Judgement

The first of these appeals was from a decree of the High Court of Madras (Sept. 20, 1894) affirming a decree of the District Court of Godaveri (Sept. 20, 1893) and dismissing a suit of the appellant to set aside an adoption made by the first respondent, the widow of one Butchi Sarvarayudu.

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On November 10, 1888, the widow adopted the second respondent, Sri Balusu Pattabhiramaya, the only son of a distant relation of the deceased Butchi, who had died when his son was about three months old. It was found by both Courts that he had expressed his wishes in favour of the adoption; and it was not disputed that before the adoption the male members of Butchis family were consulted and consented to it, several of them in writing. The appellant was the brother of the natural father of the adopted Roy, and succeeded to the rights which the Roy relinquished on his adoption.

The prayer of the plaint was to set aside this adoption, " by reason of the first defendant not having been legally authorized to make it, and by reason of the said defendant having been an only son, and as such not being disposable in adoption."

The main issue raised was one of law as to the invalidity of the adoption of an only son. Both Courts decided that the adoption was valid. They rested their judgments upon the course of decisions in Madras, and did not examine the conflicting decisions in Bengal and Bombay.

Mayne, for the appellant, contended that the adoption of an only son is forbidden by HINDU LAW and is invalid. The Hindu authorities in favour of that proposition are, first, the texts of the Rishis Vasishtha, see Max Miillers Sacred Books of the East, ch. xv. ss. 1-5, and Col. Dig. Bk. V. c. iv. s. 8, No. 273; Baudhayana, cited in Dattaka Mimamsa, s. V. vv. 31 and 42; Saunaka, as quoted in Vyavahara Mayukha, c. iv. s. V. v. 9, Stokes HINDU LAW Books, p. 61; and see for all three Rishis citations in Lakshmappa v. Ramava (( 1875) 12 Bomb. H. C. 377.); and in Dattaka Mimamsa, s. 4, v. 1 et seq., Stokes, p. 571. Compare Menu, IX. 142. Second, the Hindu commentators see Dattaka Mimamsa, sect. 4, vv. 1-6, Stokes, p. 571; Dattaka Chandrika, sect. 1, vv. 27-30, Stokes, p. 635; Mitakshara, c. 1,

s. xi. vv. 9-12, Stokes, p. 416; Sarasvati Vilasa, p. 74, ss. 368, 369, and see preface; Viramitrodaya (Sarkar), p. 115, § 8, see preface, p. 14. The Viramitrodaya is held by the Privy Council to be a work of especial authority in Benares on any point left doubtful by the Mitakshara see Collector of Madura

v. Moottoo Ramalinga (( 1868) 12 Moores Ind. Ap. Ca. 438.) and Gridhari Lall Roy v. The Bengal Govern ment. (( 1868) 12 Moores Ind. Ap. Ca. 448.) Then come the more modern authorities of English writers see the opinion of Colebrooke, as given in 2 Stranges H. L. 105, 106, 107; Ellis, ibid. pp. 105, 106, 107; Sir T. Strange, 1 Strange, 85, and Stranges Manual, p. 18, No. 98; Sutherlands Synopsis, Stokes, p. 665; 1 W. Macnaghten, 67 ; 2 W. Macn. 178, 179, 182, 192, 195, and Sir F. Macn. 147; Steeles Castes, p. 45, s. 39; p. 183, s. 39; West and Buhler (3rd ed.),

p. 909, 912, 1040; Jagannathas Digest, Book V. c. iv. s. viii. para. 273, note. The doctrine of factum valet does not apply; the adoption being wholly void, there was no factum, and the transaction is a nullity. Reference was made upon the subject of factum valet to Lakshmappa v. Ramava (12 Bomb.

H. C. 397.); Gopal Narhar Safray v. Hanmant Ganesh Safray (( 1879) Ind. L. R. 3 Bomb. 293) ; Ganga Sahai v. Lekhraj Singh (( 1886) Ind. L. R. 9 Allah. 296.); Srimati Uma Devi v. Gokoolanund Mahapatra . (( 1878) L. R. 5 Ind. Ap. 53.)

With regard to the current of decisions in the Madras Presidency, the first was Veerapermall Pillay v. Narrain Pillay ((1801) 1 Strange, N. C. (ed. 1827) 78), where the ruling was in the first place an obiter dictum, and in the second was discredited by Sir T. Strange in 1 Stranges H. L. 102. Then came Arunachallam Pillai v. Ayyasvami Pillai ((1817) Mad. Sel. Dec. 156.), which was another instance of an obiter dictum; Permaul Naickhan v. Potti Ammal (( 1851) Mad. S. Dec. 234.), which was a case of an eldest son of a brother and not of an only son; Chocummal v. Surathy Amay (( 1854) Madr. Dec. 31, 32, 36), another case of an eldest son; Chinna Gaundan v. Kumar a Gaundan. (( 1862) 1 Madr. H. C. 54.) See also Narayanasami v. Kuppusami (( 1886) Ind. L. R. 11 Mad. 43, 46); Sri Arumi Devi v. Sri Vikrama Devu . (( 1888) Ind. L. R. 11 Mad. 489, 490; S.C., L. R. 15 Ind. Ap. 176.)

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Then with regard to the Allahabad decisions, Hanuman Tiwari v. Chiraj (12) rests on Chinna Gaundan

v. Kumara Gaundan (( 1879) Ind. L. R. 2 Allah. 164.) and on Bengal and Bombay cases now overruled. Turner J. dissented on the grounds of the fathers incompetence to give, and of the failure of such gift if made to effect the object in view. Later on Straight and Mahmood JJ. expressed their doubts as to the correctness of this decision in Tulshi Ram v. Behari Lal (( 1889) Ind. L. R. 12 Allah. 331.), but no actual decision was come to in this last-mentioned case upon this point. Finally, the case in 2 Allah. 164 was affirmed in Beni Prasad v. Hardai Bibi (( 1892) Ind. L. R. 14 Allah. 67.), Jaiminis rule of construction, never before referred to in any decision, being for the first time enforced see pp. 73, 125. That rule of construction is, that where the Rishis lay down a rule assigning reasons, it is commendatory only, addressed to the conscience; where without reasons it is imperative, of binding legal obligation. See also Mandliks Vyavahara Mayukha, p. 499. But in Raja Upendra Lal Roy v. Srimati Rani Prasannamayi (( 1868) 1 Beng. L. R. 223.) the adoption of an only son was declared to be invalid in the sense of being peremptorily prohibited on the high authority of Dwarkanath Mitter J., who on the authorities and on principle arrives at that con clusion, without reference to Jaiminis rule, and repudiating the doctrine of factum valet as inapplicable to the case.

The prohibition relied on in this case is against giving, not against receiving; there being no gift there cannot be acceptance, and the whole transaction is a nullity. Disobedience involved a penalty. According to Menu. c. cix. vv. 141, 142, 159, 168, the act prohibited is one for which punishment is prescribed, while none is prescribed for a wrongful receiving in adoption see Beni Pershad v. Hardai Bibi. (( 1892) Ind. L. R. 14 Allah. 119)

With regard to the Bengal cases, their principal importance is as to the application of the principle of factum valet. The cases are Nundram v. Kashee Pande ((1823) 3 Sel. Rep. 232; S.C. 4 Sel. Rep. 70, 78.); Debee Dial v. Hur Hor Singh (( 1828) 4 Sel. Rep. 320, 407.); Sreemutty Joymony Dossee

v. Sreemutty Sibosoondry Dossee (( 1837) Fultons Rep. 75.), which rests on 1 Strange, H. L.86; Raja Upendra Lal Roy v. Srimati Rani Prasannamayi (1 Beng. L. R. 221.); Musst Tikdey v. Lalla Hureelall (( 1864) Suth. W. R. 133.); Manick Chunder Dutt v. Bhugyobuttee Dossee . (( 1878) Ind. L.

R. 3 Calc. 443)

The Bombay cases dealing with this subject are as follows Huebut Rao Mankur v. Govind Rao Mankur ((1821) 2 Borr. 75,79,85,8b, 87.), which relates to the validity of the adoption of an eldest son; Bhaskar v. Mahader (( 1869) 6 Bomb. H, C. 0. L. J. 4.); Lakshmappa v. Ramava (12 Bomb. H.

C. 364,376.); Rangabai v. Bhajir- thibai (( 1877) Ind. L. R. 2 Bomb. 379); Somasekhara v. Subadramaji (( 1882) Ind. L. R. 6 Bomb. 524) ; Kashibai v. Tatia (( 1883) Ind. L. R. 7 Bomb. 221); Waman Raghupati Bova v. Krishnaji Kashiraj Bova (( 1889) Ind. L. R. 14 Bomb. 249; F. B. 255.), where a Full Bench judgment, delivered by Sargent C.J., declared the invalidity of this adoption in accordance with the Calcutta decision, and in opposition to the Madras and Allahabad decisions. See also Basava v. Lingangauda (( 1894) Ind. L. R. 19 Bomb. 428.), where such an adoption was upheld, but only on the ground of special custom proved in that case; and Raiji Jadav v. Rai Mathura (( 1894) Ind. L. R. 19 Bomb. 658.), where its invalidity as a matter of general HINDU LAW was reaffirmed.

