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Lala Babu Ram Vs. Smt. Kishen Dei - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 8 of 1951
Judge
Reported inAIR1963All509
ActsHindu Law; Evidence Act, 1872 - Sections 115
AppellantLala Babu Ram
RespondentSmt. Kishen Dei
Appellant AdvocateK.L. Misra, ;A.P. Nigam, ;K.S. Verma, ;M.P. Rastogi, ;Brij Bahadur, ;Akramuddin, ;K.L. Nigam and ;R.K. Srivastava, Advs.
Respondent AdvocateG.B. Lal, ;A.P. Agarwal and ;Inayatullah, Advs.
DispositionAppeal dismissed
Excerpt:
(i) family - hindu adoption - 'puthrachayavaham' - qualification of a boy to be adopted and is not merely descriptive of the boy after adoption - prior to the performances of all the ceremonies which would complete the adoption - person should be capable of gift - other than a daughter's son, a sister's son or the mother's son, whose mother the adopter could not marry cannot be adopted. (ii) value of adoption - dattaka chandrika and dattaka mimansa - treatises to be a very good source of law of adoption amongst hindus. (iii) estoppel - section 115 of evidence act, 1872 - participation in ceremonies of adoption in absence of evidence showing consent to such adoption not leads to adoption - held, validity of adoption can be challenged. - - he also held that the defendant had failed to.....jagdish sahai, j. 1. this is a defendant's first appeal. the plaintiff-respon-dent srimati kishan dei is the widow of one lala madan gopal who was admittedly the last mate owner of the properties in dispute. the defendant-appellant lala babu ram alias brij kishore is the son of srimati sohini devi, daughter of lala narain dass, who was the paternal uncle itatners brother) of lala madan gopal aforesaid. the plaint allegations are as follows :-- lala ram dass, the father of the defendant-appellant lala babu ram had considerable influence upon lala madan gopal with the result that the latter declared the aeren-dant-appellant to be his adopted son on the 21st of may, 1940 and changed his name from babu ram to brij kishore. lala madan gopal died on the 8th of october, 1942, and the plaintiff.....
Judgment:

Jagdish Sahai, J.

1. This is a defendant's first appeal. The plaintiff-respon-dent Srimati Kishan Dei is the widow of one Lala Madan Gopal who was admittedly the last mate owner of the properties in dispute. The defendant-appellant Lala Babu Ram alias Brij Kishore is the son of Srimati Sohini Devi, daughter of Lala Narain Dass, who was the paternal uncle itatners brother) of Lala Madan Gopal aforesaid. The plaint allegations are as follows :--

Lala Ram Dass, the father of the defendant-appellant Lala Babu Ram had considerable influence upon Lala Madan Gopal with the result that the latter declared the aeren-dant-appellant to be his adopted son on the 21st of May, 1940 and changed his name from Babu Ram to Brij Kishore. Lala Madan Gopal died on the 8th of October, 1942, and the plaintiff as also the defendant entered into possession or the property in dispute. The property was managed By the defendant-appellant. With the lapse of time the defendant-appellant became indifferent to the plaintiff and started ill-treating her with the result that the plaintiff had to start a separate mess. The defendant-appellant also started destroying the property left by Lala Madan Gopal. In April 1946, the plaintiff had legal consultation and was advised that under the Mitakshara law La!a Madan Gopal could not have adopted the defendant-appellant who was his causin sister's son with the result that the adoption was invalid and void and that she was the exclusive heir of Laia Madan Gopal. The relief claimed in the plaint was for possession over the property in dispute to the exclusion of the defendant ana in the alternative to one-half share in the same if the Court found the adoption of the defendant to be valid. A decree for Rs. 2,000/- was also prayed for as mesne profits.

2. In the written statement filed by the defedant-ap-pellant it was admitted that his mother's father Lala Narain Dass was the uncle of Lala Madan Gopal. It was also admitted that on the death of Madan Gopal the plaintiff and the defendant became the owner of the property left by Laia Madan Gopal. The suit was contested mainly on the pleas that Lala Madan Gopal had adopted the defendant as the former inherited the entire property belonging to Lala Narain Dass, that the adoption of the defendant was valid both under the Mitakshara law as also under the custom prevailing among the Rastogi Banias, that the adoption having taken place on the 11th of May, 1940, and not on 21st May 1940, the suit was barred by limitation and that Lala Madan Gopal having adopted the defendant in the presence of the plaintiff and after the adoption having married him with the consent of the plaintiff, the plaintiff was estopped from pleading that the adoption was invalid on this ground as also on the ground that after the death of Lala Madan Gopal the plaintiff and the defendant executed a deed of gift in favour of Smt. Rajeshwari, the plaintiff's (laughter, in wmcn the defendant was described as the adopted son of Lala Madan Gopal.

3. The learned Civil Judge framed the following nine issues in the case:

'1. Did Madan Gopal deceased leave the movable property detailed in the list A of the plaint? If so, are items 6 to 8 and. 14 and 15 in the possession of the defendant?

2. Did Madan Gopal deceased leave movable property detailed in the list fifed with the written statement?

3. Was the defendant, adopted by Madan Gopal on 11th May, 1940, as alleged by the defendant?

4. Is the adoption of the defendant void as alleged by the plaintiff? If so, its effect?

5. Is the adoption of the defendant valid as alleged by the defendant. If not is the plaintiff barred from impeaching it by limitation?

6. Is there a custom of the adoption of sister's sons prevalent in the caste of Rastogis as alleged by the defendant In para 14 of his written- statement?

7. is the plaintiff entitled to any mesne profits? If so at what amount?

8. To what relief, if any, is the plaintiff entitled?

9. Is plaintiff estopped from questioning the validity 01 the adoption?'

On issue No. 1 the learned Civil Judge recorded the finding that Lala Madan Gopal left behind certain debts as aiso some moveables which are mentioned in the inventory prepared by the Commissioner and the defendant is in possession of the same. The learned Civil Judge decided issue no. 3 and the second part of issue No. 5 in the negative. On issue No. 2 the learned Civil Judge recorded the finding that me ornaments mentioned in the list attached to the written statement were stridhan property of the plaintiff and did not belong to Lala Madan Gopal. He also held that the defendant had failed to prove that any cash belonging to Lala Madan Gopal was in possession of the plaintiff. Issue No. 9 the learned Civil Judge answered against the defendant and in favour of the plaintiff by holding that the plaintiff was not estopped from raising the plea of the defendant's adoption being illegal and invalid. The learned Civil Judge answered issue No. 4 in the affirmative. He also held that the plaintiff is the sole heir of Madan Gopal and decided the first part of issue No. 5 and issue No. 6 also against the defendant. He answered issue No. 8 in favour of the plain-tiff and substantially decreed the suit on the 19th of December, 1960. This first appeal is directed against that decree.

