The judgment of the Court was as follows:—

This is an appeal from a judgment of Ameer Ali J., dated August 15, 1935, by which he dismissed plaintiff's suit for declaration of title to certain immoveable properties, situate partly, within the Original Jurisdiction of Calcutta High Court and partly outside, and to certain War Bonds and for recovery of possession of the same.

In order to understand the questions of law which fall for determination in the present appeal, a few relevant facts will have to be stated. Ram Gopal Banerji, a Hindu gentleman, died, possessed of considerable properties within the Original Jurisdiction of this Court, in the year 1860, leaving him surviving his wife Jay Kali, two daughters Ananga Mohinee and Matanginee, two grandsons by Ananga Mohinee, viz., Nani Mohan Chatterji and Priya Nath Chatterji—the former of whom is said to have been given in adoption to Ram Gopal's brother Shib Krishna during Ram Gopal's life-time. Jay Kali lived for a long time after her husband's (Ram Gopal's) death and died in the year 1920. Jay Kali, during her life, made extensive alienations of the properties which she inherited from her husband to Anna Poorna, widow of Shib Krishna, who in turn is said to have alienated the properties belonging to Ram Gopal's estates to some of the defendants and Nani Mohan, qua adopted son, is said to have made similar alienation in respect of some properties of Ram Gopal and his successors have made similar transfers. After waiting for nearly twelve years after the death of Jay Kali, on February 4, 1932, the plaintiffs, claiming to be the reversionary heirs of Ram Gopal, brought the suit in which the appeal arises for declaration of their title to and recovery of possession of a large number of valuable properties within the Original Jurisdiction of this Court. They have impleaded as defendants, the alienees from Anna Poorna, the alienees from Nani Mohan and his successors, as also some of the other reversionary heirs who according to plaintiffs will share Ram Gopal's estate with them.

It is the case of the plaintiffs that Nani Mohan Chatterji was given in adoption to Shib Krishna Banerji, third brother of Ram Gopal, during the latter's life-time and the usual rites and ceremonies necessary for the purposes of adoption were performed but that the adoption by Shib Krishna Banerji was invalid under the Bengal School of Hindu law, as Nani Mohan was his brother's daughter's son and the adoption did not confer upon him the status of a son to the said Shib Krishna Banerji and they submit that Nani Mohan had lost all his rights in the family of his birth. Matangini, the daughter of Ram Gopal, died childless in 1864 and so did Priya Nath Chatterji, the grandson of Ram Gopal. On the death of Ram Gopal, Jay Kali Debee became entitled to all the properties left by him and obtained a Hindu widow's estate in the same. These properties have been described in Schedule “A” to the plaint. It is the plaintiffs' case that Jay Kali Debee died on February 11, 1920, leaving her surviving Mati Lal Chatterji, who was the paternal uncle's daughter's son of the said Ram Gopal Banerji and the plaintiffs alleged that he was sole reversionary heir of the said Ram Gopal Banerji. Mati Lal Chatterji died intestate on November 16, 1920, leaving the plaintiffs and defendants Kali Kanta Chatterji, etc., defendants Nos. 13 and 18, as his heirs and legal representatives. The relationship between the parties to the suit is shown in the genealogical tree which is annexed to the plaint (16-27) and which is appended to the end of our judgment. It may be mentioned here that the whole of the genealogical tree is not admitted by the defendants and we shall have to return to this tree hereafter. To the suit of the plaintiffs have been impleaded a number of defendants who are claiming title to the different properties of the schedule to the plaint, and whom the plaintiffs allege to be in wrongful possession of the properties respectively. Defendant No. 1 Manmatha Nath Mallik is said to be in wrongful possession of premises No. 7, Kyd Street, No. 113, Park Street, Nos. 22 and 22-1, Lower Chitpur Road, in Calcutta and four properties in Tangra, outside the Original Jurisdiction. Similarly, John Boisogomoff, Sree Lal Mangtu Lal and Durga Prasad Khaitan are said to be in wrongful possession of premises No. 7, Kyd Street. The causes of action against the different defendants are stated in paras. 13 to 17 of the plaint and it is not necessary for the purposes of the present appeal to give the details. The plaintiffs claim title to all the disputed properties as the sons of Mati Lal Chatterji who, according to the plaint, was the sole reversionary heir of Ram Gopal Banerji at the time of Jay Kali's death. On these allegations plaintiff found their claim to succeed to the estate of Ram Gopal.

The defendant No. 1, Manmatha Nath Mallik, does not admit the genealogical tree set forth in its entirety and does not admit that plaintiffs are reversioners of Ram Gopal after Jay Kali's death. He does not admit that the adoption of Nani Mohan, if it took place, was an invalid adoption. If the adoption is held to be invalid, he does not admit thereby Nani Mohan lost his rights in the family of his birth and his right to succeed to the estates of Ram Gopal, on the death of Ram Gopal, as his daughter's son. This defendant claims to be the rightful owner of properties Nos. 3, 4, 5 and 14 of the plaint as also No. 1, Short Street. He raises a plea of estoppel and acquiesence, by the eighth paragraph of his written defence, and contends that, without prejudice to any of his contentions aforesaid and without making any admission contrary to what has been stated above, the reversioners of Ram Gopal Banerji including the plaintiffs (if they are reversioners) expectant on the death of Jay Kali having had full notice of the adoption acquiesced in it so as to induce a reasonable belief in others including this defendant in the vahdity of the adoption and this defendant having acted on the faith of such inducement, he submits that the plaintiffs are estopped from challenging the vahdity of the adoption of Nani Mohan.

Prabha Batee, the second defendant to the suit, who is the widow of Nani Mohan, has filed a written defence (see p. 57 of the paper-book). She states that she has. no personal knowledge of the adoption of Nani Mohan or of his upanayan, she denies that the adoption, if in fact it took place, was invalid. She contends that in the event of the Court holding that the adoption of Nani Mohan was invalid, the invalidity of the adoption did not affect the status of Nani Mohan in the family of his birth. She denies the title of the plaintiffs and the defendants Kali Kanta Chatterji and others to the plaint schedule properties and states that besides hersel, defendants Nos. 1 and 2, none of the other defendants have got any interest in the disputed properties. She states that on the death of Nani Mohan she became entitled as his heir to the properties bequeathed to her by his will and she is in lawful possession of the same. She states certain facts regarding litigation, which she started with reference to No. 113, Park Street.

Pramada, the third defendant to the suit, is the widow of Sharat, son of Nani Mohan Chatterji and has filed a separate defence (see p. 31). Amongst other defences she denies the correctness of the genealogical table; she denies that plaintiffs are the reversionary heirs of Ram Gopal; she denies that premises Nos. 32 and 32-1, Neem Tala Ghat Street, ever belonged to the estate of Ram Gopal Banerji.

