History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v1.c6.s90.34

v1.c6.s90.34

From very early days of the British rule in India the Dattaka-mīmāṁsā came to be regarded as the standard work on adoption. In *Collector of Madura v. Mootoo Ramalinga*¹⁰⁶³ the Privy Council says "Again of the Dattaka-mīmāṁsā of Nandapaṇḍita and the Dattakacandrikā of Devaṇṇabhaṭṭa, two treatises on the particular subject of adoption, Sir William Macnaghten says that they are respected all over India; but that, when they differ, the doctrine of the latter is adhered to in Bengal and by the southern jurists, while the former is held to be the infallible guide in the provinces of Mithilā and Benares." That this estimate is somewhat too strongly put has been said by the Privy Council itself in *Bhagwansingh v. Bhagwansingh*¹⁰⁶⁴ 'to call it infallible is too strong an expression and the estimates of Sutherland and of West and Bühler seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law.' The Privy Council further lays down 'their Lordships cannot concur with Knox J. in saying that their (of the Dattaka-mīmāṁsā and Dattaka-candrikā) authority is open to examination, explanation, criticism, adoption or rejection like any scientific treatises on European jurisprudence'.¹⁰⁶⁵ Even in those parts of the Bombay Presidency where the Vyavahāramayūkha is a work of paramount authority, the Dattakamīmāṁsā has on the subject of adoption been preferred in certain matters to the Vyavahāramayūkha. For example, the Bombay High Court, following the Dattaka-mīmāṁsā, has laid down that among the three higher castes a man cannot adopt his own daughter's, sister's, or mother's sister's son. The view of the Vyavahāramayūkha, on the contrary, is that he can take these in adoption. The limits to which Nandapaṇḍita will be followed by the courts are laid down in *Ramachandra v. Gopal*: 'The authority of Nandapaṇḍita must be accepted except where it can be shown that he deviates from or adds to the *smṛtis* or where his version of the law is opposed to such established custom as the Courts recognise'.¹⁰⁶⁶