Chapter XXVIII. Dattaka (adopted son)

Volume III pp. 662–699

Chapter XXVIII. Dattaka (adopted son)

DATTĀKA (adopted son)

No branch of Hindu Law in modern times has been so fruitful in litigation as adoptioṇ There are instances, where, fifty years after a point in the law of adoption was deemed to have been settled by a Full Bench decision, the Privy Council intervened and overruled the Full Bench decision in spite of its usual practice to follow the rule of stare decisis. The medieval digests are full of varying interpretations of the same smṛti texts and the law of adoption differs from province to province according to the authoritative medieval works and modern case law. Voluminous works like those of Shastri Golapchandra Sarkar and of Mr. Kapur have been written on the subject of adoption in all its detailṣ There is so much bewildering confusion and so much case law on the several aspects of adoption that it is only legislation that can resolve the tangled skein of the modern law of adoptioṇ In this section an attempt will be made to present the law of adoption as evolved by the smṛtis and medieval works and only some important cases bearing in various ways on the ancient law will be citeḍ

It has been shown above (pp. 641,657) how even in the times of the Ṛgveda the son of the body was eagerly sought for and how the adoption of another man’s son was declared to be not worthy of being thought of. Even so late an author as Śukra (II. 31) says that the adopted and other secondary sons should never be thought as one’s sons, since on seeing a rich man they desire to be adopted ¹. Yet Vedic Literature contains some references to adopted sonṣ In the Tai S. VII. 1 8 1 we come across the story of Atri, ^1252b who gave an only son in adoption to Aurva in these words: 'Atri gave his son in adoption to Aurva III] who desired to have a soṇ He (Atri), having become empty (as it were, by giving away his only son), thought himself to be destitute of strength, to be weak and worn out (lit. stale). He (Atri) saw this caturātra (a sacrifice of that name lasting for four days). He made preparations for it and performed that sacrifice. Then he had four valiant sons born to him, a good Hotṛ, a good Udgātṛ, a good Adhvaryu and a good sabhēya (skilful speaker in an assembly)'. The story of Śunaḥśēpa in the Ait. Br. (33) shows that Viśvāmitra, though he had already one hundred and one sons, adopted Śunaḥśēpa under the name Devarāta, with the consent of his fifty-one sons (with Madhu-cchandas² at their head), though the elder 50 sons disobeyed their father. It must be supposed that the later rule allowing only a sonless man to adopt did not apply to Viśvāmitra.

The sūtras and smṛtis contain hardly anything about the dattaka except his name (among the 12 kinds of sons) or the definition, as in Bauḍ Dh. S. II 2. 24, Manu IX 168, Yāj. II. 130, Viṣṇu Dh. S. 15 18-19, Nār. (dāyabhāga 46). The Vaṣ Dh. S. is an exceptioṇ It not only gives a definition (in 17 28-29), but is one of the earliest smṛti texts to dilate on the rules about adoption (in 15. 1-9). What it says may be set forth in one place. “Man produced from seed and blood owes his birth to his mother and father. (Hence) the mother and father have power to give, to sell or to abandon hiṃ But one should not give or accept an only son, for, he is required to continue the line of his ancestorṣ A woman should neither give nor receive a son (in adoption) except with the permission of her husbanḍ One about to take a son in adoption should, after having invited his kinsmen, having informed the ruler (of the intended adoption) and having performed in the middle part of his house a homa with the vyāhṛtis, take only him who is closely related and who is a kinsman not remote (in habitation and speech). If a doubt arises (as to the family of the person to be adopted) he (the person desiring to adopt) should treat one whose kinsmen are in a remote place as if he were a śūdra; for it is declared (in the Brāhmaṇa or Vedic works) ‘by means of one (son, aurasa or adopted) he (the adopter) saves many.' If, after a son is taken (in adoption), an aurasa is born (to the adopter) the adopted son shall be the recipient of a fourth Manu IX. 141 refers to the adoption of a son who is not of the same gotra as the adopter and IX. 142 sets out the results of adoptioṇ The other principal ancient texts quoted by the D. M. and V. Mayukha are those of Atri, Saunaka, ² Sakala and the Kalikapurana. The Mit. does not contain more than a few lines on the dattaka. It is only in such late works (belonging to the 17th century and later times) like the V. Mayukha, the Dattakamimamsa, the saṁskāra-kaustubha, the Dattakacandrika, that the dattaka receives an elaborate treatment. In modern times the D. M. and D C (which is branded as a forgery by some Bengal writers)⁵ have been regarded by III] the Privy Council as of the highest authority in matters of adoptioṇ In Collector of Madura v. Mootoo 12 Moo. I. A. 397 at p. 437 the P. C. observe : ‘Of the Dattakamīmāmsā of Nanda Pandita and the Dattaka. Candrikā of Devanna Bhatta, two treatises on the particular subject of adoption, Sir William Macnaghten says that they are respected all over India; but that when they differ the doctrine of the latter is adhered to in Bengal and by the southern Jurists, while the former is said to be the infallible guide in the provinces of Mithila and Benares’. But Jolly (T. L. L. p. 166) gives a far more correct estimate of the value of the D. M. when he says ‘It is simply a mis- fortune that so much authority should have been attributed in the courts all over India to such a treatise as Nanda Pandita’s Mīmāmsā which abounds more in fanciful distinctions than perhaps any other work on adoption and it is high time that the numerous other treatises on adoption should be thoroughly examined and given their due weight’. In Bhagwan v. Bhagwan 26 I. A 153 at p. 161 the P. C. observe ‘To call it (the Dattaka- mīmāmsā ) infallible is too strong an expression and the estimates of Sutherland and of West and Buhler seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have be- come embedded in the general law’. Yet even these works have been set at naught and departed from by Courts in India on many points as will appear in the sequel.

The principal matters to be discussed under adoption are: object of adoption, persons that may legally take in adoption, persons that may give in adoption, persons that may be taken in adoption, the requisites and ceremonies of adoption and the results of adoptioṇ

The objects of adoption---Atri (verse 52) quoted above in note 1231 declares that that man alone who has no son should always secure a substitute for a son with all possible effort for the sake of securing the offering of pindas (funeral and śrāddha cakes) and water. The D. C. quotes this verse and also an- other ascribed by it to Manu⁶ in which the object of adoption is said to be twofold, viz. securing spiritual benefit from the pindas and water (offered by him) and perpetuating the name and family of the adopter. In one of the latest cases on adop. tion that revolutionized the law the Privy Council ⁷ emphasize the peculiar religious significance that has attached to the son among all classes of Hindus, refer to the 9th chapter of Manu verses 106, 107, 137, 138 of which are instinct with this doctrine, hold that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of necessary rites and that in this doctrine the devolution of property, though recognized as the inherent right of the son, is altogether a secondary consideratioṇ

