Sanderson, C.J:— This is a suit by Hira Lal Bogla against his brother Gungadhur Bogla in which the Plaintiff asks for a declaration that be and the Defendant are entitled in equal shares to the property of Rani Mohori Bibee a widow who had been the fourth wife of Rajah Sewbux Bogla: for administration and partition of Mohori Bibee's estate and other incidental relief. The case raises the question whether the Plaintiff, who was the adopted son of Rajah Sewbux Bogla and his first wife, is entitled to any (and if so what) share of the stridhan property of Rajah Sewbux Bogla's fourth wife in competition with the Defendant who was the son of the Rajah and his second wife.
The details of the family tree are given in the judgment of Chitty, J., and I need not repeat them, the only point which I need emphasize being that the fourth wife, whose property is in question, died without issue. It appears that a box of jewellery, alleged to be valuable, which had been deposited in a Bank by Mohori Bibee, constituted the main part of her estate. It was, however, alleged by the Plaintiff, though denied by the Defendant, that there was other property belonging to Mohori Bibee besides the jewellery, viz., certain Hundis.
The first of the issues raised, was as follows:—Were the ornaments claimed in the plaint the separate stridhan property of Mohori Bibee, or did they belong to Rajah Sewbux Bogla?
This issue has not yet been decided, and the result may be that if on the enquiry, which must be held hereafter, it turns out that the jewels in question were the property of the Rajah and were not the separate stridhan of Mohori Bibee, the above-mentioned question would not arise: for the jewels would pass under the Rajah's Will to the Defendant, and if there were no other property of Mohori Bibee besides the jewellery, then the discussion which we have had would become merely academical.
It was not until some considerable time had been occupied in argument that the true position became clear to the Court, otherwise, personally, I should have been in favour of postponing the decision of this case until the above-mentioned enquiry had been held.
But in view of the fact that considerable time had already been spent over the case, and that in one event the point will be material, we come to the conclusion that in the interests of the parties it would be best for us to give a decision at once.
It is agreed that the family were governed by the Mitakshara School of Hindu Law, but the learned Counsel for the Defendant urged that the Mitakshara was uncertain or doubtful on the point in question and relied upon a passage in Manu—on the other hand it was argued for the Plaintiff that the provisions of the Mitakshara were clear and admitted of no doubt. The Mitakshara in Chap. II, sec. XI, para. 9, provides as follows:—“If a woman dies “without issue,” that is, leaving no progeny, in other words, having no daughter, nor daughter's daughter, nor daughter's son, nor son, nor son's son; the woman's property, as above described, shall be taken by her kinsmen; namely, her husband and the rest, as will be (forthwith) explained.” Para. 11 contains further provisions as to the succession of a woman dying without issue having regard to the different forms of marriage. This marriage, it was agreed, must be taken to be governed by one of the first named four modes in which event the whole property of a woman dying without issue as before stated belongs in the first place to her husband: on failure of him it goes to his nearest kinsmen (sapindas). This is confirmed by para. 25.
It was argued, however, on behalf of the Defendant that these paragraphs do not apply to this case, because it was said that Mohori Bibee was not a woman who died without issue, and reliance is placed upon the text of Manu, which says that “If among the wives of the same man one becomes mother of a son, Manu says that by that son all of them become mothers of male children,” and inasmuch as Rajah Sewbux's second wife had a son, viz., the Defendant, Mohori Bibee his fourth wife became a mother of male issue, and, therefore, did not die without issue. In other words the learned Counsel's first and main point was that the Defendant succeeded as the direct issue of Mohori Bibee, and that the Plaintiff, being merely an adopted son, did not take a share.
In my judgment this argument ought not to prevail.
Even if the text in Manu has reference to questions of inheritance, as to which there seems considerable doubt—see Annapurni Nachiar v. Forbes and Bhiniacharya v. Ramacharya(2), in my judgment the provisions in the paragraphs in the Mitakshara, to which I have referred, are not uncertain or doubtful and they govern this case. An examination of the provisions of this section of the Mitakshara convinces me that the paragraphs, which are material to this case, viz., 9 and 11, refer to the case of a woman dying without issue in the ordinary meaning of the words, and that the fiction created by the above-mentioned text in Manu does not exclude the case from these provisions.
