1. That the late Narasinga Rau's widow Seshammal did in fact adopt the respondent as the son of her husband, was practically admitted on behalf of the appellants, the first of whom is Narasinga Rau's undivided nephew and the second that of appellant's son, a minor. It was, however, contended on their behalf that Narasinga Rau did not authorise Seshammal to make the adoption, and even if it is found that he did so authorize her, the adoption is invalid in consequence of the relationship which existed between Narasinga Rau and the natural mother of the rospondent.
2. Now as to the authority, we are satisfied that the evidence on the point adduced on behalf of the respondent fully establishes that a few days before his death, Narasinga Rau gave Seshammal power to take the respondent in adoption. The testimony of the witnesses who speak to this point is highly probable. It is clear that, for several years before Narasinga Rau died, both he and Seshammal had been on unfriendly terms with the first appellant. It appears also that since the time the male child which Seshammal bore to Narasinga Rau died about the year 1888, the latter had been desirous of adopting a son. Narasinga Rau's letter, Exhibit Q, the genuineness of which there is no reason to doubt, furnishes cogent evidence of Narasinga Rau's anxiety to secure a boy for adoption. and Anr. strong circumstance in favour of the view that Narasinga Rau had empowered his wife to adopt is the first appellant's omission to impeach the authority when, not long after Narasinga Rau's death, it was sot up in an enquiry before the Tahsildar with reference to the mutation of names in the registry relating to the lands in litigation. Though the first appellant's attention was pointedly drawn to the contents of Exhibit B, a deposition given by the natural father of the respondent, bofore the Tahsildar wherein it was distinctly asserted that Narasinga Rau had authorised Seshammal to adopt a son; the first appellant took no exception to that assertion, though if the evidence now adduced on his behalf were true, he must have known that the claim that Narasinga Rau had given such authority was totally unfounded.
3. We, therefore, concur with the Judge's finding that the authority set up is true.
4. Next as to the validity of the adoption so far as we are able to follow the appellants 'Vakils' arguments on the point, the chief contention was this.
5. The respondent's natural mother, being Seshammal's sister's daughter, could not, under the Hindu law, have been lawfully married to Narasinga Rau, and therefore the respondent could not have been validly adopted as his son. It being the settled law of this Court, except where there is evidence of special usage to the contrary, that the natural mother of the boy to be adopted, should be a person, who, in her maiden state, might lawfully have been married to the man for whom the adoption is to be made, the question for determination is whether a, Hindu is, by law, precluded, as the appellants contend, from marrying his wife's sister's daughter, in support of this contention we were not referred to any text either in the smrithis or in the leading commentaries. The only text, to which our attention was drawn on behalf of the appellants, is to be found in Aswalayana's ' Grihya Parisishta' which runs thus: ' Viruddha Sambandha is that sambandhi (relation) which is viruddha (contrary or improper) owing to the relationship (existing) between the bride and the bridegroom (before their marriage) being similar to that of a father or mother. As for instance the daughter of a wife's sister (and) the sister of the paternal uncle's wife.' (Mandlik's ' Hindu Law,' p. 484.) A glance at the numerous rules, laid down by the ancient Hindu legislators with reference to the selection of a bride, is enough to show that they are, with very fow exceptions, mere rules of caution and advice. Now does the passage, rolied on by the appellant, belong to this class of hortatory texts, or does it lay down a rule of law rendering a marriage contrary to it unlawful? That it belongs to the former class is evident from the fact that none of the well-known authoritative commentaries prohibit the marriage of a wife's sister's daughter a fact which by itself is sufficient to render it to [sic] the duty of the Courts to decline to accept the text in question as laying down an imperative rule. Nor is authority wanting to supprort this view. In Kulluka Bhatta's remarks on Manu III, 6 to 11, referring to the numerous minor objections to be avoided in selecting a bride, the commentator in terms points out that a violation of none of the rules contained in them affects the legality of the union. (Gurudass Bannerjee's 'Marriage and Stridhanam,' p. 56.) But in his comments on verse 5 of the same chapter, which deals with the really forbiddon marriages between Sagotras and Sapindas, he observes thus: 'In the matter of marriage, as it has been ordained in this text, 'He who inadvertently marries a girl sprung from the same original stock with himself (Sagotra) and so forth must support her as a mother' and as it has been said (by cortain legislators) that if girls of the same gotra and so forth be taken in marriage they must be deserted and that penance must be performed if a marriage be contracted with a girl of the same gotra, consequently together with those, the girls related as mother's sapindas do not also become wives.' ('Vyavastha Chandrika,' Vol, II, p. 475.) These observations clearly lead to the inference that marriages are to be held to be unlawful only in cases, as to which desertion of the girl and the observance of penance for atoning the offence committed in entering into the prohibited alliance are laid down by accepted authorities. But it is not pretended that any authority prescribes that if a man marrios his wife's sister's daughter be must abandon her and perform penance. Further, nearly all the recent important text-writers, who have considered the matter, are agreed that a marriage between a man and his wife's nieco is valid.
