JUDGMENT : STANLEY, J. The suit out, of which this appeal has arisen was brought by the plaintiff, Kuar Bijaipal Singh, for recovery of property which formerly belonged to one Thakur Sukhram Singh,’ on the allegation that he is the adopted son of Thakur Sukhram Singh, having been adopted by Thakurani Lachman Kuar, the widow of Sukhram Singh, in pursuance of ah authority given to her by her husband before his death The court below decreed the plaintiff's claim, and hence the present appeal. 2. There is a connected appeal F.A. No. 193 of 1902 which has been heard with this appeal. It arose out of a suit brought by Kuar Mulayam Singh and Kuar Raghubarpal Singh, who claim to be co-heirs of Sukhram Singh, to recover two-thirds of his property, alleging as do the plaintiff-appellants in this appeal that there was no valid adoption of the plaintiff. The appellant, Jaisinghpal Singh, alleges that he is the reversionary heir, or one of the reversionary heirs of Thakur Sukhram Singh. Another appellant, Rao Nitrapal Singh, held a decree against Jaisinghpal Singh and at a sale held in execution of that decree he purchased portion of the property which belonged to Sukhram Singh. The third appellant, Thakurani Suraj Kunwar, was the wife of Kuar Jaisinghpal Singh. She has died since the institution of the appeal. 3. Sukhram Singh was a rais of Kora Rustampur and owned up to the time of his death considerable zemindari property. He had a child by his wife Thakurani Luchman Kuer, but it predeceased him. The case for the plaintiff is that, two days before his death which occurred on the 2nd of October, 1889, Sukhram Singh gave a written authority to his wife to adopt a son, and that, on the 29th of July, 1895, Thakurani Lachman Kuar executed a deed of adoption in pursuance of the authority so given to her, and on the same day adopted the plaintiff, as the son of Sukhram Singh. At the same time it is alleged that she executed a will and thereby appointed three persons, namely, Lekhraj Singh and Moti Ram and one Pandit Tika Ram, since deceased, managers of the property, during the minority of the plaintiff. 4. The defendants set up the defence that the alleged authority to adopt and the deed of adoption are forgeries, and that no such documents were ever executed. 4. The defendants set up the defence that the alleged authority to adopt and the deed of adoption are forgeries, and that no such documents were ever executed. It is also alleged by the defendants that at the dates of the execution of these documents, respectively, Thakur Sukhram Singh and Thakurani Lachman Kuar were in a dying condition and unconscious and so incapable of executing any document. It is further set up by them that the plaintiff could not have been validly adopted inasmuch as he is a grandson of Desraj Singh who was the brother of Lachman Kuar. Their contention is that Musammat Lachman Kuar could not have con-tracted a legal marriage with the plaintiff's father, Raghubar Dayal, and that therefore plaintiff could not have been legally adopted by Lachman Kuar. 5. The three questions for determination are first, had Lachman Kuar authority from her husband to adopt a son, if so, secondly, was the plaintiff adopted by her, and thirdly, if the plaintiff was so adopted, was the adoption valid. 6. I shall first deal with the questions of fact. (His Lordship then discussed the evidence and continued thus : ) 7. The authority to adopt, the deed of adoption, and the fact of adoption, have I think, been satisfactorily proved, Nothing appears in the evidence or has been suggested in argument which leads me to doubt the propriety of the decision of the court below upon the question of fact determined by it. 8. I now come to deal with the legal question which has been raised on behalf of the defendants-appellants, namely, that an adoption by a widow of her brothers' grandson cannot according to Hindu Law, be supported. The argument is that just as in the case of an adoption by a father, the mother of the adopted child should be a person between whom and the adopting father, there might have been a legal marriage, so also in the case of an adoption by a widow with the assent of her husband the father of the adopted child must be a person who might lawfully have been the husband of the adopted mother. The view is supported by Sir F. MCNAGHTEN in a lengthy comment upon the case of Dagumbaree v. Teramonee, (F. McN. 170, App. The view is supported by Sir F. MCNAGHTEN in a lengthy comment upon the case of Dagumbaree v. Teramonee, (F. McN. 170, App. 10) and is accepted by some other writers on Hindu Law, but it does not meet with general approval. Referring to it, Mr. Mayne in his Treatise on Hindu Law and Usage (VI Edn., p. 173), says “It seems to me, however, with the greatest respect, that this is introducing into the Hindu theory of adoption a second fiction for which there is no foundation. The real fiction is that the adopting father had begotten the child upon its natural mother; therefore it is necessary that she should be a person who might lawfully have been his wife. There is no fiction that the natural father had also begotten the child upon the adopting mother. The natural son becomes the son, not merely of the particular wife from whom, he is born, but of all the wives; and the authors of the Dattaka