1. The dispute which has given rise to this litigation has two main branches: one relating to the validity of an alleged adoption of the plaintiff Lekhraj by Chandan Singh, zamindar of the Gabhana estate, and the other relating to an alleged adoption of the defendant Ganga Sahai by Musammat Khushal Kuar, one of the widows of Hira Singh, who was the zamindar of Birpura, another estate of considerable extent. Both these branches of the litigation raise important questions of fact and difficult questions of law which require disposal. But, independently of these questions, some further complication has been introduced by the course which the proceedings in this case took in the Court below. It will be convenient to dispose of the last mentioned matters before going into the merits of the litigation itself, for these matters are of a preliminary nature, and formed the subject of the first part of the argument addressed to us by the learned Pandit who has appeared on behalf of the appellant in this Court.
2. The suit was instituted on the 2nd July 1881, and the principal part of the relief prayed for, was to obtain a declaration that the alleged adoption of the defendant Ganga Sahai by Khushal Kuar be declared null and void, as also such proceedings as the latter may have taken in the nature of alienations of her deceased husband Hira Singh's estate to the prejudice of the plaintiff, who claimed to be presumptively entitled to succession to the estate upon the widow's death. The parties impleaded as defendants to the suit were Khushal Kuar and Ganga Sahai under the guardianship of his natural mother Bhawani Kuar, who, however, by an application of the 25th July 1881, declined to act as guardian of her minor son.
3. The Court below, however, did not allow her to withdraw, but directed o that both she and the alleged adoptive mother Khushal Kuar should be appointed to act as guardians ad litem. Bhawani Kuar does not, however, appear to have taken any further action in the matter; for we find that on the 19th August 1881, Khushal Kuar by herself filed a written defence on her own behalf, and also as guardian ad litem of the minor Ganga Sahai. Issues were settled on the same day, and the 10th of September 1881, was fixed for the decision of the case; but on that day the parties, acting under the provisions of chapter XXXVII of the Civil Procedure Code, applied to the Court to refer the matter to the arbitration of Raja Lachman Singh, a gentleman who had been summoned as a witness in the case, and in whom the parties appear to have had confidence; for the submission, in somewhat general terms, goes on to say: 'We do hereby agree that the award in this case, which the arbitrator shall conscientiously deliver, and as regards the costs also, shall be accepted by us as a decision of court.' The order of reference was thereupon made, and was issued on the 15th September 1881, and reached the arbitrator the same day together with the papers of the ease, the 22nd September being fixed by the Court for delivery of the award.
4. It is now important to consider the exact nature of the arbitrator's proceedings, because the award which was made by him has been set aside by the lower Court, and the first ground of appeal before us impugns that part of the judgment of the Court below. But upon this point we have already intimated our opinion that there was no reason to call upon the respondent to reply, and in dealing with this part of the case we are relieved of the necessity of going into any very minute examination of the evidence, on account of the exhaustive order which the learned Judge of the Court below passed on the 24th April 1882, setting aside the arbitration award. With all the main conclusions arrived at in that order I fully concur, and I do not think it is necessary for me to do more than state the principal points which the evidence upon this part of the case established.
5. The order of reference reached the arbitrator on the 15th September 1881, giving him a week, that is, up to the 22nd of that month, for the delivery of the award. Considering the nature and difficulties of the case, the time was undoubtedly not 'reasonable' within the meaning of Section 508 of the Civil Procedure Code, and I think the arbitrator acted with perfect propriety in writing, on the 17th September 1881, that 'as this case refers to a very extensive property, and the points at issue are such as require a full investigation, which it is impossible to make within the time allowed, and as an extension of time is necessary, therefore request should be made to the Subordinate Judge to grant him time up to the Dasehra vacation.' Whatever may be said as to this method of addressing a Court of justice, there can be no doubt that the application for the extension of time was justified by the circumstances of the case, and indeed it was granted on the 22nd September 1881, extending the time for the delivery of the award up to the 26th October 1881.
6. But in the meantime, on the 20th September, the arbitrator, without waiting for the order of the Court, recorded the following in his proceedings: 'As I will institute an inquiry in the case on the 24th September of the current year, let the parties be informed that I shall be at Somna station on the 24th September, and shall make inquiries in this case.'
7. This proceeding, if open to no technical objection, was certainly improper; partly because the arbitrator could not hold an inquiry on the 24th if the Court had not allowed extension of time, but mainly because, as the Court below has pointed out, the arbitrator in his evidence has admitted that he did not expect the intimation to reach the parties before the 21st or 22hd, thus leaving only two days to the parties for production of evidence--a period extremely inadequate under the circumstances of the case, as the arbitrator himself might have realized with reference to what he said in his proceeding of the 17th September already referred to.
8. But what followed is open to much more serious objection. The plaintiff, notwithstanding the short notice, sent Babu Jogindro Nath, a pleader, from Aligarh to Somna, and he arrived there on the 23rd and met the arbitrator, and found him there trying to induce some other members of the family to appoint him arbitrator in respect of some anticipated dispute which was wholly beyond tbe scope of the present litigation. The pleader has been examined as a witness, and his evidence on the main points agrees with that of the arbitrator himself, and, taken with it, establishes the following points:
First.--That the arbitrator had no intention of holding any inquiry either on the 23rd or 24th September.
Secondly.--That he told the plaintiff's pleader that a new date would be fixed for the inquiry, of which notice would be given to the parties.
Thirdly.--That, upon this intimation being given, the pleader returned to Aligarh.
Fourthly.--That, notwithstanding this, the arbitrator went to Birpura on the 23rd September, to visit Khushal Kuar, the alleged adoptive mother of Ganga Sahai, and on the next day, the 24th, at 9 P. M., he took down the evidence of Khushal Kuar, and of Bhawani Kuar, in the absence of the plaintiff or his pleader, though one Kalian Singh, a servant of the plaintiff, happened to be present only when the former lady was examined.
9. All these proceedings were taken, as the arbitrator in his evidence admits, before he received the order of the Court extending the time for the delivery of the award, and they are certainly open to the criticism to which the learned Judge of the Court below has subjected them. And it appears from the evidence of the arbitrator himself that they had the effect of depriving him of the plaintiff's confidence. The arbitrator, being a Government officer, was required by some rules to obtain the sanction of Government before acting as arbitrator, and we find that between the 24th September, and 5th October, representations were made to the arbitrator on behalf of the plaintiff by his karinda, Kalian Singh, that the arbitrator should return the case to the Court without any award. Further, the arbitrator was aware that efforts were made on behalf of the plaintiff to prevent, if possible, the requisite sanction being granted by Government to the arbitrator. But the latter refused to return the case, and insisted upon making an award.
10. These circumstances would not in themselves have been of much consequence had the further proceedings of the arbitrator been free from even more serious objections. On the 27th September the arbitrator directed the parties to be informed that the investigation would be held on the 5th October, and that 'whatever proof they may have in their possession they should produce at Bulandshahr.' Soon after, either on the same day or the next, the arbitrator went away to his home at Agra, and did not return till the 4th October, when two pleaders, Maulvi Ghulam Sibtain and Muhammad Nur Khan, were employed by the plaintiff to present a petition to the arbitrator, praying him to summon witnesses and to take documentary evidence. Nothing very definite appears to have been settled at that time, for the evidence of the pleaders shows that one of them understood that the case would be taken up the next day as fixed, and the other thought that the application had been granted; yet we find that after the pleaders had departed, the arbitrator passed an order rejecting the v application, on the ground that the evidence sought to be produced was not necessary. 'What happened then was that, on the 8th October 1881, the plaintiff made a written application to the arbitrator, complaining of his having examined Khushal Kuar when the plaintiff was not present or represented, and also of having received a fabricated document, which purported to be an authority to Khushal Kuar from her deceased husband to adopt a son. The petition went on to pray for further time to enable the plaintiff to produce evidence, but it was rejected by the arbitrator on the 10th October 1881. To use the language of the learned Subordinate Judge: 'On the 4th October 1881 and the 5th and the 6th October, the arbitrator took down the depositions of the witnesses adduced by the defendant in the absence of the plaintiff and his pleader, and afterwards, up to the 24th October, he did not record any award: on the 25th he made an award.'
11. Into the terms of that award it is not necessary to enter in detail. It is enough to say that its effect is to hold that the defendant Ganga Sahai was duly adopted by Khushal Kuar under an authority given to her by her deceased husband Hira Singh, that the adoption being therefore valid the adopted son had a good title to the estate, which could not be impugned by the plaintiff. Into the case set up against the validity of the plaintiff's adoption by Chandan Singh the arbitrator considered it unnecessary to enter, and he dismissed the suit upon the ground already indicated.
12. The award having arrived, the Court below on the 26th October 1881, allowed the usual ten days to the parties for objections, and the plaintiff on the 1st November filed a petition of objections, complaining of the whole proceedings of the arbitrator. The Court, by the order to which reference has already been made, set aside the award on the 24th April 1882, and directed the trial to proceed as if no arbitration award had been made.
13. This order, it has been argued on behalf of the appellant, was illegal, as, under the circumstances of the case, it was not open to any of the objections contemplated by Section 521 of the Civil Procedure Code. And in support of this contention, among the cases cited is Soobul Thakur Opadeeah v. Punchunund Tikha, S. D A., L. P., 1848, p. 115, to show that the examination of witnesses by the arbitrator, in the absence of one of the parties, would not vitiate the award. It is enough to say that the case was decided under Regulation XVI of 1793, which has long since been repealed, and I decline to accept its authority as applicable to this case. Again, the next case cited, Reedoy Kristo Mujoomdar v. Puddo Lochun Mujoomdar,1 W. R., 12, seems to me to be wholly inapplicable to this case. So are also Sada Ram v. Beharee, S. D. A., N. W. P., 1864, vol. ii, p. 399, and Parus Dass v. Khoobee, S. D. A., N. W.P., 1861, vol i, p. 199, where no question of misconduct was ruled upon, and which were passed under the old law no longer in force. Nor do the mostrecent cases, Howard v. Wilson, I.L.R., 4 Cal., 231, and Bhagirath v. Ram Ghulam I. L. R., 4 All., 283, which have been relied on, touch the present case, and I consider it wholly unnecessary to point out the obvious distinction. Equally useless is Wazir Mahton v. Lulit Singh, I.L.R., 7 Cal., 166, for the purposes of the applicant's case; for what was ruled there was the question whether an appeal would lie, in the circumstances of that case, under the Code of 1859. Indeed, the only case cited on behalf of the appellant upon this point which requires any observations is Nainsukh Rai v. Umadai I. L. R., 7 All., 273, to which I was a party, and concurred in the judgment of my brother Oldfield. Having carefully read the report of the case, I am of opinion that it is distinguishable from the present case, and does not support the appellant's contention. The main point ruled in that case, following the ruling of the Privy Council in Pestonjee Nussurwanjee v. Manockjee, 12 Moo., I. A. 112, was that a purely arbitrary revocation of submission to arbitration cannot be allowed, and that the award cannot be set aside by the Court on the mere surmise that the arbitrator has been partial. This is all that was ruled in that case, and the head-note in the report gives due effect to it. But what the learned pleader for the appellant contends is that the judgment goes further, and lays down that the arbitrator's refusal to take evidence would not amount to misconduct. But it is clear from the report of the case itself that there the defendant himself did not produce the account-books, though required to do so, a state of things very different to the proposition contended for in this case.
14. For these reasons I am of opinion that none of the cases cited by the learned Pandit on behalf of the appellant helps this part of his argument, and because the matter has evidently created some misapprehension, I will state my views as to the rules of law which, in my opinion, govern cases like the present.
15. It is a well understood rule of law that arbitrators being, as Mr. Justice Story somewhere calls them, 'the chosen Judges of the parties,' their awards are final and conclusive judgments, subject of course to certain rules and restrictions. The principle is recognized by our Civil Procedure Code in Section 522, whilst the grounds for setting aside the arbitration award are specified in Section 521, of which clause (a) mentions 'corruption or misconduct of the arbitrator or umpire' as a sufficient reason for vitiating the award. And the question here is, whether the clause does apply to the proceedings of the arbitrator in this case.
16. No case of corruption has been made out, and the determination of the question therefore depends upon the interpretation of the word 'misconduct' with reference to the circumstances of this case. That word is a well-recognized term of English law with reference to arbitration proceedings, and I can see no reason why the word, as it occurs in our Code, should be interpreted in any other sense. There is nothing in the Code to give the expression any other meaning; and, speaking for myself, I am perfectly willing, sitting here as an Indian Judge, to adopt the language of Mr. Russell in his well-known work, On the power and duty of an Arbitrator, (4th ed., p. 646) and the cases on which he relies, when be says: 'There may be ample misconduct in a legal sense to make the Court set aside an award, even where there is no ground for imputing the slightest improper motive to the arbitrator. Thus the award will be set aside, if the arbitrator refuse to postpone a meeting for the purpose of allowing a party time to get counsel on his part, where the other side unexpectedly appears by counsel; so if he receives affidavits instead of viva voce evidence when he is directed to examine the witnesses on oath; but not if he omit to swear the witnesses, and the party at the meeting do not request him to administer the oath, or, after objecting, subsequently acquiesce in the mode of examination. The award may be impeached if the arbitrator make his award without having heard all the evidence, or having allowed the party reasonable opportunity of proving his whole case. So also, if contrary to the principles of natural justice, he examine a witness or a party privately, or in the absence of his opponent, unless the irregularity be consequently waived by the parties. If the arbitrator proceed ex parte without sufficient cause, or without giving the party absenting himself clear notice of his intention so to proceed, the award will be avoided. So, likewise, if he refuse to hear evidence on a claim withinthe scope of the reference, on a mistaken supposition that it is not within it; but not if he erroneously reject admissible or receive inadmissible evidence. His refusing to hear additional evidence tendered, when the whole case is referred back to him by the Court, is fatal; but not so when the award is sent back with a view to a particular amendment only being made.'
17. I think that nearly the whole of this passage applies to the circumstances of this case, relating to the arbitrator's proceedings. Then, with reference to the rest of the facts proved by the plaintiff against the validity of the award, and especially with regard to the manner in which the arbitrator refused the plaintiff's petition of the 4th October 1881, to be allowed to produce evidence, I cannot do better than quote another passage from Mr. Russell's work (pp. 181, 182): 'An arbitrator can hardly be too scrupulous in guarding against the possibility of being charged with not dealing equally with both parties. Neither side can be allowed to use any means of influencing his mind which are not known to, and capable of being met and resisted by, the other. As much as possible, the arbitrator should decline to receive private communications from either litigant respecting the subject-matter of the reference. It is a prudent course to make a rule of handing over to the opponent all written statements sent to him by a party, and to take care that no kind of communication concerning the points under discussion be made to him without giving information of it to the other side. Except in the few cases where exceptions are unavoidable, as where the arbitrator is justified in proceeding ex parte, both sides must be heard, and each in the presence of the other. However immaterial the arbitrator may deem a point to be, he should be very careful not to examine a party or a witness upon it, except in the presence of the opponent. If he err in this respect, he exposes himself to the gravest censure, and the smallest irregularity is often fatal to the award. Where some witnesses attended before the arbitrator to give evidence on behalf of the defendant, and he, notwithstanding the parties, pursuant to his recommendation, have agreed to produce no more evidence, received the testimony of these witnesses, the parties and solicitors on both sides being absent, Lord BLDON, C., set aside the award on the ground that the evidence had been improperly admitted, although the arbitrator swore that the evidence thus received had had no effect on his award, the learned Judge being of opinion that no Court should permit an arbitrator to decide so delicate a matter as whether a witness, examined in the absence of one of the parties, had an influence on him or not.'
18. Now these passages, whilst they show that the term 'misconduct,' when applied to the proceedings of arbitrators, does not necessarily imply moral turpitude, also show what the duties and responsibilities of arbitrators are, and what Courts of justice expect from them before allowing finality to their awards. And I may add that I have dwelt upon this subject at such length because the learned pleader for the appellant pressed his argument upon this part of the case at considerable length, and also because the matter does not seem to be fully understood in the mufassal. In the result, I have no hesitation in holding that the arbitration award in this case was bad in law, and that the learned Judge of the Court below acted rightly in setting it aside under Section 521 of the Civil Procedure Code.
19. The other facts relative to the proceedings in this case, which [need mention here, are that during the pendency of the objections to the award, Khushal Kuar died on the 8th December 1881, whereupon one Chattar Singh applied to be appointed Ganga Sahai's guardian ad litem, on the ground that Bhawani Kuar Was taking no interest in the case. The application was granted, and Bhawani Kuar's name was removed from the record. Chattar Singh was therefore acting as the guardian of Ganga Sahai when the award was set aside by the order of the 24th April, and he applied to this Court, under Section 622 of the Civil Procedure Code, for revision of that order, but the application was rejected on the 1st February 1883, by an order of Oldfield and Brodhukst, JJ.--see Chattar Singh v. Lekhraj Singh I. L. R., 5 All., 293. The case having already been so long delayed, further proceedings were impeded by the action of the plaintiff, who, on the 23rd June 1883, made an application to the lower Court, under Section 373 of the Civil Procedure Code, to be allowed to withdraw from the suit with liberty to bring a fresh suit. The grounds of the application were, that the suit was mainly declaratory in its nature, as the plaintiff's right of possession could not accrue during the life-time of Khushal Kuar, whose death altered the circumstances which would render the matter fit for a subsequent suit, in which posession and mesne profits of the property in suit might be claimed. The reasons appear to have been accepted by the lower Court, which granted the application, but the order was set aside by this Court in the exercise of its revisional powers under Section 622 of the Civil Procedure Code, on the 4th February 1884. The judgment which was delivered by Oldfield, J., and concurred in by BRodhurst, J., has been reported in Kalian Singh v. Lekhraj Singh I. L. R., 6 All., 211, and its effect was to direct the Court below to proceed with the case on the merits. Meanwhile, one Kalian Singh (who must be distinguished from the plaintiff's karinda of that name) had been appointed Ganga Sahai's guardian, and the case was tried on the merits by the Court below, ending in a decree in favour of the plaintiff on the 18th April 1882. And it is from this decree that Ganga Sahai has preferred this appeal through his guardian Kalian Singh.
