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

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.

S. IV. 5. 19 20 ] ADOPTION 119
M. p. 58 ll 8-22 ]
The above is said in the Mitākṣarā¹ It is proper to hold that this is the
purpose of this text, since any other purpose is impossible Durebāndhavam
(in Vasiṣṭha) means 'one of another caste'
My* venerable father says that even one who is married or who has
had sons may be taken in adoption. And this is proper, since there is
nothing opposed (to this view)
As regards (the verses of) the Kālikāpurāna ;
Oh king,² that son, whose saṁskāras (purificatory ceremonies) up to
(i. e including) cūḍā (tonsure) have been performed with the gotra
(family name) of his (natural) father, does not (i e cannot)
attain the status of the (adopted) son of another. When the ceremonies of
cūḍā, upanayana (investiture with the sacred thread) are performed
under his own gotra (by the adoptive father), the dattaka and the other
kinds (of sons) become (recognised as) sons in the adoptive family, otherwise
they are called dāsa (slave) Oh king! after the fifth year (from
birth) the adopted sons and the rest cannot be (recognised as) sons
Having taken (in adoption) one who is five years old one (the adopter)
should first perform the putreṣṭi ³

1. The Mit. on Yāj. II. 132 after quoting Manu 9 182 says that the text is meant
   to forbid the adoption of another when it is possible to adopt a brother's son and that the
   text does not lay down that a brother's son is one's 'own son for all purposes, as such an
   hypothesis would be opposed to the rule laying down that one's widow, daughter and
   daughter's son succeed before a brother's son.
2. This passage of the Kālikāpurāṇa is quoted in Gangasahar v Lekhraj 9 All 253 at
   p. 906, where also the two translations of Sutherland and Colebrooke (of this passage)
   are set out and that of Sutherland approved At p 316 the comment of the Mayūkha
   about the passage being of doubtful authenticity is quoted and it is held that the authen-
   ticity of the passage is extremely doubtful (p 318) In Raja Mukund v Shri Jugan-
   nath 2 Patna 469 at p 477 the passage of the Kālikāpurāna is referred to and it is
   held that a boy may be adopted till his upanayana and that it does not matter if
   the Cūḍā ceremony is performed in the family of birth and that putreṣṭi is omitted at
   the time of adoption. Vide also Chandreshwar Prasad v Bisheshwar Pratap 5 Patna
   777 at p 844 (where the passage of the Kālikāpurāna as to five years was held not
   binding)
3. These verses of the Kālikāpurāna state four propositions, viz. (1) if all saṁskāras
   from jātakarma to cūḍā (i. e including cūḍā) have been performed in the family of the
   birth, that boy cannot be adopted in another family, (2) if a boy's cūḍā and later
   ceremonies are performed in the adoptive family he is fully an adopted son, (3) a boy over
   five years of age cannot be adopted at all, (4) a boy up to five years (but not more) whose
   cūḍā was performed in the family of birth may be adopted, provided the putreṣṭi is per-
   formed first before any other saṁskāras are performed in the family of adoption The cūḍā
   was performed generally in the third year and the tufts on the head were kept according
   to the pravaras Vide Manu II 35, Āp Gṛ. S VI, 16 3, 6--7 and notes to V M p 187
   According to Pāṇini (II 1 13) ā is used in the sense of exclusive lımit (maryādā)
   and inclusive limit (abhividhi) Vide notes to V. M p. 188 for the conflict if ā were
   taken in the sense of maryādā. Nīl. says that these verses apply, if at all, to the adoption

• P. 114 (text).

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.

stated and (therefore) in the passages prescribing that (the adoption of a
son) such as 'one about to take a son in adoption' &c (Vasiṣṭha Dh. S.
15. 6), the son is stated to be the bhāvya¹ by the word 'putram' being
used in the accusative case. And it is not possible (in the case of adoption)
to cause a son to be in the same sense in which a male child is born.
Therefore by the word 'putra' (in Vasiṣṭha's text and similar ones
on adoption) all the purposes served by a son are to be figuratively under-
stood and the adṛṣṭa (the unseen result) that urges one to perform that
(act of adoption) must be accepted as the bhāvya (in the passages laying
down adoption). Therefore (on the adoption taking place) those actions*
which spring from such special relationship as that of father and son take
place in the adopter's family (so far as the adopted boy is concerned).
Therefore is it that Manu (9. 142) says ²

1. Bhāvya literally means 'what is to be made to exist or what is to be caused to be.'
   As we say 'yāgena svargaṁ bhāvayet' (one should cause svarga to be by means of sacrifice),
   where the goal to be accomplished (svargaṁ) is put in the objective case, so in Vasiṣṭha's
   text putram is in the objective case and is the bhāvya of the rite of adoption. But the
   boy to be adopted already exists, he is not to be brought into existence literally. Hence
   the word 'putram' is to be taken in a figurative sense as indicating all the purposes served
   by a son (i. e. paying off a debt, freedom from put hell &c.). When we cannot take the
   expressed or literal sense (śakya or vācya sense), lakṣya sense is to be taken. Therefore
   what is meant is 'by the ceremony of adopting a son one should accomplish the adṛṣṭa (the
   unseen results) to be secured by means of a son'. The promise of heaven in the Vedic texts
   prompts a man to perform a sacrifice and so the latter is said to be the prayojaka (what in-
   cites or prompts to an act). Similarly the adṛṣṭa brought about by the adoption of a son
   is the bhāvya and the prayojaka of the ceremony of adoption. Vide notes to V. M.
   pp. 188-189.
2. Manu IX 142 and Nīlakaṇṭha's explanations of piṇḍa and svadhā are quoted in
   Lallubhai v. Mankuvarbai I. L. R. 2 Bom 388 at p. 121 and at pp. 125-126 it is proved by
   quotations from the Saṁskāramayūkha that Nīlakaṇṭha accepted Vijñāneśvara's explanation
   of the word sapiṇḍa. In Sri Rajah Venkata Narasimha v. Sri Rajah Rangayya 29 Mad.
   437 at p. 449 the words of the Mayūkha from 'therefore is it that Manu says' up to 'co-
   extensive with the two' are quoted and it is said 'we do not think that there is any thing
   in these passages which necessarily carries with it the idea that the adopted son is divested
   of property which is his own absolutely at the time of adoption'. In Dattatreya v. Govind
   40 Bom. 429 (where a person in whom property had become vested as the sole surviving
   male in the family was given in adoption into another family) it was held, dissenting from
   29 Mad. 437, that a person on adoption lost all rights to the property of his natural family
   that had already become vested in him before adoption. At p 433 the verse of Manu is
   translated and it is said (at p. 434) 'there is no room for the distinction that the prohibition
   against taking is confind to the inheritance after the adoption and does not extend to what
   is already inherited before adoption. The words are wide enough to include the estate
   vested in him at the time of his adoption, provided it is the estate of his natural father.' It
   is submitted with great respect that this Bombay decision is wrong and is opposed to two
   Mīmāṁsā rules of interpretation, viz. about vākyabheda and about bhūta (already existing
   things or facts) and bhavya (future things or state of facts). Vide above p. 112n 1 and p. 121n 1
   for the latter maxim and pp. 37, 38 of my 'Brief Sketch of the Pūrva-mīmāṁsā system'
   for an exposition of how these faults are committed by the Bombay decision. In 29 Mad.,

