1. The question in this appeal is whether the adopted son of a man whose only wife had died before the adoption becomes the son of that wife so as to fie her legal heir. This question does not seem to have been directly decided in any case and, therefore, it will be necessary to see how far the authorities support the proposition. In the first place, it is necessary to consider the principles which govern the adoption under the Hindu Law. In Uma Sunkar Moitro v. Kali Komul Mozumdar 7 C.L.R. 145 Romesh Chunder Matter, J., observes:
The theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and the maternal line, and his complete substitution into the adopter's family, as if he were born in it.
2. This theory has been upheld by the Privy Council in Nagindas Bhugwandas v. Bachoo Hurkisandas 32 Ind. Cas. 403: 14 A.L.J. 185 : (1916) 1 M.W.N. 258. The theory then appears to be that the adopted boy by a legal fiction becomes the natural son of the adoptive father and presumably also of his wife. The question here is not complicated by the existence of two or more wives. In Venkata Narasimha v. Parthasarathy 23 Ind. Cas. 166 : 37 M. 199 : (1914) M.W.N. 299 their Lordships of the Judicial Committee observe: 'Only one wife can receive the child in adoption so as to step into the position of being its adoptive mother' and again 'to hold that a child could bear such a relationship to more than one mother would be entirely contrary to settled law.' This conclusion appears to be based on the theory of adoption, namely, that the adopted son becomes the natural son of the father and the only way in which he can be deemed to be the natural and legitimate son of his father is by a fiction that he is the son of that father's wife also. A Hindu son has to offer oblations not only to his father's ancestors, but also to his mother's ancestors. When, therefore, he is adopted into a new family, he becomes the son of that family and presumably he would offer oblations not only to his adoptive father's ancestors but to his father's wife's ancestors as well. It would be straining the legal fiction of adoption too far to hold that the boy need have no mother at all, although this may possibly be necessary in the case of an adoption by a bachelor but that is an exceptional case with which we are not concerned now. In a family in which there were two wives, it was held that the wife who joined with the father in making the adoption although the junior wife was the mother of the boy in preference to her senior co-wife. Annapurni Nachiar v. Collector of Tinnevelly 5 M.L.J. 121. This was upheld by the Privy Council in Anpiapurni Nachiar v. Forbes 3 C.W.N. 730. Wherever possible, therefore, a mother should be found for the boy and the fact that such a mother died before the adoption can be no obstacle in view of the fictitious character of the whole principle of adoption.
3. It is contended for the respondent that even when the adoptive father's wife is alive, she does not become the adoptive mother unless she actively participates in the adoption by receiving the adopted boy. This contention is apparently based on the literal meaning, of the word 'prathigrahitha' which is ordinarily translated as adoptive. Its literal meaning is 'receiving' and it is contended that unlessthe boy is actually received by the woman, she does not become his adoptive mother. It is well-settled that a man can adopt without the consent of his wife and even against her consent and in either case the adoption is valid. If the adoption is valid and the principle is recognised that the adopted boy ought in theory to have a mother, it is difficult to accept the proposition that he is not to have any mother at all, unless she actually receives him in adoption. The argument that the wife becomes the adoptive mother is based on the texts of Nanda Pandita in Dattaka Mimamsa, Part 1, 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.' In this text there is no qualification of the words 'son of the wife' such as is sought to be put upon it by the respondent. He contends that it only means son in a tertiary sense, as laid down by Sarkar Sastri in his commentary on Adoption (page 227). When pressed for an interpretation of this tertiary, sense, the learned Vakil had to adopt the conclusion in Sarkar Sastri's book, namely, that he was not really a son for any purpose. This seems to be a quite unnecessary deduction for it destroys the apparent meaning of the text. If he is not really the son of the wife in any sense, why should the text declare that his affiliation as such is complete. No doubt, Sarkar Sastri in his commentary supports the proposition put forward for the respondent, but there are very many contradictory statements to be found in his commentary. For instance, his observations at page 200 are altogether contradicted by those at page 419B. Apart, therefore, from this commentary, there appears to be no authority for the proposition that the wife does not become the adoptive mother unless she actually receives the boy. It may also be observed that it is only in very rare