Tulshi Ram v. Behari Lal

Mahmood, J.:— The main points in the case are stated in my learned brother's order of reference to be the following:—

(1) Whether an essential condition precedent to the making of a valid adoption by a Hindu widow is an authority from her deceased husband to make it?

[334] (2) Whether a valid adoption can be made of an only son of another?

It is to these two questions that I shall presently address myself. But before doing so I wish to premise that notwithstanding the ruling of a Division Bench of the Calcutta High Court in Raj Coomar Lal v. Bissessur Dyal(11) I entertain considerable doubts as to the soundness of the view which seems to have been adopted by both the Courts below, that the literary caste of Kayesths in this part of the country, to which the parties belong, falls under the category of Sudras, as understood in the division of mankind in the Institutes of Manu, or elsewhere in authoritative texts of the Hindu law. The question is one of considerable difficulty, not only ethnologically, but also from a legal point of view, so far as the administration of the Hindu law to this important section of the population is concerned. I do not take the question to be settled by any adjudication of the Lords of the Privy Council, either in Sri Narayan Mitler v. Srec Mutty Kislien Soovdoory Dassee or in Mahashoya Shosinath Ghose v. Srimli Krishna Soondari Dasi, in both of which the cases referred to adoption by Kayesths of Lower Bengal, who may be distinguishable from the twelve castes of Kayesths in Upper India, such as the North-Western Provinces and Oudh. Nor do I think that the unreported decision of the learned Chief Justice and my brother Tyrrell in Chaudhri Hazri Lal v. Bishuu Dial (First Appeal No. 113 of 1886, decided on the 15th of June 1887), which was also an adoption case, settles the question. But I need not pursue the subject any further since, both in the Division Bench and in the argument addressed to the Full Bench on either side, I fully understood it to be conceded that this case was governed by the ordinary rules of the Hindu law of adoption, and that the nationality or caste of the parties did not affect the two main questions which my brother Straight enunciated in his order of reference which I have quoted. In this manner I shall deal with the case, and, I think, I may conveniently say here in passing that I agree with the [335] learned Judge of the lower appellate Court in holding that whatever importance may be attached to entries as to custom in the wajib-ul-arz as evidence of such custom, they are not conclusive proof, and that in any case express words are necessary to prove any such special custom as would modify the general law, and that in this case the absence of such words in the wajib-ul-arz points to the conclusion that the general Hindu law of adoption was not intended to be interfered with as to the widow's power of adoption—an interpretation fully consistent with the manner in which the Lords of the Privy Council treated the wajib-ul-arz in Rani Lekhraj Kuar v. Babu Mahpal Singh, and in Uman Parshad v. Gandharb Singh.

Now the parties to this litigation are residents of the district of Mainpuri, in which the property in dispute is situate, and it is admitted that they are governed by the Benares school of Hindu law, which is sometimes denominated as the Mitakshara school, though of course the authority of the Mitakshara is also recognized in other parts of India. I have considered it necessary to state this at the outset, because in dealing with the difficulties of law which the facts of this case have produced, constant references will have to be made to schools of Hindu law other than the Benares school.

Viewing the case thus, by far the most important question of fact upon which both the Courts below have concurred is that the deceased Shankar had never authorised his widow, Musammat Lareti to make a posthumous adoption, and I hold that this finding of fact cannot be disturbed in second appeal. And because this is so, the first question enunciated by my brother Straight in his referring order becomes the turning point of decision in this case, namely, whether, in the absence of authority by the husband, the widow of a childless Hindu, acting on her own behalf, can make a valid adoption. This very question of law arose in the case of Ganga Sahai v. Lekhraj Singh in which I had the honour of being associated with my brother Straight, who approved of my [336] judgment in that case. The question was not then decided because my learned brother and I were agreed that upon the evidence in that case the factum of the adoption was not proved, and if I mention the case now, it is principally with a view to avoid repetition of what said in that case upon points, or rather steps of reasoning, which are common to this case and the case which I have mentioned.

The exigencies of this case, however, as I have already stated, require the decision of the question; and in deciding it, so far as I am concerned, it will be most convenient for me to make constant references to the printed report of my judgment in Ganga Sahai v. Lekhraj Singh to furnish the steps of reasoning which have led me to the conclusion at which I have arrived in this case.

Perhaps the first point which I should dispose of is that pressed on behalf of the appellants to support the adoption of Tulsi by Musammat Lareti in the argument that, even if the adoption was made without permission of the widow's husband, and even in the absence of the permission or consent of the sapindas of the deceased husband, the fact that an actual adoption has been made by the widow is sufficient to validate such adoption by reason of the doctrine of factum valet as understood in the Hindu law of adoption. This was one of the questions which I had to deal with in Ganga Sahai v. Lekhraj Singh, and in summing up my conclusions I said at page 297 of the report:—

“Having so far explained how I understand the general scope of the doctrine of factum valet, I proceed to define upon 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 [337] these three capacities is wanting in this case, I shall hold the plaintiff's adoption to be altogether invalid.”

I still adhere to the views which I thus expressed, and because of such adherence it might have become with me in this case a matter of considerable difficulty to decide how far I could make it possible for me to accept the ruling of the majority of a Full Bench of this Court in Hanuman Tiwari v. Chirai where it was laid down that the doctrine of factum valet applied even to the adoption of an only son under the Hindu law. I say this because in the case now before me it is admitted that at the time of the adoption of Tulsi by Musammat Lareti, he was the only son of his natural parents, and this circumstance alone might have precluded not only the capacity of his parents to give in adoption, but also the capacity of Musammat Lareti, and even of her husband, were he alive, to receive the child in adoption.

I am, however, relieved of the necessity of considering this question, not only because there is still existing the ruling of the majority of a Full Bench of this Court in Hanuman Tiwari v. Chirai as to the validity of the adoption of an only son, but also because, according to the view which I have taken in this case, I have arrived at the conclusion that the express permission of the husband is absolutely necessary as a condition precedent to the validity of any adoption by the widow subsequent to the death of her husband.

Now, the fundamental reasons upon which the Hindu system of jurisprudence recognizes adoption or affiliation to the extent that it does, were stated by me in Ganga Sahai v. Lekhraj Singh, and at page 300 of the report I stated two texts which form the foundation of the right of adoption itself. I said that one of the two texts was from Manu (chapter IX, section 168):—

“He whom his father or mother, with her husband's consent, gives to another as his son, provided that the donee has no issue, if the boy be of the same class and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water.” [338] The other text is from Vasistha (3 Dig., page 242), which is fuller than the preceding one:—

“A son formed of seminal fluids and of blood proceeds from his father and mother as an effect from its cause. Both parents have power 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.”

The supreme authority of both these texts is universally acknowledged in the Hindu law of adoption, and I should have thought that the words “with her husband's consent” in the text of Manu, and the clearer words “nor let a woman give or accept a son unless with the assent of her lord,” which occur in the text of Vasistha, would leave no room for doubt that the consent or permission of the husband was an indispensable condition to the validity of an adoption by a wife or a widow. But such does not seem to be the case, as is apparent from a note to verse 9, chapter I, section II of the Mitakshara by the celebrated Colebrooke (Stokes' Hindu Law Books, page 415). The note says:—

“In regard to a widow's power of adopting a son, there is much diversity of opinions. Vachespati Misra, who is followed by the Mithila school, maintains that neither a woman nor a Sudra can adopt a dattaka or given son, because the prescribed ceremony includes a sacrifice, which they are incapable of performing. This difficulty may be obviated by admitting a substitute for the performance of that ceremony, and accordingly adoption by a woman, under an authority from her husband, is allowed by writers of the other schools of law. Nanda Pandita, however, in his treatise on adoption, restricts this to the case of a woman whose husband is living, since a widow cannot, he observes, have her husband's sanction to the acceptance of a son. On the other hand, Ballambhatta contends that a woman's right of adopting as well as of giving a son, is common to the widow and to the wife. This likewise is the opinion of the author of the Vyavahara-mayukha; but while he admits that a widow may adopt a son without her husband's [339] previous authority, he requires that she should have the express sanction of his kindred. Writers of the Gaura school, on the contrary, insist on a formal permission from the husband declared in his lifetime.”

Such being the divergencies of opinion among the text-writers of the Hindu law themselves, I shall, before referring to the case-law upon the subject, deal first with the Hindu law texts themselves, and in doing so I will, except for purposes of analogy, confine myself to the exact question which arises in this case, namely, the capacity of the widow to take in adoption (as distinguished from her capacity to give in adoption), for here there is no question that the natural parents of the adopted Tulsi had capacity to give him, barring such objections as might arise in consequence of his being an only son—an objection which I have already disposed of with reference to the Full Bench ruling of this Court in Hanuman Tiwari v. Chirai.

The question being thus limited to the capacity of the widow to take in adoption without the permission of her husband, the most important authority relied upon by the learned Pandit Ajudhia Nath is the Viramitradaya of Mitra Misra—a commentary on the Mitakshara, undertaken apparently with a deliberate intention to uphold the authority of the Mitakshara by answering the objections which were raised and enunciated by the conflicting school of inheritance as represented by the Dayabhaga. The author referring to the text of Vasistha, “let not a woman give or accept a son unless with the assent of her husband,” which I have already quoted, goes on to say in a somewhat polemical spirit:—

“Some say that the adoption of a son by a woman without the assent of her husband being prohibited in this text, the son taken by a widow whose husband died without giving authority, does not become an adopted son. This is not tenable, since a sonless person has no access to heaven, and the procreation of a son is ordained to be necessary. Therefore the permission which he was bound under the Shastras togive is not to be considered as wanting [340] in such a case. Nor can it be said that thus the portion, namely, ‘unless with the assent of her husband’ would be useless, inasmuch as there is no case to be excluded, and as the authority which a person is bound under the Shastras to give is in all cases necessary (and so assumed as given). Because the prohibition is levelled against a woman who wishes to adopt a son for her own sake when her husband, who is desirous of having maksha or freedom from the necessity of repeated deaths and births, or who has a son by another wife, cannot possibly give an authority to adopt……………… But when the husband is dead the assent of those only is necessary on whom she is dependent. In this view the object of the prohibition becomes reasonable. Therefore, although the husband be deceased without giving permission to adopt, still an adoption by the widow is not invalid.” (Gopal Chandra Sarkar's translation of the Viramitradaya, pp. 115-16).

