1. This is an appeal by the third and fourth defendants in asuit for declaration of title to land and for recovery of possession thereof.The property in dispute belonged to Pitabas, one of four brothers who weremembers of a Hindu family governed by the Mitakshara Law. The plaintiff, is oneof the sons of a brother of Pitabas, and his case is that he was taken inadoption by his uncle in the year 1900. The defendants, now appellants, are twoof the daughters of Pitabas, who would be entitled to succeed to the estate oftheir father in the absence of an adopted son. They consequently challenge thefactum, as also the validity of the alleged adoption. The Courts below haveconcurrently found in favour of the plaintiff and decreed the suit. They haveheld on the evidence that the adoption did in fact take place, that since thenthe plaintiff has been treated as the son of Pitabas, that his thread and marriageceremony has been performed as such, and that he has performed the annualshradh ceremony of his adoptive father and enjoyed the turn of worship of thefamily deity as his successor-in-interest. The Courts below have also held thatthere is no evidence that the datta homa ceremony was performed on the occasionof the adoption of the plaintiff, but they have taken the view that as theplaintiff was the nephew of his adoptive father, the performance of suchceremony was not essential. In this view, the adoption has been held valid andthe claim of the plaintiff to the estate of his adoptive father sustained. Thedefendants have appealed to this Court and have reiterated the objection thatthe adoption was invalid, as the parties are Brahmins in whose case the dattahoma ceremony is essential; in support of this view, reliance has been placedupon the case of Luchmun Lall v. Mohun Lall 16 W.R. 179, where DwarkanathMitter, J., stated that the performance of the putrashtijag (apparently writteninadvertently for datta homa) is essential to the validity of an adoption inthe dattaka form among the three Superior castes. On behalf of the respondent,it has been argued that this is not an accurate statement of the rule on thesubject, that in any event it is too broadly formulated, and that no datta homais necessary when the son of a brother is taken in adoption. In support of thiscontention, reference has been made to the cases of Atmaram v. Madho Rao 6 A.276 : A.W.N. (1884) 82 Govindayyar v. Dorasami 11 M. 5 and Valubai v. Govind24. B. 218 : 1 Bom. L.R. 786. In our opinion, the contention of the plaintiffmust prevail that the validity of his adoption has not been affected by thenon-performance of the datta homa.

2. The claim of the plaintiff is supported by a textattributed to Yama: "The homa or the like ceremony is not necessary in thecase of adoption of the daughters or the brothers son; by the verbal gift andacceptance alone, that is accomplished; this is declared by the LordTama." This text is quoted by the authors of the Dattaka Kaumudi andDattaka Darpana as one of Devala mentioned in the Saraswati Vilasa of Dwaipayna(Dattaka Siromani by Prof. Bharat Chandra Siromani published under thedirection of Prasanna Kumar Tagore, pages 45, 92, 244, 246) and the comment isadded by the author of the Dattaka Darpana that the expression brothers sonincludes persons who are sapindas and sagotras, and that consequently it isonly when an adoption is made of a Samanodaka or Sakulya Sagotra, the rule forperformance of the datta homa ceremony operates. The text, which was quoted asearly as 1821 by the Pandits consulted in connection with the case of HuebantRao v. Govindrao (1821) 2 Borrodaile 83, has also been accepted as genuine inthe cases of Valubai v. Govind 24. B. 218 : 1 Bom. L.R. 786 and Atmaram v.Madho Rao 6 A. 276 : A.W.N. (1884) 82, and its authority was treated asunquestionable by V.N. Mandlik (Yajnavalykya, page 483). The rule enunciated inthe text of Tama was also recognized by a Full Bench of the Madras High Courtin Govindayyar v. Dorasami 11 M. 5, on the authority of an opinion expressed byEllis that datta homa, though proper in all cases, was not indispensable if theperson adopting and the boy adopted were of the same gotra. It has been argued,however, that the text of Tama is not based on any intelligible reason whichcould justify a departure from the general rule that the datta homa is anessential ceremony for the validity of an adoption amongst members of the threeregenerate classes. We are not prepared to accept this contention aswell-founded. There has been considerable divergence of opinion amongsttext-writers, ancient and modern, which is reflected also in judicial decisionsupon the question whether the datta homa is essential for the validity of anadoption, and even if it be conceded that there is a strong body of opinion infavour of the view that it is obligatory in the case of adoption amongstBrahmins, we would not be disposed to ignore or even to minimise the effect of anexception for which direct authority may be found in a text of unquestionablegenuineness and authority.

