Posted On by &filed under Allahabad High Court, High Court.


Allahabad High Court
Bhagwan Singh And Ors. vs Bhagwan Singh, Minor Under The … on 27 June, 1895
Equivalent citations: (1895) ILR 17 All 294
Author: Banerji
Bench: J Edge, Kt., Knox, Blair, Banerji, Burkitt, Aikman


JUDGMENT

Banerji, J.

1. The suit in which this appeal has arisen was brought by the respondents for the establishment of their right as reversioners to the estate of one Madho Singh, and for a declaration that the alleged adoption of the appellant by Madho Singh was void and ineffectual. One of the grounds on which the alleged adoption was impeached was that the appellant was the son of the sister of Madho Singhs mother. The Court below having held the adoption alleged by the appellant to be invalid, this appeal has been preferred, and the only question which we have to consider and. determine is whether the adoption of the mother’s sister’s son by a person belonging to one of the three regenerate classes is valid according to Hindu law. The parties are Thakurs, that is, members of the regenerate class of Kshatriyas. It is not alleged that an adoption such as has been set up in this case valid according to any special custom prevailing in the caste or in the locality to which the parties belong. The case, therefore, must be decided solely with reference to the rules of Hindu law which govern adoption, and independently of any positive custom other than such as may be presumed to be in existence consistently with Hindu law.

2. It is not disputed, and indeed it was conceded in argument, that the principles which apply to the question of the adoption of a daughter’s son or a sister’s son apply equally to the adoption of the mother’s sister’s son, and that if the adoption of a daughter’s son or a sister’s son is void among the three higher classes, it is equally void in the case of the mother’s sister’s son. I may also observe that as regards the present question there is no divergence between the Mitakshara School and the other schools of Hindu law, or between the different sections of the Mitakshara School, and that the rules of law affecting the present question are alike applicable to the different schools. There is also no difference as regards the application of those rules between Brahmans, Kshatriyas, and Vaisyas. It is important to bear these facts in mind in considering the question which we have to decide upon this reference.

3. The question is one of great importance, affecting as it does a large section of the Hindu community, and in determining it I shall consider, first the authority of decided cases; secondly, the authority of modern writers on Hindu law, European and native; and thirdly, the authority of the Dharma Sastras, including that of commentators. I attach the greatest importance to the authority of decided cases, because if they have been uniform and consistent and have extended over a long series of years, the presumption, in my opinion, arises that they have been submitted to and accepted as correctly laying down the law on the subject, and that the usages of the people have been regulated in accordance with them. The rule of stare decisis has always been regarded as a very salutary rule, and it should, in my judgment, be applied even to questions of Hindu law, unless it can be shown that the consensus of opinions expressed in the decided cases was based on a grossly erroneous interpretation of the law, or on a total misconception of what the law really is,–a misconception induced by erroneous translations of original texts inaccessible to the Judges, and misrepresentations as to their true meaning and scope. I would go further and hold that even if in some instances the rulings may have been founded on doubtful authorities, they should not, if they have been uniform, and have covered a long period of time, be departed-from, even at the risk of perpetuating an error, provided that the error was not so gross and clear as to negative the presumption of acquiescence and usage to which I have referred above. “For” to quote the words of Dr. (now Mr. Justice) Guru Das Banerji (Tagore Law Lectures for 1879, p. 16) ” though it is wrong to perpetuate an error, it would hardly be right to rectify the error by unsettling the law and overruling a precedent which might have long bees the basis of mens expectations and conduct.” This principle was adopted by a recent Full Bench of the Bombay High Court in Waman Raghupati Bova y. Krishnaji Kashiraj Bova I.L.R. 14 Bom. 249, where the learned Judges-refused to reconsider the question of the authority of the Dattaka Mimansa and the Dattaka Chandrika as high authorities on the subject of adoption, with a view to secure uniformity of decisions; and they refused to reconsider a previous Full Bench ruling of the ground that for the past ten years the decision of the Full Bench had been regarded by the legal profession as having settled the law on the subjects. In Parbati v. Sundar I.L.R. 8 All. 1, Petheram, C.J. and Brodhurst, J, were of opinion that they were “bound to follow the authority of a long and uniform course of decisions” on the question of the validity of the adoption of a sister’s son. And in the case of Tulshi Ram v. Bihari Lal I.L.R. 12 All. 328, the present learned Chief Justice of this Court decided against the validity of an adoption made by a Hindu widow without the express permission of her husband on the ground that having regard to the fact that the texts of the early commentators are more or less in conflict, to the fact that no single case which arose in the Northwestern Provinces, in oudh, or in those districts in Lower Bengal in which the Benares School is followed” had been cited in support of the validity of such an adoption, and having regard to the four cases cited “he would expect that any one who would now contend that a Hindu widow subject to the Benares School could make a valid adoption to her deceased husband without express authority given by him, would support that contention by clear proof of general usage in the particular district that an adoption under such circumstances was, in the particular district, recognised as valid by those subject to the Benares School.” These observations of the learned Chief Justice apply, in my opinion, with equal force to the present question; and if on this question there exists a long and uniform course of decisions declaring an adoption such as the one set up in this case to be invalid, a Court should, in the words of the learned Chief Justice expect any one who would now contend that such an adoption is valid to support that contention by clear proof of general usage in the particular district that such an adoption was, in the particular district, recognised as valid.

4. Bearing these weighty observations of the learned Chief Justice in mind, I will consider the decided cases on the subject which have been cited to us or which I have been able to lay my hands upon. I may remark that the learned vakil who argued the case for the appellant with much ability frankly admitted that with the exception of two cases, and probably a third, to which I shall presently refer, the authority of decided cases in these Provinces, in Bengal, in Madras and in Bombay, had been uniformly against him since the year 1815.

5. The first case is that of Doe dem Kora Shankho Takoor v. Bebee Munnee 1 Morley, 18 : S.C. East case 20, decided in Bengal on 24th November 1815, in which it was held that a Hindu Brahman cannot adopt his sister son, as it imports incest. It appears from the names of the parties that this was a case between persons governed by the Mitakshara law.

6. The next case arose in these provinces, and is that of Shiblall v. Bishumber S.D.A. N.W.P. 1866, p. 25 in which Ross and Roberts,JJ., held the adoption of a sister’s son to be invalid.

7. In Battas Kuar v. Lachman Singh 7 N.W.P. H.C. Rep. 117 it was held by Pearson and Spankie, JJ. in 1875 that the adoption of her brother’s son by a Widow was invalid. This ruling proceeds on the same principle which applies to the adoption of a daughter’s son, a sister’s son, or a mother’s sister’s son, and is an authority for holding that the adoption of the persons last named is void among the three higher classes. The correctness of this ruling has been doubted, and Mr. Mayne in his well-known work on Hindu Law and Usage (Section. 125) thinks that the effect of the doctrine laid down in it is to introduce into the Hindu theory of adoption a second fiction for which there is no foundation.” With reference to Mr. Mayne’s observations I shall only quote the remarks made by Mr. Siromani in his Commentaries on Hindu law. At page 166 (Second Edition) he says: “If the learned author knew even the elementary canons of our religious observances he could not have made the erroneous assertions contained in his observations.” Adoption being both to the husband and the wife, and an adopted son being as much the son of the wife as of the husband, it is asserted by those who dispute the validity of such an adoption that the test of “eligibility according to the rule of Niyoga and incongruous relationship (virudha sambandha) applies also to the case of an adoption by a female, she being in such case the author of the act of adoption. It is not necessary, however, to enter into a consideration of this question at present and it is immaterial for present purposes whether the ruling is correct or erroneous. There may certainly be two opinions in regard to it. That ruling, however, may fairly Be regarded as an authority for the principle on which the adoption id this suit is alleged to be invalid.

8. In Parbati v. Sundar I.L.R. 8 All. 1, Petheram, C.J., and Brodhurst, J. held in 1885, that a Brahman cannot validly adopt his sister’s son. The learned Judges, as I have said above, refused “to disturb the long and uniform course of decisions by all our Courts, from the earliest times, upon this point.”

9. This case was appealed to Her Majesty in Council. Their Lordships decided the appeal on other grounds–Sundar v. Parbati I.L.R. 12 All 51–but on the question of adoption they expressed themselves as follows: “If it were necessary to determine the point, their Lordships would probably have little difficulty in accepting the opinion of the High Court that a Hindu Brahman cannot lawfully adopt his own sister’s son” (p.56). This is a very strong expression of opinion, and although for the purposes of the case before their Lordships it was obiter, this expression of opinion, coming as it does from the highest tribunal, is entitled to the greatest weight.

10. I have not referred to the case of Luchmee Nauth Rao Naik Raleya v. Musammat Bhina Baee, 7 S.D.A.N. W.P. 441 because, although in that case, the Pandit expressed the opinion that the adoption of a sister’s son was invalid, the question was not decided by the Court, as the case was disposed of on other grounds.

11. The only cases in Upper India in which it is said a contrary view was held were: (1) Ram Chunder Chatterjea v. Sumboo Chunder Chatterjea 1 Morley, 18, decided in Bengal in August 1810; (ii) a case from the District of Mirzapur, decided on 18th July 1808, being case No. XII in Sir William Macnaghten’s Principles and Precedents of Hindu Law Vol. II, p. 185; and (iii) Ckowdree Purmessur Dutt Jha v. Hunooman Dutt Roy 1 Morley 19 decided on 18th December 1837. In the first of these cases the adoption of his sister’s son by a Brahman was held to be valid, but according to Sir Francis Macnaghten the doctrine which prevailed in that case was overruled by a subsequent proceeding in the Supreme court (see Considerations on Hindu Law, pp 166, 168): so that the authority of that case has ceased to be of any value. As for the second case referred to above, Sir William Macnaghten was of opinion that it was a case of Sudras. The question put to the pandits was whether a daughter’s son who had been adopted by his maternal grandfather was entitled to inherit the estate of the maternal grandfather either as his adopted son or as his daughter’s son in preference to his brother and nephews. From the nature of the question put and the answers given, it is evident that the adoption was assumed to be valid, and no question arose as to the validity of the adoption. It does not appear whether the case was one between members, of the three higher clashes, and as the validity of the adoption was not questioned, Sir William Macnaghten was justified in his conclusion that the parties were Sudras, among whom such an adoption is admittedly valid. This case cannot therefore be regarded as an authority in support of the validity of an adoption like the one in question. There is no reason for assuming that the case was not one among Sudras. Had the parties concerned in it belonged to the three superior classes, the probabilities are very great that the validity of the adoption would have been called into question. Taking the case in the light most favourable to the appellant, it is not an authority one way or the other. The third case mentioned above was that of the adoption of a sister’s son in the Kritrima form. As an adoption in that form varies in important particulars from an adoption in the Datiaka form, that case is no authority on the question with which we have to deal. It is thus clear that except in one case, which was a case between persons governed by the Dayabhaga and not the Benares school, and which, again, was apparently overruled in subsequent proceedings, it has been uniformly held by the Courts in Upper India since 1815, that the adoption of a person related to the adopter in the way in which the appellant was related to Madho Singh is invalid.

12. Turning to the Presidencies of Madras and Bombay we find that it was held in Narasammal v. Bala Rama Charlu 1 Mad. H.C. Rep. 420 that the adoption of a sister’s son was invalid; that in Jivani Bhai v. Jivu Bhai 2 Mad. H.C. Rep. 462 and Gopalayyan v. Raghupati Ayyan 7 Mad. H.C. Rep. 260 a similar decision was arrived at that in Minakshi v. Ramanada I.L.R. 11 Mad. 49 a Full Bench held that “it is the general rule of Hindu law that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state.” The cases of Vishnu v. Krishna I.L.R. 7 Mad 3 Vayidinada v. Appu I.L.R. 9 Mad. 44 and Virayya v. Hanumanta I.L.R. 14 Mad. 459 referred to by the learned vakil for the appellant, were decided on the ground of the existence of a special usage sanctioning the adoption in question in each of those cases.

13. The case of Ramalinga Pillai v. Sadasiva Pillai 9 Moo. I.A. 506 was decided by their Lordships of the Privy Council on the ground that the adoption of the respondent had been admitted by the appellant. The marginal note in the report is misleading, as the case was one really of Sudras and not of Vaisyas see Jivani Bhai v. Jivu Bhai 2 Mad. H.C. Rep. 462. This case is therefore no authority on the question before us.

14. In Bombay, so far back as 1821, the Sastris declared in the case of Haebut Rao Mankur v. Gobind Rao Balwant Rao Munkur, 2 Borrodaile, 106 (cited in West and Buhler’s Hindu Law. p. 1027) a son of a daughter, a sister or a mother’s sister to be ineligible for adoption except among Sudras. In Gopal Narhur Safray v. Hanvant Ganesh Safray I.L.R. 3 Bom. 273 it was held that Brahmans, Kshatriyas and Vaisyas “are absolutely prohibited from, and incapable of, adopting a daughter’s or sister’s son or the son of any other woman whom they could not marry by reason of propinquity. All the previous cases, were cited and considered and they showed a consensus of opinion on that side of India on the point. This case was followed in Bhagirthi Bai v. Radha Bai I.L.R. 3 Bom. 298. The only case in which a contrary opinion was expressed was that of Ganpat Rav Vireshvar v. Vithoba Khandappa 4 Bom. H.C. Rep. 130 A.C.J. in which the parties were Vaisyas; but the judgment was based solely on the decision of the Privy Council in Ramalinga Pillai v. Sadasiva Pillai 9 Moo. I.A. 506 referred to above, which was really a case of Sudras; so that the ruling last referred to was founded on a misconception and was clearly erroneous.

15. We have thus, as Mr. Mayne says ( 128), “a singularly strong series of authorities in all parts of India forbidding the adoption of the son of a daughter, a sister or of an aunt.” From a comparison of the reported cases it appears that the cases affecting the present question were more numerous in the Southern Presidencies than in Upper India. It is a well-known fact that the rules of marriage and adoption are more lax in Southern and Western India than in these Provinces, and consequently usages of marriage and adoption have come into vogue in those presidencies which have given rise in those presidencies to a larger amount of litigation involving questions of adoption than in Upper India. It has been truly observed by Mr. Mayne ( 92) that “the effect that every adoption must have upon the devolution of property causes every case that can be disputed to be brought into Court. Notwithstanding the spiritual benefits which are supposed to follow from the practice (of adoption) it is doubtful whether it would ever be heard of if an adopted son was not also an heir. Paupers have souls to be saved, but they are not in the habit of adopting. “The uniformity of decisions on the question of the validity of the adoption of a daughter’s son, a sister’s son or the son of an aunt, and the paucity of cases in which such decisions were given in Upper India, raise, in my opinion, the irresistible inference that such adoptions are rare, if not unknown, and that the usage of the Hindus of these provinces is to regard such adoptions as invalid and not to resort to them. Had such adoptions been common or numerous there would undoubtedly have been a large amount of litigation in connection with them. As every adoption had the effect of diverting the devolution of property from its ordinary channel every person who would otherwise have succeeded to the property which passed into the hands of the adopted son, would undoubtedly have contested the validity of the adoption and the right set up by the adopted son. Not a single case in these provinces has been brought to our notice in which such an adoption was held to be valid, and in the few cases which apparently went into Court it was held to be invalid. It is from a similar absence of rulings validating an adoption in a similar case, and the existence in that case of rulings declaring the adoption to be void, that in Tulshi Ram v. Bihari Lal I.L.R. 12 All. 328 a similar inference was drawn by the learned Chief Justice and the other learned Judges of this Court. As in my judgment it may be fairly inferred that the usage of the people of these Provinces is in accordance with the doctrine uniformly laid down by the Courts ever since 1815, and that that doctrine has thus received the sanction of usage, the duty of a Judge in this country, as laid down by their Lordships of the Privy Council, is plain. In The Collector of Madura v. Moottoo Ramalinga Sathupathy 12 Moo. I.A. 397 their Lordships said (at page 436): “The duty, therefore, of an European Judge who is under the obligation to administer Hindu law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.” Having regard to these observations of their Lordships, it is of duty to give effect to the usage which, in my judgment, mist be inferred to exist in these provinces, and it is not necessary to consider whether the usage has the sanction of the texts of Hindu law.

16. It is a fact which does not admit of question that the right of adoption is not, according to Hindu law, a right unrestricted by limitations. On the contrary, that law imposes on the right of adoption various and important limitations as to the capacity of the person adopting, of the person giving in adoption, and of the person taken in adoption; and when any of those capacities is absent or defective an adoption is void according to that law. Where, therefore, an adoption, which is alleged to be valid, is set up in opposition to the right of succession of a person who would, in the absence of an adoption, succeed to the property of a deceased person, the validity of that adoption should, in my opinion, be established by the person who sets up the adoption and the issue is not on the person who asserts the contrary. Where, as in this case, a uniform course of rulings has pronounced against the validity of an adoption like the one in question, and has thus given rise to an inference of usage, albeit the texts and commentaries may be conflicting, any one asserting such an adoption to be valid must found his assertion on the basis of a specific usage to the contrary, which he must clearly establish. It is, I conceive, a usage of this description to which their Lordships of the Privy Council referred, and it does not seem to me that their Lordships meant to lay down that every disputed question of Hindu law should be decided solely with reference to usage. It has not been alleged in this case that a usage obtains among persons of the class to which the parties to this suit belong or in the particular locality in which this suit has arisen which validates the adoption set up by the appellant.

17. It may be that a contrary usage prevails in the Western and Southern Presidencies. Having regard to the fact that the rules of marriage and adoption are lax in those presidencies, and are not so strictly enforced there as they are in these provinces see West and Buhler p. 888 and I.L.R. 9 All. p. 328 to the fact, for example, that a marriage between the children of a brother and a sister is common in the South, whilst such a marriage is regarded as incestuous in these provinces and is wholly unknown among Hindus of the higher castes, it is not surprising that such a custom should exist in those presidencies. It may also be that a similar custom prevails in the Punjab, but there is nothing to suggest that it obtains in these provinces or in that portion of Lower Bengal which is governed by the Benares School of Hindu law. Mr. Golap Chandra Sarkar’s assertion (Tagore Law Lectures 1888 p. 335) that instances of the adoption of a daughter’s son or sister’s son among the Brahmans of Bengal are not rare is, as far as I am aware, not well founded; and I have the authority of a late eminent Hindu Judge of the Calcutta High Court to say that not only is such adoption unknown among the Brahmans of Bengal, but it is rare even among Sudras. In these provinces, except among Jains who are not ordinarily governed by the Mitakshara law, and who have a special custom of their own, the adoption of a daughter’s son or sister’s son or a mother’s sister’s son among the three higher classes, is, as far as my judicial experience goes, uncommon; and in the course of my experience as a judicial officer in these provinces, extending over a period of twenty-three years, I cannot call to mind a single instance, except the present case, in which such an adoption among the three higher castes was alleged to have taken place or was asserted to be valid. The non-existence of any reported case in these provinces in which an adoption of this description was held to be valid, the existence of a uniform and long course of decisions in which such an adoption has been held to be invalid, and the paucity of cases in which the validity of such an adoption was questioned, in my opinion, raise, as I have said in another part of this judgment, the inference of a usage in conformity with the rulings. As it has not been asserted in this case that a contrary usage exists among the particular class or in the particular locality to which the parties to this suit belong, we are, in my judgment, bound to hold, in accordance with the long and uniform course of rulings in all parts of India, that the appellant’s adoption was invalid. Having regard to those rulings, to the almost total absence of a conflict of authorities based on reported cases, and to the strong expression of the opinion of their Lordships of the Privy Council on the point in the case of Sundar v. Parbati I.L.R. 12 All. 51 the question can no longer be regarded as res integra.

18. Assuming that the question is still an open one, the next point to be considered is whether the case-law on the subject, to which I have referred above, is in accordance with the rules of Hindu law. That they are in accordance with the authority of modern European text-writers on Hindu law is undoubted, and is indeed conceded. The rule relating to the capacity of the person to be adopted is thus stated in Mayne’s Hindu Law and Usage, Section. 123 (5th edition pp. 141 and 142) : “The restrictions upon the selection of a person for adoption appear…to rest upon the theory, that as the object of adoption was the performance of religious rites to deceased ancestors, the fiction of sonship must be as close as possible. Hence, in the first place, the nearest male sapinda should be selected, if suitable in other respects, and if possible a brother’s son, as he was already in contemplation of law a son to his uncle. If no such near sapinda was available, then one who was more remote; or in default of any such, then one who was of a family which followed the same spiritual guide, or, in the case of Sudras, any member of the case…. In the second place, no one can adopted whose mother the adopted (sic. adopter) could not have legally married.” “The rule so laid down,” says the learned author, as is indeed the fact, “was stated by Mr. Sutherland, both the Macnaghtens and both the Stranges, and, as limited to the three regenerate classes, it has been affirmed by a singularly strong series of authorities in all parts of India as forbidding the adoption of the son of a daughter, or of a sister or of an aunt.”

19. The case-law on the subject is thus supported by the unanimous opinion of celebrated European writers on Hindu law, who have hitherto been held to be high authorities on the subject. The only dissentient opinion is that of Dr. Jolly (Tagore Law Lectures for 1883), who for reasons similar to those expressed by Mr. Mandlik in his able notes to the translation of the Vyavahar Mayukiia, thinks that “there is very little, if anything, in the Sanskrit treatises to warrant the formation of such a rule “(p. 163). The authority of European writers, it is contended, is founded on the following passage in Sutherland’s Synopsis (Stokes’ Hindu Law Books, p. 664): “The first and fundamental principle is that the person proposed to be adopted be one who by a legal marriage with his mother might have been the legitimate son of the adopter. By the operation of this rule, a sister’s son and offspring of other females, whom the adopter could not have espoused, and one of a different class, are excluded from adoption.” And it is urged that the rule so laid down is different from that propounded in the Dattaka Mimansa (Section V, 16 et seq.) and Dattaka Chandrika, (Section II, 8) on which it professes to be founded, that consequently the other European text-writers have been misled into adopting a rule for which there is no foundation in Hindu law, and that the Courts in accepting that rule have been misled by those text-writers. It must be borne in mind that Mr. Sutherland’s Synopsis contains what must be regarded as the inferences drawn by him from the two works referred to above. Those two works were literally translated by him from the original Sanskrit into the English language. It is not contended that the translations themselves are erroneous except in regard to minor verbal matters. On the contrary all the recent critics of the rule laid down by Mr. Sutherland have conceded” that his translation of the original text bearing upon the present question is correct enough. There is therefore no valid reason for the contention that all other European writers and the learned Judges, both European and Indian, who have pronounced an opinion on the question have been guided simply by the inferences drawn in his Synopsis by Mr. Sutherland from the text of the Dattaka Mimansa and the Dattaka Chandrika. According to the texts of the Dattaka Mimansa and the Dattaka Chandrika the teat of eligibility for adoption is “the capability to have been begotten by the adopter, through appointment, and so forth.” (Dattaka Chandrika, Section V, 8, and Dattaka Mimansa, Section V, 16). The authors of the Dattaka Chandrika and the Dattaka Mimansa referred to the ancient practice of Niyoga, i.e., the practice of begetting a child by appointment, which has now become obsolete, and is prohibted in the Kaliyug; and Mr. Sutherland apparently confused it with marriage. But, as shown in the judgment of the Full Bench of the Madras High Court in Minakshi v. Ramanada I.L.R. 11 Mad. 49, marriage was not possible where Niyoga was impossible, and therefore, in laying down the rule that it was illegal to adopt the offspring of a female whom the adopter could not have espoused, Mr. Sutherland did not propound a theory which could not be legitimately inferred from the Dattaka Chandrika and the Dattaka Mimansa. And so far as the question now before us is concerned, the European text-writers who have followed Mr. Sutherland have not fallen into gross error. I may add that besides the learned European scholars and Sanskritists who have accepted the rule forbidding the adoption of the son of a daughter or of a sister or of an aunt, enunciated by Mr. Mayne in 123 of the Fifth Edition of his work, namely, Mr. Sutherland, both the Macnaghtens, and both the Stranges, and Messrs. West and Buhler (see Hindu Law, p. 1028), two Hindu lawyers, namely, Babu Shyama Charan Sarkar, the author of the Vyavastha Darpan and the Vyavastha Chandrika, and Mr. Siromani, the author of Commentaries on Hindu Law, have adopted the same rule (see Vyavastha Chandrika, Vol. II, pp. 73 and 75, and Siromani’s Commentaries, Second Edition, p. 165 et seq). The only writers who have expressed a contrary view are Mr. Mandlik, Mr. Golap Chandra Sarkar and Dr. Jolly. They do not deny that the Dattaka Chandrika, the Dattaka Mimansa, and the works of several other commentators are authorities in support of the view which is opposed to their own. They only question the value of those authorities. How far their objections to the value of those authorities ought to prevail I shall consider later on, but I may observe that notwithstanding the criticisms of Mr. Mandlik, a Full Bench of the Madras High Court in Minakshi v. Ramanada I.L.R. 11 Mad., 49, and a Full Bench of the Bombay High Court in Waman Raghupati Bova v. Krishnaji Kashirai Bova I.L.R. 14 Bom. 249, have upheld the authority of the Dattaka Chandrika and the Dattaka Mimansa on questions of adoption. We have thus not only a uniform course of rulings of all the Courts in India ainoe 1815 in support of the position that the adoption of the mother’s sister’s son is void, but we have also the almost unanimous opinion of modern writers on Hindu Law, European and native, that such adoption is invalid.

20. Let us now consider whether the case-law and the authority of modern writers on the subject are wholly opposed to and inconsistent with what is regarded as the sacred laws of the Hindus. No doubt the “Hindu law must,” as observed by the learned Chief Justice in Beni Prasad v. Hardai Bibi I.L.R. 14 All. 67, “be ascertained from a consideration of the text of that law and of the authoritative commentaries, and not by attempting to construe the mistaken and misleading translations or unauthorized interpolations of English translators” (pages 79 and 80).

21. The sources of Hindu law, I need hardly point out, are the Srutis or Vedas, the Smritis or the institutes of the sages, and the commentaries and digests. The commentaries and digests were written or compiled by later writers with the object of reconciling discrepancies in the sayings of the sages, and laying down complete and consistent codes of rules on different branches of law. The commentaries and digests, therefore, form an important part of the authorities on Hindu law, and have become, as the learned Judges of the Madras High Court have held, “new law sources.” According to Mr. Morley (Introduction to the Digest p. 201) “for final authority in deciding questions of law, recourse must be had to Commentaries and Digests,” and it is these commentaries which, as pointed out by their Lordships of the Privy Council in the Ramnad case 12 Moo. I.A. 397, at p. 435, have given rise to the different schools of Hindu law. The Mitakshara, which in these provinces regulates most questions of Hindu law, is itself only a commentary, and so are the Dayabhaga and the Vyavahara Mayukha, which are of supreme authority in the Provinces of Bengal and Bombay respectively.

22. Among the commentaries on the law of adoption are the Dattaka Mimansa and the Dattaka Chandrika, and both of them, and especially the former, have hitherto been regarded as the highest authorities in the Banares School on questions of adoption. According to Sir William Macnaghten, “in questions relative to the law of adoption, the Dattaka Mimansa and the Dattaka Chandrika are equally respected all over India,” and “the former is held to be the infallible guide in the Provinces of Mithila and Benares.” (Preliminary Remarks, p. xxiii). This opinion was accepted by Morley in the Introduction to his Digest (p 217), and the same appears to have been the view of Mr. Colebrooke (see Strange’s Hindu Law, Vol. II, p. 133, edition of 1830), and of Sir Thomas Strange himself. In the letter written by him to Lieutenant-Colonel Blackburne, dated 9th May 1812, Vol. II, p. 184, he said that the Dattaka Mimansa by Nanda Pandita was “the highest authority upon the subject of adoption.” The same was the opinion of the eminent Hindu lawyer Babu Shyama Charan Sarkar (Preface to the Vyavastha Chandrika, p. 23, and Preface to the Vyavastha Darpan, p. 13). Mr. Sarbadhikaii, in the Tagore Law Lectures for 1880, declared the Dattaka Chandrika and the Dattaka Mimansa to be “the reigning authorities ” on adoption in all schools (p. 519); and Mr. Siromani in his Commentaries on Hindu Law has recognised the high authority of those two commentaries on questions of adoption. The late Mr. Justice Dwaeka Nath Mitter one of the most eminent Hindu Judges who ever sat on the Bench, expressed the opinion that the Dattaka, Chandrika and the Dattaka Mimansa “are undoubtedly entitled to be considered, and have been always considered, as the highest authorities on the subject of adoption.” Rajendra Narain Lahoree v. Saroda Sonduree Dabee 15 W.R. 548, and Mr. Justice Romesh Chandra Mitter, in the judgment of the Full Bench in Uma Sunker Moitro v. Kali Komul Mozumdar I.L.R. 6 Cal. 256, at p. 265, declared, with the concurrence of his learned colleagues, that the two treatises had been always accepted throughout India as conclusive on questions relating to adoption. Dr. Gurudas Banerji (at present a Judge of the Calcutta High Court), in his Tagore Law Lectures for 1878, considered the Dattaka Mimansa to he the “highest authority in the Benares School in matters of adoption” (p. 364). Mr. Justice Nanabhai Haridas concurred with Sir Michael Westropp, C.J., in holding the two treatises to be of the highest authority in Bombay next to the Vyavahara Mayukha, Lakshmappa v. Ramava 12 Bom. H.C. Rep. 364 Mr. Justice Muttusami Ayyar in the Full Bench case of Minakshi v. Ramanada I.L.R. 11 Mad. 49, maintained the high authority of those treatises on questions of adoption. In Tulshi Ram v. Behari Lal I.L.R. 12 All. 328, Mr. Justice Mahmood expressed the opinion that the Dattaka Mimansa of Nanda Pandita was “a vary high authority” in the Benares School upon questions of adoption, and that “the authoritativeness of the book, so far as the Benares School was concerned, had been fully recognised” (p. 341); and he did not resile from that opinion in Beni Prasad v. Hardai Bibi I.L.R. 14 All. 67; at p. 108. The authority of the Dattaka Chandrika and the Dattaka Mimansa was recognised by the Lords of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathy 12 Moo. I.A. 397. Their Lordships said at page 437: “Of the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika of Devanda Bhatta, two treatises on the particular subject of adoption, Sir William Macnaghten says that they are respected all over India, but that when they differ the doctrine of the latter is adhered to in Bengal, and by the southern jurists, while the former is held to be the infallible guide in the Provinces of Mithila and Benares.” In Waman Raghupati Bova v. Krishnaji Kashiraj Bova I.L.R. 14 Bom. 249, a Full Bench of the Bombay High Court said that the Dattaka Mimansa and Dattaka Chandrika had been regarded in that Court as the leading authorities on the subject of adoption, and that in spite of the criticisms of Mr. Mandlik to the contrary, that Court ” did not see reason to depart from the standard it had uniformly applied in appreciating the value of the different text-writers.” A Full Bench of the Madras High Court also maintained similar views in the case of Minakshi v. Ramanada I.L.R. 11 Mad. 49, to which I have referred above.

