Judgement

SRINIVASACHARI, J. : -

This is an appeal against the Judgment of the Judge on the Original Side of the High Court. The suit out of which this appeal arises was filed by Madanlal, respondent No. 1 for possession of two houses and other moveable properties mentioned in the schedule to the plaint on the allegation that these properties belonged to one Prahlad Das and that the plaintiff as his adopted son was entitled to the suit properties.

It was alleged further that defendants 1 and 2 came to be in unlawful possession of one house and that defendants 2 and 8 occupied a portion of another house which they had no right to do. Besides these defendants, the plaintiff impleaded the tenants of houses Nos. 2/775, 2816, 2817 and 2819 as they declined to pay him the rent. These are defendants 5 to 15.

The suit was resisted by all the defendants. Defendants 1 and 2 denied that plaintiff was the adopted son of Prahlad Das and stated that defendant 1 was his adopted son. They further denied that plaintiff and Prahlad Das were members of joint family and that the suit properties were ancestral. It was stated by defendants 3 and 4 that the plaintiff was related to the deceased as the uncle while they (the defendants) were more closely related than the plaintiff. The Trial Court framed the following issues :

1. Is the plaintiff the validly adopted son of Prahlad Das?

2. Was defendant No. 1 validly adopted by Prahlad Das?

3. In the event of issues 1 and 2 being proved who would have preference as between the plaintiff and defendant No. 1?

4. Are the documents filed by defendant No. 1 admissible in evidence?

5. To what relief is the plaintiff entitled?

2. It has to be observed at the outset that no specific plea as to why the adoption of the plaintiff should be declared to be invalid was raised in the case by any of the defendants. But an objection in a general form was raised that the adoption was not valid. The trial Court on the evidence, oral and documentary, held that the adoption of the plaintiff was proved and that of the defendant No. 1 was not proved. It also held in favour of the plaintiff as regards the validity of the adoption of the plaintiff. The present appeal is on behalf of defendants Nos. 3 and 4, defendants 1 and 2 having compromised the matter with the plaintiff.

3. In so far as the factum of adoption of the plaintiff is concerned we must say that there is overwhelming evidence in the case in support of it. (His Lordship reviewed the evidence and proceeded.) We find that these witnesses have not been shaken in cross-examination at all. The trial Court has believed them and there is no reason why their statement should not be believed. We, therefore, agree with the lower Court that the evidence in the case establishes the adoption of the plaintiff by Prahlad Das.

4.We agree with the contention of the learned counsel for the appellant that even if the adoption is proved the plaintiff cannot succeed unless he is able to show that his adoption is valid. As observed above, the grounds for declaring the adoption to be invalid have not been specifically stated by the defendants. But it is argued that the evidence in the case and the admitted facts would make the plaintiffs adoption invalid.

Reliance is placed upon a genealogical table filed by defendant No. 4 which may be taken to be admitted by the plaintiff. According to this table the adoptee would be, in the matter of relationship an uncle to the adopter. That is to say, this would amount to a nephew adopting an uncle. This adoption is questioned as violating the accepted principle of Hindu Law that a person could not be adopted whose mother the adopter could not have married. In this connection, viz., about the eligibility of a boy who in the degree of relationship would be the uncle of the adopter, certain texts of Hindu Law may be adverted to.

5. Saunakas rule is that the boy to be adopted must bear the reflection of a son. Nandapandita has added a gloss on this rule by saying that no one could be adopted whose mother the adopter could not have married. This gloss of Nandapandita has been, construed by the High Courts in India in different ways and by other text writers as well. The Bombay High Court has construed this as placing specific restrictions on certain individuals such as the daughters son, sisters son and mothers sisters son.

6. In the case of Ramachandra Krishna v. Gopal Dhondo, ILR 32 Bom 619 (A), while discussing as to whether effect could be given to the rule that no one can be adopted whose mother the adopter could not have married the learned Judges of the Bombay High Court observed that the authority of Nandapandita should be accepted ordinarily except where it deviates from or adds to the Smritis or where the rule enunciated is opposed to well established custom recognised by the Courts.