It was further contended that, as regards the special circumstances of this case, the husband had not given authority to his widow to make this adoption; and that, assuming its legality, it was admittedly a sinful adoption, and one which violated the religious duty of a Hindu. Consequently, it was ultra vires the sapindas, whose assent to the adoption in ordinary cases would have supplied the absence of direct authority from the husband to validate an act which could not be assumed to be that of the deceased proprietor. Even if by his direct authority the latter could have validly adopted an only son, the absence of that authority could not be supplied by the consent of sapindas, and thereby an adopted son be

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assigned to him without his actual assent in violation of the shasters. As to the sufficiency and effect of the consent of sapindas, reference was made to Collector of Madura v. Moottoo Ramalinga Sathupathy (( 1868) 12 Moores Ind. Ap. Ca. 442); Lakshmappa v. Ramava (12 Bomb. H. C. 364.) ; Somasekhara Raja v. Subadra maji (Ind. L. R. 6 Bomb. 524, 527.); Nilmadhub Doss v. Bishumber Doss . (( 1869) 13 Moores Ind. Ap. Ca. 100.)

Branson, and Phillips, for the respondents, contended that the Madras cases cited on the other side established that the adoption of an only son is in accordance with the laws and usage of Hindus in the Madras Presidency, and is valid. Hanuman Tiwari v. Chiraj (Ind. L. R. 2 Allah. 164.) was also relied on. Strange J. in his decision of 1801 in the case of Veerapermal Pillay v. Narrain Pillay ((1801) 1 N. of C. at Madras, 91, 126) refers to an earlier case of the Rajah of Tanjore, which established that the adoption of an only son while it incurred guilt was yet a good adoption according to usage. Then with regard to the appellants title to sue, be must bring himself within the rule Laid down in Rani Anund Koer v. Court of Wards (( 1880) L. R. 8 Ind. Ap. 14, 22.), for he is not the next reversioner. With regard to the objection that an authority to the widow to adopt could not be implied from the assent of the sapindas owing to the objectionable character of the adoption, the question is, was the benefit to the soul of the deceased husband by adopting a son greater than the guilt incurred by adopting an only son? [Lord Macnaghten. This question of the widows authority ought to have been raised in the lower Court.] The course of decisions referred to above, reaching back for more than a century, was really decisive of the law see Thakoorain Sahiba v. Mohun Lall (( 1867) 11 Moores Ind. Ap. Ca.), where Sir James Colvile says (11 Moores Ind. Ap. Ca. 403.) " To alter the law of succession as established by a uniform course of decisions or even by the dicta of received treatises by some novel interpretations of the vague and often conflicting texts of the Hindu commentators would be most dangerous, inasmuch as it would unsettle existing titles." See also the Collector of Madras v. Mutta Ramalinga Satupathy (( 1868) 12 Moores Ind. Ap. Ca. 397), where Sir James Colvile also Laid it down that it was the duty of a European judge who was under the obligation to administer HINDU LAW , not so much to inquire whether a particular doctrine is deducible from the earlier authorities as to ascertain whether it has been received by the particular school with which he is dealing and has there been sanctioned by usage. (12 Moores Ind. Ap. Ca. 436.) They then referred to Beni Prasad v. Hardai Bibi (Ind. L. R. 14 Allah. 67, 68. 386,), where all the arguments in favour of the validity of such adoptions are given in very full judgments delivered. These arguments they adopted, and submitted that they altogether outweighed the Full Bench decision in Waman Raghupati Bova v. Krishnaji Rahiraj Bova. (Ind. L. R. 14 Bomb. 258.)

Mayne, replied.

The second of these appeals was from a decree of the High Court at Allahabad (March 18, 1892), affirming a decree of the Subordinate Judge of Benares (Nov. 21, 1887), which dismissed with costs the appellants suit brought to declare the invalidity of an adoption by respondent No. 1 of the respondent No. 2, the latter being at the time of the adoption the only son of his parents.

The Subordinate Judge in his judgment relied upon the Full Bench decision in Hunuman Tiwari v. Chiraj. (Ind. L. K. 2 Allah. 164.)

The High Court (Mahmood and Young JJ.) in appeal referred the case to a Full Bench.

The order of reference alluded to the dissent of Turner J. from the Full Bench ruling in 2 Allah. 164, stated that there was no reported case since its delivery to shew that it had ever been followed in any case; that there were, however, two unreported cases, in both of which the Division Bench were not satisfied with that Full Bench ruling, and sent the respective cases to be decided by a Full Bench; that

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ultimately in both these cases the point was not considered, because they were disposed of on other considerations.

The following questions were referred to the Full Bench—

First, the adoption of an only son having taken place in fact, is such adoption null and void under the HINDU LAW ?

Second, if so generally, does subsequent birth of sons to the natural parents of the son have a retrospective effect of validating the adoption?

Third, does the circumstance that the adopted son is a sagotra, or descended from one common ancestor with the adoptive father, render his case an exception to the general rule of prohibition against adoption of only sons?

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

Edge C. J.s judgment is in Ind. L. E. 14 Allah. 68-100. He states that the code of Manu does not contain any prohibition or recommendation against the adoption of an only son. The question has arisen on a text of Vasishtha, and one of Saunaka. He sets out a translation of Vasishthas text by Colebrooke (Digest, vol. 2, p. 387), and one by Mandlik, at p. 499 of his Vyavahara Mayukha, and says there is not much difference between them. It appears that they both say that adoption is for the obsequies of the ancestor, or saving him from Put, or Hell. He then refers to the proper rules for construing such passages in Sanskrit—rules which, he says, have been frequently overlooked, or not referred to, by judges or text-writers, probably because they are in Sanskrit, and have not been translated into English; that Mr. Colebrooke refers to them, and so do Mr. Mandlik and Gopal Chunder Sarkar, in his Tagore Law Lectures of 1888, on the HINDU LAW of adoption. Such rules, he says, are to be found in the Mimamsa of Jaimini, who lived in the thirteenth century, i.e., subsequent to the Mitakshara, but anterior to the Dattaka Mimamsa and the Dattaka Chandrika; and the question arose, Did the Dattaka Mimamsa and the Chandrika ignore the rule of the Mimamsa of Jaimini in commenting on the text of Vasishtha ? Arriving at the conclusion that the Mimamsa of Jaimini contained authoritative rules for the construction of texts, and, applying them to Vasishthas text, he decided that that text is to be construed as a religious recommendation, not as a positive and imperative prohibition, because a reason is given in the text for the precept. For it is a rule of the Mimamsa of Jaimini, or the Purva Mimamsa, that all texts, supported by the assigning of a reason, are to be deemed, not as vidhi, but as artha vadha, or recommendatory. The text of Vasishtha, as given in Colebrooke, is as follows " A son formed of seminal fluids and of blood proceeds from his father and mother as an effect from its cause, both parents to have power for just reasons to give, to sell, or to desert him; but let no man give or accept an only son, since he must remain to raise up a progeny for the obsequies of ancestors." Vasishtha was, undoubtedly, one of the Rishis, or sages, and his texts are of very great authority as presenting divine precepts; and as Manu nowhere records any prohibition against the adoption of an only son, the Chief Justice was further led to conclude that the text of Vasishtha must be construed as a recommendation merely. One of the lower Rishis was Saunaka, but the Mitakshara based its commentary not on this but the said Vasishtha

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text. Sutherland translates Saunakas text "By no man having an only son (eka putra) is the gift of a son ever to be made; by a man having several sons (bahuputra) such gift is to be made on account of difficulty (prayatnata) " ; Sutherland on Dattaka Mimamsa, p. 571, Stokes HINDU LAW Books. Referring to a translation by Mr. Mandlik of this passage, the Chief Justice pointed out that if the Sanskrit word means " must" in that portion of the text which relates to the adoption of an only son, it ought to be read as " must" in that portion which refers to several sons; but it had not been suggested that the HINDU LAW imposed any imperative dty on a father to give one of his sons in adoption.