23. We have thus a singular consensus of opinion as to the high authority of the Dattaka Mimapsa and the Dattaka Chandrika on questions of adoption. It is said that those two treatises have become widely known to the Judges and to European text-writers by reason of the fact that they were translated by Mr. Sutherland, and he set a high value on them, and that among Hindu lawyers and the Hindu public they are not known and their authority is not followed. Whatever the state of things may be in the Presidency of Bombay, there does not appear to me to be any warrant for the above statement so far as these Provinces are concerned. Nanda Pandita, the author of the Dattaka Mimansa, was, according to the account furnished to Mr. Mandlik by the well-known Pandit Balshastri of Benares, a resident of that city. His ancestors removed from Bedar in Southern India to Benares. He wrote his commentary on Vishnu entitled Kesava Vaijayanti, in 1633 A.C. (Siromani’s Hindu Law, p. 37). The Dattaka Mimansa is supposed to be a later work, but as reference is made to it in the Vaijayanti (see chap 24) it seems to have been written before, or at least contemporaneously with, the Vaijayanti. It must, therefore, have been written in the early part of the seventeenth century, that is, between two hundred and fifty and three hundred years ago. The Dattaka Chandrika was written a few years earlier, and it is wholly immaterial whether the author of it was a person of the name of Kuvera, a native of Bengal, as Mr. Mandlik says, or Dovanand Bhatta, as stated by Mr. Sutherland. There can be no doubt as to the authenticity of that work, and I am not prepared to place any value on the story which Mr. Golap Chandra Sarkar has stated to the contrary in his Tagore Law Lectures. A printed edition of both the Dattaka Chandrika and the Dattaka Mimansa appeared in Calcutta in 1817, and a translation of them into English by Mr. Sutherland was published in 1821 (Morley’s Digest, Introduction, p. 216). From Mr. Sutherland’s Preface the translation appears to have been commenced about 1814 and completed in 1819 (Stokes’ Hindu Law Books, page 529), and the translation apparently did not become known to the public until some time in 1821. There is, however, clear and unmistakable evidence to show that the two works were well known to Hindu pandits and lawyers.

24. In the second volume of Macnaghten’s Principles and Precedents of Hindu Law, where he has collected the opinions of Hindu law officers upon questions propounded to them, I find that as authorities for the answers given to the questions put to the pandits in Case XVIII (pp. 197, 198, 199) they, on 20th April 1810, referred both to the Dattaka Mimansa and the Dattaka Chandrika. In the case of Raja Sumsheer Mul v. Rani Dilraj Koonwur Case XIV, p. 189, which was a case from the Gorakhpur district and was decided on the 3rd January 1815, the Dattaka Mimansa was relied upon, and it was distinctly stated in the opinion of the Hindu law officers that the adoption referred to in that case was allowable according to the Dattaka Mimansa, which is current in Gorakhpur.” Similarly the opinion expressed in Case V (p. 180) on 19th March 1815, was stated to be “conformable to the doctrines of Manu, the Vyavaharatatwa, the Dattaka Mimansa and other law books.” In 1823, 1824, and 1826 both the Dattaka Mimansa and the Dattaka Chandrika were referred to by the pandits in the cases mentioned in pages 175-179 and 183. Turning, again, to Strange’s Hindu Law, I find under “Responsa Prudentum,’ a case decided by the Provincial Court of Masulipatam on 27th July 1809 (Vol. II, p. 103) in which the pandit in his answer referred to the Dattaka Mimansa and the authority of Sakala quoted in it. Mr. Ellis in a paper communicated on 16th August 1812, referred “to a correct copy of Nanda Pandita’s Dattaka Mimansa procured at Madras.” (Strange’s Hindu Law, Vol. II, p. 169). In the case of Raja Haimunchull Singh v. Roomer Gunseeam Singh 2 Knapp 203, which was a, case from the Etawah district, instituted in 1810 and decided in 1813 by the Provincial Court, and in 1817 by the Sadar Dewani Adalat of Bengal, within whose jurisdiction the district of Etawah then was, the pandits referred to the Dattaka Mimansa “as in force in the zila Etawah.” The pandits of the Provincial Court of Bareilly no doubt referred to the Mitakshara and the Vyavahar Mayukha, a work of authority in Bombay; hut it must be borne in mind that the Mayukha also deals with the question of adoption, and being, like the Mitakshara, a commentary on Jajnavalkya, it could with propriety be referred to at the same time with the Mitakshara. It is thus clear that even before Sutherland had commenced to translate the Dattaka Chandrika and the Dattaka Mimansa, those works were well known among Hindu pandits as authorities on questions of adoption not only in Northern India, but also in the Presidency of Madras. It is true that no reference is made to them in Colehrooke’s Digest of Hindu Law compiled in 1796, but it must be remembered that in the Digest very little prominence was given to the question of adoption. It may be that Jagannath Tarkapanchanan, the author of the Vivadabhangarnava, which is the original of Colebrooke’s Digest, was not aware of the Dattaka Chandrika and the Dattaka Mimansa or did not consider them to he works of authority, but the Privy Council in Rungama v. Atchama 4 Moo. I.A. 1, followed those treatises in preference to Jagannath’s work. Besides, whatever may be the authority of Jagannath Tarkapanchanan in the Bengal school he is not regarded as an authority in the Benares school, and his own translator, Mr. Colebrooke, said of him that “we have not here the same veneration for him, when he speaks in his own name” (Strange’s Hindu Law, Vol. II, p. 176.) Mr. Colebrooke, himself, as I have said above, considered the Dattaka Mimansa to be a work of authority. In a letter which he wrote to Sir John Royds on 14th March 1312, he said with reference to that treatise, that it was “no doubt the best treatise on Hindu adoption” (Strange’s Hindu Law, Vol. II, p. 133). I need hardly add that Mr. Sutherland considered the Dattaka Mimansa and the Dattaka Chandrika to be works of great authority. In the Preface to his translation he said “the Dattaka Mimansa is the most celebrated work extant on the Hindu law of adoption. Its author, Nanda Pandita, has attained considerable literary pre-eminence.” “The Dattaka Chandrika…is a work of authority, and supposed to have been the groundwork of Nanda Pandita’s disquisition” (Stokes’ Hindu Law Books, p. 527). The reason why, among all others, he selected the two works for translation was that, ” justly or unjustly,” they were held in estimation, and that such was the fact I have shown from the references made to them by pandits so far back as 1809 and 1810.

25. It is true that the Dattaka; Chandrika and the Dattaka Mimansa are works of a comparatively recent date, though they are now more than two hundred and fifty years old. But the law of adoption is itself of recent development. In early times when there were twelve modes of affiliating sons, the adopted son held a very unimportant and inferior position. But as with the growth of time the Hindu mind formed different conceptions in regard to the relations of the sexes, and all other forms of affiliation fell into desuetude, adoption came into great prominence, and in modern times the only sons who received recognition were the son born and the adopted son. It is, therefore, natural to expect that it is modern writers only who would deal elaborately and comprehensively with the law of adoption. Two of the earliest treatises which treated solely of adoption appear to have been the Dattaka Chandrika and the Dattaka Mimansa, and as they have been in existence for nearly three centuries, and have, as I have shown above, been recognised as the highest authorities on questions of adoption, not only by European text-writers, but by almost all the Hindu Judges who have sat on the benches of the different High Courts; by other eminent Judges, European and Indian; by two Full Benches of the Madras and the Bombay High Courts; by their Lordships of the Privy Council; by almost all Hindu text-writers; by Hindu pandits who have since the commencement of the present century expressed opinions on questions of Hindu law, it seems to me to be too late now to ignore the authority of those treatises and in the face of such a strong array of authority one should hesitate to accept the contention of the learned vakil for the appellant that no value should be placed on them. It is noteworthy that so far as the present question is concerned (1) the Sanskara Kaustubha; (2) the Dharma Sindhu; (3) the Dattaka Nirnaya (which are authorities in the Western Presidency, see Mandlik, p 489); (4) the Dattaka Kaumudi (see Jolly, p. 308, and Golap Chandra Sarkar, p. 327); (5) the Dattaka Darpana; (6) the Dattaka Didhiti; (7) the Dattaka Manjari (see Sarkar, p. 327); and (8) the Dattaka Siromani (see Appendix to Dr. Jolly’s Tagore Law Lectures), are of the same opinion as the Dattaka Mimansa and the Dattaka Chandrika.

26. It has been observed with great truth by Messrs. West and Buhler p. (865) that “in the present day it does not seem likely that the fountain heads of the law will be much drawn on for new principles in the Law of Adoption. They are indeed too meagre to afford such principles save through an elaborate process of constructive inference. To this they have been subjected by the Hindu writers for many centuries, and the rules reduced by these writers have in their turn been tried and sifted by express or tacit reference to the Usages and the peculiarities of Hindu society, until those best suited to its needs have been ascertained and appropriated. The Smritis come nearer than the Veda to modern practice, but the most important authorities are the writers’ such as have been referred to, whose expositions have partly embodied and partly fashioned the customary law” A similar view was held by a Full Bench of the High Court of Madras in Minakshi v. Ramanada I.L.R. 11 Mad. 49, to which I have often referred. The learned Judges said: “The suggestion made by the appellant’s pleader that we should now see whether the commentator’s interpretation by analogy was justifiable cannot be adopted. It should be remembered that in several instances the commentaries themselves have become new law-sources, owing to the adoption of the opinion expressed therein by the people as part of the customary law. It is not possible to say beforehand, except by reference to actual usage, whether the opinion of the commentator on any particular point is part of the Bindu law as received by the people; and the only course open to Courts of Justice is, as pointed out by Muttusami Ayyar, J., in the Sivaganga case,–Muttu Vaduganadha Tevar v. Dora Singha Tevar I.L.R. 3 Mad. 290,–to take the commentaries which are accepted generally as authoritative as containing the law applicable to the parties, unless they show by clear evidence that in some special matter the usage of the people is not in accord with them.”

27. These observations, in my opinion, carry great weight and they have my full concurrence. The commentaries, in the present days, are an important factor in determining what in respect of each particular question are the sources of Hindu law, and unless it can be shown that they are in direct violation of established rules of law as propounded by the Sastras, or of ancient usages clearly proved to exist in a particular locality or among a particular class, their authority should not be ignored simply on the ground that some of the arguments advanced by them may be open to criticism. In this view, having regard to the fact that the Dattaka Mimansa and the Dattaka Chandrika have for three quarters of a century received judicial recognition in all parts of India as works of paramount authority on questions of adoption, any one now attempting to detract from their value must do so on very cogent grounds. Such grounds have not, in my opinion, been established in this case.

28. It is not disputed that according to Nanda Pandita, the author of the Dattaka Mimansa, and to the author of the Dattaka Chandrika, the adoption of a daughter’s son, a sister’s son or a mother’s sister’s son is absolutely interdicted. Let us see whether this interdiction is supported by the texts of any of the sages, or it is opposed to any such texts.

29. Both the works rely upon the following text of Sakala also called Sakalya:

Let one of a regenerate tribe destitute of male issue, on that account, adopt as a son the offspring of a sapinda relation particularly : or also, next to him, one born in the same general family : if such exist not, let him adopt one born in another family : except a daughter’s son, a sister’s son, and the son of the mother’s sister.” (Datt. Mim., Section, II, 107); and (Datt. Chand., Section I, 11.)

30. The above is Mr. Sutherland’s translation and Mr. Golap Chandra Sarkar’s translation is also to the same effect. There can be no doubt that the above text of Sakala contains a positive interdiction against the adoption of the son of a daughter, a sister or a mother’s sister. It confers a right with a limitation, the limitation being the exclusion of the daughter’s son, the sister’s son, and the mother’s sister’s son. As the right exists with the prohibition, whoever exercises the right must abide by the prohibition. On this ground Mr. Golap Chandra Sarkar’s argument that the rule being enabling and optional the prohibition is optional also, is, in my judgment, fallacious. No reason having been given for the prohibition, it must, according to Jaimini’s rule of construction, be held to be a positive and absolute prohibition, and not a mere direction. Sakala’s authority as a Sutra writer is undoubted. The principal Sakha of the Big-Veda is called after his name (see Mandlik’s Introduction to the Mayuklia, p. 8, and Siromani’s Hindu Law, p. 20). He is mentioned in the Smriti Ratnakara as one of the writers of the nine purva’ (prior) Sutras. (Mandlik’s Introduction, p. 13 and Siromani, p. 24.) In the Mahabharat he is named as a lawgiver (Mandlik’s Introduction, p. 15.) In the Preface to the Vyavastha Chandrika (p. 4) he is enumerated among “the sages who wrote on the Dharma Shastra;” and in West and Buhler (p. 28), he is mentioned as a Smriti writer, part of whose writings was in existence. He is also mentioned us a nshi in Golebrooke’s Essays on the Religion and Philosophy of the Hindus, contributed to the Asiatic Researches in 1798 and 1805. No reason has been shown to us to justify our assuming that the text cited in the Dattaka Chandrika and the Dattaka Mimansa as that of Sakalais not genuine, or that it is incomplete. It is too much to assume that the text was fabricated by the authors of those two treatises. Portions of Sakala’s writings are, according to West and Buhler, now extant, and had the text attributed to him not been genuine, there would have been no difficulty in establishing its falsity. It would not certainly have been allowed to go unchallenged for upwards of 250 years, and the several native Hindu lawyers who have written on adoption would not have accepted the rule propounded by him. There is thus the undoubted authority of Sakala in support of the rule of exclusion laid down in the Dattaka Chandrika and the Dattaka Mimansa.

31. The next authority for Nanda Pandita’s conclusion is a text of Saunaka. He, too, was a rishi of unquestioned authority. He was referred to as an authority even by Manu. In Chapter III, v. 16, Manu said: “According to Atri and to (Gotama) the son of Utathya, he who thus marries a woman of the servile class, if he be a priest, is degraded instantly; according to Saunaka on the birth of a son, if he be a warrior.” (See Sir William Jones’s translation of the Manava Dharma Shastra, edition of 1863, p. 49: also Sacred Books of the East, Vol. XXV, p 78). The Saunaka Smriti is in existence, and has been partially translated by Dr, Buhler in the Journal of the Asiatic Society, Vol. 35, Part I, p. 149, et seq. Portions of his text bearing on the present question are cited in the Dattaka Mimansa (Section II, 74, and Section V, 16 and 18). A translation of the whole text is given in Mr. Golap Chandra Sarkar’s Hindu Law of Adoption, p. 308. That portion of it which has been reproduced in the Vyavahara Mayukha has been translated at pp. 52 and 53 of Mr. Mandlik’s book, and Mr. Mandlik has in a subsequent part of his work given a translation of his reading of a portion of the text.

32. The rule which Nanda Pandita has deduced from the text of Saunaka is that no one is eligible for adoption between whom and the adopter there is incongruity of relationship (Virudha sombandfia), and as the incongruity which exists between a person and his daughter’s son or sister’s son or his mother’s sister’s son is such as would prevent the latter being the son of the former, the latter cannot be adopted by the former. “The test for determining whether an affiliation involves incongruous relationship is,” according to Nanda Pandita,” the capability to have sprung from (the adopter) himself through an appointment (to raise issue on another’s wife) and so forth” (Section V, 16).

33. It must be borne in mind that the object of adoption being the affiliation of a son for spiritual benefit and the perpetuation of lineage, the ancient writers on Hindu law were anxious that the adopted son should, as far as may be, resemble a son born, and be able to confer spiritual benefit with efficacy. “He to be,” as Sir Thomas Strange says (Vol. I, p. 83), “at the least such as that he might have been his son.” And as Mr. Mayne says ( 94) “he was to look as much like a real son as possible, and certainly not to be one who could never have been a son.” It was for this reason, it seems, that Manu ordained in Chapter IX, v. 168, that the boy to be adopted was to be putra sadrisa, that is, was to resemble or be like a son. For the same reason Saunaka declared that he should be putra chchhaya baham, i.e., should “bear the reflection of a son.” Neither of them said it; what respect the resemblance was to be With regard to the dictum of Manu, some of his commentators were of opinion that the resemblance was to consist in the adopted son being of the same class as the adopter. With reference to Saunaka’s text, Nanda Pandita declared that the resemblance was to consist in ” the capability to have sprung from (the adopter) himself, through an appointment (to raise issue on another’s wife), and so forth; as (in the case) of the son, of a brother, a near or distant kinsman, and so forth” (Section. V, 16); and he deduced the conclusion that “the brother, paternal and maternal uncles, the daughter’s son, and that of the sister are excluded: for they bear not resemblance to a son” ( 17).

34. It was contended that Saunaka did not intend the words “bearing the reflection of a son” to be a limitation to the adoptee’s capacity to be adopted, and that the resemblance was not intended to be antecedent to the ceremony of adoption. In support of this last contention, reference has been made to the translation of the text in question by Dr. Buhler in the Asiatic Researches, p. 160, which is as follows: “He then should adorn the child which (now) resembles a son of the receiver’s body, with the dresses and other (ornaments mentioned before).” And it is said that what is meant is that the boy has by reason of the ceremonies of giving and taking become a resemblance of the son. This contention is not, in my opinion, valid. The passage is thus translated by Mr. Golap Chandra Sarkar (p. 308), and Mr. Mandlik’s translation is nearly in the same terms:

The giver being capable of the gift should give to him with the recitation of the five riks commencing with ‘ye yajnena.’ (The adopter) having taken (the boy) by both hands…having adorned the boy bearing the rejection of a, son with clothes and the like; having brought’ him accompanied with dancing…should complete the remaining part of the ceremony.” The whole context of this passage shows that prior to the performance of all the ceremonies which would complete the adoption, the giver should be a person “capable of the gift,” and the boy should be one “bearing the reflection of a son.” It cannot, in my opinion, be reasonably contended that the boy “now bears the reflection of a son,” because by reason of the adoption he does not become the reflection of a son but for all practical purposes he becomes the actual son of the adopter with ail the rights and obligations of a real son, and I am of opinion that the meaning put on the text by Nanda Pandita is its true meaning. It has been fully shown in the judgment of the Full Bench of the Madras High Court in Minakshi v. Ramavada I.L.R. 11 Mad., 49, that the rule of exclusion deduced by Nanda Pandita founded on propinquity and incongruous relationship is not an inconsistent rule, and all I need say is that I concur in that judgment and in the reasons given in it for the conclusion at which the learned Judges arrived. The object of marriage among Hindus is to procreate a son able to confer spiritual benefit, and this cannot be done by the issue of an incestuous marriage. Hence the rules for marriage within prohibited degrees. The same being the object of the procreation of a son through the now obsolete practice of Niyoga rules of prohibited relationship in Niyoga were also provided. As adoption is resorted to for a similar object, similar rules of exclusion founded on the analogy of Niyoga are the necessary consequence of the requirement of Saunaka that the son to be adopted should “bear the reflection of a son” that is of a son born in wedlock: otherwise the efficacy of adoption would fail, as in that case the son to be adopted would bear the resemblance of the issue of an incestuous connection. Hence the rule propounded by Nanda Pandita in Section V, 20, that ” such person is to be adopted as with the mother of whom the adopter might have carnal knowledge,” as translated by Sutherland, or ‘for the mother of whom the adopter may feel sexual love,” as translated by Golap Chandra Sarkar, is a legitimate inference from and is warranted by the text of Saunaka that the adopted son should bear the reflection of a son–a text which thus imposes a prohibition on the adoption of persons of the description mentioned in 20 of Section V of the Dattaka Mimansa. As the son of the mother’s sister comes within that description of persons the adoption of such a son is interdicted by Saunaka.

35. Another text of Saunaka on which Nanda Pandita relies is thus stated in 74, Section II of Sutherland’s translation: Of Kshatriyas, in their own class positively: and [on default of a sapinda kinsman] even in the general family, following the same primitive spiritual guide (Guru): of Vaisyas, from amongst those of the Vaisya class (Vaisya jateshu): of Sudras from amongst those of the Sudra class. Of all, and the tribes likewise, [in their own.] classes only; and not otherwise. But a daughter’s son and a sister’s son are affiliated by Sudras. For the three superior tribes, a sister’s son is nowhere [mentioned as] a son.” The last two sentences are thus rendered by Mr. Mandlik (p. 491): “A daughter’s son or a sister’s son is adopted as a son by Sudras alone. In the case of the three classes beginning with the Brahmana, a sister’s son [and a daughter’s son] are nowhere mentioned as sons.”

36. The last sentence is not quoted in the extract from Saunaka given in the Vyavahara Mayukha (see Mandlik, pp. 52 and 53), and it apparently did not exist in the copy of the Saunaka Smriti which was translated by Dr. Buhler. If that sentence does not appear in the text, the argument that it was a reason for the rule propounded in the text, viz., that a daughter’s son and a sister’s son can be affiliated by Sudras only, and that by applying Jaimini’s rule of interpretation the said rule could be regarded only as directory, and not as mandatory, falls to the ground. If the sentence “for the three superior tribes, a sister’s son is nowhere (mentioned as) a son,” does as a matter of fact, appear in the text, and the weight of authority is that it does, Saunaka does not use it as a reason for what precedes (although Nanda Pandita thinks that he does), and therefore the text of Saunaka, as a whole, cannot be regarded as a direction merely. The text appears in several manuscript copies of the Saunaka Smriti now in existence. As I read the text, it lays down the rule as to the classes of persons from among whom the boy to be adopted should be selected; and it provides an exception to that rule in the case of a daughter’s son or a sister’s son who, it says, is not eligible for adoption except among Sudras, and is forbidden to the three superior classes. This text is, in my opinion, a positive interdiction against the adoption of a daughter’s son or a sister’s son among the three higher classes and cannot be treated as directory merely.

37. Referring to this text, Nanda Pandita says in Section II, 91: “The part of the text, (but a daughter’s son, &c.,) propounds an exception, as to those of the three first tribes, with respect to the daughter’s son and sister’s son, inferred from the mention of propinquity in the general.” In 92 he says “since (the particle ‘bat’ having an exclusive import) a restriction, by Sudras only, is conveyed; those of the three first tribes are excluded.” And the conclusion at which he arrives is,” that the expression ‘sister’s son’ (in the last sentence of Saunaka’s text, 74), is illustrative of the daughter’s son, and mother’s sister’s son, and this is proper: for, prohibited connection is common to all three” (108).

38. The result of Nanda Pandita’s argument is that he deduces the rule of exclusion based on propinquity. For that rule he has, as I have said above, the authority of Sakala, who imposes a positive interdiction. He has also the authority of Saunaka, who, in requiring that the boy to be adopted should bear the reflection of a son, also lays down a prohibition. The remainder of his text, quoted above, also imposes a prohibition, as I have said above. But whether that portion of his text only propounds an existing rule or lays down a rule which is only directory or imposes an absolute interdiction, Nanda Pandita has relied upon it as only illustrative of the rule which he has deduced–an exception to that rule existing in the case of Sudras only. For this conclusion he had sufficient authority in the texts of Saunaka. The exception in the case of Sudras does not make his rule inconsistent, for, as was observed by Westropp, C.J., in Gopal Narhar Safray v. Hanmant Ganesh Safray I.L.R. 3 Bom. 273, on the strength of a note supplied to him by that eminent Judge and Sanskritist, Sir Raymond West, “the Hindu law regarded the Sudras as slaves, and their marriages as little better than concubinage.”

39. It has been contended that Nanda Pandita’s conclusion, and the rules propounded by him, are not supported by any text of Manu or Vasishtha or Yajnavalkya. This is true: but it must also be remembered that those sages did not deal completely and exhaustively with the law of adoption as existing among Hindus, and did not lay down full and clear rules as to the qualifications of the persons to be adopted. The absence of any texts in their writings is not therefore surprising, and cannot affect the present question one way or the other.

40. It is next urged that there is a text of Yama which is inconsistent with the rule laid down in the Dittaka Mimansa and the Dattaka Chandrika, and which sanctions the adoption of a daughter’s son. This text has been quoted by Mr. Mandlik at page 483, and is as follows: “In the case of a daughter’s son and a brother’s son, the rule in regard to a sacrifice and the like does not prevail. (The act of adoption) is complete by a verbal gift alone, so says the holy Yama.” The text evidently refers to ceremonies connected with adoption and is alleged to have been quoted in the Sarasvativilasa, which is a work accepted in the Bombay Presidency, hut is of no authority in the Benares School. Mr. Mandlik does not vouch that the text appears in the Sarasvativilasa, but he says that the verse is quoted in the Dattika Darpana with the preamble that “it is said in the Sarasvativilasa” that the text referred to was a text of Yama. We have thus for the authenticity of the text the fact that the Dattaka Darpana says that it is said in the Sarasvativilasa that Yama says that in the case of the adoption of a daughter’s son the rule with regard to a sacrifice does not prevail, and thus sanctions by implication the adoption of a daughter’s son. This certainly is very meagre evidence of the authenticity of the text attributed to Yama. It is not alleged that the text appears in the Yama Smriti and Yamadharma sastra, which are now extant and to which reference is made by Mr. Mandlik at pages 295, 296 and 297. Mr. Golap Chandra Sarkar admits at page 334 that he has not seen the text cited in any commentary of note, and that he only heard Pandit Bharat Chandra Siromani repeat it to his pupils. It is noteworthy that Pandit Bharat Chandra Siromani does not refer to the text in his own work on adoption called the Dattaka Siromani. This circumstance raises the inference that Pandit Bharat Chandra Siromani himself did not consider the text to be authentic. It is not in the Yama Satihita recently published in Calcutta. Even if the authenticity of the ttxt of Yama be conceded we have a text which is in conflict with the text of Sakala and Saunaka. Now, where there is a conflict of texts “there are,” according to Mr. Mandlik (p. 492), “two ways in which our jurists get out of such a difficulty, one is to follow either text; the other is to hold that the two texts refer to different parts of the country. The Dattaka Nirnaya quotes an authority for the latter mode of interpretation: “When Srutis or Smritis disagree (on any point), a difference of place (where they are adopted) is assumed (for the purpose of reconciling them).’ “And Mr. Mandlik thinks” that the existence of the prohibition in reference to some parts of India, and the non-existence of it in reference to others is…the real solution of the whole question.” The text attributed to Yama may, according to Mr. Mandlik’s reasoning, be an authority for the adoption of a daughter’s son in the Presidency of Bombay, where the Sarasvativilasa is accepted as an authority, but cannot be regarded as of any value in these provinces, and cannot override the texts of Sakala and Saunaka on which commentaries, recognised as high authorities on this side of India for nearly three centuries, are founded.

41. In the face of the consensus of authority to which I have referred above, all leading to only one conclusion, I am not prepared to accept the contentions of the learned vakil for the appellant which are founded on the criticisms of Messrs. Mandlik and Sarkar and of Dr. Jolly, most of which are attempts to prove that Nanda Pandita’s conclusions are erroneous.

