1. This appeal raises an important question of Hindu law, which may be stated as follows: When a married Hindu, having a son, is given in adoption by his natural father, does the Hindu's son also, like his father, lose the gotra and rights of inheritance in the family of his birth and acquire the gotra and a right of succession to the property of the family into which the Hindu is adopted
2. The parties to this second appeal are Jains, but, in the absence of any special custom, Jains are governed by the ordinary Hindu law: Bhagwandas Tejmal v. Rajmal 10 B.H.C.R. 241; Sheo Singh Mai v. Musammat Dakho 51. A. 87 : 1 A. 688 : 6 N.W.P.H.C.R. 382
3. No special custom, departing from the ordinary Hindu law of adoption, has been set up in the present case, and the question above stated must be determined with reference to that law.
4. The Subordinate Judge (Mr. V.V. Phadke), who tried the suit out of which this appeal arises, has decided the question in the affirmative, mainly on the strengh of a vyavastha (rule) quoted as from a manuscript at page 1148 of West and Buhler's Digest of the Hindu Law (3rd Edition), and on the analogy of the Roman law. The Vyavastha apparently represents the view of a Shastri, and is one of the opinions collected on different points of Hindu law by the learned authors of the Digest. The vyavastha is as follows:
A man having a son is adopted and then dies. His son takes his place as heir in the adoptive family.'
'This is so, though another son is born (to the adopted) after the adoption.
The son born before his father's adoption not only is heir to the adoptive grandfather's estate bat is answerable for a debt of the grandfather admitted by his father.'
5. No reason is given, no text cited in support of this opinion. We cannot, therefore, accept it, unless a close and careful consideration of the principles of Hindu law, bearing on the question under consideration, satisfies us that it is correct.
6. The Subordinate Judge has also adopted for a basis of his decision the analogy of the Roman law on the point' as 'a guide under such circumstances', as if the Hindu law we're barren of light on the subject. That law is a jurisprudence by itself and contains within its limits all the principles necessary for application to any given case. It is doing scant justice to Hindu law as a science to suppose that, because there is no express text providing for a concrete point arising for adjudication, therefore, there is nothing in it to guide a Judge in deciding that point and he must import analogies from foreign laws to help him. The Hindu law-givers have not indeed laid down a rule in express terms on every conceivable point. But having provided texts for such cases as had arisen before or in their time, they left others to be determined either with reference to certain general principles laid down by them in clear terms or by the analogy of similar oases governed by express texts. Had the Subordinate Judge (a Hindu) gone into the question in this case a little deeper and considered the authorities on Hindu law a little more carefully than he seems to have done, he would have found that there was no need of Romanising the Hindu law for the purposes of his decision.
7. In determiing the question before us we must bear in mind the exact position which the son born to an adopted Hindu before the adoption occupied at that time. By birth he acquired the gotra or family of his birth; and, if that family was joint and owned ancestral property, (as was the case with the parties before us), he acquired by the very. fact of birth, joint ownership over that property with his father. Grandsons,' says the Mitakshara, (Ch. I, Section V, pl. 2, ' have by birth a right in the grandfather's estate equally with sons.' The grandson has a right of prohibition, if his unseparated father is making, a donation, or a sale, of effects inherited from the grandfather.' (pl. 9). It is true that this right of ownership by birth which grandsons acquire is subject to the qualification that at partition 'the distribution of the grandfather's property must be adjusted through. their fathers, and not with reference to themselves,' (pl. 2); but that qualification merely fixes the measure of their share. It does not destory the vested right of equal ownership with the father, which exists all the same in the grandsons. As explained in the Viramitrodaya: Thus the competency being equal, and right by birth also being equal, equal participation would have followed but is prevented by the text. Among grandsons by different fathers, the allotment of shares is according to the fathers' (Vir. Mit., Mr. Gopal C. Sarcar's Translation, 3rd Edn., page 90).
