N.J. Wadia, J.
1. This appeal arises out of a suit filed by the respondent Raghavendra to recover possession of certain property which originally belonged to one Hanmant Narayan Diwan on the ground that respondent was the adopted son of Hanmant, having been adopted by Hanmant's widow Laxmibai on April 19, 1935. Hanmant died on August 15, 1911, leaving behind him a widow Laxmibai and a son Narayan alias Babu. He had also a brother named Gopal and a sister Krishnabai who was married to one Venka-tesh Sholapurkar. The appellant Krishnaji, who was defendant No. 1 in the suit, is the son of Hanmant's sister Krishnabai. The appellant's case was that Hanmant's son Narayan alias Babu was a congenital idiot and that on this account Laxmibai adopted the appellant on May 7, 1923, during the lifetime of her son Narayan. He contended that this adoption was a valid one, since Narayan being a congenital idiot and disqualified from inheriting, and unable to fulfil the religious obligations of a son by offering oblations to his ancestors, Laxmibai was entitled to adopt and adopted the defendant with the consent of Gopal; that defendant No. 1 therefore became a coparcener with Gopal in the joint family, and after Gopal's death, which occurred on September 5, 1930, he became the sole owner of the property ; and that the plaintiff's adoption being subsequent to that of defendant No. 1, Was invalid. Narayan the son of Hanmant died on December 9, 1931, and it was after his death that the plaintiff was adopted. The plaintiff's case was that Narayan was weak of intellect but that he had not been a congenital idiot; that he had been born with a normal intelligence but that in his third or fourth year he sustained a fall from a swing which resulted in some injury to the brain and that thereafter he gradually became an idiot. He continued in that condition till his death. According to the plaintiff Narayan was not disqualified from inheriting the property, and during his lifetime his mother was not entitled to make a valid adoption ; the adoption of defendant No. 1, even if it had taken place, had been brought about by defendant No. l's natural father Venkatesh who had persuaded Laxmibai into making it on the representation that Narayan on account of defective intelligence could not be considered as a son, and that she was entitled to adopt during his lifetime. It was also the plaintiff's case that at the time of Hanmant's death in 1911 his only surviving brother Gopal was not a member of the family, having already gone by adoption into another family, the Desai family, in the year 1900. On these contentions the learned Judge framed issues whether the plaintiff's adoption was proved and was valid in law ; whether the plaintiff proved that Gopal had gone out of the family by adoption ; whether defendant No. 1 proved his adoption ; whether it was valid ; and whether it was proved that Narayan was congenitally an idiot. Although the plaintiff had at first challenged the factum of defendant No. l's adoption, he subsequently admitted it. He had also contended that the defendant's adoption was invalid on the ground that. it was an adoption of, a sister's son, but this contention also was subsequently given up. The learned Judge held that the plaintiffs adoption had been proved. He further held that Gopal Narayan had gone out of the family by adoption in 1900. He found on the evidence that Narayan Hanmant was a congenital idiot. With regard to the defendant's adoption he held that although the factum had been proved, the adoption was not valid because, even though Narayan Hanmant was a congenital idiot, his mother was not entitled to adopt during his lifetime. He therefore held that the plaintiff's adoption was valid and made a decree in favour of the plaintiff. Defendant No. 1 has come in appeal.
2. There were several other defendants in the case, Nos. 2 to 10, who were tenants of defendant No. 1. Only two of them, defendants Nos. 6 and 7, had appeared at the trial and raised some contentions with regard to a land which had been taken by them on lease from defendant No. 1. These contentions were decided against them. They have not appealed.
3. The questions which arise in the appeal are, first, whether Narayan Hanmant was a congenital idiot as alleged by the defendant; secondly, whether Gopal the brother of Hanmant had gone out of the family by adoption prior to Hanmant's death ; and, thirdly, whether Laxmibai could make a valid adoption to her husband during the lifetime of her son Narayan.
