Norman Macleod, Kt., C.J.
1. The plaintiff sued to obtain a declaration that the first defendant was not the legally adopted son of the plaintiff's husband. The plaintiff disputed the factum of the adoption. That issue was found in the affirmative, but on the issue whether the adoption was valid, the Court held that the adoption was not valid, though in fact it had been made, because the adoptive father and the adopted son were of different gotra. Consequently the datta homam was essential to validate the adoption, and in this case it is not disputed that the datta homam had not been performed. If we were of opinion that the adoption was valid, it would have been necessary to consider the authorities at some length. But we agree with the judgment in the Court below that in this particular case the datta homam was necessary.
2. The authorities are considered in the latest Edition of Mayne at pp. 205-208, and at the bottom of page 207 the conclusion is as follows : ' So far as it is possible to reconcile these conflicting decisions, they seem to point to the conclusion that, among the twice-born classes, the datta homam is necessary, unless the adopted boy is of the same gotra as his adopter, or unless a usage to the contrary can be established.' In Mahashoya Shoainath Ghose v. Srimati Krishna Soondari Dasi (1880) L.R. 71 A. 250 their lordships observed :-
The mode of giving and taking a child in adoption continues to stand on Hindu law and Hindu usage, and it is perfectly clear that amongst the twice born classes here could be no such adoption by deed, because certain religious ceremonies, the datta homam in particular, are in their case requisite.
3. The question in issue in that appeal was whether there could be in the case of Sudras such a giving and taking as was necessary to satisfy the law, by mere deed, without an actual delivery of the child by the father. Still this dictum of their lordships may be taken as stating what their lordships considered at that time was necessary to validate an adoption amongst the twice-born classes.
4. In this Presidency at any rate the only cases in which an adoption has been recognised as valid without the datta homam, being performed have been those in which the adoptive father and the adopted son belonged to the same gotra. All the authorities on this subject are discussed in Valubai v. Govind Kashinath I.L.R (1899) 24 Bom. 218 : 1 Bom. L.R. 770; and in Bai Gangadhar Tilak v. Shriniwas Pandit (1915) L.R. 42 IndAp 135 : 17 Bom. L.R. 527 : I.L.R. 39 Bom. 441 their lordships in considering the same question gave their approval to the judgment of Sir Lawrence Jenkins in that case On a review of the arguments in that judgment it is obvious that the learned Chief Justice considered that it was only because there was identity of gotra that the datta homam could be dispensed with. It must be noted, however, that in referring to the decision of the Full Bench of the Madras High Court in Govindayyar v. Dorasami (1887) I.L.R. 11 Mad. 5 their lordships in Bai Gangadhar Tilak v. Shriniwas Pandit (1915) L.R. 42 IndAp 135 : 17 Bom. L.R. 527 : I.L.R. 39 Bom. 441 considered that decision as being of value as containing a careful study of the authorities and affirming that the ceremony of datta homam was not essential to a valid adoption amongst Brahmins in southern India. With all due respect it would seem difficult to find from the judgment of the Full Bench that it was decided that the dutta homam was not essential to any adoption amongst Brahmins. The head-note is as follows :-
The ceremony of Datta Homam is not essential to a valid adoption among Brahmans in Southern India, when the adoptive father and son belong to the same gotra.
5. Their lordships considered whether they should depart from the decision in V. Singamma v. Vinjamuri Venkatacharlu (1868) 4 M.H.C.R. 165 in They pointed out that some doubt had been thrown upon that case by the observation of the Judicial Committee in Mahashoyd Shoainath Ghose v. Shrimati Krishna Soondari Dasi, that datta homam, was requisite in the case of Brahmins and referred to the case of Venkata v. Subhadra I.L.R. (1884) Mad. 548 which was to the same effect. In V. Sinyamma v. Vinjamuri Venlcatacharlu the point was not argued on both sides and Jagannatha, who was cited in the case, was no authority in southern India. Their lordships concluded that the original tests conveyed the impression that datta homam might probably be an essential part of a valid adoption as a general rule, and that in a proper case there was sufficient ground for directing an inquiry as to usage. Although the general rule might be as indicated above there was reason to think that there were exceptions to it. There was a text of Manu to the effect that if, among several brothers, one has a son, that son was the son of all. To this extent, that datta homam was not essential when the adoptive father and son were of the same gotra, they thought they might safely adhere to the decision in V. Singamma v. Vinjamuri Venkatacliarlu.
6. The rule, therefore, may be stated in this form. The ceremony of datta homam is essential to validate an adoption amongst Brahmins unless the adoptive father and son belong to the same gotra. Apart from all the considerations there is this justification for it, that when it in sought to introduce a stranger into a family it is desirable that all the religious ceremonies should be performed so as to ensure the requisite publicity for the adoption. It may be said that there is a tendency in these days towards dispensing with religious ceremonies, but that is no reason why we should seek in this case to depart from what must be recognized as an established rule of Hindu law. The appeal is dismissed with costs.