8. The Subordinate Judge admits all this in his judgment, but he gets over it by observing that the interest acquired by a grandson 'is not fixed once for all but is liable to be varied or done away with altogether,' because his share may be increased or decreased according as his father or grandfather has more or less sons and because the father has power to alienate the property. This is a fanciful mode of explaining away the grand-son's interest acquired by birth. A. man's interest in property as joint owner does not cease because circumstances may increase or diminish the quantum of that interest. As for alienation, it is allowed only in special cases. But that does not affect the question of the grandson's vested right. To quote the Viramitrodaya again: It has been established that in the grandfather's property the grandsons also acquire ownership by birth; hence the equality of the grandson's share (with a son's share) in the grandfather's property is based upon the authority of the texts and not founded upon any equitable principle' (page 91).
9. 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. In the case of a son whose father has been given in adoption after his birth, if none of these modes for the extinction of his vested rights of property applies, there must be the clear authority of some text for holding that the rights in question are extinguished because the father of the owner of those rights, having been given in adoption, has his rights in his natural family extinguished by the act of adoption.
10. So also as to the gotra. That is determined by birth and it adheres to a Hindu male throughout unless it is changed by his adoption into another family.
11. It is urged by Mr. Jayakar, who has argued the case for the respondent with his usual ability and learning, that clear authority for the extinction of the rights and gotra is to be found, first of all, in the text of Manu which says:
A given son shall never claim the family and estate of his natural fathers; the pinda (the obsequial oblation) which follows the family and heritage and the shraddha and other funeral ceremonies of the giver cease.' (Manu Ch. IX, Verse 242: see Mandlik's Hindu law, page 59, lines 10 to 13.)
12. The original word for family' in this text of Manu is gotra, Mr. Jayakar argues that gotra means santana, literally, continuation, as observed by Telang, J. in Rachava v. Kalingapa 16 B. 716 or santati, literally, a line of descendants, as explained in the Dattaha Mimansa (page 25, Shiromani's Edition), and the Samskara Kaustubha.
13. These words are not always used of descendants only. They are often used as meauing ' family,' the whole group of ascendants and descendants. Medhatithi says that, according to some, gotra means vamsha, which applies both to the line of' ascendants and of descendants. The author of the Samskara Kaustubha cites a smriti of Trikandi, which says that santati, gotra, janana and kula are synonymous terms. Kula means, literally, family.
14. For the purposes of his argument, to make it logical, Mr. Jayakar must contend that the word gotra is used in Manu's text as applying only to the descendants of the man giving his son in adoption. The argument is that when the son is given, his son too ceases to belong to the family of his birth; and that because Manu's text says that the man given in adoption is cut off by the adoption from the gotra, meaning, the descending line of the giver. If that is the meaning of the word, what. becomes of the adopted man's connection with the ascending line of his natural father? Does that continue? Mr. Jayakar is forced to admit it does not.
15. Vijnaneshvara in the Mitakshara gives us the meaning of gotra, (Mit. Section V, pl. 6) on the authority of Vrihat Manu. 'It reaches as far as the memory of birth and name extends.' If gotra means both the ascending and the descending line of the natural father of the man given in adoption, the latter, according to Manu's text, ceases, after adoption, to have connection with both the lines. That includes his own sons born before the adoption.
16. The text of Manu, which we are now discussing, in terms relates to the personal status of the man given in. adoption. It predicates certain things of him, and him only, as the result of adoption. They are the extinction in case of the gotra (family) of his natural father and the right of succession to this property. And according to Hindu logicians (Naiyayikas), 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, Mann's text, therefore, 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.
17. But Mr. Jayakar contends that the explanation of the text given by Nilakantha in the Vyavahara Mayukha brings that son within its operation. That explanation is as follows:
Therefore, the son begotten by the simple adopted son should likewise perform his father's sapindi karana, parvana, shraddha and the like ceremonies in conjunction even with the original adopter.' (Mandlik's Hindu Law, Page 59, lines 32 to 35).
