Dawson Miller, C.J:— The suit out of which this appeal arises was instituted on the 30th May, 1919, by the respondent Sri Jagannath Jenamoni against the appellant, Sri Raja Makund Deb Gajapati Maharaj, to obtain a declaration of the respondent's status as the adopted son of the appellant and a further declaration that Jagadananda Deb was not the appellant's adopted son. Jagadananda Deb was also impleaded as a defendant in the suit but he died on the 23rd July, 1920, after filing a written statement but before the case came to trial. In the plaint there was also a prayer for a further declaration that the appellant was the trustee on behalf of the respondent of the sum of Rs. 1,00,000 made over to the appellant by the plaintiff's elder brother, the then Raja of Bamra at the time of the adoption, namely, on the 2nd October, 1918.

The respondent, who was the plaintiff in the suit, is the third son of the late Raja Sachidanda Tribhuban Deb, Chief of the Feudatory State of Bamra in Orissa. Before his adoption his name was Lal Mohmi Mohan Deb.

The appellant, the surviving defendant in the suit, is the Raja of Puri and as such is the superintendent of the celebrated temple of Jagannath at that place.

The deceased defendant, Jagadananda Deb, was the younger son of the zamindar of Bada Khemidi in the district of Ganjam and popularly known as the Raja of Ganjam.

It is the respondent's case that ever since the year 1905 when he was a child of six years of age negotiations had from time to time taken place between his family and the appellant, or those acting on his behalf, with a view to bring about his adoption by the appellant. No definite agreement was for some time arrived at and in the year 1914 the negotiations were temporarily allowed to drop. In 1918, after his father's death, the negotiations were renewed with his mother and his eldest brother, the then Raja or Chief of Bamra with the result that after many interviews between the parties or their representatives an agreement in writing, dated the 23rd September, 1918, was executed by the appellant whereby he undertook to take in adoption the respondent and to perform the datta homa ceremony. During the negotiations the respondent's brother, as the head of his family, had insisted upon certain conditions being agreed to before he would consent to the adoption. These related mainly to the completion of the education of the respondent, then eighteen years of age, and provision for his separate residence and freedom of restraint over his movements, and these terms were incorporated in the agreement signed by the appellant. The Raja of Bamra had also insisted that the proposed adoption should be notified to the Local Government and its consent obtained. The Local Government was consequently informed of the proposed adoption and their consent thereto was solicited, and on the 16th July, 1918, the Government intimated that they had no objection to the proposed adoption. A further question arose with regard to a settlement which the Raja of Bamra had promised to make at the time of the adoption. If, appears that a sum of Rs. 80,000 in currency notes had been set aside by the respondent's late father as his younger son's portion of the estate but no formal settlement of this sum appears to have been made. There was a further sum of Rs. 20,000 in war bonds which had been purchased in the respondent's name by his brother the then Raja of Bamra. The Raja of Bamra wished to settle this money for the benefit of his brother, making the appellant the trustee. The appellant, on the other hand, wished to have a free hand in the disposal of the money as he thought fit. No definite agreement appears to have been come to as to the settlement of this money but it was arranged that the matter should be left in the hands of Babu Dhanapati Bannerji, the retained pleader of the Puri Raja, who had taken a prominent part throughout in the negotiations. Dhanapati Bannerji would appear to have felt some embarrassment in settling this matter of difference between his client and the Bamra family and up to the time of the adoption nothing definite had been settled by him or agreed to between the parties concerned, and the fund, forming one lakh of rupees, was in fact handed over to the appellant at the time of adoption. The Raja of Bamra undoubtedly was under the impression that the money was to form a trust fund in the hands of the Raja of Puri as trustee for the benefit of his brother, and this impression finds support from the fact that in two telegrams, dated the 25th and 27th September, sent by Dhanapati Bannerji from Puri to the Private Secretary of the Raja of Bamra, the Bamra family was urged to come immediately to Puri for the celebration of the ceremony as all the terms had been assented to unconditionally. In the agreement of the 23rd September, 1918, the only mention of this question of a settlement is that which appears in clause 1 of the agreed terms which provides:

“That I Shri Raja Makund Deb, taking my seat on the datta homa bedi shall take the amount settled with the pleader Babu Dhanapati Bandopadhaya from him at the time of datta homa and at the same time shall take in adoption Lal Mohini Mohan Deb from your respected Rajmata and shall duly perform the datta homa.”