Applying, therefore, the rules there laid down, the property of Mohori Bibee on her death would have belonged to her husband if he had been alive; but “on failure of him, it goes to his nearest kinsmen sapindas.”
Both the Plaintiff and the Defendant are sapindas of their father, but it was contended on behalf of the Defendant that he was the nearest sapinda, and was superior to the Plaintiff who was merely an adopted son. With this I do not agree: With respect to this matter I think that the rights of the Plaintiff, the adopted son, are similar to those of the defendant, the natural born son—[see Joykishore v. Panchoo Baboo and Padma Coomari Dabee v. Court of Wards], and that they both share in the property of Mohori Bibee as sapindas of their father.
The next point taken on behalf of the Defendant was that even if both the Plaintiff and Defendant came in as sapindas of their father, the rule which is applicable in certain cases, viz., that the adopted son takes one-fifth only, should be applied to this case, which is one of competition between a real and an adopted son. The rule upon such a point as this has been laid down by the Privy Council in Padma Coomari Dabee v. Court of Wards, as follows:— 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.
Now there has been no text produced which exactly covers the case in question, but the learned Counsel for the Defendant relies on a passage in Mr. Sastri's Hindu Law, 4th Ed., p. 171, which refers to the Dattaka Chandrika. This authority apparently extends the above-mentioned rule 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, and he arrives at that result by way of an analogy which might cover all cases in which there is such competition.
In my judgment, however, the proper course to adopt is to apply the rule laid down by this Court in the above-mentioned case Joykishore v. Panchoo Baboo and in the above-mentioned Privy Council decision, Padma Coomari Dabee v. Court of Wards, viz., that the rights of an adopted son, unless curtailed by express texts, are in every respect similar to those of a natural son, and as there is no express texts curtailing the rights of an adopted son who, like the Plaintiff in this case, is claiming succession to a share of the property of his adopting father's fourth wife, in my judgment, the Plaintiff is entitled to share equally with the Defendant.
Since this judgment was written my attention has been drawn to the decision of the Privy Council in Nagindas Bhugwandas v. Baehoo Hurkissendas, which was given on the 26th November 1915, and the report of which has only recently reached this country. On the points which are material to this case, it confirms the conclusions I had arrived at.
As to the argument of estoppel which was raised but not strongly urged, there is nothing in the submission to arbitration or the award which, in my judgment, prevents the Plaintiff from making the claim in this case.
Finally the learned Counsel for the Defendant asked that the question whether Mohori Bibee had any property of her own should be tried by a learned Judge on the Original Side, and intimated that he would take this issue at the Defendant's risk.
In my judgment it is desirable that this issue should be disposed of as soon as possible: if decided in one way, it will dispose of the whole case and this may save the parties further expense, and the best way of getting a decision on this issue will be to refer it for trial to a Judge on the Original Side.
This appeal will be dismissed with costs. The costs of the issue to be tried will be in the discretion of the learned Judge who tries it.
