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still less is any disabiliby prescribed for ib. FEB. 4,

4th Thab at bhe oubsido such an acb is an upapatak, causing it is
true, temporary loss of caste, but easily expiated and after expiation as

much forgobben as if ib never had been committed at all. BENCH.

5th. Thab bhe possibiliby of exclusion from inheribance as a disabiliby ,."7""" R7

is nob a consequence which has escaped bhe abbenbion of Manu, bub bhat ,- R V

it has been nowhere laid down as a consequence for bhe adopbion of an ' ~

only son 12A.W.H.

yuj OULI. (1892) 161

To bring together bhe several bexts to be found in Manu on bhe sub-
ject of adoption. They will be found to be very few indeed, and occur in
the ninbh chapber only. Verses 141 and 142 run as follows : " If bhe man

" who has an adopbed son possessing all good qualibies 3T bhab same

" shall take the inheritance though brought from another family ; an adopt-
" ed son shall never take the family and estate of his natural father, the
" funeral cake follows the family and the estate, the funeral offerings of
" him who gives cease."

Verse 159 mentions the son adopted as one of the six heirs and
kinsmen : versa 168 is bhe mosb imporbanb of all and defines bhe qualifica-
tions necessary for a good adoption. Ib runs as follows :

\



" Whom bhe mother or bhe father give, with 'water,' a son, in distress,
"similar, endowed with affection, he is bo be deemed a Datrima, one
"brought forth." In this translation I have attempted to follow the text
word by word, and without interpolating or [120] baking away any
particle. This will account in some measure for the roughness of the
translation, but in an important passage like this, it is a matter of neces-
sity to weigh each word and to give its proper weight and significance.

I have been referred to no other text, nor have I either on previous
occasions, when I made the laws of Manu the subject of special study, or
on the present occasion, when I have attempted bo refresh so far as time
would allow, my memories of past sbudy, discovered any texb which lays
down any other qualification or disqualification connected with an adopted
son.

Now a close examination of these bexbs appears bo establish the
following conclusions.

1st,. That Manu did devote consideration to bhe qualifications which
go to the essence, if I may call it, of an adopted son, or, to use an expres-
sion which has found favour with some learned Judges, the capacities
which must unite in a person whom another wishes bo give or take in
adoption.

2nd. That as the result of such consideration he solemnly formul-
ated the following as necessary qualifications :

(a) Gift by mother or father.'

(b) Gift evidenced by an outward symbol, viz., the ceremony of

water or "waters.".

(c) Gift of a son.

(d) Gift in distress.

(e) The son given must be similar.

(/) The son given must be endowed with an affectionate disposition.



14 All. 121 INDIAN DECISIONS, NEW SERIES [Yol.

1892 One further qualification may perhaps be inferred, from verse 141,

FEB. 4. viz., that he must ba a son possessed of all good qualities^ bub the words

used in that verse probably are words pointing to versa 168, aad " all the

FULL good qualities " to which thaae particular words refer ara only the several

BENCH, qualifications which are included within the four corners of verse 168.

[121] Now after this explanation of the only verses which mention
14 A. 67 adoption, and I hava laboured to keep with the utmost closeness to the
(P.B.) text,, it must strike even a casual observer as curious and extraordinary
12 l.W.N. fch a f; M anu should insist upon, as necessary qualifications, that the son
(1892) 181. mus t be similar, in whatever that similarity may consist, chat he must be
endowed with affection, and that he should overlook the qualification
that he must not be an only son. To my mind, the one only legitimate
conclusion that can be arrived at by any thoughtful and well-balanced
mind, is that at the time when the Institutes were banded down and
first received, similarity in point of caste was a most necessary qualifica-
tion ; to be endowed with an affectionate disposition was a qualification
second only to the former ; but that no thought was then received as
current which pointed to the necessity of an adopted son being chosen
out of a family which contained mora than one son. The difficulty
of importing the qualification that the son adopted must not be an
only son into this text of Manu, was a very serious difficulty to the
commentators who wished to advocate it. They were compelled to
fall back upon verses in the ninth chapter and to weld them in with thia
verse. The verse uon which they rely is verse 138 in Chapter IX. That
and the preceding verses are as follows :

V. 137. By a son a man obtains victory over all people ; by a son's
. son he attains immortality (not the immortal abodes). Then
by the son of chat son he reaches the region of Brahma.
V. 138. Since the son delivers the father from the region called
"Put" he was therefore called "Putra" by Brahma himself.
I shall allude to verse!38 again : if verse 137 stood aloae the primary
idea of a son exactly corresponds to that of the psalmisb. The man that
hath sons shall "speak with his enemy in the gates."

