1. This is an appeal against a judgment of our brother Kumaraswami Sastri, J. He decreed the plaintiff's suit holding that the adoption of the first defendant was invalid on the ground that he had been married at the time of the adoption. Unless the appellant (1st defendant) successfully challenges this conclusion, the other points in the case do not arise. It is admitted that the parties are Sudras.
2. Apart from Sanskrit texts, the earliest opinion available in Madras is the case No. 18 of 1814 in Vol. 1 of the Select Decrees of the Sadr Adaulat, p. 101. The pundits' answer at p.106 runs thus :'Sudras may be adopted till the sixteenth year. But as it is a rule that a married boy cannot be adopted it must be understood that an unmarried boy may be adopted till he has attained the age of sixteen. These are the rules for the Sudras caste. Thus it is declared in the Dutta Mlmamsa, Dutta Chandrika and other Sastras.' The point did not arise in the case.
3. The point was actually decided in another case in the same volume at p. 406 Venkatachella Reddiyar v. Moodoo Venkatachella Reddiyar. The pundit stated that the adoption was invalid (p. 410) and the Court of Sadr Adaulat held (p. 412) that the adoption of the appellant after his marriage was ' illegal and void under the rules and restrictions of Hindu Law.'
4. We have next the statement of Sir T. Strange in his Hindu Law (Vol. 1, page 91) : 'Accordingly, in a case referred to in a subsequent page (p. 96, case of Raja Nobkissen) the pundits stated an assumption of the string in the higher classes and marriage in the fourth as obstacles to adoption.' After referring to the possibility of annulment of ceremonies already performed in the natural family, he says, 'upon these principles it would seem, as if there could be no adoption of one who is married; marriage not being capable, like tonsure and investiture, of annulment.'
5. In the judgments of Sadr Court, 1861, at p. 147, Vira Kumara Servai v. Gopalu Servai (Sp. A. 3 of 1861 cited at p. 1066 of west and Buhler's Hindu Law,3rd Ed) the same point arose and the District Munsif held the adoption to be illegal at the time thereof the plaintiff was a married man. Though the case went up on appeal and second appeal, the plaintiff did not challenge the District Munsif's ruling and in second appeal, the District Munsif's decision was restored.
6. In Ayyavu Moopanar v. Niladatchi Amimal (1862) 1 MHCR 45 the plaintiff succeeded as adopted son on the ground that, in a previous litigation his adoption was recognized (rightly or wrongly) and he got a decree for maintenance against his adoptive father on the footing of a validly adopted son. The matter in the second litigation was res judicata between the plaintiff and his adoptive father. It appears that the pundits (in the first case) declared against its validity (p. 47) but the Registrar who gave the decree in appeal thought that the parties were of a class not strictly bound by the requirements of the Hindu Law. There was an appeal to the Privy Council but the matter was compromised and the appeal withdrawn. One of the terms of the compromise was that a daughter of the alleged adopted son should be married to a natural son of the adoptive father. In a later litigation, this marriage was attacked on the ground that it was invalid. The High Court in Vythilinga v. Fijayathammal ILR (1882) M 43 held that the adoption was invalid (the question of the validity of the adoption not being res judicata) and that the marriage was valid. Turner C.J., and Muthuswami Aiyar, J., said : 'It would certainly be invalid under the Dattaka Chandrika, which declares that marriage concludes the period within which a Sudra may be adopted.'
7. In Pichuvayyan v. Subbayyan ILR (1889) M 128., all the above authorities were reviewed and the adoption of a boy after his marriage was held to be invalid. It is true that the parties were not Sudras but the reasoning was general and applied to all Hindus. The respondent in it attempted to support the adoption by arguing from ve,eraraghava v. Ramalinga ILR (1885) M 148. that, as the parties were of the same gothra, marriage is no obstacle. This argument was repelled. The Judge said : ' There is no colour for the argument that this decision abrogated the rule according to which the previous marriage of the child is an obstacle to his adoption. There is, as we have shown, distinct authority for the rule and the recognition of it is in no way inconsistent with the decision regarding the ceremony of Upanayanam. It must be borne in mind that a valid adoption pre-supposes a gift by the father or mother, and they have no power under the Hindu Law to give the daughter-in-law or their son's wife in adoption.' The learned Vakil for the respondent argues that, so far as the latter reason is concerned, the adoption of a childless widower would be valid. In the present case, the appellant was not a widower at the time of the adoption. In Janakiram Pillai v. Venkiah Chetty (1911) 10M LT 21 the question was whether Gopalakrishna Pillai was validly adopted. The Court observed that there was no reliable evidence of an adoption before marriage and any adoption after marriage was invalid.
8. The authorities in Allahabad have been referred to by our learned brother and need not be repeated. The learned vakil for the appellant draws our attention to a quotation by Mahmud, J. in Ganga Sahai v. Lekhraj Singh ILR (1886) A 253 from Dr. Jolly who says : 'The Dattaka Tilaka does not consider marriage even as a bar to adoption, in case the person to be adopted belongs to the same gotra as the adopter. The Dattaka siddhantarnanjari declares that it is not lawful to adopt a married man.' But the Dattaka Tilaka has never been used in Southern India. I doubt if its existence is Known among the people and it does not appear that it has been followed in this respect in Allahabad or Bengal.
9. The most important argument of the vakil for the appellant is that most of the authorities against him are based on the Dattaka Chandrika and that the reasoning of the Dattaka Chandrika is not sound. There is no doubt as to the opinion of the author of the Dattaka Chandrika in ver. 29 of Section 11. It is true that the preceding reasoning from ver. 23 relates to the question whether the performance of tonsure operates asian obstacle. Mr. Sarkar in his Hindu Law of Adoption is of opinion that the conclusion of the Dattaka Chandrika rests on slender foundation. This may be so but we have to recognise the fact that, whatever its reasons may be, and whoever its author may be, the work was recognised as an authority in all the provinces outside Bombay. I need only refer to the latest decision of the Privy Council recognizing its authority, Arumilli Perrazu v. Subbarayudu ILR (1921) M 656 : 41 MLJ 33
10. Above all, it must be recognised that the rule has been acted upon for more than a century and it is too late to question it. The opposite rule in Bombay is based on the special authority of the Mayuka and cannot help us.
11. The decision of the learned judge is right and the appeal is dismissed with costs.
12. The Receiver will be allowed to make his costs from the estate in the first instance.
13. I agree, it has been contended before us for appellant that the passages of the Dattaka Chandrika on -which is based, so far as that work is concerned, the doctrine that a married Sudra cannot be adopted have been misunderstood. But at the least it cannot be denied that it is possible to interpret terms (verses 29 and 32) of Section 11 of the Dattaka Chandrika taken together as stated by implication that in the author's opinion the adoption of a married Sudra is not permissible. That interpretation, it appears, has been accepted and acted upon in this Presidency for more than a century,; and there does not appear to us any reported case in which it has been decided finally that the adoption of a married Sudra is possible. That being so, I do not think that we are at liberty to re-open the question.