Judgement Appeal from a decree of the Court of the Judicial Commissioner (February 26, 1908) confirming a decree of the Subordinate Judge of Gonda (January 3, 1905). The facts were shortly as follows. Maharajah Sir Digbijai Singh of Balrampur (hereinafter called the Maharajah), a Hindu of the Junwar Kshatriya caste, had relations with a Mahomedan woman by whom he had a son, born in 1846, named Jang Bahadur Singh (hereinafter referred to as Jang Bahadur). The Maharajah brought up Jang Bahadur as a Hindu, and it appeared from the evidence that after the latter was able to make a choice he lived as a Hindu and was throughout his life a follower of the popular idolatrous form of Hinduism. As the result of the evidence given at the trial, their Lordships found that he did his utmost to become an orthodox Hindu, and to pass as such in the society in which he lived. The Maharajah procured for Jang Bahadur a marriage with a Hindu lady of the Kumar Kshatriya caste, named Hansraj Kunwar, and after her death a marriage with another lady of the same caste. The children of these marriages married members of that caste. The evidence of several witnesses, members of the Kshatriya caste, was called at the trial to shew that Jang Bahadur was not recognized as a member of the caste. This evidence and its effect are referred to at length in the judgment. By the first of these marriages Jang Bahadur had one son, born in 1871, Bhaiya Ganga Bakhsh Singh, who was the first respondent (defendant). Jang Bahadur had also four sons by a Mahomedan woman. The eldest of these sons, Bhaiya Sher Bahadur, was born before 1871 and was the appellant (plaintiff). Both Courts in India found that no ceremony of marriage took place between Jang Bahadur and the mother of the appellant. The Maharajah died in 1882. By a testamentary document made in 1878 and described as a codicil, after reciting that he had an illegitimate son, Jang Bahadur, for whom he was anxious to make provision, and that " a property should be determined for Jang Bahadur Singh and his issues (aulad) for generation after generation," it was provided as follows " Rs.48,000 per annum shall be continued to be paid by the proprietor of the riasat .... and that amount shall be paid to Jang Bahadur Singh and his issues (aulad) for generation after generation as long as the family (khandan) of Jang Bahadur Singh and his issues (aulad) remain in existence .... For his lifetime Jang Bahadur Singh has a right to spend this money, but after his death from among his issues (aulad) one person to whom the right may go, shall be con sidered proprietor of this maintenance allowance, without division, as a rais." The codicil allocated certain villages to meet these payments and provided that Jang Bahadur and his family descendants should have no power to alienate the, property, but they should " continue in perpetuity to hold possession over the said villages." This codicil is fully set out in the judgment of their Lordships. In 1899 Jang Bahadur died, and the first respondent, his son by the Kshatriya lady, took possession of the whole of his property, which consisted of the villages above referred to as allocated by the codicil and other movable and immovable property which Jang Bahadur had acquired. On April 3, 1902, the appellant commenced the present suit in the Court of the Subordinate Judge of Gonda against the first respondent, joining also as defendants his three younger brothers and Jang Bahadurs second Hindu wife, who survived. By his plaint he alleged —(1.) that Jang Bahadur was born a Mahomedan and lived and died a Sunni Mahomedan, and that the law which governed succession to his estate was the . Mahomedan law of the Sunni school ; (2.) that the plaintiff and his brothers were legitimate sons of Jang Bahadur, who was lawfully married to their Mahomedan mother, and that the first defendant was illegitimate, since Jang Bahadur as a Mahomedan could not lawfully marry a Hindu; (3.) that according to the terms of the codicil and the custom of primogeniture which obtained amongst the raises of Balrampur, the plaintiff was entitled to succeed to the exclusion of his uterine brothers; (4.) that if the first defendant was legitimate the plaintiff as eldest son was entitled to succeed ; (5.) that even if the plaintiff was illegitimate and the first defendant legitimate, the plaintiff was entitled by the terms of the codicil and by the custom of primogeniture. Alternatively he claimed a decree for possession of a fourth part of the estate, or as much as he should be held legally entitled to by division or partition. The first defendant by his written statement denied that Jang Bahadur was born a Mahomedan or lived and died a Mahomedan, or that Mahomedan law governed the succession, and he denied that the plaintiff and his brothers were legitimate sons of Jang Bahadur. He further pleaded —(1.) that Jang Bahadur was born a Hindu, was brought up as a Hindu by his father, and was throughout his life a consistent follower of Hinduism, and that the succession was governed by Hindu law; (2.) that the first defendant was the son of Jang Bahadur by Hansraj Kunwar, who was married to him according to Hindu shastras, and that he (the first defendant) was Jang Bahadurs sole heir and exclusively entitled to the property in suit both under Hindu law and the codicil. The plaintiffs brothers supported the plaintiffs claim but contended that they were entitled to share the property equally with him to the exclusion of the first defendant. The hearing of the suit extended, with intervals, from August, 1903, to July, 1904, more than 100 witnesses being examined and a great deal of documentary evidence being recorded. The Subordinate Judge delivered judgment on January 3, 1905. He held that Jang Bahadur was, according to Mahomedan law, a Mahomedan by birth and should be presumed to have been a Mahomedan until he was able to make a choice ; but upon an exhaustive examination of the evidence he found that Jang Bahadur never professed the Mahomedan religion and was never in fact a Mahomedan, but on the contrary that he was brought up as a Hindu and was throughout his life a follower of the popular form of the Hindu religion ; he also found that the plaintiff and defendants 2, 3, and 4 were illegitimate. He