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Ramaswami, J.—This is a second appeal preferred against the decree and judgment of the learned District Judge of Ramanathapuram in A. S. No. 18 of 1946 confirming the decree and judgment of the learned Subordinate Judge of Devakottai in O.S. No. 1`` of 1944. This second appeal is being heard by a Bench as Raghava Rao J. was of opinion that an important question of Hindu law of adoption was involved in this case.
The facts necessary for comprehending the questions relating to adoption involved in this case are One Umayal Achi who died some time before January 1928 was the mother of two daughters, viz., Kanthimathi and Sivagami. Kanthimathi who died on 27th August 1935 was got married as the second wife of the second defendant Chockalingam Chettiar. This Chockalingam Chettiar''s first deceased wife was one Visalakshi. Sivagami was the first defendant in the suit. The plaintiff Somasundaram alias Alagappa Chettiar contends that he has been adopted by the second defendant Chockalingam designating his deceased wife Kanthimathi as the adoptive mother in pursuance of the alleged death-bed wishes of that Kanthimathi.
We must now go back a little to set out in what circumstances the plaintiff Somasundaram alias Alagappa Chettiar has come forward with the suit, ft is found from Exs. P. 4 to P. 7, which are extract of entries from the books of account of the A.T.N. AR. firm at Pyu in Rangoon, that on 2nd February 1927 a sum of Rs. 3500 had been credited in the name of Umayal Achi. On 23rd January 1938 the amount to the credit of Umayal was debited as per Ex. P. 5a, and on the same date, it was credited in the joint names of Kanthimathi and Sivagami. It is common ground that this money amounting to Rs. 3827.89 which was Umayal''s money and which was entered in the joint names of Sivagami and Kanthimathi after Umayal''s death, was withdrawn by the sisters. We are not now concerned with this money. Subsequently, nearly a year later, on 27th March 1929, we find an entry Ex. P. 6a in the firm''s accounts "credit of Kanthimathi and Sivagami, daughters of Devarayan Chetti received by cashing Rs. 4000 hundi drawn on Rangoon by Karaikudi S.N.S. firm," This amount seems to have been left to accumulate with interest, and was kept in the joint names of Kanthimathi and Sivagami for nearly two years until 30th September 1931. On 30th September 1931 we find entries Exs. P. 7-f and P. 7g, when the amount as it stood together with interest we divided into two and Kanthimathi and Sivagami were each separately credited with Rs. 2482-103, their respective moieties. Sivagami seems to have withdrawn her monies subsequently, though no entry in the accounts to that effect is filed. Kanthimathi did not withdraw her share and died on 27th August 1935. The dispute is now about the sum of Rs, 2482-103 which was credited in Kanthimathi''s separate name on 30th September 1931, as per entry Ex. P. 7f.
The case for this Somasundara is that he is entitled to this sum of Rs. 2482-10.3 standing to the credit of Kanthimathi in the books of account of A. T. N. AR. firm at Pyu after the death of Kanthimathi on 27th August 1935. The first defendant Sivagami applied for a succession certificate to be granted to her in respect of this money and these succession certificate proceedings which had a chequered career do not concern us here and finally she got a succession certificate on 25th January 1944. This Sivagami obtained the certificate of succession on the ground that this sum of money along with other sums of money belonged to Umayal Achi, the mother of Kanthimathi and Sivagami, as stridhanam property, that Umayal''s daughters took a limited interest in the money and that on the death of Kanthimathi this Sivagami became entitled to Kanthimathi''s share by survivorship. Thereupon the plaintiff Somasundara filed this suit for the relief of declaration that this sum with interest belongs to him as the adopted son of Kanthimathi and for vacating the order passed in the succession certificate proceedings, and for restraining the first defendant Sivagami by an injunction from realising that amount.
In the suit and appeal three contentions were advanced, viz., whether the suit amount was the exclusive private amount of the deceased Kanthimathi or not; secondly, whether the adoption alleged is true; and thirdly, whether even assuming that this adoption did take place as a fact this Somasundara could be considered to have been adopted to the deceased Kanthimathi and whether such an adoption would have the effect of divesting the first defendant of the interest which had become vested in her on the death of Kanthimathi and entitle the plaintiff to claim that amount.
Both the lower Courts found that the money in dispute was the private money of the deceased Kanthimathi and secondly, that the adoption set up was true and thirdly, that, following the two decisions in Sowntharapandian Aiyangar v. Periaveeru Thevar (1) and Subramania v. Muthiah Chettiar (2), Chockalinga could adopt Somasundara designating the deceased Kanthimathi as the adoptive mother and that such an adoption will have the effect of divesting the first defendant of the interest which had become vested in her on the death of Kanthimathi and entitle the plaintiff to inherit the estate of Kanthimathi.
The point raised before Raghava Rao J. which resulted in this second appeal being placed before this Bench and the point which has been raised before us is that Sowntharapandian Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 88 L.W. 45 and Subramania v. Muthiah Chettiar I L.R. 1945 Mad. 638 = 58 L.W. 534 have not been correctly decided and require reconsideration by a Full Bench.
We want to make it clear however that besides this main contention there are subsidiary contentions form-ins the subject-matter of the issues in the lower Courts and both parties have requested that they may be left open for the present and that after the Full Bench decides on the correctness of the two decisions referred to above the further disposal of the second appeal may be remitted to this Bench and which points cannot be disposed of unless this main contention is decided.
We shall first take up the contention regarding the correctness of Sowntharapandian Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 Mad. 45. The correctness of this-decision has come to be doubted by very eminent jurists and in fact was the subject-matter of a reference to a Full Bench in A.S. No. 83 of 1947 by Govinda Menon and Basheer Ahmed Sayeed, JJ. This matter, however, could not be disposed of by a Full Bench because the parties compromised and the hearing of this matter became otiose. The order of reference contains the following :
In Mayne''s Hindu law, tenth Edn. pages 258 and 259, the learned editor discusses the, question regarding the adoption by a widower as well as which wife happens to be the adoptive mother. At page 258, the learned editor observes as follows.
The real difficulty however lies elsewhere; where a person has no wife in existence at the date of adoption, can his deceased wife be said to be the adoptive mother? This question requires much more consideration than it has received. Where an adoption is made by a widow, it relates back to her husband''s death; but where the adoption is made by a widower, there is no reason or principle why it should date back to an earlier date such as the death of his wife. The Dattaka Mimamsa contemplates a living wife and not one who is dead. It is imposing a fiction upon a fiction to say, either that the wife must be deemed to be alive at the date of the adoption, or that the adoption should relate back to the moment of her death. For the legal fiction- of maternity, there must be a wife in existence at the time of the adoption to whom the law can point as the mother For the adoption is to the husband, and not to her. But "in consequence of the superiority of the husband, by his mere act of adoption, the filiations of the adopted as son of the wife, is complete in the same manner as her property, in any other thing accepted by the husband.