4. On the first question the conclusion arrived at by the learned First Class Subordinate Judge is in my opinion amply supported by the evidence on the record. On behalf of the defendant as many as three different doctors were cited, all of whom had at different times examined Narayan and who have stated that Narayan had been born an idiot. One of them is Dr. Hebbalkar, a medical practitioner in Sankeshwar, the village in which the family of Hanmant lived, and who was the family doctor of this family. He has, said that he saw Narayan within the first month of his birth and that he had been treating him from his second month up to the time of his death. According to him the boy could not eat, sit, speak or hear, and could not recognize anybody. He has denied the story put forward on behalf of the plaintiff that the boy sustained some injury from a fall when he was three or four years old and that this affected his brain. Dr. Savanur, who examined the boy when he was eight or ten years old and again a year later at the request of the mother, says that he came to the conclusion that he was a congenital idiot, and that he told his mother that the case was incurable. The second occasion on which he saw the boy was a year alter his first examination when the boy was taken to the Civil Surgeon, Lt.-Col. Candy, for1 examination in order to obtain a certificate about his condition. He says that the Civil Surgeon examined the boy in his presence and put various questions to the boy's mother. The Civil Surgeon, Lt.-Col. Candy, examined the boy in May, 1923, and has given a certificate that he found him to be suffering from ' congenital idiocy ', and that he was also deaf-mute, the powers of speech and hearing having remained undeveloped from infancy. In the face of this evidence the statements of various witnesses examined by the plaintiff who say that they had seen the boy and that he was quite normal till he was three or four years old, cannot be entitled to any weight. The facts that on Hanmant's death the property was transferred to the name of Narayan in the revenue records, that kabulayats in respect of the lands were taken in his name, and that his name was entered in respect of the patilki rights in the village, would not necessarily negative the allegation that the boy was a congenital idiot. I agree therefore with the finding of the learned trial Judge on this point.
5. The next question is as to Gopal's having gone into adoption in another family. The evidence on this point is undoubtedly very conflicting. It is admitted by the defendant that on Hanmant's death the family property was entered in the name of his son Narayan and that kabulayats with regard to the lands were taken in Narayan's name. It is also admitted that on defendant No. l's adoption in 1923 the properties were entered in his name though Gopal did not die till 1930. It is impossible that this could have happened if Gopal had been at the time a member of the joint family. There is no direct evidence to prove Gopal's adoption, and conflicting statements have been made by the parties on both sides at different times, on this point. Laxmibai has said in her evidence that Gopal had gone in adoption. But in suit No. 72 of 1928 filed by Sitabai, the widow of Hanmant's brother Ram-chandra, for a declaration that the adoption of defendant No. 1 by Laxmibai was void, she had alleged that Gopal had gone into adoption in another family. In the written statement filed by the defendants in that suit, who were the present defendant No. 1 and Laxmibai, they denied this fact, and alleged that the adoption of defendant No. 1 had been made with the consent of Gopal. In 1925 defendant No. 1 himself, in a statement (exhibit 329) made by him before the Karbhari of a math in the Kolhapur State, produced a genealogy of the Diwan family in which he showed Hanmant's brother Gopal as having been given in adoption into another family. Laxmibai, who was at the time supporting defendant No. l's adoption, made a similar statement (exhibit 253) before the Karbhari. Long before defendant No. l's adoption in connection with the heirship inquiry after Hanmant's death Laxmibai had made a similar statement (exhibit 213) before the Mam-latdar in 1912. As against this defendant No. 1 relies on the fact that in 1902 Gopal had filed a suit to establish his adoption into the Desai family on May 17, 1900, and he withdrew this suit in 1903 with liberty to file a fresh suit, but never filed any. It is also proved that in 1921 the three daughters of Narayan Desai brought a suit to challenge the adoption of one Hanmant by their step-mother Laxmibai on the ground that it was made during the lifetime of Gopal (brother of Hanmant Diwan) who had been already adopted by the senior widow Kamalabai. To this suit Gopal was not made a party. It was held in appeal that Gopal's adoption had not been proved. But in spite of this, the evidence as to the actual conduct of the parties concerned, and especially of Gopal himself, is such as to show very satisfactorily that Gopal must have gone out of his natural family by adoption. On no other hypothesis can his conduct in allowing the property of his natural family to be entered, first in the name of his nephew Narayan, and afterwards in the name of defendant No. 1, be explained. This conduct on his own part and on that of others is a far more convincing indication of the real state of things than his failure to establish his adoption in the Courts, a failure which may have been due to his negligence in not taking prompt steps to assert his rights. Considering the evidence on both sides I am of opinion that the learned Subordinate Judge was right in holding that Gopal had gone out of the family by adoption.
