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PETITIONER: GURAMMA BHRATAR CHANBASAPPA DESHMUKH AND ANOTHER

       Vs.

RESPONDENT: MALAPPA

DATE OF JUDGMENT: 19/08/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1964 AIR  510            1964 SCR  (4) 497  CITATOR INFO :  R          1966 SC 984  (8,9)  RF         1967 SC 569  (9)

ACT: Hindu Law-joint family-Manager, powers of-Gifts of  property to  stranger  and to daughter after marriage,  validity  of- Adoption-Whether  existence  of son  in  embryo  invalidates adoption-partition-Sudras  of  Bombay  Presidency-Share   of adopted son vis-a-vis natural born son.

HEADNOTE: ’A’ died on January 8, 1944.  He left behind him three wives and two widowed daughters, children of his predeceased wife. The  senior most widow filed a civil suit for partition  and possession   of   1/6th  share  after  setting   aside   the alienations  made by her husband on January 4 and  5,  1944. It  was  alleged that at the time of the death  of  ’A’  his youngest wife was pregnant and that she gave birth to a male child  on October 4, 1944.  On January 30, 1944, the  senior most  widow took her sister’s son in adoption.  A  few  days before  his death ’A’ executed two deeds of  maintenance  in favour  of his two wives (defendant Nos.  1 and 2) and  also executed deeds of gift in favour of widowed daughter, a  son of  an  illegitimate son and a relative.   Long  before  his death  he  also  executed  two  deeds  viz  one  a  deed  of maintenance and a deed of gift in favour of the senior  most widow  (the  plaintiff).  To this suit the two  widows  were made defendants 1 and 2; the alleged adopted son,  defendant 3, (1)  A.I.R. 1960 Mad. 443. (2)  L. R. 63 I. A. 372. (3) [1955] 2 S.C.R. 1140. 498 the  alleged posthumous son, defendant 4; and  the  alienees defendants  5  to  8. These two appeals  arise  out  of  the certificate granted by the High Court. Held (1) that the existence of a son in embryo does not  in- validate an adoption. Narayana  Reddi v. Varadachala Reddi, S. A. No. 223 of  1859 M.S.D. 1859, P. 97, referred to. Nagabhushanam  v. Seshammagaru, (1878-81) I.L.R. 3 Mad.  180

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Shamvahoo v. Dwarakadas Vasanji, (1888) I.L.R. 12 Born. 202, Daulat Ram v. Ram Lal, (1907) I.L.R. 29 All 310, approved. (2)that  the  High  Court  was  right  in  affirming   the alienations made in favour of the plaintiff and was  equally justified in setting side the alienations made in favour  of defendants  1 and 2. The former documents were  executed  by "A"  in  1937  and  1939 when  he  was  the  sole  surviving coparcenar  whereas the latter documents were executed  when he had ceased to have that power because the malechild i.e., 4th defendant was already conceived. (3)that  a  managing member of the family  has  power  to, alienatefor value joint family property either for  family necessity  or  for  the benefit of  the  estate.   The  sole surviving  member of a coparcenary has an absolute power  to alienate  the family property, as at the time of  alienation there  is  no  other member who has joint  interest  in  the family.   If another member was conceived in the  family  or inducted  therein by adoption the power of the  manager  was circumscribed as aforesaid and if the alienations were  made by  the manager or father for a purpose not binding  on  the estate,   they  would  be  voidable  at  the   instance   of subsequently born son or adopted son. Avdesh Kumar v. Zakaul Hassain, I.L.R. [1944] All 612, Chan- dramani  v.  jambeswara, A.I.R. 1931 Mad.  550  and  Bhagwat Prasad Bahidar v. Debichand Bogra, (1941) I.L.R. 20 Pat.727, referred to.      (4) that a gift to a stranger of joint family  property by  the  manager  of  the  family is  void  as  he  has  not the  absolute power of disposal over the joint Hindu  family property.  Partha Sarathi Pillai v. Tiruvengada, (1907) I.L.R. 30 Mad. 340, referred to. (5)  that  the  Hindu  Law texts conferred a  right  upon  a daughter or a sister, as the case may be, to have a share in the family property at the time of partition.  The right was lost  by efflux of time.  But it became crystallized into  a moral obligation.  The father or his representative can make a  valid  gift  by  way  of  reasonable  provision  for  the maintenance  of  the  daughter,  regard  being  had  to  the financial  and other relevant circumstances of  the  family. By custom or by convenience, such gifts arc made at the time of   marriage,   but  the  right  of  the  father   or   his representative  to make such a gift is not confined  to  the marriage occasion. It is a moral obligation and it continues to  subsist  till  it  is  discharged  Marriage  is  only  a customary occasion for such a gift.  But the 499 moral  obligation  can  be discharged at  any  time,  either during the life time of the father or thereafter.   Applying the aforesaid principles, the deed of gift made by father to the  daughter, i.e. 8th defendant in the present  case,  was within his right and certainly reasonable. Jinnappa Mahadevappa v. Chimmava, (1935) I.L R. 59 Bom. 459, disapproved. Vettorammal v. Poochammal, (1912) 22 M.L.J. 321, Kudutamma v.   Narasimhacharyalu, (1907) 17 M.L.J. 528, Sundaramaya v. Seethamma,  (1911)  21  M.L.J.  695,  Ramaswamy  Aiyyar   v. Vengidsami  Iyer,  (1898)  I.L.R. 22  Mad.  113,  Bachoo  v. Mankorebai  (1907) I.L.R. 31 Bom. 373, Ramalinga  Annavi  v. Narayana Annavi, (1922) 49 I.A. 168, Sithamahalakshmamma  v. Kotayya, (1936) 71 M.L.J. 259, Annamalai v.  Sundarathammal, (1952)  2 M.L.J. 782 and Churaman Sahu v. Gopi Sahu,  (1910) I.L.R. 37 Cal.  1 approved. (5)  that  the  Hindu Law applicable to  Sudras  applies  to lingayats as well.

