K.S. Menon, J.
1. The plaintiff, as the adopted daughter of one Duggirala Seshachelam, a dancing woman of the prostitute class, sued to recover possession of the plaint properties from defendants 1 to 3 and their tenants defendants 4 and 5, alleging that defendants 1 to 3 were let into possession as her tenants under a oral lease. The trial Court found that the oral lease was not true and that the adoption, though true, was invalid, as it was intended for bringing up the plaintiff as a prostitute. The lower appellate Court agreed with the trial Court in its finding about the oral lease, but held that the adoption was valid as it was made with the object of getting the plaintiff married to the third defendant and gave a decree as sued for; hence this second appeal by defendants 1 to 3.
2. The only question for decision in this second appeal is whether the adoption of the plaintiff is valid. The finding of the lower appellate Court is that Seshachalam adopted the plaintiff for the purpose of marrying her to the third defendant and not with the intention of bringing her up to lead the life of a prostitute. It is argued that this finding is vitiated by the fact of the lower appellate Court not attaching due importance to the statement of the plaintiff in the plaint that she was 25 years old and that, if that age is taken as true, it will have to be held that the Gaj jala Pooja or the dedication to the temple was made during the lifetime of Seshachalam and not after her death and that therefore it would be apparent that the object of the adoption was to bring up the plaintiff to lead the life of a prostitute. The lower appellate Court, after referring to the age given in the plaint and discussing the other evidence on the point, concludes in paragraph 11 of its judgment:
In this state of the evidence 1 prefer to believe the witnesses examined for the plaintiff who say that the girl's Gajjala Pooja took place after her adoptive mother died.
3. In these circumstances we are not prepared to hold that the finding is, in any way, vitiated.
4. The trend of the decisions in this Court is to the effect that the adoption of a daughter by dancing woman of the prostitute class is valid, if the object of the adoption is not to bring her up to lead the life of a prostitute. One of the earliest cases is that of Venku v. Mahalinga I.L.R. (1888) Mad. 393. In delivering the leading judgment in that case, Muttusami Aiyar, J., strongly dissented from the view taken by West, J., in the case of Mathura Naikin v. Esu Naikin I.L.R. (1880) 4 Bom. 545 that such adoptions are invalid and should never be countenanced. Referring to the argument that the adoption of a daughter by a woman of the dancing girl caste should not be held to be valid because it contravenes the provisions of Sections 372 and 373, Indian Penal Code, his Lordship observed as follows:
The act prohibited is the disposition of a minor for the purpose of prostitution, and the reason of the prohibition is the protection of the chastity of girls under, sixteen years of age. Taking it then that the rule of public law embodied in Section 372, controls the private law and is an index of public policy, the further question arises whether it operates to prevent a dancing girl from adopting a daughter altogether, or to prevent her only either from prostituting or from entering into a contract for prostituting the adopted daughter so long as she is under sixteen years of age. Adoption as recognized in Hindu law is allowed partly for continuing the family and partly for securing a person competent according to the custom of the caste to perform the funeral obsequies of the adoptive parents and to take their property. It should not, therefore, in the case of dancing girls be confounded with prostitution which is neither its essential condition nor necessary consequence, but an incident due to social influences. The extent to which the rule of public policy has been given effect to in this Presidency appears to me to indicate the legitimate limits within which we can recognize it as a rule of private law. We may set aside or decline to enforce a contractor disposition which has for its immediate object the prostitution of a minor during her minority so as to leave her no choice of married life when she is over sixteen years. The policy of the Penal Code, as it seems to me, is not to obliterate altogether the line of distinction between the province of ethics and that of law but, to protect the chastity of minors and to assure to them the freedom of choosing married life when they attain their age, whether they are the natural or adopted daughters of dancing women, and to leave otherwise the incidents of their legal status as daughters untouched, whether the parties concerned are dancing women or ordinary Hindus.
5. And as in that case the adoption was made prior to 1861 when the Indian Penal Code, came into force it was held that the dancing girl in question was competent to adopt a daughter. This decision has been the subject of comment in several later decisions. It was followed in Muttukannu v. Paramasami I.L.R. (1889) 12 Mad. 214 where their Lordships (Muttusami Ayiar, and Parker, JJ.) observe at page 218:
We consider therefore, that as a matter of private law it must be taken, the class of dancing women being recognized by Hindu law as a separate class having a legal status, that the usage of that class, in the absence of positive legislation to the contrary, regulates rights of status and of inheritance, adoption and survivorship. Although a rule of public law may supersede that of private law, yet it was pointed out in Venku v. Mahalinga I.L.R. (1888) 11 Mad. 393 that the Indian Penal Code, prohibited only the employment of minors for purpose of prostitution and any disposition which might have such employment for its object.
