Patna High Court
Mt. Saraswati Kuer And Anr. vs Debendra Singh And Anr. on 17 January, 1956
Equivalent citations: AIR1956PAT340, AIR 1956 PATNA 340
JUDGMENT Rai, J.
1. This appeal by the plaintiffs against the judgment and decree of the Additional Subordinate Judge, 3rd Court, Darbhanga, arises under the following circumstances, one Rai Babufam Singh alias Babulal Singh resident of village Shafipur Barua, district Darbhanga, had three wives. From his first wife he had a son, Kali Prasad Singh, who died during his lifetime leaving behind his widow Mt. Abhiraj Kuer who is plaintiff 2 in the present suit.
Rai Baburam Singh had two other wives namely, Mt. Rewati Kuer, defendant 2, and Mt. Saraswati Kuer, plaintiff 1. On 21-1-1907 Rai Baburam Singh alias Babulal Singh executed a registered will (Ex. N) by which he permitted Mt. Rewati Kuer, his second wife, and Mt. Saraswati. Kuer, his third wife, each to adopt three sons successively, one in absence of another in case he did not adopt any son to himself in his own lifetime. By that will Rai Baburam Singh made some other provisions in respect of his properties but it is not necessary to narrate the same at this place.
On 26-4-1923 Baburam Singh died without adopting any son to himself. On 21-2-1924 Mt. Rewati Kuer and Mt. Saraswati Kuer made a gift of some of the properties left by their deceased husband in favour of Mt. Abhiraj Kuer by a registered deed of gift (Ex 9). On 30-4-1926 probate in respect of the will left by Rai Baburam Singh alias Babulal Singh was granted to his two widows Mt. Rewati Kuer and Mt. Saraswati Kuer. On 11-8-1942 Mt. Rewati Kuer executed a registered document in which she asserted to have adopted one Mahendra Singh.
Soon after the execution of that document Mt. Saraswati Kuer and Mt. Abhiraj Kuer filed T. S. 66/42 for a declaration that Mahendra Singh had not been legally adopted by Mt. Rewati Kuer. On 31-5-45 T. S. 66 of 1942 was decreed as the factum of adoption of Mahendra Singh in accordance with Hindu Law had not been established. On 6-6-45 Mt. Rewati Kuer adopted Devendra Singh, brother of the said Mahendra Singh. After this adoption, Devendra Singh was given the name of Awadhesh Kumar Singh. In proof of such adoption she executed a registered deed of ekrarnama dated 9-6-45 (Ex. A).
On 21-8-48 Mt. Saraswati Kuer, plaintiff 1 & Mt. Abhiraj Kuer, plaintiff 2, instituted the present suit for a declaration that Devendra Singh defendant 1, was not adopted by Mt. Rewati Kuer, defendant 2, as the dattak son of Rai Baburam Singh, and that such an adoption even if made was invalid in law, and that defendant 1 had acquired no valid title to the properties left by the said Rai Baburam Singh alias Babulal Singh. In their plaint the plaintiffs alleged that defendant 1 was never adopted and no ceremony of adoption was ever performed.
It was further alleged that Rai Baburam Singh was governed by Mithila School of Hindu Law, and the authority given by him under his will to his widows to adopt was invalid. Hence, defendant 1 could not have been validly adopted by defendant 2 in the dattak form of adoption. It was further alleged that Rai Baburam Singh had during his lifetime made Jagdish Singh, one of his gotias his kartaputra after which the power given to the widow to adopt came to an end. The plaintiffs further alleged that defendant 1, who was the son of Mt. Aloka Kuer, daughter of Mt. Lily Kuer, who is sister of defendant 2 could not have been validly adopted in dattak form as son of Rai Baburam Singh.
2. The suit was contested by the defendants who pleaded, inter alia, that defendant 1 had been validly adopted in dattak form by Mt. Rewati Kuer defendant 2. It was further pleaded that the ancestors of Rai Baburam Singh were residents of village Majhauli in the district of Gorakhpur, Uttar Pradesh. Prom there they went to Bhengeri and from there they subsequently migrated to village Shafipur Barua in the district of Darbhanga. While they were at Majhauli and Bhengeri they were governed by Mitakshara School of Hindu Law.