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(6)  that in Bombay Presidency the rule accepted in  Dattaka Chandrika  has  never  been followed and  the  share  of  an adopted  son  in competition with a natural born  son  among Sudras  has always been 1/5th in the family  property,  i.e. 1/4th of the natural born son’s share.  The rule in  Dattaka Chandrika  is  that  among  Sudras an  adopted  son  and  an after  born  natural  son take equal  share  in  the  family property and it is followed in Madras and Bengal provinces. Tirkangauda Mallangauda v. Shivappa Patil, I.L.R. 1943  Bom- 706,  Gopal Narhar Safray v. Hanumant Ganesh Safray,  (1879) I.L.R.  3  Bom.  273, Gopalan  v.  Venkataraghavulu,  (1915) I.L.R.  40  Mad. 632 and Asita v. Nirode, (1916)  20  C.W.N. 901, referred to. Arumilli  Perrazu  v. Arumilli Subbarayadu, (1921)  48  I.A. 280, distinguished. Giriapa  v. Ningapa, (1892) I.L.R. 17 Bom. 100  and  Tukaram Mahadu  v.  Ramachandra Mahadu, (1925) I.L.R. 49  Bom.  672, approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeals Nos. 334 and 335 of 1960. Appeals  from the judgment and decree dated  16/17th  August 1955  of  the Bombay High Court in First Appeal No.  341  of 1950. A.   F. Viswanatha Sastri, M. Rajagopalan and K. R. Chaudhri for  appellants  Nos.  1  and 3 (in  C.A.  No.  334/60)  and respondents Nos. 1 and 3 (in C.A. No, 335/60). R.   Gopalkrishnan, for appellants Nos. 4, 5 and 13 (in C.A. No. 334/1960) and respondents Nos. 4, 5 and 13 (in C.A. Nos. 335/60). 500 Naunit  Lal, for appellants Nos. 6, 9 to 11 and 12 (in  C.A. No. 334/60) and respondents Nos. 6, 9 to 11 and 12 (in  C.A. No. 335/60). N.C.  Chatterjee, S. Venkatakrishnan and A. G.  Ratnaparkhi, for the respondents (in C.A. No. 334/60) and the  appellants (in C. A. No. 335/60). August 19, 1963.  The Judgment of the Court was delivered by SUBBA  RAO J.-These two appeals by certificate arise out  of Special Civil Suit No. 47 of 1946 filed by Nagamma, wife  of Chanbasappa, for partition and possession of one-sixth share in  the  plaint  scheduled properties  with  mesne  profits. Chanbasappa  died possessed of a large extent  of  immovable property  on  January  8, 1944.  He left  behind  him  three wives,  Nagamma,  Guramma  and  Venkamma  and  two   widowed daughters,  Sivalingamma and Neelamma, children of his  pre- deceased wife.  It is alleged that at the time of his  death Venkamma  was  pregnant and that she gave birth  to  a  mate child  on  October  4, 1944.  It is  also  alleged  that  on January  30, 1944, Nagamma, the senior most widow, took  her sister’s  son, Malappa, in adoption.  A few days before  his death,  Chanbasappa executed gift and maintenance  deeds  in favour  of  his  wives,  widowed  daughter,  a  son  of   an illegitimate son, and a relative.  Long before his death, he also  executed  two  deeds-one a  deed  of  maintenance  and another  a gift deed of some property in favour of  Nagamma. We   shall  deal  with  these  alienations  in   detail   in appropriate places. The  plaintiff,  one  of  the  three  surviving  widows   of Chanbasappa,  filed the aforesaid suit for recovery  of  her share  after setting aside the alienations made by her  hus- band on.  January 4 and 5, 1944.  To that suit, Guramma  and

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Venkamma,  the  other two widows of Chanbasappa,  were  made defendants  1 and 2; the alleged adopted son,  defendant  3; the  alleged posthumous son, defendant 4; and the  alienees, defendants 5 to 8. Defendant 3 naturally supported the plaintiff, and the other defendants  contested the suit.  The. contesting  defendants denied   the  factum  and  validity  of  the   adoption   of defendant’s  by  the  plaintiffs  and  they  asserted   that defendant 4 was the posthumous son of Chanbasappa by Ven- 501 kamma, the second defendant.  The alienees sought to sustam. the validity of the alienations in their favour. As many as, 12 issues were, framed in them case, The learned Civil judge found that defendant 3 was taken in adaption  by the  plaintiff  on January 30, 1944, but,it was  invalid  in law;  that.  defendant  4 was born to  defendant  2  by  the deceased;  that the plaintiff had. failed to prove that  the deeds executed by-Chanbasappa. on January 4, 1944, in favour of  defendants 2, 5, 6, 7 and 8 were vitiated by fraud;  and that  the plaintiff was entitled to one-sixth share  in  the suit.  property and for partition and recovery of the  same. In the result he passed a decree for partition and  delivery of the plaintiff’s one-sixth share in the property.  He also held that defendants 1 and 2 would each be entitled to  one- sixth;  share  and  that defendant 4 would  be  entitled  to three-sixths  share  therein.  He declared  that  the  deeds executed by the deceased in favour of the plaintiff as  well as  in favour of the defendants were binding on the  parties to the suit.  He directed an enquiry as to the future  mesne profits  from  the  date of the  suit.   The  plaintiff  and defendant  3  preferred an appeal to the High  Court,  being First  Appeal No.341 of the 1950 against the decree  of  the Civil Judge insofar as it went against them.  The High Court agreed with the learned Civil Judge that defendant 4 was the posthumous  son of the deceased by the second defendant;  it accepted  the  finding of the learned Civil Judge  that  the adoption  took place; but it also held that it was valid  in law.  It declared that the deeds executed by the deceased on January  4  and 5, 1944 in favour of defendants 6, 7  and  8 were invalid as also the gift over in favour of defendant 5. It held that, as defendants 1 and 2 were getting a share  in the property, they were not entitled to separate maintenance given  to them under the deed executed by their husband  and directed  that  property  also should be  brought  into  the hotchpot and divided between the Parties.  It declared  that the  plaintiff and defendants 1 and 2 were each entitled  to 4/27  share  in  the suit property,  that  defendant  3  was entitled to 1/9 share therein, and defendant 4 was  entitled to  4/9 share therein.  It also gave further  directions  in the matter of partition, costs and mesne profits. Plaintiff and defendant 3 preferred Civil Appeal No. 502 335 of 1960, and defendants 1, 2, 4 and 5, the legal  repre- sentatives  of defendant 7 and defendant 8  preferred  Civil Appeal  No. 334 of 1960 to this Court against the decree  of the High Court insofar as it went against them. At the outset it would be convenient to clear the ground and focus our attention on the outstanding points of  difference between the parties.  The factum of adoption of defendant  3 by   the  plaintiff  is  accepted,  but  its   legality   is questioned.   The  fact  that  the  4th  defendant  is   the posthumous  son of Chanbasappa by the 2nd defendant is  also not  disputed.  In the result the following  questions  only remain  to be answered in the present appeals:  (1)  Whether the adoption of defendant 3 by the plaintiff was void as  it

