Patna High Court
Ado Rai vs Huro Rai And Ors. on 15 November, 1957
Equivalent citations: AIR1958PAT233, 1958(6)BLJR45, AIR 1958 PATNA 233, ILR 37 PAT 71
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Ramaswami, C.J.
1. The sole question of law involved in this appeal is whether the adoption of Ado Rai by Babulal was valid in Hindu law.
2. It has been found by the lower appellate Court that Ado Raj was related to his adoptive father, Babulal, in the following manner. One Asha had two daughters, Lakho and Sampat Babulal is the son of Sampat. Lakho had a son, Nawab, who had a daughter, Tipno, and Ado Rai is the son of Tipno. The lower appellate Court has found that no valid marriage could hare taken place between Tipno in her maiden state and the adoptive father, Babulal, because they are within the prohibited degrees.
The lower appellate Court, therefore considered that the adoption of Ado Rai was invalid and, accordingly, decreed the suit in favour of plaintiff No. 3. It is also admitted in this case that the parties are Rajputs by caste.
3. In support of this appeal, learned Counsel on behalf of the appellant presented the argument that the adoption of Ado Rai by Babulal was legally valid and, in support of his argument, learned Counsel referred to the decision of this Court in Sri Ham v. Chandeshwar Prasad Narayan Singh, AIR 1952 Pat 438 (A). In that case it was held by a Division Bench of this Court that the rule of the immoral and obsolete practice of Niyoga should not be invoked in order to ascertain who could or could not be adopted and any legal objection raised to the validity of adoption as being contrary to Niyoga rule could not be sustained.
But this case has no bearing on the present cass because the question at issue in AIR 1952 Pat 438 (A), was with regard to the validity of adoption of the wife's brother's son's son. In that case the marriage between the adoptive father and the mother of the adopted boy in her maiden state would have been legal. I, therefore, consider that the decision in AIR 1952 Pat 438 (A), has no bearing on the question to be determined in the present case.
In the next case, Mt. Saraswati Kuer v. Debendra Singh, AIR 1956 Pat 340 (B), it was held that the adoption of wife's sister's daughter's son was not invalid according to the Banares School of Hindu Law. The decision was reached on application of the principle that the practice of Niyoga should not be invoked in order to ascertain who could or could not be adopted. But the same decision would have been reached in that case if "the marriage rule" had been applied because it is obvious that the marriage between the adoptive father and the mother of the adopted boy in that case would have been legally valid.
4. The next case upon which Counsel for the appellant relied is the case of Chandi Charan v. Nabagopal Sarkhol, (S) AIR 1957 Pat 365 (C). In that case also it was observed that any legal objection raised to the validity of adoption as being contrary to Niyoga rule could not be sustained. From the record of that case it appears that Mahesh, the adoptive father, was the son of the maternal uncle of the adopted son, Haripado.
The decision of that case proceeds upon the ground that there was legal marriage possible between the adoptive father and the mother of. the adopted son in her virgin state. The principle laid down in that case has, therefore, no relevance to the decision of the present appeal.
5. In my opinion the present case is governed by the principle of Hindu Law that no one can be adopted whose mother in her maiden state the adopter could not have legally married. This prohibition is contained in Dattaka Chan-drika and Dattaka Mimansa. But there has been considerable controversy about the binding character of this rule. The rule has been criticised by Mr. V.N. Mandlik in his translation of Vyava-hara Mayukha and Yajnavalkya.
But the principle was affirmed by the High Court of Madras in Minakshi v. Ramanada, ILR 11 Mad 49 (D), after full examination of the argument of Mr. V.N. Mandlik. The conclusion was reached in that case by all the learned Judges who constituted the Full Bench that it was a general rule of Hindu Law that there could be no valid adoption unless a legal marriage was possible between the person by whom the adoption was made and the mother of the boy who was adopted.
In reaching this conclusion, the learned Judges relied upon Caunaka's text cited in Dattaka Mimansa and in Dattaka Chandrika namely, that, in order that one may be eligible for adoption, one should bear "the reflection of a son".
6. The "marriage rule" came up for consideration again before a Full Bench of the Allahabad High Court in the case of Bhagwan Singh v. Bhagwan Singh, ILR 17 All 294 (E), and the rule was reaffirmed by Banerji J., who was a dissentient Judge. It was held by him that the adoption by a Hindu belonging to one of the three regenerate classes of his mother's sister's son was prohibited according to the Hindu Law of the Benares School and that such prohibition was not merely directory, but the adoption was absolutely interdicted and, void and could not be validated by the rule of factum valet.
The majority of the Judges of the Full Bench including Sir John Edge, Chief Justice, expressed a different view. It is important to note that an appeal was taken against the decision of the Full Bench to the Privy Council, and the decision of Banerji J., was upheld and the decision of the majority of the Full Bench was reversed. The judgment of the Privy Council is reported in Bhagwan Singh v. Bhagwan Singh, Minor, ILR 21 All 412 (F).
In delivering the judgment, Lord Hobhouse quoted the original texts in the Dattaka Chandrika and Dattaka Mimamsa and reaffirmed the observations of Lord Kingsdown in Rungama v. Atchama, 4 Moo Ind App 1 at p. 97 PC. G., that both Dattaka Mimamsa and Dattaka Chandrika must be accepted as bearing high authority for so long a time that they had become embedded in the general law. At page 418 Lord Hobhouse states:
"Their Lordships have mentioned in the prior adoption cases the views of Mr. Justice Knox as to the authority of the two Dattaka treatises just quoted. In the present case the learned Chief Justice Edge takes even more disparaging views of their authority; denying, if their Lordships rightly understand him, that these works have been recognised as any authority at all in the Benares school of law.