Persons who can give in adoption—The primary right to give in adoption is that of the father, who can do so without consulting the mother. ⁸ The mother cannot without the husband's permission give her son in adoption while the father is alive and capable of consenting. But the mother alone can (as said by Manu IX. 168, Yaj. II. 130) give her son in adoption if the father be dead or if he is incapable of giving consent or has entered the order of ascetics, provided he has not expressly or impliedly prohibited her to do so. If both parents are dead no one else, not even the paternal grand-father or the step-mother or a brother, can give a man in adoptioṇ If A has a son B and is then given in adoption by his mother into another family, it was held in Martand v. Narayan that A still retained his power as father to give away B in adoption (1 L. R. 1939 Boṃ 586 F. B.). This decision has been dissented from by the Nagpur High Court in Sharadachandra v. Shantaba (I. L. R. 1944 Nag. p. 544, F. B.). But the reasons given by the Nagpur High Court are not convincing and the judges seem to be influenced by the dictum of the P. C. that the adopted son is just like an aurasa son except in a few well defined caseṣ It cannot be supposed that the P. C. knew all the texts of the nibandhas dealing with adoptioṇ Though the Bombay High Court held in Pulalabai v. Mahadu 33 Boṃ 107 that a mother did not by her remarriage forfeit her right to give in adoption her son by the first husband, that decision was subsequently overruled in Fakırappa v. Savitrewa 23 Boṃ L. R. 482 (F. B.) which decided that after remarriage a widow has no power to give in adoption her son by the first husbanḍ The same High Court held in Shamsing v. Shantabai (25 Boṃ 551) that a Hindu father, who, after the birth of a son, became a convert to the Moslem faith, did not by reason of his conversion lose his power of giving his son, who remained a Hindu, in adoption though the physical act of giving in adoption, being accom- panied by religious ceremonies, may have to be delegated by him to a Hindu. This decision was based on the Caste Dis- abilities Removal Act of 1851 (for which see above p. 547, ṇ 1021 ). This decision is against the spirit of the ancient Hindu Law.

What persons may adopt a soṇ—Every male Hindu, who is of sound mind and has attained the age of discretion though he may be a minor according to the Indian Majority Act (III of 1875), can take a son in adoption provided he has no son, grandson or great-grandson, natural or adopted, living at the time of adoptioṇ The word 'aputrena' in the verse of Atri ( quoted above in ṇ 1231 ) is explained by the D. M. as meaning⁹ one who had no son at all or whose son is dead and as in- cluding the grandson and great-grandsoṇ It would appear from a Bombay decision that even if a Hindu has a son, grand- son or great-grandson disqualified from inheriting on the grounds mentioned above he cannot adopt (vide Bharmappa v. Ujjangauda 46 Boṃ 455). In the Dattasiddhāntamañjari of Balakrsna (folio 11b ) it is stated that if the aurasa son of a person is congenitally blind, dumb or deaf he can take a boy in adoptioṇ In Krishnan v. Raghavendra I. L. R. (1942) Boṃ 492 it has been held, relying upon 46 Boṃ 455, that a widow

idea is that the permission (anujñāna) of the husband is not required to be given just at the time of the adoption and that it may be given long before the actual adoptioṇ (3) In Madras a widow may also adopt without¹⁰ her husband's authority, provided she secures the consent of the father-in-law or (if the latter be dead) of all the co-parceners of the husband, if her husband died as a member of a joint family, and if the husband was separate at the time of his death, then the consent of the father-in-law or (if he were dead) of a substantial majority of her husband's nearest sapinḍaṣ In this view the word 'of the husband' (in Vasiṣṭha) is taken as only illustrative and not literally. (4) The Vyavahāramayūkba,¹¹ the Nirnaya- sindhu, the Saṁskārakaustubha, the Dharmasindhu, that are regarded as authoritative in Bombay and Western India, hold that the passage of Vasiṣṭha refers only to a wife whose husband is alive and that a widow may adopt without the husband's autho- rity. According to this school the husband's authority to adopt is always to be presumed, unless he has prohibited his widow expressly or by necessary implication from adopting. The D. O. appeals to the general maxim 'another's (or the opponent's) view if not dissented from may be taken as having been approved'. There is a large volume of case law about the construction of the authority to adopt, about the rights of co-widows in the matter of adoption, about the limits of a widow's power, which are deemed to be outside the purview of this work.

As regards the power of a widow to adopt in the Bombay school, when her husband was joint at the time of his death,.. the case law has fluctuated from time to time. Only a few cases may be referred to here. In Ramji v. Ghamau 6 Boṃ 498 (F. B.) a Full Bench of the Bombay High Court held that a widow, whose husband was a member of a joint family at the time of his death, could not adopt when she has not the authority of her husband or the consent of the husband's un- divided coparcenerṣ After this decision had stood for 50 years the Privy Council held in Bhimabai v. Gurunathgouda¹² L. R. 60 I. A. p. 25 that the Full Bench decision had already been overruled in Yadao v. Namdeo ( 48 I. A. 513 ) and that a Hindu widow can adopt without the consent of her husband's III ] co-parceners, when the husband was a member of a joint family at the time of his death. This decision was carried further by Amarendra's case (60 I. A. 242) by holding that when a widow, who had authority to adopt, adopted even after the estate had devolved on a male collateral heir such adopted son would take the estate and deprive the heir of it. Ae any widow was held to be able to adopt in Bombay without anybody's consent, hundred of adoptions have taken place, which came and are coming before the courtṣ Another Full Bench case held that when a Hindu coparcenary came to an end on the death of the last surviving coparcener and the family property became vested in his heir, a subsequent adoption by the widow of a predeceased coparcener was valid, but it did not revive the ooparcenary nor did it vest the property of the former co-parcenary in the adopted son (Balu v. Lahoo I. L. R. 1937 Boṃ 508). When a co-paroenary was broken up by partition among the members, it was held¹³ that the widow of a co-parcener who died long before the partition cannot make a valid adoption and reliance was placed on a passage of the Viramitrodaya (quoted below).¹⁴

