KARUTURI GOPALAN BEING MINOR BY HIS MATERNAL GRANDFATHER S YOUNGER BROTHER ABBURI VENKATARAYUDU; KARTURI CHIRALAMMA; KARTURI VENKATA RAGHUVULU Vs. KARTURI VENKATA RAGHUVULU AND ANR; KARUTURI GOPALAN

JUDGEMENT

(1.) One Venkanna adopted the plaintiff in 1898. The 1st defendant was subsequently born. Venkanna died in 1902. The 2nd defendant, the Natural mother of the 1st defendant and the adoptive mother of the plaintiff, managed the estate during the minority of the two sons. The suit is for partition for a half share in the family properties. The main contention of the 1st defendant is that the plaintiff is only entitled to a fifth share. The Subordinate Judge, relying on an observation in Raja v. Subbaraya 7 M. 253, held that the two sons were entitled to equal shares.

(2.) The question has been argued at great length before, us. I am unable to agree with the Court below. The parties in this case are Sudras. In Raja v. Subbaraya 7 M. 253, the dispute was between the natural son of a brother and the adopted son of another. It is settled law in Madras, notwithstanding Raghubanund Doss v. Sadhu Churn Doss 4 C. 425 : 3 C.L.R. 523 and Giriapa v. Ningapa 17 B. 100 to the contrary, that, by right of representation, the adopted son would take the share pf his father in. competition with the natural son of another, member of the joint family. That was the only question that arose for decision in the Madras case. At the end of the judgment, the learned fudges say: "If there be such a special -rule as is suggested, it is not applicable at all events to Sudras, among whom the adopted son is declared entitled to take an equal share with a legitimate son who is born subsequently to the adoption." Apart from the text of Vridha Gautama commented on in the Dattaka Chandrika to which shall presently refer, I have not been able to find any authority for this statement. On the other hand, Ayyavu Muppanar v. Niladatchi Ammal 1 M.H.C.R. 45 gave the adopted son only a fifth share in the family properties. Apparently, this decision was not brought to the notice of the learned Judges. In Bombay and Calcutta, subject to the special doctrine which denies the right of representation to the adopted son in a joint family, it has been held that the share of the adopted son among Sudras is only a fourth of that of the natural son. See Raghubanund Doss v. Sadhu Churn Doss 4 C. 425 : 3 C.L.R. 534, Giriapa v. Ningapa 17 B. 100 and Bachoo Hurkisondas v. Nagindas Bhagwandas 23 Ind. Cas. 912 : 16 Bom. L.R. 263.

(3.) On the authority of the Rishis and of the Smrithi writers, I feel no hesitation in holding that the adopted son is not entitled to share equally with the natural son. (1) The well-known text of Vasistha is in Chapter XV, sloka 9, "where a son has been adopted, if a legitimate son be afterwards) born, the adopted son shares a fourth part." (2) Katyayana is quoted in the Dayabhaga and in Colebrooke s Digest, Vol. II, page 348, as saying: "A son of the body being born, the adopted sons of the same class take one-third of their portion." But in the Madanaparijatha and Viramitrodaya, the sage is quoted as allotting only a fourth part. (3) Baudhayana takes the same view as Vasishta: see Dattaka Mimamsa, Section 5, sloka 42. (4) Manu in Chapter IX, sloka 163, says: The aurasa son alone is the sole heir of his father s wealth; but as a matter of compassion, he may give main tenance to the rest." The Mitakshara inter prets this passage as applying to the other class of sons who are devoid of good qualities," and says that the general rule as to a fourth share, is not affected by Manu s text.