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

DRA '99 Wait, line 2 only hasM.-p. 47 ll. 12-22 ]on the left. Does line 2 have anything else? No, the main text starts on the next line or is it on line 2? Wait! Look at the top left: Row 1: S. IV. 4. 32-33.|ILLEGITIMATE SON OF S'ŪDRA|'99 Row 2: M.-p. 47 ll. 12-22 ]' Row 3: *Even a son begotten by a s'ūdia on a dāsī (a concubine) may par-`

Everything is clear. I will write clean, exact lines.S. IV. 4. 32-33. ]' ILLEGITIMATE SON OF S'ŪDRA '99
M.-p. 47 ll. 12-22 ]'
*Even a son begotten by a s'ūdia on a dāsī (a concubine) may par-
take of a share at the choice (of his father) But, when the father is
dead, the brothers should make him the recipient of a half share
Kā

100 VYAVAHĀRAMAYŪKHA [ B. IV i. 23-25
[ M p. 47 l. 28-p. 48 l. 11
(share) Bṛhaspati¹ (pp 372-373 vv 19-20) also says :-
Whatever a father who has separated from his sons himself acquires, all
that belongs to the son born after partition those born before ( partition )
are declared to have no right ( to it) As with wealth so with regard to
debts gifts pledges and sales they (i e father and separated son) are inde-
pendent of each other excepting impurity (on death etc.) and the offering
of libations of water ( to the dead )
But if² there be only debts (and no property left by the separated
father) he (i. e the son born after partition) should not at all pay (his
father s) debts unless he secures a share (of property) from those (his brothers)
who separated before ( his birth) since it will be stated (later on) one
who receives riktha (ancestral wealth) should be made to pay the debt
(Yāj II 51) If (the father) be re-united (after partition) with some one
(out of the sons separated from him) then (the son born after partition)
divides (his father s wealth) with him (the son re-united) since Manu
(9 216) says :-
The son³ born after partition is entitled only to the property of his
father or he should divide it with those who might have become re-united
with him (the father)
*Yājñavalkya (II 122) makes special provision for the case where the
mother a step-mother or a brother s wife was pregnant at the time of parti-
tion after the father s death but the fact was not evident (at the time of
partition) and a son was born afterwards
After⁴ the sons have separated if a son be born (to the deceased father)
from a wife of the same class he is entitled to a (fresh) partition (with
the already separated sons).
And the partition is to be so made by all the brothers and the rest
contributing a little out of their respective shares that the share (of the after
born son) will be equal to that of each of them Viṣṇu (Dh S 17 3) says
1 The first verse of Bṛhaspati is quoted in Nawal Singh v Bhagwan Singh 4 All.
427 at p. 429
2. Mandlik s translation (p. 47) the previously separated son is not at all bound
to pay debts without receiving a share of the heritage is entirely wrong.
3. This verse is quoted in 4 All. 427 at p. 429
4 The Mayūkha applies this verse to a case where the father having died and the
mother a or step-mother s pregnancy being not known the sons separate and then a son is
born. The Mit. applies it to a partition during father's life time when the mother s
pregnancy was not known and then the father died and a posthumous son was
born The Mayūkha follows the Smṛticandrikā and the Vivādaratnākara. If th son
were born from a wife of another class, he would take a proper share from wealth
left by the father In Ganpat v Gopal 23 Bom. 636 at p 643 it is said the somewhat
vague texts of Viṣṇu and Yājñavalkya which direct separated brothers to give a share to an
after-born son apply to sons who have no provision made for them and have further been
explained by commentators as applicable only to the case of posthumous sons
P 105 (text)

$\left.{l}S IV. 4 35-39
M. p. 48 l. 11-p 49 l. 1\right]$ PARTITION AFTER FATHER'S DEATH 101
'those who separated from their father should give a share to the son born
after partition'. And this rule of Viṣṇu must be understood to be appli-
cable to the shares after taking into consideration the outgoings (the expen-
diture) and incomings (the accretions or profits$^1$) In case of existence of
these (expenditure and accretions) the same author (Yāj II. 122) says —
The allotment of a share to him (to the after-born son) should be
made out of (the estate) existing as correctly found after allowing for in-
come (accretions) and expenditure
Dṛśyāt (from the visible wealth) means 'out of the property that exists'
Vasiṣṭha (Dh S 17. 40--41) speaks of a special matter at the time of
partition among brothers 'Now (begins) the partition of heritage among the
brothers (They should wait) until those women (patently pregnant wives
of their brothers) who have no issue are delivered of sons'. The words
'waiting should be observed' are to be understood (after the sūtra of
Vasiṣṭha)
Bṛhaspati (p 373 v 21) lays down a special rule about partition after
the father's death
If there be younger brothers whose purificatory ceremonies have not
(all) been performed, then purificatory ceremonies must be performed by
the elder brother himself out of the common paternal wealth
The form yavīyasaḥ$^2$ (younger) wherein num (i.e m after the
penultimate vowel) and the long ā are absent is irregular after the manner
of Vedic usage The mention of the word bhrātṛ in (Bṛhaspati's text) is
illustrative and includes sisters And the same author$^3$ says
*And those daughters (of the deceased father) whose (marriage) cere-
monies have not been (already) performed should have their (marriage)
1 That is, proper expenditure made from their shares by each of the brothers is to
be deducted The translation of Mandlik (p 48) 'this has reference to shares neither
increased nor diminished by profit or loss' is wrong, particularly as he reads 'rekaschasahiteṣu'
and not —'rahiteṣu' Viṣṇu made no reference to the deduction of expenditure
and the addition of profits Therefore the Mayūkha had to say 'this rule must be under-
stood'&c while Yāj is explicit about them and so the Mayūkha says 'tatsatve tu &c'
In Chengama v Munisami 20 Mad 75 at p 77 Yāj II 122 is quoted and it was
held that, where the father divided joint family property among his sons and left no share
for himself and a son was subsequently born to him, that son could sue for partition of
his share in the property divided together with its accretions
2 The regular form is yavīyāṁsaḥ according to Pāṇini VI 4 19 and VII. 1 70.
Generally sixteen saṁskāras are enumerated According to Yāj I 13 they were
intended for purification For males upanayana and marriage and for females marriage
are the most important
3 But Aparārka, Vīr and others attribute this verse to Vyāsa.
*P. 106. (text)