20. Having so far stated the nature of the proceedings, and disposed of the preliminary questions as to the validity of the arbitration award, I think it proper, before entering into the merits of the litigation itself, to say that no other objection in limine, as to the form of the suit, has been urged before us, either in the grounds of appeal or in the course of argument, on behalf of the defendant appellant. The main relief prayed for in the suit is of the nature contemplated by Section 42 of the Specific Belief Act (1 of 1877), and my judgment will proceed upon the assumption that there is no contention as to the suit being maintainable in its present form notwithstanding the death of Khushal Kuar. Indeed, I take the matter as settled by the order passed by this Court on the 4th February 1884, to which reference has already been made. But in view of a very recent ruling of the Lords of the Privy Council in Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri I. L. R., 13 Cal., 308, it seems desirable to dispose of the question of limitation, which we are bound to notice under Section 4 of the Limitation Act (XV of 1877). In my opinion the ruling is wholly inapplicable to this case, and much need not be said to distinguish it from the present case. In the first place, in the case before their Lordships of the Privy Council, the adoptions sought to be set aside as invalid were admitted facts, the factum being not matter of contention. To use their Lordships' own words: 'The plaintiffs have recognized the adoptees as such for many years in formal instruments and proceedings, and even those parts of the property now sued for have been recovered from the plaintiffs in suits instituted on behalf of the adopted sons by the manager of their estate during their minority.' Further remarks made by their Lordships show that the contention proceeded entirely upon the legal validity of adoptions which had actually taken place, and were for many years within the knowledge and cognizance of the plaintiffs. Here the very fact of the defendant's adoption is disputed, and the plaint in paragraph 8 distinctly states that for the first time on the 5th April 1881, in a document called a will of Musammat Khushal Kuar 'it was falsely given out that she had adopted the aforesaid Ganga Sahai (defendant) under the will of her husband after the death of Rukam Kuar, and made him her husband's successor.' Again, the next paragraph in the plaint distinctly states that ' the plaintiff was informed of all these particulars after the registration of the said document, and that is the time the cause of action arose.' It is true that the statement was met by an allegation contained in paragraph 4 of the written defence, which says: 'Ganga Sahai was adopted in April 1871, and the plaintiff is aware of it. Hence this claim is beyond time. The plaintiff's allegation, that the 5th April 1881, is the date on which the cause of action arose, is wrong.' But notwithstanding this plea, it has not been shown that either the plaintiff's adoptive father Chandan or the plaintiff himself, who was admittedly a minor at the time of the alleged adoption, ever heard of such a ceremony before April 1881, when Khushal Kuar's will was registered. These circumstances alone are sufficient to distinguish this case from that before the Lords of the Privy Council. But there is even a more cogent reason why that ruling does not apply to the present ease. The case before the Privy Council was governed by Article 129, Schedule ii of the Limitation Act (IX of 1871), which has been materially altered and superseded by Article 118 of the present Limitation Act (XV of 1877), which applies to the present case. And their Lordships themselves have taken occasion to point out the change of law, for they say 'it is worth observing that in the Limitation Act of 1877, which superseded the Act now under discussion, the language is changed. Article 118 of 1877, which corresponds to Article 129 of 1871, so far as regards setting aside adoptions, speaks of a suit to obtain a declaration that an alleged adoption is invalid or never in fact took place', and assigns a different starting point to the time that is to run against it.' That starting point under the present Act is, 'when the alleged adoption becomes known to the plaintiff,' and here there is nothing to show that the plaintiff had such knowledge more than six years before the suit, which is the period of limitation provided for such suits in the law by which this suit was governed.
21. I now proceed to deal with the merits of the case itself, and in doing so it will be convenient to recapitulate the facts or allegations which gave rise to the main questions upon which the decision of the case depends. And the following table, which, omitting unimportant names, has been extracted from the pedigree given in the lower Court's judgment, indicates the relative natural positions of the parties and some other persons to whom reference is necessary, as held to be proved by the Court below:
| | | |
Kewal. Hira. Chandan. Bhup.
| | |
Balwant. Lekhraj. Narain.
| | |
__________________ _______________ _________________
| | | | | |
Ganga Sahai, Basdeo. Sheobaran. Roshan, Kalian, Lekhraj,
defendant. alias Rup. alias Karag, plaintiff.
22. Ghansam and his descendants belong to the Cshatriya or military class who admittedly rank among 'the twice-born classes' as second only to Brahmans in the division of the human race under the ordinances of Manu, and it may be stated at the outset that the names of Ghansam and his sons Chatarbhuj and Jagan, as well as of the latter's descendants, are of consequence in this pedigree for the sole object of showing the relationship by blood which the plaintiff claims with Chandan, whose adopted son he alleges himself to be. But the persons with whom the facts of this case are really concerned, are Jairam and his descendants, whose names are important in stating the history of the case.
23. Jairam was possessed of a large zamindari estate called taluka Somna, in the district of Aligarh, and upon his death his property devolved upon his three sons, Kewal, Hira and Chandan, who would, as the normal state of things in Hindu families, remain joint and undivided. The plaintiff's case is that, upon the death of Kewal some time in 1827, a partition took place in the family whereby their shares and residences were separated and commensality ceased; and that in this division the property left by Jairam was divided into three shares: Kewal's sons, Balwant and Lekhraj, getting the Somna estate, and Hira receiving the Birpura estate, whilst the Gabhana estate fell to the share of Chandan. So far there is no definite contradiction of the plaintiff's case, nor does anything very much turn upon the question, because throughout this litigation Hira and his brother Chandan have been regarded as admittedly separated--a fact which is, moreover, perfectly clear from the circumstances of the family.
24. Lekhraj (son of Kewal) died some time before 1864, leaving the three sons whose names appear in the pedigree. Hira Singh died childless on the 6th June 1864, leaving two widows, Khushal Kuar and Rukam Kuar, and for the present it is enough to say that, notwithstanding some objections raised by his brother Chandan, the names of both the ladies were entered in the Government revenue records as in possession of his estate as childless Hindu widows. This was done by the order of Raja Jeykishen Das, Deputy Collector, dated the 23rd May 1865, which, after saying that, if 'Thakur Chandan Singh has any claim in respect of the entire mahal, such right can be decided by the civil Court,' goes on to say: 'Whereas Musammat Khushal Kuar, the first wife of Thakur Hira Singh, deceased, wishes her name inserted in the column of pattidars, and the name of Musammat Rukam Kuar in the column of lambardars, by mutual consent, and actual transfer of the possession has been effected, it is ordered that the name of deceased (Hira Singh) be struck off and that of Musammat Rukam Kuar be inserted in the column of lambardars, and that of Khushal Kuar in that of pattidars.' Their succession as such does not appear to have been contested by Chandan in any regular litigation, and I think it may be taken, as indeed it has been all along assumed in this suit, that their position was that of widows succeeding to their husband's estate together as a single heir with rights of survivorship which the Hindu law provides, and in this manner they appear to have continued in joint possession. While matters stood thus, it is alleged by the plaintiff', and wholly denied by the defendant, that Chandan, being childless, duly adapted the plaintiff Lekhraj, on the 22nd November 1866. Chandan died on the 14th December 1870, leaving two widows, Bhawani Kuar and Nem Kuar, whose names are referred to in the evidence.
25. Similarly, it is alleged on behalf of the defence, but denied by the plaintiff, that on the 22nd April 1871, Khushal Kuar, with the concurrence of Rukam, adopted Ganga Sahai, in conformity with an authority conferred upon her by her husband. This point, however, belongs to a later part of the case and need not be gone into here. But it may be added here that Balwant, the other son of Kewal, died in 1872, leaving two sons, one of whom is Ganga Sahai, defendant-appellant.
26. The next important fact is that, on the 25th December 1874, Rukam Kuar died, and by right of survivorship the whole estate remained in possession of Khushal Kuar, who was then recognized as the lambardar, and her name was entered as such in the revenue records on the 18th May 1875, after some objections had been preferred on behalf of the present plaintiff.
27. The next important fact to be mentioned is that not very long after the end of the dispute between the plaintiff and Khushal Kuar as to the entry of her name in the Government records, that lady executed a will on the 7th March 1877, in which she recited that she had adopted Ganga Sahai under an authority given to her by her deceased husband. What followed was that, on the 5th April 1881, she executed a codicil, in which, after repeating the recital as to the adoption of Ganga Sahai, she went on to say,--'He has, since the period of adoption, been living with me in mauza Birpura as the representative of Thakur Hira Singh,' her deceased husband. Then follows a somewhat significant passage, which may appropriately be quoted here: 'The aforesaid Ganga Sahai is the great-grandson of Thakur Jairam, the common ancestor, and under the provisions of the Hindu law, he is entitled, in his own right also, to get the estate of Thakur Hira Singh and Thakur Chandan Singh; and it is possible that the said Kuar Ganga Sahai may bring a claim to get the estate of Thakar Chandan Singh, deceased, taluqdar of Gabhana.' The document was registered on the 7th of April 1881.
28. Such, are the main facts and allegations which preceded this litigation and have given rise to it. The plaintiff states that he came to know of these facts after the registration of Khushal Kuar's will, which, he contends, virtually amounts to a deed of gift in favour of Ganga Sahai; and upon this allegation he prays the aid of the Court to declare that the defendant Ganga Sahai, as a matter of fact, was never adopted; that even if Khushal Kuar did ostensibly go through any ceremonies of adoption, they were legally null and void; and that all proceedings of the widow in the nature of transfer of her husband's estate will be invalid as to the plaintiff's rights after her death.
29. The suit was resisted by Khushal Kuar on behalf of herself and Gang Sahai, on many grounds; of which such as were technical pleas, in limine, have since been abandoned, and are not urged here either in the grounds of appeal or in the course of the argument. But one of such pleas it is necessary to mention, as will presently appear. The second plea on the part of the defence is thus stated in the written statement: 'The plaintiff is not fully twenty one years old as yet, and therefore he cannot bring a suit in his own right.' Some evidence was taken upon this point in the Court below, and the plain till' was found to be sui juris when he instituted the suit, the question of majority in his case being governed by the rule of 21 years provided by Section 3 of the Indian Majority Act (IX of 1875), as his adoptive mother, Nem Kuar, subsequent to the death of her husband Chandan, had obtained a certificate of his guardianship under Act XL of 1858. The plea of the plaintiff's minority has not been repeated here, but the evidence taken upon it has been utilized as affording ground for the contention pressed upon us by the learned Pandit in support of the second ground of appeal, that the plaintiff must be held to have been more than five years of age at the time of his alleged adoption by Chandan on the 22nd November 1866, and that the adoption was therefore invalid under the Hindu law.
30. The main pleas in defence, however, in the Court below were that, as a matter of fact, the plaintiff was never adopted; that even if he was adopted, 'Chandan Singh had no authority to adopt the plaintiff, a stranger, or any one else, in presence of his nephews and their descendants;' that, independently of a valid adoption, the plaintiff had no right of succession to the estate of Hira Singh; that 'Ganga Sahai is the natural heir and entitled to the property in question, and was adopted lawfully, with the permission and under the will of Thakur Hira Singh, by the performance of religious ceremonies and the observance of the rules of the Hindu law, and became Thakur Hira Singh's successor, with the consent of the nearest heirs of the family.'
31. This state of the pleadings, and the manner in which the case has been presented to us in the argument at the bar, divide the case into the two main branches which I have indicated at the outset; one relating to the title of the plaintiff-respondent, and the other to that of the defendant-appellant. And dealing with the case in this manner, the points at issue which require our determination may be conveniently analyzed.
32. As to the plaintiff's title, the points are
(1) Was the plaintiff, as a matter of fact, adopted by Chandan?
(2) If so, was he a total stranger to the family so as to preclude him from being adopted by Chandan in the presence of near relations descended from Jairam?
(3) If not, was the plaintiff above five years of age on the 22nd November 1866, when he was adopted? and
(4) If so, was his adoption null and void under the Hindu law applicable to the case?
33. It is perfectly clear to me that, with the exception of the third point above-mentioned, if any of the other points are decided against the plaintiff, his suit must be dismissed for want of locus standi, and without entering into the validity of the defendant's title, who has been represented by Khushal Kuar as the rightful owner, and who, at least since the death of that lady on the 8th December 1881, has been in possession of the property in suit. Nor can there be any doubt that, irrespective of his adoption by Chandan, the plaintiff, even if his descent from Ghansam be admitted as stated by him, would have no right whatsoever to inherit Hira Singh's estate. On the contrary, the defendant, Ganga Sahai, would be among the heirs of Hira Singh, even if his alleged adoption is held to be null and void. This being so, the defendant's title needs no adjudication if the validity of the plaintiff's adoption is not fully established. But if that is established, it will be necessary to enter into the second branch of the ease, which relates to the defendant's title. The questions, then will be:
(1) Was Ganga Sahai, defendant, as a matter of fact, adopted on the 22nd April 1871, by Khushal Kuar, with or without the concurrence of the other widow, Rukam Kuar?
(2) If so, was such adoption made under an authority given by Hira Singh? and
(3) If not, is such adoption valid under the Hindu law applicable to this case?
34. And I may here say that if the plaintiff's adoption is held to be valid, the failure of the defendant-appellant to establish his title by adoption will prove fatal to his case, and the decree of the lower Court must be upheld. And I have considered it necessary to say so in order to express the comparative significance which I attach to the various points in the case, and I will deal with them in the order in which I have stated them.
35. First, then, as to the factum of the plaintiff's adoption, which, of course, is a pure matter of the weight of evidence. And the evidence produced is both oral and documentary. The date of the adoption is stated to be Katik Sudi 15, Sambat 1923, corresponding to the 22nd November 1866, and the oral evidence on the point may be classified under two heads, that is, witnesses who depose as to their having been present at, or taken part in, the actual ceremony, and those who were invited on the occasion as guests to join the celebration and festivity which usually takes place on such occasions.
36. Among the first class of these witnesses, I think the testimony of Narain Singh, the natural father of the plaintiff, is the most important. He naturally would be a person who would have the most vivid recollection of the circumstance of giving his own son away to be the son of another, and his evidence goes into somewhat minute details, and I think has very well stood the cross-examination to which he was subjected. I will here quote a whole passage from his deposition (correcting the mis-spelling of names), as his statement is supported in all the essential and main features by the other witnesses of the ceremony. And I may here state that the expression 'mother of Lekhraj,' is used by the witness because, according to Hindu customs and manners, a husband does not mention the name of his wife: 'The mother of Lekhraj was, with Nem Kuar, the wife of Chandan Singh, sitting beside Chandan Singh, with the corner of her sheet tied with the corner of the sheet of her husband. When I reached there, my wife was sent for from inside the house, and the corners of our sheets were tied together. When this was done, the Pandit said the Lala (boy) should be sent for. Durga, parohit, brought Lala Lekhraj Singh from the Kachari. Lekhraj Singh came and sat on my lap. The Pandit commenced to perform the ' Homa.' At the performance of the Roma, Thakur Chandan Singh and I were then made to do puja (worship); water and betel-nut were thon put in my hand, and I was told to put the water and nut in the hand of Chandan Singh, and then to place the Roy on his lap. I and my wife lifted up Lekhraj Singh. My wife placed her hand in contact with mine. The Thakur Sahib and the Thakurain Sahib said, 'Give us the boy.' Both of them took the boy, keeping their hands in contact with one another's. The Pandits had told me to hold the water and the nut so long as they recited the sacred texts and to hand them over to Chandan Singh after they had done reciting. I did as desired. When Thakur Chandan Singh and Nem Kuar placed the Roy on their laps, the Pandits told me that the Roy was no longer mine, but of Chandan Singh. The Homa continued till after this. The sheets of Chandan Singh and Nem Kuar remained tied, while the sheets of me and my wife were untied. My wife went into the zenana, while I came away to the Kachari of Chandan Singh, where I was putting up. Chandan Singh and Nem Kuar remained sitting there and the Homa was proceeded with. In respect of Lekhraj Singh, Chandan Singh told Nem Kuar that 'he was her son.''
