SUNDARAMMA Vs. VENKATASUBBIER

JUDGEMENT

(1.) The question in this appeal is whether the adopted son of a man whose only wife had died before the adoption becomes the son of that wife so as to be her legal heir. This question does not seem to have been directly decided in any case and therefore it will be necessary to see how far the authorities support the proposition. In the first place it is necessary to consider the principles which govern adoption under the Hindu Law. In Uma Sunker Moitro V/s. Kali Komul Mozumdar (1880) I.L.R. 6 C 256 (F B) Romesh Chander Mitter, J. observes: The theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect to the paternal and maternal line, and his complete substitution into the adopter's family, as if he were born in it,

(2.) This theory has been upheld by the Privy Council in Nagindas Bhugwandas V/s. Bachoo Hurkissondas (1915) I.L.R. 40 B 270 at 288 : 30 M L J 193 (P C). The theory then appears to be that the adopted boy by a legal fiction becomes the natural son of the adoptive father and presumably also of his wife. The question here is not complicated by the existence of two or more wives. In Narasimha Appa Rao V/s. Parthasarathy (1913) I.L.R. 37 M 199 at 220 : 26 M L J 411 (P C) their Lordships of the Judicial Committee observe : "Only one wife can receive the child in adoption so as to step into the position of being its adoptive mother" and again "to hold that a child could bear such a relationship to more than one mother would be entirely contrary to settled law." This conclusion appears to be based on the theory of adoption, namely, that the adopted son becomes the natural son of the father, and the only way in which he can be deemed to be the natural and legitimate son of his father is by a fiction that he is the son of that father's wife also. A Hindu son has to offer oblations not only to his father's ancestors but also to his mother's ancestors. When, therefore, he is adopted into a new family, he becomes the son of that family and presumably he would offer oblations not only to his adoptive father's ancestors but to his father's wife's ancestors as well. It would be straining the legal fiction of adoption too far to hold that the boy need have no mother at all, although this may possibly be necessary in the case of an adoption by a bachelor, but that is an exceptional case with which we are not concerned now. In a family in which there were two wives, it was held that the wife who joined with the father in making the adoption although the junior wife was the mother of the boy in preference to her senior co-wife. Annapurni Nachiar V/s. Collector of Tinnevelly (1895) I.L.R. 18 M 277 : 5 M L J 121. This was upheld by the Privy Council in Annapurni Nachiar v.Forbes (5). Wherever possible therefore a mother should be found for the boy and the fact that such a mother died before the adoption can be no obstacle in view of the fictitious character of the whole principle of adoption.

(3.) It is contended for the respondent that even when the adoptive father's wife is alive she does not become the adoptive mother unless she actively participates in the adoption by receiving the adopted boy. This contention is apparently based on the literal meaning of the word "prathigrahitha " which is ordinarily translated as adoptive. Its literal meaning is " receiving " and it is contended that unless the boy is actually received by the woman she does not become his adoptive mother. It is well settled that a man can adopt without the consent of his wife and even against her consent and in either case the adoption is valid. If the adoption is valid and the principle is recognised that the adopted boy ought in theory to have a mother, it is difficult to accept the proposition that he is not to have any mother at all unless she actually receives him in adoption. The argument that the wife becomes the adoptive mother is based on the text of Nanda Panditha in Dattaka Mimamsa, Part 1, verse 22: in consequence of the superiority of the husband by his mere act of adoption, the affiliation of the adopted, as son of the wife, is complete in the same manner as her property in any other thing accepted by the husband.