vyAvASTHA DARPÁNA. §3S 520. As an only son, so also an eldest son, must not be given in adoption, پیج छे although several sons exist.” An only son must not be given (or accepted.) For Fashishtha ordains: ‘I,’t no man give or accept an only son.' Nor, though a numerous progeny exist, should an eldest son be given for he chiefly fulfils the office of a son; as is shown by the following text: “By the eldest son, as soon as born, a man becomes the father of male issue.”—ilitikshará, ch: I. Seet. XI, § ] ], is 310. But according to the modern lawyers, a brotherless boy, he he the eldest, middle, or youngest son of his father, may be adopted, even though he have no brother's son in existenco — inasmuch as in the following and other texts : “An only son, let no one give or accept; for he is to continue the line of his ancestors,” &c., the gift of an only son is prohibited in the apprehension of extinction of the giver's race, and discontinuance of presentation of the oblations of food and libations of water; and the receiver too is prohibited to accept such son because he ought not to do such injury to the giver, so this cannot be construed to invalidate the adoption; all that can be concluded from such prohibition is, that the giver as well as the receiver would in so, doing commit a sinful act. Ju like manner, the prohibition against giving an eldest son in adoption being grounded on the deprivation of the benefit derivahle from the rites performed by the son, the gift cannot be void, but the giver would cominit a greater sin in giving his eldest son in adoption,” as said in the Dattaka-mirnoyu, There is, however, no prohibition against adopting an only son in the Dwyámushyāyana form; ni, the contrary, his adoption in that form is recognised in the law itself—See the section treating of the buyánushvāyana adoption. (u) ‘Not disqualified"--that is, the boy to be adopted must be exempt from any disqualifica tion which might prevent him from fulfilling the purpose of adoption.t
- An oldest son is forbidden to be given in adoption ; but some authorities make oxception to vhu.---Str. H. L. vol. II p. 81. See Maen. H. I,. vol. I. pp. 67 &. 77; and ante, pp. 924, 926.
Such are, in this respect, the restrictions inculcated, but not always enforced; since, as in other instances, so with regard to both these prohibitions respecting an eldest and an only son, where they most strictly apply, they are directory only; and an adoption of either, however blainable in the giver, would nevertheless, to every legal purpose, be good; according to the maxim of the civil law, prevailing perhaps iu mo code more that iu tllat of the Hitidus, 'factum talet, quod fieri non debuit.--Sir. H. J,. vol. I p. 75.
- It is an obvious inference, that the person selected should be exempt from any disqualification, which might prevent him from fulfilling the purpose of the adoption,-Sutherland's Synophis, head second, § 3.
\ yavastha Reruark
