Beni Prasad v. Hardai Bibi

[68] Sir John Edge, C.J:— Three questions have been referred for the opinion of the Full Bench. I propose to consider the first question, and that only. It is, “The adoption of an only son having taken place in “fact, is such an adoption null and void under the Hindu Law?”

The adoption in question was one in the dattaka form, and the parties were Agarwala Banias of Benares.

The question is one as to which there has been and is much difference of opinion in the Courts in India. It is not suggested, and, indeed, I am satisfied that it could not be suggested, that there is, apart from the written sacred law of the Hindus, any custom which would make such an adoption void. Nor is it suggested that the texts of the Hindu Law, or the passages in the books of the Hindu commentators, which have been regarded by some as imperatively prohibiting the adoption of an only son, were founded on a custom. No custom in Banares to make such an adoption has been alleged. Consequently, the answer to the question in this case does not depend on any custom, and must be sought for in the written law of the Hindus. The question is one surrounded by much difficulty. The difficulty mainly consists in ascertaining what is the true and reasonable construction to be put on certain texts of the sacred law of the Hindus, and upon certain passages in the works of Hindu commentators, and further in ascertaining how far such passages can safely be taken as expressing what the Hindu Law, as accepted by the School of Benares, is on this subject. The difficulty is enhanced by the fact that the texts and passages are in Sanskrit, and that some Sanskrit scholars are of opinion that the earlier translations into English of some of those texts and passages are incorrect and are in fact misleading.

In dealing with the question as to whether those texts and passages in Sanskrit have been incorrectly translated, I must say at once that I am entirely ignorant of Sanskrit; but having to express an opinion on the subject I must do so, having formed it as best I could upon the apparent reasonableness or unreasonableness of the criticisms of those competent to make them.

[69] Briefly stated, the contentions on the question as to whether the adoption in this case is null and void are as follows:—On the one side it is said that the giving and receiving in adoption in the dattaka form of an only son are absolutely, and imperatively prohibited by the Hindu Law, and consequently that such an adoption would be void ab initio and the principle quod fieri non debuit factum valet could not be applied to such an adoption. We all are agreed that if the adoption of an only son in the dattaka form is according to Hindu Law void ab initio, the principle expressed by that maxim cannot be applied.

On the other side it is said that the adoption of an only son is not absolutely or imperatively prohibited by the Hindu Law, and that the reliable texts of that law express only a religious recommendation, and not an imperative prohibition, against the adoption of an only son, and consequently, although the making of such an adoption would be sinful, it would not be void, and the principle quod fieri non debuit factum valet would apply, and the adoption once made would be valid. We all are agreed that, if such an adoption is merely sinful and not void ab initio, that maxim applies.

It is beyond doubt that the Code of Manu, in which, adoption, is treated of and recommended in the case of a sonless Hindu, does not contain any prohibition or recommendation against the adoption of an only son. So far as I have been able to ascertain, it is nowhere said in express language in any of the books of the sacred law of the Hindus or in any of the Hindu commentaries that the adoption of an only son is void.

The earliest text upon which this contention, which we have to consider, has arisen is one of Vasistha. It is mainly on that text, or, more correctly speaking, as I hope to show, on a part only of it, and partly on a text of Saunaka, that those Hindu commentators who have regarded the adoption of an only son as imperatively prohibited, have relied.

As translated in Colebrook's Digest, Vol. 2, page 387, Vasistha's text is, so far as is material, as follows. ‘A son formed of seminal fluids, and of blood proceeds from his father and mother [70] ‘as an effect from its cause; both parents have power, for just reasons, to give, to sell, or to desert him; but let no man give or accept an only son, since he must remain to raise up a progeny for the obsequies of ancestors. Nor let a woman give or accept a son, unless with the assent of her lord,’ &c. That text of Vasistha is thus translated by Mr. Mandlik at page 499 of his Vyavahara Mayukha of 1880 (which I shall hereafter refer to as Mandlik's Hindu Law) thus, “man produced from virile seed and uterine blood ‘proceeds from his father and his mother as an effect [from its cause]. Therefore his father and mother have power to give, to sell, or to abandon their son. But no one should give or receive an only son, for he saves the man [from put or hell].’ Except in so far as Mr. Colebrpoke has interpolated the words “for just reason” in his translation, the two translations, although differing slightly in the words used, appear, to me to convey the same meaning.

The question is how is the text of Vasistha to be construed. It must clearly be construed according to the rule for the construction of the texts of the sacred books of the Hindu Law if authoritative rules on the subject exist. That rules for the construction of the sacred texts and law of the Hindus do exist cannot be disputed, although those rules have been frequently overlooked or not referred to by Judges or English text-writers, probably because they are in Sanskrit and have, so far as I am aware, not yet been translated. That they are rules of the highest authority is obvious from the manner in which they have been referred to by Mr. Colebrooke. Mr. Mandlik also vouches for them and so does Golapchandra Sarkar in his Hindu Law of Adoption. (Tagore Law Lectures of 1888). Those rules of construction are to be found in the Mimansa of Jaimini. Jaimini, as we have been informed by counsel in the course of the argument, lived in the thirteenth century of the Christian era. He was consequently subsequent in date to the Mitakshara and anterior in date to the Dattaka Mimansa and the Dattaka Chandrika, a fact which, in my opinion, has some bearing on the question which we have to consider, particularly [71] if we find that those rules are consistent with the construction put by the author of the Mitakshara upon the text of Vasistha, and that in commenting upon that text the authors of the Dattaka Mimansa and the Dattaka Chandrika ignored the rule of the Mimansa of Jaimini which is applicable to it. Let us see what was Mr. Colebrooke's opinion of the Mimansa of Jaimini. It is to be found in the Transactions of the Royal Asiatic Society, Volume I, page 457. As I have not a copy of the Transactions before me, I shall quote the passage from them which is set out at page 74 of Golapohandra Sarkar's Hindu Law of Adoption. As to the Mimansa philosophy of Jaimini, Mr. Colebrooke said—

‘The disquisitions of the Mimansa bear, therefore, a certain resemblance to juridical questions, and, in fact, the Hindu law being blended with the religion of the people, the same modes of reasoning are applicable, and are applied to the one as to the other. The logic of the Mimansa is the logic of the law; the rule of interpretation of civil and religious ordinances. Each case is examined and determined upon general principles; and from the cases decided the principles may be collected. A well ordered arrangement of them would constitute the philosophy of law; and this is, in truth, what has been attempted in the Mimansa …. Instances of the application of reasoning, as taught in the Mimansa, to the discussion and determination of juridical questions, may be seen in two treatises on the Law of inheritance, translated by myself, and as many on Adoption, by a member of this Society, Mr. Sutherland. (See Mitakshara, on Inheritance, 1, 1, 10 and 1, 9, 11, and 2, 1, 34; Jimuta Vahana, 11, 5, 16-19. Datt Mim.—on adoption 1, 35-41 and 4, 65-66 and 6, 27-31. Datt Chand, 1, 24 and 2, 4.)’ Golapohandra Sarkar in his Hindu Law of Adoption, page 74, gives much useful information as to the Mimansa of Jaimani and also as to the Vedanta. He there says, ‘Mimansa, however, is the name of a School of Hindu philosophy founded by Jaimini, the object of which is to establish the cogency of precepts contained in the Scripture, and to furnish maxims of interpretation, by means of the rules of reasoning.’ [72] And further on at page 74 he says. The Vedanta School of philosophy the founder of which is Vyasa, is also denominated Mimansa, and in order to distinguish it from Jaimini's philosophy, the Vedanta is called the Uttara or posterior Mimansa; and the other, the Purva or prior Mimansa. This division is similar to that between the Vedas and the Upanishads and based upon the same principle: the Mimansa of Jaimini deals with the practical or ceremonial precepts; whereas that of Vyasa relates to the theroetical or theological precepts contained in the Upanishads. But as the school founded by Vyasa has a distinct name of its own, the word Mimansa when used without qualification means Jaimini's philosophy. The later Mimansa is supplementary to the prior; and they are parts of one whole. The two together comprise the complete system of interpretation of the precepts and doctrines of the Scriptures, both practical and theological. The rules furnished by them are followed by the commentators as authoritative while discussing doubtful questions of law.’ I have referred thus at length, by giving the above quotations, to the Mimansa of Jaimini or the Purva Mimansa, as it is desirable to keep in mind that the rules of the Purva Mimansa, although they may sometimes have been overlooked or not attended to by Hindu as well as English commentators and text-writers and by English translators, are no new rules of construction but are authoritative rules for the construction of texts of the sacred law of the Hindus.

We have been referred in the course of the argument in this case to the Mimansa of Jaimini, which, as I have said, is in Sanskrit. So far as I could judge from the translation made during the argument, Mr. Mandlik has correctly given the effect of the rule at page 499 of his Hindu Law in the passage which I shall now quote.

After giving his translation of the text of Vasistha, which I have already quoted, Mr. Mandlik says—‘This text on the most approved principles of criticism must also be treated as a recommendatory one, inasmuch as it contains a precept that, is intended [73] for a certain specified purpose. It is a rule of the Purva Mimansa that all texts supported by the assigning of a reason are to be deemed not as vidhi but simply as artha-vada (recommendatory). When a text is treated as an artha-vada, it follows that it has no obligatory force whatever. Sahara Svamin constructs an adhikarana (a topic) on this head, which he calls hetumannigadadhikarana (a topic in regard to texts which contain a clause containing the reason of the precept) out of five sutras of Jaimini, &c.’

Page 500 and the following pages of Mr. Mandlik's book contain much valuable matter bearing on the subject, and the question as to the legality of the adoption of an only son.

Applying the rule of construction of the Mimansa of Jaimini to the text of Vasistha, I am of opinion that text, so far as it applies to the adoption of an only son, is to be construed as a religious recommendation and not as a positive and imperative prohibition, as we find the reason given in the text for the precept.

If the continuation of the text of Vasistha which I have been considering is correctly translated by Mr. Golebrooke as ‘nor let a woman give or accept a son, unless with the assent of her lord’ or if the more correct translation is a woman shall not give or accept a son except with the absent of her husband,’ it is to be noticed that according to the rule of construction to which I have referred the text as to a woman not giving or taking a son in adoption gives no reason for that precept, and hence that precept might be construed as a positive and imperative prohibition against a widow adopting a son to her deceased husband without authority from him as it has been construed by this Court in Tulshi Ram v. Behari Lal(1). In that case I declined to express any opinion on the question as to the legality of the adoption of an only son.

Besides the consideration to which I have already referred, there are other considerations, apart from those which may be gathered from judicial decisions to which I shall now refer, which [74] also lead me to the conclusion that the text of Vasistha must be regarded as containing a religious recommendation only, and not an imperative prohibition.

According to Mr. Mandlik ‘Manu is the oldest lawgiver of the Indian Aryas. His mention by the Sruti is evidence of his antiquity. From the Vedas down to the Puranas, Manu and his Dharmasastra are always appealed to as the chief guides.’ (Hindu Law by V.N Mandlik, Introduction, p. XLVI. According to Mr. Mayne, ‘The Code of Manu has always been treated by Hindu sages and commentators, from the earliest times, as being of paramount authority; an opinion, however, which does not prevent them from treating it as obsolete whenever occasion requires’ (Mayne's Hindu Law and Usage, 3rd edition, paragraph 20).

The Code of Manu which has come down to us is one of great antiquity. I am not aware that any authority has placed it later than the year 200 B.C Manu, if he was not a mythological being, but a man who actually existed, may have lived at any time prior to the year 200 B.C and as far back as, if not further back than, the time of Moses of the Hebrews.

It is impossible to be certain now to what extent the Code of Manu, as we have it, is an abridgment of the original, or whether those texts which it now contains are exactly as they were when it was first promulgated; but of its antiquity and of its pre-eminent authority amongst the Hindus there can be no doubt. It appears to me that sitting here as a Judge to decide a question of Hindu Law, it is not for me to consider whether Manu was a mythological or a real being, and that I must, as far as possible, approach the subject with which we have to deal in the frame of mind of an orthodox Hindu.

According to Manu himself, he was a son of Brahma, and received from Brahma the Code which he communicated to the ten sages, by one of whom, Bhrigu, it was recited and handed down to posterity. Mr. Mandlik is of opinion that a considerable time must have elapsed between Manu and his compiler, Bhrigu. According [75] to the Hindus, Manu was the first and principal of the Rishis or sages and lawgivers who composed the Smritis, which are believed to contain the precepts of the Divinity as handed down by memory and tradition and recorded from the recollection of the sages. The Smritis are not supposed to contain the ipsissima verba of the Divinity as directly imparted by the Divinity to the Rishis, but those words as they were remembered and handed down by tradition.

Whether the Code of Manu was the result of divine inspiration to him, or was the record of tradition, or was partly one and partly the other, intermixed or not with precepts originated by himself, or whether it is or is not now as it originally was, it is most remarkable that although it deals with the subject of adoption, it contains no prohibition against the adoption of an only son, and that so far as has been suggested in argument before us or I have been able to ascertain, such prohibition, if on the true construction of the text of Vasistha such text is a prohibition, appears first in that text of Vasistha. If the Code of Manu, as we now have it, is in an abridged form, it is to the highest degree improbable that those who abridged the original Code would have left out a portion of the original text containing a prohibition so important to the souls of Hindus from the point of view of those who contend that the adoption of an only son is void, if such a prohibition in fact was to be found there. By those who contend that such an adoption is void, it is not suggested that the imperative prohibition, if there is one, is the result of any custom which grew up after the time of Manu, but it is insisted that it is and has always been a vital and fundamental principle of the Hindu sacred law, any infraction of which carries with it the terrible consequences of depriving not only the giver and the acceptor of the only son in adoption, but the souls of their respective ancestors of all means of attaining to the ultimate heaven of the Hindus. So far as I can ascertain, there is nothing in Vasistha, the Mitakshara or elsewhere to indicate that the Code of Manu ever contained any such prohibition. It is difficult to understand that Manu when recommending and authorising adoption should have omitted any [76] reference to a prohibition to the adoption of an only son if according to the Divine law, as revealed or known to him, such an adoption was illegal and fraught with such momentous consequence to the souls of Hindus as it is contended it has. Vasistha does not appear to have been a Contemporary of Manu, who is frequently quoted by Vasistha. Mr. Mandlik is of opinion, and apparently on good grounds, that the Smriti of Vasistha is very ancient and was composed before the compilation by Bhrigu of the present Code of Manu. (Mandlik's Hindu Law, pages 328 and 329.) If that view be correct it is still, more difficult to understand why, on the assumption that the text of Vasistha contains a positive and imperative prohibition against the adoption of an only son, the compilation by Bhrigu of the Code of Manu should contain he reference to what would be and must then have been known to be a fundamental prohibition of the Hindu divine law. The Smriti of Vasistha was known to Bhrigu (see Mandlik's Hindu Law, page 329). The only conclusion to which I can come is that the original texts of Manu did not contain any prohibition against the adoption of an only son, and that no such prohibition had been revealed to or was known to him.

