Seshagiri Ayyar, J.
1. One Venkanna adopted the plaintiff in 1898, The first defendant was subsequently born. Venkanna died in 1902. The second defendant, the natural mother of the first defendant and the adoptive mother of the plaintiff managed the estate during the minority of the two sons. The suit is for partition for a half share in the family properties. The main contention of the first defendant is that the plaintiff is only entitled to a fifth share. The Subordinate Judge, relying on an observation in Raja v. Subbaraya I.L.R. (1884) Mad. 268, has held that the two sons were entitled to equal shares.
2. The question has been argued at great length before us. I am unable to agree with the Court below. The parties in this case are Sudras. In Raja v. Subbaraya I.L.R. (1884) Mad. 268 the dispute was between the natural son of a brother and the adopted son of another. It is settled law in Madras, notwithstanding Raghubanund Doss v. Sadhu Churn Doss I.L.R. (1879) Calc. 425 and Giriapa v. Ningapa I.L.R. (1893) 17 Bom. 100 to the contrary, that by right of representation the adopted son would take the share of his father in competition with the natural son of another member of the joint family. That was the only question that arose for decision in the Madras case. At the end of the judgment, the learned Judges say:
If there be such a special rule as is suggested, it is not applicable at all events to Sudras, among whom the adopted son is declared entitled to take an equal share with a legitimate son who is born subsequently to the adoption.
3. Apart from the text of Vridha Goutama commented on in the Dattaka Chandrika to which I shall presently refer, I have not been able to find any authority for this statement. On the other hand, Ayyavu Muppanar v. Nilayathakshi Ammal (1862) 1 M.H.C.R. 45 gave the adopted son only a fifth share in the family properties. Apparently this decision was not brought to the notice of the learned Judges. In Bombay and Calcutta, subject to the special doctrine which denies the right of representation to the adopted son in a joint family, it has been held that the share of the adopted son among Sudras is only a fourth of that of the natural son: see Raghubanund Doss v. Sadhu Churn Doss I.L.R. (1879) Calc. 425, Giriapa v. Ningapa I.L.R. (1893) 17 Bom. 100 and Bachoo v. Nagindas : AIR1914Bom38 .
4. On the authority of the Rishis and of the Smrithi Writers, I feel no hesitation in holding that the adopted son is not entitled to share equally with the natural son. (1) The well-known text of Vasishta is in chapter XV, sloka 9:
Where a son has been adopted, if a legitimate son be (afterwards) born, the adopted son shares a fourth part.
(2) Katyayana is quoted in the Dayabhaga and in Colebrooke's Digest, Volume III, page 348, as saying:
A son of the body being born, the adopted sons of the same class take one-third as their portion.
5. But in the Madanaparijatha and Viramitrodaya, the sage is quoted as allotting only a fourth part. (3) Boudhayana takes the same view as Vasishta: see Dattaka Mimamsa, Section V, slokam 42. (4) 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 compensation he may give maintenance to the rest.
6. The Mitakshara interprets this passage as applying to the other class of sons 'who are devoid of good qualities' and says that the general rule as to a fourth share is not affected by Manu's text.
7. As against these Smrithi writers, we have the authority of Vridha Goutama, who gives an equal share to the adopted son with the natural born son. It is not necessary to consider whether this text of the sage is an interpolation as surmised by Messrs. Golap Chander Sircar and Ghose. Mr. Shyama Charan Sircar in his Vyavastha Chandrika inclines to the view that the text is obsolete. The preponderance of authority, therefore, is in favour of the view restricting the rights of the adopted son to a fourth share.
