SUBBA RAO - (1.) THE following Judgment of the court wu delivered by
(2.) THESE two appeals by certificate arise out of Special Civil Suit No. 47 of 1946 filed by Nagamma, wife of Chanbasappa, for partition and possession of one -sixth share in the plaint scheduled properties with mesne profits. Chanbasappa died possessed of a large extent of immovable property on 8/01/1944. He left behind him three wives, Nagamma, Guramma and Venkamma and two widowed daughters, Sivalingamma and Neelamma, children of his predeceased wife. It is alleged that at the time of his death Venkamma was pregnant and that she gave birth to a mate child on 4/10/1944. It is also alleged that on 30/01/1944, Nagamma, the senior most widow, took her sister's son, Malappa, in adoption. A few days before his death, Chanbasappa executed gift and maintenance deeds in favour of his wives, widowed daughter, a son of an illegitimate son, and a relative. Long before his death, he also executed two deeds -one a deed of maintenance and another a gift deed of some property in favour of Nagamma. We shall deal with these alienations in detail in appropriate places. The plaintiff, one of the three surviving widows of Chanbasappa, filed the aforesaid suit for recovery of her share after setting aside the alienations made by her hus - band on. January 4 and 5, 1944. To that suit, Guramma and Venkamma, the other two widows of Chanbasappa, were made defendants 1 and 2; the alleged adopted son, defendant 3; the alleged posthumous son, defendant 4; and the alienees, defendants 5 to 8. Defendant 3 naturally supported the plaintiff, and the other defendants contested the suit. The. contesting defendants denied the factum and validity of the adoption of defendant's by the plaintiffs and they asserted that defendant 4 was the posthumous son of Chanbasappa by Venkamma, the second defendant. The alienees sought to sustam. the validity of the alienations in their favour. As many as, 12 issues were, framed in them case, The learned Civil judge found that defendant 3 was taken in adaption by the plaintiff on 30/01/1944, but,it was invalid in law; that. defendant 4 was born to defendant 2 by the deceased; that the plaintiff had. failed to prove that the deeds executed by -Chanbasappa. on 4/01/1944, in favour of defendants 2, 5, 6, 7 and 8 were vitiated by fraud; and that the plaintiff was entitled to one -sixth share in the suit. property and for partition and recovery of the same. In the result he passed a decree for partition and delivery of the plaintiff's one -sixth share in the property. He also held that defendants 1 and 2 would each be entitled to one sixth; share and that defendant 4 would be entitled to three -sixths share therein. He declared that the deeds executed by the deceased in favour of the plaintiff as well as in favour of the defendants were binding on the parties to the suit. He directed an enquiry as to the future mesne profits from the date of the suit. The plaintiff and defendant 3 preferred an appeal to the High court, being First Appeal No.341 of the 1950 against the decree of the Civil Judge insofar as it went against them. The High court agreed with the learned Civil Judge that defendant 4 was the posthumous son of the deceased by the second defendant; it accepted the finding of the learned Civil Judge that the adoption took place; but it also held that it was valid in law. It declared that the deeds executed by the deceased on January 4 and 5, 1944 in favour of defendants 6, 7 and 8 were invalid as also the gift over in favour of defendant 5. It held that, as defendants 1 and 2 were getting a share in the property, they were not entitled to separate maintenance given to them under the deed executed by their husband and directed that property also should be brought into the hotchpot and divided between the Parties. It declared that the plaintiff and defendants 1 and 2 were each entitled to 4/27 share in the suit property, that defendant 3 was entitled to 1/9 share therein, and defendant 4 was entitled to 4/9 share therein. It also gave further directions in the matter of partition, costs and mesne profits. Plaintiff and defendant 3 preferred Civil Appeal No. 335 of 1960, and defendants 1, 2, 4 and 5, the legal representatives of defendant 7 and defendant 8 preferred Civil Appeal No. 334 of 1960 to this court against the decree of the High court insofar as it went against them.
