1. This appeal raises an important question as to the validity of an adoption by an unchaste widow among the three regenerate classes. The suit out of which this appeal arises was filed by the three minor daughters of one Bawaji Jiwaji through their next friend, Abhesing, for a declaration that the adoption of defendant No. 1 by defendant No. 2 is invalid and that the alienations of Bawaji's property by defendant No. 1 are ineffective. Bawaji died about the year 1928 leaving behind him his three minor daughters and his widow Baiji, defendant No. 2, and a minor son named Bhika who died in his infancy. Defendant No. 2 is said to have been living in illicit intimacy with defendant No. 3 and she claims to have taken his son, defendant No. 1, in adoption. After his alleged adoption defendant No. 1 alienated Bawaji's property to defendants Nos. 4 to 8. Hence the minor plaintiffs filed this suit through their next friend to have those alienations set aside alleging that defendant No. 1 was not the validly adopted son of Bawaji, that there was no adoption in fact, and that even if Baiji took him in adoption, it was invalid by reason of her unchastity. During the pendency of the suit plaintiffs Nos. 1 and 2 attained majority and they elected not to proceed with the suit. Hence the suit was proceeded with only on behalf of minor plaintiff No. 3. Defendant No. 1 also died during the pendency of the suit and his widow Bai Suraj was brought on record as his legal representative. She contended that her husband had been taken in adoption by defendant No. 2 and that the adoption was valid. Defendants Nos. 2 and 3 remained absent and put in no written statement. The other defendants contended that Bai Baiji, defendant No. 2, had taken defendant No. 1, Sursing, in adoption with all religious ceremonies and that, therefore, the plaintiffs had no right to the declaration sought for. The lower Court held that the factum of the adoption of defendant No. 1 by defendant No. 2 was proved, and that although it might be held that defendant No. 2 was unchaste and was living with defendant No. 3 since 1931, yet the adoption was not invalid on that ground. The suit was, therefore, dismissed with costs and plaintiff No. 3 has presented this appeal through her next friend.
2. There is ample evidence to prove the factum of defendant No. 1's adoption. The adoption is alleged to have taken place on May 1, 1930, in the presence of three priests and several villagers. Datta Homa was performed and the acts of giving and taking took place in front of the house of defendant No. 2. Dalsukhram who officiated as the priest on the occasion describes the details of the ceremony. He says that in his presence defendant No. 3 offered his son in adoption to defendant No. 2 and that she accepted the offer and took defendant No. 1 in adoption in the presence of several Brahmins and other villagers. Two other witnesses Someshwar and Mani-shankar have also deposed to the same effect. They assisted Dalsukhram in the performance of the ceremony and acted as Varuna-Brahmins. They too state that defendant No. 3 gave defendant No. 1 in adoption and defendant No. 2 took him in adoption in their presence. Chorashi-dinner was given on that day to all the Brahmins of the village. Somabhai and Shivabhai swear that such a dinner was given. They were not present at the time of the ceremony but they state that a dinner was given on account of the adoption of defendant No. 1 by defendant No. 2. At the time of adoption a group photograph was taken and the photographer has been examined to prove it. It shows defendant No. 3 giving his son, defendant No. 1, in adoption to defendant No. 2. In the photograph appear the three plaintiffs, the priest and defendants Nos 1 to 3. The plaintiffs' next friend was asked to identify these persons in the photograph, but he evaded it by saying that he was unable to identify any person in the photograph. On May 29, 1930, a formal deed of adoption was executed by both defendants Nos. 2 and 3 and was registered. Thus every possible precaution was taken to see that the evidence regarding the factum of adoption was complete. When both the giver and the taker were ready to complete the adoption, there was no reason why any essential part of the ceremony should Have been omitted. The learned Subordinate Judge who examined the witnesses was satisfied that they were stating the truth and held that defendant No. 1's adoption by defendant No. 2 was duly proved. We agree with that finding.
3. Although there is no clear evidence to prove the criminal intimacy between defendants Nos. 2 and 3, yet from the various circumstances brought on record, especially from the fact that defendants Nos. 2 and 3 were living together in a field near Pandoli, and that since they left the village in 1931 they are living together to this day, the learned Subordinate Judge has come to the conclusion that they must have been living in criminal intimacy. It is true that they have not come forward to give evidence in this case. The obvious reason is that they are no longer interested in supporting the adoption as the adopted son has alienated all the property which had come to him as Bawaji's adopted son. Moreover they are said to be living in Cambay State and their presence could not be enforced. In these circumstances the fact that they have not come forward to give evidence in this case is of little consequence ; but assuming that they are living in criminal intimacy and that at the time of the alleged adoption defendant No. 2 was unchaste, we still find that defendant No. 1's adoption by her cannot be, held to be invalid on that ground.