6. Dr. Gurudass Barmerjee in his work on 'Marriage and Stridhanam' already cited, states that the law 'does not prohibit marriage with the wife's sister or even with her niece or her aunt' (p. 69). Syama Charn Sircar in the note to Vyavastha, 712 of the 'Vyavastha Chandrika' wherein he states the substance of the authorities as to void marriages excludes from that category unions such as those described by him in Vyavastha, 698, inclusive of that between a man and his wife's sister's daughter (Vol. II, pp. 475 and 463. Mr. Mandlik in his edition of 'Vyavahara Mayuka and Yajnavalkya' observes: 'As regards Viruddha Sambandha they are permitted as a matter of course.' (Appendix, p. 415.) Golap Chunder Sircar in his work on 'The Hindu Law of Adoption' expresses himself thus: 'But be it specially noticed that no marriage is invalid on the ground of relationship being incongruous. In addition to the two instances mentioned in 'Ghrihya Parisishtha of Aswalayana there are other passages prohibiting on the self-same ground the marriage by a man of his step-mother's sister, her brother's daughter and his children's daughter as well as the preceptor's daughter; but however improper such marriages may be, they are nevertheless valid. Such marriages are generally contracted by high-class Brahmans of Bengal who are compelled by the restrictions imposed by kulinism to choose thair wives from a certain limited number of families.' (p. 319.) Lastly Jogendra Nath Bhattacharya expresses substantially the same view in his commentaries on Hindu Law. He writes 'A text of Baudhayana and a passage from 'Grihya Parisishta' are cited in the Nirnaya Sindhu which excludes the following:
(1) Stop-mother's sister and sister's daughter.
(2) Paternal uncle's wife's sister.
(3) Paternal uncle's wife's sister's daughter.
(4) Wife's sister's daughter.
The texts which exclude these are neither cited nor commented upon by Raghunandhana. In practice no hesitation is felt in this part of India in marrying paternal uncles wife's sister. Marriage with step- mother's sister takes place sometimes in Bengal. Instances of marriages with wife's sister's daughter are also not altogether unknown in Bengal, though Hindu sentiment is very strong against these marriages. (2nd edition, p. 95.)
