1. These two appeals are from the judgment and decree of the District Judge of Murshidabad dated 13th June 1942 affirming the judgment and decree of the Subordinate Judge of Berhampore dated 25th July 1941 in two Suits Nos. 28 of 1940 and 34 of 1940. These two suits are between the same parties and the plaintiffs in Suit No. 28 of 1940 who lost in both the Courts below are now the appellants. The questions involved in both the suits are substantially identical. In the first mentioned suit the plaintiffs who are the defendants in the second mentioned suit, have sought for a declaration that the defendants therein who are the plaintiffs in the second mentioned suit have no right, title or interest in the properties left by one Gopal Chandra Mondal deceased. In the second mentioned suit the plaintiff sought for a partition by metes and bounds of his share in the properties of the said Gopal Chandra Mondal upon declaration of his title therein. The facts of the case with which we are concerned in these appeals are undisputed and may be briefly stated as follows:
2. One Gopal Chandra Mondal, a Hindu, governed by the Dayabagha School of Hindu Law, died intestate in or about March 1922 leaving behind him his widow Sm. Narayani Dassi and three sons, viz. Rasaraj, Rakhalraj and Dwijaraj, the last named being then a minor and also certain properties. Prior to his death Gopal authorised his wife, Narayani Dassi to give away Dwijaraj in adoption to one Bepin Behari Mondal, who was his maternal uncle. In pursuance of that authority Narayani Dassi gave away Dwijaraj in adoption to Bepin in March 1923 since when Dwijaraj was renamed as Deben. Rasaraj died in 1938 leaving behind him a minor son Biswanath.
3. It is contended on behalf of Rakhalraj and Biswanath who are the appellants that (1) Deben or Dwijaraj was divested of the one-third share in the properties which he inherited from Gopal by reason of his adoption; (2) Even if it be held that there had been no divestment as aforesaid Deben had lost his right to the properties by reason of adverse possession thereof by the said appellants.
4. Mr. A.C. Gupta for the appellants suggested that if it is. found by the Court that Deben had lost his right in the properties by adverse possession, the decision of the question whether he was divested of the properties would not be necessary. If the loss of Deben's right by adverse possession does not find favour with us the other question has got to be considered by this Court.
5. As to the question of adverse possession both the Courts below found against the appellants. (After referring to the evidence, his Lordship continued.) There is nothing on the record from which we would come to any conclusion other than that to which the learned Judges of the Courts below have arrived at. 'We have therefore to consider the other contention of the appellants that the property which Deben had inherited from his father which was vested in him as an owner got divested from him by reason of his adoption after the death of his father.
6. To maintain this contention the appellant has relied upon a text of Manu, chap, IX, V. 142 which is quoted later on and a decision of the Bombay High Court reported in Dattatraya v. Govind Sambhaji 3 A.I.R. 1916 Bom. 210. The appellants maintain further that though there are two decisions of this Court under similar circumstances reported respectively in Beharilal v. Kailash Chunder ('97) 1 C.W.N. 121, and Shyama Charan v. Sricharan : AIR1929Cal337 they could not be relied upon as in the first mentioned case the text of Manu was not cited and in the second mentioned case the text has not been correctly understood. The appellants have further asked us not to rely upon a later decision of the Bombay High Court reported in Mahabaleswar v. Subramanya 10 A.I.R. 1923 Bom. 297 and on a decision of the High Court of Madras reported in Narsimha Appa Rao v. Rangayya Appa Rao ('06) 29 Mad. 437 as they also are based on a misinterpretation of the said text of Manu and have followed the Calcutta decision reported in Beharilal v. Kailash Chunder ('97) 1 C.W.N. 121. It appears that all the cases except the one reported in Dattatraya v. Govind Sambhaji 3 A.I.R. 1916 Bom. 210 hold that ancestral property which is vested in a person by reason of partition or succession before his adoption is not taken away from him by reason of his subsequent adoption into another family and the text of Manu where it has been cited has been construed to that effect.