He next referred to Colebrookes translation of the Mitakshara as follows "By specifying distress, it is intimated that the son should not be given unless there is distress. This prohibition regards the giver (not the taker). So an only son must not be given (nor accepted), for Vasishtha ordains, Let no man give or accept an only son, nor, though a numerous progeny exist, should an eldest son be given, &c."; and remarked that the words in parenthesis were incorporated by Mr. Colebrooke, from Balambhattas commentary; the author of it was a lady of modern times, whose commentary has not been relied upon as of any authority in these provinces. The Sanskrit words " na deyah," which Mr. Colebrooke translated "must not," in passage 11, have been rendered by him as " should not" in passages 10 and 12, and he was probably influenced by Balambhattas commentary in so doing, as Gopal Chundar Sarkar has pointed out, who places "should not" in both passages. Manu ordains, "By the first born son, as soon as born a man becomes the father of male issue." From all of which the learned Chief Justice came to the following conclusion " It will be noticed that, although the author of the Mitakshara cites only a portion of the particular text of Vasishtha, omitting that portion of the text which gave the reason for the precept, his use of the word which, as translated, means similarly, and his use in all three passages of the words na deyah, shew, when one examines the second of the three passages in conjunction with the first of them, that he construed the text of Vasishtha as the rules of the Mimamsa of Jaimini require it to be construed, and read the text of Vasishtha as giving a religious recommendation only, and not as imposing an imperative prohibition against the adoption of an only son.

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

And he says that Markby J. in Calcutta, Westropp C.J. in Bombay, and Turner J. in Allahabad had been materially influenced by what were misleading and incorrect translations by Mr. Colebrooke of the passages of the Mitakshara in question, which, correctly rendered, left Vasishthas text as it stood, and the Mitakshara did not understand that the adoption of an only son was imperatively prohibited by Vasishtha, or other sacred HINDU LAW book.

Next, referring to the Dattaka Mimamsa and the Chandrika, the learned Chief Justice considered that they possessed, at present, an authority over other works on the same subject, perhaps because they became early accessible to English lawyers and judges from being translated by Sutherland; that the Privy Council, in 12 Moores Ind. Ap. 437-8, appeared to refer to them in guarded language; that Golap Chandra Sarkars comment on those two books required careful perusal, " for they not only afford ground to doubt whether any special authority should be attached to the Dattaka Mimamsa, but afforded ground for doubting that the Dattaka Chandrika may not have been a forgery " ; that the Dattaka Mimamsa came into existence within 300 years, " and is, no doubt, on some questions, considered as a high authority in the School of Benares " ; that it has put on the text of Vasishtha a construction at variance with that placed on it by the Mitakshara, which is not justified by the rule of the Mimamsa of Jaimini; that its importance consisted in that it (the Dattaka Mimamsa) and

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the Chandrika most materially influenced, and even biassed, Mitter and Jackson JJ. in 1 B. L. E. 221, and they, together with Mr. Colebrookes translation of the text of the Mitakshara, had the same effect on Markby J. and Garth C.J. in Ind. L. E. 3 Calc. 443, and on Westropp C.J. in 12 Bomb. H. E. Rep. 364. Then, after commenting on the decision of Mitter and Jackson JJ., the learned Chief Justice stated that neither Vasishtha nor Saunaka says that the gift of an only son is an offence which will cause the extinction of lineage in either the giver or the receiver, a gloss which was first placed thereon by the Dattaka Mimamsa; that, according to Jagannatha and others, the adoption of an only son is not imperatively pro hibited. If it were an illegal act, it has not been explained why the parties were not outcasted. Then, after criticising the various judicial decisions on this question, the final adjudication is that although the giving in adoption of an only son was, according to HINDU LAW , sinful, and to that extent contrary thereto, it was not void, and the doctrine of quod fieri non debet factum valet should be applied to such an adoption.

Mahmood J. arrived at the same conclusion ; he said he was relieved from the necessity of dealing with the various judicial authorities by the judgment of the Chief Justice; that those authorities depended on the interpretation principally, if not wholly, of earlier translations by European scholars of Sanskrit, such as the eminent Colebrooke, Sutherland, and others ; but since then three books bearing on the main question had been written by Sanskritists Mr. Mandliks Vyavahara Mayukha, Dr. Jollys History of the HINDU LAW of Partition, &c, Tagore Law Lectures, 1883, and Golap Chandra Sarkars Sastris, Tagore Law Lectures for 1888. He relied on those books in holding that the restrictions indicated in the texts were merely religious and moral, as distinguished from legal. Next he commented on the suggested conflict between his previous rulings in Gunga Sahai v. Lekhraj Singh (Ind. L. R 9 Allah. 253, 299, 302.) and Tulshi Ram v. Behari Lal . (Ind. L. R. 12 Allah. 328.) He observed that what he said in 9 Allahabad Series was that the beatitude of the adopting parent was the main, not the sole, object of adoption; that Mr. Mandlik had pointed out that this beatitude may be secured by other methods; that the Dattaka Mimamsa and the Chandrika are not so supreme and binding as to preclude the conclusion which the Chief Justice has arrived at in this case.

Knox J. also delivered a very full judgment, concurring with the Chief Justice; he also adopted the rule of interpretation as Laid down by the Mimamsa of Jaimini. Where a text is followed by a clause assigning a reason, "a doubt at once arises" whether such texts are simply commendatory or obligatory.

The Full Bench, having decided in favour of the validity of the adoption in question, did not decide the other points referred.

C. W. Arathoon, for the appellant, contended that the opinion expressed by the Full Bench was erroneous; that the adoption of an only son was void altogether; and that the doctrine of factum valet accordingly did not apply. He referred to all the authorities cited in the last case, and contended that the weight of authority—native, European, and judicial— preponderated in favour of the invalidity of such adoptions. Adoption is for the purpose of securing salvation to three generations see Menu, c. ix. ss. 137, 138. The religious and temporal aspects of the institution are inseparable Menu, c. ix. ss. 106, 107, 169. An adopted son must be one acquainted with the merit of performing ceremonies. The father has no power to give an only son because that son obtains for the grandfather and great-grandfather the solar abode or eternal bliss which in his default would fail them. See text of Vasishtha, 3 Col. Dig. p. 296. By giving an only son he creates the vacancy which adoption was intended to remedy see Menu, c. ix. v. 168; Mitakshara, c. 1. ss. 11, 12. The ancient texts are of divine origin. The new treatises of Mandlik and Golap Chandra Sarkar must not supersede them. The former (p. 497) proceeds on an erroneous basis, and assumes that the texts of Vasishtha and Saunaka are based " on obvious worldly reasons and nothing more."

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Mayne, and Boss, for the second respondent, Ram Pershad, argued that the validity of the rules of the Sanskrit lawyers on adoption depended on the degree to which the religious principles upon which those rules were founded had been accepted by the various classes of Hindus. In Bengal those principles were the bases of the whole HINDU LAW , and this explained the unanimity of pundits and Courts in following the rule which excluded an only son see per Mitter J. in Raja Upendra Lal Roy v. Srimati Rani Prasannamayi . (( 1868) 1 Beng. L. R. A. C. 224) In Madras the rule was Laid down by the pundits but habitually violated, because the Dravidian races did not adopt for religious purposes. The notion of punishment in a future state from which a father could be rescued by ceremonies performed by a son was unknown to them see Manual on Madras Administration, I., p. 71; Madras Census of 1891, xiii. p. 128. In Bombay the Full Bench decision in 14 Bomb. 249 was founded on an unreported case -between Lingayets on an application for a certificate. When, however, the same question arose in a regular suit in the same caste, it was discovered that the custom of the case was to make such adoption see 19 Bomb. 429. In the case now under appeal the parties are Agarwalas. The great majority of this caste are Jains see Sherrings Castes of the Hindus, p. 285, and Golap Chandra on Adoption, p. 452. The Jains reject the Vedas and perform no ceremonies for the dead see 10 Bomb. H. C. pp. 250, 253. The fact that Vasishthas rule was binding on Hindus by religion led to an inference that it was binding on persons who were only Hindus by name.

C. W. Arathoon, replied, contending that if the parties were Jains HINDU LAW was nevertheless applicable to them in its. entirety unless they proved a custom to the contrary see Sheo Singh Rai v. Mussumat Dakho (( 1868) 1 Beng. L. R. A. C. 224); Raghupati v. Krishnaji. (Ind. L. R. 14 Bomb. 249, 258, 259.)

1899. March 11. The judgment of their Lordships was delivered by

LORD HOBHOUSE. The first of these two cases, which comes from Madras, was argued in February, 1898, but the judgment was postponed for the hearing of the second, which comes from Allahabad. The reason was that each case raises a question of general importance, on which different views have been taken by different High Courts, and it was agreed on all hands to be advantageous that the two litigations should be under consideration at the same time. The Allahabad appeal was argued in the month of July last, and their Lordships are now prepared to state their opinions on both cases.

In the Madras case, the plaintiff sued as one in the line of succession to the last owner of an estate who had died without issue. The principal defendant was a Roy who had been adopted by the last owners widow with the consent of the family Gnatis or sapindas. The plaintiff claimed a declaration that the adoption was invalid. His main ground was that the adopted Roy was the only son of his father. The defendants shewed that the natural father of the Roy authorized his widow to give him in adoption in the way which was actually effected between the two widows, and that the plaintiff himself, in his character of sapinda, was a party to the transaction. In addition to asserting the legal validity of the adoption, they pleaed that the plaintiff was estopped by his concurrence in it.

