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A digest of the Hindu law of inheritance, partition, and adoption ..., Volume 2 online

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(a) Sir F. Macn. Cons. H. L. p. 218 ; 2 Str. H. L. p. 87. Under
the Roman Law '* Is qui adoptat vindicat apnd prsBtorem filium suum
esse," Gaius I. § 134: after an " in jure cessio'* by the natural father.
The ancient form is given in the Digest (Lib. I. Tit. VII.) the giver
saying *' Mancipo tibi hunc filium qui mens est," and the receiver
** Hunc ego hominem jure quiritium meum esse aio, isque mihi emp-
tus est hoc eere cBneaque libra-" Poth. Pand I. § VIII.

As usual in solemn ceremonies the personal presence of the parties
was necessary. They had to make the prescribed declaration before
a magistrate of high rank, whose authority then attached to the rela-
tion contracted in his presence; mere documents were ineffectual.
lb. An irregular adoption could be confirmed after a judicial inquiry
and hearing those who opposed it. lb. § XV.

(6) Ala)ik Manjari v. Fakir Chand, 5 C. S. D. A. R. 366.

(c) Sootrugun Suipnttij v. Sabifra Dye 5 2 Knapp, 387 ; S. C. C.
W. R. P. C. 109.
{d) Veerapermal Pillay v. Narrain Plllay, 1 Str. 91.
(e) MS. 1675. See above, p. 930.



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Bi. lu, 8. VI, B. 1. 1.] THE PARENTS GIVING. 1119

The presence of the natural or the adoptive mother, it was
held, is not necessary if the fathers bo present, (a) In the
particular case the parties were Sftdras, but the ceremonies
imply the presence only of the fathers (when living) as
indispensable even amongst the higher castes. In a case
where proof of gift was wanting, either by the father or the
mother of the boy, it was said that a deed executed only by
the adoptive father was insufficient to establish an adop-
tion. (6)

Similarly in a case before the Judicial Committee ifc was
laid down that the requisite declaration of gift can be made
only by the parent (c) giving the boy. An instrument signed
by the adopter and declaring the boy his representative is
ineffectual for this purpose, (d) and is needless. A odstri says
" When either of the parents has given a son by pouring
water on his hands the gift is complete.'^ (The gift was in
the question stated as made by the father. )(c') " The parents
need not consult their relatives.'* (/)

The corporeal gift of the boy to be adopted may be made
by deputy as by a wife, or a brother of the real father, or as
a deputy of a widow by her uncle when the request and
assent have passed between the real and the adoptive
parents, (g)

(a) Alvar Ammaiil v. Ramasawmy Naiken, 2 M. S. D. A. R. 67.

{b) Lakshmany. Mala bin Oanu, Bom. H. C. P. J. 1875, p. 186.
See above, p. 910.

(c) See abovei p. 896.

(d) Nilmadliab Das v. Blshumbhar Das, 3 B. L. R. 27 P. C. j S. C.
13 M. I. A. 85.

(c) MS. 1677.


Iq) Vijiarangam v. Lakahuman, 8 Bom. H. 0. B. at p. 256-7 ; Uom-
guhaly. Bhaffirthibai, I. L. B. 2 Bom. 377; Jamnahai v. Raychand,
I. L. R. 7 Bom. 229.


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1 120 THE ACT OF ADOPTIOK. bk. hi, s. vr, b. LJJ


" It is ordained that the husband and wife, among the
SAdras, should bo present, and that they should cause a
Brahmin to make oblation to fire/^ (a)

The wife, as wo have seen above. Section III., may act
under a delegation from her husband in giving or receiviDg
a son in adoption. In such a case the husband's presence
is of course dispensed with.

(1) Adoption by a wife of a son in her husband's lifetime ;
(2) carrying on a suit on his behalf and in his name ; (3) non-
denial of adoption, were held to be strong circumstantial evi-
dence in favour of adoption with the husband's consent and
with due ceremonies performed, (b)

When one of the adoptive parents has died the other may
accept in adoption subject to the conditions already consider-
ed. When both are dead, as the acceptance by either parent
IS impossible, the adoption itself becomes impossible also.
The exceptions admitted in a few cases have been considered
under Sec. III. (c) The law was thus laid down by the High
Court of Bombay : — ^' There must be not only a giving but
an acceptance manifested by some overt act to constitute an
adoption according to Hindft law. (d) Here there is said to
have been a giving, but to whom ? to two dead persons, the
only two who could have adopted a son to the man." {e)


The indispensable manual delivery and acceptance of the
boy adopted (/) implies of necessity his presence at the

(rt) 2 Str. H. L. p. 13U.

