K RISHNAMURTHI VASUDEORAO DESHPANDE AND ANR. versus DHRUWARAJ

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 grandfather.

p. 814

The facts giving rise to this question are as follows : Bandegouda, father of he respondent, died in 1882, pre-deceasing his father Narasappagouda, who died later in 1892. Bandegouda left his widow Tungabai, who adopted Dhruvraj as her son on July 31, 1945.

pp. 814–815

Narasapphgouda, on his de~th, left two daughters, Krishnabai and Shyamabai alias Chamavva. The two sisters sucr:eeded 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.

p. 815

Krishnabai died on October 21, 193:l. Her son Vasappa, surctwrled her and tlicd on February 20 1934, leaving two sons, the appellantR, Krisnamurti and Subb~ji. Dhruvraj, rPspondent, instituted the suit for the recovery of the property from the two appellants alleging that the immovable properties formPrly belonged to thf' ownership of and 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 a frpsh stock of desc·Pnt anrl that the appellants h'.td inherited the pniperties from their father Vasappa to whom they hDrl been alienated 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 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 arloptive grandfather and upheld the decree of the trial Conrt with respect to the property which had gone in the possession of Krishnab.a.i on the death of her father.

pp. 815–816

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 :

p. 816

(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 a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son.

p. 816

(ii) As a 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.

p. 816

(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 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.

p. 816

(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. it may be fluctuating as when he is 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 est11te 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.

pp. 816–817

(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(') which related to an impartible zamindari. The last of its holder was Raja Bibhitdendra. 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 case was whether Amarendra could divest Banamalia of the estate, and it was answered in the positive by the Judicial Committee. This Court said at page 19:

p. 817

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

p. 817

"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

p. 818

Amar!'rnlra to divest Ba1mmalai." The last holder of the estate was not Brajenrlra, 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 of Brajendra, the adoptive father. This Court saicl about the rlecision in this ease:

p. 818

"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 A 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 B which h1id vested in his heir prior to his

p. 818

adoption to A." Ban1imal11i, heir of Bibhudendra, was considered to be the heir of Brajendra also.

p. 818

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

p. 818

''When an 1tdoption is made by a widow of either a coparcener or 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-

p. 818

ted. But no such safeguard exists in respect (3) 1933 L.R. 70 I.;\. 232. of property inherited from a collateral, bcra.use if the adopted sun is cntitkd on the theory of relation back to diVl'st that property the position •,if the holder would be that of an owner possessing a 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-

pp. 818–819

tions on the grnund 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 a.II persons claiming under him, will extinguish on the adoption.

p. 819

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 title was defuw;ible on Tungabai, widow of Bamleguuda, adopting a 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 a 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 a sun by Tungabai. The character. of the property clurs not change, as suggcst<;Jd for thn appellants, from coparcenary 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 a son who becomes a copa.rcener.

p. 819

The case of adopted son's claimi1tg 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 i20 SUI REME COURT REPORTS tI962) claiming the property which originally belonged to the adoptive father but had· devolved oil a collateral and, after the death of the collateral which took place before the adoption deyolved 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 ce>llateral.

pp. 819–820

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

p. 820

"If on the death of a sole surviving coparcener 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?"

p. 820

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 Hanmont had died during Ramchandra's lifotime, 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 devoled upon his son Balaji. Sitabai, widow of Hanmant, adopted Ramchandra, the plaintiff, on January 21, l94b. Ramchandra thereafter instituted the suit against Balaji, son of Datto, and claimed that property which originally belonged to his 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.

pp. 820–821

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 :

p. 821

".:.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 a sun into the family of

p. 821

Ramchandra." He said at the page 852 :

p. 821

"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

p. 821

Dattu." He therefore expressed the view :

p. 821

"Therefore, in our opinion, once the principle is arcepted, as indeed it must be accepted, that the property which Dattu inherited from Ramehandm was held by him absolutely as a 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 a 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

pp. 821–822

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

p. 822

It has been overlooked that the heir of a collateral succeeding to the sole surviving coparcener inherits the property absolutely, hut subject to def~ easance, and that the right in the property devolves on his heir, who must eousequently take that property absolutely, but still subject to defea11ance, as no better title could have been inherited so long as there the possibility of the defrasance or the absolute title by a widow of a family of the last surviving eoparcener adding a member t0 the coparcenery by adopting a 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 a decision, but as a reasoning to come to a decision in that case.

p. 822

We are therefore of opinion that this appeal ijhould fail and accordingly dismiss it with costs of this appeal.

p. 822

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

p. 822

Appeal dismissed.

p. 822