102 VYAVAHĀRAMAYŪKHA [ S. IV. 4. 39-40 / M. p. 49 ll. 1-9
ceremonies performed by their elder brothers according to the prescribed
rites out of the paternal wealth itself
Yājñavalkya (2. 124) states a special rule as regards the saṁskāras¹
(marriages) of sisters :—
(The brothers) whose purificatory ceremonies have not been performed
should have their ceremonies performed by those brothers whose
ceremonies have been already performed and the sisters also (should have
their marriages performed) by allotting to them a fourth share out of the
shares of the brothers.
The sense is that sisters should have their marriages performed by
giving to each of them a fourth part of such share as would belong to a
son of the class to which the sister belongs.
1 What ceremonies are obligatory and included in the word saṁskāra is a matter
on which there was a sharp difference of opinion between Bombay and Madras. In Govind-
rasulu v. Devara Bhotlu 27 Mad. 206 it was held that the absolutely necessary ceremonies in
the case of males end with upanayana, that marriage is not an absolutely necessary cere-
mony in the case of males and that a sale of joint property for raising money for the marriage
of a male coparcener was not a legal necessity. But this was dissented from in Sundrabai
v. Shivnarayan 32 Bom. p. 81 where it was held after quoting (at p. 86) the verse of Bṛ. if
there be younger brothers &c. that the word saṁskāra ordinarily includes marriage.
Kameswara Sastri v. Veeracharlu 34 Mad. 422 followed 32 Bom. 81 and G. Gopalakrishnan
v. S. Venkatanarasa 37 Mad. 273 (F. B.) overruled 27 Mad. 206. In Jairam v Hari 31
Bom. 54 (where a suit was brought by a Hindu against his father and brother for partition) it
was held that the brothers are entitled to have set apart from the family property a sum suffi-
cient to defray the expenses of their prospective thread betrothal and marriage expenses cal-
culated according to the extent of the family property but that brothers' children are not so
entitled. Vide also Srinivasa v. Thiruvengada 38 Mad. 556, Gopalam v. Venkataraghavulu
40 Mad. 632 (where it was held that provision should be made for the marriage expenses of
unmarried members at a partition but only for those who are of the same degree of relation-
ship as those who have been married at the family expense) But in Narayan Annaji v.
Ramlinga 39 Mad. 587 it was held that an unmarried coparcener is not entitled to have an
anticipatory provision for the expenses of his future marriage at a partition and when the
same case went to the Privy Council (in 45 Mad 489 P. C. = 49 I A. 168) the same principle
was affirmed. 5 Lahore 375 follows 45 Mad. 489 and 53 Mad. 81 distinguishes it In 29
Bom. L. R. 1412 it was held that the earlier Bombay cases (such as 31 Bom 54) must be
regarded as overruled by 45 Mad. 489 (P. C.) and in 30 Bom. L. R. 45 the court held itself
bound to hold on account of the P. C. decision that at a partition it is not permissible to provide
for the marriage expenses of unmarried members. It is submitted with the greatest respect
that the attention of their Lordships of the Privy Council was not invited to the express
texts of Bṛhaspati and Yāj. (II 124) cited in the Mayūkha and that at some future day
their Lordships would reconsider the whole law if the matter comes before them again.
There is no doubt as regards the liability of the brothers to provide for the marriage expenses
of their unmarried sisters when they come to a partition. Chedalavada Subbayya v Chedala-
vada Ananda Ramayya 53 Mad 81 (= 59 M. L. J. 826 F. B.) where it was held that in a
partition between a Hindu father and his sons, the sons are liable for the future marriage ex-
penses of their unmarried sisters in proportion to their shares of the property divided. In
Bhagawati Shukut v Ram Jatan 45 All. 297 at p. 299 the quarter share for the sister is ex-
plained as meaning as much as will suffice for her marriage.

S. IV. 4 41 ... ] PRINCIPAL AND SECONDARY SONS 103
M. p. 49 ll. 10 29. ]
Yājñavalkya (II 128--132) sets out a scheme of sons, principal and
secondary, as it is of use in settling the taking of the heritage :
The aurasa is one who is begotten on the lawfully wedded wife; equal
to him is the putrikāputra¹, the kṣetraja (the son of the wife) is one
who is begotten on a person's wife by an agnatic kinsman or by a non-
agnate, that is declared a gūḍhaja (secretly born) son who is
secretly born in one's house, kānīna is one born of a maiden and is
considered the son of the maternal grandfather, paunarbhava (son of
a punarbhū) is said to be one who is begotten on (a married woman)
whether the marriage had been consummated or not, that is dattaka (a
son adopted) whom his mother or father gives (away in adop-
tion) a krīta (bought) is one who is sold by them (i e, by the parents),
a kṛtrima is one who is made (a son) by the man himself, the
svayam-datta is one who gives himself away (in adoption), a saho-
ḍhaja is one who was in the womb (when his mother was married),
he is an apaviddha son who, having been abandoned (by his parents),
is received (in adoption by another)²
The aurasa son begotten on a lawfully wedded wife of the same caste
(as the husband's) is the principal (or primary) son. The putrikāputra
is of two kinds, the first of which Vasiṣṭha (17 17) describes
I shall give to you (in marriage) this maiden decked with ornaments
who has no brother, the son who may be born of her will be my son

1. We saw above (p 36,) that if a brāhmaṇa has wives of different castes, the sons
   of the wife of the brāhmaṇa caste are entitled to four shares, those of the wife of the kṣatriya
   caste to three and so on. This rule says that the daughter of a brāhmaṇa from a brāhmaṇī
   wife would be entitled to one-fourth of what her brother born of a brāhmaṇī wife would get
   on a partition, the daughter of a brāhmaṇa from a kṣatriyā wife would be entitled to one
   fourth of what her brother born of a kṣatriyā wife would get. Another matter of con-
   troversy is as to the exact meaning of 'a fourth share'. The Mit. relying on Manu 9 118
   and Yāj. II. 124 remarks that a fourth share as above described was to be given to the
   unmarried sister. The same was the view of Asahāya and Medhātithi. But Bhāruci,
   the Dāyabhāga, the Smṛticandrikā, Vivādaratnākara, Halāyudha and others held that
   the sister was only entitled to a provision for marriage and not to an exact one-fourth. Vide
   notes to V. M. pp. 157-158. It has been held that the custom of appointing a daughter is
   now obsolete. Vide L. R. 2 I. A. 163, 31 Mad, 310, 1 Patna L. J. 581.
2. It is to be noted that in the verse following these Yāj lays down that each of the
   succeeding sons out of those enumerated took in the absence of the preceding one and that
   this rule applied only when all these were ascertained to be of the same class (varṇa)
   as their reputed father. Putrikāputra means either the son of the appointed daughter
   or the appointed daughter herself as a son. Vide notes to V. M, p. 159 as to putrikā.
   The kṣetraja was due to the practice of niyoga. Vide Gautama Dh. S. 18. 4-8 and
   Manu 9, 59-60 for niyoga. Modern Hindu law recognises only two kinds of sons
   out of the above, viz. aurasa and dattaka, (except in Mithilā, where the kṛtrima also
   is recognised).

64 VYAVAHĀRAMAYŪKHA [ S. IV 4 42-45-5.
[ M. p. 49 L. 30-p. 50 L.22

The same author (Vasiṣṭha Dh S 17 15) speaks of the last (second)
variety the putrikā (appointed daughter) herself is the third son (the
other two being aurasa and kṣetraja) In this (latter) case the
father s obsequies and the like are to be performed by the daughter herself
Kṣetraja is one who is begotten at the order (appointment) of the elders
on the wife of a sonless brother and the like by a sagotra (one belonging to
the same gotra agnate) such as a husband s brother and the like. Paun-
arbhava is one who is begotten on akṣatā (i e a woman who had no
sexual intercourse with the first husband) or on a kṣatā (i e a woman
who had sexual intercourse with the first husband) by a second husband
The secondary sons other than the dattaka are prohibited in the Kali age,
since among the matters prohibited in it (in Kaliyuga) we read 'the
acceptance as sons of those that are other than the dattaka and the
aurasa

Now (begins) the topic of the Dattaka (adopted son).
Now the procedure as to the dattaka Manu (9 168) says ¹
He is to be known as the son given, whom the father or the mother
affectionately gives (to another) as his son in (times of) distress con-
firming (the gift) with water the boy being of the same (varṇa with the
person adopting)
Madana says that from the use of the word वा (or) it follows that in
the absence of the mother the father alone may give, in the absence of the
father the mother alone (may give) but when both (parents) exist both should
give. From the mention of āpad (distress) it follows that (a son) should not be

1. The whole of the section on adoption is briefly reviewed in 24 Bom. 367 at pp.
   374-377 The theory of adoption involves 'the principle of a complete severance of the
   child adopted from the family in which he is born both in respect of the paternal and
   maternal line and his complete substitution into the adopter s family per Mitter J in
   6 Cal. 256 (F B.) which statement of the law was approved in L. R. 48 I A. at p. 68,
   25 Bom L. R. at p 817 and 40 Mad. 241 at p. 245 Whom the father &c. —Vide
   Shamsing v Shantabai 25 Bom 557 where it was held that a Hindu who has a son
   can after becoming a Mahomedan give his son in adoption and can authorise his
   brother (the boy's uncle) to perform the actual giving. Mother —In Fakirappa v
   Savitrewa 23 Bom. L. R. 482 (F B.) it was held following 24 Bom 89 and over-
   ruling 28 Bom 107 that a remarried Hindu widow cannot give in adoption a son by her
   first husband Gives—there must be actual giving and taking. Vide Dhyabhai v
   Champalal 1 Bom L. R 812 (where it was held that where the boy was absent and
   there was no actual giving and taking and only a deed was passed there was no
   [...]

