1. We feel unable to proceed with this matter, as there are certain matters of fact which are not before us, and so we propose to send the case back to the Joint First Class Subordinate Judge of Belgaum for him to take further evidence on the following issues:
(1) Whether it is necessary for the due performance of the datta homa ceremony that the widow could take part in it?
(2) This Court having decided as a matter of law, that if it is necessary for the widow to take part in the datta homa ceremony, she can, though unchaste, delegate her duties: whether that delegation can be made to the officiating priest or must be made to somebody else?
(3) Whether on the facts of the present ease delegation took place to the officiating priest, or whether the widow herself took part in the religious ceremony?
(4) Whether the datta homa ceremony is necessary when the giver and taker belong to Bharadwaj and Shrwatsa gotras respectively?
2. All parties to the appeal are to be at liberty to adduce any further evidence on these issues which they may see fit. Neither, party dissenting, we direct that the findings be returned within three months alter the record is received by the lower Court. The appeal will be adjourned sine die.
On receipt of the findings on the above .issues the appeal was further heard by Lokur and Gajendragadkar JJ.
3. This appeal arises out of a out filed by the minor plaintiff through his natural father Mr. Jamakhandi, pleader, as Ms next friend for a declaration that he is the legally adopted son of Dhondo Govind Kulkarni, the deceased husband of defendant 1, and for partition and possession of his half share in the suit property, on the ground that it was the joint family property of the said Dhondo and defendants 2 to 9 and that Dhondo had died in union with them. The plaintiff alleged that Dhondo having died without issue in 1910, his widow defendant 1 had taken him in adoption with all the necessary ceremonies on 28th October 1936. Defendant 1, Godubai alias Annapurnabai, supported the plaintiff's claim, but defendants 2 to 9 denied both the fact of his adoption by her and its validity. They alleged that as defendant 1 was leading a life of un-chastity after her husband's death, she was not competent to make any adoption and that the plaintiff's adoption was, therefore invalid. They admitted that Dhondo had died in union with them, but claimed that some of the properties in suit were their self-acquisition. The trial Court held that they had failed to prove that any of the properties in suit was their self-acquisition and that the plaintiff had proved the factum of his adoption by defendant 1. But it dismissed the suit on the ground that the adoption was invalid by reason of defendant 1's un-chastity after her husband's death. The plaintiff having appealed against the decree, this Court thought it necessary to have findings on certain issues regarding the performance of datta homa and its necessity for a valid adoption. Those findings have now been recorded by the lower Court and both parties have put in objections to them. But before dealing with them, it is necessary to consider whether the alleged un-chastity of defendant 1 has been established.
4. Defendant was married to Dhondo in 1910, when she was only about 12 years of age, and he died of plague within seven or eight months thereafter before she had attained puberty. She then lived with her father at Shettihalli and did not go to her husband's village Kudnur. Her father having filed a suit for her maintenance, her husband's cousin Keshav, defendant 2's father, passed a deed of maintenance agreeing to pay her Rs. 50 a year from 1st March 1917. The amount was received by her father every year till his death in September 1928 and thereafter her brother used to receive it every year till the year 1926. According to the Contending defendants, defendant 1 became pregnant a few months before her father's death and went to Belgaum, where she gave birth to a male child in the Civil Hospital on 16th June 1928. Thereafter she stayed on in Belgaum leading a life of shame, and again gave birth to a male child in the same hospital on 16th September 1928. As defendant 2 came to know this, he stopped paying maintenance to her. Defendant 1 thereafter went to live with Mr. Jamakhandi, whose son she is now claiming to have taken in adoption. After discussing evidence about defendant 1's un-chastity, the judgment went on. This is sufficient to hold that defendant 1's un-chastity after her husband's death is established. It is not necessary to determine whether defendant 1 was leading an immoral life on or about the date of the adoption. Her delivery after her husband's death made her patita (degraded) and it is not alleged that she took any prayaschitta (expiation) thereafter. She must, therefore, be held to have remained a patita woman till the date of adoption. It is not now disputed that defendant 1 did go through the formalities of adopting the plaintiff. Mr. Jamakhandi says that he gave the plaintiff in adoption to defendant 1 in the presence of numerous witnesses, including several leading pleaders of Belgaum, and that datta homa was duly performed. The factum of adoption is not now challenged, but it is contended that she was incompetent to make an adoption by reason of her un-chastity and that the datta homa was not properly performed. Eegarding the validity of an adoption by an unchaste widow the following four issues were sent down for findings:
(1) Whether it is necessary for the due performance of the datta homa ceremony that the widow should take part in it?
