1. The plaintiff is the sort of a step-sister of one Narasimha Aiyar. The first defendant is the widow of Narasimha Aiyar. Defendants Nos. 3 and 4 are the sons of another step-sister of Narasimha Aiyar. Plaintiff's suit is for a declaration that the alienation made by the 1st defendant in favour of the 2nd defendant is not binding upon the plaintiff and defendants Nos. 3 and 4, as they are the reversioners to the estate of Narasimha Aiyar. Defendants Nos. 1 and 2 pleaded that the plaintiff and defendants Nos. 3 and 4 were not nearest. reversioners and that one Subba Narayana Aiyar, the adopted son of the husband of Venkachi Ammal, the sister of Narasimha Aiyar, was the nearest reversioner to him.
2. The District Munsiff found that the alienation was not for purposes, which could bind the reversioners and dismissed the suit, on the ground that Subba Narayana Aiyar was the nearest reversioner and not the plaintiff.
3. The plaintiff's appeal to the District Court was dismissed, on the ground that he was not the nearest reversioner. The plaintiff has preferred this appeal.
4. It is argued for the appellant that Subba Narayana Aiyar could not inherit to the relations of Venkachi Ammal, the wife of Narasimha Aiyar. It is admitted that Venkachi Ammal died, before Narasimha Aiyar adopted Subba Narayana Aiyar. The question is whether an adopted son can inherit to the relations of a wife of the adoptive father. The contention of the Vakil for the appellant is that an adopted son can inherit to the relations of the receiving mother only; in other words, an adopted son can inherit only to the wife of the adoptive father, who joins in the ceremony of adoption.
5. It is well settled that if a man has two wives and makes one of the wives take part in adopting a boy, the wife so taking part in the adoption becomes the adoptive mother and the other wife is step-mother. This point was settled in Annapurni Nachiar v. Collector of Tinnevelly (1895) 18 Mad. 277. which was affirmed on appeal by the Privy Council in Annapurni Nachiar v. Forbes (1900) 23 Mad. 1. The principle of these decisions is that it is open to the husband to select any one of the wives to take part in the adoption. The wife, so selected by him, is termed the receiving mother and for all practical purposes, becomes the mother and the adopted son inherits to her relations, as a son born of her womb. Uma Sunker Moitro v. Kali Komul Mozumdar (1881) 6 Cal. 256 Kali Komul Mozumdar v. Uma Sunker Moitro (1884) 10 Cal. 232 and Padmakumari Debi Chowdhrani v. Court of Wards (1882) 8 Cal. 302
6. A widow can make a valid adoption: Nagappa Udapa v. Subba Sastri 2 M.H.C. 367 and N. Chandrasekarudu v. Brahmanna 4 M.H.C. 270. In the latter case, the learned Judges were of opinion that an unmarried man could make a valid adoption. The principle of the Hindu Law is that an adoption is made to the man; for a man can make an adoption not only without the consent of the wife but also in spite of her protest. The wife has no voice in the matter and she can be associated with the husband, only if he desires her to do so. When a widow makes an adoption, under a power given by the husband, she makes the adoption only to the husband and not to herself. Where a husband does not associate any of his wives in the Act of adoption, can it be said, that the wives of the adopter, become his mothers? A man can ask only one of his wives to take part in the adoption. In delivering the judgment of their Lordships of the Privy Council, in Narasimha v. Parthasarathy (1914) 37 Mad. 199 Lord Moulton observed:
Only one wife can receive a child in adoption, so as to step into the position of being its adoptive mother. This is evident from the cases, which establish that the receiving mother acquires, in the eye of law, the same position as a natural mother, to such an extent, that her parents become legally the maternal grand-parents of the child.
7. Where a wife does not take part in the adoption by the husband, she becomes a step-mother, if another wife takes part in the adoption.
8. The contention on behalf of the respondents is that in this case the adopter had only one wife, who was dead at the time of the adoption and that according to the Hindu Law, it is the Patni that takes part in allreligious ceremonies and she being the only wife whom the adopter had, it must be considered that she was the mother of the adopted son. It is further argued that the adopted son becomes affiliated to the adopter and his wife, and therefore he must be treated as a son born to the wife.
8. The question is whether a wife, who does not or cannot take part in the adoption can become the mother of the boy, in the same sense, as the wife who receives the boy in adoption and who is termed the receiving mother. There is no direct authority on the point; but a text in Dattaka Mimamsa is relied upon, for the contention that it is really the receiving mother that becomes the mother of the adopted boy in the full sense of the term, so as to enable the adopted boy to inherit to his adoptive mother's relations. The text is in Ch. VI, ver. 50.
The forefathers of the adoptive mother only are also the maternal grandsires of sons given and the rest; for the rule regarding the paternal, is equally applicable to the maternal grandsires of adopted sons.
9. This shows that the relations of, the adoptive mother only are the maternal relations of the adopted son. If a wife of the man who makes an adoption does not join in the adoption, she cannot become the receiving mother, or adoptive mother. Belying upon this text, Golabchandra Sarkar Sastri in his work on 'The Hindu Law of Adoption', is of opinion that it is the adopted son that can inherit to the relations of the adoptive mother only. He observes at p. 215:
In order that the affiliation may be complete, it appears to be necessary that the wife also should join in adopting a son.
