The Judgment of the Full Bench was delivered by
Lokur, J.:—This is an appeal against the decree of the Assistant Judge of Dharwar dismissing the appellants' suit for the recovery of certain properties from the two defendants. The properties belonged to one Bando Balkrishna. He died without issue in 1911, and his widow Ambabai inherited them. She took defendant No. 1 in adoption in 1932, and died on January 15, 1934. Defendant No. 2 has purchased one of these properties from defendant No. 1. The plaintiffs challenged both the factum and the validity of defendant No. 1's adoption and claimed to have inherited the properties after Ambabai's death as the nearest reversioners. Defendant No. 1's natural father Krishna had himself gone in adoption into another family after defendant No. 1 was born to him, and it was contended by the plaintiffs that he could not validly give defendant No. 1 in adoption to Ambabai. At the hearing of the suit both the parties gave up all their other contentions, and the trial was confined to the only issue whether the adoption of defendant No. 1 was valid, as he had been given in adoption by his genetive father after he himself (the genetive father) had gone in adoption. On this issue the learned Assistant Judge recorded a finding in the affirmative and dismissed the suit. At first sight this finding appears to be opposed to the commonly accepted notion that on adoption the adoptee becomes civilly dead in his natural family and is reborn in the family of his adoptive parents. The expressions “civil death” in one family and “rebirth” in another are figuratively used to express laconically the results of an adoption, and they cannot be taken in their literal sense. After giving our best consideration to the question, we are satisfied that the finding of the learned Assistant Judge is correct.
The question raised is a novel one, and no direct authority can be found in the ancient texts on Hindu law, since they prohibited the adoption of a married man. Even now such an adoption is prohibited in all the Provinces except Bombay, and this question cannot arise there. It is only in this Presidency that a married man can be validly adopted, even after he has children, and his children, both male and female, born before his adoption, remain in his natural family, and do not go with him to his adoptive family [Kalgavda Tavanappa v. Somappa Tamangavda and Manikbai v. Gokuldas.] The question then arises whether by his adoption he ceases to be the natural father of such children, and loses his right to give in adoption one of his sons whom he has thus left behind in his natural family.
The primary right to give in adoption is that of the father, though the mother can exercise that right with the father's consent. But if the father be dead or incapable of giving his assent, the mother can give her son in adoption. In Dattaka Mimansa, section IV, pl. 14, Nanda Pandita quotes Vasistha and says—
“Man, produced from virile seed and uterine blood, proceeds from his father and mother, as an effect from its cause, [and] therefore, his father and mother have power, to give, to sell, or to abandon their sons.” (Stokes' Hindu Law Books, p. 574).
It follows from this that only the natural father and the natural mother have the right to give in adoption. A step-mother cannot give her stepson in adoption, nor can either of the adoptive parents give their adopted son in adoption (Sarkar's Hindu Law of Adoption, 2nd edn., p. 281). If the adopted person has a son born before his adoption, he is nevertheless his genetive father, and he alone can say that “his own self is born in him,” . This status can never be lost even if he leaves the family of his birth and transfers himself to the family of his adoption. It is not surprising that the ancient law givers are silent on this point since such a contingency could not have been contemplated by them by reason of the prohibition of the adoption of a married man. Hence the solution to the question must be deduced from the effects of an adoption as given in the ancient texts, as interpreted by the modern decisions.
All the discussion on the subject turns round the oft-quoted text of Manu contained in Manu Smriti, Chapter IX, verse 142:—
The first line lays down the effect of an adoption, and the second line follows from it as a corollary. The verse is translated as follows in Volume XXV of the Sacred Books of the East, at p. 353:—
“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 other words the result of an adoption is that the adopted boy gives up the gotra and riktha of his genetive father. The necessary consequence of this is that since the pinda is a concomitant of gotra and riktha, the genetive father cannot get the svadha from him.
This text has been commented upon by several commentators and is discussed in a number of decisions of our High Court. In this verse Manu merely declares what is lost on adoption, namely gotra and riktha, but nowhere lays down what is gained. To remove the lacuna, Nanda Pandita relies upon the following text of Brihan-Manu:—
This is not very happily translated in Stokes' Hindu Law Books (Sec. VI, pl. 9, p. 600), and may be rendered as follows:—
“Of the adopted son, purchased son and the rest, the relationship of consanguinity (‘Sapindata’) continues with the natural father up to the fifth and the seventh degree; the Gotra (family name) is, however, of the adopter.”
