Judgement

The first of these appeals was from a decree of the High Court of Madras (Sept. 20, 1894) affirming a decree of the District Court of Godaveri (Sept. 20, 1893) and dismissing a suit of the appellant to set aside an adoption made by the first respondent, the widow of one Butchi Sarvarayudu.

Law. Rep. 26 Ind. App. 113 ( 1898- 1899) Balusu Gubulingaswami V. Balusu Ramalakshmamma

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On November 10, 1888, the widow adopted the second respondent, Sri Balusu Pattabhiramaya, the only son of a distant relation of the deceased Butchi, who had died when his son was about three months old. It was found by both Courts that he had expressed his wishes in favour of the adoption; and it was not disputed that before the adoption the male members of Butchis family were consulted and consented to it, several of them in writing. The appellant was the brother of the natural father of the adopted Roy, and succeeded to the rights which the Roy relinquished on his adoption.

The prayer of the plaint was to set aside this adoption, " by reason of the first defendant not having been legally authorized to make it, and by reason of the said defendant having been an only son, and as such not being disposable in adoption."

The main issue raised was one of law as to the invalidity of the adoption of an only son. Both Courts decided that the adoption was valid. They rested their judgments upon the course of decisions in Madras, and did not examine the conflicting decisions in Bengal and Bombay.

Mayne, for the appellant, contended that the adoption of an only son is forbidden by Hindu law and is invalid. The Hindu authorities in favour of that proposition are, first, the texts of the Rishis Vasishtha, see Max Miillers Sacred Books of the East, ch. xv. ss. 1-5, and Col. Dig. Bk. V. c. iv. s. 8, No. 273; Baudhayana, cited in Dattaka Mimamsa, s. V. vv. 31 and 42; Saunaka, as quoted in Vyavahara Mayukha, c. iv. s. V. v. 9, Stokes Hindu Law Books, p. 61; and see for all three Rishis citations in Lakshmappa v. Ramava (( 1875) 12 Bomb. H. C. 377.); and in Dattaka Mimamsa, s. 4, v. 1 et seq., Stokes, p. 571. Compare Menu, IX. 142. Second, the Hindu commentators see Dattaka Mimamsa, sect. 4, vv. 1-6, Stokes, p. 571; Dattaka Chandrika, sect. 1, vv. 27-30, Stokes, p. 635; Mitakshara, c. 1,

s. xi. vv. 9-12, Stokes, p. 416; Sarasvati Vilasa, p. 74, ss. 368, 369, and see preface; Viramitrodaya (Sarkar), p. 115, § 8, see preface, p. 14. The Viramitrodaya is held by the Privy Council to be a work of especial authority in Benares on any point left doubtful by the Mitakshara see Collector of Madura

v. Moottoo Ramalinga (( 1868) 12 Moores Ind. Ap. Ca. 438.) and Gridhari Lall Roy v. The Bengal Govern ment. (( 1868) 12 Moores Ind. Ap. Ca. 448.) Then come the more modern authorities of English writers see the opinion of Colebrooke, as given in 2 Stranges H. L. 105, 106, 107; Ellis, ibid. pp. 105, 106, 107; Sir T. Strange, 1 Strange, 85, and Stranges Manual, p. 18, No. 98; Sutherlands Synopsis, Stokes, p. 665; 1 W. Macnaghten, 67 ; 2 W. Macn. 178, 179, 182, 192, 195, and Sir F. Macn. 147; Steeles Castes, p. 45, s. 39; p. 183, s. 39; West and Buhler (3rd ed.),

p. 909, 912, 1040; Jagannathas Digest, Book V. c. iv. s. viii. para. 273, note. The doctrine of factum valet does not apply; the adoption being wholly void, there was no factum, and the transaction is a nullity. Reference was made upon the subject of factum valet to Lakshmappa v. Ramava (12 Bomb.

H. C. 397.); Gopal Narhar Safray v. Hanmant Ganesh Safray (( 1879) Ind. L. R. 3 Bomb. 293) ; Ganga Sahai v. Lekhraj Singh (( 1886) Ind. L. R. 9 Allah. 296.); Srimati Uma Devi v. Gokoolanund Mahapatra. (( 1878) L. R. 5 Ind. Ap. 53.)

With regard to the current of decisions in the Madras Presidency, the first was Veerapermall Pillay v. Narrain Pillay ((1801) 1 Strange, N. C. (ed. 1827) 78), where the ruling was in the first place an obiter dictum, and in the second was discredited by Sir T. Strange in 1 Stranges H. L. 102. Then