4. We have heard Mr. Kanhaiya Lal Misra for the defendant-appellant and Mr. 8. K. Dhaon for the piaintiu-respondent.

5. It is common ground that the defendant-appellant can have no claims to the property in dispute if legally he could not be adopted by Lala Madan Gopal. It is conceded even by the learned counsel for the appellant that if the adoption cannot be upheld, the decree passed by the that Court cannot be set aside. The objection with regard to the adoption of the defendant-appellant is founded on the rule of Hindu law that the boy to be adopted must not be one whose mother the adopting father could not have legally married. The submission on behalf of the defendant-appellant, however, is firstly that this rule is restricted to the adoption of the daughter's son, sister's son and the mothers sister's son and no further and secondly that in any case there is a well recognized custom amongst the Rastogi vai-shyas, to which caste the parties belong, permitting the adoption of a cousin sister's son. Thirdly, it is contended that, at any rate, because of her conduct, the plaintiff-res-pondent is estopped from questioning the validity of the adoption of the defendant-appellant. We will take the three submissions made by the learned counsel for the appellant seriatim.

6. In Mulla's Hindu Law, 1952 Edn., p. 584, under the heading 'who may be adopted' it has been mentioned as follows:

'(3) he must not be a boy whose mother the adopting father could not have legally married; but in Bombay this rule has been restricted in recent cases to the daughters son, sister's son and mother's sister's son. This promotion, however, does not apply to Sudras. Even as to the three upper classes, it has been field that an adoption, though prohibited under this rule may be valid if sanctioned by custom.'

7. In Mayne's treatise on Hindu Law and usage, Edn., p. 230, in Article 175, it has been stated as follows:--

'There is another rule that no one can be adopted whose mother in her maiden state, the adopter could not have legally married.' (a)

The rule that adoption of one whose mother the adopter could not marry, in her maiden state, has been accepted in Dharam Sindhu, Samskar Kaustubh and Dattak Nirnaya.

8. Mr. Sutherland in the year 1821 laid down in his synopsis of rule on this subject to the following effect:

'The first and fundamental principle is that the person to be adopted be one who by a legal marriage with his mother might have been the legitimate son of the adopter. (Stokes Hindu Law, p. 644)'.

9. Sir Francis Macnaghten in 1824 wrote as follows: 'As to the three superior classes, the rule is that they cannot adopt a son whom it would be incest to have begotten and conversely that they may adopt a son, if without incest they could have begotten him'.

(Considerations on the Hindu Law, as is current in Bengal (1824), p. 150).

10. Sir Thomas Strange in 1825 adopts the proposition as laid down by Mr. Sutherland and says:

'One, with whose mother the adopter could not nave legally married, must not be adopted, and the exclusion seems to hold applying the principle to the sex, where the adoption is by a female. -- (Hindu Law, Vol. I, page 83)'.

Mr. W. H. Macnaghten in 1829 observes:

'(The party adopted) should not be the son of one whom the adopter could not have married, such as, his sister's son or daughter's son. -- (Principles and Precedents of Hindu Law, Vol. I p. 67).'

Mr. Justice Strange in 1863 says:

'84. According to an original text, the child to be adopted should be such as may be looked upon as 'the reflection of a son' This is held to mean 'the resemblance of a son' or such a one as the adopter might have legally begotten (Dattak Mimansa of Nanda Pandit, v. 16); that is, one whose mother he might have legally married (1, 83, Sutherland, 223).

85. Pursuant to this rule, a brother, a paternal or maternal uncle or a daughter's or sister's son could not be adopted (I, 83). (Mr. Justice Strange's Manual of Hindu Law, p. 22, 2nd ed.)'

11. Mr, Grady in 1868 merely reproduces Mr. Sutner-land and Sir T. Strange. (See A treatise on the Hindu Law of Inheritance by S. G. Grady, 1868, pp. 65 and 67).

12. After Dattak Nirnaya the oldest original text bearing on the point are contained in the Dattak Chandrika said to have been written either by Kuver or Devanand Bhatt. in Sloke I, para 11, the author quotes from the sage Sakala to the following effect:

'Sakala declares this; Let one of a regenerate tribe, destitute of male issue, on that account, adopt as a son, the offspring of a sapinda relation particularly; or also, next to him, one born in the same general family. If such exist not, let him adopt one born in another family, except a daughter's son, and a sister's son and the son of a mother's sister.'

13. In para 17 of the same section, the author quotes the sage Saunaka, who after pointing out from what classes adoption should be made says:

'But a daughter's son and a sister's son are affiliated by sudras. For the three superior tribes, a sister's son is nowhere (mentioned as) a son.'

14. In Section 11, para 7, a text of sage Saunaka is quoted in the following words:

'Having taken him by Both hands, with the recitation, of the prayer, commencing -- 'Devasya-twa, etc.', having, inaudibly repeated the mystical invocation -- 'angadange, etc.' having kissed the forehead of the child; having adorned with clothes, and so forth, 'the boy bearing the reflection of a son'.'

The Sanskrit words for the words underlined (herein ' ') are ^iq= Nk;k oge~ lge~*

15. In Para 8, Dattak Chandrika contains the follow-ing comment on the above text of Saunaka:

'The resemblance of a son, or in other words, -- the capability to have been begotten by the adopter, through appointment, and so forth.'

16. Nanda Pandit, the author of the Dattak Mimansa. writing in the early part of the 17th century, some centuries later than the conjectured date of the Dattak Chandrika, gives the same quotations from Sakala and Saunaka and similar comments on them, as we shall show presently. The matter is discussed in Section ii, Articles 74, 10/, 108; s. v. Articles 16 to 20 of the Dattak Mimansa.

17. In Article 74, the author quotes from Saunaka the text where the sage after slating the class from whom a son is to be adopted, says:

'Of all, and the tribes likewise, (in tneir own) classes only; and not otherwise. But a daughter's son, and a sister's son are affiliated by sudras. For the three superior trifles, a sister's son is nowhere (mentioned as) a son.'

18. In Article 107 Nanda Pandit cites the text of Sakata which had already been cited in the Dattaka Chandrika, s.l. Article 11 and in Article 103, he makes the following comment:

'By this it is clearly established that the expression 'sister's son' (in the last sentence of Saunaka's text, Section (sic)) is illustrative of the daughter's son, and mother's sister's son, and this is proper; for prohibited connection is common to all three. To enlarge would be useless.'

19. In s. v., Para 16, the author comments on the word. 'The reflection of a son' and says :--

'The resemblance of a son, -- and that is the capability to have sprung from (the adopter) himself, through an appointment (to raise issue on another's wife) and so tortn.. .'

20. In Para 18, the author returns to Saunaka's text ana says:

'Here even, the term 'sister's son' is illustrative or the whole not resembling a son, for prohibited connection is common to them all. Now, prohibited connection is the unfitness, (of the son proposed to be adopted), to have been begotten by the adopter himself, through appointment (to raise issue on the wife of another).'

In Para 19, the author says:

'The mutual relation between a couple being analogous to the one, being the father or mother of the other, connection is forbidden; as for instance,-- 'the daughter or the wife's sister, and the sister of the paternal uncle's wire.'