The reason for the continuation of the sapindata is thus explained in the next placitum:—
“Of the son adopted, purchased and the rest, the relationship of consanguinity with their natural father does certainly subsist: it is not extinguished by gift (adoption) etc., its connection being with portions of the body, so long as the body lasts, it is difficult to be extinguished. Thereby it has been indicated that consanguinity is due to connection with portions of the body, not due to connection with the cake, since connection with the cake is known to be extinguished in the passage, ‘of him who gives, the obsequies fail’.” (Mr. Gajendragadkar's translation of Dattaka Mimansa, p. 84).
It further goes on to say that this “Sapindata” extends up to the fifth and the seventh degree.
Dattaka Chandrika also says the same thing. Thus what is lost on adoption is the gotra and riktha of the natural father, but not the sapindata. In Vivada Ratnakara (p. 568), the word gotra is interpreted as “relationship to a Rishi , indicated by such names as Kashyapa and the like,” (vide Ganganath Jha's “Hindu Law in its Sources”, Volume II, p. 275).
According to the accepted canons of interpretation, when any rule or statute takes away some rights or privileges of a man, it should be strictly construed, and should not be extended to include those rights and privileges which are not expressly mentioned or necessarily implied. This canon was applied by Chandavarkar, J. in interpreting this very text of Manu (Chap. IX, v. 142) by relying upon the rule of the Hindu logicians (Naiyayikas) that is, where in a text certain qualities are predicated of a person, they apply to him only and the rule in the text should not be extended to others. He, therefore, held (p. 683): “Manu's text …. must be confined in its application to the person of whom it speaks, that is the man given in adoption, and not extended to his son born before the adoption.” Hence the latter was held not to lose his gotra and riktha in the family of his birth [Kalgavda Tavanappa v. Somappa Tamangavda]. On the same principle, when Manu's text refers to the loss of gotra and riktha of his natural father, the adopted son should not be held to lose anything more. Nilakantha, the author of Vyavahara Mayukha, perhaps gives the most extended meaning to the terms gotra, riktha, pinda and svadha, and says that by these terms is meant “all the acts connected with the ‘Pinda’ or funeral oblation due to the natural father, and their extinction is pronounced” (Chapter IV, section V, 22). Yet in dealing with the transfer of the son from his natural family to the adoptive family, he says:—
“But it is impossible for the adopter to make a son in the manner in which a son would be naturally born. Therefore by the term or son, the whole of the duties of a son being had in view, the accomplishment of the invisible virtue whereby those duties will be discharged is to be accepted. In this manner (alone) sonship in the acceptor's family is capable of being produced.” (Mandlik's translation, p. 559, lines 2 to 6).
This clearly negatives the theory of the adopted son's civil death in his natural family and rebirth in the adoptive family. That theory is only a figure of speech, and as observed by Patkar, J. in Bai Kesharba v. Shivsangji (p. 641) it “is not warranted on any view of the texts or the decisions on the point.” On p. 645 he says:
“… 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.”
In Raghuraj Chandra v. Subhadra Kunwar their Lordships of the Privy Council after stating at p. 148 that though adoption is spoken of as “new birth” in many cases, a term sanctioned by the theory of Hindu law, yet “As has been more than once observed, 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’.” The inapplicability of the theory can be illustrated by concrete instances:—
(a) The tie of blood between the adopted son and the members of his natural family is not severed. He cannot marry in his natural family within the prohibited degrees, nor can he adopt from his natural family a boy whom he could not have adopted if he had remained in that family [Moottia Moodelly v. Uppon Vencata Charry].
(b) If the adopted son is reborn in the adoptive family, all the Samskaras, performed in his natural family before adoption, would have to be gone through again. But that is held to be not necessary by all the commentators.
(c) The adoptive father cannot give his adopted son in adoption (Sarkar's Hindu Law of Adoption, pages 281-282).
(d) If a son is born to the adoptive father after adoption, the adopted son does not share equally with him.
(e) On his adoption, the adopted son does not lose the share he has already obtained on partition from his natural father and brother in his family of birth (Mahableshwar Narayam v. Subramanya Shivram). If, by the adoption, he becomes civilly dead, that property ought to go to his legal heirs in his natural family.
These instances show that an adopted son is not civilly dead in his natural family nor reborn in his adoptive family.
It is no doubt true that by giving away his son in adoption the adopted father indirectly meddles with the riktha or property of his natural family, since the effect of that adoption will be to extinguish the son's interest in that property. But thereby the father himself gains no interest in the property. All that Manu's text says is that he should not take for himself the gotra and riktha of his natural family, and does not prohibit him from doing any act which may affect the property of his natural family. Thus, for instance, if he has a brother in his natural family, he is not prohibited from giving his son born after his own adoption, in adoption to that brother, although thereby the different interests in the property of his natural family are affected.
