Krishnaswami Nayudu, J.
1. The suit out of which this appeal arises related to the properties of one Krishnaswami Iyengar, who died leaving a daughter Kanaga-thammal. Kanagathammal married Doraiswami lycngar. There was no issue of the marriage and the first defendant claimed to be her adopted son, he having been adopted by her husband Doraiswami Iyengar in 1920. The plaintiff claiming to be the reversioner of Krishnaswami lyengar, sought to recover the properties and contested the factum and validity of the adoption of the first defendant. That the adoption did take place both the Courts have found to be true and the validity of the adoption alone is sought to be attacked in this appeal. The invalidity is based on the rule of prohibition that no one can be adopted whose mother in her maiden state the adopter could not have legally married,the contention being that the first defendant's natural mother Rukmani Animal was within the prohibited degrees of marriage, as Rukmani Animal was Doraiswami Iyengar's paternal grandmother's sister's son's daughter. The parties being Brahmins the rule that a legal marriage should be possible between the adoptive father and the natural mother applied to the present case.
2. After the Full Bench decision in -- 'Minakshi v. Ramanada, 11 Mad 49 (A), and the Privy Council decision in -- 'Bhagwan Singh v. Bhagwan Singh', 21 All 412 (B), the rule derived from the Hindu law texts that there cannot be a valid adoption unless a legal marriage was possible between the natural mother of the boy and the adoptive father has been held to apply to the three regenerate classes among Hindus. But the rule is subject to exceptions, such exceptions being based on custom to the contrary. Even prior to the decision in 11 Mad 49 (A), in -- 'Vayidinada v. Appu' 9 Mad 44 (C), it was held that a custom existed in Southern India, among Brahmins of adopting a sister's son or daughter's son, though a sister or daughter is obviously within the prohibited degrees of marriage. In -- 'Simhadri Raju v. Satyanarayana Pantulu', AIR 1945 Mad 487 (D), the adoption of a hoy whose mother belonged to the same gotra as that of the adoptive father was held to be valid on the strength of custom permitting such an adoption in the community to which the parties there belonged, namely, Kshatriya community. Sir Lionel Leach C. J. observed as follows at p. 489:
'It would, in our opinion, be unjust to enforce the rule where the adoptive father and the natural . mother of the boy arc cousins many times removed, as here, when the prohibition is completely disregarded where there is such near relationship as in the case of the daughter's son, the sister's son and the mother's sister's son.'
While there is authority in 9 Mad 44 (C), for the adoption of a daughter's or sister's son in Southern India among Brahmins, in so far as the mother's sister's son is concerned, the matter did not come up for consideration by Court and was not the subject-matter of a decision. In 21 All 412 (B), the adoption of a mother's sister's son by a Hindu of any of the three regenerate classes was held contrary to law and void equally with the adoption of a daughter's son or a sister's son. In that case there was no suggestion of a special custom and the Judicial Committee observed that the rule was subject to any of the special customs, which might be pleaded and must be proved by evidence of what actually was done. But it was found that there was no such special plea in that case.
3. Whatever may be the position as regards a mother's sister's son, the custom that has been found to exist among the Brahmin community to permit the adoption of a daughter's son has been extended to the case of a brother's daughter's son in -- 'Appayya Bhattar v. Vengu Bhattar', 15 MLJ 211 (E), where Subrahamania Ayyar and Benson JJ. referring to the decision in 9 Mad 44 (C), pointed out that though the decision in that case related to the validity of the adoption of a daughter's or sister's son, yet the case actually before the Court was that of a brother's daughter's son, and observed :
'We must take it that the Court considered that if the adoption of a daughter's or a sister's son was valid, the adoption of a brother's daughter's son must be equally, or 'a fortiori', valid as the 'relationship in the latter case was more remote than in the former.'
The relationship of the natural mother of the first defendant to the adoptive father is furtherremote than in the case of 'brother's daughter's son. The first defendant's mother Rukmani Animal will, in common parlance, be said to be related to Dorai-swami Iyengar as cousin sister, not first cousins, but two degrees remote, as Rukmani Animal is not sister's daughter, but Doraiswami Iyengar's grandmother's sister's grand daughter. If a sister's son's adoption has been held to be permitted by custom and is not prohibited under law, the adoption of a distant cousin's sister's son, as in the present case, must, to use the language of the learned Judges in 15 Mad LJ 211 (EX be 'a fortiori' valid, as the relationship in the present case is more remote than in the former. Though the rule based on the prohibition of the marriage of the natural mother with the adoptive father must now be held to have been established beyond controversy by reason of the pronouncement of the Full Bench or this court, which binds me, and its approval by the Judicial Committee in 21 All 412 (B), the reason behind the prohibition still requires to be considered.
The subject has been discussed in Mayne's Hindu Law, 11th Edn. at pages 230 and 231. Mr. V. N. Mandlik in his book on 'Hindu Law, Mayukha and Yajnavalkya' published in 1880 deals with the texts bearing on the subject and the opinions of text writers and Judges at pages 478 to 495, with great learning. He is of the opinion that the doctrine that the adopting mother must be such as could have been married by the natural father o the adopted has not been entirely supported by authority and in any event contradicted by the immemorial custom of the people of the Madras Presidency. The rule as laid down by Mr. Sutherland in 1821 was that,
'The first and fundamental principle is that the person to be adopted be one who by a legal marriage with his mother might have been the legitimate son of the adopter.'
This rule has been subsequently accepted as correct by Sir Francis W. Macnaughten, Sir Thomas Strange and J. D. Mayne and others. The authorities relied on by Mr. Sutherland in support of the above proposition are the Dattaka Mimamsa, Section V, para 16, and the Dattaka Chandrika, Section II para 8, those passages being comments of Nanda Pandita and Kubera on the words (sic)aring the resemblance of a son) occurring in the text of Saunaka cited in the Mayukha.
These words have been interpreted so as to extend the meaning of the resemblance or reflection of a son to one of fitness to be produced by self through Niyoga, etc. Mr. Mandalik, in dealing with the customary law applicable to Hindus, has shown that the interpretation of the text of Saunaka has been extended without warrant and that there is no authority for construing 'Putra-Chhayavaham' in the manner in which Nanda Pandita and Kubera have done.
Notwithstanding the prohibition, assuming that it is derived from the texts, the customary law has so far established the permissibility of the adoption of a sister's son or daughter's son, though a sister and daughter stand in a prohibited relationship. Such adoptions being common even among the three higher classes, no taint attaches on account of the relationship and in so far as the higher classes in Southern India are concerned, the prohibition has practically ceased to have any effect. In the present case, the relationship being far removed, there is no reason why the doctrine laying the prohibition of such adoption should be applied.
4. In the result, the appeal is dismissed withcosts. No leave.