1. The property which is the subject of this litigation is the Zamindari of Nidadavole in the Godavari District. Rajah Narayya Appa Rao was its last male owner, and on 7th December 1864, he died, leaving him surviving two widows named Raja Papamma Rao, the 1st defendant, and Raja Chinnamma Rao who died in 1881. In June 1885 Raja Papamma Rao adopted Venkata Ramayya Appa Rao, the father of the minor 2nd defendant. The last male owner had two half-brothers named Rama-chandra Appa Rao and Narasimha Appa Rao, and the plaintiff Venkatadri Appa Rao was the son of the latter.
2. The previous history of the family as shown by the pedigree set out in Exh. XII is shortly this. One Raja Narayya Appa Rao was the common ancestor of the plaintiff and the 1st defendant's husband. He had married five wives and had one son by his third wife, viz., Venkata Narasimha Appa Rao, and two sons by his fifth wife, viz., Ramachandra Appa Rao and Narasimha Appa Rao. Narayya Appa Rao rebelled against the late East India Company in 1783 and his Zamindari was declared to be forfeited to the Government, but some time after his death, it was granted to his eldest son. The Zamindari then consisted of two estates, viz., Nidadavole and Nuzvid, and in 1802 the former was permanently granted under a sannad to Venkata Narasimha Appa Rao, the eldest son by the third wife, and the latter to the eldest of the two sons by the fifth wife, Ramachandra Appa Rao. No provision however being made for the second son by the fifth wife, Narasimha Appa Rao, he and after him his son, the plaintiff, received an allowance for their support from the Zamindars of Nuzvid and Nidadavole. Venkata Narasimha Appa Rao had no issue and adopted the plaintiff's natural brother, Narayya Appa Rao, and Ramachandra Appa Rao was succeeded by his son Sobhanadri Appa Rao. Rajas Narayya Appa Rao and Sobhanadri Appa Rao since granted to the plaintiff in perpetuity for the support of his family two Mittas, the former, the Mitta of Tangellamudy out of the estate of Nidadavole, and the latter, the Mitta of Chinnavendra, out of the Nuzvid estate. Sobhanadri Appa Rao had six sons and the minor 2nd defendant's father was one of them, and his mother was the sister of the 1st defendant.
3. Venkataramayya Appa Rao, the adopted son of the 1st defendant, died on the 1st January 1888 and was succeeded by his minor son, the 2nd defendant who is now under the guardianship of the Court of Wards. In June 1888, plaintiff brought this suit to have it declared that the adoption of 2nd defendant's father was invalid and that as the nearest reversioner, he (the plaintiff) was entitled to the estate of Nidadavole on the death of the 1st defendant. The plaint, as originally framed, stated among other things that the plaintiff and the late Raja Narayya Appa Rao were undivided and that the former was the chief heir to the 1st defendant, but the plaintiff's Vakil has since made a statement to the effect that the plaintiff rested his claim only on his position as reversionary heir and not as an alleged coparcener.
4. The substantial question therefore for determination in this suit was whether the adoption of 2nd defendant's father Venkataramayya Appa Rao was invalid. In paragraph 5 of the plaint the adoption is impeached on five grounds, viz., (1) that Venkataramayya Appa Rao was at the time of adoption about 43 years of age and neither his father nor his mother was then alive, (2) that prior to his adoption he had instituted a partition suit and obtained a decree for a share in the estate of his natural father Sobhanadri Appa Rao, (3) that he was not eligible for adoption, as, even after his adoption, he separately performed the Sraddha of his natural father, (4) that the 1st defendant had no authority to make the adoption, and (5) that she made the adoption from corrupt motives, contrary to the intention of her co-widow Chinnamma Rao.
5. It was contended for the defendants that the 1st defendant had her husband's authority to make the adoption, that though Venkataramayya's parents had died prior to his adoption, his stepmother was alive and gave him in adoption, as she was entitled to do under Hindu Law, that the plaintiff consented to and acquiesced in the adoption and that the other objections urged against it Were entitled to no weight. Another ground of defence was that the common ancestor Narayya Appa Rao was a proclaimed rebel and the plaintiff who had to trace his relationship to the late Zamindar through him, could not under the English law of attainder assert his claim as reversioner.