S. IV. 6. 2 ] ADOPTION 105
M. p 50 ll. 23 30 ]
given away (in adoption) when there is no distress¹. Vijñāneśvara holds that
this prohibition (viz. a son should not be given when there is no distress)
affects only the giver² (and not the receiver or the act of adoption) and
is puruṣārtha (i.e. concerned only with the agent or his motives) and
not kratvartha (i.e. not concerned with the religious act which has an
unseen result). But this is not proper, since this prohibition (that a son
should not be given in adoption when there is no distress) is understood
to be _kratvartha_³, as it has an unseen result if we consider the syntactical
connection (of it with the whole⁴ act). Even if it be conceded that a seen
result somehow follows (from this prohibition), it is necessary to postulate
some unseen result for the positive restrictive injunction⁵ (niyama viz. a

1. Some writers like Bālambhaṭṭa and Kātyāyana quoted in D. M. take the word
   āpad to mean 'distress of the natural father such as famine', while others like Kullūka-
   bhaṭṭa take āpad to mean simply 'distress due to the absence of a son on the part of
   a sonless man'. Vide notes to V. M. p. 161.
2. 'Affects only the giver'—Vide 21 Bom. 867 (F. B.) at p. 374 where this
   passage is quoted and explained.
3. The text of the Mayūkha here is extremely abstruse and it would add to
   the bulk of the notes to point out that Mandlik and other translators and expositors are
   wrong. Therefore that task has not been attempted. Only those who have made a deep
   study of the Mīmāṁsā can follow the discussion here. Puruṣārtha and Kratvartha
   are technical Mīmāṁsā terms and are dealt with in the 4th chapter of Jaimini's sūtras.
   Some things are prescribed in the Vedic and other texts for doing which the sole motive
   is the desirable result, while there are other actions which do not directly bring about what
   is desired by the agent but are performed for helping forward some other action or thing
   which brings about something desired by the agent. The former are puruṣārtha, the latter
   kratvartha. For example, jyotiṣṭoma, which is prescribed as bringing about heaven, and heaven
   itself are puruṣārtha, while the prayājas which form part of the procedure of the
   darśapūrṇamāsa sacrifice are kratvartha. All substances useful in sacrifices and their
   purifications are kratvartha. If a thing that is kratvartha is not done or badly done,
   there is a defect in the kratu itself (the religious rite), but if a thing is simply puruṣār-
   tha and it is not done or badly done there is no defect in the religious act itself, but the
   blame attaches to the agent alone. This reasoning was applied by the Mit. to the
   (implied) prohibition of not giving a son in the absence of distress, the result being that
   the act of adoption itself was valid, only the giver incurred blame. Vide notes to V. M.
   pp. 161--162.
4. The adoption of a son is made for spiritual purposes (i.e. it has an unseen result
   just as heaven, the reward of performing jyotiṣṭoma, is an unseen result). Whatever
   is enjoined or prohibited in connection with this object is subsidiary (aṅga) to it and forms
   one connected whole with it. What is an aṅga to a religious act (kratu) is kratvartha
   (according to the Mīmāṁsā) and hence the prohibition is really kratvartha. Vākya is one
   of the six means of correctly interpreting Vedic texts.
5. A son could be given in adoption in distress as well as when there is no distress.
   Manu (9. 168) restricts the giving to a time of distress. This must have some spiritual
   or unseen result, as in the Vedic restriction of unhusking the grains of rice by mortar and
   pestle. Niyama is a technical Mīmāṁsā term. Vide notes to V. M. p. 168.
   V. M. 14

106 VYAVAHĀRAMAYŪKHA [ S. IV 5, 2
M. p. 50 l. 30-p. 51 l. 3
son should be given in adoption¹ in distress) and therefore if this restrictive
rule be violated then one cannot secure the unseen result which is the urging
motive (prayojaka) of the particular act (viz adoption here).* Some
however hold that the word āpad (distress, in Manu's text) does not
serve the purpose of implying a prohibition (of giving a son in adoption)
when there is no distress but that word only conveys this that distress (āpad)
is an occasion (on which a son may be given in adoption) since the word
āpad cannot be construed as meant to exclude (only) the giving of a son in
the absence of distress (i. e. there is no parisaṁkhyā) as such a con-
struction would be liable to the faults of giving up the plain meaning and
the like². Nor can it be urged (as an objection) that if āpad were only
to be understood as the occasion³ (of giving in adoption) there would follow
the undesirable conclusion that sin would be incurred by not giving a son
(in adoption when another is) in distress for this passage (of Manu)
1 So far Nīlakaṇṭha shows that the Mit. is not right in calling the implied prohibition
(of giving when there is no distress) puruṣārtha and that if Mīmāṁsā is to be strictly
followed it must be regarded as kratvartha so that action opposed to it would make the
adoption itself invalid. Then he puts forward the view of some that there is neither
niyama nor parisaṁkhyā in Manu's verse but that verse is only permissive and puts forth
the occasion when a son may be given. He does not refute this view and it looks probable
that he approved of it.
2. For the terms Niyama and Parisaṁkhyā vide notes to V. M. pp. 163-165. Vidhi pure
and simple lays down what is unknown from any other ordinary source of knowledge, such
as the text 'one who desires heaven should perform jyotiṣṭoma'. A Niyama restricts the
performance of a religious act to one out of two or more alternatives and prohibits the rest
e. g. the text 'one should sacrifice on an even plot of land' is a niyama as it restricts perfor-
mance to even ground and prohibits performance elsewhere. A parisaṁkhyā is a permissive
rule, it allows the doing of a thing, though it does not really enjoin it, and prohibits the
doing of things other than those allowed e. g. the text 'the flesh of the five five-nailed ani-
mals may be eaten' is a parisaṁkhyā since it does not enjoin the eating of flesh, it only per-
mits the flesh of five animals and impliedly prohibits the eating of the flesh of other animals.
A parisaṁkhyā is always liable to three faults. It has to give up the plain sense (in the
above the words read like an injunction that the flesh of five animals must be eaten i. e.
there is śrutahānipīḍā), we have to suppose that the text forbids the flesh of other animals
(which is not expressed in so many words) and this implied prohibition is against what
follows human cravings after flesh (i. e. there is prāptabādhā). The view of some writers
is that Manu's verse does not contain a niyama (as in that case it would be a sin not to give
a son in distress) nor does it contain a parisaṁkhyā which latter should not as far as pos-
sible be resorted to as it is liable to three faults. That verse is simply a definition of
dattaka and nothing more.
3. Certain actions were prescribed as always obligatory and certain others were pre-
scribed for certain occasions (nimitta). If both nitya and naimittika actions were not per-
formed, sin was incurred. If Manu's verse put forward āpad as the occasion of giving in
adoption, then by not giving a son in adoption in āpad sin would be incurred. This objec-
tion is raised against the proposition of some that āpad is only a nimitta (occasion). It is
answered in the words 'this passage &c. i. e. the verse of Manu simply defines dattaka and
contains no command (vidhi).
P. 108 (text).