This passage is conclusive to show that the acquirer of the property in the son must be a living person, So too, if a bachelor makes an adoption as be is entitled to do the fiction of maternity has no scope and it is impossible to constitute the wife he may marry thereafter, as the legal mother of the adopted boy, She might not have been in existence at the date of adoption. The simpler and more logical conclusion appears to be that a person can be the mother of the adopted boy when she is in existence as a wife at the date of the adoption, whether or not, she consents to it.
The editor remarks in the foot-note
Ramesam J''s dictum in Sowntharapandian Aiyangar v. Periaveeru Thevan (2); nor is there any need to rely on any theory of the adoption relating back to Kothai Ammal''s lifetime proceeds upon a misconception.
Another equally eminent authority has also criticised the correctness of the decision in Sowntharapandian Aiyangar v. Periaveeru Thevan (1). Sir M. Venkatasubba Rao, after his retirement from the High Court of Madras, in reviewing Mayne''s Hindu law, 10th Edn. observed as follows:
By way of refreshing contrast, the criticism of the Full Bench decision in Sowntharapandian Aiyangar v. Periaveeru Thevan (1) is liberal in outlook. That the adopted son of a widower becomes the son of his deceased wife is the rule that outrages both reason and natural feeling, To suppose that the deceased wife is alive, or to relate back the adoption to the moment of her death, as the editor rightly points out, is to impose a fiction upon a fiction. The absurdity of invoking the fiction of maternity in the case of a bachelor who first adopts and then marries is patent.
Subsequently we had occasion to consider the correctness of this decision in S.A. Nos. 1823 and 2212 of 1947, and we respectfully agreed with our learned brethren Govinda Menon and Basheer Ahmed Sayeed JJ. that we could not ignore the circumstance that two eminent jurists the late Mr. S. Srinivasa Avyangar and Sir M. Venkatasubba Rao were of the opinion that Sowntharapandian Aiyangar v. Periaveeru Thevan56 Mad. 759=38 L.W. 45, had not been correctly decided. We observed that we would have referred the matter to a Full Bench but for the circumstance that on the footing that Sowntharapandian Aiyangar v, Periaveeru Thevan 56 Mad. 759=, had not been correctly decided the exten38 L.W. 45sion which the learned Advocate Mr. K Bhashyam asked for in that case was not deducible from the ratio decided in that case.
One of the important reasons for doubting the correctness of Sowntharapandian Aiyangar v. Periaveeru Thevan 56 Mad. 759=38 L.W. 45, was the interpretation placed on the term "Pratigrahitri Yamatha" which if construed as the adoptive mother would support the conclusion in Sowntharapandian Aiyangar v. Periaveeru Thevan 56 Mad. 759=38 L.W. 45, and which if construed as receiving mother would entail serious re-consideration of the conclusion in that decision.
In this connection the learned Advocate Mr. V. V. Srinivasa Aiyangar advances the following argument in support of his contention that even in cases where a person has an only wife living his taking son in adoption without her participating in the actual act of receiving will not constitute her the adoptive mother. The question that arises is whether the Sanskrit expression indicates exclusively the woman who actually does the act of receiving or whether it includes also the wife of the person who takes in adoption even though she does not actually participate in the act of receiving along with the husband or as widow with his authority. According to the rules of Sanskrit grammar it includes and designates the woman who actually receives the boy as his adoptive mother. The Sutram of Panini is as follows: which means, the suffix indicates the actual doer of the act. According to another sutra of Panini which means that in respect of words ending with and when the feminine gender is to be formed must be added as a suffix such as
This contention which is in consonance with the observations of a great commentator on Hindu law, viz. Golabchand Sarkar Sastri on Hindu law, 5th Edn. in Chapter IV, page 170 and the following merits serious consideration.
Turning to Subramania v. Muthiah Chettiar ILR 1945 Mad. 638 = 58 L.W. 584, the correctness of this decision has also come to be doubted. In this decision Mockett and Kuppuswami Aiyar JJ. had to consider the question of the adopted son of a widower divesting the properties which belonged to the deceased adoptive mother''s father''s family -which have already vested in the collateral heirs of the deceased adoptive mother''s father''s family. The learned Judges held that adoption imitates nature (adoption naturum imitate) and therefore such a theory compels that in a widower''s adoption retrospective effect should be given. Secondly, if the adoption by a widow gives right to the adopted son to succeed from the date of the adoptive father''s death, i.e., if the adoption relates back to a period antecedent to the actual date of adoption, viz., the date of the death of the father, why not the vice versa also apply. The decision in Subramania v. Muthish Chettiar ILR 1945 Mad. 638 = 58 L.W. 584, came in for adverse comment and criticism at the hands of Chandrasekhara Aiyar. J. in S. A. Nos. 54, 55, 1090 and 1570 of 1945 and the learned Judge after considering the opinion expressed by the learned Editor of Mayne''s Hindu law, 10th Edn. at pages 258 and 259 and agreeing with that view was inclined to hold that the decision in Subramania v. Muthiah Chettiar ILR 1945 Mad. 638 = 58 L.W. 584, ought to be reconsidered. As a result of that, the second appeals came for hearing before a Bench consisting of Bell and Govindaraiachari JJ. on 9th September 1947. Govindaraiachari J.
in his order dated 9th September 1947 stated that the decision in Subramania v. Muthiah Chettiar (1), required reconsideration and referred the whole matter to a Full Bench. When the matter came before a Full Bench consisting of Gentle C.J., Satyanarayana Rao and Govinda Menon JJ. an application was made to the Court to add a party to the suit and if that was done no useful purpose would have been served by discussing the correctness or otherwise of Subramania v. Muthiah Chettiar ILR 1945 Mad. 638 = 58 L.W. 584. The application to impaled the adopted son was granted relying upon O. I., R. 10, C.P.C. and the Full Bench stated that no view is expressed one way or the other regarding the correctness of the decision in Subramania v. Muthiah Chettiar ILR 1945 Mad. 638 = 58 L.W. 584. The second appeals thereafter were disposed of by a Bench on other points. The result now is that though Bell and Govindaraiachari JJ. doubted the correctness of Subramania v. Muthiah Chettiar (1), and referred the matter to a Full Bench, the situation is exactly the same as it was when the reference was made, because the Full Bench had not expressed any opinion about it. Our learned brethren Govinda Menon and Basheer Ahmed Sayeed JJ. who had to consider the correctness of this decision in A. S. No. 83 of 1947 came to the conclusion that in this state of things they entirely agreed with Bell and Govindaraiachari, JJ., JJ. that Subramania v. Muthiah Chettiar ILR 1945 Mad. 638 = 58 L.W. 584, required reconsideration. They made reference to a Full Bench. But unfortunately for the clarification of this point, the parties compromised the matter and we are exactly in the same state of things as it was when the reference was made by Bell and Govindaraiachari JJ. and Govinda Menon and Basheer Ahmed Sayeed JJ.