Vasistha undoubtedly was one of the Rishis, and his texts are of Very great authority as presenting divine precepts recorded from memory or tradition, but in the words of Vasistha, and not in the actual, words of the Divinity.

Having regard to the fact that Manu nowhere records any prohibition against the adoption of an only son, and that if such a prohibition existed it must, from the consequences which, would follow from the infraction of it, have been a vital and fundamental prohibition of the divine law of the Hindus, I am further led to conclude that the text of Vasistha must be construed as a religious recommendation and not as a positive and imperative prohibition.

I am well aware that the later Smritis contain texts which do not appear in earlier Smritis, and that the Hindu sacred law has developed in; the course of ages, partly no doubt the result of customs which sprang up and partly due to the introduction of texts by the [77] Rishis and to glosses, and interpolations of Hindu commentators which have been accepted by the Hindus as authoritative and correct. Such glosses and interpolations must not be lost sight of when one, is attempting to construe ancient; texts, and I shall consider them later on. One of the lower Rishis was Saunaka. He is not referred to by the author of the Mitakshara on the question of adoption. The author of the Mitakahara bases his commentary, so far as this question of adoption is concerned, on the text of Vasistha. I think that fact is of importance as there is no more authoritative, commentary than the Mitakshara recognised by the School of Benares.

Mr. Sutherland translates the text of Saunaka thus:—“By no man having an only son (eka-putra), is the gift of a son to be ever made. By a man having several sons (bahu-putra), such gift is to be made, on account of difficulty (prayatnata).” That, translation is to be found in Mr. Sutherland's translation of Section IV, paragraph I of the Dattaka Mimansa at page 571 of Stokes's Hindu Law Books.

Mr. Mandlik's translation of and his comments on the texts of Saunaka are to be found at pages 497, 498 and 499 of his Hindu Law. His translation is as follows:—“One having an only son should never give him in adoption; one having several sons should give a son (in adoption) with every effort.”

Mr. Mandlik points out that the Sanskrit word which he has translated in both instances in that text as “should” is capable of meaning “should be done,” “must be done” or is “proper to be done,” and he points out that if that Sanskrit word means “must” in that portion of the same text which relates to the adoption of an only son, it ought to read as “must” in that portion of the same text which relates to a man having several sons. It has never been suggested, so far as I am aware, that the Hindu Law imposes any imperative duty on a father to give one of his sons in adoption. Mr. Mandlik at pages 498 and 499 adduces, a further and apparently a strong argument to show that Saunaka himself regarded the precept as to the adoption of an only son as purely directory.

[78] Golapohandra Sarkar in his Hindu Law of Adoption at page 285 has made some valuable comments on the meaning which, according to the author of the Dayabagba, attaches to the Sanskrit word which Mr. Mandlik has translated as “should” in the text of Saunaka.

I next come to the commentary known as the Mitakshara which, according to Mr. Mayne, following West and Bühler (Mayne's Hindu Law and Usage, 3rd edition, paragraph 26) was written about the latter part of the eleventh century, and consequently many centuries before the appearance of the Dattaka Mimansa of Nanda Pandita.

Mr. Colebrooke's translation of the passages in the Mitakshara bearing on this question, is as follows:—‘10. By specifying distress, it is intimated that the son should not be given unless there be distress. This prohibition regards the giver (not the taker). 11. So an only son must not be given (nor accepted). For Vasistha ordains, “Let no man give or accept an only son.” ‘12. Nor though a numerous progeny exist, should an eldest son be given’, &c. The words in parenthesis were incorporated by Mr. Colebrooke from Balam-bhatta's commentary. Now the author of the commentary known as Balam-bhatta's, who has frequently been assumed to have been a man and a Pandit, was in fact a lady of Benares of modern times, whose commentary, although it has frequently been mentioned in the course of arguments in cases before me in this Court, has never been relied upon in those cases by any counsel or vakil as of any authority in these provinces, in which the Benares School of Hindu Law prevails. The Sanskrit words “no deyah,” which Mr. Colebrooke in passage 11 has translated as “must not,” have been translated by him in passages 10 and 12, that is, in the prior and subsequent passages of the group, as “should not” in one case and as “nor should” in the other. Unless Mr. Colebrooke, as is suggested by Golapchandra Sarkar at page 288 of his Hindu Law, was influenced by the gloss in Balam-bhatta's commentary, it is difficult to understand why in his translation he introduced an [79] important interpretation and translated. “na deyah” as “must not,” in passage 11, particularly when, as has been admitted by the learned counsel for the appellant, who is familial with Sanskrit, the word in Sanskrit which Mr. Colebrooke translates in passage 11 as “so” means “similarly.” Passage 12 commences with the same Sanskrit word, but Mr. Colebrooke in his translation of passage 12 has certainly failed to give effect to it. Golapchandra Sarkar at page 286 of his Hindu Law of adoption gives the translation of those three passages thus:—“By specifying distress it is intimated that the son should not be given unless there be distress. This prohibition regards the giver. Similarly, an only son should not be given.” For Vasistha ordains, let no man give or accept an only son.” Similarly, though more than one son exist, the first-born son should not be given, for he chiefly fulfills the office of a son, as is shown by the following text of Manu. By the first-born son, as soon as born, a man becomes the father of male issue.”

It will be noticed that although the author of the Mitakshara cites only a portion of the particular text of Vasistha, omitting that portion of the text which gave the reason for the precept, his use of the word which as translated means “similarly” and his use in all three passages of the words “na deyah” show, when one examines the second of the three passages in conjunction with the first of them, that he construed the text of Vasistha as the rules of the Mimansa of Jaimini require it to be construed, and read the text of Vasistha as giving, a religious recommendation only and not as imposing an imperative prohibition against the adoption of an only son.

The only justification which I can conceive for translating “na deyah” as “must not” in that passage in the Mitakshara would have been the finding that the actual text of the Mitakshara imperatively forbade the accepting as well as the giving of an only son in adoption; but it does not, nor, as I understand it, does it even imperatively forbid the giving of an only son in adoption.

The Hindu Law must, so far as it depends on its written law, with which alone we have to do in this reference, be ascertained [80] from a consideration of the text of that law and of the authoritative commentaries, and not by attempting to construe the mistaken and misleading translations or unauthorised interpolations of English translators, otherwise the sacred law of the Hindus would be the law of the English translator and not the law as contained in the sacred books or authoritative Hindu commentaries. Neither a Judge nor a translator has any authority to make Hindu sacred law. The very idea is ridiculous. The duty of the one is to translate correctly, with power to make such separate comments on the text as he thinks fit, the duty of the other is to interpret the texts or correct translations of them to the best of his ability. Shortly after I took my seat in this Court, the late Pandit Ajudhia Nath, who was one of the ablest and most accomplished lawyers who has practised in this Court in my time, and who had made the study of the Hindu Law a speciality, told me, in conversation and without reference to any particular case, that in his earlier days in the profession, he had from trusting to judicial decisions, English translations and English text writers, formed very incorrect views on many points of Hindu Law, which were only removed when he later applied himself to a consideration of the original texts.

The opinions and arguments of Golapchandra Sarkar, at pages 286, 287, 288 and 289 of his Hindu Law of Adoption, as to what is the correct translation of the three passages in the Mitakshara, to which I have referred, are instructive and should be read carefully.

I entirely agree with Golapchandra Sarkar (page 289) that in considering Hindu Law—“It should be borne in mind that a transaction” may be perfectly valid in law, however blameable, reprehensible or “sinful it may be represented.” It is perfectly true, as pointed out in the note (b) at page 915 of West and Buhler's Hindu Law, 3rd edition, that ‘It is not opposed to Hindu notions that a man should benefit spiritually by moving another to an act which in him is sinful.’ The importance of that fact in determining the question as to whether, according to the text of Vasistha or the Mitakshara, the adoption of an only son is void, is shown by the attempts which have [81] been made to read those texts as if they not only prohibited the giving but also the accepting of an only son in adoption.

The importance of ascertaining and attending to the correct translation of the passage in the Mitakshara cannot be exaggerated, and I hope to show later on, when I come to deal with judicial decisions on this important question, that Markby, J., in Calcutta, Westropp, C.J, in Bombay, and Turner, J., in these Provinces, were very materially influenced by what I believe to be the incorrect and misleading translation by Mr. Colebrooke of the passage in the Mitakshara to which I have referred.

In my opinion the Mitakshara correctly translated leaves the text of Vasistha as it stood and having regard to that text and to the preceding and succeeding passages in the Mitakshara, the inference is that the author of the Mitakshara did not understand that the adoption of an only son was imperatively prohibited by the text in Vasistha or by the Hindu sacred law as he knew it, but understood the contrary.

I now pass on to the Dattaka Mimansa of Nanda Pandita. Referring to that commentary and to the Dattaka Chandrika, Mr. Mayne says—“The two special works on adoption, viz., the Dattaka Chandrika and the Dattaka Mimansa, possess at present an authority over other works on the same subject which is, perhaps, attributable to the fact that they became early accessible to English lawyers and Judges from being translated by Mr. Sutherland.” I have quoted from paragraph 30 of Mayne's Hindu Law and Usage, 3rd edition. The whole paragraph is worthy of attention when one is considering the authority of either of the commentaries to which Mr. Mayne is referring.

Their Lordships of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sethupaty appear to have referred in guarded language at page 437 of the report to the authority of the Dattaka Mimansa and the Dattaka Chandrika, and again at page 438 to the authority of the Dattaka Mimansa.

[82] The comments of Golapchandra Sarkar on the Dattaka Mimansa and the Dattaka Chandrika (Hindu Law of Adoption, pages 120 to 125 inclusive) deserve careful perusal; for not only do they afford ground to doubt that any special authority should be attached to the Dattaka Mimansa, but they afford ground for doubting that the Dattaka Chandrika may not have been a forgery. See the representation as to authorship made by the author of the Dattaka Chandrika in verse 2 of section 1 of that treatise.

The Dattaka Mimansa came into existence within the last three hundred years, and is no doubt on some questions considered as a high authority in the School of Benares, but not on any question of the weight which is attached to the Mitakshara. In my opinion it puts upon the text of Vasistha a construction at variance with that which is put upon it by the author of the Mitaksahra and which is not justified by the rule of the Mimansa of Jaimini. The importance of the Dattaka Mimansa to my mind on the question with which we are concerned consists in this, that it and the Dattaka Chandrika most materially influenced, and I might even say biassed, the judgment of Mitter and Jackson, JJ., in Upendra Lal Roy v. Srimati Rani Prasanna Mayi. The Dattaka Mimansa, the Dattaka Chandrika and Mr. Colebrooke's translation of the text of the Mitakhsara to which I have referred together with the judgment of Mitter, J., in 1 Beng. L.R 221 appear to have had the same effect upon the judgment of Markby, J., and Garth, C.J, in Manick Chunder Duit v. Bhuggobutty Dossee(3) and not to have been without considerable influence on Westropp, C.J, in Lakshmappa v. Ramava(4).

In the judgment of Mitter, J., at pages 223 and 224 of 1 Beng. L.R, is given what purports, as I infer from the footnotes of reference, to be a translation of verses 1, 3 and 4 of section 4 of the Dattaka Mimansa. Where Mitter, J., got that translation from I have been unable to ascertain, unless it was his own condensation of the translation of Mr. Sutherland. I give in full the passage as it appears in his judgment. It is as follows:— By no man having an only [83] son (eka-putra) is the gift of a son to be ever made (verse 1). “He who has an only son, or one having an only son, the gift of that son must never be made.” For as Vasistha declares, “an only son let no man give.” Therefore a prohibition against acceptance is established by the text in question. Accordingly Vasistha says let no man give or accept,” &c. (verse 3).

“To this he subjoins a reason. ‘For he is destined to continue the line of his ancestors.’ His being intended for lineage being thus ordained: in the gift of an only son, the offence of extinction of lineage is implied. Now, this is incurred by the giver and the receiver also (verse 4).”

Mr. Sutherland's translation (Stokes's Hindu Law Books, pages 571 and 572) of verses 1, 2, 3 and 4, of section 4 of the Dattaka Mimansa is as follows:—

“1. Next, in reply to the question, as to the qualification of the person to be affiliated, Saunaka declares: ‘By no man having an only son (eka-putra), is the gift of a son to be ever made. By a “man having several sons (bahu-putra), such gift is to be made, on “account of difficulty (prayatnatas).’”

“2. He, who has one son only, is ‘eka-putra,’ or one having “an only son: by such a one, the gift of that one son must not be made; for a text of Vasistha declares, ‘an only son, let no man give,’ &c.”

“3. Since the word ‘gift’ means the establishing another's property after the previous extinction of one's own: and Another's property cannot be established without his acceptance: the author (Saunaka) implies this also, in his text in question. Therefore a prohibition likewise against acceptance is established by that very text. Accordingly Vasistha says: ‘an only son let no man give or accept, &c, &c.”

“4. To this he subjoins a reason, ‘for he is [destined] to continue the line of his ancestors.’” “His being intended for line age, being thus ordained: in the gift of an only son, the offence of extinction of lineage is implied. Now, this incurred by both [84] the giver and adopter also. For the [reason in question], is sub-joined, after both (verbs: viz., ‘give’ and ‘accept’).”

It will be noticed that the author of the Dattaka Mimansa not only goes far beyond the author of the Mitakshara and treats the text of Vasistha as imposing an imperative prohibition against the adoption of an only son, but in construing that text of Vasistha ignores the rule of the Mimansa of Jaimini as to construction, to which I have referred, and that notwithstanding that in other cases according to Mr. Colebrooke he had followed rules of construction of the Mimansa of Jaimini. The author of the Dattaka Mimansa also, it is to be noticed, relies on this question of adoption on Saunaka, whom on that question the author of the Mitakshara ignores.

Mr. Sutherland's Preface to his translation of the Dattaka Mimansa and the Dattaka Chandrika should be carefully read by those who are disposed to attach great importance to those commentaries.

That Preface shows further that Mr. Sutherland thought that in translating the Dattaka Chandrika he was translating a work by Devanda Bhatta, who was the author of the Smriti Chandrika. On this latter point also it is advisable to consult paragraph 30 of Mayne's Hindu Law and Usage, 3rd edition.

It is not to be assumed that the whole of a commentary is to be relied upon, because it is found that in some parts it is consistent with the practices of the Hindus or the texts of the sacred books and to that extent has been considered as authoritative. The work of the wildest and most inaccurate reasoner on sacred texts would probably be found to be on many points in accord with the popular views, with some texts which he quoted, and with some of the opinions of other commentators.

The translation relied upon in the same judgment of Mitter, J., of the passage in the Dattaka Chandrika is, “By no man having an only son is the gift of a son to be ever made” (sec. 1, verse 29).

Mr. Sutherland's translation of that verse (Stokes' Books of Hindu Law, page 636) is as follows:—“In answer to the question—[85] ‘by whom is a son to be given?’ Saunaka declares—‘By no man, ‘having an only son is the gift of a son to be ever made. By a man having several sons, such gift is to be anxiously made.”