The rule prohibits only the adoption of two classes of persons (1) daughters son, sisters son, mothers sisters son and (2) sons by prohibited connexion. Prohibited connexion or Virudha Sambandha is said to exist where the relationship of the couple bears analogy to that of father or mother, for example, where the bridegroom as it were is the father of the bride or the bride stands in the light of a mother to the bridegroom.

The phrase prohibited connexion has been understood to mean an incest in English Law. The Allahabad High Court has also made the rule applicable to the adoption of the persons mentioned above, viz., mothers sisters son, daughters son or a sisters son. In so far as the Madras High Court is concerned, in Minakshi v. Ramananda, ILR 11 Mad 49 (FB) (B), it was held that there can be no valid adoption if a marriage between the adopter and the mother of the adopted son is not legally valid.

In a case before the Privy Council in Bhagwan Singh v. Bhagwan Singh, 26 Ind App 153 : ILR 21 All 412 (C), wherein the validity of the adoption of mothers sisters son was the subject of consideration their Lordships observations would show that the rule laid down in the works of Nandapandita are not to be regarded as mandatory, but, they can only be regarded as being of the highest authority.

7. This rule of Nandapandita has also been commented upon by text writers like Mandlik, Golap Chandra Sarkar, Ghosh and Dr. Jolly. Dr. Jolly in his Tagore Lectures on the law of adoption says that there is little warrant for the formation of a rule like this in the Sanskrit Treatises. The whole thing turns upon a passage appearing in Nandapanditas Dattaka Meemamsa.

According to Dr. Jolly Nandapandita borrowed the elements of his theory from Dattaka Chandrika and has transcribed from that work the sentiment that those only are capable of being adopted who might have been begotten by Nijoga and the like. This is based upon the principle that adoption imitates nature and that the adopted son sought to resemble a natural son. This theory has been connected with the prohibition to adopt a daughters son or a sisters son.

8. Golap Chandra Sirkar also says that there is difficulty in understanding whether any general principle of exclusion from the capacity of being adopted was intended to be laid down by Nandapandita. Ghosh in his Hindu Law says that although in the early cases this rule that the boy should not be so related that his natural father could not marry the adoptive mother was given effect to, the subsequent cases established that it has no foundation in Hindu Law.

Their Lordships of the Privy Council in the case of Puttulal v. Mt. Parbatikunwar, 29 Mad LJ 63 : (AIR 1915 PC 15) (D), specifically said that the rule that no one can be adopted as a son whose mother the adopter could not have legally married is not based upon the authority of any of the Smritis or institutes of sages. No doubt this was a case where the question was as to whether an adoption by a female under the authority of her husband would also be covered by the rule enunciated above. The question was whether she could adopt her brothers son. Their Lordships held that the rule should be construed as meaning that a legal marriage must have been possible between the adopter and the mother of the adopted boy prior to their marriage.

9.The argument, therefore, that the adoption in this case of the plaintiff, who was related to the adopter as the uncle, was invalid cannot be accepted, because the rule, on which reliance is placed, is only recommendatory rather than mandatory. Vide in this connection Balusu Gurulingasamy v. Balusu Rama Lakshmamma, 26 Ind App 113 (PC) (E).

We may further point out that the words occurring in Dattaka Mimamsa relating to the paternal uncle are pitrivya and they can only mean a fathers brother Pitribhrata. Under those circumstances it cannot be held to cover an elderly relation in the position of the first cousin of the father and in this case a cousin of the seventh remove of the father. This view of ours is supported by a decision of the Bombay High Court in Mallappa Parappa v. Gangava Gangappa, ILR 43 Bom 209 : (AIR 1919 Bom 85) (F).

