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28. Such, are the main facts and allegations which preceded this litigation and have given rise to it. The plaintiff states that he came to know of these facts after the registration of Khushal Kuar's will, which, he contends, virtually amounts to a deed of gift in favour of Ganga Sahai; and upon this allegation he prays the aid of the Court to declare that the defendant Ganga Sahai, as a matter of fact, was never adopted; that even if Khushal Kuar did ostensibly go through any ceremonies of adoption, they were legally null and void; and that all proceedings of the widow in the nature of transfer of her husband's estate will be invalid as to the plaintiff's rights after her death.

(2) If so, was he a total stranger to the family so as to preclude him from being adopted by Chandan in the presence of near relations descended from Jairam?

(3) If not, was the plaintiff above five years of age on the 22nd November 1866, when he was adopted? and (4) If so, was his adoption null and void under the Hindu law applicable to the case?

33. It is perfectly clear to me that, with the exception of the third point above-mentioned, if any of the other points are decided against the plaintiff, his suit must be dismissed for want of locus standi, and without entering into the validity of the defendant's title, who has been represented by Khushal Kuar as the rightful owner, and who, at least since the death of that lady on the 8th December 1881, has been in possession of the property in suit. Nor can there be any doubt that, irrespective of his adoption by Chandan, the plaintiff, even if his descent from Ghansam be admitted as stated by him, would have no right whatsoever to inherit Hira Singh's estate. On the contrary, the defendant, Ganga Sahai, would be among the heirs of Hira Singh, even if his alleged adoption is held to be null and void. This being so, the defendant's title needs no adjudication if the validity of the plaintiff's adoption is not fully established. But if that is established, it will be necessary to enter into the second branch of the ease, which relates to the defendant's title. The questions, then will be:

61. Such being the divisions and subdivisions of the schools of Hindu law, I think it will be convenient, before entering into the consideration of the various texts which have been cited, to deal with that portion of the argument addressed to us on behalf of the parties which relates to the application of the doctrine of factum valet to cases of Hindu adoption. For it was argued by the learned Counsellor the respondent, that even if the authorities relied upon by the learned Pandit on behalf of the appellant be taken to be conclusive as imposing the limitation of the age of five years upon the adoption of a boy, the irregularity or defect in the case of the plaintiff would be covered by the doctrine quod fieri non debuit factum valet. It seems to me, therefore, advisable to clear the case of the complication which this contention has introduced. In the case of Srimati Uma Devi v. Gokoolanund Das Mahapatra, L. R., 5 I. A., 40, to which reference has already once been made, and which was governed by the Benares school of Hindu law, the Lords of the Privy Council made the following observations: "It was urged at the bar that the maxim quod fieri non debuit factum valet, though adopted by the Bengal school, is not recognized by other schools, notably by that of Benares. That it is not recognized by those schools in the same degree as in Bengal is undoubtedly true. But that it receives no application except in Lower Bengal, is a proposition which is contradicted not only by the passage already cited from Sir William Macnaghten's work, but by decided eases. The High Court of Madras in Chinna Gaundun v. Kumara Gaundun, 1 Mad., H. C. Rep., 54, and the High Court of Bombay in Baje Vyankatrav Anandrav Nimbalkar v. Jayavantrav bin M. Ranadive, 4 Bom., H. C. Rep., (A. C.) 191, acted upon it, and did so in reference to the adoption of an only son of his natural father on which the High Court of Calcutta in Rajah Opendur Lall Roy v. Banee Bromo Moyee, 10 W. R., 347, has refused to give effect to it, considering that particular prohibition to be imperative." To the cases cited by their Lordships may be added Hanuman Tiwari v. Chirai I. L. R., 2 All., 164, where the majority of a Full Bench of this Court applied the doctrine to the adoption of an only son,, relying in some measure on V. Smgamma v. Vinjamuri Venkatacharlu, 4 Mad., H. C. Rep., 164, which, however, only went the length of saying that the omission to perform the ceremony of Datta Homam would not vitiate an adoption which had actually taken place. But the rule has perhaps never been carried to a greater extent than in the recent case of Dharma Dagu v. Ramkrishna Chinnaji, I.L.R., 10 Bom., 80, in which a Division Bench of the Bombay High Court held that even the adoption of a married asagotra Brahman, in violation of the ordinary rule that adoption should take place before the upanayana, would be covered by the doctrine of factum valet. On the other hand, in the case of Lakshmappa v. Ramava, 12 Bom., H. C. Rep., 364, it was held by the Bombay Court that a gift by a Hindu widow of her deceased husband's only son is invalid in the absence of an express authority conferred upon her by him during his life-time, and that such an adoption, being null and void ab initio, cannot be supported by the maxim quod fieri non debuit factum valet. And upon the same principle, the same Court in Gopala Narhar Safray v. Hanmant Ganesh Safray I. L. R., 3 Bom., 273, declined to apply the doctrine to the adoption of a daughter's or sister's son.

82. I have cited these passages because they represent the whole line of argument addressed to us by the learned Pandit on behalf of the appellant. He has also relied upon a note by Mr. Colebrooke to p. 13, chapter 1, Section ix of the Mitakshara, and the note leaves no doubt that, according to Mr. Colebrooke, the followers of Raghunandana, referring to the Kalika-purana, "construe the passage as an unqualified prohibition of the adoption of a youth or child whose age exceeds five years, and especially one whose initiation is advanced beyond the ceremony of tonsure." The same is the effect of a note to be found at page 329, vol. ii. of Colebrooke's Digest, and of another at page 222 of vol. ii of Strange's Hindu Law; and the same interpretation has been accepted by Mr. Macnaghten (p. 72), and Dr. Jolly (p. 161), and indeed by other authorities also. And I think it may be conceded at once that according to the passage of the Kalika-purana as intrepreted in the Dattaka Mimamsa, five years is the extreme limit of age for adoption; that a Roy exceeding that age is incapacitated from being a proper subject of adoption; that such incapacity amounts to a sufficiently imperative prohibition to place it beyond the application of the doctrine of factum valet, as explained by me. Whether the rule of Dattaka Mimamsa is intended to apply only to special cases where early intiation is necessary, is another matter which I shall presently consider; but there can be no doubt that if the rule is rigidly applied to this case, the plaintiff's adoption must beheld to be null and void. This, indeed, is the whole scope of the learned Pandit's contention on behalf of the appellant, for whilst on the one hand no question as to the performance either of the ceremony of tonsure (chudakama) or of that of the sacred thread (upanayana) has been raised in this case, on the other hand, it has not been contended that either the incapacity to give in the natural father, or the incapacity to take on the part of the adoptive father, existed in connection with the plaintiff's adoption. Indeed, it is shown by the evidence of Narain Singh, the natural father of the plaintiff, and has been assumed throughout the argument, that the plaintiff was a younger son, and that both the chudakarna and the upanayana of the plaintiff were performed in the family of his adoptive father. The-question of the proper age for adoption is therefore the only point which needs determination.