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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 66 of 155)
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pla. 20, 21, 27 (Sutherland's translation), and Strange's Hindu Law,
Vol. 1, 85, 2nd edition. I may mention that Sir Barnes Peacock, .
C. J., and Bayley and Kemp, JJ., had held, but on what finding of
facts or law I do not know, that the adoption of Ramlochan Doss
by Goorooproshad Doss did, as a fact, actually take place, and that it
was a good and valid adoption. It is obvious from the passage which I
have quoted from the judgment of their Lordships of the Privy Council,
that their Lordships were dealing with the case on the basis of Ramlochan
Doss having been at the date of the alleged adoption the only then living
son of his father Purmanund Doss. If their Lordships had accepted the
contention of Sir Roundell Palmer, which I have quoted, it would not
have been necessary for them to have considered whether the alleged
adoption had in fact taken place. On the contrary, their Lordships indi-
cated plainly that such an adoption, if it had taken place, would not have
been void, for in pointing out the distinction between the adoption alleged,
and a Dwyamushyayana adoption, they said, " this latter kind of adoption
"would not sever the connection of the child with his natural family," and
they inferred that if Ramlochan Doss's father would have given him in
adoption at all, it would have been in that form which would not have
For "debuit" read "debet."
(1) 13 M.I. A, 85.

A VII-55


1892 separated him from his natural family. Thair Lordships never suggested
FEB. 4. that if Bamlochan Doss had been given in the Dattaka form the adoption
would have been void. I am entitled to infer thai they did not think it
FULL would have been.

[98l The only other case from whioh may ba inferred what the

It A. 67 opinion of their Lordships of the Privy Council was as to the legality or

(F.B.)= illegality of an adoption of an only son, of which I am aware, is that of

12 A.W.N. Srimati Uma Deyi v. Gokoolanund Das Mahapatra (1). In that case

(1092) 181. their Lordships of the Privy Council, referring to a contention at the Bar,

said, at page 53 of the report : " It; was urged at; the Bar that the maxim

" quod fieri non debuit * factum valet, though adopted by the Bengal School,

" is not recognised by other schools, and notably by that of Benares.

" That it is not recognised by those schools in the same decree as in

"Bengal, is undoubtedly true. But that it receive.-* no application except

" in Lower Bengal is a proposition which is contradicted not only by the

" passage already cited from Sir William Macnaghten's work, hue by

" decided cases. The High Court of Madras in Ghinna Gaundan v. Kumara

" Gaundan (2) and the High Court of Bombay in Vyankatrav v. Anandrav

" Nimbalkar v. Jayavantrav Bin M. Ranadive (3) acted upon it ; and did so

" in reference to tbeadoption of an only son of his natural father, on which

" the High Court of Calcutta in Opendur LM Ray v.Ranee Bromo Moyee'A)

" has refused to give effect to it, considering that particular prohibition

" to be imperative."

It is obvious from the passage which I have just quoted that their
Lordships of the Privy Council were quite alive to the fact that in the
Court in India there was a difference of opinion as to whether the adop-
tion of an only son was void, in which case the maxim quod fieri' non
debuit* factum valet could not apply, or such an adoption was merely sinful
and not void ab initio, in which case that maxim might be applied if such
a principle as that expressed in the maxim was recognised by the particular
school, and yet their Lordships, although giving those examples of
oases in whioh the maxim had been applied, did not suggest that in those
oases that maxim was inapplicable. If the maxim was inapplicable in
the cases whioh their Lordships cited as cases in which the maxim had
[99] been applied, I would have expected that their Lordships would have
said so and not have left it to be inferred that the propriety of applying
the maxim in the cases to which they referred, ni3rely depended on
whether the particular school recognised such a maxim or not. It is most
improbable than in support of Sir William Macnaghten's opinion, in which
apparently they agreed, their Lordships would have referred to cases in
which the maxim had been judicially applied, if in their opinion the maxim
was inapplicable in those cases, and it must have been inapplicable if the
adoption of an only son was void.

I am satisfied that although the giving in adoption of an only son is
according to the Hindu Law sinful, and to that extent contrary to the
Hindu Law, yet that adoption of an only son so given is not void, and
that the principle of quod fieri non debuit* factum valet may be and should
be applied to such an adoption in these provinces. I may say that before
I came to look into this subject in this case I was under the impression
*~ . 1 ' .