After migration also the ancestors of Rai Baburam Singh continued to be governed by their family laws, customs and traditions which were prevalent in Gorakhpur district, that is to say, they continued to be governed by the Benares School of Hindu Law. It was further pleaded that they never adopted the customs and laws of the Mithila School of Hindu Law.
The defendants asserted that in the family of Rai Baburam Singh, the rites and ceremonies observed at the time of marriages and deaths were those which are observed in the Benares School of Hindu Law and the family never adopted the rites for those occasions enjoined by the Mithila School of Hindu Law. It was further alleged by them that Rai Baburam Singh was quite competent to authorise his widows to adopt, and that defendant 1 has been validly adopted by defendant 2. The defendants further pleaded that Jag-dish Singh was never adopted as Kartaputra of Rai Baburam Singh.
3. The learned Subordinate Judge accepted the version of the defendants that Rai Baburam Singh was governed by the Benares School of Hindu Law, and that defendant 1 had been validly adopted in dattak form by defendant 2. On these findings the suit has been dismissed but without costs.
4. According to the plaintiff the family of Rai Baburam Singh was governed by Mithila School of Hindu Law where a widow has no right to adopt, while according to the defendants the family of Rai Baburam Singh was governed by Mitakshara School of Hindu Law as prevalent in Benares where a widow can adopt.
On the argument of learned Counsel for the appellants as well as for the respondents, the only point which emerges for our consideration is whether Mt. Rewati Kuer had a right to take defendant 1 in adoption in the dattak form. This point has been urged under several heads viz., (1) Whether the ancestors of Rai Baburam Singh originally resided at village Majhauli in Gorakhpur district where admittedly the Benares School of Hindu Law prevails? (2) Whether after migration to Darbhanga district the members of the family of Rai Baburam Singh continued observing those customs and rites at the time of marriages and deaths which are prevalent under the Benares School of Hindu Law, or did they observe the customs followed on those occasions under the Mithila School of Hindu Law? (3). Whether the family of Rai Baburam Singh was governed by the Benares School of Hindu Law, or was it governed by tne lex loci, that is to say, by the Mithila School of Hindu Law ? (4) Even if the family of Baburam Singh was governed by the Benares School of Hindu Law, was the adoption of defendant 1, who was Rai Baburam Singh's wife's sister's daughter's son, valid in law?
5. Dealing with the finding of the Court below on the first point, Mr. Mahabir Prasad, learned Counsel for the appellants, contended that the defendants have failed to prove that one of the ancestors of Rai Baburam Singh, namely, Gulab Singh or Gulal Sahi, had migrated to Safipur Barua as he was married in the family of Adham Singh of Village Beri in Darbhanga district. He urged that the genealogical table (Exs. D and J-1) filed by the defendants to establish the connection of Gulab Singh with the family of Bishen Rajput of Bhengeri and Majhauli cannot be relied upon. He pointed out that there were certain interpolations in those exhibits and their genuineness had not been established beyond doubt.
He further criticised the evidence of the witnesses examined on behalf of the defendants, such as, D. Ws. 1, 2, 4, 9 and 12, and urged that it was not safe to hold on the evidence of these witnesses as well as on the booklets (Exs. G and G-1) that all Bisen Rajputs, wherever they are found in northern India, had migrated from village Majhauli, district Gorakhpur. He placed for our consideration the evidence of some of the plaintiffs' witnesses who have been examined to prove that the ancestors of Rai Baburam Singh were residents of village Shafipur Barua and that they had not migrated from either village Bhengeri or village Majhauli, district Gorakhpur. I propose to deal with the evidence of these witnesses later on in this judgment. (After discussion of the evidence his Lordship proceeded :) In my opinion, the evidence, led on behalf of the defendants corroborated by the history of the Bisen Tribes of Rajputs given in "Hindu Tribes and Castes", by Rev. M.A. Sherring Vol. I p. 217 and Bisen Bansh Batika (Ext. G/1) coupled with the admission of P. Ws. 10 and 14 mentioned in the earlier part of my judgment is sufficient for me to hold that the ancestors of Rai Babu-ram Singh were the original residents of village Majhauli in the district of Gorakhpur, and that they had ultimately migrated to village Shafipur Barua in the district of Darbhanga,
6. Now coming to the second and third points it is first to be decided whether Anant Jha of village Shafipur Barua who is a Maithil Brahmin is the Purohit of the family of Rai Baburam Singh as is the case of the plaintiffs or whether Jagnarain Dubey of village Harail who is Kanyakubja Brahmin is his family priest as is the case of the defendants. (After discussing the evidence on this point his Lordship concluded :) In my view the evidence led on behalf of the defendants on this point is more reliable. I, therefore, how that the family priest of Rai Baburam Singh is Jag Narain Dubey of village Harail, and not Anant Jha of village of Shafipur Barua.