S. IV. 5. 2-4 ] ADOPTION 107
M. p. 51 ll. 3-23 ]
simply conveys the relation between an appellation ( samjñā, here dattaka )
and the object denoted by it and it does not lay down ( as a vidhi, a positive
rule or injunction ) the giving ( of a son in adoption ) on the occasion of
distress.
As to what the same writer ( Vijñāneśvara ) says on the subject of
marriage, viz ' in acting contrary to the prohibition against ( marrying ) a
sickly girl and the like, one runs counter only to seen results, but the status
of being a ( legally married ) wife does follow ', that dictum also is refuted
by this very reasoning ¹
Sadṛśam ( in Manu 9 168 ), according to Medhātithi², means
' equal in family and qualities ' and not by caste and hence even one of the
kṣatriya class and the like may be a dattaka ( adopted ) son of a brā-
hmaṇa and the like According to Kullūkabhaṭṭa ³ sadṛśam means
' equal by caste ' And this ( view of Kullūka ) is proper, since Yājñavalkya,
after beginning the enumeration of all the twelve sons in the words ' the
aurasa is one born of the legally married wife ' ( II 128 ), concludes with the
words ' this rule has been promulgated by me as regards sons of the same
caste ( as the father's ) ⁴. This will be made clear by means of two texts of
Śaunaka to be cited later on Vijñāneśvara also ( holds ) the same ( view ).
He ( Vijñāneśvara ) also says that the prohibition that the eldest son'
must not be given⁵ ( in adoption ) since the eldest son alone is the foremost

1. Yāj ( 1. 53 ) lays down that one should marry a girl who is not diseased, who
   has a brother and whose gotra and pravara are different ( from those of the bridegroom )
   The Mit on this comments that even if one goes through the ceremony of marriage
   with a girl who is his sapiṇḍa or whose ( father's ) gotra and pravara are the same as
   the bridegroom's, there is no valid marriage and the girl does not become his bhāryā ( a
   wife ), but if one were to marry a sickly girl ( in spite of the direction of Yāj ), a valid
   marriage takes place and the girl is his lawful wife, only he runs counter to visible results
   ( i e. marriage with a sickly girl may cause worry and unhappiness and the children of the
   marriage may also suffer) This means that according to the Mit the prohibition against
   marrying a sickly girl is puruṣārtha and not kratvartha. Nīlakanṭha seems to hold
   that it is kratvartha
   2 Medhātithi composed a bhāṣya (commentary) on the Manusmṛti, which is the oldest
   extant one. He flourished about 900 A D Vide ' History of Dharmaśāstra ' pp. 268--275
   3 Kullūkabhaṭṭa wrote a commentary on the Manusmṛti, which is the most widely
   known of all commentaries of Manu He flourished about 1150--1250 A. D. Vide.
   'History of Dharmaśāstra ' pp 359--368.
   4 Dattaka is one of the twelve sons and so Yāj is thinking only of a sajātīya
   dattaka. This is the reason why Nīl. says that Kullūka is right
2. This passage of the Mayūkha up to the word ' sarvam ' below is referred to in
   7 Bom. 221 at p 224 Vide also Tukaram v Baban 1 Bom L. R 144 at p 152
   and Vyas Chimanlal v Vyasa Ramchandra 24 Bom 367 ( F B. ) at p 375. It
   has now been held that the prohibition as to the adoption of the eldest son is only admoni-
   tory, Vide 7 Bom. 221 and 2 Cal. 365,

108 VYAVAHĀRAMAYŪKHA [S. IV k. 4-6
[M. p. 51 l. 24-p 52 l 5
(or the primary) agent in effecting the purpose to be served by the birth of a
son as said in (Manu 9 106) a man becomes putrin (one who has got a son)
the moment the eldest son is born to him affects only the giver (of the
son) and not the acceptor (of the son)¹ (Nīl. refutes the view of the
Mit) This prohibition might indeed have affected only the giver if
this (text, Manu 9 106) did really prohibit the gift of the eldest son (in
adoption) But it contains no such (prohibition) since there is no reason
(to understand the text in that sense) and since the word putrībhavati con-
veying as it does that he becomes a putrin is simply meant to assert that
the debt (that a man owes to his ancestors) is paid off (by the birth of the
first-born son) On account of this (interpretation) the latter half (of
Manu 9 106) he (the father) becomes free from the debt of pitṛs (ances-
tors) and therefore he (the eldest son) is entitled to (receive) the whole
(wealth) from him (the father) is well construed (or connected with the
first half). Sarvam (in Manu 9 106) means the whole wealth
Only a male² can be a dattaka (adopted) and not a girl because
the pronoun saḥ (he) occurring in the passage he should be known as the
son given (Manu 9 168) that conveys the relation between a term (dat-
trima i. e. dattaka) and the object denoted by it can refer only to a male
of the same caste (as that of the person adopting) who (male) is the ob-
ject of the action of giving away on the occasion of distress the gift being
made by the parents and affection and water being the accompaniments
(guṇa) just as the word (the pronoun) tam in one should perform the
initiation (upanayana) ceremony on a brāhmaṇa of eight years* and one
should teach him (the Veda) refers to one on whom the initiation (upa-
1 The view of the Mit discussed above follows immediately after the words about
not giving a son when there is no āpad. The words are anāpadi na deyaḥ, dāturayaṁ
pratiṣedhaḥ, tathā ekaḥ putro na deyaḥ, tathāneka-putra-sadbhāvepi jyeṣṭho na deyaḥ'
The Mit. does not expressly say that the prohibition against giving the eldest affects the
giver only but Nīl. from the context holds that the Mit. meant that. The Bālambhaṭṭī how-
ever explains the Mit differently A man was born under three debts, one of which due to
his pitṛs (forefathers) he paid off by begetting a son (vide Tai. S VI 3. 10 5 Ait
Br VII 13). Paying off the debt of the ancestors and saving the father from put hell
(Manu 9 138) were the purposes served by a son.
2 In Gangabai v Anant I. L. R. 13 Bom 690 the adoption of a daughter by a brāhmaṇa
was held invalid after referring to the opening paragraph on adoption up to both should
give (p. 101 above) Another vexed question has been the adoption of daughters by naīkins
(dancing girls) In Mathura v Esu 4 Bom. 545 West J held that the custom of
adopting daughters cannot be recognised in the case of naīkins by the courts of law and
such adoption confers no right on the person adopted. This was followed in Tara v Auna
14 Bom. 90 and Hira Naikin v Radha 37 Bom 116. But the Madras High Court
in Venku v Mahalinga 11 Mad. 393 held that courts could recognise the custom of
adoption of daughters by naikins and the court dissented from 4 Bom. 545. This was
followed in 12 Mad. 214 But vide Sanjivi v Jalajakshi 21 Mad. 270
P 109 (text)

S. IV 5 6-8
M: p. 52 ll. 5-25 ]
ADOPTION
109

nayana) rite is performed, who is a brāhmaṇa of eight years and a male.¹
This reasoning refutes the dictum of some that the word dattrima end-
ing in map (i. e ma) according to the rule of (Pāṇini IV 4 20) "the
affix map is invariably added in the sense of 'effected or brought about' to
a formation ending in tri²" expresses also a girl given away to a bride-
groom (in marriage) or to another (in adoption), since (in her case also)
there is no distinction as to the fact of being brought about by gift.
S'aunaka speaks of the mode of accepting a son (in adoption):—
I, S'aunaka, will now expound the excellent (mode of) adoption. One
having no son (male issue)³ or one whose son (male issue) is dead,
having observed a fast for the sake of (adopting) a son, having made
gifts of a pair of wearing garments, a pair of ear-rings, a turban and a ring
to an ācārya (priest), who is a thorough master of the Vedas, a devotee
of Viṣṇu and who is religiously disposed, and having brought a bundle of
kuś'a grass and fuel-sticks of the palāś'a (Butea Frondosa) tree, having
summoned his relatives and kinsmen and having feasted them and
specially brāhmaṇas, having performed the whole of the details (tantra)
of the rites commencing with anvādhāna (placing of fuel-sticks on
the consecrated fire) and such other rites as purification of the clarified
butter (by passing two blades of kuś'a grass through it) and having gone
before the giver (natural father of the boy), he should cause a request

1 For supporting his proposition that only a male can be adopted, Nīlakaṇṭha cites
a parallel based on a Vedic text Upanayana (initiation for Vedic study) is performed
only in the case of males, so adoption also should be confined to males. Vide
Āpastambagṛhya IV 10 2 and Sudarśanācārya's commentary thereon for the Vedic
text 'aṣṭavarṣam' &c. The general rule is that the number and gender of a word
are not to be insisted upon as in the well-known example 'he cleanses the cup', where
though the singular is used all cups are to be cleansed But in certain cases the gender
of a word is to be insisted upon as laid down by Jaimini in IV 1 17 The word guṇa
(subsidiary matter) is used in a technical sense Vide notes to V M pp 168-169.
2 Tri is affixed according to Pāṇini (III 3 88) and has ma then added on.
The word dattrima according to Pāṇini means 'brought about by gift', which may
apply to a male as well as female Just as a son is dattrima because his status ('as
adopted son) is brought about by the action of giving, so a girl adopted by another or
married by another may also be called dattrimā since her status as bride or as adopted
daughter is equally brought about by the act of giving This is the reasoning of some.
Nīl. says that this is refuted by the parallel example of upanayana.
3 The word putra stands for son, grandson and great-grandson In Hanmant
v Bhīmacharya I L R 12 Bom 105 it was held that an adoption by a childless
Hindu is valid even though his wife be pregnant at the time of adoption and even if
she later gives birth to a son In Gopal v Narayan 12 Bom 329 it was held that an
unmarried man may adopt In Bharmappa v Ujjangauda 46 Bom 455 (=23 Bom L R
1320), after referring at p 459 to the texts of Atri, Manu and S'aunaka and to Mandlik's
translation of aputra (at p 460) it was held that a man having a grandson disqualified
from inheritance owing to congenital and incurable dumbness cannot adopt a son and that
there is nothing in the Vyavahāramayūkha to lend support to the view that he can adopt.
Vide Nagammal v Saṅkarappa 54 Mad 576, 585 which dissents from 46 Bom. 455.

