1. Two questions of law have been argued in this appeal-one relating to the validity of an adoption, the other relating to estoppel. The facts which give rise to the question of adoption are not in dispute now and may be briefly stated. One Yeshwant died leaving four sons-Venkatesh by one wife, and Ganpat, Madhav and Narayan by another wife. Venkatesh died many years ago after adopting his step-brother, Narayan. Narayan died leaving a son-Kashinath, who was the defendant in the trial Court and is the respondent here. There was a division among the brothers, whether during or after the life-time of Venkatesh does not appear to be clear and is not material. Ganpat died sonless, leaving a widow, who died in 1903. Madhav had a son, Balkrishna, who died leaving a son Gajanan, who was the plaintiff in the Court below and is the appellant here. The dispute relates to Ganpat's share in a certain allowance, which, the plaintiff says, he is entitled to share equally with the defendant, the latter contending that he is the exclusive owner of Ganpat's interest in the allowance. The parties are Prabhus by caste. It is common ground now that if the adoption of Narayan by Venkatesh be valid, the plaintiff must succeed.
2. In the lower Courts the defendant urged that the adoption by Venkatesh of his younger half-brother Narayan was invalid. The lower Courts have differed as to the validity of the adoption, the trial Court holding it to be valid, the appellate Court holding it to be invalid.
3. In the Second Appeal before us, the same question has been raised. Mr. Setlur, for the appellant, contends that the adoption of a half-brother is not invalid according to Hindu law, that the long course of decisions of this Court is in favour of the view that the restrictions recommended by Nanda Pandita are not really binding, and that the doctrine of Niyoga, upon which the lower appellate Court has relied in deference to the opinion expressed by Dr. Bhattcicharya in his treatise on Hindu Law, affords no basis for invalidating an adoption, which is otherwise valid-at least so far as this Presidency is concerned. Mr. Jayakar, for the respondent, strongly relies upon the opinions of Nanda Pandita expressed in the Dattaka Mimamsa in his commentary on the expression 'bearing the reflection of a son' (putrachhyayavaham) in Caunaka's text, in paragraphs 16 to 20, particularly paragraphs 17 and 19 in Chap. V. It is argued that the Mitakshara and the Vyavahara Mayukha do not afford any assistance on this point, and that in matters of adoption the opinions of Nanda Pandita are entitled to great weight and ought to be given effect to Mr. Jayakar concedes that the restrictions arising out of the necessity of a valid marriage between the natural mother and the adoptive father being possible are merely recommendatory except as to the three specified cases of a daughter's son, sister's son and mother's sister's son mentioned in Cakala's text. But his argument is that the test of a valid marriage being possible between the natural mother and the adoptive father is quite distinct from that based on the doctrine of Niyoga or of incestuous connection (viruddhasambandha) and that though the restrictions arising from one are held to be recommendatory, the restrictions arising from the other two tests are not so held. He does not lay any stress on the restrictions based upon the rules connected with the practice of Niyoga. But he maintains that the restrictions based upon the prohibition of incestuous connection (viruddhasambandha) have nowhere been held to be merely recommendatory, and ought to be held mandatory. The adoption in question is vitiated, it is argued, as any connection between the step-mother and the step-son would be incestuous. It is also argued that the sentiment of the community favours such restrictions and that the sentiment is clearly expressed by Nanda Pandita.
4. We have given our best consideration to these arguments, particularly as Mr. Jayakar has insisted that in none of the decided cases has this point been considered and decided, and that in none of the cases except one it was necessary to consider it. We are, however, unable to accept the suggestion that the argument is new or that it has not been considered, or that it was not necessary to consider it, on previous occasions; and quite apart from the previous decisions we are unable to think that the argument is sound.
5. It has been held by this Court in a number of cases that the opinions of Nanda Pandita, when they are not supported by any text of the Smriti writers are, generally speaking, recommendatory and not mandatory : see Bai Nani v. Chunilal I.L.R. (1897) 22 Bom. 973, Vyas Chimanlal v. Vyas Ramchandra I.L.R. (1899) Bom. 413; Ramchandra v. Gopal I.L.R. (1908) 32 Bom. 619; 10 Bom. L.R. 948; Yamnava v. Laxman Bhimrao I.L.R. (1912) Bom. 533, and Ramkrishna v. Chimnaji : (1913)15BOMLR824 . Their Lordships of the Privy Council have indicated substantially the same view as to certain opinions of Nanda Pandita in Srimati Uma Deyi v. Gokoolanund Das Mahapatra and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (1898) L.R. 26 IndAp 113. It is quite true that in some of these cases the opinions of Nanda Pandita that were under consideration were not the same as those with which we are concerned now. But it is difficult to say that of the last three cases of this Court above referred to In the case of Yamnava v. Laxman Bhimrao I.L.R. (1912) 36 Bom. 533 Sir N. Chandavarkar J., after considering these very opinions of Nanda Pandita (in paragraphs 16 to 19 of Section V of the Dattaka Mimamsa), expressed his conclusion in the following clear and definite terms :- 'it is a reasonable inference to draw from the whole of the Dattaka Mimansa that Nanda Pandita intended that anybody could be adopted, so long as he was not within the cases specified as prohibited. So long as, that is, he was not the sister's son, or the daughter's son, or the mother's sister's son.' This decision was followed in the case of Ramkrishna v. Chimnaji : (1913)15BOMLR824 . It is difficult to see how the argument based on the test of virudhhasambandha could have been passed over in Ramkrishna's case without consideration when the decision of the District Judge in that case which was reversed by the High Court, was based substantially on that ground. We have heard nothing in the course of an interesting argument from Mr. Jayakar, which can induce us to think that there is anything in the decisions of this Court bearing on this point, which requires to be reconsidered.
6. Apart from the decisions, we would find no serious difficulty in ariving at the same conclusion and in holding that the opinions expressed by Nanda Pandita in his commentary on the expression putrachhyayavaham are merely recommendatory and not mandatory in the absence of any support from any Smriti writer. It is not suggested that the particular opinions expressed in paras 17 and 19 of Section V are supported by any such authority.
7. We have considered the dictum of Muttusami Ayyar J. in Sriramulu v. Ramayya I.L.R. (1881) Mad. 15 that the adoption of a half-brother is invalid and the decision of the Sadar Divani Adalat of Bengal in Baboo Runjeet Sing v. Baboo Obhye Narain Sing (1817) 2 S.D. 245 that the adoption of an elder brother by a younger brother is invalid. We are not sure that the Madras High Court would now accept the dictum of the learned Judge as finally decisive of the point. But apart from that, in determining the weight to be attached to the opinions of Nanda Pandita on this point in Western India, we must prefer to be guided by the decisions of our Court.
8. The learned District Judge might well have paused before setting aside an adoption made more than fifty years ago, acquiesced in by all the parties concerned during this long period and questioned for the first time by the present defendant apparently under the inducement of resisting the plaintiff's claim, and might have scrutinized the opinion of Dr. Bhattacharya more closely, particularly when the learned author himself expresses a doubt as to the applicability of the restrictions based on the rules of Niyoga to this Presidency : see Bhattacharya's Hindu Law, 3rd edn., pp. 169-170.
9. We, therefore, hold that the adoption of Narayan by Venkatesh is valid. Having regard to the view we take of the adoption, it is not necessary to decide the question of estoppel which has been argued in this appeal.
10. The result is that the decree of the lower appellate Court is reversed and that of the trial Court restored with costs of this and the lower appellate Court on the defendant.