Aravamodha Iyengar F... v. Ramaswami Bhattar An...

JUDGMENT

The first defendant whose adoption has been declared invalid by the Sub Court, Tiruchirapalli, is the appellant before us. The following pedigree explains the relationship between the parties:

Ramaswami Bhattar and Kuppa Bhattar were two brothers. The plaintiff is the grandson of Ramaswami Bhattar. The plaintiff's father Rangaraja Bhattar died on the 5th March 1942. Kuppa Bhattar had a son Krishna Bhattar and a daughter Ponnammal, the second defendant. Krishna Bhattar was married to Rukmani Ammal. Krishna Bhattar was born on the 3rd December 1887 but died on 6th June 1901. On the date on which he died, he executed what purports to be a will but what was in fact an authority to adopt, a registration copy of which has been marked as Ex. P. 3 in the case. At the time of his death, Krishna Bhattar was below 14 years of age. The will was presented for registration after his death by Srirangammal, his mother, on 6th August 1901. There was an elaborate enquiry after due notice to the parties by the Sub Registrar, who, however, by his order dated 30th October 1901, refused to register it. There was an appeal to the District Registrar, and on 22-2-1902, he directed registration of the will as a result of a compromise between the parties. On the 18th March 1940 by Ex. D.5, there was an attempt to settle the dispute between Rangaraja Bhattar and Rukmani Ammal, and on that date, an unregistered family settlement deed was executed. It is common ground that the terms of that settlement however were not carried into effect and the settlement did not become effective. On the 22nd March 1940. Rukmani Ammal adopted the first defendant, purporting to act on the authority conferred on her by her husband under the will Ex. P. 3. She in her turn executed a will on 12-4-1940. She died on 17-4-1940. The father of the plaintiff was alive for about two years and the present suit was instituted by the plaintiff for a declaration that the adoption of the first defendant by Rukmani Ammal was invalid and never in fact took place.

In the Court below the genuineness of Ex. P. 3 was disputed and it was also contended that Krishna Bhattar was not in a sound disposing state of mind at the time of the execution of the deed on 6th June 1901. The factum of adoption was also denied. The main question, however, on which the controvery centred was about the validity of the authority conferred by Krishna Bhattar at the time when he was below 14 years of age. The learned Subordinate Judge found that the factum of adoption was established, and that Krishna Bhattar executed Ex. P. 3 with a full knowledge of its contents, and that it was genuine. He, however, declared the adoption invalid on the ground that Krishna Bhattar was a minor and was not competent to confer an authority to adopt on his widow. An attempt was made on behalf of the appellant in the Court below to support the adoption on the ground that Rangaraja, as the nearest sapinda then alive, consented to the adoption; but this attempt failed.

In this appeal by the first defendant, the main question argued by Mr. T.M Krishnaswami Aiyar, his learned Advocate, was that the authority conferred by Krishna Bhattar was valid. He made a faint attempt to support the adoption also on the ground that irrespective of the authority of Krishna Bhattar, the adoption was on that ground valid. The respondents did not challenge before us the findings of fact which were against them. The argument, therefore, proceeded on the ground that the findings of fact of the lower Court regarding the genuineness of Ex. P. 3 and the factum of adoption are correct.

We may dispose of the contention that Rangaraja consented to the adoption first as it does not present any difficulty. The unregistered family settlement deed, Ex. D.5 dated 18th March 1940, was relied on in support of the contention. That document sets out the previous disputes regarding the will and that Rangaraja agreed not to dispute the will in consideration of Rukmani Ammal giving him property worth Rs. 4000 out of the properties of Krishna Bhattar. In consideration of that Rangaraja promised not to put forth “any claim to the other movable and immovable properties belonging to the said Krishna Bhattar and consented” that the 2nd individual shall take all the steps necessary for the propagation of her family in accordance with the terms of the will left by Krishna Bhattar and that he would also be present and assist in the accomplishment of that object.” It is common ground that the terms of this family settlement were not carried out; but it was contended that the passage above extracted amounts to an independent consent on the part of Rangaraja to the adoption. It is impossible to accept this contention. All that Rangaraja agreed to do under that clause was that he would help the lady in carrying out the terms of the will of Krishna Bhattar by taking all necessary steps for the propagation of the family and to accomplish that object. I here is no language suggesting that Rangaraja intended to assent to the adoption independently of the existence of the authority contained in the will of Krishna Bhattar. It has now been authoritatively established that the assent of a sapinda to an adoption should be one given by him in the exercise of an independent judgment irrespective of the question whether or not the widow had also authority to adopt from her husband. The reason for this is obvious. As has been pointed out repeatedly by the Judicial Committee, the sapinda has to decide for the widow the propriety and the expediency of introducing an heir to the deceased husband. Where a sapinda gave his assent believing that the husband also gave an authority to adopt, it was held that such an assent was not valid to support an adoption: See Sri Raqhunada v. Brozo Kishoro(1), Genesa Ratnam Iyer v. Gopalaratnam Iyer(2), Venkatnma v. Subratnaniam(3) affirming Subramaniam v. Venkamtna(4). It is impossible to infer from the language of Ex. D.5 that there was an independent assent of Rangaraja to the adoption of the first defendant by Rukmani Ammal. We have no hesitation therefore in rejecting this contention.