(3.) AT the outset it would be convenient to clear the ground and focus our attention on the outstanding points of difference between the parties. The factum of adoption of defendant 3 by the plaintiff is accepted, but its legality is questioned. The fact that the 4th defendant is the posthumous son of Chanbasappa by the 2nd defendant is also not disputed. In the result the following questions only remain to be answered in the present appeals: (1) Whether the adoption of defendant 3 by the plaintiff was void as it was made at a time when defendant 4 had already been conceived. (2) Whether the alienations in favour of defendants 2, 5, 6, 7 and 8 are binding on the members of the family. And (3) What is the share of an adopted soil of a sudra in competition with the natural born son? Mr. Viswanatha Sastri, appearing for defendants 1 and 4 (Appellants 1 and 3 in Civil Appeal No. 334 of 1960) contends that the adoption of defendant 3 was void inasmuch as at the time of the adoption defendant 4 had been conceived. He presses on us to extend the legal position, by analogy, of the right of a son in the womb at the time his father made an alienation of a family property to set aside that alienation, to that of an adopted son in similar circumstances. The Hindu law texts do not throw much light on the subject. Dattaka Chandrika and Dattaka Mimamsa are the treatises specially composed on the subject of adoption. Nanda Pandita cites the following texts of Atri and Cankha in Dattaka Mimasa: 'By a man destitute of son only must a substitute for the same be adopted'. (Atri). 'One to whom no son has been born, or whose son has died having fasted, etc ' (Cankha). In section 13, Nanda Pandita explains that the term 'destitute of a son' must be understood to include a son's sort and grandson. In Dattaka Chandrika the relevant part of the text of Cankha is stated thus: 'One destitute of a son' -see s. I, 4. 'One having no male issue' -see s. II. 1. These texts ex facie do not equate a son in existence with a son in the womb. If the authors of the said treatises intended to equate the one with the other, they would not have left it in doubt, for such an extension of the doctrine would introduce an element of uncertainty in the matter of adoption and defeat, in some cases, the religious object underlying adoption. It is now well settled that the main object of adoption is to secure spiritual benefit to the adopter, though its secondary object is to secure an heir to perpetuate the adopter's name. Such being the significance of adoption, its validity shall not be made to depend upon the contingencies that may or may not happen. It is suggested that an adoption cannot be made unless there is certainty of not getting a son and that if the wife is pregnant, there is a likelihood of the adopter begetting a son and, therefore, the adoption made is void. The texts cited do not support the said proposition. Its acceptance will lead to anomalies. Suppose a husband who is seriously ill and who had no knowledge of the pregnancy of his wife, makes an adoption; in such an event, the existence of a pregnancy, of which he has no knowledge, invalidates the adoption, whether the pregnancy turns out to be fruitful or not. If he has knowledge of the pregnancy, he will not be in a position to take a boy in adoption, though ultimately the wife may have an abortion, or deliver a stillborn child or the child born may turn out to be a girl. Further, as it is well settled law that a son includes a son's son and a grandson of the son, the pregnancy of a son's widow or a grandson's widow, on the parity of the said reasoning, will invalidate an adoption. We cannot introduce such a degree of uncertainty in the law of adoption unless Hindu law texts or authoritative decisions compel us to do so. There are no texts of Hindu law imposing a condition of non -pregnancy of the wife or son's widow or a grandson's widow for the exercise of a person's power to adopt. The decisions of the High courts on the subject discountenance the acceptance of any such condition. But there is a decision of Sudr Adalut in Narayana Reddi v. Vardachala Reddi, wherein it was observed that it was of the essence of the power to adopt that the party adopting should be hopeless of having issue. Mr. Mayne S.A. No. 223 of 1859, M.S.D. 1859, p. 97. commenting upon the said observation drew a distinction between a husband taking a boy in adoption knowing that his wife was pregnant and doing so without the said knowledge and stated: 'Ifa wife, known to be pregnant at the time of adoption, afterwards brought forth a son it might fairly be held he was then in existence to the extent of precluding an adoption....' A division bench of the Madras High court in Nagabhushanam v. Seshammagaru criticized the opinion of the pandits as well as the observation of W. Mayne, and came to the conclusion that an adoption by a Hindu with knowledge of his wife's pregnancy was not invalid. The Bombay High court in Shamavahoo v. Dwarkadas Vasanji accepted the said view. A division bench of the Allahabad High court in Daulat Ram v. Ram Lal followed the Madras and Bombay decisions. No other decision has been brought to our notice either taking a different view or throwing a doubt thereon. All textbooks -Mayne, Mulla, Sarkar Sastri -accepted the correctness of the said view without any comment. ;