Citation Codes

Equivalent Citations

citation codes

Case Number

Letters Patent Appeal No. 129 of 1925

Advocates

A. Krishnaswami Ayyar for respondents.
C.V Anantakrishna Ayyar for appellant.

Judges

Phillips
Madhavan Nayar, JJ.

Acts

section 1, verse 22, and section 6,

See more information ...

Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The appeal concerns the legal consequence of an adoption made by a man whose only wife had died before the adoption: specifically, whether the adopted son thereby becomes the son (and legal heir) of that deceased wife. The question was not apparently directly decided previously and so the judges examined relevant texts, commentaries and authorities.

The matter reached the court as a Letters Patent Appeal (explicitly identified in the opinion). The judgment under appeal was given by a learned Judge (Devadoss, J. is referred to in the opinion) who held that the adopted son could not be treated as heir to a wife who was dead at the time of adoption. The present appeal challenges that view. Both Phillips, J. and Madhavan Nayar, J. delivered reasons and allowed the appeal, resulting in the dismissal of the plaintiff’s (respondent's) suit with costs throughout.

Legal Issues Presented

Whether an adopted son of a man whose only wife had died before the adoption can be regarded as the son of that deceased wife, such that he is her legal heir.
Whether the adoptive mother must have physically or actively "received" the child (i.e., participate in the adoption ceremony) for the child to be regarded as her son, or whether the wife becomes adoptive mother by virtue of being the adopter's wife (even if deceased at the time of adoption).

Arguments of the Parties

Appellant's Arguments (as found in the opinion)

Adoption is a legal fiction effecting a complete severance from the natural family and substitution into the adopter's family; under that fiction the adopted child becomes the legitimate son of the adoptive father and, by necessary fiction, of his wife as well.
The relevant passages of Dattaka Mimamsa (including section 1 verse 22 and section 6 verse 50) support the proposition that the wife becomes adoptive mother by virtue of the husband's act, not by her active physical receipt of the child.
Literal reliance on the word "Prathigrahiyamatha" (rendered as "receiving mother") is misplaced in context; the wife becomes adoptive mother because she is the wife of the adopter and adoption is a fiction that need not be tied to a physical act of receiving, particularly where that wife is deceased.
Commentary (Sarkar Sastri) is inconsistent on the point; other authoritative statements (including an article by Sir Bhashyam Ayyangar, J.) support the wider interpretation that permits treating a deceased wife as adoptive mother.
A rigid rule requiring physical receipt would produce the anomaly of an adopted child without a mother; the law of adoption should be read to avoid that anomaly where possible, and the fiction can accommodate a deceased wife as adoptive mother.

Respondent's Arguments (as found in the opinion)

The adoptive mother must actively participate in the adoption by "receiving" the child; the literal meaning of "Prathigrahiyamatha" requires physical acceptance by the wife to render her the adoptive mother.
Sarkar Sastri's commentary is relied upon to support the contention that, unless the wife actually receives the child, she does not become the adoptive mother; hence a wife dead before adoption cannot qualify.
Where there is a "receiving mother," only her relations constitute the maternal relations of the adopted son; this supports the narrower view that a deceased wife (who could not receive) cannot be the adoptive mother in the full legal sense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Uma Sunker Moitro v. Kali Komul Mozumdar	States the theory of adoption: complete severance from the birth family and substitution into the adopter's family; the adopted child is treated as if born in the adoptive family.	Quoted and relied upon to establish the essential fiction of adoption (complete substitution) that underpins the view that the adoptive family includes both father and wife as parents of the adopted child.
Nagindas Bhagwandas v. Bachoo Hurkissondas	Privy Council approval of the adoption theory described above.	Used to confirm that the "complete severance and substitution" theory of adoption is authoritative and accepted by higher judicial authority.
Narinsha (Narasimha) v. Parthasarathy (Judicial Committee)	Holds that only one wife can receive the child in adoption so as to be its adoptive mother; a child cannot have more than one mother.	Quoted to demonstrate that where there are multiple wives the law permits designating one receiving mother; the court used the principle to show the general preference for finding one mother but did not accept that this requires physical receipt in all cases.
Annapurni Nachiar v. Collector of Tinnevelly	Decision where a junior wife who joined the father in making the adoption was held to be the mother in preference to a senior co-wife.	Applied to show that participation may be a factor where there are competing wives, but the court held this authority does not mean that physical receipt is necessary to validate adoption or to make the wife adoptive mother when there is no live wife who received the child.
Annapurni Nachiar v. Forbes (Privy Council)	Privy Council affirmed the High Court's approach that the husband may unite one wife with himself in adopting to prevent disputes among multiple wives.	Relied upon to show the reasonableness of designating a receiving mother among multiple wives; the court distinguished that situation from the single-wife-or-deceased-wife situation and did not accept that it compels the respondent's literalist position.
Ganga Sahai v. Lekhraj Singh	Adoption described as "second birth"; adoption proceeds upon the fiction that the adopted son is born again into the adoptive family.	Quoted to reinforce the nature of adoption as a legal fiction and to justify treating the adopted child as occupying the same position as a legitimate son in the adopter's family, including maternal relations.
Nagin Das Bhagwan Das v. Bachoo Hurkisson Das	Referenced as quoting with approval the Uma Sunker Moitro principle (i.e., adoption fiction and substitution into adoptive family).	Used to show subsequent approval of the Uma Sunker Moitro formulation; the court treated this as supportive of construing the adoptive mother's relationship broadly (including where the wife is deceased).