8. Coming next to the commentators, the majority of them enunciate the same rule. It is curious that Vignaneswara does not even mention Vridha Goutama as an authority on this subject. This marked omission is significant. He refers to a number of Smrithis and propounds the rule, that the adopted son's share is a fourth of the aurasa son's (Mitakshara, chapter 1, Section XI, placitum 24 et seq.). Jimuta Vahana, the author of Dayabhaga, in discussing the share of the adopted son in chapter X does not mention the authority of Vridha Goutama. The Madanaparijatha and the Viramitrodaya adopt the rule given in the Mitakshara. The Saraswati Vilasa after a full discussion concurs in the same view. The author does not refer to Vridha Goutama. The first note of dissent is to be found in the Dattaka Chandrika, Section V, paragraphs 24 to 82. The author reconciles the text of Vridha Goutama with the others by restricting its application to Sudras alone. The text itself is general. But the commentator refers to the fact that among Sudras, illegitimate sons are given at least a third share in competition with legitimate sons, and argues that adopted sons should not be in a worse position. It is permissible to point out that 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. The same considerations do not always apply to an adopted son. The other reason given by the author with reference to Manu's text about a man having a hundred sons, does not commend itself to me. It is curious that the Dattaka Chandrika in interpreting Vridha Goutama's text, does not properly explain the words 'Yatha Jathe'. The author of Dattaka Mimamsa translates the words as 'possessing good qualities'. Shyama Charan Sircar in his Vyavastha Chandrika gives the same meaning. In Ghose's Hindu Law, the quotation from Vridha Goutama contains the words 'Thatha Jathe'. 'Whatever may have been the exact words, their literal meaning is 'existing as above'. The reference apparently is to the quality which a person to be adopted is expected to possess. Manu in chapter IX, sloka 169, describes an adopted son thus: 'He is considered as a son made or adopted, whom a man takes as his own son, the boy being equal in class, endued with filial virtues, acquainted with the merit of performing obsequies to his adopter, and with the sin of omitting them'. That is the reason why such an erudite scholar as Nandapandita translates Vridha Goutama's text in the way I have mentioned. I am of opinion that Goutama's rule is an exception to the general law. It would be impossible to administer such a rule by Courts, as the determination whether a man... possesses good qualities would lead to endless conflict of views. The author of Dattaka Mimamsa after examining Vridha Goutama's text care fully, inclines to the view taken by Vignaneswara and the other commentators. Thus, we see that with the exception of the Dattaka Chandrika, all the commentators agree in not giving an equal share to the adopted son. Mr. Narayanamurti contended that as the Dattaka Chandrika is a special treatise on adoption, its conclusions are entitled to greater weight than those of the other commentaries; he quoted The Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) 12 M.I.A. 436 for this position. In the first place, the question that has to be decided does not relate to the qualification of the adopted son or to the ceremonies relating to the adoption. It is a question of inheritance. It is well settled that in matters relating to inheritance, the Mitakshara is paramount in Madras. Moreover as pointed out by Mr. Ramadoss, the authority of the Dattaka Chandrika should not outweigh the sayings of the Rishis: see Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma I.L.R. (1899) Mad. 398 and Puttu Lal v. Parbati Kunwar I.L.R. (1915) All. 859. Further the Dattaka Mimamsa, another special authority on adoption, takes a different view. I am, therefore, of opinion that the view taken by the Dattaka Chandrika is not binding on us and that the dictum in Raja v. Subbaraya I.L.R. (1884) Mad. 253 based on this authority should not be followed.
9. Writers on Hindu Law have unanimously accepted the view taken by the Mitakshara. Messrs. Golap Chandra Sarkar, Ghose and Siromani Battacharya are unhesitatingly for a fifth share: Messrs. West and Bakler are of the same opinion. Mr. Mayne expresses no definite opinion on the question. He says that in Ceylon, the adopted son shares equally with the aurasa son. On the other hand the precedent quoted by Macnaughton in page 184, show that the practice is different in India. On all these grounds, I hold that the plaintiff is only entitled to a fifth share in the family properties.
10. Another point argued in the appeal relates to the direction in the decree that the first defendant's share should be held liable for monies not accounted for by the second defendant. This is clearly wrong. The first defendant may never benefit by the misconduct of his mother: see Sonu v. Dhondu I.L.R. (1904) 28 Bom. 330.
11. The last point relates to the provision for marriage expenses. In Srinivasa Ayengar v. Thiruvengabdathaiyangar I.L.R. (1915) Mad. 556, Spencer, J., agreeing With Sundara Ayyar, J., held that in partition-decrees, provision should be made for the marriage expenses of the unmarried members of the family. On the other hand Sankaran Nayar and Oldfield, JJ., in Narayana v. Ramalinga I.L.R. (1916) Mad. 587 have taken a different view. The practice in Madras seems to be in consonance with the view taken in Srinivasa Ayengar v. Thiruvengadathaiyangar I.L.R. (1915) Mad. 556: see Strange's Manual of Hindu Law, pages 190 and 191. Sir Thomas Strange in chapter VIII refers to the opinion of pandits to that effect. Jairam v. Nathu I.L.R. (1907) 31 Bom. 54 supports the appellant. Such a provision should be made only for persons who are of the same degree of relationship as those who have been married at the expense of the family.
12. In reversal of the decree of the Subordinate Judge, we direct that the plaintiff be allotted a fifth share in the properties found to belong to the family, that in passing the final decree a provision be made for the marriage expenses of the first defendant, and that that portion of the decree declaring the first defendant's share liable for malversation made by the second defendant, be omitted. Appellant is entitled to his costs from the first respondent in this appeal.
John Wallis, C.J.
13. I agree.