The only important question there, fore that arises for serious consideration in this appeal is whether the authority of Krishna Bhattar, a boy below 14 years of age at the time, was valid. Krishna Bhattar was undoubtedly a minor as he was under the age of 18 on the date he gave the authority to adopt, if minority is to be determined with reference to the Indian Majority Act, IX of 1875. S. 2 of that Act however contains exceptions. The section enacts that:—

“Nothing herein contained shall affect—

(a) the capacity of any person to act in the following matters, namely;—marriage, dower, divorce and adoption.”

In respect of marriage, dower, divorce and adoption therefore, the capacity of a person to act has not to be determined with reference to the age of majority fixed by the Indian Majority Act, The personal law of the parties must therefore determine the age at which a person is entitled to act in the matter of adoption. This position was admitted by the appellant.

The argument, however, strenuously pressed before us was that adoption under Hindu law being essentially a religious institution, if a person is qualified to perform a religious act or partake in a religious ceremony, or in other words, “attained ceremonial competency,” he is entitled to adopt or even give an authority to adopt irrespective of his mental capacity; that is, irrespective of the question whether he is able to comprehend or not, the import and the consequences of the act he is performing. In the case of Dwijas (twice born persons), the right to perform a religious act or partake in a religious ceremony, competency is acquired by the performance of upanayanam. Krishna Bhattar before his death had not only his upanayanam performed but also his marriage, and therefore he was perfectly competent to do a religious act such as the adoption by himself, notwithstanding his age and was equally competent to confer an authority to adopt on his wife Rukmani Ammal. So ran the argument. When pressed with the question, whether he would draw the limit at any particular age, learned Counsel for the appellant stated that this competency would synchronise with the age at which upanayanam is to be performed among dwijas. As stated by various Smriti writers, this age of upanayanam is eight years computed from the date of conception in the case of Brahmins. 11 years in the case of Kshatriyas and 12 years in the case of Vysias. As Sudras are not entitled to have upanayanam performed and partake in any religious ceremony, this limit would not apply. As a last resort, counsel for the appellant stated that without drawing any arbitrary line and fixing any particular age as the age of discretion, it must be decided as a question of fact in each case whether or not the boy or the minor widow was capable of understanding and appreciating the act he or she was performing. If he had attained sufficient maturity of understanding to comprehend the nature of the act he was performing irrespective of the age, he was entitled either to take a boy in adoption or confer an authority to adopt on his wife, and on the evidence it was contended that there was no difficulty in the case of Krishna Bhattar as he was undoubtedly of mature understanding.

We may now examine the authorities cited by learned Counsel for the appellant to see whether they lend any support to the position taken up by him. The decision on which strong reliance was placed by him as supporting his position is that of the Judicial Committee in Amarendra Mansingh v. Sanatan Singh. This decision, it was claimed, revolutionised the law of adoption and has once for all firmly and clearly established that the adoption under Hindu Jaw is a religious institution in which no secular element enters. It is true that according to Hindu conception of religion, there is life after death which makes it incumbent upon those living in this world and related to the deceased to perform such daily and annual ceremonies as are conducive to the spiritual welfare of the deceased. It is not merely to perform, but it is also obligatory to provide if possible for the continued performance of such ceremonies without break by leaving a person, natural are adopted, who would carry on the religious duties. A text of Sruti says:

(A Bramana on being born becomes a debtor in three obligations; to the Rishis (who are propounders of the sacred books) for Studentship (to peruse the same); to the Gods for Sacrifices; to the Paternal ancestors, for progeny; he is free from the debts, who has son, who has performed sacrifices and who has studied the Vedas).

If a person has not the fortune of having a son of his own loins (an aurasa son), the law permits the adoption of a son. A text of Atri says:

(by a sonless person only, should always a substitute of a’ son be anxiously made, for the sake of funeral oblations, libations of water and obsequial rites. If the father sees the face of a living son after birth, he transfers the debts to him, and attains immortality. As soon as a son is born, the father becomes absolved from the debts to paternal ancestors; on that day he aquires purity, since the son saves from the infernal regions—Many sons are to be secured, if even one may go to Gaya, or celebrate the horse sacrifice or dedicate a Nila bull).

It is this religious basis of the adop of which is referred to by Sir George Lowndes at page 649 of the report.

