B.K. Mukherjea, J.
1. This appeal raises an interesting point of law relating to the succession of a married daughter to the property of her father under the Dayabhaga School of Hindu law. The properties in suit belonged admittedly to one Ganga Gobinda Bhattacherjee who died in 1286 B.S., leaving behind him his widow Nritya Kali and three daughters, to wit, Bedbati, Ramrangini and Girijabala. Nrityakali succeeded to the estate of her husband and enjoyed it in the limited interest of a Hindu widow till her death on 21st Baisakh, 1342 B. S. At the time of her death, two of her daughters Ramrangini and Girijabala were childless widows, and the only surviving married daughter was Bedbati, though she had no male issue. The only child of Bedbati was a daughter named Binapani who had a son named Sudhir, and Sudhir's son, Tarun Kumar was adopted as a son by Bedbati and her husband sometime after Nritykali's death. Umakanta, the plaintiff, is a son of a brother of Ganga Gobinda, and he commenced the present suit for recovery of possession of the properties left by Ganga Gobinda on the allegation that he was the nearest heir of the latter at the time of Nrityakali's death. So far as Ramrangini and Girijabala are concerned, it was not disputed that being childless and widowed daughters, they could not inherit the property of their father, and they themselves did not lay any claim to the same. As regards Bedbati, the case of the plaintiff was that although she was a married daughter, she, having neither any son nor the possibility of having a son in future, was excluded from inheritance under the Dayabhaga School of Hindu law. As Bedbati alone got her name registered in respect of the properties left by her father under the Land Registration Act, the suit was instituted against her as the principal defendant, the only other defendant being Tarun Kumar, the boy whom Bedbati and her husband had purported to adopt.
2. It may be stated here that Bedbati, defendant 1, was 62 years of age at the time when Nrityakali died, and it was practically conceded at the time of the trial that she was past child-bearing age at the time. The whole controversy centred round the point as to whether she could still be regarded as a married daughter, with the possibility of having a son, by reason of the fact that her husband was willing to adopt a son even during the life time of Nrityakali, and in fact a son was actually adopted by him shortly after her death. The trial Court decided this point in favour of the plaintiff and against defendant 1, and held that the likelihood of adopting a son was not the same thing as the possibility of having male issue as contemplated by the Dayabhaga. In this view of the case, the plaintiff who was a nephew of Ganga Gobinda was declared to be the heir to the estate of the latter in preference to defendant 1 and the suit was decreed. On appeal, the Disirict Judge of Murshidabad reversed the decision of the trial Court and dismissed the plaintiff's suit, being of opinion that a married daughter who was capable of adopting a son was not excluded from inheritance under the Dayabhaga law. It is the propriety of this view that has been challenged before us in this appeal. To determine this question, it would be necessary for us first of all to look to the passages in the Dayabhaga bearing on the point. The rights of succession of the daughter and the daughter's son are discussed in Chap. 11, Section 2 of the Dayabhaga. The relevant passages may be set out as follows:
V. 1. The daughter's right of succession on failure of the wife is declared. On that subject Manu and Narada say : 'The son of a man is even as himself; and the daughter is equal to the son : how, then, can any other inherit his property notwithstanding the survival of her, who is as it were himself ?' Narada particularizes the daughter as inheriting in right of her continuing the line of succession : 'On failure of male issue, the daughter inherits, for she is equally a cause of perpetuating the race; since both the son and daughter are the means of prolonging the father's line.' The author states the circumstance of her continuing the line as a reason of the daughter's succession : and the line of descendants here intends such descendants as present funeral oblations; for one, who is not an offerer of oblations, confers no benefits, and consequently differs in no respect from the offspring of a stranger or no offspring at all.
V. 2. It is the daughter's son, who is the giver of a funeral oblation, not his son; nor the daughter's daughter : for the funeral oblation ceases with him.
V. 3. Therefore the doctrine should be respected, which Dicshita maintains; namely, that a daughter who is mother of male issue or who is likely to become so, is competent to inherit, not one who is a widow, or is barren, or fails in bringing male issues as bearing none but daughters, or from some other cause.
V. 4. Here again, the unmarried daughter is in the first place sole heiress of her father's property
* * * *V. 6. This is proper; for, should the maiden arrive at puberty unmarried, through poverty, her father and the rest would fall to a region of punishment, as declared by holy writ.
