1. This is an appeal against the judgment in O.S. 21 of 1946-47 on the file of the Subordinate Judge, Shimoga, dismissing the plaintiff-appellant's suit for declaration that the plaintiff is the owner of the plaint schedule properties and that the defendant is not the adopted son of her deceased father.
2. The properties in dispute are, according to the plaint, ancestral properties of plaintiff Rudramma's father Shivappa Gowda. He and his wife Basamma took Rudrappa in adoption, but he predeceased Shivappa Gowda who thereon took Isvarappa in adoption. The latter survived Shivappa Gowda, but died issueless soon after his father's death. Basamma, widow of Shivappa Gowda, is stated to have taken Errappa the defendant in adoption and it is the truth and validity of this adoption that the plaintiff disputes. The defendant-respondent has asserted that he is the adopted son of Isvarappa (sic) and that he is the owner of the properties in dispute and pleaded that the suit for declaration of plaintiff's title is bad as plaintiff is not in possession of the properties and has not filed the suit for possession of the same.
3. There is hardly any doubt that Basamma took the defendant is adoption. The adoption is evidenced by a registered document and the writer and attestors have sworn that the adoption ceremony took place. There is no reason to doubt their evidence. Apart from the presumption under Section 9(1), Hindu Law Womens's Rights Act (X (10) of 1933) that the widow had the authority of her husband to take the boy in adoption, it is likely that he authorised her to take in adoption a third boy as Rudrappa the first adopted son had died and the second adopted son who was sickly was expected to share the same fate. There is, therefor,e sufficient material for upholding the decision of the lower Court that the widow had authority of the husband to adopt. The next point that arises for consideration is whether there is any property of Shivappa Gowda to which his adopted son can lay claim. Isvarappa, the adopted son of Shivappa Gowda, survived the latter and thus became entitled to the entire estate of the joint family, after the death of his father. After Isvarappa's death his mother Basamma inherited them. Basamma took the defendant in adoption to her husband and the point for consideration is whether the adoption divests the estate vested in the heir of the last surviving coparcener.
4. It was held by the Full Bench decision of this High Court reported in Chikkavva v. Chikkappa 54 Mys. H.C.R. 12, following the Privy Council decision reported in Anant Bhikkappa v. Shankar Ramchandra :
'That, where, after the death of the last surviving coparcener in a joint Hindu family, the family property passes by inheritance to his heir and subsequently the widow of a predeceased coparcener makes ad adoption in pursuance of an authority to adopt given to her by her husband, the adoption dates back to the death of the adoptive father and will have the effect of divesting the estate in the heir of the last surviving coparcener or any persons claiming through such heir and vesting the property in the adopted son subject to lawful alienation made in the meantime by the person who was entitled to hold the estate until the adoption.'
This divesting of the estate by adoption is in effect recognized in Act X(10) of 1933, Section 9(2)(a) by making an exception which prove the rule, that an adoption has got the effect of divesting estate vested in the heir of the last surviving coparcener. After the death of Shivappa Gowda, the property belonged to the sole-surviving coparcener, Isvarappa his adopted son. On the death of Isvarappa, his adopted son, leaving no wife or children, his mother inherited the estate as his heir and the property became her Stridhana property, as Stridhana includes according to Section 19(g) of Act X(10) of 1933.
'Property taken by inheritance by a female from her husband or son.....except when there is a daughter or daughter's son of the propositus alive at the time the property is so inherited'.
The adoption made by her would have divested her of the estate vested in her as the heir of her son Isvarappa, but for the fact that he died leaving no children and under Section 10(g) of Act X(10) of 1933 it became her Stridhana property which an adoption cannot divest as stated in Section 9(2)(a) of Act X(10) of 1933. To such a case the ruling of the Full Bench is not applicable, the effect of the Special enactment being to make it an exception to the general rule Section 12(1) of Act X(10) of 1933 makes the 'children male and female' heirs to their mother's properties and the plaintiff who is the daughter of Basamma would have been a heir to her estate after her death. It is, however, contended that the defendant became the owner of Basamma's properties before her death under the document evidencing his adoption.
