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binding authorities upon this Oourfc, and that since they agree in declaring
the adoption of an only son to be void, they should be followed by us as
they were by the reaent Full Bench ruling in Waman Raghupati Bova v.
Krishnaji Kashiraj Bova (3).

In regard to this part of the argument I wish to invite attention to
what I said in Ganga Sahai v. Lekhraj Singh (1) as to the various
grades of authority to which the Hindu Law text-books are entitled,
according to the class to which they belong in Hindu jurisprudence. The
Dattaka Mimansa, as also the Dattaka Ghandrika, belongs to the
last of the classes, namely, Nivandhana or digests, prepared by later
writers according to their interpretation of higher authorities. As
to the former of these two I have said enough in the above case (at
pp. 322324) and again in Tulshi Ram v. Behari Lai (2), and I need only
say that so far as the authoritativeness is concerned I hold the same views
also in regard to the latter of these works. The result is that, in my
opinion, both these works, since they do not belong to the higher grades
of Hindu law books, are open to be questioned by citation of other
authorities, as has been done in this case. The summary of the Dattaka
Nirnaya given by Dr. Jolly at page 309 of his work (Tagore Law Lecturer
for 1883) and again the discussion of the same subject by Mr. Mandlik
at page 501 of hig work sufficiently justified that in a case like this the
authority of the Dattaka Mimansa or the Dattaka Ghandrika is not
'so supreme and binding as to preclude the conclusion at which the learned
Chief Justice has arrived in this case and in which I have expressed my
concurrence.

[109] In conclusion, I wish to say that no sufficient reason is
shown for us to depart from the last Full Bench ruling of this Court upon
this point in Hanuman Tiwari v. Ghirai (4) and that my answer to the
reference in this case is the same as that given by the learned Chief
Justice, rendering it unnecessary to deal with tha two remaining questions
referred to the Full Bench.

KNOX, J. The first and, indeed, the main question referred to us is,
whether or not the adoption of an only son having taken place in fact,
such an adoption is null and void under the Hindu Law ?

This same question was in 1879 referred to a Full Bench of this Court
for decision with the result that all the Judges who composed that Full
Bench, with the exception of Mr. Justice Turner, were unanimous in the

(1) 9 A. 253. (2) 12 A. 328. (3) 14 B. 249.

(4) 2 A. 161.

440



YII] BBNI PRASAD V. HARtfAI BIBI 14 All, 110

answer given that " the adoption of an only son is not altogether void, 1892
bat that having once been mide the adoption is valid." FBB. 4,

The question therefore i=i not res integra. It has already been ans- '
wered by this Court in the affirmative, and as the answer was given by
a Pull Bench of the Oourb, it would, according to long and established BENCH.
practice, be regarded as conclusive, unless a decision of the Privy Council *. . .-
militating against it could be pointed out, or as Sir Charles Sargent adds, (p B )-
unless perhaps " the Court could be clearly shown to have formed its J2AWN
conclusion upon a mistaken impression as to the text of the Hindu Law /jg 8 2) ^M'
books upon which it relied : " Sir C. Sargent in Waman Ragupati Bova
v. Krishnaji Kashirav Bova (1).

We have been referred to no such ruling of the Privy Council. On
the contrary both parties are agreed that the question is one upon which
their Lordships have not up to the present date delivered themselves of
any decision. It only remains to be seen whether the decision is in a'coord
with the principles of Hindu Law,

The reason given why the Court should reconsider the opinion at which
it arrived in 1879, is that the answer of the Full Bench in that case is felt
by some to be an answer open to serious doubts. [110] The learned Judges
who joined in making the reference alludo to two cases in which this doubt
led Division Benches of this Court in 1886 to refer the same question
a second time for consideration by a Full Bench. They refer also to
a number of cases for and against the validity of the adoption of an only
son, and those cases do beyond all doubt establish that the question is
a question upon which there does exist, and has always existed among
the Courts in India much conflict of authority.