held that the succession was not regulated by Mahomedan law, since Jang Bahadur was not a Mahomedan, nor by Hindu law, since he was not born a Hindu, nor yet by the Indian Succession Act, but was governed by the rule of justice, equity, and good conscience, under s. 3 (g) of the Oudh Act (Act XVIII. of 1876). He held that the succession was not regulated by Mahomedan law, since Jang Bahadur was not a Mahomedan, nor by Hindu law, since he was not born a Hindu, nor yet by the Indian Succession Act, but was governed by the rule of justice, equity, and good conscience, under s. 3 (g) of the Oudh Act (Act XVIII. of 1876). Dealing with the contention that the Maharajah could not have entertained the "notion of accomplishing the impossible task of making a Hindu of a non-Hindu," the learned judge said " The contention in my opinion is based upon a mistaken notion that Hinduism is rigidly exclusive and does not under any circumstances admit within its fold one who is not born a Hindu." On this point he referred to Sir M. Monier-Williams Religious Thought and Life i India, pt. i., p. 57 ; Sir Alfred Lyalls Asiatic Studies, pp. 101 and 104 ; W. J. Wilkins Modern Hinduism, p. 177 ; and Carnegys Notes on the Races, Tribes and Castes of Avadh, 1868, p. 50. He summed up his view of the case in the following passage —" Jang Bahadur, we have seen, was throughout his life a follower of the Hindu religion and its tenets and always lived the life of a Hindu, and in acting on the rule of justice, equity and good conscience for determining his lawful heir and successor to his estate, we must as far as possible apply the rule of Hindu law. Judged by these rules, the plaintiff and his brothers, who are Mahomedans and illegitimate sons of Jang Bahadur, have clearly no right to inherit his estate. Is the defendant No. 1 Jang Bahadurs legitimate son and sole heir on the rule of equity, justice and good conscience and on the application of so much of the Hindu law as may be applicable to Jang Bahadur ? The question must in my opinion be answered in the affirmative. The defendant No. 1 is the Hindu son of Jang Bahadur by Hansraj Kunwar, who was married by her Hindu guardians to Jang Bahadur in strict observance of the Hindu ceremonial of marriage and in the belief that the solemnization of the Hindu rites made the marriage as good as any other marriage in a Kshatriya family." The Subordinate Judge accordingly dismissed the suit. The plaintiff appealed to the Court of the Judicial Commissioner, which Court by its judgment delivered on February 26, 1906. dismissed the appeal. The learned First Additional Judicial Commissioner, in dealing with the terms of the codicil, expressed the view that prima facie the word " aulad " refers only to legitimate issue, and that the provision in the codicil for the reversion of the property to the taluqa when there should remain no descendant of Jang Bahadur was a strong indication that it was so used therein. Upon the question as to how far Jang Bahadur was to be regarded as a Hindu, the learned Commissioner, in a passage which is cited at greater length in the judgment of their Lordships, said " It is evident that he was neither an orthodox Hindu nor an orthodox Mahomedan .... He, no doubt, called himself a Hindu, and if he had any religion it was, as the Subordinate Judge says, the popular idolatrous form of Hinduism, but he is not proved to have been an orthodox Hindu, and therefore it seems to me that if the plaintiff were found to be of legitimate birth the circumstance that his father became a Hindu to the extent shown by the evidence would be no reason for passing over the plaintiff and giving the property to the first defendant." The learned Commissioner considered, therefore, that the crucial question in the case was whether there was a nikah between the plaintiffs mother and Jang Bahadur, and upon the evidence he found that there was no nikah and that the plaintiff and the defendants 2, 3, and 4 were consequently illegitimate. He concluded as follows "In this view of the case it is not necessary to express any opinion upon the question whether the first defendant should be regarded as a legitimate son. His mother was married to Jang Bahadur at the instance of the Maharajah, who must have known that the plaintiff and his brothers were illegitimate. Under these circumstances it cannot be supposed that when the Maharajah wrote that the villages devised to Jang Bahadur should on his death devolve upon the child jiska haq pahunchta ho (to whom the right may accrue) he intended that the villages should devolve upon the plaintiff and that the first defendant should be entitled to no more than food, raiment, and other necessary expenses. As regards the property in lists B and C " (i.e., the property acquired by Jang Bahadur) " it is sufficient to say that inasmuch as an illegitimate son cannot under the Sunni law succeed to his father, the plaintiff, who has been found to be illegitimate, has no right to that property." The learned Second Additional Judicial Commissioner agreed with the above judgment, and the appeal was accordingly dismissed. Sir R. Finlay, K.C., and Dube, for the appellant. The Subordinate Judge was wrong in holding that the first respondent was legitimate. Jang Bahadur was a Mahomedan by birth and did not, and by Hindu law could not, become a member of the Kshatriya caste. A man cannot acquire caste except by birth and a marriage by a Hindu woman outside her caste is invalid Bannerjees Hindu Law of Marriage and Stridhana (Tagore Law Lectures, 1878), 2nd ed., pp. 68 and 74; Padam Kurnari v. Suraj Kumari (( 1906) I. L. R. 28 Allah. 