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22. Another special rule is propounded in the Kalika Purana; son given, and the rest though sprung from the seed of another, yet being duly initiated under his own family name, become sons. O Lord of the earth, a son having been initiated under the family name of his father, unto the ceremony of tonsure inclusive, does not become the son of another man (anyalas). The ceremony of tonsure and other rites (chudaya) of initiation, being indeed performed under his own family name, sons given, and the rest may be considered as issue: else, they are termed slaves. After their fifth year, O King, sons given and the rest are not sons. (But having taken a boy five years old, the adopter should first perform the sacrifice for male issue. But the son of twice married woman, immediately on being born, he should duly take as a son. Having performed positively (vai) for such, immediately on being born, the burnt sacrifice for the son of a twice married woman, the man should complete every initiatory rite, the ceremony for a male borne (jalakarma) and the rest. The burnt sacrifice for the son of a twice married woman, being completed, from these (latas) a son of that description, is filially related.

14. The exact meaning of this passage is somewhat obscure, and the rest of the section consisting in all of 79 verses is given up to its elucidation. The effect of the passage as explained by the author of the Dattaka Mimansa appears to be that, a son whose tonsure ceremony has been performed in the family of his natural father cannot validly be adopted as a son given, and; as this ceremony ought to be performed (according to the author) not later than the fifth year, no boy above that age is capable of being so adopted.

15. Much controversy has raged round this passage and much ingenuity has been expended in endeavouring to explain away a rule which appears to be at variance with actual practice. In the earliest Smritis there is no such prohibition. The only restriction imposed by Manu is that the adopted son should belong to the same class or ciste as his adoptive father. "He whom his father, or mother with her husband's assent gives to another as his son, provided that the donee have no issue if the boy be of the same class and affectionately disposed, is considered as a son given, the gift being confirmed by pouring water" (Manu Chapter IX, 168, Jones' translation; see also Mitakshara Chapter I, Section XI, verse g). As Dr. Gour has pointed out in a recent work, (The Hindu Code, page 337) "In ancient times neither age nor marriage was a bar to adoption and an instance is frequently cited of the adoption of Sunah Sepha by Vishwamitra in the Vedic age. The restrictions consequent on age and marriage are unquestionably innovations of a later age." In this respect there is no reason to suppose that the learned author is not accurate. Apart from the passage quoted from the Kalika Purana and adopted by the Dattaka Mimansa and a few other treatises, there is no ancient authority for the preposition that a child over five years of age cannot be validly adopted in the Dattaka form. The authenticity of the passage in question was questioned even before the date of the Dattaka Mimansa itself, if we accept the view that the Dajataka Chamirika, a work of equal authority, is of earlier date. The Dattaka Chandrika quotes the disputed passage and adds "As for what they quote thus from the Puranas, that is unauthentic" (Dattaka Chandrika Section 2 verse 25). It then proceeds to state that, "were it even authentic, the interpretations given by some, that one initiated in ceremonies down to that of tonsure under the family name of. the natural father bears no filial relation to the adopter, but such relation obtains where the ceremonies commencing with that of tonsure are performed by the adopter only, and if a child whose tonsure has been completed, by the natural father or one past live years of age be adopted, in that case the final relation does not accrue, are inaccurate." Alternative interpretations are then given and, in verse 30 the reference to the fifth year is said to apply only to Brahmins seeking the fruit of holiness resulting from a study of the Vedas. The translater of these two commentaries, Mr. Setlur, points out that the text of the Kalika Purana on which the limitation as to age of the adopted son'-is based, has been held to be spurious by