In this connection we would refer to a learned article published at page 21 of (1948) 2 M.L.J. Journal portion, where the entire case law for and against has been discussed.
In these circumstances adverted to by us above, we refer the following questions to the Full Bench;
Is the decision in Sountharapandia Aiyangar v. Periaveeru Thevan ILR 1945 Mad. 638 = 58 L.W. 584, correct?
If the answer to that question is in the affirmative, is it open to a widower whose two wives had already died, to adopt a boy and nominate or designate the deceased second wile as the adoptive mother?
If the answer to the second question is also in the affirmative, can such adopted son divest the heirs of his adoptive mother who have already succeeded to the estate before his adoption took place of her share of the property? In other words, is Subramania v. Muthiah Chettiar ILR 1945 Mad. 638=58 L.W. 534 (2), correctly decided?
The papers will be placed before my Lord the Honorable the Chief justice for necessary orders.
(Pursuant to the aforesaid Order of Reference, this appeal coming on for hearing before the Full Bench, the Court expressed the following)
OPINION.
(Delivered by Govinda Menon, d.)
The questions referred to the Full Bench are the following :
Is the decision in Sountharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759= 88 L.W. 45, correct;
If the answer to that question is in the affirmative, is it open to a widower whose two wives had already died to adopt a boy and nominate or designate the deceased second wife as the adoptive mother?
If the answer to the second question is also in the affirmative, can such an adopted son divest the heirs of his adoptive mother who have already succeeded to the estate before his adoption took place of her share of the property? In other words, is Subramania v. Muthiah Chettiar ILR 1945 Mad. 638= 58 L.W. 534, correctly decided ?
In determining the correctness or otherwise of Sountharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759=88 L.W. 45, we have first of all to see how far the basic texts of Hindu law on which an adoption by a widower has been founded have been correctly interpreted and construed.
Section 6, Placitum 50 and S. I Placitum 22 of Dattaka Mimamsa as also S. 3, Cl. 17 of Dattaka Chandrika deal with the subject :
(Dattaka Mimamsa 1-22)
(Dattaka Mimamsa 6.49 and 50)
(Dattaka Chandrika 317)
The correct translation of the pass age is as follows : This being so, if now the question is raised whether in this matter the husband is in need of the wife''s permission, the answer is No. For, on account of the husband''s superior importance by the very fact of his taking a boy in adoption, sonship in him (the boy) is achieved by the wife also, just as in any other thing taken by the husband, ownership is secured by the wife too. In the sense that he does obsequies to the branch (line) of his own adoptive father he is spoken of as swasaaka, adherer to his own branch (line). Because this is so it follows that he is to do obsequies only to his own adoptive father''s line. Also because maternal ancestors of the adopted son means only the father, grandfather and so on of the adoptive mother because of the applicability of the rule about ancestors to the line of the mother also.
In the case of a person (as for a person) given away in adoption according to prescripts, there is the duty of offering oblations only to the manes of the receiving (adoptive) mother''s father and other ancestors.
At the very outset the cardinal principle to be observed is that neither Dattaka Mimamsa nor Dat
taka Chandrika contemplates laying down any rules of inheritance; for Nanda Panditha opens S.1 of Dattaka Mimamsa by stating that the question of affiliation is discussed by him in the following respect, namely, by whom, how qualified, at what time for what purpose, from whom and who may be adopted as a son; and the objects of taking in adoption are explained as for the sake of funeral cake and water and solemn rights. According to Hindu law givers adoption should be by a man destitute of son and, therefore, it follows that a woman is incompetent to adopt, for Vasishta ordains "Let not woman receive or give a son in adoption unless with the consent of her husband." From this the incompetency of the widow to take or give a son in adoption is deduced since the assent of the husband is impossible. Later on the law has developed in the way in which it now obtains to the effect that a widow can adopt to her husband after his death, if he had given her the authority to adopt; and in some parts of the country in the absence of such authority the consent of the nearest of sapindas of the husband is considered the equivalent. Nowhere is it stated that there can be an adoption to a woman for the reason that the object of adoption is to save the soul of the father from path ; and in the case of a woman as it would be shown later, if she conforms to the strict observances ordained by the Sastras and leads a true life, that itself would give salvation to her soul. This is made clear by Placitum 29 in Dattaka Mimamsa where it is stated as follows:
Like these Brahmacharies a virtuous wife ascends to heaven though she has no child if after the deceased of her lord she devotes herself to pious austerity.
It is in the light of these precepts that we have to understand the meaning of the word Barthru pradhanya in S.I. Placitum 22 of Dattaka Mimamsa. The word Pradhanya in its literal connotation is importance, though it might also be understood as superiority; the fact that by the mere act of adoption by the husband the filiations of the adopted as son of the wife is complete is on account of the husband''s right to impose his will upon his wife. The antithesis is made clear in the same Placitum by the statement it is on account of the" superiority or importance of the husband that the wife''s property is accepted as that of the husband.
With this background if S. 6 of Placitum 50 is interpreted it comes to this that because by the adoption, the son becomes the son of the wife, and she was the adoptive mother, the adopted son can count the forefathers of the adoptive mother, in the same way as his maternal grand-sires, making the rule regarding paternal equally applicable to maternal grand sires as well. Then we come to the other authority, namely Dattaka Chandrika. What is laid down in S.3, Placitum 17 is that by reason of the son becoming the adopted son of the mother as well, he presents oblations to the father and other ancestors of the adoptive mother. It is in the light of the above background that the expression Prathigraheethree ya matha has to be understood. Now we shall refer to the various authorities dealing with the subject : Bhattacharyya in his Hindu law, Vol. 1, 3rd Edn. at page 357 says thus : The question as to who are to be reckoned maternal grandfathers of the adopted son is of practical importance when the husband has more than one wife.