10. At page 227 he remarks:
To be a sou to her for legal and religious purposes, it appears to be necessary that she should join in the ceremony of accepting the boy adopted by the husband, for in the absence of her acceptance, she cannot be called adoptive mother.
11. At page 419(e) he says:
But it should be observed that although the husband's son is deemed by courtesy to be the wife's son, yet acceptance by the wife is absolutely necessary to constitute the husband's adoptee her legal son. Even when a man has only one wife, and the man alone adopts, and the wife does not join in the act of adoption or concur in it, the legal relation of mother and son cannot arise between them. There can be no actual and legal relation of mother and son, between the wife taking no part in the adoption and the husband's adopted son, any more than between a wife and the husband's begotten son by her co-wife.
12. It is clear that the wife, in order to have the real relation of mother and son should join the husband in making the adoption. If she does not, she stands only in the position of a step-mother. As the adoption is made only to the husband and as as a bachelor or widower can adopt, it is but reasonable that the wife, in order to have the legal relation of mother and son, should join in the act of adoption. If an unmarried man makes an adoption and afterwards marries two wives, can it be said that both the wives are adoptive mothers?
13. It is contended that where there are two or more wives, the wife or wives, who do not take part in the adoption become' step-mothers; but, where there is only one wife, she becomes the adoptive mother whether she joins in the act of adoption or not. It is difficult to accept this argument; for, it would lead to this conclusion that when a man having more than one wife makes an adoption, without making-any one of the wives take part in the adoption, all would become adoptive-mothers. This is opposed to the observation of their Lordships of the Privy Council in Narasimha v. Parthasarathy (1914) 37 Mad. 199.
To hold that a child could bear such a relationship to more than one mother would be entirely contrary to settled law and would produce inextricable confusion, in the law of inheritance.
14. Mr. Ananthakrishna Aiyar lays stress: on the text of Nanda Panditha, in Dattaka Mimamsa, part I, verse 22:
In consequence of the superiority of the husband by his mere act of adoption, the affiliation of the adopted, as son of the wife, is complete, in the same manner, as her property, in any other thing accepted by the husband.
15. Mr. Mayne, in his book, notes this text as authority for the position, that an adoptive mother has the same relation to the adopted boy, as a natural mother would: (Vide Mayne, paragraph 166). He does not express any opinion, as to the relationship of the only wife of the adopter, who does not take part in the adoption by the husband. If it is open to a husband, to select any of the wives to join in adopting a boy it is also open to him to make an adoption, without joining any of them in the act of adoption. The cases, Nagindas Bhaghiwandas v. Bachoo Hurkissondas A.I.R. 1915 P.C. 41 and Anandi v. Hari Suba (1909) 33 Bom. 404 which lay down that an adopted son is for-all purposes the son of the adoptive mother, do not help to solve the question. An argument was advanced that as the adopted boy loses his right in the natural family to his mother's relations, he must be held to acquire such rights in the adopter's family. This argument overlooks the fact that an unmarried man, a bachelor, could make adoption, in which case the boy can have no adoptive mother at all. The question is not what he gains or loses. The adoption being only to a man, the relationship of the adopter to the adopted boy is irrespective of there being an adoptive mother.
16. In this case, the wife was dead, at the time of the adoption. The adoption being after death, it cannot be said by any fiction that she took part in the adoption. The argument that she was a patni and therefore, she must be held to be the mother, is, I think not a satisfactory argument. Supposing that Narasimha Aiyar had two wives, who were dead at the time of the adoption, could it be said that both the deceased wives became the adoptive mothers, when the adoption was made, Mr. Ananthakrishna Aiyar remarked that it was unnecessary to speculate upon matters, not actually before the Court for decision. But, in considering whether a principle is sound or not, we must see what the logical consequences of the principle would be. The case would be different, if there is express authority for the position, In which case, the reasonableness or otherwise of the authority need not be considered. But in this case, there is an absence of authority, except the text of Nanda Pandithar in Dattaka Mimamsa, already referred to. I think, the opinion of a Sanskrit Scholar like Golabchandar Sarkar Sastri, is entitled the considerable weight. Apart from his view I think considering the principle of the various decisions on the point and especially the decision in Annapurni Nachiar v. Collector of Tinnevelly A.I.R. 1921 Mad. 410 and Annapurni Nachiar v. Forbes A.I.R. 1924 Mad. 720 I hold that an adopted boy cannot inherit to the relations of the wife of the adoptive father who does not take part in adopting him; or, in other words, he can only inherit to the adoptive mother's relations and rot to the wife of the adoptive father, who does not take part in the adoption.
17. I allow the appeal. Inasmuch as the District Court has disposed of the appeal, in its finding on issue No. 1, I remand the appeal to the District Court for disposal, after recording findings on the remaining issues.
18. Costs will abide the result; Court-fee in this Court to be refunded.