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PETITIONER: SHRINIVAS KRISHNARAO KANGO

       Vs.

RESPONDENT: NARAYAN DEVJI KANGO AND OTHERS.

DATE OF JUDGMENT: 23/03/1954

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA MUKHERJEA, B.K. HASAN, GHULAM

CITATION:  1954 AIR  379            1955 SCR    1  CITATOR INFO :  R          1955 SC 206  (13)  F          1959 SC 906  (10)  A          1962 SC  59  (5,10,11)  RF         1970 SC1730  (3)  RF         1972 SC1401  (9,11)  R          1974 SC 878  (14,15)  R          1991 SC2176  (32)

ACT:    Hindu law-Joint family- Whether there is presumption that property  held by any member thereof is joint--Existence  of some nucleus-Burden of Proving self-acquisition-Property  in possession  of  a family  from  time  immemorial-Presumption whether it is ancestral-Adoption-Rights acquired by adoptive son  relating  back  to date of death  of  adoptive  father- Doctrine of relation back Whether applicable to estate of  a collateral.

HEADNOTE:    It is well-settled that proof of the existence of a Hindu joint family does not lead to the presumption that  property held  by  any member of the family is joint and  the  burden rests  upon any one asserting that any item of property  was joint  to establish the fact.  But where it  is  established that the family possessed some joint property which from its nature  and relative value may have formed the nucleus  from which  the property in question may have been  acquired  the burden  shifts  to the party  alleging  self-acquisition  to establish  affirmatively  that  the  property  was  acquired without. the aid of the joint family property. Held,  that on the facts the nucleus was not  sufficient  to discharge  the initial burden which lay on the plaintiff  of proving  that  the acquisitions were made with  the  aid  of joint family properties.   Held,  further,  that even if the burden  shifted  on  the defendants  of establishing self acquisitions that had  been discharged by proof and the ancestral lands were intact  and the income derived therefrom must have been utilized for the maintenance of the members of the family. While it is not unusual for a family to hold properties  for generations without a title deed, an acquisition by a member

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would ordinarily be evidenced by a dead.  When, therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it  is  ancestral  and  to throw the  burden  on  the  party pleading self-acquisition to establish it.   On  adoption by the Hindu widow, the adopted son  acquires all the rights of an aurasa son and those rights relate back to the date of the death of the adoptive father. The ground on which an adopted son is held entitled to  take in  defeasance of the rights acquired prior to his  adoption is that in 2 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.  These principles, however, apply only when the claim of the adopted  son relates to the estate of the  adoptive  father. But  where  succession to the properties of a  person  other than 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. The decision to the contrary in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (70 I.A. 232) dissented from. Appalaswami  v. Suryanarayanamurti (I.L.R. 1948 Mad. 440  at 447, 448); Babubhai Girdharal v. Ujamlal Hargovandas (I.L.R. 1937  Bom.  708); Venka taramayya v. Seshamma  (I.L.R.  1937 Madras  1012); Vythianatha v. Varadaraja (I.L.R 1938  Madras 696);  Pratapsing Shivsing v. Agarsingii Raisingji (46  I.A. 97  at  107); Vellanki Venkata v. Venkatarama  (4  I.A.  1); Verabhai  v. Bhai Hiraba (30 I.A. 234)- Chandra v.  Goiarbai (I.L.R.  14 Bom. 463); Amarendra Mansingh v.  Sanatan  Singh (60  I.A.  242) ; Balu Sakharam v. Lehoo Sambhaji  (I.L.  R. 1937  Bom  508);  Neelangouda  Limbangouda  v.  Ujjan  Gowda (A.I.R. 1948 P.C. 165; 50 Bom.  L.R. 682); Bhubaneswari Debi v.  Nilkomul Lahiri (12 I.A. 137): Kally Prosonno  Ghose  v. Gocool  Chunder Mitter (I.L.R. 2 Cal. 293); Nilkomul  Lahuri v. Jotendro Mohan Lahuri (I.L.R. 7 Cal. 178); Raghunandha v. Brozo  Kishoro.  (3  I.  A.  154);  Bachoo  Hurkisondas   v. Mankorebai  (34  I.A.  107);  Vijaysingji  Chhatrasingji  v. Shivasangji   Bhimasangji   (62  I.A.   161);   Kalidas   v. Krishnachandra Das (2 B.L.R. 103 F.B.) referred to.   Tivaji Annaji  v.  Hanmant  Ramchandra  (I.L.R.  1950  Bombay  510) approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 164 of 1952. Appeal  from the Judgment and Decree dated the 12th  August, 1949,  of the High Court of Judicature at Bombay in  Appeals Nos.  63 and 148 of 1947, from Original Decree, arising  out of the Decree dated the 31st July, 1946, of the Court of the Civil Judge, Senior Division, Bijapur, at Bijapur in Special Civil- Suit No. 28 of 1945. J.   B. Dadachanjiand Naunit Lal for the appellant.  S.   B.  Jathar  and  Ratnaparkhi  Anant  Govind  for   the respondents. 1954.  March 23.  The Judgment of the Court was delivered by VENICATARAMA AYYAR J. 3 VENKATARAMA  AYYAR J.-This appeal arises out of a  suit  for partition  instituted by the appellant in the Court  of  the Civil  Judge Senior Division, Bijapur.  The relationship  of the  parties  will appear from  the  following  genealogical table:

