व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

122 VYAVAHĀRAMAYŪKHA [ S. IV 5, 21-22
M. p. 59 ll. 10-17
The son given shall not have (share) the family name (gotra) and
the wealth (riktha) of his natural father, the piṇḍa (the cake offered
to deceased ancestors) follows the family name and the wealth of him
who gives (his son in adoption) the svadhā (the obsequies) cease (so
far as that son is concerned)
Gotrarikthānugah (in Manu) means that follows the gotra and
riktha (estate) i. e. it is generally co-existent with the two (gotra and
riktha). Dattrima (in Manu) means the simple (kevala) adopted son
since it will be stated later on that in the case of the dvyāmuṣyāyaṇa
the family name (gotra of the natural father) and the rest do persist.
48 at p. 449 one of the Mīmāṁsā doctrines appears to be tacitly employed. The Bombay
decision in Mahableshwar v. Subramanya 47 Bom. 542 (= 25 Bom. L. R. 274) seems to be
opposed in principle to the decision in 40 Bom. 429. In 47 Bom. 542 where a father and his
four sons partitioned family property and then one of the sons was given in adoption to an-
other person, it was held that the son so adopted was not divested by the adoption of the pro-
perty he took on partition. In Shyamcharan v. Shricharan 56 Cal. 1135 it was held following
29 Mad. 48 that a man who had inherited property from the family of birth was not divest-
ed of it on being subsequently adopted by another man. In Manikbai v. Gokuldas 49 Bom. 520
(= 27 Bom. L. R. 414) it was held that where a person, who is the sole surviving coparcener in
his natural family and has a daughter then living, is adopted into another family, his estate in
his natural family vests in his daughter on his adoption. This case refers to both 40 Bom. 429
and 47 Bom. 542 with approval. It is extremely difficult to reconcile the three Bombay cases.
In Raghuraj Chandra v. Subhadra Kunwar 55 I. A. 139 at p. 148 the case in 40 Bom. 429
is apparently cited with approval, but in a different connection. Vide 56 Cal. 1135 at p. 1139.
In the very recent case of Bai Kesarba v. Shivsangji 34 Bom. L. R. 1332 Patkar J. in an
elaborate judgment holds that 40 Bom. 429 was correctly decided and follows it. At p.
1340 the verse of Manu is quoted and translated (the reading na haret being accepted as
meaning 'shall not take') at pp. 1341-42 the gloss of the Mayūkha on that verse is quoted
and on p. 1342 the conclusion is reached that 'the gotra so (i. e. by birth) vested in the son
ceases after the son is given in adoption. The gotra and riktha (the estate) are inextricably
joined together in a dvandva compound and it would follow logically as well as grammati-
cally that the adopted son must lose both together and cannot lose the former and keep the
latter'. The learned judge does not however meet the two objections based on the Mīmāṁsā
stated above, nor does he correctly understand the Mayūkha. The Mayūkha does not make
a sweeping assertion that all connection of the son given in adoption with the family of birth
ceases. All that the Mayūkha says is that the verse of Manu is not to be taken literally, but
that it indicates the cessation of all those consequences that are due to connection with the
piṇḍa in the case of the natural father and the rest. The Mayūkha does not expressly say
anything about the cessation of property already taken, nor about the cessation of the gotra for
purposes other than the piṇḍa. As a matter of fact the gotra of the natural family has to be
considered even after the adoption of a boy in another gotra for purposes of marriage. The
same learned judge in the same case observes 'the simple adopted son is not competent to
marry within the prohibited degree either in the natural family or in the adoptive family.
The sapiṇḍa relationship therefore is recognised in both the families for the purpose of prohi-
bition of marriage'. In Sayaji v. Ningappa 34 Bom. L. R. at p. 60. Thus there is no
absolute cessation on adoption for all purposes, but only for those purposes
in which the piṇḍa (rice-ball) enters. If that is so as to gotra there is no reason why in the
case of riktha also there is not to be a qualified cessation, viz. as to inheritance falling in
after adoption.