(1) This appeal arises out of a suit filed byte plaintiff to recover form these defendant the suit properties as full owner or, in these alternative, to recover his one half share therein there in by partition. The relation of the parties will appear form the pedigree table given at a page 2 of the print book, which is as follows:--
DHARAMAGOUDA________________________________________| | |Malgounda Annappa Sugumappa| Jakagouda Malgounda Kalagounda= Gangabai (Propostitus)| Kalagounda (plaintiff ) Annagounda (Defendant )
The dispute in appeal relates to properties left by the deceased Kalagounda Sugunappa who died on 14th January 1946, his wife having predeceased him. The suit properties are patilki watan lands. The plaintiff alleges that he is the heir to the deceased Kalagounda and that the defendant claiming to be adopted son of Malagounda recovered possession of the suit properties in the year 1949 from the Revenue Officer.
The plaintiff also alleged that the defendant is not validly adopted son of Malagounda and that even it is proved that he has been so validly adopted , the plaintiff and the defendant would together inherit the property left by the defendant deceased Kalagounda. On these allegations he claimed the suit properties in the first instance, as the nearer heir and secondly on the ground that, at any rate both the plaintiff and the defendant would become the nearer heirs to Kalagounda and they will be entitled to the properties. On these allegations he claimed the suit properties. In the first instance, as the never heirs and secondly on the ground that, at any rate both the plaintiff and the defendant would become the nearer heirs to Kalagounda and they will be entitled to the property in equal shares.
(2) The defendant contested the plaintiff 's claim and contended that out of three sons of Dharmagouda, Annappa (Defendant 's grand -father) and Surgappa (father of Kalagounda) were full brothers and Malagounda i.e., the grand father of the plaintiff was their step-brother and therefore these plaintiff and the defendant being of the same degree and of the same class and he being of the same of the full blood is entitled to succeed to the exclusion of the plaintiff who is of the half blood. He raised a few other contentions which are not material for the purpose of this appeal because the case was fought out in the Courts below on the legal basis only.
(3) At the trial, both the parties passed as Pursis Ext. 35 where by they conceded certain positions as to facts and they claimed the trial of the suit on the basis of law only viz, whether the defendant is entitled to succeeded to the property of the deceased Kalagounda to the exclusion of the plaintiff on the basis that a person of the full blood excludes a person of the half- blood, both being of the same class and in the same degree of relation ship the original propostius.
(4) On these pleadings, the trial Court raised five issues, the material issue on this aspect of the case being issue No. 3 viz. 'Does plaintiff prove that he is the nearest heir to the said Kalagounda. The learned trial judge recorded a finding that the plaintiff is not the nearer heir but held 'that the natural justice of the case favours equality of division as both the parties distantly stand in the same degree to the propostius.' On this basis, he decreed the plaintiff 's suit declaring that he is entitled to a half share in the suit properties.
(5) Against this decree , the defendant preferred an appeal in the Court of the Second Extra Assistant Judge, Belgaum being Civil Appeal , No. 329/54 and the learned Assistant Judge took the view that the defendant is entitled to succeed to the properties of Kalagounda to the exclusion officers the plaintiff. As a result of his finding, he reversed the decree of the trial Court and dismissed the plaintiff 's suit. It is against this decree that the present second appeal has been preferred by the plaintiff.
(6) It should be noted that when inheritance to the property of Kalagounda opened in the year 1946 the defendant was already adopted. Therefore the only persons who could inherit or success to the property of the deceased Kalagounda was the plaintiff and the defendant.
(7) In this appeal, the learned counsel for the appellant has raised two contentions. The first is that in case of succession, the principle that persons of the full blood succeed before those of the half blood succeed before those of the half blood should be confined only to the case of brother and his son and should not be extended to other cases such as 'sapindas'. The second contention is that if propinquity on the basis of blood relation ship is to be criterion to inherit the properties of a collateral, then the defendant being an adopted son would have no such nearness of blood and cannot be preferred to the plaintiff.
Now, in support of the first contention viz., that the principle that a person of the whole blood excludes a person of the half blood should not be extended beyond the case of a brother and his son the learned counsel for the appellant has strongly relied upon the Full Bench decision of the High Court of Bombay reported in AIR 1927 Bom 97, Shankar Baji v. Kashinath Ganesh, which states that
'that distinction between the whole blood and the half blood observed in the case of brothers and their sons according to Hindu Law does not extend to the uncles of the deceased that is , the son of his grand father in the Bombay presidency.' No doubt, the said decision supports the contention of the appellant. But we will have to examine whether the decision as that stands now is a correct decision in the view of the subsequent decision s of ht Privy Council. The point that arose in the Full Bench case was as to whether the uncle of the whole blood would exclude the uncle half blood. The same point arose in the said High Court in an earlier case reported in ILR 24 Bom 317, Vithalrao Krishna v. Ramrao Krishna.