From these texts the commentators claim the inference that Manu
did know of the essential qulification that a son adopted must not ba
an only son. AH I would say is that, if he did, it is and ever will be to
me a mystery why be should have left it as [122] an inference and not
mention it in the terms either of a positive direction or prohibition.

It is enough to pass from the consideration of Manu with this result
that "the want of authority to give or to accept and the imperative
interdiction of adoption" which prevented Sir Michael Westropp from
applying the maxim factum valet to the adoption of an only son is not to
be found in the text of Manu, still less is there any text to the effect that
the father of an only son cannot give, that his gift cannot ba accepted,
and that the son cannot be given.

The Dharma Sashtra of Yasistha, or as much of it as has been
preserved, upon the two points with regard to which I have already
examined the Dharma Sashtra of Manu, is much to the same effect. On
the first point, viz., what is to be considered the law of the land, its
teaching is as follows :

The sacred law has been settled by the revealed text and by the
tradition ; on failure of these the practice of the Shistas (or men whose
heart is free from desire) have authority. Manu has declared that the law



11] BBNI PBASAD V. HAEDAI B1BI 14 All. 124

&t countries, castes and families (may be followed) in the absence of rales 1892

of fche revealed texts (v. 17, Chapter I.) p BBt ^

The doctrine of Mahapatakas and Upapatakas or minor offences

causing the loss of caste (Chapter I, vv. 19 23) ; and also punishment as FULL

one of the chief duties of kings, is recognized. (Chapter XIX, v. 40). BENCH.

Penance (Chapter XX), is recognized and also its efficacy for remov-

ing the taint of guilt. " *' n

The one passage of great importance however is contained in the "*4r
opening verses of Chapter XV, and it runs as follows :



" Man formed of uterine blood and virile seed, proceeds from
" his mother and his father as (an effect from its cause). The father

[123] and mother have power to give, sell and abandon him, but-^

" should not give or should not take an only son, for he is for the pro-
11 longation of the line of ancestors."

It is contended and has been contended before us with great persis-
tence by Mr. Banerjee that we must accept this saying of Yasishtha's as
a direct prohibition having the force of law.

The first difficulty connected with its acceptance as a direct prohi-
bition is that the words which represent " he should give " and " he
should take " are verbs couched in the optative mood.

Now the Sanskrit language permits of a verb being conjugated in three
amongst other moods, viz., the imperative, the subjuntive, and the
optative. The imperative signifies as in other tongues, a command or
injunction, an attempt at the exercise of the speaker's will on some
one or something outside of himself. The subjunctive may be omit-
ted as it became very early extinct or all but extinct. The primary
office of the optative is the expression of wish or desire. In the
oldest language its prevailing use in independent clauses is that to
which the name optative properly belongs, " but the expression of desire
" on the one hand, passes naturally over into that of request or entreaty,
" so that the optative becomes a softened imperative ; and on the other
" hand, it comes to signify what is generally desirable or proper, what
" should or ought to be and so becomes the word of prescription ; or yet
" again it is weakened into signifying what may or can be, what is likely
" or usual, and so becomes at last a softened statement of what is."
Whitney, paras, 572575.

It may, however, be said and with truth that nearly every text con-
tained in Yasishtha runs in the optative mood, and that) in the classical
language no sharp line of division exists between the imperative, subjunc-
tive, and optative.

Both such statements if made would need qualification. Vasishtha
can, as for instance in Chapter XI, verse 45, give a very imperative
direction, and does do so by using after the optative dadyat (the very
mood and verb used for " he should give " in Chapter X, v. 3 the
rerse which deals with the giving and taking of an only . son) the

[124] adverb s^-m^. He does not add this adverb in Chapter X, v. 3,

and the inference we are entitled to draw is either that he felt the precept
of giving an only son could not be enforced as a law and mast be left as

449
A VII 57



14 All. 125 INDIAN DECISIONS, NEW SERIES [Yol.

1892 a desire, or that he never meant it to reach a higher platform than that of
- I'M, 4, entreaty or aesire.