6. This brings me to the third and the most important point in the case, whether Laxmibai could validly adopt defendant No. 1 during the lifetime of her natural son Narayan. It has been found that Narayan was a congenital idiot, and as such he would have been disqualified from inheriting. The question whether the existence of a disqualified son is a bar to an adoption is not free from doubt. According to Manu (cited in the Dattaka Mimansa, Section I (9), Stokes' Edition) : ' A son of any description must be anxiously adopted by one who has none : for the sake of the funeral cake, water, and solemn rites ; and for the celebrity of his name.' The Dattaka Mimansa in dealing with the question who may adopt cites the text of Atri : 'By a man destitute of a son only, must a substitute for the same, always be adopted : with some one resource (yasmat tasmat prayatnatas) for the sake of the funeral cake, water, and solemn rites.' (Dattaka Mimansa, Section (3) ). In v. 4 the author explains that a man destitute of a son (aputra) is one, to whom no son has been born or whose son has died ; and in v. 6 he says that the use of the word ' only' signifies the incompetency to adopt of one having male issue. In v. 13 he explains that ' son ' includes grandson and great grandson. But nowhere in the first section dealing with the questions by whom, at what time, and for what purpose, a son may be adopted, does Nanda Pandita say that the word ' aputra ' (a man destitute of a son) includes a man who has a disqualified son or a son who owing to physical defects is incapable of performing the religious obligations of a son. The learned advocate for the appellant relies on the opinions expressed by several well-known authorities on Hindu law in support of his contention that a son who by reason of imbecility or any other defect is incapable of providing for his father's spiritual advancement is no son at all, and that the existence of such a son would be no bar to an adoption. Macnaghten points out (Principles and Precedents of Hindu Law, 3rd edn., Ch. VI) that the etymology of the Sanskrit word for a son (putra) clearly evinces the necessity by which every Hindu considers himself bound to perpetuate his name, and cites the text of Manu ' Since the son (trayate) delivers his father from the hell named put, he was, therefore, called putra by Brahma himself.' Sutherland in his Synopsis of the Hindu Law of Adoption (1834 edn., p. 148) says :
The primary reason for the affiliation of a son, being the obligatory necessity of providing for the performance of the exequial rites, celebrated by a son, for his deceased father, on which the salvation of a Hindu is supposed to depend, it is necessary that the person proceeding to adopt, should be destitute of male issue, capable of performing those rites. By the term issue, the son's son, and grandson, .are included. It may be inferred, that if such male issue, although existing, were disqualified, by any legal impediment, (such as loss of caste,) from performing the rites in question, the affiliation of a son, might legally take place.
7. Strange (Hindu Law, 2nd edn., p. 77) says :
The right of adoption is in one destitute of legitimate male issue, competent to the performance of his funeral ceremonies ; never having had any, or having lost what he had. The right of inheriting, and that of performing for the ancestor his funeral obsequies being correlative, if, by any of the legal disabilities,] as by degradation from caste, by insanity, incurable disease, or otherwise, living issue have become disqualified in law for the former, the effect for the purpose in question being, the same as if none existed, it is inferred that the right to adopt attaches.
8. Sarkar Shastri (Hindu Law, 8th edn., p. 157 and Hindu Law of Adoption 2nd edn., p. 196) expresses the same opinion, and refers in support of his-view to the Dattaka Mimansa II. 62, and to the passages from Strange quoted above. Sir H. Gour (Hindu Code, 4th edn., p, 168) expresses the same opinion and also refers to the Dattaka Mimansa II. 62, in support of his view. The same view is also taken by Mayne (10th edn., p. 203).