(2) This Court having decided as a matter of law, that if it is necessary for the widow to take part in the datta homa ceremony, she can, though unchaste, delegate her duties, whether that delegation can be made to the officiating priest or must be made to some one else?
(3) Whether on the facts in the present case the delegation took place to the officiating priest, or whether the widow herself took part in the religious ceremony? And
(4) Whether datta homa ceremony is necessary when the giver and taker belong to Bharadwaj and Shrivatsa gotras respectively?
On these issues, the lower Court has returned the following findings:
(1) Yes. (2) The delegation can be made to the officiating priest. (3) There was delegation to the officiating priest of most of the duties, and the widow also herself took part in the religious ceremony. (4) Yes.
5. After the remand we have had to consider the validity of an adoption by an unchaste widow of one of the three regenerate classes. In Pratab Rawaji v. Rai Suraj ('46) 33 A.I.R. 1946 Bom. 123 and following the rulings in Basvaut Mushappa v. Mallapa Kallapa ('21) 8 A.I.R. 1921 Bom. 301 Laxmibai v. Ramchandra ('98) 22 Bom. 590 and Ramu Bala v. Jana Dala ('42) 29 A.I.R. 1942 Bom. 12 we have held 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 necessary religious ceremonies to some one, and those ceremonies are duly performed by him. We have also observed that such delegation need not be express. The plaintiff has led evidence to show that these requirements were complied with by defendant 1 when he was taken in adoption by her, and for a proper appreciation of that evidence it is necessary to go a bit deeply into the rationale of the datta homa and the rituals involved in it. Among the three regenerate classes certain important ceremonies like upanayana (investiture with sacred thread), marriage and adoption, which effect a change in the status, are to be accompanied by a homa, that is to say, they must be done in the presence of agni (God of fire) who is one of the most prominent deities of the Rigveda and is described as follows:
He is one of the most prominent deities of the Rigveda. He is an immortal, has taken up his abode among mortals as their guest; he is the1 domestic priest, the successful accomplisher and protector of all ceremonies; he is also the religious-leader and preceptor of the gods, a swift messenger employed to announce to the immortals the hymns and to convey to them the oblations of their worshippers, and to bring them down from the sky to the place of sacrifice. (Apte's Dictionary.)
6. The adoption among the Hindus is essentially a religious act although it may involve secular benefits also and its main purpose is to secure spiritual benefit to the adoptive parents. Yet the giving and the taking which are essential for the completion of an adoption are held to be secular acts and can be performed even by Shudras. As they have no gotras, the adoption among the Shudras need not be performed in the presence of agni and, therefore, no datta homa is necessary. Similarly even among the three regenerate classes, when the adopter and the boy to be adopted are of the same gotra, the adoption does not involve a change of gotra and the presence of agni is not required Bal Gangadhar Tilak v. Sarinivas Pandit ('15) 2 A.I.R. 1915 P.C. 1946. But where an adoption results in a change of gotra, such change must be made in the presence of agni. Whenever the presence of any Hindu deity is desired, he is to be invoked , worshipped , offered food and then sent away . In the case of agni these rites together are called homa and the ceremony to witness which he has been invited should be performed before his departure . The details of these rites are to be found in various religious books like and and they are correctly described in the evidence of the plaintiff's expert witness Dattambhat recorded after the remand. An unchaste widow is regarded as patita1 (degraded or impure) and undoubtedly she is incompetent to invoke, worship, feed or send away a deity. It has, therefore, been held that some one deputed by her should perform these acts for her, and when he has secured the presence of agni, she should perform the physical act of taking the boy in adoption in the presence of that agni. In Kamlakarbhatta says (third edition, p. 183 ): (The ceremony of adoption caji be accomplished only with the accompaniment of homa, and although women are incompetent to perform homa, like other religious vows, they should get homa per. formed through a priest). This is a general remark relating to all women. He adds: (So also in the case of Shudras, as Smriti has laid down that women and Shudras are alike as regards religious ceremonies). In the same way it is necessary even for an unchaste woman to perform the requisite homa ceremony through a priest. To ascertain whether this was done we have to consider the different stages of the ceremony described in the evidence of Dattambhat. All these stages have to be gone through whether the adopter is a man or a woman. Mr. Desai for the respondents has taken us through the description of all these stages of homa and they may be summed up as follows:
(1) Sankalpa - Taking a vow to perform the particular ceremony.
(2) Ganapati puja - Ganapati who is said to be the remover of obstacles is worshipped' at the commencement of every important religious undertaking.
(3) Punyahavachan - Pronouncing the day to be auspicious.