Court's Reasoning and Analysis

The court's analysis proceeds from the foundational premise that adoption in Hindu law is a legal fiction which effects a "complete severance" of the adopted child from the birth family and a "complete substitution" into the adopter's family. Both Phillips, J. and Madhavan Nayar, J. invoke this principle (citing Uma Sunker Moitro and subsequently approved authorities).

Key analytical steps and points relied on by the court:

The court first examines authoritative textual sources (notably Dattaka Mimamsa, section 1 verse 22 and section 6 verse 50) which, as translated and discussed in the opinion, state that by the husband's act of adoption the affiliation of the adopted child as son of the wife is complete, and that the forefathers of the adoptive mother are to be treated as maternal relations of the adopted son.
The court addresses the respondent's reliance on the literal meaning of "Prathigrahiyamatha" (rendered "receiving mother") and on certain passages of Sarkar Sastri's commentary that require physical acceptance by the wife. The judges find this literalist reading unpersuasive because:
- Sarkar Sastri's commentary is internally inconsistent (different passages suggest different positions).
- Adoption can be and often is effected by the husband without the wife's consent or presence; therefore, to make the mother's physical receipt an essential element would often result in an adopted child having no mother under the law.
- The context of the Dattaka Mimamsa passages does not require that "Prathigrahiyamatha" be given a strict literal sense; the text and the doctrine of adoption as a fiction support treating the wife as adoptive mother by virtue of the husband's act.
The court distinguishes cases about multiple wives (such as Annapurni Nachiar) where the law accepts designating a "receiving mother" among co-wives to prevent disputes: such authorities do not compel the conclusion that a receiving mother's physical participation is necessary to make adoption effective when there is a single (or deceased) wife.
Both judges reason that because the fiction of adoption aims to assimilate adoption to "nature" (for example, adoption as "second birth"), the law should avoid creating the anomaly of an adopted person without a mother if it can be reasonably avoided. Where feasible, that fiction can be applied to treat the deceased wife of the adopter as the adoptive mother.
Applying the above principles, the court concludes that the deceased wife of the adoptive father can be treated, within the fiction of adoption, as the adoptive mother and that an adopted son can therefore inherit through the maternal line of a wife who was dead at the time of adoption.

Holding and Implications

Holding: The court's final decision was to allow the appeal. The judges held that the deceased wife of the adoptive father can be regarded, by virtue of the fiction of adoption, as the adoptive mother of a son adopted after her death, and that the adopted son therefore becomes her heir. The court ordered that the plaintiff's (respondent's) suit be dismissed with costs throughout.

DISPOSITION: The Letters Patent Appeal was allowed and the plaintiff's suit dismissed with costs throughout.