The meaning of the text is this; Where the relation of the couple, that is of the bride and the bride-groom, Dears analogy to that of father or mother; if the bridegroom be, as it were, father of the bride, or the bride stand in the light of mother, to the bridegroom, such a marriage is prohibited connection. The two examples illustrate these cases in their order.'

In Para 20, the author comes to the conclusion that one with whose mother the adopter could not have legally married must not be adopted.

21. Sakala's authority as a Sutra witter is undoubted. The principal Sakah of the Rig-Veda is called after his name (see Mandlik's introduction to the Mayuktia, p. 8 and Siromani's Hindu Law, p. 20). He is mentioned in the Smriti Ratnakara as one of the writers of the nine Puva (prior) Sutras. (Mandlik's Introduction p. 13 and Siromani, p. 24). in the Mahabharat he is named as a law giver (Mandlik's introduction, p. 15). In preface to the Vyavastha Uhandrika (p. 4) he is enumerated among 'the sages who wrote on the Dharam Shastra' and in West and Buhter (p. 28) he is mentioned as a Smriti writer, part of whose writings was in existence. He is also mentioned as a Rishi in Cole Brooke's Essays on the Religion and Philosophy of the Hindus, contributed to the Asiatic Researches in 1798 and 1805.

22. Even the learned counsel for the appellant has not asked us to assume that no Rishi by the name of Sakaia ever lived. According to West and Buhier portions of SaKaia's writings are extant. So far as we are aware no Court has field that the text attributed to him in Dattak cnandnka and Dattak Mimansa is not genuine. Admittedly the text has been allowed to go unchallenged for a period of duu years and several Hindu lawyers have written on adoption accepting the rule propounded therein.. It is, therefore, fully justified to assume that in support of the rule of exclusion laid down in Dattak Chandrika and Dattak Mimansa, there is high authority of Sakaia. Saunaka is also a Rishi of unquestioned authority. He was referred to as authority even by Manu. In Chapter III, v. 16 Manu said:

'According to Atri and to (Gotama) the son of Utatnya, he who thus marries a woman of the servile class, if he be a priest, is degraded instantly; according to Saunaka on the birth of a son, if he he a warrior,' (See Sir William Jone's translation of the Manava Dharma Shastra, edition of 1863, p. 49: also Sacred Books of the East, Vol. XXV, p. 78):

23. The Saunatsa Smriti is in existence and has been partially translated by Dr. Buhier in the Journal of the Asiatic Society, Vol., 35, Part 1, p. 149.

24. There can be no manner of doubt that both from the texts of Dattak Chandrika and Dattak Mimansa it is clear that the rule that one whose mother the adop'.er could not marry cannot be adopted in the regenerate classes is not confined only to the case of a daughter's son, a sister's son and the mother's sister's son. If the words ^iq= Nk;k oge* or learing the reflection of a son have the same meaning which have been assigned to them in the Dattak Chandrika and Dattak Mimansa and if the gloss of Nand Pandit is correct, then it is obvious that any one, even other than a daughters son, a sister's son or the mother's sister's son, whose mother the adopter 'could not marry, cannot be adopted. Mr. Misra has strenuously contended that in the first place the text of the Dattak Chandrika and the Dattak Mimansa is not authentic and secondly that the expression ^iq= Nk;k oge* does not relate to the pre-adoption state of the boy to be adopted but only describes him atter the adoption has been made, that is to say that it only declares that adoption having been made, the boy adopted bears the reflection of a son to the adopter.

25. So far as the first submission is concerned, it is in our opinion too late in the day to challenge correctness or authenticity oT the texts of Dattak Chandrika ana Dattak Mimansa. The Privy Council, the Supreme Court and the High Courts in India have held these treatises to be a very good source of the law of adoption amongst the Hindus.

26. In Bhagwan Singh v. Bhagwan Singh, ILR 17 ALL 294 (FB), Sir John Edge, C. J., who expressed the majority view, doubted the authenticity as also the authoritative value of the Dattak Chandrika and Dattak Mimansa, whereas Banerji, J., who represented the minority view, gave these treatises the highest value. The case went upto the Privy Council and is reported as Bhagwan Singh v. Bhagwan Singn, ILR 21 All 412 (PC). In that case tneir Lordships observed as follows:

'Both works have been received in Courts of law including this Board as high authority.'

27. In Rangama v. Atchama, 4 Moo Ind App l (PC), Lord Kingsdown says:

'They enjoy, as we understand, the highest reputation throughout India.'

28. In Collector of Madura v. Moottoo Ramalmga Sathupathy, 12 Moo Ind App 397 at p. 437 (PC), Sir James Colvile quotes, with assent, the opinion of Sir Macnagnten, J.

'If there were anything to show that in the Banaras school of law these works had been excluded or rejected, that would have to be considered but their autnonty have been formed as part of the general Hindu law founded on the Smritis as the source from whence all school of Hindu law derived their precepts. In Dr. Jolly's Tagore Law Lectures in 1883 that learned author says:

'Dattak Mimansa and Dattak Chandrika have furnished almost exclusively the scanty bases on which the modern law of adoption has been based.'

Both works are respected all over India that when tney differ, the Chandrika is adhered to in Bengal and by the Southern Jurists, while the Mimansa is held to be an inrailible guide in the Provinces of Mithila and Banaras. To call it infallible is too strong an expression and the estimates of Sutherland and of West and Buhier, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they nave become embedded in the general law.'

The Judicial Committee, the same day that it pronounces judgment in Bhagwan Singh's case, ILR 21 Ali 412 (PC), also delivered judgment in Balusu Gurulingaswami v. Baiusu Ramalakshamma, ILR 21 All 460 (PC) and observed at page 474 as follows;

'But both works have had high place in the estimation of Hindu lawyers in all parts of India and having had the advantage of being translated into English at a comparatively early period, have increased their authority during the British rule. Their Lordships cannot concur with Mr. Justice Knox in saying that their authority is open to examination, explanation, criticism, adoption or rejection, like any scientific treatises on European Jurisprudence, Such treatment Would not allow for the effect which long acceptance ot written opinions has upon social customs, and it would probably disturb recognized law and settled arrangements. bUT so far as saying that caution is required in accepting their gloss where they deviate from or add to Smritis, their Lora-ships are prepared to concur with the learned Judges.'

29. In 12 Moo Ind App 397 (PC) (supra) occurs the passage which was relied upon by the Judicial Committee in Bliagwan Singh's case, ILR 21 All 412 (PC). That passage rads as follows:

'Again of the Dattah Mimansa of Nand Pandit and the Dattak Chandrika of Devananda Ehatt, two treatises on the particular subject of adoption, Sir Macnaughten says that they are respected all over India but that when they difter, the doctrine of the latter is adhered to in Bengal and by the southern jurists, while the former is held to be imam-ble guide in the Provinces of Mithila and Banaras.' This decision was followed by Banerji, J. in Bhagwan Singh's case, ILR 17 All 294 (FB).