9. The passages in the Dattaka Mimansa I. paras. 3, 6 and 13, and the Dattaka Chandrika Ch. I, paras. 3 and 6 to which Sutherland refers in support of his view, do not contain any reference to a disqualified son. The Dattaka Mimansa Ch. I, 4 and the Dattaka Chandrika Ch. I, 4 both comment on what is meant by 'a man destitute of a son (aputra)' in the texts of Manu and Atri, but neither includes in that description a man who has a disqualified son. The only passage in the Dattaka Mimansa on which this view is sought to be based is Section II, verse 62, to which Sarkar Shastri and Gour refer. The passage occurs in Section II of the work dealing with ' who is to be-adopted '. In the preceding paragraphs the author discusses the suggestion that a brother's son may be regarded as a son though not adopted, and then in para. 62 (Sutherland, p. 31) he says :
Should this be objected : it is erroneous. Participation, in the obsequies and:, estate, has been declared, to be the result of filial relation, in this passage ('Among these, the next in order is heir, and presents the funeral oblations, on failure of the preceding') : for otherwise, like the impotent person and the rest, one, who merely bore the semblance of being a son, would be of no use ; and in this text, ('By a man, destitute of a son only, must the substitute for the same, always be adopted, &c.;') an imperative mode of expression, being used, the filial relation of one unadopted' cannot exist.
10. Sarkar Shastri (Hindu Law of Adoption, p. 196) renders the passage as follows :
It (i.e., the passage from Yajnavalkya) declares that the capacity to present oblations and to participate in heritage constitutes sonship ; for, if that be wanting, the mere existence, of filial relationship, as of an impotent or the like disqualified SOD. does not constitute it.
11. The question whether this passage in the Dattaka Mimansa can be accepted as an authority for the view that the existence of a disqualified son is no bar to an adoption has been discussed very fully by Shah J. in Bharnrappa v. Ujjangauda I.L.R. (1921) 46 Bom. 455 The facts in that case were that one Bharmagauda adopted the plaintiff Bharmappa during the lifetime of his grandson Ujja, who was suffering from dumbness which was both congenital and incurable. After Bharmagauda's death the adopted son sued to recover the property from Ujja. The trial Court decreed the suit, but the decree was reversed in appeal by the High Court. The fact that Ujja was suffering from dumbness which was both congenital and incurable was held proved. It was also held, following the decision of this Court in Vallabhram Shivnarayan v. Bai Hariganga (1867) 4 B. H. C. R. 135 that Ujja was excluded from inheritance on account of his dumbness. But after a consideration of the authorities both ancient and modern on the subject, Shah J. came to the conclusion that the fact of the grandson suffering from dumbness by birth did not render the adoption valid which would have been otherwise invalid on account of its having been made during his lifetime. After stating that according to the texts of Saunaka and Manu the essential condition for a valid adoption is that the adopter must be sonless, and after mentioning the fact that Yajnavalkya provides, after referring to the disqualifying circumstances in Ch. II, Section X, that the sons of those who would be excluded from inheritance are not subject to any disability, provided they are free from similar defects, the learned Judge says (p. 459) :
It is clear from these passages that neither Yajnavalkya nor Vijnaneavara would have favoured the view that a person having a son subject to any of the defect* mentioned by them could be treated as sonkss.
He points out that (p. 460) :
In the Vyavahara Mayukha there is no indication in tha chapter relating to adoptions that a ton subject to any defect which would exclude him from inheritance was no son at all.
12. He then proceeds to consider the passage in the Dattaka Mimansa, Section II, para. 62, which was relied on before him, as it has been before us, as showing that persons subject to disqualifying defects are no sons at all, and points out that the reference in this passage to persons excluded from inheritance is incidental, that the meaning of the passage is not clear, and that apart from the difficulty of determining the true meaning of the reference to ' impotent person and the rest' this much is clear that there is no such opinion expressed by Nanda Pandita in the first section where he deals with the question as to who can adopt. The conclusion at which he arrived is thus stated by him (p. 461) :
I am not, therefore, prepared to accept the contention that the opinion of Nanda Pandita is that a son subject to a disqualifying defect is no son at all as regards the power of the father to adopt, nor am I prepared to give effect to an opinion, not supported by any Smriti expressed incidentally in the course of an argument on another point, and not stated at the place where he would be expected to state if it were his opinion.
