The last witness to be considered in this connection is D.W. 22. I wish to state at the outset that had the evidence of the handwriting expert in proof of these disputed documents stood alone, I would have had great hesitation in accepting it. Mr. Wasim has cited the opinion expressed in numerous authorities and text books in regard to the evidence of a hand-writing expert. I am fully conscious of the fact that it is dangerous to place implicit reliance upon the evidence of such witnesses. But in the present case the evidence of the hand-writing expert is supported by the evidence of two witnesses who are thoroughly conversant with the Raja's hand-writing and having regard to the detailed reasons given by D.W. 22 for his opinion as to the genuineness of the hand-writing, I see no reason for its rejection.
Equivalent Citation: AIR1947Oudh180,21Luck362
IN THE HIGH COURT OF OUDH
FULL BENCH
FULL BENCH
Decided On: 10.05.1946
Appellants: Deputy Commissioner
Vs.
Respondent: Chandra Kishore Tewari and Ors.
Vs.
Respondent: Chandra Kishore Tewari and Ors.
1. This is a defendant's first appeal, filed by the Deputy Commissioner of Lucknow, in charge of the Court of Wards Sissendi estate, against the judgment and decree of the Additional Civil Judge of Lucknow, dated 21-3-1940, decreeing the plaintiffs' suit. The suit was filed by Chandra Dhar Tewari and Chandra Prakash Tewari as reversioners of Raja Chandra Shekhar. They transferred a one-fourth share in the taluqdari and non-taluqdari properties and a half share in the mesne profits with the exception of certain villages, to Mt. Parvati Devi, mother of Pandit Kanhaiya Lal Shukla, by a sale-deed dated 31-5-1937, (EX. 23) in which it was agreed that she was to meet all the expenses of the litigation. She died on 11-7-1937, before the institution of the suit leaving as her sole heir and representative, Pandit Kanhaiya Lal who is a senior and leading practitioner of Bara Banki, which is about seventeen miles from Lucknow.
2. The suit was originally filed in the Chief Court on the original side but when the original jurisdiction was taken away by the United Provinces Act (NO. IX of 1939), it was transferred to the Court of Mr. (now Justice) Kaul, Additional Civil Judge of Lucknow. The issues in the suit were framed by Hamilton J., to whom the case was first sent for disposal. The learned Additional Civil Judge decreed the plaintiffs' suit and the appeal came up for hearing before a Bench of this Court consisting of Ghulam Hasan and Walford JJ. and as the learned Judges differed in their views, the appeal was laid before me as Chief Judge under Section 13(2)(b), Oudh Courts Act, for Constitution of a Full Bench. It has been impossible for me to constitute a Full Bench with three independent Judges as members of it. The present strength of the Court consists of six Judges, including the Chief Judge. Misra and Kaul JJ. were incompetent to sit on the Full Bench because the former was one of the leading counsel on behalf of the Court of Wards and the latter decided the suit. The only two independent Judges available were Madeley J. and myself. If I had put Madeley J. as a member of the Full Bench, I would have been compelled to put one of the Judges of the Division Bench. This would have been unfair to the other Judge of that Bench. The position after the summer vacation would not have been any better if not worse. I, therefore, decided to put both the Hon'ble Judges of the Division Bench as members of the Full Bench. I may mention that Sir Tej Bahadur Sapru did not want a junior independent Judge in the Full Bench.
3. The appeal was argued before the Division Bench at great length and both the learned Judges took time in writing well-considered and detailed judgments. Both the judgments, give the full facts. I may state that both the original plaintiffs are dead and respondents 1(a), 1(b) and 1(c) are the legal representatives of Chandra Dhar Tewari while respondents 2(a) and 2(b) are representatives of Chandra Prakash Tewari. The pedigree connecting the plaintiffs is given in all the three judgments and, therefore, it is not necessary for me to repeat it again. It shows how Chandra Dhar Tewari and Chandra Prakash Tewari were connected with various persons mentioned in the judgment. In my opinion nothing much now turns on the pedigree as it was an admitted fact that the original plaintiffs were the nearest reversioners of Raja Chandra Shekhar on the death of the latter's widow, Subhadra Kuer, in 1934.
4. The dispute relates to the Sissendi estate which is situated at a distance of about twenty miles from Lucknow. This estate was exempted from confiscation after the Mutiny of 1857. Raja Kashi Prasad was the first taluqdar of the Sissendi estate and it was settled with him in the second Summary Settlement after the annexation of the province of Oudh. His name was entered in lists I, III and V prepared under Section 8, Oudh Estates Act (NO. I of 1869). It is common ground that Raja Kashi Prasad on 15-6-1866 adopted one Ram Krishna and renamed him Chandra Shekhar. Raja Kashi Prasad died in 1873 and his adopted son Chandra Shekhar succeeded to the taluqa and other properties. Raja Chandra Shekhar died in the year 1928 and he had no issue; he was succeeded by his widow, Rani Subhadra Kuer. She died on 13-11-1934 and on her death the estate was taken under the superintendence of the Court of Wards on behalf of Vijai Kumur minor, alleged to have been adopted by Rani Subhadra Kuer.
5. The plaintiffs' case is that Raja Chandra Shekhar gave no authority for the alleged adoption and if there was any such authority, it was forged and void, that the Raja was of unsound mind and could not in law confer any valid authority to adopt, that the ceremonies of adoption gone through were merely for show and were ineffectual. It was further alleged that the authority contained in certain letters alleged to have been written by Raja Chandra Shekhar, was invalid for want of registration and on account of not being properly stamped. The plaintiffs claimed all the taluqdari and non-taluqdari property, both moveable and immovable in the possession of the Court of Wards and also mesne profits. I may at once mention that the plea that the Raja was of unsound mind was later on given up and never pressed and it has not been pressed before me.
6. On behalf of the defendant, it was alleged that Raja Chandra Shekhar gave Rani Subhadra Kure, his widow, authority to adopt and the said authority did not require registration or any stamp. It was denied that the Raja was of unsound mind. The present suit was filed on 7-10-1937 and the plaintiffs applied for amendment of the plaint on 18-11-1938, that is, nearly a year after, and alleged that the feelings between husband and wife wore bitter and they were hostile to each other. This amendment was introduced by the plaintiffs to show that inasmuch as bitter and hostile feelings existed between the Raja and the Rani, it was in the highest degree improbable that he would have, at any time conferred a power upon her to adopt a son. It is indeed surprising that such an important fact should have been omitted from the original plaint, and the validity of the letters relied on by the defendant was not challenged on the ground of hostility between Raja Chandra Shekhar and his Rani but only on the ground that at the time the letters were alleged to have been written, the Raja was of unsound mind. I shall presently refer to this matter but it is necessary to mention that the fact alleged by way of amendment is the sheet anchor of the plaintiffs' case. In fact the learned trial Judge has relied upon the allegation of hostility as the main, and so far as I have been able to follow the judgment, the sole reason for rejecting, the disputed letters. The trial Court held (vide page 270 line 37 of the printed record):
To sum up, the conclusions arrived at by me are that the estrangement between Raja Chandra Shekhar and his Rani Subhadra Kuer began only two or three years after their marriage sometime in 1881 to 1884. This estrangement continued throughout the Raja's life. Though the real reason for this estrangement could not be ascertained definitely, there can be No doubt that the relations between the Raja and his wife were exceedingly bitter and hostile. In view of such estranged relations, it was highly improbable that the Raja should in 1889 have written letters A-189 to A-191 conferring on his wife an authority to adopt a son to him after his death. The defendant entirely failed to establish the existence of an initial probability in favour of the grant of such authority. Nor is it probable that even if the Raja had given such authority to adopt in 1889, he would have allowed it to remain uncancelled before the Rani's application for getting him declared a lunatic was made. The conduct of the Rani in 1899 and 1923 was wholly inconsistent with her being in possession of those letters and the weight of the evidence leading to that conclusion is not displaced by the doubtful testimony of Sidh Nath and Ajudhia Prasad. The evidence of D.W. 2 and D.W. 4 in proof of the letters is unreliable and that of Mr. Chaudhri the hand-writing expert would not bear examination. Even if it deserved that more weight should be attached to it, it would at best be inconclusive. The result, therefore, is that the issue is found against the defendant.
