Thirumaleshwara Bhatta Being Minor By Next Friend Shanker Bhatta v. Kashimutt Ganpayya And Others.

(Delivered by Ramaswami, J.)

These are two connected appeals preferred against the decree and judgment of the learned District Judge of South Kanara in A.S No. 216 of 1945 arising from O.S No. 76 of 1943 on the file of the Subordinate Judge's Court, South Kanara.

The facts of this case can be easily followed if we take on hand the geneological tree appended below:

The information given by this geneological tree has to be completed by bearing in mind the following facts: Shankernarayana Bhatta died in 1927 and his widow Laxmi died in 1941, Shankernarayana Bhatta's son Thimmanna Bhatta had died unmarried during his father's lifetime and his daughter Shankari who was the first wife of the first defendant Shanker Bhatta died on 9-8-1943. Sankamma, the paternal grandmother of Shankari died after the disposal of the first appeal on 20th May 1949.

It is unnecessary to re-set the multifarious controversies between the parties set out in the judgments of the lower Courts because the contest has resolved itself now into a single question of fact and law regarding the two adoptions which are said to have been made in the case of the appellant in S.A No. 1823 of 1947, namely, Tirumaleshwara Bhatta, minor by next friend Shanker Bhatta.

The controversy before us is simple, namely, if either the alleged adoption of Tirumaleshwara Bhatta in the first instance on 12-7-1943 is believed or the second adoption dated 29-101944 is accepted as having been validly made with the adoptive mother as the then deceased Shankari, then this Tirumaleshwara Bhatta would be entitled to succeed and his opponents, the next reversioners of the deceased Shankernarayana Bhatta or the now deceased Sankamma, would not be entitled to succeed to the considerable landed properties situated in four villages and which are the root cause of all this trouble between the parties.

There is no dispute before us that the next reversioners, namely, the plaintiff in the suit O.S No. 76 of 1943 and the second defendant there in would be entitled to take all these properties on the death of Shankari and Sankamma but for the intervention which is set up by the husband of that Shankari, namely, that Tirumaleshwara Bhatta had been adopted by him (Shanker Bhatta) while his wife Shankari was alive namely, on 12th July 1943, because Shankari died on 9th August 1943.

In regard to this alleged adoption of Tirumaleshwara Bhatta on 12th July 1943, if it is believed as a fact no further point of law is involved because he would have been adopted to this Shanker Bhatta with Shankari as the adoptive mother. On the evidence, however, it has been found by both the Courts below that this adoption set up as having taken place on 12th July 1943 is false. In these second appeals the learned Advocate for Tirumaleshwara Bhatta once more pressed this point. He has not been able to convince us that the conclusion of the lower Courts is incorrect. On the other hand, the lower Courts have come to this conclusion on ample and satisfactory evidence which may be briefly recapitulated as follows. This Shanker Bhatta, the alleged adopted father, sought to prove this adoption on 12th July 1943 by means of oral, documentary and circumstantial evidence.

(a) Oral Evidence: D.Ws 3, 4, 6 and 8 were examined as witnesses for proving this adoption. D. W. 4 is the first defendant and D.W 8 is Panjugadde Govinda Bhatta and these witnesses were found to be, in the words of the learned Subordinate Judge, interested witnesses and their evidence had got to be accepted with reserve. The learned Subordinate Judge observes:

“I was not favourably impressed with the evidence of Krishna Kedlaya (D.W 3) arid D.W 6 A. Krishna Bhatta, and they did not impress me as witnesses of truth. They seem to have been merely pressed into service. D.W 6 is a purohit of the first defendant.”