For "debuit "read "debet."

(1) 5 I. A. 40. (2) M.II.C.R. 64. (3) 4 B.H.O E.A.C. 191.

(4) 10 W.R. 347.




14 All. 101

baaed on the judgments of Wesfcropp, 0. J., and Turner, J., already refer-
red to that an adoption in the Dattaka, form of an only son was void. In
conclusion, I ought to say that I thoroughly agree with the Full Bench of
the High Court of Bombay, that a High Court should not, except for very
cogent reasons, reconsider or question the ruling of & Full Bench of its OWD
Court. This case is a very fair example of the mischief which may arise
from departing from cases tully considered and decided by a Full Bench.
The Full Bench decision of this Court in the case of Hanuman Tiwari v.
Chirai (1) was given as long ago as the 24th of February 1879, and it is
impossible to say how many adoptions of only sons may since then have
been made in these provinces on the faith of that Full Bench decision
and in bow many cases the overruling of that decision might affect the
rights of persons, who relying upon it deemed themselves secure, effected
marriages and dealt with property which came to them as such adopted

My answer to the first question is that the adoption of an only son
which has in fact taken place is not null or void under the [100] Hindu
Law applicable in this case. Having answered the first question as I
have done, I do not consider it necessary to give any answer to the second
or third questions.

STRAIGHT, J. I have read the learned Chief Justice's 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 I.L.R., 2 All. 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 sui'ticient grounds have been
established for holding it to be wrong. I would therefore answer Shis
reference in the manner indicated by the learned Chief Justice.

MAHMOOD, J. My task in delivering this judgment is materially
diminished in consequence of the advantage which I have had of perusing
the judgment which the learned Chief Justice has prepared in this case,
and also on account of my having on two previous occasions delivered
judgments upon somewhat cognate questions of the law of Hindu
adoption. Both the judgments have been printed in the reports, and I
may conveniently refer to the pages of the published reports whenever it is
necessary to deal with what my be called the preliminary aspects of the
questions which have been referred to the Full Bench.

The main question as enunciated by Mr. Justice Young and myself,
in our order of reference, dated the 10th June, 1890, is whether the adop-
tion of an only son having taken place in fact, such adoption is null and
void under the Hindu law.

The learned Chief Justice has pointed out that whilst there is a vast
conflict of rulings of the High Courts in India, their Lordships of the
Privy Council have not yet directly settled the question, and I may
say that the latest case before their Lordships, Sri Ammi Devi Goru
v. Sri Vikarma Deou (2), does not settle the question. In this state
of things, and because the learned Chief Justice has already reviewed
the various rulings and authorities that were cited, it would be a work of
supererogation on my part to do [101] more than briefly state the reasons
why, after much consideration, I have arrived at the same conclusion at
which he has done. In doing so I wish to premise at the outset that the

FEB. 4,


11 A~67


12 A.W.N.
(1892) 161,

(1) 2 A, 164.

(2) 15 I, A, 176.


All. 102



1892 parties to this litigation admittedly belong to the twice borncasleof Vai-
FEB. 4. shya and that they are governed by fche Benares School, or rather sub-divi-

sion of the Milakshara School, of the Hindu Law. I havo mentioned this

FULL circumstance because, as appears from my judgment in ' E -Ganqa\Sahai v.
BENCH. Lekhraj Singh (1), the Hindu Liw is sub-divided into various schools,
and it does not follow that the interpretation of texts adopted by one
14 A. 67 gohool is to be necessarily followed by another. I may also add that this
(F.B.)= j a a cage Q f a< 3 O pti on under the Dattaka'jotm, and that no question arises
i A W.N, Directly as to any other form of adoption.

(1892) 161. j n j-Vjg cagQ a bovementioned after referring to various authorities,

I summed up my conclusions in the following words :

"First. That the existence of male issue being favoured by the
" Hindu Law mainly for the purpose of the parents'beatitude in the future
" life, adoption is a sacrament justified by a fiction of law under condi-
'' tions when the natural male offspring is wanting.

" Secondly. That 'a substantial adherence to ceremonials, but
" principally the act of giving and taking, is sufficient to establish the
" adoption.