3. To take the texts first, it is plain that Manuundoubtedly contemplated nothing more than gift and acceptance for the validityof an adoption in the dattaka form, as in defining the dattaka son he says thatthe gift is to be made together with water, that is, as Sir "William Jonesrenders it, the gift is confirmed by pouring water. That (hoy) equal (by caste)whom his mother or his father affectionately gives, (confirming the gift) with(a libation of) water, in times of distress (to a man) as his son, must beconsidered as an adopted son (Datrima)" [Mann, IX, 168; S.B.E. Volume XXV,page 861]. It is noteworthy that none amongst the commentators of Manu, noteven Medthatithi, the oldest among them, touches upon this question (MandaliksManu, page 1202). Vasistha describes the ceremonies in a more developed form,though not in the passage (XVII, 29; S.B.E. Volume XIV, page 87) where heclassifies the different kinds of sons. He directs that he who desires to adopta son shall assemble his kinsmen, announce his intention to the king, makeburnt offerings in the middle of the house, reciting the Vyahritis, and take(as a son) a not remote kinsman, just the nearest among his relatives."(Vasistha, XV, 6; S.B.E. Volume XIV, page 75; Mitakshara, I, 11, 13; DattakaMimansa, II, 51; Dattaka Chandrika, II, 11.)

4. The ritual is further elaborated by Baudhayana (VII, 5;S.B.E. Volume XIV, pages 334-336; Dattaka Mimansa V, 42; Dattaka Chandrika II,16; Journal, A.S.B. Vol. XXXV, page 162), though not in the passage where heclassifies the various kinds of sons (II, 2, 3, 20; S.B.B. Volume XIV, page227). An equally elaborate description is given by Saunaka [Dattaka Mimansa (V,2, 42); Dattaka Chandrika (II, 1, 3, 5, 7, 9); Vyavahara Mayukha (IV, 5,paragraphs 8, 36-42); Mandalik, pages 50-53, 63-65; Buhler, Journal A.S.B.,Volume XXXV, page 149]. These statements, nothing like which can be foundeither in Yajnavalkya (II, 130; Mandlik, page 219) or in Vishnu (XV, 18-19;S.B.E. Vol. VII, page 63), still leave the question open whether theperformance of the homa is essential for the validity of the adoption, becausethey enumerate it along with other matters, such as the assembly of the kindredand notice to the king, which have never been deemed indispensable to validatethe adoption. The Mitakshara and its commentaries, Subodhini and Balambhatti,though referring specifically to the text of Vasistha, do not raise thequestion at all [Mitakshara, Ed. Setlur, page 695]. A similar observationapplies to Apararka, who in his commentary on Yajnavalkya (II, 130) contentshimself by quoting the verse of Manu (IX, 168). When, however, we come to theDattaka Mimansa, we find definite rules laid down on the subject; paragraph 50of section V lays down that the filial relation of the five sons previouslymentioned proceeds from adoption only with observance of the form of eitherVasistha or Saunaka and not otherwise. This is emphasised in section V,paragraph 56, where the general conclusion is stated that the filial relationof adopted sons is occasioned only by the proper ceremonies, and that thefilial relation even fails, should either gift, acceptance, a burnt sacrament andso forth, be wanting. [Reference may also be made to section V, paragraph 47,where an ingenious attempt is made to read this interpretation into the simpletext of Manu (IX, 168), and to section V, paragraph 55, where a quotation fromMedhatithi, which cannot be traced in his commentary on Manu, is similarlytreated.] To the same effect is the statement in the Dattaka Chandrika, sectionII, paragraph 17, where it is recited, after the description in paragraph 16 ofthe mode of adoption prescribed by Baudhayana for followers of the TaittiriVeda, that in case no form as propounded should be observed, the adopted sonwill be declared entitled to assets sufficient for his marriage. This isreiterated in section VI, paragraph 3, where reliance is placed on a text ofManu which has not been traced: "He who adopts a son without observing therules ordained, should make him the participator of the rites of marriage, nota sharer of the wealth." In this connection, it is worthy of note that theopinion has been expressed by Sastri Golap Chandra Sarkar (Tagore Lectures onAdoption, page 124; Hindu Law, 4th Edition, page 126), that the DattakaChandrika was composed about the year 1800 for the purposes of a particular,litigation, by one