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Ganpatrao Shripatrao Kalmadi Vs. Balkrishna Gururao Kalmadi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 319 of 1939
Judge
Reported in(1942)44BOMLR333
AppellantGanpatrao Shripatrao Kalmadi
RespondentBalkrishna Gururao Kalmadi
DispositionAppeal dismissed
Excerpt:
hindu law -adoption-dwyamushyayana form-sons of adopted son born after adoption-such sons inherit adoptive father's properly. - - however, it has not been argued before us that the sons of a dwyamushyayana belong, like their father, both to the adoptive family and to the natural family of the father. there is undoubtedly good support for this view. 41 seems to be perfectly clear. i am not satisfied by the learned argument for the appellant that there is anything in the original texts or books which is really inconsistent with that view. he relies on placitum 42 which quotes a passage by satyashadha and the explanation of that passage by sabaraswami :(i) 23. sutherland's rendering of that passage is as follows (see stokes' hindu law, dattaka mimansa, section vi, placitum 42, page 611)).....broomfield, j.1. the facts are given in the judgment of the trial court. the only question argued in this appeal relates to the position in respect of inheritance of the sons of a man adopted in the dwyamushyayana form born after his adoption. a dwyamushyayana son means now a son adopted under an express agreement that he is to be the son of two fathers, i.e. he is to continue to be the son of his natural father while becoming also the son of his-adoptive father. there were formerly other ways in which a man might become the son of two fathers, but these are now obsolete : basappa v. gur-lingawa (1932) 35 bom. l.r. 75. a man adopted in this form belongs to both families. he inherits in both families and both families inherit to him. this is not disputed.2. on general principles it might.....
Judgment:

Broomfield, J.

1. The facts are given in the judgment of the trial Court. The only question argued in this appeal relates to the position in respect of inheritance of the sons of a man adopted in the dwyamushyayana form born after his adoption. A dwyamushyayana son means now a son adopted under an express agreement that he is to be the son of two fathers, i.e. he is to continue to be the son of his natural father while becoming also the son of his-adoptive father. There were formerly other ways in which a man might become the son of two fathers, but these are now obsolete : Basappa v. GUR-lingawa (1932) 35 Bom. L.R. 75. A man adopted in this form belongs to both families. He inherits in both families and both families inherit to him. This is not disputed.

2. On general principles it might seem that the sons of such a man would also belong to both families, for it is in accordance with Hindu sentiment- not by any means peculiar in this respect-that one of the advantages expected from having a son is that he in turn may have sons who will continue the family line. If the sons of a dwyamushyayana son do not belong to both families, it follows that he is not fully and completely the son of two fathers. He is either something less than an ordinary adopted son visa-vis his adoptive father, or something less than a natural son vis-a-vis his natural father as the case may be. However, it has not been argued before us that the sons of a dwyamushyayana belong, like their father, both to the adoptive family and to the natural family of the father. The argument for the appellant is that they revert to the natural family and inherit only in that. The argument for the respondents is that they belong to the adoptive family only, as would be the case with an ordinary adoption.

3. The learned trial Judge has found that the respondents, who are the sons of a man adopted in the dwyamushyayana form who predeceased his adoptive father, are the heirs of the latter, that is to say they rank as his grandsons and are preferential heirs to the opponent who is a brother's son. There is undoubtedly good support for this view. One of the most authoritative text-books on adoption is the Dattaka Mimansa. The dwyamushyayana form of adoption is 'dealt with in Section VI of this book, and Sutherland, a recognised authority on Hindu law, after translating the original work, has summarised the effect of it in a synopsis, the relevant passage in which is as follows :- (see Sutherland's Hindu Law of Adoption, page 154, and Stokes' Hindu Law, page 669) :-

The adopted son, who is son of two fathers, inherits the estate and performs the obsequies of both fathers, but, the relation of his issue (except in the case of the kritrima son, as usually affiliated in the Maithila country), obtains exclusively to the family of the adoptive father.