Woodroffe, J.:— I am of opinion that the text of Manu, according to which the son of a man by one of his wives is as a son to all his wives who are thus all mothers, does not operate for the purpose of determining the succession so as to make the Appellant issue of Sreemutty Mohori Bibee. In my opinion the Appellant is not entitled to claim as the son of that lady. It is unnecessary then to consider whether this text should be construed to include also the Plaintiff Hira Lal who was an adopted son of Rajah Sewbux Bogla through his wife Soli Bibee as well as Gungadhur his natural son through his second wife Mohori Bibee. But if the text were to be held applicable to establish the Appellant's contention that he by a fiction takes as son of the deceased, which in fact he was not, then as neither the one nor the other are sons of Mohori Bibee in the natural sense of that term, I should in that case have seen no sufficient ground for distinguishing between the positions of the Plaintiff and the Defendant, and both Plaintiff and Defendant would be heirs in equal shares. As, however, pointed out by Chandavar-kar, J., in Bhimacharyya v. Ramacharyya, the text of Manu on which learned Counsel for the Appellant relies has been explained in such a way as to imply that its application is of a limited character having no necessary reference to questions of inheritance. There are difficulties in applying that text in the way suggested by the Appellant which the judgment of my brother Mookerjee explains. In my opinion according to the Mitakshara text both the Appellant and Respondent succeed to the stridhan of their step-mother as the sapindas of their father, her husband, and the Appellant does not come in as issue as he contends. For Hira Lal as the adopted son of Soli Bibee is the stepson of the deceased just as Gungadhur is. The question then arises whether if both the Plaintiff and Defendant are entitled to claim as sapindas of their father, in what shares do they take. For the Appellant it is argued that in that case the Plaintiff as adopted son is only entitled to one-fourth which, according to the decision of this Court, is one-fourth of that which the Defendant gets or one-fifth to his four-fifths. The natural justice of the case favours equality of division, for Hira Lal on being adopted ceased to belong to his natural family and should not in the absence of any provision to that effect suffer by reason of the birth of natural sons to the father by other wives than she who was associated in such adoption. Though in succession to the estate of a father the adopted son takes lesser share than the natural born son, no authority has been cited which directly establishes such a rule in the present case of inheritance to stridhan where neither Plaintiff nor Defendant are the natural or adopted sons of the lady whose property is claimed and where no natural reason exists for distinguishing between their respective cases. On the other hand both are sapindas, and as regards this sapinda relationship there is no difference between an adoptive and natural son. The adoptive son is his father's sapinda as the natural son is. Both are then entitled as sapindas of their father, the deceased's husband. There is no competition between them unless (as is not the case) there is any text which establishes a preferential claim in favour of the adoptive son. As against this there is authority in favour of holding that the adoptive son in general occupies the some position as a natural son. Thus in Joykishore v. Panchoo Baboo, it was held that the rights of an adopted son, unless contracted by express texts, are in every respect similar to those of a natural born son. There is, therefore, in my opinion no ground for disturbing the decision of Chitty, J., on this point. But in the absence of any special rule affecting the kind of succession before us, the Plaintiff and Defendant or adoptive and natural step-sons of the deceased should take in equal shares. I hold therefore upon the fifth and sixth issues that Plaintiff is an heir of Mohori Bibee and that he is entitled to an equal share in her estate (whatever it may be) with the Defendant.
What that estate is and in particular whether the ornaments claimed in the plaint were in fact the stridhan property of the deceased to which the above findings apply, is not here decided for the facts are not before us nor any finding thereon. Mr. Chuckerbutty for the Appellant has contended that the deceased had no estate which the Court can administer and that he should have Been permitted to lead evidence as to this at the time so that an administration account might have been avoided. On the other hand it is contended that the Defendant has admitted that there is some estate, and therefore the question what that estate is will be determined under the preliminary administration decree. I think that this matter should have been determined at the trial, for if it turned out that there was no property of the deceased the suit would have been dismissed, and if the amount of the estate had been shown to be trivial, the Plaintiff might not have elected to take an administration decree. The Court should therefore first determine whether there is any estate of Sreemati Mohori Bibee and only in the event of its finding in the affirmative make an administration decree. As regards issues 3 and 4 the estoppel alleged is not in my opinion established, and no question has arisen in this appeal as to the learned Judge's finding on the last or seventh issue. This disposes of all the issues raised. In my opinion the appeal fails and should be dismissed with costs.