In the course of his very able and lucid argument, Mr. Gharpare for the appellants pointed out that it has been held that a remarried widow cannot give in adoption her son born of her former husband, since she has left that husband's family by her remarriage [Fakirappa v. Savitrewa]. On the same analogy he contends that a father who has gone to another family by adoption cannot give his preborn son in adoption. That decision was based on the provisions of ss. 2 and 3 of the Hindu Widows Remarriage Act (XV of 1856) and not on the interpretation of any ancient text, since, as pointed out by Shah, J., the Smriti writers did not permit any remarriage of a Hindu widow, and did not provide for her right to give in adoption her son born before her remarriage. Hence this analogy does not serve any useful purpose. On the other hand it is held that a convert to a different faith can give in adoption his son born before his conversion: Shamsing v. Santabai, Kusum Kumari Roy v. Satya Ranjan Das and Neelawa v. Gurshiddappa. These cases also do not help us much. In the first case the decision was based on the provisions of Act XXI of 1850. In the second, it was held that the father who had become a Brahmo could revert to Hinduism by performing expiatory rites. The third case was of a temporary excommunication by the community.
In the absence of any express text or judicial decision depriving an adopted son of his right to give away in adoption his son born before his adoption, we do not think that any useful purpose will be served by imposing such a restriction upon him. The modern trend of decisions is to take a more liberal view and to interpret the texts from a practical point of view as far as possible. This is particularly noticeable in the decisions of this Court on several questions of adoption, such as the adoption of an only son, the adoption of a married boy, the adoption of a boy whose mother the adopting father could not have legally married, and the adoption by a widow without the express consent of her husband. We do not see why a similar liberal view should not be taken in this case, having regard to the interests of the boy to be given in adoption. With his father actually living, it would be a hardship on the boy to treat him as an orphan, merely because the father has gone in adoption. Usually when the father is adopted, his preborn sons are still minors, and in practice they go with their father to live with him, though legally they are held to have remained in the natural family of their father. Though the father has gone in adoption, the ties of affinity and love for his preborn sons cannot be severed, and he is the proper man to look after their education and welfare. If a guardian is to be appointed for them, he will naturally be consulted. Having their interest at heart, he is the best person to decide whether one of them should be given in adoption and what is conducive to their benefit. By giving one of his sons in adoption he himself gains no benefit, and he may be safely trusted to exercise his discretion rightly for the good of his son, though born before his own adoption.
It may be that in ancient and primitive society the son was regarded as hardly better than his father's slave, and the prominent idea involved in an adoption was the transfer of dominion or patria potestas to the person adopting. But when the times changed and the status of the son was raised, the father's power to give in adoption came to be founded on a different conception. The text of Vasishtha quoted in Dattaka Mimansa (sec. V, pl. 31), which is said to afford the foundation of the Hindu law of adoption, and which I have already referred to, recognizes the power of the father and the mother to “give or sell or abandon” their son as he is “produced from their virile seed and uterine blood.” This paternity of the father cannot be shaken off even though he may leave the family, as, according to the Hindu Shastras “By no means can you make your father cease to be,” (Jaimini, Bibliotheca Indica Series, Volume I, p. 742). The same thing is expressed by Chandavarkar, J. in Kalgavda Tavanappa v. Somappa Tamangavda as follows (p. 690):—
“The more fact that the father has gone into another family by adoption and eased to be of his son's gotra or family cannot unmake what he naturally is—the son's father.”
Although, the question now in issue did not directly arise in that case, Chandavarkar J. expressed in unmistakable terms his opinion in favour of the right of the father who has gone in adoption to give away his preborn son in adoption. On p. 682 he says:—
“The son, then, 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.
By whom such a son can be given in adoption is made clear on p. 687, where he says:—
“The obligation and the line represented by the grandson must continue unless it is extinguished altogether in the mode or modes prescribed by the Shastras, that is, by death or excommunication or by the giving of the grandson himself in adoption by his father.”
Though obiter, these are not stray remarks. Chandavarkar, J. was considering the position of the son after his father went in adoption, and has discussed at length his relations with his father and his grandfather. His remarks must, therefore, be taken to be well-considered and deliberate. Coming as they do from such an eminent Hindu jurist, they deserve every respect and should not be brushed aside unless they are clearly repugnant to the Shastras or any of the principles of Hindu law. We entirely concur in the view expressed by him and hold that defendant No. 1 was validly given in adoption to Ambabai by his natural father, although the latter had already gone into another family by adoption. The appellants are, therefore, not entitled to succeed to Bando's estate after the death of his widow Ambabai, and their suit is rightly thrown out.
The appeal is, therefore, dismissed with costs.
Appeal dismissed.
J.G.R