Kancheti Ramakrishnayya vs Mandadi Narasayya and Others

Viswanatha Sastry, J.—This appeal from the judgment of the learned Chief Justice raises a question as to the rights of an adopted son under the Hindu Law. The following pedigree will be found useful:

(See pedigree on next page)

On the death of Appayya without male issue, his two daughters Venkayyamma and Sita-ranmmma inherited his properties. Sitaramamma died in 1937 and Venkayyamma, who had been married to K. Satyanarayana as his first wife, died in 19S9 leaving no male issue. Satyanarayana married Ramamma as his second wife in 1940 but she died in the same year. On the death of Venkayyamma, Appayya''s brother, Hanumayya, claiming to be his next heir sued for recovery of his properties and obtained a decree for possession. The Plaintiff, who was adopted by Satyanarayana on 17-12-1942, brought the present suit for recovery of possession of Appayya''s properties from the 1st Defendant, the son of Hanumayya.

The suit was dismissed by the learned Chief Justice on two grounds: (1) The Plaintiff''s adoption did not relate back to 1939 when Venkayamma died and the estate of Appayya, which, on his death, had vested in Hanumayya in 1939 as his heir, was not divested by the subsequent adoption of the Plaintiff. (2) The Plaintiff was in the position of a step-son of Venkayyamma and had no right to inherit to the estate of Appayya as his daughter''s son. Both these grounds of decision were challenged In appeal.

An adopted son is entitled to inherit in the adoptive family as if he were a naturally born son both in the paternal and maternal line. He is entitled to inherit to his adoptive mother and her father and other relations. If a widow makes an adoption and she can make an adoption only to her husband-the adopted son stands in the same position as if he had been born to his adoptive father and his right of succession to his adoptive father''s estate relates back to the date of the adoptive father''s death. A sonless man can adopt even though he is a bachelor or widower. If a married man adopts, he need not associate his wife with him in the act of adoption and yet she will be the adoptive mother. If a man having several wives associates one of them in the act of adoption, then she alone will be the mother of the adopted boy, the other wives being his step mOrs. . So far the law is well-settled.

Treating an adoption by a wife to her deceased husband and an adoption by a husband after the death of his wife as standing on the same

____________________________ | | Appeyya Hanmayya | | | Narasayy (D.1). ___________________________________________________________ | | | | Ramamma K. Satyanarayana Venkayyamma Sitaramamma (2nd wife died in 1940) (died in 1943) (1st wife died in 1939) (died in 1937) | Ramakrishnayya (adopted on 17-2-42)Plaintiff

footing, the learned Judges in Subrahmanyam v. Muthiah Chettiar ILR (1945) Mad 638: (AIR 1946 Mad 187) (A) assumed that in the latter case the adoption would take effect as if the son had been adopted in the life time of the deceased wife of the adoptive father. They held that a sun adopted by a widower would divest an estate which had belonged to the wife of the adopter and had vested on or, death in her parent''s family under the customary law governing the parties. This decision, if correct, would support the Appellant''s ease. But it overlooks the obvious fact that an adoption by a widow is always to her husband and if he himself makes an adoption, it takes effect from the date when it is made and there is no question of relation back. There are also other weighty reasons for holding that the decision above cited is erroneous In law.

In the case of an adoption by a widow to her husband, the Judicial Committee in AIR 1943 196 (Privy Council) (B) gave an extended application to the rule that the rights of an adopted son relate back to the date of the adoptive father''s death and that the adopted son must be deemed, by a fiction of law, to have been in existence as the son of the adoptive father at the time of the latter''s death. Till this decision of the Judicial Committee, the law, as understood by the Courts, was that if there was a coparcenaries in existence when the adoptive father died and thereafter it came to an end by the death of the last surviving coparcener, an adoption made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir of the last surviving coparcener.

