Judgement Appeal from a judgment and decree of the High Court (December 15, 1909) reversing a judgment and decree of the Subordinate Judge of Mainpuri (May 18, 1908). One Gandharp Singh, a wealthy Brahman, died childless in November, 1898, leaving him surviving as his sole heir according to Hindu law his widow, the first respondent. On June 17, 1902, she executed a deed by which she declared that, with the oral permission of her late husband, she had adopted the second respondent, who was her brothers son and then about twelve years of age. On June 17, 1907, the appellants instituted the suit, claiming to be reversionary heirs of Gandharp Singh, and praying for a declaration that the alleged adoption was invalid. The Subordinate Judge held that the ceremony of adoption did in fact take place, but neither at the time nor with the publicity alleged by the respondents, and without the authority of Gandharp Singh. While recognizing that it was his duty to follow the decision of the High Court in Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.), in which it was held that a widow could validly adopt her brothers son, the learned Subordinate Judge, upon an elaborate discussion of the texts, expressed the view that the adoption was invalid according to Hindu law. He made a decree in favour of the plaintiffs (appellants). The High Court (Sir J. Stanley C.J. and Banerji J.) concurred in the finding of the Subordinate Judge that the adoption had in fact taken place, but differed from his finding as to the authority, which they held to be established by the evidence. The learned judges pointed out that upon the question of the validity of a widows adoption of her brothers son the Subordinate Judge was bound by the previous decision of the High Court above referred to, and they did not consider it necessary further to discuss that question. Lowndes, for the appellants. Upon the evidence the alleged oral authority to adopt was not established. But if it were, the adoption by the widow of her brothers son was invalid. The Dattaka Mimansa (s. 2, vv. 33 and 34, and s. 5, v. 16) contains a definite prohibition against a widow adopting her brothers son. Lowndes, for the appellants. Upon the evidence the alleged oral authority to adopt was not established. But if it were, the adoption by the widow of her brothers son was invalid. The Dattaka Mimansa (s. 2, vv. 33 and 34, and s. 5, v. 16) contains a definite prohibition against a widow adopting her brothers son. The very high authority of the Dattaka Mimansa appears from the judgments in Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (( 1899) L. R. 26 Ind. Ap. 113, at p. 131.) and Bhagwan Singh v. Bhagwan Singh. (( 1899) L. R. 26 Ind. Ap. 153,at p. 161.) The following modern authorities support the view that the adoption is invalid Stranges Hindu Law, ch. iv., par. 2 (6th ed.), p. 83; Sir F. Macnaghtens Considerations of Hindu Law (1824), p. 170; W. H. Macnaghtens Hindu Law ( 1839), vol. i., p. 67; West and Buhlers Digest (3rd ed.), p. 1032 ; and it was directly so held in Musammat Battas Knar v. Lachman Singh. (( 1875) 7 N. W. P. H. C. 117.) A widow is precluded from adopting a son whom she could not have procreated with the natural father without incest. The prohibition is connected with the obsolete custom of niyoga, under which a sapinda or other person was appointed to procreate upon a wife or widow a son to a sonless man. The authorities all support the prohibition down to the publication of Maynes Hindu Law in 1878. His view (see Maynes Hindu Law, 7th ed., par. 137, p. 176) cannot weigh against the great authority of the Dattaka Mimansa. In Sriramulu v. Ramayya (( 1881) I. L. R 3 Madr. 15.) the adoption was by the husband; that case is, therefore, not in point. The decisions in Bai Nani v. Chunilal (( 1897) I. L. R. 22 Bomb. 973.) and Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.) are erroneous. [Vellanki Venkata Krishna Row v. Venkata Narsayya (( 1876) L. R. 4 Ind. Ap. 1.) was also referred to.] [Their Lordships intimated that they only required to hear the respondents counsel upon the question whether the adoption was invalid in law.] De Gruyther, K.C., and Dale, for the appellants. The decision and reasons in Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.) were right. Ap. 1.) was also referred to.] [Their Lordships intimated that they only required to hear the respondents counsel