" Thirdly. That when such adoption has duly taken place, its effect
" is the affiliation of the boy, as if by a feigued parturition he had been
" begotten by his adoptive father, thus removing the boy from the family of
" his natural to that of his adoptive parents.

"Fourthly. That the boy so adopted (to use the words of Jagan
" Natha), 'is born again by the ritos of initiation, and bis relation to the
" giver ceases and a relation tp the adopter commences.' "

I have quoted these conclusions, not only because they still have my
approval, but also because they help mo in stating the grounds of my
judgment. But before proceeding any further I wish to noint out that,
whilst the first conclusion as enunciated by me does [102] not limit the
motives for adoption to spiritual beatitude of the adoptive father and
his ancestors, it does not go the extreme lenguh of holding, what was held
by the Calcutta High Court in Rojcndro Narain Lahooree v. Saroda Soon-
duree Delia (2), that a childless Hindu is bound to adopt a son, if at all
anxious for his own salvation, that the duty is aa imperative one, and
what is required to be done for that end is not optional with him. I also
wish to observe in passing that my second conclusion as above quoted wag
carefully worded to prevent any confusion between matters of ceremonial
and those of essence in connection with the applicability of the doctrine
of factum valet as applicable to Hindu adoptions. In the case abovemen-
tioned (vide I. L. B., 9 All., pp. 292 to 297) I had to consider this question
at considerable length, and at pp. 296 and 297 of the report I summed up
my conclusions upon this point in the following words :

'' Now in the case of adoption there are of course questions of
formalities, ceremonies, preference in the matter of selection, and other
points, which amount to moral and religious suggestions. Such matters,
speaking generally, are dealt with in the texts in a directory manner,
relating to what I may perhaps call the modus operandi of adoption. To
such matters which do not affect the essence of the adoption, the
doctrine of factum valet would undoubtedly apply upon general grounds
of justice, equity, and good conscience, and irrespective of the authority of
any text in the Hindu law itself. There may, indeed, be cases where the
express letter of the texts renders that which would in other systems be

(.1) 9 A. 253, vide pp, 288291.

(2; 15 W.R, 548.



regarded as a matter of form, a matter of imperative mandate or prohibi- 1892
tion affecting the very essence of the transaction. So also FEB. 4,

there may, of course, be definite toxts of the Hindu law of adoption itself
which, though relating to matters of form, would he sufficiently imperative FULL
to vitiate an adoption in which they, have been disregarded. But unless BENCH.
such texts are express and undoubted in their meaning, I would apply
the doctrine of factum valet to adoptions which, having been made in ** * 8 "
substantial conformity to the law, [103] "have infringed only minor matters (F.B.I
" of form or selection. Having so far explained how I understand the 12 *- w **.
" general scope of the doctrine of factum vilet, I proceed to define upon (1892) 161.
" what points of Hindu adoption I would hold it to be inapplicable.
' Adoption under the Hindu Law being in the nature of gift, three main
" matters constitute its elements, apart from questions of form. The
" capacity to give, the capacity to take, and the capacity to be the subject
" of adoption sesm to rae to be matters essential to the validity of the
" transaction and, as such, beyond the province of the doatrine of
"factum valet ; and I may at once say that if any of these three capa-
" cities is wanting in this case, I shall hold the plaintiff's adoption to ba
" altogether invalid."

I have quoted this passage in order to say that I still adhere to
the views which I thus expressed, and also to show that it is in
accordance with such views that I shall consider the texts and author-
ities which have been cited in this case as to the adoption of an only
son being -.void and^a nullity. Dealing with the case in this manner,
it is obvious that the nature and significance of the authoritative
texts assumes great importance, and also the language in which they
are expressed. This being so, I wish to excerpt two passages from the
most recant writer upon the Hindu Law of adoption, namely, Mr. Golap
Chandra Sarkar Sastri, who is known not only to be a competent
Sanskrit scholar,"but~also a trained lawyer, as appears from the lectures
which he delivered as Tagore Law Professes in. 1888. At page 146 of his
work he observes

