1. This is a suit for partition. The 1st Plaintiff is the father and the 2nd Plaintiff is his natural born son. The 1st defendant is his adopted son and the 2nd defendant is the son of that adopted son. The question for consideration is what is the share to which the 1st defendant, the adopted son is entiled when a suit is brought for partition and the father is party to that suit. A question was raised, which is referred to in the written statement that, as before the birth of a second son there was an award of arbitrators settling the disputes between the 1st plaintiff and the 1st defendant, a decree should be passed in pursuance of that award. The first issue related to that contention. The facts relating to that issue are these. The adoption of the 1st defendant was made in 1887 when the 1st plaintiff's first wife was alive. She died in 1888. First plaintiff contemplated marrying a second wife. Thereupon the natural father of the 1st defendant raised disputes, and asked that before the second marriage was performed the share of the 1st defendant should be set apart. It is said that in consequence of this objection by the natural father of the 1st defendant, the arbitrators settled the shares of the 1st plaintiff and the 1st defendant. The District Munsif was of opinion that as the award was not made a decree of Court and as it was not registered, it was not receivable in evidence; but he gave two plaintiffs and the 1st defendant a third share each in the property. He relied upon the decision in Raja v. Subbaraya I.L.R (1883) Mad. 253, which has since been overruled by Gopalam v. Venkataraghavulu I.L.R (1915) Mad. 632. The Munsif also stated in his judgment that the genuineness of the award was not admitted by the plaintiffs. Against the decree of the Munsif there was an appeal to the Subordinate Judge. A memorandum of objections was also filed by the defendants. In that memorandum there is no claim that they should be given a half share under the award. The Subordinate Judge came to the conclusion that the share to which the 1st defendant was entitled was 1/9 of the property. Against this finding this second appeal has been preferred by the defendants. Mr. Krishnaswami Aiyar argued that the conclusion come to by the Lower Courts that the award is not receivable in evidence was wrong and that his clients were entitled to a finding whether the award was genuine or not, and to a decree in pursuance of that award. He considered that the appellants could not claim one half of that property as there was no memorandum of objections in the Lower Appellate Court, but argued that he is entitled to rely upon the award for the purpose of securing to support the decree of the District Munsif. We have come to the conclusion that it is not open to the appellants to rely upon that award. The genuineness was disputed. There was no attempt made in the Lower Appellate Court to base any claim upon the award. We have no affidavit before us by the appellants or by their pleader that this question was argued in the Lower Appellate Court. Under these circumstances we are of opinion that the defendants gave up their right under the first issue. As was held by the Judicial Committee in Vankata Narasimha Naidu v. Bashyakarlu Naidu I.L.R (1902) Mad. 367 on a question of a disputed fact it is within the competence of the pleader or the parties to give up an issue; that is what seems to have happened in the Court. We are not prepared to remit the issue for a finding as to whether this award was genuine or not.
2. Now we come to the main question in the case and that is what is the share to which the 1st defendant is entitled where a suit is brought during the life time of his adoptive father for, settling the shares. There can be no doubt that if Manu's Text in Chapter IX Sloka 163 is to be applied literally the 1st defendant will be entitled to nothing more than maintenance. But Vignaneswara in commenting upon Yagnavalkya's text points out that this rule must be restricted to cases where the adopted son is not a good man. Since that time, three Smrithi writers at least have laid down the rule as regards the shares of the adopted son Vasishta, Katyayana and Bodhayana. All of them say that the adopted son, if a son is born to the adoptive father after the adoption, is entitled to 1/4 share. In this Court it has consistently been held that the meaning of that text is that the property should be divided into five shares, four of which will be taken by the aurasa son and one will be taken by the adopted son. The contention of Mr. Krishnaswami Aiyar was that this rule being a restriction upon the natural rights of a son should be confined to cases where there is a partition between the brothers--between the adopted son and the natural born son and should not be applied to cases where a suit is brought by the father to divide the property. He relied for this contention upon the latest pronouncement of the Judicial Committee in Pratapsing Shivesing v. Agarsingji Raisingji (1918) 46 I.A. 97 : 1918 36 M.L.J. 511 where their Lordships point out that the adopted son, ordinarily speaking, is in the same position as a natural born son. That observation was made regarding the right of maintenance; it was held that the fact that a person is adopted will not deprive him of the right. The learned Vakil also relied upon two other cases. Nagindas