Basil Scott, C.J.
1. This suit is filed by the plaintiff to recover possession of certain Vatan property which belonged to one Narsingrao who died in December 1910. The plaintiff claims to be the nearest heir of Narsingrao, and impleads the first defendant who claims to be the adopted son of the deceased and the 2nd and 3rd defendants who, it is said, are nearer heirs than the plaintiffs in the event of there being no adopted son,
2. Narsingrao was concerned in the murder of a Mahar many years ago, and having been found guilty was transported to the Andamans. He returned about the year 1884 from his transportation, and went to Benares before returning to the Bijapur District where his property was situated, and performed the prayaschitia or penance for purification prescribed by the Hindu texts. The fact that he performed this prayaschitta is proved to our satisfaction, as it was proved to the satisfaction of the lower Court.
3. The issues raised in the trial Court were whether the plaintiff was the nearest heir of Narsingrao; whether Narsingrao adopted defendant No. 1; whether he was competent to adopt on account of the conviction; whether the in competency was removed by the prayaschitta, he took ; and whether he took the prayaschitta. All these issues have been found against the plaintiff and in favour of the first defendant.
4. The question whether the plaintiff is the nearest heir of Narsingrao is immaterial, if the first defendant is proved to have been adopted by Narsingrao validly so as to vest in him on Narsingrao's death the property of the deceased.
5. The first question then to be considered is the question of fact: Did Narsingrao adopt the defendant. The first defendant's case is that he was adopted on the 6th of September 1910, and on the 22nd of November an adoption deed was executed by Narsingrao in his favour. The interval of time which passed between the date of the alleged adoption and the execution of the deed is strongly relied upon on behalf of the appellant as a suspicious circumstance which should induce the Court to hold that the adoption is not proved. If the fact of the adoption is satisfactorily established as having taken place on the 6th of September, there can be no doubt whatever that the adoption deed was the concluding part of the acts which Narsingrao thought necessary, for not only has the deed been attested by various witnesses, some of whom have been called, and believed by the lower Court, but Narsingrao had the document registered in his life-time and acknowledged his execution of the deed. The fact of the adoption on the 6th September is proved by the evidence of various witnesses. There are relations of the parties and there are caste men of the deceased and certain Lingayat witnesses also, all of whom speak to the factum of the adoption, and the document, Exh. 77, which is the deed acknowledged by Narsingrao before the Registrar, refers to the adoption as having taken place on the 7th of September.
6. The learned counsel for the appellant in order to parry the direct evidence of adoption has suggested various defects which he said should induce the Court to hold the adoption not proved. I have already referred to the interval which took place between the ceremony and the execution of the deed, which is one of the points relied upon. The learned counsel says that there was a state of pollution off and on in Narsingrao's family in consequence of which it is unlikely that anything would have been done in the matter of an adoption, and there were astrological objections to the performance of the adoption, which however relate to dates subsequent to that on which the ceremony is said to have taken place, and there was an unpropitious conjunction of planets during a time between the date assigned for the adoption and the date of the execution of the deed ; it is not however suggested that the unpropitious conjunction of Jupiter and Venus would invalidate a previously performed ceremony.
7. Then it is said that if the adoption had taken place on the 6th of September, the adopted son would have changed his name earlier than he did. He was in fact a schoolmaster who is on the rolls of the educational establishment under a particular patronimic, that of his natural father. It appears that until he got the authority of his superiors to assume the name of his adoptive father, he continued to sign himself in the school registers or attendances of pupils under the name of his natural father. His family name did not change with the adoption, as he was a Deshpande before and a Deshpande after the adoption. Another reason why he should not at once assume the name of his adoptive lather was, that as he passed into a Vatandar family it was necessary for him to advise the Collector upon the subject. These seem to be sufficient reasons in the circumstances of the case for the delay in the adoption of the new name. The delay itself is not sufficient having regard to the direct evidence of the adoption and the recital in the adoption deed, acknowledged by the deceased, for holding that there was no adoption in fact. We therefore have no hesitation in accepting the conclusion of the learned Judge upon the second issue that Narsingrao did adopt the defendant No. 1.
8. The third issue is whether he was competent to adopt on account of the conviction, and the fourth is whether the in competency was removed by the prayaschitta which he took. We have not been referred to any text or any judicial authority for the proposition that one who has become 'patita' (sic) owing to his having committed a murder is disqualified from adoption of a son. On the other hand the high authority of Mr. Mayne has been referred to by the learned counsel for the respondent who states that there seems to be no reason why the adopted son of a disqualified person should not succeed to all the property which had already vested in his father or which was acquired by him.
9. Now the property which we are concerned with in this suit is the share of Vatan property falling to Narsingrao on partition between himself and his coparcener, Swamirao. That share had been acquired by him on partition prior in date of his becoming a 'patita' by the commission of the crime of which he was found guilty. The author of the Mitakahara in dealing with the text of Yajnavalkya which relates to the exclusion of persons from inheritance in Section X of Chap. II, pl. 6 observes: 'They (i. e., disqualified persons) are debarred of their shares, if their disqualification arose before the division of the property. But one already separated...is not deprived of his allotment.' A person, therefore, who has already separated and obtained his share before his disqualification is not a person who is disinherited by reason of such defect, and if there is no prohibition of adoption by such a person, and if the highest authority obtainable is to the effect that the adopted son of such a person is not disqualified from inheriting to his father's property, it follows logically that the first defendant is entitled to inherit. This is the real question in the suit, although it its not raised as a specific issue in the lower Court or stated in the memorandum of appeal.
