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JUDGMENT Arnold White, C.J.
1. I have already dealt with the question whether the learned Judge had jurisdiction to grant the relief which he has given in this suit. The question remains whether his judgment should be upheld. The more important dates are as follow:
The defendant is the President of the Theosophical Society and the plaintiff has been a member of the Society since 1882. About the end of 1908 the plaintiff was appointed Assistant Corresponding Secretary of the Esoteric Section of the Society and he and his family took up their residence at the headquarters of the Society, Adyar, in a house which he occupied rent free. In September 1909 he removed his two minor cons, Krishnamoorti and Nityananda from school, and they received gratuitous instruction at Adyar from one Mr. C.W. Leadbeater and others. The boys were then aged about 14 and 11. The defendant first became acquainted with them in December 1909. On the 6th March 1910, the plaintiff signed a letter (Ex. A.) by which he constituted the defendant the guardian of his minor sons. The plaintiff alleges in the particulars which he was ordered to deliver that in April 1910 he witnessed the incident which is described in paragraph 1 of the particulars. He also alleges that between December 1910 and February 1911 and on later dates he was told by certain parties that they had seen the incident mentioned in paragraph 2 of the particulars. In March 1911 the defendant took the boys to Benares and thence to England. In October 1911 they returned to Adyar and remained there until December 1911. Mr. Leadbaater, who had been at Adyar throughout, then took them to Benares. On the 31st December 1911, the plaintiff informed Mrs. Van Hook at Benares of the incident described in paragraph 1 of the particulars, and on the same day the plaintiff went to the defendant and demanded that the boys should be separated from Mr. Leadbeater, and referred her to Mrs. Van Hook for the reason. The defendant refused the plaintiff's request. The plaintiff returned to Adyar at the beginning of January 1912 and made complaints to various persons. On the 19th January 1912 there was an interview at Adyar between the plaintiff and the defendant and several members of the Society. A note of the proceedings at the interview was taken down by the defendant. The note is to the effect that the plaintiff stated he had no objection to the boys being taken to England and that the defendant said that she had separated the boys from Mr. Leadbeater. Mr. Leadbeater had left India about January 13, 1912. On January 26, 1912, the defendant left Adyar with the two boys for Benares and shortly afterwards took them to England. The boys were left with Mr. Leadbeater and others for a short time in Sicily, the defendant being in England. The boys then followed the defendant to England, Mr. Leadbeater accompanying them to Genoa. It having come to the knowledge of the defendant that the plaintiff had been making enquiries with respect to the charge against Mr. Leadbeater contained in the second paragraph of the particulars, she wrote to him a letter on February 7,1912, (L L) in which she dismissed him from his office of Secretary. On 11th July 1912 the plaintiff wrote to the defendant a letter (Ex. AA. 6) in which he purported to cancel the letter Ex. A and asked her to hand over to him his two sons. In October 1912 the defendant returned to Adyar leaving the boys in England and the plaintiff instituted this suit.
2. I propose, first, to state what appears to me to be the law as to the rights of a father to the control and custody of his minor children. I do not think it has been suggested that the exposition of the law relating to this matter contained in the judgment of Vice-Chancellor Kindersley in re Curtis (1859) 28 L.J. Ch. 458 at 460 is not still the law of England. It is there laid down that the Court of Chancery cannot decide upon the custody of infants simply with reference to what is most for their benefit and cannot interfere with the rights of a father, unless he so conducts himself as to render it essential to the safety and welfare of the children in some serious and important respect, either physically, intellectually or morally, that they should be removed from his custody. The Vice-Chancellor in his judgment cited the case of In re Fynn (1848) 64 E.R. 205 S.C. 2 De. Gex. and Section 457 in which Lord Justice Knight Bruce made the following Observations : "Of the present case I may say, that were I at liberty, as I am not, to act on the view which out of Court I should, as a private person, take of the course likely to be most beneficial for the infants, I should have no doubt whatever upon the question of interfering with the father's power. Without any hesitation-I should do so,-to what extent and in what manner I do not say. But there may and must be many cases of conduct, many cases of family differences, family difficulties and family misfortunes, in which though interposition would be for the interest and advantage of minor children, Courts of Justice have not the means of interfering usefully, or, if they have the means, ought not to interfere." " A man may be in narrow circumstances, he may be negligent, injudicious and faulty as the father of minors; he may be a person from whom the discreet, the intelligent and the well disposed, exercising a private judgment, would wish his children to be, for their sakes and his own, removed; he may be all this without rendering himself liable to judicial interference, and in the main it is for obvious reasons well that it should be so. Before this jurisdiction can be called into action between them, the Court must be satisfied, not only that it has the means of acting safely and efficiently, but also that the father has so conducted himself, or has shown himself to be a person of such a description, or is placed in such a position, as to render it . not merely better for the children, but essential to their safety or to their welfare, in some very serious and important respect, that his rights should be treated as lost or suspended--should be superseded or interfered with. If the word "essential " is too strong an expression, it is not much too strong. The defendant suggested that the law as laid down in re Curtis (1859) 28 L.J. Oh. 458 at 460 was altered by the Guardianship of Infants Act 1886 (49 and 50 Viet. C. 27). No doubt this enactment altered the law but its provisions, as it seems to me, do not touch the general principles to which Kindersley, V. C. referred. The cases in which the Courts have refused to deliver over a child when it has arrived at years of discretion to its father on a writ of Habeas Corpus are not in conflict with the rule of law that a father is entitled by the law of England to the custody of his children till they attain the age of 21. In dealing with these Habeas Corpus cases Cotton L. J., in his judgment in In re Agar Ellis (1883) 24 Ch. D. 317 at 331 (1883) says:-" But then there are cases where undoubtedly the Court declined to interfere on Habeas Corpus in order to hand the child over to the father or to interfere with it when it was of the age of discretion--the age of sixteen in the case of girls and the age of fourteen in the case of boys. For what reason is that ? When an infant is So young as not to be able in the eyes of the law to exercise a discretion, then unless that infant is in the proper custody, that is to say the legal custody of the father or the guardian appointed, it is not in legal custody, and the very object of suing out a Habeas Corpus is to have it ascertained whether the person who is sought to be brought up is under duress or imprisonment; but nobody can be placed in the position of being under duress or imprisonment if he expresses a wish to remain where he is at the time the writ is issued, that is to say, provided the person is competent to express such a wish; and, if he does, it is the duty of the law to regard it. "
3. In In re Agar Ellis (1883) 24 Ch. D. 317 at 331 the minor was a girl of over 16. In that ease it was held that the Court will not interfere with the authority of the father as regards the control and education of his children until they attain the age of 21 except (1) where by his gross moral turpitude he forfeits his rights, or (2) where he has by his conduct abdicated his paternal authority, or (3) where he seeks to remove his children, being wards of Court, out of the jurisdiction without the consent of the Court. The defendant pointed out that in the Agar Ellis case the children were in the custody of the father when proceedings were instituted by the mother. This no doubt is so. But for the moment I am only dealing with the principles of law which govern this question and I do not think that the fact that the children were in the custody of the father would give him greater rights than if they were not. In regard to the question of benefit of the infant, Bowen, L.J. in the same case, said at page 337 "Then we must regard the benefit of the infant; but then it must be remembered that if the words "benefit of the infant" are used in any but the accurate sense it would be a fallacious test to apply to the way the Court exercises its jurisdiction over the infant by way of interference with the father. It is not the benefit to the infant as conceived by the Court, but it must be the benefit to the infant, having regard to the natural law which points out that the father knows for better as a rule what is good for his children than a Court of Justice can". * * * "Except in cases of immorality, or where he (the father) is clearly not exercising a discretion at all, but a wicked or cruel caprice, or where he is endeavouring to withdraw from the protection of the Court, which is entrusted with such protection by law, the custody of the infant, as a rule, this Court does not and cannot interfere, because it cannot do so successfully, or I should rather say because it cannot do so with the certainty that its doing so would net be attended with far greater injury both to the infant itself and also to general social life". * * * "As soon as it becomes obvious that the rights of the family are being abused to the detriment of the interests of the infant, then the father shows that he is no longer the natural guardian-that he has become an unnatural guardian- that he has preverted the ties of nature for the purpose of injustice and cruelty. When that case arrives the Court will not stay its hand; but until that case arrives it is not mere disagreement with the view taken by the father of his rights and the interests of his infant that can justify the Court in interfering." Mr. Simpson in his Book on "Law of Infants" on page 131, (3rd Edition), suggests that the law as laid down in re Agar Ellis (1883) 24 Ch. D. 317 "seems to be too narrow a statement of the law as at present administered," and the learned author refers to the judgment of Fitz Gibbon, L, J., In in re Ohara (1900) 2 Ir. B. 232. The strongest passage in the judgment of the Lord Justice which could be relied upon as supporting the suggestion that the judgments in re Agar Ellis (1883) 24 Ch. D. 317 are too narrow a statement of the law is the following;-"It appears to me that misconduct or unmindfulness of parental duty, or inability to provide for the welfare of the child, must be shown before the natural right can be displaced. Where a parent is of blameless life, and is able and willing to provide for the child's material and moral necessities in the rank and position to which the child by birth belongs-i. e. the rank and position of the parent--the Court is, in my opinion, judicially bound to act on what is equally a law of nature and of Society and to hold, in the words of Lord Esher, that, ' the best place for a child is with its parent'. Of course I do not speak of exceptional cases, where special disturbing elements exists which involve the risk of moral or material injury to the child, such as the disturbance of religious convictions or of settled affections, or the endurance of hardship; or destitution with a parent as contrasted with solid advantages offered elsewhere. The Court, acting as a wise parent, is not bound to sacrifice the child's welfare to the fetish of parental authority by forcing it from a happy and comfortable home to share the fortunes of a parent, however innocent, who cannot keep a roof over his head or provide it with the necessaries of life." With all respect to the learned author, to my mind there is nothing in this passage which indicates that the learned Lord Justice intended in any way to dissent from the principle laid down in In re Agar Ellis (1883) 24 Ch. D. 317 In Thomasset v.Thomesset (1894) Probate 295 Lindley L.J. said that "independently of writs of Habeas Corpus the Court of Chancary exercised the power of the crown as parens patriae over infants and in exercise of this jurisdiction the power of the Court has always been much more extensive than that possessed by Courts of common law under a writ of Habeas Corpus." The Lord Justice then refers to a case of Todd v. Lynes which is unreported, (see page 127 Simpson's Law of Infants) where a father obtained an order for the delivery to him of the custody of his son, a young man of 17 who had been pursuaded by the defendant to leave his father and enter a monastery under the charge of the defendant. As is pointed out in Thomasset v. Thomasset (1894) Prordate 295 what the wishes of the boy were does not appear.
