Bhagwan Singh v. Bhagwan Singh, minor BS650212
PRIVY COUNCIL

Before:-Lord Hobhouse, Lord Macnaghten, Lord Morris and Sir Richard Couch.

0 D/d. 18, 22.11.1898/ 11.03.1899

Bhagwan Singh - Plaintiffs

Versus

Bhagwan Singh, minor - Defendants

On Appeal from the High Court at Allahabad.

The respondent did not appear.

Solicitor for Appellants : - Ranken Ford, Ford and Chester.

Hindu Law - Adoption - Invalidity of Adoption Mother's Sister's Son.

[Para ]

Held, that the adoption by a Hindu of the twice-born classes of a mother's sister's son is wholly void. The precepts of Hindu authorities condemning it have been decided to be not monitory only put positive prohibitions for such a length of time as to make it incompetent to a Court of Justice to treat the question now as an open one.

Appeal from a decree of the High Court (June 27, 1895) which set aside a decree of the Subordinate Judge of Cawnpore (Sept. 23, 1892), and remanded the case for trial on the merits - that is, of the issue whether in fact the adoption had taken place.

The question decided in this appeal was whether the adoption of the son of the adopter's mother's sister was valid by Hindu law; it being admitted that the question also included the validity of the adoption of a daughter's son and a sister's son.

The Subordinate decreed in favour of the appellants on the ground that the adoption was wholly illegal. He held that the general rule of the Hindu law as "affirmed by a singularly strong series of authorities in all parts of India" directed that amongst the three regenerate classes of Hindus, in the absence of special custom to the contrary, "no one can be adopted whose mother the adopter could not have legally married," and that according to the case of Parbati v. Sundar, (1885) Ind. L.R. 8 Allah. 1, an adopted son of that description is "not capable of doing any good to the souls of the adoptive father and his forefathers - the very object of adoption."

In appeal the question was referred to a Full Bench. Edge C.J., Knox, Blair, and Burkitt JJ. were of opinion that the adoption in question was not shewn to be "prohibited or illegal by the law of Benares School which applies in the these provinces and to the parties." Banerji and Aikman JJ. held "that the adoption propounded by the appellant (i.e., of the first defendant) is contrary to Hindu law, and is not shewn to be sanctioned by any special usage of the caste to which he belongs."

The two principal judgments were those of Edge C.J. and Benerji J., and will be found in a full reports of the case in Ind. L.R. 17 Allah. 294-421.

It will be found that the reasoning of the Chief Justice's judgment proceeds as follows. The plaintiffs, in order to limit the right of adoption as proposed, must prove the limitation alleged, and for that purpose must rely either upon an undoubted sacred text, which, when construed in the manner prescribed by the Mimamsa of Jaimini, enacts the limitation by force of an absolute prohibition, or they must give clear proof of usage to that effect, or they must clearly prove that the views of a commentator (in this case Nanda Pandita) expressed to that effect have been acted on as correct. The rule of construction referred to is stated to be to the effect that id as sacred text is supported by reason assigned, it is recommendatory and of no obligatory force; if not supported by reason it is imperative: see Mandlik's Vyavahara Mayukha, p. 499.

The sacred texts in question are (1) that of Sakala, cited both in the Dattaka Chandrika and the Dattaka Mimamsa, and (2) that of Saunaka, also cited in both treatises. That of Sakala, it is urged, "has never been recognised as genuine by any commentator of authority in the School of Benares." It appears first in the Dattaka Chandrika, and there is no information where its author obtained it. "I cannot resist the conclusion either that no such text existed, or, if it did exist, that it was not considered of any authority." If genuine it is not complete. If complete as cited, no reason being assigned, the prohibition is absolute, but if the original text included a reason it was admonitory only and not prohibitory.

