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effect that the estate retains its original quality of impartibility, the passing of Regulation xxv. of 1802 and the issue of a sanad notwithstanding.

In the course of this judgment it was pointed out that the case of the Nuzvid Zamīndārī, which is partible, was quite different, inasmuch as the sanad of 1802 'put it on the same footing with ordinary estates,' and it had been decided that the present Nuzvid estate 'could not be identified with any estate or title existing prior' thereto.

On the other hand, the case of the estate of Hunsapore was declared to be also an authority for holding that a mode of acquisition which constitutes a property as self-acquired in the hands of a member of an undivided family, and thereby subjects it to rules or disposition different from those applicable to ancestral property, does not thereby destroy its character of impartibility.'

The judgments of the Madras High Court in the same Shivagunga case show that whilst the majority of the Court were, for various reasons, in favour of the impartibility of the estate in question, Innes, J., not only held Shivagunga to be partible, but declared with regard to Zamindāris in general: 'It may be the policy of Government to keep such estates together, but there is no law against breaking them up.' He also declared that every estate is partible' in a sense, however long the custom of impartibility may have existed. Judging from his remarks as a whole, I should suppose that Mr. Innes had come right round to my opinion. And yet, at the beginning of

his judgment, he thought it necessary to publish a tirade against my peculiar views!

Mayne's Hindu Law, §§ 49, 50, shows that, according to recent decisions, it is quite possible for a custom of impartibility to be discontinued by a Family holding a Zamindari. Also, that a Family may have a special usage of its own, and arrange the

succession to an estate accordingly.

And see my remarks on the Sivagiri case, below, in the second chapter of Part III.

CHAPTER X.

PERSONS TO BE ADOPTED.

My eleventh False Principle is that: 'One with whose mother the adopter could not legally have married must not be adopted.'

In my View I have strongly denounced this fanciful doctrine, as being unauthorised and opposed to general usage in South India. And Mr. Innes (at p. 80) is fain to admit that 'fuller inquiry may justify a departure from the rule,' which, however, 'did not originate with the Madras High Court.'

As an aid to fuller inquiry I would venture to recommend a perusal of the very short section on adoption to be found at the very end of the Gentoo Code (xxi. 9). The first paragraph runs as follows, namely: 'He who is desirous to adopt a child must inform the Magistrate thereof, and shall perform the Yajna, and shall give gold and rice to the father of the child whom he would adopt; then, supposing the child not to have had the ears bored, or to have received the Brahminical thread, or to have been married in his father's house, and not to be five years old, if the father will give up such a child, or if the mother gives him up by order of the father, and there are other brothers of that child, such a child shall be

adopted.' The second paragraph authorises a woman to adopt with her husband's order, though Pachesputtee Misr says she may not; and the third permits a Çudra to adopt, upon procuring a Yajna to be performed by a Brahman.

Nothing more had the eleven Pandits to say about adoption. And it seems to be tolerably certain that they had never troubled their heads about, if indeed they had ever heard of, the (supposed) theo. retical developments' of the Dattaka Mīmāmsā, and other applauded treatises on adoption.

But both Mr. Mandlik and Professor Jolly have exposed the absurdity of these developments. And perhaps nothing can be less satisfactory as legal authorities than the numerous extracts from speculative treatises on adoption that Professor Jolly has gathered together in his general note to his Lecture VII.

I have shown in the chapter on customs that in recent cases the Madras High Court has permitted Nambūdri Brahmans to adopt a sister's son, and Brahmans to adopt either a sister's or a daughter's son. That it will continue to allow Brahmans to adopt a daughter's son there can be but little doubt. For, of all persons in the world, one would suppose this to be the most proper for a Brahman to adopt, seeing that some of the old Smrti writers expressly state that a daughter's son is all one with a son's son. Thus, Vishnu (XV. 47) says: No difference is made in this world between the son of a son and the son of a daughter; for even a daughter's son works the salvation of a childless man, just like a

son's son.' And Manu (IX. 133 and 139) insists, in apparently the same words, upon the identity of the two. The theory that it is wrong for a man to adopt as a son one whom he may lawfully 'appoint' to be such, would seem to be as ridiculous as it is unnatural.

Whatever rules may be imposed by the High Court, after fuller inquiry, upon Brahmans about to adopt, I sincerely trust that none at all will be imposed on the unfortunate non-Brahman, who, as we have seen, is denied by Manu even the power of sinning.

In the case reported at I. L. R., vi., Madras, 20, Innes and Muttusāmi Āyyar, JJ., followed an old case in deciding that a (pretended) Kṣatriya may validly adopt without legal ceremonies. But the latter judge expressed his hesitation in so deciding.

Why not get over the difficulty by holding that adoption may be made, at the parties' choice, either of a religious or of a secular character, the legal incidents of the act to be in either case the same?

There can be but little doubt, I think, that at the present day adoption is practised by all or most of the tribes and castes of Madras without reference to religious ideas, and solely with the object of procuring successors; and that in performing it the contracting parties consult nothing but reciprocal convenience, though they may look in many cases to usage for guidance as to the appropriate forms to be observed in order to secure due publicity for their act. But upon this I have nothing to add to what I have previously written. I can only await the making of a proper inquiry into the customs of the masses.

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