P L D 1952 Dacca 357 (PLP)

AKBAR, J.

These two appeals have been heard together. 170 of 1945 is by defendants Nos. 1 (ka), 1 (kha),12 and

13. Appeal No. 177 of 1945 is by the defendant No.

16. The suit out of which these appeals arise was filed by the plaintiff for declaration of his title to th share of the proper ties described in the Schedule to the plaint and for joint possession. The following genealogical table will explain the question in controversy : | Chhatranarayan ____________________________|_________________________ | | Trahiram Debidas Golak ______________________________| ________________________|______________________________ | | | | Jagat Raj Chandra Jyotish Satish died in 1910 died in 1906 died in 1906 | | =Jogmaya | | (adopted son) | |___________________ | __________________________|__________________________ | | | | | | Manindra Fanindra Dhirendra Sudhindra | | | |__________________ | __________ | ___________ | | | | Arun Sripati |________________________________ ________________________________|____________________________ | | | | Kali Mohan Dakshina Ranjan Monmohan Sasanka =Sukhoda =Hemnalini | (died before | | the suit) ____|__________ __________ | ___________ | | | | Joya Kumar Anil Kumar Narendra Amarendra Chhatranarayan's properties were inherited by his sons Trahiram and Debidas in equal shares. Debidas's 8 as, share was inherited by Golak. Trahiram executed a will in 1882 by which he bequeathed his 8 as. share to the 4 sons of his nephew Golak as follows :-Jagat 6 as., Rajchandra 4 as., Joytish 3 as., Satish 3 as. It was also provided in the will that if any of these 4 grandsons died childless, his share would devolve upon the other grandsons. Now the plaintiffs case is that Golak died intestate leav ing 4 sons-Jagat, Rajchandra, Jyotish and Satish who formed, a joint family under Dayabhaga school of Hindu Law. Jagat being the eldest acted as the Karta of the family. Jagat died leaving his sons Kali Mohan, defendant No. 1, Dakshinaranjan, defendant No. 2, Monmohan and Sasanka as his heirs. On Monmohan's death, his sons Narendra, defendant No, 3 and Amarendra, defendant No. 4 inherited his share. Sasanka died childless. On Jagat's death, Rajchandra became the Karta of the family. In 1926 Rajchandra died leaving his sons Manindra defendant No. 5, Fanindra, Dhirendra, defendant No. 6 and Sudhindra, defendant No. 7 as his heirs. Fanindra died leaving a widow Manibala, defendant No.

8. On Rajchandra s death, Kali Mohan managed the joint family as Karta. On the I2th December 1906, Jyotish died childless survived by his widow Jogmaya Dassi. Two days before his death, he executed a will giving his widow Jogmaya power to adopt 3 sons in suc cession with the limitation that her choice must fall upon the sons of his brothers, Jagat, Rajchandra and Satish. On the 25th February, 1937, Sitanath the youngest son of Satish was taken in adoption by Jogmaya Dassi. Sitanath as adopted son of Jyotish is asking for a declaration of his title to th share of the suit properties and for joint possession. He also asked for declaration that the documents and Khatians which were pre pared by the defendants in collusion with the another may be declared void and inoperative. Thirteen written statements were filed. They all challeng ed the validity of the adoption. In this appeal, however, we are concerned only with defendants appellants Nos. 1 ka, 1 kha, 2, 4, 12, 13 and

16. Defendant No. 1 having died, his heirs 1 ka and 1 kha have been substituted in his place. Defendants Nos. 1, 2 and 4 filed a joint written statement challenging the validity of the adoption. They contended that on Jyotish's death, the properties which he had got under Trahiram's will passed to his brothers and as such plaintiff had no title to the said properties, It was further contended that Golak left a will in 1888 by which he gave 6 as. to Jagat, 3 as. 6 ps. to Rajchandra, 3 as. 3 ps. to Satish and Jyotish each. So, according to them, the plaintiff's share cannot be more than 1 anna and 7J pies. It was also contended that all the proper ties mentioned in the Schedule were not joint properties and that Jagat who was a Sheristadar of the Judge's Court at Chittagong had acquired some of those properties with his own money and possessed them separately. According to them, there was separation of the joint family in 1910 for the purpose of better management, they held some of the proper ties jointly which were ultimately partitioned in 1918. They also took the plea of limitation and adverse possession. Defendant No. 12, Sukhoda, wife of defendant No. 1 Kali Mohan, defendant No. 13 Pramila Bala Dutt and defendant No. 16 Amir Hossain Dovasi filed separate written statements claiming certain properties as bona fide purchasers for value. The learned Subordinate judge held that the adoption of the plaintiff was invalid in law and hence he dismissed the suit without dealing with the other issues. On appeal, the High Court held that the adoption of the plaintiff was valid in law and remanded the case for decision on other material issues. The learned Subordinate judge has now found (1) that the plaintiff as the adopted son is entitled to inherit 1 as. 6 ps. share which Jagat got under the will of Trahiram; (2) that there being no probate of Golak's will, all his sons will get equal share in his estate, in other words, plaintiff will get 2 as share in the ; properties which Jyotish inherited from his father Golak ; (3) that the disruption of the joint family took place in 1918 ; (4) that lot Nos. 2, 14, 80, 91, 95 to 98, 102 to 104, 137 to 141, 15,8, 172, 237 to 251 and 408 to 415 did not form part of the joint family properties. He accordingly decreed the plaintiff's claim to the extent of 3 as. 6 ps. in all the suit properties except the lots mentioned in clause No. 4 above. Mr. Nandi who appears for the appellants in appeal No. 170 has raised several points in support of the appeal. He has contended in the first place that the adoption of the plain tiff Sitanath cannot relate back to the death of Jyotish, the adoptive father. In support of his contention, he has relied on the decisions in Bamundoss Mookherjee and another v. Mst. Tarinee 7 Moore's I A 169 and Lakshmana Rau v. Lakshmi Ammal and others I L R 4 Mad. 160, and on section 507 of Mulla's Hindu Law, 9th Edition, page

558. On the other hand, Mr. Rakshit for the plaintiff respondent has argued that adop tion of Sitanath will relate back to the death of Jyotish and for this he has relied on the following cases : Jittendromohun Tagore and another v. Ganendramohun Tagore 1872 Supple mentary Volume I A 47 ; Pratapsingh Shivsing and another v. Agarsingji Raisingji 1918 46 I A 97 ; Amarendra Mansingh and another v. Sanatan Singh and others 1933 60 I A 242, and Anant Bhikappa Patil v. Shankar Ramchandra Patil (1943) 70 I A

