28 Dattaka

CHAPTER XXVIII

DATTAKA ( adopted son)

No branch of Hindu Law in modern times has been as fruitful in litigation as adoption. There are instances, where, fifty years after a point in the law of adoption was deemed to have been settled by a Full Bench decision, the Privy Council intervened and overruled the Full Bench decision in spite of its usual practice to follow the rule of stare decisis. The medieval digests are full of varying interpretations of the same smrti texts and the law of adoption differs from province to province according to the authoritative medieval works and modern case law. Voluminous works like those of Shastri Golapchandra Sarkar and of Mr. Kapur have been written on the subject of adoption in all its details. There is so much bewildering confusion and so much case law on the several aspects of adoption that it is only legislation that can resolve the tangled skein of the modern law of adoption. In this section an attempt will be made to present the law of adoption as evolved by the smrtis and medieval works and only some im portant cases bearing in various ways on the ancient law will be cited.

Ancient texts on adoption

It has been shown above (pp. 641,657) how even in the times of the Rgveda the son of the body was eagerly sought for and how the adoption of another man’s son was declared to be not worthy of being thought of. Even so late an author as Sukra (11. 31 ) says that the adopted and other secondary sons should never be thought as one’s sons, since on seeing a rich man they desire to be adopted [^12528].

Yet Vedic Literature contains some references to adopted sons. In the Tai. S. VII. 1. 8. 1 we come across the the story of Atri, 12526 who gave an only son in adoption to Aurva in these words: ‘Atri gave his son in adoption to Aurva

12528. ANG ICT TUT: FRENI TRIBU T TETT u t i watch II. 31.

1252b. aa stara wat gemmary I Ħith TARTU Art: fr.ro पातयामास पतं पराश्रमपश्पसमाहरसेनापजस तोरेतस्प पत्यारो पीरा भाजपन्त wiar Gimar HTS : 12. # VII. 1. 8. 1. For y, vido FireT. Mt. 23. 1. 7 and . Wt. XI. 1.16-26.

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who desired to have a son. He (Atri), having become empty (as it were, by giving away his only son), thought himself to be destitute of strength, to be weak and worn out (lit. stale ). He (Atri) saw this catūrātra (a sacrifice of that same lasting for four days). He made preparations for it and performed that sacrifice. Then he had four valiant sons born to him, a good Hotr̥, & good Udgatr̥, a good Adhvaryu and a good sabheya (skilful speaker in an assembly). The story of Sunahśepa in the Ait. Br. (33) shows that Viśvāmitra, though he had already one hundred and one sons, adopted Sunaksepa under the name Davarata, with the consent of his fifty-one sons (with Madhu cchandas 1253 at their head), though the elder 50 sons disobeyed their father. It must be supposed that the later rule allowing only a sonless man to adopt did not apply to Viśvāmitra.

The sūtras and smr̥tis contain hardly anything about the dattaka except his name (among the 12 kinds of sons) or the definition, as in Baud, Dh. S. II. 2. 24, Manu IX. 168, Yāj. II. 130, Viṣṇu Dh. S 15. 18-19, Nār. (dāyabhaga 46). The Vas. Dh. 8. is an excoption. It not only gives a definition (in 17. 28-29), but is one of the earliest smrti texts to dilate on the rules about adoption (in 15.1-9). What it says may be sat for th?? in one place.

“Man produced from seed and blood
owes his birth to his mother and father.
(Hence) the mother and father have power to give, to sell or to abandon him.
But one should not give or accept an only son,
for, he is required to continue the line of his ancestors.
A woman should neither give nor receive a son (in adoption)
except with the permission of her husband.
One about to take a son in adoption should,
after having inyl?? ted his kinsmen,
having informed the ruler (of the intended adoption)
and having performed in the middle part of his house a homa with the výāhr̥tis,
take only him who is closely related and who is a kinsman not remote (in habitation and speech ).
If a doubt arises ( as to the family of the person to be adopted)
he (the person desiring to adopt) should treat one whose kinsmen are in a remote place as if he were a sūdra;
for it is declared (in the Brakmana or Vedic works) ‘by means of one (son, aurasa or adopted) he (the adopter) saves many’.
If, after a son is taken (in adoption ), an aurasa is born
(to the adopter)the adopted son shall be the recipient of a fourth share” 1354.

1253. FIT #yuram: T I TENT

w. #t. p. 17.

OT HE Ww: foot matt HPESTHE PATE ITA . . 33, 6. This is q. by

the

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Manu IX. 141 refers to the adoption of a son who is not of the same gotra as the adopter and IX. 142 sets out the results of adoption. The other principal ancient texts quoted by the D. M. and V. Mayūkha are those of Atri, Saunaka, 125$ Sakala and the Kalikāpurāpa. The Mit. does not contain more than a few lines on the dattaka. It is only in such late works (belonging to the 17th century and later times) like the V, Mayūkha, the Dattakamimamsā, the Samskara-kaustubha, the Dattakacandrika, that the dattaka receives an elaborate treatment. In modern times the D. M. and D. C. ( which is branded as a forgery by some Bengal writers ) 1236 have been regarded by

1254. शोणितसम्भवः पुरुषो भवति मातापितुनिमित्तकः । तस्य प्रदानविक्रयस्या गेषु मातापितरौ प्रभवतः । म त्वकं पुत्रं वचारप्रतियुशीयासहि सम्तामाय पूर्वेषाम् ।मश्री पुत्र इमारमतिगृहीपादाम्यत्राज्ञानावः । पुर्व प्रतिमहीण्या पानाडूप राजनि च निवेध निवेशनस्य माये स्पातिभिर्तुत्वा अपूरपाग्यवं बन्धुसंमिकटमेव प्रतिग्रहीयात् । सन्देहे

पोल्पो रेवाग्ध ममिव स्थारयेत् । विज्ञायते केन वाचायत इति । तस्मिश्रेत्मतिगृहीत STA: 9 gram vaut FTEWEI Y3 15. 1-9. The Band, Gșhyasesasūtra II. 6 has the first five and the last sūtras out of these. In Aparārka pp. 737-738, V, R. p. 368, the V, Mayūkba p. 112, V. P. pp. 477-478 and in the D. M this passage is quoted. The V. Mayūkba reads

na gv for #Pengaturg , while the pa 1. (folio 124) reads #TE… The Mit. on Yāj. II 130 quotes a portion of this passage. On #TAFUT नाप the v. R. p. 369 explains ‘सम्तानोच्छेदे हि पिण्डोदकक्रियानिवृत्तिमहाग्दोष mitt 7519: 1. Aparārka pp. 737 and sm. C. II. p. 192 read the and explain respectively ‘असम्बन्धिममेव’ and ‘संनिकृषभावपुत्रादिष्यतिरिक्तमेव T a ‘, but these explanations are not good, since the brother’s son is recommeaded as the best for adoptioo according to others. Therefore the explanation of V. R. p. 569 that what means w h o is preferable. The whole of this passage of Vas. except the last sūtra is quoted in Ganga Sahai v. Lekhraj 9 All. 253 at p. 300 and the first five sūtras in Tulshi Ram v. Behari Lal 12 All. 328,338 and Jogesh Chandra v. Nrityakali 30 Cal. 965 at p 972.

1255. Vide Appendix for Saunaka’s verses on adoption and for Baud. saya-segasūtra.

1256. As to the tradition among Bengal Pandits that tho Dattaka candrika was fabricated by a paadit called Raghumani to support the claim of an adopted son to a Rāj, vide Golapchandra Sarkar’s Tagore Law Lectures on adoption ( 2nd. od. of 1916 pp. 122-126). It may, however, be noted that in Bhagwan v. Bhagwan 17 All. 294, 313 Mr. Jastice Banorji refused to place any reliance on the tradition.

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the Privy Council as of the highest authority in matters of adoption. In Collector of Madura v. Mootoo 12 Moo. I. A. 397 at p. 437 the P. C. observe:

‘Of the Dattakamsmāmsā of Nanda Pandita and the Dattaka-Candrikā of Devanna Bhatta, two treatises on the particular subject of adoption, Sir William Macnaghton says that they are respected all over India;
but that when they differ the doctrine of the latter is adhered to in Bengal and by the southern Jurists, while the former is said to be the infallible guide in the provinces of Mithila and Benares’.

But Jolly (T. L. L. p. 166) gives a far more correct estimate of the value of the D. M. when he says

‘It is simply a misfortune that so much authority should have been attributed in the courts all over India to such a treatise as Nanda Pandita’s Mimāṁsā which abounds more in fanciful distinctions than perhaps any other work on adoption and it is high time that the numerous other treatises on adoption should be thoroughly examined and given their due weight.

In Bhagwan v. Bhagwan 26 I A. 153 at p. 161 the P. C. observe

‘To call it (the Dattaka mimāṁga ) infallible is too strong an expression and the estimates of Sutherland and of West and Būhler 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’.

Yet even these works have been set at naught and departed from by Courts in India on many points as will appear in the sequel.

The principal matters to be discussed under adoption are : object of adoption, persons that may legally take in adoption, persons that may give in adoption, persons that may be taken in adoption, the requisites and ceremonies of adoption and the results of adoption.

The objects of adoption-Atri (verse 52 ) quoted above in note 1231 declares that that man alone who has no son should always secure a substitute for a son with all possible effort for the sake of securing the offering of pindas (funeral and śrāddha cakes) and water. The D. C. quotes this verse and also an other ascribed by it to Manu 1257 in which the object of adoption is said to be twofold, viz. securing spiritual benefit from the piṇdas and water ( offered by him ) and perpetuating the name and family of the adopter.

__1257. ताह मनःभिपुत्रेण सुतः कार्यों पाहताच प्रयत्नतः। पिण्डोदकक्रियाहेतो. MAFFā ta . #. p. 2.

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In one of the latest cases on adoption that revolutionized the law the Privy Council 1258 emphasize the peculiar religious significance that has attached to the son among all classes of Hindus, refer to the 9th chapter of Manu verses 106, 107, 137, 138 of which are instinct with this doctrine, hold that the foundation of the Brabminical doctrine of adop tion is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites and that in this doctrine the devolution of property, though recognized as the inherent right of the son, is altogether a secondary consideration.

Persons who can give in adoption

The primary right to give in adoption is that of the father, who can do so without consult ing the mother, 1259 The mother cannot without the husband’s permission give her son in adoption while the father is alive and capable of consenting. But the mother alone can (as said by Manu IX. 168, Yaj. II. 130 ) give her son in adoption if the father be dead or if he is incapable of giving consent or has entered the order of ascetics, provided he has not expressly or impliedly prohibited her to do 80. If both parents are dead no one else, not even the paternal grand-father or the step-mother or a brother, can give a man in adoption. If A has a son B and is then given in adoption by his mother into another family, it was held in Martand v. Narayan that A still retained his power as father to give away B in adoption (1. L. R. 1939 Bom, 586 F.B.). This decision has been dissented from by the Nagpur High Court in Sharadachandra v. Shantabai (I. L. R. 1944 Nag. p. 544, F. B.). But the reasons given by the Nagpur High Court are not convincing and the judges seem to be influenced by the dictum of the P. O. that the adopted son is

1258. Vide Amarendra Man Singh v. Sanatan 60 I. A. p. 242. Though it may be conceded that in the majority of cases the object of the adopter is religious, the object of the giver and of the person adopted (if he is grown up) is far from religious. The main object of the latter two at least in modern times is to secure wealth without effort and hardly any reli. gious motives enter into their minds. No ono gives a son in adoption to a poor man, though a poor man has a soul to save as much as a rich man. Besides in adoption by widows, their motive is very often far from religious. They often adopt out of pique against their husband’s brothers or nephews Bad for benefiting themselves monetarily by making agreements with the adopted sons to share the property with them.

____1259. भा एवं माता पिताबा दगातामिति मनुमा भातुर्भदज्ञानसापेक्षवाजपम्परवं रूपमाननरपेक्पात् पितमध्यमत्वं जमकतासामाग्यानुभयोमुख्यसमाभिप्रेस्प पूर्वपूस्विरसा jote sari I . . pp. 119-121.

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just like an aurasa son except in a few well defined cases. It cannot be supposed that the P. O. know all the texts of the nibandhas dealing with adoption. Though the Bombay High Court held in Putalabai v. Mahadu 33 Bom. 107 that a mother did not by her remarriage forfeit her right to give in adoption her son by the first husband, that decision was subsequently overruled in Fakirappa v. Savitreua 23 Bom, L. R. 482 (F. B.) which decided that after remarriage a widow has no power to give in adoption her son by the first husband. The same High Court held in Shamsing v. Shantabai (25 Bom. 551) that a Hindu father, who, after the birth of a bon, became a convert to the Moslem faith, did not by reason of his conversion lose his power of giving his son, who remained a Hindu, in adoption though the physical act of giving in adoption, being accom panied by religious ceremonies, may have to be delegated by him to a Hindu. This decision was based on the Caste Dis abilities Removal Act of 1851 (for which see above p. 547, no 1021 ). This decision is against the spirit of the ancient Hindu Law.