'The son begotten by the simple adopted son' means, according to Mr. Jayakar, a son begotten whether before or after adoption. But the original words used for that expression do not support that construction. The words are kevala dattaka janyaha putraha that is a son begotten by the simple adopted son. The begetter is specified as one endowed with a particular status-that of adoption. The special reference to the status shows that the son begotten by such a person is one begotten after that person has acquired the status. That is the natural and grammatical construction of the words. Take, for instance, the word vibhaktaja (a son begotten by a separated co-parcener), used in a smriti quoted in the Mitakshara (Ch. I, Section VI, pl. 4). It means, 'one begotten after partition.' So also the words patitastajjaha used in the text relating to exclusion from inheritance. It means the offspring of an outcaste' that is as explained by all the commentators, not one begotten by the person out casted before excommunication, but one begotten while the begetter was under that disability. Similarly, 'a son begotten by a simple adopted son' must mean one begotten after, not before adoption.
18. The declarations which have to be made at the ceremony of adoption by the person giving and the person taking respectively. are relied upon by Mr. Jayakar as supporting his case. The declaration made by the natural father of the boy is as follows:
I am going to give my son in adoption in order to create (between my son and his adopter) those various reciprocal relations which arise from the various relations such as that of father and son (at present ) existing between me and the like on the one hand and this my son on the other' (Mandlik's Hindu law, page 64, lines 6 to 10.)
19. This declaration refers to extinction of the reciprocal relations' which exist at the time of the adoption ceremony between the boy and his natural father. They do not in terms refer to the reciprocal relations existing then between that father and his grandson, that is, a son begotten already by the son who is being given in adoption. A grandson stands in the place of a son to his grandfather; there are reciprocal relations between them just as there are between the father and the grandfather. They arise no doubt through the father but nevertheless they become, after they have arisen, independent of the relations between the father and the grandfather. And there is nothing in the language of the declaration above cited to show that these reciprocal relation between the grandfather and the grand. son are affected by the gift of the father in adoption.
20. But Mr. Jayakar maintains that the reciprocal relations of grandfather and grandson are not independent of those between the former and the father. The grandson, he argues, is related to his grandfather through the father; the father is the principal link which binds the grandson to the grandfather, and he asks, if the link is cut off, what is left to bind the grandson to his grandfather?
21. This ingenious argument would seem to derive some support from the doctrine of Jimutn Vahana on the subject of a grandson's right of ownership acquired by birth in his grandfather's property while the father is alive. According to him ''the grandsons and the great grandsons whose father are alive cannot confer oblations on the parva occasions; they are not, therefore, entitled to the estate of their grandfather and great-grandfather respectively.... Their interest in their grandfather's wealth is founded on their relation by birth to their own father; consequently they have a right to just so much as should have been their father's share.'
22. This is not, however, the doctrine of the Mitakshara school. The author of the Viramitrodaya, who is substantially a follower of that school, quotes the above mentioned remarks of Jimuta Vahana and combats his view. He says that view is not' acceptable,' (see the Viramitrodaya, translated by Mr. Golap C. Sarkar, 3rd Edition, pages 90 and 91, Section 23 a paras. 2 and 3). The reason he gives is that 'in the grandfather's property the grandsons also acquire ownership by birth.' That is the cardinal principle of the Mitakshara school which divides it from the school of Jimuta Vahana. It is not correct to say that the father is the link so binding the grandson to the grandfather that, if it breaks, it carries with it the grandson too. The father is a link so far that through him sapinda relationship between grandfather and grandson is brought about. This is pointed out by Vijnancshwara in the chapter on Achara (Ceremonies) in the Mitakshara, while explaining the term sapindata as connection by particles of one body '(see the passage cited in translation in Lallubhai Bapubhai v. Mankuvarbai 2 B. 388 at p. 423. But when the relations has once been brought about by birth the grandson becomes an entity by himself, and the continuance of that relation does not depend on the continuance of the father's relation to the grandfather. Even if the father die or become an ascetic, or outcaste, and thereby cease to have any right to the grandfather's property, the rights of the grandson, born before any of those events, do not cease but continue.
