Skip to content


Shyama Charan Chattopadhaya Vs. Sricharan Chattopadhya - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Reported inAIR1929Cal337
AppellantShyama Charan Chattopadhaya
RespondentSricharan Chattopadhya
Cases ReferredDattatraya v. Gobinda
Excerpt:
- .....that the effect of the adoption of the defendant by his uncle was to sever his connexion with his natural family so completely that he was to give up everything connected with the family, that he was civilly 'dead so far as his natural family was concerned which means as if he has never been born in the family of his natural father govinda. it is argued that the logical result is that govinda's estate devolved on the plaintiff who must be regarded as the only son of govinda in view of the fiction of hindu law that the defendant must be taken to have never been born in the family of his natural father. it is said that the decision of mr. ameer ali, j., as he then was, in the ease of behari lal v. kailash chunder [1897] 1 c.w.n. 121 which takes a contrary view is wrong. reliance is placed.....
Judgment:

Mitter, J.

1. The substantial question of law raised by this appeal is whether under the Bengal School of Hindu Law a person who has inherited the property of his father on the latter's death is divested of that inheritance by his being subsequently adopted by his paternal uncle. The appellant contends that he is so divested, on the other hand the respondent contends that the is not. Both the Courts below have given effect to the contention of the respondent. The question in this appeal is whether those decisions are right.

2. The relevant facts on which the question of law depends are not now in dispute. They may briefly be stated thus : Govinda Chatterjee and Prosanna Chatterjee were two brothers' governed by the Bengal School of Hindu law. Govinda granted a lease to his brother of certain lands which constituted a tenure. These lands belonged exclusively in proprietary right to Govinda who died in the year 1883. Govinda left behind him two sons Shyamacharan (plaintiff, now appellant) and Sricharan (defendant, now respondent) as his heirs and legal representatives. The plaintiff and the defendant consequently became entitled to the proprietary right in equal moieties in the lands under which Prosanna, their uncle, held the tenure and each became entitled to get half of the rental from Prosanna. A year after the death of Govinda his widow gave the defendant Shricharan in adoption to her husband's brother Prosanna. The name of the plaintiff, however, appears in the land revenue register as possessing two annas share in Taluq Nos. 3322 and 3382 under which the tenure in question is held. The plaintiff brought the suit in which this appeal arises for the rent of the tenure as the sole heir of his father. The defence of the defendant is that plaintiff is only entitled to a half share of the rent as he was given in adoption after the property in respect of which the rent suit has been instituted vested in him by inheritance, and that his subsequent adoption by his uncle could not divest him of this inheritance. The defendant has also raised other defences which will be mentioned when I shall deal with the other points raised by this appeal. As I have said already the Courts below have given effect to the defence and have dismissed the plaintiffs suit on the ground that the rent for the four years 1327 to 1330 B. S. in plaintiff's half share had been satisfied. Hence the plaintiff has appealed.

3. It has been contended on behalf of the appellant that the effect of the adoption of the defendant by his uncle was to sever his connexion with his natural family so completely that he was to give up everything connected with the family, that he was civilly 'dead so far as his natural family was concerned which means as if he has never been born in the family of his natural father Govinda. It is argued that the logical result is that Govinda's estate devolved on the plaintiff who must be regarded as the only son of Govinda in view of the fiction of Hindu law that the defendant must be taken to have never been born in the family of his natural father. It is said that the decision of Mr. Ameer Ali, J., as he then was, in the ease of Behari Lal v. Kailash Chunder [1897] 1 C.W.N. 121 which takes a contrary view is wrong. Reliance is placed on the decision of the Bombay High Court in the case of Dattatraya v. Gobinda [1916] 40 Bom. 429, which was a case governed by the Mitakshara School of Hindu law as modified by the Mayukha School. In that case it was held that when a boy is given in adoption he loses all the rights he may have acquired to the property of his natural father including the right to property which has become exclusively vested in him before the date of his adoption. It is based upon a text of Manu which I shall refer to later and which has been read as giving effect to the fundamental idea underlying the adoption viz., that the boy given in adoption gives up the natural family and everything connected with the family and takes his place in the adoptive family as if he has been born there, as far as possible. Stress is laid on the circumstances that the Judicial Committee of the Privy Council has in a recent case see: Raghuraj v. Subhadra A.I.R. 1928 P.C. 87, applied the principle of the Bombay decision and has quoted the same with approval. It becomes necessary, therefore, to examine to what state of circumstances their Lordships of the Judicial Committee applied the fundamental principle laid down in the Bombay case and whether it was the intention of their Lordships to go back upon another well established principle laid down by their Lordships in the case of Maniram v. Kollitani [1880] 5 Cal. 776, namely that an estate once vested under the Hindu Law cannot be divested. In the case in Baghuraj v. Subhadra A.I.R. 1928 P.C. 87 the question arose with regard to the succession to an Oudh Taluqa. The question was whether on the death intestate of a Hindu holder, the ceremonially adopted son of the preceding holder, his natural brother could be regarded as a brother ' within the meaning of the Oudh Estates Act (1 of 1869 as subsequently amended) in view of the fact that according te the Hindu Law the adoption operated as a re-birth. The Judicial Committee held: 'that if the natural brother of the ceremonially adopted son of the previous holder were to be made the hair to the taluk, how could ho still a member of his family of birth and bound to make the necessary offerings for his own ancestors, be qualified to be the same thing for his brother and his adoptive father and that father's immediate predecessors If he cannot, how is the legal theory squared with the termination of the ceremonies in the family into which the son was adopted.'

