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Kashibai Kom Bhagvant and anr. Vs. Tatla BIn Lakshman - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom221
AppellantKashibai Kom Bhagvant and anr.
RespondentTatla BIn Lakshman
Excerpt:
.....and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - this as well as the cognate question of the validity of the adoption of an only son, may probably be considered as settled in the high courts of the other presidencies. strange 'that with regard to both the prohibitions respecting an eldest and an only son, where they most strictly apply, they are directory only, and that an adoption of either, however blamable in the giver, would..........of a smriti writer prohibiting in express terms the adoption of an eldest son except an alleged text of vasishta: 'the eldest son should not be given in adoption', referred to by haridatta in commenting on the text of apastambha: 'the gift (or acceptance of a child) and the right to sell (or buy) a child are not recognized' translation of apastambha, p. 131, by george buhler, in his 'sacred books of the east. this text, it appears, is also mentioned by anantadeva, kasinath, upodhyaya, and balambhatta, but without referring it to any particular author. (see the vyavahara mayukha and the yajuavalkya smriti by rav saheb mandlik, p. 496). it is not found in three printed editions of vasishta and one manuscript, and as the authors of the mitakshara, mayukha and the dattaka mimamsa do not.....
Judgment:

Charles Sargent, Kt., C.J.

1. The decision in this case turns upon the question of the validity of the adoption of an eldest son. This as well as the cognate question of the validity of the adoption of an only son, may probably be considered as settled in the High Courts of the other Presidencies. In Madras the validity of the adoption of an eldest son was established in the case of Chinna Gaundan v. Kumara Gaundan Mad. H.C. R. 54 the decision being based principally on the opinion expressed by Sir T. Strange 'that with regard to both the prohibitions respecting an eldest and an only Son, where they most strictly apply, they are directory only, and that an adoption of either, however blamable in the giver, would nevertheless, to every legal purpose, be good according to the maxim factum valet quod fieri non debuit.' In Calcutta the adoption of an eldest son was held valid by Mr. Justice Markby and Mr. Justice Mitter in Janokee Debea v. Gopaul Acharjea I.L.R. 2 Cal 365 and that of an only son was held to be invalid by Sir Richard Garth, Chief Justice, and Mr. Justice Markby in Manick Chandar Dutt v. Bhuggobutty Dossee I.L.R. 3 Cal. 443. In this High Court the question as to the validity of the adoption of an only son was considered by the late Chief Justice, Sir M. Westropp, at great length in an exhaustive judgment in Lakshmapa v. Ramava 12 Bom. H.C. R 364 from which it may be gathered that although he declined, as not being necessary for the decision of the case, to give a positive opinion on the question whether a gift in adoption of an only son by his father is, in this Presidency void, the inclination of his opinion was strongly against its validity. As to the adoption of an eldest son, the question does not appear to have received judicial consideration since the cases before the Sadar Adalat referred to in the judgment of Sir M. Westropp at pp. 380-385, and in which the answers of the shastris and the decisions based on them were, as might be expected on a question of this nature, very conflicting. We have not been referred to any text of a Smriti writer prohibiting in express terms the adoption of an eldest son except an alleged text of Vasishta: 'The eldest son should not be given in adoption', referred to by Haridatta in commenting on the text of Apastambha: 'The gift (or acceptance of a child) and the right to sell (or buy) a child are not recognized' Translation of Apastambha, p. 131, by George Buhler, in his 'Sacred Books of the East. This text, it appears, is also mentioned by Anantadeva, Kasinath, Upodhyaya, and Balambhatta, but without referring it to any particular author. (See the Vyavahara Mayukha and the Yajuavalkya Smriti by Rav Saheb Mandlik, p. 496). It is not found in three printed editions of Vasishta and one manuscript, and as the authors of the Mitakshara, Mayukha and the Dattaka Mimamsa do not refer to it, although referring to the text of Vasishta which prohibits the adoption of an only son, grave doubts must necessarily rest on its genuineness. On the other hand, the other Smriti writers Bhandayana and Caunaka, as shown' by the texts set out in Sir M. Westropp's judgment 12 Bom. H.C. R 377 whilst prohibiting in strong terms the adoption of an only son, are silent as to that of an eldest. Passing to the commentators of the highest authority in this Presidency, we find the following texts in the Mitakshara, chap. I. Section xi, pl. 11: 'So an only son must not be given (or accepted); for Vasishta ordaina 'Let no man give or accept an only son' '; 'nor though a numerous progeny exist, should an eldest son be given: for he chiefly fulfills the office of a son, as is shown by the following text: 'By the eldest son as soon as born, a man becomes the father of a male issue.'' The same word 'anadhikar', literally 'want of authority', is used in the original in both sections, and the difference in the translation may be regarded as marking the comparative importance which Mr. Colebrooke attached to the prohibitions in the case of an only and eldest son. In the Mayukha, chap. IV, Section v, pl. 4 and 5, the author would seem to doubt the soundness of Vijnanesvara's conclusion from the text of Manu, that the adoption of an eldest son was prohibited, but in any case he treats the prohibition as regarding the giver only. Again, both the Dattaka Chandrika and Dattaka Mimamsa are silent as to the adoption of an eldest son, whilst prohibiting in express terms that of an only son. Lastly, if we consider the reason for the prohibition in the two cases, it is plain that whilst the one is based upon the religious duty of continuing the lineage for the obsequies of ancestors, the other cannot be regarded as more than the expression of a sentimental preference for the eldest son (and that, too, only in case he happens to be the first born) as being the first to make a man 'the father of a male issue,' for it was not attempted to be denied that the funeral ceremonies could be as effectually performed by the other sons in the event of the eldest being given in adoption. It was contended, however, and apparently with seriousness, that as 'the spiritual efficacy of the eldest son was exhausted,' the adoption could be of no spiritual benefit to the adopting father. We are unable to understand what may be meant by the expression 'spiritual efficacy.' The importance of having a son is, as stated by Vasishta, 'that he may raise up progeny for the obsequies.' Whether, therefore, we regard the texts in the Hindu books of authority in this Presidency, or the reason of such qualified prohibitions as are to be found in them, there would appear to be no sufficient ground for treating the prohibition of the adoption of an eldest son as more than admonitory or as creating any legal restriction. The decree of the Court below must, therefore, be confirmed, with costs.


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