7. We have been asked to differ from the said Calcutta decisions and to refer this case for decision of a Full Bench.
8. The appellants contend that the effect of the true meaning of the said text of Manu in Ch. IX, V. 142 Dattatraya v. Govind Sambhaji 3 A.I.R. 1916 Bom. 210. 142 is that after adoption a Hindu loses all the rights that he may have acquired to the property of his natural father including the right to property which had exclusively vested in him inasmuch as the adoption operates as a civil death of the son adopted, in so far as the family of the natural father is concerned. It is, however, conceded that the rule laid down in the said text of Manu has no application to one's separate or self-acquired property. In view of Mr. Gupta's submission that the earlier decisions of this Court are erroneous, not being in accordance with the true meaning and effect of the said text, we are called upon to examine the said and other relevant texts of Manu as also some ancient commentaries and digests in order to form a proper appreciation of the true import of the text relied upon by the appellants.
9. Now the texts of Manu are to be understood in the manner in which they have been interpreted by commentators of recognized authority but when their commentaries are silent or not clear in the exposition of any text, it will be open to the Court to give its own interpretation in conformity with the recognized rules of interpretation of Hindu law and according to the dictates of justice, equity and good conscience. It cannot be disputed that the idea of ownership of property arising by inheritance or partition or otherwise has undergone changes since the days of Manu Smriti by the advent of later theories relating to such ownership as propounded in Mitakshara and Dayabhaga and consequently the meaning and purpose of a text of Manu affecting ownership of property must be so modified from its original sense as to fit in with the later conceptions. However, before we proceed to consider the effect of subsequent conception relating to such ownership as found in Mitakshara and Dayabhaga on the meaning of the said text of Manu it would be helpful to find out what was the meaning and significance of the said text at the time when the extant Manu Smriti was composed or collected by reference to other texts of the same Smriti. The period when this extant Manu Smriti was composed is fixed sometime between the 2nd century B.C. and 2nd century A.D. (R.V. Kane's History of Dharmasastras Vol. 1, P. 151, 1930 Edn., K.P. Jayaswal-Manu and Yajnavalka (1930) Edn., p. 29).
10. We find from the said Manu Smriti the following texts: (The translations of the texts cited unless otherwise mentioned are from G. Buhler's translation of Law of Manu in the Sacred Books of East series):
(1) After the death of the father and of the mother, the brothers, being assembled may divide among themselves in equal shares the paternal (and the maternal) estate, for they have no power over it while the parents are alive (Chap. IX v. 104). In this connection we have to note that the corresponding original word for the expression 'have no power over' is 'Anisa' which has been translated by Mr. Jayaswal in his Manu and Yajnavalka (p. 263) as 'non-proprietors' and we are inclined to accept Such translation as more appropriate rendering of the said original. It should also be noted that before the division of the estate left by the father it was called as 'Paitrikam Riktham' (or paternal estate), an expression used in the above text;
(2) or the eldest brother alone may take the whole of the paternal estate and the others shall live under him just as under their father (Manu Chap. IX v. 105). The expression used in the original of this text for 'paternal estate' is 'Pitram Dhanam' which is same as 'Paitrikam Riktham' (Verses 105-110 give the reason why the eldest is given preference).
(3) Either let them thus live together or apart if (each) desires (to gain) spiritual merit, for (by their living) separate their merit increased-Hence separation is meritorious (Manu Chap. IX v. 111).
(4) Additional share (deducted) for the eldest shall be one-twentieth for the estate and the best of all chattels, for the middlemost, half of that, but for the youngest one fourth (Manu IX v. 112).
(5) Both the eldest, the youngest shall take (their share) according to (the rule just) stated (each of) those who are between the eldest and the youngest shall have the share (prescribed for the) middlemost (Chap. IX v. 113).
(6) But among brothers equally skilled in their occupations there is no additional share, some trifle only will be given to the eldest as a token of respect (Chap. IX v. 115).
(7) If additional shares are thus deducted one must allot equal shares (out of the residue to each) but if no deduction is made, the allotment of the shares among them shall be (made) in the following manner (Chap. IX v. 116).
(8)Let the eldest son take one share in excess, the brother born next after him one (share) and half, the younger ones one hare each; thus the law is settled (Chap. IX v. 117).
