Candy, J.:— The question for consideration is whether the plaintiffs' adoption is valid. At the time of the adoption his natural mother was dead and his natural father had become a convert to Mahomedanism. He was therefore given in adoption by his uncle, whom the Mahomedan father had authorised in that behalf.
I he District Judge held that the natural father could not then delegate authority, because he had by becoming a Mahomedan ceased to be governed by Hindu law, and thus he could not give, and consequently could not authorise the giving.
It is not denied that if the father was competent to give the son in adoption, then he was competent to delegate the authority to his brother. As Mr. Mayne puts it (Sixth Edition, page 257): “Where the necessary sanction has been given by an authorised person, the physical act of giving away in pursuance of that sanction may be delegated to another.” And Mr. Justice West said in Vijiarangam v. Lakshuman (page 257) “The Hindu law recognises the vicarious performance of most legal acts; the object of the corporeal giving and receiving in adoption is obviously to secure due publicity (Cole brook's Digest, Book V, Text 273, Commentary,) and Yeshwada's employing her uncle to perform this physical act, which derived its efficacy from her own volition accompanying it, cannot, we think, deprive it of its legal effeot.” But the position taken for the defendant in the present case is that the father having become a Mahomedan was not ah “authorized” person: his act of giving his son in adoption would not be “legal”; he was, by his renouncement of the Hindu religion, in Hindu law dead, and his son was an orphan, and so could not be given at all in adoption.
That was the view apparently adopted by the District Judge. He held that in matters of adoption, law and religion must bo inseparable, and therefore, when the father ceased to be a Hindu, his power of giving a son in adoption ceased also. If that is the correct view, then Act XXI of 1850 will have no application. For though the effect of that Act is said to be that degradation or exclusion of caste, from whatever cause it may arise, is absolutely immaterial in all cases where except for the Act, it would have debarred a person from enforcing or exercising a right, on the other hand where there are circumstances which, independent of all consideration of caste, create a disability under the Hindu law, the fact that degradation from caste follows upon the disability, leaves it just where it was before; the disability is not removed, because the degradation is inoperative (Mayne, Sixth Edition, page 781). So here it is contended that a man who is no longer a Hindu cannot, from the very nature of the case, give his son in adoption; it is not the case of any law or usage inflicting on him forfeiture of the right of giving his son in adoption by reason of his renouncing the Hindu religion, but it is the case of his being absolutely incapable of joining in the Hindu rite of adoption. We are unable to concur with this contention.
In Panchapa v. Sanganbasaua Mr. Justice Parsons remarked: “It seems almost useless to refer to Hindu texts for assistance in the case of a status, the existence of which they never contemplated. It is, however, I think clear that the power to give in adoption was only conferred upon the father and mother, because they were the owners and natural guardians of their son, and it follows that if the mother should lose that position, then her power to give in adoption would be lost also.”
That was a case which came under act xv of 1856, section 3 of which declares that the effect of remarriage is (except under certain circumstances) to deprive the mother of her right of the guardianship of her children. But there is no such statute applying to the present case. On the contrary, it has been expressly ruled that under Act XXI of 1350 the inherent right of a Hindu father to the custody of his children, not only as guardian by nature, but by nurture is a right which is preserved to him, even though he has renounced the Hindu religion—Muchoo v. Arzooni and cf. Narayen v. Luxmeebaee. Adoption may be regarded as a civil transaction as well as a religious ceremonial. If civilly the father is competent to give, he is equally competent to sanction the giving. Were the parties here Brah mans and not Rajputs, and Datta homa essential, then possibly the father after becoming a Mahomedan could not sanction his brother to be present at the giving during the Datta-homa; hut the point does not arise here. The question is really narrowed to this if the father is not civilly dead, if he is still the guardian of his son, why should he not be able to exercise his volition and sanction his son being given in adoption according to the Hindu religion? The son is still a Hindu he is one who may be taken in adoption. We see no reason why the adoption should be treated as invalid.
We are unable to understand the District Judge's remark that “if a convert to Mahomedanism could give his Hindu sons in adoption, he would be enable to divest them of their share in the family property which had vested in them prior to his conversion.” The remark is equally true, even though the father may not have renounced the Hindu religion.
We accordingly reverse the decree of the District Judge and restore that of the Subordinate Judge. Plaintiffs must pay the defendants' costs in the District and High Courts.
Decree reversed.