232. Now the Privy Council has frequently pointed out that adoption of a son by widow to her deceased husband is deemed IA to relate back to the husband's death. In Jittendromohun Tagore and auother v. Ganendramohun Tagore (Supra), their Lordships observed at page 67 as follows :- "The Hindu Law recognises an adopted child, whether adopted by the father himself in his lifetime, or by the person to whom he has given the power of adoption after his death from amongst those of his class, of one to stand in the place of a child actually begotton by the father. In contemplation of law such child is begotton by the father who adopts him, or for and on behalf of whom he is adopted. Such child may be provided for as a person whom the law recognises as in existence at the death of the testator, or to whom, by way of exception, not by way of rule, it gives the capacity of inheriting or otherwise taking from the testator, as if he had existed at the time of the testator's death having been actually begotton by him ". In the case of Pratapsingh Shivsing and another v. Agar singji Raisingji (Supra), the Judicial Committee observed at page 106 as follows "Now it is an explicit principle of the Hindu law that an adopted son becomes for all purposes the son of his father, and that his rights unless curtailed by express text are in every respect the same as those of a natural-born son. And a learned authority on Hindu law has explained that the only express text by which the heritable rights of an adopted son are 'contracted' refers to the case of his sharing the heritage with an after-born natural (aurasa) son. 'In every other instance the adopted son and the son of the body stand exactly in the same position'. Again, it is to be remembered that an adopted son is the continuator of his adopted father's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect: whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhier point out in their learned treatise in Hindu law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible ". In the above case, their Lordships refer to the decision reported in 7 Moore's Indian Appeal, Page 16) (Supra), on which " Mr. Nandi relies as follows "Much reliance has been placed on behalf of the respondent on the case of Bamundoss Mookherjee v. Tarinee (Supra). The only point decided in that case was that a mere power, given to a widow to adopt does not preclude her from main taining an action in her own name and in her own right in respect of the property in her possession as her husband's widow." In Amarendra Mansingh and another v. Sanatan Singh and others (Supra), the Privy Council approved of the decision in Pratapsingh Shivsing and another v. Agarsinghji Raisingji (Supra). In Anant Bhikappa Patil v. Shankar Ramchandr a Patil (Supra). Rankin, J. delivering the judgment of the Board also quoted with approval, the passage referred to above in Pratap Singh's case. In view of this clear and emphatic pronouncement of the Judicial Committee, it is now well-settled that adoption relates back to the death of adoptive father ; that is to say, that an adopted son is entitled to be put in possession of his e adoptive father's share of the family estate subject of course to lawful alienations in the meantime. In the face of these authorities Mr. Nandi found it difficult to challenge the plaintiff's claim to the property which his adoptive father Jyotish inherited from Golak. He, however, contended that under Golak's will, Jyotish was entitled to 1 anna 7 pies and hence the adopted son would get that share only. The will of Golak was, however, not probated. In the circumstances, the Court below has rightly held that plaintiff would be entitled to get 2 as out of Golak's 8 as. The next and most important question for consideration is whether the plaintiff is entitled to inherit the property which his adoptive father got under Trahiram's will. Mr. Nandi has contended that under Trahiram's will Jyotish, the adoptive father, got a life interest in as. 1-6 of Trahiram's 8 as. and on his death; the said as. 1-6 vested in his brothers, Jagat, Rajchandra and Satish and hence the plaintiff by his subsequent adoption could not succeed and divest them of the shares which had already vested in them. In other words, his contention is that the adopted son can inherit the property that belonged to his adoptive father and the fiction that the adopted son was in existence at the time of his adoptive father's death cannot be extended to entitle him to inherit from the collaterals. Mr. Rakshit, has, however, argued that Jyorish has got an absolute interest in as. 1-6 pies under Trahiram's will and hence the plaintiff is entitled to inherit the said share also. The question whether ]yotish got an absolute estate or a life estate primarily depends upon the interpretation of the will of Trahiram. Mr. Nandi has relied on paragraph 5 and 6 of the will in support of his contention that Jyotish got a life estate whereas Mr. Rakshit has relied on paragraph 3 of the said will to show that the testator intended to give an absolute estate to Jyotish. In paragraph 3, the testator says : " and my grandsons Jagat Chandra Dutta get and be given 4 as. (four annas) and Rajchandra Dutta 4 as. (four annas) and Satish Chandra Dutta 3 as. and Jyotish Chandra Dutta 3 as. shares." In paragraph 5 he says: "God forbid if any of my four grandsons die leaving wife and 6 daughters they shall not get those movable and immovable properties given by me. My other grandsons shall get them in equal shares. God forbid if before the sonless grandson, any grandson die leaving male issue his sons get share of the sonless". In paragraph 6 he says : "Let it also be known that among any grandsons one, having no male child or to whom no male child is born, shall not be entitled to sell for consideration or make pasta or Ijara or Kot-mortgage or do no such thing to orders. If there be any sale, etc., made, those shall be invalid . . . . . . . Mr. Rakshit has contended that the words : "That Jyotish shall get and be given 3 as. shere" in paragraph 3 are clear enough to create an estate of inheritance. According to him this absolute estate thereby created could not be cut down by limitations imposed in paragraphs 5 and 6 of the will. From the above provisions of the will, it cannot be said that the testator attempted to create an estate unknown to and opposed to Hindu law. Therefore, the clear intention of the testator contained in paragraphs 5 and 6 limiting the course of succession to male line and forbidding alienation can be given to. Hence reading the will as a whole, we come to the conclusion that paragraph 3 will be controlled by the provi sions in paragraphs 5 and

6. Mr. Rakshit has cited some cases in support of his contention but in view of clear provisions of the will, we do not think any useful purpose will be served in referring to those cases which deal with the construction of other wills having different language. Here we may observe that the rule of construction generally is that the will must be read as a whole to ascertain therefrom the intention of the testator and having so ascer tained, that intention must be given effect to so far as legally possible. Applying this principal, we have formed an opinion that the intention of the testator was to confer a life estate on his grandsons. Hence we uphold the contention of Mr. Nandt that Jyotish got a life estate only under the will of Trahiram and that it passed to his brothers after his death. Next we take up the question whether the plaintiff is entitled to get any share in the property of Trahiram which has vested in the brothers of Jyotish on Jyotish's death. Mr. Nandi in support of his contention that the plaintiff cannot succeed to this property has relied on the decision of the Privy Council in the case of Bhubaneswari Debi v. Nilkomul Lahiri (1885) L R 12 I A

137. Mr. Rakshit on the order hand relies on the decisions of the Privy Council in Anant Bhikappa Patil, minor v. Shankar Ramchandra Patil, (Supra) and Amarendra Mansingh and another v. Sanatan Singh and others (Supra). The facts of the present case are as follows: Jyotish died in 1906. The properties that Jyotish got under Trahiram's will vested in his brothers. In 1937 Jyotish's widow adopted the plaintiff. No doubt if the plaintiff was alive at the time of Jyotish's death, he should have inherited as. 1-6 in which his adoptive father Jyotish got a life estate under Trahiram's will. But the question we have to determine in this case is whether he having not been adopted before Jyotish's death, his sub sequent adoption after 30 year of the death of Jyotish would confer upon him any right to claim the said share from the persons in whom it had vested under Trahiram's will. The plaintiff cannot succeed in this case unless he can establish that on his adoption, the ownership of the said property was divested from the persons who had succeeded to them upon the death of Jyotish and vested in himself. Mr. Nandi's contention, namely, that the adoption dates back only to enable an adopted son to succeed lineally by divesting other persons and that this fiction cannot be extended to entitle him to inherit from collaterals finds support from the decision in Kally Prosonno Ghose v. Gocool Chunder Mitter I L R 2 Cal.