The paternal estate would be divided in the aforesaid manner only if it was a division amongst the natural-born sons of the father. There is a provision in Manu Smriti (chap. IX v. 163-165 for giving some share or maintenance to other subsidiary sons if a Hindu had both natural-born and subsidiary sons.
(9) But a son born after partition shall alone take the property of his father, or if any (of the other sons) be reunited with (the father) he shall share with them (Chap. IX v. 216).
It has to be noted that in the original text only the share that is taken by the father on partition is described as 'Pitram Dhanam' (i.e. father's estate) and this indicates that shares allotted to the Separated sons become their own property.
(10) These are seven lawful modes of acquiring.
(11) Ones is partition (of the inheritance) made, (once is) a maiden given in marriage and once does (a man) say 'I give'; each of those three (acts is done) once only (Chap. IX v. 47).
(12) Inheritance, finding or friendly donation; purabase, couquest, lending at interest, the performance of work, and acceptance of gifts from virtuous men (Menu X v. 115).
11. From a consideration of the above texts one can safely make the following deductions: (1) Sons could not call for partition of paternal estate so long as the father and the mother were alive, for sons were (Anisa) non-proprietors in the lifetime of the parents with regard to ancestral property but father could divide the ancestral property amongst himself and his sons even in his lifetime (chap. IX, v. 104, 216). (2) Upon the death of the parents the sons could divide the paternal estate or keep it in the charge of fee eldest son-others living under him (chap. IX, v. 105) or they could divide the same amongst themselves-equally, except under certain special circumstances when the eldest, middlemost and youngest were entitled to additional shares (chapter IX, v. 110-113). (3) The shares of the sons were not ascertained or defined until actual partition took place (chap, IX, v. 110-117; chap. IX, v. 163-165). (4) The property of the father until divided amongst the sons was looked upon as 'Paitrikam Riktham' or 'Pitram Dhanam' i.e. paternal estate (chap. IX, v. 104-105). (5) Proprietary right over property is acquired by inheritance (chap. IX, v. 115). (6) Ownership of sons in paternal estate is finally established on partition (chap. IX, v. 47).
12. There is nothing in the two famous commentaries of Manu Smriti viz., those of Medhatithi and Kullukabhatta, relating to the stats quoted above, which makes the above deductions unreasonable or improbable.
13. Keeping these deductions in view, we may now consider the texts of Manu which deal with adoption and the consequent results thereof.
(a) Of the man who has adopted (Datrima) son possessing all good qualities, that same (son) shall take the inheritance though brought from another family (Ch. IX. v. 141).
Here the word 'inheritance' is used with reference to the adopter and the original words in the text for 'take the inheritance' are 'Haret tadriktham'.
14. Then comes the text relied upon by the appellants.
(b) An adopted son shall never take the family name and the estate of his natural father; the funeral cake follows the family name and the estate, the funeral offerings of him who gives (his son in adoption) cease (as fat as that son is concerned). (Ch. IX v. 142).
We should note that the expression used in the original text for 'the estate of natural father' is Janaitu Riktham which is same as 'Paitrikam Biktham' or 'Pitram Dhanam' used in the texts quoted before. It should be noted that in this verse also as in the previous one (ch. IX V. 141) the word 'Hareb' (take) has been used.
15. Now applying the deductions above mentioned this verse (ch. IX V. 142) can reasonably only mean that the son given away in adoption should not take what was at the time of the adoption considered to be his natural father's estate but he could take away property of which he himself was the owner. Thus he could not be deprived of any property in which he had acquired proprietary right, either by succeeding as his natural father's only heir or by reason of partition at the instance of the father in his lifetime or at the instance of his brothers after father's death, for in such cases property ceased to be considered as 'Paternal estate'. But his right to paternal property would be denied, if it remained undivided at the time of adoption though the father was dead, as the son's interest therein would be still unascertained and as such property would, until its partition, be considered as an estate of the natural father. In other words, that text (ch. IX V. 142) contemplates only the loss of right that might accrue to an adopted son after the date of adoption and not to any right to property which had already vested in him.