One of the issues in dispute between the parties at the trial was whether the appellant was a trustee on behalf of the respondent in respect of this fund. With regard to this issue the learned Additional Subordinate Judge found that the Rs. 80,000 which were paid in currency notes, at the time of the adoption, to the appellant were transferred to him absolutely in consideration of the adoption without any conditions being attached and, further, that there could be no trust regarding the war bonds amounting to Rs. 20,000 as they stood in the respondent's name and Rs. 5,000 thereof had been paid to Dhanapati Babu as his remuneration under the directions of the Puri Raja. There is no longer any dispute upon this issue as the respondent has not challenged the propriety of the Judge's finding in this respect. The matter is only important in so far as it has any bearing upon the question raised by the appellant and argued before us in this appeal to the effect that the adoption is invalid by reason of the appellant having been induced to consent thereto by a bribe. In order to complete the story upon this part of the case in so far as it appears from the evidence it will be convenient to state here that on the 2nd October, 1918, the date when the adoption took place, a postscript was added to the deed of agreement of the 23rd September and signed by the appellant to the following effect:

“Be it further stated that I received the money to my satisfaction from Dhanapati Babu as agreed upon and I sat on the datta homa bedi. Be it further stated that I adopted the son for the perpetuation of my family, for offering pinda and water to my ancestors for the management of the Seba of Jagannath Mahaprava and for the preservation of the family prestige.”

The story of the negotiations, and the agreement finally come to, and the journey of the respondent with his brother and his mother, the Rajmata, together with a numerous retinue to Puri, and how they were received there with great pomp and ceremony, together with the details of the adoption ceremony which took place at the appellant's house on the following day before a large gathering, and the subsequent life of the respondent at Puri are set out at length in the plaint. A vast, mass of evidence, both oral and documentary, was adduced at the trial in support of the case pleaded but the most remarkable feature of this litigation is that the appellant, by his written statement, pleads that the whole story is a pure invention from beginning to end. He denies that he ever entered into any negotiations with the Raja of Bamra or that anybody acted on his behalf or with, his authority and he denies all knowledge of the matters alleged in the plaint. He repudiates his signature to the various documents which he is alleged to have signed. He denies that any adoption ceremony took place or that any money was received by him on that occasion. He further pleads that, at some previous date not definitely stated, but which appears from the written statement of the deceased defendant to have been the 2nd March, 1916, in the presence of a select company he took in adoption the second defendant who was then about one year old and that he has never adopted anybody else. In addition he pleads that the respondent's mother had no authority from her deceased husband to give her son in adoption and that his upanayana ceremony had already been performed before the date of the alleged adoption, a fact which amongst the twice born classes, to which the parties in this case belong, would render the adoption void and inoperative. The written statement of the deceased defendant Jagadananda Deb was not printed in the record before us but we allowed a copy of it to be added to the file. That defendant, besides traversing the allegations in the plaint, pleaded that he was adopted by the Raja of Puri on the 2nd March, 1916. He further pleads that even if a form of adoption was gone through as alleged by the respondent it is invalid for the following reasons: (1) because of the previous adoption of himself, (2) because of the age of the respondent who had attained majority and was incapable of begin given in adoption, (3) because the respondent's upanayana ceremony had already been performed, (4) because of the want of consent of the respondent's natural father, and, (5) because the appellant was induced by a bribe of a lakh of rupees to receive the respondent in adoption.

Six issues were framed for determination at the trial:

(1) Whether the first defendant executed the agreement of the 23rd September, 1918, and is it valid and binding?

(2) Whether the plaintiff was adopted by the first defendant on the 2nd October, 1918, as alleged by the plaintiff, and is the adoption valid and legal and (sic) against public policy?

(2) (a) Is the defendant estopped from questioning the validity of plaintiff's adoption on the ground of deceased defendant's alleged adoption, now that defendant died? (added on the 24th July, 1920).

(3) Whether the second defendant was adopted on the 2nd March, 1916, and if so, is the adoption valid?

(4) Whether defendant 1 was paid one lakh of rupees as alleged by the plaintiff? Is he a trustee on behalf of the plaintiff in respect of the same?

(5) To what relief, if any, is the plaintiff entitled?