Beyond verbal difference the same is substantially the effect of the translation of the passage made by Mr. Mandlik in his commentary on the Mayukha (at pp. 463-64) in his work on Hindu law. I have cited this passage first, as it covers the whole ground of the argument addressed to us by Pandit Ajudhia Nath on behalf of the appellant, and also because the Viramitradaya is relied upon by the learned Pandit as possessing quite as high an authority, if not greater than the Dattaka Mimansa of Nanda Pandit (Stokes Hindu Law Books, page 531), in the Benares school of Hindu law. There can be no doubt that the passage cited is in direct conflict with the rule laid down by Nanda Pandit in his Dattaka Mimansa, to which I shall refer later on; but meanwhile it is more than interesting to ascertain the exact authority of the Viramitradaya, on which so much emphasis has been laid on behalf of the appellants. The origin of the book is well described by Shama Charan Sirkar in his Viyavastha Chandrika, Vol. I, p. 17 of his preface, in afoot-note. The learned author says:—

“The Viramitradaya was composed by Mitra Misra the direction of Raja Vira-Sinha, whence the book is styled Viramitradaya. The age of this work appears, to be less than four hundred years [341] as Raghunandana, the author of the Smriti-tattwa, who flourished in Nudea about four hundred years ago, has been cited therein. The object of Mitra Misra's writing this work appears to have been with a view to re-establish or confirm the doctrines of the Mitakshara or of the Benares school, many of which were refuted by Jimuta-Vahana, who was supported by Raghunandana and the other writers of the Bengal school; but Mitra Misra, reasoning on the arguments of Jimuta-Vahana and the rest with great accuracy, has generally refuted their doctrines and confirmed those of his master, Vijvaneshwara. Viramitradaya is the work of a great logician, and may be regarded as a complete Digest of the Dharmashastra of the Benares school, in which the author has generally expounded the doubtful passages, and supplied the deficiencies of the Mitakshara, and expressed what was left therein to implication.”

That the Viramitradaya is an authority in the Benares school cannot be doubted. In The Collector of Madura v. Moottoo Ramalinga Sathupathy, their Lordships of the Privy Council refer to the work (vide p. 438) as “a treatise of special authority at Benares,” and in Giridhari Lal Roy v. The Bengal Government, they more specifically say that “their Lordships have no doubt that the Viramitradaya, which by Mr. Colebrooke and others is stated to be a treatise of high authority at Benares, is properly receivable as an exposition of what may have been left doubtful by the Mitakshara, and declaratory of the law of the Benares school,”—a dictum in keeping with the importance which their Lordships attached to the book in Muni Ram Kohta v. Kerrij Kolitany.

The Viramitradaya must therefore be regarded as a work of high authority in the Benares school of Hindu law but it is equally certain that the Dattaka Mimansa of Nanda Pandit is also a very high authority in that school, especially upon questions of adoption, which it treats more comprehensively than any other work of that school of law. The authoritativeness of the book, so far as the Benares school is concerned, was fully recognized by the [342] Lords of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathy, and I dwelt at some length on the subject in Ganga Sahai v. Lekhraj Singh.

The observations which I then made with reference to the exact authoritativeness of the book have been relied upon on behalf of the appellant in this case for the contention that the work is not one of high authority; but I think it is enough to say that there is nothing in my judgment in that case to shake the authority of the work as a book of reference on the Hindu law of adoption, and that if I declined to accept the interpretation of Nanda Pandit in his Dattaka Mimansa, on the particular point then before me, it was mainly because I held that the passage of the Kalikapurana, upon which his view of the law was based as to the limit of age for adoption, was in itself not shown to be a genuine text. I may have to refer to this subject again; but meanwhile, as a counter-poise to the text of the Viramitradaya which I have quoted, it will be convenient to quote the Dattaka Mimansa of Nanda Pandit (section I, verses 15, 18), Stokes' Hindu law Books, pp. 534-35, where referring to the text that adoption may be made “by a man destitute of son,” the author's commentary is—

“From the masculine gender being here used, it follows that a woman is incompetent (to adopt). Accordingly Vasistha ordains: let not a woman either give or receive a son in adoption unless with the assent of her husband. From this the incompetency of the widow is deduced, since the assent of her husband is impossible. Nor should it be argued that the assent of the husband is requisite for a woman whose husband is living because she is subject to control, but not so the widow, for mention being made of women in general, dependency on control is not the cause and (were it) her subjection to the control of kinsmen exists as shown in the following text:—‘On default of these the kinsmen, &c.’ If it is contended, then, that she may adopt a son with the assent of the kinsmen even, it is wrong, for the term ‘husband’ would become indefinite, and the purpose would not be attained. Now the purpose of [343] the husband's sanction is that the filiation as son of the husband may be complete, even by means of an adoption made by the wife.”

There can be no doubt that the effect of this passage is to show that, according to the Dattaka Mimansa, a widow, without the previous assent of her husband, has no authority to adopt a son to him—a rule which, as I have already said, is directly opposed to the doctrine of the Viramitradaya.

But these are not the only original authorities which have been cited on either side, and much reliance has been placed upon works belonging to other subdivisions of the Mitakshara law, and there can be no doubt that they may be resorted to for help in determining doubtful questions arising out of the doctrines of the Mitakshara itself.

In dealing with this class of authorities, perhaps the best course will be to take those which were cited on behalf of the appellant, and then to cite those relied upon on behalf of the respondent, before considering what resulting effect they may have upon this case.

Pandit Ajudhia Nath, on behalf of the appellant, introduces these texts by reading a passage from Mr. Mandlik's Hindu Law, pages 463-65, where that learned author has quoted the original texts and translated them. He says:—

“What the wife may not do, the widow can do; for from the very necessity of the case, after the husband's death, the widow requires no such power from her husband. A text of Vasistha,—a female should not give or receive a son except by permission of the husband, which apparently lends colour to the opposite view,—has been so construed by Gowda writers that according to their interpretation a widow can under no circumstances make an adoption except with the express anumati (permission) of her husband. This, however, is not correct. The text applies to the wife, and not to the widow; and so it has been construed by the Nibandhakaras and other writers who are followed on this side of India. Thus Kamalakara in the Nirnayasindhu, after quoting the above text of [344] Vasistha, observes:—This (text applies) where the husband is living, otherwise there will be a contradiction (between this text and) the text of Vatsa and Vyasa (to the effect that) be is to be known as a given son who is given by his mother or father. Gift here is illustrative of acceptance.”

Mr. Mandlik then cites the passage from the Viramitradaya which I have already quoted, and he then, referring to that passage as to the widow's power of adoption without her husband's permission, goes on to say:—

Anantadeva in the Samskara-kausluvha goes still further. He says:—

“In reality this precept (viz., the text of Vasistha, which says that a woman cannot give or receive a son without the command of her husband), should be understood by the intelligent not as a prohibition, but as intended to require a command (of some one) for adoption in the case of a woman who has had no permission from her husband; inasmuch as there can be no prohibition of what has been commanded (as the adoption of a son is), owing to the failure to adopt being declared sinful by the text, there is no higher world for a sonless man, &c; and inasmuch a gain as (treating the precept) as a paryudasa (a negative proposition) would imply a lakshna (metaphorical interpretation”). (Mandlik, page 465).

The other text on which Pandit Ajudhia Nath relies is a passage from the Dattakadarpana, which Doctor Jolly has translated at pages 304-5 of his Tagore Law Lectures for 1883. The extract is the following:—

“The adoption of a substitute for a son should be undertaken by females as well as by males. If it be objected that the incapacity of women to give or receive a son in adoption is shown by the text of Vasistha ‘Let a woman neither give nor receive a son’ (the reply is)— No. The incapacity of women to give or receive a son might be twofold—owing to their incapacity to recite the mantras customary on the gift or acceptance of an adoptive son, or owing to the want of the husband's consent. The first reason is not to the purpose [345] because a woman, after having merely declared her intention to adopt, might cause the homa and all the other ceremonies to be performed by a spiritual guide. Where the person to be adopted is a closely related sapinda or sagotra there is no impropriety of any sort, because it is ruled that the homa and the other ceremonies may be dispensed with in that case……Nor is the second reason correct, because Vasistha recognises a right to adopt in women as well (as in men) as he says— ‘without the husband's permission.’ For Vasistha does not speak of that incapacity of a woman which is caused by her incapacity to recite mantras, but of that incapacity only which is connected with the want of the husband's consent……. In accordance with the text ‘the father protects her during infancy; the husband protects her when she is grown up; the son protects her in her old age; a woman is never fit to be independent;’ women whose husbands are living have power to give or take a son in adoption, not independently, however, but with the sanction of their husbands only. Widows, on the other hand, who are destitute of the three, beginning with the son (i.e, son, husband, father), possess an entirely uncontrolled and independent power of giving and taking (in adoption). Only the widow's right of adoption must be held to be confined to the widow of one divided in estate (from his brothers or other co-parceners).”

These texts are in accord with the doctrine of the Mayukha (chapter IV, section 5, verse 17, Stokes' Hindu Law Books, p. 63), where it says:—

“Therefore, if there must be an order from the husband, it is for a married woman only, as above shown; but for a widow, even without it (adoption) may be made with the permission of her father, or, on failure of him, of the relations nyati under this precept: ‘Let a female be taken care of by her father while a child; by her husband when married; and by her sons in her old age. If none of these exist, let her other relations (nyati) take care of her. A woman is never fit for independence.’ This has been declared by Yajnavalkya only with reference to difference of [346] age and the circumstances of a woman being under the power of her husband. In case of his being dead, or (unable) from old age or other (disqualification), or from helplessness, then (she is) indeed under the power of her sons or other relatives.”

There is no doubt that these texts support the contention on behalf of the appellant, especially as they all bear upon the point of distinction between the adoptive powers of a widow as distinguished from the wife, that is to say, the powers of a woman whose husband is living.

On the other hand, Pandit Bishambhar Nath on behalf of the respondent in supporting the authority of the Dattaka Mimansa of Nanda Pandit in the Benares school as to the indispensability of the husband's permission for the validity of a posthumous adoption by his widow, cites two texts which have been translated by Dr. Jolly in his work on Hindu law (Tagore Law Lectures for 1883, p. 303). The first of these texts is from the Dattaka Nirnaya:—

“Giving or taking a son in adoption is illegal in a woman unless her husband gives his consent to it.”

The other text is from the Dattaka Tilaka:—

“By ‘one sonless,’ i.e, by a male destitute of the likeness of a son. Not by a woman, because it may neither give nor receive (a son in adoption, as stated by Vasistha: “Man formed of virile seed and uterine blood proceeds from his mother and his father (as an effect from its cause). (Therefore) both parents have power to give, to sell, and to abandon him. Let him not give or receive (in adoption) an only son. For (he must remain) to continue the line of the ancestors. Let a woman neither give nor receive a son except with her husband's permission.’ The right of a woman to adopt with her husband's permission is secondary only;……and it must not be said: The mother also has full power to give or receive a son, on failure of the father, because the text ‘both parents have power’ contains the dvandva (copulative) compound (matapitavan, ‘both parents’), and because it is said ‘whom his mother or father give,’&c, (Manu, IX, 168), and because each of the two component [347] parts of a dvandva compound is significant by itself. This objection cannot be maintained in the face of the rule that the husband's permission is required. Again, if it be said that here also the equality of rights between both parents is established, the prohibitive rule ‘Let a woman neither give nor receive a son,’ would be unmeaning, the female sex being in every way dependent on the male sex, because they must never be independent. And thus says Harita,—‘In regard to a wife, in regard to wealth, and especially in regard to the sacred law, a woman does not deserve independence, neither in taking nor in abandoning.’ Narada:— Transactions made by woman are null and void, except during distress, especially if they relate to the gift, mortgaging or sale of a house or field, such transactions acquire validity in that case only if the husband approves of them, or, on failure of the husband, the son, or on failure of both husband and son, the king.’ The term ‘during distress’ is used (in the text of Narada) in order to indicate that a gift or other transaction made by a woman for the purpose of obviating distress, is valid. Therefore a woman even may give in adoption and completely relinquish her dominion over a son in times of distress. But she may not receive (in adoption) because the dvandva compound, &c., is used with reference to the gift only of a son. Therefore both parents have power to give, sell, or abandon from passion or some other motive, their son, who is formed of virile seed and, uterine blood, and has proceeded from them as an effect from its cause. But they are not (invested with equal power) as regards the acceptance (of a son). Although, therefore, a son owes his existence to his mother, she cannot be permitted to adopt a son independently (of her husband), because she is not allowed to give a son in adoption during the lifetime of her husband. Therefore, supposing even a man were anxious be give in adoption his only sod, the representative of his race, a woman is not allowed to receive him in adoption.”