The cross-examination of D.W 6 bears internal evidence that he could not have officiated at any Dattahomam as alleged by him. Therefore the learned Subordinate Judge rightly concluded that the evidence of D.Ws 4, 6 and 8 did not afford sufficient and satisfactory proof of the factum of adoption. These observations of the learned and experienced Subordinate Judge have not been shown to be either incorrect or inadequate. The learned District Judge has agreed with this appreciation of the evidence and states in this judgment:

“The learned Subordinate Judge has dealt with this question at great length and I am in full agreement with him that the adoption alleged to have taken place on this date has not been proved.”

(b) Documentary Evidence: The documentary evidence in this case does not consist of any adoption deed or any printed invitation for the ceremony, though the parties were socially respectable people and accustomed to issue such invitation cards as I shall show presently, or any contemporaneous record like the mutation of revenue registry. On the other hand, the only piece of documentary evidence is said to be an application to the Tahsildar of Puttur Taluk for the supply of sugar: Vide Ex. D.9 It is to the effect that Shanker Bhatta and his wife Shankari wanted to adopt Tirumaleshwara Bhatta, son of Govinda Bhatta on 12th July 1943 and that permission should be granted fer one maund of sugar necessary in connection with the Homam. The learned Subordinate Judge in paragraph 28 of his judgment has closely analysed this Ex. D-9 and came to the conclusion that it was a spurious document not properly proved by even examining the Tahsildar and that it was merely an attempt to fabricate evidence. We see no reason to differ. Therefore, the documentary evidence in this case is nil.

(c) Circumstantial Evidence: Turning to the circumstantial evidence, it was sought to be made out by this Shanker Bhatta that Shankari was suffering from tuberculosis a wasting disease, that she therefore despaired of living and that therefore it was natural for her to think of adoption before her death as she had considerable properties devolving from her father Shankernarayana. In support of this D.W 9 Dr. Umesha Rao, practising in Mangalore, was examined and the clinical record card Ex. D-12 and the book of private opinion, Ex. P-16 were produced. The learned Subordinate Judge has fully dealt with this medical testimony in paragraph 28 of his judgment and has come to the conclusion, however, regrettable it is, that the testimony of this doctor is entitled to no weight and, in fact, not to put too fine a point on it, the Doctor was lying and that the documents Exs. P-16 and D-12 bore tell-tale signs showing that they could not be accepted as genuine. Nothing was placed before us to come to a contrary conclusion that this appreciation of the evidence is either inadequate or incorrect. There is satisfactory evidence to show that Shankari died not of tuberculosis but of typhoid as the report to the Patel shows. Therefore, it stands to common sense that Shankeri a young woman aged 18, who had probably even been confined once, could not have despaired either of procreating a child or despaired that she would not live. By the same token the young husband Shanker Bhatta could not have despaired of either and in fact after the death of Shankeri he has married with indecent haste and had a wife by the second date of adoption on 29th October 1944. Therefore the oral, documentary and circumstantial evidence adduced on behalf of Tirumaleshwara Bhatta do not prove that an adoption took place on 12th July, 1943, in Kalembi House where the first defendant and his father Bhima Bhatta were residing, as alleged.

There are several circumstances in fact adduced by the next reversioners corroborating that such an adoption could not have taken place which could be summed up as follows, namely, (i) absence of any deed of adoption; (ii) absence of printed invitation; (iii) a second adoption showing the uneasy consciousness of the parties that the first adoption could not be proved; (iv) none of the neighbours like the Revenue Inspector of Shanbhogue and the Excise Sub-Inspector known to this family and who would normally be expected to be invited had been invited and who have come forward as P.Ws 1 and 2 and stated that they never heard of any such adoption; and (v) Exs. P. 11, P, 12 and P. 13 dated 12th July 1943 which show that the adoption could not have taken place at the time and in the manner alleged because this Shanker Bhatta instead of receiving and taking the boy as alleged, was actually engaged with work in the Sub Registrar's office.

Therefore, the first adoption set up, as having taken place on 12th July 1943 during the life time of Shankari, is false.