In order to correctly appreciate the importance of the decision and the principles enunciated by the Judicial Committee, it may not be out of place to notice the background of the decision. Ever since the decision of the Judicial Committee in Bhooban Moyee's case, , Courts in India were unable to evolve a satisfactory limit to the power of adoption which a widow possessed either under the authority of her husband or with the assent of sapindas. It was thought that if the estate was not vested in the adopting widow but in a collateral, the limit to the power had been reached, though even there an exception was recognised in the case of vesting of property in a coparcener after the death of the deceased husband of the widow. This point of view undoubtedly emphasised and attached too much importance to the secular aspect of the adoption. Some of the pronouncements of the Judicial Committee themselves lend support to that view. The whole question was elaborately and critically examined by Sir George Lowndes in the decision under consideration. The dispute in that case related to the succession to the Dompara Rai an impartible zamindari in Orissa. The partips were Kshatriyas and were governed by the Benares school of Mitakshara law. One Raja Brajendra was the holder of the estate till 1903. On 20 July 1898, the said Raja executed a deed of authority in favour of his wife Indumati. After the execution of the deed, the said Raja had a son Bibhudendra who succeeded to the estate of his father after his death in 1903. As he was then a minor, the estate came under the Court of wards. Bibhudendra died on 10th December 1922 unmarried and was about the age of 20 years and six months at that time. He was a minor as the estate was under the Court of Wards and he did not complete the 21st year. Immediately after the death of the natural son, Indumati adopted the appellant Amarendra in pursuance of the authority conferred upon her by her husband. The adoption was disputed by a sapinda of Bibhudendra on various grounds. But we are now concerned only with the contention that the Rani's power of adoption came to an end and became extinguished with the death of Bibhudendra in as much as he had attained full legal capacity to continue the line and therefore the adopted son Amarendra could not divest the estate which became vested in the reversioner, the collateral heir. Two lines of argument were advanced before the Judicial Committee on behalf of the reversioner. The first was that with the vesting of the estate by devolution in Banamali the reversioner, the power of the widow terminated and became extinguished. In any event, as Bhibhudendra attained full legal capacity to continue the line, the power of the widow Indumati terminated.

As regards the first contention, the decisions beginning with Boobhan Moyee's case were considered by their Lordships of the Judicial Committee. The conclusion arrived at was that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another coparcener of the joint family or an outsider claiming by reverter, or, their Lordships added, by inheritance cannot be in itself the test of the continuance of extinction of the power of adoption. It was observed that the Hindu law itself did not set any limit to the exercise of the power and that there was no warrant in any of the texts of Hindu law to justify the imposition of a restriction based on considerations of property. The necessity, however, of drawing the line was imperative and the question was where the line should be drawn. Here again, religious importance of, the son, natural or adopted, enters into consideration. None of the decisions examined by the Judicial Committee, it was stated by Sir George Lowlands, warrants the assumption made in some of the decisions that the limit is reached when the property passed to another. “The true reason must be,” to quote their Lordships,

“that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the son's widow, the mother's power is gone. But if the son the himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during; the son's lifetime will revive.”

It is not enough merely to leave a son behind in order to terminate the power of the mother to make the adoption. In that case Bibhudendra was 20½ years and undoubtedly attained the age of discretion; but the continuance of the line by him became impossible as he himself left no son as he was unmarried and did not even leave a widow who could have continued the line by making an adoption to her husband. The limit therefore would not be reached unless and until there is in existence a person capable of continuing the line either by birth of a son to himself or if he left a widow, by an adoption by her. The “full legal capacity test” enunciated by the Judicial Committee in the second Berhampore case Madanamohana Deo v. Purushotham Deo, which was based upon the view of Chandavarkar J. in Ramachandra v. Shamrao, does not mean mere mental capacity and it is not enough to terminate the power of the midow to establish that the last male person in the line attained the full age of discretion and therefore acquired the full legal capacity. Nor can the expression “full legal capacity” be equated to ceremonial competence, i.e an expression vague enough but probably meant to convey the idea of competency to perform a religious act or the acquisition of necessary qualification to perform it. “Full legal capacity,” therefore according to the Judicial Committee means something more than mere age of discretion or even ceremonial competence. The full legal capacity to continue the line means continuance of the line in one of two ways (i.e,) either by leaving natural or adopted son, or a widow capable of bringing into existence a son by adoption. The test is to find out whether these conditions existed at the time of the son's death. If they did not exist, the power did not terminate. If they existed the power came to an end and may in certain circumstances, e.g, if the son's widow dies without making an adoption, the mother's power may be revived. If the object of adoption is the religious one of perpetuating the line with a view to make a permanent arrangement for the administration of the spiritual wants of the deceased, the object is not achieved when the continuance of the line came to a stand-still. There must be some power somewhere to continue the line and if the person lower down dies without providing for the continuance of the line, the power of the person higher up revives and continues. Extinction of a line is considered by the Hindus as something very ignominous. The necessity to continue the line is the necessity of the future not of this world but of the other world. This decision, therefore, in our opinion emphasises the importance of adoption from a religious point of view but does not altogether exclude the secular element in it.

