Teja Singh, J.
1. This is a Letters Patent appeal from a judgment of the learned Single Judge of the Lahore High Court. The facts briefly stated are as follows: one Amar Chand died about 25 years ago, leaving surviving him a widow, named Mt. Durgi. On 18th February 1943 Mt. Durgi adopted Ram Sewak, a son of Chhitar Mai, one of her husband's collaterals, with the consent of Chhitar Mal. A formal deed of adoption was executed and was later on registered. Manohar Lai who is also Amar Chand's collateral brought a suit for declaration that the alleged adoption of Ram Sewak by Mt. Durgi was invalid and could not affect his reversionary interest.
2. His allegations were that no adoption had taken place as a matter of fact and that it was just a paper transaction. He also alleged that the parties were governed by Hindu law according to which Mt. Durgi had no right to adopt any son without obtaining the consent of the nearest reversioners and since the plaintiff was the nearest reversioner and his assent had not been taken, the adoption was not binding upon him. Both Mt. Durgi and Ram Sewak contested the suit and denied the plaintiff's right to the declaration prayed for. They admitted that they were governed by Hindu law but contended that the provisions of the law, as applicable to them, had been considerably modified by custom and since the adoption had taken place with the consent of Chhitar Mal, who was the only major reversioner of Amar Chand at the time the adoption took place, it was valid and legal. The following issues were raised by the trial Court:
1. Did defendant 1 adopt defendant 2 to her deceased husband?
2. Are not the parties governed by pure Hindu law in matters of adoption? If not, to what extent, Hindu Jaw has been modified by custom?
3. Is the adoption of defendant 2 valid under the Hindu law as modified by custom and as such is binding upon the plaintiff?
The first issue was found for the defendants. As regards the second issue, it was held that 'the law obtaining between the parties is that in the absence of an express or implied authority from her husband Mat. Durgi could adopt any of the agnates of her husband or any other person with the oonsent of her husband's kinsmen.
Issue 3 was also found in the defendants' favour and the plaintiff's suit was dismissed with costs. The plaintiff, after having unsuccessfully appealed to the District Judge, preferred a second appeal to the High Court, Lahore. It appears from the judgment of the learned Single Judge that the only point argued before him was whether Mt. Durgi was competent to adopt a son to her husband without the latter's authority but with the consent of his kinsmen. This question, the learned Single Judge, found against the plaintiff and dismissed his appeal.
3. The parties are Aggarwals of Gurgaon District and both sides are agreed that in matters of succession, adoption, etc., they are governed by their personal law. The appellant's learned Counsel contended that the strict provisions of Hindu law being that a widow could adopt a son to her late husband only if her husband had given her an express authority to do so, the adoption of Ram Sewak by Mt. Durgi which was admittedly without such authority, could not be upheld unless the defendants adduced evidence to prove a custom modifying the Hindu law on this point and since no evidence had been adduced at all in proof of any custom, the suit should have been decreed. This contention, in my opinion, is based upon two assumptions: (1) that the basic idea underlying adoption among Hindus is religious and the object of adopting a son being the spiritual benefit of the husband, no adoption is valid unless it is made by the husband himself or with his authority; (2) that the text of Shastras definitely prohibits an adoption by a widow without the husband's authority.
4. The first assumption is entirely unwarranted and almost all the renowned writers on Hindu law are now agreed that adoption was originally a secular institution and religious motive came to be attached to it later on under Brahminical influences. Reference in this connection may be made inter alia to the following passage occurring at P. 193 of Golapchandra Sarkar's Treatise on Hindu Law (1936 Bdn.):
It is erroneous to suppose that the law of adoption owed its origin to the doctrine of spiritual benefit conferred by sons, One cannot associate the sacred name of' religion with practices based upon immorality and looseness of sexual relation: there is no system of religion known that countenances an institution partly founded on adultery, seduction and lust.... As regards ancestor worship upon which the erroneous view is founded, its ritual shows that that ceremony is performed not so much for the purpose of conferring any benefits on the ancestors, as for the purpose of receiving benefits from them.