7. Now coming to the question whether the family of Rai Baburam Singh used to perform 'Sradh' ceremony according to Benares Paddhati or according to Mithila Facldhati, it has to be borne in mind that according to Mithila Paddhati fish and flesh have to be offered along with 'pinda' vide 'Sradh Ratnam' p. 91, the period of 'Asauch' begins from the date of death and the 'pinda' is offered every day from the day of cremation till the day of 'Ekadashah' while according to Benares Paddhati, no fish or flesh is offered at the time of 'pindadan', the 'Asauch' starts from the day of cremation and the 'pinda' is effered on the third, seventh and the tenth day from the date of cremation. (After discussing evidence his Lordship proceeded :) In my view, it has been established in this case that the Sradh of Rai Baburam Singh was performed according to the Benares Paddhati.
8. Now according to Benares Paddhati an Acharya is appointed at the time of the marriage ceremony but no Acharya is appointed according to Mithila Paddhati. Mt. Abhirajo Kuer in her previous deposition (Ext. P/5) had admitted "Acharya is appointed on the occasion of marriages". Thus, she corroborates D.W.2, Tribeni Dubey, and D.W. 4, Kanta Singh, on this point. P.W.10, Ra-n Naresh Sahi of village Bhengeri said during his cross examination. "We are governed by Benares School. Wherever we migrate we are governed by. the said School".
Thus, it is quite clear that the ancestors of Rai Baburam Singh who had migrated from village Majhauli to village Bhengeri & from there to village Shafipur Barua in the district of Darbhanga and Rai Baburam Singh himself followed their old customs & rites and continued to be governed by the Benares School of Hindu Law which governed their family when it was in the district of Gorakhpur and that they did not adopt the Mithila School of Hindu Law. This is further proved from the conduct of Rai Baburam Singh also Mt. Saraswati Kuer, plaintiff 1, who was examined on commission, admitted in her cross-examination that her husband was conversant with the customs of his family.
Such is also the evidence of P.W.4, Anant Jha. Now if the family was governed by the Mithila School of Hindu Law, there was no reason for Rai Baburam Singh to authorise his widows to adopt as was done by him by the registered deed of will dated 21-1-1907. Mr. Mahabir Prasad attempted to explain this conduct of Rai Baburam Singh by saying that the deed of will was executed at Barisal &, according to him, the direction in the Will represented the view of the scribe rather than the view of Rai Baburam Singh. He urged that according to the Dayabhag School of Hindu Law which was prevalent at Barisal, widow could adopt, hence, the scribe of the will, who was a resident of Barisal, inserted that provision in the will in accordance with his own view rather than in accordance with the direction given by Rai Baburam Singh.
In my opinion, there is no force in this contention of learned Counsel for the appellants. Rai Baburam Singh was admittedly a well-to-do clever gentleman. He did survive for about ten years after his retirement. I am not inclined to believe that if the power to adopt given in the will executed by him had not been inserted in accordance with his advice and in accordance with the law which governed his family, he would have himself adopted a son during his lifetime & rectified the mistake committed in the will.
It is admitted that Rai Baburam Singh after his retirement lived for about ten years at his village home. He was no doubt an influential man having considerable property and I am not prepared to believe that he would have permitted the mistake in his will to remain unrectified as is tried to be impressed upon us on the side of the appellants. I am wholly in agreement with the trial Court that the direction in the will given to the widows to adopt was in accordance with the Benares School of Hindu Law by which the family of Rai Baburam Singh is governed.