To my mind, however, the fact that twelve years have passed since
this Court pronounced upon the validity of such an adoption, and the
further fact that its diccum cannot fail, so far as iheso Provinces are
concerned, to have had considerable weight upon the minds of all prudent
persona, who may have sought to perpetuate their name and lineage
by an adoption of this nature are facts which cannot be left out of consi-
deration and which would in any case make me hesitate to give utterance
to an opinion in the opposite direction. I feel that before I could do so I
should need irrefragable proof that the prior ruling rested upon either a
wrong foundation or upon no foundation at all. I consider it a happy result
that careful examination of the text-books confirms and places, so far as I
am concerned, beyond the region of reasonable doubt the wisdom, truth
and soundness of the conclusion at which this Court arrived in 1879. For,
as I have already pointed out, it is nob difficult to conceive that there may
be some or even perhaps many families who would be thrown into serious
trouble and unrest if we found it necessary now to hold otherwise on this
point.

I have considered the question with the gravest anxiety. Had it not
been for the approaching departure of my brother Straight, I should have
deemed itnecessary toasktheCourt to postpone the delivery of this Judgment
until I had found it possible to place on record all the information, I have
obtained and the various reasons why I feel satisfied that the only true
answer that can be returned to the question is that the adoption of an only
son, once it has taken place, been compleated and recognized, must so far
as the provinces over which this Court has jurisdiction are concerned, be



A VII-56



(1) 14 B. 249.
441



19 All. Ill INDIAN DECISIONS, NEW SERIES

1892 [111] considered a valid act. Suoh an aot may be the height of imprud-

FEB. .4. enoe on the part of the giver ; it may even, by those who pride themselves

' upon their strict observance of Hindu scripture, be considered a blameable

F(7LL a,^ B U (J up0 n the authority of the same scripture it is as I shall

BENCH, presently show an act which is not a "Mahapatak": it ranks and is

J"~.~~ classed with acts which are " Upapatak," which can be atoned for by

penances of a comparatively easy description, and when atonement has

12 A w w keen made, the author of the act is as capable of going to heaven and is as

" ' '*' pure as those who have performed meritorious deeds.

But before going to the text-books themselves I propose examining
very briefly the cases in which an opinion contrary to that held by this
Court is to be found. Such an examination will best show the difficulties
which have been felt in the minds of Indian Judges, some of them Judges
of exceptionally high authority, and which have led those Judges to the
conclusion that Courts in India are compelled to treat an adoption of this
nature as an aot which cannot possibly be performed and which must
therefore be considered utterly null and void.

The cases to which wo were referred in the argument as cases in
which the adoption of an only son had baen fiaa'ly and in definite terms
held to be invalid, were four in number :
Nundram v. Kashe Pandey (1).
Manick Ghunder Dutt v. Bhuggobutty Dossee (2).
Upendra Lai Boy v. Srimati Rani Prasanna Mayi (3).
Wamin Raghupati Bova v. Krishnaji Kashirav Bova (4).
In the first of these cases the ground upon which such an adoption
was declared invalid was the opinion given by the Pandits who were con-
sulted that according to the law current in Tirhoot the adoption of an only
son was invalid.

[112] I have been unable to consult the reports in which this case
isconoained, and the only reference to it, as given in I. L. B 3 Calc.
p. 450, contains none of the reasons which led the Pandits consulted to form
that opinion or of the reasoning by which the Judges felt constrained to
accept that opinion without reserve. The oasa therefore cannot ba pressed
further than this, that it is an authority in favour of the view that the
law as understood by Pandits concerning such adoptions in Tirhoot and
as current in the years 1823 and 1824 was to the effect that an adoption
of this kind is invalid.

In the second case Mr. Justice Markby, and with him the learned
Chief Justice, Sir Eichard Garth, held that the entire authority in Bengal
was against the validity of the adoption of an only son, and that for all
classes of Hindus in Bengal such an adoption must be held invalid
wherever the effect of the adoption if valid would be to extinguish the
lineage of the natural father and to deprive the ancestors of the natural
son of the means of salvation.

The third case is the one in which Mr. Justice Mitter pronounced
that the adoption of an only son was forbidden by the Hindu Law ; that
the subject of adoption was inseparable from the Hindu religion itself,
and that all distinction between religion and legal injunction must be
necessarily inapplicable to it. He also enunciate! his opinion that one
of the essential requisites of a valid adoption is that the gift should be
made by a competent person, and that the Hindu L-iw said distinctly
that the father of an only son hid no such absolute dominion over that

(1) 4 Bel. Hep. 70. (3)30.443, (3) 1 B.L.R. A.C. 231, (1)146.219.

