Patkar, J.
1. These appeals raise a novel and important and at the same, time a difficult question of Hindu law which has not been covered by authority.
2. Shivlingappa, the father-in-law of the plaintiff, Basappa, defendant No. 1, and Shiddappa, father of defendant No. 2, were brothers and had separated long ago. The property in suit consists of the property which came to the share of Shivlingappa and which was acquired by him with the income of the property that came to him by partition. Shivlingappa died in 1921 and was succeeded by his son Shivshankreppa who died in 1922, The property was inherited by the plaintiff, the widow of Shivshankreppa and the daughter-in-law of Shivlingappa. In 1923 the plaintiff adopted Shidlingappa, the son of defendant No. 1, in dwyamushyayana form. Shidlingappa, after his adoption, died unmarried soon afterwards. The plaintiff, therefore, has brought the suit as heir of her deceased adopted son. Defendant No. 5 is the natural mother of Shidlingappa and the wife of defendant No. 1. The question involved in this appeal is whether the plaintiff, the adoptive mother, or defendant No. 5, the natural mother, is the preferential heir, or whether they are co-heiresses and jointly inherit the property of the deceased Shidlingappa.
3. It is contended by Mr. Thakor on behalf of the natural mother that she is the preferential heir on the theory of propinquity based on the sapinda relationship on account of possession of particles of the same body, and reliance is placed on the decisions in the cases of Lulloobhoy Bappoobhoy v. Cassibai Buddha Singh v. Laltu Singh and Behari Lal v. Shib Lal I.L.R. (1904) A11. 472 It is further urged that according to the theory of offering oblations, in the case of a dwyamushyayana adoption the descendant in the fourth degree need not offer oblations and priority is given to sires of natural mother, and this circumstance provides an adequate ground of preference for excluding the adoptive mother.
4. On the other hand, it is contended by Mr. Jayakar on behalf of the adoptive mother that the dwyamushyayana form of adoption makes the adopted son the son of two fathers and also the son of two mothers, and that after the adoption the filial relation is created, by virtue of the adoption, with the adoptive father and also with the adoptive mother, but the adoptive mother is entitled to preference as the property belongs to the adoptive family.
5. The term dwyamushyayana is applicable to an adopted son retaining his filial relation to his natural father with his acquired relation to his adoptive parents when there is a mutual agreement between the natural father and the adoptive father that the adopted son shall be the son of both. The son so adopted is technically called dwyamushyayana. See Dattaka Chandrika, Section 2, pl. 24 and 40, and Vyavahara Mayukha, Chap. IV, Section 5, pl. 21. The dwyamushyayana son, i.e., Kshetraja son mentioned by Vijnyaneshvara in Mitakshara, Chap.I, Section 10, paras. 1 to 3, is obsolete.
6. The dwyamushyayana adopted son is of two kinds, (1) absolute, i.e. Gnitya dwyamushyayana, and (2) incomplete, i.e., anitya dwyamushyayana. The absolute dwyamushyayana son is one who is given in adoption with this stipulation 'This, is the son of us two (the natural father and the adopter),' the incomplete dwyamushyayana son is one who is initiated by the natural father in the ceremonies ending with tonsure and by the adoptive father in the ceremonies commencing with the investiture of the sacred thread. As he is initiated in the gotras (family names) of both the natural father and the adoptive father, he is considered to be the son of two fathers but incompletely. But if a child after being born is adopted so that his initiation under both gotras be wanting, he would partake only of the gotra of the adoptive father. See Dattaka Mimansa, Chap. 6, pl. 41, (Stokes' Hindu Law, page 610). The. anitya, i.e., the incomplete form of dwyamushyayana is now obsolete, but the form of nitya dwydmushyayana adoption has been recognised in Nilmadhub Doss v. Bishumber Doss (1869) 13 M.I.A. 85 Basava v. Lingangauda I.L.R. (1894) Bom. 428 and Srimati Uma Deyi v. Gokoolanund Das Mahapatra
7. In Nilmadhub Doss v. Bishumber Doss it was held that the effect by the Hindu law of an adoption in dwyamushyayana (son of two fathers) form is not to deprive the adopted son of his lineage to his natural father, or to bar him of his right of inheritance to his natural father's estate. The remark in Shrimati Uma Deyi v. Gokoolanund Das Mahapatra relating to a consequence different from ordinary adoption, that is, the children of the adopted son would revert to the natural family appears to refer to anitya, i.e., the incomplete, form of dwyamusyayana, which is now obsolete.
8. In every case of nitya dwyamushyayana form of adoption, whether it be by the brother of the natural father of the adopted son or by a stranger, there must be an agreement to the effect that he shall be the son of both, and such an agreement must be proved like any other fact by the party alleging it, see Laxmipatirao v. Venkatesh I.L.R. (1916) Bom. 315 19 Bom. L.R. 23 In the absence of any agreement to the effect that the adoption was to be in the dwyamuhyayana form, it must be presumed to be an ordinary adoption: see Huchrao Timmaji v. Bhimrao Gururao I.L.R. (1917) Bom. 277 20 Bom. L.R. 161 The power of giving and taking even an only son in adoption in the dwyamush yayana form is not confined to brothers but may also be exercised by their widows. The agreement or stipulation can, therefore, be entered into not only by the fathers but also by their widows: see Krishna v. Paramshri I.L.R. (1901) Bom. 537 3 Bom. L.R. 73 The agreement, therefore, by the plaintiff after the death of her husband to take Shidlingappa in adoption in the dwyamushyayana form is valid.
9. The dwyamushyayana form of adoption is only a variety of the dattaka. As the dwyamushyayana adopted son does not lose the gotra and the right of inheritance in his natural family like an ordinary, that is, kevala (simple), adopted son, and as he inherits both in his natural family and also in his adoptive family, it will stand to reason that in the case of death of such a dwyamushyayana adopted son the inheritance can be traced in both the families. The natural mother is, therefore, not excluded from inheritance.
10. It is contended on her behalf that as she is connected with the dwyamushyayana adopted son by Sapinda relationship and by virtue of her possession of particles of the same body, she is entitled to preference. The right of inheritance is regulated by the theory of propinquity according to Mitakshara, but the test of offering of pinda is not excluded according to the decisions of the Privy Council in Lulloobhoy Rappoobhoy v. Cassibai Buddha Singh v. Laltu Singh (1910) L.R. 42 IndAp 208 I.L.R. 37 All. 604 and Jotindra Nath Roy v. Nagendra, Nath Roy : (1931)33BOMLR1411 in the last of which it was observed as follows (p. 1416):-
It is, their Lordships think, a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara. No doubt propinquity in blood is the primary test, but the intimate connection between inheritance and funeral oblations is shown by various texts of Mann (see, for instance, Chapter IX, verses 136 and 142), and the Virmitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood relationship furnishes no certain guide.
11. In Anandi v. Hari Suba I.L.R. (1909) Bom. 404 11 Bom. L.R. 641 it was held that under the Mitakshara school of Hindu law, the adoptive mother is entitled to succeed, in preference to the adoptive father to a son taken in adoption, and that the text 'to the nearest sapinda the inheritance next belongs' must apply in virtue of the legal and Shastric fiction as much to an adopted son as to a natural born son, and that for religious purposes and merit the wife is identified completely with the husband and they form one body. It was, therefore, held that in the case of a simple adopted son, the adoptive mother is entitled to preference over the adoptive father.
12. In Kali Komul Mozoomdar v. Uma Shunkar Moitra it was held that an adopted son occupies the same position in the family of the adopter as the natural born son, except in a few instances which are accurately denied both in the Dattaka Chandrika and Dattaka Mimansa, and takes by inheritance from his adoptive mother's relations.
13. In Radha Prasad Mullick v. Ranee Mani Dassee I.L.R. (1905) Cal. 947 it was held as settled law that an adopted son holds precisely the same position as a son bora, as regards inheritance from the adoptive mother's relations, and the status of an adopted son, unless modified by express texts, is similar to that of a son born, as regards the performance of periodical obsequial ceremonies and inheritance.
14. In Dattatraya Bhimrao v. Gangabai I.L.R. (1921) Bom. 541 24 Bom. L.R. 69 it was held that an adopted son takes the place of a natural born son completely and is competent to inherit the property of his adoptive mother's ancestors.
15. Even though the adoptive mother may have died before the adoption, the adopted son becomes the son of that mother so as to inherit as such to the relations in her father's family. It was held in Sundaramma v. Venkatasubba Ayyar I.L.R. (1926) Mad. 941 that there is no authority for the view that in order to become an adoptive mother she should have actively participated in the adoption by actually receiving the boy in adoption. In the present case the plaintiff took the boy in adoption in dwyamushyayana form and entered into an agreement with the natural father that the boy adopted was to be the son of both. It would, therefore, follow that the adoptive mother of an adopted son occupies the position of a mother. This position is supported by the text of Nanda Pandita in Dattaka Mimansa, Section 1, pl. 22 (Stokes' Hindu Law, page 536) :-.in consequence of the superiority of the husband, by his mere act of adoption, the filiation 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.
