TEWARI RAGHURAJ CHANDRA Vs. RANI SUBHADRA KUNWAR

JUDGEMENT

(1.) [The judgment after dealing with other points in the case proceeded :] The last question is "What in truth is the rule of Hindu law-the personal law of Raja Chandra Shekhar-in its bearing on Krishna Narain's claim to inherit on his death as the senior direct descendant of Eaja Chandra Shekhar's eldest-born brother, It is contended that Hindu law, properly understood, contains nothing which militates against the right of a bora brother to be the brother, whose statutory right of succession is provided for by Section 22(5) of Act III. of 1910. The matter, it is said, does not depend on the rights of succession, as a member of a new family by adoption, which Raja Chandra Shekhar might have had to properties belonging to other members of the house of Sissendi, but on the survival of the blood relationship for the legal purposes of Hindu law between Raja Chandra Shekhar and hi a brothers born. Unless it can be said that in law the effect of the adoption of Raja Chandra Shekhar was to make Earn Chandra no longer his brother, then by the explicit words of the enactment, Ram Chandra's lineal descendant and no other was next in succession to him.

(2.) It is quite true that for certain purposes the blood relationship of an adopted Hindu remains real and binding after the adoption. For example, his born sister is within the prohibited degrees of affinity. It is true also that authoritative texts of the writings, in which the Mitakshara law was originally expressed, dwell on the matter of inheritance and succession in connection with adoption in a way that leaves some of the consequences of adoption unexpressed. They define the rights of the person adopted as a member of his adoptive family, but they do not in terms complete the matter by prescribing his entire expulsion from, his original family and the severance of his born brothers from him and from the name of brother for all purposes connected with succession to property. Hindu law, however, has not stood still. Those texts have been elucidated and applied since 1869 in a great number of decisions which have authoritatively settled the law, and in construing the Acts the personal law applicable, when once it is held that the Acts imply the application of personal law, is the personal law as it exists at the time when the question in the suit has to be decided.

(3.) It is not true to say that by Hindu law an adoptee only loses his consanguinity for purposes of succession. Adoption has been spoken of as "new birth" iu many cases, a term sanctioned by the theory of Hindu law. Nor is the expression a mere figure of speech. The theory itself involves the principle "of a complete severance of the child adopted from the family in which he is born...and complete substitution into the adoptive family, as if he were born in it" (Ntigindas JJhuywandas V/s. Bachoo Hur-kimonda (1915) L.R. "The fundamental idea...[is] that the boy given in adoption gives up the natural family and everything connected with the family" (Datiatraya Sakharams case, 40 Bom. p. 435). As has been more than once observed, the expressions "civilly dead or as if he had never been born in the family" are not for all purposes correct or logically applicable, but they are complementary to the term "new birth." It is not merely the ceremonies for the natural father, who has given, or for the adoptive father, who has taken, a son in adoption that are involved, but those for the ritual number of ancestors in each case, "Let no man give, or accept, an only son, since he must remain to raise up a progeny for the obsequies of ancestors,... He who means to adopt a son,...may receive as his son by adoption,... even one remotely allied.... The class ought to be known, for through one son the adoptee rescues many ancestors" (Vasishtha, cited in Mayne's Hindu Law, Section 107). Consideration of the intimate connection, which primitive Hindu laws established between the funeral offerings and ceremonies on behalf of the dead and the right of succession to his property, will show that ceremonially the adopted son only becomes newborn in the family of his adoptive father, so as to be qualified to provide efficaciously the offerings of which the dead have need, by first dying in the family of his birth, out of which he is given by his natural to his adoptive parent, and in which his offerings will be no longer efficacious or desired. If such a person's natural brother were to be made the heir to the taluq, how could he, still a member of the family of his birth and bound to make the necessary offerings for his own ancestors, be qualified to do 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? Their Lordships think that these considerations are conclusive.