* * * *V. 8. But if there be no maiden daughter, the succession devolves on her who has, and on her who is likely to have, male issue.
3. It would be clear from these passages that though the heritable rights of the daughter, or for the matter of that, of all female heirs, are said to follow from express texts, yet here also Jimuta Vahana lays stress on the doctrine of spiritual benefit. In the text of Narada quoted in the first verse the reason assigned for daughter's succession is that she is a cause of perpetuating the race. According to Jimuta Vahana, the line of descendants spoken of in this passage refers to such descendants as are capable of conferring spiritual benefit, for such descendants as offer no oblation do not in any way differ from strangers. It is because of incapacity to confer spiritual benefit that a daughter's son's son or a daughter's daughter is not entitled to inherit. A spiritual reason, though of a different character is put forward for giving preference to a maiden daughter; and among married daughters, those who have or are likely to have male issue are only entitled to succeed, barren and widowed daughters and those who have given birth to daughters alone being excluded on the ground that they neither have nor are likely to have male issue who can confer spiritual benefit on the propositus. In verse 10 of this section, it is expressly said that a married daughter, who was not appointed, confers less benefit on her father than the son and the rest and is of benefit by means only of her son; it is proper, therefore, that she should succeed only, on failure of other heirs down to the unmarried daughter.
4. Another thing that is to be noticed in this connexion is that in order to entitle a married daughter to succeed, it is enough, according to the Dayabhaga that she has the merest possibility of having a male child. A daughter endowed with a son (putra-bati) and one who has the possibility of getting a son (sambhavit-putra) are placed exactly on the same footing, and no preference is given to a daughter having a male child already over another who has only the chance of getting one. As Jimuta Vahana expressly says in verse 11 of the section, this would not be proper, for the son of the latter born subsequently might in this manner be excluded from inheritance. The idea of the commentator thus seems to be that it is eminently desirable that a daughter's son should succeed in preference to remoter heirs. If there is a married daughter who is likely to get a son, such daughter would get the property, so that the daughter's son may come after her death. If no son is actually born to the daughter, the rights of the remoter heirs to come after the death of the daughter would not be affected.
5. Mr. Panchanon Ghose who has appeared for the appellant has argued before us that the word 'putra' (son) in the expression 'having or likely to have a son' ('putrabati' and 'sambhabita-putra') as used by the Dayabhaga means and refers to the natural born son and not to the adopted son. This is supported, he says, by the text quoted above, which excludes from inheritance widowed and barren daughters and those who give birth to daughters only. If the word 'putra' includes an adopted son also, there is no reason why a barren daughter or one who has given birth to daughters only, should be excluded for they or their husbands might be quite capable of adopting a son and thus remove the bar that stands in the way of their succeeding to the estate of the father.
6. The point is not certainly free from difficulty, and one can feel a reasonable doubt as to whether Jimuta Vahana had really in mind the adopted son of a daughter when he was discussing the heritable rights either of the daughter or of the daughter's son. The Hindu Smriti writers, as is well-known, divide the twelve kinds of sons into two sets of six, of whom the first six succeed to the father as well as to all other kinsmen or members of the Gotra, while the second six inherit the property of the father alone. Some of the law-givers place the adopted son under the first category, but many others would include him under the second. Jimuta Vahana refers in this connexion to a text of Devala and says as follows:
In a partition among sons of the wife and the rest with a true legitimate son, such of them, as are of the same class with the (adoptive) father and superior by tribe to the true son, whether they be sons of an appointed daughter, or issue of the wife, or offspring of an unmarried damsel, or secretly produced, or abandoned (by the natural parents) or received with a bride, or born of a twice married woman, or given, or self given, or made or brought, shall be entitled to the third part of the share of a true son. So Devala, after having described the twelve sons, expressly declares, 'These twelve sons have been propounded for the purpose of offspring: being sons begotten by a man himself, or procreated by another man, or received for adoption, or voluntarily given. Among these, the first six are heirs of kinsmen, and the other six inherit only from the father.
The true legitimate son and the rest, to the number of six, are not only heirs of kinsmen; that is of Sapindas and other relations. The others are successors of their (adoptive) father but not heirs of collateral relations.' See Dayabhaga Chap. X, V. 7 and V. 8.