Mimansa and Dattaka Chandrika seem to think that the same result follows in the case of several wives from an adoption. The fiction can hardly extend to the length of his being conceived by all. In fact it would appear that the Hindu Law takes no notice of the wife in reference to adoption. The relation of the adopted son to her arises upon adoption. But the balance of authority and reasoning appears to be opposed to the idea that relationship to her has any effect up the choice of the boy to be adopted. The authority which is relied upon for the view presented to us by the learned Counsel for the appellants is a comment of Nanda Pandita, contained in the Dattaka Mimansa, section 2 article 33. In article 33, referring to the declaration of Viddha Gautama, mentioned in the preceding article, namely, in the three superior tribes, a sister's son is nowhere mentioned as a son. Nanda Pandita declares that the “expression‘ sister's son’ is inclusive of the son of a brother also. In article 33, referring to the declaration of Viddha Gautama, mentioned in the preceding article, namely, in the three superior tribes, a sister's son is nowhere mentioned as a son. Nanda Pandita declares that 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; for brothers are only mentioned to be adoptive parents.” And at the end of the succeeding article he states the adoption of a brother's son by a sister or a sister's son by a brother, could not take place on account of the difference of their kind, in being male and female, respectively.” In a later passage dealing with a declaration of Caunaka’ that the boy to be adopted should bear “the reflection of a son,” Nanda Pandita makes the comment that they should bear the resemblance of a son; that is, the capability to have sprung from the adopter himself through an appointment to raise issue on another's wife, and so forth; as is the case of the son of a brother, a near or distant kinsman, and so forth (section 5, article 16). It is argued that these ‘passages establish the rule that where a widow adopts with the sanction of her husband, she must not select a son to whose father she could not have been legally married. This rule we are asked to regard as a rigid maxim of law, vitiating the adoption of the plaintiff. The rule thus laid down by Nanda Pandita is an extension of the rule of Viddha Gautama and would appear to be based upon the absolute custom of Niyoga, according to which the begetting of offspring by another on the wife of a man who was impotent or disordered in mind or incurably disease was sanctioned; and as in the case of an adoption by a husband, the adoptive son must, according to Caunaka, bear the reflection of a son, so by analogy the son adopted by a Hindu widow must bear the resemblance of a son to her, that is, be the child of a father, who could have pro-created him without committing incest. Much useful information upon the question before us is to be gleaned from the elaborate judgment of my brother BANERJI, who delivered a dissenting judgment, which was afterwards upheld by the Privy Council, in the case of Bhagwan Singh v. Bhagwan Singh,[1895] I.L.R., 17 All., 294, and also in the forcible judgment in that case of Chief Justice Sir JOHN EDGE. The question for determination in that case was as to the validity, according to the Hindu Law of the Benares School, of an adoption amongst the three regenerate classes of a sister's son, of a daughter's son, or of a son of the sister of the mother of the adopter. The result of accepting the rule laid down by Nanda Pandita that a brother's son cannot be adopted by a sister, if the rule was ever intended to apply to a widow who makes an adoption with the sanction of her husband, which appears to me to be doubtful, entails the anomaly, that if a brother's son has been adopted by a husband in his life-time, the adoption is legal, and the adopted son becomes the son not merely of his adoptive father but of the adoptive father's wife, although such wife could not have legally been married to his father; and yet the wife surviving the husband and having authority from the husband to adopt a child, could not adopt the same boy. It would also follow that if the husband in his life-time gave express sanction to his wife and directed her to adopt the son of her brother, she would not be capable of carrying out the direction by reason of the rule in question. It is admitted that if Sukhram Singh had elected in his life-time to adopt a son, the plaintiff would have been eligible for adoption and that no exception could have been taken to the choice of him. There would be this further anomaly, that if a Hindu having two wives, authorized the adoption of a son by one wife, such wife might lawfully adopt the son of a father whom the other wife could not have legally married, and yet the son so adopted, would become the son of both wives. 9. Now, undoubtedly the Dattaka Mimansa is a work of high authority. No rule laid down, in it can be lightly rejected. 