Nanda Panditha says" Only the forefathers of the mother that accepts in adoption are also the maternal grandsires of the son adopted and the rest. Prathigraheethree ya matha should be understood literally as whoever (mother) adopts becomes the mother.
Colebrooke''s Digest of Hindu law, Vol. 2, 3rd Edn. in discussing this matter in Book V, Chapter IV, S.8 deals with similar topics. Having stated that there is no law prohibiting a bachelor from adopting, the learned author goes on to discuss who the maternal relations of the adopted boy are, with reference to the offering of oblations and then quotes that oblations shall be offered to the father of her with whom his adoptive father is married. If a son be adopted by a man married to two wives he would have two maternal grandfathers and would claim as maternal ancestry both their lines of forefathers. The learned author then reconciles the difficulty by enunciating "Although there be two sets of maternal ancestors they should be jointly considered as manes of ancestors and they should be thus named in performing the sraddha," But after the decision of the Privy Council in Annapurni Nachiar v. Forbes 23 Mad. 1 (P.C.), affirming Annapurni Nachiar v. Collector of Tinnevelly 18 Mad. 277, that a Hindu having two wives who adopted a son in conjunction with his junior wife can thereby make the junior wife the adoptive mother, with the result that, on the death of the adopted son after inheriting the impartibly property of his adoptive father, the estate devolves upon the junior wife who took part in the adoption in preference to the senior wife, it is open for an adopter to choose one of his living wives and make her the adoptive mother. It is the extension of this principle that has given rise to the present difficulty. Not much help can be obtained from the enunciation in Colebrooke''s Digest of Hindu law, Vol. 11, 3rd Edn. Chapter IV, S.8.
In R. N. Sarkar''s Hindu law, 8th Edn., in Chapter IV, S.7. Sub-S. (iii) at page 205 the learned author discusses the meaning of the word prathigraheethri ya matha
He states that it means the mother that accepts in adoption and expresses his opinion that the term adoptive mother must be taken in its primary meaning of the adoptive mother and not in the figurative sense of the adopter''s wife, in which case no meaning other than receiving mother can be given to that expression. This is based on the Sanskrit rule of legal construction that every word should be taken in its ordinary primary meaning This writer criticises Nanda Panditha''s interpretation and is inclined to take the view that a stranger adopted by a man without the concurrence of his wife or even against the will of his wife would not legally become her son and therefore Barthru pradhanya cannot be extended so far.
In his Hindu law adoption (2nd Edn.) Golapchandra Sarkar at page 199 discusses the adoption by a bachelor or a widower, where also Nanda Panditha''s view that when the adopter is a widower the deceased wife''s ancestors will be the maternal ancestors of the adopted son has not been accepted.
In the Principles of Hindu law, Vol. III by J. C. Ghose at page 200, relating to Dattaka Chandrika we have the following passage. But, the absolutely adopted son presents oblations to the father, and the other ancestors of his adoptive mother only for, he is capable of performing the funeral rites of that mother, only. At page 93 of the same book there is the following passage :
The forefathers of the adoptive mother only, are also the maternal grand-sires of sons given, and the rest; for the rule regarding the paternal is equally applicable to the maternal grand-sires (of adopted sons).
In T. C. C. Sutherland''s translation of Dattaka Mimamsa and Dattaka Chandrika, at page 137, the following passage occurs:
The forefathers of the adoptive mother only, are also the maternal grand-sires of sons given, and the rest; for, the rule regarding the paternal, is equally applicable to the maternal grand-sires (of adopted sons).
At page 199 of the same book, we get the following observations:
But the absolutely adopted son presents oblations to the father, and the other ancestors, of his adoptive mother only; for, he is capable of performing the funeral rites of that mother only.
The opinion expressed by the Editor of Mayne''s Hindu Law, has already been extracted in the Order of Reference to the Full Bench in App. No. 83 of 1947 as also the opinion expressed by Sir Mr. Venkata subba Rao while reviewing Mayne''s Hindu law, 10th Edn. Mayne says :
The real difficulty however lies elsewhere; where a person has no wife in existence at the date of adoption, can his deceased wife be said to be the adoptive mother ? This question requires much more consideration than it has received. Where an adoption is made by a widow, it relates back to her husband''s death; but where the adoption is made by a widower, there is no reason or principle why it should date back to an earlier date such as the death of his wife. The Dattaka Mimamsa contemplates a living wife and not one who is dead. It is imposing a fiction upon a fiction to say, either that the wife must be deemed to be alive at the date of the adoption, or that the adoption should relate back to the moment of her death. For the legal fiction of maternity, there must be a wife in existence at the time of the adoption to whom the law can point as the mother. For the adoption is to the husband, and not to her. But in consequence of the superiority of the husband, by his mere act of adoption, the filiations of the adopted as son of the wife, is complete in the same manner as her property, in any other thing accepted by the husband. This passage is conclusive to show that the acquirer of the property in the son must be a living person. So too, if a bachelor makes an adoption as he is entitled to do, the fiction of maternity has no scope and it is impossible to constitute the wife he may marry thereafter, as the legal mother of the adopted boy. She might not have even been in existence at the date of the adoption. The simpler and more logical conclusion appears to be that a person can be the mother of the adopted boy when she is in existence as a wife at the date of the adoption, whether or not she consents to it,
The editor remarks in the foot-note: "Ramesam J''s. dictum in Sountharapandiayan Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 L.W. 45, ''Nor is there any need to rely on any theory of the adoption relating back to Kothai Animal''s lifetime proceeds upon a misconception,
Sir M. Venkatasubba Rao after his retirement from the High Court of Madras in reviewing Mayne''s Hindu Law, 10th Edn., observed as follows: "By way of refreshing contrast, the criticism of the Full Bench decision in Sowntharapandian Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 L.W. 45 is liberal in outlook. That the adopted son of a widower becomes the son of his deceased wife is a rule that outrages both reason and natural feeling. To suppose that the deceased wife is alive, or to relate back the adoption to the moment of her death, as the Editor rightly points out is to impose a fiction upon a fiction. The absurdity of invoking the fiction of maternity in the case of a bachelor who first adopts and then marries is patent."