The second qualification is that, while it may be said that there exists

FULL no sharp line <pf division between the imperative and optative moods ifc

cannot be denied that there does exist a difference of degree. One would

not expect fro find a softened form of imperative used when the object was

11 A. 67 to stigmatise an act as impossible or as an act forbidden by a strong

(F.B.)= interdictory mandate.

12 A.W.N. However, the reason why I am not prepared to attach to this verst

(1892) 161. the force of a direct prohibition rests not on the grammar only, but upo
the treatment of the subject of adoption by Vasishtha himself, the second
of the subjects proposed by me for examination. In the sixth verse of the
fifteenth chapter the man who desires to adopt a son is advised to take
a not remote kinsman, just the nearest among his relatives. If after so
taking him the adopter entertains doubt, and this doubt, the commentators
explain as a doubt regarding the caste or other qualificacions of his adopted
son, the adopter is advised to set him apart as a Sudra. Now if it bo
conceded for the sake of argument that one on the qualifications is a doubt
whether or not he is an only son, then according to Vasishtha the expe-
dient course to adopt is to set apart the unfortunate boy as a Sudra. Ifc
is not said that he becomes a Sudra or ceases to belong to the family or
that his adoption becomes ipso facto null and void. And lest any one
should say that he can never be readmitted into caste, Vasishtha in the
17th verse of the same chapter adds, that the performance of penance
will enable any outoaste to readmission even to sacred ritas. But as I
said before, whether this was the qualification alluded bo by the writer
is, and must probably remain, a conjecture.

It may be said with safety that the adoption of an only son is an
inexpedient act. Any assertion that Vasishtha meant more is matter of
doubt.

[12S] Once more Vasishtha deals with the question of inheritance and
exclusion from inheritance. Thus Chapter XVII, vv. 52, 53, " Those
11 who have entered a different caste, eunuchs, madmen and outcastes,
" receive no share." No allusion is made to only sons who have been taken
in adoption, and the absence of any mention of them cannot be said to
have been the result of forgetfulness or accident.

There remains however a still further reason, and one which will
probably be appreciated still more strongly by Hindus, and after all the
only way of attaining a proper knowledge of Hindu Law is by placing one's
self, as far as foreigner possibly can, on the standpoint from which a
Hindu would look at the question. To import foreign ideas and bring
them to bear upon interpreting Sanskrit texts when modes of interpreta-
tion sanctioned by Hindu logicians of the highest authority are forthcom-
ing is an obvious error. In the present case we have the advantage of such
a guide in the Purwa Mimansa of Jaimini, Chapter I, section 2, verses 26-
30. That learned philosopher about whose authority there is no room for
doubt lays down as a rule of interpretation both for civil and religious
ordinances that where a text is followed by a clause assigning a reason, a
doubt at once arises whether such texts are simply commendatory or
obligatory. Now the word Jaimini uses in this passage for obligatory is
expressed by a gerundial participle. The force given by such participles as
this passage shows and as Whitney points out is a force expressing "some-
" thing which is to or which ought to suffer the action expressed by the
41 root from which they come" (section 961).

450



BBNI PKASAD V. EARDAI BIBI 14 All. 127

This rule of interpretation coincides with the natural construction 1892
from a grammatical point of view. According to both, this text expresses FEB. 4.
nothing more than an act of expendiency.

No text of Vasishtha was pressed upon our notice beyond the first FULL
four texts and Chapter XV. So far as I have been able to examine the BENCH.
original and the translation as contained in the sacred books of the East,
Volume XIV, there is no other text which bears directly upon the subject.

[126] The law, therefore, as far as it can be gathered from Vasishtha, jFj 8 ^
probably amounts only to an expressoin that the adoption of an only son , 18fl ok J*j
is an inexpedient act and cannot if a regard to rules of construction
approved by Sanskrit writers themselves be had be with safety said to
amount to a direct prohibition. There is no text declaring such an act
impossible or null and void. At the very outside, and even this I find it
difficult to concede, it may be an act quod fieri non debet.

The act is entirely omitted from the list of acts which amount to
Mahapatakas, and can only by a strained interpretation be included in the
Hat of Upapatakas.