John Boisogomoff, the fourth defendant in the suit, has by a separate defence (see p. 40) stated that he has been in possession of premises No. 7, Kyd Street, referred to in the plaint, denies the allegations that Nani Mohan Banerji did not become the heir of either Ram Gopal or his brother Shib Krishna Banerji, made in para. 4 of the plaint. He denies that he is in wrongful possession of No. 7, Kyd Street and states that he entered the said premises under a lease of forty years, dated February 1, 1914, executed by Anna Poorna Debee, adoptive mother of Nani Mohan, and denies that the said lease expired in 1920. On behalf of this another defence was raised in course of argument before the learned Judge to the effect that in the particular circumstances of this case Nani Mohan might be regarded as dwyamushyâyana, i.e, the son of two fathers, viz., his father and his adoptive father. This last defence was persisted in before us and will be dealt with later.

Durga Prasad Khaitan, defendant No. 6, was impleaded in the suit in his capacity as receiver, and filed a separate defence (see p. 70). He states that Boisogomoff, to whom premises No. 7, Kyd Street was demised by way of lease for forty years, mortgaged his interests in the said property to the defendant Mangtu Lal Bagaria, defendant No. 5, and that the said Mangtu Lal Bagaria filed a suit on the said mortgage, being suit No. 1687 of 1924, and by a decree in the said suit Khaitan was appointed receiver and contends that as no notice under s. 80 of the Code of Civil Procedure was given to him the suit should be dismissed as against him with costs.

J.C Galstaun, who is the seventh defendant to the suit, by his written defence (p. 20) states that by an indenture dated January 30, 1872, Jay Kali Debee, widow of Ram Gopal, granted and conveyed absolutely and for legal necessity premises No. 113, Park Street, to Anna Poorna Debee and that by an indenture of lease dated May 14, 1906, Anna Poorna Debee leased and demised for ninety years the premises No. 113, Park Street to Boisogomoff and on June 22, 1910, the said Boisogomoff assigned the said lease in favour of Galstaun. He denies that Mati Lal Chatterji was the reversionary heir of Ram Gopal at the time of Jay Kali's death or became at all entitled to the estate of the late Ram Gopal Banerji. He pleads that he spent about two lakhs in improving the property for which he entitled to compensation in any event.

Defendant No. 9, who is interested in premises Nos. 22 and 22-1, Lower Chitpur Road (see p. 65), states that the adoption, if it took place, was valid, but if the Court holds it was invalid there was no change of status.

Defendant No. 11states (p. 53) that the adoption of Nani Mohan was perfectly legal and valid under the Hindu law and that the adoption conferred the full status of a son to Shib Krishna and contends that even assuming that the adoption was invalid Nani Mohan did not lose his rights in the natural family. He also takes the plea of limitation.

Kalee Kanta Chatterji and others (defendants Nos. 13 to 16 and 18) support plaintiffs' case by paragraphs of their written defence (see p. 37) and might be described as the friendly defendants. If the plaintiffs succeed in getting the first declaration these defendants would get a 5/6th share in the disputed properties.

On these pleadings, Ameer Ali, J. framed eleven issues, but all the issues were not tried, as the parties agreed that the first three issues, which will be mentioned presently, should be tried first and, if the disposal of such issues result in the dismissal of the suit, no further issues be tried until the plaintiff should succeed on appeal (see p. 239), when the case might be put back on his list and the other issues tried.

The three issues which are material for the purposes of this appeal are:—

(1) Was Nani Mohan Banerji adopted as a son by Shib Krishna Banerji?

(2) If so, is the adoption valid?

(3) If invalid, did Nani Mohan lose his rights as a son in the family of his birth?

The learned trial Judge has answered issue No. 1 in the affirmative after considering the oral and documentary evidence adduced before him. Issues Nos. 2 and 3 have been answered in the negative. The result has been the dismissal of the suit, for it is common ground that, even admitting the genealogical table filed by the plaintiffs to be correct, Nani Mohan would exclude the plaintiffs, whether he is regarded as the daughter's son of Ram Gopal, in the event of the adoption not being established, or, on adoption being established but held to be invalid, and it being further held that such an invalid adoption did not affect the status of Nani Mohan in the family of his birth.

It is conceded before us that the plaintiffs and the friendly defendants claiming as reversioners are not entitled to get any portion of Ram Gopal's estate unless they can establish, to use the language of the learned trial Judge, that Nani Mohan was neither, in law, the son of Shib Nath nor the adopted son of Shib Krishna. The plaintiffs have appealed and on their behalf the findings of the learned trial Judge on issues Nos. 1 and 2 have not been challenged and the finding on issue No. 3 only has been attacked. But as the respondents are entitled to support the judgment of the learned Judge on grounds which they think have been, wrongly decided against them, the findings of the learned Judge on the first two issues have been subjected to considerable criticism on behalf of the respondents whereas the finding on the third issue have been impugned on behalf of the appellant. We propose, therefore, to consider each of the issues separately and to see whether the learned Judge's conclusions on each of the issues are right or not.

Taking issue No. 1 as to the fact of adoption of Nani Mohan by Shib Krishna, it appears the oral evidence is scanty and learned counsel for the appellant has taken us first through the documentary evidence and then dealt with the oral evidence. We shall, therefore, refer in the first instance to the documentary evidence on the point.

In Ex. A (p. 255), dated June 19, 1860, we find a statement by the adoptive father Shib Krishna Banerji, in a deed of trust, that Nani Mohan is his adopted son. The material portion is at p. 257, lines 38:—

And whereas under the circumstances aforesaid the said Shib Krishna Banerji is desirous of making such provision as he may by law be enabled to do for the support of his wife and of his adopted son Nani Mohan Banerji and of settling such part of the property as by law he has the power to dispose of.

It appears that Shib Krishna received the judgment and sentence of the Supreme Court on the Crown side and that he was transported for the term of fourteen years from April 5, 1860; he executed the aforesaid deed of trust in favour of Raja Kamal Krishna Bahadur for the benefit of his wife and adopted son, Nani Mohan. This is clearly a statement made by Shib Krishna and is admissible in evidence under s. 32, cl. (5) of the Indian Evidence Act, as there is a statement regarding relationship by adoption before any controversy had arisen regarding the adoption.

The next document, Ex. C, p. 262, is the affidavit of Harish Chandra Chatterji, a son-in-law of Shambhu Chandra Banerji, one of the deceased sons of Radha Madhab Banerji, who on oath said that Nani Mohan Banerji was the adopted son of Shib Krishna and that he is an infant of the age of twelve years. This affidavit is dated June 22, 1860.

