K RISHNAMURTHI VASUDEORAO DESHPANDE AND ANR. versus DHRUWARAJ

K RISHNAl\IURTHI VASUDEORAO DESHPANDE ANDANR. ... v. DHRU,VARAJ

(K. SuBBA RAO ancl RAGIIU]JAH DAYAL, JJ. )

. . ---·Hindu La.c-Joint 1amily-Adoption-Rif1htB acquired by.· adoptit-e son relatinf! back to date of death of· adoptfre father-: Properl!J-cCollateral succeeding to . co-parcener-lf inherits ·'. absolutely or subject to def<asance.

. Respondent was . adopted by' widow after· about 63 years of her husband's. death. The husband had predeceased his father, tN' 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's death 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 proper!ie• from the appellants, alleging . that the immove-able 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 pfopert~~s contet].cling'' .. ih3t K their grandmother was the full owner of the properties and thus became fresh stock pf descent and'. that they inherited the properties from their father io whom they had been alienated by K their grand_mother ;· .... · . · · · · · .·' The High Court held . that the alleged alienation by K of her share to her son was not binding on the .respondent; -and further held that the respondent could divest the appel-lants of the properties which belonged to the respondent's· adoptive grandfather. · · . · · . · ' _ _ The ___ question ' . \\'as \vhether the. respondent on his . adoption, could divest the appellants of the properties of . his adoptive father and grandfather; . . . . . .. Held, .that when_ person is the• 01vner of property possessing title - defeasible on. ·adoption,' not only. that title but also the .title of all persons claiming under him will be · ~t~nguished on the adoption. , • · · ~ ~. · .. ·

The heir of collateral succeeding to the sole surviv-ing co-parcener inherits· the property absoluteJy, 1btH subje~t to defeasance, and .... the right in the property dev.olves on his

1961 ·--'May,'5.

Krislmamurthi Vasudeorao Deshpande v.

1Jft1·u11J(ll'Uj

Raghubar Dayal J.

i:iUPHEME COURT· REPORTS

heirs who would take that property absolutely, but still subject to defeasauce, as no better title could have been inherited, for the character of the property does not change from the co-pareenary property to self acquired property, so long as there was the possibility of the <lefeasance of the absolute title by widow of the family of the last surviving cu-parcener adding inembcr to the co-parcenary. by adopting sun to her deceased husband.

8/1rinivas Krishnarao Kango v. Narayan Devji Kango and Urs. (1955) 1 S.C.R. 1, applied.

llamc/1andra lianrnant Kulkarni v. Halaji Datto Kulkarni I.L.R. 1955 Bom. 837, disapproved. '

Amarendru Afanoi11gh v. Sullatun Singh, 60 I.A. 242, <li~CUl)Sed,

An ant Bhikappa Patil (Al in or) v. Shankar Ramcl1an£lra Patil, 70 I.A. 232, discussed,

C1v1L APPELLATE Ju.RISDICTION : 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.

Purushottarn Tr-ilcumdas, N. S. Anilchinda and

M. S. K. Sastri, for the appellants.

K. R. Bengeri and A. G.

Ratnaparlchi, for

the respondent.

1961. May 5.

The Judgment of the Court

was delivered by.

RAGHUBAR DAYAL, J. Thi8 nppeal, 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 grand-father.

The facts giving rise to this question are as

2 s.c.R. SUPREME COURT REPORTS

follows : Bandegouda, father of ! he respondent, died in 1882, pre-deceasing his father Narasappa-gouda, who died later in 1892. Bandegouda left his widow Tungabai, who adopted Dhruvraj as her son on July 31, 1945.

Narasapphgouda, on his de~th, left two daughters, Krishnabai and Shyamabai alias Cham-avva. The two sisters sucr:eeded to their father's property in equal shares. We are not now con-cerned with the share of Shyamabai, the respon-dent's suit with respect to it having been dismissed.

Krishnabai died on October 21, 193:l. Her son Vasappa, surctwrled her and tlicd on February 201 1934, leaving two sons, the appellantR, Krisna-murti and Subb~ji. Dhruvraj, rPspondent, insti-tuted the suit for the recovery of the property from the two appellants alleging that the immo-vable properties formPrly belonged to thf' owner-ship of and Wl'l'P under thP vahiwat of the joint family of tt.t· above-mentioned Narnsappagouda Patil and Banr!egouda Patil. Trc suit also rel!lterl to declaration th<it the plaintiff 11·as entitled to the 'Patilki' rights in rcsprf'l of the village Bomba!, as tlw near relnt i,-e of Narasappagouda. The appellants denied tht> responcl<'nt's rights t0 the properties (•ontcmling that Krishnabai was the full owner of thP prnpcrties and thus beeame frpsh stock of desc·Pnt anrl that the appellants h'.td inherited the pniperties from their father Vasappa to whom they hDrl been alienat-ed by Krishnahai in 1930. The High Court held that the allegerl alienation by Krishnnbai of her share to Vasapp~, in. 1930 was not binding on the respondent as it amounted to gift. of immovable properties and was not made by registered document. It further held that the respondent could divest the appellants of the properties which belonged to the respondent's arloptive grandfather and upheld the decree of the trial Conrt with respect to the property which had

K rrllmcmurlh V M11dwriw D~hpanck , .. Dhruwar<>J

Raghuba;r Dn1r J.