4. Against this Mr. Daitar, who appears for the appellant, relies on some observations in Shrimati Uma Deyi v. Gokoolanund Das Mahapatra , Their Lordships referred to a passage in Macnaghten's Principles and Precedents and cited him as stating that the consequences of a dwyamushyayana adoption are different from those of an ordinary adoption inasmuch as the children of the adopted sons would revert to their natural family. Their Lordships did not themselves lay down any such proposition and on reference to the passage referred to in Macnaghten, which is at p. 71, it is clear, as the learned trial Judge has pointed out, that Macnaghten when he spoke of the children reverting to the natural family was referring to what is called the anitya or incomplete form of dwyamushyayana adoption, which is now obsolete, and not to the son adopted under a special agreement. There is no reason to suppose that Macnaghten's view was any different from Sutherland's so far as the nitya or complete form of dwyamushyayana adoption is concerned.

5. Mr. Datar invited us to refer to the original passages in the Dattaka Mimansa and to hold that Sutherland and Macnaghten have misunderstood them. That in effect is what the argument comes to. The important passages are paras. 41 to 46 in Section VI, p. 85 in Sutherland's book, p. 610 in Stokes. We were also referred to para. 37 of Section II, of the Dattaka Chandrika, p. 646 in Stokes. But that corresponds to para, 42 in Section VI of the Dattaka Mimansa and does not, I think, carry the matter any further. There seem to be some differences in the citation of the original text, but where the works differ, it is settled that the Dattaka Mimansa is to be preferred.

6. To return to the latter work, para. 41 seems to be perfectly clear. It says that there are two descriptions of dwyamushyayana sons, those who are absolutely sons of two fathers and those who are incompletely so, the former being those who are given in adoption with the stipulation ' This is son of us two,' The following paragraphs are extremely obscure and it is very difficult to extract any intelligible meaning from them. The introduction to para. 42 and also Sutherland's marginal headings suggest that the object of them is to explain what is meant by saying that the dwyamushyayana son, whose double relationship depends not on an agreement but on the performance of certain ceremonies, is only incompletely the son of two fathers. The question of the issue of the dwyamushyayana son is referred to incidentally. The latter part of para. 42 shows that in some cases at any rate the connection with both families does not extend to the issue. Apparently Macnaghten's view that in the case of the anitya variety of dwyamushyayana adoptions the children revert to the natural family is based upon this passage. Mr. Datar may be right, I think, in his suggestion that in the cases referred to here the question whether the children belong to the adoptive family or the natural family may depend on whether certain ceremonies of the father have been performed in the adoptive family or the natural family. The respondents' father, I may mention, had already been married when he was adopted, so that all the ceremonies referred to in these paragraphs of the Dattaka Mimansa must have been performed when he was a member of his natural family. But we are concerned with the case of a nitya dwyamushyayana son whose double relationship depends on an express agreement, and in such a case, as I understand the matter, the question by whom the ceremonies were performed is irrelevant [vide Behari Lai v. Shib Lal (1904) I.L.R. 26 All. 472.

7. Paragraph 45 has been relied upon both by Mr. Datar and by Mr. Kane, but I doubt whether either of them has been able entirely to clear up the extreme obscurity of the wording. Sutherland's version, it must be admitted, is so literal that it is barely intelligible as English. On the face of it the issue of a dwyamushyayana son, whether nitya or anitya, and the issue of a son adopted in the ordinary form are placed on the same footing. If it stopped there, the matter would be simple. The issue of the adopted son would belong to the adoptive family only. But the reason given for placing the issue on the same footing in both cases, ' from the initiation taking place under the family name of the adopter in both instances', would seem to be irrelevant in the case of a nitya dwyamushyayana adoption and would not apply in the case of many adoptions of the anitya variety. As the whole of the preceding discussion from para. 42 onwards is concerned mainly with ceremonies and seems therefore to refer to the anitya dwyamushyayana adoption, I feel some doubt, speaking for myself, whether the word ' dwyamushyayana ' in para. 45, although it is unqualified, does not really- mean the anitya form only. If so, para. 45 would not really carry the matter much further.