4. In The Queen v. Gyngall (1893) 2 Q.B. 232 Lord Esher, Master of the Rolls, pointed out the distinction between the Common Law jurisdiction under which the Common law Courts used to deal with these matters by Habeas Corpus, (I take it that the learned Judge did not mean this was the only way in which the common law jurisdiction could be exercised) and the Chancery jurisdiction, "At common law," the Master of the Rolls said, "the parent had as against other persons generally an absolute right to the custody of the child unless he or she had forfeited it by certain sorts of misconduct." The Chancery jurisdiction was a paternal jurisdiction "in virtue of which the Chancery Court was put to act on behalf of the Crown as being the guardian of all infants." I do not think that the Master of the Rolls meant to suggest that in the exercise of this jurisdiction the natural rights of the parent were not considered. All that was laid down was that a Court of Chancery could supersede the natural rights of a parent if the welfare of the infant demanded it. In The Queen v. Gyngall (1893) 2 Q.B. 232 the Master of the Rolls cites with approval the passage from the judgment of Knight Bruce v. C. in re Fynn (1848) 64 E.R. 205 S.C. 2 De. G. & Section 457 to which I have referred. I may also refer to in re McGrath (1893) 1 Ch. 143 a case in the Chancery Division decided a year before; The Queen v. Gyngall (1893) 2 Q.B. 232
5. As regards the Indian cases, this High Court would seem to have acted in accordance with the principles of the decision in In re Agar Ellis (1883) 24 Ch. D. 317 see Reade v. Krishna (1886) I.L.R. 9 M. 391 and Pollard v. Rouse, (1910) I.L.R. 33 M. 288 Certain Indian authorities were cited by the defendant. In In the matter of Saithri (1881) I.L.R. 16 B. 307 the application was for an order in the nature of a Habeas Corpus. On the facts of that case the Court was not satisfied that the application by the mother was bona-fide, the mother being a servant earning 8 annas a month and having no house of her own; and was of opinion that the mother had precluded merely by her conduct for 8 years from demanding that the child should be given up to her and that to do so would be most detrimental to the welfare of the child. In Sarat Chandra Chakrabarti v. Fortnan (1889) I.L.R. 12 A. 213 at p. the application for the custody of the minor was made not by his father but by his brother. The report says that the father had " gone to Benares to end his days there." I am unable to assume from this, as the defendant wished us to assume, that the natural right of the father had devolved upon the elder brother. In view of what I conceive to be the law I feel considerable doubt as to whether I should be prepared to follow the decision of the Allahabad High Court in Bindo v. Shamlal 219(1906) I.L.R. 29 A. 210., and of this Court in Muthuveerappa Chetty v. Ponnusami 10(1911) 22 M.L.J. 68 S.C. 1911 I M.W.N. 561 In Mookoond Lal Sing v. Mobodip Ghandar Shigha .(1898) I.L.R. 25 C. 881 the Court decided on the facts of that case that the prima facie right of the father was displaced. See also In re Joshy Assam (1895) I.L.R. 23 C. 290 In the case of re Ghulbhai and Lilbai (1908) I.L.R. 32 B.50 where it was held that the interest, well being and happiness of the minors ought to be the paramount consideration of the Court, both the parents were dead. It was suggested by the defendant though I do not think the contention was very seriously pressed that the law of England was more favourable to the natural rights of the father than the Hindu Law. I do not think this has been suggested in any of the Indian cases, and I am not prepared to accede to it. In Muthuveerappa v. Ponnusami (1911) M.W.N. 561 the learned Judges no doubt say that the texts of Hindu Law do not recognise any " absolute rights of guardian in any one" but neither does the law of England.
6. So far, I have dealt with the general question of the natural rights of the father. In this case, however, we have what purports to be an express delegation of the father's rights by Ex. A, the letter of the 6th March 1910, and what purports to be an express revocation of that delegation by Ex. A A 6, the letter of 11th July 1912. It does not seem to be material whether the letter Ex. A is to be regarded as a waiver, or an express delegation, of the plaintiff's paternal rights. If it is to be regarded as a waiver, it does not in itself operate so as to preclude the father from re-asserting his rights. If it is to be regarded as an express delegation, I think the delegation is prima facie revocable though there may be circumstances which would lead a court to hold that the delegation ought not to be revoked. In In re Agar Ellis (1883) 24 Ch. D. 317 Cotton L. J, said on page 333 " the father, although not unfitted to discharge the duties of a father, may have acted in such a way as to preclude himself in a particular instance from insisting on rights he would otherwise have, as where a father has allowed, in consequence of money being left to a child, the child to live with a relative and be brought up in a way not suited to its former station in life or to the means of the father. There the Court says ' you have allowed that to be done, and to alter that would be such an injury to the child that you have precluded yourself from exercising your power as a father in that particular respect,' and then the Court interferes to prevent the father from having the custody of the child, not because he is immoral or has forfeited all his rights, but because in that particular instance he has so acted as to preclude himself from insisting on what otherwise would be his right. That was the case in Lyons v. Blenkin (1821) 37 E.R. 842 S.C. Jac. 245 which has been cited."
7. There can be no question in this case that the agreement of March 1910 has been acted on. In Queen v. Bnrnardo (1889) 23 Q.B. D. 305 Lord Esher said that if the parent revoked the agreement before it had been acted on, it would not be binding. Lord Justice! Lindley, however, laid down the law in much more general terms. He said in page 315 " Notwithstanding such an agreement the parent would be the legal guardian of the child and she is incapable of binding herself not to exercise her rights as such. She could therefore, revoke the agreement at any moment, as could any other guardian in a similar case." Mr, Justice Wallis in Pollard v. Rouse (1910) I.L.R. 33 M. 288. stated the law in much the same way. He said on p. 292, " This delegation of parental authority to the plaintiff is revocable at any time and it is the duty of the parents and guardians to revoke it if used to the detriment of the children." This question is discussed by Mr, Simpson on p. 135 and by Sir E. J. Trevelyan in his book on ' The Law of India relating to Minors' on p. 70. The latter states the law thus:-" A father may also lose his right to the guardianship of his children, and to the control of their education where he has permitted another person to maintain and educate them, and it would be detrimental to the interests of the children to alter the manner of their maintenance or the course of their own secular or religious education. The Court will not, when he has acquiesced for some time, per nit him arbitrarily or capriciously to alter the mode of their maints nance and education, or to take them from the custody in which he has allowed them to remain." There are further observations on the subject on page 132.
8. As the authorities were very elaborately discussed in the course of the argument of this appeal, I have thought it necessary to refer to them at some length. I am prepared, however, to accept and apply the succinct statement of the law which is to be found in Lord Halsbury's Laws of England, volume 17, p. 107. " After a surrender by him (the father) of the custody has actually taken place, he can recover the custody unless his doing so would be injurious to the interests of the child".
9. The defendant contended with reference to my judgment on the question of jurisdiction that inasmuch as the jurisdiction exercised by the learned Judge was the Equity Jurisdiction given by the Letters Patent, the Court would look solely to the welfare of the infants. I cannot accede to this. I do not think that the Courts in Equity have ever professed to look solely to what appears to them to be the welfare of the infant without regard to the natural rights of the father. The judgment of the Master of the Rolls in R. v. Gyngall (1893) 2 Q.B. 232 speaks of the "supersession" of the natural rights. This seems to me to involve that the natural rights must be recognised and considered.
10. There is one other question of law which I desire to refer to before I pass to the facts. The effect: of the appointment of the father as guardian in this case, (it is the appointment of the father and not the making of the minors wards of Court, as I stated in my judgment on the question of jurisdiction, which has this effect), was to extend the period of minority of the elder boy to the age of 21. At the time the order was made, the elder boy was nearly 18/ the ordinary age of majority under the Indian Law. We were referred by the defendant to In the matter of the Petition of Nazirun (1880) I.L.R. 6 C. 19 where it was held that an application for the certificate of guardianship under Act XL of 1858 which, if granted, would prolong the minority of the infant from 18 to 21, should not be granted when the alleged minor is admittedly on the point of attaining the age of 18, unless under particular circumstances, as where very great weakness of mind was proved, or where it was shown that there was some absolute necessity for making such order, The words "absolute necessity" are of too general a character to enable us to derive much assistance from this decision. The fact that a minor is nearly 18 when an order is asked for, which will have the effect of extending his minority, is no doubt a matter to be taken into consideration by any Court which is called upon to determine whether in all the circumstances of the case such an order shall be made. The defendant asked to be allowed to adduce in evidence certain affidavits made in England which she professed to rely on by way of answer to an application to commit her for contempt, which has been made, to this Court. These affidavits are of course not evidence for the purpose of this appeal. The defendant did not ask for a Commission to examine as witnesses the parties by whom the affidavits were made.
11. At the trial and on the hearing of this appeal several questions were discussed which bore more or less directly on the question of the welfare of the boys. There is the question as to what has been called the deification of the elder boy. This is raised in the 10th issue, "Has the defendant stated that the elder boy is or is going to be Lord Christ or Lord Maitreya ?" The finding of the learned Judge was in the affirmative. There can be no question, I think, that, in the first instance the two boys were taken charge of by Mr. Leadbeater and afterwards by the defendant for educational purposes with a view to their being pent to an English University. I do not doubt that the plaintiff who had been a member of the Theosophical Society since 1882 and for some years had been a Secretary of the Esoteric Section of the Society contemplated that the education should be in accordance with the views and tenets of Theosophy. The idea that the boy was to become vested with extramundane at tributes was, I think, a later development.
12. With regard to this, Sir Subramania Aiyar, with reference to the plaintiff's consenting to the boys being taken to England, said in his evidence, p. 344:- "The great inducement, as I gathered, was that the boys were going to get an English University education which was beyond his (plaintiff's) power to give." In cross-examination he said imp. 346 "plaintiff was induced to sign the letter only for the sake of English University education. The English University education was the one thing which influenced him."
13. I do not think that the defendant questioned the finding of the Judge that, although the plaintiff was aware when he signed the letter of the 6th March 1910 (Exhibit A) that the defendant desired to bring up the boys in such a manner as to develop their spiritual powers, neither the plaintiff nor the defendant contemplated the development of the elder boy into "a vehicle" for the manifestation of supernatural powers or persons. The defendant denied in her evidence that she had ever said that the elder boy was or was to be, the Lord Christ or the Lord Maitreya; but she admitted having said that she believed that "his body would be the vehicle" for his reincarnation. In cross-examination, in answer to the question "Do you believe his body will be used by the Lord Maitreya, she said " I do, I admit....that; I do believe that the body will be used by Lord Maitreya some years hence." In an address by the defendant published in one of the Theosophical journals (Ex. P) we find a statement that " the body of the disciple Alcyone (i.e., the elder boy) has been handed over to those who have come down with him through the ages, to be trained and made ready for a similar destiny," the destiny being the surrender of the body to Christ. The defendant met the argument that the fostering of such ideas as these in a boy of fifteen or sixteen years of age would necessarily be prejudicial to his moral and intellectual welfare, by the contention that the setting before him of this ideal would necessarily have a purifying and ennobling effect. There might be something in this if what was set before him was that this destiny might be in store for him if he proved worthy of it. But I understand the defendant's evidence, to be that the body of the boy had already been selected for the purpose of becoming the " Vehicle". In paragraph 12 of her written statement the defendant says it is true that respectable people have prostrated themselves before him. He was made the head of an Order called the Star of the East (the proceedings at one of the meetings of the Order are described in an article in a Theosophic Journal Ex. C. published in February 1912) and he underwent two ceremonies of Initiation as to the nature of which there is no evidence. It may be said that all this, so far from stimulating the moral and intellectual qualities of the boy, might have an opposite effect. I do not profess to know how much there is in common between the tenets and beliefs of the Hindu Religion and the tenets and beliefs of Theosophy. I am prepared to assume a very great deal. I am also prepared to assume that the plaintiff is a pious Hindu and that he was, when he signed Ex. A, an ardent Theosophist. But there is all the difference between a man holding abstract views in a matter of this sort and being a consenting party to these views being given effect to in the person of his own son. A father may believe in the doctrine of reincarnation and may have given expression to that belief, but he may well be reluctant that the body of his own son should be the medium.