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                        Ramchandra                             :                             : -----------------------------------------------------------        :                                     :        :                                     :      Siddopant                            Krishnarao      alias Sadashiv                       (d. 1897)      (d.1899)                              m. Rukmini           :                                  (D-6)           :                                   : Gundo m. Laxmibai (D-5)                       :           :                                   :           :                                   :                                            I Shrinivas      Devji m. Akkubai (D-4)              (adopted son)      (adopted)                             plaintiff      d. 6-9-1935.          :          : --------------------------------------    :          :                 : Narayan   Raghavendra         Gundo D-1           D-2             D-3    Siddopant   and  Krishnarao  were  members  of  a   joint undivided family.  Krishnarao died in 1897 leaving behind  a widow,  Rukminibai, who is the sixth defendant in the  suit. Siddopant died in 1899 leaving him surviving his son, Gundo, who died in 1901 leaving behind a widow, Lakahmibai, who  is the  fifth  defendant.  On 16th December,  1901,  Lakshmibai adopted  Devji,  who died on 6th May,  1935,  leaving  three sons,  defendants  Nos. 1 to 3, and a  widow,  Akkubai,  the fourth  defendant.  On 26th April, 1944, Rukminibai  adopted the  plaintiff,  and on 29th June, 1944, he  instituted  the present  suit  for partition claiming a half  share  in  the family properties. Siddopant  and  Krishnarao  represented  one  branch  of   a Kulkarni  family  and were entitled for their share  of  the Watan lands, to the whole of S. No. 138 and a half share  in S.  Nos.  133 and 136 in the village of Ukamnal and  a  half share  in  S.  Nos.  163, 164 and  168  in  the  village  of Katakanhalli.  The other branch was represented by Swamirao, who was entitled for his half share 4 of the Watan lands, to the whole of S. No. 137 and to a half share in S.Nos. 133 and 136 in the village of Ukamnal and to a  half share in S. Nos. 163, 164 and 168 in the village  of Katakanhalli.  Siddopint purchased a house under Exhibit  D- 36  and lands under Exhibits D-61 and D-64, and  constructed two  substantial houses.  His grandson, Devji, also built  a house.  All these properties are set out in Schedules A  and B to the plaint, A Schedule consisting of houses and  house- sites  and B Schedule of lands.  It is the plaintiff’s  case that  these  properties  were  either  ancestral,  or   were acquired with the aid of joint family funds.  He accordingly claims a half share in them as representing Krishnarao. Swainirao died about 1903 issueless, and on the death of his widow  shortly thereafter, his properties devolved on  Devji as his nearest agnate, and they are set out in Schedule C to the  plaint.   The plaintiff claims that by  reason  of  his adoption  he  has  become a preferential  heir  entitled  to divest  Devji of those properties, and sues to recover  them from  his sons. -In the alternative, he claims a half  share in  them on the ground that they had been blended  with  the admitted Joint family properties.

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The  defendants  denied  the  truth  and  validity  of   the plaintiff’s adoption.  They further contended that the  only ancestral properties belonging to the family were the  Watan lands in the villages of Ukamnal and Katakanhalli, that  the purchases made by Siddopant were his self-acquisitions, that the suit houses were also built with his separate funds, and that  the  plaintiff was not entitled to  a  share  therein. With reference to the properties in Schedule C, they pleaded that  the.  plaintiff could not by reason  of  his  adoption divest Devji of the properties which had devolved on him  as heir.   They denied that those properties had  been  blended with the joint family properties. Both  the  Courts below have held that the adoption  of  the plaintiff is true and valid, and that question is no  longer in  dispute  before  us.   They  have  also  held  that  the purchases made by Siddopant and the houses built by him were his self-acquisitions, as was also the house built by Devji. The trial Court held that the 5 plaintiff  was entitled to a half share in S. Nos.  639  and 640  in Schedule A on the ground that they belonged  to  the family as ancestral properties; but the High Court held that that  had not been established.  As regards  the  properties set  out in Schedule C, while the trial Court  decided  that the  appellant  was entitled to them exclusively  under  the decision  of  the  Privy Council  in  Anant  Bhikappa  Patil (Minor) v. Shankar Ramchandra Patil(1), the High Court  held following  a  Full Bench decision of that  Court  in  Jivaji Annaji   v.  Hanmant  Ramchandra(2),  that   they   belonged exclusively  to Devji, and that the plaintiff could  lay  no claim  to  them.  Both the Courts a reed in  negativing  the contention  of the plaintiff that there had been a  blending of  these properties with the joint family  properties.   In the result, the High Court granted a decree in favour of the plaintiff  for partition of the admitted Watan  ,lands,  and otherwise  dismissed  the  suit.   The  present  appeal   is preferred against this decision. The  first contention that has been urged on behalf  of  the appellant  is that the finding of the Courts below that  the properties purchased by Siddopant and the houses constructed by  him  and  Devji were  self-acquisitions,  is  erroneous, firstly because the burden was wrongly cast on the plaintiff of proving that they were made with the aid of joint  family funds, and secondly because certain documents which had been tendered  in  evidence  by the plaintiff  had  been  wrongly rejected  as  inadmissible.   On  the  first  question,  the argument  of the appellant is that as the family  admittedly possessed  income-producing nucleus in the  ancestral  Watan lands  of the extent of 56 acres, it must be  presumed  that the acquisitions standing in the name of Siddopant were made with  the aid of joint family funds, that the burden lay  on the defendants who claimed that they were  self-acquisitions to  establish that they were made without the aid  of  joint family  funds,  that the evidence adduced by them  fell  far short  of  it,  and that the presumption in  favour  of  the plaintiff  stood  unrebutted.   For  deciding  whether  this contention is well-founded, it is necessary to see (1)70 I.A. 232. (2) I.L.R. 195o Bom. 510. 6 what  the  findings of the Courts below  are  regarding  the extent  of  the ancestral properties, the income  they  were yielding, the amounts that were invested by Siddopant in the purchases  and house constructions, and the other  resources that were available to him.

