Jagat Narayan, J.
1. This is a second appeal by the defendants in, a suit for declaration and partition.
2. Lachhman plaintiff alleged that he was adopted by Moti defendant No. 1 in Section 1995, that Moda defendant No. 2 who is the natural son of Moti was born after his adoption, and that after the birth of Moda his father turned him' out from his house. He accordingly brought the present suit for a declaration that he was the adopted son of Moti and for possession over half the property of Moti on partition. The trial court found that Lachhman was the adopted son of Moti and was entitled to one-fourth share in Moti's property after his death. It held that ha was not entitled to get the partition effected in Moti's life-time. The suit of Lachhman was accordingly decreed only in respect of the declaration that he was the adopted son of Moti. Both parties preferred appeals against this decision. The ower appellate court held that Lachhman was the adopted son of Moti and Was entitled to get possession over one-fourth share of his property on partition. A preliminary decree For partition was accordingly passed in Lachhman's favour. Against this decision the present second appeal has been filed.
2. It may be mentioned here that the plaintiff has confined his claim only to a share in immovable house property belonging to Moti shown as item No. 1 in the schedule attached to the plaint. So far as the factum of valid adoption is concerned there is evidence on record to prove that Lachhman was duly adopted in accordance with law. The lower appellate court believed this evidence and that concludes the matter. The only question which therefore arises for determination in the present case is whether under the Banaras School of Hindu law an adopted son is entitled to one-fourth of the entire estate as held by the lower appellate court or to one-fourth of the share to which a legitimate after-born son is entitled.
3. The lower appellate court has relied on Mulla's Commentary on Hindu Law in which the law has been stated as follows in Article 497 :
'Where a son is born after adoption to the adoptive father, (a) the adopted son does not, on a partition between him and the after-born natural son, share equally with him as he would have done if he were a natural son, but he takes
(1) in Bengal, one-third of the adoptive father's estate;
(2) in Banaras, one-fourth of the estate; and
(3) in the Bombay and Madras States, one-fifth of the estate; and
(b) if the estate is impartible, the Aurasa son alone succeeds to it.'
The only authorities cited in support of the above statement of law are two decisions of the Bombay High Court namely Giriapa v. Ningapa, ILR 17 bom 100, and Melappa v. Guramma, (S) AIR 1956 Bom 129. In the former case it was held that as between an adopted son and a natural son the adopted son would take one-fourth share of a share allotted to the natural son and this decision was followed in the latter case. Neither of the authorities thus supports the view expressed by Mulla in Article 497(a) (2).
4. In Mayne's Commentary on Hindu Law the following opinion is expressed (Art. 192)
'Where after an adoption a legitimate son is horn to the adopter, the adopted son does not, amongst the twice-born clauses, share equally with the aurasa son but is entitled to a lesser share on a partition of joint family property as well during his father's lifetime as after his death. According to Vasishtha, if after an adoption has been made, a legitimate son is born, the adopted son is entitled to a fourth part. Baudhayana, as explained by the commentator, gives the adopted son one-fourth of the legitimate son's share. The Mitakshara, quoting Vasishtha, mentions only a fourth share, and the Dayabhaga a third share. According to the Dattaka Mimamsa, the given son shares a fourth part.
The Dattaka Chandrika however lays down that the adopted son is to get a fourth of the aurasa son's share. While the Dattaka Mimamsa makes no distinction between the twice-born classes and Sudras on this matter, the Dattaka Chandrika says, quoting a text of Vriddha Gautama, that the rule as to ooae-fourth share does not apply to Sudras and thati amongst them, the adopted son and the after-borta aurasa son are partakers of equal shares.
It is now settled that among the twice-born classes, the adopted son in competition with the after-born aurasa son gets one-third share of the inheritance under the Dayabhaga School. In Souther India, Bombay and Bengal in cases governed by the Mitakshara law, he is entitled to a fourth of the legitimate son's share or one-fifth of the whole estate. In other parts of India which follow the Dattaka Mimamsa, the adopted son gets one-fourth of the whole estate in competition with an after-born aurasa son.
