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Bachoo Harkisondas v. Nagindas Bhagwandas

Bombay High Court

Feb 2, 1914

Judgment

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Factual and Procedural Background

This appeal arises from a decision of Macleod, J., concerning the respective shares in a joint ancestral property descended from a common ancestor, Nagardas Sobhagohand. Nagardas had two sons, Harkissondas and Bhagwandas. Harkissondas died on 14 September 1900 leaving a pregnant widow Gangabai; Bhagwandas died on 17 December 1900 leaving a widow Mankorebai, who had been given authority to adopt.

The defendant Bachoo is the natural son of Harkissondas, born 18 December 1900. The plaintiff Nagindas was adopted by Mankorebai on 17 February 1901. A prior suit (Suit No. 128 of 1901) held the adoption of Nagindas to be valid but left undecided the share to which he would be entitled on partition. The present suit seeks determination of that quantum of share on partition between the plaintiff (adopted grandson) and the defendant (natural grandson).

The parties are Gujaratis governed by the Mitakshara law, subject to the Mayukha where applicable. At trial the learned Judge (Macleod, J.) held that the rule relied upon in certain Hindu authorities conflicted with the Mitakshara and decreed an equal partition between plaintiff and defendant; the defendant appeals that judgment.

Legal Issues Presented

Whether, in a partition of ancestral property governed by Mitakshara (with Mayukha authority among Gujaratis), an adopted grandson (adopted by a widow of a predeceased son of the common ancestor) is entitled to an equal share with a natural-born grandson of another predeceased son, or whether the adopted grandson is entitled to an inferior share (specifically one-fourth of the natural son's share).
Whether the passages relied upon in the Dattaka Chandrika (and related authorities such as Vasishtha and interpretation in the Dattaka Chandrika) conflict with the rule as to partition derivable from the Mitakshara, so as to prevent giving effect to the Dattaka Chandrika rule.

Arguments of the Parties

Defendant's Arguments

The defendant contended that, as the natural (biological) son of his father Harkissondas, he was entitled to a share four times as large as that of the plaintiff, on the ground that an adopted son is entitled only to one-fourth of the share of a legitimate natural son.
On this basis the defendant asserted a preferential share and argued that the learned Judge erred in treating the Dattaka Chandrika rule as conflicting with Mitakshara law and in decreeing an equal partition.

The opinion does not contain a detailed account of any additional specific arguments advanced on behalf of the plaintiff in opposition to the defendant's contention beyond the fact of adoption having been held valid and that the quantum (1:4 in favor of the defendant) was not disputed if the defendant's legal contention were accepted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raghubanund Doss v. Sadhu Churn Doss	Held that an adopted son of a predeceased natural son of a common ancestor could not share equally on partition with the natural son of another predeceased natural son; decision based on a passage in the Dattaka Chandrika (verses 24 and 25).	The Court referenced that case as an authority where similar facts were decided in favor of assigning an inferior share to the adopted grandson. The opinion discusses that the reasoning of a later judge (Markby, J.) in that case rejecting an alternate line of reasoning, and the present Court aligns with the view that Dattaka Chandrika supports giving the adopted grandson an inferior share.
Waman Raghupati Bova v. Krishnaji Kashiraj Bova	Recognized the Dattaka Chandrika as a leading authority on adoption in that Court.	The opinion cites this Full Bench decision to support the proposition that the Dattaka Chandrika is a respected authority in the Court's jurisdiction and therefore its rule warrants consideration when determining shares between natural and adopted relations.
Debi Parshad v. Thakur Dial	Examined the Mitakshara and enunciated the law concerning distribution per stirpes among descendants; opinions in that case were used to reject the learned Judge's assumption that primary division on partition must be an equal (half-and-half) division irrespective of the quality or quantity of members in each branch.	The present Court relied on the principles in Debi Parshad v. Thakur Dial to reject Macleod, J.'s assumption that partition must be made half-and-half at the first division; the Court found those earlier opinions consistent with an interpretation favoring allocation by representation (per stirpes) and the recognition of relative rights among natural and adopted successors.

Court's Reasoning and Analysis

The Court proceeded through a text-based analysis of Mitakshara provisions and related authoritative commentaries (notably the Mayukha and Dattaka Chandrika), focusing on whether the Dattaka Chandrika rule that an adopted descendant is entitled to an inferior share conflicted with the Mitakshara and therefore could not be applied.

The Court observed that Section 5 of the Mitakshara deals with allotment of shares to grandsons and applies the principle of distribution per stirpes ("the allotment of shares is according to the fathers"). That provision limits the maximum share to which a group of grandsons by the same father are entitled, but does not itself address the "quality" (i.e., superiority or inferiority) of individual sharers.

The Court then examined Section 11 of the Mitakshara (and associated placita) which discusses sons by birth and sons by adoption and sets out a classification of sons. Placitum 24 (as set out in the opinion) records a Vasistha text interpreted to ordain "a quarter share to other inferior sons, when a superior one exists" — specifically, "When a son has been adopted, if a legitimate son be afterwards born, the given son shares a fourth part." Placitum 25 (Catyayana) is similar, indicating inferior treatment of non-legitimate-class claimants.

The Court noted Vijnaneshvara's remarks that the determination of grandsons' shares is through the father and the general treatment of adopted relations as inferior sharers. It cited additional textual support (including the Mayukha discussion of the Dvyamushyayana and a Vribaspati text) illustrating that adopted or secondary sons occupy an inferior position vis-à-vis a legitimate natural son.

The Court considered the argument that the Mitakshara's discussion of "sons" should not be applied to "grandsons" and that the owner of the inheritance (Nagardas) was the relevant focus. The Court rejected that narrow reading by noting:

Placitum 22 states that the right to share and the right to perform funeral oblations go together;
It was undisputed in the present case that Bachoo (the natural grandson) is the proper descendant to offer the funeral cake to his grandfather Nagardas; and
The term "son" (putra) in passages of Yajnavalkya and Mitakshara includes grandson.

On these bases the Court concluded that the principles articulated in Section 11 (and related placita) as to the inferior status of adopted sons should be taken to apply to grandsons in a partition context. The Court therefore found no conflict between the Mitakshara and the rule in the Dattaka Chandrika that an adopted grandson is entitled to an inferior share; rather, the Mitakshara-supported materials corroborate that rule.

The Court also addressed and rejected the learned Judge's assumption that the primary division on partition must be an equal half-and-half split irrespective of the relative qualities of members in each branch — treating Section 5's per stirpes rule as not mandating equal first-division halves that ignore the relative legal status of sharers. The Court referenced earlier decisions (including Debi Parshad v. Thakur Dial) to show that the line of reasoning adopted by Macleod, J. was inconsistent with that precedent and the Mitakshara commentary.

Having concluded that the Dattaka Chandrika rule (and allied texts such as Vasishtha as interpreted in commentaries) is consistent with Mitakshara principles when properly read, the Court applied that rule to the facts and directed partition on a ratio reflecting the inferior share of the adopted grandson.

Holding and Implications

Holding: The decree of the lower Court was varied. The Court directed partition of the ancestral estate between the plaintiff (adopted grandson) and the defendant (natural grandson) by allotting one share to the plaintiff and four shares to the defendant. The costs of the appeal were ordered to be paid out of the estate. The concluding notation in the record states: "Decree varied."

Implications:

Direct effect on the parties: the plaintiff (Nagindas) is entitled to one share and the defendant (Bachoo) to four shares of the ancestral property, and the earlier decree of equal partition is set aside to the extent inconsistent with this allocation.
On broader legal consequences: the opinion treats the Dattaka Chandrika rule (and related Vasishtha texts as interpreted in commentaries such as the Mayukha) as compatible with Mitakshara principles and applicable to grandsons, thereby supporting the proposition that an adopted descendant may take an inferior share relative to a natural-born descendant in a partition context. The opinion does not elaborate further on the creation of a novel precedent beyond applying and reconciling existing textual authorities and prior decisions.

G.P/R.K

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1. This is an appeal from a decision of Macleod, J., with reference to the rights of the plaintiff in the joint ancestral property, in which, it is admitted, he and the defendant Bachoo are interested. The common ancestor of the parties was Nagardas Sobhagohand, and this suit is based upon the allegation that the property now in dispute is ancestral property coming from Nagardas. Nagardas had two sons Harkissondas and Bhagwandas. Harkissondas died on 14th September 1900 leaving a widow Gangabai who was then pregnant. Bhagwandas died on 17th December 1900 leaving a widow Mankorebai, to whom he had given authority to adopt. On 18th December the defendant, Bachoo, was born to Harkissondas and on 17th February 1901, Mankorebai adopted the plaintiff, Nagindas. It has been held in Suit No. 128 of 1901 that Nagindas was validly adopted into the family, but no decision was given as to the share to which he would be entitled upon a partition. That is the question which arises in the present suit. The parties being Gujaratis are governed by the law of Mitakshara, except where it conflicts with the provisions of the Mayukha. The defendant contends that he, as the natural son of his father, is entitled to a share four times as large as that of the plaintiff, on the ground that an adopted son is entitled only to a fourth of the share of a legitimate natural son. If the defendant is entitled to a larger share on the ground that he is the natural born son of his father, it is not disputed that in this Presidency the plaintiff will only be entitled to take a shire equal to one-fourth of the defendant's share, that is to say, one-fifth of the entire property. The question of the quantum of the share not being in dispute, the only question we have to decide is whether the defendant is right in his contention that he can claim a preferential share. The point has been decided upon facts similar to those in the present case by a Bench of the Calcutta High Court in Raghubanund Doss v. Sadhu Churn Doss (1). The parties were, as here, governed by the Mitakshara law and the Court basing its decision upon a passage in S. 5, Dattaka Chandrika (verses 24 and 25) held that the adopted son of a predeceased natural son of a common ancestor could not share equally on partition with the natural son of another predeceased natural son of the common ancestor. The decision has been criticized by Mr. Mayne who (in S. 190 of his book) would confine the application of the passage in the Dattaka Chandrika to cases of the competition with a paternal uncle of an adopted son of the deceased owner of the estate. That result is arrived at by the assistance of certain glosses or additions to be found in Sutherland's Translation which are not in the original and his conclusion is not possible upon the translation furnished by Sir Ramkrishna Bhandarkar and accepted by the parties. According to the translation adopted by the Court in Raghubanund Doss v. Sadhu Churn Doss of the passage in question and according to a translation made by Sir Ramkrishna Bhandarkar, there can be no doubt that the Dattaka Chandrika, if applicable, does assign to the adopted grandson the inferior share. That is conceded by the learned Judge, but he says that the rule laid down in that work is in conflict with the provisions of the Mitakshara, and therefore, cannot be given effect to between the parties. He has accordingly passed a decree for partition equally between the plaintiff and the defendant Bachoo. The defendant appeals, and it is contended on his behalf that the learned Judge is in error in thinking that there is any conflict between the rule as laid down by the Dattaka Chandrika and the rule which must be evolved by an application of the law as enunciated in the Mitakshara. It has been said by a Full Bench of this Court that the Dattaka Chandrika is in this Court a leading authority on the subject of adoption: see Waman Raghupati Bova v. Krishnaji Kashiraj Bova (2). The learned Judge bases his decision upon the assumption that under the Mitakshara law in the case of a partition the primary division is per stripes irrespective of the quality or quantity of the members belonging to each strips, and therefore the first division must and can only be half and half as if Bhagwandas and Harkissondas had equally vested interests in the joint family property. This line of reasoning was rejected by Markby, J., in Raghubanund Doss v. Sadhu Churn Doss and is inconsistent with the law enunciated in Debi Parshad v. Thakur Dial (3) after a careful examination of the Mitakshara. The opinions expressed in those cases are in accord with the fifth verse of Nilkanth in S. 1 of the Mayukha where he says:

“Now the pre-existing undefined ownership of more thin one brother, etc., is defined by partition.”