If there were anything to show that in the Benares school of law these works had been excluded or rejected, that would have to be considered. But their authority has been affirmed as part of the general Hindu law, founded on the Smritis as the source from whence all schools of Hindu law derive their precepts. In Doctor Jolly's Tagore Lecture of 1883 that learned writer says:
"The Dattaka Mimamsa and Dattaka Chandrika have furnished almost exclusively the scanty basis on which the modern law of aception has been based.' Both works have been received in Courts of Law including this Board as high authority. In 4 Moo Ind App 1 at p. 97 (G), Lord Kingsdown says: 'they enjoy as we understand, the highest reputation throughout India'.
In Collector of Madura v. Moottoo Rama-linga Sathupathy, 12 Moo Ind App 397 at p. 437 (H). Sir James Colvile quotes, with assent, the opinion of Sir William Macnaghten, that both works are respected all over India, that when they differ the Chandrika is adhered to in Bengal and by the Southern Jurists, while the Mimamsa is held to be an infallible guide in the Provinces of Mithila and Benares. To call it infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law.
The learned Chief Justice then objects that the texts of the two Rishis are detached from their context and so are rendered of no value; and that as regards Sakala there is no information where the writer of the Chandrika obtained his text, and that its genuineness is doubtful. This objection is strengthened by the fact that the greatest of the sages do not mention any such prohibition; neither Manu nor Vashishtha nor Yajnavalkya nor Narada; while one ancient sage called the holy Yama, expressly asserts the right to adopt a sister's son.
Those objections must receive the same answer. It may be true, though it is impossible now to say, that the Dattaka Chandrika is the sole authority for the texts there quoted and afterwards copied by Nanda Pandita; but it still remains the fact that the texts have been so quoted for several centuries and have so been received into the body of Hindu law.
Taking then the texts as they are given, and adding to them such weight as the commentators possess, what is enjoined by them? The learned Chief Justice points out that Saunaka may mean a legal prohibition, or a moral admonition, or merely to state a fact, or to indicate a preference for daughters' and sisters' sons among Sudras.
Certainiy, if the question were new, the learned Judge's argument would have to be very carefully weighed before it could be rejected. Much of the reasoning which has prevailed with their Lordships in the prior cases would apply to this case; and on some points, such as the silence of other great law givers and the existence of a sacred text in an opposite sense, with greater force. But their Lordships find an antecedent difficulty; for they have to consider whether the present question can be treated as an open one."
7. The rule was expressly recognised in the later Privy Council decision in Puttu Lal v. Mt. Parhati Kunwar, ILR 37 All 359: (AIR 1915 PC 15) (I). The "marriage rule" was expressly recognised in this case though its extension by Nanda Pandit in Dattaka Mimansa to adoption by females was not approved of. In delivering the judgment of the Judicial Committee, Sir John Edge upheld the adoption made by a Hindu widow of her brother's son by virtue of her deceased husband's authority and referred to the rule in question in the following passage:
"It was pointed out by Banerji J., in Jai Singh Pal Singh v. Bijay Pal Singh, ILR 27 All 417 (J), on this question as to whether a widow can lawfully adopt her deceased husband a son of her own brother, that Nanda Pandit in the "Dattaka Mimansa'' extended to adoption by females the rule of Hindu law that no one can be adopted as a son whose mother the adopter could not have legally married, an extension by Nanda Pandit which is not based upon the authority of any of the Smrities or institutes of sages."
The rule was also referred to in a passage at page 368 (of ILR All): (at p. 18 of AIR) of the judgment as follows:
"It must be remembered that the adoption was not by the widow in her own right and to herself; the adoption was to her deceased husband and under the authority which he had given to her. In Sriramulu v. Ramayya, ILR 8 Mad 15 (K), the adoption of a son of a wife's brother was held to be a valid adoption, and it was rightly pointed out that the rule of Hindu lav; that a legal marriage must have been possible between the adopter end the mother of adopted boy refers to their relationship prior to marriage."
The "marriage rule" was agsin the subject-matter of consideration in Hari Das Chatterji v. Manmatha Nath Mallik, ILR (1937) 2 Cal 263 (L). it was held by the learned Judges in that case, after an elaborate discussion of the original texts and authorities, that a Hindu of the regenerate class could not adopt a person whose mother the adopter could not have legally married, nnd further that the marriage rule was not merely recommendatory and the doctrine of factum valet did not apply even to cases outside the three cases specifically prohibited in the texts.
8. It is true that Bombay High Court has applied the restrictive rule to three specific cases of daughter's son, sister's son and mother's sister's son (see, for example, the case of Ramchandra v. Gopal. ILB 32 Bom 619 (M) and Yamnava v. Laxuman Bhimrao. ILR 26 Bom 533 (N) ), but I am unable to accent the Bombay decisions as correct in view of the Privy Council decision in ILR 37 All 359: (AIR 1915 PC 15) (I), and also in view of the decisions of the Madras and the Calcutta High Courts.
I am of the opinion that the law has been correctly laid down in ILR 11 Mad 49 (D): ILR 21 All 412 (F); ILR 37 All 359: (AIR 1915 PC 15) (I) and ILR (1937) 2 Cal 265 (L). Applying the nrinciole to the present case, it is clear that Babulal and the mother of Ado Rai. Tipno. were within the prohibited desrees and there could be no lawful marriage between Babulal and Tipno, the mother of the adopted boy, Ado Rai. It follows, therefore, that the adoption of Ado Rai by Babulal is invalid in Hindu law and the decision of the lower appellate Court is correct.
9. I would, accordingly, dismiss the appeal with costs.
Raj Kishore Prasad, J.
10. I agree.