Among Sudras in Madras, Bengal, and other provinces except in Bombay, it is settled that the adopted son shares equally with the after-born aurasa SOB. The Bombay High Court however refuses to follow the Dattaka Chandrika and the decision of the Privy Council based on it, and holds that amongst Sudras, as among other classes, the adopted son gets only one-fifth of the whole estate. Where however it is a question of succession to an impartible estate, or watan property, the after-born son is preferred to the adopted son, the reason being that the adopted son is a substitute for the aurasa son, and that, when the latter comes into existence, he excludes the substitute.'
In support of the observation that in other parts of India which follow the Dattaka Mimamsa, the adopted son gets one-fourth of the whole estate in competition with an after-born aurasa son the decisions of the Bombay High Court in Rukhab v. Chunilal Ambushet, ILR 16 Bom 347 and of the Lahore High Court in Parma Nand v. Shiv Charan Das, ILR 2 Lah. 69 : (AIR 1921 Lah 147), have been cited. In Rukhab's case, ILR 16 Bom 347 the parties were Jains.
It is mentioned in the judgment that the texts quoted by West and Buhler at pages 388. 773, 935and 1187 show that under the Mitakshara law the adopted son is usually entitled to one-fourth of the estate. This statement is not correct as would appear from the detailed discussion contained in ILR 17 Bom 100. In Parma Nand's case, ILR 2 Lah 69 : (AIR 1921 Lah 147) reliance was placed on the opinion expressed by Mayne.
5. Gupte in his Commentary on Hindu Law has stated the law in the following words (para 118 page 458):
'As between an adopted son and a natural son (that is, a son born after adoption) the adopted son does not share equally with the latter but takes as follows :
(i) According to the Mitakshara law as administered in Bengal, he takes amongst the twice-born one fourth of the share of the natural son, that is, one third o the estate.
(ii) According to the law as administered in Bombay and Madras, he takes among the twice-born one-fourth of the share of the natural son, that is, one-fifth of the estate.
Among Sudras in Madras and Bengal, the adopted son shares equally with the natural son. According to the Bombay High Court, there is no such distinction.
The share of the adopted son in other parts of India would depend, it seems, upon whether the Dattaka Chandrika or the Dattaka Mimamsa is followed on the point. According to the former the share will be one-fourth of the share of the natural son but according to the latter one-fifth such share. While the Dattaka Chandrika makes a distinction between the twice-born and the Sudras, the Dattaka Mimamsa makes none. According to the Dattaka Chandrika the adopted son would among the Sudras share equally with the natural son'.
The original text to which all the authorities on this question go back is a text of Vasishtha which reads 'where a son has been adopted, if a legitimate eon be afterwards born, the adopted son shares a fourth part' (Chapter XV, sloka 9). The question turns on the meaning of the equivocal phrase 'shares a fourth part'.
6. The text of Dattaka Mimamsa on the point runs as follows :
'After the adoption of a son given, should a real legitimate son be born, the author (Vasishtha) propounds a special provision with respect to the division of the heritage; 'when & C.' The meaning is: this son given, being adopted, if a real legitimate son be born, then the son given, receives a quarter-share not an entire share.' (See Stokes' Hindu Law Books page 594 placitum 40).
7. In Dattaka Chandrika the following text appears in placitums 17 and 19 (Stokes' Hindu Law Books page 657):
17. Vasishtha 'When a son has been adopted, If a legitimate son be afterwards born, he shares a fourth part provided (the estate) may not have been expended in acts of merit.'