42. As for Mr. Mandlik’s objections they are based mainly on the text of Yama referred to above, and on the existence of a usage in the Bombay Presidency in conflict with the rule laid down in the Dattaka Mimansa. I may repeat what I have already said that, notwithstanding Mr. Mandlik’s criticisms, the High Courts of Bombay and Madras have in Pull Bench refused to accept his views and to ignore the authority of the Dattaka Mimansa. Besides, as his arguments have chiefly for their basis the custom of adoption prevailing in the Western Presidency, they have no weight in these provinces. Mr. Golap Chandra Sarkar’s principal argument is that as the affirmatory rule as to the choice of the persons to be adopted is directory, the exception to that rule cannot be imperative. This, as I have said above, is a fallacy, and the learned vakil for the appellant has frankly admitted it to be so. Dr. Jolly’s objections have reference to the conclusions of Nanda Pandita, the obsoleteness of the doctrine of Niyoga, and the incorrectness of Sutherland’s marriage theory. These I have already disposed of.

43. The only other question which has been pressed on our consideration is whether the prohibition against the adoption of a mother’s sister’s son is directory only or absolute. This point I have already dealt with. In my opinion according to the texts of both Sakala and Saunaka, such adoption is absolutely interdicted and void and cannot be validated by the rule of factum valet. The transaction being a nullity, there could be “in such case no factum ” (per Westropp, C.J., in Lakshmappa v. Ramana 12 Bom. H.C. Rep. 364, at p. 397).

44. We have thus on the question of the validity of an adoption like that alleged by the appellant the texts of two Smriti writers interdicting such an adoption and no positive text authorizing it. We have against the validity of such an adoption the authority of the Dattaka Mimansa and the Dattaka Chandrika, which have been held to be paramount by almost all modern text writers, European and native by almost all the Hindu Judges of the different High Courts; by most European and other Judges, some of whom were eminent Sanskrit scholars; by the Full Bench Rulings of two High Courts; by Hindu Pandits and Sastris ever since 1809; and by their Lordships of the Privy Council. We have the further fact that such adoption has been condemned by no less than eight other modern Hindu writers on the law of adoption, to whom I have referred above, who have formed independent opinions of their own and have not blindly followed the Dattaka Mimansa and the Dattaka Chandrika. We have also the fact that since 1815 all the Courts in India have held such adoption to be void, and except a single case in 1810, which Sir Francis Macnaghten says was subsequently overruled, there is not a single reported case in any part of India in which a contrary view was held. We have then against the validity of the appellant’s adoption, not only a uniform course of judicial decisions, extending over more than three quarters of a century, but also the inference of the existence of a usage in conformity with what has for such a long period been understood to be, and accepted as the law of the Benares School on the subject, and not the faintest suggestion of the existence of a contrary usage. We have thus against the appellant’s contention everything which in these days must be regarded as the sources of Hindu Law, viz., (1) Authorities of Sages and Commentators; (2) Judicial decisions, and (3) Usage. So that, in the words of that eminent Judge, Mr. Justice Mahmood, ” we should be doing nothing more nor less than introducing not only a social, but a religious innovation, and disturbing the accepted rules of succession to property by adopted sons if we were to abrogate the uniform course of decisions in this part of the country dating so far back as 1815.” “We should,” to quote the same learned Judge, “be shaking settled titles and undoing the uniform judicial exposition of more than half a century of British rule in India, if we were. to adopt the argument of the learned vakil for the appellant that ever since 1816 (1815 in this case) the Courts of British India have misunderstood the doctrines of the Benares School of Hindu law as to adoption.” Tulshi Ram v. Behari Lal I.L.R. 12 All. at p. 865.

45. For the above reasons I hold that the alleged adoption of the appellant was void, and I would dismiss this appeal with costs.

Aikman, J.

46. I have had the privilege of reading the judgments of the learned Chief Justice and my brother Banerji. It must, I think, be admitted that in his able and exhaustive judgment the Chief Justice has succeeded in demonstrating that the weight of authority against the legality of the adoption which the appellant seeks to set up is not by any means so overwhelming as Mayne and other writers on Hindu law have believed it to be. But when all has been said, I think there is still, as is shown by my brother Banerji in his judgment, strong authority for holding that the adoption is illegal according to Hindu law, and that it is therefore incumbent on the appellant to adduce clear proof of usage if he wishes the adoption to be maintained. This he has not done. It would be difficult for the other side to prove that there is no such usage; but in my humble opinion there is some force in the argument which the learned vakil for the respondents based on the very small number of reported cases in which the legality of such an adoption has been challenged. As Mayne remarks, “the effect that every adoption must have upon the devolution of property causes every case that can be disputed to be brought into Court.” It seems to me that, if there were no bar against it, a sonless Hindu would from natural affection prefer to adopt the son of a daughter, a sister, or a mother’s sister rather than the son of a more distant kinsman; such an adoption if made would undoubtedly, on the authorities as they at present stand, be eminently capable of being disputed, and I therefore think that it is not unreasonable to draw an inference from the paucity of reported cases against the existence of any such usage. This may not be a very strong argument, but such as it is, it to my mind tells in favour of the respondent. It is true that the authors of the Dattaka Mimansa and Dattaka Chandrika, the special treatises on the subject of adoption, are only commentators. But the works of commentators occupy a peculiar position in Hindu jurisprudence. Wilson, in his introduction to Sir W. Macnaghten’s Principles of Hindu and Muhammadan Law, remarks: “The law books of the Rishis, even of Manu and Yajnawalkya, although they furnish the groundwork of Hindu jurisprudence, are not regarded as practical guides, except, when elaborated by their commentators, as in the case of the Mitakshara, works of preferable weight on the systems of late jurists, or separate treatises on special topics, as inheritance, adoption and the like (p. XV, Introduction).”

47. The authors of these two treatises pronounce against the legality of an adoption such as that set up by the appellant. The text of Cakalya, which they each cite, clearly bears out their view, and I do not think we have sufficient ground for supposing that they have either invented or garbled this text.

48. The authors of these treatises also rely on a text of Cakalya, which contains this passage: “For the three superior tribes, a sister’s son is nowhere (mentioned as) a son.” In Section II 108 of the Dattaka Mimansa, the. author, Nanda Pandita, referring to the above passage of Caunaka, holds that the expression “sister’s son” is illustrative of the daughter’s son and mother’s sister’s son, and be goes on to say,–“This is proper, for prohibited connection is common to all three.” From this and other passages (see in particular Dattaka Mimansa, v. 20) Sutherland has formulated the rule that no one can be adopted whose mother the adopter could not legally have married. If the assertion of Caunaka that “a sister’s son is nowhere mentioned as a son for the three superior tribes” can be, as Nanda Pandita supposes, looked on as a “reason” for what immediately precedes, this might, applying the rule of construction set forth in the Mimansa of Jaimini, render the preceding passage an admonition and not a positive prohibition. But this course of construction ‘will not affect the broad statement in the passage quoted, as it itself is not followed by any reason. The passage quoted seems to me to be neither a prohibition nor an admonition, but simply the assertion of a fact. The case law on the question has been gone into exhaustively in the judgments of the learned Chief Justice and my brother Banerji.

49. I regret much that I find myself on the question referred to us unable to agree with the learned Chief Justine and the majority of my colleagues. I concur with my brother Banerji, and hold that the adoption propounded by the appellant is contrary to Hindu law, and is not shown to be sanctioned by any special usage of the caste to which he belongs. I would therefore, dismiss this appeal.

Edge, C.J.

50. The suit in which this appeal has arisen was brought by the paternal uncles of Madho Singh, deceased, against Bhagwan Singh, a minor, Musammat Matan Kuar, the widow of Madho Singh, and Musammat Sughri Kuar, the mother of Madho Singh, for declarations that the plaintiffs were as reversioners entitled upon the death of Matan Kuar and Sughri Kuar to certain immoveable property which had belonged to Madho Singh in his lifetime, and that an alleged adoption of the defendant Bhagwan was null and ineffectual.

51. Madho Singh was a sonless and a separated Hindu. The defendant Bhagwan Singh is the natural son of a sister of Madho Singh’s mother; and it is alleged by the defendant Bhagwan Singh and denied by the plaintiffs that he was i& fact adopted by Madho Singh. That issue as to whether in fact the adoption took place has not yet been tried. The plaintiffs dispute that alleged adoption on several grounds, only one of which need be considered by us at present.

52. It was in the Court below successfully contended on behalf of the plaintiffs that the defendant, being a son of a sister of the mother of Madho Singh, an adoption of him by Madho Singh was prohibited by, and was illegal under, the Hindu law; and consequently that the adoption alleged by the defendant Bhagwan Singh, if it in fact took place, was void and ineffectual. Syed Akbar Husain, then the Subordinate Judge of Cawnpore (accepting the view of the law expressed in paragraph 118 of Mr. Mayne’s Hindu Law and Usage), held that as the parties belonged to one of the three regenerate classes of Hindus, the alleged adoption was prohibited and void, and, without trying any of the other issues in the suit, gave the plaintiffs a decree, declaring the plaintiffs to be entitled as reversioners and. the alleged adoption to be void. From that decree the defendant Bhagwan Singh has appealed to this Court. His appeal has been referred to the Full Bench.

53. It is conceded by both sides and could not be disputed, that amongst Sudras the adoption of the son of a daughter, of the son of a sister, or of the son of a sister of the mother of the adopter is permissible under the Hindu law, but it is contended on behalf of the plaintiffs that the Hindu law prohibits, and makes illegal, an adoption by any one of the three regenerate classes of a sister’s son, of a daughter’s son, and of a son of a sister of the mother, of the adopter. In support of that contention the Dattaka Mimansa of Nanda Fandita, a text cited in that Mimansa as a text of Sakalya, a text cited in the same Mimansa as a text of Saunaka, opinions expressed by Sir Francis Macnaghten in his Considerations on the Hindu Law as it is current in Bengal, by Sir William Maenaghten in his Principles and Precedents of Hindu Law, by Sir Thomas Strange in his Hindu Law, by Mr. Mayne in his Hindu Law and Usage, and in Messrs. West and Buhler’s Digest of the Hindu Law and certain decisions of the Courts in India have been relied upon.

54. It will, I think, be found, on consideration that the case for the plaintiffs depends on the question as to how far the views of Nanda Pandita as expressed in his Dattaka Mimansa were justified and can be relied upon I and if those views were justified, then, upon the equally important question as to how far, if at all, the Dattaka Mimansa of Nanda Pandita has been accepted as a commentary of authority by the School of Benares, and as binding upon Hindus of that school.

55. On the other hand, it has been contended before us on behalf of the defendant that there is no authoritative prohibition in the sacred law of the Hindus against the adoption by one of the three regenerate classes of a daughter’s son, of a sister’s son, or of a son of a sister of the mother of the adopter; that no such prohibition and no text containing such a prohibition have been accepted or acted upon by the Hindus subject to the Benares School of Hindu law; that the view that such a prohibition existed originated in the Dattaka Mimansa of Nanda Pandita, or in the Dattaka Chandrika; that the alleged text of Sakalya appeared, so far as can be now ascertained, in the Dattaka Chandrika for the first time; that, even if the text in question-was in fact a text of Sakalya, Sakalya was not accepted as an authority of importance by the Benares School of Hindu law; that Sakalya was not referred to in the Mitakshara or in any book of the Hindus received as an authority by the School of Benares; that no such limitation is to be found in the laws of Manu, in any text of Vasishtha, in any of the Vedas, Srutis or Smritis, or in the Mitakshara, or in any other Commentary on the Hindu Law prior in date to the Dattaka Mimansa of Nanda Pandita or the Dattaka Chandrika. It was also argued on behalf of the defendant that the early English text writers on the subject were influenced by Mr. Sutherland’s Synopsis and by the translation into English of the Dattaka Mimansa, at a time when most of the Sanskrit texts were as yet untranslated into English, and that they attributed an undue importance to the Dattaka Mimansa, which was merely a Commentary on the Hindu Law of Adoption, written by Nanda Pandita within the last 300 years. Reliance was also placed on behalf of the defendant on certain decisions of Courts in India, and 1 upon the opinions expressed by that eminent Sanskrit scholar and writer on Hindu Law, Professor Jolly (Outlines of an History of the Hindu Law of Partition, Inheritance and Adoption as Contained in the Original Sanskrit Treatises) and upon the criticisms of the late Vishvanath Narayan Mandlik in his Vyavahara Mayukha, and upon certain texts cited in the Hindu Law of Adoption of Golap Chandar Sarkar. It was also contended and with much force on behalf of the defendant that, before deciding that in these provinces such a restriction of the right of adoption existed, we should be reasonably satisfied that the adoption by one of the three regenerate classes of a daughter’s son, of a sister’s son and of a son of a sister of the mother of the adopter was in fact prohibited in authorised texts of the Hindu law and had been accepted and acted upon by the Hindus of the Benares School, and attention was drawn to the fact that in Madras and the Punjab and in Bombay according to Mr. Mandlik, and also in Lower Bengal, if two of the early cases related to that province and if a statement of Golap Chandra Sarkar was well founded, the alleged prohibition had not been universally accepted or acted upon by Hindus of the regenerate classes.

56. In approaching a consideration of any disputed question of Hindu law it is well to bear in mind what Sir William Macnaghten truly said in his Preliminary Remarks (pages VI, VII and VIII of the 3rd Edition) to his Principles and I Precedents of Hindu Law; “I apprehend that the Hindu Law, in its pure and original state, does not furnish many instances of uncertainty or confusion. The speculations of commentators have done much to unsettle it, and the venality of Pandits has done more. * * * * * * Authorities are frequently cited in support of a particular doctrine, which are indeed genuine passages of law, but applicable to a question wholly different from the subject-matter. Again, authorities may be cited, which are both genuine and applicable to the identical subject treated of, but which are of no weight in the particular province whose doctrine should have been adopted. Further facility for evasion is gained by the confusion between natural and civil obligations. This is the case in the Hindu Law, especially as it obtains in the province of Bengal. It by no means follows that, because an act has been prohibited it should therefore be considered as illegal. The distinction between the vinculum juris and the vinculum pudoris is not always discernible.”

57. I may say that from what I had read in Sir William Macnaghten’s Principles and Precedents of Hindu Law, in Mr. Sutherland’s Synopsis, and in Mr. Mayne’s Hindu Law and Usage, I approached the consideration of this appeal under the firm impression that the adoption by Madho Singh of the son of his mother’s sister was an adoption prohibited by Hindu law and illegal according to the School of Benares.

58. The parties in this case are Kshatriyas and are governed by the Benares School of Hindu Law. As Kshatriyas, they belong to one of the three regenerate classes of Hindus. What we have to ascertain is, does the Hindu law as accepted by the Benares School prohibit the adoption by a Kshatriya of the son of his mother’s sister, in the sense of making such an adoption illegal and void. So far as this question of adoption is concerned, on the authorities relied upon on behalf of the plaintiffs, if those authorities are reliable and are to be applied by us, a sister’s son, a son of a daughter and a son of a mother’s sister stand in the same position; all of them are eligible for adoption or none of them are.

59. It has not been suggested that there is any evidence in this suit of any usage in these Provinces by which the adoption, in the Dattaka form, of the son of a sister of the mother of the adopter, or of his sister’s son or of his daughter’s son, amongst any of the three regenerate classes is either recognised as valid or prohibited as illegal. Neither side in this case has pleaded or relied upon any custom or usage. If any such usage exists in these Provinces or in the district of Cawnpore in which the parties to the appeal reside, I have no personal knowledge of it, nor with one exception, that in the case of Bohra Brahmans, to which I shall refer at some length later on, have I any judicial notice of any such usage in these provinces. In order to clear the ground, I may say that I have put the question to the other Judges on this Bench, and that there is not one Judge on this Bench who is able to say of his own personal knowledge that there is any custom in any part of these provinces amongst Hindus of the Benares School which either permits or prohibits an adoption of a sister’s son, of a daughter’s son or of the son of a mother’s sister amongst any of the three regenerate classes of Hindus. It is hardly necessary to say that no Judge on this Bench is a Hindu who is subject to the School of Benares, and in that respect we all stand upon the same footing of Judges ‘alien to the Hindus of these provinces who are subject to the Benares School.

60. In order to arrive at a conclusion on the important question which we have to decide, I propose to deal with the subject in the following order. I shall begin with the consideration of an argument which has been pressed upon as–that we should, from the paucity of reported cases on this question of adoption in which Hindus who were subject to the School of Benares were concerned, assume that such an adoption as that in this case was by the Hindu law or by usages of the Hindus of that school illegal, and as part of that subject I shall express my opinion as to the side on which the onus of proof in this case lies. I shall then consider the ancient texts on this subject, as to which and as to the meaning of which there is no dispute, and which are undoubtedly ancient, texts of great authority in the Benares School. I shill then consider whether the Dattaka Mimansa of Nanda Pandit a has ever been, as it was stated by Sir William Macnaghten that it was, “an infallible guide” on questions of adoption in the province of Benares, and what its authority in the School of Hindu law of Benares is. I shall then examine the texts on this subject as given in the Dattaka Mimansa of Nanda Pandita and consider how far those texts and his comments on them can be relied upon. I shall then consider the question whether, so far at least as the Hindus of the School of Benares are concerned, the statements and opinions of the English text-book writers, who followed Mr. Sutherland’s statement of the law on this question, and who wrote between 1820 and 1830, can be relied upon as accurate statements of the law. I shall then refer to all the reported cases of which I am aware, which throw any light upon this question and in which the parties were Hindus who were subject to the School of Benares; and, lastly, I shall refer to those reported cases in Madras and Bombay on this question of adoption, to the reports of which I have access, and I shall then state the final conclusion on this question before us at which I have arrived.

61. In the course of the argument we were pressed by the learned vakil for the plaintiff-respondents to assume, from the fact that there are but few reported cases in which any question arose in the courts as to the legality or illegality of an adoption by a member of one of the three regenerate classes governed by the law of the Benares School of a sister’s son, of a daughter’s son or of a son of a mother’s sister, either that such an adoption was contrary to the. Hindu law accepted and acted upon by those subject to the Benares School, or that there exists a custom which prohibits such an adoption. It appears to me that I am not at liberty to make any assumption based solely on the fact that the legality or illegality of such an adoption amongst Hindus of any of the three regenerate classes has seldom, so far as the reports show, been the subject of litigation between Hindus subject to the School of Benares; and further, that if I did on such materials make any assumption one way or the other, it would just as likely be wrong as right. For all I know, such adoptions may have been of frequent occurrence and seldom questioned, or may have been of infrequent occurrence, and each such adoption may have been questioned in a court of law. Instances of such adoptions having been treated as valid by those whose interest it was to dispute them may have been sufficiently numerous to deter others from questioning their validity notwithstanding the prohibition of Nanda Pandita and the non-judicial opinion of Sir William Macnaghten. On the other hand, instances of such adoptions having been made may, from causes other than the existence of a prohibition, have been infrequent. Many Hindus we know are influenced by a desire to keep ancestral property in their particular got. When Judges are in ignorance of the fact, it is not only useless but dangerous to indulge in speculations as to what may or may not be the usages amongst Hindus of a particular school, or of Hindus in a particular province or in a particular district. There would be absolutely no certainty as to the correctness of judicial decisions if Judges were to make assumptions on such materials as the infrequency of litigation concerning matters as to which there was no proof of custom one way or the other, and as to which the general law affecting the matter was not otherwise ascertained or ascertainable. On many other subjects which might come before us we might be pressed with the fact that on such materials we had in this case made an assumption as to the civil and religious rights of the parties, and might be asked in other cases not affecting Hindus or the law of adoption to make assumptions on similar materials. One fact is of more value than a thousand assumptions and will show how unreliable is the argument which is founded on the paucity of reported cases. The Bohra Brahmans are a wealthy subdivision of the Brahman caste in these Provinces, possessing much property. In two suits which came in appeal before another Judge of this Court and myself in 1891 Chain Sukh Ram v. Parbati and Mansa Ram v. Sundar I.L.R. 14 All. 53, and to which I shall refer at more length later on, it was proved beyond doubt; to the satisfaction of the Hindu Subordinate Judge and of this Court, by witnesses from Delhi and from no less than eight districts of these provinces, that there existed a usage amongst Bohra Brahmans by which the sons of sisters were validly adopted. In that case there were only two instances of such adopted sons not succeeding to the property of the men who had adopted them, and in one of them the adopted son had received from the other members of the family a substantial sum of money for foregoing his claim. There was not the slightest doubt that the Bohra Brahmans of that suit were Hindus and a subdivision of the Brahman caste, although separated from Brahmans as a body. The validity of the same adoption, that of one Prem Sukh by one Bildeo Sahai, had been challenged in a suit which came on appeal before the Court in 1885 Parbati v. Sundar I.L.R. 8 All. 1 and was before the Privy Council in appeal in 1889, Musammat Sundar v. Musammat Parbati L.R. 161. A. 186. In all three suits those who challenged the adoption of Prem Sukh did so on the ground that the parties being members of one to the three regenerate classes of Hindus, the prohibition of the Dattaka Mimansa of Nanda Pandita applied to the adoption. Quite recently, and in reference to the bearing of that litigation upon the argument which I am considering, it was suggested that Bohra Brahmans may have been converts to Hinduism from Muhammadanism, although I have always understood that no man could be a Hindu who had not been born a Hindu. However that may be, the only foundation for that suggestion was that apparently the Bohra Brahmans who had continued to reside in Gujrat had, like many Brahmans in other parts of India, become converts to Muhammadanism, which is quite another thing. If those suits, which related to one and the same adoption, had not been brought, we should probably have been asked to infer, from the fact that the Bohra Brahmans are as a body possessed of much valuable property, and from the fact that there was no reported case in which the question as to the power of Bohra Brahmans to validly adopt a sister’s son was raised, that they were governed by the Dattaka Mimansa of Nanda Pandita, and that adoptions of sister’s sons had never taken place amongst them.

62. Fortunately their Lordships of the Privy Council have in the passage which I shall quote from their judgment in The Collector of Madura v. Moottoo Ramalinga Sathupathy 12 Moo. I.A. at p. 436, stated what the duty of European Judges administering Hindu law is. The passage is as follows: “The duty, therefore, of an European Judge who is under the obligation to administer Hindu law, is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For under the Hindu system of law, clear proof of usage will outweigh, the written text of the law.” (The italics are mine). It has been contended in the case, on behalf of the plaintiffs, that there is no “disputed doctrine” in this ca. that the statements of Nanda Pandita as to the law in his Dattaka Mimansa are conclusive, and that it is for the defendant to prove a usage exempting him from the prohibition of Nanda Pandita in that Mimansa, and not for the plaintiff to prove that the Dattaka Mimansa of Nanda Pandita has been accepted as a binding authority on this question by the School of Benares, or that by a usage amongst the Hindus of that school the general right of adoption has been limited and such adoptions as that in this case have been prohibited. In support of that contention it has been argued on behalf of the plaintiffs that a doctrine is not a “disputed doctrine” within the meaning of the passage which I have quoted from the judgment of their Lordships of the Privy Council if a text can be found quoted by a modern commentator as a text of an ancient authority of the Hindu law which, as quoted, either unequivocally announces the doctrine or has been construed by that modern commentator as announcing the doctrine, although the authenticity of the alleged text is disputed and there is good reason to doubt its authenticity, or the corrections of the construction placed upon it. That to my mind is a vicious argument. It is based on assumptions which for the purposes of arguing his client’s case a counsel might put forward, but which cannot be made by a Judge and used by him as the basis, not of a forensic argument, but of a judicial decision. It assumes that the text is an ancient text, that it stands alone, or if there are other ancient texts on the same subject that it is in harmony with them and does not qualify them or limit their application, and that it has been rightly construed by the modern commentator and that his construction has been accepted by the School of Hindu Law in which it is sought to be applied. It is obvious to me, for instance that if one ancient and admitted text permits an adoption without a particular limitation and if another ancient and admitted text imposes that particular limitation on the right of adoption, the two texts are in conflict and there k a. disputed doctrine. If the limitation is prohibitive an adoption which would be valid under one text would be invalid under the other. The two texts would not-admit of the same construction and there would be a disputed doctrine.

63. What is sought by the plaintiffs in this suit is a declaration that Madho Singh, by reason of his having been a Kshatriya, was incapable of validly adopting the son of his mother’s sister, and consequently that the adoption of the defendant Bhagwan Singh by Madho Singh was illegal and void. The consequences of our hastily making such a declaration are so wide-reaching as to make it necessary that we should proceed with the greatest care and circumspection. The principle and the authority, if they can be relied upon, upon which we are asked to make that declaration, apply equally to every adoption of a sister’s son and of a daughter’s son as to adoptions of the son of a mother’s sister, amongst those of the three regenerate classes, who either in. these provinces or other parts of India, are subject to the Hindu law of the Benares School. The result of such a declaration, unless it were justified by the Hindu law of the Benares School, or by clear proof of 1341] usage, would be to arbitrarily limit the right of adoption recognised by Manu, and other Rishis, and by Hindu commentators, such as the author of the Mitakshara, who are and have been for ages indisputably accepted by Hindus of the Benares School as of paramount authority; it would also cast a doubt upon the efficacy of the funeral and other rites which have been performed by-adopted sons, who happened to have been the sons of a sister, of a daughter or of. a mother’s sister of the adopter, when the adopter belonged to one of the three regenerate classes, in obtaining the release of the soul of the adopter and of the souls of his ancestors from put or the hell of the Hindus. Such a declaration would deprive the defendant Bhagwan Singh of all right in reversion to the property claimed in this suit, and would cast doubt upon the title of every such adopted son to the property which he had obtained from his adopting father on the strength of the adoption having been valid.

64. It appears to me that these plaintiffs claiming such a declaration limiting the right of adoption must, in order to succeed, either rely upon an undoubted text of the sacred law of the Hindus of the Benares School prohibiting such an adoption, or must give clear proof of usage amongst the Hindus of the Benares School excluding and invalidating such an adoption, or, what would be in effect the same thing, must clearly prove that the views as to such an adoption being illegal of a commentator on the Hindu law have been generally accepted and acted upon as correct expositions of the Hindu law On the subject. by the Hindus who are subject to the Hindu Law of the-Benares School.

65. A commentator on Hindu law is not a lawgiver and has no more authority to alter the test of the Hindu law or to prescribe limitations of the Hindu law of adoption than has any other member of the public. I think in that, proposition every orthodox Hindu will agree. The commentary may or may not be intrinsically valuable as a guide to the true construction of the sacred texts of the Hindu law, but it is not itself a sacred text. The opinion propounded in the commentary may lead to the growth and establishment of a usage in accordance with the views so expressed, although such views -limit the right under the ancient text, and in such case “clear proof of usage will outweigh the written text of the law.” The Hindu law contains admonition against the doing of some acts, and positive prohibitions against the doing of other acts. Acts which are positively prohibited are illegal in Hindu law and do not in these provinces effect their object. An act contrary to what is an admonition and is not a positive prohibition may be sinful, but it is neither illegal nor ineffective. The ancient texts of the Hindu law were written according to a system. If they had not been so written it would be frequently impossible to decide whether the doing of a particular act was positively prohibited or was merely admonished against in the text as being a moral sin. The Mimansa. pf Jaimini, to which I shall have to refer later on, tells us what are the rules in this respect for the construing of ancient sacred texts of the Hindus.

66. Assuming for present purposes the factum of the adoption, the onus of proving that the adoption was illegal and invalid is in, my opinion upon the plaintiffs, and for these reasons : Manu and the author of the Mitakshara suggest no such limitation of the right of adoption; that sonless Hindus of all classes may adopt a son is beyond question; it is for those who would limit the right of adoption in this case to point to an undisputed and unambiguous sacred text of the Hindu sacred law, if there is one, recognised and acted upon by the School of Benares, or to give clear proof of a usage amongst the Hindus of that school, which limits that right of adoption by making such an adoption as that in the present case illegal; on the assumption that the adoption has in fact taken place, it is for the plaintiffs, who claim a declaration that the adoption was illegal and void, to prove that such an adoption is illegal. It would not be sufficient to prove that the adoption was merely sinful. If the adoption was merely sinful the principle of the maxim quod fieri non debet factum valet would apply and the adoption would, although sinful, be valid for all purposes. On the other hand, if an admitted text of the Hindu sacred law of the-particular school prohibited an adoption except under certain specified circumstances, the onus of proving that such a prohibited adoption was by usage valid would be upon the party relying upon such an adoption. Such was the case in Tulshi Ram v. Behari I.L.R. 12 All, 328, in which, contrary to the admitted text of Vasishtha, “Nor let a woman give or accept a son except with the assent of her lord,” it was contended that amongst Hindus subject to the School of Benares, in which school the text which I have quoted is received as. an admitted text of Vasishtha, an adoption made by a widow to her deceased husband without this express authority was valid. In that case, after referring to cases which bad been decided and in which the parties were Hindus subject to the? School of Benares (one of those cases was a case from these provinces in the-Privy Council) I said, and I think rightly: “I would expect that any one who would now contend that a Hindu widow subject to the Benares School could make a valid adoption to her deceased husband without express authority given by him, would support that contention by clear proof of general usage in the particular district that an adoption under such circumstances was in the particular district recognised as valid by those subject to the Benares School.” In the latter case, that of an adoption of a son by a wife or widow to her husband, a text accepted and admitted to be genuine by the School of Benares-imposed in prohibitive language the limitation on the general right to adopt, whilst in the case under consideration in this appeal a limitation on the general right to adopt is sought to be imposed first by a text alleged to be a text of Sakalya, but which has never been recognised as genuine by any commentator of authority of the School of Benares, and secondly by Nanda Pandita’s construction of two portions of a text of Saunaka, a construction which has never been accepted as correct by any commentator of authority in the School of Benares, unless indeed it be assumed that Nanda Pandita is in the School of Benares a commentator of authority. I hope to show that any such assumption would be rash in the extreme, and would not be justified by the facts. If it was permissible for a Judge to make assumptions without justification, the onus of proof would depend on the caprice, bias or lack of information or of consideration of the particular Judge, and not upon principles of law applied facts which have been either proved or admitted or of which a Judge is allowed to take judicial notice. In such case the rights of litigants might depend upon the means of knowledge of particular facts relied upon by the Judge as of his own knowledge but which were not proved by evidence or admitted by the parties, and it might appear if the Judge were in the witness box that his knowledge depended upon mere rumour or hearsay, and that his evidence as to these facts would not have been admissible if he had been examined as a witness.” “A Judge cannot, without giving evidence as a witness, import into a case his own knowledge of particular facts,” and “his own knowledge and belief on public rumour” are “grounds upon which no Judge is justified in acting.” See the judgments of their Lordships of the Privy Council in Hurpurshad v. Shec Dyal L.R., 3 I.A. at p. 286, and in Meethun Bebee v. Busheer Khan 11 Moo. I.A. at p. 221. I have made the above observations because it has appeared to me that there was a danger in this case of our imposing the onus of proof upon the wrong parties owing to some of us, myself amongst the number, having been at the commencement of the arguments influenced by preconceived extra-judicial opinions, which, so far as I am concerned did not rest upon any sure foundation.