30. In Puttu La! v. Mt. Parbati Kunwar, AIR 1915 PC 15, the Judicial Committee while dealing with the Dattak Mimansa observed as follows:

'The Dattah Mimansa is undoubtedly a high authority on the law of Hindu adoption and is treated with respect. The authority of the Dattak Mimansa was considered by this Board in ILR 21 All 460 (PC) and in Bhagwan Singh's case, ILR 21 All 412 (PC) and the view of this Board was that the Dattah Mimansa is a work which has had high place in the estimation of Hindu lawyers in ail parts of India and has become embedded in Hindu law, but that caution is required in accepting the glosses of Nand Pandit in Dattak Mimansa where they deviate from or add to the Smritis.'

31. These treatises have been considered to be of great Value by the Bombay High Court in Waman Raghupati v. Krishnaji Kashiraj, ILR 14 Bom 249 and by the Madras High Court in Minakshi v. Ramananda, ILR 11 Mad 49 (FB).

32. Their Lordships of the Supreme Court in Abniraj Kuer v. Debendra Singh : [1962]3SCR627 while considering the value of the Dattak Chandrika and Dattak Mimansa observed as follows:

'There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagare Law Lectures had in no uncertain terms characterised trie latter to be of little value; and eminent scholars like Dr. Mandiik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandits views to unfavourable criticism. In spite of all this the Privy Council in 26 Ind App 153 (PC) did recognize that both the Dattak Mimansa and Dattak Chandrika had been received in Courts of law including the Privy Council as high authorities, and after drawing attention to Lord Kings-down's statements as regards these in 4 Moo Ind App 1 (PC) and Sir James Colvile's statement in 12 Moo Ind App 397 at 437 (PC) stated thus:

'To call it (i.e. Dattak Mimansa) infallible is too strong an expression, and the estimates of Sutherland and of west and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority tor so long a time that they have become embedded in the general law.' While saying this mention must also be made of the observations of the Privy Council in 26 Ind App 113 (PC) decided on the same date (March 11, 1899) but immediately before Bhagwan Singh's case, 26 Ind App 153 (PC), was decided, expressing their concurrence with the view that caution was required in accepting the glosses in Dattak Mimansa and Dattak Chandrika where they deviate from or add to the Smritis'.'

33. In view of these weighty pronouncements, any objection with regard to the authenticity or value of the text in the Dattak Chandrika and the Dattak Mimansa cannot 09 seriously entertained.

34. We are not impressed with the second submission of Mr. Misra either and are unable to hold that the expression ^iq= Nk;k oge* only describes the boy after adoption.

Locking to the bare text and even basing our judgment on first impressions, it appears to us that this expression deals with the qualifications of the boy to be adopted. In other words, the boy to be adopted must have the reflection of a son, that is one who could be like a son in his pre-adoption or natural state; the whole text of the passage shows that prior to the performance of all the ceremonies which would complete the adoption, the giver should be a person capable of the gift and the boy should be one bearing the 'reflec-tion of a son'. As was pointed out by Banerji, J. in Bhagwan Singh's case, ILR 17 All 294 (FB) :

'It cannot be reasonably contended that the body 'now bears the reflection of a son' because by reason of the adoption he does not become the reflection of a son but for all practical purposes he becomes the son of the adopter with ail the rights and obligations of a real son.'

Again it was pointed out by Banerji, J., (and we respectfully concur with him) as follows :--

'The object of marriage among Hindus is to procreate a son able to confer spiritual benefit and this cannot be done by the issue of a incestuous marriage. Hence the rules for marriage within prohibited degrees. The same being the object of the procreation of a son through the now obsolete practice of niyoga rules of prohibited relationship in Niyoga were also provided. As adoption is resorted to for a similar object, similar rules of exclusion founded on the analogy of Niyoga are the necessary consequence of the requirements of Saunaka that the son to be adopted should 'bear the reflection of a son', that is of a son born in wedlock, otherwise the efficacy of adoption would fail, as in that case the son to be adopted would bear the resemblance of the Issue of incestuous connection. Hence the rule propounded by Nand Pandit in Section V, 20 that 'such person Is to be adopted as with the mother of whom the adopter might have carnal knowledge', as translated by Sutherland, or 'for the mother of whom the adopter may fee! sexual love' as translated by Golapchandra Sarkar is a legitimate inference from and is warranted by the text of Saunaka that the adopted son should bear 'the reflection of a son --a text which thus imposes a prohibition on the adoption or persons of the description mentioned in Article 20, Section V of Dattak Mimansa.'

35. In Bhagwan Singh's case, ILR 21 All 412 (PC) the texts of Dattak Chandrika and Dattak Mimansa referred to above were considered by the Judicial Committee. Their Lordships observed as follows:

'The oldest original texts bearing on the point aw contained in the Dattak Chandrika. In Section I, para 11 of that work the author quotes the ancient sage Sakala to the following effect, After mentioning certain relatives to whom preference should be given in adoption among the regenerate tribes, he says:

'If such exist not, let him adopt one born in another family, except a daughter's son and a sister's son and the son of the mother's sister,'

In para. 17 of the same section the same work quotes the sage Saunaka who, after pointing out from what classes adoptions should be made, says: 'But a daughter's son ana a sister's son are affiliated by Sudras. For the three superior tribes a sister's son is nowhere mentioned as a son'.

In Section II, paras. 7 and 8, after quoting from Saunaka the expression that the adopted boy should bear the reflection of a son, the author adds : The resemblance of a son, cr in other words the capability to have been begotten, by the adopter, through appointment and so forth.' (Under-lined here in ' ') by us).

Nanda Pandit, the author of the Dattak Mimansa, writing in the early part of the 17th century, some centuries later than the conjectured date of the Dattak Chandrika, gives the same quotations from Sakala and Saunaka and similar comments upon them. (Section II, Articles M, 107, 708, Section V, Articles 16 to 20).'

36. The argument advanced at the bar before the Judicial Committee in Bhagwan Singh's case, ILR 21 All 412 (PC) was as follows:

'Mr, H. Cowall for the appellant, argued that the judgment of the minority of the Full Bench were rignt..... Even if the question should be treated as an open one, and his main argument was that it was not, after so many years of decision against such adoptions, the result left was that the whole controversy rested upon the effect of the Dattak Mimansa, Section I! Paras. 2, 7, 4, 91, 94,101, 108 and Section V, paras 16, 20 and of the Dattak Chandrika, Section I, paras 11, 17 and Section II, Paras 7-8. me authority of Sakala was there given.... .Sakala's text was conclusive .....The text of Saunaka had not been shown to have been misconstrued by the authors of the Mimansas.'

37. After quoting the texts as mentioned above ana after considering the arguments advanced at the Bar, the Judicial Committee observed as follows;

'The rule of law asserted by the plaintiffs in this case Is derived in the first place from the sacred texts which underlie all Hindu law; and, secondly, from books of high authority in the Benaras school as well as in others.'

