Das, J.Although I differ from the learned District Judge in regard to both the questions decided by him, I think that the decree pronounced by him is right and that it ought to be affirmed.

2. The plaintiff claims to have been adopted by Khub Lal as his karta putra on the 26th January 1915. Khub Lal died on the 28th December 1915 and a posthumous son Hanuman Prasad was born to him who, however, died shortly afterwards. The plaintiff contends that not withstanding the birth of a posthumous son he is entitled to succeed to the estate of Khub Lal to the exclusion of the defendant, who is the widow of Khub Lal and who is in possession of the estate not as the heiress of Khub Lal, but as the heiress of her deceased son, Hanuman Prasad. Two questions were raised in the litigation: first the question of fact, namely whether the plaintiff was adopted by Khub Lal as his karta putra, and, secondly the question of law, namely, whether, assuming that he was so adopted, he is entitled to succeed to the properties in the events which have happened. The learned District Judge held that the adoption was not proved and decided the question of fact in favour of the defendant. In regard to the other question raised before him, he thought that the plaintiff would have been entitled to l/4th share in the estate of Khub Lal had he succeeded in proving his adoption. In my opinion the plaintiff has established the factum of his adoption, but he is not entitled to succeed to the estate of Khub Lal having regard to the fact that a son was born to Khub Lal subsequent to the plaintiffs adoption.

3. I will first deal with the question of fact. Khub Lal had three daughters, Tapesh war Kuer, Dhano Kuer and Muneswar Kuer, of whom Dhano Kuer and Muneswar Kuer were alive at the data of the alleged adoption. The plaintiff is the son of Tapeshwar Kuer who died many years ago. Khub Lal had also a son who died in his infancy. It is the common case that Kanhaiya Lal, the plaintiff, was brought up as a son by Khub Lal and was the object of his love and affection. He certainly looked upon him as his son and referred to him as his son to all his friends. The plaintiff lost both his father and mother in his infancy and as I have said was brought up by Khub Lal and was married at his expense. The learned District Judge accepts the case of the plaintiff as inherently probable. He also thinks that "the story told has been told in a consistent way and there is not much contradiction in the same." He says that he "might have been disposed to accept their evidence" but for certain circumstances of the case to which he refers. I will presently refer to these circumstances myself; it is sufficient for me to point out at the present moment that in the view of the learned District Judge the story told by the plaintiff is inherently probable and is supported by evidence which is consistent. After discussing the evidence his Lordship remarked:

4. I hold that the plaintiff has established that he was adopted by Khub Lal as his karta putra.

5. The next question is whether in the events which have happened the plaintiff is entitled to succeed to the estate of Khub Lal. The plaintiffs case is: first that he has the right to succeed to the estate of Khub Lal by virtue of the contract at the time of the adoption; and secondly that in any event he is entitled to succeed to a share of that estate. The defendants case is that the only contract between the parties was as to sonship and that he took no estate by virtue of that sonship although he might have, succeeded to one had a son not been born to Khub Lal. It is in my opinion, a very strong thing to say that a karta putra who retains his status in his natural family and loses no right in that family is in a better position than a dattak putra who undoubtedly loses his status in his natural family and who is liable to be defeated in his adoptive family by the birth of a natural born son. The modern text books refer to the adoption of a Karta putra as an adoption in the Kritrima form; but it seems to me that this is not quite correct. I do not however, propose to enter upon this question as it is not material to this litigation. It may be that the system as to Karta putra is an extension of the Kritrima from of adoption; but there is no doubt whatever that the sytem as we now know it in Mathila is the invention of that very ingenious person, the Mithila Brahmin who is so anxious to preserve unsullied the purity of his genealogical table. The difficulty with which the Mithila Brahmin was faced was this: where an adoption took place the name of the adoptee had to be removed from the genealogical table of his natural family and a question might be raised whether the genealogical table with the correction was an honest document. He therefore, devised the system of Karta putra--under which a person on adoption did not lose his status in his natural family, though he acquired a status as the son of his adoptive father. No ceremonies or sacrifices are necessary to the validity of this particular form of adoption. All that is necessary is the consent of the adoptee which involves the adoptee being an adult. As I have said, he does not lose the rights of inheritance in his natural family, and takes the inheritance of his adoptive father, but not of his fathers father or other collateral relatives nor of the wife of his adoptive father or her relations. The following passage in Colebrookes Digest (Book 5, Ch. 4, Section 10, cited in Sarkars Adoption Edn. 2, p. 447) is of interest as stating the position in this particular form of adoption: "Sons are thus adopted in Mithila; the practice of adopting sons given by their parents was there abolished by Sridatta and Partihasta, although the latter had been himself adopted in that manner. Their motive was lest, a child already registered in one family, being again registered in another, a confusion of families and names should thence ensue. A son adopted, in the form so briefly noticed in the present section, does not lose his claim to his own family, nor assume the surname of his adoptive father; he merely performs obsequies, and takes the inheritance." The reason for this particular form of adoption in Mithila is also explained by Macnaghten as follows (Macnaghtens Hindu law, Vol. 1, 95-100): "But according to the doctrine of Vachaspati, whose authority is recognized in Mithila, a woman cannot even with the previously obtained sanction of her husband, adopt a son after his death, in the Dattak form; and to this prohibitory rule may be traced the origin of the practice of adopting in the Kritrima form, which is there prevalent. This form requires no ceremony to complete it, and is instantaneously perfected by the offer of the adopting, and the consent of the adopted party. It is natural for every man to expect an heir, so long as he has life and health; and hence it is usual for persons, when attacked by illness, and not before, to give authority to their wives to adopt. But in Mithila, where this authority would be unavailable, the adoption is performed by the husband himself: and recourse naturally had to that form of adoption which is most easy of performance, and therefore less likely to be frustrated by the impending dissolution of the party desirous of adopting." The rights of the adopted son would seem to depend on the contract between him and his adoptive father, and the question is what is that contract