110 VYAVAHĀRAMAYŪKHA [S. IV 5. 8
[M. p.52 l.25-p. 53 l. 3
1 to be made to him 'give me your son.' The giver being capable of
making a gift (should give his son) with (after reciting) the five (ṛk
verses) ye yajñena (Ṛgveda X 62 1-5) and (the adopter)
having taken (the boy) with both his hands after repeating the mantra
'devasya tvā' (Vāj S 20 3 Kāṭhaka S I 24 &c) having inaudibly
repeated the verse (ṛk) 'aṅgād-aṅgāt &c 1 and smelt the top of
the boy's head having decked with clothes and the like the boy who
bears the appearance (or resemblance) of a son (of the receiver's body),
having brought him in the middle of the house to the accompaniment
of dancing singing instrumental music and benedictory words, having
cast into fire according to the śāstra offerings of boiled rice with the
ṛk yastvā hṛdā (Ṛg V 4 10) with the ṛk tubhyam agre
(Ṛg X 85 38) and (offered) five oblations of rice with each of the
ṛks beginning with somo dadat (Ṛg X 85 41) and having per-
formed the homa to (Agni) sviṣṭakṛt 2 he (the adoptive father)
should finish the rest (of the rites) Among Brāhmaṇas the adoption

1 The first half of it occurs in Śatapatha Br. 14 3. 4. 8 the whole occurs in the
Mānavagṛhya I. 18. 6, which adds that the father after returning from a journey and having
smelt the top of the son's head, should mutter it. It occurs in the Nirukta (III. 4) also. Vide
Bhagwan Singh v Bhagwan Singh 17 All 294 at p. 380 where Edge C. J prefers Buhler's
translation 'he should then adorn the child which (now) resembles a son of the receiver's
body' to Mandlik's translation (p 52) 'having with clothes and the like adorned the boy
bearing the reflection of a son' Vide p. 370 where Mandlik's translation of Saunaka's text
quoted in the Vyavahāramayūkha is cited.
2 Homa to Sviṣṭakṛt is the one offered to fire (Agni) called Sviṣṭakṛt at the
termination of a sacrificial act. It has been held that the dattahoma is not absolutely
necessary for the validity of an adoption even among brāhmaṇas if the adopted boy
belongs to the same gotra as the adoptive father. Vide Bal Gangadhar Tilak v
Shriniwas L. R. 42 I. A. p. 135 at p 150 (= 39 Bom. 441) Govindayyar v Dorasami 11
Mad. 5 (F B.) Sheolotan v Bhirgun 2 Patna L. J 481 Govindaprasad v Rindabai 49
Bom 515 (= 27 Bom. L. R. 365) In this last case the adoption of a boy of a different
gotra by a Kanoj Brāhmaṇa's widow without dattahoma was held invalid. Where the
actual giving and taking took place during the lifetime of the adoptive father the
dattahoma where necessary may be performed after his death by his widow or another person
(vide Venkata v Subhadra 7 Mad. 548, Mandavilli Seetaramamma v Antarvilli Suryanara-
yana 49 Mad. 969) In Sri Sri Chandramala v Sri Muktamala 6 Mad 20 it was held
that among Kṣatriyas in the Madras Presidency an adoption without dattahoma was
valid but in Ranganayakamma v Alwar Setti 18 Mad 214 at p 219 it was held that
dattahoma would be necessary for the validity of an adoption among Komatis (or vaiśyas).
In Mahashoya Shoshinath v Shrimati Krishna Soonduri L. R. 7 I A p. 250 the Privy
Council observed (p. 255-56) 'The mode of giving and taking a child in adoption
continues to stand on Hindu law and Hindu usage and it is perfectly clear that among the
twice-born classes there could be no such adoption by deed because certain religious
ceremonies, the dattahomam in particular are in their case requisite. This was an
obiter dictum since the point there was whether among Śūdras there could be a valid
adoption by mere deed without actual giving and taking. Still being the dictum of
the highest tribunal for India it is entitled to great respect.'
P 110 (text)

$\left.\begin{matrix} S. IV. 5. 9
M. p. 58 ll. 3-16 \end{matrix}\right]$ ADOPTION 111
of a son should be made from amongst the sapiṇḍas^1 or in the absence
of them ( sapiṇḍas ), one who is not a sapiṇḍa ( may be adopted ),
but ( one ) should not adopt ( a son ) from elsewhere ( i e. from
another caste ) Among kṣatriyas, ( one ) from their own caste or one
whose gotra is the same as that of the ( adopter's ) preceptor^2 ( should
be adopted ), among vaiśyas ( one ) from amongst those born in the
Vaiśya caste and among śūdras ( one ) from among the śūdra castes
( should be adopted ) ^3. In the case of all the varṇas ( the four castes )
from their respective castes only ( are adoptions to be made ) and not
from a different ( caste ) And a daughter's son and a sister's son are
given in adoption to a s'ūdla also One having an only son^4* should
never give in adoption his son. By one having several sons the giving
in adoption may assiduously be resorted to A brāhmaṇa ( should
adopt ) after bestowing on his priest a dakṣiṇā ( gift or fee ) accord-
ing to his ability, a king ( after bestowing ) even as much as half ( of the
yearly revenue ) of his kingdom,^5 a vaiśya three hundred coins, a

1. The Mit on Yāj I. 52 defines the meaning of sapinda in connection with the
   topic of marriage and on Yāj, I 53 sets out the limits of Sapiṇḍa relationship. The Mit·
   lays down the general proposition that wherever the word sapinda occurs, connection
   through particles of the same body directly or mediately has to be understood Sapinḍa rela-
   tionship plays the most prominent part in three topics, viz marriage, inheritance and succession
   and āśauca (impurity on birth and death) For a translation of the Mit passage on sapiṇḍa
   vide Lallubhai v Mankuvarbai 2 Bom 388 at p 423, Lallubhai v Cossibai 7 I. A 212
   at p. 232 = 5 Bom 110, 119 and Kesscrbai v Hunsraj 30 Bom 431 ( P C ) at p 443·
   The passage from ' Among brāhmaṇas &c ' to ' sister's son are given in adoption
   to a s'ūdra also ' is quoted in 17 All. 294 ( F B ) at p 376 and in 9 Mad 44 at p 51
   ( where it is said that the Dattaka-mīmāṁsā and Dattakacandrikā add one half verse viz
   brāhmaṇādi-traye nāsti bhāgineyaḥ sutaḥ kvacit'.
   2 According to the Ās'valāyanas'rautasūtra I 3 and the Mit ( on Yāj I 53 )
   kṣatriyas were supposed not to have special gotras of their own and it is laid down that
   their relations are regulated by the gotras of their purohita (family priest) It is however
   noteworthy that Ās'valayāna (S'r S VI 15 ) himself gives Mānava, Aila and Paurūravasa
   as the pravaras of kṣatriyas For the meaning of gotra vide Āpastamba Dh S II 5 11
   15 in S B E Vol II p 126 n and Kalgavda v Somappa 33 Bom 669, 682--683.
   3 In Tukaram v Babaji 1 Bom L R 144 an adoption by a woman who was a Tilari
   ( inferior Lingayat ) of a boy who was a Kulvadi or Mahratta was held to be valid
   4 At one time courts held that the adoption of an only son was entirely null
   and void, vide Lakshmappa v Ramava 12 Bom H C R 362, 376, Waman v Krishnaji
   14 Bom 249 ( F B ), Basawa v Lingangavda 19 Bom 428 (where all texts and authorities
   are elaborately discussed ), but now all High Courts hold that such an adoption is valid
   Vide Sri Balusu Gurulingaswami v Sri Balusu Ramalakshmamma L R 26 I A 113
   ( = 22 Mad 398 ), Radha Mohun v Hardai Bibi 21 All 460 ( P C ), Vyas Chimanlal v.
   Vyas Ramachandra 24 Bom 367 F B at p 375 ( = 2 Bom L R 163 )
   5 The D M explains ' half kingdom ' to mean half of the yearly revenue of the
   kingdom and ' sarvasva ' ( all wealth ) to mean the whole of a year's income This seems
   reasonable.
   *P. 111 ( text ).