The object of adoption is one and the act of adoption itself is another. If the object of adoption is religious it does not necessarily follow that the act of adoption is also entirely religious without secular element in it. We are not now concerned with the object of adoption but with the act of adoption itself and the question whether any and if so to what extent the mental capacity is required to perform the act of adoption. Ceremonial competence does not, in our opinion, warrant the assumption that the Judicial Committee intended to do away with any requirement as to mental capacity in the matter of adoption. Bibhudendra in that case was more than 20 years old but the power of adoption of Indumati did not terminate as Bhibhudendra did not leave a son or widow. The view that the adoption is more a temporal than a spiritual institution was again reiterated by the Judicial Committee in Rama subbayya v. Chenchuramayya following the opinion of Sir George Lowndes in Amarendra Mansing v. Sanatan Singh. These two decisions, however, were not concerned with the question which we have now to decide. There is no particular rule laid down under Hindu law relating to adoption either with reference to mental capacity required or to the age of majority. The whole of the law of adoption, it may be observed, was evolved from a few texts and a metaphor. The texts are those of Manu, Vasishta Bahudayana, and the metaphor is that of Saunaka who laid down that the adopted boy must bear the reflection of a son (putra chhayd). Most of it has been evolved by judicial decisions. It cannot, however, be gainsaid that the act of adoption consists of two elements, the giving and taking (i.e,) the giving of the boy by the parents and the taking of the boy by the adopter and the performance of datta homam. Giving and taking imply that the filial relationship in one family is snapped and is created in another. The act of adoption is the act of creating the relationship of son by satisfying the requirements of Hindu law. Of these, it cannot be disputed that the giving and taking of the boy is the most essential part of adoption. The religious ceremony of datta homam is not obligatory in all cases, as for example in the case of Sudras, who are not competent to perform any religious ceremony, and even in the case of Brahmins if they belong to the same gotra; it is not essential as laid down in Govindayya v. Doraiswami. In that case, the decision of the Judicial Committee in Shoshinath Ghose v. Krishnasundari Dasi was taken as authority for the proposition that any overt act is not sufficient to constitute adoption. There must be a corporeal delivery of the child by the person “competent to give to a person competent to take accompanied by the declaration on the one side,” I give the child in adoption, and on the other ‘I take the child in adoption.’ At page 7 it is further observed that

“decision shows further that in laying down the rules the Judicial Committee had before them what actually takes place when a formal adoption is made with ceremonies and that they rejected as superfluous the merely ceremonial observance as contradistinguished from the specific secular act and declaration which constitute the form in which the intention to give and take is manifested during the ceremonial.”

That the acceptance of the child is a secular act is further emphasised by the fact that even during pollution though a person cannot perform religious ceremony, he is entitled to accept a gift of a child and where datta homam is necessary, it may be supplemented after the period of pollution. Muthuswami Iyer and Best JJ. observed in Santhapayya v. Raitgapayya, that pollution is only “a bar to a religious act and renders religious ceremonies inefficatious but a gift and acceptance are secular acts and may therefore be supplemented by datta homam after the expiration of the period of pollution.” Among Sudras, no religious ceremoney is necessary and an adoption even during pollution is valid. In their case all that is necessary is the gift and acceptance of the child to bring about the filial relationship of an adopted son; see Thangathanni v. Rama Mudali and Annapurnamma v. Manikyamma(5).

The view taken in the above decisions is in accordance with the rules laid down for adoption by the texts. Baudhayana lays down (Putra Parigraha vidhim) i.e, the rules for the adoption of a son. The adopter goes to the giver of the child and addresses a request to them “give me thy son.” The other answers “I give” and the adopter accepts the gift (Parigrihati) saying (for the fulfilment of religious duties I receive), (to continue the line I take), see pages 24 to 28 of Yagnavalkya Smiriti, Book I Achara Adhyaya, translated by Sris Chandra Vidyarnava; see also, the ritual of datta homam in 2, Stranges Hindu law, p. 210 taken from Datta Mimamsa of Savara Swami communicated by the late Mr. Ellis. The secular act, therefore, of acceptance of a gift of the child to bring about the filial relationship is an essential element of the act of adoption. The object no doubt is a spiritual object and it should not be however confounded with the act itself. The essentials of the act are distinct from the object of the act. It is this failure to draw the distinction between the two that has enabled learned Counsel for the appellant to contend that as the Privy Council have said that adoption is a spiritual institution, no requirement of any mental capacity is laid down or is enjoined.

