SOUNTHARAPANDIAN AIYANGAR (DECEASED) Vs. PERIAVEERU THEVAN

JUDGEMENT

(1.) The facts of the case are simple. One Pandi Aiyangar died in 1890 leaving his widow Pichai Ammal and daughter Kothai Animal. Kothai Ammal was married to one Doraiswami Aiyangar. She pre-deceased her mother in 1900 leaving a male child who died shortly after. Pichai Ammal died in 1923. Meanwhile, on the 26th May, 1910, Doraiswami Aiyangar adopted the 2nd defendant Alwar Aiyangar. The 2nd defendant claims to succeed to the property of Pandi Aiyangar on the death of Pichai Ammal on the ground of his being related as daughter's son to Pandi Aiyangar by reason of his adoption. The plaintiffs are persons who would be reversioners to the estate of Pandi Aiyangar if the 2nd defendant cannot claim by reason of his adoption. Both the lower Courts found in favour of the adoption and dismissed the plaintiff's suit. When the case came on before our learned brother Sundaram Chetty, J., he referred the case to a Bench of two Judges noting that the decision in Sundaramma V/s. Venkatasubba Ayyar (1926) I.L.R. 49 Mad. 941 : 51 M.L.J. 545 is in favour of the respondent but the view of Devadoss, J., in Venkatasubba Aiyar V/s. Sundaramma (1924) 48 M.L.J. 126, which was reversed in that decision on Letters Patent Appeal, is in favour of the appellant. He also referred to Veeranna V/s. Sayamma (1928) I.L.R. 52 Mad. 398 : 56 M.L.J. 401 as possibly against the suggestion that the adoption will relate back to Kothai Ammal 's lifetime. He referred the case to a Bench of two Judges who referred to a Full Bench.

(2.) The decision in Veeranna V/s. Sayamma (1928) I.L.R. 52 Mad. 398 : 56 M.L.J. 401 in my opinion does not give any trouble; nor is there any need to rely on any theory of the adoption relating back to Kothai Ammal's lifetime. When Pichai Ammal died in 1923 and when succession to the estate of Pandi Aiyangar opened the 2nd defendant was in existence. If he can be regarded as the daughter's son of Pandi Aiyangar at that time, he can succeed to the property; if he cannot be so regarded his claim has to be negatived. I do not see any need to date the adoption back to any earlier period.

