corresponds with the custom of the country. In Yadao v. Namdeo A.I.R. 1922 P.C. 216, the Privy Council point out that this decision was based not merely on the custom of the country but also on the authorities prevailing in the Bombay Presidency. Ramji v. Ghamau (1882) 6 Bom. 498 (F.B.), is only an authority for the proposition that a widow of a coparcener has no power to adopt in an undivided family without the authority of her husband or the consent of the other undivided co-parceners. Yadao v. Namdeo A.I.R. 1922 P.C. 216, which was decided in 1921, has carried the widow's power to adopt in Bombay farther than it was carried by the same learned tribunal in the Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397, where it was only decided that the adoption with the assent of the kindred (gnati) was the law of the Mayukha. The law of adoption as it prevails in Bombay is not, however, dependent only on the authority of the Mayukha. There is also the Samskara Kaustubha and the Nirnaya Sindu which came into use about 1611. In Collector of Madura v. Moottoo Ramalinga Sathupathy (1868) 12 M.I.A. 397, the Mayukha and the Kaustubha are referred to as peculiarly Mahratta treatises, and a Full Bench of the Bombay High Court have also referred to the Kaustubha in Bhagirthibai v. Kahnajirav (1887) 11 Bom. 285 (F.B.). In Second Appeal No. 404 of 1885, the Bombay High Court observed that, though adoption in the Bombay Presidency is in a great measure governed by the Vyavahara Mayukha, yet the Kaustubha has great authority on this particular subject. In Rakhmabai v. Radhabai (1868) 5 B.H.C.A.C. 181, the Vyavahara Kaustubha is referred to for the purpose of understanding the Mayukha. The Nirnaya Sindu is also an authority to be considered, and also Kamalakara Bhatta's Dharma Sindhu.
67. The established law of Bombay as expounded by the Privy Council on the strength of all these authorities is that in that Presidency a widow can adopt even without being authorized by her husband or his kinsmen provided that he has not prohibited it. These law books only reproduce the pre-existing custom of the country. They do not enact a new law. It has not been shown that the law was in any way different before the time when this family migrated to Tanjore than it was held to be in later decisions of the Bombay High Court and the Privy Council. The Vyavahara Mayukha did not introduce a new law of its own but only declared the law prevailing even before it was written.
68. As to the next objection, there is no doubt that Kamakshi Bai acted in opposition to the other widows in the matter of the adoption and in some other instances, but the objection that she was actuated by improper motives may be answered in the manner that a similar objection was answered by a Full Bench in Ramchandra v. Mulji Nanabhai (1898) 22 Bom. 558 (F.B.), viz., by the observation that if the act can be referred to proper religious motives, the Court ought to presume that she was influenced by religious motives and not by mere caprice. There is no doubt that the Raja had expressed a desire for the continuance of his lineage.
69. As for the third objection, it has been laid down by the Privy Council in Pratabsingh Shivsingh v. Agarsingji Rajasangji (1919) 43 Bom. 778, that a widow may exercise the power of adoption so long as it is not extinguished or exhausted even though the property is not vested in her unless there is some time limit fixed by the power which is given to her to adopt. So even if there was an escheat, she may adopt for spiritual purposes; but the Privy Council has stated in The Secretary of State in Council of India v. Kamachee Baye Sahaba (1859) 7 M.I.A. 476, that there was no escheat. The annexation of the Raja's property was not on the date of the Kaja's death and there was nothing to prevent the Government, in dealing with the property as absolute owners, by sovereign right, from either making an original grant or restoring the property to those entitled to it by right of succession. If the widow had adopted after the Raja died and before the Best India Company intervened, the adoption would not have been invalidated by the subsequent act of usurpation. The act of usurpation did not cause a legal title to vest in the Government. This was made clear in the Privy Council decision. The suit was dismissed simply because the Municipal Courts could not question the act of the State. The Government when they restored the property put a restriction on the power of the widows to divest the estate, and the widows and the daughter were designated as persons who should take the estate first. Government had power to impose any kind of conditions as they pleased. They could have imposed a condition that the widow should not adopt, but they did not do so. The effect of the grant was only to postpone the rights of all heirs other than the widows and the daughter. The cases which have been cited to us Mussumat Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry (1865) 10 M.I.A. 279, Padmakumari Debi Chowdhrani v. Court of Wards (1882) 8 Cal. 302, Thayammal v. Venkatarama (1887) 10 Mad. 205, Taracharan Chathrji v. Stireshchunder Mukerji (1890) 17 Cal. 122, Krishnarav Hasabnis (1893) 17 Bom. 164, Ramkrishna v. Shamrao (1902) 26 Bom. 526, Vasudev v. Ramachandra (1898) 26 Bom. 56 (F.B.), Annammih v. Mabbu Bali Reddy (1875) 8 M.H.C. 108, Datto Govind v. Pandurang Vinayak (1908) 32 Bom. 499, Dattatraya Bhimrao v. Gangahai A.I.R. 1922 Bom. 347, Yeknath Narayan v. Laxmibai A.I.R. 1922 Bom. 347, and Shri Dharnidar v. Cinto (1896) 20 Bom. 250, are all cases in which the widow's power of adopting came to an end owing to the estate vesting in some other full owner. See also Tripuramba v. Venkataratnam A.I.R. 1923 Mad. 517, which distinguishes Madam Mohana Deo v. Pumshottama Deo A.I.R. 1918 P.C. 74. The legal title never vested in Government after the annexation. Though previously the ownership was vested in a person who was not a subject of the Government, by the declaration of Government he became a subject with retrospective effect. The allegation that the family adopted the Mitakshara Law after they settled in Tanjore has not been substantiated. In several legal proceedings they quoted the Mayukha law as being that applicable to the family. In 1904, Rama Bai who was the senior widow after the death of the adopted son brought a suit to establish her right to the properties and it was then held that she and the remaining widows carried their personal Mayukha Law with them. In Rama Bai Ammani v. Rajah Sahib (1920) 12 L.W. 171, this Court noted the cirumstance that the Mayukhi law was that which the Subordinate Judge had found to be the personal law of this family which migrated from Poona. Although the family appears to have employed Telugu purohits at funerals and to have adopted some practices of South India, and they appear to have worshipped Mari Amman, and other South Indian deities, they preserved many of their own habits, like Sunmukt which are peculiar to the Mahrattas. There is evidence that the Telugu purohit was acting under the supervision of the western purohit named Bhat Goswami (see the evidence of D.W. 91). (The mere employment of local priests under the supervision of family priests is not sufficient to show that the local law his applicable to a migrating family; Huro Pershad Roy Chowdhry v. Shibo Shunduree Chowdhrani (1870) 13 W.R. 47, and Murk Dos v. Manicka Chetti (1897) 5 M.L.T. 181. Even if it be held that this family was governed by the Mitakshara Law I should be prepared to find that the authority given by the Baja's mother, Avu Saheba, amounted to the consent of a kinsman which the Mitakshara Law requires vide the Collector of Madura v. Moottoo Ramalinga, Sathupathy (1868) 12 M.I.A.
397.
70. The Subordinate Judge has rightly held that the adoption in the present case was not barred by the existence of the children of sword wives. The right of the sword wives' sons to take the shares of legitimate sons in the property and their power to invalidate the adoption stand on the same footing. If sword marriage is a valid form of marriage for one purpose, it is good for the other purpose also. But not so, if they are only entitled to take shares of illegitimate sons of a Sudra. The existence of illegitimate sons is not a bar to the spiritual benefit which is attained by the adoption of a legal son. There is no decided case which may serve as an authority for the view that an adoption is illegal when the adoptive father has sons by a sword wife.
71. The last objection is that of limitation. It is argued that by Act IX of 1871, which provided a 12 years' period of limitation to establish an adoption, the adopted son's rights became barred in 1875 and that it was obligatory to establish his rights within the period prescribed by article 129 of that Act, which gives 12 years from the date of the adoption after the death of the adoption father. If the right became barred under the Act of 1871, it could not be received by the later Act of 1877 which split article 129 "to establish or sat aside an adoption" into two articles, 118 "to obtain a declaration that an adoption is invalid when the alleged adoption becomes known to the plaintiff," and 119 "to obtain a declaration when the rights are interfered with." In all the cases cited to us, viz., Jagdamba Chaodharani v. Dakhina Mohun Ray Chaodhri (1886) 13 Cal. 308, Mohesh Narain Munshi v. Taruck Nath Moitra (1893) 20 Cal. 487, Karnabh Pershad v. Mandil Dass (1901) 27 Cal. 379,Ratnamasari v. Akilandammal (1903) 26 Mad. 291, Venkoba Rao v. Nalraja Cheltiar (1914) M.W.N. 903, and Somasundaram Chettiar v. Vaithilinga Mudaliar (1917) 40 Mad. 846, the adoption was followed by possession. The father of Defendants 1 and 2 might have brought a suit for a bare declaration under Section 15 of Act VIII of 1859 which was in force till 1871; but it was not obligatory for him to do so. It was a contingency whether his right would materialise or not. If the daughter had survived all the widows, the adopted son would not have succeeded in preference to her. The case of Bright v. Tyniall (62) may be referred to. A distinction is there drawn between an interest that has arisen and is represented and an interest that has not arisen and may never arise. In an interpleader suit like the present not only the adopted son but also other claimants are in the position of plaintiffs and a suit to establish the adoption by the former is not more barred under article 129 of Act IX of 1871 than the suit of the latter to declare it invalid. The possession of the Receiver was not adverse to the adopted son nor to any of the other claimants and so time did not begin to run from the date of the adoption. So far as possession was concerned, the adopted son by bringing a suit to establish his adoption during the lifetime of the widows could not have been given the further relief of possession against the Receiver, for the grant had secured the enjoyment of the widows till the death of the last. As for the other parties the cause of action to set aside the adoption will only arise when possession is taken under colour of adoption vide Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhari (1886) 13 Cal. 308, and Tirbhuwan Bahadur Singh v. Rameshar Baksh Singh (1906) 28 All. 727; and the adopted son and his heirs have never obtained possession except for a brief period between Kamakshi Bat's transfer and the appointment of a Receiver in a execution of the decree in Jijoyiamba Bayi Saib v. Kamakshi Bayi Saiba (1868) 3 M.H.C. 424. The adopted son was bound by the decision in that case, to which he was a party, to the effect that he had no present right as lineal heir of the Raja to divest the widows. He could not have got a bare declaration that his title as adopted son was valid, as the Court will not try questions of title as to future interests when neither claimant has a right to present possession, especially questions of title which may never arise see Kathama Natchiar v. Domsinga Tevar (1876) 2 I.A. 169. The obligation of suing only arises when the possession is with an adverse claimant. As the Receiver was in possession, the adopted son could wait till the last female died and sue for possession of the property as his heirs have done. see Mahammad Umar Khan v. Muhammad Niaz-ud-Din Khan (1912) 39 Cal. 418. In 1881, the adopted son presented a petition for a succession certificate which was dismissed by Mr. Parker (afterwards Mr. Justice Parkar) as there was no valid authority to adopt and no valid taking in adoption. The District Judge's decision was confirmed by the High Court in Surfoji v. Kamahshiamba (1884) 7 Mad. 452, on the ground : that no inquiry need be held in miscellaneous petitions into intricate questions of law and fact. As there was no final adjudication on the validity of the adoption, that decision will not estop defendants Nos. 1 and 2 from putting forward their claim in the present case.
72. In the above mentioned aspect of the widow's power to adopt of her own free will, it becomes unnecessary to find as a fact whether the late Raja authorized the adoption of Rijaram; but, if a finding is necessary on this point, I should hold on the evidence that nothing more than a designation of this boy as a suitable boy to be adopted, if an adoption were to be made, took place, and that no express authority was given by the Raja on his death bed to his widows to adopt.
73. [His Lordship then referred to the evidence in support of the above finding and proceeding further, held that the fourteenth defendant was an agnate.]
74. The next question is what shares the children of the sword wives take. All the parties are agreed that they take per stirpes. The doctrine of representation applies to the illegitimate sons as well as to the legitimate sons. See GoPalasami Chetti v. Arunachellam Chetti (1904) 27 Mad. 32, and Ramalinga Muppan v. Pavada Goundan (1902) 25 Mad. 519. According to the latest Privy Council decision in Kamulammal v. Visvanathaswami Naicker A.I.R. 1923 P.C. 8, an illegitimate son of a Sudra takes half of what he would have taken had he been legitimate. As the Raja left six illegitimate sons and one son has been since adopted, the estate must be divided into seven Bhares. The sword wives' sons will get three-sevenths and the adopted son will get four-sevenths of the whole. In Kamulammal v. Visvamthaswami Naicker A.I.R. 1923 P.C. 8, there was a widow in existence who took along with the illegitimate sons. At the date of the present suit there was no widow alive, and therefore there is no difficulty in making the apportionment.
75. In paragraph 2117 of the lower Court's judgment, the Subordinate Judge states that the seventeenth defendant is the nearest bandhu, because all the other bandhus are at least one degree more remote. This is incorrect. The seventeenth defendant is the sister's grandson. The third defendant, being a daughter's grandson, is nearer to the propositus the last Raja Sivaji; and the authorities, Mayne, Trevelyan, Ghose and Sarvadhikari are all agreed upon this. They put the daughter's son's son at No. 2 before the sister's grandson at No. 10, giving the descendants preference over ascendants.
76. The Subordinate Judge has found the adoption of Sambu Singh by Sakharam Saheb who married the Princess Muktamba Bai and also the adoption of the third defendant by Sambu Singh to be proved. The adoption of Sambu Singh by Sakharam is not now seriously challenged. But the adoption of the third defendant by Sambu Singh is attacked on the ground that Sambu Singh was not in a state of mind capable of making an adoption at the time when it took place.
77. [His Lordship referred to facts, and evidence relating to the point and continued:]
78. It is evident that the patient was in extremis, and when we know that he was delirious and not in full possession of his faculties, the onus lies on those who propound the adoption of proving that he was in a fit state of mind to perform the act of taking the child in adoption with a proper consciousness of the nature of the act that he was performing vide Tayammaul v. Seshachalla Ndicker [1868] 10 M.I.A. 429. The conduct of Sakharam in contemplating the adoption of a son to himself in 1897 as shown by his letter to the Collector and the Collector's reply betrays a consciousness on his part that the adoption of March 4th, 1801 was not a good adoption. After the Collector reminded him of his telegram he executed a will in favour of another boy. As the daughter's igrandson can only take as a bandhu after the agnates, the question of the third defendant's adoption has now only an academic interest. If it is necessary to record a finding on the point, I should reverse the finding of the Subordinate Judge and find that the third defendant's adoption is not proved. If there was no evidence available beyond the fact that he was recognized as an adopted son, I should be prepared to accept the adoption as proved but when the adoption is challenged by the other parties and there is an attempt to prove by direct evidence how and when the adoption was made, the onus being on him, and he fails to prove the fact, he must abide by the consequences.
79. The last question relates to the claim of the 24th defendant, whom the lower Court has found to be nearer than the 15th defendant in propinquity to the deceased.
80. [After discussing evidence and confirming the lower Court's finding on this point, His Lordship concluded:]
81. The net result of these appeals will be that the lower Court's decree will be modified by directing that the suit properties be divided into 7 instead of 8 shares, out of which defendants Nos. 1 and 2 will take 4 shares and defendants Nos. 4 to 11 will take the remaining three shares per stirpes, and by confirming the decree of the lower Court in other respects, dismissing the Appeals Nos. 199, 200, 201, and 248 and modifying the decree in consequence of Appeals Nos. 333 and 334. Costs of the appellants in all the appeals to come out of the estate, as was ordered in the lower Court, seeing that this is an interpleader suit and the contentions of the appellants have been reasonable and fairly argued, and they adopted each other's arguments so far as they suited their particular cases. The memoranda of objections, except those of second defendant, which follow the result of Appeals Nos. 333 and 334, are dismissed.