That these various texts of the Hindu Law are in much conflict with each other as to the necessity of the husband's permission for the validity of an adoption by a woman, whether as the wife of a [348] living husband or as a widow, cannot be doubted; and the difficulties created by this conflict are considerably enhanced by the circumstance that all the texts quoted belong to the Mitakshara school of Hindu law, though their comparative authority is received with varying weight in various subdivisions of the Mitakshara school of the Hindu law itself.

Their Lordships of Privy Council had to deal with a similar difficulty in the case of The Collector of Madura v. Moottoo Ramalinga Sathupathy where, after stating that “the remoter sources of the Hindu law are common, to all the different schools,” and describing the process whereby these various schools adopted divergent opinions, went on to say:—

“This very point of the widow's right to adopt is an instance of the process in question. All the schools accept as authoritative the text of Vasishta, which says: ‘—Nor let a woman give or accept a son unless with the assent of her lord.’ But the Mithila school apparently takes this to mean that the assent of the husband must be given at the time of the adoption; and, therefore, that a widow cannot receive a son in adoption according to the Dattaka form at all. The Bengal school interprets the text as requiring an express permission given by the husband in his lifetime, but capable of taking effect after his death, whilst the Mayukha and Koustribha treatises which govern the Mahratta school explain the text away by saying that it applies only to an adoption made in the husband's lifetime, and is not to be taken to restrict the widow's power to do that which the general law prescribes as beneficial to her husband's soul. Thus upon a careful review of all these writers, it appears that the difference relates rather to what shall be taken to constitute, in cases of necessity, evidence of authority from the husband, than to the authority to adopt being independent of the husband.”

There Lordships then go on to say:—

“The duty therefore of a European Judge, who is under the obligation to administer Hindu law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, [349] as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.”

It is in the light of these observations of their Lordships that I shall deal with the exact question now before us, viz., whether a widow can validly adopt without the previous permission of her husband who is no longer alive. I shall consider the question in accordance with the Benares school of Hindu law, which admittedly governs this case, but before doing so I wish to repeat what I have already said, that in the present case there is no question as to the widow's power of giving in adoption, but the question is limited to her power of taking or receiving in adoption.

This being so, the authority of Manu, which is supreme in the Benares school, is the first to be referred to. I have already quoted verse 168 of chapter IX of that holy Sage's institutes of law as conferring authority upon the parents to give a son in adoption, and in that verse the name of the mother of the given boy is expressly mentioned, though even there the consent of the husband is indicated, giving rise to those divergencies of opinion to which reference has already been made by me. So much as to the authority to give in that sacred institute, but as to the authority to receive, the important verse is the next, namely, verse No. 169, which runs as follows:—

“He is considered as a son made or adopted whom a man takes as his own son, the boy being equal in class, endued with filial virtues, acquainted with the merit of performing obsequies to his adopter, and with the sin of omitting them.”

Now, comparing this passage with the preceding verse, it is remarkable that whilst as to the power of giving the mother of the boy given is mentioned, in the later verse the wife of the taker, in adoption is not mentioned, and the text shows that the taking in adoption is entirely dependent upon the wish of the man, i.e, the adoptive father.

[350] I have no desire to apply to the interpretation of such ancient texts as verses 168 and 169, chapter IX of Manu's Institutes the comparatively modern rule of interpretation expressio unius exclusio alterius; but at the same time I cannot help feeling it to be very significant that whilst in dealing with the power to give the name of the mother of the boy to be given in adoption is mentioned, the text of the following section, which deals with the power of taking a boy in adoption, is totally silent as to the wife of the man who adopts. The significance of such silence is all the more increased by the fact that the Mitakshara itself seems apparently to draw the distinction between giving and receiving so far as the part of the wife is concerned, and is equally silent as to the power of a woman in receiving a child in adoption as distinguished from the part which she may have to take in the transaction of giving her son in adoption. Section XI, chapter I, verse 1 of the Mitakshara, in describing the twelve kinds of son's recognised by the Hindu law, goes on to say:—

“He whom his father or his mother gives for adoption, shall be considered as a son given. A son bought is one who was sold by his father and mother. A son made is one adopted by man himself.”

Now, in this passage again, which really contains definitions of the various kinds of sons, the wife of the giver is mentioned, but not the wife of the taker in adoption; and the silence is as significant as that in the text of Manu which I have cited. Superadding to the significance of such silence both in Manu and in the Mitakshara as to the power or authority of the adoptive mother, is the text of Vasistha, which is a smriti, and as such of the highest authority, in the Benares school, as also in the other schools of the Hindu law. I have already quoted the text more than once, but I think its importance deserves repetition for the purposes of this case, for it lays down in clear language:—

“Let a woman neither give nor receive a son except with her husband's permission.” (Sacred Books of the East, edited by Max Muller, vol. XIV, p. 75.)

[351] This is the translation by Dr. G. Bubler, but since Pandit Ajudhia Nath for the appellant, advocated the greater accuracy of Mr. Mandlik's translation of the original Sanskrit, I will quote that also. It is to be found in a foot-note at page 463 of Mr. Mandlik's work on Hindu law, and runs as follows:—

“A female should not give or receive a son except by permission of the husband.”

I confess I do not see any substantial difference between the two translations; but Pandit Ajudia Nath, for the appellant, insisted upon Mr. Mandlik's translation being preferred for the sake of the contention that the injunction was only directory, and as such capable of being covered by the doctrine of factum valet, so far as any want of power in a widow to adopt without her husband's permission might give rise to objection.

Now, if I were to adopt the ordinary rules of interpretation as understood by us in their application to modern law, I should have been inclined to hold that the presence of negative words in either of these two translations of the text of Vasistha amount to a specific prohibition rendering that illegal which is done in contravention of such prohibition.

But since the texts belong to an ancient system of law, it is necessary to refer to the authoritative texts of that law itself to interpret the exact meaning of those prohibitions, and in this connection perhaps the best way would be to enunciate as steps of reasoning the following joints for consideration:—

(1) Whether, during the lifetime of the husband and the wife, their powers of adoption stand on an equal footing.

(2) Whether, after the death of the wife, the widower can adopt a son irrespective of any permission of his deceased wife.

(3) Whether, after the death of the husband, the widow can lake in adoption without the previous consent of her hubsand.

Now, the consideration of these questions will lead me to the consideration of some of the doctrines of the Hindu law; but in [352] doing so, I shall confine myself to the method of decision prescribed by the Lords of the Privy Council in the passage which I have already quoted from their judgment in The Collector of Madura v. Moottoo Ramatinga Sathupathy at p. 436 of the report.

And upon the first of these points, I cannot do better than adopt the language of Mr. Mayne's Hindu Law, in section 99 of his work, where he says:—

“As an adoption is made solely to the husband and for his benefit, he is competent to effect it without his wife's assent, and notwithstanding her dissent [Dattaka Mimansa, i. s. 22; Rungama v. Atchama]. For the same reason she can adopt to no one but her husband. An adoption made to herself, except where the Kritrima form is allowed, would be wholly invalid: [Chaudhri Pudum v. Koer Oodey]. Adoptions by women of the dancing girl caste rest on a different footing (see post, s. 108). Nor can she ever adopt to her husband during his lifetime, except with his assent (Dattaka Mimansa, i. s. 27).”

Upon the second of these points also, I think the state of the law is well put by Mr. Mayne in section 96 of his work on Hindu Law, and I adopt his views when be says:—

“It has been suggested that an adoption by a bachelor, or a widower, would be invalid, either on the ground that such a person was not in the order of grihastha (householder or married man) or that the right of adoption was only allowed where the legitimate mode of procreation had failed. But it may now be taken as settled that an adoption in either of the above cases would be valid Suth. Syn. 664, 671; 3 Dig. 252 : 1 W. McN. 66 : 2 W. McN. 175; Gunnappa v. Sankappa, Bom. Sel. Rep. 202; Nagappa v. Subba Sastry, 2 Mad. H.C 367; Chandrasekharudu v. Bramhanna, 4 Mad. H.C 270.”

The reasons for the conclusion at which Mr. Mayne has arrived are stated in the rest of the section of the work from which I [353] have quoted, and they leave no doubt in my mind that the existence or non-existence of the wife, whether in the case of a bachelor or a widower, is wholly unimportant for the validity of Hindu adoption by a man. And it would be prolonging the discussion of this matter if I were to enter upon proving the proposition that in no case, except perhaps that of dancing-girls (vide s. 180, Mayne's Hindu Law) could an adoption be validly made by an unmarried woman. There is indeed no contention that such a thing could be done; and if I have mentioned it, it is with the object of bringing forth a somewhat epigrammatic form of the undoubted proposition of the Hindu law, that whilst in the case of a man the fact of his having never married or never intending to marry is no bar to his power of adoption, in the case of an unmarried woman the simple fact of her being without a lawful husband debars her absolutely from exercising any such right as that of adoption. The power of adopting as I would say, if I were referring to modern law, is a pure creation of “the Statute,” like the power to appeal from a judgment; but it is not from this method of interpretation that I have any desire to form my opinion upon the question now before me. Yet, apart from any proclivities which I may have as an English lawyer in favour of the recognised rules of interpretation, I cannot help feeling in connection with matters relating to the Hindu law (any more than in matters relating to the Muhammadan law) that the difference between the powers of adoption in the case of a man and that of a woman is most significant: that this is so, is amply apparent from the authorities which I have already cited; and by analogy of reasoning it becomes all the more significant when it is borne in mind that the, adoption of a female is not recognized by the Hindu law, and that in one essential at least of the validity of adoption, namely, the proper subject for the exercise of the right, there is no contention that the adopted child must be a male and not a female.

I have digressed into this analogical reasoning in order to deal with the views expressed by Mr. Mandlik in his work on Hindu Law, at pages 466 and 467. The learned author somewhat severely [354] criticises the recognized European authorities on Hindu, law by saying:—

“It appears to me that some confusion has been created by very loose and indefinite writing regarding the duties of a son and the performance of Sraddhas. &c., by the adopted son. Sir T. Strange says:—“The better reason therefore perhaps is that the necessity of a son to celebrate the funeral rite regards the man, rather than the woman, who depends less for redemption upon such reasons; so that whatever a woman, duly authorized, adopts, it is on her husband's account, and for his sake, not her own. (Elements of Hindu Law, vol. I. p. 79, 3rd ed.) Mr. Justice Strange goes further and says:—‘Unmarried males of whatsoever age, and females, whether unmarried or married, are not in danger of put. No adoption on their account is hence necessary, neither would such adoption be valid, (Manual of Hindu Law, 2nd ed., p. 18).”