This shows that the author of the Dattaka Chandrika was making his comment not upon Vasistha, but upon the text of Saunaka, to which I have already referred. It is to be observed that neither the text of Vasistha nor that of Saunaka says that the gift of an only son is an offence which will cause an extinction of lineage in either the giver or the receiver, and that gloss was first put upon Vasistha's text by the author of the Dattaka Mimansa.

According to Jagannatha and Others the adoption of an only son is not imperatively prohibited, and the texts relating to the adoption of an only son are to be read as containing a religious recommendation only.

As to the process of reasoning by which, apart from the gloss of the Dattaka Mimansa, it has heen contended that on the adoption of an only son the lineage of the giver and the acceptor must become extinct, I shall next deal. Before proceeding to consider the more important judicial decisions on this question of the legality of the adoption of an only son, I wish to point out that, as it appears to me, much of the argument according to which such an adoption must he considered as imperatively prohibited is of that kind of argument known as the argument in a circle. It is said, “such an adoption is illegal because it deprives the giver and the receiver of lineage, or in other words of descendants to offer the funeral cake,” &c. When the question is asked, “Why should not the giver of an only son be on the making of the gift in the position of a sonless Hindu and therefore competent to adopt a son to himself,” the answer is, “Because the giving in adoption of an only son is illegal according to Hindu Law and one who commits such an infraction of the Hindu Law must be incompetent to adopt a son.” When the question is put, “Even if the giver of an only son becomes thereby precluded from all chance of lineage by adoption or by subsequent procreation, why does not the only son given in [86] adoption become a son to the acceptor,” the answer is, “Because such an adoption is illegal according to Hindu Law and therefore void.” When I put the question, “Then, if the adoption is void why does not the only son continue to be for all purposes the son of his natural father?” the only answer I received was, “the natural father ‘had committed an act so sinful and illegal that he thereby lost his son.” Whether or not it is considered that such a penalty is a just one upon the natural father, it appears to me that if such a view of the Hindu law be correct, a very unjust measure would be meted out to the unfortunate only son, who, by reason of his age at the time generally prescribed for an adoption, must be considered as an innocent and unoffending party, who had no voice in the transaction, and still harder would be the fate of the souls of those of the ancestors who died prior to such an adoption and who consequently could have had no voice in the matter of the adoption. The adopted son would according to such an argument have lost one father without gaining another. If I were one of the Judges who will have to decide this appeal after this reference to the Full Bench is answered, I would, before deciding against the legality of the adoption of the respondent, Ram Prasad, enquire whether he, Musammat Hardai Bibi, and his natural father, had been outcasted on account of the adoption of Ram Prasad. I believe it is over twenty years since the adoption took place. If those persons were not outcasted I should require to have explained to me how it happened, if the adoption was such a sinful and illegal act in the eyes of the Hindu law, they were not outcasted, particularly as they belong to a caste, the members of which are such sticklers for caste and for keeping their caste pure as are the Agarwala Banias of Benares, where the principles of the Benares School of Hindu Law are supposed to be understood and followed.

I now proceed to consider the latter leading judicial decisions in India on this question. I do not propose to offer any separate criticisms on the earlier judicial decisions which are referred to in the later cases, because, owing to the incomplete condition of this Court's Library, there are few of those earlier decisions to which I have [87] access, and it might lead to a wrong impression as to my views and method of dealing with the subject if I were to criticise some only of the earlier decisions and pass others of them by in silence.

The first decision to which I shall refer is that in Upendra Lal Roy v. Srimati Rani Prasanna Mayi. That decision, as I have already pointed out, is almost, if not entirely, based on the passages from the Dattaka Mimansa and the Dattaka Chandrika, referred to in the judgment in that case. It was asserted in the judgment of Mitter, J., in that case “that the adoption of an only son is prohibited by the Hindu Shastras, is beyond ‘all controversy.’” In support of that assertion none of the Hindu Shastras are cited, but what are apparently incomplete translations of passages from the Dattaka Mimansa and the Dattaka Chandrika are given. Manu, as given in the Dattaka Chandrika, is referred to in that judgment in support of what I agree with Markby, J., in considering to be a wholly incorrect proposition as to Hindu Law. I shall refer to this later. Whether or not Mitter and Jackson, JJ., who were without doubt Judges with well-deserved reputations as lawyers, consider that the Dattaka Mimansa and the Dattaka Chandrika were Hindu Shastras may be a doubtful point on a perusal of their judgment. Whatever they took them to be, they accepted their texts, or, more correctly speaking, the translations which they gave of them, as correct expositions of the Hindu Law on the subject of adoption. There is no trace in their judgment of their attention having been drawn to the authoritative rules of construction to be found in the Mimansa of Jaimini, or to the fact that the text, the meaning of which is disputed, first appeared in Vasistha. They saw no distinction in construction between the text which prohibited a woman adopting a son to her husband without his authority and that portion of the text which deals with the adoption of an only son. They said, referring to the passage cited by them from the Dattaka Chandrika as to a woman not adopting to her husband without his assent, “Can it be said that such an adoption would be valid in law? It will “be observed that the language employed in the preceding text [88] is “precisely similar to that employed in the text prohibiting the adoption of an only son.” Those learned Judges, if they had paid regard to the rule of the Mimansa of Jaimini and applied it to the full text of Vasistha to which I have referred, could not have made that assertion. If they had their attention drawn to the three passages in the Mitakshara which are commented on by Golapchandra Sarkar at pages 286 and 287 of his Hindu Law of Adoption, they would probably have come to the conclusion that in the view of the author of the Mitakshara the text of Vasistha relating to the adoption of an only son was one containing a moral or religious recommendation, and not a positive and imperative prohibition which would make such an adoption illegal and void. Those learned Judges nowhere refer to the Mitakshara, possibly because they may not have been aware of the passages in the Mitakshara to which I have referred; but more probably because the Dayabbaga took the place of the Mitakshara in lower Bengal: but neither do they refer to the Dayabbaga in support of any of the views set forth in their judgment. Possibly the Dayabbaga contained nothing which would support them. Further on in their judgment, referring to the adoption of an only son, they say— “It is to be borne in mind that the prohibition in question is applicable to the giver as well as to the receiver, and both parties are threatened with the offence of ‘extinction of lineage’ incase of violation.” That was, as I think I have shown, nothing but pure and unadulterated Dattaka Mimansa. Those learned Judges also relied upon cases numbered 3 & 18 at pages 178 & 179 of Vol. 2 of Macnagh ten's Principles and Precedents of Hindu Law, 3rd edition. The passages printed by Sir William Macnaghten were apparently questions and answers put to and given by a Pandit. In support of the answer in case 3, no authority is cited. In support of the answer in case 18, Vasistha as interpreted in the Dattaka Mimansa and the Dattaka Chandrika, was relied upon. It would appear from paragraph 30 of Mayne's Hindu Law, 3rd edition, that Sir William Macnaghten, at the date of his work Mr. W.H Macnaghten, had not a very accurate idea of the authority to be allowed to the Dattaka Mimansa or the Dattaka Chandrika, or a correct opinion as to the authorship of the latter treatise.

[89] I have only one more comment to make on the judgment of Mitter and Jackson, JJ. It is that I entirely agree with Mark by, J., in his comment upon the passage in the judgment of Mitter and Jackson, JJ., in which at page 224 they are reported to have said, “An Act of adoption is to all intents and purposes a religious act, but one of such a nature that its religious and temporal aspects are wholly inseparable.” With that proposition I entirely disagree, and for reasons similar to those given by Markby, J.

I now proceed to consider the judgment of Mark by, J., in Manick Chundar Dutt v. Bhuggobutty Dossee. Many of the reports referred to in that judgment are not in this Court's Library, and I am consequently unable to test the accuracy of the criticisms passed upon the cases reported in them. I can however point out that Markby, J., in his criticism upon the case of Musammat Tikday v. Hurree Lal, at page 454 of the Report, clearly shows that his mind was influenced by the Dattaka Mimansa. He there said, “The cardinal reason, therefore, why an only son cannot be adopted, namely, that the lineage of his family is thereby extinguished, and the ceremonies can no longer be performed which are necessary for the salvation of his ancestors, does not apply.” In that criticism Markby, J., was assuming the correctness of one of the disputed contentions on which he had to decide. It might be asked why, if the giver in adoption of an only son is to be treated as a man who has no son, should his ancestors be in a worse position than they would have been in if he had died without having had a son born to him and without having adopted one, and why should not others, who are authorized according to Hindu Law to perform the ceremonies for a sonless Hindu and his ancestors, perform the ceremonies necessary for the salvation of the souls of the ancestors of a giver in adoption of an only son, or why it should be assumed that subsequently to the adoption the natural father of the adopted son could not have a son born to him, or why the natural father having given his only son in [90] adoption should not, like any other sonless Hindu, be competent to adopt a son.

According to Markby, J., at page 460 of the report, there were only four cases in which it was clear that the point as to the legality of the adoption of an only son arose and was decided, namely, two cases at Calcutta which were against the adoption of an only son, and two cases, one at Madras and the other at Bombay, which supported such an adoption. Of the two cases at Calcutta one was that to which I have already referred, in which Mitter and Jackson, JJ., held that such an adoption was invalid. According to Markby, J., at the same page, five English text writers thought such an adoption illegal and one “backed no doubt by the important but solitary opinion of Jagannatha amongst Hindu text writers” thought it valid. In connection with the passage in the judgment of Markby, J., to which I have just referred, I cannot forget the statement of Mr. Mayne in paragraph 30 of his Hindu Law, 3rd edition, that “The two special works on adoption, viz., the Dattaka Chandrika and the Dattaka Mimansa, possess at present an authority over other works on the same subject, which is, perhaps, attributable to the fact that they became early accessible to English lawyers and Judges from being translated by Mr. Sutherland,” and avoid wondering whether the circumstance of their early translation and consequent accessibility to English lawyers and English Judges, coupled with a neglect to observe the rules of construction of the Mimansa of Jaimini, which owing to that Mimansa being in Sanskrit may have been little, if at all, known to English lawyers and English Judges, may not account for the views expressed in the two judgments and in some of the English text-books upon which Markby, J., partly relied.

The Hindu text-writers upon whom Markby, J., relied were the authors of the Dattaka Mimansa and the Dattaka Chandrika, although he does also refer to the Mitakshara. In my opinion the Mitakshara does not support his view. In referring to the Mitakshara, Markby, J., did that which Mitter and Jackson, JJ., had omitted to do in their judgment upon which I have commented. [91] Referring to the Dattaka Mimansa, the Dattaka Chandrika and the Mitakshara, Markby, J., at page 459 of the “Report said. The authors of these treatises all quote the same text of the sage Vasistha, which is the foundation of the whole doctrine.” I thoroughly agree with Markby, J., that the doctrine, whichever is the true-one, must be deduced from the text of Vasistha, but not from a part only of that text, but from the whole text read together. I, however, thoroughly disagree with him in thinking that the doctrine upon which he relied is to be found in the Mitakshara, or is reasonably to be deduced from the text of Vasistha, construed as I construe it by the rule of the Mimansa of Jaimini.

Markby, J., at page 455 of the report states what I believe, from my experience of old cases, to be a very sound principle. Referring to the “opinions given by certain Pandits he said, But it does not appear that these opinions were ever submitted to any Court, nor is it said upon what texts they were based, and I believe it to be a clear principle, understood and acted upon ever since our Courts have been established, not to acept as authority the opinions of Pandits unconfirmed by judicial decision and unsupported by texts.”

I have not had the advantage of seeing the opinions of the Bengal Pandits which Markby, J., states were unanimous, and I do not know what were the texts, if any, which those Pandits gave in support of them. We have, however, been referred in the course of the argument in this case to three opinions of Pandits given in cases in the Sadr Diwani Adalat of these provinces. They are Bywastba No. 9, Bywastha No. 24 and Bywastha, No. 25 to be found at pages 6, 16 and 17 of Bywasthas, Vol. 1, Part I, published at Agra in 1361. The two latter appear to be those referred to by Westropp, C.J, in his judgment, upon which I shall presently make some comments. The first of those three Bywasthas relates to a question as to the adoption of an only son of a sister. The answer relates to the adoption of an only son and “Bishisht,” the Dattaka Chandrika and Dattaka Mimansa are cited as the authorities. The second relates to the adoption of an eldest son, aucl no authority is [92] cited. Whilst in the third the Dattaka Chandrika was the only authority given. Whether the latter Pandit was not aware of or did not approve of the Dattaka Mimansa I know not, nor have I been able to trace the cases in which those opinions were given. As Markby, J., was of opinion that there was only one case in the Sadr Diwani Adalat, viz., that of Nundram v. Kashee Pandey in which the question as to the legality of the adoption of an only son properly arose and was decided, the opinions of the Pandits in the other cases in the Sadr Diwani Adalat would according to his rule be of little value.

I shall now consider the judgment of Westropp, C.J, in Lakshmappa v. Ramava. That was an important judgment, for although Westropp, C.J, was not deciding the question as to whether the gift in adoption of an only son by his father was in the Bombay Presidency void, and in fact assumed for the purposes of the suit in its then stage that such an adoption would not be void and that the texts in relation to it were directory only, and that if such an adoption were made in opposition to those texts the principle quod fieri non debet factum valet, should be applied to it (see pages 375 and 391 of the report), yet I think it can be gathered from the judgment that the opinion of Westropp, C.J, was against the validity of such an adoption.

Westropp, C.J, at pages 377 and 378 of the report assumes that Mr. Colebrooke's translation of the three passages in the Mitakshara, to which I have already referred, was correct, and at page 378 lays much stress on the fact that Mr. Colebrooke in rendering those passages, employs, with regard to the only son, the expression “must not,” and with regard to the eldest son the expression “should not.” I have already pointed out that the propriety of Mr. Colebrooke in those passages rendering the same Sanskrit word in two of the passages as “should” and in that relating to the only son as “must” requires explanation. Westropp. C.J, apparently relied to some extent upon the authority of Balambbatta's commentary, the Dattaka Mimansa, the Dattaka [93] Chandrika and the text in Saunaka (Caunaka) to which I have already referred. Westropp, C.J, then refers at pages 380, 381, 382, 383, 384, 385, 386, 387 and 388 to several reported cases, to only three of which owing to the condition of this Court's Library have I access. Some of those cases were apparently in favour of the adoption of an only son being valid or at least not void. It does not appear whether the Vyavasthas referred to as in Mr. Justice West's MS. were accompanied by texts in support of them or were sanctioned by judicial decision. The two Vyavasthas mentioned at page 391 of the Report as having been given to the Sadr Diwani Adalat of the North-Western Provinces are two of the Bywasthas I have already referred to.

In Waman Baghupati Bova v. Krishnaji Kashiraj Bova all that the Full Bench decided is best expressed in their own words which are, “But, although this course may be fairly open to a critic of the decisions of the Court, it is, in our opinion, very important, with a view to uniformity of decisions, that this Court should, in the absence of a very cogent reason to the contrary, not depart from the standard it has uniformly applied in appreciating the value of the different text-writers. Under these circumstances, it is sufficient, in our opinion, to say that the question has been determined by a Full Bench after full discussion against the validity of such an adoption, and that for the last ten years such an adoption has been regarded by the legal profession as being, in the view of this High Court, in contravention of Hindu Law, and that no reason which could properly be entertained, with due regard to the long established authority of Full Bench decisions, has been assigned which could justify our interference with that decision. We must, therefore, answer the question referred in the negative.”