These three rites are preliminaries or angas as Dattambhat calls them, and do not form the essential part of the homa. Thereafter the adopter who is the yajamana or the worshipper has to appoint a priest well versed in rituals to officiate as acharya to guide or direct him in performing the homa. This is called
(4) Acharya Varana - Choosing the acharya.
Dattambhat says that a yajamana is indispensable for every ceremony, but an acharya can be dispensed with if yajamana himself is conversant with the procedure and mantras. But usually even such a yajamana does appoint an acharya for performing the homa for him.
(5) Acharya and Vishnu are then worshipped and a sankalpa is made for feeding Brahmins and relations.
(6) Homa Sankalpa - Here begins the main homa ceremony with a view to perform the datta homa.
(7) Sthandila Sthapana - Preparing a piece of square ground for an altar.
(8) Agni Sthapana - Placing or kindling fire on the altar and invoking Agni.
(9) Anvadhana - Depositing fuel on the sacred fire.
(10) Ajyotpavana - This consists in sprinkling ghee on the sacrificial fire with two blades of kusha grass.
(11) Havana Oblations, some of rice and some of ghee are to be thrown into the sacrificial fire and every time the yajamana says (This is for agni and not mine)
In the case of all other deities food or naivedya is merely to be presented and thereafter eaten by the worshipper and his relatives. But in the case of agni he consumes the oblations and reduces them to ashes leaving nothing to the yajamana. Hence the yajamana has to utter these words of tyaga or renouncement.
(12) This is followed by vibhuti grahana, putting out the fire ans taking the ashes, and conferring the merit of the homa on the yajamana and or - resigning everything in favour of God.
7. The actual adoption which consists in the physical acts of (giving) and (taking) is performed in the presence of agni usually between ajyotpavana and havana. At that time, after worshipping Ganapati, the giver places the boy on the lap of the taker saying 'Receive my son' and the taker then says 'I accept him' .
8. All these rites were gone through when defendant 1 took the plaintiff in adoption. But being an unchaste widow she was incompetent to take part in any of the religious acts. She did delegate the performance of punyahavachana to one Rangappa. But it appears that this Rangappa, her deputy, retired after punyahavachana, and then defendant 1 herself acted as the yajamana throughout the subsequent ceremony. Mr. Jamakhandi, the plaintiff's next friend, who is himself a pleader, never alleged in the plaint, or at any time before the remand, that defendant 1 had delegated the performance of religious ceremonies to any one. After remand he alleged that she had delegated them to Shripadbhatji by appointing him as acharya. He means to suggest that acharya varana itself amounts to such a delegation. That is not wholly incorrect, since acharya varana is the selection of a priest to guide the yajamana in the performance of the homa. Mr. Desai contends that acharya varana does not amount to delegation of the religious duties to be performed by the yajamana himself and that the acharya is merely to recite mantras and get the rites performed by the yajamana. Shripadbhat says that when oblations were thrown into the fire by him it was defendant 1 herself who uttered the words eleven times and that she herself acted as the yajamana throughout the homa ceremony. The reason is obvious as Dattambhat says that the adopter has to act as yajamana although he (yajamana) may have appointed an acharya. Shripadbhat did not know that defendant I was a patita woman and had no reason to think of asking her to depute some one else to perform the duties of the yajamana He says:
At the time of the daita homa ceremony I did not know that defendant 1 was unchaste. I admit that a Brahmin unchaste widow is unfit for association (vyavaharabahya). Had I known that defendant 1 was unchaste, I would not have got her to perform the various acts and to repeat the varjjbus mantras and words which she did during the ceremony. A Brahmin who permits a religious rite to be performed by an unchaste widow himself becomes blameworthy.
9. According to Dattambhat a yajamana can delegate his duties to acharya, but he cannot substitute another yajamana in his stead. This may be true in the case of a jajamana who is not patita. He admits that one who is patita is ayajya (by whom a priest cannot get any religious act done). Hence such a patita cannot act as a yajamana and, therefore, if homa is to be performed, some one has to be deputed to act as a yajamana. In Laxmibai v. Ramchandra ('98) 22 Bom. 590 a relative of the adopter had been so deputed. This delegation should be made from beginning of the religious rites, and in fact Rangappa had been deputed by defendant 1 at the time of punyahavachana. Thereafter he himself should have acted as the yajamana and defendant 1 should have been allowed only to perform the secular overt act of accepting the plaintiff in adoption in the presence of the sacrificial fire when he was offered by his father. Mr. Desai contends that she could not even do that act as she had to utter the word (I accept). But that word is not a ritual; it is only the Sanskrit equivalent of 'I accept.' She might as well have said that in her own language giving her assent to take the boy in adoption. This is only a physical act and in spite of her impurity she herself must do it and cannot delegate it to anybody else. As held in Bhagvandas Tejmal v. Rajmal ('73) 10 'Bom. H.C.R. 241:
Hindu law does not allow any one but the widow to act vicariously for the man to whom the son is to be affiliated; the widow is a delegate either with express or implied authority, and cannot extend that authority to another person so as to enable him to adopt a son to her husband.