the author of the Dattaka Chandrika and, that all the High Courts and many of the modern text writers are agreed in holding that the Hindu Law imposed, no restrictions as to age and, whatever be the age of the adopted son, it is now settled that his adoption is valid if made before upanayana, if he belongs to any of the regenerate classes, and before marriage if he belongs to the Sudra caste. (See Setlur's Complete Collection of Hindu law Books on Inheritance, page 388). Nilakantha the author of the Vyahara Mayukha (Chapter IV, Section 5, paragraph 20) points out that not much reliance is to be placed on the disputed passage as it is not found in two or three copies of the Kalika Purana. Sir Thomas Strange says:--"The affiliation of one whose coronal locks have not been reduced to the form of his patriarchal tribe is constantly inculcated. The age for this operation is the second or third year after birth, but it may be extended to the eighth which with Brahmins is the general period of the investitute, except for such as are destined for the priesthood upon whom it is performed at five. The stipulation, therefore, of five years as the extreme age for adoption may have reference to Brahmins of this description." (Hindu Law, Volume I, page 89) Rai Sahib Vishvanath Narayan Mandlik, a Sanskrit scholar of repute, in his work on the Mayukha (page 471) says "As regards age there is no restriction whatever. The only text restricting age is the one said to be from the Kalika Purana." He then refers to the authorities who have disputed the genuineness of the passage including Krishna Bhatta, who regards the passage as spurious, but even assuming it to be genuine explains it as referring to a son to be adopted by a King as his successor. W.H. Macnaughten, a recognised authority, says the authenticity of the passage is doubtful (Hindu Law, page 74). None of the modern text writers (so far as my research goes, place any reliance on the five years limit and some of them go so far as to say that, there is no valid authority for limiting the age, at all. The late Shastri Golap Chandra Sarkar in his Tagore Law Lectures strongly advocates this view and, contends that even the performance of the upanayana ceremony in, the family of the natural father is no bar to a subsequent adoption. "It should, however, be observed" says the learned author "that if you leave aside the passage in the Kalika Purana the authenticity of which is doubted, then there is no authority in Hindu Law for the proposition that any of the initiatory ceremonies must be performed in the adopter's family in order to cause filial relation, in other words, that if all or any of the initiatory rites for a person have been performed in the family of his birth, he becomes incapable of being adopted into any other family. The passage of Vasishta relied upon by the author of the Dattaka Chandrika does not lay down the rule that the up may and ceremony must be performed in the adopter's family, nor can such a rule be fairly inferred from it. Nor is there any passage of law declaring that in the case of Sudras marriage is a bar to adoption." (Sarkar's Hindu Law of Adoption, Second Edition, page 361). The early case-law on the subject affords little or no guidance for the decision of the present case, but in 1887 Mr. Justice Mahmood of the Allahabad High Court in a learned and elaborate judgment, in which Straight, J., concurred, reviewed the authorities at great length and arrived at the conclusion that the disputed passage in the Kalika Purana could not be relied upon as authentic and that the upanayana ceremony, which, in the case of Kshatriyas, may be performed as late as the 22nd year was the limit of age for a valid adoption See Ganga Sahai v. Lekhraj Singh 9 A. 253 : 5 Ind. Dec. (N.S.) 604. I see no reason no differ from the decision of the Allahabad High Court, arrived at after careful consideration in so far as it decided that the passage attributed to the Kalika Purana cannot be relied upon as authentic and that the adoption of a child over 5 years of age is permissible. The question whether, after the upanayana ceremony has been performed, a person belonging to the Kshatriya caste can be adopted does not arise in the present case as it is now admitted that the respondent's upanayana ceremony had not been performed at the date of his adoption. In my opinion the adoption of the respondent is not invalidated by reason of his age.