• P. 115 (text).
  V. M. 16

122 VYAVAHĀRAMAYŪKHA [ S. IV 5, 21-22
M. p. 59 ll. 10-17
The son given shall not have (share) the family name (gotra) and
the wealth (riktha) of his natural father, the piṇḍa (the cake offered
to deceased ancestors) follows the family name and the wealth of him
who gives (his son in adoption) the svadhā (the obsequies) cease (so
far as that son is concerned)
Gotrarikthānugah (in Manu) means that follows the gotra and
riktha (estate) i. e. it is generally co-existent with the two (gotra and
riktha). Dattrima (in Manu) means the simple (kevala) adopted son
since it will be stated later on that in the case of the dvyāmuṣyāyaṇa
the family name (gotra of the natural father) and the rest do persist.
48 at p. 449 one of the Mīmāṁsā doctrines appears to be tacitly employed. The Bombay
decision in Mahableshwar v. Subramanya 47 Bom. 542 (= 25 Bom. L. R. 274) seems to be
opposed in principle to the decision in 40 Bom. 429. In 47 Bom. 542 where a father and his
four sons partitioned family property and then one of the sons was given in adoption to an-
other person, it was held that the son so adopted was not divested by the adoption of the pro-
perty he took on partition. In Shyamcharan v. Shricharan 56 Cal. 1135 it was held following
29 Mad. 48 that a man who had inherited property from the family of birth was not divest-
ed of it on being subsequently adopted by another man. In Manikbai v. Gokuldas 49 Bom. 520
(= 27 Bom. L. R. 414) it was held that where a person, who is the sole surviving coparcener in
his natural family and has a daughter then living, is adopted into another family, his estate in
his natural family vests in his daughter on his adoption. This case refers to both 40 Bom. 429
and 47 Bom. 542 with approval. It is extremely difficult to reconcile the three Bombay cases.
In Raghuraj Chandra v. Subhadra Kunwar 55 I. A. 139 at p. 148 the case in 40 Bom. 429
is apparently cited with approval, but in a different connection. Vide 56 Cal. 1135 at p. 1139.
In the very recent case of Bai Kesarba v. Shivsangji 34 Bom. L. R. 1332 Patkar J. in an
elaborate judgment holds that 40 Bom. 429 was correctly decided and follows it. At p.
1340 the verse of Manu is quoted and translated (the reading na haret being accepted as
meaning 'shall not take') at pp. 1341-42 the gloss of the Mayūkha on that verse is quoted
and on p. 1342 the conclusion is reached that 'the gotra so (i. e. by birth) vested in the son
ceases after the son is given in adoption. The gotra and riktha (the estate) are inextricably
joined together in a dvandva compound and it would follow logically as well as grammati-
cally that the adopted son must lose both together and cannot lose the former and keep the
latter'. The learned judge does not however meet the two objections based on the Mīmāṁsā
stated above, nor does he correctly understand the Mayūkha. The Mayūkha does not make
a sweeping assertion that all connection of the son given in adoption with the family of birth
ceases. All that the Mayūkha says is that the verse of Manu is not to be taken literally, but
that it indicates the cessation of all those consequences that are due to connection with the
piṇḍa in the case of the natural father and the rest. The Mayūkha does not expressly say
anything about the cessation of property already taken, nor about the cessation of the gotra for
purposes other than the piṇḍa. As a matter of fact the gotra of the natural family has to be
considered even after the adoption of a boy in another gotra for purposes of marriage. The
same learned judge in the same case observes 'the simple adopted son is not competent to
marry within the prohibited degree either in the natural family or in the adoptive family.
The sapiṇḍa relationship therefore is recognised in both the families for the purpose of prohi-
bition of marriage'. In Sayaji v. Ningappa 34 Bom. L. R. at p. 60. Thus there is no
absolute cessation on adoption for all purposes, but only for those purposes
in which the piṇḍa (rice-ball) enters. If that is so as to gotra there is no reason why in the
case of riktha also there is not to be a qualified cessation, viz. as to inheritance falling in
after adoption.

S. IV. 5. 22-23 ] ADOPTION 123
M. p 59 ll 17-36 ]
( even after adoption ), Piṇḍa ( in Manu ) means, according to Medhā-
tithi, Kullūka and others, śrāddha and the rites after death. Others say
that piṇḍa means the sapiṇḍa relationship and svadhā means obse-
quial rites, śrāddha and the like Really speaking, just as in the text 'one who
has male issue and whose hair are black may consecrate the sacred fire ' a
particular stage of life ( age ) is indicated ( and the words are not to be
taken literally ) or just as in the passage ' he ( the priest ) measures half
outside and half inside the vedi ( altar ) ' a certain region ( for planting the
sacrificial post ) is indicated, similarly¹ here also ( in Manu 9 142 ) the
words gotra, riktha, piṇḍa and svadhā indicate all consequences what-
ever in relation to the natural father and the rest that are brought about by
( their ) connection with the pinda and this passage conveys ( by those
words ) the cessation of all those ( consequences ). From this follows also
the cessation of the relation ( of the boy given in adoption ) to his full
brothers, paternal uncle and the rest Therefore² also the son born of
the kevala dattaka ( simple adopted son ) should perform the sapiṇḍī-
karana, the pārvanas'rāddha and the like rites of his father ( who was
adopted ) in conjunction with the adopter alone ( and not with the natural
father ) Similarly his son also ( i e the grandson of the adopted man )³