10. Hence defendant 1 herself was bound to receive the plaintiff in adoption and her un-chastity would not come in the way of taking him on her lap when offered by his father in token of accepting him as her son. After her husband's death she alone could perform that act, but as their gotras were different, she had to perform it in the presence of agni, and we have to consider whether the adoption must be held invalid by reason of the part taken by her in the performance of the homa.
11. As regards Ganapati-puja Dattambhat says that a woman can perform it, but he does not say whether an unchaste woman can do so. It may be conceded that she cannot, as she is a patita woman. But it is only an anga or non-essential part of the ceremony and its omission does not vitiate the homa or the adoption. As soon as the acharya was selected, the performance of the homa was undertaken by him. The sankalpa (vow) taken by the acharya after be is selected is as follows:
with Moghe's translation, sixth edn., p. 160, and also chapter 113 p. 167). (With the assent of the yajamana I will perform the homa prescribed as part of the ceremony of the adoption of a son).
12. This shows that the acharya is responsible for the due performance of the homa, from inviting agni until sending him away . Shripadbhat did all these acts with appropriate rituals. The only flaw pointed out is that when he offered the oblations to the sacrificial fire defendant 1 uttered the words: that is to say, she told agni that the oblations were for him, and were not hers. She need not have said this, as the oblations were actually offered by the acharya, and as he was responsible for the homa he must have uttered those words himself. Her uttering of those words was ineffective and, therefore, superfluous. Such a superfluity could not vitiate the offering of the oblations . Moreover, if at all it was a flaw, it was subsequent to the giving and the taking which were completed duly in the presence of agni immediately after ajyotpavana and any subsequent irregularity in the ceremony would not invalidate the adoption. Moreover, we should not attach undue importance to an error in the details of the rituals in the course of such an elaborate ceremony. As observed by Lord Shaw in' 42 I. A- 135.5 (p. 149):
If one has recourse to the ancient writings when Brahminical influence was most predominant one finds the ceremonial part of adoption the subject of highly elaborate detail; and it is beyond all question that in the course of ages many of these details have disappeared as essentials within the legal sphere.
We entirely agree with the remark made by a Full Bench of the Madras High Court in Govindayyar v. Dorasami ('87) 11 Mad. 5 (F.B.) that it is necessary to exact nothing more then a bona fide observance of he ceremonial in compliance with the prescribed procedure, and to avoid complicating the law of adoption with the subtleties of ceremonial law. It is to cure such flaws due to accident or ignorance that the doctrine of factum valet is to be invoked. Our attention is called to a remark appearing on p. 256 of Mayne's Hindu Law, Edn. 10, 1938, that where the performance of datta homa is essential, its omission cannot be cured by the application of factum valet. But in the present case datta homa was performed. Although the acharya himself had under, taken to perform the whole of the ceremony be allowed defendant 1 to perform the Ganapati-puja and utter the words of tyaga. The former was non-essential and the latter was superfluous since the acharya himself must have uttered the words of tyaga anddefendant 1 to repeat them. We do not think that these defects in the homa ceremony are fatal to the validity of the adoption. We thus agree with the findings of the lower Court on the four issues sent down and add to the finding on issue 3 that the part taken by the widow was not such as would affect the validity of the adoption. We, therefore, hold that the plaintiff's adoption by defendant 1 is proved and valid.
13. Defendant 1's husband Dhondo was a half sharer in the joint family, and the plaintiff is entitled to that share. Defendants 2 to 9 contended in their written statement that as there was a partition amongst them after the death of Dhondo, the family coparcenary had come to an end, and that defendant 1's right to adopt was thereby lost. This contention is no longer tenable in view of the rulings of the Privy Council in Anant Bhikappa v. Shankar Ramohandra and of this Court in Ramchandra Balaji v. Shankar ('45) 32 A.I.R. (1945) Bom. 229. In the latter case it has been held that though a partition between the surviving coparceners puts an end to the coparcenears, it cannot defeat the right of the widow of a predeceased coparcener to adopt a son to him, and if the adoption be otherwise valid, the adopted son is entitled to claim a repartition of the family property and claim his share in it.
