JUDGMENT Rau, J. - This appeal is by defendant 1, Surabala, and defendant 2, her adopted son, Jayanta alias Suhrid, in a suit brought by the plaintiff-respondent to have the adoption of defendant 2 by defendant 1 set aside as invalid and for certain other reliefs. Both the Courts below have set aside the adoption while refusing the other reliefs. 2. Two points are raised by the appellants before us. First, it is said that the plaintiff's interest in the property held by defendant 1, Surabala, is too shadowy to enable him to obtain a declaration of the invalidity of the adoption under s. 42, Specific Belief Act. The argument is that the position of the latter in respect of that property is not that of a Hindu widow with limited powers but that of a trustee with full powers of disposal, so that if she exercises them the plaintiff as reversioner can get nothing. Now, it is true that so far as the property was derived from her father-in-law, her position is that of a trustee, what her powers under the trust deed may be we need not discuss. But according to the trial Court a portion of the property, however small, came to her by inheritance from her husband; if so, the plaintiff's reversionary interest at least in respect of this portion cannot be ignored. To get over this difficulty, the appellants point to the lower appellate Court's finding that there is nothing on record to show what property, if any, was left to her by her husband. It is to be noted however that the point now raised before us was not taken at the trial. Had it been taken the plaintiff might have produced enough evidence to satisfy even the lower appellate Court. In these circumstances this point must be decided against the appellants. 3. I now come to the main question involved in this appeal, the question, namely, whether according to the law amongst Hindus in Bengal a young man of one of the regenerate castes can be validly adopted after his upanayan ceremony (investiture with the sacred thread) has been performed in the family of his birth. In the present case the young man concerned is a Brahmin; his age at the date of adoption was 26, and his thread ceremony had, of course, already been performed. 4. In the present case the young man concerned is a Brahmin; his age at the date of adoption was 26, and his thread ceremony had, of course, already been performed. 4. On questions relating to adoption, the Dattaka Chandrika and the Dattaka Mimamsa are equally respected all over India, and where these are in conflict, the doctrine of the former is said to prevail in Bengal: ('67-69) 12 M.I.A. 397 : 1 Beng. L.R. 1 : 10 W.R. 17 : 2 Sar. 361 : 2 Suther. 135 (P.C.), Collector of Madura v. Mootoo Ramalinga. On the particular point now before us, these two authorities are not in conflict. 5. First as to the Dattaka Chandrika; the relevant rules are in paras. 20-33 of S. 2 of Sutherland's translation. 6. Paragraph 20 lays down that the samskaras or sacraments which have not been performed by the natural father must be performed by the adopter, but not those already performed. Paragraphs 21 and 22 explain the reason and the object of this rule. Then follows para. 23: And accordingly, if the rite of investiture merely be performed, the filiation of the son given, as son of the adopter, is completed in conformity with the text of Vasistha subjoined.... The meaning is evidently that the sacraments previous to investiture (upanayana) such as tonsure, need not be performed by the adopter; it is sufficient if he performs that upanayana ceremony. This is enough to complete the filiation. Paragraph 24 deals with the dwyamushyayana son and is not relevant to the present discussion. Paragraph 25 cites certain verses reputed to be from the Puranas (the reference is doubtless to the Kalika Purana) and winds up with the remark that they are unauthentic. In paras. 26-28 the author goes on to say that even if the verses are regarded as authentic, the interpretation usually put upon them is incorrect and he proceeds to indicate two alternative interpretations. As one of these throws some light on the author's views on the question now before us, it deserves examination. For this purpose it is convenient to have the actual verses in front of us: (The text is that given in Mr. J.C. Ghose's "Principles of Hindu Law," 1919.) I may ob. serve incidentally that the third verse quoted above is slightly different from that which appears in the Dattaka Mimamsa. The Dattaka Mimamsa version as given in Mr. For this purpose it is convenient to have the actual verses in front of us: (The text is that given in Mr. J.C. Ghose's "Principles of Hindu Law," 1919.) I may ob. serve incidentally that the third verse quoted above is slightly different from that which appears in the Dattaka Mimamsa. The Dattaka Mimamsa version as given in Mr. Ghose's collection runs: 7. Leaving the third verse out of account for the present, I would observe that the ordinary interpretation of the first two verses (which is also the interpretation put upon them by the author of the Dattaka Mimamsa) is in substance this, verse (1): A son who is initiated in the family of his natural father "unto the ceremony of tonsure inclusive" that son cannot become the son of another by adoption. Verse (2): If the sacraments "beginning with the ceremony of tonsure" are performed in the adopter's own family, the adoptee counts as his son; otherwise he is termed a slave. (I have given a free rendering of the verses so as to make the meaning clear.) Thus rendered, the verses make the ceremony of tonsure the decisive factor and not the upanayana ceremony: if tonsure and the antecedent ceremonies have been performed in the family of birth, the boy cannot be adopted but if-and only if-tonsure and the subsequent ceremonies are performed in the family of adoption, the boy counts as an adopted son. 8. The author of the Dattaka Chandrika considers this rendering inaccurate and offers two alternatives. The second of the two is of immediate interest to us. As regards the first verse, the author construes the words with the words that precede instead of with the words that follow and the remarkable result is reached that the verse means exactly the opposite of what it is usually supposed to mean. Instead of meaning that a son whose sacraments down to tonsure have been performed in the family of birth cannot become a son elsewhere by adoption, it really means, according to the author, that a son is no son in the family of his birth even if his sacraments down to tonsure have been performed, because he can become a son elsewhere by adoption. Then, as to the second verse, the author construes the compound word as meaning not sacraments beginning with tonsure but as sacraments beginning after tonsure. Then, as to the second verse, the author construes the compound word as meaning not sacraments beginning with tonsure but as sacraments beginning after tonsure. Whether these liberties can be taken with the language of the verses is a matter with which we are not concerned at present: what concerns us now is whether the resulting interpretation sheds any light on the author's own views. I think it does. The first verse, as construed in the above manner, brings out very clearly the author's view that the performance of the tonsure (and the sacraments antecedent to tonsure) in the family of birth is not at all an impediment to subsequent adoption. The second verse, if we construe as the author suggests, would mean that if the sacraments beginning after tonsure-that is to say, beginning with upanayana in the case of the regenerate castes-are performed in the adopter's own family, the adoptee becomes a son in that family, otherwise he is termed a slave . These last words are important; the author has not sought to explain them away, as he has sought to explain away other words, he therefore seems to accept the position that unless the sacraments beginning after tonsure are performed in the family of the adopter, the adoption is infructuous. We thus get a step further than in para. 23: the performance of the upanayana ceremony (in the cage of the regenerate castes) by the adopter is not only sufficient but is also necessary to complete filiation. Reading this with para. 20 (wherein it is said that sacraments "already performed by the natural father are not to be cancelled") we arrive at the conclusion that if the upanayana ceremony has already been performed before adoption, the adoption cannot be effective. 9. Paragraph 30 explains away the five-year age-limit mentioned in the third verse from the Kalika Purana, while para. 33 appears to do away with all age-limits as such, for it says "And thus the practice of all the ancients even, in respect to the adoption of a son, unlimited to any time is upheld." The net result of the rules appears to be: (1) There is no age-limit as such for adoption. 33 appears to do away with all age-limits as such, for it says "And thus the practice of all the ancients even, in respect to the adoption of a son, unlimited to any time is upheld." The net result of the rules appears to be: (1) There is no age-limit as such for adoption. (2) But it is essential that all post-tonsure ceremonies (beginning with upanayana in the case of the regenerate castes and marriage in the case of Sudras) must be capable of being performed and must be performed in the family of the adopter. As a corollary to (2) it follows that where the upanayana ceremony has already been performed in the family of birth, no valid adoption can be made. 10. The views of the author of the Dattaka Mimamsa are easier to disentangle and are of a much more pronounced character. He relies on the verses from the Kalika Purana already cited and deduces therefrom three rules which, following Mayne (9th Edn. para. 140) we may put thus : first, that the limit of age as not exceeding five is absolute; secondly, that one who has had the tonsure performed ought not to be adopted, as he will at the outset be the son of two fathers; but thirdly, if no other is procurable, a boy on whom tonsure has been performed may be received, provided, however, that the previous rites be annulled by the performance of the putreshti or sacrifice for male issue. These rules leave no room for the adoption of a boy whose upanayana ceremony has already been performed. 