16. We could not find in the commentaries of Medhatithi or Kulakabbatta or in any other commentaries bearing on the verse Ch. IX v. 142 anything to suggest that the adopted son will be divested of the paternal estate that has already vested in him: see Dr. Ganganath Jha's 'Manusmriti' (Explanatory) notes Part II pp. 693-697,(1930) Edn., where all the important commentaries and also references to the verses of Manumade in well known digests and the explanations given by such digest-makers, have been collected. Nor is there anything in the said or other relevant texts of Manu to indicate that it was at all intended that the expression 'Janaitu Riktham' in that verse (ch. IX v. 142) would include property already inherited from father in absolute right. The meaning given above seems to us to be obvious also from the use of the word 'Haret' (i.e. take) in connection with the said expression 'Janaitu Riktham' (i.e. paternal estate) in that verse. The expression 'haret' there can only refer to inheritance that would come to him in future in adoptive father's family. That being so, how can the same expression 'haret' in ch. IX v. 142 in connection with natural father's estate, refer to inheritance that already had devolved on the son who is subsequently given away. Thus if a uniform construction be given to the meaning of the word 'haret' in both the verses 141 and 142 the last mentioned verse can only import that the son given away shall not take or claim any inheritance that would have come to him in future if he had remained in his natural father's family. In other words adoption will not affect the right of the son adopted in the inheritance which had already vested in him absolutely. That in our opinion is the fundamental principle underlying the right of such son as had been laid down in Manu Smriti.
17. We shall have to see next if this fundamental principle has undergone any change by the introduction of the later theories relating to the ownership of property.
18. Vijnaneswara in his Mitakshara, which was composed between 1070-1100 A.D. (P.V. Kane's History of Dharmasastra, Vol. 1 p. 290 (1930 Edn.) basing on a text of Yajnavalkya (ch. 2, V. 121).
The ownership of the father and son is the same in lands which was acquired by grandfather or in a corrody or in chattel which belonged to him Mitak. Chap. I, Section 5, v. 3 (Colebrooke's translation which has also been used with reference to other texts of Mitakshara hereinafter). and a text Gautama 'Let ownership of wealth be taken by birth (Mitak. Chap. I, Section 1, v. 23)' introduced a new principle of law that in the ancestral property right is acquired the moment the son is born (Mitak. Chap. I, Section 1, v. 23; Chap. I, Section 5, V. 5).
19. Vijnaneswar defines 'Daya' (heritage) as signifying that wealth which becomes the property of another solely by reason of relation to the owner (Mitak. chap. I, Section 1, V. 2). According to him the wealth of the father or the paternal grandfather becomes the property of his sons or grandsons in the right of their being sons or grandsons and that is an inheritance not liable to obstruction (Mitak. chap. I, Section 1, V. 3). As a necessary consequence of the doctrine, followed the right of the son to demand partition of the ancestral property in the hands of the father even in his lifetime and proprietary right of the son is established over a particular portion allotted to him or his specific shares on partition (Mitak. chap. I. V. 22; chap. I, Section 5, v. 5; chap. 1, Section 5. V. 8).
20. Another consequence that followed from the conception of joint ownership was the principle of survivorship by which the last surviving, coparcener would be the absolute owner of the ancestral property. Vijnaneswar in Mitakshara thus extended largely the right 'of the son as in Manu Smriti by recognizing his right by birth in ancestral property and his right to claim, partition in father's lifetime.
21. Now. examining the right of a son as aforesaid according to the rules laid down in Mitakshara we find that Vijnaneswara did not in any way affect the said fundamental principle founded in Manu Smriti as to the right of the adopted son. He has rather extended the son's right to ancestral property which become his own by reason of partition claimed by himself during his father's lifetime and before adoption. A son given in adoption therefore would according to Vijnaneswara's be entitled to take such, property to which he would not have been entitled during the age of Manu.
22. Further Vijnaneswara quotes the said text of Manu (chap. IX, V. 142, in Mitak. chap. I, Section 11, V. 32), in connection with the right of inheritance of the subsidiary sons but he does not say anything as to the interpretation of or the effect of the expression 'Gotra riktha Janaita no haret.' It may therefore be reasonably inferred that Vijnaneswara by recognizing the right of a son to claim partition of an ancestral property during father's lifetime and to possess absolutely a share thereof as his own on partition did not contemplate that such son could be divested of it after adoption otherwise he would not have remained silent over it.