9. Learned Counsel for the appellants next argued that the adoption of defendant 1 who was the son of Rai Baburam Singh's wife's sister's daughter was wholly illegal and did not confer any title on him in respect of the properties left by Rai Baburam Singh. The learned Counsel did not challenge the factum of adoption nor did he challenge the finding of the Court below in regard to the necessary ceremonies having been performed at the time of the adoption of defendant 1.
In support of his contention learned counsel referred to us some passages from Dattak Mimansa. He submitted that Dattak Mimansa has all along been held in high esteem oh the question of adoption. In support of his contention he relied on the decision in the case of 'Collector of Madura v. M.R. Sathupathy', 12 Moo Ind App 397 (PC) (A). The judgment of their Lordships of the Privy Counsel was pronounced by Rt. Hon'ble Sir James W. Colvile, the relevant portion of which runs thus :
"The duty, therefore, of an European Judge who is under obligation to administer Hindu Law, is not so much to enquire whether the disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law......
Again, of the Dattak Mimansa of Nand Pandit and the Dattak Chandrika of Devendra Bhatta two treaties on the particular subject of adoption, Sir William Macnaghten says that they are respected all over India; but when they differ the doctrine of the latter is adhered to in Bengal and by the southern Jurists while the former is held to be the infallible guide in the province of Mithila and Benares".
Learned Counsel thereafter referred in this connection to two other decisions of their Lordships of the Judicial Committee in the case of 'Bhagwan Singh v. Bhagwan Singh', 26 Ind.App. 153 (PC) (B) and the case of 'Puttu Lal v. Parbati Kunwar', 1915 PC 15 (AIR V 2) (C).
10. The author of Dattak Mimansa had commented on some passages of two law givers 'Saunaka' and 'Sakala' the English renderings of which have been quoted in their entirety at pp. 308 & 309 of the Hindu Law of Adoption by Golapchandra Sarkar Sastri, Edn. 2nd. I would prefer to quote these passages in their entirety. They are as follows;
"I, Saunaka, will now declare the best mode of affiliating a son. One to whom no son is born or whose son has died, having fasted (in the day preceding the adoption) for a son, having given two pleces of cloth, a pair of earrings, a turban & a ring for the forefinger to a priest, religiously disposed, a worshipper of Vishnu and thoroughly read in the Vedas; having venerated the king and virtuous Brahmanas by a Madhuparka; having collected the required number of Kusa grass for kindling sacrificial fire, as well as Palasa wood for fuel, having earnestly invited the agnate and cognate relations; having entertained the relations and especially Brahrnanas with food; having performed the rites, commencing with that of kindling the consecrated fire, and ending with that of clarifying the butter intended as burnt-offering; having advanced before the giver-should ask him through the priest thus, -- 'give the son'.--
The giver being capable of the gift should give to him with the recitation of the five riks commencing with "Ye Yajnena' (The adopter) having taken (the boy) by both hands, with the recitation of mantra or prayer, 'Devasyatva & c'; having repeated the rik or vedik passage 'Angadangat & c'; have smelt the boy in his head, having adorned the boy bearing the reflection of a son with clothes & the like; having brought him, accompanied with dancing, songs and benedictory words within the house; having in the prescribed mode, offered obligation of charu to the consecrated fire, reciting the rik, 'Yas tva hrida &c'. and the single rik 'Tubhyam agne &c', and the five riks commencing with 'Somoadadat &c', -- as many times as the number of riks recited; and having performed the homa or burnt sacrifice with the holy text, 'Svistakrit &c.', should complete the remaining part of the ceremony.
Amongst Brahamanas, one affiliation of a son should be made (Kartavyah) from amongst Sapindas; or on failure of them a non-Sapinda (may be affiliated) but any other should not be affiliated; amongst Kshatriyas, one from their own tribe, or one whose gotra is the same as that of the adopter's guru or preceptor (may be affiliated) ; amongst Vaisyas, from amongst those of the Vaisya tribe; amongst Sudras, from amongst those of the Sudra tribe; amongst all classes, from amongst their respective classes, not from others.