upon the question whether the adoption was invalid in law.] De Gruyther, K.C., and Dale, for the appellants. The decision and reasons in Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.) were right. The prohibition against a widow adopting her brothers son contained in the Dattaka Mimansa is not to be found in the Dattaka Chandrika, nor is it supported by the Smritis. It is a mere gloss of the authors. It is not a principle of Hindu law that a widow cannot adopt a son whose father she could not have married. The passage in Dattaka Mimansa, s. 5, v. 16, is taken from Dattaka Chandrika, s. 2, v. 8; it means that the son to be adopted should be one of the twelve kinds of sons recognized by the Smritis, and referred to in Maynes Hindu Law, 7th ed., par. 67, p. 81. The anomalous results which would follow if the niyoga test were applied are pointed out in Bai Nani v. Chunilal. (( 1897) I. L. R. 22 Bomb. 973.) Mandlik rightly describes niyoga as being " a mere fossilized relic of the past " and as having no bearing upon the question Hindu Law, pp. 480—482. The passage relied on in West and Buhler shows that adoptions of the kind referred to were recognized in practice. A husband can adopt his wifes brothers son ; this would not be the case if the principle contended for applied. An adoption by a widow under her husbands authority is made on behalf of the husband; the question of her relationship to the adopted son is therefore not material Chowdry Pudum Singh v. Koer Oodey Singh, (( 1869) 12 Moo. Ind. Ap. 350.) [Collector of Madura v. Mootoo Ramalinga Sathupathy (( 1868) 12 Moo. Ind. Ap. 397,at p. 436.); Srimati Uma Devi v. Gokoolanund Das Mahapatra (( 1878) L. R. 5 Ind. Ap. 40.); (as to meaning of " adya ") Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (( 1912) L. R. 39 Ind. Ap. 121, at p. 128.); Dattaka Mimansa, s. 1, vv. 19—21, s. 2, v. 28; Jollys Hindu Law, pp. 162 and 163; and Maynes Hindu Law, 7th ed., par. 112, p. 142, were also referred to.] Lowndes replied. 40.); (as to meaning of " adya ") Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (( 1912) L. R. 39 Ind. Ap. 121, at p. 128.); Dattaka Mimansa, s. 1, vv. 19—21, s. 2, v. 28; Jollys Hindu Law, pp. 162 and 163; and Maynes Hindu Law, 7th ed., par. 112, p. 142, were also referred to.] Lowndes replied. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal by the plaintiffs from a decree of the High Court of Judicature at Allahabad, dated December 15, 1909, which reversed a decree of the Subordinate Judge of Mainpuri, and dismissed the suit with costs. The plaintiffs brought their suit in the Court of the Subordinate Judge of Mainpuri on June 15, 1907, to have it declared that Jwala Parshad, who is a defendant and one of the respondents, was not the adopted son of one Tiwari Gandharp Singh, deceased, who had been the husband of Musammat Parbati Kunwar, who is the other defendant and respondent. The adoption which is impugned was made by Musammat Parbati Kunwar in March, 1899, to her deceased husband, Tiwari Gandharp Singh, who had died on November 9, 1898, without issue surviving him, and had been a Brahman. Jwala Parshad was the son of a brother of Musammat Parbati Kunwar. The plaintiffs, ho claimed as reversioners, denied that Jwala Parshad had been in fact adopted, and alleged that Tiwari Gandharp Singh had not given to Musammat Parbati Kunwar authority to adopt Jwala Parshad to him, and further alleged that Jwala Parshad, being a son of a brother of Musammat Parbati Kunwar, was in law ineligible for adoption by her as a son to her deceased husband. The Subordinate Judge framed six issues; two only of the issues are now of importance. It was concurrently found by the Courts below that the adoption was in fact made. The two issues which have to be decided in this appeal are as framed by the Subordinate Judge — " (4.) Did Gandharp Singh give permission to his wife to adopt Jwala Parshad ? " " (6.) Is the adoption invalid, inasmuch as the boy is the son of the adoptive mothers brother ? The two issues which have to be decided in this appeal are as framed by the Subordinate Judge — " (4.) Did Gandharp Singh give permission to his wife to adopt Jwala Parshad ? " " (6.) Is the adoption invalid, inasmuch as the boy is the son of the adoptive mothers brother ? " The authority to adopt Jwala Parshad was alleged to have been given to Musammat Parbati Kunwar by an oral will of her