1. The plaintiff in this case sued to recover possession of certain land as the next reversionary of the deceased Bhimappa.
2. The defense was that Bhimappa's widow had adopted Gangappa, and that Gangappa had alienated the property to the other defendants.
3. The plaintiff's claim must fail if the adoption is valid. Both the lower Courts have held the fact of the adoption proved, but they have found it to be invalid according to Hindu law.
4. Gangappa, the person adopted, was before adoption the first cousin (father's brother's son) of Bhimappa's father. The lower Courts have held the adoption to be invalid on the ground that Gangappa was in the position of an uncle to the deceased Bhimappa and that his adoption is opposed to the theory, upon which the law of adoption is based. The lower appellate Court has relied upon a passage in Steele's Law and Custom of Hindu Castes at Page 44 and certain observations in Mandlik's Hindu Law at Page 474.
5. In the appeal before us it has been contended that though the adoption may be opposed to the sentiment of the Hindu community and to the theory of adoption, in the absence of any prohibition based upon any Smriti, such an adoption ought not to be treated as invalid. Mr. Coyaji for the respondent has relied not only upon the passages referred to in the judgment of the lower appellate Court, but also upon the remarks in West and Buhler's Hindu Law at Page 1038, the opinions of Nanda Pandita in Dattaka Mimansa, Section V, Clause 17 and Section II, Clause 29-31, the observations of Golap Chandra Sarkar Sastri relating to incongruity of relationship in Tagore Lectures on the Hindu Law of Adoption in Chap. VIII (2nd Edn.), and the necessity of the adopted son bearing the resemblance of a son according to the expression putrachchhayavaham in Saunaka's text referred to in the Vyavahara Mayukha and the Dattaka Mimansa.
6. The parties are Lingayats; but I do not think that that circumstance makes any difference on the present question. The ground of invalidity, such as it is, is general and applicable to all those who are governed by Hindu law. It is not confined to the three regenerate classes. There is no special custom alleged in the present case, and the validity of the adoption must be determined with reference to the ordinary Hindu law.
7. The question that we have to consider is whether the adoption to A (by his widow) of his father's cousin (father's brother's son) is invalid. We are not concerned with the adoption of any nearer senior agnatic relation, and I do not wish to be understood as expressing any opinion as to the validity of such an adoption. That must be considered if and when such an adoption takes place, and the question as to the validity thereof is raised.
8. There is apparently no reported case on the point which we have to decide and none has been cited to us in the course of the arguments.
9. There is nothing in the Mitakshara or the Vyavahara Mayukha expressly bearing on this point. I mean there is no express prohibition to adopt the father's first or distant cousin. As to the opinion expressed by Nanda Pandita in the Dattaka Mimansa, Section V, Clause 17 relating to the paternal uncle, I am by no means clear that the word used there for paternal uncle, viz., pitrivya means anything more than father's brother but assuming that it includes an elderly relation in the position of the first cousin of the father, it is clear that the opinions expressed by Nanda Pandita in Clauses 16 to 20 have been held in a series of decisions of this Court ending with Gajanan Balkrishna Kashinath Narayan I.L.R(1013) 39 Bom. 410; 17 Bom. L.R. 372 to be recommendatory and not mandatory except as to the three specific cases of daughter's son, sister's son, and mother's sister's son as regards the three regenerate classes. The opinions are based on the ground of viruddka sambandha or the rules relating to Niyoga. Having regard to the current of decisions of this Court, Mr. Coyaji has not pressed this part of the argument.
10. As regards Clause 30 in Section II of the same book, it is clear that it can apply only to the father's brothers and not to the father's cousins. The text of Manu, upon which the opinions expressed in Clauses 30 to 83 are based, makes it clear that Nanda Pandita in Clauses 30 referred to the incapacity of an uncle (father's brother) and not of a person treated as being in the position of an uncle to be the object of adoption. He could not even mean father's half-brother according to his interpretation of the word ekajata used in Manu's verse (IX, 182), Thus Nanda Pandita's opinion expressed in that clause cannot help the respondent. Further with reference to one of Nanda Pandita's opinions based on his reading of the text of Manu, viz., that relating to the wife's brother's son in Clause 33, it has been held that it is merely recommendatory and not obligatory see Bai Nani v. Chunilal I.L.R. (1897)22 Bom. 973 and Puttu Lal v. Parbati Kunwar .