442



YII] BENI PBASAD v. HARDAI BIBI 11 AH. 114

son as to make him the subject of a gift. From this he naturally went 1892
on to say that the doctrine of factum valet would not help towards render- FEB. 4.
ing such an adoption when made a valid act.

There remains the case in which the learned Chief Justice of Bombay,
Sir Charles Sargent, and with him the rest of the Judges in Full Bench BENCH,
assembled, concurred that a previous Full Bench had decided after solemn ii~T~B7
argument that the adoption of an only [113] son was by general Hindu -F R i
Law invalid, and that no reason had been assigned which could justify ii WN
interference in that decision. (1892) 181

The judgment which has just been delivered by Sir John Edge, and
which I had the privilege of reading before it was delivered, contains such
a careful and exhaustive examination of these cases and of the influences
under which those precedents were apparently prepared that it is quite
unnecessary for me to take up the time of the Court with observations of
a like character. The reasoning of the learned Chief Justice appears to
me exhaustive and convincing upon this part of the case. I shall confine
my judgment to an examination of the original texts, and show that the
reasons given in each of the judgments above quoted are reasons which
appear to me based either upon a wrong estimate of the value of the
authorities themselves, or of the value which those authorities intended to
attach to such an adoption, or upon an imperfect knowledge of the text of
the authorities. Under this last bead would I also place errors which
have flowed from a consideration of a single text detached and apart from
its context.

I wish to add that I do so with extreme diffidence, and with the pro-
foundest respect for those from whom I are compelled to differ. For it
cannot be denied that the late Mr. Justice Dsvarka Nath Mitter was
versed in the Sanskrit language and that he, Mr. Justice Markby, Sir
Michael Westropp and others who acquiesced in these reasons were law-
yers who had devoted considerable time and attention to the subject of
Hindu law,

In order to arrive at a right conclusion as to what is or is not for
bidden by Hindu Law, it is necessary to define accurately the position
occupied by the writes of the texts that will presently come under examina-
tion. These writers may be placed, so far as sequence of time is concerned,
in three groups. In the first would come Manu.Vaaistba and Yajenavalkya,
in the second Narada and Vijnaneswara, and in the third by himself
Nanda Pandita, the autnor of the Dattaka Mimansa. I do not propose to
enter into any abstruse questions of chronology ; it is sufficient for my
purpose to show that there is a broad line of demarcation in point of
time and also of binding authority between these several groups of [114]
authorities. Nor would I deem it necessary to deal with the question
at all, were it not for attempts made in the course of argument to treat
all the authorities cited as entitled to equal weight and respect. True cri-
ticism teaches very differently. It is conceded that what is now received
and known as the " Institutes of Manu " may be taken to be anterior in
point of time, or at any rate to represent m6re accurately than any other
work the oldest exposition extent of Hindu Law. It is asserted by some
that the author or authors were men who possessed and did wield the
authority of kings. So far as those Institutes are concerned, I shall show
that from either point of view, viz., that whether the authors were law-
makers and law givers or whether they were merely law-teachers, the
result, so far as the present question is concerned, is the same. Every
orthodox Hindu would unhesitatingly allow that Manu, Vasistha and

443



14 All. 115 INDIAN DECISIONS, NEW SERIES [Yol.

1892 Yajnavalkya received what they afterwards promulgated direct from Divine

FEB 4. sources. He would maintain or acquiesce in the view that every word

uttered by these Sages stands above criticism and should be deemed bind-

EULL ing upon the conscience if not upon the conduct of everyday life. The

BENCH, second group he would pub on a different footing ; be would probably allow

-"" that the text of Narada was of very great weight and that Vijnaneswara

was a commentator entitled to much respect, but still only a commentator.

* ^ n ' ne ca80 ^ both and especially of the latter, criticism would not be



W

" resented, particularly when there appeared to be conflict between them and

92) 181, ^e g a yi a gg o f ^g fi^ g roup o f writers. And when the third group is

reached, he would ba prepared to allow that the work of Nanda Pandita

is as much open to review as the text of any commentator of the present

school.

As, however, the present question cannot be dismissed as the more
orthodox Hindu would dismiss it, with the mere dictum that the answer
to it does or does not rest upon Divine revelation, I am oomp3ll8d to add
a few further remarks upon the position occupied by Vasistha, Manu and
Yajnavalkya.