37. The testimony of Narain Singh on this and other really essential points is supported by Priya Lal, the Brahman,--one of those priests who performed the religious ceremony on the occasion. The other witnesses of the ceremony are Fateb Singh, who belongs to the same clan as the deceased Chandan Singh, and was also a connection of the family, and a respectable witness. Another member of the clan summoned as a witness was Lachman Singh, an old man of sixty years of age, but his evidence, though supporting the plaintiff's case, relates to another occasion. But the evidence of Kallu, a barber by caste and an old servant of Chandan Singh, is reliable to establish the fact of the adoption, and is supported by the testimony of Murlidhar, who, though a Sarogi, swears to having been present on the occasion. The learned Pandit, who argued the case on behalf of the appellant, devoted a great deal of his argument in pointing out minute matters in the statements of these witnesses which were not fully consistent. But in dealing with the evidence of witnesses who depose to events which took place so many years ago, a too critical standard of accuracy is scarcely possible. Nor should such testimony be put down as wholly untrue because on small questions of detail the witnesses are not absolutely consistent. And as I believe these witnesses on the main points, I need only add that the evidence of those who were invited as guests, viz., Kazi Latafat Husain and Ganga Sahai, pleaders, and, having as such professional relations with Chandan Singh, deserves enough weight to render the plaintiff's case independent of the evidence of Jan Ali Khan, to which I attach no significance.
38. But the plaintiff's case does not rest here, for there is an unusually large amount of documentary evidence in the case upon the factum of his adoption by Chandan Singh. And on this part of the case, I think that the remarks of the learned Judge of the Court below are very pertinent. 'The fact of Lekhraj Singh's adoption became fully known in the life time of Chandan Singh, and it was given out by Chandan Singh himself in a positive manner. The evidence fully establishes that there was no affection between the other near members of the family and Chandan Singh, and this is the reason why Chandan Singh did not adopt any one from the branch of Kewal Kishen. This circumstance was especially resented by the descendants of Balwant Singh and Lekhraj Singh. For this reason, Chandan Singh did not content himself merely with performing the ceremonies of Lekhraj Singh's adoption? but on the 13th March 1867, he executed a will, which he deposited, duly sealed, in the office of the Registrar of the Aligarh district. On the 29th March 1867, this will was deposited through the general attorney of Chandan Singh. It is clearly mentioned in the will that Lekhraj is his adopted son and that the said adopted son will, on his death, be the owner of his property, &c.; At the same time, Chandan also wished to make it known to the Revenue Court in a clear and distinct manner. Accordingly, he presented an application to the Collector on the 14th March 1867, that the name of his adopted son Lekhraj Singh might be entered in the column of ownership, regarding the entire estate, with himself as sabarakar. An order was passed upon it that the petitions should be filed with reference to each village, and under this order petitions were filed.'
39. The will of the 13th March 1867, has been produced and its genuineness has not been doubted, though some attempt has been made to argue that Chandan Singh was not fully cognizant of its contents, for the plea in respect of the document is contained in paragraph 8 of the written defence, which runs as follows: 'Thakur Chandan Singh was under the control of his second wife, Thakurian Nem Kuar. The will of Thakur Chandan Singh and the plaintiff's adoption have been given out falsely and collusively at the instance of Narain Singh, the plaintiff's father, with a view to defeat the title of the rightful heirs.'
40. But the case so set up has not been made out. The evidence of Kazi Latafat Husain, pleader, proves that be, at the request of Chandan Singh, and in consultation with another pleader, prepared the draft of the will. The evidence of Bansidhar proves that Chandan Singh signed and sealed the will. It was deposited by way of registration on the 29th March 1867, by Partab Kai, who was in the service of Chandan Singh, and, under a mukhtarnama dated the 1st January, produced in evidence, was empowered to register documents on behalf of his master. The will was kept at the registration office in a cover which was not opened till the 16th January 1871, that is, after Chandan Singh's death. The will, in my opinion, stands above doubt, and its terras are so reasonable that they afford no indicia of undue influence. On the other hand, the will places the fact of the plaintiff's adoption beyond question--a conclusion fully borne out by what followed.
41. It is admitted that on the 14th March 1867, (the day following the will) an application was made on behalf of Chandan Singh to the revenue authorities in respect of the entry of Lekhraj's name in the Government records. The petition is unfortunately not on the record, but this defect does not do much to injure the plaintiff's ease. For soon after, on the 9th April 1867, Chandan Singh made another application be the revenue authorities, praying 'that the name of the adopted son be entered as proprietor for Gabhana, and that my name be removed from the column of proprietor and be entered as sarbarakar or managor.'
42. If must be here observed that Gabhana was the central village of Chandan's estate, and the place where he resided. A similar application was made on the 15th April 1867, in respect of another village, and both these applications were verified by Chandan himself under the usual practice of revenue authorities, as is shown by the evidence of Ram Prasad and the record itself. On the 9th July 1867, the name of Lekhraj was actually entered in respect of one village. The other application was opposed by Balwant (the defendant's natural father) and his nephews the sons of Lekhraj, by their petition of the 25th June 1867, and to this a reply was Bled on the 28th June 1867, on behalf of Chandan, in full terms, which state the history of the family property and affirm the plaintiff's adoption. Yet the objections of Balwant and others prevailed on the 10th July 1867, on the ground that the transfer of possession in favour of Lekhraj was not proved.
43. But the documentary evidence does not stop here. When the new settlement began, Chandan Singh again, by an application dated the 21st November 1867, repeated his request as to the entry of Lekhraj's name in respect of Gabhana, stating him to be the adopted son, and made a similar application on the 10th December 1867. Both these were again opposed by Balwant and others by a petition dated the 31st January 1868, which again elicited a written reply from Chandan in an application dated the 10th February 1868. The objections again prevailed, and the mutation of names was disallowed by the assistant settlement officer on the 6th March 1868, partly upon the ground that the will of Chandan did not transfer ownership to Lekhraj (plaintiff), and partly because ' dispute is pending between the petitioning party and objector, and the whole matter will not improbably go before a civil Court.'
44. The main point of the argument addresesd to us against these pieces of evidence was that Chandan himself may have never understood the contents of the applications. But it is an argument too feeble to deserve much notice. It is wholly inconceivable to me that in a state of such disagreement between Chandan and his near relations by blood, the former could have continued ignorant of what was being done in his name in the Revenue Court. I accept these applications as representing the statements and wishes of Chandan, and, once they are so regarded, the question of the plaintiff's adoption is placed beyond the possibility of a doubt. This is a conclusion borne out by what happened afterwards. Chandan died on the 14th December 1870, and his widow, Nem Kuar, applied to the revenue authorities on the 21st January 1871, for the entry of the plaintiff's name, on the ground of his being the adopted son of the deceased. The application was again objected to by Balwant and his nephews, but the objections were disallowed by the settlement officer on the 24th February 1871, and the plaintiff's name was entered as the heir and successor of Chandan. Again, on the 18th of March following, Balwant and others made another application to the revenue authorities, in which, as the learned Subordinate Judge points out, the factum of the plaintiff's adoption was assumed, though its legal validity was questioned. In connection with some of the petitions above-mentioned, the deposition of Juala Prasad, pleader, may be consulted with advantage.
45. The whole of this oral and documentary evidence, when taken together, leaves absolutely no doubt in my mind that, as a pure question of fact, Chandan Singh did adopt the plaintiff Lekhraj. But against this conclusion the learned Pandit, on behalf of the appellant, has cited Mahashoya Shosinath Ghose v. Srimati Krishna Soondari Dasi, L.R.,7 I. A., 250, which, in my opinion, is wholly inapplicable to this case. What was ruled there was that the mere fact of the execution of certain deeds of gift and acceptance of a child, which were not shown to have been intended by the parties to operate as a complete adoption, would not amount to an adoption in the absence of proof that such an adoption actually took place. The ruling might, perhaps, with some plausibility, be relied upon, if Chandan Singh's will were the only evidence of the plaintiff's adoption, and no evidence as to the actual adoption had been adduced. But here, as I have already shown, there is ample evidence, both oral and documentary, to prove the factum of the adoption. Whether that adoption was valid under the Hindu law, has next to be considered with reference to the remaining three points of the plaintiff's branch of the case as stated by me.
46. And the first of these points is, whether the plaintiff had any relationship by blood with his adoptive father Chandan, and, if not, whether his adoption would on that account have been void. The question has arisen from the plea urged in paragraph 5 of the written defence, which runs as follows: 'The plaintiff is not, according to his allegation, a descendant of Thakur Jai-ram Singh, and therefore, in presence of the grandson of Kewal Kishen (the real brother of Hira Singh) the plaintiff, a stranger, cannot be a reversioner, or entitled to succeed to the estate of Hira Singh, nor can he offer cakes or libations to Hira Singh as against Ganga Sahai.'
47. Much importance was not attached to this part of the case by the learned Pandit, who has argued it on behalf of the appellant, but I think a few observations are required to dispose of the point. The pedigree given in the lower Court's judgment is sworn to by Narain Singh, the natual father of the plaintiff, and also by another witness, Lachman Singh, another descendant of Ghansam, through his son Sada Ram. The evidence of these witnesses as to the pedigree has not seriously been disputed, and I adopt the language of a note in Mr. Justice Field's work on the Law of Evidence in British India (p. 182) in saying that the testimony of Hindus as to the history of their family during preceding generations is occasionally more valuable than similar testimony given by persons of other races, certain castes of the Hindus observing it as a rule, in the education of their children, to teach them to repeat and keep in remembrance the names of their ancestors. At all events, the learned Judge of the Court below has believed the pedigree on the evidence before him, and I agree with his conclusions; and I may add that this particular point has not been specifically taken in the grounds of appeal. Bearing in mind, then, the abstract of the pedigree already stated by me, we have to consider the relative positions of the parties to the deceased Chandan, by relationship of blood; because an endeavour has been made on behalf of the appellant to contend that, even if the pedigree be accepted, the relationship of the plaintiff-respondent would be too remote to admit of his being validly adopted in preference to the respondent and other near relations. Before considering the legal aspect of the matter qua adoption, I am of opinion that the plaintiff, by reason of his natural relationship with Chandan, belonged to the same gotra as the latter. 'Goiraja relationship is the connection or relation of persons descended from the same stock or common ancestor. It includes lineal or collateral consanguinity. It not only includes male kinsmen, but also includes female ancestors from whom the deceased is descended.'--(Sarvadhikari's Hindu Law of Inheritance, p. 593). This passage is in accord with the observations of the Lords of the Privy Council in Bhyah Bam Singh v. Bhyah Ugar Singh, 13 Moo. I. A., 373, where their Lordships, in considering the rights of inheritance possessed by remote kinsmen, went on to say: 'Family union or connection derived from a common head, the founder of the family, may reasonably be regarded, amongst a patriarchal people, as the source of the entire class from which a succession of heirs may be derived. Again, as males are preferred to females in succession from religious reasons, this same class may be reasonably subject to the condition that the descent be generally derived from males who, for the same reason, may obtain a constant preference. The text of the whole of the fifth and sixth sections of the second chapter of the Mitakshara is in the strictest conformity to these principles. The gentiles or gotraja from the gotra, are described as descending from one common stock--a male-- and derived generally through males, as forming a family, though embracing, possibly, many families, and such original bond of union is regarded as necessary to the constitution of the gotra. These conditions are all that are stated as necessary to the constitution of the class of gentiles.' There can, therefore, be no doubt that the plaintiff belongs to the same gotra as Chandan, and it is equally beyond question that the natural relationship of the defendant to Chandan is much nearer than that of the plaintiff. In the table of succession given by Mr. Justice Cunningham at page 115 of his Digest of Hindu Law, the plaintiff would stand at No. 32, being Chandan's father's father's brother's son's son's son's son, and the defendant would stand at No. 11, being Chandan's brother's son's son. Fortunately, the question whether the remoteness of the plaintiff's relationship to his adoptive father Chandan, in comparison to the descendants of Chandan's brother Kewal, would ipso facto vitiate the plaintiff's adoption, is a matter which has been fully settled by a recent ruling of the Lords of the Privy Council in Srimati Uma Devi v. Gokoolanand Das Mahapatra, L. R. 5 I. A., 40, which, indeed, goes far beyond the exigencies of the present case; but in dealing with the question I cannot do better than cite a passage from the judgment of their Lordships: 'The plaintiff relies mainly upon certain texts of the Dattaka Mimamsa and the Dattaka Chandrika of which the former is considered by the Benares school to be the more authoritative treatise on the subject of adoption. The texts chiefly insisted upon are the 28th, the 29th, 30th, the 31st and the 67th slokas or paragraphs of the second section of the Dattaka Mimamsa; and the 20th, the 21st, the 22nd, the 27th, the 28th paragraphs of the first section of the Dattaka Chandrika. It is unnecessary to set out these at length, because it may be conceded that they do, in terms, proscribe that a Hindu wishing to adopt a son shall adopt the son of his whole brother, if such a person be in existence and capable of adoption, in preference to any other person: and qualify the otherwise fatal objection to the adoption of an only son of the natural father by saying that, in the case of a brother's son, he should, nevertheless, be adopted in preference to any other person as a dwyamushyayana, or son of two fathers. The grave question, however, that arises in this case is, whether the injunctions just referred to are merely binding upon the consciences of pious Hindus as defining what they ought to do, or are so imperative as to have the force of law, the violation whereof should be held in a Court of justice to invalidate an adoption which has otherwise been regularly made.'
48. Their Lordships then went on to say: 'Reverting, however, to the general question whether the omission to adopt a brother's son is an objection which at law invalidates an adoption otherwise regularly made, and so destroys the civil status of the person thus adopted, even after, as in this instance, years of recognition, their Lordships have to observe, in the first place, that they have been referred to no case in which a Court of justice has so decided.' Their Lordships then proceeded to consider the various authorities on the subject, and adopting the opinions of Sir William Macnaghten and Sir Thomas Strange, laid down the general principle of law that where the Hindu Shastras contain provisions directory in their nature with reference to the specification of certain relations as eligible for adoption in preference to others, the doctrine of factum valet applies, and that even in the Benares school the adoption of a very distant relation not included within the sapindas of the adoptive father, made in violation of the preferential right of the son of a brother of the whole blood, will be valid. I shall have something more to say upon the doctrine of factum, valet in considering a later part of the plaintiff's case; but I think that what I have already said as to the effect of the Privy Council ruling is fully sufficient to dispose of the appellant's contention as to the invalidity of the plaintiff-respondent's adoption, so far as that contention rested upon the remoteness of his relationship with his adoptive father.
49. The next question in the plaintiff's case (namely, that which stands as third among the points enumerated by me) is, whether the plaintiff was above five years of age oh the 22nd November 1866, when he was adopted by Chandan. This, of course, is a pure question of fact, and would be wholly insignificant but for the important question of law which the next point involves; for it has been contended with considerable emphasis by the learned Pandit on behalf of the appellant, that the adoption of a boy above the age of five years is, ipso facto null and void under the Benares school of Hindu law, which admittedly governs the present case. The legal question 1 shall consider later on, but in the meantime it is important to see how the question of fact as to the plaintiff's age stands with reference to the evidence upon the record.
50. I have already stated that among the pleas in limine which have been abandoned by the defence, was one which stated that the plaintiff had not attained the age of 21 years, and was therefore not sui juris, on the 2nd July 1881, when he instituted the suit. The plea formed the second paragraph of the defendant's written statement. It may at once be said that the language of the plea could in no sense be understood to raise the question that by any rule of law or custom the plaintiff's adoption would be a nullity if he was older than five years at that time. Nor was any specific evidence taken with reference to the exact age of the plaintiff at the time of his adoption. But, as already observed, the general question as to his age being above 21 years at the time he instituted this suit, formed the subject of the second issue in the Court below. And upon that issue the Court below found that the plaintiff could maintain the suit sui juris on the 2nd July 1881. The matter therefore stands thus, either the plaintiff was a major (that is 21 years old) or not, when he instituted the suit. If he was a minor, the suit was not maintainable by him sui juris. On the other hand, if he had attained the age of 21 when he instituted the suit, it follows, by necessary inference, that he must have been born some time before the 2nd July 1860, and would be more than five years of age on the 22nd November 1866, when he was adopted. Indeed, by this calculation his age at the time of his adoption would exceed six years. Again, if the plaintiff's age on the 22nd November 1866, the date of his adoption, be assumed to have been below five years, it would necessarily follow that he was not sui jurin on the 2nd July 1881, when the suit was instituted, for he would not by this calculation attain the age of 21 years before the 22nd November 1882.
51. But, indeed, the question of the plaintiff's age does not rest entirely upon this inferential reasoning. The general question of age was clearly before the lower Court, and the parties had ample opportunity to produce evidence upon the point. And this being so, I think the learned Pandit was perfectly right in resisting Mr. Hill's contention before us, to the effect that if we attached importance to the question of the exact age of the plaintiff at the time of his adoption, we should remand the case to the Court below for the trial of the issue under Section 566, Civil Procedure Code, or take further evidence here under Section 568. The Lords of the Privy Council have on more than one occasion expressed the view that cases should not be remanded simply to enable the parties to produce any evidence which they might very well have produced at the proper time in the Court of First Instance, the question upon which the further evidence is sought to be produced being clearly before the Court of First Instance. And I think there was considerable force in the argument of the learned Pandit on behalf of the appellant when he said that the mere circumstance that the evidence as to the plaintiff's age is now sought to be utilized for a purpose other than that for which it was produced, will not entitle either party to claim a remand or a retrial of the issue. I accept this contention, and now proceed to consider the evidence already on the record, with the object of deciding the specific question whether on the date of his adoption, viz., the 22nd November 1866, the plaintiff was above or below the age of five years.
