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16. It is a fact which does not admit of question that the right of adoption is not, according to Hindu law, a right unrestricted by limitations. On the contrary, that law imposes on the right of adoption various and important limitations as to the capacity of the person adopting, of the person giving in adoption, and of the person taken in adoption; and when any of those capacities is absent or defective an adoption is void according to that law. Where, therefore, an adoption, which is alleged to be valid, is set up in opposition to the right of succession of a person who would, in the absence of an adoption, succeed to the property of a deceased person, the validity of that adoption should, in my opinion, be established by the person who sets up the adoption and the issue is not on the person who asserts the contrary. Where, as in this case, a uniform course of rulings has pronounced against the validity of an adoption like the one in question, and has thus given rise to an inference of usage, albeit the texts and commentaries may be conflicting, any one asserting such an adoption to be valid must found his assertion on the basis of a specific usage to the contrary, which he must clearly establish. It is, I conceive, a usage of this description to which their Lordships of the Privy Council referred, and it does not seem to me that their Lordships meant to lay down that every disputed question of Hindu law should be decided solely with reference to usage. It has not been alleged in this case that a usage obtains among persons of the class to which the parties to this suit belong or in the particular locality in which this suit has arisen which validates the adoption set up by the appellant.

51. Madho Singh was a sonless and a separated Hindu. The defendant Bhagwan Singh is the natural son of a sister of Madho Singh's mother; and it is alleged by the defendant Bhagwan Singh and denied by the plaintiffs that he was i& fact adopted by Madho Singh. That issue as to whether in fact the adoption took place has not yet been tried. The plaintiffs dispute that alleged adoption on several grounds, only one of which need be considered by us at present.

52. It was in the Court below successfully contended on behalf of the plaintiffs that the defendant, being a son of a sister of the mother of Madho Singh, an adoption of him by Madho Singh was prohibited by, and was illegal under, the Hindu law; and consequently that the adoption alleged by the defendant Bhagwan Singh, if it in fact took place, was void and ineffectual. Syed Akbar Husain, then the Subordinate Judge of Cawnpore (accepting the view of the law expressed in paragraph 118 of Mr. Mayne's Hindu Law and Usage), held that as the parties belonged to one of the three regenerate classes of Hindus, the alleged adoption was prohibited and void, and, without trying any of the other issues in the suit, gave the plaintiffs a decree, declaring the plaintiffs to be entitled as reversioners and. the alleged adoption to be void. From that decree the defendant Bhagwan Singh has appealed to this Court. His appeal has been referred to the Full Bench.

57. I may say that from what I had read in Sir William Macnaghten's Principles and Precedents of Hindu Law, in Mr. Sutherland's Synopsis, and in Mr. Mayne's Hindu Law and Usage, I approached the consideration of this appeal under the firm impression that the adoption by Madho Singh of the son of his mother's sister was an adoption prohibited by Hindu law and illegal according to the School of Benares.

58. The parties in this case are Kshatriyas and are governed by the Benares School of Hindu Law. As Kshatriyas, they belong to one of the three regenerate classes of Hindus. What we have to ascertain is, does the Hindu law as accepted by the Benares School prohibit the adoption by a Kshatriya of the son of his mother's sister, in the sense of making such an adoption illegal and void. So far as this question of adoption is concerned, on the authorities relied upon on behalf of the plaintiffs, if those authorities are reliable and are to be applied by us, a sister's son, a son of a daughter and a son of a mother's sister stand in the same position; all of them are eligible for adoption or none of them are.

66. Assuming for present purposes the factum of the adoption, the onus of proving that the adoption was illegal and invalid is in, my opinion upon the plaintiffs, and for these reasons : Manu and the author of the Mitakshara suggest no such limitation of the right of adoption; that sonless Hindus of all classes may adopt a son is beyond question; it is for those who would limit the right of adoption in this case to point to an undisputed and unambiguous sacred text of the Hindu sacred law, if there is one, recognised and acted upon by the School of Benares, or to give clear proof of a usage amongst the Hindus of that school, which limits that right of adoption by making such an adoption as that in the present case illegal; on the assumption that the adoption has in fact taken place, it is for the plaintiffs, who claim a declaration that the adoption was illegal and void, to prove that such an adoption is illegal. It would not be sufficient to prove that the adoption was merely sinful. If the adoption was merely sinful the principle of the maxim quod fieri non debet factum valet would apply and the adoption would, although sinful, be valid for all purposes. On the other hand, if an admitted text of the Hindu sacred law of the-particular school prohibited an adoption except under certain specified circumstances, the onus of proving that such a prohibited adoption was by usage valid would be upon the party relying upon such an adoption. Such was the case in Tulshi Ram v. Behari I.L.R. 12 All, 328, in which, contrary to the admitted text of Vasishtha, "Nor let a woman give or accept a son except with the assent of her lord," it was contended that amongst Hindus subject to the School of Benares, in which school the text which I have quoted is received as. an admitted text of Vasishtha, an adoption made by a widow to her deceased husband without this express authority was valid. In that case, after referring to cases which bad been decided and in which the parties were Hindus subject to the? School of Benares (one of those cases was a case from these provinces in the-Privy Council) I said, and I think rightly: "I would expect that any one who would now contend that a Hindu widow subject to the Benares School could make a valid adoption to her deceased husband without express authority given by him, would support that contention by clear proof of general usage in the particular district that an adoption under such circumstances was in the particular district recognised as valid by those subject to the Benares School." In the latter case, that of an adoption of a son by a wife or widow to her husband, a text accepted and admitted to be genuine by the School of Benares-imposed in prohibitive language the limitation on the general right to adopt, whilst in the case under consideration in this appeal a limitation on the general right to adopt is sought to be imposed first by a text alleged to be a text of Sakalya, but which has never been recognised as genuine by any commentator of authority of the School of Benares, and secondly by Nanda Pandita's construction of two portions of a text of Saunaka, a construction which has never been accepted as correct by any commentator of authority in the School of Benares, unless indeed it be assumed that Nanda Pandita is in the School of Benares a commentator of authority. I hope to show that any such assumption would be rash in the extreme, and would not be justified by the facts. If it was permissible for a Judge to make assumptions without justification, the onus of proof would depend on the caprice, bias or lack of information or of consideration of the particular Judge, and not upon principles of law applied facts which have been either proved or admitted or of which a Judge is allowed to take judicial notice. In such case the rights of litigants might depend upon the means of knowledge of particular facts relied upon by the Judge as of his own knowledge but which were not proved by evidence or admitted by the parties, and it might appear if the Judge were in the witness box that his knowledge depended upon mere rumour or hearsay, and that his evidence as to these facts would not have been admissible if he had been examined as a witness." "A Judge cannot, without giving evidence as a witness, import into a case his own knowledge of particular facts," and "his own knowledge and belief on public rumour" are "grounds upon which no Judge is justified in acting." See the judgments of their Lordships of the Privy Council in Hurpurshad v. Shec Dyal L.R., 3 I.A. at p. 286, and in Meethun Bebee v. Busheer Khan 11 Moo. I.A. at p. 221. I have made the above observations because it has appeared to me that there was a danger in this case of our imposing the onus of proof upon the wrong parties owing to some of us, myself amongst the number, having been at the commencement of the arguments influenced by preconceived extra-judicial opinions, which, so far as I am concerned did not rest upon any sure foundation.