5. As regards the contention that a woman can take a child in adoption to herself so as to convey her properties to him as distinguished from an adoption to her self and her deceased husband, it has to be stated that no such adoption is recognised in Hindu law. The adoption of plaintiff in a case reported in 22 Mys. C.C.R. 194 was held to be invalid.
'on the ground that the person who made it was a female who had not been proved to be competent either by law or custom to make a valid adoption.'
That was the case of an old prostitute taking a girl in adoption. There is hardly any doubt that Hindu law does not conceive of an adoption to a woman. Why the idea of adopting children was conceived in ancient India throws a flood of light on the point. ^^uk iq=L; yksdksfLr** i.e., there is no place for a man without a son is the saying in Aitereya Brahmana VII 3. 1, ^^iztkrarqek O;oPNsRlh%** i.e., do not break the thread of progeny, was the injunction given in Taitherea Upanishad to students after they competed their studies. The reason that according to ancient Hindu conception a man is born with three debts and these debts must be discharged by him ^^czEgp;sZ.k _f'kH;% ;Ksu nsosH;% izt;kfir`H;%**Taittareya Sametita v. 3. 10 5. The debt due to the sages is discharged by studying Veda as a Brahmachari, the debt due to the Gods is discharged by sacrifices and the debt due to man by the birth of a son. A man who has no sons has to suffer in a hell called 'Put' and a son is called 'Putra as he delivers him from, that hell. ^^iqUukks ujdk|Lek=k;rs firja lqr%** is authority of Manu on the point (IX-133). This explains the anxiety of the Hindu to have a son. Though according to the general rule the offering of funeral cake and inheriting the estate go together (Manu IX, 142) ^^xks= fjDFkkuqx% fi.M%** the sons hold offer the funeral cake to the father even though he gets no property of his. ^^iq=% fir`fokkykesfi fiaMa n|kr**is this saying in Vishnu XV. 43. Hence men who had no children of their own had to think of adopting methods of acquiring sons. Those who had daughters and no sons gave them in marriage on a condition of begetting sons for them. As stated in Manu IX. 127,
^^viq=ksusu fof/kuk lqrka dqohZr iqf=dke ;niR;aHkosnL;ka rUeeL;kRLo/kkdje**
A man who has not sons may in this way appoint his daughter to beget a son for him stating that the on born to her should be his son for purposes of performance of his obsequies. Manu says that Daksha himself appointed his daughters to raise up sons for him. Manu and other authorities make it clear that a daughters's son of this kind cannot claim the family name and estate of his natural father. The grandfather becomes him father and it is to him that he has to offer the funeral cake and inherit the estate : ^^n|kfRi.Ma gjs/nue** 'Manu IX, 136) A man who had no sons or daughters could appoint his wife to beget to his younger brother, a son for him and this method of getting sons was called Niyoga. Even a son less widow could beget a child to her husband's brother for her husband. There is a reference to this in the Rigveda passage : ^^dks oka 'k;q=k fo/koso nsoje**10 M. 40, Section 2. The son so born entitled to inherit the property of the husband of his mother like his own son as recognised by Manu in IX 145 : ^^gjsk= fu;qk;ka tkr%** There next verse refers to a son born to a widow by this method, being entitled to get the entire property of her husband. The chief point that has to be stressed is that the son was regarded virtually as the son of his mother's husband and not as the son of his natural father and he had to offer funeral cake to the former and take his estate.