This Shanker Bhatta sets up a second adoption of the same boy on 29th October 1944 and wanted to nominate or designate the deceased Shankeri as the boy's adoptive mother, though by this time this Shanker Bhatta had married and his second wife was living and apparently could have been present even at the time of this adoption. In regard to this adoption two questions arise, namely, did such an adoption take place and secondly, could this Shanker Bhatta nominate or designate his deceased wife Shankeri as the adoptive mother in preference to his living wife?

Both the lower Courts have found that an adoption took place on 29th October 1944 as alleged and that this is made out by the oral evidence of D.Ws 4 to 8 and by the printed invitation cards Exs. D.8 and D.8 a and the adoption deed Ex. D-5. Therefore, the learned Subordinate Judge found as follows:

“I find that the adoption of the 6th defend ant on 29th October 1941 has been satisfactorily proved.”

In appeal the learned District Judge has observed:

“The learned Subordinate Judge has upon the evidence held that there was an adoption on 29th October 1914, and I concur with him, that as a matter of fact this adoption did take place.”

Therefore, as a fact this adoption of 1944 can be taken as having been established and it was not challenged before us.

On a point of law, however, the learned Subordinate Judge held that this adoption was invalid on two grounds. Firstly, that it was a Sagotra adoption and that as the mother of the adopted boy in her maiden state could not have lawfully married the adoptive father, the adoption was invalid, and secondly, that this adoption cannot serve to divest the estate, which on the death of Shankari had already become vested in other persons (be it the next reversioners of Sankammai. The learned District Judge rightly declined to uphold both these constructions. Firstly, in so far as Sagothra point was concerned, it was found as a fact that the Sagotram, namely, Gouthama Gothram, was not proved and secondly, it has been held in Simhadri Raju v. Satyanarayana Pantulu(1), that custom sanctions the practice of Sagothra adoption. It was laid down that the prohibition contained in the rule of the texts that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state, is overridden by custom in the Madras Presidency. Secondly, the learned District Judge held, and we agree with him, that if the adoption is valid it can divest the estate which had already become vested in other persons on the death of the previous owner. The case to our mind in point is a Bench decision, by which we are bound unless we are prepared to refer the matter to a Full Bench which is not necessary in the circumstances of this case, viz., in Subramamam Chettiar v. Muthiah Chettiar(2). It is laid down in this decision that an adopted son of a Hindu, whose only wife had died before the adoption, becomes the son of that deceased wife, so as to inherit the properties that belonged to her, and that the adoption would take effect as if the adoption had been made in the life time of the wife herself and, in the absence of any special custom, the adopted son will be entitled to divest all intermediate estates which had vested before his adoption subsequent to the death of the adoptive mother, either by inheritance or by the application of the custom of reverter. Therefore, if the adoption of the 6th defendant was a valid adoption in the sense that the 6th defendant would become the adopted son of the deceased Shankari, it will, without the slightest doubt, serve to divest the estate which had become vested in the heirs of the last male-holder, be it limited as in the case of Sankamma or absolute as in the case of the reversioners.

The question however is whether the adoption on 29th October 1944 was an adoption in the sense that the 6th defendant would become the adopted son of the deceased Shankeri in spite of the fact that the adoptive father, the 1st defendant, had re-married before the adoption took place and had a living wife on the date of adoption. For, there can be no dispute that if the adoptive mother cannot be held to be Shankeri, the adopted boy cannot succeed to the estate of Shankeri's father and vice versa.

The learned District Judge came to the conclusion that the adoptive father had no right to name a non-existent wife as the mother of the adopted boy in preference to the one that was in existence and that therefore, though the adoption was valid it cannot be held that the adoptive mother was Shankeri. The resultant consequence was that the adopted son could not succeed to the estate of Shankeri's father.

This conclusion is attacked by the learned Advocate for Tirumaleshwara Bhatta, Mr. Bhashyam, and his case is that on the case-law developments that have taken place in regard to the theory of adoption which is of a fictitious nature, the right to name a nonexistent deceased wife in preference to the existing living wife is the logical extension, This is buttressed up by the following two lines of citatations.