Mookerjee, J.:— This appeal involves an important question of Hindu Law of first impression, which may be formulated in these terms. A Hindu lady, governed by the Mitakshara School of Law, dies possessed of stridhan property; the rival claimants to her estate are, respectively, an adopted son of her husband taken in conjunction with another wife, and a son of her husband born of the womb of a third wife; is the latter the preferential heir in competition with the former, or do they both succeed by right of inheritance if so, do they take in equal or in unequal shares? This question has arisen in connection with the estate alleged to have been left by Rani Mohori Bibee, the widow of Rajah Sewbux Bogla of this city. The Rajah successively took four wives. He had no son by his first wife, and consequently took a son in adoption in conjunction with her; that son is the Plaintiff in these proceedings and is the Respondent before us. After the death of his first wife, the Rajah took a second wife, by whom he had a son, the Defendant in these proceedings, and Appellant before us. After the death of the second wife, the Rajah took a third wife by whom he had a daughter; we are not concerned with her in these proceedings. After the death of the third wife, the Rajah took Mohori Bibee as his fourth wife; the Rajah subsequently died on the 5th October 1908, and about two years later, the Rani died on the 5th June 1910. The Appellant claims her whole estate as her sole heir, and contends, in the alternative, that he is entitled to at least a four-fifths share thereof. The Respondent asserts, on the other hand, that he is entitled to a half share of the estate left by the co-wife of his adoptive mother. Mr. Justice Chitty has upheld this contention. The Defendant has reiterated in this Court the objections unsuccessfully urged on his behalf before the trial Judge, and his claim has been sought to be sustained by reference to texts of Manu (IX, 183) and Yajnavalkya (II—117, 145). Indeed, no reference was made to the Mitakshara by the Counsel for the Appellant till his attention was drawn thereto by the Court. It is, consequently, desirable to emphasise the cardinal rule enunciated by Sir James Colvile Collector of Madura v. Mootoo Ramalinga(6), namely, that the duty of an European Judge who is under the obligation to administer Hindu Law, is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal and has there been sanctioned by usage, for, under the Hindu system of law, clear proof of usage will outweigh the written text of the law. The parties to this litigation are admittedly governed by the Benares School of the Mitakshara Law, and we must consequently turn in the first place to the Mitakshara, which, in the words of Sir James Colvile, is universally accepted by all the schools, except that of Bengal, as of the highest authority, and which, in Bengal, is received also as of high authority, yielding only to the Dayabhaga in those points where they differ.
Sec. XI of the second chapter of the Mitakshara, as translated by Colebrooke, treats of the separate property of a woman. The first eight paragraphs embody an exposition of the nature of stridhan. The author next propounds the distribution of stridhan on the basis of the text of Yajnavalkya (II, 145) “her kinsmen take it, if she the without issue.” Para. 9 lays down that if a woman the without issue, that is, leaving no progeny, that is, leaving no daughter, nor daughter's daughter, nor daughter's son, nor son, nor son's son, the woman's property shall be taken by her kinsmen, namely, “her husband and the rest.” Paras. 10 and. 11 distinguish different heirs according to the diversity of the marriage ceremonies; it is there laid down that in any of the four approved modes of marriage, the property belongs, in the first place, to her husband; on failure of him, it goes to his nearest kinsmen (sapindas). Vijnaneswar then proceeds, in para. 12, to consider the case of the woman who leaves progeny, i.e, has issue, and, in the six following paragraphs, defines the order of succession of daughters and their descendants. We next come to para. 19: “if there be no grandsons in the female line, sons take the property: for it has been already declared “the male issue succeeds in their default.” Yajnavalkya II, 118, Manu IX, 192 likewise shows the right of sons as well as of daughters to their mother's effects.” When the mother is dead, let all the uterine brothers and the uterine sisters equally divide the maternal estate Para. 20 interprets this to mean that brothers and sisters do not succeed together, but that one class excludes the other. Para. 21 follows with an explicit statement that the whole blood is mentioned to exclude the half-blood. Paras. 