JIJ61 --K 1wll11G11111rllli J<'GS11deorao DWlpande v. Dhruwaraj -Ragllllbar Dayal J.

gone in the possession of Krishnab.a.i on the death of her father.

This Court consider1>rl the rights of an adoptNl son with respect to the property of his adoptive father·and .o~ the collaterals, in Shrinivas Krishnarao Kango v. Narayan Devji Kango rmd Ors-('). The principles to be cdducerl from what was said in this case may be summarised thus :

(i) An adopted son is held entitled to take

in defea~ance of the rights acquired prior to his adoption on the ground 1 hat in the eye of law his adoption relates back, by legal fiction, to the date of the death of his adoptive father, he being put in the position of posthumous son.

(ii) As preferential heir, an adopted son

(-i) 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 tho death of her husband.

(iii) coparcenary continues to subsist so

long as there is in existence widow of coparcener capable of bringing son into existence by adop-tion; and if the widow made an adoption, the rights oi the adopted son 'ire 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 Ia.st coparcener.

(iv) The principle of relation back <tpplies

only whl)n the claim made by the adopted son relates to the esb.te of his adoptive father. The est11te may be definite and ascertained, :.s when he is the sole and absolute owner of the properties, or

(1) (1955) I S.C.R. 1.

2 S.C.R. SUPREME COURT REPORTS

it may be fluctuating as when he is !I member of joint Hindu family in which the interest of the coparceners is liable to increase by death or decrea-se 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 est11te of his adoptive father but to that of colla-teral. With reference to the claim with respect to the estate of collateral, the governing princi-ple is that inheritance can never be in abeyance, and that once it devolves on person who is the nearest heir under the law, it is thereafter not liable to be divested. When succession to the properties of 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 limited owner. Any one who inherits the estate of the adoptive father is his .heir, irrespective of the inheritance having passed through number of persons, each being the heir of the previous owner. This Court considered the case of Amarendra Mansingh v. Sanatan Singh(') which related to an impartible zamindari. The last of its holder was Raja Bibhitdendra. He died on December 10, 1922, unmarried. 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 case was whether Amarendra could divest Bana-malia of the estate, and it was answered in the positive by the Judicial Committee. This Court said at page 19:

(2) 1923 L.R. ~ l,A, 21-9,

Krish1111murt.111 17 asudeorao Deshpande v. DhruwarQ{j RaghulJar Dayal. J.

Kri~knam.urthi Va~ucleorao Deshpande v, Dhru.waraj

Raghubar Dayal J.

"The est.ate claimed was that of his adoptiv<' father, Brnjt>ndra, and if the adoption was at all valicl, it related back to the rlate of Brajcndra's cle:'.th, and enabled Amar!'rnlra to divest Ba1mmalai."

The last holder of the estate was not Brajen-rlra, the nrlopt i''<' fathf'r, but. Biblmrkwlra, who may be said to be the adopti1·e hro!lwr. The estate in his haml8 is dt'i<<'l'iht'Cl as the 1•state of Brajendra, the adoptive father. This Court saicl about the rlecision in this ease:

"This deciilion might be taken at the

most to ])(' au anthoriLy for the position that when an adoption is made to A, the adopted son is entitled to recover the estate of not merP ly when it has 1·rsted in his widow who makes the fldoption but also in any other heir of his. It. is no ·iuthority for the contention that he is entitled to recover the estate of which h1id vested in his heir prior to his adoption to A."

Ban1imal11i, heir of Bibhudendra, was considered

to be the heir of Brajendra also.

In considPrinp; the case of Anant Bhikappa Patil (ll{inor) v. 8hankar Ramchandra Patil('), this Court observNl at page 24 :

''When an 1tdoption is made by widow of either coparcener or 11 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 relatio11 back is subject to the limitation that al.ienations made prior to the date of adoption are ~inding 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 protec-ted. But no such safeguard exists in respect

(3) 1933 L.R. 70 I.;\. 232.

of property inherited from collateral, bcra.-use if the adopted sun is cntitkd on the theory of relation back to diVl'st that property the position •,if the rncs1w holder would be that of an owner possessing title clefrasible on adoption, and the residt of siwh adoption must be tu extinguish that title and that of all persons daiming urn ler him. The aliem'es from him would have no protcetion, as there could be no qw;stion of supporting the alirnrn-tions on the grnund of necessity or benefit."