The fact that what we possess of the sayings attributed to the writers
in the first group has coma down by tradition, shows that [l 15] those
sayings were possessed of vitality strong enough to defy the power of time.
Even if they do contain words that have been misunderstood or miequot-
ed, even if they contain additions or interpolations, tha words misunder-
stood, the additions and interpolations are of venerable antiquity, and
have so far been accepted by the generations through which they have
passed before they reached the hands of the commentators that no distinct
command contained in them can now be said not to amount to a command.
They are sayings which do constitute law, and where they have to be
explained away or added to, the only safe ground upon which such
explanation or addition can be accepted is that the explanation or addition
springs out of or rests upon ff^nr or ^nr*T which terms may, if freely
translated, be said to represent " custom " in the proper and legal sense
of the word. I shall presently show tha^ Manu himself does nob object
to such custom being accepted as law, provided it be ascertained and
settled after enquiry made by a sovereign power who knows the Sacred
law.

The authority of Narada, however, and of the commentators after
him rests upon a very different footing. The highest position which
Professar Jolly, who has made Narada's work the subject of special study,
would allot to his Smriti is that it is an independent and therefore specially
valuable exposition of the whole system of Civil and Criminal Law as
taught in the law schools of the sixth century of the Christian era. This
is, I venture to think.a right estimate. As for the rest their authority is in
my opinion almost, if not quite, as much open to examination, explana-
tion, criticism, adoption or rejection as bhe work of any scientific treatise
on European or American jurisprudence : where they deviate from or add
to the Smritis, great caution is required in adopting their gloss, and still
reater caution if it is made to appear that fr^TR" or ^HT is in apparent

harmony with the Smriti and at discord with the gloss.

Their Lordships of the Privy Council have (1) recognized that the
authority of Manu is one which may properly ba referred to when [116] it is

(1) namalakhsmi Ammal v. Sivanatha Perumal Sethurayer (14 M.I. A. 570).

444



YII] BBNI PRASAD V. HARDAI BiBI 14 All. 117

necessary fco resort to first principles in order to ascertain and declare the 1892
Law. I propose to refer to it for two purposes : PBB. i,

1st To point put what the Institutes of Manu teach as Law to be
enforced by a king upon his subjects. So far as I am concerned, it seems
to ma treading on dangerous ground to lay down as positive Hindu L%w
which is to be enforced by our Courts any precept which is foreign to HA. 57.'
the teaching contained in the Institutes of Manu. _

2nd To bring together all the texts which are contained in the ' iL"
Institutes of Manu on the subject of adoption. (1892) 161

As regards the first point it will he remembered that Manu opens
with a demand on the part of the great Rishis to be taught precisely and
in due order the sacred laws appertaining to the different castes. In
complying with their request after certain preliminary remarks upon
the creation of the Universe, Manu is described as laying down that in
his work the sacred law has been fully stated as well as the good and
bad qualities of actions and the immemorial rule of conduct by all the
four castes. Thy rule of conduct is transcendent Law, whether it be
taught in the revealed text or in the sacred tradition, hence a twice-born
man who possesses regard for himself should be always careful as to it (1).
He further teaches in the second chapter and 6th verse that the whole
Veda is the source of the sacred Law, next the Smriti (or tradition) and
the virtuous conduct of those who are learned, also Achara (or the customs)
of holy men, and self-satisfaction.

The seventh chapter is entirely devoted to the duties of kings, and
very significant verses in that chapter as to the view which Manu, and
with him. every true Hindu, would take of Law, are the 14th and 18th
verses, which run as follows : " For the (King's) sake the Lord formerly
created His own Son, Punishment, the protector of all creatures and the
(i.e., an incarnation of the) Law, formed of Brahmans' glory."

" Punishment alone governs all created beings, punishment alone
protects them, punishment watches over them while they sleep, the wise
declare punishment the law."

