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Civil Procedure for re-trial on the merits, practically took no steps whatever to
defend the suit. Held that he could not afterwards plead, by way of objection
to ezeoution of the decree, matters which ought to hava formed part of his
defence to the suit, had he chosen to defend it. Ram Kirpal v, Rup Kuari (1)
referred to.

[D., 19 B. 821 (825).]

[H.B, This is an off-shoot of 10 A. 289 supra. Ed,]

THE facts of this case sufficiently appear from the judgment of the

First Appeal, No. 9 of 1890, from a decree of Rai Piari Lai, Subordinate Judge of
Meerut, dated the 12th November 1889.

(1) 6 A. 269.



1891 Mr. T. Gonlan and Pandib Sundar Lai, for the appellant.

DEC. 2. Mr. Abdul Raoof, for the respondents.


LATE EDGE, C.J., and TYRRELL, J. This is an appeal arising out of the

ClVIL execution of a decree. One Aladad Khan brought his suit against Ismail

' Khan and others in which he claimed possession of [65] his share of his

14 A. 64= father's estate. His suit was dismissed in the first Court on the finding
11 A.W.N. that he was illegitimate. It finally came in appeal before this Court. Aladad
1891) 221. Khan was the appellant, and during the pendency of the appeal in this
Court, Lala Kishen Sahai, who is the appellant in this execution-appeal,
presented a petition on the llth May 1887 to this Court, alleging that he
was the purchaser of the property in suit, and asking to be made a respond-
ent in the case, the case being the appeal. On the same day this Court
passed an order under ss. 372 and 582 of the Code of Civil Procedure,
adding him as a respondent in the suit. The result of the appeal here
was that on the 7th April 1888 this Court allowed the appeal, holding
that the plaintiff, Aladad Khan, was legitimate, and the suit was remanded
under s. 562 of the Code of Civil Procedure for trial on the merits. Now,
as we have said, that order of remand was made on the 7th April 1888.
Kishan Sahai was a party to that order of remand. The 29th January
1889 was fixed in the Court below, we assume, for the hearing of the case,
and on the 12th of that month Kishan Sahai presented an application
(document No. 11) in which he asked for two months' time on the ground
that he had nob his documentary evidence ready. On the 15th January
1889 the Subordinate Judge passed an order allowing Kishan Sahai one
month's time and fixing the hearing for the 6th March 1889. The day
before 6th March, viz., on the 5th March, Kishan Sahai presented an
application alleging that he had been induced by false representations of
the plaintiff, Aladad Khan, to advance the money on the property, and
asking that he might be brought in as a party to the suit under s. 32 of
the Code of Civil Procedure, and be allowed to put in a defence, and that
issues might be framed and the case tried as against him. On the 6th
March 1889, the Subordinate Judge rightly held that as the High Court
had made him a party to *he suit, by its order to which we have referred,
he must be regarded as a party until his name should be struck off, and
that his position was not that of a party merely to the appeal, and refused
the application. Now Kishan Sahai, if he had chosen to do so, could long
before the 5th March 1889 have filed a written statement raising any
defence which he [66] had or thought he had. The suit as against him
commenced from the time when he was made a party to it, and, for the
matter of that, if he had been so disposed, he might have filed his written
statement in this Court even during the pendency of the appeal. Kishan
Sahai does not appear to have taken any steps prior to the Sbh March
1889 to file a written statement, either in this Court or in the Court
below, and it is to be observed that in the petition which he presented tq
this Court upon which the order of the llth May 1887 was passed, he
merely alleged his title as that of a purchaser holding a sale-certificate.
Ultimately, the Subordinate Judge, on the re-trial of the suit under the
order of remand of this Court, decreed the plaintiff's claim for possession.
When the plaintiff proceeded to execute that decree, Lala Kishna ' Sahai
filed objections, seven in number, only one of which, namely, No. 6,