On the contrary, the doctrine of spiritual benefit seems to have been invoked for the purpose of discouraging the institution of subsidiary sons. The Hindu sag's who are the propounders of the Smritis or Codes of Hindu Law, appear to have introduced the doctrine of spiritual benefit derived from male issue, with the view of suppressing the laxity of marriage union, the looseness of sexual morality, the institution of subsidiary sons, and the improper exercise of patria proteslas.
Gour under the heading 'What is an Adopted Son?' has made the following observations (Hindu Code, by Gour (Edn. 1929) p. 354):
An adopted son is a creature of the law. He is spoken of as a secondary, subsidiary or a substituted son. His affiliation is stated to be an imitation of nature. His necessity arose from secular motive. His continuance has been assured by an assumed spiritual benefit he is supposed to confer upon his adoptive father, and his ancestors. But even persons, e.g., the Jains, who do not believe in a hereafter, practise adoption. The fact that other sons' whose spiritual efficacy was as great, if not greater, have become obsolete, and the adopted son remains, suggests that its raison detre must be 'the ordinary human desire for perpetuation of family properties and names.
Trevelyan in his well known book 'Hindu Law as Administered in British India' (Edn. 1912, P. 97) remarks that it is said that originally the motives for adoption were secular, and that subsequently religious and secular motives were mixed and adds that among some castes the, motive is purely secular. Mayne points out in his treatise on 'Hindu Law and Usage' (Edn. 1938, p. 196) that even after the spiritual theory had been evolved and adoption had pertained to religious character, the religious motive never excluded the secular motive.
5. As regards the second, the following text of Vasishta is regarded as authoritative by all schools:
But a woman should neither give nor accept a son except with the permission of the husband.' It is the interpretation of the text that has created all the difficulty. Sarkar at p. 206 of his book has summed up the different views in the following words:
In Mithila it is absolutely necessary that the husband should give his assent at the time of adoption; therefore a widow cannot adopt a dattaka son there.
In Bengal the husband's express assent is absolutely necessary and it is operative after his death, so as to enable a widow to make a valid adoption.
The Benares school follows the Bengal doctrine. In Madras including Mysore, Bombay and the Punjab a woman may adopt either with the husband's assent or with his kinsmen's assent if he died without giving any.
Similar is the opinion of Mayne. This is what he says while dealing with the power of a wife to adopt a son:
An adoption made to herself, except where the Kritrima form is allowed, would be wholly invalid. Nor can she ever adopt to her husband during his lifetime except with his assent. Her competency to adopt to him, after his death, whether with or without his assent, is a point which has given rise to four different opinions, each of which is settled to be law in the province where it prevails.' (P. 208) Then he quotes the above-mentioned text of Vasishtha and refers to the views of various schools. His observations regarding the Punjab are as follows:
In the Punjab the custom appears to vary. In Gurgaon a widow can adopt without any consent, if she selects a son from her husband's agnates. She cannot adopt any one else without the consent of such agnates. In Rohtak and several other districts, the husband's consent is necessary. In three cases, the Punjab Courts set aside adoptions by a widow for want of her husband's permission, two of these cases being from Lahore and Delhi respectively.' (p. 210)
Trevelyan at p. 121 of the book has remarked that in Punjab the custom varies in different localities.
6. The question was considered by their Lordships of the Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathy otherwise known as the 'Ramnad case' 12 M.I.A.397. The principal question raised in the appeals was the validity of an adoption made by the widow of the last male Zamindar of Ramnad and the principal contest was on the broad and general question, whether by the Hindu law, as current in Dravada country, a widow could adopt a son to her husband without his express authority, and if so, by whose assent that defect of authority must be supplied? Their Lordships started by referring to Mr. Colebrooke's notes on the Mitakshara and tfien quoted the following statement of law contained in the work of Sir Thomas Strange:
Equally loose is the reason alleged against adoption by a widow since the assent of the husband may be given, to take effect like a will after his death; and according to the doctrine of the Benares and Maharashtra Schools, prevailing in the Peninsula, it may be supplied by that of his kindred, her natural guardians; but it is' otherwise by the law that governs the Bengal Provinces.