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On  the question of the nucleus, the only  properties  which were  proved  to belong to the joint family were  the  Watan lands  of  the extent of about 56 acres, bearing  an  annual assessment  of  Rs. 49.  There is no  satisfactory  evidence about  the  income which these lands were  yielding  at  the material  period.  Rukminibai, P.W. 6, and Akkubai, D.W.  1, gave conflicting evidence on the point.  But neither of them could have had much of first-hand knowledge, as both of them came  into the family by marriage long after  the  nineties, and  were  then very young.  The lessee who  cultivated  the lands  of  Swamirao, who owned, a share in the  Watan  lands equal  to ’ that of Siddopant and Krishnarao,  deposed  that the net income was Rs. 30 per annum.  On a consideration  of the  entire evidence, the trial Court put the annual  income at Rs. 150.  On appeal, the learned Judges of the High Court were  also  of the opinion that the income  from  the  lands could  not have been considerable.  They  characterised  the oral  evidence  of  P.W.  6  and D.W.  I  on  the  point  as worthless.  They observed that the assessment of less than a rupee per acre was an indication that the lands were of poor quality.   They referred to the fact that both the  brothers were  obliged  to go to the State of Hyderabad  for  earning their  livelihood, and that Krishnarao had been  obliged  to borrow under Exhibits D-89 and D-90 even petty amounts  like Rs.  26  and Rs. 10 on onerous terms, and  they  accordingly concluded that the income from the lands could not have beep sufficient even for maintenance. Coming  next  to  the  acquisitions,  on  21st  May,   1871, Siddopant  purchased under Exhibit D-36 a house  for  Rs.200 from  his  mother-in-law.  On 11th  May,1885,  he  purchased under  Exhibit D-61 S. No. 23 Ukamnal village for a  sum  of Rs. 475.  On 23rd July, 1890, he purchased under Exhibit  D- 64  lands bearing S. Nos. 2025 and 2140 for Rs.  2,400.   In this suit, we are concerned 7 only  with  S.  No. 2025.  Apart from  these  purchases,  he constructed two houses, one on S. Nos. 639, 640 and 641, and another  on S.Nos. 634 and 635.  D.Ws. 2 and 3 have  deposed that these constructions would have cost between Rs.  20,000 and  Rs.  25,000,  and both the Courts  have  accepted  this evidence.   It  was  argued for  the  appellant  that  these witnesses had no first-hand knowledge of the  constructions, and  that their evidence could not be accepted as  accurate. But making all allowances for inexactitude, there cannot  be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on S. Nos. 642, 644 and  645 at a cost estimated between Rs. 2,000 and 4,000.  Thus, sums amounting  to  about  Rs. 30,000 had been  invested  in  the acquisition  of  these properties and  construction  of  the houses.   Where did this money come from ? The  evidence  is that  Siddopant was a Tahsildar in the State  of  Hyderabad, and  was  in  service for a period of  40  years  before  he retired on pension.  Though there is no precise evidence  as to  what  salary  he was drawing, it  could  not  have  been negligible,  and  salary is the least of  the  income  which Tahsildars  generally  make.  The lower Courts came  to  the conclusion that having regard to the smallness of the income from   the  ancestral  lands  and  the  magnitude   of   the acquisitions  made, the former could not be held to  be  the Foundation  for  the  latter, and on the  authority  of  the decision   of   the   Privy  Council   in   Appalaswami   v. Suryanarayanamurti  (1) held -that the initial burden  which lay on the plaintiff of establishing that the properties  of which  a division was claimed were joint  family  properties had  not been discharged.  The law was thus stated  in  that

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case: "  The  Hindu  law  upon this aspect of  the  case  is  well settled.  Proof of the existence of a joint family does  not lead to the presumption that property held by any member  of the  family  is  joint, and the  burden  rests  upon  anyone asserting  that any item of property was joint to  establish the  fact.   But  where it is established  that  the  family possessed  some  joint property which from  its  nature  and relative  value may have formed the nucleus from  which  the property in question may (1)  I.L.R. 1948 Mad. 440 at 447, 448 8 have been acquired, the burden shifts to the party  alleging self-acquisition   to  establish  affirmatively   that   the property  was acquired without the aid of the  joint  family property:  See  Babubhai Girdharlal v.  Ujamlal  Hargovandas (1), Venkataramayya v. Seshamma(2) Vythianatha v. Vdradaraja (3)."     It  is  argued for the appellant that in that  case  the father  had  obtained under the partition deed,  Exhibit  A, properties  of  the  value of Rs. 7,220,  that  he  acquired properties  of  the  value of Rs. 55,000,  and  that  never- theless,  it  was observed by the Privy Council that  "  the acquisition  by the appellant of the property under  Exhibit A,  which  as  between him and his  sons  was  joint  family property, cast upon the appellant (the father) the burden of proving that the property which he possessed at the time  of the  plaint  was  his self-acquired  property  ";  and  that therefore on proof that there existed ancestral lands of the extent  of  56  acres,  the burden was  shifted  on  to  the defendants to establish self-acquisition. Whether  the  evidence  adduced  by  the  p  plaintiff   was sufficient  to  shift the burden which initially  rested  on ,him of establishing that there was adequate nucleus out  of which  the acquisitions could have been made is one of  fact depending on the nature and the extent of the nucleus.   The important thing to consider is the income which the  nucleus yields.   A building in the occupation of the members  of  a family- and yielding no income could not be a nucleus out of which  acquisitions’ could be made, even though it might  be of  considerable  value.   On  the  other  hand,  a  running business  in  which the capital  invested  is  comparatively small  might conceivably product substantial  income,  which may well form the foundation of the subsequent acquisitions. These  are not abstract questions of law, but  questions  of fact  to  be  determined on the evidence in  the  case.   In Appalaswami  v. Suryanarayanamurti (4), the nucleus  of  Rs. 7,220 included 6/16th share in a rice mill and  outstandings of  the  value  of Rs. 3,500, and  as  the  acquisitions  in question were made during a period of (1)  I.L.R. 1937 Bom. 708. (2)  I.L.R. 1937 Mad. 1012, (3) I.L.R. 1038 Mad. 696. (4) I.L.R. 1948 Mad. 440. 9 16 years it was possible that the joint family income  might have  contributed  therefor.  But in the present  case,  the finding of the Courts is that the income from the lands  was not sufficient even for the maintenance of the-members,  and on  that they were right in holding that the  plaintiff  had not  discharged the initial burden which lay on  ’him.   But even  if  we are to accept the contention of  the  appellant that on proof of the existence of the Watan lands the burden had  shifted  on  to  the  defendants  to  prove  that   the acquisitions  were  made  without the aid  of  joint  family

