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)~ Vijnyaneswara by an interval of some seven centuries. His works con-
lai.W.N. ^in doctrines decidedly opposed to the teaching of Manu, and it is very
(1882) 161. improbable that a writer of such clearness, as he is, would have ventured
to differ on essential points, unless he had good authority for doing so or
aimed at being a reformer. That he was an author whose writings exer-
cised great influence is evident from this one fact alone, to which Dr. Jolly
testifies, that upward of half his works has been embodied in the autho-
ritative composition of the mediaeval modern writers in the province of
Sanskrit Law (S.'Bk. Bast, * XXXIII and XXI).

< Narada examines at some length the doctrine of valid and invalid
transactions, and the (Conclusion of the whole matter is, according to
him, that validity of a transaction binges upon the independence of the
parties to it. This, it will be perceived, is a new doctrine entirely and is
the key note to the position he takes up about the gift of a son.

The doctrine of invalid gifts is again taken up and examined by him
in the fourth title of law under the head "resumption of gift." Sixteen
kinds of invalid gifts are enumerated, and under none of them can by any
possibility be placed the gift in adoption of an only son. But there are
two verses in the earlier part of the chapter, vv. 4 and 5, which run as
follows :

"An Anvahifca deposit, a Yachita, a pledge, joint property, a deposit,
"a son, a wife, the whole property of one who has offspring."

"And what has been promised to another man, these have been
declared to be inalienable by one in the worst plighd even."

The natural interpretation of these verses would establish first this
result, that under no circumstance whatever, not even in distress, what-
ever Manu, Vasishtha, Yajnavalkya may say to the con- [132] trary, can
a son form the subject of a gift. One turns naturally and at once to the
Chapter on Inheritance and to that on the Duties of Husband and Wife to
see how he will explain the recognition in law of an adopted son. The
result is disappointing. He mentions him only once, and that is when he
is repeating the list of twelve sons given by Manu.

Thus it is easy to see why Narada excludes a son from being the
subject of gift. The son is not an independent person, and as indepen-
dence goes to the validity or invalidity of a contract, Narada boldly enun-
ciates the proposition that the gift of a son at any time and under any
circumstance is an invalid act; he has no place for the doctrine anywhere
that a son is requisite because of welfare in the spiritual world. With this
writer the object and idea of a son is the continuation of lineage (see
especially Chapter XII v. 84).

We have now gathered two distinct ideas, the idea that a son is for
victory over enemies and for continuing the line of ancestors, and therefora
the man who has only one and gives him away in adoption commits an
imprudent act. We have a second idea that of Narada that a son is a
person under subjection and therefore cannot be made the subject of gift.

Baored Books of the East,


It is not till we reach Nanda Pandita that we come across the doc- 1892
trine that the gift of an only son is an offence which threatens both giver TBB. 4>
and taker with the extinction of lineage. The text runs thus :



(tM2) 1Blt

The above text may be translated as foHows :

Now of what kind is the person who is suitable to be adopted as a
son. On this point Sauoaka says, " The gift of a son is not in any case
"bo be made by a man having an only son. The gift of a son is to be
"made with readiness by a man having many sons." The meaning
of the word Eka Putra is a man who has only one son, by him the giving
of a son is not to be made. There is the Smriti of Vasishtha to the effect.
" But he should not give or accept an only son." Now from the use of
the word "gift; " there arises the idea that the property of another is estab-
lished after the previous extinction of one's own property, and also that
property in another cannot be without acceptance. Saunaka implies all
this. Therefore the prohibition against'acceptance also is established by
this text. This also says Vasishtha. " But he should not gave or take
an only sen." For this he mentions a cause. " For he is for the prolon-
gation of ancestors." Seeing that an only son is appointed for the purpose
of prolonging ancestry, loss and destruction of such ancestry must be
understood (to be) in the giving of him, and this is the case of both giver
and acceptor for the reason follows the (case of) both.

There is another text of the Smriti. "The father has power in the
matter of treating of a son and a son's wives, but he has not [134}
power over the son in the matter of sale and gift." And there is the text
of the Holy Saint. " There may be giving except a wife and son" and
this refers to an only son. " In any case " means " In a time of distress."
Thus Narada says, "A deposit, a son, a wife, the whole property of one
who has offspring, and what is joint property, these have been declared
to be inalienable by one in the worst plight even."