The learned author then goes on to state that the views expressed by Sir T. Strange and Mr. Justice Strange, and commented on by Messrs Ellis and Sutherland, were equally unsupported by authority, and that (to use the learned author's own words), “all this is a very unsatisfactory mode of stating the Dharmashastra,” and he ends a whole paragraph by saying:—“This confusion of the mother's position and her necessity as to Sraddha has, it appears to me, led to a complete misunderstanding of the whole subject of adoption by females.”

The learned author, in thus criticising the conclusions of eminent English Hindu lawyers, states the names of certain rituals prescribed by the Hindu law as to obsequies of the deceased, but he cites no authorities for his propositions on that head, so far as they tend to show that either the necessity or the power of adoption stands upon an equal footing in the case of a man and a woman. Nor is there any attempt made by the learned author (and I say this with great respect) to explain why throughout the whole Hindu jurisprudence, whether with reference to personal liberty or personal rights, whether with reference to inheritance or succession, whether with reference to powers of alienation of property or other rights which [355] need not be detailed, the legal powers of the females are not on the same footing as those of the males. There are of course explanations to be found in the sacred texts of the Hindu law itself, which have been carefully investigated by eminent European investigators of the Hindu law to account for the line of thought that under that system a very marked distinction is drawn between the legal rights of a man and those of a woman; and also that distinction cannot be lost sight of in the case of the right of adoption which would not exist but for express authority of the Hindu texts themselves in that behalf. Any attempt made by modern writers to remove or diminish the efficacy or force of that distinction must necessarily require disturbance or, at any rate, mitigation of the rigour of the Hindu law; and I do not think, as a Judge sitting in this Court, it is within my province to do so.

I will therefore quote a passage from Mr. Mandlik himself, not only because it goes the whole length of supporting the appellants' argument as to the adoptive powers of a woman under the Hindu law, but also because it will be introductory to my dealing with the last but most important question in this case.

Mr. Mandlik, after criticising the English authorities on Hindu law as I have stated, goes on to say:—

“To sum up a Sraddha produces equal benefit to both the father and the mother. When there is a son, he must perform it for both, and does so perform it, as all the Sraddha works and our current practice show. If there be no son, a man can follow several ways to get his own salvation, or may adopt a son both for getting his Sraddha performed, and for the perpetuation of his name. The same is the case with the man's wife. During his lifetime her identity is sunk in her husband's. After his death she may follow the several ways above indicated for her salvation as well as his, or both follow those ways and also adopt a son who will be her own as well as her husband's son.”

These, then, are the views of Mr. Mandlik, and they deserve respectful consideration. The original Hindu authorities upon which those views rest have already been quoted or referred to by [356] me in this judgment: and I may say that the authority of Mr. Mandlik himself as a Hindu lawyer would have been of much greater weight and effect with me, so far as this point is concerned, had I found it possible for me to escape the suspicion that, in desiring to raise the adoptive powers of a woman and her spiritual benefits by dint of such adoption, the learned author was more or less influenced by the modern enlightenment of Europe as to the relative ‘position of manhood and womanhood.’ But I am here to administer not what the Hindu law might be or ought to be, but what the law is, on the old maxim which I hold to be binding upon me even in this class of cases.

What then are the behests of the Hindu law as to the relative position of man and woman in regard to the exercise of legal rights, be they of a temporal or spiritual character? So far as her position in this world, as distinguished from the spiritual world in the future, is concerned, the sacred text of Manu in verse 148, chapter V, is conclusive, and Sir William Jones has thus translated it:—

“In childhood must a female be dependent on her father; in youth, on her husband; her lord being dead, on her son; if she have no sons, on the near kinsmen of her husband; if he left no kinsmen, on those of her father; if she home no paternal kinsmen, on the sovereign: a woman must never seek independence.”

I have quoted this text in extenso, not only because it leaves no doubt that Hindu jurisprudence recognises no equality between man and woman for temporal benefits, but also because the text itself is in no small measure referred to in the authoritative passages which I have quoted, and relied upon as an authority for the proposition that even for such spiritual benefits as may arise out of adoption, the position of woman is far below that of a man, and in no case is it independent of the consent of males.

Perhaps the best way in which I can explain what I have just said is to state the questions which I have put to myself in considering this case, and I will state them in an interrogative form, because I have been unable to find any answer to them in Mr. [337] Mandlik's well known work on Hindu law, or in any other authoritative treatise on the subject.

First.—It being admitted on all hands that the solitary foundation of the Hindu right of adoption is the spiritual benefit of the adopter, why is that right available to a bachelor and not to a maid, that is, to an unmarried man and not to an unmarried woman?

Secondly.—In the case of a married couple, why is adoption available to the husband even against the wishes of his living wife, whilst the living wife (even according to Mr. Mandlik) cannot adopt to her husband or even to herself against his wishes?

Thirdly.—Why is a widower entitled to adopt without any reference to the wishes of his deceased wife?

The answer to these questions is of course to be found in the general principles upon which the whole system of Hindu jurisprudence proceeds with reference to the temporal and spiritual position and benefits accorded by that ancient system to womanhood: and I think I may safely affirm that system nowhere contemplates the spiritual salvation of a woman irrespective of her being married; that is to say irrespective of the man to whom she is married, and who is throughout, the sacred text denominated, as her lord and master, furnishing foundation even for such extreme rites as those of suttee. “Reprehensible is the father who gives not his daughter in marriage at the proper time.” “Manu, Chap. IX, verse 4. “If a damsel, yet unmarried, arrive at puberty in the house of her father, he is guilty of infanticide by detaining her at a time when she might have been a mother, and the damsel is held degraded to the servile class.” (Text of Katyayana, Colebrook's Digest of Hindu Law, 3rd edition, vol. II, Page 297). “The nuptial ceremony is considered as the complete institution of woman, ordained for them in the Veda, together with reverence to their husband, dwelling first in their father's family, the business of the house, and attention to sacred fire.” (Manu, chap. II, verse 67). “When the husband has performed the nuptial rites with texts from the Veda, he gives bliss continually to his wife here below, both in season and out of season; and he will give her happiness [358] in the next world,” (Manu, chap. V, verse 153). “No sacrifice is allowed to woman apart from their husbands, no religious rite, no fasting, as far only as a wife honours her lord, so far she is exalted in heaven.” (Manu, chap. V, verse 155.)

The last of these texts is of especial importance for the purposes of this case, because adoption is not a temporal transaction but a sacrament or religious rite under the Hindu law, which cannot be performed by a woman irrespective of a husband, for without him she has no spiritual benefits to expect.

The broad outcome of what I have said may be thus summarized:—

(1) A maid cannot adopt because she has no husband; but bachelor may adopt though he has no wife.

(2) A husband may adopt though his wife doe not consent; but a wife cannot adopt if her husband does not give his permission.

(3) A widower may adopt without permission from his deceased wife. So far there is no controversy as to the doctrines of Hindu law of adoption in this part of the country, and the question then remains:—Why should not the same difference between the adoptive powers of a man and those of a woman be maintained in the case of a widow?

The argument of Pandit Ajudhia, Nath aims at placing the widow on the same footing as the widower. The learned pleader, in supporting his case on this point, bifurcated his arguments by contending, in the first place, that if a widower can validly adopt without the permission of his deceased wife, there is no reason why the widow should not make a valid adoption without the permission of her deceased husband. In the second place, the learned pleader argued that even if the deceased husband's permission is necessary, it must be taken to be necessarily implied, because an adoption by the widow would be conducive to his spiritual benefits.

Now, so far as the first part of this argument is concerned, I think I have already quoted enough original texts to show the [359] enormous conflict that exists upon the subject of the widow's power of arlpotion: but since the learned Pandit on behalf of the appellant has asked us to regard the question as res integra and to employ our own judicial reasoning for deducing our conclusions from the principles of the Hindu law of adoption in general, I desire, at the risk of prolixity, to emphasize the extent and complications of such conflict of authority in the various schools of the Hindu law. In doing so I cannot do better than quote a passage from Mr. Mayne's work on Hindu law. The learned author says:—

“Her capacity to adopt to him after his death, whether with or without his assent, is a point which has given rise to four different opinions, each of which is settled to be law in the province where it prevails. All the schools accept as authoritative the text of Vasistha, which says:— ‘Nor let a woman give, or accept a son unless with the assent of her lord.’ But the Mithila school apparently takes this to mean that the assent of the husband must be given at the time of the adoption, and therefore that a widow cannot receive a son in adoption, according to the Dattaka form, at all—(Dattaka Mimansa, 1, s. 16; Vivada Chiutamani, 74; 1 W. McN. 95, 100; Jai Ram v. Musan Dhami, 5 S.D 3). The Bengal school interprets the text as requiring an express permission given by the husband in his lifetime, but capable of taking effect after his death (1 W. McN. 91, 100 : 2 W. McN. 175, 182, 183; Janki Dibch v. Suda Sheo, 1 S.D 197 (262); Mt. Tara Munee v. Dev Narayun, 3 S.D 387 (516); whilst the Mayukha Koustubha and other treatises which govern the Mahratta school explain the text away by saying ‘that it applies only to an adoption made in the husband's lifetime, and is not to be taken to restrict the widow's power to do that which the general law prescribes as beneficial to her husband's soul.” (Per curiam, Collector of Madura v. Moottoo Ramalinga, 12 Moo. I.A 435 : S.C 1 B.L.R (P.C) 1 : S.C 10 Suth. (P.C) 17; V.N Mandlik, 463). A fourth and intermediate view was established by the Judicial Committee in the case from which this quotation is taken, viz., that in Southern India the want of the husband's assent maybe supplied by that of the sapindas. The doctrine of the Benares [360] school, as it prevails in Northern India, appears to be the same as that of Bengal, as to the necessity for the husband's assent; though upon this point a greater difference of opinion has prevailed from the circumstance that the Viramitrodaya, which allows the assent of the kinsmen to be sufficient, is an authority in that province (Viramit, ii. 2 S. 8); W. McN. 91, 100; 2 W. McN. 189; Shumshere v. Dilraj, 2 S.D 169 (216); Himan v. Koomar, Kn. 203: per curiam, Collector of Madura v. Moottoo Ramalinga, 12 Moo. I.A 440; S.C in the Court below, 2 Mad. H.C 216 : 2 Stra. H.L 92). The result is, that in the case of an adoption by a widow, in Mithila, no consent is sufficient; in Western India no consent is required: in Bengal and Benares the husband's assent is required; in Southern India the consent either of the husbands or of the sapindas is sufficient.” (Mayne's Hindu Law, s. 99, 3rd ed., pages 99, 100).