Bkagvandas v. Bachoo Harkissondas I.L.R (1915) Bom. 270 was a case where the question was what was the share to which the adopted son was entitled in cases of collateral succession. The adopted son and the natural born son were the only two heirs who were alive when the succession opened, and it was held that the text of Vasishta was not applicable to such a case and that both the sons were entitled to the inheritance in equal moieties. In Gangadhar Bogla v. Hiralal Bogla I.L.R (1916) Cal. 944 which related to the Stridhanam of a step-mother both Wood-roffe and Mookerjee, JJ., point out that the exception should be confined within proper limits and should not be extended to cases of Stridhana succession. From these observations Mr. Krishnaswami Aiyar contended that the injunction of Vasishta should be confined to cases where the suit is brought by a natural born son against the adopted son or vice versa and should not be extended to cases where the suit is instituted in the life-time of the father. On principle there is no reason why such a limited application should be given to the texts of Vasishta or Bodhayana or Katyayana. In two cases of this Court the matter seems to have been taken for granted that even if such a suit is brought during the life-time of the father, the text of Vasishta will be applicable. Narasimhappa v. Chinnakenchapa 38 Ind.Cas. 244 and Appeal No. 104 of 1914. But in those cases there was no discussion upon this point. And naturally the learned vakil for the appellant contended that the decision is not binding upon him. We have therefore considered the text of the Hindu Law with some care and we are glad to say that our conclusion is in accordance with the decision come to in the two cases already cited. As was pointed out by Mr. Narayanamurthi for the respondents, in this portion of Mitakshara in Section 1 the whole discussion begins with a definition of Daya. The author says that properties are of two kinds, obstructed property and unobstructed property. First of all he deals with unobstructed property and then deals with obstructed property. The rules relating to partition are all contained in the sections dealing with unobstructed property. Here again, we must observe that the sections are not to be found in Vignaneswara's commentary but they were imported by Mr. Colebrooke who has very carefully analysed the commentary and has given headings which he thought were appropriate for the subject-matter discussed. In the first clause of Section 2 the rules relating to partition during the life-time of the father are considered. In Section 3 the rules relating to partition after the death of the father are considered and the other Sections 4, 5, 6, 7, 8, 9, and 10 deal with matters which would be applicable to both classes of partition--partition during the life-time of the father and partition after his death. Section 11 in which the question as to the right of the adopted son when he is in competition with a natural born son is dealt with, must also be regarded as belonging to the same category as Sections 4 to 10 which have all a general application without reference either to the question of partition after the death of the father or partition before his death. There is no reason for saying that the text applies only to cases of partition after the death of the father. No doubt the language in Sanscrit to which Mr. Ramasamy Aiyar drew our attention in reply suggests that the commentator contemplated a state of things existing after the death of the father. But that would not show that this text is solely to be applied to cases where partition takes place after the death of the father and not during his lifetime. After dealing with this portion of Yagnavalkya's next, Vignaneswara begins the next head of discussion, namely, obstructed properties. What has been laid down in the two cases decided by the Judicial Committee and by the Calcutta High Court relates to the second head of discussion, obstructed property. It was held in these cases that there is no reason for applying Section 11 to subjects covered by Chapter 2. In our opinion we will be doing no violence to the canon of interpretation suggested by the Judicial Committee and by the learned Judges of the Calcutta High Court by applying the rule in Section 11 to cases of partition during the life-time of the father because Section 11 is germane to the discussion relating to unobstructed property. In the Dattaka Chandrika, the Dattaka Mimamsa and the Saraswathi Vilasa, the rule of Vasishta is quoted as of general application to all cases of partition. The principle underlying these texts is that in the partition of the patrimony interest between the members of the family, the adopted son is only entitled to a limited share. In the case of collateral succession, his share is as extended as that of a natural born son. According to Bodhayana Sutram the adopted child has to give and provide at the time of adoption that he would not claim more than a fourth share of his father's property if a natural son is born. For these reasons we are of opinion that the Lower Courts were right in holding that Vasishta's Text is applicable to the present case. Applying that rule, the father and the natural son would between them be entitled to 8 shares and the adopted son to one share in the property.
3. We dismiss the second appeal with costs.