23. One of the obligations which the Shastras impose upon every Hindu as arising from his relations to his paternal ancestors is to beget a son and thereby discharge a debt called pitru runa or paternal debt due to those ancestors. This reciprocal obligation, it is urged, is extinguished when the Hindu is given in adoption by his father and the extinction means the wiping out of the line of son, grandson &c.; represented by the son given in adoption, so far as the giver and other members of his family are concerned. The answer to that is that when the Hindu has begotten a son before he is given in adoption, the paternal obligation has been discharged; the debt has been paid off; and that particular 'reciprocal obligation' has as obligation ceased to exist. Immediately on the birth of his first-born a man is called the father of a son and is freed from the debt to the manes.' [Manu IX, 106]. The son born to the Hindu has taken the place of the debt, as grandson born in the family he has acquired certain rights; and there is no question of reciprocal obligation with reference to him between the Hindu and his father giving him in adoption. A debt discharged in the mode prescribed by the Shastras ceases to be a debt and with it the obligation as to it dies, so far as the father is concerned. The grandson becomes charged with a similar obligations he becomes a continuer of the line himself See on this point Section 23 A. of the Viramit-rodaya, page 90 of Mr. G.C. Sarcar's translation, 3rd Edition. being both for religious and secular purposes of as much value to the grandfather as the father. 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 ex-communication or by the giving of the grandson himself in adoption by his father. Nowhere do the Shastras say that they are extinguished by the mere fact of the father having been given in adoption.
24. The declaration made by the person taking the Hindu in adoption at the adoption ceremony, runs as follows:
In order to create between this person on the one hand, and me and the like on the other hand, various reciprocal obligations consequent on the various mutual relations, such as those of father and son, I am going to adopt (this person as) a son.' (Mandlik's Hindu Law, page 64, lines 19 to 23.)
25. Here again, 'the reciprocal obligations' spoken of are those to arise in future, that is, after the adoption, as a consequence of it. One of those obligations is for the adopted son to beget a son and thereby discharge the pitru runa or paternal debt. That cannot mean discharging a debt by means of a son born before the adoption who has already served to discharge another debt, due to the ancestors in the natural family of the adopted son.
26. So far, then, as the texts and commentaries bearing directly on the question of adoption are concerned, they do not support the case for the respondent. They deal merely with the personal status of the man or boy given in adoption; and do not purport to affect the status of his son, begotten before adoption.
27. But it is argued that when a married man is given in adoption, his wife passes with him into the adoptive family-she, like him, acquires the new gotra; that what applies to the wife of the man adopted must apply to his son also begotten before the adoption, because, both according to the Smriti writers and their commentators, a man's wife and sons go together. In support of this argument reliance is placed on a text of Narada cited by Vijnaneshvara in his Chapter on Resumption of Gifts' in the Mitakshara (page 225, Moghe's 3rd Edition).
28. That text says that a man shall not make a gift or sale of his sons and wife. The reason for that rule as given by Nilakan-tha in the Vyavahara Mayukha is that, 'there being no ownership over a wife as there is in a cow &c.; there cannot be any property in the children begotten on her. (Mandlik's Hindu law, page 35, lines 32 and 33). This merely propounds the law so far as a man's power to make a gift or sale of his wife and children is concerned. It does follow from it that the man's relations to the children are the same in every respect as his relations to his wife. When he is given in adoption, his wife passes with him into the adoptive family, because according to the Shastras, husband and wife form one body. A woman can be given in marriage but once (Mandlik's Hindu law, page 169, para. 65). For the purposes of dharma (religion), artha (wealth), and kama (desires), she and her husband are inseparably united; as long as her husband is alive, the wife is dependent on him; with her he has to worship the domestic fire; she is necessary to him for family sacrifices; in short, as a commentator puts it, 'the relation of husband and wife is one of close proximity'. If the husband becomes contaminated by one of the deadly sins (mahapataka), the wife has to wait till he is purified. On her death, her funeral ceremonies have to be performed by the family (golra) of her husband, if her marriage has been according to one of the approved forms. That is by the gotra to which the husband belonged at her death. This intimate relation between husband and wife makes it necessary and natural that when the husband is given, in adoption, his wife should pass too, because the lot of one is cast with that of the other. But that kind of intimate relation does not exist as between a father and his son. It is true that, according to the Shasiras, there is a certain kind of identify between them. The father,' it is said, ' is reproduced in the son'. The meaning and import of that is explained in the judgment of this Court in Gangu v. Chandrabhagabai 32 B. 275 10 B.L.R. 149 which deals with the question of the exclusion of persons under disability from inheritance.