7. There is weighty opinion in favour of the view that Jimuta Vahana following Devala has placed the adopted son in the lower sub-division of sons, and an adopted son according to him cannot succeed to anybody else but his own adoptive father. This is the view taken by Mr. Golap Chandra Sarcar Sastri in his Tagore Lectures on the Law of Adoption, and, in fact, if we look to the enumeration of sons in Verse (7) quoted above the adopted comes undoubtedly after the first six. This opinion found expression in an early decision of this Court in Morun Moyee v. Bejoy Krishna (1864) 1864 W.R. F.B. 121(F.B.), where it was held by three Judges of this Court that an adopted son cannot succeed to the estate of the adoptive maternal grandfather. If this was the proper view, we would have no hesitation in holding that Jimuta Vahana had not in mind the adopted son of a daughter, when he was laying down the rights of inheritance of the daughter or of the daughter's son. According to this view, the adopted son of a daughter could not succeed to the property of the adoptive maternal grandfather at all, and a fortiori by such a son the daughter could not rank as 'putrabati' or endowed with son. The difficulty, however, is created by the way in which the law on this point has been shaped by judicial decisions. In Uma Sunker v. Kali Komul ('80) 6 Cal. 256, it was expressly held by a Full Bench of this Court that an adopted son takes by inheritance from the relatives of his adoptive mother in the same way as a legitimate son, and Morun Moyee v. Bejoy Krishna (1864) 1864 W.R. F.B. 121(F.B.), was overruled. Mitter J. who delivered the judgment of the Full Bench referred to in this connexion to various texts in Dattaka Mimansa and Dattaka Chandrika which would go to show that the adopted son confers the same spiritual benefit upon the relations of his adoptive mother as a legitimate son does. A text of Nanda Pandita which was referred to in the judgment stands as follows :
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)' Dattaka Mimansa, Section 6, p. 50.
The author of Dattaka Chandrika likewise says :
But the absolutely adopted son presents oblations to the father, and the other ancestors, of his adoptive mother only' (Section 3, p. 17).
8. As the adopted son confers the same spiritual benefit as the natural born son-and according to the Dayabhaga, the law of inheritance is based substantially upon the doctrine of spiritual benefit, -and as an adopted son is cut off from the inheritance of the relatives of his original mother, it would accord with the dictates of natural justice and equity that he should have the same heritable capacity as the legitimate son. Both in this case and in the earlier case in Puddo Kumari Debee v. Juggut Kishore Acharjee ('80) 5 Cal. 615, Mitter J. refuted the view that according to Dayabhaga an adopted son occupies an inferior position in the scale of sons and can succeed to none else but the adoptive father. The relevant passage in his judgment in Puddo Kumari Debee v. Juggut Kishore Acharjee ('80) 5 Cal. 615, stands as follows:
The author of the Dayabhaga deduces his conclusion in verse 8 from Devala's text referred to in verse 7. But it is not correct to say that Devala's text places the 'son given' within the class of sons who are not heirs of kinsmen. Devala's text is not before us and it may be that, in reciting the twelve descriptions of sons, he followed the order given in verse 7, because we find that the same text, which is referred to in the Dattaka Chandrika and Dattaka Mimansa and Colebrook's Digest, recites the sons in the same order. But the text, after reciting them in that order, classifies them thus namely : (1) son begotten by a man himself, (2) or procreated by another, (3) or received (4) or voluntarily given. After having classified them in this manner, the text goes on to say : 'Among these the first six are heirs of kinsmen etc.
9. It seems to me to be reasonable to hold that the phrase 'first six' here refers to the first six according to the classification immediately preceding, and not the first six according to the recital of the different descriptions of sons given in an earlier portion of the text. In a note by Srikrishna Tarkalankar, the order, which the different descriptions of sons occupy according to the aforesaid classification, is given, and it appears from it that the adopted son falls within the first six.'