What persons may adopt a son

Every male Hindu, who is of sound mind and has attained the age of discretion though he may be a minor according to the Indian Majority Act (III of 1875), can take a son in adoption provided he has no son, grandson or great-grandson, natural or adopted, living at the time of adoption. The word ‘aputrena’ in the verse of Atri ( quoted above in n. 1231) is explained by the D. M. as meaning 1260 one who had no son at all or whose son is dead and as in cluding the grandson and great-grandson. It would appear from a Bombay decision that even if a Hindu has a son, grand son or great-grandson disqualified from inheriting on the grounds mentioned above he cannot adopt (vide Bharmappa v. Ujjangauda 46 Bom. 455). In the Dattasiddhantamañjarl of Balakrspa (folio 11b) it is stated that if the aurasa son of a person is congenitally blind, dumb or deaf he can take a boy in adoption. In Krishnaji v. Raghavendra I. L. R. (1942) Bom. 492 it has been held, relying upon 46 Bom, 455, that a widow

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_1260. अपुत्रोऽजातपुत्रो मतपुत्रो पा । अपुत्रो मुतपुत्रो वा पुधार्थ समुपोण्य च इति Floreirant… saget of ritt 99 1999an ayamot igro sanato (LE 8.990) anar fortsattegro. #1989 tahrerairar ofTETETET I FT. #1. p. 3 and p. 18; * 4 orandringHUE IAITU

fitnegro encantoret 17. F. p. 3; 3 ure

UE 40: faa ugot para A

n tt folio 11 b. .

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cannot adopt a son during the lifetime of her natural son who was a congenital idiot. The fact that a man is a bachelor or a widower or that his wife does not consent or that she is preg nant at the time of adoption does not prevent him from taking a son in adoption. In fact Vasiṣtha provides for the birth of a son after a son is adopted (15. 9). It was said 1261 by Rudra. dhara aud Vacaspati that as gūdras cannot perform homa with vedic mantras ( required by Vas. quoted above on p. 663) sūdras cannot adopt a son. Others like Raghunandana, Nilakantha, D.M. hold that a gūdra can adopt, as Saunaka expressly allows him to do so and that the homa may be performed through & brāh maṇa (as allowed by Parāśara VI. 63-64) 1262. A wife cannot adopt during her husband’s lifetime except with his express congent (as Vas. 15. 5 says).

After a man’s death the only person that can adopt to him is his widow. It is as regards the power of the widow that the greatest divergence of views prevails. The basic text is that of Vas. 15. 5 (a woman should not give or take in adoption except with the absent of her husband). The resourcefulness and ingenuity of commentators, all deemed to be orthodox and all proficient in the Mimāṁsā rules of interpretation, is illustrated nowhere better than in the interpretations of this text. Four interpretations are placed on this sūtra of Vasiṣtha: (1) The D. M. and writers of Mithilā such as Vācaspati hold that a widow cannot adopt at all, because at the time of adoption it is im possible to have the consent of the husband (who is then dead) and because a woman cannot perform the homa with vedic mantras and cannot repeat the vedic passages about acceptance (which are required by Vasistha and Saunaka); (2) In Bengal, Madras and Benares it is held that a widow may adopt under an authority from her husband given during his lifetime. The

1261. Toreroaren 31 AHTAUTTAA gara garrara the area T a Fangmera: 139 H FAParamari वि सम्पादितं यस्य सम्पनं तस्य तत्कलम् । इति पराशरोक्तः (६. ६३-६४) । स्मातहरिनाथाव corater i . * p. 112. The courts hold that a sūdra can adopt.

1262. gota garrafama pat sporet i 38 QUOTAS: * I…’ ipfi mai stato fauerat UUTEV sud … Foto … Tento प्रतिमहासिद्धःखीणो होमामधिकारित्वात् परिग्रहामधिकार-इति वाचस्पतिः। नच शौनकीये 27 prāvo TATTET FRITT STARPTA mai taraf sugar

inter afragmar 15. of. pp. 19 and 22-23; un progettata gwafer स्वाद. ज्याहत्यादिमत्रपाठे च भीमपोराधिकारासपोर्दत्तकः पुमो न भवत्येति दि. पिके गधरेणोक्त पाचस्पतिवैषमाह । निर्णसिगा पूर्षि p. 249.

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idea is that the permission (anujñāna) of the husband is not required to be given just at the time of the adoption and that it may be given long before the actual adoption. (3) In Madras a widow may also adopt without 1263 her husband’s authority, provided she secures the consent of the father-in-law or (if the latter be dead) of all the co-parceners of the husband, if her husband died as a member of a joint family, and if the husband was separate at the time of his death, then the consent of the father-in-law or (if he were dead) of a substantial majo rity of her husband’s nearest sapindas. In this view the word ‘of the husband’ (in Vasistha) is taken as only illustrative and not literally, (4) The Vyayahāramayūkha, 1264 the Nirnaya sindhu, the Samskārakaustubha, the Dharmasindhu, that are regarded as authoritative in Bombay and Western India, hold that the passage of Vasistha refers only to a wife whose husband is alive and that a widow may adopt without the husband’s autho rity. According to this school the husband’s authority to adopt is always to be presumed, unless he has prohibited his widow expressly or by necessary implication from adopting. The D. C. appeals to the general maxim ‘another’s (or the opponent’s) view if not dissented from may be taken as having been approved’.

1263. In Balsubramanya v. M. Subbayya L. R 65 I. A. 93 at p. 99 the Privy Council say : ’their Lordships are not laying down that the requisite authority must necessarily be express but they agree with the District Judge that in order to constitute an implied authority there must be circumstantial evidence of a cogent character’. Vide The Collector of Madura v. Mootoo 12 Moo. I. A. 397 pp. 435-36 where three of these four interpretations are pointed out.

1264. भदशा त सधवाया एव इयार्थत्वात् । विधवायाख तो पिनापि पितस्तदभावे ज्ञातीनामाक्षया भवति । … अतो यस्यामवस्थायां भहमा माता सैपात्रानूयते न वपूर्ण विधीयते । अतो विधवाया भर्तुराज्ञां विनाप्यधिकारः । ग्य. मयूखा, 1133; तव वसिष्ठः ।

म स्वकं पुत्र … भरिति । इदं च भर्तृसस्थे । अन्यथा दयाम्माता पिता बास पुत्री विमः PHO

स्मृत इति वरसग्यासचोपिरोधः स्यात् । दाम प्रतिग्रहोपलक्षणम् । निर्णयसिन्धु । पूर्वार्ध p. 249 ; नियास्त जीवति भर्तरि तवामतो प्रोषिते सते वा तपशा विनापि । पथा पसितः ।

ESHISMRITAMINIANS ‘नी… भर्तुः इति । अहमतिबाप्रतिषेधेपि भवति । अपतिपिचं परमतमहमत भवतीति न्यायात् । दल. p. 18; तणामाधिस्यकाम्यमताविधर्माचरणे व पुत्रप्रतियोपि मा. पुत्रस्य लोकोस्तीत्यादिसामान्यज्ञामादेष विधापा अधिकाए । उक्तनिधदसकस्वीकार भि खि श्रीभिरपि सधवाभिधवाभिख कार्यः । वाया वा मृतपुत्रा या पुत्रार्थ ससपोग्य पति शौनकीयवचस्पपिशेषश्रमणात् । सं.को. p. 160. It will be noticed that the सं.की. reads arपापा मुसापुत्रा पा for अपुमो मृतपुत्रो वा in शोमक’s text which is the readiog of all other works, the former being probably a fabrication inserted to support widow’s claims to adopt. The D. M. p. 3 notices the reading पापी मतमजी पापि in Saunaka’s text. For the maxim अप्रतिपिल &c. vide शाइरभाम्प on वेदानाय II. 4. 12.

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There is a large volume of case law about the construction of the authority to adopt, about the rights of co-widows in the matter of adoption, about the limits of a widow’s power, which are deemed to be outside the purview of this work.

As regards the power of a widow to adopt in the Bombay school, when her husband was joint at the time of his death, the case law has fluctuated from time to time. Only a few cases may be referred to here. In Ramji v. Ghamau 6 Bom, 498 (F. B.) a Full Bench of the Bombay High Court held tbat a widow, whose husband was a member of a joint family at the time of his death, could not adopt when she has not the authority of her husband or the consent of the husband’s un divided coparceners. After this decision had stood for 50 years the Privy Council held in Bhimabai v. Gurunathgouda 1265 L. R. 60 I. A. P. 25 that the Full Bench decision had already been overruled in Yadao . Namdeo ( 48 I. A. 513) and that a Hindu widow can adopt without the consent of her husband’s

1265. IA Bbimabai’s case the Privy Council purport to follow the case of Rakhmabai v, Radhabai 5 Bom. H. C. R. (A C. J.) p 181. But in that case the husband was separate at tbe time of his death. The P. C. however point out that in Yadao v, Namdeo (48 1. A. 513 at p. 529 ) it was said that the decision ia Rakhmabai’s case was not based on the fact that the husband was separate at bis death or on the fact that the widow when she made the adoption bad the estate vested in her and it was beld tbat that decision was equally applicable wbere the husband was joint. Apart from the fact that the decision of the P. C. is opposed to the general sentiment of Hindu society at present, with the greatest respect two criticisms have to be offered against the decision in Bhimabai’s case. The passage of the Vyavabāramayūkba relied upon in Rakhmabai’s case and in Bbimabal’s case has not been correctly understood, The Mayökha was combating the view of others that a widow cannot adopt at all. Therefore ho tried to establish that a widow can adopt without her husband’s authority. But the Mayukha did not say expressly that she can adopt without any body’s authority or that she can adopt even in a joint family without the consent of the coparceners or even against their wishes. On the contrary if we look at the whole context where he quotes Vāj. I. 85 and a verse of Kāt. (930) it would appear that he meant to convey that the consent of the father of the husband or of his kiasmen would be necessary. Further, no one drew the attention of the P. C. to another passage of the V, Mayūkba whore it summarizes the rite of adoption and states ‘Women whose busbands are alive are entitled to adopt with the permission of their husbands: failing the husband, a woman can adopt with the permission of the (busband’s) father and the rest: front FUIT HIHAT THE faming , HYU P. 120.

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Widow’s power to adopt

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00-parooners, when the husband was a member of a joint family at the time of his death. This decision was carried further by Amarendra’s case ( 60 L. A. 242 ) by holding that when a widow, who had authority to adopt, adopted even after the estate had devolved on a male collateral heir such adopted son would take the estate and deprive the heir of it. As any widow was held to be able to adopt in Bombay without anybody’s consent, hundreds of adoptions have taken place, which came and are coming before the courts. Another Full Bench case held that when a Hindu coparconary came to an end on the death of the last surviving coparcener and the family property became Vested in his heir, a subsequent adoption by the widow of a predeceased coparcener was valid, but it did not revive the coparcenary nor did it vest the property of the former co parcenary in the adopted son (Balu v. Lahoo L L. R. 1937 Bom. 508). When a co-parcenary was broken up by partition among the members, it was held 1266 that the widow of a co parcener who died long before the partition cannot make a valid adoption and reliance was placed on a passage of the Viramitrodaya ( quoted below ). 1207

But these decisions have been dissented from in Bajirao v. Ramkrishna I. L. R. (1941) Nagpur 707 and in K. R. Saṅkarlingam Pillai v. Veluchami Pillai I. L. R. (1943) Mad, 309 ( F. B.), where it has been laid down that when the surviving coparconers of a joint Hindu family were in possession of the joint family properties which they obtained in a partition among themselves after the death of a coparcener and subsequent to the partition a valid adoption was made to the deceased coparcener by his widow the adopted son was entitled to reopen the partition. They rely by way of analogy on the provisions of Yaj. that the posthumous son can reopen a partition already made and also on that of the disqualified heir when the disqualification is removed and on the dicta in some cases that an adoption dates back to the date of the death of the adoptive father, But no smrti text and no digest has extended the exceptional rules about the posthumous son and the disqualified heir to a son

efore the that the wid by partit

1266. Vida Hirachand v. Sojpal I. L. R. 1939 Bom. 512 and Irappa v. Rachayya I. L. R. 1940 Bom. 42.

· 1267. **TA:

l

prunater para GT10574 विभागागसे परस्परस्वाम्याग्यदीपनग्ये तानि नश्यन्ति । परमरणपारिवाज्यादिनेवेति न काप्यनुपपत्तिः । व्यवस्थापनमपीदमेब, अन्यथैकदेशे उत्पादनमित्येव वदेत् । अत एक विनाश ATTTTTTT PONTATTTENTOFTUTTI 84. #. pp. 431-32..67%