67. Before considering what is the authority to be allowed to the Dattaka Mimansa of Nanda Pandita in this matter, I shall briefly refer to the Hindu text law on this subject as it was known before Nanda Pandita wrote that commentary.

68. Amongst the earliest of those Rishis to whom the Dharmasutras are attributed was Vasishtha. The holy Yama and Saunaka were of the Sutra period as was also Narada. Whether Manu preceded Vasishtha or came after him, the Code of Manu, as we now have it, contains quotations from Vasishtha. Next in authority and order of date to Manu came Yajnyavalkya. According to Mr. Mayne, the work of Yajnyavalkya “is more than 1,400 years old, but how much older it is impossible to say.” Sitting here as a Judge to decide a question of Hindu law between Hindus it is not for me to express an opinion as to the personality of Manu. It is sufficient to say that orthodox Hindus accept the laws of Manu as having been divinely inspired, and that Manu states that he received the code from Brahma and communicated it to the sages. That in its present form it is not as it originally was is probable. Sir W. Jones places the Code of Manu in its present form as early as 1280 B.C. So far as I am aware it has not been suggested by any one capable of forming an opinion that it is of a later date in its present form than about 200 B.C. Mr. Mayne, in paragraph 20 of his Hindu Law and Usage, 5th edition, says correctly: “The Code of Manu has always been treated by Hindu sages and commentators from the earliest times, as being of paramount authority; an opinion however, which does not prevent them from treating it as obsolete whenever occasion requires.” There can be no doubt that in the Benares School of Hindu law the Code of Manu always was and still is of paramount authority.

69. An adopted (Datrima) son is referred to in the 141st, 142nd, 159th and 168th slokes of Chapter IX of the Code of Manu. The 168th sloke as translated by Dr. Buhler, (Sacred Books of the East, Vol. XXV, page 361) is as follows: “168. That (boy) equal (by caste) whom his mother or his father affectionately give, (confirming the gift) with (a libation of) water, in times of distress (to a man) as his son, must be considered as an adopted son (Datrima).’

70. Beyond the limitation contained in the 168th sloke, Manu in no way imposed any limitation on the adoption of a son in the Dattaka form of adoption.

71. As to adoption Vasishtha in slokes 1 to 10 of Chapter XV, as translated by Dr. Buhler (Sacred Books of the East, Vol. XIV, pages 75 and 76) says:

1. A man formed of uterine blood and virile seed proceeds from his mother and his father (as an effect) from its cause.

2. (Therefore) the father and the mother have power to give, to-sell, and to abandon their (son).

3. But let him not give or receive (in adoption) an only son.

4. For he (must remain) to continue the line of the ancestors.

5. Let a woman neither give nor receive a son except with her husband’s permission.

6. He who desires to adopt a son, shall assemble his kinsmen, announce his intention to the king, make burnt-offerings in the middle of the house, reciting the Vyahritis, and take (as a son) a not remote kinsman, just the nearest amongst his relatives.

7. But if a doubt arises (with respect to an adopted son who is) a remote kinsman, (the adopter) shall set him apart like a Sudra.

8. For it is declared in the Veda, ‘Through one he saves many.’

9. If, after an adoption has been made, a legitimate son be born, (the adopted son) shall obtain a fourth part.

10. Provided he be not engaged in (rites) procuring prosperity.

72. The 3rd of the above slokes contains what read with the 4th sloke has been held by some Courts as a positive prohibition against the adoption of an only son and by this Court and some Judges of other Courts as an admonition only against the adoption of an only son.

73. The 5th sloke has been the cause of diversity of opinion amongst the Courts in India.

74. There is not one word in Manu or in Vasishtha implying that a sister’s, son, a daughter’s son or the son of a mother’s sister may not be lawfully and validly adopted. It was admitted during the arguments in this case that there is not one word in Yajnyavalkya suggesting that a sister’s son, or a daughter’s son or the son of a in mother’s sister may not be lawfully and validly adopted. Yajnyavalkya is an undoubted authority in the school of Benares.

75. It has been assumed on the authority of Sir William Macnaghten (Principles and Precedents of Hindu Law, vol. 1, p. 67) that according to Narada a son of a woman whom the adopter could not have married, such as the son of a sister or the son of a daughter, could not be legally adopted amongst the three regenerate classes. Professor Jolly has translated the Narada Smriti and we have his assurance at page 162 of his Outlines of an History of the Hindu Law, that such a rule does not occur in either of the two versions of the Narada Smriti.

76. As to Yama Mr. Mandlik in his Vyavahara Mayukha at page 483 says, that the Sarasvativilasa quotes a text of Yama which he gives in Sanskrit and which when translated is as follows: “In the case of a daughter’s son and a brother’s son, the rule with regard to a surface and the like does not prevail. (The act of adoption) is complete by a verbal gift alone. So says the holy Yama.” Mr. Mandlik says that the same text was subsequently, on the authority of the Sarasvativilasa, quoted in the Dattaka Darpana of Dvaipayana and was adopted by the Sastris of the Bombay Sudder Dewani Adalat in Huebut Rao Mankur v. Govind Rao Balwant Mankur, 2 Borradaile, 87. A slightly different reading of the same text of Yama is given by Golap Chandra Sarkar at page 334 of his Hindu Law of Adoption from his recollection of the text as taught by Pandit Bharat Chandra Siromani to his pupils. Golap Chandra Sarkar gives the translation of the text as remembered by him as follows: “It is not expressly required that burnt-sacrifice and other ceremonies should be performed on adopting the son of a daughter, or of a brother, for it is accomplished in those cases by word of mouth alone.” That text of Yama distinctly recognised without any qualification or limitation the right of a Hindu to adopt his daughter’s son.

77. The Mitakshara, which is the commentary having as a commentary paramount authority in the Benares School of Hindu Law, treats to some extent of adoption, but, so far as I have been able to ascertain, it does not contain one single word which could suggest that the adoption of the son of a sister, of a daughter or of a mother’s sister was. prohibited amongst any class of Hindus. Mr. Mayne says in paragraph 26 of his Hindu Law and Usage, 5th ed.: “Far the weightiest of all the commentaries is that by Vijnanesvara known as the Mitakshara. Its authority is supreme in the City and Province of Benares, and it stands at the head of the works referred to as settling the law in the South and West of India.” The age of the Mitakshara has, according to Mr. Mayne, following West and Buhler (Mayne’s Hindu Law and Usage, 5th ed., paragraph 26), been fixed by recent research to be the latter part of the eleventh century. It seems to me to be in the highest degree improbable, if any text of the Hindu Law recognised by the School of Hindu law of Benares had contained any direct prohibition, or any text which was construed by that school as indicating a prohibition, against adoptions by any classes of Hindus of a sister’s son, or of a daughter’s son, or of the son of a mother’s sister, that the Mitakshara should be entirely silent on such an important limitation of the right of adoption.

78. I shall reserve what I have to say as to Saunaka and Sakalya until I am dealing with the Dattaka Mimansa of Nanda Pandita as it is upon two sentences of a text of Saunaka and upon a text given by him as a text of Sakalya that Nanda Pandita in his commentary bases his assertion that amongst the three regenerate classes, a sister’s son, a daughter’s son and the son of a mother’s sister cannot be adopted.

79. Unless the construction put upon the text from Saunaka by Nanda Pandita be correct and unless the text given by Nanda Pandita as from Sakalya can be relied upon and is a full and complete text, not one single text from the sacred law of the Hindus, and not one passage from any commentator anterior in date to the time when the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika were written have been put before us, or, so far as I am aware, exist, which could suggest that a member of any one of the three regenerate classes was prohibited from adopting a son of a sister, of a [daughter?] or of a mother’s sister.

80. It is within my experience that it is apt to be assumed that a Hindu Commentator has been accepted as an authority by a particular School of Hindu law if his views on some subjects are found to be in harmony with doctrines of that school. I confess that I have before now made such an assumption. To my mind no more dangerous assumption could be made. The views of the wildest, most inaccurate and most pedantic of commentators would on many subjects probably be found to be in harmony with doctrines. admittedly orthodox. It has also sometimes been assumed that a Hindu commentator is an accepted authority of a particular School of Hind a law because he was born or lived within the district in which the doctrines of that school of law prevailed. In the sacred city of Benares learned men of every school of Hindu law have resided and are to be found. In the case of Nanda Paadita the above assumptions have been made. Nanda Pandita, although he was born is Benares and although he and his family resided in ‘Benares, came, so far as can be ascertained, of a family from Bedar in Southern India which had settled in Benares. Whether Nanda Pandita’s family was an old family of Benares, or had come to Benares from Southern India, or elsewhere, it is certain that on some important questions relating to the law of adoption the opinions of Nanda Pandita have been held not to be in accordance with the doctrines of the school of Benares.

81. Before considering the text of the Dattaka Mimansa it is necessary to consider whether the authority of that commentary is so supreme as it was assumed to be by Sir William Macnaghten when, in referring to the Dattaka Mimansa and the Dattaka Chandrika, he said: “They are equally respected all over India; and where they differ, the doctrine of the latter is adhered to in Bengal and by the Southern jurists, While the former is held to be the infallible guide in the provinces of Mithila and Benares.” I have been unable to ascertain upon what authority Sir William Macnaghten made that statement in his Preliminary Remarks to his Principles and Precedents of Hindu Law. He was no doubt a diligent student of Hindu law, and whilst he was the Registrar of the Sudder Dewani Adalat in Calcutta he carried through the press three volumes of Reports of decided cases. It will appear, I think, from what I shall say later on that Sir William Macnaghten adopted an erroneous view of Mr. Sutherland’s on this question of adoption.

82. It may be doubted from paragraph 30 of the 5th edition of Mr. Mayne’s Hindu Law and Usage whether Sir William Macnaghten, then Mr. W. H. Macnaghten, had, when he wrote on the subject, a correct idea of the authority to be allowed to the Dattaka Mimansa or to the Dattaka Chandrika, and it would appear that he and Mr. Sutherland, who translated the Dattaka Chandrika, were under a misapprehension as to the authorship of that commentary.

82. On some questions the Dattaka Mimansa of Nanda Pandita is in accord, and not in conflict, with the texts and doctrines of the School of Benares, and such authority, if any, as it ever possessed in that school of Hindu law is, I believe, attributable to that fact, and is confined to those questions on which it is in harmony with the texts and doctrines of the Benares School.

83. It is certain that on some most important and vital questions relating to the law of adoption the doctrines of the Dattaka Mimansa of Nanda Pandita have not been followed; as, for instance, by their Lordships of the Privy Council on the question as to whether when there is a brother’s son eligible for adoption a person who was not a brother’s son can be lawfully adopted in Srimati Uma Deyi v. Gokoolanund Das Mahapatra L.R. 5 I.A., 40, in which case it was held that the texts of the Dattaka Mimansa of Nanda Pandita and the texts of the Dattaka Chandrika, which, their Lordships (at page 50 of the report) said, “do in terms prescribe that a Hindu wishing to adopt a son shall adopt the son of his whole brother, if such a person be in existence and capable of adoption, in preference to any other person,” have not the force of law; and by this Court, which has in nearly all questions of Hindu law to administer the Hindu law of the Benares School, on the question as to the adoption of a Brahman aged more than five years in Ganga Sahai v. Lekhraj Singh I.L.R. 9 All. 253, on the question whether a widow can under any circumstance adopt a son to her husband after the husband’s death in Tulshi Ram v. Behari Lal I.L.R. 12 All. 328, and in other cases; and on the question of the adoption of an only son in Beni Prasad v. Hardai Bibi I.L.R. 14 All. 67.

84. The authority of the Dattaka Mimansa was discussed by Mr. Justice Mahmood in Ganga Sahai v. Lekraj Singh I.L.R. 9 All. at pp. 318, 319, 322 et seqq., and by me in Beni Prasad v. Hardai Bibi I.L.R. 14 All. at p. 81, et seqq. In Tulshi Ram v. Behari Lal I.L.R. 12 All. 328, Mr. Justice Mahmood assigned to the Dattaka Mimansa of Nanda Pandita a place of authority in the Benares School as “a book of reference” on the Hindu law of adoption. (See page 342 of I.L.R. 12 All. When that case was before this Court I had not carefully considered what the authority of the Dattaka Mimansa of Nanda Pandita really was. In that case, although I agreed in the judgment of Mr. Justice Mahmood, I mainly relied upon decided cases in which the parties had been Hindus subject to the Benares School. At the time when the case of Tulshi Ram v. Behari Lal was before this Court it was assumed by this Court, but incorrectly, that their Lordships of the Privy Council had in The Collector of Madura v. Ramalinga Sathupathy 12 Moo. I.A. 397, accepted the statement of Sir William Macnaghten that the Dattaka Mimansa of Nanda Pandita was an infallible guide in the Province of Benares on questions of adoption. (See pages 341 and 342 of I.L.R. 12 All.). The incorrect assumption that their Lordships of the Privy Council had adopted the opinion of Sir William Macnaghten, which I nave already quoted, influenced, I believe, Judges of this Court and it certainly influenced me until quite recently. In Beni Prasad v. Hardai Bibi I.L.R. 14 All. 67, we were pressed with the argument that we were bound as a Court subordinate to the Privy Council to attach great importance to the fact that their Lordships of the Privy Council had referred to the opinion of Sir William Macnaghten and had not expressed any dissent from it. That argument induced me in that case to allow a position of higher authority to the Dattaka Mimansa of Nanda Pandita in the School of Benares than I now, on fuller consideration and after further research, believe it to be entitled to.

85. The two most celebrated translators from Sanskrit into English of works on Hindu law and the two most celebrated writers on subjects of the Hindu law in the early years of this century were Mr. Colebrooke and his nephew Mr. Sutherland. Mr. Colebrooke was Judge of Mirzapur in 1796 and was in 1801 a Judge of the Sudder Court at Calcutta. In 1796 Mr. Colebrooke published his translation of the Digest of Hindu Law, which is generally known as Colebrooke’s Digest. In 1810 Mr. Colebrooke published his translation of the Mitakshara. In Mirzapur Mr. Colebrooke was in the midst of Hindus who are subject to the School of Benares. Mr. Sutherland was in 1815 a Judge at Bhagalpur in Bengal. Bengal Proper, according to Sir William Hunter’s Imperial Gazetteer of India (see title “Bengal”) is the country which stretches south-east from Bhagalpur to the sea. As the term “Bengal” was used by Mr. Colebrooke, it did not include Mithila (Behar) or the Province of Benares. Mr. Sutherland bad prior to 1815 held various subordinate offices connected with the Courts. In 1819 Mr. Sutherland wrote his preface to his translations of the Dattaka Mimansa of Nanda Pandita and of the Dattaka Chandrika. He was then stationed at Monghyr, which is in Bengal. For some years prior to 1812 Mr. Colebrooke and Mr. Sutherland had been corresponding with Sir Thomas Strange on questions of Hindu law, and had been supplying him with references to cases on Hindu law in different Courts, with opinions of Pandits on questions of Hindu law and with their own remarks upon such opinions (see Sir Thomas Strange’s Preface to his Hindu Law and the cases, opinions and correspondence printed in the second volume of that work, edition of 1830). One of the greatest authorities in the school of the Daya Bhaga, which is the prevailing school of Hindu law in Bengal Proper, was Jagannatha Tercapanchanana. At some time between 1770 and 1796 he compiled, under the superintendence of Sir William Jones, the Digest of Hindu Law, the translation of which Mr. Colebrooke published in the latter year. According to Mr. Sutherland’s Preface of 1819 to his Translations of the Dattaka Mimansa of Nanda Pandita and of the Dattaka Chandrika, the Dattaka Chandrika was supposed to have been the groundwork of Nanda Pandita’s Dattaka Mimansa. If the Dattaka Chandrika or the Dattaka Mimansa of Nanda Pandita or their prohibition of the adoption of a sister’s son, of a daughter’s son, and of the son of a mother’s sister were accepted as of authority in Bengal Proper or in the Province of Benares, it is impossible that the fact should have been unknown to Jagannatha Tercapanchanana and to Sir William Jones when Colebrooke’s Digest was being compiled; it is also impossible that the fact should have been unknown to Mr. Colebrooke when he was translating that Digest in and prior to 1796 and when in 1810 he published his translation of the Mitakshara : and it is also impossible that the fact should have been unknown to Mr. Sutherland when in 1819 he wrote his Preface to his translations of the Dattaka Mimansa of Nanda Pandita and of the Dattaka Chandrika. I hope to show that the Dattaka Mimansa of Nanda Pandita, the Dattaka Chandrika, and this alleged prohibition of the adoption of a sister’s son, of a daughter’s son, and of the son of a mother’s sister were not recognised as authoritative by Sir William Jones and Jagannatha Tercapanchanana when Colebrooke’s Digest was being compiled; were not recognised, as being authoritative by Mr. Colebrooke when he was translating that Digest; that Mr. Colebrooke in his notes to his translation of the Mitakshara in 1810 does not refer to any such prohibition, and does not suggest that either the Dattaka Mimansa of Nanda Pandita or the Dattaka Chandrika had ever been accepted as of authority in the School of Benares; and that in his Account of the Hindu Schools of Law, which is printed at pages 315 to 319 of the first volume of Sir Thomas Strange’s Hindu Law, Edition of 1830, Mr. Colebrooke not only does not suggest that the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika were or that either of them was a work of authority in the School of Benares, but he in fact assigned them, as works of more or less authority, to another and a different school of Hindu law. I shall also show that so little was known in 1819 as to the schools of Hindu law, or the districts, in which the rules Of the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika were accepted and followed, that Mr. Sutherland in 1819, with the reserve of a judicial mind, stated, in the preface to his translations of the Dattaka Mimansa of Nanda Pandita and of the Dattaka Chandrika: “But compiled, as this work has been, under circumstances affording little facility for inquiry or collecting information, he (Mr. Sutherland) has not, from an apprehension of misleading, attempted to debar or restrict the operation of any particular rule to the limits of any particular tract of country: in fact, such precision is scarcely to be attained”–(Stokes’ Hindu Law-Books, page 528). I do not know when Sir William Macnaghten wrote his Preliminary Bemarks to his Principles and Precedents of Hindu Law; but that work was first published in 1829. I hope to show that nothing had happened between 1796 and 1829, except the publication of Mr. Sutherland’s translation of the Dattaka Mimansa of Nanda Pandita in 1821, to justify, or even to suggest that there was any foundation for, Sir William Macnaghten’s statement in his Preliminary Remarks that on questions of adoption the Dattaka Mimansa of Nanda Pandita “is held to be the infallible guide in the provinces of Mithila and Benares.” I hope further to show that at no time, the present included, would that statement have been correct in fact, or anything but erroneous and misleading.

86. The Digest of Hindu Law, which is generally known as Colebrooke’s Digest, was compiled by the learned Bengal Pandit Jagannatha Tercapanchanana at the suggestion and under the superintendence of Sir William Jones, and was translated from Sanskrit into English by Mr. Colebrooke in 1796. Mr. Colebrooke was at that time living in Mirzapur. The district of Mirzapur adjoins the district of Benares and the Hindu law of the School of Benares is the Hindu law of the Hindus of Mirzapur. We have thus got in the compiler of the Digest a Bengali Pandit of the highest repute as an authority in the School of the Daya Bhaga of Lower Bengal, i.e., Bengal Proper, on questions of Hindu law and have got in the translator of the Digest an eminent Sanskrit scholar, a diligent student of Hindu law and a writer on subjects of Hindu law, who was living within fifty miles of the City of Benares and in the midst of Hindus who were subject to the School of Benares, and we have got the fact that the Digest was compiled under the superintendence of Sir William Jones, and we know that the object of Sir William Jones was that a comprehensive Digest of Hindu Law should, on public grounds, be produced. We also know that Nanda Pandita had resided at Benares and that he had written his Dattaka Mimansa less than 200 years before the Digest was compiled. We have thus got all the conditions under which, reasonably speaking, it was practically impossible that the Dattaka Mimansa of Nanda Pandita and its prohibitions could have escaped the attention not only of Sir William Jones but of the compiler and of the translator of the Digest if that Mimansa, its doctrines and prohibitions were by the Hindus, or by the learned, in Lower Bengal or in the Province of Benares, considered as of the slightest authority in the School of the Daya Bhaga or in the School of Benares at the time when the Digest was compiled and was translated, which was the last quarter of the eighteenth century. The Digest consists of texts, upon which comments were made by the compiler. Some notes were added by Mr Colebrooke. Chapter IV of Book V of Part II of the Digest deals with the law relating to sons legitimate and adopted, as a branch of the Hindu law of succession. The Digest treats of the son given, of the age of the son to be given, of the power of parents to give away a son, of the form and ceremony of adoption, of the right of adopting a son if a nephew be living, of the right to maintenance or inheritance of adopted sons, and of various forbidden forms of adoption and of the form then permitted. In reference to the above subjects one or more texts are quoted in the Digest from Manu, Baudhayana, the Calicapurana, Gotama, Vishnu, Sancha, Lichita, Harita, Narada, Yajnawalcya, Devala and Yama. In the compiler’s comments on the text set out from those authorities reference is made to the Calicapurana and Pracasa and to Yajnawalcya, Vasishtha, Chandeswara, Manu, Vishnu, Cullucabhatta, the Retnacara, Vachaspati Misra, Raghunandana, Vachaspati Bhattacharya, and Medhatithi. If the Dattaka Mimansa of Nanda Pandita was considered to be a work of any authority in Bengal or in the districts subject to the School of Hindu law of Benares at the time when it was being compiled by Jagannatha Tercapanchanana under the supervision of Sir William Jones, or at the time when it was being translated by Mr. Colebrooke, it is most remarkable that there is not one text relating to adoption quoted from either Saunaka or Sakalya and not one single reference made to Saunaka or to Sakalya in any comment of the compiler or note of the translator relating to adoption. If at the time when the Digest was being compiled the Dattaka Mimanea of Nanda Pandita and the Dattaka Chandrika were respected all over India, and the doctrines of the Dattaka Chandrika were adhered to in Bengal and the Dattaka Mimansa of Nanda Pandita was held to be the infallible guide in the Provinces of Mithila and Benares, it is impossible to believe that neither of those commentaries should have been known to Jagannatha Tercapanchanana, to Sir William Jones, or to Mr. Colebrooke, or, if they were known to them as works of any authority in Bengal, in Mithila and in the School of Benares, that their importance, and the importance of the comments on the text of Saunaka and of the text cited as a text of Sakalya should not have been recognised by Jagannatha Tercapanchanana, by Sir William Jones, or by Mr. Colebrooke. In this connection it seems to be advisable to quote a passage from paragraph 32 of Mr. Mayne’s Hindu Law and Usage as it gives the unbiassed and judicially expressed opinion as to the qualifications of the compiler of Colebrooke’s Digest entertained by an eminent Hindu Judge, long since deceased, who was subject to the School of the Daya Bhaga and who is not now concerned with questions of adoption or with the usages’ if any, on this subject amongst the members of any caste of Hindus in Lower” Bengal. Mr. Mayne after referring to a criticism of Mr. Colebrooke upon the tendency of Jagannatha Tercapanchanana to enter upon frivolous disquisitions and to discuss the opinions of writers of different schools without distinguishing which is the received doctrine of each school or whether any of them actually prevailed at the time, says: This feature drew down non the Digest the criticism of being ‘ the best law-book for a counsel and the worst for a Judge.’ On the other hand, Mr. Justice Dwarkanath Mitter, who was of the greatest eminence as a Bengal lawyer, lately pronounced a high eulogium upon Jagannatha and his work, of whom he says: I venture to affirm that with the exception of the three leading writers of the Bengal School, namely the author of the Daya Bhaga, the author of the Dayatatwa, and the author of the Dayakrama Sangraha, the authority of Jagannatha Tercapanchanana is, so far as that school is concerned higher than that of any writer on Hindu law, living or dead, not even excluding Mr. Colebrooke himself. It certainly seems to me that Jagannatha’s work has fallen into rather undeserved odium. As a repository of ancient texts, many of which are nowhere else accessible to the English reader, it is simply invaluable. His own Commentary is marked by the minute balancing of conflicting views which is common to all Hindu lawyers. But as he always gives the names of his authorities, a very little trouble will enable the reader to ascertain to what school of law they belong. His own opinion, whenever it can be ascertained may generally be relied on as representing the orthodox view of the Bengal school.”

87. Mr. Colebrooke published his translation of the Mitakshara in 1810. In his notes to the Chapter on Adoption he referred to the views of different schools of Hindu law and to several commentaries of different schools of Hindu law, amongst others to Nanda Pandiia’s Dattaka Mimansa and his Vaijayanti on Vishnu, to the Vyavahara Mayukha of the Mahratta a School, the commentary of Vachaspati Misra which is followed by the Mithila School and to the Viramitrodaya. Neither in his preface nor in his notes to his translation of the Mitakshara does Mr. Colebrooke suggest that the Dattaka Mimansa of Nanda Pandita was of any authority whatever in the school of Benares although he refers to it in his preface as “an excellent treatise on adoption. Mr. Colebrooke draws attention to the fact that Nanda Pandita gives in his Dattaka Mimansa a different reading of one text to that given by him in his Commentary on Vishnu. Mr. Colebrooke points out that Nanda Pandita in his Dattaka Mimansa does not allow any power to a widow to adopt and that Nanda Pandita in the same Mimansa gives in adoption the preference to a nephew. It is obvious that in 1810 Mr. Colebrooke was well acquainted with the Dattaka Mimansa of Nanda Pandita, yet nowhere does he refer to that Mimansa as an authority in the School of Benares, or allude to Nanda Pandita’s prohibition of the adoption of a sister’s son, of a daughter’s son or of the son of a mother’s sister. If any such prohibition existed in the Benares School of Hindu Law in 1810. Mr. Colebrooke must have known of it and could not have failed to refer to it. Further it is obvious, to my mind, from an “Account by H.T. Colebrooke, Esq., of the Schools of Hindu Law” which is printed at pages 316 to 319 of the first volume of Sir Thomas Strange’s Hindu Law, edition of 1830, that Mr. Colebrooke did not consider the Dattaka Mimansa of Nanda Pandita or the Dattaka Chandrika as a work of authority in the School of Benares. At page 317 he said: “The School of Benares, the prevailing one in Middle India, is chiefly governed by the authority of the Mitakshara of Vyiynaneswara, a commentary on the institutes of Yajnyawalcya. It is implicitly followed in the city and province of Benares, so much so that the ordinary phraseology of references for law opinions of Pandits, from the Native Judges of Court’s established there, previous to the institution of Adawluts superintended by English Judges and Magistrates, required the Pandit, to whom the reference was addressed, “to consult the Mitakshara,” and report the exposition of the law there found, applicable to the case propounded. A host of writers might be named, belonging to this school, who expound, illustrate, and defend the Mitakshara’s interpretation of the law. It may be sufficient to indicate in this place, the, Viramitrodaya of Mitra Misra, and the Vivadatandava, and other works of Kamalacara. They do not, so far as is it at present recollected, dissent upon any material question from their great master. The Mitakshara retains much authority likewise in the south and in the west of India. But to that are added, in the peninsula, the Smriti Chandrika and other works bearing a similar title, (as Dattaka Chandrika, &c.,) compiled by Devanda Bhatta, together with the works of Madhava Acharya, and especially the commentary on Parasara, and likewise the writings of Nanda & Pandita, including his Vaijayanti and Dattaka Mimansa; and also some writers of less note.” Then follow the commentaries assigned by Mr. Colebrooke to the west of India, to the east of India, to north Behar or Mithila and to Bengal respectively, the term “Bengal” as used by Mr. Colebrooke not including Behar or Benares. If the judicial caution with which Mr. Colebrooke in his Preface to his Translation of the Daya Bhaga and the Mitakshara referred to the authority of the Smriti Chandrika of Devanda Bhatta in parts of India had been imitated by Sir William Macnaghten, when referring to the authority of the Dattaka Mimansa of Nanda Pandita and of the Dattaka Chandrika, so many English readers would not have jumped to the conclusion, without enquiry, that the Dattaka Mimansa of Nanda Pandita was an authority in the School of Benares. Devanda Bhatta and his Smriti Chandrika are not to be confounded with the author of the Dattaka Chandrika and that commentary.