6. Mr. Jayaswal strongly contends before us that it is part of the contract that the adoptee should succeed to the estate left by his adoptive father. I have investigated this matter with some care and I find it difficult to accept this proposition. As I have said, a Dattak son who loses his status in his natural family has no absolute right to the estate of the adoptive father. He is liable to be defeated by a gift inter vivos or by a devise made by his father in favour of another person. He is also liable to be defeated, if not absolutely, certainly to the extent of important shares in the estate by the birth of a natural born son subsequent to the adoption. What reason is there for suggesting that a Karta putra is in a better position than a Dattak son It is not suggested that the contract in regard to this particular form of sonship involves a contract by the father to devise the estate to the adoptee. If that were established, it might be urged that the adoptee might claim specific performance of the agreement against the person in actual possession of the estate agreed to be devised to him. If that were the position of Mr. Jayaswal, the answer would be that the plaintiff was admittedly a minor at the date of the adoption, and whatever the position may be in Hindu Law, a parson in a British Court cannot sue for specific performance of an agreement entered into at a time when he was a minor. But if it is not the case of the plaintiff that there was a contract to devise the estate to him, what else can there be in the agreement It surely cannot be suggested that anyone can alter the rule of succession laid down by Hindu Law. To succeed in his argument Mr. Jayaswal must establish that it is the rule of Hindu Law that a karta putra must succeed to the estate of his adoptive father and that it is not open to his adoptive father to defeat his interest either by a gift inter vivos or by a will to take effect upon his death. For this proposition there is no authority, and I am unable to accept it.

7. Mr. Jayaswal relies upon a decision in Kullean Singh v. Kirpa Singh and Bholee Singh 1 Sel Rap 11. In answer to a question put by the Court in that case the pundit thus described the ceremony of adoption in this particular form: "Let the person (intending to adopt) first consult a Brahmin, and, having discovered a propitious moment, let him, in the presence of the Brahmin, and of some friends or relatives, place something in the hand of the person to be adopted, and say to him: Be thou my adopted son, my goods and effects shall become thy property. The person adopted will reply: I agree to become thy son". Mr. Jayaswal relies upon the fact that it is part of the contract that the adopted father says: "My goods and effects shall become thy property," and so they will, unless the adoptive father makes a gift of the goods and effects or gives them away by his will to take effect on his death. In my opinion the passage upon which Mr. Jayaswal relies does not establish that succession to the estate of the adoptive father is inherent in the status of a karta putra.

8. But apart from any other view it seems to me that this is not a very correct way of describing the ceremony. We have two latter cases: Mt. Sutputte v. Indranaund Jha 2 Sel Rep 222 and Ooman Dut v. Kunhia Singh 3 Sal Rep 192. In both these cases the ceremony is thus described: "The prescribed form for adopting a Kritrima son is as follows: In an auspicious hour let him bathe, and also cause the parson whom he wishes to adopt to be bathed; let him present something at his pleasure, and say: Be you my son; and let the Eon answer, I am become your son. Then let him, according to custom, give a suit of clothes to the son. These are the legal conditions of adoption," and then it is said in the case in 2 Select Report at p. 224 that "The adopted son will inherit the property of his adoptive father, even although the latter leave a widow." This is accepted by Mayne as the ceremony in the Kritrima form of adoption. He says as follows: "At an auspicious time, the adopter of a son, having bathed, addressing the person to be adopted, who has also bathed, and to whom he has given some acceptable chattel, says: Be my son. He replies: I am become thy son. The giving of some chattel to him arises merely from custom. It is not necessary to the adoption. The consent of both parties is the only requisite; and a set form of speech is not essential:" (see Section 206). It seems to me therefore that it cannot be urged that the plaintiff takes the estate of Khub Lal by virtue of his original contract with him.

9. The next question is whether he is entitled to any share in the estate of Khub Lal. This question admits that the natural born son was the proper person to succeed to the estate of Khub Lal; but the question still remains whether the adopted son is to be altogether excluded. Now, on this question different Smriti writers have laid down different rules; but we are concerned with the rule in the Mithila School. After quoting the various Smriti writers, Bachaspati Misra, who is of paramount authority in Mithila says as follows: "Manu and other legislators have said that, notwithstanding other kinds of some sons, the legitimate son alone receives the whole estate of his father, but they have also declared that the other sons are sharers of the estate. To remove this contradiction it must be understood that, if the legitimate son be virtuous, he shall receive the whole estate without giving a share to the others but if ha be void of good qualities, and others possess them, they are entitled to have their respective shares, as has been stated above." In my opinion this is conclusive of the rights of the parties in this litigation. It was contended on behalf of the appellant by Mr. Jayaswal that in order to entitle a legitimate son by which I understand a natural born son to succeed, he must show that he is virtuous but the question does not arise because the natural born son in this case died soon after his birth and it cannot be suggested that he was not virtuous. If this particular form of adoption be the same as the kritrima form of adoption, then this passage in Vivada Chintamani (Tagores Edition p. 287) is conclusive of the rights of the parties. If on the other hand, this particular form of adoption is not the same as kritrima form of adoption, as I am inclined to think, the rule laid down by Bachaspati Misra must still apply since he has made it clear that where a natural born son is in existence, he is entitled to exclude every other kind of son from sharing with him in the estate of his father.

10. In my opinion the suit was rightly dismissed by the learned District Judge and I must dismiss this appeal with costs.

Adami, J.

11. I agree.