1. The passage of the Mayūkha from this place to the words ' paternal uncle and the
   rest ' is quoted in Laxmipatirao v Venkatesh 11 Bom 915 at p. 330 for the proposition that
   the connection of the adopted boy with the natural family is severed except for marriage up
   to certain degrees. In Padma Coomar v Court of Wards 8 I A 229 at p. 216 it was held
   that an adopted son succeeds linearly as well as collaterally and in Kali Komul v Umashan-
   kar 10 I A 138 it was held that an adopted son succeeds to the brother of his adoptive
   mother, vide Dattatraya v Gangabai 46 Bom 511 for a similar proposition But in Bhau-
   saheb v. Ramgauda 25 Bom L R 813 it was held that a person who is adopted into another
   family cannot succeed to the property of his maternal grandfather in his natural family.
2. This sentence is quoted in 11 Bom L R. 797 at p 809 (=33 Bom 669)
   3 Nīlakaṇṭha does not approve of the literal and forced interpretations of piṇḍa and
   svadhā given by others Nīlakaṇṭha as is often the case cites two illustrations from the
   Pūrvamīmāṁsā Consecration of sacred fires is enjoined in such Vedic passages as ' a
   brāhmaṇa should consecrate fires in spring &c ' There is the passage ' one who has had
   sons and who has black hair &c ' As consecration of fires has already been ordained, this
   passage only prescribes some detail about it. If the passage be construed literally as laying
   down both conditions ( having sons and having black hair ), there would be two vidhis in one
   sentence ( i e there would be vākya-bheda) which is a blemish ( vide above p 121n 2) A man
   may have no son till his hair turns grey and then he cannot consecrate fires if the literal
   sense were taken So by lakṣaṇā ( by indication ) all that the two words mean is that
   vigorous manhood is the time for consecration of fires ( i e one must not be a mere youth
   nor old ) Lakṣaṇā, which is only a fault ( if any ) of words is to be preferred to vākya-
   bheda which is a fault of sentence Similarly the words ' he measures half inside &c ' are
   not to be taken literally, but only as indicating the region where the post is to be planted.
   Vide Jaimini III 7 13-14 and notes to V M pp 190-191 So in Manu's verse the
   words piṇḍa, svadhā and the rest are not to be taken literally There is on adoption not
   only severance from the natural father as regards gotra, estate, piṇḍa, but there is a
   severance for all purposes with the natural father's family. S'rāddhas are subdivided in

124 VYAVAHĀRAMAYŪKHA [B. IV 5. 23-25
[M p.59 l.36-p. 60 l.21
After starting the topic of dvyāmuṣyāyaṇas (sons of two fathers)
with the words Now if sons whether adopted purchased or born of appo-
inted daughters (putrikā) become devoid of pravara (i e lose the pra-
vara and therefore the gotra they had by birth) on account of their being
accepted by another (as his) they become dvyāmuṣyāṇas as to what Kā-
tyāyana (then) says¹ if they (those who take dattaka &c) have no issue
born of their wives then these (sons dattaka purchased, putrikāputra)
shall take the estate and offer piṇḍa to them up to three ancestors and if
both (the person taking and the person giving) have no issue, they (the
dattaka, the purchased, the putrikāputra &c) shall offer (piṇḍa) to both,
in one and the same śrāddha he (the son adopted purchased &c) should
repeat both the giver and the taker after having separately intended (the
same piṇḍa for both) up to the third ancestor that has reference to the
dvyāmuṣyāyaṇa (and not to the simple adopted son), since* the opening
words are they become dvyāmuṣyāyaṇas Therefore the dvyāmuṣyā-
yaṇa, when the natural father or the adoptive father has no other son should
offer the piṇḍa to him and take the estate, but not when another son exists
when however both (the natural father and the adoptive father) have
aurasa (legitimate) sons he (the dvyāmuṣyāyaṇa) should give piṇḍa
to none (of the two fathers) and should take a fourth part of the share
that belongs to the aurasa son of the adopter since Vasiṣṭha (15 9)
says if after a son is taken in adoption an aurasa (son of the body) be
born he (the adopted son) shall be the recipient of a fourth share and
since Kātyāyana says
various ways. One division is into pārvaṇa and ekoddiṣṭa. Pārvaṇa śrāddha is one that
is offered on a parvan i. e. on amāvāsyā (new moon) full moon &c. It is performed with
special regard to three paternal ancestors with whom are associated the wives of the
three paternal ancestors and the three male ancestors of one's mother and their
wives also are invoked in this śrāddha. The ekoddiṣṭa is performed for a single
person. Sapiṇḍīkaraṇa is a rite performed for a deceased person at the end of a year from
death or on the 12th day from death whereby from being a preta he is raised to the
position of a pitṛ and shares the rice cakes along with the ancestors. The son of the
kevala dattaka, according to Nīlakaṇṭha is to offer in the pārvaṇa &c. piṇḍas to his father the
adopted man to the adopter alone (as his grandfather) and to the adopter's father but
not to the natural father (of the adopter) and the latter's father Similarly the grandson of
the kevaladattaka offers piṇḍas to his father (son of the man adopted) his grandfather
(the man adopted), and to his great-grandfather (the person adopting) but not to
the natural father of the man adopted, though the latter also is in a way a great-grandfather
1 This passage is variously read by Haradatta, Bhaṭṭoji and others. When offering
one piṇḍa, the dvyāmuṣyāyaṇa was to intend it both for the giver and the adopter whose names
he was to repeat, the second for the father of the giver and of the adopter and so on.
According to some writers two piṇḍas were to be offered to the giver and the adopter
separately two to their fathers and two to their grandfathers. Vide notes to V. M. pp. 120-121.
In a well known verse several means for arriving at the correct purport of a passage are
laid down viz. upakrama (opening words) and upasaṁhāra (concluding words)
abhyāsa (repetition) apūrvatā phala arthavāda and upapatti. Nīlakaṇṭha here relies
on the first means (upakrama).
P 116 (text)

S. IV. 5. 25-26 ] ADOPTION 126
M p 60 ll. 21-32 ]
If an aurasa son be born, the (other kinds of) sons take the fourth
share, provided they belong to the same caste; but those (secondary
sons) who do not belong to the same caste (as that of their father) are
entitled to food and raiment (alone)
The reading of the Kalpataru is 'take the third share'. Vijñāne-
śvara says¹ that 'savarṇāh (in the verse of Kātyāyana) means 'the
kṣetraja, the dattaka and the like'. When both (the adopter and the
giver of the dvyāmuṣyāyaṇa) have no (other) son, he (the dvyāmuṣyā-
yaṇa) should perform a single śrāddha only for both (giver and adopter)
in the manner already declared above in the words 'in one and the same
śrāddha &c' As to what Kārṣṇājini (quoted) in Hemādri says²
Whoever may be the members belonging to the respective families of
the fathers (natural and adoptive), the adopted sons and the rest should
perform their conjunction (sapiṇḍīkaraṇa) on their death with the
pitṛs in the respective families (of birth or adoption) The sons of
them (of the dattaka and the rest) should perform (the sapiṇḍīkaraṇa
─────────────────────────────────────────────────────────────