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adopted after partition. Their reasoning as regards the Bombay cases is not satisfaotory. It amounts to this that as between the separating co-paroeners the coparcenary may be extinct but as to the subsequently adopted son it exists i. e, a co parcenary is extinct and existing at the same time, which, to use no stronger expression, appears rather strange. Besides the general rule is that partition is made only once ( Manu 1X. 47). The cases of the posthumous son and of the disqualified heir are expressly provided by way of exceptions. The usual rule is that exceptions are to be strictly limited to the matters expressly stated and are not to be extended by analogy to cases not covered by the words of the exception and that other cases are governed by the general rule. It is a canon of interpreta tion in Hindu Law that a special text forming an exception to a general text should be construed strictly and applied only to the cases clearly falling within it ( Gangi v. Chandrabhagabai 32 Bom. 275, 283, Hanmant v. Ganesh 43 Bom. 612, 624). Further, a Hindu widow is not compelled to adopt at any particular time; she may adopt at any time during her life. In Raje Vyankatrao v. Jayavantrao 4 Bom. H. C. R. (A, C. J.) 191 it is noticed that the widow in that case adopted 71 years after her husband’s death. If the reasoning of the learned Judges of Nagpur and Madras is correct then when three or four genera tions have succeeded to the separating coparceners, an adopted’ son can reopen the partition after three quarters of a century This result, to say the least, would be most unreasonable. The Nagpur High Court observes that every Hindu widow is a potential mother. This is a fiction which has been oarried too far by that courtand by the Privy Council. A woman in the order of nature can hardly ever have an aurasa son beyond the age of fifty or so, but when a fiction is employed a woman can bring into existence & son even when she is 80 or 90. The Privy Council have approved of the Nagpur and Madras decisions recently in Anant v. Shankar 46 Bom. L. R. 1. They hold that a Hindu family cannot be brought to an end while it is possible in nature or law to add a male member to it or while there is still a potential mother if that mother in the way of nature or law brings in a new member. In Ramchandra v. Shankar 47 Bom. L. R. 121 (F. B.) the Privy Council decision in Anant v. Shankar has been followed and it is held that, the decision in Balu v. Lahod has been expressly overruled by the Privy Counoil. The consequences of these latest decisions will be inost disastrous for Hindus. In Amarondra’s case the P, O. state that there

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Criticism of P. C. decisions

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must be some limit to the power of a widow to adopt or some conditions in which it would be contrary to the spirit of the dootrine to admit its continuance or inequitable in the face of other rights to allow it to take effect (L. R. 60 I. A. 242 at p. 249 ). ’ In Madana Mohana v. Purshothama L. R. 45 I. A. 156 the P. O. approving of Ramkrishna v. Shamrao - 26 Bom. 526 (F. B.) held that, when a man dies leaving a widow and a son and that son dies leaving his own son or a widow to continue the line by adoption, the power of the former widow comes to an end and cannot be revived; that is, they were prepared to hold that the grandmother succeed ing to her grandson who died unmarried could not make a valid adoption and allowed the grandfather and his ancestors to remain without the religious benefits that a son adopted by the grandmother would have conferred (in spite of the 9th chapter of Manu on which they rely in Amarendra’s case ). According to the recent rulings any widow whose husband died a member of a joint Hindu family may adopt at any time oven when the other members become separate and may remain separate for 50 years or more and yet a large slice of the estate may be taken away after several generations have succeeded, laboured and acquired a vast estate. Further, it is not clear how far the P. O. will go in their solioitude for the adopted son. Suppose three brothers separate and one of them sells the pro perty that came to his share. If the partition is to be opened for the benefit of a son subsequently adopted by a predeceased member’s widow, will the purchaser be affected or not (supposing the sale is within 12 years of the adoption)? Suppoging that the last surviving member of a fainily dies leaving a married daughter and a predeceased son’s widow and the daughter inhe rits an absolute estate ( as she does in Bombay) and remains in possession for 30 years, is it meant that a son thereafter adopted by the widowed daughter-in-law can divest an estate Vested for thirty years in a married daughter who is not a mem ber of the family at all after her marriage? The recent P. C. decision in Anant v. Shankar appears to indicate that whatever the longth of time the adopted son will oust a collateral to whom the estate may have gone by inheritance. Intending purchasers have become afraid that there is no knowing how far the P. O. may go. These decisions will lead on to hurried sales of joint family proporty at whatever price may be fetched immodiately a coparcener dies leaving a widow. The result of the several decisions of the P. O. has been that properties of

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Hindu families in which widows of predeceased coparceners exist are not easily saleable and do not yield their proper market value. The inroads on the ancient joint family system of the Mitakṣarā have been so many that only the shell remains; the burdeng are there, but the soul is gone, what with the right of each coparcener to alienate his share for consideration, the Gains of learning Act, Act 18 of 1937, the decisions of the P. C. about adoption, sec. 39 of the Transfer of Property Act. It would be better if the Legislature declared that the joint family system of the Mitakṣarā type has been abrogated, if all the inno vations introduced by legislation and judicial decisions are to be kept intact.

A widow who has attained years of discretion may adopt although she is a minor according to the Indian Majority Act (of 1875). It has been held in Bengal that an unchaste 1368 widow cannot adopt, but in the Bombay Presidency it has been held that a sūdra widow, though unchasto, may make a valid adoption, 1369 If a man dies leaving a widow D and two sons A and B, who form a joint Hindu family, and subsequently A dies leaving a widow C and his brother B, and if B dies un married and the mother D suoceeds as heir to her unmarried Bon B, she has still the power to adopt a son. The duty of continuing the line was cast upon both A and B and not on A alone and therefore when A dies that duty is cast on the survi ving coparcener B. Therefore the proposition laid down in Ramkrishna v. Shamrao cannot apply and the mother of B can adopt ( vide Anant ». Dnyaneshwar 46 Bom. L. R. 353 ).

Who may be adopted. The person to be adopted must be a malo according to the Vyavahāramayūkha1270 which relies on the analogy of upanayana ( that only a male undergoes, as stated in the ancient text ‘aztavarpam brāhmanam-upanayita). This has been followed by

1268. Vide Sayamalal v. Saudamini 5 Beng. L. R. 362. 1269. Vide Basvant v. Mallappa 45 Bom. 459.

1269. इसका पुमानेव भवति न कण्यास शेयो दमिमा हतः (मधु. १६) इति महासंझिसम्बन्धोधकपाक्यगतेन स इति सर्वनाम्ना : मातापितकर्तक-भीतिजलापमापति. मिसकदानकर्मीभूतसजातीयस एष-अधवर्ष मामणापमयीत तमायापपीत ति

areng agerianae Hire afraga . #q pp. 108-109 For भाव मारणपनयीत, vide आप. प. IV. 10. 2 and वर्शनाचा’ gloss thereon. The warney says : terra m

TUE! TH minte durarara from ITT ATT I

a wafati (III p. 162).

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Whether females can be adopted

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the Indian Courts. 171 But the D. M, (pp. 112-116 ), Sam. K. (p. 188 ) and Dharmasindhu 1972 relying upon such instances as that of Santa, the daughter of king Dasaratha ( who was adopted by king Lomapāda) and of Pșthā, who was the daughter of Sūra and was adopted by Kuntibhoja, say that even a girl may be adopted. Pannalal in ‘Kumaun local customs’ states that a girl may be adopted as a daughter in Kumaun by custom. The person to be adopted must be of the same caste as the adopting father. Yaj. II. 133, providing that the twelve kinds of sons that offer the pinda and take the wealth one after another in order, applies only to sons of the same caste. Saunaka also requires sameness of caste. Manu IX. 168 employs the word ‘sadrśam’, which was interpreted by Medbā. tithi as meaning ‘similar to the adopter in qualities and not in caste’. Medhātithi 1273 expressly states that a brahmana may adopt a kṣatriya boy. But Kullūka and the other con mentators of Manu, the V. Mayūkha and other works hold that the boy must be of the same caste. The Sam. K, p. 150 and Dharmasindhu go a step further by saying that even a brāhmaṇa should adopt another of the same country. The Vāyu purāṇa (99. 137–139) narrates that Bharata, son of Duṣyanta, adopted Bharadvāja, son of Bphaspati and a brahmana, who then became a kṣatriya. 1274 The courts accept the view of Kullūka and the rest. It is likely that courts may allow & boy from & subcaste of each of the four principal varpas to be adopted by a man belonging to another subcaste of the same varpa, 1274. Saunaka and Vṭddha-Yaj. q. by D. C. provide

1271. Vide Gangabai v. Anant 13 Bom, 690, where the Vyavabara mayūkba is expressly referred to and followed in preference to D. M. and Samskārakaustubba. Vide also in re Munshiram 12 Lahore 658 at p. 661.

1272. For the quotation from the t . vide H. of Dh, vol. 1. p. 449 ni 1119. The D. M. adds passages from the manager, for , for and strega. Vide 111. 2-3 (cr, ed. chap. 104 ) for the adoption of

yuft; and (TATT01, 98, 9th chap. for that of F T. - 1273. सहज ज्ञातितः किं तर्हि कुलादरूपेणैः । क्षत्रियादिरपि ब्राह्मणस्य दत्तको goudi HUT. ON AU IX. 168. Faarahat point Faraadi

ertany - SexNTT t ra vṛ sing III vi p. 138.

1274. The format murat upoutatis fue at four #TE 99. 157. fuere seems to be a corrupt form of TeqTM. : -1274a. Io Raj Nandini o. Aswini Kumar I, L. R. (1941) 1 Cal 457 the adoption of a Vaidya child by a Kāyastha was upheld in the Sylhet district, as both are now troated as būdras.

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that the dattaka may be of a different caste, but that such a son will not take the wealth. 1275 In spite of the words of Vas. 15. 3 and of Saunaka ( that one having an only son should not give him ) the courts have hold that even an only son may be given or taken in adoption and that the words of Vasiṣtha are merely recominendatory. Vide Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma 26 I. A. p. 113 and Vyas Chimanlal v. Vyas Ramchandra 24 Bom, 367 ( F. B.). In connec tion with the force of the words of Vas. 15, 3-4 stating why an only son should not be given or taken, Jaimini’s rule contained in what is called the ‘hetuvan-nigadadhikarana ‘1276 (Jai. I. .. 26-30) came in for very exhaustive discussion in Beni Prasad v. Hardai Bibi 14 All. 67 (F. B.) and Radha Mohun v. Hardai Bibi 26 I. A. pp. 113, 146. There are several Vedic passages like this,’ he offers the grains into the fire with a windowing basket, for food is prepared with the help of it’ (Tai. Br. I 6.5). The question is whether such sentences put forward a reason for what is enjoined in the preceding portion or whether they are intended merely as arthavādas (i. e. for the praise of what is stated in the preceding part of the passage ). Jaimini con cludes that they are for the purpose of praise 1277 alone.

1275. af faaramist um a: man i start you gerustienky मतं हि तत् ।।… व्यक्तमाह पदयाज्ञवल्क्यः। सजातीयः सुतो माय: पिण्डदाता स रिक्धभाक। तदभावे विजातीयो पंशमात्रकरः स्मृतः । प्रासाच्छादनमात्रं तु लभते स तद्रिक्थिनः ॥ इति ।

M. . p. 71 . p. quotes the verse il FORT & as 11a*’s (p. 104) and also as Tauta’s( p. 52).

1276. faaf foraematogroei afere seguretat ate 16. 1. 2. 26-27; 310 graftet: to getragen a anta FEE: किं स्तुतिस्तेषां कार्यमुत हेतुरिति । किं प्राप्तम् । हेतुः स्यादनकरण होमस्य । शबर, इह ये हेतुष जिगधन्ते हिशदादिभिर्न ध परमार्थहेतवस्ते उदाहरणम् । तन्त्रवार्तिक.