9. Now, undoubtedly the Dattaka Mimansa is a work of high authority. No rule laid down, in it can be lightly rejected. Their Lordships of the Privy Council in the case of Bhagwan Singh v. Bhagwan Singh,[1899] I.L.R., 21 All., 412 which came before them on appeal from the decision in the case to which I have already alluded, in which the validity of the adoption of a mother's sister's son by a Hindu of any of the three regenerate classes, was the subject of consideration, observed in regard to the Dattaka Mimansa as follows:— ”To call it infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler seem nearer to the true mark; but it is cigar that both works must be accepted as bearing high authority for so long a time that they have become imbedded in the general law.” Then towards the end of the judgment their Lordships say “for 80 or 90 years there has been a steady current of authority one way, in all parts of India. It has been decided that the precepts condemning adoption such as the one made in this case, are not monetary only but are positive prohibitions, and that their effect is to make such adoptions wholly void, That has been settled in such a way and for such a length of time as to make it incompetent to Court of Justice to treat the question now as an open one.” As I understand, their Lordships' judgment they do not intend to convey by it that all the rules laid down in the work of Nanda Pandita are to be taken as unerring, and rigid maxims of law, to be accepted in all cases without question; but rather that they are to be regarded as of the highest authority, and when supported by a steady current of authority must be accepted as binding. I may point out one rule laid down by Nanda Pandita which has not been accepted, and that is the rule that a widow cannot adopt. I may point out one rule laid down by Nanda Pandita which has not been accepted, and that is the rule that a widow cannot adopt. Referring to the language of Atri that an adoption is to be made “by a man destitute of a son only,” he observes, “section (1), article (15), from the masculine gender here being used, it follows that a woman is incompetent to adopt.” Accordingly Vashishtha ordains; “let not a woman either give or receive a son in adoption, unless with the assent of her husband.” Then comes the following passage:— “From this the in competency of the widow is deduced since the assent of her husband is impossible.” Later on in section I, article 28, he thus explains ‘unless with the assent of her husband:’ “Besides, this part of the text, ‘unless with the assent of her husband,’ is an exceptive exemption from the general prohibition contained in the part preceding, ‘let not a woman either give or accept a son’; and in it the assent of the husband is the cause. Therefore the widow is incompetent to adopt; for her husband being dead since, his assent is impossible, the exemption destitute of the cause to give it effect is without validity, and other means of deducing her authority are wanting.” This is not consistent with the recognized rule which prevails in, at least, the parts of India which are governed by the law of the Benares school, that a widow may adopt provided that she has obtained the sanction of her husband in his life-time. I am not aware that any other of the old commentators has affirmed the rule so laid down by Nanda Pandita that a widow cannot adopt her brother's son or grandson, and our attention has not been directed to any other old authority. Messrs. West and Buhler in their work on Hindu law, III Edition, Volumes 2, page 1032, make the following comment upon this question:— “In the earlier form of the law as the relation of the adopted son to his adoptive mother was merely incidental, the doctrine of a possibility of union between her and the real father seems not to have been developed. It grew up as natural feeling, gradually gave to the adoptive mother, as compared with the adoptive father, a more and more important relation to the child whom they brought up as their own. Then as the condition was accepted of a possible union of the real mother with the ideal father to produce the adopted son, the corresponding notion was suggested of a similar necessary relation between the ideal mother and the real father. Thus it came to be admitted, though not at all universally, that where the real father and the adoptive mother could not, without incest, have joined in procreating the boy, he is not a fit subject for adoption.” 10. Dr. Jolly in his Tagore Lectures on the law of adoption at pages 162 and 163, expresses strong dissent to the rule laid down by Nanda Pandita. Referring to the general prohibition to adopt certain relations laid down by Sutherland that no one can be adopted who might not have been the legitimate son of the adopter by a legal marriage with his mother, he observes that “a close examination of the original authorities shows that there is very little if anything in the Sanskrit treatises to warrant the formation of such a rule as this.” ‘ He further observes “that the whole questions turn on the real import of a somewhat obscure passage in Nanda Pandita's Dattaka Mimansa. Nanda Pandita has apparently borrowed the elements of his theory from the Dattaka Chandrika and has literally transcribed from the work (II. 8) the sentiment that those only are capable of being adopted who might have been begotten by Niyoga and the like. This is an inference drawn from the principle that adoption imitates nature, and that the adopted son ought to resemble a natural son.” He further observes” Nanda Pandita has connected this theory with the prohibition to adopt a