But these decisions have been dissented from in Bajurao v. Ramkrishna I. L. R. (1941) Nagpur 707 and in K. R. Sankarlingam Pillai v. Veluchami Pillai I. L. R (1943) Maḍ 309 ( F. B. ), where it has been laid down that when the surviving coparceners of a joint Hindu family were in posseselon of the joint family properties which they obtained in a partition among themselves after the death of a coparcener and subsequent to the partition a valid adoption was made, to the deceased coparcener by his widow the adopted son was entitled to reopen the partitioṇ They rely by way of analogy on the provisions of Yaj that the posthumous son can reopen a partition already made and also on that of the disqualified heir when the disqualification is removed and on the dicta in some cases that an adoption dates back to the date of the death of the adoptive father. But no smṛti text and no digest has extended the exceptional rules about the posthumous son and the disqualified heir to a son adopted after partitioṇ Their reasoning as regards the Bombay cases is not satisfactory. It amounts to this that as between the separating co-parceners the coparcenary may be extinct but as to the subsequently adopted son it exists i. e. a co- parcenary is extinct and existing at the same time, which, to use no stronger expression, appears rather strange. Besides the general rule is that partition is made only once (Manu IX. 47 ). The cases of the posthumous son and of the disqualified heir are expressly provided by way of exceptionṣ The usual rule is that exceptions are to be strictly limited to the matters expressly stated and are not to be extended by analogy to cases not covered by the words of the exception and that other cases are governed by the general rule. It is a canon of interpreta- tion in Hindu Law that a special text forming an exception to a general text should be construed strictly and applied only to the cases clearly falling within it ( Ganpu v. Chandrabhagabai 32 Boṃ 275, 283, Hanmant v. Ganesh 43 Boṃ 612, 624). Further, a Hindu widow is not compelled to adopt at any particular time; she may adopt at any time during her life. In Raje Vyankatrao v. Jayavantrao 4 Boṃ H. C. R ( A. C. J. ) 191 it is noticed that the widow in that case adopted 71 years after her husband's death. If the reasoning of the learned Judges of Nagpur and Madras is correct then when three or four genera- tions have succeeded to the separating coparceners, an adopted son can reopen the partition after three quarters of a century. This result, to say the least, would be most unreasonable. The Nagpur High Court observes that every Hindu widow is a potential mother. This is a fiction which has been carried too far by that court and by the Privy Council. A woman in the order of nature can hardly ever have an aurasa son beyond the age of fifty or so, but when a fiction is employed a woman can bring into existence a son even when she is 80 or 90. The Privy Council have approved of the Nagpur and Madras decisions recently in Anant v. Shankar 46 Boṃ L. R. 1. They hold that a Hindu family cannot be brought to an end while it is possible in nature or law to add a male member to it or while there is still a potential mother if that mother in the way of nature or law brings in a new member. In Ramchandra v. Shankar 47 Boṃ L. R 121 (F. B.) the Privy Council decision in Anant v. Shankar has been followed and it is held that the decision in Balu v. Lahoo has been expressly overruled by the Privy Council. The consequences of these latest decisions will be most disastrous for Hinduṣ In Amarendra's case the P. C. state that there III] must be some limit to the power of a widow to adopt or in which it would be contrary to the spirit of the doctrine to admit its continuance or inequitable in the face of other rights to allow it to take effect (L. R. 60 I. A. 242 at p. 249). In Madana Mohana v. Purshothama L. R. 45 I. A. 156 the P. C. approving of Ramkrishna v. Shamrao 26 Boṃ 526 (F. B.) held that, when a man dies leaving a widow and a son and that son dies leaving his own son or a widow to continue the line by adoption, the power of the former widow comes to an end and cannot be revived; that is, they were prepared to hold that the grandmother succeed- ing to her grandson who died unmarried could not make a valid adoption and allowed the grandfather and his ancestors to remain without the religious benefits that a son adopted by the grandmother would have conferred (in spite of the 9th chapter of Manu on which they rely in Amarendra's case). According to the recent rulings any widow whose husband died a member of a joint Hindu family may adopt at any time even when the other members become separate and may remain separate for 50 years or more and yet a large slice of the estate may be taken away after several generations have succeeded, laboured and acquired a vast estate. Further, it is not clear how far the P. C. will go in their solicitude for the adopted soṇ Suppose three brothers separate and one of them sells the pro- perty that came to his share. If the partition is to be opened for the benefit of a son subsequently adopted by a predeceased member's widow, will the purchaser be affected or not (supposing the sale is within 12 years of the adoption)? Supposing that the last surviving member of a family dies leaving a married daughter and a predeceased son's widow and the daughter inhe- rite an absolute estate (as she does in Bombay) and remains in possession for 30 years, is it meant that a son thereafter adopted by the widowed daughter-in-law can divest an estate vested for thirty years in a married daughter who is not a mem- ber of the family at all after her marriage? The recent P. C. decision in Anant v. Shankar appears to indicate that whatever the length of time the adopted son will oust a collateral to whom the estate may have gone by inheritance. Intending purchasers have become afraid that there is no knowing how far the P. C. may go. These decisions will lead on to hurried sales of joint family property at whatever price may be fetched immediately a coparcener dies leaving a widow. The result of the several decisions of the P. C has been that properties of Hindu families in which widows of predeceased coparceners exist are not easily saleable and do not yield their proper market value. The inroads on the ancient joint family system of the mitākṣarā have been so many that only the shell remains; the burdens are there, but the soul is gone, what with the right of each coparcener to alienate his share for consideration, the Gains of learning Act, Act 18 of 1937, the decisions of the P. C. about adoption, sec 39 of the Transfer of Property Act. It would be better if the Legislature declared that the joint family system of the mitākṣarā type has been abrogated, if all the innovations introduced by legislation and judicial decisions are to be kept intact.

A widow who has attained years of discretion may adopt although she is a minor according to the Indian Majority Act (of 1875 ) It has been held in Bengal that an unchaste¹⁵ widow cannot adopt, but in the Bombay Presidency it has been held that a śūdra widow, though unchaste, may make a valid adoptioṇ¹⁶ If a man dies leaving a widow D and two sons A and B, who form a joint Hindu family, and subsequently A dies leaving a widow C and his brother B, and if B dies un- married and the mother D succeeds as heir to her unmarried son B, she has still the power to adopt a soṇ The duty of continuing the line was cast upon both A and B and not on A alone and therefore when A dies that duty is cast on the survi- ving coparcener B Therefore the proposition laid down in Ramkṛṣṇa v Šamrao cannot apply and the mother of B can adopt (vide Anant v. Dnyaneshwar 46 Boṃ L. R. 353 )