(6) Tincoiorie ChatterJeeY. DenoHath Banerjee, W. R. 180-A, p. 155.
(c) Above, p. 1012.
{d) 1 Str. H. L. 95 ; Manu IX. 168.

(e) Per Westropp, C. J., Bhagvandas Tejmal v. Rajmal, 10 Bom.
II. C. R. 2(35.
(/) Steele, L.C. 184.


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BK. HI, 8. VI, c. 1.] PITBLICITY. 1 1 21

ceremony. This gives him the opportunity, should he object
to the transaction, of expressing his dissent, (a)

B. 1. 4.^piiesencf; of relatives.

"The aclopter^s kinsmen ought to be convened, but their
assent is not necessary." (b)


In the quasi-adoptions in vogue amongst some castes of
the Bombay Presidency {c) no forms appear to be used
beyond those intimating assent on both sides, nor is the
presence of relatives thought requisite.

In a kritrima adoption the consent of the party adopted is
essential to the validity of it, (d) and should be expressed
simultaneously with the acceptance of the adopter.

In Macnaghten, H. L. vol, II. pp. 196 ss, will bo found
several cases of kritrima adoptions. Nothing seems essen-
tial but the assent of the parties and of the boy's parents
if they are alive, (e)


To render adoption complete, there must be a public act of
giving and receiving, accompanied by a performance of some
religious ceremony. {/)

(a) Sfte above, A. 3.

(b) MSS. 1634, 1677. If tbo doctiiuc of tbe Sainskdrakaustubha,
as to the widow's independence in adopting be taken as law for tbc
Bombay Presidency, the presence of relatives cannot be necessary,
as an intimation of a superfluous assent, see above, pp. 864, 880, 904 ;
VaMktha, XV. 6.

(c) Above, p. 927.

{d) LachmanLall v. MohunLall, 16 C. W. R. 171».
(e) Suth. Syn. Notes xv. xvi.

(/) S. 8idd€8ory Dossee v. Doargachurn Sett, 1 Bourke, pp. 360, 361,
141 H


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1122 THE ACT OF ADOPTION. [bk. iii,,c.2.

*' It is enjoined that notice of an adoption should be given
to the relations within the (the circle of the) Sagotr Sapindas
and to the Rftja, though no provision appears in case of their
disapprobation, even in adoptions by widows/' (a)

This injunction bears less on the choice amongst different
boys in the family than on the necessity or at least the desir-
ableness of the countenance of all members of the family to
the celebration of a religious ceremony. To show their
assent and presence they ought to sign the deed when there
is one. (b)

'' Intimation of an intended adoption should bo given to a
Mamlutdar or other Government officer of the vicinity, but
the want of it does not vitiate an adoption otherwise made
with due ceremony.^^ (c)

Publicity is not absolutely essential to validity of adoption,
yet it is always sought for on such occasions, (d)


'^ A fortunate day ought to be selected for an adoption." (c)

" The Sankalpa or declaration of desire to adopt must be
made by day. The remaining ceremonies may then take
place by night. A formal acceptance is indispensable." {/)

(a) Steele, L. C. 45. The object of the intimation to Government
where its interests aro concerned may be seen from the cases above,
pp. 1^10-11, and the references at p. 937.

(b) lb. 18U.

(c) MSS- 1G77, 1711; VashUa, XV. «;.

(d) R, Vassereddi Ramanandha Baulu v. R. F. Jtigganadha Baulu,
1 M. S. D. A. Dec. IS'^% p. 520; Ratne Munmoheenee v. Jairmmi*
Bose, C. S. D. A. R. 1857, p. 244; Rame Kishiomonee Dehf^a v. fiflffl
Annndnaih Hoy, C. S. D. A. R. 1857, p. 1127.

(0 MS. 1677.

(/I MS. 167i».