(3.) The learned Advocate-General who appears for the appellant contended that the 2nd defendant cannot be regarded as the daughter's son of Pandi Aiyangar, because he cannot be regarded as the son of Kothai Ammal. He contends that because Kothai Ammal died in 1900 and the adoption was made in 1910 Alwar cannot be regarded as the son of Kothai Ammal. His contention is that where a boy is adopted by a male, only the wife who was then in existence and who took part in the act of adoption along with her husband can be regarded as the mother. Therefore in the case of an adoption by a widower the adopted boy has no mother. Neither the pre-deceased wife (nor, if there were more, any one of them) nor any wife whom he marries subsequent to the adoption can be the mother of the adopted boy. This is the primary argument. He develops this primary argument by pointing out some difficulties if the opposite view is adopted. He puts the question, - if the opposite view is upheld which of the pre-deceased wives when there were many should be regarded as the mother? and similarly which of the subsequently married wives if there are more than one should be regarded as the mother? In my opinion the difficulties in working out the details of the opposite view are not strictly relevant though they may be used in support of an argument showing its inconvenience. Those difficulties do not arise in the present case, for Doraiswami Aiyangar had married only one wife. In my opinion therefore the appellant must succeed on the strength of his primary argument, namely, only the wife that actually participates in the adoption can be regarded as the mother and the difficulties in the acceptance of the opposite view need not at this stage be referred to. If the main argument be found to be correct, without adverting to these difficulties the appellant succeeds. But if the main argument cannot be upheld, the further possible difficulties in a case of plurality of wives do not arise in this case. I will therefore proceed to consider what I describe as the main argument of the appellant. He concedes that when a widow adopts, the adoption enures to the benefit of the deceased husband. But he argues this analogy does not apply when a widower adopts and the adoption by the widower does not enure to the benefit of the deceased wife. The reason for this distinction according to him is that whereas the theory of the Hindu Law and the Hindu Social System is that the husband even after his death survives in his wife, there is no such theory that the wife when she dies survives in her husband and therefore only the wife of the adopter who actually participates can be the mother. Now, the object of adoption is to have a substitute for a natural born son. Accordingly the theory of Hindu lawyers has always been that apart from the fiction of the adoption itself the adopted son should be as complete a substitute for the natural born son in all respects as one can possibly make. Vide Nagindas Bhagwandas V/s. Bachoo Hurkissondas (1915) L.R. 43 I.A. 56 : I.L.R. 40 Bom. 270 at 288 : 30 M.L.J. 193 (P.C.). In other respects, except for the fact of his birth, he should occupy the position of a natural born son; there should be nothing extraordinarily peculiar or unnatural about him. One of the most inevitable features about every human being is that he must have two parents, i.e., a father and a mother. Similarly every adopted son should have an adoptive father and an adoptive mother and if there is no difficulty in pointing to an adoptive mother of the boy, one ought to do so unless there is something in the texts of the decisions compelling us to hold that only the person who actually participated in the adoption can be regarded as the mother. As already mentioned, the decision in Sundaramma V/s. Venkatasubba Ayyar (1926) I.L.R. 49 M. 941 : M.L.J. 545 of Phillips and Madhavan Nair, JJ., is against the appellant. But the appellant attacks the correctness of that judgment on the ground that the learned Judges have not given full weight to the verse in the Dattaka Mimamsa, Section 6, verse 50, have not properly construed the passage, and have given undue weight to Section 1, verse 22 of the same book. I will first refer to the former passage because this furnishes the main ground of the appellant's argument. The verse runs thus: "The forefathers of the adoptive mother only are also the maternal grandsires of sons given etc...." Here the original for the word adoptive mother is Prathigrahithriyamatha . Now the etymological meaning of the word Prathigraha is undoubtedly taking or receiving. As all adoptions begin with a taking or a receiving, once the adopted boy becomes a member of the adopting family, the members of the family may be described as adoptive father, adoptive mother, adoptive grandfather and so on and all these may be described as Prathigrahithru father, Prathigrahithri mother and so on, such expressions being merely one method of describing the adoptive father and adoptive mother and not necessarily involving that the particular relation is the person who has taken. At present I only indicate that the etymological meaning may not be the strict construction of the term. We have to see therefore whether the phrase in the verse of Dattaka Mimamsa should be taken in the etymological sense or generally in the sense of an adoptive mother. Now it is noteworthy that this text whenever it has been translated has always been translated with the word "adoptive mother" and not "receiving mother". The first translation was by Mr. D. Sutherland who translates it in that way. His translation is to be found in Stokes Hindu Law books. In Uma Sunker Moitro V/s. Kali Komul Mozumdar (1880) I.L.R. 6 C. 256 (F.B.) Mitter, J., delivered the leading judgment. At page 260 he discusses verses 50 to 53 of Dattaka Mimamsa. Section 6, V/s. 53 refers to the theory underlying the adoption, namely, that there must be a substitute for the legitimate son. Then referring to vv. 51 and 52 it was pointed out that the author says there is no difference between the adopted and the legitimate son in respect of his relationship to his adoptive father's family etc. At page 261 finally Mitter, J., gives Mr. Sutherland's translation of V/s. 50 without any amendment of the translation as the learned Judge has previously done in the case of V/s. 53. But apart from the translation of the particular verse, one may perhaps look at the context in which the passage occurs. The author was discussing the effects of an adoption. In the previous verses he was referring to other kinds of affiliation, such as Dvayamushyana and Krittrima, etc. and he refers to the adoption strictly so- called as Sudha Dattoka, i.e., absolute adoption, and is contrasting the effects of the other kinds of affiliation with the strict kind of adoption and he points out that the adopted boy is completely severed from his natural family. The object of the verses is to say that he is a perfect substitute for a legitimate son, that he has nothing more to do with his natural family and he becomes related to all the members of the adopting family as if he were born there. The text clearly shows that the phrase Prathigrahithriyamatha was used in the sense of an adoptive mother and not in its etymological sense. The decision in Uma Sunker Moitro v. Kali Komul Mozumdar (1880) I.L.R. 6 C. 256 (F.B.) which established the right of the adopted son to succeed to the other relations of the adoptive mother was affirmed by the Privy Council in Kali Komul Mozumdar V/s. Uma Sunker Moitra (1883) L.R. 10 I.A. 138 : I.L.R. 10 Cal. 232 (P.C.). In Bhattacharya's Hindu Law, Vol. I, page 357 this verse of Dattaka Mimamsa was quoted and after translating thus "only the forefathers of the mother that accepts in adoption are also the maternal grandsires of the son adopted and the rest" the learned author observes: "In the above passage, the word eva (only) is meant to exclude the paternal ancestors of the natural mother." Who the ancestors are we have to find otherwise, not certainly by the use of the word Prathigrahithri in this verse. If a wife of the adopter and her father can be regarded as adoptive mother and adoptive maternal grandfather, they are the only mother and maternal grandfather. That is what the verse says and the natural mother and natural maternal grandfather should be entirely forgotten. Simply because the verse uses the word Prathigrahithri in attempting to say so, i.e., in attempting to exclude the natural ancestors, we are not to infer that the receiving mother only can be the adoptive mother and no other. But there is another way of approaching the question and of testing whether the word Prathigrahithri must be regarded as used in its etymological sense. Even where the adoptive father is referred to in Dattaka Mimamsa he is referred to as Prathigrahithri and one may argue that as it is not always a male that takes the boy in adoption because a widow can also adopt, the word Prathigrahithri is not used in its etymological sense but used in a general sense of an adoptive father. But the appellant objects to this inference that according to the doctrine of Dattaka Mimamsa a widow cannot adopt at all and it is by reason of other texts accepted by custom and judicial decisions that the widow can adopt in Southern India and in some other provinces. In fact, the strict view of the Dattaka Mimamsa is still followed in Mithila. I therefore turn to the Dattaka Chandrika to see if I can get a similar argument from that work. There also in Section 3, verse 17 the adopted son is referred to as the Sudha Dattaka, absolute adopted son, in contrast to other forms of affiliation and it was said that he offers oblations to the father and the other ancestors of the adoptive mother only. This passage corresponds to Section 6, verse 50 of the Dattaka Mimamsa and uses the same word Prathigrahithriyamatha. But it cannot be said of the Chandrika that an adoption by a widow is prohibited. In Section 1, verse 31, Dattaka Chandrika expressly quotes the text of Vasishta: Let not a woman either give or receive a son unless with the assent of her husband.