23. Passing now to Dayabhaga which might have been composed by Jimutvahana some time between 1090-1130 A. D, (P.V. Kane's History of Dharmasastra, vol. I pp. 325-26) we see that Jimutvahana goes back to the ancient texts and finds out their original meaning and lays down amongst others, rules as to the right of the father over ancestral property and the time when it can be partitioned.
24. Jimutvahana refutes the Mitakshara doctrine of the right in the ancestral property by birth and asserts that death of the last owner causes the accrual of the heir's right (D.B. chap. I, v. 11-20).
25. Jimutvahana relies on Manu's text (chap. IX, V. 04) and maintains partition amongst sons is not authorised while their parents are alive, because they have no ownership at that time (D.B. chap. I vs. 14, 15); (D.B. chap. II, v. 8) the father being the absolute owner. He then defines 'daya' (heritage) to signify wealth in which property dependent on relation to the former owner arises on the demise of that owner (D.B. chap, I, v. 5). The extinguishment of the right of the former owner takes place also by degradation, retirement from the world and so forth (D.B. chap. I, v. 31-34); Thus the son's right to his father's estate accrues only on the extinguishment of father's right by death or otherwise.
26. He contemplates also division of the property of father during his lifetime if father would so wish but son's right to demand partition during his father's lifetime is denied. He quotes the texts of Manu and other Smritis relating to partition amongst brothers with or without deduction in favour of the eldest (D.B. chap. III, v. 37) but insists on equal partition being indispensable since persons of the present day (who are younger brothers) entertain no great veneration (for their elders) as also because elder brothers deserving of deducted allotments are now rare (D.B. chap in, v. 26-27). He grants further right to the co-sharer by providing that such person has power to alienate his share even before partition (D.B. chap. II, v. 27-28). Jimutvahana thus though accepting Manu's theory of sons having no right in the ancestral property by birth differs widely from Manu as to the son's right on death of the father. Jimutvahana allows definite equal shares to all sons and recognises power in a co-sharer to alienate his undivided interest in the ancestral property even before partition inasmuch as he is the absolute owner thereof. It appears that according to Dayabhaga the interest of the son in the ancestral estate after father's death is the same as his interest in the self-acquired property. That being so, upon the adoption of a son after his natural father's death, there cannot be any bar to such son taking away such interest which he had inherited in the ancestral estate. This would be quite consistent and in conformity with the fundamental principle underlying the said text of Manu.
27. The authorities which we need consider next are 'Dattaka Mimansa' of Nanda Pandit and 'Dattaka Chandrika' of Kuvera. The first named book is likely to have been composed between 1595-1630 A.D. (P.V. Kane's History of Dharmasastra vol. I, pp. 430-32) i.e. nearly 500 years after Mitakshara school had been established and more than 400 years after Dayabhaga's theory of ownership of property had been propounded. Nanda Pandit cites this text of Manu. (chap. IX v. 142) and explains the text:
The son given must never claim his natural father's family and estate. Thus 'the obsequies' that is the funeral repast (which would have been) performed by the son given, fails of him who has given away his son. The author of the Dattaka Chandrika then explains 'By this it is declared that by the act alone, creating the filial relation, property of the son given in, the estate of his adopter is established and connection, to him as belonging to the same family ensues. But through extinction of the filial relation from the mere gift, the property of the son, given in the estate of the giver is extinguished and connection to the family of the giver annulled'.' (Dattaka Mimansa-VI. 6-8 Sutherland's translation.)