119 VYAVAHĀRAMAYŪKHA [ S. IV s. 9-16 / M p. 58 ll 16-25 ]
śūdra even the whole (of his yearly) wealth if he be unable (to pay
so much) according to his ability
Chāyāvahaham (bearing the appearance or reflection) means
similar to Dauhitro bhāgineyas a (a daughter's son and a sister's
son) Just¹ as in the passage he (the sacrificer or the adhvaryu
1 This is among the most difficult passages of the Vyavahāramayūkha, containing as it
does a highly technical discussion of Pūrva Mīmāṁsā doctrines. For detailed explanation of
various terms, vide notes to V M. pp. 118–177 The Maitrāvaruṇa is an assistant of the hotṛ priest
in sacrifice, whose business it is to loudly repeat the praiṣas (directory formula) such as 'hotā
yakṣat &c. A staff is given to a sacrificer when he is initiated for a sacrifice. This effects a
saṁskāra (purification) of the sacrificer The staff is a thing that already exists (bhūta) but it
serves a future purpose also (i. e. it is a bhāvyupayogī) The staff is given to the Maitrā-
varuṇa by the adhvaryu (or the sacrificer according to some) for holding firmly as said
in the sentence he gives a staff to the maitrāvaruṇa What is of use in future or what
is to be accomplished is called bhāvya In the sentence one desirous of heaven should
offer a sacrifice the real meaning is 'by sacrifice heaven should be accomplished i e.
heaven is the object or goal (bhāvya) to be accomplished and is put in the accusative case
(yāgena svargaṁ bhāvayet) So it may plausibly be argued that, though the staff is
already existing (bhūta) it is of use to the Maitrāvaruṇa and is put in the accusative
case and so it is the bhāvya (the object to be accomplished, the principal thing) But
this is not correct. Vide Jaimini IV 2. 16–17 for a discussion. There is another sentence
the Maitrāvaruṇa holding the staff repeats the praiṣas i. e. the staff serves him as a
support when loudly repeating praiṣas. The dative case (in maitrāvaruṇāya daṇḍaṁ
&c.) shows that the intention is to regard the Maitrāvaruṇa as the principal (pradhāna)
factor in this sentence and not the staff The giving of the staff effects a saṁskāra in
Maitravāruṇa and therefore that is the vidheya (the matter enjoined) in this sentence.
This reasoning is extended to the words of Śaunaka that a daughter's son and a sister's
son are given to a śūdra. Here also there is giving (dāna) as in the sentence he gives
the staff &c and the word śūdra is put in the genitive case which has the sense of
dative. Therefore śūdra is like Maitrāvaruṇa the principal factor (pradhāna) in this
sentence and the bhāvya. The gift of the daughter's son and sister's son is the vidheya
(what is enjoined) with reference to a śūdra, the idea being dauhitrabhāgineyādinena
śūdraṁ bhāvayet The Vedas lay down for all (including śūdras) the duty of paying
off the debt due to the ancestors by means of sons. So it follows as a matter of course
that a sonless śūdra should adopt a son. Therefore the words a daughter's son &c
are not to be construed as prescribing adoption for śūdras (as that is already known)
but they lay down a restrictive injunction (a niyama vidhi) for a śūdra that he is
to adopt a daughter's or sister's son if available. Śūdra being the principal (śeṣin)
is the bhāvya and the dauhitra and bhāgineya are the śeṣa since they serve the purpose
of the śūdra by enabling him to pay off a debt. For śeṣa and śeṣin vide Jaimini
III 1. 2-6. The vidheya (thing enjoined) is the gift of the two. It is a restrictive rule
and its province is dauhitra and bhāgineya and not śūdra It is possible for a śūdra to
adopt any one whether dauhitra and bhāgineya or not. But if this sentence is
taken as a niyamavidhi he must first choose the dauhitra or bhāgineya, that is the text
means dauhitrabhāgineyau eva śūdrasya If this were not accepted then the text of
Śaunaka would have to be construed as dauhitra-bhāgineyau śūdrasya eva (daughter's
son and sister's son are to be adopted by the śūdra alone) This would make the
sentence a parisaṅkhyā (allowing the adoption of the two to śūdra so but forbidding
it in the case of members of the regenerate classes) which is to be resorted to only if
no other construction is possible as it is liable to three faults (explained above p 100 n 2)
It is always better to construe a passage as a niyama than as a parisaṅkhyā. Hence

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.

being the vidheya (what is enjoined) in that passage cannot possibly be the
province of a niyama. If the text (of Śaunaka 'daughter's son &c.') were
explained as 'the two (may be adopted by s'ūdra only, the (undesirable)
consequence would be that there would be a parisaṁkhyā (implied exclu-
sion inferred from a permissive rule) in the case of brāhmaṇas and others
who also (like the s'ūdra) are seṣin (with reference to the act of
adoption that serves the purpose of all and is therefore śeṣa)

Therefore the daughter's son and the sister's son alone are the principal
(adoptees) for a s'ūdra. Failing them, any one else of the same caste
(may also be adopted) since the same author himself (Śaunaka) says
'among s'ūdras (one) from among the s'ūdra castes'. Nor (can it be
urged that)¹ this word jāti (caste) should be so narrowed down as to be
limited to only the daughter's son and sister's son (of a s'ūdra) since the
status of being a daughter's or a sister's son and that of belonging to the
same caste are not co-existent and since the (undesirable) conclusion would
follow that in the same smṛti (passage) a general rule will have to be
regarded as redundant.

And this matter has been expounded in the Dvaitanirṇaya² by my
revered father. To the same effect is the usage of the s'iṣṭas (cultured
or respectable people).

Thus the right of the s'ūdra (to adopt) being established like that

1. Nor can it be urged &c.—In this Nīl. anticipates an objection and meets it.
   Śaunaka gives a general rule (sāmānya rūpa) that among s'ūdras adoption should be
   from among s'ūdra castes; he also gives the particular rule that a dauhitra and bhāgineya
   are for a śūdra (which has been construed above as a restrictive rule). These two must
   be so construed as not to conflict. That can be done by saying that a s'ūdra can only
   adopt a dauhitra or bhāgineya who is of the same caste with him and that he cannot
   adopt anyone else even of his own caste. Nīl. does not accept this and gives two reasons.
   An upasaṁhāra (narrowing down of one sentence to another) is possible only when
   the two sentences stand in the relation of general proposition and particular proposition. Vide
   Jaimini III. 1. 26–27. But the above two sentences do not stand in that relation. When
   inter-marriages were allowed a s'ūdra's daughter or sister could have married a person of
   a higher caste and his dauhitra or bhāgineya would not have been a s'ūdra but of a
   mixed caste. Nīl. gives another reason also for rejecting the narrowing down. If a śūdra
   cannot adopt anyone of his own caste except dauhitra and bhāgineya the general rule
   of Śaunaka (viz. among a s'ūdras one from the s'ūdra castes) becomes useless. Therefore to
   give free scope to both rules one should construe that for a s'ūdra the principal adoptees
   are dauhitra and bhāgineya and failing them any s'ūdra. Vide notes to V. M. pp. 178–179.
   This passage has nothing to do with the fault called vākyabheda as Mr. Gharpure
   supposes (p. 74n. 1).
2. The Dvaitanirṇaya is a work of Śaṅkarabhaṭṭa, the father of Nīl. which contains
   discussions in accordance with Mīmāṁsā principles on various knotty points of dharma-
   śāstra. For a full account vide my paper on the work in the Annals of the Bhandarkar
   Institute, vol. III. part 2, pp. 67–72.
   P. 111 (text).