88. Mr. Sutherland, who was the first translator of the Dattaka Mimansa of Nanda Pandita, stated in his Preface, dated Mongeer, 1st July 1819, to his translation: “The Dattaka Mimansa is the most celebrated work extant on the Hindu Law of adoption.” Now Mongeer (Monghyr) was the chief town and administrative head-quarters of the Monghyr district in Lower Bengal adjoining the districts of Gaya and Patna, which are centres of Hindu religion and of Hindu religious teaching. The Dattaka Mimansa was written by Nanda Pandita, who was living in Benares in the earlier part of the, 17th century, and one of the last of whose commentaries was composed in 1622. It may be assumed that, if the Dattaka Mimansa had in 1819 acquired authority in Lower Bengal and was in the Province of Benares treated as an infallible guide on questions of the Hindu law of adoption in the district of Monghyr it must have been well known who its author was, and that he and his family had been residents of Benares. Mr Sutherland in his Preface of 1819 having erroneously attributed the authorship of the Dattaka Chandrika to Devanda Bhatta, and referring to the Dattaka Chandrika and the Dattaka Mimansa, said: “Having said this much, in explanation of the selection made, the Translator would willingly annex some account of the authors, whose tracts are now presented in an English dress. With very limited opportunity, however, he has failed in ascertaining any particulars relative to them, further than that they are both writers of Southern India.” In making that statement so far as it applied to Nanda Pandita, Mr. Sutherland must have relied upon erroneous information. It is probable from paragraph 30 of Mr. Mayne’s Hindu Law and Usage that the author of the Dattaka Chandrika was a native and a writer of Lower Bengal and was not, as Mr. Sutherland had been informed, a writer of Southern India. These misconceptions may seem to some to be matters of small importance. They do not appear to me to be unimportant, when we are asked to accept Mr. Sutherland’s statement that “the Dattaka Mimansa is the most celebrated work extant on the law of adoption,” implying that it might be accepted as a standard authority at least in that part of India in which Mr. Sutherland wrote his Preface, and also implying that such information as to its author and as to its authority as Mr. Sutherland had received was reliable. I believe that the earliest reported case of adoption in which the Dattaka Mimansa of Nanda Pandita was applied was a case from Masulipatam in 1809, which I have not seen. It is not improbable that its application in that case, and the fact that it propounded rules which had not theretofore been suggested, may have brought it into sufficient prominence amongst the lawyers of Madras as to lead Mr. Sutherland and those upon whose information he relied to the conclusion that Nanda Pandita was a writer of Southern India.

89. As indicating Mr. Sutherland’s views of the application of the Dattaka Mimansa in different districts and its recognition as an authority by the various schools of Hindu law the following passage which I quote from his Preface of 1819 is of importance. He writes: “In regard to the law of inheritance, important distinctions obtain in the doctrines of the Gaura or Bengal and other schools of law–and this difference has given rise to controversial writing and various tracts, professedly treating on that branch of judicature, as received in the different schools respectively. But the case is not the same in regard to the law of adoption. Some difference of opinion may be indeed observed amongst the individual writers on the subject, but it does not appear that any set of dogmas has been espoused or opposed, as the peculiar doctrine of any particular school. The points on which any difference of opinion obtains are noted in the Synopsis, and the translator has in some instances intimated, what appears to him, the more correct and prevailing doctrine. But compiled, as this work has been, under circumstances affording little facility for enquiry or collecting information, he has not, from an apprehension of misleading, attempted to debar or restrict the operation of any particular rule to the limits of any peculiar tract of country. In fact, such precision is scarcely to be attained.” We have the fact that in 1819 Mr. Sutherland did not venture to suggest that on such information as was at his disposal and after such enquiries as he had been able to make, the Dattaka Mimansa of Nanda Pandita or any of its peculiar views were accepted or in force in the province of Benares, in the school of Benares or in any district in which Hindus dwelt who were subject to the Benares School. Yet only ten years later, that is to say in 1829, Sir William Maonaghten wrote that the Dattaka Mi a ansa of Nanda Pandita was accepted as the infallible guide QB questions of adoption in the Province of Benares. What had happened in the. meantime, that is between 1819 and 1829, to cause the Dattaka Mimansa of Nanda Pandita to be accepted by the Hindus subject to the School of Benares as their infallible guide on subjects of adoption? Absolutely nothing had happened except that Mr. Sutherland’s translation from Sanskrit into English of the Dattaka MinJansa of Nanda Pandita had been published in 1821. How many Hindus of the millions subject to the School of Benares knew in 1821 to 1829 enough English to enable them to read and understand Mr. Sutherland’s translation? Probably not twenty. The acceptance by Hindus of the views of a commentator and the adapting of their usages to such views are not the work of a day, or of ten years or of twenty. Although usages amongst Hindus vary, and vary materially even in adjoining districts, Hindus are essentially conservative as to their usages, and usages, although they differ, are in most cases the growth of centuries amongst them More than seventy years have elapsed since Mr. Sutherland’s translation of the Dattaka Mimansa was published, and nearly three hundred years have elapsed since that Mimansa was written, and yet on several vital questions of the law of adoption the usages of Hindus subject to the School of Benares remain directly in conflict with the rules of that Mimansa; but we are asked to assume, without one particle of evidence to support the assumption, that on this particular question of adoption, with which we are concerned, the Hindus of the School of Benares have accepted, and submitted to, the rule of Nanda Pandita, and have, adopted the usages, which it is said, on the authority of a statement of a gentleman of Calcutta made in some private correspondence which has taken place in reference to this case, but which neither the parties, their legal advisers, nor the Judges of this Bench who are of the majority on this question of adoption have seen, prevail amongst certain classes of Hindus of the Daya Bhaga School of Lower Bengal. I merely point out that if the gentleman in question had been desirous of influencing this Court by a statement as to a fact he should, as he must well have known, have appeared in the witness box to give his evidence. It is hardly necessary to say that the laws and usages of the School of the Daya Bhaga are, as judicial decisions have shown, essentially different on many subjects to the laws and usages of the School of Benares. Mr. Colebrooke, referring to some critic, said, in a note printed at page 320 of the first Volume of Sir Thomas Strange’s Hindu Law, edition of 1830, “Can he be ignorant, too, that the Hindu name comprises various nations differing in language and in manners, as much as the various nations of Christian Europe? It is no more to be wondered, that the law should be different in Bengal and Benares, than that it is so in Germany and Spain.” See also on this subject of races, Sir John Strachey’s “India,” and Sir Alfred Lyall’s “Asiatic Studies.”.

90. In an earlier part of the Preface Mr. Sutherland said: “The Dattaka Mimansa, as its name denotes, is an argumentative treatise, or disquisition, on the subject of adoption; and though, from the author’s extravagant affectation of logic the work is always tedious, and his arguments often weak and superfluous, and though the style is frequently obscure, and not unrarely inaccurate, it is, on the whole, compiled with ability and minute attention to the subject, and seems not Unworthy of the celebrity which it has attained.”

91. It appears to me that a valuable means of testing the authority allowed to the Dattaka Mimansa of Nanda Pandita before it had been translated in 1819 by Mr. Sutherland and of testing the accuracy of Mr. Sutherland’s views and of those who followed his lead as to the importance in the Hindu community of that commentary may be afforded by ascertaining how far its precepts were recognised and followed by Courts in the Provinces of the Presidency of Fort William in Bengal before it was translated in 1819 and after it had been in existence for nearly two centuries. The materials for such a test are few, but some exist. It has never been suggested that Sudras were at any time prohibited from adopting a sister’s son or a daughter’s; son. On the contrary, it has by some writers been maintained, I think erroneously, that amongst Sudras the first object of adoption was the sister’s or the daughter’s son in preference to all others. Similarly it was maintained, but erroneously, by some writers, including Nanda Pandita, that amongst Brahmans when there was a brother’s son eligible for adoption the adoption of anyone else would be invalid. Bearing in mind that no text and no author had ever suggested that it was not lawful for a Sudra to adopt a sister son, or a daughter’s son, it may reasonably be assumed that in the case to which I shall now refer the parties belonged to one of the three regenerate classes, for otherwise the reference to the Pandits of the question of adoption was unnecessary. In case XII at pages 185, 186′ and 187 of Volume II of Macnaghten’s Principles and Precedents of Hindu Law one of the questions asked of the Pandits was whether E having adopted his daughter’s son and having died, the adopted son was entitled to succeed to E’s property? The answer was: “If, of the separated brothers, the youngest, having taken his daughter’s son in adoption, died, such adopted son is alone entitled to the property to which the deceased was entitled.” That case arose in 1808 in zilla Mirzapur in which the Benares School of Hindu Law is supreme. It appears, from cases numbered 58 and 59 at page 18 of Volume I of Morley’s Digest of Cases reported in the Supreme Courts of Judicature in India, that in 1810 an adoption by a Brahman of his sister’s son was held to be valid, whilst in 1815 it was held that a Brahman could not adopt his sister’s son as it imported incest. As in case number 61 at page 19 of the same Digest it is stated that the form of adoption in that case was the Kritrima form, I think it may be safely inferred that the form of adoption in cases numbers 58 and 59 on page 18 was the Dattaka form. I mention the above cases here as showing that prior to the translation in 1819 by Mr. Sutherland of the Dattaka Mimansa the prohibition of the Dattaka Mimansa of Nanda Pandita was not acted upon by the Courts in Bengal in two out of the three cases of which any report has survived, and in which the adoptions would necessarily have been held to have been invalid if at that time the -Dattaka Mimansa was adhered to in Bengal.

92. It will be remembered that Mr. Sutherland when writing in Bengal his Preface to his transaltions of the Dattaka Mimansa and of the Dattaka. Chandrika in 1819 had made inquiries as to who the authors were, and that obviously the only information which be had been able to obtain in Bengal on that point was that the authors were writers of Southern India, the fair inference being that in the opinion of his informants those commentaries were of more authority in Southern India than in Bengal or in Benares. Sir Thomas Strange in a note on a case of 1806 from the zilla of Cuddapah, having referred to the Dattaka Mimansa of Nanda Papdita and to two local commentaries of apparently not much authority, said: “In practice the adoption of a sister’s son by persons of all castes is not uncommon, the authority above quoted resting as it does on a single text, and that not pointedly prohibitory, cannot be considered sufficient to vitiate such adoptions,” see Sir Thomas Strange’s Hindu Law, edition of 1830, Volume II, pages 100 and 101. It was stated by Holloway, J. in Narasammal v. Balaramacharlu 1 Mad. H.C. Rep. 420, that the note to which I have just referred was by Mr. Ellis. Sir Thomas Strange in his Preface to the first edition of his Hindu” Law stated that he had distinguished the Remarks in the Appendix by the letters C.E. and Section as denoting respectively the names of Mr. Colebrooke, Mr. Ellis and Mr. Sutherland. As in the only edition of Sir Thomas Strange’s Hindu Law, viz., that of 1830, which contains the Appendix and to which I have access, no initial C.E. or S. is appended to the note to which I have referred, I have assumed that the note was by Sir Thomas Strange himself.

93. I am aware that some Pandits have cited the Dattaka Mimansa of Nanda Pandita in some cases relating to adoptions amongst Hindus of the Benares School, and it has been contended that from that fact I should infer that the Dattaka Mimansa was received in the School of Benares as an authority to be followed on all questions of adoption, including that which is before us. As a Judge, I am unable to adopt that argument. I do not know and have no information as to the school of Hindu law to which those Pandits belonged. In the Eastern Districts such as Gorakhpur it is as likely as not that such Pandits belonged to, or were influenced by the School of Hindu law of Lower Bengal, which follows the Daya Bhaga. I am, however, aware that the Pandits in those cases did not agree. I cannot overlook the fact that in Sir William Macnaghten’s opinion the venality of Pandits has done more than the speculations of commentators to create confusion in the Hindu law, and that according to his experience Pandits may cite authorities which are genuine and applicable to the particular subject, ” but which are of no weight in the particular province whose doctrine should have been adopted.” An instance of the truth of that warning was afforded by the Court Pandit of the Provincial Court of Bareilly, in a case to which I shall refer later on, who stated that the Vyavahara Mayukha was in force in the district of Etawah; that statement can only be explained on the ground of the gross ignorance or the shameless mendacity of the Pandit who made it. For all I know other Pandits equally ignorant or equally regardless of the truth may have followed him; if they did, and their statements can be unearthed, we may expect some day to hear it vigorously argued in this Court that the Vyavahara Mayukha is the authority to be followed in deciding disputed questions between Hindus of the Benares School. Referring to the Court Pandits of Madras of the latter part of the last and the early part of the present century, Sir Thorns Strange, at pages xxi and xxii of the preface to the first edition of his Hindu Law, said: “For, with regard to the Pandits, considering the infancy of the judicial establishment provided for the dependencies on the Madras Government at the time when the collection was made, the authority of many cannot be looked upon as very great. The most competent (it may be presumed) were appointed. But in that part of India, and at the time in question, little if any encouragement having been begun to be given to the cultivation of learning among the natives, the field for selection could not be ample. Allowance is also to be made for the possibility of corruption in particular instances, remembering always the declaration of Sir William Jones, ‘ that he could not, with an easy conscience, concur in a decision merely on the written opinion of native lawyers in any case in which they could have the remotest interest in misleading the Court. “I shall now quote two of the passages relating. to Pandits to be found in Sir Francis Macnaghten’s Preface to his Considerations on the Hindu Law. At page x, Sir Francis Macnaghten said: A majority of the Pandits who have delivered their rescripts declare that the adopted son shall succeed to the estate of his adopting father’s father; and they are apparently supported by the most rational construction; yet from the zilla of Saharanpur it is answered that the adopted son is excluded from inheritance by the Mitakshara and all other authorities.” The following passage from page xii of Sir Francis Macnaghten’s Preface, carefully read, is probably more condemnatory of Pandits than is anything else which he wrote. He said: “I disclaim all intention of casting a reflection upon our present Supreme Court Pandits. I have had much conversation with them both, and I believe them to be in all respects better qualified than such men usually are for their offices. Yet it has often been observed that opinions delivered in a particular cause varied from those which had been obtained upon former occasions; and I persuaded myself that it would be more satisfactory at least to ascertain their sentiments at a time when they could not be biassed by favour or by any feelings connected with the parties to an existing litigation.” None of us on this Bench, so far as I am aware, either know or have the means of ascertaining what were the characters of the Pandits who, in cases relating to Hindus of the Benares School, cited the Dattaka Mimansa of Nanda Pandita as an authority. Of course it is possible, but hardly probable, that local Pandits in outlying districts of these provinces like Gorakhpur were more learned and more honest than the Pandits of the Provincial Court of Bareilly, than the Pandits of Saharanpur and the other Pandits to whom Sir Francis Macnaghten referred, or than the Pandits who were condemned by Sir William Macnaghten, Sir Thomas Strange and Sir William Jones. I feel that in a case of this importance to the Hindus of the Benares Sohool, in which, if we make assumptions, which are not justified, as to the authority of Nanda Pandita in that school, there is grave risk of our imposing upon the Hindus of the Benares School a custom which may or may not exist amongst the Hindus of Lower Bengal who follow the Daya Bhaga, and which may never have existed in these provinces. I cannot, as a Judge, draw from the fact that in some few cases relating to the Benares School some Pandits, of whose characters I know nothing, cited the Dattaka Mimansa of Nanda Pandita, the conclusion that Nanda Pandita had been received as an authority by the School of Benares.

94. If we were, from the fact that Pandits in former years cited in Courts in these provinces certain commentaries in support of their statements, to conclude that the commentaries so cited had been accepted by the School of Benares as authoritative interpretations of the law, confusion would be worse confounded and we should be deciding questions between Hindus of the Benares School, not by the Hindu law of that school, but by what commentators of another school said, erroneously or otherwise, was the law.

95. It is said that the following eight commentaries support the opinions on this subject of Nanda Pandita, namely, the Samskarakaustubha, the Dharmasindhu, the Dattaka Nirnaya, the Dattaka Kaumudi, the Dattaka Darpana, the Dattaka Didhiti, the Dattaka Manjari, and the Dattaka Ciromani. Some of those commentaries are by writers of the School of the Daya Bhaga of Lower Bengal, some by writers of the Mahratha School of the Bombay Presidency, one was, I believe, by a writer of the Mithila School; as to the remainder I do not know of what part of India the writers were, but they were not of these Provinces, or of the School of Benares. All of them were, so far as I can ascertain, subsequent in date to the Dattaka Mimansa of Nanda Pandita. Not one of them was referred to by any one during the hearing of this case. The learned vakil who argued this case on behalf of the defendant had no opportunity of addressing us on any of those commentaries, or as to the authority, if any, which may be allowed to them in the Schools of Hindu tow to which their authors belonged. My attention was first drawn to them by a member of this Bench more than a week after the arguments had been concluded and after the case had stood over for judgment. Only three of those commentaries have, in the nine years during which I have been on this Bench, been cited before me in any case, so far as I remember or can ascertain, and then they were not cited as authorities of the Benares School. They were cited as showing the interpretation put upon an ancient text by writers of another school of Hindu law. Of those eight commentaries the following were in one case–Tulsi Ram v. Behari Lal I.L.R. 12 All. 328,–cited before me, the Samskarakaustubha, the Dattaka Darpana, and the Dattaka Nirnaya. I am not aware that any other Judge on this Bench is in a position to say that any one of those eight commentaries has ever been cited before him as of any authority in the School of Benares, or has in fact ever been cited before him in this Court for any purpose. I am not aware if the text, verified or unverified, of any of those eight commentaries is to be found Within these provinces. There is not one Judge upon this Bench who is a Sanskrit scholar capable of translating those texts, or of ascertaining the context, or what those text in fact say, except my brother Knox. No one on behalf of the defendant, whose interests are at stake here, has had an opportunity of having the texts of those commentaries examined. Under such circumstances I would not venture to allude to them if I did not understand that, in the opinion of one, or possibly two, of the Judges of this Bench, the, fact that on the question of adoption before us those eight commentaries of authors of other schools of Hindu law are more or less in harmony with the Views of Nanda Pandita, affords a convincing argument that the Dattaka Mimansa of Nanda Pandita is on this question before us the law and the doctrine of the School of Benares. Under such circumstances I must deal with those commentaries as best I can on such scanty materials as are afforded to us by references to them on this subject which I find in the writings of Mr. Mandlik, Golap Chandra Sarkar and Dr. Jolly. The Samskarakaustubha gives a different version of the text of Saunaka to that given in the Dattaka Mimansa of Nanda Pandita; it omits that portion of the text which has been translated by Mr. Sutherland thus: “For the three superior tribes, a sister’s son is nowhere [mentioned as] a son.” (See Mr. Mandlik’s Yyavahara Mayukha at page 489). The Dharmasindhu cites the text of Saunaka without referring it to any author. (Mr. Mandlik’s Yyavahara Mayukha, page 489). The Dattaka Nirnaya cites the text of Saunaka as a text of Narada (Mr. Mandlik’s Vyavahara Mayukha, page 489). It appears that the authors of those three commentaries consider that the text of Saunaka, to which I shall refer at length later on, prohibits the adoption of a daughter’s son and of a sister’s son, and that by those authors “the prohibition is placed on a par with the prohibition as to the giving of the eldest son, and the rule laying down the order of eligible adoptees, both of which have been on all hands admitted to be directory.” (Mr. Mandlik’s Vyavahara Mayukha, pages 488 and 489). Their Lordships of the Privy Council in Srimati Uma Deyi v. Cokoolanand Das Mahapatra L.R. 5 I.A. 40, held that according to Hindu law as it obtains in Benares the adoption of a very distant relation, not included within the sapindas of the adoptive father, made in violation of the preferential right of the son of a brother of the whole blood, was valid, and that the texts which prescribe the preferential adoption of such a son have not the force of law. The texts and the principal authority, which were relied upon in that case as prohibiting the adoption of the distant relation were texts of the Dattaka Chandrika, texts of the Dattaka Mimansa of Nanda Pandita, and Mr. Sutherland’s Synopsis. In Janokee Debea v. Gopaul Acharjee I.L.R. 2 Cal. 365, it was held that the adoption of the first-born son though blame able was valid in law. The Dattaka Kaumudi appears to be merely an echo of the Dattaka Mimansa of Nanda Pandita. The Dattaka Darpana excludes the sister’s son and the daughter’s son from the category of objects of adoption, but apparently says nothing about the son of a mother’s sister. The Dattaka Didhiti reads the text of Saunaka differently to Nanda Pandita; it says that a daughter’s son and a sister’s son should be adopted by Sudras, but it does not say anything about their affiliation by the three regenerate classes, and apparently does not refer at all to the son of a mother’s sister. The Dattaka Manjari says: “Amongst Brahmanas the daughter’s and the sister’s son-are excepted, since they are unfit for being looked upon as sons; and for the same reason the paternal uncle and the like are excluded.” I have gathered what I have stated as to the Dattaka Raumudi, the Dattaka Darpana,” the Dattaka Didhiti, and the Dattaka Manjari from page 327 of Golap Chandra Sarkar’s Hindu Law. of Adoption. According to Dr. Jolly in the Appendix to his Outlines of an History of the Hindu Law the Datts Ciromani is an epitome of seven treatise on, adoption. Dr. Jolly gives translations of the portions epitomised as they appear in the Dattaka Ciromani, but does not give translations of the passages quoted from the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika, as those, works were accessible in an English form. The value of the treatises epitomised on any question relating to the Hindu law of the School of Benares may be gathered from the following facts, assuming that’, the treatises were correctly epitomised in the Dattaka Ciromani, which may be doubted from the short epitomes on this particular question of adoption given by Golap Chandra Sarkar at page 327 of his Hindu Law of Adoption. According to the epitomes of the Dattaka Ciromani, the Dattaka Darpana allows the widow of a separated Hindu to adopt a son to her husband without having authority from her husband to adopt; the Dattaka Kaumudi permits the adoption of a son whilst another son is living from a desire to have many’ sons; the Dattaka Didhiti apparently expressed the same opinion and further” stated that several men together could adopt; the same son; the Dattaka Tiloka says that many sons may be adopted by the same man provided they are all adopted at the same time, and even a married man is fit to be adopted. Much more might be written on the same point. The treatises epitomised may, so far as I am concerned in this case, correctly state the law of adoption of the School of the Daya Bhaga, and I assume from nearly all those commentaries being relied upon by one of my Brother Judges that he considers that they are authorities accepted by some School of Hindu Law, but they certainly could not be, nor are they, accepted as authorities in the School of Benares, and it may be assumed that some of them would be repudiated as authorities by the Hindus of Mithila. The result is that in six out of those eight commentaries no mention is made of the adoption of a mother’s sister’s son, and in one of them there is no prohibition against the adoption amongst the three regenerate classes of a sister’s son, of a daughter’s son or of the son of a mother’s sister. The texts of the Dattaka Chandrika and of the Dattaka Mimansa of Nanda Pandita which were adopted as. prohibitory in three of those eight commentaries have on one subject been held not to have the force of law in the School of Benares by their Lordships of the Privy Council, and on another subject have been held by the High Court at Calcutta not to be prohibitive. Neither separately nor collectively do those eight commentaries of authors of other Schools of Hindu law furnish in my opinion the slightest ground for assuming that on the question before us the Dattaka Mimansa of Nanda Pandita has ever been accepted as, or ever was, the law of the School of Benares, nor do they suggest to my mind that the interpretation put by Nanda Pandita on the text on this subject cited in his Dattaka Mimansa was correct. That some eight or more commentators, of whose authority, reputation and accuracy of thought we know nothing, followed the lead, more or less closely, of the Dattaka Chandrika or of the Dattaka Mimansa of Nanda Pandita does not prove that Nanda Pandita correctly interpreted the text of Saunaka, It does not appear from the information before us whether any of these commentators accepted the text cited as a text of Sakalya. One solitary native commentator, who I believe was subject to the School of Benares, has followed the lead of the Dattaka Mimansa of Nanda Pandita. That commentator was the parda-nashin lady who resided in Benares and wrote under the name of Balambhatta. I say, without fear of contradiction in this Court, that she is not received as an authority by the School of Benares. Prima facie it would be improbable that the School of Benares, which has produced celebrated scholars and expounders of the Hindu law, should accept as an authority a lady of quite modern times, whose knowledge of the law and of the usages of Hindus in these provinces was confined to such knowledge as she was in a position to acquire when sitting behind the parda in her husband’s house.

96. The three regenerate classes of Hindus of the School of Benares have not hitherto acknowledged that they are bound to accept the usages, or to follow the interpretation of the Hindu law, of those who belong to the School which follows the Daya Bhaga. We, as Judges of this Court, sit here in this case to apply the Hindu law and usages of the School of Benares and not the Hindu law and usages of the School of Lower Bengal or of elsewhere. Under such circumstances it appears to me to be our duty to be particularly careful that we do not impose by our decision upon the three regenerate classes of Hindus in these provinces a prohibition and a religious dogma not to be found in the Hindu law of the School to which they are subject, a prohibition which may have originated in an erroneous view of the law taken by two commentators of quite modern times, which may have been followed, more or less closely, by writers who did not belong to the School of Benares, and which was supposed to apply in the Benares School of Hindu law by those who, without sufficient enquiry, accepted as correct the views of those two commentators and the views of their translator.

97. The result of much careful enquiry into the authority to be allowed to the Dattaka Mimansa of Nanda Pandita has led me to agree with that eminent Sanskrit scholar, Professor Jolly, that: “It is simply a misfortune that so much authority should have been attributed in the Courts all over India to such a treatise as Nanda Pandita’s Mimansa, which abounds more in fanciful distinctions than, perhaps, any other work on adoption, and it is high time that the numerous other Treatises on Adoption should be thoroughly examined and given their due weight. Even hitherto, in spite of the pressure exercised by the authority of Nanda Pandita, the prevailing tendency of decisions has been in favour of divesting adoption of arbitrary restrictions, which have no foundation in equity or justice” (Professor Jolly’s Outlines of an History of the Hindu Law, page 166). I am convinced that down to 1830 the Dattaka Mimansa of Nanda Pandita had not been accepted as an authority in the School of Benares. Since 1830 that Mimansa has occasionally been referred to in the Sudder Dewani Adalat of these Provinces and in this Court on various questions of adoption, but has not been followed when its rules were in conflict with the Mitakshara or with other authoritative works of the Benares School, except in three cases, to which I shall refer at length later on, in none of which did the Judges enquire whether or not its rules had been accepted by the School of Benares. In the first of those cases a native Munsif-found the adoption proved and valid; the District Judge expressed no opinion about the adoption and decided the case on another point; the Judges of the Sudder Dewani Adalat decided, on the sols authority of Mr. Sutherland’s statement, that the adoption was invalid, notwithstanding that the evidence which the Judges accepted as correct, showed that in the opinion of the caste the adoption was valid. In the second case all three Courts held that the adoption was invalid, applying Nanda Pandita’s prohibition against the adoption of a sister’s son: the curious points about that case are that the question was irrelevant, as the widow had not received authority from her husband to adopt as was found, and the prohibition of Nanda Pandita, although applied, was in fact misapplied, as the boy who was adopted by the widow to her husband was her brother’s son and was not a son of a sister of the widow’s late husband, and the adoption if it had been with authority would have been valid. In the third case the question of adoption was irrelevant; the curicus point in connection with that case is that the parties to that case were parties to subsequent litigation in which it was by evidence proved beyond doubt that the particular adoption of a sister’a son by a Brahman was valid, and was in accordance with usage amongst that division of the Brahman tribe.

98. It must never be overlooked for one moment that Nanda Pandita’s sole position in the Hindu law is that simply of a commentator and that he had no power to impose of his own accord burdens and restrictions on the Hindus in the exercise of the right of adoption. His Dattaka Mimansa must be judged as any other commentary would be. I think I succeeded in showing in my judgment in Beni Prasad v. Hardai Bibi I.L.R. 14 All. 67, that Nanda Pandita in construing a material text of Vasishtha ignored the principles of the construction of texts of the Hindu sacred law as prescribed in the Mimansa of Jaimini, and by violating those principles of construction put a construction upon that text which had not been adopted by the much more celebrated author of the Mitakshara.