82. We are much indebted to all the practitioners, counsel, and vakils, who have appeared in these appeals for the infinite pains they have taken in scrutinizing and analysing the masses of evidence on the record and the keen legal acumen and rare learning they have displayed in presenting the various questions of law that have had to be decided and in dealing with the interesting historical records of this famous family. I am fully conscious that much more might be said upon some of the questions at issue, especially that of the caste of the parties, but I have endeavoured to avoid prolixity and to make my judgment as succinct as possible, on the principle that if there are sound reasons for deciding a particular point in a particular way, those reasons rather gain than lose clearness by not being obscured by references to matters of minor importance.
Kumaraswami Sastri, J.
83. [His Lordship narrated facts and set out the rival contentions of the parties, and proceeded:]
It will thus be seen that the main questions to be decided in these appeals are-
(1) What is the construction to be placed upon the re-grant by the Government of the private propert ies of the late Maharaja Sivaji?
(2) Whether the issues by a wife married in sword marriage form legitimate or illegitimate?
(3) Whether there was in fact sword marriage contracted between the late Sivaji Maharaja and the mothers or grandmothers of defendants Nos. 4 to 11?
(4) Whether the parties are Sudras or Kshatriyas?
(5) Whether the Mayukha or Mitakshara applies to the parties?
(6) Whether the adoption of defendant Nos. I and 2 is valid?
(7) If defendants Nos. 1 and 2 and 4 to 11 are to be excluded, which of the other parties have proved that they are the next descendants of Sivaji? and
(8) If defendants Nos. 1 and 2 and 4 to 11 are entitled to succeed, what are their respective shares in the estate?
84. Before dealing with the grant by the Government it is necessary to consider the circumstances under which the private estate of the late Raja was granted by the Government by its order, dated the 21st of August 1862 which has been filed as Exhibit A-46 in the case.
85. [After setting out the circumstances under which the order of 1862 was passed. His Lordship continued:]
86. It is unfortunate that we have not got all the correspondence which passed between the Madras Government and the Government of India and the Home authorities. Exhibit A-37, dated the 23rd of June 1862, which is a letter from the Secretary to the Government of India, Foreign Department (Political), to the Chief Secretary to the "Government of Port St. George, throws considerable light on the reasons which prompted the restoration of the private property. It runs as follows:
I am directed to acknowledge the receipt of your letter, dated 17th ultimo, No. 194, soliciting further instructions regarding the disposal of the landed property of the Tanjore Raj and in reply to state that, since it is doubtful whether the lands in question can be legally dealt with as State property, and since the plea in equity and policy for treating them as the private property of the Raj is so strong that it commands the unanimous support of the members of the Madras Government, the Governor-General in Council sanctions the relinquishment of the whole of the lands in favour of the heirs of the late Raja.
87. This letter shows that the Government recognized the doubtful nature of the seizure of the private property and that it wanted to relinquish that property in favour of the persons who would have been rightly entitled to it as the heirs of the Raja but for the seizure. Exhibit A-46 which evidences the re-grant begins by referring to Colonel Durand's letter and paragraph 2 states that the relinquishment in favour of the heirs of the Raja having been settled,
88. "It has to be determined on what principles the distribution of the property both real and personal shall be made, or in other words, what are the respective rights of the Raja's widows and of his daughter. The Government have now before them the opinion of the Hindu Law officers of the Sudder Court on a question put with the view of ascertaining the Hindu Law as applicable to the case.
89. The words "relinquishment of the whole of the lands in favour of the heirs of the late Raja" show clearly that no person who would be the heir at the time or subsequently was to be excluded and that, though technically the relinquishment may by virtue of the anterior seizure in the professed exercise of sovereign rights have the effect of a fresh grant, there was as far as possible to be no break with the past and no change for the future, things being put in the same position as if there had been no seizure. The position therefore was that it was resolved to relinquish the property which had been seized and the Government was anxious to give it back to the heirs of the Raja, i.e., to the persons who would have taken the property on the death of the Raja, had there been no seizure. The adoption of Rajaram Ingle, the father of the first and second defendants, by Kamakshi Bai Saheba was on the 1st July 1863, so that on the date of the Government Order of the 21st of August 1862 there was no adopted son in existence to claim the property. It is no doubt true that attempts were made to set up the claims of Rajaram Ingle to the Raj soon after the Raja's death on the ground that he had been brought up by the Raja with the intention of adopting him and that he had performed the funeral ceremonies with the knowledge and consent of the Resident; but it was admitted that no ceremony of adoption had been performed by the Raja. Mr. Forbes had at the earliest opportunity denied that Rajaram Ingle was adopted by the Raja or had any claims as such. The plaint in the suit by Kamakshi Bai Saheba against the East India Company to which the Secretary of State for India and the other Ranis were parties specifically stated that the Raja had died leaving neither a natural son or a son by adoption and that consequently Kamakshi Bai Saheba was the sole heir under Hindu Law. None of the parties to that litigation which was the chief cause of the restoration of the private property in 1862 ever Bet up the rights of the adopted son and legal proceedings went on on the footing that the only persons entitled to the estate were the widows. Between the disposal of the suit by the Privy Council and the re-grant nobody ever set up the rights of the adopted son and all the petitions and memorials which were submitted and which led to the restoration of the property were submitted by Kamakshi Bai Saheba and other widows. There is nothing in the memorials to the Government which states that an adoption was going to be made before the date of the re-grant.
90. Under these circumstances it is difficult to hold that the Government had in view the rights of Rajaram Ingle, the father of the first and second defendants or that it would have, if the adoption had been made before 1862 and was otherwise valid under Hindu Law, excluded him from succession.
91. So far as the Mangala Vilas sons are concerned, it had been assumed from the very commencement by all parties that the Maugala Vilas ladies, though called sword wives, were in effect only in the position of permanently kept concubines of the late Raja and that the sons by them of the Raja were illegitimate. It was stated by Kamakshi Bai Saheba in the suit she filed against the Secretary of State and which has been already referred to that the deceased Baja was a Sudra by caste. This fact was admitted by the East India Company in the answer to plaintiff's interrogatories and the judgment of the Supreme Court affirmed this. Under the law as then understood the illegitimate sons were postponed to the widows and the daughters and there was no question of any immediate rights of the Mangala Vilas children or any motives for excluding them, if there were no preferable heirs in existence when the last of the widows died.
92. Exhibit D-240 is a judgment of this Court in 1865 where it was held that an illegitimate son of a Sudra is postponed to his widow. Though it was reversed by the Privy Council on the facts of the case, the law was not dissented from. Sir Thomas Strange in his Hindu Law, page 69, published long before 1882, states that the illegitimate son takes after the daughter. I may also refer to Parvathi v. Thirumalai (1887) 10 Mad. 334. It was only so late as the year 1909 that it was finally decided inMeenakshi Anmi v. Appakutti (1910) 33 Mad. 226, that the illegitimate son takes with the widow and is not excluded. Mr. Norton who was at one stage of the proceedings authorized to act for the Mangala Vilas ladies never set up any independent claim of the Mangala Vilas ladies 'or their sons to the private property of the Baja but contented himself with claiming and getting the restoration of the properties which belonged to the Mangala Vilas. Nobody at the date of grant thought of getting up the claims of the Mangala Vilas sons who were then little boys. Pensions had been granted to them by the Madras Government which were being received by the Mangala Vilas ladies. There is no ground for thinking that the Government had in view the rights of the Mangala Vilas sons when it made the grant and wanted to exclude them from succeeding. The only persons before the Government who had any present right according to the state of facts which were then before the Government were the only surviving daughter of the Raja and the widows who were married according to the orthodox ritual. Of these ladies Kamakshi Bai Saheba was the eldest and questions arose as to the rights of the daughter, and of the widows infer se. It is these questions that the Government wanted to solve by reference to the Pundits, and they wanted to solve them with reference to the rights of the parties under Hindu Law. Of the Baja's two daughters, the elder died on the 26th September 1856 and the younger who was nine years old at the date of his death married Sakharam Saheb, the husband of her deceased elder sister in 1860. They adopted one Sambu Singh on the 3rd July 1884. The junior Princess died on the 31st January 1885. Her husband died on the 28th January 1895. Sambu Singh died in March 1891 after adopting the third defendant on 4th March 1891.
93. It is abundantly clear that the Government wanted to wash its hands of the private properties of the late Baja and did not reserve to itself any interest when it made the grant in 1862. While on the one hand it wanted to safeguard the property from waste and the consequent prejudice to the reversionary heirs, it did not want to prefer one heir to the other or to exclude persons who would be the heirs of the Raja when according to the Hindu Law succession to the Raja who was the last male holder, opened on the death of the widows. It should be remembered that there were 17 widows at the date of the Raja's death, some of whom were girls who had not even obtained puberty. In the ordinary course of things it would have taken several years for. the last of them to die and I find it difficult to believe that the intention of the Government was to cut out the nearer branches in favour of branches more remote, if such nearer branches should exist, when succession opened in the distant future.
94. Various contentions were raised by the parties as to what estate each of the persons specified in the Government grant took, and as to whether the interest taken was vested or contingent. So far as the widows, daughter and the other heirs of the Raja are concerned, it was contended by Mr. Grant for the fifteenth defendant that the widows took what under the Hindu Law would be a widow's estate, that they represented the whole inheritance leaving nothing but a spes successionis to those who come after them and that the Government having exhausted the whole estate by conferring it on the widows left no remainder to anybody else. He contends that the reference to the daughter and the next heirs of the Raja are descriptive of the nature of the estate granted to the widows and that the widows are the only dnees, the other words in the grant being words of imitation appropriate to the character of the widow's estat?. Mr. Raja Ayyar for the third defendant contended that what was given to the widows was only a life estate, that the daughter got a vested remainder capable of transmission to her heirs and that any estate which the next heirs of the Raja may take was contingent on the death of the daughter and on there being no heirs of her own to succeed her under Hindu Law. Mr. Alladi Krishnaswami Ayyar for defendants Nos. 4 to 11 contended that the widows took a life estate, that the estate taken by the daughter was contingent on her surviving the widows and that, if she predeceased the widows, the estate went to the next heirs of the Raja who were to be ascertained at the date of the death of the last Rani. He adds that so far as his clients are concerned, it does not matter whether the estate taken by the daughter was vested or contingent, as, even if it was vested, it was defeasible on her predeceasing the widows and that there is nothing in law to pre. vent a vested estate from being defeasible.
95. In dealing with the estate which the widows took, the actual words of the grant do not throw much light. The important words of the grant are:
the estate will therefore be made over to the senior widow who will have the management and control of the property, and it will he her duty to provide in a suitable manner for the participative enjoyment of the estate in question by the other widows - her co-heirs.
96. There are no powers of alienation in terms given to the widows; but reading the document as a whole and having regard to the intention of the Government to dispose of the property in a manner that would least conflict with the Hindu Law as then understood, I think the Government intended to confer an estate in several respect analogous to that taken by a Hindu widow by inheritance.
97. The question whether it is open to a stranger to create what would strictly be a Hindu widow's estate in property by a grant or devise is not free from doubt. In Vengamma v. Chelamayya (1913) 36 Mad. 484, the learned Judges doubted if a Hindu widow's estate can be conferred by a stranger by grant or devise, but in Ram Bahadur v. Jagar Nath Prasad (1918) 3 P.L.J. 199, it was held that such an estate can be conferred. The grant being a Crown grant, Act XXV of 1895 (Grown Grants Act) which is made retrospective applies and the grant must take effect according to its tenor irrespective of the Hindu Law. There is, however, nothing to prevent a grant imposing many of the limitations which would be imposed by Hindu Law upon a widow succeeding as heir without altering the course of succession. I am unable to agree with the contention of Mr. Grant that because the Government intended to grant an estate to the widows which should be analogous to an estate taken by a Hindu widow, there could be no gift over to anybody. The impossibility of a gift over to somebody would only arise if the action of the Government can be taken to be a mere restoration of the estate wrongfully seized and not a fresh grant but as pointed out by the Subordinate Judge in paragraph 656 of his judgment all the parties were agreed before him that the properties being vested in the Crown and granted by it again, there was no lineal descent or direct inheritance from the Raja as would have been the case if the act of state had been annulled and succession was therefore governed primarily by the terms of the grant. They take the same ground before us on appeal. It was on this ground that the Jijoiamba Rayi Saiba v. Kamahshi Rayi Saiba (1868) 3 M.H.C. 424, case negatived any present right in the adopted son to divest the widows and it is contended with considerable force by Mr. Raja Ayyar who appears for the third defendant that if the Government really conferred a strict widow's estate with all the incidents attached thereto the divesting by the adopted son is one of the incidents which is in separable from the widow's estate, and that it is no answer to say that the confiscation put an end to divesting by the adopted son, as the grant of a pure Hindu ' widow's estate would carry with it the lia a bility of being divested by an adopted son the divesting being not because of a claim by inheritance but of a claim by virtue of the terms of the grant conferring a Hindu widow's estate with all its incidents.
98. Much stress was laid on the use of the al word "inherit" in the grant, Exhibit A-46. m There can be little doubt that if confiscation put an end to all antecedent rights and rights have to be determined on the la footing of a fresh grant, the words "inherit" and "next heirs" cannot have their ordinary co meaning of taking property by virtue of intestate succession "inherit" must only mean "take."
99. It has been argued that the use of the word "inherit" in the grant precluded any idea of a gift in favourof the daughter of next heirs. I do not think that this is so; and I need only refer to Bhagabati Barmanya v. Kalicharan Singh (1911) 38 Cal. 468. In that case that testator by his will after giving his properties to his will after giving his properties to his mother and wife for life directed that after their death the property should go to his sistter's sons who were then in existence and who may be born thereafter in equal shares and that they were "to hold the said properties in possession and enjoyment by right of inheritance" Their Lorships of the Privy Concil at page 472 observe as follows:
It convenient at the outset to dispose of a point suggested by the words by right of in heritance. It was said that there was really no bequest in favour of the nephews, and that so far as they were concerned, the will only declared the right of inheritance. The High Court had no difficulty in rejecting that contention, and their Lordships are of the same opinion.