The District Judge gave no opinion on the point of estoppel. He found that the law in Madras was settled, and he gave judgment in the following terms—

"The case illustrates how the people of this presidency have settled down under the law as enunciated by the Madras High Court so long ago as 1862, and reaffirmed in 1887, and it is impossible to say how many adoptions of only sons may have been made during the last thirty years on the faith of such enunciation of the law, and what innumerable rights might be disturbed by any contrary decision after such a lapse of time."

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The case was heard on appeal before the late judge Sir T. Muttusami Ayyar and Shephard J., who affirmed the decree below. The learned judges did not express any original opinion of their own on the main question. They thought that there; was no estoppel because at the date of the adoption nobody thought of its being illegal. As to its legal validity, they found that all the Madras decisions had been in its favour and that the Madras Courts were right in following an unbroken current of authority in that presidency notwithstanding differences of view in other Courts.

At this bar two points have been taken first, that the gift or reception of an only son in adoption is invalid in law ; and, secondly, that, if not invalid when the Roy is received by the adoptive father, or given by the natural father, it is so improper that in the absence of express authority given by a husband his widow has no power to effect it.

In the Allahabad appeal it is not necessary to make any statement of facts, because the decree appealed from depends entirely on the answer given to a question referred by a Division Bench of the High Court to a Full Bench. That question is as follows—

“The adoption of an only son having taken place in fact, is such adoption null and void under the HINDU LAW ? "That abstract question is the only one raised in the case lodged by the appellant, and the only one argued at this bar. The High Court answered it in the negative. Mr. Arathoon has contended in a learned argument that it ought to be answered in the affirmative.

As regards the second question raised in the Madras case, which is peculiar to that case, their Lordships feel no difficulty. The only authority for the argument of the appellants is the opinion of the late Sir Michael Westropp, delivered in the case of Lakshmappa v. Ramava (12 Bomb. H. C. 364), which was decided in the High Court of Bombay in the year 1875, and a report of which was, after long delay, inserted in the 12th Bomb. H. C, ,., p. 364.. That learned judge held that, assuming that a mans only son may be given in adoption by himself, yet if he has not expressly given to his widow an authority to make such a gift, it cannot be implied by law. Now, the authority of a widow to give or take in adoption differs in different schools of HINDU LAW Their Lordships are not retrying this Bombay decision. In Madras it is established, as the learned judge Muttusami Ayyar shews, that, unless there is some express prohibition by the husband, the wifes power, at least with concurrence of sapindas in cases when that is required, is co-extensive with that of the husband. That is certainly the simplest rule, and it seems to their Lordships most consistent with principle. The distinction taken by Westropp C.J. appears to have been quite novel, and also at variance with a decision by his predecessor, Sir Michael Sausse. There may be some peculiarity in the school of law which prevails in Bombay to support it, though it has not been brought to their Lordships notice, but if there is any such it does not apply to these parties in Madras. On this point, therefore, their Lordships agree with the learned judges below.

What remains to them is the difficult task of deciding the more general question which is common to both the appeals. The difficulty which first meets the eye is the variety of judicial opinions and of opinions in treatises, which during the last quarter of a century have been gathering into definite opposite channels in the different areas of jurisdiction. There are also other difficulties beyond. Many of the judicial decisions relied upon are embodied in imperfect reports or in mere notes of points. The question is complicated by the use of different modes of adoption not always clearly specified, and by the intrusion of special local or tribal customs. And the original authorities, on which all the conflicting opinions alike are based, are written in Sanskrit, which for many centuries has been a dead language known only to a few learned people, which hardly any of those who have been called to judgment have understood, the translations of which are more or less disputed, and of which it is averred probably with truth that its exact phases of meaning cannot be caught except by those who have

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studied closely and as a whole the language and the works of the particular writer under consideration. Their Lordships have, however, one advantage over their predecessors in these inquiries. The greater attention paid of late years to the study of Sanskrit has brought with it more translations of the sacred Hindu books, and closer examinations of texts pre viously translated. And in the Allahabad case especially, the; appellants side was argued in the High Court by Mr. Banerjee, who is stated by the Court to be familiar with Sanskrit, and it is the subject of a very elaborate judgment by Knox J., who is a student of Sanskrit, and, as he tells us, has paid special attention to the books of Manu and Vasishtha. Perhaps the most convenient course will be to set out the more important texts which have been brought into discussion, then to see how they have been treated by recent commentators and by judicial decisions, stating finally the conclusions to which their Lordships have with these aids been brought.

The most revered of all the Rishis or sages is Manu, who, though he says nothing specific on the point now in issue, is referred to as favouring one side or the other. The passages cited are as follows. They are in Cap. IX.—

"By the eldest son as soon as born a man becomes the father of male issue, and discharges his debt to his pitris or progenitors. That son alone by whose birth he discharges his debt to his forefathers and through whom he attains immortality was begotten from a sense of duty." He adds sentences to affirm the powers, privileges, and duties of the first-born, and his great importance in the family, vv. 106-109.

By a son a man obtains victory over all people, by a sons son he attains immortality, then by the son of that son he reaches the region of Brahma." v. 137.

Since the son delivers the father from the region called Put he was therefore called Putra by Brahma himself." v. 138.

Whom the mother or the father give with water a son in distress similar endowed with affection he is to be deemed a datrima one brought forth."

In the three last quotations their Lordships have followed the words of Knox J., who says that he has attempted to follow the text word by word without interpolating or taking away any particle, and that on that account his style is rough. (See Golap Chandra, Treatise on Adoption, p. 282.)

Near to Manu in point of antiquity and of authority comes Vasishtha, around whose utterance on the point in issue the greater part of subsequent comments has clustered. His writings have been translated by Dr. Buhler, and published in the work entitled Sacred Books of the East, which has been edited by Professor Max Muller. The passage in that translation is as follows, Ch. XV.—

(1.) Man formed of uterine blood and virile seed proceeds from his mother and his father as an effect from its cause.

(2.) Therefore the father and the mother have power to give, to sell, and to abandon their son.

(3.) But let him not give or receive in adoption an only son.

(4.) For he must remain to continue the line of ancestors.

(5.) Let a woman neither give or receive a son except with her husbands permission.

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Knox J. gives his own translation, which does not appear to differ substantially, though it does slightly in form, from that of Dr. Buhler.

Another ancient sage is Saunaka, of whom a text is quoted in the Dattaka Mimamsa of Nanda Pandita as follows—

Sect. IV., Par. 1. "In reply to the question as to the qualification of the person to be affiliated Saunaka declares By no man having an only son (eka putra) is the gift of a son to be ever made; by a man having several sons (bahu putra) such gift is to be made on account of difficulty (prayat natas). "

Next in time is Yajnavalkya, whose writings with comments by Vijnanesvara constitute the Mitakshara, a work of very high authority all over India. The material passages are as follows in Mr. Colebrookes translation, ch. 1, Sect. XI.—

Para.9. "So Manu declares He is called a son given (datrima) whom his father or mother affectionately gives as a son being alike [by class] and in a time of distress confirming the gift with water.’”

Para.10. "By specifying distress it is intimated that the son should not be given unless there be distress. This prohibition regards the giver [not the taker]."

Para.11. "For an only son must not be given [nor accepted for Vasishtha ordains Let no man give or accept an only son."

Para.12. "Nor though a numerous progeny exist should an eldest son be given, for he chiefly fulfils the office of a son as is shewn by the following text By the eldest son as soon as born a man becomes the father of male issue. "

The above-mentioned writings are all classed among the Smritis, which are held by orthodox Hindus to have emanated from the Deity, and to have been recorded, not like the Sruti in the very words uttered by that being, but still in the language of inspired men. They contain precepts whose authority is beyond dispute, but whose meaning is open to various interpretations and has been and is the subject of much dispute, which must be determined by ordinary processes of reason. The Dattaka Mimamsa stands on a different footing. It is not older than the 17th century A.D., and does not claim any but human origin. Indeed, its translator Mr. Sutherland says that it is, " as its name denotes an argumentative treatise or disquisition on the subject of adoption; and though from the authors extravagant affectation of logic the work is always tedious, and his arguments often weak and superfluous, and though the style is frequently obscure and not unrarely inaccurate, it is on the whole compiled with ability and minute attention to the subject, and seems not unworthy of the celebrity which it has attained." Moreover, it was written during Mahomedan rule and cannot be the work of a lawgiver or judge. The date of the Dattaka Chandrika is not certain; but it is at all events very much later than the Smritis, and it stands only on the footing of a work by a learned man. Messrs. West and Buhler in their valuable work on HINDU LAW , 3rd ed. p. 11, speak thus "The Dattaka Mimamsa and the Dattaka Chandrika, the latter less than the former, are supplementary authorities on the law of adoption. Their opinions, however, are not considered of so great importance, but that they may be set aside on general grounds in case they are opposed to the docrines of the Vyavahara Mayukha or the Dharmasindhu and Nirnayasindhu." This is spoken with special reference to Bombay or Western India. But both works have had a high place in the estimation of HINDU LAW yers in all parts of India, and having had the advantage of being translated into English at a comparatively early period, have increased their authority during the British rule. Their Lordships cannot concur with

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Knox J. in saying that their authority is open to examination, explanation, criticism, adoption, or rejection like any scientific treatises on European jurisprudence. Such treatment would not allow for the effect which long acceptance of written opinions has upon social customs, and it would pro bably disturb recognised law and settled arrangements. But, so far as saying that caution is required in accepting their glosses where they deviate from or add to the Smritis, their Lordships are prepared to concur with the learned judge.