First line: The case-law has gone to the extent of holding that a bachelor can adopt: Gopal Anant v. Narayan Ganesh that a widower can adopt: Nagappa v. Subba Sastri, Chandra, sekharudu v. Brahmanna(3), Sundaramma v. Venkatasubba Aiyar(4) and Sountharapandian v. Periaveeru Thevan(5) that a man with a plurality of wives can adopt even in opposition to his wife's wishes and foist an adopted son on one or more of them: Annapurni Nachiar v. Collector of Tirunelvely(6), Annapurni Nachiar v. Forbes(7), Sundaramma v. Venkatasubba Aiyar and Sountharapandian v. Periaveeru Thevan that a wife has no place in the ceremonies connected therewith though ultimately she will participate in the spiritual welfare assured to the husband by Tilothaka and Pinda offered by the adopted boy after her demise. The adoption is to the husband and not to the wife but in consequence of the superiority of the husband, by his mere act of adoption, the filiation of the adopted as the son of the wife, is complete in the same manner as her property in any other thing accepted by the husband: Vide Dat. Mima I, 22 cited on page 244 of Mayne on Hindu Law and Usage, 11th Edn. The principle deduced from these citations is that the adoption by the husband is to himself and he could filiate as he likes that son to his wife and make that son succeed to her properties.

Second line: Having deduced these absolute powers of the husband to filiate or foist a son on his barren wife, the case-law has gone to the extent in the second line of decisions of his being able to nominate or designate the adoptive mother for that boy. If he was a monogamist and the wife had died at the time of adoption, the deceased wife would be construed to be the adoptive mother on the principle that a boy cut off from his natural family should be found a mother whenever possible: Sundaramma v. Venkatasubba Aiyar. If the adoptive father has two or more wives, that person whom he associates in the function will be the adoptive mother: Annapurni Nachiar v. Collector of Tirunvelvely, Annapurua Nachiar v. Forbes. If the man intending to adopt has two or more wives and dies giving a joint power to his widows to adopt and they adopt a boy the seniormost would, as the Dharmapatni and on the principle that the adopted boy could not have more than one mother which is opposed to nature, be the adoptive mother in the event of an adoption: Tiruvengalam v. Butchayya(8). If the authority has been given to the widows severally, the junior may adopt without the consent of the senior, if the latter refuses to adopt: Mondakini v. Adinath(9). Where there are several widows, if a special authority has been given to one of them to adopt, she, of course, can act upon it without the assent of the others, and she alone could act upon it; Vide 2 Stra. H.L 91 cited at page 205 of Mayne on Hindu Law, and Usage, 11th Edn. These permutations and combinations establish the right of the husband to designate or nominate the wife who should be the adoptive mother of the boy adopted.

The learned Advocate Mr. Bhashyam concedes that no decision has gone to the extent of saying that the husband who is adopting a son to himself has got the power to nominate or designate a dead wife as the adoptive mother of the boy in preference to a living wife existing and present at the time of the adoption (obviously for the purpose of altering the natural line of devolution of property and consolidating it in his own family) but that this designation is nothing more than a logical extension of the powers of nomination of the husband set out in the second line of decisions. In other words, the substance of Mr. Bhashyam's arguments is that when the law has been swallowing a camel why should it strain at a gnat of this description?

We regret our inability to accept the contention of the learned Advocate Mr. Bhashyam on account of the following considerations.