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BK. iii,,D.i.l (a)] STRANGBES, AND GKNBBALLY. 1123


It is not a ground for setting aside an adoption that it
was celebrated not at the usual place of residence of the
parties^ (a) though this is the proper course, (b)

Sacrifice need not take place in the house of the adopter, (c)
but this is usual, (d)


(a). — In adopting Strangers; and generally .

(6). — In adopting Sagotras.

(e). — In adopting Adults and Boys already tonsured or initiated,

(d), — In adopting as a Dvydmushydyana.


The ceremonies used in adoption are either regarded as
essential to constitute the relation ; as sacrificial j as au-
spicious ; as authenticative ; or as simply indicating joy and
generosity. Amongst the Brahmanas, if the S&stris can be
taken as faithful expositors of their law, the first two classes
blend into one. But the second class is of very variable
extent. At pp. 218 ss of Strangers H. L. vol. IL, there is a
description of a very elaborate ceremonial, but at p. 87 this
is cut down to a few simple particulars, the demand after
invitations and notice to the authorities, the gift, the datta
homuy followed after adoption by the upan&yana to be
celebrated by the adoptive father, {e)

(a) Bhaskar Buchajee y. Karoo Ragonath, Bom. Sel. Rep. 25.
(6) Datt. Chand. Sec. II. 9.

(c) Th. Oomrao Singh v. Th, Mahtab Koonwar, 4 N. W. P. R. p. 103.

(d) Datt. Chand. Sec. II. 16 ; Datt. Mtm. V. 15, 21 ss.
(«>) 5t>e above, p. 9^8.


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1124 THE ACT OF ADOPTION. [bk. lu,, d.i.1 (a)

Jagannatha (a) insists on the datta homa ; and on the
Samsk&ras (6) from tonsure onwards being performed in the
adoptive family. The pntreshti^ he thinks^ may be dispensed
with, and this is so in Bombay, (c)

The Vyavahara MayAkha {d) prescribes an elaborate cere-
monial borrowed from Sannaka, the chief elements of which
are those already indicated. That it was not deemed impera-
tive in every particular may be gathered from Steele's Law
of Caste, which describes the requisite ceremonies as fol-
lows: —

*' Of the numerous ceremonies enjoined in the ^ftstras, the following
are the most essential : — 1. Prutigruhu, the formal giving away of
the boy by his parents, and acceptance by the other party, with
the form of Julasunkulp, or pouring water on the hands. Pre-
sents may or may not be given. 2. Mustukawugrun, (e) the placing
the boy in the adopter's lap, the latter breathing on his head.
3. Horn, fire sacrifice performed by the Poorohit or others. This
is said to be unnecessary in adoptions of a brother's or daughter's
son, which are performed by Wakyudau, or verbal gift. Soodms
cannot perform any ceremonies requiring muntrus from the Yedt
(Vedokt-kurum). 4. Deepwaraa, the revolution of a lamp, t
ceremony at Pooja, or worship of the idol. 5. Brihmun Bhojun,
alms of food, &c., to Br&hmuns. Such of these ceremonies as re-
quire the repetition of muntrus, as the M ustukwugrun, &c., can-
not be performed by a female adopter, personally ; she mast go
through the essential form of taking the adoptee in her lap, and
supply funds for Br&hmnn agency in other respects. After these

(a) Coleb. Dig. Bk. V. T. 275.

(6) A list of the Sarask&ras will be found in Coleb. Dig. Bk. V. TT.
133, 134, Notes, and in Steele, L. 0. 28. As the latter says, they are
now much neglected, Steele, L. C. 159.

(c) Steele, L. C 43.

{d) Chap. IV. Sec. V. para. 8.

(e) See above, p. 949. The system of spelling followed by Steele
differs from the one now usually followed.


