adoption of Bam Prasad. I believe it is over twenty years siace theadop- 12 A-W-N.
tion took place. If those persons were not outcasted I should require to (1892), 161.
have explained to me how it happened, if the adoption was such a sinful
and illegal act in the eyes of the Hindu law, they were not outcasted,
particularly as they belong to a caste, the members of which are such
sticklers for caste and for keeping their caste pure as are the Agarwala
Banias of Benares, where the principles of the Benares School of Hindu
Law are supposed to be understood and followed.
I now proceed to consider the latter leading judicial decisions in India
on this question. I do not propose to offer any separate criticisms on the
earlier judicial decisions, which are referred to in the later cases, because,
owing to the incomplete condition of this Court's library, there are few of
those earlier decisions to which I have  access, and it might lead to a
wrong impression as to my views and method of dealing with the subject
if I were to criticise some only of the earlier decisions and pass others
of them by in silence.
The first decision to which I shall refer is that in Upendra Lai Roy
v. Srimati Rani Prasanna Mayi (1). That decision, as I have already
pointed out, is almost, if not entirely, based on the passages from the
Dattaka Mimansa and the Dattaka Chandrika, referred to in the judgment
in that case. It was asserted in the judgment of Mitter, J., in that case
" that the adoption of an only son is prohibited by the Hindu Shastras, is
beyond ' all controversy.' ' In support of that assertion none of the
Hindu Shastras are cited, but what are apparently incomplete translations
of passages from the Dattaka Mimansa and the Dattaka Chandrika are
given. Manu, as given in the Dattaka Chandrika, is referred to in that
judgment in support of what- I agree with Markby, J., in considering
to be a wholly incorrect cropoaition as to Hindu Law. I shall refer to
this later. Whether or not Mitter and Jackson, JJ., who were without doubt
Judges with well-deserved reputations as lawyers, consider that the Dattaka
Mimacsa and the Dattaka Cbandrika were Hindu Shastras may be a
doubtful point on a perusal of their judgment. Whatever they took them to
be, they accepted their texts, or, more correctly speaking, the translations
which they gave of them, as correct expositions of the Hindu Law on the sub-
ject of adoption. There is no trace in their judgment of their attention having
been drawn to the authoritative rules of construction to be found in the
Mimansa of Jaimini, or to the fact that the text, the meaning of which
is disputed, firdt appeared in Vasisbha. They saw no distinction in
construction betweep the text which prohibited a woman adopting a son
to her husband without his authority and that portion of the text which
deals with the adoption of an only son. They said, referring to the
passage cited by them from the Dattaka Chandrika as to a woman not
adopting to her husband without his assent. "Can it be said that such an
adoption would be valid in law ? It will " be observed that the language
(1) 1 B.L.B.A.C. 221.
14 All. 88 INDIAN DECISIONS, NEW SERIES [Yol.
1892 employed in the preceding text is "preoiselly similar to that employed in
FEB. 4. the text prohibiting the adoption of an only son." Those learned Judges,
if they had paid regard to the rule of the Mimansa of Jaimini and applied it
FULL to the full text of Vasistha to which I have referred, could not have
BENCH, made that assertion. If they had hajd their attention drawn to the three
l"V~ gl | passages in the Mitakshara which are commented on by Golapchandra
(P B >= Sarkar at pages 286 and 287 of his Hindu Law of Adoption, they would
12 A W N P roDaD ly have come to the conclusion that in the view of the author
of the Mitakshara the text of Vasistha relating to the adoption of an
only son was one containing a moral or religious recommendation, and
not a positive and imperative prohibition which would make such an adop-
tion illegal and void. Those learned Judges nowhere refer to the Mitakshara,
possibly because they may not have been aware of the pasages in the Mitak-
shara to which I have referred; but more probably because the Dayabhaga
took the place of the Mitakshara in Lower Bengal ; but neither do they refer
to the Dayabhaga in'support of any'of the views set forth in their judgment.
Possibly the Dayabhaga contained nothing which would support them.
Further on in their judgment, referring to the adoption of an only son,
they say " It is to be borne in mind that the prohibition in question is
" applicable to the giver as well as to the receiver, and both parties are
"threatened with the offence of 'extinction of lineage' in case of violation."
"That was, as I think I have shown, nothing but pure and unadulterated
Datfcaka Mimansa. Those learned Judges also relied upon cases numbered
3&18 at pages 178&179 of Vol. 2 of Macnaghten's Principles and Precedents
of Hindu Law, 3rd edition. The passages printed by Sir William Mac-
naghten were apparently questions and answers put to and given by a Pandit.