The reason for referring this case to the Full Bench seem s to be that subsequent to the case reported in ILR 24 Bom 317, a similar question came up to decided by the Privy Council reported in 42 Ind App 177: (AIR 1915 PC 81), Ganga Shai v. Kesri. In that case the reported in ILR 24 Bom 317 was referred to in their arguments by the counsel but in the body to the judgment specifically there is no reference the Bombay High Court felt a doubt as to whether the decision in ILR 24 Bom 317 was not still a good law. In the Full Bench case, the main Judgment was delivered by Mr. Justice Shah and the learned Judge, in the course of his Judgment stated:---
'Their Lordships did not state whether in the case of got raja sapindas of the half blood and whole blood of equal degrees the view taken by this Court was or was not correct according to the true reading of the Mitakshara and the Vyavahara Mayukha which would be the prevailing authorities in this Presidency on questions of Hindu Law. As that case is not referred to in the judgment and that was not the point before their Lordships, it seems to me that we cannot allow the appellant's contention that that view is distressed form or over-ruled by their Lordships of the Privy Council.'
Now, this statement, to the extent it goes is correct viz., that no reference has been made to this decision in terms in the body of the judgment. But their Lord ships had before them the rival views expressed by the authorities one of which was the decision reported in ILR 24 Bom 317. In that case, it appears there was a competition between the paternal uncle of the half --blood and the sons of an uncle of the whole blood. While considering this question this is what their Lordships have stated at p.184 (of Ind App): (at p.83 of AIR):
'..... and the main contention advanced on their behalf is that although the Mitakshara expressly provides for the succession of the half-brother in preference to nephews of the whole blood, there is no such provision in respect of uncles; and further that as it provides for the succession of the grand mother on failure of the father and his descendants, it must follow that by the words 'the uncles and their sons' Vijnaneswara meant that uncles of the whole blood and their sons should succeed in preference to the issue of another wife of the paternal grandfather. This argument in their Lordships opinion would apply with equal force to the case of half -blood come before nephews of the whole blood and in principle they see no reason to differentiate between the brothers of the propositus and the brothers of his father. Having regard to the general scheme of the Mitakshara, their lordships think that the preference of the whole blood to the half-blood is confined to members of the same class, or to use the language of the judges of the High Court in Suba Singh v. Surfaraz Kunwar, ILR 19 All 215, to sapindas of the same degrees of descent from the common ancestor.'
This it is clear that what has been stated above has been so state after considering the decision in ILR 24 Bom 317. The decision in 42 Ind App 177: (AIR 1915 PC 81) must be taken to mean that the decision in ILR 24 Bom 317 was considered and was not approved. I will hereafter make a reference to the subsequent decision of the Privy Council in connection with the same, but suffice, at the present to state that the decision in ILR 24 Bom 317 has not been approved by their Lordships of the Privy Council as the true and correct interpretation of the Mitakshara Law.
(8) Then Shah, J ., proceeded to consider the text of the Mitakshara and on a consideration of the text, he came to the conclusion that the decision reported in ILR 24 Bom 317 was a corrected by the decision. Before the Full Bench, the cases decided by the High Courts of Allahabad, Bengal and Madras where the Mitakshara Law has been interpreted in the sense that the distinction between the whole blood and the half-blood expressly accepted by Vijananeshavara with the reference to brothers applies to all got raja sapindas of the same degrees, were cited and after considering those cases, his Lordship stated that there is a very formidable weight of judicial authority against the view taken in the case ILR 24 Bom 317 and expressed that one must pause to see whether after all the view accepted in the Bombay Presidency may not be the mistaken view. However, he came to the conclusion , on the interpretation of the text itself that the principle, that the person of the whole blood excludes the person of the half-blood must be confined only to the case of a brother and his son and cannot be extended any further.
(9) Mr. Justice Fawcett, who was another member of the Full Bench, expressed himself in respect of the decision in ILR 24 Bom 317 thus:--
' I think the utmost that can be said is that the view taken by this Court is to some extent weakened in so far as the Privy Council have approved the application of a principle which if extended to he present question about whole blood and half-blood, favour the Allahabad view.'
That being so, he chose to rest his decision on the principle of stare decisions.