cases that the wife receives the boy as well as the father, and consequently in most cases if this contention were to be upheld, the result would be that an adopted son who was adopted by the father would have no mother at all, for admittedly he is no longer considered to be the son of his natural mother and consequently he would be in the anomalous position of a man who has no mother at all. If this anomalous position of a man without a mother can be avoided, I think it should be as being opposed to laws of nature to which the theory of adoption is assimilated. The text of Dattaka Mimamsa is undoubtedly an authority to the contrary. I may observe that the late Sir Bhashyam. Iyengar, J., accepted this proposition in an article in 9 M.L.J. 231 and there appears to be no reason why it should not be adopted. If, therefore, the wife becomes the adoptive mother whether she takes part in the ceremony or not then there can be little difficulty in pressing the fiction a little further so as to include the deceased wife of the adoptive father. The whole theory being a fiction the impossibility of a woman becoming the mother after her death must be explained away by the fictitious nature of adoption. As her consent is not necessary, the fact, that the consent cannot be obtained after her death is immaterial. I would, therefore, hold that the deceased wife of the adoptive father can become the adoptive mother and the adopted son becomes her heir.
4. The learned Judge from whose decision this appeal is preferred has adopted the arguments of Sarkar Sastri in favour of his view, but as I hare observed above, these arguments seem to be based on incorrect principles and an incorrect reading of the text. The appeal must, therefore, be allowed and the plaintiff's (respondent's) suit dismissed with costs throughout.
Madhavan Nair, J.
5. The question for decision is whether an adopted son can inherit to the relations of the wife of his adoptive father when that wife was dead at the time of his adoption. Devadoss, J., answered the question in negative, basing his judgment on the ground that 'adoption being after the death (of the wife) it cannot be said by any fiction that she took part in the adoption.' According to this view an adopted son can be heir only to the wife of the adoptive father who joins in the ceremony of adoption and who is termed 'the receiving mother.' The correctness of this view is challenged in this Letters Patent Appeal.
6. There is no direct authority on the point; but two texts in Dattaka Mimamsa have a bearing on the question. These are Dattaka Mimamsa, Section 1, verse 22, and Section 6, verse 50 and are thus translated by Stokes:
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.
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 adoptive sons).
7. Respondent relies strongly on the latter of the above-mentioned texts in support of his contention. This text shows that the relations of the adoptive mother only are the maternal relations of the adopted son. It is pointed out that the Sanscrit word 'prathigrahiyamatha' corresponding to the term 'adoptive mother' means 'mother who accepts in adoption' and, therefore, only the relations of a 'receiving mother' are the maternal relations of the adopted son. It is difficult to accede to the argument that effect should be given to the literal meaning of the word 'prathigrahiyamatha' and that it should be understood in the sense of physical acceptance by the mother; for it is well-known that the wife of the adopter is regarded as the adoptive mother even if she is not present at the adoption. The wife becomes the adoptive mother, not because she receives the boy in adoption but she is the wife of the adopter her husband who takes the boy in adoption. The context in which the passage occurs does not seem to require that the word should receive its primary meaning. The author'mentions that the ancestors of the adoptive father are the paternal ancestors of the adopted son and then points out in the same way, that the forefathers of the adoptive mother only are also the maternal grandsires of the sons given 'as distinguished from the ancestors of the natural mother.' To illustrate this position there is no need to emphasise 'acceptance' by the adoptive mother as a necessary feature in the cere mony of adoption. Sirkar Sastri in his, 'Tagore Law Lectures on Adoption' interprets the term 'prathigrahiyamatha' literally. He says at page 419E 'but it should 'fee observed that although the husband's son is deemed by courtesy to be the wife's son, yet1 acceptance by the wife is absolutely necessary to constitute the husband's adoptee her legal son.' See also page 237. These passages support the contention of the respondent. But the same learned author at page 200, para. 4 of the same volume expresses the following contrary view relied on by the appellant, when the adopter is a widower, it might be said that his deceased wife's ancestors will be the maternal ancestors of the adopted son. This opinion of Sirkar Sastri is, therefore, not very helpful in deciding this question.