Of the other decisions cited, at the Bar a brief notice of them is all that is required. In Ragendra Narain Lahoree v. Saroda Soondaree Debee, Dwarkanath Mitter J. laid down that the adoption by a person who had attained the age of discretion though he was a minor, was valid. He does not however lay down the age at which according to Hindu law, a person attains years of discretion. He also emphasises that the adoption is a religious act and the necessity for the adoption is as stated by him, that as every childless Hindu is deemed sure to go to hell called “put” there was an obligation to adopt a son which is almost imperative as a matter of religious duty among Hindus. In Jumoona Dassya v. Bamasoondari Dassya, the Judicial Committee held that adoption by a lady of the age of 15 or 16 and therefore of an age, which according to the law prevalent in Bengal is to be regarded as the age of discretion, was valid. They did not however decide whether the age of discretion is to be taken as the completion of the age of 15 or 16 as in either view, the requirement as to the attainment of the age of discretion, was satisfied in that case. It is contended, however that this decision is no authority for holding that a person making an adoption even though a minor should have attained a particular age in order to establish that he had attained the age of discretion. The authority is reduced by this argument as merely deciding the case on the facts and evidence in that case and as not enabling us to evolve any rule of law is difficult, however, to accept this contention in view of the categorical statement of the Judicial Committee at page 295 of the report.

In Mortdakini Dasi v. Adinath Dey, the person who gave the authority to adopt was a man of full age but the person who exercised that authority, that is the widow, was a minor within the meaning of the Indian Majority Act. In fact, she was about 11 or 12 years old. If the authority to adopt by the husband specified the boy to be adopted, there is nothing further to be done by the widow which required the exercise of her judgment; but she had only to carry out her husband's wishes by making the adoption. Reference was made in that case to the decisions in Rajendra Narain v. Saroda Soondaree Debee, Jumoona Dassya v. Bamasoondari, and the omission in those decisions to indicate the meaning of the age of discrection. The learned Judges, however, observed that there is nothing to indicate that the widow had not attained sufficient maturity of under-standing to comprehend the nature of the act. The decision in Magnaghten's Precedents of Hindu law in which the Pandits' opinion was to the effect that the adoption by the widow, in pursuance of the express permission of her husband was a perfectly valid adoption was referred to. In upholding the adoption, emphasis was laid on the fact that the boy taken in adoption was definitely named in the authority given by the husband as the person to be adopted and that therefore the minority of the widow who exercised the authority could not affect the legality of the adoption. This decision may perhaps be supported on the ground that though the widow making the adoption was only 11 or 12 years old, no exercise of discretion on her part was required in the circumstances of the case. Some decisions of the Bombay High Court on this point were also referred to by the learned Counsel for the appellant. The first was the decision in Patel Vandravan Jehsan v. Patel Manilal Chunilal. The husband to whom the adoption was made by the widow was below the age of 16 years at the time of his death. The widow who made the adoption was a major. Under the law obtaining in Bombay a Hindu widow is entitled to make an adoption to her husband without his permission and even without the consent of sapindas unless the adoption was expressly prohibited by the husband. The adoption was contested on the ground that the authority could not be implied in the case of a husband who died while yet a minor in the eye of the law. The decision of Mitter J. in Rajendra Narain Lahoree v. Saroda Soondaree Debee, approved by the Privy Council in Jutnoona Dassya v. Bamasoondari Dassya, was relied on as laying down that it the person adopting, though a minor under the Indian Majority Act, if he had attained the age of discretion which enabled him to perform religious ceremonies prescribed for his salvation, he would be competent to make an adoption and in the case before the learned Judges, they presumed such a discretion on the part of the husband as he died two months before he attained the age of 16 when he would have ceased, even in the eye of the law, to be a minor. The reference in this observation to majority in the eye of the law is necessarily to the majority under Hindu law and not under the Indian Majority Act. Basappa v. Sidramappa, was a case which raised the question of the competency of a girl of 15 years of age to make an adoption to her deceased husband. Here, the question was not with reference to the age of the husband making the adoption or giving the authority to adopt but a case of a widow making an adoption for her husband. With reference to the determination of the question, it was considered immaterial whether it was the husband ‘that made the adoption or the widow. It was pointed out that the decisions in Rajendra Narain Lahoree v. Saroda Soondaree Debee. Jutnoona Dassya v. Bamasundari Dassya and Mondakini Dasi v. Adinath Dey, did not indicate the meaning of the expression “age of discretion” used in those cases. The adoption was however upheld on the ground that there was nothing to show that at the date of the adoption, the widow had not attained sufficient maturity of understanding to comprehend the nature of the act and that in fact she was about 15 years of age. Under these circumstances, there was no reason to presume that a girl of that age who had been married for two years or more and lived with her husband did not realise what was meant by taking a son in adoption. This decision again proceeds on the peculiar facts of the case and enunciates no definite test except to say that if the person making the adoption was of sufficient age to comprehend the nature of the act that he or she was performing, it would be sufficient, to validate the adoption. In Murugappa v. Kalava, the adoption was held invalid when made by a widow 12 years of age who did not reach the age of puberty. Macleod C.J emphasised the necessity of the requirement that the adopting widow should reach such an age of discretion as to be able to realise the importance of the act and to make up her mind as to the person sought to be adopted. As the act of adoption was of considerable importance, the actual age of the widow, says the learned Judge, may be another test and probably the most important one. If she was unable to understand the nature of the act and if adoptions made by such people were to be upheld, it would open the door to all sorts of intrigue so that the older members of the family would be in a position to induce widows of tender age to make adoptions in their own interests and not in the interests of the widow. The learned Chief Justice clearly attaches great importance of the requirement regarding the mental capacity of the person adopting to comprehend the nature of the act and to be in a position to select the boy. The observations of Heaton J. in the judgment may not be correct in the light of later decisions but he also concurs with the learned Chief Justice in holding that the person making the adoption must be in a position to exercise his or her volition. Macleod C.J and Justice Shall had to consider again the same question in Parvatava v. Fakirnaick, in which case the widow was 12½ years of age at the time she made the adoption. The learned Chief Justice referred to his earlier decision in Murugappa v. Ealava and added that it is not sufficient that the girl was exceptionally intelligent to comprehend the nature of the act, but that she must also be in a position to resist the influence which the elders would exercise and naturally exercised upon her actions. The adoption by a girl of 12½ years was held to be not valid. This decision again is important as emphasising the necessity of the person making the adoption to exercise an independent judgment in the matter of the adoption and if so exercised, there should be a maturity of understanding.