This also refers to an only son according to the text of Yasishtha and

The authorities for this proposition are according to Nanda Pandita
Saunaka, Yasishtha and Narada. The texts of the two latter have been



1892 already considered. Nanda Pandifca views them very differently : the

FEB. 4, text of Yasisbtha in big eyes establishes a prohibition against the gift of an

- only son. The text of Narada presents a difficulty, but be gets over it by

FULL an ipsi dixit that Narada referred, when be wrote the text, to the case of

BENCH, an only son, and to no other. For this assertion of his he gives no

r - authority of any kind.

(F B')=> ^k 6 * ex t of Saunaka is very emphatic. It runs thus in the Dattaka

10 i TO M Mimansa.

\\i A.M.JN.

(1892) 161.

But there is one immense difficulty in considering the real meaning of
this text. It stands a fragment which has been presented to us entirely
detached from the context, and neither this library nor, as far as I know,
any private person in Allahabad, is in possession of a copy of Saunaka's
text. Probably if we bad the context we might find that the text was in
harmony with the writings of Manu and Vasishtha. Mr. Mandlik in his
book the Vyavabara Mayukha, boldly maintains that this text as well
as the other is purely a recommendatory one. I was not prepared to
follow him, for so far as my study of Sanskrit had carried me this form
of sentence did represent a strong imperative. Mr. Mandlik's knowledge
of Sanskrit is however more wide and vast than any 1 can pretend
to, and I find by reference to Witney that the interpretation advocated
[135] by Mr. Mandlik is one which that eminent grammarian and scholar
would be prepared to accept. In section 099 of the grammar, be says that
the gerundive used in the same construction as is adopted in. this text not
seldom has a purely future tense,

The authorities then on which Nanda Pandita rests his prohibition
do not when examined bear him out. He is so recent a commentator that
his dicta can hardly pass unchallenged on the score of antiquity.

It is, moreover, not beyond doubt that Nanda Pandita himself may
not have meant to lay down anything more than that the giving and
taking of an only son was a fault and therefore to be avoided. There is a
vast difference between this, in itself an advance upon the older texts, and
between laying down the act as one interdicted by Civil Law.

The ground for holding that Nanda Pandita was not prepared to
interdict the adoption of an only son are briefly as follows :

A more particular examination of the text of the Dattaka Mimansa
shows that Nanda Pandita was in the habit of using when necessary the
more positive forms of prohibition such as t, see section IV, v. 67, and
elsewhere, a fact which affords some ground for the contention that his
dicta upon ^i*i*i do not amount to more than an 'enumeration of the
1 points," if I may use the term, which an adopting father would seek in
bis adoptive son, and do not define an absolute incapacity in fche giver,
taker or subject even if such ideas were recognised by him. The whole
argument contained in section IV is obscure and gets still more obscure
as it proceeds. It is in sharp contrast to the crisp, well-arranged and
well-defined dicta of Narada, and I have already pointed out the unblush-
ing way in which the Pandit perverts Narada's arguments into
a foundation for his own proposition.

Again Nanda Pandita, in the section immediately preceding section
IV, does deal with the case where the rule that a boy of a different caste
should not be adopted has bsen transgressed. What is the result,



the Pandit asks, of transgression, and his answer is not [136] that the 1892
adoption is invalid, but that such a son is to be excluded from participa- FEB. 4.

tion in the estate ; he is, however, entitled to food and raiment from the

adoptive or would-be adoptive father. This section 3 follows section 2, in FULL
which the prohibition against such an adoption has been discussed. BENCH,
Section 4 is followed by no similar question and answer.

Section 5 deals with the ceremonies of adoption, and concludes with
a precept that where the ceremonies fail, the filial relation fails. The (^'B') =
absence of any like precept in section 4 can hardly be due to accident. 12 A.W.M

So much for internal evidence as to whether Nanda Pandica did or (* 892 ) 1& 1 -
did not mean to interdict absolutely the adoption of an only son. That;
evidence is distinctly in favour of the proposition that he did not mean to
interdict the act absolutely.

