Jagat Narayan, J. - (1.) This is a second appeal by the defendants in, a suit for declaration and partition.
(2.) Lachhman plaintiff alleged that he was adopted by Moti defendant No. 1 in Section 1995, that Moda defendant No. 2 who is the natural son of Moti was born after his adoption, and that after the birth of Moda his father turned him' out from his house. He accordingly brought the present suit for a declaration that he was the adopted son of Moti and for possession over half the property of Moti on partition. The trial court found that Lachhman was the adopted son of Moti and was entitled to one-fourth share in Moti's property after his death. It held that ha was not entitled to get the partition effected in Moti's life-time. The suit of Lachhman was accordingly decreed only in respect of the declaration that he was the adopted son of Moti. Both parties preferred appeals against this decision. The ower appellate court held that Lachhman was the adopted son of Moti and Was entitled to get possession over one-fourth share of his property on partition. A preliminary decree For partition was accordingly passed in Lachhman's favour. Against this decision the present second appeal has been filed. 2. It may be mentioned here that the plaintiff has confined his claim only to a share in immovable house property belonging to Moti shown as item No. 1 in the schedule attached to the plaint. So far as the factum of valid adoption is concerned there is evidence on record to prove that Lachhman was duly adopted in accordance with law. The lower appellate court believed this evidence and that concludes the matter. The only question which therefore arises for determination in the present case is whether under the Banaras School of Hindu law an adopted son is entitled to one-fourth of the entire estate as held by the lower appellate court or to one-fourth of the share to which a legitimate after-born son is entitled.
(3.) The lower appellate court has relied on Mulla's Commentary on Hindu Law in which the law has been stated as follows in Article 497 : "Where a son is born after adoption to the adoptive father, (a) the adopted son does not, on a partition between him and the after-born natural son, share equally with him as he would have done if he were a natural son, but he takes (1) in Bengal, one-third of the adoptive father's estate; (2) in Banaras, one-fourth of the estate; and (3) in the Bombay and Madras States, one-fifth of the estate; and (b) if the estate is impartible, the Aurasa son alone succeeds to it." The only authorities cited in support of the above statement of law are two decisions of the Bombay High Court namely Giriapa v. Ningapa, ILR 17 bom 100, and Melappa v. Guramma, (S) AIR 1956 Bom 129. In the former case it was held that as between an adopted son and a natural son the adopted son would take one-fourth share of a share allotted to the natural son and this decision was followed in the latter case. Neither of the authorities thus supports the view expressed by Mulla in Article 497(a) (2).;