8. All that I have said about this paragraph is on the assumption that Sutherland's translation is correct. Mr. Kane after referring to the original says that there is nothing about initiation and that the passage really means that the gotra and surname of the adopter determine the gotra and surname of the progeny of the adopted son in all cases. If that is the correct version, it may be said to support Sutherland's view in the synopsis which must, it, seems, be based upon this paragraph.

9. I leave to my learned brother the detailed examination of these authorities. In the present case we have not to decide whether the respondents are entitled to succeed in both families, but only whether they are entitled to sueceed in the adoptive family. I think the authority of Sutherland and Macnaghten and also of Mr. Justice Patkar in Basappa v. Gurlingawa supports the view taken by the trial Judge that the respondents are the grandsons of Narharrao and entitled to succeed to his property. I am not satisfied by the learned argument for the appellant that there is anything in the original texts or books which is really inconsistent with that view. I would therefore dismiss the appeal, and likewise the cross-objections as to costs, which I think have no substance, because the applicants had to prove their case anyhow and the order that the parties should bear their own costs is not unreasonable under the circumstances.

Wassoodew, J.

10. The dispute in this appeal relates to the succession to the estate of one Narharrao who died on March 5, 1937. He had adopted his brother's only son Gururao on July 20, 1917, in a form known as dwyamushyayana. Gururao died on October 15, 1929. Narharrao continued in possession of his estate, which is the subject-matter of the dispute in these proceedings.

11. The contest is between the sons of Gururao who were born after the adoption and Ganpatrao the son of another brother of Narharrao by name Shripatrao. The sons of Gururao applied in the Court below for a succession certificate to Narharrao's estate consisting ' inter alia' of a life insurance policy which he had assigned to Gururao in his lifetime and certain promissory notes. They maintained that they were the nearest sapindas of the deceased Narharrao by reason of the adoption of their father. The opponent, the son of Shripatrao, contended to the contrary. He maintained that the sons of Gururao, who was adopted in dwyamushyayana form, belong to the natural family of the adoptee and therefore cannot inherit in the family of the adopter of their father. It was further contended that the payments for the premium on the insurance policy and the advances on the properties were made out of the joint family funds, and that the question of the division of the proceeds was left open at the time of the general family partition which took place in 1922. The Court below has disallowed the contentions of the opponent and has granted a succession certificate to the sons of Gururao. Against that order Ganpatrao has filed this appeal.

12. Mr. Datar on behalf of the appellant has conceded that in the absence of evidence that the premium for the policy of insurance was paid out of the joint family funds prior to the partition of the family, he cannot support the alternative ground upon which the grant was opposed. But he maintains that the appellant is a nearer sapinda of the deceased Narharrao than the respondents, the sons of Gururao. The question decisive of the point is whether the sons of Gururao do not belong to the family of the adopter. If they do, there can be no question that they are entitled to succeed.

13. The question is not free from difficulty inasmuch as there is no direct authority on the point, and the texts bearing on the subject are somewhat obscure. The question is indeed of considerable importance from the point of view of those who resort to this form of adoption. Mr. Datar has prefaced his argument by saying that an adoption in dwyamushyayana form is recognizably of inferior efficacy than the ordinary or kevala adoption, for the adoptee is not altogether the son of the adopter and is not supposed to continue the adoptive father's line. He has relied upon certain observations by Macnaghten in his treatise on Hindu Law at p. 71, which have been quoted by their Lordships of the Privy Council in Shrimati Uma Deyi v. Gokoolanund Das Mothapatra . Those observations of Macnaghten are to the following effect (p. 71) :-

But there is a peculiar species of adoption termed dwyamushyayana, where the adopted son still continues a member of his own family, and partakes of the estate both of his natural and his adopting father, and so inheriting is liable for the debts of each. To this form of adoption the prohibition as to the gift of an only son does not apply. It may take place either by special agreement that the boy shall continue son of both fathers, when the son adopted! is termed nitya dwyamushyayana ; or otherwise, when the ceremony of tonsure may have been performed in his natural family, when he is designated anitya divyamushyayana ; and in this latter case, the connexion between the adopting and the adopted parties endures only during the life-time of the adopted. His children revert to their natural family.

