History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.t2.73

v4.c63.t2.73

Vas. and Baud. both laid down that if after a son is taken in adoption an *aurasa* son is born to the adoptive father the former takes a fourth share. There is conflict among the smṛtis and the digests about the share of the adopted son when an *aurasa* is subsequently born, and about the meaning of 'a fourth share'. The Dāyabhāga (X. 13 p. 148) and V. C. p. 150 quote a verse of Kātyāyana¹³³⁰ that when an aurasa son is born, other kinds of sons, if of the same caste as the father, take only a third of the estate. It has been held in Bengal that in these circumstances the adopted son takes one third of his adoptive father's estate. In Benares and among Jains¹³³¹ the adopted son gets one fourth of the estate. The S. V. p. 393 holds that he gets¹³³² ⅕th. In Bombay it¹³³³ has been held that the adopted son takes not ¼th of the whole estate, but ¼th of the share of the aurasa son i. e. ⅕th (the aurasa son taking ⅘ths). In Bombay the same rule applies among śūdras.¹³³⁴ But in Bengal and Madras it has been decided, relying on a passage in the Dattakacandrikā (p. 98)¹³³⁵ that the adopted son and the subsequently born *aurasa* son of a śūdra share equally.¹³³⁶ If the estate is impartible property or an estate to be taken by lineal primogeniture and the owner first adopted a son and then he had an aurasa son, it has been held that the subsequently born aurasa son takes the whole estate.¹³³⁷ If there are two brothers who form a joint Hindu family and one of them has a natural born son and the other adopts a son, the adopted son of one brother gets on partition a share of the family estate equal to that of the natural born son of the other¹³³⁸ brother, since the rule of Vas. applies only as between the aurasa and dattaka sons of the *same man*.1338a