295. The following genealogical table will help to understand facts of Kally Prosonno's case :- Pitambur Ghose Died August, 1855 ________________________|_________________________ | | Parbutty Churn Ghose Bhugoban Chunder Ghose. (Died 1851) (Died October, 1855) Married Bindadebee Dassee Married Potitpaboni Dassee (Died in 1864) | | | Daughter Khetter Mohn Ghose =Kristo Mohiny Dassee. (Died 1855) Died childless between the Married Bamasoondery deaths of Parbutty and Dassee, who, after her bus Bindadebee. band's death in August, 1876, adopted Kally Pro sonno Ghose, the Plaintiff. The facts were as follows : "A Hindu testator died leaving his property to P and B, his two sons absolutely in equal shares. B died in 1845 leaving a minor son K. P. died in 1851 without male issue leaving a widow B D and a daughter P also left a will by which he gave, subject to certain trusts for the worship of the family idols, all his property to his widow B D for her life, and on her death to his daughter's son (if any)the daughter died, without issue before her mother. B D died in October 1864, leaving a will, in which she appointed her brother G executor, and G, in accordance with the directions in her will took possession of the property, which B D took as widow under the will of P. K died in 1855, when still a minor, leaving a minor widow and having made a will, by which he gave permission to his widow to adopt a son. The widow of K adopted a son in August, 1876. In a suit brought by the plaintiff as adopted son of K and heir of P, to recover the property left by P, the issue was raised whether, assuming the plaintiff to be the legally adopted son of K, he was the heir of P. "It was held in that case that K was not entitled to inherit the property of P. As in our opinion, Mitter J. gives a correct exposition of the law on the subject, we quote his observations in extenso which begins at page 303 This being so, the plaintiff cannot succeed in this case, unless he can establish that, on his adoption, the ownership of these properties was divested from the person who had suc ceeded to them upon the death of Bindadebee, and vested in himself. If this proposition could be established, it would lead in many cases to very mischievous and inconvenient results. There is no limitation of time within which a Hindu widow is bound to exercise the right of adoption, and there might be cases not of infrequent occurrence, in which persons rightfully succeeding to properties as heirs might, after a long lapse of time, be suddenly called upon to relinquish their possession in favour of a person adopted into the family of the last owner many many years after the death of the latter. A proposition so startling as this is ought to be established by the clearest possible authority. No text from the Hindu law has been cited in its support. On the other hand, the definition of 'heritage' as given in the Dayabhaga, paragraphs 4 and 5 of Chapter 1, tends to lead to the opposite conclusion. These paragraphs are to the follow ing effect "The term 'heritage', by derivation, signifies what is given. However, the use of the verb (da) is here secondary or metaphorical: since the same consequence is produced namely, that of constituting another's property after annulling the previous right of a person who is dead or gone into retirement or the like. But there is no abdication of the deceased ; and the rest in regard to the goods. There fore, the word 'heritage' is used to signify wealth in which property dependent on relation to the former owner arises on the demise of that owner. When a person, therefore, succeeds to a property by right of inheritance under the Hindu law, in the language of the Dayabhaga this conse quence is produced, namely, that of constituting another's property after annulling the previous right of a person who is dead or gone into retirement or the like. His right is there fore, absolute, and carries with it all the natural incidents of ownership, unless otherwise controlled by any other express provision of the law. In the case of succession by females, we know there are such express provisions relating to the right of transfer by sale, gift, etc. But I am aware of no authority in Hindu law books which supports the proposition that this right of ownership is subject to be destroyed by a person being brought into existence subsequently, a person who, if he had been in existence at the time when the succes sion opened out, would have been a preferable heir. This is opposed to natural justice and all principles of the Hindu law." Further in the said judgment Mitter, J. relied on the following observation of Sir Bernes Peacock in the Full Bench case of Kalidas v. Krishna Chandra Dass 2 B L R 103 (F B). "The case of a widow adopting a son after her husband's death, and thereby divesting the estate which she took upon the death of her husband without issue, is one in which only tier own estate is divested. There is no case in which an estate vested in a male heir by inheritance can be divested by the adoption of a son by a widow after her husband's death, and the case of a widow divesting her own estate by the adoption of a son is not one from which inferences can be drawn by analogy as to the divesting of an estate once vested in a male heir by inheritance." Next we take up the case of Bhubaneswari Debi v. Nilkomul Lahiri, (Supra), on which Mr. Nandi has relied. In that case the facts were these : There were three brothers Kalimohan, Rammohan and Shibnath governed by Dayabhaga school of Hindu law. Rammohan died first leaving a widow Chandmoni who succeeded to his property. Shibnath died next in 1861 having given power to his widow to adopt a son. After that, Kalimohan died leaving a son Nilkomul. Thereafter Chandmoni died in 1867 and on her death, her nephew Nilkomul succeeded her husband's property. Subsequently Shibnath's widow adopted a son Jatindra Mohan Lahiri, a minor who was born after the death of Cliandmoni. Bhubaneswari as the mother guardian of the minor filed this suit to recover, on behalf of the minor son, the estate of Ram mohan which had vested in Nilkomul on Chandmoni's death. Sir Barnes Peacock who delivered the judgment of the Bard observed as follows : , "The widow never could, by adoption, if there had been no fraud, have made the present plaintiff a reversionary heir of half the estate of Rammohan, because he was not in exis tence at the time of Chandmoni's death. According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral." Mr. Rakshit has contended that the proposition of law laid down in Nilkomul's case cannot be accepted as correct in view of the subsequent decisions of the Privy Council in- Amarendra Mansingh and another v. Sanatan Singh and others (Supra) and Anant Bhikappa Patil, minor v. Shankar Ramchandra Patil (Supra). The question, therefore, is, have their Lordships laid down any such rule in Amarendra Mansingh's case which is inconsistent with the earlier decision in Nilkamul's case ? This question was fully considered in Chundrachoor Deo v. Bibhutibhushan Deba I L R 23 Pat. 763, and Chatterji J. observed as follows at page 808 "So far as devolution of property is concerned, the propositions which appear to me to emerge from 'the aforesaid four decisions of the Privy Council [Amarendra's case I L R 12 Pat. 642 P C; Vijaysingji s case L R 62; I A 161 Madana Mohana's case L R 45 I A 156 ; and Pratap Singh's case, L R 46 I A 97 (Supra) on which Mr. Das places so much reliance, may be thus stated :- "(1) If the last male holder of a property dies leaving a widow to whom he gave authority to adopt, whoever takes his property, whether by survivorships or inheritance or reverter, takes it only provisionally subject to be displaced, in the event of an adoption by his widow, by the adopted son." "(2) If he, the last male holder, dies sonless and un married, leaving his mother who had received authority from her husband to adopt a son to him, whoever takes his property, whether by survivorship, inheritance or reverter, takes it only provisionally, subject to be displaced, in the event of an adoption by his mother, by the adopted son." All that the said cases, therefore, establish is that where the last male holder dies leaving either his widow or mother with subsisting power of adoption, succession to his property is of a provisional character, liable to be defeated by a subse quent adoption. If this is so, the authority of the decision in Tlilkomul's case, is in no way shaken. That decision gives effect to the ordinary rule of devolution of property that inheritance goes to the heirs of the deceased owner who are in existence, a child in the womb being included, at the time when succession opens. It is to be observed that the decision in Nilkomul's case was not referred to in any of the aforesaid subsequent cases, obviously for the reason that these cases were dealing with a quite different question, namely, whether the power of a widow to adopt would depend upon the vesting of property in her. In these cases the property concerned was the property of the father's line. If the theory of the continuity of the line were to be applied to the facts of the case in Nilkomul's case there would be no difference whether the adopted son was or was not in existence at the time of Chandmoni's death. The adoption having a retrospective effect, the adopted son would be deemed to be in existence at the time of Chandmoni's death, his adoptive father having died in her life-time, and in that case he would be an heir equally with Nilkomul to Rammohun's estate. In Tagore's case 9 Beng. L R 377 P C, their Lordships, while considering the question of the validity of a bequest by a Hindu to an unborn person, referred to the position of an adopted son and said : "Such child may be provided for as a person whom the law recognises as in existence at the death of the testator, or to whom, by way of exception, not by way of rule, it gives the capacity of inheriting or otherwise taking from the testator, as if he has existed at the time of the testator's death having been actually begotten by him. Apart from this exceptional case, which serves to prove the rule, the law is plain that the donee must be a person in existence capable of w taking at the time when the gift takes effect." It is, therefore, clear that the case of an adopted son is an exception to the general rule. An exception should not be extended so as to supersede the general rule itself. The case in Nilkomul, is an illustration of the general rule, while the cases of Amarendra (Supra), hijayasinghi (Supra), Madana Mohana (Supra), and Partap Singh Shivsingh (Supra), are illustrations of the exception. The same judge at page 807 made the following observation "In Amarendra's case, their Lordships pointed out that 'he (the adopted son) in the absence of an aurasa, or natural born son, is clothed with all the attributes of a son and is from the date of his adoption regarded as having been born in his adoptive family. In other words, the rights of the adopted son accrue from the date of his adoption. This rule, however, is subject to the exception that where the adoption is made by a widow, it will for the purpose of continuing the line of the adoptive father relate back to his death. It will not be correct to say that such adoption has a retrospective effect for all purposes. Their Lordships in Pratap Singh Shivsingh expressly limit the purpose when they say : An adoption, so far as the continuity of the line is concerned, has a retrospective effect. As a necessary corrolary to the theory of continuity of the adoptive father's line it follows that the adopted son will take the property of his father in whomsoever it might have vested since his father's death. But no such consideration arises where he claims to succeed to property belonging to a different line or branch of the family. With regard to such property is rights accrue only from the time of his adoption." In this connection we may also quote the following obser vations of Rankin, J. at page 241 in the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil (Supra), which follows the decision in Amarendra case. "Neither the present case nor Amarendra's case brings into question the rule of law considered in Bhubaneswari Debi v. Nilkomul Lahiri (Supra) Cf. Kalidas Das v. Krishnachandra Das (Supra) and stated by the Board to be that 'according to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral." Therefore it cannot be said that the decision in Amarendra's case and Anant Bhikoppa's case have in any way shaken the decision of Nilkomul's case. In view of the decisions of Kally Prosonno Ghose's case and Nilkomul's case which are still good law, we are unable to accept Mr. Rakshit's contention that an adopted son is exactly in the same position as the natural born son and adoption has retrospective effect so that the adopted son will inherit not only the father's property but also the property of a collateral. In this view of the matter, we uphold the contention of Mr. Nandi that the plaintiff is not entitled to inherit any property under Trahiram's will. In the result, the plaintiff will be entitled to get 2 as. share only of the joint family Now a lengthy schedule of properties has been annexed to the plaint and the plaint claims all the properties belonging to the joint family. The principal defendants contended that there was a partition just after Jyotish's death in 1906 and that most of the properties included in the schedule were acquired by Rajchandra and Jagat after 1906 out of their own funds. Therefore, it is necessary to determine when there was separation of the joint family. Mr. Nandi contended before us that, joint family continued till 1910 whereas according to Mr. Rakshit it had con tinued till the year of adoption, that is, 1937. The finding of the Court below is that the disruption of the joint family took place in 1918. Mr. Nandi has drawn our attention to an agreement bet ween Jagat, Rajchandra and Satish, dated the 9th June 1910, to show that on that date the members agreed to separate. He laid stress on paragraph 20 of the said agreement which is as follows : "None of the parties shall be entitled to claim as joint properties those acquired after this date ; the person in whose name they are acquired shall be entitled to do so." On the strength of this paragraph Mr. Nandi has agreed that the plaintiff may be entitled to 2 as. share in the joint family estate as it stood on the 961 June 1910. Now the rule of the Dayabhaga system is that if two or more sons succeed to ancestral property and live jointly and acquired properties in the name of any member of the family, the presumption will be that all the properties acquired during the state of jointness are joint family properties. This pre sumption is to be displaced by the person alleging the property to be his separate self-acquired property. Therefore we have to see if Mr. Nandi's clients have rebutted that presumption. In the said agreement on which Mr. Nandi relies, there is no mention of partition any where. As a matter of fact, the heading of the said document which is Exh. FF3 is: Agreement between Jagat Chandra, Rajchandra and Satish Chandra, dated the 26th Jaista, 1272, Maghi 9th June 1910." In paragraph 5 it is clearly stated that the parties executed this deed of agreement for the convenience of management and preservation of the properties described in the schedule. Furthermore, paragraph 8 provides that successors shall not be entitled to have partition by suit, etc. This agreement which consists of 26 paragraphs does not mention anywhere that the parties were dividing the joint family properties. In the circumstances we are unable to accept the contention of Mr. Nandi. On the other hand the evidence adduced by the defendants and their witnesses clearly indicates that the family continued as joint till 1918. Kalimohan defendant No. I in his evidence has admitted that this deed of agreement to which Mr. Nandi refers was executed for proper management of their properties. D. W. 1 Rohiniranjan Dutta, says as follows : "There was an Ansha nama deed between Rajchandra and others in 1280 M. E. (1918). It is written in their town. residence. Satish was a party to it. It was signed by Rajchandra Dutta, Satish, Kalimohan and Dakshina in my presence, Exh. B. Before this Anshanarna these four persons were joint and after the Ansha nama Satish Babu alone became separate in mess." In cross examination he states : "There was a store-room Bhandar in the Bari of Duttas of Uttarerbari and Ramesh Biswas was the Bhandari Food was supplied from that Bhandar to the members of the family up to 1280 M. E. and after the Anshanama the Bhandar ceased to exist." The above evidence clearly indicates that they were not only joint in property but also joint in mess till 1918. In our opinion the learned Subordinate judge was justified in holding that there was separation of the family in 1918 when Anshanama, Exh. B was executed on the 9th June 1918. In the circumstances we hold that the plaintiff will be entitled to 2 as. share in the joint family property as it stood on the 9th June 1918. In appeal No. 170 of 1945 defendant No. 12 Sukhoda and defendant No. 13 Pramila Bala have claimed certain properties as their's. Sukhoda, defendant No. 12 is the wife of defen dant No. 1 Kalimohan who is a son of Jagat. She claims as a bona fide purchaser of lots Nos. 5, 7, 10, 114 to