14. Their Lordships of the Privy Council were not directly concerned with the correctness of these observations, for they were not dealing with the question of the succession of the descendants of the dwyamushyayana to the inheritance of the adopter. They were directly concerned with the question as to whether the omission to take in adoption a brother's son was an objection which at law could invalidate the adoption which was otherwise regularly made. From the point of actual decision that case does not support the view that the children born to the dwyamushyayana revert to the natural family.

15. There are certain observations in Strange's Hindu Law (Vol. I, pp. 100,. 101) which though not referred to in argument may suggest that under certain circumstances the adoption continues during the life of the adopted and his son, if he has one, returns to the family of the father. This is what he says :-

According as this double filial connexion is consequential, or the result of agreement, the adopted is nitya, or a-nitya, a complete, or incomplete Dwyamushyayana ; though, by some, this distinction is made to depend upon the adoption taking place before, or after the performance of tonsure, in the family of the adopted ; the effect, in the latter case, where the adopted is from a different tribe, (gotra), being that the adoption, so far from being permanent from generation to generation, continues during the life of the adopted only ; his son, if he have one, returning to the natural family of his father ... But a Hindu adoption is permanent, unless in the instance that has been alluded to of an a-nitya Dwyamushyayana.

16. With great respect to the learned author there is some misconception in the classification of 'dwyamushyayana'. The author has explained in the preceding paragraph what he means by the expression ' the double filial connexion is consequential' and he applies the term 'nitya' to such a connection. The term ' nitya ' has always been applied by the text writers to an adoption by stipulation. That is also Sutherland's view in the Synopsis. If the term ' nitya ' was by mistake used to denote the anitya adoption as is generally understood, the observations are easily understandable. In Vol. II, p. 122, in reference to the ' anitya ' adoption, the author says that where the investiture with the thread precedes the adoption, then the son of the person adopted would revert to the natural family of the adopted. That is not the case here for we are dealing with an adoption by stipulation.

17. I may refer to the following remarks in West and Buhler's Hindu Law (Fourth Edition, p. 810) as to the consequences of adoption. The authors are apparently dealing with the irregular adoption :-

The son of such an adopted son belongs, Colebrooke says, to the family in. which the ' dwyarnushyayana received his investiture of the sacred thread. In the Bom-bay Presidency the ' dwyamushyayana' celebrates the ' sraddhas' of both fathers, but his son, it seems, those of the grandfather,by adoption only, not of his natural grandfather. Whether any right of inheritance to the latter passes to him on his father's predecease has not been decided ...

He receives his own investiture in that family. Any adoption after investiture is an irregularity which causes the son of the person thus adopted to return to his father's ' gotra', if different from that of his adoptive family. Such an irregularly adopted son is called ' anityadatta'. Ibid. The adoption would probably not be recognized in Bombay.

18. Mr. Datar, while admitting that anitya dwyamushyayana as a mode of adoption is extinct, maintains that in fixing the rules of devolution of the estate of the adopter on the descendants of the adopted son the ' Rishis' drew a distinction between a ' kshetraja' and other sons, and they described the former as (I) and the others (I) and they excluded the progeny of the latter from inheritance to the estate of the adopter. Mr. Datar has relied on placita 41 to 45, section VI, of Dattaka Mimansa, and p'lacitum 37, section II, of Dattaka Chandrika. Placitum 41 merely enumerates and explains the twoi descriptions of ' dwyamushyayanas'. It says :-

Accordingly sons given and the rest (who are sons of two fathers) are of two descriptions : Those absolutely sons (I) of two fathers (nitya dwayamu-shyayatws), and those incompletely so (anitya dwayamushyayanas) (I). Of these, those are named absolute ' dwayamushyayanas' who are given) in adoption with this stipulation,-'this is son of us two' (the natural father and adopter)....