11. Turning to other authorities, we find that Jagannatha accepts the puranic verses as literally binding and does not recognise the adoption of a boy who has either completed the fifth year or upon whom the tonsure ceremony has already been performed. A fortiori, the adoption of a boy whose upanayana ceremony has already been performed would be invalid in his views. Smriti authority on this particular question appears to be confined to a text of Vasistha's quoted by the authors of the Dattaka Chandrika and the Dattaka Mimamsa: Sprung from one following a different Sakha (or. A fortiori, the adoption of a boy whose upanayana ceremony has already been performed would be invalid in his views. Smriti authority on this particular question appears to be confined to a text of Vasistha's quoted by the authors of the Dattaka Chandrika and the Dattaka Mimamsa: Sprung from one following a different Sakha (or. branch of the Vedas) the Dattaka son even when invested with the sacred thread under the family name of the adopter himself, according to the form prescribed by his peculiar Sakha becomes a participant of the Sakha of the adopter. It can hardly be claimed that this text lays down a rule that the upanayana ceremony must always be performed in the adopter's family: e.g., where the adopter and the adoptee belong to the same Sakha. Smriti authority must therefore be held to be inconclusive on this particular point. 12. Turning to the case law on the subject, we find an early Bengal decision: (1838) 6 S.D.A. 219, Bullubkant Chowdree v. Kishenprea Dassea Chowdrain. This was in 1838. The Pundit of the Court was asked: Is adoption restricted to any particular age by the Shastras? And if so, is the law respecting the particular age applicable to all or only to some of the Hindoo tribes? The answer, purporting to be based on the Dattaka Mimamsa, was that the period fixed for adoption with respect to the three superior tribes Brahmins, Kshatriyas and Vaisyas was prior to their investiture with the respective cords, and with respect to Sudras, to their contracting marriage. The case was decided accordingly. The decision appears to have been affirmed in subsequent cases and so far as I am aware has never been departed from. 13. Whatever may be the position in other parts of India, it seems to result from the sources deemed authoritative in Bengal that an adoption made after the upanayana ceremony has already been performed in the family of birth is not valid. The view taken by the Courts below is therefore correct and the appeal must be dismissed. The parties will bear their own costs throughout. The cross-objections are not pressed and are also dismissed. B.K. Mukherjea, J. 14. I agree with my learned brother in holding that this appeal should be dismissed. Two points which have been raised by Mr. The view taken by the Courts below is therefore correct and the appeal must be dismissed. The parties will bear their own costs throughout. The cross-objections are not pressed and are also dismissed. B.K. Mukherjea, J. 14. I agree with my learned brother in holding that this appeal should be dismissed. Two points which have been raised by Mr. Gupta on behalf of the appellants and which require determination in this appeal are as follows: (1) Whether in view of the findings arrived at by the Courts below the plaintiff is entitled to any declaration, under S. 42, Specific Belief Act, that the adoption of defendant 2 as a son by defendant 1 is in valid in Hindu law. (2) Whether according to Hindu law as it is applied in Bengal the adoption is really invalid by reason of the fact that the parties belonged to a twice born class and the adoptee who was 27 years of age at the time of adoption had his ceremony of upanayan or investiture with sacred thread already performed in the family of his birth. 15. As regards the first point, it cannot be disputed that it is permissible for a presumptive reversioner under Hindu law to file a suit during the lifetime of the female owner for a declaration that an adoption made by her is invalid. This right has been expressly recognized in Illust. (f) to S. 42, Specific Relief Act. It is true that the reversionary heir has only a contingent interest in the property which is nothing more than a mere possibility or spes successions, but as has been held by their Lordships of the Judicial Committee in ('15) 2 AIR 1915 P.C. 124 : 29 I.C. 298 : 38 Mad. 406 : 42 I.A. 125 (P.C.), Venkatanarayana Pillai v. Subbammal, the suit by the presumptive reversioner in such cases is really a representative suit brought on behalf of the whole body of possible successors and the right to sue is based on the danger to the inheritance common to all the reversioners which arises from the nature of their rights. 