13. These remarks and the grounds on which they are based refer to all disqualifying defects generally, and not merely to the particular defect of dumbness with which that case was concerned.
14. The view taken in this case was dissented from in a later decision of the Madras High Court in Nagammal v. Sankarappa Naidu I.L.R. (1930) Mad. 576 in which Sundaram Chetty J., sitting singly, held that the existence of two sons who were not only disqualified for inheritance, but also incompetent to perform: obsequial and other ceremonies by reason of virulent leprosy, was no bar to an adoption by their father. In support of hisi conclusion he relied on the passage in the Dattaka Mimansa, Section II, para. 62, which has been referred to above, and on the religious motive underlying adoptions, and said that this latter aspect did not seem to have been given due weight in the reasoning adopted by Shah J. in Bharmappa v. Ujjangauda I. L. R. (1921) 46 Bom. 4S5. I am, with respect, not prepared to accept this view. The question is not free from; difficulty, and the weight of opinion of modern writers on the subject is undoubtedly in favour of the view taken in Nagammal v. Sankarappa Naidu. But the judgment in Bharmappa's case shows that Shah J. was fully aware of the opinions of modern writers who differed from his view.
15. It has been contended for the appellant that the judgment in Bharmappa's case is not binding on us as it deals only with the case of a disqualification arising from dumbness, and that it does not apply to other kinds of disqualification. But the remarks of Shah J., which I have quoted above, show that he was referring to all kinds of disqualification, and the realsons underlying his view, with which, with respect, I agree entirely, are certainly applicable to a disqualification arising from congenital idiocy quite as much as to one arising from congenital dumbness. The view taken by the learned trial Judge that Laxmibai could not adopt during the lifetime of Narayan and that defendant No. l's adoption was therefore invalid is correct.
16. The decree will be confirmed and the appeal dismissed with costs.
17. I agree. I think that on the question of law we are bound to follow the decision of Shah J. in Bharmappa v. Ujjangauda(2) though his view is opposed to that of the majority of the writers of text books, as shown by my learned brother. Though that case was concerned with the question of the adoption of a person who was suffering from congenital and incurable dumbness, Shah J.'s observations on the legal question involved have a reference to all disqualifying defects generally and not merely to the particular disqualification of such dumbness. In my opinion his view is justified by the Hindu texts, though it may at first sight appear to be not altogether logical and is not in consonance with the ideas of modern writers. It is true that an idiotic son is excluded from inheritance. The text quoted on this point in. the Mitakshara is :
An impotent person, or outcast, and his sons, one who is lame, a madman, an idiot, a blind man, and a person afflicted with an incurable disease, and, others (similarly disqualified), roust be maintained, excluding them, however, from participation.' (Yajnavalkya, ii. 141.)
18. If a person suffers from incurable idiocy he would also no doubt be physically incapable of performing the funeral rites of his deceased father.. The purpose of adoption is given by Atri in these words : ' for the sake of the funeral cake, water, and solemn rites.' (Dattaka Mimansa, Section I, verse 3.)