After this they discussed other works such as Dattaka Mimansa of Nanda Pandit and the Dattaka Chandrika of Davanda Bhatta and made the following observations:
Of these Treatises, the Mitakshara is silent on the point in question. The Dattaka Mimansa of Nanda Pandit is opposed to the respondent's view of it; but it seems equally opposed to an adoption by a widow, under any circumstances. The Dattaka Chandrika allows a widow to give a son in adoption where her husband has not forbidden her to do so, implying his assent from the absence of prohibition. The Smriti Chandrika also permits a mother to give her son, if she be authorized to do so by an independent male. And it is argued, that what these last two authorities lay down concerning a widow's right to give, must by parity, of reasoning, be taken to be laid down concerning her right to receive a son in adoption.... It cannot therefore, be said that the proposition laid down by Mr. Colebrook, and adopted by Sir Thomas Strange, is not supported by at least one of the original treatises of undoubted authority in Dravada. The Dattaka Mimansa of Sri Kama Pandit, who is stated by the Judges of the High Court to be an authority very generally cited in the South of India also confirms the proposition.
Later on their Lordships proceeded:
Upon the whole, then, their Lordships are of opinion, that there is enough of positive authority to warrant the proposition that, according to the law prevalent in the Dravada Country, and particularly, in the part of it wherein the Bamnad Zamindari is situate, a Hindu widow, not having her husband's permission, may, if duly authorized by his kindred, adopt a son to him.
7. The learned Counsel for the appellant contended that the Ramnad case 12 M.I.A.397 merely laid down what the Hindu law, of adoption was in the Dravada country and it cannot be of any help to us in deciding the present case. He also referred us to the observations made by Mohamood, J. In Tulshi Ram and Anr. v. Behari Lal etc. 12 All.328 counsel further contended that since we are governed in the Punjab by what is popularly known as the Benares School of Mitakshara and similar was the case with that part of the country to which related the Allahabad case, it is the latter case that should be followed by us. Now, in that case an adoption had been made by a Hindu widow after her husband's death without his authority and without even the consent of any kinsmen of his. The plaintiffs, besides urging that the so called adoption was the result of fraud and collusion between the widow and the alleged adopted son's grandfather and that no ceremonies of adoption had been gone through, also argued that the adoption having been made without any authority of the late husband it was invalid. The point stressed by the defendants was that the maxim, quod fieri non debuit, factum valet was applicable and the validity of the adoption could not be challenged. It was not even alleged that the kinsmen of the deceased husband had assented to the adoption and it was, therefore, valid for this reason. It is correct that while discussing the text, Mahmood, J. made observations about the invalidity of an adoption made by widow with the consent of her husband, but with all deference they are mere obiter.
8. A perusal of Mahmood, J.'s exhaustive and learned judgment shows that he went into comparative authority of the various commentaries on the Mitakshara, discussed inter alia the intrinsic worth of Viramitrodaya and the Dattaka Mimansa of Nanda Pandit and came to the conclusion that, in so far as the indispensability of the husband's authority for adoption is concerned, the latter should be preferred to the Viramitrodaya. As is well-known the Viramitrodaya was composed by Mitra Misra by the direction of Raja Vira Sinha, whence the book is styled Viramitrodaya. Shama Charan Sirkar states in a foot note of his preface to vol. I of his Vivavastha Chandrika that the object of Mitra Misra's writing his work appears to have been with a view to re-establish or confirm the doctrines of the Mitakshara or of the Benares school, many of which were refuted by Jimuta Vahana, who was supported by Raghunandana and the other writers of the Bengal school; but Mitra Misra, reasoning on the arguments of Jimuta Vahana and the rest with great accuracy, has generally refuted their doctrines and confirmed those of his master, Vijvaneshwara. In the opinion of Shama Charan Sirkar, Viramitro-daya is the work of a great logician, and may be regarded as a complete Digest of the Dharmashastra of the Benares School, in which the author has generally expounded the doubtful passages, and supplied the deficiencies of the Mitakshara, and expressed what was left therein to implication. This is what Viramitrodaya has to say as regards Vasishtha's text to which I have referred already:
Some say that the adoption of a son by a woman without the assent of her husband being prohibited in this text, the son taken by a widow whose husband died without giving authority, does not become an adopted son. This is not tenable, since a sonless person has no access to heaven, and the procreation of a son is ordained to be necessary. Therefore the permission which he was bound under the Shastras to give is not to be considered as wanting in such a case. Nor can it be said that thus the portion, namely, 'unless with the assent of her husband' would be useless, inasmuch as there is no case to be excluded, and as the authority which a person is bound under the Shastras to give is in all cases necessary (and so assumed as given). Because the prohibition is levelled against a woman who wishes to adopt a son for her own sake when her husband, who is desirous of having moksha or freedom from the necessity of repeated deaths and births, or who has a son by another wife, cannot possibly give an authority to adopt.... But when the husband is dead, the assent of those only is necessary on whom she is dependent. In this view the object of the prohibition becomes reasonable. Therefore, although the husband be deceased without giving permission to adopt, atill an adoption by the widow is not invalid.