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Bit. iii,,D.ul(a)] QBNBBAL CBEEMONIBS. 1125

ceremonies (Widban) have been fully performed^ an adoption can-
not be annulled. Pending tbeir performance^ another may be

chosen they are not essential

where the adoptee is of the same gotr. But in case of discovery
that the boy, being of another gotr, ^as not adopted ^ith those
ceremonies, or that be was of another caste, the adoption is null,
and the boy is to receive maintenance as a Dis or slave." (a)

As the S&stris insist frequently on the necessity of the
rites prescribed by the S&stra it may be pointed out that
these are very simple as compared with the elaborate ritual
which has been built up on them in later days. Thus Va*
sistha says: — *' The adopter shall assemble his kinsmen^ an-
nounce his intention to the ruler, make burnt offerings in
the midst of his house, and recite the Vydhritis/' (6)

As caste or local custom may regulate the forms of
marriage (c) so it would seem may it regulate the forms of
adoption. This being so, the Courts have naturally never
insisted on proof of more than the minimum prescribed
by the caste law. {d) What this is has been differently
estimated, but that all difficulties are to be got rid of by
making mere gift and acceptance sufficient for adoption in
all cases is a proposition that cannot be stated with confi*
dence against the numerons opinions of the Sastris of tho
Bombay Courts, (e)

Amongst Br&hmanas there may be a retraction until the
datta homa has been celebrated, but not afterwards, and the

(a) Steele, L. C. 45, 46.

(b) Yasishtha XV. 6. The Vy&hritis are mystic syllables pro-
nounced in offering the fire oblations. Bee Biihler ad loc. The ritual
described by Baudhftyana is more elaborate. See Baudh. Parisishta,
Pr. VII. Ad. 6; Datt. Mim. Sec. V. 42 ; Datt. Chand. Sec. II. 16.

(c) Oatha Ram Mistree v. Moohita Kochin et al, 14 B. L. B. 298;
Rajkumar Nobodip Ckundro Deb Btii-mun v. Bajah Bir Chwndra
Mmikya Bahadoar, 26 C W. R. 404, 414. See above, p. 941.

id) See above, pp. 921, 922.
(,') S*-^ above, pp. 922, 923.


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last rale holds for all cases in which the fire sacrifice takes
place, (a) The homa is thus thought essential to a complete
adoption. (6) The celebration has no constitutive effect at
all^ until^ in its essential parts, it is completed, and a person
is at liberty to change his mind and put aside a boy before
full performance of the ceremony, (c)

Jala Sunkalp, or the pouring of water on the hands, is
deemed an essential part of the ceremony of giving a son. (d)

In all the castes in which the Sfetra ceremonies are
observed at all the placing of the boy in the lap of the
adopting parent is considered indispensable, (e)

Steele says {f) : — " The Putreshta ceremony and the
distinction of nitya and anitya adoptions are not recognized
in Poena.** (g)

The rule formerly announced by the Sadar Court of Ben-
gal was that affiliation, established by sacrifice, is absolutely
essential, (li) and with this the opinions of the Bombay
S^tris agree, at least as to the Brahmana caste. The follow-
ing are instances : —

" The only adoption to be recognized in the Kali Tug, is
the ^ Ddtt Vidhan,^ with assent of parents and due cere-
monies.*' (i)

*^ No adoption is valid unless made with the prescribed
ceremonies. Mere declarations by the adoptive father will

(a) Steele, L. C 184.

(b) Above, p. 934.

(c) Daee v. Motpe, 1 Borr. R. 75.
{d) Steele, L. C. 42.

(e) Steele, L. C. 184.

if) Steele, L. C. 48.

{g) See below, E. 1.

(h) Alank Manjan v. Fakir Chand 5 C. S. D. A. R. 366.

{I) MS. 17.V>.


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Bi. Ill, 8. VI, D.i.l(a)] GBNBEAL CEREMONIES. 1127

not constitute an adoption valid. Nor will the performance
of funeral ceremonies for the adoptive father by the adopted
son/^ (a)

" Sacrifices are to be made according to the Sas-
tras/* (6) " Adoption is a religious act. It requires a formal
declaration of desire to take a son (Sankalp); a formal gift
(Dun) ; and a ceremonious acceptance (pratigraha) . There is
an abbreviated form called Gdmpaksha for one in extremis.
But in no case can the ceremonies be altogether dispensed
with, even though the adopted be of the adopter^s family.
The contrary view of the Dattaka Darpana is rejected.*' (r)
"A person in extremis' ' another Sdstri says, ^'may shorten
the ceremony but cannot omit it, (d) though the Dattaka
Darpana says he may in adopting a relative." (e)

Steele speaks of adoption as '^ sometimes made by nuncu-
pative will at the point of death" in the Southern Maratha
Country. (/) But by this he evidently means merely an
adoption in extremis with ceremonies abridged to suit the
exigency, (g)

(a) MS. 1683.

(b) MS. 1675.

(c) MS. 1714.
{d) MS. 1674.
(e) MS. 1675.

(/) Steele, L. C. 185.

(g) The reader will be reminded of the adoption by testament of Octa-
vius by Csesar, which however was, except in form, only the nomina-
tion of an heir, and had to be ratified by a vote of the people. This was
not really an adoption ; it was merely a mode of designating a succe.*^-
sor, and preserving one's name which became common. (Maynz, Dr. R.
§ 328). In a true adoption under the Hindu law the adopted, except
a dvy^mashy&yana, takes a new name and a pjitronymic from hin
adoptive father (see Omigava v. Ranrjaiuiavda, Bom. H. C. P. J. 1881 »
p. 248). the p&lak-pntra does nof, nor does the kritrima Hon. An


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1128 THE ACT OP ADOPTION. [Bit.ui,8.Ti,D.i.l(a)

^^ No adoption/' a S&stri again declares, '' is valid withoat
the prescribed ceremonies. The dispensationfrom ceremonies
in the Saipskar Gunpatti^ supposing the passage gennine,
extends only to daughters' and brothers' sons/* (a) and
another insists that, " Whatever is done contrary to the
rules of the Sdsfcras must be considered as null and void. ''(5)
But the objections in the case went to the eligibility of the
adopted and the adopting widow's capacity.

The age of the parties has not been thought to make any
difference. An adoption of a married man was said to
require for its validity the performance of the due ceremo-
nies, (c)

A man in extremis adopted a son without ceremonies. The
adopted performed his funeral ceremonies. The S^tri said,
this, according to the MayAkha, constituted the son only a
priti-putra, not an heir, (d)

In the case of a son adopted without any rites by a man since
deceased, the S&stri, not allowing that he was already suffi-
ciently adopted, insisted on the elder widow's competence to
adopt him as the person indicated by her husband, notwith-
standing the opposition of the junior widow. (»»)

In one case the answer was, " The required ceremonies
must be performed by the person adopting. They cannot
be completed after his death so as to constitute a valid
adoption." (No mention of widow.) (/) But another S4s-

adoption by will is not allowed, only a permission to adopt, seeabore.
Sub-sec. III. B. 3.

(a) MS. 1686.

(b) MS. 1672.

(c) MS. 1643. This is the strongest mark of abandonment of right,
and is properly used in sach a solemn transaction as a gift or sale of
land. See Mit. Chap. I. Sec. I. para. 32 ; 2 Str. H. L. 426.

id) MS. 1680.
(c) MS. 1649.
(/) MS. 1G85.


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BK.iii,,D.i.l(a)] GENERAL 0BBBM0NIB8. 1129

tri answered that '' a ceremony begun by a dying person, who
does not live to complete It, may be completed by his
widow/' (a) She may at any rate begin de novo, and this
seems to be generally thought necessary. Thus "n
merely verbal adoption is insufficient, nor can the deficient
ceremonies be supplied after the adopting father's death.
But his widow may adopt anew from the beginning/' (6)

Jagannjltha discusses at some length (c) the question of
whether besides a gift the prescribed religious ceremonies and
samskaras performed in the adoptive family are essential to
adoption. His conclusion is that '^should the oblation to
fire be partly omitted through inability to complete it, the
adoption is sometimes good/' As to the samskdras he
accepts the passage of the E[Alik4 Pur&na which Nilkantha
questions, {d) and derives from it the rule that tonsure and
the subsequent samskdras are at least requisite to the com-
pletion of sonship. (e) Hence there can be no adoption of
a boy whose tonsure has been performed. (/) As there is no
ceremonial tonsure as a samskdra in the lower castes (g)
the obstacle it would create does not exist amongst them, (h)
nor has any rite to be performed in order to complete an
adoption beyond a gift and acceptance distinctly for that

Colebrooke too says — " Adopted sons being duly initiated
by the adopter under his own family name become the sons
of the adoptive parent. The upandyana (thread cere-

(a) MS. 1661.
(6) MS. 1684.