brother's son or a sister's son and has developed a general theory of forbidden relationship which he compares to forbidden relationship in marriage. This, however, is nothing but an analogy. This, however, is nothing but an analogy. It is one thing to speak of one who is unlike a son, and another thing to exclude everyone from adoption whose mother the adopter might not have legally married,” He also points out (at page 164) that the custom of Niyoga was obsolete even in the time of some of the oldest Smriti writers, and that its obsolete character was recognised to the fullest extent in the Dattaka Mimansa (11-64-68); and writes, “If therefore Nanda Pandita makes use of this obsolete custom in order to justify his own opinions in regard to a different practice) it is no better than if in Modern Europe a Judge would try to settle a question regarding the offspring of an illicit connection by a reference to jus primae noctis” Referring to the passage in the Dattaka Mimansa that “the adopted son must be the resemblance or reflection of a son” i.e., fit to be produced the adopter through Niyoga and to the mistake made by Mr. Sutherland in confounding Niyoga with legal marriage, Mr. Mandlik in his Vyavahara Mayuklia (at p. 480) observes, “Niyoga is not a marriage at all of any kind whatever; and further Niyoga presupposes at the least a former betrothal of the woman with whom the said Niyoga is pre-supposed. Niyoga, strictly speaking, means the raising up of issue on the widow of a deceased, by some one on appointment. As a practice, it has been reprobated by Manu. At no time in India's History was Niyoga ever exalted to the rank of marriage and it is now a mere fossilized relic of the past. Marriage is one of the principal Sanskaras amongst the Hindus; whereas Niyoga is neither a Sanskara nor even a mere inferior popular observance sanctioned by custom. At the best it was according to Manu a beastly practice reprobated by the learned and expressly prohibited in the Kali age.” Dr. jolly sums up the result of his review of the principal doctrines of the Indian Law of adoption as follows:— “It is simply a misfortune that so much authority should have been attributed in the courts all over India to such a treatise as Nanda Pandita's Mimansa which abounds more in fanciful distinctions than perhaps any other work on adoption. jolly sums up the result of his review of the principal doctrines of the Indian Law of adoption as follows:— “It is simply a misfortune that so much authority should have been attributed in the courts all over India to such a treatise as Nanda Pandita's Mimansa which abounds more in fanciful distinctions than perhaps any other work on adoption. It is high time that the numerous other treatises on adoption should be thoroughly examined and given their due weight. Even, hitherto in spite of the pressure exercised by the authority of Nanda Pandita, the prevailing tendency of decisions has been in favour of divesting adoptions of arbitrary restrictions which have no foundation in equity and justice.” Mr. Golap Chander Sarcar in his lectures on the Hindu Law of Adoption in dealing with the restrictions based upon relationship, regarding the selection of the boy to be adopted, writes at p. 313 as follows:— ” These restrictions are not only not found in the most authoritative Smritis and in the commentaries anterior to the Dattaka Mimansa, but are opposed as I shall show later on to institutions recognized by them. The text of the minor Smritis, bearing upon this subject, are for the first time noticed by Nanda Pandita who has laid down certain restrictions. But there appears to be an insurmountable difficulty In understanding whatever any general principle of exclusion from the capacity of being adopted was intended to be laid down by him, and if so, what that principle is.” 11. Dr. Jogendro Nath Bhattacharji in his commentaries on Hindu Law, adversely criticises the conclusions arrived at by Mr. Mayne on this question. According to him the text in selecting a boy for adoption is the possibility of Niyoga and not the absence of such relationship between the adoptive father and the natural mother as renders marriage impossible. He writes (at p. 167.):— “If there had been any fiction in adoption based on Niyoga, the rule of selection under consideration would have been the very opposite of what is now accepted by the modern text-writers. The doctrine favoured by them is that only the relationship between the adoptive father and the natural mother has to be taken into, consideration. But according to the ancient practice of Niyoga a son was begotten on the wife or widow of a sonless man by a Sapinda. The doctrine favoured by them is that only the relationship between the adoptive father and the natural mother has to be taken into, consideration. But according to the ancient practice of Niyoga a son was begotten on the wife or widow of a sonless man by a Sapinda. In making such appointment surely the relationship between the woman and the levier was taken into consideration, and not the relationship between the sonless man and the wife of the levier.” Further he adds, “the rules as to Niyoga furnish only the text of eligibility. When a husband adopts he is the author of the act, and the rules and restrictions ought to be considered with reference to