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PETITIONER: KRISHNAMURTHI VASUDEORAO DESHPANDE AND ANR.

       Vs.

RESPONDENT: DHRUWARAJ

DATE OF JUDGMENT: 05/05/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K.

CITATION:  1962 AIR   59            1962 SCR  (2) 813  CITATOR INFO :  RF         1970 SC1730  (3)  E&R        1974 SC 878  (15)

ACT: Hindu Law-Joint family-Adoption-Rights acquired by  adoptive son  relating  back  to date of death  of  adoptive  father- Property-Collateral  succeeding to  co-parcener-If  inherits absolutely or subject to defeasance.

HEADNOTE: Respondent  was adopted by a widow after about 63  years  of her husband’s death.  The husband had predeceased his father ’N’ leaving behind him the said widow and two sisters K. and S.On  N’s  death  K and S inherited  in  equal  shares.   On K’sdeath  her  son succeeded and on his death his  two  sons the present appellants succeeded to her share. The  respondent instituted the suit for the recovery of  the properties from the appellants, alleging that the immoveable properties  formerly belonged to the ownership of  and  were under the Vahiwat of the joint family of his adoptive father and  grandfather  respectively.  The appellants  denied  the respondent’s right to the properties contending that K their grandmother  was the full owner of the properties  and  thus became a fresh stock of descent and that they, inherited the properties from their father to whom they had been alienated by K their grandmother. The High Court held that the alleged alienation by K of  her hare  to  her son was not binding on  the.  respondent,  and further  held that tile respondent could divest  the  appel- lants  of the properties which belonged to the  respondent’s adoptive grandfather. The  question  was whether the respondent on  his  adoption, could  divest  the  appellants  of  the  properties  of  his adoptive father and grandfather. Held, that when a person is the owner of property possessing a  title  defeasible all adoption, not only that  title  but also  the title of’ all persons claiming under him  will  be extinguished on the adoption. The  heir of a collateral succeeding to the  sole  surviving co-parcener inherits the property absolutely, but subject to defeasance, and the right in the property devolves on his 814

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heirs  who  would take that property absolutely,  but  still subject  to defeasance, as no better title could  have  been inherited,  for  the  character of the-  property  does  not change  from  the  co-parcenary property  to  self  acquired property,  so  long  as there was  the  possibility  of  the defeasance of the absolute title by a widow of the family of the  last surviving co-parcener adding a member to  the  co- parcenary by adopting a son   to her deceased husband. Shrinivas  Krishnarao Kango v. Narayan Devji Kango and  Ors. (1955) 1 S.C.R. 1, applied. Ramchandra Hanmant Kulkarni v. Balaji Datto Kulkarni, I.L.R. 1955 Bom. 837, disapproved. Amarendra Mansingh v. Sanatan Singh, 60 I A. 242, discussed. Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil, 70 I.A. 232, discussed.

JUDGMENT: CIVIL APPELLATE, JURISDICTION Civil Appeal No. 499 of 1957. Appeal  from  the judgment and decree dated the  August  17, 1954, of the Bombay High Court in Appeal No. 236 of 1950. Purushottam  Trikumdas,  N.  S. Anukhinda  and  Mr.   S.  K. Sastri, for the appellants. K.   R.: Bengeri and A. G. Ratnaparkhi, for the respondent. 1961.  May 5. The Judgment of’ the Court was delivered by. RAGHUBAR.  DAYAL, J. This appeal, on certificate under  Art. 133  of  the  Constitution,  raises  the  question,  whether Dhruvraj,  respondent, on his adoption, divests the  defend- ants-appellants  of the properties- of his  adoptive  father and grandfather. The facts giving rise to this question are as 815 follows   Bandegouda,  father  of the  respondent,  died  in 1882,  predeceasing  his father Narasappa  gouda,  who  died later  in  1892.  Bandegouda left his  widow  Tungabai,  who adopted Dhruvraj as her son on July 31, 1945. Narasappagouda, on his death, left two daughters, Krishnabai and Shyamabai alias Chamavva.  The two sisters succeeded  to their  father’s  property in equal shares.  We are  not  now concerned with the share of Shyamabai, the respondent’s suit with respect to it having been dismissed. Krishnabai  died  on October 21., 1933.   Her  son  Vasappa, succeeded  her and ’died on February 20, 1934,  leaving  two sons,  the appellants, Krisnamurti and  Subbaji.   Dhruvraj, respondent,  instituted  the suit for the  recovery  of  the property from the two appellants alleging that the immovable properties  formerly belonged to the ownership of  and  were under the vahiwat of the joint family of the above-mentioned Narasappagouda  Patil and Bandegouda Patil.  The  suit  also related  to declaration that the plaintiff was  entitled  to the  ’Patilki’ rights in respect of the village  Hombal,  as the near relative of Narasappagouda.  The appellants  denied the  respondent’s rights to the properties  contending  that Krishnabai  was  the full owner of the properties  and  thus became a fresh stock of descent and thatthe  appellants had inherited the properties fromtheir father   Vasappa to whom they had been alienated by Krishnabai in 1930. TheHigh Court held that the alleged alienation by Krishnabai of  her share  to Vasappa in 1930 was not binding on the  respondent as it amounted to a gift of immovable properties and was not made  by, a registered document.  It further held  that  the respondent  could divest the appellants ’of  the  properties which belonged to the respondent’s adoptive grandfather  and upheld  the  decree of the trial Court with respect  to  the