438.); followed in the two next mentioned cases, Bai Kashi v. Jamnadas Mansukh (( 1912) 16 Ind. Cases, 133.) ; Sespuri v. Dwarka Prasad (( 1912) 16 Ind. Cases, 222.) ; Melaram Nudial v. Thanooram Bamun (( 1868) 9 Suth. W. R. 552.); Narain Dhara v. Rakhal Gain (( 1875) I. L. R. 1 Calc. 1.) ; Act III. of 1872, s. 2. The purported marriage between Jang Bahadur and Hansraj Kunwar was therefore invalid and the first respondent illegitimate. Although the Court of the Judicial Commissioner refrained from determining whether the first respondent was legitimate, the decision in effect treated him as being so. Admitting that, as found in India, the plaintiff was illegitimate, the word " aulad M as used in the codicil should not be confined to legitimate children. If all the five sons of Jang Bahadur are illegitimate, then, according to justice, equity, and good conscience, the appellants claim to all the properties in dispute ought to be allowed; under the present decision, although the eldest son, he does not get even a right to maintenance. The circumstances are similar to those in Barlow v. Orde (( 1870) 13 Moo. Ind. Ap. 277.), the principle of which decision was applied in Skinner v. Naunihal Singh. (( 1913) L. R. 40 Ind. Ap. 105.) De Gruyther, K.C., and Eddis, for the first respondent. The circumstances are similar to those in Barlow v. Orde (( 1870) 13 Moo. Ind. Ap. 277.), the principle of which decision was applied in Skinner v. Naunihal Singh. (( 1913) L. R. 40 Ind. Ap. 105.) De Gruyther, K.C., and Eddis, for the first respondent. The case now put forward on behalf of the appellant differs from that presented by the plaint, by which the appellant claimed the whole estate, or, alternatively, a quarter share, by including his uterine brothers but excluding the first respondent. The appellants case at the trial was that the four sons were legitimate but that the first respondent was illegitimate. If Jang Bahadur remained a Mahomedan, the Mahomedan law governs the inheritance and the plaintiff, as an illegitimate son, can have no claim. Both Courts found that the alleged marriage of the appellants father and mother did not take place. The object of the codicil was to make provision for Jang Bahadur, not for his illegitimate children. The Maharajah had made a separate settlement upon the latter and had in his lifetime given large estates to Jang Bahadur from which he could himself make such provision for them as he wished. The evidence shews that the first respondent was sufficiently accepted into the Kshatriya caste to make a valid marriage in that caste. The authorities cited on behalf of the appellant do not controvert the proposition that a person may validly be introduced into a Hindu caste Bhattacharyas Hindu Castes and Sects, p. 5 ; Bannerjees Hindu Law of Marriage and Stridhan, 2nd ed., p. 73. A Hindu will should be construed relatively to the ordinary notions and wishes of Hindus respecting the devolution of property and having regard to the surrounding circumstances Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick (( 1857) 6 Moo. Ind. Ap. 526, at p. 550) ; Moulvie Mahomed Shumsool Hooda v. Shewukram (( 1874) L. R. 2 Ind. Ap. 7, at p. 14.); Radha Prosad Mullick v. Ranimoni Dassi.(( 1908) L. R. 35 Ind. Ap. 118.) The word "aulad" includes only legitimate children unless there is something in the will to indicate a different intention, which there is not here. It is not possible to suppose that the Maharajah intended that the appellant, a Mahomedan by birth, should be rais. Ap. 118.) The word "aulad" includes only legitimate children unless there is something in the will to indicate a different intention, which there is not here. It is not possible to suppose that the Maharajah intended that the appellant, a Mahomedan by birth, should be rais. If Jang Bahadur did not truly become a Hindu, yet, under the justice, equity, and good conscience rule, the succession to the property comprised in the codicil should be guided by Hindu law, since he was brought up by the testator as a Hindu and always adopted the observances of that religion Abraham v. Abraham (( 1863) 9 Moo. Ind. Ap. 195.); Francis Ghosal v. Gabri Ghosal.(( 1906) I. L. R. 31 Bomb. 25.) It cannot be supposed under the circumstances that the testator intended to exclude the first respondent in favour of the appellant. Sir R. Finlay, K.C., in reply, referred to Wilkins Modern Hinduism, pp. 262, 263, and Sherrings Hindu Tribes and Castes, Introduction, p. xxii. [Lord Atkinson, in the course of the argument, said that where in an appeal the terms of a document in the vernacular are material it is desirable that the original should be before their Lordships, or that a copy in the vernacular should be included in the record.] The judgment of their Lordships was delivered by LORD ATKINSON. This is an appeal from a judgment and decree dated February 26, 1906, of the Court of the Judicial Commissioner of Oudh, which affirmed a judgment and decree dated January 3, 1905, of the Court of the Subordinate Judge of Gonda, dismissing the plaintiffs suit. The action out of which the appeal arises was instituted on April 3, 1902, by the plaintiff as eldest son and heir of his father, Jang Bahadur Singh, by a Mahomedan woman, claiming to recover the possession of the several villages mentioned in the schedule annexed to the statement of claim. These villages formed part of an estate called the Balrampur estate which had been bequeathed to the plaintiffs father by his (the plaintiffs) paternal grandfather, the Maharajah of Balrampur, by a codicil dated March 15, 1878, to the last will of the Maharajah. Possession of these villages had been taken in the year 1899 by the first defendant, and has since then been retained by him. Possession of these villages had been taken in the year 1899 by the first defendant, and has since then been retained by him. Mesne profits were claimed in respect of this possession., and a claim was added to recover possession of the movable and immovable property mentioned in schedules B and C, also annexed to the statement of claim, or in the alternative the plaintiffs legal share thereof, on the ground that the same was property acquired by the plaintiffs said father, with an additional claim for further relief. The first defendant, Bhaiya Ganga Bakhsh Singh, filed a written statement alleging that the plaintiff was the issue of a Mahomedan woman with whom his (the said defendants) father, Jang Bahadur Singh, had had illegal intercourse, as were also the defendants numbered 2, 3, and 4, and that her nikah had never taken place; that his father followed the Hindu religion bigotedly, and was a Hindu from his boyhood up to his death; that he married for the first time a Hindu lady of a Surajbansi Kshatriya family; that he (the first defendant) was the only child of that marriage, is the only legitimate son and heir-at-law of his father, and is consequently under the