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was  made  at  a  time when defendant  4  had  already  been conceived.  (2) Whether the alienations in favour of  defen- dants  2,  5, 6, 7 and 8 are binding on the members  of  the family.   And (3) What is the share of an adopted soil of  a sudra in competition with the natural born son? Mr.  Viswanatha  Sastri, appearing for defendants  1  and  4 (Appellants  1  and  3  in Civil Appeal  No.  334  of  1960) contends that the adoption of defendant 3 was void  inasmuch as  at  the  time  of the  adoption  defendant  4  had  been conceived.   He presses on us to extend the legal  position, by  analogy, of the right of a son in the womb at  the  time his  father made an alienation of a family property  to  set aside that alienation, to that of an adopted son in  similar circumstances. The Hindu law texts do not throw much light on the  subject. Dattaka  Chandrika  and Dattaka Mimamsa  are  the  treatises specially  composed  on  the  subject  of  adoption.   Nanda Pandita  cites  the following texts of Atri  and  Cankha  in Dattaka Mimasa: "By  a man destitute of son only must a substitute  for  the same be adopted". (Atri). "One  to  whom no son has been born, or whose son  has  died having fasted, etc " (Cankha). In section 13, Nanda Pandita explains that the term  "desti- tute  of a son" must be understood to include a  son’s  sort and grandson.  In Dattaka Chandrika the relevant part of the text of Cankha is stated thus: "One destitute of a son"-see s. I, 4. "One having no male issue"-see s. II. 1. 503 These texts ex facie do not equate a son in existence with a son  in  the  womb.  If the authors of  the  said  treatises intended  to equate the one with the other, they  would  not have left it in doubt, for such an extension of the doctrine would  introduce an element of uncertainty in the matter  of adoption  and  defeat, in some cases, the  religious  object underlying  adoption.  It is now well settled that the  main object  of  adoption is to secure spiritual benefit  to  the adopter, though its secondary object is to secure an heir to perpetuate the adopter’s name.  Such being the  significance of  adoption, its validity shall not be made to depend  upon the  contingencies  that  may  or may  not  happen.   It  is suggested  that an adoption cannot be made unless  there  is certainty  of  not  getting a son and that if  the  wife  is pregnant,  there is a likelihood of the adopter begetting  a son  and, therefore, the adoption made is void.   The  texts cited  do not support the said proposition.  Its  acceptance will lead to anomalies.  Suppose a husband who is  seriously ill  and who had no knowledge of the pregnancy of his  wife, makes  an  adoption; in such an event, the  existence  of  a pregnancy,  of  which he has no knowledge,  invalidates  the adoption, whether the pregnancy turns out to be fruitful  or not.   If he has knowledge of the pregnancy, he will not  be in  a position to take a boy in adoption, though  ultimately the wife may have an abortion, or deliver a stillborn  child or the child born may turn out to be a girl.  Further, as it is  well settled law that a son includes a son’s son  and  a grandson  of  the son, the pregnancy of a son’s widow  or  a grandson’s widow, on the parity of the said reasoning,  will invalidate  an adoption.  We cannot introduce such a  degree of uncertainty in the law of adoption unless Hindu law texts or authoritative decisions compel us to do so.  There are no texts of Hindu law imposing a condition of non-pregnancy  of the  wife  or  son’s widow or a  grandson’s  widow  for  the exercise of a person’s power to adopt.  The decisions of the

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High Courts on the subject discountenance the acceptance  of any such condition.  But there is a decision of Sudr  Adalut in  Narayana  Reddi v. Vardachala Reddi(1), wherein  it  was observed  that it was of the essence of the power  to  adopt that the party adopting should be hopeless of having  issue. Mr. Mayne S.A. No. 223 of 1859, M.S.D. 1859, p. 97. 504 commenting  upon  the said observation  drew  a  distinction between a husband taking a boy in adoption knowing that  his wife  was pregnant and doing so without the  said  knowledge and stated: "If  a wife, known to be pregnant at the time  of  adoption, afterwards  brought forth a son it might fairly be  held  he was  then  in  existence  to the  extent  of  precluding  an adoption...." A  division Bench of the Madras High Court in  Nagabhushanam v. Seshammagaru(1) criticized the opinion of the pandits  as well  as  the  observation  of W. Mayne,  and  came  to  the conclusion that an adoption by a Hindu with knowledge of his wife’s pregnancy was not invalid.  The Bombay High Court  in Shamavahoo v. Dwarkadas Vasanji (2) accepted the said  view. A  division Bench of the Allahabad High Court in Daulat  Ram v. Ram Lal(3) followed the Madras and Bombay decisions.   No other decision has been brought to our notice either  taking a   different  view  or  throwing  a  doubt  thereon.    All textbooks-Mayne,    Mulla,   Sarkar   Sastri-accepted    the correctness of the said view without any comment. Mr.  Viswanatha Sastri contends that under the Hindu  law  a son  conceived  or  in his mother’s womb is  equal  in  many respects  to  a son actually in existence in the  matter  of inheritance,  partition, survivorship and the right  to  im- peach an alienation made by his father and that,  therefore, logically  the same equation must hold good in the  case  of adoption.  When a son in his mother’s womb is equated with a son  in  existence  vis-a-vis  his right  to  set  aside  an alienation or to reopen a partition, the argument  proceeds, the  father cannot validly adopt, as from the date  of  con- ception  the  son must be deemed to be  in  existence.   But there  is  an essential distinction between  an  alienation, partition  and inheritance on the one hand and  adoption  on the  other: his right to set aside an alienation  hinges  on his  secular  right  to secure his  share  in  the  property belonging  to the family, as he has a right by birth in  the joint  family  property  and transactions  effected  by  the father  in  excess of his power when he was  in  embryo  are voidable at (1) (1978-81) I.L.R. 3 Mad. 180. (2)  (1888) I.L.R. 12 Bom. 202. (3)  (1907) I.L.R. 29 AU. 310. 505 his  instance:  but,  in the case of  adoption,  it  secures mainly  spiritual  benefit to the father and  the  power  to adopt  is  conferred  on him to achieve  that  object.   The doctrine  evolved  wholly  for a secular  purpose  would  be inappropriate  to  a case of adoption.  We  should  be  very reluctant to extend it to adoption, as it would lead to many anomalies  and  in  some events defeat  the  object  of  the conferment  , of the power itself.  The scope of  the  power must  be reasonably construed so as to enable the  donee  of the  power to discharge his religious duty.  We,  therefore, hold  that  the  existence  of a  son  in  embryo  does  not invalidate an adoption. The  next  contention of Mr. Viswanatha Sastri is  that  the High  Court,  having  set  aside  the  alienations  made  by Chanbasappa, should have brought into hotchpot the  property