406 : 42 I.A. 125 (P.C.), Venkatanarayana Pillai v. Subbammal, the suit by the presumptive reversioner in such cases is really a representative suit brought on behalf of the whole body of possible successors and the right to sue is based on the danger to the inheritance common to all the reversioners which arises from the nature of their rights. The adoption of a son by a Hindu widow endangers the title of the next in succession and a suit can be instituted by the reversioners to remove what would be a bar to their rights when they vested in possession: vide Mayne's Hindu Law, s. 678, p. 816. Mr. Gupta does not assail the propriety of this view in any way; what he says is, that according to the findings arrived at by the Courts below, defendant 1 is in possession of the properties specified in the schedule to the plaint not in the capacity of an heir to the last male owner but as a trustee and beneficiary under the trust deeds executed by Kamini Kumar Mukherjee to whom the properties belonged. She has neither the limited interest of a Hindu female heir in the property nor is the plaintiff a presumptive reversioner in relation to her. The principle of law which entitles a reversioner to maintain an action for declaration against a widow when her acts are injurious to the reversion has no application, therefore, to the facts of the present case. Both the Courts below have held that the trust deeds executed by Kamini Kumar, the validity of which was impeached by the plaintiff are legal and operative documents. This finding has not been seriously challenged by the learned advocate appearing for the plaintiff respondent. So far as the properties comprised in the trust deed are concerned, it must be held therefore that defendant 1 is holding them not as an heir to her husband who did not inherit these properties at all from Kamini but in her own rights as a trustee and beneficiary under the trust deeds of Kamini. With regard to these properties the plaintiff cannot be said to occupy the position of a reversionary heir under the Hindu law which would entitle him to have a declaration during the life time of the widow. With regard to these properties the plaintiff cannot be said to occupy the position of a reversionary heir under the Hindu law which would entitle him to have a declaration during the life time of the widow. In answer to this, the learned advocate appearing for the respondent points out, that quite apart from the properties comprised in the trust deeds of Kamini, there were other properties belonging to Jiban personally which were inherited by defendant 1 after his death. In respect to these properties which are also the subject-matter of the suit, the position of the plaintiff is certainly that of a reversioner under the Hindu law and as such he can pray for a declaration that the adoption made by the widow is invalid. 16. Now it appears from the judgment of the trial Court that Jiban, the husband of defendant 1, did acquire some properties as a legatee under the will of his grand-mother Anandamoyee Debi. Jamini, the father of the plaintiff was the executor under that will and he took out probate which has been made an exhibit in this case. In prayer (Ga) of the plaint the plaintiff prayed for a permanent injunction restraining defendants 1 to 3 from committing waste in respect of any of the properties which Jiban got either by inheritance from his father or under the will of his paternal grand-mother. One of the issues in the suit, viz., issue 7 was worded as follows: Is defendant 1 in possession of the estate left by Kamini Kumar Mukherjee as a trustee? If so, is the suit maintainable? The learned trial Judge in deciding this issue observed at the outset that the plaintiff brought the suit on the assumption that Surabala was in possession of the estate in her widow's right and ignored her possession as a trustee altogether. Surabala according to the Subordinate Judge held the estate of Kamini Babu as a trustee under the trust instruments though she had a Hindu wife's interest in some small properties belonging to Jiban personally. As the bulk of the properties were included in the trust deed, the Subordinate Judge was of opinion that the proper way of restraining the trustee from committing acts of indiscretion or waste would be by taking action under the provisions of the Trusts Act and the present suit was not maintainable. As the bulk of the properties were included in the trust deed, the Subordinate Judge was of opinion that the proper way of restraining the trustee from committing acts of indiscretion or waste would be by taking action under the provisions of the Trusts Act and the present suit was not maintainable. The Subordinate Judge further observed: The plaintiff as a next reversioner can of course question the validity of adoption by Surabala and sue for injunction in respect of the properties left by Jiban in which Surabala as widow has only life interest. In the ordering portion of the judgment, as well as in the decree the only relief given to the plaintiff was that the adoption of defendant 2 as a son by defendant 1 was set aside; and the prayer for injunction was not allowed even in respect of properties which were held by Surabala as heir to her husband. This decree was affirmed on appeal by the Additional District Judge of Dacca. In the concluding portion of the judgment the lower appellate Court observed as follows: There is nothing on record to show in particular what property, if any, Jiban left in his individual capacity, that is, not