It is admitted that Annaji and Govind were undivided and that after Annaji's death his sons also continued to be coparceners of Govind and Dhondo. But it is urged that they were doing business separately and had acquired properties out of their savings independently of each other, so that whatever was so acquired by Annaji or any of his sons was their self, acquisition in which the plaintiff has no right to claim a share. A large number of documents have been produced on both sides to show how various properties were acquired and were dealt with by them. At this stage it may be pointed out that the only ancestral property which could yield any income was the two Kulkarni watan lands. The plaintiff's guardian says that at present the income from those lands may be about Rs. 200 or Rs. 250; while defendant 5 says that it may be about RS. 100 or Rs. 125. There is no evidence to show what the income was when Annaji began to acquire the properties in suit. It may be assumed that the income may have been about Rs. 100 or Rs. 150 a year, even on the basis of the estimate of the present income given by the plaintiff's guardian. It is contended that as there was this nucleus of joint family property, all the acquisitions made by Annaji must be deemed to be joint family property and that the burden of proof that any of those properties were treated as Annaji's self acquisition lies upon the contending defendants. This position was realized by the lower Court and the issue on this point was so framed as to throw the burden of proof on the defendants. But the legal position is not that the mere existence of a nucleus is sufficient to raise a presumption that property purchased by a member of a joint family is joint family property, but that only the existence of an adequate nucleus will give rise to that presumption. This has been the subject of several decisions of different High Courts. But it is not necessary to deal at length with the case-law on this point since its result has been correctly stated by this Court in Babubhai Girdhar lal v. Ujamlal Hargovandas ('37) 24 A.I.R. 1937 Bom. 446 in the following terms (p. 708):
If there is, a joint family, which possesses a nucleus of joint family property, then property acquired by a member of that family is presumed to be joint family property. The nucleus of joint family property necessary to give rise to the presumption must be family property from which the purchase money for the property in dispute might have been derived wholly, or at any rate in considerable Article The mere possession of joint family property at the date of the purchase of the property in dispute is not enough to raise the presumption that the property is joint family property.
14. The same view was expressed in Vythianatha v. Varadaraja ('38) 25 A.I.R. 1938 Mad. 841 . It is, therefore, not enough to prove merely that there was some ancestral property to serve as a nucleus, but it must further be shown that the nucleus was such that the property in dispute could have been acquired with its aid. The existence of an insignificant nucleus is not enough to render subsequently acquired property a joint family property. It must be shown that the nucleus was such as could have reasonably formed the basis of the acquisition of the property. Hence the onus which lies on the party alleging self-acquisition shifts as soon as it is shown that the alleged nucleus was not sufficient to have reasonably formed the basis of the acquisition of the property in dispute. It is not alleged in this case that although Annaji acquired the property out of his own earnings he treated it as joint family property and blended it with the ancestral family property. The presumption is against blending and when once it is shown that a particular property was acquired by a member of a joint Hindu family without the income from the joint family and therefore was his self-acquisition, the onus lies upon the person who pleads that though it was separate property, it lost its separate character by reason of being blended with the other joint family properties. No. such allegation has been made on behalf of the plaintiff, and Mr. Madbhavi frankly stated to us that his contention was that the property in suit was never Annaji's self-acquired property and not that it had subsequently become joint family property by reason of its being blended with other joint family property. We need not, therefore, consider whether Annaji and his sons allowed the property in suit which they claim as self-acquired property to lose its separate character by allowing it to be treated as joint family property. After dealing with questions of fact arising in the case, the judgment concluded.
15. We, therefore, set aside the decree of the lower Court and declare that the plaintiff's adoption by defendant 1 Godubai is proved and valid. We further declare that out of the immoveable properties described in the plaint, only the first house is para. 1, Clause A, and the two Kulkarni watan lands, revision survey No. 256/5 and 811/7 at Kudnur, described in para. 1, Clause 0, are joint family property, and that the plaintiff is entitled to a half-share in them. We direct that a preliminary decree for a partition of the said two lands Under Order 20, Rule 18 (1), and of the said house Under Order 20, Rule 18 (2), Civil P.C., shall be drawn up. The lower Court shall give the necessasy directions for the partition of the house as required by Order 20, Rule 18 (2), Civil P.C. We further order defendants 2 to 9 to pay Rs. 250 to the plaintiff as the value of his share in the household cattle and pots and pans described in para. 1, Clauses E and p of the plaint. The plaintiff shall recover from defendants 2 to 9 mesne profits of the share awarded to him from the date of suit, to be determined Under Order 20, Rule 12, Civil P.C. The rest of the plaintiff's claim is rejected. Parties to bear their own costs throughout.