Raghumani Vidyabhusana who passed it off as the work ofKuvera. Serious notice need not accordingly be taken of a text which has notbeen found in the Institutes of Manu. There remains, however, the opinion ofthe author of the Dattaka Mimansa, which is, no doubt, entitled to weight. Asagainst his opinion, we have the contrary view maintained by commentators ofrepute. Shankarabhatta, in his work styled the Dharma Dvaita Nirnaya, in thechapter styled the "Solution of doubts in regard to adoption," whichhas been translated by Mandalik (page 55, lines 39-42), says that by theoperation of the rule Yatha Saktinyaya (the rule which enjoins the observanceof a precept as far as possible), the homa (sacrifice) or the like, which is apart of the ritual enjoined for adoption, may be disregarded, for the ruleproperly applies with regard to the details of an enjoined ritual.Laugakshibhaskara, as Mandalik points out (Yajnavalkya, page 509), goes intothis question very elaborately and comes to the conclusion that the homa(sacrifice or any other ceremonies beyond giving and taking are not essentialfor any of the four classes. The Dattaka Darpana, as we have already stated,declares the, performance of the homa and other ceremonies unnecessary wherethe person to be adopted is a near relation, on the strength of a liberalinterpretation of the expression "brothers son" in the test of Yama.The Dattaka Nirnaya (Dattaka Shiromoni, page 238) declares an adoptionperformed without homa to be valid, at least in the case of Sudras. The DattakaKaumudi (Dattaka Shiromoni, page 245) quotes the commentary of Maheswara andthe Dayakala of Bhabadeva as authorities in favour of the validity of anadoption where the datta homa ceremony has not been performed. Jagannath, inhis great Digest of Hindu Law, translated by Colebrooke, after an elaborateexamination of the texts, comes to the conclusion that an adoption without theperformance of the datta homa is valid (Volume III, page 323; Book V, Chap. IV,section VIII, paragraph 273). Jagannath observes that the gift and acceptanceonly are essential, and that the homa or oblation to the fire with holy wordsfrom the Veda is an unessential part of the ceremony; even though it bedefective, the adoption is nevertheless valid, for no one admits that theprincipal object is unattained in an unessential part be defective. Jagannathdirects a very weighty criticism against the position that the datta homa isnecessary: if you say that the performance of the homa is essential, then youcannot but admit that it must be accurately, properly and completely performed;for if there be any defect in its performance, it cannot serve the purpose; butif you say that even a defective homa is sufficient, you necessarily admit thatit is not essential. There can be no question as to the weight to be attachedto an opinion expressed by Jagannath Tarkapanchanan, who, as stated byDwarkanath Mitter, J., in Kery Kolitany v. Moneeram Kolita 13 B.L.R. 1 at p. 44: 19 W.R. 367, was one of the most learned Pandits that Bengal had ever producedand whose authority on questions of Hindu Law ranks only next to that ofJimutavahana, Raghunandana and Srikrishna. The divergence of opinion to whichwe have referred has led to a similar want of unanimity amongst leadingtext-writers of the last century. Thus, Shama Churn Sirkar strenuouslymaintained to the end the view that the datta homa is essential, not only inthe case of the three regenerate classes, but also in the case of Sudras, andwrote a learned criticism on the contrary opinion established by a Full Benchof this Court [Behari Lal v. Indramani 13 B.L.R. 401 : 21 W.R. 285],subsequently approved by their Lordships of the Judicial Committee, Indromaniv. Behari Lal 7 I.A. 24 : 5 C. 770 : 6 C.L.R. 183 : 4 Sar. P.C.J. 120 : 3 Suth.P.C.J. 719 : 4 Ind. Jur. 192 : 3 Shome L.R. 180; [Vyavastha Darpana, 3rdEdition, Part I, page 355, Part II, page 574; Vyavastha Chandrika, Part II,page 125] Dr. Jogendranath Bhattacharyya acquiesced in the view that the dattahoma is not necessary in the case of Sudras, but maintained that it isessential in the case of the three regenerate classes [Hindu Law, 3rd Edition,Volume I, page 450]. On the other hand, Sastri Golap Chandra Sarkar follows theview of Jagannath that the absence of the datta homa does not in any caseaffect the validity of an adoption (Tagore Lectures on Adoption, page 377).

