Judgement

Appeal from a judgment and decree of the High Court (December 15, 1909) reversing a judgment and decree of the Subordinate Judge of Mainpuri (May 18, 1908).

One Gandharp Singh, a wealthy Brahman, died childless in November, 1898, leaving him surviving as his sole heir according to Hindu law his widow, the first respondent. On June 17, 1902, she executed a deed by which she declared that, with the oral permission of her late husband, she had adopted the second respondent, who was her brothers son and then about twelve years of age.

On June 17, 1907, the appellants instituted the suit, claiming to be reversionary heirs of Gandharp Singh, and praying for a declaration that the alleged adoption was invalid.

The Subordinate Judge held that the ceremony of adoption did in fact take place, but neither at the time nor with the publicity alleged by the respondents, and without the authority of Gandharp Singh. While recognizing that it was his duty to follow the decision of the High Court in Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.), in which it was held that a widow could validly adopt her brothers son, the learned Subordinate Judge, upon an elaborate discussion of the texts, expressed the view that the adoption was invalid according to Hindu law. He made a decree in favour of the plaintiffs (appellants).

The High Court (Sir J. Stanley C.J. and Banerji J.) concurred in the finding of the Subordinate Judge that the adoption had in fact taken place, but differed from his finding as to the authority, which they held to be established by the evidence. The learned judges pointed out that upon the question of the validity of a widows adoption of her brothers son the Subordinate Judge was bound by the previous decision of the High Court above referred to, and they did not consider it necessary further to discuss that question.

Lowndes, for the appellants. Upon the evidence the alleged oral authority to adopt was not established. But if it were, the adoption by the widow of her brothers son was invalid. The Dattaka Mimansa (s. 2, vv. 33 and 34, and s. 5, v. 16) contains a definite prohibition against a widow adopting her brothers son. The very high authority of the Dattaka Mimansa appears from the judgments in Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (( 1899) L. R. 26 Ind. Ap. 113, at p. 131.) and Bhagwan Singh v. Bhagwan Singh. (( 1899) L. R. 26 Ind. Ap. 153,at p. 161.) The following modern authorities support the view that the adoption is invalid Stranges Hindu Law, ch. iv., par. 2 (6th ed.),

p. 83; Sir F. Macnaghtens Considerations of Hindu Law (1824), p. 170; W. H. Macnaghtens Hindu Law ( 1839), vol. i., p. 67; West and Buhlers Digest (3rd ed.), p. 1032 ; and it was directly so held in Musammat Battas Knar v. Lachman Singh. (( 1875) 7 N. W. P. H. C. 117.)

A widow is precluded from adopting a son whom she could not have procreated with the natural father without incest. The prohibition is connected with the obsolete custom of niyoga, under which a sapinda or other person was appointed to procreate upon a wife or widow a son to a sonless man. The authorities all support the prohibition down to the publication of Maynes Hindu Law in 1878. His view (see Maynes Hindu Law, 7th ed., par. 137, p. 176) cannot weigh against the great authority of the Dattaka Mimansa. In Sriramulu v. Ramayya (( 1881) I. L. R 3 Madr. 15.) the adoption was by the husband; that case is, therefore, not in point. The decisions in Bai Nani v. Chunilal (( 1897) I. L. R. 22 Bomb. 973.) and Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.) are erroneous. [Vellanki Venkata Krishna Row v. Venkata Narsayya (( 1876) L. R. 4 Ind. Ap. 1.) was also referred to.]

[Their Lordships intimated that they only required to hear the respondents counsel upon the question whether the adoption was invalid in law.]

De Gruyther, K.C., and Dale, for the appellants. The decision and reasons in Jai Singh Pal Singh v. Bijai Pal Singh (I. L