22 and 23 deal with the exceptional case of the daughter of a rival wife of superior class, who takes the property of a childless step-mother of an inferior class. Para. 24 treats of grandsons who, on failure of sons, inherit the wealth of their paternal grandmother. Para. 25 then lays down that, on failure of grandsons also, the husband and other relatives succeed, and thus brings us back to the rule formulated in para. 9. The question consequently arises, whether the lady, whose estate forms the subject of controversy, died “without issue” within the meaning of para. 9, or “left progeny” within the meaning of para. 12. The Appellant maintains the latter alternative, and in support of his contention relies upon the text of Manu (IX, 183): “if among all the wives of one husband, one had a son, Mann declares them all to be mothers of male children through that son.” The argument is founded on this text, that if one of the several wives of a person gives birth to a son, all the wives become the mothers of such son, who thereupon becomes entitled to succeed by inheritance to the wealth of all the wives of his father, as if he were their son within the meaning of the text of the Mitakshara. In my opinion, this process of reasoning is based on a manifest misapplication of the text of Manu. Kulluka Bhatta and Raghabananda, two of the Commentators of Manu, (Mandalik's Ed., p. 1208) explain the purpose of this text; the former points out that an adoption by the childless wife is excluded in such a case; the latter observes that this excludes levirate. This is also the view taken by Sarvajnanarayana, another commentator of Manu. In this view, it is needless to consider whether the term in the text of Manu means (mother of a naturally born son) as the Commentator Nandana interprets it. It is sufficient for our present purpose to note that texts of the same import are found in other institutes, which indicate that this fiction had a very restricted application. Thus, Vishnu (XV, 41) ordains that “amongst wives of one husband also, the son of one is the son of all”; this is asserted to show that such son must present funeral oblations to all the wives of his father after their death (S.B.E Vol. VII, p. 65). To the same effect is the ordinance of Vasishtha (XVII, 11): “if among many wives of one husband, one have a son, they all have offspring through that son; thus says the Veda.” This has no reference to the right of succession of the son to the wealth of the wives of his father (S.B.E Vol. XIV, p. 85). The context where the text mentioned occurs in Manu makes it reasonably plain that it has no reference to the question now under consideration. The text which immediately precedes declares as follows:—“if among brothers, sprung from one father, one have a son, Manu has declared them all to have male offspring through that son.” This is quoted in the Mitakshara (Chap. I, sec. 11, para. 36) and is explained by Vijnaneswar as intended to forbid the a option of others, if a brother's son can possibly be adopted, but not intended to declare him as the son of his uncle. It may be observed here parenthetically that the Judicial Committee have ruled that not only does not this text invalidate an adoption in such circumstances, but that all texts which prescribe the preferential adoption of the son of a brother of a whole-blood are merely binding upon the consciences of pious Hindus and do not possess the imperative force of laws [Wooma Daee v. Gokulananda(7)]. I feel no doubt that a similarly restricted interpretation should be adopted in the case of the text whereon the Appellant relies, and this view is plainly indicated by the Judicial Committee in Annapurni v. Forbes where this very text of Manu is quoted and its scope and purpose explained as follows:— “we must suppose that all take the spiritual benefits of male issue; but the law is clear that for the purpose of inheritance, the natural mothers and fathers respectively are preferred.” If the contention of the Appellant were to prevail, whenever a son is born of the womb of one of the wives of a person, all his wives would stand in the position of mothers to the boy and would be entitled to succeed to him equally by right of inheritance; for it would be obviously illogical to hold that the ladies become his mothers, but he does not become their son. Yet it was ruled by a Full Bench of this Court in Jotilal v. Durain Rower(8) that, according to the Mitakshara, in a divided family, a stepmother cannot succeed to the estate of her step-son; and this exposition of the law has been accepted as correct for over half a century.
