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

120 VYAVAHĀRAMAYŪKHA [S. IV 5. 20-21 / M. p. 58 ll. 22-36.
That passage refers to one who is not of the same gotra. In the
word ācūḍāntam ā is used in the sense of inclusive limit, since
if it were taken in the sense of exclusive limit, there would be conflict
with the verse 'when the ceremonies of cūḍā and upanayana &c.'
This text however should not be much relied upon, since it is not found in
two or three copies of the Kālikāpurāṇa.
The dattaka (adopted) son is, moreover, of two sorts, kevala (simple)
and dvyāmuṣyāyaṇa (the son of two fathers). The former is one who
is given without any condition, while the other is one who is given with the
condition 'this son belongs to us both.' $^1$ Of these, the former should per-
form the obsequial rites, śrāddhas and the like, of the adopter alone (and
not of the natural father). To explain. The acceptance (the ceremony of
adoption) of a son requires a bhāvya (the goal to be accomplished) to be
of a boy who is not of the same gotra. His real view is that these verses are without
authority and probably spurious. In Dharma v Ramakrishna I. L. R. 10 Bom 80 it is
said (at p 84) that Nilakantha's interpretation of the Kālikāpurāṇa passage as referring
to asagotra boy causes a difficulty, but 'it does not, we think, follow that because he
explains the text and comments upon it, he therefore adopts it.' At p. 86 the conclusion
reached is 'we must hold therefore that the adoption of a married asagotra brāhmaṇa is not
prohibited by the Hindu Law in force in this presidency.' In Kalgavda v Somappa 33 Bom
669 = 11 Bom. L. R. 797 (where a married Hindu having a son was given in adoption) it was
held that he alone passed into the adoptive family and that his son born before adoption re-
mained for purposes of inheritance in his natural family. In Advi v Fakirappa 42 Bom
517 it was however held that a son who was in the womb when his father was adopted passed
into the adoptive family with his father. In Viraragava v Ramalinga 9 Mad. 148 (F. B.)
it was held that (in South India) a brāhmaṇa of the same gotra may be adopted after
upanayana but before marriage. Lingayya v Chengalammal 48 Mad 407 holds following
the Dattaka-candrikā that even a śūdra cannot be adopted after his marriage.
1 Some writers (such as Mandlik, Hindu Law p. 503) were of opinion that the
dvyāmuṣyāyaṇa form had become obsolete. But decisions of courts hold otherwise. In
Basava v Lingangauda 19 Bom 428 at p 467 Jardine J. was not inclined to hold that
the dvyāmuṣyāyaṇa son was obsolete in this age in the southern parts of the Bombay
Presidency. In Srimati Uma Deyi v Gokoolanund 5 I. A. 40 (= 3 Cal. 587) this form
was recognized and it was said (at p. 51) 'to constitute a dvyāmuṣyāyaṇa there must be
special agreement between the two fathers.' In Chenava v Basangavda 21 Bom 105 it
was held that the practice is prevalent among Lingayats. In Vasudevan v Secretary
of State 11 Mad. 157 it was held that on the Malabar Coast among the Nambudri
brāhmaṇas the dvyāmuṣyāyaṇa is the ordinary form of adoption. The power of adop-
ting in this form is not confined to brothers, but may be exercised by their widows
(vide Aruhna v Parameskri 25 Bom 557 = 3 Bom L. R. 73). In Laxmipatirao v
Venkatesh 41 Bom. 315 (= 19 Bom. L. R. 23) it is said that whether it is a brother's son
or any one else that is adopted, an express stipulation that the boy is to be the son of both
is necessary (at p. 331 the passage of the Mayūkha is quoted). Vide also Huckrao v
Bhimarao 42 Bom 277 (= 20 Bom. L. R. 161). In Ikhari Lal v Babu Lal 26 All. 472
the natural mother of the dvyāmuṣyāyaṇa son was preferred as an heir to a bāndhu of
the adoptive father. In Basappa v Gurulingawa 35 Bom. L. R. 5 it was held that on
the death of an unmarried dvyāmuṣyāyaṇa adopted son his adoptive mother and natural
mother both inherited as heiresses.