The referring judgment of Jardine, J., and the judgment of that Full Bench are, not withstanding the manner in which that reference was decided, interesting and instructive. The Full Bench decision which the Full Bench in the case in I.L.R, 14 Bom. 249, declined to reconsider is unfortunately not reported, and apparently [94] no judgment was written in that Full Bench case, so that it would be mere speculation to consider what were the reasons of the Judges respectively for holding in that case that the adoption of an only son by a Lingayet was invalid. The Judges in that case apparently thought that a custom, if established, amongst Lingayets of making such adoptions would validate such an adoption amongst them. It does seem to me curious how, if the adoption of an only son is so sinful, so absolutely prohibited by the Hindu religion, and so destructive to the souls of Hindus as it is contended that it is, a local custom or a custom amongst particular Hindus could have the effect of overruling and setting aside the divine Hindu law on so material a point and avoiding the difficulties in which the soul of the giver in adoption of his only son and the souls of his ancestors would otherwise be left.

The latest decision on this question of the adoption of an only son in Madras, of which I am aware, is that in Narayanasami v. Kuppusami. In that case Collins, C.J, and Muttusami Ayyar, J., said, “We are not prepared to depart from the course of decisions in this Presidency, and we hold then that the adoption of an only son, if actually made, is valid, however sinful the act may be on strict religious considerations.” One of the cases to which those learned Judges had referred was Chinna Gaundan v. Kamara Gaundan in which Scotland, C.J, had given a judgment which was much criticised by Markby, J., in Manick Chunder Dutt v. Bhuggobutty Dossee and was referred to without criticism by Westropp, C.J, in Lakshmappa v. Ramava. I regret to say that I have not access to the reports of the cases upon which Markby, J. founded his criticism of the judgment of Scotland, C.J, and I must only assume that his criticism was correct so far as those cases went. It is however to be observed that Scotland, C.J also relied upon the Raja of Tanjore's case.

In the case in the Panjab of Adjoodhia Pershad v. Musammat Dewan Simpson, J., held, agreeing with a previous decision of that [95] Court that the adoption of an only son having once been made cannot be annulled, and that the validity of such an adoption depends rather upon local usage than upon the strict rule of Hindu Law upon the subject. In the same case Lindsay, J., held that the texts of Hindu Law relating to the adoption of an only son could not fairly be considered as directory only, and that such an adoption was invalid; but that a custom to make such an adoption having been proved the particular adoption was good, on the ground, as stated by him, that “custom overrules the law.”

I now come to the Full Bench decision of this Court in Hanuman Tiwari v. Chirai(5) from which we are asked to dissent. In that case the majority of this Court, Stuart, C.J, Pearson, Spaukie, and Old field, JJ. held that the adoption of an only son was sinful and blameable only and not void, and that such an adoption having taken place the principle quod fieri non debuit factum valet applied, and the adoption could not be disturbed. Of the contrary opinion was Turner, J., who relying upon Mr. Colebrooke's translation of the passage in the Mitakshara in which he translates as “must” the same word which in the preceding passage and in the subsequent passage he translates as “should,” and also relying upon the Dattaka Mimansa, the Dattaka Chandrika, and Saunaka, held that the adoption of an only son was invalid and that the maxim quod fieri, non debuit factum valet could not be applied. In conclusion Turner, J., said, “The consequence of the contrary ruling would be, according to Hindu Law, to inflict a penalty not only on the giver and receiver, but on the collaterals of the receiver, whose property might descend to a person solely entitled to claim it on account of benefits she is presumed to confer, but which he could not possibly confer.” I think it is obvious that it was the Dattaka Mimansa which was mainly responsible for the conclusion of Turner, J. The criticism on the constructions of the original of the passage in Saunaka cited by Turner, J., I have already referred to.

The position of this question as to the legality or illegality of the adoption of an only son stands thus, so far as the latest [96] decisions of the four High Courts in India and the Chief Court of the Panjab are concerned. A Division Bench of the High Court of Calcutta and a Full Bench of the High Court of Bombay have held that such an adoption is illegal and void. A Division Bench of the High Court of Madras has held that though such an adoption is sinful it is not void. A Full Bench of this High Court, Turner, dissenting, has held that although such an adoption is sinful, it is not void, and that the principle quod fieri non debuit factum valet applies to such an adoption actually made. The Chief Court of the Panjab holds that such an adoption is valid when a custom to make such an adoption is proved.

The question has never, so far as I am aware, been expressly decided by their Lordships of the Privy Council. But nevertheless there are some indications, slight though they may be, that their Lordships do not consider that the adoption of an only son is plainly void and that the principle quod fieri non debuit factum valet could not apply. In Nilmadhub Doss v. Bissumbhur Doss their Lordships of the Privy Council said, “Again, if there is, on the one hand, a presumption that Goorooproshad Doss would perform the religious duty of adopting a son, there is, on the other, at least as strong a presumption that Purmanund would not break the law by giving in adoption an eldest or only son, or allowing him to be adopted otherwise than as a Dwyamushyayana, or son to both his uncle and his natural father. This latter kind of adoption would not sever the connection of the child with his natural family.” I infer from the report in 13 Moo. I.A, that Ramlochan Doss, who was alleged by the respondents to have been adopted by Goorooproshad Doss, was at the time when he was adopted the only then surviving son of his father Purmanund Doss. At page 87 of the report it is stated that Rajiblochan Doss who was the eldest and the full brother of Ramlochan Doss, was dead at the time of the alleged adoption. He was the eldest son of Purmanund Doss. At page 89 of the report it is stated that the appellant filed a written statement by way of answer, and stated that Ramlochan Doss was the step-brother of the appellant, and that [97] Goorooproshad Doss had never adopted him or performed the Pootrashee (initiatory ceremony of adoption) and that, in fact, Ramlochan Doss, at the time of the alleged adoption, was the only son of their father, Purmanund Doss, and that he and his wife did not give in adoption his eldest and only living son,” &c. At page 93 of the report I find that Sir Roundell Palmar, in arguing the case for the appellant, contended that Ramlochan Doss was not, and indeed could not, have been legally adopted or given, inasmuch as at the time of such alleged adoption he was the only son of his father and, therefore, ineligible,” and in support of that contention he cited the Dattaka Chandrika, sec. 1, pla. 20, 21, 27 (Sutherland's translation), and Strange's Hindu Law, Vol. 1, 85, 2nd edition. I may mention that Sir Barnes Peacock, C.J, and Bayley and Kemp, JJ., had held, but on what finding of facts or law I do not know, that the adoption of Ramlochan Doss by Goorooproshad Doss did, as a fact, actually take place, and that it was a good and valid adoption. It is obvious from the passage which I have quoted from the judgment of their Lordships of the Privy Council, that their Lordships were dealing with the case on the basis of Ramlochan Doss having been at the date of the alleged adoption the only then living son of his father Purmanund Doss. If their Lordships had accepted the contention of Sir Roundell Palmer, which I have quoted, it would not have been necessary for them to have considered whether the alleged adoption had in fact taken place. On the contrary, their Lordships indicated plainly that such an adoption, if it had taken place, would not have been void, for in pointing out the distinction between the adoption, alleged and a Dwyamushyayana adoption, they said, “this latter kind of adoption would not sever the connection of the child with his natural family,” and they inferred that if Ramlochan Doss' father would have given him in adoption at all, it would have been in that form which would not have separated him from his natural family. Their Lordships never suggested that if Ramlochan Doss had been given in the dattaka form the adoption would have been void. I am entitled to infer that they did not think it would have been.

[98] The only other case from which may be inferred what the opinion of their Lordships of the Privy Council was as to the legality or illegality of an adoption of an only son, of which I am aware, is that of Srimali Uma Devi v. Gokooknund Das Mahapatra. In that case their Lordships of the Privy Council, referring to a contention at the Bar, said, at page 53 of the report: “It was urged at the Bar that the maxim “quod fieri non debuit factum valet, though adopted by the Bengal School, is not recognised by other schools, and notably by that of Benares. That it is not recognised by those schools in the same degree as in Bengal, is undoubtedly true. But that it receives no application except in Lower Bengal is a proposition which is contradicted not only by the passage already cited from Sir William Macnaghten's work, but by decided cases. The High Court of Madras in Chinna Gaundan v. Kumara Gaundan and the High Court of Bombay in Vyankatrav v. Anandrav, Nimbalkar v. Jayavantrav Bin M. Ranadive acted upon it; and did so in reference to the adoption of an only son of his natural father, on which the High Court of Calcutta in Opendur Lall Ray v. Ranee Bromo Moyee has refused to give effect to it, considering that particular prohibition to be imperative.”

It is obvious from the passage which I have just quoted that their Lordships of the Privy Council were quite alive to the fact that in the Courts in India there was a difference of opinion as to whether the adoption of an only son was void, in which case the maxim quod fieri non debuit factum valet could not apply, or such an adoption was merely sinful and not void ab initio, in which case that maxim might be applied if such a principle as that expressed in the maxim was recognised by the particular school, and yet their Lordships, although giving those examples of cases in which the maxim had been applied, did not suggest that in those cases that maxim was inapplicable. If the maxim was inapplicable in the cases which their Lordships cited as cases in which the maxim had [99] been applied, I would have expected that their Lordships would have said so and not have left it to be inferred that the propriety of applying the maxim in the cases to which they referred, merely depended on whether the particular school recognised such a maxim or not. It is most improbable that in support of Sir William Macnaghten's opinion, in which apparently they agreed, their Lordships would have referred to cases in which the maxim had been judicially applied, if in their opinion the maxim was inapplicable in those cases, and it must have been inapplicable if the adoption of an only son was void.

I am satisfied that although the giving in adoption of an only son is according to the Hindu Law sinful, and to that extent contrary to the Hindu Law, yet that the adoption of an only son so given is not void, and that the principle of quod fieri non debuit factum volet may be and should be applied to such an adoption in these provinces. I may say that before I came to look into this subject in this case I was under the impression based on the judgments of Westropp, C.J, and Turner, J., already referred to that an adoption in the dattaka form of an only son was void. In conclusion, I ought to say that I thoroughly agree with the Full Bench of the High Court of Bombay, that a High Court should not, except for very cogent reasons, reconsider or question the ruling of a Full Bench of its own Court. This case is a very fair example of the mischief which may arise from departing from cases fully considered and decided by a Full Bench. The Full Bench decision of this Court in the case of Hanuman Tiwari v. Chirai was given as long ago as the 24th of February 1879, and it is 1 impossible to say how many adoptions of only sons may since then have been made in these provinces on the faith of that Full Bench decision and in how many cases the overruling of that decision might affect the rights of persons, who relying upon it deemed themselves secure, effected marriages and dealt with property which came to them as such adopted sons.

My answer to the first question is that the adoption of an only son which has in fact taken place is not null or void under the [100] Hindu Law applicable in this case. Having answered the first question as I have done, I do not consider it necessary to give any answer to the second or third questions.

Straight, J.:— I have read the learned Chief Justice's judgment, and upon a full consideration of it and of the arguments on either side so much doubt is left in my mind that I am not prepared to depart from the Full Bench ruling of this Court reported in I.L.R, 2 All. 164. Many titles may have been created and many estates have vested on the strength of that ruling, and I do not think that any sufficient grounds have been established for holding it to be wrong. I would therefore answer this reference in the manner indicated by the learned Chief Justice.

Mahmood, J.:— My task in delivering this judgment is materially diminished in consequence of the advantage which I have had of perusing the judgment which the learned Chief Justice has prepared in this case, and also on account of my having on two previous occasions delivered judgments upon somewhat cognate questions of the law of Hindu adoption. Both the judgments have been printed in the reports, and I may conveniently refer to the pages of the published reports whenever it is necessary to deal with what may be called the preliminary aspects of the questions which have been referred to the Full Bench.

The main question as enunciated by Mr. Justice Young and myself, in our order of reference, dated the 10th June, 1890, is whether the adoption of an only son having taken place in fact, such adoption is null and void under the Hindu law.

The learned Chief Justice has pointed out that whilst there is a vast conflict of rulings of the High Courts in India, their Lordships of the Privy Council have not yet directly settled the question, and I may say that the latest case before their Lordships, Sri Ammi Devi Goru v. Sri Vikarma Deou, does not settle the question. In this state of things, and because the learned Chief Justice has already reviewed the various rulings and authorities that were cited, it would be a work of supererogation on my part to do [101] more than briefly state the reasons why, after much consideration, I have arrived at the same conclusion at which he has done. In doing so I wish to premise at the outset that the parties to this litigation admittedly belong to the twice born caste of Vaishya and that they are governed by the Benares School, or rather sub-division of the Mitakshara School, of the Hindu Law. I have mentioned this circumstance because, as appears from my judgment in Ganga Sahai v. Lekhraj Singh, the Hindu Law is sub-divided into various schools, and it does not follow that the interpretation of texts adopted by one school is to be necessarily followed by another. I may also add that this is a case of adoption under the Dattaka form, and that no question arises directly as to any other form of adoption.

In the case abovementioned after referring to various authorities, I summed up my conclusions in the following words:—

“First.—That the existence of male issue being favoured by the Hindu Law mainly for the purpose of the parents' beatitude in the future life, adoption is a sacrament justified by a fiction of law under conditions when the natural male offspring is wanting.

“Secondly.—That a substantial adherence to ceremonials, but principally the act of giving and taking, is sufficient to establish the adoption.

“Thirdly.—That when such adoption has duly taken place, its effect is the affiliation of the boy, as if by a feigned parturition he had been begotten by his adoptive father, thus removing the boy from the family of his natural to that of his adoptive parents.

Fourthly.—That the boy so adopted (to use the words of lagan Natha) ‘is born again by the rites of initiation, and his relation to the giver ceases and a relation to the adopter commences.’”