A daughter's son or a sister's son is, however, affiliated by Sudras; amongst the three (tribes), beginning with the Brahmana a sister's son is not affiliated somewhere (or anywhere). By no man having an only son, should the gift of a son be ever made. By a man having three or more sons, the gift of a son should anxiously be made. An excellent Brahmana should bestow on the officiating priest the fee according to his ability; a Kashatriya even one-half of his dominion; a Vaisya, wealth amounting to three hundred; a Sudra, even the whole of his property, if indigent, to the extent of his means".
Sakala;- "twice-born man, being destitute of a son, should, on that account affiliate as a son, the offspring of a Sapinda, or also next to him, a child of a Sagotra; in default of the latter he should bring up as a son, one Born in a different gotra, except a daughter's son, a sister's son and the son of the mother's sister."
11. Narida Pandit's comment of the expression "Putra Chhaya Waham (bearing the reflection of a son) as translated by Sutherland runs thus :
" 'The reflection of a son'. The resemblance of a son, -- and that is, the capability to have sprung from the adopter himself, through an appointment to raise issue on another's wife, and so forth; as is the case of the son, of a brother, a near or distant kinsman, and so forth. Nor is such appointment of one unconnected impossible; for, the invitation of such to raise issue may take place under this text; 'for the sake of seed let same Brahmana be invited by wealth, & c.' "
12. Thus, according to Nanda Pandita where it is not possible for the adopted child to be raised as an issue on another's wife by the process of Niyog he cannot be said to 'bear the reflection of a son'. Subsequently, in verse 19 he quoted a passage from Girha Parishist. The passage runs thus:-
"The mutual relation between a couple, being analogous to the one being the father or mother, of the other, connection is forbidden; as for instance, the daughter of the wife's sister and the sister of paternal uncle's wife."
According to him the meaning of the above text is that 'where the relation of the couple, that is of the bride and the bridegroom, bears analogy to the father or mother; if the bridegroom be, as it were, father of the bride or the bride stands in the light of mother to the bridegroom, such a marriage is a prohibited connection'. His conclusion on this topic is contained in verse 20 which has been translated by Sutherland thus:
"In the same manner as in the above text, of the Griha Parishist, on marriage, prohibited connection in the case of marriage, is excepted: so, in the case in question, one, who, if begotten by the adopter, would have been the son of a prohibited connection, must be excepted; in other words, such person is to be adopted, as with the mother of whom, the adopter might have carnal knowledge".
13. Learned Counsel for the appellants submitted on the authority of Dattack Mimansa that the adoption of defendant 1 was invalid as no legal marriage could have been contracted between Rai Baburam Singh and the mother of defendant 1 who was the daughter of Rai Baburam Singh's wife's sister.
In support of his contention he relied also on the decision in the case of 'Minakshi v. Ramanada', 11 Mad 49 (FB) (D) and the case of 'Haridas Chatterjee v. Manmatha Nath Mullick,' 1936 Cal 1 (AIR V 23) (E). In the case of 11 Mad 49 (FB) (D)', the question referred to the Full Bench was 'whether it is a rule of Hindu law that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made, and the mother of the boy who is adopted, in her maiden state'.
The facts of that case were as follows. One Appa Sastri had two sons, Kachappa Sastri and Krishna Sastri. Krishna Sastri, the younger brother died on 19-12-1876 and Kachappa Sastri, the elder brother died in June 1877 leaving a minor son. In August 18Y7 Meenakashi Amal, widow of Krishna Sastri adopted one Chinnappaien whose mother was a Sagotra of Krishna Sastri. It was this adoption which was held to be invalid on the ground that Krishna Sastri could not have married the mother of the adopted child who was of his own Gotra.
In the case of 1936 Cal. 1 (AIR V 23) (E), a learned Single Judge of the Calcutta High Court held that in Bengal the Niyoga rule being a part of the law of the land the adoption must be limited to boys that could have been raised by the process of Niyoga by the adoptive father. On that ground he held that the adoption of the son of brother's daughter was prohibited.