The passages in the Dattaka Mimamsa are as follows they are contained in Sect. IV. Par. 1 is that which gives the saying of Saunaka already quoted. Par.2. "He, who has one son only, is eka-putra or one having an only son by such a one the gift of that son must not be made; for a text of Vasishtha declares an only son let no man give, &c. " Par. 6. The writer comments on the word " ever " as used by Saunaka thus, "In a time of calamity accordingly, Narada says, a deposit, a son, and a wife, the whole estate of a man who has issue living, the sages have declared unalienable, even by a man oppressed by grievous calamities although the property be solely that of the man himself.’ This text also regards an only son, for it is declaratory of the same import as the texts of Saunaka and Vasishtha." Par.8. The writer comments on Saunakas words, " By no man having an only son,” thus " From this prohibition the gift by one having two sons being inferrible, this part of the text (By one having several sons, &c.’) is subjoined, to prohibit the same by one having two sons also."

The Dattaka Chandrika (Sect. 1, Par. 27) only repeats Vasishthas saying, and couples it with the obligation to adopt a brothers son if there is one.

Their Lordships do not propose to spend much time in a close examination of the recent commentators. They have been very carefully sifted in the Indian Courts, and naturally so, seeing what was the paucity and obscurity of judicial authority until within the last thirty years or so the principal effect which they have on the mind is to shew the great variety and uncertainty of opinion on the question now in issue. The earliest of those referred to is Jagannatha, a learned Hindu lawyer, employed by Sir W. Jones to compile a digest. He thought that the prohibition in the Smritis is only moral and not legal. That also is the opinion of the two latest writers, both deeply versed in the Sanskrit language Mr. Mandlik, who appears to have translated the texts of Saunaka, and Mr. Golap Chandra Sarkar, who has written a treatise on adoption. Sir Thomas Strange, writing in the year 1830, expresses an opinion in the body of his treatise that the prohibition is monitory only, vol. i. p. 87. On the other hand, the weighty opinions of Mr. Colebrooke, Sir Francis Macnaghten, and Mr. Sutherland are thrown into the scale; and that of Strange J. is also cited to the same effect, and is supposed by some to express the latest opinions of his father, Sir Thomas Strange. But it may be observed that Sir Francis Macnaghten and Strange J. found their opinion on the wickedness of the act in question, and that the adoption of an oldest son is placed by Strange J. on precisely the same footing 0;S that of an only son, and is ranked by Sir F. Macnaghten an a heinous crime, though not so heinous as the adoption of an only son. Their Lordships think that the authority of recent text-writers must not be stated more favourably to the present appellants than is stated in the book of Messrs. West and Buhler. Expressing no opinion of their own, those learned writers say, "If he have but one son, the gift of that one is everywhere reprobated as a grave spiritual crime. By most the gift is thought invalid. Their Lordships turn now to the more solid ground of judicial decision.

In Madras the course of decision has been very simple. In 1862 the High Court decided that the adoption of an only son, however sinful, was valid in law. It has been shewn by Mr. Mayne that a previous decision then relied on was misapprehended by the learned judges. But that was not the sole ground of their decision; they also relied on learned opinions, and they agreed with those opinions. And the same High Court has since that time had the same question brought before it more than once—three times, it is stated in one of the judgments below. There has been no fluctuation

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in their decisions. It must be taken that the law in Madras has ever since been settled in favour of the present respondents.

In Allahabad also the condition of judicial decisions is simple. In 1879 the question was brought before a Full Bench of the High Court, consisting of Sir Robert Stuart and Sir Charles Turner, who were English barristers, and three eminent civilians, Pearson, Spankie, and Oldfield JJ. The Court decided in favour of the adoption, Sir C. Turner dissenting. In the year 1889 some doubts were expressed on the point by Straight and Mahmood JJ., and that circumstance, coupled with the delivery of adverse opinions by the High Courts of Calcutta and Bombay, led to the rather unusual course of referring the same question to a Full Bench, of which Mahmood J. was one. The result has been an unanimous decision, supported by judgments of the Chief Justice and Knox J., which are remarkable for research and fullness of treatment.

In Bengal there has been more fluctuation of opinion. The law was quite unsettled in the year 1868. It would be of little use now to examine the earlier decisions in the Sudder Dewani Adalut and the Supreme Court. That has been done with great care by Sir William Markby in a case about to be mentioned. The first case, which raised the exact question in the High Court, was heard in the year 1868 before Dwarkanath Mitter and Louis Jackson JJ. The judgment was delivered by Mitter J. After quoting passages from the two above-mentioned Dattaka treatises, the learned judge lays the law down thus "The institution of adoption as it exists among the Hindus is essentially a religious institution. It originated chiefly if riot wholly from motives of religion; and an act of adoption is to all intents and purposes a religious act, but one of such a nature that its religious and temporal aspects are wholly inseparable. By a man destitute of male issue only/ says Manu, must the substitute for a son of some one descrip tion always be anxiously adopted for the sake of the funeral cake, water, and solemn rites. It is clear, therefore, that the subject of adoption is inseparable from the Hindu religion itself, and all distinction between religious and legal injunctions must be inapplicable to it."

There is no doubt that this judgment has exercised very great influence on the controversy; and, indeed, if the learned judges fundamental position were sound, there could be no controversy at all. Let us assume for this purpose, though it is matter of grave dispute, that the learned judge is right in saying that adoptions originated in motives of religion, and not in the ordinary human desire for perpetuation of family pro perties and names. Still the question is whether certain precepts have a legal or only a religious bearing. What is there in the subject-matter of adoption which makes it clear that all precepts relating to it must bear a legal character? The learned judge does not discuss that question. He begs it, merely stating that his own inference clearly follows from Manus text. Their Lordships think that the doctrine propounded by him is equally opposed to a reasonable construction of the books apart from decision and to decided cases. Indeed, to shew how far the doctrine is from being universally applicable, it would not be necessary to go further than the passage which the learned judge himself cites from Manu, though of course differences may be suggested between prohibitory and mandatory injunctions. Manu prescribes adoption on the score of religion. According to Mitter J. this is necessarily a legal injunction, yet nothing is clearer than that there is no legal compulsion upon a Hindu to adopt a son, however irreligious it may be in him not to do it. There is not even any legal compulsion on his widow to do it, when he is dead and cannot have a natural son. But the principle Laid down is so important, goes so deep down to the root of these questions, and has exercised such influence, that their Lordships think it necessary to discuss it at length, for which this will be a convenient place.

Their Lordships had occasion in a late case to dwell upon the mixture of morality, religion, and law in the Smritis Rao Balwant Singh v. Kishori . (( 1898) L. R. 25 Ind. Ap. 69.)

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They had to decide whether a prohibition on alienation of property away from a mans family, certainly based on religious grounds, had a purely religious or also a legal bearing. They then said "All these old text-books and commentaries are apt to mingle religious and moral considerations not being positive laws, with rules intended for positive laws. In the preface to his valuable work on HINDU LAW Sir William Macnaghten says it by no means follows that because an act has been prohibited it should therefore be considered as illegal. The distinction between the vinculum juris and the vinculum pudoris is riot always discernible. " They now add that the further study of the subject necessary for the decision of these appeals has still more impressed them with the necessity of great caution in interpreting books of mixed religion, morality, and law, lest foreign lawyers, accustomed to treat as law what they find in authoritative books and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity never contemplated by the original lawgivers.

The late extension of the study of Sanskrit has apparently resulted not in weakening, but in strengthening the cited opinion of Sir William Macnaghten. Of course their Lordships do not presume to form any opinion on questions of Sanskrit grammar; but they observe that Mr. Golap Chandra, who is frequently referred to in the judgments below, contends as a matter of grammar that words (e.g., those of Saunaka) which have been translated in the imperative form of command should take that of recommendation. Mr. Mandlik insists on the same view, and Knox J. says that he originally took a contrary view, but has been brought round by the authority of Mandlik and another Sanskrit scholar, Mr. Whitney.

Let us see now how Mitter J.s principle accords with actual decisions. The controversy respecting eldest sons, whether or no they can be given in adoption, has a strong bearing on the present question. Manu attaches the highest importance to the character of an eldest son. The relevant passages from his Institutes have been quoted above.