I have quoted these conclusions, not only because they still have my approval, but also because they help me in stating the grounds of my judgment. But before proceeding any further I wish to point out that, whilst the first conclusion as enunciated by me does [102] not limit the motives for adoption to spiritual beatitude of the adoptive father and his ancestors, it does not go the extreme length of holding, what was held by the Calcutta High Court in Rojendro Narain Lahoree v. Saroda Soonduree Debia, that a childless Hindu is bound to adopt a son, if at all anxious for his own salvation, that the duty is an imperative one, and what is required to be done for that end is not optional with him. I also wish to observe in passing that my second conclusion as above quoted was carefully worded to prevent any confusion between matters of ceremonial and those of essence in connection with the applicability of the doctrine of factum valet as applicable to Hindu adoptions. In the case abovementioned (vide, I.L.R, 9 All., pp. 292 to 297) I had to consider this question at considerable length, and at pp. 296 and 297 of the report I summed up my conclusions upon this point in the following words:—

“Now in the case of adoption there are of course questions of formalities, ceremonies, preference in the matter of selection, and other points, which amount to moral and religious suggestions. Such matters, speaking generally, are dealt with in the texts in a directory manner, relating to what I may perhaps call the modus operandi of adoption. To such matters which do not affect the essence of the adoption, the doctrine of factum valet would undoubtedly apply upon general grounds of justice, equity, and good conscience, and irrespective of the authority of any text in the Hindu law itself. There may, indeed, be cases where the express letter of the texts renders that which would in other systems be regarded as a matter of form, a matter of imperative mandate or prohibition affecting the very essence of the transaction. * * * * So also there may, of course, be definite texts of the Hindu law of adoption itself which, though relating to matters of form, would be sufficiently imperative to vitiate an adoption in which they have been disregarded. But unless such texts are express and undoubted in their meaning, I would apply the doctrine of factum valet to adoptions which, having been made in substantial conformity to the law, [103] “have infringed only minor matters of form or selection. Having so far explained how I understand the general scope of the doctrine of factum valet, I proceed to define upon 1 what points of Hindu adoption I would hold it to be inapplicable. Adoption under the Hindu Law being in the nature of gift, three main matters constitute its elements, apart from questions of form. The capacity to give, the capacity to take, and the capacity to be the subject of adoption seem to me to be matters essential to the validity of the transaction and, as such, beyond the province of the doctrine of factum valet; and I may at once say that if any of these three capacities is wanting in this case, I shall hold the plaintiff's adoption to be altogether invalid.”

I have quoted his passage in order to say that I still adhere to the views which I thus expressed, and also to show that it is in accordance with such views that I shall consider the texts and authorities which have been cited in this case as to the adoption of an only son being void and a nullity. Dealing with the case in this manner, it is obvious that the nature and significance of the authoritative texts assumes great importance, and also the language in which they are expressed. This being so, I wish to excerpt two passages from the most recent writer upon the Hindu Law of adoption, namely, Mr. Golap Chandra Sarkar Sastri, who is known not only to be a competent Sanskrit scholar, but also a trained lawyer, as appears from the lectures which he delivered as Tagore Law Professor in 1888. At page 146 of his work he observes—

“I have already told you that rules of legal and moral obligation have been blended together in the institutes of Hindu Law, and that the parts of them dealing with positive law also contain some rules that appear to be merely admonitory or recommendatory, and not mandatory or imperative. I have also pointed out that the leading commentators themselves draw the distinction and declare a few rules to be of moral obligation only. But at the same time it seems that they have not always kept the distinction in view while discussing the texts of law, so as to point out all the rules are intended to be merely directory, and the “Courts of Justice [104] had to consider the question, and have pronounced a few rules to be of that character. * * * * It is now admitted on all hands that there are certain rules which are not legally obligatory; but the difficult question with respect to this matter is, how are we to differentiate between imperative rules of law and those 14 that are merely binding on the conscience of men? The difficulty is enhanced by the facts that the forms of expression generally used in the Sanskrit books are the same whether legal or moral obligation be intended. So it becomes necessary to consider what principles have been followed by the commentators in declaring a precept to be of no legal force.”

I have been anxious to quote these passages because in the course of the argument it was insisted that none of the three capacities for adoption, which according to my abovementioned views are necessary for the validity of an adoption under the Hindu law in the Dattaka form, is indispensable for the validity of an adoption already made.

The learned Chief Justice's judgment has relieved me from the necessity of dealing with those various authorities which seem to rely for their interpretation principally, if not wholly, upon early translations made by European scholars of Sanskrit, such as the eminent Colebrooke and Sutherland, to be found in the collected edition of Stokes' Hindu Law books published at Madras in 1865. Since that period three books bearing upon the main question in this case have been written by Sanskritists. The first is Mr. Mandlik's excellent edition of the Vyayahara Mayakha, published in 1880. The second is Dr. Jolly's History of the Hindu Law of Partition, Inheritance, and Adoption, which appeared as the Tagore Law Lectures for 1883 and was published in 1885. The third is a work on the Hindu law of adoption by Golap Chandra Sarkar Sastri, M.A, B.L, and was published in 1891 as the Tagore Law Lectures of 1888.

It is to these books that I shall principally refer in delivering the rest of my judgment upon the most important question which has to be dealt with in this case.

[105] Mr. Mandlik, at page 496 of his valuable work, says—

“The next subject I have to notice is the giving in adoption of an only son. A precept about not giving nor receiving in adoption an only son is found in some of our Smritis. But this, like that about the eldest son, has been always regarded as purely directory, or recommendatory. The usage of adopting such a son has been both ancient and general and has been followed by the preceding Governments as well as by our own. It has been also generally upheld by our Courts.”

The learned author then in a footnote (at p. 497) refers to numerous decided cases including the Full Bench ruling of this Court in Hanuman Tiwari v. Chirai, where it was held that the adoption of an only son cannot, according to Hindu Law, be invalidated after it has once taken place. Whilst citing these cases with approval, the learned author proceeds as a Sanskrit scholar to consider the text bearing, scope, and effect of the original Sanskrit texts which have been cited in this case for the proposition that the adoption of an only son is absolutely prohibited and therefore void.

I do not propose to enter into any minute discussion as to the various steps of reasoning which fill the next dozen pages of Mr. Mandlik's work, and I think it is enough to say that I accept the authority of such an eminent Sanskrit lawyer for holding that the texts relied upon for the opposite proposition do not sustain the argument addressed on behalf of the plaintiff-appellant to the effect, that they involve negation of any one of the three legal capacities which I have before now described as forming the essence of the right and power of adoption, even when an only son has been adopted. In this interpretation of those texts Mr. Mandlik's views are fully supported by what another Hindu Sanskrit scholar and lawyer, Mr. Golap Chandra Sarkar, says at page 284 et seq. of his work on adoption. I wish to add in connection with the exact interpretation of the Sanskrit texts that I have had the honour and advantage of consulting my respected friend, an eminent Sanskritist, Mr. Archibald E. Gough, Principal of the Muir Central College, Allahabad-[106] and that his interpretation of those texts is consistent with the meaning placed upon those texts by the two Hindu Sanskritists and lawyers above-mentioned.

Consistently therefore with the views which I expressed in Ganga Sahai v. Lekhraj Singh, I hold that such restrictions as are indicated in the texts upon the adoption of an only son are merely religious and moral as distinguished from legal; that they amount to moral or religious admonitions relating to the choice or selection of an only son for purposes of adoption as a matter resting between the giver and the taker; that as such admonitions they do not in law vitiate any one of the three capacities which I have held are essential to the legal validity of Hindu adoption. And it follows, therefore, that the doctrine of factum valet applies to this case.

This answers the reference to the Full Bench; and I should have stopped here, but for the fact that stress was laid in the course of the discussion that I am precluded from any such view by the reasoning upon which my judgment in the Full Bench case of Tulshi Ram v. Behari Lal proceeds. In that case my views had the approval of the learned Chief Justice and my brothers Judges, and I need scarcely say now that I am satisfied with the distinction which the learned Chief Justice has drawn in his judgment in this case between the interpretation of the texts in that case and those which have to be considered here. I may, however, say perhaps that in the case of Ganga Sahai v. Lekhraj Singh, to which I revert for easy reference, I stated (at page 290) that the Mimansa formed a source of Hindu Law and governed the interpretation of its, texts; and that in the case now before us, the learned Chief Justice has shown how the rules of interpretation adopted by Jaimini justify a distinction between an adoption by a Hindu widow without her husband's authority and the adoption of an only son given by his natural father to a widow who has been duly authorized by her husband to take a son in adoption. I may also add that irrespective of Jaimini's rule of interpretation, there are [107] many important reasons, as stated by me in Tulshi Ram v. Behari Lal, which, according to my notions of the Hindu Law, distinguish the power of an unauthorized Hindu widow to adopt a son from the question which has arisen in this case.

In connection with the suggested conflict between my ruling in Tulshi Ram v. Behari Lal and the views which I have taken in this case, I am anxious, in order to prevent possible confusion in the future, to point out that at page 337 of the report I distinctly reserved the question which arises in this case, and that referring to the same matter at page 339, I distinctly indicated the scope of the question with which I had then to deal to the exclusion of the adoption of an only son with reference to the Full Bench ruling of this Court in Hanuman Tiwari v. Chirai.

I do not wish to end this judgment without explaining two further matters for preventing any possible misapprehension of the ratio decidendi adopted by me in the two earlier adoption cases to which I have repeatedly referred. Now, in the first of these cases, Ganga Sahai v. Lekhraj Singh, I explained that the beatitude of the adoptive parent is the main I did not say the sole object of adoption, and so far as the spiritual beatitude is concerned I need only referto what has been said by Mr. Mandlik (at pp. 456 and 457) to show that the begetting of a son is a mora obligation, and failing that, adoption is desirable, and that failing either the childless Hindu may attain salvation by other methods. In this connection I may also invite attention to the remarks made by the same learned author at page 500 of his work; so that in the case of the father of an only son giving that son away in adoption his spiritual welfare may be secured by him by other methods. And this answers any difficulty which may arise over the views expressed by me in the case cited as to the spiritual beatitude being the main reason for the Hindu Law of Adoption.

[108] Now, the next matter which I wish to explain is common both to my judgment in Ganga Sahai v. Lekhraj Singh and that in Tulshi Ram v. Behari Lal. The contention is that so far as the authority of the Dattaka Mimansa of Nanda Pandit is concerned those two judgments are conflicting; that, in the present case, not only the authority of the Dattaka Mimansa, but also that of the Dattaka Chandrika, are binding authorities upon this Court, and that since they agree in declaring the adoption of an only son to be void, they should be followed by us as they were by the recent Full Bench ruling in Waman Raghupati Bova v. Krishanaji Kashiraj Bova.

In regard to this part of the argument I wish to invite attention to what I said in Ganga Sahai v. Lekhraj Singh as to the various grades of authority to which the Hindu Law text-books are entitled, according to the class to which they belong in Hindu jurisprudence. The Dattaka Mimansa, as also the Dattaka Chandrika, belongs to the last of the classes, namely, Nivandhana or digests, prepared by later writers according to their interpretation of higher authorities. As to the former of these two I have said enough in the above case (at pp. 322-324) and again in Tulshi Ram v. Behari Lal, and I need only say that so far as the authoritativeness is concerned I hold the same views also in regard to the latter of these works. The result is that, in my opinion, both these works, since they do not belong to the higher grades of Hindu law books, are open to be questioned by citation of other authorities, as has been done in this case. The summary of the Dattaka Nirnaya given by Dr. Jolly at page 309 of his work (Tagore Law Lecturer for 1883) and again the discussion of the same subject by Mr. Mandlik at page 501 of his work sufficiently justified that in a case like this the authority of the Dattaka Mimansa, or the Dattaka Chandrika is not so supreme and binding as to preclude the conclusion at which the learned Chief Justice has arrived in this case and in which I have expressed my concurrence.

[109] In conclusion, I wish to say that no sufficient reason is shown for us to depart from the last Full Bench ruling of this Court upon this point in Hanuman Tiwari v. Chirai and that my answer to the reference in this case is the same as that given by the learned Chief Justice, rendering it unnecessary to deal with the two remaining questions referred to the Full Bench.

Knox, J.:— The first and, indeed, the main question referred to us is, whether or not the adoption of an only son having taken place in fact, such an adoption is null and void under the Hindu Law?

This same question was in 1879 referred to a Full Bench of this Court for decision with the result that all the Judges who composed that Full Bench, with the exception of Mr. Justice Turner, were unanimous in the answer given that “the adoption of an only son is not altogether void, but that having once been made the adoption is valid.”

The question therefore is not res integra. It has already been answered by this Court in the affirmative, and as the answer was given by a Full Bench of the Court, it would, according to long and established practice, be regarded as conclusive, unless a decision of the Privy Council militating against it could be pointed out, or as Sir Charles Sargent adds, unless perhaps “the Court could be clearly shown to have formed its conclusion upon a mistaken impression as to the text of the Hindu Law books upon which it relied”: Sir C. Sargent in Waman Raghupati Bova v. Krishnaji Kashirav Bova.

We have been referred to no such ruling of the Privy Council. On the contrary both parties are agreed that the question is one upon which their Lordships have not up to the present date delivered themselves of any decision. It only remains to be seen whether the decision is in accord with the principles of Hindu Law.

The reason given why the Court should reconsider the opinion at which it arrived in 1879, is that the answer of the Full Bench in that case is felt by some to be an answer open to serious doubts. [110] The learned Judges who joined in making the reference allude to two cases in which this doubt led Division Benches of this Court in 1886 to refer the same question a second time for consideration by a Full Bench. They refer also to a number of cases for and against the validity of the adoption of an only son, and those cases do beyond all doubt establish that the question is a question upon which there does exist, and has always existed among the Courts in India much conflict of authority.

To my mind, however, the fact that twelve years have passed since this Court pronounced upon the validity of such an adoption, and the further fact that its dictum cannot fail, so far as these Provinces are concerned, to have had considerable weight upon the minds of all prudent persons, who may have sought to perpetuate their name and lineage by an adoption of this nature are facts which cannot be left out of consideration and which would in any case make me hesitate to give utterance to an opinion in the opposite direction. I feel that before I could do so I should need irrefragable proof that the prior ruling rested upon either a wrong foundation or upon no foundation at all. I consider it a happy result that careful examination of the text-books confirms and places, so far as I am concerned, beyond the region of reasonable doubt the wisdom, truth and soundness of the conclusion at which this Court arrived in 1879. For, as I have already pointed out, it is not difficult to conceive that there may be some or even perhaps many families who would be thrown into serious trouble and unrest if we found it necessary now to hold otherwise on this point.

I have considered the question with the gravest anxiety. Had it not been for the approaching departure of my brother Straight, I should have deemed it necessary to ask the Court to postpone the delivery of this judgment until I had found it possible to place on record all the information, I have obtained and the various reasons why I feel satisfied that the only true answer that can be returned to the question is that the adoption of an only son, once it has taken place, been completed and recognized, must so far as the provinces over which this Court has jurisdiction are concerned, be [111] considered a valid act. Such an act may be the height of imprudence on the part of the giver; it may even, by those who pride themselves upon their strict observance of Hindu scripture, be considered a blameable act. But upon the authority of the same scripture it is as I shall presently show an act which is not a “Mahapatak”: it ranks and is classed with acts which are “Upapatak,” which can be atoned for by penances of a comparatively easy description, and when atonement has been made, the author of the act is as capable of going to heaven and is as pure as those who have performed meritorious deeds.

But before going to the text-books themselves I propose examining very briefly the cases in which an opinion contrary to that held by this Court is to be found. Such an examination will best show the difficulties which have been felt in the minds of Indian Judges, some of them Judges of exceptionally high authority, and which have led those Judges to the conclusion that Courts in India are compelled to treat an adoption of this nature as an act which cannot possibly be performed and which must therefore be considered utterly null and void.

The cases to which we were referred in the argument as cases in which the adoption of an only son had been finally and in definite terms held to be invalid, were four in number:—

Nundram v. Kasha Pandey.

