Bahoo Harkisondas vs Nagindas Bhagwandas

Basil Scott, Kt., C.J.—This is an appeal from a decision of Mr. Justice Macleod 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 Sobhagchand, and this suit is based upon the allegation that the property now in dispute is ances-tral property coming from Nagardas. Nagardas had two sons Harkissondas and Bhagwandas. Harkissondas died on the 14th of September 1900 leaving a widow Gangabai who was then pregnant. Bhagwandas died on the 17th of December 1900 leaving a widow Mankorebai, to whom he had given authority to adopt. On the 18th of December the defendant Bachoo was born to Harkissondas and on the 17th of 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 share 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 ILR (1878) Cal. 425. The parties were, as here, governed by the Mitakshara law and the Court basing its decision upon a passage in sec. v of the 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 criticised by Mr. Mayne who (in Section 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 an adopted son of the deceased owner of the estate. That result is ajrived 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 ILR (1878) Cal. 425 of the passage in question and according to astranslation 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 KasMraj Bova ILR (1889) 14 Bom. 249 . 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 stirpes irrespective of the quality or quantity of the members belonging to each stirps, and therefore, the first division must and can only be half and half as if Bhag-wandas 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 ILR (1878) Cal. 425 and is inconsistent with the law enunciated in Debi Par shad v. Thakur Dial ILR (1875) All. 105 after a careful examinations, of the Mitakshara. The opinions expressed in those cases are in accord with the fifth verse of Nilkanth in Section I of the Mayukha where he says: " Now the pre-existing undefined ownership of more than one brother etc. is defined by partition."

That portion of theMitakshara, 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 rela. tion 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 I, therefore, being concerned with inheritance not liable to obstruction deals successively with the rights on partition of the inheritance of different classes of sons, Section 2 of that chapter deals with the case of a partition made by the father in his life-time, in which event he is entitled to give the eldest the best share, the other sons being equal sharers. That class of partition is now obsolete. (It is moreover in Section V, v. 7, limited by Vijnaneshwara to the father''s self-acquired property.)

Section V 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." Vijnaneshwara in commenting upon the text says : "Although the ownership by birth of the grandsons in the wealth of the grand-father is without distinction from that of sons, yet the determination of their share in the grand-father''s wealth is through the door of the father only and not with reference to their ownselves.'' 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." 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 VI relates to the rights of a posthumous son and of one bom after partition. Section VIII 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 XI 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 recognised at the present day. And this was so even in the 17th century, the time of Nilkantha, the author of the Mayukha, who says (Section IV, v. 46) that with the exception of the given son secondary sons are set aside in the Kali or present age. In this connection Sir Henry Maine in his Early Law and Custom, p. 100, observes: "the growing popularity of adoption, as a method of obtaining a fictitious son, was due to the moral dislike of the other modes of affiliation which was steadily rising among the Brahman teachers in the law-schools." 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."

The eleventh section 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 Section VIII). Next, intending to show the rule of. succession among sons, principal and secondary, the author describes them." 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." 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 giver of the funeral oblation or performer of obsequies, and taker of a share or successor to the effects." Placitum 23 : " If there be a legitimate son and an appointed daugther, Manu propounds an exception to the seeming right of the legitimate son to take the whole estate." 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''." 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.'' " It will here be seen the 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 Vrihaspati (xxv, 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." 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 Dvya-mushyayana, the son of two fathers. Section v, 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."

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 Edn.) 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." 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 v of the Mitaksharain dealing with the allotment of shares among grandsons is in no way concerned with the ''quality'' of the individual sharer; while Section xi 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 Section XI 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 the Mitakshara includes grandson. We are of opinion that the discussion relating to sons in Section XI 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.

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.