No specific prohibition is contained in these passages, but the reasonable inference fro them is given in the Mitakshara in Ch. 1, Sect. XI., Par. 12, which has been already quoted. This express prohibition has been taken by some to be a legal rule, and has been enforced by modern writers of weight as before stated, and in legal decisions. It would certainly fall within Mitter J.s principle. But it is quite abandoned, all over India as their Lordships understand; and the prohibition is held to be a matter for religious consideration only. It was the subject of careful examination and express decision by Markby and Romesh Chander Mitter JJ. in the case of Janokee Debea v. Gopal Acharjea . (( 1877) Ind. L. R. 2 Calc. 365.)

Again it is Laid down that the giver of a son ought to have more than two sons. The text of Saunaka quoted above says that the gift is to be made by one having several sons (bahu putra). The Dattaka Mimamsa, Sect. IV. 8, lays it down that the Sanskrit word signifies more than two, and that Saunakas precept was introduced for the express purpose of excluding the inference that a man with two sons might give one in adoption. The Dattaka Chandrika, Sect. 1, 29 & 30, declares the same law. The precepts are precise, and yet their Lordships cannot find that anybody asserts them to be law in any but the religious sense.

Another precept is that a Hindu wishing to adopt a son should adopt the son of his whole brother in preference to any other person. That question came before this Board in the year 1878 in a case in which the Subordinate Judge had held the adoption to be invalid for violation of this precept, and the High Court were of a contrary opinion. This Board held that the terms of the precept were contained in both the Dattaka Mimamsa and the Dattaka Chandrika, and they are founded on the Mitakshara.

Nevertheless, they held that it is not a precept of law. They referred to the opinions of English text-writers to support them. No decision in point was cited, and probably there is none in the books.

One of the conditions for adoption Laid down by Manu in the passage first quoted from him is that there must be distress This is emphasized in the Mitakshara, Chap. 1, Sect. 11, Par. 10 "The son shall not be given unless there be distress,” which appears to mean that the giver must be in distress. 11 This prohibition," it continues, " regards the giver,” and then occur the words "not the taker,” apparently interpolated by the learned Benares lady who wrote under the name of Balambhatta. The Dattaka Mimamsa, Sect. IV. 20, says "No distress existing, the giver commits a sin on account of the prohibition." If then the giver commits a sin, the taker who enables him to do it cannot be free from sin; and if the commission of a sin makes the transaction void in law, there can be no gift and consequently no adoption. And yet nobody contends for the legal force of this prohibition. It does not appear that in cases of adoption any inquiry is ever made about the distress of the natural father.

It is clear that the principle Laid down so confidently by Mitter J. as paramount in cases of adoption is repeatedly repudiated in practice; and in the Bengal case next to be cited the learned judges, while following the conclusion of their predecessors, dissociated themselves from the fundamental reason assigned for it.

Moreover, this sweeping doctrine of Mitter J. is not consistent with the prevalence of exceptional customs or other interferences with the law. The extent to which the Smritis admit of special customs has not been argued in these cases, and their Lordships cannot easily form any judicial opinion about it. But in a discussion about the sources of HINDU LAW by Dr. Jolly, published in 1885 (see p. 33), that learned Sanskrit scholar states grounds for holding that customs are only recognised by the Smritis when they do not contravene Pi vine laws.

Mr. Arathoon has impressed upon their Lordships more than once during this argument that the texts he relies on are held to emanate from the Divine Power. If, then, that Power has said that certain modes of adoption shall be null and void, how can any human practices lawfully limit its operation? And yet the validity of local or tribal customs to adopt only sons is asserted by every jurist. In the Punjab such a custom is received as the general law of that large area, and it governs the relations of the eight millions or so of the Hindus (Jats, Brahmans, Rajputs, and others) who live there; and that, though the sources of their law are the same Smritis which are followed in other parts of India. The inference is that among numerous Hindu communities the prohibition of the Smritis on this point has not been received as invalidating the trans-action.

Again, if the religious and legal injunctions were co-extensive, it would place both courts of justice and legislatures in a very delicate position when dealing with such matters. Suppose that in this Madras case the Court had upheld the plea of estoppel it would have set up a judicial rule to bar the working of a Divine law. Suppose that the statutory six years had elapsed, and that the suit had been barred by time; then the Legislature would be interfering to bar the working of a Divine law. In each case a separation would have been made between those religious and temporal aspects which Mitter J. declares to be wholly inseparable. Yet the British rulers of India have in few things been more careful than in avoiding interference with the religious tenets of the Indian peoples. They provide for the peace and stability of families by imposing limits on attempts to disturb the possession of property and the personal legal status of individuals. With the religious side of such matters they do not pretend to interfere. But the position is altered if the validity of temporal arrangements on which temporal courts are asked to decide is to be made subordinate to inquiries into religious beliefs.

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No system of law makes the province of legal obligation co-extensive with that of religious or moral obligation. A man may, in his conduct or in the disposition of his property, disregard the plainest dictates of duty. He may prefer an unworthy stranger to those who have the strongest natural claims upon him. He may be ungrateful, selfish, cruel, treacherous to those who have confided in him and whose affection for him has ruined them. And yet he may be within his legal rights. The Hindu sages doubtless saw this distinction as clearly as we do, and the precepts they have given for the guidance of life must be construed with reference to it. If a transaction is declared to be null and void in law, whether on a religious ground or another, it is so; and if its nullity is a necessary implication from a condemnation of it, the law must be so declared. But the mere fact that a transaction is condemned in books like the Smritis does not necessarily prove it to be void. It raises the question what kind of condemnation is meant.

It is true that the learned judges Mitter and Jackson refer to the texts of the Dattaka Mimamsa and Chandrika. But according to the paramount principle Laid down by them those texts could only be read in one way. That principle is, in fact, the sole ground of the decision, and as it cannot be admitted the decision is deprived of weight.

The next case in Bengal was decided in the year 1878 by Garth C.J. and Markby J. (( 1878) 3 Beng.

L. R. 443.) In delivering judgment Sir W. Markby reviews with great care and discrimination the then existing authorities, judicial and non-judicial, and he shews that only in four cases had the point been brought before the highest courts of appeal in India. There had been no decision at that time in Allahabad. The Madras High Court supported the adoption so apparently did the Bombay High Court, for the judgment of Westropp C.J., which threw doubt upon the point, though delivered in 1875 was not reported as early as 1878. The learned judge states the ground of his decision thus “ It appears to me, therefore, that the vast preponderance of authority, if not the entire authority, in Bengal is against the validity of the adoption of an only son, and if we were to hold the adoption of the plaintiff in this case to be valid, it would be necessary to overrule both the carefully considered decision of Jackson and Dwarkanath Mitter JJ. and the equally careful decision of four judges of the Sudder Court. This, of course, could only be done by a full bench. But we could only refer the case to a full bench if there is a conflict of authority, or if we ourselves differ from these decisions. Having gone through all the cases with great care, I do not think it can be said that there is any such conflict of authority in Bengal as to justify us in referring the case to a full bench on that ground, and I am not prepared to refer the case to a full bench upon the ground that I myself think the adoption of an only son valid. On the contrary, on the best consideration I have been able to give to the authorities, I think such an adoption ought in Bengal to be held to be invalid wherever the effect of holding such adoption to be valid would be to extinguish the lineage of the natural father, and so to deprive the ancestors of the adopted son of the means of salvation."

This is a very instructive judgment and entitled on all grounds to great respect; and it is with great respect that their Lordships, being obliged to differ either from it or from other High Courts, proceed to note some points which detract from its weight. As to the vast preponderate of authority in Bengal, there were only two decided cases. One was before the Sudder Dewani Adalat and is reported in 3 Select Reports, p. 232. The report does not shew-any examination of the question, by the Learned judges themselves. Their decision appears to rest wholly upon the opinion of pundits, who in their turn content themselves with a simple citation of texts. The other decision rests entirely on a principle which is untenable, as Sir W. Markby himself shewed the year before in the case of Janokee Debea. (Ind. L. R. 12 Calc. 365.) Moreover, the Court in 1878 hardly addressed itself to the question why the injunctions relating to the only son are imperative and legal, while those which relate to the eldest son are only monitory or religious. In 1877 Sir W. Markby says that, while the latter prohibition is only monitory, the former is clear—refer, as their Lordships suppose, to the differences of expression in

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Colebrookes translation of the Mitakshara. In 1878 he intimates that the stronger objection to the adoption of an only son is based on religious grounds on which their Lordships remark that Manu ascribes a character to the eldest son which affords strong religious grounds against his adoption, and that they do not find themselves competent to put such grounds in the balance against one another, so as to decide which is the stronger.