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covered   by  the  said  alienations  for  the  purpose   of partition.  The particulars of the alienations may be notic- ed at this stage. ----------------------------------------------------------             Exhibit               Nature of    Properties S. No.    No.  Date In favour of   document   comprised of ---------------------------------------------------------- 1.      3624-1-44    D-1 Guramma Deed of   Pit. Sch. A.                                      mainten-                                        ance 2.     3725-1-44    D-2  Venkamma  Deed of Pit. Sch. A.                                         mainten-                                          ance &                                          giftover                                           to D-5 3.      3694-1-44  D-6 Imam Sahib  Deed of Pit. Sch. A.                                         Gift. 4.      3704-1-44  D-7 Channappa  Deed of   Plt.Sch.A-3. 5.      3714-1-44  D-8  Neelamma  Deed of   Plt.Sch.A-3.                                       maint-                                       enance         346    30-1-37  Plff. Nagamma   Deed of                                        maint-                                        enance         347    14-2-39  Plff. Nagamma  Deed of                                         Gift. ----------------------------------------------------------- 33-2 S. C. India/64 506 This  argument  is based upon a misapprehension.-  The  High Court, having set aside the alienations, including those  in favour  of defendants 1 and 2 directed the said property  to be  divided  in accordance with the shares declared  by  it. This  position is also conceded on behalf of  the  plaintiff and defendant 3. We need not, therefore, pursue this matter. Mr. K. R. Chaudhri, following Mr. Viswanatha Sastri, further contends  that  the  High  Court  went  wrong  in  making  a distinction between the documents executed in favour of  the plaintiff in that while it confirmed the documents Exs.  346 and  347 executed in favour of the plaintiff, it  set  aside the  deeds executed in favour of defendants 1 and  2.  There are no merits in this contention.  The documents executed in favour of the plaintiff are Exs. 346 dated January 30,  1937 and  347 dated February 14, 1939.  These two documents  were executed  by  Chanbasappa  at a time when he  was  the  sole surviving  coparcener, whereas he executed the documents  in favour  of defendants 1 and 2 -after the 4th  defendant  was conceived.   The former were -executed when he had  absolute power of disposal, whereas the latter were executed when  he had  ceased  to have the said power.  On the basis  of  this distinction the High Court rightly set aside the alienations made in favour of defendants 1 and 2. Mr.  Naunit  Lal,  appearing  for  some  of  the  legal  re- presentatives  of defendant 7 who are appellants 6, 9 to  11 and 12 in Civil Appeal No. 334 of 1960 and respondents 6,  9 to 11 and 12 in Civil Appeal No. 335 of 1960, contends  that the  gift  deeds  executed  by,  Chanbasappa  in  favour  of defendants  7  and  8 were binding on the  members  or’  the family.  The High Court held that Chanbasappa could not have validly made these gifts of immovable property of the  joint family after the 4th defendant was conceived and, therefore, they  were void.  Mr. Naunit Lal broadly contends  that  the alienations  effected by Chanbasappa were voidable  only  at the  instance of the 4th defendant, who was in the  womb  on the  date  of the alienations and that as he has  chosen  to

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adopt them, the third defendant, who was adopted  subsequent to  the  alienations,  could not  question  their  validity. Before  we advert to the legal aspects of the  argument,  it may be stated at once that no question 507 of  consent of the 4th defendant can possibly arise in  this case, as he was not born when the alienations were made  and he  was  a minor at the time the suit was filed.   We  must, therefore,  proceed on the basis that the  alienations  were made  by one of the members of the joint family without  the consent  of the other members of the family.  If so, at  the time  the  alienations  were made Chanbasappa  had  not  the absolute  power to alienate the family property, but only  a limited one to do so for the purpose of necessity or benefit of the estate.  The relevant principles are well settled.  A coparcener,  whether he is natural born or adopted into  the family,  acquires an interest by birth or adoption,  as  the case  may  be, in the ancestral property of the  family.   A managing  -member  of the family has power to  alienate  for value  joint family property either for family necessity  or for  the benefit of the estate.  An alienation can  also  be made  by  a  managing member with the  consent  of  all  the coparceners  of the family.  The sole surviving member of  a coparcenary  has  an absolute power to alienate  the  family property,  as  at the time of alienation there is  no  other member  who  has joint interest in the family.   If  another member was in existence or in the womb of his mother at  the time of the alienation, the power of the manager was circum- scribed as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the  womb  but was subsequently born, as the  case  may  be, unless it was made for purposes binding on the member of the family  or  the  existing  member consented  to  it  or  the subsequently  born  member  ratified it  after  he  attained majority.  If another member was conceived in the family  or inducted   therein  by  adoption  before  such  consent   or ratification, his right to avoid the alienation will not  be affected: See Avdesh Kumar v. Zakaul Hassain(1)  Chandramani v.  Jambeswara(2) ; and Bhagwat Prasad Bahidar v.  Debichand Bogra(3).  In the instant case the impugned alienations were made at a time when the 4th defendant was in the womb  i.e., at  a  time when Chanabasappa had only a  limited  right  of disposal over the joint (1)  I.L.R. [1944] All-612. (2)  A.I.R. 1931 Mad. 550. (3)  (1941) I.L.R. 20 Pat. 727. 508 family  property.  The 4th defendant being in the  womb,  he could  not  obviously  give  his  consent,  nor  ratify  the alienations  before the adoption of the 3rd  defendant  took place  and he was inducted into the family.  If the  aliena- tions  were made by the father for a purpose not binding  on the  estate, they would be voidable at the instance  of  the 3rd or 4th defendant. The  next question is whether the two gifts were binding  on the  family.  We shall now take the two gift deeds Exs.  370 and 371 executed by Chanbasappa-the former in favour of  the 7th defendant and the latter in favour of the 8th defendant. The  High Court, agreeing with the learned Civil Judge,  set aside the gifts on the ground that the donor had no power to make a gift of the family property.  Learned counsel for the legal  representatives  of  the  said  defendants  seeks  to sustain  the  validity  of the said  two  gifts.   We  shall consider the validity of the two gift deeds separately. Ex.  370 dated January 4, 1944, is a gift deed  executed  by