* Sea 10 A. 289. ED,



14 All. 67

is relied on here ; indeed, there is nothing in the other objections. Now as 1891
to that, Lala Kishan Sahai should have raised as a defence the matter alleged DEC. 2.
in that paragraph 6, if it amounted to a defence at all. He should have -
done so either in this Court when the case was here or at the latest in the APPBL-
Court below in proper time. Under the circumstances, we are cf opinion LATB
that it is a case which falls within the principle of explanation H of s. 13 CIVIL.
of the Code of Civil Procedure. Although s. 13 may nob in terms apply,
by reason of the matter not having been decided in another suit, still, the 1* * M*
Privy Council in an analogous case has told the Courts in India that the ** A.W.H.
principle of law underlying s. 13 ia to be applied to proceedings in the (1891) 221,
execution of decrees. The case to which we refer is Ram Kirpalv. Rup
Kuari (l). In fact, until the Subordinate Judge ^as on the eve of decid-
ing the suit before him on remand, Lala Kishan Sahai never suggested
apparently any such defence as" that shadowed forth in paragraph 6 of his
objections. Y/e dismiss this appeal with costs.

Appeal dismissed.

14 A.

67 (F.B.) = 12 A W.N. (1892) 161.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight,
Mr. Justice Mahmood, and Mr. Justice Knox.

BENI PRASAD (Plaintiff) v. HARDAI BIBI AND ANOTHER (Defendants. )*

[4th February, 1892.]

Hindu Law Benares School -Adoption Adoption of only son Maxim, quod fieri non
debuit f factum valit.

According to the Benares School of Hindu Law, the giving in adoption of an
cnly son is sinful, and to that extent contrary to the Hindu Law ; but the
adoption of such a son, having tr.ken place in fact, is not null and void ; and
the maxim quod fieri non debuit t factum valet, is applicable and should be applied
to such an adoption.

So held by the Full Bench. Hanuman Tiwari v. Chirai (2) approved and

[R., 17 A. 294 ; 24 B. 367 ; 1 Bom. L'.B. 144 (152) ; 3 O.C. 129 (135).]

IN this case the following questions were referred to the Full Bench
by Mahmood and Young, JJ. :

" 1. The adoption of an only son having taken place in fact, is such
adoption null and void under the Hindu law ?

" 2. If so generally, does subsequent birth of sons to the natural
parents of the adopted son, have retrospective effect of validating the
adoption ?

" 3. 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 ?"

It was stated in the order of reference that, in consequence of doubts
having been cast on the correctness of the ruling of the Full Bench in
Hanuman Tiwari v. Chirai (2), it was desirable that that ruling should
be reconsidered by the whole Court.

^Ir.Dwarka Xath Banerji and Munshi Juala Prasad, for the appellant.

3tlr. Jogindro Nath Chaudhri and Munshi Kashi, Prasad, for the

First Appeal No. 35 of 1838.
(1) 6 A. 269.

t For "debuit" read "debet."
(2) 2 A. 164,




FEB. 4. [68] EDGE, C.J. Three questions have been referred for the opi-

' nion of the Full Bench. I propose to consider the first question, and

D that only. It i?, " The adoption of an only son having taken place in

BENCH, "fact, is such an adoption null and void under the Hindu Law ? "
14 A 67 ^ De adoption m question was one in the dattaka form, and the

(F B )<= part' 68 were Agarwala Banias of Benares.