100. I think the word "inherit" in the grant of simply means "take." In John Lloyd be Vaughan Watkins v. Arthur Frederick (1865) 11 H.L.C. 358, the words used were the elder son "to inherit" before the younger. Lord Chancellor (Westbury) was of opinion that the to words "to inherit" were used as simply equivalent to the verb "to take." Under ho Hindu Law the husband of a woman and he his heirs would succeed to the absolute properties of the woman in preference to its her father and his heirs and it could not it have been the intention of the Government a to divert the line of succession to Sakharam id Saheb, the daughter's husband and to his s heirs, if she died issueless before the in widows. I am clearly of opinion that u "failing her" does not mean "failing her and her heirs" as contended for by Mr. Raja Ayyar who appears for the third defendant - the adopted son of the adopted f son of the daughter. I am also of opinion that the words "the next heirs of the late Raja" mean the nearest heirs of the Raja at the time when succession opened and do not mean the heirs next after the daughter. No authority has been cited for the contention that the words "the next heirs of the late Raja" must necessarily mean the heirs after the daughter. It will lead to strange consequences to hold that when properties are given to two of the relations of a person who are related to the donor, and it is provided that on failure of them or the second of them, the next heirs of the donor should take the property, all the persons who would under the Hindu Law of inheritance, be heirs in preference to the heirs of the second donee should be excluded. Suppose, for example, a man gives or bequeaths property to his wife to be enjoyed for her lifetime and then to his sister's son for whom he has a great affection and provides that, if the sister's son dies before the widow, the property. should go to the donor's or testator's next heirs. Can it be said that because the sister's son is only a Bhandu (cognate), and comes much lower down in the table of succession after the list of agnatic heirs, all the agnates of the donor (e.g., his brother's son) would be excluded and the property should go to one further removed in succession than the sister's son? Such a construction would lead to absurd results. I see no reason for holding that the words "next heir" should not be used in the ordinary sense of "nearest heir." Ordinarily the words "next heir" mean the nearest, rightful or true heir. Reference may be made to Section 80 of the Succession Act where the words, heirs, right heirs, relations, nearest relations, family, kindred, nearest of kin, next of kin are used and where it is stated that in such cases the nearest heir in the table of succession to the testator takes the property. In Doe v. Chaffey (1847) 16 M. & W. 656, it was held that "next heir" means the true heir when the gift takes effect and not the person next in order to the first son. Numerous cases were cited dealing with vested and contingent remainders and the construction placed by Courts on wills conferring successive estates. I think that several of the cases cited have no application to the facts of the present case.-The principles which ought to guide Courts in the construction of wills, many of which apply with equal force to the construction of grants, have been laid down with great clearness by their Lordships of the Privy Council in Narasimha v. Parthasarathy [1914] 37 Mad. 199. It has been pointed out in more cases than one by their Lordships of the Privy Council that the construction placed on the terms of one document is not a safe guide for construing another and I think the following observations of Lord Shaw in Lucas Tooth v. Lucas Tooth [1921] 1 A.C. 594, may well be borne in mind in dealing with the cases cited:
My Lords, there are two things in construction which ought to be avoided: the first is the danger of misplaced analogy and the second is the treatment of a stated category as necessarily exhaustive of the possibilities of signification of a term employed.
101. I think that unless the terms of the grant, Exhibit A-46, clearly render it necessary to do so the nearer heirs of the Baja under Hindu Law ought not to be excluded in favour of remoter heirs. I can see no such intention in the grant, Exhibit A-46, which only dealt with the widows and daughter, the next heirs under Hindu Law then in existence. It has been argued that the mere fact that the adopted son would ordinarily take before the daughter implied that the Government wanted to exclude him. I do not think this result necessarily follows. It is competent to a Hindu having power to deal with his property by will to direct an adoption to be made by his widow and to postpone the rights of the adopted son to possession and enjoyment of the properties till after the death of his widow. It is also competent to the widow and the adopted son if he is a major, to agree that the adopted son shall get possession of the properties only after the death of the widow; and the decision in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C. 424, above referred to that the adopted son had no present right may be rested on the ground that the Government having given the properties to the widows as persona designata to be enjoyed by them for their lives with rights of survivorship necessarily excluded the adopted son from claiming possession or enjoyment during the lifetime of the widows. There is nothing to prevent estates being granted to take effect on the death of a Hindu and a woman's estate being treated merely as interposition and for succession to be traced to a deceased person on the analogy of the ordinary Hindu Law where the last male owner dies leaving persons who are entitled either simultaneously or in succession to what is known as a woman's estate. In such cases it is well settled that succession is traced to the last male holder on the supposition that he died on the date of the death of the holders of limited estates. Persons might come into existence who are nearer heirs to those existing on the date of his will or grant who may have taken earlier if in existence but who are postponed by the express terms of the grant. In cases of a Hindu widow obtaining estate by adverse possession as against a preferential heir of a deceased person, where circumstances indicate that she prescribed only for a widow's estate, it has been held that the heir of her husband succeeds even though he might have preference to the widow under the ordinary Hindu Law and would have taken before her but for her taking possession. I need only refer to In re Prattipati Seshyya (1912) 11 M.L.J. 261. In dealing with the estate taken by the widows under Exhibit A-46, I do not think it makes any difference whether the widows took what in law would be a strict Hindu widow's estate or whether they took an estate in several respects analogous to it or merely an estate for life, because it seems to me to be clear that whatever view may be taken, it is competent for remainders whether vested or contingent being tacked on to the estate conferred on the widows by the grant. In Mahomed Shumsoo v. Shewukram (1874) 2 I.A. 7, property was conveyed by a Hindu to the widow of his deceased son. The document recited that 'except her none other is nor shall be my heir and malik.' It also recited that his daughter-in-law had two daughters "and that the two daughters named above, together with their children who, after their marriage, may be given in blessing to them by God Almighty, are and shall be heir and malik," The daughter-in-law who was the first donee borrowed moneys and sold the property comprised in the will. A suit was filed for the daughter's son for declaring his right as reversioner and for cancelling the sale. The High Court passed a decree setting aside the sale on payment of Rs. 14,000 which was all they held was binding on the reversioner. An appeal was filed to the Privy Council and their Lordships of the Privy Council confirmed the decree of the High Court. In dealing with the nature of the estate taken by the first donee, their Lordships held that
She did not take an absolute estate but that she took the estate subjoot to hoi daughters succeeding her in that estate : whether succeeding her as heirs of herself or succeeding her as heirs of the original testator is immaterial.
102. As regards the use of the word "heir" their Lordships observed:
it would appeal that the testator uses the word "heir" as signifying the person who is to take immediately in succession to another, that be applies it to the Rani as the person who is to take in immediate succession to him, and to the two daughters as the persons who are immediately to succeed to the Rani," and their Lordships think that, viewing the will as a whole, when he uses the expression "except Mussamat Rani Dhim Kowur aforesaid, none other is nor shall be my heir and malik," it may be fairly construed as meaning that she shall take a life interest immediately succeeding him without that interest being shared by her daughters or by any other person. In another portion of the judgment dealing with the power of the widow to confer an absolute estate if there were debts to pay, their Lordships observe:
they apprehend the law to be this; that Rani Dhun Kowur, who may be considered as very much in the position of a Hindu widow might have sold the estate absolutely if it could have been shown (and the burden of showing this is upon the purchaser) that to convey such an absolute estate was necessary in order to pay the debts of the testator, and was for the benefit of bis estate generally.
103. This decision is important as showing that there is nothing illegal in an estate analogous to a widow's estate being granted to A and to a gift over being made to other persons. There is another ease in the same volume Mussumat Bhagbatti Daee v. Chowdry Bholanath Thakoor (1875) 1 Cal. 104. In this ease one Odan Thakoor adopted his brother's son Girdhari Thakoor. He had at that time a wife called Mussumat Chundarbutti and a daughter of Mussumat Suntbutti. Shortly before his death he executed a document, which was construed in this case, in favour of the adopted son, and got a document in similar terms from his adopted son. In the document executed by Odan Thakoor he gave his daughter Mt. Santbutti a certain share in the property
for her maintenance in order that she may enjoy possession of the same with her children, as proprietress and thus pass her days.
104. He gave certain other properties to his wife
to be enjoyed during her lifetime, in order that she may hold possession of all the properties and milkiut possessed by me, the declarant, during her lifetime, and by the payment of the Government revenue, appropriate the profits derived therefrom, but that she should not by any means transfer the milkiut estates and the slaves, that after the death of my aforesaid wife the milkiut and household furniture shall devolve on Girdhari Thakoor, my kurta (adopted son) and that no objection thereto raised by any one shall be ever held valid,
105. The Subordinate Judge construed the document as giving Ghundarbutti an estate for life with power to appropriate the profits, and to Girdbari, the adopted son, a vested remainder on her death. On appeal, the High Court differed from the Subordinate Judge and observed as follows:
Shortly, the effect of the two ikrarnamas which have been read to us appears to be this, that by an understanding between Odan Thakoor and his adopted son, carried out in those instruments, it was agreed that notwithstanding the adoption Chundarbutti should take and enjoy the estate of her husband, whose death was then apprehended and which did shortly afterwards occur, in the same mode as she would have taken and enjoyed it, if no adoption had taken place "that is in her character as a Hindu widow. Their Lordships of the Privy Council disagreed with the view of the High Court and stated that there was no evidence to show that there was any understanding as that referred to by the High Court and obsered as follows:
If she took the estate only of a Hindu widow, one consequence, no doubt, would be that she would be unable to alienate the profits, or that at all events, whatever she purchased out of them would be an increment to her husband's estate, and the plaintiffs would be entitled to recover possession of all such property, real and personal. But, on the other band, she would have certain rights as a Hindu widow; for example, she would have the rights under certain circumstances, if the estate were insufficient to defray the funeral expenses or her maintenance, to alienate it altogether. She certainly would have the power of selling her own estate; and it would further follow that Grirdhari would not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the Statute of Limitations might run against the heirs to the estate, whoever they might be. Their Lordships see no sufficient reason for importing into this document words which would carry with them all these COD sequence?, and they agree with the Subordinate Judge in construing it according to its plain meaning.
106. In Ram Bahadur v. Jager Nath Prasad (1918) 3 P.L.J. 199, one Fateh Chand died, leaving a widow Mb. Sheodei Kuer and his brother's daughter Mt. Bibi Sabodra. He executed a will to the effect that should any son or daughter be born to him during his life-time such son or daughter should be the owner of the property, that if there be no son or daughter, his niece should take a bequest of a lakh of rupees, that the rest of the moveable and immovable properties should remain in the possession of his wife till her death and that after her death it should pass to his niece, but that if on the death of his wife and niece there should be living a son and a daughter born to his niece, they, should share it in the proportion of two-thirds and one-third. After the death of the widow, Sabodra alienated certain properties and the question was whether the alienation was valid beyond her lifetime. It was held that Sabodra did not take an absolute estate by inheritance giving her unfettered rights of alienation but an estate which the Hindu Law confers on a woman who inherits in case of intestacy, that such an estate is capable of being granted by grant or by will and that the estate of those who took after the niece was a contingent and not a vested remainder. These decisions are authority for holding that even if a widow's estate was granted, there can be a remainder fastened upon it.
107. A question was raised in these appeals as to whether the period when the heirs of the Raja were to be ascertained was the date of the grant or the date of the death of the last Rani. On this point it has been held that no general rule can be laid down but that is a question of construction which will yield to the context. I need only refer to Hutchinson v. National Refuges for Homeless and Destitute Children (1920) A.C. 794 and Lucas Tooth v. Lucas Tooth [1921] 1 A.C. 594. There is nothing in law to prevent a person taking as heir of the testator or donor by virtue of his satisfying the requirements in an ultimate bequest even though he may be excluded either expressly or by the terms of the grant from taking under a prior clause. Reference was made to the Succession Act and the Transfer of Property Act and though the Acts were long after the date of the grant, the Acts were referred to as affording a safe guidance. If any of the provisions of the Acts afford guidance for the interpretation of this will, I think Section III and illustration (e) of the Succession Act and Section 23 of the Transfer of Property Act are in point. Illustration (e) to Section III of the Succession Act ruts as follows:
A legacy is bequeathed to A for life and after his death to B 'and in ease of B'S death' to C. The words 'in case of B's death' are to be considered as meaning 'in case B shall die in the lifetime of A'.
108. I think the words in the present grant "or failing her" mean "if she should die before the last surviving widow".
109. Reference was made by Mr. Rajah Ayyar to Brji Lal v. Suraj Bikram Singh [1912] 34 All. 405, where a testator bequeathed property to his wife directing that after his death she should remain in possession and enjoyment of the property with all powers or authority like himself and that after her death his daughter-in-law should remain in possession and enjoyment like himself and his wife. It empowered the daughter-in-law to nominate any one whom she may think fit as "heir" so that the name of the family may continue as formerly and now with honour. Their Lordships of the Privy Council affirming the decision of the Judicial Commissioner held that the daughter-in-law took only an estate for life and observed:
In the first place there is no estate at all given to the lady in terms. The only direction is that she is to remain in possession and occupation of the property, and then she is invested with the power of appointing an heir either in her lifetime or by will, it seems to their Lordships that the word 'heir' in that clause means heir to the testator and that the judgment of the Judicial Commissioners is perfectly right.
110. It is argued that in the present grant no estate is in terms conferred on the widows, that all that is said is that the estate will be made over to the senior widow who will have the management and control of the property, and that it will be her duty to provide in a suitable manner for the participative enjoyment of the estate in question by the other widows - her co-heirs, and that no powers sire given of alienation, nor do any of the terms used in the grant denote that the widows had anything more than the right to enjoy the property for their lives as life-tenants. I do not think that the nature of the estate taken by the widows is very material as there is no question of any alienation by the widows or anything done by them which would prejudice the reversion. The property in dispute is almost identical with the property which the Receiver took possession of in 1866 and there are no claims of any alienees to be considered. The authorities which I have referred to show that where the widows took a life estate or an estate analogous to the estate of a Hindu widow, there is nothing to prevent remaindeis being fastened on to such estate and we are more concerned with the nature of the remainders than with the powers of the widows, the first donees under the grant. However, having regard to the terms of the grant and the attending circumstances pointed out by me, I think it was the intention of the Government to grant to the widows and estate corresponding as nearly as possible to the estate which a Hindu widow would take in her husband's property if she succeeded him in the ordinary way.
111. I think that the proper construction of the grant is that the widows were to enjoy an estate for their lives analogous to Hindu widow's estate with rights of survivorship, the management of the estate being in the hands of the senior widow, that the daughter was to succeed to the estate if she survived the last widow, and that if she predeceased her, the estate was to be taken by the person or persons who at the date of the death of the last surviving widow would under Hindu law be the next or nearest heirs of the Raja, he being treated as the stock of descent. I think the words "or failing her" mean "if the daughter should die before the widows" and that they do not mean failing her and her own heirs. The grant does not mean that the daughter is to be treated as a fresh stock of descent and it is clear from the succeeding words "the next heirs of the Raja will, if any, inherit," that the heirs of the daughter were not intended to come in unless they were also the next heirs of the late Raja if she died before the widows.
112. The next question is whether what is called a "sword marriage" is a valid form of marriage and whether the issue of such marriage have all the rights of legitimate issue. Connected with it is the question whether the mothers of defendants Nos. 4 and 5 and the grand-mothers of defendants Nos. 6 to 11 were the sword wives of the late Maharaja Sivaji.
113. So far as the pleadings go, none of the defendants except defendants Nos. 4 to 11 allege that sword marriage is a legal or customary form of marriage. In paragraph 10 of the fourth defendant's written statement he states as follows:
This defendant is the legitimate son of His Highness Sivaji by Saubhagya Lakshmi Bai who was brought to the Palace as a virgin when she was about 11 years old and married to His Highness in the presence of sword - a form of marriage which is customary and recognized as valid and legal in the family of His Highness and in the Mahratta community to which His Highness belonged.
114. Defendants Nos. 5 and 7 to 11 in paragraph 13 of their written statement allege:
That it was the custom of the Royal family of Tanjore to enter into sword marriages and to take as wives girls married according to that form. Such sword wives were admitted into the family as members thereof, were treated with respect and consideration by the other members including the wives married in the ordinary form.
115. It is clear that this form of marriage is not one of the forms of marriage referred to in any of the Smritis or authoritative ancient works on Hindu law or in any of the commentaries which are accepted as authorities in the various provinces of India. It is not included in one of the eight forms of marriage and it was not disputed before us that there was no reference to such a marriage in Manu, Parasara, Yajnavalkya, or in any of the Dharma Sastras which deal with the subject of marriage. So far as the eight forms of marriage referred to in the Sastras are concerned, it is now accepted law that all except the Brahma and the Asura forms are obsolete (see Mayne on Hindu law, paragraph 88, page 97.)