(10) Mr. Justice Madgavkar, a third member of the Full Bench, on this question has stated as follows:---
' The question appears to revolve round two points: viz., (1) propinquity and (2) construction of the text. On each, one of the two views is possible. Does propinquity, as test of succession, in the text in question in the Mitaksharam, mean merely distance of the class from the common ancestor; or does it further involve complete mendelism up to particles of blood and half-blood? And is the text in question as object brothers and theirs sons, enumerative and exhaustive, as an exception to the former view; other is it illustrative of the latter view? The three other High Courts have accepted the latter view on each point; this Court the former view. Each is, in theory, a tenable view. In practice and custom, as far as I know, the latter prevails, at least in this Presidency.'
It is on this basis that he chose to rest his judgment. Therefore it is clear from this, that two out of three Judges rested their decision more on the principle of stare decisions rather than these decision in ILR 24 Bom 317 is considerably weakened in view of the pronouncement of their Lordships of the Privy Council in 42 Ind App 177: (AIR 1915 PCV 81).
(11) After the decision of this Full Bench case, a similar question went to the Privy Council from the decision of the High Court of Nagpur and that decision is reported in , Garudas v. Laldas. In that case, the question that required consideration was as to rival claims took succession under the Hindu Law between the uncles of the whole blood and the half-blood. Their Lordships stated while deciding this question with reference to the text which in the following terms( Mitakshara, Ch. II. Section 4. paras 5 and 6 therefore):--
'Among brothers such as are of ht whole blood a take the inheritance in the first instance under ht the text 'to the nearest sapinda the inheritance next belongs' since those of the half-blood are remote through the difference of mothers. If there be no uterine brothers those by different mothers inherit the estate.'
'The question is whether this text enunciate only an exception to the general rule, confined the case of brothers of propostius, or whether it states a principle applicable to appeal sapindas in the seem degree adopted by the Bombay High Court. ILR 24 Bom 317, followed in 1926 by ILR 51 Bom 194: (AIR 1927 Bom 97) (FB); the latter by the High Court of Allahabad, Calcutta and Madras; ILR 19 All 215; Sham Singh v. Kishun Sahai 6 Cal LJ 190; Nachiappa Gounden v. Rangasami Gounden, 28 Mad LJ 1 : (AIR 1915 Mad 1088) (FB).'
The learned Judicial Commissioner preferred to the follow the view expressed in the earlier Bombay case. In this connection, this is what their Lordships have stated at p.194 (of Ind App): (at p.142 of AIR):--
' The rival authorities were before this Board in 42 Ind App 177: (AIR 1915 PC 81),
to which reference has already been made. The decision in that case was that paternal uncle of the half-blood inherited in preference to the son of a paternal uncle of the whole blood, but Mr. Ameer Ali delivering the Judgment of the Board commented on Suba Singh's case ILR 19 All 215, and with reference to the passage form the Mitakshara above quoted he says that there seems to be 'in principle' no reason to differentiate between the brother of the propositus and the brother of his father. He continues: 'Having regard to the general scheme of Mitakshara , their Lordships think that the preference of the whole blood to the half-blood is confined to member of the same degree of descent from the common ancestor.'
Then their Lordships refereed to the judgment of the Judicial Commissioner would have decide otherwise than what he had done if the decisions of the Board reported in , Jatindra Nath Roy v. Naganra Nath Roy, was before him. That was a case between bandhus and according to their Lordships of the Privy Council the matter is now put beyond doubt by the decision in . After a consideration of all those cases, their Lordships came to the conclusion that as between the paternal uncles of the propostius, the whole blood excludes the half -blood. Thus is it is clear that this decision of the Privy Council has finally settled the conflicting views expressed on the one hand High Court of Bombay, and on the other by the High Court of Allahabad, Madras and Calcutta.
(12) Sir Dinshah Mulla, in his book in Hindi Law ( section 44, page 130, 12th Edn.,) with reference to this subject has stated that
' a sapinda of the whole blood is preferred to a sapinda of the half-blood .... This rule applies not only to brothers and brother's sons but to remoter sapindas. It has now been held by the Privy Council that the rule applies that all the Mitakshara Schools and the Bombay cases holding a different view are overruled.'
Similarly is the view expressed by the learned Author Mayne on Hindu Law (vide paragraph 498 at page 599 (Note (No.) 11th Edn.). Therefore the first contention of the learned counsel for the appellant based on the decision of the Full Bench of the High Court of Bombay cannot be accepted as a correct contention and must be rejected.
(13) While examining the other contention of the learned counsel for the appellant , it is necessary to find out what exactly is the position of an adopted son according to Hindu Law. When a boy has been adopted from one family into another, it has the effect of removing him from his natural family into the adoptive family. He loses all the rights of a son in his natural family including the right of claiming any share in the restate of his natural father or natural relations or any share in the co parcenary property of his natural family. Though the ado-adopted boy loses all the rights of a son, yet the adoption does not saver the tie of blood between the adopted buy and the members of his natural family and he cannot therefore many in his natural family within the prohibited degree nor can be adopt from that family a boy whom he could not have adopted if he had remained in that family. Excepting those stated above, he loses all the rights in his natural family.