11. Mr. Coyaji has, however, contended that in the expression putrachchhayavaham the prohibition to adopt the father's first or any distant cousin who would be in the position of an elderly relation to the adoptive father, is necessarily involved quite independently of the considerations based on viruddha sambandha, or Niyoga. It is a significant fact, however, that no such prohibition is inferred in terms by the author of the Vyavahara Mayukha or even by Nanda Pandita anywhere apart from his inferences in paras 16 to 20, Section V, of the Dattaka Mimansa. Having regard to the tendency of the decisions in this Presidency, it is not safe in my opinion to infer any such prohibition as a rule of law. Even in the case of the adoption of an only son, upon which opinions are clearly expressed by the authors of the Mitakshara, Vyavahara Mayukha and Dattaka Mimansa, these opinions are held to be merely recommendatory and not mandatory : see Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (1809) L.R. 26 IA 113 and Vyas Chimanlal v. Vyas Ramchandra I.L.R.(1899) 24 Bom. 367; 2 Bom, L.R. 103.
12. There is no Smriti text laying down such a prohibition expressly, and I am unwilling to infer such a prohibition from the expression putrachchhayavaham, firstly, because in the specific cases of daughter's son, sister's son and mother's sister's son, as regards the three regenerate classes the prohibition is accepted as it is referable to the Smriti writers, Saunaka and Sakala, and not merely because it can be inferred from the expression according to the opinion of the commentators ; and, secondly, because the prohibition, if generally inferred, would apply so extensively and would be so important that Nilkantha and Nanda Pandita would have referred to it. From their omission to refer to this prohibition as inferable from the expression, I think that the expression suggests rather a rule of propriety at least as regards the first cousins and more distant senior relations than a positive prohibition. The adoption of such senior relations would be opposed to the sentiment of the Hindu community, and it may not be easy to dissociate the mandate from the recommendation. But on the whole I do not think that there is any legal prohibition to adopt the father's cousin.
13. I attach some importance to the consideration that the prohibition, if it is extended to a senior relation more distant than the father's brother, could not be properly restricted to the father's cousin, but would apply to any distant cousin of the father of the adoptive father. Mr. Coyaji contended--in fact he had to contend--that not only a first cousin but any distant cousin of the adoptive father's father or any elderly agnatic relation of the adoptive father would be ineligible for adoption as a matter of law. He conceded that the relations in the same degree as the adoptive father from the common ancestor would not be within the rule of ineligibility, though Mr. Mandlik would consider them ineligible for adoption as not being junior in rank to the adoptive father. The adoption of a cousin has been held not to be invalid by the Madras High Court: see Virayya v. Hanumanta I.L.R.(1890) Mad, 459. I think that if the prohibition really exists and is so extensive, it would be supported by far clearer texts than we have, and that it would be in consonance with the general trend of the decisions on this branch of the law of adoption to hold that the expression putrachchhayavaham implies a recommendation and not a mandate not to adopt the father's cousin and more distant senior relations.
14. As regards the observations of Steele, Mundlik, Sarkar, and West and Buhler, I think they are valuable, so far aa they are applicable, as indicating the sentiment but are insufficient for the purpose of establishing any rule of positive prohibition. In the passage in Steele's book, the reference to the paternal uncle may not be necessarily to the father's cousin; and apart from that it occurs in a passage containing rules of preference which are clearly recommendations and not positive rules of law. As to Mandlik's valuable criticism, it is noteworthy that the test of age has not been accepted in this Presidency as a definite rule of law: see Gopal v. Vishnu I.L.R. (1898) . 23 Bom. 250.
and the simple rule enunciated by him would apply to so many distant relations, that it rather suggests a counsel of propriety than a rule of law prohibiting all such adoptions. West and Buhler refer in a foot-note at Page 1038 of their book to a passage in Steele's Law and Custom of Hindu Castes at Page 184, which shows that it is recommendatory and not obligatory. As to Sarkar's observations based on the incongruity of relationship they stand on no better footing than Mr. Mandlik's criticism with reference to this point.
15. Assuming, without deciding, time the incongruity of relationship, apart from any consideration of viruddhu sambandha or of the rules relating to Niyoga, may afford a basis for invalidating an adoption, I do not think that it could be properly extended to the first cousin of the father of adoptive father or to the more distant elderly relations.
16. I think that there is considerable force in the argument, which has found favour with the lower Courts that the adoption of a cousin of the adoptive father's father is opposed to the theory of adoption ; but on the best consideration that I can give to the point, I have come to the conclusion, not without reluctance, that though such an adoption is opposed to the Hindu sentiment it is not prohibited by law, and cannot be treated as invalid.
17. The result, therefore, is that this appeal must be allowed and the plaintiff's suit dismissed with costs throughout on her.
Basil Scott, C.J.
18. I concur.