Appeal No 164 of 1952
Appeal from the Judgment and Decree dated the 12th August 1949 of the High Court of Judicature at Bombay in Appeals Nos 63 and 148 of 1947 from Original Decree arising out of the Decree dated the 31st July 1946 of the Court of the Civil Judge Senior Division Bijapur at Bijapur in Special Civil Suit No 28 of 1945
J B Dadachanjiand Naunit Lal for the appellant
section B Jathar and Ratnaparkhi Anant Govind for the respondents
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 Ramchandra       Siddopant Krishnarao alias Sadashiv d 1897 d1899 m Rukmini  D 6   Gundo m Laxmibai D 5      I Shrinivas Devji m Akkubai D 4 adopted son adopted plaintiff d 6 9 1935
     Narayan Raghavendra Gundo D 1 D 2 D 3 Siddopant and Krishnarao were members of a joint undivided family
Krishnarao died in 1897 leaving behind a widow Rukminibai who is the sixth defendant in the suit
Siddopant died in 1899 leaving him surviving his son Gundo who died in 1901 leaving behind a widow Lakahmibai who is the fifth defendant
On 16th December 1901 Lakshmibai adopted Devji who died on 6th May 1935 leaving three sons defendants Nos 1 to 3 and a widow Akkubai the fourth defendant
On 26th April 1944 Rukminibai adopted the plaintiff and on 29th June 1944 he instituted the present suit for partition claiming a half share in the family properties
Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands to the whole of section No 138 and a half share in section Nos 133 and 136 in the village of Ukamnal and a half share in section 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 section No 137 and to a half share in SNos 133 and 136 in the village of Ukamnal and to a half share in section 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 by Devji
The trial Court held that the 5 plaintiff was entitled to a half share in section 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 vs Shankar Ramchandra Patil1 the High Court held following a Full Bench decision of that Court in Jivaji Annaji vs Hanmant Ramchandra2 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 170 IA 232
2 ILR 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 PW 6 and Akkubai DW 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 PW 6 and DW 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 Rs200 from his mother in law
On 11th May1885 he purchased under Exhibit D 61 section No 23 Ukamnal village for a sum of Rs 475
On 23rd July 1890 he purchased under Exhibit D 64 lands bearing section Nos 2025 and 2140 for Rs 2400
In this suit we are concerned 7 only with section No 2025
Apart from these purchases he constructed two houses one on section Nos 639 640 and 641 and another on SNos 634 and 635
2 and 3 have deposed that these constructions would have cost between Rs 20000 and Rs 25000 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 section Nos 642 644 and 645 at a cost estimated between Rs 2000 and 4000
Thus sums amounting to about Rs 30000 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 vs 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 ILR 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 vs Ujamlal Hargovandas 1 Venkataramayya vs Seshamma2 Vythianatha vs 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 7220 that he acquired properties of the value of Rs 55000 and that never theless it was observed by the Privy Council that  the acquisition by the appellant of the property under Exhibit A which as between him and his sons was joint family property cast upon the appellant the father the burden of proving that the property which he possessed at the time of the plaint was his self acquired property  and that therefore on proof that there existed ancestral lands of the extent of 56 acres the burden was shifted on to the defendants to establish self acquisition
Whether the evidence adduced by the p plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus
The important thing to consider is the income which the nucleus yields
A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions  could be made even though it might be of considerable value
On the other hand a running business in which the capital invested is comparatively small might conceivably product substantial income which may well form the foundation of the subsequent acquisitions
These are not abstract questions of law but questions of fact to be determined on the evidence in the case
In Appalaswami vs Suryanarayanamurti 4 the nucleus of Rs 7220 included 616th share in a rice mill and outstandings of the value of Rs 3500 and as the acquisitions in question were made during a period of 1 ILR 2 ILR  3 ILR 4 ILR 9 16 years it was possible that the joint family income might have contributed therefor
But in the present case the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members and on that they were right in holding that the plaintiff had not discharged the initial burden which lay on him
But even if we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds we must hold on the facts that that burden had been discharged
In Appalaswami vs 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 ILR 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 CS No 445 of 1903 and CS No 177 of 1941 and in appeals therefrom CA No 5 of 1905 and CA 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 therefore fail
