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.(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: