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Tewari Raghuraj Chandra Vs. Rani Subhadra Kunwar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1928)30BOMLR829
AppellantTewari Raghuraj Chandra
RespondentRani Subhadra Kunwar
DispositionAppeal dismissed
Excerpt:
.....and substitution in adoptive family.;under the hindu law adoption operates as severance of his born brothers from him and from the name of brother for all purposes connected with succession to property.;although for certain purposes (e. g. marriage in his natural family within the prohibited degrees) the blood relationship of an adopted hindu remains real and binding after the adoption, nevertheless uncorking to the strict theory of hindu law adoption in a real scene fund not merely figuratively a new birth.' the theory involves the principle of an entire severance and expulsion of the child adopted from his original family, and his complete substitution into the adoptive family, as if he was born in it. the fundamental idea is that the boy given in adoption gives up the natural..........claim to inherit on his death as the senior direct descendant of eaja chandra shekhar's eldest-born brother, it is contended that hindu law, properly understood, contains nothing which militates against the right of a bora brother to be the brother, whose statutory right of succession is provided for by section 22(5) of act iii. of 1910. the matter, it is said, does not depend on the rights of succession, as a member of a new family by adoption, which raja chandra shekhar might have had to properties belonging to other members of the house of sissendi, but on the survival of the blood relationship for the legal purposes of hindu law between raja chandra shekhar and hi a brothers born. unless it can be said that in law the effect of the adoption of raja chandra shekhar was to make.....
Judgment:

Viscount Summer, J.

1. [The judgment after dealing with other points in the case proceeded :] The last question is 'What in truth is the rule of Hindu law-the personal law of Raja Chandra Shekhar-in its bearing on Krishna Narain's claim to inherit on his death as the senior direct descendant of Eaja Chandra Shekhar's eldest-born brother, It is contended that Hindu law, properly understood, contains nothing which militates against the right of a bora brother to be the brother, whose statutory right of succession is provided for by Section 22(5) of Act III. of 1910. The matter, it is said, does not depend on the rights of succession, as a member of a new family by adoption, which Raja Chandra Shekhar might have had to properties belonging to other members of the house of Sissendi, but on the survival of the blood relationship for the legal purposes of Hindu law between Raja Chandra Shekhar and hi a brothers born. Unless it can be said that in law the effect of the adoption of Raja Chandra Shekhar was to make Earn Chandra no longer his brother, then by the explicit words of the enactment, Ram Chandra's lineal descendant and no other was next in succession to him.

2. It is quite true that for certain purposes the blood relationship of an adopted Hindu remains real and binding after the adoption. For example, his born sister is within the prohibited degrees of affinity. It is true also that authoritative texts of the writings, in which the Mitakshara law was originally expressed, dwell on the matter of inheritance and succession in connection with adoption in a way that leaves some of the consequences of adoption unexpressed. They define the rights of the person adopted as a member of his adoptive family, but they do not in terms complete the matter by prescribing his entire expulsion from, his original family and the severance of his born brothers from him and from the name of brother for all purposes connected with succession to property. Hindu law, however, has not stood still. Those texts have been elucidated and applied since 1869 in a great number of decisions which have authoritatively settled the law, and in construing the Acts the personal law applicable, when once it is held that the Acts imply the application of personal law, is the personal law as it exists at the time when the question in the suit has to be decided.

3. It is not true to say that by Hindu law an adoptee only loses his consanguinity for purposes of succession. Adoption has been spoken of as 'new birth' iu many cases, a term sanctioned by the theory of Hindu law. Nor is the expression a mere figure of speech. The theory itself involves the principle 'of a complete severance of the child adopted from the family in which he is born...and complete substitution into the adoptive family, as if he were born in it' (Ntigindas JJhuywandas v. Bachoo Hur-kimonda (1915) L.R. 'The fundamental idea...[is] that the boy given in adoption gives up the natural family and everything connected with the family' (Datiatraya Sakharams case, 40 Bom. p. 435). 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.' It is not merely the ceremonies for the natural father, who has given, or for the adoptive father, who has taken, a son in adoption that are involved, but those for the ritual number of ancestors in each case, 'Let no man give, or accept, an only son, since he must remain to raise up a progeny for the obsequies of ancestors,... He who means to adopt a son,...may receive as his son by adoption,... even one remotely allied.... The class ought to be known, for through one son the adoptee rescues many ancestors' (Vasishtha, cited in Mayne's Hindu Law, Section 107). Consideration of the intimate connection, which primitive Hindu laws established between the funeral offerings and ceremonies on behalf of the dead and the right of succession to his property, will show that ceremonially the adopted son only becomes newborn in the family of his adoptive father, so as to be qualified to provide efficaciously the offerings of which the dead have need, by first dying in the family of his birth, out of which he is given by his natural to his adoptive parent, and in which his offerings will be no longer efficacious or desired. If such a person's natural brother were to be made the heir to the taluq, how could he, still a member of the family of his birth and bound to make the necessary offerings for his own ancestors, be qualified to do the same thing for his brother and his adoptive father and that father's immediate predecessors? If he cannot, how is the legal theory squared with the termination of the ceremonies in the family into which the son was adopted? Their Lordships think that these considerations are conclusive.

4. They would add that the argument demands a construction, which it is wholly unreasonable to put upon the word 'brother', having regard to the scheme and subject matter of the legislation itself. The object was to provide, a fixed canon of succession, applicable indefinitely in fiituro, and applicable also to families of different races, tribes and religions. The Act of 1869 was the result of discussions and negotiations, which took place at Calcutta in 1868, the parties to which in general terms are known (Maharajah Fertab Narain Singh v. Maharanee Subhao Kooer (1877) L.R. 4 IndAp 238 For what reasons this particular sequence of accused clerical error for adopter. See sions was adopted their Lordships do not affect to know, but this at least is clear, that it was done on some definite view of sound and consistent policy. Hindu law, it is true, is in not a few instances deliberately departed from, but there could be no rational object in devising a mongrel rule of succession and construing it exclusively in the sense of the English terms used in expressing it. The section must be read, so far as its language permits, so as to be rational and orderly, not so as to be arbitrary and capricious. The appellants' interpretation would make the provision cut across the recognized principles of Hindu law on the subject without approximating to the law of any other community; would exclude some persons by mere chance without in any way securing proprietors more competent or loyal than those, whom the regular Law of succession would bring in, and would produce confusion instead of order and discontent instead of satisfaction.

5. Their Lordships will accordingly humbly advise His Majesty that this appeal ought to be dismissed with costs.


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