Manick Chunder Dutt v. Bhuggobutty Dossee.

Upendra Lal Roy v. Srimati Rani Prasanna Mayi.

Waman Raghupati Bova v. Krishnaji Kashirav Bova.

In the first of these cases the ground upon which such an adoption was declared invalid was the opinion given by the Pandits who were consulted that according to the law current in Tirhoot the adoption of an only son was invalid.

[112] I have been unable to consult the reports in which this case is contained, and the only reference to it, as given in I.L.R 3 Calc. p. 450, contains none of the reasons which led the Pandits consulted to form that opinion or of the reasoning by which the Judges felt constrained to accept that opinion without reserve. The case therefore cannot be pressed further than this, that it is an authority in favour of the view that the law as understood by Pandits concerning such adoptions in Tirhoot and as current in the years 1823 and 1824 was to the effect that an adoption of this kind is invalid.

In the second case Mr. Justice Markby, and with him the learned Chief Justice, Sir Richard Garth, held that the entire authority in Bengal was against the validity of the adoption of an only son, and that for all classes of Hindus in Bengal such an adoption must be held invalid wherever the effect of the adoption if valid would be to extinguish the lineage of the natural father and to deprive the ancestors of the natural son of the means of salvation.

The third case is the one in which Mr. Justice Mitter pronounced that the adoption of an only son was forbidden by the Hindu Law; that the subject of adoption was inseparable from the Hindu religion itself, and that all distinction between religion and legal injunction must be necessarily inapplicable to it. He also enunciated his opinion that one of the essential requisites of a valid adoption is that the gift should be made by a competent person, and that the Hindu Law said distinctly that the father of an only son had no such absolute dominion over that son as to make him the subject of a gift. From this he naturally went on to say that the doctrine of factum valet would not help towards rendering such an adoption when made a valid act.

There remains the case in which the learned Chief Justice of Bombay, Sir Charles Sargent, and with him the rest of the Judges in Full Bench assembled, concurred that a previous Full Bench had decided after solemn argument that the adoption of an only [113] son was by general Hindu Law invalid, and that no reason had been assigned which could justify interference in that decision.

The judgment which has just been delivered by Sir John Edge, and which I had the privilege of reading before it was delivered, contains such a careful and exhaustive examination of these cases and of the influences under which those precedents were apparently prepared that it is quite unnecessary for me to take up the time of the Court with observations of alike character. The reasoning of the learned Chief Justice appears to me exhaustive and convincing upon this part of the case. I shall confine my judgment to an examination of the original texts, and show that the reasons given in each of the judgments above quoted are reasons which appear to me based either upon a wrong estimate of the value of the authorities themselves, or of the value which those authorities intended to attach to such an adoption, or upon an imperfect knowledge of the text of the authorities. Under this last head would I also place errors which have flowed from a consideration of a single text detached and apart from its context.

I wish to add that I do so with extreme diffidence, and with the pro-foundest respect for those from whom I am compelled to differ. For it cannot be denied that the late Mr. Justice Dwarka Nath Mitter was versed in the Sanskrit language and that he, Mr. Justice Markby, Sir Michael Westropp and Others who acquiesced in these reasons were lawyers who had devoted considerable time and attention to the subject of Hindu Law.

In order to arrive at a right conclusion as to what is or is not forbidden by Hindu Law, it is necessary to define accurately the position occupied by the writes of the texts that will presently come under examination. These writers may be placed, so far as sequence of time is concerned, in three groups. In the first would come Manu, Vasistha and Yajnavalkya, in the second Narada and Vijnaneswara, and in the third by himself Nanda Pandita, the author of the Dattaka Mimansa. I do not propose to enter into any abstruse questions of chronology; it is sufficient for my purpose to show that there is a broad line of demarcation in point of time and also of binding authority between these several groups of [114] authorities. Nor would I deem it necessary to deal with the question at all, were it not for attempts made in the course of argument to treat all the authorities cited as entitled to equal weight and respect. True criticism teaches very differently. It is conceded that what is now received and known as the Institutes of Manu may be taken to be anterior in point of time, or at any rate to represent more accurately than any other work the oldest exposition extant of Hindu Law. It is asserted by some that the author or authors were men who possessed and did wield the authority of kings. So far as those Institutes are concerned, I shall show that from either point of view, viz., that whether the authors were lawmakers and law-givers or whether they were merely law-teachers, the result, so far as the present question is Concerned, is the same. Every orthodoz Hindu would unhesitatingly allow that Manu, Vasistha and Yajnavalkya received what they afterwards promulgated direct from Divine sources. He would maintain or acquiesce in the view that every word uttered by these Sages stands above criticism and should be deemed binding upon the conscience if not upon the conduct of everyday life. The second group be would put on a different footing; he would probably allow that the text of Narada was of very great weight and that Vijnaneswara was a commentator entitled to much respect, but still only a commentator. In the case of both and especially of the latter, criticism would not be resented, particularly when there appeared to be conflict between them and the sayings of the first group of writers. And when the third group is reached, he would be prepared to allow that the work of Nanda Pandita is as much open to review as the text of any commentator of the present, school.

As, however, the present question cannot be dismissed as the more orthodox Hindu would dismiss it, with the mere dictum that the answer to it does or does not rest upon Divine revelation, I am compelled to add a few further remarks upon the position occupied by Vasistha, Manu and Yajnavalkya.

The fact that what we possess of the sayings attributed to the writers in the first group has come down by tradition, shows that [115] those sayings were possessed of vitality strong enough to defy the power of time. Even if they do contain words that have been misunderstood or misquoted, even if they contain additions or interpolations, the words misunderstood, the additions and interpolations are of venerable antiquity, and have so far been accepted by the generations through which they have passed before they reached the hands of the commentators that no distinct command contained in them can now be said not to amount to a command. They are sayings which do constitute law, and where they have to be explained away or added to, the only safe ground upon which such explanation or addition can be accepted is that the explanation or addition springs out of or rests upon or which terms may, if freely translated, be said to represent “custom” in the proper and legal sense of the word. I shall presently show that Manu himself does not object to such custom being accepted as law provided it be ascertained and settled after enquiry made by a sovereign power who knows the Sacred law.

The authority of Narada, however, and of the commentators after him rests upon a very different footing. The highest position which Professor Jolly, who has made Narada's work the subject of special study, would allot to his Smriti is that it is an independent and therefore specially valuable exposition of the whole system of Civil and Criminal Law as taught in the law schools of the sixth century of the Christian era. This is, I venture to think, aright estimate. As for the rest their authority is in my opinion almost, if not quite, as much open to examination, explanation, criticism, adoption or rejection as the work of any scientific treatise on European or American jurisprudence: where they deviate from or add to the Smritis, great caution is required in adopting their gloss, and still greater caution if it is made to appear that or is in apparent harmony with the Smriti and at discord with the gloss.

Their Lordships of the Privy Council have recognized that the authority of Manu is one which may properly be referred to when [116] it is necessary to resort to first principles in order to ascertain and declare the Law. I propose to refer to it for two purposes:—

1st—To point out what the Institutes of Manu teach as Law to be enforced by a king upon his subjects. So far as I am concerned, it seems to me treading on dangerous ground to lay down as positive Hindu Law 1 which is to be enforced, by our Courts any precept which is foreign to the teaching contained in the Institutes of Manu.

2nd—To bring together all the texts which are contained in the Institutes of Manu on the subject of adoption.

As regards the first point it will be remembered that Manu opens with a demand on the part of the great Rishis to be taught precisely and in due order the sacred laws appertaining to the different castes. In complying with their request after certain preliminary remarks upon the creation of the Universe, Manu is described as laying down that in his work the sacred law has been fully stated as well as the good and bad qualities of actions and the immemorial rule of conduct by all the four castes. The rule of conduct is transcendent Law, whether it be taught in the revealed texts or in the sacred tradition, hence a twice-born man who possesses regard for himself should be always careful as to it. He further teaches in the second chapter and 6th verse that the whole Veda is the source of the sacred Law, next the Smriti (or tradition) and the virtuous conduct of those who are learned, also Achara (or the customs) of holy men, and self-satisfaction.

The seventh chapter is entirely devoted to the duties of kings, and very significant verses in that chapter as to the view which Manu, and with him every true Hindu, would take of Law, are the 14th and 18th verses, which run as follows:—“For the (King's) sake the Lord formerly created His own Son, Punishment, the protector of all creatures and the (i.e, an incarnation of the) Law, formed of Brahmans' glory.”

“Punishment alone governs all created beings, punishment alone protects them, punishment watches over them while they sleep, the wise declare punishment the law.”

[117] Chapter VIII is devoted to an exposition of the civil, the criminal and the ceremonial law which a king according to Manu is bound to administer. In the 41st verse of that chapter we read that a king “who knows the sacred law should enquire into the laws of “caste, of districts, of guilds, and of families, and settle the “peculiar law of each”.

It is worth nothing that the word translated “settle” in this verse according to a commentary (the Manvarthaehandrika, written by Raghavananda Sarasvati) should be read which would make the last clause run, “Protect the peculiar law of “each.” Observations on the subject of interest, debt, pledge, contract, fraud and force as vitiating contract, bailment, sale and gift without ownership, title by purchase, wages, master and servant, boundary disputes and other kindred matters are spread over some 120 slokas. As many more slokas are taken up with assault, theft, and other crimes. I have examined the whole of this chapter with the utmost care, and there is not one word in it which attaches any disability or punishment to, still less contains any prohibition against, the kind of adoption now under consideration. The ninth chapter is first devoted to the propounding of the duties of husband and wife. The next subject treated in it is the subject of inheritance, and of this chapter I shall have more to say when I bring together the verses relating to adoption. I pass it over for the present with the remark that anyone who seeks to find in it any disability or punishment attached to or direct prohibition against the adoption of an only son will weary himself in vain.

In the eleventh chapter the subject treated of is penance. Offences are classified therein as Mahapatakas (mortal sins) and Upapatakas (minor offences) and of both verse 108 says that by means of the penances laid down in the verses preceding verse 108, “men who have committed mortal sins may remove the guilt, but those who have committed minor offences causing loss of caste” can remove their guilt by the penances set out in the verses following verse 108. This chapter has also been considered by me with minute care and attention. The range of acts which are classified under mortal [118] offences and minor offences is a very long and varied one. The only text which can by any possibility bear upon the performance of a sinful or invalid adoption is verse 66, and this runs as follows:— “Neglecting to kindle the sacred fires, theft, non-payment of (the three) debts, studying bad books and practising dancing and singing” are all (see verse 67) classified as minor offences causing loss of caste. The text of verse 66 contains only the words which literally translated is non payment of debts. I think, however, that it is by no means forcing the words to place upon them the interpretation that they refer to the nonpayment of the “three debts,” a term familiar to every Hindu. One of the three debts is the procreation of a son. If the verse does not apply to those three debts there is again no offence in this list which can be held to include the offence of bringing about an unlawful or sinful adoption. If the verse does allude to such an adoption, then the act is an Upapatak or minor offence. Verses 72 and 108 et seq. teach how such an offence can be expiated. This penance may be briefly described as living in a cow house for a month, fasting for two months more, worshipping and serving cows, and culminates in the giving of ten cows and a bull to Brahmins. If his conscience is particularly sensitive the offender may add strict fasting relieved only by a meal once a day on boiled barley gruel. I mention this detail in order to give some appreciation of the estimate in which the offence, if it can be called one, is held, and the comparative case with which it may be expiated. Verse 240 teaches that if these austerities are performed the offender is freed from fall guilt. I must not dismiss this chapter without the further observation that the disability of exclusion from inheritance has not been overlooked. It is a disability prescribed as attaching to one who associates with an outcast (v. 185). The following verses, however, show that upon performing the necessary penances even such an one can recover his position purge himself of his offence, and free himself from the disability of loss of inheritance.

[119] From this resume, and I think it is one which will bear close examination, the following conclusions appear to be established:—

1st.—That according to Hindu Law as propounded by Manu, an act prohibited is an act for which punishment is prescribed by the same law.

2nd.—That nowhere is a king enjoined to regard a wrongful adoption as an act which is to be followed by or punishment.

3rd.—That such an act is not alluded to in the treatise on civil law, still less is any disability prescribed for it.

4th.—That at the outside such an act is an upapatak, causing it is true, temporary loss of caste, but easily expiated and after expiation as much forgotten as if it never had been committed at all.

5th.—That the possibility of exclusion from inheritance as a disability is not a consequence which has escaped the attention of Manu, but that it has been nowhere laid down as a consequence for the adoption of an only son.

To bring together the several texts to be found in Manu on the subject of adoption. They will be found to be very few indeed, and occur in the ninth chapter only. Verses 141 and 142 run as follows: “If the man who has an adopted, son possessing all good qualities that same shall take the inheritance though brought from another family; an adopted son shall never take the family and estate of his natural father, the funeral cake follows the family and the estate, the funeral offerings of him who gives cease.”

Verse 159 mentions the son adopted as one of the six heirs and kinsmen: verse 168 is the most important of all and defines the qualifications necessary for a good adoption. It runs as follows:—

“Whom the mother or the father give, with ‘water,’ a son, in distress, similar, endowed with affection, he is to be deemed a Datrima, one brought forth.” In this translation I have attempted to follow the text word by word, and without interpolating or [120] taking away any particle. This will account in some measure for the roughness of the translation, but in an important passage like this it is a matter of necessity to weigh each word and to give its proper weight and significance.

I have been referred to no other text, nor have I either on previous occasions, when I made the laws of Manu the subject of special study, or on the present occasion, when I have attempted to refresh so far as time would allow, my memories of past study, discovered any text which lays down any other qualification or disqualification connected with an adopted son.

Now a close examination of these texts appears to establish the following conclusions.

1st.—That Manu did devote consideration to the qualifications which go to the essence, if I may call it, of an adopted son, or, to use an expression which has found favour with some learned Judges, the capacities which must unite in a person whom another wishes to give or take in adoption.

2nd.—That as the result of such consideration he solemnly formulated the following as necessary qualifications:—

(a) Gift by mother or father.

(b) Gift evidenced by an outward symbol, viz., the ceremony of water or “waters.”

(c) Gift of a son.

(d) Gift in distress.

(e) The son given must be similar.

(f) The son given must be endowed with an affectionate disposition.

One further qualification may perhaps be inferred, from verse 141, viz., that he must be a son possessed of all good qualities, but the words used in that verse probably are words pointing to verse 168, and “all the good qualities” to which these particular words refer are only the several qualifications which are included within the four corners of verse 168.