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property which had 816 gone  in the possession of Krishnabai on. the death  of  her father. This  Court  considered the rights of in  adopted  son  with respect  to the property of his adoptive father and  of  the collaterals, in Shrinivas     Krishnarao  Kango  v.  Narayan Deviji  Kango  and Ors- (1).  The principles to  be  adduced from what was said in this case may be summarised thus : (i)An  adopted son is held entitled to take in  defeasance of the rights acquired prior to his adoption. on the  ground that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. (ii) As a preferential heir, an adopted son (a)   divests his  mother of the estate of his adoptive father ;  and  (b) divests  his  adoptive mother of the estate she gets  as  an heir of her son who died after the death of her husband. (iii)A,  coparcenary  continues to subsist so  long  as there  is  in existence a widow of a coparcener  capable  of bringing a son into existence by adoption; and if the  widow made  an adoption, the rights of ’the adopted son.  are  the same  as  if he had been in existence at the time  when  his adoptive  father  died  and that  his  title  as  coparcener prevails as against the title of any person claiming as heir to the last coparcener. (iv)The  principle. of relation back applies only when  the claim  made by the adopted son relates to the estate of  his adoptive   father.    The  estate  may   be   definite   and ascertained,  as when he is the sole and absolute  owner  of the properties, or (1) (1955) 1 S.C.R. 1.                     817 it  may  be fluctuating as when he is a member  of  a  joint Hindu  family  in which the interest of the  coparceners  is liable to increase by death or decrease by birth.  In either case,  it is the interest of the adoptive father  which  the adopted  son is declared entitle to take as on the  date  of his  death.   This  principle of  relation  back  cannot  be applied  when claim made by adopted son relates not  to  the estate  of his adoptive father but to that of a  collateral. With reference to the claim with respect to the estate of  a collateral, the governing principle is that inheritance  can never be in abeyance, and that once it devolves on a  person who is the nearest heir under the law, it is thereafter  not liable to be divested.  When succession to the properties of a  person  other then an adoptive father  is  involved,  the principle  applicable is not the rule of relation  back  but the rule that inheritance once vested could not be divested. (v)The  estate continues to be the estate of the  adoptive father  in whosoever’s hands it may be, that is, whether  in the  hands of one who is the absolute owner or one who is  a limited  owner.   Any  one who inherits the  estate  of  the adoptive father is his heir, irrespective of the inheritance having  passed through a number of persons, each  being  the heir of the previous owner.  This Court considered the  case of Amarendra Mansingh v. Sanatan Singh (2) .which related to an  impartible zamindari.  The last of its holder  was  Raja Bibhudendra.   He died on December 10, 1922,  unmarried.   A collateral, Banamalia, succeeded to the estate as the family custom  excluded  females from succeeding to  the  Raj.   On December  18, 1922 Indumati, mother of Bibhudendra,  adopted Amarendra  to  her  husband, Brajendra.   The  question  for determination,  in  that ease-was  whether  Amarendra  could divest Barnamalia of the estate, and it was answered in  the