10. If it be necessary to go further, it may he pointed out that in pl. 7 Vijnanesvara says 'If the defect ha removed by medicaments or other means as penance and atonement at a period subsequent to partition, the right of participation takes effect, by analogy to the case of a son born after separation,' that is to say, that the effect of prayaschitta is to enable a disqualified person to reopen the partition and assert his right to a share in the property,
11. Again pl. 9 seems to tell against the contention of the appellant, 'The disinherison of the persons above described seeming to imply disinherison of their sons, the author adds : 'But their sons whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects', so that even in the case of one who has not acquired his property before pollution, and who has not performed such prayaschitta as would entitle him subsequently to assert his right to the property, his aurasa son would not be disentitled to succeed, presumably to the grand-father's property, while in the case of persons who have acquired their property before a pollution or defect, or who have performed satisfactory prayaschitta, and asserted their right thereafter successfully, there is no text which indicates any disqualification for inheritance in the natural or adopted sons of such persons.
12. For these reasons it appears to me that the conclusion arrived at by the learned Judge in favour of the first defendant is correct. I would, therefore, affirm the decree and dismiss the appeal with costs.
13. I concur. I desire to state briefly my reasons for the conclusion on the question of law that has been raised on behalf of the appellants as to the validity of the adoption of defendant 1 by the deceased Narsingrao. The contention is that the adoption is invalid, because Narsingrao was a patita at the date of the adoption ; and that a patita cannot make a valid adoption. He is said to be a patita within the meaning of the word as used in Yajnavalkya's verse and an explained by Vijnaneswara in the Mitakshara on account of his having committed the murder of a Mahar about the year 1864.
14. In the first placeit is not made out that Narsingrao was a patita at the time of the adoption in 1910. Narsingrao performed the necessary prayaschitta at Benares when he returned to India in 1885 after serving out the sentence of transportation for life. Vijnanesvara points out that if the defect be removed by medicaments or other means, the disqualification ceases to exist: (see Mitakshara, Ch. II, Section 10, page 7, Stokes' Hindu Law, page 457). The expression 'or other means', according to Balambhatti, would include prayaschiita (penance). Thus if the defect were capable of removal by penance, it had been removed in the present case. Further the word patita according to Vijnanesvara means brahmahadik and he includes a person guilty of a secondary sin (upapatak) among the persons indicated by the word adi in Yajnavalkya's verse. It is probable that Vijnanesvara interprets the word patita as meaning a person guilty of any of the mahapatakas enumerated by Yajnavalkya in the Prayaschitta Adhyaya, verse No. 227 beginning with the word brahmaha, and it is clear that he could not have meant to include in that term persons guilty of upapatalcas mentioned in verses Nos. 234 to 242. It may be, however, that Narsingrao was subject to the disqualification arising in consequence of his having committed a murder being a person indicated by the word adi as explained by Vijnaneshwara (See Mitakshara, Ch. II, Section X, para 3). The proposition, however, has no practical importance in this case as Narsingrao had already taken his share of the family property before he became thus disqualified : and according to the Mitakshara he would be deprived of his share if the disqualification arose before the division of the property, but as one already separated from his co-parceners, he would not be deprived of his allotment (Mitakshara, Ch. II, Section X, para 6, Stokes' Hindu Law, page 456).
15. The next question is whether Narsingrao could make a valid adoption assuming that he was otherwise disqualified though not a patita, from inheriting or claiming a share at the time of the adoption. No text or authority has been cited on behalf of the appellants to show that such an adoption would be invalid. It is conceded that an adoption is not a sanskara according to Hindu law. I see no reason to hold that a person subject to the disqualification, to which Narsingrao is assumed to have been subject at the time of the adoption, could not make a valid adoption. Mr. Jayakar has relied upon Mitakshara, Ch. II, Section X, paragraphs 9, 10 and 11 as allowing that a son other than an aurasa or kshetraja son is subject to the same disqualification as his father as regards inheritance and partition. This, however, does not affect the validity of an adoption by a person subject to a disqualification mentioned in Yajnavalkya's verse as explained by Vijnanesvara. The meaning is that an adopted son cannot claim any share in the property, to which his father is disqualified from putting forward any claim. l3ut there is nothing to prevent an adopted son from claiming the property already vested in the adoptive father on partition before the disqualification arose, though he may be prevented from claiming a share in the ancestral property not so vested. The adoption would be valid, but inflective for the purpose of scouring a share in the property, from which the adoptive father is excluded on account of the disqualification. Mr. Mayne has expressed the same opinion in his work on Hindu Law (8th Edition, Section 598, page 839). The author of the Dattaka Chandrika in Section VI, para 1, takes the same view, and suggests by implication that a disqualified person is not prevented from making an adoption though the adopted son may have no right to the estate of the paternal grand-father.
16. I am, therefore, of opinion that the appellants have failed to establish either that Narsingrao was patita at the date of the adoption: or that, assuming that he was subject to a disqualification at the time, he could not make a valid adoption.
17. It is not necessary to consider the question whether the plaintiff No. 1 who is the grand-son of the brother of Narsingrao is entitled to succeed in preference to defendants Nos. 2 and 3, who are the sons of Narsingrao's father's brother according to the Mitakshara.