Further, it is plain that the argument of the Appellant involves an Atideca upon an Atideca, that is, a fiction upon a fiction, or a remote analogy on a remote analogy; the adopted son would by a fiction be a real son of the adopter, and, then, by another fiction, a real son, not only of the adoptive mother, but of all the other wives of the adoptive father; a train of reasoning most repugnant to a Hindu jurist. We may also add that the contention of the Appellant is not supported by the decision in Manilal v. Bai Rewz(9), Mahadu v. Bayaji and Bai Kesser Bai v. Hansraj, where a co-widow was preferred to the husband's brother and husband's brother's son as heiress to the stridhan of a Hindu widow who had died without issue; nor is assistance derived from Bachha Jha v. Jugmon(12), where under the Mithila Law, the husband's brother's son was preferred to the sister's son. We have been pressed, however, with the opinion of Commentators on the Institutes of Yajnavalkya as also on the Mitakshara, but, in my opinion, they do not support the contention of the Appellant that in para. 19 of sec. XI of Chap. II of the Mitakshara the term “son” includes the son of a rival wife. I am not now concerned with the question, which may, perhaps, hereafter arise, whether the term “son” includes a son taken by the woman in adoption in conjunction with or under an authority conferred by her husband. The only question for determination now is, whether the expression includes the son of a rival wife. In my opinion, the answer must be in the negative. The terms used by Yajnavalkya and Vijnaneswara, namely, make it clear that the text refers to the case where the woman dies “without issue” or “leaves no progeny” in the ordinary acceptation of those phrases. This is made clearer by the phrase used in para. 12, that is “a woman who has given birth to child.” This is further emphasised in para. 19, where reference is made to the text of Manu (IX, 192) which speaks expressly of uterine brothers and uterine sisters. It is inconceivable that Vijnaneswara should have used the expressions he did in paras. 9, 12 and 19 or referred to the text of Manu (IX, 182), if he had intended to import into the term “son” a secondary sense of step-son. Why should we impute to Vijnaneswara a manifest violation of an elementary rule of interpretation, namely, that he uses the same word in two different senses in the course of the same discussion, (Dattaka Mimansa, II, 35; Vyavahara Mayukha, Ch. I, sec. 1, 11-15; Dayabhaga, Cb. Ill, sec. II, pl. 30), which furnish illustrations of the Arthaikatva Axiom, “to a word or sentence occurring at one and the same place, a double meaning should not be attached” for let it not be overlooked that although in the translation by Colebrooke the text of the Mitakshara is divided into distinct paragraphs, in the original the passage appears as one continuous and unbroken discussion. Reference has been made to Subodhini (Setlur's Ed., pp. 848-853), the Balambhatti (Setlur's Ed., p. 858, 1. 9) (both Commentaries on the Mitakshara), the Viromitradaya (Ch. V, pt. II, sec. 14.), Apararka (Anandasrara Ed., Vol. II, 754), Vivada Ratnakar (Ch. X) and Kamala-kara [Baroda Ed., p. 462; Dwarkanath v. Sarat Chandra]. These do not support the contention that the term son in para. 19 includes the son of a rival wife, though some of them, for instance, the Viramitrodaya, apparently treats the son of a rival wife as a preferential heir to the husband. I am not now concerned with the question, whether the son of a rival wife can be squeezed in between the son and the husband and thus allowed to break through the compact line of heirs enumerated in the Mitakshara in paras. 20-24, but I may state that I do not at present see any plausible answer to, much less any valid criticism on, the view expounded by Chandavarkar, J., in Bhimacharyya v. Ramcharyya. That view is supported by a number of commentators, amongst others by Apararka (Vol. II, p. 754) and Kamalakar (p. 462). I hold accordingly that neither the Appellant nor the Respondent is qualified as “son” to take by inheritance the estate of their step-mother who died without issue and left no progeny. It follows necessarily that her estate upon her death, has devolved upon the sapindas of her husband in accordance with para. 25 read with paras. 9 and 11 of Ch. II, sec. XI of the Mitakshara. The Appellant and the Respondent are incontestably sapindas of their father in the same degree, and consequently they have jointly inherited the estate of their step-mother.