I have gone with great care and attention through a text of Vasisbtha
published in the year J805, and I have also compared the translation com-
piled by Dr. Biihler in 1882 after he had the good fortune to consult and
examine the only three complete manuscripts of this writer which had up
to that time been found. There is, as I have already said, .from first to last,
no allusion to the region termed " Put." The idea of a son and the benefit
to be derived from him are given in chapter XI, vv. 41 and 42, which are
as follows :

The ancestors always rejoice at a descendant who lengthens the line,
who is zealous in performing funeral sacrifices and who is rich in Gods,
and Brahmanp. The Manes consider him their descendant who offers
food at Gaya, and they grant him (blessings) just as husbandmen produce
grain on well-ploughed fields.

So remarkably free is Vasishtha from the idea of a son as being

requisite and necessary for salvation, that I felt no little surprise when I
came across the passage quoted by Mr. Mandlik at page 499 of his work.
I at once turned to the reference in original as given by him in his foot-
note, and found that the words in that passage contained no allusion
whatever to salvation. Fortunately Mr. Mandlik has given the text in ori-

ginal just above his translation, and there the wrods are ^T c^R 3%



[127] The translation of these words are, as already pointed out "but
he should not give or take an only son, for he is for the prolongation of
the ancestors."

A reference to the foot-note shows that, when Mr. Mandlik translated,
he translated not from the text of Vasishtha or even from the text he had
just reproduced from the Dattaka Mimansa. He translated from a reading
in the Mayukha, which substitutes, on what authority I am unable to
discover, ^T ff 312?% 5^^". instead of ^ f^ y^TKI^f <J^JTJ^

Dr. Biihler does not even allude to such a text, and there is no doubt in
my mind from its repugnance to the rest of Vasishtha that the text of the
Mayukha if correctly given is an emendation or improvement on the
original and not the original text itself.

I now pass on to the Dharmasastra of Yajnavalkya. In considering
these I have again been confronted with the difficulty of wand of leisure

4.51,



II All. 128 INDIAN DECISIONS, NEW SEBIES [Yfll.

1892 study these Institutes and the commentary on them by Vijnyaneswara

FEB. 4. in the original and as a whole. I have contented myself with a careful

- study of the passage to which Mr. Banerji referred us (and this was from

DLL the Commentary), and to the translation of that Commentary by Cole-

BENCH. brooke. The passage to^ which he referred us is Co be found in Chapter I,

i i 7 8ecfcion XI > vv - 9 et se Q- * Now this passage needs careful examination.
Verses 9 to 11 run thus



12 A.W.H,

'



n

u 3 ^TRTW sr *r^ ^R ?r% n



[128] " He who is given by his mother with her husband's consent
while her husband is absent or after her husband's decease, or who is
given by his father or by both, being of the same class with the person
to whom he is given, becomes his given son. So Manu declares " and
then follows the 168bh sloka or verse of the fifth chapter.

The commentator continues, " By distress it is intimated that the
son -^ not to be given unless there be distress. This prohibition
regards the giver. "

" Similarly an only son ^ not to be given, for there is the Smriti
of Vasishtha to the effect that " But he should not take or accept an
only son. "

Mr. Colebrooke has translated this passage, and the translation has
been much relied upon by the learned Judges in the rulings referred to at
the beginning of this judgment. But the first point to be noticed is that
the translation contains an undoubted error. The words used by the
commentator are not, from a grammatical point of view, one whit more
imperative than those of Vasishtha.

Next it will be seen that the commentator bases this dictum, that an
only son is not to be given, on the text of Vasishtha, and I have already
shown what only that text can with safety be held to mean.

Thirdly ; it will be noted that the commentator, while expressing an
opinion that there was a prohibition against the giving of a son when there
was no distress, and a similar prohibition when there was an only son,
passes over in silence any prohibition as regards the taker, Now one
leading idea which runs through the Commentary of Vijnyaneswara, on
Yajnavalkya is that the essence of a gift consists in its acceptance not in
the giving. His doctrine is, a gift is not a gift because it is given, but ib
becomes a gift when it has been accepted. The whole argument leading
up to this will be found in Chapter I, section 1, v. 10, seq. By his omis-
sion of any text about the taker he has surely stopped short of giving any
[129] sanction to the idea that the gift of an only son was an invalid act.
Fourthly ; another doctrine on which the commentator insists is that
property and propietary right are temporal matters, and not, as some
would bold, the result of holy institutes exclusively.

