Iqbal Husain, J.
(1) This is a second appeal by plaintiff Sanganna Gouda against the concurrent findings of both the Courts below. The plaintiff who is a minor as represented by his natural father and guardian Shiva Sangan Gowda filed a suit against the defendants Kalkan Gouda (first defendant-first respondent and Sangangouda (second defendant-second respondent) for a declaration that he is the adopted son of the second defendant-second respondent Sangangouda and the alleged adoption of Kalkan gouda, the first defendant-first respondent is invalid.
Both the Courts below have held that the adoption of Kalkan Gouda has been proved. They have relied upon the registered adoption deed dated 26-5-1950 executed by the second defendant in favour of the first defendant, by which the first defendant has been adopted as the son of the second defendant. They have also relied upon a subsequent suit filed by the first defendant against the second defendant in the Munsiff's Court at Kustagi, Richur District for a declaration of his adoption.
In that suit, viz., O. S. 282-1 of 1950, the first defendant's suit was decreed. The effect of that was that the first defendant has not only got a registered deed to support his adoption but he has also a declaratory decree regarding the validity of his adoption in his favour.
(2) Sangan Gouda (second defendant) has three wives. Kalkan gouda, the first defendant is the second defendant's third wife's brother. It is alleged by the plaintiff that the adoption of wife's brother is invalid in law. Barring the legal plea that the plaintiff has taken, he has further relied upon his own adoption which he says is earlier than the first defendant that having taken place on 7th of Dhai 1358 F.
Hence his adoption being prior to the adoption of the first defendant, the prior adoption is valid and the subsequent one of the first defendant is invalid in law. Both the courts below have held, as a matter of fact that the plaintiff has not proved his adoption. There is no document to evidence the adoption. Taking into consideration the facts and circumstances of the case, I am of opinion that the Courts below are right in coming to that conclusion and I have no reason to differ from the concurrent findings of fact. Even Mr. Patil, the learned Advocate for the appellant has advanced no arguments to show that these findings of fact are erroneous.
(3) The only point then that remains to be decided is whether the adoption of the wife's brother, viz. of Galkan Gouda, the first defendant is valid in law or not. Mr. Patil, the learned Advocate for the appellants very strenuously contends that such an adoption is invalid according to law. His contention is that the law that is applicable to the Lingayats--because all the parties to the suit are lingayats is the general Hindu law and it is not the law as applicable to the Sudras and his further contention is that in any case, the dubbing of Lingayat community as Sudras contravenes the provisions of the Indian Constitution.
He argues that the adoption of the first defendant by the second defendant was after the promulgation of the Constitution. Therefore, as per Articles 14, 15 and 17 when untouchability has been removed to classify Lingayat community amongst Sudras and to deny the equality before law is making a discrimination, contravening the provisions of the Constitution. As I have stated before the parties to the suit are Lingayats.
There can be no two opinions that the Lingayats are Hindus and governed by the Hindu law. In the classification made by Mullah in his classical book on Hindu Law latest edition viz. 12th edition, at para 80, Section 6 he mentions the persons who are governed by the Hindu Law.
'The Hindu law applies...............6. (iv) to Jains, Buddhists in India, Sikhs.................... and to Lingayats who are considered Sudras.'
The contention of Mr. Patil is not that the Lingayats are outside the pale of Hinduism and that the Hindu Law does not apply to them but it is the general Hindu law that is applicable to the Lingayats. Perhaps by the term 'general Hindu Law' Mr. Patil means, Hindu Law that is applicable to the higher castes like the Brahmins, Kshatriyas and the Vysyas. According to him, the adoption of the wife's brother is invalid. For this contention he relies on the principle of Virudha Sambandha viz. That the person to be adopted must not be a boy whose mother, the adopted must not be a boy whose mother, the adopting father could not have legally married. In this case the mother of the adoptive boy viz. of the first defendant would be the mother-in-law of the second defendant.
Therefore, he contends, that the adoption of the first defendant by the second defendant is invalid. This principle on which he relies has been restricted in many recent cases to the daughter's son, sister's son and the mother's sister's son. They have gone a step further and held that the prohibition in this rule is not of a mandatory nature; it is only of a recommendatory character. As such, it could be either adopted or not adopted according to the circumstances. This has been laid down law decisions ranging as early as ILR 20 Mad. 283, Ragavendra Rau v. Jayaram Rau. In that case it was argued that:
'The respondent's natural mother, being Seshammal's sister's daughter, could not, under the Hindu Law, have been lawfully married to Narasinga Ram, and therefore the respondent could not have been validly adopted as his son. It being the settled law of this court (Madras High Court) except where there is evidence of special usage to the contrary, that the natural mother of the boy to be adopted, should be a person, who, in her maiden state, might, lawfully have been married to the man for whom the adoption is to be made. The question for determination is whether a Hindu is by law, precluded, as the appellants contend, from marrying his wife's sister's daughter.'
