JUDGMENT Maclean, C.J. - This is a suit to set aside a decree of this Court dated the 29th of April 1878, as null and void as against the Plaintiff; to have it declared that the Defendant No. 4 was not the duly adopted son of one Radha Krishna Ghosal; for a declaration that the Plaintiff is the sole heir of the latter, and for consequential relief. Three questions arise for decision: (1) Is the above decree binding on the Plaintiff? (2) Whether in fact there was an adoption of Defendant No. 4 ? (3) Whether his mother could validly give him in adoption ? 2. A short history of the case is this : Radha Krishna Ghosal died in September 1875 leaving a wife, one Janoki Debya, and three daughters Karunamoyee Debya (Defendant No. 1), Nritya Kali Debya (Defendant No. 2) whose son is the present Plaintiff, and Swarna Moyee Debya who was a childless widow and who is now dead. In 1876, the Defendant No. 4, who was alleged to have been adopted by Radha Krishna in 1863, and claiming to be the adopted son of Radha Krishna Ghosal, applied for a certificate under the Succession Certificate Act, in relation to the estate of his adoptive father and obtained it. 3. On the 24th of July 1876, the daughter Nritya Kali, Defendant No. 2 in this suit, instituted a suit to set aside the adoption, and in her plaint she described herself as Srimati Nritya Kali Debya, wife of Nobin Chunder Bandopadhya, mother and guardian of Jogesh Chunder Bandopadhya, the Plaintiff. On the 19th of May 1897 a decree was made in that suit by the second Subordinate Judge of Dacca, who set aside the adoption. In the judgment in that suit, it was held that the Plaintiff was suing on her own behalf and not on behalf of the present Plaintiff. There was an appeal to the High Court and, on the 29th of April 1878, the Defendant No. 2 in the present suit presented a petition for herself, and as mother and guardian of the present Plaintiff, for the compromise of the suit upon the terms which had been agreed upon by a solenamah dated the 28th of March 1878. There was an appeal to the High Court and, on the 29th of April 1878, the Defendant No. 2 in the present suit presented a petition for herself, and as mother and guardian of the present Plaintiff, for the compromise of the suit upon the terms which had been agreed upon by a solenamah dated the 28th of March 1878. The Petitioner asks that it might be declared agreeably to the terms of the solenamah, that the adoption of the Defendant No. 4 was valid : and under the compromise, the property of Radha Krishna Ghosal was divided between the Defendant No. 4, the widow of Radha Krishna and his three daughters whom I have named, in certain shares. So far as the solenamah goes, there is nothing to show that the Defendant No. 2 was purporting to act for her son, the present Plaintiff. 4. On the 29th of April 1878, a decree was made in the High Court in accordance with the terms of the compromise, purporting to be a consent decree, and under it the Defendant No. 4 was declared to be the adopted son of Radha Krishna Ghosal. In the muktearnamah, dated the 24th of Magh 1284, the Defendant No. 2 does not purport to act for her son, the present Plaintiff. At this time the father of the Plaintiff was alive, and the mother was neither his natural nor his certificated guardian, and no order was made in the suit making the present Plaintiff a party, and the compromise does not purport to have been sanctioned by the Court on his behalf. Under these circumstances the Plaintiff contends that he was not a party to that suit; and that the compromise decree is not binding upon him. This contention must prevail. In any event the compromise was not sanctioned on his behalf by the Court. 5. The next question is whether in point of fact there was an adoption. The adoption is alleged to have taken place in 1863, and Radha Krishna died in 1875; and there can be no question that for the whole of that period twelve or thirteen years, he acknowledged and treated the Defendant No. 4 as his adopted son. The Court below has found in favour of the adoption. 6. It is urged for the Plaintiff that there was no valid adoption because the requisite ceremonies were not performed. The Court below has found in favour of the adoption. 