All these issues, except the second part of No. 4, Were found in favour of the respondent and a decree was passed declaring that the respondent and not the deceased defendant, was duly adopted by the appellant and, consequently, the respondent was entitled to all the rights and privileges of an adopted son. The prayer for the declaration regarding the money was refused.

From this decision the Raja of Puri has appealed. The story told by the respondent was supported by numerous witnesses and much documentary evidence. The learned Judge found that the plaintiff's case in this respect was amply proved and that the evidence in support of the appellant's story was thoroughly unreliable. So clear and overwhelming is the evidence put forward on behalf of the respondent as to the fact of an adoption ceremony having taken place that the learned Counsel for the appellant has not asked us to question the findings of the learned Additional Subordinate Judge upon this point, nor did he contend that the story of a previous adoption could be supported. He has, however, questioned the validity of the adoption upon certain legal grounds. In the first place he contends that the age of the respondent, namely eighteen years, at the date of adoption, renders the ceremony invalid according to Hindu law amongst families of the twice born classes, secondly, he contends that certain ceremonies essential to the validity of adoption under the dattaka form were not complied with; thirdly, he objects that the respondent's mother had no authority from her deceased husband to give her son in adoption and that this want of capacity on her part is fatal to the validity of the ceremony. The fourth and 1st point taken is that the passing of money as a consideration for the adoption is forbidden by Hindu law and contrary to public policy and renders the transaction void.

No specific issue was raised at the trial as to any of these points although the second issue may be regarded as wide enough to cover them. It further appears that none of the points was raised in the written statement of the appellant except that dealing with the want of capacity of the Rajmata to give her son in adoption. In the written statement of the deceased defendant the points relating to the age of the respondent and the passing of a bribe as well as the capacity of the Rajmata are, however, taken. It is further to be noticed that the learned Additional Subordinate Judge in dealing with the second issue, which he does at great length, nowhere mentions any of the points now taken before us in appeal except in so far as he deals with the evidence of the fact of adoption and I can only conclude that they were not urged before him at the trial, nor has it been suggested in argument before us that he omitted to deal with any point that he was asked to decide. As these contentions, for the most part, raise questions of law requiring no further evidence and as they affect the status of the respondent we consented to hear the argument of the learned Counsel for the appellant.

In support of the first point reliance is placed upon a passage in the Kalika Purana quoted with approval by the author of the Dattaka-Mimansa (section 4, verse 22). The authority of the Kalika Purana is unquestionable and the treatise known as the Dattaka-Mimansa of Nanda Pandit is also regarded, both in Bengal and amongst the followers of the Benares School of Hindu Law, as of great authority. It may be stated here that the parties belong to the Kshatriya caste and are governed by the Benares or Mitakshara school of Hindu Law. If the quotation from the Kalika Purana as it appears in the Dattaka-Mimansa is to be accepted as authentic and binding, there is much to be said for the appellant's contention. In Setlur's translation of the Dattaka-Mimansa, the passage is as follows:

“22. Another special rule is propounded in the Kalika-Purana: Sons given, and the rest though sprung from the seed of another, yet being duly initiated under his own family name, become sons. O. Lord of the earth, a son having been initiated under the family name of his father, unto the ceremony of tonsure inclusive, does not become the son of another man (anyatas). The ceremony of tonsure and other rites (chudadya) of initiation, being indeed performed, under his own, else, they are termed slaves. After their fifth year, O. King, sons given, and the rest are not sons. (But having taken a boy five years old, the adopted should first perform the sacrifice for male issue. But the son of a twice-married woman, immediately on being born, he should duly take as a son. Having performed positively (vai) for such, immediately on being born, the burnt sacrifice for the son of a twice-married woman, the man should complete every initiatory rite, the ceremony for a male born (jatakarma) and the rest. The burnt sacrifice for the son of a twice-married woman, being completed, from these (tatas) a son of that description, is filially.”

The exact meaning of this passage is somewhat obscure and the rest of the section consisting in all of seventy-nine verses is given up to its elucidation. The effect of the passage as explained by the author of the Dattaka-Mimansa appears to be that a son whose tonsure ceremony has been performed in the family of his natural father cannot validly be adopted as a son given, and, as this ceremony ought to be performed (according to the author) not later than the fifth year, no boy above that age is capable of being so adopted.