116. Her case is that for payment of Government revenue the defendant Nos. 1 to 8 pledged her ornaments with the Mahaluxmi Bank in the name of their Tahsildar, Kamini Kumar Choudhry. As they failed to pay the dues of the Bank, the Bank realised the money by sale of the said ornaments. Subsequently defen dant No. 1, that is, her husband, sold the above mentioned lots in lieu of the value of the ornaments. It is further contended that the properties are self-acquired properties of Jagat and Rajchandra (predecessors of defendants Nos. 1 to 8). The findings of the lower Court that these are not the self-acquired properties of Jagat and Rajchandra has not been challenged before us. Further from the evidence of defendant No: 1, Kalimahan, it appears that they maintained proper account of the joint as well as of the self-acquired properties but those accounts have not been filed. D. W. 4 Kamini Kumar Chowdhury, a retired employee of the estate has stated in the examination-in-chief : "Sukhoda Bala mortgaged some of her ornaments with Mahaluxmi Bank for payment of rent." He, however, admits in cross-examination that he is now living with Kalimohan and till recently worked in the Sherista of Kalimohan and looked after his litigation. Defendant No. 8 Ambica Charan Sen Gupta, an employee of the Mahaluxmi Bank, Ltd. has supported the case of defendant No. 12 Sukhoda Bala by saying that Kamini Kumar Chowdhury, Ammaktear of Kalimohan, pledged some ornaments with his Bank in 1934 and the Bank sold the same probably in 1938. From his evidence it appears that Sudhindra son of Rajchandra and Narendra son of Monmohan worked with him in the Bank. Besides the statement of these interested witnesses, their is nothing to show that Sukhoda Bala's ornaments were pledged with the Bank. As stated above, the account books of the estate have not been produced. Further it would not have been at all difficult to call for the books of the Bank to prove the pledge of the said ornaments. In the circumstances no reliance can be placed on the statement of interested witnesses of the defendants who have been examined in the case. In our opinion, the defendant No. 12, Sukhoda Bala has failed to prove that she was a bona fide purchaser for value. We accordingly hold that the learned Subordinate judge has rightly rejected her claim. Defendant No. 13 Pramila Bala, wife of Rohiniranjan Dutta, a nephew of Kalimohan claims lots Nos. 2, 3, 47, 87 and

157. In lots Nos. 2, 3, 47 she claimed raiyati interest on the strength of her purchase from Akhil Dhupi by Kabala, Ext. Al, dated the 12th July, 1933. Akhil Dhupi denies that he had raiyati settlement in the said land. Now this defend ant's case is that out of lot No. 2 she purchased R. S. plots Nos. 4466 and 4354 which corresponds to C. S. Dags Nos. 1833 and 2888 to 2890 from Akhil Dhupi. The learned Subordinate Judge on a reference to. C. S. Khatian found that C. S. plot No. 1833 stood in the name of one Isan Chandra, C. S. plot No. 2888 stood in the name of one Becharam and C. S. plot No. 2890 stood in the name of Pyari Charan. Hence the learned Subordinate judge has rightly rejected her claims in respect of those plots. In lot No. 3 this defendant claim raiyati interest in R. S. plot No. 4358 which according to her corresponds to C. S. Dag No. 2788. Now from the C. S. Khatian it appears that this Dag No. 2788 is a tank. The R. S. Khatian shows that Akhil Dhupi is a tenant under Satish alone. In lot No. 47 she claims R. S. plot No. 435 which, according to her, corresponds to C. S. plot No. 2891 'The C. S. record, how ever, does not show the name of any of the above plots was possessed by Akhil Dhupi. Only one R. S. Khatian shows that Akhil Dhupi was a tenant in respect of plot No. 2788, a tank under Satish alone. In 1918-1919 Satish mortgaged those plots with Bank but no mention was made of the fact that these were tenanted lands. Therefore most likely the tenancy of Akhil Dhupi was created after 1919, Akhil Dhupi denied any such tenancy. There is not a scrap of paper to show that Akhil or the defendant ever paid any rent. In the circum stances we are inclined to think that this tenancy of Akhil Dhupi was created in name only with some ulterior motive and that Pramila who is the wife of a nephew of Kalimohan had knowledge of the said fact. Non-payment of rent by this defendant lends support to this inference. In the circum stances we hold that she is not a bona fide purchaser with regard to the disputed lots in lots Nos. 2, 3 and

47. Now we come to lots Nos. 87 and

157. These properties are ancestral properties. According to this defendant after partition of 1918 these two plots fell to the exclusive share of Rajchandra and jagat and after their death, there was partition among their heirs in 1934 and these lots were allotted to the share of defendant No. 6 Dhirendra, son of Rajchandra. There after in 1935, she purchased it from him by Kabala, Exh. A 2 dated the 23rd September 1935. We have already held that there was partition of the joint family in 1918. Now from the Anshanama, Ext. B it appears that these two lots were not allotted to Satish and, therefore, it may be safely inferred that they must have been allotted to Rajchandra and Jagat. In 1934 there was a partition among the heirs of Rajchandra and Jagat and it appears from the deed of partition that these two lots fell in the share of Dhirendra who subseque,ptly on the 23rd September, 1935, sold it to this defendant. Therefore we have no reason to hold that she is not a bona fide purchaser for value so far as these lots are concerned. We accordingly hold that she was bona fide purchaser of lots Nos. 87 and

157. Now we take up the appeal No. 177 of 1945 which has been preferred by defendant No. 16 Amir Hossain Dovashi. He claims lots Nos. 14 and 399 to