6. It is urged for the Plaintiff that there was no valid adoption because the requisite ceremonies were not performed. There is no doubt that Radha Krishna was anxious to adopt a son; that he went from the country to Calcutta for the purpose of finding a son for adoption if he could, and that he went back to the country with a boy, the Defendant No. 4. It appears that the Defendants Nos. 2 and 4 have parted with all the properties, they severally obtained under the compromise, and that there is strong ground for suspecting that they are now making common cause with the Plaintiff against the present Defendants who are bond fide purchasers for value from them. There can be no doubt that in 1863 there was a public giving and taking in Calcutta, and if the evidence of Krishna Dhone Chatati is to be believed, and the Court below has believed him,--and of Kali Krishna Chakerbutty, there can be no doubt that the ceremonial rights in connection with the adoption were duly performed: and there can be no doubt that when the Defendant No. 4 was married, Radha Krishna treated him as his adopted son. The Defendants who are bond fide purchasers for value under deeds, some of which are attested by the Plaintiff himself, are in a difficulty, being strangers, in proving the fact of the adoption. But upon the evidence I have referred to, a strong presumption arises in favour of the fact of the adoption, a presumption which to my mind, the Plaintiff has not been able to rebut. As against the adoption it was urged that, by reason of the death of the natural father of the Defendant No. 4 within one year from the date of the adoption, the boy adopted was in a condition of impurity and therefore could not be validly adopted. But as to this, there is really no evidence; and it is conceded by the Appellant that there is no evidence to support this part of the case. 7. Then it was urged that the boy was really purchased by Radha Krishna, and that he gave the mother Rs. 700 for him. According to the evidence of the Plaintiffs witness Iswar Chandra Chakerbutty, this was done openly. 7. Then it was urged that the boy was really purchased by Radha Krishna, and that he gave the mother Rs. 700 for him. According to the evidence of the Plaintiffs witness Iswar Chandra Chakerbutty, this was done openly. It is almost idle to suppose that this could have happened, and that Radha Krishna who was so anxious to adopt, should, at the same time, openly do an act which would invalidate the adoption. I do not think we can give any credence to this part of the case. There is no doubt that in connection with the adoption, a deed of gift was executed in January 1863; and according to the evidence of Iswar Chandra Chakerbutty, one of the Plaintiff's witnesses, the deed of gift is in the possession of the Defendant No. 2, the mother of the Plaintiff. He says:-- "I saw that deed of gift with Nritya Kali. She has got the deed of gift with her." The Defendants have put in an authenticated copy of this deed, but it is, perhaps, questionable whether that was properly admissible in evidence. I think it is proved that there was a public giving and taking and that the Defendant's witnesses Kali Krishna Chakerbutty and Nunda Kumar Ghosal prove that the requisite ceremonies were duly performed. The letter from the Plaintiff's father of the first of Aswin 1282, Ex. A4, shows that he, at any rate, regarded the Defendant No. 4 as the adopted son of Radha Krishna. The fact of the adoption and that all the requisite ceremonies were performed, has been substantiated by the evidence, which also shows that Radha Krishna, throughout, treated the Defendant No. 4 as his adopted son, and that he was always so treated by relations and neighbours. 8. The last point is that the mother of the Defendant No. 4 had no authority from her predeceased husband to give the Defendant No. 4 in adoption to Radha Krishna, and that, without such authority, it was not open to her, according to Hindu law, to do so. The boy was one of three sons. The deed of gift, had it been produced, might perhaps, have thrown some light upon this question of authority, but, in its absence, there appears to be no evidence that any such authority was expressly given. The boy was one of three sons. The deed of gift, had it been produced, might perhaps, have thrown some light upon this question of authority, but, in its absence, there appears to be no evidence that any such authority was expressly given. But it is contended for the Defendants, that, in the absence of any such direct authority, it was competent for the mother, after the death of her husband, according to Hindu law, to give one of her sons in adoption. It is laid down by text writers of authority, whose opinion is entitled to much consideration, that a wife may give away her son in adoption after her husband's death, or when he is permanently absent, as for instance, an emigrant, or has entered a religious order, or has lost