14. I do not think that the plaintiff when he signed Exhibit A contemplated that the boys were to be devoted to lives of poverty and celibacy. I do not suggest that the importance of an education at Oxford which I doubt not was the chief inducement of the father when he consented to the boys being taken to England was ever lost sight of by the defendant, but it was, I think, regarded by the defendant and by Mr. Lead beater as subordinate to the main purpose to which the life of the elder boy was to be devoted. We find the defendant writing to a correspondent (Exhibit QQ) on the 4th June 1912, " Both Mr. Leadbeater and I are quite indifferent as to Krishna (the elder boy) taking a degree. A degree is of no value to a spiritual teacher and Nitya's (the younger boy's) degree, would bring no credit to us but only to his family."
15. I now pass to a topic which I desire to discuss as briefly as possible and that is the connection of Mr. Leadbeater with the two boys. There can be no question that the defendant and Mr. Leadbeater were closely associated in Theosophical work and were in strong sympathy with each other. In this connection, I need only refer to Exhibits F. and G. Ex. F. is an extract from an article written by Mr. Leadbeater in the Adyar Album, a work which was on sale to the public in 1911 in which he says, speaking of the defendant, (p. 155) " Whether you understand or not, you will be wise to follow her implicity, just because she knows. This is no mere supposition on my part, no flight of the imagination; I have stood beside your President in the presence of the Supreme Director of Evolution on his globe and I know whereof I speak. Let the wise heat my words, and act accordingly." In Ex. G. the defendant writing in the following year of Mr. Leadbeater in a Theosophist journal says, amongst other things, " By hard patient work he has won rewards, perfecting each faculty on plane after plane, gaining nothing without hard work, as he has often said, but gaining surely and steadily until he stands, perhaps the most trusted of his Master's disciples, "on the threshold of Divinity."
16. The finding of the learned Judge, in paragraph 4 of his judgment seems to me to be supported by the evidence. The finding is " It is clear that the plaintiff's children were first selected as likely subjects for training in the tenets of the Society by Mr. Leadbeater, who professes to have peculiar powers in this respect, and that it was through his influence that the defendant was induced to take an interest in them, and that from the first Mr. Leadbeater desired to get the children under his own control and out of that of the plaintiff whom he regarded as an obstacle to his own purposes. (See Mr. Leadbeater's letter Exa. W2., W3., W4 dated December 1909 and Ex. Y, dated 3rd Jnnuary 1910)" To the letters referred to by the learned Judge I may add Ex. Y5 dated 18th April 1910. I think I may fairly say that the defendant's regard for and trust in Mr. Leadbeater was unqualified except with regard to certain opinions which Mr. Leadbeater held in regard to boys. As regards these opinions, the defendant condemned them, as mischievous, and I do not doubt that the defendant implicitly believed Mr. Leadbeater's promise that he would not preach a practice which has been described as his ' unconventional' doctrines. Mr. Leadbeater's ' unconventional' views are to be found in Exhibit XVI a letter written by him to a Correspondent on the 27th Feb. 1908, in Exhibit H, a letter written by him to the defendant on the 30th June 1906 and in Ex. J, a letter written by him to the defendant on the 11th September 1906. The defendant's attitude in the matter is indicated in her circular letter (Exhibit XIV) and in her letter to Mr. Leadbeater of the 6th August 1907 (Exhibit XII), to which he replied by his letter dated the 30th August 1907 (Ex. XIII). In cross-examination with regard to this matter, certain answers were given by Mr. Leadbeater which are to be found at p. 377, lines 12 to 29. With regard to this part of the case, the learned Judge observed in paragraph 14 of his judgment, " Mr. Leadbeater admitted in his evidence that he has held and even now holds opinions which I need only describe as certainly immoral and such as to unfit him to be the tutor of boys, and taken in conjunction with his professed power to detect the approach of impure thoughts render him a highly dangerous associate for children. It is true that both he and the defendant declared that he has promised not to express or practice those opinions, but no father should be obliged to depend upon a promise of this kind." I entirely agree.
17. It was contended by the defendant that in this matter the plaintiff acted ' with his eyes open' and was aware of the opinions entertained by Mr. Leadbeater when he consented to the arrangement which brought his sons into close relations with him. The plaintiff had been a member of the Theosophical Society since 1882. In l906 there was an enquiry with reference to certain complaints which were made against Mr. Leadbeater, before an advisory Committee. A report was made, and Mr. Leadbeater resigned his membership of the Society. There was a subsequent investigation as the result of which Mr. Leadbeater was exonerated and he subsequently rejoined the Society. The plaintiff in examination-in-chief in speaking of a circular recordmending the re-admission of Mr. Leadbeater into the Society (which I take is Exhibit XIV, said, that he voted for his admission because the defendant said that he was innocent and that he believed it at the tine because he had faith in the defendant (p. 223). He denied (247) having received the letter or ever having seen it, and said that he did not know that Mr. Leadbeater had been acquitted by any Committee and that the General Council had said that he might rejoin if he wished (p. 248). He also said that he did not remember what the defendant stated in her Presidential Address at the Convention in 1908 and that he knew nothing about the scandals in 1906. In 1906 the plaintiff was not associated with the Esoteric Section of the Society, and, although I think it is extremely probable that he knew a great deal more about the charges against Mr. Leadbeater and the consequent proceedings than he was prepared to admit in the witness-box, his story that he voted for his (Leadbeater's) readmission because he (the plaintiff) had entire confidence in the defendant does not seem to be an unreasonable one. In connection with this question one of the defendant's witnesses who was examined on Commission in Bombay and who says that he joined the Thaosophical Society nine or ten years ago said that he knew that Mr. Leadbeater had resigned the Society, that at the Convention held at Madras a resolution was passed asking him to rejoin the Society, that he did not know anything of any inquiry into the charges against Mr. Leadbeater, that he had not seen any records in connection with that enquiry and that be knew about his resignation only at the time when the resolution for his reinstatement was passed.
18. Assuming that in March 1910 the plaintiff was willing ' with his eyes open' that the boys should be closely associated with Mr. Leadbeater, and signed the letter (Ex. A) knowing that they would be closely associated with him, I am not prepared to say that it was not within his rights as a parent to take up a different attitude later even if nothing had subsequently taken place which might afford ground for suspicion that the complaints made in 1906 were not without foundation.
19. I now pass to the specific charges of immorality brought by the plaintiff against Mr. Leadbeater. They are referred to in paragraph 5 of the plaint and are described in the particulars delivered in pursuance of the order of the learned Judge. As regards the second charge I doubt whether the Statements of witnesses who speak to what Lakshman told them are evidence. It seems to me that this charge really depends upon the evidence of Lakshman who was called as a Court witness. His evidence is to be found at page 278 of the printed papers, (a previous statement in writing as to what he said he saw is to be found in Ex. VII) and it is quite clear that his evidence is insufficient to support a charge of an unnatural offence or any act of gross indecency on the part of Mr. Leadbeater. With regard to the first charge the plaintiff's evidence, if true, would establish that Mr. Leadbeater had been guilty of grossly indecent conduct in connection with the elder boy. The evidence given by the plaintiff in the examination-in-chief at the trial with regard to this is in accordance with the evidence of Mrs. Van Hook who was called by the defendant. It is also in accordance with the evidence of Mr. Bhagavan Das who was examined on Commission as to what the plaintiff told him. The defendant denied that, when she returned to Adyar in April 1910, the plaintiff told her anything about what he had seen himself. Much was said on the hearing of the appeal with regard to the alteration in the dates with reference to the charges. The evidence of the witnesses who spoke to the report made to them by Lakshman would fix the date of the incident, which is made the foundation of the charge of unnatural offence as prior to the date, when Ex. A was signed by the plaintiff. The plaintiff's case is that, although the evidence of these witnesses as to the character of Lakshman's report to them is true, their evidence is untrue with regard to the date when Lakshman said he witnessed the occurrence and that the date when Lakshman said he witnessed the occurrence was subsequent to the signing of the agreement, I need not discuss this question, because, assuming the statements of these witnesses with reference to what Lakshman told them are evidence at all which I doubt, the evidence is in my opinion altogether insufficient to establish the offence charged in paragraph 2 of the particulars. Although Mr. Lead beater was not, and could not well be represented before us, the defendant has taken upon her shoulders the burden of Ms defence with regard to these charges. She discharged the task of defending him with extreme zeal and with great ability. She sought to show that, in view of the changes in the alleged dates and of the variation in the character of the alleged offence, no Court of Law would hold Mr. Leadbeater guilty either of an unnatural offence or of grossly indecent conduct in connection with the elder boy. One thing she did not do. She did not place before the Court the evidence of the boy himself. But speaking for myself, having regard to her strong affection for the boys which I do not doubt and to the nature of the charges, I do not think she can be blamed for not putting the boy into the witness box. Of course I do not overlook the fact that the defendant no doubt realised that by bringing the boys to Madras she would have sacrificed the advantageous position which she holds so long as the boys remain in England. I will say nothing more with regard to this part of the case because I am not prepared to differ from the conclusion of the learned Judge that for the reasons stated in paragraphs 5 to 12 of his judgment the 6th and the 7th issues should be answered in the negative. I am not, ' however, altogether in agreement with the view expressed by the learned judge that it was the plaintiff's knowledge that his surrender of the rights of guardianship contained in Ex. A. was irrevocable which induced him to search for something which would influence the Court in revoking the agreement and so caused the revival of charges similar to those made against Mr. Leadbeater in 1908.
20. This brings me to the question as to how far the fact of these charges that were made by the plaintiff can be reconciled with good faith on his part and a simple-minded desire, whether mistaken or not, to do what was best for the welfare of his boys. The question as to how far the plaintiff acted in good faith is, of course, of the greatest importance with reference to the question of the boys' welfare, because it is obvious that their interests would be greatly prejudiced if they were handed over to the guardianship and custody of a man prepared to make charges of this character in connection with his boys knowing them to be false. It was pointed out that as regards the second charge the evidence, even if true, would only establish indecent behaviour and this was relied on as, showing that the charges were made wantonly and maliciously and with the knowledge they were false. It has been suggested that the plaintiff, is a tool in the hands of those who desire to injure the defendant. I may refer to the evidence of the plaintiff in pp. 239, and 278. I will assume that the plaintiff is, to some extent at any rate, being made use of by others who supply the sinews of war and who have their own ends to serve. This, in itself, is not incompatible with the plaintiff being actuated by an honest desire to do what he now conceives to be, although his views might formerly have been otherwise, for the best interests of his boys. Very great stress has been laid by the defendant upon the fact that the plaintiff made a criminal chararge of a very revolting character in which his own son was involved. I am not impressed by this. If the father honestly believed that somethings have happened which would justify the second charge, he was placed in a terrible predicament. If he sought to bring the man to justice he exposed himself to the accusation that he was bringing a charge against the child; if for the sake of saving the child he did nothing, he exposed himself to the accusation of allowing a terrible crime to remain unpunished. From the very nature of the offence he could not do anything without implicating the boy. The plaintiff in cross-examination said (p. 245) " My accusation was against Mr. Leadbeater. associating with the boys and not against the boy himself. I never said anything against my boy. My complaint was against Mr. Leadbeater."