Apart from the Watan lands which are admittedly ancestral and apart from the purchases made under Exhibits
D 36 D 61 and D 64 and the houses which we have held to be self acquisitions there are certain plots mentioned in Schedule A in which the plaintiff claims a half share
These are the sites on which the houses have been constructed  The contention of the plaintiff is that they are ancestral properties
The trial Court held that in the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral and on that ground decreed to the plaintiff a half share in section 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
section 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 section 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
section Nos
639 640 and 641 form one block on which there is another house standing
There is no title deed for section No 639
Exhibit D 47 is the sanad for section 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 section 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 section 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 section 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 section 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 section Nos 634 and 635 section Nos 639 640 and 641 and section 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 vs 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 vs 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 vs 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 vs Agarsingji Raisingji 3 1 70 IA 232
2 ILR 3 46 IA 97 at 107
14 Again it is to be remembered that an adopted son is the continuator of his adoptive father s line exactly as an aurasa son and that an adoption so far as the continuity of the line is concerned has a retrospective effect whenever the adoption may be made there is no hiatus in the continuity of the line
In fact as West and Buhler point out in their learned treatise on Hindu Law the Hindu 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 vs Venkatarama1 and Verabhai vs Bhai Hiraba2
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 vs Gojarabai3 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 IA Bom
2 30 IA 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 vs Agarsingji Raisingji1 and Amarendra Mansingh vs Sanatan Singh2 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 vs Lahoo Sambhaji3 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 vs Shankar Ramchandra Patil4 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 vs Ujjan Gouda5
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 IA 97
4 70 IA 232
2 6o IA 242
5 3 ILR 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 vs
Shankar Ramchandra Patil1 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 vs Nilkomul Lahiri2 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 IA 232
2 12 IA137
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 vs Gocool Chunder Mitter1 which was relied on in the High Court
Vide Nilkomul Lahuri vs Jotendro Mohan Lahuri2
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 vs Shankar Ramchandra Patil3 it is 1 II R 2 ILR 3 70 IA 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 vs Agarsinqit Raisingji1 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 vs Brozo Kishoro2 and Bachoo Hurkisondas
Mankorebai3 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 vs Sanalan Singh1 the question arose with reference to an impartible zamindari known as Dompara Rai in Orissa
The last of its holder Raja Bibhudendra died on 10th December 1922 unmarried and by reason of a family custom which excluded females from succeeding to the Raj a collateral Banamalai succeeded to it
On 18th December 1922 Indumati the mother of Bibhudendra adopted Amarendra to her husband Brajendra
The question 1 46 IA 97
3 34 IA 107
2 3 IA 154
4 60 1A 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 vs Venkatarama1 and Verabhai vs Bhai Hiraba2
The only difference between these cases and Amarendra Mansingh vs Sanatan Singh3 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 vs Shipsangji Bhimsangji4 is a case similar to the one in Amarendra Mansingh vs Sanatan Singh3
The property concerned was 1 4 I A T 3 60 IA 242
2 30 IA 234
4 62 IA 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 Bhimsagji 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 vs Sanatan Singh1
We next come to the decision in Anant Bhikappa Patil Minor vs Shankar Ramchandra Patil2
The facts of that case were that one Bhikappa died in 1905 leaving him surviving his widow Gangabai and an undivided son Keshav
In 1908 Narayan the divided brother of Bhikappa died and Keshav succeeded to his properties as heir
In 1917 Keshav died unmarried and as the properties were Watan lands they devolved on a collateral Shankar
In 1930 Gangabai adopted Anant and he sued Shankar to recover possession of the properties as the adopted son of Bhikappa
The High Court had held that as the joint family ceased to exist in 1917 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 IA 232 21 heir
With reference to them the Privy Council observed   If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a collateral of his who is more remote than a natural brother would have been and to constitute the adopted person the next heir of the last male owner no distinction can in this respect be drawn between pro perty which had come to the last male owner from his father and any other property which he may have acquired On this reasoning it was held that Anant was entitled also to the properties inherited by Keshav from Narayan