The learned Judges who made the reference in the present case have discussed the root-meaning of the various expressions and it is unnecessary to restate them. The question, therefore, is what is the meaning to be given to the expression Prathigraheethree ya matha . As stated already the literal meaning is receiving mother, but almost all the commentators and text writers have interpreted the expression to mean adoptive mother. Therefore it is argued on behalf, of the appellant that in the case of a widower as it is impossible to have a receiving mother, the application of the term "adoptive mother" is incompatible with the true meaning of texts. It seems to us that there is very little difference even if the word- is to be understood as adoptive mother. For one thing Dattaka Mimamsa and Dattaka Chandrika do not contemplate either expressly or by implication an adoption by a widower. Nor are there any passages anywhere which can be reconciled with such a state of things. Even though in S. 1, Placitum 22 of Dattaka Mimamsa the expression used is Barthru pradhanyath there is no indication of the superiority of the husband (granting that Pradhanya means superiority) is intended to extend over the soul of the deceased wife. In Apte''s Sanskrit dictionary the meaning of the word Pradhanya is given as being first precedence, priority etc. There cannot be any precedence or priority over a person that does not exist. Nor can there be superiority over a deceased individual. We are fully satisfied that Pradhanya referred to in S.1. Plactium 22 of Dattaka Mimamsa can apply only to cases of a living wife. Reading S.1, Placitum 22 and S. 6/50 of Dat-taka Mimamsa together, it will be seen that it was never in the contemplation of the authors to bring in a case of a deceased wife in the matter of adoption by a widower.
Further it is not necessary in the case of woman to have the fiction of an adopted son for her salvation. In Vyavastha Darpana (Vol. 1) at p. 34, by Shamachurn Sircar we find the definition of the word Pathivritha . In Dattaka Mimamsa S.1, Placitum 29, it is stated that the wife ascends to heaven though she has no child if after the decease of her lord she devotes herself to pious charity. In Maxmuller''s Sacred Books of the East, Vol. 33, Chapter XXIV, S.11, at page 369 in translating Brihaspathi, the learned author says:
A wife is considered half the body of her husband equally sharing the result of his good or wicked deeds; whether she ascends the pile after him, or chooses to survive him leading a virtuous life, she promotes the welfare of her husband.
There are similar passages in Strange''s Hindu law, Vol. 2 page 218. Maxmuller in his Sacred Books of the East, Vol. XXV, in his translation of the laws of Manu, in Chapter IX, S.45 states that the husband is declared to be one with the wife. At page 79 of Strange''s Hindu law, 3rd Edn., Vol. I, the following passage occurs;
The better reason, therefore, perhaps is, that the necessity of a son to celebrate the funeral rite regards the man rather than the woman who depends less for redemption upon such means so that whenever a woman duly authorised, adopts, it is on her husband''s account and for his sake, not her own.
From these authorities it is clear that no adoption is required for the salvation of the wife.
Mr. A. V. Narayanasami Aiyar for the respondent contended that the text books quoted above do not negative the idea, that if as a result of marriage the husband and wife constitute one spiritual entity then by the adoption, the husband cannot prevent a deceased wife from becoming the mother by fiction. That is, even if the husband so desires, he cannot put an embargo on the wife becoming the adoptive mother, as the adoption should be to the entity which is a combination of the husband and the wife. What makes a living wife the adoptive mother of the boy adopted, is the existence of the relationship of the husband and wife which is brought about as a result of fusion consequent upon the marriage resulting in a single entity or single soul with two physical bodies. Learned Counsel further contends that even after the death, the wifehood or pathi pathni bavam continues for adoption, and for this argument a passage from Vardyanatha Dikshitar''s Sradha Kanda is cited, where it is stated that as according to Vedas there is the quality of oneness between pathi and pathni, the Sradha to the mother is fulfilled by the seven offerings to the male ancestor. He quotes Chapter IX, Verse 45 from Manu which is as follows :
He only is a perfect man who consists of three persons united, his wife, himself and his off spring. Thus says the Veda and the learned Brahmins propound this maxim likewise. The husband is declared to be one with the wife.
The Tamil translation is to the following effect:
Learned Counsel then propounds the proposition, that as a result of adoption, whenever it may take place, the legal relationship of the parents and the child is brought about between the person who is dead and one who is living. There can be no hiatus in this relationship in point of time. Therefore the line of heredity must be held to be continuous, and the rights of the adopted son must relate back to the death of the adopted parent (though transactions of an intermediate owner are held to be valid).
If that is so, it is urged that there is no reason why, on account of the spiritual unity between the husband, and wife the deceased wife should not be deemed to be the mother of the adopted by.
We have quoted authoritative texts to the effect that by a widower''s adoption the adopted boy can have no maternal relations, as nothing of the deceased wife survives in Her husband, whereas the body of the husband survives in the wife, and that the fiction of an adoptive mother based on a widower''s adoption is a misnomer.
Having regard to the texts referred to we have first of all to see how the interpretation put upon them in the Various decisions can be justified.
In Annapurni Nachiar v. Collector of Tinnevelly 18 Mad. 277, which was confirmed by the Judicial Committee in Annapurni Achi v. Forbes 23 Mad. 1 (P.C.), both the learned Judges considered the meaning of S.1, Placitum 22 and S.6, Placitum 50 in Dattaka Mimamsa and S.3, Placitum 17 in Dattaka Chandrika. In their view the word prathigraheethri translated as "adoptive" was intended to refer to a living wife and not to a deceased one. At pages 281 and 282 in the judgment of Best J. and at page 283 in the judgment of Shephard J., the matter is discussed Best J. was inclined to accept the literal meaning of the expression prathigraheethri namely "receiving" though it was translated as adoptive, and nowhere do we find any indication of an adoptive mother by fiction being considered as fitting in with the meaning of the expression prathigraheethri. Shepherd J. in discussing the expression "adoptive mother" in Dattaka Chandrika and Dattaka Mimamsa is of the onion, that it is not used in reference to the case of several mothers but was intended to draw a distinction between a wife who has taken part in the receiving of the child and any other wife and, therefore, where a person has more than one wife, the adoptive mother would be one who has taken part in the adoption and received the boy. The learned judges did not intend to lay down that the expression prathigraheethri should be intended to be applied to any one other than the wife who is associated with the husband in adoption There was no contemplation, whatever, of
extending the meaning to the case of a wife who is dead as it was far from the minds of the learned Judges to extend the principle to a deceased wife. The Privy Council in confirming the judgment of the High Court in Annapurni Nachiar v. Collector of Tinnevelly 18 Mad. 277, made no reference to the meaning attributed to the expression prathigraheethri but seemed to have taken for granted that it should apply only to a living or sentient being and not by fiction to one who is no more. It is now definitely clear that the article printed at page 229 in 9 M.L.J, of Journal portion was a statement of instructions sent by a very eminent lawyer, who later on became a Judge of this Court, to the Counsel in England who argued for the respondent before the Judicial Committee in Annapurna Nachiar v. Forbes 23 Mad. 1 (P.C.), and since that article has been referred to and considered both in Sundaramma v. Venkatasubba Aiyar 49 Mad. 941, and Sountharapandi Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 L.W. 45, we feel that it may be referred to as affording guidance in the elucidation of the question. Throughout this article there is no suggestion that the texts referred to above from Dattaka Chandrika and Dattaka Mimamsa related to any circumstance other than an adoption where the wife is actually associated. At page 242 the passage from Dattaka Mimamsa VI, S.50 is translated thus: "The forefathers of the mother that accepts in adoption are also the only maternal grandsires of sons given and the rest" and the learned author states that in this passage the word "eva" is meant to exclude the paternal ancestors of the natural mother. But it can be taken also to exclude the paternal ancestors of the adoptive mother''s co-wives. This is extracted from commentaries on Hindu law by Bhattacharya. There is no idea whatever even by analogical extension to apply the expression adoptive mother to one who is dead long ago.