7. With reference to this concluding observation of Mr. Bhattacharya regarding the sentiments of the people as to the propriety of such marriages, it may perhaps be pointed out that there is little to indicate that these marriages are disapproved of by the members of any Section of the community in this part of India. Be this however as it may, the unimpeachable evidence, adduced on behalf of the respondent, shows beyond the shadow of a doubt that marriages between a man and his wife's sister's daughter are common among the various Sections of the Brahmin community and are regarded by all as perfectly valid. It is necessary to refer to this evidence briefly. The specific instances of marriages spoken to by the witnesses took place in various parts of the Presidency widely separated from each other, viz., the following eight districts: Nellore, Madras, North Arcot, South Arcot, Tanjore, Trichinopoly, Coimbatore and Madura. The Honourable Mr. N, Subba Rao belonging to the Madhwa sect, a Vakil of this Court, stated that his own mother's sister was married to a person who had previously married that lady's maternal aunt. The witness also stated that his paternal grandfather, after the first wife's death, married that wife's sister's daughter and that the marriages, spoken to by him, took place long ago. These cases probably belong to the Nellore district. Mr. V.C. Desikachariar, an Ayyangar and a practitioner of this Court, residing in Madras, stated that his mother-in-law, who is his father-in-lavw's second wife, is the daughter of her husband's first wife's sister. The witness added that the late Mr. V. Sadagopacharlu, who was a very distinguished Vakil of this Court, had married the sister of his (Sadagopacharlu's) paternal uncle's wife and this took place long ago. Krishnaswami Ayyar a Smartha Brahmin of Chittoor in North Arcot, deposed that his father married about twenty-five years Ago, AS his second wife, the witness's aunt who was the sister of the witness's mother. Ramachandra Ayyar, a Smartha Brahmin of Chidambaram in South Arcot stated that his fourth and present wife is the daughter of his deceased third wife's sister and that the marriage took place in 1888. Ramakrishna Dikshathar, another Smartha Brahmin also from South Arcot, said his second wife is his first wife's sister's daughter and that he was married thirteen years ago. Mr. Govinda Rao, who is of the Madhwa sect and who is employed as Cirkil under the Collector of Tanjore,stated that he is married to his deceased wife's sister's daughter. P. Srinivasa chariar, an Ayyangar, also belonging to the same district, stated that he had married the sister of Dewan Bahadur Srinivasa Raghava Ayyangar, the present Dewan of Baroda, and that when she died, he, the witness, married her sister's daughter. Mr. Srinivasa Rao, a Madhwa gentleman now in Bangalore, gaveevidence to the effect that on the death of his first wife, the late Raja Sir T. Madhava Rao's daughter, the witness married her sister's daughter. Dewan Bahadur Raghoonatha Rao stated that in addition to two instances already referred to, viz., those of Govinda Rao of Tanjore and Srinivasa Rao of Bangalore who are both related to him, he knew many cases of a man marrying the niece of his wife. Ramachariar, who is a Madhwa too, spoke to having been present at seven or eight such marriages either in the Trichinopoly Coimbatore or Madura district, and added that about 18 or 19 years ago he himself married his deceased wife's sister's daughter. Krishna Rao, the District Munsif of Kulittalai, stated that a sister of his and a daughter of another of his sisters were successively married to the same man in Coimbatore. Nearly all the witnesses affirmed positively that no exception whatever was atany time taken to any of the marriages spoken to by them.
8. On the part of the appellants nothing has been really urged to rebut the irresistible inference arising from such widespread usage as that established by the evidence just noticed, in favour of the validity of the marriages which the text of Aswalayana condemns on the ground of incongruous relationship.
9. We have, therefore, no hesitation in holding that the said text is not mandatory and that the appellant's contention founded thereon is entirely unsustainable,
10. We think we are not precluded from arriving at this conclusion by the reference made to the above text in Minakshi v. Ramanatha I.L.R. Mad. 49. It would seem that on the strength of the statement in the Dattaka Mimamsa that a marriage between the persons mentioned in the text in question was a prohibited connection, it was assumed by the Court that the text was mandatory, But whether the text was mandatory or merely hortatory was not a matter for determination in that suit, and therefore the Court's observations cannot he treated as a binding decision on the point,
11. The only other objection taken to the legality of the adoption rested on the fact that the adoptive mother Seshammal is the cousin of the natural father of the respondent. But this contention also is untenable; since it has been ruled in this Court that the adoption of a son of even a wife's brother is good Sriramulu v. Ramayya I.L.R. 3 Mad. 15. It is scarcely necessary to say that it is immaterial in such a case whether the adoption is made by a man himself or by his widow after his death; for the adoption is for him.
12. We must, therefore, confirm the decree of the District Judge and dismiss the appeal with costs.