[121] Now after this explanation of the only verses which mention adoption, and I have laboured to keep with the utmost closeness to the text, it must strike even a casual observer as curious and extraordinary that Manu should insist upon, as necessary qualifications, that the son must be similar, in whatever that similarity may consist, that he must be endowed with affection, and that he should overlook the qualification that he must not be an only son. To my mind, the one only legitimate conclusion that can be arrived at by any thoughtful and well-balanced mind, is that at the time when the Institutes were handed down and first received, similarity in point of caste was a most necessary qualification; to be endowed with an affectionate disposition was a qualification second only to the former; but that no thought was then received as current which pointed to the necessity of an adopted son being chosen out of a family which contained more than one son. The difficulty of importing the qualification that the son adopted must not be an only son into this text of Manu, was a very serious difficulty to the commentators who wished to advocate it. They were compelled to fall back upon verses in the ninth chapter and to weld them in with this verse. The verse upon which they rely is verse 138 in Chapter IX. That and the preceding verses are as follows:—

V. 137. By a son a man obtains victory over all people; by a son's son be attains immortality (not the immortal abodes). Then by the son of that son he reaches the region of Brahma. V. 138. Since the son delivers the father from the region called “Put” he was therefore called “Putra” by Brahma himself. I shall allude to verse 138 again: if verse 137stood alone the primary idea of a son exactly corresponds to that of the Psalmist. The man that hath sons shall “speak with his enemy in the gates.”

From these texts the commentators claim the inference that Manu did know of the essential qualification that a son adopted must not be an only son. All I would say is that, if he did, it is and ever will be to me a mystery why he should have left it as [122] an inference and not mention it in the terms either of a positive direction or prohibition.

It is enough to pass from the consideration of Manu with this result that “the want of authority to give or to accept and the imperative interdiction of adoption” which prevented Sir Michael Westropp from applying the maxim factum valet to the adoption of an only son is not to be found in the text of Manu, still less is there any text to the effect that the father of an only son cannot give, that his gift cannot be accepted, and that the son cannot be given.

The Dharma Sashtra of Vasistha, or as much of it as has been preserved, upon the two points with regard to which I have already examined the Dharma Sashtra of Manu is much to the same effect. On the first point, viz., what is to be considered the law of the land, its teaching is as follows:—

The sacred law has been settled by the revealed text and by the tradition; on failure of these the practice of the Shistas (or men whose heart is free from desire) have authority. Manu has declared that the law of countries, castes and families (may be followed) in the absence of rules of the revealed texts (v. 17, chapter I.)

The doctrine of Mahapatakas and Upapatakas or minor offences causing the loss of caste (Chapter I, vv. 19-23); and also punishment as one of the chief duties of kings, is recognized. (Chapter XIX, v. 40).

Penance (Chapter XX), is recognized and also its efficacy for removing the taint of guilt.

The one passage of great importance however is contained in the opening verses of Chapter XV, and it runs as follows:—

“Man formed of uterine blood and virile seed, proceeds from his mother and his father as (an effect from its cause). The father [123] and mother have power to give, sell and abandon him, but should not give or should not take an only son, for he is for the prolongation of the line of ancestors.”

It is contended and has been contended before us with great persistence by Mr. Banerjee that we must accept this saying of Vasishtha's as a direct prohibition having the force of law.

The first difficulty connected with its acceptance as a direct prohibition is that the words which represent “he should give” and “he should take” are verbs couched in the optative mood.

Now the Sanskrit language permits of a verb being conjugated in three amongst other moods, viz., the imperative, the subjunctive, and the optative. The imperative signifies as in other tongues, a command or injunction, an attempt at the exercise of the speaker's will on some one or something outside of himself. The subjunctive may be omitted as it became very early extinct or all but extinct. The primary office of the optative is the expression of wish or desire. In the oldest language its prevailing use in independent clauses is that to which the name optative properly belongs, “but the expression of desire” on the one hand passes naturally over into that of request or entreaty, “so that the optative becomes a softened imperative; and on the other hand it comes to signify what is generally desirable or proper, what should or ought to be and so becomes the word of prescription; or yet again it is weakened into signifying what may or can be, what is likely or usual, and so becomes at last a softened statement of what is.” Whitney, paras. 572-575.

It may, however, be said and with truth that nearly every text contained in Vasishtha runs in the optative mood, and that in the classical language no sharp line of division exists between the imperative, subjunctive, and optative.

Both such statements if made would need qualification. Vasishtha can, as for instance in Chapter XI, verse 45, give a very imperative direction, and does do so by using after the optative dadyat (the very mood and verb used for “he should give” in Chapter X, v. 3—the verse which deals with the giving and taking of an only son)—the [124] adverb He does not add this adverb in Chapter X, v. 3, and the inference we are entitled to draw is either that he felt the precept of giving an only son could not be enforced as a law and must be left as a desire, or that he never meant it to reach a higher platform than that of entreaty or desire.

The second qualification is that, while it may be said that there exists no sharp line of division between the imperative and optative moods it cannot be denied that there does exist a difference of degree. One would not expect to find a softened form of imperative used when the object was to stigmatise an act as impossible or as an act forbidden by a strong interdictory mandate.

However, the reason why I am not prepared to attach to this verse the force of a direct prohibition rests not on the grammar only, but upon the treatment of the subject of adoption by Vasishtha himself, the second of the subjects proposed by me for examination. In the sixth verse of the fifteenth chapter the man who desires to adopt a son is advised to take a not remote kinsman, just the nearest among his relatives. If after so taking him the adopter entertains doubt, and this doubt, the commentators explain as a doubt regarding the caste or other qualifications of his adopted son, the adopter is advised to set him apart as a Sudra. Now if it be conceded for the sake of argument that one of the qualifications is a doubt whether or not be is an only son, then according to Vasishtha the expedient course to adopt is to set apart the unfortunate boy as a Sudra. It is not said that he becomes a Sudra or ceases to belong to the family or that his adoption becomes ipso facto null and void. And lest any one should say that he can never be readmitted into caste, Vasishtha in the 17th verse of the same chapter adds, that the performance of penance will enable any outcaste to readmission even to sacred rites. But as I said before, whether this was the qualification alluded to by the writer is, and must probably remain, conjecture.

It may be said with safety that the adoption of an only son is an inexpedient act. Any assertion that Vasishtha meant more is matter of doubt.

[125] Once more Vasishtha deals with the question of inheritance and exclusion from inheritance. Thus Chapter XVII, vv. 52, 53, “Those who have entered a different caste, eunuchs, madmen and outcastes, receive no share.” No allusion is made to only sons who have been taken in adoption, and the absence of any mention of them cannot be said to have been the result of forgetfulness or accident.

There remains however a still further reason, and one which will probably be appreciated still more strongly by Hindus, and after all the only way of attaining a proper knowledge of Hindu Law is by placing one's self, as far as a foreigner possibly can, on the standpoint from which a Hindu would look at the question. To import foreign ideas and bring them to bear upon interpreting Sanskrit texts when modes of interpretation sanctioned by Hindu logicians of the highest authority are forthcoming is an obvious error. In the present case we have the advantage of such a guide in the Purwa Mimansa of Jaimini, Chapter I, section 2, verses 26-30. That learned philosopher about whose authority there is no room for doubt lays down as a rule of interpretation both for civil and religious ordinances that where a text, is followed by a clause assigning a reason, a doubt at once arises whether such texts are simply commendatory or obligatory. Now the word Jaimini uses in this passage for obligatory is expressed by a gerundial participle. The force given by such participles as this passage shows and as Whitney points out is a force expressing “something which is to or which ought to suffer the action expressed by the root from which they come” (section 961).

This rule of interpretation coincides with the natural construction from a grammatical point of view. According to both, this text expresses nothing more than an act of expediency.

No text of Vasishtha was pressed upon our notice beyond the first four texts and Chapter XV. So far as I have been able to examine the original and the translation as contained in the Sacred Books of the East. Volume XIV, there is no other text which bears directly upon the subject.

[126] The law, therefore, as far as it can be gathered from Vasishtha, probably amounts only to an expression that the adoption of an only son is an inexpedient act and cannot—if a regard to rules of construction approved by Sanskrit writers themselves be had—be with safety said to amount to a direct prohibition. There is no text declaring such an act impossible or null and void. At the very outside, and even this I find it difficult to concede, it may be an act quod fieri non debuit.

The act is entirely omitted from the list of acts which amount to Mahapatakas, and can only by a strained interpretation be included in the list of Upapatakas.

I have gone with great care and attention through a text of Vasishtha published in the year 1805, and I have also compared the translation compiled by Dr. Buhler in 1882 after he had the good fortune to consult and examine the only three complete manuscripts of this writer which had up to that time been found. There is, as I have already said, from first to last, no allusion to the region termed “Put.” The idea of a son and the benefit to be derived from him are given in Chapter XI, vv. 41 and 42, which are as follows:—

The ancestors always rejoice at a descendant who lengthens the line, who is zealous in performing funeral sacrifices and who is rich in Gods and Brahmans. The Manes consider him their descendant who offers food at Gaya, and they grant him (blessings) just as husbandmen (produce grain) on well ploughed fields.

So remarkably free is Vasishtha from the idea of a son as being requisite and necessary for salvation, that I felt no little surprise when I came across the passage quoted by Mr. Mandlik at page 499 of his work. I at once turned to the reference in original as given by him in his footnote, and found that the words in that passage contained no allusion whatever to salvation. Fortunately Mr. Mandlik has given the text in original just above his translation, and there the words are

[127] The translation of these words are, as already pointed out, “but he should not give or take an only son, for he is for the prolongation of the ancestors.”

A reference to the foot-note shows that, when Mr. Mandlik translated, he translated not from the text of Vasishtha or even from the text he had just reproduced from the Dattaka Mimansa. He translated from a reading in the Mayukha, which substitutes, on what authority I am unable to discover, instead of .

Dr. Buhler does not even allude to such a text, and there is no doubt in my mind from its repugnance to the rest of Vasishtha that the text of the Mayukha if correctly given is an emendation or improvement on the original and not the original text itself.

I now pass on to the Dharmasastra of Yajnavalkya. In considering these I have again been confronted with the difficulty of want of leisure to study these Institutes and the commentary on them by Vijnyaneswara in the original and as a whole. I have contented myself with a careful study of the passage to which Mr. Banerji referred us (and this was from the Commentary), and to the translation of that Commentary by Colebrooke. The passage to which lie referred us is to be found in Chapter I, section xi, VV. 9 et seq. Now this passage needs careful, examination.

Verses 9 to 11 run thus—

[128] “He who is given by his mother with her husband's consent while her husband is absent or 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. So Mann declares” and then follows the 168th sloka or verse of the fifth chapter.

The commentator continues, “By distress it is intimated that the son not to be given unless there be distress. This prohibition regards the giver.”

“Similarly an only son not to be given, for there is the Smriti of Vasishtha to the effect that—“But he should not take or accept an only son.”

Mr. Colebrooke has translated this passage, and the translation has been much relied upon by the learned Judges in the rulings referred to at the beginning of this judgment. But the first point, to be noticed is that the translation contains an undoubted error. The words used by the commentator are not, from a grammatical point of view, one whit more imperative than those of Vasishtha.

Next it will be seen that the commentator bases this dictum, that an only son is not to be given, on the text of Vasishtha and I have already shown what only that text can with safety be held to mean.

Thirdly; it will be noted that the commentator, while expressing an opinion that there was a prohibition against the giving of a son when there was no distress, and a similar prohibition when there was an only son, passes over in silence any prohibition as regards the taker. Now one leading idea which runs through the Commentary of Vijnyaneswara, on Yajnavalkya is that the essence of a gift consists in its acceptance not in the giving. His doctrine is, a gift is not a gift because it is given, but it becomes a gift when it has been accepted. The whole argument leading up to this will be found in chapter I, section 1, v. 10, seq. By his omission of any text about the taker he has surely stopped short of giving any [129] sanction to the idea that the gift of an only son was an invalid act.

Fourthly; another doctrine on which the commentator insists is that property and proprietary right are temporal matters, and not, as some would hold, the result of holy institutes exclusively.

Fifthly; he gives, as we would expect, prominence to the text of Manu. In continuing the disquisition he comments upon the necessity for due observance of the requisite ceremonies, and he has already given the first place in his text to the essential necessity of distress as a condition precedent to adoption. Examining the Commentary further, it will be found that in the second chapter, section 10, he deals with exclusion from inheritance. He enumerates a number of persons who are excluded from participation in succession. The roll of persons excluded does not differ from that given by Vasishtha and Manu beyond that the terms “impotent,” “madman,” &c, are explained, and that the commentator advocates their maintenance out of the family property although subjecting them to exclusion from participation, as we have already seen. There is not one word which permits of foundation for the idea that an only son taken under the guise of adoption is to be excluded from inheritance. Such an idea would militate with the doctrines already set out, it would militate also with another doctrine of his, that property, however acquired, does not become invalid because the means by which it is acquired amounted to an infringement of restrictions. In advancing this doctrine he does not overlook an objection that might be offered that proprietary right obtained by robbery and other nefarious means would still be property. This he answers by saying that such a right is not recognised by the world and disagrees with received practice. In other words, he recognizes the right of custom as a controlling power of high authority. Other instances of this view in his work will be found in Chapter I, section 1, vv. 22 and 23, 32, &c. Whether then we consider the authorities upon which the commentator relies, viz., Manu and Vasishtha, or whether we consider the text in the light of the principles that pervade his writings-[130], the inference is irresistible that in laying down the text as he did, the commentator meant no more than to enunciate as Yajnavalkya's and his own views that the giving of an only son was an optative act, an act of expediency.

Another point which cannot be passed over in silence is the fact that he too does not import directly and in express terms into the doctrine of adoption any idea of salvation from “Put” or attainment of heaven. Before proceeding to commentators I would again draw a marked attention to the absence of this point from the texts on adoption in all the writers of this group. There is only one passage in Manu and that in the Chapter on the Domestic Life of the Commercial and Servile classes, where the idea is wedged in. To that verse I shall allude hereafter. In fact the only idea we have been confronted with when adoption is being discussed is the solitary one that an only son should not be taken in adoption because the object for which he was destined was the prolongation of the line of ancestors, an idea which probably owes its foundation to vainglory and temporary power rather than to any idea of spiritual benefit in another world. Even in the Mitakshara I have been unable to find any such idea, and I have not been referred to any text which would show that Vijnyaneswara gave it his sanction. The real and legal position of father and on up to the end of this period of Hindu Law was briefly this:— The father was the patriarch with power of sale and gift over his offspring, a power which, could not be questioned by the son: Thus Manu (Chapter VIII, sloka 416) declares, “Three persons, a wife, a son and a slave are declared by law to have no wealth exclusively their own; the wealth, which they earn is acquired for the man to whom they belong.” And a further principle was this, that a son, especially if a relation when adopted into a family, was at once made and treated as one of the family circle. (Manu, Chapter IX, sloka 169).

The text of Narada was not referred to by the other side in the courses of the argument. I will not therefore refer to it at any great length. But a consideration of his views on the subject, if they can be gathered with accuracy from the text, is important for [131] this reason, that it is upon a text of his and one of Saunaka that Nanda Pandit really rests his doctrine that the adoption of an only son is invalid.