as trustee or a beneficiary under the trust deed. So no question regarding Jiban's personal properties arises in this case and moreover, there is nothing to show what personal properties, if any, of Jiban or his brother Sisir have come to the possession of their widows. This finding of the Additional District Judge has been assailed by the learned advocate appearing for the respondent. It is true that the lower appellate Court did not advert to Ex. G which was produced on behalf of the defendants and which would go to show that Anandamoyee did execute a will giving certain properties to Jiban. It may be that as the plaintiff's substantial case was that the trust deeds executed by Kamini were illegal and all the properties were possessed by defendant 1 in the limited interest of a Hindu widow he did not make a serious attempt to make a separate case with regard to the small personal properties left by Jiban. It may be that as the plaintiff's substantial case was that the trust deeds executed by Kamini were illegal and all the properties were possessed by defendant 1 in the limited interest of a Hindu widow he did not make a serious attempt to make a separate case with regard to the small personal properties left by Jiban. On the other hand, it appears that the defendants did not raise this point specifically in any of the Courts below that the plaintiff was not entitled to a declaration under s. 42, Specific Relief Act, and there was no issue framed on this point. It seems to me that if this question had been pointedly raised, the Courts below could have adverted more fully into the matter and discussed the evidence on the record in order to arrive at a clear finding upon it. As admittedly there were some properties left by Jiban which are also the subject-matter of the suit I am Unable to say that the plaintiff's suit for declaratory relief under s. 42, Specific Relief Act, should be thrown out. 17. The other point taken in this appeal raises an interesting question of Hindu law relating to limitations upon the right of adoption arising from age of the adoptee or the previous performance of initiatory ceremonies in his natural family. In the present case, it is not disputed that at the time when defendant 2 was taken in adoption by defendant 1 he was nearly 27 years of age and was already invested with sacred thread in the family of his birth. The question is whether such adoption is valid according to Hindu law as is recognized in this province. 18. Mr. Gupta is right in saying that neither the Smritis nor the original commentators lay down any rule relating to age of a person which restricts his capacity of being adopted. Certain restrictions have undoubtedly been introduced later on and they are to be found in comparatively later treatises on the subject like Dattaka Mimamsa and Dattaka Chandrika. 18. Mr. Gupta is right in saying that neither the Smritis nor the original commentators lay down any rule relating to age of a person which restricts his capacity of being adopted. Certain restrictions have undoubtedly been introduced later on and they are to be found in comparatively later treatises on the subject like Dattaka Mimamsa and Dattaka Chandrika. Both these are special works on the law of adoption and partly because they were very early accessible to English Judges from being translated into English by Sutherland but mainly because they were spoken of in very high terms by the Judicial Committee in more cases than one, they have come to possess an authority and importance which perhaps they would not otherwise have deserved. The Privy Council in ('67-69) 12 M.I.A. 397 : 1 Beng. L.R. 1 : 10 W.R. 17 : 2 Sar. 361 : 2 Suther. 135 (P.C.), Collector of Madura v. Mootoo Ramalinga accepted the opinion expressed by Macnaghten that both these treatises are respected all over India and in cases of difference between them the doctrine of Dattaka Chandrika is adhered to in Bengal and the southern provinces while Dattaka Mimamsa is held to be an infallible guide in the Province of Benares and Mithila. There is no doubt an acute controversy both among lawyers and Pandits regarding the authority of these works and there is a persistent tradition in Bengal that the Dattaka Chandrika is a literary forgery and in fact it was the work of one Raghumani Vidyabhusan who was the spiritual preceptor of the Nadia Raj family. The Judicial Committee, however, in ('99) 22 Mad. 398 : 26 I.A. 113 : 21 All. 460 : 9 M.L.T. 67 : 7 Sar. 330 (P.C.), Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma clearly laid down that the authority of these works was not open to examination, explanation, criticism, adoption or rejection like any scientific treatise on European Jurisprudence. Such treatment would not allow for the effect which long acceptance of written opinions has upon social customs and it would probably disturb recognized law and settled arrangements. 19. Let us see how the subject has been dealt with in these two Dattaka works. Nanda Pandit while discussing the qualifications of the person to be adopted refers to a special rule which he says is propounded in the Kalika Puran. 