The text of Saunaka consists of two portions. Saunaka, however, did not himself intend either to enact or imply a prohibition; the two portions read together contain an admonition only. His text has been construed as having an absolute effect by Nanda Pandita in his Dattaka Mimamsa, but Nanda Pandita's authority is not to be relied upon, and his construction is fanciful and erroneous, and disregards the Mimamsa of Jaimin. The authority of the two treatises, the Dattaka Chandrika and Dattaka Mimamsa, is denied. Prior to those treatises, there is no authority for the limitation proposed. Neither Menu, nor Vasishtha, nor Yajnyavalkya, nor the Narada Smriti, as recently translated by Professor Jolly, mention it, while yama expressly allows the adoption of a daughter's son. No earlier commentary mentions the prohibition. It is true that eight later Hindu commentaries "follow the lead more or less closely" of those treatises, but they are not authorities of the Benares School.

Agreement is expressed with that eminent Sanskrit scholar, Professor Jolly, that "it is simply a misfortune that so much authority should have been attributed in the Courts all over India to such a treating as Nanda Pandita's Mimamsa." "I am convinced," says the Chief Justice, "that down to 1830 the Dattaka Mimamsa had not been accepted as an authority in the School of Benares. Since 1830 the Mimamsa has occasionally been referred to in the Sudder Dewanny Adawlat of these provinces and in this court on various questions of adoption, but has not been followed when its rules were in conflict with the Mitakshara or with other authoritative works of the Benares School, except in three cases." With regard to Lower Bengal, the Dattaka Mimamsa and the Dattaka Chandrika were not recognised as of authority until after 1810. Neither Jagannatha, nor Sir William Jones, nor Mr. Colebrooke recognised or stated that they recognised the authority of either treatise or of the prohibition in question, when Jagannatha's Digest was being complied and translated by Colebrooke. Reasons are given why it was practically impossible that authority should have escaped attention if generally recognised at the time. The Digest quotes neither Saunaka, Sakala, nor the treatise; Colebrooke, however, in 1810, in his preface to the Mitakshara, referred to the Dattaka Mimamsa as "an excellent treatise on adoption," but is silent as to its authority in the School of Benares, or as to the prohibition in question.

The authority which those treatises subsequently obtained was due to the fact that Mr. Sutherland selected them for translation in 1821, and stated in his preface of 1819 that "the Dattaka Mimamsa is the most celebrated work extant on the Hindu law of adoption." Although he did not state it to be of authority in the School of Benares, yet Sir W. Macnaghten, writing in 1829, described it as of infallible authority in Mithila and Benares. It is pointed out that nothing had happened in the meantime (1819-1829) to account for this supposed growth of authority in the interval. The earliest reported case in which the Dattaka Mimamsa was cited was in 1809. Two cases before 1815, namely, Case XII. Macn. H.L. p. 185, and Morley's Digest, Vol. 1, No. 58, disregarded the prohibition. The authority of that treatise cannot be regarded as established merely because certain unknown pundits had cited it, or because eight native commentaries had followed its lead more or less closely.

Assuming Nanda Pandita's authority, it was only that of a commentator, whose construction of a cited text is erroneous. He was led to that misconstruction by mixing up the ideas of Niyoga and adoption, while Mr. Sutherland went further and confounded marriage and adoption, his synopsis being in reality the source of the prohibition.

As regards the acceptance of Nanda Pandita's views, both in Madras and Bombay, customs have been upheld validating the adoption in question. Mr. Mandlik and Golap Chandra Sarkar have stated that such adoptions are not uncommon in Bombay and Bengal and have never been contradicted. A custom to the contrary was upheld in Madras amongst the Nambadri Brahmans, and in Southern India amongst Brahmans; and such custom to the contrary also prevails in the Punjab.

English judges in Bengal adopted this prohibition in Bengal between 1815 and 1824, and it may have been accepted generally in Bengal. But there is no evidence that it was adopted in these provinces in or prior to 1830. The cases are referred to with the result that "it would be judicially rash to hold except upon clear evidence that the prohibitions of Nanda Pandita and Mr. Sutherland have been accepted as binding by any of the three regenerate classes of Hindus of these provinces." The Madras and Bombay cases relate to schools of Hindu law in other districts, and shew that the prohibitions were accepted "not by the people of those schools and districts, but by the High Court judges" on their behalf and contrary to their wishes. Whenever the Madras Court permitted the parties to call evidence the result was to prove non-acceptance of the prohibition contained in the two treatises.