Anant Bhikappa Patil Minor vs Shankar Ram Chandra Patil1 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 vs 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 case3 brings into question the rule of law considered in Bhuba neswari Debi vs Nilkomul Lahiri3 of Kalidas Das vs Krishnachandra Das4 
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 vs Shankar Ramchandra Patil1 throw much light on this matter
Considerable emphasis is laid on the fact that a ooparcener has only a fluctuating interest in the joint family properties that it may increase by death and decrease by birth and that such a qualified 1 70 IA232
3 60 I A 242
2 12 IA 137
4 2 BLR 103 FB 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 vs Sanatan Singh1 and Vijaysingji Chhatrasingji vs Shivsangji Bhimsangji2 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 vs Venkatarama 3 and Verabhai vs 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 vs Hanmant Ram
Chandra 5 wherein the scope of the decision in Anant Bhikappa Patil Minor vs 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 160 IA 242
4 30 IA 234
2 62 IA Bom
3 4 IA 1
6 70 IA 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 vs 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 vs Shankar Ramchandra Patil 1 but they were impressed by the fact that the statement of the law in Bhubaneswari Debi vs 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 vs 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 IA 232
2 12 1 A 137
24 be analogous to that of a coparcener who has also self acquisitions in which case the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties
The fact is as frankly conceded by the learned Judges they were puzzled by the decision in Anant Bhikappa Patil Minor vs 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 vs 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 IA 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 vs Shankar Ramchandra Patil1 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 section Nos 634 and 635 section Nos 639 640 and 641 and section Nos 642 644 and 645 as on the date of the suit
Subject to this modification the decree of the lower Court is confirmed and the appeal is dismissed
In the circumstances the parties will bear their own costs in this appeal
Appeal dismissed
1 70 IA 232


Summary:
It is well settled that proof of the existence of a Hindu joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one asserting that any item of property was joint to establish the fact
But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without
the aid of the joint family property
Held that on the facts the nucleus was not sufficient to discharge the initial burden which lay on the plaintiff of proving that the acquisitions were made with the aid of joint family properties
Held further that even if the burden shifted on the defendants of establishing self acquisitions that had been discharged by proof and the ancestral lands were intact and the income derived therefrom must have been utilized for the maintenance of the members of the family
While it is not unusual for a family to hold properties for generations without a title deed an acquisition by a member would ordinarily be evidenced by a dead
When therefore a property is found to have been in the possession of a family from time immemorial it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self acquisition to establish it
On adoption by the Hindu widow the adopted son acquires all the rights of an aurasa son and those rights relate back to the date of the death of the adoptive father
The ground on which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is that in 2 the eye of law his adoption relates back by a legal fiction to the date of the death of his adoptive father he being put in the position of a posthumous son
These principles however apply only when the claim of the adopted son relates to the estate of the adoptive father
But where succession to the properties of a person other than an adoptive father is involved the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested
The decision to the contrary in Anant Bhikappa Patil Minor vs Shankar Ramchandra Patil 70 IA 232 dissented from
Appalaswami vs Suryanarayanamurti ILR at 447 448 Babubhai Girdharal vs Ujamlal Hargovandas ILR  Venka taramayya vs Seshamma ILR 1937 Madras 1012 Vythianatha vs Varadaraja ILR 1938 Madras 696 Pratapsing Shivsing vs Agarsingii Raisingji 46 IA 97 at 107 Vellanki Venkata vs Venkatarama 4 IA 1 Verabhai vs Bhai Hiraba 30 IA 234 Chandra vs Goiarbai ILR  Amarendra Mansingh vs Sanatan Singh 60 IA 242  Balu Sakharam vs Lehoo Sambhaji IL R  Neelangouda Limbangouda vs Ujjan Gowda AIR 1948 PC 165  Bhubaneswari Debi vs Nilkomul Lahiri 12 IA 137 Kally Prosonno Ghose vs Gocool Chunder Mitter ILR  Nilkomul Lahuri vs Jotendro Mohan Lahuri ILR  Raghunandha vs Brozo Kishoro
3 I A 154 Bachoo Hurkisondas vs Mankorebai 34 IA 107 Vijaysingji Chhatrasingji vs Shivasangji Bhimasangji 62 IA 161 Kalidas vs Krishnachandra Das 2 BLR 103 FB referred to
Tivaji Annaji vs Hanmant Ramchandra ILR 1950 Bombay 510 approved