1277. Nigada means a sentence or sacrificial formula’ and ‘hetuvat meads containing a word or words (like ‘hi’) which are generally used to indicate a reason’ for a statemeat already made. In preparing food from grains, the sūrpa is required for windowing them to free them from busk &c. as also are required the pan or pot for boiling the grains and a ladle for stirrlag the grains when they are being boiled. The Śruti passage provides that with the help of a sūrpa the homa is made of Karambhapātras (pots full of husked grains of yava slightly fried on the Daksiṇa fire, ground and mixed with curds) in the Varoṇapragbāsa, ond of the cāturmāsyas, Vide H. of Dh, vol. II. pp. 1095–96 and 1098 for the dūrpa used as a juht ladie. If the latter part of the passage contains a reason for the first part, then it would follow that the pot or ladle (both of which are useful in getting food

(Continued on the next pago)

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Adoption of eldest son

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“The eldest son also should not be taken in adoption, since, as the Mit. (on Yāj. IL 130) puts it, it is the eldest son alone who is the foremost in serving the purposes of a son as regards his genetive father aco, to Manu IX. 106 which says ‘a man becomes one having & son (a father) by the mere faot of the birth of his ( fret) son and becomes free from the debt owed to

(Continued from the last page) prepared) may equally be used instead of the sūrpa. But the object of the latter half is not to assign a reason, but rather to praise and recommend tho sūrpa as the means of making the homa and so nothing but the sūrpa can be employed in making the offering. The Veda is the final authority in all matters pertaining to sacrifice; it does not stand in need of giving reasons for its prescriptions but it may eulogise an act to induce people to perform it. Therefore in the hetuvan-nigadādbikarana Jaimini does not lay down (as thought by Mandlik and by the High Court in 14 All, 67, pp. 73, 84, 125) that when a text is supported by a clause containing words of reason, it should be regarded as merely recommendatory (and not obligatory), but what Jaimidi lays down is that clauses containing words generally meaning *reason’ are to be construed as arthavadas (praises) of the obligatory rule contained in a previous clause. Mr. Mandlik says (p. 499 of bis . Hindu Law’). It is a rule of the Pūrvamimamsā that all texts supported by the Assigning of a reason are to be deemed not as vidhi but simply as arthavada (recommendatory). When a text is treated as an arthavāda it follows that it has no obligatory force whatever. Sabarasvamia constructs an adhi karaña on this head which he calls ‘hetuman-nigadādhikarana’ (quoted in 14 All. 67 at p. 73). This is entirely wrong as shown above and the adhi karana is not called ‘hetuman etc.’ but ‘hetuvan etc.’. Acc. to Jaimini’s rule the words of Vas. 15.3 ’naikam putram’ contain a vidbi (an obligatory rule), while the following clause containing the word ‘hi’ (indicative of a reason) ‘sa hi santānāya pūrvesām’is merely an arthavada, which praises the vidbi by emphasizing the importance of a son. Sarkar in his ‘Mimāmsā Rules’ (pp. 175-176) correctly represents the meaning of Jaimini, though in somewhat obscure language, The decisions in 14 All. 67 and 26 I. A. 113 are correct so far as the Mit. and the Mayūkba are concerned, though the judgments in the former case are wrong in what is regarded to be the meaning of Jaimini’s aphorisms constituting ‘betuvan-pigadādhikarana’. The Privy Council in 26 I. A, 113 at p. 146 refer to the supposed rule of Jaimini that all precepta supported by the assignment of a reason are to be taken as recommendations only, but they express themselves guardedly and say that the rule is rather startling and they would not admit it to be true unless tbey made’ an intimate study of the smṛtis. The commentaries will make the Pūrvamināmsā position clear.

B

u oran पतित्तान्तावाख्यान म सातज्ञापनाय किंतहि रोचनायेव । तस्मादेषनिगद Foto grate reftat i mine on . I. 2. 30. The power states देदेनोग्यमान सर्पस्य होमसाधनवं हेतुमपेक्षते वेदस्यता प्रमाणत्वात् । अर्थवादस्वपक्षितः परोचमान । तस्मादपादत्वम् ।

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the pitre’. But in modern times this rule is taken to be only roommendatory and the adoption of the eldest son is held valid as also that of an only son 1978. The V. Mayūkha (p. 108) states: 800, to the Mit. the prohibition to give the eldest son affects only the giver but not the adopter and he criticizes the Mit. that Manu LX. 106 does not forbid the giving of the eldest son, but only provides that by the birth of the first son a man becomes free from debt (to pitrs). So the V. Mayākha goes a step fur ther and holds that there is no prohibition at all either to give.. or take in adoption the eldest son, while the Mit., though it does not hold the adoption bad, seems to hold that the giver incurred blame. The Sam. K. p. 150 also does not allow the adoption of the eldest son. Two or more persons cannot adopt the same boy and if they do so the adoption by each is invalid 1779. The Dvyāmuṣyayaṇa adoption, to be described later on, is an exception.

Who may be adopted

The texts contain rules about preference in selecting a boy for adoption, when several are eligible. The Mit, 1280 on Yaj. II. 132 declares that the verse of Manu IX, 182 stating that when out of several brothers who are sons of the same father one has a son all of them become through that son per sons having a son’ does not provide that he becomes really the son of all but it indicates that when a brother’s son is available

1278. Vide Kashibai v, Tatia 7 Bom. 221, Tukaran y, Babaji 1 Bom, L. R, 144 (for valid adoption of eldest son), where at p. 153 the following passage from the Mayakha is referred to: ज्येष्ठेन जातमात्रेण पुत्रीभवति मानव इति ज्येष्ठस्यैव पुत्रकार्यकरणे मुख्यत्वास न देय इत्ययमपि निषेधो दातुरेव न प्रतिग्रही दुरिस्पपि सः । स्यादर्य प्रतिषेधो वाहुरेव पतस्य ज्येष्ठदाननिषेधकता स्यात् । न तु सास्ति । मानाभावात् । पुत्रीभवतीत्यनेम पुत्रित्वमात्रोक्रया प्रणापाकरणोक्तिमानपरत्वाच्च । अत एवं पितृणामणव स तस्मात्सर्वमईति-इत्युत्तरार्ध सङ्गच्छते । व्य. मयूख p. 108. The same passage of the Mayūkba is referred to in Vyas Chimanlal v. Vyas

Ramchandra 24 Bom. 367 (F. B.) at p. 375.

1279. अपुत्रेणेत्येकत्वश्रवणाचन शाम्यां विभिर्वा एकः पुनः कतग्य इति गम्यते । इस. मी. p. 25.

1280. पहु-भातणामकजातामामेकयुषमाग्भवेत् । सते तेन पुत्रेण पुत्रिणो महर. प्रवीत् इति (मनु. १२) तदपि भातपुत्रस्य पुत्रीकरणसम्भवेश्येषा पुत्रीकरणनिवेधार्थम्, म पुनः प्रबत्वमातिपावनाय तस्मता गोत्रमा पन्धरित्यनेम विरोधात् । मिता. on या. II. 132. The same verse is पसिष्ठ 17. 10 (with variations). ज्यव. नि. p. 440 quotes similar verses of हारीत and हस्पति. Compare पिण्णुध. 1. 15. 42 also. ‘आवतराणा पुषयोक्तिमस्य सात दविषदौरसमशंसा या संग्रहकारेणोक पयेकजाता भयो भातर समोराःएकस्यापि ते जावे सखे पुत्रिणः स्मृताःति सस्प … देव भामिना ज्ञात्वा उका-उभयत्रापि नाम्या प्रतिनिधि कार्यवि मन्येन मतिय.. p. 289. Vide स. वि. p. 39s tor quotation of this passage of तिन

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for adoption another boy should not be adopted. A similar explanation had been given by an ancient commentator Deva. svĀmin. The D. M., D. C. (pp. 5-6 ) and Sam. K. p. 150 quote passages of Saunaka 1981 and Sakala that a man should prefer a sapiṇda or a sagotra to one who is not a sapiṇda or of the same gotra. The D. M., D. C., the Sam. K. p. 150, the Dharma sindhu recommend the following order: the full brother’s son, then a sagotra sapinda, then a sapinda though not of the same gotra (such as a boy from one’s maternal uncle’s line or a paternal aunt’s descendant), then one not a sapiṇda though of the same gotra, then one who is neither a sapiṇda nor a sagotra. This order is purely recommendatory and an adoption in breach of it is quite valid.+++(5)+++ It has been recently held that an adoption is invalid if the boy adopted be congenitally and incurably deaf and dumb though not an idiot. Vide Surendra v. Bholanath I. L. R. (1944) 1 Ca). 139.

Age of the boy to be adopted

As to the age of the boy to be adopted there is great diver gence among the medieval writers which is also reflected in the case law. In this connection certain verses of the Kālikāpuriṇa assume 1282 great importance. The V. Mayūkha and the D. C.

1281. Ergotrat pitong para: 48: I TASAFUTET 29* a * कारयेत् । शौनक, सपिण्डापत्यक व सगोत्रनमयापि वा । अपुत्रको द्विजो पस्मात्पुमतले afta HTTEITH STESETUnTri , both q. by . #. p. 41 and 48, and , 9. pp. 5-6. A comparatively late work called me favelating tugata (composed after about 1700 A. D., since it mentions the दत्तकमीमांसा and संस्कारकोस्तुभ) after an elaborate discussion of Rg. VII. 4. 7-8 and the above passages of Saunaka and Sakala states the following conclusion (D. C. College Ma. No. 133 of 1886-92 follo 16 b) ‘यथा … दाक्षिणात्यैः समर्थित माहलकन्यापरिणयनं … तथा असपिलासगोत्रपरिग्रहोपि पस्मिन् देशे येषां कुलेऽनादिसिद्भस्तेषामेव भाग्येषामिति प्यातिष्ठते’.

1282. fomitato ti 99: #FFT: grueltot i ser #1 #grat TIE चान्यतःोपनयसंस्कारा निजगोत्रेण कृतावतापास्तानयास्ते पुण्यथा दास उच्यते। जर्व तुपशमाहत बसाया सा प । गृहीत्वा पत्रवर्षीय पुत्रो प्रथम चरेत् कालिका gaur q. by F. oft. p. 122, fa. 14. III gatu p. 250, ty, a p. 114, F.T. pp. 31-33 (reado ur future or appeare: are realist),

. . p. 169 (reads a f and spor arr). The cūđā was usually performed in the third year and the locks that were kept on the boy’s head depended upon the number of the gravara sages of the gotra of the father, Vide H. of Dh. vol. II. pp. 260-265 for cūdākarana. So if a boy (who WAS MTW) was adopted after cūça, his position would be this that some frenta would have been performed with one gotra, while others would be performed with another gotra 1. o. he would thus belong to two gotras. . To prevent thia and to complete his affiliation into the adoptive family the patresti bad to be performed.

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History of Dhatmasastra

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hold that the passage is of doubtful authenticity (as the verses are not found in several mss.), while the D. M. and the Nirnaya sindhu hold them to be genuine and the Sam. K. pp. ( 169-172) after referring to these views states that those verses are opposed to what is stated in the Ait. Br. about Sunaḥsepa who was adopted by Visvāmitra as a son even after upanayana. The Verses are:

‘O King1 that son, whose samskāras up to (including) the cuda (tonsure ) ceremony are performed with the gotra of his (natural) father, does not (i. e, cannot) attain the status of the adopted son of another. When the ceremonies of cūda and upanayana are performed under his own gotra (by the adoptive father) the dattaka and the other kinds become (recognised as) sons (in the adoptive family); otherwise they are called dāsa (slave). After the fifth year the adopted son and the rest can not be (recognised as) sons. Having taken one who is five years old, one ( the adopter ) should first perform the putreṣti’.

These verses state four propositions:

1. If all samskāras from jātakarma to cūda (ie, including it) have been performed in the family of birth that boy cannot be adopted in another family;
2. if a boy’s cūdā and other later ceremonies are per formed in the family of adoption he is fully an adopted son;
3. a boy over five years of age cannot be adopted at all;
4. a boy whose cūda has been performed in the family of birth may be adopted up to five years, provided the rite called putreṣti 1283 is first performed in the adoptive family before any other ceremony is performed on the adopted boy.

The D. M. says that the best time for adoption is up to three years, then from three years to five is the next best (gauna) and that after five no boy can be adopted. The D. O. (p. 36 ) holds that a boy of the three higher classes can be adopted up to upanayana and that a śūdra boy can be adopted till his marriage. The Nirnaya sindhu seems to be of the same opinion. The V. Mayūkha 1294

1283. About the gate, the w. mit. p. 132 says ‘wara guru trenger कपाल निषेपेदिन्दाप पुत्रिणे पुरोडाशमेकादशकपालं प्रजाकामः । अग्निरेवास्मै प्रजा प्रजनयति

जानिमा प्रयच्छतीति वाक्ये प्रजाफलकत्वमिटः भूयते । तयारत्यक्षा मजा तत्र तदुत्पत्तिरेव भाग्पा पत्र तूपता परियाते तनोस्पतेरेवाभावासरया: प्रजात्वमेव भाज्यामिति कल्प्यते मकत firgrqargan: 1). The t. p. 173 coatalos the words su … Fiora. Vide . . II. 10 ‘GTAIHEUTAT: goft.

1284. सकस परिणीत उत्पमापुरोपिच भवतीति तातचरणाः। युक्तं बाधका W IE. 19. #. p. 114, When Nilakaotha says that the three verses of the Kalikāpurāga refer to the adoption of an asagotra boy, that is not bis real opinion ; be only concedes that that passage may, if at all, refer to the adoption of an asagotra boy, I TUTUT Furrera att विजातीनापनपालामा सस्पपिादादिलाभारा दल.. p. 36.