S. IV. 5. 12-15
M. p. 56 l. 1-p 57 l. 5 ] ADOPTION 115
of the Nisāda¹ who is a chief (to perform Raudra sacrifice), the dictum
of the S'uddhiviveka, that the s'ūdra is not entitled to make the adoption
of a son, which is accompanied with homa² that is to be performed with
the Vedic mantras, is refuted. The homa with vedic mantras should,
however, be performed by him (by the s'ūdra who adopts a son) through
a brāhmaṇa, since Parās'ara (6 63--64) says :
He for whom a fast, a vrata (certain penance or act vowed to be
done), a homa, ablution at a holy place, muttering of prayers and the
like are performed by brāhmaṇas, secures the fruit (the merit)
thereof.
Smārta³ and Harinātha also say the same thing. As to what Parās'ara
himself says (12 39):
That brāhmaṇa, who for the sake of dakṣiṇā (gift of money or fee)
offers oblation into fire on behalf of a s'ūdra, would become a s'ūdra,
while the s'ūdra (for whom he offers) would become a brāhmaṇa
that, according to Mādhava,⁴ propounds that the merit of the rite goes to
the s'ūdra and the brāhmaṇa incurs sin.
Even a woman is entitled like the s'ūdra to adopt, since there is a text
'women and sūdras have the same rules of conduct' (prescribed for them).⁵
Vasiṣṭha⁶ (Dh S 15. 1--9) says "man produced from seed and blood
1 The Nisādasthapati-nyāya is a well-known one. Vide notes to V M p 181.
A Nisāda was the offspring of a brāhmaṇa from a s'ūdra woman (Manu X 8) and so
belonged to a mixed caste. In speaking of the Raudra iṣṭi (sacrifice), the Veda says that
a Nisāda sthapati should be made to perform that sacrifice. Jaimini (VI I. 25--28)
establishes that only members of the regenerate classes are authorised to perform vedic
sacrifices. Therefore a question arises whether niṣādasthapati (who is to perform Raudra
sacrifice) means the chief (sthapati) belonging to one of the three higher castes who rules
over nisādas or one who is a chief and also a nisāda. The conclusion is that on account
of the express words of the Veda, it is the chief of the nisāda caste who is meant, though
he is not authorised to perform Vedic rites in general. Vide Jaimini VI. 1 51. A
s'ūdra also on account of the express words of S'aunaka is entitled to adopt. The S'uddhi-
viveka is a work of Rudradhara, who flourished between 1425--1460 A. D. Vide 'History
of Dharmas'āstra' pp 805--807.
2 In Indramoni v Beharilal L R 7 I. A 24 (adoption among s'ūdras of Bengal)
it was said that dattahoma was not necessary among s'ūdras and that the latter may be
performed through the intervention of a brāhmaṇa. Vide also Ravji v. Lakshmibai 11
Bom 381 at p 393.
3 Smārta is an appellation of the great Bengal writer Raghunandana. The work
referred to is his Sambandhatattva. Harinātha is the author of a large digest on dharma-
s'āstra called Smṛtisāra. The text of Parās'ara and the Mayūkha thereon are quoted in
Atmaram v Madhorao 6 All 276 (F B) at p 281
4 Mādhava is the famous minister of the great Vijayanagara emperors Bukka and
Harihara, who wrote numerous works. The work here referred to is his commentary on
Parās'ara (Vol II part 2 p 20)
5 'Women and s'ūdras &c' -- Vide Manu IX 18 and Baud Dh S IV 5 4. This rule
applies only where a woman performed a religious act independently by herself. She was, how-
ever, authorised along with her husband to take part in vedic rites. Vide Jaimini VI 1 17.
6 The whole of this passage from Vasiṣṭha (except the last sūtra) is translated in
Ganga Sahai v Lekhraj 9 All 253 at p 300. The passage from 'man' to 'permission'
is quoted in Tulsi Ram v. Behari Lal 12 All 328 at p 338 and 30 Cal. 965 at p. 972.

116 VYAVAHĀRAMAYŪKHA [ S. IV § 10
M. p. 57 ll. 6-14 ]
owes his birth to his mother and father (Hence) the mother and the
father have power to give to sell or to abandon him But one should not
give or accept an only son¹ for he saves a man (from put hell) A
woman should neither give nor receive a son (in adoption) unless with the
permission of her husband² One about to take a son in adoption should
after having invited his kinsmen having informed the ruler³ (of the intended
adoption) and having performed a homa in the middle of his house with
the vyāhṛtis take (in adoption) only him who is closely related and
who is a kinsman not remote (in habitation and speech)⁴ If a doubt arises
(as to the family and qualities of the person to be adopted) he (the person
desirous of adopting) should treat one whose kinsmen are in a remote place
as if he were a śūdra for it is declared (in the Brāhmaṇa works) that by
means of one (son aurasa or adopted) he (the adopter) saves many
If after a son is taken (in adoption) an aurasa son is born (to the adopter)
he (the adopted son) shall be the recipient of a fourth share⁴
1 One only son—In the printed Vasiṣṭha Dh. S. we read 'for he is (required)
to continue the line of his ancestor's' in place of 'for he saves &c.' This text was very much
discussed in several cases in connection with Jaimini's rule that certain texts containing
the statement of a reason are merely recommendatory Vide Beni Prasad v Hardai Bibi
14 All. 57 (F B) at pp. 72-78 and Radha Mohan v Hardai bibi 21 All. 460 (P C. )
at p. 480 for discussion of Jaimini. Jaimini's rule is contained in what is called the
hetuvan-nigaḍādhikaraṇa (I 2. 26-30) Vide also 22 Mad. 398 (P C. ) at p. 425.
2. This text of Vas. has given rise to varying interpretations. According to the
Dattaka mimāṁsā, a widow cannot adopt at all as her husband's permission cannot be had
at the time of adoption Others hold that the widow can adopt, if the husband gave her
authority to adopt. The Madras decisions hold that the words consent of the husband are
only illustrative and a widow can adopt also with the consent of the sapiṇḍas of the husband
The Mayūkha holds that a widow can adopt a son or give her son away even in the absence
of the husband's consent provided he has not prohibited her from doing so. Vide for this
passage Vithoba v Bapu 15 Bom 110 at p. 131 (where Mandlik's translation 'her father' is
regarded as correct and relied upon) and Rangubai v Bhagīrthībai I L. R. 2 Bom. 377 at
p. 380 the Collector of Madura v Mootoo 12 Moo. I A 397 at pp. 435-436 and Rajah
Venkatappa v Ranga Rao 39 Mad. 772 at p. 776.
3. Vide Narhar Govind v Narayan I L. R. 1 Bom. 607 where it was held that
the sanction of Government to an adoption by a Kulkarni or his widow is not necessary
to give validity nor has Government any right to prohibit or otherwise intervene in such
an adoption. Vide also Balaji v Datto 4 Bom. L. R. 702 ( = 27 Bom. 75).
4 This has been interpreted in Bombay as meaning that he takes 1/4 of what the
aurasa takes and not of the whole estate i. e the adopted son takes 1/5 and the subsequently
born aurasa son 4/5 Vide Giriappa v Ningapa 1 Bom 100 at p. 101 where this text is
quoted and also the remarks of the V M a little later on about the Dvyāmuṣyāyaṇa (at p.
116 text). Vide also Dhondo v Appaji P J 1893 p 6 Tukaram Mahadu v Ramchandra
49 Bom 672=27 Bom. L.R 921 (where it is held that there is no distinction in respect of the
share even among a śūdras) In Bala Krishnayya v Venkata Triambakam 43 Mad. 398 it
was held in a suit for partition brought by the father and the aurasa son against the pre-
viously adopted son that the adopted son would get 1/9 the father and aurasa son 4/9ths each.
But in Perrazu v Subbarayadu 48 I A. 280 ( = 44 Mad. 656) the Privy Council held that
among a udras in Madras and Bengal an adopted son shares equally with an after born aurasa
son as the Dattaka-chandrikā says. Vide Asita Mohan v Nirode Mohan 20 C. W N 901
P 115 (text)

