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son is void, if such a prohibition in fact was to be found there. By those
who contend that such an adoption is void, it is not suggested that the
imperative prohibition, if there is one, is the result of any custom which
grew up after the time of Manu, but it is insisted that it is and has always
been a vital and fundamental principle of the Hindu sacred law, any
infraction of which carries with it the terrible consequences of depriving
not only the giver and the acceptor of the only son in adoption, but the
gouls of their respective ancestors of all means of attaining to the ultimate
heaven of the Hindus. So far as I can ascertain, there is nothing in Vasistha,
the Mitakshara or elsewhere to indicate that the Code of Manu ever con-
tained any such prohibition. It is difficult to understand that Manu
when recommending and authorising adoption should have omif.ted any
[76] reference to a prohibition to the adoption of an only son if according
to the Divine law, as revealed or known to him, such an adoption was ille-
gal and fraught with sueh momentous c6nsequence to the souls of Hindus
as it is contended it has. Vasistha does not appear to have been a
contemporary of Manu, who is frequently quoted by Vasistha. Mr, Mandlik
is of opinion, and apparently on good grounds, that the Smritii of Vasistha
is very ancient and was composed before the compilation by Bhrigu of the
present Code of Manu. (Mandlik's Hindu Law, pages 328 and 329.) If that
view be correct it is still more difficult to understand why, on the assump-
tion that the text of Vasistha contains a positive and imperative prohibition
against the adoption of an only son, the compilation by Bhrigu of the

420



YII] BENI PRASAD V. HARDAI BIBI 14 All. 77

Code of Manu should contain no reference to what would be and must 1892

then have been known to be a fundamental prohibition of the Hindu divine FEB. 4.
law. The Smriti of Vasistha was known to Bhrigu (see Mandlik's Hindu
Law, page 329). The only conclusion to which I can come is that the FULL

original texts of Manu did not contain any prohibition against the adoption BENCH,
of an only son, aud that no such prohibition had been revealed to or was

known to him.

(P B ) =
Vasistha undoubtedly was one of the Rishis, and his texts are of very ^ ^ w ^

great authority as presenting divine precepts recorded from memory or , 18g2 j jjj
tradition, but in the words of Vasistha, and not in the actual words of the
Divinity.

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

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

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

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

Mr. Mandlik points out that the Sanskrit . word which he has
translated in both instances in that text as "should 1 ' is capable of meaning
should be done," "must be done" or is "proper to be done," and he points
out that if that Sanskrit word means "must" in that portion of the same
text which relates to the adoption of an only son, it ought to read as
"must" in that portion of the same text which relates to a man having
several sons. It has never been suggested, so far as I am aware, that the
Hindu Law imposes any imperative duty on a father to give one of his
sons in adoption. Mr. Mandlik at pages 498 and 499 adduces a further
and apparently a strong argument to show that Saunaka himself regarded
the precept as to the adoption of an only son as purely directory.

421



14 All. 78 INDIAN DECISIONS, NBW SERIES [Yol.

'1892 [78] Golapohandra Sarkar in his Hindu Law of Adoption at page 285

4. has made some valuable comments on the meaning which, according to
the author of the Dayabagha, attaches to the Sanskrit word which
Mr. Mandlik has translated as " should " in the text of Saunaka.

BHKCH. I nex ^ come to the commentary known as the Mitakshara, which,

according to Mr. Mayne, following West and Biihler (Mayne's Hindu Law

14 4* 7 and Usage, 3rd edition, paragraph 26) was written about the latter part of
RB).= the elevenoh century, and consequently many centuries before the appear-

12 jl.W.N. ance of the Dattaka Mimansa of Nanda Pandita.

(1392|.161. ]\/[ ri Golebrooka's translation of the passages in the Mitakshara bearing

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

It will be noticed that although the author of the Mitakshara cities
only a portion of the particular text of Vasistha, omitting that por-
tion of the text which gave the reason for the precept, his use of the
word which as translated means "similarly" and his use in all three
passages of the words "na deyah" show, when one examines the second
of the three passages in conjunction with the first of them, that he con-
strued the text of Vasistha as the rules of the Mimansa of Jaimini require
it to be construed, and read the text of Vasistha as giving a religious

422



YII] BENI PBASAD V. HARDAI BIBI 14 All. 81

recommendation only and not as imposing an imperative prohibition 1892
against the adoption of an only son. p EB> 4

Tbe 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 Mitaksbara imperatively forbade
the accepting as well as the giving of an only son in adoption ; but it
does not, nor, as I understand it, does it even imperatively forbid the
giving of an only son in adoption.