Who may be adopteḍ The person to be adopted must be a male according to the Vyavahāramayūkha¹⁷ which relies on the analogy of upanayana ( that only a male undergoes, as stated in the ancient text 'aṣṭavarṣam brāhmaṇam-upanayīta). This has been followed by the Indian Courtṣ¹⁸ But the D. M. (pp 112-116), Saṃ K. (p. 188) and Dharmasindhu¹⁹ relying upon such instances as that of Śānta, the daughter of king Dasaratha (who was adopted by king Lomapāda) and of Pṛthā, who was the daughter of Śūra and was adopted by Kuntibhoja, say that even a girl may be adopteḍ Pannalal in ‘Kumaun local customs’ states that a girl may be adopted as a daughter in Kumaun by custoṃ The person to be adopted must be of the same caste as the adopting father. Yaj. II. 133, providing that the twelve kinds of sons that offer the piṇḍa and take the wealth one after another in order, applies only to sons of the same caste. Śaunaka also requires sameness of caste. Manu IX 168 employs the word ‘sadṛśam’, which was interpreted by Medhā- tithi as meaning ‘similar to the adopter in qualities and not in caste’. Medhātithi²⁰ expressly states that a brāhmaṇa may adopt a kṣatriya boy. But Kullūka and the other com- mentators of Manu, the V. Mayūkha and other works hold that the boy must be of the same caste. The Sam K. p 150 and Dharmasindhu go a step further by saying that even a brāhmaṇa should adopt another of the same country. The Vāyu- purāṇa (99 137-139) narrates that Bharata, son of Dusyanta, adopted Bharadvāja, son of Bṛhaspati and a brāhmaṇa, who then became a kṣatriya.²¹ The courts accept the view of Kullūka and the rest. It is likely that courts may allow a boy from a subcaste of each of the four principal varṇas to be adopted by a man belonging to another subcaste of the same varṇa.²² Śaunaka and Vṛddha-Yāj q by D. C. provide that the dattaka may be of a different caste, but that such a son will not take the wealth ²³. In spite of the words of Vāṣ 15. 3 and of Śaunaka (that one having an only son should not give him) the courts have held that even an only son may be given or taken in adoption and that the words of Vasiṣṭha are merely recommendatory. Vide _Śrī Balusu Gurulingaswami v. Śrī Balusu Ramalakshmamma_ 26 I. A. p. 113 and _Vyas Chimantāl v. Vyas Ramchandra_ 24 Boṃ 367 (F. B.) In connection with the force of the words of Vāṣ 15. 3-4 stating why an only son should not be given or taken, Jaimini's rule contained in what is called the 'hetuvan-nigadādhikaraņa' ²⁴ (Jai. I. 2. 26-30) came in for very exhaustive discussion in _Beni Prasad v Hardai Bibi_ 14 All. 67 (F. B.) and _Radha Mohun v Hardas Bibi_ 26 I. A. pp. 113, 146. There are several Vedic passages like this, 'he offers the grains into the fire with a winnowing basket, for food is prepared with the help of it' (Tai Br. I. 6. 5). The question is whether such sentences put forward a reason for what is enjoined in the preceding portion or whether they are intended merely as _arthavādas_ (i. e. for the praise of what is stated in the preceding part of the passage). Jaimini concludes that they are for the purpose of praise ²⁵ alone. The eldest son also should not be taken in adoption, since, as the Mit. (on Yaj. II 130) puts it, it is the eldest son alone who is the foremost in serving the purposes of a son as regards his genetive father acc. to Manu IX. 106 which says 'a man becomes one having a son (a father) by the mere fact of the birth of his (first) son and becomes free from the debt owed to the pitrs'. But in modern times this rule is taken to be only recommendatory and the adoption of the eldest son is held valid as also that of an only son²⁷. The V. Mayūkba (p. 108) states: acc. to the Mit. the prohibition to give the eldest son affects only the giver but not the adopter and he criticizes the Mit that Manu IX. 106 does not forbid the giving of the eldest son, but only provides that by the birth of the first son a man becomes free from debt (to pitrs). So the V. Mayūkha goes a step fur- ther and holds that there is no prohibition at all either to give or take in adoption the eldest son, while the Mit., though it does not hold the adoption bad, seems to hold that the giver incurred blame. The Saṃ K. p. 150 also does not allow the adoption of the eldest soṇ Two or more persons cannot adopt the same boy and if they do so the adoption by each is invalid²⁸. The Dvyāmusyāyana adoption, to be described later on, is an exceptioṇ

The texts contain rules about preference in selecting a boy for adoption, when several are eligible. The Mit. ²⁹ on Yāj. II. 132 declares that the verse of Manu that 'when out of several brothers who are sons of the same father one has a son all of them become, through that son per- sons having a son' does not provide that he becomes really the son of all but it indicates that when a brother's son is available for adoption another boy should not be adopteḍ A similar explanation had been given by an ancient commentator Deva- svāmiṇ The D. M., D. C. (pp. 5-6) and Saṃ K. p. 150 quote passages of Śaunaka ³⁰ and Śakala that a man should prefer a sapinda or a sagotra to one who is not a sapinda or of the same gotra. The D. M., D. C., the Saṃ K. p. 150, the Dharma- sindhu recommend the following order : the full brother's son, then a sagotra sapinda, then a sapinda though not of the same gotra (such as a boy from one's maternal uncle's line or a paternal aunt's descendant ), then one not a sapinda though of the same gotra, then one who is neither a sapinda nor a sagotra. This order is purely recommendatory and an adoption in breach of it is quite valiḍ It has been recently held that an adoption is invalid if the boy adopted be congenitally and incurably deaf and dumb though not an idiot. Vide *Surendra v Bholanath I L, R. (1944) 1 Cal. 139