“III)

681

and Sam. K. both hold that even a boy not of the same gotra may be taken in adoption after upanayana or after marriage and even when the person to be adopted has himself had a son. In Bengal, Benares 1285. and Bihar the courts hold that the boy must be adopted before upanayana. The same rule holds good in Madras 1286 ; but there it is further held that if the boy to be adopted is of the same gotra as the adopter, the adoption may be made after upanayana but before marriage. In Bombay a person may be adopted at any age, even after marriage and even after he has had children and he may be even older than the adopter. 1387 In the whole of India, a śūdra may be adopted only before his marriage, but in the Bombay Presidency the adoption of a married man and of one having even a child is allowed also among gūdras 1288

1285. Vide Ganga Sahai u. Lekhraj 9 All. 253 (at p. 306 thọ transla tions of the Kalikāpurāṇa verses by Sutherland and Colebrooke aro quoted and at p. 318 the authenticity of tbose verses is held to be extremely doubtful); Raja Mukund v. Jagannath 2 Patna 469, 477 (where the passage of the Kālikāpurāṇa is quoted ), in which it was held that a boy may be adopted till upamayana and that it does not matter if the cūça ceremony is performed in the family of birth and the putreṣti is omitted at the time of adoption ; Chandreshwar v. Bisheshwar 5 Pataa 777 at p. 844 ( where the passage as to five years was held oot binding); vide Surabala Devi v. Sudhirkumar AIR (1944) Cal. 265.

1286, Viraragava v. Ramalinga 9 Mad. 148 (F. B.) for the validity of the adoption of a sagotra after upanayanya and Pichuvayyak v. Subbayyan 13 Mad. 128 for the iavalidity of a married man’s adoption. :– 1287. Vide Dharma v. Ramkrishna 10 Bom. 80, 84 ( where it is said that though Nilakantha’s explanation that the Kalikāpurāṇa verses refer to 20 asagotra causes a difficulty, yet it does not follow that he adopts that interpretation as his own) in which the adoption of a married asagotra brāhmaṇa was upheld ; Kaigavda v. Somappa 33 Bom. 669 where the ‘adoption of a married man having a son was apbeld, but it was decided that ’the son born before adoption remained for purposes of inheritance in the antoral family : Balabai v. Mahadu 48 Bom, 387 ( where the adopted man was older than the adopter), : 1288, Lingayya v. Chengalammal 48 Mad, 407 whero it was held that even a sūdra cannot be adopted after his marriago, (which decision follona the D. C.),682

(Vol. Saunaka required that the boy to be adopted must be pritracchayavaha 1289 (one who bears resemblance to or is a reflection of the aurasa son). This has led to differing explanations by the commentators and contradictory decisions in the several Indian High Courts. The D. M. and D. C. (p. 21 ) both explain that the resemblance consists in the possibility of being pro created by the adopter himself by niyoga and the like. The meaning of the D. M. is: A brother’s son or a sapinda’s son or a sagotra’s son can be adopted because the adopter could have procreated a son by the practice of niyoga on the wife of a brother or a sapiṇda or a sagotra (according to the rules of niyoga); but he could not have done so as regards his mother, or grandmother, daughter or sister or his mother’s sister. There fore a man cannot adopt his own brother, paternal or maternal uncle, a daughter’s son or a sister’s son and the like. One strange thing is that, though niyoga had been forbidden for many centuries before the D. M., the author of it brings in the rules of the long obsolete practice of niyoga 1290 to find out who could or could not be adopted. But stranger things were to happen.

Sutherland who translated both the D.M. and the D. C. explained in his notes the word ’ niyogādina’ as ’ by such an appointment or marriage and the like’. Vide Stoke’s Hindu Law Texts p. 590 ( Dattakamlmāṁsa, sec. V, placitum 16 note). There was no warrant for introducing the word ’ marriage’ after ’niyoga’. The rules of niyoga are different from those of marriage.

The judges most of whom were generally ignorant of Sanskrit and had yet to decide cases among Hindus according to Hindu Law as understood by them ( vide 26 I. A. 113 at page 128 about the ignorance of Sanskrit among judges ) seized upon this explana tion and evolved the curious rule that no one could be adopted whose mother the adopter could not have married in her maiden state (i. e. the relationship has reference to a time prior to

1289. पुषछापा पुत्रसाशनियोगादिना सपमुस्पादनयोग्यत्वं यथा आतुसपि सगोवापिएचस्यान चासम्बन्धिनि नियोगासम्भवः । पीजार्थ बामणः कम्बिद्धनेनोपनि ममयतामिति स्मरणात् । ततध भापितुग्यमातुलदौहित्रभागिनेयादीनां निरासः पुनसा. TATTI… BUT

Frugut baru mai ultor para ENTEN: A ma ! . H. pp. :144-145 and p. 147. The words gu TT … strevent occur in . 7. niso (p. 21). The half verse stone … #YUrt is almost like anfaad 105. 2.

1290. For the rules of niyoga vido H, of Dh. vol. II, pp. 899-601…

MI)

Who may be adopted

683

marriage ). This is still the law in all Presidencies 1291 except Bombay. Although the D. M. stated that the boy to be adopted must be capable of being prooreated by niyoga, at another place it remarks, after quoting verses of Saunaka 1992 and Sakala, that a boy of another gotra may be adopted except a daughter’s son, a sister’s son and a mother’s sister’s son. The Bombay High Court holds that any one may be adopted except these three (vide Rantchandra v. Gopal 32 Bom. 619, Walbai v. Heerbai 34 Bom. 491 holding that a man cannot adopt his mother’s sister’s son, Ramkrishna v. Chimnaji 15 Bom. L. R. 824 holding the adoption of father’s sister’s son valid). Very strange results have followed from this viz. the Bombay High Court has upheld the validity of the adoption as a son by a man of his own half-brother ( vide Gajanan v. Kashinath 39 Bom. 410), of his own maternal uncle’s son, and the adoption by a widow of her deceased husband’s son-in-law ( vide Sitabai v. Parvatibai 47 Bom. 35 ). It should be noted that the Dvaitanirṇaya or Dharmadvaitanir naya 1293 (of Śhaṅkarabhatta, father of Nilakantha) and the V. Mayūkha both hold after a very abstruse reasoning based on several Mimāmsā rules, that men of the three higher classes may

1291. Vide Minakshi v. Ramanada 11 Mad. 49 (F. B.), Bhagwan Singh v. Bhagwan Singh L. R. 26 I. A, 153, 160, in the latter of wbich the texts of Saunaka and Sākala are relled upon.

1292. est sit: 1 … att fira a

i porta प्रये नालि भागिनेयः सुतः कचित् । … तदेतस्पटमाचरे शाकला । समानगांत्रजाभावे पाल. येदम्यगोत्रजम् । दौहित्र भागिनेयं च मातृस्वसततं बिना। इति । एतन भागिनेयपदंदौहित्र. मानवनेययोरपलक्षणमिति स्पष्टमेव सिद्धम् । युक्त पतत् , विरुदसम्बम्धस्य त्रिमपि FATTEITT 1 #. #. pp. 80 and 101, . . p. 8; *. . p. 6 quotes ’s verse. The H. #. elsewhere (p. 98) and the #Fit. p. 158 read urat faitet: En and the #. #. p 176 reads ‘ala mad at Erupt o , wbile the aforora (p. 105) and the r4. Hyp. 110 read if u waan

trift front. q. by the e. f. p. 146 reads of w भागिनेयः सुतः कचित् ।।

1293. Vide the text of the V, Mayūkba p. 111 and notes pp. 173-179 in my edition of the V. Mayūkha for explanation. The Dvaitaalraaya (P. 105) concludes: remuneratie Firma Hu fara No eitt af ufitate I.: The V. Mayūkha p. 111 follow! tho Dvaitanirṇaya and states that usage is in accordance with its explann. tlon: ‘for at foreta hirurot perantara is, In Gopal v. Hanmant 3 Bom. 273 at p. 280 it was held that Nilakantha also interdicted the Adoption of the daughter’s son and of the other two by the tegenerato clists. It is sabuitted that this view ng to the position of the V. Mayūkha on this point la eatirely wrong.

e

It le daughter’s kis held that Noir

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History of Dhormatastra

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adopt a daughter’s son, a sisters’s son or a mother’s sister’s son and that a sūdra must adopt one of these if available in preference to any one else. The Bombay High Court follows the inter pretation of Saunaka’s verse given by Nandapandita in preference to Nilakantha’s, but in its turn disregards the authority of Nandapaṇdita who forbade the adoption of a brother or uncle. It would have been far better if it had generally brushed aside everywhere the dicta of Nanda pandita and preferred the interpretation of the Mayūkha. Popular sentiment is in favour of the daughter’s son or sister’s son being adopted, as they are the nearest and often the dearest relations, and yet the High Court shuts the door against them, while it opens it ajar for the adoption of a brother or maternal uncle or his son or one’s own daughter’s. husband, which appears absurd to people. Besides the High Courts have recognised the adoption even of a daughter’s son 1294 on the ground of custom by Daśastha smārta brāhmapas in the Dharwar District (vide Sundrabai v. Harmant 56 Bom. 298 ), by Telugu brāhmaṇas ( Viswasundara v. Somasundara 43 Mad. 876). Sūdras can adopt a daughter’s or sister’s or mother’s sister’s son all over India. The D, M. went so far as to say that a widow could not adopt her brother’s son. 1295 The D. M. ignored the fact that the widow adopts to her husband ( and not to herself) who bore no relation to his wife’s brother’s wife and who could have himself adopted that son. The Bombay High Court and the Privy Council have discarded this absurd proposition of the D. M. Pannalal in ‘Kumaun Local customs’

us to her

olation to

Almself s

1294, 16 may be noted that the question of the adoption of the daugh ter’s son cropped up even in the times of the Peshwas. In ‘Selections from Peshwa’s Records’ vol. 43 No. 146 pp. 116-117 the opiaion of Rāmsāstri, tho Chief Justice of the Peshwa’s court, is sought on the adoption of a daughter’s son from the Ratnagiri District. The Prthviraja Rāsau stater. that the famous Choban hero Pythviraja had been adopted by bis maternal grand-father Agaigapāla of the Tomara dynasty of Delbi. But modern historians say that this is imaginary (vide ‘History of Medieval India. by Prof. Ishwari Prasad p. 9 n.).

1295. E a : Igor wife fat

i Thai भागिपपदं भानपुरयायुपलक्षणम् । तेन भगिन्या मानपत्रो न मामा । दत्त. मी. pp. 56-57. Vide Bai Nani v. Chunilal 22 Bom. 973, Puttulal v. Pardak 42 1. A. p. 155, where after admitting that the Dattakamimima is embedded in law, the P. C. say that caution is required in accepting the glossas of Nanda Paadita where they deviate from or add to the smrtia : (p. 161)

Dvyamu syāyana adoption

685

notes that in that part of India a daughter’s or a sister’s son may be adopted (p. 14 para 56). It has been recently held that the adoption of the illegitimate son of a woman even among śūdras is invalid. Vide Apya v. Ramakka I. L, R. (1941) Bom. 350. This was relied upon for holding that a woman cannot give in adoption an illegitimate son among Lingayats in Tirkangauda v. Shivappa A, I. R. (1944) Bom. 40.

It is now necessary to pay a few words about the dvyāmu syāyana. A datlakı is of two kinds 1296, kevala (simple or ordinary ) and dvyūmuṣyāyana ( the son of two fathers). When a man gives his only son in adoption to another under an agree ment that he is to be considered as the son of both the natural father (janaka or janaka-pitr) and of the adoptive father (pālaka ), the son so given is called duyāmu syāyana. The Bombay High Court has held that in order to constitute a dvyāmu syāyana an express agreement as stated above must be proved even when one brother adopts the only son of another 1297 A dvyāmusyāyaṇa inherits both in the natural and adoptive families. The word dvyamuṣyāyaṇa was employed in some of

that the Min. Bhimarts. Vide Lea The FT.

1296. 37° Tru: Turca100ml Face THT HIU: 1 HNUTTET

T/ 14. #TE P. 114. The .. (pp. 61,66) employs the word for 49 . Vide Laxmipatirao v. Venkatesh 41 Bom. 315, Huchrao v. Bhimarao 42 Bom. 277. It has already been seen (p. 659 ) that the Mit. employs the words dvyamusyāyana and kṣetraja as synonyms, Nār, (dayabhāga 23) appears to use it in the same sense, *शिरामुण्यापणा वहाम्या पिण्डोदके पूधक। रिक्थादध समादीजिक्षेत्रिकयोस्तथा ॥. In this verse Nār. does not employ the form dvyāmuṇyāyana, but the word āmuzyāyaṇa with the adverb ‘dvih meaning ’twice’. The word dvyāmuṣyāyana is made up of dvi’ (two) and ‘amusyāyana. (issue of this man, issue of so and so). The word āmuṣyāyaṇa occurs in the Tai. - Br, II. 7. 7.7 (Hot A TRALAFAT Stuurort BITI 1917 UNA) and in the Atharvaveda IV, 16. 9, X. 5. 36 and 44, XVI. 7. 8 in the form * āmuṣyāyana amuṣyāḥ patra’. Io the Hir. gr. I. 9. 19 we have Thorar

14. PICAT ATENA, where Mātsdatta explains : Wetur sigrare la Similar words occur in the Bhāradvāja gf. II. 19. Kātyāyana bas vārtika 2 * SITEETIQUtigaught them on Pāạ. VI. 3. 21. Amuṣyāyaṇa’ is formed from ‘amusya’ (of this or that man) in the sense of apatya. acc. to Pāṇiai IV. i. 99 (nadādibhyaḥ phak). In the Abv. Sr, S. (Uttaraṣaçka 6. 13 ) the word dvipravācana’ is employed for dvyāmugyāyana, ’ gafar un qūruciaty: on which Nārāyana explains, o get the Ta

पिवयम्यपदेश्याः यथैते शौशिरा पाहण्यायण शाहपस्य क्षेत्रे शिरेपीजोपचा ** Im.