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Chanbasappa  in favour of Channappa, the 7th  defendant,  in respect  of immovable property valued at Rs.  1,500/-.   The donee  was described as the donor’s relative.  The gift  was made in token of love for the services rendered by the donee to  the  donor during the latter’s lifetime.  The  gift  was made,  as it was narrated in the document, out of  love  and affection for the donee.  It is contended that the said gift was for pious purposes and, therefore, valid in law.  Can it be said that a gift of this nature to a relative out of love and  affection  is a gift for "pious  purposes"  within  the meaning of that expression in Hindu law?  In Mitakshara, Ch. I, s. 1, v. 28, it is stated:               "Even  a  single  individual  may  conclude  a               donation,  mortgage,  or  sale  of   immovable               property, during a season of distress, for the               sake  of the family and especially  for  pious               purposes."               In  support  of  his  contention  that   pious               purposes include a charitable purpose, learned               counsel   relies  upon  certain  passages   in               Mukherjea’s   "Hindu  Law  of  Religious   and               Charitable  Trust",  2nd  Edn.   The   learned               author says at p. 12:               "In  the  Hindu  system there is  no  line  of               demarcation between religion and charity.   On               the other hand                                    509               charity is regarded as part of religion.......               All  the  Hindu sages concur in  holding  that               charitable   gifts   are   pious   acts    par               excellence, which bring appropriate rewards to               the donor...............               The learned author proceeds to state, at p. 58               "Religious   and  charitable   purposes   have               nowhere been defined by Hindu lawyers.  It was               said  by  Sir Subrahmanya Ayyar J.  in  Partha               Sarathi  Pillai  v.  Tiruvengada(1)  that  the               expression  "dharma"  when  applied  to  gifts               means  and  includes according to  Hindu  text               writers, what are. known: as Istha and  Purtta               works.   As I have said already in  the  first               lecture, no exhaustive list of such works  has               been drawn up by the Hindu lawgivers, and they               include  all  acts of  piety  and  benevolence               whether sanctioned by Vedas or by the  popular               religion, the nature of the acts differing  at               different periods of Hindu religious history."               The learned author defines the words Istha and               Purtta briefly thus, at p. 10:               "By Istha is meant Vedic sacrifices, and rites               and gifts in connection with the same;  Purtta               on  the other hand means and  signifies  other               pious   and   charitable   acts   which    are               unconnected   with   any   Srouta   or   Vedic               sacrifice." It  may, therefore, be conceded that the  expression  "pious purposes  " is wide enough, under certain circumstances,  to take  in charitable purposes though the scope of the  latter purposes has nowhere been precisely drawn.  But what we  are concerned  with  in this case is the power of a  manager  to make a gift to an outsider of a joint family property.   The scope of the limitations on that power has been fairly  well settled by the decisions interpreting the relevant texts  of Hindu  law.  The decisions of Hindu law sanctioned gifts  to strangers  by a manager of a joint Hindu family of  a  small

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extent  of  property for pious purposes.  But  no  authority went so far, and none has been placed before us, to  sustain such  a  gift  to  a stranger however  much  the  donor  was beholden  to  him  on the ground that it  was  made  out  of charity.   It  must be remembered that the  manager  has  no absolute power of disposal over joint Hindu family (1)  (1907) I.L.R. 30 Mad. 340. 510 property.   The Hindu law permits him to do so  only  within strict  limits.  We cannot extend the scope of the power  on the  basis  of the wide interpretation given  to  the  words "pious  purposes" in Hindu law in a different  context.   In the  circumstances, we hold that a gift to a stranger  of  a joint family property by the manager of the family is void. The  second document is Ex. 371, dated July 4, 1944.   Under that  document,  Chanbasappa created a  life-interest  in  a property of the value of about Rs. 5,000/- in favour of  his widowed daughter, the 8th defendant.  In the document it  is recited thus:               "You  are my own daughter and your husband  is               dead.  After his death you have been living in               my  house  only.   For  your  well  being  and               maintenance  during  your  life  time  I  have               already  given some property -to you.  As  the               income  from the said property is  not  suffi-               cient for your maintenance, you have asked  me               to   give   some  more   property   for   your               maintenance.   I have therefore gladly  agreed               (to the same) and passed a deed of maintenance               in  your favour regarding the below  mentioned               property  and delivered it to your  possession               to-day only." Under  the said deed the daughter should enjoy the  property during  her lifetime and thereafter it should go to the  5th defendant.  The gift-over would inevitably be invalid.   But the  question  is whether the provision for  the  daughter’s maintenance during her lifetime would also be invalid.   The correctness  of the recitals are not questioned  before  us. It  is in evidence that the family possesses a large  extent of property, worth lakhs.  The short question is whether the father  could  have validly conferred a  lifeinterest  in  a small  bit of property on his widowed daughter  in  indigent circumstances  for  her maintenance.  It is  said  that  the Hindu  law  does  not  permit  such  a  gift.   In  Jinnappa Mahadevappa  v. Chimmava(1), the Bombay High Court  accepted that  legal  position.   Rangnekar J. held  that  under  the Mitakshara  school  of Hindu law, a father has no  right  to make  a  gift  even  of a  small  portion  of  joint  family immovable property in favour of his daughter, although it is made on the ground that she looked after him in his (1)  (1935) I.L.R. 59 Bom. 459, 465. 511 old  age.   The learned judge distinguished  all  the  cases cited  before  him on the ground that they were  based  upon long  standing  customs  and ended  his  judgment  with  the following observations :               "Undoubtedly,  the gift is a small portion  of               the whole of the property; but, if one were to               ignore the elementary principles of Hindu  law               out  of  one’s  sympathy with  gifts  of  this               nature, it would be difficult to say where the               line could be drawn, and it might give rise to               difficulties which no attempt could overcome." We  agree  with the learned Judge that sympathy  is  out  of place  in  laying  down the law.  If  the  Hindu  law  texts