The question then arises for consideration, whether the Plaintiff and the Defendant are entitled to the estate in equal halves or whether the Respondent as the adopted son of his father is in a position of relative disadvantage. The Appellant affirms the latter alternative and relies upon the well-known text of Vasistha:— “If after he has been adopted, a legitimate son be born, then the Dattaka shall obtain a fourth share.” This is of no assistance to the Appellant; for the context shows that the text of Vasistha refers only to the estate of the adoptive father (Vasistha XV, 1-9, S.B.E Vol. XIV, p. 76). I am not unmindful that the principle has been extended to other cases (Dattaka Mimansa X, 1; Dattaka Chandrika II, 11, V. 17); but there is no text directly applicable to the contingency before us. On the other hand, we have the text of Vriddha Gautama cited in the Dattaka Mimansa (V. 43) which says that an adopted son endowed with excellent qualities and an after-born son are equal sharers. Of similar significance is the qualification formulated by Vasistha himself (XV, 10): “provided he be not engaged in rites procuring prosperity,” which Krishna Pandit interprets as indicating that in this case the estate is to be divided equally between the legitimate son and the adopted son; the interpretation adopted by the author of the Dattaka Chandrika (V, 17-18) is obviously forced and, if one may say so without impropriety, erroneous. There is thus plain indication that even in archaic times, the rule was deemed harsh and an endeavour was made to restrict its operation. Consequently we should not extend its application to cases not only not comprised strictly within its letter, bu? undoubtedly beyond its true spirit; in this connection we may bear in mind that Hindu jurists, quite as much as English jurists, [Ebbs v. Boulnois(14)] recognise the well-known canon of interpretation that a special text or statute forming an exception to a general text or statute should be construed strictly and applied only to the cases falling clearly within it; the Mitakshara itself recognises the principle that where an exception exists to a general rule, the exception should be confined within the strictest limits so as not to encroach unduly upon the general rule [Gangu v. Chandra(15) and Anandi v. Hari Suba, Dattaka Chandrika sec. V, 27. Mitakshara on Prayaschitta, Ed. Moghe, p. 292; That the rule is of universal application is clear from the decision in Surjokant v. Mahesh Chunder, where an adopted son of one daughter and the legitimate son of another daughter were held to be equal sharers in the estate of their maternal grandfather. The only case where the rule has been applied, though it is not covered expressly by the text by Vashista, is Raghabanund v. Sadhu Churn(18), where partition was sought amongst the members of a joint Mitakshara family composed of the adopted son of one brother and the legitimate sons of two other brothers. The correctness of this decision which is in conflict with Taramohan v. Kripanmyee(19) and Dinanath v. Gopalchurn(20), was doubted in Baramanand v. Krishna Charon(21), Birbhadra v. Kalpataru and Raja v. Subbaraya(23). It was, however, recently followed by the Bombay High Court in Bachoo Harkisendas v. Nagindas(24). On appeal to the Privy Council, the decision of the Bombay High Court has been reversed and the view adopted by this Court in Raghab v. Sadhu definitely overruled by a judgment which has been received in this country since the present judgment was composed. [Nagindas v. Bachoo decided by the Judicial Committee on the 26th November 1915]. The position, then, is that there is neither authority nor principle which can be successfully invoked by the Appellant in support of his contention that the estate of his step-mother should be unequally divided as between himself (the real son of his father) and the Respondent (the adopted son of his father). We are consequently thrown back upon the fundamental position recognised in a long series of decisions that the adopted son becomes for all purposes the son of the father by adoption and occupies the same position in the family of the adopter as a natural born son, except in a few instances which are accurately defined in the Dattaka. Chandrika and the Dattaka Mimansa. Sambhuchander v. Narayani(25), Padma Coomari v. Court of Wards, Kalikamal v. Uma Sankar, Umasankar v. Kalikamal, Jaykishore v. Panchoo Babu, Anandi v. Hari Suba, Jugernath v. Makhan, Tincowri v. Dinanath, Radliaprosad v. Ranimani, Narasamnal v. Balarama(31) and Annapurni v. Collector. The only point for consideration then is whether there is any text applicable to the present case which reduces the share of the adopted son. I have not been able to trace any text expressly applicable nor can I find any which even by implication supports the contention of the Appellant. I am not unmindful that in Ch. II, sec. XI, para. 9, of the Mitakshara the property goes to the kinsmen of the woman, namely her husband and the rest, and in para. 11, on the failure of the husband, it goes to his sapindas. In my opinion, this does not show that the property descends as if it belonged to the husband; the only effect of the two paragraphs is to determine the heir to the woman by application of the test of sapindaship with her husband. It follows accordingly that the Respondent takes the same share in the estate of her step-mother as he would have done if he had been a real and not the adopted son of his father. I hold finally that Mr. Justice Chi by correctly decided both the points in the case.
As regards the question of estoppel, there is nothing in the arbitration proceedings which debars the Respondent from contesting the claim of the Appellant, and the point which indeed was not seriously pressed does not require elaborate investigation.
I agree with the Chief Justice and Mr. Justice Woodroffe in the directions they propose to give with regard to the costs and the further trial of the suit.
Babu Satish Ch. Sen, Attorney, for the Appellant.
Mr. P.N Sen, Attorney, for the Respondent.
J.M.L
Case remanded.