He concluded that there was "no proof, clear or otherwise, that the prohibitions of Nanda Pandita and Mr. Sutherland against such adoptions have ever been received by the Benares School of Hindu Law and sanctioned by usage in these provinces." "Further, it has not been shewn that any text of the Hindu law of the Benares School contains any such prohibition."

Cowell, for the appellant, contended that the prohibition in question had been uniformly enforced in the absence of proved custom to the contrary by all the Civil Courts in India since 1815, with the subsequent sanction of the Judicial Committee. Those cases were as follows : Doe d. Kora Shunkho Takoor v. Bebee Munnee, (1815) 1 Morley's Dig. No. 59, decided in Bengal; then, in the North West, Shib Lal v. Bishumber, (1866) S. D. A. Dec. N.W. P. 25; Battas Kuar v. Lachman Singh, (1875) 7 N.W.P.H.C. 117; Parbati v. Sundar, Ind. L.R. 8 Allah. 1. The only cases to the contrary were Ramchunder Chatterjea v. Sumbhoo Chunder Chatterjea, (1810) 1 Morley's Dig. No. 58, p. 18, the doctrine laid down in which was shortly afterwards overruled : see Sir F. Macn. Cons. H.L. pp. 166, 168; second in 1808, case No. 12 in Sir W. Macn. 2 H.L. 185, generally regarded as a case of Sudras; third in 1837, Chowdhree Purmessur Dutt Jha v. Hunooman Dutt Ray, (1837) 1 Morley's Dig. No. 61,p. 19, a case of an adoption of a sister's son in the Kritzima form.

In Madras the cases are Narasammal v. Bala Rama Charlu, (1863) 1 Madr. H. C. 420; Jivani Bhai v. Jivu Bhai, (1865) 2 Madr. H.C. 462; Gopalayyan v. Raghupatia Ayyon, (1869) 7 Madr. H.C. 250; Minakshi v. Ramanada, (1886) Ind. L. R. 11 Mad. 49, a Full Bench decision. The cases of Vishnu v. Krishnan, (1883) Ind. L. R. 7 Mad. 3 and Vayidinada v. Appu, (1885) Ind. L. R. 9 Mad. 44, were decided on the ground of a special custom in favour of such adoption. The Bombay cases were Haebut Rao Mankur v. Gobind Rao Mankur, (1821) 2 Borrodaile's Rep. 106; Gopal Narhar Safray v. Hanmant Ganesh Safray, (1879) Ind. L.R. 3 Bomb. 273; Bhargirthi Bai v. Radha Bai, (1879) Ind.L.R. 3 Bomb. 298. Then there was the Full Bench decision in Waman Raghupati Bova v. Krishnaji Kashiraj Bova, (1889) Ind. L.R. 14 Bomb. 249. With regard to the Calcutta decisions, Rajendro Narain Lahoree v. Saroda Soonduree Dabee, (1871) 15 Suth. W.R. 548 and Uma Bunker Moitro v. Kali Komul Mozumder, (1880) Ind. L. R. 6 Calc. 256, were referred to to shew the high authority accorded to the two Mimamsas. There was no actual decision by the Privy Council; an emphatic obiter dictum is to be found in Sundar v. Parbati, (1889) L.R. 16 Ind. Ap. 186, and the point is treated as a settled one in Lala Narain Das v. Lala Ramanuj Dayal, (1897) L.R. 25 Ind. Ap. 46, 52. In Ramalinga Pillai v. Sadasiva Pillai, (1864) 9 Moore's Ind. Ap. Ca. 506, the adoption had been admitted, and was, moreover, amongst Sudras, and not amongst Vaisyas, as stated in the report: see Jivani Bhai v. Jiva Bhai, (1865) 2 Madr. H.C. 462.