As to the age of the boy to be adopted there is great diver- gence among the medieval writers which is also reflected in the case law. In this connection certain verses of the *Kālikāpurāņa assume ³¹ great importance The V. Mayūkha and the D. C hold that the passage is of doubtful authenticity (as the verses are not found in several msṣ), while the D. M. and the Nirnaya- sindhu hold them to be genuine and the Saṁ K. pp. (169-172) after referring to these views states that those verses are opposed to what is stated in the Ait. Br. about Śunaḥśepa who was adopted by Viśvāmitra as a son even after upanayana. The verses are. ‘O King! that son, whose saṁskāras up to (including) the cūḍā (tonsure) ceremony are performed with the gotra of his (natural) father, does not (i. e. cannot) attain the status of the adopted son of another When the ceremonies of cūḍā and upanayana are performed under his own gotra (by the adoptive father) the dattaka and the other kinds become (recognised as) sons (in the adoptive family); otherwise they are called dāsa (slave). After the fifth year the adopted’ son and the rest can- not be (recognised as) sonṣ Having taken one who is five years old, one (the adopter) should first perform the putreṣṭi’. These verses state four propositions: (1) If all saṁskāras from jātakarama to cūḍā (i e including it ) have been performed in the family of birth that boy cannot be adopted in another family; (2) if a boy’s cūḍā and other later ceremonies are per- formed in the family of adoption he is fully an adopted son; (3) a boy over five years of age cannot be adopted at all, (4) a boy whose cūḍā has been performed in the family of birth may be adopted up to five years, provided the rite called putreṣṭi³² is first performed in the adoptive family before any other cere- mony is performed on the adopted boy. The D. M. says that the best time for adoption is up to three years, then from three years to five is the next best (gauṇa) and that after five no boy can be adopteḍ The D C. (p. 36) holds that a boy of the three higher classes can be adopted up to upanayana and that a śūdra boy can be adopted till his marriage The Nirnaya- sindhu seems to be of the same opinion The V. Mayūkha³³ III ] and Saṃ K. both hold that even a boy not of the same gotra may be taken in adoption after upanayana or after marriage and even when the person to be adopted has himself had a soṇ In Bengal, Benares³⁴ and Bihar the courts hold that the boy must be adopted before upanayana. The same rule holds good in Madras³⁵ ; but there it is further held that if the boy to be adopted is of the same gotra as the adopter, the adoption may be made after upanayana but before marriage. In Bombay a person may be adopted at any age, even after marriage and even after he has had children and he may be even older than the adopter.³⁶ In the whole of India, a śūdra may be adopted only before his marriage, but in the Bombay Presidency the adoption of a married man and of one having even a child is allowed also among śūdras³⁷. Saunaka required that the boy to be adopted must be putracchāyāvaha³⁸ (one who bears resemblance to or is a reflec- tion of the aurasa son). This has led to differing explanations by the commentators and contradictory decisions in the several Indian High Courtṣ The D. M. and D. C (p 21) both explain that the resemblance consists in the possibility of being pro- created by the adopter himself by niyoga and the like. The meaning of the D. M. is: A brother’s son or a sapinda’s son or a sagotra’s son can be adopted because the adopter could have procreated a son by the practice of niyoga on the wife of a brother or a sapinda or a sagotra (according to the rules of niyoga) ; but he could not have done so as regards his mother, or grandmother, daughter or sister or his mother's sister. There- fore a man cannot adopt his own brother, paternal or maternal uncle, a daughter’s son or a sister’s son and the like One strange thing is that, though niyoga had been forbidden for many centuries before the D. M., the author of it brings in the rules of the long obsolete practice of niyoga³⁹ to find out who could or could not be adopteḍ But stranger things were to happen Sutherland who translated both the D.M. and the D.C explained in his notes the word ‘niyogādinā’ as ‘by such an appointment or marriage and the like’. Vide Stoke’s Hindu Law Texts p. 590 (Dattakamimāmsa, seo. V. plactum 16.note ). There was no warrant for introducing the word ‘marriage’ after ‘niyoga’ The rules of niyoga are different from those of marriage The judges most of whom were generally ignorant of Sanskrit and had yet to decide cases among Hindus according to Hindu Law as understood by them (vide 26 I A. 113 at page 128 about the ignorance of Sanskrit among judges) seized upon this explana- tion and evolved the curious rule that no one could be adopted whose mother the adopter could not have married in her maiden state (i e the relationship has reference to a time prior to marriage). This is still the law in all Presidencies⁴⁰ except Bombay. Although the D. M. stated that the boy to be adopted must be capable of being procreated by niyoga, at another place it remarks, after quoting verses of Śaunaka⁴¹ and Śakala, that a boy of another gotra may be adopted except a daughter’s son, a sister’s son and a mother’s sister’s soṇ The Bombay High Court holds that any one may be adopted except these three (vide Ramchandra v Gopal 32 Bom 619, Walbai v. Heerbai 34 Boṃ 491 holding that a man cannot adopt his mother’s sister’s son, Ramkrishna v Chimnaji 15 Boṃ L. R. 824 holding the adoption of father’s sister’s son valid). Very strange results have followed from this viz. the Bombay High Court has upheld the validity of the adoption as a son by a man of his own half-brother (vide Gajanan v Kashinath 39 Boṃ 410), of his own maternal uncle’s son, and the adoption by a widow of her deceased husband’s son-in-law (vide Sūlabai v. Parvatibai 47 Bom 35 ). It should be noted that the Dvaitanirnaya or Dharmadvaitanirnaya⁴² (of Śankarabhaṭṭa, father of Nīlakaṇṭha) and the V. Mayūkba both hold after a very abstruse reasoning based on several Mīmāṁsā rules, that men of the three higher classes may adopt a daughter's son, a sister's son or a mother's sister's son and that a śūdra must adopt one of these if available in preference to any one else. The Bombay High Court follows the inter-pretation of Śaunaka's verse given by Nandapaṇḍita in preference to Nīlakaṇṭha's, but in its turn disregards the authority of Nandapaṇḍita who forbade the adoption of a brother or uncle. It would have been far better if it had generally brushed aside everywhere the dicta of Nanda-paṇḍita and preferred the interpretation of the Mayūkha. Popular sentiment is in favour of the daughter's son or sister's son being adopted, as they are the nearest and often the dearest relations, and yet the High Court shuts the door against them, while it opens it ajar for the adoption of a brother or maternal uncle or his son or one's own daughter's husband, which appears absurd to people. Besides the High Courts have recognised the adoption even of a daughter's son ⁴³ on the ground of custom by Deśastha smārta brāhmaṇas in the Dharwar District (vide Sundrabai v Hanmant 56 Boṃ 298 ) by Telugu brāhmaṇas ( Viswasundara v. Somasundara 43 Maḍ 876 ). Śūdras can adopt a daughter's or sister's or mother's sister's son all over India. The D. M. went so far as to say that a widow could not adopt her brother's soṇ ⁴⁴ The D. M. ignored the fact that the widow adopts to her husband ( and not to herself ) who bore no relation to his wife's brother's wife and who could have himself adopted that soṇ The Bombay High Court and the Privy Council have discarded this absurd proposition of the D. M Pannalal in 'Kumaun Local customs' notes that in that part of India a daughter's or a sister's son may be adopted (p. 14 para 56). It has been recently held that the adoption of the illegitimate son of a woman even among śūdras is invaliḍ Vide Apya v. Ramakka I L. R. (1941) Boṃ 350. This was relied upon for holding that a woman cannot give in adoption an illegitimate son among Lingayats in Tirķangauda v. Shirappa A. I. R (1944) Boṃ 40.

It is now necessary to say a few words about the dvyāmuṣyāyaṇa. A dattaka is of two kinds⁴⁵, kevala (simple or ordinary) and dvyāmuṣyāyaṇa (the son of two fathers). When a man gives his only son in adoption to another under an agreement that he is to be considered as the son of both the natural father (janaka or janaka-puts) and of the adoptive father (pālaka), the son so given is called dvyāmuṣyāyaṇa. The Bombay High Court has held that in order to constitute a dvyāmuṣyāyaṇa an express agreement as stated above must be proved even when one brother adopts the only son of another⁴⁶. A dvyāmuṣyāyaṇa inherits both in the natural and adoptive familieṣ The word dvyāmuṣyāyaṇa was employed in some of the smṛtis as applicable to all such sons as the dattaka, krita⁴⁷. The V. Mayūkha quotes a prose passage from Kātyāyana (which is attributed to Paithinasi in D. C) and the V. Mayūkha, D. M. and D. C. all quote a verse (which is ascribed to Pravarādhyāya by the first and to Pārijāta by the D. M.) that supports thiṣ The D. M and D. C. both quote two sūtras of Satyāsādha and Śabara’s gloss (bhāṣya) thereon in which the kṣetraja is called nitya dvyāmuṣyāyaṇa and the dattaka and others are called anitya dvyāmuṣyāyaṇa Yaj II. 127 and Bauḍ Dh. S. II. 2. 21 provide that a kṣetraja is the son of both the begetter and of the husband of the wife on whom the son is procreateḍ Therefore such a son is called nitya dvyāmuṣyāyaṇa (because he is always the son of two fathers). When the kṣetraja became obsolete and forbidden, the only dvyāmuṣyāyaṇa was an only son taken in adoption with a stipulation as described above. About the dattaka Manu IX. 142 states the general rule that the dattaka loses the gotra of his genetive father and assumes that of the adopter. But a dattaka belonged to two gotras according to some, if his saṁskāras up to cūḍa were performed in his natural family and the saṁskāra of upanayana and those that follow were performed in the adoptive family. Therefore it was not a general proposition that a dattaka always belonged to two gotraṣ If all the saṁskāras from jātakar ma were performed by the adopter, then the dattaka would take the gotra of the adopter alone Hence the sons called dattaka and ‘the bought’ were styled anitya dvyāmuṣyāyaṇas (who were not in all cases dvyāmuṣyāyaṇas ) The D. M. states this⁴⁸ twofold division of dvyāmuṣyāyaṇas and employs the words nityavat or nitya and anityavat or anitya III. Dvyāmusyāyaṇa son

to denote the two varieties and restricts the former only to a son adopted with a stipulation as stated above. The kṣetraja became quite obsolete many centuries ago and the courts have held that the anitya dvyāmusyāyaṇa is also now obsolete ⁴⁹. It is now held that every adoption is presumed to be in the simple ( kevala ) form, unless a stipulation that the boy will be the son of both is proved ( when it will be a dvyāmusyāyaṇa adoption ).

When a man is adopted in the dvyāmusyāyaṇa form, his son born after such adoption has been held to inherit as grand-son to the adoptive father, if the dvyāmusyāyaṇa son died before the adoptive father. ⁴⁹

Ceremonies of Adoptioṇ—The most essential ingredient in adoption is the giving of the boy by the natural father and the taking of the boy by the adopter with the intention to transfer the boy to the family of the adopter. Another requisite ( in some cases ) is the homa called dattahoma ⁵⁰ which as described by Śaunaka and Baudh. is given ⁵¹ in the Appendix. It is not necessary that the dattahoma must be performed immediately after the giving and taking, but it may be performed later and its performance may be delegated to others when the giver or taker is a widow or a śūdra or is ill &c. Although in Vedic times women composed hymns and although Hārīta and Yama stated that women had the upanayana performed on them and could study the Veda ( H. Dh. vol. II pp. 293-295 ), in later times it was held that women could not study the Veda, could not repeat Vedic mantras and therefore could not perform any homa ( including dattahoma ). Therefore some writers said that a widow could not adopt at all, while others like the V. Mayū-kha said that women are to be assimilated to śūdras and so just as a śūdra can get the dattahoma performed through a brāhmaṇa, so a widow, though she cannot herself engage in homa, may employ a brāhmaṇa to perform the dattahoma. Vide H Dh. vol II. pp 365-368 (for deterioration in the position of women), and note 1262 above and V. Mayukha quoted below.⁵² It has been held that the dattahoma is not 1301 necessary among twice-born classes if the boy to be adopted belongs to the same gotra as that of the adoptive father. Jolly (in T. L. p. 160) states that the Dattadarpaṇa refers to a text of Yama from the Sarasvatīvilāsa to the effect that homa is not absolutely essential in all caseṣ From Colebrooke's Digest V. 4 CCLXXIII it appears that Jagannātha held the same view. The Dharmasindhu remarks that in certain countries an adop- tion of a sagotra sapinda boy can be validly effected with the mere assent of the giver and adopter without Vedic ceremonieṣ There is a good deal of conflict in the case law on this point, which is passed over. Among śūdras no homa is necessary. The ceremony of adoption as described by Bauḍ gr sesasūtra II. 6 4–9 (which is probably the oldest on record and which was the one to be followed by the Taittirīyas or followers of the Black Yajurveda, according to D. M., Sam K. p. 177 and the Dharma- sindhu p. 161 ) is as follows: When about to take (in adoption) the adopter makes ready (or collects) the following viz. two pieces of cloth, two ear-rings, a finger ring, an ācārya (officiat- ing priest) who is well versed in the Veda, a bundle of kuśa grass, fuel sticks of palāśa (Butea Frondosa). Then in the midst of invited relatives, after informing the ruler, he serves food to brāhmaṇas in the assembly hall or in the middle of the house. He (the adopter) makes (the brāhmaṇas) pronounce the benedictions 'May the day be auspicious! May you fare well! May there be prosperity!' and performs the acts (usual in all homas) from drawing lines on the altar up to carrying forward the Pranītā water. -Vide H of Dh. vol II pp 209-212 for the procedure common to all homaṣ Then he goes into the III presence of the giver and begs of him ‘give me your son’. The other one (the giver) says ‘I give’. He (adopter) then takes hold of the boy with the words ‘I accept thee for the continuity (of my family)’. Then he decks (the boy) with the pieces of cloth, the ear-rings, the finger ring and performs the acts from laying fuel sticks round the altar up to the offering of oblations into fire; he offers boiled rice into fire with the mantra ‘yastvā hṛdā’ (Rg. V. 4. 10 or Tai. S. I. 4. 46. 1) as a puronuvākyā⁵⁴ (prayer of invitation) and with the mantra ‘yasmai tvam sukrte’ (Rg. V 4. 11, Tai. S. I. 4. 46. 1) as a yājyā (prayer of worship or offering). Then having offered oblations of clarified butter with the vyāhṛtis⁵⁵ he performs the acts from the offering to Agni Svistakṛt down to the giving of the cow and presentṣ He (the adopter) gives as dakṣiṇā (fee) to the priest these very pieces of cloth and rings (with which the boy was decked).

The procedure laid down by Saunaka, who appears to be a good deal common to both) and is meant for the students of the Ṛgveda (acc to Saṃ K. p. 175). A few salient points may be noteḍ The adopter should fast the previous day, he should offer madhuparka to the officiating priest, should perform all the details from the placing of fuel sticks on the fire up to the purification of clarified butter with the blades of kuśa grasṣ The giver recites (when begged) the five verses beginning with ‘ye yajñena’ (Ṛg X 62 1–5) and the adopter holds the boy with both hands while repeating the mantra ‘devasya tvā’ (Āsv gr I. 20. 4) mutters the ṛk ‘angād-angād’ (quoted above on p 641 ṇ 1202) and smells the boy on his head The adopter offers boiled rice with Ṛg V 4 10, X. 85. 38, X. 85. 41–46. A much more elaborate procedure is set out in the V. Mayūkha (pp. 120–122 text) and the Dharmasindhu (III pūrvārdha pp. 160–161).

The results of adoption—Adoption has the effect of trans-ferring the adopted person from his natural family into the adoptive family. Adoption confers upon the adopted person the same rights and privileges in the family of adoption as the son of the body (aurasa) except in a few well defined caseṣ The basic text on this point is that of Manu⁵⁶ IX. 142 which may be literally rendered as follows: 'The son given should not take the gotra (the family name) and the wealth of his natural father; the pinda (the cake of boiled rice offered to deceased ancestors in śrāddhas) follows the gotra and the wealth (i. e. is invariably concomitant with them); of him who gives (his son in adoption) the svadhā (obsequial rites) ceases (so far as that son is concerned)'. The preceding verse (Manu IX. 141) states that the adopted son takes the wealth of his adoptive father and all that this verse says is that, after adoption, the son given in adoption does not take the name of his natural father and has no right in the wealth that then is his natural father's and that he does not perform the obsequial and śrāddha rites for his natural father. But from this verse a learned Hindu Judge derived the sweeping proposition that 'the theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and maternal line, and his complete substitution into the adopter's family as if he were born in it'. There is no warrant for the idea of complete severance emphasized here. This dictum was followed in many cases and was accepted by the Privy Council⁵⁷. Another great Judge went so far as to say that ‘an absolute adoption appears to operate as birth of the boy in the family of adoption and as civil death in the family of birth, having regard to the legal consequences that are incidents of such adoption’⁵⁸. But then the P. C felt that matters were being carried too far and administered the warning⁵⁹ that “As has been more than once observed the expressions ‘civilly dead or as if he had never been born in the family’ are not for all purposes correct or logically applicable but they are complimentary to the term ‘new birth’.” We have to see what construction was put upon the verse of Manu by authoritative digestṣ The V. Mayūkba explains Manu IX. 142 and arrives at the conclusion that the four words gotra, riktha, pinda and svadhā are not to be taken literally but they are only used to indicate all those consequences only in relation to the natural father and the like that are brought about by their connection with the pinda and the verse of Manu conveys the cessation of all those consequences only. It further adds that the son on being given away in adoption ceases to have similar relationship to his brother, paternal uncle (in the family of birth). It should be noted that the V. Mayūkba does not say that the son given away is dead to the family of birth or ceases to have any connection whatever with the members of the family of birth, but restricts the cessation of relation to the offering of pinda and the taking of the estate after he is adopteḍ The D. M. quotes⁶⁰ the Sṃ C. (II. 289 ) and holds that by the gift the adopted son ceases to have the same gotra as the giver. The D. C. (pp 23-24) states⁶¹ the same proposi- tion, without naming the Sṃ C. The learned Judges who had to decide cases of adoption, even if they knew Sanskrit, do not generally appear to have consulted authoritative works other than the few that had been translated and were quite unaware as to whether even the cessation of the pinda and gotra and of the right to wealth when a son was given away was so universally accepted by the leading Dharmaśāstra works as they thought. The Sarasvativilāsa (p. 394) quotes a text of Viṣṇu⁶² that even the adopted son should perform the obsequial rites of the natural father and explains that Manu IX. 142 applies when the natural father has no issue at the time of his death. Rudraskanda on Khādira gr. III. 5. 16 says the same. Kamalākara, the author of the Nirṇayasindhu⁶³ and a first cousin and contemporary of Nīlakaṇṭha expressly states that Manu IX. 142 only applies when the natural father has a son or sons (other than the one given away) and quotes Kātyāyana and Laugākṣi cited in the Pravaramañjarī (p. 146) in support. The Dharmasindhu⁶⁴ also says that when a boy of another gotra is adopted after his upanayana is performed in the family of birth or when only the upanayana is performed by the adoptive father, the adopted boy should repeat both gotras at the time of bowing at the feet of elders or in śrāddha and .other rites; but when all the cere- monies including the cūḍā are performed by the adoptive father then the adopted boy has only one gotra (viz. that of the adopter).

The plain meaning of the verse of Manu (IX 142) is that when a man gives away his son in adoption, then that son is transferred into another family, does not perform the śrāddha and similar rites for the giver and cannot claim to take the wealth of his natural father as a son on the father's death or demand a partition from his father. The other son or sons' of the giver are to perform the śrāddhas for the father and to succeed to the family wealth. But this verse has been twisted by some High Court decisions to yield another rule. Suppose A, a Hindu, has an only son B. On A's death B takes the whole ancestral property as the only surviving co-parcener and then B is given in adoption by his mother to X. Suppose B has a daughter C born to him before his adoption to X. Does B forfeit the estate taken by him as the last surviving male with the result that on B's adoption to X his daughter C takes the estate (which had already vested absolutely in B) as if he was dead in the family of A. The Bombay High Court has held in two decisions that on B's⁶⁵ adoption to X in the above illustration he loses or forfeits the property he took as the last surviving co-parcener in the family of A and his daughter C would take the estate of B as if he were then dead (though he is actually living). The result of these decisions is that the verse of Manu is construed as laying down that though a man may have been absolutely entitled to certain property as a member of one family, on his adoption into another family he loses that estate which then passes on to his heir as if he had died on the day of adoptioṇ This construction of the verse of Manu has not been accepted by the Madras and Calcutta High Courts,⁶⁶ which hold that an adoption does not divest any property which has vested in a man previous to his adoption into another family. It may be noted that the Bombay High Court itself gave a deci- sion⁶⁷ which is inconsistent in principle with the two decisions cited above, when it held that where a father and his four sons partitioned ancestral family property and one of the sons was subsequently given in adoption into another family, the son so adopted was not divested by the subsequent adoption of the property already taken by the son on partitioṇ In a still later case the Bombay High Court approves of its first decision in 40 Bom 429 and observes:⁶⁸ 'the verse of Manu' refers not only to the riktha of the natural father but also to the gotra of the natural father. It is quite clear that the gotra of the natural father is vested in the son by his birth. The gotra so vested in the son ceases after the son is given in adoptioṇ It is difficult to understand why the riktha which is spoken of in the same manner as gotra in the verse should not cease by the entire cessa- tion of connection with the natural family. The gotra and riktha are inextricably joined together in a dvandva compound and it would follow logically as well as grammatically that the adopted son must lose both together and cannot lose the former and keep the latter.' In this passage the premiss that there is entire cessation of connection with the natural family is entirely wrong as has already been shown and will be shown a little later oṇ The adopted's connection with the gotra of the natural family does not cease for all purposes at all. Therefore the reasoning of the passage quoted above is entirely misconceived and is further opposed to two well known rules of the Mīmāṁsā evolved for the construction of textṣ On the interpretation given to Manu IX. 142 by the Bombay deci- sions that verse lays down two rules (vidhus), viz. (1) a person adopted into another family will not take the wealth of his natural father or any one in that family after adoption; (2) that a person adopted into another family loses or forfeits on adoption wealth that he may have already taken absolutely in the natural family as a member of that family before adoption. These are two entirely different propositions and the rule of mīmāṁsā is that one and the same sentence⁶⁹ should not be construed as laying down two rules (vidhis) applicable to diffe- rent sets of circumstanceṣ To so construe a text is to be guilty of the fault of vākyabheda (splitting up of a sentence so as to yield two distinct rules). The V. Mayūkha construed Manu IX. 142 so as to indicate only one sense and avoid the fault of vākyabheda on the analogy of two examples discussed in the Pūrvamīmāmsā⁷⁰ works, but if the reasoning of the Bombay High Court were followed the same fault to avoid which Nīlakaṇṭha strives hard would be committeḍ There is another Mīmāmsā rule⁷¹ which will be violated by the Bombay High Court's interpretation of Manu IX. 142 viz. when an already existing thing or entity and something to be accomplished or brought about in future are spoken of together in a sentence the thing already existing or accomplished is mentioned simply for the sake of the thing to be accomplisheḍ The accomplished fact is adoption itself. Manu who mentions adoption or the adopted son which is an accomplished entity also mentions along with it the taking of property (rikthaharana); hence that taking must have reference to the future bringing about and not the undoing of rikthaharana which had already taken place long before.