Such being the state of the law, I think it is open to us to adopt the view which seems to us most conformable to the spirit of Hindu jurisprudence, interpreting that spirit with due regard to maintaining consistency between the various precepts which, as I have already explained, draw a marked distinction between the sexes as to temporal rights and spiritual benefits, and place the woman far below the man. This cannot be doubted; and if this is so, it seems to me that in interpreting a doubtful proposition of law, the duty of the Judge is to interpret it so as to obviate the disturbance of harmony between the various doctrines of the same system. In this light, which I think is consistent with juridical principles, I would, even if I were limited to mere ratiocination, hold that it stands to reason that the disability or restrictions which the Hindu law imposes upon woman should apply to her in all the three stages of her existence, namely, maidenlwod, wedlock or coverture, and widowhood. I would hold thus because the texts of the Hindu law do not expressly state the reasons why any distinction between the two sexes as to the acquisition of spiritual benefits by adoption has been prescribed in the first two stages, and why the same analogy should not be carried on into the third stage, namely, widowhood. It is [361] not, however, upon mere analogical or abstract reasoning that I would decide such a question; but I do thus decide it because to my mind it furnishes ample reason for preferring the doctrine of the Dattaka Mimansa of Nanda Pahdit to the doctrine of the Viramitrodaya of Mitra Misra, these two being the most important authorities in conflict with each other, so far as the Benares school of Hindu law is concerned. I am all the more fortified in this view because, so far as the indispensability of the husband's permission to enable a Valid adoption by a widow is concerned, the doctrine of the Dattaka Mimansa is consistent, though not wholly coincident, with the Mithila and, Bengal schools of Hindu law and even with that of the Dravida or Madras school, where the only distinction made is that the consent of the sapindas is takenas a substitute for the consent of the husband. The only subdivision of the Mitakshara school which dispenses with the necessity of the husband's permission is the Maharastra school, which shows preference to the doctrines of the Mayukha, and prevailing as it does in the Bombay Presidency, in no small degree accounts for the partiality which Mr. Mandlik, himself a Mahratta Brahmin, and eminent lawyer of Bombay, has naturally shown to those doctrines. That the majority of the schools of Hindu law recognize the indispensability of the husband's permission in some form or other has already been shown by me, and it seems to me that I should be doing nothing more or less than introducing into this part of the country the doctrines of Mayukha, that is, the Maharastra school, if I were to adopt the whole length of Pandit Ajudhia Nath's argument on behalf of the appellant by holding that, for the validity of an adoption in the Benares school, the previous permission of the husband is not an essential condition. I will also later on show that such a course would also disturb the uniform continuity of decision in cases governed by the Benares school.

But before entering into the consideration and effect of modern authorities on Hindu law and reported cases, I wish to deal with the second part of the argument of the learned Pandit on behalf of the appellant, namely, that even if the husband's permission he [362] indispensable, it must be taken to be necessarily implied because an adoption by the widow would be conducive to his spiritual welfare. In supporting this part of his argument, the learned pleader laid much stress upon analogical reasoning to be derived from the powers of a Hindu widow to alienate the property of her husband for his spiritual benefits under circumstances falling under the category of legal necessity as understood in the modern phraseology of Hindu law.

Now, in the first place, this argument, so far as it relies upon the consideration of spiritual benefits to the deceased husband by the widow's act of adoption, seems to me to amount to nothing more than begging the whole question; because if adoption by a widow without her husband's permission is invalid in law, no spiritual benefits can accrue by such adoption to the soul of the deceased husband any more than an alienation invalidly made by a widow can confer any such benefit. The argument therefore does not carry the matter further than where it stood in connection with the first part of the argument which I have already disposed of. An invalid adoption does not affiliate a boy to the adoptive father, and therefore the adopted child can confer no spiritual benefits upon his adoptive father even if the latter had invalidly made the adoption himself, much less when such invalid adoption is made by his widow without his permission.

I do not, however, wish to leave the matter here, because I wish, out of respect for the learned arguments addressed to us on behalf of the parties by the learned Pandits on either side, to state what I consider to be a radical distinction between the powers of a Hindu widow in possession of her husband's estate to alienate his property under legal necessity and her power to make an adoption after his death. It seems to me that the conditions under which alienation, whether by sale, mortgage or otherwise, may be made, form rules of property appertaining to transfer, whilst adoption is not a rule of property under the Hindu law, but a rule of personal status. And I may affirm at once that even that ancient system—perhaps the most ancient in the world—does not ignore the broad distinction [363] between the rules of property and the rules governing personal status. And when I say this I must not be understood to be oblivious of the complications which this statement of the Hindu law, if understood unreservedly, might create if it is not borne in mind that under that system slavery was allowed, and also patria potestas much in the same manner as among the ancient Romans.

The broad distinction, however, remains that whilst in the case of alienations by a widow the personal status of no one is altered; in the case of adoption the personal status of a human being, namely, the adopted son, is undoubtedly altered. There can be no analogy between adoption and legal necessity justifying a widow to alienate her husband's estate, because adoptions may be made without the existence of any property to be inherited by the adopted son, whilst ex necessitate rei the existence of the husband's property is a condition precedent to the exercise of the power of alienation by a Hindu widow.

The learned Pandit for the appellant, beyond suggesting a remote analogy, has not cited a single authoritative text to warrant the view that adoption stands upon the same footing as legal necessity which would justify a Hindu widow to alienate her husband's estate. If he had pointed out such a text I should have been anxious to call upon the learned Pandit also to point out some text which would maintain the suggested analogy and meet the difficulty of a case in which a husband never intended to adopt, and before death positively prohibited his wife from adopting any one, as is often done in the case of property which a dying husband in leaving to his wife prescribes should not be alienated by her.

I have endeavoured in vain to find any authoritative texts which would meet the difficulties which the observations which I have just made suggest: and I cannot therefore help holding that the analogy is unsound. If the argument of the learned Pandit for the appellant were to be carried to its logical extent, a widow may give a son in adoption without the permission of her deceased husband, and so may a widow take a son in adoption without the permission [364] of her deceased husband. So that if the argument is right, two widows, one by giving and the other by taking, might bring about a valid adoption irrespective of the consent of their respective husbands or even of their sapindas. In other words, two widowed ladies might by mutual consent alter the personal status of a male human being, involving, as such alteration does, the result that not only in point of the pecuniary benefits of inheritance which the adopted son might have had from his natural father, but also in spiritual respects, he ceases to be the son of his own father, and becomes the son of a man who is no longer alive, who never intended to adopt him, and who never gave any permission to his widow to make any such adoption.

I hold that such a result wholly militates against the fundamental principles of Hindu jurisprudence, because such result would assign to womanhood a temporal and spiritual position enabling the female sex to govern the personal status of a male, both in his temporal and spiritual interests. And I say this with some emphasis, because upon all questions, of importance I have long held that the Smriti of Manu, which would abhor the spirit of such a notion, is the best guide.

But the learned Pandit goes on to argue that, in matters of adoption by the widow there is a necessary implication of her husband's permission, and he contends that the power to take in adoption must rest upon the same theory and principle as the power to give in adoption. With this hypothesis the learned Pandit has called our attention to the following texts of the Dattaka Chandrika (See. I, paras. 31 and 32):—

“But by a woman the gift may be made with her husband's sanction if he be alive; or even without it if he be dead, have emigrated or entered a religious order. Accordingly Vasistha says:— ‘Let not a woman either give or receive a son unless with the assent of her husband.’ Now, if there be no prohibition even there is assent: on account of the maxim:— The intention of another, not prohibited, is sanctioned.’ Yagnavalkya suggests the independency of the woman:—‘He whom his father or mother gives is a son given.

[365] Also in another place: “deserted by his father and mother, or either of them.” (Stokes' Hindu Law Books, p. 636).

These texts no doubt support the contention as to implied authority; but they are opposed to the doctrine of the Dattaka Mimansa (section IV, paras, 9, 10 and 11):—

“‘By a man having several sons.’ Since the masculine gender is here used, the gift of a son, by a woman, is prohibited. Accordingly Vasistha says:— Let not a woman either give or accept a son; and (her) independency is not ordained. With the husband's assent, a woman also is competent. Accordingly Vasistha adds: ‘unless with the assent of her husband.’ Whom his mother or his father gives (dadyat): ‘his mother or father give (dadayat‘). As for what is contained in these passages, as intimating the equality of the father and mother, that is merely with reference to the assent of the husband.”

The Dattaka Mimansa repudiates the whole doctrine of implied authority as much in the case of giving as in the case of taking in adoption by a widow; but the learned pleader for the appellant quotes the following paragraph of the same work to show that Nanda Pandit, the author of the Dattaka Mimansa, is inconsistent with himself when he lays down (section IV, para, 12):—

“It must not be argued that thus the gift of her son by a widow, though during a season of calamity, could not take place on account of the impossibility of the assent of her husband, analogous (to her incapacity) to adopt. For by referring to the instance recorded of Galava, such gift may be inferred as legal, and the singular number, indicating independence of another, is used.” (Stokes' Hindu Law Books, p. 573.)

Now, whilst I admit that so far as the doctrine of the husband's implied authority is concerned there is conflict between the Dattaka Chandrika and the Dattaka Mimansa, I confess I can see no inconsistency between the various parts of the rules laid down by Nanda Pandit. He uniformly upholds the indispensability of the husband's permission to validate an adoption by a widow, and he applies it [366] equally to the act of the widow in giving and her act in taking in adoption. The only exception which he mentions is the case of calamity or distress, when the husband has deserted his child or is dead, and where his permission to give his son in adoption is unprocurable.

Now, I have no hesitation in preferring the doctrine of the Dattaka Mimansa upon this point also, because it seems to me to be more consonant with the general spirit and fundamental principles of Hindu jurisprudence than the doctrine of the Dattaka Chandrika as to the husband's implied authority. Such implication of permission by the husband is based solely upon the theory that adoption by the widow would benefit the soul of the deceased husband. This point has already been disposed of by me as unsound under the Benares school of Hindu law; but even assuming, for the sake of argument, that such permission may be implied in the case of a widow taking in adoption, I fail to see how the doctrine of the Dattaka Ghandrika can be sound when it applies the doctrine equally to the case of a widow giving her son in adoption. I am unaware of any authority the Hindu law which would justify the view that the act of giving away a son in adoption is conducive to the spiritual welfare of his father, be he dead or alive. It is thus clear that if this hypothesis of spiritual welfare to the deceased husband applies to the case of a widow taking in adoption, it certainly cannot apply to the case of a widow giving in adoption, for she might thus be possibly depriving her husband and herself of such spiritual benefits as the Hindu law contemplates by the existence of a son after the death of the parents—that is, the doctrine which is the solitary foundation of the right of adoption under that system.

It is thus that it is not the Dattaka Mimansa which is inconsistent with itself but the Dattaka Ghandrika in so far as it may be understood to place implied authority of the husband on the same footing in the case of giving as in the case of taking. The Dattaka Mimansa, of course, in para. 12, section IV, permits the giving of a son by a widow during a season of calamity or distress without [367] her husband's permission, but this exception is expressly limited to seasons of calamity or distress, and is consistent with what is enunciated in the texts cited by the author in paras. 19 and 20 of the same part of the work, showing that according to Katyayana and Manu, seasons of distress and calamity stand upon a special footing of their own with reference to the power of giving away a son in adoption. This, indeed, is in full accord with the humane element which pervades the whole of Hindu jurisprudence, even where it lays down strict and rigid principles, and in the case of a son being given away during a calamity or distress, such as famine, that humanity is shown in the interests of the son and relieves the natural parents of what would otherwise be a sin in them. This is clearly brought out in the Dattaka Mimansa (section IV, paras. 19 and 20):—

“Hence the meaning is this: a gift of a son is to be made in a time of calamity only; not otherwise. Thus Katyayana says:— ‘But during a season of distress the gift or sale even may be made; otherwise he must not attempt the same. This is the injunction of the holy institutes.’ From the context ‘of sons and wives,’ is understood. Manu also:—“Whom his mother or father give during distress, confirming the gift with water.’ During distress:—In a famine, and so forth: should the gift be made, no distress existing, the giver commits a sin on account of the prohibition, ‘otherwise he must not attempt the same.”’ (Stokes' Hindu Law Books, page 575).