21. It appears to me that there are undisputed facts which might not unreasonably have given rise to serious suspicions against Mr. Leadbeater. I do not say that his conduct was criminal; I do not say that acts of gross indecency have been proved; but I do say that, in my judgment, his behaviour in connection with these boys was unseemly and indecorous. In this matter I will take the evidence of Lakshman, the defendant's own servant, who is still in her service, and the evidence of the defendant's witnesses. According to Lakshman, he saw the elder boy and Mr. Leadbeater in the bath-room, the boy was naked and Mr. Leadbeater's coat was up to the waist and he had no pyjamas (witness apparently indicated the length of the shirt half-way down his thigh). In examination-in-chief, Mr. Leadbeater said (p. 367.):
Q--Through that time, 1909, I want you just to remember the succession of events about the bath-room. Where did the boys first bathe when you knew them ?
A.--At a well in Vasantatnantapam within the headquarters.
Q.--What did that lead you to do ?
A.--It eventually led me to offer the use of my bathroom in place of it.
Q.--So that they bathed in your bath-room for a time ?
Q--Now, will you say please quite frankly, what changes were introduced in their bath ?
A.--I introduced carbolic soap and hot water for the hair, and taught them to bathe in the ordinary English way so as to be really clean.
Q.--And that means as regards -the bather:
A.--That he soaped himself all over.
Q.--Dressed or not ?
A.--Quite undressed, certainly.
Q.--Were you fully dressed ?
A.--I had nothing to do with it, except on two occasions when I went in and superintended." Mrs. Van Hook said in cross-examination (p. 329)" I know that Mr. Leadbeater took the boys into his bath-room and said that he should teach them how to bathe like gentlemen." It seems to me that it did not come within the province of Mr. Leadbeater, a gentleman of over 60 years of age, as tutor and spiritual adviser of these boys to superintend privately ' and personally their bathing arrangements.
22. The character of the suspicions--to put it no higher--which the plaintiff entertained against Mr. Leadbeater was such that it may well be that the plaintiff's mind was disturbed and thrown off its balance, and that he lost the power to see things and judge things in their true proportions, and to exercise a sound judgment with reference to any conclusion which he might come to. As I have said I think the plaintiff knew a great deal more about the nature of the charges brought against Mr. Leadbeater in 1906 than he was prepared to admit. This, in fact, is the defendant's case. With his knowledge of Mr. Leadbeater's history in this connection, it is scarcely extraordinary that a man whose mind had possibly become a little morbid by reason of the atmosphere of mystery and mysticism and alleged extraordinary happenings in which he lived, should have dwelt on something which he saw objectionable and indecent though not criminal, until he became obsessed with the idea that Mr. Leadbeter's conduct in connection with these boys, had been such as to warrant the charge of an unnatural offence. " Unnatural offence" for the purpose of the Penal Code is a technical term. In its non-technical sense it only means something contrary to nature.
23. One thing is clear, that although the plaintiffs feelings towards Mr. Leadbeater in 191.0 were those of bitter hostility, he entertained for the, defendant feelings of affection and esteem which remained unchanged till July 1912. On the 23rd January, 1912 we have a letter from him to the defendant, Exhibit AA2 in which he says (page 117) " However unkind you may make your external attitude towards me appear to be, I feel quite certain that you have inside the same love and tenderness you have been showing me during the last three years." ... "I shall cling to you as a son to a mother. Once a mother you are a mother for ever." There can be no question that the plaintiff demanded the separation of the boys from Mr. Leadbeater at the end of 1911. The defendant refers to his having rushed up to her room when they were at Benares crying and robbing, and saying that the boys must be completely separated from Mr. Leadbeater. When the defendant asked ' why' the plaintiff said he could not tell her, that, he had told Mrs. Van Hook. This no doubt took place about a year and 8 months after the date, when the incident referred to in paragraph 1 of the particulars according to the plaintiff took place. Having regard to the nature of the alleged incident, the fact that the defendant was a lady, and the fact that the entertained feelings of respect and affection for Mr. Leadbeater and had placed implicit confidence in him--the delay on the part of the plaintiff in making any communication in the matter to the defendant doss not see n very extraordinary. His story that he preferred to tell Mrs. Van Hook who is a Doctor does not seem to be unnatural. The plaintiff seems to be a man of no particular strength of character, emotional, possibly somewhat hysterical, and swayed one way or the other by the impulse of the moment. His temperament would seem to be reticent and retiring. The difficulty which, according to the evidence, Mrs. Taylor experienced in obtaining the data of the biographical notes which she desired to publish about the elder boy shows the plaintiff was a man who did not desire to court publicity or notoriety. The final rupture with the defendant meant the sacrifice of a friendship which he evidently greatly valued, the abandonment of all advantages, which he would naturally hope for from his boys going to an English University, and possibly another scandal similar to that which appears to have shaken the society to its foundations in 1906. In these circumstances can it be wondered at that a man would hesitate before taking a final and irrevocable step.
24. A point was made that even if the plaintiff could not bring himself to make a communication to the defendant, he might have given information to Sir Subramania Aiyar, the Vice President of the Society. To my mind the plaintiff's explanation seems natural. Speaking of Sir Subramania Iyer, he said in answer to the question:-"Did you not know he would not tolerate such an offence ?"
He was no friend of mine nor a man much known to me. I knew he had a great friendship for Mr. Lead beater and thought him a. big man." He went on to say " I was not so much acquainted with him as to know that he would help me. I told him I had a grievance against Mr. Leadbeater.
25. The letter written by Mr. Leadbeater to the defendant on the 18th April 1910, Ex.Y5 a few days after the date when according to the plaintiff's evidence the episode described in paragraph (1) of the particulars occurred shows the existence of feelings of strong hostility as between the plaintiff and Mr. Leadbeater. We find Mr. Leadbeater writing:-"It is good that old Narayaniah has to work hard at Besant's Gardens for on the whole it keeps him out of some of his mischief and gives him less time to brood over imaginary wrongs." I do not find the explanation given by Mr. Leadbeater, in his evidence that some quarrel about the boys' food was the immediate cause of these feelings of hostility of all concerning. It is not disputed that just at this time, the plaintiff was extremely anxious to get the boys away. In all the circumstances, of this very unusual case, I am not prepared to hold that the plaintiff's conduct in connection with the charges against Mr. Leadbeater was of such a character as in itself to show that he is unfitted to be entrusted with the care and custody of the boys or that it would be detrimental to their interest if they should be restored to him.
26. I will deal quite shortly with the question whether in January 1912 the defendant gave an undertaking shortly before the boys were taken to England that they should be kept apart from Mr. Leadbeater. There can be no doubt that when the plaintiff demanded that the boys should be separated from Mr. Leadbeater at the end of 1911, when the plaintiff told the defendant that he had made a communication to Mrs. Van Hook, that the defendant refused the plaintiff's request. As to what happened on January 19, 1912 shortly before the boys were taken to England when the memorandum (Exhibit XI) was made by the defendant, with the separation of the boys from Leadbeater, the evidence is conflicting. The learned Judge was unable to hold that on that occasion the defendant declined to give the promise that the boys should never be brought into association with Mr. Leadbeater. I am not prepared to say that the Judge was wrong. Assuming that he was, it is clear that the plaintiff attached great importance to this question of separation from Mr. Leadbeater. The memorandum says-" Mrs. Besant said that he had met Mr. Narayamah's wishes on both points (what the two points were is not clear) he had asked for, she had separated the boys from Mr. Leadbeater." It is also clear that, although at that time the defendant contemplated that the boys would be with Mr. Leadbeater, at any rate for a short period, she did not so inform the plaintiff. She stated that her reason for not doing so was that she, did not desire the plaintiff to know where the boys were to be. For the purpose of withholding information from the father as to the whereabouts of the boys it was not necessary for her to refrain from mentioning the fact which would no doubt, have greatly influenced the father in connection with the question of the boys going to England. As a matter of fact Mr. Leadbeater as well as the defendant was with the boys in Sicily early in February 1912, for the purpose of some initiation ceremony in connection with the elder boy.
27. The question whether, as things now stand, the relative advantages for the boys are on the side of their remaining where they are and continuing the course of training which has been laid out for them by the defendant, or on the side of their being restored to the care and custody of their father, is one of great delicacy and difficulty. As regards financial considerations--and in reference to this matter I accept the statements made by the defendant on the one hand, and the learned Vakil for the plaintiff on the other, adequate provision would seem to have been made for the maintenance and further education of the boys either in India or in England. I do not believe that there is anything in the personal character of the plaintiff which disqualifies him from having, the care and custody of the boys. The defendant stated that there was some misunderstanding between the Judge and herself with regard to her case as to the personal unfitness of the father and his treatment of the boys when they were in his custody. She said she did not intend by any admission she made to give up her case with regard to the personal unfitness of the plaintiff, or with regard to his treatment of the boys. The only conclusion I can draw, from the form of issues and the fact that the defendant did not cross-examine the plaintiff with regard to these matters, is that at the hearing it was not part of her case that, on general grounds, the plaintiff was personally unfit to be entrusted to the care and custody of the boys. An application was put in by the defendant for leave to adduce evidence on this question, but this application was not pressed. The plaintiff appears to be a respectable Hindu gentleman and he is a retired Government servant. He was deemed by the defendant to be fitted to fill the office of Assistant Corresponding Secretary of the Esoteric Section of the Theosophical Society. At one time he was in entire sympathy with the tenets and beliefs of the Society of which the defendant is the President,. There is no evidence that he is not still. On the other hand, I do not doubt that the physical training which the boys are now receiving in England is all that could be desired. I do not doubt that they have the best of tutors for the purpose of matriculating at Oxford. The defendant had stated that her intention is that the elder boy should, with certain restrictions, take part in the ordinary life of the ordinary under-graduate. If he is not to do this, if he is to lead a cloistered existence segregated from his fellows, there does not seem much object in sending him to Oxford. Whether his life at Oxford would be a useful or a happy one, I cannot undertake to say. As regards the younger boy, it is considered desirable that he should take his degree for the purpose of competing for the Indian Civil Service, It may be that a life of celibacy, which I understand to be an incident of the " initiation " that the younger boy has undergone, may not be incompatible with a successful career in the Indian Civil Service. How for a life of poverty, another incident of the " initiation " even using the word in the sense of "inner renunciation" in which the defendant has told us they are to be understood--how far this would aid or hinder a member of the Indian Civil Service, I do not feel in a position to express an opinion. In considering this question it is of course necessary to have regard to things as they stand now, not as they stood when the father purported to surrender the guardianship of his boys. One of the many difficulties which arises in this case lies in the fact that whereas the elder boy is now over 18 years of age, the younger boy is under sixteen. I do not think that in any. order which we might make, we ought to distinguish between the cases of the two boys. It seems to me that, whatever is done, they ought to be allowed to remain together. With great eloquence and with great earnestness the defendant pressed upon us what she described as the miserable future which awaits the boys if they are to be restored to the custody of their father. There can be no question that the training which they are aow undergoing in England would make it difficult for them to re-adapt themselves to what was at one time at any rate their natural environment. Amongst other matters dwelt upon by the defendant it was suggested that ceremonies of a degrading character would have to be undergone before the boys were to be restored to caste. I fully realise all this, although I think the defendant has overstated the difficulties which will arise if the boys are restored to the custody of their father. As regards the question of the obtaining of a degree by the younger boy I should be the last to attempt to belittle the advantages of an Oxford 'degree, but there are Universities in India where academic distinction can be won and the Indian Civil Service is not the only career in which an Indian gentleman of character and ability may rise high in the service of the State. I do not overlook the fact that the defendant does not now insist upon her right to remain as guardian of the boys. She is willing that their care and custody should be entrusted to Mr. G. S. Arundale, a graduate of Cambridge and a former Principal of the Central Hindu College, who is in close sympathy with the defendant and her Theosophical work. We have been asked in the event of not setting aside the order of the learned Judge with regard to the guardianship of the, boys, that for the order directing that the boys should be handed over to the plaintiff should be substituted an order that the defendant should be substituted an order that the defendant should be restrained from doing anything otherwise than in accordance with law to prevent the plaintiff from enforcing his rights as guardian. On the case as a whole, after long and anxious consideration, I have come to the conclusion that we ought not to disturb the order of the learned Judge appointing the father the guardian of the two boys, and that we ought not to interfere with the direction given for the handing over of the boys for the purpose of making the order effective.