406. The learned Subor dinate judge has upheld his claim regarding lot No.

14. He regard to the other lots Now this detendant's case is that on the 28th October, 1935, Kalimohan, defendant No. 1 executed a Kot Kabala in respect of those plots Nos. 399 to 406 for Rs. 700, vide Exh. BBB and in June, 1937, sold the said plots to him for Rs. 1,000, vide Kabala, Eat. AAA. It seems that after partition of 1918, these plots fell in the share of Rajchandra and Jagat and later in 1934, there was a partition among the heirs of Rajchandra and Jagat and these plots fell in Kalimohan's share. Thereafter, he sold the same to this defendant. From the facts and circum stances of the case, it seems to us that this defendant was a bona fide purchaser for value. Therefore his claim to lots Nos. 399 to 406 must be upheld. Lastly Mr. Rakshit argued that these appeals are not maintainable inasmuch as the appellants have not made all the defendants parties in these appeals. Mr. Nandi has rightly contended that under Rule 9, Order XLI of the Code of Civil Procedure, this appeal proceeds upon a decree common to all the defendants and any of the, defendants is entitled to appeal from the whole decree and that this Court can reverse or vary that decree. Hence this contention has no substance in it. The cross-objection which has been filed in appeal No. 170 of 1945 is not pressed and is accordingly dismissed. In the result, we modify the decree of the learned Sub ordinate judge as follows : The suit is decreed in part. Plain tiff's 2 as. share in all the suit lands excepting lots Nos. 2, 14, 80, 87, 91, 95 to 98, 102 to 104, 137 to 141, 157, 158, 17, 237 to 251, 399 to 406 and 408 to 415 to be declared and he do get joint possession of the lots decreed along with the defendants. The plaintiff will be at liberty to recover mesne profits against the defendants in his subsequent pro ceeding up to the date of delivery of possession. The defen dants who contested the appeal in High Court regarding adoption will be liable jointly and severally for the Court-fee on the memorandum of appeal. The Court-fees on the plaint will be paid by the plaintiff. The Government will recover the Court-fees on the plaint from the plaintiff and on the memorandum of appeal in F. A. No. 33 of 1940 from the con testing respondents of that appeal and payment of the said Court-fee will be first charge on the subject matter of the suit Defendant No. 1 ka and 1 kha, 2 and 4 will pay half of the Court-fees paid by the plaintiff to the Government. Defen dants Nos. 23 to 31, that is, the Kundus-defendants will be liable for 1/8th of the costs of the suit only. Others will bear their respective costs of the suit and these appeals. The appeals are disposed of as above. GUHA, J.

I agree with the decision and order of my learned brother passed in these two appeals. But I shall give my reasons why the plaintiff is not entitled to the share, which his adoptive father Jyotish got under the will of Trahiram, dated the 13th February, 1882. From the pedigree given below, the basis of the claim of the plaintiff in the suit will be clear. CHHATRANARAYAN ___________________________|__________________________ | | Trahiram (d). Debidas Golok (d). Will Ex. AA, dated Will Ex. AA (2), dated 13th February 1882, 14th February 1888, but Probated in 1888. there is no evidence of its being probated. ____________________________________| ________________________|__________________________________ | | | | Jagat Rajchandra Satish Jyotish (died on (d.1910) (d.1926-27) D.9 2-12-06 leaving | a will Ex. AA (1) | dated 10-12-06 | and probated in | 1908giving autho | rity to his wife | to adopt)=Jog- | maya. | | | Sitanath | plaintiff. |___________________________________ ___________________________________|___________________ | | | | Kali (d) Dakshin (d) Monmohan (d) Sasanka (died (original D1) (original D2) | before suit). =Sukhoda =Hemnalini | D (1ga) D 2. | ____________________________________|________________________ | | | | | Joykumar Anil D (1 kha). | Narendra Amarendra D (1ka) | D

3. D 4. ______________________________|______________________________ | | | | Manindra (d) Dhirendra Sudhindra Famindra (d) (Original D 5). D

6. D 7. =Monibala D 8. |______________________________ __________________|__________________ | | Arun Sripati The appeal No, 170 is by D (1 ka), D (1 kha). D (1 ga) as heirs of Kali and D (1 ga) and D 13 as transferees of some of the suit lands and the appeal No. 177 is by defendant No. 16, a transferee. The plaintiff in his plaint claimed 4 as. share but the learned Subordinate Judgc granted a decree for 3 as. share, to annas inherited by Jyotish from Golok and 1J as. which Jyotish had in his lifetime under the Will of Trahiram. The contesting defendants wanted to defeat the plaintiff's claim by setting up a will of Golok, which contention was rightly negatived by the trial Court as that Will had not been probated ; and also by contending that in view of the terms of Trahiram's Will the share bequeathed to Jyotish vested in his other brothers in 1906 and then to some of their heirs, long before the adoption of the plaintiff on the 25th February 1937. It is not seriously contended and cannot be so done in respect of the two annas share which Jyotish inherited from his father and on his death owned and possessed by his widow Jogmaya, plaintiff's adoptive mother. As regards the 1 annas share under the Will of Trahiram, to which only my observa tions will mainly relate, I am of opinion on a construction of the said Will that Jyotish got a life interest only and that that construction is correct as has been held by my learned brother and which also follows from the construction of a Will with similar terms, which their Lordships of the Judicial Committee of the Privy Council had to deal with in the case of Kumar Tarakeswar Roy v. Kumar Sashishek Mareswar Roy (1883) L R 10 I A 51; and as I agree with my learned brother on this point I need not detain myself long on this point for giving my reasons. The finding of the trial Court on evidence on the the point whether that 1J annas' share was in possession of Jyotish's widow or Jyotish collaterals is in one way, namely, that the said share on Jyotish's death vested in his collaterals and they dealt with that as their own since after the death of Jyotish. The only question that I desire to deal with is the vexed question whether under the Dayabhaga Hindu Law, when there has already been a vesting in collaterals of the estate of the adoptive father on his death, the adopted son taken by the widow of the last male holder in the exercise of her authority to adopt, can divest the said collaterals of the adoptive father's estate. If the adoption takes place immedi ately on the death of the last male holder no question can properly arise. But in a case where the widow of the last male holder exercises her power to adopt long long after the death of her husband, as in the present case, the question that arises assumes a very considerable importance. As the Hindu law-givers are not of opinion and as the Hindu Law applicable in different provinces differs and as to the judicial decision are not reconcilable without reference to the original Hindu Law text and commentaries, I take the liberty of tracing the origin of this conflict in relation to the Hindu Law of adoption as to how far it affects the rights of an adopted son in regard to his adoptive father's estate, when it has already vested in the collaterals of his adoptive father before the adoption. It must be remembered that in this case there is no dispute that the plaintiff has been validly adopted. The Hindu law as it stands at the present day owes its origin amongst others to the writings in various commentaries on Hindu law and of sages and law-givers and to the judicial decisions. In dealing with the question of the rights of an adopted son, the early Hindu sages, commentators and law-givers speak of 12 kinds of subsidiary sons besides the aurasa or legitimate son begotten on lawfully wedded wife and the aurasa son occupies the first place according to all sages but as regards the adopted son, the different Hindu sages and law-givers assign different places in the matter of succession to him. Those different kind -of sons are divided into two classes, one class includes those who are heirs and kinsmen and the other who are not heirs. To mention the opinions of some of those sages about the position of the adopted son in the order of succession : Vasistha gives him the 8th place and puts him in the second class ; Vishnu puts him in the second class giving the 8th place and gives him equal rights with the adoptive father in ancestral property ; Manu, who is described as the most revered of all Rishis by Lord Hobhouse in Sri Balusu's case (1899) L R 26 I A 113 (123) and whose code is described as of paramount authority in Amarendra's case (supra), and which resort to the first principles as said in Ramalakashmi v. Sivanath (1872) 14 M I A 570 (591) puts him in the first class giving him the 14th place ; Yajnavalka in his commentary on Mitakshara places him in the second class giving him in the 10th place ; Narod gives the adopted son 9th place in the second class ; Brihashpati, whose rules are more rational and advanced and who is regarded as a civil and criminal jurist, places the adopted son second to the aurasa son in the first class ; and Debala (Jagannath's digest translated by Mr. Colebrooke in 1801. Vol. 332), whose view has been adopted by the author of Dayabhaga gives the adopted son 6th place in the order of succession. The next commentary of Yajnavalka Smriti is the Mitakshara by Vijnaneswara, whose authority is supreme in India except in Benga:. See Collector of Madura v. Moottoo Ramalinga (1868) 12 M I A 397, Ramchandra's case (1914) L R 41 1 A 290 and Buddha Singh v. Laltoo Singh (1915) L R 42 I A

208. The supreme authority in Bengal is Dayabhaga by Jimutavahana, which is described by Jolly in his Tagore Law Lecture at page 22 as one of the most striking composi tions in the whole department of Indian 'Jurisprudence and is remarkable for its logic, lucidity and power. The most autho ritative expositions of Hindu law of adoption is Dattaka Chandrika by Kuvera and its doctrines are adhered to in Bengal and by southern jurists as said by Mr. W. H. Macnaghten and accepted by the Privy Council in Collector of Madura v. Moottoo Ramalinga (Supra) and in Sri Balasu's case (Supra). In deciding questions of Hindu Law we must bear in mind the following observations of their Lordships of the Judicial Committee of the Privy Council : "There is necessity of great caution in interpreting books of mixed religion. morality and law, lest foreign law, years should too hastily take for strict law precepts which are meant to appeal to the moral sense, and ..should introduce restrictions in Hindu society and impart to it an inflexible rigidity, never contem plated by the original law-givers". See Sri Balasu (Supra) and B. G. Tilak v. Shrinivas Pandit (1915) L R 421 A 135 (149); add "On the other hand Hindu Law contains its own principles of exposition and questions arising under it cannot be determined on abstract reasonings or analogies borrowed from other systems of law, but must depend for their decision on the rules and interpretations enunciated by its own law-givers and recogni sed exponents". Ramchandra v. Binayek (1914) L R 41 I A 290 (299). In the Collector of Madura's case (Supra) their Lordships of the Judicial Committee observed at page 436. "The duty of a Judge is not so much to enquire whether a dis puted doctrine is fairly deducible from the earliest authorities as to ascertain whether it has been received by the particular school which governs the district with which he has to deal and has, therefore, been sanctioned by usage." In Atmaram Abhimanji v. Bajirao Janrao (1935) L R 62 1 A 139 (143), Sir Shadi Lal observed. : "It must be remembered that the commentators, while professing to interpret the law as laid down in the Smritis introduced changes in order to bring it into harmoney with the usage followed by the people governed by the law ; and that is the opinion of the commentators which prevails in the provinces where their authority is recognised. It is, therefore, clear that in the event of a conflict between the ancient text writers and the commentators, the opinion of the latter must be accepted". For the first time Mr. Colebrooke used the term "school of law" and there are two main schools-the Mitakshara and the Dayabhaga, but there are fundamental differences of rules of law between the two schools. These differences may be summarised as : (i) In Dayabhaga the principle of religious efficacy is the common for determination of the line of succes sion and so it rejects the preference of agnates to cognates (ii) Dayabhaga does not recognise the doctrine of right to property by birth, so father is the absolute owner of property which he can dispose of at his pleasure and does not admit of the son's right to partition during father's life-time ; (iii). In Dayabhaga brothers or their collaterals hold in quasi-severality and, therefore, their right to dispose of the property at their pleasure while joint is recognised and Dayabhaga recognises widow's right in undivided family to succeed to her husband's share if he dies without issue and to enforce partition, now removed by the Hindu Women's Right to Property Act (XVIII of 1937). Thus from the earliest times there have been conflicting principles

one favouring integrity and fixed succession and the other free use of property as circum stances permit. See Balwant Singh v. Rani Kishori (1898) L R 25 I A 54 (71). The Dayabhaga Sapindaship doctrine followed the ancient orthodox view of its logical consequence. Keeping in view the aforesaid principles and texts, I may now proceed to decide the point at issue. The institution of adoption is not peculiar only to ancient Hindu Law. It has been known in other countries, especially in ancient Rome, as we find in Roman Law "Adoption Emim naturam imitator" (adoption imitates nature). In Rome there was adoption of a filius-familias and when the latter was transferred by his father, it extinguished the patriaprotestas where it existed but the bond which he had previously with his agnates was severed, but after the law of Justinian came into force, adoption did not in all cases follow by a change in family except where the adoption was a paternal or maternal grand father. Even in modern England, adoption has been intro duced by a Statute. See the Adoption of Children Act, 1926 ; Halsbury, Halisham edition, 17th Vol., para. 1416, page

685. Adoption has been in vogue amongst the Hindus since the Vedic times. We have already seen that there are two-fold classifications of sons and according to Dr. Jolly that was due partly for spiritual benefit and partly out of secular motive. In other words, it was partly for secular reasons and partly due to someone being in need for performing funeral rites because a sonless man would be without protection or assistance in old age or sickness and would not like to see his property pass into the hands of distant relations. In course of time there remained only two kinds of sons, namely, aurasa i.e., "whom one begets on his own wedded wife"--(manu) and Dattaka or adopted sons. In Smriti Chandrika it is stated that in Kali age adopted son alone is acknowledged except aurasa son. In Hindu Law, adoption is allowed only in the absence of a legitimate son. The place of assignment of an adopted son by different commentators may be due to the difference in local customs and usages. Historically in India adoption became very prominent after the Gupta Empire. The entire Hindu Law of adoption is envolved from two texts of Manu and one of Vasistha and a metaphor of Saunakha. Manu says : " A son equal in caste and affectionately disposed whom his mother or father (or both) give with water at a time of calamity is known as the Dettrima (Dattaka) son. The adopted son is not to take away (with him when he is passing from the family of his birth to that of adoption), the gotra the rikhta (wealth) of the progenitor, the Pinda is follower of the gotra and the rikhta, the swadha (or spiritual food) goes away absolutely from the giver." Manu, IX, 168 and

142. The text of Vasistha is : "A son sprung from the virile seed and the uterine blood is an effect whereof the mother and the father are the cause ; the mother and the father are, therefore, competent to give, sell or disown him; but an only son should neither be given nor accepted ; for he is, intended for continuing the lineage of the ancestors; but a woman should neither give nor accept a son without the permission 'of the husband. One desirous of adopting a son should after having invited his relations, inform the King, and perform in the dwelling house the Vyahriti-homa, take one whose kinsmen are not unknown or one who is a near kinsman. But if a doubt arises (as to the caste), then the adopted son whose kinsmen are unknown, should be set apart like a Sudra ; for it is well known that by one many are saved. If after he has been adopted, an aurasa or real legitimate son be born, then the Dattaka shall be participator of a fourth share." Quoted from Sarkar's Hindu Law, 6th edition, pages 145, 147 and

144. The aforesaid texts read along with the metaphor of Saunakha that " the adopted son must be the reflection of a son" has given rise to numerous rules for observance in the case of a valid adoption. The Dattaka Mimansha of Nanda Pandit and Dattaka Chandrika of Kuvera, two treatises on adoption are respected all over India ; but when they differ, the doctrine of the latter is adhered to in Bengal and by southern jurist while the former prevails in Mithila and Benares. See Collec tor of Madura's case (Supra). The religious motive is not very great as Vishnu, Yaj navalka and Narod assign a very low place and adopted sons Sapinda relationship extends only to three degrees and the period of pollution is to .three days only and he performs Ekaddistha Sradh on the anniversary of his adoptive father's death but does not like aurasa son offer divided oblations to the higher ancestors. His position is inferior to aurasa son religiously. In Dattaka Chandrika it is stated that a son is to be adopted for " celebration of a name and due perpetua tion of a lineage". Again amongst vast majority of Hindus mere gift and acceptance are sufficient though the adoptee is expected and does perform customary funeral rites. It is often found that a husband gives power to his wife to adopt for continuation of his lineage, to inherit property and to keep up his name: See Rajendra v. Govala (1930) L R 57 1 A 296 (302). Again secular motive is more dominant than religious more so when adoption is made long after husband's death (as in this case). The controversy whether adoption is for religious or secular motive has Been set at rest by Amarendra's case, which reiterates " the well-established doc trine as to religious efficacy of sonship " following Sri Raghunandha v. Sri Brozo Kishore (1876) L R 3 I A 154 (192). The Hindu Law sets no limit to the exercise of the widow's power to adopt. According to the Dattaka Chan drika,the age of the boy to be adopted is material as determining the time at which Upanayan may be performed ; but so long as that rite in the case of three higher classes and marriage in the case of Sudra, can be performed in the family of the adoptor, there is no limit of any particular time. It is well-settled that there is no power under the Hindu Law to compel a widow to adopt and in the absence of a time limit imposed on the authority, which empowered her to adopt or of a direction that she would adopt promptly, she can make adoption so long as the power is not extinguished or exhausted. See Mutsaddi Lai v. Kundan Lai (1905) L R 33 1 A 55, Madana Mohana v. Purushothama (Supra) and Pratapsing v. Agarsinghji (Supr4). In Amarendra v. Sanatan (Supra) their Lordships of the Privy Council observed, however, that there must be some limit to its exercises, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance or inequitable in the face of other rights to allow it to take effect". It is well-settled that the widow of a co-parcener can adopt a son to her husband notwithstanding the vesting of his interest in another co-parcener. , See Raghunandra v. Brozo Kishore (Supra); Bachoo Hurkisondas v. Mankorebai, (1907) L R 34 I A 107; Yadao v. Namdeo, (1921) L R 48 I A 513, and Bhimabai v. Gumnathgonda, (1933) L R 60 I A

25. So also where an aurasa or adopted son dies un married leaving his mother as his heir, her power of adoption can be exercised. See Rajah Vellanki Benkata Krishna Rau v. Benkata Ramalakshmi Narsayya, (1876) L R 4, I1A 1, and Vcrabhai Ajubhai v. Bai Hiraba (1903) L R 30 1 A