52. And upon this question I think the circumstances of the case and the evidence upon the record leave no doubt. We find among the documentary evidence produced by the plaintiff-respondent himself, an application made by his adoptive mother, Nem Kuar, to the Judge of Aligarh, praying that a certificate of guardianship, under Act XL of 1858, might be granted to her in respect of the person and property of her minor adopted son Lekhraj, plaintiff. The application was made some time before the 21st January 1871, (for it bears an order of that date) and therein the age of the plaintiff is stated to be ten years, and it is clear from the order of the Judge, dated the 13th February 1871, that it was upon that assumption that the application was granted, after some objections made by Balwant Singh and others, descendants of Chandan's brother Kewal. Another document produced by the plaintiff is an order of Mr. Watson, Judge of Aligarh, dated the 19th September 1877, from which it appears that an application had been made by the plaintiff 'on the 5th January 1877, in which he represented himself to have arrived at his majority, having, as he said, attained the age of 18 years.' It also appears that upon that application the certificate of guardianship was either cancelled or recalled, and Mr. Watson's order just referred to restored the certificate of guardianship to Nem Kuar, treating the plaintiff's age as having been ten years when the certificate was originally granted in 1871. Nor does the documentary evidence stop here, for there is upon the record an order of Mr. Moore, Judge of Aligarh, dated the 2nd January 1880, from which it appears that shortly before that date the plaintiff applied again to be declared a major, and upon the admission of his adoptive mother, Nem Kuar, the plaintiff's application was granted by the Judge, and the certificate of guardianship cancelled. Now all these documents relate to proceedings taken under Act XL of 1858, in a Court of justice, authorized by law to deal with questions of minority in respect of the guardianship of infants. The question of the minor's age in such proceedings is necessarily the subject of consideration; and in view of the fact that the plaintiff' himself has relied upon them to establish his right to institute this suit sui juris on the 2nd July 1881, I am of opinion that their general effect is to show that the plaintiff was older than five years on the 22nd November 1866, when he was adopted. Again, there is the best possible oral evidence to support the same conclusion, for the plaintiff's natural father stated on oath in the Court below that the plaintiff was six years old when adopted by Chandan Singh--a statement which would go to show that he was then in his seventh year. Mr. Hill has, indeed, argued that his statement must be accepted with caution because, according to the idiom of the people of this country, a Roy will be called six years old when he is in his sixth year, and has not yet entered in his seventh year. I am willing to allow this contention; but for the reasons already stated by me, I do not think it frees the plaintiff's case from the difficulty of age with reference to the question of adoption. For the contention urgad upon us with so much emphasis by the learned Pandit on behalf of the appellant is, that a Roy who has passed the fifth anniversary of his birth ceases, ipso facto, to be a fit subject of adoption among the ' twice-born' classes under the Benares school of Hindu law. And for this contention it is a matter of no significance whether the plaintiff was in his sixth or seventh year when he was adopted on the 22nd November 1866. Further, I may add that, in his own deposition, taken by the lower Court on the 20th November 1884, the plaintiff stated on oath that he was about 25 years of age, and went on to say: 'I was born in Sambat 1917, 1918, or 1916; but I do not know about it for certain. My anniversary takes place in summer season, but I do not recollect the month.' This statement is somewhat vague, and would not perhaps in itself deserve much weight, had it not been supported by all the proceedings relative to the certificate of guardianship which 1 have already described, and in which the plaintiff in his deposition admitted himself to have taken part. But the most favourable interpretation of the plaintiff's evidence would go to show that he was born in the summer of Sambat 1918, that is, about the middle of 1861 of the Christian era. And even this calculation would show that in the winter of 1866, that is, on the 22nd November of that year, the plaintiff had passed the fifth anniversary of his birth when he was adopted. That is all that the learned Pandit on behalf of the appellant has sought to establish, and I find that upon the evidence on the record he has fully succeeded in doing so. And in saying this 1 am indeed only upholding the finding of the Court below, which held that 'it is proved satisfactorily that at the time of adoption he (plaintiff) was certainly more than five years old.'
53. And having decided this I must proceed, as the learned Judge of the Court below had to do, to consider and decide the important and difficult question of Hindu law which stands as the last question in the plaintiff's case as stated by me, namely, whether under the Benares school of Hindu law, which admittedly governs this case, the adoption of the plaintiff Lekhraj on the 22nd November 1866, was null and void by force of the simple reason that he was then above five years of age.
54. The question so enunciated is one of considerable gravity, and is res integra, having never before been adjudicated upon by any authoritative ruling under the Benares school of law. Indeed, in the very able argument addressed to us by the learned Pandit on behalf of the appellant, as well as in the reply which Mr. Rill has with so much ability addressed to us on behalf of the respondent, the question has been treated as one of first impression. Nor have the learned Counsel on cite her side been able to cite any case which would help us in determining this grave question. Under these circumstances, the consideration of this point has been with me a matter of great anxiety; for I feel that the conclusions at which we arrive in this Court upon this point will affect one of the most solemn rights which the Hindu law confers upon childless Hindus, whose religious feelings have given rise to the institution of adoption itself. And I have considered it necessary to make this observation, in order to justify the elaborate manner in which I purpose to deal with this question.
55. The difficulties of the question now before us are considerably enhanced by the circumstance that, in connection with the proper age and period for adoption great divergencies prevail in the various sub-divisions of the Mitakshara school of Hindu law itself. And because in deciding the question it will be my duty to discuss the comparative authority of the various texts which have been cited in this case, I consider it necessary to express the general view which I entertain of the authoritative sources of Hindu law, the schools into which that system of jurisprudence is divided, the sub-divisions of each school, and I shall have to name some of the principal books of authority prevailing in each school, to which reference has to be made in dealing with this case.
56. It is a proposition of undoubted authority that the original fountain-head of the Hindu system of jurisprudence are the Vedas denominated as Sruti, or 'that which has been heard,' being supposed to be the ipsissima verba of the divine revelation. Next in order of authority come the Smritis, or 'that which is remembered,' being regarded as the expression of the divine will conveyed to mankind by inspiration through the agency of human beings. Both these propositions are supported by the ordinances of Manu, which lay down: 'No doubt, that man who shall follow the rules prescribed in the Sruti and in the Smriti will acquire fame in this life, and, in the next, inexpressible happiness By Sruti, or what was heard from above, is meant the Veda, and by Smriti, or what was remembered from the beginning, the body of law: those two must not be oppugned by heterodox arguments, since from those two proceeds the whole system of duties. Whatever man of the three highest classes, having addicted himself to heretical books, shall treat with contempt those two roots of law, he must be driven, as an atheist and a scorner of revelation, from the company of the virtuous.'--(Manu by Jones, Chap. II, Sections 9, 10 and 11).
57. The supreme authority of these two sources of Hindu law is therefore absolute and above question, though it may be added here that by an inflexible rule of Hindu jurisprudence, the Smritis are never taken to be in discord with the Vedas; and I may use the language of a Hindu lawyer himself in saying that, although the Vedas are held to be the ultimate sources of law, for all practical purposes the Smritis are treated as the sources of absolute authority upon all legal matters: 'The authors of Smritis are human beings, but in the opinion of the orthodox the Rishis knew the Vedas better than any man, in these degenerate days, can. Anyhow, the Smritis are now quite as authoritative as the Vedas in the estimation of orthodox Hindus.' (Siromani's Hindu Law, p. 14). Somewhere in the order of precedence, either between the Srutis and the Smritis, or more probably after them, come the Puranas, which the celebrated Colebrook states 'are reckoned as a supplement to the scripture, and as such, constitute a fifth Veda.' (Misc. Essays, vol. i, page 12). And this view is supported by a passage of the sage Yajnavalkya, which lays down that 'the Vedas, along with Puranas, the Nyaya, the Mimamsa, the Dharmasastras, and the Angas are the fourteen seats (sources) of knowledge and duty,' (Mandlik, p. 158). I mention this in respect of the authority of the Puranas, because one of these, the Kalika-purana, is the ultimate source of authority on which the learned Pandit on behalf of the appellant has relied in support of the whole of his contention upon the point now under consideration. Next in the rank of authority are the Vyakhyana or Tika, being glosses or commentaries upon the Smritis; and last of all come the Nivandhana, or, as Mr. Morley has described them, digests ' either of the whole body of the law or of particular portions thereof, collected from the text-books and their commentators.' (Morley, On the Administration of Justice in British India, p. 203).
58. Such then, according to my conceptions, are the sources of Hindu law and the comparative authority to which they are respectively entitled. And I may here add that by far the most authoritative of the Smritis is the Institute of Manu, and next in rank to him is the Institute of Yajnavalkya, for which we are indebted to the labours of Rao Sahib Vishvanath Narayan Mandlik, the distinguished Sanskrit and Hindu lawyer of Bombay, who has published an English translation of the work. Further, by far the most authoritative commentary on the Institutes of Yajnavalkya is the Mitakshara of Vijnanesvara, which in all legal matters possesses the highest authority throughout the whole of India with the exception of Lower Bengal. (Mayne, Hindu Law and Usage, Section 26).
59. I now proceed to state how the Hindu Law has divided itself into various schools and subdivisions. The Dharmasastra, or law in its ordinary sense, includes religious observances as well as rules of law which are based upon religious tenets. The Dharmasastras have in the end resulted in a divergence of schools on account of the fact that Hindu theology, law, and metaphysics are commingled with each other, and the tendencies of the method of reasoning which are held to be applicable to one are allowed to influence the interpretation of the other branches of knowledge. And we have the authority of Colebrook that there are various systems of analogical reasoning recognized in Hindu philosophy, theology and law. The most important of these systems are the Mimamsa and Nyaya, of which we have the following account:
The two Mimamsas (for there are two schools of metaphysics under this title) are emphatically orthodox. The prior one (Purva) which has Jaimini for its founder, teaches the art of reasoning with the express view of aiding the interpretation of the Vedas. The latter (Ultra) commonly called Vedanta and attributed to Vyasa, deduces from the text of the Indian Scriptures a refined psychology which goes to a denial of a material world. The Nyaya, of which Gotama is the acknowledged author, furnishes a philosophical arrangement, with strict rules of reasoning, not unaptly compared to the dialectics of the Aristotelian school.' (Misc. Essays, vol. 1, p. 227). That these systems of philosophical reasoning have led to the establishment of different schools of law, appears from another passage of the same author, to be found at page 316, vol. 1, of Sir Thomas Strange's celebrated work on Hindu law: 'The written law, whether it be Sruti or Smriti, direct revelation or tradition, is subject to the same rules of interpretation. These rules are collected in the Mimamsa, which is a disquisition on proof and authority of precepts. It is considered as a branch of philosophy, and is properly the logic of the law. In the eastern part of India, viz., Bengal and Behar, where the Vedas are less read, and the Mimamsa less studied than in the south, the dialectic philosophy or Nyaya is more consulted, and is there relied on for rules of reasoning and interpretation upon questions of law as well as upon metaphysical topics. Hence have arisen two principal sects or schools, which, construing the same text variously, deduce upon some important point of law different inferences from the same maxims of law. They are subdivided by further diversity of doctrine into several more schools or sects of jurisprudence which, having adopted for their chief guide a favourite author, have given currency to his doctrine in particular countries, or among distinct Hindu nations, for the whole Hindu people comprise divers tongues, and the manners and opinions prevalent among them differ not less than their language.' The result of this method of legal development has been the establishment of two main divisions of Hindu law, which can be most conveniently described as the Mitakshara school and the Dayabhaga school, the former being again subdivided into four minor divergencies of doctrine. One of the writers has suggested even a further subdivision, and the best way to indicate the various schools and their divisions, is to state them in a tabular form: Hindu Law.____________________________________________________________| |Mitakshara Dayabhaga.| (Bengal).____________________________________________| | | |Benares. Mithila. Maharashtra. Dravida.|_____________________________________| | |Dravida (proper), Karnatik. Andra.
60. This division and arrangement of the various schools has been mentioned by Mr. Morloy and has been generally accepted, with the exception of the subdivision of the Dravida school, which has incurred the criticism of Dr. Burnell, who 'agrees with Mr. Colebrook in thinking that the only distinction of real importance is between the followers of the Mitakshara and the followers of the Dayabhaga.' (Mayne, Section 33). At the same time it must be remembered, as Mr. Mayne has pointed out, that in the Bamnaad adoption case, in the Madras High Court, 2 Mad. H. O. Rep., 206, as well as the Privy Council, 12 Moo. L. A., 397, a distinction between the Benares and the Dravida schools was recognized, and a somewhat similar distinction has been made between the Andrn and the Dravida subdivisions in Narasammal v. Balaramacharki, I Mad, H. O. Rep., 420. Mr. Mayne (Section 35) then goes on to say that 'any one who compares the Dayabhaga with the Mitakshara will observe that the two works differ in the most vital points, and that they do so from the conscious application of completely different principles.' There is thus an accidental similarity between the divisions of the Hindu law and the manner in which the various schools of the Muhammadan law are arranged, the two main divisions being the Sunni and Shia schools, and the former, like the Mitakshara school, being subdivided into the four minor divergencies of Hanafi, Shafai, Maliki and Hanbali.
61. Such being the divisions and subdivisions of the schools of Hindu law, I think it will be convenient, before entering into the consideration of the various texts which have been cited, to deal with that portion of the argument addressed to us on behalf of the parties which relates to the application of the doctrine of factum valet to cases of Hindu adoption. For it was argued by the learned Counsellor the respondent, that even if the authorities relied upon by the learned Pandit on behalf of the appellant be taken to be conclusive as imposing the limitation of the age of five years upon the adoption of a boy, the irregularity or defect in the case of the plaintiff would be covered by the doctrine quod fieri non debuit factum valet. It seems to me, therefore, advisable to clear the case of the complication which this contention has introduced. In the case of Srimati Uma Devi v. Gokoolanund Das Mahapatra, L. R., 5 I. A., 40, to which reference has already once been made, and which was governed by the Benares school of Hindu law, the Lords of the Privy Council made the following observations: 'It was urged at the bar that the maxim quod fieri non debuit factum valet, though adopted by the Bengal school, is not recognized by other schools, notably by that of Benares. That it is not recognized by those schools in the same degree as in Bengal is undoubtedly true. But that it receives no application except in Lower Bengal, is a proposition which is contradicted not only by the passage already cited from Sir William Macnaghten's work, but by decided eases. The High Court of Madras in Chinna Gaundun v. Kumara Gaundun, 1 Mad., H. C. Rep., 54, and the High Court of Bombay in Baje Vyankatrav Anandrav Nimbalkar v. Jayavantrav bin M. Ranadive, 4 Bom., H. C. Rep., (A. C.) 191, acted upon it, and did so in reference to the adoption of an only son of his natural father on which the High Court of Calcutta in Rajah Opendur Lall Roy v. Banee Bromo Moyee, 10 W. R., 347, has refused to give effect to it, considering that particular prohibition to be imperative.' To the cases cited by their Lordships may be added Hanuman Tiwari v. Chirai I. L. R., 2 All., 164, where the majority of a Full Bench of this Court applied the doctrine to the adoption of an only son,, relying in some measure on V. Smgamma v. Vinjamuri Venkatacharlu, 4 Mad., H. C. Rep., 164, which, however, only went the length of saying that the omission to perform the ceremony of Datta Homam would not vitiate an adoption which had actually taken place. But the rule has perhaps never been carried to a greater extent than in the recent case of Dharma Dagu v. Ramkrishna Chinnaji, I.L.R., 10 Bom., 80, in which a Division Bench of the Bombay High Court held that even the adoption of a married asagotra Brahman, in violation of the ordinary rule that adoption should take place before the upanayana, would be covered by the doctrine of factum valet. On the other hand, in the case of Lakshmappa v. Ramava, 12 Bom., H. C. Rep., 364, it was held by the Bombay Court that a gift by a Hindu widow of her deceased husband's only son is invalid in the absence of an express authority conferred upon her by him during his life-time, and that such an adoption, being null and void ab initio, cannot be supported by the maxim quod fieri non debuit factum valet. And upon the same principle, the same Court in Gopala Narhar Safray v. Hanmant Ganesh Safray I. L. R., 3 Bom., 273, declined to apply the doctrine to the adoption of a daughter's or sister's son.
62. Again, there is a learned note at p. 909 of Mr. Justice West's celebrated work on Hindu law, which I wish to quote here before proceeding any further.