116. The only reference made to the sword marriage in any Sanskrit work is that contained in a work called Jyotirvida-bharanam. This is not a book dealing with Hindu law but is a work on Astrology; and though ascribed to the great poet Kalidasa, it is clearly a work of much later origin. Professor Weber in his History of Hindu Literature is of opinion that the book was written about the 16th century. The only reference to the sword marriage is that contained in a verse which has been translated as follows:
In the Kali-age a king should perform the auspicious sword marriage ceremony in the summer solstice on the day having the five auspicious parts (angas) the austeric being fit for the marriage, in the evening.
117. The next stanza gives the horoscope of the sword. The previous slokas refer to the eight kinds of marriages mentioned in the Sastras and divide them into carriages where the Panigrahana ceremony, i.e., the ceremony where the bridegroom takes hold of the hand of the bride before the sacred fire, is necessary and those where it is not necessary. Of the eight forms of marriage the author states that the Brahma, Prajapatya, Dyva and Arsha are the forms which require the Panigrahana ceremony in which the hand of the bride is held by the bridegroom. The other forms of marriage, Gandharva, Paishachi, Raksbasa, and Asura are forms where the Panigrahana ceremony is not necessary. As regards the first four forms of marriages the author states that they should be performed at the time stated by him in the previous portion of the work and as regards the latter four forms where no such ceremony is necessary, they could be performed at any time. Then comes the stanza relating to the sword marriage which I have set out above.
118. It is argued by the vakil for the first and second defendants that the sword marriage referred to in that stinza does not refer to any marriage between a man and a woman, but to a ceremony whereby the king performs a ceremony by which he becomes wedded to the sword which is the emblem of kingly power, the object being that with the help of the sword he should be victorious in the wars which he undertakes. It is also argued that the word "Dharadhibu" which really means "the Ruler of the Earth" refers only to Kshatriyas or Rajputs who belong to the warrior Glass and not to Brahmans, Vysias or Sudras. It is also argued that no work on Hindu law refers to sword marriage as a form of marriage and that it is unlikely that the Jyotirvidabharanam, which really deals with the auspicious hour for performing marriages known to Sastras would in this casual manner refer to a form of marriage unknown and not referred to in any previous works on Hindu law. It is stated that the casting of the horoscope of the sword in the next sloka would be perfectly unnecessary if the marriage was to a woman, because in such cases the horoscope of the woman would be the horoscope that would guide the union.
119. It is contended on the other side that, having regard to its position in the book and having regard to the fact that it comes in Chapter XIII which fixes the Lagna or the auspicious time for performing the marriage and also having regard to the arrangement whereby marriages are divided into two kinds, i.e., where Panigrabana is necessary and where it is not, the sloka relating to the sword marriage really refers to a form of marriage between a man and a woman, the sword playing an important part in the ceremony and not to a marriage with au inanimate object like a sword. I have read the stanza carefully and I think that the stanza refers to a customary form of marriage 'that probably arose after the Muhammadan conquest. It seems to me, (however, that the verse only refers to a 'union by a Ksbatriya. It is clear that a is word marriage is a form of union which by custom has been recognized by Rajputs and some other communities. Mr. Enthoven in his "Castes and Tribes of Bombay," Vol. Ill, page 218, deals with the custom of sword marriage among the Rajputs who are Kshatriyas. He gives a del-ailed account of the marriage and it appears from his description that, though a sword was sent to the house of the bride with certain ceremonies, the bride and bridegroom met afterwards and other ceremonies were performed. The case reported inBamasami Kamaya Naik v. Sundara-Hngasarni Kamaya Naik (1894) 17 Mad. 422, which relates to the Sattur Zamindari where the parties were Sudras also shows that it was the custom, in certain families in Southern India to perform what was known as sword or dagger marriage, the wife being known as the sword or dagger wife. It appears from the judgment that all the usual ceremonies in connection with a marriage were gone through - the dagger being placed as a symbol to show that the status of the wife was inferior. This case does not help us much. Mr. Ganapathi Ayyar in his work on Hindu law refers to a sword marriage and at page 491 observes;
Among the Kshatriya castes there is a form of marriage known as the sword, or dagger marriage (kadga vivaha) and this prevails even now among some zamindar families. In the Jyotirvidabha-ranam which is supposed to be the work of Kalidasa, it is said that in the Kaliyuga even a. marriage without Panigrahanam is good as in the case of kings who celebrate marriages in the sword or dagger form (kadga vivaha).
120. The issues Trained in the suit base the claim on custom and although defendants Nos. 4 to 11 state that it was a custom in the Royal family to which Raja Sivaji belonged and among the Mahrattns generally to have sword wives, there is no evidence that in the royal families of Kolhapur or Satara which equally with the Royal family of Tanjore descended from the Great Sivaji, there was any instance of a marriage known as sword marriage having ever been contracted by any of the members of the Royal family. There is no reference to any custom of sword marriage amongst the Mahrattas in the Dekhan or the Bombay Presidency in the Kolhapur, Satara or other Gazetteers published under the authority of the Government. As I said before, the only reference I can find is in Enthoven's "Castes and Tribes" and it refers to the custom amongst the Rajputs. Only one witness Vittal Rao Sahib Mobitai, the eighty-seventh witness for defendants Nos. 4 to 11, speaks to a sword marriage having been contracted by a relation of his in Bhor in the Satara district and describes the ceremonies the parties went through. Mahadeva Rao Nimbalkar, the eighty-third witness of defendants Nos. 4 to II, speaks to his maternal grandfather having performed a sword marriage but states he can give no details of that ceremony. This evidence is totally insufficient to prove any general custom amongst the Mahrattas generally.
121. The question therefore resolves itself into whether any special customs existed in the royal family of Tanjore and, if so, what were the rights of the issue. So far as the Tanjore Royal family is concerned, there is the evidence of Dharmavalli Bai Amma whose deposition has been marked as Exhibit D-236. She states that she was the brother-in-law's daughter of Sivaji Maharaja, that she was married according to the sword form of marriage, that the marriage was over in a day, that a sword was placed and homam performed, that she went round the homam when the priest chanted the mantrams, that after she did that, she prostrated before the Raja who tied a tirumangaliam or tali round her nock, that there was a dinner afterwards and that the Raja's adoptive mother Avu Bai Saheba performed a ceremony known as sunmuk, i.e., a ceremony where the mother-in-law for the first time after the marriage looks at the face of the daughter-in-law. It is unfortunate that this witness who would have been an important witness for defendants Nos. 4 to 11 was not examined earlier. She was ill when she was exainined-in-chief, and her examination was adjourned after a few sentences in cross-examination were recorded. She died before cross-examination could be resumed. There was considerable argument as to the admissibility of her evidence which it was not possible to test by cross-examination. I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can have little value. I need only refer to Taylor on Evidence, Section 1469 : Davies v. Otty (1865) 35 Beav. 208, Elias v. Griffith (1877) 46 L.J. Ch. 806, Man Gobinda Chowdhuri v. Shahindia Chandra Chowdhuri (1908) 35 Cal. 28, and Dhanu Ram Mahto v. Murli Mahto (1909) 36 Cal. 566. There is nothing in the Evidence Act which renders such evidence inadmissible. In Rosi v. Pillamma (1910) 20 M.L.J. 400 it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should not be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded. I am not disposed to attach any weight to the evidence of this witness.
122. [After discussing evidence, His Lordship held that in the Tanjore Raja's family there wore unions by which women were admitted to the seraglio and were known as sword wives.]
123. The first recorded instance of a sword marriage is that between Tukkoji, son of Venkoji, the founder of the Tanjore Dynasty, and Annapurni Bai; and Pratapa Singh who reigned from 1740 to 1763 was the issue of such a union. The next instance is that of Amar Singh, son of Pratapa Singh. The third instance is that of Pratapa Singh (son of Amar Singh) and his wife Radha Bai, and it was this marriage that was in question in the suit which I have already referred to and the judgment in which is filed as Exhibit Rule 100. The rent instance is that of Serfoji who had a number of sword wives and who founded an institution called Kalyana Mahal for them and the last instance is that of his son Sivaji the last Raja of Tanjore who had 40 sword wives and who founded an institution known as Mangala Vilas for them.
124. It is significant that none of the records show that the children by sword wives were as regards property or succession treated as legitimate issue entitled to the same rights and privileges as the children by wives married according to orthodox form.
125. [His Lordship held that Pratapa Singh, the son of Tukkoji by his sword wife Annapurni Bai had been treated as illegitimate not only in early documents and by all historical writers but also by his grandson Serfoji Raja in the inscription Exh. B-140. Then after referring to other evidence, His Lordship proceeded:]
126. There is in Exhibits B-140 and B-141 a clear indication that the women with whom the ceremony of sword marriage was gone through were looked upon as no better than permanently kept concubines.
127. Turning to Mahratta History, Orme in his history, Vol. I, page 108, refers to Pratapa Singh as a person born of an inferior wife of his father Serfoji and states that he was placed on the throne by the general concurrence of the principal men in the kingdom which had suffered much from the weak administration of Shahuji. The early writers seem to have treated a permanent conoubine as a kind of inferior wife. In Strange's Manual of Hindu Law, Vol. II, published in 1825 he states that kept women are regarded as inferior wives I may also refer to the decision reported in Datti Parisi Nayudu v. Datti Bangaru Nayudu (1869) 4 M.H.C. 204. where it is said that a permanently kept conoubine ranks as if she were a secondary wife. Grant Duff in his History of the Mahrattas (a book which has been exhibited as B-177) at page 462 of Vol. I, states that Pratapa Singh is the son of a concubine. Mill in his history of India which has been filed as Exhibit G-212 at page 62 of Vol. III, refers to Pratapa Singh being the son of one of the inferior wives of Tukkoji, but Mr. Et. H. Wilson's note states that Pratapa Singh was the son of a concubine. In Aitchison's Treaties, Vol. X, which has been marked as Exhibit B-172, reference is made to Pratapa Singh as being of illegitimate birth. Justice Ranade in his History of the rise of the Mahratha Power refers to Pratapa Singh as an illegitimate son of Tukkoji and states that the Mabratta officers in the service of Tanjore finally succeeded in raising him to the throne. In the Tanjore District Manual published under the orders of the Government which has been marked as Exhibit B-173 Pratapa Singh is said to be the illegitimate son of Tukkoji. In the genealogical table given at page 764 of the Manual Tukkoji is said to have had three illegitimate children, Anna Saheb who died before his father issueless, Nana Saheb who died before his father leaving an infant son and at pages 775 and 777 reference is made to Pratapa Singh as the illegitimate son of Tukkoji. So far therefore as Pratapa Singh is concerned, though his father and mother were united according to a form known as sword marriage the union was not regarded as one which conferred on him the status of a legitimate son.
128. Much stress has been laid on the fact that Pratapa Singh did succeed to the throne and that his illegitimacy was no bar to succession. The succession of an illegitimate son, if he is a capable person, and there were no legitimate issue of proper ago or any ability, was an event not unknown in those troubled times. For example, there were cases of illegitimate sons succeeding where the legitimate is sues were weak or incompetent. Mihadaji Scindia, though an illegitimate son, sueif ceeded Junkoji and Jeswant Rao Holkar, though illegitimate, was ruler for several years. (Duff's History of the Maharattas and Sir John Maoolm's Central India.) It is also significant that, although Pratapa Singh was a major, he did not succeed at once. On the death of his brother Bava Saheb his widow Siyari Bai was placed on h the throne and it was only because there was no competent person to govern the e State that Pratapa Singh was installed by if the people. According to Exhibit B-141 he was raised to the throne by the army and the chief men in the State. The following e passage at page 777 of the Tanjore District manual which has been filed as Exhibit B-173 is instructive:
That Pratapa Singh was illegitimate is nowhere denied and that Saiyaji was a legitimate son, may, it seems be fairly assumed upon the authority of Duff. Mill, upon the authority apparently of the History and Management of the East India Company from an authentic M.S. account of Tanjore' ascribes all the revolutions between the death of Bava Saheb and the elevation of Pratapa Singh, as well as the latter event, to the Mahomedan commander Siiyid, and considers Orme, who gives a different version, to be in some particulars misinformed; but Orme's version that Saiyaji was deposed and Pratapa Singh was placed on the throne by the general concurrence of the principal men in the kingdom' is apparently accepted by the Tanjore Commission (their report 1799, Appendix) and seems more probable.
129. [His Lordship referred to the next three instances and held that they were not proof that a sword marriage confers legitimacy on the issue. With regard to the Mangala Vilas ladies, His Lordship held that the late Raja went through the form of a so called sword marriage with the mothers and grandmothers of defendants Nos. 4 to 11. His Lordship held that these ladies were permanently attached to the Raja's seraglio and were not mere dancing girls but that the sword marriage was not understood as conferring the status of legitimacy and that the nature of the treatment accorded to the Mangala Vilas ladies and children and the ceremonies performed by them were not sufficient to establish the contrary. His Lordship then proceeded:]
130. In estimating the evidence of treatment, it is necessary to bear in mind that the Mangala Vilas ladies were introduced into the seraglio, when they were young and were cut off frofti the rest of the world and were permanently annexed to the Raja's seraglio. The paternity of the Mangala Vilas children was never doubted by anybody and there can be little doubt that the Raja having no male issue of his own treated these children with considerable affection. The position in the Hindu households of permanently kept concubines is very analogous to the married wife who often resides in the same building.
131. In Yashvantrav v. Kashibai (1888) 12 Bom. 26, Nanabhai Haridas, J., observes:
The position of a deceased co-parcener's permanent concubine in his family is in some respects analogous though necessarily inferior to that of his widow not inheriting. They are both dependent members of the family and, as such, entitled to maintenance, as above stated. (1 Str. 171,174; 1 Norton 48, 51.) During the co-parcener's lifetime, if not even after his death, his concubine is by the Hindu Criminal Law regarded as his wife, for it ordains punishment as for adultery for any sexual intercourse with her by another as if she were his wife, and the ceremonial law also regards her in that light, for it declares the same length of impurity for her when he dies as for the death of a real husband.
132. The learned Judge evidently refers to verse 290 in the Vyavaharadhyaya of Yajnavalkya which is translated by Mandlik as follows:
A man (having intercourse) with an Avarudha (protected female slave) and Bhujishya (another's mistress) shall be required to pay a fine of fifty panas, even though intercourse with them be (in other respects) permissible.
133. The position of the Mangala Vilas was similar to that of an Avarudha Stree defined in Mitakshara as a woman who is prohibited by her master from intercourse with other men with an injunction to stay at home with the object of avoiding any lapse of service. In Briiidavcina v. Badhamani (1889) 12 Mad. 72 the question was whether a person who was living with a zamindar for a number of years was his wife or only a permanently kept concubine. The learned Judges Sir Arthur Collins, C.J., and Muttuswami Ayyar, J., observe:
The first of those questions is whether, as alleged by the respondents, Padmamala was the lawful wife of Padmanabha Deo by gandharva marriage. The Judge has recorded no finding in regard to it, but treated the matter as one of little moment. We observe, however, there is no satisfac tory evidence in support of the contention. None of the respondents witnesses deposed to the factum of a gandharva marriage between Padmamala and Padmanabha Deo, and there is no direct evidence at all on the point. It was no doubt in evidence that Padmamala was addressed as Maha Devi, that,she wore gold jewels on her legs, that she performed a ceremony called Bandapon which married women alone ordinarily perform and that she was the brother's daughter of Nila Patta Maha Devi, the senior wife of Padmanabha, admittedly a lady of the Kshatriya caste. But these circumstances are not in themselves conclusive on the question of lawful marriage, a ad although Padmamala was. the niece of the senior wife and taken by Padmanabha under his protection on her recommendation, yet it is by no means unlikely that her status was not higher than that of a concubine if she was only an illegitimate relation.
