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17. It may be that a contrary usage prevails in the Western and Southern Presidencies. Having regard to the fact that the rules of marriage and adoption are lax in those presidencies, and are not so strictly enforced there as they are in these provinces see West and Buhler p. 888 and I.L.R. 9 All. p. 328 to the fact, for example, that a marriage between the children of a brother and a sister is common in the South, whilst such a marriage is regarded as incestuous in these provinces and is wholly unknown among Hindus of the higher castes, it is not surprising that such a custom should exist in those presidencies. It may also be that a similar custom prevails in the Punjab, but there is nothing to suggest that it obtains in these provinces or in that portion of Lower Bengal which is governed by the Benares School of Hindu law. Mr. Golap Chandra Sarkar's assertion (Tagore Law Lectures 1888 p. 335) that instances of the adoption of a daughter's son or sister's son among the Brahmans of Bengal are not rare is, as far as I am aware, not well founded; and I have the authority of a late eminent Hindu Judge of the Calcutta High Court to say that not only is such adoption unknown among the Brahmans of Bengal, but it is rare even among Sudras. In these provinces, except among Jains who are not ordinarily governed by the Mitakshara law, and who have a special custom of their own, the adoption of a daughter's son or sister's son or a mother's sister's son among the three higher classes, is, as far as my judicial experience goes, uncommon; and in the course of my experience as a judicial officer in these provinces, extending over a period of twenty-three years, I cannot call to mind a single instance, except the present case, in which such an adoption among the three higher castes was alleged to have taken place or was asserted to be valid. The non-existence of any reported case in these provinces in which an adoption of this description was held to be valid, the existence of a uniform and long course of decisions in which such an adoption has been held to be invalid, and the paucity of cases in which the validity of such an adoption was questioned, in my opinion, raise, as I have said in another part of this judgment, the inference of a usage in conformity with the rulings. As it has not been asserted in this case that a contrary usage exists among the particular class or in the particular locality to which the parties to this suit belong, we are, in my judgment, bound to hold, in accordance with the long and uniform course of rulings in all parts of India, that the appellant's adoption was invalid. Having regard to those rulings, to the almost total absence of a conflict of authorities based on reported cases, and to the strong expression of the opinion of their Lordships of the Privy Council on the point in the case of Sundar v. Parbati I.L.R. 12 All. 51 the question can no longer be regarded as res integra.

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...having adorned the boy bearing the rejection of a, son with clothes and the like; having brought' him accompanied with dancing...should complete the remaining part of the ceremony." The whole context of this passage shows that prior to the performance of all the ceremonies which would complete the adoption, the giver should be a person "capable of the gift," and the boy should be one "bearing the reflection of a son." It cannot, in my opinion, be reasonably contended that the boy "now bears the reflection of a son," because by reason of the adoption he does not become the reflection of a son but for all practical purposes he becomes the actual son of the adopter with ail the rights and obligations of a real son, and I am of opinion that the meaning put on the text by Nanda Pandita is its true meaning. It has been fully shown in the judgment of the Full Bench of the Madras High Court in Minakshi v. Ramavada I.L.R. 11 Mad., 49, that the rule of exclusion deduced by Nanda Pandita founded on propinquity and incongruous relationship is not an inconsistent rule, and all I need say is that I concur in that judgment and in the reasons given in it for the conclusion at which the learned Judges arrived. The object of marriage among Hindus is to procreate a son able to confer spiritual benefit, and this cannot be done by the issue of an incestuous marriage. Hence the rules for marriage within prohibited degrees. The same being the object of the procreation of a son through the now obsolete practice of Niyoga rules of prohibited relationship in Niyoga were also provided. As adoption is resorted to for a similar object, similar rules of exclusion founded on the analogy of Niyoga are the necessary consequence of the requirement of Saunaka that the son to be adopted should "bear the reflection of a son" that is of a son born in wedlock: otherwise the efficacy of adoption would fail, as in that case the son to be adopted would bear the resemblance of the issue of an incestuous connection. Hence the rule propounded by Nanda Pandita in Section V, 20, that " such person is to be adopted as with the mother of whom the adopter might have carnal knowledge," as translated by Sutherland, or 'for the mother of whom the adopter may feel sexual love," as translated by Golap Chandra Sarkar, is a legitimate inference from and is warranted by the text of Saunaka that the adopted son should bear the reflection of a son--a text which thus imposes a prohibition on the adoption of persons of the description mentioned in 20 of Section V of the Dattaka Mimansa. As the son of the mother's sister comes within that description of persons the adoption of such a son is interdicted by Saunaka.