History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.59
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.59
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v4.c63.t2.59.1
The plain meaning of the verse of Manu (IX. 142) is that when a man gives away his son in adoption, then that son is transferred into another family, does not perform the śrāddha and similar rites for the giver and cannot claim to take the wealth of his natural father as a son on the father's death or demand a partition from his father. The other son or sons of the giver are to perform the śrāddhas for the father and to succeed to the family wealth. But this verse has been twisted by some High Court decisions to yield another rule. Suppose A, a Hindu, has an only son B. On A's death B takes the whole ancestral property as the only surviving co-parcener and then B is given in adoption by his mother to X. Suppose B has a daughter C born to him before his adoption to X. Does B forfeit the estate taken by him as the last surviving male with the result that on B's adoption to X his daughter C takes the estate (which had already vested absolutely in B) as if he was dead in the family of A. The Bombay High Court has held in two decisions that on B's¹³¹⁶ adoption to X in the above illustration he loses or forfeits the property he took as the last surviving co-parcener in the family of A and his daughter C would take the estate of B as if he were then dead (though he is actually living).
v4.c63.t2.59.2
The result of these decisions is that the verse of Manu is construed as laying down that though a man may have been absolutely entitled to certain property as a member of one family, on his adoption into another family he loses that estate which then passes on to his heir as if he had died on the day of adoption. This construction of the verse of Manu has not been accepted by the Madras and Calcutta High Courts,¹³¹⁷ which hold that an adoption does not divest any property which has vested in a man previous to his adoption into another family. It may be noted that the Bombay High Court itself gave a decision¹³¹⁸ which is inconsistent in principle with the two decisions cited above, when it held that where a father and his four sons partitioned ancestral family property and one of the sons was subsequently given in adoption into another family, the son so adopted was not divested by the subsequent adoption of the property already taken by the son on partition. In a still later case the Bombay High Court approves of its first decision in 40 Bom. 429 and observes :¹³¹⁹ ' the verse of Manu refers not only to the *riktha* of the natural father but also to the gotra of the natural father. It is quite clear that the gotra of the natural father is vested in the son by his birth. The gotra so vested in the son ceases after the son is given in adoption.
v4.c63.t2.59.3
It is difficult to understand why the riktha which is spoken of in the same manner as gotra in the verse should not cease by the entire cessation of connection with the natural family. The gotra and riktha are inextricably joined together in a dvandva compound and it would follow logically as well as grammatically that the adopted son must lose both together and cannot lose the former and keep the latter. ' In this passage the premiss that there is entire cessation of connection with the natural family is entirely wrong as has already been shown and will be shown a little later on. The adoptee's connection with the gotra of the natural family does not cease for all purposes at all. Therefore the reasoning of the passage quoted above is entirely misconceived and is further opposed to two well known rules of the Mīmāṁsā evolved for the construction of texts. On the interpretation given to Manu IX. 142 by the Bombay decisions that verse lays down two rules (*vidhis*), viz. (1) a person adopted into another family will not take the wealth of his natural father or any one in that family *after adoption*; (2) that a person adopted into another family loses or forfeits on adoption wealth that he may have already taken absolutely in the natural family as a member of that family *before adoption*.
v4.c63.t2.59.4
These are two entirely different propositions and the rule of mīmāṁsā is that one and the same sentence¹³²⁰ should not be construed as laying down two rules (*vidhis*) applicable to different sets of circumstances. To so construe a text is to be guilty of the fault of *vākyabheda* (splitting up of a sentence so as to yield two distinct rules). The V. Mayūkha construed Manu IX. 142 so as to indicate only one sense and avoid the fault of *vākyabheda* on the analogy of two examples discussed in the Pūrvamīmāṁsā¹³²¹ works, but if the reasoning of the Bombay High Court were followed the same fault to avoid which Nīlakaṇṭha strives hard would be committed. There is another mīmāṁsā rule¹³²² which will be violated by the Bombay High Court's interpretation of Manu IX. 142 viz. when an already existing thing or entity and something to be accomplished or brought about in future are spoken of together in a sentence the thing already existing or accomplished is mentioned simply for the sake of the thing to be accomplished. The accomplished fact is adoption itself. Manu who mentions adoption or the adopted son which is an accomplished entity also mentions along with it the taking of property (*rikthaharaṇa*); hence that taking must have reference to the future bringing about and not the undoing of *rikthaharaṇa* which had already taken place long before.