134. [His Lordship referred to the facts that talis were tied to the sword wives and that some of them observed sattee and proceeded:]
135. There is nothing in the ceremonial law or Shastras prohibiting permanently kept women in Hindu households from performing the various vrathams or ceremonies which married women perform; and as pointed out in the Brindavana v. Badha mani (1889) 12 Mad. 72 the performance of such ceremonies does not necessarily show that the women must have been married.
136. Some stress was laid on the fact that the women were called sword wives. I do not think the mere designation of sword wife raises any necessary implication of marriage.
137. [After discussing more evidence, His Lordship continued:]
138. One test of the legitimacy is the capacity to perform funeral ceremonies and sradhs. As observed by Sarvadhikari in his "Principles of the Hindu Law of Inheritance" (page 101), the importance of the Sradha ceremonies from a legal point of view cannot be over-rated. The competence of a person to offer these oblations forms the test of his title to the inheritance. It is admitted in this case that none of the Mangala Vilas sons performed the funeral ceremonies of the late Raja though on the date of his death he left no son by his married wives and bad made no adoption and that none of them performed the sradhs of any of the Bai Sahebas who died before the date of the adoption of Raiaram Ingle in 1863, Nobody thought of them in that connexion as being competent.
139. It also appears that both Serfoji and Sivaji not only established the women in two separate houses but also made provision for them by purchasing lands for the maintenance of the inmates of those two institutions. If the Kalyana Mahal and the Mangala Vilas ladies were the legally married wives of the Raja, there would have been no necessity for any such differentiation to make separate provision.
140. Authorities were cited to show that presumption of marriage ought to be raised when two people live together for several years as husband and wife and reference was made to Sastry Velaider Aronegary v. Sembucutty Vaigalie (1881) 6 A.C. 364 in support of the view that the mere fact that concubinage exists should be no ground for not applying the presumption of marriage from long cohabitation. I may stats that, though where nothing more is known than that persons have been living together as husband and wife and treated as such by the community for a long series of years, presumption of marriage may, if nothing I more appears, be drawn, the presumption will be considerably weakened and it will be altogether rebutted where facts are shown which make it more consistent with continued concubinage than with legal marriage. I may in this connexion refer to Ma Wun Di v. Ma Kin (1908) 35 Cal. 232, where the question was whether there was a valid marriage. Lord Robertson in delivering judgment of their Lordships of the Privy Council observes:
The case however, deserves attention, for there has been a strong appeal made to the general presumption of marriage arising from cohabitation with habit and repute. It is necessary, before applying this presumption, to make sure that we have got the conditions necessary for its existence. It is not superfluous to suggest that, first of all, there must be some body of neighbours, many or few, or some sort of public, large or small, before repute can arise. Again the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage. The differences between English and Oriental customs about the relations of the sexes make such caution especially necessary. Among most English people, open cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets "up, as a matter of fact, a repute of marriage. But in countries where customs are different, it is necessary to be more discriminating, more especially owing to the laxity with which the word 'wife' is used by witnesses in regard to connexions not reprobated by opinion, but not constituting marriage.
141. Treating the question merely from the point of view of presumption to be raised from persons living together, I think there is ample material on record to rebut the presumption. I have already referred to the various circumstances which in my view show that the Mangala Vilas ladies were treated as permanently kept concubines of the Raja and the Mangala "Vilas children were considered by the Government, the other members of the Royal family and by themselves until almost before the present suit, as illegitimate. Though there can be little doubt that their mothers were brought into the seraglio as unmarried girls and were continuously kept by the Raja in the Mangala Vilas Sadma without any access to the outside world and that defendants Nos. 4 and 5 and the fathers of defendants Nos. 6 to 11 are the sons of the Raja, I think their position is only that of illegitimate children. I agree with the Subordinate Judge that the parties are Sudras and the result of my finding that defendants Nos. 4 to 11 are illegitimate is that they will only be entitled to the shares which illegitimate children of a Sudra would get.
142. The next question is as to the caste of the parties. The case for defendants Nos. 4 to 11 is that the Tanjore Royal family are Sudras by caste, while the case for the other defendants is that they are Kshatriyas. The Subordinate Judge finds on the evidence that the Tanjore Rajas were Sudras by caste. He has dealt with the evidence with great care and minuteness in paragraphs 1292 to 1599 of his judgment and I see no grounds to differ from him.
143. It was conceded before the Subordinate Judge (see paragraph 1556 of the judgment) and also before us that caste is the result of birth and not of choice or volition, though a person may lose caste he cannot by any act of his rise to a higher caste.
144. Manu, Yagnavalkya and the other Smxiti writers expressly state that there are only four castes, namely, Brahmana, Kshatriya, Vaisya and Sudra. The first three are called Dvijas or twice-born (from dvi, two, and jayate, is born, the second birth being on the performance of the upanayana or the investing of sacred thread) and all the religions rites enjoined for them are performed with Vedic mantras. Manu says the three twice-born classes are the Brahma, Kshatriya and Vaisya but the fourth or servile (Sudra) is once born, that is, has no second birth from the Gayatri and wears no thread. Nor is there any fifth class-Chapter X, verse 4.
145. Yagnavalkya in verse 10 of the Acharadhyaya says:
The castes are the Brahmanas, the Kshatriyas, the Vaisyas and the Sudras. Only the first three of these are twice-born, the performance of the ceremonies beginning with the rite of impregnation and ending with the funeral rites in the cremation ground of these only is prescribed with the sacred formulas.
146. In Balambhatta's Gloss on the Sloka, the commentator says:
The word Dvija (twice-born) is a technical term retaining also its etymological meaning, namely, they are twice-born or re-generate for the investiture with the sacred thread is the second birth. All ceremonies of the higher castes are performed by reciting the sacred formulas, those of the Sudras are performed in silence and without such recitation.
147. It is clear that so far as the Sudra is concerned there is no Upanayana or investiture with the sacred thread and in the fact the non-investiture is the main ground of differentiation between the three higher castes and the Sudras.
148. The ceremony whereby the Brahmana, Kshatriya and Vaisya become initiated into the Gayatri or the sacred mantra and becomo twice-born is called Upanayana, which literally means bringing near, i.e., student near the teacher who instructs him in the sacred Gayatri verse and makes him Jit to receive instructions in the Vedas. According to Manu, Chapter II, verse 38, the maximum age for the performance of the Upanayana or the investiture of sacred thread is the sixteenth year for the Bahmanas, 22nd for the Kshatriyas and 24th for the Vauyas and in verse 39 Manu states that all the youths of these three classes who have not been invested with the sacred thread at the proper time become "Vratyas or outcastes, degraded from the Gayatri, and condemned by the virtuous" and he prohibits a Brahman even when he is in distress for subsistence from having any connexion with such a Vratya or impure man Yagnavalkya in verse 39 of the Acharadhyaya also gives the same age and in verse 38 states that after the age is passed the youths of the three classes, namely, the Brahmanas, Kshatriyas and Vaisyas, for whom no Upanayana has been performed, fall out-castes from religion, degraded from the Gayatri, and become Vratyas, unless the ceremony which is called Vratyastoma is performed.
149. In the Grihya Sutra of Asvalayana he describes Vratyas as being impure and unfit for Upanayana, for receiving the Vedas, and for intercourse as to food, worship, etc. But he nowhere expressly provides expiation for them (see Mandlik, page 165).
150. All the text-writers and commentators age agreed that in the case of Sudra there is not only no Upanayana or the investiture of sacred thread which is the exclusive privilege of the three higher classes but there is also no recitation of the Vedic mantras in respect of any rites which they are enjoined to perform by the Shastras.
151. As observed by the Subordinate Judge in paragraph 1326 of the judgmant three distinct cases appear to have been set up during the trial of this suit. The first is that all Mahrattas are Kshatriyas; the second is that Saunavagulis or the 96 families among the Mahrattas are Kshatriyas; and the third is that Sivaji and the relations of the Royal family known as Vajratmas are Kshatriyas.
152. As regards the first point, reference was made to the Histories of the Daccan to show that the Mahrattas were really the descendants of the Rajput clans who, owing to the Muhammadan conquest of Northern India were thrown back on the Decean. Reference was male to Elphinstone's History of India, Vincent Smith's Ancient History, Duff's History of the Mahrattas and Bandharker. But it is difficult to establish any definite historical connection between the Mahrattas who sprung into fame during the period of the father of Sivaji the Great and the Rajput clans who were in Northern. India during the period of the first Muhammalm in vasion and during the time of Ala-ud-din Khilji's invasion of the Deccan.
153. The origin of the term' Mahratta has been the subject of speculation and various derivations - some of them entirely fanciful - have been given to the word. On the one side, we have the view that the word Maharashtra is derived from Maha, great and Ritha, Chariot-warrior or from the Bishtrakutas; and on the other, that word means the country of the Mahars, a low caste tribe (see Russel on Castes and Tribes, Vol. 4, page 199).
154. It has been argued that the Mahrattas are descendants of the Rashtrakutas. Mr. Vincent Smith is of opinion that they were indigenous tribes of the Deccan and not Rajputs. We learn from history that on the fell of the Andhra Kings 200 A.D. the Rashtrakutas became the rulers of the Deccan and that about the sixth century A. D. they were in turn overthrown by the Chalukyas whose greatest ruler was one Pulakesi II - the rival of Harsha of Kanouj about 750 A.D. Mr. Vincent Smith is of opinion that the Chalukyas though provided by obsequious Brahmans with a first class Hindu pedigree going back to the hero Rama of Ayodha really were of foreign origin and belonged to the Huna-Gurjara group of invading tribes (page 200 of Oxford History of India). The Chalukyas were overthrown by a new Rashtrakuta dynasty; about 900 A.D. the western Chalukyas again came into power and continued in power till the twelfth century. In the closing years of the twelfth century, the Yadavas of Devagiri extended their power, but in 1294 the Afghans under Ala-ud-din Khilji conquered the last of the Yadavas and razed his capital Devagiri to the ground and thereafter the Deccan came under the rule of the Emperors of Delhi. It is suggested that the Mahratta clan of Jadavs are descended from the Yadavas. but beyond similarity of name there is nothing to support this theory. There was a class of shepherds called the Yadavas, and there is as much, if not greater, probability in the Jadavs being descended from them. It is also worthy of note that no surname corresponding to Jadav has been pointed out among the ancient Rajput families. lb is stated in the Satara Gazetteer that "as far as is known the Devagiri Yadavas passed from the south northwards, and it is possible they were not northerners but southerners, Kurubars or other shepherds, who, under Brahman influence, adopted the great northern shepherd name of Yadav".
155. The Bhamani Kingdom which continued from 1347 to 1526 was founded by Hussain Ganga as a result of revolt against the Delhi Emperor. After 1526 the kingdom broke up into five Muhammadan principalities, of which Bijapur and Ahmednugger formed the principal ones. The kingdom of Ahmednugger was ultimately conquered by the Mughal Emperors of Delhi. In 1600 the capital was conquered by the Mughal Emperor and thereafter the kingdom fell on evil days. In this troubled period Maloji, the grandfather of Sivaji the Great, entered the service of Murtuza Nizam Shah the King of Ahmednugger, and the rise of the Mahrattas as a nation is said to commence from the time of Maloji, father of Sahaji, the father of Sivaji the Great, though it was the genius of Sivaji that organized the Mahrattas into a nation. It is difficult to connect the Mahrattas whom Sivaji welded into a nation with the Rashtrakutas in the Deccan who reigned in that part of India and were overthrown, as we do not hear of the Rashtrakutas from A. D. 973 when they were overthrown to 1600 when the rise of the Mahratta power in the Deccan began. Nor is there any definite historical connexion between the Rashtrakutas and the Rathor tribes of Rajputs and Vincent Smith is of opinion that the Bashtrakutas have nothing to do with the Rajput tribes. Elphinstone states that the Mahrattas were more of the lower orders of Hindustan than the southern neighbours in Kanara and contrasts them with the Rajputs in character and physique. Speaking of the Mahratta Chiefs at a time when the Mahrattas rose into power, Elphinstone observes:
The Chiefs in those days were men of families who had for generations filled the old Hindu offices of Heads of villages or functionaries of districts and had often been employed as partisans under the Government of Ahmednugger and Bijapur. They were all Sudras of the same caste with their people, though some tried to raise their consequence by claiming an infusion of Rajput blood.
156. Later on speaking of Maloji he says:
If any Mahratta had claimed a Rajpout descent, it was the family of Jadu. The name is that of one of Rajput tribes, it was borne at the first Muhammadan invasion by the Ruler of Devagiri, the greatest Prince of the Decean, and it is not improbable that the protector of Maloji (who was the Deshmukh of a district not far from Devagiri) may have been descended from that stock. Whatever was his origin, Lukji Jadu Rao had attained to a command of 10,000 men under Malik Amber and was a person of such consequence, that his desertion to Shah Jahan turned the fate of a war against his former master.
157. I do not think that a reference to the History of the Decean supports his view that all Mahrattas are Kshatriyas or that there is any strong probability that the Mahrattas are descendants of Rajput clans.
158. The result of the recent researches has been embodied by Mr. Enthoven of the Bombay Civil Service in his work "Tribes and Castes of Bombay" and by Sir Herbert Risley, Director of Ethnography for India, in his work "The people of India." Mr. Enthoven in Vol. Ill of his book observes at page 8 as follows:
The word Maratha covers three classes that were probably one in origin but are now distinct. These are-
(1) Marathas proper, the Chiefs, landowners, and fighting Marathas of the Deccan and Konkan, claiming Kshatriya rank, eschewing widow-remarriage and socially superior to the cultivating classes, from whom, however in places, they will take girls in marriage.
(2) Maratha Kunbis or cultivators also known as Kulvadi.
(3) Maratha occupational castes of the following : Bhandari, Lohar, Mali, Teli...
159. These would be classed as Marathas when found in other parts of India, and have certain features of special significance in common with the first two groups.
160. It has already been noted that Marathas proper claim to be Kshatriyas, the second of the fourfold divisions of Manu. As proofs in support of this claim they state that they belong to the four ancient Kshatriya royal vamsbas or branches, viz., Suryavamsha, Somavamsa, Bhahmavamsa and Seshavamsha, that they have the ninety-six mythological Kshatriya families, or kuls, that many of their kul or family names are common clan names of Rajputs (who are supposed to be the modern representatives of the ancient KsVatriya race), that there is historical evidence to show that marriage connexions were formed between royal Rajput houses and the rulingMaratha families, that like the Rajputs they observe purdah, wear the sacred thread and prohibit widow re-marriage, that they have bards or Bhats like Rajputs, and that as among Rajputs, the Nhavi or barber performs the function of serving water at their feasts, although he is considered comparatively unclean by the surrounding population in the Decean. But against the above it can be said that when a caste or a portion of a caste rises in the social scale on account of worldly prosperity, it adopts a mythological pedigree like the four vamsbas from which the Marathas claim descent, that as shown later on, there is a great difference of opinion as to the names of the ninety-six kuls claimed by the Marathas (in fact the number far exceeds ninety-six), that the Rajputs have formed marriage connexions even with Koli and Bhil chiefs who have not the Jeast pretensions to Kshatriya blood, and that it is the universal practice among the lower castes, when they wish to rise in the social scale to imitate the higher by prohibiting widow marriage, wearing the Sacred thread, and adopting other similar customs. Admitting the similarity of clan names; this is by no means necessarily a proof of similarity of descent. The purdah system, the employment of family genealogists or Bhats, etc., can very easily be adopted by a caste ambitious to be classed as Kshatriyas and imitating with that view Rajput manners and customs.