Fifthly ; he gives, as we would expect, prominence to the text of Manu.
In continuing the disquisition he comments upon the necessity for due

* The sections are those into which Mr. Colebrooke has divided the Commentary.

452



YII] BBNI PRASAD V. HARDAI BIBI 14 All. 130

observance of the requisite ceremonies, and he has already given the fira- 1892

place in his text to the essential necessity of distress as a condition pret FEB.*.

cedent to adoption. Examining the Commentary further, it will be found

that in the second .chapter, section 10, he deals with exclusion from FULL

inheritance. He enumerates a number of persons who are exoiuded from BENCH.

participation in succession. The roll of persons excluded does not differ from

that given by Vasishtha and] Manu beyond that the terms " impotent," 141.8?

' madman," &3,, are explained, and that the commanoator advocates (F.B.).
their maintenance out of the family property although subjecting them to 12 A.W.K,
exclusion froin participation, as we have already seen. There is not one UW2) 161.
word which permits of foundation for the idea that an only son baken
under the guise of adoption is to be excluded from inheritance. Sucb an
idea would militate with the doctrines already set out, it would militate
also with another doctrine of his, that property, however acquired, does
not become invalid because the means by which it is acquired amounted
to an infringement of restrictions. In advancing this doctrine he does not
overlook an objection that might be offered that proprietary right obtained
by robbery and other nefarious means would still be property. This he
answers by saying that such a right is not recognized by the world and
disagrees with received practice. In other words, he recognizes the right
of custom as a controlling power of high authority. Other instances of this
view in his \vork will be found in Chapter I, section 1. vv. 22 and 23, 32,
Ac. Whether then we consider the authorities upon which the commen-
tator relies, viz., Manu and Vasishtha, or whether we consider the text in
the light of the principles that pervade his writ-[130]inga, the inference
is irresistible that in laying down the text as he did, the commentator
meant no mora than to enunciate as Yajnavalkya's and his own views
that the giving of an only son was an optative act, an act of expediency.
Another point which cannot be passed over in silence is the fact that
he too does not import directly and in express terms into the doctrine of
adoption any idea of salvation from " Put " or attainment of hoaven.
Before proceeding to commentators I would again draw a marked atten-
tion to the absence of this point from the texts on adoption in all the
writers of this group. There is only one passage in Manu and that in the
Chapter on the Domestic Life of the Commercial and Service classes,
where the idea is wedged in. Tothatversel shallallude hereafter. In fact
the only idea we have been confronted with when adoption is being
discussed is the solitary one that an only son should not be taken
in adoption because the object for which he was destined was the
prolongation of the line of ancestors, an idea which probably owes
its foundation to vain glory and temporary power rather than to any
idea of spiritual benefit in another world. Even in the Mttakshara
I have been unable to find any such idea, and I have not been refer-
red to any text which would show that Vijnyaneswara gave it his sanc-
tion. The real and legal position of father and son up to the end of
this period of Hindu Law was briefly this : The father was the patriarch
with power of sale and gift over his offspring, a power which could not ba
questioned by the son Thus Manu (Chapter VIII, sloka 416) declares,

' Three persons, a wife, a son and a slave are declared by law to have no
\vealth exclusively their own ; the wealth which they earn is acquired for
the man to whom they belong." And a further principle was this, that a
son, especially if a relation when adopted into a family, was at once made
iind treated as one of the family circle. (Manu, Chapter IX, sloka 169).
The text of Narada was not referred to by the other side in the course

453



14 All. 131 INDIAN DECISIONS, NEW SERIES

1892 f the argument. I Will not therefore refer to it at any great length. Bui

FEB. .4. a consideration of his views on thie subject, if they can be gathered with

- r accuracy from the text, is important for [131] this reason, that it is-upon a

FULL text of his and one of Saunaka that Nanda, Pandit really rests his doctrint

BENCH, that the adoption of an only son is invalid.

'- Narada's work, as I have already said, follows by a long interval of

14 A. 67 j: me j^ wor ]j O f Yajnavalkya and is supposed to have preceded that of



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 68 of 155)