28. The appeal is dismissed with costs. The defendant will pay the costs of the memorandum of objections. The parties will pay their own costs before Bakwell, J.
29. Time within which direction is to be carried- out is extended to six weeks from this date.
30. I concur fully in the conclusions of the learned Chief Justice as to the law and other matters dealt with in his Judgment, and I desire to supplement the latter with reference only to certain portions of the case.
31. Firstly, with regard to what has been called the deification of the elder minor, the defendant's account of what has happened and probably may happen is in my opinion insufficient. The question is not merely of his immediate adoption of a high ideal, which he is to pursue (with whatever result) in the future, but firs Sly of his being surrounded by a body of admirers, some of whom have already, as the original written statement says, begun to prostrate themselves before him, and secondly of his being subjected at an early and impressionable age to influences, which will lead him, almost inevitably, to an exceptional view of life and an abnormal career and disable him from forming preferences of his own. The English authorities against the father's right to insist on a change of religion or of religious environment, Stourton v. Stourton (1857) 8 De. G. M. and G. 760 and In re Newton (1896) I. Ch. 740 bear no application to the case before us, because they deal only with the minor's ordinary retention of ordinary tenets, not with his assumption of an extraordinary character, to which the votaries of Theosophy or any other religion do not ordinarily or deliberately aspire.
32. Next, with reference to the age of the elder minor and the argument that it was too late for the learned Judge to intervene by requiring his return, the authority cited by the learned Chief Justice; and obvious considerations of convenience no doubt show that strong reason is necessary to justify a change, when the normal age of majority is near. But this case was exactly one, in which such reason was available to the learned Judge because the question was of the boys' removal, not merely from one educational and social position to another, but also from an environment, which, certainly before long and possibly in the few months of normal minority remaining, would determine and might arrest his intellectual and moral development irreparably. I add that I concur in thinking any separation of the minors inexpedient.
33. There remain only the questions of fact, relating to the two incidents alleged in the particulars and the alleged breach of the agreement between the parties. I deal with them at length in consequence of the volume and nature of the evidence, and because the learned Judge's conclusions as to those incidents seem to me incorrect and his treatment of the case as to the agreement inadequate in material respects. The consideration of the latter will involve an estimate of defendant's standard of conduct and motives which will be relevant in dealing with the evidence as to the incidents, and I therefore turn to it first.
34. It is common ground that the defendant was permitted to remove the minors from India in consequence of an understanding with the plaintiff. He contends that it included a condition forbidding them to associate with Leadbeater except in the defendant's presence. She denies that it did so, but admits that, if it did so, it was broken since she left Leadbeater and the minors together in Sicily about June or July 1912. The question is whether this condition was part of the understanding or whether, as defendant alleges, she promised only an immediate separation, expressly refusing any guarantee against the possibility of Leadbeater rejoining the minors in 'the future.
35. It is necessary before dealing with the direct evidence to make the positions of those concerned clear. The plaintiff is a theosophist of thirty years' standing and has been Assistant Correspondence Secretary of the Esoteric Branch at the Adyar Head Quarters of the Society. His devotion to its leaders and ordinary principles may therefore be assumed. Before his retirement from Government employment on a pension of Es. 112-8-0 per mensem he held a responsible appointment as the head of the inferior revenue service. There is accordingly some presumption in favour of his honesty; and in fact the only defect, which the defendant would attribute to him, is a liability to unthinking outbreaks of passion. His letters and evidence do not suggest that he is a man of any special intelligence or was in any particular degree fitted to cope with the difficult position complicated by considerations of religion and delicacy, in which he was placed. It will be material in the sequel that his profession would lead him into habits of subordination to and trust in European superiors which would naturally prevail in his subsequent relations with the defendant and Leadbeater. The defendant is the President of the Society; and two things are clear from the mass of literature, which has been exhibited, and from the evidence. Firstly though there may be a body of dissident opinion and though the tenets of the Society may not require it, the defendant is in fact regarded, not merely as deserving the most extreme veneration, but as almost infallible by many of her supporters. Exhibit F. exemplifies this clearly; and none the less so, because the defendant in argument expressed regret that it should have been published, since in fact it was printed at the Society's press and is sold publicly. It is a notice accompanying her portrait and it ends :-" Whether you understand her or not, you will have to follow her explicitly, just because she knows....I have stood before your President in the presence of the Supreme Director of Evolution on this globe, and I know whereof I speak." Secondly, the defendant is convinced that, if certain conditions are fulfilled, the body of the elder minor, Krishnamurti, will be used by an expected world Teacher, a reincarnation of the being known as the Lord Jesus or Maitreya. This is admitted, and it is not necessary to quote regarding it or the enthusiasm, which the defendant undoubtedly entertains for this object. Leadbeater was the writer of Exhibit F. His views on one subject are correctly described in the Judgment under appeal. Besant says that he is spiritually her equal. He holds the meetings of the Esoteric Branch in her absence. She was ready to accept as correct the description of him as an arhut, or superhuman being. In Ex. G she said that he stood perhaps the most trusted of his Master's disciples on the ' threshold of divinity,' though she attempted to attenuate the meaning of the last expression in argument, as having an esoteric sense. Leadbeater in evidence accepted a high degree of spiritual eminence, and it is not disputed that he shares defendant's views as to Krishnamurti, performed his first initiation in January 1910 and assisted at the other in June 1912. In these circumstances the plaintiff cannot be expected to support any portion of his case against these two persons with the evidence of witnesses from Adyar; and it is probable that defendant's principal witnesses, who belong to Adyar, were (consciously or unconsciously) committed to corroborate her and would adopt no higher standard than hers in order to do so.
36. What her standard of conduct is appears from the evidence as to the circumstances, in which the understanding above referred to was reached. Plaintiff's dissatisfaction had culminated on 28th December 1911 in consequence of the ceremony of the Order of the Star of the East, described in Ex. C. He had accordingly complained to Mrs. Van Hook, and he saw the defendant on the 31st December. It is the defendant's own account that he then claimed separation of the minors from Leadbeater. Her intention, she says, had been to fulfil engagements in England and to return in April and then to withdraw for Krishnamurti's second initiation to the Nilgiris or Cashmere. But on or about 13th January 1912 Wadia telegraphed that a warrant was likely to, be applied for against Leadbeaten It is explained that he meant an injunction against the defendant; but there is no reason for supposing that she interpreted the telegram in that way. Mr. Leadbeater left for England on the 13th January, although as Biswas said uncontradicted a course of lectures by him up to the 21st had been announced. Besant explains that there had been no previous idea of his going and that she sent him to find a place for the initiation ceremony in Sicily. The plaintiff had returned to Adyar early in January, and on 29th January, the day of her arrival there, she had an interview with him, at which he began by again insisting on separation from Leadbeater.
37. It is the result of this interview, which (as stated above) is in dispute. Firstly, it seems to me that the resulting understanding, whether the plaintiff's or the defendant's account of it is correct, was reached in consequence of the defendant's concealment of a material fact. It may be doubtful how far the departure of Leadbeater was due to fear of legal proceedings or to the merely theosophical necessity for resort to some place, in which the initiation could be effected without interference. But it is quite clear, not only (as the defendant admits) that she did not tell the plaintiff where Leadbeater was, but that she was intentionally silent regarding him. The plaintiff says that on the 19th January she told him that she had on his account sent Leadbeater to go where he liked, and there is nothing to contradict this or make it improbable. In Ex. A. A. 1 on the 13th January, the date of Leadbeater's departure, she referred to the plaintiff's statement that he would be satisfied, if she took the boys to Europe and said that despite the unnecessary expense and for the sake of peace she had taken tickets for them. On this evidence two points call for notice. It would have been one thing for the plaintiff to allege that an immediate separation had been effected and that, no special or early return of Leadbeater being known as probable, she would give no undertaking for the future; but it was quite another for her to make that reservation, as she did, with the full intention that Leadbeater should rejoin her party within four months and should be closely associated with it. And further in Ex. A, A, (and there is nothing to modify this in the evidence) she made a pretence of having complied with the plaintiff's wishes and taken the boys to Europe against her will, when thereby she was really effecting the object she had in mind from the beginning. She may have been able to justify this conduct to herself in the light of her great enthusiasm. But, judged by ordinary standards, she deviated from common honesty.
38. And this is material, not merely with reference to her duty to the plaintiff and in connection with the decision as to the terms of the understanding, but also as regards the presumption in favour of her trustworthiness, on which we have been invited to act in other connections. The understanding was arrived at on the 19th January 1912 by the plaintiff and the defendant in the presence of Sir Subramania Iyer, Vice-President of the Society and three other Indian gentlemen, who either hold office or are resident at Adyar. There is on the one side the evidence of the defendant and these gentlemen that a reservation as to the future was made, and on the other that of the plaintiff and the fact that Ex. XI, purporting to be a note of what was agreed on and signed by the defendant and her supporters, contains no reference to any. It has been pressed on us in argument that the learned Judge's finding for the plaintiff entails that Sir Subramania Aiyar 'and these gentlemen deliberately committed perjury, and it therefore cannot be adopted. But it is quite unnecessary to take this extreme view. For, the question is only of the result of an informal conversation, regarding which honest mistake or failure of memory might easily occur. It may be that there was some talk of the future, as all the defendant's witnesses allege. But it does not follow that any terms of the understanding dealt with it, and it is unlikely that any did so. Firstly, there is the improbability that the plaintiff, who made a concession as to association with Leadbeater in the defendant's presence, would have yielded further to an extent, which deprived the understanding of all practical value. For, it is admitted that there was an understanding and not an unconditional surrender. Next, it is unlikely that this reservation, the plaintiff's consent to which was as much a concession as any other term of the agreement, would not have been placed on record in Ex. XI; and it is impossible to understand the defendant's statement that she wrote this document in order to make her position clear and took down the one point she wanted legally. The purpose for which Ex. XI was drawn up, is not clear. For it was not read to the plaintiff, and he was not asked to sign it, though according to Sir Subramania Iyer it was being written by the defendant, whilst the conversation went on. It is significant that it was signed by no one until after the plaintiff's departure. Sir Subramania Aiyar says that until the defendant read out. the draft, he did not know that she was making a record at all. He is clear that the reservation was part of what was said, and explains that the document was intended only to assist the defendant's memory, not to be an accurate record, admitting that he did not consider the effect of each of its sentences. He and the other witnesses are uncertain even as to the two points mentioned in it. None of these witnesses is alleged to have taken part in the conversation except Sir Subramaniam who repeated some of the defendant's questions and obtained answers to them from the plaintiff.