The next document, Ex. 2, p. 263, is an indenture dated July 4, 1866, between Shib Krishna Banerji, then a felon convict undergoing sentence of transportation, and Charles Hogg, Administrator-General of Bengal and Anna Poorna Debee in which there is a recital that Nani Mohan was the adopted son of Shib Krishna.

The next document, Ex. A, p. 271, is a conveyance executed on January 30, 1872, by which Jay Kali conveyed her widow's estate in all the moveables and immoveables left by her husband Ram Gopal in favour of Anna Poorna Debee for the consideration of the latter paying certain debts of Jay Kali and for her providing Rs. 300 per month for the maintenance of Jay Kali. In this document, there is a recital that Nani Mohan is the adopted son of Shib Krishna (p. 272, 132 and 33).

The document to be considered next is a petition by the Administrator-General of Bengal for letters of administration de bonis-non, with the will annexed, to the estate of Radha Madhab Banerji and there is a statement in the petition that “Nani Mohan Banerji is the adopted son of the said Shib Krishna Banerji;”

The next document is the written statement of Anna Poorna, filed in suit No. 306 of 1882, brought by Jaya Kali against her to set aside the conveyance executed by the former on June 30, 1872 (referred to already), on the ground that she was induced to execute it fraudulently and by undue influence. In this written statement, there is an admission by Anna Poorna that Nani Mohan was her husband's adopted son (see pp. 291, 468). This is the statement of a lady, who along with her husband took the child in adoption. This written statement was filed in the year 1882.

We come next to the plaint filed in the year 1884 by Nani Mohan for the construction of the deed of trust of the year 1860 and in this plaint which is verified Nani Mohan stated that the nearest relative of Shib Krishna at the time of the execution of the deed of trust was plaintiff, i.e, Nani Mohan himself, (see p. 206).

By a registered will, dated March 12, 1902, Anna Poorna gave a legacy of Rs. 500 to Nani Mohan, describing him as “the adopted son of my husband,” see p. 312.

In an affidavit in opposition filed on August 27, 1908, Nani stated that—

About 58 years ago the said Shib Krishna Banerji and his wife Sreematee Amia Poorna, since deceased, took me in adoption according to all rites and ceremonies prescribed by Hindu religion, therefore nursed me as such adopted son as aforesaid.

We do not attach much value to this statement as evidently Nani Mohan was only two years of age at the time of the adoption, having been born in 1848 and could not have remembered what then happened. This may be evidence that in 1908 he was asserting his rights as adopted son and was contending that Anna Poorna having taken him in adoption was not entitled to dispose of her property without making provision for him.

In the year 1924, Nani Mohan granted a lease to Abdul Sattar, one of the defendants, and asserted therein that he was the son of Shib Krishna Banerji and there are recitals in the lease of a consent decree between Nani and Pramada Debee by which it was declared that the said Nani Mohan became entitled on the death of the said Jay Kali Debee to the properties belonging to the state of said Ram Gopal Banerji (see p. 416).

From 1860 up to 1924, Nani Mohan was treated as the adopted son. The statements made by Shib Krishna and Anna Poorna in the ancient documents are admissible as evidence under s. 32, cl. (5) of the Evidence Act. The cumulative effect of this large mass of documents is to give rise to presumption and to a very strong presumption that the adoption did in fact take place, and that the conditions relating to the adoption were duly fulfilled. The adoption was recognised and acquiesced in for a number of years by Shib Krishna and his wife Anna Poorna who made the adoption, and a long course of recognition and acquiescence on the part of the persons who were best acquainted with the facts gives rise, in our opinion, to the inference that the necessary ceremonies and rites connected with the adoption were duly performed.

The oral evidence is scanty and inadequate. It consists of statements by persons who are said to have heard from people who were present at the adoption that the necessary ceremonies were performed. This class of evidence falls under the description of hearsay but is admissible under s. 32, cl. (5) of the Indian Evidence Act. The weight which is to be attached to such evidence is not very great and such evidence might have been introduced to add strength to the inferences which are to be drawn from the documents themselves. Oral evidence on this head is of this type:—

Subodh Chandra Mukherji is asked:—

Q. 276. You said that you heard about the adoption of Nani from certain people?

A. Yes, from my paternal grandfather and grandmother.

Q. 278. Did you hear anything in this connection from Nani at all?

A. Yes, on many occasions he related this story.

Q. 279. What did Nani tell you about it?

A. He said that he had heard from his mother that he had been brought to the house when a boy of two years.

Q. 290. But when Nani was adopted you were not even born?

A. Yes, that is so.

This is really hearsay upon hearsay and it is difficult to say that this evidence is either cogent or such that any definite finding can be arrived on it alone.

It is true Neeroda Debee is a witness aged 72 years and all that she says is that Nani was treated as the adopted son and he behaved as such. At p. 92 she says that Nani was taken in adoption by Shib Krishna. She also states that she heard about this adoption from her mother. It is pointed out by Mr. H.D Bose, learned counsel for the appellant, that there is no cross-examination of this witness on this point. It seems that is so. There is some evidence that Nani was living in the dwelling house of Shib Krishna and that is an important piece of evidence but may be explained on the footing that Nani might have been a foster son. The learned trial Judge who had some of the witnesses before him accepted the oral evidence on the factum of adoption to the limited extent to which it has been admitted and we do not propose to dissent from this view of the learned Judge. See p. 226 (top). On the question of “foster son” much comment has been made by Mr. S.N Banerjee, learned counsel appearing for defendant No. 1, as the word “pâlan putra” occurs in the genealogical tree filed on behalf of the plaintiffs where the word “pâlan putra” occurs against Nani Mohan's name and it is contended that, on plaintiff's own document, Nani Mohan was not an adopted son but a foster son. Mr. H.D Bose contends that the word “pâlan putra” is a mistake for pâlah putra which means “adopted son.” It is not necessary to decide on this conflict of meanings as we do not propose to rest our decision on this piece of documentary evidence. The book was published in 1325 B.S—1918. There can be no question that the word commonly used for an adopted son is posya putra. There is enough of documentary evidence apart from this genealogical tree which supports the case of adoption.

We agree with Ameer Ali, J. in his finding with regard to issue No. 1 and hold in agreement with him that his adoption did take place as a fact with necessary rites and ceremonies.

We proceed to deal with issue No. 2 as to whether the adoption is bad or invalid under the Hindu law on the ground that the adoption being of a brother's daughter's son was contrary to the “marriage rule” which is to the effect that no one can adopt a person whose mother the adopter could not have legally married. Ameer Ali, J. has held that the adoption is bad. The plaintiffs appellants maintain that the adoption is bad whereas the respondents maintain that the adoption is valid under the Hindu law. The question in this appeal is which of the two conflicting contentions is right. The question has to be determined—

(1) with reference to the texts of Hindu law and the commentaries on the law of adoption;

(2) with reference to the view of authoritative writers on Hindu law, both ancient and modern; and

(3) with reference to decisions of the different High Courts in India and the decisions of the Privy Council.

