SHYAMA CHARAN CHATTOPADHAYA Vs. SRICHARAN CHATTOPADHYA

JUDGEMENT

(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/s. 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/s. 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/s. 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/s. Kollitani [1880] 5 Cal. 776, namely that an estate once vested under the Hindu Law cannot be divested. In the case in Baghuraj V/s. 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."