19. Manu gives the purpose as ' for the sake of the funeral cake, water, and solemn rites, and for the celebrity of his name,' (Dattaka Mimansa, Section 1, verse 9.) The purpose of the adoption, therefore, being the performance of the funeral rites of the deceased father and also the perpetuation of his name, one would normally expect that one having a son suffering from incurable idiocy would be given the right to adopt a son, and this indeed is the view taken by the majority of text books writers. But the word aputrena in the text of Atri quoted in the Dattaka Mimansa, Section 1, verse 3, has been explained as referring to one to whom no son has been born or whose son has died, on the authority of a text from Saunaka : ' one to whom no son has been born or whose son has died, having fasted for a son, etc.' What then could have been the reason for the omission of one who by reason of some physical defect is incapable of performing the funeral rites as well as of inheriting Can the reason be that in the days when the texts were written people used to have larger families than in the present days, and it was unusual and rare for a person to have no son at all except one disqualified for inheritance as well as for the performance of the funeral rites It is true that in Section 2, verse 62, of the Dattaka Mimansa, there is a passage suggesting that ' the impotent person and the rest' is ' one who merely bore the semblance of being a son ' and ' would be of no use.' This verse as translated by Stokes is somewhat difficult to understand, and I find the translation of it as given in Sarkar Sastri's Hindu Law of Adoption at page 196 more intelligible. That translation is as follows :-
It (i.e., the passage from Yajnavalkya) declares that the capacity to present oblations and to participate in heritage constitutes sonship ; for, if that be wanting, the mere existence of filial relationship, as of an impotent or the like disqualified son, does not constitute it.
20. Here we find that the capacity to present oblations and the capacity to participate in heritage have been put on the same footing. That would be a reason for interpreting aputrena as including one incapable of inheriting or performing the funeral rites. The reason why such an interpretation has not been put. on the expression appears to me to be contained in verse 13 of Section 1 of the Dattaka Mimansa, where it is said that the word ' son ' is ' inclusive also of the son's son and grandson, for (through these) the ex elusion from heaven, denounced in such passages as ' Heaven awaits, not one destitute of a son ' is removed'. The possibility seems to have been taken for granted that an idiotic son may beget a son who would exclude the capacity of the grandfather for adopting. Such a possibility would be a ground for not adopting a son, but would, of course, be no ground for a sonless man to adopt an idiotic person.
21. As to inheritance the rule is that the sons of persons suffering from disqualifying defects, if free from such defects themselves, are not excluded. (Mitakshara, Section X, verse 9). Verse 7 of the same section recognises the possibility of such defects being cured ' by medicaments or other means' : 'If the defect be removed by medicaments or other means at a period subsequent to partition, the right of partition takes effect, on the same principle on which ' When the sons have been separated, one, who is afterwards born of a woman equal in class, shares the distribution ' is based'. This shows that the power to inherit is not altogether lost by one suffering from a disqualifying defect, but it is suspended during the continuance of such defect. The power to perform the funeral rites must also have been similarly supposed to remain latent during the period the son remains an idiot; it would revive when he wa's cured or when he had begotten a. son who was able to perform such rites.
22. As to the spiritual aspect of the question of adoption, it is also to be remembered that a person having an idiotic son incapable of performing the-funeral rites was not regarded as having lost, on his death, the benefit of such rites, for they can be performed by other kinsmen. See the passage-quoted in v. 60 of Section II of the Dattaka Mimansa, viz., ' The son, the son of a son, the son of a grandson : like these, the offspring of a brother, or that of a sapinda also, are born, capable of performing obsequies.' (II. Cole. Dig. 624, dxiv.)
23. In view! of the recognized possibility of an idiotic son being cured and of his begetting a son free from disqualifying defects, and in view of the absence of a positive statement anywhere in the texts that the expression aputrena includes a person having a son incapable of inheriting or performing the funeral rites, I think that it would be stretching the texts too much to say that the conclusion of the majority of the text books writers on this point and the decision in Nagammal v. Sankarappa Naidu I.L.R. (1930) Mad. 576 are correct.
24. As to the other questions raised in this appeal, I agree with the findings of the learned trial Judge that Narayan was a congenital idiot and that Gopal, the brother of Hanmant, had gone out of his natural family by adoption prior to Hanmant's death. On the first point there is satisfactory evidence from the medical witnesses, and on the second point the conduct of Gopal himself, in allowing tha property of his natural father to be entered, first in the name of his nephew Narayan and afterwards in the name of defendant No. 1, seems to me to be fairly conclusive.
25. I agree, therefore, that the appeal fails and must be dismissed with costs.