19. That is the only recognized form of dwyamushyayana adoption in this Presidency [see Basava v. Lingangauda (1894) I.L.R. 19 Bom. 428, and also the observations in Shrimati Uma Deyi v. Gokoolanund Das Mahapatra].

20. The anilya dwyamushyayana is now obsolete and placitum 41 proceeds to describe the form in which that adoption could take place :-

The incomplete ' dwayamushyayana' are those who are initiated by their natural father, in ceremonies ending with that of tonsure (I),and by the adoptive father in those commencing with the investiture of the characteristic thread (I) since they are initiated under the family names of both even, they are sons of two fathers but incompletely so. Should a child directly on being born be adopted, as his initiation under both family names would be wanting, he would partake only of the family of the adopter.

21. These intricacies need not be considered, in my opinion, in the present case, for here the adoption has taken place after marriage, that is, after the investiture and the necessary ' sanskaras ', and with a stipulation attending the ' dattaka' ceremony. Moreover as the ' gotras' are common there can be no question of the offspring reverting to the ' gotra' of the natural father. If the adopted was the son of both parents, logically] it would seem that his children would partake of the common heritages.

22. Mr. Datar argues that that cannot be so, for the texts exclude them from succession to the adopter. He concedes that the only form of dwyamush-yayana now recognized is nitya, that is, the one in which a stipulation is made as aforesaid, and that the efficacy of the nitya dwyamushyayana would depend upon the stipulation entered into at the time of his adoption and not upon the performance of the initiatory ceremonies such as (I) (chuda) and upanayana as in the case of incomplete or anitya dwyamushyayana. But Mr. Datar's contention is as stated above that for the purpose of determining the gotra of the sons of dwyamushyayanas the texts divide ' dwyamushya-yanas ' under two heads again ' nitya ' and ' anitya ' but with a different connotation. He says that under the head ' nitya ' they include the ' kshe-trajas ' only and ' anitya ', the rest implying all the other kinds of sons including the person given with a stipulation (I)' of the sons given ' and the rest. He relies on placitum 42 which quotes a passage by Satyashadha and the explanation of that passage by Sabaraswami :-

(I)

23. Sutherland's rendering of that passage is as follows (see Stokes' Hindu Law, Dattaka Mimansa, Section VI, placitum 42, page 611)) :-

Intending all this, Satyashadha says,-' of absolute dwyamushyayanas of both, etc' By this compendious rule, having declared the connection of absolute dwyamushyayanas to the patriarchal saints in both families, the author by another aphorism commencing,-' Of sons given and the rest like the dwyamushayana, etc' (I) ordains the same connection with respect to those incompletely dwyamushyayanas. Now this is thua explained by Sabaraswami, ' Treating on dwyamushyayanas, the author mentions those incompletely so, 'Of sons given, etc' (I), Unto those only not to issue beyond (does the connection to both families extend). By the first only the initiatory rites (ending with tonsure are performed). If by the adopter (the family of the adopted) is that of the latter : on account of priority. From this alone (the same is the case) in respect to a descendant beyond. So also those, who are affiliated by a descendant of the same general family, (as for instance a nephew, by an uncle) are of the adopter's family only.

24. As I understand Nanda Pandita, the reference to the texts of Satyashadha and Sabaraswami is merely to explain the classification of ' dwyamushyayanas ' in placitum 41. Mr. Datar says that the words ' unto those only not to issue beyond, does the connection to both families extend (I) by necessary implication exclude from succession to the adopter the issue of ' anitya dwyamushyayana ' and he further says that the present is a case of ' anitya dwyamushyayana '. Unless he is able to show that the issue of a ' dwyamushyayana' by stipulation is included in the exclusory text, it is difficult to accept his view; for, those words expressly refer to ' anitya dwyamushyayana ' which expression according to the author means adoption other than by stipulation (see placitum 41).