There are passages in the same article where reference is made to receiving mother at pages 230-231. At page 233 we find the following passage:
The only rational principle is that though a son may be adopted to a deceased male even long alter his death by his widow under property yet there is no such thing as an adoption to a female either during her lifetime or after death. She may become mother by fiction at the time of the adoption to her husband but no female could become the mother of a son adopted by or to her husband after her death nor could a female become the mother of a son adopted by her husband before her marriage. No wife could become the mother of a son adopted by or to her husband either subsequent to her death or prior to her marriage and among the wives existing at the time of the adoption only one of them could become his mother.
The learned author is therefore positive that an adoption made by a widower could not make his deceased wife even by fiction the mother of the adopted boy. At page 234, while discussing the meaning of the expression "Prathigrahsethri" the adoptive mother is not referred to as the wife of the adoptive father but as the mother who receives the boy in adoption and it is her ancestors only that form the line of maternal ancestry to the adopted son. It is, however, noted that in the two texts the word eva only is used to exclude the natural mother and her ancestors, but that does not detract horn the force of the inference which is deducible from the two texts, that the receiving wife is the adoptive mother. The view that no female could become the mother of the son adopted by or to her husband after her death is entitled to great respect the question that was being discussed arose out of an adoption to which one of the wives was a party.
The earliest case in which the texts of Dattaka Mimamsa and Dattaka Chandrika were referred to was reported in Uma Sunker v. Moitra V. Kali Komul Mozumdar 6 Cal. 256, (F.B.), where a Full Bench of five Judges came to the conclusion, that the adopted son takes by inheritance from the relatives of his adoptive mother in the same way as a legitimate son. The facts of the case show that the adoption was made by the widow under authority from her husband and therefore, the question of the deceased wife becoming the mother by fiction did not arise. Mitter, J., who delivered the leading judgment of the Full Bench discussed S. 6, placitum 50 of Dattaka Mimamsa and S.3, placitum J7 of Dattaka Chandrika and understood those authorities as referring only to a mother who has actually taken part in the adoption. It is a fact that the question, as at present mooted, did not arise for consideration. But we have to remember that, if the texts contained in Dattaka M. mamsa and Dattaka Chandrika admitted of an interpretation as is now sought to be put upon them, probably some reference might have been made to it in the course of the learned discussion.
Affiliation of a dead wife has never been in the contemplation of any of the authoritative text writers. No case has ever come up before any of the other High Court except ours.
It is now necessary to discuss the cases of the Madras High Court on this topic. For the first time the subject came up for consideration before Devadoss, J., in Venkatasubbier v. Sundaramma 48 M.L.J. 126 = 20 L.W. 225 The learned Judge relied upon the opinion of Golabchandra Sarkar Sastri on his work on Hindu law of adoption at pages 215, 217 and 419, where the learned author in discussing the texts in Dattaka Mimamsa was of the view that it is only the wife who joins her husband in adopting the son that becomes the adoptive mother. This decision of Devadoss, J., went up in appeal and was reversed by Phillips and Madhavan Nair, JJ., in Sundaramma v. Venkatasubbier. 49 Mad. 941. The reasoning of Phillips, J., is based mainly upon the fact that under the Hindu law an adopted child is completely severed from his natural paternal and maternal relations and is substituted into the family of the adopter as if he were born in it and relying upon the decisions in Uma Sankar v. Moitro V. Kali Komul Muzumdar40 Bom. 270 at 288, Nagindas Bhagavan-das v. Bachoo Harikrisandas 40 Bom. 270 at 288 and Narashimha v. Parthasarathi 48 M.L.J. 126 = 20 L.W. 225, the learned Judge felt compelled to lay down that if the adopted son has lost all relationship with his natural maternal line it is necessary that a maternal line has to be found for him in the adoptive family, which could be done only if by fiction it is posited that the deceased wife of the adoptive father would become the adoptive mother. The learned Judge felt the difficulty that if a bachelor took some body in adoption there will be no adoptive mother at all; but he brushed aside that contingency on the ground that it would only be an exceptional case. According to him, it was necessary to find out a mother for the adopted boy, and so the theory of the deceased wife of the adopter becoming the adoptive mother of the boy adopted came to be enunciated. In this connection reference was made to placitum 1 verse 22 of Dattaka Mimamsa. The opinion of Golabchandra Sastri Sarkar relied upon by Devadoss J. did not find acceptance at the hands of Phillips J. Accordingly prominence was given to the anomalous position of an adopted boy if the adoptive father had no wife, in which case he would be motherless, and in the opinion of the learned Judge such a situation could not be contemplated especially since the adopted boy has lost all connection with his natural family. But this reasoning does not take note of the fact, that after adoption there are certain family ties from which the adopted boy cannot completely sever himself from his natural relations, for instance, he is prevented from marrying among the prohibited degrees not only among his natural father''s relations but also from among the relations of his natural mother. Adoption is not exactly a replica of birth in the new family and such being the case there is no necessity for this Court to find out a mother for the adopted boy. The learned Judge has also not considered the basic reasoning underlying the texts in Dattaka Mimamsa and Dattaka Chandrika
which refer only to a living wife where the expression prathigraheethree ya matha is translated as receiving mother or adoptive mother. In the Manjari the Sanskrit commentary on Dattaka Mimamsa the expression prathigraheethree ya matha has been construed as palaka matha The distinction is between the Janaka matha (the mother who gave birth to the son) and Palaka matha. Obviously neither Nanda Panditha nor the commentator ever contemplated a person who was dead at the time of the adoption as a palaka matha. The reasoning of the other learned Judge, Madhavan Nair J. practically proceeds on the footing that since an adopted son occupies the same position and has the same rights and privileges in the family of the adopter as a legitimate son, the fiction of his becoming the son of the deceased wife of the adopter is possible. Though it is true that when a bachelor adopts the adopted boy could have no adoptive mother, the fiction cannot be made to assimilate to nature in that case. The analogy, however, can and therefore, should be extended to the case where the adoptive father''s wife had died as it is possible to give full effect to the fiction by ascribing the deceased wife of the husband as the adoptive mother of the child. Neither of the learned Judges bestowed sufficient thought on the fact that Dattaka Mimamsa placitum VI, S. 50 in using the expression Prathigraheethree ya matha should be understood only in the sense of a participant in the ceremony of adoption. Otherwise there was nothing wrong in using the expression "wife of