This principle of relation back and divesting of the property was extended by the Judicial Committee to property inherited by the heir from a collateral before the adoption took place. ILR 1944 Bom 116: (AIR 1943 PC 190) (B) was a departure -though not acknowledged to be such-from the view taken by the Judicial Committee in Bhuba-neswari v. Nilkomal, ILR 12 Cal 18 (PC) (C) that an adoption made by a widow to her deceased husband after the death of a collateral did not entitle the adopted son to come in as an heir of the collateral. According to the decision in AIR 1943 196 (Privy Council) (B), if the property goes by inheritance to a collateral and a son is adopted after the death of the collateral, the adoption would divest the property which had vested in the heir of the collateral if the adopted son would have been a preferential heir of the collateral if he had been in existence as such when the collateral died.

If matters had stood here, it might, with some show of plausibility, be argued that, as in the case of a widow''s adoption to her husband, so in the case of widower''s adoption, the rights of the adopted boy would relate back to the date of the death of the wife of the adoptive father and entitle him to divest the estate of the wife''s father which had vested in, his heir before the adoption was made. There are, however, three subsequent decisions, two of the Madras High Court and one of the Supreme-Court, which have expounded the law differently.

In Raju alias Srinivasan Chettiar Vs. Lakshmi Ammal and Another, (D) Satyanarayana-rao J. delivering the judgment of the Bench critically and exhaustively reviewed the case law-if We may say so with respect-and arrived at the conclusion that the principle that an adopted son''s rights date back to the death of the adoptive father so as to entitle him to divest the title of persons who took the estate, would not enable an adopted son to divest the estate of the collateral line which had vested in the heir before the adoption took place. This decision was followed by the learned Chief Justice and Rajagopala Iyengar J. in Shanmuga Vadivelu v. Kuppuswami ILR 1954 Mad 1152 (E) where it was held that in the case of collateral succession, the adopted son would not be entitled to divest the title of persons who'' took the estate at a time when his adoption had not been made.

Then followed the decision of the Supreme'' Court in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, (F) which though it does not refer to Raju alias Srinivasan Chettiar Vs. Lakshmi Ammal and Another, (D) proceeds on the same line of reasoning and reaches the same conclusion. The Supreme Court held that the rule that the rights of an adopted son relate back to the date of the death of the adoptive father so as to enable him to take the estate in defeasance of the rights acquired prior to his adoption, is based on the legal fiction, that he is in the position of a posthumous son but rule was limited in its application to cases where the claim of the adopted son related to the estate of the adoptive father.

Where, however, succession to the properties of a person other than the adoptive father was involved, the principle applicable was held not to be the rule of relation back but the rule that an inheritance once vested could not be divested. The Supreme Court expressly dissented from the decision of the Judicial Committee in AIR 1943 196 (Privy Council) (B) in so far as the latter held that the property inherited by Kesav from Narain, his uncle, on the latter''s death, was liable to be divested by Anand who was adopted to Khi-kappa by his widow after the death of Narayan.

The Supreme Court took the occasion to reaffirm the principle laid down by the Judicial Committee in ILR 12 Cal 18 (PC) (C) that an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. In Raju alias Srinivasan Chettiar Vs. Lakshmi Ammal and Another, (D) Satynarayanarao J. was of the opinion that the theory of provisional vesting of the interest of a deceased coparcener in the surviving coparcener or his heir and his liability to be divested by the introduction of an adopted son expounded by the Judicial Committee in Raghunadha v. Brozo K Lshore, ILR 1 Mad 69 (PC) (G); Yadao v. Nam-deo, ILR 49 Cal 1: (AIR 1922 PC 216) (H) ana Madana Mohan v. Purushottam, ILR 41 Mad 855: (AIR 1918 PC 74) affirming ILR 38 Mad 1105 at p. 1111- (AIR 1915 Mad 274 277) (I) must be confined to cases of lineal succession and that there was no reason or justification for extending that principle any further. We are in respectful agreement with the conclusion of the learned Judge.

It was argued for the Appellant that a daughter''s son stood very much in the position of a son''s son and continued the line of his maternal grandfather to whom he offered oblations. Reference was made to Mayne''s Hindu Law, llth. Edition, paragraph 478. It was urged that a daughter''s son succeeded to'' the estate of his maternal grandfather not as a collateral but as a lineal descendant and would therefore divest the estate of any person in whom it vested by inheritance before the adoption. The adopted son of a widower has a right to succeed to the property in the maternal line in the adoptive family and is therefore entitled to inherit to the father of his adoptive mother.