His Lordship Justice Subramania Ayyar giving the judgment after reviewing the texts has held that the marriage between a Hindu and the daughter of his wife's sister is valid and the text is not mandatory. Quite a number of recent cases have also adopted the same principle, viz., that the rule is not mandatory. In the case reported in : AIR1955Mad559 , gopalachariar v. Krishnamachariar, it is held as follows:
'Among the three higher classes no one can be adopted whose mother in maiden state the adopter could not have legally married. But this rule is subject to exceptions, which exist and prevail in the State of Madras, such exceptions being based on custom to the contrary. Thus notwithstanding the prohibition assuming that is derived front he texts, the customary law has so far established the permissibility of the adoption of a sister's son or daughter's son though a sister and daughter stand in a prohibited relationship. Such adoptions being common even amount the three higher classes, no taint attaches on account of the relationship and in so far as the higher classes in Southern India are concerned, the prohibition has practically ceased to have any effect. Hence, though the adoptive son's natural mother is within the prohibited degrees of marriage, being the adoptive father's paternal grandmother's sister's daughter, still the adoption is valid.'
In the case reported in : AIR1956Pat340 , Mt. Saraswati Kuer v. Debendra singh, it is held that the authority of Nand Pandit in Dattaka Mimamsa is not an infallible guide in deciding as to who cannot be taken in adoption where it deviates from the ancient Hindu law-givers, that the passage from Griha Parishist quoted in verse 19 of S. 5 of Dattaka Mimamsa was not imperative, and any marriage contracted against the direction given in that passage would not become invalid in the eye of Hindu law. Consequently, the adoption of wife's sister's daughter's son is not invalid according to the Benares School of Hindu Law. A later decision of the same High Court in : AIR1957Pat365 , Chandi Charan Bandopathyaya v. Nabagopal Sarkhel, lays down as follows:
'Any legal objection raised to the validity of adoption as being contrary no Niyog rule cannot be sustained, because it has now become obsolete. The rule that no one can be adopted, whose mother the adopter could not have legally married, is confined to the specific instance of a daughter's son, sister's son and mother's sister's son, and marriages, though disapproved on moral grounds, are valid in law. Therefore, although a marriage between adoptive father and, the mother of the adopted son who was the daughter of the cousin of the adoptive father could not be approved on moral grounds still it was not invalid in law, and therefore, the adoption is perfectly valid.'
The decision reported in AIR 1958 Andh Pra 693, Deoki Nandan v. Madanlal, wherein it is held as follows:
'The rule that no one can be adopted as a son whose mother the adopter could not have legally married is only recommendatory rather than mandatory.'
(4) All these decisions lay down that the principle enunciated in the text relied upon by the learned counsel for the appellant is only recommendatory and not mandatory and even the principle and the scope of that text has been modified and restricted to daughter's son, sister's son and mother's sister's son in recent cases. The wife's brother does not fall within the category of any of these three cases. Even taking the general principles of Hindu Law as applicable to Lingayats therefore into consideration I find that the adoption of the wife's brother is perfectly valid.
(5) Mr. Patil, the learned Advocate for the appellant contends that according to the general principles of Hindu law, this adoption is invalid, and he relied on the decision reported in AIR 1936 prosecution 18, Somasekhara Royal v. Mahadeva Royal, where it is held as follows:
'The ordinary Hindu law is presumed to apply to Lingayats except in so far as is shown that they have superseded it by their customs and in the absence of proof of any special custom among the Lingayats, there can be no ground for a successful argument in that direction.'
(6) In that case the adoption of a married man was considered to be invalid. As I have stated already that even taking the general law into consideration, the principle has been restricted by recent decisions to the category of daughter's son, sister's son and mother's sister's son. Wife's brother is outside this category. Even on that ground the adoption cannot be held to be invalid.
(7) Mr. Ashrit, the learned counsel for the respondents contends that even on another ground the adoption of his client, viz., the first defendant by the second defendant is to be considered as valid one. His contention is that the validity of such adoption can be questioned by the three classes viz., the Brahmins, Kshatriyas and Vysyas and not by the community belonging to the last class. Lingayats do not come within any of these former three castes.
(8) In fact from the history of the Lingayat community it is evident that its founder Shri Basaweswara revolted against the stagnation that prevailed at the time in Hinduism and wanted to purify it as far as possible, but it cannot be denied that the Lingayats are within the fold of Hinduism. In particular the revolt was against the caste system and idol worship. It is an irony that the followers of one who was originally a Brahmin should be classed as Sudras. They are classified under Chapter 31 by Mulla which deals with the last class, Quoting again from Mulla's latest edition at page 761, para 627 where a brief history of the Lingayats is noted. This is how the learned Author puts it:
'The Lingayats who are originally Hindus are a body of dissenters and the founder of their religion was one Basaveswara who was born about A. D. 1100. They acknowledge only one God, Siva and reject the other two persons of the Hindu Triad. They revere the Vedas, but disregard the later commentaries on which the Brahmans rely. Their faith purports to be the primitive Hindu faith, cleared of all priestly mysticisms. They deny the supremacy of Brahmans, and pretend to be free from caste distinctions though at the present day caste is in fact observed amongst them. They declare that there is no need for sacrifices, penances, pilgrimages or fasts. The cardinal principle of the faith is an unquestioning belief in the efficacy of the Lingam, the Image which has always been regarded as symbolical of the God Siva. Mysore, the Southern Maharatta country, and the Bellary District contain most of the Lingayats. Though the sacred thread is not worn by the Lingayats, a ceremony called Deeksha ought to be performed about their eighth year but as in the case of Upanayanam it is often performed much later. The sacred Mantra is whispered in the ear by their Guru and this ceremony corresponds to Upanayanam among the Brahmans. Lingayats whose only god is Siva and who acknowledge the authority of the Vedas, are bound by Hindu law except in so far as it is modified by custom.'