The validity of this finding will be noticed presently.
7. With regard to the insanity of the Raja, the learned trial Court held that if the grant of an otherwise valid authority to adopt were established, it would not fail on account of the insanity of Raja Chandra Shekhar. The learned trial Court further held that the letters Exs. A-189 to A-191 required registration under Section 17(3), Registration Act and further they were inadmissible in evidence so long as the duty payable thereon and the penalty prescribed by Section 35, Stamp Act was not paid in respect thereof. Ghulam Hasan J. has agreed with the above findings and has dismissed the appeal while Walford J. is of opinion that the letters of authority Exs. A-189 to A-191 were genuine and did not require registration. He was further of opinion that they were admissible in evidence.
8. I must at once say that the defendant is seeking to displace the natural succession to the property and, therefore, the burden lies heavily on him to prove his case. It is true that a good deal of time has elapsed and evidence on certain points is not available but this by itself is not sufficient to remove the burden which is placed on the defendant and no presumption because of lapse of time can be made in favour of the defendant.
9. The most important points, therefore, which call for decision in the appeal are whether the alleged letters of authority, Exs. A-189 to A-191 are genuine documents and if genuine did they require registration and stamp in respect of either movable or immovable properties or both. There is another small matter, namely, whether villages Bilaura, Khirpur, Pardumanpur and Dulwa were non-taluqdari properties.
10. I shall now take up the first question namely, whether Exs. A-189 to A-191 were genuine. The defendant in proof of their genuineness relies on direct and circumstantial evidence while the plaintiffs in rebuttal have tried to show that at the time when these letters were alleged to have been written, the relations between Raja Chandra Shekhar and his wife were bitter and hostile and it was in the highest degree improbable that he should have written the disputed letters or given her authority to adopt a son after his death. The plaintiffs also rely on certain circumstances, and the strong circumstance relied on is that the conduct of the Rani in the lifetime of her husband and after his death was wholly inconsistent with the existence of these letters in the lifetime of the Raja. The plaintiffs have also examined a hand-writing expert to prove that these letters were not genuine. [His Lordship then considered the evidence relating to the genuineness of the letters and in the course of the discussion observed as follows:]
11. As a rule great weight is to be attached to the opinion of a trial Judge who has had the advantage of seeing the witnesses and observing their demeanour but where a Judge rejects evidence not because he is dissatisfied with the manner in which it has been given but because he has made certain assumptions or drawn inferences from circumstances not directly connected with the evidence of that witness, it is incumbent upon the Court of appeal to strictly scrutinize the evidence for itself and attach such value as the evidence warrants. Upon my finding that it has not been established that there was ill-feeling or hatred between the Raja and the Rani at the time when the disputed letters were said to have been written I find nothing in the evidence of the two witnesses which will warrant its rejection. I am not prepared to hold that their testimony is based on inferences or is of inconclusive character.
12. The last witness to be considered in this connection is D.W. 22. I wish to state at the outset that had the evidence of the handwriting expert in proof of these disputed documents stood alone, I would have had great hesitation in accepting it. Mr. Wasim has cited the opinion expressed in numerous authorities and text books in regard to the evidence of a hand-writing expert. I am fully conscious of the fact that it is dangerous to place implicit reliance upon the evidence of such witnesses. But in the present case the evidence of the hand-writing expert is supported by the evidence of two witnesses who are thoroughly conversant with the Raja's hand-writing and having regard to the detailed reasons given by D.W. 22 for his opinion as to the genuineness of the hand-writing, I see no reason for its rejection. (After further discussion of the evidence his Lordship proceeded.)
13. Upon a careful consideration of the entire evidence and the circumstances I find myself in complete agreement with Walford J., in holding as a fact that the disputed letters Exs. A-189 to A-191 have been satisfactorily proved to be genuine.
14. The next important question for determination is whether the disputed letters Exs. A-189 to A-190 and A-191, which contained the consent of Raja Chandra Shekhar to his wife are valid in law in the absence of registration. The contention of the learned Counsel for the plaintiff respondents is that a consent in writing is tantamount to an authority to make an adoption and is therefore hit by Section 17(3), Registration Act. The next line of argument is that assuming that the consent in writing mentioned in Clause (8) of Section 22, which applies to Mohammadan Taluqdars only, may not be required to be registered, a Hindu Taluqdar who is governed by Clause (1) of Section 22, Oudh Estates Act, in the matter of adoption comes within the ambit of his personal law and any authority conferred by him upon his wife cannot escape registration. The second line of argument is based upon results arising from certain observations made by their Lordships of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87 and which is known as 'The First Sissendi case.' He has also relied on a decision, to which I was a party, known as the Second Semri case: reported in Mata Bakhsh Singh v. Ajodhiya Bakhsh Singh A.I.R. 1936 Oudh 340 .
15. On behalf of the defendant-appellant it is strenuously contended that the matter of adoption by the widow of a Hindu Taluqdar like adoption by the widows of Taluqdars of every other community, is governed by Clause (8) of Section 22, Oudh Estates Act, and being a Special Act, making provisions for special class of persons and special class of property it was not affected by a subsequent general Act. He further contends that his argument would hold good even if an adoption by a Hindu Taluqdar came within Clause (1) of Section 22, Oudh Estates Act, for he argues that the general personal law of a Hindu Taluqdar having been embodied by implication in Clause (1) of Section 22 no alteration thereto can be made by implication by a subsequent general Act. And, he finally argues that strong evidence that a consent in writing by a Taluqdar, whether Hindu or otherwise, was not required to be registered is furnished by the Oudh Estates Amending Act III of 1910, which latter Act by a proviso appended to the new Clause (7) of Section 22 made all consents in writing compulsorily registrable.
16. Before proceeding to examine the respective contentions of the parties a brief history of the application of the Registration Act in Oudh may be stated. Before the year 1871 the then existing Registration Act in India was not applicable to Oudh. The registration in Oudh was provided for and carried out under a set of rules sanctioned by the Chief Commissioner of Oudh. The Registration Act of 1871 was enacted and extended to the whole of British India, including Oudh, and was brought into force from January 1872. Before the passing of the Oudh Estates Act. I of 1869, a Hindu Taluqdar, as every other Hindu, could confer an authority on his wife orally or in writing to make an adoption and if the authority was contained in a document it was not required to be registered. By the passing of Act, I of 1869, the Legislature for the first time imposed a restriction upon Taluqdars in respect of an authority in writing; for, by Clause (8) of Section 22, Oudh Estates Act, it provided that:
and upon the death of such widow then to such son as the widow shall, with a consent in writing of her deceased husband, have adopted by a writing executed and attested in a manner required in case of a will, and registered, subject as aforesaid.