First of all, the correctness of Sountharapandian v. Periaveeru Thevan has come to be doubted by very eminent jurists and in fact was the subject matter of a reference to a Full Bench in A.S No. 83 of 1947 by Govinda Menon and Basheer Ahmed Sayeed, JJ. This matter, however, could not be disposed of by a Full Bench because the parties compromised and the hearing of this matter became otiose. The order of reference contains the following:

“In Mayne's Hindu law, tenth edition, pages 268 and 359 the learned editor discusses the question regarding the adoption by a widower as well as which wife happens to be the adoptive mottor. At page 258 the learned editor observes as follows:

‘The real difficulty however lies elsewhere: Where a person has no wife in existence at the date of adoption, can his deceased wife be said to be the adoptive mother? This question requires much more consideration than it has received. Where an adoption is made by a widow, it relates back to her husband's death; but where the adoption is made by a widower, there is no reason or principle why it should date back to an earlier date such as the death of his wife. The Dattaka Mimamsa contemplates a living wife and not one who is dead. It is imposing, a fiction upon a fiction to say either that the wife must be deemed to be alive at the date of the adoption, or that the adoption should relate back to the moment of her death. For the legal fiction of maternity, there must be a wife in existence at the time of the adoption to whom the law can point as the mother. For the adoption is to the husband, and not to her but in consequence of the superiority of the husband, by his mere act of adoption, the filiation of the adopted as son of the wife, is complete in the same manner as her property, in any other thing accepted by the husband’. This passage is conclusive to show that the acquirer of the property in the son must be a living person. So too, if a bachelor makes an adoption as be is entitled to do, the fiction of maternity has no scope and it is impossible to constitute the wife he may marry thereafter, as the legal mother of the adopted. She might not have even been in existence at the date of adoption. The simpler and more logical conclusion appears to be that a person can be the mother of the adopted boy when she is in existence as a wife at the date of the adoption, whether or not, she consents to it.”

The editor remarks in the footnote:

“Ramesam, J's., dictum in Sountharapandian v. Periaveeru Thevan. Nor is there any need to rely on any theory of the adoption relating back to Kothai Animal's life-time proceeds upon a misconception’.”

Another equally eminent authority has also criticised the correctness of the decision in Sountharapandian v. Peeriaveeru Thevan. Sir M. Venkatasubba Rao, after his retirement from the High Court of Madras, in reviewing Mayne's Hindu law, 10th Edn., observed as follows:

“By way of refreshing contrast, the criticism of the Full Bench decision in Sountharapandian v. Periaveeru Thevan, is liberal in outlook. That the adopted son of a widower becomes the son of his deceased wife is a rule that outrages both reason and natural feeling. To suppose that the deceased wife is alive, or to relate back the adoption to the moment of her death, as the editor rightly points out, is to impose a fiction upon a fiction. The absurdity of invoking the fiction of maternity in the case of a bachelor who first adopts and then marries is patent.”

We cannot, as was the case also with our learned brethren Govinda Menon and Basheer Ahmed Sayeed JJ. ignore that circumstance that two eminent jurists late Mr. S. Srinivasa Aiyangar and Sir M. Venkatasubba Rao were of the opinion that Sountharapandian v. Periaveeru Thevan, had not been correctly decided. We would have referred this matter to a Full Bench but for the circumstances that on the footing that Sountharapandian v. Periaveeru Thevan has been correctly decided the extension which the learned Advocate Mr. Bhashyam asks for is not deducible from the ratio decidendi in that case.