S. IV 5. 16-18 ] ADOPTION 117
M. p. 57 ll. 14-34 ]
The permission of the husband, however, is ( required ) only for a
woman whose husband is alive, since it ( permission ) serves an evident ( or
visible ) purpose; but in the case of a widow, it ( adoption ) takes place
even without it ( i. e. without husband's permission ) with the assent of the
father¹ and failing him with that of the jñāti ( kinsmen ) Hence it is that
Yājñavalkya ( I 85 ) lays down woman's dependence on her husband with
reference to a particular state alone (viz. during marriage and his life)
The father should guard the unmarried daughter, the husband when
she is married, ( her ) sons in her old age; failing them ( sons ), their
kinsmen ( should guard a woman ). A woman has no independence at
any time.
In the absence of him ( the husband ) or when, owing to old age and
the like, he is unable ( to protect her ) there is dependence ( for her ) also
on the sons and the rest By Kātyāyana also the assent of the father, hus-
band and the like has been stated with reference to particular states ( of
a woman )
Whatever acts for the benefit ( of her soul ) after her death a woman
does without being permitted by the father, the husband or the son brings
no fruit to her.

• Aurdhvadehikam ( in Kātyāyana's text ) means 'having reference to
  the other world ' Therefore that permission of the husband which follows ( as
  a matter of course as a requisite) in a certain condition (viz when he is living)
  is merely re-iterated in this ( passage of Vasiṣṭha ) and is not enjoined as a
  new and positive injunction² Hence a widow has authority ( to adopt )

1. The translation of Mandlik 'her father', which Mr Gharpure follows ( p 79 ), is
   not correct The word 'father' here must be taken to mean from the context ' the father
   of the husband' ( i e the widow's father-in-law ) and not her own father The father of the
   widow has nothing to do with the family and property of her husband The woman by
   marriage passes into the husband's gotra and his jñātīs become her jñātīs also So jñātīs
   here mean her husband's kinsmen Jñāti generally means agnatic relations, vide Manu
   8 264, 9 239 and Vishwasundara v Somasundara 43 Mad 876 at pp 884--885 where the
   meaning of sapiṇḍa and jñāti in the matter of taking consent is discussed and it is held that
   the latter word means agnates and that to an adoption by a widow her daughter's son's
   consent was unnecessary. In Kesar Singh v The Secretary of State for India 49 Mad 652
   ( where the decision in 43 Mad 876 was not approved of ) it was held that if no agnates
   were left the consent of a bandhu might suffice In Vithoba v Bapu 15 Bom 110 (where
   the adoption by a predeceased son's widow with the permission of her father-in-law was
   upheld though there was no consent of her brother-in-law ) Candy J appears to quote (at
   p 131 ) Mandlik's translation ' the husband's permission no independence at any
   time' with approval ( including the words 'her father' ) but the decision shows that the
   father in that case was the father of her husband ( and not her father ).
   2 The words of Vasiṣṭha ' a woman should not give without the permission
   of her husband' do not, according to Nīl prescribe a rule unknown from other sources ( i e.
   they do not contain an apūrvavidhi ), but they simply re-iterate ( i e they are a mere
   anuvāda ) what is well-known.

118 VYAVAHĀRAMAYŪKHA [S. IV 5. 18-19 / M. p.57 l.34-p.58 l.3]
even without the permission of her husband ¹
Adūrebāndhavam (in Vasiṣṭha's passage above) means a near sapi-
ṇḍa as far as possible. And even among nearer (sapiṇḍas) the brother's
son is the principal (adoptee) since Manu (9. 182) says :—
If among brothers sprung from the same (father) one has a son, Manu
has declared that on account of that son all become putrins (persons
having a son).

1. The decisions of the Indian courts and of the Privy Council on the widow's power
   of adoption are numerous, but as they have no direct bearing on the text of the Mayūkha
   they are passed over. It is important to note, however, a few Bombay decisions. In Ramji
   v. Ghamau 6 Bom. 498 (F. B.) it was held that a Hindu widow who has not the family
   estate vested in her and whose husband was not separated at the time of his death is not
   competent to adopt a son to her husband without his authority or the consent of his un-
   divided coparceners. In Yadao v. Namdeo 48 I. A. 513 certain dicta of their Lordships (at
   pp. 524–526) of the Privy Council seemed to cast doubts on this Full Bench decision, but
   it was held that the Privy Council decision had not overruled the Full Bench decision in
   6 Bom. 498 and that a widow in a joint family cannot adopt without the consent of
   surviving coparceners (vide Ishwar Dadu v. Gajabai 50 Bom. 468 F. B. = 28 Bom. L. R. 782).
   But in Bhimabai v. Gurunathgouda 35 Bom. L. R. 200 (P. C.) the Privy Council has
   very recently overruled the decisions in Ramji v. Ghamau and Ishwar Dadu v. Gajabai
   and has held that the widow of a coparcener in a joint Hindu family in the Mahratta
   country of the Bombay Presidency has power to make a valid adoption without either the
   express authority of her husband or the consent of surviving coparceners. The Privy
   Council relies on their earlier decision in Yadao v. Namdeo and refer to Mayūkha viz. the
   words 'the permission of the husband... Hence a widow has authority to adopt &c.) Ranade J.
   in Payapa v. Appanna I. L. R. 23 Bom. 327 stated the settled rule as: 'It is only the
   widow of the last full owner who has the right to take a son in adoption to such owner and
   that a person in whom the estate does not vest cannot make a valid adoption, so as to
   divest (without their consent) third persons in whom the estate has vested of their pro-
   prietary rights' (p. 329) and then specifies four exceptions to this rule. It is submitted
   with great respect that the Privy Council decision is most unsatisfactory and does not
   correctly interpret the words of the Mayūkha and the spirit underlying it. The Mayūkha
   is here explaining the words of Vasiṣṭha 'anyatrānujñānād-bhartuḥ' and is obviously
   combating the view of the Benares lawyers represented by Nanda Pandita (vide p. 116 n.
   2 above) that a widow cannot adopt at all or without an authority from the husband. But
   there is nothing to show that he establishes the proposition that even a widow in a joint
   Hindu family can adopt not only without authority from her husband but also without the
   authority of (and even against the wishes of) her husband's undivided father or brothers.
   The noble Lords say: 'The Mayūkha and the Kaustubha which govern the Mahratta school
   regard adoption by a widow as a religious duty which does not require the authority either
   of the husband or of his kin men' (35 Bom. L. R. 200 at p. 209). But this is entirely
   wrong since the Mayūkha expressly says, (p. 117 ll. 4-5) in the case of a widow adoption takes
   place even without it (i. e. husband's permission) 'with the assent of the father and failing
   him with that of the kinsmen.' The Privy Council ignore these words of the Mayūkha
   and also forget what Kātyāyana (quoted by the the Mayūkha) expressly says about the widow
   engaging in religious acts without permission. Vide Sidappa v. Ningangowda 16 Bom. L.
   R. 663 and Yeshvadabai v. Ramchandra 23 Bom. L. R. 1320, where Payappa's case has
   been followed; but see Sangangouda v. Hanmantgouda 33 Bom. L. R. 1225 (where it was
   held that if a person dies leaving his widow and a son and that son dies leaving a widow
   the power of the mother to adopt is at an end and cannot be revived even by the consent
   given by the son's widow) and Shivappa v. Iravva 54 Bom. L. R. 533.