63. 'Jagannatha, followed by Strange and Macnaghten, brings the principle of factum valet to bear upon the prohibition to adopt an only (or an eldest) son. (See Coleb. Dig. Bk. V. T. 273, Comm.). The adoption, he says, is valid, however improper. The Mitakshara does not recognize this distinction. It ranks the unfit with the void gift (see 2 Str. H. L., 423) and it pronounces against the adoption without reserve (Mit. Chap. 1, Section XI, paras. 11, 12). Jagannatha himself points out that according to the Mithila law the gift of an only son is illegal, even though he consent to the donation (Coleb. Dig. Bk. V. T. 275, Comm; 1 Str. H. L., 87; 1 Macn. H. L., 67).' And as an illustration the learned author cites the case of Somasekhara Baja v. Subhadramaji I. L. R., 6 Bom., 524, where an adoption was held to be invalid on the ground, inter alia, that the mother had no authority to give the Roy in adoption, because he was the only son of her deceased husband at the time of adoption. Another ' authority on Hindu law--Mr. Mayne--has the following:
It is usual to speak of the doctrine of factum valet as one of universal application in the Bengal school. But this is a mistake. When it suits Jimuta Vahana, he uses it as a means of getting over a distinct prohibition against alienation by a father without the permission of his sons (Dayabhaga ii Section 30.) I am not aware of his applying the doctrine in any other case. No Bengal lawyer would admit of any such subterfuge as sanctioning, for instance, the right of any undivided brother to dispose of more than his own share in the family property for his private benefit, or as authorising a widow to adopt without her husband's consent, or a 'boy to be adopted after upanayana or marriage. The principle is only applied where a legal precept has been already reduced by independent reasoning to a moral suggestion.' (Section 35.)
64. I have referred to these various authorities in illustration of the manner in which the doctrine of factum valet has been dealt with in connection with adoption under the various schools of Hindu law, and I think I may add that it would not be easy to reconcile the various rulings in matters of detail. But the exigencies of this case do not necessitate the consideration of the question whether, in all the eases which I have cited, the doctrine was properly applied by the Indian Courts. It seems to me enough to say that the authorities which I have quoted place the proposition beyond doubt, that not only in the Dayabhaga school which prevails in Lower Bengal, but also in the various subdivisions of the Mitakshara school, the doctrine of factum valet has been held to be applicable. Limitations upon the scope of that doctrine have been sought in the provisions of books of authority in the various schools of Hindu law, and it has been said that whilst the Dayabhaga school countenances the doctrine, the Mitakshara school repudiates it altogether.
65. I am of opinion that the application of the doctrine by the Courts of justice in British India need not depend for its authority upon any rule of Hindu law any more than upon any rule of Muhammadan law. The maxim, which owes its origin to Roman jurisprudence, rests upon those principles of justice, equity and good conscience, which we are bound to administer even in dealing with questions of this nature, whenever the substantive rules of the native law furnish no clear and unmistakeable guide. It has been said and, as Mr. Mayne has pointed out, said erroneously, that the Dayabhaga in saying that a fact cannot be altered by a hundred texts' (Section 30, chap. II), countenances an unlimited application of the doctrine of factum valet, and the authority of Sir Thomas Strange is invoked to show that the maxim of civil law prevails in no code more than in that of the Hindus (vol. II, p. 87). Be this as it may, there is no authority whatsoever to show that the maxim is to be applied to oases of Hindu law in a manner which would exceed the limits of the maxim as recognized in the civil law itself, 'although warm advocates of that maxim,' to use the words of WESTROPP, C. J., 'seem to have laid it down somewhat wildly, and as if it were applicable in every case in which the regular form of adoption had been gone through.'
66. Holding these views, it is unnecessary for me either to discuss the exact meaning of the sentence in the Dayabhaga which I have quoted, or to search the texts of the Mitakshara school for authority regarding the application of the principle upon which the doctrine of factum valet proceeds. For I am content with the maxim as it is understood in the civil law, and I am willing to apply it to cases of Hindu adoption, in the manner in which the maxim itself should be properly understood. And in connexion with this matter, no one has explained the doctrine better than that eminent Judge, Sir Michael Westropp, in Lakshmappa v. Bamava, 12 Bom. H. C. Rep., 364, where, speaking of the doctrine, he said,--' To us it appears that its application must be limited to cases in which there is neither want of authority to give or accept, nor imperative interdiction of adoption. In cases in which the Shastra is merely directory, or only points out particular persons as more eligible for adoption than others, the maxim may be usefully and properly applied, if the precept or recommended preference be disregarded.' The same is the effect of what was said by the same distinguished Judge in Gopal Narhar Safray y. Hanmant Ganesh Safray I. L. R., 3 Bom., 273, where he pointed out that the ruling of the Privy Council in Srimati Uma Devi v. Gokoolanund Das Mahapatra, L. R., 5 I. A., 40, did not go any further.
67. It appears to me that in all systems where juristic notions have at all been carefully classified, a distinction exists between rules which regulate matters of form and as such are directory in their nature, and those rules which go to the very essence of the matter, and violations of which, if allowed, would be destructive of the rule itself, The distinction is analogous to that which exists between adjective law and substantive law, between matters which go to the remedy, ad litis ordination, and those ad litis decisionem. I make this comparison only by analogy, for it helps me to explain my opinion in regard to the exact scope and application of the doctrine of factum valet in connection with this case. And I think the matter was never put better than by Westropp, C.J., in the two cases already referred to, when he said that, in the maxim quod fieri non debuit factum valet, on the one hand, 'factum' must not be understood to mean a transaction which is a mere nullity; nor, on the other hand, should 'debuit' be read as if it were 'potuit.' And this statement indeed indicates the whole scope of the doctrine, and the limitations to which its application is subject. Now, in the case of adoption there are of course questions of formalities, ceremonies, preference in the matter of selection, and other points, which amount to moral and religious suggestions. Such matters, speaking generally, are dealt with in the texts in a directory manner, relating to what I may perhaps call the modus operandi of adoption. To such matters, which do not affect the essence of the adoption, the doctrine of factum valet would undoubtedly apply upon general grounds of justice, equity and good conscience, and irrespective of the authority of any text in the Hindu law itself. There may, indeed, be cases where the express letter of the texts renders that which would in other systems be regarded as a matter of form, a matter of imperative mandate or prohibition affecting the very essence of the transaction. An analogical illustration of this is to be found in the rules of the English law as to the attestation of a will by two witnesses as essential to its validity; and in our own statute law we have Section 54 of the Transfer of Property Act, which renders a registered instrument essential to the validity of the sale of immoveable property exceeding a certain amount in value. So also there may, of course, be definite texts of the Hindu law of adoption itself which, though relating to matters of form, would be sufficiently imperative to vitiate an adoption in which they have been disregarded. But unless such texts are express and undoubted in their meaning, I would apply the doctrine of factum valet to adoptions which, having been made in substantial conformity to the law, have infringed only minor matters of form or selection. Having so far explained how I understand the general scope of the doctrine of factum valet, I proceed to define upon what points of Hindu adoption I would hold it to be inapplicable. Adoption under the Hindu law being in the nature of gift, three main matters constitute its elements, apart from questions of form. The capacity to give, the capacity to take, and the capacity to be the subject of adoption, seem to me to be matters essential to the validity of the transaction, and, as such, beyond the province of the doctrine of factum t valet. And I may at once say that if any of these three capacities is wanting in this case, I shall hold the plaintiff's adoption to be altogether invalid.
68. This brings me to the consideration of the most important point in what I have called the plaintiff's branch of the case, namely, whether the fact of the plaintiff's age being above five years at the time of his adoption was open to the objection of any of the three incapacities to which I have just referred. Amid the conflict of authorities with which I shall presently have to deal, it seems to me supremely important to explain briefly the exact origin, reasons, and nature of adoption under the Hindu law, for it is with reference to these that the point now under consideration must ultimately be decided. That the Hindu law itself recognizes this method of dealing with such questions is apparent from the text of Manu (Chap. XII, Section 106). 'He alone comprehends the system of duties, religious and civil, who can reason by rules of logic agreeable to the Veda, on the general heads of that system as revealed by the holy sages.' And a further confirmation of this mode of deciding doubtful questions is to be found in the same Smriti:' If it be asked how the law shall be ascertained, when particular cases are not comprised under any of the general rules, the answer is this: 'That which well-instructed Brahmans propound shall be held incontestable law,'' (Chap. XII, Section 108). I regard these passages as justifying the Courts of justice in British India in seeking in the approved authorities of the Hindu law itself reasons for hard-and-fast rules which, having the appearance of being arbitrary, have been left by those authorities themselves in a doubtful condition.
69. Mr. Hill, on behalf of the respondent, made an endeavour to deduce analogical arguments in favour of his client, by drawing a comparison between the Hindu law of adoption and the arrogatio and adoptio of the Roman Civil Law, with reference to the question of age, and he contended that there was nothing unreasonable in imposing no limit of age upon the subject of adoption. The comparison is no doubt interesting, and there is a great deal of valuable information upon the subject in Colquhoun's celebrated work on Roman Civil Law, (Sections 625-683-708), as also in Mr. Hunter's Roman Law, where he deals with the subject of patria potestas. But I think that it would be unsafe in dealing with this case to draw even analogical inferences from a system which, though remotely connected with the Hindu law by the ethnological affinity of a common Aryan descent, has been developed in a country and among a people far removed from India and the followers of Brahmanism. And in saying this I am only obeying the dictum of the Lords of the Privy Council in The Collector of Masulipatam v. Cavaly Vencata Narrainapah, 8 Moo. I.A., 529, where their Lordships pointed out that great confusion arises from applying analogies derived from foreign systems to the doctrines of the Hindu law, and that such analogies are 'more likely to mislead than to direct the judgment aright.'
70. To the same effect are the observations made by their Lordships in Bhyah Ram Singh v. Bhyah Ugur Singh, 13 Moo. I. A., 373, at p. 390, where their Lordships said: 'The Hindu law contains in itself the principles of its own exposition. The digest subordinates in more than one place the language of texts to custom and approved usage. Nothing from any foreign source should be introduced into it, nor should the Courts interpret the text by the application to the language of strained analogies.' I am all the more unwilling to resort to the Roman Civil Law for assistance in this case, because I am not satisfied that either the arrogatio or the adoptio of that system was an institution of a sacramental nature in the sense in which I take an adoption to be in Hindu jurisprudence. To that system alone I shall therefore confine ray attention, but as I shall frequently have to resort to the; sacred, text of Manu, I may here cite the dictum of their Lordships of the Privy Council in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, 14 Moo. I. A., 570, that 'many of the precepts of Manu have undoubtedly been altered and modified by modern law and usage; but his authority may properly be referred to when it is necessary to resort to first principles in order to ascertain and declare the law.'
71. Under the Hindu system the beatitude of a deceased Hindu in future life depends upon the 'performance of his obsequies and payment of his debts by a son as the means of redeeming him from an instant state of suffering after death. The dread is of a place called put, a place of horror to which the manes of the childless are supposed to be doomed; there to be tormented with hunger and thirst for want of those oblations of food and libations of water, at prescribed, periods, which it is the pious and indeed indispensable duty of a son (putra) to offer.' (Strange's Hindu Law, Vol. 1., p. 73). And this proposition is supported inter alia, by the authority of Manu: 'By a son a man obtains victory over all pepole; by a sod's son he enjoys immortality; and afterwards by a son of that grandson he reaches the solar abode. Since the son (trayate) delivers his father from the hell named put, he was therefore called putra by Brahma himself.' (Chap. IX, Sections 137, 138). It was, no doubt, on account of this doctrine that the earliest texts of the Hindu law enumerate no less than twelve kinds of sons (Manu, Chap. IX, Sections 158, 160), and Dr. Jolly cites some authorities to show that the number has been increased to fifteen classes--(Tagore Law Lectures, 1883, p. 145). And the same learned author, after enumerating the various classes of sons whose filial relation arises from natural descent, real or assumed goes on to say: 'All the other sorts of sons owe their being styled as such to a legal fiction which is either adoption itself or at least closely allied to that ancient contrivance for supplying the want of natural heirs and satisfying the craving of primitive times for male descendants.' We have, then, the authority of Mr. Mayne (Section 94) that the whole law of adoption has been evolved from two texts and a metaphor. One of the two texts is from Manu (Chap. IX, Section 168): 'He whom his father or mother, with her husband's consent, gives to another as his son, provided that the donee has no issue, if the Roy be of the same class and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water.' The other text is from Vasishta (3 Dig., 242) which is fuller than the preceding one: 'A son formed of seminal fluids and of blood proceeds from his father and mother as an effect from its cause. Both parents have power to sell or to desert him. But let no man give or accept an only son, since he must remain to raise up a progeny for the obsequies of ancestors. Nor let a woman give or accept a son, unless with the assent of her lord. He who means to adopt a son must assemble his kinsmen, give humble notice to the King, and then, having made an oblation to fire with the words of the Veda, in the midst of his dwelling house, he may receive as his son by adoption a Roy nearly allied to him or (on failure of such) even one remotely allied. But if doubt arise, let him treat the remote kinsman as a Sudra. The class ought to be known, for through one son the adopter rescues many ancestors.' Then the metaphor to which Mr. Mayne has referred is to be found in the Caunaka Smriti and referred to in the Dattaka Mimamsa (Section 5, p. 15) to the effect that the Roy to be adopted must be 'the reflexion of a son,' or, as Dr. Buhler has translated the original: ' He then should .adorn the child, which (now) resembles a son of the receiver's body;' that is, which has come to resemble a son by the previous ceremony of giving and receiving--(Journal, As. Soc. Bengal, 1866, Article Caunaka, Smriti).
72. Both these texts and the metaphor refer to the Dattaka form of adoption, 'which is admittedly the one under which the plaintiff's adoption was made; and I may add here in passing, that no question is raised in this case as to; the exact nature of the ceremonies requisite to establish the adoption. Dr. Jolly (p. 157) maintains that 'the Dattaka form consists of the solemn adoption of a boy, who has been voluntarily consigned by his natural to his adoptive parents. The ceremonies to be performed on this occasion are described in the Vasishta Smriti (XV, i, ii), in Caunaka's Putrasangrahavidhi and in a Parcishta in the sutra style, to Baudhayana's Grihyasutra. The texts of Caunaka and Baudhayana have been published and translated by Dr. Buhler.' And Mr. Mayne (Section 93) has stated that among the formalities according to the last mentioned authority the adopter receives the child with the words: 'I take thee for the fulfilment of religious duties. I take thee to continue the lines of my ancestors: ' and Sir THOMAS STRANGE (vol. i, p. 95) in summing up the essentials of the ceremonials of adoption, goes on to say: 'there must be gift and acceptance manifested by some overt act. Beyond this, legally speaking, it does not appear that anything is absolutely necessary.' Then, as to the effect of adoption, the same eminent authority (vol. i, p. 97) states the law to be that--'adoption being a substitution for a son begotten, its effect is, by transferring the adopted from his own family, to constitute him son to the adopter, with a consequent exchange of rights and duties. Of these the principal are the right of succession to the adopter on the one hand, with the correlative duty of performing for him his last obsequies, on the other. The right attaches to the entire property of the adopter, real and personal; and in the form under consideration (the Dattaka) it operates lineally and collaterally.' Among the authorities upon which the learned author relies is the dictum of Jagannatha (3 Dig., 149, 150): 'When he who has procreated a son, gives him to another, and the child so given is born again by the rites of initiation, then his relation to the giver ceases, and a relation to the adopter commences.'
73. Now, from the authorities which I have thus enumerated, I deduce the following conclusions:
First.--That the existence of male issue being favoured by the Hindu law mainly for the purpose of the parents' beatitude in the future life, adoption is a sacrament justified by a fiction of law under conditions when the natural male offspring is wanting.
Secondly.--That a substantial adherence to ceremonials, but principally the act of giving and taking, is sufficient to establish the adoption.
Thirdly.--That when such adoption has duly taken place, its effect is the affiliation of the boy, as if by a feigned parturition he had been begotten by his adoptive father, thus removing the Roy from the family of his natural to that of his adoptive parents.
Fourthly.--That the Roy so adopted (to use the words of Jagannatha) ' is born again by the rites of initiation, and his relation to the giver ceases, and a relation to the adopter commences'--vide Manu Chap. IX, Section 142; Dattaka Mimamsa, Section 6, p 8; Dattaka Chandrika, Section 2, p. 19).
74. The question, then, with regard to these four main conclusions, is, adoption being a second birth, at what period may such second birth take place, that is, with reference to the age of the boy, or with reference to the initiatory ceremonies enjoined by the Hindu law in the case of the three ' twice-born' classes
75. In order to render my conclusions upon this question intelligible, it is necessary for me, as briefly as I can, to refer to the origin of the four castes under the Hindu system. And upon this subject much information is contained in Muir's Sanskrit Text (vol. i.) from which I extract only so much as is based directly upon Manu's Institutes, and is necessary for the purpose of explaining my views in this case. Referring to the Creator, Manu says: 'That the human race might be multiplied, he caused the Brahman, the Cshatriya, the Vaisya and the Sudra (so named from the scripture-- protection, wealth and labour) to proceed from his mouth, his arm, his thigh and his foot,' (Chap, i., v. 31). 'For the sake of preserving this universe, the Being, supremely glorious, allotted separate duties to those who sprang respectively from his mouth, his arm, his thigh and his foot. To Brahmans he assigned the duties of reading the Veda, of teaching, of sacrificing, of assisting others to sacrifice, of giving alms if they be rich, and, if indigent, of receiving gifts. To defend the people, to give alms, to sacrifice, to read the Veda, to shun the allurements of sensual gratification, are, in a few words, the duties of a Cshatriya. To keep herds of cattle, to bestow largesses, to sacrifice, to read the Scripture, to carry on trade, to lend at interest and to cultivate land, are prescribed or permitted to a Vaisya. One principal duty the Supreme Euler assigns to a Sudra, namely, to serve the before-mentioned classes, without depreciating their work.' (Manu, Chap. 1, vv. 87-91).