28. The authority of Dattaka Chandrika has been considered by the Judicial Committee as undoubted in Bengal: Collector of Madura v. Moottoo Ramalinga.('68) 12 M.I.A. 397 at p. 437; Bhagwan Singh v. Bhagwan Singh (99) 26 I.A. 153 at p. 161, but its authenticity has been doubted by many jurists and his age though comparatively modern, remains undetermined. The author of Dattaka Chandrika cites the said text of Manu (chap. IX v. 142) and offers the following comment on it:
It is declared by this, that through the extinction of his filial relation from gift alone, the property of the son-given in the estate of the giver ceases and his relation to the family of that person is annulled.' (Dattaka. Chandrika, II 18-19 Sutherland's translation.);
29. These texts do not to our mind suggest in any way that the son given in adoption was to be divested of property which had become his own absolutely at the time of his adoption by the simple reason that it was or formed part of the estate of his natural father before. If the intention of the said authors had been to deny previously acquired right of a son after his adoption, which has not been expressly or impliedly denied by Mitakshara or Dayabhag, we would expect more definite statement to that effect in those texts and we fully agree with the view expressed in this connexion by the High Court of Madras in Narsimha Appa Rao v. Rangayya Appa Rao ('06) 29 Mad. 437 at pp. 449-452. Golap Chandra Sarkar in his book on Hindu law (1910) Edn. 4 being the last edition that was brought out by the author at pp. 163-165 maintaining that the adopted son is deprived of all rights that had vested in him in the property of his, natural father as in the case of a civil death, observed that the law on the subject has been misunderstood owing to mistranslation of Manu's text (chap. IX v. 142) which clearly implies that the adopted son's existing proprietary right to the natural father's property becomes extinguished. and the text has been so understood by all the Sanskrit commentators. He said further that the view expressed by him in the Tagore Lecture on adoption that, there is no authority for maintaining adoption to be tantamount to civil death, was erroneous. He relies on the above texts of Dattaka Mimansa and Dattaka Chandrika for his said view and observes that 'the commentators of Manu's Code and other commentators put the same meaning on this text of Manu indicating that the given-son's existing right becomes Extinguished by adoption....
He observes further that.
the principle which underlies what is understood to be the meaning of this text of Manu appears to be, that adoption operates as civil death as if the adopted person as son of his natural parents becomes dead etc.
30. With great respect to the learned author we regret we cannot agree with his view as we have already expressed that there is nothing in the commentaries of Medhatithi or of Kullaka-bhatta or in the explanations quoted above, of Dattaka Mimansa or Dattaka Chandrika to warrant that opinion. The texts of Manu and Brihat Manu quoted in Dattaka Mimansa, Section 2 v. 8 show further that sapinda relationship of the son adopted with his natural family does not cease for all purposes; (e.g. an adopted son could not marry a girl who is a sapinda in his natural family) and this is also borne out by the remarks of the Privy Council in Raghuraj Chandra v. Subhadra Kunwar 15 A.I.R. 1928 P.C. 87 Besides, if the idea of civil death is suffered to come in, disastrous consequences would follow and the son given is adoption would be deprived not only of the interest he had acquired in the natural father's property before adoption but also of his own self-acquired property, which could never have been the intention of Manu and of the subsequent commentators or authors of Smritis. Jimutvahana in his Dayabhaga (chap. I Sections 31-34) while enumerating what occasions extinction of proprietary right mentions (1) degradation, (2) adoption of religious order, (3) extinction of temporal affection, but no mention is made of adoption.
31. While discussing the opinion of Golap Chandra Sarkar we cannot pass without noticing that a contrary view has been expressed in the matter by another lawyer and a scholar. We mean J.R. Gharpure of Bombay (the joint editor of 'Medhatithi Vasya,' a recent publication of Research Institute of Poona) who observes in his book on Hindu law 'that the view expressed by Sir Lallubhai Shah J. in Dattatraya v. Govind Sambhaji 3 A.I.R. 1916 Bom. 210 does not appear to be in accord either with the texts cited or discussed or with established methods of interpretation. The view taken by that High Court also exposes it to what is known as 'Vakyg Bheda Desha' (J.R. Gharpure's Hindu law, Edn. 4 pn. 154-55). For explanation as to what is Vakya Bheda Dosha we will have to refer to Sarkar's Tagore Law Lectures on 'Mimansa Rules of Interpretation as applied to Hindu law (1909).' He explains at p. 115 Vakya as a number of words for expressions) collectively making out a proposition. Then at p. 87 he explains what is 'Vakya Bheda Dosha.' It is an axiom that what is on the face of it a single Vakya, must not be construed to contain two co-ordinate ideas, so as, in effect, to make it as it were two Vakyas. To do this is called 'Vakya Bheda' (splitting a sentence). Thus we have the popular maxim. 'where it is possible to take a sentence as embodying a single idea or a single proposition, it is wrong to attribute two ideas or two propositions to it.' We agree with Mr. Gharpure that there will be Vakya Bheda Dosha in the interpretation of the text of Manu (chap. IX V. 142) if we are to import in that plain text 'Gotra riktha Janaetu na haret Datrim Soota etc., that the son on being given would not take not only what his natural father's but also what had become his own by reason of the extinguishment of the father's interest therein.'