161. The common belief in Maharashtra regarding the origin of Marathas is that there is little or no difference, so far as caste is concerned, betwoen Marathas and Kunbis. Some indeed, among whom are Marathas themselves, are of opinion that the two classes are one and the same. The line of demarcation between the two communities is not a hard and fast one, as intermarriages between Well-to-do Kunbi families and the ' lower sections of Marathas are not infrequent. Such intermarriages usually take the form of a Maratha boy being married to a Kunbi or Kulvadi girl. Such marriages are common in remote parts of the Presidency. On the other hand, Maratha girls would not be given in marriage to Kunbi boys. Thus the Marathas proper assert their social supremacy, and though akin to Kunbis, they must be considered distinct. Kunbis prefer the designation Maratha to that of Kunbi, as more honourable. The Kunbis, however, do not lay any pretensions to Kshatriya origin. They are as a rule connected with field work, while the Marathas, though they may be mere cultivators, more often follow other avocations and regard cultivation as a secondary profession on which they may fall back if they are unsuccessful in other lines. Hence it appears that Kunbis and Marathas are differentiated rather by wealth and social status than by any hard and fast caste distinction. Socially the Maratha is the superior of the Kunbi, and this is evidenced by the facts that while Kunbi widows remarry, Maratha widows do not, that while Maratha ladies of recognized rank observe purdah, Kunbi women do not observe it, and that while Maratha ladies insist on gold in preference to silver ornaments, Kunbi women are content with any that they can get.
162. It is not possible in these pages to deal finally with the controversy that exists regarding the origin of Marathas proper and their relation to the other Maratha divisions in the Presidency. But in the course of the survey some important evidence has been collected dealing with the social structure of Marathas of all three classes, and indicating reasons for assuming that they had a common origin." The author then goes on to refer to Devaks and Balis and gives a list of Devaka found among Marathas proper and Maratha Kunbis with other castes.
Ajsal Marathas claim to belong to four main branches or vamshas each containing twenty-four kuls or families. They are-
(1) Brahmavamsha or the Brahma branch.
(2) Sheshavamsha or the Serpent branch.
(3) Somavamsha or the Moon branch.
(4) Suryavamsha or the Sun branch.
This classification has evidently been adopted from the mythological divisions of to Kshatriya race in support of their claim to Kshatriya origin. But it has not been found possible to assign definitely to each branch the twenty-four families attributed to it, neither are the names of ninety-six families or kuls the same in all places. In fact, if all the names of the ninety-six kuls are compiledin one list, the total far exceeds ninety-six and many of the names disclose identity with the Kunbis, whom the aristocratic Marathas consider to be distinct from them.
163. He then gives a list of the Kuls, and points out that the list of kuls given by one author does not agree with that given by another and concludes as follows:
The above remarks are made by way of showing that the claim of the Marathas to belong to the ancient ninety-six families of the Kshatriya race has no foundation in fact, but must have been advanced after they rose to power.... But similarity of surnames by no means implies similarity of race...as surnames such as Chavans, Cholkes, Mores, Pavars, Shelars and Yadavs among Kolis, are adopted by Kolis, Dhangars, Mahars, Malis Ramoshis, Mongs and several wandering tribes.
164. There are cases where even Brahmans have assumed the surnames of their Maratha patrons, e.g., the Ghorpades of Inchhalkaranji, the Dhamdheres of Poona, etc.
165. The majority of the castes do not know to which gotra they belong, their guides in this respect being the caste priests and printed books. And even among these authorities there is great confusion in the matter of assignment of kuls to gotras. Thus, according to one account, the Mores belong to the Gautam gotra, while another account assigns them to the Bharadwaja gotra. Sameness of gotra is not necessarily a bar to intermarriage, the chief restrictions in this respect still being sameness of kul and Devak. This would seem to suggest that the gotras, like the four vamshas and kuls, were adopted by the tribe after they rose in social dignity."
166. Sir Herbert Risley at page 87 of his book observes as follows:
If the Marathas can be described as a caste, their history and tradition certainly stamp them as a caste of the national type.... According to Mr. Enthoven (Census report of Bombay, 1901, Vol. I, p. 183 et seq.), the Bombay Marathas may be classified as a tribe with two divisions, Maratha and Maratha Kunbi, of which the former are hypergatnous to the latter, but were not originally distinct. It remains to be explained that the Kunbis also consist of two divisions, Desh Kunbis.... and Konkani Kunbis.... Intermarriage between these divisions is not usual. The barrier, however, seems to be purely geographical. It may not withstand the altered conditions due to improvements in communications, and it is not apparently based on any religious prohibition of intermarriages.... The highest class of Marathas is supposed to consist of ninety-six families who profess to be of Rajput descent and to represent the Kshatriyas of the traditional system. They wear the sacred thread, marry their daughters before puberty and forbid widows to marry again. But their claim to kinship with the Rajput is effectually refuted by the anthropometic data now published, and by the survival among them of Kuldevaks or totems such as the sun-flower, the Kadamba tree (Nauclea Kadamba), the mango, the conch-shell, the peacock's feather, and turmeric, which are worshipped at marriages and at the ceremony of dedicating a new house, while their close connection with the Kunbis is attested by the fact that they take Kunbi girls as wives, though they do not give their own daughters to Kunbi men. A wealthy Kunbi, however, occasionally gains promotion to and marries into the higher grade and claims brevet rank as a Kshatriya. The fact seems to be that the ninety-six superior families represent Kunbis who came to the front during the decline of the Mughal Empire, won for themselves princedoms or estates, claimed the rank of landed gentry, and asserted their dignity by refusing their daughters to their less distinguished brethren.
167. It was admitted in argument that the Kunbis who are a cultivating tribe are Sudras; and it is also admitted that the Kunbis have got the same division into 96 families. There is therefore not much force in the contention that the adoption of surnames as Bhonsle, Nimbalkar, Jadhav, etc., raises any presumption of Kshatriya origin, even assuming for argument's sake that some of the Mahratta families with those surnames were of Rajput descent.
168. The contention that all Mahrattas are Kshatriyas and that consequently Sivaji and his descendants must be assumed to be Kshatriyas is, in my opinion, devoid of all historical foundation.
169. I shall now deal with the argument that even if all Mahrattas are not Kshatriyas, the Sannavagulis or the members of the 96 clans are Kshatriyas and that the Rajas of Tanjore who belong to the Bhonsle family which is one of the 96 families must necessarily be of Kshatriya descent. The term "Sannavagulis" means 96 Kuls or families. In Exhibit B-140 which is an inscription of the year 1803 it is stated that from the Solar and Lunar races rose up a Kshatriya family which consists of 96 branches. Then the 96 branches are named, the first being the Bhonsle family from which Sivaji is said to have descended. I have already pointed out that the Kunbis Who form the agricultural portion of the Mahratta community are Sudras and that they also have the same divisions into 96 clans. This is clear from the extract from Mr. Enthoven's book which. I have already set out in extenso and from a reference to the Satara and Kolhapur District Manuals. It is stated at page 76 of the Satara District Manual that almost all the leading tribal surnames such as Cholke, More, Povar, Shelar and Yadav are found, besides among Kunbis who do not appreciably differ from Mahrattas. A large body of evidence in this case is to the effect that the Sunnavagulis in Tanjore far from being Kshatriyas are Sudras. Vagoji Rao, sixteenth witness for defendants Nos. 1 and 2, who is the brother-in-law of the late Maharaja Sivaji states that there are no intermarriages between the Sahebs of the Royal family and Sannavagulis. He classes the Sannavagulis along with Appa, Akka and other divisions who are admittedly Sudras. As regards funeral ceremonies, he states that the ordinary Mahrattas make the pindam or offerings to ancestors of flour while the higher classes make it of cooked rice. Thirty-first witness for defendants Nos. 1 and 2 Savalairam Sahet Soorve who is also related to the Royal family states that all Mahrattas are not Kshatriyas, that the word "Mahratta" k a general name including Kshatriyas and some minor castes and that the latter are SannavaguliB, Satyavagulis and Mangala. vilasam. The twenty-first defendant who is the great-grandson of the sister of Sivaj and who was examined as forty-sixth wit ness for defendants Nos. 1 and 2, states:
The Mahrattas who were cart-drivers were not of my caste. They are said to h Sannavaguli Mahrattas. We are no Sannavaguli Mahrattas, They are no Kshatriyas or Sudras. I do not know if they are Vaisyas or Sudras. I do not know their caste. They wear Poonool (sacred thread).
170. He expressly disclaims the suggestion that he is a Sannavaguli. Manoba Saheb, twenty-sixth witness for defendants Nos-1 and 2, who is also related to the Royal family, states:
There is a class called Sannavagulis. They are Mahrattas. I do not know if they are Dvijas (twiceborn). We do not intermarry.
171. The Subordinate Judge deals with this part of the case at pages 474 to 479 of his judgment, and I think the evidence is totally insufficient to prove that because the Tanjore Rajas claim to belong to one of the 96 families, they must necessarily be of Kshatriya descent.
172. All the available authorities show that Babaji, the great-grandfather of Sivaji, was a patel or village headman of a village in Poona District. It is not shown, nor was it suggested before us, that Babaji was anything more than a cultivator and village headman. His two sons, Maloji andVittoji, not satisfied with village life and being ambitious, enlisted themselves in the service of Lukhji Jadhav who held military service in the Ahmednugger kingdom, and entered his service on the modest salary of five hons (pagodas) each. Takakhav, in his "Life of Sivaji Maharaj" which has been referred to during the course of the argument, states that Maloji had two sons Shahaji and Serfoji, and Shahaji who was the father of Sivaji was a handsome and intelligent youth and was ultimately married to the daughter of Jadhavrao. An account is given as to how the statement made by Jadhav in jest that Shahaji and his (Jadhav's) daughter who were then little children would make a handsome couple was seized upon as a promise. Waring in his "History of the Mahrattas," states that that objection was taken by Jadhav's wife who upbraided him with the folly of harbouring even a thought of giving his daughter to a wretched Cunbi, the son of a common horseman, and that Maloji and Vittoji thereupon were discharged from the service and were again under the necessity of restoring to their former occupation of husbandry. Takakhav also states that, owing to Maloji treating the jest of Jadhav seriously, he and his brother were discharged from service and "were forced to return to their paternal homestead at Verul, again to become farm hinds and till the land." Maloji subsequently became wealthy. The Mahratta Chronicle credits this to a divine interposition and to the finding of a secret treasure disclosed in dream by the Goddess Bhavani, while Duff and other historians attribute it to the more probable and prosaic result of Maloji having taken to plunder on his own account and having amassed a fortune. However this be, Maloji got rich and prospered and ultimately his son was given in marriage to Lukhji Jadhav's daughter. The Mahratta Chronicle states that Maloji, after he became rich, enlisted horsemen and infantry and began to give trouble to the Bijapur Sultan, that he defiled a mosque and that the Sultan, to put a stop to this, compelled Jadhav to give his daughter in marriage to Maloji's son Shahaji - see page 280 of Justice Ranade's "Rise of the Maratha Power." Pressure brought to bear by the Sultan and not the recognition by Jadhav of Maloji's high Caste was thus the reason for the alliance which wasonce rejected with scorn being subsequently entered into. Shahaji, both with the aid of the connexion so formed and by his own powers and genius, rose to considerable eminence in the Courts of Ahmednugger and Bijapur, and Sivaji the Great extended Shahaji's conquests and founded the M thratta Empire. The humble occupation of Sivaji's grandfather and his ancestors who were village headmen and cultivators of the soil probabilizes the view that they were really of Kunbi origin. Coming to Sivaji the Great, we find that the first time that any Kshatriya origin was claimed for him or any reference was made to his kinship to the Rajput house of XJdaipur was at the time of his coronation which took place in 1674. The circumstances attending the coronation, I think, throw a great deal of light upon the origin of the caste of Sivaji.
173. Sivaji, from the outset of his career, set himself forward as a champion of Hinduism against Moslem oppression and during the early years of his career there can be little doubt that the fanaticism of Aurangazeb and his ruthless destruction of Hindu temples and the persecution of the Hindus led to a strong feeling that Hindu forces should be organized under a capable leader and effective resistance offered to Aurangazeb who was attempting to conquer the Decean. Sivaji's success marked him out as the person who was best capable of leading the Hindus. Professor Jadunath Sarkar, one of the foremost authorities on the period of Aurangazeb and Sivaji, whose works relating to the two monarchs have received very high praise from eminent eastern and western scholars, in Chapter IX of his "Shivaji and His Times," gives with great clearness the reasons that induced Sivaji and his advisers to think of his coronation. Though one would have expected that, if Sivaji was a descendant of the Rajput chief and a Kshatriya, no objection would have been raised to his coronation, it appears from all accounts that Sivaji had to overcome strenuous opposition based on his being a Sudra. Professor Jadunath Sarkar, whose work "Sivaji and His Times" embodies the latest researches, at page 267 (1st Edition), says:
But there was one curious hindrance to the realization of this ideal. According to the ancient Hindu scriptures, only a member of the Kshatriya caste can be legally crowned as king and claim the homage of Hindu subjects. The Bhonsles were popularly known to be neither Kshatriya nor of any other twice-born caste, but mere tillers of the soil, as Shivaji's great grandfather was still remembered to have been. How could an upstart sprung from such a Sudra (plebeian) stock aspire to the rights and honours due to a Kshatriya? The Brahmans of all parts of India would attend and bless the coronation of Shivay, only if be could be authoritatively declared a Kshatriya. It was, therefore, necessary first to secure the support of pundit, whose reputation for scholarship would silence all opposition to the views he might propound. Such a man was found in Gaga Bhatta of Benares, the greatest Sanskrit theologian and controversialist then alive, a master of the four Vedas, the six philosophies, and all the scriptures of the Hindus and popularly known as the Brahmadeva and Vyas of the age. After holding out for some time, ho became compliant, accepted the Bhosla pedigree as fabricated by the clover secretary Balaji Avji and other agents of Shiva, and declared that that Rajah was a Kshatriya of the purest breed descended in unbroken line from the Maharanas of Udayapur, the sole representatives of the solar line of the mythical hero Ramaohaadra (Dig. 410-12): His audacious but courtierly ethnological theory was rewarded with a huge fee, and he was entreated to visit Maharastra and officiate as high priest at the coronation of Shiva.
174. At page 271 he states how Sivaji had to be purified and made a Kshatriya. It is admitted that Sivaji till the date of his coronation, i.e., till his 47th year, had not been invested with the sacred thread and his ancestors never seem to have gone through that ceremony. Professor Sarkar, at page 271, observes:
But one great defect had to be removed before his coronation could take place. He had to be publicly purified and made a Kshatriya.' On 28th May he performed penance for his ancestors and his own sin of omission in not having observed the Kshatriya rites so long, and was invested by Gaga Bhatta with the sacred thread, the distinctive badge of the twice-born castes like the 'pure' Kshatriyas of Northern India.