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

The opinions and arguments of Golapchandra Sarkar, at pages 286,
287, 288 and 289 of bis Hindu La.w of adoption, as to what is the correct
translation of the three passages in the Mitakshara, to which I have
referred, are instructive and shoul'.i be read carefully.

I entirely agree with Golapchandra Sarkar (page 289) that in con-
sidering Hindu Law "It should be borne in mind that a transaction
''may be perfectly valid in law, however blameable, reprehensible or
"sinful it may be represented." It is perfectly true, as pointed out in
the note (6) at page 915 of West and Biihler's Hindu Law, 3rd edition,
that 'It is not opposed to Hindu notions that a man should benefit
spiritually by moving another to an act which in him is sinful.' The
importance of that fact in determining the question as to whether, accord-
ing to tbe text of Vasistba or the Mitaksbara, tbe adoption of an only son
is void, is shown by the attempts which have [81] been made to read those
texts as if they not only prohibited the giving but also the accepting of an
only son in adoption.

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

In my opinion the Mitakshara correctly translated leaves the text
of Vasistha as it stood, and having regard to that text and to the preceding

423



All. 82



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

FEB. 4.

FULL
BENCH.

14 A. 67

<F.B.) =

12 A.W.N.

(1892) 161.



and succeeding passages in the Mitakshara, the inference is that the
author of the Mitakshara did not understand that the adoption of an only
son was imperatively prohibited by the text in Vasistha or by the Hindu
sacred law as he knew it, but understood the contrary.

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

Their Lordships of the Privy Council in The Collector of Madura v.
Moottoo Ramalinga Sethupaty (1) appear to have referred in guarded lan-
guage at page 437 of the report to the authority of the Dattaka Mimansa
and the Dattaka Ghandrika, and again at page 438 to the authority of the
Dattaka Mimansa.

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

The Dattaka Mimansa came into existence within the last three
hundred years, and is no doubt, on some questions considered as a high
authority in the School of Benares, bufi not on any question of the weight
which is attached to the Mitakshara. In my opinion it puts upon the text
of Vasistba a construction at variance with that which is put upon it by
the author of the Mitakashara and which is not justified by the rule of the
Mimansa of Jaimini. The importance of the Datfcaka Mimansa to my mind
on the question with which we are concerned consists in this, that it and
the Dattaka Chandrika most materially influenced, and I might even say
biassed, the judgment of Mitter and Jackson, JJ., in Upendra Lai Roy v.
Srimati Rani Prasanna Mayi (2). The Dattaka Mimansa, the Dattaka
Chandrika and Mr. Colebrooke's translation of the text of the Mitakshara
to which I have referred together with the judgment of Mitfcer, J.,
in 1 Beng. L. R. 221 appear to have had the same effect upon the
judgment of Markby, J., and Garth, C. J., in Manick Chunder Dutt
v. Bhuggobutty Dossee (3) and not to have been without considerable
influence on Westropp, C. J., in Lakshmappa v. Ramava (4).

In the judgment of Mitter, J., at pages 223 and 224 of 1 Beng. L.R.
is given what purports, as I infer from the footnotes of reference, to be a
translation of verses 1, 3 and 4 of section 4 of the Dattaka Mimansa.
Where Mifcter, J., got that translation from I have been unable to ascertain,
unless it was his own condensation of the translation of Mr. Sutherland.
I give in full the passage as it aopears in his judgment. It is as follows :
" By no man having an only [83] son (eka-putra) is the gift of a son to



(1) 12 M. I. A. 397.



(2) 1 B. L. R. A. 0. 221.
(4) 12 B. H. C. R. 364.

424



(3) 3 0. 443.