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funds,  we must hold on the facts that that burden had  been discharged.   In Appalaswami v. Suryanarayanamurti  (1),  in holding that the father had discharged the burden of proving that  the  acquisitions  were his  own,  the  Privy  Council observed: "The evidence establishes that the property acquired by  the appellant  under Exhibit A is substantially intact, and  has been  kept distinct.  The income derived from  the  property and  the small sum derived from the sale of part of it  have been  properly applied towards the expenses of  the  family, and there is no evidence from which it can be held that  the nucleus  of joint family property assisted the appellant  in the acquisition of the properties specified in the schedule, to the written statement." Likewise, in the present -case all the ancestral Watan lands are  intact, and are available for partition, and the  small income  derived  from them must have been utilised  for  the maintenance of the members of the family.  Whether we  hold, as  did  the  learned Judges of the  High  Court,  that  the plaintiff  had failed to discharge the burden which  lay  on him   of  establishing  sufficient  nucleus,  or  that   the defendants  had discharged the burden of  establishing  that the  acquisitions were made without the aid of joint  family funds,  the  result  is the same.   The  contention  of  the appellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must fail. (1)  I.L.R. 1948 Mad. 440. 10 It  was,  next contended that certain documents  which  were tendered in evidence had been wrongly rejected by the Courts below,  and  that the finding  of  self-acquisition  reached without reference to those documents should not be accepted. These  documents are judgments in two suits for  maintenance instituted by Rukminibai in the Sub-Court, Bijapur, C.S. No. 445  of  1903  and  C.S. No. 177  of  1941  and  in  appeals therefrom,  C.A.  No.  5 of 1905 and C.A.  No.  39  of  1942 respectively   in  the  District  Court,   Bijapur.    These documents,  were  produced before the, trial Court  on  17th July,  1946, along with 28 other documents when the  hearing was about to commence and were rejected.  On appeal, dealing with the complaint of the plaintiff that these documents had been wrongly rejected, the High, Court observed : " Apart from the fact that these documents were produced  at a  very late stage of the case............  these  judgments could  have been admitted in evidence only if they could  be shown  to be relevant under any of the sections 40 to 44  of the Indian Evidence Act.  None of these sections applied  in this  case.   The trial Judge was, therefore, right  in  not admitting them in evidence." The  argument of the appellant is that these  judgments  are admissible under section 13 of the Evidence Act as instances in  which  there was an assertion that the  suit  properties belonged  to the joint family.  For the respondents,  it  is contended  that  the dispute between the  parties  in  those litigations was only about the quantum of maintenance to  be awarded,  that  no question of title to the  properties  was directly involved, and that section 13 was inapplicable.  We are  unable  to  accept  this  contention.   The  amount  of maintenance to be a warded would depend on the extent of the joint  family properties, and an issue was actually frame  d on  that  question.  Moreover, there was a prayer  that  the maintenance should be charged on the family properties,  and the same was granted.  We are of opinion that the  judgments are  admissible  under  section 13 of the  Evidence  Act  as

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assertions of Rukminibai that the properties now in. dispute belonged to the joint family. 11 But there is another difficulty in the way of the  reception of  this evidence.  It was contended by the  respondents  on the  basis of the observations in the judgment of  the  High Court  already extracted that the real ground  of  rejection was that the documents were produced late.  The order of the trial  Court  rejecting the document has not  been  produced before us.  But there, is on the record a petition filed  by the  plaintiff  on 25th July, 1946, after the  evidence  was closed   and  before  arguments  were  addressed,  for   the admission  of the 32 documents rejected on 17th July,  1946, and  therein it is stated that "they have been  rejected  on the  ground of late production." The defendants endorsed  on this  petition that if the documents were to be admitted  at that stage, an opportunity would have to be given to them to adduce evidence and the trial would-have to be re-commenced; and  the  prayer  for  admission  of  these  documents   was accordingly opposed.  The Court dismissed the petition.  The rejection of the documents was therefore clearly made  under Order XIII, rule 2, and there are no grounds for now setting aside that order and reopening the whole case.  This  ground of objection must therefore fail. Apart  from the Watan lands which are admittedly  ancestral, and apart from the purchases made under Exhibits.  D-36,  D- 61  and D-64 and the houses which we have held to  be  self- acquisitions, there are certain plots mentioned in  Schedule A in which the plaintiff claims a half share.  These are the sites  on  which  the houses  have  been  constructed.’  The contention  of  the  plaintiff is that  they  are  ancestral properties.   The trial Court held that in the absence of  a title  deed showing that the sites were acquired by  members of the family they must be held to be ancestral, and on that ground, decreed to the plaintiff a half share in S. Nos. 639 and  640.  The High Court reversed this  decision  observing generally that the evidence relating to the house sites  was not clear, "when they were acquired or by whom", and that in the  absence  of evidence showing that they formed  part  of -the  joint family properties, they must be held to be  self acquisitions.   With  respect, we are unable to  agree  with this view.  While it is not 12 unusual  for  a family to hold  properties  for  generations without  a  title  deed, an acquisition by  a  member  would ordinarily  be  evidenced  by a deed.   When,  therefore,  a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it  is  ancestral  and  to throw the  burden  on  the  party pleading self-acquisition to establish it. It  is  necessary  in  this view  to  examine  the  evidence relating to the several plots for which no title deeds  have been produced.  S. Nos. 634 and 635 form one block, on which one of the houses has been constructed.  The sanads relating to  them are Exhibits D-45 and D-46, and they merely  recite that  the grantee was in occupation of the plots,  and  that was  confirmed.   There is reference in them to  a  previous patta  granted  by the Government.  Exhibits 52  to  55  are pattas  showing  that the properties comprised  therein  had been  acquired from the Government.  If the identity  of  S. Nos.  634  and 635 with the properties  comprised  in  these documents  had been established, the plea that they are  not ancestral  would have been made out.  But that has not  been done, and the presumption in favour of their being ancestral property stands unrebutted.  The claim of the plaintiff to a

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half  share therein must be allowed.  S. Nos. 639,  640  and 641  form  one  block,  on  which  there  is  another  house standing.   There is no title deed for S. No. 639.   Exhibit D-47  is the sanad for S. No. 640, and it merely  recognises the previous occupation by    the   grantee,  and  that   is consistent   with  its  character  as  ancestray   property. Exhibit D-48 is the sanad for S.   No.  641  and is  in  the same  terms  as Exhibits D-45 and D-46.  The  claim  of  the plaintiff with reference to all these items must be  upheld. We  have  next  S. Nos. 642, 644 and  645,  on  which  Devji constructed  a house.  The relative sanads are  respectively Exhibits D-49, D-50 and D-51.  Their contents are similar to those  of Exhibits D-45 and D-46, and for the same  reasons, these plots must be held to belong to the joint family.   We have  next S. No. 622 on which there stands a house.  It  is clear from Exhibit D-43 that this was purchased by Devji  at a  Government auction in the year 1909.  The  plaintiff  can lay -no claim to it.  Then there is 13 S.   No. 643.  The oral evidence relating to this is that  a family  temple stands on it.  It cannot be partitioned.   In the result, it must be held that the plots, S. Nos. 634  and 635,  S. Nos. 639, 640 and 641 and S. Nos. 642, 644 and  645 are ancestral properties, and that the plaintiff is entitled to  a  half share therein.  As  substantial  superstructures have been put thereon, the appropriate relief to be  granted to the plaintiff is that he be given half the value of those plots as on the date of the suit. It  remains  to  deal with the claim of  the  plaintiff  for possession  of C Schedule properties on the ground  that  by adoption he became the preferential heir of Swamirao and  is consequently entitled to divest Devji and his successors  of these properties.  The contention of the appellant based  on the  decision of the Privy Council in Anant  Bhikappa  Patil (Minor) v. Shankar Ramchandra Patil (1) is that on  adoption the  adopted son acquires all the rights of an  aurasa  son, that  these rights relate back to the date of the  death  of the  adoptive father, and that in consequence his  right  to share in the joint family properties and to inherit from the collaterals  should  both be worked out as from  that  date. The contention of the respondents based on Jivaji Annaji  v. Hanmant Ramchandra (2) is that the doctrine of relation back does  not  extend to properties which are inherited  from  a collateral.  The question thus raised is one of considerable importance, and involves a decision as to the correctness of the  law  as laid down in Anant Bhikappa  Patil  (Minor)  v. Shankar Ramchandra Patil (1). Considering  the question on principle, the ground on  which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is 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.  As observed by Ameer  Ali J. in Pratapsing Shivsing v. Agarsingji Raisingji (3), (1)  70 I.A. 232. (2)  I.L.R. 1950 Bom. 5IO (3) 46 I.A. 97 at 107. 14 Again  it  is to be remembered that an adopted  son  is  the continuator  of  his adoptive father’s line  exactly  as  an aurasa  son, and that an adoption, so far as the  continuity of  the  line  is concerned,  has  a  retrospective  effect; whenever the adoption may be made there is no hiatus in  the continuity  of the line.  In fact, as West and Buhler  point out  in  their  learned treatise on  Hindu  Law,  the  Hindu

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lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders   the   continuation   of   the-line   by   adoption impossible." It  is on this principle that when a widow succeeds  to  her husband’s  estate  as heir and then makes an  adoption,  the adopted  son  is  held entitled, as  preferential  heir,  to divest her of the estate.  It is on the same principle  that when  a  son dies unmarried and his mother succeeds  to  his estate  as  his  heir, and then makes an adoption  to  h  er husband, that adopted son is held entitled to divest her  of the  estate.  (Vide Vellanki Venkata v.  Venkatarama(1)  and Verabhai  v.  Bhai  Hiraba(2).   The  application  of   this principle   when  the  adoption  was  made  to  a   deceased coparcener raised questions of some difficulty.  If a  joint family consisted of two brothers A and B, and A died leaving a widow and the properties were taken by survivorship by  B, and  then  W  took a boy X in  adoption,  the  question  was whether  the  adopted son could claim a half  share  in  the estate  to  which A was entitled.  It was  answered  in  the affirmative on the ground that his adoption -related back to the  date of the death of A. But suppose before W  makes  an adoption, B dies leaving no son but a widow C and the estate devolves on her, can W thereafter make an adoption so as  to confer any rights on X to the estate in the hands of C ?  It was  held in Chandra v. Gojarabai(3) that the power to  make an adoption so as to confer a right on the adopted son could be  exercised only so long as the coparcenary of  which  the adoptive  father was a member subsisted, and that  when  the last  of the coparceners died and the properties  thereafter devolved on his (1) 4 I.A. 1                (3) I.L.R. 14 Bom. 463. (2)  30 I.A. 234. 15 heir,  the  coparcenary  had  ceased  to  exist,  and   that therefore W could not adopt so as to divest the estate which had  vested in the heir of the last coparcener.  In view  of the  pronouncements of the Judicial Committee in  Pratapsing Shivsing  v. Agarsingji Raisingji(1) and Amarendra  Mansingh v. Sanatan Singh(2) that the validity of an adoption did not depend  on  whether the adopted son could divest  an  estate which  had devolved by inheritance or not, a Fall  Bench  of the  Bombay  High  Court  held in  Balu  Sakharam  v.  Lahoo Sambhaji(3) that in such cases the adoption would be  valid, but  that the estate which had devolved upon the heir  could not be divested.  In Anant Bhikappa Patil (Minor) v. Shankar Ramchandra  Patil(4), the Privy Council dissented from  this view, and held that the coparcenary must be held to  subsist so  long as there was in existence a widow of a  coparcerier capable of bringing a son into existence by adoption, and if she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as  heir of  the  last coparcener.  In substance, the estate  in  the hands  of  such  heir  was treated  as  impressed  with  the character  of  coparcenary property so long as there  was  a widow alive who could make an adoption.  This principle  was re-affirmed in Neelangouda Limbangouda v. Ujjan Gouda(5). Thus  far,  the scope of the principle of relation  back  is clear.   It applies only when the claim made by the  adopted son  relates  to the -estate of his adoptive  father.   This estate  may be definite  and ascertained as when he  is  the ’sole  and  absolute owner of the properties, or it  may  be fluctuating as when he is a member of a joint Hindu  family,