Let us see how the matter is dealt with in the texts of Hindu law and the commentaries on the law of adoption.

The oldest original texts bearing on the point are contained in the Dattaka Chandrikâ. In s. i, para. 11, the author quotes from the sage Sakala to the following effect:—

Sákala declares this: Let one of a regenerate tribe, destitute of male issue, on that account, adopt as a son, the offspring of a sapinda relation particularly: or also, next to him, one born in the same general family. If such exist not, let him adopt one born in another family: except a daughter's son and a sister's son and the son of a mother's sister.

In para. 17 of the same section, the author quotes the sage Saunaka, who after pointing out from what classes adoption should be made says:—

But a daughter's son and a sister's son are affiliated by sudras. For the three superior tribes, a sister's son is nowhere [mentioned as] a son.

In s. ii, para. 7, a text of sage Saunaka is quoted to the following effect:—

Having taken him by both hands, with the recitation of the prayer, commencing,—“Devasya-twa, etc.” having inaudibly repeated the mystical invocation—“angad-ange, etc.” having kissed the forehead of the child; having adorned with clothes, and so forth, the boy bearing the reflection of a son.

In para. 8, Dattaka Chandrikâ contains the following comment on the above text of Saunaka:—

The resemblance of a son,—or in other words,—the capability to have been begotten by the adopter, through appointment, and so forth.

Nanda Pandit, the author of the Dattaka Mimânsâ, writing in the early part of the 17th century, some centuries later than the conjectured date of the Dattaka Chandrikâ, gives the same quotations from Sákala and Saunaka and similar comments on them, as we will show presently. The matter is discussed in s. ii, Arts. 74, 107, 108; s. v, Arts. 16 to 20 of the Dattaka Mimânsâ.

In Art. 74, the author quotes from Saunaka the text where the sage after stating the class from whom a son is to be adopted says:—

Of all, and the tribes likewise, [in their own] classes only; and not otherwise. But a daughter's son, and a sister's son are affiliated by sudras. For the three superior tribes, a sister's son is nowhere [mentioned as] a son.

In Art. 107, Nanda Pandit cites the text of Sâkala, which has already been cited in the Dattaka Chandrikâ, s. i, Art. 11. And in Art. 108, Nanda Pandit makes the following comment:—

By this it is clearly established that the expression “sister's son” [in the last sentence of Saunaka's text, s. 74.] is illustrative of the daughter's son, and mother's sister's son, and this is proper: for, prohibited connection is common to all three. To enlarge would be Useless.

In s. v, para. 16, the author comments on the word “The reflection of a son” and says:—

The resemblance of a son,—and that is, the capability to have sprung from [the adopter] himself, through an appointment [to raise issue on another's wife] and so forth………………

In para. 18, the author returns to Saunaka's text and says:—

Here even, the term “sister's son” is illustrative of the whole not resembling a son, for prohibited connection is common to them all. Now, prohibited connection is the unfitness, [of the son proposed to be adopted], to have been begotten by the adopter himself, through appointment [to raise issue on the wife of another].

In para. 19, the author says:—

The mutual relation between a couple being analogous to the one, being the father or mother of the other, connection is forbidden; as for instance,—“the daughter of the wife's sister, and the sister of the paternal uncle's wife.” The meaning of the text is this: Where the relation of the couple, that is of the bride and bridegroom, bears analogy to that of father or mother; if the bridegroom be, as it were, father of the bride, or the bride stand in the light of mother, to the bridegroom, such a marriage is prohibited connection. The two examples illustrate these cases in their order.

In para. 20, the author comes to the conclusion that one with whose mother the adopter could not have legally married must not be adopted.

For the appellants, it has been contended that the two texts of Saunaka and Sakala as interpreted above by Dattaka Chandrikâ and Dattaka Mimânsâ, which enjoy the highest reputation throughout India [see Lord Kingsdown in Rungama v. Atchama] and which must both be accepted as bearing high authority for so long a time that they have become imbedded in the General Law [see Lord Hobhouse in Bhagwan Singh v. Bhagwan Singh], can leave no room for doubt that it is a rule of Hindu law that no one can adopt a person whose mother he could not have lawfully married—a rule which has been described as the marriage rule in Ameer Ali, J.'s judgment.

On the other hand, it has been contended, both by Mr. S.N Banerjee and Mr. Rishindra Nath Sarkar, appearing for different defendants, that the rule should be confined only to the three specific cases of daughter's son, sister's son and mother's sister's son, mentioned in the text of Saunaka as applying to the three regenerate classes and the gloss of these two commentators, the authors of Dattaka Chandrikâ and Dattaka Mimânsâ, should not be accepted, in so far as they deviate from the Smriti, i.e, the texts of sages or institutional writers like Saunaka and Sakala. There is, no doubt, much force in this contention of the respondents, and we could have given effect to it, if this position could be established with regard to the matter now under consideration. But, unforlunately for the contention of the respondents, the text of Saunaka quoted in both the Chandrikâ and Mimânsâ uses the expression “putrachhâyabaham sutam” i.e (the reflection of son), when describing what kind of son is to be adopted and with what ceremonies. The material portion of the text has been translated thus by the parties in a separate paper which have been used before us in argument and is as follows:—

The acceptor having with clothes and other things adorned the boy bearing the reflection of a son (i.e, image or shadow of a son); being accompanied with dancing, songs, music and benedictory words.

On this part of the case the validity of the adoption of brother's daughter's son has been sought to be supported by Mr. Rishindra Sarkar appearing for Prabha Batee Debee, defendant No. 2, on the following grounds:—

1. On a proper interpretation of the texts of Sâkala and Saunaka, the rule that one cannot adopt a person whose mother he could not have legally married should be confined to the three specific cases of daughter's son, sister's son and mother's sister's son.

2. The marriage theory or the rule of contrary relationship should be rejected as it is really a deviation from the Smritis, on the authority of the decision of the Judicial Committee in the case of Puttu Lal v. Parbati Kunwar where Sir John Edge observed that caution is required in accepting the glosses of Nanda Pandit where they deviate from, or add to the Smritis.

3. This marriage theory or the theory of prohibited relationship is recommendatory and that the rule of factum valet applies and applying this doctrine the adoption should be held valid.

4. From the facts as found and admitted in this case the Court should presume the adoption not only valid under the general principle of law but also valid by custom.