32. Reliance has also been placed in a passage in Mayne's Hindu Law loth Edn. (1947) p. 265, wherein opinion has been expressed (as of Mayne's) that the decision of the Bombay High Court in Dattatraya v. Govind Sambhaji 3 A.I.R. 1916 Bom. 210 is possibly the correct view in the matter. This opinion is in reality the view of the learned editor of the Mayne's Treatise in the present edition. The edition of the book that was last brought out by the author himself was the 7th Edn. in 1906, and that was 10 years before: that Bombay High Court decision was made and there could not have been any observation of the learned author with regard thereto. Mayne, however, makes one observation in that edition and which is to be found in the subsequent editions including the present one which might have led the present editor to think that the decision in Dattatraya v. Govind Sambhaji 3 A.I.R. 1916 Bom. 210 would be considered to be correct according to Mayne's view, namely:
By adoption the boy is completely removed from his natural family as regards all civil rights or obligations. He ceaaes to perform funeral ceremonies for those of his family for whom he would otherwise have offered oblations and he loses all rights of inheritance as completely as be had never been born.
(Mayne's Hindu Law, 7th Edn. p. 228) and he refers to Manu's text (chap. IX v. 142); Datta M. chap. VI, v. 6-8. Dattaka Chandrika chap. II v. 18 20, Mitak. chap. I V. 32, Vyavahara Mayukha Chap. IV, Section 5 and 21).
33. It does not follow from the above that the said learned author in saying that the adopted son loses all rights of inheritance refers to inheritance or interest already vested in him. He most probably referred only to future inheritance in the natural father's family. Had it been otherwise his observations cannot find any support in the texts relied upon and as the Madras High Court observed in Narsimha Appa Rao v. Rangayya Appa Rao ('06) 29 Mad. 437 that there is not anything in those passages of Dattaka Mimansa, Dattaka Chandrika and Vyavahara Mayukha which necessarily carries with it the idea that the adopted son is divested of property which is his own at the time of adoption.
34. Curiously enough we do not find any mention in that edition even of the Calcutta case in Beharilal v. Kailash Chunder ('97) 1 C.W.N. 121, or of the Madras High Court decision in Narsimha Appa Rao v. Rangayya Appa Rao ('06) 29 Mad. 437 though both the said decisions were made before the publication of that edition. We do not know if the learned author would have retained the same opinion if he had seen there decisions.
35. In consideration of what has been discussed above we come to the conclusion that it is neither the intention nor the effect of the verse of Manu relied upon (Ch. IX v. 142) that a son given in adoption will be divested of any property of which Le had become an absolute owner by inheritance prior to his adoption. This has been the rule all through since the time of Manu Sanhitha. We find that the previous decisions of this Court Beharilal v. Kailash Chunder ('97) 1 C.W.N. 121, and Shyama Charan v. Sricharan : AIR1929Cal337 are in accord with the principle aforesaid and as such we do not find any reason to differ from them.
36. A number of cases had been cited before us to show that there is a distinct trend in the decisions of the Privy Council that the rule 'property once vested cannot be divested' is not an absolute rule and that there can be divestment even after vesting in special circumstances. But no Privy Council case has been sited to show that divestment of property in the circumstances like the present case has taken place. Having regard to the view that we have taken about the principle underlying v. 142, Chap. IX of Manu it seems that the consideration of these cases are not called for as to the facts of the present case.
37. We therefore hold that Deben was not divested of the property which he inherited from Gopal by reason of his subsequent adoption. The result is that the appeals are dismissed with costs.
38. I agree.