19. Let us see how the subject has been dealt with in these two Dattaka works. Nanda Pandit while discussing the qualifications of the person to be adopted refers to a special rule which he says is propounded in the Kalika Puran. The verses in the Kalika Puran referred to by him read as follows: (Dattaka Mimamsa s. IV, 22) 20. The following is the English rendering of these verses as given in Sutherland's translation of Dattaka Mimamsa: (1) Sons given, and the rest though sprung from the seed of another, yet being duly initiated under his own family name become sons. (2) O Lord of the earth, a son, having been initiated under the family name of his father, unto the ceremony of tonsure inclusive does not become the son of another man (Anyatas). (3) The ceremony of tonsure and other rites (Chudadya) of initiation, being indeed performed, under his own family name, sons given and the rest may be considered as issue: else, they are termed slaves, (4) After their fifth year, O King, sons given, and the rest are not sons. But having taken a boy, five years old, the adopter should first perform the sacrifice for male issue. 21. These passages have been elaborately commented upon by Nanda Pandit and the conclusions arrived at by him may be summed up as follows: (1) The relationship of father and son is created by due performance of initiatory ceremonies, and the adopted son becomes the son of the adopter by reason of the performance of these ceremonies in the family of the latter (S. IV, 23). (2) Consequently, a boy for whom none of the initiatory ceremonies have been performed by the natural father is most eligible for adoption. Next to him is he whose ceremonies after birth and not including Chura have been performed (S. IV, 38). (3) That son who is initiated under the family name of his natural father, unto the ceremony of tonsure, that is, in rites ending with tonsure does not become the son of another by adoption (IV, 30). 22. Such a son according to Nanda Pandit may be taken in adoption if his age does not exceed five years. In such cases, it is necessary to perform Putreshti ceremony, but even then he ranks only as Dwyamushyana or son of two fathers (IV, 32). 22. Such a son according to Nanda Pandit may be taken in adoption if his age does not exceed five years. In such cases, it is necessary to perform Putreshti ceremony, but even then he ranks only as Dwyamushyana or son of two fathers (IV, 32). (4) A boy whose age exceeds five years cannot be taken in adoption at all. 23. The author of Dattaka Chandrika in discussing the law on the point proceeds upon different lines altogether. First of all, he combats the view that filial relation is created by performance of initiatory ceremonies. It is the father alone who by virtue of his relationship as father to the son is competent to perform the initiatory ceremonies. The adoptive father therefore can perform those ceremonies which are necessary to be performed subsequent to adoption and which have not been performed in the family of birth. The repetition of ceremonies already performed by the natural father is not required (S. II, 20 and 21). 24. In the next place, Dattaka Chandrika does not accept the authenticity of the passages in Kalika Puran upon which reliance is placed by Nanda Pandit. Accepting these texts to be genuine, the author of Dattaka Chandrika expresses the opinion that they do not bar the adoption of a child whose tonsure has already been performed in the family of birth and who may be more than five years old (S. II, 26.) The second verse of Kalika Puran according to him does not mean that a boy upon whom ceremonies up to and including tonsure have been performed by the natural father cannot become the son of another; what it means is that "a son" (that is, adopted son) though initiated as far as tonsure by his natural father is not a son (to such father), the reason being that he bears filial relation to another (II, 28). The word "Chudadya" in the third couplet is interpreted by Dattaka Chandrika to mean not ceremonies up to and including tonsure, but ceremonies which are preceded by tonsure and which means upanayan in the case of the three regenerate castes and marriage in the case of Sudras (II, 29). The word "Chudadya" in the third couplet is interpreted by Dattaka Chandrika to mean not ceremonies up to and including tonsure, but ceremonies which are preceded by tonsure and which means upanayan in the case of the three regenerate castes and marriage in the case of Sudras (II, 29). This makes it conformable to the following text of Vasishtha which is quoted in Dattaka Chandrika, viz.: Sprung from one following and different sakha (or branch of the Vedas) the given son even, when invested with characteristic thread, under the family name of the man himself, according to the form prescribed by his peculiar sakha, becomes participant of the duties of such sakha. 25. Lastly, it is said that the mention of five years in the text of Kalika Puran has reference to a Brahmin who is intended for the study of theology and for whom investiture with sacred thread at the age of five years is prescribed. The conclusion of Dattaka Chandrika seems to be that there is no limit of any particular time regarding adoption and the only restriction is that the ceremony of upanayan in the case of the three higher castes and marriage in the case of Sudras must be capable of being performed in the family of adoption. 