him, When a female makes an adoption, she is the author of the act; and in making a proper selection she must consider her ‘relationship with the natural father.” The learned writer admits that the adoption of a boy selected on these principles may sometimes lead to incongruous relationship between the child adopted and the husband and wife of the person actually adopting. Commenting upon the view expressed by Mr. Mayne in the extract which I have quoted, he says “If the learned author knew even the elementary canons of our religious observances, he could not have made the erroneous assertions contained in the above extract.” I am unable to see the force of this criticism particularly as the canons of religious observances referred to are not specified. It seems to me, however that the views expressed by Mr. Mayne as also by other modern writers on Hindu Law, are reasonable. It is difficult to understand how a boy who is admittedly eligible for adoption by a husband can be regarded as ineligible if the adoption is by the widow of that husband with his sanction. The widow can only adopt with the sanction of her husband, and Nanda Pandita writes commenting upon the rule laid down by Satyashada, the filiation to the father proceeds from the sanction only of the father and not from the act of adoption, for the wife in adopting is merely an agent. The passage runs thus,” Section I, article 19. The widow can only adopt with the sanction of her husband, and Nanda Pandita writes commenting upon the rule laid down by Satyashada, the filiation to the father proceeds from the sanction only of the father and not from the act of adoption, for the wife in adopting is merely an agent. The passage runs thus,” Section I, article 19. Now the connection of lineage to the father is the filiation as his son, and such filiation proceeds from the sanction only of the father; not from the act of adoption for the agent of that in this instance is the wife.” According to this rule the real adopter is not the widow but her deceased husband through her agency. If the deceased husband be regarded as the real adopter, then it seems to follow that the adoption of the son or grandson of his brother-in-law is unobjectionable. Mr. Jogendro Chander Ghose in his recent work on the principles of the Hindu Law rejects the theory propounded by Nanda Pandita. He writes as follows at p. 532:” Another and a still more surprising rule was supposed by modern lawyers to regulate adoption— it was that the boy should not be so related that his natural father could not marry the adoptive mother.” The rule was given effect to in some early cases but more recent cases have established that it has no foundation in Hindu Law. It seems to me that the weight of opinion amongst modern writers on Hindu Law supports the validity of the plaintiff's adoption. 12. The case-law on the subject is very scanty. One decision of a Bench of this High Court has been strongly relied upon on the part of the appellants as deciding that a widow cannot affiliate a brother's son. This is the case of Musammat Batas Kuar v. Lachman Singh[1875] H.C.R, N.W.P., 117. In that case PEARSON and SPANKIE, JJ. held that the adoption by a widow of her brother's son was not valid. It appears from the judgment that the sanction of the husband to the adoption had not been obtained and therefore the adoption was clearly invalid. It was unnecessary, therefore, for the learned Judges to consider the question of the eligibility of the boy who was adopted, and the view expressed by them on this point, however worthy of respect, may be treated as obiter dictum. It was unnecessary, therefore, for the learned Judges to consider the question of the eligibility of the boy who was adopted, and the view expressed by them on this point, however worthy of respect, may be treated as obiter dictum. Once the Courts found that no authority was given for the adoption it was bound to hold the adoption invalid, Dr. Bhattacharji in his work to which I have referred, relies upon the ruling in this case. But he has inaccurately stated that in that case the adopting widow was acting under her husband's authority. He writes, “following the authority of the Dattaka Mimansa, the court in that case set aside an adoption by a widow acting under her husband's authority where she had selected the son of her brother.” The same question came before a Bench of the Madras High Court in the case of Sriramulu v. Ramayya[1881] I.L.R., 3 Mad., 51. In that case it was held by KINDERSLEY and MUTTUSAMI AYYAR, JJ., that the adoption of a wife's brother was valid. In the course of his judgment, MUTTUSAMI AYYER, J., observes the Subordinate Judge is therefore in supposing that because the adoption of a stepbrother is forbidden, the rule that a legal marriage must have been, possible between the adopter and mother of the adopted boy does not refer to their original relationship, It is true that in Dattaka Mimansa, S. II. 33-34, a sister is said not to be competent to adopt her brother's son in the same way in which a brother is incompetent to adopt his sister's son. But this restriction is not to be found in Dattaka Chandrika, and as observed by Mr. Mayne in his work on Hindu Law, and as repeatedly ruled by this Court an adoption made by a woman is made for her husband. There is moreover, no