99. Nanda Pandita in the Dattaka Mimansa asserts that amongst the three regenerate classes an adoption of a daughter’s son, of a sister’s son, and of a son of a sister of the mother of the adopter is prohibited. He draws that conclusion from two passages which he quotes from a text of Saunaka, and from a passage which he gives as a text of Sakalya; one passage from Saunaka (Caunaka) is given partly in paragraph 2 of Section II; page 547 of Mr. Sutherland’s translation of the Dattaka Mimansa in Stokes’ Hindu Law Books and partly in paragraph 74 of the same section at’ pages 563 and 564. It may be mentioned that the Dattaka Mimansa was written in prose and was not in the original divided into sections or paragraphs and was not punctuated. The system adopted in the Dattaka Mimansa was that a portion of a text was given and on it followed Nanda Pandita’s comments, and then a further portion of the text was given followed by comments upon it. The text of Saunaka as given in paragraphs 2 and 74 of Section II of the translation is as follows: “The adoption of a son, by any Brahmana, must be made from amongst ‘sapindas’ or kinsmen connected by an oblation of food; or, on failure of these an ‘asapinda,’ or one not so connected, may be adopted; otherwise let him not adopt. Of Kshatriyas, in their own class positively: and [on default of a sapinda kinsman] even in the general family, following in the same primitive spiritual guide (Guru): of Vaicyas, from amongst those of the Vaicya class (Vaicyajateshu); of Cudras, from amongst those of the Cudra class. Of all, and the tribes likewise, [in their own] classes only: and not otherwise. But a daughter’s son and a sister’s son are affiliated by Cudras. For the three superior tribes, a sister’s son is nowhere [mentioned as] a son.” One version of this part of the text of Saunaka is thus translated by Golap Chandra Sarkar at page 309 of his Hindu Law of Adoption: “Amongst Brahmanas, the affiliation of a son should be made (Kartarvyah) from amongst sapindas; or on failure of them a non-sapinda (may be affiliated); but any other should not be affiliated; amongst Kshatriyas, one from their own tribe, or one whose Gotra is the same as that of the adopter’s guru or preceptor (may be affiliated): amongst Vaisyas from amongst those of the Vaisya tribe; amongst Sudras from amongst those of the Sudra tribe; amongst all classes, from their respective classes, not from others. A daughter’s son or a sister’s son is, however, affiliated by Sudras; amongst the three (tribes) beginning with the Brahmana, a sister’s son is not affiliated somewhere (or anywhere).” A translation of a version of this part of the text of Saunaka is given by Mr. Mandlik at page 53 of his Vyavahara Mayukha thus: “Amongst Brahmanas, the adoption of a son should be made from amongst the sapindas, or in their absence, an asapinda [one not a sapinda] may be adopted, otherwise one should not be adopted; amongst Kshatriyas, one from their own class, or one whose Gotra is the same as that of the (adopter’s) preceptor may be adopted; amongst Vaisyas, from amongst those of the Vaisya class; amongst Sudras, from amongst the Sudra class; amongst all classes, from amongst their respective classes only, not from others. But a daughter’s son and sister’s son are affiliated even by Sudras.” I infer from a passage at pages 489 and 490 of his Vyavahara Mayukha that Mr. Mandlik obtained the text, his translation of, which I have quoted, from the text as given in the Vyavahara Mayukha. Mr. Mandlik, commenting at page 494 of his Vyavahara Mayukha on the latter part of the text of Saunaka as given in the Dattaka Mimansa of Nanda Pandita gives what he vouches as his own and as accrete translation of that part of the text, as it appears in the Dattaka Mimansa, thus: “Sudras (should) adopt a daughter’s son or a sister’s son. A sister’s son is in some places (not adopted as) a son among the three (classes beginning) with a Brahmana.” It would appear from Dr. Buhler’s article on the Gaunaka Smriti in the Journal of the Asiatic Society of Bengal for 1866, at page 159, that there were known to him at least five different Sanskrit versions of that part of the text of Saunaka which, as given in the Dattaka Mimansa of Nanda Pandita, Mr. Sutherland has translated as “But a daughter’s, and a sister’s son, are affiliated by Sudras,” and that Dr. Buhler was not aware of any version of Saunaka’s text, except that given by Nanda Pandita in his Dattaka Mimansa, in which the words which Mr. Sutherland has translated as “For the three superior tribes a sister’s son is nowhere [mentioned as] a son ” appear.

100. Mr. Mandlik, at pages 489 and 490 of the Vyavahara Mayukha, says in reference to this latter subject: “This verse although found in the manuscript copy of Saunaka Karikas in my library, does not occur in that copy of Karikas which was available to Dr. Buhler. Nor does it occur in the extract of the adoption chapter of the Karikas made in the Samskarakaustubha, and in the Vyavahara Mayukha. These extracts correspond with the manuscript of Dr. Buhler. On the other hand, the Dattaka Mimansa, the Dattaka Chandrika, and my own manuscript of Saunaka Karikas do give the said text. I am, therefore, inclined to hold with Dr. Buhler that there were two versions of the chapter of Saunaka, the one Maharastra as he calls it, and the other the Gauda or Eastern.” Those facts, if there was nothing else, ought to make a Judge cautious in accepting blindly, and without careful judicial consideration, the texts given by Nanda Pandita in his Dattaka Mimansa and his comments upon them. Dr. Buhler was of opinion that it was from the Saunaka Karikas that Nanda Pandita quoted in his Dattaka Mimansa (See Journal of the Asiatic Society for 1866 at page 150). Commenting on the latter ‘part of that text of Saunaka as given by him Nanda Pandita, according to the translation given by Mr. Sutherland of paragraphs 91, 92, 93, and 94 of Section II of the Dattaka Mimansa, (Stokes’ Hindu Law Books, page 567) said:

91. This part of the text, ‘but a daughter’s son, &c.’ propounds an exception, as to those of the three first tribes, with respect to the daughter’s son, and sister’s son, inferred from the mention of propinquity in the general.

92. Since (the particle ‘but’ having an exclusive import) a restriction ‘by Cudras only,’ is conveyed; those of the three first tribes are excluded. On this point the author subjoins a reason: ‘For the three superior tribes, &c, &c.’

93. Since the filial relation of a sister’s son to one of the three first tribes, is not exhibited in any authority whatever, the passage is relative only to Cudras. This is the meaning of the whole.

94. The expression, ‘a sister’s son’ is of indefinite import, in the (part subjoined as a) reason; for, (otherwise) it would follow, that it were therein an unmeaning term: or, were it of definite import, one portion (of the preceding sentence, viz., ‘a daughter’s son’) would be void of sense.”

101. I confess I find it difficult to make sense out of those paragraphs and the paragraphs which follow them. It appears to me that what Nanda Pandita was trying to demonstrate was that the sentence in Saunaka’s text which Mr. Sutherland has translated as;–“For the three superior tribes, a sister’s son, is nowhere (mentioned as) a son ” was a reason given for the immediately preceding sentence of the text;–“But a daughter’s son, and a sister’s son, are affiliated by Sudras, ” and that reading the two sentences together Saunaka had, in the opinion of Nanda Pandita, expressly prohibited the adoption amongst the three regenerate classes of a daughter’s son and a sister’s son. Assuming for the moment that Nanda Pandita was correct in construing the sentence;–” For the three superior tribes, a sister’s son, is nowhere (mentioned as) a son” as the reason for the statement contained in the immediately preceding sentence of Saunaka’s text, and applying the rule of construction of the Mimansa of Jaimini, which is to be applied to the ancient Sanskrit text of the sacred Hindu law, the two sentences together must he deemed to contain on admonition only, and not a positive prohibition, against the adoption amongst the three regenerate classes of a sister’s son and of a daughter’s son. The rule of the Mimansa of Jaimini is thus stated by Mr. Mandlik at page 499 of the Vyavahara Mayukha: “It is a rule of the Purva Mimansa that all texts supported by the assigning of a reason are to be deemed not as Vidhi but simply as Artha-vada (recommendatory). When a text is treated as an Artha-vada, it follows that it has no obligatory force whatever.” I have shown in my judgment in Beni Prasad v. Hardai Bibi I.L.R. 14 All. at pp. 70 et seqq., that the rules of the Mimansa of Jaimini, although they may sometimes have been overlooked or not attended to by Hindu as well as English commentators and text writers, and by English translators, are no new rules of construction but are authoritative rules for the construction of texts of the sacred law of the Hindus. The Mimansa of Jaimini is older by many centuries than the Dattaka Mimansa of Nanda Pandita. Its authority is undoubted. It has been applied by, amongst others, Jagannatha Tercapanchanana, who compiled Colebrooke’s Digest, and is referred to in the notes in that digest. This is what was stated by Mr. Colebrooke as to the Mimansa of Jaimini: “The written law, whether it be Sruti or Smriti, direct revelation or tradition, is subject to the same rules of interpretation. Those rules are collected in the Mimansa, which is a disquisition on proof and authority of precepts. It is considered as a branch of philosophy; and is properly the logic of the law, In the eastern, part of India, viz., Bengal and Behar, where the Vedas are less read, and the Mimansa less studied than in the south, the dialectic philosophy, or Nyaya, is more consulted and is there relied on for rules of reasoning and interpretation upon questions of law, as well as upon metaphysical topics.” See Account by H. T. Colebrooke, Esq., of the Hindu Schools of law in Sir Thomas Strange’S Hindu Law, Volume I, page 315, edition of 1830. See also Mr. Colebrooke on the Mimansa of Jaimini, in the transactions of the Asiatic Society, Volume I, page 457. That Mr. Colebrooke in the above extract was when referring to “Bengal” applying that term, not loosely, but strictly according to its true and original meaning of the country stretching south-east from Bhagalpur to the sea, and was not including in that term Behar or the province of Benares is obvious from the reference in that extract to “Bengal and Behar ” and from the following passage, relating to authorities in the different Schools of Hindu Law, in the same Account: “To these are added, in Bengal, the works of Jimuta Vahana and those of Raghunandana, and several others, constituting a distinct school of law, which deviates on many questions from that of Mithila, and still more from those of Benares, and the Dekhin, or southern peninsula.” I have shown in my Judgment in Bent Prasad v. Hardai Bibi I.L.R. 14 All. 67, that the author of the Mitakshara had construed a text of Vasishtha in accordance with the rules of the Mimansa of Jaimini, and that the construction of that same text in the Dattaka Mimansa of Nanda Pandita was in violation of those rules. The truth is, Nanda Pandita followed no rule of construction, but construed ancient texts as it suited his fancy, or his argument.

102. The reference to a daughter’s son and a sister’s son in the text of Saunaka if that text is correctly given by Nanda Paudita, appears to me to be simply a statement of what Saunaka considered to be a fact, namely, that in his time amongst Sudras a sister’s son and a daughter’s son were sons who were adopted by Sudras and that in the ancient texts of the Hindu law it had not been mentioned that a sister’s son might be adopted amongst the three regenerate classes, a very different thing from saying that the adoption of a sister’s son was prohibited. It appears to me that Saunaka did not intend to represent that the adoption amongst the three regenerate classes of a sister’s son or of a daughter’s son was positively prohibited. Some writers have taken a third and a different view of the meaning of that text of Saunaka, and have contended that it means that amongst Sudras a sister’s son and a daughter’s son must be adopted in preference to others, Saunaka’s statement may have been intended to represent that in his days, and in some part of India, so far as he knew, it was not the custom amongst the three regenerate classes to adopt a sister’s son or a daughter’s son, but it did not in my opinion imply a prohibition. I am led to that conclusion by each of the translations of the text which I have quoted. I also come to the same conclusion from the fact that no such prohibition against the adoption of a daughter’s son or of a sister’s son is even suggested in the laws of Manu, Vasishtha or in the Mitakshara, whilst Yama, who undoubtedly was a Riahi of great importance in the Hindu sacred law, distinctly recognised without any limitation or qualification the right of a Hindu to adopt a daughter’s son, We shall see later on that Nanda Pandita was probably led to misconstrue the text of Saunaka, as it was given by him, by erroneously mixing up the ancient and obsolete practice of Niyoga with the law of adoption, and that Mr. Sutherland in the Synopsis went a step further and confused Niyoga with marriage.

103. In paragraph 107 of Section II of Mr. Sutherland’s translation of the Dattaka Mimansa at page 570 of Stokes’ Hindu Law Books a text is given as from Sakalya. Nanda Pandita referred to the text given by him as a text of Sakalya in continuation and in support of his argument on that portion of the text of Saunaka to which I have already referred, and I shall deal with it here, and before considering Nanda Pandiba’s comments on the other part of the text of Saunaka. The paragraph is as follows; “107. Cakala has clearly laid down the above points: ‘Let one of a regenerate tribe destitute of male issue, on that account, adopted (sic) as a son the offspring of a sapinda relation particularly: or also, next to him one born in the same general family: if such exist not, let him adopt one horn in another family: except a daughter’s son, a sister’s son and the son of the mother’s sisters.” The following paragraph gives Nanda Pandita’s comment on that text; “108. By this it is clearly established, that the expression ‘sister’s son’ (in the last sentence of Caunaka’s text, Section 74 is illustrative of the daugther’s son and mother’s sister’s son, and this is proper: for prohibited connection is common to all three. To enlarge would be useless.”

104. It appears to me that if we have before us in paragraph 107 of Section II of Mr. Sutherland’s translation of the Dattaka Mimansa the complete text of Sakalya as translated, the words “except a daughter’s son, a sister’s son, and the son of a mother’s sister” are equivalent to “let one of a regenerate tribe not adopt a daughter’s son, a sister’s son or the son of a mother’s sister,” and as no reason is given in the text (assuming it to be complete), we must, applying the rules of the Mimansa of Jaimini, construe the text as positively prohibiting such an adoption. Before, however, coming to the conclusion that a sacred text of the Hindu law has prohibited such an adoption, we must be satisfied that the text as given in the Dattaka Mimansa is not only a genuine text of the Hindu sacred law, but that it is the complete text, that is, that the original text contained nothing more and gave no reason for the exclusion of a sister’s son, a daughter’s son, and the son of a mother’s sister from the category of persons eligible for adoption; for if the original text contained a reason for the exclusion of the sister’s son, the daughter’s son, and the son of a mother’s sister, the original text was admonitory only, and not prohibitory.

105. Even a casual reader of the text of Saunaka, as interpreted by Nanda Pandita, and of that given as a text of Sakalya on comparing them would notice that whilst the text of Saunaka refers only to a sister’s son and a daughter’s son, the text given as that of Sakalya refers not only to a sister’s son and to a daughter’s son, but also to the son of a mother’s sister, and the natural enquiry would suggest itself why was no mention made of the son of a mother’s sister in the text of Saunaka, who, beyond all dispute was an authority of great importance in the Hindu sacred law? Only two possible answers could be given to that enquiry, one being that when Saunaka wrote he was not aware that any objection existed to the adoption of the son of a mother’s sister, which would he improbable if such an objection did in fact exist, particularly on the ground of incest, in Saunaka’s time, and the other answer being that in fact no objection to the adoption of the son of a mother’s sister did in fact exist in the time of Saunaka. Another matter which on comparison of those two texts, and hearing in mind the rules of construction of the Mimansa of Jaimini suggests itself is, that whilst the text of Saunaka gives, according to the opinion of Nanda Pandita, a reason, and consequently, if his opinion on that point is correct and the text is anything more than a mere statement of the fact that Sudras adopted a sister’s son and a daughter’s son, that text must be construed at the utmost as admonitory and not prohibitory, the text given as a text of Sakalya gives no reason, and if the text as given by Nanda Pandita he complete the text of Sakalya must be construed as a positive prohibition of the adoption of a sister’s son, a daughter’s son, and the son of a mother’s sister. Why should an undoubted authority such as Saunaka merely give an admonition not to adopt a sister’s son or a daughter’s son, and why should Sakalya, if in fact he did, positively prohibit the adoption of a sister’s son, of a daughter’s son, and of the son of a mother’s sister? From what source did Nanda Pandita obtain the text said by him to be a text of Sakalya? That text does not appear in any Veda, Sruti, Smriti, Sutra or Code of the Hindu law which is extant. It does not appear in any early commentary on the Hindu law, such as the Mitakshara, and appears for the first time, so far as is known, in the Dattaka Chandrika, which apparently preceded at no long interval the Dattaka Mimansa of Nanda Pandita. Where did the author of the Dattaka Chandrika find that text? Neither the author of the Dattaka Chandrika, whoever he may have been, nor Nanda Pandita, nor any one else has ever told us where the author of the Dattaka Chandrika found that text given as a text of Sakalya. The author of the Dattaka Chandrika found neither that text, nor the prohibition which it implies against the adoption of a sister’s son, of a daughter’s son, and of the son of a mother’s sister, in any sacred book, code or commentary of the Hindu law which is now known to Hindus or to Sanskrit scholars. I find it impossible to believe that no allusion to that text or to the prohibition which it implies against the adoption of a sister’s son, a daughter’s son, and the son of a mother’s sister should have been made in any sacred book, code or commentary of the Hindu law if the existence of that text or of that prohibition had been known before the author of the Dattaka Chandrika first produced it in his commentary. I cannot resist the, conclusion either that no such text existed, or, it did exist, that it was not considered of any authority. It makes illegal the adoption of a daughter’s son, whom Yama without any limitation recognises as a person as equally eligible as a brother’s son for adoption.

106. With such absence of all information as to how or where the author of the Dattaka Chandrika found the text, if it had in fact existed, how can we assume that we have before us a complete transcript of an original text of Sakalya? Was this alleged most ancient text generally acted upon as an authoritative text by Hindus? In this connection it should be borne in mind that the Full Bench of the Madras High Court in Eranjoli Illath Vishnu Nambudri v. Eranjoli Illath Krishnan Nambudri I.L.R. 7 Mad. 3, held that a custom amongst Nambudri Brahmans to adopt a sister’s son was established, and in Vayidinada v. Appu I.L.R. 9 Mad. 44, that in Southern India a custom exists amongst Brahmans to adopt a sister’s son and a daughter’s son, and that such custom is valid. In the Panjab, according to a note at page 1028 of West and Buhler’s Digest of the Hindu Law, 3rd edition, which is founded on Tupper’s Customary Law of the Panjab, a sister’s son and a daughter’s son maybe adopted with the consent of the male relations, the objection in the Panjab to the adoption of a sister’s son or a daughter’s son arising from their taking the property into another Gotr. The late Mr. Mandlik positively stated that in the Bombay Presidency such adoptions are common, and so far as I am aware that statement publicly made in his Vyavahara Mayukha has not been publicly contradicted, Golap Chandra Sarkar states that such adoptions are not uncommon in Lower Bengal, but what his authority for that statement was he does not mention, and I give the statement for what it is worth. Those two Full Bench cases in Madras and the fact that such adoptions are permitted in the Panjab coupled with the statement by Sir Thomas Strange which I have already quoted and with case XII and the cases in Motley’s Digest to which I have referred and with the late Mr. Mandlik’s statement as to the Bombay Presidency show either that the views as to the law of adoption expressed in the Dattaka Mimansa of Nanda Pandita were not generally accepted as correct, or that in many different parts of India were unknown to many large bodies of Hindus, or were repudiated as not binding on their consciences. Neither the alleged text of Sakalya nor Nanda Pandita’s prohibition is referred to in Colebrooke’s Digest. Golap Chandra Sarkar at page 335 of his Hindu Law of Adoption asks a very pertinent question, which might apply in many parts of India, “Has any Brahmana been ever outcasted by adopting his daughter’s or sister’s son, though instances of such adoption are not rare?” I think it probable that Nanda Pandita took the text from the Dattaka Chandrika. Mr. Sutherland in his Preface of 1819 to his translations of the Dattaka Mimansa and the Dattaka Chandrika (Stokes’ Hindu Law Books, page 527) gays that the Dattaka Chandrika was supposed to have been the groundwork of the Dattaka Mimansa. The same text is cited in each as the text of Sakalya. It is cited in paragraph 11 of Section 1 of Mr. Sutherland’s translation of the Dattaka Chandrika at page 631 of Stokes’ Hindu Law Books. Many of the observations which I have made on Nanda Pandita’s comments on the text of Saunaka apply equally to his comments on the text quoted by him as a text of Sakalya.

107. I shall now refer to the other passage in the text of Saunaka upon which Nanda Pandita also relied as justifying his conclusions. It would appear from Mr. Mandlik’s Vyavabara Mayukha at pages 481, 482, and 483, from Golap Chandra Sarkar’s Hindu Law of Adoption, particularly at pages 319, 320, 321, 328, and 329 and from Professor Jolly’s Outlines of an History of the Hindu Law, at pages 162, 163, and 164, that Nanda Pandita in the Dattaka Mimansa was influenced by thinking erroneously that the principles, upon which the practice of Niyoga was in remote ages governed, controlled the Hindu law of adoption, and that the application of those principles or of a misconception of those principles led Nanda Pandita to the view that the adoption amongst the three regenerate classes of a daughter’s son, a sister’s son, and the son of a mother’s sister was positively prohibited and illegal. That Nanda Pandita mixed up Niyoga with adoption appears plainly from his comments on the passage to which I am now referring, which appears in an earlier part of the text of Saunaka. A full translation of the text of Saunaka on adoption is given by Mr. Mandlik at pages 52 and 53 of his Vyavahara Mayukha and by Golap Chandra Sarkar at pages 308 and 309 of his Hindu Law of Adoption. The particular sentence occurs in the middle of a long description of the rites and ceremonies to be followed in an adoption and after the most important of those rites and ceremonies have been described, and before the description of ceremonies in adoption, the omission of which has been held by Courts in India not to invalidate an adoption. The particular sentence as it appears in paragraph 15 of Section V of the Dattaka Mimansa of Nanda Pandita was translated by Mr. Sutherland (Stokes’ Hindu Law Books, page 590) thus;–“having adorned with clothes, and so forth, the boy, bearing the reflection of a son.” The translation of the particular sentence has been given by Mr. Mandlik at page 52 of his Vyavahara Mayukha as follows: “having with clothes and the like adorned the boy bearing the reflection of a son, &c,” and by Golap Chandra Sarkar at page 308 of his Hindu Law of Adoption thus: “having adorned the boy bearing the reflection of a son with clothes and the like, &c.” Dr. Buhler has translated the original text thus: “He then should adorn the child which (now) resembles a son of the receiver’s body, &c.” (Journal of the Asiatic Society of Bengal, 1866, article Caunaka Smriti). Nanda Paridita apparently construed the passage in question as descriptive of the son prior to the adoption and not as descriptive of the adopted son after all the important rites and ceremonies, including the request for the gift, the gift, and the acceptance of the gift of the son in adoption, had been performed. It is highly improbable that in the middle of a passage describing the ceremonial of adoption Saunaka should have introduced, out of its place, a sentence having the effect of prohibiting the adoption of a son of a daughter, of a sister or of a mother’s sister. It appears to me that the sense of the sentence, having regard to the place where that sentence appears, is given in Dr. Buhler’s translation, and that the sentence means that, all the important rites and ceremonies of adoption having been performed, the adopted son then, and for the first time bore the reflection of a son to the man who had adopted him. The comments of Nanda Pandita are to be found in the 16th and following paragraphs of Section V of Mr. Sutherland’s translation of the Dattaka Mimansa at pages 590 and 591 of Stokes’ Hindu Law Books. Paragraphs 16 and 17 are as follows: “16 (‘The reflection of a son.’) The resemblance of a son,–and “that is, the capability to have sprung from [the adopter] himself, through an appointment (to raise issue on another’s wife), and so forth; as (is the case) of the son of a brother, a near or distant kinsman, and so forth. Nor is such appointment of one unconnected impossible; for, the invitation of such (to raise issue) may take place under this text: ‘For the sake of seed, let some Brahmana be invited by wealth, &c.

17. Accordingly, the brother, paternal and maternal uncles, the daughter’s son and that of the sister, are excluded: for they bear not resemblance to a son.”

108. If Mr. Sutherland’s translation is correct, Nanda Pandita must have been applying in paragraphs 16 and 18 of Section V the principles of the Niyoga to Saunaka’s text describing the ceremonies of an adoption in the Dattaka form. Except that by Niyoga a son was born it was in every particular the reverse of marriage. In marriage a husband obtained from his wife a son of his own getting, and he did not cease to be to his wife as a husband when she bore a son to him. In Niyoga apparently, to judge from texts and comments in Colebrooke’s Digest, an impotent man might authorize his wife to conceive by another main who was a brother or a kinsman or a Brahman, and the son so begotten might inherit the property of his mother’s husband like a son of the body of that husband begotten on his own wife; also a sonless widow might lawfully bear a son provided she had received her husband’s authority in his lifetime, or was authorised by her spiritual parents; further, a man who had no male issue might, after due authority given to him, beget a son from his own body on the wife of another, and in that case the son so begotten on the wife of another was considered as the son of his mother’s husband and as the son of the man who had begotten him. The brother kinsman who was invited to raise issue in the case of the impotent husband was bound to abstain from the woman as soon as she conceived and could not lawfully beget a second son on the woman. There were several directions as to the conduct of the man who was invited to raise issue, to which it is not necessary to refer; it is sufficient to say that there was no analogy between Niyoga and Marriage. In the latter part of paragraph 16 of Section V, it is quite certain that Nanda Pandita was referring to that particular form of Niyoga in which a brother or a kinsman or a Brahmin was appointed or invited to beget a son for an impotent husband on that husband’s wife, and, if Mr. Sutherland’s interpolations (in brackets) were discarded, it is probable that the earlier part of that paragraph referred also to that particular form of Niyoga. In paragraphs 19 and 20 of Section V, if Mr. Sutherland’s translation be correct, Nanda Pandita apparently wandered off into illustrations from marriage. In paragraph ccxxxvi, coxliv and ccxlv, at pages 362 and 366 of Colebrooke’s Digest, Volume II, will also be found curious illustrations to explain the result of Niyoga. The paragraphs of Nanda Pandita, to which I am referring, have puzzled Sanskrit scholars. The Madras High Court in Minakshi v. Ramanada I.L.R. 11 Mad. 49, held that Mr. Sutherland’s translation of paragraph 20 of Section V was incorrect; that the Sanskrit of Nanda Pandita in that paragraph which Mr. Sutherland had translated as ” with the mother of whom the adopter might have carnal knowledge” were correctly translated by Mr. Mandlik thus: “with the mother with whom Niyoga is possible.”

