Answer 2nd.-It does confer such right, because the proprietors of any possessions may dispose of them as they please.

A reference was at the same time made by the Court to the Judge of the city of Dacca, forwarding a copy of the engagement originally made by Deb-naraen Roy, and directing that copy to be compared with the original, as entered in the records of the registry, and the oral evidence of as many of the witnesses to it as might be living to be taken and transmitted to the Court. It was also desired, that the answers of those witnesses to any question proposed by Goluknaraen should be included in the official returns.

On the receipt of these a definitive judgment was given on the 10th of July 1824, reciting that there existed nothing like sufficient proof to establish the fact of permission to adopt having been given to the appellant by her husband. Therefore, and for the reasons stated in the decree of the second Judge, it was ordered that the decision of the Provincial Court of Dacca should be reversed, and judgment be passed in favor of the appellant, with costs.-13th of July 1824, S. D. A. Rrep. Vol. III. pp. 387-390.

SECTION IV.-WHO CAN AND WHO CANNOT BE ADOPTED.

526. A boy who is of the same caste (a,) Vyavastha who is not the only son of his father (i,) and not disqualified (u,) or a prohibited relation (e,) is eligible for adoption.*

(a) of the same caste'-that is, being of the same special caste as the adopter.—It is not sufficient that the adopted be of the same general caste with the adopter, that is, one of the four general castes or classes (the Brahman, Kshatriya, Voishya, and Shudra;) but he and the adopter must be of the same special caste which is derived from any one (or two) of the general castes: then indeed is the adopted of the same caste with the adopter, and his adoption valid.† Al

See ante, p. 821. Vide Macn. H. L. Vol. I. pp. 66, 67; Str. H. L. Vol. I. p. 73;D. Mím. Sect. II. § 21; Sect. V. § 16 et seq. D. Ch. Sect. I, § 13, 15, 16; Sect II. § 8. † See ante, p. 821 ; D. Mím. Sect. II, § 21; D. Ch. Sect. I. § 13, 15, 16; Macu. Vol. I. pp. 73, 75.

though all of the present tribes are not recognised in the law, yet as they are based upon custom, they must a fortiori be held as recognised by the law also, custom being the transcendent law and superseding the general maxims of the law.*-Consequently, if the adopter be of any derivative caste formed and founded upon the custom of his country, the son to be adopted by him should also be of the same identical caste, and not of any other caste, (though such latter caste may have been derived from the same general caste.†)

(i) 'Not the only son'-that is, the boy to be adopted is to be one of many sons of his father, because, the father of an only son is prohibited to give his son in adoption, and because, a father who has several sons being alone allowed to give a son of his for adoption, a father of two sons is also prohibited to make a gift of one of his sons.

But,

Vyavastha

527. Although a father having two sons is prohibited to give one son in adoption, yet the adoption of a boy having an only brother is seen in practice; and it is not declared invalid by the courts of justice. §

By parity of reasoning,

Vyavastha

528. The younger of two sons, who has not his elder brother, but has his son, in existence, may also be adopted.¶

REASON.

As in that case, he is not without a brother, his brother's son supplying the place of the brother deceased, in consequence of the term 'son' meaning issue as far as the great grandson in the male line.

Vyavastha

529. As an only son, so also an eldest son must not be given in adoption, although several sons exist. (See, however, the effects of adoption.)

An only son must not be given (or accepted.) For VASHISHTHA ordains: Let no man give or accept an only son.' Nor, though a

See ante, p. 314.

See ante, pp. 822,823.

+ See the section treating of the different castes.

§ See ante, p. 823. Macn. H. L. Vol. I. pp. 66,

67, 77;-Str. H. L. Vol. I. pp. 73, 75.

Macn. H. L. Vol. I. p. 77. Ante, p. 823, Note.

numerous progeny exist, should an eldest son be given: for he chiefly fulfils the office of a son; as is shown by the text:

66

By the eldest son, as soon as born, a man becomes the father of male issue."Mitákshará, Ch. I. Sect. XI. § 11 & 12, p. 310.

REMARK.

But according to the modern lawyers, a brotherless boy, be he the eldest, middle, or youngest son of his father, may be adopted, even though he have no brother's son in existence; inasmuch as in the following and other texts: "An only son, let no one give or accept; for he is to continue the line of his ancestors," &c., the gift of an only son is prohibited in the apprehension of extinction of the giver's race, and discontinuance of presentation of the oblations of food and libations of water; and the receiver too is prohibited to accept such son because he ought not to do such injury to the giver;-so this cannot be construed to invalidate the adoption; all that can be concluded from such prohibition is, that the giver as well as the receiver would in so doing commit a sinful act. In like manner, the prohibition against giving an eldest son in adoption being grounded on the deprivation of the benefit derivable from the rites performed by the son, the gift cannot be void, but the giver would commit a greater sin in giving his eldest son in adoption,* as said in the Dattaka-nirṇaya.

There is, however, no prohibition against adopting an only son in the Dwyámushyayana form; on the contrary, his adoption in that form is recognised in the law itself.-See the section treating of the Dwyámushyayana adoption.