Now as to the authority to which the Pandit's work is entitled.
Mr. Colebrooke was pleased to term the Dattaka Mimansa "an excellent
treatise on adoption ;" but he does not appear to have pursued to any length
the enquiry how far the author was a man entitled to weight or cognizant
of local custom, especially when he made additions to or offered explana-
tions. of the texts of those whom we may term the Sanskrit Fathers.
Mr. Sutherland writing from Monghyr in 1819 claims for the author that
certain works of his other than the Dattaka Mimansa existed in much
esteem. He maintains though not without apology that the Dattaka
Mimansa is alse held in estimation, by whom it does not appear. The
arguments he allows are often weak and superfluous, the style frequently
obscure and not unrarely inaccurate. The translator adds that the work
has been compiled under circumstances affording little ^facility for enquiry
or collecting information.

Now if 1 am asked to choose on a point of coflict between the
authority of works like those contained in the first two groups of writers
and the work of a man of modern times whose pretension to authority
rests mainly upon the unsupported testimony of modern times and that
testimony wavering and uncertain, my choice is made without hesitation
and without difficulty.

[137] The one justification for Nanda Pandita and his views, if we
must accept them in the direction Mr. Banerji would advocate, is that
local custom has pronounced against such an adoption and that so dis-
tinctly that even Manu himself would require a king to bow to the custom
when administering law to his subjects. Is there any evidence in favour
of this view?

Now there is a certain amount of material, slight it may be, but still
existing in this case, for the inference that the custom of Benares is not
against the adoption of a,n only son. If it were, we should expect to find
at the very least this result that Beni Prasad and his family are or have
been put out of caste or have regained their caste by penance, for they are
Agarwala Banyas by whom the idea of caste and religious observance is
carefully cherished. Mr. Banerji does not for a moment pretend that any
such effect has followed this adoption, and this in the very town where
Nanda Pandita wrote his Dattaka Mimansa and where it is, we are
told on authority, held in much esteem. Now in the Punjab where
custom on the question has been made the subject of judicial enquiry,
the answer to the question has been that such an adoption is valid. (1)

(1) 57 P.R. 1981, floshnak v Tarmal Singh.
43 P.R. 1879, Majja Singh v Bam Singh.
18 P.R, 1870, Adjudhia Parshad v Deiuan (Musammat).

A VII 58

li All. 138 INDIAN DBCiaiONa, NEW SERIES [Vol.

1892 No custom has been pointed out to or discovered by me which maintains
USB. 4. 8U h an alienation to be void.

Thus then after a careful examination of the text writer and com-
FULL mentators, I find

BHNCH. (l) That this Court in 1879 founded its ruling upon what would appear

to be a correct and not a mistaken impression of the text of Hindu Law

14 A. Of , ,

(F.BK- books -

12 A.W.N (2) That no texb writer, except it may be Nanda Fandita, gives any

(1892) 161. countenance to the view that the adoption of an only son would be to
extinguish the lineage of the natural father and to deprive the ancestors of
the natural son of the means of salvation.

(3) That such an adoption is not forbidden by the Hindu Law as
current in these provinces.

[138] (4) I also find that, save in Nanda Pandifca, so far as these
provinces are concerned, there is no real foundation for holding that the
subject of adoption is inseparable from the Hindu religion. Yajnavalkya
and his commentator distinctly incline to an opposite view.

Lastly I find no authority save a distorted gloss upon Narada for
the idea that the father of an only son has no such absolute dominion
over that son as to make him the subject of gift. The text of Narada
does not, apply to only sons, but to all sons alike and is in direct opposi-
tion to texts many and various to be found in all the Dharmshastrag
oited to us.

It will be esaily seen from the above that I am satisfied that
Mr. Oolebrooke's translation is, as the learned Chief Justice has pointed
out, in error, and the error is probably tbe cause why both Mr. Justice
Dwarka Nath Mitter and Mr. Justice Markby were led into the opinions
they formed. Mr. Justice Dwarka Nath Mitter, if he did follow Cole-
brook's translation, appears to have done so without full regard to that
translation as a whole. Sir Charles Sargent adopts Mr. Justice D.
Mitter's view. Sir Charles Turner was no Sanskrit scholar ; the Dattaka
Mimansa and its translation evidently were at the root of bis dissenting
opinion in Hanuman Das versus Chirai.

I have up to the present made little mention of the doctrine that
because a son delivers his father from the region called Put, therefore we
must infer that that adoption is inseparably bound up with the Hindu
religion and the adoption of an only son must be null and void.