2. That portion of the Mitakshara, with which we are concerned, is divided into two chapters, the first of which after some definitions deals with what is described as inheritance not liable to obstruction, while the second chapter deals with inheritance liable to obstruction. The whole of the two chapters is stated in the first placitum to be an explanation of the partition of heritage and heritage is stated to signify wealth which becomes the property of another solely by reason of his relation to the owner. According to placitum 3, inheritance not liable to obstruction is the wealth of a father and of the paternal grandfather which becomes the property of his sons and grandsons in right of their being such sons and grandsons. Property liable to obstruction is property which devolves upon other relations upon the death of the owner in default of male issue, and the existence of such a son and the existence of the owner are therefore obstructions to such inheritance. Chapter 1 therefore being concerned with inheritance not liable to obstruction deals successively with the rights on partition of the inheritance of different classes of sons. S. 2 of that chapter deals with the case of a partition made by the father in his lifetime, in which event he is entitled to give the eldest the best share, the other sons being given equal shares. That class of partition is now obsolete. (It is moreover in S. 5, V. 7, limited by Yijnaneshwara to the father's self-acquired property.)

3. Section 5 deals with the allotment of shares to grandsons, and here the author applies the principle of distribution per stirpes which the learned Judge doubtless had in mind in that part of his judgment to which reference has been made. The text of Yajnavalkya, upon which the dissertation is based, is as follows:

“But among grandsons by different fathers the allotment of shares is according to the fathers.”

4. Vijnaneshwara in commenting upon the text says:

“Although the ownership by birth of the grandsons in the wealth of the grandfather is without distinction from that of sons, yet the determination of their shares in the grandfather's wealth is through the door of the father only and not with reference to their own selves.”

5. This translation is baldly literal. The meaning is illustrated as follows:

“If any separated brothers die leaving male issue and the number of sons be unequal, one having two sons, another three and a third four, the two receive a single share in right of their father; the other three take one share appertaining to their father; and the remaining four similarly obtain one share due to their father and the sons of deceased brothers receive the shares of their own fathers.”

6. This is a rule which lays down the maximum share to which as a group grandsons begotten by the same father are limited. It does not in terms lay down that grandsons of different qualities will necessarily have equal rights in the ancestral estate. Section 6 relates to the rights of a posthumous son and of one born after partition. Section 8 relates to the unequal interests of sons born by wives of the same father who belong to different castes of unequal position. Section 10 relates to the rights of the Dvyamushyayana or son of two fathers, that is, his natural and his adoptive father. Section 11 deals with sons by birth and sons by adoption. That is the heading of the section in Colebrooke's Translation, and for practical purposes the heading will suffice, although the section really deals, with twelve classes of sons; for the sons by birth and the sons by adoption are the only two classes of sons recognized at the present day and this was so even in the 17th century, the time of Nilkantha, the author of the Mayukha, who says (S. 4, V. 46) that with the exception of the given son secondary sons are set aside is the Kali or present age. In this connexion Sir Henry Maine in his Early Law and Custom, p. 100, observes:

“The growing propularity of adoption, as a method of obtaining a fictitious son, was due to moral dislike of the other modes of affiliation which was steadily rising among the Brahman teachers in the law schools.”

7. Regarding adoption by a widow after the death of her husband, he remarks on p. 108:

“That the capacity of the widow to produce a son to her deceased husband through the Levirate has …. led to the power very generally vested in her by Hindu law and usage of taking a son to her deceased husband by simple adoption.”

8. The Section 11 is important for the purposes of this suit, for it distinguishes between the shares of sons by birth and other sons of inferior “quality” (to use the expression of the learned Judge in the passage above cited). The first placitum of that chapter is as follows:

“A distribution of shares, among sons equal or unequal in class, has been explained. (That is a reference to S. 8). Next, intending to show the rule of succession among sons, principal and secondary, the author describes them.”