4. It is in connexion with this state of circumstances that the Judicial Committee quoted with approval the remarks of the learned Judges of the Bombay High Court in the case already referred to, viz.,

the fundamental idea is that the boy given in adoption gives up the natural family and everything connected with the family.

5. At the same time their Lordships pointed out that the expressions

Civilly dead or as if he had never been born in his family,

are not for all purposes correct or logically applicable, but they are complimentary to the term ' new birth.' Their Lordships' decision must be read by keeping in view what has been said in the case of Quinn v. Leathern [1901] A.C. 495 that a case is authority for what it actually decides and not for what would seem to flow logically from it for the law is not always logical at all. There is nothing in the judgment of the Judicial Committee which would go to show that their Lordships approved of the actual decision in the Bombay case which lays down the broad proposition contended for by the appellant. Under the Dayabhaga system of Hindu law the son on the death of his father obtains an absolute right to his share in the property of his father. His father's right to such property is extinguished by his death and the son's right in the property is created on the father's death. It is difficult to imagine how a person by reason of his being adopted subsequent to his father's death can be deprived of property which at the time of his adoption was his own. It is to be noticed that the Bombay High Court in the year 1922 held that a person governed by the Mitakshara law does not on his adoption lose the share which he has already obtained on partition from his natural father and brothers in his family of birth : see Mahahleswar v. Subramanya A.I.R. 1923 Bom. 297 and the same Court in the case of Manila Bai v. Gokul Das Ramdas A.I.R. 1925 Bom. 363 held that the adoption of a married Hindu, the sole owner of ancestral property acquired by survivorship on the death of his father, does not deprive his daughter of her right of inheritance to that property. It was pointed out in that case by Sir Norman Macleod, C.J., that by his adoption Ram Das lost all rights of inheritance in his natural family as if he had died but it was quite unnecessary to add a further fiction viz , as if he had never been born in the family. It is difficult to reconcile the case in Mahableswar v. Subramanya A.I.R. 1923 Bom with the broad view taken in the case in Dattatraya v. Gobinda [1916] 40 Bom. 429. In the case of Venkata Narasimha v. Rangayya [1906] 29 Mad. 437 the learned Judges followed the decision of the Calcutta High Court in Behari Lal v. Kailash Chunder [1897] 1 C.W.N. 121 and after examining the texts of Hindu law held that the adoption into another family of the only surviving member of a joint family in whom the family estate vested solely and absolutely does not in law operate to divest him of his rights in such estate. Reliance has been placed on a text of Manu in regard to which there is a difference in the translation as given by Sir William Jones and that given by Mr. Golap Chandra Sarkar Sastri. I will give the two translations side by side. Mr. Sarkar's translation is as follows:

The adopted son is not to take away (with turn when he is passing from the family of his birth to that of adoption), the Gotra and Riktha of the progenitor; the pinda is follower of the Gotra and the Riktha, the Swadha (or spiritual food) goes away absolutely from the giver.

6. Sir William Jone's version is as follows:

A given son must never claim the family and estate of his natural father; the funeral cake follows the family and estate; but of him, who has given away the son the funeral oblation is extinct.