provision of the said codicil entitled to the allowance therein mentioned. The plaintiff replied traversing the several allegations contained in this and the other written statements filed by other defendants, and upon these pleadings eight issues were formu lated. A vast body of evidence was given bearing pon each of these issues. Many of them are no longer of importance on this appeal, which is the ultimate stage of the litigation. The real questions now in dispute are, first, the proper construction of the language of the codicil of March 15, 1878, and second, the actual intention which the Maharajah desired to effect in executing it. The facts so far as material to the decision of these questions are as follows. The plaintiff is the firstborn son of his father, and the second, third, and fourth defendants are his brothers, sons of Jang Bahadur Singh by the Mahomedan woman already mentioned. The facts so far as material to the decision of these questions are as follows. The plaintiff is the firstborn son of his father, and the second, third, and fourth defendants are his brothers, sons of Jang Bahadur Singh by the Mahomedan woman already mentioned. It has been found as a fact by both the Courts before which this case has come that no ceremony of marriage was ever gone through between Jang Bahadur Singh and this woman, that she was his mistress not his wife, and that, consequently, the plaintiff and his brothers are illegitimate. The appellant accepts this finding as conclusive on this point. The first defendant is the son of Jang Bahadur by a Hindu lady of the Kshatriya caste with whom he had, admittedly, gone through the ceremony of marriage according to the strict Hindu rite. The validity of this marriage is impeached by the plaintiff upon the ground that at the time it was celebrated Jang Bahadur was neither a Hindu nor a member of the Kshatriya caste, and that consequently the first defendant is, like the plaintiff and his brothers, illegitimate. The issue thus raised necessitated a somewhat lengthy examination of the life history of Jang Bahadur. He was, as already mentioned, the son, born in the year 1846, of a rather distinguished man, a Hindu by religion of the Junwar Kshatriya caste, Sir Digbijai Singh, Maharajah of Balrampur, by a Mahomedan mistress named Imam Bandi, and was therefore, as held by both the Courts above mentioned, a Mahomedan by birth. This decision is also accepted by the appellant. The Subordinate Judge found that " Jang Bahadur was brought up, not as a Mahomedan under the influence of his Mahomedan mother, but by his Hindu father in the religion of Hindus." He also found that " he never professed the Mahomedan religion and was never a Mahomedan in fact; that after he was able to make a choice he did not choose the religion of Islam, but on the other hand lived and died in the faith of Hinduism .... that he was throughout his life a follower of the popular idolatrous form of Hinduism, a form directly antagonistic to the cardinal principles upon which the religion of Islam is founded." The Subordinate Judge came to the conclusion that " as Jang Bahadur was never throughout his life a Mahomedan, the Mahomedan law did not regulate the succession to his estate, and as he was not a Hindu by birth neither did the Hindu law regulate it; that neither of these laws nor yet the Indian Succession Act governed him at his death, and that according to the principles of justice, equity, and good conscience, and by the application of so much of the Hindu law as was applicable to the case, Ganga Bakhsh Singh, the first defendant, was his fathers legitimate son and sole heir." The Court of the Judicial Commissioner, whilst abstaining from pronouncing any definite opinion on the legitimacy of the first defendant, gave in the following passage of their judgment a sketch of the status, life, and character of Jang Bahadur Singh, which, though it differs to some extent from that of the Subordinate Judge, is, in their Lordships view of the evidence, fairly accurate. It runs thus " Jang Bahadur belonged to no caste, and even if the issue of his marriage with Hansraj Kunwar should be held to be legitimate, a point on which I express no opinion, it is clear that the Hindu community at Balrampur treated the validity of the marriage as open to question. The Subordinate Judge has cited several authorities to show that the Hindu religion admits proselytes of all kinds. The truth of this is indisputable, but it is equally true that the admission of a proselyte and his descendants into the society of orthodox Hindus is a very slow process. The defendants witnesses hit off the position exactly when they say that they might eat with Jang Bahadurs family if they persevered in their Hindu habits and maintained their character for several generations. In two parts of one and the same house Jang Bahadur had a Mahomedan and a Hindu family and seems to have been on equally affectionate terms with both. He ate food in English hotels and railway refreshment rooms, drank gin and kept fowls and pigs. It is evident that he was neither an orthodox Hindu nor an orthodox Mahomedan. In two parts of one and the same house Jang Bahadur had a Mahomedan and a Hindu family and seems to have been on equally affectionate terms with both. He ate food in English hotels and railway refreshment rooms, drank gin and kept fowls and pigs. It is evident that he was neither an orthodox Hindu nor an orthodox Mahomedan. It appears to be that he led a double life as was almost inevitable under the circumstances. He no doubt called himself a Hindu, and if he had any religion it was, as the Subordinate Judge says, the popular idolatrous form of Hinduism, but he is not proved to have been an orthodox Hindu, and therefore it seems to me that if the plaintiff were found to be of legitimate birth the circumstance that his father became a Hindu to the extent shown by the evidence would be no reason for passing over the plaintiff and giving the property to the first defendant." It has been urged on behalf of the respondents that the Court of the Judicial Commissioner was mistaken in supposing that Jang Bahadur kept his two families in two sides of the same house, that, in truth and fact, he kept them in two different houses. This is really