6. The two issues that relate to the adoption are the 5th and 6th, and the factum of the adoption was not disputed by the plaintiff. The Subordinate Judge considered that the 1st defendant had been authorized by her husband to make the adoption but he was of opinion that Venkataramayya Appa Rao was not eligible for adoption, as his natural parents had died prior to it, and as his stepmother was not competent to give him in adoption. He considered further that although Venkataramayya Appa Rao was 40 or 41 years of age at the time of his adoption, he was unmarried and his adoption could not be impeached on account of his age according to decided cases. He thought, however, that in the circumstances of this case, the adoption was in the nature of the Kritrima form. He held further that neither plaintiff's consent to the adoption nor his acquiescence therein was proved and that the other objections urged against it were not tenable.
7. He was also of opinion that the plaintiff was not debarred from maintaining this suit by the rebellion of the common ancestor Narayya Appa Rao. On the ground, however, that a step-mother was not competent to give her step-son in adoption, that Venkataramayya Appa Rao was really an orphan at the date of the adoption and that his adoption was invalid, he decreed the claim. From this decision both defendants have appealed, the 1st defendant in No. 145 and the 2nd defendant in No. 148 of 1890.
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8. Regular Appeal No. 148 of 1890--The main question for decision in this appeal is whether Venkataramayya's step-mother was competent to give him in adoption. It is urged on appellant's behalf that the step-mother Venkataramanayamma Rao had been directed by her husband to give her step-son Venkataramayya in adoption whenever the 1st defendant should ask her to do so, that the plaintiff was present at and acquiesced in the adoption and that apart from those facts a step-mother is, in default of the natural mother, competent under Hindu law to give her step-son in adoption.
[The court found that the alleged direction by the husband to give in adoption was untrue and that the plaintiff did not consent to the adoption, and proceeded as follows:].
9. The next question for consideration is whether in default of the natural mother, a step-mother is competent under Hindu Law to give her step-son in adoption. On this point, the appellant's contention in the court below was that Venkataramayya Appa Rao was not an orphan in the sense in which the word is understood in English Law, that his step-mother took the place of his natural mother on the death of the latter, and that she was, therefore, competent to give him in adoption. After discussing the question at considerable length in paras, 139 to 195 of his judgment, the Subordinate Judge holds that a step-mother has no property in her step-son and that she is therefore incompetent to dispose of him by gift in adoption. It is argued on appellant's behalf that the word used in all the texts is mother, that the word mother is a generic term, and includes step-mother, and that she is therefore competent to give her step-son in adoption. It is further urged that, in theory, gift is prescribed in the case of adoption by reason of parental authority, that that authority is real only so long as the son is a minor, that when he attains majority, he is sui juris, that his mother has no independence of action and is practically under his control if his father happens to die, that gift is then necessary in the case of his adoption as a mere matter of form by reason of the legal fiction, and that it is sufficient if the step-mother gives her step-son in adoption.
10. As far as we are aware, there is no Smriti which deals expressly with the step-mother's power. There are, however, three principal Smritis which define an adopted son and the definitions show that a mother has power to give in adoption and that she has the power because she gave birth to her son.
11. Vasishta says, ' A son formed of seminal fluids and of blood proceeds from his father and mother as an effect from its cause ; both parents have power to give or sell or desert him. Let no man give or accept an only son since he must remain to raise up progeny for the obsequies of his ancestor. Nor let a woman give or accept a son without the assent of her lord.'--(Madras Edition, II Dig. Bk. V., Oh. IV, Verse 273.)
12. It is conceded that the received interpretation is that either parent has power to give and that the mother's power is restricted only during the life-time of her husband.
13. Manu declares, 'He is called a son given whom his father or mother affectionately gives as a son, being alike (by class), and in a time of distress, confirming the gift with water,'--(Manu, Ch. IX, 168).
14. Yagnavalkya says, ' He whom his father or his mother gives for adoption shall be considered as a eon given.'
15. All the leading commentaries in Southern India adopt the definition, see Mit. Ch. I., S. 9, placitum 9, Smriti Ghandrika, Krishnasami Aiyar's translation, Ch. X, placitum 4, 2 ; Sarasvati Vilasa, Foulkes' translation, placitum 359, and Madhaviya, Dr. Burnell's translation, page 20. There can therefore be no doubt that after the father's death, the mother has power to give her son in adoption. Does the word 'mother' include step-mother ?
