व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

Ś. IV. 5. 10 ] ADOPTION 113
M p. 53 ll. 21-35 ]
priest) hands over a staff to the maitrāvaruṇa', although it is possible
to regard the staff as the bhāvya (the principal factor or goal) since it is
an already existing thing and is of use in the future, yet the maitrāvaruṇa
himself, who serves a purpose in future as the agent of the act of repeating
the praiṣas as said in the passage '(the maitrāvaruṇa) holding the staff repeats
the praiṣas', is expressed to be the bhāvya by the dative form (viz.
maitrāvaruṇāya in the passage first quoted), similarly here also (in the
text of S'aunaka 'the daughter's son &c') the s'ūdra himself, who has not
paid off the debt (to his ancestors), is the bhāvya on account of the
possessive case (i e s'ūdrasya) that is used in the sense of the dative,
he being the s'eṣin (the principal whose purpose is to be served by another)
with reference to the daughter's son and the sister's son (that are s'eṣa i e
serve his purpose). Hence those two themselves (daughter's and sister's
son) being the vidheya (what is enjoined), it follows also that (in
the passage of S'aunaka) they two alone are the province or subject matter
of the restrictive rule (niyamavidhi) in the form 'daughter's son and
sister's son alone (are to be adopted) by s'ūdra', while the s'ūdra not
Nil construes the text as a restrictive rule (niyama). How difficult this passage is
may be understood from the suggestion of Mr. Gharpure to take 'vidheyatvena' as
equal to 'avidheyatvābhāvena' (tr p. 72 n 7). It is rather strange that in Vyas
Chimanlal v Vyas Ramchandra 24 Bom 473 at p 480 it is said that the V M. is
opposed to the adoption by the regenerate classes of the daughter's son and sister's son
and in Gopal Narhar v Hanmanta Ganesh I. L R. 3 Bom 273 at p 280 there is
an elaborate discussion on this point, the conclusion reached being 'we see no reason
for supposing that he intended to relax the interdiction of such adoptions by brāhmaṇas.
kṣatriyas and vaiś'yas'. It is submitted with great respect that this is wrong. The V M.
approves of what is said in the Dvaitanirṇaya by S'aṅkarabhaṭṭa and in the Dvaita-
nirṇaya it is expressly said (vide notes to V. M. p. 180) that brāhmaṇas and others
can adopt the daughter's or sister's son. In 17 All 294 (F B) it was held that the Benares
school does not prohibit the adoption by the three regenerate classes of the daughter's or
sister's son, or mother's sister's son but this was over-ruled in Bhagwan Singh v Bhagwan
Singh 26 I. A 153 (=21 All 412), where the adoption of a mother's sister's son by a
kṣatriya was held to be absolutely void According to all High Courts in India, it may
be taken as settled that the adoption of these three (daughter's son &c) by the three
regenerate classes is forbidden. Vide Mussummat Sundar v Mussummat Parbati 16 I.
A. 186 (Allahabad case), Gopalayyan v. Raghupatiayyan 7 Mad H C R. 250,
Bhau v Hari 25 Bom L R 411, Walbai v Heerbai 34 Bom 1491 (mother's sister's
son). But there are several decisions holding that the adoption of a daughter's son or a
sister's son may be valid by custom even among brāhmaṇas. Vide 14 All 53 (adoption
of sister's son by Bohra Brahmins of North West Provinces), Gowri v. Shivram P. J.
1894 p. 80 (adoption of daughter's son among Havik brāhmaṇas of Canara), Manju-
nath v Kaveribai 4 Bom L R 140 (adoption of a sister's son among Sarasvat Brāhmaṇas
of Canara), Vayidinada v Appu 9 Mad 44 F B (adoption of daughter's or sister's,
son by brāhmaṇas of South India upheld), Viswasundar v Somasundara 43 Mad 876
(adoption of a daughter's son among brāhmaṇas of the Andhra or Telugu country),
Sundrabai v. Hanmant 34 Bom. L. R 802 (= 56 Bom 298) where the adoption of a
daughter's son by a Deśastha Smārta brāhmaṇa of Dharwar was upheld on the ground of
custom.
V. M. 15.