12 i W N ^ e Q ue8 ^ on i s one as k which there has been and is much difference

(1892) 161 ' ^ Pi n i ori m ^ ne Courts in India. It is not suggested, and, indeed, I am
satisfied that it could not be suggested, that there is, apart from the written
sacred law of the Hindus, any custom which would make such an
adoption void. Nor is it suggested, that the texts of the Hindu Law, or
the passages in the books of the Hindu commentators, which have been
regarded by some as imperatively prohibiting the adoption of an -only son,
were founded on a custom. No custom in Banares to make such an adop-
tion has been alleged. Consequently, the answer to the question in this
case does not depend on any custom, and must be sought for in the written
law of the Hindus. The question is one surrounded by much difficulty.
The difficulty mainly consists in ascertaining what is the true and reason-
able construction to be put on certain texts of the sacred law of the Hindus,
and upon certain passages in the works of Hindu commentators, and
further in ascertaining how far such passages can safely be taken as
expressing what the Hindu Law, as accepted by the School of Benares, is
on this subject. The difficulty is enhanced by the fact that the texts and
passages are in Sanskrit, and that some Sanskrit scholars are of opinion
that the earlier translations into English of some of those texts and
passages are incorrect and are in fact misleading.

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

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

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

For " debuit " read " debet,"


Ib is beyond doubt that the Code of Manu, in which adoption is 1892
treated of and recommended in the case of a sonless Hindu, does not FEB. 4.
contain any prohibition or recommendation against the. adoption of an
only son. So far as I have been able to ascertain, it is nowhere said in FULL
express language in any of the books of the sacred law of the Hindus or in BENCH,
any of the Hindu commentaries that the adoption of an only son is void.

The earliest text upon which this contention, which we have to
consider, has ariseu is one of Vasistha. It is mainly on that text, or,
more correctly speaking, as I hope to show, on a part only of it, and *
partly on a text of Saunaka that those Hindu commentators who have v!892> 181.
regarded the adoption of an only son as imperatively prohibited, have

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

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

A VII-53


1892 out at page 74 of Golapchandra Sarkar'a Hindu Law of Adoption. As to
FEB. 4. the Mimansa philosophy of Jaimini, Mr. Golebrooke said

' The disquisitions of the Mimansa bear, therefore, a certain resem-
' blance to juridical questions, and, in fact, the Hindu law being blonded
BENCH. ' with the religion of the people, the same modes of reasoning arc appli-

' cable, and are applied to the one as to the other. The logic of the

U A. 61 Mi man8a j a the logic of the law ; the rule of interpretation of civil

(F.B.)= an( j. re ijgj oug ordinances. Each case is examined and determined

12 A.W.N. ' upon g Qnera i principles ; and from the cases decided the principles

92) 161. may k Q co u ec t e( j - A well ordered arrangement of them would con-
' stitute the philosophy of law ; and this is, in truth, what has been
1 attempted in the Mimansa .... Instances of the application of reason-
1 ing, as taught in the Mimansa, to the discussion and determination
1 of juridical questions, may be seen in two treatises on the Law of
' Inheritance, translated by myself, and as many on Adoption, by a
' member of this Society, Mr. Sutherland. (See Mitakshara, on Inberi-
' tance, 1, 1, 10 and 1, 9, 11, and 2, 1, 34 ; Jimuta Vahana, 11, 5, 16-19.
' Datt. Him. on adoption 1,35-41 and 4, 65-66 and 6, 27-31. Datt
1 Ghand 1, 24 and 2, 4.) ' Golapchandra Sarkar in his Hindu Law of
Adoption, page 74, gives much useful information as to the Mimansa
of Jaimani and also as to the Vedanta. He there says, Mimansa,
' however, is the name of a School of Hindu philosophy founded by Jaimini,
' the object of which is to establish the cogency of precepts contained
' in the Scripture, and to furnish maxims of interpretation, by means
'of the rules of reasoning.' [72] And further on at page 74 he says,
' The Vedanta School of philosophy the founder of which is Vyasa, is
' also denominated Mimansa, and in order to distinguish it from Jaimini's
' philosophy, the Vedanta is called the Uttara or posterior Mimansa ;
' and the other, the Purva or prior Mimansa. This division is similar
'to that between the Vedas and the Upanishads and based upon the
' same principle ; the Mimansa of Jaimini deals with the practical or
' ceremonial precepts ; whereas that of Vyasa relates to the theroetical
'or theological precepts contained in the Upanishads. But as the school
' founded by Vyasa has a distinct name of its own, the word Mimansa
' when used without qualification means Jaimini's philosophy. The later
, ' Mimansa is supplementary to the prior ; and they are parts of one