Nanda Pandit mainly relied on the text; that adoption may be made by a man destitute by a son and his commentary on the subject as given in Dattaka Mimansa reads as below:
From the masculine gender being here used, it follows that a woman is incompetent (to adopt). Accordingly Vasistha ordains; let not a woman either give or receive a son in adoption unless with the assent of her husband. From this the incompetency of the widow is deduced, since the assent of her husband is impossible.
One of the points that weighed with Mahmood, J. in preferring Nanda Pandit's view to that of Viramitrodaya was that under the behests of Hindu law the position of a woman in regard to the exercise of legal rights, be they of a temporal or spiritual character, was inferior to that of man. After quoting the text of Manu in verse 148, chap, v, that 'in childhood must a female be dependent on her father; in youth, on her husband; her lord being dead, on her son; if she has no sons, on the near kinsmen of her husband etc.' he observed that Hindu jurisprudence recognizes no equality between man and woman for temporal benefits. The conclusion arrived at by the learned Judge is not shared by a large number of commentators on Hindu Shasthras and some of them have even doubted the correctness of Manu's dictum and have characterised it as opposed to the Vedic principles. It is, however, not necessary for me to enter into discussion upon this point and all that I wish to say is, and I to so with great respect, that the remarks made by the learned Judge are of too general a nature and are not quite accurate. As the learned Judge has himself stated at page 350 of his judgment, in one respect at least, namely, the power to give a son for adoption man and woman stand on the same footing. The relevant text of the Mitakshara (chap. I, Section 11) is to the following effect: 'He whom his father or his mother give for adoption, shall be considered as a son given.' In addition, the learned Judge has not given due weight to the fact that if Nanda Pandit's view be adopted unreservedly, it would mean that a widow cannot adopt a son even if she had been authorised to do so by her deceased husband. This point was particularly emphasised by their Lordships of the Privy Council in the Ramnad's case 12 M.I.A. 897 while discussing Nanda Pandit's Dattaka Mimansa, and it was one of the reasons why they preferred Viramitrodaya to it. The relevant passage of the judgment has been quoted above. In my humble opinion, to follow Dattaka Mimansa in preference to Viramitrodaya in the face of those remarks, is virtually to ignore the dictum of the Privy Council.
9. It is correct that after discussing elaborately the views of different schools, Mahmood, J. came to the conclusion that the majority opinion was in favour of the indispensability of the husband's authority and this was one of the reaspns why he recognised to follow the law laid down in Ramnad's case 12 M.I.A. 397 but this was not the only reason. The other reason that weighed with him will be found in the following passage that occurs at page 361 of the report:
The only sub-division of the Mitakshara school, which disposes with the necessity of the husband's permission is the Maharastra Sohool. which shows preference to the doctrines of the Mayukha.... That the majority, of the schools of Hindu Law reoognize the indispensability of the husband's permission in some form or other has already been shown by me, and its seems to me that I should be doing nothing more or less than introducing into this part of the country the doctrines of Mayukhu, that is, the Maharastra School, if I were to adopt the whole length of Pandit Ajudhia Nath's argument on behalf of the appellant by holding that, for the validity of an adoption in the Benares School, the previous permission of the husband is not an essential condition; I will also later on show that such a course would also disturb the uniform continuity of decisions in cases governed by the Benares School.