1. The Mit on Yāj II 132 gives this explanation of savarṇāh and explains asavarṇāh
   as 'kānīna, gūḍhaja, sahodha, and paunarbhava'
   2 These verses have been variously explained by Kamalākara, Hemādri and others.
   Vide notes to V M pp 191--197 for detailed explanation The sapiṇḍīkaraṇa of a deceased
   person is always made with reference to his three immediate paternal ancestors If a
   person dies in the natural father's or adoptive father's family of the dattaka and he has
   to perform the sapiṇḍīkaraṇa of that man then he (the dattaka) should associate the
   deceased with the latter's three ancestors If the dattaka is himself dead, his sapiṇḍīkaraṇa
   has to be performed by his son with the three ancestors of the dattaka, father, grandfather
   and great grandfather But he had two fathers (natural and adoptive) So in the place
   of the father of the dattaka, two names (of the natural and adoptive fathers) are to be
   repeated when offering the piṇḍa for the father of the dattaka If the grandson of the dattaka
   has to perform the sapiṇḍana of his own father (i e of the son of the dattaka), then the
   dattaka will be the father of the deceased and the grandfather of the deceased would be the
   natural and adoptive fathers of the dattaka Nilakaṇṭha says that it is only the natural
   father of the dattaka whose name is to be taken as the grandfather (when the deceased is
   the son of the dattaka) When it is the great-grand son of the dattaka who has to
   perform the sapiṇḍana of his deceased father (i e of the grandson of the dattaka), the
   father of the deceased is the son of the dattaka, the grandfather is the dattaka himself
   and the natural and adoptive fathers of the dattaka occupy the place of great-grandfather
   The question is whether in the sapiṇḍana of the grandson of the dattaka by the great-
   grandson, both names are to be repeated with reference to the piṇḍa for the
   great-grandfather The answer is that there is an option, viz. the name of the natural
   father of the dattaka must be taken as the great-grandfather of the deceased grandson
   of the dattaka, but the name of the adoptive father of the dattaka may or may not be taken
   with reference to the piṇḍa for the great-grandfather The words 'eṣā tripuruṣī' are
   capable of several meanings According to Nīlakaṇṭha they seem to mean that the
   relationship due to piṇḍa extends only up to three generations i e the adopted son, his
   son and grandson are connected with the adopter by piṇḍa relation, but the great-
   grand-son of the adopted person is not so connected with the adoptive father.

126 VYAVAHĀRAMAYŪKHA [ S. IV ś. 26-28 / M. p. 60 L32-p. 61 L 23
of the dattaka) with two (natural and adoptive fathers) while the grand
sons of them (of the dattaka and the rest) should perform (the sapiṇḍī
karaṇa of their father the son of the dattaka) together with one (i e
the dattaka) As regards the fourth generation (i e the great-grand
son of the dattaka) there is an option. Therefore this piṇḍa relation-
ship extends to three generations only "On days (such as new moon)
common (to all deceased ancestors for performing śrāddha) there is no
distinction as regards members of the groups (of the dead on the natural
fathers side or the adoptive fathers side) but on the day of the
anniversary of death they (the dattaka and the rest) should perform
according to the prescribed rules the śrāddha with reference to one
(deceased person) only
that also has the same import as the text of Kātyāyana (discussed
above) The meaning is as follows The dvyāmuṣyāyaṇa adopted son
and the like should perform the sapiṇḍīkaraṇa of persons dying in the
families of their natural father and their adoptive father with members of
their own group viz their fathers and the rest, but the sons of the adopted
son and the like should perform (the sapiṇḍīkaraṇa) of the latter in con-
junction with both the natural and adoptive fathers The grandsons of them
(of the dattaka &c.) also (should join) their (deceased) father with the
dattaka who is their grandfather and with the natural father of the dattaka
(who is their) great-grandfather Caturthe puruṣe (as to the fourth
generation) means as regards the great grandson of the dattaka
Chandaḥ means volition (The meaning is that) the great-grandson
of the dattaka performing the sapiṇḍana of his own father i e grandson of
the dattaka may repeat the name of the adoptive father or not, but he must
repeat (or invoke) the name of the natural father (of the dattaka) At the
new moon and other times that are sādhāraṇa (common i e when one
may perform a śrāddha for all ancestors &c) śrāddha should be offered to
members of the families of the natural and adoptive fathers while on the
day of the anniversary of death a śrāddha called ekoddiṣṭa should be per-
formed with reference to one (deceased) person only
Some however say that there is no such thing as a kevaladattaka
(a simple adopted son) because there is no text containing a positive injunction
about him and further that since there is no text positively prescribing the
condition 'this son belongs to us both' a son taken (in adoption) even
without such a condition is still a dvyāmuṣyāyaṇa and that by him
two śrāddhas or one śrāddha intended for both the natural and adoptive
fathers should be performed on the day of the new moon and the like
while the son of him (of the adopted man) should perform the sapiṇḍī
karaṇa and the pārvaṇa-śrāddha and the rest for the adopted man
(when dead) in conjunction with both the natural and the adoptive fathers
F 11 (text)

Ś. IV. 5 28-30 ] ADOPTION 127
M. p. 61 l. 24-p 62 l. 1 ]
and that the same holds good with reference to the son of that (son of the
dattaka) This requires consideration (i e this is not quite correct)
Although the kevaladattaka¹ has not been mentioned anywhere expressly
by that very word, yet he (the kevaladattaka) does follow (is established
as a separate entity) by implication from the fact that the text of Manu (9.
142) already mentioned declares the cessation of all connection (of the son
given in adoption) with the natural father and others and that this (cessa-
tion of all connection) is wanting in the case of the dvyāmuṣyāyaṇa.²
Moreover, the text of Gautama (Dh. S 4 3) (one should marry a
person who is) 'beyond the seventh from out of the relations of the father
and of the actual procreator and beyond the fifth from out of the relations
of the mother' lays down a prohibition of marriage up to the seventh degree
in the family of the procreator, which (prohibition) would be superfluous
as regards the dvyāmuṣyāyaṇa, since in him there does exist (according to
all writers) sapiṇḍa relationship (with the procreator) Hence in order
to give this (passage of Gautama) its full meaning (or purpose) the
(existence of the) kevaladattaka (as separate from dvyāmuṣyā-
yaṇa) must be admitted, since as regards him the cessation of the sapiṇḍa
relationship is declared (in the text of Manu) And moreover there is a
conflict between the following (verse) from the Pravarādhyāya³.
1 The passage from this line to the sūtra of Gautama and the comment thereon
is referred to in Ramangauda v Shivaji (1876) P. J p 78. for the proposition that the
marriage of a brāhmaṇa with his sister's daughter is void on the ground of sapiṇḍa-ship
in the absence of special custom
2. Nīl. is quite right here His argument is that when Manu speaks of complete
cessation of connection with the natural father he is speaking of a kevala dattaka, though he
does not use that word, since all texts are agreed that as regards the dvyāmuṣyāyaṇa there is
no such complete cessation.
Gautama's sūtra is similar to what Yāj (1 58) and Manu (3. 5) say, Gautama, however
introduces the word 'bījinaḥ' after the word 'pitṛ bandhubhyaḥ' In ancient times there
were several secondary sons, such as kṣetraja, putrikāputra &c Therefore it was possible
to find that one person was in law the father of a person, while the actual progenitor was an-
other, as e g in the case of niyoga, the son born of a woman belonged to her husband, while
the actual procreator (bījin) might have been the husband's brother, or sagotra or some one
else Therefore Gautama laid down that prohibition on the ground of sapiṇḍa relationship in
marriages extended up to seven degrees on the legal father's side as well as on the procreator's
side It is however not easy to see how this sūtra helps Nīl in establishing the existence
of kevala dattaka Gautama is not laying down here a new rule unknown from another source,
He simply summarises the rules deducible from the practices of the śiṣṭas of his day and
therefore this sūtra must be regarded as a mere reiteration, just as his sūtra about ownership
was held by Nīl to be a mere reiteration of what was well-known.
3 In the Śrauta sūtras there is a chapter on pravaras Whence this verse is quoted
it is difficult to say. A man cannot marry a girl born of the same gotra as his Some
gotras have only one pravara, some have three and some have five pravaras The gotras
may be different, but one or more pravaras may be common to two gotras A man can-
not marry a girl whose father's pravara is the same as his. Pravaras are those sages
whose names are invoked by the sacrificer at the time of selecting priests at a sacrifice or
P. 118 (text).

