GAJANAN BALKRISHNA DESHPANDE Vs. KASHINATH NARAYAN DESHPANDE

JUDGEMENT

(1.) Two questions of law have been argued in this appeal-one relating to the validity of an adoption, the other relating to estoppel. The facts which give rise to the question of adoption are not in dispute now and may be briefly stated. One Yeshwant died leaving four sons- Venkatesh by one wife, and Ganpat, Madhav and Narayan by another wife. Venkatesh died many years ago after adopting his step-brother, Narayan. Narayan died leaving a son- Kashinath, who was the defendant in the trial Court and is the respondent here. There was a division among the brothers, whether during or after the life-time of Venkatesh does not appear to be clear and is not material. Ganpat died sonless, leaving a widow, who died in 1903. Madhav had a son, Balkrishna, who died leaving a son Gajanan, who was the plaintiff in the Court below and is the appellant here. The dispute relates to Ganpat s share in a certain allowance, which, the plaintiff says, he is entitled to share equally with the defendant, the latter contending that he is the exclusive owner of Ganpat s interest in the allowance. The parties are Prabhus by caste. It is common ground now that if the adoption of Narayan by Venkatesh be valid, the plaintiff must succeed.

(2.) In the lower Courts the defendant urged that the adoption by Venkatesh of his younger half-brother Narayan was invalid. The lower Courts have differed as to the validity of the adoption, the trial Court holding it to be valid, the appellate Court holding it to be invalid.

(3.) In the Second Appeal before us, the same question has been raised. Mr. Setlur, for the appellant, contends that the adoption of a half-brother is not invalid according to Hindu law, that the long course of decisions of this Court is in favour of the view that the restrictions recommended by Nanda Pandita are not really binding, and that the doctrine of Niyoga, upon which the lower appellate Court has relied in deference to the opinion expressed by Dr. Bhattcicharya in his treatise on Hindu Law, affords no basis for invalidating an adoption, which is otherwise valid-at least so far as this Presidency is concerned. Mr. Jayakar, for the respondent, strongly relies upon the opinions of Nanda Pandita expressed in the Dattaka Mimamsa in his commentary on the expression bearing the reflection of a son (putrachhyayavaham) in Caunaka s text, in paragraphs 16 to 20, particularly paragraphs 17 and 19 in Chap. V. It is argued that the Mitakshara and the Vyavahara Mayukha do not afford any assistance on this point, and that in matters of adoption the opinions of Nanda Pandita are entitled to great weight and ought to be given effect to Mr. Jayakar concedes that the restrictions arising out of the necessity of a valid marriage between the natural mother and the adoptive father being possible are merely recommendatory except as to the three specified cases of a daughter s son, sister s son and mother s sister s son mentioned in Cakala s text. But his argument is that the test of a valid marriage being possible between the natural mother and the adoptive father is quite distinct from that based on the doctrine of Niyoga or of incestuous connection (viruddhasambandha) and that though the restrictions arising from one are held to be recommendatory, the restrictions arising from the other two tests are not so held. He does not lay any stress on the restrictions based upon the rules connected with the practice of Niyoga. But he maintains that the restrictions based upon the prohibition of incestuous connection (viruddhasambandha) have nowhere been held to be merely recommendatory, and ought to be held mandatory. The adoption in question is vitiated, it is argued, as any connection between the step-mother and the step-son would be incestuous. It is also argued that the sentiment of the community favours such restrictions and that the sentiment is clearly expressed by Nanda Pandita.