234. From Bhubanmoyee v. Ramkishore, (1865) 10 M I A 279 (306-7), it is clear that mere existence of the son's widow without any authority given by the son, would itself bring the mother's power to adopt to an end. The recent decision of the Privy Council in Amarendra v. Sanatan (Supra) swept away the distinction between cases of vesting by inheritance and vesting by survivorship in limiting the widow's power of adoption and approved the rule of law in Ramkrishna v. Shamrao, I L R 26 Born. 526 F B and their Lordships observed : " The vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another coparcener of the joint family, or an outsider claiming by reverter, or their Lordships would add, by inheritance, cannot be in itself the test of the con tinuance or extinction of the power of adoption." That decision has been followed in Vijaysrngji v. Shibsingji (Supra) and Anant v. Shankar (Supra). In this case there is no limitation to the power of the widow to adopt and also the adoption of the plaintiff by Jogmaya has been found to be valid and that decision is not challenged before us. The text on the subject of the result of adoption are fairly comprehensive and clear. Manu followed in Mitakshara makes the adopted son heir not only to the adoptive father but to his kinsmen as well. The Dayabagha citing Devala prima facie takes the view that the adopted son falls in the second six of the twelve secondary sons. I shall discuss that point later on. Manu makes it clear that the effect of adoption is to cut off all connections with the natural family in respect of the gotra, wealth, heritage, pinda or oblation and Saradha, etc., and to transplant him in the adoptive family. Manu further declares that an adopted son shall never take the family name and the estate of his natural father the funeral offerings of him who gives his son in adoption cease as far as the son is concerned." (Mann, IX, 141, 142 and 159). The Dattaka Mimansha and the Dattaka Chandrika expressly lay down that the adopted son is a substitute for a legitimate son both for the purposes of inheritance and of funeral oblations, and that he is a Sapinda to the members of the adoptive family and that the forefathers of his adoptive mother are his maternal grandsires. It is now well-settled that an adopted son occupies the same position in the adoptive father's family and has the same rights and privileges in the family of the adoptor as a legiti mate and natural son (except in instances relating to marriage and to the competition between the adopted son and an aurasa son subsequently born to the adoptive father). The theory of adoption depends upon the principle of a complete severance of the child adopted from the family in which he is born, both in respect of the paternal and the maternal line, and his com plete substitution and engraftation into the adoptor's family, as if he were born in it. See Jagendra Chandra Ghosh's Hindu Law, page 542: Uma Sankar v. Kalikomal (1881) I L R 6 Cal. 256 (F B), cited with approval in Nagindas v. Bechoo (1916) L R 43 I A 56 and in Raghuraj v. Subhadra (1928) L R 55 I A 139 ; Krishnamurthi Ayyar v. Karishnamurthi Ayyar (1927) L R 54 I A 248, Pundookumari v. Coui t of Wards (1881) L R 8 I A 229 ; Kalikomul v. Umashukur (1888) L R 10 I A 138 ; Gangadhan Bogla v. Hiralal Bogla I L R 43 Cal. 944 ; Amarendra v. Sanatan (Supra) and Anant v. Shankar (Supra). It follows that in contemplation of law an adopted son is the continuator of the adoptive father's line exactly as an aurasa son with no hiatus in the continuity of the line. See P,ratap singh v. Agarsinghji (Supra) ; Benarsi Das v. Sumat Prasad I L R 58 All. 1019, and Bhuptinath v. Basantakumari I L R 63 Cal. 1098. Lord Sumner in Raghuraj Subhadra (Supra) observes : "It is not true to say that by the Hindu Law an adoptee only loses his consanguinity for purposes of succes sion. Adoption has been spoken of as a 'new birth' in many cases, a term sanctioned by the theory of Hindu Law. Nor is the expression a mere figure of speech," and citing with approval Nagindas's case (Supra) and Duttatraya v. Govind I L R 40 Born. 429 observes : 'As has been more than once observed, the expressions 'civily 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' ..Consideration of the intimate con nection, 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 new born 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 descend. The fiction of adoption operating as civil death in the natural family and new birth in the adoptive family has been extended both ways to the extent that the adopted son is to be treated as having been born from his birth in the adoptive father's family and as having never been born in the natural family. That in substance is the effect of adoption. It may be observed that an adopted son is entitled to inherit both lineally Mukund v. Bykunt I L R 6 Cal. 289, and collaterally Pundakurnari's case (Supra), and Chandreswar v. Bisheswar I L R 5 Pat. 777, and ex-parte materna as well as ex parte paterna Kalikomul's case (Supra), Shamkuar v. Gayadin, I L R 1 All. 225 (F B), Surjo v. Mohesh I L R 9 Cal. 70, Dattatraya v. Gangabai I L R 46 Born. 541, and Sown= tharapandian v. Periaveru Thavan I L R 56 Mad. 759 (F B), in the adoptive family. The present is a case of an adoption made by a widow to her deceased husband and it raises special considerations due to the fact that the person adopted has, apart from the Act of 1937, as amended by the Act of 1938 a better title than the person in possession, while on the other hand, the title of the person so in possession has been a perfectly good and valid title up to the date of possession. Therefore, the question arises in two ways, firstly, with regard to the title to the estate and secondly, with regard to the validity of acts done between the date of the death of the husband and the date of adoption. Before I deal with that question, I shall first deal with the law applicable to this case amongst parties governed by the Bengal school Dayabhaga, which is found in the texts and in authoritative commentaries on Hindu Law. We have already seen that the adopted son becomes a son of the adoptive father's family and the question is what is the right of the adopted son to inherit in the family of adoption. The 12 kinds of sons described by the Hindu law-givers become members of the legal father's gotra and as such offer oblations of food and liabations of water. These 12 sons are divided into two groups, of which the first six are declared to be heirs to their father and also to kinsmen, while the second six to the father alone. Manu includes adopted son in--the first six while Debala includes him in the second six. This conflict is difficult to reconcile. The author of Dattaka Chandrika, which is authority in Bengal, reconciles by saying that if the adopted son is endowed with good qualities, Vijnaneswar in Mitakshara says that according to Manu (IX, 185) all sons without exception have a right of inheriting their father's estate because in another passage, the sage declares "Not brothers, nor parents, nor parents but sons are heirs to the estate of the father and Kulluka Bhatta in his gloss on the Institutes of Manu explains that passage as "sons are heirs to the estate of the father". But Jimutavahana, the author of Dayabhaga, simply citing Devala (Dayabhaga X, 7) adopts the rule laid down by the Debala, which he explains as: "The true legitimate son and the rest to the number six are not only heirs of the father but also of kinsmen, that is, of Sapindas and the like; the others are successors of their father but not heirs of Spindas and the like." Golap Chandra Sarkar Sastri in his Tagors Law Lecture on the Hindu Law of Adoption, 2nd edition, at page 392 after citing the above texts states the law thus: "It has all along been understood that according to the Dayabhaga, the Dattaka son is entitled to become an heir of his adoptive father alone, and of no other relation by adoption;" and at page 393 the learned author states: "The rule laid down in the Dayabhaga, according to which an adopted son is entitled to inherit from the adoptive father alone, cannot be supposed to be inconsistent with justice or equity. For, if the usage of adoption to which the Dattaka son owes its existence, were universal, that is, if all persons destitute of male issue adopted sons, collateral succession would be impossible; therefore, the law of adoption itself is opposed to the Dattaka son's right of inheriting from collaterals. Besides, the possibility of collateral succession which again is merely contingent (under the Dayabhaga law) is not taken into account when an adoption takes place; the certain right of inheriting from the adoptive father is under stood on behalf of the adopted son, to be an ample com pensation for all the rights lost by him in his natural family; in fact the rich inheritance of the adoptive father is accepted to be more than all the contingent and the certain rights put together in the natural family. Moreover, there is no reason why one person should be permitted to choose an heir for others; a person may, against the wishes of his relative, choose to adopt a perfect stranger; and he should be at perfect liberty to appoint an heir to his own property in any way he pleases; The inheritance according to Hindu Law, is determined by two principles, namely, the gotra relationship and blood relationship; and as the adopted son as such is not a consanguinal relation, his claim to inherit from a relation by adoption, who is beyond the gotra, is, therefore, supported by neither of the principles. His Sapinda relationship in the family of adoption appears to be misunderstood in conse quences of the different senses in which the word is used. He becomes a Sapinda in the sense of one connected through the funeral oblation of food; and the persons with whom he is so connected are primarily the three ancestors by adoption ; for it is with their funeral oblations that his funeral oblation is united by the Sapindikaran ceremony". The learned author concludes that the modern doctrine, that an' adopted son, except as otherwise provided, resembles the real legitimate son, appears to be perfectly consistent with the principles of equity and justice. I shall presently show from a discussion of decided authorities that under the Dayabhaga school, the adopted son succeeds to his father and he cannot succeed to collaterals. Jogendra Chandra Ghosh in his Hindu Law at page 503 states that there is no warrant that an adopted son becomes heir of relations and citing Bhubonmoyee's case (Supra) observes that if the estate vests on the death of the last male owner in a person other than the widow, adopted son cannot take. I am also of the same opinion. Now reverting to the question of the effect of adoption of the plaintiff in this case, I shall give my reasons on the ques tions I have formulated in the previous paragraph but one, according to the Dayabhaga law as understood from texts and principles A widow cannot be compelled to act upon the author ity to adopt. Therefore, the vesting of the inheritance cannot remain suspended till she exercises her right. In this case we have held that as regards the share claimed under Trahiram's will by the plaintiff it was a life estate which plaintiff's father got and on his death it devolved upon the plaintiff's adoptive father's brothers and went into their possession and that death took place in 1906 and the plaintiff's adoption in 1937 ; but in legal fiction the plaintiff must be taken to have been in the womb of his adoptive mother or born at the date of his adoptive father's death and that position cannot be controver ted in law. The only question that requires my determination then is whether the plaintiff by his adoption can claim that share. My answer to that question will be in the negative. Here in the case immediately on the death of Jyotish, his interest passed to the next heir, whether that heir was his widow or some other person and that heir took with full rights as if no power to adopt existed, subject only to the possibility of his or her estate being divested by exercise of the power of adoption. It is settled law that as soon as the widow has exercised her power of adoption, the adopted son stands exactly in the same position as if he had been born to his adoptive father and his title relates back to the death of his father to this extent that he will divest the estate of any person in possession of the property to which he would have title, if he had been in existence at the date of his adoptive father's death. Here the adoption is by the widow and she herself is heir to her husband. Prior to the Hindu Women's Rights to Property Act, 1937, the result of the adoption was that her limited estate at once ceased and the adopted son became full owner to the estate; but now under that Act, the widow takes along with the adopted son and the adoption will only divest a moiety share of the estate held by her, the other moiety being held by the widow for her life. On an adoption made to a co-parcener in an undivided family, the adopted son takes the place of a legitimate son and so he divests the estate of anyone who in his absence takes his father's interest. Thus on the death of one of two undivided brothers, the property vests by survivorship in the other and on adoption made to the deceased brother by his widow puts an end to survivorship. See Surendra v Sailaja I L R 18 Cal. 385, and Bechoo v. Mankorebai (Supra), following Raghunanda v. Broza Kishore (Supra). It has been held in Amarendra v. Sanatan (Supra), and Vijaysingji v. Shivasingji (Supra), that whether the vesting in the collateral has been by inheritance or survivorship or by reverter, a valid adoption divests the estate of anyone, who would take only after an aurasa or adopted son. The Bombay view that an adoption made by a widow of a predeceased co-parcener would not divest the joint family property vested by inheritance on the death of the last survi ving co-parcener to his heir in Balu Sakharam v. Lalu Sabhaji I L R 1937 Bom. 508 F B, is opposed to the actual decisions in Amarendra's case and Vijasingji's case cited above and has been dissented from in Sankaralingam v. Veluchami I L R 1943 Mad. 309 F B, and in Bajirao v. Ramkrishna I L R 1941 Nag. 707 and has since been overruled by the ludicial Committee of the Privy Council in Anant v. Shankar (Supra). In deliver ing the judgment of the Board, Sir George Rankin observed as follows : "If, then, the plaintiff's adoption was valid, can it be held that it does not take effect on the property which had belonged to the joint family because there was no copar cenary in existence at the date of the adoption ? On this point their Lordships, differing from the majority decision in Balu Sakharam's case, (Supra) held that the adoption being valid cannot be refused effect. That the property had vested in the meantime in the heir of Keshab is not of itself a reason, on the principles laid down in Amarendra's cases why it should not divest and pass to the plaintiff ..We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it. The family cannot be at an end while there is still a potential mother if that mother in the way of nature or in the way of law brings in a new male member. "It may be stated here that the vexed question of divesting is not of much practical importance now as under the Hindu Women's Rights to Property Act of 1937 as amended by the Act of 1938, the widow of a predeceased coparcener would take her husband's estate and the adopted son would be entitled to his rights as coparcener notwithstanding the vesting in the last male coparcener's widow. It is settled law that on adoption by a widow to her deceased husband after the death of a collateral, does not entitle the adopted son to come in as an heir of the collateral. In the present case the question is whether by adoption the plaintiff can come in as an heir to Jagat or Rajchandra or their brothers. I am of opinion that the plaintiff is not entitled to do so. In a case governed by the Bengal school, A and B were undivided brothers. A died in 1851 but a Will bequeathed his share to his widow, C for life (who in 1864) and after her to the sons of his daughter, but the daughter died without issue during C's life-time and on the daughter's death, the widow C made a Will bequeathing the property to D as executor for religious purposes. B brother of A died in 1845 leaving his son E, who died in 1855 giving his widow Bamas undary authority to adopt and the latter adopted the plaintiff in 1876 and it was held that the plaintiff's adopted son would not be entitled to claim the estate of his granduncle A, though he could have done so if he was adopted before the death of C. See Kally Prosonno Gh05e v. Gocool Chunder Mittcr and another (Supra), where the distinguished learned Judge Mitter J. on reviewing the texts of Dayabhaga Hindu Law and the authorities held that the plaintiff's adoption not having taken place when the succession to the property of A opened out on the death of his widow C, he was not entitled to the property and as the plaintiff's adoptive mother could not claim on the death of C to hold the property as trustee for him and as the property must have vested in someone on the death of C and as property once vested cannot be divested, the plaintiff was not entitled to succeed. In the case of Bhubaneswari Debi v. T(ilkomul Lahiri (Supra), which was a case under the Dayabhaga law, Sir Bernes Peacock in delivering the judgment of the Board observed at pages 140-41 : "It appears that the widow from tune to time and that they refused upon the grouad of the forged Will which had been set up by the defendant ; and that conse quently she could not get anyone to give her a son in adoption. After the death of Chandramoni she did adopt the present plaintiff ;but it appears clearly upon the evidence in the record that the plaintiff was not in existence at the time of the death of Chandramoni. The widow never could. by adoption, if there had been no fraud, have made the present plaintiff a reversionary heir of half the estate of Rammohan, because he was not in existence at the time of Chandramoni s death. According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as an heir of the collateral." That case clearly lays down that the plaintiff in this case cannot claim the share bequeathed to his adoptive father by the Trahiram's will. It may be observed that Sir George Rankin in Anant's case stated that " neither the present case nor Amarendra's case brings into question the rule of law considered in Bhubaneswari Debi v. Nilkomul Lahiri (Supra). From the above it follows that the recent decisions of the Privy Council have negatived the propositions that the claim of an adopted son will retrospectively operate regarding the estate of collaterals. See also Gadeyannavar v. Gadeyannavar (1949) 53 C W N (F C)