76. Having so far described the origin of the four classes of mankind and the duties assigned to each of them, Manu devotes a whole chapter to the subject of education. As preparatory to this it seems that certain ceremonies (vide Colebrooke's note cited under para. 23, Section iv. of the Dattaka Mimamsa) are necessary for the purposes of purification. 'By oblations to fire during the mother's pregnancy, by holy rites on the birth of the child, by the tonsure of his head with a lock of hair left on it, by the ligation of the sacrificial cord, are the seminal and uterine taints of the three classes wholly removed.' (Chap. II, v. 27). A fuller account of these rites and ceremonies then follows, and ends with the following declaration: 'Such is the revealed law of institution for the twice-born, an institution in which their second birth clearly consists, and which causes their advancement in holiness.' (Chap. II, v. 68.) The sacred author then, after giving a further detail, goes on to draw a distinction between natural birth, and the second or divine birth: 'Of him who gives natural birth, and him who gives the knowledge of the whole Veda the giver, of the sacred knowledge is the more venerable father; since the second or divine birth ensures life to the twice-born in this world and hereafter eternally. Let a man consider that as a mere human birth which his parents gave him for their mutual gratification, and which he receives after lying in the womb; but that birth which his principal Acharya, who knows the whole Veda, procures for him by his divine mother the Gayatri, is a true birth: that birth is exempt from age and from death.' (Chap. II, vv. 146-148). A fuller account of the significance of the 'second birth' is contained in the following verses: 'The first birth is from the natural mother, the second from the ligation of the zone, the third from the due performance of the sacrifice. Such are the births of him who is usually called twice-born, according to a text of the Veda. Among them his divine birth is that which is distinguished by the ligation of the zone and sacrificial cord; and in that birth the Gayatri is his mother, and the Acharya, his father: sages call the Acharga, father, from his giving instruction in the Veda; nor can any holy rice be performed by a young man before his investiture. Till he be invested with the signs of his class, he must' not pronounce any sacred text, except what ought to be used in obsequies to an ancestor, since he is on a level with a Sudra before his new birth from the revealed Scripture.' (Chap. II, vv. 169, 172). Then the following verse shows the distinction between the three twice-born classes and the Sudra or servile class. 'The three twice-born classes are the sacerdotal, the military and the commercial; but the fourth or servile is once-born, that is, has no second birth from the Gayatri, and wears no thread, nor is there a fifth pure class.' (Chap. X, 4).
77. From these texts of undoubted authority, I conclude that what is called the 'second birth' in the case of the three 'twice-born classes' is represented by the solemn rite of the investiture of the sacred thread hallowed by the Gayatri as the insignia of such second birth; that, till then, a boy, though born of twice-born parents, remains on the same level- as a Sudra; and that regeneration is held to be complete when the ceremony has been duly performed. Further, that ceremony represents the beginning of the boy's education in the duties of his class. The ceremony which in Sanskrit is called upanayana has thus a very significant place, and represents the turning-point of the regeneration. The ceremony of tonsure which precedes the upanayana is also significant; and the following verses of Manu describe the ages at which these ceremonies should be performed: 'By the command of the Veda, the ceremony of tonsure should be legally performed by the three first classes in the first or third year after birth. In the eighth year from the conception of a Brahman, in the eleventh year from that of a Kshatriya, and in the twelfth year from that of Vaisya, let the father invest the child with the mark of his class. Should a Brahman or his father for him, be desirous of his advancement in sacred knowledge, a Kshatriya of extending his power, or a Vaisya of engaging in mercantile business, the investiture may be made in the fifth, sixth, or eighth years respectively. The ceremony of investiture hallowed by the Gayatri must not be delayed in the case of a priest beyond the sixteenth year; nor in that of a soldier beyond the twenty-second; nor in that of a merchant beyond the twenty-fourth. After that, all youths of these three classes, who have not been invested at the proper time, become Vratyas or out-casts, degraded from the Gayatri and condemned by the virtuous. '(Chap. II, vv. 35, 39). The exact bearing which these ceremonies have upon the subject of adoption is best explained in the words of Sir Thomas Strange (Vol. 1, pp. 88-89):
Not only are the Hindus impressed with the certainty of a future state (upon a conviction and dread of which the practice of adoption is founded), but they also consider sin to be so inherent in our nature as to require distinct and specific means of expiation. Hence the institution of a series of initiatory ceremonies, commencing previous to conception, and producing, all together, in the superior classes, regeneration. It is by the preformance of these in the family and name of the adopting father, that filiation is considered to be effectually accomplished. Accordingly, the fewer of them that have been performed in the family of the adopted, previous to adoption, the better; and that adoption, therefore, is in this respect perferable which takes place the soonest after the birth of the child to be adopted. These are tonsure, or the shaving of the head (chudakarna), and (upanayana), the investiture of the cord. The affiliation of one 'whose coronal locks have not been reduced to the form of his patriarchal tribe' is constantly inculcated. The age for this operation is the second or third year after the birth; but it may be extended to the eighth, which, with Brahmans, is the general period for the investiture; excepting, for such as are destined for the priesthood, upon whom it is performed at five. The stipulation therefore of five, as the extreme age for adoption, may have reference to Brahmans of this description.
78. The learned author then goes on to say that, considering that the upanayana is the appointed season for the commencement of a boy's education, the most reasonable conclusion seems to be that that ceremony should be the turning-point of the period of adoption: And he adds: 'With regard to, the other two regenerated classes (the Kshatriya and Vaisya) the time for the performance of them varies: while, with reference to the Sudra, the doctrine has no application, for him as for women generally, there existing no ceremony but that of marriage.
79. The learned Pandit who has appeared for the appellant, however, argues that in the Benares school of law, by which this case is governed, the upanayana ceremony does not represent the extreme limit of the period of adoption, but that by a rigid and inflexible rule, a boy, however nearly related to the adopter, ceases to be a fit subject of adoption, not only in the case of Brahmans, but also in the case of the other two regenerate classes. For this proposition the learned Pandit has referred us to various authorities which must now be considered. Foremost among them is a text of the Kalika-purana, which has been quoted with approval by Nanda Pandita in his Dattaka Mimamsa (Section iv., p. 22): 'Another special rule is propounded in the Kalika-purana--'Sons given, and the rest though sprung from the seed of another, yet being duly initiated under his own family name, become sons. O Lord of the earth, a son having been initiated under the family name of his father, unto the ceremony of tonsure inclusive, does not become the son of another man (anyatas). The ceremony of tonsure and other rites (chudadya) of initiation being indeed performed, under his own family name, sons given and the rest may be considered as issue: else they are termed slaves. After their fifth year, 0 King, sons given and the rest are not sons. (But) having taken a Roy five years old, the adopter should perform the sacrifice for male issue. ' In order to fortify his argument the learned Pandit has produced a copy of the original Sanskrit Dattaka Mimamsa published at Benares by Pandit Dhundiraj, a lineal descendant of Nanda Pandita himself, (Jolly's Tagore Law Lectures, 1883, p. 15), and it is useful for clearing up certain doubtful expressions in the English of Mr. Sutherland's translation, especially as the same passage of the Kalika-purana has been differently translated at p. 329 of vol. ii, Colebrooke's Digest. There the translation is: 'But after the fifth year, O king sons given and the rest must not be adopted; let the adopter take a Roy five years old, and first perform the sacrifice for male offspring.' The passage of the Kalika-purana has also been quoted in the original Sanskrit in Siromani's Hindu Law (p. 129) and is the same as quoted in the original Dattaka Mimamsa. The most important point evolved by comparison with the original is, that Mr. Sutherland's translation 'are not sons' is correct, and that the expression 'must not be adopted' used in Colebrooke's Digest is not correct. The original expression is 'urdwhantu panchamadvarshatna dattadyah suta nirpa,' which clearly shows that the interdiction is not directory, addressed to the adopter, but a rule incapacitating a Roy above five years of age from being the subject of a valid adoption. This interpretation is supported by the conclusion of Shama Charan Sircar in his Vyavastha Chandrika (Vol. ii, p. 87, Section 290) and by the manner in which the passage has been rendered by Mr. Mandlik in (p. 50) his translation of the Mayukha (IV, Section 20). Taking this passage of the Kalika-purana, the learned Pandit has further relied upon paras. 41, 42, 43, 44, 45, 46, 51 and 52 of the Dattaka Mimamsa. Of these the most important are paragraphs 41, 42 and 43, which may be quoted here:
Since the filial state is produced from ceremonies, in the same manner as the being a sacrificial post and so forth, it is established that one uninitiated is to be adopted. A limited period for adoption being necessary, the author adds, 'after their fifth year, etc' One though uninitiated is not to be adopted after the fifth year; for, the time having gone by, he cannot becomes a son. By this it is declared that the five (first) years only are the season for adoption. Now the propounding this position negatively is for the purpose of showing that an age beyond five years is not even a secondary season; for otherwise by the rule ('every season ulterior to the appropriate season is pronounced secondary') it would follow that any time beyond the fifth year were secondary.
80. The effect of these and the following few paragraphs of the Dattaka Mimamsa has been well summarized in Siromani's Hindu Law, p. 130, to be the following:
(i) The relationship of father and son is created by the due performance of the initiatory ceremonies.
(ii) A Roy for whom none of the initiatory ceremonies have been performed by his natural father is most eligible for adoption.
(iii) A Roy for whom the initiatory ceremonies prescribed before chudra have been performed, but whose chudra has not been performed, maybe taken in adoption, though one whose initiatory ceremonies have not been performed is preferable.
(iv) A Roy whose chudra has been performed by his natural father, but whose age does not exceed five years, may be taken in adoption, but he would be a Dwyamushyayana, or son of two fathers.
(v) A Roy whose age exceeds five years cannot be adopted at all.
81. These conclusions are in accord with those arrived at by Mr. Mayne in Section 123 of his work, and he adds that' if no other is procurable, a Roy on whom tonsure has been performed may be received. In that case, however, the previous rites must be annulled by the performance of the putreshti, or sacrifice for male issue. As regards other rites, those previous to tonsure are immaterial, the performance of the upanayana is an absolute bar.'
82. I have cited these passages because they represent the whole line of argument addressed to us by the learned Pandit on behalf of the appellant. He has also relied upon a note by Mr. Colebrooke to p. 13, chapter 1, Section ix of the Mitakshara, and the note leaves no doubt that, according to Mr. Colebrooke, the followers of Raghunandana, referring to the Kalika-purana, 'construe the passage as an unqualified prohibition of the adoption of a youth or child whose age exceeds five years, and especially one whose initiation is advanced beyond the ceremony of tonsure.' The same is the effect of a note to be found at page 329, vol. ii. of Colebrooke's Digest, and of another at page 222 of vol. ii of Strange's Hindu Law; and the same interpretation has been accepted by Mr. Macnaghten (p. 72), and Dr. Jolly (p. 161), and indeed by other authorities also. And I think it may be conceded at once that according to the passage of the Kalika-purana as intrepreted in the Dattaka Mimamsa, five years is the extreme limit of age for adoption; that a Roy exceeding that age is incapacitated from being a proper subject of adoption; that such incapacity amounts to a sufficiently imperative prohibition to place it beyond the application of the doctrine of factum valet, as explained by me. Whether the rule of Dattaka Mimamsa is intended to apply only to special cases where early intiation is necessary, is another matter which I shall presently consider; but there can be no doubt that if the rule is rigidly applied to this case, the plaintiff's adoption must beheld to be null and void. This, indeed, is the whole scope of the learned Pandit's contention on behalf of the appellant, for whilst on the one hand no question as to the performance either of the ceremony of tonsure (chudakama) or of that of the sacred thread (upanayana) has been raised in this case, on the other hand, it has not been contended that either the incapacity to give in the natural father, or the incapacity to take on the part of the adoptive father, existed in connection with the plaintiff's adoption. Indeed, it is shown by the evidence of Narain Singh, the natural father of the plaintiff, and has been assumed throughout the argument, that the plaintiff was a younger son, and that both the chudakarna and the upanayana of the plaintiff were performed in the family of his adoptive father. The-question of the proper age for adoption is therefore the only point which needs determination.
83. But before proceeding any further I must notice a sentence in Mr. Sutherland's Synopsis, Note XI, on which the learned Counsel for the respondent relied for showing that the effect of the Dattaka Mimamsa itself is inconsistent and doubtful. Mr. Sutherland says: 'It is to be observed that Nanda Pandita in the abstruse gloss noticed, seems to have betrayed himself into an inconsistency. According to his explanation, if the Roy proposed to be adopted has not been initiated in the rite of tonsure by his natural father he cannot be adopted after having attained his fifth year; if, however, be has been so initiated, he may be affiliated (provided he be under six years of age), a sacrifice and so forth being observed as already noticed.' Mr. Sutherland is the original translator of Nanda Pandita's Dattaka Mimamsa, and any observation from him is undoubtedly entitled to respect. Bat there can be very little doubt that the criticism which I have just quoted proceeds upon a misconception of Nanda Pandita's meaning. The question of age begins at paragraph 22, Section iv of the Dattaka Mimamsa, and in that paragraph the passage from the Kalika-purana is quoted. What follows in the succeeding paragraphs up to paragraph 56 is simply a commentary explaining the various points of the text of the Kalika-purana. In paragraph 81 the consideration of the words of the Kalika-purana: 'having talon a child of five years,', is referred to, but postponed for a later paragraph. Paragraphs 42 and 43 leave no doubt that, for the untonsured, five years is the extreme limit of age. In paragraph 44 it is explained that the expression 'tonsure' must be understood to signify the third year of age, in order to avoid the inconsistency of meaning which would result if more than five years were allowed for the adoption of the tonsured. Then comes paragraph 48, which explains that in case of an uninitiated Roy being unprocurable, one who has been tonsured may be taken, so long as he is 'five years old; 'and the subject is reverted to and more fully explained in paragraph 53 which has been rendered by Mr. Sutherland in the following words:
If this is the case, then the passage should only recite: 'Having taken one initiated (unto tonsure inclusive).' What occasion is there to use the expression 'a Roy five years old'? Should this be objected, it is erroneous; for the passage intends this restriction--'a Roy five years old only' (i.e., under six); and the restriction is for the sake of securing an investiture of the characteristic thread conducive to that holiness resulting from the study of scripture, which is preceded by the previous acquisition of letters.
84. Now it is clear that Mr. Sutherland's criticism as to the inconsistency of Nanda Pandita is based upon paragraphs 48 and 53, in both of which the expression 'five years old' occurs, and which in the latter paragraph the learned translator had interpreted as meaning one who has already attained five years, but is below six years of age. This appears from the wordsbetween brackets employed by the learned translator. The original expression in Sanskrit which has been rendered 'five years old,' is panchvarshiya, whilst the words 'under six' which occur between brackets in Mr. Sutherland's translation of paragraph 53, are an interpolation of the translator, as a comparison with the original Sanskrit text shows. Now the word panchvarshiya has been explained in Professor Monier Williams' Dictionary (p. 523, col. 3) as meaning 'five years old:' but I do not think this expression is to be understood in the manner in which human ago is spoken of among the English people. The words 'five years old' would probably mean one who has passed the fifth anniversary of his birth. Such, however, is not the idiom of the Indian people, for they speak of a boy being five years old, when he is only in his fifth year. And I think that it is in this manner that the expression panchvarshiya must be interpreted. The word itself is a compound consisting of panch, which means five, varsh, which means year, and the termination iyah is an adjectival affix indicating the relation which 'five years' has to the person in respect of whom the whole word is employed. And I hold that the word does not indicate that such person has attained the age of five years. This interpretation seems to me to be clear from the text of the Dattaka Mimamsa itself, because throughout it speaks of five years as the ultimate limit of age for adoption, and paragraphs 48 and 53 are devoted to explaining that the rule is not to be infringed in the case of an untonsured boy, any more than in the case of one who has already been tonsured--tonsure as explained in paragraph 44 being taken to refer to the third year of ago. There is thus no such inconsistency in Nanda Pandita's reasoning as Mr. Sutherland conceives, an inconsistency which no other authority has recognized, and which owes its origin to Mr, Sutherland's own misinterpretation of paragraphs 48 and 53 of the Dattaka Mimamsa. The effect of Nanda Pandita's meaning as already shown by me, by quoting from a Hindu Sanskrit lawyer Mr. Siromani, and from Mr. Mayne, is that tonsure incapacitates a Roy for being a subject of adoption in the Dattaka form, but that he may ho adopted in the Dwyamushyayana form even after the tonsure, so long as ho has not attained the age of five years, which is the ultimate limit. (Siromani, p. 130; Mayne, Section 123; Jagannatha, 3 Dig, 148, 249-251, 263). With reference to the interpretation of panehvarshiya, which occurs in several paragraphs of Dattaka Mimamsa I may add that Mr. Sutherland himself has rendered it in paragraph 31 as meaning 'a child of five years,' and Mr. Mandlik, the eminent Sanskrit scholar and Hindu lawyer of Bombay, has translated the same expression of the Kalika-purana by the phrase 'a Roy of five years,' in paragraph 20, Section v, chapter IV of the Mayukha. Whether the latter phrase is distinguishable from the expression 'five years old,' may be doubtful, but I think the diversity of phrases indicates that panchvarshiya must not he understood as necessarily meaning a Roy who has passed the fifth anniversary of his birth. The expression in the text of the Kalika-purana quoted in paragraph 22 of the Dattaka Mimamsa, and in paragraph 20, Section v. chapter IV of the Mayukha, must not be understood without reference to the imperative injunction which immediately precedes it: ' After their fifth year, O King, sons given, and the rest are not sons,' which I take, as everybody else has understood it, to be the general rule governing what follows in the text, and thus applicable to tonsured and untonsured boys alike. The original Sanskrit of the sentence which I have just quoted is 'urdhwantu panchmadvarshatna dattadyah suta nirpa,' and literally rendered would be 'above the fifth year the given and others are not sons, O King,' which leaves no doubt that the age referred to is below the fifth anniversary of a boy's birth: and 'panehvarshiya,' which occurs in the sentence immediately afterwards, must by reasonable interpretation, and with duo regard to consistency, be understood to mean 'a Roy in his fifth year,' and not one who has exceeded that age, and has not yet attained the sixth anniversary of his birth.