17. I shall now proceed to examine the contentions of the parties and the authorities cited. The entire argument of Mr. Wasim, counsel for the plaintiff-respondents, is based not directly upon the observations made by their Lordships of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87 , but upon the results which, according to him, flow from such observations. Reliance is placed upon the following passage of their Lordships' judgment:
It is to be remarked here that, unlike Clause 5 in the original Act, which the present Clause 4 replaced, Clause 4 says nothing about the mode or circumstances of the adoption, but is generally applicable to any form of adoption. In the former Act Clause 5 simply introduced into the order of succession the Mahomedan adoptions, which by the subsequent Section 29 were brought into existence in a statutory, documentary form, without religious or other ceremonies. Clause 4 in the new Act brings into their place in the order of succession adoptions, both Mahomedan and Hindu, for the old Section 29 is amended and enlarged and all adoptions are now required to be completed by written documents subsequently registered. Thus the reference to persons adopted in the amended Clause 4 is general and covers all adopted persons, the definition of the form which makes them adopted persons being now relegated to the altered Section 29, except that, in the case of adoption by a widow, a proviso is anomalously attached to Clause 7, Section 22, prescribing the conditions to be observed by her, which would more regularly have formed a further addition to the altered Clause 29.
The result, however, of the alteration made by the Act of 1910 is that adopted sons, whether in Hindu families or otherwise being now separately introduced into the succession, 'sons' in Clauses 1, 2 and 3, do not include adopted sons, although a change in the general Hindu law of succession results from the change in the Act, Under the Act of 1869, Hindu adopted sons came in either as sons under the first three clauses or under Clause 11, the latter being barely credible. Under that of 1910, all sons adopted by men come under Clause 4 and by widows under Clause 7. The resultant alterations in general Hindu law are deliberate and are considerable.
18. It will be observed that though their Lordships of the Privy Council held that a son adopted by a Hindu taluqdar would come in under Clause 1 of Section 22, nowhere throughout the judgment have they expressed any opinion on the question whether Clause 8 of Section 22 so far as it related to consent in writing to a widow affected a Hindu taluqdar or not. In fact, there is no reference to Clause 8 at all in their Lordships' judgment. Therefore, the first point to be decided is whether Clause 8 of Section 22 was or was not applicable to the Hindu taluqdars prior to the Amending Act, 3[III] of 1910, and whether there is anyting in the observations of their Lordships of the Privy Council which will constrain the Court from holding that Clause 8 was not so applicable. In Maharajah Pertab Narain Singh v. Maharanee Subhaso Koer (76) 4 I.A. 228 while considering the applicability of certain clauses of Section 22 of Act, [I] of 1869, to Hindu taluqdars, their Lordships of the Privy Council observed as follows:
Moreover, it is to be observed that the 4th, like every other clause in Section 22 applies to "all the taluqdars whose names are included in the second or third of the lists prepared under the Act, whether they are Hindus, Mahomedans or of any other religion.
19. Mr. Wasim, the learned Counsel for the plaintiffs-respondents, has contended that in view of the decision of their Lordships of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87, the adoption whether made by Hindu taluqdars themselves or by their widows before 1910 must necessarily come within Clause 1 of Section 22, that as Clause 1 of Section 22 declares the status of a son it embraces both natural as well as adopted son but as it does not prescribe the method or the procedure to be observed in making an adoption, it must be deemed to have been left for determination by the general personal law of the Hindu taluqdars as modified by custom or any general statute and that a priori the general Hindu law having been modified by the Registration Act, no adoption made by a widow can be valid unless the authority to do so conferred on her has been duly registered. These contentions would prevail if two facts are admitted, firstly, that their Lordships of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87 intended to hold that the Oudh Estates Act did not in any way affect, modify or limit, not only the religious ceremonies required by the personal law of a Hindu taluqdar to be observed, but even the ancillary and non-religious procedure of conferment of power upon a widow and that Clause 8 or anything contained therein was inapplicable to a Hindu taluqdar. And secondly that the view of their Lordships of the Privy Council expressed in Maharajah Pertab Narain Singh v. Maharanee Subhaso Koer (76) 4 I.A. 228 that every clause of Section 22 was applicable to Hindu taluqdars, unless it could be reconciled with Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87, was incorrect. It is impossible for me to accept either of the two propositions as correct and it is, therefore, to be seen whether their Lordships did in fact hold or intended to hold as contended by the learned Counsel and whether the two rulings of their Lordships are capable of reconciliation.
20. It is not necessary to state the facts of the case in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87 as they have been given in the judgments of the learned Judges forming the Division Bench in this appeal. The controversy in that case was whether a natural brother of an adopted Hindu taluqdar could succeed to a taluqdari estate on the death of such taluqdar in preference to his widow. The suit was tried on the original side of this Court by Ashworth J. The decision of the learned Judge is reported in Brijraj Chandra v. Subhadra Kuar A.I.R. 1926 Oudh 324. I may quote the headnotes therefrom to show the line of reasoning adopted by the learned Judge in deciding the suit,
'Son' in Clause 1 of Section 22, Oudh Estates Act (I of 1869) includes son adopted by ceremony where the personal law of the deceased taluqdar allows such adoption. It is inconceivable that Act I of 1869 should have been intended to take away from Hindu taluqdars their power to regulate succession to estates by adoption by religious ceremony and it seems quite impossible to work that Act without invocation of the personal law. Clause 5 and Clause 8 of Section 22 should not be held to apply to any class but Mahomedans. Clause 5 should only be held to confer the power of adoption by implication if such power must necessarily be implied in order that the clause should have any meaning. If the section can have sufficient meaning without finding implied in it the said power, then the implication should not be made. Section 29 of the Act confers the power on Mahomedans to adopt by deed. It is expressed in the form of an enabling enactment and not of a restrictive one. A complete meaning can be given to Clause 5 of Section 22 by reference to the power given in Section 29 and this power is only given to Mahomedans. The same remarks apply to Clause 8 of Section 22 since Section 29 also confers a power of adoption by deed upon Mahomedan widow of a taluqdar. 'Brother' in Clause 6 of Act I of 1869 as amended by the United Provinces Act III of 1910 never refers to natural brother where there has been a valid adoption either by ceremony or by deed of adoption. Adoption, whether by ceremony or deed, must carry with it the consequences assigned to adoption by the personal law of the persons who are parties to the adoption, that is to say, Civil death of the adopted boy in the natural father and rebirth in the adoptive family. To hold otherwise would be to restrict the operation of a deed of adoption to that of a mere devise whereas the operation is clearly intended to be "wider and different.
21. Now the points essential to the decision are contained in the second part of the headnote and therefore the reference to Clauses 5 and 8 of the Act before the amendment in 1910, and to my mind, the observations of the learned Judge were mere obiter dicta. No question affecting the validity of any adoption was involved and it was not necessary for the decision of the case whether Clause 8 did or did not relate to Hindu taluqdars. The passage upon which reliance has been placed by the learned Counsel for the respondents in the judgment of their Lordships of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87 has already been quoted by me.