38. We have already mentioned earlier that the majority view in Bhagwan Singh's case, ILR 17 All 294 (FB) expressed by Edge, C. J. was reversed and the view propounded by Banerji and Aikman, J. was accepted by the Judicial committee. In our opinion even though the Privy Council did not expressly say so, from their Lordships' judgment it can easily be gathered that the submissions made before them by Mr. Cowall that the texts in the Dattak Mimansa and the gloss of Nanda Pandit that the boy to be adopted must have the 'reflection (resemblance) of a son' were accepted and the minority view expressed by Banerji, J. was upneld in its entirety. The rule that the adoption of one whose mother the adopter could not marry, in her maiden state, is not permissible was recognised by the Privy Council in AIR 1915 PC 15 (supra). Sir John Edge, C. J. who, on his retirement from this Court, had become a member or the Judicial Committee, while delivering the judgment referred to the rule in question in the following words:

'It was pointed out by Banerji, J. in Jaj Singh Pal Singh V. Bijai Pal Singh, (ILR 27 All 417) on this question, as to whether a widow can lawfully adopt to her deceased husband a son of her own brother, that Nand Pandit in the Dattak Mimansa 'extended to adoption by females the rule of Hindu law that no one can be adopted as a son whose mother the adopter could not have-legally married' (underlined (here in '') by us) an extension by Nand Pandit which is not based upon the authority of any of the Smritis or institutes or sages.'

39. This passage from the judgment of the Privy council clearly shows that their Lordships reaffirmed the rule but did not extend it to adoption by females.

40. Mr. Misrs has contended that the Judicial com-mittee has in ILR 21 All 460 (PC) (supra) clearly held that caution is required in accepting the gloss in the Dattak cnan-drika and the Dattak Mimansa where they deviate from or add to the Smritis. He supplements his submission by saying that since in the Manu Smriti, there is nothing to support the rule that the adoption of one whose mother could not be validly married, in her maiden state to the adopter, the text in the Dattak Chandrika and Dattak Mimansa to that effect should be ignored. He has relied upon the following. Sloka in the Manu Smriti:

^^ekrk firk ok n|krka ;efHn% iq=ekifn A

l'ka izhfrla;qa l Ks;ks nf=e% lqr% AA**

We are unable to agree with the learned counsel that there is anything in this Sloka which run counter to what is contained in the Dattak Chandrika and the Dattak Mimansa.

The words ^iq= l'k* have the same meaning as the words ^iq= Nk;k oge*. We see no inconsistency between the Manu Smiti and the Dattak Chandrika and the Dattak Mimansa.

41. We will now refer to the reported decisions.

42. In Madras the rule has been consistently followed except where there was a custom to the contrary, in Nara-sammal v. Balaramcharlu, 1 Mad HCR 420 at p. 424, Holloway, J. says:

'Mr. Sutherland, the greatest English authority on the subject (p. 223) lays it down as a fundamental principle that the person to be adopted must be one with the mother or whom the adopter could legally have intermarried.

Nand Pandit lays it down in distinct terms that the daughter's son is not reflective of a son as can legally be taken in adoption, and the commentator, Dattak Chandrika. Section 11, para 8 defines the reflection of a son, as the capability to be gotten by the adopter through appointment and so forth.'

43. In Jivani Bhai v. Jivu Bhai, 2 Mad HCR 462, the rule was recognised in the following words:

'On the point of the validity of the adoption of the son of a person with whom the adopter could not have intermarried, there will be found great conflict of opinion amongst the Pandits, but none whatever on the authorities.'

44. In Chinna Nagayya v. Pedda Nagayya, ILR 1 Mad 62 at p. 65 it was observed as follows:

'The rule of restriction is based as was the similar rule of Roman Law upon the principle that a man cannot adopt one with whose mother he could not have legally intermarried.'

45. In Sriramulu v. Ramayya, tLR 3 Mad 15, muttu-swami, J. said:

'The restriction on the selection of a person to be 'adopted' by reason of his mother's relationship to the adopter is derived from the text of Saunaka and Manu cited in Dattak Mimansa, Section V, para 16 and Dattak Chananka. Section 11, Para 8 which prescribe that the person selected for adoption should bear the 'reflection of a son' (Sadirsa). This phrase interpreted in those treatises as meaning 'capacity to have sprung from the adopter himself through an appointment to raise up issue on another's wife and so forth' and the phrase 'so forth' is explained to refer to a legal marriage having been possible between the adopter and the mother of the boy fixed for adoption.'

46. The leading case from the Madras High Court-is ILR 11 Mad 49 (FB) (supra), tn this case the adopting mother was the Sagotra of Appa Shastri who had two sons, Kachapa Shastri, the elder, and Krishna Shastri, the younger. On the 19th of September, 1876, Krishna Shastri died leaving a widow named Minakshi Ammal and Kachapa Shastri died in 1887 leaving a minor son, In August 1887, Minakshi Animal adopted defendant No. 2 Chinnappien and it was admitted that his mother was a Sagotra of Krishna Shastri and it was founded by the Courts below that Krishna Shastri gave his sanction to the adoption and the defendant No. 2, was accordingly adopted by defendant No. 1. The plaintiff's case was that as no legal marriage was possible between Krishna Shastri and the mother of the defendant No. 2, in her maiden state, the adoption was invalid. The submission was accepted by the Madras High Court. Their Lordships relied on Saunaka's text cited in Dattak Mimansa, Section v Sloka 16(1) and in Dattak Chandrika Section II Sioka 7(2) where it was stated that in order that one may be eligible for adoption, one should bear 'the reflection of a son'. The learned Judges accepted the interpretation put on those words by the authors of Dattak Chandrika and Dattak Mimansa which was to the effect that there must be the

'capability to have been begotten by the adopter through appointment and so forth.'

47. Mr. Misra has contended that the rule as laid down in ILR 11 Mad 49 (FB) (supra) was not fully accepted in Vayidinada v. Appu, ILR 9 Mad 44 (FB), Simnadri Raju v. Satyanarayana Pantulu, AIR 1945 Mad 487 and K. S. Gopalachariar v. D. Krishna Chariar : AIR1955Mad559 .

48. The case in ILR 9 Mad 44 was one Where the adoption was of a brother's daughter's son and it was hem on the basis of a custom prevailing amongst the Brahman community that the adoption was valid. In Appayya Bhattar v. Vengu Bhattar, 15 Mad LJ 211, subrahmania Ayyar and Benson JJ. referring to the decision in ILR 9 Mad 44 observed as follows:

'We must take it that the Court considered that if the adoption of a daughter's or a sister's son was valid, the adoption of a brother's daughter must be equally or a fortiori, valid as the relationship in the latter case was more remote than in the former.'

The case is based on custom and not on the text of Hindu law.

49. In AIR 1945 Mad 487 the question related to the adoption of a boy whose mother belonged to the same Gotra as that of the adoptive father and it was held to be valid on the strength of custom permitting such an adoption. The learned Judges were only following a rule which was laid down by their Lordships of the Privy Council in 12 Moo Ind App 397 (PC) which reads as follows:

'The duty, therefore, of an European Judge who is under the obligation to administer the Hindu law, is not so mucn to enquire where the 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 written text of the law.'