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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 entitled to take as on the date of  his  death. The point for (1) 46 I.A. 97.      (4) 70 I.A. 232. (2) 6o I.A. 242. (5) A.I.R. 1948 P.C. 165: 50 Bom.L.R. 682. (3)  I.L.R. 1937 BOM. 508. 16 determination now is whether this doctrine of relation  back can  be  applied  when the claim made  by  the  adopted  son relates  not to the estate of his adoptive father but  of  a collateral.   The theory on which this doctrine is based  is that  there  should be no hiatus in, the continuity  of  the line of the adoptive father.  That, by its very nature,  can apply only to him and not to his collaterals.  In the Oxford Dictionary  the  word  "collateral" is  defined  as  meaning "descended  from the same stock but not in the  same  line." The  reason behind the rule that there should be  continuity in line does not warrant its extension to collaterals.   Nor is  there  any authority until we come to  the  decision  in Anant Bhikappa Patil (Minor) v.Shankar Ramchandra  Patil(1), which applied the theory of relation back to the  properties inherited  from  collaterals.  With reference to  them,  the governing  principle  was 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.  The law is thus stated in Mulla’s Hindu  Law, 11th Edition, at pages 20 and 21 : "On the death of a Hindu, the person who is then his nearest heir  becomes entitled at once to the property left by  him. The  right  of succession vests in him  immediately  on  the death  of  the owner of the property.  It cannot  under  any circumstances remain in abeyance in expectation of the birth of a preferential heir where such heir was not conceived  at the time of the owner’s death. "Where  the estate of a Hindu has vested in a person who  is his  nearest  heir at the time of his death,  it  cannot  be divested  except  either by the birth of a  preferable  heir such  as a son or a daughter, who was conceived at the  time of  his death, or by adoption in certain cases of a  son  to the deceased."’ In  Bhubaneswari Debi v. Nilkomul Lahiri(2), the facts  were that  Chandmoni,  the widow of one Rammohun,  died  on  15th June, 1867, and the estate ,devolved on his nephew, Nilkomul as  reversioner. Subsequently, Bhubaneswari Debi, the  widow of a (1) 70 I.A. 232.              (2) 12 I.A.137. 17 brother of Rammohun called Sibnath, took a boy, Jotindra, in adoption,  and the suit was by him for half a share  in  the estate.   If his adoption could relate back to the  date  of death  of  Sibnath, which was on 28th  May,  1861,  Jotindra would  be  entitled to share the  inheritance  equally  with Nilkomul.   That was the argument put forward in support  of his claim. (Vide page 139)., In negativing this  contention, Sir Barnes Peacock observed:- "According to the law as laid down in the decided cases,  an adoption  after the death of a collateral does  not  entitle the adopted son to come in as heir of the collateral. It is true that reference is also made to the fact that  the boy adopted was not actually in existence on the date of the death  of  Chandmoni  ; but that,  however,  would  make  no difference  in  the  legal position,  if  the  principle  of relation  back was applicable.  One of the cases  which  the

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Privy Council had in mind was Kally Prosonno Ghose v. Gocool Chunder  Mitter(1), which was relied on in the  High  Court. Vide Nilkomul Lahuri v. Jotendro Mohan Lahuri(2).  There, it was  hold that an adopted son could not claim the estate  of his adoptive father’s paternal uncle, which had devolved  by inheritance  prior  to his adoption.  In  1888  Golapchandra Sarkar Sastri observed in his Tagore Law Lectures on the Law of Adoption: "As regards collateral succession opening before,  adoption, it has been held that an adoption cannot relate back to  the death  of the adoptive father so as to entitle  the  adopted son to claim the estate of a collateral relation, succession to  which opened before his adoption." (Vide pages  413  and 414).  The law was thus well settled that when succession to the properties of a person other than an adoptive father was involved,  ,the  principle applicable was not  the  rule  of relation  back  but the rule that  inheritance  once  vested could not be divested. Before  examining  the  decision  in  Anant  Bhikappa  Patil (Minor) v. Shankar Ramchandra Patil(3), it is (1)  I.I..R. 2 Cal. 295. (2)  I.L.R. 7 Cal. 178. (3) 70 I.A. 232. 3 18 necessary,  to  refer to the earlier pronouncements  of  the PrivY  Council  on the question, which formed the  basis  of that  decision.   In  Pratap  Sing  Shivsing  v.  Agarsinqit Raisingji(1)  the question related to a jivai grant  of  the village of Piperia which had been made by the Ruler of Gamph to  a  junior member on condition, that in default  of  male descendants  it  should  revert to  the  thakur.   The  last incumbent,  Kaliansing,  died issueless  in  October,  1903, leaving him surviving his widow, Bai Devla.  On 12th  March, 1904, she adopted Pratapsing Shivsing.  The thakur then sued to recover possession of the village on the ground that  the adopted son was not a descendant contemplated by the  grant, and that the adoption was invalid, as it would divest him of the village which had vested in him in October, 1903.   With reference  to the first contention, the  Judicial  Committee observed that under the Hindu Law an adopted son was as much a  descendant as an aurasa son.  On the  second  contention, they  held that the principles laid down in  Raghunandha  v. Brozo  Kishoro(2) and Bachoo Hurkisondas.  Mankorebai(3)  as to divesting of joint family properties which had vested  in other persons were applicable, and that having regard to the interval between the date of the death of Kaliansing and the date  of  the  adoption Pratapsing could  be  treated  as  a posthumous son.  It will be noticed that the thakur did  not claim  to succeed to the village on the death of  Kaliansing as his heir but on the ground of reverter under the terms of the  grant, and no question of relation back of  title  with reference  to  the succession of a collateral’s  estate  was involved. In  Amarendra  Mansingh v. Sanalan  Singh(1),  the  question arose  with  reference to an impartible zamindari  known  as Dompara  Rai  in  Orissa.   The last  of  its  holder,  Raja Bibhudendra, died on 10th December, 1922, unmarried, and  by reason  of  a  family custom  which  excluded  females  from succeeding  to the Raj, a collateral Banamalai succeeded  to it.   On  18th  December,  1922,  Indumati,  the  mother  of Bibhudendra,  adopted Amarendra to her  husband,  Brajendra. The question (1) 46 I.A. 97.               (3) 34 I.A. 107. (2) 3 I.A. 154.               (4) 60 1,A, 242,