" I have already told you that rules of legal and moral obligation have
" been blended together in the institutes of Hindu Law, and that the parts
"of them dealing with positive law also contain some rules that appear
" to be merely admonitory or recommendatoryi and not mandatory or im-
" parative. I have also pointed out that the leading commentators them-
" selves draw the distinction and declare a few rules to be of morj
" obligation only. But at the same time it seems that they have not
" always kept the distinction in view while discussing the texts of law, so
" as to point out all the rules are intended to be merely directory, and the
" Courts of Justice [105] had to consider the question, and have pro.
'' nounoed a few rules to be of that character. It is

" now admitted on all hands that there are certain rules which are nob
" legally obligatory ; but the difficult question with respect to this matter
" is, how are we to differentiate between imperative rules of law and those
" that are merely binding on the conscience of men ? The difficulty is
" enhanced by the facts that the forms of expression generally used in
" the Sanskrit books are the same whether legal or moral obligation be
11 intended. So it becomes necessary to consider what principles Irave
" been followed by the commentators in declaring a precept to be of no
" legal force."

I have been anxious to quote these passages because in the course of
the argument it was insisted that none of the three capacities for adoption,



1892 which according to my abovementioned views are necessary for the
FEE 4, validity of an adoption under the Hindu law in the Dattaka form, is
indispensable for the validity of an adoption already made.

The learned Chief Justice's judgment has relieved me from the neoes-
BENCH. s ity of dealing with those various authorities which seem "to rely for their
j, . 6 - interpretation principally, if not wholly, upon early translations made by
(PB) European scholars of Sanskrit, such as the eminent Colebrooke and
12 A W N Sutherland, to be found in the collected edition of Stokes' Hindu Law books
(1892) 161 Published at Madras in 1865. Since that period three books bearing upon
the main question in this case have been written by Sanskritists. The
first is Mr. Mandlik's excellent edition of the Vyayahara Mayakha, pub-
lished in 1880. The second is Dr. Jolly's History of the Hindu Law of
Partition, Inheritance, and Adoption, which appeared as the Tagore Law
Lectures for 1883 and was published in 1885. The third is a work on the
Hindu Law of adoption by Golap Chandra Sarkar Sastri, M.A., B.L., and
was published in 1891 as the Tagore Law Lectures of 1888.

It is to these books that I shall principally refer in delivering the rest
of my judgment upon the most important question which has to be
dealt with in this case.

[105] Mr. Mandlik, at page 496 of his valuable work, says

" The next subject I have to notice is the giving in adoption of an
"only son. A precept about not giving nor receiving in adoption an only
" son is found in some of our Smritis. But this, like that about the
" eldest son, has been always regarded as purely directory, or recommen-
" datory. The usage of adopting such a son has been both ancient and
11 general and has been followed by the preceding Governments as well as
" by our own. It has been also generally upheld by our Courts. "

The learned author then in a footnote (at p. 497) refers to numerous
decided oases including the Full Bench ruling of this Court in Hanuman
Tiwari v. Chirai (1), where it was held that the adoption of an only son
cannot, according to Hindu Law, be invalidated after it has once taken
place. Whilst citing these cases with approval, the learned author proceeds
as a Sanskrit scholar to consider the-texb bearing, scope, and effect of the.
original Sanskrit texts which have been cited in this case for the
proposition that the adoption of an only son is absolutely prohibited and
therefore void.

I do not propose to enter into any minute discussion as to the various
steps of reasoning which fill the next dozen pages of Mr. Mandlik's work,
and I think it is enough to say that I accept the authority of such an
eminent Sanskrit lawyer for holding that the texts relied upon for the
opposite proposition do not sustain the argument addressed on behalf of
the plaintiff-appellant to the effect, that they involve negation of any one
of the three legal capacities which I have before now described as forming
the essence of the right and power of adoption, even when an only son
has been adopted. In this interpretation of those texts Mr. Mandlik's
views are fully supported by what another Hindu Sanskrit scholar and
lawyer, Mr. Golap Chandra Sarkar, says, at page 284 et seq. of his work on
adoption. I wish to add in connection- with the exact interpretation of
the Sanskrit texts that I have bad the honour and advantage of consulting
my respected friend, an eminent Sanskritist, Mr. Archibald E. Gough,
Principal of the Muir Central College, Allaha-[106]bad and that his

(l) 2 A. 164.


interpretation of those texts is consistent with the meaning placed upon 1892
those texts by the two Hindu Sanskritists and lawyers above mentioned. FEB. 4.