16. As argued on appellant's behalf, the term ' mother' is no doubt generic but in its primary sense, it cannotes only natural mother, and the word step-mother is used when the father's wife is intended to be denoted. Etymologically also the word ' matha' refers to the natural mother and means 'maker' that is the maker, of the child in the womb, (Monier Williams' Sanskrit Dictionary). In offering funeral and annual obsequies, the Sanskrit word used to denote step-mother is sapatni matha, that is to say, co-wife-mother. It is true that in a secondary sense, it includes step-mother. So it does in the chapter on allotments made for widows. See Mit. Cli. I, S. 7 and in the chapter on sapinda relationship. But there must be a special reason either in the subject-matter of the text or in the context for departing from the ordinary meaning. In the case before us, there is reason to conclude that the word is used in its primary sense only. Vasishta's text shows that besides the father the natural mother has alone property in the son and without ownership there can be no power to give in adoption. Again, adoption is prescribed for determining the filial relation arising from birth and creating a new filial relation by gift and the very nature of the subject indicates that the father and on his default the natural mother must be the person competent to determine it. It is also unreasonable to hold that a step-mother can dispose of her step-son by adoption, for when she has her sons of her own, she is likely to exercise the power in favor of her own son and to the prejudice of her step-son. That parental affection which ordinarily prevents a father or mother from giving the son in adoption when it is not to the son's advantage is, as a general rule, wanting in the case of a step-mother.
17. We are not prepared to accede to the contention that after the son attains his majority the gift in adoption is only a formal act and it may be made by the step-mother. If so, why should not a brother, or maternal or paternal uncle, be likewise competent to give?
18. The Indian Majority Act has nothing to do with the Hindu law of adoption and the true theory is that the filiations arising from birth does not cease until and unless it is lawfully determined by the father or mother. If the appellant's contention were to prevail, the adoption would practically amount to the adoption of a son self-given which is forbidden by Adiiyapurana cited in Dattakachandrika in the note 7 to Section 9, the Aurasa and the Dattaka being the only two classes of sons recognized in the present age. It is true that when among brothers one brother has sons, Manu says that they are the sons of all the brothers. This does not mean that a brother who has no son is not at liberty to adopt when he has nephews but it is intended to denote that brothers' sons are to be preferred for adoption to strangers. It is next urged that when a step-son is alive, no adoption is permitted though his father may have married several wives and that he is considered to be the son of all. This is because a widow can only adopt for her husband and under his authority. The author of the Dattaka Mimamsa notices both the above-mentioned objections and concludes in S. 2, plac. 67 and 70 that among sapindas a brother's son must only be affiliated and that the step-son is the son of all the step-mothers because he originated from portions of their husband whilst the brother's son is not so connected by containing portions of either the husband or the wife. The author of the Dattaka chandrika comes to the same conclusion in S. 1 plac. 23 to 27. The principle appears to be this that the power to give in adoption is either with the father or natural mother with whom alone the son is connected by containing portions of his or her body.
19. As regards authority we are referred to no decided case which is on all fours with the one before us. Several of the decisions referred to by the Subordinate Judge throw light however on the principles which ought to guide our decision.
20. In Kumaravelu v. Virana Goundan, I.L.R 5 M 31 it was held that a step-mother is not entitled to succeed to her stepson in preference to a sapinda. The ground of decision is that the very reason assigned in Mit. Ch. II, S. 3, for the preference of the mother over the father shows that the natural mother is intended in that passage. This decision is only authority for the proposition that when the reason of the rule excludes its applicability to the step-mother, it is not to be taken as coming within that rule.
21. The second case is that of Muttammal v. Vengalakshmiammal, I. L. R. 5 M 32. It is only an authority for the proposition that a step-mother is dot an heir in preference to the paternal grand-mother. The ground of decision is that the name of the latter is, whilst that of the former is not, specified among the heirs mentioned in, the Mitakshara.
22. The third case is that of Mari v. Chinnammal, reported in I. L. R. 8 M. 108 It was held that a paternal uncle excludes the step-mother and the principle laid down in I. L. R 5 M 31 was approved.
23. The fourth case is Subbaluvummal v. Ammakutti Ammal, 2 M. H. C. R. 130 It was held in that case than an orphan cannot be adopted and it is an authority for the proposition that to constitute an adoption there must be a giving as well as a receiving and that in the case of an orphan, there is no one competent to give. .