(14-15) The effect of adoption is to confer on the adopted boy all the rights and privileges in the family of the adopter as the legitimize ate son, excepting those cases where he is not entitled to the full rights of a natural born son viz.
1. where a son is born to the adoptive father after the adoption; and
2. where he has been adopted by a disqualified heir.
Barring these two exceptions, the adopted son acquires all the rights of a natural born son in the adoptive family. The object of adoption is to secure spiritual benefit to the adopter and his ancestors by having a son for the purpose of offering funeral cakes and oblations of water to the names of the adopter and his ancestors.
(16) The effect of an adoption has been clearly stated by their Lordships of the Privy Council in a case reported in 46 Ind. App. 97 : (AIR 1918 PC 192). Pratapsing Shivsing v. Agarsingji Raisingji. The judgment of the Board was delivered by Mr. Ameer Ali and I cannot to better than to quote his own words:-
' Now it is an explicit principle of the Hindu Law that an adopted son becomes for all purposes, the son of his father and that his rights unless curtailed by express texts are in every respect the same as those of a natural born son. And a learned authority on Hindu Law explained that the only express text by which the heritable rights of an adopted son are 'contracted' refers to the case of his sharing the heritage with an after born natural (aurasa) son. 'In every other instance the adopted son and the son of the body stand exactly in the same position' ( Rajcomar Sarbadhikary's 'Lectures on Hindu Law', Page 557). Again, it is to be remembered that an adopted son is the continuation of his adoptive father's line exactly as a aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whoever the adoption may be made there is no hiatus in the continuity of the line. In fact, as Messrs. West and Buhler point out in their learned treatise on Hindu Law, the Hindu Lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible. (Rajcomar Sarbadhikary's Lectures on Hindu Law, page 996)'.
This decision was subsequently reaffirmed by the Privy Council in a later decision reported in AIR 1943 PC 196, Anant v. Shankar.
(17) The law of adoption is a part and parcel of the general Hindu Law and if by virtue of adoption the boy gets all the rights of a natural born son in the adoptive family as an aurasa son, then there seems to be no reason why he should not be regarded as a sapinda.
(18) Mr. Gunjal, the learned Counsel for the appellant, has drawn our attention the case reported in the ILR 6 Cal 119 (FB), Umaid Bahadur v. Udais Chand for the purpose of showing what exactly is the connotation of the word 'sapinda'. That was not a case in which the position of an adopted son came to be considered. Therefore is of no help in determining the question before us.
(19) The learned counsel for the respondent has drawn our attention to the following cases with regard to the position of an adopted son, the first of them being ILR 6 Cal 256, Uma Sunker Moitro v. Kali Komul Mozumdar. This case enunciates the same principles which were clearly stated by their Lordships of the Privy Council in 46 Intended. App. 97 : (AIR 1918 PC 192)
(20) The next case to which is reference has been made is the one reported in 8 Ind. App. 229, Padmakumari Debi v. Court of Wards for the purpose of showing that an adopted son occupies the same position in the family of the adopter as a natural son except in a few instances which are accurately defined both in the Dattaka Chandrika and the Dattaka Mimansa. To the same effect is the decision reported in 43 Ind. App. 56: (AIR 1915 PC 41), Nagindas Bhagwandas v. Bachoo Hurkissondas. During the course of their judgment, their Lordships have referred to two cases viz., (1) Sumboochunder Chowdry v. Narain Dibea, 3 Knapp 55 (PC) and (2) 8 Ind. App. 229 (PC), and observed that according to Hindu Law, an adopted son becomes for all purposes the son of the father by adoption and that he succeeds not only lonely, but collateral, to the inheritance of his relations by adoption and he occupies the same position in the family of the adopter as a natural born son.
(21) Thus from the foregoing, it becomes clear that the son who goes into another family by virtue of adoption, occupies in the family of the adopter, the same position as a natural born son and he gets all the rights of a natural nor son expect those clearly stated in the Dattaka Chandrika and their Dattaka Mimansa. Thus the defendant, by virtue of his adoption becomes the natural born son of Malagouda Annapa. If the latter had an Aurasa son, he could have certainly succeeded to the estate of the deceased Kalagounda in preference to the plaintiff . If that be so, we see no reason why the defendant should not similarly succeed to the estate if the deceased Kalagounda in preference to the plaintiff . Therefore we think that the two contentions raised by the learned Counsel for the appellant cannot be sustained in law.
(22) The result is that this appeal fails and the same is dismissed with costs.
S.R. Das Gupta, C.J.
(23) I agree.
(24) Appeal dismissed.