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19 was whether by his adoption Amarendra could divest BanamaIai of  the estate.  It was held by the Privy Council  that  the validity of an adoption did not depend on whether an  estate could  be  divested  or  not,  and  that  the  point  to  be considered  was whether the power to adopt had come  -to  an end  by  there  having come into existence a  son,  who  had attained  the  full  legal capacity to  continue  the  line. Applying  these principles, the Judicial  Committee  decided that  the  adoption was valid, and that Amarendra  took  the estate  as the preferential heir.  It will be seen  that  in this  case  no  claim of the adopted son  to  succeed  to  a collateral was involved, and no question arose as to how far the  theory of relation back could be invoked in support  of such  a claim.  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.  The point for  determination actually  was whether by reason of Bibhudendra having  lived for about 20 years, the power of his mother to adopt to  her husband  had come to an end.  It may be noted that  but  for the  special  custom which excluded women  from  inheriting, Indumati would have succeeded Bibhudendra as mother, and  an adoption  by her would divest her of the estate and vest  it in  Amarendra,  and  the  case  would  be  governed  by  the decisions in Vellanki Venkata v. Venkatarama(1) and Verabhai v. Bhai Hiraba(2).  The only difference between these  cases and  Amarendra Mansingh v. Sanatan Singh(3) was that on  the death   of  Bibhudendra  his  heir  was  not  Indumati   but Banamalai.   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. Vijaysingji Chhatrasingji v. Shipsangji Bhim,,sangji(4) is a case  similar  to the one in Amarendra Mansingh  v.  Sanatan Singh(3). The property concerned was (1) 4 I. A. T.               (3) 60 I.A. 242. (2) 30 I.A. 234.             (4) 62 I.A. 161, 20 an  impartible  estate.  Chandrasangji who was  one  of  the holders  of the estate died, and was succeeded by  his  son, Chhatrasingji.    Chhatrasingji  was  then  given  away   in adoption,   and  thereafter  Bhimsa@gji,  the.  brother   of Chhatrasingji, succeed ed to the estate.  Then the widow  of Chhatrasingji made an adoption, and the question was whether the  adopted  son could divest the estate in  the  bands  of Bhimsangji.   It was held that he could.  Here again,  there was  no  question of collateral succession,  the  point  for decision  being precisely the same as in Amarendra  Mansingh v. Sanatan Singh(1). We next come to the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil(2).  The facts of that case were that  one Bhikappa died in 1905, leaving him  surviving  his widow,  Gangabai,  and  an undivided son  Keshav.   In  1908 Narayan,  the divided brother of Bhikappa died,  and  Keshav succeeded  to his properties as heir.  In 1917  Keshav  died unmarried,  and  as the properties were  Watan  lands,  they devolved on a collateral, Shankar.  In 1930 Gangabai adopted Anant,  and  he sued Shankar to recover  possession  of  the properties  as the adopted son of Bhikappa.  The High  Court had  held that as the joint family ceased to exist  in  1917

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when-Keshav  died,  and as the properties  had  devolved  on Shankar  as his heir, the adoption, though valid, could  not divest him of those properties.  The Privy Council held that the  coparcenary must be taken to continue so long as  there was  alive  a  widow of the deceased  coparcener,  and  that GaDgabai’s  adoption  had the effect of vesting  the  family estate in Anant, even though it had descended on Shankar  as the  heir of Keshav.  The decision so far as it  relates  to joint family properties calls for no comment.  When once  it is held that the coparcenary subsists so long as there is  a widow of a coparcener alive, the conclusion must follow that the adoption of Anant by Gangabai was valid and operated  to vest  in him the joint family properties which had  devolved on  Shankar.  Then, there were the properties ’which  Keshav had  inherited  from Narayan , -which had also  devolved  on Shankar as his (1) 60 I-A, 242. (2) 701 I.A. 232, 21 heir.  With reference to them, the Privy Council observed : "  If  the effect of an adoption by the mother of  the  last male  owner  is  to take his estate out of the  hands  of  a collateral of his who is more remote than a natural  brother would  have been, and to constitute the adopted  person  the next heir of the last male owner, no distinction can in this respect  be  drawn between pro perty which had come  to  the last male owner from his father and any other property which he may have acquired." On this reasoning, it was held that Anant was entitled  also to  the properties inherited by Keshav from Narayan.   Anant Bhikappa Patil (Minor) v. Shankar Ram Chandra Patil(1) must, in  our  opinion, be taken to decide that  the  doctrine  of relation back will apply not only as regards what was  joint family  estate  but also properties which  had  devolved  by inheritance from a collateral.  Otherwise, it is  impossible to  justify the conclusion that the personal  properties  of Keshav which had vested in Shankar in 1917 would re-vest  in Anant even though he was adopted only in 1930.  The question arise  how  this  decision  is to  be  reconciled  with  the principle  laid down in Bhubaneswari Debi v. Nilkomul Lahiri (2)   that  an adoption made subsequent to the  death  of  a collateral do-es not divest the inheritance which had vested prior to that date.  That that principle was not intended to be departed from is clear from the following observations of Sir George Raiikin: "  Neither the present case nor Amarendra’s  case(3)  brings into  ’question the rule of law considered in Bhuba  neswari Debi v. Nilkomul Lahiri(3) (of Kalidas Das v. Krishnachandra Das(4)).........  Their  Lordships say nothing as  to  these decisions   which   appear  to  apply  only  to   cases   of inheritance’ " Nor  does the discussion in Anant Bhikappa Patil (Minor)  v. Shankar Ramchandra Patil(1) throw much light on this matter. Considerable emphasis is laid on the fact that a  ooparcener has  only  a  fluctuating  interest  in  the  joint   family properties,  that it may increase by death and  decrease  by birth, and that such a qualified (1) 70 I.A.232.             (3) 60 I. A. 242. (2) 12 I.A. 137.             (4) 2 B.L.R. 103 F.B. 22 interest  as  that must carry with it the  liability  to  be divested  by  the  introduction  of  a  new  coparcener   by adoption.   This reasoning, however, is wholly  inapplicable to  property which is not held in coparcenary, such  as  the estate  of  a  collateral  devolving  by  inheritance.   The