5. The point is covered by judicial decisions which, hold that such an adoption is valid.

We propose to deal with these points in the order in which they have been stated to us. On the ‘first point, it has been argued that the words the boy bearing the reflection of a son’ are merely descriptive of the son and cannot be regarded as a rule of law. The contention is that it is a descriptive ephithet which is applied to the child adopted and reliance is placed in support of this view on a passage in the case of Haran Chunder Banerji v. Hurro Mohun Chuckerbutty. It is said that in s. ii, paras. 7 and 8 of the Dattaka Chandrikâ, the author, when he uses the following language “or in other words the capability to have been begotten by the adopter through appointment and so forth” could not have intended to mean marriage by the words “and so forth.” The Sanskrit words are “niyoga âdinâ” and it is said that the word “âdinâ” which literally means et cetra cannot include marriage, for, according to the rule of construction, niyoga or raising issue by appointment is a practice which is condemned in the present age and the word “âdinâ” must refer to some other disapproved form of marriage. This contention is contrary to the meaning attached to the words by Sanskrit scholars of repute like Madhu Soodan Smritiratna, who in his commentary on Dattaka Mimânsâ, at pp. 98 and 99, interprets the word “âdinâ” to mean “marriage.” Our attention has been drawn to a passage from Mr. Golap Chandra Sarkar's Tagore Lecture on Adoption, p. 320, where Pandit Bharat Chandra Shiromani, the Sanskrit commentator of the Dattaka Mimânsâ, explains the expression (âdi) and so forth to indicate, “the receipt of wealth” as remuneration for the service. Our attention has been further drawn to passages from Mr. Mandalik's commentaries on the Vyavahara Mayukha, pp. 479-495, where the origin and binding character of this rule have been criticised with great learning and force by the author of the commentary. Mr. Mandalik, however, admits that the Dattaka Chandrikâ and the Dattaka Mimânsâ contain this prohibition. It is sufficient for our purposes to say that the rule was affirmed by the High Court of Madras after a full examination of Mr. Mandalik's argument. See Mínakshi v. Rámanádá. We adopt the reasoning of the Full Bench of Madras High Court in refutation of Mr. Mandalik's arguments.

We are, also, not unmindful of the fact that Dr. Jolly, in his Tagore Lectures in 1883 at p. 163, says that a close examination of the original authorities shews there is very little, if anything, in the Sanskrit treatise to warrant the formation of such a rule as this and that Mr. Golap Chandra Sarkar, in his Tagore Lectures on Adoption, at p. 332 and onwards, comes to the conclusion that the marriage theory is not supported by any Sanskrit writer on adoption.

We shall show presently that the rule so laid down was stated by Mr. Sutherland, both the Macnaghtens and both the Stranges, and, as limited to the three regenerate classes, it has been affirmed by a singularly strong series of authorities as forbidding the adoption of the son of a daughter, or of a sister or of an aunt.

With regard to Mr. Mandalik's criticism it may be said that he is careful enough to state, at p. 486 of his commentary on Vyavahâra Mayukha, that there is not the least ground for supporting the rule so far as a whole of Western India is concerned; he summarises his conclusions as follows:—

Briefly stated, the result of my investigations on the subject amounts to this, that neither on any general principle of law nor on texts, nor on custom, is there any the least ground for supporting the alleged prohibition at any rate so far as the whole of Western India is concerned.

This is perhaps the appropriate place to consider the question of the rule of contrary relationship (viruddha sambandha) with reference to authoritative writers on Hindu law and to show that this rule has been referred to for a century.

Mr. Sutherland, in the year 1821, laid down in his synopsis a rule on this subject to the following effect:—

The first and fundamental principle is that the person to be adopted be one who by a legal marriage with his mother might have been the legitimate son of the adopter. (Stokes' Hindu Law, p. 664.)

Sir Francis W. Macnaghten in 1824, writing in reference to Bengal, speaks as follows:—

As to the three superior classes, the rule is that they cannot adopt a son whom it would be incest to have begotten and conversely that they may adopt a son, if without incest they could have begotten him. [Considerations on the Hindu Law, as is Current in Bengal (1824), p. 150.]

Sir Thomas Strange in 1825 adopts the proposition as laid down by Mr. Sutherland and says:—

One, with whose mother the adopter could not have legally married, must not be adopted; and the exclusion seems to hold applying the principle to the sex, where the adoption is by a female. (Hindu Law, Vol. I, p. 83.)

Mr. W.H Macnaghten in 1829 observes:—

(The party adopted) should not be the son of one whom the adopter could not have married, such as, his sister's son or daughter's son. (Principles and Precedents of Hindu Law, Vol. I, p. 67.)

Mr. Justice Strange in 1863 says:—

84. According to an original text, the child to be adopted should be such as may be looked upon as “the reflection of a son.” This is held to mean “the resemblance of a son” or such a one as the adopter might have legally begotten (Dattaka Mimansâ of Nanda Pandit, v. 16); that is, one whose mother he might have legally married (I, 83; Sutherland 223).

85. Pursuant to this rule, a brother, a paternal or maternal uncle or a daughter's or sister's son could not be adopted (I, 83). (Mr. Justice Strange's Manual of Hindu Law, p. 22, 2nd ed.)

Mr. Grady in 1868 merely reproduces Mr. Sutherland and Sir T. Strange. (See A Treatise on the Hindu Law of Inheritance by S.G Grady, 1868, pp. 66 and 67).

Mr. J.D Mayne, in 1878 (Mayne's Hindu Law and Usage, p. 109, s. 118), while adopting the above-mentioned rule, notices with disapproval the introduction of another fiction that the adopting mother should be such as could have been married by the natural father of the adopted. (See s. 120, p. 111.)

In the ninth edition of Mr. Mayne's Book, at p. 180 it is stated that the Dattaka Chandrikâ, Dattaka Mimânsâ, Sanskâr Kaustubha, the Dharma Sindhu and the Dattaka Nirnaya contain this prohibition.

We now proceed to consider the rule with reference to the judicial decisions in their chronological sequence as far as possible.

Morun Moee Debeah v. Bejoy Kishto Gossamee recognise the rule. That was the case of the adoption of the grandnephew which was held not to be repugnant to Hindu law. In arriving at this conclusion, the learned Judges made the following observation recognising the existence of the marriage rule:—

It is contended that it would have been unlawful for respondent, the adopting father, to marry his nephew's wife, the mother of the adopted boy; and that, on the principle that it is not lawful to adopt one whom the adopter could not lawfully beget, respondent could not adopt his grand-nephew. The commentators, however, in illustrating this principle, point out that a man must not adopt his sister's son or daughter's son. In such cases the operation of the principle is obvious enough. But there is no reason whatever why the respondent should not have lawfully married his nephew's wife, the mother of the adopted boy, previous to her marriage with the boy's father.