These remarks go to show that the learned Judge recognised that Hindu law of adoption as regards widow's power to adopt without her husband's consent, was different in different provinces, but he held that the law, as understood and practised' in the part of the country to which the case related, insisted upon the husband's authority. From this it is clear that if it can be shown that the conditions in the Punjab are on a line with those prevailing in Dravada country rather than in the United Provinces or Oudh, the plaintiff cannot derive any help from the Allahabad case; and if we refer to the decisions where the question came up for consideration in one form or the other, it would leave no doubt that this is exactly the case.
10. The earliest decision is Gopi Kishen v. Gopi. kishen and Ors. A.I.R.1915 Lah.360, in which it was observed by the Bench consisting of Rattigan and Scott Smith, JJ. that:
It is a well-established principle of Hindu law that a widow can adopt a son to her late husband only in those cases in which she has been authorised by the latter to make the adoption, or possibly, where her late husband's kinsmen assent to the adoption and there has been no express or implied prohibition by her husband.
The appellant's counsel argued that the use of the word 'possibly' indicates that the learned Judges were not sure of the absolute correctness of the principles that they were laying down. This is probably true, but the remarks cannot be dismissed as valueless merely for this reason, because in view of the eminent position enjoyed by Eattigan, J., first at the Bar and then at the Bench, it is legitimate to presume that he must have been aware of the law of adoption as practised among the Hindus in the Punjab and a remark coming from him is entitled to great weight.
11. In Ram Kishore and Ors. v. Jai Narayan and Ors. A.I.R.1922 P.C.2, which related to non-agriculturist Dhusars of Gurgaon District, it was held that in matters of adoption the parties were governed not by the Mitakshara, but by Customary law and it had been established that among them adoption of an orphan was valid, but the observations made by their Lordships of the Privy Council and appearing at pp. 126 and 127 of the report throw some light upon the conditions prevailing in the Punjab so far as the applicability of the strict rule of the Mitakshara is concerned. This is what they said:
It is beyond question that, according to the law of the Mitakshara, as recognized by the School of Benares, an orphan cannot be adopted. It is also beyond doubt that in acne parts of Northern India, particularly in districts now in the Punjab or adjacent to the Punjab, the strict rales of the Mitakshara as recognised by the School of Benare, have not been followed by some castes, tribes and families of Hindus, and that customs which are at variance with the law of Mitakshara, as recognised by the School of Benares have been for long consistently followed and acted upon, and that when Moll custims are established they, and not the strict rale of the Mitaksbara with which they are at variance, are to be applied.
12. The latest case in point is Panna Lal v. Chiman Parkask and Ors. A.I.R.1947 Lah.54. The pieties were Aggarwals of Ambala District and the question was, whether an adoption made by a widow after her husband's death was valid? The position of the adopted son was that adoption had taken place with the consent of the nearest reversioners. The other side denied that there had been any consent. The High Court came to the conclusion that the.assent of the collaterals had been affirmatively proved and upheld the adoption. My learned brother Mahajan, J. who wrote the judgment of the Bench, disposed of the question in the following words:
In my opinion it is sufficiently established that defendant 2's adoption by Mt. Durga Devi was consented to by all the collaterals of Janki Praahad and it could not be questioned on the ground that it was invalid, because the widow could not make an adoption without the consent of her husband's collaterals.' It may also be mentioned that the adopted son in that case was an orphan and it was urged that he could not be adopted according to the Benares school of the law of Mitakshara. The learned Judge before discussing the evidence relating to the custom according to which an orphan could be adopted, observed that in this Province strict rules of Mitakshara had not always been followed by all tribes and families of Hindus. It is significant that though the case was hotly contested, the property involved appears to be of substantial value and the counsel representing the parties included some prominent members of the profession, it was not even alleged that whether the reversioners consented or not, the adoption was invalid because according to the Hindu law, by which the parties were governed, the widow had no right to adopt even with the reversioners' consent, in the absence of the husband's authority. The only (inference that can be drawn is that the parties has well as the counsel were fully aware that the school of the Mitakshara, as prevalent in the Punjab, authorised a widow to adopt a son with consent of her husband's reversioners, where the husband had not given her any authority to do so.
