MEE UMMAL V. a valid and good instrument. The arguments, there- 1856. fore, of the Appellant that it is not recognizable NAGALUTCHunder the provisions of Regulation V. of 1829, cannot be sustained." The Court, for the above reasons, affirmed the decree of the Civil Court, and dismissed the appeal with costs. The Appellant afterwards presented petitions for review of judgment, and also for security from the Respondents for the mesne profits pending the suit, which the Sudder Court refused to entertain. From the decree of the 27th of November, 1851, the Appellant appealed to Her Majesty in Council. GOPOO NADARAJA CHETTY. 1854.* After the arrival of the transcript in England, the 30th Nov., Appellant presented a petition under the provisions of Madras Reg. VIII. of 1818, sec. 4, for an Order calling upon the Respondents to give security for the mesne profits, or, in the event of the Respondents not giving security, that the Appellant might be put in possession upon giving security, or in the alternative that the property might be attached pending the appeal. The petition, after stating that the Appellant had applied to the Sudder Dewanny Court, that pending the appeal, the Respondents might be required to give security, as prescribed by the 4th section of Mad. Reg. VIII. of 1818, and setting forth the Circular Order of 1826, which the Court refused, as they were of opinion that the provisions of that Regulation did not apply to the case; alleged that as considerable time must necessarily elapse before judg *Present Members of the Judicial Committee,-The Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, the Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, and the Right Hon. the Lord Justice Turner. V. GOPOO NADARAJA CHETTY. 1856. ment could be obtained upon the pending appeal, the NAGALUTCH- Appellant had reason to fear, that unless security MEE UMMAL was directed to be given by the Respondents, the Appellant would be unable to reap the benefit of Her Majesty's decision, if in her favour, the Respondents having already, as the Appellant was informed and believed, mortgaged part of the estate, though they were still in possession of the greater portion of the same and the Appellant prayed that the Respondents might be ordered, within six weeks from the service of an order to that effect upon such of the Respondents as should be in possession of the property in dispute, to give full and sufficient security, in accordance with the above Regulation and Circular Order; and that the calculation upon such Order might be made from the date of the property coming into possession of the Respondents, and that the Appellant might have leave to come in at the beginning of each succeeding year and demand additional security for the net proceeds of the past year, or, in the event of the Respondents not giving the required security within the period prescribed, that the property might be given over to the Appellant, pending the appeal, upon her giving such security, or, in default of the Appellant giving security within the like period of six weeks from the date of the expiration of the period to be assigned to the Respondents for giving their security, then that the estates might be attached, pending the appeal. Mr. E. J. Lloyd, Q.C., and Mr. Coryton, in support of the petition. The present application, though novel in its nature, is founded upon the case of Rajah Vassareddy Lutch mcputty Naidoo (a), where the mischief now sought 1856. to be averted occurred, the property, pendente lite, NAGALUTCHbeing sold and the mesne profits lost. The refusal of MEE UMMAL the Sudder Court to exercise the discretion conferred on the Court by Mad. Reg. VIII. of 1818, sec. 4, will operate most prejudicially to the Appellant in the event of the decree being reversed, as no security for the mesne profits have been given.-[The Lord Justice Knight Bruce: Does that Regulation apply in this case? The Respondents were put in possession by the Collector, not by the Court.]-We submit that the Judicial Committee, under this Regulation, in its ministerial, if not in its judicial character, has power to make the order sought for. The Lord Justice KNIGHT BRUCE: The Regulation under which this application is founded does not, in their Lordships' opinion, apply to the present case, and, therefore, it will not be necessary to decide whether they have such a discretion as the Appellant concludes we possess, of directing securities to be furnished by the Respondents. There is, in fact, no allegation in the petition that the Respondents have committed or are committing waste, only a rumour of a mortgage of part of the estate. The case of Rajah Vassareddy Lutchmeputty Naidoo has nothing to do with such an application as this, as their Lordships in that case only ordered their decree to be effectually carried into effect by the Court in India. The appeal now came on for hearing. (a) 5 Moore's Ind. App. Cases, 300. υ. GOPOO NADARAJA CHETTY. 1856. NAGALUTCH- v. GOPOO Sir Frederic Thesiger, Q. C., Mr. E. J. Lloyd, Two questions are involved in this case; first, wheNADARAJA ther Appacooly Jyen gave the Appellant authority to CHETTY. adopt a son in the event which happened; and, secondly, whether the Will and Codicil set up by the Respondents are valid and legal instruments. First. The presumption is strongly in favour of the supposition that Appacooty Jyen, being without a son, authorized the Appellant, his widow, to adopt one from their family in the event of the child of which she was then pregnant being a female, his spiritual welfare depending upon his being represented by a son, Huradhun Mookurjia v. Muthoranath Mookurjia (a). This necessity is strongly shown by writers of the highest authority in India, 1 Strange's "Hindu Law," pp. 7, 73, 76 (2nd Edit.), 1 W. II. Macnaghten's "Hindu Law," p. 63, Inst. of Menu, ch. IX., pl. 107, Daya Bhaga, ch. XI., s. 1, pl. 31, F. Macnaghten's "Cons. on Hindoo Law," p. 176, 3 Colebrooke's "Dig. of Hindu Law," pp. 294, 5, Crastnarao Wassadewji v. Ragunath Harichandarji (b). The verbal authorization of the Appellant by her husband, which is sufficient, 1 Strange's "Hindu Law," p. 93, to adopt a son, is proved by the evidence of three witnesses, and the admission of that fact by the Respondents themselves in the exhibits. filed. They even admit that they urged the Appellant to exercise the power so conferred on her. Upon the adoption taking place, the child becomes heir of the deceased, and the widow's title to her (a) 4 Moore's Ind. App. Cases, 414. As MEE UMMAL V. husband's estate merges into that of guardian of the 1856. child, 2 Strange's "Hindu Law," p. 127, Dhurm Das NAGALUTCHPandey v. Mussumat Shama Soondri Dibiah (a). power had been given to the widow to adopt a son, Appacooty Jyen was, by the Hindoo law, incompetent to make any testamentary disposition. Second. Neither the factum of the Will and Codicil, nor the mental capacity of the Testator, are sufficiently established by the evidence. The witnesses prove that the state of his health was such as to affect his mind, rendering him incapable of exercising testamentary power at the very time when it is alleged he executed these instruments; he, at that time, being in a state of delirium and insensibility. In such a condition, even if he executed the Will and Codicil, he must have been under such influence as would make the instruments void if to the prejudice of the Appellant. Decisive proof of the complete absence of influence and excitement must be proved, Dodge v. Meech (b), Cartwright v. Cartwright (c), Instit. lib. 2, tit. 12, sec. 2. The evidence of the execution by the Respondents' witnesses, moreover, is contradictory and inconclusive and considering the facility of obtaining evidence, and the value of Hindoo testimony, is quite unworthy of credit. Three only of the attesting witnesses are produced, and their testimony, which is contradictory in itself, fails to establish the validity of these documents; the Appellant's witnesses depose to these papers being forgeries. The onus probandi undoubtedly lies upon the Respondents, who set up these instruments. Assuming, however, that the Will and Codicil were (a) 3 Moore's Ind. App. Cases, 229. (b) 3 Hagg. Ecc. Rep. 620. (e) 1 Phill. Ecc. Rep. 99. GOPOO NADARAJA CHETTY. |