T7II] BENI PRASAD V. HARDAI BIBI 14 All. 84

11 be ever made" (verse 1). " He who has an only son, or one having an 1892
" only 3on, the gift of that son must never be made." For as Vasistha FEB. 4.
" declares, " an only son lefc no man give." Therefore a prohibitioa ngainst
acceptance is established by the text in question. Accordingly Vasistha FtJLL
" says let no man give or accept," &c. (verse 3). BENCH,

" To this he subjoins a reason. 'For he is destined to continue the

" line of his ancestors.' His being intended for lineage being thus l * * 6
" ordained in the gift of an only son, the offence of extinction of lineage (" ? ' B -) =
"is implied. Now, this is incurred by the giver and the receiver also 12A - W - N -
" (verse 4)." < 1892 > *"

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

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

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

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

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

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

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

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

It is not to be assumed that the whole of a commentary is to be relied
upon, because it is found that in some parts it is consistent with the

425
A VII-54



14 All. 85 INDIAN DECISIONS, NEW SERIES [Yol.

1892 practices of the Hindus or the texts of the sacred books and to that
FEB. 4. extent has been considered as authoritative. The work of the wildest

and most inaccurate reasoner on sacred texts would probably be found

FULL to be on many points in accord with the popular views, with same texts
BENCH, which he quoted, and with some of the opinions of other eommentators.

The translation relied upon in the same judgment of Mitter, J., of
14 A. 67 the passage in the Dattaka Ghandrika is " By no man, ' having an only
(F.B.)= son j g fc^g gift o f a 8on t o b e ever made" (sec. I verse 29).
12 A. W.N. ]yj r Sutherland's translation of that verse (Stokes' Books of Hindu

(1892) 161. Law, page 636) is as follows: " In answer to the question [88] 'by
whom is a son to be given ?' Saunaka declares 'By no man having an
only son is the gift of a son to be ever made. By a man having several
sons, such gift is to be anxiously made."

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

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

As to the process of reasoning by which, apart from the gloss of the
Dattaka Mimansa, it has been contended that on the adoption of an only
son the lineage of the giver and the acceptor must become extinct, I shall
next deal. Before proceeding to consider the more important judicial
decisions on this question of the legality of the adoption of an only son,
I wish to point out; that, as it appears to me , much of the argument ac-
cording to which such an adoption must be considered as imperatively
prohibited ia of that kind of argument known as the argument in a circle.
It is said, " such an adoption is illegal because it deprives the giver and
the receiver of lineage, or in other words, of descendants to offer the funeral
cake," &c. When the question is asked, " Why should not the giver
" of an only son be on the making of the gift in the position of a sonless
" Hindu and therefore competent to adopt a son to himself, " the answer is,
" Because the giving in adoption of an only son is illegal according to Hindu
" Law and one who commits such an infraction of the Hindu Law must be
" incompetent to adopt a son." When the question is put, " Even if the
" giver of an only son becomes thereby precluded from all chance of lineage
by adoption or by subsequent procreation, why does not the only son given
in [86] adoption become a son to the acceptor," the answer is, '* Because
" such an adoption is illegal according to Hindu Law and therefore void."
When I put the question, "Then, if the adoption is void why does not the
only son continue to be for all purposes the son of his natural father ? "
the only answer I received was, " the natural father ' had committed an
act so sinful and illegal that he thereby lost his son." Whether or not
it is considered that such a penalty is a just one upon the natural father,
it appears to me that if such a view of the Hindu Law be correct, a very
unjust measure would be meted out to the unfortunate only son, who, by
reason of his age at the time generally prescribed for an adoption, must
be considered as an innocent and unoffending party, who had no voice in
the transaction, and still harder would be the fate of the souls of those

426



YII] BENI PBASAD V. HARDAI 6IBI 14 All. 87

of the ancestors who died prior to such an adoption and who con- 1892
sequently could have had no voice in the matter of the adoption. FEB. 4

The adopted son would according to such an argument have losfc one

father without gaining another. If I were one of the Judgas who FULL
will have to decide this appeal after this reference to the Full Bnch BENCH.

is answered, I would, before deaiding against the legality of the adoption

of the respondent, Bam Prasad, enquire whefcher he, Musamouat Hardai ** * 67
Bibi, and his natural father, had been outcasted on aecounti of the



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 64 of 155)