In support of the answer in case 3, no authority is cited. In support of
the answer in case 18, Vasistha, as interpreted in the Dattaka Mimansa
and the Dattaka Chandrika, was relied upon. It would appear from
paragraph 30 of Mayne's Hindu Law, 3rd edition, that Sir William Mac-
nagbtn, at the date of his work Mr. W. H. Maonaghten, had not a very
accurate idea of the authority to be allowed to the Dattaka Mimansa or
the Dattaka Chandrika, or a correct opinion as to the authorship of the
 I have only one more comment to make on the judgment of
Mitter and Jackson, JJ. It is that I entirely agree with Markby, J., (l)
in his comment upon the passage in the judgment of Mitter and Jackson, JJ.,
in which at cage 224 they are reported to . have said, "An Act of
"adoption is to all intents and purposes a religious act, but one of such a"
"nature that its religious and temporal aspects are wholly inseparable."
With that proposition I entirely disagree, and for reasons similar to those
given by Markby, J.
I now proceed to consider the judgment of Markby, J., in Manick-
Chunder Dutt v. Bhuggobutty Dossee (2). Many of the reports referred to
in that judgment are not in this Court's library, and I am consequently
unable to test the accuracy of the criticisms passed upon the cases report-
ed in them. I can however point out that Markby, J., in his criticism
upon the case of Musammat Tikday v. Hurree Lai (3), at page 454 of the
report, clearly shows that his mind was influenced by the Dattaka Mim-
.ansa. He there said, " The cardinal reason, therefore, why an only son,
* cannot be adopted, namely, that the lineage of his family is thereby
"extinguished, and the ceremonies can no longer be performed which are
(1) 3 0. 458. (2) 3 C. 443. (3) W. R. 1864, Gap. No. 133.
YII] BBNI PRASAD V. HABDAI BIBI 14 All. 91
"necessary for the salvation of his ancestors, does nob apply." In that 1892
criticism Markby, J., was assuming the correctness of one of the disputed FEB. 4,
contentions on which he had to decide. It might be asked why, if the
giver in adoption of an only son is to be treated as a man who has no son, FULL
should his ancestors be in a worse position than they would havd been BENCH.
in if he had died without having had a son born to him and without
having adopted one, and why should not others, who are authorised ** * ^
according to Hindu Law to perform the ceremonies for a sonless Hindu (F.B.) =
and his ancestors, perform the ceremonies necessary for the salvation of 12 A.W.N.
the souls of the ancestors of a giver in adoption of an only son, or why ( J 892) 161.
it should be assumed that subsequently to the adoption the natural father
of the adopted son could not have a son born to him, or why the natural
father having given his only son in  adoption should not, like any
other sonless Hindu, be competent to adopt a son.
According to Markby, J., at page 460 of the report, there were only
four cases in which it was clear that the point as to the legality of the
adoption of an only son arose and was decided, namely, two cases at
Calcutta which were against the adoption of an only son, and two cases,
one at Madras and the other at Bombay, which supported such an adop-
tion. Of the two cases at Calcutta one was that to which I have already
referred, in which Mitter and Jakson, JJ., held that such an adoption was
invalid. According to Markby, J., at the same page, five English text
writers thought such an adoption illegal and one " backed no doubt by the
important but solitary opinion of Jagannatha amongst Hindu text writers"
thought it valid. In connection with the passage in the judgment of
Markby, J., to which I have just referred, I cannot forget the statement of
Mr. Mayne in paragraph 30 of his Hindu Law, 3rd edition, that " The two
special works on adoption, viz., the Dattaka Chandrika and the Dattaka
" Mimansa, possess at present an authority over other works on the same
" subject, which is, perhaps, attributable to the fact that they became
" early accessible to English lawyers and Judges from being translated by
" Mr. Sutherland," and avoid wondering whether the circumstance of their
early translation and consequent accessibilty to English lawyers and
English Judges, coupled with a neglect to observe the rules of construction
of the Mimansa of Jaimini, which owing to that Mimansa being in Sanskrit
may have been little, if at all, known to English lawyers and English
Judges, may not account for the views expressed in the two judgments
and in some of the English text-books upon which Markby, J., partly relied.