Much controversy has raged round this passage and much ingenuity has been expended in endeavouring to explain away a rule which appears to be at variance with actual practice. In the earliest smritis there is no such prohibition. The only restriction imposed by Manu is that the adopted son should belong to the same class or caste as his adoptive father.

“He whom his father or mother, with her husband's assent, gives to another as his son, provided that the donee have no issue, if the boy be of the same class and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water.” (Manu, Chapter IX, 168, Jones' translation; see also Mitakshara, Chapter I, section IX, verse 9.)

As Dr. Gour has pointed out in a recent work (The Hindu Code, page 337):

“In ancient times neither age nor marriage was a bar to adoption and an instance is frequently cited of the adoption of Sunah Sepha by Vishwamitra in the Vedic age. The restrictions consequent on age and marriage are unqestionably innovations of a later age.”

In this respect there is no reason to suppose that the learned author is not accurate. Apart from the passage quoted from the Kalika Purana and adopted by the Dattaka-Mimansa and a few other treatises there is no ancient authority for the proposition that a child over five years of age cannot be validly adopted in the dattaka form. The authenticity of the passage in question was questioned even before the date of the Dattaka-Mimansa itself, if we accept the view that the Dattaka-Chandrika, a work of equal authority, is of earlier date. The Dattaka-Chandrika quotes the disputed passage and adds:

“As for what they quote thus from the Puranas, that is unauthentic” (Dattaka-Chandrika, section 2, verse 25.)

It then proceeds to state that:

“Were it even authentic, the interpretations given by some, that one initiated in ceremonies down to that of tonsure under the family name of the natural father bears no filial relation to the adopter; but such relation obtains where the ceremonies commencing with that of tonsure are performed by the adopter only, and if a child whose tonsure has been completed by the natural father or one past five years of age be adopted in that case the filial relation does not accrue, are inaccurate.”

Alternative interpretations are then given and in verse 30 the reference to the fifth year is said to apply only to Brahmins seeking the fruit of holiness resulting from a study of the Vedas. The translator of these two commentaries, Mr. Setlur, points out that the text of the Kalika Purana on which the limitation as to age of the adopted son is based, has been held to be spurious by the author of the Dattaka-Chandrika and that all the High Courts and many of the modern text writers are agreed in holding that the Hindu Law imposed no restrictions as to age and, whatever be the age of the adopted son, it is now settled that his adoption is valid if made before upanayana, if he belongs to any of the regenerate classes, and before marriage, if he belongs to the sudra caste. (See Setlur's Complete Collection of Hindu Law Books on Inheritance, page 388.) Nilakantha, the author of the Vyahara Mayukha (Chapter IV, section 5, paragraph 20) points out that not much reliance is to be placed on the disputed passage as it is found in two or three copies of the Kalika Purana. Sir Thomas Strange says:

“The affiliation of one whose coronal looks have not been reduced to the form of his patriarchal tribe is constantly inculcated. The age for this operation is the second or third year after birth, but it may be extended to the eighth which with Brahmins is the general period of the investiture except for such as are destined for the priesthood upon whom it is performed at five. The stipulation therefore of five years as the extreme age for adoption may have reference to Brahmins of this description.” (Hindu Law Vol. I, 89).

Rai Sahib Vishvanath Narayan Mandlik, a Sanskrit scholar of repute, in his work on the Mayukha (page 471) says:

“As regards age there is no restriction whatever. The only text restricting age is the one said to be from the Kalika Purnea.”

He then refers to the authorities who have disputed the genuineness of the passage including Krishna Bhatta who regards the passage as spurious but even assuming it to be genuine explains it as referring to a son to be adopted by a king as his successor. W.H Macnaghten, a recognized authority, says the authenticity of the passage is doubtful (Hindu Law, page 74). None of the modern text writers so far as my research goes place any reliance on the five years' limit and some of them go so far as to say that there is no valid authority for limiting the age at all. The late Shastri Golap Chandra Sarkar in his Tagore Law Lectures strongly advocates this view and contends that even the performance of the upanayana ceremony in the family of the natural father is no bar to a subsequent adoption.