These texts then clearly show the reason of the distinction which Nanda Pandit in his Dattaka Mimansa makes between the power of a widow to give in adoption (in a time of distress) without her husband's permission and her power to take in adoption without such permission. The differentiating circumstance is of course the distress and calamity, and who would maintain that, a widow is driven to take in adoption because of such distress or calamity? The whole argument therefore which has been addressed on behalf of the appellant, so far as it proceeds upon the assumption of inconsistency of Nanda Pandit's rule in the Dattaka Mimansa, is fallacious.

[368] But the learned Pandit on behalf of the appellant pursued the argument further by calling our attention to the text of the Mitakshara itself (chap. I, sec. XI, para. 9) and Colebrook's Note thereon:—

“‘Whom his father or mother gives.’ Medhatithi reads and interprets ‘whom his father or mother give:’ (inserting the conjunctive particle cha instead of the disjunctive va). Balambhatta condemns that reading; and infers from the disjunctive particle and dual number in the text that three cases are intended, viz., 1st.— The mother may give her son for adoption with her husband's consent if he be absent or incapable; and without it, if he be dead or the distress be urgent. 2nd.— The father may give away his son without his wife's consent, if she be dead or insane, or otherwise incapable: but, with her consent, if she reside in her own father's house, 3rd.— The father and mother may conjointly give away their son if they be living together” (Stokes' Hindu Law Books, page 415).

Upon the authority of the views of Balambhatta thus expressed, the learned Pandit for the appellant has argued that the conclusions which are to be drawn from the Dattaka Mimansa, as I have stated them, are to be overridden. This argument has had my consideration, but I cannot adopt it because, in my opinion, the authority of Balambhatta cannot override the ratiocinative conclusions based upon the general spirit and principles of the Hindu law of adoption as represented by the doctrines of the Dattaka Mimansa of Nanda Pandit. I should not have said so unless I felt that the authority of Balambhatta is not so high as to override such conclusions. At page 17 of their work on Hindu law (3rd edn.), Mr. Justice West and Dr. Buhler state that Balambhatta is the non de plume of a, lady of the name of Lakshmidevi, who “gives a full and continuous verbal interpretation of the Mitakshara accompanied by lengthy discussions. She generally advocates latitudinarian views, and gives the widest interpretation possible to every term of Yajnavalkya………Her opinions are held in comparatively small esteem, and are hardly ever brought forward by the Sastris, if unsupported by other authorities.”

[369] To these views I cannot help adding the surmise that upon the particular question as to the woman's power to give or take in adoption Balambhatta's latitudinarain interpretation of the Mitakshara would naturally tend to favour her sex, and I would therefore regard her views of the law on such questions with great caution. When I say this I must not be understood to contradict what Mr. Shyama Charan Sarkar says at page xvii of his preface to vol. I of his Vyavastha Chandrika, to the effect that the work of Balambhatta, known as the Balambhatta-tika, is an authority in the Benares school, and may be referred to. All that I hold in this case is that I do not regard her authority upon the point now under consideration as higher than that of Nanda Pandit's ratioci-native enunciation of the law in the Dattaka Mimansa, to the effect that “the connection of lineage to the father is the filiation as his son; and such filiation proceeds from the sanction only of the father, not from the act of adoption; for the agent of that in this instance is the wife.” (Dattaka Mimansa, sec. I, para. 19). The exact effect of the preferable doctrine of the Benares school is perhaps best expressed by Mr. Sutherland in the last paragraph of Head first of his Synopsis of the Hindu law of adoption (Stokes' Hindu Law Books, page 664):—

“The same reason which imposes the necessity of adoption on a man not equally applying to a woman, the latter—(at least such seems the more accurate and prevailing doctrine)—is incapable in her own right of adoption, though it is admitted that by his sanction she may affiliate on the part of her husband a son who would necessarily be filially related to himself. Nanda Pandit denies generally the authority of the widow to adopt, assigning a reason by no means satisfactory, that the assent of her husband is impossible: but it is reasonable to admit, consistent with practice and the opinion of other authors, the validity of an adoption made by a widow under the sanction of her husband, written or formally expressed during his lifetime, and perhaps in some places under that of kinsmen.”

Having so far dealt with the original texts and the reasoning which by analogy or ratiocination might be deduced from them, I [370] proceed to deal with the reported rulings of the Courts, as they are, in my opinion, valuable, not only as indicating a long course of decision, but also as indications of the actual law and practice as understood by the population governed by the Benares school. As introductory to those rulings and indicating their effect, I quote the words of Sir Francis Macnaghten, one of the Judges of the Supreme Court of Fort William in Bengal, in his Considerations on the Hindu law, published so long ago as 1824, at page 155:—

“If a man, not having male issue, shall omit in his lifetime to adopt a son, the widow or widows may, in pursuance of his instructions, adopt one after his death. Adoption by a widow or widows, without instructions from the husband for that purpose, is mere nullity. This I lay down with confidence as the law. Vasistha says:— ‘let not a woman either give or receive a son in adoption unless with the assent of her husband.” After the death of her husband the widow is not competent to give one of his sons in adoption.”

Equally emphatic is the language adopted by Sir W.H Macnaghten in his Principles and Precedent of the Hindu Law, vol. 1, p. 100 (edn. 1829):—

“It is an universal rule in Bengal and Benares that a woman can neither adopt a son nor give away her son in adoption without the sanction of her husband previously obtained.”

Perhaps the oldest reported ruling on the subject is Case No. VIII on adoption, printed at page 182 of Sir W.H Macnaghten's work, vol. II, which was a case from Bundelkhand, and was decided on the 14th April, 1816, and it was there laid down that “a widow is incompetent to adopt a son; and if she has sons she cannot give one of them to any one.” The case was governed by the Benares school; but the question relating to the effect of express permission of the husband does not, however, seem to have been considered in that case. The question, however, arose and was decided by the Calcutta Sadar Diwani Adalat in Raja Shymshere Mal v. Rani Dilraj Konwur which was a case from the [371] District of Gorakhpur, which in 1816 was within the jurisdiction of the Calcutta Sadar Diwani Adalat. It was there clearly laid down that, according to the Hindu law as current in Benares, an adoption made by a widow without authority from her husband is illegal. In that case the answer given by the Pandit is thus stated in the Report (p. 171):—

“It is written in the Viramitradaya and Sanskar Konstribha that it is lawful for a widow to adopt a son without authority from her husband, provided she obtain the consent of her husband's heirs; but as this doctrine is overruled in the Dattaka Mimansa, a treatise of greater authority, the adoption of Partab Mal, by Rani Bakht Koer without authority from her husband Raja Bhim Mal, is illegal and invalid under the Shastras current in Gorakhpur, and such adoption being illegal, the appellant, as heir of his father Partab Mal cannot maintain any claim to the estate in dispute.”

The report then goes on to state the authority and reasons upon which the Pandits based their answer:—

“In support of answer first, Dattaka Mimansa Vasistha having said ‘let not a woman give or accept a son unless with the assent of her lord’ it is evident that a widow cannot, unless with the assent of her husband, adopt a son. It has been argued that this text is applicable solely to women whose husbands are alive, and not to widows, the wife alone being under control of the husband; to this it is answered the word ‘woman’ is to be taken in a general sense, and applied equally to a widow as to a wife, both being under control, the widow under that of the husband's kindred; to this it is urged in reply that a widow consequently may adopt a son with the assent of her husband's relations; but such a doctrine would be manifestly absurd; for if she could, with the consent of her husband's kindred, adopt a son, the word ‘husband’ must necessarily bear the sense of kindred, which it does not; and a son so adopted could not confer any benefit on the deceased husband, being adopted without his consent, where as a son adopted by a widow with the consent of her husband, is in truth the son of her lord.”

[372] These views were adopted by the Sadar Diwani Adalat, and I have quotod them in extenso, as they were the subject of consideration and approved by the Lords of the Privy Council in Raja Haimunchul Singh v. Koomer Gunsheam Singh. That was a case from the district of Etawah which is coterminous with the district of Mainpuri, to which this case belongs, and was therefore subject to the Benares school of the Hindu law. The Pandits of the Zila Court had in that case declared that the authority of the husband was not essential for a valid adoption by the widow; but the Pandits of the Calcutta Sadar Court overruled this opinion, and held that such permission was essential, and this opinion was adopted by the Sadar Court and affirmed by the Lords of the Privy Council on appeal. In dealing with the authorities there cited, their Lordships go on to say:—

“Upon a full consideration of these authorities, their Lordships are of opinion that they cannot come to the conclusion that the decision of the Court below is wrong. According to the native text-writers it seems to be clear that the ancient law of Hindustan required the authority of the husband; but it is also clear that the strictness of that law has been in many districts relaxed or modified by local usage; and the opinion of the Sastries, as published in Mr. Borradaile's Bombay Reports, is very strong to show that in the Mahratta States to the west of the Peninsula, the law does not require any such authority to render the act valid. But that such relaxation has extended to this particular district is not, in their Lordships' judgment, established; on the contrary, the weight of authority is in favour of the opposite conclusion. The opinion of the Pandits of the Sadar Court, both in this case and the case of Shumshere Mal (appendix, p. 83), and that of the Pandit of the Provincial Court of Appeal of Benares in the latter, appearing to be entitled to more credit than those of the Pandits of the Zilla and Provincial Courts of Etawah and Bareilly and of the City Court of Benares. Without pretending to decide what is the law in other districts of India, their Lordships feel bound to [373] say that in this particular district, upon the authorities brought forward in this particular case, they must pronounce that the law requires the direction of the husband in order to the validity of an adoption; at all events they cannot say that it does not; which they must do in order to reverse the judgment in this case.”

Now, I regard this exposition of the law as a distinct authority that even so far back as 1834, when these observations were made, it had never been decided that the authority of the husband was not essential to the validity of an adoption by the widow under the Benares school. The effect of the Privy Council ruling was so understood by the learned Judges of the Madras High Court in Collector of Madura v. Muttu Vijaya Ragunada Muttu. Referring to the case the learned Judges say (p. 216):—

“One other case was quoted for the appellants as a positive decision that in provinces governed by the Benares school of law the express assent of the husband was required, and by the respondents because it admitted the position that this ancient rule had in many places been modified. The case is reported in 2 Knapp, 203. The question arose in the zila of Etawah, in the North-Western Provinces, subject to the Benares school of law as we know, both from its geographical situation and from the Mitakshara being quoted as an authority, both by the Pandits who affirmed and by those who denied the validity of an adoption without the express assent of the husband (page 207 of the Report). The Bengal Pandits relied upon the Mitakshara and the Dattaka Chandrika, and the note of Mr. Colebrooke so often referred to and the passage of Sir T. Strange were quoted in favour of the validity of the adoption. This therefore is an express decision that there are places governed by the Benares school of law in which no assent but that of the husband will be sufficient to validate a widow's adoption……the materials contained in a case which, coincidentally withthis, was before the Sadar Court of Bengal (Raja Shumshere Mul v. Rani Dilraj Konumr, II Sadar Dew. 170, 171), were also before the Privy Council. The Pandits of the Sadar Court of Bengal quoted the Viramitradaya [374] and Sanskar Konstriblia, works of paramount authority in the special school of Benares, and declared their authority overruled by the Dattaka Mimansa of Nanda Pandita. So far, therefore, as the decision goes it is an authority for the paramount weight of the Dattaka Mimansa over the treatise specially applicable to Benares, and in a case arising in a zila proximate to Benares itself. Moreover, the case overruled the opinion of Mr. Colebrooke, if that opinion can be supposed to mean that the assent of the husband is not indispensable in countries following generally the doctrine of the Mitakshara. It is also of course an authority for the position that the Dattaka Mimansa, requires the direction of the husband to enable affiliation of the boy given to and accepted by the widow.”