Mr. Justice Holloway recognises the existence of the rule amongst the Brahmins in Madras. See Narasammál v. Balarámáchárlu. The learned Judge says:

Mr. Sutherland, the greatest English authority on the subject (p. 223), lays it down as a fundamental principle that the person to be adopted must be one with the mother of whom the adopter could legally have intermarried.

Nanda Pandit lays it down in distinct terms that the daughter's son is not such a reflection of a son as can legally be taken in adoption, and the commentator, Dattaka Chandrikâ, s. ii, para. 8, defines the reflection of a son as “the capability to be begotten by the adopter through appointment and so forth”.

Jivani Bhai v. Jivu Bhai. The rule seems to have been recognised in this case:—

On the point of the validity of the adoption of the son of a person with whom the adopter could not have intermarried, there will be found great conflict of opinion among the pandits, but none whatever upon the authorities.

Chinna Nagayya v. Pedda Nagayya. The rule is also recognised in the above case although held not applicable to sudras. It is said:—

The rule of restriction is based as was the similar rule of Roman law upon the principle that a man cannot adopt one with whose mother he could not legally have intermarried.

Srírámulu v. Rámáyya. Mr. Justice Muttusami Ayyar recognised the rule in this case. The learned Judge said:—

The restriction on the selection of a person to be adopted by reason of his mother's relationship to the adopter is derived from the texts of Saunaka and Manu cited in Dattaka Mimânsâ, s. v, para. 16, and in Dattaka Chandrikâ, s. ii, para. 8, which prescribe that the person selected for adoption should bear the “reflection of a son” (sadirsa). This phase is interpreted in those treatises as meaning “capacity to have sprung from the adopter himself through an appointment to raise up issue on another's wife and so forth”, and the phrase “so forth” is explained to refer to a legal marriage having been possible between adopter and the mother of the boy fixed for adoption.

Haran Chunder Banerji v. Hurro Mohun Chuckerbutty. In this case Morun Moee's case was followed but the learned Judges made the following observation which have been very much relied on behalf of the respondents:—

We think it by no means clear that the phrase “the reflection of a son” was intended to bear the limited signification which he has put upon it, and looking to the place in which it is found, we think it is very questionable, whether it was intended to limit the generation from which a son might be adopted, or is anything more than a descriptive epithet applied to the child adopted. The phrase, as has been said, occurs only in the portion of the books which prescribes ceremonial, and not in the part which lays down rules as to the selection of a son. Had the lawgiver intended to limit the choice to the one generation next below the intending adopter, he would have surely laid it down distinctly, and not have left it to be doubtfully, and with much dispute evolved from an epithet applied to the child in the verses describing the ceremonies to be performed, and as to whom, those ceremonies have been nearly completed. The passage has no doubt provoked discussion and difference of opinion amongst the pandits, but so far as either common sense or any judicial authority goes, there is no ground for holding that a grand-nephew or a cousin's grandson, when adopted, does not equally with a nephew bear the reflection, of a son. We prefer, therefore, to follow in the course pursued by the Courts hitherto, and to hold that the adoption by Naba Kishore Banerji of Bishweshwar was valid.

Much reliance, however, has been placed on this passage by the learned advocate for defendant No. 2 for supporting the contention that the words “reflection of a son” being merely a description cannot be held to be a rule of law.

We cannot accept the view taken in 6 Calcutta, that the words “reflection of a son” were a mere description. It is not so treated by the authors of Chandrikâ and Mimânsâ whose authority on questions of adoption is firmly established and which treatises are new sources of the Hindu law of adoption.

This “marriage rule” came up for consideration in the year 1887 before a Full Bench of Madras High Court in Mínakshi v. Rámanáda and four of the learned Judges and Sir Arthur Collins, C.J, who constituted the Full Bench, came to the conclusion that it is a general rule of Hindu law that there can be no valid adoption unless a legal marriage is possible between the person for whom adoption is made and the mother of the boy who is adopted in her maiden state. In arriving at this conclusion, they relied on Saunaka's texts cited in Dattaka Mimânsâ and Dattaka Chandrikâ previously quoted, viz., that in order that one may be eligible for adoption “one should bear the reflection of a son” and the interpretation put by both the commentators that these words denote the capability to have been begotten by the adopter through appointment and so forth.

The Full Bench answered completely the learned criticism on this point of Mr. Mandalik in his translation of Vyavahâra Mayukha and Yajnavalkya. The rule came, up for examination before a Full Bench of the Allahabad High Court in the case of Bhagwan Singh v. Bhagwan Singh in the year 1895, and the rule was reaffirmed by Mr. Justice Banerji and it was held that the adoption by a Hindu belonging to one of the three regenerate classes of his, mother's sister's son is prohibited according to Hindu law of Benares; School and that the Dattaka Chandrikâ and the Dattaka Mimânsâ are works of paramount authority on questions relating to adoption in. India. It was further held that the prohibition is not merely directory and cannot be validated by the rule of factum valet. On the other hand the majority of Judges, including Sir John Edge, Chief Justice, were of opinion that the Hindu law of Benares School does not prohibit an adoption amongst the three regenerate classes of sister's son, of a daughter's son and of a mother's sister's son of the adopter. It is important, at this stage, to note that an appeal was taken against this decision of the Full Bench to the Privy Council and the decision of Mr. Justice Banerji and Mr. Justice Aikman who agreed with him was upheld and the decision of the majority of the Full Bench was reversed. See Bhagwan Singh v. Bhagwan Singh. Lord Hobhouse in delivering the judgment of the Board quoted the original texts bearing on the point as contained in Dattaka Chandrikâ and Dattaka Mimânsâ and reaffirmed the observations of Lord Kingsdown in Rungama v. Atchama that both the Mimânsâ and the Chandrikâ must be accepted as bearing high authority for so long a time that they have become embedded in general law. Their Lordships referred to the texts of Saunaka that the adopted boy should bear the reflection of a son and the comment of the Dattaka Chandrikâ: “the resemblance of a son, or, in other words, the capability to have been begotten by the adopter through appointment and so forth.”

Their Lordships then proceed to make the following observations with regard to the weight which is to be attached to the texts of the two sages Saunaka and Sakala, which are relevant to the matter now under discussion:—

The learned Chief Justice then objects that the text of the two rishis are detached from their context and so are rendered of no value; and that as regards Sakala there is no information where the writer of the Chandrikâ obtained his text, and that its genuineness is doubtful. This objection is strengthened by the fact that the greatest of the sages do not mention any such prohibition; neither Manu nor Vasistha, nor Yajnavalkya nor Narada; while one ancient sage, called the holy Yama, expressly assets the right to adopt a sister's son. Those objections must receive the same answer. It may be true, though it is impossible now to say, that the Dattaka Chandrikâ is the sole authority for the texts there quoted and afterwards copied by Nanda Pandit; but it still remains the fact that the texts have been so quoted for several centuries and have so been received into the body of Hindu law.