6. In that case too the adoption was made before the Indian penal Code, came into force. The same view was taken in the case of Queen Empress v. Ramana I.L.R.(1889) 12 Mad. 273 which was a prosecution for an offence under Section 372, Indian Penal Code.
7. In the case of Kamalakshi v. Ramasami Chetti I.L.R. (1895) 19 Mad. 127 Best and Subrahmania Aiyar, JJ., followed the decision in Queen Empress v. Ramana I.L.R. (1895) 19 Mad. 127 and remitted the case for a finding on the question whether the adoption alleged in that case was made with the intertion of prostituting the adopted daughter even while she was a minor, and the Court held that, as the adoption was made with such an intention, it would not confer on the plaintiff in that case the status of an adopted daughter or other civil rights flowing therefrom.
8. The next case is that of Sanjivi v. Jalajakshi I.L.R. (1897) 21 Mad. 229 in which the adoption was made after the Indian Penal Code, came into force and the finding was that it was with the intention of bringing up the adoptee as a prostitute even during her minority. It was held that:
An adoption made as this with such intention after the Indian Penal Code, came into force is illegal, and can give the plaintiff no right to claim the property of Lacha by inheritance.
9. In 1912, however, a dissentient note was struck by Sadasiva Aiyar, J., in the case of Guddati Reddi Obala v. Ganapati Kandanna : (1912)23MLJ493 . Sundara Aiyar, J., who was the other member of the Bench, based his decision on the ground that as the adoption was by a married woman, though belonging to the dancing girl caste, it was invalid. On the question of the validity of adoption by a woman of the prostitute class his Lordship did not express any opinion, but simply said that he should not be taken to have conceded that such adoptions are valid. Sadasiva Aiyar, J., dissented from the view taken in Venku v. Mahalinga I.L.R. (1888) 11 Mad. 393 and approved of the decision in Mathura Naikin v. Esu Naikin I.L.R.(1880) 4 Bom. 545and observed:
I wish to dissent from Venku v. Mahalinga I.L.R. (1888) 11 Mad. 393 on the broad ground that an adoption of a minor girl by a prostitute belonging to a caste which notoriously follows prostitution as a profession after the Penal Code came into force is a criminal act and is on that ground also clearly illegal. I am also clearly of opinion that the authority of Venku v. Mahalinga I.L.R. (1888) 11 Mad. 393 has been reduced to a minimum by the observations of the Privy Council in the case in Ghasiti v. Umrao Jan . Lord Hobhouse at page 156 of the report clearly expresses his approval of the case of Mathura Naikin v. Esu Naikin I.L.R. (1880) 4 Bom. 545 though of course it might be said that His Lordship does not express any definite opiftion as it was unnecessary to do so for the purposes of that case which related to Mahomedan prostitutes.
10. In the case of Visalakshi Ammal v. Dorasinga Pillai (1914) 29 I.C. 974 to which Sadasiva Aiyar, J., was a party, his Lordship reiterated the view taken by him in Guddati Reddi Obala v. Ganapathi Kandanna : (1912)23MLJ493 .
11. But in 1915, when the same question arose for decision in Nagamuthu Pillai v. Dasi SundramX this Court, (Abdur Rahim and Ayling, JJ.) adopted the view taken in the earlier cases and Abdur Rahim, J., observed:
The first point is really covered by a series of authorities of this Court laying down that the adoption of a daughter by a dancing girl is valid in this Presidency if it is not made for the purpose of making the girl a prostitute. We have been referred to certain adverse observations in some judgments of a very general character but the learned pleader who appeared for the appellant admits that the authorities are all against him on that point.
12. On the finding of fact in that case that the adoption was made for the purpose of helping the adoptive mother in the household duties, the adoption was found to be valid.
13. When the question again came up for decision recently in Shanmugam Pillai v. Krishnaveniz Anantakrishna Aiyar, J., after referring to most of the decisions mentioned above, observed:
If there be a custom among dancing girls of adopting a girl and if it be proved that the adoption was not to promote prostitution but to wean the girls away from prostitution and settle them in married life, and that is the finding recorded by the lower Courts, in the present case - then, according to the view of law as laid down in Madras, such an adoption could be valid.
14. It will therefore be seen that, but for the observations of Sadasiva Aiyar, J., in Guddati Reddi Obala v. Ganapathi Kandanna : (1912)23MLJ493 this Court has been consistently holding that, if the adoption is not made for the purpose of promoting prostitution, it is valid.