husband, Tiwari Gandharp Singh, a few days before his death. The Subordinate Judge held that the evidence that the authority to adopt Jwala Parshad had been given was untrustworthy, and found that no authority to adopt Jwala Parshad was proved to have been given. The High Court on appeal saw no reason whatever for doubting the trustworthiness of the evidence of the witnesses who had deposed to the fact that Tiwari Gandharp Singh had given permission to his wife to adopt Jwala Parshad as a son to him, and after a careful consideration of the evidence and the surrounding circumstances found as a fact that the permission to adopt Jwala Parshad had been given. In their Lordships opinion the learned judges of the High Court could have come to no other conclusion unless they had perversely disregarded the evidence and all the probabilities of the case. The direct evidence that the authority to adopt Jwala Parshad had been given by Tiwari Gandharp Singh to his wife was clear, and in their Lordships opinion was unassailable, and other facts showed that it was probable that such an authority would be given. Tiwari Gandharp Singh was a man well advanced in years; he had been thrice married; he had no surviving issue; there was no sagotra sapinda in his family; he was the last of the male line; he was a man of some considerable estate and position; and he had taken Jwala Parshad, when a child of four or five years of age, to live in his house with the object of adopting him as his son, should Jwala Parshad prove himself to be a boy worthy of adoption as his son. Their Lordships agree with the finding of the High Court that the authority to adopt Jwala Parshad had been given. Their Lordships agree with the finding of the High Court that the authority to adopt Jwala Parshad had been given. That authority was not a general authority to Musammat Parbati Kunwar to adopt a son to Tiwari Gandharp Singh, it was a specific authority to her to adopt Jwala Parshad as the son to her husband. There remains to be considered the question of law raised by the sixth issue which had been framed by the Subordinate Judge. The Court of the Subordinate Judge of Mainpuri is a Court which is subordinate to the High Court at Allahabad, and the Subordinate Judge of Mainpuri is bound to follow the decision in law of a Bench of the High Court to which he is subordinate unless the decision of the Bench has been overruled by a decision of a Full Bench of that Court or unless it has been overruled expressly or impliedly on an appeal to His Majesty in Council, or unless the law has been altered by a subsequent Act of the Legislature. As the Subordinate Judge was well aware, it had been decided five years before this suit was instituted by a Bench of the High Court at Allahabad, composed of Sir John Stanley, the then Chief Justice, and Banerji J., in Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.), that an adoption by a Hindu widow, in virtue of an authority to adopt given to her by her deceased husband, of her brothers grandson or son is not, according to Hindu law, an invalid adoption, as the adoption by the widow is not an adoption to herself but is an adoption to her deceased husband, and that the test of eligibility of the adopted son for adoption in such case must be the test which would have applied had the adoption been made by the husband himself in his lifetime. The Subordinate Judge of Mainpuri, Chhajju Mai, professing disapproval of that decision of the High Court, which he was bound to follow, entered upon a consideration of Sanskrit texts bearing more or less upon the subject, and decided that as Musammat Parbati Kunwar could not have married her brother, the father of Jwala Parshad, the adoption of Jwala Parshad was invalid. It is difficult to follow the arguments of the Subordinate Judge, but he does not appear to have kept clearly before his mind that the question in this case was whether a Hindu widow, acting on her husbands authority, could validly adopt as a son to him the son of her brother, and was not the question as to whether a Hindu female could validly adopt to herself a son of her brother. On appeal, Sir John Stanley C.J. and Banerji J. applied the decision in Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R. 27 Allah. 