Consistently therefore with the views which I expressed in Ganga
Sahai v. Lekhraj Singh (V, I hold that such restrictions as are indicated FULL
in the texts upon the adoption of an only son are merely religious and ^ BENCH.
moral as distinguished from legal ; that they amount to moral or religious
admonitions relating to the choice or selection of an only son for purposes
of adoption as a matter resting between the giver and the taker ; that as
such admonitions they do not in law vitiate any one of the three capacities ia A.W-N.
which I have held are essential to the legal validity of Hindu adoption. < 1892 > *81.
And it follows, therefore, that the doctrine of facium valet applies to this

This answers the reference to the Full Bench ; and I should have
stopped here, but for the fact that stress was laid in the course of the
discussion that I am precluded from any such view by the reasoning
upon which my judgment in the Fall Bench case of Tulshi Ram v.
Behari Lai (2) proceeds. In that case my views had the approval of the
learned Chief Justice and my brother Judges, and I need scarcely say
now that I am satisfied with the distinction which the learned Chief
Justice has drawn in his judgment in this case between the interpretation
of the texts in that case and those which have to be considered here.
I may, however, say perhaps that in the case of Ganga Sahai v.
Lekhraj Singh (1), to which I revert for easy reference, I stated (at page
290) that the Mimansa formed a source of Hindu Law and governed the
interpretation of its texts ; and that in the case now before us, the
learned Chief Justice has shown how the rules of interpretation adopted by
Jaimini justify a distinction between an adoption by a Hindu widow
without her husband's authority and the adoption of an only son
given by his natural father to a widow who has been duly authorized
by her husband to take a son in adoption. I may also add that irre-
spective of Jaimini's rule of interpretation, there are [107J many impor-
tant reasons, as stated by me in Tulshi Bam v. Behari Lai (2), which,
according to my notions of the Hindu Law, distinguish the power of an
unauthorized Hindu widow to adopt a son from the question which
has arisen in this case.

In connection with the suggested conflict between my ruling in
Tulshi Ram v. Behari Lai (2) and the views which I have taken in this
case, I am anxious, in order to prevent possible confusion in the future, to
point out that at page 337 of the report I distinctly reserved the question
which arises in this case, and that referring to the same matter at page
339, I distinctly indicated the scope of the question with which I had
then to deal to the exclusion of the adoption of an only son with reference
to the Full Bench ruling of this Court in Hanuman Tiwari v. Chirai (3).

I do not wish to end this judgment without explaining two further
matters for preventing any possible misapprehension of the ratio decidendi
adopted by me in the two earlier adoption oases to which I have repeat-
edly referred. Now, in the first of these cases, Ganga Sahai v. Lekhraj
Singh (1), I explained that the beatitude of the adoptive parent is the mam
(I did not say the sole] object of adoption, and so far as the spiritual beati*
tude is concerned I need ouly refer to what has been said by Mr. Mandlik
(at pp. 453 and 457) to show that the begetting of a son is a moral
obligation, and failing that, adoption's desirable, and that failing either

(1) 9 A, 253. (it) 12 A, 328. (3) 2 A. 164.



1892 the childless Hindu may attain salvation by other methods. In this
FEB. 4. connection I may also invite attention to the remarks raaie by the same
teamed author at page 500 of big work ; so that in the case of the father
FULL of an only son giving that son away in adoption his spiritual welfare may
BENCH, be secured by him by other methods. And this answers any difficulty
which may arise over the views expressed by me in the case cited as to
14 A. 67 jjjj Q S pi r it ua i beatitude being the main reason for the Hindu Law of
(P.B.)- Adoption.
19 X W N

' ' ' [108] Now, the next matter which I wish to explain is common

' both to my judgment in Ganga Sahai v. Lekhraj Singh (1) and that in
Tulshi v. Ram Behari Lai (2). The contention is that so far as the
authority of the Dattaka Mimansa of Nanda Pandit is concerned those two
judgments are conflicting ; that, in the present case, not only the authority
of the Dattaka Mimansa but also that of the Dattaka Ghandrika are

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 66 of 155)