Bai Kesharba v. Shivsangji Bhimsangji Thakor

Patkar, J.:—

These appeals arise out of a suit relating to the talukdari-thakrat estate known by the name of Ahima in the Anand Taluka in the Kaira District.

The pedigree of the family is as follows:—

Himatsangji died in 1887 leaving two sons Chandrasangji and Bhimsangji, the original plaintiff. Chandrasangji died on April 6, 1889, leaving a widow Kesarba, defendant No. 2, and a son Chhatrasangji, defendant No. 1, who was given in adoption to the Bhamaria estate on August 2, 1915. Defendant No. 4 is the wife of defendant No. 1. Before the adoption, of defendant No. 1 he had a daughter Bajuba, defendant No. 5. The plaintiff died on January 22, 1926, leaving two sons Shivsangji who was added as a legal representative of the original plaintiff, and Laxmansangji, who was made defendant No. 6. After the adoption of defendant No. 1 to the Bhamaria estate, his mother Kesarba, defendant No. 2, adopted Mansangji, defendant No. 3, on September 15, 1917.

The plaintiff alleged that on the adoption of defendant No. 1 in the Bhamaria family, his right to the Gadi of Ahima estate was extinguished, and in accordance with the custom of lineal primogeniture in the family he became entitled to succeed to the Gadi.

The properties in the suit consist of the properties in schedule A, which are admittedly impartible properties of the talukdari-thakrat estate of Ahima; similarly the Giras and Kothli Santh Haks and the house in paragraph 18 of the plaint are talukdari properties. The properties described in schedules B to H are vanta lands situate in villages in British India. The case of the plaintiff is that they were acquired out of the income of and incorporated with the impartible property of the talukdari estate of Ahima. Defendant No. 1 before his adoption to the Bhamaria estate passed deeds of sale in respect of vanta lands in schedules B to H in favour of his mother, defendant No. 2, and his wife, defendant No. 4, by Exhibits 228 and 230, and 229 and 231.

The learned Subordinate Judge dismissed the suit on the ground that as Chhatrasangji left a daughter, the plaintiff had no cause of action: see Exhibit 16. The decision was reversed in First Appeal No. 76 of 1923 on June 22, 1925. The daughter of defendant No. 1 was directed to be made a party and accordingly defendant No. 5, the daughter, was brought on the record. On January 22, 1926, the plaintiff Bhimsangji died and his son Shivsangji was brought on the record and Shivsangji's brother Laxmansangji was brought on the record as defendant No. 6. Pending the appeal the original defendant No. 1 Chhatrasangji died and his son Vijaysangji, who was born after the adoption, is carrying on the litigation.

On remand the learned First Class Subordinate Judge held, first, that Chhatrasangji, defendant No. 1, by Bai kesharba reason of his adoption in the Bhamaria family had lost all right to the talukdari property, secondly, that the adoption of Mansangji, defendant No. 3, by Kesarba, the mother of Chhatrasangji, after his adoption in the Bhamaria family, was invalid because Kesarba's power to adopt was exhausted and came to an end, and, thirdly, that the plaintiff was entitled to the property in schedule A, the house in paragraph 18, and the Giras and Kothli Santh Haks which formed part of the tatukdari estate, but dismissed the suit as regards the properties inschedules B to H on the ground that they were vanta lands did not form part of the tatukdari estate but were alienable, and the alienations in favour of defendants Nos. 2 and 4 were valid.

Three appeals are field against this decision, First Appeal No. 339 of 1927 by defendant No. 1, represented by his son, contesting the conclusion of the lower Court that defendant No. 1, by reason of his adoption, had lost all rights to the talukdari estate; First Appeal No. 338 of 1927 by defendants Nos. 2 and 3 in which they seek to support defendant No. 3's adoption; and First Appeal No. 422 of 1927 by the plaintiff who feels aggrieved as regards the dismissal of the suit in relation to the vanta lands in schedules B to H.

In First Appeal No. 339 two points are urged, first, that Chhatrasangji by his adoption to the Bhamaria estate did not lose his interest in the Ahima estate, and, secondly, that the plaintiff was estopped from claiming possession of the property on the ground that on the representation of the defendant, he did not make an adoption to himself before he was adopted in the Bhamaria estate.

In First Appeal No. 338 by defendants Nos. 2 and 3, it is contended that the adopted son must be considered never to have been born in his natural family, that is, he is to be regarded as born in his adoptive family, and, therefore, if it be held that defendant No. 1 by his adoption forfeited all his rights of inheritance in the natural family, defendant No. 2, the mother of defendant No. 1, had a right to adopt a son to her husband on the ground that defendant No. 1 must be considered not to have been born in the natural family and to have been born in the adoptive family, and that an adoption has two aspects, one religious and the other secular, and the adoption of defendant No. 3 is valid.

In First Appeal No. 422 it is contended on behalf of the plaintiff that the vanta lands are an appanage of the talukdari properties and partake of its impartible nature, and succession to them is governed by the same principles as the impartible estates of the talukdari of Ahima, and, therefore, the plaintiff is entitled not only to the talukdari estate but also to the vanta lands.

Three principal questions, therefore, arise in all the three appeals, (1) whether defendant No. 1 loses the right which was vested in him by inheritance to his natural father Chandrasangji by reason of his adoption in the Bhamaria family; (2) whether the adoption of defendant No. 3 is valid; and (3) whether the vanta lands are impartible and incorporated with the impartible talukdari estate, and whether the plaintiff is entitled to them by virtue of the rule of primogeniture.

Before deciding the several questions of law arising in the case it is necessary to arrive at conclusions of fact arising in the case. The learned subordinate Judge held that the custom of primogeniture applied to the talukdari estate which consisted of the Udhad Jama lands, the house in paragraph 18 of the plaint, and the Giras and Kothli Santh Haks. The custom of lineal primogeniture with regard to these properties was not seriously contested in the lower Court. The custom is admitted by the defendant's own witnesses, Chhatrasangji, defendant No. 1, Exhibit 200, Kesarba, Exhibit 387, Anupram, Exhibit 393, Nathubava, Exhibit 394, and Prabhashankar, Exhibit 399. I agree with the finding of the lower Court that the rule of primogeniture applies to the talukdari estate consisting of the Udhad Jama lands, the house at Ahima and the Giras and Kothi Santh Bai Keshahba Haks, and that they are impartible.

With regard to the vanta lands, it is contended on behalf of the plaintiff that they are incorporated with the impartible property of the Ahima estate. The Sanads of some of the vanta lands are in favour of Narsangji, the father of Himatsangji, Exhibits 204 to 221 ranging from the year 1865 to 1870. It is urged that the vanta lands were incorporated in the impartible property on the ground, firstly, that they were purchased out of the income of the talukdari estate; secondly, when the talukdari estate was taken into management by the Talukdari Settlement Officer, the vanta lands were also taken into management; thirdly, that the incomes of both kinds of properties were blended together; and, fourthly, that they were treated in the same way in the revenue registers. On the other hand, it is contended that the plaintiff must prove that the corpus of the vanta lands was incorporated in the talukdari estate; secondly, even if the blending of the corpus was proved, it would not invest private lands of the nature of vanta lands with the character of the talukdari estate.

It is not disputed that the vanta lands were acquired out of the income of the impartible talukdari estate, and that when the talukdari estate was taken by the Talukdari Settlement Officer for management the vanta lands were also taken into management.

The Ahima estate was taken into management by the Talukdari Settlement Officer on two occasions, once during the time of Himatsangji from 1884 to 1894, and, secondly, from 1899 to 1907. The first management was not under the Gujarat Talukdars' Act VI of 1888 but was taken under sections 4 and 5 of the Broach and Kaira Incumbered Estates Act, XXI of 1881, and the second managment was on account of the minority of Chhatrasangji.

In Srimati Rani Parbati Kumcwi Debi v. Jagadis Chunder Dhabal, where four mouzas were bought by the Court of Wards with the savings of the impartible estate while it was in their management and the collection was made by the same persons, it was held that they formed part of the self-acquired estate and no intention to incorporate them with the ancestral estate was proved. At page 98 it was observed:—

“All that the respondents can point to as indicating Puma's intention to deal with them as part of the Raj is that the rents were collected by the same servant, and the collection papers kept with the papers of the Raj. Their Lordships do not find in these meagre facts adequate grounds for holding that the Raja intended to incorporate the four mouzahs with the ancestral estate for the purposes of his succession.”

In Jagadamba Kumari v. Narain Singh, where the deceased holder of an impartible estate had applied the savings out of the income to purchasing immoveable properties and making loans, the rents and interest being received by the manager of the estate and treated in his books as part of the income of the estate, it was held that the property so acquired had not become part of the impartible estate but remained the separate property of the deceased holder. The principle applicable to ordinary joint family estate that self-acquired moneys are to be regarded as joint property if mixed with the moneys of the joint family does not necessarily apply to the property acquired by a holder of impartible estate out of the income. The income of an ancestral impartible estate is not affected by its origin but is absolute property of the holder of the estate.

It appears from Anderson's Land Revenue Manual, 1921 Edition, page 3, that talukdari vanta lands summarily settled as personal inam under Act VII of 1863 are no longer treated as talukdari estate. Assuming, however, that such vanta lands, which are lands situate in Government villages, could be incorporated with talukdari estate, the evidence in this case fails to establish that there was such incorporation. On the other hand, in the plaintiff's application, Exhibit 191, and in the plaint and in his deposition differentiation is made between the two kinds of properties. Anupram says that there are no vanta lands belonging to the Ahima estate. I am not, therefore, satisfied on the evidence that there was any blending of the corpus of the vanta lands with the Ahima talukdari estate even though they may have been acquired out of the income of the talukdari estate. section 31 of the Gujarat Talukdars' Act VI of 1888 would not, therefore, in my opinion, apply to the vanta lands in schedules B to H. It is not, therefore, established on the evidence that the vanta lands are impartible and inalienable. They belonged as the separate property to defendant No. 1 Chhatrasangji and could be alienated by him as the sole surviving member of the joint family.

The plaintiff has nowhere contended that he was entitled to this property by survivorship. In the plaint he claimed the property as the next heir after the adoption of defendant No. 1 in the Bhamaria family. He nowhere alleged that he was a member of the joint family and entitled to any of the property in suit by survivorship. In Exhibits 190, 191, and 192 the plaintiff has put forth his claim as heir. No issue was raised in the lower Court on the question of the joint character of the property in suit. In First Appeal No. 422 filed by the plaintiff, defendant No. 5, the daughter of Chhatrasangji, born before his adoption, who would be the heir to the vanta lands not alienated by defendant No. 1 before his adoption, was made a party to the appeal but died during the pendency of the appeal, and her heirs are not brought on the record and the appeal would, therefore, abate as against her.

It is unnecessary to go into the question as to whether the sale-deeds passed by defendant No. 1 in favour of his mother and wife, defendants Nos. 2 and 4, are supported by consideration. If the properties are inalienable, the plaintiff is entitled to succeed whether the sale-deeds are supported by consideration or not. If, on the other hand, the properties are alienable, defendant No. 1 had a right to give the lands by way of gift to his mother and wife before his adoption, and the question whether the sale-deeds, Exhibits 228 to 231, are supported by consideration does not properly arise in the case. As the sole surviving member of the joint family, defendant No. 1 was entitled to sell all the properties or make a gift of them before his adoption and before a son was born to him in his natural family before his adoption.

I think, therefore, that the view taken by the lower Court that the rule of primogeniture applies with regard to the properties belonging to the talukdari of Ahima, the house in suit and the Griras and Kothli Santh Haks is correct. I also agree with the view of the lower Court that the vanta lands were the separate property of defendant No. 1 and could be alienated by him by sale or by gift before his adoption. It is not proved in the case that the plaintiff is a member of the joint family of which defendant No. 1 was the last sole surviving member. It was never alleged by the plaintiff that the family was joint and that he was entitled to any of the properties in suit by survivorship. His sole contention was based on the ground that he was entitled to succeed as heir on the adoption of defendant No. 1. The question as to whether there was a partition between the plaintiff and defendant No. 1 was not raised and decided in the lower Court. It appears that in the Record of Rights some of the lands are shown to have gone to the plaintiff by partition among the brothers and the plaintiff in his cross-examination admitted that he had gone to the talati when the Record of Rights was prepared, and that he separated about five days after the Barma, that is, the twelfth day ceremony of his father. It is not, therefore, necessary on the pleadings and the evidence in the case to go into the question as to whether there was a partition between the plaintiff and defendant No. 1. The case proceeded in the lower Court on the assumptions that there was a partition between the plaintiff and defendant No. 1, and defendant No. 1 was in possession of the property as the sole surviving member of the joint family consisting of his father and himself, and the plaintiff claimed to succeed to the property as heir on the adoption of defendant No. 1, and not by right of survivorship.

The next questions for consideration are whether defendant No. 1, Chhatrasangji, lost all his rights in his natural family including the estate vested in him as the sole surviving member of the joint family, and whether the adoption of defendant No. 3 by defendant No. 2 subsequent to the adoption of defendant No. 1 in the Bhamaria family is valid.

It is contended by Mr. Coyajee that Chhatrasangji was not divested of the property which was vested in him by virtue of his adoption into the Bhamaria family, and he relied strongly on the decision in the case of Sri Rajah Venhata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row, which has considered the texts bearing on the point, and also on the decision of the Calcutta High Court in Shyamacharan Chattopadhyaya v. Sricharan Chattopadhyaya He further contended that the decision in Dattatraya Sakharam v. Govind Sambhaji proceeded largely on the fundamental idea underlying an adoption though there was no provision in the texts as to divesting an estate once vested, and contended that the decision in the case of Mahableshwar Narayan v. Subramanya Shivram, where it was held that when an adopted son came to a partition with his father and brother such property remained with him after the adoption, was inconsistent with Dattatraya's case.

Mr. Thakor appearing on behalf of defendant No. 3 contended that if defendant No. 1 be considered to have forfeited the estate which was vested in him before his adoption, it can only be on the theory that he was never born in his natural family but was born in the adoptive family, and reliance was placed on the decision in the case of Ramchandra v. Mantibai, and he urged that on the adoption of defendant No. 1, he and his wife went into the adoptive family and must be considered to have been civilly dead, and as defendant No. 1 must be considered to have never been born in the natural family, the adoption of defendant No. 3 by defendant No. 2 was valid.

There is a conflict of opinion on the first point under consideration between the Madras and the Calcutta High Courts on the one hand as reflected in the decisions in Sri Rajah Venkata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row and Shyamacharan Chattopadhyaya v. Sricharan Chattopadhyaya and the decision of the Bombay High Court in Dattatraya Sakharam v. Govind Sambliaji on the other. There are subsequent decisions of the Bombay High Court in which the reasoning appears to be not quite consistent with the reasoning in Dattatraya Sakliaram v. Govind Sambhaji.

I propose to deal with the texts bearing on the question and deal with the decided cases later on. The controversy ranges round the text of Manu, Chapter IX, v. 142, which is as follows:—

Its translation in Vol. XXV of the Sacred Books of the East, at page 355, is as follows:—

“An adopted son shall never take the family (name) and the estate of his natural father; the funeral cake follows the family (name) and the estate, the funeral offerings of him who gives (his son in adoption) cease (as far as that son is concerned).”

In some editions the words haret and kwachit are used, whereas in others the words used are bhajet and sutah respectively. Golapchandra Sarkar Sastri in his Hindu Law translates the word haret (i.e, take), as “take away” and not “take” as in the Sacred Books of the East, or “claim” in Stokes' Hindu Law, page 65. If Sarkar's translation is accepted as correct, it would clearly follow that an adopted son would not take away with him the gotra and the riktha, (i.e, wealth) of the progenitor. The pind (i.e, oblation offered to the deceased ancestor) is follower of the gotra and riktha, and therefore the swadha (i.e, funeral offering) goes away absolutely from the giver (of the son in adoption).

It is contended, on the other hand, that the word haret (i.e, take) does not mean “take away” but means “claim”, and applies to the state of things which would arise after the adoption, and that the property which is vested in the sole surviving member of a joint family is not divested by the adoption. It is common ground that when the natural father gives his son in adoption in another family, the interest which the son has vested in him by birth is lost to him on adoption into another family. It is also common ground that if a person is possessed of self-acquired property at the time of his adoption his right to that property is not in any way affected by the adoption and he continues to be the owner of the self-acquired property even after his adoption. Similarly, property inherited from his maternal grandfather in his natural family is taken away by him after his adoption. The controversy arises when a son is given in adoption by the mother after the father's death as regards the riktha or the estate or the wealth of his natural father which is vested in him as the sole surviving member of the family, and the question is whether he keeps it in his natural family or whether he takes it with him in his adoptive family. I am prepared to accept the meaning of the word haret as not “take away” but merely “take”.

The text of Manu has been commented on by several commentators. The Dattaka Mimansa, after stating the rule of Manu in Chapter IX, v. 142, explains it as follows in s. 1, pl. 7 and 8 (Stokes' Hindu Law, page 599):—

“7. The son-given must never claim his natural father's family and estate. Thus, ‘the obsequies'—that is, the funeral repast [which would have been] performed by the son-given fails of him who has given away his son.”

“8. The author of the Chandrika thus explains, ‘By this it is declared that by the act alone, creating the filial relation, property of the son-given in the estate of his adopter is established, and connection to him as belonging to the same family ensues: But through extinction of the filial relation from the mere gift, the property of the son-given in the estate of the giver is extinguished; and connection to the family of the giver annulled’.”

In Dattaka Chandrika, s. II, pl. 18 and 19 after reciting the verse of Manu referred to above, pl. 19 states as follows: (Stokes' Hindu Law, p. 640):—

“It is declared by this, that through the extinction of his filial relation from gift alone, the property of the son-given in the estate of the giver ceases; and his relation to the family of that person is annulled.”

It would, therefore, appear from these commentaries that the adopted son's rights cease and become extinguished by adoption.

Vyavahara Mayukha commenting on the verse of Manu says in Chapter IV, s. 5, pl. 22 and 23, as follows:—

“22 … even so by the terms, Gotra (family), pinda (funeral oblation), riktha (heritage), and swadha (Sraddha, etc.), are to be understood all the acts connected with the pinda or the funeral oblation due to the natural father; and their cessation is pronounced.”

“23. From this also follows (as a matter of course) the cessation of family connexion with the uterine brother and the father's brother and the rest. Therefore the son begotten by the simple adopted son should likewise perform his father's Sapindikarana, Parvana-Sraddha, and the like ceremonies in conjunction even with the (original) adopter. Similarly his son also.” (See Gharpure's translataion, page 82.)

It, therefore, appears that the view of the Vyavahara Mayukha is that there is a cessation ( nivirtti) of the gotra, pinda, riktha, and swadha, and their cessation is pronounced. It is clear from the Dattaka Chandrika and Dattaka Mimansa that the property of the son-given in the estate of the giver ceases or is extinguished, and relation to the family of that person ceases. It is also clear from Vyavahara Mayukha that the riktha (inheritance) in the father's family ceases and the cessation is pronounced, and there is not only the cessation of the gotra (family name), riktha (wealth of his natural father), pinda (funeral oblation) and swadha (shraddha, etc.), but also of the connection with the natural family, i.e, brothers and uncle. This portion of the Vyavahara Mayukha is referred to in considering the effect of dvyamushyayana adoption in the case of Laxmipatirao v. Venkatesh.

It appears from the commentaries that if the upanayana (thread ceremony) is performed in the natural family, it is not annulled on account of the adoption. Similarly, the natural tie, so far as the prohibition of marriage is concerned, is not annulled and the natural relationship is recognised for the purpose of prohibiting marriages within the sapinda relationship in the natural family. In other respects there is entire cessation of connection with his natural family. The verse of Manu refers not only to the riktha (heritage) of the natural father but also to the gotra (family name) of the natural father. It is quite clear that the gotra of the natural father is vested in the son by his birth. The gotra so vested in the son ceases after the son is given in adoption. It is difficult to understand why the riktha, which is spoken of in the same manner as gotra in the verse, should not cease by the entire cessation of connection with the natural family. The gotra (family name) and riktha (the estate) are inextricably joined together in a dvandwa compound, and it would follow logically as well as grammatically that the adopted son must lose both together and cannot lose the former and keep the latter.

It is unnecessary to discuss the rule of Mimansa and consider whether the argument on behalf of the appellant does not involve the fault or objection of vidhivaishamya, i.e, variableness in the precept Orinconsistency of legal rules referred to in Mitakshara, Chapter II, s. 1, pi. 33 and 34 (Gharpure's translation, pages 241 and 242), inasmuch as it is argued that the adopted son takes the riktha (heritage) of his father if the latter dies before adoption but not if he dies after adoption. Though it is not clearly stated that the wealth or the riktha of his natural father is divested by adoption, it is clear from the text and the commentaries that the gotra (i.e family name) and the riktha (i.e heritage) of the natural father cease by the very act of adoption on account of the entire cessation of connection with the natural family.

It will be convenient now to deal with the decided cases. In Sri Rajah Venkata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row it was held that the adoption into another family of the only surviving member of a joint family in whom the family estate has vested solely and absolutely does not in law operate to divest him of his rights in such estate. Reference is made in the judgment in that case to the text of Manu and the Dattaka Chandrika, and the Dattaka Mimansa, but the passages relating to the cessation of the property of the son given in the estate of the giver are not given effect to, and the passage, which I have referred to, in the Vyavahara Mayukha, which is an authority in the Bombay Presidency, has not been referred to. The commentaries speak of the cessation of the rights of the son which must relate to those acquired before adoption and not rights of inheritance after adoption. There must be acquisition of rights before their cessation, in other words, the rights cannot cease unless they have already been acquired. With regard to rights to the estate of the natural father accruing after adoption it is clear that they cannot be acquired because he ceases to be the son after the adoption. Though the texts do not say that the adopted son is divested of the property which is absolutely his own at the time of the adoption, the commentaries contemplate the cessation of the rights of the son in the property of his natural father by the very act of adoption, on account of the entire cessation of the connection with the natural family. The reference to Moniram Kolita v. Keri Kolitani is, in my opinion, not appropriate, for adoption is not a disability, but effects a severance of connection with the natural family and the substitution of the adopted son into the adopter's family.

Reference then is made in the Madras decision to the conflicting views of Sarkar in his Tagore Law Lectures on Adoption, 1888, published in 1891, pages 389 and 390, and Sarkar's Hindu Law, 2nd Edition, pages 119 and 120. Sarkar now in his Hindu Law, 6th Edition, has adhered to his later view (see pages 244 to 246). He observes as follows:—

“The commentators of Manu's Code and other commentators put the same meaning on the text of Manu indicating that the given son's existing rights become extinguished by adoption.”

Further, it is observed that there is great danger in speaking of adoption as civil death and a re-birth and in attempting to enforce the consequences that might be supposed logically to flow from those conceptions. It is no doubt true that it is dangerous to argue from analogies based on introduction of fictions and that in the realm of fiction it is difficult to arrive at logical conclusions. This is well illustrated by the remarks in a subsequent case to which I shall refer later on.

The decision of the Madras High Court is also based on the decision in Behari Lal Laha v. Kailas Chunder Laha, which is a case relating to the Dayabhaga school which is different from the Mitakshara school under which a son takes an interest in ancestral property by birth. Under the Dayabhaga the son does not acquire by birth an interest in the paternal estate, but takes a vested interest on the death of the father. Under the Mitakshara the foundation of a coparcenary is first laid on the birth of a son. According to Dayabhaga law there is no coparcenary between the father and his sons. It is only on his death leaving two or more male issue that coparcenary is brought into being. The essence of coparcenary under Mitakshara law is unity of ownership but under Dayabhaga law it is unity of possession. Under Mitakshara a coparcener does not take a definite share in the coparcenary property whereas under the Dayabhaga law he takes a definite share which can be alienated by sale or mortgage or gift or will as separate property. A different view appears to have been taken in Birbhadra Rath v. Kalpataru Panda, which relates to a case under the Mitakshara law.

It is unnecessary to discuss at length the point dealt with by the Madras High Court that the estate once vested cannot be divested. It is admitted, however, that if the natural father gives his son in adoption, the right which the natural son has vested in him by birth under the Mitakshara law and which he can enforce by a partition suit is lost to him or might be said to be divested by his adoption in another family. Similarly, the estate which a widow inherits from her husband is divested by taking a son in adoption. It is no doubt true that the estate which a widow takes from her husband is not an absolute estate. The estate which is vested in another member of a joint family can be divested by adoption by a widow of another coparcener if she has an authority to adopt given by her husband. That would be another instance of divesting an estate once vested at least partially. The effect of adoption is to extinguish the gotra (family name) and riktha (heritage) of his natural father, and the result of the commentaries on the text of Manu is that his interest ceases by reason of his entire cessation of his connection with his natural family and his substitution in the adoptive family.

In Kalgavda Tavanappa v. Somappa Tamangavdar it was held that when a married Hindu having a son is given in adoption, the son does not like his father lose the gotra and rights of inheritance in the family of his birth and does not acquire the gotra and a right of succession to the property of the family into which his father is adopted. At page 682 it is observed as follows:—

“The son, .. begotten by an adopted Hindu before adoption, has vested rights in the ancestral property of the family of his birth. Rights of property once vested cannot be taken away except in the mode or modes prescribed by Hindu law. They cease either by death, sale, gift, degradation, disqualification or by adoption.”

The text of Manu, Chapter IX, verse 142, is then discussed and at page 683 the result of adoption is stated to be the extinction in his case of the gotra (family) of his natural father and the rights of succession to his property.

So far as this Presidency is concerned, the son born to a man before adoption remains in the natural family and does not go with his father in the adoptive family. Supposing A dies leaving a son B as the sole surviving member of the family and B inherits the whole of the estate, it becomes vested in him as the sole surviving member of the joint family, and a son C is afterwards born to him. As soon as the son C is born to B, the estate, which is vested in him as the sole surviving member of the joint family, ceases to be the absolute property of B and becomes the joint family property of B and his son C, and to that extent the estate which is vested in B is partially divested of its absolute character. Supposing after the birth of C, the father B is given in adoption, the difficulty in accepting the appellant's argument based on the Madras decision will be realised in deciding the question whether the father would take with him in his adoptive family the whole of the estate once vested in him and subsequently turned into joint family property by the birth of the son C to him, or whether he would take only half of the property, or none at all. Various other difficulties are likely to arise as regards the debts of the father and the rights of maintenance of the mother and the other widows in the family. It is no doubt true that before the birth or adoption of a son, the last surviving coparcener of a joint family can deal with his separate property in any way he likes and sell or give it away, and no dispute would in all probability arise in the case of the adoption of a person who is the sole surviving member of a joint family and has no other relations living who have a claim on the property. In the present case defendant No. 5, the daughter, is alive and she would be entitled to the vanta lands which were left undisposed of by Chhatrasangji, defendant No. 1, and the daughter would remain in the natural family and inherit the property not disposed of by defendant No. 1 according to the decision of this Court in Manikbai v. Gokuldas.

In Dattatraya Sakharam v. Govind Sambhaji. it was held that under Hindu law when a son is given in adoption, he loses all the rights he may have acquired to the property of his natural father including the right to property which has become exclusively vested in him before the date of his adoption. This decision applies exactly to the facts of the present case. The Madras decision in Sri Rajah Venkata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row. was considered and dissented from, and the text of Manu Chapter IX, verse 142, has been considered as generally prohibiting the taking by the adopted son and as not restricting the taking to that which would devolve on him after the adoption, and proceeds on the fundamental idea underlying an adoption that the boy given in adoption gives up the natural family and everything connected with the family and takes his place in the adoptive family, as if he had been born there, as far as possible. The decision has not been dissented from or overruled, and for the reasons which I have already given, I am inclined to the view that the decision is correct on the merits.

It is urged by Mr. Coyajee that the decision in Mahableshwar Narayan v. Subramanya Shivram, where it was held that a person does not, on his adoption, lose the share which he has already obtained on partition from his natural father and brothers in his family of birth, is inconsistent with the decision in Dattatraya Sakharam v. Govind Sambhaji. It appears that Macleod C.J referred to the case of Sri Rajah Venkata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row, and has approved of the decision arrived at therein, though it was dissented from in Dattatraya Sakharam v. Govind Sambhaji. The reasoning appears to be that the property which has been obtained by partition is similar to the property possessed by the son as the sole surviving member of the joint family from the point of view of absolute estate and the right of disposition possessed by the son, but it is said that the origin of the title is different in the two cases. In the case of property obtained by partition, it ceases to be the property of the father. In the other case of property inherited by the son and possessed by him as sole surviving member of the family, the origin of title is different as nothing is done to put an end to the joint family, as in the case of partition, and the property does not cease to be the property of the father. But even the property obtained by partition does not cease to be ancestral property, and as soon as a son is subsequently born, the property though for the time being is separate property becomes joint family property with all its incidents. It appears that the case of Dattatraya Sakharam v. Govind Sambliaji, is distinguished on the ground that in the case of a partition the sons do not take their share as the estate of their natural father, and, therefore, the text of Manu has no application. The case of Dattatraya Sakharam v. Govind Sambhaji, is not doubted or dissented from in Mahableshwar Narayan v. Subramanya Shivram. We are not concerned in the present case with the property which a son has obtained by partition but with property which has been vested in the son as the sole surviving member of the family, and the decision in Dattatraya Sakharam v. Govind Sambhaji, clearly applies to the present case. It is unnecessary to go into the question as to whether the decision in Mahableshwar Narayan v. Subramanya Shivram, can be supported on the ground that in Manu's text the adopted son loses the riktha and the gotra of his father, whereas the property which has been obtained by partition is not the riktha of his father, and that there is distinction between the mode of acquisition of property by riktha (heritage) and the mode of acquisition of property by samvibhaga (partition), according to the text of Gautama, Chapter X, verses 39 to 42, referred to in Mitakshara, Chapter I, s. 1, pl. 8 and 13. Riktha (heritage), according to the Mitakshara, is an unobstructed heritage,, whereas partition (samvibhaga) is an heritage subject to obstruction. The question has been discussed in Bai Parson v. Bai Somli.

In Shyamacharan Chattopadhyaya v. Sricharan Chattopadhyaya. it was held that under the Bengal School of Hindu law, an heir, who has inherited any property from the family of his birth, is not subsequently divested of it on his being adopted by another person. The judgment proceeds on the Dayabhaga system of Hindu law by which the son on the death of his father obtains an absolute right to his share in the property of his father, and can be distinguished on that ground.

There are two other cases cited in the course of the argument with which I might deal now. The first is the decision in the case of Ramchandra v. Manubai, where it was held by Scott C.J and Hayward J. that an adopted son is to be treated as having been from his birth in the family of his adoptive father, and, therefore, he cannot for any purpose be regarded as having existed so as to acquire a vested interest in the property of his natural father. This case is strongly relied on by Mr. Thakor in support of the validity of the adoption of defendant No. 3 to which I shall refer later on. The fiction of civil death in the natural family and new birth in the adoptive family has been extended both ways to the extent that the adopted son is to be treated as having been born from his birth in the adoptive family and as having never been born in his natural family. Such an extension of the fiction of civil death and birth in another family is not warranted on any view of the texts or the decisions on the point. I shall deal with this point later on. In that case Ramdas had a daughter born before his adoption, and after his adoption the question arose whether he could execute the decree obtained by his natural father Narsidas, and the decision was that he could not execute the decree on the extension of the fiction referred to above, and an opinion was expressed that on adoption of Ramdas, the person entitled to execute the decree would be the heir of Narsidas, the father, as Ramdas must be considered not to have been born in the natural family. The same point came for consideration subsequently before the High Court in Manikbai v. Gokuldas, where it was held that the adoption of a married Hindu, the sole owner of ancestral property acquired by survivorship on the death of his father, does not deprive his daughter of her right of inheritance to that property. The fiction that Ramdas, the adopted son, must be considered not to have been born in the natural family was discarded by Macleod C.J and the heir on the adoption of Ramdas was held to be the daughter of Ramdas on the ground that the heir was to be ascertained as if Ramdas were dead. The decision exactly applies to the facts of the present case. Chhatrasangji, defendant No. 1, had a daughter born before his adoption. She would succeed to the vanta lands, which were undisposed of by Chhatrasangji before his adoption. The impartible property relating to the Ahima estate would go by right of inheritance or survivorship to the plaintiff by the rule of primogeniture, but the ordinary property would go according to this decision to defendant No. 5, the daughter of Chhatrasangji born before his adoption. The decision is based on the previous decision of this Court in Kalgavda Tavanappa v. Somappa Tamangavda. I agree with the conclusion arrived at on the ground that the right of Ramdas as the sole surviving member of the joint family ceased on the date of his adoption and the property would go to the heir of the last male owner, i.e, Ramdas, and his daughter born before the adoption would get the property according to the decision in Kalgavda's case. It is somewhat difficult to reconcile some of the remarks in the judgment in Manikbai v. Gokuldas, with the previous decisions of this Court. It is observed that the adoption of Ramdas put an end to the rights of inheritance in the same way as if he died, but it was quite unnecessary to add further the fiction, “as if he had never been born in the family” adopted in Ramchandra v. Manubai. Macleod C.J observed at page 325 that the fallacy in the decision of Ramchandra's case, lay in failure to recognise that Ramdas had no right of inheritance in the property of Narsidas to lose as he had already acquired it by survivorship, and referred to Dattatraya's case, without any comment or disapproval though the right acquired by survivorship in the family of the natural father and possessed by a son as such surviving member of a joint family was held to have been lost by his adoption in another family. It is no doubt true as observed in that judgment that once the realm of fiction is approached, the ordinary rules of logic cease to apply. The case of Mahableshwar Narayan v. Subramanya Shivram, is distinguished from the previous case of Dattatraya Sakharam v. Govind Sambhaji, on the ground that the property obtained by partition is not the estate of the natural father within the meaning of the text of Manu, Chapter IX, v. 142. It was held, however, that, on the adoption of Ramdas, the heir to be ascertained was not to Narsidas, the father of Ramdas, but to Ramdas himself.

It would, therefore, appear that the case of Dattatraya Sakharam v. Govind Sambhaji, is neither doubted in the subsequent decisions nor dissented from, but has been approved subsequently by the Privy Council in Raghuraj Chandra v. Subhadra Kunwar, so far as it proceeds on the fundamental idea that the boy given in adoption gives up the natural family and everything connected with the family. As I think that the decision in Dattatraya Sakharam v. Govind Sambhaji, is correct on the merits and has not been doubted or dissented from in any subsequent decision of this Court but approved by the Privy Council, I am bound to-follow it as it applies exactly to the facts of the present case. It would, therefore, follow that defendant No. 1 by his adoption lost all his rights which he may have acquired in the property of his natural father including the right to property which had become vested in him before the date of his adoption.

The results of an adoption have been stated clearly in the full bench decision of the Calcutta High Court in Uma Sunker Moitro v. Kali Komul Mozumdar, followed in the subsequent Privy Council decision in the case of Nagindas Bhugwandas v. Bachoo Hurkissondas. In Uma Sunker Moitro v. Kali Komul Mozumdar. Mitter, J. observes as follows (p. 259):—

“According to Hindu law, an adopted son occupies the same position, and has the same rights and privileges in the family of the adopter as the legitimate son, except in a few specified instances, which have been clearly and carefully noted and defined by writers on the subject of adoption. The theory of adoption depends Upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and the maternal line, and his complete substitution into the adopter's family, as if he were born in it.”

In pudma Coomari Debi v. Court of Wards, it was observed (p. 246):—

“An adopted son occupies the same position in the family of the adopter as a natural-born son, except in a few instances, which are accurately defined both in the Dattaka Chandrika and Dattaka Mimansa, the authorities that govern the decision of questions of adoption arising in the Bengal school.”

To the same effect is the decision in the case of Kali Komul Mozoomdar v. Uma Shunlcur Moitra.

In Raghuraj Chandra v. Subhadra Kunwar,) where the question was whether the natural brother of an Oudh talukdar continues to be his brother within the meaning of the Oudh Estates Act I of 1869, the question was discussed at full length at page 148 where the case of Dattatraya Sakharam v. Govind Sambhaji, has been approved, and it has been held that the expressions “civilly dead or as if he had never been born in the family” are not for all purposes correct or logically applicable, but they are complementary to the term “new birth”. It was further observed as follows (p. 148):—

“Consideration of the intimate connection, which primitive Hindu laws established between the funeral offerings and ceremonies on behalf of the dead and the right of succession to his property, will show that ceremonially the adopted son only becomes newborn in the family of his adoptive father, so as to be qualified to provide efficaciously the offerings of which the dead have need, by first dying in the family of his birth, out of which he is given by his natural to his adoptive parent, and in which his offerings will be no longer efficacious or desired.”

The true position seems to be that after the adoption there is, as I have already stated, cessation of connection with the natural family, the cessation of gotra (family name), riktha (heritage), pinda (funeral cake), and swadha (shraddha; etc.). Their cessation is pronounced according to the Vyavahara Mayukha, and from the date of the adoption he is considered to have been substituted in the adoptive family and acquires the rights of a natural born son. There is complete severance of all connection with the natural family from the date of his adoption. But it would be dangerous to extend the fiction of new birth in the adoptive family so as to hold that he was never born in the natural family and had been born in the adoptive family. When he is adopted he is substituted in the adoptive family and acquires all the rights of a natural born son. He becomes, according to the texts, the reflection of a son or becomes the substitute of a son Reference may be made in this connection to Mitakshara, ch. I, s. XI, pl. 32. C. Sankaram Sastri in his Fictions in the Development of the Hindu Law Texts, after referring to the text of Manu, Chapter IX, v. 142, observes at page 203 as follows:—

“An equally important factor in the growth of Hindu Law is the idea of Pratinidhi or substitute.”

And at page 204 it is observed as follows:—

“The result is, where there is no real son a fictitious son is recognised. By reason of his being a substitute for a legitimate son, an adopted son is generally invested by law with the status of a natural born son. The fiction of adoption is treated exactly in the same way as the birth of a real son. If a legitimate son acquires an interest by birth in the joint family property, an adopted son acquires a similar right by the act of adoption. If a natural born son can demand a partition of ancestral-property in the hands of his father, an adopted son can equally do so. Like a posthumous natural born son, an adopted son is entitled to impeach the validity of a pre-adoption alienation made by his adoptive mother.”

The above discussion of the real position of an adopted son leads to the conclusion that at the date of the adoption the adopted son severs all his connection with the natural family including the riktha (heritage) and the gotra of the natural family and acquires the heritage and gotra of his; adoptive family.

The next point urged by Mr. Coyajee in his appeal is that the original plaintiff was estopped from bringing this suit. Issue No. 9 was not pressed in the lower Court. There are not sufficient materials in the case to show that there was any representation made by the plaintiff which induced defendant No. 1 to alter his position to his detriment by acting on the faith of the alleged representation.

I will now deal with the appeal of defendants Nos. 2 and 3. In support of the adoption of defendant No. 3, it is urged by Mr. Thakor that the fiction of birth in the adoptive family must be extended to the extent of holding that the adopted son must be considered not to have been born in the natural family and to have been born in the adoptive family as held by this Court in Ramchandra v. Manubai. I regret my inability to agree with that decision. It appears from the texts that the ceremonial investiture of upanayana in the natural family is not annulled by adoption. Also the adopted son cannot marry within prohibited degrees in the natural family. To that extent an adopted son cannot be considered as not to have been born in his natural family. If the adopted son has a natural son born to him before the adoption, the latter remains in the natural family. So also a daughter born before the adoption remains in the natural family. It cannot, therefore, be said that an adopted son must be considered not to have been born in the natural family. The corollary from this extension of the principle, viz., that an adopted son must be considered to have been born in the adoptive family also does not hold good. He is substituted in the adoptive family from the date of his adoption, exactly in the same way as if he were born in the adoptive family at the time of his adoption. He is a substitute for a legitimate son. If a legitimate son acquires an interest by birth, the adopted son acquires a similar right and can demand partition of ancestral property, and can impeach alienations made by his adoptive mother after the death of her husband and before the date of the adoption, as the adoption is considered to relate back to the date of the death of the adoptive father. But the rights of the adopted son come into existence on the date of his adoption even for the purposes of limitation.

Defendant No. 1 by his adoption went into the Bhamaria family. So also his wife according to the decision in Kalgavda Tavanappa v. Somappa Tamangavda. The ordinary property consisting of the vanta lands, which, as I have already held, has not been incorporated with and partaken of the nature of impartible property, would go to defendant No. 5, the daughter, who remains in the natural family, to the extent of the property which has not already been disposed of by defendant No. 1 as the sole surviving member of the joint family before his adoption. The Ahima taluka property goes by the rule of lineal primogeniture to the plaintiff. I have already held that the case must be looked at from the point of view that the family is not joint and the plaintiff does not claim by survivorship but by inheritance. If the family is joint, the impartible talukdari property would go to the plaintiff by survivorship, and there will be no necessity of proving the custom of exclusion of females. But, as I have already held, it was never the plaintiff's case that he got the talukdari property by right of survivorship. His case has all along been that he was entitled to succeed to the property as heir of defendant No. 1 after his adoption. The result, therefore, is that, so far as the impartible property is concerned, it goes to the plaintiff as the next eldest male heir entitled to the property by the rule of primogeniture. Even if it be assumed that there was a partition between the plaintiff and his brother, he has not given up his chance of succession to the impartible estate, and he would be entitled to succeed to the property under the rule of lineal primogeniture. I have discussed the question fully in the case of Sahebgouda v. Basangouda. The point is covered by the decision of the Privy Council in Konammal v. Annadana, where their Lordships of the Privy Council observe as follows (p. 128):—

“Now once it is established—as it must now be taken to be—that for the purposes of succession an impartible estate may be joint family property, it is difficult to see upon what principle the fact that the members of the joint family or of any branch of the family have exercised their right of partition over their partible property should be held to divest them of their interest in the impartible estate over which they have no right of partition. It certainly cannot be put upon the ground of surrender or renunciation, for there is nothing in the fact of these partitions of their partible property to suggest any intention of renouncing their rights of succession to the impartible estate, nor do they receive any consideration for such renunciation. … Further, to lay down that members of a joint family could not partition their partible property without losing their rights of succession in the impartible estate would impose on these families a restriction on the free right to partition which has been so fully recognised by the decisions of this Board in recent years.”

It is clear, therefore, that the impartible talukdari property would go to the plaintiff by the rule of primogeniture. The custom of exclusion of females has been sufficiently proved in this case. The vanta lands, other than those which have been already alienated by defendant No. 1 in favour of defendants Nos. 2 and 4, would go by right of inheritance to defendant No. 5, the daughter of defendant No. 1 born before his adoption.

The question, therefore, arises whether under these circumstances the adoption of defendant No. 3 is valid and can divest the estate vested, in the plaintiff so far as the impartible estate is concerned, and in defendant No. 5, the daughter born before adoption, so far as the ordinary property is concerned. The Hindu law has forbidden the adoption of an only son. But it has been held by the Privy Council that the adoption of an only son is valid. In this case defendant No. 1 attained ceremonial competence and had married and had a daughter before his adoption. Defendant No. 2, the mother, has chosen to give defendant No. 1, who would have served all the spiritual purposes of a son, in adoption to another family. After the adoption of defendant No. 1 she has adopted defendant No. 3. There is no decided case in which a mother of an only son, who is married and who has an issue before adoption and has been given in adoption in another family, has been held entitled to adopt another son. It is no doubt true that defendant No. 1 and his wife have gone into the adoptive family. The daughter, defendant No. 5, remains in the natural family. Under these circumstances, assuming that the theory of civil death not only of defendant No. 1 but also of his wife, defendant No. 4, be accepted, the question still has to be considered whether defendant No. 2 has a right to adopt defendant No. 3. For the purpose of this question it is to be assumed that the wife of defendant No. 1 predeceased defendant No. 1 and defendant No. 1 died in the natural family. Assuming that these fictions are given effect to, the question still remains whether the adoption of defendant No. 3 by defendant No. 2 is valid.

It is urged by Mr. Thakor that the question of adoption has to be considered from two points of view, the religious purposes which are to be fulfilled by the son, and secondly from the secular point of view of investing the adopted son with the right to succeed to the property of defendant No. 1. The mother, defendant No. 2, has chosen to give away in adoption defendant No. 1, who would for all purposes have sufficiently fulfilled the obligations of a son from the spiritual and religious point of view. It is idle to pretend that defendant No. 2 adopted defendant No. 3 for fulfilment of religious or spiritual purposes. It is difficult to hold that the adoption of defendant No. 3 is good for one purpose, i.e, the fulfilment of the religious and spiritual obligations and still invalid from the secular point of view. The adoption is either effectual for all purposes or a nullity; see Bhau v. Hari. I have already held that the fiction that defendant No. 1 was never born in the natural family cannot be accepted for the reasons which I have already given. Defendant No. 2 has adopted not to the last full owner who was defendant No. 1 in this case. She purports to adopt a son to her husband Chandrasangji who was not the last full owner. The adoption of defendant No. 3 by defendant No. 2, if valid, would in effect divest the ordinary property vested in defendant No. 5, the daughter born before the adoption of defendant No. 1, so far as the undisposed vanta property is concerned, and would divest the plaintiff of the impartible talukdari properties vested in him on the adoption of defendant No. 1.

It is urged on behalf of the appellant that the power of adoption of defendant No. 2 has not come to an end as defendant No. 1 has not left any son or widow to continue the line. It is difficult to extend the analogy of other cases to the facts of the present case where defendant No. 1 has not died and has a wife living with him who has been transferred with him to the adoptive family.

The question is whether the adoption of defendant No. 3 by defendant No. 2 is valid and would divest the estate of the plaintiff and defendant No. 5. In Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry, their Lordships of the Privy Council observed as follows (p. 311):—

“If Bhowanee Kishore had died unmarried, his mother, Chundrabullee Debia, would have been his heir, and the question of adoption would have stood on quite different grounds. By exercising the power of adoption, she would have divested no estate but her own, and this would have brought the case within the ordinary rule; but no case has been produced, no decision has been cited from the Text-books, and no principle has been stated to show that by the mere gift of a power of adoption to a widow, the estate of the heir of a deceased son vested in possession, can be defeated and divested.”

In Venkappa Bapu v. Jivaji Krishna, it was held that the real limitation on the widow's right to adopt when she succeeds as heir to her son does not depend upon the investiture, marriage or ceremonial competency of her deceased son, but upon the question whether by such adoption she derogates from any other rights save her own. It was observed at p. 310:—

“Whatever ceremonial defects there may be, the principle that the widow succeeding as heir to her son—which implies that the son has left neither widow nor issue, may adopt—has been now confirmed by a series of decisions …”

It was further observed at page 311:—

“… in this Presidency the husband's expressed permission is not required by the widow, the mother who adopts a son, because the son born to her is dead and has left no issue or widow behind, really exercises the authority conferred on her by implication by her husband. Where, therefore, she divests by her act of adoption no other estate but her own, her power cannot properly be questioned.”

The principle of this case has been extended so as to invalidate an adoption by the mother where the estate has vested by virtue of the Watan Act in a distant collateral as in the case of Bhimabai v. Tayappa Murarrao. At page 609 it is observed by Shah, J. as follows:—

“I hold, therefore, that the mere fact that the heir in the present case is a grand-uncle and not the widow of the deceased Bhogappa or that the plaintiff is the next heir under the special rule of devolution laid down by act v of 1886 in respect of vatan property and is not the next heir of Bhogappa according to Hindu Law cannot make any difference in the result.”

Mr. Thakor has strongly relied on the decision in the case of Adiveva Fakirgowda Patil… v. Chanmallgowda Ramangowda….. It was held in that case that under Hindu law where a mother does not succeed to vatan property belonging to her deceased son but vests in her husband's heirs, she cannot by adopting a son to her husband, divest the property from them. The decision so far as it goes follows the decision in Bhimabai's case, and the decision in Mussumat Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhry. The decision is opposed to Mr. Thakor's contention, but Mr. Thakor relies on certain remarks of Macleod C.J in the judgment to the effect that there can be no longer any dispute as regards the validity of the adoption of defendant No. 4. It is difficult to follow the remark with regard to the validity of the adoption of defendant No. 4. It was held in that case that the adoption of defendant No. 4 could not divest the estate vested in the plaintiff and the plaintiff was entitled to recover possession of the property. It is difficult to understand how the adoption was assumed to be valid and still held incapable of divesting the estate vested in the plaintiff.

The decision in Amarendra Mansingh Bhramarbar Rai v. Banamali Singh clearly applies to the facts of the present case. It was held in that case that on the death of the last male-holder the estate vested in the plaintiff irrespective of whether it was a separate or joint impartible property, and that the adoption was invalid inasmuch as the mother could not by making an adoption divest the estate which was already vested in the plaintiff. The case would have been different if on the adoption of defendant No. 1 the estate had vested in the mother, defendant No. 2, for in that case she would have divested herself and nobody else. In Pratapsing Shivsing v. Agarsingji Raisingji the adoption was made to the last male-holder, and not, as in the present case, to a previous holder of the estate.

The facts of the case of Panyam v. Rama Lakshmamma, relied on by Mr. Thakor, are quite different. The suit was brought by the reversioners of the father of defendant No. 1 for a declaration that the adoption of a son by the daughter defendant No. 1 in the joint family after the death of her husband and subsequent to the partition between her husband's brothers was invalid. In the Bombay Presidency the daughter takes an absolute estate in the property inherited from her father, and the question is not likely to arise. The adoption by the daughter defendant No. 1 was to her husband who was a member of a joint family, and the question was whether such an adoption was valid after the death of her husband and after the disruption of the joint family by partition between her husband's brothers. The question is quite different from that arising for consideration in this case. It is unnecessary to discuss the reasoning in that case which doubts the decisions in the cases of Chandra v. Gojarabai and Shri Dharnidhar v. Chinto.

There is difference between the power of adoption of a widow of the last male owner and the power of adoption of a widow to her husband who was not the last male-holder. The mother adopts to her husband and not to her son the last male-holder as in the present case. In the Bombay Presidency in the case of adoption by a widow, other than the widow of the last male-holder, two conditions necessary for its validity have to be satisfied, first, that she divests no other estate than her own, i.e, she must not divest any other estate than her own, and, secondly, that even though she divests no other estate but her own, her power of adoption has not come to an end. I have discussed the question in Shivappa v. Rudrava. In the case of an adoption by the widow of the last male holder, the adopted son becomes the son of the last male-holder and would be able to divest the estate of any person who has taken the estate subject to defeasance by the emergence of a new heir. In the present case even if the fiction of the death of defendant No. 1 on his adoption be accepted, the ordinary property would go to defendant No. 5, the daughter of Chhatrasangji. The adopted son by the mother of Chhatrasangji would be his brother if the adoption is valid, but the daughter is the preferential heir to a brother in the compact series of heirs. I may in this connection refer to the decisions in the cases of Gavdappa v. Girimallappa and Mallappa v. Hanmappa.

Having regard to the decisions referred to above which have never been doubted in this Court, I think that the adoption of defendant No. 3 by defendant No. 2 is invalid, as defendant No. 2 could not by adopting defendant No. 3 divest the estate which had already vested in defendant No. 5 so far as the undisposed of vanta lands were concerned, and which was vested in the plaintiff so far as the impartible talukdari estate was concerned. It is unnecessary to pursue the question any further, and refer to the cases of Ramkrishna v. Shamrao and Madana Mohana v. Purushothama, which relate to the power of adoption by a widow becoming extinguished and incapable of being revived. It is also unnecessary to deal with other cases referred to in the course of the argument, as those cases relate to a natural son dying unmarried or after his wife having predeceased him and leaving no issue, and the mother by adoption divesting no estate but her own. I think, therefore, that the adoption of defendant No. 3 is invalid.

The result, therefore, is that defendant No. 1 by virtue of his adoption loses the property which was vested in him as the sole surviving member of the joint family, that after his adoption the private vanta property, which was not disposed of by him in favour of defendants Nos. 2 and 4, is inherited by defendant No. 5, the daughter born to defendant No. 1 before his adoption, and that the talukdari properties consisting of the Ahima estate, the house in suit, and the Giras and Kothli Santh Haks belonging to the talukdari estate are inherited by the plaintiff by the rule of primogeniture and the custom of excluding females in the family, and that the adoption of defendant No. 3 is invalid as it cannot divest the estate vested as stated above in the plaintiff and defendant No. 5.

The result, therefore, is that the decision of the lower Court is right, and all the appeals must be dismissed with costs.

Barlee, J.:—The question in this appeal is whether Chhatrasangji, defendant No. 1, lost the right to the impartible taluka of Ahima, which had accrued to him on the death of his father Chandrasangji, by reason of his adoption into another family. At the time of his adoption he had a wife. Dolatba (defendant No. 4) and a daughter Bajuba (defendant No. 5), and his mother Kesarba (defendant No. 2) was alive. The plaintiff was the brother of Chandrasangji, but he is now dead and his son Shivasangji is in record in his place. He sued as the nearest heir to Chhatrasangji, on the ground that Ahima was an impartible estate, and that women were excluded from inheritance. Otherwise both Bajuba and Kesarba would have been nearer heirs.

Defendant No. 1's defence was that the adoption did not divest the estate which had already vested in him and that he had taken it into his adoptive family. It is contended for him that he could do so inasmuch as he was sole owner, and under Hindu law no estate once vested can be divested. A similar question came before a bench of this Court in Dattatraya Sakharam v. Govind Sambhaji. One Mahadev died separate from his brother Sambhaji, leaving a widow Parwati and a son Ramchandra, who was in possession of the estate as sole surviving coparcener. He was given away in adoption and his mother mortgaged the property. The mortgagee sued to enforce his mortgage, and the sons of Sambhaji pleaded that Parwati had had no interest in the property while Ramchandra was alive. It was held by Shah J. (Batchelor, J. concurring) that by his adoption Ramchandra had lost all the rights he had acquired in the property of his natural father, inclusive of the right which had vested exclusively in him before the date of the adoption. The learned Judge founded his decision on a text of Manu, Chap. IX, v. 142, and dissented from the view taken by the High Court of Madras in Sri Rajah Venkata Narasimha Appa Row v. Sri Rajah Rangayya Appa Row, which had followed the Calcutta case of Behari Lal Laha v. Kailas Chunder Laha. Shah, J.'s view was taken by Sir Basil Scott C.J in Ramchandra v. Manubai, of which the facts were identical with those of the present case.

Mr. Coyajee for defendant No. 1 has contended that the authority of Shah, J.'s judgment has been destroyed by the later case of Mahableshwar Narayan v. Subramanya Shivram, or in the alternative that the facts of the present case are distinguishable from those in Dattatraya v. Govind, and he has suggested that in view of the doubt expressed by Sir Norman Macleod in Mahableshwar's case we should refer the present case to a full bench.

It is true that Sir Norman Macleod approved of the reasoning of Sri Rajah Venkata's case but it is not correct to say that he refused to follow the previous decision of his own Court, which indeed was binding on him. On the contrary, he was at pains to distinguish the facts of his case, and his decision rests on the distinction between family property which has been partitioned and family property which has vested in a coparcener as last surviving member of a Hindu joint family. At page 546 in Mahableshwar's case he says:—

“In the present case the first defendant had an absolute right to the share in the family property which had come to him on partition. He could have disposed of it so long as his right of disposition was not fettered by a son being born to him. It might be said that the rights of disposition possessed by the sole surviving member of the joint family would be the same until a son was born to him, but the origin of his title to the property would be of a different character, since nothing would have been done to put an end to the existence of the joint family. In my opinion it cannot be said that in the case of a partition in a Hindu joint family consisting of a father and his sons, the sons take their shares as the estate of their natural father and therefore the decision in Dattatraya Sakharam v. Govind Sambhaji cannot be taken as governing this case.”

We are bound, then, by the rule in Dattatraya v. Govind, and clearly must hold that defendant No. 1 has forfeited his rights in the Ahima estate, since it is not suggested that he separated from his father. It is, however, his case that the plaintiff separated from Chandrasangji, and that he at any rate cannot claim the estate. No one pleaded partition. There was no issue on this point. But Mr. Coyajee claims that the plaintiff sued as a divided member of the family and that he is entitled to argue on the basis that there was a partition. To this I am unable to agree. I have read the plaint with care and I can find nothing in it to entitle the learned counsel to take up this position. It is true that in para, 2 the plaintiff pleaded that the eldest son “inherits the entire property,” and that younger sons are given jivai grants, and in para 8 that on Chhatrasangji's adoption the estate vested in him, the plaintiff, as heir apparent, but that was a natural way of speaking of the succession to an impartible estate and is very far from being an explicit or implicit plea that he or his father had separated from the main branch and that the defendant or his father had obtained the gadi by partition. In consequence I am unable to accept the view that the case of Mahableshwar Narayan v. Subramanya Shivram can help him in any way.

We have had the advantage of a long and closely reasoned argument on the soundness of the decision in Dattatraya v. Govind. My view, as I have said, is that we are bound by it. But, with great respect, I must add that I am in entire agreement with the judgment of Shah, J. and am unable to accept the view adopted by the Madras High Court. It is correct to say that in the age of Manu a son had no vested interest in the family property and could have none in the lifetime of his parents. He had no estate to be divested. But we have travelled a long way from Manu. The Mitakshara joint family has taken the place of the patriarchal family, and a son now obtains a vested though indeterminate interest by birth. So it is not now true that a given son is not divested. By birth he obtains a vested interest, and on being given in adoption by his father it is divested. Of this there can be no doubt. In Kalgavda Tavanappa v. Somappa Tamangavda, Chandavarkar acting C.J says (P. 682):—

“The son, … begotten by an adopted Hindu before adoption, has vested rights in the ancestral property of the family of his birth. Rights of property once vested cannot be taken away except in the mode or modes prescribed by Hindu law. They cease either by death, sale, gift, degradation, disqualification or by adoption.”

It is not correct then to say that divesting is unknown to Hindu law, and the analogy taken by learned counsel from the rules of inheritance appears to me to be false. Certain physical disabilities such as lunacy disqualify a man from inheritance but do not divest any estate he may have acquired before it has arisen, and we have been asked to put adoption in the same category as a physical disability. I can see no justification for the comparison, for it is not suggested that such disqualifications remove a man from the family or caste. If we want an analogy we must seek it in a disability which outcasts a man such as a change of religion, and that was accompanied by forfeiture of inheritance (Mayne, s. 591). But analogy is a dangerous weapon, and apart from analogy it seems to me that the defendant Chhatrasangji has no case. The fundamental principle found by Shah, J. in the text of Manu is that loss of family means loss of everything that a man has or may acquire with the family. In Manu's time that meant loss of inheritance and of the gotra and right to prefer oblations, but later it included the loss of the vested interests acquired by birth. This appears to me to be conclusive. We cannot go back to the patriarchal family and ask how Manu would have answered the question. It has been answered by the Hindu lawyers who have expounded the law of the joint family. The family is the predominant feature of Hindu law, and the family wealth must go with the family name and the duty of performing oblations. The loss of the name entails the forfeiture of all other rights. Indeed the name and estate are inextricably joined together in Manu's text and logically and grammatically defendant 1932 No. 1 cannot keep the estate unless he can show that he can keep the name.

It has been suggested that there must be a special rule for impartible estates which are at the absolute disposal of the holder for the time being and can be alienated even by will (Rama Rao v. Raja of Pittapur). The family rights, it is argued, are non-existent and as these are the basis of the divesting rule cessante ratione cessat et ipsa lex. This, so far as I understand it, is the effect of the argument that defendant No. 1 had an absolute and uncontrolled interest in the estate. The answer to this argument, it seems to me, is that the rule is not based on the rights of the natural family during the lifetime of the adopted son in it, but on the existence of a family and the necessity for its continuance for religious purposes. In fact defendant No. 1 is a Hindu and he cannot escape from the disabilities of his status. He was a member of a Hindu family and he left it behind him and must leave the family wealth. I agree with my learned brother that this appeal must be dismissed.

Appeal No. 338 of 1927 is made on behalf of the boy adopted by Kesarba. He claims that Chhatrasangji must be supposed never to have existed in the family of the birth and that inheritance must be traced to his father Chandrasangji. In the alternative he pleads that his adoption divested Bhimsangji's interest.

The first argument is based on a passage from a judgment of Mitter, J. in Uma Sunker Moitro v. Kali Komul Mozumdar, cited with approval by their Lordships of the Privy Council in Nagindas Bhugwandas v. Bachoo Hurkissondas. The passage runs (p. 260):

“The theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, … and his complete substitution into the adopter's family, as if he were [had been] born in it.”

The authority of this statement of the rights, of an adopted son has been invoked in favour of the proposition that it must be supposed that an adopted son has never in fact been in his natural family even when he has married and begotten children whom he leaves in it. With respect I am unable to accept this argument as sound. Mitter, J. was speaking of the rights of the adopted boy in his new family, and not of the effect of his severance on the rights of the surviving members of his family of birth which is the question in the present case, and it would be very dangerous to assume that the learned Judge or their Lordships of the Privy Council meant to imply that rights vested in his children left behind him in his family of birth were divested by the adoption, for that would be the effect of holding that the adopted son had never been in his natural family. A decision is only an authority on the point decided, and not for rules which may seem to follow from it logically. It may be that to justify logically the antedating of the rights of the adopted son in his new family it is necessary to resort to a fiction; but there is no need of a fiction to settle the devolution of the property left behind him; and I cannot agree that we can deprive the heirs of an adopted man of their vested rights for the sake of logical perfection. We have been referred to Ramchandra v. Manubai, where Sir Basil Scott relying on Mitter, J.'s words held that a son given in adoption “cannot for any purpose be regarded as having existed in his natural family”. But in the later case of Manikbai v. Gokuldas Macleod, C.J and Crump, J. dissented from this view and pointed out that Scott C.J's remarks were obiter as clearly they were. It follows that we are not bound by them but must accept the view taken in the later case.

Mr. Thakor's other argument is that on Kesarba, mother of Chhatrasangji, there rested the religious obligation of continuing the line of her husband, and that she was, therefore, entitled to adopt a son to him after her son Chhatrasangji left the family without leaving a son or widow behind him. The responsibility for securing the oblations for her husband was a sufficient justification for the adoption of defendant No. 3, and his adoption divests any estate which may have vested in the interval. Learned counsel relies on Sri Raghunadha v. Sri Brozo Kishoro, the full bench case of our Court Ramkrishna v. Shamrao, and on Pratapsamg v. Agarsingji. The head-note of this last case sums up the first premise of his argument:—

“The right of a Hindu widow to make an adoption to her deceased husband is not dependent on her inheriting his estate. She can exercise the power, so long as it is not exhausted or extinguished, even though the property was not vested in her.”

It is his case that the foundation of the right to adopt is the necessity for providing a male heir to continue the religious life of the family and that a widow's right cannot be extinguished as long as the responsibility rests on her. She cannot be relieved of it until her son has a male heir, or, if he dies sonless, until his widow has provided an heir by adoption. It is in abeyance during the life of her son and his widow but revives if they both die without leaving a male descendant. This is the religious aspect. But it is not the law for this presidency. As early as in Rupchand Hindumal v. Rakhmabai, Melvill J., on the principle of natural justice, held that the adoption by a Hindu widow could not be allowed to divest an estate vested in another without the consent of that other, and in Bhimabai v. Tayappa Murarrao Batchelor J. held that the adoption by the widow of a watandar could not be allowed to divest the estate of a collateral who had succeeded to watan property as the nearest male heir of her husband. The learned Judge followed the Privy Council decision in Bhoobun Moyee's case, and in Rajah Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi Narsayya and Payapa v. Appanna Bhimabai v. Tayappa is binding on us, and the discussion of its reasoning is out of place in this Court in a case such as the Present which cannot be distinguished on the facts. Defendant No. 3 must, therefore, fail.

The third appeal is made by the plaintiff who wishes to set aside the alienation made by defendant No. 1 before his adoption. He cannot succeed since he has based his claim on the allegation that the lands in question, which were not part of the original taluka but were an accretion purchased out of income, had become incorporated in the taluka and were subject to the same tenure. This may be true; at any rate, his opponent Kesarba, who was the oldest of the parties and best qualified to speak, admitted that on the death of a talukdar custom gave the taluka to his eldest son and maintenance grants to his younger sons and no distinction seems to have been made between taluka land and accretions. But if this be correct the plaintiff must fail; for, under Hindu law a talukdar can alienate his land in any way by sale, gift or will. There is a statutory restriction, but that restriction can affect only the taluka lands proper. The vanta lands have never been so mixed up with the taluka lands as to be indistinguishable, and are held on a different tenure so far as Government is concerned. What the plaintiff tried to prove was a family custom of inheritance originating in the tenure but not that the tenure was the same. I agree, then, with my learned brother, that section 31 of the Gujarat Talukdars' Act has no bearing on our case, and that the plaintiff cannot succeed on the ground which he has taken up.

The result is that all these appeals must be dismissed with costs.

Appeals dismissed.

B.G.R