My silence is due to the fact that, as I have shewn, the text writers
do not put this argument forward when they are dealing with adoption as
a question of civil law. To them the distinction between religious law
and civil law was not, I venture to think, so obscure or immaterial as some
would endeavour to maintain.

Nanda Pandita, admitted to be an "obscure and not unrarely inaccu-
rate writer," does mingle the two ideas and gets confused in [139] con-
sequence. But Manu keeps them distinct and apart except in his ninth
chapter, and the verse there to be found is generally believed by modern
critics to be a verse 'really suspicious or clearly interpolated.' The verso
I allude to is verse 138, and its authenticity has been suspected for
more than a quarter of a century. That verse does say that because
aon delivers his father from the hell called Put, he was therefore ca
Putra. But the theory of adoption as essential to the well-being
family was earlier than the idea of Put t or of a son as necessary



the libations to the Manes, It had become a recognized means of 1802
continuing by a fiction the line of ancestors, and the element of religion VEB. 4.
was imported into it by the Brahmins when they gained ascendancy. The
foundation of adoption on the theory of salvation is, I am confident, an FUL1
error. The view, which my study of Sanskrit literature leads me do think BBNOK*
is the right view, as to the origin and growth of the law of adoption, has
been well put by Mr. Sarvadhikari, an eminent Sanskrit scholar, in his
Tagore Law Lectures. That writer when dealing with the subject
says : ** l.W.H,

I* (1892) 1M>

It is instructive to observe the feelings with which a son was regard-
ed both in ancient and in mediaeval India. In the hymns of the Big Veda
a son was the delight of his father, and his birth was earnestly desired
to continue the line of his progenitors."

" The religious element had not yet entered into the conception of a
son. The family would be destroyed and the mundane existence of a long
continued line of ancestors would be obliterated, if no son were born in the
family. Keligion, in the Vedic Age, concerned itself with higher things,
and not with the birth and death of a male representative of the family.
The theory of a region of eternal torrneuts which a sonless man would
inhabit was not yet invented. But there is ample evidence to show that
the primitive sages of India most solemnly enjoined upon all their faithful
followers, the duty of begetting a son, and thus maintaining the power
and the honour of the family in which they were born."

In the later stages of the social progress, the birth of a son was felt
as an absolute necessity, not only in this world, but also in the life to come.
Religion had sanctified the natural craving, and the unfortunate man who
was not blessed with a 'son in this world was doomed to a dark and
fathomless abyss of eternal horrors."

[140] Put is not a region known to the Vedas. In the Aitareya
Brahmana one Haris Chandra, who had no son, asks one Narada " What
do people gain by a son whom they all wish for, as well as those who reason
as those who do not reason ? " Here, if ever, was an opportunity to drag
in the idea of salvation from Put, but the idea and the word is not even
mentioned. Even the doctrine of payment of the three debts finds no
place in Narada's answer.

As Brahminioal views prevailed the idea of Put and adoption as
bound up with adoption found places in the texts of the older writers, but
that place was side by side with rites and ceremonies, not with law.

I do not and would not for a moment wish to be understood as
holding that the doctrine that a son is a powerful instrument for securing
future beatitude to his parents is not a doctrine current in these Provinces,
or that an orthodox Hindu would accept my criticism on Manu, Chapter
IX, v. 138. But even he will, I think, on reflection admit that the doc-
trine is a matter of religion not of the civil law, and it is not, as often
supposed, a doctrine which maintains that the possession of a son is the
only means of attaining salvation. The Xllth Chapter of Manu and
other passages show that this is quite a mistaken view. See also Vasishtha,
Chapter IX, si. 12 ; and Cb. XXIX, si. 3,

Nor must it be forgotten that Heaven and Hell are essentially foreign
ideas, if they are understood to mean fixed states of happiness or torment.
Supreme beatitude or Moksha is not made anywhere dependent solely
upon the possession of a son. It seems to me therefore quite unnecessary
to pursue this idea further.



1892 For the reasons given above, my answer would be that the adoption
IEB. 4. of an only son having taken place in fact;, such adoption is not null and
void under the Hindu Law, and under these circumstances the remaining
FULL two questions call for no answer.

Hi.67 NOTE. Except in the quotation at p. 98 from the judg-

(P.B).= ment of the Privy Council in Srimati Uma, Deyi v. Gokoolanand
12 A.W.N. Das Mahapatra, the maxim " Quod fieri non debet factum valet "
(1892) 161. throughout the judgment of Edge, C.J., is erroneously print-
ed as " Quod fieri non debuit factum valet." The substitution
of " debuit " for " debet " was made by mistake, and without
his Lordship's authority.