109. It is generally hazardous work to attempt to give an explanation of the source of many of the opinions of such a writer as Nanda Pandita. In some cases no doubt they were evolved from his inner consciousness, in others they resulted from a simple misapprehension of an ancient text, and in others they were the result of confusing two or three totally different matters, and of construing the ancient text in the light of such confusion. The following explanation of the source of Nanda Pandita’s opinions as explained in paragraphs 16 to 20 of Section V of the Dattaka Mimansa appears to me to be reasonable’. Manu mentioned twelve’ kinds of sons. They are thus given in Slokes 159 and 160 of Chapter IX of the Laws of Manu (Sacred Books of the East, Vol. XXV): “159. The legitimate son of the body, the son begotten on a wife, the son adopted, the son made, the son secretly born, and the son east off, (are) the six heirs and kinsmen. 160. The son of an unmarried damsel, the son received with the wife, the son bought, the son begotten on a remarried woman, the son self-given, and the son of a Sudra female, (are) the six (who are) not heirs (but) kinsmen.” Sloke 165 is as follows: “165. The legitimate son and the son of the wife (thus) share the father’s estate; but the other ten become members of the family, and inherit according to their order (each later named on failure of those named earlier).” In Slokes 166 to 179 the twelve kinds of sons are more fully described. The 166, 167, and 168 Slokes are translated by Dr. Buhler (Sacred Books of the East, Vol. XXV), thus: “166. Him whom a man begets on his own wedded wife, let him know to be a legitimate son of the body (Aurasa) the first in rank. 167. He who was begotten according to the peculiar law (of the Niyoga) on the appointed wife of a dead man, of a eunuch, or of one diseased is called a son begotten on a wife (Kshetraja). 168. That (boy) equal (by caste) whom his mother or his father affectionately give, (confirming the gift) with (a libation of) water, in times of distress (to a man) as his son, must be considered as in adopted son (Datrima).” Then follow the descriptions of the Kritrima and the others of the secondary sons or substitutes for sons, all except the legitimate son being referred to in Sloke 180 as “substitutes for a son, (taken) in order (to prevent) a failure of the (funeral) ceremonies.” In Chapter X of that part of Devanda Bhatta’s Smriti Chandrika which relates to the Law of Succession and Inheritance he refers to Manu’s list of twelve sons. After referring to the legitimate son (Aurasa) Devanda Bhatta says (Chapter X of the translation by Kristnasawmy Iyer of the Smriti Chandrika of Devanda Bhatta on the Law of Inheritance): “The sons of the description of Kshetraja and the like inherit the property of their respective fathers [namely, the husband of the woman on whom the Kshetraja was procreated and the like,] and riot the brothers, &c., of such fathers. 4. The same author [Manu] defines Kshetraja and the other classes of secondary sons: I. He who was begotten, according to law, on the wife of a man deceased, impotent, or degraded, after due authority given to her, is called ‘Kshetraja’ or the lawful son of the wife. II. He whom his father or mother affectionately gives as a son, being alike [by a class] and in a time of distress; confirming the gift with water, is called ‘Dattrima’ or a son given.” Then follow the definitions of the other kinds of sons. Amongst the twelve sons mentioned by Manu and referred to by Devanda Bhatta, there is no mention of, or allusion to, a son begotten by a sonless man upon the wife of another man; and, indeed, it would further appear from those Slokes of Chapter IX of the Laws of Manu Books of the East, Vol. XXV), beginning with Sloke 31, concerning male offspring that the form of Niyoga by which in ancient times a sonless man might with the authority of the husband beget a son on another man’s wife was not allowed by Manu in Slokes 41–42 Manu says: “41. Never, therefore, must a prudent well-trained man, who knows the Veda and its Angas and desires long life, cohabit with another’s wife. 42. With respect to this matter those acquainted with the past recite some stanzas, sung by Vayu (the Wind, to show): that seed must not be sown by (any) man on that which belongs to another.” Then follow several illustrations from the growing of crops, &c. This is the illustration given in Sloke 53: “53. But if by special contract (a field) is made over (to another) for sowing, then the owner of the seed and the owner of the soil are both considered in this world as sharers of the crop.” One who did not read Sloke 53 with the Slokes preceding it and with those succeeding it might possibly infer that in Sloke 53 Manu recognised that form of Niyoga by which a sonless man begot a son upon another man’s wife; even if such inference might properly be drawn from Sloke 53, yet the son so begotten would not be one of the twelve sons mentioned by Manu, who could inherit and also perform the funeral ceremonies. According to Section X of Chapter II of Mr. Colebrooke’s translation of the Mitakshara, which treats of the rights of the dwyamushyayana or son of two fathers, Niyoga to have effect in producing a son who could offer funeral oblations must have been performed on the wife of a childless man, and Manu had apparently prohibited the practice, and also, apparently, it was permissible only when the woman had been betrothed, but the marriage had not been consummated, and the man to whom she had been betrothed had died childless. According to Manu and Devanda Bhatta the Kshetraja was the only son begotten in Niyoga who could inherit and perform the funeral ceremonies. The Kshetraja was begotten in Niyoga pure and simple, and was not treated by Manu or Devanda Bhatta as in any sense a son adopted (datrima) in the dattaka form, to which form alone the text of Saunaka related. Some commentators have referred to the secondary or substitute sons mentioned by Manu as adopted sons; but it is clear that the only son who could be said to have been adopted in the dattaka form was the datrima mentioned in the 168th sloke of Chapter X of the Laws of Manu. We have seen that the latter part of paragraph 16 of Section V of Nanda Pandita’s Dattaka Mimansa refers to that form of Niyoga in which alone the Kshetraja could be begotten, and that reading that portion of the paragraph with the earlier part, as Nanda Pandita apparently intended it to be read, and omitting Mr. Sutherland’s interpolations, the whole paragraph related to that one form of Niyoga by which the Kshetraja could be begotten, that is by another man upon the impotent husband’s wife. Paragraph 18 of Section V of the Dattaka Mimansa of Nanda Pandita obviously referred to Niyoga; but owing to the doubts which have been entertained as to Mr. Sutherland’s translation being correct, I am unable to say to which form of Niyoga Nanda Pandita was referring in that paragraph. Now my explanation is that Nanda Pandita looking about for any explanation, except the obvious one, of the text of Saunaka relating to the resemblance of a son, and finding the datrima following immediately after the Kshetraja in the list of sons who could inherit given in Devanda Bhatta’s Smriti Chandrika and in the laws of Manu, confusedly considered that there was some connection between the datrima and the Kshetraja, or in other words between adoption in the dattaka form and Niyoga, and with a little wandering off into fanciful illustrations from marriage, the result was paragraphs 16, 17, 18, 19.and 20 of Section V of the Dattaka Mimansa. What Nanda Pandita overlooked was that if adoption in the dattaka form was controlled by the principles of the only form of Niyoga, in which according to Manu and Devanda Bhatta a son could be born who could inherit and perform the funeral ceremonies, there never could be born a boy who could be an object of adoption in the dattaka form; for the son begotten by another man on the wife of the impotent husband with his authority was in the Hindu Law of those ancient times the son of the latter, and a man cannot adopt his son. If, as the Madras High Court held, Mr. Mandlik’s translation of the concluding words of paragraph 20 of Section V of Nanda Partdita’s Dattaka Mimansa be correct, and Mr. Sutherland’s translation of those words be incorrect, it is plain that Nanda Pandita when he wrote them was referring to Niyoga and not to marriage. Nanda Pandita was no more justified in confusing the Datrima (adopted son) with the Kshetraja than he would have been if he had confounded the Datrima with other secondary sons, and had illustrated the text of Saunaka by references to them. Dr. Jolly, at pages 163 and 164 of his Outlines of an History of the Hindu Law, and Mr. Mandlik, at pages 482 and 483 of his Vyavatiara Mayukha, give forcible illustrations of the result of applying the principles of Niyoga to adoption, and show that if Nanda Pandita was correct in applying the principles of Niyoga to adoption other rules propounded by him in his Dattaka Mimansa must be wrong.

110. The opinion, that in adoption amongst the three regenerate classes the person to be adopted must be one who by a legal marriage with his mother might have been the legitimate son of the adopter which influenced Sir William Macnaghten and others who wrote on the subject of adoption, and which led to many of the decisions of the Courts in India as to a daughter’s son, a sister’s son, and the son of a mother’s sister being inadmissible for adoption amongst the three regenerate classes, appears to me to have been adopted from a passage in Mr. Sutherland’s Synopsis which accompanied his translation of the Dattaka Mimansa and the Dattaka Chandrika. The passage in the Synopsis is to be found at page 664 of Stokes’s Hindu Law Books, and is as follows: “The first and fundamental principle is that the person proposed to be adopted, be one who by a legal marriage with his mother might have been the legitimate son of the adopter., By the operation of this rule, a sister’s son and offspring of other female, whom the adopter could not have espoused, and one of a different class are excluded from adoption. In the present age, marriage with one unequal in class is prohibited.” Whether or not that statement in the Synopsis was a reasonable deduction from the comments of Nanda Pandita in paragraphs 16 to 20 of Section V of his Dattaka Mimansa, I think it is obvious that it was upon the supposed authority of those comments that Mr. Sutherland made the statement. If the comments of Nanda Pandita in paragraphs 16 to 20 of Section V of his Dattaka Mimansa were not justified by the text relating to the resemblance of a son, it follows that the statement of Mr. Sutherland, which I have quoted from his Synopsis, was without foundation in the Hindu law, as in my opinion that statement was, Professor Jolly at page 163 of his Outlines of an History of the Hindu Law referring to what he describes as “a somewhat obscure passage in Nanda Pandita’s Dattaka Mimansa” says: “Supposing even the reading translated by Sutherland to be correct, which is doubtful, it was apparently not connection by marriage, but connection by Niyoga, which Nanda Pandita had primarily in view.” Mr. Mandlik at pages 480 and 481 of his Vyavahara Mayukha referring to Mr. Sutherland’s rule in his Synopsis says: “Mr. Sutherland’s rule in his Synopsis goes far beyond what he cites as his authorities. He seems to have confounded Niyoga with what he calls ‘ legal marriage’…. Niyoga is not a marriage at all of any kind whatever, and further, Niyoga presupposes at the least a former betrothal of the woman with whom the said Niyoga is presupposed. Niyoga, strictly speaking, means the raising up of issue on the widow of a deceased by some one on appointment. As a practice, it has been reprobated by Manu. At no time in India’s History was Niyoga ever exalted to the rank of marriage; and it is now a mere fossilized relic of the past. Marriage is one of the principal Sanskaras amongst the Hindus; whereas Niyoga is neither a Sanskara nor even a mere inferior popular observance sanctioned by custom. At the best, it was according to Manu a beastly practice, reprobated by the learned, and expressly prohibited in the Kali age. How Mr. Sutherland should have made the mistake of confusing Niyoga with ‘legal’ marriage is to me inexplicable.

111. Shortly expressed the conclusions at which I have arrived with regard to Nanda Pandita’s views on this question of adoption are that the texts from Saunaka, even as given by Nanda Pandita, do not bear the construction which he has put upon them, and that there is too much uncertainty as to the genuineness, completeness, and authority of the text cited by him as a text from Sakalya to warrant his conclusion that the adoption of a son of a sister, the son of a daughter and the son of a mother’s sister amongst the three regenerate classes was prohibited by the Hindu text law as it existed at or prior to the time when he wrote his Dattaka Mimansa. That no such prohibition existed in the law as understood at that time by the School of Benares I am satisfied.

112. The next question is, have the opinions of Nanda Pandita as to the adoption of a son of a sister, of a son of a daughter, or of the son of a mother’s sister amongst the three regenerate classes been within the last 270 years generally accepted and acted upon by Hindus who are subject to the Benares School of Hindu Law; in other words is there any proof, clear or otherwise, upon which a Judge would he justified in acting, that any general usage based upon or in conformity with that opinion of Nanda Pandita has sprung up amongst and been followed by Hindus subject to the Benares School of Hindu law? What may or may not have taken place amongst Hindus subject to other schools of Hindu law maybe instructive to students of, and writers on, Hindu law, but the existence or non-existence in other schools of Hindu law of a usage cannot be accepted in proof or in disproof of the existence of the same usage in the Benares School of Hindu law, with which alone we are concerned. We know from what I have already stated that in Madras, probably in Bombay and possibly in Lower Bengal, the prohibition against such adoption has not been universally accepted, and we know that no such restriction of the right of adoption, based on the ground of incest, has been accepted in the Panjab. From that we cannot infer that there is amongst Hindus in these provinces, who are subject to the Benares School, any usage or sacred text which prohibits the adoption of a sister’s son, of a daughter’s son, or of the son of a mother’s sister.

113. Can we draw an inference that any such usage existed generally or at all in these provinces or elsewhere from the writings of Mr. Sutherland, of Sir Francis Macnaghten, of Sir William Macnaghten, or of Sir Thomas Strange? Mr. Strange’s Manual of Hindu Law is not in this Court’s Library, and consequently I am unable to express any opinion as to his views.

114. We know upon what basis or rather lack of basis Mr. Sutherland founded his opinion that;–“The first and fundamental principle (of the Hindu Law of Adoption) is that the person proposed to be adopted, be one who by a legal marriage with his mother might have been the legitimate son of the adopter.” We know that Mr. Sutherland’s opinion was founded upon the Dattaka Mimansa of Nanda Pandita and upon Mr. Sutherland’s contusion of marriage with Niyoga.

115. The statement in Macnaghten’s Principles and Precedents of Hindu Law (Sir William Macnaghten’s) at page 67 of Volume I of the 3rd edition that the party adopted should not be the son of one whom the adopter could not have married, such as a sister’s son or a daughter’s son is obviously a mere paraphrase of the passage in Mr. Sutherland’s Synopsis which I have already quoted, although Narada is apparently the only authority cited by Sir William Macnaghten for that particular proposition. We know from Professor Jolly, who translated the Narada Smriti, that no such rule is to be found in either of the two versions of the Narada Smriti. In the note at page 185 of Volume II of the 3rd edition of Macnaghten’s Principles and Precedents of Hindu Law to case XII in which the Pandits in a case from zilla Mirzapur had stated in effect that the adoption of a daughter’s son was valid, it is suggested that the parties were Sudras. I have already pointed out that if the parties were Sudras the question so far as the legality of the adoption of a daughter’s son was concerned was unnecessary and meaningless, as no one had ever suggested that such an adoption by a Sudra would not be valid. So far as I have been able to ascertain there was, with the exception of the case to which I have last referred, no report until long after the publication of Macnaghten’s Principles and Precedents of Hindu Law of any case, in which the question of the right of a member of one of the three regenerate classes to adopt a sister’s son, or a daughter’s son, or a son of a mother’s sister arose, which clearly came from any district in which the Hindus were subject to the Benares School of Hindu law. If I am in error in assuming that in case XII to which I have just referred, the parties were not Sudras, (Sir William Macnaghten considers that the parties were Sudras), then so far as I have been able to ascertain there was not, until more than thirty years after Macnaghten’s Principles and Precedents of Hindu Law were written and until many years after the death of Sir William Macnaghten, any report of any decided case in which this question arose and was decided, and in which it is clear that the parties were members of one of the three regenerate classes and were Hindus subject to the School of Benares, or were even residents within the district in which the law of that School prevails. Consequently, notwithstanding the reputation of the Principles and Precedents of Hindu Law, I cannot infer from it that at or before the time it was written there was any usage amongst the Hindus subject to the Benares School by which the adoption of a sister’s son, or a daughter’s son, or of the son of a mother’s sister was prohibited amongst any classes of Hindus. The same remarks would apply to the works of Sir Francis Macnaghten and Sir Thomas Strange, who wrote respectively in 1824 and 1825.

116. The statement at page 150 of Sir Francis Macnaghten’s Consideration on the Hindu Law as it is Current in-Bengal, published in 1824, that;–“The son of a sister, or of a daughter may be adopted by a Sudra, As to three superior classes, the rule is, that they cannot adopt a son whom it would be incest to have begotten,” is evidently taken from the comments of Nanda Pandita in the Dattaka Mimansa and from the statement of Mr. Sutherland in his Synopsis to which I have already referred. Later in page 150 Sir Francis Macnaghten said: “The Reverend Saunaka Muni, (as he is called by Goverdhana) says…. But in no case a sister’s son, or a daughter’s son, or those whom common sense prohibits the adoption of, such as a brother, a paternal uncle, or a maternal uncle…”. The italics are Sir Francis Macnaghten’s.

117. Sir Thomas Strange at page 83 of his Hindu Law, Volume I, treating of the relation of the person to be adopted to the adopter, says : “The general principle, as laid down in a recent work of great weight upon the whole of this subject, is, that one, with whose mother the adopter could not legally have married, must not be adopted…. Though the adopted be not the actual son of the adopter, he is to resemble, and come as near to him as possible. He is to be at the least such as that he might have been his son. But the adopter could not have married his own mother; it is a prohibited connexion. Consequently his brother cannot be adopted by him. The same consideration excludes the paternal and maternal uncles; the daughter’s and the sister’s son. It must be noticed, however, that these two latter are eligible to adoption among Surras: if not also in the three superior classes, notwithstanding positions to the contrary, no other being procurable.” We know from note (3) at page 83 that the “recent work of great authority” was Mr. Sutherland’s Synopsis. We also know from the notes to pages 83 and 84 that the Dattaka Vimansa and the Dattaka Chandrika were the other authorities upon which Sir Thomas Strange relied in part for the propositions which I have quoted. It is obvious from the concluding portion of the quotation that Sir Thomas Strange did not accept as universally applicable the rule of Mr. Sutherland’s Synopsis or the rule of the Dattaka Mimansa of Nanda Pandita. If the incest theory of Nanda Pandita and Mr. Suther land were the true theory, and if Nanda Pandita’s construction of the text of Saunaka were correct, it is difficult to understand how the difficulty as to incest could be removed where no other than a daughter’s son or a sister’s son happened to be procurable for adoption. I have already referred to the note at page 101 of the 2nd volume of Sir Thomas Strange’s Hindu Law. The whole note is valuable, as it apparently was written after considerable research and with knowledge of the Dattaka Mimansa of Nanda Paudila and before the mind of Sir Thomas Strange, if he was the writer, had been influenced by the sweeping proposition of Mr. Sutherland in his Synopsis.

118. Mr. Arthur Steele, who wrote in 1826, as I infer from the date of his Preface, at page 44, paragraph XXXVIII, edition of 1868, of his Law and Custom of Hindoo Castes within the Dekhun Provinces Subject to the Presidency of Bombay, after giving a listof five classes of boys who may be adopted, says: “6. A boy of a different Gotr, but of the same caste Purgotr. Such are the sister’s son and daughter’s son, who are adoptible in default of the preceding, P.C. (Koustoobh and Nirunesindhoo). A paternal uncle cannot be adopted being in place of his father. Nor a maternal uncle for ‘an elder relation’ (without regard to the relative age of the parties)’ cannot be adopted.’ “It may be inferred from the passage which I have quoted that the incest theory was not responsible for the exclusion of a paternal uncle and a maternal uncle from the list of those capable of being taken in adoption. It will also be noticed that Mr. Steele and Sir Thomas Strange agree that in default of other objects of adoption a sister’s son and a daughter’s son may be taken in adoption. That statement of Mr. Steele was founded on the authority of the opinion of the Poona College, although it appears from a note that some of the Poona Sastris held a different opinion.

119. An examination of the English Commentaries on Hindu law Which were written between 1819 and 1830, in my opinion shows that Mr. Sutherland was responsible for the theory that the person 60 be adopted must be one who, by a legal marriage with his mother, might have been the legitimate son of the adopter; that that proposition was without sufficient enquiry adopted by Sir Francis Macnaghten and by Sir William Macnaghten, and that, with an important modification, which was destructive of the basis of the theory, it was adopted by Sir Thomas Strange, although Sir Thomas Strange was well aware that in Southern India “in practice, the adoption of a sister’s son by persons of all castes was not uncommon.” The text-books of authors who have followed Mr. Sutherland and Sir William Macnaghten do not, with the knowledge of the authority which was relied upon by those authors, lead me to the inference that prior to 1830 there was any generally recognised prohibition, in the texts of the Hindu law or by general usage, amongst Hindus of any of the three regenerate classes against the adoption of a sister’s son, of a daughter’s son, or of a mother’s sister’s son; on the contrary, they lead me to the conclusion that the only prohibitions against such adoptions then known were the prohibitions of Mr. Sutherland, of Nanda Pandita, and of the author of the Dattaka Chandrika.

120. There had not, so far as I have been able to ascertain, been any case decided prior to 1815 in which it was held anywhere that the adoption of a sister’s son, of a daughter’s son, or of a son of a mother’s sister was prohibited amongst any one of the three regenerate classes, except possibly the case of 1809 from Masulipatam, which 1 have not seen. In the case No. 59 in Morley’s Digest it was held in 1815 that a Brahman could not adopt his sister’s son. On the other hand, we have the fact that the Dattaka Mimansa of Nanda Pandita, the Dattaka Chandrika, the text of Saunaka, and the text given as a text from Sakalya relied upon in those commentaries are not even referred to in Mr. Colebrooke’s Digest. We have also the note, but when made does not appear, of Sir Thomas Strange to the case of 1806 from the zilla of Cuddapah in which, having noticed the Dattaka Mimansa of Nanda Pandita and to local works, he stated that in practice the adoption of a sisters son among stall classes in Southern India was not uncommon. We have also the fact that in the case of 1808 from the zilla Mirzapur (case XII at page 185 of Macnaghten’s Hindu Law, Volume II) and in the case of 1810 numbered 58 in Morley’s Digest, the prohibition of Nanda Pandita was not applied. We have also the positive assurance of the late Mr. Mandlik (Introduction to the Vyavahara Mayukha, page 73) that in the Bombay Presidency the Dattaka Mimansa of Nanda Pandita “was not even known to the people in original for many years after the publication of its translation under the auspices of Government.” The abovementioned facts lead me irresistibly to the conclusion that the surmise of Mr. Mayne, in paragraph 30 of his Hindu Law and Usage, that the authority which the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika possess over other works on the subject of adoption is attributable to the fact that they became easily accessible to English lawyers and Judges from being translated by Mr. Sutherland, is well founded and is correct. Mr. Sutherland’s translation of those two works was published in 1821. He had, as would appear from his Preface, been at work on the translation for some considerable time. I have come to the conclusion that the Dattaka Mimansa of Nunda Pandita and the Dattaka Chandrika were not treated even by the learned in Lower Bengal as works of any authority until after 1810 at the earliest. When they or their prohibitions became known, if at all, to the people, it is impossible to say; most probably not even in any part of Lower Bengal until after 1815. It is easy to understand how Sir William Macnaghten may in 1829 have been misled as to their importance. To English Judges and to English Counsel a translation into English of a commentary on the law of adoption would be more intelligible than would be texts and commentaries in Sanskrit, and amongst English Judges and English Counsel in India the translations of Mr. Sutherland would at once attract attention, and would give to the Dattaka Mimansa of Nanda Pandita and to the Dattaka Chandrika an importance in the syes of English Judges which I believe they did not possess amongst the people.

121. That the prohibition of Nanda Pandita and of Mr. Sutherland may have been adopted by the English Judges in Bengal between 1815 and 1824 is probable.

122. That the prohibition of Mr. Sutherland and the opinions of the English Judges of Lower Bengal may, in the course of years as they became known, have influenced the Brahminical order in Calcutta and the adjacent districts is not improbable, but it must be remembered that those were not the days of railways and of a widely circulating native press. Whether or not a usage sprang up in Lower Bengal, prohibiting the adoption of a sister’s son, of a daughter’s son, and of the son of a mother’s sister, is not the question which we have to decide. Except for the purposes of testing the accuracy of the statements of Sir William Macnaghten as to the authority of the Dattaka Mimansa of Nanda Pandita, and of testing the accuracy of the statements of Mr. Sutherland and of those who followed him, the enquiry as to whether or not the usage amongst the followers of the Daya Bhagain Lower Bengal was in or prior to 1830 in accordance with that prohibition is beside the question. I think I may reasonably assume that no Hindu lawyer of position would now-a-days suggest that the existence or non-existence of a Particular usage as to adoption amongst the Hindus who belong to the school of the Daya Bhaga would be evidence that the particular usage existed or did not exist amongst the Hindus who are subject to the School of Benares.

123. I may, however, point out that there is before this Bench absolutely nothing which a Judge could for one moment look at as evidence of the existence or non-existence at the present day of any usage amongst Hindus of Lower Bengal allowing or prohibiting the adoption amongst the three regenerate classes of a daughter’s son, of a sister’s son, or of the son of a mother’s sister. The statement of Golap Chandra Sarkar in his Hindu Law of Adoption that such adoptions are not uncommon in Lower Bengal does not show that such a usage does exist or does not exist; that statement if well founded merely shows that the prohibition of Nanda Pandita has not been universally accepted and acted upon in Lower Bengal. As that statement was publicly made in the course of delivering his Tagore Law Lectures, and has, so far as I am aware, never been publicly contradicted, it may be taken for what it is worth. But before accepting as evidence in a suit the statement in the book of a living author that a custom or usage does or does not exist generally or in any particular locality, I should, as a Judge who is bound to administer the law, require that the author of the statement should be placed in the witness-box before me in order that the litigant whom that statement might affect should have an opportunity of testing its accuracy and of ascertaining the sources of knowledge upon which it was founded. Even a Judge upon the Bench cannot lawfully act upon his own knowledge of a particular fact, but must act upon the evidence before him, as was pointed out many years ago by Mr. Field, who was a distinguished Judge of the High Court at Calcutta, in his Introduction to his Law of Evidence in British India.

124. To the question whether any such prohibition was in or prior to 1830 understood and adopted by the Hindus of these provinces who are subject to the School of Benares, the only answer which, in my opinion, a Judge can give is that there is, so far, no evidence that it was, and as no text of the Hindu law of the School of Benares imposes such a prohibition, or limits in that respect the right of adoption, the presumption is that no such prohibition had been imposed by any usage amongst the Hindus of that School.

125. I shall now refer to those of the reported cases which related to Hindus resident within the districts, which have always been subject to the Hindu law of the Benares School, in order to ascertain, if possible, whether or not they afford any evidence as to the existence, either before or after 1830, amongst the three regenerate classes of Hindus who are subject to the School of Benares of any usage by which a sister’s son or a daughter’s son or the son of a mother’s sister could not be validly adopted. The earliest case of which I have been able to discover any trace is case XII in Macnaghten’s Principles and Precedents of Hindu Law, Volume II, pages 185, 186, and 187; it was as I have already said a case from zilla Mirzapur in 1808, Assuming that the reason which I have already given for concluding that the parties belonged to one of the three regenerate classes is correct, it shows that in 1808 in the Benares School the opinion of the Pandits was that an adoption of a daughter’s son was valid and that Nanda Pandita’s doctrine as to incest was not entertained in the Benares School.

126. In 1810 a suit was instituted in the Provincial Court of Bareilly, which ultimately came on appeal in 1834 before their Lordships of the Privy Council from the Sudder Dewani Adalab of Bengal. It was the case of Baja Haimun Chull Sing v. Koomer Gunsheam Sing, 2 Knapp., 203. It involved the questions as to whether a widow who had not been given authority by her husband to adopt and had not the authority of her deceased husband’s relatives to adopt could adopt a son to him, and whether an only son could be given in adoption. Its only interest in the present case consists in the statements made by certain Pandits who were consulted in the course of the suit. On the 12th of April 1813 the Provincial Court dismissed the suit. The plaintiff appealed to the Sudder Dewani Adalat at Calcutta, which Court, after having taken the opinion of certain Pandits, dismissed the appeal on the 14th of July 1817. These dates are material, as they indicate the period within which the Pandits who were consulted by the Sudder Dewani Adalat gave their opinion. The Pandits who were consulted by the Sudder Dewani Adalat were the Pandit of the Provincial Court of Bareilly and certain Pandits in Calcutta of the Sudder Dewani Adalat. The Pandit of the Provincial Court of Bareilly in his reply made the monstrously untrue’ statement that the Vyavahara Mayukha was in force in the zilla Etawah. The Vyavahsra Mayukha has never been in force in any of the districts of the North-Western Provinces of the Presidency of Fort William in Bengal. It would of course be applicable to Hindus who had come from the Bombay Presidency and bad carried with them and retained their laws. It is obvious that the parties to the suit were natives of these provinces, and were not Mahrathas. The Pandits of the Sudder Dewani Adalat at Calcutta in their reply stated that the Dattaka Mimansa was in force in the zilla Etawah. The probability is that the latter statement had no more foundation in fact than had the statement as to the Vyavahara Mayukha. The Pandits in Calcutta in making this statement as to the Dattaka Mimansa were most probably influenced by the fact that the prohibition of the Dattaka Mimansa of Nanda Pandita must have been applied in 1815 in case No. 59 of Morley’s Digest, although it does not appear to what part of the country the parties in that case belonged. How the Pandits of Calcutta should have known what were the works of authority received by the Hindus of the Etawah district does not appear. The Etawah district is nearly. 800 miles distant from Galoutta, and, in those days of bullock-garis, it must have taken from four to five weeks to make the journey from Calcutta to Etawah, Further, the Hindus of Lower Bengal and the Hindus of these provinces were as little of the same race as Italians and Germans are, and the languages spoken by the people of the respective districts were essentially different. The Pandit of Etawah who was consulted by the Provincial Court, and the Pandit of Benares, the latter of whom had given an opinion in another case, the record of which had been forwarded to the Sudder Dewani Adalat, had apparently not referred either to the Dattaka Mimansa of Nanda Pandita or to the Vyavahara Mayukha.

127. The next case was that of Luchmeenauth Rao Naik Kaleya v. Mussumat Bhina Baee 7 S.D.A. N.W.P. 441. That case came from Benares and raised amongst other questions the question whether the adoption of a sister’s son during the lifetime of a brother’s son was illegal. The Court Pandits advised that the adoption of a sister’s son during the lifetime of a brother’s son was illegal. It is specially to be noticed that neither the plaintiff’s case nor the answer of the Court Pandits suggests that the adoption of a sister’s son would, if the brother’s son had not been alive at the date of the adoption, have been prohibited and illegal. We know that for years there was a fierce controversy on the question whether anyone other than a brother’s son could be adopted, if a brother’s son was alive and eligible. The Principal Sudder Amin and the Sudder Dewani Adalat of these Provinces on appeal declined to decide the question of adoption and decided the case on another point, In page 1028 of West and Biihler’s Digest of the Hindu Law, 3rd edition, that case is cited as an authority for the proposition that in the North-Western Provinces, “the adoption of a sister’s son is invalid, according to the decisions, as it imports incest not only among Brahmans, but generally in the three regenerate classes, except perhaps the Vaisyas.” The fact is that the case decided nothing of the kind, the only inference to be drawn from it is that in the School of Benares in 1852 the prohibition of Nanda Pandita and Mr. Sutherland and their doctrine of incest had not been accepted. The authors of West and Buhler’s valuable Digest of Hindu Law were possibly misled by Sir Michael Westropp, C.J., as to what had been decided in these provinces in Luchmeenauth Rao Naik Kaleya v. Mussumat Bhina Baee. Sir Michael Westropp cited that case in his judgment in Gopal Narhar Safray v. Hanmant Ganesh Safray I.L.R. 3 Bom. at p. 292, for the following proposition: “The adoption of a sister’s son by a Brahman has in the North-Western Provinces also been held invalid.”