Narada's work, as I have already said, follows by a long interval of time the work of Yajnavalkya and is supposed to have preceded that of Vijnyaneswara by an interval of some seven centuries. His works contain doctrines decidedly opposed to the teaching of Manu, and it is very improbable that a writer of such clearness, as he is, would have ventured to differ on essential points, unless he had good authority for doing so or aimed at being a reformer. That he was an author whose writings exercised great influence is evident from this one fact alone, to which Dr. Jolly testifies, that upward of half his works has been embodied in the authoritative composition of the mediaeval modern writers in the province of Sanskrit Law (R. Bk. East, XXXIII and XXI).

Narada examines at some length the doctrine of valid and invalid transactions, and the conclusion of the whole matter is, according to him, that validity of a transaction hinges upon the independence of the parties to it. This, it will be perceived, is a new doctrine entirely and is the key note to the position he takes up about the gift of a son.

The doctrine of invalid gifts is again taken up and examined by him in the fourth title of law under the head “resumption of gift.” Sixteen kinds of invalid gifts are enumerated, and under none of them can by any possibility be placed the gift in adoption of an only son. But there are two verses in the earlier part of the chapter, vv. 4 and 5, which run as follows:—

“An Anvahita deposit, a Yachita, a pledge, joint property, a deposit, a son, a wife, the whole property of one who has offspring.”

“And what has been promised to another man, these have been declared to be inalienable by one in the worst plight even.”

The natural interpretation of these verses would establish first this result, that under no circumstance whatever,—not even in distress, whatever Manu, Vasishtha, Yajnavallkya may say to the contrary-[132],—can a son form the subject of a gift. One turns naturally and at once to the Chapter on Inheritance and to that on the Duties of Husband and Wife to see how he will explain the recognition in law of an adopted son. The result is disappointing. He mentions him only once, and that is when he is repeating the list of twelve sons given by Manu.

Thus it is easy to see why Narada excludes a son from being the subject of gift. The son is not an independent person, and as independence goes to the validity or invalidity of a contract, Narada boldly enunciates the proposition that the gift of a son at any time and under any circumstance is an invalid act; he has no place for the doctrine anywhere that a son is requisite because of welfare in the spiritual world. With this writer the object and idea of a son is the continuation of lineage (see especially Chapter XII—v. 84).

We have now gathered two distinct ideas, the idea that a son is for victory over enemies and for continuing the line of ancestors, and therefore the man who has only one and gives him away in adoption commits an imprudent act. We have a second idea that of Narada that a son is a person under subjection and therefore cannot be made the subject of gift.

It is not till we reach Nanda Pandita that we come across the doe-trine that the gift of an only son is an offence which threatens both giver and taker with the extinction of lineage. The text runs thus:—

The above text may be translated as follows:—

Now of what kind is the person who is suitable to be adopted as a son. On this point Saunaka says, “The gift of a son is not in any case to be made by a man having an only son. The gift of a son is to be made with readiness by a man having many sons.” The meaning of the word Eka Putra is a man who has only one son, by him the giving of a son is not to be made. There is the Smriti of Vasishtha to the effect. “But he should not give or accept an only son.” Now from the use of the word “gift” there arises the idea that the property of another is established after the previous extinction of one's own property, and also that property in another cannot be without acceptance. Saunaka implies all this. Therefore the prohibition against acceptance also is established by this text. This also says Vasishtha. “But he should not give or take an only son.” For this he mentions a cause. “For he is for the prolongation of ancestors.” Seeing that an only son is appointed for the purpose of prolonging ancestry, loss and destruction of such ancestry must be understood (to be) in the giving of him, and this is the case of both giver and acceptor for the reason follows the (case of) both.

There is another text of the Smriti. “The father has power in the matter of treating of a son and a son's wives, but he has not [134] power over the son in the matter of sale and gift.” And there is the text of the Holy Saint. “There may be giving except a wife and son” and this refers to an only son. “In any case” means “In a time of distress.” Thus Narada says, “A deposit, a son, a wife, the whole property of one who has offspring. And what is joint property these have been declared to be inalienable by one in the worst plight even.”

This also refers to an only son according to the text of Vasishtha and Saunaka.

The authorities for this proposition are according to Nanda Pandita—Saunaka, Vasishtha and Narada. The texts of the two latter have been already considered. Nanda Pandita views them very differently the text of Vasishtha in his eyes establishes a prohibition against the gift of an only son. The text of Narada presents a difficulty, but he gets over it by an ipse dixit that Narada referred, when be wrote the text, to the case of an only son, and to no other. For this assertion of his he gives no authority of any kind.

The text of Saunaka is very emphatic. It runs thus in the Dattaka Mimansa.

But there is one immense difficulty in considering the real meaning of this text. It stands a fragment which has been presented to us entirely detached from the context, and neither this library nor, as far as I know, any private person in Allahabad, is in possession of a copy of Saunaka's text. Probably if we had the context we might find that the text was in harmony with the writings of Manu and Vasishtha. Mr. Mandlik in his book the Vyavahara Mayukha boldly maintains that this text as well as the other is purely a recommendatory one. I was not prepared to follow him, for so far as my study of Sanskrit had carried me this form of sentence did represent a strong imperative. Mr. Mandlik's knowledge of Sanskrit is however more wide and vast than any I can pretend to, and I find by reference to Whitney that the interpretation advocated [135] by Mr. Mandlik is one which that eminent grammarian and scholar would be prepared to accept. In section 999 of the grammar, he says that the gerundive used in the same construction as is adopted in this text not seldom has a purely future tense.

The authorities then on which Nanda Pandita rests his prohibition do not when examined bear him out. He is so recent a commentator that his dicta can hardly pass unchallenged on the score of antiquity.

It is, moreover, not beyond doubt that Nanda Pandita himself may not have meant to lay down anything more than that the giving and taking of an only son was a fault and therefore to be avoided. There is a vast difference between this, in itself an advance upon the older texts, and between laying down the act as one interdicted by Civil Law.

The ground for holding that Nanda Pandita was not prepared to interdict the adoption of an only son are briefly as follows:—

A more particular examination of the text of the Dattaka Mimansa shows that Nanda Pandita was in the habit of using when necessary the more positive forms of prohibition such as see section IV, v. 67, and elsewhere, a fact which affords some ground for the contention that his dicta upon do not amount to more than an enumeration of the “points,” if I may use the term, which an adopting father would seek in his adoptive son, and do not define an absolute incapacity in the giver, taker or subject even if such ideas were recognised by him. The whole argument contained in section IV is obscure and gets still more obscure as it proceeds. It is in sharp contrast to the crisp, well-arranged and well-defined dicta of Narada, and I have already pointed out the unblushing way in which the Pandit perverts Narada's arguments into a, foundation for his own proposition.

Again Nanda Pandita, in the section immediately preceding section IV, does deal with the case where the rule that a boy of a different caste should not be adopted has been transgressed. What is the result, the Pandit asks, of transgression, and his answer is not [136] that the adoption is invalid, but that such a son is to be excluded from participation in the estate; he is, however, entitled to food and raiment from the adoptive or would be adoptive father. This section III follows section II, in which the prohibition against such an adoption has been discussed. Section IV is followed by no similar question and answer.

Section V deals with the ceremonies of adoption, and concludes with a precept that where the ceremonies fail, the filial relation fails. The absence of any like precept in section IV can hardly be due to accident.

So much for internal evidence as to whether Nanda Pandita did or did not mean to interdict absolutely the adoption of an only son. That evidence is distinctly in favour of the proposition that he did not mean to interdict the act absolutely.

Now as to the authority to which the Pandit's work is entitled. Mr. Colebrooke was pleased to term the Dattaka Mimansa “an excellent treatise on adoption;” but he does not appear to have pursued to any length the enquiry how far the author was a man entitled to weight or cognizant of local custom, especially when he made additions to or offered explanations of the texts of those whom we may term the Sanskrit Fathers. Mr. Sutherland writing from Monghyr in 1819 claims for the author that certain works of his other than the Dattaka Mimansa existed in much esteem. He maintains though not without apology that the Dattaka Mimansa is also held in estimation, by whom it does not appear. The arguments he allows are often weak and superfluous, the style frequently obscure and not unrarely inaccurate. The translator adds that the work has been compiled under circumstances affording little facility for enquiry or collecting information.

Now if I am asked to choose on a point of conflict between the authority of works like those contained in the first two groups of writers and the work of a man of modern times whose pretension to authority rests mainly upon the unsupported testimony of modern times and that testimony wavering and uncertain, my choice is made without hesitation and without difficulty.

[137] The one justification for Nanda Pandita and his views, if we must accept them in the direction Mr. Banerji would advocate, is that local custom has pronounced against such an adoption and that so distinctly that even Manu himself would require a king to bow to the custom when administering law to his subjects. Is there any evidence in favour of this view?

Now there is a certain amount of material, slight it may be, but still existing in this case, for the inference that the custom of Benares is not against the adoption of an only son. If it were, we should expect to find at the very least this result that Beni Prasad and his family are or have been put out of caste or have regained their caste by penance, for they are Agarwala Banyas by whom the idea of caste and religious observance is carefully cherished. Mr. Banerji does not for a moment pretend that any such effect has followed this adoption, and this in the very town where Nanda Pandita wrote his Dattaka Mimansa and where it is, we are told on authority, held in much esteem. Now in the Punjab where custom on the question has been made the subject of judicial enquiry, the answer to the question has been that such an adoption is valid. No custom has been pointed out to or discovered by me which maintains such an alienation to be void.

Thus then after a careful examination of the text writer and commentators I find—

(1) That this Court in 1879 founded its ruling upon what would appear to be a correct and not a mistaken impression of the text of Hindu Law books.

(2) That no text writer, except if may be Nanda Pandita, gives any countenance to the view that the adoption of an only son would be to extinguish the lineage of the natural father and to deprive the ancestors of the natural son of the means of salvation.

(3) That such an adoption is not forbidden by the Hindu Law as current in these provinces.

[138] (4) I also find that;, save in Nanda Pandita, so far as these provinces are concerned, there is no real foundation for holding that the subject of adoption is inseparable from the Hindu religion. Yajnavalkya and his commentator distinctly incline to an opposite view.

Lastly I find no authority save a distorted gloss upon Narada for the idea that the father of an only son has no such absolute dominion over that son as to make him the subject of gift. The text of Narada does not apply to only sons, but to all sons alike and is in direct opposition to texts many and various to be found in all the Dharinshastras cited to us.

It will he easily seen from the above that I am satisfied that Mr. Colebrooke's translation is, as the learned Chief Justice has pointed out, in error, and the error is probably the cause why both Mr. Justice Dwarka Nath Mitter and Mr. Justice Markby were led into the opinions they formed. Mr. Justice Dwarka Nath Mitter, if he did follow Colebrooke's translation, appears to have done so without full regard to that translation as a whole. Sir Charles Sargent adopts Mr. Justice D. Mitter's view. Sir Charles Turner was no Sanskrit scholar; the Dattaka Mimansa and its translation evidently were ar, the root of his dissenting opinion in Hanuman Das v. Chirai.

I have up to the present made little mention of the doctrine that because a son delivers his father from the region called Put, therefore we must infer that adoption is inseparably bound up with the Hindu religion and the adoption of an only son must be null and void.

My silence is due to the fact that, as I have shewn, the text writers do not put this argument forward when they are dealing with adoption as a question of civil law. To them the distinction between religious law and civil law was not, I venture to think, so obscure or immaterial as some would endeavour to maintain.

Nanda Pandita, admitted to be an “obscure and not unrarely inaccurate writer,” does mingle the two ideas and gets confused in [139] consequence. But Manu keeps them distinct and apart except in his ninth chapter, and the verse there to he found is generally believed by modern critics to be a verse really suspicious or clearly interpolated.” The verse I allude to is verse 138 and its authenticity has been suspected for more than a quarter of a century. That verse does say that because a son delivers his father from the hell called Put, he was therefore called Putra. But the theory of adoption as essential to the well-being of a family was earlier than the idea of Put, or of a son as necessary for the libations to the Manes. It had become a recognized means of continuing by a fiction the line of ancestors, and the element of religion was imported into it by the Brahmins when they gained ascendancy. The foundation of adoption on the theory of salvation is, I am confident, an error. The view, which my study of Sanskrit literature leads me to think is the right view, as to the origin and growth of the law of adoption, has been well put by Mr. Sarvadhikari, an eminent Sanskrit scholar, in his Tagore Law Lectures. That writer when dealing with the subject says:—

“It is instructive to observe the feelings with which a son was regarded both in ancient and in mediaeval India. In the hymns of the Rigveda a son was the delight of his father, and his birth was earnestly desired to continue the line of his progenitors.”

“The religious element had not yet entered into the conception of a son. The family would be destroyed and the mundane existence of a long continued line of ancestors would be obliterated, if no son were born in the family. Religion, in the Vedic age, concerned itself with higher things, and not with the birth and death of a male representative of the family. The theory of a region of eternal torments which a sonless man would inhabit was not yet invented. But there is ample evidence to show that the primitive sages of India most solemnly enjoined upon all their faithful followers, the duty of begetting a son, and thus maintaining the power and the honor of the family in which they were born.”

“In the later stages of the social progress, the birth of a son was felt as an absolute necessity, not only in this world, but also in the life to come. Religion had sanctified the natural craving, and the unfortunate man who was not blessed with a son in this world was doomed to a dark and fathomless abyss of eternal horrors.”

[140] Put is not a region known to the Vedas. In the Aitareya Brahmana one Haris Chandra, who had no son, asks one Narada “What do people gain by a son whom they all wish for, as well those who reason as those who do not reason?” Here, if ever, was an opportunity to drag in the idea of salvation from Put, but the idea and the word is not even mentioned. Even the doctrine of payment of the three debts finds no place in Narada's answer.

As Brahminical views prevailed the idea of Put and adoption as bound up with adoption found places in the texts of the older writers, but that place was side by side with rites and ceremonies, not with law.

I do not and would not for a moment wish to be understood as holding that the doctrine that a son is a powerful instrument for securing future beatitude to his parents is not a doctrine current in these Provinces, or that an orthodox Hindu would accept my criticism on Manu, Chapter IX, v. 138. But even he will, I think, on reflection admit that the doctrine is a matter of religion not of the civil law, and it is not, as often supposed, a doctrine which maintains that the possession of a son is the only means of attaining salvation. The 12th Chapter of Manu and other passages show that, this is quite a mistaken view. See also Vasishtha. Chapter IX, sl. 12; and XXIX, sl. 3.

Nor must it be forgotten that Heaven and Hell are essentially foreign ideas, if they are understood to mean fixed states of happiness or torment. Supreme beatitude or Moksha is not made anywhere dependent solely upon the possession of a son. It seems to me therefore quite unnecessary to pursue this idea further.

For the reasons given above my answer would he that the adoption of an only son having taken place in fact, such adoption is not null and void under the Hindu Law, and under these circumstances the remaining two questions call for no answer.

Note.—Except in the quotation at p. 98 from the judgment of the Privy Council in Srimati Uma Deyi v. Gokoo lanand Das Mahapatra, the maxim “Quod fieri non debet factum valet” throughout the judgment of Edge, C.J, is erroneously printed as “Quod fieri non dabuit factum valet.” The substitution of “debuit” for “debet” was made by mistake, and without his Lordship's authority.