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clearly and expressly prohibit the making of such a gift  of the family property by the father to the widowed daughter in indigent  circumstances,,  it is no doubt the  duty  of  the Court  to accept the law, leaving it to the  Legislature  to change  the law.  We shall therefore, consider the  relevant Hindu law texts bearing on the subject. At  the outset it would be convenient to clear  the  ground. Verses  27,  28 and 29 in Ch.  I, Mitakshara,  describe  the limitations placed on a father in making gifts of  ancestral estate.   They  do not expressly deal with the  right  of  a father to make provision for his daughter by giving her some family property at the time of her marriage or subsequently. That  right  is defined separately by Hindu  law  texts  and evolved  by  a long catena of decisions, based on  the  said texts.  The relevant texts have been collected and extracted in  Vettorammal v. Poochammal(1).  Section 7 of the Ch.   I, Mitakshara,  deals  with  provision  for  widows,  unmarried daughters  etc.  Placitum 10 and 11 provide for portions  to sisters when a partition is made between the brothers  after the  death  of  the father.  The allotment  of  a  share  to daughters  in’  the  family is  regarded  as  obligatory  by Vignaneswara.  In Ch.  I, s. 7 pp. 10 and 11, he says:               "The  allotment of such a share appears to  be               indispensably requisite, since the refusal  of               it is pronounced to be a sin."               He  relies on the text of Manu to  the  effect               that  they  who  refuse to give  it  shall  be               degraded: Manu Ch.  I,s. 118.  In Placitum 11,               Ch. 1, withholding of such a portion is               (1)   (1912) 22 M.L.J. 321.               512               pronounced to be a sin.  In Madhaviya, pp.  41               and   42,  a  text  of  Katyayana   is   cited               authorizing the gift of immovable property  by               a  father  to his daughters beside a  gift  of               movables  upto the amount of 2,000  phanams  a               year.   In  Vyavahara  Mayukha,  p.  93,   the               following text of Brihaspati is also cited  by               the  author  of  the  Madhaviya  to  the  same               effect:               "Let  him give adequate wealth and a share  of               land also if he desires."               Devala says:               "To maidens should be given a nuptial  portion               of  the father’s estate"-Colebrooke’s  Digest,               Vol. 1, p. 185.  Manu says:               "To the unmarried daughters by the same mother               let their brothers give portions out of  their               allotments  respectively,  according  to   the               class of their several mothers.  Let each give               one-fourth part of his own distinct share  and               those   who  refuse  to  give  it   shall   be               degraded." These and similar other texts indicate that Hindu law  texts not only sanction the giving of property to daughters at the time  of partition or at the time of their marriage, as  the case  may be, but also condemn the dereliction of  the  said duty in unequivocal terms.  It is true that these Hindu  law texts have become obsolete.  The daughter has lost her right to  a  share  in  the family property at  the  time  of  its partition.  But though the right has been lost, it has  been crystallized  into  a moral obligation on the  part  of  the father to provide for the daughter either by way of marriage provision or subsequently.  Courts even recognized making of such  a provision not only by the father but also after  his

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death  by  the accredited representative of the  family  and even  by  the  widow.  The decision in  Kudutamma  v.  Nara- simhacharyalu(1) is rather instructive.  There, it was  held that  a  Hindu father was entitled to make gifts by  way  of marriage  portions to his daughters out of the  family  pro- perty  to a reasonable extent.  The first defendant was  the half-brother  of  the plaintiffs and the father of  the  2nd defendant.   After  the death of his father  and  after  the birth of the 2nd defendant he for himself and as guardian of the 2nd defendant executed a deed of gift, to the plaintiffs jointly, of certain portions of the joint (1) (1907) 17 M.L.J. 528. 513 family  property.   The question was whether that  gift  was good.  It will be seen from the facts that the gift was made by the brother to his half-sisters not at the time of  their marriage  but subsequently.  Even so, the gift  was  upheld. Wallis  J.  in  his  judgment  pointed  out  that  unmarried daughters  were formerly entitled to share on partition  and that  after-marriage they were entitled to an endowment  and that though that right fell into desuetude, a gift made to a daughter-was  sustained  by Courts as a  provision  for  the married  couple.  The learned judge summarized the  position thus, at p. 532:               "......  although  the joint  family  and  its               representative,  the father or other  managing               member,  may  no longer be  legally  bound  to               provide  an  endowment for the  bride  on  the               occasion  of  her  marriage,  they  are  still               morally  bound to do so, at any rate when  the               circumstances  of the case make it  reasonably               necessary." If  such a provision was not made at the time  of  marriage, the learned Judge indicated that such moral obligation could be  discharged  subsequently  by  a  representative  of  the family.  To quote his observations-"Mere neglect on the part of  the  joint family to fulfill a moral obligation  at  the time of the marriage, cannot, in my opinion, be regarded  as putting an end to it, and I think it continued until it  was discharged  by  the deed of gift now sued  on  and  executed after  the father’s death by his son, the 1st defendant  who succeeded  him  as  managing member  of  the  joint  family. Another  division Bench of the Madras High Court  considered the  question in Sundararamaya v. Seethamma(1) and  declared the  validity  of a gift of 8 acres of ancestral land  by  a Hindu father to his daughter after marriage when the  family was possessed of 200 acres of land.  The marriage took place about  forty years before the gift.  There was  no  evidence that the father then had any intention to give any  property to  the daughter.  The legal position was thus expounded  by the learned judges, Munro and Sankaran Nair JJ.               "The father or the widow is not bound to  give               any property.  There may be no legal but  only               a  moral obligation.  It is also true that  in               the case before us ---the father did not  make               any gift and discharge that               (1)   (1911) 21 M.L.J. 695, 699.               514               moral obligation at the time of the  marriage.               But  it  is  difficult to see  why  the  moral               obligation does not sustain a gift because  it               was  not made to the daughter at the  time  of               marriage, but only some time later. The  moral               obligation of the plaintiff’s father continued               in force till it was discharged by the gift in

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             1899." Another division Bench of the Madras High Court in Ramaswamy Ayyer v. Vengidusami Ayyer(1) held that a gift of land  made by  a widow, on the occasion of her daughter’s marriage,  to the  bridegroom  was valid.  Sundara Aiyer and  Spencer  JJ. held  in Vettorammal v. Poochammal(2) that a gift made by  a father  to his own daughter or by a managing member  to  the daughter  of  any of his coparceners, provided it  be  of  a reasonable  amount,  is valid as against  the  donor’s  son. After  elaborately  considering the relevant  texts  on  the subject and the case law bearing thereon, the learned Judges came  to  the  conclusion that the  plaintiff’s  father  was competent  to make a gift of ancestral property to  the  1st defendant, his brother’s daughter.  The learned judges  also held  that  the validity of the gift would depend  upon  its reasonableness.  The legal basis for sustaining such a  gift was formulated by the learned Judges at p. 329 thus: "No doubt a daughter can no longer claim as of right a share of  the  property  belonging to her father,  but  the  moral obligation  to  provide for her wherever possible  is  fully recognized  by the Hindu community and will support  in  law any disposition for the purpose made by the father." In Bachoo v. Mankorebai(3), the Judicial Committee held that a  gift  by a father, possessed  of  considerable  ancestral property,  of  a  sum of Rs. 20,000/- to  his  daughter  was valid.  No doubt this was not a gift of immovable  property; but there is no difference in the application of the princi- ples  to a gift of immovable property as illustrated by  the decision  of the Judicial Committee in Ramalinga  Annavi  v. Narayana  Annavi(4).  There, both the Subordinate judge  and the  High Court held that the assignments by a member  of  a joint Hindu family to his daughters of a (1)  (1898) I.L.R. 22 Mad. 113. (2) (1912) 22M.  L.J. 321. (3)  (1907) I.L.R. 31 Bom. 373. (4) (1922) 49 I.A. 168, 173. 515 sum  of money and of a usufructuary mortgage were valid,  as they were reasonable in the circumstances in which they were made.   The Privy Council confirmed the finding of the  High Court.   In  considering the relevant point, Mr.  Ameer  Ali observed at p. 173 thus:               "The  father has undoubtedly the  power  under               the  Hindu  law of making,  within  reasonable               limits,   gifts  of  movable  property  to   a               daughter.   In one case the Board  upheld  the               gift of a small share of immovable property on               the  ground  that it was not shown to  be  un-               reasonable."’               Venkataramana Rao J. in Sithamahalakshmamma v.               Kotayya(1)  had to deal with the  question  of               validity of a gift made by a Hindu father of a               reasonable  portion  of  ancestral   immovable               property to his daughter without reference  to               his son.  Therein, the learned judge  observed               at p. 262:               "There  can  be no doubt that  the  father  is               under  a moral obligation to make a gift of  a               reasonable portion of the family property as a               marriage  portion  to  his  daughters  on  the               occasion of their marriages.  It has also been               held  that it is a continuing obligation  till               it  is discharged by fulfillment thereof.   It               is on this principle a gift of a small portion               of  immovable  property by a father  has  been               held to be binding on the members of the joint               family."