128 VYAVAHĀRAMAYŪKHA [ S. IV 5. 30-33
[ M p. 62 ll. 1-10
those who are dvyāmuṣyāyaṇas such as those adopted or bought
cannot marry in both gotras just as in the case of Śauṅga-Śaiśiri
which declares that the dvyāmuṣyāyaṇa has both gotras and the verse
of Manu (9 142) which declares (in the case of the adopted son) the cessa-
tion of the gotra of the natural father, this conflict can be removed only
by (postulating) a distinction (of dattaka) into kevala (dattaka) and dvyā-
muṣyāyaṇa For these (three) reasons the (existence of the) kevaladattaka
also is established
It is for this reason (i e on account of the distinction between kevala-
dattaka and dvyāmuṣyāyaṇa) that after declaring on the strength of the
text of Manu the cessation of sapiṇḍa relationship between Arjuna the
son of Kuntī who was given as an adopted daughter to Kuntibhoja by Śūra
and Subhadrā a daughter of Vasudeva son of Śūra and after declaring that
this passage of Gautama (4 3) is merely concerned with the prohibition
(in marriage) of even a girl born in the line of (santāna) the pro-
creator and after raising the doubt that Subhadrā was not fit to be
married by Arjuna Bhaṭṭa Someśvara puts forward the explanation
(refuting the doubt) viz the assumption of a distant relationship, which
(explanation) was offered in the Vārtika¹ (viz the Tantravārtika of
they are, according to others, the ancestors of the founders of each gotra Śaiśiris are a
sub-division of the Katas, who are a branch of the Viśvāmitra gotra while the Śauṅgas
are a subdivision of the Bhāradvāja gotra. On the wife of a Śauṅga a Śaiśiri begot a
son by niyoga. The descendants of the son so begotten came to be called Śauṅga-Śaiśiris
and they could not marry in both gotras viz. Bhāradvāja and Viśvāmitra. Vide notes
to V M p. 100 The argument of Nīlakaṇṭha is that the conflict between the verse from
the pravarādhyāya and that of Manu leads to the inference that they refer to distinct
kinds of dattaka (i. e. there is a viṣayavyavasthā) viz. dvyāmuṣyāyaṇa and kevala.
1 Mandlik (p. 63) in his translation makes a mess of this somewhat difficult and invol-
ved passage. He had apparently no clue to what the Vārtika was and what Someśvara said
His translation by an explanation founded on a Vārtika text that there was no relationship
(between Arjuna and Subhadrā) after the adoption is absurd. Mr Gharpure (p 86)
follows him almost word for word The Vārtika is the Tantravārtika of Kumārila and
Bhaṭṭa Someśvara is the author of a learned commentary on the Tantravārtika, called
Nyāyasudhā (or Rāṇaka) The Tantravārtika enters into an elaborate discussion (pp
128-133) about the lapses from good conduct attributed to ancient sages and epic
heroes The charge brought against Vāsudeva (Kṛṣṇa) and Arjuna is that they
married their own maternal uncles' daughters, Rukmiṇī and Subhadrā respectively
which is forbidden From ancient times there was a conflict of views as to marrying one's
maternal uncle's daughter Baudhāyana (Dh. S I 1 17-21) says that this was
practised by the southerners and condemns it himself. But some southern writers like
Mādhava and the author of the Smṛticandrikā defend the practice Śūra had a son
Vasudeva and a daughter Pṛthā. He gave Pṛthā in adoption to his paternal aunt son
Kuntibhoja (Mahābhārat Ādi 111 13) The son of Pṛthā (or Kuntī) was Arjuna
Subhadrā is spoken of as the daughter of Vasudeva and sister of Vasudeva (Kṛṣṇa)
Vide Ādiparva 219 17-18. Arjuna married Subhadrā, who was thus his maternal uncle's
daughter if the texts are to be taken literally But a maternal uncle's daughter is a very

$\left.\begin{matrix} S. IV. 5. 32
M. p. 63 ll 20 35 \end{matrix} \right]$ ADOPTION 129
Kumārila) As to what a writer says 'Someśvara on the strength of Gau-
tama's text declared that Kuntī had sapiṇḍa relationship for seven genera-
tions in the family of S'ūra also', that remark arises from not (carefully)
studying the work (of Someśvara). For, he (Someśvara), having first refer-
red to the cessation of sapiṇḍa relationship (on the strength of Manu),
spoke of the text of Gautama as meant to prohibit (marriage) in the family
of the progenitor, but not as conveying that there was sapiṇḍa relationship
(of the adopted for seven generations in the family of birth)
Thus the two kinds (of adopted sons), kevala and dvyāmuṣyāyaṇa,
being established, the condition also 'this belongs to us both,' is established
(in the case of the dvyāmuṣyāyana), since it has an evident (visible)
purpose, viz. that the adopter may know that he (the son taken) is the son of
two fathers
*And the simple adopted son (kevala dattaka) has sapiṇḍa relation-
ship for seven generations in the family of the adoptive father (pālaka-
pitṛ) and for five generations in the (adoptive) mother's family