1297.. Vide Laxmipatiram.o, Venkatesh 41 Bom, 313 and Huchrao v. Bhimaraa 42 Bom. 277,. .. .

I Vol.

ths smrtis as applicable to all such sons as the dattaka,kritains, The V. Mayukha quotes a prose passage from Katyayana (which is attributed to Paithinasi in D. C.) and the V. Mayakha, D. M. and D. C. all quote a verse (which is ascribed to Pravarādhyāya by the first and to Parijāta by the D. M.) that supports this. The D. M. and D. C. both quote two sūtras of Satyaṣadha and Sabara’s gloss (bhāṣya) thereon in which the kṣetroja is called nitya dvyāmuṣyāyana and the dattaka and others are called anitya dvyāmuṣyayapa. Yaj. II. 127 and Baud. Dh. S. II. %. 21 provide that a kṣetraja is the son of both the begetter and of the husband of the wife on whom the son is procreated. Therefore such a son is called nitya dvyāmusyāyana (because he is always the son of two fathers ), When the kṣetraja became obsolete and forbidden, the only dvyāmusyāyaṇa was an only son taken in adoption with a stipulation as described above. About the dattaka Maru IX. 142 states the general rule that the dattaka loses the gotra of his genetive father and assumes that of the adopter. But a dattaka belonged to two gotras according to some, if bis samskāras up to caula were performed in his natural family and the samskāra of upanayana and those that follow were performed in the adoptive family. Therefore it was not a general proposition that a dattaka always belonged to two gotras. If all the samakāras from jātakarma were performed by the adopter, then the dattaka would take the gotra of the adopter alone, Hence the sons called dattaka and ’the bought’ were styled anitya dyyamusyayapas ( who were not in all cases dvyamusyāyanas). The D. M. states this 1299 twofold division of dvyāmuṣyāyanas and employs the words nityavat or nitya and anityavut or anitya

1298, पतु-अथ बसकक्रीतपुत्रिकापुत्राः परपरिग्रहेणानायास्ते इचामुख्यायणा भवति इति चासण्यायणाहपक्रम्य कात्यायमः । ग्य. मयूख p. 115; स. प. p. 46 ascribes this to पैठीनसि and reads ; अथ दत्तकक्रीतकत्रिमपुति… … प्रहेणारेण येऽत्र नातास्तेऽसन्तकुलीमा चामुण्यापणा भवन्तीति ।, चामुण्यायणका ये स्वदंतककीत कादयः । गोप्रहयेप्यहानाहः शोशशिरोधा। q. from प्रबराचाय by य. मपूस p. 118.

1299. द्विविधा इसकादयो भिस्यपद पासण्यापणा भनित्यवदयारण्यापणास त नित्यपाहण्यापणा नाम ये जनकप्रतिग्रहीतुन्यानावयोर पुत्रति संप्रतिपचा। भनित्यापासण्यापणास्तुपे यूवान्तः संस्कारजनन संरकता उपनयनादिभित्र प्रतिग्रहीत्रा। तेषा गोमातापि संस्कतबा चाहण्यापण पर समित्यम् । जातमात्रस्यैव परिग्रहे गोत्र. पेन सरकाराभावात् तस्य प्रतिपदीतगोत्रमेय तदिदं सर्वमभिप्रेत्याह सत्यापाहा ‘मित्यामा पापापणाला.पो.’ इति बोण, निस्पहचाहणायणाना गोमा प्रारसम्बन्धहरला तमेवानित्यम्पतिमिति ‘दत्तकादीनां वाहण्यापणपति पण! मी.. pp. 188-89; vide . . p. 44 for the eu of meer , ****

Dryainu gydyana son

*887

to denote the two varieties and restricts the former only to a son adopted with & stipulation as stated above. The kṣetraja became quite obsoleto many oenturies ago and the courts have held that the anitya dvyāmusyayapa is also now obsolete. 1300. It is now held that every adoption is presumed to be in the simple ( kevala) form, unless a stipulation that the boy will be the Bon of both is proved ( when it will be a dvyāmuṣyāyana adoption).

When a man is adopted in the dvyāmuṣyāyaṇa form, his son born after such adoption has been held to inherit as grand son to the adoptive father, if the dvyāmuṣyāyaṇa son died before the adoptive father. 1300a

Ceremonies of Adoption

The most essential ingredient in adoption is the giving of the boy by the natural father and the taking of the boy by the adopter with the intention to transfer the boy to the family of the adopter. Another requisite (in some cases ) is the homa called dattahonu 1301 which as described by Saunaka and Baud, is given 1302 in the Appendix. It is not necessary that the daltahoma must be performed immediately after the giving and taking, but it may be performed later and its performance may be delegated to others when the giver or taker is a widow or a sūdra or is ill &o. Although in Vedic times women composed hymns and although Hārita and Yama stated that women had the upanayana performed on them and could study the Veda (H. Db. vol. II pp. 293-295), in later times it was held that women could not study the Veda, could not repeat Vedic mantras and therefore could not perform any homa (including dattahoma). Therefore some writers said that a widow could not adopt at all, while others like the V. Mayū. kha said that women are to be assimilated to śūdras and so just as a sūdra can get the dattaboma performed through a brāhmaṇa, so a widow, though she cannot herself engage in homa, may employ a brāhmaṇa to perform the dattahoma, Vide H. Dh. vol. II. pp. 365-368 (for deterioration in the

1300. Vide Basappa v, Gurlingawa 57 Bom. 74, 77, where the two klods of dvyāmasyāyaṇas are mentioned and it is stated that the anitya dvyāmusyāyana is now obsolete.

1300 a. Vide Gaxpatrao v. Balkrishna I. L. R. (1942) Bom, 340. 1301. Tre

Team THIR ATE groeitruntung ET TEMP . p. 161. 1302. Vido Appendix.

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position of women), and note 1262 above and V. Mayūkha quoted below. 1303 It has been held that the dattahoma is not 130 necessary among twice-born classes if the boy to be adopted belongs to the same gotra as that of the adoptive father. Jolly (in T. L. L. p. 160 ) states that the Dattakadarpapa refers to a text of Yama from the Sarasvativilāsa to the effect that homa is not absolutely essential in all cases. From Colebrooke’s Digest V,4 CCLXXIII it appears that Jagannatha held the same view. The Dharmasindhu remarks that in certain countries an adop tion of a sagotra sapinda boy can be validly effected with the mere assent of the giver and adopter without Vedic ceremonies. There is a good deal of conflict in the case law on this point, which is passed over. Among sūdras no homa is necessary. The ceremony of adoption as described by Baud. gr. seṣasūtra II 6. 4-9 ( which is probably the oldest on record and which was the one to be followed by the Taittiriyas or followers of the Black Yajurveda, according to D. M., San. K. p. 177 and the Dharma sindhu p. 161 ) is as follows: When about to take (in adoption) the adopter makes ready (or collects) the following viz. two pieces of cloth, two ear-rings, a finger ring, an acārya ( officiat ing priest) who is well versed in the Veda, a bundle of kuśa grass, fuel sticks of palāśa (Butea Frondosa ). Then in the midst of invited relatives, after informing the ruler, he serves food to brāhmaṇas in the assembly hall or in the middle of the house. He ( the adopter) makes (the brāhmaṇas ) pronounce the benedictions May the day be auspicious! May you fare well! May there be prosperity !’ and performs the acts (usual in all homas) from drawing lines on the altar up to carrying forward the Prapitā water, Vide H. of Dh. vol. II pp. 209-212 for the procedure common to all homes. Then he goes into the

1303. veginn der Tania gaut LFHIBIT MOVIE F***TH A for rit … war suit TATT: I

1717 FURU 41*TCI . #Y# p. 112 (text). Vide H. Dh. vol. II. pp. 594-595 dotes 1392-1395 for other texts treating women (of higher castes) and sūdras alike.

1304. Vide Valubai v. Govind 24 Bom. 218, Bal Gangadhar o. Shrinivas 39 Bodi. 441 (P. C.), Govindayyār u. Dorasami 11 Mad. 3 (F.B.); Muthuvayyangar v. Thiruvangadammal I.L.R. (1942) Mad. p. 682. सिपाबमासम्भवस्तथापि व्रतादिवहिमहाराहोमादिकारयोदिति हरिलाधादयः। सम्बन्ध

परवेप्पेयम् । एवं वस्यापि पीयवा सर्माणत सतेःअत एव बकरकहोमी पिनवारव

· Arcati furopa III quis p. 249; dinara furia primaria संमतिराजपालमत्याविलौकिकव्यापारमाणोपनयमादिसंस्कारकरणमात्रेण च समोर सपिण्डे पुत्वसिदिन्यवहारोपपता मूखमोपलम्पते। धर्मसिओ p:158.

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presence of the giver and begs of him ‘give me your son’. The other one (the giver ) says “I give’. He (adopter) then takes hold of the boy with the words ‘I accept thee for the continuity (of my family). Then he decks (the boy) with the pieces of cloth, the ear-rings, the finger ring and performs the acts from laying fuel sticks round the altar up to the offering of oblations into fire ; he offers boiled rice into fire with the mantra ‘yastvā hṛda’ (Rg. V. 4. 10 or Tai. S. I. 4. 46. 1) as a puronuvākya 130$ (prayer of invitation) and with the mantra ‘yasmai tvam sukrte’ (Rg. V. 4. 11, Tai. S. I. 4. 46.1) as a yajya (prayer of worship or offering). Then having offered oblations of clarified butter with the vyāhrtis 1306 he performs the acts from the offe ring to Agni Sviṣtakst down to the giving of the cow and pre sents. He (the adopter) gives as dakṣiṇā (fee) to the priest these very pieces of cloth and rings (with which the boy was deoked ).

The procedure laid down by Saunaka, who appears to be much later than Baud., is somewhat different (though there is a good deal common to both ) and is meant for the students of the Rgveda (acc. to Sam. K. p. 175). A few salient points may be noted. The adopter should fast the previous day, he sbould offer madhuparka to the officiating priest, should perform all the details from the placing of fuel sticks on the fire up to the purification of clarified butter with the blades of kusa grass, The giver recites (when begged) the five verses beginning with ‘ye yajñena’(Rg. X. 62. 1-5) and the adopter holds the boy with both hands while repeating the mantra “devasya tva’ (Aśv. gr I. 20. 4), mutters the çkangad-angad’ ( quoted above on p. 641 12.1202) and smells the boy on his head. The adopter offers boiled rice with Rg. V. 4. 10, X. 85, 38, X. 85. 41-46. A much more elaborate procedure is set out in the V. Mayūkha (pp. 120-12% text) and the Dharmasindhu (III pūrvārdha pp. 160-161).

The results of adoption Adoption has the effect of trans ferring the adopted person from his natural family into the adoptive family. Adoption confers upon the adopted person the same rights and privileges in the family of adoption as the son

1305. For tbe meaning of Puronuvākyā and Yājyā, vide H. of Dh. vol. II. p. 1060 3. 2372 and pp. 1058-59 respectively. For the offering to Agni Sviṣtakst vide H. of Db, vol. II. p. 208 and appendix p, 1257 n. 481.