“It should, however, be observed, says the learned author, that if you leave aside the passage in the Kalika Purana the authenticity of which is doubted, then there is no authority in Hindu Law for the proposition that any of the initiatory ceremonies must be performed in the adopter's family in order to cause filial relation, in other words, that if all or any of the initiatory rights for a person have been performed in the family of his birth, he becomes incapable of being adopted into any other family. The passage of Vasishta relied upon by the author of the Dattaka-Chandrika does not lay down the rule that the upanayana ceremony must be performed in the adopter's family, not can such a rule be fairly inferred from it. Nor is there any passage of law declaring that in the case of sudras marriage is a bar to adoption.” (Sarkar's Hindu Law of Adoption, 2nd Edition, page, 316.)

The early case law on the subject affords little or no guidance for the decision of the present case, but in 1887, Mahmood, J., of the Allahabad High Court, in a learned and elaborate judgment, in which Straight, J. concurred, reviewed the authorities at great length and arrived at the conclusion that the disputed passage in the Kalika Purana could not be relied upon as authentic and that the upanayana ceremony, which, in the case of Kshatriyas, may be performed as late as the 22nd year, was the limit of age for a valid adoption [see Ganga Sahai v. Lakhraj Singh]. I see no reason to differ from the decision of the Allahabad High Court arrived at after careful consideration, in so far as it decided that the passage attributed to the Kalika Purana cannot be relied upon as authentic and that the adoption of a child over five years of age is permissible. The question whether, after the upanayana ceremony has been performed, a person belonging to the Kshatriya caste can be adopted does not arise in the present case as it is not admitted that the respondent's upanayana ceremony had not been performed at the date of his adoption. In my opinion the adoption of the respondent is not invalidated by reason of his age.

The second point urged before us raises the question whether the adoption ceremony was performed according to the correct ritual. The omissions urged were (1) that the Rajmata did not sit upon the bedi at the time when the datta homa was performed; (2) that the charu homa was not performed; (3) that the sankalpa was not performed; and (4) that the putreshti jag ceremony was not performed, and that this was essential as the respondent's tonsure ceremony had already taken place in the family of his natural parents. With regard to each of these points except the last, no difficulty presents itself as there was evidence on the record from which a decision can be come to. With regard to the question of the putreshti jag ceremony there is no direct evidence from which it can be said whether that particular ceremony was performed or not. No point was raised as to this either in the pleadings or issues and no question was asked about it in cross-examination although the evidence of Raj Guru Raghu Nath Brahma, the purohit of the Puri Raja, whose forefathers were Raj gurus before him and who took the leading part in the performance of the ceremony, stated that the kulachar (family customs) of the Puri Raja were performed on the adoption. Moreover the point was not taken before the trial Court nor was it raised amongst the seventy-five grounds of appeal set out in the appellant's memorandum of appeal. For these reasons I consider that we should not allow this question to be argued before us now, but in case this appeal should go further I propose to state shortly my opinion on the assumption that this particular ceremony was not in fact performed. The foundation upon which its performance is claimed as a necessary adjunct to a valid adoption is the disputed passage in the Kalika Purana already referred to. The view that it was necessary, in cases where the tonsure ceremony had already been, performed appears to be based upon the explanation of the passage given in verses 49 and 52 of section 4 of the Dattaka-Mimansa which has been interpreted by some authorities as meaning that adoption even after tonsure may be validated by the performance of the putreshti jag or sacrifice for male issue, but not otherwise. If, however, the text upon which it is founded is not authentic the explanation can have no greater authority. The only case quoted in support of the appellant's contention on this point is Luchman Lall v. Mohan Lall in which Dwarka Nath Mitter, J., is reported to have said that the performance of the putreshti jag is essential to the validity of an adoption in the dattaka form amongst the three superior classes. In the later case of Retki v. Lak Pati Pujari the Calcutta High Court expressed the view that the words putreshti jag in the former judgment were inadvertently used for datta homa, and on this assumption refused to follow it in the case of an adoption of a son belonging to the same gotra as his adopted father. Again in this Court in the case of Sheo Lochan Ray v. Bhirgun Ray it was held that the putreshti jag ceremony was a matter of form and not essential to an adoption. It is true that in that case the parties belonged to the same gotra, and, in so far as the view expressed applies to parties belonging to different gotras it was obiter. In A sita Mohan Ghosh Moulik v. Nirode Mohan Ghosh Moulik the Calcutta High Court also held that the putreshti jag was not an essential element in the ceremony of adoption, but this was in the case of sudras. Apart from the dictum attributed to Dwarka Nath Mitter, J. in Luchman Lall v. Mohan Lall, which has been characterised as a lapsus lingual in a later case in the same High Court, there is no direct authority in the appellant's favour on this point. Although the question is not free from doubt I should be prepared to hold, if necessary, that the ceremony is not essential to the validity of an adoption even amongst the regenerate classes. In this connection I would refer to the view of Sir Thomas Strange who in dealing with the mode and form of adoption says:

