(1) The appellant is the plaintiff. He instituted a suit in the court of the district munsif, dharmavaram, for a declaration that the adoption of the first defendant by the third defendant is neither true nor valid nor binding on him. The second defendant was impleaded as the elder brother of the first defendant and it is unnecessary to notice him hereafter in this second appeal.

(2) The main defence was that the adoption was true, valid and binding on the plaintiff. The trial court held that the adoption was not true and that the agreement of adoption, exhibit b - 1 dated aand may, 1942, was a false and ante - dated document. Consequently, it dismissed the suit. On appeal, the additional district judge, anantapur, reversed the finding of the trial court and came to the conclusion that the adoption was true as "well as valid. He, therefore, decreed the suit. The plaintiff has now come up in second appeal challenging the correctness of the decision of the lower appellate court regarding the validity of the adoption.

(3) The adoption of the first defendant by the third defendant was in dwyamushyayana form. This is common ground. Exhibit a - 1 is the agreement entered into between the natural father of the first defendant on the one hand and the third defendant as the adoptive father on the other, with the avowed object of making the first defendant remain at the same time the son of both his natural father and his adoptive father. Thus, under the adoption in question, the first defendant was to be the son of two fathers. An intended consequence of this appears to be that the first defendant would inherit in the family of his natural father as also in that of his adoptive father. Perhaps both these families would also inherit to him. The natural father of the first defendant is the maternal uncle of the third defendant. It is admitted that at the time of adoption the first defendant's natural father had several sons. The plaintiff is the after - born natural son of the third defendant.

(4) The only contention raised in this second appeal is that, dwyamushyayana adoption was never in existence in this part of the country, that in any event it had become obsolete long long ago and that therefore an adoption in that form is not now valid. In mayne's treatise on hindu law and usage, eleventh edition, at page 266 in para. 208 it is stated :

"the only form of dwyamushyayana adoption that is not obsolete is the nitya or absolute dwyamushyayana in which a son is taken in adoption under an agereement that he should be the son of both the natural and adoptive fathers. It appears to be obsolete in madras on the east coast. But in the west coast among the nambudri brahmans, it is the ordinary form. In bombay and the united provinces its existence is fully recognised, but with the qualification that the onus of proving that an adoption was of this type lies upon those who assert it. It has been recognised by the judicial committee in two cases from bengal."

(5) In support of the statement that dwyamushyayana adoption is obsolete in madras on the east coast, reliance in placed on vasudevan v. The secretary of state for india, 1887 ilr 11 mad 157. Which is a decision of a bench of the madras high court consisting of sir arthur j. H. Collins, chief justice and muttusami ayyar, j. At page 179, it is observed:

"dwyamushyayana adoption is obsolete on this coast, but we need hardly cite texts or do more than refer to datta chandrika, s. Ii, 41 and 42, in order to show that dwyamushyayana adoption was well known to ancient hindu law, though the form in which adoption now prevails on this side of the ghats is what is called sudda dattu, or adoption pure and simple, that is to say, an adoption which completely sevres the person adopted from his natural family and fixes him in the adoptive family."

(6) This decision held that duyamushyayana adoption was prevalent among nambudri brahmins, who were governed by special custom which they adopted after they settled in malabar. The passage in vasudevan v. The secretary of state for india, 1887 ilr 11 mad 157. Extracted above, shows that dwaymushyayana adoption is obsolete in this part of the country. The learned counsel for the respondent has not been able to bring to my notice any decision of any court situated in the old madras presidency, which upheld dwyamushyayana adoption in any part of the presidency except malabar. He has however referred me to some decisions of the bombay high court. But, dwyamushayayana adoptoin of the nitya form has been well recognised in certain parts of the old bombay presidency and, therefore, these decisions are of little assitance to us in this part of the country, where, as vasudevan v. The secretary of state for india, 1887 ilr 11 mad 157. Points out, this form of adoption had long become obsolete.

(7) It is then argued on behalf of the first defendant - first respondent that, as the dwyamushyayana adoption had been recognised in ancient hindu law, it would be valid to revive it even today, although it had fallen into disuse for a very long time. I do not think, this is a good ground for recognising a new form of adoption, which does not appear to have been in vogue in this part of the country practically for ages now. If we approach the hindu law in the manner suggested by the learned counsel for the respondent, much of this law as now understood and practised might get revolutionised and altered beyond recognition. And what we now consider to be settled law among hindus would become unsettled and fluid again.

(8) For instance, several forms of adoption and marriage were recognised in ancient hindu law. Marriages in the rakshasa and pysachika forms were mentioned in ancient texts. It also appears that such forms had been in vogue in the forgotten past. But, it would surely be odd to revive those forms of marriage today and claim validity for them. ' niyoga ' was recognised in the ancient texts of hindu law and appears to have been practised in ancient times by brahmins. But, long ago it fell not only into disuse but also abhorrence. This is what the division bench of the madras high court in vasudevan v. The secretary of state for india, 1887 ilr 11 mad 157. Says at page 181 :

"further, niyoga or inviting a brahman to beget a son upon a childless widow for her husband was in use among brahmans in early times, but, at a later period, several smritis reproved the practice as 'fit only for cattle', and under their influence various forms of adoption gradually took the place of niyoga, which was ultimately forbidden."