a small matter and does not affect the general accuracy of the passage. A vast body of evidence was given describing in great detail the participation of Jang Bahadur Singh on many occasions in the most solemn rites and ceremonies of the Hindu religion. It was proved by many witnesses that he wore, somewhat ostentatiously, the Hindu tilak on his forehead, that he was invested by his father with the sacred thread, that he kept a Hindu cook to cook his food. The fair result of the evidence in their Lordships opinion is that Jang Bahadur did his utmost to become an orthodox Hindu, and to pass as such in the society in which he lived ; that his father, from the boys youth upwards, aided and encouraged him in those efforts ; and, finally, when be was only fifteen years of age, procured a marriage to be celebrated with great pomp and rejoicing according to the strict Hindu rite between him and the already mentioned Hindu lady of the Kshatriya caste, Hansraj Kunwar. This ladys family were apparently not well off, and it was stated in evidence that the Maharajah gave to her brother Sheo Dial a village to induce him to consent to the union. This, however, only proves the anxiety of the Maharajah to bring about the marriage. No doubt the Maharajah did not attend the ceremony himself. He allowed certain priests to perform for him those ceremonies properly performable on such occasions by a father, but the marriage cannot but be regarded as a somewhat bold attempt to force, as far as possible, the sons entrance into the ranks of a high (twice born) caste, and it might well be that the father, as the Subordinate Judge thought, may have absented himself from the ceremony from motives of prudence. On the other hand it is difficult to believe that all the parties concerned, Sheo Dial, with his own sons, and his daughters to get married, the Maharajah with his position and distinction, the priests with their duties to their religion and office, and all those who assisted at the ceremony with their notions of what was due to their creed, would have promoted, or taken part in, an elaborate public function if they knew that it could at best create only a relation of permanent concubinage, without hope or prospect of elevation into a worthier and more respected state. The evidence of Sheo Dial is important in this connection. He said he went with two pandits to visit the Maharajah; that he had learned that Jang Bahadur was a Mahomedan womans son; that on his expressing his scruples about the contemplated marriage owing to this fact the Maharajah assured him that Jang Bahadur was a Hindu ; that he (the Maharajah) held him (Sheo Dial) by the arm and said " From childhood I have got him suckled by a Brahmin woman. He eats with me. He does puja, and his ways are the ways of a Hindu." Sheo Dial further says that Jang Bahadur Singh wore a tilak of chandvan, that his cook was a Hindu, that he saw him sitting near the Maharajah at dinner, and that hearing and seeing this he, Sheo Dial, consented to the marriage of his sister with Jang Bahadur. He does puja, and his ways are the ways of a Hindu." Sheo Dial further says that Jang Bahadur Singh wore a tilak of chandvan, that his cook was a Hindu, that he saw him sitting near the Maharajah at dinner, and that hearing and seeing this he, Sheo Dial, consented to the marriage of his sister with Jang Bahadur. No doubt it is stated by another witness that the Maharajah did not sit at meals with this son, but unless this evidence of Sheo Dial be an entire fabrication it bears additional testimony to the anxiety of the Maharajah to have his son accepted and treated as a Hindu. Hansraj Kunwar died in the Maharajahs lifetime. Jang Bahadur performed all the obsequies proper to be performed according to the Hindu religion by a surviving Hindu husband. His father, in the year 1872, got him, then about twenty-four years of age, again married to another Hindu lady, a member of the same Kshatriya caste, Raj Kali Kunwar, who survived him, and is the fifth defendant in this suit. There was the same publicity and pomp as on the occasion of the first marriage, the same religious ceremonial. The Maharajah on this occasion, as on the former, absented himself and got his duties performed vicariously in the same way. The sole issue of this second marriage was a girl. Both she and Bhaiya Ganga Bakhsh Singh married members of the Kshatriya caste. Sir Robert Finlay insists that the law for many centuries has been that a Hindu must be born not made, and he cited several authorities in support of that proposition. On the other hand the treatises referred to by the Subordinate Judge in his judgment appear to tend in an opposite direction, and the facts of this case shew that in this matter of marriage the rules both of Hinduism and of caste were not, in this instance at all events, strictly applied. In the view their Lordships take it is unnecessary to express any opinion on the point. In the view their Lordships take it is unnecessary to express any opinion on the point. The matter for decision in this case being the construction of a codicil to the Maharajahs will, the point is not what is the strict rule of the Hindu religion, or the strict rule of the Kshatriya caste, but this, namely, what were the wishes and intentions of the testator as revealed by the language of that instrument, viewed through the light of the circumstances which surrounded him at the time he made it. It would be strange indeed if the man who had made it his special care to rear this son of his as a Hindu, and had succeeded in marrying him to two high caste Hindu women, should intend or desire, whatever might be the strict letter of the law, to place the offspring of these unions on the same level as the illegitimate children of his sons Mahomedan mistress and make them all equally the objects of his bounty. Much reliance was placed by the appellant upon the evidence of several witnesses, members of the Kshatriya caste, which was directed to shew that they would not eat with Jang Bahadur Singh, take betel leaves from him, or recognize him as a member of that caste, or of the Hindu religion, and it was contended that the Subordinate Judge had not paid sufficient attention to this evidence, or given it its due weight. He has no doubt