25. In support of his argument that under the head of (I) 'dwyamushyayana ' would come the person adopted with a stipulation Mr. Datar has referred us to the words (I) and (I) in placitum 41 which he says on account of the suffix are different in their connotation from that adopted by the sages in placitum 42 when using the terms (I) and (I) without a suffix. He has relied upon the following passage in placitum 37 of Section II of the Dattaka Chandrika (see Stokes' Hindu Law, page 646) to illustrate his meaning :-

Accordingly Satyashadha by the compendious rule, ' of absolute dwyamushya-yanas pf both, etc.'-having propounded a relation to both families (including the patriarchal saints) of absolute dwyamushyayanas, who are sons of the soil, applies by analogy, the rule regarding these (to sons given and the rest)', by another aphorism commencing,-' of sons given and the rest, like the dwyamushyayana, etc.'--and this is explained by the commentator :-' Treating on absolute dwyamushyayanas, the author mentions those incompletely so,-Of sons given and the rest, etc. unto these only, not to issue beyond (does the connection to both families extend). If the initiatory rites are performed by the first only (the family is his :) but it by the adopter, that of the latter on account of priority. Through him only in the case of descendants beyond' (the family is determined).

26. According to Mr. Datar that is the interpretation which the author of Dattaka Chandrika has placed on the aphorism of Satyashadha and the gloss of Sabaraswami quoted in placitum 42 of Dattaka Mimansa, and that only the ' kshetraja ' son could be described as ' nitya ' and that the exclusory text applies to the offspring of the ' anitya dwyamushyayana', that is, those sons who are not kshetrajas, or in other words, sons who are dwyamushyayanas with stipulation and others. It is difficult to qualify the text of Dattaka Mimansa by reference to the corresponding text in Dattaka Chandrika, for the former is of great authority while the latter is not [see Puttu Lai v. Parbati Kunwar (1915) L.R. 42 I.A. 155, 161, s.c. 17 Bom. L.R. 549.]

27. It is however interesting to note how the author of the Dattaka Mimansa explains the exclusory provisions in the later verses. Nanda Pandita in placita 43 and 44 gives his own exposition of the meaning of the passages (in placitum 42). After explaining how the 'dwyamushyayana' is connected with the two families, he says as follows (placitum 43) :-

The meaning of this explanatory passage is this :-He only is connected to both families, who has been initiated under both family names ; not descendants beyond.

28. It might be understood from those words, without reference to what follows, that the issues of a ' dwyamushyayana ' do not belong to two families as their father. And Mr. Datar relies upon those words to suggest that if they cannot belong to both, they must retain the natural ' gotra ', i.e. they must belong to the natural family of their father. But that rule can have no application to the circumstances of the adoption in the present case.

29. Placitum 44 has no direct bearing on the question as to the issues of the adopted, but it seems to me that placitum 45 is important. The author has laid down there the general rule for finding out the ' gotra ' of the offspring of the person adopted either in the ' dwyamushyayana ' or the ' kevala' form. Undoubtedly, the translation in Sutherland is somewhat obscure, if I may say so with respect. But in his summary of Section VI (at p. 669, Stokes) he says as follows :-

The adopted mm, who is son of two fathers, inherits the estate and performs the obsequies of both fathers. But the relation of his issue (except in the case of the ' kritrima' son, as usually affiliated in the Maithila country) obtains exclusively to the family; of the adoptive father.

30. That view, in my opinion, is directly based upon his interpretation of placita 45 and 46 of the Dattaka Mimansa (Section VI).

31. We have been supplied with a translation by Mr. Kane who appears on behalf of the respondents which attempts to remove some of the obscurities in Sutherland's translation. Mr. Kane's translation is as follows :-

The author (Sabaraswami) declares the family ('gotra') required1 to be known in the instance of the issue (I) of the dwyamushyayana and that of the adopted son (I) from him alone (I).