foundation in the text for the rule that the adopting mother must be a person who” might have legally married that natural father of the adopted boy.” 13. In the case of Raghavendra Rau v. Jayaram Rau,[1897] I.L.R., 20 Mad., 283, in which the validity of the adoption by a Hindu widow of the son of her sister's daughter was in question, the court consisting of SUBRAMANIA AYYAR, and BENSON, JJ., held that such an adoption was valid. In the case of Raghavendra Rau v. Jayaram Rau,[1897] I.L.R., 20 Mad., 283, in which the validity of the adoption by a Hindu widow of the son of her sister's daughter was in question, the court consisting of SUBRAMANIA AYYAR, and BENSON, JJ., held that such an adoption was valid. In the course of their judgment they observed, The only other objection taken to the legality of the adoption rested on the fact that the adoptive mother, Seshammal is the cousin of the natural father of the respondent. But this contention is also untenable; since it has been ruled in this Court that the adoption of a son of even a wife's brother is good, Sriramulu v. Ramayya,[1881] I.L.R., 3 Mad., 15. It is scarcely necessary to say that it is immaterial in such a case whether the adoption is made by a man himself or by his wife after his death, for the adoption is for him.” 14. The same question came before a Bench of the Bombay High Court in the case of Bai Nani v. Chuni Lal[1897] I.L.R., 22 Bom., 973. In that case it was held that the adoption by a Hindu widow of her brother's son was valid. RANADE, J., in the course of his judgment in dealing with the restriction sought to be imposed upon the right of adoption observes, “There is a general unanimity among the authorities that there is nothing in the Smriti texts, or in the commentaries of Mitakshara and Mayukha chiefly in force in Gujrat, which suggests any such particular limitation in the matter of adoption. The prohibitions based on near relationship had their origin chiefly in the Dattaka Mimansa a work of Nanda Pandita, who relied solely—upon the texts of Chaunaka and Sakala.” Referring to these texts he says, “These original texts expressly lay down among negative prohibitions the case of the daughter's son, the sister's son and the son of the mother's sister as ineligible for adoption in the case of three higher castes of Hindu society. Nanda Pandita further enlarged their scope by analogical reasoning and expressed an opinion that for the same reason that a brother could not adopt his sister's son, a sister could not adopt a brother's son.” Later on, the learned Judge observes as follows:— “As far as sister's son and daughter's son, and mother's sister's son are concerned, Nanda Pandita had the authority of express texts to support him, and his remarks in respect of them furnished only the reason of the rule. In respect of the further extension of the prohibitions to near relation of the adopting widow, there is no such textual authority and the commentator cannot legitimately claim the functions of the Smriti writer. * * * The extension sought to be given by Nanda Pandita in the Dattaka Mimansa, and after him by the author of the Dattaka Chandrika, is clearly far beyond the scope of a commentator's functions; and unless such an extension has secured general adherence in the general consciousness, or the habits and practices of” the people, British Courts of Justice, administering Hindu law, are not bound to give effect to it as part of the general law (Collector of Madura v. Moottoo Ramalinga([1868] 12 M.I.A., 436.” The learned Judge further, observes that, “It deserves notice that for the reasons which led their Lordships of the Privy Council to rule in Srimati Wooma Deyi v. Gokoolanund[1878] L.R., 5 I.A., 40, that the positive restrictions laid down by Nanda Pandita were only directory and not prohibitive even if this extension to the widow's near relations were permissible the restrictions would be at best directory only, and not mandatory, proper to be observed but not obligatory and enforceable as positive law.” 15. With the exception thereof the dictum in the case of Batas Kuar v. Lachman Singh, no authority has been laid before us in which the validity of an adoption by a Hindu widow of her brother's son or grandson have been called in question. In the case of Batas Kuat v. Lachman Singh, as I have pointed out it was unnecessary to determine the question inasmuch as the adoption was clearly illegal, the widow not having obtained the sanction of her husband to make an adoption. In the case of Batas Kuat v. Lachman Singh, as I have pointed out it was unnecessary to determine the question inasmuch as the adoption was clearly illegal, the widow not having obtained the sanction of her husband to make an adoption. I can find on sufficient grounds in the authorities for limiting the field of choice in the matter of adoption as We are asked to do by the appellants. So far as I can discover, the weight of reason and authority supports the validity of an adoption by a widow to her husband of her brother's son or grandson. I would therefore dismiss the appeal with costs. BANERJI, J. The questions to be determined in this appeal are three in number; (1) whether Sukhram Singh granted permission to his wife, Musammat Lachhmin Kuar to adopt; (2) whether Musammat Lachhmin Kuar did in fact adopt the plaintiff, and (3) whether such adoption, if made, is valid under the Hindu Law. 16. Upon the first two questions I have little to add to what has been said by the learned Chief Justice. [His Lordship after discussing the evidence answered both the questions in the affirmative; and then proceeded.] 