It was argued that the adoption by a widower related to the death of his wife and that the adopted son was in the position of a posthumous son of the wife and that the wile herself was in the position of the adoptive mother. The final step in the argument was that the adopted soul would digest all intermediate estates which had vested by inheritance in Ors. before his adoption subsequent to the death of the r.doptivo mother. These -contentions are opposed to principle and unsupported by authority except ILR (1945) Mad 038: (AIR 1946 Mad 187) (A).

The moment the daughter is married, she passes from her natural family into her husband''s family as a member thereof and after her marriage, it is the duty of the husband and the members of his family to maintain her and her children. The daughter and daughter''s son were given a preferential right by inheritance over the agnates of a deceased person because both reason and sentiment demanded such recognition. It is true that this preference was sought to be supported on the analogy of the appointed daughter and her son but it is impossible to equate the position of a daughter and her son to that of a son and son''s son, for the simple reason that the latter excluded the'' former from inheritance.

The lineal succession referred to by Satyanara-yana Rao J. in the case above cited is succession to the last male holder in the male line through males. The daughter''s son is not a member of his maternal grandfather''s family but remains as a member of his own father''s family though for purposes of inheritance he is given a preferential right over agnates. See AIR 1947 124 (Privy Council) (J). A daughter''s son is only a bhin-riagotraSapinda whose existence is no bar to an adoption. The adopted son is a complete, substitute for an auras a son in the adopter''s family as if he was born in it but a daughter''s son does not occupy that position. The argument of the Appellant files in the teeth of the decision of the Supreme Court in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, (F) which definitely laid down that "the relation back of the right of an adopted son is only quoad the estate of the adoptive father".

The learned author of the llth Edn. of Mayne''s Hindu Law doubted the correctness of the decision in ILR (1945) Mad 638: (AIR 1946 Mad 187) (A) and remaked as follows at page 256:

The correctness of this decision is open to question. Adoption is to a male Hindu to secure his spiritual benefit or the perpetuation of lineage. Adoption no doubt relates back to the death of the adoptive father but only quoad his estate and not in to other cases. The learned Judges stated that adoption relates back to the death of the adoptive mother also quoad her estate. For this view there is scarcely any warrant or authority.

Though the decision in ILR (1945) Mad 638: (AIR 1946 Mad 187) (A) which is cited in the leading text books on Hindu Law, is afoot referred to in the judgment of the Supreme Court in Shriniwas Krishna Row v. Narayan Devji (P), the reasoning of the former is inconsistent with that of the latter and we are bound by the decision of the Supreme Court. We therefore hold that the adoption of the Plaintiff took effect only from the date when it was made and ''that he is not entitled to divest the estate of Appayya which devolved on Hanu-mayya on the death of Venkayyamma.

In this view it is unnecessary to decide the questions (1) whether, when a widower, who had an only wife, adopts, the adopted son becomes the son of the deceased wife so as to entitle him to inherit to her father and the relations in her father''s family and (2) whether, when a widower with two or more deceased wives makes an adoption, the dotted son is to be regarded as the son of all the wives or of one and if so, of the Senior wife or the junior wife or of the wife who died first or of the wife who died last irrespective of seniority.

Much ingenuity, legal acumen, dialectical skill and .judicial time have been spent on solving these problems during the last sixty years beginning with the case of Annapoorni Nachiar v. Porbes ILR 23 Mad 1 (PC) (K) would have thought that the decision of Phillips and Madhavan Nair JJ. in Sundaramma Vs. Venkatasubbier and Others, (L) and Ramesam, Ananta-krishna Ayyer and Cornish JJ. in Sountharapandian Aiyangar (deceased) and Others Vs. Periaveeru Thevan and Others, ) (M) had laid down a workable rule in conformity with the prevalent ideas and practices of the community, whatever the etymological meaning of the much discussed Sanskrit expression "Pratigrihitriya matha" might have been.