7. Mr. Sarkar on the basis of his translation was of opinion that the adopted son's existing proprietary right in a natural father's property becomes extinguished otherwise, says the learned author:

Why should he not take away with him such property or his share in the same when ho is leaving the progenitor's family for joining the adopter's family ?' see Hindu law p. 243 (6th Edn.),

8. But it is to be noticed that this view is directly opposed to Mr. Sarkar's earlier view as stated in Tagore's lecture on adoption 1888 published in 1899, pp. 389 and 390. It is conceded that the adopted son would take away with him his own self-acquired property and it is difficult to see why he should not take away with him property to which he is absolutely entitled although he has acquired such property by inheritance from his natural father. The authors of Dattaka Mimansa and Dattaka Chandrika cite the text of Manu and explain the same by stating that from the very act of giving (in adoption), the extinction of the giver's son's proprietary right in the giver's property and the extinction of the giver's gotra-take place. With regard to these texts we agree with the observations of the learned Judges of the Madras High Court in Venkata Narasimha v. Rangayya [1906] 29 Mad. 437. The learned Judges said:

We do not think that there is anything in these passages which necessarily carries with it the idea that the adopted son is divested of property which is his own absolutely at the time of adoption. The more correct view seems to be that by the adoption the filial relationship as the author of the Chandrika says, is extinguished in one family and is creatod in the other family, and that thereafter the person adopted cannot claim or take any property in his natural family by virtue of the extinguished filial relationship therein. The fact that under the Dayabhaga law in force in Bengal a son has no vested coparcenary interest with his father in ancestral property and that his interest in ancestral property of the father only accrues on the father's death rather favours the view that Mimangsha when adopting the interpretation of the Chandrika had in mind the loss of rights that might accrue after the date of adoption rather than rights to property which had already vested.

9. In the case of Maniram Kolita [1880] 5 Cal. 776 referred to above their Lordships of the Judicial Committee observed as follows with regard to the proprietary right of a son by inheritance from his father under the Dayabhaga school of Hindu law:

The proprietary right of a son by inheritance from his father is expressly ordained, because the wealth devolving upon sons benefits the deceased (Dayabhaga Chap. 11, Section 1 Vol.38) and the right of succession of other heirs to the property is also founded on competence for offering oblations at obsequies (18th verso); see also verso 32. 'But a son, even if by the mere fact of his birth he delivers his father from the hell called put, is according to the Dayabhaga, excluded from certain causes from inheritance in the same manner as other heirs (see the Dayabhaga, Chap. 5, paras. 4 5 and 6), but, if he once succeeds, the estate is not divested for anything less than degradation, though causes which would have excluded him if they had existed before succession arise after the estate has descended.

10. It will thus appear that nothing short of degradation can deprive a Dayabhaga son of property inherited from his father. Even if the case in 40 Bom. be regarded as good law this does not assist the appellant as ,the decision was based on the peculiar constitution of the Mitakshara joint family by which right to property of the father arises from the birth of the son and is liable to be divested if the son is transferred from the joint family to some other family by adoption which causes the extinction of the filial relationship if the adoption takes place during the lifetime of the father. The 40 Bom. case has gone a step further and has held that the same rule applies where the adoption takes place after the death of the father. Under the Dayaghaga law after the son succeeds absolutely there is no divestment except in the extreme case of degradation which is provided for by the Dayabhaga Chap. 1, paras. 31, 32 and 33 which provides that the son's degradation of his being deprived of caste causes an extinction of all his property, whether acquired by inheritance, succession, or in any other manner. The text of Dattaka Mimansa and Dattaka Chandrika are equivocal even if the view most favourable to the appellant is taken. There is nothing in the decision of the Judicial Committee of the Privy Council in Raghuraj v. Subhadra A.I.R. 1928 P.C. 87 which compels us to hold that their Lordships expressed their approval of the actual decision in the Dattatraya v. Gobinda [1916] 40 Bom. 429.

11. For the reasons given above we think that the view taken by the Courts below is right and this ground of appeal must fail.

12. It remains to notice the minor points raised on this appeal. It is said that even if the defendant has got the right to moiety share of the rent that right has become extinguished by the adverse possession by the plaintiff for more than the statutory period as defendant has not taken any share of the rent since his natural father's death. The findings of the lower appellate Court on this part of the case are conclusive against the appellant. His findings are : (1) The same Tahsildar used to collect rents both for plaintiff and defendant and their mutual dues to be adjusted by him by set-off, (2) collection papers of the plaintiff were not produced and there is nothing to show plaintiff realized more than his half share of rent. No interception of rent and profits for more than 12 years has been established on the side of the plaintiff. The ground of adverse possession consequently fails.

13. The next ground urged for the appellant is that as the plaintiff is the sole registered proprietor in respect of the two annas share of the Taluqs within which the tenure in question is situate defendant is bound to pay the entire rent to the plaintiff appellant having regard to the provisions of Section 78, Land. Registration Act (7 of 1876) B.C. read with Section 60, Ben. Ten. Act. Section 60 in terms does not apply as the defendant is not setting up the fitle of a third person to receive the half share of the rent but setting up title to recover such moiety share in himself. All the grounds urged in appeal fail which must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //