Aravamudha Iyengar, formerly a minor since declared major and his guardian discharged vs Ramaswami Bhattar and Another

The first defendant whose adoption has been declared invalid by the Sub-Court, Tiruchirapalli, is the appellant before us. The following pedigree

explains the relationship between the parties:

Ramaswami Bhattar and Kuppa Bhattar were two brothers. The plaintiff is the grandson of Ramaswami Bhattar. The plaintiff''s father Rangaraja

Bhattar died on the 5th March 1942. Kuppa Bhattar had a son Krishna Bhattar and a daughter Ponnammal, the second defendant. Krishna

Bhattar was married to Rukmani Ammal. Krishna Bhattar was born on the 3rd December 1887 but died on 6th June 1901. On the dale on which

he died, he executed what purports to be a will but what was in fact an authority to adopt, a registration copy of which has been marked as Ex. P.

3 in the case. At the time of his death, Krishna Bhattar was below 14 years of age. The will was presented for registration after his death by

Srirangammal, his mother, on 6th August 1901. There was an elaborate enquiry after due notice to the parties by the Sub-Registrar, who however,

by his order dated 30th October 1901, refused to register it. There was an appeal to the District Registrar, and on 22-2-1902, he directed

registration of the will as a result of a compromise between the parties. On the 18th March 1940 by Ex. D. 5, there was an attempt to settle the

dispute between Rangaraja Bhattar and Rukmani Ammal, and on that date, an unregistered family settlement deed was executed. It is common

ground that the terms of that settlement however were not carried into effect and the settlement did not become effective. On the 22nd March

1940, Rukmani Ammal adopted the first defendant, purporting to act on the authority conferred on her by her husband under the will Ex. P. 3. She

in her turn executed a will on 12-4-1940. She died on 17-4-1840. The father of the plaintiff was alive for about two years and the present suit was

instituted by the plaintiff for a declaration that the adoption of the first defendant by Rukmani Ammal was invalid and never in fact took place.

In the Court below the genuineness of Ex. P. 3 was disputed and it was also contended that Krishna Bhatter was not in a sound disposing state

of mind at the time of the execution of the deed on 6th June 1901. The factum of adoption was also denied. The main question however, on which

the controversy centred was about the validity of the authority conferred by Krishna Bhattar at the time when he was below 14 years of age. The

learned Subordinate Judge found that the factum of adoption was established, and that Krishna Bhattar executed Ex. P. 3, with a full knowledge of

its contents, and that it was genuine. He, however, declared the adoption invalid on the ground that Krishna Bhattar was a minor and was not

competent to confer an authority to adopt on his widow. An attempt was made on behalf of the appellant in the Court below to support the

adoption on the ground that Rangaraja, as the nearest sapinda then alive, consented to the adoption; but this attempt failed.

In this appeal by the first defendant, the main question argued by Mr. T. M. Krishnaswami Aiyar, his learned Advocate, was that the authority

conferred by Krishna Bhattar was valid. He made a faint attempt to support the adoption also on the ground that irrespective of the authority of

Krishna Bhattar, the adoption was on that (?) ground valid. The respondents did not challenge before us the findings of fact which were against

them. The argument, therefore, proceeded on the ground that the findings of fact of the lower Court regarding the genuineness of Ex. P. 3 and the

factum of adoption are correct.

We may dispose of the contention that Rangaraja consented to the adoption first as it does not present any difficulty. The unregistered family

settlement deed, Ex. D. 5, dated I8th March 1940, was relied on in support of me contention. That document sets out the previous disputes

regarding the will and that Rangaraja agreed not to dispute the will In consideration of Rukmani Ammal giving Him property worth Rs. 4,000 out

of the properties of Krishna Bhattar. In consideration of that Rangaraja promised not to put forth ""any claim to the other movable and immovable

properties belonging to the said Krishna Bhattar"" and consented :

that the 2nd individual shall take all the steps necessary for the propagation of her family in accordance with the terms of the will left by Krishna

Bhattar and that he would also be present and assist in the accomplishment of that object.

It is common ground that the terms of this family settlement were not carried out; but ft was contended that the passage above extracted amounts

to an independent consent on the part of Rangaraja to the adoption. It is impossible to accept this contention. All that Rangaraja agreed to do

under that clause was that he would help the lady in carrying out the terms of the will of Krishna Bhattar by taking all necessary steps for the

propagation of the family and to accomplish that object. There is no language suggesting that Rangaraja intended to assent to the adoption

independently of the existence of the authority contained in the will of Krishna Bhattar. It has now been authoritatively established that the assent of

a sapinda to an adoption should be one given by him in the exercise of an independent judgment irrespective of the question whether or not the

widow had also authority to adopt from her husband. The reason for this is obvious. As has been pointed out repeatedly by the Judicial

Committee, the sapinda has to decide for the widow the propriety and the expediency of introducing an heir to the deceased husband. Where a

sapinda gave his assent believing that the husband also gave an authority to adopt, it was held that such an assent was not valid to support an

adoption; See ''Sri Virada Pratapa Deo v. Brozo Kishoro'' 1 Mad 69 ''Ganesa Ratnam Iyer v. Gopalaratnam Iyer'' 2 Mad 270 (PC); ''Venkamma

v. Subramaniam'' 30 Mad. 50 affirming ''Subramaniam v. Venkamma'' 26 Mad 627. It is impossible to infer from the language of Ex. D. 5 that

there was an independent assent of Rangaraja to the adoption of the first defendant by Rukmant Ammal. We have no hesitation therefore in

rejecting this connection.

The only important question therefore that arises for serious consideration fn this appeal is whether the authority of Krishna Bhattar, a boy below

14 years of age at the time, was valid. Krishna Bhattar was undoubtedly a minor as he was under the age of 18 on the date he gave the authority to

adopt, if minority is to be determined with reference to the Indian Majority Act, IX of 1875. Section 2 of that Act however Contains exceptions.

The section enacts that:

Nothing herein contained shall affect:

(a) the capacity of any person to act in the following matters, (namely) -- marriage, dower, divorce and adoption.

In respect of marriage, dower, divorce and adoption therefore, the capacity of a person to act has not to be determined with reference to the age

of majority fixed by the Indian Majority Act. The personal law of the parties must therefore determine the age at which a person is entitled to act in

the matter of adoption. This position was admitted by the appellant.

The argument, however, strenuously pressed before us was that adoption under Hindu law being essentially a religious institution, if a person is

qualified to perform a religious act or partake in a religious ceremony, or in other words, ""attained ceremonial competency"", he is entitled to adopt

or even give an authority to adopt irrespective of his mental capacity; that is, irrespective of the question whether he is able to comprehend or not,

the import and the consequences of the act he is performing. In the case of ''Dwijas'' (twice born person), the right to perform a religious act or

partake in a religious ceremony, competency is acquired by the performance of upanayanam. Krishna Bhattar before his death had not only his

upanayanam performed but also his marriage, and therefore he was perfectly competent to do a religious act such as the adoption by himself,

notwithstanding his age and was equally competent to confer an authority to adopt on his wife Rukmani Ammal. So ran the argument. When

pressed with the question, whether he would draw the limit at any particular age, learned counsel for the appellant stated that this competency

would synchronise with the age at which upanayanam is to be performed among ''dwijas.'' As stated by various Smriti writers, this age of

upanayanam is eight years computed from the date of conception in the case of Brahmins, 11 years in the case of Kshatriyas and 12 years in the

case of Vysias. As Sudras are not entitled to have upanayanam performed and partake in any religious ceremony, this limit would not apply. As a

last resort, counsel for the appellant stated that without drawing any arbitrary line and fixing any particular age as the age of discretion, it must be

decided as a question of fact in each case whether or not the boy or the minor widow was capable of understanding and appreciating the act he or

she was performing. If he had attained sufficient maturity of understanding to comprehend the nature of the act he was performing irrespective of

the age, he was entitled either to take a boy in adoption or confer an authority to adopt on his wife, and on the evidence it was contended that

there was no difficulty in the case of Krishna Bhattar as he was undoubtedly of mature understanding.

We may now examine the authorities cited by learned Counsel for the appellant to see whether they lend any support to the position taken up by

him. The decision on which strong reliance was placed by him as supporting his position is that of the Judicial Committee in ''Amarendra Mansingh

v. Sanatan Singh'', 12 Pat 642 This decision, it was claimed, revolutionised the law of adoption and has once for all firmly and clearly established

that the adoption under Hindu law is a religious institution in which no secular element enters. It is true that according to Hindu conception of

religion, there is life after death which makes it incumbent upon those living in this world and related to the deceased to perform such daily and

annual ceremonies as are conducive to the spiritual welfare of the deceased. It is not enough merely to perform, but it is also obligatory to provide

if possible for the continued performance of such ceremonies without break by leaving a person, natural or adopted, who would carry on the

religious duties. A text of Sruti says:

tk; euks g oS ozk�f�fFk f=.kS _.kokSu~ tk;rs oz�p;sZ.k _""ksH;k ;Ksu nsosH;% izt;k fir`H;% ,""kok vu`.kh ;% iq=h ;Tok oz�pkjh p

AA

(A Brahmana on being born becomes a debtor in three obligations; to the Rishis (who are pro-pounders of the sacred books) for Studentship (to

peruse the same); to the Gods for Sacrifices; to the Paternal ancestors, for progeny; he is free from the debts, who has son, who has performed

sacrifices and who has studied the Vadas.)

If a person has not the fortune or having a son of his own lions (an aurasa son), the law permits the adoption of a son. A text of Atri says:

vkiq=s.kSo drZO;% iq=izfrfuf/k% lnk A

fi.Mksndf;k)srks% ;Lekr~ rL;kr~ iz;Rur% AA

firkiq=L; tkoL; i'';sr~ psr~ thorks eq[ke~ A

_.ka vfLeu~ le;fr ve`rRoa p xpNfr AA

tkr eka=sa.k iq=s.k fir`.kka vu`.kh;r% A

rnfUg ''kqf)ekIuksfr ujdkr~ =k;rs fg l% AA

,""V=;k% cgo% iq=k% ;|sdksfi ''k|ka oztsr~ A

;tsrpk�es/ksu uhya ok o`""kHkqRl`tsr~ AA

(by a sonless person only, should always a substitute of a son be anxiously made, for the sake of funeral oblations liberations of water and

obsequial rites. If the father sees the face of a living son after birth, he transfers the debts to him, and attains immortality. As soon as a son is born,

the father becomes absolved from the debts to paternal ancestors; on that day he acquires purity, since the son saves from the infernal regions.

Many sons are to be secured, if even one may go to Gaya, or celebrate the horse sacrifice or dedicate a Nila bull.)

It is this religious basis of the adoption which is referred to by Sir George Lowndes at page 649 of the report.

In order to correctly appreciate the importance of the decision and the principles enunciated by the Judicial Committee, it may not be out of

place to notice the background of the decision. Ever since the decision of the Judicial Committee in ''Bhoobun Moyee v. Ram Kishore'', 10 Moo

Ind App 279 Courts in India were unable to evolve a satisfactory limit to the power of adoption which a widow possessed either under the

authority of her husband or with the assent of sapindas. It was thought that if the estate was not vested in the adopting widow but in a collateral, the

limit to the power had been reached, though even there an exception was recognised in the case of vesting of property in a coparcener after the

death of the deceased husband of the widow. This point of view undoubtedly emphasised and attached too much importance to the secular aspect

of the adoption. Some of the pronouncements of the Judicial Committee themselves lend support to that view. The whole question was elaborately

and critically examined by Sir George Lowndes in the decision under consideration. The dispute in that case related to the succession to the

Dompara Raj; an impartible zamindari in Orissa. The parties were Kshatriyas and were governed by the Benares School of Mitakshara law. One

Raja Brajendra was the holder of the estate till 1903. On 20th July 1898, the said Raja executed a deed of authority in favour of his wife Indumati.

After the execution of the deed, the said Raja had a son Bibhudendra who succeeded to the estate of his father after his death in 1903. As he was

then a minor, the estate came under the Court of Wards. Bibudendra died on 10th December 1922 unmarried and was about the age of 20 years

and six months at that time. He was a minor as the estate was under the Court of Wards and he did not complete the 21st year. Immediately after

the death of the natural son, Indumati adopted the appellant Amarendra in purusance of the authority conferred upon her by her husband. The

adoption was disputed by a sapinda of Bibhudendra on various grounds. But we are now concerned only with the contention that the Rani''s

power of adoption came to an end and became extinguished with the death of Bibhudendra inasmuch as he had attained full legal capacity to

continue the line and therefore the adopted son Amarendra could not divest the estate which became vested in the reversioner, the collateral heir.

The two lines of argument were advanced before the Judicial Committee on behalf of the reversioner. The first was that with the vesting of the

estate by devolution in Banamali the reversioner, the power of the widow terminated and became extinguished. In any event, as Bhibhudendra

attained full legal capacity to continue the line, the power of the widow Indumati terminated.

As regards the first contention, the decisions beginning with ''Boobhun Moyee''s case'' 10 Moo Ind App 279 were considered by their

Lordships of the Judicial Committee. The conclusion arrived at was that the vesting of the property on the death of the last holder in some one

other than the adopting widow, be it either another coparcener of the joint family or an outsider claiming by reverter, or, their Lordships added, by

inheritance, cannot be in itself the test of the continuance or extinction of the power of adoption. It was observed that the Hindu law itself did not

set any limit to the exercise of the power and that there was no warrant in any of the texts of Hindu law to justify the imposition of a restriction

based on considerations of property. The necessity, however, of drawing the line was imperative and the question was where the line should be

drawn. Here again, religious importance of the son, natural or adopted, enters into consideration. None of the decisions examined by the Judicial

committee, it was stated by Sir George Lowndes, warrant the assumption made in some of the decisions that the limit is reached when the property

passed to another.

The true reason must be: to quote their Lordships: ""that where the duty of providing for the continuance of the line for spiritual purposes which was

upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the

son''s widow, the mother''s power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in

her which was necessarily suspended during the son''s lifetime will revive.

It is not enough merely to leave a son behind in order to terminate the power of the mother to make the adoption. In that case Bibhudendra was 20

1/2 years and undoubtedly attained the age of discretion; but the continuance of the line by him became impossible as he himself left no son as he

was unmarried and did not even leave a widow who could have continued the line by making an adoption to her husband. The limit therefore

would be reached unless and until there is in existence a person capable of continuing the line either by birth of by a son to himself or if he left a

widow, by an adoption by her. The ""full legal capacity test"" enunciated by the Judicial Committee in the second Berhampore case ''Madanamohana

v. Purushotham'' 41 Mad 855 which was based upon the view of Chandavarkar, J., in ''Ram Krishna v. Shamrao'' 26 Bom 526 does not mean

mere mental capacity and it is not enough to terminate the power of the widow to establish that the last male person in the line attained the full age

of discretion and therefore acquired the full legal capacity. Nor can the expression"" ""full legal capacity"" be equated to ceremonial competence, i.e.,

an expression vague enough but probably meant to convey the idea of competency to perform a religious act or the acquisition of necessary

qualification to perform it. ""Full legal capacity"" therefore according to the Judicial Committee means something more than mere age of discretion or

even ceremonial competence. The full legal capacity to continue the line means continuance of the line in one of two ways (i.e.,) either by leaving

natural or adopted son, or a widow capable of bringing into existence a son by adoption. The test is to find out whether these conditions existed at

the time of the son''s death. If they did not exist, the power did not terminate. If they existed the power came to an end and may in certain

circumstances, e.g., if the son''s widow dies without making an adoption, the mother''s power may be revived. If the object of adoption is the

religious one of perpetuating the line with a view to make a permanent arrangement for the administration of the spiritual wants of the deceased, the

object is not achieved when the continuance of the line came to a standstill. There must be some power somewhere to continue the line and if the

person lower down dies without providing for the continuance of the line, the power of the person higher up revives and continues. Extinction of a

line is considered by the Hindus as something very ignominous. The necessity to continue the line is the necessity of the future not of this world but

of the other world. This decision, therefore, in our opinion emphasis the importance of adoption from a religious point of view but does not

altogether exclude the secular element in it.

The object of adoption is one and the act of adoption itself is another."" If the object of adoption is religious it does not necessarily follow that

the act of adoption is also entirely religious without secular element in it. We are not now concerned with the object of adoption but with the act of

adoption itseif and the question whether any and if so to what the extent mental capacity is required to perform the act of adoption. Ceremonial

competence does riot, in our opinion, warrant the assumption that the Judicial Committee intended to do away with any requirement as to mental

capacity in the matter of adoption. Bibhudendra in that case was more than 20 years old but the power of adoption of indumati did not terminate

as Bhibhudendra did not leave a son or widow. The view that the adoption is more a temporal than a spiritual institution was again reiterated by the

Judicial Committee, in Ramasubbayya v. Chenchuramayya'', 1947 2 Mad. L.J. 39 following the opinion of Sir George Lowndes in ''Amarendra

Mansing v. Sanatan Singh'' 12 Pat 642 These two decisions, however, were not concerned with the question which we have now to decide. There

is no particular rule laid down under Hindu law relating to adoption either with reference to mental capacity required or to the age of majority. The

whole of the law of adoption, it may be observed, was evolved from a few texts and a metaphor. The texts are those of Manu, Vasishta,

Bahudayana, and the metaphor is that of Saunaka who laid down that the adopted boy must bear the reflection of a son (''putra chhaya.) Most of it

has been evolved by judicial decisions. It cannot, however, be gainsaid that the act of adoption consists of two elements, ''the giving and taking''

(i.e.,) the giving of the boy by the parents and the taking of the boy by the adopter and the performance of ''datta homam.'' Giving and taking imply

that the filial relationship in one family is snapped and is created in another. The act of adoption is the act of creating the relationship of son by

satisfying the requirements of Hindu law. Of these, it cannot be disputed that the giving and taking of the boy is the most essential part of adoption.

The religious ceremony of ''datta homam'' is not obligatory in all cases, as for example in the case of Sudras, who are not competent to perform

any religious ceremony, and even in the case of Brahmins if they belong to the same gotra, it is not essential as laid down in ''Govindayyar v.

Doraiswami'' 11 Mad 5 In that case, the decision of the Judicial Committee in ''Shoshinath Ghose v. Krishnasundari Dasi'' 6 Cal. 361 was taken as

authority for the proposition that any overt act is not sufficient to constitute adoption. There must be a corporeal delivery of the child by the person

competent to give to a person competent to take accompanied by the declaration on the one side, ''I give the child in adoption'' and on the other

''I take the child in adoption."" At page 7 it is further observed that that:

decision shows further that in laying down the rules the Judicial Committee had before them what actually takes place when a formal adoption is

made with ceremonies and that they rejected as superfluous the merely ceremonial observance as contra distinguished from the specific ''secular

act'' and declaration which constitutes the form in which the intention to give and take is manifested during the ceremonial.

That the acceptance of the child is a secular act is further emphasised by the fact that even during pollution though a person cannot perform a

religious ceremony, he is entitled to accept a gift of a child and where ''datta homam'' is necessary, it may be supplemented after the period of

pollution. Muthuswami Iyer and Best, JJ., observed in ''Santapayya v. Rangapayya'' 18 Mad 397 that pollution is only:

a bar to a religious act and renders religious ceremonies inemcacious but a gift and acceptance are secular acts and may therefore be supplemented

by ''datta homam'' after the expiration of the period of pollution.

Among Sudras, no religious ceremony is necessary and an adoption even during pollution is valid. In their case all that is necessary is the gift and

acceptance of the child to bring about the filial relationship of an adopted son; see ""Thangathanni v. Rama Mudali'' 5 Mad 358 and

''Annapurnamma v. Manikyamma'' ILR (1948) Mad. 755.

The view taken in the above decisions is in accordance with the rules laid down for adoption by the texts. Baudhayana lays

down�iq=ifjxzgfof/ke~� (Putra Parigraha vidhim), i.e., the rules for the adoption of a son. The adopter goes to the giver or the child and

addresses a request to them ""give me the son."" The other answers ""I give"" and the adopter accepts the gift ifjx`gfr (Parigrahati) saying /keZfoRok

ikjx`.k~gfe (for the fulfilment of religious duties I receive), lUrR;SRok ikjx`.k~gfe (to continue the line I take), see pages 24 to 28 of Yagnavalkya

Smriti, book I Achara Adhyaya, translated by Srisa Chandra Vidyarnava; see also, the ritual of ''datta homam'', in 2, Stranges Hindu Law, p. 218

taken from Datta Mimamsa of Savara Swami communicated by the late Mr. Eilis. The secular act, there fore, of acceptance of a gift of the child to

bring about the final relationship is an essential element of the act of adoption. The object no doubt is a spiritual object and it should not be

however confounded with the act itself. The essentials of the act are distinct from the object of the act. It is this failure, to draw the distinction

between the two that has enabled learned counsel for the appellant to contend that as the Privy Counsel have said that adoption is a spiritual

institution, no requirement or any mental capacity is laid down or is enjoined.

Of the other decisions cited, at the bar a brief notice of them is all that is required. In ''Rajendro Narain v. Sarada Soondaree'' 15 W. R. 548

Dwarkanath Mitter, J., laid down that the adoption by a person who had attained the age of discretion though he was a minor, was valid. He does

not however lay down the age at which according to Hindu law, a person attains years of discretion. He also emphasises that the adoption is a

religious act and the necessity for the adoption is as stated by him, that as every childless Hindu is deemed sure to go to hell called ""put"" there was

an obligation to adopt a son which is almost imperative as a matter of religious duty among Hindus. In ''Jumoona Dassya v. Bamasoondari

Dassaya'' 1 Cal. 289 the Judicial Committee held that adoption by a lady of the age of 15 or 16 and therefore of an age, which according to the

law prevarent in Bengal is to be regarded as the age of discretion, was valid. They did not however decide whether the age of discretion is to be

taken as the completion of the age of 15 or 16 as in either view, the requirement as to the attainment of the age of discretion, was satisfied in that

case. It is contended, however, that this decision is no authority for holding that a person making an adoption even though a minor should have

attained a particular age in order to establish that he had attained the age of discretion. The authority is reduced by this argument as merely

deciding the case on the facts and evidence in that case and as not enabling us to evolve any rule of law. It is difficult, however, to accept this

contention in view of the categorical statement of the Judicial Committee at page 295 of the report.

In ''Mondakini Dasi v. Adinath Dey'' 18 Cal. 69 the person who gave the authority to adopt was a man of lull age but the person who

exercised that authority, that is the widow, was a minor within the meaning of the Indian Majority Act. In fact, she was about 11 or 12 years old. If

the authority to adopt by the husband specified the boy to be adopted, there is nothing further to be done by the widow which required the

exercise of her judgment; but she had only to carry out her husband''s wishes by making the adoption. Reference was made in that case to the

decision in Rajendro Narain v. Sarada Soonduree'' 15 W. R. 548. ''Jumoona Dassya v. Bamsoondari'', 1 Cal. 289 and the omission in those

decisions to indicate the meaning of the age of discretion. The learned Judges, however, observed that there is nothing to indicate that the widow

had not attained sufficient maturity of understanding to comprehend the nature of the act. The decision in Mac Naghten''s Precedents of Hindu Law

in which the Pandits'' opinion was to the effect that the adoption by the widow, in pursuance of the express permission of her husband was a

perfectly valid adoption was referred to. In upholding the adoption, emphasis was laid on the fact that the boy taken in adoption was definitely

named in the authority given by the husband as the person to be adopted and that therefore the minority of the widow who exercised the authority

could not affect the legality of the adoption. This decision may perhaps be supported on the ground that though the widow making the adoption

was only 11 or 12 years old, no exercise of discretion on her part was required in the circumstances of the case.

Some decisions of the Bombay High Court on this point were also referred to by learned counsel for the appellant. The first was the decision in

''Vandravan Jekisan v. Manilal Chunilal'' 15 Bom 565. The husband to whom the adoption was made by the widow was below the age of 16

years at the time of his death. The widow who made the adoption was a major. Under the law obtaining in Bombay a Hindu widow is entitled to

make an adoption to her husband without his permission and even without the consent of sapindas unless the adoption was expressly prohibited by

the husband. The adoption was contested on the ground that the authority could not be implied in the case of a husband who died while yet a

minor in the eye of the law. The decision of Mitter, J., in ''Rajendro Narain v. Sarada Soonduree'' 15 W. R. 548 approved by the Privy Council in

''Jumoona Dassya v. Bamsoondari'', 1 Cal. 289 was relied on as laying down that if the person adopting, though a minor under the Indian Majority

Act, if he had attained the age of discretion which enabled him to perform religious ceremonies prescribed for his salvation, he would be competent

to make an adoption and in the case before the learned Judges, they presumed such a discretion on the part of the husband as he died two months

before he attained the age of 16 when he would have ceased, even in the eye of the law, to be a minor. The reference in this observation to

majority in the eye of the law is necessarily to the majority under Hindu law and not under the Indian Majority Act. ''Basappa v. Sidramappa'', 43

Bom 481 , was a case which raised the question of the competency of a girl of 15 years of age to make an adoption to her deceased husband.

Here, the question was not with reference to the age of the husband making the adoption or giving the authority to adopt but a case of a widow

making an adoption for her husband. With reference to the determination of the question, it was considered immaterial whether it was the husband

that made the adoption or the widow. It was pointed out that the decisions in ''Bajendro Narain v. Sarada Soonduree'' 15 W R 548 ''Jumoona

Dassya v. Bamasundari Dasya'', 1 Cal 289 and ''Mondakini Dasi v. Adinath Dey'' 18 Cal 69 did not indicate the meaning of the expression ""age of

discretion"" used in those cases. The adoption was however upheld on the ground that there was nothing to show that at the date of the adoption,

the widow had not attained sufficient maturity of understanding to comprehend the nature of the act and that in fact she was about 15 years of age.

Under these circumstances, there was no reason to presume that a girl of that age who had been married for two years or more and lived with her

husband did not realise what was meant by taking a son in adoption. This decision again proceeds on the peculiar facts of the case and enunciates

no definite test except to say that if the person making the adoption was of sufficient age to comprehend the nature of the act that he or she was

performing, it would be sufficient, to validate the adoption. In ''Murugappa v. Kalawa'' 44 Bom 327 the adoption was held invalid when made by a

widow 12 years of age who did not reach the age of puberty. Macleod, C. J., emphasised the necessity of the requirement that the adopting

widow should reach such an age of discretion as to be able to realise the importance of the act and to make up her mind as to the person sought to

be adopted. As the act of adoption was of considerable importance, the actual age of the widow, says the learned Judge, may be another test and

probably the most Important one. If she was unable to understand the nature of the act and if adoptions made by such people were to be upheld, it

would open the door to all sorts of intrigue so that the older members of the family would be in a position to induce widows of tender age to make

adoptions in their own interests and not in the interests of the widow. The learned Chief Justice clearly attaches great importance of the requirement

regarding the mental capacity of the person adopting to comprehend the nature of the act and to be in a position to select the boy. The

observations of Heaton J. in the judgment may not be correct in the light of later decisions but he also concurs with the learned Chief Justice in

holding that the person making the adoption must be in a position to exercise his or her volition. Macleod C. J. and Justice Shah had to consider

again the same question in ''Parvatava v. Fakirnaick'' 46 Bom 307, in which case the widow was 12 1/2 years of age at the time she made the

adoption. The learned Chief Justice referred to his earlier decision in ''Murugappa v. Kalava'' 44 Bom 327 and added that it is not sufficient that

the girl was exceptionally intelligent to comprehend the nature of the act, but that she must also be in a position to resist the influence which the

elders would exercise and naturally exercised upon her actions. The adoption by a girl of 12 1/2 years was held to be not valid. This decision again

is important as emphasising the necessity of the person making the adoption to exercise an independent judgment in the matter of the adoption and

if so exercised, there should be a maturity of understanding.

Lastly, there is the recent decision of the same Court in ''Kashinath Balkrishna v. Anant Murlidhar'', ILR (1942) Bom. 782 decided by Broom-

field and Sen JJ. The adoption was by a person who was 14 years and 7 1/2 months of age at time of the adoption. The validity of that adoption

was in issue. Broomfield J. who delivered the leading judgment in the case after a consideration of the earlier authorities of that and other Courts,

expressed himself thus at page 795 on the effect of the decisions:

I think it is clear from these cases that according to the view taken by this High Court, there is no hard and fast rule that an adoption by a youth or

girl who has not completed the age of 15 years is necessarily invalid. On the contrary this Court has regarded the question of the possession of the

necessary understanding and discretion as a question of fact to be determined on the evidence in the particular case. Since we have found in the

present case that Bhanudas had sufficient maturity of understanding to comprehend the nature of the act of adoption and its consequences, we

think there is no rule of law which requires us to hold that the adoption was invalid.

The Bombay High Court, has not considered whether under the Hindu law, there is an age of majority fixed as no reference was made in any of

the decisions of the texts bearing on the question. They considered it sufficient to lay down that the decision in each case must rest upon the

evidence relating to the capacity and the power of understanding of the person making the adoption whether it is a boy or a girl. The Bombay

decisions, however, do not support the extreme contention urged on behalf of the appellant that a consideration of the mental capacity of the

person making the adoption was wholly irrelevant and that all that is required is competency to perform a religious ceremony. If that is established,

according to the appellant, the adoption would be valid irrespective of the power of understanding of the person making the adoption.

No doubt the decisions of the Bombay High Court support the contention of the appellant to this extent that the question of the capacity should

be determined on the facts of each case, of course taking into consideration the age and the other factors bearing on the question. The Bombay

High Court did not treat the decision in ''Jumoona v. Bamasoondari'' 1 Cal. 289 as laying down the limit of minority at 15 or 16 and according to

the decisions, there is no such limit prescribed under Hindu law.

In our Court, Sadasiva Aiyar J. considered the question in ''Sathiraju v. Venkataswami'' 40 Mad 925. The facts in that case were: One

Subbarayudu died in 1907 having executed a registered will shortly before his death under which he gave authority to his widow Viyyamma then

11 years old to make an adoption. A few months after the death of Subbarayudu, the widow, while yet a minor, made an adoption. It was found in

that case that in the matter of adoption, Viyyamma did not exercise any discretion of hers as she was only 11 years old and her father acted on her

behalf and practically gave her no opportunity to exercise her own discretion and did not even consult her about the desirability of adopting a boy.

Both the learned Judges, Oldfield and Sadasiva Aiyar JJ. agreed in finding that Viyyamma was not consulted in the matter of the adoption. Both

the learned judges were also agreed on the authority of the decisions in ''Ranganayakamma v. Alwar Setti'' 13 Mad. 214 and ''Mondakini Dasi v.

Adinath Dey'', 18 Cal 69 that there should be a sufficient maturity of understanding to enable the widow to comprehend the nature of her act; but

Oldfield J. did not deal with the question of the age of majority under the Hindu law. The point was considered further by Sadasiva Aiyar J.,

though obiter elaborately. According to the learned Judge, the age of majority under the Hindu law, for both males and females commences at the

age of 16 izkfIr rq ""kksM''kso""ksZ i.e., on the completion of the 15th year and reliance was placed for this position on the decision in

''Mothoomohun Roy v. Soorendra Narain Deb'' 1 Cal 108 and ''Madhusudhan Manji v. Deb Govinda Newgi'' 1 Beng L R 49. The learned Judge

relied also on the decision of the Privy Council in ''Jamoona Dasya v. Bamosoondara Dasya'' 1 Cal 289 and the opinion of Jogeshchandra Ghosh

in Hindu Law at page 851 where the learned author points out the difference of opinion between the Bengal and Benares writers regarding the age

of majority under Hindu Law. According, to the Bengal writers, the age of majority is the beginning of the 16th year or the completion of the 15th

year white according to the Benares writers it is the end of the 16th year. The opinion of Mr. Ghose at page 584 was also quoted to establish that

the act of taking in adoption is not only a religious act but also a legal transaction, vyavahara and one who has not attained the age of 16 is

incapable of validly entering into such a transaction. He then quotes from Gopalachandra Sarkar Sastri''s Tagore Law Lectures on Hindu Law of

Adoption where the learned author also expressed the view in consonance with the opinion of the writers of Bengal. The observation of the learned

Judge, though obiter, is entitled to highest respect though on one point there is room for difference of opinion. In ''Mayne''s Hindu Law, latest

edition at page 193 the law thus summarised:

It is well settled that a person who is a minor under the Indian Majority Act can adopt or authorise his widow to adopt when he has attained the

age of discretion according to Hindu Law. In ''Jamoona v. Bamasoondari'', 1 Cal 289 the Privy Council held that the age of 15 or 16 was,

according to the law prevalent in Bengal, to be regarded as the age of discretion. It corresponds to the age of majority which is fixed by the

Dayabhaga School at the completion of the fifteenth year. According to the Mitakshara School, it is completion of he sixteenth year. It may be the

same for the Mitakshara School also, as it is quite possible to interpret the relevant rule as meaning the completion of the fifteenth year.

Then occurs a passage in that paragraph which it is very difficult to reconcile with the earlier statements in that paragraph. If the Hindu Law had

fixed the majority at 15 or 16 as the case way be, there is no room for fixing the age of discretion arbitrarily or with reference to other

considerations. The learned author says in the same paragraph:

The age of discretion cannot certainly be fixed earlier than the completion of the fourteenth year since the Legislature now treats a girl below 14 as

a child for purposes of marriage. The age of discretion must be fixed by the Law. Where it is not so fixed, it can only be treated as a question of

fact in each case.

The last sentence is apparently based on the view taken by the Bombay High Court in ''Kashinath Balakrishna v. Anant Murlidhar'' ILR (1942)

Bom 782.

In our opinion, the age or majority under Hindu Law is fixed either at the completion of the 15th year or at the completion of the 16th year as

the case may be whether one accepts the Bengal view or the view of other text writers which will be adverted to presently. In the present case the

boy was below 14 and therefore it is really immaterial whether the age of majority is taken as the completion of the 15th year or the 16th. The act

of adoption contains the most essential element of the selection of a boy and the acceptance of the gift of the boy which are undoubtedly acts of a

secular nature. The adoption no doubt also is a religious act; but the ''vyavahara'' or the secular element in it cannot be ignored. In order to perform

a legal transaction, Hindu law requires that the person should have attained the age of majority without which there is no validity for the transaction.

Whether the adoption is made by a male or whether he gives an authority to adopt to his widow or even if the widow makes the adoption either

under the authority of her husband or after obtaining the assent of the sapindas, the act can be done and the authority can be given only if the

person attained majority according to Hindu Law. Otherwise, the act is invalid.

No doubt there is no text of Hindu Law specifically dealing with the act of adoption and laying down the limit for the age of minority. But there

are indications in other branches of Vyavahara law fixing the age of majority. The leading authority which has been quoted with approval by most

of the commentators is that of Narada. In dealing with the question of the liability to pay debts he says:

xHkZLFkS% l}''kks Ks;% vk""Ve~k}RljkfPN''kq% A

cky vk""kks�M''kk}""kkZr~ ikSx.M�fr ''kC| A

ijrks O;ogkjK% LorU=% firjko`rs A

(A child is comparable to an embryo up to his eighth year. A youth, who has not reached the age of sixteen, is called Poganda. Afterwards he is

no longer a minor and independent. In case his parents are dead).

The dictionary meaning of the word Pouganda is ""not full grown, a boy under sixteen years of age"". iksxs.M means ""infant, not under sixteen

years of age"". In the text of Narada cited above vkiksM''kkr~ o""kZr~ is used. The expression vkiksM''kkr~ is also used by Gauthama in defining

the limit of the age for upanayanam. According to Smriti writers, upanayanam for a Brahmin should be performed in the 8th year from conception.

Gautama says {upanayaaam Brahmanasya shatame.) miu;uacz�.kL; v""Ves and 11 years for Kshatriyas and 12 years for Vyslas. Then it is stated

by Gautama (A Shodashatbrahmansya Apatita Savitri) vk""kksM''kkr~ czk�.kL;kifrrk lko=h- Haradatta in commenting on this verse states that

the letter vk in vk""kksM''kkr~ denotes vkfefof/k i.e., the limit i.e., upanayanam can be performed till the last day of the 16th year. The expression

therefore in Narada''s text vk""kksM''kk}""kkZr~ must receive a similar interpretation and must include the 16th year as well and not until the 16th

year or up to the 16th year i.e., the completion of the 15th. In commenting on verse 50 of Yagnavalkya''s Smriti ""Rina Dana Frakarana"",

Vignaneswara points out that the debt need not be paid before the arrival of vyavaharakala viz%Ir but it should be paid after the vyaharakala had

arrived. Then in order to fix the vyavaharakala he cites the text of Narada already Quoted. In commenting on this commentary Subodhini says

ikSx.M�afr ''kC|r bfr A ""kksM''ko""kkZ- uUrja LorU= bR;Fks% A After the expiry of 16 years LorU= Hkofr bfr and Balambhatti says that

ikSx.M is the same as cky% and he also adds Shodasavarshaturdhwam ""kksM''ko""kkZr~ m/oZa that the son attains independence if there is no

father. It is therefore clear from these texts that a person attains competence for vyavarhara according to Hindu law after the completion of the

16th year. Mr. Ganapathi Aiyar in his book on Hindu law at page 416 and the following pages has collected the texts bearing on the question. The

attention or the learned Judge Sadasiva Aiyar J. was not apparently drawn to some of these texts and he was willing to accept the view of the

Bengal writers. Colebrooke in his Digest of Hindu law, refers to the text of Narada and agreeable to the Bengal view, he thinks that the minority

must end with the 15th year as declared by Katyayana. Priyanath Sen a very eminent authority on Hindu law in his jurisprudence deals with this

question at pp. 299 and 300 and states as his opinion:

Having regard to the context, the best interpretation seems to me to lead to the conclusion, that minority extends till the end of the sixteenth year,

although Srikrishna Tarkalankara in his commentary on the Dayabhaga appears in one place to take the opposite view.

A person who is minor under Hindu law is considered incapable of entering into any legal transaction as stated by the learned author. The opinions

of Ghosh and Sarkar Sastri on Adoption have been cited in extenso by Sadasiva Aiyar J.

Ceremonial competency or the qualification to perform a religious rite can never be the test. In the case of dwija''s, after upanayanam is

performed a person becomes competent to perform religious rites though he may not be qualified to perform religious sacrifies until marriage. The

lower limit of the age for upanayanam, i.e., 8, 11 and 12 according as the person is a Brahmin, Kshatriya or a Vysia. It is rather difficult to assume

that a boy of that age would be capable of understanding the legal implications of affiliating a son to himself. Alter upanayanam, studentship

commences and continues until the period when he becomes a snathaka fit to enter into a married life. His studies are then finished. Though it is

now settled by decisions that a bachelor is entitled to adopt, according to strict conception of Hindu law, it would be illogical to think of a bachelor

producing a son of his own or entering into a grahasthasrama as it were, by adopting a son to himself. During the period of studentship, he is

incompetent to perform even ''datta homam'' puthreshti, as it is a sacrifice which requires the presence of a wife. The ceremonial competency does

not carry with it the necessary mental equipment for a person to form an independent judgment in the matter of affiliating a son to himself. It is

therefore difficult to accept the extreme contention urged on behalf of the appellant without any binding authority for this view if accepted would

lead, as pointed out by Sarkar Sastri in his Law of Adoption, ""pushed to its logical consequences this theory would justify the adoption even by a

boy of eight years and the Hindu legislators were not ''devoid of commonsense as to contemplate such an absurdity.'' "" No doubt the learned

author added an addenda at page 215 A citing instances of adoptions by minors which came to his knowledge during his professional career but

that contains only a passionate plea for reform in that direction and does not in any way alter or affect the opinion already expressed by him in his

lectures. The age limit, therefore, cannot be drawn at the point where a ''dwija'' becomes competent to have the upanayanam performed and this

contention does not suggest any limit of, age in the case of sudras who are not qualified to perform any religious ceremony involving the recitation

of sacred texts. To accept the text so strenuously pressed by learned advocate would lead to the serious consequences of young people being

brought under the influence of elders who, to further their own interests, would force adoptions upon them. Such a danger must necessarily be

avoided. In view of the above texts and of the opinions of text writers and also the obiter dicta of Sadasiva Aiyar J. in ''Sathiraju v. Venkatasami''

40 Mad 925 and the decision of the Judicial Committee in ''Jumoona Dassya v. Bamasoondari Dasya'' 1 Cal 289 it is impossible, in our opinion, to

accept as did the learned Judges of the Bombay High Court the test of deciding the question on the facts of each case in order to come to a

conclusion whether or not the person making the adoption was capable of understanding the nature of the act and of forming an independent

judgment uninfluenced by extraneous pressure. It will be introducing an uncertain element into the law of adoption which, if possible, should be

avoided.

In our opinion, therefore, minority under Hindu law comes to an end on the completion of the 16th year. This rule applies to males and females,

to the act of adoption as well as to an authority empowering the widow to make an adoption. If the person is below the age of majority recognised

and established by Hindu law, the adoption will be invalid.

For these reasons, in our opinion, the view taken by the learned Subordinate Judge in the Court below that the authority given by Krishna

Bhattar when he was below 14 years of age was invalid and that the adoption of the first defendant by Rukmani Ammal is also invalid was correct.

The decree, therefore, of the lower Court must be confirmed and the appeal is dismissed with costs of the first respondent.