417.), which had not been overruled, and accordingly decided that the adoption of Jwala Parshad was a valid adoption, and by their decree dismissed the suit with costs. From that decree of the High- Court this appeal has been brought. The foundation of the decision of the Subordinate Judge on this question of Hindu law is the Commentary of Nanda Pandita, which is known as the Dattaka Mimansa. The Dattaka Mimansa is undoubtedly a high authority on the law of Hindu adoption and is treated with respect. The authority of the Dattaka Mimansa was considered by this Board in Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma (L. R. 26 Ind. Ap. 113.) and in Bhagwan Singh v. Bhagwan Singh (L. R. 26 Ind. Ap. 153.), and the view of this Board was that the Dattaka Mimansa is a work which has had a high place in the estimation of Hindu lawyers in all parts of India and has become embedded in Hindu law, but that caution is required in accepting the glosses of Nanda Pandita, its author, where they deviate from or add to the Smritis. It was pointed out by Banerji J., in Jai Singh Pal Singh v. Bijai Pal Singh (I. L. R, 27 Allah, at p. 433.), on this question as to whether a widow can lawfully adopt to her deceased husband a son of her own brother, that Nanda Pandita in the Dattaka Mimansa extended to adoption by females the rule of Hindu law that no one can be adopted as a son whose mother the adopter could not have legally married, an extension by Nanda Pandita which is not based upon the authority of any of the Smritis or institutes of sages. As Banerji J. further pointed out in the same case, the extension of the rule by Natida Pandita is not supported by any text of the Dattaka Chandrika, or by any of the texts of the sages Sannaka and Sakala from which most of the rules of the Dattaka Mimansa were deduced. It has not been shown to their Lordships that the extension by Nanda Pandita to which they are referring has been accepted as the law in India, at least, so far as adoptions by widows to their deceased husbands are concerned. It is true that in the case of Musammat Battas Kuar v. Lachman Singh (7 N. W. P. H. C. 117.) Pearson and Spankie JJ. said "No sufficient reason is shown why the doctrine of Nanda Pandita that a woman may not affiliate a brothers son should not be accepted as correct, and why it should not apply to the case of a woman adopting a son with the sanction and on behalf of her husband. Indeed, it does not appear that the Hindu law contemplates or provides for the adoption by a widow of a son in her own right.” It was not necessary for these learned judges to express any opinion on the subject, nor is it clear how the case came on appeal to the High Court, as the two Courts below had concurrently found that it was not proved that the husband had given his wife authority to adopt a son. It is quite clear that Tiwari Gandharp Singh could, in his lifetime, have legally adopted Jwala Parshad, the son of his wifes brother, and had he done so the adoption would have been a valid adoption, and their Lordships fail to see any reason why Jwala Parshad, who was legally eligible for adoption by Gandharp Singh, should have become ineligible by reason of the death of Gandharp Singh. It must be remembered that the adoption was not by the widow in her own right and to herself; the adoption was to her deceased husband and under the authority which he had given to her. In Sriramulu v. hamayya (I. L. R. 3 Madr. It must be remembered that the adoption was not by the widow in her own right and to herself; the adoption was to her deceased husband and under the authority which he had given to her. In Sriramulu v. hamayya (I. L. R. 3 Madr. 15.) the adoption of a son of a wifes brother was held to be a valid adoption, and it was rightly pointed out that the rule of Hindu law that a legal marriage must have been possible between the adopter and the mother of the adopted boy refers to their relationship prior to marriage. In Bai Nani v. Chunilal (I. L. R. 22 Bomb. 973.) it was held that the adoption by a Hindu widow of her brothers son was valid. Their Lordships have not thought it necessary to discuss the texts and authorities which have been referred to and are relevant to this question, as they have been fully and exhaustively considered by Sir John Stanley C.J. and Banerji J. in their judgments in Jai Singh Pal Singh v. Bijai Pal Singh. (1) This appeal fails, and their Lordships will humbly advise His Majesty that it should be dismissed. The appellants must pay the costs of the appeal.