16. The Dattaka Mimansa, Section 6, pl. 50, (Stokes' Hindu Law, page 612) lays down as follows :-
The forefathers of the adoptive mother only are also the maternal grandsires of sons given, and the rest for, the rule regarding the paternal, is equally applicable to the maternal graudsires.
17. In the case of a simple adopted son the exclusive filial relation to the adoptive parents and severance from the natural family result from the Very act of the gift of the boy in adoption. The question is discussed in Bai Kesarba v. Shivsangji : AIR1932Bom654 and Laxmipatirao v. Venkatesh I.L.R. (1916) Bom. 315 19 Bom. L.R. 23 The filial relation of the adoptive father in the case of dwyamushyayana adopted son is recognised by the Dattaka Chandrika, Section 2, pl. 34 and 36. By reason of the dwyamushyayana adoption the son is given in another family and the filial relation to the adoptive parents is created, but the ownership of the natural family is not extinguished by virtue of the agreement between the parties that he shall be the son of both, and the common relation to both fathers is established and continued. In this connection I may refer to Dattaka Chandrika, Section 2, pl. 41 and 42, (Stokes' Hindu Law, pp. 646 and 647), where the objection that the gift of a son in dwyamushyayana form extinguishes the right of the property of the natural father is answered by the Dattaka Chandrika by the analogy of a gift by a person in water, e. g., river which is made common or dedicated to the public on the ground that though the relinquishment extinguishes the peculiar property of the giver, the right of the giver isnot thereby excluded and therefore the common relation to both fathersof such a given son is established. It would, therefore, follow that though the gift of the adoptive son in the dwyamushyayana, form creates filial relation in the adoptive family and the adoptive mother gets all the rights of a mother, the rights of the natural mother are retained and are not extinguished.
18. On behalf of the natural mother reference is made to Dattaka Chandrika, Section 3, pl. 14 and 10 (Stokes' Hindu Law, pages 649 and 650 and also translated in the judgment of the lower Court), and to Vyavahara Mayukha, Chap. IV, Section 5, pl. 27 (Stokes' Hindu law, page 67). It appears that where both the natural and the adoptive fathers are dead, the pinda, (oblation) is to be offered first to the natural father and then to the adoptive father, and also when the Shraddha is performed, the maternal grandfathers, that is, the fathers of the natural mother are first designated and then those of the adoptive mother, and that after the fourth generation it is optional to invoke the adopter or not. The invocation of the maternal sires whether of the natural mother or of the adoptive mother is at the same time though the sires of the natural mother are to be called first. But these texts, in my opinion, offer slender ground for exclusion of the adoptive mother, for the sires of the adoptive mother are to be called and invoked at the same time as the invocation of the sires of the natural mother. If the invocation of the sires of the natural mother had been exclusively ordained, the matter would have stood on a different ground. The theory of adoption makes the adopted son by legal fiction the son of his adoptive father as a natural born son. The family, therefore, of the adoptive father in the case of a simple adopted son is the only family that can inherit to the adopted son. But in the case of a dwyamushyayana adopted son by reason of the stipulation between the natural father or mother and the adoptive father or mother that the adopted son shall be the son of both, the family of the natural father retains the right to inherit to the adopted son. As the dwyamushyayana adopted son is the son of two fathers, he is equally the son of two mothers, and in my view on the death of the dwyamushyayana adopted son both the mothers will succeed to the property of the dwyamushyayana adopted son.
19. The simple adopted son is not competent to marry within the prohibited degrees either in the natural family or in the adoptive family. The sapinda relationship, therefore, is recognised in both the families for the purpose of prohibition of marriage. But in the case of a dwyamushyayana adopted son, the sapinda relationship is recognised in the natural family also for the purposes of inheritance on account of the stipulation that the son adopted shall be the son of both the giver and the receiver. I think, therefore, that the natural mother is not excluded from inheritance. She retains the right of inheritance to the dwyamushyayana adopted son. The adoptive mother has acquired the right to succeed as mother by virtue of the adoption.
20. It is contended on behalf of the adoptive mother that she should be preferred to the natural mother on the ground that the property in suit belongs to the adoptive family, and it is contended that the property belonging to the adoptive family should not go out into another family by inheritance, and reliance is placed on Sarkar's Hindu Law of Adoption, second edition, page 383, where it is observed by way of addenda as follows :-
The natural mother of the son adopted in the dwyamushyayana form can be his heir. But a difficult question arises when such a son dies, after inheriting property from both adoptive and natural fathers, leaving behind him his adoptive and natural mothers. It is reasonable that both the mothers should inherit the respective shares of the property inherited by the son from their respective husbands.