22. Mr. Dar, the learned Counsel for the defendant-appellant has, and to my mind successfully, attempted to reconcile the judgment of their Lordships in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87 with the decision of their Lordships in Maharajah Pertab Narain Singh v. Maharanee Subhaso Koer (76) 4 I.A. 228 and has sought to distinguish the former from the points involved in the present appeal. He argued that, having regard to all the clauses of Section 22, some of which were clauses of status and some of power, their Lordships only went to the extent of holding that an adopted son of a Hindu taluqdar by virtue of the status acquired by the concepts of personal law came within Clause 1 of Section 22 which was a clause of status. There was nothing in their Lordships' observation which would warrant an inference that the mode of conferring an authority which inter alia was the subject-matter of Clause 8 upon a widow making an adoption was excluded in its operation relating to Hindu taluqdars and therefore the authority in Maharajah Pertab Narain Singh v. Maharanee Subhaso Koer (76) 4 I.A. 228, was applicable to the present case which held that all the clauses in Section 22 were applicable to all taluqdars whether they were Hindus, Mahomedans or any other religion.
23. Having made good the first step in his argument, Mr. Dar next proceeded to argue that the Oudh Estates Act which is a special Act providing for a special class of persons and succession to a special class of property was not affected or controlled by a subsequent general Act such as the Registration Act. In support of this contention he relies upon the rules of construction of statutes to be found in text books and decided cases based upon the maxim, generalia specialibus non derogant. At page 321 of Craies on Statute Law the following passage occurs:
The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is special and the subsequent enactment is general, the general rule of law being as stated by Lord Selborne in Soward v. Vera Cruz that where there are general words in a later Act capable of 'reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation is indirectly repealed, altered, or derogated from, merely by force of general words without indication of particular intention to do so.' There is a well-known rule which has application to this case, which is, that the subsequent general Act does not affect a prior special Act by implication; That this is the law cannot be doubted and the cases on the subject will be found collected in the third edition of Maxwell on the Interpretation of Statutes.
24. It is therefore, argued that the Legislature while enacting the Oudh Estates Act of 1869 had considered the question of applying registration to a special class of persons with regard to certain transactions by that class and did in fact make the formality of registration applicable to such transactions as it intended to be affected thereby. The Act was, therefore, complete and self-contained. On this subject any subsequent Act of general application cannot, having regard to the rule of law, in any way affect, alter or control the provisions of the special Act.
25. Mr. Wasim has argued that unless it is shown that there is, repugnancy between the general Act and the prior special Act, or that the subsequent general Act by implication repealed or altered the Act, the principles laid down are not applicable to the present case inasmuch as the general Act, which is the Registration Act of 1871 or 1877, provides for a subject upon which the Oudh Estates Act is silent, that is to say, that the Oudh Estates Act nowhere specifically exempted the consent in writing from registration. It must, therefore, be hit by an Act which is applicable to the whole of India as the Registration Act is, and this would necessarily include even taluqdars. It is now to be seen whether there is any substance in the contention that the Oudh Estates Act is in fact silent on the subject of registration affecting transactions by the special class of persons governed by it.
26. A cursory examination of the Act will show that under Section 13, gifts and certain wills required to be registered. Under Section 17 the validity of a gift was made dependable upon registration of the deed of gift. Under Clause 5 an adoption by a taluqdar was only valid if the said adoption was by writing and attested in the manner required in the case of a will, and registered. So also under Clause 8 while nothing is said about consent in writing of her deceased husband, the adoption by a widow was to be in writing in the like manner as in Clause 5 and registered. It will, therefore, be seen that the Legislature had paid particular attention to the subject of registration, and it would indeed be inaccurate to say that the Act was silent on this particular topic. Having considered the question, manifestly the Legislature intended to exempt from registration such other documents which it did not specifically mention as requiring Registration. Maxwell on the Interpretation of Statutes, 8th edition at page 156 says:
Having already given its attention to the particular subject and provided for it the Legislature is reasonably presumed not to intend to alter the special provision by a subsequent general enactment unless that intention be manifested in explicit language or there be something that shows that the attention of the Legislature had been turned to the special Act and the general one was intended to embrace the special cases provided for by the previous one or there be; something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.
27. It is now to be seen whether by the application of the provisions of the Registration Act, of 1877, the provisions of the Oudh Estates Act are or are not altered or interfered with. Clause 8 of Section 22, Oudh Estates Act, says that the consent need only be in writing and if the Registration Act is not looked at, this authority will be good. Is there, therefore, any warrant to look to the general Act in order to invalidate something which would be good under the special Act?
28. According to the rules of construction, it is permissible to read into a special Act the entire provisions of a general Act provided that the rights and liabilities under the special Act are not affected or altered thereby, but it is not permissible to read the provisions of a general Act into a special Act, if by so doing it would have the effect of repealing or altering the latter or even rendering anything invalid which would otherwise be valid under the special Act.
29. It must be remembered that at the time of passing of the Oudh Estates Act 1 [I of 1869] rules relating to registration were in force in Oudh and the Legislature made so much of the law relating to registration then prevalent, applicable to it as it deemed necessary. It, therefore, cannot be said that the Act was silent on the subject or that the Legislature had not paid due regard to the subject of registration in regard to the taluqdars and their estates and consequently the invocation of a subsequent general Act was necessary or justified. A comparison of Section 17, Registration Act with Clause 8 of Section 22, Oudh Estates Act will show that the words in regard to registration are different. Sub-Section (3) of Section 17, Registration Act is as follows:
Authorities to adopt a son executed after the first day of January 1872 and not conferred by will shall also be registered.
30. Clause 8 of Section 22 is in the following terms,
and upon the death of such widow then to such son as the said widow shall with the consent in writing of her deceased husband, have adopted by writing executed and attested in manner required in case of a will and registered subject as aforesaid.
31. Clearly registration required by the general Act is of an instrument conferring authority while Clause 8 only requires that the deed of adoption should be registered but consent or authority need not be registered. The Registration Act clearly contemplates the registration of an authority to adopt by a Hindu, as a general law of adoption does not prevail among Mahomedans and other communities in India while under Clause 8 it embraces taluqdars of all communities. If the argument advanced by the learned Counsel for the plaintiffs-respondents was to prevail the result would be that the authority or consent in writing mentioned in Clause 8 would be hit by the Registration Act affecting Mahomedan and Christian taluqdars. This construction is wholly impossible. The right of adoption was for the first time conferred upon taluqdars belonging to the Mahomedan and other non-Hindu communities by the Oudh Estates Act and provided for the mode of adoption and the constitution of adopted son by Clauses 5 and 8 of Section 22. It is wholly inconceivable that the Legislature having made such provision as it deemed necessary should have intended to alter the law by passing a general Act without any specific reference to the class of persons who were already governed by the special Act. Had the Legislature intended the Registration Act to apply to Mahomedan or Christian taluqdars, it would have said so. Indeed, in the course of his arguments, Mr. Wasim was at one stage forced to admit that the Registration Act did not apply to Clause 8 so far as it affected Mahomodans.