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positive by the Judicial Committee.  This Court said at page 19: (2)  1923 L.R. 60 I.A. 249.      818       "The estate’ claimed was that’ of his adoptive       father,     Brajendra, and if the        adoption       was at all valid, it related back to     the       date   of  Brajendra’s  death,   and   enabled       Amarendra to divest Banamalai."  last  holder of the estate was not Brajendra, the  adoptive father, but Bibhudendra, who may be said to be the  adoptive brother. The estate in his hands is described as the  estate of Brajendra, the adoptive father. This Court said about the decision in this case:       "This decision might be taken at the     most       to be an authority for the position that    when       an adoption is made to A, the adopted    son       is  entitled  to recover the estate of  A  not       merely when it has vested in his widow who  makes       the adoption but also in any other heir  of       his. It is no authority for the contention  that       he is entitled to recover the estate of B     which       had vested in his heir prior to his   adoption       to A." Banamalai,  heir  of Bibhudendra, was considered to  be  the heir of Brajendra also. In  considering the case of Anant Bhikappa Patil (Minor)  v. Shankar Ramchandra Patil(3), this Court observed at page 24       "When an adoption is made by a widow of either       a coparcener   or a separated member  then the       right  of the adopted son to claim  properties       as  on the date of the death of  the  adoptive       father by reason of the theory of   relation       back is subject to the limitation that   alienations       made prior to the date of adoption are binding       on  him, if they were for purposes binding  on       the  estate.  Thus, transferees  from  limited       owners  whether they be widows or  coparceners       in joint family, are amply protected.   But no       such safeguard exists in respect (3)  1933 L.K. 70 I.A. 232.                     819       of property inherited from a collateral, beca-       use  if  the adopted son is  entitled  on  the       theory   of  relation  back  to  divest   that       property  the  position of  the  mesne  holder       would  be that of an owner possessing a  title       defeasible  on   adoption, and the  result  of       such adoption must be to extinguish that title       and  that of all persons claiming  under  him.       The   alienees   from  him   would   have   no       protection,  as there could be no question  of       supporting  the alienations on the  ground  of       necessity or benefit." It follows from these observations that if A is an owner  of property possessing a title defeasible on adoption, not only that title but also the title of all persons claiming  under him, will extinguish on the adoption. In  the present case, Krishnabai owned the property as  full owner  on the death of her father Narasappagouda,  according to  the Hindu law in the area in which the property in  suit lay.   But  her title was defeasible on Tungabai,  widow  of Bandegouda,  adopting  a son to her  husband.   Vasappa  and after  him, his sons, inherited this property of  Krishnabai and  thus  the appellants claimed under  Krishnabai.   Their