122. In the case of Amarendra v. Santan (Supra), hijaysingji v. Shivsingji (Supra) and Ananta v. Shankar (Supra) before the Privy Council cited above the estate in question were in fact that of the adoptive father and on adoption, the rights of the adopted son were held to relate back to the death of his adoptive father. The question of divestment by valid adoption and how far and in what way it will operate in the case of collateral succession cannot be said to have already come out of the clouds of confusion. What Sir George Rankin exactly means towards the end of his judgment in Anant v. Shankar (Supra) is difficult to divine. But when one considers the facts of that case and the ultimate decision thereon, it appears that the rule of divestment held to be relating back will apply in the case of collateral succession with the result that if a collateral died long before the adoption and his estate had vested in his heir, and adoption made subsequently, would enable the adopted son to divest that estate if the adopted son is a mere heir of the deceased collateral than the heir who have taken the estate in the meantime. But whether their Lordships of the Judicial Committee of the Privy Council really meant to go so far, appears doubtful as the decision in Anant's case expressly says that the rule of law considered in Bhubaneswari's case and stated by the Board to be that : "According to the law as laid down in the decided cases, an adoption after the death of a collateral does not indicate the adopted son as an heir of the collateral" has not been brought into the question in that case. Why this question was held not before the Board, it is difficult to see. As a matter of fact, on the fact of the case, in respect of the separate property of the deceased brother, the adopted son could not he held to be entitled to divest the intermediate taker unless the rule in Bhubaneswari's case was wrong. Therefore considering the question about the plaintiff s claim to the property of his adoptive father, which was bequeathed to him by the will of Trahiram, from the point of view of the texts of Hindu Law as prevalent in Bengal and the decided cases, I am of opinion, that the plaintiff cannot succeed and therefore the decision of the trial Court in plaintiff's favour as regards that share must be set aside. The result, therefore, is that the plaintiff is entitled to only two annas' share. On other points I entirely agree with my learned brother. A. H. Order accordingly.