39. The evidence in fact indicates, and it is also probable, that the defendant alone really conducted the transaction, Sir Subramaniam and the others taking no independent part and in consequence of her ascendancy over them accepting (more or less consciously) her account. This does not rest merely on the general consideration as to her position already referred to. Her letter dated the 28th February 1912 to the witness Wadia was admitted by consent in this Court. It was produced by her for another purpose. But it shows that a month later during her voyage she thought it necessary to call on him " to make a mental note" that she had made no promise to the plaintiff as to the future. This letter came before the Court accidentally. But if the defendant thought it legitimate to make such a suggestion to one of her witnesses, it is possible that she has done so in writing or orally to others on this and (it may be added) other parts of the case. Something may have been said during the conversation of the future. But in face of the omission of reference to it from Ex. XI and in view of the defects in the defendant's evidence, I must accept the learned Judge's finding that no reservation regarding it was part of the understanding and that consequently the understanding was broken.
40. The learned Judge's discussion of the two incidents specified in the plaintiff's particulars ended only in a decision that they did not occur, and it is only by implication that he can be held to have decided that the plaintiff did not allege them honestly and in good faith. For his judgment does not deal separately with the latter point. I at once agree with his conclusion that the incidents were not established, since as regards each the direct evidence was that of one witness only and the corroboration for it was insufficient to justify an affirmative finding. But the plaintiff's good faith cannot be dealt with so shortly. Each party however claims a decision on it. The Plaintiff maintains it on the ground for reversal of the learned Judge's order directing him to pay the defendant's costs, against which he has filed his memorandum of objections. The defendant is interested in negativing it on the ground that his conduct in intentionally making cruel and unfounded charges against the elder minor will disqualify him for the guardianship. She further, if I understood her rightly, argued that the making of the allegations, even if they were sustained or if they were held not to be proved, would alone be sufficient to disqualify the plaintiff, in the former event because the result might Be the elder minor's prosecution and in the latter because of the pain to his feelings. But, apart from the improbability of any prosecution at the instance of either the Crown or any individual except that of Leadbeater, the principal offender, it is sufficient reason for restricting the enquiry to the question of good faith that otherwise no parent or guardian would take action except at the risk of losing the custody of his child or ward.
41. It had been observed that the learned judge dealt with that question only by implication and without separating it from the question whether the incidents alleged actually occurred. It is possible to deal shortly with one matter, which influenced him, the changes at different stages, in the way in which the incidents were described. Those incidents can be referred to conveniently as plaintiff's and Luxman's, since plaintiff or Luxman was the only eye witness in each case. The three stages in question are the original and amended plaints and the particulars given by the court's direction after issues had been framed. It should be noted that there is no question of any prejudice to the defendant, since the evidence went to establish, if anything, less, not more, than was alleged in the particulars the final form of the plaintiff's case. It is not necessary to set out the actual variations, since they will be clear on reference to the documents. No doubt it is remarkable that plaintiff, who had legal advice from the beginning, should have vacilated as he had done. But it does not follow that the conclusion as to his good faith must be affected. These changes in his case would, if they were due to concoction, in no way improve it. His incident had been described by him to Mrs. Van Hook (vide judge's notes for details) in December 1911, that is before the first plaint, and the description given there agrees with the particulars. As regards Luxman's incident we have not plaintiff's account of the earliest information he received, that given him by various defendant's witnesses at Adyar, because (rightly or wrongly) a question to him on the point was disallowed. But we have it from Bhagavan Das examined by plaintiff on commission that Luxman's replies to his questions in December 1911 involved that Leadbeater and Krishna were seen together in suspicious and indecent circumstances, though there was nothing amounting to an attempt to commit an unnatural offence. Bhagavan Das is not one of defendant's sympathisers, but she does not suggest that he would give false evidence intentionally. The point is that throughout the trial, when actual details have been in question, plaintiff has not claimed that a stronger case has been established than that to which he was committed by his own and Luxman's statements in December 1911 before his relations with defendant became strained, or his pleadings were drawn or the variations in them began. It is next material that even in cross-examination he attempted to maintain that his description of both incidents in the particulars was correct, when it must have been obvious at least to any person acquainted with the law, that such an attempt would be futile. And in these circumstances the simplest explanation and that which I accept is, not that these incidents have been intentionally described wrongly in a useless manner which could only frustrate any illegitimate object, but that plaintiff and his advisers really spoke of unnatural offences and of an attempt to commit one loosely and ignorantly. The fact that plaintiff had been a Magistrate does not make this improbable. During my. own service as Session Judge and Magistrate, no charge of an offence of this description has come before my. own Court or any Court subordinate to it; and such charges are so rare in Madras that plaintiff may very probably have never had to apply his mind to the law relating to them.
42. The question of the fact is not, whether plaintiff had evidence on which he could reasonably expect to convince a Court of the truth of his charges, but whether he honestly believed when he made them, that they were true. The defendant's case is that they are not true and that they may be founded on two occurrences, which took place on dates earlier than those given by plaintiff. Thus in the particulars the dates assigned for plaintiff's incident is the second week in April 910 and in argument an attempt has been made to fix it on the 16th. In the original plaint the date was given as March 1910. Defendant would identify the incident with that happened late in 1909. Lakshman's incident is referred to in the particulars as iri December 1910. The first plaint fixes it indefinetely by reference to other facts as before August 1910 and the second is even more obscure. Defendant contends for December 1909. If the question were only directly of plaintiff's good faith, I should not consider the date or the changes in them important. It is not alleged and it is not likely that plaintiff keeps a diary or has other means of fixing the date of his own incident; the limits, within which his dates for it are contained, are not inordinately wide, for the vague recollection on which he had originally to rely. As regards Lukshman's incident he heard only secondhand, and could not obtain firsthand information. The importance of the dates is in connection with defendant's suggestion that plaintiff has deliberately postponed the incidents, until after he made her guardian of the minors under Exhibit A in order to avoid the necessity for explaining why he did so with full knowledge.
43. Now it is material first that plaintiff has adduced all the evidence available to him. It is not likely that there will he much direct evidence as to what eye witnesses saw or might think that they saw in a case of this nature, since numerous eye witnesses are not likely to be available. From Lukshman no evidence of value can be expected, since he was and is defendant's servant and subject to her great influence. The circumstances involve no probability, that Leadbeater, the elder of the two principals, would make any admissions at the time, which would be admissible as evidence. Only denials could be expected from him in evidence, and cross-examination was not likely to be effective, when no second account from a witness on his side Was available for comparison. Such a second account could have been given by the elder minor, Krishnamurthi, and to some extent, as regards plaintiff's incident by the younger also. But defendant opposed an adjournment of the trial in order that they might return to Madras to give evidence. I do not detail the reasons she gave in argument for this opposition, (because whatever their importance to her) they included no suggestion, that the minors could not be produced by her, no denial of the relevancy or importance of their evidence and no legal justification for her depriving plaintiff and the court of the assistance it would have afforded. It must therefore be recognised that plaintiff was in this respect disabled through no fault of his. Necessarily therefore the evidence available to him is only his own and that of persons who heard Lakshman's story at first hand or can speak to his and Lakshman's conduct as consistent with what each is alleged to have seen. Evidence of the best description he would not obtain easily since, it would be given by those, who were at Adyar at the time. If such witnesses left since, the suggestion would be that, they had quarrelled with defendant, as it was in the case of one, whom plaintiff examined, S.V. Subramaniam. If they remained there till the trial, they would have been liable to the exercise of defendant's influence, to which I have already referred in connection with the understanding. In fact, of the eight witnesses on defendant's side, regarding this part of the case, five gave evidence in that connection, and one of the remaining three is a pariah butler who is still in her service.
44. Firstly, as regards plaintiff's incident one thing disclosed even by this evidence, to which the learned Judge seems to me to have paid insufficient attention, is that something of the importance of and consistent with, what plaintiff alleges happened at the time he referred to. In April 1910, defendant was absent from Adyar at Benares. Daring that month, as Leadbeater said, he sent a telegram to her "Antares giving trouble, come at once," Antares is the name by which plaintiff is known in Theosophy. The original has not been produced, and there is only Leadbeater's recollection that it was sent on the 19th. It is certain only that it was not received by defendant later than that date, since she replied to it by Ex. Y 6. On the 18th Leadbeater had in Ex. Y. 5 referred to plaintiff as having a bad fit of his insanity "two days earlier." It is on this that plaintiff suggests the 16th as the date of his incident; and it was only, when discovery of Ex. Y. 6 was given, that this date could be ascertained. Plaintiff's writing a "long and crazy letter'' to the witness Wadia is also mentioned; but Wadia cannot remember receiving it. On the 20th in Ex. Y 6 Leadbeater told defendant that all was quiet again and referred to the assistance of Wadia and the Judge, Sir Subramania Iyer. On the 21st in Ex. Y. 8 he mentioned the recent "disturbance" and the gratitude of his superhuman guide for the help they and Clarke, another Theosophist, had given. Three Indian residents at Adyar say that plaintiff had a cart ready on the 19th morning and was about to remove his sons, when Sir Subramania Iyer was brought by Clarke and pacified him, offering to take the boys to his own house and induced him to join in a telegram to defendant, that she need not be anxious. When so much is admitted, it is easy to accept the evidence of plaintiff's witness, Subramaniam, that he and others were asked to guard the boys' room at night on the 17th or 19th, though Wadia denies this. That something of considerable gravity, involving opposition to Leadbeater, took place about the 16th, is clear.
45. It is significant that though Leadbeater's letters to defendant are not alleged to be incomplete, they do not contain the explanation for what occurred on which defendant mainly relies here; nor, though defendant was asked in the telegram to take a three days' railway journey, is there anything definite as to the form, assumed by the disturbance, or as to the attempted removal. Ex. Y 5 refers to one of the explanations, on which defendant relies, as separately or cumulatively sufficient, plaintiff's discovery that the boys were taking milk in the morning. As Leadbeater says plaintiff had known of their doing so for some time, and it is inconceivable that this was his motive. Defendant admits that she was told nothing regarding the milk on her return. There is then the fact that Leadbeater had taken the boys to the Seven Pagodas, on a two days' excursion, starting on the 10th without plaintiff's permission. But that would not account for the strong measures taken by him or for the explanaion not earlier than the 16th. The chief explanation suggested is an incident relating to the boys' evening meal on the 18th, described by Leadbeater in his evidence. But this again does not explain the fit of madness referred to in Ex. Y5, as having occurred on the 16th; and, as Leadbeater describes it, it was wholly insufficient to account for what followed. In order to do so defendant thought it fair to ask this Court to assume that the boys were incited by Leadbeater to break their caste at their meal by eating improperly cooked food, a proceeding, at which plaintiff would naturally be indignant. It is astonishing that she should have done so when she had made no such suggestion before the learned Judge in evidence or otherwise, and when, as Mrs. Van Hook's evidence shows, the boys had already taken food cooked by her. Of the witnesses, Wadia and Sitarama Sastri referred, but only generally, to the Seven Pagodas and the evening meal; and Subbiah Chetty, who mentioned neither, gave a different account, to which I shall return. Sir Subramania Iyer said that next day plaintiff complained to him only of not being allowed to take the boys to their meal, though he also may have said that they were too much with Leadbeater. There is, of course, no doubt that his evidence is correct; and plaintiff's failure to impart his real grievance to Sir Subramaniam requires explanation. Sir Subramania Aiyar himself said, however, that from what he heard in his house he thought it was a very grave matter, but that, when he reached the spot, plaintiff had quieted down. It is possible that those on the spot induced plaintiff not to discredit them and Leadbeater, by complaining to a superior, who would have insisted on full enquiry. It is further possible that a person of plaintiff's comparatively low standing feared to speak out to a gentleman, who had officiated as Chief Justice of this Presidency, but whose impartiality he may have ignorantly suspected owing to his association with defendant and his admitted friendship with Leadbeater since 1884.