10. The decision in Uma Sunker v. Kali Komul ('80) 6 Cal. 256, was affirmed by the Judicial Committee in Kali Komul v. Uma Sunker Moitra ('84) 10 Cal. 232 and it can now be taken to be settled law that an adopted son has the same rights in the family of adoption as a natural born son except in the particular instances which are specifically mentioned by the Dattaka Mimansa and the Dattaka Chandrika : vide also the case in Nagindas Bhagwandas v. Bachoo Hurkissondas ('45) 2 A.I.R. 1915 P.C. 41, We must accept the position therefore that the expression 'daughter's son' as used by the Dayabhaga includes the adopted son of the daughter. Suppose, now a man dies leaving behind him a married daughter and a son adopted by the latter. Can the married daughter be regarded as 'putrabati' in order to entitle her to succeed to the property of her father In our opinion, the answer must be in the affirmative. We cannot agree with Mr. Ghose that in such circumstances the daughter would be excluded as she has not got a son of her own, and the inheritance would devolve upon the adopted son of the daughter as the next heir of the maternal grandfather. To adopt such a view would be to give an adopted son preference over the natural born son. In Radha Prosad Mullick v. Ranee Moni Dasee ('06) 33 Cal. 947, which was decided by a Bench of five Judges of this Court, Maclean C. J. observed in his judgment as follows:
On 2nd November 1900, Ranimani, who was until then childless adopted with her husband Romacant Sen the defendant Jugal Kishore Sen as their son, and there is no contest as to the validity of this adoption. By this adoption Ranimoni attained the status of a daughter with a son. The cases in Puddo Kumari Debee v. Juggut Kishore Acharjee ('80) 5 Cal. 615, and Kali Komul v. Uma Sunker Moitra ('84) 10 Cal. 232, have finally settled the law that an adopted son holds precisely the same position as a son born as regards inheritance from the adopted mother's relations, and that the status of an adopted son, unless modified by express texts, is similar to that of a son born, as regards the performance of periodical obsequial ceremonies and inheritance. Ranimoni must now be recognised to be a daughter with a son, and she stands in the same position under the Hindu law as her sister Prem Mani.
11. It is true that the decision itself was reversed on another ground by the Judicial Committee, but the propriety of the observations quoted above has never been questioned. If a married daughter having an adopted son can rank as 'putrabati' for the purposes of inheritance under the Dayabhaga law both consistency and reason would demand, in our opinion, that a married daughter who is likely to have an adopted son have the same right to inherit. It is conceded by Mr. Ghose that the word 'putra' must be given the same meaning in 'sambhabita-putra' as in 'putrabati.' As an adopted son confers the same amount of spiritual benefit on his adopted mother's father as a natural born son, the possibility of having an adopted son must be deemed to be equally efficacious from the spiritual point of view as the likelihood of having male issue in the ordinary way. If, as we have suggested above, the intention of the law giver is that the daughter's sons should be allowed to come in before the other remoter agnatic relations of the propositus, and that inheritance should not go to the latter, so long as the married daughter retains the chance of having a son, there is absolutely no reason why a remoter heir should be allowed to take the property if a married daughter is in existence and her husband is quite willing and competent to adopt a son. There is no question here of invoking the fanciful analogy of constructive pregnancy as was suggested in the judgment of the trial Judge. As we have said already, what Jimuta Vahana insists upon is the mere possibility of having a son and not the actual existence of one. It is not necessary, therefore, to take recourse to the absurd fiction that the son subsequently adopted by the daughter must be deemed to have been in the mother's womb ever since the date when the succession opened. We do not think also that any practical difficulty will arise in determining the rights of succession. The act of adoption is really the act of the husband and not of the wife. In the case of a married daughter, if the husband is willing to adopt a son and is not incapable of making an adoption by reason of any physical or mental defect, we can at once say that there is likelihood of the married daughter getting an adopted son and she should be allowed to succeed in preference to a remoter heir. If she actually adopts a son, such son if living would succeed to the property after her death; and even if no adoption is as a matter of fact made, the property would eventually go to the reversioners whose rights are thus not destroyed altogether. The view we are taking is supported by Mr. Golap Chandra Sarkar Sastri in his Tagore Law Lectures on Adoption : vide Hindu Law of Adoption, page 398.
12. In the case before us, both the Courts below have found that the husband of defendant I was willing and eager to adopt a son during the life time of Nrityakali, and as already stated, a son was actually adopted by him and his wife soon after Nrityakali's death. In the circumstances, defendant 1 would, in our opinion, rank as a daughter likely to have a son and would be entitled to succeed to the property of her father in preference to the plaintiff who is a son of her father's brother. The result is that we affirm the decision of the Court below and dismiss the appeal. There will be no order as to costs in this appeal.
13. I agree.