6. Twelve kinds of sons including a son born to the parents were recognized. The adopted son was the eighth and he belongs to him to whom his parents give : ^^nk% k'Ve%] lp ekrk fir`H;ka ;Llnk%** as stated in Vishnu XV, 18-19. The Niyoga was condemned even prior to Christian Era and Janaka is said to have discouraged it. As stated by Bruhaspati : ^^mks fu;ksxh euquk fuf'k/n% Lo;esorq** Manu who refers to Niyoga has himself condemned it. The practice was discouraged by a number of restrictions and later on it was totally condemned in Kaliyuga. Adoption survived but the point that has an important bearing is that in all cases of substituted sons, they wee as shown above, regarded as the sons of the men to whom they were given in adoption.
7. From the very conception of adoption as known to Hindu law., it is only to a man and his properties that a boy can be adopted. Adoption to a woman so as to enable the adopted son to inherit her stridhana properties is unknown to Hindu law. An unmarried woman cannot adopt at all. If a married woman or a widow can under certain restrictions take a boy in adoption, it is to her husband that the she can do so and not to herself.
8. The restrictions imposed on women adopting a son even to their husbands also make it clear that the idea of women taking a son in adoption to herself could never have been conceived. Examination of the original texts may not be necessary in this case as that point does not directly arises for consideration in this case and it would be sufficient to give an extract of the opinion expressed by Westropp C.J. in Narayan Babaji v. Nan Manohar, 7 Bom. H.C.R. 153 in which the authorities on the point have been considered :
'Recapitulating the Hindu authorities in highest repute here as to adoption by a wife. WE find Manu and the Mitashara silent as to adoption by any woman; Vasistha allowing adoption by a woman with the consent of her husband; Devanda Bhatta, reciting the text of Vasistha, and if our opinion be rights leaving that text uncontroverted and unexplained so far as it relates to a taking in adoption by a woman; Nanda Pandita reciting the same text, and admitting that a wife may, with the assent of her husband, adopt, but denying that widow can adopt at all, because she cannot, as he says, obtain the consent of her husband; and Nilakantha whose authority, amongst those who have actually written on the point stands highest here, also reciting the text of Vasistha, and requiring the order of command of the husband to the wife, but dispensing with it in the case of the widow, and substituting for it the consent of kinsmen.'
9. Mayne in his treatise on Hindu law and Usage has stated:
'It is hardly necessary to say that, as under the Hindu law, an adoption by a widow must always be to her husband and for his benefit; an adoption made by her to herself alone would not give the adopted child any right even after her death, to property inherited by her from her husband. Nor, indeed, to her own property, however, acquired, such an adoption being nowhere recognised as creating any new status, except in Mithila under Kritrima system, and apparently in Pondicherry.'
The above observation was relied on in 15 Mys. C.C.R. 83, and it was held that adoption by a step-mother is invalid. In 16 Mys. C.C.R. 159 it was held that
'According to the law of adoption prevailing in Southern India, married woman who has a husband alive is not competent to take a son in adoption to herself. Such an adoption, except where the Kritrima form is allowed, is wholly void.'
In that case the following observations were made:
'It is nowhere alleged in the written statement that the adoption was made by or to any one but the plaintiff herself. And even at the hearing of the second appeal before us, the case for the respondent-defendant was stated definitely to be that the adoption was the act of the plaintiff and not of her husband. There is no pretence that the adoption of the minor defendant (assuming it to be a fact) was in the Kritrima form, which requires, among other things, that the adoptee should be of an age to give his consent and which form moreover is at present obsolete except in Mithila. The parties here are Sivachars, bound by the ordinary law of adoption prevailing in Southern India, according to which it is not competent to a married woman who has a husband alive to take a son in adoption to herself. Such an adoption, except where the Kritrima form is allowed, would be wholly void.'
The contention, therefore that the defendant may be regarded as the son of Basamma and that be is entitled to her properties after here death cannot be accepted.