“There must be gift and acceptance, manifested by some overt act. Beyond this, legally speaking, it does not appear that anything is absolutely necessary…………And even with regard to the sacrifice of fire, important as it may be deemed, in a spiritual point of view, it is so with regard to the Brahmin only; according to a constant distinction, in the texts and glosses upon matters of ritual observance, between those who keep consecrated and holy fire, and those who do not keep such fires, i.e, between Brahmins and other classes-”

He then refers to the decision of Sir John Anstruther, C.J, in the case of the Raja of Nobkissen, and continues:

“And, even with regard to Brahmins, admitting their conception in favour of its spiritual benefit, it by no means follows that it is essential to the efficacy of the right for civil purposes; but the contrary is to be inferred and the conclusion is, that its validity, for these, consists generally in the consent of the necessary parties, the adopter having at the time no male issue, and the child to be received being within the legal age, and not being either an only or the eldest son of the giver; the prescribed ceremonies not being essential. Not that an unlawful adoption is to be maintained; but that a lawful one, actually made, is not to be set aside for any informality that may have attended its solemnization.” (Hindu-Law Vol. I. 95).

Indeed I think it may be said that once it is determined that an adoption is valid provided the upanayana ceremony, the culminating point of the second birth, has not been performed, although the other initiatory rights, including tonsure, have already taken place in the natural family of the adopted son, the necessity for the pattreshti jag ceremony disappears. The necessity for its performance appears to be founded upon an ingenious interpretation of the questionable passage in the Kalika Purana as a means of explaining away that which did not commend itself as acceptable. It is significant also that in a case arising in one of the very centres of Hindu religious worship no one has suggested until the case was argued in appeal that the omission of the putreshti jag was a bar to the validity of the adoption. It was left to the ingenuity of Counsel to raise the point for the first time in argument before us, although it finds no place amongst the various grounds of appeal formally taken.

With regard to the other matters arising under the second question for decision, they do not appear to me to present any difficulty. That the Rajmata did not sit upon the bedi when the datta homa was performed is admitted. She was a few feet away behind the pardah but in a position to hear and see what was going on. The adan prodan, or giving and taking, which is the most essential part of the ceremony and the sankalpa, or vows, were carried out behind the pardah, and in these she took a leading part. The respondent and the appellant having subsequently left the pardah hand in hand and taken their seats upon the bedi, the datta homa was performed by the Brahmins who officiated, the bedi being in the quadrangle where the guests were seated. No authority has been cited to us to support the view that the giver should actually sit upon the bed during the datta homa ceremony. Being a pardanashin lady of high estate it is hardly likely that the Rajmata would appear in public before so large an assembly of strangers and there is no reason based on principle or authority why it should be essential for her to do so. Again it has been left to the ingenuity of Counsel to suggest this as a defect in the ceremony.

The evidence as to the sankalpa was discussed by the learned Judge of the trial Court but the only question raised in this connection was the credibility of the witnesses and he accepted their evidence. The evidence was that of those best qualified to speak of it as it was that of the persons who took part in the ceremony. Their evidence was corroborated by other witnesses who were near enough to hear what was going on and the appellant was not called to contradict them. I can see no reason for differing from the findings of the learned Judge.

As to the charu homa no special point appears to have been made of this at the trial but one of the witnesses, Mahant Gadadhar Ramanuj Das, a guest at the ceremony, states that he saw ghee and charu and twigs passed into the sacred fire. Other witnesses speak in general terms of the performance of the datta homa. The officiating priest, Raghunath Brahma, who was cross-examined at great length as to the datta homa also speaks to the offerings of samid (firewood), ghee and charu. There can be no doubt that these ceremonies were duly performed and I so find.