near sapiṇḍa (being third from the common ancestor) Vide Yāj I 52--53 The
answer of the Tantravārtika is that Subhadrā was not a real sister of Vāsudeva, but only
his cousin, such as a maternal aunt's daughter In popular language such a female
cousin is called sister and Someśvara notes that among the Lāṭas (people of southern
Gujarat) that was the case in his day This assumption of a distant relationship in
Subhadrā to Vāsudeva (sambandha--vyavadhāna-kalpanā) is the explanation that
Kumārila offers as against the charge that Arjuna married his maternal uncle's
(Vasudeva's) daughter Not being the real sister of Vāsudeva, she was not the
daughter of Vasudeva Some urged that Kuntī being given in adoption, there was cessation
of her relationship with the family of her natural father S'ūra and his son Vasudeva
according to Manu (9 142) and so her son Arjuna could very well marry Subhadrā even
if she was the real sister of Vāsudeva and the daughter of Vasudeva and there was no
necessity to assume that she was a cousin only This view of some quoted by Someśvara is
referred to by Nīl in the words 'after declaring the cessation son of S'ūra'. This view is
met by the argument that, though Pṛthā was adopted by Kuntībhoja, still there is an express
prohibition in the text of Gautama (4 3) about marrying one within seven degrees in the line
of the procreator (S'ūra, the natural father of Pṛthā here) and so if Subhadrā were really
the daughter of Vasudeva, she would be bījasantānajā with reference to Pṛthā's son and
would be ineligible for marriage (apariṇeyā) with Arjuna All this is compressed in the words
'after declaring and after raising the doubt by Arjuna' All this discussion serves
the purpose of establishing that there are two kinds of dattaka, kevala and dvyāmuṣyāyana.
Pṛthā was kevala dattaka and so it could be urged that there was cessation of sapiṇḍa rela-
tionship The words of Gautama simply prohibit in express terms a marriage with one born
within certain degrees from the progenitor (but they do not positively say anything about
sapiṇḍa relationship) Someśvara himself held the view that Subhadrā was only a cousin
of Vāsudeva (i e he assumed with Kumārila that there was sambandhavyavadhāna) and
so Arjuna was not guilty of marrying a maternal uncle's daughter Vide notes to V M.
pp 199--204 where the relevant passages from Kumārila and Someśvara are quoted,

• P. 119 (text).
  V. M. 17

130 VYAVAHĀRAMAYŪKHA [ S. IV 5. 33-34.
[ M. p. 62 l. 35-p. 63 l. 22
As regards what Vṛddha¹-Gautama says —
Those sons, viz. the dattaka the son purchased and the like that were
made so with the adopter's gotra become members of the gotra (of the
adopter) by the rites (of adoption) but sapiṇḍa relationship (between the
adopter and the adopted) is not prescribed (as arising from the rites)
and as to what Bṛhan—Manu says —
Sons given purchased and the like have sapiṇḍa relationship with
their natural father to the fifth and seventh² degrees but they take the
gotra of their adoptive father
as regards also what Nārada says —
Sons (secondary) are brought up in the respective gotras (of the
adoptive fathers) just like (legitimate) sons for religious purposes
they are intended to participate in the share (of property) and in the
funeral cake only³
all these texts are without any authority⁴ (i e they are spurious or apo-
cryphal) Even if they be authoritative, they serve the purpose of propound-
ing that the dvyāmuṣyāyaṇa has no sapiṇḍa relationship for seven gene-
rations in the family of the adoptive father since as regards the simple adop-
ted son (kevala-dattaka) sapiṇḍa relationship for seven generations in the
adoptive father's family has been declared by the text of Gautama (Dh
S 4 3) cited above and since by the text of Manu (9 142) the cessation
of sapiṇḍa relationship in the natural father's family has been declared
As regards the dictum of a respectable author in the Sāpiṇḍyanirṇaya
a boy (given in adoption

S. IV. 5. 34-36 ]
M. p. 63 ll. 22-37 ] ADOPTION 131
one (adopted), whose (upanayana and other) saṁskāras are performed with
the gotra of the adoptive father has sapiṇḍa relationship only with the adoptive
father and the rest for seven and five generations', we do not know on what
authority (or source) this dictum is based$^1$ And moreover, if the adoptive
father has not the position of a pitṛ (father) on account of the absence of
being the procreator and being the initiator into Vedic study (in the case of
an adopted son whose upanayana was performed in the natural family),
how is it that (it is said that) the dattaka has sapiṇḍa relationship (with
the adoptive father) for three generations or how is it that he is to perform
the śrāddhas of the adoptive father and the rest? Nor can it be said that
being the pitṛ (in the primary sense) is necessarily co-existent with (or in-
variably concomitant with) sapiṇḍa relationship$^2$, so that when there is ab-
sence of pitṛtva (in the primary sense of being the procreator or the initia-
tor into Vedic study), there would result the absence of sapiṇḍa relation-
ship. As a matter of fact the sapiṇḍa relationship (of the adopted boy)
with the adopter and the rest has already been declared by such texts of
Gautama and the rest as 'beyond the seventh out of the father's relations'
(Gautama Dh S 4 3) This is the direction (i e this will suffice to
elucidate this topic)$^3$
Now (begin) the rites of the gift and acceptance of a son All (men)
that have several sons have the power to give (in adoption) only that son

1. The Sāpiṇḍyanirṇaya is a work of Śrīdharabhaṭṭa, a paternal grand-uncle of Nīla-
   kaṇṭha One ms. of it in the Deccan College collection was copied in 1591 A D At the end
   of another ms (No 200 of 1882-83) it is called Sāpiṇḍya-dīpikā also On account of this
   relationship Nīlakaṇṭha uses the plural and the word 'mānya' (worthy of respect) with
   reference to the author. Vide notes to V M p 206 for quotations from the work.
   2 This sentence is quoted in 36 Bom 339 at p 350.
2. In the words from 'if the adoptive father' 'Nīl argues against the dictum of the
   Sāpiṇḍyanirṇaya The argument of the latter work is that a man is called a pitā either be-
   cause he procreates the son or because he performs his upanayana (which is as if a second
   birth) If a boy is adopted after upanayana the adoptive father cannot claim to be a pitṛ
   of that boy in any one of these two senses, then Nīl asks, why should the Sāpiṇḍyanirṇaya
   yet say that there is sapiṇḍa relationship for three generations? The Sāpiṇḍyanirṇaya might
   reply that where the adoption takes place after upanayana, there is pitṛtva in both ways in
   the natural father and so there is sāpiṇḍya with the natural father for seven generations and
   with the adoptive father only for three, as a piṇḍa is to be offered only to three paternal
   ancestors Nīl replies by saying that we cannot assert as an invariable proposition that where
   there is pitṛtva there is also sāpiṇḍya That proposition fails in the case of the kevala dattaka,
   who, according to Manu, has no sāpiṇḍya with the natural father Nīl further says that
   conceding for argument's sake that when a boy is adopted after upanayana is performed in
   the family of birth, the adopter is not his pitā in any of the two ways mentioned above, it
   would not necessarily follow that there is no sāpiṇḍya between them, since as shown above
   pitṛtva and sāpiṇḍya are not invariably co existent He says that on adoption there is the
   same sapiṇḍa relationship between the adopter and the adoptee, whether it takes place before
   or after upanayana is performed in the natural family.