5. When we turn to examine the course of judicial decisionson the subject, we meet with a similar absence of uniformity. But one point isnow finally settled, viz., no religious ceremony is essential in the case ofadoption by Sudras. This had been formulated by the Supreme Court of Calcuttaas early as 1800 when Sir John Anstruther, C.J., with the concurrence of Roydsand Russell, JJ., held, in the case of Gopee Mohan Deb v. Sree Rajcristha Deb(1800) Mort. Montriou Hindu Law Cases 381 : 1 Ind. Dec. (o.s.) 232, that theadoption was validly made if gift and acceptance of the child by an overt actwas shown to have taken place. The elaborate judgment of the Chief Justice ismentioned by Sir Thomas Strange in his Elements of Hindu Law, 1825, Volume 1,Page 84, but has never been traced. There was, after this, a uniform successionof decisions to that effect: Joymony Dossee v. Sibosoondry Dossee (1837) Fulton75 : 1 Ind. Dec. (o.s.) 689, Dayamayee v. Rasbihari (1852) Beng. S.D.A. 1001,Ramkishore v. Bhubanmayee (1859) Beng. S.D.A. 229, Perkash Chandra v. Dhanmani(1858) Beng. S.D.A. 96, Sreenarain v. Kishen Soondery 11 W.R. 196. The flow ofthis current was, however, interrupted by the contrary view taken inBhairubnath v. Mohesh Chandra 4 B.L.R. (A.C.) 162 : 13 W.R. 168 and Sayamalalv. Saudamini Dasi 5 B.L.R. 362 : 2 Ind. Jur. (n.s.) 24 : Bourke 189, which weredoubted and disapproved in Nittianund v. Krishna Dyal 7 B.L.R. 1 : 15 W.R. 300and were ultimately overruled by the Full Bench in Behari Lal v. Indramani 13B.L.R. 401 : 21 W.R. 285, the decision wherein was confirmed on appeal to theJudicial Committee, Indromoni v. Behari Lal 7 I.A. 24 : 5 C. 770 : 6 C.L.R. 183: 4 Sar. P.C.J. 120 : 3 Suth. P.C.J. 719 : 4 Ind. Jur. 192 : 3 Shome L.R. 180.This brought the rule on this point into harmony with what had been laid downin Sootrugun v. Sabitra (1834) 2 Knapp. 287 at p. 290 : 5 W.R. (P.C.) 109 : 12E.R. 489 [on appeal from Sabitreea v. Sutur Gun (1812) 2 Mac. Sel. Rep. 21],Veerapermall v. Narain (1801) 1 Strange (N.C.) 78 at p. 91 : 5 Ind. Deo. (o.s.)41, Alwar v. Ramaswamy (1858) 2 Mad. S.D. 67 and Thangathanni v. Ramu Mudali 5M. 358. The principle that religious ceremonies are not necessary in the caseof an adoption by a Sudra has been applied to support the inference that aSudra leper can adopt, Sukmari v. Ananta 28. C. 168; see also Shoshinath v.Krishnasundari Dasi 7 I.A. 250 a p. 256 : 7 C.L.R. 313 : 6 C. 381 : 3 ShomeL.R. 231 : 4 Sar. P.C.J. 191 : 3 Suth. P.C.J. 812 : 4 Ind. Jur. As regards thethree regenerate classes, however, the point is by no means settled. The dictumof Lord Wynford in Sootrugun v. Sabitra 1834) 2 Knapp. 287 at p. 290 : 5 W.R.(P.C.) 109 : 12 E.R. 489 undoubtedly admits of a wide interpretation, and inMadras it was actually decided in Singamma v. Yinjamuri Venkatacharlu 4M.H.C.R. 165, on the strength of the opinion of Jagannath and the decision ofSir Thomas Strange in Veerapermall v. Narain (1801) 1 Strange (N.C.) 78 at p.91 : 5 Ind. Deo. (o.s.) 41, that even in the case of Brahmans, the gift andacceptance of a boy qualified to be adopted is sufficient to constitute a validadoption according to Hindu Law. A similar view was adopted in the case of aKshatriya in Chandramala v. Muktamala 6 M. 20 : 6 Ind. Jur. 627, and of aNambudri Brahman in Shankaran v. Kesavan 15 M. 6. But the tide has apparentlyturned back in Madras, and the view taken in Singamma v. YinjamuriVenkatacharlu 4 M.H.C.R. 165 has been doubted in Venkata v. Subhadra 7 M. 548 :8 Ind. Jur. 557 and Subbarayar v. Subbammal 21 M. 497, though it has