50. The leading case from the Calcutta High Court is Hari Das Chatterji v. Monmotho Nath, ILR (1937) 2 Cal 265 where Derbyshire, C. J. and B. N. Mitter J. held that a Hindu of regenerate class cannot adopt a person whose mother the adopter could not have legally married in her maiden state.

51. It is true that in Haran Chunder Banerji v. Hurro Mohun Chuckerbutty, ILR 6 Cal 41, the learned Judges or the Calcutta High Court did hold that the words 'reflection of a son' were 'mere description'. That decision was not accepted in ILR (1937) 2 Cal 265 (supra) and we also find it difficult to follow. We have already in an earlier pan of this judgment given our reasons for holding that the expression 'reflection of a son' was not a mere description but was a restriction on the right of the adopter 'to adopt one whose mother he could not have legally married.

52. In Patna the position is that in Sri Ram v. Chandesn-war Prasad : AIR1952Pat438 the question arose as to whether the adoption of the defendant was invalid in law since Suraj Prasad Singh the natural father of the defendant was the brother of Genda Kuer, the wife of Kishan Kishore who had created the trust. The Patna High Court held as follows:

'In any case on principle it is difficult to hold that the rule of immoral and obsolete practice of Niyoga should be invoked in order to ascertain who could or could not be adopted. In my opinion, the legal objection raised on behalf of the appellants to the validity of the adoption cannot be sustained.'

53. In Mst. Saraswati Kuer v. Debendra Singh : AIR1956Pat340 the question was whether the wife's sisters daughter's son could be adopted. Their Lordships were of the opinion that the expression ^iq= Nk;k oge* had the same meaning which was given to it by Golap Chandra Sarkar. The learned Judges observed as follows :

'All that this expression may suggest to the reader or the whole passage of Saunak is that the boy who was not the real son of the adopter has now become finally related to him through the rites that have already been described.'

54. In Chandi Charan v. Nabagopal Sarkhel : AIR1957Pat365 the adoption was challenged on the ground that it violated the Niyoga rule. The Patna High Court held that the Niyoga rule had become obsolete and the only persons whose adoption was prohibited was the daughter's, son, the sister's son and the mother's sister's son.

55. The view taken in these three decisions was departed from by the Patna High Court in Ado Rai v. Huro Rai : AIR1958Pat233 which is the latest decision of that Court, and their Lordships relying upon the Dattak Chandrika and the Daitak Mimansa texts held that one whose mother in her maiden state could not be married to the adoptive father, cannot be adopted.

56. Mr. Misra has contended that in the last decision, the Patna High Court has given no reasons for disagreeing with the earlier decisions of that Court. It would be noticed that one of the Judges in Ado Rai's case : AIR1958Pat233 was common to one of the earlier decisions. The reasons on which Ado Rai's case : AIR1958Pat233 is based is that the learned Judges did not accept the translation of Nand Pandit's text by Golap Chandra Sarkar which was accepted in : AIR1956Pat340 (supra). We nave already said in an earlier part of this judgment that we cannot read the expression ^iq= Nk;k oge* as the description of the boy after adoption. We have held that expression to mean that the boy proposed to be adopted should, in the pro-adoption state, be like a son to the adopting father. We have also held that the rules of adoption laid down by Nand Pandit that the mother of the boy to be adopted must be one who could be married by the adoptive father is a valid rule of Hindu law.

57. For the reasons mentioned above, we find ourselves with great respect, in dis-agreement with the viewtaken by the learned Judges of the Patna High Court in the three earlier decisions and respectfully agree with the decision in Ado Rai's case : AIR1958Pat233 .

58. Even in Bombay the judicial opinion has not been that the expression ^iq= Nk;k oge* is a description of the boy after adoption and not a qualification in him for adoption. In Ram Chandra v. Gopal, ILR 32 Bom 619 the learned Judges clearly held that that expression was used in the sense of a qualification of the boy to be adopted -and not his description after the adoption had. taken place. The learned Judges observed as fellows:

'For Ranade, J. evidently considers the restriction evolved by Nanda Pandit out of 'Putrachhaya' to be simply recommendatory, He says 'the essential idea is that the boy should have the resemblance of a son, which really means that he should be of the same class and Gotra, if possible but, just as more distant as even a sagotra may be adopted the son of Mahakor, who was the daughter of a distant cousin seven degrees removed, was not ineligible for adoption by the widow of Asha Ram. ...I would hold, If the present case fell under the gloss of Nanda Pandit on the text 'Putrachhayavaham', that the restrictions therein were only recommendatory; but I have already stated my reasons for holding, that that gloss only contemplates the specific cases of Virudh sambandh mentioned, and it is not contended that the connection between the plaintiff 1's natural mother and the adopting father would have been OT that character.'

This decision was followed in Yamnabai Govind v. Laxuman Bhimrao, ILR 36 Bom 533.

59. In Bai Nani v. Chimi Lal, ILR 22 Bom 973 at p. 979 the learned Judges observed as follows:

'Lastly it deserves notice that, for the reasons which led their Lordships of the Privy Council to rule in Wooma Daee v. Gokoolanund Dass, 5 Ind App 40 (PC) that the positive restrictions laid down by Nanda Pandit were only directory and not prohibitive, even if this extension to the widows near relations were permissible, the restrictions would be at best directory only, and not mandatory, proper to be observed, but not obligatory and enforceable as positive law.'

60. In Chiman Lal v. Ram Chandra, ILR 24 Bom 473 also there is nothing to justify the conclusion that the learned Judges who decided the case read the expression ^iq= Nk;k oge* in any other sense than the qualification of the boy to be adopted. It is true that in most of the cases from Bombay it was held that the rule that the boy to be adoptgd must have the 'resemblance of a son' was a prohibition only against adoption of a sister's son, a daughter's son and the mother's sister's son and not against others, but with great respect to the learned Judges we find no good reason to confine the rule to these three classes. The gloss or Nanda Pandit is not restricted to these three classes. In Bhagwan Singh's case, ILR 21 All 412 (PC) argument was made on the basis of that gloss and the gloss was relied upon by the Judicial Committee. No good ground has been put before us to restrict the scope of the all embracing words used by Nanda Pandit to the case of the sister's son, mother's sister's son and daughter's son only.

61. In Gopal Narhar v. Hanmant Ganesh, ILR 3 Bom 273 the following text of Nanda Pandit, was considered ana the learned Judge stated as follows:

'In Sec. V, Nanda Pandit commenting on the text of Saunaka, which enjoins on the adoption of one 'bearing the reflection of a son' (PI. 15) proceeds in PI. 16 tnus:

'(The reflection of a son) The resemblance of a son, and that is the capability to have sprung from (the adopter) himself, through an appointment (to raise issue on another's wife) and so forth ss (is the case) of a son, of a brother, a near or distant kinsman, and so forth. Nor is such appointment of one unconnected impossible, for the invitation or such (to raise issue) may take place under this text, 'for the sake of seed let some Brahman be invited by wealth,' and etc,' (P. 278)..... Whether we have regard to the treatises on Hindu law above quoted as of authority in this Presidency, or to the opinions of the Bombay snastns which have been mentioned or to the Hindu law as generally prevalent throughout India, wo think that it is a general rule and, as said by Mr. Sutherland, a 'fundamental principle' amongst Brahmans, Kshatriyas and Vaishyas that they are absolutely prohibited from, and incapable of, adopting a daughter's or sister's son or son of any other woman whom they could not, by reason of propinquity, marry, and that the burden of proving 'a special custom to the contrary amongst any members of these three regenerate classes, prevalent either in their caste or. in a particular locality, lies upon him who avers the existence ef that custom'.' (Underlined (here into ' ') by us). (P. 293)

'But it has been said that the maxim quod fieri non debuit factum valet applies here, and that the adoption, though sinful, must under that maxim be regarded as vano and cannot be set aside'.