Implications: As articulated in the opinion, the direct consequence is that, for the parties in this litigation, an adopted son may inherit to the relations of the adoptive father's wife even when that wife died before the adoption. The court's reasoning rests on the established doctrine of adoption as a legal fiction and on textual passages from Dattaka Mimamsa interpreted in that light. The opinion emphasizes that precedents about designating a receiving mother among multiple wives do not mandate a strict rule of physical receipt in all contexts; the ruling avoids the anomalous result of an adopted person without a mother where the fiction can reasonably be applied.

Note: This summary is confined strictly to the content and reasoning contained in the provided opinion. No information beyond that text has been added or inferred.

Show full summary ...

Sundaramma v. Venkatasubba Ayyar

Phillips, J.:— The question in this appeal is whether the adopted son of a man whose only wife had died before the adoption becomes the son of that wife so as to be her legal heir. This question does not seem to have been directly decided in any case and therefore it will be necessary to see how far the authorities support the proposition. In the first place it is necessary to consider the principles which govern adoption under the Hindu Law. In Uma Sunker Moitro v. Kali Komul Mozumdar(1), Romesh Chander Mitter, J., observes:

“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 maternal line, and his complete substitution into the adopter's family as if he were born in it.”

This theory has been upheld by the Privy Council in Nagindas Bhagwandas v. Bachoo Hurkissondas(2). The theory then appears to be that the adopted boy by a legal fiction becomes the natural son of the adoptive father and presumably also of his wife. The question here is not complicated by the existence of two or more wives. In Narasimha v. Parthasarathy their Lordships of the Judicial Committee observe

“Only one wife can receive the child in adoption so as to step into the position of being its adoptive mother”

and again

“to hold that a child could bear such a relationship to more than one mother would be entirely contrary to settled law.”

This conclusion appears to be based on the theory of adoption, namely, that the adopted son becomes the natural son of the father, and the only way in which he can be deemed to be the natural and legitimate son of his father is by a fiction that he is the son of that father's wife also. A Hindu son has to offer oblations not only to his father's ancestors but also to his mother's ancestors. When therefore, he is adopted into a new family, he becomes the son of that family and presumably he would offer oblations not only to his adoptive father's ancestors but to his father's wife's ancestors as well. It would be straining the legal fiction of adoption too far to hold that the boy need have no mother at all although this may possibly be necessary in the case of an adoption by a bachelor, but that is an exceptional case with which we are not concerned now. In a family in which there were two wives it was held that the wife who joined with the father in making the adoption, although the junior wife, was the mother of the boy in preference to her senior co-wife Annapurni Nachiar v. Collector of Tinnevelly. This was upheld by the Privy Council in Annapurni Nachiar v. Forbes(3). Wherever possible, therefore, a mother should be found for the boy and the fact that such a mother died before the adoption can be no obstacle in view of the fictitious character of the whole principle of adoption.

It is contended for the respondent that even when the adoptive father's wife is alive she does not become the adoptive mother unless she actively participates in the adoption by receiving the adopted boy. This contention is apparently based on the literal meaning of the word “Prathigrahiya” which is ordinarily translated as adoptive. Its literal meaning is “receiving” and it is contended that unless the boy is actually received by the woman she does not become his adoptive mother. It is well settled that a man can adopt without the consent of his wife and even against her consent and in either case the adoption is valid. If the adoption is valid and the principle is recognized that the adopted boy ought in theory to have a mother it is difficult to accept the proposition that he is not to have any mother at all unless she actually receives him in adoption. The argument that the wife becomes the adoptive mother is based on the text of Nanda Pandita in Dattaka Mimamsa, part I, verse 22

“In consequence of the superiority of the husband by his mere act of adoption, the affiliation of the adopted, as son of the wife, is complete in the same manner as her property in any other thing accepted by the husband”.