the adoptive father". The context in which the word appears is indicative of the fact that a positive act is attributed to the adoptive mother and it is not intended to effect a legal or spiritual relationship alone as it is intended to create a kind of relationship consequent upon the ceremony of adoption. The analogy of the wife of the adoptive father becoming the adoptive mother if she were alive at the time of the adoption by the mere reason of the relationship of the husband and wife is justified by the fact of the existence of the wife at the time of the adoption. The learned Judge also refers to the apparently contradictory views expressed by Golabchandra Sarkar Sastri in his treatise on Hindu law of adoption. Both in S. 6 placitum 50 of Dattaka Mimamsa and in S. 3 of placitum 17 of Dattaka Chandrika the expression adoptive mother is used only in contradistinction to the adoptive father as used in the earlier of the texts and Nanda Panditha did not contemplate an adoption by a widow to her husband either with his authority or with the authority of his kinsmen. This aspect of the case has not been Considered by the learned Judge. If, as a matter of fact, it had been considered they would probably have held that the expression "adoptive mother" should mean only the mother who actually jointed in the adoption. Here again the necessity of finding out a mother for the adopted boy has led to the extension of the fiction to cases where the adoptive father''s wife had already died. We do not feel justified in extending the fiction any further than actually necessary.
The line of reasoning adopted by Phillips and Madhavan Nair JJ. found favour with the Judges who decided the case in Soundara Pandia Aiyangar v. Periaveeru Thevan 56 Mad. 759=38 L.W. 43, the correctness of which we have to decide. Rameaam J. in Sountharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759= 38 L.W. 43, relies upon the basic proposition enunciated in Sundaramma v. Venkatasubbier 49 Mad. 941, that every adopted son should have an adoptive father and an adoptive mother, and that being the case if the adoptive father''s wife is dead she should be deemed to be the adoptive mother, and therefore, translating the word prathigraheethree ya matha in Dattaka Mimamsa section VI verse 50 as "adoptive mother" the deceased wife is by means of a fiction considered as such adoptive mother. It may be that in view of the context
in which that word is used it might mean adoptive mother. But in our opinion the learned Judge has failed to note that Dattaka Mimamsa no where contemplates any succession to the deceased wife of an adoptive father. In referring to the decision in Annapurni Nachiar v. Forbes 23 Mad. 1, Rameaam J, agrees that that decision is based on the fact of the association of the wife and not because of the existence of the wife- In another place the learned Judge states that the ratio decided of the judgment of the Privy Council in Annapurni Nachiar''s case is not that the wife was the receiving mother but that she was associated by the husband with him. The difference between the two is somewhat difficult to understand. The association by the husband with him of his wife at the time of adoption is equivalent to be-coming a receiving mother. The reasoning of Ananthakrishna Aiyar J. is also on the same lines as that of Ramesam J. and both of them have considered arguments pro and con on this matter. In Smrithi Chandrika Chapter IX, S.2 placitums 15 and 28 when dealing with succession by a daughter''s son of his maternal grandfather''s property the word used is Dhauhitra that is the off spring of the daughter and cases of adoption where the wife is dead would not answer to that description. We feel that the expression prathigraheethree ya matha should mean adoptive mother, that is, a mother who is alive on the date of adoption. Cornish J. while agreeing with the other two learned judges relied upon the observations of Mitter J. in Uma Sankar Moitra v. Kali Komul 6 Cal. 256, and dissents from the opinion of Golabchandra Sarkar Sastri on the construction of the placitum in Dattaka Mimamsa. The learned Judge also notes the difficulty that might arise where the adoptive father had married more than one wife all of whom had died by the time of adoption but got over this difficulty by saying that the case before them was not complicated by any question of that sort.
If we agree with the conclusion in Sauntharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 L.W. 45, the second question referred to the Full Bench, namely, whether it is open to a widower whose two wives had already died to adopt a boy and nominate or designate the deceased second wife as the adoptive mother, will have to be considered. The entire reasoning of the learned Judges would become unsupportable, if the ground is cleared by stressing the fact that Dattaka Mimamsa and Dattaka Chandrika do not make any reference to a wife who is dead and, therefore, the expression prathigraheethree ya matha even if translated as "adoptive mother" will have reference only to a living person, as it is impossible to have affiliation to the wife unless the adoption is made to relate back to the death of the wife of the adoptive father.
The question for consideration is whether the adoption by a widower can have such retrospective effect. In the case of adoption by a widow there is no doubt that the adopted son should be deemed to have come into existence on the death of the husband, but where the adoption is by a widower it is now well settled that such an act would take effect only from the date of the adoption. The decisions in Veeranna v. Sayamma 52 Mad. 398 = 29 L.W. 309 Harek Chand Babu v. Bijoy Chand Mahatab 2 GLJ 87 have not been taken note of by the learned Judges in the Full Bench case. The adoption is admittedly not to the wife but to the husband and where the husband is alive if it can take effect only from the date of his adoption then by no process of reasoning or analogy can it be said that it will be operative from the date of his wife''s death.
We have shown that the other reasoning that a mother should somehow be found for the adopted boy is unsound as in the case of an adoption by a bachelor who subsequently marries; if he marries more than one wife the question will be who is to be the adoptive mother. We have no hesitation in holding, therefore, that since the texts do not contemplate a deceased wife as a receiving mother either literally or by fiction the expression prathigraheethri ya matha could refer only to a living wife. It is possible to conceive of many difficulties if we accept the correctness of the decision in Soundarapandia Aiyangar v. Periaveeru Thevan (4) most of which have been pointedly referred to in the arguments of the learned Advocate-General before the Full Bench (see pages 58, 59 and 60 in 65 M.L.J. page 58 where also the same case is reported). For brushing aside the incongruous situations that might arise, the learned Judges who decided the Full Bench case are not able to find any satisfactory reasoning except stating that they did not arise in the case they had to decide. A very intriguing situation might arise if the wife before her death had changed her religion in which case the question will be whether it can be said that the adoption made by her husband would have the effect of making the boy adopted to succeed to one who belonged to a different religion. Under the strict principles of Hindu law the conversion of the wife to a different religion would not sever her relationship, of marriage from her husband, and if that is so the wife would according to the Full Bench decision be the mother of the adoptive boy. This is a situation which cannot be contemplated with equanimity.