It would, therefore, follow that the rule that one in the relationship of an uncle could not be adopted cannot apply to this case as the relationship between the plaintiff and the adopter was far too remote to be called an uncle in the strict sense of the word. The distant cousin of the father, as he happens to be, is not within the prohibition contemplated by the rule. No doubt the adoption of a boy older than the adopter may be revolting to the Hindu sentiments but the adoption cannot be held to be invalid.

10. One other argument was advanced and that was that it was in evidence that the plaintiffs Upanayanam was performed by his natural father in the family of his birth and under the Hindu Law the adoption of a person whose Upanayanam had been performed was invalid. In this connection the learned advocate for the appellant relied upon a statement of a witness, Jugal Kishore. The statement in the witness deposition is to the following effect :

"I had Madanlals (Janov) performed, the year or Samvat I do not remember; it was before the marriage and before the Godh"

Stress is laid upon this statement which says that the Upanayanam was before the Godh (adoption). In so far as this is concerned, there was no specific allegation in the written statement stating that the boys Upanayanam was performed in the family of his birth. If statement had been made and the validity of the adoption questioned on this ground, it would have been possible for the plaintiff to have proved when the Upanayanam took place and also to have proved that it had taken place in the adopters house alone.

As we have observed above, in the beginning no specific pleas were raised on which the validity of the adoption was questioned but a general statement disputing the adoption and questioning its validity was made. This was placing the plaintiff in a very embarrassing position. No further written statement expatiating the statements made in the original written statement was filed with the permission of the Court.

Reliance is merely placed upon this stray statement of this witness and it is sought to be argued that because the Upanayanam took place prior to the adoption it is invalid. The witness in our opinion is not very clear on this point. He does not know the year or the Samvat when this was performed. He merely says that he remembers when the Janov took place. He does not remember the year of adoption and it will be unsafe to rely upon the statement of a witness who is not certain and precise about the facts that he asserts.

As against the statement of this witness there are the statements of other witnesses who clearly state that the Janov and marriage were performed by the adopter. We might say that almost all the witnesses have spoken to this. Ramjivan says that the janov took place before the marriage and one and all say drat it was the adopter who performed the marriage of the plaintiff and defrayed the expenses.

All the witnesses who have spoken about the adoption have also spoken to their having been present at the marriage which was performed by the adopter. Under those circumstances we are not prepared to rest the case solely upon the stray statement of one of the witnesses. The Dattaka son even when invested with the sacred thread under the family name of the adopter himself, according to the form prescribed by the Shaka becomes a participant of the Shaka of the adopter.

From this it can hardly be said that this rule lays down that the Upanayanam ceremony must also be performed in the adopters family, for example, where the adopter and the adoptee belong to the same Shaka. Their Lordships of the Privy Council while dealing with the performing of Upanayanam adverted to a judgment of the Bombay High Court in Valubai v. Govind Kashinath, ILR 24 Bom 218 (G) and approved of the observations of Sir Lawrence Jenkins. They also relied upon the following passage in Stranges Hindu Law, Vol. II, page 104 :

"With respect to non-eligibility of a person for adoption on whom the Upanayanam rites have been performed it is much disputed. The more reasonable opinion would appear to be that he is eligible if of the same Gothra (family); non-eligible if of a different Gothra from the adopter; that if of the same Gothra the Datta Homan though proper is not necessary."

and followed the same in the famous case of Bal Gangadhar Tilak v. Srinivas Pandit, 42 Ind App 135 : (AIR 1915 PC 7) (H). That the rule prohibiting the adoption of a Brahmin after Upanayanam would not apply in the case of a Sagothra of the adopter has been clearly established. Vide in this connection Viraraghava v. Ramalinga, ILR 9 Mad 148 (FB) (I). In this case even according to the defendant, the plaintiff and the adoptive father belong to the same Gothra. Therefore, this question does not arise. The result of this discussion is that the adoption of the plaintiff must be held to be proved and valid. The judgment of the lower Court is upheld and this appeal dismissed with costs both here and in the lower Court.

Appeal dismissed.