In fact Sountharapandian v. Periaveeru Thevan, following the earlier decision of Sundaramma v. Venkatasubba Aiyar, which for the purpose of our argument can be considered to constitute one group, contained observations showing the need for caution in imposing fiction upon fiction in developing the fictitious theory of adoption. It is a salutary principle right through that the adopted son is after all a son by fiction only. To adopt the words of Lord Truro in Egerton v. Brownlow, uttered in another context, the fiction of adoption constitutes “a very unruly horse and when once you get astride of it you never know where it will carry you.” The caution enjoined in Subramanian v. Somasundaram, that “even a fiction cannot be carried to illogical limits” is too wholesome to be ignored. And in this connection it has to be remembered and borne in mind that the text writers should not be taken literally and verbally because those text writers, for instance like Dattaka Mimamsa where it is stated about the wife of the adopter becoming the mother of the adopted boy independently of her volition, were only thinking of matters spiritual and in terms of perpetuation of the sacred fire (agnihotra) Shradha etc. Otherwise if we do not keep in mind this limitation there would be a complete perversion of the laws of inheritance. In a series of cases it has now been held by our Court that more than one wife of the adopter cannot become the mother of the boy for the purpose of succession. Under the Shastras the theory of maternity arising in the case of all the wives of a person is based upon the spiritual aspect. In fact Jagannatha has gone to the extent of remarking that if a son be adopted by a man married to two wives, he would have two maternal grandmothers and two sets of maternal ancestors; see Colebrooke's Hindu Law, 4th Edn. Vol. II p. 394. Similarly, Vyavasthachandrika states that if an adopted son is received by none of the wives either in conjunction with or under the authority of the husband but by the husband alone, the adopted son should perform the Parvana Shradha in honour of the ancestors of all such wives of the adopter: See Vol. II, p. 147, verse 32. Therefore, unless we bear in mind the limitation, we would be creating confusion in regard to succession. So also if we literally accept these texts as not only covering matters spiritual but also matters secular, we would be making a mockery of adoption not by making it a substitute for the real thing, namely, the adopted son being the reflection of a real son, but a caricature of the same. An aurasa son if his father is married to two or more wives can only succeed to his own natural mother's properties and not be the heir of his step mothers, properties devolving on them from their parents. Therefore when Mr. Bhashyam asked for an additional fiction we must bear in mind these limitations and examine whether such an extension is based upon the two factors involved in an adoption, namely, the spiritual and the material one,. But before examining this aspect of the case we shall draw attention to certain observations in Sundaramma v. Venkatasubba Aiyar, and Sountharapandian v. Periaveeru Thevan, which throw considerable light on the question to be considered. In Sundaramma v. Venkatasubba Ayyar, Phillips, J. observed:

“The theory then appears to be that the adopted boy by a legal fiction becomes the natural son of the adoptive father and presumably also of his wife. The question here is not complicated by the existence of two or more wives.”

In Sountharapandian v. Periavttru Thevan, Ananthakrishna Aiyar, J. observed:

“In the case of plurality of wives, several tests have been indicated to find out the intention of the husband as to which of the wives should be the mother of the adopted son. In the absence of any indication by the husband himself just as, associating one wife with him in the act of adoption, or, otherwise declaring who is to be the mother, it may be that the seniormost wife— Dharmapatni— might be held to be the mother. If some wives be dead but others living other circumstances might have to be considered.“

In other words, these two decisions contain cautions against extending the fiction and take on an additional fiction as now called for by Mr. Bhashyam.

The ratio decidendi in both these cases is that the adopted boy gets entirely cut off from his natural family, though we may not go to the extent of considering whether he is civilly dead and concerning which there has been a lot of controversy. Therefore, Courts have felt that wherever possible a mother should be found for the boy in Suddha Dattaka affiliation. That mother was described as “Pratigrahitri Yamatha” and this term has in its turn led to a lot of controversy and our Court has considered the definition of this term in Sountharapandian v. Periaveeru Thevan, and Justice Ananthakrishna Aiyar has held that the expression means only the adoptive mother and not the woman who actually received the boy. In the article “Theories of Maternal affiliation in adoption” contained at page 21 of 1948 (2) M.L.J Journal portion the learned author Mr. S. Venkataraman points out that it is noteworthy that the term has always been understood by scholars as referring to an adoptive mother generally and not carrying its etymological significance. This construction was evolved because as I have stated the endeavour of the Courts has always been whenever possible to find a mother for the boy and on that construction it was possible to deduce that where a widower adopts, the deceased wife could by fiction be made the adoptive mother of the son adopted so as to inherit her father's properties.