not commented upon it at any great length, but it would be quite unreasonable because of this to conclude that he had not fully considered it. When the evidence is examined it will be found that the objection of many, if not most, of these witnesses to eat with Jang Bahadur or to gie him betel leaves, &c, was due to the well-known and undisputed fact that he was the illegitimate son of a Mahomedan mistress, rather than to the fact that he was not a genuine Hindu. This is notably so in the case of the witnesses Kali Parshad and Jagdeo Singh. The former said " I did not eat with Jang Bahadur because he was Imam Bandis son," and again, " I wont eat kutcha food touched by Ganga Bakhsh. This is notably so in the case of the witnesses Kali Parshad and Jagdeo Singh. The former said " I did not eat with Jang Bahadur because he was Imam Bandis son," and again, " I wont eat kutcha food touched by Ganga Bakhsh. I wont drink water from his hand because his grandmother was a Mahomedan," and the latter said " I cannot eat food cooked by Raj Kali Kunwar because she was Jang Bahadurs wife," but he proceeded to say that he would have no objection to eat with Jang Bahadur Singh if the Maharajah had asked him to do so, and then he added the important statement " Jang Bahadur had offended the Maharajah by keeping a Mahomedan woman, that woman had four sons, she lived with Bandi as Jang Bahadurs mistress for twelve or thirteen years until her death." Babu Basudeo Lal, an educated man and an advocate, says " Jang Bahadur took particular care to put on the tilak more than a born Hindu would take because he was anxious to appear a Hindu; that from the orthodox point of view he (the witness) did not consider him a Hindu, but he could not say he was a Mahomedan, because he professed to be a Hindu," yet he gave not this fact but the fact that Jang Bahadur was of illegitimate birth as the reason for his unwillingness to take water from his hands. Hanwant Singh gives remarkable evidence to the same effect. He said " I consider Jang Bahadur a Hindu. He worshipped like a Hindu. He did pilgrimages like a Hindu. He gave dans to Brahmins like a Hindu. His ways were those of a Hindu. I saw him doing puja in the temple for the first time thirty years ago, and three times altogether I saw him feeding Brahmins at the temple." Yet despite what he saw, and his opinions on Jang Bahadurs religion, he says on the next page he would not eat with him because he was born of Imam Bandi, nor would he eat with Ganga Bakhsh, because presumably he was his fathers son, though he admits that if the latter " persevered in his Hindu habits for two generations he would be taken into the biradri." These witnesses are fair specimens of those examined on this point. Their evidence might be of importance if it was necessary for their Lordships to determine whether or not the first defendant was the legitimate son and heir-at-law of Jang Bahadur. The Subordinate Judge has determined that question in the affirmative. Their Lordships concur with the Court of the Judicial Commissioner in thinking that it is not necessary to determine it one way or the other for the purposes of the decision of this appeal, and they therefore abstain from expressing any opinion upon it. What is of importance, when one has to construe this codicil, and determine what was the testators intention in making it, is to ascertain in what light he regarded his son, the marriages he helped that son to contract, and the issue that sprung from them. Their Lordships are of opinion that the reasonable conclusion to be drawn from the evidence is that the Maharajah treated this son of his as a Hindu in religion, and desired that other? should so treat him; that he treated his marriages with the two Kshatriya ladies as lawful marriages and desired that others should so treat them, and consequently resolved to regard and treat the offspring of these unions as legitimate, and desired they should be so treated and regarded by others; and that it was in this frame of mind he made the testamentary disposition which is in dispute. It is lengthy, and in its material parts runs thus " Whereas I have a son, named Jang Bahadur Singh, born of an unmarried mahal, and whereas he is not born of khas mahal, and it is against the usage of the family and against religion according to the Hindu Shastras, so he is not considered capable of gaddinishin and the proprietorship of the riasat. But he also being born of my loins, it is incumbent on me that such means be provided for support as would enable him and his (aulad) issues to support themselves well and with respect. Accordingly ever since the date of his birth till this day whenever proper opportunity presented, grant was made for his support; and during my lifetime I shall make grants according to my will whenever I shall deem it expedient to do so. Accordingly ever since the date of his birth till this day whenever proper opportunity presented, grant was made for his support; and during my lifetime I shall make grants according to my will whenever I shall deem it expedient to do so. But with a view to clearly make a provision beforehand in order that there may not remain any co-ownership and dispute relating to a part or the whole of my movable and immovable property, a property should be determined for Jang Bahadur Singh and his (aulad) issues for generation after generation in order that the conditions of the deed may remain binding in perpetuity. Accordingly the settlement is made as follows. It is this Rs.4000 per mensem or Rs.48,000 per annum shall be continued to be paid by the proprietor of the riasat, the locum tenens of the gaddinishin for the time being; and that amount shall be paid to Jang Bahadur Singh and his (aulad) issues for generation after generation as long as the (khandan) family of Jang Bahadur Singh and his (aulad) issues remain in existence. " Details of Conditions. "1. He shall not directly or indirectly take part in running the riasat, and shall also remain a well-wisher of the riasat. 2. He shall not transfer his maintenance allowance to a stranger by sale, mortgage or otherwise. 