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             Adverting  to  the question of the  extent  of               property  he  can  gift,  the  learned   Judge               proceeded to state:               "The  question  whether a particular  gift  is               reasonable  or  not  will have  to  be  judged               according  to the state of the family  at  the               time  of  the gift, the extent of  the  family               immovable  property, the indebtedness -of  the               family,  and the paramount charges  which  the               family was under an obligation to provide for,               and after having regard to these circumstances               if the gift can be held to be reasonable, such               a  gift  will be binding on the  joint  family               members  irrespective  of the consent  of  the               members of the family."  This  decision  was followed by Chandra Reddy  J.  of  the, Madras High Court in Annamalai v. Sundarathammal(2).. (1)  (1936) 71 M.L.J. 259. (2)  (1952) 11 M.L.J. 782, 784. 516 A division Bench of the Calcutta High Court in Churaman Sahn v. Gopi Sahu(1) held that it was competent to a Hindu  widow governed  by  the Mitakshara law to make a valid gift  of  a reasonable  portion of immovable property of her husband  to her  daughter  on  the  occasion  of  the  daughter’s  gowna ceremony.   The  learned Judges have followed  some  of  the aforesaid decisions of the Madras High Court. It  is,  therefore, manifest that except the decision  of  a single  Judge  of the Bombay High Court  in  Jinnappa  Maha- devappa  v.  Chimmava(2) all the decisions  on  the  subject recognize  the validity of a gift of a reasonable extent  of joint  family property to a daughter under  varying  circum- stances.   The observations of Rangnekar J. that  Hindu  law does  not sanction the validity of such a gift and that  the said  decisions were based only on long standing  custom  do not  appear to be correct.  The Hindu law texts as  well  as decided cases support such a gift. The  legal  position may be summarized thus: The  Hindu  law texts conferred a right upon a daughter or a sister, as  the case  may be, to have a share in the family property at  the time  of partition.  That right was lost by efflux of  time. But  it  became crystallized into a moral  obligation.   The father  or his representative can make a valid gift, by  way of reasonable provision for the maintenance of the daughter, regard  being  had  to  the  financial  and  other  relevant circumstances  of the family.  By custom or by  convenience, such  gifts are made at the time of marriage, but the  right of  the father or his representative to make such a gift  is not  confined  to  the marriage occasion.   It  is  a  moral obligation   and  it  continues  to  subsist  till   it   is discharged.  Marriage is only a customary occasion for  such a  gift.  But the obligation can be discharged at  any  time either during the lifetime of the father or thereafter.   It is  not  possible  to  lay  down  a  hard  and  fast   rule, prescribing  the quantitative limits of such a gift as  that would  depend on the facts of each case and it can  only  be decided  by Courts, regard being had to the overall  picture of the extent of the family estate, the number of daughters’ to  be  provided for and other paramount charges  and  other similar circumstances.  If the 37 Cal. 1. (2) (1935)  I.L.R. 59 Bom. 459. 517 father  is within his rights to make a gift of a  reasonable extent  of  the  family property for the  maintenance  of  a daughter, it cannot be said that the said gift must be  made

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only by one document or only at a single point of time.  The validity  or  the reasonableness of a gift does  not  depend upon  the  plurality of documents but on the  power  of  the father to make a gift and the reasonableness of the gift  so made.   If once the power is granted and the  reasonableness of  the gift is not disputed, the fact that two  gift  deeds were  executed instead of one, cannot make the gift  anythe- less a valid one. Applying the aforesaid principles, we have no doubt that  in the present case, the gift made by the father was within his right  and certainly reasonable.  The family  had  extensive properties.   The father gave the daughter only  life-estate in  a small extent of land in addition to what  had  already been given for her maintenance.  It has not been stated that the  gift  made  by  the  father  was  unreasonable  in  the circumstances  of  the case.  We, therefore, hold  that  the said document is valid to the extent of the right  conferred on the 8th defendant. Mr. Chatterjee, learned counsel for the respondents in Civil Appeal  No. 334 of 1960 and appellants in Civil  Appeal  No. 335 of 1960, contended on behalf of the adopted son that  in a  competition between an adopted son and a subsequent  born natural  son among Sudras, each takes an equal share in  the family property.  A controversy was raised before us on  the question  whether  the  Lingayats, to  which  community  the parties ’belong are Sudras or dwijas.  The Bombay High Court in  Tirkangauda  Mallanagauda v.  Shivappa  Patil(1),  after considering  the relevant authorities on the question,  held as follows, at p. 742: "Whether  the Lingayats are Hindus or not, we are  concerned to see what is the law by which they are governed, and  ever since  the ruling in Gopal Narhar Safray v. Hanumant  Ganesh Safray ( 2), they have been subject to Hindu law as  applied to Shudras." In  this case it is not necessary to express our opinion  on the  question  whether Lingayats are Sudras or not,  for  we proceed on the assumption that they are, or at any rate that (1)  I.L.R. [1943] Bom. 706. (2)  (1879) I.L.R. 3 Bom. 273. 518 the Hindu law applicable to Sudras applies to them. In Arumilli Perrazu v. Arumilli Subbrayadu(1) it was held by the  judicial  Committee  that among Sudras  in  the  Madras Presidency  an  adopted  son  on  partition  of  the  family property would share equally with a son or sons born to  the adoptive father after the adoption.  The Judicial  Committee based its conclusion mainly on the following ground:               "........  the rule of the  Dattaka  Chandrika               that  on  a  partition  of  the  joint  family               property  of a Sudra family an adopted son  is               entitled to share equally with the  legitimate               son  born to the adoptive father  subsequently               to  the adoption had been accepted  and  acted               upon  for at least more than a century in  the               Presidency of Madras, as the law applicable in               such  cases  to Sudras until the law  on  that               subject was disturbed in 1915 by the  decision               of  the  High Court at Madras  in  Gopalam  v.               Venkataraghavulu(2)."               It  will be seen that the decision  rested  on               the  fact  that  Dattaka  Chandrika  was   the               recognized authority in the Madras  Presidency               and  that the rule that an adopted son and  an               afterborn natural son take in equal shares the               family  property had been followed for over  a