' whole. The two together comprise the complete system of interpre-
' tation of the precepts and doctrines of the Scriptures, both practical and
' theological. The rules furnished by them are followed by the commen-
' tators as authoritative while discussing doubtful questions of law.' I have
referred thus at length, by giving the above quotations, to the Mimansa of
Jaimini or the Purva Mimansa, as it is desirable to keep in mind that the
rules of the Purva Mimansa, although they may sometimes have been over
looked or not attended to by Hindu as well as English commentators and
text-writers and by English translators, are no new rules of construction
but are authoritative rules for the construction of texts of the sacred law
of the Hindus.

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

After giving his translation of the text of Vasistha, which I have already
quoted, Mr. Mandlik says ' This text on the most approved principles



1 of criticism must aho be treated as a recommendatory one, inasmuch 1882
4 as it contains a precept that is intended [73] fora certain specified 'ifeB. 4.
1 purpose. It is a rule of the Purva Mimansa that all texts supported by
4 the assigning of a reason are to be deemed not as vidhi but simply as PL .
4 artha-vada (recommendatory). When a text is treated as an artha-vada, BEEK3H.
1 it follows that it has no obligatory force whatever. Sahara Svamin con- - - .
4 structs an adhikarana (a topic) on this head, which he calls hetumanni- ^.f- 67
1 gadadhikaranfi (a topic in regard to tsxfcs which contain a clause contain-
1 ing the reason of the precept) out of five sutras of Jaimini, &o.'

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

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

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

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

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

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

It is impossible to be certain now to what extent the Code of Manu,
as we have it, is an abridgment of the original, or whether those texts
which it now contains are exactly as they were when it was first

(1) 12 A. 328.


1892 promulgated ; but of its antiquity and of its pre-eminent authority amongst

FEB. 4. the Hindus there can be no doubt. It appears to me that sitting here as

a Judge to decide a question of Hindu Law, it is not for me to consider

I?ULL whether Manu was a mythological or real being, and that I must, as

BENCH, far as possible, approach the subject with which we have to deal in the

frame of mind of an orthodox Hindu.

According to Manu himself, he was a son of Brahma, and received
(E.B.).= from Brahma the Code which he communicated to the ten sages,
A.W.N. j^ onQ Q f wnorrij Bhrigu, it was recited and handed down to posterity.
(1892) 161. Mr.Mandlik is of opinion that a considerable time must have elapsed between
Manu and his compiler, Bhrigu. According [75] to the Hindus, Manu
was the first and -principal of the Eishis or sages and lawgivers who com-
posed the Smritis, which are believed to contain the precepts of the
Divinity as banded down by memory and tradition and recorded from the
recollection of the sages. The Smritis are not supposed to contain the
ipsissima verba of the Divinity as directly imparted by the Divinity to the
Eishis, but those words as they were remembered and handed down by

Whether the Code of Manu was the result of divine inspiration to him,
or was the record of tradition, or was partly one and partly the other, inter-
mixed or not with precepts originated by himself, or whether it is or is
not now as it originally was, it is most remarkable that although it deals
with the subject of adoption, it contains no prohibition against the adop-
tion of an only son, and that so far as has been suggested in argument;
before us or I have been able to ascertain, such prohibition, if on the true
construction of the text of Vasistha such text is a prohibition, appears
first in that text of Vasistha. If the Code of Manu, as we now have
it, is in an abridged form, it is to the highest degree improbable that those
who abridged the original Code would have left out a portion of the
original text containing a prohibition so important to the souls of Hindus
from the point of view of those who contend that the adoption of an only

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 63 of 155)