15. The view of the Bombay High Court, on the other hand, is that adoption of a daughter by a dancing woman of the prostitute class is not valid, because it is invariably meant to promote prostitution and thus opposed to public policy. The earliest case is that of Madura Naikin v. Esu Naikin I.L.R.(1880) 4 Bom. 545 where West, J., expressed very strongly againt the validity of such adoptions. The same view was taken in the cases reported in Hira Naikin v. Radha Naikin I.L.R. (1912) 37 Bom. 116 and also in Girimallappa Channappa v. Kenchava I.L.R. (1912) 37 Bom. 116.
16. It is argued that the view of the Bombay High Court expressed in Mathura Naikin v. Esu Naikin I.L.R.(1880) 4 Bom. 545 has been approved by the Judicial Committee of the Privy Council in the case of Ghasti v. Umrao Jan . But the judgment in that case does not in any way show either that their Lordships of the Judicial Committee approved or disapproved of the view of the Bombay High Court, for all that is said is as follows:
In the case of Hindus great difficulties have been felt by Courts of Justice in admitting the validity of transactions intended for the furtherance of prostitution. See the case of Mathura Naikin v. Esu Naikin I.L.R. (1880) 4 Bom. 545 and the authorities here referred to. And as regards Muhammadans, prostitution is not looked on by their religion or their laws with any more favourable eye than by the Christian religion and laws.
17. There is nothing in this to indicate that the view taken by the Bombay High Court was upheld and that the view of this Court was found to be wrong. We are therefore unable to agree with the opinion of Sadasiva Aiyar, J., in Guddati Reddi Obala v. Ganapathi Kandanna : (1912)23MLJ493 that the authority of Veku v. Mahalinga I.L.R. (1888) 11 Mad. 393 has been reduced to a minimum by the observations of the Privy Council in Ghasti v. Umrao Jani. It is not also accurate to say that:
Lord Hobhouse clearly expressed his approval of the case in Mathura Naikin v. Esu Naikin I.L.R. (1880) 4 Bom. 545.
18. It cannot therefore be said that by reason of the decision of the Judicial Committee the view taken by this Court is no longer the law.
19. As the finding in this case is that the adoption was made with the object of getting the plaintiff married to the third defendant and not for any immoral object, the adoption has to be upheld in view of the trend of decisions in this Court. But the learned Advocate for the appellant has gone further and argued that whatever be the object of the adoption - whether it be for promoting prostitution or whether it be for a perfectly legitimate purpose, such as getting the adoptee married - the adoption of a daughter by a dancing woman of the prostitute class is invalid and does not confer any civil rights on the adopted daughter. His contention is that as in the majority of cases the girl adopted by a dancing woman invariably leads a life of prostitution, the custom of adoption of a daughter by a woman of that caste should never be countenanced by the Courts as it is opposed to public policy. But, as observed by Mutthusami Aiyar, J., in Venku v. Mahalinga I.L.R. (1888) 11 Mad. 393 , referred to above, prostitution is neither an essential condition nor a necessary consequence of such an adoption, but is only an incident due to social influences. Further, it is not, and cannot be, contended that if a girl who is adopted by a dancing-woman subsequently says that she will not lead the life of a prostitute, but would get married if possible, she would lose all her rights, as an adopted daughter. Indeed, in this case, there is evidence that it is customary among dancing women of Mandapata Village to which the parties belong, to adopt girls for the purpose of giving them in marriage to others. It cannot therefore be said that leading a life of prostitution is a condition attached to adoptions of this kind or that the validity of such adoptions depends on the adoptee leading the life of a prostitute. The adoption of a daughter by a dancing woman of the prostiiute class cannot therefore by itself, without anything further being proved, be said to offend public policy. Thus the proposition propounded by the learned Advocate for the appellant put in such wide terms cannot be accepted as sound.
20. It is then argued that, in view of the explanation to Section 373, Indian Penal Code, the presumption is, that all such adoptions are made with the intent that the adopted daughter shall be used for the purpose of prostitution and that therefore it would be against public policy to recognise such an adoption as valid. But the presumption is a rebuttable one, as was pointed out by Sundara Aiyar, J., in Public Prosecutor v. Kannammal : (1913)24MLJ211 Every adoption of this kind cannot therefore be declared invalid. We, therefore, see no reason to depart from the rule laid down by this Court in a series of decisions.
21. Having regard to the finding of fact in this case and the course of decisions in this Court, we hold that the adoption of the plaintiff by Seshachallam is valid and entitles her to the reliefs claimed in the suit.
22. The Second Appeal therefore fails and is dismissed with costs.