26. In one passage Dattaka Chandrika seems to have suggested that the adoption must take place before the primary age prescribed for upanayan expires, which is eight years from conception in the case of Brahmins and 11 and 12 years in the case of Kshatrias and Vaisyas respectively. The view expressed is that although the Upanayan ceremony can be performed in the secondary season yet as the relationship of father and son was wanting between the adopter and the adoptee at the primary season the adoptive father cannot perform these ceremonies at the secondary season. Sutherland, however, in commenting upon Dattaka Chandrika has pointed out that the non-performance of upanayan ceremony at the proper season is not an insuperable bar to adoption and it can be performed in the family of adoption if the Putresthi ceremony is gone through as a form of expiation. 27. Mr. Sutherland, however, in commenting upon Dattaka Chandrika has pointed out that the non-performance of upanayan ceremony at the proper season is not an insuperable bar to adoption and it can be performed in the family of adoption if the Putresthi ceremony is gone through as a form of expiation. 27. Mr. Gupta argues that the performance of upanayan ceremony in the family of birth cannot be a bar to an adoption for the passage of Vasishtha upon which Dattaka Chandrika relies goes to show that investiture with sacred thread in a particular family means affiliation to the particular sakha or branch of the Vedas which is followed by that family. Difficulties may arise when a different sakha is followed by the family of adoption. But if both the families have the same sakha, upanayan in the family of birth cannot create any impediment whatsoever. It is true that in ancient times upanayan really marked an entry into the period of study and each family purported to follow a particular sakha or branch of the Vedas, These things, however, become totally obsolete later on, though the names of the sakhas are still preserved as matter of tradition. But quite apart from that, the text of Vasistha simply lays down the consequence of adoption, and the effect according to him is that even though the family, of the adopter followed a different sakha the adopted son after adoption becomes completely merged in the family of the adopter and becomes affiliated to the sakha of the latter. To have that effect, it is necessary that the adoptee should be invested with sacred thread in the family of the adopter. The text is relied upon by Dattaka Chandrika as an authority for the view taken by him that the expression "Chudadya" as used in the Kalika Puran means upanayan and not any ceremony previous to that. The conclusion therefore is that according to Dattaka Chandrika it is absolutely necessary that in the case of the three twice-born classes the adoption must take place before the boy is invested with sacred thread and necessarily an adoption after upanayan is performed in the family of birth is inoperative. 28. The conclusion therefore is that according to Dattaka Chandrika it is absolutely necessary that in the case of the three twice-born classes the adoption must take place before the boy is invested with sacred thread and necessarily an adoption after upanayan is performed in the family of birth is inoperative. 28. There is no standard work on the subject of adoption expressly for Bengal yet as Macnaghten pofnts out that in cases of difference between Dattaka Mimamsa and Dattaka Chandrika, the doctrines of the latter conform to those of Bengal: vide Macnaghten's Hindu Law, p. 74. Among other Bengal authorities Jagannath in his Digest also refers to the passages in Kalika Puran and he interprets them even more rigidly than Nanda Pandit. According to him, there may not be a valid adoption of a boy who has either completed fifth year or upon whom the ceremony of tonsure has already been performed: vide Colebrooke's Digest, Book V. 293. 29. The Bengal Pandits do not seem to have ever given effect to the strict view of Nanda Pandit even when they quote him as authority. In (1806) 1 Beng. Sel. Rep. 213, Kerut Narayan v. Mt. Bhovinesree, there was a claim by the daughter of a deceased Hindu to recover his estate from a son adopted by his widow. The ground alleged on behalf of the plaintiff was that the adoption was invalid as it was made when the boy was 8 years old. The point was referred to the Pandit of the Zilla Court who gave an opinion that a boy who is under 5 years of age and whose head has not been shaved with the usual formalities in his own family is the fittest for selection; but if the tonsure ceremony is performed in the family of adoption the selection indeed is improper but the adoption is not invalid. The Zilla Judge accepted this opinion and dismissed the plaintiff's suit. On appeal to the Provincial Court, this decision was reversed the Pandit of that Court being of opinion that the adoption of