32. On the other hand, the fact that the Legislature never intended that the Registration Act should apply to taluqdars is clear from what followed in the year 1910. In that year, the Oudh Estates Amending Act (3 [III] of 1910) enacted Clause 7 in place of the old Clause 8 of Section 22 and by way of a proviso to that clause enacted that after the expiration of six months from the commencement of this Act, such consent shall be expressed by means of a registered instrument or by means of a will or codicil and attested in the manner required by this Act. It has been argued with great force that if it had been thought that the Registration Act was applicable to the consent in writing required by the Oudh Estates Act, the Legislature would not have thought it necessary to alter the law in 1910. The argument to my mind is unanswerable. Mr. Wasim, however, has argued that the Legislature in the year 1910 was not making registration applicable to a consent in writing but was in fact making the law of registration more restricted and stringent with regard to taluqdars. He argues that under Sections 40 and 41, Registration Act, a will or authority to adopt could be presented for registration either by the donor, the donee, or the adoptive son himself and the Legislature in 1910 by adding the proviso to Clause 7 merely intended to make it compulsory that such power should be presented for registration by the donor himself. This argument is repelled by the language of the proviso to Clause 7 itself, for there it is said that
the consent shall be expressed by means of a registered instrument...executed and attested in the manner required by this Act.
The word "registered" in Section 2, Oudh Estates Act is defined as follows,
33. 'Registered' means,--
(a) in the case of a will registered according to the law for the time being in force relating to the registration of assurances, or deposited with a registrar according to the law for the time being in force relating to the deposit of wills, and
(b) in the case of any other instrument, registered according to the law for the time being in force and relating to the registration of assurances.
34. Therefore, the term 'registered' used in the proviso to Clause 7 as defined by Section 2 of the Act makes the registration applicable in accordance with the law for the time being in force which is the law as laid down by the Registration Act. Consequently, once the registration is relegated to the general Registration Act, all the provisions thereof will necessarily apply, including Sections 40 and 41, Registration Act. Accordingly the amendment in 1910 requiring registration of 'consent in writing' cannot be explained upon any hypothesis except that the Legislature thought it fit to make such writings subject to registration, and this it would not have done if it had been realized that the Registration Act was already applicable to an authority by a taluqdar. The evidence furnished by the amendment of the law in 1910 leaves no doubt in my mind that the consent in writing was not required to be registered and that the general Registration Act was never intended to be applicable to the class of persons specially governed by the Oudh Estates Act.
35. Our attention has been drawn to Section 16 of the old Oudh Estates Act as well as to new Section 16. Old Section 16 provides as follows:
No transfer of any estate, or of any portion thereof, or of any interest therein, made by a taluqdar or grantee, or by his heir or legatee under the provisions of this Act, shall be valid "unless made by an instrument in writing, singed by the transferor and attested by two or more witness.
It will be observed that the instrument of transfer is not required by this section to be registered. In Act 3 [III] 1910, Section 16 was reframed as follows:
No transfer, otherwise than by gift, of any estate, or of any portion thereof or of any interest therein, made by a taluqdar or grantee, or by his heir or legatee, or by a transferee mentioned in Section 14, or by his heir or legatee under the provisions of this Act shall be valid unless made by a registered instrument singed by the transferor and attested by two or more witnesses.
36. The learned Counsel for the defendant-appellant argues that here again the law of registration did not apply to transfers by a taluqdar until the year 1910 when the Legislature thinking it necessary to make registration applicable made provision for registration of such instruments by the new Amending Act. This is the strongest possible indication that the Oudh Estates Act was wholly independent of the general law relating to registration. Mr. Wasim has argued that it is inconceivable that any taluqdar could have transferred his estate or any portion thereof without registration. He seeks to explain the amendment to Section 16 on the ground that under the old Act, a taluqdar in the matter of transfer being governed by the general law could transfer property to the value of Rs. 100, without registration, and the new amendment was introduced in order to restrict the right of that class of people in making any transfer of immovable property, however small the value thereof, without registration. It is true that the language in which the new amendment is couched would have that effect but to my mind it is inconceivable that though the law allows an average man to transfer his property to the value of Rs. 100, without registration, taluqdars were intended to be deprived of that privilege and it was for this alone that the amendment was made. Mr. Wasim has relied on the case in Umrao Singh v. Lachman Singh (11) 38 I.A. 104 in support of his contention that transfers by a taluqdar were compulsorily registrable. I am, however, not satisfied that the authority cited really decides the question. The controversy in that case was whether a particular document was or was not of a testamentary nature. Their Lordships held that it was not a will but a family settlement and in their Lordships' view it was invalid for want of registration. In order, however, to appreciate the point involved brief facts of that case may be stated: One Kalka Baksh Singh the original taluqdar of Ramkot estate had three sons. It appears that ill-feeling sprang up between him and one of his sons, Prithipal Singh. Matters became so bad that Kalka Baksh Singh complained to the Deputy Commissioner against the conduct of Pirthipal Singh and subsequently lodged a formal complaint against him in the criminal Court. Matters, however, were settled between them by two friends of Kalka Baksh Singh and they eventually drew up the following document which they induced Kalka Baksh Singh to sign,:
This sanad is executed by me, Thakur Kalka Baksh Singh, taluqdar of Ramkot. For Prithipal Singh who is my son, I fix Rs. 300, annually so that he may maintain himself. Besides this, whatever I may give I will give equally to the three sons, except provisions, which they may take from my godown (Kothar). He may take six annas in the Kharif crop and ten annas in the Rabi crop out of my treasury (tahwil). The marriage and gauna expenses of the sons and daughters shall be borne by me. After me the three sons are to divide the property, movable and immovable. This has been settled through the mediation of Thakur Jod Singh of Bihat and Thakur Ratam Singh of Rojah.
37. The controversy in the case in India on this document was not whether it was a will, for the fact of the document being a will was not disputed in the pleadings. But in appeal to His Majesty in Council the matter was reconsidered and as the document was to take immediate effect in regard to some of its provisions, their Lordships held it not to be a will but a family settlement requiring registration. Mr. Wasin contends that as this family settlement contained an element of transfer of interest in immovable property, it was for that reason held to require registration and this clearly proved that in the view of their Lordships a transfer under Section 16, Oudh Estates Act, required registration. It must be stated at once that in the judgment of their Lordships no reference whatever is made to Section 16, Oudh Estates Act. Mr. Dar in reply has contended that it is not every transfer by a taluqdar which is not registrable and therefore the question is not affected by the decision of their Lordships. And he further contends that, that particular document not being a transfer for consideration must necessarily come within the category of gift, and as such it required registration even under the Oudh Estates Act. He has strongly urged that there is not a case extant which has held that a transfer under Section 16, Oudh Estates Act required registration before the Amending Act of 1910.
38. Another line of argument adopted by Mr. Dar is that assuming that Clause 1 of Section 22 governed the question of adoption, in order to give effect thereto, the clause must be re-framed in some such manner, "to the eldest son or to a son adopted under the Hindu law of such taluqdar, grantee, heir or legatee". He contends that if such words are read into the clause by implication, then it will be deemed that the entire Hindu law was embodied in the Oudh Estates Act as it stood in the year 1869 which was that a Hindu could confer an authority either by writing or orally or in any other manner which the Hindu law at that time recognized, and, on the principles of construction discussed elsewhere, a subsequent general Act cannot repeal or alter the law as incorporated in a special Act and, therefore, even in this view of the case no registration of any authority conferred in writing would be required in law. To hold otherwise would be a violation of the well established principles laid down in Vol. 31 of Halsbury's Laws of England and other authorities already cited. This contention of the learned Counsel is not without force.