46. To support the occurrence of an earlier incident, which defendant, suggests as the foundation for plaintiff's accusation, there is (1) the evidence of Wadia, Sitarama Sastri and Subbiah Chetti regarding his statements to them as to an occurrence on some date earlier than April, 1910, and Exhibit A, the letter of guardianship; (2) defendant's own evidence of a conversation between her and .plaintiff about February, 1910, As regards (1) the evidence of these witnesses is very general as to dates, and they took singularly little interest in the matter, no one thinking it necessary to tell Leadbeater what was being said against him. Sitarama Sastri was told by plaintiff of the incident, when it occurred. But his only action was, when consulted as an old friend regarding the draft of Ex. A, to advise him " to make Leadbeater's matter certain." He and Wadia say that they heard of the incident before Ex. A. But Subbiah. Chetty, who admitted that he was told by plaintiff in April, 1910 (consistently with his case) of his having seen something nasty with Leadbeater, said once that plaintiff referred to it as on the previous night and afterwards that he referred to it as three or four months earlier. These witnesses made a point of plaintiff's having mentioned seeing the younger minor shivering in the verandah, this being consistent with a date in December. But this shivering has never been part of plaintiff's own account; and if the reference to it had not been introduced by the witnesses intentionally, it may be due to their mistaken adoption of " shivering" as the translation of some vernacular word in the conversations, which have probably taken place between them. It is material that the Tamil for shivering and trembling is the same. Evidence of this description from witnesses who are (as already observed) subject to defendant's influence and suggestions is useless. Defendant has relied also on the statement of plaintiffs witness, Bhagavan Das, that plaintiff told him of the incident as about two years before their conversation, which was not earlier than December, 1911. But this also is highly indefinite. So far the attempt to support any reference by plaintiff to a date earlier than Ex. A has failed. As regards (2), the conversation with defendant' herself, it can be considered after Lakshman's incident) to which also it referred has been dealt with.
47. As regards that incident plaintiff is, of course, at a great disadvantage, because he heard of it only at second hand sometime after its occurrence, and because the fact that Lakshman was and is defendant's servant has been good reason for plaintiff's not obtaining information from him direct. The evidence as to what he saw, which has been available to plaintiff is therefore necessarily (in the absence of the minors) that of persons, who can say what Lakshman told them, either at the time of the incident or later, that is of those who may be called conveniently the Adyar and Benares witnesses, the latter referring to a statement alleged to have been made by Lakshman in March, 1912. Something was said in argument of the admissibility of each of these classes of evidence in 'plaintiff's faivour. (The incident alleged inplainsiff's particulars was in December 1909. The Adyar witnesses, it was suggested, spoke to Lakshman's previous statements only as to a different incident one referred to by them as earlier than March of that year, a date covered by Lakshman's present indefinite testimony; and it is accordingly argued that the evidence of these witnesses does not corroborate any testimony by Lakshman regarding the incident which plaintiff desired to prove, and is therefore not admissible under Section 157 Indian Evidence Act. The answer as regards these witnesses is that, whether the occurrence of the incident or plaintiff's good faith and information regarding it are in question, he relies, not on the date statedly given, but on his ability to show by reference to other parts of the depositions that it was given falsely, if not, that the date really entailed by other portions of this evidence is affirmatively consisted with his case. In the former event statements by Lakshman as to an exceptional incident, which is not alleged to have been rep sited and which could not have been confounded with any other, would be available; and the data given being disproved and the question of the right date at least open, corroboration of some value would remain.
48. The Benares witnesses spoke to no statement by Lakshman at or about the time when the incident is alleged to have taken place, and therefore their evidence would not have been admissible with reference to its occurrence. It would, however, it seems to me, have been on the same footing as that of the Adyar witnesses with reference to plaintiff's good faith, the connection in which, it is to be supposed, the learned Judge required plaintiff to enumerate these witnesses in his particulars. It is not necessary to deal further with the evidence of the Benares witnesses, because the circumstances in which Lakshman's statements are alleged to have been made to them, render it intrinsically useless. In January 1912, defendant telegraphed to her Benares agent to exclude Lakshman from her bungalow, and Laksbman came in distress to one Upendra Babu, who was at the time with the witness, Miss Edgar, and told the former what the latter afterwards understood to be the story of his incident. Again, in March, 1912, he came to speak to Upendra in the presence of Miss Edgar and two other witnesses, Shanker and Biswas, on business, and again told them his story. Mis Edgar does not know the Vernacular in which Lakshman spoke. All of . these persons are of the party opposed to defendant in the Theosophical Society. They made no record of what Lakshman said. In these circumstances their recollection is of insignificant value. I therefore do not detail the peculiarities of their Version. They may be due to their or Lakshman's bad memory, or to an attempt by the latter to mislead the opponent of his mistress.
49. It is another of plaintiff's disabilities that, when he was under examination the question of his good faith appears to have been lost sight of and, presumably on that account, defendants objection to his being asked what the Adyar witnesses told him was sustained. There is then on plaintiff's side only the evidence of Bhagvan Das, which is admissible in the same way as that of the Benares witnesses, though it must be distinguished from theirs as to credit. For his status is higher, and though he is sceptical as to recent theosophical developments under defendant's direction, he is not openly opposed to her, and his interview with Lakshman took place in December 1911, before plaintiff had become openly hostile. Lakshman, he says, told him that in the previous year he had seen, not any attempt to commit an unnatural offence, but Leadbeater and Krishnan in sufficiently indecent and suspicious circumstances. The date referred to, is, it should be noted, consistent with plaintiff's case. For further evidence, it has been pointed out, plaintiff must necessarily rely on persons, who are adherents of defendant, the Adyar witnesses already referred to in connection with his own incident and the understanding and Mr. Schwarz, Treasurer of the Society and a member of the Order of the Star of the East. All of them are accordingly in this matter also subject to defendant's influence, and such suggestion from her of any fact, of the truth of which she has persuaded herself, as one of them, Wadia, actually received regarding the understanding in the letter of 28th February, 1912, already referred to. And in these circumstances it is surprising how much is available from them in support of plaintiff's case as to the date and the facts.
50. It is no doubt the case that none of the witnesses, refers to any detailed statement as to facts by Lakshman and the fact that some of them did not know his language may be material. But on the other hand it is difficult to see why Lakshman should have refused details to Wadia, who did know it and asked for them especially if the incident was of the comparatively innocent nature, which (it will be seen) defendant suggests. And it is significant that none of the others hinted at any doubt as to the correctness of his understanding of what occurred. Wadia said that in November or December, 1909, Lakshman came and told him in the presence of Subbiah that a bad thing had happened, but would give no details. As Wadia could not get them from Lakshman, he went to Schwarz, who (he understood) had also been told. Wadia explained. " I have common sense and, when he said that a bad thing happened in Mr. Leadbeater's room, I connected with it both Mr. Leadbeater and the boys." Ranga Reddi's account is very short; he does not understand Hihdtistani, but recognised the word " karab" (bad) and he and Subbiah, who was With him understood that Lakshmah had seen something bad of Mr. Leadbeater with the boys. He fixed the date as November or December, 1909, but gave no reason' for doing so. According to Subbiah also at the same time Lakshman came and told him that the old gentleman (Leadbeater) did a bad thing, explaining what he meant that Krishnan was without his clothes in his room. He was clear that this could not have happened after June, 1910, because he was then transferred to another section of the Government Department in which he is employed. He admitted, however, that in the intervals between his tours he was at Adyar. It should then have been possible for him to show that he was not there at the time alleged by plaintiff for the incident by official records, but he has not done so. When plaintiff told him of his own incident in April, 1910, he told plaintiff of Lakshman's as similar to it. Schwarz, regarding whose ignorance of Hindustani there is n6thing in evidence, thought that Lakshman spoke to him two or three years before he gave evidence in April 1913, but finally adopted the latter figure. He deposed that Lakshman told him of questionable conduct of Leadbeater with the boys and according to Wadia described the incident to him as something sexual. I have, as far as possible, adopted the actual words of the witnesses, because it is important that the great extent, to which they corroborate plaintiff's allegation of an immoral occurrence should be understood. As to the date their statements include nothing by which they can be checked and are of small value when the independence of the deponents cannot be assumed.
51. It is in Lakshman's own evidence that the clearest indication as to the date is to be found. He says that he told the witnesses just referred to what he had seen the day after. But their evidence contains no suggestion regarding such delay. If it took place, the fact only accentuates his opinion as to the gravity of what he saw. His account now is that Krishna was standing naked in front of Leadbeater, who was naked below his shirt, and had Ms knee on a chair and his hand on Krishnan's head, and differs only from the evidence of Bhagavan Das as to his statements in December, 1911, by the omission of the detail as to Leadbeater's hand. He could not give the year or month in which this happened. He also, however, said that he then thought this was a sinful action, and that it was so bad that he told Subbiah and the others. He then went on, and this is most important, " Krishna had great name and fame, and what would people think if they saw this ? I thought they should not have been together in that room. I knew that Krishna was being brought up by defendant." Now, so far as Lakshman's presence at Adyar is concerned, he was there in December of both 1909 and 1910, and plaintiff's date is not more probable than defendant's. But this statement by Lakshman fixes the incident he saw as about the latter, since it entails that it cannot have been earlier than March, 1910. It was only in the course of December, 1909, that defendant first saw the boys on her return from her tour. Leadbeater had no doubt already proposed to be responsible for their education in England. But, as he says, he merely thought that " they would be useful for any philanthropic work." There is nothing to show that Krishna's vocation was common knowledge until at least shortly before his initiation early in January, It was only in February that defendant discussed her proposal to be the guardian of the minors with plaintiff and only in March that she became guardian under Ex. A. It is therefore impossible for Lakshman to have regarded Krishna as having great fame or being brought up by defendant at the time, which she alleged, December, 1909. He must, therefore, have seen what he saw, as plaintiff contends, in December 1910. This is the only important fact in his evidence or in Ex. VII, a statement giving an account of the incident similar to that given above, except that Krishna's naked condition is not mentioned. It is very short and was made in defendant's presence on 29th January, 1912. The suggestions against its authenticity were not in my opinion established; but it added nothing to the case on either side.