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             century.   On  this  decision  Sarkar   Sastri               commented  in his valuable book on Hindu  Law,               8th Edn., at p. 211, thus:               "Another  novel rule enunciated for the  first               time  by  the  Dattaka  Chandrika  is  that  a               Sudra’s adopted son should share equally  with               his begotten son, on the ground that a Sudra’s               illegitimate  son may by the  father’s  choice               get  an equal share with his legitimate  sons.               It  is difficult to understand the cogency  of               this  argument.  This rule, however  has  been               followed  by  the  Calcutta  and  Madras  High               Courts, for this book is said to be of special               authority  in  Bengal  and  Madras.   But  the               Madras High Court, after consideration of  the               authorities  on  the  subject,  came  to   the               conclusion,  following an earlier decision  of               the same Court, that an adopted son of a Sudra               was  entitled to only a fifth share of what  a               natural born son gets.  But in the case               (1) (1921) 48 I.A. 280.               (2)   (1915) I.L.R. 40 Mad. 632.                                    519               of Arumilli Perrazu(1) the above decision  has               been overruled and it has been finally settled               by  the  Privy  Council that  an  adopted  son               shares equally on partition with an after-born               son of a Sudra." In  Bengal where Dattaka Chandrika is given same  importance as in the Madras Presidency, the same rule has been followed in  the  matter of partition between an adopted son  and  an after-born natural son among Sudras: see Asita v. Nirode(2). It  is  not  necessary to pursue that  matter.   It  may  be accepted that in Bengal and Madras the said rule governs the shares  between them.  But in Bombay, Dattaka  Chandrika  is not given the place of honour as in Madras and Calcutta.  As early as 18_2, a division Bench of the Bombay High Court  in Giriapa  v.  Hingappa(3)  had to consider  the  question  of shares  inter  se between an adopted son and  an  after-born aurasa  son.   It held that in Western India,  both  in  the districts  governed  by the Mitakshara and  those  specially under  the authority of Vyavahara Mayukha, the right of  the adopted  son, where there was a legitimate son  born  after, the adoption, extended only to a fifth share of the father’s estate.   The question therein was whether the  adopted  son takes one-fourth of the estate or one-fourth of the  natural born son’s share in the property.  After considering all the relevant  texts  the division bench came to  the  conclusion that  he  takes one-fourth of- a natural born  son’s  share. After  the decision of the Judicial Committee in Perrazu  v. Subbarayadu(1)  another  division Bench of the  Bombay  High Court,  in Tukaram Mahadu v. Ramachandra Mahadu(4)  reviewed the  law and came to the same conclusion.  Adverting to  the Privy  Council  decision, the learned Judges of  the  Bombay High Court observed:               "No doubt this case Perrazu v.  Subbarayudu(1)               is an authority for holding that in Madras and               in  Bengal among Sudras the rule is  that  for               which the appellant’s counsel contends."               Then  the learned judges posed  the  following               question:               "Assuming  that  the parties here  are  Sudras               ought we               (1)  (1921) 48 I.A. 280.        (2) (1916)  20               C.W.N. 901.

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             (3)   (1892) I.L.R. 17 Bom. 100.               (4)   (1925)  I.L.R.  49 Bom. 672,  679,  680,               684.               520               to  apply  to this Presidency the  rule  which               their Lordships of the Privy Council have laid               down  as prevailing in the Madras  and  Bengal               Presidencies?"               After  citing the relevant extracts  from  the               decision   of  the  Judicial  Committee,   the               learned judges proceeded to               answer thus:               "In this Presidency where the rule of  Dattaka               Chandrika upon the question at issue has never               been  followed,  for no case, and no  kind  of               judicial    or    other    pronouncement    is               forthcoming,  (and as I have said the  leading               case  is against it), ought we to  accept  the               rule   upon  the  authority  of  the   Dattaka               Chandrika alone?  In my opinion we should  err               if  we did so.  The authority of  the  Dattaka               Chandrika  has  never been placed so  high  in               Western  India as in Bengal  and  Madras......               The  case is one where the principle of  stare               decision should be maintained."               Coyajee J., said much to the same effect:                "We  have no reason to believe that the  rule               propounded in paras. 29 and 32 of section V of               the Dattaka Chandrika has been so accepted and               acted  upon in this Presidency; and  there  is               therefore  no justification for  holding  that               the  decision  in Giriappa’s  case(1)  is  not               applicable to the parties to this suit even if               they were Sudras." Steele  in  his  valuable book on  Hindu  Law  and  Customs, compiled as far back as 1868, did not find any justification for  excepting  the Sudras from the general  rule.   It  is, therefore,  manifest  that  in Bombay  Presidency  the  rule accepted  in Dattaka Chandrika has never been  followed  and the  share of an adopted son in-competition with  a  natural born  son among Sudras has always been 1/5th in  the  family property,  i.e.,  1/4th  of the natural  born  son’s  share. Nothing  has  been placed before us to compel us  to  depart from  the  long  established rule prevalent  in  the  Bombay State.   We,  therefore, cannot accept the argument  of  Mr. Chatterjee in this regard. In  the  result, Civil Appeal No. 335 of 1960 filed  by  the plaintiff and defendant 3 is dismissed with costs, and Civil Appeal  No. 334 of 1960 filed by defendants 1, 2, 4,  (1892) I.L.R. 17 Bom. 100. 521 5,  the  legal representatives of defendant 7  and  def.  8, except  to  the  extent  of the  8th  defendant’s  right  to maintenance under Ex. 371, is dismissed with costs.  So  far as  the 8th defendant is concerned, the appeal filed by  her is  allowed with costs proportionate to her interest in  the property throughout. Appeal No. 335 dismissed. Appeal No. 334 partly allowed.