13. The pleadings of the parties in the present case indicate that the plaintiff as well as his counsel, who presented the plaint on his be-half, were also of the same view and this fact appears to me of great importance. Admittedly, Mt. Durgi had not been authorised by her husband to adopt a son. This fact was known to everybody including the plaintiff. In support of this he questioned the adoption on the ground that Mt, Durgi had not obtained the consent of her nearest reversioners. Paragraph 4 of the plaint, which deals with the point is worded as below:
Parties are governed by Hindu Dharam Shasthras, consequently defendant 1 (Mt. Durgi) had no were to adopt a son without the authority of her deceased husband and without the consent of her nearest reversioners. Adoption is void and invalid as against the plaintiff's right and the plaintiff is not bound by it in any way.
Now, if the plaintiff's position had been that be cause the husband had not given any authority to the widow and the adoption was invalid on this account alone, no reference should have been made to the want of consent of the nearest reversioners. The definite averment contained in para. 4 of the plaint that the widow had No. right to adopt without the reversioner' consent is capable of only one construction, namely, that if consent had been obtained the adoption would have been valid according to the Hindu law which was applicable to the parties. This is how the plaintiff and his legal adviser, who had also signed the plaint understood the Hindu law. The defendants prominently referred to this matter in para. 1, Clause (b) of their preliminary objections. The words of the clause are:
The plaintiff had admitted in para. 4 of the plaint that adoption can be made with the consent of the reversioners but ha his not mentioned the name of the reversioners whose consent was necessary but hid not been obtained The plaintiff is himself minor, consequently, no question of his consent could arise nor ha could be legally adopted.
In para. 6 of the written statements on merits, the defendants while admitting that the parties were governed by Hindu law pleaded that the said law had been modified by custom to some extent and Chhitar Mai, who was the only major person belonging to the family, could permit the widow to adopt and the adoption took place with his consent. In the circumstances, I am of the opinion that no question of special custom arose nor was it necessary by the defendants to prove such a custom. The plaintiff himself admitted in the plaint that according to the Hindu law, which was applicable to the parties', adoption could be made with the consent of the nearest reversioners, even though the husband had not given any authority to the widow, and I have already shown that this was really so.
14. As a last resort the appellant's learned Counsel urged that, as a matter of fact, there had been no consent of the nearest reversioners in the present case. As I have already pointed out, this question was not raised before the learned Single Judge and I see no reason why it should be allowed to be raised before us. Moreover, there does not appear to be substance in the contention. Both sides are agreed that at the time the adoption was made, Manohar Lai plaintiff and Chhitar Mal, father of Ram Sewak, were the only collaterals of Amar Chand. The plaintiff was minor and, accordingly, he was not in a position to give any consent. This left us only with Chhitar Mai and it is not denied that the adoption took place with his consent.
15. The result, in my opinion, is that the appeal must stand dismissed. In view, however, of the difficult nature of the question involved and the peculiar circumstances of the case, I would direct that the parties be left to bear their own costs throughout.
15. I entirely agree and wish to add that in the Punjab a widow has always been allowed to adopt with the consent of her husband's kindred and the rule laid down by the author of Vir Mitrodaya and held by their Lordships of the Privy Council as applicable to Dravada Community prevails in this Province as well. The, strict rule of the Benares School as enunciated by Nanda Pandit though adopted in Bengal and U.P. has, so far as I know, been seldom followed if ever in this Province and there is no occasion to depart from this practice on the ground that in the neighbouring Province that rule is being followed. In short in this Province the authority on widow adoption is Virmitrodaya which is a high authority in the Benares School itself and hence adoptions by Hindu widows with consent of husband's kindred are permitted if the authority of the husband does not exist.