17. The third question, namely, that of the validity of the adoption is, however, not free from doubt. It is urged that as the plaintiff, Bijaipal Singh, is the grandson of Desraj, the brother of Lachhmim Kuar, he could not under the Hindu Law be adopted by her. The question has not yet been authoritatively decided in these provinces or in the sister province of Bengal. In Musammat Batas Kuar v. Lackhman Singh,[1875] N.W.P., H.C.E., 117, the learned Judges expressed the opinion that a woman may not adopt her brother's son. As, however, they held that the widow who made the adoption in that case had not been authorised by her husband to adopt a son, the opinion they expressed on the point now in question was only obiter dictum. As, however, they held that the widow who made the adoption in that case had not been authorised by her husband to adopt a son, the opinion they expressed on the point now in question was only obiter dictum. The question was not discussed, All that the learned Judges say is that “no sufficient reason is shown why the doctrine of Nanda Pandita that a woman may not affiliate a brother's son should not be accepted as correct.” The only other, case in Upper India in which the point was raised was, as far as I have been able to find out, the case referred to in Sir FRANCIS MACNAGHTEN'S considerations on Hindu law, but in that case the point was not actually decided. Against the opinion of the learned Judges of this Court referred to above, are the dicta of the Madras High Court in Sriramulu v. Ramayya[1881] I.L.R., 3 Mad., 15; Raghavendra Ran v. Jagoram Rau[1897] I.L.R., 20 Mad., 283, at page 289, to the effect that an adoption made by a woman is made for her husband, and that there is no foundation “for the rule that the adopting mother must be a person who might have legally married the natural father of the adopted boy.” In the Bombay Presidency the Sastris did, in some cases referred to in West and Buhler's Hindu Law, page, 1033, declare such an adoption to be illegal, but in the recent case of Bai Nani v. Chunni-Lal[1897] I.L.R., 22 Bom., 973, the Bombay High Court has ruled the contrary and held that under the Hindu law a widow may adopt her brother's son. Such being the state of the case-law on the subject, we have to determine whether according to the authorities on Hindu law an adoption by a widow of her brother's son and necessarily of her brother's grandson is valid or not. The works of high authority on questions relating to adoption in the Benares school are the Dattaka Chandrika and the Dattaka Mimansa. According to those treatises the test of eligibility for adoption is the capability to have been begotten by the adopter through appointment and so forth.” (Dattaka Chandrika, S.V., sec. 8 and Dattaka Mimansa. S.V., sec. 16). Hence the rule stated by Mr. According to those treatises the test of eligibility for adoption is the capability to have been begotten by the adopter through appointment and so forth.” (Dattaka Chandrika, S.V., sec. 8 and Dattaka Mimansa. S.V., sec. 16). Hence the rule stated by Mr. MAYNE in his celebrated work on Hindu Law and Usage that “no one can be adopted whose mother, the adopter, could not have legally married.” (6th Edn. page 169). This rule manifestly applies to the case of a male person adopting a boy to himself Nanda Pandita, the author of the Dattaka Mimansa has, however, extended it to the case of a female. In S. II, sec. 32, he says “brothers and sisters also of the whole blood, are not reciprocally the adoptive parents of the son (of any of them).” Again, in section 33 he observes : 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 sister. Similarly in section 34 he says, “the adoption of a brother's son by a sister, or a sister's son by a brother could not take place.” The learned author does not base his conclusion upon the authority of any of the Smritis or institutes of sages. The Dattaka Chandrika which is of an earlier date than the Dattaka Mimansa, does not lay down any such prohibition in the case of adoption by a female. Nor is it found in any of the texts of the sages, Saunaka and Sakala, from which most of the rules contained in the Dattaka Mimansa are deduced. It is not easy to follow the reasoning upon which the rule propounded by Nanda Pandita is founded. Nor is it found in any of the texts of the sages, Saunaka and Sakala, from which most of the rules contained in the Dattaka Mimansa are deduced. It is not easy to follow the reasoning upon which the rule propounded by Nanda Pandita is founded. After quoting the text of Manu “if one among brothers of the whole blood (ekjata) be possessed of male issue (putraban), Manu pronounces that they all are fathers of the same, by means of that son” he observes “in this text the state, of brothers as adoptive fathers being propounded, their incapacity to be the objects of adoption follows.” Referring to the use of the word “brothers,” he states:— “from the masculine gender being used, it results that brothers and sisters