21. In Behari Lal v. Shib Lal I.L.R. (1904) All. 472 it was held that a natural mother of a Hindu adopted into another branch of his family by the nitya dwyamushyayana form of adoption does not, on account of such adoption, lose her right of succession to her son in the absence of nearer heirs. In that case the property belonging to the adoptive family was held to pass to the natural mother in preference to a bandhu, that is, the adoptive father's sister's son. Reference was made there to the Dattaka Chandrika, Section 2, pl. 19, where it is laid down that in the case of a simple adopted son the extinction of the filial relation resulted from the gift alone, but in the case of the dwyamushyayana form of adoption the gift is a qualified gift, and the dwyamushyayana adopted son does not cease to have filial relations with his natural parents. It would, therefore, follow that the natural mother retains her right of inheritance to the dwyamushyayana adopted son. The argument that the adoptive mother is entitled to preference on the ground that the property belongs to the adoptive family, and if the right of the natural mother is recognised, the property would go into another family, is not valid, because if succession devolves on a daughter or a sister the property necessarily goes into another family according to the law prevalent in the Bombay Presidency, as she takes an absolute estate and would transmit the property to her heirs in another family. I think, therefore, that there is no valid ground for preference in favour either of the adoptive mother or the natural mother in the case of a dwyamushyayana adopted son, and they would, therefore, inherit to the dwyamushyayana adopted son equally as co-heiresses. This view seems to be consistent with the opinion of Mayne in his Hindu Law, 9th Edition, para. 167A, page 231, where it is observed in connection with Behari Lal's case, as follows :-
It was held by the Allahabad High Court that by virtue of the special agreement the relationship of the natural mother was unaffected by the adoption, and therefore her right of succession. If she had died leaving property it follows that Raghunandan might have been her heir. If the adoptive mother had survived him apparently both mothers would have been co-heiresses.
22. Simultaneous or joint inheritance is not unknown to Hindu law, e.g., in the case of widows, daughters, sons born from different daughters or reversioners standing in the same degree of relationship or bandhus between whom no ground for preference can be discovered.
23. I think, therefore, that the view of the lower Court that the plaintiff and defendant No. 5 succeed to the property jointly is correct, and both the appeals must, therefore, be dismissed with costs.
Murphy, J.
24. The question we have to decide is that of the inheritance to an adopted boy, whose affiliation was in a rare though still practised form known as dwyamushyayana. The special character of this form of adoption, of which there were once two varieties, is that by an agreement come to between the natural parents and the adopting parents to be, the boy remains a son in both his natural and his adoptive family, with similar rights, and almost though not exactly similar religious obligations, in each of his two families.
25. The special form of adoption is here admitted, the distinction made in the case of its two possible varieties does not affect the question, and the fact that the adoption was by a widow to her husband also here makes no matter, We have had the advantage of a very careful and elaborate argument on each side of the question and the specific texts and rulings relied on have been set out in detail in my learned brother's critical examination of them in his judgment. The net result is, I think, to show that there is no text affording a solution to our specific question and no precedent which has dealt with it. In this state of the authorities the arguments have necessarily all been analogical ones and beset with the weakness of that form of logical exposition, that is, the fact that they are based on insufficient or non-crucial points of similarity or difference, and afford no ground for a firm opinion either way.
26. It is, therefore, necessary, I think, to revert to first principles. On the facts, had this adoption been in the 'kevala' or ordinary form, the adopting mother would have been the next heir to her son-for an adoption confers all the rights of a son on the stranger boy adopted, and invites all the consequential rights of inheritance to him. The intention of the special form of adoption here carried out is to acquire all these rights for the boy adopted, while at the same time allowing him to retain all he had in his natural family. The logical conclusion would be that the acquisition in the adopting family, and the consequential rights of others on the adoption, including that of inheritance to him, would devolve separately in each family-as in fact they must according to the Course of events in each family, and consequently that on the facts here the adopting mother would bo the preferential heir; but this purely logical conclusion would not, I think, be in accordance with the doctrines of Hindu law in connection with adoption. The fundamental doctrine is that an adoption creates a son, who, though he may be a stranger in blood, acquires by the ceremony not only the rights of an heir in the adopting family, but a religious or sacramental character, which endows him also with the spiritual qualities of a real son, so that he can perform and as efficaciously, all the religious duties of a born son after his father's death. This being so, I think that in the special case we have to do with, the adopted son must be taken to have had, on his death, two mothers, for it is impossible in this view to differentiate between the real and the adopting one, and in that case I think both surviving mothers are equally the heirs.
27. I agree with the conclusion come to on somewhat different grounds by my learned brother, and think the decree challenged should be confirmed and the appeals against it dismissed with costs.