who is not the eldest ¹ while as regards accepting (a son) all to whom either
no son was born or whose son is dead (have power) women whose hus-
bands are alive (are entitled to adopt) with the permission of their hus-
bands, failing husbands (women can adopt) with the permission of the
(husband's) father and the rest ² In the case of s'ūdras a daughter's son
or a sister's son must be taken in adoption and not any one else, while by
men of other classes a near sapiṇḍa (should be adopted) failing him a
remote sapiṇḍa (may be adopted) but not one belonging to another caste
The donor on the day of adoption having recalled the time (the year
month tithi &c) and having made the saṅkalpa (the religious and solemn
declaration) I shall make a gift of my son for bringing about a cessation of
those various consequences that are due to the relationship of father and son
and the like mutually subsisting between me and others (on the one hand)
and this son (on the other) and for the creation of those various conse-
quences due to the various mutual relationships such as that of father and
son and the like between the adopter and others (of his family on the one
hand) and this boy (on the other) *should perform the worship of Gaṇes'a
svastivācana the worship of the Mātṛs and Vṛddhis'rāddha ³ The adopter
having observed a fast on the day previous to the day (fixed) for adoption
having summoned his relatives on the next day (after the fast) having in-
formed the ruler of the (intended) adoption of a son having recalled the time
(year &c.) having made the saṅkalpa I shall adopt a son for bringing
about the cessation of the various relationships of father and son and the like
mutually subsisting between this boy who is going to be taken (in adoption)
and his natural father and others and for⁴ the creation of those various
consequences (or obligations) that are due to the various mutual relation-
ships of father and son and the like between us and ours (on the one hand
and this boy on the other) and having performed with (an appropriate)
saṅkalpa (in each case) the worship of Gaṇes'a svastivācana, the worship
of the Mātṛs Vṛddhis'rāddha the choosing of an ācārya (priest for the cere-
mony) and the honouring of the ācārya with ear rings ring two garments a
turban madhuparka⁵ and the rest should feast three brāhmaṇas and his re-
latives Then the ācārya having made the saṅkalpa I shall perform my
duties (in this rite) having performed the rites commencing with the mark
ing out of lines on the altar and ending with the consecration of the fire
(on the altar), having repeated (the texts) up to (including) cakṣuṣī ājyena
1 In Vyas Chimanlal v Vyas Ramchandra 21 Bom 867 at p. 877 Stoke translation
all having sons may give in adoption on who is not the eldest is preferred to Mandlik's p.63
2. This passage corroborates the criticism contained in p 118n.1 of the decision in Bhima
Lal v Gurunathgouda 35 Bom L. R 200 (1 C.)
3. For svastivācana and the mātṛs vide above p 56n1 and p 48 The vṛddhis'rāddha is
performed when there is an addition to the family or on a joyful occasion (like marriage)
4 This clause is quoted in Kalgauda v Somappa 11 Bom. L. R. 797 at p. 812.
5. Madhuparka was an offering of honey and curds made to an ācārya after he is chosen
for a rite or to an honoured guest such as a king son-in-law father in law maternal or pater
nal uncle &c
P 121 (text)

S IV 5 39- IV 6.1 ] ADOPTION 133
M. p. 64 l. 33 p 65 l. 32 ]
'at the time of placing fuel-sticks on the fire, and (having made the saṅkalpa)
'I shall offer to Agni who is the principal deity in this rite, to Vāyu, the
Sun, Prajāpati one oblation each, one oblation again to fire and six oblations
of boiled rice to Sūryāsāvitrī, and the rest to (Agni) Sviṣṭakṛt,' he should
perform (all the rites) ending with ājyotpavana.¹ Then the adopter having
gone near the giver should make a request (through the priest) 'give your
son', while the giver, after reciting the five ṛks 'ye yajñena' (Rg X 62.
1-5), recalling the time &c and having repeated the words beginning with
'between me and others' (vide above p 132) and ending with 'for the creation
&c' should declare 'I make a gift to you of this son who is decked with orna-
ments according to my ability'. Of the five verses (beginning with the
words) 'ye yajñena', Nābhānediṣṭha the son of Mānava, all the gods, Jagatī
(are respectively the seer, the deity and the metre) and they are employed
in the rite of giving a son The adopter, having accepted (the boy) with
the words 'devasya tvā', having recited the psalm to Kāma² as laid down in
his own śākhā (recension of the Veda), having muttered the ṛk 'aṅgād-
aṅgāt', having smelt the head of the boy, having decked him with clothes
and the like, should take him inside the house to the accompaniment of
auspicious music Then the ācārya, having performed the rites beginning
with the ājyasthāpana and ending with ājyabhāga ³, and having offered
oblations of clarified butter itself to the accompaniment of the vyāhṛtis se-
parately and together ⁴, should then offer boiled rice* 'Yastvā hṛdā' (is
the mantra), Vasuśrut (is the seer), Agni (is the deity), Triṣṭup (is
the metre), its employment is in the homa with boiled rice that is the prin-
cipal (rite) in the adoption of a son (After repeating) 'Yas-tvā hṛdā'
(Rg V 4 10), the offering should be surrendered with the words 'this is
for Agni, (it is) not mine' (now) Of (the mantra) 'tubhyamagre',
Sūryā-sāvitrī, Sūryā-sāvitrī, Anuṣṭup (are respectively the seer, the deity and
the metre) 'Tubhyamagre' (Rg. X 85 38), 'this is for Sūryā-sāvitrī, it
is not mine' Of the five (mantras) 'somo dadat' (Rg X. 85 41-45)
Sūryā-sāvitrī, Sūrya-sāvitrī and Anuṣṭup (are the seer, deity and metre)
The employment is as before, 'Somo dadat' Then he should finish (the
homa to Agni) Sviṣṭakṛt. This is the (whole) rite (of adoption)
We return to the subject in hand. Kātyāyana states a special rule
about the division of debts:
1 Ājyotpavana consists in purifying clarified butter by passing two kuśa blades
through it
2 Vide Āśvalāyana-s'rauta 5 13 and Āp. s'r s 14 11 2 for slightly differing kāmastutis.
3. Ājyabhāgas are two offerings made to Agni and Soma respectively to the north-east
and south-east of the āhavanīya fire.
4 The vyāhṛtis are the mystic syllables bhūḥ, bhuvaḥ and svaḥ The offerings will be
accompanied with these syllables as follows 'Om bhūḥ svāhā, om bhuvaḥ svāhā, om svaḥ
svāhā, om bhūrbhuvaḥ-svaḥ svāhā.'