Assuming the question to be nevertheless an open one, the whole question turned upon the effect of Dattaka Mimamsa, sect. 2, para. 2, 74, 91-94, 107, 108, and sect. 5, para. 16-20; and of Dattaka Chandrika, sect. I. vv. 11, 17, sect. II. 7, 8. For the authority of Sakala there cited, see Mandlik, pp. 8, 13, 15; West and Biihler, p. 28; of Saunaka, see Menu, c. III. v. 16 ; of both see Ooman Dutt v. Kunhia Singh, (1822) 3 Sel. 144, 150. Sakala's text is conclusive on the strictest application of Jaimini's rule ; no reason is given for the suggestion that it is forged or incomplete, and still less that the passage omitted contained a reason, and therefore that the text was not prohibitive. Saunaka's text is not shewn to have been misconstrued by the authors of the Mimamsas, whose construction moreover is final, and not to be reviewed by English Courts. The only authority suggested to the contrary is that of Yama, whose alleged text (casually mentioned without specific reference in 2 Borr. 87) has not been cited by any commentator or shewn to have been adopted by any school of Hindu law. It is not alleged by Mandlik or any one else to be in the Yama Smriti or Sanhita, or Yama dharma sastra. The Sarasvativilasa, a work of authority in the Carnataca, not in Bombay as stated by Banerji (ed. 1881, translation by Foulkes), does not contain it, and the account given of it by Mandlik, p. 483, and G.C. Sirkar, Tagore Lect. 1888, p. 334, is not to be relied on. Eight native treatises were produced in the Court below of a date later than the two Mimamsas (see Jolly's Lectures), and support the prohibition. With regard to the authority to be attributed to the two Mimamsas, there is a general consensus in its favour; both Macnaghtens, Strange, Colebrooke, Sutherland, and the native judges, but see especially Collector of Madura v. Mootoo Ramalinga Sathupathi, (1868) 12 Moore's Ind. Ap. Ca. 397, 437, and Rungama v. Atchama, (1846) 4 Moore's Ind. Ap. Ca. 397, 437.

Cases Referred :-

Battas Kuar v. Lachman Singh, (1875) 7 N.W.P.H.C. 117.

Bhargirthi Bai v. Radha Bai, (1879) Ind.L.R. 3 Bomb. 298.

Chowdhree Purmessur Dutt Jha v. Hunooman Dutt Ray, (1837) 1 Morley's Dig. No. 61,p. 19.

Collector of Madura v. Mootoo Ramalinga Sathupathi, (1868) 12 Moore's Ind. Ap. Ca. 397, 437.

Doe d. Kora Shunkho Takoor v. Bebee Munnee, (1815) 1 Morley's Dig. No. 59.

Ganpatra Vireshvar v. Vithoda Khandappa, (1867) 4 Bom. H.C. Rep., 130.

Gopal Narhar Safray v. Hanmant Ganesh Safray, (1879) Ind. L.R. 3 Bomb. 273.

Gopalayyan v. Raghupatia Ayyon, (1869) 7 Madr. H.C. 250.

Haebut Rao Mankur v. Gobind Rao Mankur, (1821) 2 Borrodaile's Rep. 106.

Jivani Bhai v. Jiva Bhai, (1865) 2 Madr. H.C. 462.

Lala Narain Das v. Lala Ramanuj Dayal, (1897) L.R. 25 Ind. Ap. 46, 52.

Minakshi v. Ramanada, (1886) Ind. L. R. 11 Mad. 49.

Narasammal v. Bala Rama Charlu, (1863) 1 Madr. H. C. 420.

Ooman Dutt v. Kunhia Singh, (1822) 3 Sel. 144, 150.

Parbati v. Sundar, (1885) Ind. L.R. 8 Allah. 1.

Rajendro Narain Lahoree v. Saroda Soonduree Dabee, (1871) 15 Suth. W.R. 548.