On this point they add that there seems to have been a great deal of exaggeration used in urging the religious topic throughout this controversy, especially in later times. Manu says that by the eldest son as soon as born a man discharges his debt to his progenitors; and it is through that son that he attains immortality. According to him the son serves his fathers spiritual welfare at the moment of his birth. There is no intimation that if the Roy dies the next day, or fails to have a son, this service is obliterated. "Why then should it be so if the Roy is adopted? It is true that Manu attributes additional value to the first-borns son and grandson. It may be that such futher benefit is lost by adoption, as it would be by death; but that is a very different thing from depriving the ancestors of the adopted son of the means of salvation, which have been already attained. Vasishtha, whose text is the fundamental one, does not rest his injunction on spiritual benefit at all, but he says that the only son is to continue the line of his ancestors; one of the very commonest of human motives for desiring legitimate issue. Nor does he make any allusion to "Put " here, or, if Knox J. is right, elsewhere. If he was really thinking of the spiritual benefits of the sons ancestors as the ruling consideration, it is inexplicable that he should not have said so. Moreover, their Lordships asked during the argument why a man who had given a natural son in adoption could not afterwards, if he was so minded, adopt another; and neither authority nor reason was adduced to shew that he could not.

That is the state of authorities in Bengal. The question has never come before a full bench, and it seems to their Lordships that there is only one decision, namely, that of 1878, to which great weight is to be attached.

In Bombay, after a Division Bench had decided in favour of validity, the question was discussed before another .Division Bench in the year 1875 Lakshmappa v. Ramava . (1) The case was decided on another ground, as has been mentioned above. But the Chief Justice, Sir M. Westropp, delivered an elaborate judgment containing his reasons for holding the adoption of an only son to be invalid. Those reasons appear to have been adopted by the Court, including Sir M. Westropp himself, in a subsequent case which was decided in 1879 but has never been reported. In 1889 the question was referred to a full bench, who simply followed the unreported case See 14 Bomb. p. 249. Sir C. Sarjent, then Chief Justice, delivered judgment. He pointed out that prior to Lakshmappa v. Ramava (12 Bomb. H. C.364.) the decisions in Bombay were in favour of validity; that the judgment of Sir M. Westropp in that case was the first that treated the point with due consideration; and that as the opinion there expressed had been adopted by a full bench, it was not proper to review it. The decision was necessarily in favour of invalidity. The law in Bombay, therefore, rests on the authority of the unreported case of 1879, which itself rests on the reasoning contained in the judgment of 1875.

In that judgment the learned Chief Justice makes more elaborate reference to the Smritis than is contained in any judgment earlier than the present Allahabad case. He dwells emphatically on Colebrookes translation of the Mitakshara, shewing that with regard to the only son the expression "must not," and with regard to the eldest the expression u should not," is employed. He adds that the distinction is even more strongly marked in the Mayukha, which is received as a high authority in Bombay. On this point their Lordships interpolate again the remark that they are not retrying the Bombay decision, and that the effect of the Mayukha has not been argued before them. He then examines decisions by Bombay Courts prior to the establishment of the High Court, which certainly exhibit a confusion of legal opinion. The authority of the High Court up to 1875, though not perhaps

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very decisive, was in favour of validity. From this, and from the decision of the Madras Court, the learned Chief Justice differs. He cites the passages of Smritis and law books and English text-writers with which we have now been made familiar. And his decision apparently is founded on the language of Colebrookes Mitakshara and on the judgment of Mitter J. Their Lordships have already stated their reasons for thinking that the latter of these foundations is unsound. The value of the former will be examined presently. They have also stated above that the point actually decided in this case is a novel suggestion of the learned Chief Justice, and is unsustainable in principle, and unsupported by authority unless there be something peculiar to Bombay to support it.

Before leaving this judgment their Lordships ought to state their concurrence with the learned Chief Justice in his remarks on the so-called doctrine of factum valet. That unhappily expressed maxim clearly causes trouble in Indian Courts. Sir M. Westropp is quite right in pointing out that if the factum, the external act, is void in law, there is no room for the application of the maxim. The truth is that the two halves of the maxim apply to two different departments of life. Many things which ought not to be done in point of morals or religion are valid in point of law. But it is nonsensical to apply the whole maxim to the same class of actions and to say that what ought not to be done in morals stands good in morals, or what ought not to be done in law stands good in law. Sir M. Westropp has, not without cause, reduced the ambiguous maxim to its proper meaning.

Such was the state of judicial authority in India prior to the present cases. For as regards the Punjab, it is true that in the early days of the Chief Court judges have pronounced opinions in favour of the adoption under general HINDU LAW ; and in 1874 Melvill and Thornton JJ. pointed out that the turning point of the controversy was Mitter J.s judgment of 1868. But after the first reported case in 1867 the decisions there have turned on the popular customs into which the Government had the prudence to inquire immediately after the annexation, and which they made the foundation of law. The Punjab, therefore, may be omitted in our estimate of judicial authority. The reasons against the validity of the adoption of an only son ate contained in the three judgments of the learned judges, Mitter, Markby, and Westropp. The point has never come before thi3 Board for decision» It has been alluded to in two cases, but in so indirect a way that though the authority of the Board is relied on by both sides it is not available for either. The foregoing remarks represent all the light which has been thrown on the Smritis, to which, after all, we must recur to decide the question.

In addition to the remarks already made on the bearing of Manus texts, those of Knox J. upon his silence are worthy of attention. Manu mentions three conditions for a good gift of a Roy in adoption. The natural father must be in distress; the Roy must be " similar,” apparently meaning of the same caste with the adoptive father; and he must be affectionate. Nothing is said about his having brothers, which is now represented as a vital condition the breach of which is a sin, a heinous crime, as some writers have called it, and as annulling the transaction. It seems very unlikely that Manu should either have viewed it in that light, or, with his very high notions of the value of the first-born, should have overlooked the point altogether.

The crucial text is that of Vasishtha. He first states the parents power in the most sweeping terms, and derives it from causes affecting every child that is born into the world. The power is to later ideas whether Hindu or English, an extravagant one; but it accords with what we know of the early stages of other nations, and probably did not shock the con temporaries of Vasishtha, though the sage Apastamba, who is perhaps of equal antiquity, denies the right to give away or sell a child (Prasna II., Patala 6, Khanda 13, paras. 6-11). A man may sell his son—no restriction of purpose is expressed—or he may even abandon him. But then comes an injunction expressed in terms which may amount to a command, or may be only a recommendation—namely, that an only son should not be given or accepted. The first remark to be made upon this is akin to the one just made upon Manu. If Vasishtha

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intended to except an only son from the fathers power to give in adoption, why did he not say so? It would have been much more simple. But he first states the power, and far greater powers, in the broadest terms, and then adds a qualification which is, to put it at the highest, in ambiguous terms. That looks much more like an appeal to the moral sense not to exercise the power than a denial of its existence. In this respect the case resembles that of the fathers power to alienate family property—which, indeed, is the light in which Vasishtha seems to regard a son. The power is given, while the action is condemned in terms consistent with actual prohibition. After long controversy it has been settled by a great preponderance of Indian authority, culminating in a decision by this Board, that the power exists, and that the prohibition, though a solemn warning as to the spiritual responsibility of exercising it, is not efficacious in law.

In examining this question their Lordships are again at great disadvantage in not knowing Sanskrit. In the absence of agreement among Sanskrit students they cannot adopt the representations made, though by learned men, to the effect that, as a matter of grammar, Vasishthas injunction imports admonition rather than command. So with respect to what has been called "Jaiminis rule," which is so much relied on by Edge C. J. That author, who wrote in the thirteenth century, appears to have been received as a high authority in the interpretation of Smriti texts. He lays down the rule that all precepts supported by the assignment of a reason are to be taken as recommendations only. That, if sound, would be conclusive as to Vasishthas text. But it is rather startling, and a very intimate acquaintance with the Smritis would be needed before admitting its truth. It has not been brought forward in any case prior to this case from Allahabad. It may, however, fairly be argued that one who, having the power to give an absolute command, gives an injunction not expressed in unambiguous terms of absolute command, but resting on a reason, is addressing himself rather to the moral sense of his hearers than to their duty of implicit obedience. So far Vasishthas reason, founded as it is on temporal and not on religious considerations, gives some, though not very strong, support to the respondents theory.

The text of Saunaka is open to two obvious remarks. One is that the injunction not to give an only son is couched in the same terms as the injunction to give a son if there are more than two. The latter of these cannot possibly be obligatory. The other remark is that, as Nanda Pandita in the Dattaka Mimamsa points out, Saunaka in effect prohibits a gift in adoption when there are only two sons; and that is a prohibition which has never been regarded as obligatory. Saunaka does not help the appellants, but rather lends weight against them.

