1. The question which arises for determination in this appeal is whether respondent's adoption can be upheld. Both the Courts below have found that the adoption is proved, and that Manjamma had her husband's permission to make the adoption. These findings of fact, we must accept in second appeal.
2. As regards appellant's contention that Manjamma was under pollution when she adopted respondent, the Subordinate Judge has found that, when the pollution was over, the datta homam was performed, and the defect was cured. As to this, it is urged by appellant's pleader that, unless the gift and acceptance and the datta homam take place at the same time, there can be no valid adoption. To this contention, however, we are unable to accede. The learned pleader overlooks the fact that during the ceremony a formal gift and acceptance are repeated and they are then consecrated by sacrifice by fire or homam. If, therefore, the first gift was invalid as a religious act, because there was pollution, the second was perfectly valid. Pollution is only a bar to a religious act and renders religious ceremonies inefficacious, but a gift and an acceptance are secular acts and they may therefore be supplemented by datta homam after the expiration of the period of pollution. It was held in Venkata v. Subhadra I.L.R. 7 Mad. 548 that a datta homam performed subsequent to the gift and acceptance validates the adoption,
3. It is then said that the plaintiff's natural father was absent when the datta homam was performed, and that his absence invalidated the ceremony. It must here be observed that it was Manjamma who received respondent in adoption, and it was some male proxy on her behalf that should perform the ceremony according to Hindu usage. Such being the case, the absence of plaintiff's natural father is immaterial. Respondent's mother was present on the occasion and made the gift with her husband's consent, and a gift so made by a wife is as valid as if her husband was present.
4. The next contention urged on appellant's behalf is that Manjamma's father and respondent's natural father being of the same gotram, no legal marriage was possible between the former in her maiden state and the latter, and consequently, the adoption was invalid. The Courts below have overruled this objection, on the ground that marriage is forbidden only among sapindas but not among sagotras. This view is no doubt at variance with the Hindu Law as explained by this Court in Minakshi v. Ramanada I.L.R. 11 Mad. 49 But the parties in this case are Saraswati Brahmans, and one instance is mentioned by the Subordinate Judge of a marriage between persons of the same gotram. If it were necessary to determine this question for the purposes of this appeal, we should remit for trial an issue, viz., whether among Saraswati Brahmans in South Canara, marriage is permitted by usage between persons of the same gotram. But having regard to the special circumstances of this case, it appears to us that the adoption should prevail by reason of the doctrine of estoppel. These circumstances are set forth in paragraphs 9 to 16 of the original judgment and in paragraph 7 of the appeal judgment. In Parvatibayamma v. Ramakrishna Rau I.L.R. 18 Mad. 145 this Court discussed the limitation subject to which the doctrine of estoppel is to be applied in the case of invalid adoptions. In the case before us the adoption took place in 1867, a quarter of a century ago, and respondent has ever since been recognized as adopted son. He was aged four or five years when he was adopted and he is now 29 years old. His upanayanam and marriage were performed in the adoptive family, and he is no longer in a position to resume his rights in his natural family. During this long period, respondent performed the shraddhas and other ceremonies in the adoptive family, and a cousin of his adoptive father presided on the occasion of his upanayanam. Thus, the course of conduct of Manjamma and others in the adoptive family was such as to inspire the belief that the communion, which a valid adoption creates and is intended to create, existed. Again, the adoption was made in April 1867, and in the same year Manjamma applied for an heirship certificate on behalf of her minor adopted son. Though appellant and his brothers were then aware of the adoption, they did not then oppose it. It was in 1879 that they instituted Original Suit No. 402 of 1879 on the ground that respondent's father and they were undivided, but this suit failed, as the Appellate Court found that the properties in dispute were the self-acquired properties of Pandit Venkataramanayya. In 1883 appellant's brother brought Original Suit No. 269 of 1883 to set aside the adoption, and it was finally dismissed as barred. Though this suit was brought by one brother only, yet it appears that appellant actively cooperated with him in conducting that suit, and did not join it, in order that he might institute separate legal proceedings if that suit failed. After that suit was dismissed, it appears that appellant gained over some of the tenants and procured attornments from them in collusion. Under these circumstances, we think that the doctrine of estoppel applies, and that appellant must be held not to be at liberty to impugn the adoption at this distance of time.
5. We dismiss this second appeal with costs.