I have quoted these observations with especial reference to the circumstance that in this case, which is usually known as the Ramnad Adoption Case, the learned Judges of the Madras High Court did not go the whole length of Pandit Ajudhia Nath's argument on behalf of the appellant by holding that a widow can adopt a son without the permission of her husband, though the learned Pandit insisted upon its authority as governing this case. The passages which I have quoted clearly show that the learned Judges, whilst laying down the rule as to the dispensability of the husband's permission, had present to their mind the earlier rulings relating to the Benares school which I have already cited, and that they did not intend to lay down the rule as applicable to this part of the country which I may call as the Benares school proper. Moreover, in that case the majority of the husband's sapindas had given their consent to the adoption, and this was taken as sufficient substitute for his permission according to the Madras law. This circumstance must be distinctly borne in mind in considering the authority and application of the ruling; all the more so as the ruling has been affirmed by the Lords of the Privy Council on appeal in that very case. The case (The Collector of Madura v. Moottoo Ramalinga Sathupathy), is reported at page 397 of 12 M.I.A, and at page 440 their Lordships of the Privy Council take care to point out that they are not to be under-tood as overruling the rule laid down by them with [375] reference to this part of the country. Their Lordships observe (at p. 440):—

“Against these authorities the appellants have invoked that of the case of Raja Haimunchul Singh v. Koomcr Gunsheam Singh. But what was in fact decided by the very guarded judgment delivered by the late Lord Wersleydale in that case? It was that, according to the native text-writers, including probably Vasistha, certainly including the Dattaka Mimansa of Nanda Pandita, the authority of the husband was requisite to a valid adoption; that the strictness of the law had been in many districts and, particularly in the Mahratta States, relaxed or modified by local usage; but that it had not been established to their Lordships' satisfaction that relaxation had extended to the particular district of Etawah in Upper India. Disclaiming, therefore, the intention to decide what was the law in other parts of India, their Lordships held that they could not say that the law in that district did not require the direction of the husband in order to the validity of an adoption, which it was necessary for them to do in order to reverse the Judgment of the Court below. It is clear that decision was not intended to govern, and cannot be taken to govern a case arising in the south of India. Upon the whole, then their Lordships are of opinion that there is enough of positive authority to warrant the proposition that, according to the law prevalent in the Dravida country, and particularly in that part of it wherein the Ramnad zamindari is situate, a Hindu widow, not having her husband's permission, may, if duly authorized by his kindred, adopt a son to him.”

This quotation is of supreme importance in considering this case, not only because Pandit Ajudhia Nath for the appellant has relied upon the Ramnad case, but also because this passage clearly shows that the Lords of the Privy Council were even more anxious than the learned Judges of the Madras High Court, whose judgment they affirmed to point out that the rule which they were laying down as to the dispensability of the husband's permission [376] to enable a widow to adopt was not to be held to apply to the whole of India but was to be limited to the Dravida country, namely, the Madras Presidency, and perhaps also the Maharashtta country, namely, the Bombay Presidency.

Now, this distinction renders the Ramnad Adoption Case inefficacious for supporting the learned Pandit's argument on behalf of the appellant. In the case of Ganga Sahai v. Lakhraj Singh I fully explained the various divisions and subdivisions of the Hindu law, which must not he lost sight of, more especially in interpreting the Hindu law of adoption. I there pointed out that, although the Mitakshara school includes Bombay and Madras along with this part of the country, it is subdivided into four important subdivisions, namely, Benares, Mithila, Maharashtra and Dravida; and that although these subdivisions unite in respecting the authority of the Mitakshara, they do not unfrequently differ in interpreting that authoritative text on points of detail—each subdivision having its own authoritative commentaries on the text.

The same distinction renders inapplicable to this case the more recent ruling of the Lords of the Privy Council in Sri Vira Virada Pratapa Sri Raghunada Anunga Bhima Deo Kesari Maharaz v. Sri Brozo Kishoro Patta Deo even if the point now under consideration were the exact point in the case. There are, however, certain dicta in the judgment of their Lordships which, far from supporting the appellant, tend to weaken the argument so ably addressed to us in support of the appeal. At page 191 of the report their Lordships observe:—

“Positive authority, then, does not do more than establish, that, according to the law of Madras, which, in this respect, is something intermediate between the stricter law of Bengal and the wider law of Bombay, a widow, not having her husband's permission, may adopt a son to him, if duly authorised by his kindred.”

These remarks clearly indicate that their Lordships were dealing only with the Dravida subdivision of the Mitakshara school prevalent in Madras and the latter portions of their judgment clearly show [377] that even under the Dravida school, permission of the husband is necessary, though in that particular part of the country it may be substituted by the consent of the sapindas. Their Lordships, after ruling that the assent given by one separated and distant sapindas (himself the father of the child taken in adoption) was not in law sufficient to authorize the adoption, go on to say:—

“In the present case there is an additional reason against the sufficiency of such an assent. It is admitted on all hands that an authorization of some kinsmen of the husband is required. To authorize an act implies the exercise of some discretion, whether the act ought or ought not to be done. In the present case there is no trace of such an exercise of discretion. All we know is that the Mahadevi, representing herself as having the written permission of her husband to adopt, asked the Raja of Piddakimidy to give her a son in adoption, and succeeded in getting one. There is nothing to show that the Raja ever supposed that he was giving the authority to adopt which a widow, not having her husband's permission, would require. Their Lordships have deemed it right to make these remarks, though not essential to the determination of the present appeal, because this doctrine of the power of a widow, not having her husband's express permission to adopt a son to him, which, before the decisions in the Ramnad Case, had not assumed very definite proportions, has obviously an important bearing upon the law of property in the Presidency of Madras.”

And then their Lordships proceed to make observations which, I think, may well be borne in mind in deciding this case, though it is governed by the Benares school of law. Their Lordships say:—

“It may be the duty of a Court of justice administering the Hindu law to consider the religious duty of adopting a son as the essential foundation of the law of adoption, and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there are grave social objections to making the succession of property, and it may be in the case of collateral succession, as in the present instance, the right [378] of parties in actual possession, dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of or capable of exercising dominion over property. It seems, therefore, to be the duty of the Courts to keep the power strictly within the limits which the law has assigned to it.”

Now, it must not be forgotten that these observations were made even with reference to a case governed by the Dravida school where, as I have already explained, the consent of the sapindas can take the place of permission given by the husband to enable a widow to make a posthumous adoption. I maintain that the principles of these observations apply a fortiori to a case such as this, which is governed by the stricter rules of the Benares school of law as to the necessity of the husband's permission.

This view is in accord with the manner in which Westropp, C.J, in the Full Bench case of Ramji v. Ghaman regarded the matter in a case governed by the Maharashtra subdivision of the Mitakshara school, which subdivision upon this particular point of the widow's power of adoption may be said to occupy the other extreme opposite to the Benares school. The learned Chief Justice in that case, in delivering the judgment of the Full Bench, assumes all along that the permission of the husband to validate an adoption by the widow is necessary as the general doctrine of the Hindu law, and in laying down a different rule for the Bombay Presidsncy, he speaks of it as “the Mahratta deviation from ordinary Hindu law,” when he holds “that the widow of a Hindu, dying without leaving male issue, may, her husband were separated from his family in estate (or, in other words, when she is his heir), to adopt without any express authority from him (if he have not prohibited her from so doing or otherwise implied his intention that she should not adopt) and without the consent of his relatives.”

He then goes on to point out “that there is not any sufficient text or precedent for conceding any wider range to that deviation,” [379] and expresses his concurrence in the remarks of Melvill, J., in Rupchand Hindumal v. Rakhmabai, where it was held that even under the Maharashtra school the power of a widow to adopt without the permission of her husband or of his kinsmen was limited to separated Hindu family estates, and the learned Chief Justice ruled that a Hindu widow, who has not the family estate vested in her and whose husband was not separated at the time of his death, is not competent to adopt a son to her husband without his authority or the consent of his undivided co-parceners. The same is the effect of the ratio decidendi adopted by West, J., in the later case of Giriowa v. Bhimaji Raghunath, which also was governed by the Maharashtra school.

I have dwelt upon both these cases because they were seriously insisted upon as authorities in support of the appeal; but it is enough to say that they expressly proceed upon the doctrine of the Maharashtra school, and that if they are of any value in this case as references, that value lies in showing as they do the unteuability, in the Benares school, of the argument for the appellant as to the authority of the husband being presumed or implied as given to the widow for making an adoption because of the spiritual benefits which such adoption might bring to the soul of her deceased husband. And indeed it is only in this sense that the Madras cases, which I have cited and considered at some length, are helpful in this case.

The effect of these cases, expressed briefly, is to show that in the Dravida country (that is, Madras), whether the family is joint or divided, the widow cannot make a valid adoption without the permission of her husband, unless she obtains the consent of the majority of her husband's nearest sapindas; and that in the Maharashtra country (that is, Bombay), where a more lax rule prevails, she may, when in possession of a divided estate as heir of her separated husband, make an adoption to him without any kind of express permission, either from him or his sapindas; but that in the case of a joint undivided Hindu family estate she cannot make [380] any valid adoption without the consent of her deceased husband's co-parceners in the joint Hindu family.

Now, I have no desire to enter into any elaborate discussion to show how the Benares school upon this point, as represented by the doctrines of the Dattaka Mimansa of Nanda Pandit, is more logical and consistent with the general spirit of the Hindu law than either the Dravida or the Maharashtra subdivision of that system of jurisprudence. But the exigencies of the question to be determined in this case do require me to point out that if the implication of the husband's authority for an adoption by his widow is to be assumed upon, the ground of such adoption being beneficial to his soul, I fail to see any reason, either in common sense or in the spirit of the Hindu law, which would enable a dead man's sapindas or nearest kinsmen to deprive him from such spiritual benefits, by preventing or prohibiting his widow to make an adoption. Further, so far as the Bombay cases are concerned, I fail to see how the fact of a man being joint or separate in estate can affect the powers of his widow to make an adoption for the spiritual benefits of her husband. The devolution of inheritance upon an adopted son is a mere incident flowing from the fact of the adoption, and I am unaware of any authority in the Hindu law which lays down that the possession of property, whether moveable or immoveable, is a condition precedent qualifying the powers of the adoptive parents. Nor am I aware of any authority which would justify the view that the spiritual salvation of a childless Hindu is less important in the case of a member of a joint Hindu family than in the case of a separated member. And if this is so, and if it is also true that the solitary foundation of the Hindu law of adoption is the spiritual benefits to the soul of a childless Hindu, it seems unintelligible and almost irrational why such benefits which, according to the Dravida and Maharashtra schools, might be created by the widow's adoption, should be made dependent upon the will of the deceased husband's sapindas the very persons most interested, in a mundane sense, in preventing those spiritual benefits, because they would be depriving themselves of inheriting the property of their deceased kinsman the husband of the widow.