Ramalinga Pillai v. Sadasiva Pillai, (1864) 9 Moore's Ind. Ap. Ca. 506.

Ramchunder Chatterjea v. Sumbhoo Chunder Chatterjea, (1810) 1 Morley's Dig. No. 58, p. 18.

Rungama v. Atchama, (1846) 4 Moore's Ind. Ap. Ca. 1.

Shib Lal v. Bishumber, (1866) S. D. A. Dec. N.W. P. 25.

Sundar v. Parbati, (1889) L.R. 16 Ind. Ap. 186.

Uma Bunker Moitro v. Kali Komul Mozumder, (1880) Ind. L. R. 6 Calc. 256.

Vayidinada v. Appu, (1885) Ind. L. R. 9 Mad. 44.

Vishnu v. Krishnan, (1883) Ind. L. R. 7 Mad. 3.

Waman Raghupati Bova v. Krishnaji Kashiraj Bova, (1889) Ind. L.R. 14 Bomb. 249.

JUDGMENT

The judgment of their Lordships was delivered by

1899 March 11

Lord Hobhouse : - There are no facts in dispute in this case. The plaintiffs now appellants brought the suit to establish their title as reversionary heirs of Madho Singh as against the first defendant, a boy who was adopted by him in the dattaka form. The boy is the natural son of Madho's mother's sister. The sole question is whether the adoption of such a relation is allowed by Hindu law. The Subordinate Judge held that it is not allowed. A Full Bench of six Judges of the High Court has decided that it is allowed. Four Judges, viz., Chief Justice Edge, and Justices Knox, Blair and Burkitt being of that opinion against Justices Banerji and Aikman who are of the contrary opinion. Their Lordships are under the disadvantage of hearing the case without any help from the respondents who have not appeared. But this disadvantage is much lessened by the elaborate fulness of the reasons assigned by Chief Justice Edge for the conclusion which he reached in favour of the respondent.

The question is of the same nature as that which has just been disposed of in the preceding cases from Madras and Allahabad. But it depends upon a different set of texts and the course of decision in India has been very different. It is agreed on all hands that the prohibition contended for extends only to the three twice-born classes, and not to the most numerous class of all, the Sudras. The parties here are Kshatriyas governed by the Benares school of law. It is also agreed that, as regards capability to be adopted, the sons of sisters, sons of daughters, and sons of maternal aunts, stand on the same footing, and that the authorities which apply to any of these classes apply to all.

The oldest original texts bearing on the point are contained in the Dattaka Chandrika. In section I, para, 11 of that work the author quotes the ancient sage Sakala to the following effect. After mentioning certain relatives to whom preference should be given in adoption among the regenerate tribes, he says:--"If such exist not, let him adopt one born in another family, except a daughter's son and a sister's son and the son of the mother's sister."

In para. 17 of the same section the same work quotes the sage Saunaka who, after pointing out from what classes adoptions should be made, says: "But a daughter's son and a sister's son are affiliated by Sudras. For the three superior tribes a sister's son is nowhere mentioned as a son."

In Section II, paras 7 and 8, after quoting from Saunaka the expression that the adopted boy should bear the reflection of a son, the author adds:--"The resemblance of a son, or in other words the capability to have been begotten by the adopter, through appointment and so forth."

Nanda Pandifa, the author of the Dattaka Mimamsa, writing in the early part of the 17th century, some centuries later than the conjectured date of the Dattaka Chaudrika, gives the same quotations from Sakala and Saunaka and similar comments upon them. (Section II, Articles 74, 107, 108; Section V. Articles 16 to 20).