A. 141 = 12 A.W.N. (1892) 3.

Before Mr, Justice Straight and Mr. Justice Knox.

MUHAMMAD ZAHUR (Plaintiff) v. CHEDA LAL (Defendant}*
[8bh December, 1891.]

Civil Procedure Code, s. 375 A:t X of 1873 (Indian Oxths Act,} s. 11 Adjustment of

The question in a suit was whether the purchase-money for a house, whiob
had been paid by the defendant, had been paid out of his own funds or out of
monies belonging to the plaintiff. A witness for the defence having made state-
ments apparently favourable to the plaintiff's case, the pleaders for both parties
signed and presented to the Court a petition that if upon a particular bond in the
witness's possession it should be stated that the mouey was received through
the defendant, the Court should decree the suit, otherwise the suit should be

Held that this arrangement was not an adjustment or compromise of the suit
within the meaning of s. 875 of the Civil Procedure Code, so as to determine
the jurisdiction of the Court and necessitate its passing a decree according to the

Toe uhs Act (X of 1873) does not constrain a Court to pas? a decision in
favour of a particular party. If a party to a suit says be will be bound by the
oath oE a particular person, s. 11 of the Act only means that pro tinto he will be
bound, i.e , so fur as the matter of that evidence is concerned, and that evidence
will be conclusive as to its truth as against him throughout the whole of the
litigation. But it in no way compels the Court trying the case to accept it as

Vasudtvi Shanbog v. Narain Pai (1) approved.

[R,, 22 B. 680 ; 24 C. 908 = 1 C.W.N. 597 ; 38 C. 386-10 C.W-N. 501 ; 16 Ind. Gas,
733 (734) ; 19 Ind. Gas. 450 ; 6 8.L.R. 166 (167) ; D., 12 C.P.L.K, 56].

THE facts of this case sufficiently appear from the judgment of
Straight, J.

Mr. Amiruddin, for the appellant.

Mr. Conlan and Babu Rajendra Nath Nukerji, for the respondent.


STRAIGHT, J. This second appeal relates to a suit brought by
Cheda Lai, the plaintiff-respondent, against Muhammad Zahur,

* Second Appeal, No. 1424 of 1888, from a decree of Maulvi Zain-ul-abdin, Subordi-
nate Judge of Moradabad. dated the 6th August 1888, confirming a decree of Maulvi
Muhammad Abbas Ali, Munsif of Nagina, dated the 15lb May 1888.

(1) 2 M. 356.



14 All. 148

defendant-appellant, to obtain possession of two-thirds of a house of
which the plaintiff is admittedly the proprietor to the extent of one-third.
The case for the plaintiff as stated in the plaint shortly was that
Hulas Rai was the owner of tha house, that he, the plain [142] tiff,
had acquired one-third of ifc, and that in consequence of disputes between
himself and Hulas Eai that person had refused to sell to him the other
two-thirds. Consequently, said the plaintiff, " I had to get a third
person to act in the matter as purchaser, and that third person was
Muhammad Zahur, the defendant, who is now in possession, but to whom
I handed the purchase-price of the house, namely, Rs. 590, and who
refuses to give me possession, alleging that he and not I was the
purchaser of that two-thirds of the house."

The defendant denied the plaintiff's story and asserted that he was
the purchaser of the house ; that he found the money from his own proper
funds, and that he paid it to Hulas Rai. It was upon that condition of
facts as stated on both sides that the cause went to trial before the
Munsif, and he stated certain issues for determination, into which I need
not more particularly enter, because the main issue to be determined
was, "did the defendant purchase the two-thirds of the house for and on
account of the plaintiff and with his money, and was the amount paid by
the defendant for the plaintiff Rs. 590."

The cause went to trial and a number of witnesses were called for the
plaintiff, and witnesses were also called for the defendant. In the course
of the trial, namely, upon the 12th April a witness of the name of Maula
Bakhsh was being examined on behalf of the defendant, and it was a
matter to which he was deposing that the money paid by the defendant
to Hulas Rai was the money of the defendant. He was apparently asked
questions to show whether the plaintiff and defendant were not upon

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 69 of 155)