Taking then the texts as they are given, and adding to them such weight as the commentators possess, what is enjoined by them? The learned Chief Justice points out that Saunaka may mean a legal prohibition, or a moral admonition, or merely to state a fact, or to indicate a preference for daughters' and sisters' sons among sudras. Certainly if the question were new, the learned Judge's argument would have to be very carefully weighed before it could be rejected. Much of the reasoning which has prevailed with their Lordships in the prior cases would apply to this case; and on some points, such as the silence of other great lawgivers and the existence of a sacred text in an opposite sense, with greater force. But their Lordships find an antecedent difficulty; for they have to consider whether the present question can be treated as an open one.

In Jai Singh Pal Singh v. Bijai Pal Singh the rule was recognised and it was held that the rule of Hindu law that a Hindu cannot adopt a child whose mother he could not have lawfully married does not apply “e converso” to the case of an adoption made by a widow under authority from her deceased husband, such an adoption being in law an adoption made by the widow as agent on behalf of her husband.

In Appayya Bhattar v. Vengu Bhatta the rule was recognised. That was a case which referred to the adoption of a brother's daughter's son as is the case before us, but there the adoption was held valid on the ground of custom.

Puttu Lal v. Parbati Kunwar was a case before the Privy Council. This rule was expressly recognised although its extension by Nanda Pandit to adoption by females was not approved of. Sir John Edge in delivering the judgment of the Judicial Committee upheld the adoption made by a Hindu widow by virtue of her deceased husband's authority of her brother's son, and referred to the rule in question in the following passage:—

It was pointed out by Banerji, J. in Jai Singh Pal Singh v. Bijai Pal Singh, on this question as to whether a widow can lawfully adopt to her deceased husband a son of her own brother, that Nanda Pandit in the Dattaka Mimânsâ extended to adoption by females the rule of Hindu law that no one can be adopted as a son whose mother the adopter could not have legally married, an extension by Nanda Pandit which is not based upon the authority of any of the Smritis or institutes of sages.

It is clear from the above passage that the Privy Council have expressly reaffirmed the rule, which has been accepted by all the Courts in India except Bombay where the rule is recognised with reference to the actual cases mentioned in Dattaka Mimânsâ, viz., daughter's son, sister's son and mother's sister's son as will appear from an examination of the following Bombay cases: Ramchandra v. Gopal; Yamnava v. Laxman Bhimrao; Gajanan Balkrishna v. Kashinath Narayan; Subrao Hambirrao v. Radha Hambirrao and Mallappa Parappa v. Gangava.

Indeed, these are the cases in Bombay upon which Mr. Rishindra Sarkar relied in support of his third and fifth contentions that the marriage theory is a recommendatory rule and the doctrine of factum valet applies to cases outside the three specific cases mentioned in the Smriti texts, and that the point is covered by the judicial decisions in his favour. The Bombay decisions no doubt support him but we are unable to accept his contentions (third and fifth), in view of the pronouncement of the Judicial Committee in Puttu Lal's case and having regard to the view taken by the other High Courts in India regarding the prohibitory nature of the marriage rule.

It remains to notice the fourth contention of the learned advocate of defendant No. 2 that from the facts, as found and admitted in this case, the Court should presume adoption to be valid not only from the general principles of law but also by custom, and he relies on in support of his contention on a decision of the Madras High Court in Gópáláyyan v. Rághupatiáyyan where the adoption of a sister's son was upheld solely upon its having been recognised for a long time and the impossibility of cancelling it without seriously affecting the Tights of the adoptee. We are unable to accept this contention for, in our opinion, the subsequent behaviour of the parties could not make that an adoption which really was not one.

The question of the validity of adoption of brother's daughter's son amongst the twice born Hindus came up for consideration recently before the Oudh Chief Court which held against the validity of the adoption casing its decision on the following passage in the decision of the Judicial Committee in Puttu Lal case which should be reproduced here as it emphasizes the rule expressed in another passage in the same case already quoted. Sir John Edge said again:—

In Srírámulu v. Rámáyya, the adoption of a son of a wife's brother was held to be a valid adoption, and it was rightly pointed out that the rule of Hindu law that a legal marriage must have been possible, between the adopter and the mother of the adopted boy refers to their relationship prior to marriage.

With regard to this passage Mr. Ramehdra Nath Sircar, learned counsel appearing for one of the defendants, appearing with Mr. S.M Bose, contends that it is innocuous, for the extent and scope of the rule was not brought into consideration before their Lordships. We are unable to accede to this argument for there was no point in their Lordships referring to the rule unless for the purpose of showing that the rule exists but that it had been wrongfully extended to the case of adoption by females by Nanda Pandit. If no such rule existed in the opinion of their Lordships so far as the adoption by the males are concerned their Lordships would have said so. We are told, also, that if we hold that the adoption in question was invalid it will have a far reaching effect and the legitimacy of the children born of the marriage between Nani Mohan and his wives may be questioned. We are by no means satisfied that such an unfortunate consequence will follow, but this is not the time or the place to decide it. [See Mayne on Hindu Law.]

It has been pointed out by Mr. Mukherjea, counsel for the fourth respondent, that if the rule of Hindu law in question be confined only to the three specified cases it would be possible in Bengal to adopt the father's sister's son although marriage of the adopter with his father's sister will be absolutely repugnant. He also meets the argument that the word âdinâ after the word niyoga can only refer to some inferior kind of marriage by saying that niyoga is mentioned first, as it is an old institution which existed in early times although it was severely condemned by Manu.

Mr. H.K Bose, counsel for respondent No. 11, has tried to support the adoption on the ground of dwyamushyâyana adoption. He contends that Nani Mohan being the son of two fathers his right of inheritance existed in both families. One meaning which is given to the word dwyamushyâyana is that of a son who has been adopted with an express or implied understanding that he is to be the son of both fathers. This plea was not taken in the written statement and no evidence was led with regard to this stipulation, although the matter was touched by Ameer Ali, J., who did not think it necessary to express any opinion of his own on it. There is a kind of temporary adoption where the boy is taken from a different gotra after the tonsure has been performed in his natural family. He performs the ceremonies of both fathers and inherits in both families. This form of adoption, Mr. Mayne points out, is now obsolete. (See page 240 Mayne, Hindu Law, 9th Ed.) As the question depends on disputed facts it would not be right to allow it to be raised in appeal, no plea having been taken in the written statement.