The Hindu text-writers upon whom Markby, J. relied were the
authors of the Dattaka Mimansa and the Dattaka Chandrika, although
he does also refer to the Mitakshara. In my opinion the Mitakshara does
not support his view. In referring to the Mitakshara, Markby, J., did that
which Mitter and Jackson., JJ., had omitted to do in their judgment upon
which I have commented.  Eaferring to the Dattaka Mimansa, the
Dattaka Ghandrika and the Mitakshara, Markby, J.. at page 459 of the
"report said, " The authors of these treatises all quote the same text of
"the sage Vasistha, which is the foundation of the whole doctrine." I
thoroughly agree with Markby, J., that the doctrine, whichever is the true
one, must be deduced from the text of Vasistha, but not from a part only
of that text, but from the whole text read together, I, however, thorough-
ly disagree with him in thinking that the doctrine upon which he relied is
to be found in the Mitakshara, or is reasonably to be deduced from the
text of Vasistha, construed as I construe it by the rule of the Mimansa
14 All. 92 INDIAN DECISIONS, NEW SERIES [YoL
1892 Markby, J., at page 455 of the report states what I believe, from my
FEB. 4. expariente of old cases, to be a very sound principle. Eeferring to the
" opinions given by certain Pandits he said, " But it does not appear that
FULL " these opinions were ever submitted to any Court, nor is it said upon
BENCH. " what texts they were based, and I believe it to be a clear principle,
understood and acted upon ever since our Courts have been established,
14 A. 67 " nei fco accept as authority the opinions of Pandits unconfirmed by judicial
(P.B).= " decision and unsupported by texts."
12 A.W.N. I have not had the advantage of seeing the opinions of the Bengal
(1892) 161. Pandits which Markby, J., states were unanimous, and I do not know
what were the texbts, if any, which those Pandits gave in support of them.
We have, however, been referred in the course of the argument in this
case to three opinions of Pandits given in cases in the Sadr Diwani Adalat
of these provinces. They are By wastha No. 9, Bywastha No. 24 and
Bywastba, No. 25 to be found at pages 6, 16 and 17 of Bywasthas, Vol. I,
Part I, published at Agra in 1861. The two latter appear to be those
referred to by Westeopp, O.J., in his judgment, upon which I shall
presently make some comments. The first of those three Bywasthas
relates to a question as to the adoption of an only son of a sister. The
answer relates to the adoption of an only son and "Bishisht," the Dattaka
Chandrika and Dattaka Mimansa are cited as the authorities. The
second relates to the adoption of an eldest son, and no authority is
 cited. Whilst in the third the Dattaka Chandrika was the only
authority given. Whether the latter Pandit was not aware of or did not
approve of the Dattaka Mimansa I know not, nor have 1 been able to
trace the cases in which those opinions were given. As Markby, J., was
of opinion that there was only one case in the Sadr Diwani Adalat, viz.,
that of Nundram v. Kashee Pandey (I) in which the question as to the
legality of the adoption of an only son properly arose and was decided,
the opinions of the Pandits in the other cases in the Sadr Diwani Adalat
would according to his rule be of little value.
I shall now consider the judgment of Westropp, C.J., in Lakshmappa
v. Ramava (2). That was an important judgment, for although Westropp,
C.J., was not deciding the question as to whether the gift in adoption of
an only son by his father was in the Bombay Presidency void, and in
fact assumed for the purposes of the suit in its then stage that such an
adoption would not be void and that the texts in relation to it were
directory only, and that if such an adoption were made in opposition to
those texts the principle quod fieri non debet factum valet should be
applied to it (see pages 375 and 391 of the report), yet I think it can be
gathered from the judgment that the opinion of Westropp, C.J., was against
the validity of such an adoption.
Westropp, C.J., at pages 377 and 378 of the report assumes that Mr.
Colebrooke's translation of the three passages in the Mitakshara, to which
I have already referred, was correct, and at page 378 lays much stress on
the fact that Mr. Colebrooke in rendering those passages, employs, with
regard to the only son, the expression " must not," and with regard to the
eldest son the expression " should not." I have already pointed out that
the propriety of Mr. Colebrooke in those passages rendering the same
Sanskrit word in two of the passages as " should " and in that relating
to the only son as " must " requires explanation. Westropp, C.J.,
apparently relied to some extent upon the authority of Balambhattn's
(1) 4 Bel. Kep. 70. (2) 12 B.H.C.B. 364.