19. For the sake of removing the conflicting contradictions of several varying texts of Manu and the rest, the following interpretations are offered on these texts. The declaration in Vrihaspati's text, that the real legitimate son succeeds exclusively to the estate, and that the rest are entitled merely to subsistence, regard such sons of the wife and the rest who are unequal in class, on account of uniformity with text of Katyayana and Devala. And the rule also in the texts of Narada and the rest, for the succession of the son given and the rest to the estate, on default of the son of the wife, and the rest, regards their succession to the whole estate, and therefore the rule for the fourth of the share of the real legitimate son propounded by Vasishtha, where such sonmay be born subsequent to the adoption of a son given must be understood as applying to a son given. The opinion expressed in Dattaka Chandrika that what is meant by sharing fourth part is that the adopted son gets one-fourth of the share to which the legitimate natural son is entitled receives support from the fact that Section 11 of Mitakshara law affirms most distinctly the inferiority as a sharer of the adopted to the natural-born legitimate son of the owner of the inheritance. If there are 4 or 5 after-born legitimate sons then the result of interpreting the above words to mean that the adopted son gets one-fourth of the entire estate would be to put him in a better position than The natural-born son. In his Synopsis of Hindu Law of Adoption Mr. Sutherland has also expressed himself in favour of the interpretation that one-fourth part means one-fourth of the share to which a legitimate son is entitled in the following words :
'It is not easy to determine at least satisfactorily the exact right conferred on the adopted son by the expression, 'chaturthanca' (a fourth part or quarter share). If it be contended, as it perhaps justly may. that by the expression in question, a specific share of the whole estate is assigned to the adopted son, a great inconsistency would result -- Where, a division oP heritage might take place between an adopted son. and several legitimate sons' subsequently born, the share of the former would, in some instances exceed those of the latter.
This objection might be obviated by adopting the exposition of Nanda Pandita, who explains the terms referred to as signifying 'a quarter share; not an entire share' intimating probably thereby that the adopted son under the circumstances proposed should receive the fourth of the share which would be allotted to him, supposing him to be a real legitimate son.' (see Stokes' Hindu Law Books page 678). The Vyavahara Mayukha interprets the above words in the same way. In Chapter IV, Section 5, placitura 25, it is said : 'He should take a quarter of the share allotted to a legitimate son of his adoptive father; from the (following) text of Vasishtha 'when a son has been adopted, if a son of the body be afterwards born, the adopted son shall be a sharer of a portion equal to a fourth'.
8. It is true that in the Banaras School Dattaka Mimamsa is followed and not Dattaka Chandrika and Vyavahara Mayukha, but where the text of Mitakshara or Dattaka Mimamsa is not clear recourse can be had to other commentaries on Mitakshara to find out the meaning of the text given in Mitakshara.
9. It may be mentioned here that according to Manu's Code an adopted son is only entitled to a bare maintenance if an aurasa son, is born after the adoption. Manu in Chapter IX, sloka 163 says : 'The aurasa son alone is the sole heir of his father's wealth; but as a matter of compassion, he may give maintenance to the rest'. The Mitakshara interprets this passage as applying to, the other class of sons 'who are devoid of good1 qualities,' and says that the general rule as to a fourth share, is not affected by Manu's text. This goes to show that an interpretation which goes to reduce the share to which the adopted son is entitled against an aurasa son is more in consonance with the Hindu Law.
It may be pointed out that an illegitimate son among Sudras is entitled to a third share in competition with legitimate sons and the adopted son is in worse position. This cannot be considered to be anomalous. For whatever may be the social status of an illegitimate son, the fact that he is of the same flesh and blood as the person whose property he seeks a share in, may account for the favourable position assigned to him.
10. I accordingly respectfully agree with the view taken by the Bombay High Court in ILR 17Bom 100. The opinion expressed in Mulla's & Mayne's commentaries that under the Banaras School the adopted son gets one-fourth of the entire estate does not thus appear to be supported by the original texts.
11. In the present case Lachhman will therefore be entitled to only one-fourth of the share to I which Moda the aurasa son is entitled. There is a father and a mother also living. The mother has not been impleaded as a party. In order to avoid future controversy it is necessary that she should also be impleaded. The father and mother would be entitled to an equal share along with the aurasa son on a partition.
12. In the result the appeal is allowed and the decree of the lower appellate court is set aside. The suit is remanded to the court of Munsif Chittorgarh, who will implead the mother as a party and pass a preliminary decree for partition in the light of the findings given. All the other findings of fact arrived by the lower appellate court are confirmed.
13. In the circumstances of the case I direct that parties shall bear their own costs of this Court and of the lower appellate court. The costs of the trial court shall abide the result of the suit.
14. Leave to file special appeal is granted.