85. I have dwelt upon this matter at such length, for I find that the only authority in the shape of a ruling on this point, cited on behalf of the respondent, Thakoor Oomrao Singh v. Thakooranee Mehtab Koonwer, N.W. P.H.C., Rep., 1868, 103 a, proceeds, as appears from the judgment, upon the error of Mr. Sutherland to which I have referred in the preceding observations; for it was held in that case by Roberts, J., that under the Dattaka Mimamsa the age of five years in not the ultimate limit of adoption, and that according to that authority, so long as an adoption takes place whilst the boy is below six years, it is valid. The same mistake--and I say this with profound respect--appears to be the basis of the observation in West and Buhler swork (p. 1059, 3rd ed.)--that 'theDattaka Mimamsa seems to allow adoption after tonsure to six years of age.' The judgment shows that the authority relied upon for this proposition was paragraph 53, Section iv of the Dattaka Mimamsa, in translating which, as I have already shown, the words 'under six' between brackets have been interpolated by Mr. Sutherland by way of explaining 'panchvarshiya,' but which words do not exist in the original Sanskrit text. The judgment, however, so far as it relates to the exact question of age, is obiter dictum, and I may say with due respect that the dictum, is erroneous with reference to the Dattaka Mimamsa. And I may repeat here that, in my opinion, that authority leaves no doubt that an adoption in the Dattaka form is wholly null and void if made after the adopted Roy has completed the fifth year of his age--(see Macnaghten, p. 72). And it is equally clear that the conclusions of Nanda Pandita in his Dattaka Mimamsa are not accepted by other authorities.
86. It seems to me, therefore, desirable to quote a passage in which Dr. Jolly (p. 161) has summarised the state of authorities of- Hindu law upon the exact point now under consideration: 'The restrictions in regard to the ago of the person to be adopted have been partly dropped in Western India, but as they are being strictly maintained elsewhere, it will not be out of place to examine the state of authorities on the subject. The principal text is from the Kalika-purana. It states that no Roy should be adopted on whom the ceremony of tonsure has been performed in his natural family or who is more than five years old. However, this text is declared to be spurious, or otherwise explained away, in Mayukha (iv, Section 20), Dattaka Chandrika (ii, 20-23), and other works; and few writers go the length of rigidly enforcing either of these two restrictions as to the age of the person to be adopted. Thus the two rules are fully recognized in the Dattaka Mimamsa. On the other hand, the Nirnayasindhu permits the adoption of one more than five years old, provided that the ceremony of investiture or initiation (upanayana) has not been performed for him in his natural family. Dattaka Mundi admits initiated persons even to adoption, but states that such a person becomes the son of two fathers--(Dwyamushyayana),--in consequence of his adoption; and that uninitiated persons are more fitted to be adopted than the initiated. The Dattaka Tilaka does not consider marriage even as a bar to adoption, in case the person to be adopted belongs to the same gotra as the adopter: only the author of this work is careful to add, that one more than five years old must not be adopted against his will. The Dattaka siddhan-tarnanjari declares that it is not lawful to adopt a married man, but that one initiated, or more than five years old may be adopted, though adoption before that age is preferable. The Samskara-kaustubha does not recognize any restriction as to age, even in the case of those who belong to a different gotra from the adopter. Modern practice in the native states seems to correspond to this.'
87. In this state of authority, the course which the argument in this case has taken suggests the consideration of the question under the three following heads:
1st--Whether the passage of the Kalika-purana is itself authentic:
2nd--If so, whether it is capable of any such interpretation as would render the rigid limit of five years inapplicable to this case: and (as a corollary)
3rd--Whether the authority of the Dattaka Mimamsa is so binding upon ' us as to preclude our adopting any other interpretation than that of Nanda Pandita.
88. In considering the first of these points, it must at once be premised that the Kalika-purana besides its religious and moral authority, is universally recognised as one of those ancient sources of law which precede the formation of the various schools in which the Hindu law has since divided itself by the process succinctly described by the Lords of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathy, 12 Mob. I. A., 397, at p. 435. 'The remoter sources of the Hindu law are common to all the different schools. The process by which those schools have been developed seems to have been of this kind. Works universally or very generally received became the subject of subsequent commentaries. The commentator put his own gloss on the ancient text; and his authority having been received in one and rejected in another part of India, schools with conflicting doctrines arose.'
89. Further, their Lordships go on to say,--'The duty, therefore, of a European Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.' These observations are undoubtedly binding upon us in this Court; and relying upon them the learned Pandit, in support of the appeal, has argued that the authority of the Dattaka Mimamsa is so supreme in the Benares school, that we are not at liberty to depart from it, even in matters of the smallest detail. But the first point which I am now considering seems to me to be virtually one of fact, because it has to be considered whether the passage of the Kalika-purana, upon which the whole argument of Nanda Pandita proceeds, is in itself a genuine and authentic text of that purana. And I think the dictum of the Lords of the Privy Council, which I have just quoted, does not prohibit us from ascertaining a question such as this by reference to other authoritative works of Hindu law, which hold the authority of the Kalika-purana in as high an estimation as Nanda Pandita himself.
90. Mr. Morley and Mr. Siromani (p. 43) have stated in a tabular form the various authoritative law books which prevail in each school of Hindu law, mid the former goes on to say,--'It must be distinctly remembered that no work of the Bengal school can be considered to be concurrent or interchangeable with the writings which prevail in the other schools or of any authority out of the limits where the Bengali is the language of the people, with the exception, however, already noticed, regarding the law of adoption; and that although the works above enumerated, not being according to the Bengal school, are for the most part only quoted in those schools under which they are arranged, there seems to be no reason why such works might not be received as authorities indiscriminately in Mithila, Benares and the Mahratta and Dravida countries; but, of course, being of greater or less weight according to the custom of the countries.' (Morley, Dig. I, p. ccxxii). These observations, which, I think deserve weight, may well be supplemented by what Mr. Mayne has said (Section 37) with special reference to the divergencies in the law of adoption:
The more closely we study the works of the different so-called schools of law other than those of Bengal, the more shall we be convinced that the principles of all are precisely the same. The local usages of the different districts vary. Some of these usages the writers struggle to bring within their rules. Others they silently abandon as hopeless. What they cannot account for they simply ignore.
91. It will thus be observed that whilst upon other subjects the Mitakshara and the Dayabhaga schools are divergent, upon the particular subject of adoption the same authorities are recognized in the main, though upon questions of minor detail each school has a favourite authority of its own. And it is important to remember that even the Dayabhaga school, which on some significant points is in conflict with the Mitakshara school, has no special, work of its own on the subject of adoption.
92. I now proceed to consider whether the passage of the Kalika-purana, upon which so much has been said, is in itself an authentic text; and the best way to consider this question would be to enumerate the various authorities for and against its authenticity. And in doing so, I must first of all quote a passage from Macnaghten's Hindu Law (p. 74) where he says,--'The limitation to the age of five years is founded on a passage in the Kalika-purana, and the authenticity of that passage is doubtful. The Dattaka Chandrika makes no mention of it, though the Dattaka Mimamsa does.' This sentence, so far as it states that the Dattaka Chandrika makes no mention of the passage of the Kalika-purana, is clearly inaccurate, because that passage is referred to by that authority in paragraph 25, Section 2, and there it is said, after quoting a considerable portion of the passage; ' As for what they thus read as from the pur anas, that is unauthentic.' These words are understood by Dr. Jolly (from whom I have already quoted) and by Mr. Siromani (p. 130) to refer to the passage in question, and a comparison of the original of the Dattaka Chandrika with paragraph 22, Section 4 of the Dattaka Mimamsa suggests the same conclusion. These two great authorities are thus in conflict with each other as to the authenticity of the passage of the Kalika-purana, and of them Macnaghten says that in questions relative to the law of adoption they are equally respected all over India (Prel. Rom., p. xxv), being the two special works on adoption. The next great authority which does not accept the authenticity of the passage is the Mayukha, which belongs to the Maharashtra Sub-division of the Mitakshara school; and in paragraph 20, Section 5, chap. IV, after quoting the whole of the passage of the Kalika-purana goes on to say,--'But much reliance is not to be placed on this passage; for it is not to be found in two or three copies of the Kalika-purana.' (Stokes, p. 65; Mandlik, p. 58). Thus out of these three great authorities, which all belong to the Mitakshara school, the Dattaka Mimamsa is the only one which accepts the passage of the Kalika-purana as authentic, and the other two reject it as spurious. It is important, therefore, to consider the respective periods when these various authoritative works were composed. The authorship of the Dattaka Chandrika is apparently involved in considerable doubt (Mayne, Section 30; Mandlik, Int. 73); but it is admittedly a work of older date than the Dattaka Mimamsa. Then in regard to Mayukha, Mr. Mayne (Section 28) says,--'It is written by Nilakantha, whose family appears to have been of Mabratta origin, but settled in Benares. He lived about 1600 A.D., and his work came into general use about 1700.' And the same authority (Section 30) goes on to say,--'Nanda Pandita, the author of the Dattaka Mimamsa, was a member of a Benares family, whose descendants of the ninth generation are stated by Mr. V. N. Mandlik to be still flourishing in upper India. He must, therefore, have lived about 250 or 300 years ago.' On the other hand, Mr. Siromani (p. 29), a Hindu writer, assigns as late a period as the year 1689 A.D. to Nanda Pandita. Another name of consequence in connection with the authenticity of the passage of the Kalika-purana is Raghunandan, the author of Udvahatatva to whom Siromani (p.28) assigns 1499 A.D., as the period when, he flourished. This name is of consequence because Mr. Golebrook in a note to paragraph 13, Section 11, chap. I, of the Mitakshara has said:
Raghunandan, in the Udvahatatva, has quoted a passage from the Kalika-purana, which, with the text of Vasistha, constitutes the ground work of the law of adoption as received by his followers. They construe the passage as an unqualified prohibition of adoption of a youth or child whose age exceeds five years, and especially one whose initiation is beyond the ceremony of tonsure. This is not admitted as a rigid maxim by writers in other schools of law: and the authenticity of the passage itself is contested by some, and particularly by the author of the Vyahara Mayukha, who observes truly, that it is wanting in many copies of the Kalika-purana.' (Stokes, p. 417). This note is quoted with approval by Macnaghten (vol. II, p. 177): and another note of Colebrook's is to be found in Strange's Hindu Law (vol. II, p. 222):
The genuineness of the text as a passage of that purana has been questioned by some authors; it is apparently not authentic, being wanting in many copies of the Kalika-purana, and bearing the look of an interpolation in those which do contain it, as it does not connect well with the context. But being quoted by most of the compilers on the subject of adoption, many of whom are writers of great authority, it must be received (whatever may be thought of its authenticity) as the expression of a doctrine that has their sanction.
93. This note is quoted by the author of a very recent English work on Hindu law (vol. II, p. 88), the Vyavastha Chandrika of Shama Charn Sircar, who points out the names of some other works in which the passage of the Kalika-purana has been accepted as genuine. And upon this ground the learned Pandit who has appeared in support of the appeal, argues that we are not at liberty to question the authenticity of the passage. But, as I have already said, the question is practically one of fact; and if Colebrook himself entertained serious doubts as to the authenticity of the passage (as is apparent from his two notes already quoted), I do not think we are bound to accept his opinion that, because certain authorities have accepted the passage, therefore it should be dealt with as authentic. At any rate, I think I should be justified in holding that the authenticity of the passage is extremely doubtful, and that it would not be safe to act upon it in the present case by setting aside an adoption which has actually taken place and been recognized ever since 1866.
94. It is perfectly true, as the learned Pandit on behalf of the appellant has pointed out, that under such conditions the observations of their Lordships of the Privy Council in The Collector of Madura v. Moot too Ramalinga Sathupathy, 12 Moo., I. A., 397, direct us 'not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which we have to deal, and has there been sanctioned by usage.' We are, of course, bound by this dictum, and if the question here were confined only to the interpretation of the passage of the Kalika-purana, and the deducing of a doctrine out of it, I should have been ready to accept the doctrine of the Dattaka Mimamsa: the more so, if that doctrine was clearly set forth. But here the authenticity of the passage itself is doubtful, and, so far, the question is not whether a doctrine is deducible therefrom, but whether the passage itself is a genuine text of the Kalika-purana. And in this light the question virtually resolved itself into a matter of the collation of ancient manuscripts of the purana; and it is perfectly possible that the copy which Nanda Pandita had before him and on which his whole argument proceeds, was an inaccurate one. At least, as I have already said, the authors of the Dattaka Chandrika and the Mayukha solemnly declare that such a passage does not exist in the purana; and this view is favoured not only by minor original Hindu authorities, but also by the conclusions of Mr. Colebrook himself, as shown by the passages which I have already cited. And under such circumstances, I think the conclusion at which I have arrived is not only justifiable but the safest.
95. This leads me to the second head of the inquiry in this part of the case, namely whether, even if the passage of the Kalikapurana is genuine, it is capable of any such interpretation as would show that the adoption in this case was not null and void by the simple fact of the plaintiff being older than five years at that time. And in considering this question, the first thing to be discussed is whether the interpretation of the Dattaka Mimamsa itself is intended to be universally applicable to all classes and all cases alike. This specific question was reserved by me for this part of the case, in enunciating the exact effect of the various paragraphs of that authority. Now, I think it may be safely said that the specific point is left open by Nanda Pandita himself, and leaves room for the opinion of Sir Thomas Strange (vol. 1, p. 90), that the stipulation as to five years being the extreme age for adoption, may have reference only to Brahmans destined for priesthood; and he draws this conclusion from the text of paragraph 53, Section 4, of the Dattaka Mimamsa itself, which, after prescribing five years as the limit of age for adoption, goes on to say that,--'The restriction is for the sake of securing an investiture of the characteristic thread conducive to the holiness resulting from the study of scripture, which is preceded by the previous acquisition of letters.' A note to that paragraph further explains the matter in the same light, and the conclusion is fortified by what is said in paragraph 30, Section 2, of the Dattaka Chandrika, which, accepting the passage of the Kalika-purana for the sake of argument, goes on to say, with reference to the limit of five years, 'this regards a Brahman seeking the fruit of holiness resulting from the study of scripture. For since the fifth year only is the principal season for the investiture of the characteristic thread of one desirous of holiness, as is shown by this text,--'for a Brahman desirous of holiness, resulting from the study of Scripture, the fifth year, etc'--the passage in question has the same foundation. But for one not so desirous, 'after the eighth year, the adopter, &c.;' 'A note to this paragraph further explains the matter; but without reference to any commentary, I think it is clear enough that once we restrict Nanda Pandita's interpretation of the passage in the Kalika-purana to priests only, there is no necessary conflict of interpretation between the Dattaka Mimamsa and the Dattaka Chandrika--the two greatest authorities upon the Hindu law of adoption. Sir THOMAS STRANGE (vol. 1, p. 90) favours such reconciliation and calls it 'a conclusion that appears the more forcible, considering that the upanayana is the appointed season for the commencement of education.' I, too, am prepared to accept the conclusion. And what has convinced me of its accuracy is no less an authority than the Smriti of Manu himself, where the sacred writer, after describing the age when the ceremony of tonsure (chudakarna) and the investiture of the sacred thread (upanayana) should be usually performed in the case of the three ' twice born classes,' goes on to say,--'Should a Brahman, or Ms father for him, be desirous of his advancement in sacred knowledge, a Kshatriya of extending his power, or a Vaisya of engaging in mercantile business, the investiture may be made in the fifth, sixth or eighth years, respectively' (chap, ii, v. 37). In this case, the plaintiff being a Kshatriya, the sixth year would be the proper season for investiture, even if he were desirous of ' extending his power; ' but there is nothing to show that he, or rather his father, was anxious for any extension of power such., as is contemplated in the sacred text: and I should say that to him the ordinary rule would be applicable, and that the eleventh year from the date of conception would be the proper period for his 'investiture with the mark of his class.' (Manu, chap, ii, v. 36). But because the interpretation of the passage in the Kalika-purana as adopted by Nanda Pandita in his Dattaka Mirnamsa is not clear, it will be justifiable and advantageous to consider how other authorities have interpreted the passage, especially as the Mitakshara and the Viramitrodaya are totally silent upon the point. And in doing so, I cannot do better than quote, at the risk of prolixity, a passage from a celebrated Sanskrit scholar and Hindu lawyer, Rao Sahib Vishvanath Narayan Mandlik, C. S. I., of Bombay, in his annotation on the Mayukha (p. 471):
As regards age, there is no restriction whatever. The only text restricting age is one said to be from the Kalika-purana; but Nilakantha considers the said passage to be spurious. Anantadeva, in the Samskarakaustubha, also disbelieves their genuineness. But he goes further and, assuming them to be genuine, shows how they are to be applied in support of the adoption. He concludes thus: 'Therefore, a Roy above five years of age, whose ceremonies have been performed, can become a Dattaka (given); this is established. The Dattaka Mimamsa favours the genuineness of the above passage--(see pages 20-25, Dattaka Mimamsa). The Dattaka Chandrika, like the Samskarakaustubha, doubts their authenticity, but shows that when properly interpreted, they contain no restriction of age--(see Dattaka Chandrika, page 54, line 5, and page 56, line 15). Kamalakara in the Nirnayasindhu says that a Roy of more than five years may be given, if he be willing to be given, in adoption. This shows that he upholds such adoptions in spite of the Kalika-purana, on the authority of the vedic texts. In his vivada Tahdava, the sapinda relationship of one so adopted is laid down; and this assumes the adoption as being duly made. Kamalakara thinks, however, that the samskaras (ceremonies) of the adopted should not have been made before the adoption. Krishnabhatta, however, in his commentary on the Nirnayasindhu, clears up the whole question, and decides in favour of all such adoptions, on general grounds. He shows that the passage from the Kalika-purana, as above noted, is spurious, but, even if it were genuine, he points out that, as it is given by some writers, it is incomplete. He supplies the omissions, and gives the complete passage as ho found it, and states that it refers to a son to be adopted by a king as a successor in his sovereignty, and not to an ordinary son. Such a son should, he says, have his samskaras (ceremonies) performed by the adopter.