128. In January 1866 the case of Shib Lall and Shitab Rae v. Bishumber S.D.A. N.W.P. 1866, p. 25, was decided in appeal by the Sudder Dewani Adalat of these Provinces. The suit was for cancellation of a deed of gift on the ground that the gift was contrary to the administration papers of the village in which the subject of the gift was. The defendants pleaded that the administration papers did not invalidate the gift, that the village had been divided and the administration papers had ceased to be of force, and further that the gift having been made to an adopted son was good in law. The parties were Brahmans. The adoption was of a sister’s son. The donor stated that he had taken the child, Deena Nath, into his house when the child was five years old, had adopted the child two years later, had feasted the members of the brotherhood in acknowledgment of the adoption and had managed and defrayed the expenses of the marriage of Deena Nath who had continued until his death as a member of the donor’s family. The Munsif dismissed the suit finding the issues, including that as to the adoption, in favour of the defendants. The District Judge in appeal, without expressing any opinion as to the validity of the adoption, reversed the decree of the Munsif and gave the plaintiff a decree cancelling the gift on the ground that as the division of the village had not been completed the gift was contrary to the administration papers. The defendants appealed to the Sudder Dewani Adalat of these Provinces, and that Court agreed with the District Judge as to the gift having been invalid by reason of the administration papers, and accepting, for the purposes of its judgment, the statement of the donor as to the adoption of Deena Nath applied the prohibition of Mr. Sutherland in the very words of its author in the Synopsis, using inverted commas and giving the reference, and found that the adoption was illegal. It is obvious that the Sudder Dewani Adalat of these provinces did not find against the adoption on any evidence of a usage. The evidence as accepted by that Court for the purposes of its judgment strongly negatived any usage forbidding such an adoption, it showed that on the occasion of the adoption the members of the brotherhood had assembled and had been feasted in acknowledgment of the adoption. If in the opinion of the members of the caste the adoption of a sister’s son was illegal according to Hindu Law, the members of the brotherhood would not have attended the adoption feast, and thereby rendered themselves liable to be outcasted. It will be remembered that the Native Munsif had found the adoption valid. Without any evidence that Mr. Sutherland’s prohibition against the adoption of a sister’s son had been accepted by usage in these provinces, and with evidence before them strongly indicating that the adoption by a Brahman subject to the School of Benares of his sister’s son was not contrary to usage in these Provinces, the two learned Judges of the Sudder Dewani Adalat applied Mr. Sutherland’s prohibition. It was not until 1868 that their Lordships of the Privy Council in The Collector of Madura v. Moottoo Bamalinqa Sathupathy 12 Moo. I.A. at p. 436, laid down what were the duties of an English Judge in such cases.

129. The next case in these provinces was that of Musummat Battas Kuar v. Lachman Singh 7 N.W.P. H.C. Rep. 117. In that case a widow without authority from her deceased husband had adopted to her deceased husband her brother’s son. The first Court held on the authority of the Dattaka Mimansa of Nanda Pandita that a brother’s son must not be adopted by a sister. The Judge of Cawnpore decided in appeal against the adoption on the ground that according to the Dattaka Mimansa as referred to in Macnaghten’s Hindu Law, the party adopted…should not be the son of one whom the adopter could not have married, such as his sister’s son or daughter’s son. This Court without considering whether any such rule of law was deducible from the texts of the law or was accepted by the School of Benares held that the adoption was “liable to be avoided on the ground that the adopted person was not legally eligible for adoption by the widow on her husband’s behalf, and also on the ground that she had not been authorized by him to adopt a son on his behalf.” In that case Mr. Justice Pearson and Mr. Justice Spankie apparently without any consideration of the subject and certainly without any proof of a usage in these provinces adopted the dicta of Nanda Pandita and Sir William Macnaghten, as they found them. That case was decided by this Court in 1875. As an authority on the particular question before us that decision is worthless, if in fact, as it would appear, the widow had adopted her own brother’s son to her husband. The prohibition of Nanda Pandita and of Mr. Sutherland does not apply to the adoption of the son of a wife’s sister or of the son of a wife’s brother, and consequently even according to Nanda Pandita and Mr. Sutherland the adopted person was not in fact legally ineligible for adoption by the widow on her husband’s behalf. That adoption would have been good if the widow had received authority from her husband to adopt to him. An adoption of a son by a widow to her husband with his authority, and an adoption of a son to herself are, as every student of the Hindu law knows, two totally different questions, and are not to be confounded; in adopting a son to her husband with his authority, the wife or widow, as the case may be, acts as her husband’s agent. The authorities which show that a wife’s brother or his son, or the son of a wife’s sister may be adopted are given in the notes to paragraph 118 of Mr. Mayne’s Hindu Law and Usage.

130. The next case, in which the legality of the adoption of a sister’s son by a member of one of the three regenerate classes was questioned which came before this Court was that of Parbati v. Sundar I.L.R. 8 All. 1. That case was before this Court in 1885, and the two learned Judges before whom it came considering themselves bound by authority declined to consider the question of the legality of the adoption. The fact was that question was in that case irrelevant. So far as I am aware, there had bean no decision of this Court or of the Sudder Dewani Adalat of these provinces which in any way precluded them from considering the question as to the legality of the adoption. There was no case, so far as I have been able to ascertain, in which any usage amongst Hindus subject to the School of Benares prohibiting such an adoption had been found, or had been even attempted to be proved. If the attention of those learned Judges had been drawn to the passage which I have quoted from the judgment of their Lordships of the Privy Council, in The Collector of Madura v. Moottoo Ramalinga Sathupathy 12 Moo. I.A. at p. 436, and if they had considered the question to be relevant, they would doubtless have attempted to ascertain whether the prohibition of Nanda Pandita and Mr. Sutherland had been received by the Benares School of Hindu Law which governed the district with which they had to deal, and whether that prohibition had in that district been sanctioned by usage. That decision in I.L.R. 8 All. 1, has been cited as an authority that the rule of Mr. Sutherland, as limited to the three regenerate classes, had been affirmed by this Court. In my opinion, as an authority for the proposition that any such rule either in 1885 or at any time was of force in these provinces, it is useless. That case went on appeal to Her Majesty in Council. Their Lordships L.R. 16 I.A. 186, reversed the decree of this Court on another point, and as to the question of adoption merely said: “If it were necessary to determine the point, their Lordships would probably have little difficulty in accepting the opinion of the High Court that a Hindu Brahman cannot lawfully adopt his own sister’s son.” I do not think that their Lordships would hold that that observation precludes this Court from considering the matter.

131. The next case in this Court on the subject of the adoption of a sister’s son by a Brahman was that of Chain Sukh Ram v. Parbati I.L.R. 14 All. 53. In that case two appeals were heard together. In one of those appeals Musammat Parbati, who was the appellant in the case reported in I.L.R. 8 All. 1, was a respondent, and in the other of those cases Musammat Sundar, who was the respondent in the case in I.L.R. 8 All. 1, was a respondent. The original suits in which those two appeals arose had been tried in the Court of First Instance after the Judges of this Court had in Parbati v. Sundar I.L.R. 8 All. 1, declined to consider the question of the legality of the adoption of a sister’s son considering themselves bound by authority to hold that such an adoption was invalid. Consequently in the two later suits evidence was called from Muzaffarnagar, Meerut, Bulandshahr, Aligarh, Delhi, Saharanpur, Muttra, Etawah and Cawnpore, to prove that there was a custom amongst Bohra Brahmans by which the adoption of a sister’s son was valid. When those suits came in appeal before this Court, it was. strongly contended that the question as to whether such a custom could be valid was concluded adversely to the custom by their Lordships of the Privy Council in Sundar v. Parbati L.R. 16 I.A. 186, in the passage which I have already quoted. Mr. Justice Tyrrell and I held that we were not precluded from considering the question of custom, and after pointing out that the alleged rule of Hindu law which prohibits amongst the regenerate classes the adoption of a sister’s son, or a daughter’s son, had in many parts of India been varied by custom or had possibly never been followed, and that grave doubts had been raised as to the authenticity of the principle that the person to be adopted must be one who by a legal marriage with his mother might have been the legitimate son of the adopter, assumed for the purposes of the appeal before us, but did not decide, that Mr. Sutherland’s view on the subject was correct, and proceeded to try the issue as to the alleged custom amongst Bohra Brahmans in these provinces. We found as a fact on the evidence that the custom amongst Bohra Brahmans of these provinces to adopt a sister’s son was proved, and we held that the custom was valid and good in law. That Bohra Brahmans belong to one of the many divisions of Brahmans and consequently belong to one of the three regenerate classes of Hindus cannot be doubted. That case proves that when put to the test of evidence as to the usage of at least one important branch of the Hindu community in the northern parts of these provinces the prohibitions of Nanda Pandita and of Mr. Sutherland have been entirely disregarded as binding by that branch of Brahmans; it proves no more, but it suggests that it would be judicially rash to hold, except upon clear evidence, that the prohibitions of Nanda Pandita and Mr. Sutherland have been accepted as binding by any of the three regenerate classes of Hindus of these provinces.

132. There are three cases bearing on this question of adoption mentioned at pages 18 and 19 of Morley’s Digest. They are cases numbered 58, 59 and 60 and were respectively decided in 1810, 1815, and 1819. I have been unable to ascertain whether or not the parties in these cases respectively were subject to the School of Benares. In case No. 58 it was decided in 1810, that an adoption by a Brahman of his sister’s son was valid. In case No. 59 it was decided in 1815 that a Brahman could not adopt his sister’s son, as such an adoption imports incest. In case No. 60, it was decided in 1818 that among Brahmans, a widow cannot adopt her uncle’s son, as she could not be his mother on the ground of incest.

133. As the cases to which we were referred which were decided in Madras and Bombay, and in which it was held that amongst the three regenerate classes an adoption of a sister’s son, or of a daughter’s son or of the son of a mother’s sister was invalid, related not to Hindus of the Benares School or of these provinces, but to schools of Hindu law in districts with which we in this Court in this case are not concerned, and as it appeared to me from a consideration of those cases that it was, not by the people of those schools and districts, but by the High Court Judges on behalf of the people and contrary to the wishes and usages of the people, that the prohibitions and interpretations of the Dattaka Mimansa of Nanda Pandita, of the Dattaka Chandrika, and of Mr. Sutherland had been accepted and adopted, I thought it unnecessary to refer to those decisions. However, as it appears that one, if not both, of the Judges of this Bench who are in the minority, appears to consider that the questions as to the authority to be allowed to those commentaries, the questions as to the true construction of the text of Saunaka and the question as to the onus of proof in this case are practically concluded by the decisions in those cases in Madras and Bombay, it is necessary for me to refer to them, and I shall do so as briefly as I can. To prevent the establishment of a precedent in this Court I think it advisable to point out that the decision of a High Court in India is not binding upon any other of those High Courts, except in cases to which the principle of res judicata applies, and that when that principle does not apply a High Court although it should give due consideration to the reasons stated by another High Court for its decision, is not bound to follow that decision unless it agrees with it.

134. The earliest decided case in Madras of which we have a report in the Library of this Court is Narasammal v. Balaramacharlu Mad. H.C. Rep. 1862-3, 420. That case was from the Andhra country, and I infer from the judgment that the Madras High Court considered that, although an adoption of a sister’s son by a Brahman might be valid in the Dravida country, such an adoption in the Andhra country could not be supported even by proof of a custom. The learned Judges said: “This is a case, then, in which it is sought to set up a supposed custom, which has never received the sanction of judicial authority, against the express language of the greatest authorities. We are strongly of opinion that such customs cannot, even if proved to exist, operate in a Court of Justice bound to administer the law.” The first observation to be made on that passage is that if no custom could be received as valid until it had received the sanction of a Court of Law, it is impossible that any custom could ever have been established as valid; and as the learned Judges stated that the case before them was one of first impression, they, apparently holding that view as to the proof of a custom, consequently scouted the idea that there could be a valid custom for such an adoption and decided the case on “the express language of the greatest authorities” who were according to them–Mr. Sutherland in his Synopsis, Nanda Pandita in his Dattaka Mimansa and the author of the Dattaka Chandrika, and paid no attention to what Mr. Ellis had written, or to what Mr. Justice Strange bad, according to them, laid down in the second edition of his manual–“That usage has sanctioned the departure from the rule to the extent that there (the Madras Presidency) a daughter’s son or a sister’s son may be adopted.” The rule referred to was the prohibition of Nanda Pandita and Mr. Sutherland. It is to be observed that the Full Benches of the Madras High Court did not take the same view as to how a valid custom might be established when they held that the Brahmans in Eranjoli Illath Vishnu Nambudri v. Eranjoli Illath Krishnan Nambudri I.L.R. 7 Mad. 3, had established a valid custom amongst Nambudri Brahmans to adopt a sister’s son, and in Vayidinada v. Appu I.L.R. 9 Mad. 44, where they held that a valid custom exists amongst Brahmans in Southern India to adopt a sister’s son and a daughter’s son. The learned Judges in Narasammal v. Balaramacharlu may, for all I know, have been correct in assuming that in Madras the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika were of the number of “the greatest authorities.”

135. The next case in Madras was Jivani Bhai v. Jivu Bhai Mad. H.C. Rep., 1864-5, 462. That case was decided upon another point, but this is what the learned Judges said on the question of adoption: “On the point of the validity of the adoption of the son of a person with whom the adopter could not have intermarried, there will be found great conflict of authority amongst the Pandits,” but none whatever upon the authorities. They are all perfectly consistent in declaring such adoptions invalid. It will perhaps be found that the allegation of custom in this case will be found to amount simply to an allegation that people do that which the law has forbidden.” That was a sweeping assertion. We are not told what were the authorities which “are all perfectly consistent in declaring such adoptions invalid.” Possibly Manu, the Mitakshara and several other authorities of the School of Benares, none of which suggest any such prohibition, were in 1865 not considered by those learned Judges to be authorities in Madras or Southern India.

136. The next case in Madras was Gopalayyan v. Raghupatiayyan Mad. H.C. Rep. 1871-2, 250. That is a case which should be carefully studied by any one who is anxious to ascertain how far High Courts in India have, in setting up the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika as the sole law to be followed by Hindus on this question of adoption, disregarded and trampled upon the usages of the people. It was a case of the adoption of a sister’s son by a Brahman. The Civil Judge found on evidence that a custom to make such adoptions was valid. He said in his judgment–“If it were now attempted to be declared that such adoptions were illegal in Southern India, there would be only one course to pursue, viz. a similar one to that some years ago acted upon in England in the matter of marriage with deceased wife’s sisters, that is to pass an Act declaring all such adoptions already made to be legal, but to prohibit them in future. Otherwise the most frightful confusion would be imported into very many families in this district alone.” According to the Madras High Court the particular Civil Judge was a Judge of “great experience,” but as the High Court considered that according to “the writers of all schools,” the adoption by a Brahman of his sister’s son was not valid (who those writers were we are not told), they remanded an issue as to the existence of a customary law, and in doing so gave two directions, of which the following is the most important: “The evidence should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were, acting in accordance with law, and this conviction must be inferred from the evidence.” “In return to this issue the Civil Judge (E.F. Webster) found (on a consideration of oral evidence alone) ‘ that the custom has been shown to be uniform because uninterrupted. That the existence of the custom goes back as far as 134 years, and that the publicity of the acts, the general acquiescence of the people in those acts and the opinions of those amongst the people who are acquainted with the Shastras that such adoptions are valid, all go distinctly to show a conviction among the people that they were acting in accordance with law, and I therefore find the issue sent down in the affirmative.” One would have thought that in Madras, at any rate, upon that evidence and that finding this fetish of the Dattaka Mimansa of Nanda Pandita would have been laid for ever. But it was not so; the High Court found that “there was no evidence justifying the setting up of a rule of law opposed to all authorities, and specifically to the one declared by almost the only skilled witness examined in favour of the custom to be binding in the very district in which it was sought to enforce it.” What were the authorities which prevented the High Court from acting on that evidence?

137. The next two cases in Madras were the Full Bench cases of Eranjoli Illath Vishnu Nambudri v. Eranjoli Illath Krishnan Nambudri I.L.R. 7 Mad. 3, and Vayidinada v. Appu I.L.R. 9 Mad. 44, in which, respectively, the custom, amongst Nambudri Brahmans to adopt a sister’s SOD, and the custom in Southern India amongst Brahmans to adopt a sister’s son and a daughter’s son, was held valid notwithstanding the previous decisions of that Court and notwithstanding Mr. Sutherland, the Dattaka Mimansa of Nanda Pandita and the Dattaka Chandrika. Neither of these commentaries are referred to in the judgment in the former of those two cases, and in the latter of those two cases’, although the text of Saunaka as given in the Dattaka Mimansa of Nanda Pandita is discussed and compared with the text of Saunaka as given by another commentator, not one word is said in the judgment about the text said by Nanda Pandita to be a text of Sakalya. The Full Bench evidently placed no reliance upon the latter text.

138. The next reported case in Madras is Minakshi v. Ramanada, I.L.R. 11 Mad. 49. That case was decided on that part of the Dattaka Mimansa of Nanda Pandita which was a commentary on the text of Saunaka; and again no reference is made in support of the opinion of the Court to the alleged text of Sakalya. In that case one important matter was that the Court held that Mr. Sutherland had mistranslated the concluding words of paragraph 20 of Section II of the Dattaka Mimansa of Nanda Pandita. In that case the Court did not refer to the Dattaka Chandrika.

139. The result of a consideration of the reported cases from Madras appears to me to be that whenever the Madras High Court permitted the parties to call evidence to contradict the Dattaka Chandrika and the Dattaka Mimansa of Nanda Pandita, the result was that the prohibitions of those two commentaries were discredited and were proved not to have been accepted by the people.

130. I shall now briefly refer to the three cases decided in Bombay of which the reports are accessible to me, and in which the factum of the adoption was found. There was one case in ‘Bombay, and there may have been more, in which the factum of the adoption was not proved.

141. The first case in Bombay of which I have a report is Ganpatra Vireshvar v. Vithoba Khandappa 4 Bom. H.C. Rep. A.C. 130. Notwithstanding the attempts which have been made to explain away the decision in that case on the statement, which appears to be well founded, that the parties were in fact Sudras, yet the references in the judgment to the case in the Privy Council which had been relied upon in support of the validity of the adoption of a sister’s son, which in tact had. taken, place, leads me to the conclusion that Sir Richard Couch, C.J., and Newton and Warden, JJ., Considered that the parties were Vaishyas, one of the three regenerate classes of Hindus, when they held that the adoption of a sister’s son’ having taken place could not be set aside. The arguments of the Vakils on each side depended according to the report on the supposed fact that the parties belonged to one of the three regenerate classes and no one had at any time suggested that the adoption of a sister’s son by a Sudra would not be valid.

142. The next case in Bombay is Gopai Norhar Safray v. Henmant Ganesh Safray and Ganesh Ramchavdra Safray I.L.R. 3 Bom. 273. In that case the Bombay High Court, disregarding the previous ruling of its own Court in Ganpatra Vireshvar v. Vithoba Khandappa 4 Bow. H.C. Rep. A.C. 130, held that the members of the three regenerate classes were absolutely prohibited from, and incapable of, adopting a sister’s son or a daughter’s son or the son of any other woman whom they could not marry by reason of propinquity, and that the burden of proving a special custom to the contrary lay upon him who alleged the custom. The Court accepted the text said by Nanda Pandita to be a text of Sakalya without any enquiry as to its authenticity. One of the authorities relied upon in that case was the Dattaka Chandrika which the Court supposed to have been the work of Devanda Bhatta; another of the authorities relied upon was Luchmeenauth Rao Naik Kaliya v. Musammat Bhina Base 7 S.D.A., N.W.P. 441, which had not decided, as it was assumed by the Bombay High Court that it had, that the adoption of a sister’s son by a Brahman in these provinces was invalid; two of the other cases relied upon were Narasammal v. Balaramacharla, Mad. H.C. Rep. 1862-3, 420, and Gopalayyan v. Raghupatiayyan Mad. H.C. Rep. 1871-2, 250, upon which I have already commented.

143. In Bhagirthibai v. Radhabai I.L.R. 3 Bom. 298, the Court followed the decision to which I have last referred.

144. I have now referred to all the cases of which I am aware and to the reports of which I have access in which the prohibitions of Nanda Pandita and Mr. Sutherland were adopted. It appears to me that the Courts on the authority of Mr. Sutherland or of Sir William Macnaghten and of those who echoed their statements accepted the prohibition of Nanda Pandita and his glosses and interpretations of texts and applied them to the Hindus in most of those cases without any enquiry at all, and in some of them without any adequate enquiry, as to whether those prohibitions, those glosses and interpretations, and those texts were justified or had ever been accepted by the Hindus of the schools to which the cases related. Further, it appears to me that in the remainder of those cases the Judges acted on the assumption that on questions of adoption the usages of the people were to be completely disregarded and to be treated as not worthy of consideration, if, unfortunately for the people, their usages conflicted with the prohibitions of Nanda Pandita and of Mr. Sutherland.

145. So much confusion has been imported into this case by the unwarranted assumption that the Hindus of these provinces who are subject to the School of Benares have moulded their usages so as to bring them into accordance with the rulings of High Court Judges of Madras and Bombay, that I must point out that a dispassionate consideration of the reported cases from Madras shows that those rulings have not had the effect, even in Madras, which we are asked to assume that they have had in these provinces. No matter what may have been the effect of those rulings upon the usages of the people in Madras and Bombay, what we have to act upon in this case is the law of the School of Benares.

146. So far as this point before us is concerned, I consider that the question as to whether amongst the three regenerate classes in these provinces which are subject to the Benares School of Hindu Law, an adoption of a sister’s son, of a daughter’s son, and of the son of a sister of the mother of an adopter is, according to the texts of the Hindu law, permissible or is prohibited is not concluded by authority, and we are entitled to express our opinion upon it in this case. There is in my opinion absolutely no proof, clear or otherwise, that the prohibitions of Nanda Pandita and Mr. Sutherland against such adoptions have ever been received by the Benares School of Hindu Law and sanctioned by usage in these provinces; indeed case XII in the second volume of Macnaghten’s Hindu Law and the case in 7 S.D.A. N.W.P. 441, suggests to my mind that no such prohibition had down to 1852 been recognised or adopted in these provinces. Further, in my opinion, it has not been shown that any text of the Hindu law of the Benares School contains any such prohibition. In my opinion, it has not been shown that the adoption in this case, if it in fact took place, by Madho Singh of his mother’s sister’s son was prohibited or illegal by the law of the Benares School which applies in these’ provinces and to the parties. If it were necessary, I would be prepared to go further and to bold that the adoption of a son of a mother’s sister amongst the three regenerate classes of Hindus subject to the School of Benares is not only not prohibited, but is valid. I would set aside the decree under appeal on this preliminary point and remand the case under Section 562 of the Code of Civil Procedure.

Knox, J.

147 I have had full opportunity for carefully studying the very-able and exhaustive judgment of the learned Chief Justice. It would be waste of time to go over the same ground. I concur fully in holding that what the respondents ask us to accept as an undisputed doctrine of Hindu law cannot be accepted as such; that it was for the respondents to establish that the. so called undisputed doctrine of Hindu law under which they impeach the adoption of Bhagwan Singh had been accepted in and sanctioned by the usage of the Benares School, and that as they have not done this the case must be remanded under Section 562 of the Code of Civil Procedure.

148. The texts pressed upon us by the respondents for acceptance are texts from the Smriti of Saunaka and a text said to be a text of Sakalya.

149. On the texts from the Smriti of Saunaka, Nanda Pandita in his Dattaka Mimansa bases all the several reasons he puts forward for pronouncing that the adoption of a daughter’s son, a sister’s son and a mother’s sister’s son is invalid. The fragment said to be from Sakalya is added as a text corroborating his teaching upon the subject.

150. Dr. Buhler in a very interesting paper reproduced in the Journal of the Asiatic Society, 1866, p. 149, gives the text and translation of a manuscript known to Sastris as the Brihat Saunaka Smriti. It is termed Saunakya Karika, and is the work which Nanda Pandita and other writers on adoption quote. Dr. Buhler collated his manuscript with the text as reproduced in the Dattaka Mimansa, the Dattaka Chandrika, the Vyavahara Mayukha and the Sanskara Kaustubha with this result. The first of the two passages on which Nanda Pandita relies, as quoted by Nanda Pandita, differs materially from the text as quoted by other commentators, and it also differs from the manuscript in the possession of Dr. Buhler. The passage as quoted by all the commentators consists of two ordinary slokas, and of the text of those slokas there are no less than five different readings. The Dattaka Chandrika alone agrees with the Dattaka Mimansa as to the language of the original text. As Nilkantha in the Vyavahara Mayukha quotes the original text, the inference is that this form of adoption is valid amongst all classes, Sudras included. The text of Dr. Buhler’s manuscript favours the readings given by Nilkantha, though differing from it. By substituting a “but” for an “and” the Dattaka Mimansa and the Dattaka Chandrika bring out a prohibition. But the Dattaka Mimansa alone goes further and inserts half a sloka which runs as follows:

Which means that “amongst the three castes beginning with the Brahmans a sister’s son is nowhere adopted.”

151. This half sloka is not to be found in the text as reproduced by any of the other commentators, and, coming in as a half sloka by itself, it raises the suspicion that it is a passage interpolated into the original text in order to strengthen the reading of the preceding text where it differs from the texts as given by the other commentators.

152. In the second of the texts on which Nanda Pandita relies there is a reading which, if the true one, would most seriously affect the value of the comments made by Nanda Pandita. It is the text which was quoted so often at the hearing and which contains the word. The latter half of this word is exactly reproduced in the Greek (sic) and its literal meaning is “bearing the shadow.” Nanda Pandita translates it as “bearing the resemblance of a son,” and on this one word he builds up the whole of his theory that the boy must be one who was capable of having sprung from the adopter through Niyog. If the original text does not contain the word the ground work for all this doctrine fails, and the fabric built upon it melts into thin air. The author of the Sanskara Kaustubha also quotes the same text from the Smriti of Saunaka, but, according to him, the text runs:

153. A reading which at first blush seems more natural and suitable. It means “the boy having been adorned with clothes and ornaments and having come under the shadow of an umbrella.” If this reading be the true reading of Saunaka’s text, not even the ingenuity of Nanda Pandita could have evolved out of the idea of “Niyoga.”

154. Even if the reading given by Nanda Pandita is the accurate one, I still cannot and do not accept the strained interpretation which he brings out of. The natural meaning is that the boy, who before adoption was no son of his adoptive father, now bears the representation of a son. I am not prepared to abandon this natural meaning and to accept the confused array of errors which Nanda Pandita has evolved. The subject has been so fully treated by the learned Chief Justice that I will say no more than that I fully concur with what he has said on Nanda Pandita’s comments on his texts.

155. Is it strange that I should view with some distrust the meaning given in the Dattaka Mimansa when I find such material differences in the reading of both the texts quoted by Nanda Pandita as the authority for his law? I am not ignorant of the fact that the Vyavahara Mayukha and the Sanskara Kiustubha are not authorities in the Benares School, but all profess to reproduce a genuine and identical text of a Dharmasastri. Some one must have read or remembered wrongly the original text, and, in the absence of evidence, how am I to decide which was the true version of the text as it stood in the original?

156. It is impossible to examine critically the small fragment said to be quoted from Sakalya. It stands without beginning, without end, and with no reference as to the work from which it is taken. It may not be Sakalya’s at all. Nanda Pandita is known to have erred in references before. It may be a text of Sakalya, but, without the context, I decline to draw any inference of any kind from it.

157. These criticisms would be totally uncalled for and out of place if there were before me evidence that the Benares School had taken Nanda Pandita’s reading of Saunaka as the correct one, or given to his interpretation of it the sanction of usage But it is otherwise when I am asked to accept them as genuine and undoubted texts of Hindu law accurately quoted and accurately interpreted.

I would answer the reference in the manner proposed by the learned Chief Justice.

Blair, J.

158. I concur in the order proposed by the Chief Justice and in the reasoning by which he has arrived at his conclusion. I am not satisfied that Nanda Pandita has been accepted in the provinces governed by the Mitakshara as an undoubted authority upon the law of the Benares School. I think the texts cited by him are by no means certain to be accurate and complete, or to have been correctly construed by him and later commentators. In the absence therefore of evidence of usage having the force of law, I must decline to impose upon the Hindu community restrictions which are not proved to have obtained their general and continued sanction.

Burkitt, J.

159. I fully concur in the very elaborate and exhaustive judgment which has just been pronounced by the learned Chief Justice, and in the terms of reasoning on which it is founded. I will only add that that judgment does not impose any restriction on any class of Hindus in the matter of adoption. It does not make it compulsory on any Hindu to adopt his daughter’s son, or his sister’s son, or the son of his mother’s sister. It does no more than lay down that such an adoption, if made, is not invalid according to the law of the Benares School. I quite fail to see how such an exposition of the law of that school can have the effect of “shaking settled titles,” as my brother Banerji appears to apprehend.

160. I would set aside the decree under appeal, and would remand the case under the provisions of Section 562 of the Code of Civil Procedure to the Court against whose decree this appeal is made, with directions to proceed to determine the suit on the merits.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

73 queries in 0.470 seconds.