Then comes the Mitakshara. We have seen that Sir M. Westropp emphatically, and Sir W. Markby possibly, relies on the difference of expressions in Colebrookes translation. The passages from their judgments have been quoted above, and so have the passages from the Mitakshara, Sect. 1, Ch. XI. paras. 10, 11, 12. Now it has been brought out in the arguments that precisely the same expressions of injunction are used by the author in these three paragraphs. To fortify their knowledge their Lordships have inquired of one of the most eminent of Sanskrit scholars, Professor Max Muller, and he has courteously informed them that as a matter of fact the three expressions are identical, and as a matter of grammar they are, in his judgment, equally capable of expressing obligation or recommendation. Now paragraphs 10 and 12 have been observed on before. t has been placed beyond dispute in point of law that neither is obligatory It requires some good reason to shew why, when the same expression is used in three consecutive sentences, it should be construed one way in the 1st and 3rd and another way in the middle one. No such reason has been given. It is an unfortunate thing that in translating a law book Colebrooke should have used different English words to represent the same Sanskrit word. He has certainly misled at least one judge in a leading case. As the matter is now shewn to stand, the Mitakshara must be taken to bear strongly against the appellants.

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In intimating that Sir M. Westropp was misled by Colebrooke, their Lordships have not overlooked the fact that in 1889 Sir C. Sarjent thought that Sir M. Westropp was aware of the state of the Sanskrit text. It seems, however, next to impossible that Sir M. Westropp should have known that Colebrookes variations of expression were not authorized by the original, and should have said nothing about it, seeing that it deprives his emphatic reference to those variations of all meaning. If indeed he knew the state of the Sanskrit tent, and thought it so immaterial as not to deserve notice, he practically treated Colebrooke as the original authority, and his reasoning does not thereby gain, but loses in force.

The material passages in the two Dattaka books have been indicated before, and remarks have been made on those which quote and comment on Saunaka. It seems to their Lordships that the authors, who bring in the older texts at every turn, did not mean to do more than repeat and enforce them. If they were clearly laying down any additional precepts or authoritative interpretations of ambiguities, then, though, as Knox J. points out, such comments should be received with some caution, they should also be received with due regard to the authority which the books have acquired. But on this topic the writers seem anxious to found themselves entirely on the Smritis and to refer their readers back to them. Certainly on the crucial point now in issue they throw no light at all. They do not touch the question whether the injunction not to adopt only sons is a matter of positive law or only addressed to the moral sense. And yet Jaiminis treatise, written some centuries earlier than the Dattaka Mimamsa, must have made the later of the writers, if not both, familiar with the importance of that distinction.

It is, however, worth while to observe how Nanda Pandita deals with the consequences of a forbidden adoption. He quotes Manus requirement that the adopted son should be "similar," and he says (Sect. II., Pars. 22, 23), "Hence it is established that one of a different class cannot be adopted as a son. "In Sect. III. he recurs to that prohibition, and asks, " Should this rule be transgressed, what would be the case ? M Then he deduces from texts of Saunaka and Katyayana that the adopted son shall not share in the inheritance, but shall be entitled to food and raiment. So that the adoption is not void, but the son of the wrong class is reduced to a claim for main- tenance only. With this exception, which favours the appellants theory, it seems to their Lordships that these two treatises leave the question exactly where it stands on the earlier authorities.

From both the Courts below we lRam that there is no resentment excited by this kind of adoption. The District Judge of Godavery says, "the people have settled down under the law enunciated in 1862," He can hardly recollect the state of things prior to 1862, but his statement of the present state of things is founded on personal knowledge. Whether the people have settled down under the High Court decision, a result which is usually of very slow growth if it takes place at all, or whether, as is more probable, that decision was in accordance with the ordinary existing ideas and practice, we are told that in point of fact there is no conflict between the declared law and the feelings of the people. Nor is there any indication that there ever was such a conflict. In Allahabad the parties are Agarwala Ranias of Benares, who are, as two of the learned judges below state, specially careful of caste and religious observance. The adoption was twenty years old, and no caste penalties had followed it. These things do not prove a custom, but they do tend to prove that among orthodox Hindus the adoption of only sons has never been so inculcated as a sin by their teachers as to excite abhorrence or social hostility, such as we know to follow some other breaches of their religious laws. That the practice is a frequent one is shewn by the frequency of litigated cases, which must be quite insignificant in number as compared with those that actually occur, and from the establishment of customs authorizing it in various places. This is not one of the cases in which people are tempted by appetite to break an acknowledged law. It is inconceivable that the choice of an only son for adoption can in any large number of cases proceed from any other cause than a conviction of its suitability to the circumstances. That is a family matter

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which a wise lawgiver, while warning parties of their spiritual responsibility, would yet leave it possible for them to do. The Hindu sages appear to have taken that course in this and kindred matters.

Their Lordships, then, have a case before them of which the broad outlines are as follows. Old books, looked on as divine, give to the father plenary powers over his sons. The same books discountenance the giving of an only son in terms which may be construed as a positive command, making the gift void or as a warning pointing out the mischief of the act, but leaving individual men to do it at their peril. The books contain no express statement which kind of injunction is meant. The practice of such adoptions is frequent. Over some substantial portions of Hindu society it is established as a legal custom, whatever may be the general law. In other very large portions it is held to be part of the general HINDU LAW . Nowhere is it known to be followed by hatred or social penalties. Pausing there, the case is one in which, if the authoritative precepts are evenly balanced between the two constructions, the decision should be in favour of that which does not annul transactions acceptable to multitudes of families, and which allows individual freedom of choice.

But what says authority ? Private commentators are at variance with one another; judicial tribunals are at variance with one another; and it has come to this, that in one of the five great divisions of India the practice is established as a legal custom, and of the four High Courts which preside over the other four great divisions, two adopt one of the constructions and two the other. So far as mere official authority goes there is as much in favour of the law of free choice as of the law of restriction. The final judicial authority rests with the Queen in Council. In advising Her Majesty their Lordships have to weigh the several judicial utterances. They find three leading ones in favour of the restrictive construction. The earliest of them (in Bengal, 1868) is grounded on a palpably unsound principle, and loses its weight. The second in time (Bombay, 1875) is grounded in part on the first, and to that extent shares its infirmity, and in part on texts of the Mitakshara, which are found to be misleading. So that it, too, loses its weight. The third (Bengal, 1878) is grounded partly on the first, and to that extent shares its infirmity; but it rests in great measure on more solid ground, namely, an examination of commentators and of decided cases. It fails, however, to meet the difficulty of distinguishing between the injunction not to adopt an only son and other prohibitive injunctions concern ing adoptions which are received as only recommendatory; the only discoverable grounds of distinction being the texts of the Mitakshara, which are misleading, and the greater amount of religious peril incurred by parting with an only son, which is a very uncertain and unsafe subject of comparison. The judicial reasoning, then, in favour of the restrictive construction is far from convincing. That the earliest Madras decision rested in part on a misapprehension of previous authority has been pointed out; and the Madras reports do not supply any close examination of the old texts, or any additional strength to the reasoning on them. The Allahabad Courts have bestowed the greatest care on the examination of those texts, and the main lines of their arguments, not necessarily all the byways of them, command their Lordships assent. Upon their own examination of the Smritis, their Lordships find them by no means equally balanced between the two constructions, but with a decided preponderance in favour of that which treats the disputed injunctions as only monitory and as leaving individual freedom of choice. They find themselves able to say with as much confidence as is consistent with the consciousness that able and learned men think otherwise, that the High Courts of Allahabad and Madras have rightly interpreted the law and rightly decided the cases under appeal.

Their Lordships have been reminded of the length of time for which the law must have been considered as settled in Bombay and Calcutta. A similar consideration affected the Courts of Madras and Allahabad, and is remarked on by both. The time is not very long in any of the four provinces, but it is long enough to increase the gravity of the questions in these appeals. In estimating the weight of reasoning in the various litigated cases, their Lordships have not forgotten the weight of the actual decisions that they represent the opinions of eminent and responsible men, arrived at after public and

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anxious discussion, carrying with them an authority not legally disputable in the provinces under their jurisdiction, and, it may be, affecting many minds and many titles to property or to personal status. Such decisions are not lightly to be set aside. A Court of Justice, which only declares the law and does not make it, cannot, as the Legislature can, declare it with a reservation of titles acquired under a different view of it. But their Lordships are placed in the position of being forced to differ with one set of Courts or the other. And so far as the fear of disturbance can affect the question, if it can rightly affect it at all, it inclines in favour of the law which gives freedom of choice. People may be disturbed at finding themselves deprived of a power which they believed themselves to possess and may want to use. But they can hardly be disturbed at being told that they possess a power which they did not suspect and need not exercise unless they choose. And so with titles. If these appeals were allowed, every adoption made in the North "West Provinces and in Madras under the views of the law as there Laid down may be invalidated, and those cases must be numerous. Whereas, in Bengal and Bombay the law now pronounced will only tend to invalidate those titles which have been acquired by the setting aside of completed adoptions of only sons, and such cases are probably very few. Whether they demand statutory protection is a matter for the Legislature, and not for their Lordships to consider. It is a matter of some satisfaction to their Lordships that their interpretation of the law results in that course which causes the least amount of disturbance.

Their Lordships will humbly advise Her Majesty to dismiss both appeals, and the appellants must pay the costs.