175. In this connexion I might refer to an account of the coronation in two Mahratta histories published by Mr. Surendranath Sen under the authority of the Calcutta University. The first is Siva Chhatrapati (life of Sivaji) by Sabhasad Bakhar who was a contemporary of Sivaji and who says he wrote the book at the request of Raja-ram, the son of Sivaji the Great. Speaking of the coronation he says at page 113:
The one Vedmurfci Rajsri Gay a Bhat drawn by the Baje's fame came to see him. The Bhat Gosavi was a great scholar, well versed in the four Vedas and six Sastras and well practiced in the Yoga Skilled in astrology, mantras, and. all (branches of) all learning; he was the Brahma Dev of the Kali age; - such a learned man was he; - the Raja and the sarkarkuns went forward to receive him, and brought him with (all) honours. He was worshipped with the offerings of jewelled ornaments of many varieties, palanquins, elephants, horses, and immense property, Gaga Bhat was very much pleased. In the opinion of the Bhat Gosavi, (as) the Musulman Badshah reigned (stated on a throne with an umbrella over his head), and Sivaji, though ho has subdued four Badshahis and possessed seventy-live thousand cavalry, infantry, forts and strongholds, had no throne, the Maratba Raja should (also) be the Lord of the Umbrella (Chattrapati); so he reasoned. And the Raje also approved (of it.) All the principle men were summoned and when consulted gave their approval. Then the Bhat Gosavi said (that the Baje) should be installed on a throne. Then an enquiry being held about the Raje's family, it was found that the Raje was a Suddhakshatriya; a Sisodia family had come from the North to the Deccan, that was the Raja's ancestral family. Having previously decided that the sacred thread ceremony should be performed as the Kshatriyas of the north assumed the sacred thread, the Bhat Gosavi conferred the sacred thread on the Raje at a holy place. (The Raja) was made a Suddhakshatriya before (the coronation). Much wealth was distributed in charity. Fifty thousand Brahmans learned in the Vedas were assembled from the borne provinces, as well as from foreign territories and holy places of great sanctity. They were all made to stay. Every day they were fed with sweets. Then for the coronation a throne was made jewels of great value were sought from among the nine varieties of priceless jewels that were in the treasury, and set in the throne.... Many gold lotuses inlaid with gems of nine varieties and various other gold flowers and clothes were distributed in abundance... To Gaga Bhat (who had officiated as) the chief priest was given immense wealth. The total expenditure amounted to one Kror and forty-two lakhs of Hons.
176. In Sen's book there are some extracts from Sivadigvijaya and Chitnis Bakhar and at page 241 an account is given of Sivaji's coronatioc According to this account Sivaji was advised that there was a very learned Brahman named Gaga Bhatta in Benares and that be ought to be consulted. The narrative then proceed as follows:
Thereupon Balaji Baba submitted to the Maharaja that there was a very great Kashi Brahman named Gaga Bhatta, somebody should be sent to him to obtain from him the Sastrik injunctions and that it would be well to get the ceremony performed by him. The Maharaja was highly pleased and commissioned Balaji Baba to despatch a Karkun to Kasi and to pay what money was necessary from the treasury. Ramchandra Babaji was accordingly sent. He went with the Maharaja's letter and explained his mission. "Whereupon the Bhatta replied that be would answer after proper deliberation. Several Brahmans of the place, great and small, were accordingly consulted, and the Bhatta answered that only the Kshatriyas were entitled to Chhatra and sinhason, the Sudras were not.... For a year and a half Ramchandra Babaji pleaded that there were so many Sudra kings without any knowledge of Kshatriya rites, but to no avail. Thereupon Balaji Avji wrote to Ramchandra to enquire on what grounds the Chhatra and sinhason had been conferred on the Udayapur Royal family, with whom the Bajah was connected.... The Maharaja, however, remarked, ' How is it that one who does good to the subjects and establishes the religion should have no right (to Chhatra and sinhason). He who has power is really a ting. Are not many kings of low origin enjoying sovereignty? In what respects do they behave like the Kshatriyas.
177. Pausing here, I may observe that it is significant that Sivaji is represented as laying no claims to Kshatriya descent. He rather advances the argument that a low decent is no obstacle to the coronation as many low born kings have been sovereigns and that power is after all the test of kingship. It is also clear that it required a year and a half to persuade the Brahmans to consent and it is probable that the Rajput pedigree was created during that period.
178. These two accounts as to the coronation throw a great deal of light on the claims of Sivaji to the Kshatriya origin. It seems to me to be fairly clear that this claim of Rajput descent from the Udayapur family was made for the first time for the purpose of enabling Sivaji to be crowned in the same manner as the Kshatriya kings were. It is also clear that there was very great difficulty in inducing Brahmins to consent to the claim of Kshatriyaship made on behalf of Sivaji and to crown him with Vedic rites and that it required a lot of persuasion and an immense amount of expenditure before the Brahmans would give their reluctant consent.
179. The late Mr. Justice Telang, a great oriental scholar in an essay by him entitled "Gleanings from Maratha Chronicles," published as an appendix to Justice Ranade's "Rise of the Maratha power" observes:
But from those which relate to Shivaji himself, it rather appears, if we read between the lines, that the claim set up on his behalf to be of the Kshatnya caste was not universally regarded as really and truly tenable, although from considerations of policy and expediency it might be conceded. From the Biographies of Shivaji by Krishnaji Anant Sabhasad,and by Chitragupta, it seems to follow that the search for the origin of Shivaji's family which resulted in the discovery that he belonged to the Sisodo clan of Rajputs who reigned in Udayapur, was not commenced until after the idea of a formal installation (or Abhise-ka) had been started. And Malhar Ramrao Chitnis's narrative, although it proceeds on the assumption of the fact as already established, rather indicates that Gaga Bhatta, the great Pandit of Benares, whose services were put in requisition for the installation ceremonies, had some considerations of policy put to him before he was persuaded to join in those ceremonies. Thoy had also to strain a point, when as a preliminary to the installation, the third ceremony essential for a Kshatriya was performed on Shivaji at a time when he was forty-six or fifty years old, and had already had two sons - an irregularity, which also was, we are told, expressly assented to by all the Brahmans and Pandits. How the Brahmans and Pandits worked their way to this decision none of our authorities states. Further, it is remarkable that none of those authorities anywhere mentions the performance of the thread ceremony upon any of the members of Shivaji's family, except the ones who were installed on the gadi, and then that ceremony is mentioned only in connection with the installation ceremony. In view of these facts, it may be permissible to doubt whether the statements of both Krishnaji Anant Sabhasad and Malhar Ratnrao Chitnis, about Shahaji claiming to be a Rajput of the Sisode clan, or about Jayasing Mirza Raja of Jeypore acknowledging Shivaji as a Kshatriya and dining with him before the installation, deserve to be entirely trusted Taking the whole evidence together, it looks like a case of a more or less deliberate manipulation of facts and religious rules, in aid, of a foregone conclusion adopted for a purely political purpose.
180. As regards the Rajput ancestry, I do not think there is very much to support it. Lieut.-Col. James Tod in his "Annals and Antiquities of Rajasthan" Vol. I, refers to the Udayapur ancestry of Sivaji, According to Tod, Vol. I page 286, which has been marked as exhibit B-176 when Ala-ud-din Khilji in 1275, sacked Chitore, Ajeysi is said to have escaped with Hamir, the minor son of his eldest brother. Ajay Singh's son Sajan Singh is said to have left for Deccan to carve his fortune. So that there must have been an unbroken line of descent between 1270 and Sivaji's birth in 1627. Tod refers to a genealogy of Sivaji which he says was obtained from the Bhats or Troubadours of Me war. The statements of Bhats can hardly be accepted as of much historical value. It is well known that in India bards and poets will exalt the lineage of a liberal patron. There is, however, very little, historically, to support this genealogy which was for the first time thought of at the time of Sivaji's coronation. Though Tod will go back so far as 1275, Waring in his "History of the Marathas" says that Shahaji, the father of Sivaji, was an illegitimate descendant from the Rana of Udayapur and that Babaji Bhonsle, grandfather of Sivaji, upon the death of his father, moved from Udayapur into Kandesb. This story does not agree with the account of Tod as the migration from Udayapur is put in by Waring as only three generations from Sivaji. Mr. Justice Ranado in his History observes at page 46:
It is in the spirit of the same fond superstition that native historians trace for Sivaji a fabled descent from the Royal house of Udayapur.
181. It is significant that in Exhibit B-141 there is no reference made to the descent of Sivaji the Great from the Ranas of Udayapur though, if it were a fact, it is hardly likely that the Rajas of Tanjore would have omitted to mention, among the numerous details which they give of the ancestry, so important a connexion.
182. Though commissions were taken out to examine witnesses in Kolhapur and other places no attempt was made to examine any witness in Udayapur to show that the families of Sivaji and the Rana of Udayapur were related. Reference has been made to a statement by Mr. Enthoven in the Bombay Census Report that a Rana of Udayapur admitted Sivaji's claim to Rajput descent, but no authority is given for this statement and if it is true could easily have been proved by preference to the genealogies preserved in the State. Colonel Tod gives the statements of Bhats or Troubadours as his authority for the statement of Sivaji's ancestors being descendants of a branch of the Udayapur family. The rhapsodies of bards are not of much historical value. No attempt has been made to get any evidence from Rajputana of the Rajput connexion claimed for the family of Sivaji.
183. I may also point out that there has been no case of intermarriage between the members of the Royal family of Odayapur (however remote they may be connected With the Royal family) and the family of Sivaji or any of his descendants. It seems to me to be extremely unlikely that if Sivaji was really i elated to the Ranasof Odayapur, there would have been no alliance considering that the Empire of Sivaji and his descendants was certainly very much more extensive than that of the Ranas of Odayapur. I agree with the Subordinate Judge in his conclusion that no reliance can be placed on the supposed connexion of Sivaji with the Odayapur family.
184. It is argued that the objection of Sivaji's coronation was due to the fact that there was a belief at the time that in the present age (Kaliyuga) there were no Ksbatriyas, but only two castes, namely, the Brahman and the Sudra. It is argued that it was this belief that prevented the Brahmans from consenting to Sivaji's coronation. Reference was made to the sloka in the Bhagavathapuranam wherein it is stated that the Nandas were the last of the Ksbatriyas. Reference was also made to the legend that Parasurama, the contemporary of the avatar of Vishnu, Sri Rama, destroyed all the Kshatriyas. I may state in passing that the theory as to there being no Kshatriyas was referred to and overrled in Chuoturya Run Murdun Syn v. Sahub Purhuald Syn (1857) 7 M.I.A. 18. There is no doubt that this extreme theory is, like several other extreme theories, held by some Brahmans who want to exalt themselves denying rights to other castes. For example, reference is made to it in the Sudra Kamalakara, and defendants' eighty-sixth witness Venkatarama Ayyar says that in his opinion whosoever is not a Brahman is a Sudra. But this view hag never been adopted by the Brahmans as a working rule or enforced. I may here point out that this theory that there were no Kshatriyas in the Kaliyuga or the fourth cycle which commenced over 4,000 years ago does not find a place in any of the books dealing with Hindu Law. Neither in Mitakshara which was composed in the 11th century A. D. nor Dayabhagha or Mayukha which were written much later is there any reference made to the absence of the Kshatriya caste. On the contrary, all the Smriti writers and commentators state as a fact that the four castes, namely Brahman, Kshatriya, Vaisya and Sudra, exist in the Kali age. There have been coronations of numerous kings and it is nowhere suggested that objection was taken to the coronation of Hindu Emperors because of the supposed nonexistence of the Kshatriyas in the Kali age and of the fact that all the kings were Sudras, owing to there being only two castes, the Brahman and the Sudra. History records the crowning of several Emperors like Vikramaditya, Bhoja, Harsha and others. So far as the Puranas are concerned, they are works several of which were written about the 6th century A. D. and some of them later, and though they are the store-houses of Hindu mythology and several of them are sectarian in character, they have not influenced to any great degree the rules of conduct or the division of castes which are laid down by the Smriti writers and by the numerous commentators thereon.
185. In the case of Sivaji we have the undisputed fact that his greatgrand father was only a village headman and cultivator, that neither Sivaji's father, grandfather or great-grandfather had the Upanayana ceremony, which is the distinctive ceremony conferring the status of twice born, performed to them, that though Sivaji was 47 or 50 years old at the time of his coronation and bad been married and had children, the Upanayana ceremony which under the Sastras had to be performed before he completed his 22nd year if ho was a Kshatriya, bad not been performed to him till then and that it was only performed at the time of his coronation for the purpose of enabling him to be crowned.
186. When it is borne in mind how strict and rigid orthodox rules of caste were at that period and how jealously caste privileges were maintained, the non-performance of the chief rite of Upanayana by Sivaji's father, grandfather and great-grandfather which confers the status of Dvija or twice-born and differentiates the three upper classes from the Sudra, is significant. I have already pointed out that one great division of the Mahrattas is the Kunbi class or the cultivating classes who are admittedly Sudras and who have no Upanayana ceremony performed to them and that they have surnames like Bhonsle, Nimbalkar, etc. Under these circumstances, it seems to me that the probabilities all point to Siyaji's ancestors being of Kunbi descent. This is the view that eminent authorities whom I have referred to have taken and a view which I consider to be most consonant with the proved facts of history.
187. It was suggested that the coronation of Sivaji with Vedic rites and with the concurrence of eminent Brahmans conferred on Sivaji the status of a Kshatriya or made him a twice-born even assuming'that he had not that status before his. Upanayanam and coronation. There is no authority in any of the Smrithis or Hindu Law books for holding that the mere performance of those rites would change the caste so as to entail the advantages or disadvantages which the Hindu Law confers upon the members of each caste. But assuming for argument's sake that Sivaji was thus raised to the status of a twice-born and became a Kshatriya, it is not suggested that this act would similarly raise the status of all his collateral relations. It is clear that Sivaji's father Shabaji left for the Carnatic several years before Sivaji's coronation and died there and that Ekoji, the founder of the Tanjore Eaj, the half-brother of Sivaji, was separate from Sivaji and pursued his own conquest in the Carnatic. Ekoji had admittedly no coronation ceremony performed like Sivaji, and it is difficult to see how Ekoji can have been raised to the status of a Kshatriya, simply because his step-brother got the Brahmans to crown him king.
188. So far as Sambhaji, the son of Sivaji is concerned, no Upanayanam ceremony was performed till he was installed as Yuvaraj in 1679. He had been married and had children by then. There is no evidence that Sahu. who reigned till 1749, his son, or Rajaram, his brother, had any such ceremony perfor med at any time, much less any evidence to show that they had Vedic rites and ceremonials. Exhibit F-86 is an account of the year 1750, showing that Upanayanam ceremony was performed to Ramaraja, Sahu's successor. He was brought up in obscurity by a humble family and was said to have been kept in hiding owing to fear of assassination by Sahu. Doubts were thrown on his being related to the house of Sivaji. I shall refer to him later on when dealing with the claims of the Satara branch to succession to the Tanjore estate. There is no other evidence showing that Upanayana to any other member of the Satara Eaj which came to ah end on the deposition of the Raja in 1849 was performed. It is pointed out by Mr. Senrin his extracts from documents relating to Mahratta history at page 114 that an extract from the Peshwas' diaries shows that the descendants of Sivaji had for sometime after the rise of the Peshwas given up the practice of wearing the sacred thread.
189. It is argued that so far as the Satara branch is concerned, the successors of Sahu were virtually prisoners, that the Peshwas were the real rulers and that it was to the interest of the Peshwas to discourage Upanayanam. I find it difficult to follow this argument. The Peshwas, though virtually the rulers outwardly, confirmed to the theory that they were only ministers of the descendants of Sivaji who ruled at Satara. Every Peshwa sought for investiture from the king in Satara and it is difficult to see what interest the Peshwas bad in preventing Upanayanam ceremony from being performed and in thus degrading the rulers in the eyes of the people.
190. It seems to me that as a matter of policy it would have been to the interests of the Peshwas to show that they were ministers of a Kshatriya prince rather than of a Sudra if as a matter of fact the descendants of Sivaji were Kshatriyas. That the Peshwas did not object to Upanayana being performed is clear from Exhibit F-86 which shows that when they set up Ram Raja in 1750, Upanayanam was performed when he was brought from his place of exile to Satara. The Peshwas claimed to be high class Brahmans; service under a Sudra is condemned by Manu and other Smrithi writers. For example, Manu, Chapter XI, verse 70, makes attendance by a Brahman on a Sudra, a ground of social degradation. The Peshwas are not likely to have put themselves in this position especially as their power was too deeply rooted to be affected by the caste of the king. The probabilities are that the ceremony of Upanayanam was only gone through as an adjunct to coronation following the example of Sivaji and was given up latterly when that rite had no political necessity or significance during the time of the Peshwas.