'We, however holding the adoption to be invalid, inasmuch as Brahmans, Kshstriyas and 'Vaishyas are positively interdicted from, and therefore incapable of making sucrt an adoption, are of opinion that the maxim relied on tor the appellant is quite inapplicable.' (underlined (here into1') by us). There is no necessity for the Court to set aside that whicn is void ab initio. and the term 'set aside' cannot propeny be employed in such a case. That term is applicable only to that which is voidable, not to that which is null ana void.' (P. 293).

62. The view of the Bombay High Court that the prohibition is limited to the adoption of daughter's son, sister's son and the mother's sister's son has not been accepted oy other Courts in India and we are also, for the reasons already mentioned with great respect unable to tollow the same.

63. Coming to Avadh from where the case giving rise to this appeal arises the erstwhile Chief Court of Oudh In Udairaj Singh v. Mt. Raj Kunwar AIR 1929 Oudh 469 accepted the rule that one whose mother the adoptive father could not marry in her maiden state could not be adopted. The learned Judges observed as follows:

'On this view of the law, it is clear that Jangu smgn could not have adopted the son of the daughter of his brother Shanker Singh for he could not have- married the daughter of his brother Shanker Singh when she was unmarried.'

64. No other Awadh case has been brought to our notice.

65. So far as this Court Is concerned, we have already mentioned that the view of Banerji, J. in ILR 17 AM 294. (FB) was affirmed by the Judicial Committee In ILR 21 All 412 (PC). In ILR 27 All 417 the question was whether for her husband a widow could adopt her brother's grandson. The argument was

'that, just as in the case of an adoption by a rather the mother of the adopted child should be a person between whom and the adopting father there might have been a legal marriage, so also in the case of an adoption by a widow with the assent of her husband the father of the adopted child must be a person who might lawfully have been the husband of the adoptive mother.' In this case the general rule laid down in Dattak Chanarika and Dattak Mimansa that the test of eligibility for adoption, is the capability to have been begotten by the adopter through an appointment and so forth was confined to the case of a male person adopting the boy io himself, and its extension by the authors of the two treatises mentioned above to the case of females was held to be without support of textual authorities. The learned Judge obviously meant to say that whereas for male persons there was an authority of Smriti writers, like Sakal and Saunaka, there was no such authority for the extension of rule in case of the females.

66. In Lali v. Murlidhar, ILR 28 All 488 (PC) the question was whether the adoption of a sister's son was valid. In support of the adoption certain entries in the wajib-ul-arz were sought to be treated as will or gift in favour of the adopted boy. The Judicial Committee held that even though the wajib-ul-arz might be treated as a will, the words 'adopted son' in the declaration were descriptive only, and not the 'reason and motive of the gift'. Their Lordships further held that the intention was to give him the property as an adopted son capable of inheriting by virtue ot the adoption, but as his adoption was invalid by Hindu law, and not warranted by family custom it gave him no right to inherit, and the gift did not take effect.

67. A reference was also made before us to Dharam Prakash v. Mt. Kalawati Devi : AIR1928All459 . That decision, however, was reversed by the Judicial Committee in Kalawati Devi v. Dharam Prakash . The question involved in the case was whether the adoption made by a Hindu widow of ner brother's daughter's son was valid and the Judicial committee held that it was not, No other case from Allahabad has been brought to our notice.

68. Mr. K. L. Misra contended that there are certain observations in the judgment of Sir John Edge in il.R 17 All 294 (FB) which were not disapproved of by the Judicial Committee and, therefore, those observations must be taken to be the view of this Court, for the view of Sir Jonn Edge was supported by the majority of the Judges constituting the Full Bench. It is difficult to accept the argument. The decision of Sir John Edge and that of the learned Judges who concurred with him was reversed by the Judicial Committee on all the points involved in the case in ILR 21 All 412 (PC). In fact Sir John Edge himself after becoming a member of the Judicial Committee in AIR 1915 PC 15 (supra) accepted the rule of Nanda Pandit that no one can adopt as his son a person to whose mother the adopter could not have been legally married.

69. For the reasons mentioned above, we are of the opinion that inasmuch as L. Madan Gopal could not nave married the mother of the defendant-appellant, the adoption of the latter by the former is invalid. We may, however, state that in coming to this conclusion we have not fallen back on another rule laid down by Ashwalayan and Nanaa Pandit, the same being 'Virudh Sambandh Barjniya' for the simple reason that their Lordships of the Supreme Court in Vallabhalalji v. Mahalaxmi Bahuji Maharaj : [1962]3SCR641 have held this rule laid down by Nanda Pandit to be e mere recommendation.

70. An argument was advanced before us on behalf OT the respondents that in any case so far as the adoption of 3 sister's son is concerned, the Judicial Committee in Bhagwan Singh's case, ILR 21 All 412 (PC) has clearly held it to be invalid and it was contended that the word 'Bhaglni' is comprehensive enough to include a cousin sister, i.e., the daughter of father's brother. It is true that the word 'Bhagini' is used also for a cousin sister and the expression 'Bliagneya' for the cousin sister's son. It is also true that a marriage amongst regenerate classes with father's brothers sister is invalid on the ground of being Sagotras. consequently, it appeers to us that the adoption of the son of father's brother's daughter would also be invalid according to the decision of the Judicial Commutes in Bhagwan Singh's case, ILR 21 All 412 (PC). However it is not necessary for us to express any final opinion on this point. We have al-ready held on the basis of the text of Dattak Chandrika and Dattak Mimansa that the adoption of one whose motner the adoptive father could not have married, in her maiden state, is prohibited amongst the regenerate classes, and it Is on this rule that we have based our decision.

71. A feeble attempt was made in the trial Court on behalf of the defendant-appellant to urge that the Rastogis were Sudras and did not belong to one of the regenerate classes. This plea obviously was the result of the tear on the part of the defendant-appellant that the adoption of tfie defendant-appellant may be held to be invalid on the ground that under the Hindu Law, adoption of a cousin sister's son In the regenerate classes was prohibited. Dr. Wlangal Deo Shastri, P. W. 4, a Ph.D. from Oxford University and an M.A. from the Punjab University and a very respectable witness, who himself is a Rastogj, stated that they are not sudras but kshattriyas. He further stated that he had carried on research in the matter relating to the origin or the Rastogis and what he stated was the result of his research. He also stated that the Rastogis did not look upon themselves as Sudras. He has been twice the President of the All India Harish Chandra Vanshi Mahasabha (Rastogis Sabha). There is no reason to disbelieve his statement. P. W. 5, Gunanand Shastri was a teacher of Sanskrit in the Girdhari Inter College, Lucknow, and had dealings with Rastogis' community. He has clearly stated that the Rastogis are not Sudras and they wear Yagyopavit.