his reason, provided the husband was legally competent to give away his son, and has not expressly prohibited his being adopted. See Mayne's Hindu Law, 5th Ed., in para. 120). There is no suggestion of prohibition in the present case. The same view is taken by a very learned author Babu Golap Chandra Sarkar in his Tagore Law Lectures of 1888, on the subject of "The Hindu Law of Adoption," p. 276. The weight of authority to be given to the views of recent writers has been considered by the Judicial Committee of the Privy Council in the case of Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma and ors. 3 C.W.N. 427 (1899), and I only refer to the views of the writers I have mentioned subject to that criticism. In the Mitakshara, sec. 11, sub-sec. 9, it is stated : "He who is given by his mother with her husband's consent, while her husband is absent, [or incapable though present] or [without his assent] after her husband's decease, * * * * * becomes his given son." So Manu declares:-- "He is called a son given, whom his father or mother affectionately gives as a son, being alike (by class) and in a time of distress." The disjunctive particle would appear to imply that after the husband's death the widow could give a son in adoption without his express authority. The decision in the case of Mhalsabai v. Vithoba Khandapa 7 Bom. H. Cr. Rep. App. 26 (1862) supports this view, as also that in Hurosundree v. Chunder Money Sevestres Rep. 938 (1863). The decision in the case of Mhalsabai v. Vithoba Khandapa 7 Bom. H. Cr. Rep. App. 26 (1862) supports this view, as also that in Hurosundree v. Chunder Money Sevestres Rep. 938 (1863). The observations of the Court in the case of Tarinee Charan Chowdry v. Saroda Sundari Dassi 11 W.R. Civ. Rul. 468 (1869) may also be referred to. The case of Rangubai v. Bhagirthbai ILR 2 Bom. 377 (1877) dealt with the case of the giving in adoption by a wife, whilst her husband was alive, and without his assent, which is not the case we are now considering. 9. Referring for a moment to the authority of Dattaka Mimansa, sec. 4, Arts. 10-12, and to Dattaka Chandrika, sec. 10, Arts. 31 and 32, the same view is expressed, though in referring to these authorities, their views, so far as they deviate from or add to the Smritis, are to be accepted with caution [see per the Privy Council, in Sri Balusu Gurulingaswami v. Sri Balasu Ramalakshmamma 8 C.W.N. 427(1899)]. The Appellant, however, lays great stress on the precepts of Vasistha which, according to the Judicial Committee of the Privy Council, in the case I have just cited, are beyond dispute, but the meaning of which is open to various interpretations which must be determined by ordinary processes of reasoning. The precepts are as follows:-- "(1) Man formed of uterine blood and verile seed proceeds from his mother and his father as an effect from its cause. (2) Therefore the father and the mother have power to give, to sell and to abandon their son. (3) But let him not give or receive in adoption an only son. (4) For he must remain to continue the line of ancestors. (5) Let a woman neither give or receive a son except with her husband's permission." 10. In the same case it was also held that the rule that a wife's power to adopt or give adoption an only son, at least with the concurrence of the Sapinadas in cases when that is required, is co-extensive with that of her husband it most consistent with principle. 11. In the same case it was also held that the rule that a wife's power to adopt or give adoption an only son, at least with the concurrence of the Sapinadas in cases when that is required, is co-extensive with that of her husband it most consistent with principle. 11. The Appellant relies principally upon the precept:-- "Let a woman neither give nor receive a son except with her husband's permission" But if the precept No. 3 as to the adoption of an only son may be read as monitary and not mandatory, is difficult to see why the precept, now under discussion, cannot be so read, with the super-added reasoning that percept No. 5 may be reasonably interpreted as meaning that the giving in adoption by the wife is not to be effected without the husband's permission, if the situation be such that he can give such permission. If he were dead, he could not give such permission, at the immediate date of the giving in adoption. 12. In my opinion, the weight of the precepts and of the authorities is in favour of the view that the mother had power to give her son in adoption, and that the adoption was valid. The appeal therefore fails and must be dismissed with costs.