10. The deed executed by Basamma in favour of the defendant, however, not only recognizes that the was taken in adoption but also conveys to him all the right she had in the plaint schedule properties. The plaintiff cannot be said to have therefore any right to the plaint schedule properties after the death of her mother Basamma as the latter had conveyed to defendant whatever right she had in them during her life time. Then again plaintiff was a party to the suit in OS. 121 of 43-44 on the file of the Munsiff, Sagar. That was a suit filed by Gowramma widow of Rudrappa the first adopted son of Basamma and their daughter Chitra. Plaintiff only claimed a right to the properties gifted to her by her father and did not raise any claim to the plaint schedule properties. The disputes between the parties were settled by a compromise to which the plaintiff is a party. Under these circumstances, it cannot be said that the plaintiff can re-agitate the matter again in this suit.
11. The last point for consideration is whether plaintiff who has filed this suit for declaration to title is in possession of the property. The evidence of plaintiff alone shows that one Somappa Gowda is in possession of the suit property and he has not given possession of the same to her inspite of her having pressed him to do so. It was however urged that when the property is in the possession of a third party a suit for mere declaration is sufficient. It is stated in the plaint that:
'Somappa Gowda with the evil intention of creating rights in the schedule properties.....and to disturb the right and title of the illiterate and innocent plaintiff in the schedule properties has got up an adoption deed in favour of the defendant.'
It is clear therefore that Somappa Gowda is in possession of the property on behalf of defendant whose right he is setting up and his possession is hostile to the claim of the plaintiff.
12. It is no doubt true that when the property in dispute is in the possession of a third party suits can in some cases be filed for mere decide ration of title but they are all cases in which the third party who is in possession is in possession of the property on behalf of real owner so that it could be said in cases in which plaintiff establishes his title, the person in possession has been in possession on his behalf. The fats of the case reported in 16 Mys. C.C.R. 60 and 7 Mys. L.J. 43 disclose that they are cases for declaration of title to money deposited in Savings Banks. It was observed in 7 Mys. L.J. 43 that:
'Where however the property in suit is in the custody of a third party, for example, a civil Court or the Court of Wards, and such third party merely holds the property as a trustee for the rightful owner, a person claiming to be the owner of such property may be entitled to maintain a suit for a bare declaration that he is the owner of such a property. In the present suit the Treasury Officer holding the Saving Bank deposit is not a party. The suit is between two rival claimants each asserting that he is the owner entitled to the money in question. The Savings Bank merely holds the money to the credit of the rightful owner.'
Similarly in Harikisen Das v. Mt. Sundra Bibi, A.I.R. (13) 1926 Oudh 43 : (89 I.C. 424), it was observed as follows:
'Where a certain property is in the custody of the Court which holds it not in its own right but in the right of the rightful owner a person claiming to be the owner of the property is entitled to maintain a suit for a declaration that he is the owner of the property.'
The case reported in Vedanayaya Mudaliar v. Vedammal, 27 Mad. 591, refers also to a case in which the property in dispute was in possession of a Court on behalf of rightful owner. In the case reported in Jagnnath Gir v. Triguna Nand, 37 ALL. 185: (A.I.R. (2) 1915 ALL. 104), the property was in the possession of Court of Wards. In all such case, suits for declaration of title alone can be filed as it can be stated that the person in possession of the property in dispute is in possession on behalf of plaintiff in cases in which he is able to establish his title. In this case, however, Somappa Gowda is in possession recognizing the title of defendant and on his behalf. His attitude to plaintiff is one of hostility. The plaintiff in such cases cannot file a suit for declaration of title without at the same time praying for possession of the property. In the case reported in 40 Mys. H.C.R. 277 the suit against Government was dismissed and the suit against the remaining defendant for mere declaration of title was held to be not maintainable, as the Government which had to be deemed a third party was in possession of the property recognizing the title of defendant and as it could not be said that the Government was in possession for plaintiff even iff he established his title.
13. In this case, plaintiff is not in possession of the property and Somappa Gowda is in possession of it on behalf of defendant. The suit for declaration of title without praying for possession is not maintainable. The suit was rightly dismissed and this appeal stands dismissed with costs. (Advocate's fees Rs. 50).
14. Appeal dismissed.