Mr. Ashrit relies on a few decisions and in particular on AIR 1944 Bom 40, Tirkangauda Mallangauda v. Shivappa Patil, where it is held as follows:
'Among the Lingayats who are governed by Hindu law as applicable to Sudras a woman in the absence of a custom to the contrary is incompetent to give in adoption her illegitimate son born of adulterous intercourse.'
(9) An early decision reported in ILR 8 Mad 440, Virasangappa v. Rudrappa, is also to the similar effect. Quoting with approval the view held by the Courts in Bombay, it has been held as follows:
'The parties are Sudras and the sect to which they belong is rightly described by the Subordinate Judge to owe its origin to one Basava, who held that caste distinctions were unworthy of acceptance, and who repudiated Brahmanical observances.'
(10) The case reported in AIR 1946 Nag 253, Champabai v. Raghunathrao Govindrao, is also to the similar effect where it is held as follows:
'According to the Bombay school of Hindu law, it is within the competence of a person to adopt his wife's brother as his son. The adoption is not invalid because it took place after the thread ceremony of the boy had been performed.'
In that case the adoption related to Maharashtra Brahmins.
(11) The Hyderabad High Court has consistently taken the view that the Lingayats belong t the last class. In 22 Deccan LR 60, Amina Reddy v. Venkata Reddy, the parties are Lingayats. In that case it has been held after reviewing quite a number of cases and in particular, ILR 6 Bom 524, Somasekara Raja v. Subhadramaji, and ILR 8 Mad 440, that the Lingayats come within the category of Sudras and the law applicable to them is the Dravidian school of Hindu law. Similar is the decision reported in 28 Deccan LR 962, Sangan gouda v. Channa Sanganna Gouda, where it is held that the Lingayats come within the category of Sudras.
(12) I would like to refer to another decision of the Hyderabad High Court, where though the parties are Sikhs still the case is a parallel one. That is the Full Bench decision reported in 21 Deccan LR 374, Somer Singh v. Krishna Singh. Sikhs also revolted against Hinduism and formed their own particular community and they are the followers of a different religion but still, they are classified amongst the Hindus. It is held in that case as follows:
'Though the Sikhs revolted against Hindu religion though their religious tenets are different from the Hindu religion, but still they are governed by the Hindu law.'
Even there the question arose with regard to the adoption of the wife's brother as in the present case and it was held that such an adoption is not invalid. His Lordship Mirza Yar Jung, C. J. Contents himself by classifying the Sikhs as non-do janmi (not belonging to twice-born caste) but hesitates to classify them amongst the Sudras on account of their culture etc., and avocations. The restrictions for adoption as enunciated for the first three casts do not apply so far as the fourth caste is concerned. If that is so, the adoption of the wife's brother cannot be held to be invalid in law.
(13) It only remains for me to make a passing reference to the last contention of Mr. Patil to the effect that the classification of the Lingayats amongst Sudras contravenes the provisions of Articles 14, 15 and 17 of the Constitution of India - Articles 14, 15 and 17 deals with equality before law. Art. 15 deals with prohibition against discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 17 deals with abolition of untouchability.
In my view the present case does not come within any of these above said provisions for a particular reason that there is no deprivation of the rights of Lingayats. On the other hand, there is an enlarged right given to the Lingayats to adopt even wife's sister's son. Thus there is no discrimination against Lingayats and the general Hindu law does apply to them. The general law classifies Hindus into four classes. Therefore, it cannot be said that because a particular community of the Hindus comes within the four corners of one class or the other, there is discrimination so far as that community is concerned.
No question of untouchability arises in this case. This case is a pure case of adoption. It has the restricted scope, viz. whether the adoption of a wife's brother by a Lingayat is valid in law or not. No doubt the grievance of Mr. Patil in placing the Lingayat community under the last class has much to be said in its favour in the sense that the term 'sudra' has gathered round it certain uncomplimentary connotation. Untouchables were the product of the Hindu caste system. Even the socalled 'untouchables' are given the glorified name of 'Harijans'.
If so, Mr. Patil argues why should Lingayats with a culture and a philosophy of their won should be dubbed as Sudras. But it is for the Legislatures to change the nomenclatures. It is not within the purview of this court to give one name or one classification or another even though it considers that the name given to that classification is not a suitable one.
(14) In the result, this appeal is to be dismissed and it is so ordered.
(15) As regards costs, we order that each party should bear his own costs of this appeal.
(16) Appeal dismissed.