Lastly, there is the recent decision of the same Court in Kashinath Balakrishna v. Anant Murlidhar, decided by Broomfield and Sen JJ. The adoption was by a person who was 14 years and 7½ months of age at the time of the adoption. The validity of that adoption was in issue. Broom-field J. who delivered the leading judgment in the case after a consideration of the earlier authorities of that and other Courts, expressed himself thus at page 795 on the effect of the decisions:

“I thick it is clear from these oases that according to the view taken by this High Court there is no hard and fast rule that an adoption by a youth or girl who has not completed the age of 15 years is necessarily invalid. On the contrary this Court has regarded the question of the possession of the necessary understanding and discretion as a question of fact to be determined on the evidence in the particular cage. Since we have found in the present case that Bhanudas had sufficient maturity of understanding to comprehend the nature of the act of adoption and its consequences, we think there is no rule of law which requires us to hold that the adoption was invalid.”

The Bombay High Court, has not considered whether under the Hindu law, there is an age of majority fixed as no reference was made in any of the decisions to the texts bearing on the question. They considered it sufficient to lay down that the decision in each case must rest upon the evidence relating to the capacity and the power of understanding of the person making the adoption whether it is a boy or a girl. The Bombay decisions, however, do not support the extreme contention urged on behalf of the appellant that a consideration of the mental capacity of the person making the adoption was wholly irrelevant and that all that is required is competency to perform a religious ceremony. If that is established, according to the appellant, the adoption would be valid irrespective of the power of understanding of the person making the adoption.

No doubt the decisions of the Bombay High Court support the contention of the appellant to this extent that the question of the capacity should be determined on the facts of each case, of course taking into consideration the age and the other factors bearing on the question. The Bombay High Court did not treat the decision in Jumoona v. Bamasoondari, as laying down the limit of minority at 15 or 16 and according to the decisions, there is no such limit prescribed under Hindu law.