14. Mr. Lalnarain Sinha, who appeared for the respondents, contended, on the other hand, that the commentary of Nand Pandit has not been regarded as infallible in several cases. He submitted that its authority was questioned in the case of Jai Singh Pal Singh v. Bijay Pal Singh 27 All. 417 (F), and the view of the Allahabad High Court was approved by their Lordships of the Judicial Committee in the case of 1915 P. C. 15 (17) (AIR V 2) (C). He further urged that the passage from Aswalayana's 'Grihya Parisishta' referred to in verse 19 of S.V. of Dattak Mimansa cannot be considered to be imperative which would render a marriage contrary to the direction given therein as wholly illegal. In support of his contention he relied on the case of Ragavendra rau v. Jayaram Rau, 20 Mad. 283 (235) (G).
15. Mr. Lalnarain Sinha further submitted that the gloss of Nand Pandit on the expression ^iq= Nk;k oga* has been proved to be incorrect by Golapchandra Sarkar Shastri in his Tagore Law Lectures dealing with the topic "who may be taken in adoption". In those Lectures Mr. Sarkar has very elaborately dealt with the ceremonies of adoption according to Saunaka and Sakala and has also considered the correctness of the gloss of Nand Pandit. I would better quote a portion of his conclusion on this topic printed at p. 327 of the book;
"The conclusion to which any reader on carefully perusing these works on adoption, as well as what is written on the subject in other Sanskrit commentaries, must come is, that there was no restriction governing the choice of a boy to be adopted, but Nand Pandita, while writing specially on the subject, directed his mind to the question, and found only two texts on the subject, namely, one of Sakala and the other of Saunaka. The first of which discourages the adoption of only three relations, namely, the daughter's son, the sister's son, and the mother's sister's son.
The second passage is, as we have already seen, capable of different constructions, but it is liable to be construed as disapproving the adoption of' the daughter's and the sister's son, amongst the twice-born classes. Incongruity of relationship is considered by all the writers who have dealt with the matter, to be the principle upon which those passages are founded, in other words, it is incongruous or inconsistent with refined taste or feelings that certain nearest relations should be looked upon as sons; for instance, that a person who used to call you 'maternal uncle' should address you 'father' is likely to be repugant to your 'feelings....."
"The whole thing appears to be put upon an aesthetio ground; there may also be an ethical element in it"..... "The rule that no one can be adopted whose mother the adopter could not have legally married is confined to the specific instances of a daughter's son, sister's son and the mother's sister's son".
At another place in that book Mr. Sarkar had said that the adjective 'Putra Chhaya Waham' in the passage from Saunaka, quoted above, if understood in the context with the whole passage of Saunaka is "that the boy who was not the real son of the adopter has now become related to him through the rites already described".
At p. 333 of the book Mr. Sarkar has dealt with the so-called prohibited degrees of adoption. While dealing with that topic Mr. Sarkar has successfully pointed out the defects in the commentary of Nanda Pandita as given in Dattaka Mimansa. Mr. Sarkar has also dealt with the topic where the 'Virodhya Sambandh' (incongruous relationship in marriage) can be said to be invalid. He was of the opinion that such marriages though disapproved on moral grounds are valid in law.
16. On the basis of the view of Mr. Sarkar mentioned above, Mr. Lalnarain Sinha contended that the adoption of defendant 1 cannot be invalidated' on the ground alleged on behalf of the appellants. He further submitted that the doctrine of Niyoga has not been approved by this Court in the decision of Sri Ram v. Chandeshwar Prasad, 1952 Pat 438 (AIR V 39) (H), where a Division Bench of this Court has held that the obsolete practice of Niyoga should not be invoked in order to ascertain as to who could or could not be adopted.
Ramaswami J., with whom I respectfully agree, has dealt with this matter very elaborately in his judgment and has quoted and considered a number of passages from Saunaka. Thus this Court also did not accept the gloss of Nand Pandit in verse 16 of Section V quoted in the earlier part of this judgment.
17. Learned Counsel for the respondents further referred to the decision in the case of Vellanki Rama Krishna Rao v. Kotagiri Subbanna Rao, 1920 Mad. 715 (AIR V 7) (I), and Ram Chandra v. Gopal, 32 Bom. 619 (J), in support of his contention that the authority of Nand Pandit has not been accepted where it is not in conformity with Smritis on the relevant topic. He contended that such was also the view of the Allahabad High Court in the case of 27 All. 417 (P), which was upheld by their Lordship of the Judicial Committee in 1915 P.C. 15 (AIR V 2) (C).
