Seshagiri Aiyar, J.
1. One Venkanna adopted the plaintiff in 1898. The 1st defendant was subsequently born. Venkanna died in 1902. The 2nd defendant, the Natural mother of the 1st 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 1st defendant is that the plaintiff is only entitled to a fifth share. The Subordinate Judge, relying on an observation in Raja v. Subbaraya 7 M.K 253, 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 7 M.K 253, 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 3 C.L.R. 523 and Giriapa v. Ningapa 17 B.K 100 to the contrary, that, by right of representation, the adopted son would take the share pf 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 fudges 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.' Apart from the text of Vridha Gautama commented on in the Dattaka Chandrika to which shall presently refer, I have not been able to find any authority for this statement. On the other hand, Ayyavu Muppanar v. Niladatchi Ammal 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 3 C.L.R. 534, Giriapa v. Ningapa 17 B.K 100 and Bachoo Hurkisondas v. Nagindas Bhagwandas 23 Ind. Cas. 912.
3. 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 Vasistha 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, Vol. II, page 348, as saying: 'A son of the body being born, the adopted sons of the same class take one-third of their portion.' But in the Madanaparijatha and Viramitrodaya, the sage is quoted as allotting only a fourth part. (3) Baudhayana takes the same view as Vasishta: see Dattaka Mimamsa, Section 5, sloka 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 compassion, he may give main tenance to the rest.' The Mitakshara inter prets 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.
4. As against these Smrithi writers, we have the authority of Vridha Gautama, who gives an equal share to the adopted sen 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.
5. Coming next to the commentator, the majority of them enunciate the same rule. It is curious that Vijnaneswara does not even mention Vridha Gautama as an authority on this subject. This marked omission is significant. He refers to a number of Smriihis and propounds the rule, that the adopted son's share is a fourth of the aurasa son's (Mitakshara, Chapter I, Section 11, placitum 24, et seq.). Jimuta Vahana, the author of Dayabhaga, in discussing the share of the adopted son in Chanter X, does not mention the authority of Vridha Gautama. 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 Gautama. The first note of dissent is to be found in the Dattaka Chandrika, Section 5, paragraphs 24 to 32. The author reconciles the text of Vridha Gautama with the others by restricting its application to Sudras alone. The text itself is general. But the commentator refers to the fact that among Sudrs, 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 Gautama's text, does not properly explain the 'the Jathe.' The author of the Dattaka Mimamsa translates the words as possessing good qualities'. Shyama Churn Sircar in his Vyavastha Chandrika gives the same meaning. In Ghose's Hindu Law, the quotation of Vridha Gautama uses 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, endowed 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 Wanda Pandita translates Vridha Gautama's text in the way I have mentioned. I am of opinion that Gautama'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 Gautama's text carefully, inclines to the view taken by Vijnaneswara 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. Narayanamurthi contended that as the Dattaka Chandrika is a special treatise on adoption its conclusions are entitled to greater weight than those of the other commentators; he quoted Collector of Madura v. Moottoo Bamalinga Sathupathy 12 M.I.A. 397 : 10 W.R. 1 for this position. In the first place, the question that has to be decided does not relate to the qualifications 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. Rimadoss, the authority of the Dattaka Chandrika is not to outweigh the sayings of the Bishis. See Sri Balusa Gurulingaswami v. Sri Balusa Rama Lahshmamma 26 I.A. 113 and Puttu Lal v. Parbati Kunwar 29 Ind. Cas. 617. Further, the Dattaka Mimamsa, another special authority on adoption, takes a different view. I am, therefore, clearly of opinion that the view taken by the Dattaka Chandrika is not binding on us and that the dictum in Raja v. Subbaraya 7 M.K 253 based on this authority should not be followed.
6. Writers on Hindu Law have almost unanimously accepted the view taken by the Mitakshara. Messrs. Golap Chandra Sarkar, Ghose and Siromani Battaoharya are unhesitatingly for a fifth share. Mfcssrs, West and Buhler 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 precedents 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.