In our Court, Sadasiva Aiyar J. considered the question in Sathiraju v. Venkaiaswami. The facts in that case were: One Subbarayudu died in 1907 having executed a registered will shortly before his death under which he gave authority to his widow, Viyyamma then 11 years old to make an adoption. A few months after the death of Subbarayudu, the widow, while yet a minor, made an adoption. It was found in that case that in the matter of adoption, Viyamma did not exercise any discretion of hers as she was only 11 years old and her father acted on her behalf and practically gave her no opportunity to exercise her own discretion and did not even consult her about the desirability of adopting a boy. Both the learned Judges, Oldfield and Sadasiva Aiyar JJ. agreed in finding that Viyamma was not consulted in the matter of the adoption. Both the learned Judges were also agreed on the authority of the decisions in Ranganayakamma v. Alwar Setti and Mondakini Dasi v. Adinath Dey that there should be a sufficient maturity of understanding to enable the widow to comprehend the nature of her act; but Oldfield J. did not deal with the question of the age of majority under the Hindu law. The point was considered further by Sadasiva Aiyar J. though obiter, elaborately. According to the learned Judge, the age of majority under the Hindu law, for both males and females commences at the age of 16, i.e, on the completion of the 15th year and reliance was placed for this position on the decision in Mothoomohun Roy v. Soorendra Narain Deb and Madhusudhan Manji v. Deb Gobinda Newgi. The learned Judge relied also on the decision of the Privy Council in Jumoona Dasya v. Bamasoondari Dassya and the opinion of Jogeshchandra Ghosh in Hindu law at page 851 where the learned author points out the difference of opinion between the Bengal and Benares writers regarding the age of majority under Hindu law. According to the Bengal writers, the age of majority is the beginning of the 16th year or the completion of the 15th year while according to the Benares writers it is the end of the 16th year. The opinion of Mr. Ghosh at page 584 was also quoted to establish that the act of taking in adoption is not only a religious act but also a legal transaction, vyavahara and one who has not attained the age of 16 is incapable of validly entering into such a transaction. He then quotes from Gopala chandra Sarkar Sastri's Tagore Law Lectures on Hindu law of Adoption where the learned author also expressed the view in consonance with the opinion of the writers of Bengal. The observation of the learned Judge, though obiter, is entitled to the highest respect though on one point there is room for difference of opinion. In Mayne's Hindu law, latest edition at page 193 the law is thus summarised:

“It is well settled that a person who is a minor under the Indian Majority Act can adopt or authorise his widow to adopt when he has attained the age of discretion according to Hindu law. In Jumoona v. Bamasoondari, the Privy Council held that the age of 16 or 16 was, according to the law prevalent in Bengal, to be regarded as the age of discretion. It corresponds to the age of majority which is fixed by the Dayabbaga school at the completion of the fifteenth year. According to the Mitakshara School, it is the completion of the sixteenth year. It may be the same for the Mitakshara school also, as it is quite possible to interpret the relevant rule as meaning the completion of the fifteenth year.”

Then occurs a passage in that paragraph which it is very difficult to reconcile with the earlier statements in that paragraph. If the Hindu law had fixed the majority at 15 or 16 as the case may be, there is no room for fixing the age of discretion arbitrarily or with reference to other considerations. The learned author says in the same paragraph:

“The age of discretion cannot certainly be fixed earlier than the completion of the fourteenth year since the Legislature now treats a girl below 14 as a child for purposes of marriage. The age of discretion must be fixed by the law. Where it is not so fixed, it can only be treated as a question of fact in each case.”

The last sentence is apparently based on the view taken by the Bombay High Court in Kashinath Balakrishna v. Anant Murlidhar(6).

In our opinion, the age of majority under Hindu law is fixed either at the completion of the 15th year or at the completion of the 16th year as the case may be whether one accepts the Bengal view or the view of other text writers which will be adverted to presently. In the present case the boy was below 14 and therefore it is really immaterial whether the age of majority is taken as the completion of the 15th year or the 16th. The act of adoption contains the most essential element of the selection of a boy and the acceptance of the gift of the boy which are undoubtedly acts of a secular nature. The adoption no doubt also is a religious act; but the vyavahara or the secular element in it cannot be ignored. In order to perform a legal transaction, Hindu law requires that the person should have attained the age of majority without which there is no validity for the transaction. Whether the adoption is made by a male or whether he gives an authority to adopt to his widow or even if the widow makes the adoption either under the authority of her husband or after obtaining the assent of the sapindas, the act can be done and the authority can be given only if the person attained majority according to Hindu law. Otherwise, the act is invalid.

No doubt there is no text of Hindu law specifically dealing with the act of adoption and laying down the limit for the age of minority. But there are indications in other branches of Vyavahara law fixing the age of majority. The leading authority which has been quoted with approval by most of the commentators is that of Narada. In dealing with the question of the liability to pay debts he says:

(A child is comparable to an embryo up to his eighth year. A youth, who has not reached the age of sixteen, is called Poganda. After wards he is no longer a minor and independent, in case his parents are dead).