96. Similar is the effect of what Dr. Jolly has said (p. 311) as to the doctrine of the Dattaka Tilaka. 'The restriction as to age, as stated in the Kalika-purana, refers to adopted sons other than sagotras after h having attained the age of five years, those only can be given in adoption who wish it.'
97. In this state of authority I do not think we should be justified in applying the rigid rule of five years to this case, upon the authority of the doubtful passage of the Kalika-purana, especially as Colebrook himself in the note which has already been partly quoted (Mitakshara, chap. 1, Section ii, Paragraph 13) goes onto say: 'Others, allowing the text to be genuine, explain it in a sense more consonant to the general practice, which permits the adoption of a relation, if not of a stranger, more advanced both in age and in progress of initiation.' And the same conclusion is supported by Macnaghten (p. 71, vol. i), who, being aware of the divergence of authorities upon the subject, has thus summarized the result: 'The question as to the proper age for adoption has been much discussed, and the most correct opinion seems to be that there is no defined and universally applicable rule as to the age beyond which adoption can take place, so long as the initiatory ceremony of tonsure, according to one opinion, and of investiture according to another, has not been performed in the family of the natural father.'
98. In regard to the third head of inquiry, namely, the exact footing of authority which the Dattaka Mimamsa holds in the Benares school, we have been referred on behalf of the appellant to a passage which occurs in Macnaghten's Hindu Law: 'In questions relative to the law of adoption, the Dattaka Mimamsa and Dattaka Chandrika are equally respected all over India, and where they differ, the doctrine of the latter is adhered to in Bengal and by the southern jurist, while the former is held to be the infallible guide in the provinces of Mithila and Benares' (p. 25). A similar expression is to be found in another part of the same work (p. 74) and the Lords of the Privy Council in referring to the same matter in The Collector of Madura v. Moottoo Ramalinga Sathupathy, 12 Moo., I. A., 397, at p, 437, observed: 'Of the Dattaka Mimamsa of Nanda Pandita and the Dattaka Chandrika of Davanda Bhatta, two treatises on the particular subject of adoption, Sir William Macnaghten says that 'they are respected all over India, but that when they differ the doctrine of the latter is adhered to in Bengal and the southern jurists, while the fromer is held to be the infallible guide in the provinces of Mithila and Benares.' 'The learned Pandit argues that because the Privy Council have referred to the phrase 'infallible guide,' therefore we cannot, even on points of detail, decline to adopt the interpretation or the opinion of Nanda Pandita's Dattaka Mimamsa. Now if the Lords of the Privy Council did actually intend to assign such supreme authority to the work, we should of course be bound by such recognition. But I understand their Lordships to lay down no such inflexible rule, and it is clear that the phrase 'infallible guide' was used by their Lordships as referring to what Sir William Macnaghten had said, and not to any rule which they themselves were laying down. This being so, I think we are entitled to refer to other works of authority to inquire whether the authority of Dattaka Mimamsa is so supreme as is sought to be given to it. The latest authority on the subject is the eminent Sanskrit scholar Dr. Jolly, whose researches into the original texts of Hindu Law have received publicity in his work on Hindu law, one portion of which is devoted to the subject of adoption. The learned author, after going into various authorities, summarizes the result of the whole chapter in the following words:
The result of this brief review of some of the principal doctrines of the Indian law of adoption may be summed up in a single sentence. It is simply a misfortune that so much authority should have been attributed in the Courts all over India to such a treatise as Nanda Pandita's Mimamsa, which abounds more in fanciful distinctions than, perhaps, any Other work on adoption; and it is high time that the numerous other treatises on adoption should be thoroughly examined and given their due weight. Even hitherto, in spite of the pressure exercised by the authority of Nanda Pandita, the prevailing tendency of decisions has been in favour of divesting adoption of arbitrary restrictions which have no foundation in equity and justice. The history of adoption in some of those European countries where adoption has been sanctioned by legislation offers a parallel to this.
99. This strong expression of opinion is fully borne out by what another eminent Sankritist and Hindu Lawyer, Mr. Mandlik, has said upon the same subject:
I shall only give one more example of a similar misapprehension and confusion. This is in regardto the Dattaka Mimamsa of Nanda Pandita and the Dattaka Chandrika of Kabera, miscalled Davanda Bhatta. The first is the work of Nanda Pandita of Benares. Mr. Colebrook calls it an excellent treatise on adoption. Of the author he says nothing beyond a general remark that biographical notices of all Hindu authors must be 'very imperfect.' If sufficient inquiry had been made, Nanda Pandita's history could have been easily found. Not one of the thirteen works of Nanda Pandit are authority in any part of this presidency. Indeed, except the first two, the others are not even known, As regards the Dattaka Mimamsa of Nanda Pandita, it was not known in Poona in 1826. . . . Nanda Pandita is nowhere even mentioned as an authority on this subject in the Kaustubha or the Nirnayasind.hu or the Dharma Siridhu and the Mayukhas, while the authorities on which Steele bases his summary of law as regards adoption are Kaustubha, Mayukha, Aditya Purana, Nirnayasindhu, Manu, Mahabharatha and Ramayana. The reader will now be able to see how far the remark of Mr. Sutherland in 1819, that the Dattaka Mimamsa is the most celebrated work extant on the Hindu Law of adoption, is warranted by facts. In this presidency it was not even known to the people in original for many years after the publication of its translation under the auspices of Government. And now the people are guided by the Nirnayasindhu, the Viramitrodaya, the Kaustubha, the Dharma Sindhu, the Mayukhas, and not by the Mimamsa or Chandrika. There are other works, too, on the subject of adoption, such as Dattaka Manjari, Dattaka Nirnaya, Dattaka Darpana, and others which are consulted in these parts, but they are not accessible to English readers. The opinions of Nanda Pandita are speculative, and are mere indicative of Ganda doctrines than of the usages or opinions of the South.' (Int. p. lxxii).
100. To sum up the results of my conclusions upon this part of the case, I hold that the passage of the Kalika-purana, upon which the limitation of five years age for adoption is entirely founded, is not proved to be authentic; that even if it be taken to be authentic, the interpretation adopted by Nanda Pandita in his Dattaka Mimamsa is not shown to be universally applicable; that the interpretation may be restricted only to Brahmans intended for priesthood; that this interpretation would bring the Dattaka Mimamsa in accord with the Dattaka Chandrika; that various other equally plausible interpretations of the passage have been adopted by other authorities; that such authorities may be referred to for the purposes of this question; and that the matter being so dealt with by those authorities, it would be unsafe to set aside the plaintiffs adoption upon the solitary ground that he was older than five years at that time. The adoption took place as long ago as 1866; it has ever since been recognised to be valid; and the plaintiff has ever since been in possession of his adoptive father's estate. I entirely concur with Mr. Hill when he urged that to such a state of things the remarks of the Lords of the Privy Council in Raja Haimun Chull Sing v. Koomer Gunsheam Sing, 5 W. R. (P. C.) 69, are applicable,--'It may also be admitted, on the assumption of the proof of undisputed possession for a long space of time, that every presumption of fact should be made in favour of the validity of the act by virtue of which it took place, and that the onus of proving those circumstances which render it invalid in point of law, if the nature of the case requires such proofs, ought to be on the other side.' 'The other side' in this case, upon whom the burden of proving the invalidity of the plaintiff's adoption would rest, is the defendant-appellant, and though the question of onus probandi is a rule applicable more to matters of fact than to questions of law, I think the dictum of the Lords of the Privy Council is wide enough to be applicable to this case, and that because the appellant has failed to show undoubted authority against the validity of the plaintiff-respondent's adoption, we must hold that adoption to be valid. Any other view would indeed most probably disturb many titles in the territories within the jurisdiction of this Court. And I think it proper to add that if, in my opinion, the defend ant-appellant had, by reference to undoubted authorities of Hindu law, established the proposition that five years is the rigid and inflexible limit of age for the validity of all adoptions among the ' twice-born 'classes, so as to be applicable even to Cshatriyas in the circumstances of the present case, I should have regarded it as my duty to remand the case for full investigation Of the question whether, among the clan of the Cshatriyas to which the parties belong, any such rigid rule prevails. And I may here observe that whilst on the one hand, in the written defence, no objection to the validity of the plaintiff's adoption on the specific ground of the rigid limit of five years was taken in the Court below, on the other hand, the evidence of Narain Singh, the natural father of the plaintiff, coupled with the action of Chandan Singh, has a very strong tendency to show that no such rigid limit of age is observed among the Thakur Cshatriyas to which the parties belong.
101. I might end my observations here, but almost all that I have said so far is only destructive criticism of the case set up by the appellant against the validity of the plaintiff's adoption. And in order to guard myself against being misunderstood as imposing no limit upon the age of adoption, and also because it would be more satisfactory to the parties, I shall, at the risk of saying what would, perhaps, amount to obiter dicta, express the conclusions at which I have arrived after the best consideration I have been able to give to the subject as to the ultimate period of adoption under the Benares school of Hindu law. I have already dwelt at considerable length upon the texts of Manu, which constitute the best authority on the conceptions of Hindu jurisprudence as to the origin of the four classes of mankind. I have also shown that, according to that sacred authority, the first three classes are called 'twice born,' because of the 'Gayatri' which hallows the sacred thread, the characteristic mark of the second birth. I have also shown that the investiture of the sacred thread is the turning point of such second birth, and that the hypothesis upon which adoption itself proceeds is the fiction of law that the adoptee is born in the adoptive family. 'If the primary object of adoption was to gratify the manes of the ancestors by annual offerings, it was necessary to delude the manes, as it were, into the idea that the offerer really was their descendant. He was to look as much like a real son as possible, and certainly not to be one who could never have been a son. Hence arose that body of rules which were evolved out of the phrase of Caunaka, that he must be 'the reflex of a son.' He was to be a person whose mother might have been married by the adopter; he was to be of the same class; he was to be so young that his ceremonies might all be performed in the adoptive family; he was to be absolutely severed from his natural family and to become so completely a part of his new family as to be unable to marry within its limits ' (Mayne, Section 92). What the matter really comes to, then, is that adoption, at least in the Dattaka form, proceeds upon a theory not dissimilar to that of a feigned parturition, and implies that the second birth has taken place in the adoptive family. And once this theory is conceded and the passsages in the Dattaka Mimamsa as to the limit of five years are restricted to special cases, no conflict between that authority and the Dattaka Chandrika continues to exist, and the second birth, as represented by the upanayana or the investiture of the sacred thread hallowed by the Gayatri, becomes the turning point of the proper period of adoption. The more so, as it is then that the boy, from being on the same level as a Stidra, rises to the position of being twice-born (Manu, chapter V). Both these authorities concur in holding that after the upanayana an ultimate bar is placed in the way of an adoption in the perfect form of Dattaka. Thus the age of the boy, as Mr. Mayne has pointed out (Section 123), is only material as determining the term at which the upanayana may be performed: a result which stands to reason, because if the second birth has already taken place in the natural family, it would be a violation of the legal fiction itself to say that the same second birth takes place again in the adoptive family. Further, the upanayana being, as I have already shown, the beginning of the education of a Roy in the duties of his tribe, it might well represent the ultimate limit when the Roy might be adopted into another family. Such is the conclusion of Sir Thomas Strange when, in speaking of adoption, he says: 'Where a child not related by blood is to be adopted, as may be the case where one so related is not to be had, it may be consistent to depend for the confirmation of the tie upon the performance of the initiatory rites in the adopting family by means of which the adopted is considered to be in effect born again, thus becoming more essentially the son of his adopting parent: a conclusion that appears the more forcible, considering that the upanayana is the appointed season for the commencement of his education.' (Vol. 1, p. 90). What the exact period for the upanayana may be, depends upon the circumstances as to the class to which the Roy belongs and the objects in life which he has in view (Manu, chap, ii, vv. 35, 39) and the time for it may in consequence vary within certain specified limits. This, I think, is the only way in which the Dattaka Mimamsa and the Dattaka Chandrika may be read together in a consistent and intelligible manner; and I would adopt the conclusion, not because of this reason alone, but also because, on going back to ultimate principles of Hindu law, this is the only way to read both these authorities consistently with the Smriti of Manu. Both these authorities belong to the category of Nivanda, or the lowest source of Hindu law, being commentaries or digests on special subjects of Hindu law by modern writers. Their authority is thus far below that of the Smritis, and I think that the Courts of justice in British India are entitled in dealing with them to place such an interpretation upon them as would be consistent with the whole theory of Hindu jurisprudence as indicated by the undoubted doctrines of the Smritis themselves. Thus the broad conclusion at which I have arrived is that, according to the Hindu law of adoption as prevalent in the Benares school, the performance of the upanayana, or the ceremony of the investiture of the sacred thread, hallowed by the Gayatri, representing as it does the second birth of a Roy and the beginning of his education in the duties of his tribe, as prescribed by Manu, is the ultimate limit when a valid adoption in the Dattaka form can take place. This doctrine, as pointed out by Sir Thomas Strange (vol. I, p. 91) has no application to the Sudras; for in their case the only ceremony of consequence in its theological and legal aspect in Hindu law is the ceremony of marriage. And it is hardly necessary to add that what I have said is enough to show that, so far as the Benares school of the Hindu law is concerned, I cannot adopt the recent ruling of the Bombay Court in Dharma Dagu v. Ramkrishna hinnaji I. L. R., 10 Bom., 80, where the adoption of a married asagotra Brahman was upheld, and where the doctrine of factum valet was carried almost further than in any case with which I am acquainted. But it is well known that in Western India the Hindu law of adoption is very lax, and if I have referred to the ruling, it is only to guard myself against being misunderstood as holding that those lax doctrines are applicable to the Benares school also.
102. I may add that the conclusion at which I have arrived is to the upanayana being the limit of the age for adoption is supported by the principle upon which the rulings of the late Sadar Adalat of Calcutta proceed in Kerutnarain v. Mussummut bhoobunesree, S. D. A., L. P. Sel. Cas, vol. p. 161, and in Ramkishore Acharj Chowdree v. Bhoobunmoyee Debea Chowdrain, S. D. A., L. P., 1859, part i, p. 229, both of which I cite by way of reference without necessarily accepting all that was said in those cases.
103. [His Lordship proceeded to discuss in detail the evidence bearing on the two questions previously stated with reference to the defendant's title, viz., (i) whether the defendant was in fact adopted on the 22nd April 1871, by Khushal Kuar, with or without the concurrence of the other widow, Rukam Kuar; and (ii), if so, whether such adoption was made under an authority given by Hira Singh. In the result, his Lordship found, first, that there was no trustworthy evidence to show that Hira Singh had ever given permission to his widow to adopt a son; and secondly, that the fact of the defendant's adoption was not proved. The judgment concluded thus:
104. Having given my best consideration to the whole evidence in the case, I agree with the lower Court in holding that the defendant Ganga Sahai's adoption by Khushal Kuar, in 1871, is not proved; and that upon the evidence produced it is impossible to find that any adoption took place at any other time. This finding renders it unnecessary to enter into the question of law enumerated by me as the third question in the defendant's case, namely, whether an adoption by a widow without any authority from her husband or the consent of his nearest heirs would be valid under the Benares school of Hindu law, which admittedly governs this case.
105. In my opinion, the appeal should be dismissed with costs.
106. I concur in the judgment of my brother Mahmood, and he has discussed the case so exhaustively that any observations on my part are unnecessary. The appeal is dismissed with costs.