It follows from these observations that if is an owner of property possessing title defeasible on adoption. not only that title but also the title of a.II persons claiming under him, will extinguish on the adoption.

In the present cast', Krishnabai owned the

property as foll owner on the death of her fat.her Nare.sappagomla, accordi11g to the Hil\(lu hw iu the area in which the prupei\v iu suit lay. But h<>r title was defuw;ible on Tungabai, widow of Bamle-guuda, adopting son to her 1111sbaml. Vasappa and after him, his smrn, inheritrnl this property of Krishnabai aml thus the appdltmts dainwd under Krishnabai. 'l'hcir stwh daim is thernforn < lefoasiblc on the u.duption of wn by Tungalmi. 'l'he fact that Krishnalmi iuheritecl the property of her father absolutely, does not uffoct this question of title being defeated on the adoption of sun by Tungabai. The character. of the property clurs not change, as suggcst<;Jd for thn appellants, from copar-cenary propNty to snlf-at·quirrnl prnpert.v of Krishnaba.i so lung as 'l'ungabai, tho widow of the family, exists and is capable of adopting son who becomes copa.rcener.

The case of 'Ill adopted son's claimi1tg to di-vest the heir of collateral, who died before the adoption took place of the property inherited from the collateral, is different from the case of his

K rish,.amurthi Vasudeorao Deshpande v. Dhruwaraj

Raghubar llaya

KrilJlmamurtki Vasudeorao DMhpande v. Dhruwaraj Ra.ghubar Dayal J.

i20 SUI REME COURT REPORTS tI962)

claiming the property which originally belonged to the adoptive father but had· devolved oil collateral and, after the death of the collateral which took place before the adoption deyolved on 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 pro-perty of the adoptive father, which, by force of circumstances, had passed through the hands of ce>llateral.

We may now consider the Full Bench Case of the Bombay High Court, Ramchandra Hanmant Kulkarn.i v. Balaji Datto Kulkarni,(') which over-ruled the judgment in the instant case. The ques-tion formulated for the decision of the Full Bench was :

"If on the death of 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 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 Hanmont had died during Ramchandra's lifotime, leaving behind him his widow Sitabai. The Watan property of Ram-chandra 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 proper-ty devoled upon his son Balaji. Sitabai, widow of Hanmant, adopted Ramchandra, the plaintiff, on January 21, l94b. Ramchandra thereafter institut-ed the suit against Balaji, son of Datto, and claimed that property which originally belonged to his adop-tive 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

Coui:t in the above case said, in answer to the ques· tion 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. Slumkar that Dattu inherited this property subject to defeasance, the defeasancc coming into ope· ration in the event of the potential mother Sitabai adopting sun 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 hut 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 arc dealing with property in the hands of Dattu's heir. It cannot be said th:i-t qf.ta the estate of Dattu the plaintiff is an hefr preferential to Balaji, and really what the plaintiff is claiming is to displllce Balaji and to contend that he is heir of Dattu."

He therefore expressed the view :

"Therefore, in our opinion, once the prin-ciple is arcepted, as indeed it must be accep-

Kri81uiamurtlii VIUUd.orao Desh}l'Ullk v. Dliruwaraj Ragliubar Daya./ J.

K rishoomurthi V1Uudeoiao Deshpande v. Dhruwaraj Ragh'llhar Dayal J.

ted, that the property which Dattu inherited from Ramehandm was held by him absolute-ly as full owner, t.hen it i8 impossible to accede to the plaintiff's contention that Balaji inherited to that property subject to certain limitations. The possibility of there being defeasauce only continued so long as Dattu was alive. When he died he left his property, which was his absolute propert,y, to his heir and there is no rt>ason 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 eouc:lusion goes

against what had been said by this Court in Shrinivas Krishnarao Kango' s Case (1).

It has been overlooked that the heir of col-

lateral succeeding to the sole surviving coparcener inherits the property absolutely, hut subject to def~ easance, and that the right in the property devol-ves on his heir, who must eousequently take that property absolutely, but still subject to defea11-ance, as no better title could have been inherited so long as there WR.S the possibility of the defrasance or the absolute title by widow of family of the last surviving eoparcener adding member t0 the coparcenery by adopting son to her deceased husband, and in overlooking what was stated in this connection by this Court in Shrin·ivas Krishnarao Kango's Case('), though not as decision, but as reasoning to come to decision in that case. We are therefore of opinion that this appeal ijhould fail and accordingly dismiss it with costs of this appeal.

(I) (1955) I S.C.R. I.

Appeal dismissed.