Their Lordships have mentioned in the prior adoption cases the views of Mr. Justice Knox as to the authority of the two Dattaka treatises just quoted. In the present case the learned Chief Justice EDGE takes even more disparaging views of their authority; denying, if their Lordships rightly understand him, that these works have been recognised as any authority at all in the Benares school of law. If there were anything to show that in the Benares school of law these works had been excluded or rejected, that would have to be considered. But their authority has been affirmed as part of the general Hindu law, founded on the Smritis as the source from whence all schools of Hindu law derive their precepts. In Doctor Jolly's Tagore Lecture of 1883 that learned writer says:--" The Dattaka Mimamsa and Dattaka Chandrika have furnished almost exclusively the scanty basis on which the modern law of adoption has been based." Both works have been received in Courts of Law including this Board as high authority. In Rangama v. Atchama (1846) 4 Moo. I.A. 97, Lord Kingsdown says: "they enjoy, as we understand, the highest reputation throughout India." In 12 Moore, p. 437, Sir JAMKS Colvile quotes, with assent, the opinion of Sir William Macnaghten, that both works are respected all over India, that when they differ the Chandrika is adhered to in Bengal and by the Southern Jurists, while the Mimamsa is held to be an infallible guide in the Provinces of Mithila and Benares. To call it infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law.

The learned Chief Justice then objects that the texts of the two Rishis are detached from their context and so are rendered of no value; and that as regards Sakala there is no information where the writer of the Chandrika obtained his text, and that its genuineness is doubtful. This objection is strengthened by the fact that the greatest of the sages do not mention any such prohibition; neither Manu nor Vashistha nor Yajnavalkya nor Narada; while one ancient sage called the holy Yama, expressly asserts the right to adopt a sister's son. Those objections must receive the same answer. It may be true, though it is impossible now to say, that the Dattaka Chandrika is the sole authority for the texts there quoted and afterwards copied by Nanda Pandita; but it still remains the fact that the texts have been so quoted for several centuries and have so been received into the body of Hindu Law.

Taking then the texts as they are given, and adding to them such weight as the commentators possess, what is enjoined by them? The learned Chief Justice points out that Saunaka may mean a legal prohibition, or a moral admonition, or merely to state a fact, or to indicate a preference for daughters' and sisters' sons among Sudras. Certainly, if the question were new, the learned Judge's argument would have to be very carefully weighed before it could be rejected. Much of the reasoning which has prevailed with their Lordships in the prior cases would apply to this case; and on some points, such as the silence of other great law-givers and the existence of a sacred text in an opposite sense, with greater force. But their Lordships find an antecedent difficulty; for they have to consider whether the present question can be treated as an open one.

It is not necessary to state in detail the course of decisions in India, because there is hardly any conflict in them and they are fully stated in the judgments below. In 1808 there was a decision on a case from Mirzapur in favour of the validity of these disputed adoptions; but it is probable that the parties were Sudras, as Sir Willam Macnaghten thought they were. There was a decision in 1810 between Brahmans where an adoption of a sister's son was held valid. But Sir Francis Macnaghten tells us that it was overruled in some subsequent proceeding which is not specified. In every other case that has since occurred, when the question has arisen between members of the three regenerate classes, and the adoption has been in the Dattaka form, the decision has been against its validity. The cases have occurred in all parts of India, and all the High Courts have agreed. In making this general statement their Lordships have not overlooked the case decided by the Bombay High Court in 1867.(1) Chief Justice EDGE considers that, though the parties really were Sudras, the learned Judges thought they belonged to one of the twice-born classes, and so lent their authority to an adoption of a mother's sister's son among one of those classes. But though there was some argument as to the true caste, their Lordships find nothing in the judgment to show that the Judges thought the caste to be other than it really was. Nor was the decision treated as standing in the way of a subsequent decision in 1879 by the same High Court, which affirmed the invalidity of such marriages in the regenerate classes.


(1) See Ganpatra Vireshvar v. Vithoda Khandappa, (1867) 4 Bom. H.C. Rep., 130.