52. I now turn to defendant's case that two innocent occurrences prior to March, 1910, are the foundation, on which plaintiff's com- plaints as to his own and Lakshman's incidents have been based. It is further part of her case that plaintiff spoke of those two incidents to her in February, 1910, in the course of a conversation as to her assuming the guardianship. She says that he described Lakshman's incident much as Lakshman does now, except that he did not say Leadbeater's hand was on Krishna's head and that he did not tell her what he had seen in Leadbeater's room but only that it was something nasty, which he would not particularise. In the end he said it was not necessary to question Leadbeater and signed Ex. A. without further demur. Plaintiff denies such a conversation in February, 1910, but admits one after her return in April, 1910. He then, he says, told her that he had seen Leadbeater doing something nasty with Krishna, that the former had a nasty sexual appetite and that he must be separated from the boys. Defendant in consequence promised that the boys should have separate bath-rooms and should study in her room or verandah.
53. Firstly as so the conversation. If the finding is that it took place in February, 1910, the prejudice to the plaintiff's case will no doubt be serious. The burden of proof of this date is on the defend ant and there is no evidence except hers to set against the plaintiff's denial. She has produced no memorandum or entry, in her diary to show that such a conversation took place in February. The plaintiff no doubt is not alleged to have insisted on any reference to Leadbeater at the time. But, whatever his exact words as to Leadbeater's conduct, and I do not think there is much material difference between the defendant's version of them and his, it would have been natural for her to mention the matter to Leadbeater at once. Such mention, I should have supposed, would have been particularly admissible in view of Krishna's vocation and Leadbeater's past history, and it may be observed here that the admitted conduct not only of the defendant, but also of all the Adyar witnesses. In hearing allegations by the plaintiff and Lakshman regarding Leadbeater's relations with Krishna without taking any particular action must attract suspicion, if not censure since they all must have known of the former's expulsion from the Society and its cause. The defendant however is not alleged to have made enquiry of Leadbeater at the time or, as will be stated, until December, 1911. Lastly there is the fact that this conversation and its date were referred to first in the defendant's evidence. This is important, because in her original written statement, which was full and argumentative she referred to the plaintiff's objection to her taking over the boys, as based only on Leadbeater's growing influence over them; and in her shorter amended written statement she said that he never complained of any impropriety on the part of Leadbeater or objected to his associating with his sons. Her explanation, that she did not connect the plaintiff's admitted reference to something nasty with any impropriety or indecency is weak. Her conduct in connection with the understanding showed that no presumption could be drawn in her favour, when the fate of the minors was in question. In the circumstances it is not possible to disregard the plaintiff's denial and find in favour of this conversation or its date on her evidence. The conversation in April 1910, which plaintiff alleges, is important in connection generally with his good faith and fitness for the guardianship, though not directly as evidence regarding the occurrence of the incidents. It may not be clear from the evidence whether it was or was not followed by a change, immediate or deferred, in the boys' bath room or the separation from Leadbeater during their studies, which plaintiff says that he obtained. The latter would probably have in any case followed on the defendant's return to Adyar to some extent. That a conversation, in which Leadbeater's connection with the boys was referred to, took place is admitted by the defendant. As to its terms only her statement and the plaintiff's are available and therefore no finding is possible except that it is consistent with the probability and the circumstances that the plaintiff's account is the nearer to the truth.
54. The defendant's explanation for the plaintiff's charges, that they are founded on two innocent incidents, which actually occurred, can be dealt with shortly. She says that later she asked Leadbeater what could have given rise to unpleasant ideas, and that, when he could suggest nothing, she asked whether he had ever washed the boys. She speaks of these enquiries as made after she heard of the plaintiff's complaint to Mrs. Van Hook and that is consistent with the date accepted by Leadbeater, December 1911. But there is nothing to explain why she suggested this washing as the explanation. For Mrs. Van Hook's account of what the plaintiff said to her in no way indicates it and she does no t refer to any other account as in her possession. Leadbeater admitted that he had twice washed Krishna in English fashion, that is raked, and had cleaned his head with carbolic soap; and this, it is urged, is really what the plaintiff and Lakshman saw. Now Mrs. Van Hook says that Leadbeater did take the boys into his bath room and he would teach them to bathe like gentlemen, though there is nothing to identify the occasion she spoke of, with either of the two, to which Leadbeater referred. But it is rather improbable that an English gentleman, aged sixty five like Leadbeater, would himself perform and not merely supervise, this menial and unpleasant work. And it is remarkable (1) that on each of the two occasions of his doing so he should have been interrupted by a person, who misconstrued what was going on; (2) that he should have had nothing to say in evidence of either interruption and should have apparently not noticed it. If, however, this story is not a mere after thought, and if these washings really took place, it is still impossible to connect them with the plaintiff's and Lakshman's indignation. Manu, we have been told, forbade one man to bathe or appear naked in the presence of another; but we have been shown no reason for believing that that like others among his prohibitions, has not lost its original sanctity, or is at the present day regarded as more than a rule of good manners and ordinary decency. The breach of such a rule would so far as I am aware and so far as we have been shown, entail no caste or religious disability and would in the case of a boy of fifteen be met appropriately by a warning or slight correction. Certainly the importance of the matter would be utterly incommensurate with the effect produced on Lakshman, a Sudra and not likely to be punctilious [in such matters, who yet thought it necessary to give information, not only to the more important Hindus, in the compound, but also to Schwarz a European. There is the further improbability involved in his failure to inform the plaintiff, the fittest person to administer the warning above referred to, or to take the simple course of pointing out to Leadbeater that his proceedings were open to objection or asking some more important person to do so. This explanation, as a whole, in fact attracts additional suspicion to Wadia's statement that Lakshman would not particularise what he had seen, and to Lakshman's introduction into his otherwise extremely meagre evidence and statement, Ex. VII, of a reference to the position of Leadbeater's hand on Krishna's hair, as designed to corroborate the story that it was being cleaned : --If this part of the defendant's case is in any degree true, it is still impossible to connect it with either plaintiff's or Lakshman's incident.
55. That closes such detailed examination of the evidence as seems to me practicable or necessary. Other matters no doubt, weighed with the learned Judge, the exclusion by the routine in force at Adyar of the possibility that time could be available for the incidents and the publicity of Leadbeater's room. Something also has been said here of the impossibility of the plaintiffs having seen what he alleges from where he says that he was or with the light available. But all this comes to very little. The routine was spoken to as comprehensive. But it cannot be presumed that it was invariably observed with absolute or even comparative punctuality by every one. The incidents were short, and as regards one of them it was Leadbeater himself, who in the defendant's absence was responsible for strictness. Regarding the actual publicity of his room and the risk he would run at the time in question there is no definite evidence. The argument from the plaintiff's inability to see what he alleges appears to me to be available, only because insufficient attention was paid to the point at the trial. For his ability to see Leadbeater and the boy depended on exact position at or near the doorway, regarding which nothing is available or would be expected and when he maintained that, though the doors were shut, there was sufficient light, the matter was not cleared up by his being asked to reconcile the two statements, one possibility being that the doors he referred to were the wire doors, also mentioned.
56. There remains the argument against plaintiff's case and his good faith, that if he had had the knowledge he now alleges of both incidents it cannot be supposed that he would have allowed Leadbeater to continue to associate with his sons and would not have attempted to terminate the guardianship earlier, and in the alternative it is urged that if he acquiesced with full knowledge, he is unfit for the guardianship himself. It is no doubt possible that his consent has been in some degree foolish and weak. But I do not think that the conclusions proposed follow from what has been proved. It would have been useless earlier, as it has proved useless now, for him to make his charges against a person of Leadbeater's position with only his own evidence in support of one of them and only that of a hostile witness in support of the other. And it is to be doubted from such indications of the defendant's attitude, as this case affords, whether anything less than the formal establishment of the charges and even the order of a Court would have induced her to abandon the minors. It was only after the process of deification of Krishna had made progress and its effects and tendency made grew clear, that material of any practical value for a repudiation of Exhibit A and an attack on the defendant became available; and it was on that process reaching the point indicated by the ceremony described in Exhibit C that the plaintiff took action by his disclosure to Mrs. Van Hook and conversation with the defendant. Before and after that he had to weigh advantages, those to be secured by acquiescence being considerable. Probably for sometime at least he was gratified at his sons' repudation and the respect he himself enjoyed. He had also to consider the great material advantages to the minors and himself from the defendant's assumption of responsibility for their future. Throughout on the occasions already referred to he had been asking for their separation from Leadbeater and he mentions others, on which he did so, though there is nothing specific regarding them. He obtained what he might fairly regard as equivalent to such separation, the defendant's protection of the minors by their constant association with her, except for short periods, from April 1910 until December 1911. It was such a separation, which he pressed for in January 1912 and which in qualified form he thought he had been promised. When he found that the defendant's promise had been broken in Sicily, he took action by his notice of the 11th July 1912 without I think, undue delay. His suit was brought in October. It is suggested in the judgment under appeal that his charges are merely a revival of those made in 1906 against Leadbeater in order to justify his repudiation of Exhibit A and were instigated by interested persons, who have financed him. But this takes no account of the weakness of the available evidence for those changes and the impossibility of sustaining the case until (as observed above) more was available to support it; of of the absence of evidence of any communication between the plaintiff and his financial supporter before December 1911, when the charges were first made. It is not necessary to assume that the plaintiff is a person of particularly refined sentiment or decision of character, and it is not in my opinion difficult to conceive his acting as he did in spite of his knowledge, or necessary to hold that he disqualified himself for the guardianship by doing so.
57. We have no doubt dealt with the case at some disadvantage since we have not had the learned Judge's opportunity of hearing and seeing the witnesses. But that is of the less moment, because they were all, except Lakshman, educated persons of mature age and some position, and inference from their demeanour would be indecisive, and because it is on the admissions of the defendant's witnesses, and on admitted facts that argument has mainly proceeded. In the absence of the minors the direct evidence of each incident, which the plaintiff could adduce, was limited, and in view of the defendant's influence and proved conduct unbiased in direct corroboration could not be looked for. Yet, in support of his own evidence as to one incident he has shown that his conduct at the time was consistent, if not necessarily with his allegations in detail, yet only with some occurrence of equal gravity. As regards the other he could not be expected to rely on the only direct evidence, that of the defendant's servant. Yet even that evidence included indications that what he saw was not merely grave but consisted in reprehensibly indecent conduct; and those indications were repeated more distinctly in the evidence of the unfavourable Adyar witnesses, the defendant's adherents. On the other hand the defendant's attempt to prove at other innocent occurrences on other dates before Exhibit A were the foundations, on which the plaintiff's charges were founded and her attempt to show that his subsequent conduct has been irreconcilable with his belief in the truth of those charges have failed. And, accordingly he must be held to have proved as much as the circumstances admitted of his proving and as the Court should require. So far as the materials available justify a conclusion, it is in the plaintiff's favour. He has established in my opinion that he acted on an honest belief, if not literally on the charges as they were made in the particulars, yet in a substantial foundation for them. And therefore I hold that grounds of appeal Nos. 27 and 28 have not been substantiated and that the learned Judge's order as to costs is not justified.
58. I would therefore concur in dismissing the appeal with costs and, allowing the memorandum of objections with costs, would modify the decree by making each party liable for his and her costs in the Court of first Instance.