P. W. 6, Inder Prasad, is a respectable man and Ras-togi by caste. He had testified that the Rastogis are not Sudras and they wear Yagyopavit and belong to the regenerate class. P. W. 7, Radhe Shyam is also a very respectable man who paid about Rs. 25,000/- yearly as income-tax and Rs. 3,000/- as land revenue. He is an MA.LL.B. and a lecturer in the Lucknow University and was a member ot the U. P. Legislative Council. He presided over the Moradabad Session of the All India Harish Chandra Vanshi Mahasabha (Rastogi Sabha) in 1944. He has also clearly deposed that the Rastogis belong to the twice born classes and are not Sudras. No evidence was produced on behalf of me defendant-appellant to show that the Rastogis are Sudras. On the contrary D. W. 7, Lala Prabhu Dayat, who is the uncle of the defendant-appellant and a practicing advocate has stated that 'he could not say that Rastogis are suaras' and that 'the plea of Babu Ram that Rastogis are Sudras was not taken with my consent.' it was for this reason 'tnat the case was argued before us on the basis that Rastogis belong to one of the three regenerate classes.

72. The next question to consider would be whether there is a custom prevailing amongst the Rastogis under which a cousin sister's son can be adopted. The trial Court has held that there is no such custom, and before us only a half hearted attempt has been made to prove the same. The evidence led by the defendant-appellant to prove this custom can be classified in two parts, i.e., one, the statemerits of witnesses to prove specific instances of adoption, and the other general statements made by some witnesses that such a custom exists. It may be stated that there is no instance either urged or proved of the adoption of a cousin sister's son. The instances alleged relate to the adoption of daughter's son and sister's son. The defendant-appellant wanted to rely upon 41 instances of adoptions, me plaintiff-respondent, however, only admitted the following instances:

1. Banwari Lal adopted Babu Ram in 1911-12 in Farukhabad.

2. Sheo Charan Lal adopted his sister's son Brij Monan Lal in 1918 in Farukhabad.

3. Mrs. Mahadeo Prssad adopted Jagat Narain in 194/ at Lucknow.

4. Jhandu Lal adopted Ashok Kumar, Nati, in October 1949, in Bulandshahr district.

5. Ballabh Das adopted Nauneet in October, 1949 m Lucknow.

6. Niadarmal of Meerut adopted Madho, Bhanga, about 30 years before the suit giving rise to this appeal was tiieu.

73-94. (After discussing the evidence relating to specific instances of adoption alleged to have taken place in Lucknow, Farrukhabad, Bulandshahr, Burdwan, Delhi, Morada-bad and Meerut and after pointing out that none of the instances have been proved, His Lordship proceeded:)

Even the learned counsel for the defendant-appellant could not seriously urge that any ether instance of adoption, than the six admitted by the plaintiff-respondent, had been proved. On the basis of those six cases, it cannot Be said that a custom has been proved.

95. It is true that some of the defendant's witnesses made statements showing that there is a genera! custom amongst the Rastogis recognizing adoption, like the one of the defendant-appellant but all of them could not bear the scrutiny of cross-examination. It is not necessary to mention their names and the grounds on which we have not been able to believe them for the simple reason that the learned counsel for the defendant-appellant himself did not place reliance upon their testimony and as we have already said above argued the matter relating to adoptions in a very haif-hearted manner. Besides the learned Civil Judge fias discussed that evidence in details and given good reasons for rejecting the same. We agree with his estimate or of that evidence. We are satisfied that on the basis ot the evidence on the record no custom, as alleged by the defendant-appellant, has been proved.

96. The only other question that remains to consider is whether the plaintiff-respondent is estopped from challenging the adoption of the defendant-appellant because of ner conduct. It is well established that there can be no estoppel against law. We have already held above that under the law the defendant-appellant could not have been validly adopted by L. Madan Gopal. Consequently, any supposed conduct of the plaintiff-respondent cannot estop her from challenging the validity of the adoption of the defendant-'appellant. In view of this finding, it is really not necessary to investigate the question as to whether in fact there are any acts of the plaintiff-respondent which would have estopped her from challenging the validity of adoption even if the principle that there is no estoppel against law was not applicable to this case. Three acts are attributed to the plaintiff-respondent and on their basis estoppel has been pleaded. The first one is the circumstance that she participated in the ceremonies relating to the adoption of the appellant; the second one is that the plaintiff-respondent married the defendant-appellant and the third one is that in some deeds, jointly executed by her and the defendant-appellant, the latter has described himself as the adopted son of L. Madan Gopal. Inasmuch as L. Madan Gopal himseir adopted the defendant-appellant and there is no evidence to show that it was the plaintrff-respondent who prevailed upon him to adopt the defendant-appellant, it cannot be said that it was any act of the plaintiff-respondent which led to his adoption. Before there can be any estoppel, it must be proved that the adoption of the defendant appellant could not have taken place without the consent of the plaintiff-respondent. Under the law, her consent was wnoiiy immaterial. The right to adopt belonged to L. Madan Gopal and he exercised it. Even if the plaintiff-respondent had not consented to the adoption, L. Madan Gopal could still have made the adoption. Besides, there is no good evidence to show that the plaintiff-respondent actually consented to the adoption of the defendant-appellant by L. Madan Gopal.

97. For the reasons mentioned above, in our judgment, the plea of estoppel cannot be pressed on the ground ot the plaintiff-respondent having participated in the adoption ceremonies. The conduct of the plaintiff-respondent in nav-ing married, assuming that she married the defendant-appellant, has got no connection with his adoption. It is an act subsequent to the adoption. Consequently, on that ground also, no estoppel against the plaintitt-respondent can be pleaded. The mere fact that the plaintiff-respondent joined the defendant-appellant in executing some documents in which the defendant-appellant described himself as the son of Lala Madan Gopal, can also be no ground to hold that she was estopped from challenging the adoption. The documents were executed long after the alleged adoption. Besides, there is no clear evidence to show that the plaintiff-respondent knew that the defendant-appellant had described himself as the son of Lala Madan Gopal. In the end, it may be stated that the plaintiff came to know that the defen-dant-appellant could not have been validiy adopted long after the marriage of the defendant-appellant and the execution of the documents. Consequently, even if, under a mistaken belief, she acted in that manner, inasmuch as those acts did not lead to the adoption itself, being subsequent in time, there cannot be any question of the bar of estoppel arising against the plaintiff-respondent.

98. For the reasons mentioned above, we are satisfied that there are no merits in this submission of the learned counsel for the appellant also.

99. No other submission has been made betore us.

100. The result is that the appeal is devoid of all merits. It is accordingly dismissed with costs.


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