1306. The vyāhrtis are the mystic syllables bhūḥ, bhuvaḥ and svah. The offerings will be accompanied with these syllables as follows: ‘om bhūh svābā’, om bhuvah svābā’, ‘om svaḥ svābā’, ‘om bøūr bhuvaḥ svab avāba,

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of the body (aurasa) except in a few well defined cages. The basic text on this point is that of Manu 1307 IX. 142 which may be literally rendered as follows: “The son given should not take tbe gotra (the family name) and the wealth of his natural father; the pinda (the cake of boiled rice offered to deceased ancestors in sraddhas ) follows the gatra and the wealth ( i. e. is invariably concomitant with them); of him who gives (his son in adoption) the svadha (obsequial rites) ceases (so far as that son is concerned)’. The preceding verse (Manu IX. 141) states that the adopted son takes the wealth of bis adoptive father and all that this verse says is that, after adoption, the son given in adoption does not take the name of his natural father and has no right in the wealth that then is the natural father’s and that he does not perform the obsequial and śrāddha rites for his natural father. But from this verse a learned Hindu Judge derived the sweeping proposition that ’the theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and maternal line, and his complete substitution into the adopter’s family as if he were born in it’. There is no warrant for the idea of complete severance emphasized bere. This dictum was followed in many cases and was accepted by the Privy Counoil 1308 Another great Judge went so far as to

1307. nartu moga TE FTA: masturi foort van Tom: F # AL IX. 142. The Mit. on Yāj. II. 132 and V. Mayūkba p. 115 road. WE TOTA: F’. But this reading makes no change whatever in the meaning, since in ancient sūtras and smstis, the roots ‘bhaj’ and ‘hr’ and derivatives from them are used promiscuously in the same sense with regard to gotra and riktha. Vide the words gotra-bhājah and riktba-bhājah cited above (on p. 650 ) from Baud. Dh. S. II, 2. 36-37 and Gaut, 28. 30-31, the words’ rikthar bhajeran’ (in Gaut, 28. 19) and ‘rikthabhāk’ (in Gaut, 28. 26), Vas. 17. 84 (tayoralābhe rājā haret), Yaj. II. 132 (ftruer ) and II. 138 (artist), regsure 15. 40 ( 146T: #fouerei). Even “apaharet’ which ordinarily means should steal or take away’ is used by Yaj. II. 138 only in the sense of sbould take or claim’. Manu (IX. 153 and 154) employs the words ‘haret’ and ‘adadyat’ in the same sease. Vide also for (in Madu IX, 155 ) and it (in IX. 192). Therefore the learned Judges in Dattatraya v. Govind 40 Bom. 429 and la Bai Kosarba v. Shivsangji 34 Bom. L. R. 1332 (at pp. 1340-41) nonecessarily enter into a long discussion on baret’ and ‘bbajet’ and the several trans lations of these words by Golapchandra Sarkar and others.

1308. Vide Uma Shunker Moitro o, Kali Komnul 6 Cal. 256 (F. B.) at p. 260. Vide Kali Komul v. Uma Shunkur L. R 10 1. A. 138, 149 for ’the acceptance by the P, C. . .. . . . . … * ..

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say that ‘an absolute adoption appears to operate as birth of the boy in the family of adoption and as civil death in the family of birth, having regard to the legal consequences that are incidents of such adoption o1309. But then the P. C, felt that matters were being carried too far and administered the warning 1310 that “As has been more than once observed the expressions ‘civilly dead or as if he had never been born in the family are not for all purposes correct or logically applicable but they are complimentary to the term ’new birth’.” We have to see what construction was put upon the verge of Manu by authoritative digests. The V. Mayūkha explains Manu IX. 142 and arrives at the conclusion that the four words gora, riktha, pinda and svadhū are not to be taken literally but they are only used to indicate all those consequences only in relation to the natural father and the like that are brought about by their connection with the piụda and the verse of Manu conveys the cessation of all those consequences only. It further adds that the son on being given away in adoption ceases to have similar relationship to his brother, paternal uncle (in the family of birth). It should be noted that the V. Mayūkha does not say that the son given away is dead to the family of birth or ceases to have any connection whatever with the members of the family of birth, but restricts the cessation of relation to the offering of piṇda and the taking of the estate after he is adopted. The D. M. quotes 1311 the Sm, C. (II. 289 ) and holds that by the gift the adopted son ceases to have the same gotra as the giver. The D. O. (pp. 23-24 ) states 1312 the same proposi tion, without naming the Sm. O. The learned Judges who had to decide cases of adoption, even if they knew Sanskrit, do not generally appear to have consulted authoritative works other than the few that had been translated and were quite unaware as

1309, Per Sir Asutosh Mukerji 1. in Birbhadra v. Kalpataru 1 C. L. 1.388 at p. 400 (where Manu IX, 142 is cited in the original for this).

1310. Vide Raghuraj Chandra v. Subhadra L. R, 55 I. A. 139, 148 followed in Martand o. Narayan I. L. R. 1939 Bom. 586 (F. B.).

1311. पतेन पुत्रत्वापाकक्रिययेव दत्रिमरप प्रतिग्रहीतृधने स्वत्वं तत्सगोत्रच भवति । पातपने दामादेव पुत्रवनितिद्वारा निमस्य स्वत्वनिभिर्वातगोत्रनिसिभ भवतीत्युच्यते The Fiu I . #. pp. 163-164. The words quatre … HEATH

eft occur in the afat. II, p. 289.

1312. #97 A Tuftet… FOUT Paigaaram inter guerrero बारात्रिमय सत्पनिहातितमोप्रनितिश्र भवतीत्पुण्यते । तथा गोत्रादिनिारेष दर्सना संविधतान पितति स्मरणात् प्रणानन्तरसंभाग्यमामा पप सकस्य संस्कार

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to whether even the cessation of the pinda and gotra and of the right to wealth when a son was given away was so universally accepted by the leading Dharmaśāstra works as they thought. The Sarasvativilasa (p. 394) quotes a text of Viṣṇu 1313 that even the adopted son should perform the obsequial rites of the natural father and explains that Manu IX. 142 applies when the natural father has no issue at the time of his death. Rudraskanda on Khadira gr.III. 5. 16 says the same. Kamalakara, the author of the Nirṇayasindhu 1314 and a first cousin and contemporary of Nilakantha expressly states that Manu IX. 142 only applies when the natural fathor has a son or sons (other than the one given away) and quotes Katyāyana and Laugākṣi cited in the Pravaramanjari (p. 146) in support. The Dharmasindhu1315 also says that when a boy of another gotra is adopted after his upanayana is performed in the family of birth or when only the upanayana is performed by the adoptive father, the adopted boy should repeat both gotras at the time of bowing at the feet of elders or in brāddha and other rites; but when all the cere monies including the cūda are performed by the adoptive father then the adopted boy has only one gotra (viz. that of the adopter ).

The plain meaning of the verse of Manu (IX. 142) is that when a man gives away his son in adoption, then that son is transferred into another family, does not perform the sraddha and similar rites for the giver and cannot claim to take the wealth of his natural father as a son on the father’s death or demand a partition from his father. The other son or gons

1313. भाग्य-गोत्ररिक्थे … … स्वधा-इति मनुवचमा दत्रिमस्य स्वजनकगोनसा पिण्मयोनिरसी कथं दनिमोपि जनपितः स्वधा कुर्यादिति विष्णुपनमिति चतुज्यते । सतु बभिमजनकस्य सन्तत्यभाये विवग्यम् । स. वि. p. 394 : तथा वत्तानोपि जमपिता पुत्रा. तराभाष पवमायोपियोइयो। पुनःनिमस्कन्द on खादिरगुहा III. 5.16. ____1314. इसका जनकस्य पुत्रायभाषेदपान तत्सरचे गोत्ररिक्थे…स्वधेति मनूतः । इदं जनकस्य पुत्रसरताविषयम् । एतच्च परमवी कात्यायनलोगाक्षिम्यो स्पटकम् । भय ये दसक्रीत … चामुण्यायणा भवन्ति … भवन्तीत्यादिना इयोः पित्रोः प्रवराहक्त्वात ‘अथ पोषो स्वास भार्यास्वपश्यं न स्यानिक्थे हरेपुः पि ग्यात्रिपुरुषं वपर्यभपोर्न स्याभाम्यामेव परेकस्मिन भावे प्रथाविश्य छापडकीवित्परिग्रहीतार चोत्पादयितार चा एतीपापुरुषारत। नि. सि. III उत्तरार्ध p. 389, The passage quoted occurs on p. 146 of the मरमखरी. This passage is quoted in the ग्य. म. p. 115 also. Videnote 1298 above for a portion of it. The दि.ता. folio 127 says ‘गोत्ररिक्ये…

सा जमकरण पुषसले तदभाव जमकस्यावि रिक्थहरा पाखदमाता कातीयलोगा शिअप … भवन्ति।

1315, परपोत्रोत्पावसकरपोपनयनमाचे पालकमोत्रेण ते उपनयनोत्तर मतिमा इसकेमाभिवादननाबादिक गोपापोवारकाः । पूवादिसंस्कारे पालन ते पास बैंकणोध पर धमसिना पूर्ण p. 161,

· Results of adoplion

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of the giver are to perform the srāddhas for the father and to suoceed to the family wealth. But this verse has been twisted by some High Court decisions to yield another rule. Suppose A, a Hindu, has an only son B. On A’s death B takes the whole ancestral property as the only surviving co-parcener and then B is given in adoption by his mother to X. Suppose B has a daughter C born to him before his adoption to X. Does B forfeit the estate taken by him as the last surviving male with the result that on B’s adoption to X his daughter O takes the estate ( which had already vested absolutely in B) as if he was dead in the family of A. The Bombay High Court has held in two decisions that on B’s 1316 adoption to X in the above illustration he loses or forfeits the property he took as the last surviving co-parcener in the family of A and his daughter C would take the estate of B as if he were then dead ( though he is actually living ). The result of these decisions is that the verge of Manu is construed as laying down that though a man may have been absolutely entitled to certain property as a member of one family, on his adoption into another family he loses that estate which then passes on to his heir as if he had died on the day of adoption. This construction of the verse of Manu has not been accepted by the Madras and Calcutta High Courts, 1317 which hold that an adoption does not divest any property which has Vested in a man previous to his adoption into another family, It may be noted that the Bombay High Court itself gave a deci sion 1318 which is inconsistent in principle with the two decisions

1316. Vide Dattatraya v. Govind 40 Bom. 429 (where Manu IX. 142 is relied on for this proposition at pp. 433-434 ) and Manikbai v. Gokuldas 49 Bom. 520.

1317. Vide Venkata Narasimha v. Rangayya 29 Mad. 437 ; Benari Lal v. Kailas Chunder 1 C. W. N. 121 : Shyama Charan v. Sricharan 56 Cal. 1135.

1318. Vide Mahableshwar v. Subramanya 47 Bom. 542. In Manik. bai v. Gokuldas 49 Bom. 520 ( at p. 525 ) both the cases viz. 40 Bom. 429 and 47 Bom. 542 are apparently quoted with approval, but it is extremely difficult to reconcile the last two cases. If on adoption a separated copar. cener is not divosted of the estate already takea by him at a partition because the share taken by bim cannot be said to be the estate of his Datural father withio the meaning of Manu IX. 142, the estate taken by a sole surviving co-parconer also cannot be divested by his subsequent adop tion, because at the adoption it bad ceased to be the estate of his natural father long before the adoption, because when a co-parcener dies his rights lapse to the other co-parceners and because the root cause of being entitled to partition and taking as surviving coparceper is the same viz. the birth right of a son under the Mitaksara. - .

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cited above, when it held that where a father and his four song partitioned ancestral family property and one of the song was subsequently given in adoption into another family, the son 80 adopted was not divested by the subsequent adoption of the property already taken by the son on partition. In a still later case the Bombay High Court approves of its first decision in 40 Bom. 429 and observos : 1319 ’the verse of Manu refers not only to the riktha of the natural father but also to the gotra of the natural father. It is quite clear that the gotra of the natural father is vested in the son by his birth. The gotra so vested in the-son ceases after the son is given in adoption. It is difficult to understand why the riktha which is spoken of in the same manner as gotra in the verse should not cease by the entire cessa tion of connection with the natural family. The gotra and riktha are inextricably joined together in a dvandva compound and it would follow logically as well as grammatically that the adopted son must lose both together and cannot lose the former and keep the latter.’ In this passage the premiss that there is entire cessation of connection with the natural family is entirely wrong as has already been shown and will be shown a little later on. The adoptee’s connection with the gotra of the natural family does not cease for all purposes at all. Therefore the reasoning of the passage quoted above is entirely misconceived and is further opposed to two well known rules of the Mimarsi evolved for the construction of texts. On: the interpretation given to Manu IX. 142 by the Bombay deci sions that verse lays down two rules (vidhis ), viz. (1) a person adopted into another family will not take the wealth of his natural father or any one in that family after adoption; (2) that a person adopted into another family loses or forfeite on adoption wealth that he may have already taken absolutely in the natural family as a member of that family before adoption. These are two entirely different propositions and the rule of mimamsā is that one and the same sentence 137 should not be construed as laying down two rules (vidhis) applicable to diffe rent sets of circumstances. To so construe a text is to be guilty

· 1319. Vide Bai Kesarba o. Shidsangit 34 Bon. L. R. 1332 whicb accepts na haret’as meaning ‘shall not take’, and quotes on pp. 1341-42 the D, M., D. C. and V. Mayūkba on this verso, The P. C. decision in Raghu Raj Chandra v. Subhadra L. R. 55 1. A. 139 does not approve of 40 Bom. 429 48 regards the exact point of decision vis. the forfeiture of. property already weated before adoption. "

1320. Whentrat in roman - De 381 on . II. . 16. -

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of the fault of vakyabheda (splitting up of a sentence 80 as to yield two distinot rules). The. V. Mayūkha construed Manu IX 14% so as to indicate only one sense and avoid the fault of vākyabheda on the analogy of two examples discussed in the Pūrvamimāṁsā 1321 works, but if the reasoning of the Bombay High Court were followed the same fault to avoid which Nila kantha strives hard would be committed. There is another mimāṁsā rule 1822 which will be violated by the Bombay High Court’s interpretation of Manu IX. 142 vix, when an already existing thing or entity and something to be accomplished or brought about in future are spoken of together in a sentence the thing already existing or accomplished is mentioned simply for the sake of the thing to be accomplished. The aocomplished fact is adoption itself. Manu who mentions adoption or the adopted son which is an accomplished entity also mentions along with it the taking of property (rikthaharana); hence that taking must have reference to the future bringing about and not the undoing of rikthaharana which had already taken place long before.