32. The words (I) have been translated by Sutherland as ' absolutely adopted son '. That gives rise to the question whether placitum 45 is dealing both with the issue of ' nitya dwyamushyayana' and ' anitya dwyamushyayana' and also of the 'kevala' adoption. It is not quite clear why the author should have digressed from a discussion of the ' dwyamushyayana ' form of adoption by referring to the ' kevala ' form. The rule in that placitum might have been easy of application to the offspring of both (I) and (I) ' dwyamushyayana', but for the difficulty created by the word (I) which literally means ' from that alone', which may signify, ' from the fact of the initiatory ceremony' (see use of similar word in placitum 42). Mr. Kane says that the word means 'from him alone' that is from the gotra of the adopter alone (I); and he says that view is supported by the words that follow :-

This means that the 'gotra' of the progeny (I) beyond the adopted son in both cases also (I) is known from the gotra of the adopter only.

33. Mr. Kane lays emphasis on the word (I) meaning the issue of the ' dwyamushyayana ' and that of the ' dattaka ', as explained by the words (I) Mr. Kane says it is unnecessary to consider Mr. Datar's rendering of the word (I) in the consideration of the present case in view of the latter part of placita 45 and 46. That is consistent with the view which Sutherland seems to have taken of Section VI in his Synopsis. Sutherland's translation of placitum 46 is as follows :-

The author alludes to the adoption of one belonging to the same general family, -'so also and'etc' That is,-if the natural and adoptive fathers belong even to the same general family, the distinctive appellations are fixed by the adopter only for the adoption, and initiation are performed by him.

34. Mr. Kane has explained that placitum thus :-

The author (Sabaraswarni) speaks of the adoption of one belonging to the same gotra in the words ' similarly etc' This means that even when the natural father and the adoptive father have the .same gotra, the progeny of the adopted boy is designated (I) after the adopter alone, since it is he who performs the sacrament of adoption.

35. The word (I) bears out what Mr. Kane has said in regard to the progeny of the adopted son.

36. The serious difficulty presented by the texts and the obscure language in which the rule is laid down cannot be lightly brushed aside. But even if the expression (I) has the significance which Mr. Datar attaches to it, the question of the initiatory ceremonies does not arise in this case because the adoption has taken place with an express stipulation that the adopted shall be the son of the two and is in the ' nitya ' form and because the ' gotra ' of both parents is common. There is also a good deal of force in the argument that the rules as to the discovery of the ' gotra ' of the offspring of the adopted being an exception to the general rule that upon adoption there is an extinction of all connection with the natural family, the exception should be limited to the express words used. Upon that ground Mr. Kane has suggested, and I agree with him, that apart from the possible interpretation of placitum 42 it should be read subject to the author's own definition of (I) and the direction in placitum 45. It is difficult to see why there is no express rule governing the succession of the issue to the natural family of the adopted boy. The texts merely deal with his succession to the adopter's family. It is difficult to explain that omission. That may be due to the fact that the essential feature of ' dwyamushyayana ' adoption is that the adopted person's status in the natural family is retained. If he belonged to both families, and the stipulation was intended to perpetuate the line in the natural family, the ' Rishis' perhaps assumed that the tie in the natural family continued not only for the personal benefit of the adopted but also for his descendants. They therefore took pains to determine the rule of succession in regard to the family of the adopter. That is perhaps an explanation why a special rule has been framed with regard to the succession to the adopter. A simple and logical rule would have been that as the ' dwyamushyayana ' is the son of both parents his children are the descendants of both the families. But that simple rule has not been adopted in an attempt to evolve a rule for determining the 'gotra' of the descendants. And as we are not called upon to determine whether the respondents can claim to be the descendants of the adopted son in his natural family, the point need not be decided. It seems to me that in view of the directions in placitum 45 it is very probable that the ' Rishis ' intended that the offspring of a (I) ' dwyamushyayana ' must participate in the inheritance of the adopter, the propositus Narharrao in this case. On that ground it seems to me that the respondents were rightly given the succession certificate. Consequently I agree with the order proposed by my learned brother.


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