8. In support of the theory that there should be a 'receiving mother' to enable the husband to make a valid adoption, the learned Judge refers to Annapurni Nachiar v. Collector of Tinnevelly 5 M.L.J. 121 but that was a case where a conflict arose between the two married wives of the holder of an impartible zemindari as regards the right to succeed to the impartible estate the property of the infant adoptive son of their late husband. It was held that the junior wife having taken part in the adoption was entitled to preference over her co-wife who was not associated by the husband in the act of adoption. In the course of his judgment Mr. Justice Shephard points out that, 'Where, however, there areseveral wivesit is said that the husband is at liberty to designate the one who shall take place of the mother, and that by this means the anomally of assigning several mothers to the adopted son may be avoided.' As regards the association by the husband of one of the wives in the act of adoption, the Privy Council in affirming the decision of the High Court observed thus: 'It certainly is a reasonable law that the head of a family should be able to take action likely to prevent disputes between his widows relative to adoption and the consequences of it. To unite one wife with himself in adopting is one way; and it is satisfactory to find that besides the one direct judicial decision there is so much reason and opinion in its favour and so little against it' see Annapurni Nachiar v. Forbes 1 Bom. L.R. 611. What has thus been said as regards the 'acceptance' by one mother when there are several wives to the adopter does not lead to the conclusion that the 'receiving mother' is necessary to validate the adoption by the husband. It is conceded that if the husband had only one wife the act of adoption inasmuch as it concerns him alone may be performed independently of her.
9. The first of the two texts referred to above does not in any way support the o suggestion that the adoptive mother to have the same relation as the natural mother should be one who actually receives the boy in adoption. On the other hand, inference drawn from it strongly supports the appellant. It is undisputed that adoption can be made by the husband without the consent of his wife. It may be made even against her wishes; her association with the husband in the act of adoption is a religious formality which does not show any legal signification. 'The ceremonial of adoption utterly ignores the wife, who, need not be present and to whom no part is assigned If she is present' (Mayne's Hindu Law. 229) When the adoption is made whether with o without her consent, the wife becomes the adoptive mother of the child by the mere fact of adoption. Adoption is but a fiction in law. As observed by Mahmood, J., in Ganga Sahai v. Lekhraj Singh 5 Ind. Dec. 604 adoption is itself a 'second birth' proceeding upon the fiction of law that the adopted son is 'born again' into the adoptive family by the rites of initiation.' 'According to Hindu Law, an adopted son occupies the same position, and has the same rights and privileges in the family of the adopter as the legitimate son.... The theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and the maternal line, and his complete substitution in the adopter's family, as if he were born in it:' see Uma Sunker Moitro v. Kali Komul Mozumdar 7 C.L.R. 145 quoted with approval in Nagindas Bhugwandas v. Bachoo Hurkissandas 32 Ind. Cas. 403 : 80 M.L.J. 193 : 18 Bom. L.R. 172: 23 C.L.J. 395. As his adoption puts the adopted son in the place of a legitimate son as regards the rights of inheritance in the family of the adopter, he must be considered to be heir to any rights arising after the adoption from his father's wife's position in his adoptive family, though she was not alive at the time of the adoption. To give full effect to the fiction of adoption and. to assimilate the fact to an imitation of nature, the adapted boy should have a mother. I do not think it is impossible to conceive the deceased wife as the fictional mother of the adopted child. The theory of a 'receiving mother' being discarded, I cannot find any difficulty in holding that the wife of the adoptive father though she was dead at the time of adoption can be considered as the adoptive mother.
10. It is true that when a bachelor adopts, the adopted boy can have no adoptive mother. Fiction cannot be heard to assimilate to nature in that case. But there is no reason why we should extend that analogy to cases like the present when it is possible to give full effect to the fiction by ascribing the deceased wife of the husband as the adoptive mother of the child.
11. For these reasons, I hold that the Letters Patent Appeal should be allowed and the plaintiff's suit be dismissed with costs throughout.