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judgment  then  refers  to the decisions  of  the  Board  in Amarendra  Mansingh  v.  Sanatan  Singh(1)  and  Vijaysingji Chhatrasingji   v.  Shivsangji  Bhimsangji(2),  and  it   is observed  that the impartible estates which  were  concerned therein  were treated as separate property and not as  joint family  property,  a conclusion which does  not  settle  the question, because even on the footing that the estates  were separate  properties, no question of  collateral  succession was  involved in them, the claim under litigation being’  in respect of the estate of the adoptive father and covered  by the  principle  already established in Vellanki  Venkata  v. Venkatarama  (3)  and  Verabhai v. Bhai  Hiraba  (4).   Then follows  the conclusion already quoted that  no  distinction can  be drawn between properties which come from the  father and  properties which come from others.  This is  to  ignore the  principle that the doctrine of relation back  based  on the  notion  of continuity of line can apply  and  had  been applied,  only to the estate of the adoptive father and  not of collaterals. We may now turn to Jivaji Annaji v.  Hanmant Ram.  Chandra (5) wherein the scope of the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (6)  came up  for consideration.  There, the material facts were  that Keshav  and  Annappa  who were members  of  a  joint  family effected a partition, and thereafter, Annappa died in  1901, leaving  behind  a  widow, Tungabai.   Keshav  died  leaving behind  a son, Vishnu, who died in 1918 without male  issue, and the property being Watan lands devolved on a  collateral called  Hanmant  as  his heir.   In  1922  Tungabai  adopted Jivaji.  The question was whether he was entitled to  divest the  properties  which had become vested in Hanmant  as  the preferential  heir of Vishnu, and the decision was  that  he was not.  It will be noticed that      (1)60 I.A. 242.     (4) 30 I.A. 234.      (2) 62 I.A. 161.    (5) I.L.R. 1950 Bom. 510.      (3) 4 I.A. 1.  (6) 70 I.A. 232. 23 Annappa to whom the adoption was made had at the time of his death  become divided from his brother, and  the  principles applicable  to adoption by a widow of a deceased  coparcener had  therefore no application.  It was a case in  which  the adopted  son laid a claim to properties, not on  the  ground that  they  belonged to the joint family into which  he  had been adopted but that they belonged to a collateral to  whom he  was entitled to succeed as a preferential heir,  and  it was  sought  to divest Hanmant of the properties  which  had vested  in  him in 1918 on the strength of the  decision  in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1) The contention was that if Anant could as adopted son divest the  personal  properties of Keshav which  had  devolved  on Shankar  as his preferential heir, Jivaji could also  divest the  properties  which  had  devolved  on  Hanmant  as   the preferential  heir  of Vishnu.  The learned Judges  made  no secret  of  the fact that this contention  received  support from the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra  Patil (1); but they were impressed by  the  fact that  the  statement  of the law  in  Bhubaneswari  Debi  v. Nilkomul Lahiri (2) as to the rights of an adopted son quoad the  estate  of a collateral had been reaffirmed,  and  they accordingly  held that the decision in Anant Bhikappa  Patil (Minor)  v. Shankar Ramchandra Patil (1) did not  intend  to alter the previous law that an adopted son could not  divest properties which had been inherited from a collateral  prior to  the  date of adoption.  They  distinguished  the  actual decision on the ground that as Keshav had vested in him both the ancestral properties as well as the properties inherited

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from Narayan, and as admittedly there was a relation back of the rights of Anant in respect of the ancestral  properties, there  should likewise be a relation back in respect of  the separate  properties.   But it is difficult to  follow  this distinction.  If under the law the rights of an adopted  son differ  according  as  they  relate to  the  estate  of  his adoptive  father or to property inherited from  collaterals, the  fact  that both classes of properties are held  by  the same  person can make no difference in the quality of  those rights.  The position will (1) 70 I.A. 232.                (2) 12 1 A. 137. 24 be  analogous  to that of a coparcener who  has  also  self- acquisitions, in which case, the devolution by  survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in Anant Bhikappa Patil (Minor) v. Shankar Ramchandra Patil (1), and as it was an  authority binding  on  the  Indian Courts, they could  not  refuse  to follow it, and were obliged to discover a distinction.  This Court, however, is not hampered by any such limitation,  and is  free  to consider the question on its  own  merits.   In deciding  that  an  adopted son is entitled  to  divest  the estate  of a collateral, which had devolved  by  inheritance prior  to  his  adoption, Anant Bhikappa  Patil  (Minor)  v. Shankar  Ramchandra Patil (1) went far beyond what had  been previously  understood  to  be  the  law.   It  is  not   in consonance  with  the principle well established  in  Indian jurisprudence that an inheritance could not be in  abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father.  Moreover, the law  as laid down therein leads to results which are  highly inconvenient.  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  a  joint  family,  are amply  protected.   But  no  such safeguard  exists  in respect of property inherited  from  a collateral,  because 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 (1)  70 I.A. 232. 25 or benefit.  And if the adoption takes place long after  the succession to the collateral had opened-in this case it  was 41  years thereafter -and the property might have  meanwhile changed  hands  several times, the title of  the  purchasers would be liable to be disturbed quite a long time after  the alienations.  We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient.  The  claim of the appellant to divest a vested estate rests on a  legal fiction, and legal fictions should not be extended so as  to lead to unjust results.  We are of opinion that the decision in  Anant  Bhikappa  Patil  (Minor)  v.  Shankar  Ramchandra Patil(1)  in  so far as it relates to  properties  inherited

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from  collaterals is not sound, and that in respect of  such properties the adopted son can lay no claim on the ground of relation back.  The decision of the High Court in respect of C, Schedule properties must therefore be affirmed. It was I finally contended that the defendants had blended C Schedule  properties  along  with  the  admitted   ancestral properties so as to impress them with the character of joint family  properties.   The  burden  of  proving  blending  is heavily  on  the plaintiff.  He has to  establish  that  the defendants  had so dealt with the properties. as to show  an intention  I to abandon their separate claim over it.   This is  a  question  of  fact on which  the  Courts  below  have concurrently  found against the appellant, and there are  no grounds for differing from them. In  the  result,  the  decree of the  lower  Court  will  be modified  by  granting the plaintiff a decree for  half  the value  of the plots, S. Nos. 634 and 635, S. Nos.  639,  640 and  641’and S. Nos. 642, 644 and 645 as on the date of  the suit.  Subject to this modification, the decree of the lower Court  is  confirmed, and; the appeal is dismissed.  In  the circumstances, the parties will bear their own costs in this appeal.                               Appeal dismissed. (1) 70 I.A. 232. 4 26