[381] Now, it is not because I have any desire to decide Hindu law cases of this character upon modern methods of reasoning that I have made these observations, which, I confess, assail the doctrines of both the Dravida and Maharashtra schools of the Hindu law of adoption, and tend to show that those doctrines are inconsistent with the general spirit of that system, both as to spiritual salvation and the right of inheritance which is founded upon that contemplation. I have made those observations because both the Dravida and Maharashtra schools are subdivisions of the Mitakshara school in common with the Benares school which governs this case, and also because the learned Pandit for the appellant insisted upon maintaining that the Madras and Bombay cases must be taken to govern the decision in this case also. I have made these observations also in order to show that the doctrines of the Dattaka Mimansa of Nanda Pandit upon this point represent the correct view of the Benares school, and must be preferentially adopted in this case to maintain the harmony of decision as represented by the reported cases governed by the Benares school.

What then has been the course of decision in this part of the country, falling as it does within the area of what I call the Benares school proper? I have already shown that so long ago as 1816 the Sadar Diwani Adalat of Calcutta in dealing with a case from these Provinces, Raja Shumshere Mull v. Rani Dilraj Konwur, held the express permission of the husband to be an essential condition for the validity of an adoption by the widow, and that the rule was approved so long ago as 1834 by the Lords of the Privy Council in Raja Haimunchul Singh v. Koomer Gunsheam Singh. I will now show that there are other cases which lay down the same rule. We all know that Behar is subject to the Benares school, and the Sadar Diwani Adalat of Calcutta in Jairam Dhani v. Musan Dhani held, consistently with their ruling of 1816, that by the Hindu law applicable to Behar, the permission of the husband is necessary to legalize adoption by his widow, and the same principle was the foundation of the decision of the same Court in Gournath Chaudhree [382] v. Arnopoorna Chaudhrain which was also a Behar case and governed by the Benares school.

So far as this Court is concerned, the only authoritative dictum to be found upon the point is in the judgment of Roberts, J., in Thakoor Oomrao Singh v. Thakoranee Mahtab Koonwer at p. 103k; and 103l of the report, where he says:—

“It is desirable to consider as regards the facts to be established in the two next issues of the husband's authority to adopt and the fact of what is the law on the subject and what is the view which has prevailed and would seem still to prevail on the subject. The law must be governed by the rules laid down in the Dattaka Mimansa, which is of paramount authority in the tracts governed by Benares law. In the present case the plaintiff must prove that the widow had the authority of her husband to adopt, that she made the adoption when the boy adopted was under six years of age and with the prescribed ceremonies. If the plaintiff does not succeed in establishing these points, the filial relation fails: he may be entitled to some compensation, but he has no right to inherit the property.”

This view, so far as it insists upon the necessity of the husband's permission, which was expressed in 1868, has never yet been doubted by any Judge of this Court, and in my opinion furnishes evidence of how the law has been uniformly understood in this part of the country, and I feel that I am in no small measure supported in this observation by the circumstance that in all the cases relating to the Benares school which I have already cited, the party interested to maintain the adoption pleaded that, as a matter of fact, the deceased husband had given permission to the widow, as indeed is the case in this very case also, although the lower Courts have held that no such permission is proved. Another notable instance of the same circumstance is the case of Chowdhry Pudum Singh v. Koer Oodey Singh which was a case which went up to the Privy [383] Council from this part of the country, and their Lordships, referring to the pleadings of the parties in that case, go on to say:—

“The question as to the adoption of the appellant is one entirely of fact. There is no doubt, and indeed it was fully admitted, that adoption might be made by a widow under an authority conferred upon her for that purpose by her husband. Of course, such authority must be strictly pursued, and as the adoption is for the husband's benefit, so the child must be adopted to him, and not to the widow alone. Nor would an adoption by the widow alone, for any purpose required by the Hindu law, give to the adopted child, even after her death, any right to the property inherited by her from her husband. In order, therefore, to establish the validity of the adoption in this case, it was necessary for the appellant to prove—first, the authority given by Hem Singh to his wife to make the adoption; and second, the actual adoption by Khoosal Koer of the appellant as the son of Hem Singh.”

Now, I have cited this passage not because it specially decides the exact point now before us, but because it fully bears out the argument of the learned Pandit Bishambhar Nath, to the effect that ever since 1816 it has always been taken for granted and assumed as an unquestionable doctrine that express permission to the widow by her deceased husband is an essential condition precedent to the validity of an adoption by her in cases governed by the Benares school. And whilst this is so, the learned Pandit Ajudhia Nath for the appellant, beyond relying upon his interpretation of the original texts and relying upon the Dravida and Maharashtra cases arising in Madras and Bombay, has been unable, notwithstanding much research, to point out a single case reported or unreported in which the parties did not raise the plea as to the necessity of the husband's permission, or in which this Court, or any other, dealing with the question in cases governed by the Benares school has ever dispensed with such permission as an essential element for the validity of an adoption by the widow. Referring to my own personal experience both at the Bar and on the Bench, I think I may safely affirm that till so late as 1886, when my brother [384] Straight and I had to decide the case of Ganga Sahai v. Lekhraj Singh it was never seriously contended that, under the Benares school of law and the actual living practice in this part of the country, the husband's permission was not essential to the validity of an adoption by the widow.

Speaking for myself, I cannot refrain from saying that in deciding this case I have received valuable help from the learned and able arguments addressed to us in the Full Bench by the learned Pandits who appeared for the parties; and indeed it has been in view of this circumstance that I have considered it my duty to cover the whole ground of those arguments by delivering the judgment at such length upon a vexed question, such as this case has raised. And I trust that in dealing with that question I have not transgressed the advice given by the Lords of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathy nor their Lordships' observations in Sri Raghuhadha v. Sri Brozo Kishore as to the manner in which Courts of justice in this country must deal with vexed questions of the Hindu law where the original Hindu text and interpretations are divergent, and the case-law is also in conflict. I have already quoted the two passages to which I have just referred, and I think, under the circumstances of this case and the practice prevailing in this part of the country, it is especially important to bear in mind the advice given by their Lordships in the later of those passages, where they say that “it is impossible not to see that there are grave social objections to making the succession of property dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of or capable of exercising dominion over property.”

These observations are particularly applicable to this case, because as I have set forth at the outset of this judgment, the admitted circumstance that Musammat Lareti, defendant, in making the adoption of Tulsi, defendant, and executing a deed in his favour on the 16th of January, 1886, on that same day obtained from [383] Jhamman the grandfather and guardian of the adopted son, an ikrarnama, agreeing to pay Rs. 100 annually from this estate to one Ram Sahai, who is the son of the widow's brother, and in no sense entitled to inherit any interest in her husband's estate. The circumstance to my mind is a strong illustration of the circumstances contemplated by the Lords of the Privy Council in the passage which I have just cited as to the caprice of a woman, and the pernicious influences to which she, especially in widowhood, is subject in India.

But it is not upon the ground of any finding as to the capriciousness of the transaction of the 16th of January, 1886, or of collusion or fraud between the widow Musammat Lareti and Jhamman, the grandfather of the adopted son Tulsi, nor upon any suspicion of any undue influence exerted in behalf of Ram Sahai, the son of the widow's brother, that I decide this case. I decide it upon the doctrines of the Hindu law of adoption as they must be understood in the Benares school; as they have been uniformly understood ever since 1816 in the reported cases; as they have been uniformly acquiesced in and adopted in practice by the Hindu population inhabiting the territories governed by the Benares school: and I think that we should be doing nothing more or less than introducing not only a social but a religious innovation and disturbing the accepted rules of succession to property by adopted sons if we were to abrogate the uniform course of decision in this part of the country, dating so far back as 1816. If there is any validity in the judicial doctrine of stare decisis, which I think has validity and is applicable even to such cases, I hold that we should be shaking settled titles and undoing the uniform judicial exposition of more than half a century of the British Rule in India, if we were in 1890 to adopt the argument of the learned Pandit Ajudhia Nath for the appellant that ever since 1816 the Courts of British India have misunderstood the doctrines of the Benares school of Hindu law as to adoption, and have wrongly insisted upon the necessity of express permission by the husband as an essential condition precedent to the validity of an adoption by his widow.

[386] I am wholly unable to accept any such result, and hold that, according to the Benares school of Hindu law, no adoption can be legally made by a widow without the express permission of her husband; that where she makes an adoption without such permission, the doctrine of factum valet as understood in the Hindu law or in other systems of jurisprudence cannot cover the case, because it affects the very essence of the competency to take a child in adoption; that therefore such adoptions, though actually made, are wholly illegal and invalid, mull and void, under the Benares school of Hindu law prevalent in the territories within the jurisdiction of this Court.

Since, in pursuance of my brother Straight's order of 6th June, 1888, the whole of this case has been referred to the Full Bench, the result of my judgment in the case is to dismiss this appeal with costs, and I would do so accordingly.

Sir John Edge, C.J:— I have carefully considered the very exhaustive and instructive judgment which my brother Mahmood has just delivered, and with it I thoroughly agree. I feel that I can add nothing to it, but I wish to say that, having regard to the fact that the texts of the early commentators are more or less in conflict, to the fact that no single case which arose in the North-Western Provinces, in Oudh, or in those districts in Lower Bengal in which the Benares school is followed, has been cited to us in support of the contention that a Hindu widow subject to the Benares school can, without an express authority given to her by her deceased husband, make a valid adoption to him, and to the decision in the case from Gorakhpur of Raja Shumshere Mull v. Rani Dilraj Konwur, to that in the case from Etawah of Raja Haimunchul Singh v. Koomer Gunsheam Singh in 1834, to that in the case from Agra of Thakoor Oomrao Singh v. Thakorannee Mahtab Koonwer in 1868, and to that in the case from Aligarh of Chowdhry Pudum Singh v. Koer Oodey Singh, I would expect that any one who would now contend that a Hindu widow subject to the Benares school could make a valid adoption to her deceased [387] husband without express authority given by him, would support that contention by clear proof of general usage in the particular district that an adoption under such circumstances was, in the particular district, recognized as valid by those subject to the Benares school. No such evidence has been given here, and no such usage has been proved. I may further say that I entirely agree with my brother Mahmood that the principle of factum valet is inapplicable to a case like this.

In the view which I take of the case, it is not necessary to consider whether or not an only son or a sole surviving son can, according to the Hindu law, as interpreted by the Benares school, be given or taken in adoption.

I agree that this appeal should be dismissed with costs.

Straight, J.:— I have very carefully read and considered the judgment of my brother Mahmood, and I concur in it, and in his order dismissing the appeal with costs.

Brodhurst, J.:— I entirely agree.

Tyrrell, J.:— I agree.

Appeal dismissed.