Could this be done in the case of an adoptive father who has remarried before adoption and has a wife living and who has no necessity to hunt in for a mother for the adopted boy because there is one ready to hand. In our opinion there can be only one answer and it is the answer which has been given by the learned District Judge, namely, that the deceased wife of the first defendant cannot be nominated or designated as the adoptive mother of the sixth defendant.

This is based upon a two-fold reasoning. First of all the various fictions in regard to the power of a husband to designate or nominate a deceased wife or in the case of a bachelor a subsequently acquired wife to be the adoptive mother is based on the principle that the adoptive boy having lost his natural mother must be found a mother wherever possible and this is not the case here. Secondly, powers of preference of the husband can apply only as between the living wives of a person and not for elucidating the rights of a wife who had died prior to the adoption and a wife who is living at the time of adoption. The recognition of such a nomination would not give effect to the rule that when the first wife dies the next wife becomes the Dharmapatni and in fact a wife has to be taken in order that acts of religion might be done properly. So, the importation of the fiction will result in the anomaly, namely, that with reference to the adopter and his then existing wife the son is fictionally born in his family on the date of the actual adoption but with reference to the deceased wife he should be deemed to have come into existence on the date of her death, a different date; so much so the son comes into existence not at the same time as regards both the parents, namely, Shanker Bhatta and Shankeri but at one time with reference to Shanker Bhatta and his second wife and at another time with reference to the alleged adoptive mother Shankeri. Adoption ceases to be an imitation of nature but becomes a mockery of it.

It is interesting in this connection to look into the Hindu Code, 1948, which has not been passed into law but is on the legislative anvil. It is printed as Appendix IV to Mayne on Hindu law and Usage, 11th Edn. In S. 54 of the said Code it is stated that any male Hindu who is of sound mind and has completed the age of eighteen years has the capacity to take a son in adoption but cannot do so except with the consent of his wife or, if he has more than one wife, except with the consent of at least one of such wives. In S. 70 of the said Code it is stated that “where a Hindu who has a wife living adopts a son, she shall be deemed to be the adoptive mother”

“where a Hindu has more than one wife living, that wife in association with whom or with whose consent he makes the adoption, or if more than one wife has been so associated or has so consented, the senior most in marriage among the wives so associated or consenting shall be deemed to be the adoptive mother, and the other wives the step mothers of the adopted son. Where a widower adopts at any time after his wife's death, the wife who deed last immediately preceding the adoption, shall be deemed to be the adoptive mother, and any other predeceased wife or any wife subsequently married by him shall be deemed to be the step-mother of the adopted son. Where a bachelor adopts, any wife subsequently married by him shall be deemed to be step mother of the adopted son.”

There can be no dispute that these sections are the embodiment of the case-law as it now stands and the progress which is sought to be embodied. It will be noticed that the terms of the Code have not thought fit to apply the extension now sought for as it is opposed to both the spirit and of the texts as well as the limitations placed by case-law in regard to this thorny subject of adoption by the male.

In the result, it follows that the decree and judgment of the lower appellate Court has got to be set aside because Sankamma has subsequently died and there is no impediment to the reversioners' claim and the decree and judgment of the learned Subordinate Judge has got to be affirmed, though on different grounds. The second appeal by Tirumaleshwara Bhatta (S.A No. 1823 of 1947) is dismissed and she second appeal by the reversioners (S.A No. 2112 of 1947.) is allowed.

The reason which induced the learned District Judge to dismiss the action was that it was too premature as Sankamma was alive at the date of the suit and the date of first appeal. Subsequent to the filing of the appeal here the impediment has been removed by the death of Sankamma. Therefore it follows that the plaintiffs are entitled to a decree in terms of the learned Subordinate Judge's findings but as regards mesne profits we direct that the plaintiffs be entitled to a decree only from the date of the death of Sankamma, that, is 20th May, 1949. Each party to bear its own costs throughout.

V.C.S