a child above 5 years of age was absolutely illegal. The matter came up in second appeal to the Sadar Dewani Adalat and the Pandits of that Court agreed in the view taken in the Zillah Court that such an adoption though improper was not invalid in law. The matter came up in second appeal to the Sadar Dewani Adalat and the Pandits of that Court agreed in the view taken in the Zillah Court that such an adoption though improper was not invalid in law. The result therefore was that the decision of the Zilla Court was restored. In (1830) 5 Beng. Sel. Rep. 61, Mt. Dullabh Dey v. Manu Biby, it was held in conformity with the opinion of Pandits that the age of 5 years does not limit the period of eligibility for adoption. In this case, it appears that the adoptee was more than 5 years of age but the ceremony of tonsure was performed by the natural father subsequent to adoption. This was held to be an indifferent act done by a stranger who had no rights whatsoever. The Judge who decided the case in the Court below remarked in his judgment: From the translation of Dattaka Chandrika it appears that among Brahmins and Kshatriyas adoption of a boy whose age exceeded 5 years (if uninvested with characteristic cord) was legal. This decision was pronounced in the year 1830. The point came up for consideration again 8 years later in (1838) 6 Beng. Sel. Rep. 271, Bullav Kant v. Kishen Prea Dasi. One of the two questions that were referred to the Pandits of the Sadar Court was as follows: Is adoption restricted to any particular age by the Shastras and if so, is the law respecting the particular age applicable to all or only to some of the Hindu tribes? The answer given to this question was that the period fixed for adoption with respect to the three superior tribes Brahmins, Kshatriyas and Vaisyas was prior to the investiture with their respective cords: with respect to Sudras to their contracting marriage. The Pandits purported to quote certain passage from Dattaka Mimamsa but they were really taken from Dattaka Chandrika which laid down that the expression "chudadya" occurring in Kalika Puran means commencing with upanayan in the case of three higher castes and marriage in the case of Sudras. This decision was followed in (1853) S.D.A. 553, Rani Nitra Dayee v. Bholanauth. There is no other reported decision since then where a contrary view has been taken. The view of Dattaka Chandrika as enunciated above can certainly be said to conform to the usages in this province. 30. This decision was followed in (1853) S.D.A. 553, Rani Nitra Dayee v. Bholanauth. There is no other reported decision since then where a contrary view has been taken. The view of Dattaka Chandrika as enunciated above can certainly be said to conform to the usages in this province. 30. Among the other High Courts in India the question was considered by the Allahabad High Court in ('87) 9 All. 253, Ganga Sahai v. Lekhraj, where Mahmood J. discussed all the relevant authorities of Hindu law on this point with elaborate fullness. It was held that the authority of the test of Kalika Puran which lays down that a child must not be adopted whose age exceeds 5 years was extremely doubtful. Even assuming it to be genuine, the interpretation given to the text in the Dattaka Mimamsa was not necessarily intended to be universally applicable and admits of a construction which would confine an application of the text to Brahmins intended for the priesthood; and according to Hindu law as observed by the Benares School the ceremony of upanayan representing as it does the second birth of the boy and the beginning of his initiation in the duties of his tribe is also the ultimate limit of time when a valid adoption in the Dattaka form can take place. This view has been followed by the Patna High Court in ('23) 10 Raja Makund Deb Vs. Sri Jagannath Jenamoni, AIR 1923 Patna 423 Chandreshwar Prasad Narain Singh Vs. Bisheshwar Prasad Narain Singh, AIR 1927 Patna 61 . In ('13) 35 All. 263 : 18 I.C. 960 : 11 A.L.J. 293, Jhunka Prasad v. Nathu, it was held that among the Abirs (who are Sudras) the adoption of a son after marriage is not permissible. In Madras, several exceptions have been engrafted upon the rule on the basis of custom and according to such custom the adoption of a boy of the same gotra even after his upanayan has been performed in the family of birth is valid but not after his marriage: vide Mayne's Hindu Law, Edn. 10, p. 249. In "Western India, the view taken from the beginning is different and it does not recognise any restriction arising out of age or initiatory ceremonies in the family of birth. 10, p. 249. In "Western India, the view taken from the beginning is different and it does not recognise any restriction arising out of age or initiatory ceremonies in the family of birth. So far as this province is concerned, it may be said therefore that the view has been uniformly held that the adoption of & son belonging to the twice-born classes after he is invested with sacred thread in the family of his birth is not valid. I accordingly agree with my learned brother that the decision of the Court below is right and this appeal should be dismissed.