That the gotra of the natural family persists in some matters even after a person is adopted is made clear by the digestṣ The Sām⁷² K. (p. 182) says that every dattaka must, when entering on marriage, avoid the gotra of his natural as also of his adoptive father. The Dharmasindhu (III. p. 161) says the same and states that the prohibition against marriage with a girl of the gotras of the natural and adoptive fathers is absolute and not restricted to seven or five degrees Thus is there is no total or absolute cessation of gotra relation with the natural family for all purposes there is no reason why in the case of wealth already taken before adoption there should be a cessation or forfeiture or why the cessation of relation as sapinda relationship there is some conflict among the digests The D. M.¹²³⁴ states that the dvyāmuṣyāyaṇa has to observe the prohibitions against marrying a sapinda girl up to three degrees in the families of the natural father and of the adoptive father, while the simple dattaka has to observe sapinda relationship based upon the presentation of rice balls in the adoptive father's family for three generations (since the adopted son can generally have no particles of the body in common with the adoptive father) and in the natural family sapinda relationship based upon particles of the same body for seven generationṣ The Nirṇayasindhu (III pp. 290–291) sets out the various conflicting views and gives it as its own opinion that the sapinda relationship must be looked to in marriage up to seven generations in the natural as well as in the adoptive family (in the latter it being based on the offering of balls of rice) According to the V. Mayūkha (p 119) the simple adopted son has sapinda relationship in the adoptive father's family for seven generations and in the adoptive mother's family for five generations and it seems to hold that there is no sapinda relationship in the natural family (owing to Manu IX. 142) The D. C. (pp. 61 66) appears to hold that the dvyāmuṣyāyaṇa has to observe sapinda relationship (as stated in the D. M.), while as to the simple dattaka there is sapinda relationship only in the adoptive family for seven generations (as indicated by Manu IX. 142) The Dharmasindhu (III. p. 161) states that sapinda relationship depends in its degrees on the question whether the adoption is made after upanayana in the natural family or before upanayana or whether all Saṁskāras from jūlaka ma are performed in the adoptive family. The Bombay High Court⁷⁴ has held that the adopted son cannot marry within prohibited degrees in the natural family, that to that extent an adopted son cannot be considered as not to have been born in his natural family and that the sapinda relationship is recognized in both the families for the purpose of prohibition of marriage.

The Nir. S., the Dharmasindhu⁷⁵ and the D. C pp. 48-49 declare that the adopted son can perform the śrāddha of his natural father if the latter has at his death no son or other qualified person to perform it. The Nir S. and the Sam ⁷⁶ K. (pp. 185-186) both say that the adopted son has to observe three days' mourning on the death of the natural father and vice versa; but the D. M. and D. C (p. 68) differ and state that the simple adopted son has to observe no mourning for his natural father or other relatives in the natural family. If a married man having a son is given in adoption (which is possible in the Bombay Presidency) the son (born before the adop- tion) remains in the natural family and does not acquire the gotra and rights to property of the family into which his father is adopteḍ Yet the father who has gone into another family by adoption has been held to retain his right to give in adoption his son who was born before his own adoption and who remains in the natural family⁷⁷.

From the above discussion it follows that the person adopted retains the tie of blood with his natural family (so that he cannot marry a girl within the prohibited degrees from that family), the saṁskāras already performed in the natural family are not repeated on him after adoption, he still retains the gotra so far that he cannot marry a girl having the same gotra as his natural father and further he has according to most writers to observe mourning for his natural father. Therefore it is clear that the severance from the natural family brought about by adoption is only partial and restricted to piṇḍa and riktha. and connected matters and not complete as stated or assumed in some decided caseṣ The adopted son is entitled to inherit in the adoptive family as fully as if he were a natural born son i. e. he may inherit not only to his adoptive father, but also to that father’s brother or cousin if the latter have no son or no other nearer heir. The adopted son also inherits to the adoptive mother and her relations⁷⁸, viz. her father and brother. Conversely, the adoptive mother and her relations in her father’s family are entitled to inherit to hiṃ Vas, and Bauḍ both laid down that if after a son is taken in adoption an aurasa son is born to the adoptive father the former takes a fourth share. There is conflict among the smṛtis and the digests about the share of the adopted son when an aurasa is subsequently born, and about the meaning of ‘a fourth share’. The dāyabhāga (X. 13 p. 148) and V. C. p. 150 quote a verse of Kātyāyana⁷⁹ that when an aurasa son is born, other kinds of sons, if of the same caste as the father, take only a third of the estate. It has been held in Bengal that in these circumstances the adopted son takes one third of his adoptive father’s estate. In Benares and among Jains⁸⁰ the adopted son gets one fourth of the estate. The S. V. p. 393 holds that he gets⁸¹ ⅕th. In Bombay it⁸² has been held that the adopted son takes not ⅓th of the whole estate, but ⅕th of the share of the aurasa son i. e. ⅕th (the aurasa son taking ⅘ths). In Bombay the same rule applies among śūdras⁸³. But in Bengal and Madras it has been decided, relying on a passage in the Dattakacandrikā (p. 98)⁸⁴ that the adopted son and the subsequently born aurasa son of a śūdra share equally.⁸⁵ If the estate is impartible property or an estate to be taken by lineal primogeniture and the owner first adopted a son and then he had an aurasa son, it has been held that the subsequently born aurasa son takes the whole estate.⁸⁶ If there are two brothers who form a joint Hindu family and one of them has a natural born son and the other adopts a son, the adopted son of one brother gets on partition a share of the family estate equal to that of the natural born son of the other⁸⁷ brother, since the rule of Vaṣ applies only as between the aurasa and dattaka sons of the same maṇ⁸⁸