(c) Coleb. Dig. Bk. V. T. 273 ss.

(d) Vyav. May. Chap. IV. Sec. V. para. 20.

(e) Coleb. Dig. Bk. V. T. 183 Comm.

(/) Coleb. Dig. Bk. V. T. 273 Comm. See 2 Str. H. L. 109.
ig) Coleb. Dig. Bk. V. T. 134-, Note. There is in most a tonsure,
but without the sacramental significance.
{h) Coleb. Dig. Bk. V. T. 275 Comm. stib.fin.
142 H


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1 130 THE ACT OP ADOPTION. [bk.ui,, d.i.I(o)

mony) .... must be performed in the uame of the
adopter's gotra.'' (a)

The performance of the sacred ceremonies is not com-
petent to a woman or a man of low caste, since the utterance
of the Vcdic formulas is forbidden to them, (b) The difficulty
is removed by a vicarious performance of these rites. " Like
the consecration and dismissal of a bull^ the adoption of a
son may be completed by an oblation to fire performed
through the intervention of a Br^hmana.^' (c) The Br&h-
ma^a incurs guilty but the spiritual purpose is none the less
achieved, (d)

In Madras \he mere gift and acceptance as in adoption
constitute adoption even amongst Brahmacias. (e) Proof of
the datta homam is not necessary there. The Madras High
Court quoted with approval Sir T. Strangers statement :—

'^ There must be gift and acceptance manifested by some
overt act. Beyond this, legally speaking, it does not appear
that anything is absolutely necessary, for as to notice to the

(rt) Coleb. in 2 Str. H. L. 111. See above, p. 938.
{b) Vyav. May. Chap. IV. Sec. V. paras. 12—15.

(c) Coleb. Dig. Bk. V. T. 275 Comm.

(d) Vyav. May. Chap. IV. Sec. V. para. 14 ; 2 Str. H. L. 89.

(e) V. Si}igamma v, Bauianuja Charlu, 4 M. H. C. B. 165. On this
doctrine the .Judicial Committee has observed : — " Then it has been
more recently decided in the Madras High Court that even in the
case of an adoption by a Br^hmini woman the ceremony is not ne-
cessary. Their Lordships intend to follow the example of the High
Court in this case in not considering to what extent the Madras
decision is correct, and how far the ceremonies may be omitted in
the case of adoption by a Brahmini woman. They may, however,
observe that the reasoning of the Madras Court applies even «
fortiori to ^ddras. The other Indian decisions which have been
cited, and particularly those of the late Suddur Dewanny Adawlat,
clearly show that the present question has long been treated as an
open and vexed one by Pandits as well as Judges. It was so treated
in a case before their Lordships in 1872, S^'ee Narain Milter v. Sree-
muHy Klsli^n Sooiidory Dassee, L. R. I. A. Supp. 149, but was not then
decided, the suit being dismissed upon another ground" Indromoni
ChoiKdlirala v. Behari Lai Mnlh'ckt L. R. 7 I. A. o6.


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BK.iri,,D.i.l(t): IN ADOPTING SAGOTRAS. 1131

Bajali and invitation to kinsmen^ tbey are agreed not to be
so, being merely intended to give greater notoriety to the
thing, so as to obviate doubt regarding the right of succes-
sion, and even with regard to the sacrifice of fire, important
as it may be deemed, in a spiritual point of view, it is so
with regard to the Brahmin only ; according to a constant
distinction in the texts and glosses, upon matters of ritual
observance, between those who keep consecrated and holy
fire, and those who do not keep such fires, i. e. between
Br&hmins and the other classes, it being by the former only
that the datta homam with holy texts from the Yeda can
properly be performed, as was held in the case of the Bajah
of Nobkissen by the Supreme Court at Bengal. . *" {a)

Even in Bombay and amongst the classes who imitate
the Br&hmanas in their ceremonies proof of the homa has
not in all cases been thought essential (6) by the Courts.

In one case it seems to have been held that the religious
ceremonies might be dispensed with even in the case of
Brdhmanas, (c) but no other instance seems to have occurred
in Bombay as a decision of a superior Court.

Online LibraryGeorg Bühler Raymond WestA digest of the Hindu law of inheritance, partition, and adoption ..., Volume 2 → online text (page 47 of 69)