That the gotra of the natural family persists in some matters even after a person is adopted is made clear by the digests. The Sam. 1323 K, (p. 182) says that every dattaka must, when entering on marriage, avoid the gotra of his natural as also of his adoptive father. The Dharmasindhu (III. p. 161) says the same and states that the prohibition against marriage

f

1321. TU REw: intarestery Parfumate, que अर्धमन्तवेदि मिमोस्पर्ध बहिदित्यनेन देशविशेषो लश्यते सपात्र गोत्ररिक्थपिण्डस्वधा पदजनकादीना पिण्डसम्बन्धमयुक्त कार्यमा लक्षयित्वा समितिहरयते । तेन सोदरपितुण्या

rufrufen for fat 17. Ta p. 115. Vide my notes to V, M. pp. 189-191 for explanations. Jai, (III. 7, 13-14) deals with the 2nd example, The bhāṣya of Sabara and the Tantravārtika explain how there will be vākyabbeda if the sentence (ardham &c.) is literally construed.

1322. Yourport sporurar u on $. III. 4. 40, p. 976 ; बम्पदेषतं हि भूतं भाषषितम्यो यजत्यर्थः । भूतमग्पसहचारणे च भूतं भम्पायोपदिश्यते। ATT OD 8. IX. 1. 9 p. 1652 ; et pouruluraava a o ut for at fineste with PATTISTETTY on #. IV. 1.18 p. 1207. This is called -

harrapate in the main on III. 4. 24 aad II. 1. 12 and it bas been employed elsewhere by the magiche (p. 111 text). TT very frequently employs this maxim ; vide e. 8. on #. II. 1.4.

1323. fe rier ifra forretnt:

firmyrit t hanya

mt. p. 182; Art an aru समोरपि पिचोनापारसम्बग्मिनी कन्या वर्जनीयाना सासपोवई पासपोररमिरवे goTTA T radi waffermy III ga po 161.. : …… . … .

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(Vol.

The Dihibition families

with a girl of the gotras of the natural and adoptive fathers is absolute and not restrioted to saven or five degrees. Thus if there is no total or absolute cessation of gotra relation with the natural family for all purposes there is no reason why in the Case of wealth already taken before adoption there should be a cessation or forfeiture or why the cessation of relation as to riktha should not be restricted to the future. As regards sapiṇda relationship there is some conflict among the digests. The D, M. 1234 states that the dvyānusyāyana has to observe the prohibitions against marrying a sapiṇda girl up to three degrees in the families of the natural father and of the adoptive father, while the simple dattaka has to observe sapinda rela tionship based upon the presentation of rice balls in the adoptive father’s family for three generations (since the adopted son can generally have no particles of the body in common with the adop tive father) and in the natural family sapinda relationship based upon particles of the same body for seven generations. The Nirnayasindhu (III. pp. 290-291) sets out the various conflicting views and gives it as its own opinion that the sapinda relation ship must be looked to in marriage up to seven generations in the natural as well as in the adoptive family (in the latter it being based on the offering of balls of rice). According to the V. Mayūkha (p. 119) the simple adopted son has sapiṇda rela tionship in the adoptive father’s family for seven generations and in the adoptive mother’s family for five generations and it seems to hold that there is no sapinda relationship in the natural family ( owing to Manu IX. 142). The D. C. (pp. 61 66 ) appears to hold that the dvyāmuṣyāyaṇa has to observe sapiṇda relationship (as stated in the D. M.), while as to the simple dattaka there is sapipda relationship only in the adop tive family for seven generations (as indicated by Manu IX. 142 ). The Dharmasindhu (III. p. 161) states that sapinda relationship depends in its degrees on the question whether the adoption is made after upanayana in the natural family or be foro upanayana or whether all samskāras from jatakarma are performed in the adoptive family.

1324. feqe fag Thorninum ar r egramaroron form इन सपिण्डीकरणानिधानाइ । धुवकरप तु प्रतिग्रहीतकुले त्रिपुरुषं पिण्डान्वयरूपं सापि जनककुले सासपौरपमवपवान्परूपमेवपलं प्रपत्रोनदा मी. p. 1875 मम । पालकाले एकपिण्डदानक्रियान्वयित्वरूप सामपौषमेव सापि, बीजिमोति मोलमोले fugit pa ft. FF. III god p. 291. … … ..

DIE J

:. Results of adoption

897

:: The Bombay High Court 1325 has held that the adopted son cannot marry within prohibited degrees in the natural family, that to that extent an adopted son cannot be considered as not to have been born in his natural family and that the sapinda relationship is recognized in both the families for the purpose of prohibition of marriage. - The Nir, 8., the Dharmasindhu 1326 and the D. O. pp. 48-49 declare that the adopted son can perform the sraddha of his natural father if the latter has at his death no son or other qualified person to perform it. The Nir. S. and the Sar, 1327 K. (pp. 185-186)- both say that the adopted son has to observe three days’ mourning on the death of the natural father and vice versa; but the D. M. and D. O. (p. 68 ) differ and state that the simple adopted son has to observe no mourning for his natural father or other relatives in the natural family. If a married man having a son is given in adoption (which is possi ble in the Bombay Presidency) the son (born before the adop tion) remains in the natural family and does not acquire the gotra and rights to property of the family into which his father is adopted. Yet the father who has gone into another family by adoption has been held to retain his right to give in adoption his son who was born before his own adoption and who remains in the natural family 1328

From the above discussion it follows that the person adopted retains the tie of blood with his natural family ( 80 that he cannot marry a girl within the prohibited degrees from that family ), the samskāras already performed in the natural family are not repeated on him after adoption, he still-retains the gotra so far that he cannot marry a girl having the same gotra as his natural father and further he has according to most writers to observe mourning for his natural father. Therefore it is clear that the severance from the natural family brought about by adoption is only partial and restricted to piṇda and riktha

1325. Vido Bai Kesarba v. Shivsangji 34 Bom. L. R. 1332 at p. 1352 đöd Basappa v. Gurlingawa 57 Bom. 74 at p. 81. . 1326. un neat manfaa: “Te gute Ei जनकपालकयोरुभयोः पित्रोः सन्तस्थभावे दत्तको जनकपालकयोभयोरपि धनं हरेत, मार्च ey safr a : gli affrey III JUTT p. 371.

1326. बत्तक्रीवकत्रिमादिषु अहीमवर्णगाह बी सपिण्डखेपि प्रसवे मरणेच पूर्वापरपित्रोईन बिराममेव न दशावादि। … पितृमरणेपि बत्तकादीमा निराधम् । नि.सि, II रा p. 524 अक्तकस्य जनककुले परस्परमशोब मारपेय। गोपिणानिया शोधनियरसिलाद बचाहण्यायणस्प दूभपौवासोचमिति । वंच.. P. 68; …

1327. : Vide Martand o Narayan I. L. R. (1939) Bom. 586 (?, B.

698

(VoL and connected matters and not complete as stated or assumed in some deoided casen.

The adopted son is entitled to inherit in the adoptive family as fully as if he were a natural born son i. e. he may inherit not only to his adoptive father, but also to that father’s brother or cousin if the latter have no son or no other nearer heir. The adopted son also inherits to the adoptive mother and her rela tions 1339 viz. her father and brother. Conversely, the adoptive mother and her relations in her father’s family are entitled to inherit to him.

Vas, and Baud. both laid down that if after a son is taken In adoption an aurasa son is born to the adoptive father the former takes a fourth share. There is confict among the smftis and the digests about the share of the adopted son when an aurasa is subsequently born, and about the meaning of ‘a fourth share’. The Dayabhāga. (X. 13 p. 148) and V. C. p. 150 quote a verso of Katyāyana 1330 that when an aurasa son is born, other kinds of sons, if of the same caste as the father, take only a third of the estate. It has been held in Bengal that in these circumstances the adopted son takes one third of his adoptive father’s estate. In Benares and among Jains 1331 the adopted son gets one fourth of the estate. The S. V. p. 393 holds that he gets 1332 7th. In Bombay it 1383, has been held that the adopted son takes not 7th of the whole estate, but ith of the share of the aurasa son i. e. Ith (the aurasa son taking $ths). In Bombay the same rule applies among śūdras. 1334 But in Bengal and Madras it has been decided, relying on a passage in the - 1329. a ut HOT fa sfarsitent APT affat gø formarvey Trang HATHAITI 4. t. p. 198; N F sinetron ATRO forum for I TU, P. 61. Vide Dattatraya v. Gangabai 46 Bom. 511 for the proposition that an adopted son is competent to inherit the property of his adoptive mother’s ancestors.

Watert: Fa: 1 front shop UTF161 fra H TTT. q. by TTT X. 13. p. 148. r. f. p. 150, thiau P, 80. Vide noto 1234 for various readings and Kaut.

*1931. Vide Rukhab v. Chunilal 16 Bom. 347 (holding that among Jaids Ad adoptod son is entitled to 4th of the estate of the adoptive father when an aurasa son is subsequently born). ‘.

1332, T ruya! i et A q uing to want to.. नामस्म पोशा समवेन परिकल्पते बचल्योशा पधमाश इस्पर्थः । स.वि. p. 393, .

1333. Vide Giriappa v. Ningappa 17 Bom, 100 (where the texts ara Ahaustively roviewed by Telang 1). Bala Krishnayya o. Venkata 43 Mad 398, 403 (whero Kāt., Vas. and Band, aro roferred to).”

1334, Vido Tukaram 6. Ramanandra 49 Bom. 672 (hold that among Asdru ap adopted son taket oud fourth of the natural bord son’s share);

II)

Adopted son and aurasa son

699

Dattakaoandrika (p. 98)1335 that the adopted son and the subge quently born aurasa son of a sūdra share equally. 1336 If the estate is impartible property or an estate to be taken by lineal primogeni ture and the owner first adopted a son and then he had an aurasa son, it has been held that the subsequently born aurasa son takes the whole estate. 1337 If there are two brothers who form a joint Hindu family and one of them has a natural born son and the other adopts a son, the adopted son of one brother gets on partition a share of the family estate equal to that of the natural born son of the other 1338 brother, since the rule of Vas. applies only as between the aurasa and dattaka sons of the same man. 1338a

1335, ***94-9994 tersa erfarnicht fog feFuture wat #HOT # pealt rayu ga utri . . p. 98.

1336. Vide Asita w. Niroda 20 C. W. N. 901: Perraku v. Subba. rayudu L. R. 48 I. A. 280 (equal share among sūdras).

1337. Vide Sahebgouda v. Shiddangouda I. L. R. (1939) Bom. 314 (F. B.). Manu IX, 163 would support this decision,

1338. Vide Nagindas v. Bachoo L. R. 43 I, A. 56 where a passage of the D. C. is explained (at p. 65) which is as follows: yfi sempre सत्ये सतपितकस्य वत्सकपौत्रस्यापि दत्तोचितांशभागित्वं तदसचे सर्वहारत्वमपीति । म पौत्रस्य स्वपितुयोग्याशभागित्वनियमात् दत्तकस्प ग्रहीतुः पितामहौरससचे तापितम्य तल्यस्येवांशस्य तयोग्यस्वाइसकपोत्रः पिढग्यतुल्यमेवाशं लभतामिति वाच्यं, पुत्रस्य इसकते चतुर्थाशः पौत्रस्य तथाले समानांश इति वैषम्यात् । ततश्च स्वसमानरूपस्य पिनराशा Fre

Falugaratga va T FTY 7. . pp. 89-90. 1338a. It appears to me that the V. Mayūkha went far beyond the spirit of the ancient smrti texts and of most of the medieval digests when it allowed the adoption of a married man or even of one who had already had a son. The son to be adopted, it was declared by Saunaka and others, abould be a reflection of an aurasa son. Therefore he must be adopted at ad age when by proper training and environment he will come to eotertala towards the adoptive parents the same feeling that an aurasa son bas. Hence it appears to me that the Legislature should intervene and provide that no one can be adopted after his upanayana, or at all events after his marriage, in the datural family. It is natural for a sonloss man or a widow to feel, apart from religious considerations, the necessity of a young person o a solace, security and help in old age, and to adopt a person. Even la England by the Adoption of Chidren Act (16 and 17 Goo. V. chap. 29) the adoption of a minor is now allowed after observing cortain formalities, Further, ao adoption by a widow who has sot bocomo major according to the ladian Majority Act should be held valid. An agreement or a transfer of the smallest property by a person who is a minor according to that Act is bald to be absolutely null and void. There is no reason why an adoption by 4 widow of 15 or 16 should be uphold when that adoption diventa her of al (or now half of the property of the husband held by her. - : , ;