The arguments by which the learned Chief Justice seeks to withdraw this case from so strong a current of decision rest entirely on the peculiarity which in his opinion attaches to the Benares school of law. He does indeed subject the decided cases to a minute and able examination with a view of ascertaining the precise bearing of each and of attenuating its force. But the general result at which he arrives does not substantially vary from that which is arrived at by the minority of the Court, and which is above stated. That being so he puts the case in this way:

The learned Chief Justice then ties the plaintiffs down to the obligation of showing a custom to prohibit the adoptions in question; and on each decided case he puts the test question whether it is founded on proof of such a custom among the regenerate classes governed by the Benares school of law. In this position he considers that he is supported by a passage in the judgment of this Board delivered by Sir James Colvile in the case of the Collector of Madura v. Muttoo Ramalinga 12 Moore's Ind. Ap. Ca. 397. It is as follows:--"The duty, therefore, of a European Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities as whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For under the Hindu system of law clear proof of usage will outweigh the written text of the law." The principle deduced by the learned Chief Justice from this passage and applied to the present case would have very far-reaching consequences; and in their Lordships' opinion it is not a sound principle nor is it properly deducible from the language of this Board.

In that judgment Sir James Colvile was dealing with the question whether a widow could adopt a son to her husband without his express authority. That is a point in the law of adoption on which legal authorities in different parts of India, all starting from the same sacred texts, have branched off into an extraordinary variety of conclusions; each" marked enough and prevalent enough in its own sphere to be ascribed to some recognised school of law. Sir James Colvile addresses himself first to show how these schools came into being, and secondly, to specify books of the highest authority in them. It is in the course of this exposition that the sentences just quoted occur, as also the opinion before quoted with reference to the authority of the Dattaka Chandrika and of the work of Nanda Pandita. The decision of the Board was that the power claimed for the widow was conferred on her by the school of law dominant in the Dravida country from whence the appeal came. But that law was ascertained by the usual methods of ascertaining general law; by reference to authoritative text books, to judicial decisions, and to the opinion of pandits. These authorities were found to be sufficient proof of the general Hindu law prevailing over large tracts of country and populous communities. Anybody living among them must be taken to fall under those general rules of law unless he could show some valid local, tribal, or family custom to the contrary. It was necessary for this Board to refer to the differences of schools of law, because the authorities of the recognised Bengal school denied the power which those of Southern India affirmed. The whole passage is framed with reference to the fact that different schools were found to take different views of the general law on the point before the Board. But their judgment gives no countenance to the conclusion that in order to bring a case under any rule of law laid down by recognised authority for Hindus generally, evidence must be given of actual events to show that in point of fact the people subject to that general law regulate their lives by it. Special customs may be pleaded by way of exception, which it is proper to prove by evidence of what actually is done. In this case the learned Chief Justice tells us that there is no suggestion of a special custom. That being so he seems to have inverted the processes by which law is ascertained.

The rule of law asserted by the plaintiffs in this case is derived in the first place from the sacred texts which underlie all Hindu law; and, secondly, from books of high authority in the Benares school as well as in others. It has been affirmed by Courts of Justice in all parts of India and in many law suits in which the parties were subject to the law of the Mitakshara, which is of the highest authority in the Benares school. It has been so affirmed and applied in general terms, and not as confined to a particular school. It is not shown or even asserted that there is anything peculiar in the Benares school to make this rule inconsistent with its principles. It seems to their Lordships that to put one who asserts a rule of law under the necessity of proving that in point of fact the community living under the system of which it forms part is acting upon it, or defeat him by assertions that it has not been universally accepted or acted on, would go far to deny the existence of any general Hindu law, and to disregard the broad foundations which are common to all schools, though divergencies have grown out of them.

Their Lordships do not inquire whether the views so earnestly maintained by the learned Chief Justice upon the construction of the disputed texts might have been successfully maintained at the beginning of this century. For 80 or 90 years there has been a steady current of authority one way, in all parts of India. It has been decided that the precepts condemning adoptions such as the one made in this case are not monitory only, but are positive prohibitions, and that their effect is to make such adoptions wholly void. That has been settled in such a way and for such a length of time as to make it incompetent to a Court of Justice to treat the question now as an open one. Their Lordships will humbly advise Her Majesty to reverse the decree appealed from, and to restore that of the Subordinate Judge with costs in both Courts. The respondents must also pay the costs of this appeal.

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