been heldin the second of these cases that the datta homa, which had not been performedby the adoptive father, could, after his death, be performed by hiswidow." The later view in Madras, as indicated in Govindayyar v. Dorasami11 M. 5 and Ranganayakamma v. Alwar Setti 13 M. 214, is sought to be supportedby reliance on the dictum of the Judicial Committee in Shoshinath v. KrishnasundariDasi 7 I.A. 250 a p. 256 : 7 C.L.R. 313 : 6 C. 381 : 3 Shome L.R. 231 : 4 Sar.P.C.J. 191 : 3 Suth. P.C.J. 812 : 4 Ind. Jur. to the effect that amongst thetwice-born classes, there can be no valid adoption by deed, and certainreligious ceremonies, the datta homa in particular, are in their caserequisite." A similar view is embodied in the extract from Savara Swamitranslated by Ellis (Stranges Hindu Law, 1825, Volume II, page 192) and hadalso been put forward by the Pandits who were consulted in the cases of AlankManjari v. Fakir Chand (1834) 5 Mac. Sel. Rep. 356 (418 N.E.) : 7 Ind. Dec.(o.s.) 650 and Bullubakant v. Kishenprea (1838) 6 Mac. Sel. Rep. 219 (270 N.E.): 7 Ind. Dec. (o.s.) 869. The statement by Dwarkanath Mitter, J., in Luchmun v.Mohun 16 W.R. 179, to which reference has already been made, points in the samedirection, and Thakoor Oomrao Singh v. Thakooranee Mehtab Koonwer 3 Agra.H.C.R. 103 leads to the same conclusion, though it recognizes that the ceremonymay be performed at any place. There are also expressions in Ravji v.Lakshmibai 11 B. 381 at p. 393 which may possibly be called in aid by those whoseek to support the more stringent rule. In this diversity of judicial opinion,it must be conceded that the principle that datta homa ceremony is essentialfor the validity of an adoption among Brahmans still counts a strong body ofsupporters, and that the rationalistic view has not yet finally triumphed overformalism Yet among all this divergence of opinion, the doctrine clearlyemerges that the datta homa is not necessary when the adoptive father and theadopted child belong to the same gotra: Govindayyar v. Dorasami 11 M. 5,Ranganayakamma v. Alwar 13 M. 214, Thanathanui v. Rama Mudali 5 M. 358,Vedavalli v. Mangamma 27 M. 538 : 14 M.L.J. 340, Valubai v. Govind 24. B. 218 :1 Bom. L.R. 786, Atmaram v. Madho Rao 6 A. 276 : A.W.N. (1884) 82 Nittianund v.Krishna Dyal 7 B.L.R. 1 : 15 W.R. 300. It has, indeed, been argued that thisdistinction is not based on logical grounds, and that the view cannot bemaintained that datta homa becomes unnecessary where the adoptive father andthe adopted child belong to the same gotra, because a change of gotra is notnecessary in such a case. It is not necessary for our present purpose to examine,whether what is thus regarded as an exception is based on logical grounds, or,as is not improbable, really indicates a modern relaxation of the primitiveinflexible rule, in the growth of which, as in so many archaic systems,formalism exercised a dominating influence. Whether the rule itself willultimately stand discredited and disappear, it is needless to speculate in thisinstance; it is sufficient to hold that the present case falls within the textof Yama and is covered by a long series of decisions which affirm the doctrinethat even amongst twice-born classes, the datta homa is not essential when theadopted boy is of the same gotra as his adopter.

6. In this view, the validity of the adoption of theplaintiff must be upheld, the decree of the Subordinate Judge affirmed and thisappeal dismissed with costs.

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Katki vs. LakpatiPujari (26.05.1914 - CALHC)