7. Another point argued in the appeal relates to the direction in the decree that the 1st defendant's share should be held liable for moneys not accounted for by the 2nd defendant. This is clearly wrong. The 1st defendant may never benefit by the misconduct of his mother. See Sonu Vishram v. Dhondu Vishram 6 Bom. L.R. 122.
8. The last point relates to the provision for marriage expenses. In Srinivasa Iyengar v. Thiruvengadathaiyangar 23 Ind. Cas. 264 Spencer, J., agreeing with Sundara Aiyar, 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 Nair and Oldfield, JJ., in Appeal Suit No. 89 of 1913 have taken a different view. The practice in Madras seems to be in consonance with the view taken in Srinivasa Iyengar v. Thiruvengadathaiyangar 23 Ind. Cas. 264. 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 8 Bom. L.R. 632 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.
9. 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 1st defendant, and that that portion of the decree declaring the 1st defendant's share liable for malversation made by the 2nd defendant be omitted. Appellant is entitled to his costs from the 1st respondent in this appeal.
10. I agree.
IN A.S. No. 107 of 1913.
11. We think the 2nd defendant is entitled to maintenance at the rate of Rs. 10 per mensem charged on the estate, and to be paid by the plaintiff and the 1st defendant in proportion to their shares in the joint family property and payable on the 10th of every month. There will be no decree for arrears.
12. The decree is modified accordingly otherwise the appeal is dismissed with costs.
In A.S. No. 158 of 1913.
13. The Subordinate Judge is wrong in disallowing item 18 in Schedule A. The reason that this item was sold away to the 18th defendant by the plaintiff is not sufficient to deprive him of his right to claim it as family property. The party whom the 1st defendant alleges as the owner of it was not before the Court. This item must be included in the properties decreed to the plaintiff.
14. As regards item 11 in Schedule A, item 6 in Schedule C and the E Schedule properties, we think the Subordinate Judge is right. The appeal must be dismissed in regard to them. With regard to the debt covered by Exhibit B, the matter stands thus. Exhibit B is a deed of simple mortgage taken by the plaintiff's father in respect of items 12 and 13 in 1892. At that time he was managing the properties of the 8th defendant's father. In 1895, the latter obtained from the plaintiff's father some of the properties entrusted to his management and gave Exhibit I A as receipt therefor. It is admitted that Exhibit B is not among the documents mentioned in that receipt. The case for the 8th defendant is that Exhibit B was subsequently handed over by the plaintiff's father to him. No receipt is produced evidencing the delivery. It seems unlikely that a receipt would not have been obtained if the document was really handed over. In 1905, the 2nd defendant purporting to act on behalf of the plaintiff and the 1st defendant executed a deed of release by which she gave up the claims of the two minors in Exhibit B. We are not satisfied that this was a bona fide settlement of a disputed claim. The evidence of the 2nd defendant about the properties having been in the possession of the 8th defendant is palpably false, as the properties were subjected only to a simple mortgage. There is no specific evidence that the money due under the document came from the estate of the 8th defendant's father. All that is deposed to is that as the plaintiff's father had the estate in his possession, the money must have come from that estate. We do not think this evidence is sufficient to alter the prima facie character of the transaction. We are of opinion that the money advanced belonged to the father of the plaintiff and 1st defendant. They are entitled to their respective shares in the debt; items 12 and 13 of Schedule A are subject to this mortgage-debt.
15. We cannot uphold, for the reasons given in Appeal No. 98, the decree by which the 1st defendant's share in the property has been held liable for the moneys not accounted for by the 2nd defendant. We must ask the Subordinate Judge to appoint a Commissioner to take an account of (a) the moneys which came into the hands of the 2nd defendant as guardian of the two minors since the death of her husband in 1902; and (b) of the expenditure legitimately incurred by her in the management of the estate.
16. In passing a final decree, plaintiff and the 1st defendant should be given their respective shares in the balance that may be found due from the 2nd defendant. Plaintiff will have proportionate costs of this appeal from the 8th defendant in this and in the lower Court. The other parties will bear their own costs.