24. The fifth case, viz., that of Naraijanasami v. Kuppummi, I. L. R 11 M 43 in which it was held that a widow cannot give her only son in adoption and that she is competent to give in adoption where her husband is legally competent to give and where there is no express prohibition from him. It is an authority for the proposition therein laid down, viz. that three principles appear to regulate the power to give in adoption, (1) the son is the joint property of the father and mother for the purpose of a gift in adoption, (2) when there is a competition between the father and the mother the former has a predominant interest or a potential voice, and (3) after the father's death the property survives to the mother.
25. The sixth case is that of Bai Daya v. Natha Govindlal reported at I. L. R 9 B 279 It was held in that case that a step-son is under no legal obligation to support his mother independently of the existence of family property in his hands. Adverting to Manu's text, ' mother and father in their old age, virtuous wife and an infant son, must be maintained.' The court1 observed that the word used in the text is Matha, that the primary meaning of Matha is natural mother, that it is only in a secondary or figurative sense that it could mean step-mother, that the conclusion, that it is intended to be used in the latter sense, must be drawn from the context or comparison of cognate texts.
26. The seventh case is Bashetiappa bin Baslinyappa v. Shivlin-gappa bin Ballappa reported at, 10 B. H. C. R 208 and it was there decided that a gift in (sic) by the brother made after the death of the father and (sic) though made with the previous assent of his father is invalid. The ground of decision was that the Hindu law does not permit a man after the decease of his father and mother, either with or without the authority of both or either of them, to give his brother in adoption. We are of opinion that there is no warrant either in the Smritis or in the decisions for the contention that a step-mother is competent to give her step-son in adoption.
27. The next question argued before us is that raised by the eighth issue and the Subordinate Judge has fully discussed it in paragraphs 72 to 73 of his judgment and we agree in the conclusion at which he has arrived. We also think that the old English law of attainder did not apply in India in 1783, and that even if it did, there was no formal conviction for treason nor judgment of outlawry.
28. The resumption of the Zamindari was an act of state and the law applicable to the case is that laid down in the Mayor of Lyons v. East India Company, 1 M. I. A 273 There the question for decision was whether that portion of the English law which incapacitates aliens from holding real estate and transmitting it by descent or otherwise extended to Calcutta, and the Privy Council held ' where foreign settlement is obtained in an inhabited country by conquest, or by cession from another power, the lex loci applies and the law of the country continues to apply until the Crown or the legislature changes it. Attainder was feudal in origin and was an incident of the relation of lord and vassal and not of sovereign and subject and in this sense it was unknown to Hindu law.
29. There is no other ground of objection argued in support of this appeal. Though Papamrria Rao's authority to adopt was denied in the plaint, the Subordinate Judge considered it proved and there is sufficient evidence to warrant the finding. Again the 2nd defendant's father was at the time of adoption 40 or 41 years of age, but he was unmarried. In Dattakachandrika, Section 2, 33, the commentator after discussing the question concludes thus' the practice of the ancients even in respect to the adoption of a son unlimited to a particular time is upheld.'
30. We are unable to hold that Venkataraiaayya, Appa Rao's adoption is invalid by reason of his age. Nor is the fact that he obtained a share in Sobhanadri's estate prior to adoption fatal to its validity. It is true that adoption severs one from one's natural family but there is no text to the effect that the taking of a share in one's patrimony fixes one in the natural family so as to render him subsequently ineligible for adoption. It is true that the adoption of a person who is 40 years old and who has inherited to his father twenty years after the latter's death is unusual, but it is under Hindu law no ground of invalidity. Though it is some evidence to show that the motive with which the adoption was made was a desire rather to favor the 1st defendant's sister's son at the expense of her husband's roversioner than to secure her husband's spiritual benefit, we cannot set aside the adoption on that ground.
31. We do not consider it necessary to dwell further on this part of the case as the objection that the adoption was not made bona fide is not pressed at the hearing on plaintiff's behalf on the ground that the adoption made by a step-mother is not valid. This appeal fails and we dismiss it with costs. So far as the Vakil's fee is concerned, it is to be divided into four parts and half of it to be awarded to the 2nd respondent and a quarter to each of the 3rd and 4th respondents.