11] BENI PRASAD V. HAUDAI BIBI 14 All. 94
commentary, the Dattaka Mimansa, the Dafcfcaka  Chandrika and 1892
the text in Saanaka (Caunaka) to which I have already referred. Wes- FEB. 4.
tropp, C.J., then refers at pages 380, 381, 382, 383, 384, 385, 386, 387
and 388 to several reported cases, to only three of which owing to the FULL
condition of this Court's library have I access. Some of those cases BENCH.
were apparently in favour of the adoption of an only son being valid or at
least not void. It does not appear whether the Vyavasbhas referred to
as in Mr. Justice West's MS. were accompanied by texbs in support of
them or were sanctioned by judicial decision. The two Vyavasthas 12 A.1H.N.
mentioned at page 391 of the report as having been given to the Sadr
Diwani Adalat of the North-Western Provinces are two of the Bywsthas
I have already referred to.
In Waman Baghupati Bova v. Krishnaji Kashiraj Bova (1) all that
the Full Bench decided is best expressed in their own words which
are, "Bat, although this course may be fairly open to a critic
*' of the decisions of the Court, it is, in our opinion, very important,
" with a view to uniformity of decisions, that this Court should, in the
" absence of a very cogent reason to the contrary, not depart from the
" standard it has uniformly applied in appreciating the value of the different
" text-writers. Under these circumstances, it is sufficient, in our opinion,
" to say that the question has been determined by a Full Bench after full
discussion against the validity of such an adoption, and that for the last
" ten years such an adoption has been regarded by the legal profession
" as being, in the view of thia High Courb, in contravention of Hindu Law,
II and that no reason which could properly be entertained, with due regard
" to the long established authority of Full Bench decisions, has been
" assigned which could jusbify our interference with that decision. We
" must, therefore, answer the question referred in the negative."
The referring judgment of Jardine, J., and the judgment of that
Full Bench are, notwithstanding the manner in which that reference
was decided, interesting and instructive. The Full Bench decision which
the Full Bench in the case in I. L. K., 14 Bom. 249, declined to
reconsider is unfortunately not reported, and apparently  no judg-
ment was wribten in that Full Bench case, so that it would be mere
speculation to consider what were the reasons of the Judges respec-
tively for holding in that case that the adoption of an only son by a
Lingayet was invalid. The Judges in that case apparently thought
that a custom, if established, amongst Lingayets of making such adop-
tions would validate such an adoption amongst them. It does seem
to me curious how, if the adoption of an only son is so sinful, so absolutely
prohibited by the Hindu religion, and so destructive to the souls of
Hindus as it is contended that it is, a local custom or a custom amongst
particular Hindus could have the effect of overruling and setting aside the
divine Hindu law on so material a point and avoiding the difficulties in
which the soul of the giver in adoption of his only son and the souls of his
ancestors would otherwise be left.
The latest decision on this question of the adoption of an only son
in Madras, of which I am aware, is that in Narayanasami v. Kuppusami(2) .
In that case Collins, C.J., and Muttusami Ayyar, J,, said, " We are
" not prepared to depart from the course of decisions in fchis Presidency,
" and we hold then that the adoption of an only son, if actually made, is
41 valid, however sinful the act may be on strict religious considerations."
(1) 14 B. 249. (2) 11 M. 43.
14 All. 93 INDIAN DECISIONS, NEW SERIES [Yol.
1892 One of the cases to which those learned Judges had referred was Ghinna
FEB. 4. Gaundan v. Kumara Gaundan (1) in which Scotland, C.J., had given a
judgment which was muoh criticised by Markby, J., in Munich Chunder
FULL Dutt v. Bhuggobutty Dossec (2 j and was referred to without criticism by
BENCH. Westropp, C. J., in Lakshmappa v Ramava (3). I regret to say that I
have not access to the reports of the cases upon which Markby, J. founded
14 A. 67 hj s criticism of the judgment of Scotland, O.J., and I muse only assume
(F.B.)= that his criticism was correct so fav as those cases went. It is however
12 A.W.N. j; O J.JQ observed that Scotland, C.J., also relied upon the Raja of Tanjore's
(1892) 161. case .
In the case in the Punjab of Adjoodhia Pershadv. Musammat Dewan (4)
Simpson, J., held, agreeing with a previous decision of that  Court
that the adoption of an only son having once been made cannot be annul-
led, and that the validity of such an adoption depends rather upon local
usage than upon the strict rule of Hindu Law upon the subject. In the
same case Lindsay, J., held that the texts of Hindu Law relating to the
adoption of an only son could not fairly be considered as directory only,
and that such an adoption was invalid ; but that a custom to make such an
adoption having been proved the particular adoption was good, on the
ground, as stated by him, that " custom overrules the law."
