The adoption of a wife's sister's daughter's son is valid in law under the Banaras School of Mitakshara Hindu Law.

Judgment

DAS GUPTA, J. : Can a wife s sister s daughter s son be validly adopted to a person governed by the Banaras School of the Mitakshara Hindu Law ? That is the main question raised in this appeal brought on a certificate granted by the High Court at Patna. The plaintiffs who would succeed to the properties left by Babu Ram Singh on the death of his widow but for the adoption of Devendra Singh which this widow made on June 9, 1935, brought the present suit for a declaration that Devendra Singh was not adopted by the second defendant, Babu Ram Singh s widow and that in any case, the adoption is invalid in law and so Devendra Singh acquired no right in the properties left by Babu Ram Singh.

2. The main ground on which the adoption is attacked as invalid is based on the fact that Devendra Singh is Babu Ram Singh s widow s sister s daughter s son. The other ground raised in the plaint based on the plaintiff s allegation that Babu Ram Singh was governed by Mithila School of Hindu Law was negatived by the courts below and has been abandoned before us. No dispute is also raised now as regards the factum of adoption. The only question that arises in this appeal therefore is whether the adoption of a wife s sister s daughter s son is valid in law. The High Court answered this question in the affirmative and dismissed the suit. It is against that decision that the present appeal has been preferred .

3. In support of his contention that such an adoption is invalid in Hindu law reliance is placed by the learned counsel on the following passage of Nanda Pandit s Dattak Mimansa :

(See Whiteley Stoke s Hindu Law Books at pp. 590 and 591).

17. Accordingly, the brother, paternal and maternal uncles, the daughter s son, and that of the sister, are excluded: for they bear no resemblance to a son.

18. Intending this very position, it is declared in the sequel, by the same author : The daughter s son, and the sister s son, are declared to be the sons of Cudras. For the three superior tribes, a sister s son, is nowhere mentioned as a son. Here even the term "sister s son" is illustrative of the whole not resembling a son, for prohibited connection is common to them all. Now, prohibited connection is the unfitness of the son proposed to be adopted to have been begotten by the individual himself through appointment to raise issue on the wife of another.

19. The mutual relation between a couple, being analogous to the one, being the father or mother of the other, connection is forbidden: as for instance -the daughter of the wife s sister, and the sister of the paternal uncle s wife". The meaning of the text is this. Where, the relation of the couple, that is of the bride and bridegroom, bears analogy to that of father or mother; if the bridegroom be, as it were, father of the bride, or the bride stand in the light of mother, to the bridegroom, such a marriage is a prohibited connection. The two examples illustrate these cases in their order.

20. In the same manner as in the above text, of the Grihaparisistha, on marriage, prohibited connection, in the case of marriage, is excepted and so in the case in question, one who if begotten by the adopter, would have been the son of a prohibited connection, must be excepted; in other words, such person is to be adopted, as with the mother of whom, the adopter might have carnal knowledge.

It is urged that in view of this specific exclusion of a wife s sister s daughter s son from the list of those who are fit for adoption there is no escape from the conclusion that such an adoption would be invalid in law. Learned Counsel has emphasised that great authority attaches to all statements of law as regards adoption that are contained in Dattak Mimansa. There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms cha