9. Then is set out the classification of sons into twelve classes according to Yajnavalkya. After comments upon each class described by Yajnavalkya that Sage's succeeding text is set out and discussed. The text is:

“Among these the next in order is heir and presents funeral oblations on failure of the preceding.”

10. In placitum 22 the commentary proceeds:

“Of these twelve sons above mentioned, on failure of the first, respectively the next in order, as enumerated, must be considered to be the given of the funeral oblation or performer of obsequies, and taker of a share or successor to the effects.”

11. Placitum 23:

“If there be a legitimate son and an appointed daughter, Manu propounds an exception to the seaming right of the legitimate son to take the whole estate.”

12. Placitum 24:

“So the allotment, of a quarter share to other inferior sons, when a superior one exists, has been ordained by Vasishtha: ‘When a son has been adopted, if a legitimate son be afterwards born, the given son shares a fourth part’.”

13. Placitum 25:

“Accordingly Catyayana says: ‘If a legitimate son be born the rest are pronounced sharers of a fourth part, provided they belong to the same tribe; but if they be of a different class they are entitled to food and raiment only’.”

14. It will here be seen that Vijnaneshvara takes the text of Vasishtha to be an authority for the allotment of a quarter-share to an inferior son when a superior one exists. The inferiority of the adopted son to the natural-born son is forcibly illustrated by a text of Vribaspati (XV. 34):

“As in default of ghee, oil is admitted by the virtuous as a substitute at sacrifices so are the eleven sons admitted as substitutes in default of a legitimate son of the body and of an appointed daughter.”

15. It is also well illustrated by the discussion in the Mayukha (a comparatively modern commentary and one of special authority among Gujaratis to which division the parties to this suit belong) regarding the Dvyamushyayana, the son of two fathers, S. 5, pl. 25:

“If both (the natural and the adoptive father) have legitimate sons he offers an oblation to neither, but takes a quarter of the share allotted to a legitimate son of his adoptive father from this text of Vasishtha: ‘When a son has been adopted’, etc.”

16. It is upon this text of Vasishtha that the passage in the Dattaka Chandrika, to which we are asked to give effect, is based. Mr. Golapchandra Sarkar in his Treatise of Hindu Law, p. 171 (4th Edition) thus concisely describes the effect of the passage:

“But the author of Dattaka Chandrika extends this rule of difference in shares to cases of partition between male descendants in the male line down to the great-grandson where there is competition between an adopted and real descendant. He does so by analogy which would make the rule applicable to all cases in which there is competition between a real and an adopted relation.”

17. It appears to us that there is nothing in the chapter of the Mitakshara relating to inheritance not liable to obstruction which is in conflict with the rule evolved by the author of the Dattaka Chandrika, for, as we have pointed out, Section 5 of the Mitakshara, in dealing with the allotment of shares among grandsons is in no way concerned with the “quality” of the individual sharer; while S. 9 affirms most distinctly the inferiority as a sharer of the adopted to the natural-born legitimate son of the owner of the inheritance. But it is argued that the owner of the inheritance in this case is Nagardas and that the discussion of sons in S. 11 does not warrant the application to grandsons of the disabilities of sons. It is however to be observed that placitum 22 declares that the right to share and the right to give the funeral oblation, go together. It cannot be, and is not, disputed that of the two competitors in the present case Bachoo is the proper descendant to offer the funeral cake to his grandfather Nagardas. Nor can it be disputed that the word “son” (putra) in various passages in Yajnavalkya and Mitakshara includes grandson. We are of opinion that the discussion relating to sons in S. 9 should be taken to relate to grandsons also. The offering of the funeral cake can be made by sons, grandsons and great-grandsons. There is therefore nothing illogical in the conclusion arrived at by the author of the Dattaka Chandrika.

18. We vary the decree of the lower Court by directing the commissioner to partition the ancestral estate between the plaintiff and the defendant by allotting one share to the plaintiff and four to the defendant. Costs of this appeal out of the estate.