I now come to the Full Bench decision of this Court in Hanuman
Tiwari v. Chirai (5) from which we are asked to dissent. In that case
the majority of this Court, Stuarb, C.J., Pearson, Spankie, and Oldfield. JJ.,
held that the adoption of an only son was sinful and blameable only and
not void, and that such an adoption having taken place the principle quod
fieri non debuit* factum valet applied, and the adoption could not be
disturbed. Of the contrary opinion was Turner, J., who relying upon
Mr. Colebrooke's translation of the passage in the Mitakshara in which he
translates as "must" the same word which in the preceding passage and in
the subsequent passage he translates as "should, "and also relying upon the
Dattaka Miinansa, the Dattaka Ohandrika, and Saunaka, held that the
adoption of an only son was invalid and that the maxim quod fieri non
debuit* factum valet could not be applied, In conclusion Turner, J., said,
" The consequence of the contrary ruling would be, according to Hindu
" Law, to inflict a penalty not only on the giver and receiver, but on the
" collaterals of the receiver, whose property might descend to a person
*' solely entitled to claim it on account of benefits she is presumed to
" confer, but which he could not possibly confer.'" I think it is obvious
that it was the Dattaka Mimansa which was mainly responsible for the
conclusion of Turner, J. The criticism on the constructions of the original
of the passage in Saunaka cited by Turner, J., I have already referred to.
The position of this question as to the legality or illegality of the adop-
tion of an only son stands thus, so far as the latest  decisions
of the four High Courts in India and the Chief Court of the Punjab are
concerned. A Division Bench of the High Court of Calcutta and a Full
Bench of the High Court of Bombay hive held that such an adoption is
illegal and void. A Division Bench of the High Court of Madras has
held that though such an adoption is sinful it is not void. A Full Bench
of this High Court;, Turner, J., dissenting, has held that although such
an adoption is sinful, it is not void, and that the principle quod lieri
non debuit* factum valet applies to such an adoption actually made
' "debuit" is wrongly printed for debet.
(1) M.H.G.R. 54. (2) 3 G. 455. (3) 12 B.H.G.R. A.C. 378, 388.
(4) 18 P B. 1870, p. 56. (5) 2 A, 164.
YII] BENI PEASAD V. HABDAI BIBI 14 All. 97
The Chief Court of the Punjab holds that such an adoption is valid when 1892
a custom to make such an adoption is proved. FEB. 4.
The question has never, so far as I am aware, been expressly deci-
ded by their Lordships of the Privy Council. But nevertheless there are FULL
some indications, slight though they may be, that their Lordships do nob BENCH*
consider that the adoption of an only son is plainly void and the prinoi- ~~~
pie quod fieri non debuit * factum valet could not apply. In Nilmadhub Doss , B \
v. Bissumb'nur Doss (l) their Lordships of the Privy Council said, " Again * ' "**
" if there is, on the one hand, a presumption thai; Goorooproshad Doss would
" perform the religious duty of adopting a son, there is, on the other, at '
" least as strong a presumpbioa that Purmanund would not break the law
" by giving in adoption an eldest or only son, or allowing him to be adopted
11 otherwise than as a Dwyamushyayana, or son to both his uncle and his
natural father. This latter kind of adoption would not sever the connec-
tion of the child with his natural family." I infer from the report in
13 Moo. I. A., that Ramlochan Doss, who was alleged by the respondents
to have been adopted by Goorooproshad Doss, was at the time when he was
adopted the only then surviving son of his father Purmaound Doss. At
page 87 of the report it is stated tha- Rijiblochan Doss who was eldest
and the full brother of Eamlochan Doss, was dead at the time of the alleged
adoption. He was the eldest son of Purmanund Doss. At page 89 of the
report it is stated that " the appellant filed a written statement by way
of answer, and stated that Ramlochan Doss was the step- brother of the
appellant, and that  Goorooproshad Doss bad never adopted him nor
" performed the Pootrash&e (initiatory ceremony of adoption) and that, in
" fact, Ramlochan Doss, at the time of the alleged adoption, was the only
" son of their father, Purmanund Doss, and that he and his wife did not
" give in adoption his eldest and only living son," &c. At page 93 of the
report I find that Sir Roundell Palmer, in arguing the case for the appellant,
contended that "Ramlochan Doss was not, and indeed could not, have been
" legally adopted or given, inasmuch as at the time of such alleged adop-
" tion he was the only son of his father 'and, therefore, ineligible," and in
support of that contention he cited the Dattaka Chandrika, sec. 1,