18. In my opinion the submission made on behalf of the respondents must prevail. I agree with Mr. Lalnarain Sinha that the authority of Nand Pandit in Dattaka Mimansa is not an in-falliable guide in deciding as to who cannot be taken in adoption where it deviates from the ancient Hindu law givers. I further find that the decisions of their Lordships of the Judicial Committee relied upon by the appellants also do not hold that the authority of Nand Pandit is an infallible guide in such matters.
In the case of 12 Moo. Ind. App. 397 (P.C.) (A), the adoption in question was not set aside. In the case of 26 Ind. App. 153 (P.C.) (B), the adoption of mother's sister's son was held to be void. This decision is really in conformity with the law on the subject contained in the passage of 'Saunaka' quoted above and not really based on Nand Pandit's own gloss on the expression ^ iq= Nk;k oga *.
In the case of 1915 P.C. 15 (AIR V 2) (C), also their Lordships of the Judicial Committee were of the view that caution is required in accepting the glosses of Nanda Pandit, the author of Dattaka Mimansa, where they deviate from or add to the Smritis, and in that case their Lordships did not actually follow the gloss of Nanda Pandit. In agreement with Mr. Lalnarain Sinha I am inclined to accept the meaning of the expression ^ iq= Nk;k oga * occurring in the passage of 'Saunaka' quoted above, as given by the eminent scholar of Hindu law Golapchandra Sarkar Shastri in his Tagore Law Lectures on the Hindu" law of adoption. The view of this learned author about the meaning of the expression ^ iq= Nk;k oga * was as follows;
"All that this expression may suggest to the reader of the whole passage of 'Saunaka' is that the boy who was not the real son of the adopter has now become filially related to him through the rites already described."
I also agree with Mr. Lalnarain Sinha that the passage from Griha Parishist quoted in verse 19 of Section 5 of Dattaka Mimansa was not imperative, and any marriage contracted against the direction given in that passage would not become invalid in the eye of Hindu law. I may mention at this place the authority of Golapchandra Sarkar Shastri in his Tagore Law Lectures was accepted by their Lordships of the Supreme Court in the case of Srinivas v. Narayan, 1954 S.C. 379 (335) (AIR V 41) (K). Thus there appears to me no reason for declaring the adoption of defendant 1 as null and void simply because he happened to be the son of the daughter of Rai Baburam Singh's wife's sister.
19. Before concluding, I would like to refer to another argument of Mr. Mahabir Prasad. He contended that even if the case of the defendants regarding the migration of the ancestors of Rai Baburam Singh was correct, they have failed to prove that the migration had taken place after the growth of Mithila School of Hindu Law in the district of Darbhanga. He contended that if the migration was before the growth of Mithila School, then the ancestors of Rai Baburam Singh must be presumed to have adopted the new law which grew in the locality rather than continued to follow their old law and custom which had prevailed in the district of Gorakhpur from where they are said to have migrated.
Exactly similar argument had been raised and repelled by Meredith, J. in the case of Chandra Choor Deo v. Bibhutibhushan, 1945 Pat. 211 (243-244) (AIR V 32) (L). I respectfully agree with Meredith J. that it is not correct to say that the presumption that a Hindu family migrating from one province to another carries with it the laws & custom as to succession etc., prevailing in the province from which it came does not arise until when the migration was before the development of lex loci; in the present case the Mithila School of Hindu law. So this contention raised on behalf of the appellants also must be rejected as untenable in law.
In my view the appellants have failed to point out anything substantial which may entitle me to take a different view from what had been taken by the Court below regarding the validity of the adoption of defendant 1. I may also mention here that those pieces of evidence oral of documentary, which were not referred at the time of argument, before this Court have not been dealt with in my judgment.
20. The result is that the judgment and decree passed by the Court of appeal below are uphold, and this appeal fails and is dismissed but, in the circumstances of this case, there will be no order for costs of this Court.
Raj Kishore Prasad, J.
21. I agree.