The adoption of a person whose mother the adopter could not have legally married is invalid under Hindu law.

Ramaswami, J.

1. The sole question of law involved in this appeal is whether the adoption of Ado Rai by Babulal was valid in Hindu law.

2. It has been found by the lower appellate Court that Ado Raj was related to his adoptive father, Babulal, in the following manner. One Asha had two daughters, Lakho and Sampat Babulal is the son of Sampat. Lakho had a son, Nawab, who had a daughter, Tipno, and Ado Rai is the son of Tipno. The lower appellate Court has found that no valid marriage could hare taken place between Tipno in her maiden state and the adoptive father, Babulal, because they are within the prohibited degrees.

The lower appellate Court, therefore considered that the adoption of Ado Rai was invalid and, accordingly, decreed the suit in favour of plaintiff No. 3. It is also admitted in this case that the parties are Rajputs by caste.

3. In support of this appeal, learned Counsel on behalf of the appellant presented the argument that the adoption of Ado Rai by Babulal was legally valid and, in support of his argument, learned Counsel referred to the decision of this Court in Sri Ham V/s. Chandeshwar Prasad Narayan Singh, AIR 1952 Pat 438 (A). In that case it was held by a Division Bench of this Court that the rule of the immoral and obsolete practice of Niyoga should not be invoked in order to ascertain who could or could not be adopted and any legal objection raised to the validity of adoption as being contrary to Niyoga rule could not be sustained.

But this case has no bearing on the present cass because the question at issue in AIR 1952 Pat 438 (A), was with regard to the validity of adoption of the wifes brothers sons son. In that case the marriage between the adoptive father and the mother of the adopted boy in her maiden state would have been legal. I, therefore, consider that the decision in AIR 1952 Pat 438 (A), has no bearing on the question to be determined in the present case.

In the next case, Mt. Saraswati Kuer V/s. Debendra Singh, AIR 1956 Pat 340 (B), it was held that the adoption of wifes sisters daughters son was not invalid according to the Banares School of Hindu Law. The decision was reached on application of the principle that the practice of Niyoga should not be invoked in order to ascertain who could or could not be adopted. But the same decision would have been reached in that case if "the marriage rule" had been applied because it is obvious that the marriage between the adoptive father and the mother of the adopted boy in that case would have been legally valid.

4. The next case upon which Counsel for the appellant relied is the case of Chandi Charan V/s. Nabagopal Sarkhol, (S) AIR 1957 Pat 365 (C). In that case also it was observed that any legal objection raised to the validity of adoption as being contrary to Niyoga rule could not be sustained. From the record of that case it appears that Mahesh, the adoptive father, was the son of the maternal uncle of the adopted son, Haripado. The decision of that case proceeds upon the ground that there was legal marriage possible between the adoptive father and the mother of. the adopted son in her virgin state. The principle laid down in that case has, therefore, no relevance to the decision of the present appeal.

5. In my opinion the present case is governed by the principle of Hindu Law that no one can be adopted whose mother in her maiden state the adopter could not have legally married. This prohibition is contained in Dattaka Chan-drika and Dattaka Mimansa. But there has been considerable controversy about the binding character of this rule. The rule has been criticised by Mr. V.N. Mandlik in his translation of Vyava-hara Mayukha and Yajnavalkya. But the principle was affirmed by the High Court of Madras in Minakshi V/s. Ramanada, ILR 11 Mad 49 (D), after full examination of the argument of Mr. V.N. Mandlik. The conclusion was reached in that case by all the learned Judges who constituted the Full Bench that it was a general rule of Hindu La