SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF SOUTH CANARA Vs. SANTARAJA SHETTY ALIAS BOJAPPARASA BINNANI

JUDGEMENT

(1.) This is an appeal arising out of the claim of the Secretary of State for India in Council that a decree may be passed ordering the defendant to make over to him the properties mentioned in the Schedules A and B annexed to the plaint and for payments of mesne profits of the immoveable properties mentioned therein from 1900 to the 31st March 1909. The claim was made on the footing that the last owner of these properties, one Chandranna alias Pandyapparasa Binnani (to whom we shall refer hereafter as the deceased ) died without leaving any heirs and that, according to the law and custom applicable to his estate, the whole of it escheated to the. Government.

(2.) The learned Subordinate Judge who tried the case came to the conclusion that the defendant had established that the deceased did not die without leaving any heirs, and that the defendant was his heir and was entitled to succeed to his property. The decision of this point depends upon the determination of two questions viz., first, whether or not the defendant had validly been adopted by the deceased into his tarwad and secondly, if not, whether the defendant is entitled to succeed to the deceased as legatee under a document which is Exhibit II on the record.

(3.) The validity of the adoption of the deceased is attacked by the plaintift, who is the appellant, on the ground, first, that it is against the Aliyasantana law, and custom which have the force of law in the community to which the deceased belonged, to adopt solely a male, i. e., to take into adoption a male without also simultaneously taking a female into adoption, and secondly, that, in any case the defendant could not have been adopted by the deceased because the defendant was the son of the deceased by natural descent, and according, to Aliyasantana law and custom, it is necessary that the person adopted should belong to the same bali as the person adopting, whereas a father and son must necessarily belong to different balis. The learned Advocate-General, who argued the. case on behalf of the appellant, relied, in the first instance, on what had been referred to before us as Bhutala Pandya s Aliyasantana Kattukattilagalu which he said, was a code promulgated by Bhutala Pandya, a former ruler of Canara and which was well recognised as an authoritative source of Aliyasantana Law. On behalf of the respondent it was contended that this so called code is a spurious treatise of a date much more recent than it purports to be and is neither recognised as laying down correctly the Aliyasantana Law as it prevails at the present time nor does it, as a matter of fact, so lay it down. No evidence either oral or documentary, was given in the Lower Court on this point, but the learned Advocate-General relied on the fact that this treatise had frequently been referred to by the Courts, and his argument, in effect, was that, without any proof being given of this treatise being a book of authority, binding on the parties and recognised as such by the community we could take judicial notice of its contents and binding force. It is true that books purporting to contain the laws and customs of any particular community may acquire by being repeatedly proved in the court, such a status as to make it unnecessary in any subsequent case for persons of that community to prove anew the authority or the binding force of the books in question. But it seems to us that unless such a state of circumstances is brought about, books of this nature stand on the same footing as any other evidence tending to prove the existence of a body of customs. Hence to admit this book into evidence without specific proof in the proceedings before us would be to take judicial notice both of its binding force and of all the customs referred to therein. Now custom must be proved in each particular case, and even proof in one or two cases will not dispense with the necessity of its being proved in a subsequent case. See Be Parker Exparte Turguand (1884) 14 Q.B.D. 636 at 645 Southwell v. Bowditch (1876) 1 C.P.D 374, Moult v. Halliday(1898) 1 Q.B. 125. But, when we turn to the judgments of this Court in which Buthala Pandia s code has been referred to, we find that during recent years, that is, at least after the criticism of Dr. Burnell questioning its genuineness, the Courts have always expressed doubts as to whether it is a reliable document or not. The learned pleader for the respondent contended that the criticisms contained against this document in Koragu v. The Queen (1883) I.L.R. 6 M. 374 at 379, Antamma v. Kaveri (1884) I.L.R. 7 M. 575 at 577 and Devu v. Deyi (1885) I.L.R. 8 M. 353 at 386 are such as to establish that this book is not a book of authority. It seems to us that it is unnecessary for us to express an opinion on the broad point whether this book . is authoritative or not. It is enough to say that there is no material before us on which we can hold either that this book has been proved for the purpose of the proceedings between these parties, or that this book has so often been proved before to be genuine and authoritative that we may take judicial notice of its contents and binding force.