The dictionary meaning of the word Poganda is “not full grown, a boy under sixteen years of age.” means “infant, not under sixteen years of age.” In the text of Narada cited above is used. The expression is also used by Gauthama in defining the limit of the age for upanayanam. According to Smriti writers, upanayanam for a Brahmin should be performed in the 8th year from conception. Gautama says (upanayanam Brahmanasyashtame.) and 11 years for Kshatriyas and 12 years for Vysias. Then it is stated by Gautama (Ashodasadbrahmanasya Patita Savitri) Hara datta in commenting on this verse states that the letter in denotes the limit i.e, upanayanam can be performed till the last day of the 16th year. The expression therefore in Narada's text must receive a similar interpretation and must include the 16th year as well and not until the 16th year or upto the 16th year i.e, the completion of the 15th. In commenting on verse 50 of Yagnavalkya's Smriti “Rma Dana Prakarana”, Vignaneswara points out that the debt need not be paid before the arrival of vyavaharakala but it should be paid after the vyavaharakala had arrived. Then in order to fix the vyavaharakala he cites the text of Narada already quoted. In commenting on this commentary Subodhini says After the expiry of 16 years and Balambhatti says that is the same as and he also adds Shodasavarshaturohan that the son attains independence if there is no father. It is therefore clear from these texts that a person attains competence for vyavahara according to Hindu law after the completion of the 16th year. Mr. Ganapathi Aiyar in his book on Hindu law at page 415 and the following pages has collected the texts bearing on the question. The attention of the learned Judge Sadasiva Aiyar J. was not apparently drawn to some of these texts and he was willing to accept the view of the Bengal writers. Colebrooke in his Digest of Hindu law, refers to the text of Narada and agreeable to the Bengal view, he thinks that the minority must end with the 15th year as declared by Katyayana. Priyanath Sen a very eminent authority on Hindu law in his jurisprudence deals with this question at pages 299 and 300 and states as his opinion:

“Having regard to the context, the best interpretation seems to me to lead to the conclusion, that minority extends till the end of the sixteenth year, although Srikrishna Tatkalankara in his commentary on the Dayabhaga appears in one place to take the opposite view.”

A person who is a minor under Hindu law is considered incapable of entering into any legal transaction as stated by the learned author. The opinions of Ghosh and Sarkar Sastri on Adoption have been cited in extenso by Sadasiva Aiyar, J.

Ceremonial competency or the qualification to perform a religious rite can never be the test. In the case of dwijas, after upanayanam is performed a person becomes competent to perform religious rites though he may not be qualified to perform religious sacrifices until marriage. The lower limit of the age for upanayanam, i.e, 8, 11 and 12 according as the person is a Brahmin, Kshatriya or a Vysia. It is rather difficult to assume that a boy of that age would be capable of understanding the legal implications of affiliating a son to himself. After upanayanam, studentship commences and continues until the period when he becomes a snathaka fit to enter into a married life. His studies are then finished. Though it is now settled by decisions that a bachelor is entitled to adopt according to strict conception of Hindu law, it would be illogical to think of a bachelor producing a son of his own or entering into a grahasthasrama as it were, by adopting a son to himself. During the period of studentship he is incompetent to perform even datta homam, puthreshti, as it is a sacrifice which requires the presence of a wife. The ceremonial competency does not carry with it the necessary mental equipment for a person to form an independent judgment in the matter of affiliating a son to himself. It is therefore difficult to accept the extreme contention urged on behalf of the appellant without any binding authority for this view if accepted would lead, as pointed out by Sarkar Sastri in his Law of Adoption, “pushed to its logical consequences this theory would justify the adoption even by a boy of eight years and the Hindu legislators were not “devoid of commonsense as to contemplate such an absurdity.” No doubt the learned author added an addenda at page 215, A, citing instances of adoptions by minors which came to his knowledge during his professional career but that contains only a passionate plea for reform in that direction and does not in any way alter or affect the opinion already excressed by him in his lectures. The age limit, therefore cannot be drawn at the point where a dwija becomes competent to have the upanayanam performed and this contention does not suggest any limit of age in the case of sudras who are not qualified to perform any religious ceremony involving the recitation of sacred texts. To accept the test so strenuously pressed by the learned Advocate would’ lead to the serious consequences of young people being brought under the influence of elders who, to further their own interests, would force adoptions upon them. Such a danger must necessarily be avoided. In view of the above texts and of the opinions of text writers and also the obiter dicta of Sadasiva Aiyar J. in Sathiraju v. Venkatasami, and the decision of the Judicial Committee in Jumoond Dasya v. Bamasoondari Dasya, it is impossible, in our opinion, to accept as did the learned Judges of the Bombay High Court the test of deciding the question on the facts of each case in order to come to a conclusion whether or not the person making the adoption was capable of understanding the nature of the act and of forming an independent judgment uninfluenced by extraneous pressure. It will be introducing an uncertain element into the law of adoption which, if possible, should be avoided.

In our opinion, therefore, minority under Hindu law comes to an end on the completion of the 16th year. This rule applies to males and females, to the act of adoption as well as to an authority empowering the widow to make an adoption. If the person is below the age of majority recognised and established by Hindu law, the adoption will be invalid.

For these reasons, in our opinion, the view taken by the learned Subordinate Judge in the Court below that the authority given by Krishna Bhattar when he was below 14 years of age was invalid and that the adoption of the first defendant by Rukmani Ammal is also invalid was correct. The decree, therefore, of the lower Court must be confirmed and the appeal is dismissed with costs of the first respondent.

V.C.S