39. Mr. Dar, the learned Counsel for the defendant-appellant has strongly relied on the case in Bhaiya Rabidat Singh v. Maharanee Indar Kunwar (88) 16 I.A. 53 for the proposition that Clause 8 of Section 22, Oudh Estates Act applied to Hindu taluqdars, and that the consent in writing mentioned in the said clause did not require registration. In that case the Maharani had made an adoption purporting to be by virtue of consent in writing from her husband. The validity of the adoption was challenged by a collateral of the late Maharaja of Balrampur on the ground that an authority to adopt a son executed after a particular date and not conferred by a will, was required to be registered. Their Lordships had already construed this document as being a will.--vide Maharani Inder Kunwar v. Maharani Jaipal Kunwar (87) 15 I.A. 127. Their Lordships in again construing the document in Bhaiya Rabidat Singh v. Maharanee Indar Kunwar (88) 16 I.A. 53adhered to their former opinion that it was a will. In dealing with the contention raised against the validity of the adoption, their Lordships delivered themselves of the following observations:
In the first place it was contended that the adoption was invalid, because the authority to adopt was not contained in a registered document. Their Lordships are of opinion that there is no ground for this contention. The Act of 1869 requires the writing by which an authority to adopt a son is exercised, to be registered. It also requires the authority to be in writing. But it does not require that waiting to be registered. Act 3 [III] of 1877, Section 17, which does require an authority to adopt a son to be registered, expressly excepts an authority conferred by will.
40. Now it is contended that their Lordships were of the opinion that an authority to adopt had to be in writing, by a taluqdar, and such authority need not be registered. Their Lordships were concerned with the case of a Hindu taluqdar and, therefore, it would be idle to contend that Clause 8 did not apply to Hindu taluqdars or that the consent in writing as contemplated by Clause 8 of Section 22 required registration. This contention must be accepted. The learned Counsel for the respondents has contended that the observations of their Lordships were mere obiter dicta as the document under consideration in that case had been held to be a will and their Lordships held it to be exempt from registration under Section 17, Registration Act. I am unable to accept this contention. Upon a proper construction of the observations of their Lordships, I am of opinion that their Lordships intended to hold, that on any view of the case whether the document fell under Clause 8 or not, it was exempt from registration. But assuming these observations to be mere obiter dicta, nevertheless they are binding upon us, in view of the fact that they laid down the law directly affecting the question now under consideration. I must, therefore, hold in agreement with Walford J. that the letters in dispute are not invalid for want of registration.
41. The learned Counsel for the plaintiffs-respondents has strongly relied, as already mentioned, upon my decision in Mata Bakhsh Singh v. Ajodhiya Bakhsh Singh A.I.R. 1936 Oudh 340 relying On Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87wherein I held that a Hindu taluqdar was governed by his personal law in matters of adoption and, therefore, an oral authority conferred upon a widow was not invalid merely because the provisions of Clause 8 of Section 22 had not been complied with, and I had also held that Section 22, Clause 8 was inapplicable to Hindu taluqdars. But now having regard to the argument advanced, and the fact that my attention was not drawn to the decision of their Lordships of the Privy Council in Maharajah Pertab Narain Singh v. Maharanee Subhaso Koer (76) 4 I.A. 228, I entertain serious doubt as to the correctness of that decision. Nor was Maharajah Pertab Narain Singh v. Maharanee Subhaso Koer (76) 4 I.A. 228 brought to the notice of Ashworth J. in Brijraj Chandra v. Subhadra Kuar A.I.R. 1926 Oudh 324.
42. The last remaining point to be considered is whether the question covered by issue 2(a) with regard to certain villages mentioned at Nos. 23, 24, 25, 26 and 29 in list B of the defendant's written statement are taluqdari properties. The learned trial Judge, as well as both the learned Judges of the Division Bench in appeal, have concurrently held that villages Bilaura, Khirpur, Pardumanpur and Dulwathar where non-taluqdari properties while village Cheolaha formed part of the taluqdari estate. Nothing has been urged before me to warrant my taking a different view. I, therefore, agree with the findings of the Court below.
43. The next question is what will be the effect of this finding upon the devolution of this property. On my finding that Vijai Kumar is the validly adopted son of Raja Chandra Shekhar, then it must be held that by implication of Clause 1 of Section 22 as interpreted by their Lordships of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87,-Vijai Kumar takes the place of a natural born son and therefore, the estate of the deceased Raja Chandra Shekhar whether taluqdari or otherwise must necessarily devolve upon him. Indeed the learned Counsel for the plaintiffs-respondents virtually conceded this position.
44. For the reasons given above, and in agreement with Walford J. I allow the appeal, set aside the decree passed in favour of the plaintiffs-respondents, and dismiss the suit with costs throughout.
Ghulam Hasan J.
45. After hearing able arguments on both sides once again I am unable to depart from the view expressed in my judgment dated 18-2-1946.
46. Upon the first question, which is one of pure fact, it is not necessary to dilate much, but a few observations appear to be called for in view of the arguments addressed to us on behalf of the appellant. It is conceded that the burden of proof that the disputed letters are proved to be genuine lies upon the appellant propounding them. Admittedly there is no direct evidence of witnesses who saw Raja Chandra Shekhar write the disputed letters and the case rests upon the evidence of the two witnesses Swami Ramapati Ashram (D.W. 2) and Daya Shankar (D.W. 4) who from their past acquaintance with the handwriting of the Raja give it as their opinion that the letters are in his handwriting. This evidence is the result as it were of mental comparison and, according to recognised authority, is of an inconclusive character. Osborne, a great authority on questioned documents says in his book "The Problem of Proof":
In the interests of justice it should be better known that about the weakest and most inconclusive testimony that is ever presented in a Court of law is the usual opinion testimony of lay witnesses regarding handwriting." (Page 462). "It is possible for an occasional lay witness to become familiar with a particular signature by seeing it often and under conditions that enable the observer to gain a knowledge of its features and qualities. But even this knowledge in almost every case covers only an acquaintance with the general appearance of the signature as a whole. As every imitation takes on some elements of this general appearance, and a tracing, if well made, very closely approximates the general appearance of the genuine model from which it was traced, a dependence on general appearance alone on which to base an opinion that a signature is genuine is always dangerous." (Pages 465 and 466)
47. It is laid down in Halsbury's Laws of England, Volume 13, at page 606, para. 673 as follows:
Whilst evidence of opinion or belief is admitted for the purpose of proving handwriting where direct evidence of one who was present when the document was written is not available, an opinion based on mere inference is insufficient.
48. In Dal Bahadur Singh v. Bijai Bahadur MANU/PR/0234/1929 the husband died in 1860 and his widow adopted a son in 1914 on a verbal authority given to her by the husband. Their Lordships in negativing the authority held that a very grave and serious onus rests upon the person who seeks to displace the natural succession by alleging an adoption and in such a case the proof requires strict and almost severe scrutiny. (vide MANU/PR/0234/1929.)
49. A somewhat similar test was applied by the Privy Council to proof of adoption in Padmalav Achariya v. Fakira Debya MANU/PR/0024/1931. The headnote accurately brings out the point:
The factum of adoption must be established by clear and satisfactory evidence. The necessity is all the greater in the absence of any contemporary record of the adoptions either in a deed of adoption or by entries in the family accounts. In no case should the rights of wives and daughters be transferred to strangers or more remote relatives unless the proof of adoption, by which the transfer is effected, be proved free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubt of its truth.