16. The second point urged before us raises the question whether the adoption ceremony was performed according to the correct ritual. The omissions urged were (1) that the Rajmata did not sit upon the bedi at the time when the dutta hotna was performed (2) that the charu homa was not performed, (3) that the sankalpa was not performed, and, (4) that the putreshti jag ceremony was not performed, and that this was essential as the respondent's tonsure ceremony had already taken place in the family of his natural parents. With regard to each of these points except the last no difficulty presents itself as there was evidence on the record from which a decision can be come to. With regard to the question of the putreshti jag ceremony there is no direct evidence from which it can be said whether that particular ceremony was performed or not. No point was raised as to this either in the pleadings or issues and no question was asked about it in cross-examination, although the evidence of Raj Guru Raghu Nath Brahma, the purohit of the Puri Raja, whose forefathers were Raj Gurus before him and who took the leading part in the performance of the ceremony, stated that the kuladiar (family customs) of the Puri Raja were performed on the adoption. Moreover the point was not taken before the Trial Court, nor was it raised amongst the 75 grounds of appeal set out in the appellant's memorandum of appeal. For these reasons I consider that we should not allow this question to be argued before us now, but in case this appeal should go further I propose to state shortly my opinion on the assumption that this particular ceremony was not in fact performed. The foundation upon which its performance is claimed as a necessary adjunct to a valid adoption is the disputed passage in the Kalika Purana already referred to, The view that it was necessary in cases where the tonsure ceremony had already been performed, appears to be based upon the explanation of the passage given in verses 49 ^and 52 of Section 4 of the Dattaka Mimanasa, which has been interpreted by some authorities as meaning that adoption even after tonsure may be validated by the performance of the putrershti jug, or sacrifice for male issue, but not otherwise. If however the text upon which it is founded is not authentic the explanation can have no greater authority. The only case quoted in support of the appellant's contention on this point is Luchmun Lull v. Mohun Lall 16 W.R. 179 in which Dwarka Nath Mitter, J., is reported to have said that the performance of the putreshti jag is essential to the validity of an adoption in the Dattaka form amongst the three superior classes. In the later case of Kalki v. Lakpali Pujari 27 Ind. Cas. 39 : 20 C.W.N. 19 : 19 : 20 C.L.J. 319 the Calcutta High Court expressed the view that the words putreshti jag in the former judgment were inadvertently used for datta homa, and on this assumption refused to follow it in the case of an adoption of a son belonging to the same gotra as his adopted father. Again in this Court in the case of Sheo Lotan Rai v. Bhirgun Rai 41 Ind. Cas. 375 : 2 P.L.J. 481 : 1 P.L.W. 784 it was held that the putreshti jag ceremony was a matter of form and not essential to an adoption. It is true that in that case the parties belonged to the same gotra, and, in so far as the view expressed applies to parties belonging to different gotras, it was obiter. In Asita Mohan Ghose v. Nerode Mohan Ghose 35 Ind. Cas. 127 : 20 C.W.N. 901 the Calcutta High Court also held that the putreshti jag was not an essential element in the ceremony of adoption, but this was in the case of Sudras. Apart from the dictum attributed to Dwarkanath Mitter, J., in Luchmun Lall v. Mohun Lall 16 W.R. 179 which has been characterised as a lapsus lingua in a later case in the same High Court, there is no direct authority in the appellant's favour on this point. Although the question is not free from doubt. I should be prepared to hold if necessary that the ceremony is not essential to the validity of an adoption even amongst the regenerate classes. In this connection I would refer to the view of Sir Thomas Strange who in dealing with the mode and form of adoption says: "There must be gift and acceptance, manifested by some overt act. Beyond this, legally speaking, it does not appear that anything is absolutely necessary. And even with regard to the sacrifice of fire, important as it may be deemed, in a spiritual point of view, it is so with regard to the Brahmin only; according to a constant distinction, the texts and glosses upon matters, of ritual observance, between those who keep consecrated the holy fire, and those who do not keep such fires, i.e., between Brahmins and other classes." He then refers to the decision of Sir John Anstruther, C. J., in the case of the Raja of Nobkissen and continues "And, even with regard to Brahmins, admitting their conception in favour of its spiritual benefit, it by no means follows that it is essential to the efficacy of the right for civil purposes, but the contrary is to be inferred and the conclusion is, that its validity, for these consists generally in the consent of the necessary parties, the adopter having at the time no male issue, and the child to be received being within the legal age and not being either an only or the eldest son of the giver; the prescribed ceremonies not being essential. Not that an unlawful adoption is to be maintained; but that a lawful one, actually made, is not to be set aside for any informality that may have attended its solemnization." (Hindu Law Volume I, page 95).