3. For his lifetime Jang Bahadur Singh has a right to spend this money, but after his death from among his (aulad) issues one person (jiska haq pahunchta ho) to whom the right may go shall be considered proprietor of this maintenance allowance without division as a rais. The other issues of the family of Jang Bahadur Singh shall be entitled to get food, raiment and other necessaries out of the monthly allowance; . . . . 4. When there remains no descendant of the family of Jang Bahadur Singh, at any time, the monthly allowance of Rs.4000 will be resumed and remain in proprietary possession of the proprietor of the riasat, the gaddinishin. 5. For the realisation of the monthly allowance, a few villages with jama and names of demarcated villages and hamlets are selected, and a list of the same is annexed to the document. The jama of the selected (tajwiz shuda) villages will be credited from year to year towards the aforesaid fixed monthly allowance of Rs.4000. 5. For the realisation of the monthly allowance, a few villages with jama and names of demarcated villages and hamlets are selected, and a list of the same is annexed to the document. The jama of the selected (tajwiz shuda) villages will be credited from year to year towards the aforesaid fixed monthly allowance of Rs.4000. Neither has the proprietor of the riasat, gaddinishin, power to realise the jama of the selected villages yielding Rs.48,000, including mal and sewai, from Jang Bahadur Singh or his descendants, nor is Jang Bahadur Singh or his family descendants competent to demand the fixed monthly allowance of Rs.4000 from the gaddinishin, the proprietor of the riasat. 6. The jama of the selected villages, a copy of which is attached to the document, shall be deemed the jama, including mal and sewai in perpetuity. And the proprietor of the riasat for the time being shall have no power to increase or decrease the jama. And Jang Bahadur Singh and his family descendants shall raise no excuse as to increase or decrease of the jama. And the proprietor of the riasat shall have no power to cancel the lease. And Jang Bahadur Singh and his family descendants shall have no proprietary right against the proprietor of the riasat, except that of deriving benefit from the selected villages. Besides, Jang Bahadur Singh and his family descendants shall have no power to transfer the immovable property by sale or mortgage or otherwise. But they shall continue in perpetuity to hold possession over the said villages. 7. The villages selected for payment of the monthly allowance shall have their boundaries maintained according to the map of had-o-bast kishtwar. The proprietor of the riasat shall have no power to vary them contrary to it, nor shall Jang Bahadur Singh or his descendants have any." Then follow the details of the villages leased out in perpetuity for the payment of the monthly allowance of Rs.4000. The testator then makes a bequest to Imam Bandi, the mother of Jang Bahadur, in the following words " Besides, with a view to support the mother of Jang Bahadur Singh, I propose to fix Rs.1000 per mensem, or Rs.12,000 a year, for her personal expenses. The testator then makes a bequest to Imam Bandi, the mother of Jang Bahadur, in the following words " Besides, with a view to support the mother of Jang Bahadur Singh, I propose to fix Rs.1000 per mensem, or Rs.12,000 a year, for her personal expenses. She that is the mother of Jang Bahadur Singh has power to spend the fixed allowance without interference by any body else, and may, in her lifetime, make a will in favour of anybody whom she pleases, and in respect of any good work she likes, and it will be deemed liable to be acted upon. And for the purpose of realising the aforesaid annuity of Rs.12,000, a few villages, mentioned below, are given by way of theka with jama assessed thereon. The money will be realised from those villages from year to year." He then gives a list of the villages out of which the Rs.12,000 was to be collected, and proceeds to add " These few sentences have been put down to make provision for her support while in the enjoyment of health and possession of the five senses, and out of my own pleasure and accord, in order that they may be of use after me." The testator died on May 27, 1882. In or about January, 1894, Jang Bahadur Singh became insane. He so continued for several years, and died on October 1, 1899, leaving as his own the movable and immovable property mentioned in schedules B and C attached to the statement of claim. The first defendant, as already mentioned, immediately went into possession of the property mentioned in schedule A and has since retained it. Jang Bahadur Singh was created by the codicil ancestor or first proprietor of the estate. Maintenance allowances, somewhat resembling rent-charges, were charged upon it. It was to be perpetual, impartible, indivisible, and incapable of being otherwise charged or incumbered, and it was not to be the subject of any co-ownership. On the death of Jang Bahadur a person, styled the representative of the former, was to succeed him as proprietor of this maintenance allowance, without " division," as a rais. This proprietor was to be one of the issue of Bahadur Singh, the other issue (aulad) of the family (khandan) of Jang Badahur Singh being only entitled to get food and raiment out of the allowance. This proprietor was to be one of the issue of Bahadur Singh, the other issue (aulad) of the family (khandan) of Jang Badahur Singh being only entitled to get food and raiment out of the allowance. In addition the marriage and funeral expenses of the male and female children of the family of Jang Badahur Singh were to be paid. The only indication given as to how the particular individual, one of the issue of Jang Bahadur, who was to succeed him as proprietor of the allowance was to be ascertained is that contained in the words " on whom the right may go." The testator must have had in mind some law or rule which would apply to fix the succession. What law could this high caste Hindu possibly have had in mind for such a purpose other than the Hindu law ? That law, however, in the matter of succession to property, takes no account, in the three higher classes, of illegitimate descendants. Sir Robert Finlay, as their Lordships understood, admitted this contention—at, least to this extent, that if when a successor came to be ascertained the class of beneficiaries contained both