Accepting as correct the principle laid down in Soundarapandia Aiyangar y. Periaveeru Thevan 56 Mad, 759 = 38 L.W, 45, Subba Rao, C. J. of the Andhra High Court in Ramakrishnayya v. Narasayya (5) had to consider the question of divesting an estate over which the deceased wife of a Hindu had a life estate and which was inherited by her paternal relations, as a result of an adoption made by her husband after her death. The facts of the case show that on the death of the wife as the life estate which she took from her paternal side came to an end the property was inherited by her father''s relations. It was thereafter that her husband took a boy in adoption and the question was whether the adopted son could be said to be son of the deceased wife so that he might divest the estate over which the deceased wife had a life estate and whether the decision in Subramania v. Muthiah Chettiar ILR (1945) Mad. 638 = 58 L.W. 534 (1954)1 M. L. J. 630=67 L.W. 515 (S.C.) which would have that effect is correct. The learned Chief Justice on an examination of the authorities was not inclined to agree with the correctness of that decision and therefore he held following the recent decision of the Supreme Court in Krishna Rao Kango v. Narayana Devji Kango (1954)1 M. L. J. 630 = 67 L.W. 515 (S.C.) that there was no question of divesting succession to collaterals. In that decision the correctness or otherwise of the decision in Sountharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 L.W. 45, was not considered but one of the anomalous situations arising out of it if that decision was held to be correct came in for consideration. The actual point that arose for determination there does not concern us so far as the present case is concerned though we agree with the conclusion arrived at by the learned Chief Justice. To the extent to which that decision restricts the question of relation back we do not find any difficulty in following it. The other question which the learned Chief Justice had to decide was who would be the adoptive mother of a boy taken in adoption by a widower whose two wives had died before adoption, and the opinion expressed was that the second wife who was married after the death of the first wife should be deemed to be the adoptive mother. There are some passages in the judgment with which
it will not be possible for us to agree. What would be the position if the second wife had been married even during the lifetime of the first wile and she had pre-deceased the first wife and the adoption took place after the first wife had also died, who should be considered the adoptive mother of the boy adopted by the widower, whether it is the second wife who died first or the first wife who died subsequently ? It is a difficult question to answer. This aspect of the case does not seem to have been present before the learned Chief Justice. In any event the decision in Ramakrishnayya v. Narasayya (1954) 2 M. L. J. (Andhra High Court) 53 = 67 L. W. 1036 manifests some theoretical and practical difficulties in holding that Sowntharapandia Aiyangar v. Periaveeru Thevan''s case (3), lays down the correct proposition.
In Thirumaleshwara Bhatt v. Ganapayya (1952) 2 M.L.J. 716 = 65 L.W. 1056, Chandra Reddi and Rama-swami JJ. have doubted the correctness of Sowntharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 L.W. 45. In that case it was not necessary to decide that question because even accepting that the decision had laid down the correct proposition of law still it cannot be said that it is open to a Hindu to name a non-existent deceased wife in preference to the existing wife as the mother of the boy adopted by him so as to entitle him to succeed to the estate of such a predeceased wife''s father. But the learned Judge make it sufficiently clear that they felt considerable doubt about the correctness of the decision in Sowntharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759 = 38 L.W. 45. They also refer to the article "Theories of Maternal Affiliation in Adoption" contained in page 21 of the journal portion of 1948 (2) M.L.J
Our answer, therefore, to the first question referred to the Full Bench is that Sowntharapandia Aiyangar v. Periaveeru Thevan 56 Mad. 759=38 L.W. 45 has not been correctly decided. In view of that, the answer to the second question is in the negative and the third question has also to be answered in the negative.
(The second appeal and the civil miscellaneous petition coming on for final hearing before Govinda Menon and Ramaswami JJ, the Court delivered the following);
JUDGMENT.
(16-11-1955).
(Delivered by Govinda Menon, J.)
C.M.P. No. 9629 of 1954 :- Mr. Narayanaswami Iyer very vehemently argues that the second defendant, who is the husband of the deceased Kanthimathi, should be trans-posed as second plaintiff, in which case, the present appellant who was the first defendant would have no preferential claim to the estate of Kanthimathi, Apart from the fact that this application was filed on 8th October 1954, nearly a year after the second appeal was heard by the earlier Full Bench of five Judges, and it had to be adjourned, the fact remains that the transposition of the second defendant as second plaintiff would not settle the matter. The question, whether the amount in dispute was Kanthimathi''s stridhanam property over which the preferential heir is her husband and not her sister, has still to be gone into, for it is seen from the evidence that the original nucleus came from Umayal Achi, the mother of both Kanthimathi and the first defendant.
Mr. Narayanaswami Iyer contends that the learned District Judge has given a finding that the amount cannot be traced to Umayal Acht''s acquisition. That is a matter to be gone into in the second appeal if we are inclined to transpose the second defendant as the second plaintiff. But as the application has been made very late, more than seven years after the filing of the second appeal, we think we will not be justified in invoking the discretionary power vested in us to allow the application under O.1, R.10. C.P.C. The petition is therefore dismissed. S. A. No. 621 of 1947 :-Now as the Full Bench has held that the plaintiff cannot be the adopted son of Kanthimathi, he has no locus standi to file the suit. But Mr. Narayanaswami Iyer, the learned Counsel for the first respondent, contends that the second respondent ought to be imp leaded as the second plaintiff. We have, in our judgment in C. M. P. No. 9629 of 1954, declined to accept that request. But this would not prevent the second defendant from filing regularly constituted suit to recover the amount from the first defendant, if he is able to show that he is the preferential heir to the estate of Kanthimathi so far as the amount is concerned, and that he is legally within his rights. The second appeal is, therefore, allowed and the suit is dismissed; in view of the fact, that at the time the plaintiff filed the suit, Sowntharapandian Aiyangar v. Periaveeru Thevan (1) held the field, we direct the parties to bear their costs through out.
V. C. S.