50. Apart from the criticism to which this evidence has already been subjected, it has no value as both the witnesses admit that they could not identify his signature unless they read the whole document through. (see page 44, line 32 and page 60 line 33 of the printed record, part I and II). Both these witnesses gave affidavits before the Deputy Commissioner in 1931. Ramapati Ashram admitted that he swore the affidavit before examining the letters. (See page 35 lines 4-10). The affidavit had been prepared by Babu Gopi Nath five or six days before it was sworn before the Deputy Commissioner. The witness copied it from the draft and swore it before the Deputy Commissioner. The other witness Daya Shankar says he faired out the affidavit on a stamped paper from the note dictated to him by Babu Gopi Nath on the same day. He adds that he had seen the letters before the arrival of the Deputy Commissioner. The letters purport to have been written in 1889. The witnesses swore for the first time in 1931. Admittedly they were not written in their presence and, in view of the character and past antecedents of these witnesses it is impossible to rely on them in proof of the handwriting. The witnesses, though competent under the law of Evidence to give opinion evidence as to the handwriting of the Raja are not in my judgment truthful or reliable witnesses.
51. There is no room for applying the presumption under Section 90, Evidence Act. As the evidence of the witnesses in support of the hand writing cannot be accepted as it is untrustworthy and open to grave suspicion the presumption about their genuineness because they are 30 years old and have been produced from proper custody cannot be made.
52. Intrinsic evidence to be found in the contents of the disputed letters casts considerable doubt on their genuineness. [After considering the evidence and holding the disputed letters not to be genuine his Lordship proceeded:]
53. As regards the question of law, it has been contended for the appellant that Clause (8) of Section 22 of the old Act applies to all taluqdars irrespective of their religion, that it is not confined to non-Hindus and is wholly independent of the Registration Act. Assuming that Clause (8) exclusively applies to non-Hindus and a Hindu adopted son comes under Clause (1), it is further contended that just as the Indian Registration Act does not control Clause (8) in the same way it does not control Clause (1) and the consent of the husband in writing does not require to be registered. I have dealt sufficiently with the first point already and in my opinion it is concluded by the authority of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87. That view has been followed in this Court by Pullan J. and the Hon'ble Sir George Thomas, C.J. and the appellant has not succeeded in displacing that view. It follows, therefore, that Clause (8) applies to Mahomedans and Clause (1) applies to a Hindu adopted son.
54. Once it is held that a Hindu adopted son comes under Clause (1), it follows that we must look to that clause alone for determining whether the authority to adopt a Hindu requires registration. The word "son" in Clause (1) includes an adopted son where the personal law permits of adoption. This is borne out by the definition of "son" in the General Clauses Act. This view was emphasised by Ashworth J. in the first Sissendi case Raghuraj Chandra v. Subhadra Kunwar A.I.R. 1928 P.C. 87 and was accepted by the Privy Council. The view that personal law should govern the matter has been re-affirmed in the Gangwal case. (See Jadunath Kuar v. Bisheshar Bakhsh Singh MANU/PR/0013/1932) The question arising in that case was: who was a 'male agnate' under Clause (10) of Section 22, Oudh Estates Act and it was held that the meaning was to be ascertained by the personal law of the individual to whom succession is claimed. Clause (11) of Section 22 and Section 23 both use the words "ordinary law" Now "ordinary law" means personal law as modified or altered by custom or by statute. Any Act of Legislature which has the effect of altering any rule of Hindu or Mahomedan Law becomes a part of the ordinary law of the Hindu or the Mahomedan as the case may be. When Act 1 [I] of 1869 was passed the ordinary law in the case of a Hindu was the Hindu Law as administered at that time. That law admittedly did not require an authority to adopt to be registered. Subsequently, however, when Act No. 8 [VIII] of 1871 (Registration Act) came into force it made the authority to adopt compulsorily registrable. The Registration Act of 1871, therefore became a part of the personal law of the Hindus. Any authority which was not registered in accordance with the provision of the Registration Act of 1871 was ineffective and no adoption made in pursuance thereof was valid. A Hindu adopted by a widow under an authority which is unregistered does not acquire the status of an adopted son and therefore does not divest the widow of possession of the property of her husband. The cases in Jagannatha Bheema Deo v. Kunja Behari Deo A.I.R. 1922 P.C. 162 and K. Vijayaratnam v. M. Sudarsana Rao MANU/PR/0027/1925 bear this out.
55. It cannot be denied that a Hindu can authorise his widow to adopt verbally or in writing under the provisions of the Hindu Law. Under that law an adoption made in virtue of an oral authority was valid. The appellant's contention is that Clause (8) lays down a complete procedure for adoption and one cannot go outside the purview of that clause and apply the provisions of the Registration Act to such an authority. If the adopted son comes under Clause (1), it is obvious that he is excluded by clauses (5) and (8). Clause (1) does not lay down any procedure for adoption by a Hindu taluqdar. It merely confers a status and lays down a rule of succession for the son or the adopted son to succeed to the property of a taluqdar but in order to ascertain how such an adoption should be made and in what manner should the authority be conferred, it is left entirely to the personal law. That law unlike the Oudh Estates Act permits a Hindu to confer an oral authority upon his widow or a written authority if he so chooses. Once he gives a written authority, the Registration Act which is a part of the personal law of the Hindu shall control it. Take a simple instance. If the Legislature by an Act makes all Hindu marriages compulsorily registrable, it is obvious that if the marriage is not registered not only the marriage will be invalid but the issue of the marriage would have no legal status at all. A son born of an unregistered union between the parents would not be a son within the meaning of Clause (1) of the Act and would have, therefore, no legal rights.
56. It was contended for the first time before us that personal law must be confined to the law which existed in 1869 when the Oudh Estates Act was passed. This contention appears to me to be unsound. Personal law of the Hindu or the Mohamedan means the law as administered in British India. There are statutory enactments passed by the Legislature from time to time and unless there is an exemption made in favour of any particular class of people they must be held to apply to all irrespective of caste or creed. Personal law must, therefore, be held to include not only the law which prevailed at the time when the Oudh Estates Act was passed but the law which prevailed at the time of the dispute. A reference to the local extent of the Registration Act will show that the Registration Act applies to the whole of British India without any exception or reservation for any class of people. (Section 1 of Act 8 [VIII] of 1871).
57. The second branch of the argument that Clause (8) merely requires the formality of a writing but does not require registration raises a question which is strictly not germane to the enquiry before us but I am unable to accept this contention either. It is urged that the said clause is a complete code of adoption in itself, that it prescribes the formality of writing for the consent and no more but makes the registration of the deed alone by which that authority is exercised obligatory. It must be remembered that there was no Registration Act in force when Act l[I] of 1869 was passed and the authority to adopt did not then require registration. The registration of that authority was made compulsory by the subsequent Act of 1871. Section 16, Oudh Estates Act does not prescribe the formality of the registration for a transfer. The Registration Act of 1871, however, will apply to all instruments which could be governed by Section 16, the reason being that the Act applies to the whole of British India. The Legislature must be presumed to know that the Oudh Estates Act did not lay down the formality of registration in the case of certain instruments. If the intention of the Legislature was to exempt such instruments from registration such an exception could easily have been made in 1871 when the Registration Act was passed.
58. It has been argued with considerable emphasis for the appellant that a general Act cannot repeal or alter or derogate from the provisions of the special Act and there being a provision in the special Act, i.e., that Clause (8) requires an authority to be in writing but not to be registered and Clause (1) makes no mention of registration the Registration Act will not apply to the Oudh Estates Act. The maxim of generalia specialibus non derogant is invoked. The passage in Maxwell's Interpretation of Statutes at p. 156, Section 3 does not advance the appellant's case:
Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation...that earlier and special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general words without any indication of a particular intention to do so.
The words "subject specially dealt with by earlier legislation" are important. The question as to what formalities are required before a Hindu can give authority to his widow to adopt a son coming under Clause 1 of Section 22 is not dealt with by the Oudh Estates Act. According to the same authority at p. 160.
But if there be in the Act or in its history something showing that the attention of the Legislature had been turned to the earlier special Act and that it intended to include the special cases within the general Act, or something in the nature of either Act to render it unlikely that any exception was intended in favour of the special Act, the maxim under consideration ceases to be applicable.
No question, therefore, of altering that Act arises nor does any question of incorporation of the special Act into the general Act arise.
59. Learned Counsel also refers to Craies on Statute Law, at pp. 321 and 322 to the effect that a subsequent general Act does not refer to a prior special Act by implication unless there is a clear intention to do so. At p. 324, however, it is pointed out that the rule must not be pressed too far and it is laid down that if the provisions of the two Acts are absolutely repugnant and inconsistent with one another, the Courts have no alternative but to declare the prior special enactment repealed by the subsequent general Act.
60. Lastly it was contended that the letters Exs. A-189 and A-191 do not come within the mischief of the Registration Act for the reason that Ex. A-189 confers a joint authority and is therefore bad in law; Ex. A-191 merely confirms the authority conferred in Ex-A-190 and therefore does not confer any express authority for the first time but merely acknowledges an authority made previously. It is urged that Ex. A-190 is the only letter which can be regarded as an authority to adopt. This letter, according to the appellant's learned Counsel was written for the purpose of the Taluqdari Act and his immediate object was to comply with the Taluqdari Act and not confer an authority under the Registration Act. In other words, the taluqdar did not know at that time and as he wrote it under a mistaken belief the document would not operate as an express authority to adopt but it is admissible in evidence as an implied authority to adopt. Reliance is placed on Mulla's Hindu Law, p. 518, para. 452(2), Seetharamamma v. SuryanarayanaA.I.R. 1926 Mad. 1184 and Balsubrahmanya v. Subbayya Tevar MANU/PR/0022/1937. This argument was not put forward either before the trial Court or before the Divisional Bench. I am of opinion that this contention is not sound. The passage in Mulla's Hindu Law is to the following effects:
In Bengal, Benares and Madras a widow may adopt under an authority from her husband in that behalf. Such authority may be express or implied. It cannot be implied from the mere absence of a prohibition to adopt.
This is founded upon the decision of the Privy Council just referred to above. There is however a passage in Gupta's Hindu Law (1945 Edn.) at p. 939 which runs thus:
28. In Bengal and Benares a widow may adopt only with the positive authority from her husband and consequently the authority must be express. In Madras and Bombay on the other hand, it need not be positive; it may be either express or implied, though, it cannot be implied from a mere absence of prohibition. In fact in Bombay the assent of the husband to the meritorious act of adoption is to be implied wherever the husband has not forbidden it.
Reference is made to Collector of Madura v. Mutu Ramalinga Sathupathy (68) 12 M.I.A. 397 and Motising v. Mt. Durgabai A.I.R. 1929 Bom. 57 for the respondent.
61. The case in Seetharamamma v. Suryanarayana A.I.R. 1926 Mad. 1184 was a case under the law prevalent in Madras. In that case the adopted boy had been brought to the house of the adoptive father on 1-6-1916 for the purpose of adoption. The date fixed for adoption was 16th June and in the meantime all the terms in contemplation for the adoption had been settled. On 10th June, however, the adoptive father died. On 24th June the boy was adopted by the widow and the question was whether the implied authority to adopt could be inferred. The evidence that oral authority was given by the husband was disbelieved and the question arose whether the husband's conduct could lead to the inference that he gave an implied authority to his wife. The passage in Collector of Madura v. Mutu Ramalinga Sathupathy (68) 12 M.I.A. 397 was interpreted to mean that under the Mahratta School an assent can be assumed where the husband has not intimated his prohibition while in Bengal and Southern India there must be positive or affirmative consent given by the husband. The word "express consent" used in the Privy Council decision was thus explained away. The adoption was held valid.
62. The decision in Balsubrahmanya v. Subbayya Tevar MANU/PR/0022/1937 was also from Madras. The dispute in that case was between the adopted son and the nearest sapindas of the last male holder who denied the validity of the adoption. In that case the child adopted by the husband died in his infancy. The husband had associated his wife in this adoption. After his death, the widow made a second adoption and it was held that no implied authority could be inferred and in order to constitute an implied authority there must be circumstantial evidence of a cogent character. In the course of the judgment their Lordships remarked:
There is nothing to show that the husband ever contemplated a second adoption or that he was prepared to leave the selection of another boy to his wife. Their Lordships are not laying down that the requisite authority must necessarily be express, but they agree with the District Judge that in order to constitute an implied authority there must be circumstantial evidence of a cogent character....
63. This observation which is applicable to the law in Madras does not decide the point arising before us. In Motising v. Mt. Durgabai A.I.R. 1929 Bom. 57 it was held that under the Benares School of Hindu Law, express authority by the husband is essential for the validity of an adoption by the widow.
64. Apart from authority, it seems to me that it is not possible to construe implied authority in the present case. Exhibit A-190 does confer an express authority by common consent, but if it fails on the ground that it is not registered, it cannot be looked at for the purpose of inferring implied authority and confessedly there is no other evidence apart from the letters circumstantial or otherwise which may lead to the inference that the implied authority was conferred. Accordingly, I would dismiss the appeal with costs.
Walford, J.
65. As a member of the Full Bench, I have again heard the appeal, and nothing has been advanced, on behalf of the plaintiff-respondents which would induce me to alter the opinion I have already expressed. In fact on hearing the elaborate arguments advanced by the appellant, which have been in some respects on new lines from those advanced before the Divisional Bench I am more than ever convinced that the view I took is correct. I, therefore, adhere to the decision given by me in the appeal, and hold that Exs. A-189, A-190 and A-191 are genuine documents whereby Raja Chandra Shekhar gave his consent to Rani Subhadra Kunwar to make an adoption after his death and that in law these documents were not required to be registered.
66. I would therefore allow the appeal, set aside the decree passed by the learned Civil Judge and dismiss the suit with costs throughout. Two clerical errors have been brought to my notice in my judgment on p. 448 of the printed record. The first of these to be found is at line 10 wherein I said "son of Raja Kashi Prasad." This ought to have been "son of Raja Chandra Shekhar." Again at line 21 in the concluding portion the words occur "and decree the suit.": the words should have been "and dismiss the suit." Let these errors be corrected.
67. The majority opinion is that the appeal be allowed and the suit dismissed with costs. We, therefore, allow the appeal, set aside the decree of the lower Court and dismiss the suit with costs throughout.
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