29. The theory of identity between a father and his son recognised by the Shastras does not mean that they are one body as husband and wife are. It means that they are to some extent co-equals. Adoption does not disqualify a man for inheritance or a share at a partition in the same way as disqualifying causes such as impotence, ex-communication from caste, blindness, lunacy, and the like. The latter deprive a man absolutely of the right to inherit and the right to partition. Adoption, on the other hand, substitutes those rights in the family of adoption for those acquired in the family of birth. No complete analogy can, therefore, be drawn for the purposes of the question we are now discussing from the text on the subject of exclusion from inheritance or partition of persons disqualified.
30. But, assuming that an anology can properly be drawn, it is rather against than in favour of the respondent's case. The leading text on the subject of disinherison mentions the persons disqualified, but does not mention their sons except in the case of the outcaste. Even in that case, it is only the son born after the father's ex-communication, that is included among disqualified heirs. The next text refers to the aurasa and kshetraja sons of the persons disqualified. In the case of these sons, that text says no disqualification can exist, if they are personally free from the disabilities mentioned in the preceding text. This second text, says Vijnaneshvara in his gloss in the Mitakshara, became necessary because of the preceding text 'implying' that the father's disqualification leads also to the son's disqualification. Not that it necessarily implies, but that the second text is intended to remove a doubt which may arise in consequence of the mutual relations of father and son.
31. Now, in dealing with the question of exclusion from inheritance, the Smriti writers and the commentators have taken care to point oat expressly that certain kinds of sons do not but other kinds of sons do share their fathers disqualification. But they have not done that in dealing with the subject of adoption.
32. If it be argued that the reason for providing a special text exempting the aurasa and kshetraja sons from sharing their father's disqualification for inheritance could only be that, but for that special text, those sons with the other kinds of sons would have been included in the father on the ground of the Shastric identity, the answer is furnished by the language of the leading text on the subject of disinherison. If, because of that identity, what disqualifies the father must disqualify the son also in all matters and especially in those relating to property, where was the necessity of specially referring in that text to the son begotten by an outcaste after the latter's ex-communication and not mentioning at the same time the sons of the other disqualified persons? If a father and his son are identical so that what happens to the one must happen to the other, then it must follow that if a father becomes an outcaste, or contract some other impurity, the son must also necessarily contract it. And yet every Hindu knows that is not the law or Shastra.
33. But then, argues Mr. Jayakar, if it be held that the son of a Hindu begotten before the latter's adoption, does not pass with the Hindu into his adoptive family but remains a member of the family of his birth, this result must follow that the son in question cannot, on the Hindu's death, perform the different obsequial ceremonies, due from every son to his deceased father, and that because the father in such a case has ceased to be his father by going into another gotra or family. The son can perform the shraddha and other death ceremonies of his grandfather but the Shastras prescribe that in all these ceremonies the oblations must be offered to the soul of the father first where the father has died. Here there is no father, he having gone into another family, and if there is no father, the oblations to the grandfather and other ancestors cannot be given. This argument involves the assumption that when a married man having a son is given in adoption, one result of the adoption is that it destroys the natural relation of father and son between them for the purposes of obsequial ceremonies. All that Mann's text) to which reference has been made in the foregoing part of this judgment, lays down is that the man given in adoption loses his natural gotra or family and the right to inherit the property of his natural father and with them his right to offer pinda or funeral oblations to his natural father. But the text does not say that the son of that man, born before his adoption ceases to be his son and loses the right to offer funeral oblations to his soul, in case of his death. For one thing, according to the Hindu Shastras, 'by no means can you make your father cease to be' (Jaimini Bibliotheca Indica series, Vol. I, p. 742). The mere fact that the father has gone into another family by adoption and ceased to be of his son's gotra or family cannot unmake what he naturally is-the son's father. The gotras of the two may differ in consequence of the adoption but it is not always, necessary for funeral ceremonies that the person performing them should be of the same gotra as the deceased. A sister's son and a son-in-law can perform those ceremonies and yet they are not of the same gotra. So a son begotten before the adoption of his father would be entitled to perform the latter's funeral ceremonies. All the Smriti says is that such ceremonies shall be performed by a son'. It does not make the obligation dependent upon the continuance of the father in the-same gotra as the son.
