Shrinivas Krishnarao Kango Vs. Narayan
Devji Kango & Ors  INSC 32 (23 March 1954)
AIYYAR, T.L. VENKATARAMA MUKHERJEA, B.K.
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)
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.
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
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
there from must have been utilized for the maintenance of the members of the
While it is not unusual for a family to hold
properties for generations without a title deed, an acquisition by a member
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
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
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)
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
S. B. Jathar and Ratnaparkhi Anant Govind for
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:
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
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.
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
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.
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 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 the less, 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
(4) I.L.R. 1948 Mad. 440.
9 16 years it was possible that the joint
family income might have contributed there for. 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 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 there from, 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 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
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 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
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 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, 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.
(2) 6o I.A. 242. (5) A.I.R. 1948 P.C. 165: 50
(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 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.
(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
The question (1) 46 I.A. 97. (3) 34 I.A. 107.
(2) 3 I.A. 154. (4) 60 1,A, 242, 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 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 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 property 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
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 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 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
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 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.
(1) 70 I.A. 232.