[117] Chapter VIII is devoted to an exposition of the civil, the
criminal and the ceremonial law which a king according to Manu is bound
to administer. In the 41st varse of that chapter we read that a king
" who knows the sacred law should enquire into the laws of "caste, of
districts, of guilds, and of families, and settle the peculiar law of each."_

It is worth nothing that the word translated " settle " STRTTT^I^.
in this verse according to a commentary (the Manvarthachandrika, written
by Raghavananda Sarasvati) should be read MKIMI^^ which would make
the last clause run, " Protect the peculiar law of " each." Observations
on the subject of interest, debt;, pledge, contract, fraud and force as vitiating
contract, bailment, sale and gift without ownership, title by purchase,
wages, master and servant, boundary disputes and other kindred matters
are spread over some 120 slokas. As many more slokas are taken up
with assault, theft, and other crimes. I have examined the whole of this
chapter with the utmost care, and there is not one word in it which
attaches any disability or punishment to, still less contains any prohibition
against, the kind of adoption now under consideration. The ninth chapter
is first devoted to the propounding of the duties of husband and wife. The
next subject treated in it is the subject of inheritance, and of this chapter

(1) Chapter I, vv. 107 and 108.



14 All. 118 INDIAN DECISIONS, NEW SERIES [Yol.

1892 I shall have more to say when I bring together the verses relating to adopt-

. FEB. 4. icn. I pass it over for the present with the remark that anyone who

seeks to find in ifc any disability or punishment attached to or direct!

FULL prohibition against the adoption of an only son will weary himself in

BENCH, vain.

~~~ In the eleventh chapter the subject treated of is oenance. Offences

are classified therein as Mahapatakas (mortal sins) and Upapatakas (minor
1 ' IL 8 * offences, and of both verse 108 says that by means of the penances laid down
i' '? fe k verse8 P r0 eding verse 108, "men who have committed mortal sins
1 "may remove the guilt, but those who have committed minor offences
"causing loss of caste" can remove their guilt by the penances set out in the
verses following verse 108. This chapter has also been considered by me
with minute care and attention The range of acts which are classified under
mortal [118] offences and minor offences is a very long and varied one.
The only text which can by any possibility bear upon the performance of a
sinful or invalid adoption is verse 66, and this runs, as follows : " Neg-
lecting to kindle the sacred fires, theft, non-payment of (the three) debts,
studying bad books and practising dancing and singing" are all (see verse 67)
classified as minor offences causing loss of caste. The text of verse 66
contains only the words =h u iMHHi*<m which literally translated is non-
payment of debts. I think, however, that it is by no means forcing the
words to place upon them the interpretation that they refer to the non-
payment of the " three debts," a term familiar to every Hindu. One of
the three debts is the procreation of a son. If the verse does not apply
to those three debts there is again no offence in this list which can be
held to inoludethe offence of bringing about an unlawful or sinfuradoption.
If the verse does allude to such an adoption, then the act is an Upapatak
or minor offence. Verses 72 and 108 et seq. teach how such an offence
can be expiated. This penance may be briefly described as living in a cow-
house for a month, fasting for two months more, worshipping and serving
oows, and culminates in the giving of ten cows and a bull to Brahmins.
If his conscience is particularly sensitive the offender may add strict fasting
relieved only by a meal once a day on boiled barley gruel. I mention
this detail in order to give some appreciation of the estimate in which the
offence, if it can be called one, is held, and the comparative ease with
which it may be expiated. Verse 240 teaches that if these austerities
are performed the offender is freed from all guilt. I must not dismiss
this chapter without the further observation that the disability of exclusion
from inheritance has not been overlooked. It is a disability prescribed
as attaching to one who associates with an outcast (v. 185).* The follow-
ing verses, however, show that upon performing the necessary penances
even such an one can recover his position purge himself of his offence, and
free himself from the disability of loss of inheritance.

[119] From this resume, and I think it is one which will bear close
examination, the following conclusions appear to be established :

1st. That according to Hindu Law as propounded by Manu, an act
prohibited is an act for which punishment is prescribed by the same law.
2nd. That nowhere is a king enjoined to regard a wrongful adoption
as an act which is to be followed by ^f or punishment.

* This disability is also mentioned in the Chapter on Inheritance ; but as no men-
tion is made in that chapter of the adoption of an only son it is not mentioned as a
disability attaching to such an act,

446



YII] BBNI PRASAD U. HABDAI BJBI 14 All. 120

3rd. Thab such an act is nob alluded bo in bhe breabise on civil law,



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 67 of 155)