34. In that case, argues Mr. Jayakar, the son must be also entitled to the father's property in his adoptive family. That is a non sequiter., According to Apararka, a son must perform the funeral ceremonies of his father even where the father has left no property for the son to inherit. (Apararka, Anandashrama Series, page 463).
35. Manu's text says that the funeral oblation follows the inheritance, not the inheritance the funeral oblation. Nilakantha in the Vyavahara Mayuhha makes this clearer; The funeral rites of the deceased, as far as the 10th day inclusive, should be performed by whoever takes his wealth, including the king himself. And Vishnu says the same: He who takes the wealth is declared (to be) the giver of the pinda or funeral oblations'. (Mandlik's Hindu Law, p. 84, lines 15, 16, 20). And Balambhatta explains in his commentary on the Mitakshara that 'the right to offer funeral oblations and the right to take the deceased's property by right of heirship are not always co-extensive but they may be opposed.' So also the Viramits rodya
' The capacity for presenting funeral oblation is not alone the criterion of the right to heritage, since the younger brothers are entitled to the heritage although they are not competent to off or oblations while there is the eldest brother.' (The Virmitro-daya, translated by Mr. Golap C. Sarkar, 3rd Edition page 91.)
36. But, Mr. Jayakar asks, what if the man giving his son in adoption, dies after the adoption, leaving him surviving that son and his son begotten before adoption? The man's son cannot perform his funeral ceremonies, because Manu's text ordains that to be a necessary result of the adoption. Nor can that son's son perform it, because it is laid down that no one who has his father alive shall perform any Shraddha.
37. The answer is, that is the general rule, but to it there are several exceptions. It is unnecessary to specify the latter here. They are given in detail by Mlakantlia in his Shraddha Mayukha. Among the exceptions is a case where the father has become an ascetic (sanyasta) or an outcaste (patita). In such a case, says Nilakantha, the grandson has the right to perform all the ten shrad-dhas The reference is to pages 22, 23 and 24 of the Edition published by Mahadheo Gopal Shastri Amrapurkar, Jnana Dnrpana Press The general rule in fact applies only where the grandfather has left a son qualified to perform the ceremonies. This is clear from a Smriti of Katyayana quoted by Madhavacharya in his Parashara Samhita, (Bombay Oriental series, Vol. I. part II, p. 462) which says:
' A grandson should not perform (the funeral ceremonies of the grandfather) if the grandfather has (died leaving) a son.'
38. If the grandfather dies after having given his son in adoption, he must be regarded as having died sonless for the purposes of his funeral ceremonies and of succession to his property. The grandson in that case takes the son's place, It is not correct, therefore, to say that a grandson has no power in any case to present oblations so long as the father is alive. As is pointed out by Mitra Misra in the Viramitrodaya, the fitness for presenting oblations...is not wanting in grandsons too (while their father is alive)' (Translation by Mr. Golap Chandra Sarear, 3rd edition, page 91).
39. For these reasons the question argued in this appeal and stated at the commencement of this judgment must be answered in the negative The result is that the appeal must be allowed, the decree of the Subordinate Judge reversed, and the claim of the appellant awarded with costs throughout on the respondents.