4. The parties are Girasia Rajputs or Kshatriyas, belonging to one of the three regenerate classes. In Sayamalal Dutt v. Saudamini Dasi (1870) 5 L.R. 362 it was held by Norman J. (sitting singly) that an unchas'e widow could not make an adoption even though she might be acting under an express authority from her husband, but in Basvant Mushappa v. Mallappa Kallappa I.L.R (1920) Bom. 459: 22 Bom. L.R. 1400 this Court has held that a Shudra widow, though unchaste, can make a valid adoption. Mr. Shah, on behalf of the appellant, contends that in the case of Shudras no datla-homa is necessary, and therefore, even though the adopting widow is unchaste, she can make an adoption. It is only the religious ceremonies that an unchaste woman cannot perform, and as no such ceremonies are required among the Shudras, there is no bar to her making an adoption. But in the case of a widow belonging to one of the three regenerate classes, when the boy to be adopted is not of the same gotta, daita-homa is essential to complete his adoption, and as an unchaste widow cannot perform it, she is incapable of adopting such a boy. This contention, however, cannot be upheld, since a widow can delegate the performance of the ceremonies to another, and as held in Ramu Bala Sankpal v. Jana Dala Patil : (1941)43BOMLR920 , where the performance of the ceremonies of the adoption was delegated by the widow to somebody who could perform them, the circumstance that she was unchaste at the time of the adoption does not invalidate the adoption. In Lakshmibai v. Ramchandra I.L.R (1896) Bom. 590 an untonsured Brahmin widow had taken a boy in adoption and the homa had been performed by her relative at her instance. In upholding the adoption Ranade J. observed (p. 593):
there is nothing surprising.in her.asking her elderly relation to complete the Homa and other religious portion of the celebration, which, indeed, as a woman, she could not directly take on herself to perform.
5. The purpose of an adoption by a widow is the continuation of the family line and the spiritual benefit of her deceased husband, and it would be hard that her impurity or want of chastity should deprive him of the benefits, which, according to Hindu ideas, accrue to him from the adoption. It may now be taken as well-settled that a widow of one of the three regenerate classes, though unchaste or otherwise impure, can make a valid adoption, provided she performs the physical act of taking the boy in adoption and delegates the performance of the necessary religious ceremonies to some one and those ceremonies are duly performed by him. Mr. Shah, however, contends that there is no evidence in this case that defendant No. 2 thus delegated the performance of the religious ceremonies to any of the priests who were present there. He relies upon the assertion made by defendants Nos. 4 and 8 in their written statement that defendant No. 2 adopted defendant No. 1 after performing all the necessary ceremonies.
6. It appears that this question was never raised during the trial. The case of Ramu Bala v. Jana Dala had not then been reported and the question of delegation of the performance of the religious ceremonies was not mooted. The officiating priest, Dalsukhram, stated in his examination-in-chief that the homa was performed and the cocoanut was offered to the sacrificial fire, but no question was put to him in his cross-examination as to who offered the coconut or who performed the homa. The other priest, Manishankar, who acted as the Varana-Brahmin, described the ceremony as follows:
Defendant No. 3 holding the hand of defendant No. 1 and placing it in that of defendant No. 2, said that defendant No. 1 was her son since then. Defendant No. 2 placed defendant No. 1 in her lap and said that defendant No. 1 was since then her son. Shastric ceremony was made. Cocoanut was offered in hama. Photos were taken.
7. The first two sentences are in the active voice showing who held the hand of defendant No. 1, who placed the hand of defendant No. 2 and who took the boy in adoption, whereas the other sentences regarding the ceremony, the offering of a cocoanut etc. are in the passive voice. The witness was asked no questions on these points in the cross-examination. Thus there is nothing in the evidence to indicate that defendant No. 2 herself performed the religious ceremonies or offered oblations to the sacrificial fire.
8. In fact women of even the regenerate classes are incompetent to perform personally such ceremonies or to offer oblations, whether they are chaste or unchaste. According to Manu (Chap. IX, verse 18) that is to say, 'for women there can be no rite with sacred texts; so is the law settled '. In Vyavahara Mayukha also Nilkanth, dealing with adoption, says:
Even a woman is entitled like the Sudra to adopt since there is a text ' women and Sudras have the same rules of conduct (prescribed for them). Vasistha (Dh. S. 15, 2-9).
9. Golapchandra Sarkar says in his Hindu Law of Adoption, Tagore Law Lectures,, Second Edition, page 381, as follows:
Suldras and women labour under the same religious disability, and the necessary logical consequence of the ruling that homa is not essential to an adoption made by a Sudra, would be that it is not necessary also in an adoption by a widow of a Brahman or any other regenerate person, for she, like a Sudra, can neither recite the Vedic prayers nor personally perform the homa. And the religious ceremonies should, therefore,, be dispensed with in her case for the same reasons as in the case of Sudras.
10. It is not necessary to go so far as to say that datta-homa is not at all necessary in the case of an adoption by a widow of one of the three regenerate classes, but as pointed out in Ramu Bala v. Jana Dala, such homa can be performed by someone else by delegation. In Sarkar's Hindu Law, eighth edition, page 195, the learned author says:
Widows, like Sudras, can perform the homa rite vicariously through the sacerdotal priests. The sacred texts are omitted if women or Sudras perform any religious ceremony.
11. It is well-known that women, even of one of the three regenerate classes, never perform a sacramental rite or a homa personally at any religious function, and if it is to be performed, they merely pronounce the vow and delegate its performance to a priest: p. 292.
12. This delegation need not be express, and when it is said that a woman performed1 all the necessary ceremonies at the time of an adoption, it is to be presumed that those which she could not personally perform were duly performed by some one on her behalf. The evidence in this case shows that homa was performed, and as no witness says that defendant No. 2 herself performed the homa or offered oblations to the sacrificial fire, it must be presumed that the homa was duly performed, that is; to say, performed by some one at her instance. The plaintiff has nowhere alleged that the adoption is invalid as the homa was not properly performed. Even in the memorandum of appeal it is not stated specifically that defendant No. 2 herself performed the homa or other rituals essential to the adoption, and that on that ground the adoption is invalid.
13. In these circumstances we must hold that the adoption and the necessary ceremonies were properly performed and that the adoption is valid. The appellant is therefore, entitled to no relief in this case and the appeal is dismissed with costs.