legitimate and illegitimate members, the eldest legitimate male would by the Hindu law succeed ; but where, as in the present case, as he contended, all the children are illegitimate, the eldest male amongst them should succeed. But by what law or rule he did not indicate. It is difficult to suppose that if the testator intended all his grandchildren to be put upon the same level he would not have indicated some method by which the successor to his son should be selected. If he relied at all upon the Hindu law to select that successor it could only be because he wished it to be assumed that that law applied to some of the issue of his son, and that could only be the case if those members of the issue were to be taken to be legitimate. At the date of this codicil Jang Bahadur was only about thirty years of age. He had already had one son by his deceased Kshatriya wife. At the date of this codicil Jang Bahadur was only about thirty years of age. He had already had one son by his deceased Kshatriya wife. He had been married for some time to another Kshatriya wife, by whom it was quite possible he might have had male issue, and it would have been quite in conflict with the whole tenor of the Maharajahs treatment of and conduct towards his son Jang Bahadur to deprive by this codicil these marriages and the issue springing from them of the character and status he had striven to secure for them. The Court of the Judicial Commissioner came to the conclusion that the Maharajah thought these marriages of his son were valid, and the issue of them legitimate. However that may be, it is clear, their Lordships think, upon the whole of the evidence that he wished them to be go regarded by others, Nothing would more surely have defeated that desire than that he should by this testamentary instrument shew that he himself regarded them in a wholly different light, and placed the children of these marriages on an equality with those of a Mahomedan concubine. The Maharajah has used the word " aulad" throughout this codicil to describe the issue of his son Jang Bahadur. The Court of the Judicial Commissioner has laid it down that this word prima facie means legitimate issue. This case is not one where a gift is made by will of the corpus of a fund, or a life interest in a fund, to the " children " of the testator or of another as a class. There may be good reason in some such cases for holding that in India the word " children " includes illegitimate children, but here a succession of life interests from generation to generation is intended to be set up, the successor or " proprietor" in each instance being vested with absolute control of the income, subject only to the duty of maintaining the issue (aulad) of the family (khandan) of the first proprietor, Jang Bahadur Singh. There is nothing on the face of the will to suggest that a meaning should be given to the word " aulad" different from its prima facie meaning ; but if it is to be read as including illegitimate issue, then it follows that the testator intended to bring into the line of succession not only his illegitimate grandchildren but their illegitimate issue from generation to generation. Such a construction would render rather unnecessary the provision that if no descendants of the family of Jang Bahadur remained, the monthly allowance should fall into the possession of the gaddinishin, and would also seem to defeat the whole purpose and object of the testator in establishing this succession of life interests. Nor do their Lordships see any reason for extending in this instance the meaning of the word " khandan," which ordinarily refers to the group of descendants who constitute the family of the progenitor, so as to include illegitimate offspring, who from the necessities of the case cannot share in the family life or its worship or ceremonials. It has been strenuously urged by Sir Robert Finlay on behalf of the appellant first, that there would have been nothing easier for the testator, if he desired to exclude his illegitimate grandchildren from all benefit under this codicil, than to have said so. The question is, has he not done so by the use of the word "aulad "? But even if this be not so, it was quite as easy for him to include them in the class described by the word " issue " as to exclude them from it, so that the argument cuts both ways. It was in the second place contended that, having regard to his interest in these children, he never could have intended to leave them unprovided for. He undoubtedly did shew some interest in them, but not a very keen interest, and it is by no means clear that he did not intend them to be provided for in the way they have been provided for, namely, by being maintained by their grandmother Imam Bandi during her life, out of the income left to her by the codicil. He enabled her by the exercise of the testamentary power over this income conferred upon her so to provide for them after her death. The income was large, Rs.1000 per mensem. He enabled her by the exercise of the testamentary power over this income conferred upon her so to provide for them after her death. The income was large, Rs.1000 per mensem. She was a woman who at the date of the codicil must have been at least forty-five years of age, her son Jang Bahadur being then thirty years of age. The sons mistress and her children lived with her. She, according to the evidence, helped to rear them. It was scarcely conceivable that she should require Rs.12,000 per annum for her personal expenses alone. The power of disposing of this income by will clearly shewed that the testator had some object in view beyond providing adequately for her maintenance. What more natural than that this income, handsome in amount, and disposable by her will, should have been given to enable her to provide for her grandchildren ? Their Lordships are therefore of opinion that, having regard to all the evidence in the case and the provisions of the codicil itself, the intention of the testator plainly was to treat the marriages of Jang Bahadur with the two Kshatriya women already mentioned as valid marriages, and the issue of those marriages as legitimate issue. They think that the judgment appealed from was right, and that this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.