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 defendants-appellants of the properties- of his adoptive father and grandfather. The facts giving rise to this question are as 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 property which had 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. 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 positive by the Judicial Committee. This Court said at page 19: (2) 1923 L.R. 60 I.A. 249.
"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.
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 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 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. 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
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-
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.