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such claim is therefore defeasible on the adoption of a  son by  Tungabai.   The  fact  that  Krishnabai  inherited   the property  of  her father absolutely, does  not  affect  this question of title being defeated on the adoption of a son by Tungabai.  The character of the property does not change, as suggested  for the appellants, from coparcenary property  to self-acquired  property of Krishnabai so long  as  Tungabai, the widow of the, family, exists and is capable of  adopting a son who becomes a coparcener. The case of in adopted son’s claiming to divest the heir  of a  collateral, who died before the, adoption took  place  of the  property  inherited from the collateral,  is  different from the case of his 820 claiming  the  property  which originally  belonged  to  the adoptive father but had devolved on a collateral and,  after the  death  of the collateral. which took place  before  the adoption  devolved  on  a hee of thir  collateral.   In  the former case, the claim is to the property of the collateral, while  in  the  latter case it is to  the  property  of  the adoptive  father,  which,  by force  of  circumstances,  had passed through the hands of a collateral. We  may now consider the Full Bench Case of the Bombay  High Court, Ramchandra Hammant Kulkarni v. Balaji Datto Kulkarni, (4)  which overruled the judgment in the instant case.   The question formulated for the decision of the Full Bench was       "If  on the death of a sole  surviving  copar-       cener his property has devolved upon his  heir       by inheritance and on his death it has  vested       in his own heir, would the subsequent adoption       in the family of the sole surviving coparcener       divest it from such heir?". The  facts having a bearing on the decision of the  question were  as  follows  : Ramchandra and  Balaji  were  brothers. Ramchandra  died on October 10, 1903, and his widow  Tarabai died  two  days later.  Their son Hammant  had  died  during Ramchandra’s lifetime, leaving behind him his widow Sitabai. The  Watan property of Ramchandra devolved on  Balaji  after the  death  of Tarabai.  On Balaji’s death, it  devolved  on Datto his son who died in 1916.  On his death, the  property devolved  upon his son Balaji.  Sitabai, widow  of  Hanmant, adopted  Ramchandra, the plaintiff, on.  January  21,  1945. Ramchandra  thereafter instituted the suit  against  Balaji, son  of  Datto, and claimed that property  which  originally belonged to his a adoptive family on the ground that he  was entitled  to  recover  it by virtue of  his  adoption  which related (4)  I.L.R 1955 Bom. 837. 821 back to the date of the death of his adoptive father. Chagla,  C. J., delivering the judgment of the Court in  the above case said, in answer to the question formulated,  that the  subsequent  adoption in the family the  sole  surviving coparcener  would  not divest the  property,  assuming  that Ramchandra, the adoptive grandfather. was the sole surviving coparcener  of  his  own branch and that on  his  death  the property  devolved  upon Datto and then  upon  Balaji.   The learned  Chief  Justice,  in  considering  the  question  on principle, said at page 851 :       "  ... and therefore it is well settled  since       the  Privy  Council decided Anant  v.  Shankar       that Dattu inherited this property subject  to       defeasance.,  the defeasance coming into  ope-       ration  in the event of the  potential  mother       Sitabai  adopting  a son into  the  family  of

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     Ramchandra." He said at the page 852       "Balaji  has  succeeded to the estate  of  his       father Dattu and what the plaintiff is  really       claiming is not the property of Ramchandra but       the   property  of  Dattu  which  Balaji   has                     inherited as his son.... Therefore, really, the       plaintiff  would have displaced Dattu  as  the       preferential heir to his own grandfather.  But       it   is  difficult  to  understand  how   that       principle  can apply when we are dealing  with       property  in  the hands of  Dattu’s  heir’  It       cannot  be said that qua the estate  of  Dattu       the  plaintiff  is  an  heir  preferential  to       Balaji,  and  really  what  the  plaintiff  is       claiming is to displace Balaji and to  contend       that lie is heir of’ Dattu."       He therefore expressed the view       "’Therefore,  ill our opinion, once the  prin-       ciple is accepted, as indeed it must be accep-       822       ted,  that the property which Dattu  inherited       from Ramchandra was held by him absolutely  as       a full owner, then it is impossible to  accede       to  the  plaintiff’s  contention  that  Balaji       inherited to that property subject to  certain       limitations.  The possibility of there being a       defeasance only continued so long as Dattu was       alive.   When  he died he left  his  property,       which  was his absolute property, to his  heir       and  there is no reason in principle why  that       provision  with  regard to  defeasance  should       continue after the property had been inherited       by Balaji as the heir of Dattu." We  may say at once that this conclusion goes  against  what had been said by this Court in Shrinivas Krishnarao  Kango’s Case (1). It  has  been  overlooked  that the  heir  of  a  collateral succeeding  to  the sole surviving coparcener  inherits  the property absolutely, but subject to defeasance, and that the right  in  the  property  devolves on  his  heir,  who  must consequently  take  that  property  absolutely,  but   still subject  to defeasance, as no better title could  have  been inherited  so  long  as there was  the  possibility  of  the defeasance  or the absolute title by a widow of a family  of the  last  surviving  coparcener  adding  a  member  to  the coparcenery  by adopting a son to her deceased husband,  and in  overlooking what was stated in this connect ion by  this Court  in Shrinivas Krishnarao Kango’s Case (1), though  not as  a decision, but as a reasoning to come to a decision  in that case. We are therefore of opinion that this appeal should fail and accordingly dismiss it with costs of this appeal. (1)  (1955) 1 S.C.R. 1. Appeal dismissed.                     823