In this text there is no qualification of the words “son of the wife” such as is sought to be put upon it by the respondent. He contends that it only means son in a tertiary sense, as laid down by Sarkar Sastri in his commentary on adoption (p. 227). When pressed for an interpretation of this tertiary sense, the learned vakil had to adopt the conclusion in Sarkar Sastri's book, namely, that he was not really a son for any purpose. This seems to be a quite unnecessary deduction, for it destroys the apparent meaning of the text. If he is not really the son of the wife in any sense, why should the text declare that his affiliation as such is complete. No doubt Sarkar Sastri in his commentary supports the proposition put forward for the respondent, but there are very many contradictory statements to be found in his commentary. For instance, his observations at page 200 are altogether contradicted by those at page 419 E. Apart therefore from this commentary, there appears to be no authority for the proposition that the wife does not become the adoptive mother unless she actually received the boy. It may also be observed that it is only in very rare cases that the wife receives the boy as well as the father and consequently in most cases, if this contention were to be upheld the result would be that an adopted son who was adopted by the father would have no mother at all, for admittedly he is no longer considered to be the son of his natural mother and consequently he would be in the anomalous position of a man who has no mother at all. If this anomalous position of a man without a mother can be avoided, I think it should be as being opposed to law of nature to which the theory of adoption is assimilated. The text of Dattaka Mimamsa is undoubtedly an authority to the contrary. I may observe that the late Sir Bhashyam Ayyangar, J., accepted this proposition in an article in 9 Madras Law Journal, 231, and there appears to be no reason why it should not be adopted. If, therefore, the wife becomes the adoptive mother whether she takes part in the ceremony or not, then there can be little difficulty in pressing the fiction a little further so as to include the deceased wife of the adoptive father. The whole theory being a fiction, the impossibility of a woman becoming the mother after her death must be explained away by the fictitious nature of adoption. As her consent is not necessary, the fact that the consent cannot be obtained after her death is immaterial. I would, therefore, hold that the deceased wife of the adoptive father can become the adoptive mother and the adopted son becomes her heir.

The learned Judge from whose decision this appeal is preferred has adopted the arguments of Sarkar Sastri in favour of his view, but as I have observed above, these arguments seem to be based on incorrect principles and an incorrect reading of the text. The appeal must, therefore, be allowed and the plaintiff's (respondent's) suit dismissed with costs throughout.

Madhavan Nayar, J.:— The question for decision is whether an adopted son can inherit to the relations of the wife of his adoptive father when that wife was dead at the time of his adoption. Devadoss, J., answered the question in the negative basing his judgment on the ground that “adoption being after the death (of his wife) it cannot be said by any fiction that she took part in the adoption.” According to this view an adopted son can be heir only to the wife of the adoptive father who joins in the ceremony of adoption and who is termed “the receiving mother.” The correctness of this view is challenged in this Letters Patent Appeal.

There is no direct authority on the point, but two texts in Dattaka Mimamsa have a bearing on the question. These are Dattaka Mimamsa, section 1, verse 22, and section 6, verse 50, and are thus translated by Stokes.

“In consequence of the superiority of the husband, by his mere act of adoption, the affiliation of the adopted, as son of the wife, is complete in the same manner as her property in any other thing accepted by the husband.

“The forefathers of the adoptive mother only are also the maternal grandsires of sons given, and the rest for the rule regarding the paternal, is equally applicable to the maternal grandsires (of adoptive sons).”

Respondent relies strongly on the latter of the above-mentioned texts in support of his contention. This text shows that the relations of the adoptive mother only are the maternal relations of the adopted son. It is pointed out that the Sanskrit word “Prathigrahiyamatha” corresponding to the term “adoptive mother” means “mother who accepts in adoption” and, therefore, only the relations of a “receiving mother” are the maternal relations of the adopted son. It is difficult to accede to the argument that effect should be given to the literal meaning of the word “Prathigrahiyamatha” and that it should be understood in the sense of physical acceptance by the mother; for it is well known that the wife of the adopter is regarded as the adoptive mother even if she is not present at the adoption. The wife becomes the adoptive mother, not because she receives the boy in adoption, but because she is the wife of the adopter—her husband—who takes the boy in adoption. The context in which the passage occurs does not seem to require that the word should receive its primary meaning. The author mentions that the ancestors of the adoptive father are the paternal ancestors of the adopted son and then points out in the same way that the “forefathers of the adoptive mother only are also the maternal grandsires of the sons given” as distinguished from the ancestors of the natural mother. To illustrate this position there is no need to emphasise “acceptance” by the adoptive mother as a necessary feature in the ceremony of adoption. Sarkar Sastri in his “Tagore Law Lectures on adoption” interprets the term “Prathigrahiyamatha” literally. He says at page 419 E

“But it should be observed that although the husband's son is deemed by courtesy to be the wife's son, yet acceptance by the wife is absolutely necessary to constitute the husband's adoptee her legal son.”