(9) Now, if a person tries in the name of the ancient texts of hindu law to revive 'niyoga' and claim validity for it, i think the courts will not hesitate to reject it out of hand. Thus, several forms and practices which were prevalent among the ancient hindus and which were mentioned in the ancient texts of hindu law have been abandoned in later times. In others words, they have become obsolete. It is idle to seek to revive them now, when we have advanced and developed modern, social and ethical standards and outlook. Many of the ancient usages which have long fallen into disuse would not fit into the present hindu society or conform to their present - day notions, even if it were permissible to take them up from a dead past and bring them to life in today's society. This is, perhaps, one of the good reasons why courts do not countenance the revival of customs and usages or forms and practices which have long become obsolete. For instance, kritrima form of adoption which is even now in vogue in mithila is obsolete in other parts of india. It is not, therefore, possible for a person in this state or in the neighbouring state of madras to make an adoption in the kritrima form and obtain for it the recognition of courts. Now returning to the argument that dwyamushyayana adoption was recognised in ancient hindu law, one has to say that it is not quite a correct statement. It appears that this form of adoption, as has taken place in the instant case, was never recognised by mitakshara.

(10) In laxmipati rao shrinivas deshpande v. Venkatesh trimal deshpande, 1916 ilr 41 bom 315 at 333. It is stated as follows regarding the dyamushyayana from of adoption :

"as regards the texts, the mitakshara is silent on the point. The duyamushyayana son mentioned by vijnaneswara is not the dwyamushyayana on which later writers refer to, and admittedly the species of a duyamushyayana son referred to by vijnaneswara is absolete and has nothing to do with our present point."

(11) In his "treatise on the hindoo law of inheritance", standish grove grady states as follows at page 48 :

"as far as our researches lead, it would appear that the duyamushyayana as the son of a stranger, and not of a brother, or of a wife, is unknown to the older writers. The mitakshara, ch. 1. , sec. Xi, para 4, and notes : 3 dig. 204, 206 certainly recognise no son of that description under that name. Both manu and narada, when alluding to the son of two fathers, evidently had in view the son of the wife. From the datta ghandrika it may: be gathered that a man who has no other male offspring may give his son in adoption. The gift and acceptance of an only son were expressly forbidden by the earlier writers ; and since they mention nothing of a dwyamushyayana of this description, the recognition of such a son would appear to depend solely upon the opinions of later commentators. The question, therefore, is whether their opinions should be followed in preference to the sources of the law, particularly in a way calculated to operate injuriously. For, if sons were born to the natural father after the adoption, the dwyamushyayana at para. 23, sec. V of the chand, is declared entitled to share the estate of the natural father with them. This is contrary to the test of manu, cited at sec. Xi. , para. 35, the adopted son must never claim the family or estate of his natural father."

(12) This shows that the ancient texts or source books of hindu law did not recognise dwyamushyayana, now recognised in parts of bombay state and state of uttar pradesh. This form of adoption seems to have been so to say, a contribution or gloss of commentators who came much after vijnaneswara. The only dwyamushyayana (son of two fathers) spoken of in mitakshara is the kshetraja, i. E. , the son begotten by a person on the wife of another person. And this species of son is now obsolete in hindu law. The ancient texts not having recognised dwyamushyayana adoption as in the present case, it is not surprising that in this part of the country it was never recognised and was never in vogue.

(13) It is well known that in several important matters of hindu law there is divergency between one part of the country and the other. Mitakshara and dayabhaga represent the main divisions. In mitakshara itself there are several schools, such as mithila, benares, maharashtra and dravida. In the law of adoption there is difference between bombay and madras. In bombay a widow can adopt without waiting for the permission of any sapindas, whereas in madras such permission is needed. In bombay, a married mar. Can be adopted whereas in madras he cannot be. In mithila kritrima adoption is recognised, whereas in other schools it is not. Many of these differences appear to be due to the circumstance that certain later writers and commentators were followed in certain parts of the country, whereas certain other parts of the country did not follow them. Also some parts of the country follow certain portions of the ancient texts, which are not adopted by the other parts of the country. This is a well known feature of the hindu law prevailing in india. It is, therefore, scarcely of any use to point out that some later writers had recognised the dwyamushyayana adoption as set up in the case on hand, or that in the neighbouring bombay state it is accepted. The fact remains that in this part of the country it does not appear to have been accepted or recognised as a valid adoption. I think it is neither permissible nor desirable to go back to the b. Cs. And rake up forms of adoption or marriage, or modes of inheritance for that matter, and then try to resuscitate them and engraft them on the hindu law as it now stands. That would only make for confusion.

(14) In view of the forgoing, i am of opinion that the dwyamushyayana form of adoption, which is said to have been brought into use by the third defendant in the present case was never in vogue or recognised in anantapur district and cannot, therefore, be upheld. It is not the case of the first defendant that as a matter of special custom this form of adoption has been in vogue in certain families or in a particular locality. He claimed it all along as part of the hindu law extant in anantapur district and the other andhra districts. But he has not been able to establish this claim. This second appeal, therefore, succeeds and is allowed with costs throughout leave granted. Appeal allowed.