We now proceed to deal with the effect of the invalidity of the adoption, having held that the adoption of a brother's daughter's son is invalid under the Hindu law as current in Bengal. On behalf of the appellant, it has been strenuously contended, by Mr. H.D Bose, that Nani Mohan's status in the natural family ceased as soon as his father gave him in adoption with necessary ceremonies. He contends that as soon as the giving was complete by acceptance the filial relation between Nani Mohan and his natural, father ceased and although the adoption is invalid. Nani Mohan lost all his rights in the natural family and he may be in the position of a quasi-adopted son with certain limited rights. He asked us to infer this effect of the invalidity of the adoption from s. iii, paras. 1, 2 and 3 of the Dattaka Mimânsâ. In para. 1 of s. iii, the author states that it has been declared that one different by class must not be adopted; should this rule be transgressed what would be the case? In reply to this question, Saunaka says:—

If one of a different class should, however, in any instance have been adopted as a son, he should not make him the participator of a share.

This is the doctrine of Saunaka. It is argued from this that in every case of transgression of a legal precept regarding adoption the adopted son is not to be the participator of a share of the inheritance from the adoptive father and that he is entitled to food and raiment only from him in view of s. iii, para. 3 of Dattaka Mimânsâ. We do not think that this section covers the present case. It must be limited to the particular rule transgressed. Mr. Mayne considers this question of very great importance which seemed plain enough in theory but which appears to be unsettled at the time the last edition was published in 1922. Mr. Mayne, however, observes: “prima facie one would imagine that it would confer no rights in the adoptive family and take away no rights in the natural family.” In support of his contention, Mr. Bose has relied on the case of Rajcoomaree Dossee v. Nobocomar Mullick. The passage relied on is at p. 143 which is as follows:—

It has been said, too, on one side, and denied on the other (neither side producing either evidence or authority in support of their contention), that a “dattaka” or son given would forfeit the right to inherit to his natural father, even though he might not, for want of sufficient power, have been duly adopted into the other family.

This proposition seems to be contrary to reason, but for all that may be good Hindu law. But from the enquiries we have made we believe the true state of the law on this subject to be this. There may undoubtedly be cases in which a person whose adoption proves invalid may have forfeited his right to be regarded as a member of his natural family. In such a case some of the old texts speak of him as a slave entitled only to maintenance in the family into which he was imperfectly adopted. But one very learned person has assured me, that the impossibility of returning to his natural family depends not on the mere gift or even acceptance of a son, but on the degree in which the ceremonies of adoption have been performed; and that there is a difference in this respect between Brahmins and sudras; a Brahmin being unable to return to his natural family if he has received the Brahrhinical thread in the other family; the sudra, if not validly adopted, being able to return to his natural family at any time before his marriage in the other family.

We are unable to regard this passage as giving rise to any rule of law upon this subject. The words in the earlier part of the quotation “neither side producing either evidence or authority in support of their contention” seems to have been overlooked and this passage is cited as an authority for some alleged rule. It appears to us that the observations in the passage are obiter.

In order to make the case in Boulnois applicable to the facts of the present case it has been contended that the sacred thread ceremony of Nani Mohan took place in his adoptive family. There is no evidence except hearsay with regard to this upanayan ceremony and this hearsay evidence is not admissible under s. 32, cl. (5) of the Evidence Act, and, therefore, the case in Boulnois, even if it were the authority contended for, does not help the appellant.

The next case in Bengal is Eshan Kishor Acharjee Chowdhry v. Haris Chandra Chowdhry, where it was held that where the adoption was set aside, the adopted son would not only lose his status in the family of his adoptive father but also lose his right of inheritance to his natural parents. On the other hand, the Madras High Court has come to the conclusion that in reason and in good sense it would hardly seem a matter of doubt that where no valid adoption, in other words, no adoption has taken place, no claim of right in respect of the legal relationship of adoption can properly be enforced at law. See Bawáni Sankara Pandit v. Ambabáy Ammál. In the same case, the Court expressed their opinion that the rights of the adopted son in the natural family remain unaffected. Mr. Mayne rightly points out that the view taken by the Madras High Court that an adaption must either be effectual for all purposes or a nullity has the merit of being practical and intelligible while doing substantial justice to all parties. (See p. 246, Mayne's Hindu Law, 9th Ed.) The question was mooted, before the Judicial Committee in Surendro Keshub Roy v. Doorgasoondery Dossee but was not decided. The view taken by the Madras Court was approved by Westropp, C.J in Laksmáppá v. Rámává. In 1913, the question came up for consideration before their Lordships of the Judicial Committee in the case of Ramkishore Kedarnath v. Jainarayan Ramrachhpal and Sir Samuel Griffiths observed:—

The basis of the suit is that the adoption of Jainarayan was wholly invalid, in which case he was in the view of the law an absolute stranger.

And on the partition of the adoptive father's estate he was held not entitled to a share as he was an absolute stranger.

In Vaithalingam v. Murugaian, it was held that an invalid adoption does not per se destroy the adoptive's rights in the natural family. The Bombay High Court has taken the same view in Dalpalsingji v. Raisingji, and lastly there is a recent decision of this Court in the case of Sajanisundari Dasi v. Jogendrachandra Sen where a Division Bench of this Court to which one of us was a party held that, in the case of an invalid adoption, the adopted son acquires no rights in the family of adoption and loses none in the family of his birth. These authorities establish the proposition that Nani Mohan although he was not validly adopted did not lose his rights in his natural family, and as such he would be the next reversioner to Ram Gopal's estate on the death of Jay Kali, being Ram Gopal's daughter's son and would exclude the plaintiffs who claim to be remote reversioners.

It remains to notice a minor point raised by Mr. Chowdhury on behalf of his client Durga Prasad Khaitan, who was impleaded in the suit in his capacity as a receiver in possession of some of the properties in suit. It was argued that the suit should be dismissed against him as no notice was given to him under s. 80 of the Civil Procedure Code. It has no doubt been held that a receiver is a public officer within the meaning of s. 2, cl. (17) of the Civil Procedure Code, but is not entitled to any notice in view of the decision of the Privy Council in the case of Rebatimohan Das v. Jateendramohan Ghosh where Sir George Lowndes said:—

In the case of a suit against a public officer it is only where the plaintiff complains of some act purporting to have been done in his official capacity that notice is enjoined.

In the present case, the plaintiffs made no such complaint. No act was done by the receiver beyond his taking possession. This contention fails.

For the abovementioned reasons we are of opinion that Ameer Ali, J. is right in his conclusion in all the three issues and this appeal must be dismissed with costs to the appearing respondents.

Appeal dismissed.

Attorney for appellants: R.L Basack.

Attorneys for respondents: Morgan & Co.; Fox & Mandal; Orr Dignam & Co.; B. Srimany; B.N Bose; P.N Bose; S.K Bom; I.D Jalan.

S.M