The third point can be disposed of shortly. It is admitted that a widow can give her son in adoption if her husband during his lifetime has consented. In my opinion there is evidence sufficient to establish such consent. Further it appears to be well settled that a mother may give her son in adoption even without her husband's express consent in cases where such consent cannot be obtained, as where he is dead or has joined a religious order. The text of Manu has already been quoted in an earlier part of this judgment. In Colebrook's translation the words “with her husband's assent” do not appear. Vijnaneswara's comment is as follows:

“He who is given by his mother with her husband's consent while her husband is absent or incapable though present, or without his assent after her husband's decease, or who is given by his father, or by both, being of the same class with the person to whom he is given becomes his given son (dattaka).” (Mitakshara, Chapter I, section XI, verse 9.)

Sir Thomas Strange pays:

“Of her own mere authority the mother cannot, in general, give her son to be adopted, any more than she can adopt, her husband living; unless he have emigrated, or entered into a religious order. But his assent may be presumed: and, after his death, she does not want it, a widow having this power, and a wife, also, if the distress be urgent.” (Hindu Law, Vol. I, pp. 81 and 82.)

The Dattaka-Mimansa and the Dattaka-Chandrika both recognize the right of a widow to give her son in adoption on account of the impossibility of obtaining her husband's consent. (Dattaka-Mimansa, IV, 12; Dattaka-Chandrika, I, 31.) The case law is all to the same effect and no authority has been quoted in support of the contrary view. This question must be determined against the appellant.

The fourth and last point, viz., that the adoption was induced by a bribe is one which is not pleaded by the appellant and it is difficult to see how he can be heard to urge it. But even were the plea now permissible the mere fact that the appellant had mixed motives for the adoption would not be sufficient in law to render it invalid. The appellant had a right to adopt a son and no question of fraud or coercion arises. It also appears from the appellant's own statement in the postscript to the agreement of the 23rd September, 1918, that his object in making the adoption was the perpetuation of his family and other sufficient reasons. It is true that in the case of adoption by a widow a corrupt motive has in one case at least been held to be contrary to the shastras [Sitaram Pandit v. Harihar Pandit. That was not a case where the adoption was called in question but one where the point arose whether the payment of a bribe to a Hindu widow as an inducement to her to adopt a son to her deceased husband could be regarded as a valid consideration for a subsequent transfer by the adopted son of a portion of the estate of his deceased adoptive father. In the same High Court in an earlier case it was held that the receipt of money by a widow as an inducement to adopt a son was not sufficient to rebut the presumption that she also made the adoption from motives of duty. The fact that her motives were of a mixed character did not render the adoption invalid [Mahabaleshvar Fondba v. Durgabai]. In a later case in the same Court it was held by the majority of the Full Bench that in the Bombay Presidency a widow having a power jo adopt and a religious benefit being caused to her deceased husband by the adoption, any discussion of her motives in making the adoption was irrelevant [Ramchandra v. Mulji Nanabhai].

This appears to be in accordance with the observations of their Lordships of the Privy Council in Vellanki Venkata Krishna Rao v. Venkata Rama Lakshmi where it was said: “Their Lordships think it would be very dangerous to introduce into these cases of adoption nice questions as to the particular motives operating in the mind of the widow.” In the present case the appellant's right to adopt is not disputed. It must be presumed that his motive was the ordinary one which operates in such cases and this is what he himself has said. If in addition there were other motives of a worldly nature which also induced him to do that which he had an absolute right to do, I can see no reason why where the rights of no other person are infringed, this should in any way affect the validity of his act. One ground upon which the appellant's argument was based was that of public policy but public policy does not concern itself with, the motives which induce a person to exercise his lawful rights without risk of injury to society before concluding this judgment two further matters should be mentioned. The learned Counsel for the appellant which to contend that the appellant was mentally incapable of understanding the effect of his actions, and that the adoption was invalid on that account. This point was not taken in the written statement and was not raised in the issues. Nor was there any evidence which would support the contention.

The evidence at the most shows that he was childish and perhaps eccentric and we refused to permit the question to be raised in appeal.

Further, the learned Counsel for the appellant, after completing his argument in opening the case, and, after the reply on behalf of the respondent, in replying to the whole case, wished to raise the point that there was no evidence that the upanayana ceremony had been performed as a part of the ceremony of adoption and that this was in itself sufficient to invalidate the adoption ceremony. As this question had nowhere been raised and had not even been put before us in the opening of the learned Counsel for the appellant we refused to hear him upon this point at that stage of the case.

In my opinion this appeal fails and should be dismissed with costs.

Foster, J.:— I agree.

Appeal dismissed.