See also page 237. These passages support the contention of the respondent. But the same learned author at page 200, paragraph 4, of the same volume expresses the following contrary view relied on by the appellant:—

“When the adopter is a widower, it might be said that his deceased wife's ancestors will be the maternal ancestors of the adopted son.”

The opinion of Sarkar Sastri is, therefore, not very helpful in deciding this question.

In support of the theory that there should be a “receiving mother” to enable the husband to make a valid adoption, the learned Judge refers to Annapurni Nachiar v. Collector of Tinnevelly, but that was a case where a conflict arose between the two married wives of the holder of an impartible zamindari as regards the right to succeed to the impartible estate, the property of the infant adoptive son of their late husband. It was held that the junior wife having taken part in the adoption was entitled to preference over her co-wife who was not associated by the husband in the act of adoption. In the course of his judgment Mr. Justice Shephard points out that

“Where, however, there are several wives it is said that the husband is at liberty to designate the one who shall take the place of mother, and that by this means the anomaly of assigning several mothers to the adopted son may be avoided.”

As regards the association by the husband of one of the wives in the act of adoption, the Privy Council in affirming the decision of the High Court observed thus—

“It certainly is a reasonable law that the head of a family should be able to take action likely to prevent disputes between his widows relative to adoption and the consequences of it. To unite one wife with himself in adopting is one way; and it is satisfactory to find that besides the one direct judicial decision there is so much reason and opinion in its favour and so little against it”.

See Annapurni Nachiar v. Forbes. What has thus been said as regards the “acceptance” by one mother when there are several wives to the adopter does not lead to the conclusion that the “receiving mother” is necessary to validate the adoption by the husband. It is conceded that if the husband had only one wife the act of adoption inasmuch as it concerns him alone may be performed independently of her.

The first of the two texts referred to above does not in any way support the suggestion that the adoptive mother to have the same relation as the natural mother should be one who actually receives the boy in adoption. On the other hand, inference drawn from it strongly supports the appellant. It is undisputed that adoption can be made by the husband without the consent of his wife. It may be made even against her wishes; for association with the husband in the act of adoption is a religious formality which does not show any legal significance. The ceremonial of adoption utterly ignores the wife, who need not be present and to whom no part is assigned if she is present (Mayne's Hindu Law, page 229). When the adoption is made whether with or without her consent the wife becomes the adoptive mother of the child by the mere fact of adoption. Adoption is but a fiction in law. As observed by Mahamood, J., in Ganga Sahai v. Lekhraj Singh.

“Adoption is itself ‘second birth.’ proceeding upon the fiction of law that the adopted son is ‘born again’ into the adoptive family by the rites of initiation.”

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.

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. See Uma Sunker Moitro v. Kalikomul Mozumdar, quoted with approval in Nagin Das Bhagwan Das v. Bachoo Hurkisson Das. As his adoption puts the adopted son in the place of legitimate son as regards the rites of inheritance in the family of the adopter, he must be considered to be heir to any rights arising after the adoption from his father's wife's position in his adoptive family, though she was not alive at the time of the adoption. To give full effect to the fiction of adoption and to assimilate the fact to an imitation of nature the adopted boy should have a mother. I do not think it is impossible to conceive the deceased wife as the fictional mother of the adopted child. The theory of a “receiving mother” being discarded, I cannot find any difficulty in holding that the wife of the adoptive father though she was dead at the time of adoption can be considered as the adoptive mother.

It is true that when a bachelor adopts, the adopted boy can have no adoptive mother. Fiction cannot be made to assimilate to nature in that case. But there is no reason why we should extend that analogy to cases like the present when it is possible to give full effect to the fiction by ascribing the deceased wife of the husband as the adoptive mother of the child.

For these reasons, I hold that the Letters Patent Appeal should be allowed and the plaintiff's suit be dismissed with costs throughout.

K.R

Sundaramma v. Venkatasubba Ayyar

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as found in the opinion)

Respondent's Arguments (as found in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sundaramma v. Venkatasubba Ayyar

Comments