• P. 122 (text).

134 VYAVAHARAMAYUKHA [ B. IV c 1-3
M. p. 65 l. 32-p. 66 l.23
The debt of the father the debt (incurred) in relation to (i. e. to
pay off) the father's debt one's own debt and what is incurred by oneself
these debts so incurred should always be cleared (provided for or paid
off) on a partition with one's relatives (brothers &c.)¹
Pitṛyaṛṇasambaddham means what is incurred for paying off the
father's debt. Ātmīyam (one's own debt) means what is incurred by
another for the maintenance and the like of one's family.
The same author (says)
A debt contracted by a brother a paternal uncle or mother for the
sake of the family should all be discharged by the cosharers of the (ances-
tral or joint) estate at the time of partition.
As regards also the debt that is less than the riktha (ancestral or
joint estate) the same author (Kātyāyana) says
Having paid the debts and what is promised (lit. bestowed) through
affection, one should divide the rest.²
Pradattam means promised. Nārada (p. 197 v. 32) says

• What remains after (providing for) the gifts (promised) by the father
  and after paying off paternal debts should be divided by the brothers
  otherwise the father would remain debtor.
  Pitṛdāya (in this verse) means what is promised by the father. The
  same author (Nārada) says
• What has been given (or promised) for religious purposes and what is
  donated through affection by the father and the debt incurred by him-
  self—these and the visible estate should be divided. There is to be no
  (other) payment out of the paternal estate (except the above at the time
  of partition).³
  The meaning is whatever is given, that is whatever is promised to be
  given for religious purposes and out of affection, whatever (debt) is con-
  tracted by the father himself (thus is the meaning of svena yojitam) such
  debts and the visible wealth should be divided there is to be no payment
  out of the paternal estate of anything beyond these debts (and obligations).
  Even when there is a suspicion of some (paternal wealth) being not visible
  (i. e. not brought forward for division) the same author (Nārada) says
  Visible wealth (viz.) houses and fields quadrupeds (and the like),
  should be divided. If there is a suspicion of (there being) concealed (joint)
  wealth an ordeal is prescribed in such a case. Household utensils, beasts

1. This verse is quoted in Ponnappa Pillai v Pappuvayyangar 4 Mad. 1 (F. B.) at p. 40.
2. This is quoted in Ponnappa Pillai v Pappuvayyangar 4 Mad. 1 at p. 40.
3. This verse is variously interpreted. Vide notes to V. 31 p. 200. Aparārka and Sm.
   C. explain svena yojitam as meaning debt which the father enjoined his son or sons
   to pay.
   P. 123 (text).

$\left.\begin{matrix} S. IV. 6.3 -IV. 7 2
M. p. 66 l. 24-p 67 l 5 \end{matrix}\right]$ PARTITION 135
of burden, milch cattle, ornaments and slaves, being visible, are divided
Manu has prescribed the kośa ordeal as regards concealed (joint wealth)$^1$
Karmiṇaḥ means 'slaves and the like' Hence the very same
author (Nārada) has laid down in the section on ordeals the restriction that
kośa alone is (the ordeal to be employed) as regards this matter
At all times when confidence has to be secured in case of suspicion
(that joint estate might have been concealed) at the time of partition
among cosharers and when there are several persons on whom the burden
of proof lies (in various ways) kośa (ordeal) alone should be administered
Now (begins the treatment of) impartible property.
Manu (9 206) says

• Wealth, however, acquired through learning by a man, becomes his
  own (exclusive) wealth, and so are gifts from friends, gifts received on
  marriage or at the time of offering madhuparka.
  Vyāsa says
  Whatever is acquired through learning or valour and whatever is
  saudāyika (a gift from affectionate kinsmen), these belong (exclusively)
  to him (who acquires them) They should not be sought for (i e
  claimed) by his co-sharers at the time of partition (of joint estate)
  Saudāyika will be explained (later on) And this (wealth) should
  be understood (as not liable to partition) when it is acquired without
  detriment to the paternal wealth
  Thus also Yājñavalkya (II 118--119)$^2$ says

1. These verses and the next are ascribed to Kātyāyana in Aparārka, Sm. C. and other
   works
   2 The verses of Yāj and the sūtra of Śaṅkha are quoted in Visalatchi v. Annasami 5
   Mad. H. C R 150 at p 157 and the Mayūkha is referred to at p 159 and it was held that the
   rule does not extend to property held by a title derived from the joint family and that the rule
   was intended to apply strictly to hereditary property of which the members of the family had
   been violently or wrongfully dispossessed or adversely kept out of possession for a long time.
   Vide also Bajaba v Trimbak 34 Bom 106 at p 110 for the text of Śaṅkha The texts on
   vidyādhana (gains of science or learning) have been discussed in numerous cases of which the
   following may be referred to Cholakonda Alsani v Chalakonda Ratnachalam 2 Mad H C
   R 56, Bai Mancha v Narotamdas 6 Bom H C R p 1, Pauliem v Pauliem L R 4 I A
   109 (=1 Mad 252), Krishnaji v Moro 15 Bom 32, Vasantrao v Anandrao 6 Bom L.R 925,
   Metharam v Rewachand 45 I A 41=45 Cal 666 (which examines most of the previous cases),
   Gokalchand v Hukamchand 48 I A 162 (=2 Lahore 40) In Lakshman v Jamnabai I L
   R 6 Bom. 225 it was said at p 243 'when they (texts) speak of gains of science which has
   been imparted at the family expense they intend the special branch of science which is the
   immediate source of the gains and not the elementary education which is the necessary step-
   ping stone to the acquisition of all science' In 48 I A 162 at p 173 it was said 'From
   maintenance out of family funds during the period of education the basis of partibility chan-
   ged to the receipt of the education itself at the family expense and then education generally
   was narrowed down to specialised education which is now the basis No corresponding
   change is however to be traced upon the question what is science in the sense in which the
   ext of the Mitāksharā uses the term' All doubts and difficulties as to gains of learning be-
   ing partible or not have been removed by Act XXX of 1930 which makes all gains of learn-
   ng the self-acquisitions of the acquirer.

• P 124 (text).