191. [His Lordship gave special attention to the evidence adduced by the fifteenth defendant and held that it was insufficient to prove either that all those who call themselves Mahrattas are Kshatriyas or that the term Mahratta includes the two classes only, the Kshatriyas and the Sudras. Then coming to the case of Tanjore, His Lordship discussed the alleged instances of Upanayanam having been performed and proceeded:]
192. I have dealt in detail with Upanayanam, because it is admitted on all hands that it is the ceremony which differentiates the three higher classes, namely, the Brahman, the Kahatriya and the Vaisya, from the Sudra. It appears from the evidence, and it is not disputed before us, that several lower orders who, according 'to Sastras, would not be entitled to wear sacred thread have been putting on the sacred thread and going through a ceremony like the Upanayanam ceremony of the three higher classes with a view of raising their status. In the District Manual it is stated that all Mahrattas, higher and lower wear the sacred thread (pages 173 and 175), and the evidence adduced shows that classes who are admittedly Sudras, like blacksmiths and goldsmiths, wear the sacred thread (for example, see the evidence of Sitarama Dikshadar, D.W. 43). In Jogendro Bhupati v. Nittyanand Man Singh (1885) 11 Cal. 702, which was affirmed on appeal by the Privy Council in Jogendro Bhupati Hurrochundra Mahapatra v. Nittyanund Man Singh (1801) 18 Cal. 151, lit was pointed out that wearing the sacred thread, though worthy of notice, is by no means conclusive on the question of caste. Garth, C.J., observed:
But it is contended that the fact of Jogendro being invested with the sacred thread tends to show that the Sukanda Rajas as well as Panikota Rajas belonged to the Kahatriya caste. We think this circumstance, although well worthy of notice, is by no means conclusive on the point. No doubt, the Rajas of Sukanda, like other Rajas of Kuttuk, endeavoured to assume the rank of true Kshatriyas, but whether they were so in fact is more than doubtful.
193. The Chief Justice also lays great stress on the fact that the Ranis stated in the written statement that they were Sudras. I shall refer to the statement of the Ranis in this ease that they were Sudras, later on,
194. This would not make them twice-born or raise their status from Sudraship to anything highor. There can be little doubt-that, so far as the first three twice-born classes are concerned, Upanayanam is regularly performed. It is an important ceremony which is invariably performed with a certain degree of pomp and publicity. "Where in cases of controversy as to whether a person belongs to the twice born class or the Sudra class, it is shown that Upanayanam ceremony was not performed, it is a very important piece of evidence to show that the person belongs to the Sudra caste and not to the higher caste, though the converse case of the non-performance of Upanayanam by the twice-born would not necessarily show that the person not performing it belongs to the lower class.
195. It was argued that the mere non-per-fovmance of Upanayanam would not, in the case of the higher classes, necessarily reduce the person to the level of a Sudra. This may be so only where it is proved that the person giving up the ceremony belonged to the higher class. So far as the ceremonies that are essential to give persons the status of twice-born are concerned, they are fixed by the Smrithis Where the question is as to the caste of a particular person, the performance of the essential rites required by the Shastras assumes importance in fixing the caste. I have gone through the evidence relating to the Tanjore branch of the family and I do not think the evidence shows that Upanayanam was performed to any of the kings until we come to Serfoji, the adoptive father of the last Raja, and that from that period the evidence is by no means satisfactory as to the performance of the Upanayanam in the case of the adopted son and the near relations of the deceased Raja.
196. In cases of Sudras for whom Upanayanam ceremony is not prescribed, there is the practice of putting on the sacred thread at the time of the marriage or funerals ceremonies. This is called the Alankara Poonool or Loukika Poonool (or the ornamental sacred thread) and is merely an imitation of the higher classes involving no religious consequences - not being prescribed by any of the Smrithis. The fact that, in the instances of any reference to the Upanayanam in the account, it is part of the marriage ceremony and the fact that a very small sum is spent shows that the ceremony was more in the nature of putting on an Alankara Poonool or Loukilta Poonool. The whole evidence as to Upanayanam is discussed in paragraphs 1484 to 1526 of the judgment. I do not think the evidence shows that the Mahrattas in Tanjore have the Upanayanam performed with the rites prescribed for the twice-born classes.
197. Closely connected with the Upanayanam ceremony is the Gayatri Upadesa or the teaching of the sacred verse in the Vedas called Gayatri. It is the teaching of the Gayatri mantra at the Upanayanam that really confers on the Brahman, the Kshatriya or the Vaisya the status of a twice born. The Gayatri mantra is a mantra from the Rig Veda. According to the Asvalayana Grihya Sutra, the Gayatri for the Brahman is also the Gayatri mantra for the Kshatriya. As an alternative, in some of the Grihya Sutras two other Yedio verses are prescribed for Kshatriyas; one beginning with Tam Savitah and the other with Dova Savithuhu. There is no Gayatri mantra for Sudras. The Brahman Gayatri is one of the most sacred verses of the Rig Veda which when translated, runs as follows:
Let us meditate on the sacred light of that divine Sun that it may illuminate our minds.
198. I have already referred to the texts wherein Vedic mantras are prescribed only for the three higher or twice-born ftlasses and prohibited for the Sudras. In case of Sudras, rituals had to be performed without the recitation of sacred mantras. In course of time it was felt that, so far as the Sudras were concerned, though Vedic mantras were forbidden, there should be some substitute and the Puranas, which, although looked upon with reverence by the mass of Hindus, ranked below the Vedas in point of sacredness, wore resorted to for the purpose of supplying the mantras to be recited for ceremonies among Sudras and Vedic ritual was confined to the three higher classes, while the Puranio ritual was confined to the Sudras. It was thought that, just as the Gayatri mantra was the hall-mark of the three superior classes, the Sudras should have some mantra of their own and the first verse in Devi Bhaghavatham, one of the Puranas was selected as the mantra which the Sudras ought to use. That sloka begins Sarva Chayithana Roopnam and may be translated thus:
I meditate on the beginningless Vidya which is of the nature of all consciousness. May She stimulate our intelligence to the realization of that (the Supreme Being).
199. The evidence in this case is conflicting both as to the caste of the parties, whether the rituals were Vedic or Puranio and whether the mantra taught was the Gayatri or the sloka from the Devi Bhagavatham. Each side has adduced evidence. Those called for defendants 4 to 11 want to make out that the parties are Sudras, that the rituals were Puranio and that the Gayatri which was taught to the members of the Royal family was not the Vedic Gayatri which is imparted to the members of the three higher classes. The other defendants want to make out that the parties are Kshatriyas and that the ritual was the ritual of the twice-born classes. In estimating the value of the evidence given, it has to be borne in mind that during the time of Sivaji, the last Prince, and Sivaji's father, attempts were made to adopt the rituals of the twice-born classes ; but the mere performance of ceremonies which are performed by the twice-born classes would not, as is conceded on all hands, elevate the Sudras or the fourth class to the status of the twice-born class, though where the caste of a family is doubtful and its origin cannot be traced, the performance of Vedic or Puranio rituals without any objection for a long series of years will be important evidence as to the caste.
200. [His Lordship further discussed evidence and after holding that neither the members of the Tanjore family nor the Mahrattas of Tanjore had the Gayatri mantram taught to them at such of the Upanayanam ceremonies as were proved to have been performed to the members, proceeded:]
201. It was argued that the Mahrattas have got gotras connecting them with Rishis and that this is one indication of their being one of the twioe-born classes. The (mere fact of having a gotra would not settle the question as many Sudra families lhave gotras Borne Rishi gotras and some non-Kishi gotras. One important thing connected with gotra is pravara; and gotra and pravara go together. Almost all the witnesses who say that the defendants are Kshatriyas are unable to give their pravara. So far as the Sudras are concerned, though they have gotras, there is no question of any pravara. Defendant's 103rd witness Sankara Rao, who is a Mahratta Sudra, states tbat he wears a saored thread and that his gotra is Kapila Rishi gotra. Defendants' 89th witness Kannuswami Ayyar, who is a priest, states that, among Sudras, Nayudus and Chetties have got gotrams.
202. There is one other very important point which shows that the parties are Sudras. It is admitted that, so far as the twice-born classes are concerned, marriages between members of the same gotra and pravara are absolutely forbidden, and, if performed, would be invalid; among Sudras this rule does not apply. (See Mayne's Hindu Law, paragraphs 86 and 87, pages 103 to 105). The evidence in this case is that, among Mahrattas marriages are contracted between members of the same gotra. Manoba Saheb, the 26th witness for defendants 1 and 2, who is a close relation of the Banis, states that Mahrattas marry in the same gotras and admits that it is a deliberate overriding of the Shastras. The third defendant in his evidence states that his adoptive father belongs to Vasishta gotra and his natural father to Jabalasa gotra. He admits that the gotra of his mother before marriage was also Vasishta; so that his adoptive father would have married a girl of the same gotra. The seventh defendant in his evidence gives instances of marriages between members of the same gotra, namely, Athri gotra and Vasishta gotra. An attempt was made at the examination of the defendants' first witness Mr. Ghautige to explain the sagotra marriages by stating that the girl was given in adoption before the marriage. The question was put to him in re-examination in a leading form and he gave the answer. There is nothing in Hindu Law which sanctions a girl being given in adoption; and the evidence of this witness has not been followed up by the other witnesses by giving instances of adoption. It should be remembered that, as in the case of marriages, the prohibition of sagotra would apply to the gotra of both the natural and adoptive fathers; so that mere adoption would not take away the prohibition even assuming the girl was given in adoption, A man cannot marry his sister's or brother's daughter by resorting to an adoption with another family. The fact that sagotra marriages exist among Mahrattas and among the members of the Royal family strongly probabilizes the view that the parties are Sudras, and that as such prohibition does not apply to Sudras, sagotra marriages have taken place.
203. The next point is about the funeral ceremonies. In regard to sradhs, the offerings to the ancestors called pinda consist in the case of Kshatriyas, of cooked rice balls or pindas, while in the case of Sudras cooked rice is not used but only flour. So far as the accounts relating to sradhs go, they all show that the pindas offered were made of flour and not of cooked rice. No document was referred to in the course of the argument which shows that cooked rice pindas were offered. The Subordinate Judge deals with this portion of the case in paragraphs 1470 to 1475 of his judgment. Having regard to the accounts which give minute details as to the quantity of flour purchased and used, the evidence of the witnesses called to show that at sradhs rice pindas were offered is, in my opinion, not true. Another important point in the ceremony is the performance of the homam or the giving of oblations in the sacred fire that is lighted. According to Smrithis, the Kshatriyas are entitled to have the homam performed at sradhs and if sradhs are performed according to Vedio rites, homam is indispensable. The 21st defendant Hari Saheb Mohitai, who examined himself as the 46th witness for defendants 1 and 2 and who claims to be a Kshatriya, states that no homam was performed at the sradhs performed by him. Yeswant Rao Saheb, 69th witness for defendants, who is related to the Ranis, states that he does not do homam in performing Brahmayagnyam at sradhs. The witnesses called by defendants 4 to 11, whose case is that the parties are Sudras, state that no homam was performed. As regards intermarriages, there is reliable evidence to show that the descendants of Sivaji contracted alliances with the families of Soindja and Holkar, who are Sudras, (Sir John Malcolm's Central India, pages 116 and 142.) The Subordinate Judge refers to the marriages in paragraph 1382 of his judgment. It is also proved that Sudra cooks were employed in the Tanjore Royal Palace and having regard to the well-known fact that none of the three twice-born classes would take food prepared by Sudra cooks', this circumstance is also a strong piece of evidence as to the caste of the parties.
204. [In the course of his discussion of the evidence of judicial proceedings and statements of parties made therein, His Lordship observed as follows:]
205. In dealing with the case of a particular family, I think the evidence given in litigations between members of that family which raise the question of caste and decisions of Courts as regards the caste of the family are relevant. If the judgment is evidence, the recital in the judgment of the evidence of the witnesses is also relevant especially when the original depositions have been destroyed under the rules of Court.
206. [Continuing the discussion of evidence, His Lordship said:]
207. Exhibit D-78 is a deposition by Ramakumaramba Bai Saheba (one of the widows of the late Raja) in Original Suit No. 400 of 1907 on the file of the District Munsif of Tanjore. In the deposition, while giving her religion she has stated "Hindu Sect, Mahratta Sudra". Defendants' ninety-fourth witness, T. Dasarathi Sahib, who speaks to this statement being recorded and whose father was the younger brother of the Rani Ramakumaramba Bii Saheba, states that he was a party to Original Suit No. 400 of 1907 and that he was present when Ramakumaramba Bai Saheba was examined as a witness by Sirkle Vaman Rao who was appointed Commissioner to take her evidence as she was a gosha. He states that the deposition was read out to her and that she signed it. In cross-examination he states that the deposition was road over to her, that the Commissioner swore her in Mahratti and then questioned her about her husband's name and caste and that he remembers wall that she said he was a Mahratta Sudra. It is clear from the evidence of this witness whom the Judge believes on this point that the statement of caste was male by Ramakumaramba Bai Sahaba haraalf; and thus there is no force in the contention founded on the decision of their Lordships of the Privy Council in Maqbulan v. Ahmad Hussain (1904) 26 All. 108. There is no reason to suppose that the Commissioner who was a Sirkle and disinterested falsely put in the description of caste.
208. [His Lordship further pursued his discussion of the evidence and remarked:]
209. It is argued by Mr. Varadachari for the fifteenth defendant that where the caste of a particular family is not clear from the evidence, the assertion made for 200 years by the members of that family that they belong to a particular caste would be valuable evidence and would raise a prima facie presumption that they belong to the caste to which, they allege, they belong. As, however, in the case of the Tanjore Raj there has been no such uniform description of the parties by themselves as Kshatriyas, I do not think any such presumption arises. Again we have the fact that so far as the family of Sivaji is concerned, the claim to Kshatriyaship has been denied. It was denied at the time of the coronation of Sivaji. It was denied when the members of the Kolhapur Raj wanted to have Vedic rites performed on the footing that they were Kshatriyas and recourse had to be had to dismiss the priests and resume their jaghirs and otherwise coerce them to submission and in the case of the Tanjore Raj, Serfoji, the father of the last Raja, had to exercise considerable pressure upon the priests before they would perform the ceremony of investing him with the sacred thread on his return from Benares and when he was about 50 years old. Under these circumstances, I do not think that there is any ground for drawing a presumption from a long course of conduct. The caste of Sivaji must therefore be proved like any other fact without any presumption that, either because he was a Mahratta or because the surname which his family bore was one which is included in one of the 96 olans, he should be a Kshatriya.
210. There was some argument at the bar as to the presumption to be drawn as to the caste of a party when the evidence was unsatisfactory. The Subordinate Judge in his judgment, after a reference to the authorities, was of opinion that the presumption in the absence of evidence that parties are of twice-born classes is that they are Sudras. He deals with the question in paragraphs 1295 to 1302 of the judgment. I do not think it necessary to discuss the question as there is evidence on both sides and there is no question of onus or presumption. If it were necessary, I think that Muthusami Mudaliar v. Masilamani (1910) 33 Mad. 342 approved by the Privy Council in Ma Yait v. Maung Chit Maung A.I.R. 1922 P.C. 197 and in Soundararajan v. Arunachalam Chelty (1916) 39 Mad. 136 support the view that all Hindu castes that are not proved to be twice-born classes must be treated as Sudras. I am of opinion that the evidence establishes that the members of the Tanjore Royal family are Sudras and not Kshatriyas, and I agree with the Subordinate Judge in his conclusion on this point,
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