(u) Not disqualified'—that is, the boy to be adopted must be exempt from any disqualification which might prevent him from fulfiling the purpose of adoption.t

An eldest son is forbidden to be given in adoption; but some authorities make exception to this.-Str. H. L. Vol. II. p. 81. See Macn, H. L. Vol. I. pp. 67 &. 77; and ante, pp. 821-824.

since,

Such are, in this respect, the restrictions inculcated, but not always enforced; as in other instances, so with regard to both these prohibitions respecting an eldest and an only son, where they most strictly apply, they are directory only; and an adeption of either, however blamable in the giver, would nevertheless, to every legal purpose, be good; according to the maxim of the civil law, prevailing perhaps in no code more than in that of the Hindus, factum valet quod fieri non debuit-Str. H. L. Vol. I. p. 75.

It is an obvious inference, that the person selected should be exempt from any disqualification, which might prevent him from fulfiling the purpose of the adoption.Sutherland's Synopsis, Head second, § 3.

(e) Not a prohibited relation,' that is,-

Vyavastha

530. The boy with whose mother the adopter was not prohibited to contract a marriage, or to have carnal

knowledge of, is eligible for adoption.*

"Having taken him by both hands, with the recitation of the prayer, commencing,- Devasya-twá,' &c.; having inaudibly repeated the mystical invocation-' Angádangát' &c.t; having kissed the for head of the child; having adorned with clothes, and so forth, the boy bearing the reflection of a son."-D. Ch. Sect, II, § 7. D. Mim. Sect. V § 15.

"Reflection of a son.]"-The resemblance of a son, or

Authority. in other words, the capability to have been begotten

by the adopter, through appointment, and so forth.-D. Ch. Sect. I1,§8.

"The reflection of a son.]”—The resemblance of a son,-and that is, the capability to have sprung from. (the adopter) himself, through an appointment (to raise issue on another's wife,) and so forth. In the same manner as in the text, of Grihya-parishishta on marriage, prohibited connection, in the case of marriage, is excepted; so, in the case in question, (one, who, if begotten by the adopter, would have been the son of) a prohibited connection, must be excepted; in other words, a person is to be adopted, of whose mother the adopter might have carnal knowledge.-Now, prohibited connection is the unfitness (of the son proposed to be adopted) to have been begotten by the individual himself, through appointment (to raise issue on the wife of another.) The mutual relation between a couple, being analogous to the

* That the party adopted should neither be the only nor the eldest son, (but see ante, p. 822,) nor an elder relation, such as the paternal or the maternal uncle; that he should be of the same tribe as the adopting party; that he should not be the son of one whom the adopter could not have married such as sister's son or daughter's son. This last rule, however, applies only to the three superior classes, and does not extend to Shudras.-Macn. H. L. Vol. I. pp. 66,67. See Str. H. L. Vol. I p. 71, et seque.

The first and fundamental principal is, that the person proposed to be adopted be one, who, by a legal marriage with his mother, might have been the legitimate son of the adopter. By the operation of this rule, a sister's son, and the offspring of other females whom the adopter could not have espoused, and one of a different class, are excluded from adoption. In the present age, marriage with one unequal in class is prohibited.-Sutherland's Synopsis, Head Second. § 1. ↑ See post. p. 869, et seque

one being the father or mother of the other, connection is forbidden; as for instance,-the daughter of the wife's sister, and the sister of the paternal uncle's wife. The meaning of the text is this, where the relation of the couple, that is, of the bride and bridegroom, bears analogy to that of father or mother: if the bridegroom be, as it were father of the bride, or the bride stand in the light of mother to the bridegroom, such a marriage is a prohibited connection.-D. Mím. Sec. V § 16, 20, 18 19.

Vyavastha

531. Accordingly, the brother, paternal and maternal uncles, daughter's son, and sister's son,* are excluded. The adoption of a brother's son by a sister or a sister's son by a brother could not also take place.-Ibid. Sect. II § 34 and Sect. V § 17.

REASON.

Authority.

For, they bear not resemblance to a son.-Ibid.

The above rule is not, however,applicable to the Shudras, because, having relation solely to the regenerated classes, it excludes the Shudras, and because, in the text subjoined, the adoption of a sister's son or daughter's son by a Shúdra is declared to be lawful. Therefore,-

Vyavastha

532. A sister's son or a daughter's son may be adopted by a Shúdra.†

“Of Kshatriyas, in their own class positively and

Authority. (on default of a sapinda, a kinsman) even in the

general family, following the same primitive spiritual guide (Guru :) of Voishyas, from amongst those of the Voishya class (Toishyajátishu :) of Shúdras, from amongst those of the Shúdra class. Of all, and the tribes likewise, (in their own) classes only; and not otherwise. But a daughter's son, and the sister's son, are affiliated by Shúdras. For the three superior tribes, a sister's son is nowhere (mentioned as) a son." SHOUNAKA.-D. Mim. Sect. II. §74;-and D. Ch. Sect. I. § 17. On default of a sapinda, a kinsman, " and even in the general family following the same primitive spiritual guide." Since there are no distinct and peculiar general families of the (primeval) Kshatriyas, the

The expression sister's son is inclusive of the son of a brother also. Hence this meaning is deduced, that a brother's son must not be adopted by a sister.-D. Mín. Sect. II § 33.

† See Macn. H. L. Vol. I, page. 67; Sutherland's Synopsis, Head Second § 1. and Str. H. L. Vol. 1, pp. 71, 72,