The law of adoption administered by Courts is almost entirely Judge-made law and the contribution of Nanda Pandita and Kubera through Dat-taka Mimamsa and Dattaka Chandrika is negligible. Both in English and Sanskrit many expressions have acquired a wider connotation than their literal cr etymological meaning. The five learned Judges, who decided the two cases cited above, were of the opinion that the adopted son of a Hindu, whose only wife had died before adoption, became the son of that wife so as to be entitled to inherit to the relations in her father''s family. The members of this controversy, however, had not died with the Full Bench decision in Sountharapandian Aiyangar (deceased) and Others Vs. Periaveeru Thevan and Others, and attempts were made now and then by lawyers and Judges to revive it.

These attempts resulted in a recent decision of a Full Bench of five Judges of the Madras High Court in Sivagami Achi v. Somasundaram Chettiar, 1956 1 Mad LJ 441: ((S) AIR 1956 Mad 323) (N) where the conclusion was reached that an adoption by a widower could not make his deceased wife, even by fiction, the mother of the adopted boy. The decision of the earlier Full Bench in Sountharapandian Aiyangar (deceased) and Others Vs. Periaveeru Thevan and Others, was overruled Incidentally, the learned Judges dissented from'' the decision in ILR (1945) Mad 638: (AIR 1946 Mad 187) (A) and doubted the correctness of some of the observations of the learned Chief Justice in the judgment now under appeal Rama-krisbnayya v. Narasayya, 1954 AP LT 60 (O).

Since the five Judges'' decision of the Madras High Court was given after the constitution of this Court we are not bound to follow the learned Judges where they lead. An adoption would be valid if made by the husband without associating his wife with him and in spite of her dissent. Though the wife Is not a FRATIGRIHITRI and though she non-co-operates or dissents, she would still be the adoptive mother entitled to succeed to the adopted son if he dies without leaving a wife or issue. The decision of the Pull Bench in Sountharapandian Aiyangar (deceased) and Others Vs. Periaveeru Thevan and Others, M) had stood for more than three decades and many titles would have been founded upon it.

Even if it be held that an adoption by a widower, who had an only wife, could make her the mother of the boy adopted after her death, a difficult question would arise, if the widower had two wives, who had died before the adoption should tooth the wives or one of them be considered to be the adoptive mother and if so which of them? The learned Chief Justice would accord the position of adoptive mother to the second wife while the Appellant contends that the senior wife alone would have that status. There is some force in the Appellant''s contention though there is no precise authority on the point.

In this case it so happened that the husband married a second wife, after the death of the first wife. If he has two wives at the same time and the second wife predeceased the first, who is to be considered the adoptive mother, the first wife or the second. In Kakerla Chukkamma Vs. Kakerla Punnamma and Another, (P) and Venkatappa Nayanim v. Rangarao ILR 39 Mad 772: (AIR 1916 Mad 919 (2) ) (Q), two Division Benches of the Madras High Court held that among co-widows, the senior widow had a preferential right to make an adoption on the ground that according to texts, the senior wife had a preferential ''right to perform acts of religion and adoption was a religious act. In Thiruvengalam v. But-chayya, ILR 52 Mad 373: (AIR 1929 Mad 11) (R) a Hindu died leaving two wives to both of whom he gave general authority to adopt.

Both of them jointly took a boy in adoption. The Court held that the adoption was valid but the senior widow alone would he the adoptive mother. It is difficult to accept the contention of the Appellant that both the deceased wives of a widower who makes an adoption, should be regarded as adoptive mOrs. , merely because the adopted son conferred spiritual benefit on both of them. The solution of the problem is not free from difficulty. In view, of our conclusion that even if Ven-kayamma is to be considered to be the adoptive mother of the Plaintiff, he cannot divest the estate of Appayya which had vested in his brother. Hanu-mayya, we do not consider it necessary to decide the question whether when a widower, who had two or more wives makes an adoption, the first wife or the second wife or the wife who died last Is to be regarded as the adoptive mother. It is possible that the Bill now before the Parliament codifying the law of adoption, copy of which is not available to us, would solve this puzzle which has perplexed lawyers and Judges for many decades.

For the reasons stated above, we hold that appeal fails and should be dismissed with costs.