also of the whole blood are not reciprocally the adoptive parents of the son (of any of them), and then he deduces the rule in section 33 which I have quoted above, It may be observed that according to the authorities of the Benares school a woman cannot adopt a son unless authorised by her husband to do so. Vashishta and Baudhayana ordain that “a woman shall neither give nor accept a son except with the husband's assent.” (Bhattacharji's Hindu Law, 2nd Edn., page 152 and Dattaka Mimansa S. I, section 15). An adoption made to herself is therefore not valid (Mayne, page 140). It has also been held that an adoption is made to the husband only and that he may make an adoption “without his wife's assent and notwithstanding her dissent,” although the act of adoption affiliates the boy both to the husband and wife. (Mayne, page 139). A Hindu widow governed by the Mitakshara law of the Benares school may, with the express permission of her husband, given in his lifetime, adopt a son, but such adoption is to the husband. In making it, the widow, according to the authorities, acts only as the agent of the husband. This appears not only from the texts of Vashishta and Baudhyana cited above, but also from the Dattaka Mimansa itself. In S. I, sec. 19, the author says:— “The connection of lineage to the fattier is the affiliation as his son; and such filiations proceeds from the sanction only of the father; not from the act of adoption for the agent of that in this instance is the wife. 18. In S. I, sec. 19, the author says:— “The connection of lineage to the fattier is the affiliation as his son; and such filiations proceeds from the sanction only of the father; not from the act of adoption for the agent of that in this instance is the wife. 18. Their Lordships of the Privy Council also appear to have been of the same opinion in the case of Chowdry Pudum Singh v. Koer Oodey Singh[1869] 12 M.I.A., 350. It was held in that case that an adoption may be made by a widow under an authority conferred upon her for that purpose by her husband, but such authority must be strictly carried out as the adoption is for the benefit of the deceased husband and not the widow alone.” See also the note appended to Vyavastha No. 508 in the Vyavastha Darpan by Shama Charan Sircar. As it must now be taken to be well established that a widow making an adoption, acts as the agent of the husband and as the adoption is to the husband, the test of eligibility must be the test which would have applied, had the adoption been made by the husband himself in his life-time. It has been ruled and is indeed conceded that a man may validly adopt the son of his wife's brother. Such an adoption would not offend against the rule that no boy should be adopted whose mother in her maiden state could not have been married to the adopter or with whom the adopter could not have “carnal knowledge” according to the absolete practice of Niyog. If, therefore the husband could himself have adopted the boy, there appears to be no reason why his widow, who is merely his agent in this respect, should not be competent to do so, and there appears to be no valid reason for extending the rule to the widow. It seems that when Nanda Pandita declared that a brother's son must not be adopted by a sister, he had in view an adoption by a woman to herself which in his opinion would not be an adoption to her husband. He could not possibly have contemplated the case of a widow, for according to him a widow is incompetent to adopt (S. 16, sec. I.) The rule propounded by him can only be justified on the principle of incongruous relationship (Virudka Sambandha). He could not possibly have contemplated the case of a widow, for according to him a widow is incompetent to adopt (S. 16, sec. I.) The rule propounded by him can only be justified on the principle of incongruous relationship (Virudka Sambandha). No doubt it would offend Hindu ideas if a woman were to become as she must become by adoption the mother of her brother's son, but this would happen if the same boy had been adopted by the husband himself in his life-time or by another widow, after his death under his express authority. The consideration of incongruous relationship should not, therefore, justify the extension, to widows, of the converse of the rule which obtains in the case of a male making an adoption, The Dattaka Mimansa is no doubt a work of high authority on questions of adoption, but, as observed by their Lordships of the Privy-Council in Bhagwan Singh v. Bhagwan Singh[1869] I.L.R., 21 All, 412, “to call it infallible is to strong all expression and the estimates of Sutherland and of West and Buhler seem nearer to the true mark.” In some respects this view of Nanda Pandita has not been adopted by the courts, and it seems to me that to adopt them in this instance would be unduly straining a rule which was manifestly laid down to govern adoptions by males only. For the above reasons I am unable with due deference to agree with the opinion expressed in the case of Musammat Batas Kuar v. Lachman Singh[1875] N.W.P., H.C.R., 117, and to hold that the adoption of the plaintiff by Lachmin Kuar offends against Hindu Law and is invalid. I also would, therefore, dismiss this appeal with costs. By The Court.— The order of the Court is that the appeal be dismissed with costs