ANANDI RAM PAI Vs. HARI SUBA PAI

JUDGEMENT

(1.) The sole question argued in this second appeal is whether, under the Hindu Law, governed by the Mitakshara School, the adoptive father or the adoptive mother is the preferential heir to an adopted son. According to the Mitak-shara, when a son dies, leaving his parents as his heirs, the mother succeeds to son's estate before the father. Both the Courts below have, however, held in the present case that the rule in question applies only to the estate of a natural-bron but not to that of an adopted son dying.

(2.) The learned Subordinate Judge says: The reasons which give a preference to a mother by birth over a father by birth do not, I think, apply in the case of an adoptive mother. By many commentators, a mother by birth is preferred to the father by birth upon considerations derived from a comparison of the respective degrees in which mother and father share in the composition of the son, while the Mitak-shara prefers her on the ground of propinquity.

(3.) Vijnaneshwara puts the preference of the mother to the father on two grounds, which, as West, J., has rightly observed in his judgment in Lallubhai Bapubhai V/s. Manhuvar bhai 2 B. 388 p. 439 are of an artificial character. They are (1) that the word pitarau (parents), which occurs in Yajnyavalkya's text specifying the heirs in the case of obstructed succession is the abbreviation of two words forming a conjunctive compound, matapitarau(parents), in which the word mata (mother) comes before the word pitru (father;) and (2) that the mother's propinquity is greater than the father s. (The Mitakshara, Section III, Secs.2 and 3, Stokes's Hindu Law Books pp. 441 & 442).